Home » Nigerian Cases » Supreme Court » C. I. Olaniyan & Ors. V. University Of Lagos & Anor (1985) LLJR-SC

C. I. Olaniyan & Ors. V. University Of Lagos & Anor (1985) LLJR-SC

C. I. Olaniyan & Ors. V. University Of Lagos & Anor (1985)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C.

Three separate Suits- Suit No. LD/1659/80, Suit No. LD/1660/80 and Suit No. LD/1661/80 respectively – were filed in the court of first instance by Appellants who were Plaintiffs, against the University of Lagos and the University of Lagos Council, the present Respondents as Defendants. Pleadings were ordered, filed, and duly delivered in each suit. The parties filed, each, an Amended Statement of Claim and an Amended Statement of Defence. At the close of pleadings, those three suits were then consolidated for hearing.

The 1st Appellant was by letter ADM/REG/360 dated 13th September, 1965, offered appointment as a Professor of Zoology in the Faculty of Science with effect from 1st September, 1965. The letter conveying this offer was tendered as Ex. “P2”. The offer Ex. “P2” was accepted by the 1st Appellant and the Memorandum as to the Terms and Conditions of the Appointment of 1st Appellant was tendered as Ex. “P1”. The Regulations Governing Service in the University of Lagos Senior Staff which accompanied the offer, Ex.”P2″, was tendered as Ex. “P3”. The letter terminating the appointment of 1st Appellant and paying him six months’ salary in lieu of notice was tendered as Ex. “P4”. The 1st Appellant replied, returning the Respondents’ cheque issued to him for N5,901.00 (Five thousand, nine hundred and one naira) representing six months’ salary in lieu of notice to the Respondents.

His letter (1st Appellant’s) was tendered as Ex. “P5”. The same process was repeated in respect of the 2nd and 3rd Appellants who were offered appointments as Professor of Law and Professor of Educational Psychology respectively. In each case, there was an offer of Appointment by the University, an acceptance of that offer, a Memorandum of Appointment, a Copy of the Regulations Governing Service in the University, a Termination of Appointment, a Rejection of the purported Termination of Appointment and a return of the cheque for six months’ salary in lieu of notice. In each case also, the Appellants regarded the “purported termination” of their respective appointments as “ultra vires, null and void and of no effect whatsoever”. I shall consider some of these vital documents in greater details later in this judgment.

After due hearing on relevant evidence, the learned trial judge Bada, J. held:-

“The Plaintiffs who are holders of public office with legal status in the established pensionable cadre of the public service of the Federation are entitled to remain in office until properly removed in accordance with the procedure applicable to their removal in the Regulations which apply to them…..In the result the Plaintiffs’ claims succeed and I hereby grant the following reliefs in the indorsement in their respective Amended Statements of Claim namely:

“1. Declaration that-

(a) the 1st, 2nd and 3rd Plaintiffs are still

(i) Professor of Zoology

(ii) Professor of Law and Dean of the Faculty of Law and

(iii) Deputy Vice-Chancellor and Professor of Educational Psychology respectively in the University of Lagos

(b) the purported termination of the appointment of each of the Plaintiffs as contained in the letter REG/23A of 30th December, 1980 is ultra vires of the Defendants contrary to the provisions of Section 17 of the University of Lagos Act 1967 as amended.

The defendants, their servants and or agents are hereby restrained from preventing any of the Plaintiffs from performing any of the functions and duties of his office or offices or interfering with the enjoyment of the rights, privileges and benefits attached to his office or offices.
The Defendants are hereby ordered to restore each of the Plaintiffs to his post and office or offices and to all rights and privileges attached thereto.”

The above was the judgment of the trial court.

The Defendants, now Respondents, aggrieved by the above judgment of the court of first instance then appealed to the Court of Appeal, Lagos Division, on 3 grounds alleging Errors in Law and Misdirections. The Court of Appeal held, allowing the appeal to it from the judgment of Bada J., that the contract of the Plaintiffs/Appellants were validly determined and that “the judgment and orders made by the Lagos High Court in the consolidated suits delivered on the 23rd June, 1981, are hereby set aside and a judgment dismissing the said suits substituted”. Ademola and Nnaemeka-Agu, JJ.C.A., both concurred.

The Plaintiffs/Appellants have now appealed to this Court. Six grounds of Appeal were filed alleging various Errors in law or Misdirections. Each side filed its Brief of Argument and addressed the court extensively in elaboration of the points raised and argued in its respective Brief.

The 1st Ground of Appeal deals with the statutory powers of the Respondents to employ and/or terminate the employment of certain categories of staff and contends that acting in consonance with, and within these powers, the Respondents’ action in terminating the employment of the Appellants will be intra vires and valid. But if it is found that the Respondents acted outside those powers, their purported action would be ultra vires, null and void, of no effect and of no legal consequence.

Ground 1 complains:-

“(1) Error in Law

The Court of Appeal erred in law when it held as follows:-

“In the final analysis I do not agree with Mr. Ajayi that Section 17 of the Act of 1967 must come into play before the appointment of the Respondents can be terminated”.

when:-

(i) The University of Lagos and its Council are both creatures of Statute.

(ii) The University of Lagos Act which in S.4, gave power to enter into contracts of employment also in S.17, prescribes limitations on the power which the University and its Council can exercise in respect of certain contractual relationships which might have been created in the exercise of its powers under S.4

(iii) The limitation imposed upon the powers of the University and its Council to remove certain categories of staff are procedural and binding upon the University and its Council.

(iv) Failure to comply with the procedure laid down by Statute for the removal of its employees raises an issue of vires and of Administrative Law, and not of contract, and renders anything done in disregard of Statutory provisions null and void.”

By paragraphs 2 and 3 of their Amended Statement of Claim, the Appellants pleaded that the Respondents (as an institution of Higher Education and the governing body of such institution respectively) are “regulated by the provisions of the University of Lagos Act 1967 as amended from time to time”. There was not (and perhaps there could not have been) any outright denial of paragraphs 2 and 3 of the Amended Statement of Claim by the Respondents. In paragraph 3 of their Amended Statement of Defence, the Respondents pleaded:-

“3. The Defendants admit that their powers and functions are regulated by statute as alleged in paragraphs 2 and 3 of the Statement of Claim but they will contend that in so far as no provisions are made by the University of Lagos Act 1967 the common law and doctrines of equity applicable to corporations aggregate will apply to the 1st defendant and the common law and doctrines of equity applicable to uncorporated bodies will apply to the second defendant”.

There is thus essentially no dispute between the parties that the Respondents must act within and not outside the Statute creating them, that is to say, Act No.3 of 1967. Whether in this case the University of Lagos Act 1967 as amended from time to time “made no provisions” for the removal of Senior Staff like the present appellants, to thus enable the court below invoke common law rules and doctrines of equity, will be seen when the relevant sections are considered.

The law regarding master and servant is not in doubt. There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach. Concentrating on termination, which is in issue in this appeal, one soon discovers that:-

Where an officer holds his office “at pleasure,” like was the case in Brown v. Dagenham Urban District Council (1929) 1 K.B. 737 at p.742 he can be dismissed at will in complete disregard of any purported contract whether verbal, or written or even under seal, because such contract will be incompatible with his status and therefore destitute of legal value. Thus Servants of the Crown, civil as well as military, except in special cases, where it is otherwise provided by law, hold their office only during the pleasure of the Crown and can be dismissed at any time in spite of a contract for a period of Service:- Dunn v. Reginam (1896)1 Q.B. 116. In fact the employing authority will lack the power, the vires to “enter into a contract” inconsistent with the wording of the Statute which gave it power in the public interest to remove the Servant at its pleasure:- Nicholson v. Whitstable Urban District Council (1925) 89 J. P. Newsp 480 at p.508. An officer holding his office at pleasure has also no right to be heard before he is removed because there need not be anything against him to warrant his removal. If there is nothing against him, no reason need be given for there is nothing to defend since he held his office durante bene placito:-See Reg v. Dartington School Governors (1844) 6 Q.B.682.
The second class of cases will cover the ordinary master and servant relationship governed by a written contract not subject to any statutory restrictions or limitations. Here the duty of the court will be to construe and apply the terms, conditions and provisions of the contract.
There may be cases where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which it can remove or dismiss him. In such contracts, if the servant is removed on grounds other than those specified in the contract or allowed by Statute, his removal will be held to be unjustified or ultra vires, null and void as the case may be:- see McChelland v. Northern Ireland General Health Service Board (1957) 1 W.L.R. 549.
When the employing authority wants to remove its servant on grounds permitted by Statute, then as Lord Campbell, C. J., observed in Exparte Ramshay (1852) 18 Q.B. 173 at p.190 “the principles of eternal justice” will dictate that the servant cannot be lawfully dismissed without first telling him what is alleged against him and hearing his defence or explanation. Eyen where the servant had, aliunde, personal knowledge of the offence or reason for his removal that was held to be no substitute for hearing the officer’s explanation:- Reg v. Smith (1844) 5 Q.B. 614.

In the case on appeal, there was no suggestion either in the pleadings, the evidence, the addresses of counselor the judgment of the trial court or even in that of the court below that the Appellants held their offices either at the pleasure of the Crown or the Federal Government or the Visitor or the University Council. I will hasten to say that it will be a contradiction in terms for a citizen of a Republic, such as Nigeria, to hold his office at the pleasure of the Crown. Which Crown We have no Crown here and public Servants in the established and pensionable cadre of the Federal Government Service are not regarded as employed at the pleasure of the Federal Government. This point was first made in Bashir Alade Shitta-Bey v. The Federal Public Service Commission (1981) 1 SC. 40 at pp. 57/58:-

“Indeed, it would appear from the lead judgment of the Court of Appeal that Public Servants in the established and pensionable cadre of the Federal Government Service are regarded as employed at the pleasure of the Federal Government”.

Idigbe, J.S.C. reacting to the above was quick to counter:-

“I shudder to think that this is so, but with great respect to their Lordships both in the Court of Appeal and in the High Court, I am of the view that this cannot be correct”.

The present Appellants do not hold their offices at the pleasure of anybody. They hold same under the provisions of the University of Lagos Act No. 3 of 1967. The main, and in fact the only issue in this appeal is:- Were the contracts of Service of the Appellants validly determined The trial court said No, the court below says yes. Which court is right

I have set out in full the complaint in Ground I. It is not necessary to do the same with regard to the other grounds because all six grounds filed, were argued together, and all dealt directly or indirectly with the powers, duties, and functions of the Respondents as spelt out in the University of Lagos Act No.3 of 1967. It will however be more rewarding to consider the “Issues” or “Questions For Determination” as formulated in the Appellants’ and Respondents’ Briefs respectively. This is not a trial court but an appellate court and therefore, any purposeful consideration of the issues for determination will have to be made against the background of the facts and circumstances of this case and especially the findings of facts of the learned trial judge who saw, heard and believed. There has been no appeal on the facts and the findings of fact of the trial court thus remain unassailed. Those findings include:-

“1. That the Appellants were Professors in the University of Lagos at the time of the setting up of the Visitation Panel into the affairs of the University ..

That the Appellants who are holders of public office with legal status in the established pensionable cadre….are entitled to remain in office until properly removed.
That the Report of the Visitation Panel and the Visitors’ Views on the said Report were submitted to and were fully considered by the University Council, the 2nd Respondent on the 16th, 29th and 30th December, 1980.
That the Recommendations of the Visitation Panel contained in paragraph 7.4, 7.5, 7.6 and 7.8 of Exhibit “P6A” levelled certain acts against the Plaintiffs. The said acts, in my view, amount to misconduct within the meaning ascribed to ‘misconduct’ quoted above and therefore cognisable as such under Section 17 of the University of Lagos Act 1967 and Clause 7 of the Memorandum of Appointment of each Plaintiff.
That at its meeting of 30th December, 1980, after considering the Visitation Panel’s Report and the Visitor’s views thereon, it was decided:-

“That the Council should terminate the appointments of the Appellants with immediate effect. Council should also direct that the Senior Deputy Registrar should communicate this decision to those affected and the Bursar should pay each of them six months’ salary in lieu of notice in addition to their other financial entitlements”.

That on the same 30th December 1980 a letter of termination of his appointment was forwarded to each Appellant with a cheque for a sum representing six months’ salary in lieu of notice.
That each Appellant rejected the purported termination of his appointment regarding same as ultra vires, null and void and consequently returned the cheque representing his six months’ salary in lieu of notice”.

There was no evidence, let alone a finding, that the Council of the University of Lagos before removing the Appellants on 30/12/80 per Exs. P4, P16 and P19 communicated to any of them the grounds of misconduct alleged against him to enable each Appellant reply to such grounds as required by Clause 7 of the Agreement or Section 17(1) of the Lagos, University Act 1967.

Standing thus on the solid foundation of the findings of fact of the trial court, one may now ask the one vital question which holds the key to the resolution of many of the various Issues for Determination. That question is:- What was the relationship between the Respondents and the Appellants

Was it the ordinary simple common law relationship of master and servant Was it a relationship of master and servant based wholly and solely on a written contract OR was it a relationship with “statutory flavour” relationship that invested the Appellants with tenure and “legal status” I will now look at how the court of first instance and the court below answered this vital question. The court of first instance at page 203 of record of Proceedings held:

I am satisfied on the evidence before me that each of the Plaintiffs, as a Professor in the University of Lagos, an educational institution established by the Government of the Federation is a holder of public office in the Public Service of the Federation and that his appointment and service are regulated by Statute, namely the University of Lagos Act, 1967 and the Regulations made thereunder. Therefore notwithstanding the provisions of Clause 6 of his memorandum of appointment the provision of the said Act and Regulations confer on him a legal Status beyond that of mere or ordinary master and servant relationship, that the termination of his appointment would not be cognisable under the said Clause 6 or the common law on the facts and all the circumstances leading to the said termination of appointment….” (Italics mine).

Nasir, P. in his lead judgment in the Court of Appeal conceded that the case of Shitta-Bey v. The Federal Civil Service Commission (1981) 1 S.C. 40 “is illuminating in that it distinguishes the difference between an ordinary relationship of master and servant with the relationship of master and servant in the con of the Civil Service which is governed by Statutory provisions”. After considering other case’s namely:

Chapman y. Honig (1963) 2 All. E.R. 513
Ridge v. Baldwin & Ors (1964) A.C. 40
Vine v. National Dock Labour Board (1957)A.C. 488
National Bank of Nigeria v. Adedeji (FCNU26/83)delivered 30/5/83
Falomo v. Lagos State P.S.C. (1977) 5 S.C. 61 the learned President of the Court of Appeal held:- at page 18 of the lead judgment:-

“In my opinion any public body charged with the power to employ staff must act within the statute creating it and within all other statutory provisions governing its procedure for employment, dismissal or termination of its staff under the contract of service. This procedure may be in respect of dismissal of the staff or termination of the staff.

I also bear in mind that a statutory body with public function to perform ought to be at liberty to exercise its functions without undue restriction through statutory interpretation save in such cases where the statutory provisions are open to one clear interpretation and in such a case the words in the provisions must be given their ordinary meaning and applied accordingly. Where a statutory provision seems to be in conflict with the provisions of the common law the statutory provision must prevail but only to such extent as is manifestly clear. The principles of the common law which have not been specifically abrogated or superceded shall be allowed to apply.”

(Italics mine and is for emphasis).

The learned President has not yet answered the question whether the relationship between the Respondents and Appellants was the simple ordinary common law relationship of master and servant or “a relationship of master and servant in the con of the University of Lagos Service which is governed by Statutory provisions”. He came near an answer at pages 26/27 of the lead judgment where he held:

“I am in agreement with learned counsel for both parties that the Respondents fall within the definition under section 277 of the 1979 Constitution of officers in the “public Service of the Federation”. We are not concerned as such with the status of the Respondents as “public officers”. We are concerned with the procedure to be followed to bring them into the Public Service and the procedure to be followed to take them out of it. Service in the University is not identical with Service in the Civil Service of the Federation. Each is governed by its own conditions of service including, as the basic beginning, the contract of Service between the employer and the employee. It is this contract of Service and the power to enter into the said contract and the conditions of such contract that are in issue. The statutory provisions relevant to such contracts must be complied with. (Italics mine).

I cannot agree more with the portion of the lead judgment in Italics above.

The questions that now arise are:-

Was there a contract of Service between the University of Lagos and each of the Appellants

The answer is a positive, unhesitating, capital, “Yes”.

Were there any terms and conditions of these contracts

The answer is again “yes”. Each Appellant was offered his appointment subject to the Memorandum As To The Terms Of Appointment which he signed. These were all tendered in evidence as Exs. P1, P12 and P18. In fact the Respondents purported to remove each Appellant under Clause 6 of this said Memorandum of Appointment.

Were there any Statutory provisions relevant to the contract between the University and the Appellants

The answer is again yes. These provisions are contained in Section 17 of Act No.3 of 1967. And this is where the issue of Status comes in.

With the greatest respect, I do not agree with the learned President of the Court below that “we are not concerned as such with the status of the Respondents”. The status of each party to these contracts is of paramount importance. The learned President in the court below considered the case of Shitta-Bey supra and regarded the distinction it drew between the ordinary relationship of master and servant with the relationship of master and servant in the con of the Civil Service which is governed by statutory provisions as “illuminating”. He (the President) even went as far as to quote with approval the observation of Idigbe, J.S.C. at p.56 of the Report as follows:-

“The Civil Service Rules of the Federal Public Service govern condition of Service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974 pursuant to the provisions of Section 160(1) of the 1963 Constitution, Act No. 20 of 1963. These Rules therefore, in my view, have constitutional force and they invest the Public Servant over whom they prevail, a legal status; a status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship”.

After quoting the above passage, the learned President of the Court below added his own comment al p.15 of the lead judgment:-“Thus where there were clear statutory provisions covering the relationship of master and servant the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the said statutory provisions.” (Italics mine)

That to my mind is what Idigbe, J.S.C. meant when in Shitta-Bey’s case supra he said that the Rules or the Statutory provisions concerning the termination of the contract have “Constitutional force” and that the servant over whom they apply is thus invested with “a legal status” which status guarantees that he cannot be removed except as provided by those statutory provisions. From another angle the status of the Respondents themselves deserves serious attention. The University of Lagos and University Council are both crealures of Statute and cannot act except within and under the powers conferred on them by the relevant Statute, here the University of Lagos Act No.3 of 1967.

Before leaving the issue of the “legal status” of the Respondents and the Appellants, it may be convenient at this stage to trace the further similarity between the case now on appeal and Shitta-Bey’s case supra – seeing that the learned trial judge relied heavily on Shitta-Bey in making the declarations sought and the consequential reliefs claimed. By Section 69 (1)(b) of the Constitution of the Federation, Act No.20 of 1963:-

“Parliament shall have power to make laws for the peace, order and good government of the Federal territory with respect to any matter, whether or not it is included in the Legislative Lists”. Item 17 of the Exclusive Legislative Lists in part 1ofthe Schedule to the 1963 Constitution (page A167) deals with Higher Educational Institutions and mentioned the Universily of Lagos by name as one of those institutions Parliament may make laws for. The University of Lagos Act No.3 of 1967 was thereafter made pursuant to Section 69(1)(b) of the 1963 Constitution. Section 4 of Act No.3 of 1967 gave the University of Lagos and the University Council – the Respondents – the power, the vires, to engage academic staff. Acting under Section 4 of the Act creating them, the Respondents issued Regulations Governing Service In The University of Lagos: Senior Staff, tendered as Ex. P3. The paragraph of EX.P3 relevant to this appeal is paragraph 15 Subnomen Termination by the University. The Appellants also signed Memoranda (Ex.P1, P18 and Ex.P12A) issued to them by the Respondents pursuant to the powers conferred on the University under Section 4 of Act No.3 of 1967 to engage Senior Staff. Clauses 6 and 7 of each Memorandum as to the terms of appointment gave the conditions under which the Respondents can lawfully terminate the appointments of the Appellants.

Finally and as if to seal and set beyond doubt, the provisions for termination of appointment of Senior Staff contained in paragraph 15 of the Regulations and Clauses 6 and 7 of the Memoranda of terms of Appointment, Section 17of the Lagos University Act No.3 of 1967 reiterated the terms and conditions for termination of appointment of Senior Staff contained in the Regulations and Memoranda of Appointment and thus elevated them to the status of statutory provisions

There is no doubt that in this case, the Regulations Ex.P3, the Memoranda of Appointments (Exs. P1, P18 and P12A) and Section 17 of the University of Lagos Act No. 3 of 1967 all derived from Section 69(1)(b) of the 1963 Constitution, Act No. 20 of 1963. That being so they “all have constitutional force and they invest, the Appellants over whom they prevail a legal status which make their relationship with the Respondents although one of master and servant certainly beyond the ordinary or mere master and servant relationship” – Shitta-Bey supra at p.56. The relationship of the Respondents and the Appellants was thus a relationship of master and servant but with a big difference. The difference being that the Respondents can legally terminate the Appellants’ contracts of Service only by complying strictly with

(a) Paragraph 15 of The Regulations Governing Service in University.

(b) Clauses 6 and 7 of the memoranda as to the terms of appointment; and

This is one way of looking at the facts and circumstances of this case. The points taken by the Appellants in Ground 3 of their Grounds of Appeal were therefore well taken.

But from another angle, and as a necessary stepping stone to the answer to the first ground of Appeal (which is the crux of the whole appeal, because everything in this case revolves around the University of Lagos Act generally and particularly its Sections 4 and 17), the University of Lagos and the University Council as public bodies entrusted by the Constitution and the University of Lagos Act No.3 of 1967 with certain powers and duties cannot even enter into any contract or take any action, like the termination of the appointments of the Appellants, if such action is incompatible with the due exercise of their powers or the due discharge of their duties under Sections 4 and 17of the Act: see Lord Birkenhead in Birkdale District Electric Supply Co. Ltd. v. Southport Corporation (1926)A.C. 355 at p.365: Nicholson v. Whitstable Urban District Council (1925) 89 J. P. Newsp 480 at p.508: Brown v. Dagenham Urban District Council (1929) 1 K.B.D. 737 at p.745. The point being made here is that both the Regulations governing Service in the University especially its Paragraph 15 dealing with Termination by the University and each Memorandum as to the Terms of Appointment of each Appellant especially Clauses 6 and 7 thereof must be consistent with the powers expressly given to the University and the University Council by Section 17 of the Act No.3 of 1967 otherwise those Regulations and the Memoranda will be inconsistent with the source of their power and therefore, null and void. This case must therefore, of necessity, revolve around Section 17 of the Act and cannot be determined without reference to S.17 which is the only section that can give life and validity to the Regulations and the Agreements EXS.P1, P15 and P12A. It is therefore a very material error in law to decide the termination of the appointments of the Appellants without reference to Section 17 of the Act No.3 of 1967. To this extent, Ground 1 succeeds.

At this stage, it may be rather convenient to tackle the first “Question For Determination” as formulated in the Respondents’ Brief namely:-

“1. Whether the provisions contained in the Agreement between the University and each Appellant whereby the employment of each Appellant is terminable by notice is inconsistent with or superseded by the provisions of Section 17 of the University of Lagos Act”

“The Memorandum As To The Terms of Appointment” (which formed the contract Document in this case) of each of the Appellants is in exactly identical terms. The relevant Clauses of each Memorandum are Clauses 6 and 7.

These Clauses provide:-

“6. The Appointee shall not terminate his/her appointment other than on the 30th September, in any year, after having given to the Council six months’ notice in writing of his/her intention to do so, unless the consent of the Council be otherwise obtained. Subject to the provisions of paragraph 7 below the Council shall not terminate the appointment of the Appointee without having given six months’ notice in writing of its intention to do so, or having tendered payment of six months’ salary in lieu of notice. In the case of notice already given the Council may tender payment of the amount of salary applicable to the period of notice unexpired and, upon its doing so, the appointment of the Appointee shall determine immediately (Italics mine).

Should the Appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or willful refusal to fulfil his duties, or become incapable, by reason of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for the Council to continue to employ him/her, then his appointment shall be at the discretion of the Council. Before any removal of the Appointee is made, the Appointee shall have opportunity of replying to the grounds alleged against him.”

It is to be observed from a careful reading of each Memorandum of Appointment (Exs. P1, P12A and P18) of the Appellants:-

That the University Council’s power to terminate the appointments of the Appellants does not, strictly speaking, derive from the common law as such, but rather from the terms, conditions and stipulations of a written contract binding on both parties.
That Clause 6 of each Memorandum of Appointment does not give to the Council a blank cheque to terminate the appointments of the Appellants by merely giving them six months’ notice or six months’ salary in lieu thereof. No. The Council’s power to terminate appointments under Clause 6 is not unlimited, or unqualified. It is rather expressly stated to be “subject to the provisions of paragraph 7 below”
The Visitation Panel was obviously set up to inquire into the crisis in the university and the part played by the Appellants and others in that crisis. The Visitation Panel’s finding that each Appellant “has rendered himself unfit for any position of leadership or responsibility in the University” has been held by the trial court to be a finding of misconduct. Misconduct where -In each Appellant’s private family life No. It must be misconduct “in relation to his duties to the University” as contained in Clause 7 of the Agreement or Contract Document.
Now Clause.7 of each Memorandum of Appointment is substantially and strikingly similar to Section 17(1) of the University of Lagos Act No.3 of 1967, if not completely identical with it in concept and content. Both enjoin that if the removal is on the ground of misconduct, the Appointee (here each Appellant) to use the language of Clause 7 “shall have an opportunity of replying to the grounds alleged against him”. Section 17(1)(a) and (b) of the 1967 Act merely defined where the appointee shall appear “to be heard” – that is – before which forum he “shall have the opportunity of replying to the grounds alleged against him”.

There is therefore an intimate and inextricable link between misconduct in the Appointee; the giving of notice or payment of salary in lieu thereof; and giving the Appointee an opportunity of replying to any alleged ground of misconduct thus satisfying what Lord Campbell, C. J. in Ex Parte Ramshay supra described as “the principle of eternal justice”. My answer to Question No.1 above is that there is no inconsistency between Clause 7 of the Agreement, (between the University and each Appellant), and Section 17(1) of the University of Lagos Act No.3 of 1967. One view of the matter is that Section 17(1) of the 1967 Act merely expressed in statutory form and gave statutory force, definition and elaboration to Clause 7 of the Agreement. The underlying theme pervading both Clause 7 of the Agreement and Section 17(1) of the Act is fair hearing which was also guaranteed the Appellants by Section 22(1) of the 1963 Constitution.

With regard to Clause 6 of the Agreement, the University cannot in the face of the findings of fact of the trial court that the Appellants were removed on the ground of misconduct, terminate their appointments by merely paying them six months’ salary in lieu of notice. I will to that extent say that Clause 6 of the Agreement has been in this case, superseded by Clause 7 of the Agreement and Section 17(1) of the Act. The giving of six months’ notice or payment of six months’ salary in lieu of notice, as contained in Clause 6 of the Agreement, each does not apply to the facts and surrounding circumstances of this case since the University’s power to remove the Appellants by paying them six month’s salary in lieu of notice under Clause 6 was subject to Clause 7, which clearly and explicitly stipulated:

“7 Should the Appointee be found guilty of misconduct….then the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the Appointee is made, the Appointee shall have an opportunity of replying to the grounds alleged against him.”

In this case, there is no evidence that the Visitation Panel’s findings of misconduct were communicated to the Appellants and that they had an opportunity of replying to those allegations before they were hastily removed. In their haste, the Respondents forgot Clause 7 of their Agreements with Appellants and Section 17(1) of Act No.3 of 1967. These were the point urged by the Appellants in Ground 2 of their Grounds of Appeal which therefore succeeds.

“Question For Determination” No.2 is as follows:-

“2. If the answer to Question 1 is in the negative, whether the provision contained in the Agreement aforesaid enables the University to terminate the employment of each Appellant”.

My answer to the above question No.2 will be:- If there was no finding that the Appointee is being removed on the ground of misconduct, then the employment of the Appointee is terminable by six months’ notice or six months’ salary in lieu of notice according to Clause 6 of the Agreement. But where as in this case, there was an allegation “that each and everyone of the officers mentioned above (the Appellants were among the officers mentioned above) has rendered himself unfit for any position of leadership or responsibility in the University of Lagos” and a recommendation “that each be considered unfit for so long as the Visitor may instruct” followed by a finding by the trial Court “that the above recommendation of the Visitation Panel against the Plaintiffs in my view amounts to misconduct cognisable us such under Section 17 of the University of Lagos Act 1967 and Clause 7 of the Memorandum of Appointment of each Plaintiff’ then my answer to Question No.2 will be that “the provision contained in that Agreement aforesaid enables the University to terminate the employment of ach Appellant” validly if, and only if, each Appellant has had an opportunity of replying to the growths alleged against him as stipulated in Clause 7 of their contract.

In this case, what was most relevant and what should have been more vigorously and effectively emphasized was the construction of the contract Documents -the various Memoranda of Appointment signed by the Appellant and binding on the parties especially Clause 6 and Clause 7 vis-a-vis the facts and findings of fact in the case. The way this appeal was argued reminds me of the incident which made a lasting impact all Booker T. Washington, A Captain drifting far away at sea did not know that he had entered the mouth of the St. Lawrence River (which was fresh water). He sent a distress signal – “Water, Water, Water” – The reply came – “Cast down your bucket where you are”. A lot of time and energy should have been saved if both sides cast down their buckets where they were, that is to say paid more attention to the Contract Documents especially Clause 7 and its intimate connection with Section 17(1) of Act No. 3 of 1967 than the labyrinthine maze of case law cited to us – cases decided on other facts and interpretating other statutes.

A lot of dust was raised over the issue whether one contracting party was not free to give notice or pay salary in lieu thereof and terminate a contract of employment. Chief Williams. S.A.N. for the Respondents relied heavily on the decision in Gunton v. London Borough of Richmond upon Thames (1980) 1 All. E.R. 8 and finally submitted that nothing prevented the employers (here the Respondents) from exercising their common law right to terminate the contract by giving notice or paying salary in lieu of notice. Mr. Ajayi, S.A.N. for the Appellants countered by submitting that in this case, it was a question of vires and that the University lacked the necessary vires to terminate the Appellants’ contracts by merely paying them six months’ salary in lieu of notice. Properly considered, the question whether one contracting party can terminate a contract by giving notice or paying salary in lieu of notice is a non-issue this case. The issue is or should be – Once there was a finding that the Appellants were being removed on the grounds of misconduct, how were they to be removed What was the proper procedure – Should it have been

(a) under the common law or

(b) under their written contracts or

A subsidiary question may arise – Has the University any option, any choice in the matter First and foremost, was there a finding that the Appellants were removed for misconduct The learned trial judge found that the Visitation Panel’s strictures against the Appellants amounted to allegations of misconduct cognisable under Clause 7 of their contract documents and Section 17(1) of the University of Lagos Act No.3 of 1967. This finding was not appealed against and therefore still subsists. Section 17(1) of the 1967 Act stipulates:

“17(1) If it appears to the Council that there are reasons for believing … that a member of the academic … staff of the University should be removed from office or employment on the ground of misconduct … the Council shall -(a) give notice of those reasons to the person in question;

(b) make arrangements –

(i) …………………..

(ii) …………………..

(c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instruction in writing signed on the directions of the council.

At page 481 of the Records, the University Council considered the Visitation Report and the comments of the Visitor and in the end decided to terminate the appointments of the Appellants and wrote them letters of termination of appointment identical to EX.P16 at p.489. The Chairman made it clear that the meeting was called “to discuss any development on the leadership crisis in the University of Lagos”. It was as a result of this leadership crisis and following discussions on it that Appellants were removed. From the sequence of events – the meetings of the University Council on 16/12/80, 29/12/80 and 30/12/80, each meeting dealing with the Visitation Panel’s Report and the Visitor’s views thereon and the removal of the Appellants on the same 30/12/80 with immediate effect – can anyone be in doubt that the Appellants’ removal was a logical and necessary consequence of the misconduct alleged in the Visitation Panel’s Report It is obvious that they were removed because it appeared to the Council that “they were unfit for any position of leadership or responsibility in the University of Lagos” (which has been held by the trial court to amount to misconduct). Again a conduct that created a leadership crisis cannot be proper conduct. It has to be misconduct.

Given the background of the removal of the Appellants on the ground of misconduct, could the Respondents have removed the Appellants under the common law rules regulating the ordinary master and servant relationship The answer is No. It is here that the concept of vires comes in. If the powers of a Corporation are given or acquired at common law or by custom or by charter, the corporation is a person at common law and may do anything which an ordinary person can do, see: Wenlock (Baroness) v. River Dee Co. (1885) 10 App. Cas. 354: see also British South Africa Co. v. De Beers Consolidated Mines (1910) 1 Ch. 354. On the other hand, a Corporation or Company which is created by or under a Statute cannot do anything at all, unless authorised expressly or impliedly by the Statute or instrument defining its powers. It simply has not got the vires or the powers or authority to act outside the Statute. If it so acts, the act will be held to be ultra vires and declared null and void. The President of the Court of Appeal adverted to this when he observed –

“In my opinion any public body charged with the power to employ staff must act within the Statute creating it and within other statutory provisions governing its procedure for employment, dismissal or termination of its staff under the contract of service” (see p.18 of the lead judgment).

The Court below also correctly interpreted the ratio decidendi in the case of Shitta-Bey v. The Federal Civil Service Commission (1981) 1 S.C.40.

“The case” the court continued “however is illuminating in that it distinguishes the difference between an ordinary relationship of master and servant with the relationship of master and servant in the con of the Civil Service which is governed by statutory provisions”.

Can it here be seriously contended that the service of the Appellants in the University of Lagos, each governed by a Memorandum of Appointment (Exs.P1, P18 and Ex.P12A); by Regulations Governing Service in the University of Lagos; and by the Statutory provisions of the University of Lagos Act No.3 of 1967 is an ordinary relationship of master and servant Definitely not. If anything, that relationship has all the trappings of a contract with “statutory flavour”. In any event, the learned trial judge held that “the Appellants were holders of public office with legal status in the established pensionable cadre of the University of Lagos and are entitled to remain in office until they attain the retiring age or until they are properly removed”. On the authority of Ridge v. Baldwin supra which was considered by the court below, I hold mutatis mutandis, as Lord Reid held at p.79 and p.80 that the power to dismiss or remove or terminate the appointments of the Appellants either under Clause 7 of their Agreements or under Section 17(1) of the Act cannot be exercised until the University Council have informed the Appellants of the grounds on which they propose to proceed and have given them a proper opportunity to present their case in defence. Dismissing or terminating the contract of a University Professor who has not been convicted of any criminal offence is not a thing to be done lightly. It seems to me very necessary that there should be such inquiry as the Regulations and S.17(1) of the Act require and such right to be heard in defence as “the principles of eternal justice” prescribe. The Respondents in this case the University of Lagos and the University Council- did not exist at common law, or by any common law usage, or even by any common law fiction. The Respondents were created by Statute – the University of Lagos Act No.3 of 1967. Therefore every act of the Respondents like engagement or removal of staff must be done within the Statute – Act No.3 of 1967 to render such acts intra vires and right. Even at the risk of repetition, I will strongly emphasize that the relationship that existed between the University and the Appellant was not the simple common law relationship of master and servant, No. It was rather a relationship created by, conditioned by, and subject to the express provisions of the University of Lagos Act, investing the Respondents with powers (as they relate to this appeal) to appoint or remove staff. Thus Section 4 of the Act gave the Respondents the power to enter into contracts of service. Acting under that section, the Appellants were appointed Professors with their terms and conditions of service spelt out in their various Service Agreements, each containing Clause 6 and Clause 7 dealing with Termination of Appointment. In fact the first ratio decidendi in Gunton’s case supra that:-

“Although the Council had power by virtue of the express term in the Plaintiffs letter of appointment to dismiss the Plaintiff simply on a month’s notice on grounds other than disciplinary grounds once the Council has decided to dismiss the Plaintiff on disciplinary grounds, it was required to carry out all the steps of the appeal procedure that applied, and as it had admittedly failed to do so, the Council had wrongfully dismissed the Plaintiff on 13th January 1976”,

perfectly fits the facts and circumstances of the present appeal. It also answers Question No.3 in the “Questions For Determination” in Chief Williams’ Brief for the Respondents, except that the High Court was not dealing with motive or motivation. In Taiwo v. Kingsway Stores Ltd. (1950) 19 N.L.R. 122 at p.123, De Comarmond S.P.J. held that the motive which impelled an employer to terminate lawfully a contract of employment was not relevant. I am in complete agreement with this proposition. But it does not apply to the facts and circumstances of this case. Firstly the Appellants’ contracts were not terminated lawfully by observing the statutory provisions of Section 17(1) of Act No,3 of 1967 or even by observing the stipulations of Clause 7 of the Agreements. Secondly the stage of motive and motivation had long been passed when there was a finding of fact that the removal of the Appellant was on the solid fact of misconduct not that “it was motivated by misconduct”. The High Court found that the Visitation Panel’s Report on which the removal of the Appellants was based, amounted to allegations of misconduct.

With the greatest respect to the very learned Justices of the Court of Appeal, I do not agree that the Respondents had an option in this matter. Once the Council acted on the Visitation Panel’s Report which alleged serious misconduct against the Appellants, they lost the right to proceed under Clause 6 of the Agreement and terminate the Appellants’ services by notice and were forced to proceed under Clause 7 of the Service Agreement and Section 17(1) of the Act of 1967 and set in motion the processes for removal spelt out in Clause 7 of the Agreement and Section 17(1) of the Act. It is the difference between a Rule and a Principle. A Rule determines the outcome of a dispute in one particular way, while a Principle merely inclines the outcome one way or the other. Clause 7 of the Agreement and Section 17(1) of the Act each operates in the same way as a Rule. A Rule makes certain legal results depend upon the establishment of certain factual situations stipulated in the antecedent part of the Rule. This means that once the factual situation is proved to exist, the Rule will apply in its entirety. Rules therefore apply in an all or nothing dimension. Either the case falls within the ambit of the antecedent portion of the rule in which case it must be dealt with as the rule dictates or it does not, in which case it is not affected by the Rule.

Once there was a finding of misconduct and a conclusion that the removal was a consequence of that misconduct, it was imperative and incumbent on the Respondents to proceed strictly according to the procedure for removal set forth in Clause 7 of the Agreement and Section 17(1) of the Act.

The Court of Appeal tried to draw a distinction between “serious accusation” and “every minor shortcomings”. It agreed that in cases of serious accusation. Section 17(1) of the Act of 1967 will apply but not otherwise. The court below did not however classify “unfitness to hold any position of leadership or responsibility in the University of Lagos”. Was that “serious accusation” or “very minor shortcomings” We are not told. The Court of Appeal also referred to “the wisdom of this particular provision” – of dismissing for serious accusation and giving notice for minor shortcomings. It was obliquely suggested by Nasir, P. in the court below that the Respondents were being generous by paying the Appellants six months’ salary in lieu of notice and allowing them their other entitlements. But that is not the issue. The issue is – Were the Respondents acting ultra vires or intra vires the Contract Documents and the 1967 Act The Respondents have to be just before they are generous. They have to be just by observing the procedure set out in Clause 7 of the Agreement and Section 17(1) of the Act, and act intra vires before their unsolicited generosity can have legal backing. A man’s good name is worth much more than six months’ salary. In the hey-day of forensic eloquence, Charles Phillips, in his speech for the plaintiff in O’Mullan v. Mc’Korkill (an action for defamation) asked:-

“Who shall estimate the cost of priceless reputation – that impress which gives this human dross its currency, without which we stand despised, debased, depreciated Who shall repair it injured Who can redeem it lost”

The Appellants should therefore, first and foremost, be allowed to clear and reclaim their good names as provided for in Clause 7 of the Agreement and Section 17(1) of the Act. Well did the Bard of Avon observe in Othello:

“Good name in man or woman ………………………….

Is the immediate jewel of their souls: who steals my purse steals trash……….But he who filches from me my good name Robs me of that which not enriches him And makes me poor indeed”.

Under Clause 7 of the Agreement, EX.P1 (p.285 Lines 18-29) even if each Appellant was found guilty of misconduct, the Respondents could still have given them notice. The only difference appears to be that “then the period of notice necessary to terminate his appointment shall be at the discretion of the Council”. From this, it follows that under Clause 7 of EX.P1, Ex.P12A and Ex.P15, salary in lieu of notice can still be paid. But the important thing is that “the appointee has had an opportunity of replying to the grounds alleged against him” before his removal which expression includes the termination of his appointment. It is here significant to note that Section 17(1) of the University of Lagos Act 1967 never used the word “dismissal”. In Clause 7 of EX.P1 and in Section 17(1) of the Act, the word used is “removal”. I will therefore, again with the greatest respect, disagree with the learned President of the Court of Appeal that “Section 17 of the Act of 1967 is intended to come into operation only when there is serious accusation against an officer as will, in the event of its being proved, justify dismissal with loss of benefits”. The words of Section 17(1) of the 1967 Act cannot, without undue violence, bear that meaning or interpretation. Nnaemeka-Agu, J.C.A., in his concurring judgment observed:-

“But there is nothing in Section 17 of the Act prohibiting parties to a contract of service from contracting out of the provisions of Section 17(1)(a)-(c)”.

Again, with the greatest respect, I disagree. The University of Lagos is a creature of Statute and it must act within the four walls of the Statute creating it. Any contract the University makes contrary to the letter or spirit (or both) of Section 17(1) will not, as I mentioned earlier on, be intra vires, see Baroness Wenlock v. Dee River Company (supra). It will be ultra vires the powers of the Council and will be declared null and void and of no legal effect. The Respondents have no power to treat the Appellants more favourably or less favourably than is prescribed by Clause 7 of the Agreement and S.17(1) of the Act. Any such treatment that adds to or substracts from S.17(1) will be destitute of legal value. The learned President of the Court of Appeal reiterated this view and accepted same as the law, when he observed at p.15 of his lead judgment:-

“In my opinion any public body charged with the power to employ staff must act within the Statute creating it and within all other statutory provisions governing its procedure for employment, dismissal or termination of its staff under the contract of Service”.

But unfortunately and again with utmost respect, he appeared to have changed boat in mid-stream when he finally concluded at the same p.18:”

The principles of the common law which have not been specifically abrogated or superseded shall be allowed to apply”.

Although there was no appeal against the learned trial judge’s finding of fact that the Appellants were removed on the grounds of misconduct, the learned President in the court below took up that issue rather gratuitously. Dealing with Section 17(1) of the University of Lagos Act No.3 of 1967, the learned President observed:-

I must admit that the above construction put on Section 17(1) of the University of Lagos Act 1967 looks rather attractive. My only worry is that that construction is neither borne out by the facts of this case nor by the record of proceedings –

The facts are that the Council was in possession of the Visitation Report which at p.395 listed seven Professors including the 1st and 2nd Appellants as having “been very prominent in the whole campaign to remove the Vice-Chancellor”.
The same Visitation Report at p.399 seriously indicted the Deputy Vice-Chancellor, Professor Durojaiye the 3rd Appellant, not only with being “closely identified with the demand for the removal of the Vice-Chancellor” but also with “handling appointments to professorial posts in a most reckless and irregular manner when he acted for the Vice-Chancellor”. The Report continued – “This recklessness becomes more reprehensible in view of the fact that one of the appointments was that of Dr. (Mrs.) Durojaiye, his own wife”. It further continued – “By refusing to cooperate with Professor Adadevoh when he returned to the University on 26th August, 1980, Professor Durojaiye was in wilful dereliction of his statutory duties. He joined others to prevent members of Senate from attending the meeting of Senate properly summoned for 5th November, 1980, thereby disrupting the orderly progress of the University.”
With regard to Professor Olaniyan (the 1st Appellant) the Report further stated:-

“We find that Professor Olaniyan was the principal actor in the agitation against Professor Adadevoh. We do not accept that he was acting from the motive he would want the world to believe … He believes that no person can succeed as Vice Chancellor of the University of Lagos without his support.

… As one of the most Senior Professors in the University, Professor Olaniyan’s role in this matter is a bad example to the junior members of the University academic staff. We recommend that appropriate disciplinary measures be taken against him.

That Report concluded by emphasising “that each and everyone of the officers mentioned above (including all three Appellants) has rendered himself unfit for any position of leadership or responsibility in the University of Lagos”.

There was thus a report of various acts of misconduct and a recommendation that disciplinary measures be taken. This is Stage 1.

Stage 2 opened with the discussion of the Visitation Report and the Visitor’s Directives:-

(i) Dr. Amuda Aluko in his contribution to the debate emphasised that “there are rules and regulations to be followed before the Council can terminate the appointment of an individual otherwise he can take us to court for wrongful termination” – (see p. 418 of the record).

(ii) Dr. Abass wondered whether “it would be responsible of this Council to go ahead and do things that are unlawful When someone is asked to leave the University against his will, that amounts to removal for which there are laid down procedure.”

(iii) Professor Ogunye commented that “there is a provision in our Act for the removal of staff’ and then suggested that “the proper thing to do is to go by the procedure laid down in the Act”.

(iv) The Provost of the College of Medicine referred to the danger this type of Directive posed on the Security of Tenure of the academic staff and added in disgust – “it looks as if more and more as the years go by the security of our appointments has been removed. Many of us saw in S.17 ample protection for our tenure of Service”. (Here there was a direct mention of S.17 of the Act).

(v) Professor Oladapo saw the problems facing the Council. He then submitted that “a member of staff whose appointment has been confirmed holds that appointment until retiring age. Looking at

the regulations, it is not the question of notice alone but that of entitlements” .

I will only add that one such entitlement is the right to defend oneself against any allegation of misconduct as provided in Clause 7 of the Agreement and S.17(1) of the Act. In spite of all these timely warnings, the Council was stampeded into removing the Appellants against both the spirit and the letter of Clause 7 of their Agreements and Section 17(1) of the 1967 Act.

The question now is – why were they removed The Council was, to quote the words of the learned President, “in possession of an information of misconduct against the Appellants”. Did it decide “that it had no intention of removing them on the alleged grounds of misconduct” On what grounds were they removed The court of first instance looked at the facts and drew the only logical conclusion. The court below merely speculated. From the sequence of events and the consequent removal of the Appellants, the only logical and natural reason for their removal is the allegation of misconduct made against them by the Visitation Panel. In fact several members said so during the Council meeting of 30/12/80. And once one arrives at that conclusion – as the trial court did – one should leave speculation behind and face the facts squarely. The removal of the Appellants was based on the allegations of misconduct. Section 17(1) of the Act automatically became operative. It is not for the Council to decide that it will frustrate S.17(1) by paying salary in lieu of notice or by disguising the reasons for the removal or even giving no reasons at all. Section 17(1) of the Act is there to ensure that the Respondents do not deprive the Appellants of their right to defend themselves – the right of “replying to the grounds alleged against them”. Section 17(1) of the Act becomes operative “if it appears to the Council that there are reasons for believing that the Appellants should be removed on the ground of misconduct”. The Visitation Report even recommended disciplinary measures. It should appear to any responsible Council that the removal of the Appellants against their will in the surrounding circumstances of this sad case was a disciplinary measure requiring the application of the “principles of eternal justice” induding the right to defend themselves as provided by S.17(1) of the Lagos University Act and Clause 7 of the Agreement. As Jessel M.R. observed in Fisher v. Keane (1878) 11 Ch. D. 353:- “They ought not, as I understand it, according to the ordinary rules by which justice should be administered by Committees of Clubs or by any other body of persons who decide upon the conduct of others, to blast a man’s reputation for ever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct”. In my humble view, it will take a very sanguine prospective University Council to offer appointments to Professors alleged to be “unfit to hold any position of leadership or responsibility”.

There must be some distinction between the bare appearance and the decision to act on such appearance. If the latter were what was meant, section 17(1) of the Act would have read:- “If the Council decides to remove anyone on the ground of misconduct etc”. That happens not to be the wording of S.17(1) of Act No.3 of 1967.

Another fault with the passage of the learned President quoted above is that it tends to equate dismissal with loss of benefit. That is not correct. What constitutes dismissal in any particular case will ever remain a question of fact. In law however dismissal means such act or acts on the part of the master as amount to a repudiation by him of the essential obligations imposed on the servant by the contract. Thus a man may dismiss his servant if he refuses by word or conduct to allow the servant to fulfil his contract of employment: see Re Rubel Bronze etc, and Vos (1918) 1 K.B. 315. Loss of benefit is not at the root of dismissal but repudiation of the servant’s obligations under the contract is. Once there is that repudiation by the master then there is a dismissal or termination or removal – it does not matter which expression is used, the effect is the same.

In his 4th Question For Determination, Chief Williams posed the following question:-

“4 Whether this is the type of case in which the Court would decree specific performance of the contract or order the reinstatement of the employee”

I cannot pretend that the answer to the above question is simple and straightforward. In the court of first instance, the Appellants as Plaintiffs claimed three declarations and two injunctions, the net result of which would be their reinstatement and the restoration of their rights, privileges and perquisites in the University of Lagos after a period of absence of now, about 4 years and 7 months – from 30th December, 1980. The court of first instance granted their claims in their entirety. The court below set aside the declarations and injunction granted by the trial court on the expressed reason that:-

“Unless a decision is taken by the University Council to bring into operation the provisions of Section 17, the said provisions will not apply.”

The court below then held that the removal of the Appellants was legal and valid. The court below staked its decision on its interpretation and its application of Section 17 of the 1967 Act. If the court below is adjudged wrong in its interpretation of Section 17, then the trial court’s judgment and order will be restored, that is, if they are not otherwise practically impossible to enforce. And there lies the problem.

I have no difficulty at all in holding that the removal of the Appellants without recourse to the procedure outlined in Section 17(1) of the 1967 Act and Clause 7 of their Agreement was ultra vires the powers of the Respondents and therefore null and void, and their purported dismissal invalid. On this issue, I will prefer the judgment of the trial court to that of the court below.

What about the orders made by the court of first instance Will they be allowed to stand I propose to deal with the declarations first. In Vine v. National Dock Labour (1956)1 All E.R. 1 at p.8, (1956) 1 Q.B.658 at p.674 Jenkins L.J. said:-

“In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract and a claim for damages arises. It is necessarily a claim for damages and nothing more.”

In the House of Lords (1957) AC. 488 at p. 499-500 Viscount Kilmuir, L.C. observed and held:

“I now turn to the striking out of the declaration made by Ormerod J. The granting of a declaration is a matter of discretion … It seems to me that, however “cautiously” or “sparingly” the discretion is to be exercised, this is a case in which the judge was right to grant a declaration …. As I am differing from the majority of the Court of Appeal, I think it right to summarise my reasons. First, it follows from the fact that the plaintiffs dismissal was invalid that his name was never validly removed from the register and he continued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case, there, if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract. Here the removal of the plaintiffs name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which, by statute, that status conferred on him. It is therefore right that, with the background of this scheme, the court should declare his rights” (Italics mine)

Vine’s case (supra), is strikingly similar to the case on appeal – the Appellants’ dismissal or removal or termination was invalid; for that reason their names have not been validly removed “from the Register” of Professors of the University of Lagos; they continue therefore to have the right to be treated as Professors of the University of Lagos with all the benefits which by Statute (the University of Lagos Act 1967) their status as such Professors conferred on them. The Plaintiffs/Appellants therefore have a right to have their status restored and their rights declared:- Shitta-Bey supra refers: see also Hanson v. Radcliffe Urban District Council (1922) 2 Ch. 490 at p.503.

Again in the case of Francis v. Municipal Councilors of Kuala Lumpur (1962) 3 All E.R.633, the Judicial Committee of the Privy Council having held that the dismissal of the Plaintiff was ultra vires because by the terms of the Ordinance establishing the Council, the only power to dismiss the plaintiff was vested not in the Council but in its President, went on to say at p.63:”

In their Lordships’ view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of Service still subsists will rarely be made. This is a consequence of the general principle of law that the Courts will not grant specific performance of contracts of Service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court”.

This clearly implies that there may be circumstances crying out for a declaration. In Vine’s case supra, the special circumstance was that the plaintiff had a legal or statutory status which put his case over and above the ordinary master and servant’s relationship. This was what Idigbe, J.S.C. said in the case of Shitta-Bey supra and this was what the learned trial judge Bada, J. said in this case and I am in complete agreement with him. I do not see any valid reason why the court below should have set aside his order for declaration. I therefore hold that the court below erred in setting aside the declaratory orders made by the court of first instance. I hereby restore those orders.

The next issue is the reinstatement of the Appellants. It is this issue that bristles with some headaching difficulties and problems. In Gunton’s case supra Shaw, L.J. at p.582 observed:-

“It is trite enough that the wrongful repudiation of a contract does not, in general, determine the contract. It is for the innocent party to decide whether he will regard the contract as at an end and seek redress by way of damages, or whether he will regard the contract as subsisting and call for performance in accordance with the contractual terms”.

In this case, at the earliest opportunity, on the same day that the Appellants received their letters of termination and six months’ salary in lieu of notice, each returned his cheque for six months’ salary and emphasised that the Respondents’ termination of his appointment was ultra vires, null and void. In other words, each Appellant repudiated the Respondents’ repudiation of his contract. Each therefore regarded his contract as still subsisting and each immediately sued the Respondents as Defendants claiming that he is still a Professor and should be restored to his office in the University and, asking for a court order restraining the Respondents from preventing him from performing any of his functions. There was no delay, no indecision, no vacillation on the part of the Appellants. It is not their fault that the case has taken so long. In some cases, specific performance in lieu of damages may be the only appropriate remedy to give the innocent party his due, namely justice – thus providing him with a fulfilment of his expectations under the contract, which is still executory and specific performance applies only to executory contracts. This is the credit side.

But there is a debit side to the account. The first hurdle here is that generally the courts are very reluctant to make an order for specific performance of a contract of Service. Thus Salmon L.J. in Decro-Wall International SA v Practitioners in Marketing Ltd. (1971) 2 All. E.R. 216 at p. 223 after expressing a doubt whether a wrongful dismissal brings a Contract of Service to an end in law admitted that in practice it does. This confirms the view that “in the Sphere of employment this basic ex-position of the law is not easy or possible to reconcile with the realities of life” – (Shaw L.J. in Gunton’s case p.582). Suppose the master in breach refuses to employ the servant, can the court force him to An order that cannot be enforced will rather not be made by the court. The preservation of the contractual relationship is thus necessarily coterminous with the ability of the law to compel performance. But there is a mighty difference between a contract of personal service and an ordinary contract of Service like in Vine’s case or Shitta-Bey’s case. In contract of personal Service – personal pride, personal feelings, personal confidence and confidentiality may all be involved – all these make it difficult to compel performance of a contract of personal service against an unwilling master. Fortunately in the case on appeal, one is not dealing with a master who is an ordinary human being with pride, feelings etc. The Respondents are creatures of the law and the self same law will not find it difficult to compel their performance of the contract. Also by S.4 of Act No.3 of 1967, the Respondents were given the power to appoint Senior Staff like the Appellants, and by S.11(1)(c)(i) of the Interpretation Act No.1 of 1964, the power to appoint includes the power to reappoint or reinstate. A new Visitor has been appointed and I suppose there is now a new University Council. In Shitta-Bey’s case performance was ordered by a Writ of Mandamus and the heavens did not fall. In this case, I do not think the heavens will fall if the orders for injunction made by the court of first instance are restored. In Hill v. CA. Parsons & Co. Ltd. (1971) 3 All. E.R. 1345 Lord Denning M.R. after observing that generally “a servant cannot claim specific performance of the contract of employment” ontinued at p.1350:

“I would emphasise, however that, that is the consequence in the ordinary course of things. The rule is not inflexible. It permits exceptions. The court can in a proper case grant a declaration that the relationship still subsists and an injunction to stop the master treating it as at an end”.

In my view, the case on appeal is a proper case to grant a declaration and order an injunction as was done by the trial court whose judgment I hereby restore.

In the final result and for all the reasons given above, this appeal succeeds. The judgment and orders of the Court of Appeal, Lagos Division dated 9th January, 1985 are hereby set aside and the judgment and orders of the Lagos High Court in the consolidated suit delivered on 23rd June, 1981 are hereby restored. Each Appellant is entitled to cost which I assess at N300.00 in this Court and N250.00 each in the court below.A. O. OBASEKI, J.S.C.: Each of the appellants on receipt of a letter of termination of appointment dated 30th December, 1980 signed by the Senior Deputy Registrar of the 1st respondent – Exhibits P4, P19 and P16 purporting to remove him from office by terminating his appointment with effect from the 1st day of January, 1981 with six months salary in lieu of notice by cheque commenced these proceedings in the High Court of Lagos State.

The 1st appellant is a Professor of Zoology while the 2nd appellant is a Professor of law and the 3rd appellant is a Professor of Educational Psychology and Deputy Vice-Chancellor of the 1st defendant University, i.e. the University of Lagos. In the proceedings, each of the appellants claimed:

…………………………….

…………………………….

and cannot be removed from the said office except in accordance with the procedure laid down in section 17 of the University of Lagos Act 1967 as amended;

A declaration that the purported termination of the plaintiff’s appointment is ultra vires the defendants and contrary to the provisions of section 17 of the University of Lagos Act 1967 as amended, null and void and of no effect.
An injunction restraining the defendants, their servants and/or agents from preventing the plaintiffs from performing the functions of their respective offices.

In the case of the 3rd appellant, two additional reliefs sought read:

A declaration that as deputy vice-Chancellor of the University of Lagos, he is the only person entitled to act as Vice-Chancellor of the University of Lagos until the appointment of substantive vice-Chancellor.
An injunction restraining the defendants, their servants and/or agents from preventing the plaintiff from acting in the office of vice-Chancellor of the first defendant University until the appointment of a substantive vice-chancellor or from interfering with his enjoyment of any rights; privileges and benefits attached to the position of a person acting as vice-Chancellor of the first defendant university.”

Pleadings were settled filed and exchanged by the parties and at the close of pleadings, the matters came before Bada, J. for hearing. Bada, J. granted the reliefs prayed for but on the defendants’ appeal to the Court of Appeal against the judgment, the Court of Appeal set aside the judgment and ordered the claims to be dismissed. This is a further appeal.

The main issue for determination is whether the removal of the appellants should have been in exercise of the powers of removal stipulated in the memorandum of the terms of appointment or under section 17 of the University of Lagos Act 1967 as amended. There are other minor or subsidiary issues. The main issue involves a consideration whether the appellants were removed for misconduct or for any other reason and secondly whether the employment of the appellants is one with a statutory flavour. The appellants’ counsel however formulated the issues as follows:

(i) can a body created by statute with power to act in certain eventualities have power or discretion to decide whether it will or will not obey the provisions of the statute in a particular case

(ii) having accepted that the contract of employment between the appellants and the respondents is one regulated or reinforced by statute, and having accepted that the appellants were holders of public office in the Federation, was the Court of Appeal right in holding that the decision of the Supreme Court in Shitta-Bey v. The Federal Civil Service Commission (supra) and Mallch v. Aberdeen Corporation have no application to the case now under appeal

(iii) does the fact that section 17 of the Act did not specifically state that the contractual terms as to termination shall not apply mean that the contractual terms as to termination of the contract should be applied without observing the provisions of section 17

The respondents formulated the questions for, determination in the appeal differently. The questions formulated are four in number and read:

Whether the provision contained in the Agreement between the University and each appellant whereby the employment of each appellant is terminable by notice is inconsistent with or superseded by the provisions of section 17 of the University of Lagos Act.
If the answer to question I is in the negative, whether the provision contained in the Agreement aforesaid enables the University to terminate the employment of each appellant
Would it make any difference to the answer to question 2 if account is taken of the finding of the High Court that the termination of the employment of each appellant by notice in accordance with the Agreement was motivated or inspired by the contents of the Report of the Visitation Panel and the comments of the Visitor thereon
Whether this is the type of case in which the court would decree specific performance of the contract of service or order the reinstatement of the employee.

The facts of this case have been set out in admirable detail in the judgment just delivered by my learned brother, Oputa, JSC. the draft of which I had the advantage of reading in advance. I will therefore refer to as much of the facts as are necessary for the following additional comments of mine to support and emphasise the opinions of my learned brother, Oputa, JSC. on the issues raised with which I find myself in agreement.

The short facts are that the appellants were at various times appointed by letters and memoranda of appointment Exhibits P1 and Exhibits P18 and P19, and Exhibits P12 and P12A. These memoranda of appointment contain provisions of termination of appointment and for removal for misconduct. In relation to the 1st appellant, clauses 6 to 8 of Exhibit P1 read:

“6. The appointee shall not terminate his/her appointment other than on 30th September, in any year having given to the Council six months’ notice in writing of his/her intention to do so unless the consent of the Council be otherwise obtained. Subject to the provisions of paragraph 7 below the Council shall not terminate the appointment of the appointee without having given six months’ notice in writing of its intention to do so, or having tendered payment of six months salary in lieu of notice. In the case of notice already given, the Council may tender payment of the amount of salary applicable to the period of notice unexpired and, upon its doing so, the appointment of the appointee shall determine immediately.

Should the appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or wilful refusal to fulfil his duties, or become incapable, by reason of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for Council to employ him/her, then the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the appointee is made, the appointee shall have an opportunity of replying to the grounds alleged against him.
The appointment shall be on contract for – years only or shall be permanent. If the appointment is permanent, it shall be subject to confirmation after a period of three years and after confirmation, the appointee shall then retire at the close of the session (for this purpose 30th September) in which he/she attains his/her 65th birthday unless invited by resolution of the Council to continue in office for a specific period not exceeding five years. Any appointments of the rank of professorships made on a permanent basis shall be tenable until the normal retirement age of 65 without the three-year confirmation period.”

Exhibit P1 bears the date 13th day of September, 1965. The offer of appointment was accepted the same date. Exhibit P2 dated 13th September, 1965 was the letter of offer of the appointment and by Clause 2 thereof, the memorandum of appointment together with a copy of the Regulations Governing Service in the University were forwarded to 1st appellant.

In relation to Professor C.O. Olawoye, Exhibit P18 is the letter of offer of appointment as Professor of Law in the Faculty of Law and Exhibit 18A is the memorandum of Appointment. Clauses or Paragraphs 6, 7 and 8 of Exhibit 18A are almost in pari materia with Clauses or paragraphs 6, 7 and 8 of Exhibit P1. They read:

“6. Subject to the provisions of paragraphs 7 and 8 below, the Council shall not terminate the appointment of the appointee without having given six months notice in writing in the case of a full Professor or equivalent or three months in the case of a non-professorial member of staff, of its intention to do so or having tendered payment of applicable salary in lieu of notice. In the case of notice already given, the Council may tender payment of the amount applicable to the period of notice unexpired and, upon its doing so, the appointment of the appointee shall determine immediately.

Should the appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross-inefficiency or wilful refusal to fulfil his duties or become incapable by reasons of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for the Council to continue to employ him, then the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the appointee is made under paragraph 7, the appointee shall have an opportunity of replying to the grounds alleged against him.
The appointment shall be subject to confirmation after a period of three years and if confirmed, shall become permanent. The appointee shall then retire at the close of the session (for this purpose 30th September) in which he attains his 60th birthday unless invited by resolution of the Council to continue for a period not exceeding five years. Only appointments of the rank of professorship made on a permanent basis shall be tenable until the normal retirement age of 60 without the three year probationary period.

There is Clause 10 which provides that

“Other conditions of Service are as stipulated in the Senior Staff Regulations on Conditions of Service.”

The memorandum bears the date 23rd day of May, 1978. The letter of offer of appointment Exhibit PI8 also bears the same date 23rd May, 1978. In relation to Professor M.O.A. Durojaiye the 3rd appellant Exhibit P12 is the letter of offer of appointment and Exhibit P12A the memorandum of appointment.

Clauses or paragraphs 6, 7 and 8 are in pari materia with Clauses or paragraphs 6, 7 and 8 of Exhibit P1 and read:

“6 Subject to the provisions of paragraph 7 below, the Council shall not terminate the appointment of the appointee without having given six months notice in the case of a fun professor or three months’ notice in the case of a non-professorial member of staff, in writing of its intention to do so, or having tendered payment of applicable salary in lieu of notice. In the case of notice already given the Council may tender payment of the amount applicable to the period of notice unexpired and, upon its doing so, the appointment of the appointee shall determine immediately.

Should the appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or wilful refusal to fulfil his duties, or become incapable by reasons of general inefficiency and infirmity of mind or body, thus rendering it impracticable for the Council to continue to employ him, then the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the appointee is made, the appointee shall have an opportunity of replying to the grounds alleged against him.
The appointment shall be subject to confirmation after a period of three years and if confirmed, shall become permanent. The appointee shall then retire at the close of the session (for this purpose 30th September) in which he attains his 65th birthday unless invited by resolution of Council to continue in office for a specific period, not exceeding five years. Only appointments of the rank of professorships made on a permanent basis shall be tenable until the normal retirement age of 65 without the three year, confirmation period.”

The memorandum of appointment Exhibit ‘P12A’ bears the date 5th March, 1975.The letter offering the appointment Exhibit P12 bears the same date. The offer was accepted on 15th March and the Professor assumed duty on the 1st of July, 1975.

Having regard to the contention of the parties, I have set out the relevant provisions of the memoranda of appointment before going on to examine the provisions of section 17 of the University of Lagos Act. This becomes more imperative in view of the undisturbed finding of fact made by the learned trial judge that the appointee were removed from service for misconduct.

The respondent contended that it was not removal from service for misconduct but termination motivated by the finding of misconduct by the Visitation Panel and the recommendation of the Visitor.

It is not disputed that the three appellants are on permanent establishment with prospect to remain in service till the retiring age provided they are of good behaviour and conduct. The prospect of removal at the whims and caprices of the Council, the 2nd respondent does not arise and is not in the contemplation of the parties.

Counsel for the appellants maintained with unabating tenacity that the 2nd respondent, i.e. Council of the University of Lagos was by law obliged to comply with the provisions of section 17(1) of the University of Lagos Act before taking a decision whether or not to terminate the appointment of the appellants or to use the statutory term before removing the appellants from office. It is therefore important to a proper decision in this case to study the provisions of section 17(1) of the University of Lagos Act 1967 which reads:

“17 – (1) If it appears to the Council that there are reasons for believing that the Vice-Chancellor or the Provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or

employment, the Council shall –

(a) give notice of those reasons to the person in question;

(b) make arrangements-

(i) for a joint committee of the Council and the Senate to investigate the matter, where it relates to the Vice-Chancellor, the Deputy Vice-Chancellor, the Provost of a college, or the Registrar and to report on it to the Council; or

(ii) for a committee of the Senate to investigate the matter, where it relates to any other member of staff of the University, and to report on it to the Senate and to the Council and make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the Council after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may remove him by an instrument in writing signed on the directions of the Council.”

It is therefore a requirement of both the memorandum of appointment of the appellants and the provisions of section 17(1) of the University of Lagos Act 1967 that the appellants be afforded an opportunity of replying to allegations or charges against them before their removal. In other words, the Council has no power of removal of the appellants until it has found the appellants guilty of misconduct after giving them an opportunity of replying to the grounds alleged against them.

It is not disputed that the appellants were never heard before their purported removal by termination of their appointment. The vital question that arises is whether the appellants were removed for being guilty of misconduct.

An examination of Exhibit P6A, the Report of the Visitation Panel into the affairs of the University of Lagos, Exhibit P7 – minutes of the Emergency Meeting of the Council held in the Senate Chambers on Tuesday, 16th December, 1980 and Exhibit P8A and P8B page 461 Minutes of the Emergency meeting of Council held on Tuesday, December -16, 1980, Exhibit P9 – Minutes of the Emergency Meeting of Council on Monday 29th December, 1980 and Exhibit P11 – Minutes of the Special Meeting of Council held on Tuesday 30th December, 1980 is necessary. The comments of the Visitation Panel on the appellants is the beginning of the whole process leading to the removal of the appellants. The panel said of the 1st appellant, Professor C.I.O. Olaniyan:

“As one of the most Senior Professors in the University, Professor Olaniyan’s role in this matter is a bad example to the junior members of the University academic staff. We recommend that appropriate disciplinary measures be taken against him.”

The panel found him the principal actor against Professor Adadevoh. On Professors Olawoye, Ekundayo and Orangun, the panel said:

“We find that they were in the vanguard of the crusade to remove Professor Adadevoh as Vice-Chancellor. In the process of pursuing their objective, they decided not to cooperate with the Vice-Chancellor, refused to attend any meeting at which the latter would preside and in so doing were wilfully refusing to carry out the functions of their posts….. We recommend that disciplinary measures should be taken against them as deemed appropriate.”

On Professor M.O.A. Durojaiye, the panel found:

“……we found that Professor Durojaiye handled appointments to professorial posts in a most reckless and irregular manner. The recklessness becomes more reprehensible in view of the fact that one of the appointments was that of Dr .(Mrs.) Durojaiye, his own wife…..

By refusing to co-operate with Professor Adadevoh when he returned to the University on 26th August, 1980 Professor Durojaiye was in wilful dereliction of his statutory duties We find that Professor Durojaiye has disqualified himself from being entrusted with the leadership of the University in any form and therefore recommend that disciplinary measures should be taken against him as deemed necessary.”

These was, the relevant portions of the Visitation Panel’s Report forwarded to the Council of the University of Lagos. Also forwarded was the Visitor’s views on the Report.

By way of emphasis on their recommendation, the concluding portion of the Visitation Panel’s Report reads:

“We may conclude by emphasising our view that each and every one of the officers mentioned above has rendered himself unfit for any position of leadership or responsibility in the University of Lagos and recommend that each be considered unfit for so long as the Visitor may instruct.”

The Visitor’s views were no less condemnatory than the Report itself although the Visitor strongly urged that the future prospect of each of the appellants outside the University of Lagos should not be jeopardised. When therefore, the learned trial judge held that:

“The recommendations contained in paragraphs 7.4, 7.5, 7 and 7.8 of Exhibit 6A earlier on quoted, levelled certain acts against the plaintiffs: the said acts, in my view, amounted to misconduct within the meaning of ‘misconduct’ quoted above and therefore cognizable as such under section 17 of the University of Lagos Act 1967 and Clause 7 of the Memorandum of Appointment of each plaintiff.”

the conclusion was jusified by the evidence and I agree with the findings.

What did the Council of the University of Lagos do with the Report of the Visitation Panel and the Visitor’s view on it Exhibits P8A, P8B, P8 and P11 show that rather than set up its own committee or a committee of the Senate to investigate the charges, it accepted the Report of the Visitation Panel ‘and the Visitor’s views on it as a basis for the removal of the appellants from office. The Council made no secret about it that they were merely carrying out the wishes and directive of the Visitor and came to the conclusion that the appropriate step to take against the appellants for the misconduct found against them by the Visitation Panel was to terminate their appointment.

The Council forgot section 17(1) of the University of Lagos Act 1967 and the Memoranda of Appointment of the appellants by failing to follow the procedure laid down in section 17(1) of the University of Lagos Act and the Memoranda of Appointment. The question that arises from such an action flouting the law or in total disregard of the law is whether the Council’s action is or is not a nullity, null and void and of no effect whatsoever.

The Court of Appeal classified misconduct into two categories. The first being of a lesser kind not deserving of removal and the second one being the graver kind deserving of removal from office.

Removal whether by termination of appointment simpliciter or by dismissal, summary or otherwise or by retirement, is the deciding factor which the misconduct must create in the mind of the Council to bring the provisions of section 17(1) of the University of Lagos Act 1967 and the Memoranda of Appointment clauses or paragraphs 7 and 8 into play.

Once there are grounds for removal for misconduct whether circumstances invoke compassion of the Councilor not, the Council, in my opinion, is barred from acting without following the statutory procedure for removal and if it acts, the aggrieved appointee is entitled to seek a declaratory judgment declaring the removal null and void and an order of injunction.

The Court has in such circumstances unfettered judicial discretion to make a declaratory judgment. See Hanson v. Radcliffe UDC (1922) 2 Ch 49 at 507. Ewerami v. African Continental Bank Ltd (1978) 4 SC. 99. Such circumstances arise where the employment has statutory flavour and create an atmosphere relatively different from the ordinary relationship of master and servant or where the person dismissed occupied a special legal status such as tenure of a public office. See Halsbury Laws of England 4th Edition Vol.1 paragraph 186 at pages 174 and 175.

In this country, i.e. in Nigeria, the Universities are public institutions. They are all creation of statutes and 100% funded by the governments of either the Federation or the States. The staff are by Section 277 of the Constitution of the Federal Republic of Nigeria 1979 declared to be in the public service of the Federation if the university is established or funded principally by the government of the Federation or in the public service of a State if the university is established or financed principally by the government of a State.

In the instant appeal, the appellants are, in the light of section 277 of the 1979 Constitution, public officers in the public service of the Federation. In Hill v. CA. Parsons & Co. Ltd. (1971) 3 All E.R. 1345 at 1350, Lord Denning, dealing with the issue of voidability of termination of appointment said:

“Let me give an example taken from decided cases. Suppose a senior servant has a service agreement for five years certain with a company under which he is employed for five years certain and at the end to a pension from a pension fund to which he and his employers have contributed. Now suppose that, when there is only six months to go, the company without any justification or excuse, gives notice to terminate his service at the end of three months. I think it is plain that the court would grant an injunction restraining the Company from treating the notice as terminating his service. If the company did not want him to come to work, the court would not order the company to give him work. But so long as he is ready and willing to serve the company whenever they require his services, the court would order the company to do their part of the agreement, that is, allow him his free home and cool and enable him to qualify for the pension.”

Lord Denning, continuing on the same page said:

“The court can, in a proper case, grant a declaration in that the relationship of master and servant still subsists and an injunction to stop the master treating it as at an end …

Lord Reid, in the case of Ridge v. Baldwin (1963) 2 All E.R. 66 considering the various classes of dismissals, said at p.71:

“These (cases of dismissals) appear to fall into three classes, dismissal of a servant by a master, dismissal from office held during pleasure and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of serving and the master can terminate the contract with his servant at ant time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence it depends on whether the facts emerging at the trial prove breach of contract.”

But employment in the public service or public sector involves a marked departure from the ordinary relationship of master and servant. Explaining this departure, Lord Goddard in McClelland v. Northern Ireland General Health Services Board (1957) 2 All ER 129 at page 134 said:

“I think the fair conclusion is that the Board offered and the applicant accepted employment on terms as secure as is in fact enjoyed by civil servants. Although a civil servant as is well known, is employed at the pleasure of the Crown and can be dismissed at any moment, in fact once he is qualified by examination or probation and is taken on the establishment, he is secure in his employment till he reaches the retiring age apart of course from mis-conduct or complete inefficiency.”

In Nigeria, this expectation of security of tenure is reflected in the Civil Service Rules and Regulations and the Pension Act. In the instant appeal, it is reflected in the Memoranda of Appointment Clauses 6, 7,8 and 9 and section 17(1) of the University of Lagos Act 1967 the provisions of which have been set out above.

Adumbrating the modern position succinctly, Lord Wilberforce in the case of Malloch v Aberdeen Corporation (1971) 2 All ER 1278 at 1294 said: “One may accept that if there are relationships in which all the requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what has been called “pure master and servant” case, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then in my opinion, whatever the terminology used, and even though in some interpartes aspect the relationship may be called that of master and servant, there may be essential procedural requirements to be observed and failure to observe them may result in a dismissal being declared to be void.”

It is the failure to observe the procedural requirements for the removal of the appellants that has been complained of in these proceedings and the validity of the complaints have been strengthened by the facts laid bare before the court of trial below and fully recorded in the record of proceedings. The line between termination grounded on misconduct without a hearing and dismissal grounded on misconduct without a hearing is very very thin. In fact, I would say that there is no difference in the impact each has on the character of the appointee. Hence, Lord Wilberforce at pages 1295 to 1296 of Malloch v. Aberdeen Corporation observed:

“I come now to the present case. Its difficulty lies in the fact that the appellant’s appointment was held during pleasure so that he could be dismissed without any reason being assigned. There is little authority on the question whether such persons have a right to be heard before dismissal either generally or at least in case where a reason is in fact given…..

In Ridge v. Baldwin (1963) 2 All ER 65 at page 71, my noble and learned friend Lord Reid said: ‘It has always been held, I think rightly, that such an officer (one holding at pleasure) has no right to be heard before being dismissed.’

As a general principle, I respectfully agree, and I think it important not to weaken a principle which for reasons of public policy, applies at least, as a starting point to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute or regulations or code of employment or agreement. The rigour of the principle, is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reasons being given in an action which may vitally affect a man’s career or his pension – makes it all the more important for him, in suitable circumstances, to be able to have his dismissal declared void. So, while the court will necessarily respect the right, for good reasons of public policy to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and con of the employment to see whether elementary rights are conferred on him expressly or by necessary implication or how far these extend…..”

The appellants did not hold their offices during pleasure. Indeed, offices in the public services are not held during pleasure in Nigeria. Elementary rights are conferred on appointees either by rules and regulations, statutes, or memoranda of appointment as in this case. Coming down to Nigeria in the case of Basir Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC. 40 at 56, Idigbe, J.S.C. (dealing with the status of the Civil servant) delivering the lead judgment, said:

“The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by virtue of the constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974 pursuant to the provisions of section 160(1) of the 1963 Act No. 20 of 1963. These Rules therefore, in my view, have constitutional force, and they invest the public servant over whom they prevail a legal status; a status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship. Under these Rules (i.e. The 1974 Civil Service Rules which, as I already pointed out.’ have statutory force, and therefore, ought to be “judicially

noticed”) paragraphs 04107 to 04121 provide the procedure which must be adopted for the removal or retirement from service, as well as the general disciplining of public servants in the established pensionable cadre …

The learned Justice of the Supreme Court was dealing with an appeal in the case of an application for an order of mandamus to reinstate the officer into the office equivalent to his rank after obtaining a declaratory judgment declaring his premature retirement on ground of misconduct invalid. The dictum was a necessary observation to lay foundation for the grant of the order. The cases of the Kubeinje (1974) 1 All NLR 629

Stephen Adedeji v. Police Service Commission (1968) NMLR 102 Micheal Oguche v. Kano State Public Service Commission (1974) 1 NMLR 128 are also apposite although they were cases where disciplinary action was quashed in certiorari proceedings for non-compliance with statutory procedural requirements. A declaratory relief is a suitable alternative to proceedings by certiorari. Lord Reid in the case of Malloch v. Aberdeen Corporation (1971) 2 All ER. 1278 at 1284 in like vein said:

“If, then, the respondents were in breach of duty in denying the appellant a hearing, what is his remedy It was argued that it would not be right to revoke a resolution of dismissal because that would involve the re-instatement of the appellant in effect, granting specific implementation of his contract of employment which the law does not permit. But that would not be the effect. There would be no re-instatement. The result would be to hold that the appellants contract of employment had never been terminated and it would be open to the respondent at any time hereafter to dismiss him if they chose to do so and did so in a lawful manner. Unless they chose to do that the appellant’s contract of employment would continue. Then it was said that the proper remedy would be damages. But in my view, if the employer fails to take the preliminary steps which the law regards as essential, he has no power to dismiss and any purported dismissal is a nullity. We are not referred to any case where a dismissal after failure to afford a hearing which the law required to be afforded was held to be anything but null and void.”

In the light of the uncontroverted evidence adduced before the trial court, Bada, J. and his findings on the issues joined which were not disturbed by the Court of Appeal, I hold that the appellants’ contract of employment with the University of Lagos had never been terminated and the letters of termination of appointment Exhibits P4, Exhibit P19 and Exhibit P16 served on the appellants are null and void and of no effect. The case of Gunton v. London Borough of Richmond upon Thames (1980) 3 All ER 577 (1981) QBD 448 cited to us by Chief F.R.A. Williams, SAN. in these proceedings seems, in my opinion, to support the appellants’ case more than the respondents case.

For the above reasons and the reasons contained in the judgment of my learned brother, Oputa, JSC. delivered a while ago, the draft of which I had the advantage of reading in advance, I would allow the appeal and I hereby allow it.

The decision of the Court of Appeal together with the order as to costs is hereby set aside and the decision of the High Court, Bada, J. is hereby restored.

The respondents shall pay the appellants costs in the Court of Appeal fixed at N250.00 and in this Court fixed at N300.00.

K. ESO, J.S.C.: The importance of this case lies in the serious legal issues that have been raised apart from the fact that the whole issue revolves round the appointment conditions of service and the legal principles affecting the termination of the appointment of three University Professors.

My learned brother Oputa, J.S.C has given me the privilege of a preview of the judgment which he has just read. I do agree entirely with the views of my learned brother but I feel obliged to add my views having regard to the fundamental points of law that have arisen in the appeal. Some sections of the University of Lagos Act have come for interpretation and the interpretation placed upon these provisions particularly sections 4 and 17 thereof are bound to have far reaching effect on the appointments and conditions of service of University teachers.

There are certain points which are not in controversy between the parties:-

The University of Lagos and the University of Lagos Council, that is the Respondents in this Court are creatures of statute, which is the University of Lagos Act 1967 No.3 and therefore the Respondents must act within the confines of the Statute.
There is a contract of employment between the University Professors, the Appellants in this Court and the Respondents and the service of the Appellants must be governed by the contract.
The Regulations governing the service of Senior Staff in the Respondents’ University which indeed accompanied the offer of employment made to the Appellants apply to the Respondents.
The Respondents all contested the vires of the Appellants to terminate their employment by giving them six months notice and not relying on section 17 of the Act having regard to the circumstances leading to the termination of the employment.

The question therein is what were the circumstances that led to the determination of the employment of the Appellants by notice I will like to state the sequence of events here. I have already said that the Appellants were members of the University Teaching Staff. They were in fact appointed Professors of Zoology, Law and Educational Psychology respectively in the University.

In 1980, the Visitor of the University of Lagos set up a Visitation Panel. The report of the Panel which was submitted in November, 1980 is very material to the case and I will have to make some extracts that I consider relevant.

“CIRCUMSTANCES LEADING TO THE VISITATION

The circumstances leading to the Visitation are as follows:-

“On 1st November, 1978, the Vice-Chancellor, Professor B. K. Adadevoh, was appointed by the Supreme Military Council to succeed Professor J. F. Ade Ajayi, who had just been removed from

office by the same authority following riots by students of Nigerian Universities in April, 1978, and the submission of the Report of Mr. Justice Mohammed’s Commission of Inquiry into these riots. At the same time it was clear there was a polarization in the University of Lagos. The staff could be classified into two camps namely – the one supporting Professor Ade Ajayi, the other supporting the new Vice Chancellor. Naturally, the first group of staff were embittered by the removal of Prof. Ajayi and would have liked to see one of their group appointed the succeeding Vice-Chancellor. The evidence, to our mind, established clearly, that the group who are the friends of the former Vice-Chancellor did not give his successor, Prof. Adadevoh reasonable co-operation and chance to accused………………

At a regular meeting of Senate held on 30th April, 1980, it was resolved that a strong representation be made to the appropriate authorities in the overall interest of the University, to ensure the appointment, as soon as possible, of a suitable successor to Vice Chancellor Adadevoh, who would enjoy the confidence, respect and co-operation of his academic colleagues, the students and of the University community at large.”

FINDINGS OF THE VISITATION PANEL AGAINST EACH RESPONDENT

In regard to the first Appellant Professor Olaniyan the Panel found-

“that Professor Olaniyan was the principal actor in the agitation against Professor Adadevoh. We do not accept that he was acting from the motives he would want the world to believe. His influence is all pervading and he believes that no person can succeed as Vice Chancellor of the University of Lagos without his support. Professor Olaniyan was one of the persons who prevented members of Senate from attending the meeting properly scheduled for 5th November, 1980 thereby disrupting the orderly progress of the University. As one of the most Senior Professors in the University, Professor Olaniyan’s role in this matter is a bad example to the junior members of the University academic staff. We recommend that appropriate disciplinary measures be taken against him.”

The finding against the 2nd Appellant Professor Olawoye is as follows – (this finding is also as regards other two professors)

“Professors J. A. Ekundayo, C. O. Orangun and C. O. Olawoye

We find that they were in the vanguard of the crusade to remove Professor Adadevoh as Vice-Chancellor. 1n the process of pursuing their objective, they decided not to co-operate with the Vice-Chancellor, refused to attend any meeting at which the latter would preside and in so doing were wilfully refusing to carry out the functions of their posts. They joined in preventing members of Senate from attending the meeting of the Senate on 5th November, 1980 thereby disrupting the orderly progress of the University. We recommend that disciplinary measures should be taken against them as deemed appropriate.”

And against the 3rd Appellant Professor Durojaiye the Panel found –

“………….. that Professor Durojaiye closely identified himself with the demand for the removal of Professor Adadevoh as Vice-Chancellor. Between 14th January and 25th August, 1980 when he was acting for the Vice-Chancellor, we found that Professor Durojaiye handled appointments to professorial posts in a most reckless and irregular manner. This recklessness becomes more reprehensible in view of the fact that one of the appointments was that of Dr. (Mrs) Durojaiye, his own wife. He acted out of spite and without any competent authority in instructing the Bursar /0 reduce Professor Adadevoh’s personal emolument in the absence of the latter. By refusing to co-operate with Professor Adadevoh when he returned to the University on 26th August, 1980, Professor Durojaiye was in wilful dereliction of his statutory duties. He joined others to prevent members of Senate from attending the meeting of Senate properly summoned for 5th November, 1980, thereby disrupting the orderly progress of the University. We find that Professor Durojaiye has disqualified himself from being entrusted with the leadership of the University in any form and therefore recommend that disciplinary measures should be taken against him as deemed appropriate.” (Italics mine)

These then were the findings of the Visitation Panel. It is of interest to this appeal that the Visitor who set up the Panel and to whom this report was made was the President of the Federal Republic and Head of State of Nigeria. I am also prepared to take judicial notice of the fact, for it is notorious, that the same Head of State was Visitor to at least all the leading Universities in the country. This is important for one of the submissions before us was that the Appellants after the termination of their appointment upon the notice given them by the University could seek employment in other Universities. Probably for a University Professor to go from University to University like a travelling “Habeas Corpus” could be feasible in independent institutions the like of whom are in ancient moss overgrown structures of Oxford, Cambridge and Dublin and in the new red bricks of London and even in the new hardly furnished established Burkingham. Sadly, one cannot compare our Universities in Nigeria in terms of independence with these Universities. What hangs on a public officer in his official performance in Nigeria haunts him through life and through the length and breadth of the country. This is the society for which our laws are made and within which the laws must be interpreted. And so be it.

Back to Lagos University! The findings of the Visitation ended with a conclusion concerning some recommendations involving, inter alia the Appellants. The comments are –

“We may conclude by emphasising our view, that each and everyone of the officers mentioned above has rendered himself unfit for any position of leadership or responsibility in the University of Lagos and recommend that each be considered unfit for as long as the Visitor may instruct.”

The Visitor, that is the Head of State, adopted this recommendation and noted the Panel’s finding as to unfitness for any position of leadership or responsibility as being with reference to the University of Lagos. He said further

“It is therefore implicit in the Panel’s recommendation that the officers could be employed in other institutions of higher learning, at elsewhere, other things being equal.

Emphasis is on other things being equal. But would other things be equal in the con of the dependence of Universities in this country on the Government of the day and especially when voluntas in the retirement of public officers could be cum sine mora leaving one with Virgil’s sigh of pathos “Infandum”!

The Senate debated the report and the recommendation of the Visitor. The attention of that body was drawn to section 17 of the University of Lagos Act, and their responsibility to look into the matter and that they should not take it that the Visitor’s directive is immutable. So they were aware of the implications of the provision before taking their decision and after adjournments, the Chairman of Senate made the following remarks at the special meeting of 30th December 1980:-

“…Addressing Council, the Chairman remarked that the meeting was a continuation of yesterday’s meeting; as he indicated yesterday that he would call an emergency meeting to discuss any development on the leadership crisis in the University of Lagos. He stated further that the legal advice he got was that there had been no injunction against the University not to deal with the matter concerning Professors M.O.A. Durojaiye, C.I.O. Olaniyan, J. A. Ekundayo, C. O. Orangun, C. O. Olawoye, and Mr. M. O. Eperokun. Consequently matter cannot be regarded as sub-judice.”

And the following motions moved by Mr. Ofodile were adopted

“(a) That Council should terminate the appointments of Professors M.O.A. Durojaiye, C.I.O. Olaniyan, J. A. Ekundayo, C. O. Orangun, C. O. Olawoye and Mr. M.O. Eperokun, with immediate effect. Council should also direct that the Senior Deputy Registrar should communicate this decision to those affected and the Bursar should pay each of them six month’s salary in lieu of notice in addition to their other financial entitlements.”

It was as a result of this that letters terminating the appointments of the Appellants were sent to them and it is with this background that one should examine that various legal submissions made to this Court by learned Senior Advocates on both sides.

It is of special interest that apart from the provisions of S.17 of the Act which provides 17(1) If it appears to the Council that there arc reasons for believing that a member of the academic staff of the University should be removed from office or employment on the ground of misconduct, the Council shall –

(a) give notice of those reasons to the person in question,

(b) make arrangements.

(c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the council after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing “signed on the directions of the Council.”(Italics mine)

is also in the contract of employment of each of the Appellants provisions to the following effect –

“Should the Appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or wilful refusal to fulfil his duties, or become incapable by reasons of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for the council to continue to employ him, then the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the Appointee is made, the appointee shall have an opportunity of replying to the grounds alleged against him.”

The termination of the appointment of the appellants by six-months notice provided for by the Contract of Service is subject to the provision about misconduct stated above. In other effects, both under the ordinary terms of his employment and by the Statute which governs the University itself, the Appellants are protected in the terms of their employment from being sent out of the University without being heard as to the allegations of fraud, misconduct, gross inefficiency, wilful refusal to fulfil his duties or incapability by reasons of inefficiency or infirmity either of mind or body.

This is the term which the Appellants/Professors enjoyed but the issue was whether six months notice served on them to terminate their employment was legally sufficient. Bada J. in a well researched judgment held –

Although from the tenor of the letter quoted above the reason for the termination of the appointment of each Plaintiff is not stated, nevertheless, from the catalogue of events set out earlier on, there is no doubt that the termination of appointments of the Plaintiffs was in consequence of the Report of the Visitation Panel and a follow up of the Visitor’s views on the said Report even though termination of the appellants appointment was not the Visitor’s directive on this matter in respect of the Plaintiffs.” (Italics mine)

and after relying on the judgment of this Court in Shitta-Bey v. The Federal Public Service Commission (1981) SC 40 where Idigbe J.S.C. reading the unanimous decision of this Court said public officers have a legal status and they can only be removed as provided by the Rules governing them; granted the declarations sought by the Appellants.

This being only a concurring judgment I do not intend to go into too much detail as to what happened in the lower courts. However in the Court of Appeal Nasir P. reading the judgment of that Court to which Ademola and Nnaemeka-Agu JJ.C.A. concurred set aside the judgment of the High Court. He said, and rightly too in my respectful view-

“Thus where there were clear statutory provisions covering the relationship of master and servant the only way to terminate the contract of service of the servant is by complying with the procedure laid in the said statutory provisions.”

Nasir P. also said and I agree –

“In my opinion any public body charged with the power to employ staff must act within all other statutory provisions governing its procedure for employment, dismissal or termination of its staff under the contract of service.”

by authorities. The learned President went further and declared, rightly too-

“I accept that the University of Lagos is a creature of statute. I also accept as very sound that the University must work within the four walls of the Statute creating it and other statutory provisions as are made to apply to it.”

This, with respect, is also a very sound exposition of the law. But then the learned President started what he called a consideration of the relevant provisions of the University of Lagos Act 1967.

Section 4(1) of the Act provides

“4(1) For carrying out its object as specified in section 1 of this. Act the University shall have power

(a) to institute professorships, readerships, lectureships, and other posts and offices and to make appointments thereto; .

(j) to enter into contracts, establish trusts, act as trustees solely or jointly with any other person, and to employ and act through agents.”

Thus the learned President set out the University power to enter into any contract of service. He then considered S.17 which I have reproduced (supra) and interpreted the phrase “if it appears to the council” in the section as vesting the council with the status of sole authority as to whether there are reasons for believing that any of the officers mentioned in section 4(1) (also copied supra) should be removed from office for misconduct etc. He concluded on this topic-

“I am convinced and satisfied that section 17 of the Act of 1967 is intended to come into operation only when there is serious accusation against an officer as will, in the event of its being proved, justify dismissal with loss of benefits. All other cases must be dealt with under the natural law of contract of service.”

The President said and this is highly questionable having regard to the facts so well established and thoroughly documented and so well set out by the learned trial Judge-

“One thing is clear. Neither the Visitor nor the University Council reached a conclusion that any of the Respondents (that is, these Professors) should be dismissed. My understanding of the real effect of the Visitor’s decision in respect of all the Respondents is that they should leave the University of Lagos and get other appointments in any other University or any department of the Government of the Federation.”

To say this, with full respect to their Lorships of the Court of Appeal, this understanding must be to them only! It is to say the least preposterous. For a professor who has been declared not fit for leadership in a University to go to another University of which in all probability where the Head of State is also the Visitor to seek what – leadership What else should a professor seek Followership Or is he to go to the Public Service of the State of which the Visitor is, in his capacity of Head of State, head I do not think it is realistic. It might amount to seeking disgrace rather than seeking an honourable substitute for the employment which had been terminated! With the background, the reasonable interpretation is he had been dismissed for misconduct. And he was never heard in his own defence

The Court of Appeal saw this as a step taken in the public interest. Could that ever be so Removal for misconduct without the party affected being heard, to be in the public interest I do not agree. What is to happen to the maxim “Audi alteram partem” especially when he has right under statute to be heard To go further to say, it is in the interest of the professors, is, with every atom of respect, not very flattering to the intelligence of University Professors.

The Statute under which the University must operate guaranteed these professors hearing of their own side when there is allegation of misconduct. Their contract of service guarantees them the same. Under the statute they are protected. Under the ordinary common law and their contract of service they are protected. Then they are told it is in their interest that the protection should not be evoked when-

(i) the Visitation Panel found them inadequate;

(ii) the Visitor agreed they misconducted themselves and gave directives for discipline;

(iii) the Council which advised itself that they were not merely to rubber stamp the “directive” of the Visitor still found against them and upon legal advice, preferred not to hear their side but to give them notice of the termination of their employment.

I regret I am not persuaded by the very able submissions of Chief Williams that, where the termination by notice of six months is motivated or inspired by the contents of the Report of the Visitation Panel and the comments of the Visitor thereon for an academic staff who has an unblemished record of good record and his competence is beyond question, there would be no difficulty in terminating his employment by resorting to the contractual power to terminate the employment.

No, his conduct and competence have been questioned, then he must be permitted to defend himself as per his contract of service and the University Statute. The appeal succeeds for the above reasons and the reasons already stated in more detail by my learned brother Oputa J.S.C. I abide by all the orders made by my learned brother.

A. N. ANIAGOLU, J.S.C.: The judgment just read by my learned brother. Oputa, J.S.C., was made available to me in draft. I agree with his reasoning and conclusion.

In the course of arguments of Counsel, much zeal was shown on an issue which on the facts of this appeal, ought not to arise at all, namely, whether the Respondents had a choice between determining the appointments of the Appellants at Common Law, and doing so in accordance with section 17 of the University of Lagos Act, 1967 as amended. In the upsurge, exuberance and dexterity in the making of fine legal distinctions, in the analysis of statutory provisions, and in the search for common law derivations, took their toll on the energies and time of Counsel and the Court. I must confess that I was drawn-in, in the encounter and gave vocal expression in favour of the distinctions, but on a close study of the contracts of employment with which the appellants were engaged by the respondents, I have come to the conclusion that that legal exercise was, in the ultimate, rooted in futility.

I say so because the various contracts of employment contained all that was necessary to determine the major issues raised in this appeal since each had provision for the termination of the appointment and for removal for misconduct.

DR. CALEB OLANIYAN was appointed on 13th September 1965 as a Professor of Biology by a “Memorandum of Appointment” of that date o (Exhibit PI). By Clause 6 of that memorandum, he could terminate his appointment on the 30th September of each year after having given the Council of the University six months notice in writing of his intention so to do, unless the consent of the Council be otherwise obtained. In the same clause the Council could not terminate his appointment without giving him six months notice in writing or tender six months salary in lieu of notice. Clause 7, however, is the one most proximate since it deals with aspects of misconduct. Clause 7 reads thus:

“7. Should the Appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or wilful refusal to fulfil his duties, or become incapable, by reason of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for the Council to continue to employ him/her, than (sic) the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the Appointee is made, the Appointee shall have an opportunity of replying to the grounds alleged against him.”

Before that appointment in September 1965, the University already had in being “Regulations Governing Service in the University of Lagos” which came into operation on 1st July 1963, tendered in evidence as Exhibit P3. Dr. Olaniyan accepted his appointment on 13th September 1965 saying:

“I accept with pleasure the offer of appointment upon the terms and conditions set forth above and I shall take up my duties….”

The Registrar and Secretary to the Council had written to Dr. Olaniyan on that 13th September 1965 enclosing the memorandum of appointment together with a copy of the said regulations governing service in the University of Lagos. Clause 15 of the said Regulations provided for summary termination of appointment by the University. The said clause reads:

Termination by the University

(a) An appointment may be summarily terminated by the University on the following grounds only:-

(i) If the employee in relation to his duties to the University is guilty of misconduct, gross inefficiency, or willful refusal to fulfill his duties to the University;

(ii) if the employee is convicted of criminal offence involving moral turpitude;

(iii) if the employee becomes incapable, by reason of general inefficiency and infirmity of mind or body, of rendering further efficient service to the University.

(b) An appointment shall not be terminated until:-

(i) the employee has been notified in writing of the grounds on which consideration is being given to the termination of his appointment; replying to the grounds alleged against him, and of appearing in person at a meeting of the Provisional Council at which the termination of his appointment is to be considered.

(c) Where an appointment may be terminated in accordance with paragraph 15(a)(iii), the provisional Council, in lieu of termination may in its discretion, permit the employee to resign his appointment in accordance with paragraph 14.

(d) Where an appointment is terminated in accordance with paragraph 15(a)(i) and (ii), the employee shall not, unless the Provisional Council otherwise resolves, be entitled to receive accrued leave-pay or travelling expenses. “(Italics mine)

It would follow from the above that even before the coming into force of the University of Lagos Act, 1967, No.3 of 1967, Dr. Olaniyan had in-built protection against being removed for misconduct without being heard.

The next to be appointed was DR. MICHEAL DUROJAIYE as a Professor of Education on 5th March 1975 by a “Memorandum of Appointment” of that date, tendered in evidence as Exhibit P.I2A. Then, apparently, he was attached to the Department of Education at Makarere University, Kampala, Uganda. The said memorandum of appointment was sent to Dr. Durojaiye under cover of a letter dated 5th March 1975 signed by the Registrar and Secretary to Council, one “S. Ade Osinuly”. Again Clauses 6 and 7 of the memorandum contained provisions similar to those in the memorandum of appointment of Dr. Olaniyan. Clause 6 provided for termination of appointment, either way, while Clause 7 dealt with misconduct.

DR. CLIFFORD OLAWOYE was appointed Professor of Law, in the Faculty of Law, on 23rd May 1978, long after the University of Lagos Act had come into force in 1967. Clause 10 of his own “Memorandum of Appointment” stipulated that:

“other conditions of service are as stipulated in the Senior Staff Regulations of Conditions of Service,”

thus, tying up his appointment with the same regulations governing service in the University of Lagos, Exhibit P3. The last sentence of Clause 7 in each memorandum of appointment of each of the appellants, as hereinbefore shown, states:

“Before any removal of the Appointee is made, the appointee shall have an opportunity of replying to the grounds alleged against him”.

Where therefore the issue was one of misconduct against any of the appellants, it was part of the contract of engagement of each appellant that he must be heard before the University could remove him from office. The issue of terminating their appointments at Common Law without hearing them did not arise.

This was even without reference to the University of Lagos Act, 1967. But then the Act, came into being and additionally reinforced the position of the Respondents. Shorn of all pretences, the question is:

were the appellants in truth and in reality, removed from their employment, by the Respondents, by reason of their alleged misconduct

From the available facts and circumstances it is not in doubt that the University of Lagos Council accepted the conclusion of the Report of the Visitation Panel that each of the Appellants had

“rendered himself unfit for any position of leadership or responsibility in the University of Lagos”

together with its recommendation that

“each be considered unfit for so long as the Visitor may instruct”; and also the Visitor’s condemnatory views on the Appellants.

Having accepted those views and having acted on them in terminating the appointments of the Appellants, it is idle for the Council to take the posture that it had treated them leniently in merely terminating their appointments and giving them six months salary in lieu of notice or to disguise the reasons for their removal by writing to each one a simple letter of termination alleging no fault or misconduct. I am particularly in agreement with Oputa, J.S.C., where he stated, in the lead judgment, thus:-

It is not for the Council to decide that it will frustrate S.17(1) by paying salary in lieu of notice or by disguising the reasons for the removal or even giving no reasons at all”.

Section 17(1) of the Lagos University Act 1967 reads:

“17. – (1) If it appears to the council that there are reasons for believing that the Vice-Chancellor, the Deputy Vice-Chancellor, the Provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall-

(a) give notice of those reasons to the person in question;

(b) make arrangements –

(i) for a joint committee of the council and the senate to investigate the matter, where it relates to the Deputy ,Vice-Chancellor, Provost of a college or the registrar, and to report on it to the council; or

“(ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and

(c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter;

and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council.” (Italics mine).

Section 17(1) (ii) above is the one pertaining to the Appellants. The above procedure may appear cumbersome to the Council in relation to a member of the academic staff of the University in whom it has lost confidence and the temptation may be there for the Council to opt to remove such a person by the easier and simpler method of a termination of appointment coupled with a six month’s salary in lieu of notice. That in effect, with all due respect, was the line of reasoning of the learned President of the Court of Appeal when he drew the distinction between minor and major offences. But there is no love lost, in law, between justice and convenience. I still think that what I said in STATE CIVIL SERVICE COMMISSION & Another v. ALEXIUS IKECHUKWU BUZUGBE (1984) 7 SC. 19 at 40 holds good, namely, that:

“Instances may exist where short-cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognised that in legal matters and particularly in matters of natural justice, short-cuts many times prove counter-productive, by short-circuiting legal norms and norms of natural justice, and rendering the whole exercise a futility. In that case the short-cut becomes the ineffective longer route.”

The procedure adopted by the Council may be quick, convenient and time saving, but the dictates of justice demand that the legal principle of audi alreram partem must be obeyed no matter how cumbersome and inconvenient it may appear to the Council.

The Appellants’ cause of action, according to the writ of summons, arose on 30th December 1980.The 1979 Constitution of the Federal Republic of Nigeria had then come into force. The Respondents by virtue of section 277 of the Constitution had become members of the Public Service of the Federation which therein, as applicable to the University of Lagos, is a defined, inter alia, as:

“(e) staff of any educational institution established or financed principally by the Government of the Federation.”

Being members of the Public Service, their tenure must be jealously guarded and all Rules, Regulations and Procedural Provisions appertaining to them, meticulously followed. Their position, therefore, is not that of mere master and servant relationship; it is a position recognised as having “statutory flavour” on the principles enunciated in BASIR SHITTA-BEY v. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40 at 56. So also must the procedure laid down in the Constitution be meticulously followed in removing an officer to whom it appertains: SAMUEL O. v. IGBE v. GOVERNOR, BENDEL STATE And Another (1983) 2 SC. 114.

To remove a public servant in flagrant contravention of the Rules governing him, whether under contract or under provisions of a Statute or Regulations made thereunder, is to act capriciously and to destabilize the security of tenure of the public servant, frustrate his hopes and aspirations, and thereby act in a manner inimical to order, good government and the well-being of society.

My learned brother, Oputa J.S.C., has set out, in admirable details, the facts of the Appeal, the law relevant thereto and the conclusions flowing therefrom. As I have stated earlier, I am in agreement with his said judgment.

Accordingly, I, too, must allow this appeal and hereby allow it, set aside the judgment of the Court of Appeal, and in its place restore the judgment of the High Court. I abide by the rest of the orders as contained in the said lead judgment of Oputa, J.S.C.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Oputa JSC. I agree entirely with the reasons and the conclusion that this Appeal should be allowed. I however crave indulgence to be tedious for having to state my reasons so elaborately only for so agreeing with him. I have adopted this course of action essentially because of the importance of this case to the University and also to contribute to the developing principle of specific performance with respect to contracts of service.

This is an appeal from the judgment of the Court of Appeal Division, in Lagos. The Court of Appeal set aside the judgment of C. O. Bada J of the High Court of Lagos State, in Lagos which granted all the reliefs claimed by Plaintiffs. Plaintiffs, who are Professors in the 1st Defendant in three separate suits which were subsequently consolidated; brought actions against the Defendants for a declaration that they were still Professors in the 1st Defendant University. That their purported dismissal by the 2nd Defendant from employment were ultra vires and void. They also claimed for an order for reinstatement in their offices and an injunction restraining the defendants from performing their duties and enjoying the privileges of their offices. The three suits were subsequently consolidated. This appeal is from the action so consolidated. The learned trial Judge held that the appointments of the Plaintiffs were not validly terminated, and granted all the reliefs claimed. Defendants appealed to the Court of Appeal, where the judgment of trial Court was set aside. The Court of Appeal held that the contracts of employment of plaintiffs, who were respondents in that Court, were validly terminated. An order dismissing the claim of the appellants was substituted. As I have already stated, this is an appeal from that judgment.

I do not wish here to repeat the details of the facts which have been very ably and fully stated in the judgment of my learned brother Oputa JSC. I am concerned here with only so much of the salient facts as I deem it necessary and convenient for consideration of the determination of the issues raised in this appeal. Undeniably, the main issue in this litigation is the very simple and otherwise narrow one of whether the 2nd respondent can validly terminate the appointments of the appellants without complying with their terms of employment. The subsidiary is, if it was not validly terminated whether they can be reinstated. The second is predicated by and rests entirely on the validity of the first. In other words, the issue is whether the terms of contract and conditions of service enable 2nd respondent to terminate the appellants from their employments in the 1st respondent University without complying with the provisions of S.17 of the University of Lagos Act, 1967. I shall however refer to the claims of the appellants, and so much of the pleadings of both parties that are relevant to the determination of their claim. The 1st and 2nd plaintiffs have claimed as follows.

“1. A declaration that the Plaintiff is Professor of Zoology in the University of Lagos and cannot be removed from the said office except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended)

A Declaration that the purported termination of the Plaintiff’s appointment as conveyed in the letter REG123A of the 30th day of December, 1980 is ultra vires the Defendants, contrary to the provisions of S.17 of the University of Lagos Act 1967 (as amended) null and void and of no effect whatsoever.
An injunction restraining the Defendants their servants and/or agents from preventing the Plaintiff from performing the functions and duties of the office as Professor of Zoology or from interfering with his enjoyment of the rights, privileges and benefits attached to the said office.”

The 2nd Plaintiff was at the material time the Dean of the Law Faculty. The 3rd plaintiff who was also the Deputy Vice-Chancellor of the 1st Defendant University at the material time has claimed in addition.

“1. A declaration that the Plaintiff is Deputy Vice-Chancellor of and Professor of Educational Psychology in the University of Lagos and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended).

A declaration that the purported termination of the Plaintiff’s appointment as conveyed in the letter REG/23A of the 30th day of December, 1980 is ultra vires the Defendants, contrary to the provisions of S.17 of the University of Lagos Act 1967 (as amended) null and void and of no effect whatsoever.
A declaration that as Deputy Vice-Chancellor of the University of Lagos he is the only person entitled to act as Vice-Chancellor of the University of Lagos, until the appointment of a substantive Vice-Chancellor.
Injunction restraining the Defendants their servants and/or agents from preventing the Plaintiff from performing the functions and duties of his offices as Deputy Vice-Chancellor and Professor of Educational Psychology or from interfering with his enjoyment of the rights, privileges and benefits attached to the said offices.
Injunction restraining the Defendants their servants and/or agents from preventing the Plaintiff from acting in the office of Vice-Chancellor of the first Defendant University until the appointment of a substantive Vice-Chancellor or from interfering with his enjoyment of any rights, privileges and benefits, attached to the position of a person acting as Vice-Chancellor of the first Defendant.

The following Paragraphs 4, 5, 7, 8, 9, 10, 11 of the statement of claim of the 1st Plaintiff which is the same, in all the Plaintiffs but substituting the relevant professorships are relevant.

“4. By a letter dated the 13th of September, 1965, the Plaintiff was appointed Professor of Zoology in the first Defendant subject to the terms and conditions therein contained, with effect from the 1st of September, 1965.

The Plaintiff avers that by law, the terms and conditions of his said appointment are subject to the provisions of the University of Lagos Act 1967 as amended from time to time.
The Defendants by their servant and/or agent the Senior Deputy Registrar of the first Defendant have addressed a letter dated the 30th of December, 1980, reference REG.23A, to the Plaintiff purporting to remove him from office with effect from the 1st day of January 1981 with six months’ salary in lieu of notice and enclosed therewith a cheque.
The Plaintiff avers that he cannot be removed from his said office as Professor of Zoulogy except in accordance with the provisions of Section 17 of the University of Lagos Act 1967 as amended.
The Plaintiff avers that he was given no notice by the second Defendant of any reasons why he should be removed from his said offices as required by Section 17(1)(a) of the said Act.
The Plaintiff avers that no committee of the Senate of the first Defendant investigated the issue of his removal from his said office nor was he given any opportunity of being heard before the said investigating committee on the issue of his removal from his said office.
The Plaintiff avers that no report of the said investigating committee was made to or considered by the second Defendant before he received the said purported letter of termination referred to in paragraph 7 herein.”

In their common statement of defence, the defendants specifically in their paragraph 2, denied paragraphs 1, 5, 6, 11 and 12 of the statement of claim and averred in paragraphs 3, 5, 6, 7, 9,11 as follows:

“3. The defendants admit that their powers and functions are regulated by statute as alleged in paragraphs 2 and 3 of the Statement of Claim but they will contend that in so far as no provisions are made by the University of Lagos Act 1967 the common law and doctrines of equity applicable to corporations aggregate will apply to the 1st defendant and the common law and doctrines of equity applicable to unincorporated bodies will apply to the second defendants.

With further reference to paragraph 1 of the Statement of Claim the defendants state that the appointment of the Plaintiff as a Professor in the first Defendant University was effectively terminated by a letter dated 30th December, 1980. With the said letter the 1st defendants forwarded to the Plaintiff a cheque in the sum of N5,901,00 being six months salary in lieu of notice payable to the Plaintiff on such termination in accordance with Clause 6 of the written agreement between the parties dated 23rd May, 1978. Accordingly the Plaintiff had ceased to be employed on the academic staff of the first Defendant University with effect from 1st January, 1981.
If by “letter dated 23rd May 1978″ the Plaintiff means the Memorandum of appointment of that date signed by or on behalf of the Plaintiff and the defendants, then the defendants admit paragraph 4 of the Statement of Claim. The defendant will rely on the said Memorandum of appointment.
With further reference to paragraph 5 of the Statement of Claim the Defendants aver that the appointment of the Plaintiff as Professor was made by the defendants pursuant to their powers to enter into contracts for the carrying out of the objects of the University.

Accordingly the Plaintiff’s appointment is subject partly to the contract between the parties and partly also the provisions of the University of Lagos Act, 1967.

The defendants will contend at the trial of this action that the provisions of section 17 of the University of Lagos Act 1967 have no relevance and are not applicable to the exercise of the University’s powers to terminate the Plaintiffs employment in accordance with the terms of the contract binding between the parties.
If, contrary to the contention of the defendants, the court should hold that the provisions of section 17 of the University of Lagos Act is relevant and applicable to the termination of the plaintiff’s employment as a staff of the University, the defendants will contend that the said provisions were intended for the Plaintiffs benefit and he has waived his right or privilege by accepting an appointment on the terms of the Memorandum dated 23rd May, 1978.”

After a careful reading of the pleadings as a whole, it seems to me that the areas of conflict have been narrowed down to only the following very few issues hitherto indicated. These are whether-

(a) The appointment of Plaintiffs as Professors in the 1st defendant University etc. were validly terminated by the 2nd Defendant.

(b) The Plaintiffs’ appointment if not validly terminated, they can be reinstated in their positions before their termination.

Defendants admit that Plaintiffs were validly appointed Professors by the 2nd defendant, but that such appointments have been validly terminated by a letter dated 30.12.80. Hence, the averment that Plaintiffs are no longer Professors in the 1st Defendant University. Again Defendants admit that the terms of employment of Plaintiffs were governed by the Memorandum of Appointment signed by them on their appointments and Regulations governing Conditions of Employment given to them. Defendants admit that the appointments by the 1st defendant of the Plaintiffs are subject partly to the contract between the parties and partly also to the provisions of the University of Lagos Act, 1967. However, defendants deny that section 17of the University of Lagos Act 1967 which they contend are not applicable, they say has no relevance to the exercise of the University’s powers to terminate Plaintiffs’ employment in accordance with the contract of employment in accordance with the contract of employment binding between the two parties.

The Defendants deny that even if Plaintiffs were unlawfully dismissed they are entitled to reinstatement. It appears to me fairly obvious that in the consideration of the issues joined it would be necessary to determine between the parties whether the appointment of Plaintiffs is

(a) Governed by the terms of their contract and Memorandum of Appointment as claimed by the Defendants, or in addition the University of Lagos Act, 1967 as claimed by the Plaintiffs, and Regulations governing Conditions of employment (referred to shortly as the Regulations) or

(b) If section 17 of the University of Lagos Act, 1967, is applicable, whether 3rd Defendant has waived his rights thereunder by accepting an appointment on the terms of the Memorandum dated 23rd May, 1978.

There is no dispute that plaintiffs were appointed by the 2nd respondent Council and hold their appointments as employees of the 1st respondent University. There is complete accord that the 1st respondent University has powers under the University of Lagos Acts 1962, 1967 to enter into the contracts of employment which the plaintiffs. The only quaere is as to what provisions of the law govern such contract of employment.

It is however pertinent to consider also that paragraphs 6(a)-(j) of the amended statement of claim, averred facts relating to the recommendation of a Visitation Panel set up by the Visitor of the 1st respondent University and the fact that the 2nd respondent purported to have acted on such recommendation. This was in paragraph 2 of amended statement of defence denied specifically by the. defendants and in paragraph 7 of their amended statement of defence they regarded the facts averred as irrelevant to the determination of the action. Paragraph 8(1) of the amended statement of defence averred as follows:

“8(1) The 1st defendant did not in fact carry out or give effect to its decision taken at the meeting of the Council on the 16th of December, 1980, concerning the directive of the Visitor in so far as it relates to the plaintiff and the plaintiff was not asked to withdraw his services from the University as directed by the Visitor.”

A short background to the genesis of the action

I think it is of special significance and eminently useful to the determination of the issues in this appeal to have recourse to the background of the events even if in summary form, which gave rise to this litigation. I am not oblivious of the contention of Chief Williams, S.A.N., learned leading counsel to the appellants that the motive of the respondents in exercising their legal right, if they have one, however reprehensible, will not in law affect the lawful exercise of that right. This is a well stated and incontrovertible proposition of law which has been laid down in Mayor of Bradford v. Pickles (1895) AC. 537. I am not stating the background to suggest motives for the act. The motive, I am satisfied, is irrelevant. The actions are for declarations essentially that the acts of 2nd defendant in purporting to terminate the appointments of plaintiffs are ultra vires and accordingly void. All the plaintiffs are Professors in the 1st defendant University. They still claim to be Professors there notwithstanding the contention to the contrary by the defendant.

The appointment of Prof. B.K. Adadevoh in succession to Prof. J. Ade Ajayi was heralded with concerted opposition student and academic, of such a dimension as to disrupt ordinary academic activity. In fact that happened. On the 11th November, 1980, the Executive President and Head of State of the Federal Republic of Nigeria, Alhaji Shehu Usman Aliyu Shagari in his capacity as visitor to the 1st respondent University by instrument in exercise of powers conferred on him by Section is of the University of Lagos Act, 1967 as amended by the University of Lagos (Amendment) Act 1972, appointed Moses Balonwu, (Rtd. Justice), Chairman, M.S. Angulu, S.O.

Olusemo, Members and Mr. A.A. Banuso as Secretary, as members of a panel to “conduct a visitation into the relationship between the present Vice Chancellor of the University, Professor Babatunde Kwaku Adadevoh, on the one hand and the Council of the University on the other hand with respect to the management of the affairs of the University.” The panel was directed to submit its report not later than ten days from the date of the appointment, which would be on the 21st November, 1980.

The panel made its report to the Visitor in a letter dated 27th November, 1980. The background to the visitation was the appointment of Professor Babatunde Kwaku Adadevoh as Vice-Chancellor of the 1st respondent University in succession to Professor J. Ade Ajayi. There was considerable opposition both by the Students’ Union and the academic community of the institution. The panel classified the polarisation of the factions into

(i) those supporting Professor Ade Ajayi, the out-going Vice-Chancellor;

(ii) those supporting Professor Adadevoh.

In their opinion, as they stated in their report,

“The evidence, to our mind, established clearly, that the group who are the friends of the former Vice-Chancellor, did not give his successor, Prof. Adadevoh reasonable co-operation and chance to succeed.”

It is clear from Chapter 7 of the report of the Panel, and their recommendations, the names of the Plaintiffs/Appellants among others were categorized as those who were identified as active in the demand for the removal of Professor Adadevoh, and at para.7.7 it was recommended that “appropriate disciplinary measures be taken against each of them having regard to the seriousness of their actions. As it were to pre-empt what type of disciplinary measures that should be accepted as suitable, the panel at para. 7.8 expressed their own view as follows

“We may conclude by emphasising our view, that each and every one of the officers mentioned above has rendered himself unfit for any position of leadership or responsibility in the University of Lagos, and recommend that each be considered unfit for so long as the Visitor may instruct.”

In Exhibit P6B which is the Visitor’s views on the Report of the Visitation Panel into the Affairs of the University of Lagos, the Visitor commented on the above recommendation which affects appellants as follows –

“The Visitor accepts these recommendations, and notes that the Panel’s finding as to unfitness for any position of leadership or responsibility is with reference to the University of Lagos. It is therefore implicit in the Panel’s recommendation that the officers could be employed in other institutions of higher learning, at elsewhere, other things being equal. With respect to the seven officers therefore, the Visitor now directs as follows:-

(a) ….. x x x x

(b) Prof. M.O.A. Durojaiye, Deputy Vice-Chancellor, Professors C. I. Olaniyan C.O. Olawoye The above officers are required to withdraw their services from the University of Lagos by December 31, 1980, and seek appointment elsewhere. The normal period of notice required should be waived and any intervening break in service between December 31, and when they obtain other appointment, if in the public sector should be condoned for pension purposes wherever applicable.”

An emergency meeting of the 2nd respondent was held on the 16th December, 1980, and it was decided to implement the decision of the visitor by requesting the appellants to withdraw their services from the 1st respondent University. The 2nd respondent after full deliberations in their emergency meeting of the 29th December, 1980, directed the Senior Deputy Registrar to write the appellants to withdraw their services by 31st December, 1980. On the 30th December, 1980, at a Special Meeting summoned on the Order of the Pro-Chancellor and Chairman of Council, which he regarded as a continuation of the meeting of the 29th, Council adopted a resolution on a motion sponsored and moved by Mr. Ofodile seconded by Mr. Ogun to terminate the appointments of appellants among others, and pay each of them six months salary in lieu of notice in addition to their official entitlements. This was to have immediate effect, and should be communicated to the appellants. This resolution led to the letters of termination Exhibits “P16” and “P19”. I reproduce one of the letters of termination, all of which are identical as follows-

“UNIVERSITY OF LAGOS, NIGERIA

SENIOR DEPUTY REGISTRAR’S OFFICE

REF. NO. REG/23A 30th December. 1980

Prof. M.O.A. Durojaiye.

Deputy Vice-Chancellor,

University of Lagos.

Lagos,

Dear Prof. Durojaiye.

TERMINATION OF APPOINTMENT

The Council of the University of Lagos has decided to terminate your appointment, with six months’ salary in lieu of notice, as a member of staff of the University of Lagos in accordance with the terms of your appointment. The six months start from 1st January, 1981. The relevant provision stipulates that the Council shall not terminate your appointment “without…. having tendered payment of applicable salary in lieu of notice.” Accordingly, please find attached herewith a cheque in the sum of (Five thousand Five Hundred and Forty-three Naira and Forty kobo) N5,543.40 being six months salary in lieu of notice.

Council also approved that you can make claim for your terminal benefits in accordance with the appropriate laws and regulations on gratuity and pension. You are therefore requested to let us have, as early as possible, appropriate record of any previous services which you may wish to be taken into consideration in working out your terminal benefits.

Please acknowledge the receipt of this letter.

Yours sincerely,

(Sgd.) I. O. AJIJOLA

Senior Deputy Registrar.”

It is significant to observe that this is a unilateral repudiation of the contract of service of each of the appellants. Each of the appellants similarly rejected this unilateral repudiation. Incidentally this does not seem to me, on the recommendation, the type of disciplinary measure envisaged in the Visitor’s comments. I shall later in this judgment discuss the legal consequence of this rejection. It is the rejection of the measures adopted by 2nd respondent in the assumed implementation of the directive of the Visitor that has given rise to the action instituted by the appellants.

I have already reproduced the relevant averments in the pleadings relied upon by the parties. There is no dispute that appellants are validly in the employment of the 1st respondent University. It is also admitted that 1st respondent University, a statutory body has powers under its statute to enter into contracts. It is therefore of crucial importance to determine the scope of the contract governing the terms and conditions of employment of appellants.

Terms and Conditions of Employment of Appellants.

It is pertinent to point out that each of the appellants on offer of appointment signed a Memorandum of Appointment, and in his letter accompanying the offer was given a copy of the Regulations Governing Service in the University. It was stated that this latter document was subject to amendment from time to time by the 2nd respondent. There was the assurance in the forwarding letter that no amendment adverse to the terms stated in the Memorandum of Appointment and Regulations would be made without the consent of the appellants. It is therefore understandable that the offer to and acceptance by the appellants of appointments in the 1st Respondent was made on the basis of these two documents indicated, namely

(i) Memorandum of Appointment.

(ii) Regulations governing service in the University of Lagos.

Thus to have a composite effect of the terms and conditions of service which includes termination, it is essential to read the two documents together. See Kutner v. Phillips (1891) 2 QB.267.

Paragraph 6 of the Memorandum of Appointment deals with termination of appointment simpliciter by the 2nd respondent and the appellants. Paragraph 7 prescribes the circumstances when the 2nd respondent can remove the appellants. I reproduce the relevant paragraphs below.

“6. The Appointee shall not terminate his/her appointment other than on the 30th September, in any year, after having given to the Council six months’ notice in writing of his/her intention to do so, unless the consent of the Council be otherwise obtained. Subject to the provisions of paragraph 7 below, the Council shall not terminate the appointment of the Appointee without having given six months’ notice in writing of its intention to do so, or having tendered payment of six months’ salary in lieu of notice. In the case of notice already given, the Council may tender payment of the amount of salary applicable to the period of notice unexpired and, upon its doing so, the appointment of the Appointee shall determine immediately.

Should the Appointee be convicted of a criminal offence involving moral turpitude or in relation to his duties to the University be found guilty of misconduct, gross inefficiency, or wilful refusal to fulfil his duties, or becomes incapable, by reason of general inefficiency and any infirmity of mind or body, thus rendering it impracticable for the Council to continue to employ him/her, than the period of notice necessary to terminate his appointment shall be at the discretion of the Council. Before any removal of the Appointee is made, the Appointee shall have an opportunity of replying to the grounds alleged against him.”

Regulations governing service in the University is clearly an amplification and more detailed provisions than those made in the Memorandum of Appointment. For instance para. 7 of Chapter II which deals with Appointment provides as follows:-

“7. Appointments

Appointments shall be made on permanent basis or on contract basis, or on secondment or on transfer from the public service in Nigeria:-

(a) appointments of the rank of professorships made on a permanent basis shall be tenable until the retiring age of 65;

(b) appointments below the rank of professorships made on permanent basis shall be tenable for three academic years in the first instance, and on confirmation be subject to satisfactory report until the retiring age of 65;

Termination

An appointment may be terminated prior to its normal expiration by resignation in accordance with paragraph 14 or by termination by the University in accordance with paragraph 15. Resignation

(a) An appointment may be resigned by not less than six months’ notice in writing addressed to the Vice-Chancellor, such notice to expire on 30th September in any year. The Vice-Chancellor may, if circumstances justify it, accept shortened notice or a notice to expire on another date.

(b) When resignation takes effect at a time when the full leave earning period of service has not been completed, the entitlement to leave, travelling expenses, and emoluments during the leave period shall be determined in accordance with Chapters IV and X.

Termination by the University

(a) An appointment may be summarily terminated by the University on the following grounds only:-

(i) If the employee in relation to his duties to the University is guilty of misconduct, gross inefficiency, or wilful refusal to fulfill his duties to the University;

(ii) If the employee is convicted of criminal offence involving moral turpitude;

(iii) If the employee becomes incapable by reason of general inefficiency and any infirmity of mind or body, of rendering further efficient service to the University.

(b) An appointment shall not be terminated until:-

(i) the employee has been notified in writing of the grounds on which consideration is being given to the termination of his appointment;

(ii) the employee has had an opportunity of replying to the grounds alleged against him, and of appearing in person at a meeting of the Provisional Council at which the termination of his appointment is to be considered.

(c) Where an appointment, may be terminated in accordance with paragraph 15(a)(iii), the Provisional Council, in lieu of termination may in its discretion, permit the employee to resign his appointment in accordance with paragraph 14.

I should consider it unequivocal and contrary to the provisions in paragraph 6 of the Memorandum of Appointment and was so argued that 2nd respondent was not entitled to terminate the appellants’ appointment without cause or on giving them 6 months notice in writing or tendering 6 months’ salary in lieu of notice. Paragraph 13 of the Rules enables an employee to terminate his appointment on giving not less than six months’ notice in writing addressed to the Vice-Chancellor expiring on the 30th September in any year. The Vice-Chancellor is given the discretion to accept resignation on a shorter notice or on a date different from 30th September. It however seems clear on even a cursory reading of paragraph 13 that the ONLY, I repeat ONLY terms on which the 2nd respondent can terminate the employment of appellants are those prescribed in paragraph 15(a)(i)(ii)(iii), and after satisfying the conditions stipulated in 15(b)(i)(ii).

This interpretation is express from the words of paragraph 13 which states that an appointment may be terminated prior to its normal expiration….. “by the University in accordance with paragraph 15.” Paragraph 15 states “(a) An appointment may be summarily terminated by the University on the following grounds ONLY” (capitals are mine). It seems to me therefore unarguable, that, having bound itself to terminate the appointment of a servant under prescribed conditions and circumstances, the University is bound to comply with the provisions so prescribed.

Thus whatever it has been allowed under para. 6 of the Memorandum of Appointment has been unequivocally and impliedly removed by the provisions in paragraph 15 of the Regulations. The University of Lagos, i.e. the 1st respondent is a creature of statute and is empowered under sections 12, 13 of the University of Lagos Act 1967, to enter into contracts; employ both academic and administrative staff. The Council is also empowered by s.13(2) of the 1962 Act to draw up terms and conditions of service. Thus the terms of contract were made under its enabling powers. The Regulations were made under powers vested in the Council by s.13(2) of the 1962 Act – See Malloch v Aberdeen Corporation (1971) 2 All E.R. 1278, contra Vidyodaya University v Silva (1965) I WLR 77. Now then, what is the scope of the contract between Appellants and Respondents It is admittedly a contract of service, determinable by the appellants on giving 6 months notice expiring on the 30th September, or what shorter notice or date as the Vice-Chancellor deems fit to accept. On the other hand, the University can only terminate the appointment of the employee who is guilty of misconduct, gross inefficiency or dereliction of duty, or if he is convicted of a criminal offence, or if he is incapable by reason of general inefficiency and any infirmity in mind or body of rendering useful service. In sum the grounds stated encompass both conviction for crime, inefficiency, misconduct and inability to discharge duties.

This provision has been re-enforced by section 17 of the University of Lagos Decree which provides for the procedure to be complied with respect to the removal of a person on grounds similar to the provisions of paragraph 15(b) of the Regulations which is less elaborate. Section 17(1) provides as follows:-

“17(1) If it appears to the council that there are reasons for believing that the Vice-Chancellor, the Deputy Vice-Chancellor; the provost of a college or any other person employed as a member of the academic or administrative staff of the University or a College should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall –

(a) give notice of those reasons to the person in question;

(b) make arrangements –

(i) for a joint committee of the council and the senate to investigate the matter, where it relates to the Vice Chancellor, the Provost; of a college, or the registrar, and to report on it to the council; or

(ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and

(c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council.”

Section 17(1)(ii) provides with respect to allegations of misconduct or inability to perform the functions of office against appellants, for the appointment of a committee of the senate to investigate the matter and report to senate and council. The person concerned shall be afforded an opportunity of appearing before and being heard by the Committee. I should therefore consider it correct to state that not only that the University cannot remove any of the appellants on grounds other than those prescribed in paragraph of the Regulations, it must also comply with the provisions of section 17 of the University of Lagos Act 1967. This is because the terms and conditions of the contract of service are those enabled by statute and founded entirely on the University of Lagos Act. The terms and conditions are given binding force by the statute – See Pyx Granite Co. v. Ministry of Housing (1959) 3 All E.R. 1 at p. 9. Concisely it cannot be too emphatically stated that the respondent can only terminate for cause. I now turn to a consideration of this case in the courts below. After due hearing on the evidence, the learned trial Judge found that the plaintiffs were found guilty of misconduct by the Visitation Panel, and were being removed on account of that finding. He also held that the misconduct was on congnisant under s.17 of the University of Lagos Act, 1967. It was also held that each of the plaintiffs held a legal status beyond that of an ordinary master and servant, consequently the termination of their employment would not be governed by the common law, held as follows –

“The plaintiffs who are holders of public office with legal status in the established pensionable cadre of the public service of the Federation are entitled to remain in office until properly removed in accordance with the procedure applicable to their removal in the Regulations which apply to them… In the result the plaintiffs’ claims succeed and I hereby grant the following reliefs in the indorsement in their respective Amended Statements of Claim namely:

“1 Declaration that –

(a) the 1st, 2nd and 3rd plaintiffs are still

(i) Professor of Zoology

(ii) Professor of Law and Dean of the Faculty of Law

(iii) Deputy Vice-Chancellor and Professor of Educational Psychology

respectively in the University of Lagos.

(b) the purported termination of the appointment of each of A the plaintiffs as contained in the letter REG/23A of 30th December, 1980 is ultra vires of the defendants contrary to the provisions of section 17 of the University of Lagos Act 1967 as amended.

The defendants, their servants and or agents are hereby restrained from preventing any of the plaintiffs from performing any of the functions and duties of his office or offices or interfering with the enjoyment of the rights, privileges and benefits attached to his office or offices.
The defendants are hereby ordered to restore each of the plaintiffs to his post and office or offices and to all rights and privileges attached thereto.

The declarations and orders made in this judgment had the effect not only of declaring ultra vires and void, the dismissal of the plaintiffs, it also reinstated plaintiffs to their positions, rights and privileges.

The defendants appealed against the judgment of the learned judge of the Court of Appeal, Lagos Division, alleging three grounds of errors in law and misdirections. Allowing the appeal and reversing the judgment of the learned judge, the Court of Appeal, without disturbing the findings of fact of the learned judge held that the contracts of the Plaintiffs/Appellants were validly determined. The Court of Appeal held that defendants had a discretion to consider certain misconducts as trivial and others as serious. The former it argued did not come under the purview of the statute, whereas the latter did. Consequently, the termination of the appointment of plaintiffs in this case was ultra vires. It was finally admitted that appellants were holders of public office, but held that the cases of Shitta-Bey v. Federal Civil Service Commission (1931) 1 Sc. 40; Ridge v. Baldwin (1964) AC. 40 were not applicable. The orders made by the learned judge were set aside, and a judgment dismissing the suits was substituted.

In this Court six grounds of appeal were filed. Both appellants and respondents filed briefs of argument closely reasoned and aggressively contesting each ground of appeal. Their oral elaborations of the briefs of argument have been also argued with considerable dexterity and ingenuity. It is pertinent to observe that the six grounds of appeal filed in reality deal only with the consideration of the construction of section 17 of the University of Lagos Act 1967 by the Court of Appeal, and the exercise of the right of the defendants to terminate the appointment of appellants.

In formulating the issues for determination based on the grounds of appeal and the judgment, counsel for the appellant and respondent have raised identical issues except in one case, namely the issue of specific performance of a contract of service. The three main issues raised by counsel for the appellants are namely,

Whether a statutory body with powers to act in certain eventualities, can exercise a discretion whether or not to obey the provisions of the statute in particular cases.
Whether the Court of Appeal, having accepted that the contract of employment in issue was one regulated by statute, and that appellants were holders of a public office, was right in holding that the instant appeal was different from Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC. 40 and the House of Lords decision in Ridge v. Baldwin (1963) 2 All E. R. 66 and Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278.
Whether the fact that section 17 of the University of Lagos Act did not expressly state that the contractual terms as to termination shall not apply mean that the contractual basis to termination could be applied without observing the provisions of section 17.

Although differently formulated and in one case raising quite a different issue, counsel for the respondents’ formulation is as follows:-

Whether the provision contained in the Agreement between the University and each appellant whereby the employment of each appellant is terminable by notice is inconsistent with or superseded by the provisions of Section 17 of the University of Lagos Act.
If the answer to Question 1 is in the negative, whether the provision contained in the Agreement aforesaid enables the University to terminate the employment of each appellant.
Would it make any difference to the answer to Question 2 if ccount is taken of the finding of the High Court that the termination of the employment of each appellant by notice in accordance with the Agreement was motivated or inspired by the contents of the Report of the Visitation Panel and the comments of the Visitor thereon.
Whether this is the type of case in which the Court would decree specific performance of the contract of service or order the reinstatement of the employee.

Notwithstanding the prolixity in the formulation of these issues, I think the grounds of appeal can be covered adequately under the penumbra of the issues which I have already earlier formulated. These are

Whether the appointment of appellants as employees in the 1st respondent University were validly terminated by the 2nd defendant
If the answer to (1) is in the negative. Are the appellants merely entitled to damages for wrongful dismissal or to reinstatement as the learned judge had ordered

I think it is both convenient to discuss first the question where the purported termination of the appointment of the appellants by 2nd respondent is valid.

Termination of the Appointments of Appellants

In stating the salient facts of this appeal, it has been shown that appellants are Professors of the 1st respondent, appointed by the 2nd respondent. The contract of service is governed by Memorandum of Appointment and Regulations for service made under enabling provisions of the University of Lagos Act. The Memorandum of Agreement is a contract between appellants individually and 1st respondent and the Regulations govern the conditions of service. There is therefore no doubt and this is not disputed, that there is as between appellants and the 1st respondent, in existence at all times a relationship of Employer and Employee or in the language of the common law, Master and Servant. The powers to enter into contract is vested in the respondents by statute; and in this case sections 12, 13 of the Act of 1962 in respect of the 1st appellant, and section 4 of the Act of 1967 in respect of the 2nd and 3rd appellants. I have already reproduced the relevant paragraphs of the Memorandum of Appointment of the appellants. I have also reproduced the relevant paragraphs of the Regulations applicable to the appellants. It seems obvious to me that for a proper understanding of the provisions governing the appointment of the appellants, it will be necessary to read the Memorandum of Appointment and the Regulations together with the relevant provisions of the University of Lagos Act. It is well settled that where an agreement is confirmed or re-enforced by statute, it thereafter becomes binding as a statutory provision. See Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278; Shitta-Bey v. Federal Civil Service Commission (1931) 1 SC. 40.

In Pyx Granite Co. v. Ministry of Housing (1959) 3 All E.R. 1 at p. 23 where the heads of agreement by virtue of an express provision were made part of the Malvern Hills Act, the argument that any authorisation given was not given by the Act, but merely vested in contract, was rejected. The heads of agreement enjoyed the status of a statutory provision. So in the instant appeal, the Regulation which were expressly authorised under s.13 of the Act of 1962 enjoys the status of a statutory provision.

It is a well established principle of law which requires no citation of cases, that 3 master is at common law entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all. This principle has dominated judicial decisions to such an extent that it was applied unreflectingly to cases where the right to dismiss at will ought to be rejected. In Oki v. Taylor Wall Tanjon (Nig.) Ltd. (1965) 2 All NLR. 45. Plaintiff was suspended for misconduct and subsequently offered to be paid his salary up to a certain date and at the same time after recovering their keys. Banned him from their office and premises. He brought an action claiming damages and salary, leave pay due in lieu of leave period. The defence was that defendants were fully justified in dismissing him in view of his misconduct inefficiency and fraudulent practices. Ikpeazu, J., said, at p. 49,

An employer has an undisputed right to dismiss or discharge his servant. If this right was invalidly exercised the action is to be founded on damages for wrongful dismissal.”

Contracts of employment like all other contracts their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated. The letters of termination of appointment of appellants have already been reproduced in this judgment.

Appellants have consistently contended that since in essence they were being removed for misconduct notwithstanding that the letters of termination did not so disclose, respondents were bound to comply with the procedure laid down in section 17. Respondents conceding that they have not followed the procedure required by S.17, contend nevertheless that there is nothing in section 17 which precludes putting an end to the contract in the manner prescribed under the Memorandum of Appointment. They however concede that if the provisions of section 17 of the Act of 1967 is considered applicable to this case, their act would be invalid. It is obvious that the contention of the respondents is that they are entitled to terminate the appellants’ appointment for no cause whatsoever, or for cause under the terms of the Memorandum of Appointment. Furthermore, they can remove appellants for misconduct under the provisions of s.17 of the Act. In effect respondents have a discretion which right to exercise. In any event it was submitted appellants here were not being terminated on grounds of misconduct, accordingly the statutory requirement did not apply. Chief Williams, S.A.N. confidently submitted that a statute should be construed unless so provided not to remove the rights exercisable at common law. The contention of respondents is somewhat difficult to comprehend in view of the accepted applicable law. It is accepted the appointments under consideration are governed by the Memorandum of Appointment and Regulations governing conditions of service. Appellants are by the provisions on a permanent appointment until the retiring age of 65, subject to their performing their duties to the satisfaction of the respondents. – See Salt v. Power Plant Co. (1936) 3 All E.R. 322 and para. 7, 13, 15 of the Regulations. Accordingly the condition will only cease to apply where the employer is able to show that the employee has failed to perform his duties satisfactorily. In this regard there appears to be an inconsistency between paragraph 6 of the Memorandum of Appointment, and paragraph 7(a), 15 of the Regulations. In my opinion, reading the two provisions together in the light of the provisions of section 17, and following the rule that where two provisions one to the other are repugnant, the last should prevail. See Berry v. City of Forth Worth 110 SW. 2d. 95, 103; Kutner v. Phillips (1891) 2 Q.B. 267; Wood v. Riley (1867) L.R. 3 C.P. 26 at p. 27, Keating J. In Gunton v. Richmond-Upon-Thames London Borough Council (1981) Ac. 443, the Regulations which prescribed the procedure for dismissal of plaintiff on disciplinary grounds were subsequent to his appointment adopted by Council and incorporated as part of plaintiff’s contract. The Council purported to dismiss plaintiff without complying with the procedure. It was held that he could not lawfully be dismissed without compliance with the procedure. See Gunton v. Richmond-Upon-Thames London Borough Council (supra). I regard the provisions of paragraphs 7(a) and 15 of the Regulations-as the latter, and which in this case ought to prevail. The Regulations are therefore incorporated and form part of the conditions of service. This is re-enforced by the view that the Regulations are referred to in the letter forwarding the Memorandum of Appointment, as binding and alterable from time to time, without adversely affecting the appointee. I take it therefore that the tenure of appellants’ appointment can only be found in the Regulations aforesaid. The inconsistency between paragraph 6 of the Memorandum of Appointment and paragraphs 7(a) and 15 of the Regulations clearly abrogates the provisions in the former whereby it appeared that there was a mutuality of termination of appointment between Appellant and Respondents. See Kutner v. Phillips (1891) 2 QB. 267. The contract between the parties as I understand it, contains no reciprocity or mutuality or notice to terminate. Appellants are in accordance with para. 14 of the Regulations entitled to give 6 months to terminate their appointment. Respondents are not vested with any corresponding right. Respondents are bound by the provisions of the contract to terminate appellants’ appointment only for cause as laid down in paragraph 15 of the Regulations. I therefore entirely agree with the submission of counsel for respondents, that motive for exercising a right does not render the valid exercise of such right ineffective. The cases of Taiwo v. Kingsway Stores Ltd. 19 NLR. 122, and Chapman v. Honig (1963) 2 Q.B. 502 cited in support are apposite. The instant case seems to me entirely different. The question of motive does not arise here. In this case 2nd respondent was purporting to exercise a power which it does not have; namely to terminate the appointments of appellant without cause and without hearing. They have therefore acted outside the provisions of the enabling statute, and the exercise of such powers are ultra vires, void and ineffective. See Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1273; Barber v. Manchester Regional Hospital Board & Anor. (1958) 1 All E.R. 322. Counsel for the appellants has submitted, and this has been supported by the clear finding of the learned judge and accepted by the Court of Appeal that the appointments of appellants were terminated by the 2nd respondent on the grounds of misconduct found against them by the Visitation Panel. The learned judge held,

“That the recommendations of the Visitation Panel contained in paragraphs 7.4, 7.5, 7.6 and 7.8 of Exhibit “PGA” levelled certain acts against the plaintiffs, the said acts, in my view, amount to misconduct within the meaning ascribed to “misconduct” quoted above and therefore cognisable as such under section 17 of the University of Lagos Act 1967, and Clause 7 of the Memorandum of Appointment of each plaintiff.”

The learned judge also held that the termination of the appointments of appellants was in consequence of the Report of the Visitation Panel and in compliance with the Visitor’s views of the Report. This is clearly lifted from the minutes of the meeting of Council on the 29th December, 1980. There, in discussion on the Visitor’s comments the chairman said,

“The job of Council is to invite those concerned to withdraw their services and when we have done that, as free citizens of this country, they may not comply but we would have been seen to have obeyed the Visitor’s instructions. If by 31st December, they have not withdrawn their services, the Visitor may decide to remove them and that is when s. 17 may come into play. The Council is not removing them; we are inviting them to voluntarily withdraw their services.”

That the Court of Appeal also endorsed the holding of the trial judge that appellants were being removed on grounds of misconduct is obvious when the learned President classified “‘misconduct” into serious accusation, for which section 17 applies and minor shortcoming where it is inapplicable. The learned President said, referring to section 17,

“The subsection has vested in the University Council the power to take the preliminary decision whether any officer should be removed if the misconduct alleged against him is proved. In other words, the University may be in possession of an information of misconduct against an officer but may decide that it has no intention of removing him on the alleged grounds of misconduct even if proved. The University Council may decide as was the provision in Regulation 15 (c) of the Regulations Governing Service in the University of Lagos.” (Exhibit P 3).11 is easy to see the wisdom of this particular provision. The word “misconduct” is such a loose term and had been defined so as to include very minor shortcomings upon which the professional future of an academician should not be sacrificed even though the said shortcoming may make it undesirable to keep the academician in the service of the University. Such matters as “absence without leave for two nights,” “failure to appear to answer questions” etc. have all been defined as, misconduct. Should a Professor be subjected to an inquiry in such case at public expense Who, in any event, should be called upon to initiate this type of inquiry Issues may arise in respect of human relationship between staff of the University as, indeed had arisen in this case. I am convinced and satisfied that section 17 of the Act of 1967 is intended to come into operation only when there is serious accusation against an officer as will, in the event of its being proved, justify dismissal with loss of benefits. All other cases in my opinion must be dealt with under normal law of contract of service.”

Regulation 15 has not in any way suggested a classification into serious accusations and minor shortcomings which the learned President had done. Indeed it has not left the Council with any discretion as to the procedure to be adopted in establishing misconduct. The only discretion is contained in Regulation 15(a) which strictly speaking is not a case of misconduct. It is under 15(a)(iii) where an employee is to be terminated on grounds of general inefficiency and infirmity in mind or body, he could in lieu, be allowed to resign his appointment in accordance with paragraph 14. I have not been able to discover in the applicable laws any procedure available to the 2nd respondent with respect to the termination of the appointment of appellants, other than that in section 17 of the Act.

I think the learned President of the Court of Appeal stated the law correctly when he declared,

“In my opinion any public body charged with the power to employ staff must act within the statute creating it and within all other statutory provisions governing its procedure for employment dismissal or termination of staff under the contract of service. This procedure may be in respect of dismissal of the staff or termination of the staff.”

The decided cases have not been entirely uniform on the principle that a public institution is entitled to determine the contract of service of its employees without cause. There are the cases where the contract of service is classified as merely one of master and servant. See Francis v. Municipal Councilors of Kuala Lumpur (1962) 3 All E.R. 633; Barber v. Manchester Regional Hospital Board & Anor. (1958) 1 WLR. 181. There are the other cases where because of statutory re-enforcement regulating dismissal, the contract of service is regarded as more than one of master and servant. See Malloch v. Aberdeen Corporation (1971) 2 All E. R. 1278; Vine v. National Dock Labour Board (1956) 3 All E.R. 939. Different considerations apply to each class. It is however accepted that whereas it is an exception to have express terms about dismissal in the ordinary case of master and servant, it is the normal in public institutions to have the grounds of dismissal of employees laid down by statute or statutory instruments or in the statutes of a University. In each case the liability of the master, to determine the employment of his servant, depends upon the construction of the particular statute, or statutory instrument. It is important to recognise the distinction between a contract of personal service and a contract of service. There is also the distinction between a contract of service at common law, and a contract with statutory flavour. Whereas at common law a contract of personal service is determinable by the master at will without cause a contract of service is determinable by the master on reasonable notice or on the notice stipulated in the contract of the parties. A strict compliance with the statutory requirements for determination is required in contracts re-enforced by Statute or created by statute.

A discussion of the following decided cases will be helpful in the elucidation of the true nature of the instant appeal, and the distinction adumbrated. In Francis v. Municipal Councillors of Kuala Lumpur (1962) 3 All E.R.”633, distinguishing Vine v. National Dock Labour Board (1956) 3 All E.R. 939, appellant was employed by the Respondent Council in 1953 as a D permanent staff. But by virtue of s.16(5) of the Municipal Ordinance (Extended Application) Ordinance 1948, the President could terminate the appointment. On October 1, appellant was dismissed by the Establishments Committee of the Council after inquiring into allegations against him made by the Council in a letter addressed to him and not by the President as was provided in s.16(5). But the President of the Council subsequently wrote indicating that appellant was of the category of officers which are appointable and dismissable by him without concurrence of Council. Appellant instituted action in the High Court claiming a declaration that the termination of his appointment was ultra vires arid asking to be reinstated. The trial judge dismissed the claim. The Court of Appeal allowed the Appeal on the ground that the dismissal was unlawful. They refused reinstatement but awarded damages. The Privy Council in their judgment held that the dismissal of appellant having not been made by the President in the exercise of his power of dismissal but was by the Council, was irregular. Nevertheless, the Committee held that there was a de facto dismissal of the appellant, and that in all the circumstances he must be treated as having been wrongly dismissed. The Committee cited the dictum of Jenkins L. J. in Vine, v. National Dock Labour Board (1956) 1 All E.R. at p. 8 where he said, at p. 3,

“In the ordinary case of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arises. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be ‘nothing more.”

In Vidyodaya University v. Silva (1965)1 WLR 77 appellant was employed by the respondent University as a Lecturer in Economics and was subsequently appointed a Professor by s.5 of the Act of 1958 the respondent was empowered to institute Professorship and every appointment was to be by agreement in writing between the University and the Professor, and for such period and terms as the Council of the University would resolve.

Section 18(e) of the Act of 1958 empowered the Council of the University to dismiss “any officer or teacher on the grounds of incapacity or conduct which in the opinion of not less than two-thirds of members of the Council renders him unfit to be an officer or teacher of the University.” The Act did not give any right of appeal or right to be heard to the officer affected. The term “teacher” included a professor. In this case appellant did not sign the form of agreement for use on appointment of teachers in the University. On the 4th July, 1961, the Vice-Chancellor wrote to inform appellant that his appointment with the University, has on a unanimous resolution of Council held on that date, terminated from that date. No cause was shown. He was not shown the documents relied upon, and was not given an opportunity to be heard. He sought by certiorari to quash the decision on the ground that the University was bound to act judicially.

The law is well settled that, in an ordinary contractual relationship of master and servant, if the master terminates the contract the servant cannot obtain an order of certiorari. The Judicial Committee of the Privy Council in their judgment said at p. 874,

“In a straight forward case where a master employs a servant the latter is not regarded as the holder of an office and, if the contract is terminated, there are ordinarily no questions affecting status or involving property rights.” It becomes necessary, therefore, to consider whether in the present case there are any features which suggest a relationship other than that of master and servant.”

The Committee referred to the fact that appellant did not sign the form of agreement and that there was not sufficient evidence to enable a determination of the requisite notice. It was also observed that the “definition of an “officer” which is contained in section 61″, does not “necessarily and of itself bring it about that for the purposes now being considered an “officer” is not within the ordinary relationship of master and servant.” The Committee further observed, that, at p. 875

“…. there is no provision in the Act of 1958 giving a right to be heard, nor any provision as to any right of appeal to any other body.”

It was therefore concluded in allowing the appeal that

“The present case is not one, therefore in which there has been a failure to comply with statutory provisions.”

It is important in this case to observe that the Committee said that “a “teacher” who has an appointment with the University is in the ordinary legal sense a servant unless it be that s. 18(e) gives him some altered position ,-

In the view of the Committee

“The circumstance that the University was established by statute and is regulated by the statutory enactments contained in the Act of 1958 does not involve that contracts of employment which are made with teachers and which are subject to the provisions of s. 18(e) are other than contracts of master and servant.”

Section 18(e) is the provision enabling appointment, suspension or dismissal of any officer or teacher on the grounds of incapacity or conduct unfit to be a teacher or officer of the University. It is pertinent to observe, it would seem there was no formal agreement in the nature of Memorandum of Appointment signed between appellant and the University. He was therefore bound to rely on his common law remedy. The University was at common law entitled to dismiss him even without cause. Certiorari will therefore not lie.

It seems apparent from the ratio of this case that appellant was in the absence of the Memorandum of Appointment regarded as in the position of an ordinary servant in a common law contract of master and servant. Bankole v. Nigerian Broadcasting Corporation (1968) 2 All NLR. 372 is a direct case involving the exercise of its powers to dismiss by a Public Corporation. Plaintiff brought an action for declaration against the defendant Corporation that his purported dismissal was illegal and unconstitutional. He also claimed for arrears of salaries and basic allowance due. Plaintiff was an employee of the defendant corporation who was dismissed after investigation by a tribunal set up by the Establishment Committee of the defendant corporation which found him guilty. Plaintiff was not heard in his own defence. The learned judge George J., said at p. 376

“An action for wrongful dismissal, especially one of this nature, is a specie of a breach of contract. This is a common law right and is not based on statute. A master acting within the limits of his authority is entitled to dismiss an employee taking proper care that his action is within the terms of his contract with the employee …..”

However, since the Committee was set up to investigate the wrong doings of the plaintiff, and a tribunal was set up to consider the alleged irregularities, both without notice to the plaintiff, his Lordship regarded the dismissal as wrongful and awarded damages. The above category of cases represent those ordinary cases of master and servant at common law where the master can terminate even if wrongfully and without cause. The only remedy is a claim for damages. There are the other cases which are not mere cases of master and servant, and in which the servant enjoys a statutory protection, and the master’s act results in non-compliance with a mandatory statutory requirement.

In the often cited case of Vine v. National Dock Labour Board (1956) 3 All E.R. 939, the position of the appellant dock worker was consolidated by a statutory provision under the Dock Works (Regulation of Employment) Act 1946 and regulations made thereunder. Under the Dock Workers (Regulation of Employment) Order 1947 CS.R & O. 1947 1189) Dock Workers are in the employment of the National Dock Labour Board. (Sec. CI. 8(2) of the Scheme). This is so even when they are allocated to individual employers. There are therefore statutory limitations as to the powers of their dismissal. Vine failed to report to the stevedoring company to which he was allocated and a complaint was made to the Board. A disciplinary committee appointed by the Board purported to have acted under Cl.16 of the Order and upheld the complaint and gave Vine notice to terminate his appointment with the National Dock Labour Board. His appeal to the tribunal set up under the Scheme was dismissed. He then brought an action in the High Court claiming damages and a declaration that his purported dismissal was ultra vires, illegal and void. It was held that his dismissal was invalid since the Local Dock Labour Board had no powers under the Scheme to delegate their disciplinary powers to a Disciplinary Committee. The decision of the Committee was therefore a nullity. It is important to quote here what Lord Keith said in the House of Lords. He said,

“It is impossible, in my opinion, to equate the position of a registered dockworker in relation to the National Dock Labour Board with that of an employee under an ordinary contract of service…… The scheme gives the dock worker a status. Unless registered he is deprived of the opportunity of carrying on what may have been a lifelong employment as a dock worker, and he has a right and interest to challenge any unlawful act that interfere with this status.”

It is clear that the statutory scheme gave a number of rights and imposed a number of obligations going far beyond any ordinary contract of service. Hence Jenkins, L.J., was able to say in the Court of Appeal,

“In the face of those provisions, to my mind, it becomes plain that no analogy to this case can be found in the case of master and servant.” (1956) 1 All E.R. at p.9.

Salt v. Power Plant Co. (1936) 3 All E.R. 322 was a case where the term of appointment provided that it was to remain in force as a permanent one, subject to the employee continuing to perform his duties to the satisfaction of the directors. It was held that the appointment was to last for life i.e. till retirement and was not subject to termination by notice. It was only determinable if the employee failed to perform his duties to the satisfaction of the directors. There are also Sadler v. Sheffield Corporation (1924) 1 Ch. 489; Martins v. Eccles Corporation (1919) 1 Ch. 387; Hanson v. Radcliffe UDC (1922) 2 Ch. 490 referred to as the School teacher cases are cases where declarations of invalidity of notices of dismissal were granted. Similarly, McClelland v. Northern Ireland General Health Services Board (1957) 2 All E.R. 125 is an appointment tied to the conditions of service, described as the “September Conditions ” Appellant accepted these conditions and was subsequently confirmed in her appointment. Under clause 9 of the “September Conditions” every employee was required to take the oath of allegiance, and failure to do so involved the penalty of immediate dismissal. Clause 12, empowered the Board to dismiss for gross misconduct, inefficiency and unfitness. With the exception of gross misconduct, the Board is required to give one month’s notice before exercising the power of dismissal. On the other hand all permanent officers are entitled to give one month’s notice in writing of intention to terminate appellant’s employment on the ground of redundancy of staff by giving her six months’ notice. Appellant contended that her employment was not one subject to termination by the Board on notice. In the Chancery Division, Curran, J. gave judgment in favour of the Board on the ground the appellant was a civil servant who held office at the pleasure of the Crown and that her dismissal was accordingly valid. Her appeal to the Court of Appeal was dismissed… Lord MacDermott, C.J.; Black L.J. and Porter L.J. dissenting. The majority were of the view that the case rested on the “September Conditions” entirely. And that since Clause 12 did not preclude the Board from terminating the employment of a permanent by reasonable notice, and that such right was not taken away, the termination was valid.

In the House of Lords, Lords Oaksey, Goddard and Evershed L.JJ., Keith and Tucker, L.JJ. dissenting reversed the Court of Appeal. It was held that the “September Conditions” were exhaustive with respect to the conditions prescribed; accordingly a power to terminate by reasonable notice not within the purview of the conditions would not be implied. Appellant’s employment had not therefore been validly terminated by the Board. In construing clause 12 as comprehensive, Goddard, L.J. said at p. 134

“It provides, no doubt, unnecessarily, for dismissal without notice for gross misconduct but also for the length of notice to be given in a case of inefficiency and for the notice the officer may give to terminate his employment. If it was intended the Board should have a similar right to determine the engagement, it is strange that it does not provide what notice is to be given and this omission seems to me the more significant when it is remembered that the conditions apply to officers of various degrees or standing and varying rates of salary.”

Considering the inequities of the contrary suggestion, Lord Oaksey said at p.132,

“With the greatest respect to the Court of Appeal in Northern Ireland and those of your Lordships who take a different view I think, on the contrary, that to offer an officer a permanent and pensionable post on such terms and then to claim the right to give him notice which will deprive him of all the pension and other rights offered by the express terms of the contract not only is not a right which the parties must have intended the master to but one which a reasonable person could have contemplated he would claim.”

This is undoubtedly a realistic approach to the problems of public employment, and travels far towards reversing the anachronistic and somewhat illogical common law position. In public employment where the employee is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should in the interest of justice, be a presumption that the employment cannot be terminated by mere notice, but should be terminable only for misconduct or other specified reasons.

I now consider the case of Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278. One of the points considered there and which is relevant in the instant appeal is the status of teachers in Scotland. This is because this case resulted from the dismissal of appellant who at the time was a teacher employed by the Scottish Education Ministry. It was submitted by the respondent that the status of teachers in Scotland was simply that of an ordinary servant, and that at common law, the master of a servant was not bound to hear him before dismissing him. That even an unreasonable or capricious dismissal of a servant by the master is valid. The only remedy of the servant being that of one of damages for breach of contract. Lord Reid rejected the submission.

It is illuminating to set out the history of the status in the words of the learned Lord Justice. He declared at p. 1232,

“In my opinion, that is not the present status of teachers employed by Scottish Education authorities. There is no doubt that prior to 1872 parish schoolmasters appointed by the heritors held office ad vitam aut culpam. But the Education (Scotland) Act 1872 enacted by s.35 that teachers should in future be appointed by the new school boards “and every appointment shall be during the pleasure of the School Board.” The result was that their status was reduced to that of an ordinary servant. That appears clearly from the opinions in Morrison v. Abernethig School Board (1876) 3 R. 945. But soon Parliament began to have second thoughts. In the Public Schools (Scotland) Teachers Act, 1872, certificated teachers are said to “hold office” under school boards and their dismissal without “due deliberation is forbidden. In particular it is enacted that no dismissal shall be valid unless three weeks of a notice of a meeting to consider a motion for dismissal is given both to every member of the board and to the teacher.”

It is therefore clear from this statutory requirement that there is provision for a teacher to be heard before his dismissal. Consequently, any purported dismissal in breach of the statutory provision would be ineffective. As Lord Reid stated at p. 1234 “The result would be to hold that the appellants contract of employment had never been terminated ” “and concluded that”….But in my view if an employer fails to take the preliminary steps which the law regards as essential he has no power to dismiss and any purported dismissal is a nullity.” Our own case of B.A. Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC. 40, where similar authoritative statements were made is strictly an action for an order for mandamus to compel the respondent to give effect to a declaratory judgment. Plaintiff against the respondents as defendants had asked for a declaration that

(a) his suspension from duty without pay by the defendants was irregular, null and void.

(b) that his purported retirement from the Civil Service is also irregular; null and void.

He got judgment in terms of his writ. The defendants did not appeal against this judgment and did not honour it. After several letters seeking clarification from the Federal Ministry of Justice from where he was purportedly retired, and having not received a positive response, he brought this present action seeking a mandamus to compel the respondents to give effect to the judgment of Bada. J. delivered in Suit No. LD/37/76 on the 23rd December, 1977. Both the High Court and the Court of Appeal dismissed the application mainly on the ground that the effect would be to restore appellant to the status and duties from which he has been relieved. It would appear that the fact that the dismissal was itself invalid and ineffective did not occur to the Court. The Chief Judge was caught by the traditional reluctance enunciated in the well settled principle of common law to force a master to accept the services of a servant which he has determined even unlawfully. The Court of Appeal held the same view. In the Supreme Court, Idighe. J.S.C. rejected this view. He argued quite convincingly that public servants in this country are invested with legal status by the provisions of the Civil Service Rules and that they can only be properly or legally removed as provided by these rules. (see page 58). Especially he pointed out that…..

“….the principle of law which precludes mandamus from issuing against the Crown has historical justification in English legal history and in my view, there is no basis for its application in this country (a Republic) in respect of the respondent who, being a creature of statute, can sue and can be sued, their being no provision to the contrary, express or implied, in any enactment in our statute books.”

After discussing several cases in a judgment replete with erudition and wisdom, his Lordship allowed the appeal and reversed the judgment dismissing the application for mandamus. The appellant was ordered to be reinstated on or before the 16th day of February, 1981.

In this appeal as in the others discussed the basis of the decision in the invalid and ineffective action of the master purporting to dismiss a servant from his employment without complying with statutory provisions governing such dismissal.

I have in the cases discussed under this head to consider the first group of cases which support the proposition that a master can validly dismiss his servant for cause in accordance with the terms of his contract, or without cause on reasonable notice given at common law. In the second group of cases we have endeavoured to show that with respect to dismissal from an office, or as we have described contract of service re-enforced or governed by statute, non-compliance with the relevant provisions of the statute will result in an ineffective exercise of the powers to terminate. For the purposes of this distinction, it is necessary to consider a valid act which results in a wrongful dismissal, essentially because this is the result of a unilateral act. There is also a wrongful act which arises from non-compliance of an otherwise enabling statutory provision. This last mentioned case is erroneously described as a wrongful dismissal. This is because the non-compliance having not effected any change, the act being invalid at all times. There was no dismissal at all wrongful or otherwise. Lord Reid has expressed it succinctly in Ridge v. Baldwin (1963) 2 All E.R. at p. 71 as follows:-

“So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.”

Applying the law to the facts of this case as found by the courts below and admitted by the parties, it is clear that appellants, being professors in the 1st respondent University, are employees of the 1st respondent. It is admitted that appellants have each signed a Memorandum of Appointment containing some of the terms and conditions of their appointment. They are also bound by the Regulations Governing Conditions of Service in the 1st respondent University and especially paragraphs 7, 13, 14 and 15 thereof. Finally, the procedure for determining their employments has been provided in s. 17 of the Act of 1967. I have stated that the only conditions for terminating the employment of appellants are those stipulated in paragraph 15 of the Regulations. 2nd respondent has purported to terminate the employment of appellants by the living notice. This is not one of the conditions prescribed for termination of employment in the Regulations. Thus even if, it is, for purposes of argument, conceded that the respondents were not exercising a right to terminate the appellants’ employment on grounds of misconduct, they have exercised a power to terminate which is no where in the Contract and Regulations vested in them. This is clearly ineffective, ultra vires and invalid, since no such-powers exist.

All the appellants hold permanent and pensionable employment. As was pointed out by Lord Oaksey in McClelland v. Northern Ireland General Health Services Board (supra), to terminate by notice the employment of an employee on a permanent and pensionable status and to deprive him of all the pension and other rights offered by the express terms of the contract, “is not a right which the parties must have intended the master to have but one which no reasonable person could have contemplated he would claim.” It cannot be within the contemplation of appellants who have a permanent and pensionable employment that the respondent can have any power to terminate their employment without cause, I agree entirely with the submission of Mr. Ajayi for the appellants that the letter written to appellants by the 2nd respondent purporting to terminate their employment in the 1st Respondent University is ultra vires, null and void and of no effect.

Whether Appellant can be Reinstated:

As a corollary to the answer to the first question that the action of the respondents in purported termination of the employment of the appellants is the second issue for determination, whether they can be reinstated to their employment. Logically and juridically there seems to be no basis for doubting the validity of the proposition that reinstatement is the correct remedy for an ineffective and invalid exercise of a power to dismiss.

This is because the appointment having not been validly terminated, the position remained unaltered by the ineffective’ purported exercise of the right to dismiss. Mr. G.O.K. Ajayi, S.A.N., for the appellants, relying on the cases of Ridge v. Baldwin (supra); Vine v. National Dock Labour Board (supra); Malloch v. Aberdeen Corporation (supra); and Shitta-Bey v. Federal Civil Service Commission (supra) has submitted that the issue of the power to order reinstatement for wrongful dismissal has been settled beyond controversy.

In his view this was accepted by the Court of Appeal and that that Court decided against appellant because it held that the misconduct in respect of which appellants’ employment was terminated did not fall within the provisions of section 17. Chief Williams, S.A.N. relying on his submission that section 17 did not apply, submitted that appellants’ employment was terminated by virtue of the common right of respondent to do so. Consequently the remedy of appellants lay in damages and not reinstatement. Learned Senior Counsel then referred to the contention that appellants were holders of public offices and submitted that a member of the academic staff of the University is not a holder of a public office on the definition of “public officer” in section 277 of the Constitution 1979.

The traditional common law rule which has been followed invariably in cases involving wrongful dismissal from employment is to refuse re-instatement to the employee so dismissed. There has been a reluctance to distinguish between the obvious cases of contracts of personal service, and the ordinary or of contract of service. In Rigby v. Connol (1880) 14 Ch. D. 482 at p. 487, Jessel M.R. said,

“The Courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreement of hiring and service, being the common relation of master and servant, or whether they are agreement for the purpose of pleasure, or for the purpose of scientific pursuits, or for the purpose of charity or philanthropy.

The reasons given usually are those of the impossibility of compelling an unwilling party to maintain continuous personal relation with another, or where there is invariably a confidential relationship which it is in the ordinary course of affairs undesirable to continue. The difficulty of constant superintendence of the Court’s order is also one of the reasons. It is however not strictly accurate to say that the Courts never decrees specific performance in respect of contracts savouring of a personal nature. In Wolverhampton Corporation v. Emmons (1901) AC. 515, specific performance of a building contract was decreed because it was considered the damages cannot be adequately compensated in terms of money. It is hardly necessary to point out that the reluctance to make the distinction between contracts of personal service, and contracts of service is derived from the social conditions of feudal England which gave rise to the formulation of the principle of common law. Strictly speaking it should not be applicable in this country where the social conditions are not identical. It is not disputed that in the usual cases of personal and domestic service it is not a wise policy. The desirability is suspect in contracts of service devoid of strict personal service element. Hence its application in Francis v. Municipal Councillors of Kuala Lumpur (1962) 3 All E. R. 636 seems to me clearly inappropriate. In Decro-Wall International S.A. v. International Practitioners in Marketing Ltd. (1971) 2 All E.R. 216, it was doubted whether specific performance was desirable, and finally admitted it was possible. It cannot now be disputed that there are contracts of service, which are not contracts of personal service, and in respect of which sentimental reasons of personal relationship do not apply. For instance, the contract of service in the Civil Service and Statutory Corporations, though creating a relationship of Master and Servant, the personal relations in respect of domestic servants contemplated at common law, do not exist. In Shitta-Bey v. Federal Civil Service Commission (supra) at p. 56, Idigbe, J.S.C. puts the status beyond doubt when he observed, referring to the Civil Service Rules,

“These Rules, therefore, in my view, have constitutional force and they invest the Public Servant over whom they prevail, a legal status; a status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship.

Similarly in Ridge v. Baldwin (1963) 2 All E.R. 66 at p.71, considering the status of the Chief Constable it was observed that the case against him was not in the class of the ordinary master and servant cases and said,

“But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed anyone else.”

It is therefore now accepted law that where the contract of service and Regulations governing discipline and dismissal impose statutory provisions invest the employee with a legal status higher than the ordinary one of Master and Servant. This was the reason why in McClelland v. Northern Ireland General Health Services Board (supra); Vine v. National Dock Labour Board (supra); Ridge v. Baldwin (supra); Shitta-Bey v. Federal Civil Service Commission (supra), the employees in these cases were accorded a status higher than that of the ordinary servant.

In each of these cases, it seems obvious that the ineffectiveness and invalidity of the act of the master lay essentially in the violation and noncompliance with a statutory provision which is a pre-condition to the exercise of a valid act. Hence, in all the cast’s, the acts were declared invalid. In Hill v. CA. Persons & Co. Ltd. (1971) 3 All E.R. 1345, Plaintiff, 63, an Engineer who had been in the employment of the defendants for 35 years, and was due to retire at 65, was terminated by defendants because he refused to join a Trade Union, namely the Draughtsmen and Allied Technical Association (DATA). DATA is an association formed by professionals inferior to plaintiff and his other colleagues numbering 37. Under considerable pressure by DATA that all employees of the defendant must be members of DATA; the defendants required plaintiff to join. On March, 1970, DATA called out their members on strike to support the demand. The dispute was settled by agreement between DATA and the Defendants in May, 1970 that all its employees including professional engineers were to join DATA within twelve months of the date of the agreement. Plaintiff did not comply. On 19th May, 1971, the defendants wrote to him referring to the Agreement with DATA and notifying him of the change in the conditions of employment, and requiring him formally as a condition of employment to join DATA within one month. Plaintiff refused to join. Or. 30th July, the defendants wrote purporting to terminate his employment on the 31st August. Plaintiff refused to accept the notice and issued a writ against the defendants for wrongful dismissal, and interim injunction restraining the defendants from treating the notice as having determined his employment. The Court of Appeal agreed with the High Court, and held that the notice of termination was invalid, being far too short for a professional man of plaintiffs standing. Denning, L.J. then said, at p. 1349,

It seems to me that if a master serves on his servant a notice to terminate his service, and that notice is too short because it is not in accordance with the contract, then it is not in law effective to terminate the contract – unless of course the servant accepts it. It is no more effective than an invalid notice to quit.”

This view is clearly opposed to that of Viscount Kilmuir in Vine v. National Dock Labour Board (supra) where the view expressed was that in the ordinary case of master and servant.

“…if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract.”

In Francis v. Municipal Council of Kuala Lumpur, (supra) a modified view was adopted; giving glimpses of the possibility of the rejection of the common law rule. In that case Lord Harris of Borth-y-Guest said:

“…. when there has been a purported termination of a contract of service a declaration to that effect that the contract of service still subsists will rarely be made.”…….and that in special circumstances it may be made.”

The principle is not that the declaration cannot or will not be made. It is that in special circumstances it may be made. It is for those and other reasons that Denning, L.J. was able to say in Hill v. CA. Parson & Co. Ltd. (supra), the rule is not inflexible and that it permits of exceptions. He held that in a proper case, the Court can grant a declaration that the relationship still subsists and an injunction to stop the master treating it as an end. He concluded,

“It may be said that, by granting an injunction in such a case, the Court is indirectly enforcing specifically a contract for personal services. So be it. Lord St. Leonards did something like that in Lumley v. Wagner. And I see no reason why we should not do it here.”

The injunction was granted and the case constituted an exception. It is well settled that a unilateral repudiation of a contract of employment does not per se determine the existence of the relationship of master and servant. See Denmark Productions Ltd. v. Boscobol Productions Ltd. (1968) 3 All E.R. 513. The unilateral repudiation results in a wrongful dismissal in respect of which the employee can ask for a declaration of the continuance of the relationship and also specific performance or reinstatement. The dicto in Vine v. National Dock Labour Board (supra); Francis v. Municipal Council of Kuala Lumpur (supra); Hill v. CA. Parsons & Co. Ltd. (supra), are in support of this proposition. The contract of service comes to an end after the unilateral repudiation only if the employee accepts the repudiation expressly or by implication. – See Gunton v. Richmond-upon-Thames London Borough Council (1981) AC. at p. 464 and Decro-Wall International S.A. v. Practitioners in Marketing Ltd. (1971) 1 WLR. at pp. 369-370 per Salmon L. J.

In Howard v. Pickford Tool Co. Ltd. (1951) 1 KB. 417, 421, Asquith, L.J. speaking of the effect of repudiation said,

“An unaccepted repudiation is a thing writ in water and of no value to any body; it confers no legal right of any kind of any sort or kind.”

Also in Heyman v. Darwins Ltd. (1949) AC. 356, 361 Viscount Simon L.C. said,

“But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other.”

The proposition is founded on the elementary principles of the formation and discharge of contractual obligations. Where there is a unilateral repudiation of a contract, this is treated as an offer by the guilty part to the innocent party of the termination of the contract. It is the acceptance of the offer by the innocent party which acts as a discharge of the contract. – See Hochster H v. De La Tour (1853) 2 F& B. 678; Johnstone v. Milling (1886) 16 QBD 460. It is then open to the innocent party to sue only for damages since by his acceptance of the repudiation the contract comes to an end. Hence where the innocent party refuses to accept the repudiation the contract remains in existence. In Gunton’s case, Buckley, L.J. applied these principles which are of general application to contracts of personal service. (See (1981) AC. at p. 468).

I do not take the word reinstatement to be a term of art. – See Hodge v. Ulter-Electric Ltd. (1943) I KB. 462, 466. Its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal.

That is to restore him to his status quo ante. It is therefore retroactive in effect, and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period. – See Morris v. Gestetner (1973) 1 WLR. 1373, 1382. It has been the practice, and the common law view that it is not in the interest of mankind to extend the rule of specific performance to contracts of employment, see De Francesco v. Barnum (1890) 45 Ch. D. 430; a view Professor Kahn Freund described as the result of “the power of a legal shibboleth.” – See “Uses and Misuses of Comparative Law” (1974) 37 MLR. 1, 24. See also Thomson – The Meaning of Dismissal, 39 LQR. 336. There has been a noticeable shift in this view since the nineteenth century, and modern statutory provisions in England has made considerable inroads into that view. For instance, the provisions of s.1(2) of the Contracts of Employment Act 1963 has broken the tradition of reciprocity of obligation. See Hill v. CA. Parsons & Co. Ltd. (supra). Moreover, the fiction that employment is necessarily personal service and involves a confidential relationship is being abandoned. In the United States of America, Meyers, in his valuable book – The Ownership of Jobs at. p.5 tells us that as early as in 1920 American Courts began to issue injunctions to prohibit a collectively agreed obligation to dismiss for good cause only. They had recognised that there was no other adequate remedy. Reinstatement had already been introduced through the medium of collective agreement which could be construed as a waiver of common law rights. In Vitarelli v. Seaton 359 US. 335, the Supreme Court of the United States of America granted a declaration in the case of a civil servant even in a case involving State Security, because the proper procedure was not adopted.

An analysis of the decided cases leads to the conclusions that an action for reinstatement is only possible where there is a unilateral repudiation of the contract of service by the Master (the Employer) which has not been accepted by the (employee) Servant. See Denmark Productions Ltd. v. Bascobol Productions Ltd. (1961) 3 All E.R. 583. In that situation the contract is still in existence having not been discharged by the acceptance of the repudiation. It is therefore not the same as where the contract has been discharged and the dismissed employee is entitled only to damages.

It is clear from the facts which are not disputed in this appeal, that respondents unilaterally repudiated the contract with the appellants in the letter of termination dated 31st December, 1980. They were in my opinion trying to evade or avoid compliance with the conditions in para. 15 and the procedure in s.17(1). Hill v. CA. Parsons & Co. Ltd. (supra) will definitely apply to such a case as this one. Similarly each of the appellants refused to accept the repudiation, and in letter written the same day clearly so stated. – Exh. P. 16, P.19. In their claim they actually asked for a declaration that the contract was still in existence and that they were still occupying their respective positions in the 1st respondent University.

I have no doubts in my mind that this is a situation where it is appropriate for the application of the rule of specific performance. The law has arrived at the stage where the principle should be adopted that the right to a job is analogous to right to property. Accordingly, where a man is entitled to a particular job, I cannot conceive of any juridical or logical reason against the view that where the termination of appointment is invalid and consequently alters nothing as reinstatement of the employee barring legal obstacles intervening between the period of purported dismissal and the date of judgment is the only just remedy. Normally damages are rarely adequate remedies for wrongful dismissal, and where the act relied upon for the dismissal is a contravention of an enabling statutory provision, I have no hesitation in restoring the judgment of the learned trial judge.

I agree with Chief Williams that appellants can only be reinstated to the positions of Professor to which they were appointed and in respect of which there is a Memorandum of Appointment creating a contract between them and the 1st respondent. See Vidyodaya University v. Silva (supra). It does not concern or affect the positions of Dean of the Faculty of Law, or Deputy Vice-Chancellor which the 2nd and 3rd appellants were holding at the time of the dismissal.

Respondents shall pay to appellants costs assessed at N300.00 in this Court and N250 in the Court below.

Appeal Allowed

SC.53/1985

C. I. Olaniyan & Ors. V. University Of Lagos & Anor (1985) LLJR-SC

C. I. Olaniyan & Ors. V. University Of Lagos & Anor (1985)

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