Dr. Ajewumi Bili Raji V University Of Ilorin & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This appeal is against the decision of the Court of Appeal, sitting at Ilorin, Coram: Aboyi John Ikongbeh, Tijjani Abdullahi and Helen Moronkeji, Ogunwumiju JJCA on 31st May, 2006.

In the said judgment the Court of Appeal, or Lower Court or Court below upheld the decision of the trial Court and dismissed the appeal to the effect that the employment of the appellant was rightly terminated by the respondents.

BACKGROUND FACTS:

The appellant joined the service of the 1st respondent University on 7th January, 1991 and by the year 2000 he had become a Senior Lecturer in English in the department of Modern European Languages, Faculty of Arts of the University.

In February, 2000, the appellant was awarded the Alexander Von Humboldt Research Fellowship tenable in the Federal Republic of Germany. The appellant thereupon applied for leave to utilize the external award from the Administration of the University. His application in this regard was expressly supported by his Head of Department and the Dean of the Faculty of Arts.

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When, by 13th March, 2000, it dawned on the appellant that the Appointments and Promotions Committee of the University, which is the body invested with such power, would not be convened before March 29th, 2000, the scheduled date for his departure for the award, the appellant forwarded an application directly to the Vice-Chancellor, the 4th respondent, for executive approval of his application for leave to utilize the scholarship award.

The appellant left for the Federal Republic of Germany on the 29th March, 2000 to utilize the award at which time the 4th respondent had not made any response to the application of the appellant, despite the urgency.

Immediately after the appellant had left the Country, the 4th respondent ordered the Bursary Department to stop the salary of the appellant. The appellant was eventually accused of absconding from the University. At the end of some disciplinary proceedings on this allegation, the appellant was directed by the 2nd respondent to return to the University on December 21, 2000. The letter conveying this directive was received by the appellant in Germany on December 19, 2000, id est, two days before the expiry of the ultimatum.

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The employment of the appellant with the University was terminated on the premise of his failure to return to the University on the December 21, 2000 without the benefit of any hearing as to why he could not comply with the directive.

It was sequel to this that the appellant filed this action at the trial Court claiming the reliefs contained in the Originating Summons which spans pages 1 and 2 of the Record in this appeal. As indicated above, the learned trial judge dismissed the case of the appellant. The appellant appealed to the Court below which dismissed his appeal and further aggrieved has appealed to the Supreme Court.

On the 5th day of March, 2018, the learned counsel for the appellant, Dayo Akinlaja SAN adopted the brief of argument filed on 25/6/2007 and a Reply brief titled Consequentially Further Amended Reply Brief filed on 12/8/13 and deemed filed on 22/1/14. In the appellant’s brief of argument was crafted a sole issue for determination which is thus: –

Whether the lower Court was not wrong in dismissing the appeal of the appellant herein having regard to the relevant provisions of the University of Ilorin Act

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and the Constitutional provision on fair hearing.

Learned counsel for the respondent, Yakubu Dauda Esq. adopted the Amended respondents’ brief of argument settled by K. K. Ekeja and filed on 13/5/2011. They raised and argued a Notice of Preliminary Objection but in the event the Objection was not upheld by the Court, a single issue was identified for the determination of the appeal as follows: –

Whether the Court of Appeal was not right in dismissing the appellant’s appeal having regard to the materials at her disposal and the provisions of 1999 Constitution and the University of Ilorin Act applicable to the case.

It is stating the obvious that the Preliminary Objection would be handled and determined first before the Court can venture into the appeal as the Court has to be sure it has the vires to go beyond that Objection.

NOTICE OF PRELIMINARY OBJECTION:

The respondents filed a Notice of preliminary objection by which they challenged the competence of the appellant’s appeal on the ground that the Notice of Appeal was not signed by a legal practitioner known to law i.e. the Legal Practitioners Act. For purposes of clarity the Notice of

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Preliminary Objection is reproduced hereunder:

“TAKE NOTICE that at the hearing of this appeal the respondents shall by way of preliminary objection pray or move this Honourable Court to strike out this appeal for being incompetent on the following grounds: –

1. The Notice of Appeal filed by the appellant in this case and as appearing on the record is not signed by any Person or legal practitioner known to law:
2. The appeal is fundamentally defective and grossly incompetent, and
3. This Honourable Court has no jurisdiction to entertain same.”

Learned counsel for the respondents contended that the Notice of Appeal was not signed by a person recognised to practice law in Nigeria as competent to do so. That the defect is fundamental and invalidated the appeal thereby ousting the jurisdiction of this Court. He cited N.N.B. Plc v. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549; Registered Trustee of the Apostolic Church Lagos Area v. Rahman Akindele (1967) All NLR 110; Onward Enterprises Ltd v. Olam International Ltd (2010) All FWLR (Pt. 531) 1503 at 1513; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 etc.

That in the circumstance this Court lacks legal competence

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to entertain the appeal and the appeal should be struck out.

In response, learned counsel for the appellant contended that the appellant had filed an affidavit wherein he deposed that the Notice of Appeal was signed by a legal practitioner, Miss Temitope Odedele in her capacity as one of the counsel to the appellant/applicant herein on behalf of the counsel expressly named on the Notice of Appeal. That there was nothing to prove that the Notice of Appeal was not signed by a qualified legal practitioner and so the objection based upon the assertion of the objector should be discountenanced. He cited Biodun Oduwole & 3 Ors v. Professor Tan David West (2010) ALL FWLR (Pt.532) 1643 at 1633; Section 101 of the Evidence Act, 2011 (as amended).

The case law on ground right now is that a Notice of Appeal must be signed by the appellant or his legal representative, and where such a representative is a legal practitioner he must be qualified to practice in Nigeria. A Notice of Appeal not signed by a person recognised to practice law in Nigeria would be deemed incompetent. In this I seek solace in N.N.B Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916)

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549; Registered Trustee of the Apostolic Church, Lagos Area v. Rahman Akindele (1967) ALL NLR 110.

The notice of Appeal in issue here shall be recast hereunder, viz: –

“IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

SUIT NO: FHC/IL/CS/34/2001

SC. NO: CA/IL/53/2005.

BETWEEN:

DR AJEWUMI BILI RAJI – APPELLANT

AND

1. UNIVERSITY OF ILORIN
2. THE GOVERNING COUNCIL UNIVERSITY OF ILORIN
3. STAFF DISCIPLINARY AND APPEAL COMMITTEE UNIVERSITY OF ILORIN
4. PROFESSOR SHUAIB OBA ABDULRAHEEM VICE CHANCELLOR, UNIVERSITY OF ILORIN
5. MR. MURTALA TUNDE BALOGUN (REGISTRAR AND SECRETARY GOVERNING COUNCIL, UNIVERSITY OF ILORIN

NOTICE OF APPEAL

TAKE NOTICE that the plaintiff/appellant being dissatisfied with the judgment of the Court of Appeal, Ilorin Division, delivered on 31st May, 2006 more particularly stated in paragraph 2 hereof doth hereby appeal with leave granted by the Court of Appeal on the 13th day of July, 2006 to the Supreme Court on the grounds set out in paragraph 3 hereof and will at the hearing of the appeal seek the relief set out in paragraph 4.

AND the appellant further states that the

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names and addresses of the persons directly affected by the said appeal are those set out in paragraph 5.

2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED AGAINST: WHOLE DECISION.
3. GROUNDS OF APPEAL.

GROUND ONE:

The lower Court erred in law in dismissing the appeal of the appellant herein after having held that the only way to terminate the contract of service of an academic staff of which the appellant is, with statutory flavour is to adhere strictly to the procedure laid down in the statute.

WHEN:

i. It is patent from the evidence on record that the respondents did not comply with the procedure prescribed under the University of Ilorin Act for termination of employment of staff.

ii. Council did not give the statutory notice of misconduct to the appellant and the alleged notice of misconduct to the appellant is invalid in law.

iii. Council did not afford him an opportunity of making representations in person on the matter to the council.

iv. Failure of the council to give the requisite notice to the appellant denied the latter the opportunity of requesting for the investigation of the matter by a

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joint committee of the council and the Senate as provided by the statute.

v. The default of the respondents in complying with the statutory procedures is tantamount to a denial of fair hearing to the appellant.

GROUND TWO:

The lower Court misdirected itself on the facts of this case in holding thus: –

“Exhibit Bili 4 was written by the Registrar – as Chief Administrative officer and Secretary to Council. Exhibit Bili 6 and Bili 7 show clearly that the council delegated its powers to investigate the allegation of misconduct on the S.D.A.C.”

and in proceeding on the footing thereof, inter alia, to dismiss the appeal of the appellant herein.

WHEN:

i. Exhibit Bili 4 was written by one T. A. Adeyemi for the Registrar.

ii. It is not indicated on the letter (Exhibit Bili 4) that the Registrar wrote or had the letter written on his behalf as Secretary to Council.

ii. The person holding the office of the Registrar is by virtue of that office Secretary to the Senate, Congregation and Convocation of the University as well under paragraph 6 (2) of the 1st Schedule to the University of Ilorin Act.

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There is nothing on Exhibits Bili 6 and Bili 7 to conclusively show that the Council authorised the writing of the letters.

v. The two letters are of title or no worth in law being products of multi-layered sub-delegation.

GROUND THREE:

The lower Court misdirected itself on the facts of this case in holding as follows: –

“Thus, I am of the firm view that the initiation of disciplinary proceedings was done by the Registrar through whom the University acted. By Exhibit Bali 6 dated 7/9/2000 the Registrar’s office wrote to the appellant its decision to refer the matter to the S.D.A.C.

It only stands to reason, that where an allegation of misconduct has been made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for such purpose”, thereby implicitly approving of the disciplinary proceedings of the respondents.

WHEN:

i. It was the case of the respondents at the trial Court that it was the Appointments and Promotion Committee of the 1st respondent that directed that the case of the appellant be referred to the Staff

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Disciplinary and Appeal Committee.

ii. The University is not synonymous with the Council whose prerogative under the law it is to initiate disciplinary proceedings.

iii. The initiation of disciplinary proceedings could not have been validly delegated to the Registrar by either the University or the Council.

iv. The panel allegedly set up in this case is unknown to the University of Ilorin Act and its setting up is not in consonance with the procedures laid down under the Act.

GROUND FOUR:

The lower Court misdirected itself on the facts of this case in holding as follows: –

“I am of the view that appellant’s counsel’s argument on this issue is completely misconceived. The appellant had made all representations to the S.D.A.C. who investigated the allegation against him. He had the opportunity to request for a Joint Committee of the Council and the Senate to decide his matter. The whole disciplinary process starting with the issuing to him of Exhibit Bili 4 the query commenced on 5th May 2000 and ended with Exhibit Bili 10 dated 14th December 2000. He had a period of about 6 months to make the request which he failed and neglected to do.

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He cannot now complain of lack of opportunity to do so.

Section 15 (1) (b) and (c) of the Unilorin Act talk of the appellant’s right to make personal representation to the Council and the right to make arrangement for a Joint Committee of the Council and Senate. I think the legal maxim volenti non fit injuria is applicable to restrain the appellant from complaining in the circumstances that he was not given adequate opportunity to present his case by virtue of Section 15 (1) (b) and (c).”

WHEN:

i. Council did not give the statutory notice of misconduct to the appellant.

ii. The appellant could only request the Council for a Joint Committee of the Council and Senate to decide his matter if he had been given notice by Council of alleged misconduct.

iii. The appellant was railroaded into appearing before the S.D.A.C. without any opportunity of requesting for the statutory joint committee to investigate his matter.

iv. His Lordship had earlier in the judgment held that statutory provisions cannot be waived.

v. The maxim of “volenti non fit injuria” is inapplicable in the circumstances of this case.

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GROUND FIVE:

The lower Court misdirected itself on the facts of this case in holding thus:-

“A careful perusal of Exhibit bili 3 to my mind does not show any bias. The Report of the Committee Exhibit Bili 3 showed clearly the attempts of the Committee to investigate his matter and their conclusions and recommendation to Senate. Where is the bias when the appellant failed to utilize three opportunities given to him by the Committee of the university to appear in person more so when the allegation of misconduct was his absence from his duty post which he had admitted in Exhibits Bili 5 and Bili 8. To my mind, I am of the view that the appellant was given every opportunity to be heard.”

WHEN:

i. Exhibit Bili 3 is excerpts from S.D.A.C. report of September/October 2000 and the appellant was therein recommended for reprimand for gross misconduct.

ii. By Exhibit Bili 7 dated 5th October, 2000, the appellant was invited to appear before the S.D.A.C. to face disciplinary proceedings on 14th November, 2000 in respect of an alleged misconduct for which he had been indicated in Exhibit Bili 3.

iii. Exhibit Bili 8 shows that the appellant had

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indicated that he only received one letter of invitation (Exhibit Bili 7) and the fact that the appellant did not receive two earlier letters is confirmed by Exhibit Bili 3 in paragraph 3 (v).

iv. The appellant was to be heard on why disciplinary action should not be taken against him for leaving his post in the way and manner it did and not on whether or not he left his duty post.

v. Why the appellant admitted leaving the University to enjoy the award he won, he did not admit that he deserved penal sanction for so doing.

vi. There was evidence that the Disciplinary Committee did not sit on the 14th November, 2000 that the appellant was invited to appear before the Committee.

vii. The appellant was not informed of any other scheduled meeting to enable him decide whether or not he would want to appear to make oral representation.

viii. Exhibit Bili 8 was a direct response to Exhibit Bili 7 which specifically directed the appellant to appear on 14th November, 2000.

ix. The appellant indicated that he would not be able to physically appear due to logistic reasons.

GROUND SIX:

The learned justice of the lower Court erred in law in holding as follows: -<br< p=””

</br<

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“From the affidavit evidence it is clear that the appellant’s appointment was deemed terminated by him on his failure to report back to his duty post. The University Council gave him an opportunity to retrace his steps which he did not avail himself of. There is absolutely no need for the University to issue a query on the appellant for his failure to obey a direct order of the Council to return to duty post he was plainly made to understand that the consequence of his failure to return to his duty would result in automatic termination of his appointment.”

WHEN:

i. There is no dispute that the copy of Exhibit Bili 10 sent to the appellant was received by him on December 19, 2000, id est, two days before the deadline of December 21, 2000 given to him to return to the Country.

2. The respondents did not deny the claim of the appellant that it was practically impossible for him to meet up with the deadline given from the time of the receipt of the letter to come back to Nigeria from Germany.

iii. The University Council, in the circumstances, did not give the appellant a fair opportunity to avail himself of the directive to report back to

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his duty post within the period given.

iv. Failure to obey a direct order of the Council, alluded to by the lower Court, would be a misconduct (for it to precipitate termination of employment) in respect of which the appellant should have been given hearing as laid down by the enabling statute.

v. It is not open to the University Council under the University Act to deem the appointment of a staff terminated by such staff on ground of failure to obey Council’s directive without giving opportunity for such staff to be heard in respect of the matter.

vi. Failure to given hearing to the appellant on his failure to return to his duty post within the period given negates the principle of audi alteram partem and is tantamount to a breach of the appellant’s constitutional right to fair hearing.

GROUND SEVEN:

The decision is against the weight of evidence.

*** Additional grounds may be filed upon the receipt of the record of proceedings.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL

An order of the Court allowing the appeal and entering judgment for the appellant on his claims in the Court of first instance.

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PARTIES AFFECTED BY THE APPEAL AND THEIR ADDRESSES:

1. DR. AJEWUMI BILI RAII c/o HIS COUNSEL, DAYO AKINLAJA & CO., SUIT 89, STASDIUM SHOOPING COMPLEX IBRAHIM TAIWO ROAD, ILORIN.
2. UNIVERSITY OF ILORIN
3. THE GOVERNING COUNCIL, UNIVERSITY OF ILORIN.
4. STAFF DISCIPLINARY AND APPEAL COMMITTEE, UNIVERSITY OF ILORIN.
5. PROFESSOR SHUAIB OBA ABDULRAHEEM (VICE CHANCELLOR, UNIVERSITY OF ILORIN)
6. MR. MURTALA TUNDE BALOGUN (REGISTRAR AND SECRETARY GOVERNING COUNCIL, UNIVERSITY OF ILORIN). – ALL OF THE UNIVERSITY OF ILORIN

DATED THIS 14TH DAY OF JULY 2006

“DAYO AKINLAJA, ESQ.

DAYO AKINLAJA & CO.

APPELLANT’S COUNSEL,

SUIT 89, STADIUM SHOPPING

COMPLEX, IBRAHIM TAIWO ROAD

ILORIN.”A cursory look at the end part of the Notice of Appeal above showcased in full shows that the identity of the person who signed the said Notice is not discernible in for Dayo Akinlaja purportedly signing. That is to say that the identity of the signatory or an indication that the person who signed it is an enrolled legal practitioner in Nigeria, the signature appended for Dayo Akinlaja being a scribble. This goes against what is now the laid down procedure

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for the appending of signatures of a legal practitioner on an originating process such as a Notice of Appeal. In this I cite the case of Onward Enterprises Ltd v. Olam International Ltd (2010) All FWLR (Pt.531) 1503 at 1523 per Muktar JCA thus: –

“The person signing is required to write his name on long hand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling fall short of. I am not saying that the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner.”

Learned counsel for the appellant in a curative attempt on this defect anchored on the affidavit deposed to by Miss Temitope Odedele, identifying herself as practitioner in the chambers of the firm representing the appellant and that she signed the said Notice of Appeal. Appellant seeks anchor on Section 101 of the Evidence Act, 2011 (as amended). For clarity I shall quote the said Section 101 thus: –

“In order to ascertain whether a signature…is that of the person by whom it purports to have been written

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or made, any signature… admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved.”

As posited by learned counsel for the respondent, the defect alluded to is fundamental and a Notice of Appeal is an originating process which is what activates the jurisdiction of this Court and so since the appellant himself did not sign the document and appellant’s counsel has put out himself to sign on behalf of his client, then it behoves on him in bounden duty to do so properly. This is because, without a valid Notice of Appeal, the foundation is lacking and the appeal is automatically rendered incompetent and with it flying out of the window is the jurisdiction of the Court. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; NBN v. NET (1986) 3 NWLR (Pt. 31) 667; Atuyeye v. Ashamu (1987) 1 NWLR (pt.49) 276; Nwaeze v. Eze (1999) 3 NWLR (Pt.594) 410 at 418; NNB PLC v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549 at 574.

The position stated above is reiterated for emphasis by this Court in the case of Okafor v. Nweke (2007) All FWLR (pt. 368) 1016 at 1026 – 1027 to the effect that a process as

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the Notice of Appeal must be signed by a legal practitioner known to law, thus the identity of the person who signed the Notice of Appeal must be disclosed to assist the Court to confirm that the person who signed the document is a legal practitioner indeed. What is meant by this policy is not to await the clarification by affidavit as to the identity of the owner of the signature on the particular process. What the appellant is asking of the Court is to authenticate an absurdity, where the Supreme Court has to suspend action and ascertain first of all that the person who signed the starting point of an appeal when it has not been signed by the appellant himself but a person who claims to be a legal practitioner, that he is indeed a legal practitioner. Such a surveying duty is not for the Court and nothing has happened yet to show that it is likely to be commenced now.

I cannot resist what Nsofor JCA stated in Olowokere v. African Newspapers Ltd (1993) 5 NWLR (Pt.295) 583 at 599 as it captures what a fundamental defect does to a Notice of Appeal. He stated as follows: –

“The question firstly required to be asked to be firstly answered becomes thus: – how is an appeal – id est

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a valid initiated to as to be by “due process of law”. But there is no doubt that a notice of appeal is a very important document. It is the very foundation of an appeal against any appealable decision. If therefore a notice of appeal is detective, then the Court of Appeal shall lack legal competence to entertain the appeal. It will strike out the appeal…… The notice of appeal (see Exhibit P1 at pages 57 and 58) was defective in one of the necessary to constitute it a valid notice of appeal it became Ipso Facto defective in all the condition wholly and entirely. The conditions precedent not having been satisfied or complied with, the purported notice of appeal filed was in my respectful opinion an exercise in futility the notice of appeal had no existence de jure. It was not by itself and in itself “a due process” to commence or initiate a valid appeal the Court of Appeal could entertain. What then was the legal consequence It is clearly obvious. The Notice of Appeal was a nullity. And a fortiori, there was never ever appeal lodged or filed ab initio.”

It follows from what is on ground including the flimsy

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attempt by the appellant to sway the Court to its side of reasoning as the reality is that the instant Notice of Appeal is incurably bad or fundamentally defective as it has produced a failure to properly initiate an appeal. The situation is beyond what can be termed a technicality being a scenario that has effectively ousted the jurisdiction of this Court to enter into the determination of the appeal. See Onward Enterprises Ltd v. Olam International Ltd (supra) 1513-1514.

In the end therefore this Notice of Appeal is invalid and I have no option than to uphold the preliminary Objection.

The appeal is consequently struck out.

I make no order as to costs.

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SC.155/2007