Alphosus Ideh V. University of Ilorin (1994)

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ABDULLAHI, J.C.A. 

The facts of this case are straight forward. The appellant in this case was employed by the respondent as a Technical Officer in its works department, on the 19th of January, 1977. In the course of his employment, the appellant got promotions and he rose to the rank of Principal Technical Officer by August, 1984. The appellant’s appointment was terminated by a letter dated 10/5/87. No reason was given for the termination of the appointment, but the appellant was given one month salary in lieu of notice.

It appeared, the appellant initially accepted the termination of his appointment, because by his letter dated 4/11/85 and another letter dated 20/3/86, the appellant requested the respondents the following:-
(a) Payment of his terminal benefits consequent upon his termination.
(b) Payment of his pension and gratuity.
(c) Approval to pay the balance of his car loan by instalments.
(d) The appellant had taken a new appointment with the Federal Ministry of works.

Somehow, in August 1986, the appellant issued out a writ, suing the respondent before the Kwara State High Court Ilorin.

In a short but succinct statement of claim, the appellant in paragraphs 4 and 5 of the Statement of Claim averred and claimed as follows:-
“4. Contrary to the provisions of the University of Ilorin Decree No.81 of 1979 and the University of Ilorin Regulations Governing the Conditions of Service-Senior staff – the plaintiff’s appointment was terminated without any reason. The plaintiff pleads the documents referred to in this paragraph and shall rely on them.
5. Whereof the plaintiff claims that the purported termination of the plaintiffs appointment is null and void and of no effect whatsoever and pray this Honourable court to order the defendant to pay the plaintiff all his (plaintiff’s) entitlements and to reinstate him (the plaintiff) and for any other relief that justice may demand.”

Pleadings were filed, and exchanged. The matter went to full trial. The appellant gave evidence and tendered some documents and called no other witness. The respondent called one witness and also tendered some documents. After addresses of counsel the learned trial Judge Elelu-Habeeb J. in a considered judgment found as follows:-
“I am therefore of the view in applying the above principle, that the plaintiff’s appointment in the case at hand, with the defendants is governed by the contract which he entered with the defendants at the time of his employment and that is as contained in paragraph 1 of exhibit 1.
His termination therefore complied with the provisions of paragraph 1 of the said exhibit I and it (sic) therefore lawful.
Since the defendant had paid to the plaintiff the requisite one month salary in lieu of notice, there had been no breach of the contract on the part of the defendant.
This action shall therefore fail in its entirety and is hereby dismissed accordingly.”

The appellant was not satisfied with the decision of the trial court. He appealed to this court and filed four grounds of appeal.
The grounds of appeal without their particulars read as follows:-
“1. The decision is against the weight of evidence.
2. The learned trial Judge erred and/or misdirected himself in law in not considering the case for the plaintiff before arriving at his decision.
3. The learned trial Judge erred and/or misdirected himself in law when he based his decision on a fact which was neither pleaded nor testified upon by either party.
4. The learned trial Judge erred and/or misdirected himself in law when he failed to consider the special effect of the University of Ilorin Decree No. 81 of 1979 on the plaintiff’s appointment.”

Both the appellant and the respondent filed their respective briefs of argument. As usual, Prince Ijaodola prepared and filed a brief but cogent brief of argument, whereas I find the brief of the respondent too cumbersome and repetitive. Be that as it may, I shall still consider it and make the best use of what I can use, thus overruling the preliminary objection of Prince Ijaodola that it should be struck out.

The learned counsel to the respondent raised a very lengthy preliminary objections, asking that the two issues formulated by the appellant in his brief be struck out and the whole appeal should also be struck out.

I discover that the preliminary objection has been extensively argued in the respondent’s brief. I shall therefore consider them along with the appeal itself.
Learned counsel for appellant identified two issues for determination of the appeal. They are as follows:-
“1. Was the termination of the plaintiff’s employment by Exhibit 5 valid.
2. Did the plaintiff accept his termination being valid through his conduct as manifested in exhibit D1 – D4.

It can be seen right away, that these two issues have no relationship whatever with ground I of the grounds of appeal, which says that the decision is against the weight of evidence. It is therefore deemed to have been abandoned and it is accordingly struck out.
I struck it out because the Supreme Court in the case of A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646 per Nnaemeka-Agu, J.S.C. at 665 stated that: –
“Where, as has happened in this case a ground of appeal filed is not covered or taken into account by the issue for determination, as framed, the appellate court may rightly take the view that such ground has been abandoned.”
See also Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643 at 664 where Ogundare, J.S.C. adopted the views expressed by Karibi-Whyte, J.S.C. in Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 275 at 283 that:-
“Like pleadings to a litigation between the parties, the issues formulated are intended to accentuate the real issues for determination before the court. The grounds of appeal allege the complaints of errors of law, fact or mixed law and fact against the judgment appealed against. The issues for determination accentuate the issues in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of error alleged.
Hence the issues for determination cannot and should not be at large, but must fall within the purview of the grounds of appeal filed.”

Before I give any consideration to the arguments advanced in the briefs of the parties, it is also pertinent to examine closely the remaining three grounds. Whether they are competent grounds. If they are not competent then the appeal itself is not competent.
All the three grounds of appeal alleged that the learned trial Judge erred and/or misdirected himself in law. In my view this is not a proper way to draft or formulate a ground of appeal.
A ground of appeal should not allege both error of law and a misdirection all at the same time. It is wrong to do that. See Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 4 NWLR (Pt.67) 718 at 744 where Nnaemeka-Agu, J.S.C. stated the law as follows:-
“Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellants grounds clearly postulated. By their very nature one ground of appeal cannot be the two.”
In this case the three grounds postulated by the learned counsel for appellant did not even stop at just combining both error of law and misdirection at the same time, he went a step further to use the word ‘and/or’ making it look like he does not know what he wants, or that he is not clear in his mind what he wants. This approach by learned counsel made the grounds vague in nature. This clearly is in breach of the provisions of order 3 rules 2(2) & (4) of the Court of Appeal Rules.
They state as follows:-
“Order 3.
r.2(2)If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”

In the light of these provisions and the decision in Aideyan’s case (Supra). I am unable to accept these three grounds of appeal as competent grounds.

I cannot in the circumstances consider them and the end result is that I strike them out. The two issues identified for determination based on them also shall go the same way. They have no base to stand.

Let me however for the record correct one or two impressions promoted by both learned counsel for appellant on the one hand and the learned counsel for respondent on the other.

The impression promoted by the learned counsel for appellant is that the mere fact that the employer of the appellant is the creation of a statute then the contract of employment of the appellant automatically enjoy statutory flavour or status. This is not the correct position of the law. The correct position of the law is that the character of an appointment and the status of an employee is determined by the legal character of the contract of employment.

Contracts of employment are by and large determinable by the agreement of the parties simpliciter. The fact that the other contracting party is a creation of a statute does not make any difference. See Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt.291)
47 at 63 where Karibi-Whyte, J.S.C. said:-
“The fact that the respondent is the creation of a statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their employment must necessarily have a statutory flavour.”
This settles the wrong impression advanced by the learned counsel for appellant.
The contract of employment between the appellant and the respondent in this case is a contract of master and servant simpliciter. It was correctly treated as such by the learned trial Judge.

The impression promoted wrongly in my view by the learned counsel for respondent is in relation to the relationship between issues for determination and grounds of appeal. In the respondent’s brief, the learned counsel seemed to be saying that arguments in briefs should not be based on issues, but on grounds of appeal; and that issues for determination not based on pleadings are incompetent.

I think learned counsel got it all wrong. The correct position simply put is that, issues for the determination of appeal are formulated from valid grounds of appeal filed. Grounds of appeal are formulated on the decision of the court being appealed against and decision of a trial court is based on the issues joined by the parties in their pleadings. I think, this will also settle the matter.

Now having regard to the conclusions I reached above, I am clearly of the view that this appeal has no merit and it deserved to be dismissed. It is accordingly dismissed. The judgment of Elelu-Habeeb J. is affirmed. I award N1,000.00 costs to the respondent.

Other Citations: (1994)LCN/0185(CA)