Kwara State Polytechnic, Ilorin & Ors. V. Mr. A. O. Oyebanji (2007)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

At the Ilorin Division of the High Court of Justice, Kwara State, in Suit KWS/130/2004, the Plaintiff (now the Respondent) by an Originating Summons dated the 16th day of August, 2004 and filed on the 17th day of August, 2004 sought for determination the following questions:

“1. Whether in the circumstances of this case and having regards to relevant available documents, Regulations Governing Conditions of Service of Senior/Junior Staff of the Polytechnic, Polytechnic Law Cap, 120, Laws of Kwara State, 1994, the Plaintiffs can be compulsorily retried by the Defendants from the service of the 1st Defendant.

“2. Whether on the proper construction and interpretation of the document attached to the affidavit herewith, Regulations governing conditions of service of Senior/Junior Staff of the Polytechnic, Polytechnic Law, Cap. 120 Laws of Kwara State, 1994, the Plaintiff is an academic staff and if so whether he can be retired from service of the 1st Defendant when he is yet to attain the age of 60 years or 65 years.”

Consequently, the Plaintiff/Respondent sought for the following reliefs:

“1. A Declaration that the compulsory retirement of the Plaintiff from the service of the 1st Defendant as communicated to the Plaintiff in the Defendants letter dated 19th May, 2004 and 16th July, 2004 respectively is ultra vires, void and of no effect whatsoever.

“2. An Order setting aside the said compulsory retirement as contained in the Defendants’ Letters dated 19th May, 2004 and 16th July, 2004 respectively to the Plaintiff.

“3. A Declaration that the Plaintiff is still in the service of the 1st Defendant and is entitled to his salaries; allowances and other entitlements of his office from May, 2004 till the day of the Judgment in this case and henceforth thereafter.

“4. An Order compelling the Defendants to reinstate the Plaintiff to his position as Chief Technologist with the defendants,

“5. An Order compelling the defendants to pay the Plaintiff the salaries, allowances and other entitlements from May, 2004 till the date of Judgment in this case and; henceforth thereafter until the Plaintiff duly retires from service.

“6, An Order restraining the Defendants, their agents, servants, privies or anybody acting on their instructions from further disturbing the Plaintiff until the he duly retires from the service of the 1st Defendant”

The Originating Summons was supported by an affidavit of twenty-nine paragraphs deposed to by the Plaintiff/Respondent with annexed Exhibits marked 1 – 16, A Further Affidavit of eighteen paragraphs in Reply to the Respondent’s Counter-Affidavit was also filed with annexures marked Exhibits 17A, Band C and 18 – 20 respectively.

Funke Abolarin of the chambers of the Counsel to Plaintiff/Respondent deposed to a Further Affidavit in reply to the Counter Affidavit of the Respondent Annexed to the said Further Affidavit is Exhibit 21 otherwise described as “ASUP 17 – 22.” In reaction to the Affidavits in support of Originating Summons, the Defendants (now the Appellants) filed two counter affidavits, the first which is of 36 paragraphs with annexures marked KP1 – KP10 while the second – a Further counter-affidavit of fifteen paragraphs – has annexed thereto “Exhibit KP11” The Defendants also filed a Notice of Preliminary Objection to the competence of the suit, which they argued together with the Originating Summons.

Issues having been joined the Learned Counsel on both sides addressed the court and in his judgment the Learned trial Judge Honourable Justice Folasade Ojo dismissed the Preliminary Objection of the Defendants/Appellants and granted all the reliefs sought by the Plaintiff/Respondent. Dissatisfied with the Judgment of the trial court the Appellants filed four original Grounds of Appeal in the lower court and by leave of this court the Notice and Grounds of Appeal were amended to incorporate Grounds 4 – 9.

Briefs were exchanged in this court and were duly adopted on the 5th day of February, 2007, after correction of some typographical errors in the Respondents’ Brief which incorporated a preliminary objection to the competence of the Appeal.

The Grounds of Appeal are hereunder reproduced without their particulars as follows:

“Ground One:

The learned trial Judge erred in law when it held that the doctrine of issue estoppel raised by the Plaintiff/Respondent and supported by the Defendants/Appellants’ Counsel is not applicable.

“Ground Two:

The lower court erred in law when it held that the suit was initiated by due process of law when apparently there are substantial dispute of fact warranting the commencement of the suit by writ of summons rather than by originating summons.

“Ground Three:

The lower court erred in law when it assumed jurisdiction and determined this suit when apparently it lacked the requisite competence and jurisdiction to entertain same.

“Ground Four:

The judgment of the lower court is against the weight of affidavit evidence.

“Ground Five:

The learned trial judge erred in law when it granted the Plaintiff/Respondent prayer compelling the defendants to reinstate the Plaintiff to his position as Chief Technologist with the defendants.

“Ground Six:

The trial court misdirected itself in law when it granted the six reliefs of the Plaintiff having answered the two questions for determination in the affirmative.

“Ground Seven

The trial court erred in law when it held that the Plaintiff/Respondent is an academic staff without considering the provisions of the Regulation governing conditions of service of the Plaintiff and the provisions of the Polytechnic law.

“Ground Eight

The trial court erred in law when it held that the suit before it is on determination of the status of the employment of the Plaintiff/Respondent while the suit before Honourable Justice Gbadeyan (Suit No. KWS/53/04: OLA ADEFILA & 2 ORS VS. RECTOR, KWARA STATE POLYTECHNIC & 3 ORS.) was on determination of age of retirement.

“Ground Nine

The trial court erred and/or misdirected itself in law when it held that the Defendants have not denied that the Plaintiff performed the duties of academic staff and also that the Defendant did not dispute the Plaintiff’s affidavit that his services assisted the defendant in the accreditation of some courses offered by the Defendant.

“Ground Ten

The trial court erred in law when it held that the joinder of the visitor of the 1st Defendant/Appellant to the suit would be a surplusage and immaterial.”

In the Appellants’ Brief, five issues were distilled from the Grounds of Appeal for determination. They are couched in the following terms:-

“1. Whether the decision in suit No. KWS/53/2004: OLA ADEFILA & 2 ORS. VS. RECTOR KWARA STATE POLYTECHNIC & ORS does not create issue estoppel to bar the Respondent from re-litigating on the issue of status and retirement age of members of Academic Staff Union of Polytechnic (ASUP), Kwara State Polytechnic chapter. Ground 1, 3 and 7

“2. Whether the trial court was right to have heard and concluded the matter on the originating summons procedure when there are conflicts and/or substantial dispute of facts in the affidavits of the parties. Ground 2.

“3. Whether the trial court was right to have granted all the six reliefs of the Plaintiff/Respondent before it against the Appellant when it concluded the questions for determination in the Appellants’ favour. Grounds 4 and 5.

“4. Whether the trial court rightly held and declared that the Respondent as an academic staff on the ground that the Appellant did not deny that the Respondent performs the duties of an academic staff especially when the Respondent did not ask for such prayer from the trial court. Grounds 6 and 8

“5. Whether the failure to join the visitor to Kwara State Polytechnic is not fatal to the competence of the Plaintiffs/Respondent’s suit. Ground 9.

On the other hand the Learned Counsel for the Respondent apart from the Preliminary objection also formulated five issues for determination which are hereunder stated below:

1. Whether the learned trial Judge was right to hold that the case of the Plaintiff/Respondent was not caught by the doctrine of issue estoppel. Grounds 1 and 7 of the Ground of Appeal;
2. Whether the learned trial judge; was right to hold that the suit of the Plaintiff/Respondent was property commenced via Originating Summons; Grounds 2 and 3 of the Grounds of Appeal;
3. Whether the learned trial Judge was right in granting the reliefs sought by the Respondent having resolved all the issues in favour of the Respondent. Grounds 4 and 5 of the Ground of Appeal;
4. Whether the Learned trial Judge was right in holding that Plaintiff/Respondent is an academic staff having regard to the general circumstances of the case. Grounds 6 and 8.
5. Whether the lower court was correct to hold that the visitor to the Kwara State Polytechnic was not a necessary party to this case having joined 1st – 5th Appellants as defendants.

Arguing issue No.1, which is whether the decision in Suit No. KWS/53/2004. OLA ADEFILA & 2 ORS VS RECTOR KWARA STATE POLYTECHNIC & ORS does not create estoppel to bar the Respondent from re-litigating on the issue of status and retirement age of members of the Academic Staff Union of Polytechnics (ASUP), Kwara State Polytechnic chapter Grounds 1, 3 and 7, the Learned Counsel for the Appellants’ answered the question in the affirmative submitting that the Respondent’s suit is caught by the doctrine of issue estoppel and by the decision in the case cited as Suit No. KWS/53/04 the Respondent can no longer litigate on the issue of retirement age. Consequently, according to the Learned Counsel, the trial judge lacked the requisite competence and jurisdiction to entertain the suit.

Citing the cases of ADAMBA v. ODIESE (1990) 1 NWLR (pt. 125) 165 at 178; OSHODI & ORS v. EYIFUNMI & ANOR (2000) 7 SCNJ 295 AT 315 Per Onu J.S.C.; EBBA & ORS VS CHIEF OGODO & ORS (2000) 6 S. C. N. J. 100 AT 121 & 124 on the rationale behind the principles of estoppel per rem judicatam he submitted that it is in disputable that the Respondent is a member of Academic Staff Union of Polytechnics (ASUP) who was the Plaintiff in suit no KWS/53/2004 and therefore he was a party to the said suit. Moreover, the issue in KWS/53/2004 and this suit are also the same. For this submission he placed reliance on the case of NWAWUBA & ORS v. ENEMO & ORS (1988) 5 S.C.N.J. 154 to take the view that the decision of the trial court on the status of the Respondent is erroneous since Gbadeyan J. had decided on the retirement age of Academic Staff of Polytechnic which the Plaintiff/Respondent admitted.

Learned Counsel further held the view that the learned trial Judge was wrong when she decided that the issue for determination in the suit before her was completely different from Suit No. KWS/53/2004 that is that the former suit was on the retirement age of academic staff while the latter is on the status of the Respondent, submitting that the two cases pertain to the same subject matter, which is the retirement age of academic staff.

Reiterating that from the foregoing submissions the lower court lacked the jurisdictional competence to try the case he relied on OSHODI v. EYIFUNMI & ANOR supra at 315 – 316 S.C. to urge this court to allow Grounds 1, 3 and 7 of the Grounds of Appeal.

ISSUE NO. 2 WHETHER THE TRIAL COURT WAS RIGHT TO HAVE HEARD AND CONCLUDED THE CASE BY WAY OF ORIGINATING SUMMONS. On this issue the Learned Counsel for the Appellant submitted that the Plaintiff/Appellant’s suit was not initiated by due process of law when there were conflicts and substantial dispute of facts warranting the commencement of the suit by writ of summons He referred to his Notice of Preliminary Objection in the lower court where he challenged the competence of suit. He further alluded to the depositions in the affidavits and counter affidavits of the parties where it was disputed as to whether the Plaintiff/Respondent was academic staff, and also the 29 documents tendered in that respect and submitted on the authority of NATIONAL BANK OF NIGERIA & ANOR – VS. LADY ALAKIJA & ANOR (1978) 9 – 10 S. C. (REPRINT EDITION) 42 AT 57 S. C, that a case that has to do with the status of an employee claiming his right should not normally be commenced by way of originating summons but by writ of summons. Other cases cited to support this view include OLUMIDE & ORS – VS- DR. AJAYI (1997) 8 NWLR (Pt. 517) 433 at 442 – 443 para G – A; IBUKUN v. IBUKUN (1974) 2 S. C. 41 at 47, TAMFA OIL LTD VS. A. G. FEDERATION (2003) 18 NWLR (Pt. 852) 453 at 467 para- D- G.

He finally argued in sum that it was impossible for the trial court to resolve the conflicts between Exhibits 1, 7 and 8 attached to the Plaintiff/Respondent’s Affidavit as against Exhibit KP4 attached to the Counter-Affidavit of the Appellants without calling oral evidence as to the retirement age of all grades of public officers in the service of Kwara State, The trial court, he contended, having failed to hear the parties in the resolution of the substantial conflicts in the affidavit and having held that the suit was commenced by due process, occasioned a miscarriage of justice. Issue number 2, he urged should be resolved in favour of the Appellant.

ISSUE NO.3 WHETHER THE TRIAL COURT WAS RIGHT TO HAVE GRANTED ALL THE SIX RELIEFS OF THE PLAINTIFF/RESPONDENT BEFORE IT HAVING CONCLUDED THE QUESTIONS FOR DETERMINATION IN APPELLANTS’ FAVOUR.

Here the Learned Counsel for the Appellants recalled the two questions posed for determination by the Plaintiff/Respondent in the lower court which he the Appellants’ Counsel said the court answered is in the affirmative and that having regard to the relevant available documents, Regulations Governing the Conditions of Service of the Employment of the Plaintiff/Respondent, he can be compulsorily retired by the defendants from the service of the 1st Defendant without attaining the age of 60 or 65 years. Appellants’ Counsel then questioned the rationale behind the court granting the six reliefs, having resolved those questions against the said Plaintiff/Respondent instead of dismissing his case.

He further contended that the lower court failed to advert his mind to the documents/Regulations Governing the Service Conditions of Service of the Respondent particularly Exhibit 7 which shows that, the Plaintiff/Respondent is a civil servant who can be retired by virtue of the Civil Service Rules which prescribes 35 years of service and that such failure occasioned a miscarriage of justice.

It was further submitted that the lower court had no power to order reinstatement of the Plaintiff/Respondent to the post of Chief Technologist as neither the court nor the Respondent can dictate to an employer what post the employee is to occupy. For this submission he quoted with approval the dictum of Ikongbeh JCA of Blessed memory in the case of UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR v. MRS. S. B. AJIDE APPEAL NO. CA/IL/10/2005 (UNREPORTED) delivered on 11th Feb., 2005 and insisted that the court lacked the jurisdiction to have granted the order of reinstatement which act occasioned a miscarriage of justice and accordingly this court is urged to allow Ground 4 of the Appeal and resolve the issue in favour of the Appellants.

ISSUE NO.4 WHETHER THE TRIAL COURT RIGHTLY HELD AND DECLARED THAT THE RESPONDENT IS AN ACADEMIC STAFF ON THE GROUND THAT THE APPELLANT DID NOT DENY THAT THE RESPONDENT PERFORMED THE DUTIES OF AN ACADEMIC STAFF ESPECIALLY WHEN THE RESPONDENT DID NOT ASK FOR SUCH PRAYER FROM THE TRIAL COURT. GROUNDS 6 AND 8. Here again, the Learned Counsel for the Appellants answered the question posed above in the negative submitting on the authority of ADEYEMI v. OPEYORI (1976) 1 FNLR 146 AT 158 that it is trite that it is the claim of the Plaintiff that determines the jurisdiction of a court and that a careful perusal of the claim before the lower court would reveal that the Respondent did riot claim a declaration that he is an academic staff but the court gratuitously awarded same to him.

He maintained further that a court of law has no jurisdiction to award a party what he did not pray for as it is not a Father Christmas. OBOROH VS. OGHUVWU (2000) 3 NWLR (Pt. 547) 120 at 128 para G – H; EKPENYONG & ORS VS. NYONG & ORS (1975) 2 S. C. 71 AT 80 – 81; LAYADE VS. ANALPINA WORLD TRANSPORT NIG. LTD (1996) 6 NWLR (Pt. 456) 554 at 558 Para B – C, were further relied upon to submit that in a contract of employment it is the terms as agreed by the parties that the court will work on, in the determination of any dispute arising there from. The Learned Counsel pointed out on the authorities of BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA (1991) 5 NWLR (Pt. 192) 388 at 413 paras A – B; OMENIKAv. MORRISON IND. PLC (2000) 13 NWLR (PT. 683) 147 at 153 – 154 paragraphs H – C, that even in statutory employment, it is the provision of the statute that the court will consider in determining whether the act of the. employer is wrong or not but that in this case the trial court failed to consider Exhibit 21 (ASUP 17 – 22) which the plaintiff/respondent annexed to this affidavit as regulations governing his conditions of service apart from the provisions, of the Polytechnic Law, Cap 120 Laws of Kwara State 1994.

He further opined that the lower court merely considered extraneous documents like the payment voucher, which shows that deductions were made for academic staff from the plaintiff’s salary and other correspondents, which have not changed the status of the plaintiff/respondent as a technical staff.

Learned Counsel referred again to the 1st and 2nd questions for determination in the lower court arguing that the trial court failed to appraise the questions before arriving at its decision that the Respondent was an academic staff in spite of the provisions of section of Cap. 120 Laws of Kwara State, pages 151 -154 of the regulations governing conditions of service for both junior and senior staff of the 1st Defendant, the schedule of duties of Plaintiff/Respondent and the definition of the words “Technical” and “technologist” but relied heavily on paragraph 4 of Exhibit 18 and Exhibit 1 which cannot override the express provisions of the Polytechnic Law Cap 120 of Kwara State.

Copious references were again made to certain paragraphs of the Appellants Counter-Affidavit as far as the status of the Plaintiff/Respondent is concerned to submit that the court below erroneously held in spite of those averments that the Appellants did not deny the fact that the Respondent was an academic staff. Based on the above submission he urged this court to allow Grounds 6 and 8 of the Grounds of Appeal.

On the Last Issue No. 5 which is “WHETHER THE FAILURE TO JOIN THE VISITOR TO KWARA STATE POLYTECHNIC IS NOT FATAL TO THE COMPETENCE OF THE PLAINTIFF/RESPONDENT’S SUIT (GROUND 9)”, the Learned Counsel for the Appellant asserted that the trial court erred in law when he held that the joinder of the visitor of the 1st Defendant’s Polytechnic to the suit would be a surplusage and not fatal to the suit.

He referred to paragraph 1 of Exhibit 12 (the letter of compulsory retirement dated 19/5/2004) issued by the 1st Defendant to the Plaintiff and Section 14 (a) of the Polytechnic Law Cap 120, Laws of Kwara State as well as section 15(a) -(c), (i) and (ii) thereof which show that the 1st – 5th Defendants wrote the letter of compulsory retirement of the Plaintiff/Respondent on the instructions of the Executive Governor Kwara State and that being agents of the said Governor the failure to join the Governor or sue him is fatal to the Plaintiff’s case and not just a mere surplusage.

Accordingly he submitted that the Learned trial Judge ought to have struck out and/dismiss the plaintiff’s case and on the authorities of CARIEN (NIG) LTD v. UNIJOS (1994) 1 NWLR (PT. 323) 631 AT 659 Per Ogundare JSC, ESSANG v. AUREOL PLASTICS LTD & ANOR (2002) 17 NWLR (pt. 795) 155 at 181 per Ekpe JCA; NIGER PROGRESS LTD v. N.E.L. CORPORATION (1989) 3 NWLR (PT. 107) 68. LEVENTIS TECH. LTD v. PETRO JESSICA ENT. LTD. (1992) 2 NWLR (Pt. 224) 459, urged this Honourable Court to allow the Appeal on Ground 9.

Reacting to the arguments above proffered in the brief of argument of the Defendants/Appellants John Olusola Baiyeshea Esq. along with his team of lawyers, on the preliminary objection they raised against the appellants’ appeal which he described as invalid fundamentally defective and incurably bad in law, on behalf of the Respondent predicated the objection on five Grounds which he couched in the following terms:

“1. Ground 3 of the main Notice of Appeal is incompetent having not been supported by any particulars.

2. The omnibus ground 4 having been displaced by the ground 4 in the Amended Grounds of Appeal is deemed abandoned.
3. The Respondent also urge your Lordship to strike out the Issues formulated on the Incompetent Grounds of Appeal and a fortiori all the five Issues formulated by the Appellants and arguments thereon and therefore the entire appeal.
4. Grounds 5 and 8 of the grounds of appeal are vague, unreasonable and do not form part of the ratio decidendi.
5. All the issues formulated in the Appeal are incompetent having been formulated upon incompetent grounds of appeal or argued filed with incompetent grounds of appeal.

Arguing the preliminary objection the Learned Respondent’s Counsel submitted that Ground 8 of the Grounds of Appeal did not challenge the ratio decidendi of the judgment of the lower court and as such the ground is invalid. Also he continued, Ground 3 was framed without particulars and none was embedded in the body of the Ground as to why the court lacks jurisdiction. Referring to Order 3 Rule 2(3) of the Court of Appeal Rules, SOMOI SONKA LTD v. AOZEGE (2001) 1 FWLR (pt. 68) 1104 at 1115, per Mohammed JCA he maintained that the Ground is devoid of any particulars it not being an omnibus Ground. The Ground it was urged should be struck out on the authority of NOAZOKO v. ZAKARIYAU (1996) NWLR (Pt. 2) 187 at 188.

As for Grounds 5 and 8 of the Grounds of Appeal he cited OBA v. EGBERONBGBE (1998) NWLR (Pt. 615) 498; COKER v. UBA (1997) 2 S. C. N. J. 130 AT 145 and complained that the complaint of the grounds were off the mark as they merely glossed over the findings of the trial court that by section 151 of the Evidence Act the Appellants were estopped from denying the Respondent’s status as academic staff.

References were there made to EGBERONGBE’ s case supra at 485, NDAZOKO VS. ZAKARIYAU (1996) 1 NWLR (pt. 2) 187 at 189 and LIVESTOCK FEEDS PLC VS. FUNTUA (2005) ALL FWLR (PT. 286) 753 AT 764 to urge the court to strike out Grounds 5 and 8 of the Appellants Grounds of Appeal together with issue NO. IV at page 6 of the Appellants’ Brief of Argument and the arguments thereon at pages 23 – 28 of the brief.

On the objection to the omnibus Ground 4 of the Appeal it was contended that the effect of the Amendment of the original Grounds of Appeal is that Ground 4 was displaced by the 1st of the 6 additional Grounds and accordingly Ground 4 had been eliminated. Therefore, it was their submission that there cannot be a valid Ground of Appeal attacking the weight of evidence and that Ground 4 of the original grounds of appeal is deemed abandoned and should be struck out on the authorities of SPDC LTD v. ABBA (2005) ALL FWLR (PT. 257) 1533 AT 1544 – 1545 AND UNION BANK PLC v. OKUBAMA (2001) FWLR (PT. 33) 28. He then urged this court to uphold the grounds of preliminary objection and strike out Grounds 3, 4 (of the original Notice of Appeal) 5 and 8 of the amended notice of appeal and the issues formulated for determination in their respects.

In the alternative Counsel on the 1st issue formulated as to WHETEHR THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE CASE OF THE PLAINTIFF/RESPONDENT WAS NOT CAUGHT BY THE DOCTRINE OF ISSUE ESTOPPEL GROUNDS 1, 3 & 7 of the Grounds of Appeal contended that the Respondent was not caught by the doctrine of issue Estoppel as the case of the Respondent was whether at the age of 58 he could be retired from service of the appellants when he was yet to attain the age of 60 or 65 years. The Respondent, he maintained, claimed six reliefs and deposed to copious facts to ground his position that he is an academic staff and as such it would be wrongful to retire him having not attained the age of 65 based on the documentary exhibits which he urged the court below to construe in his favour.

He pointed out that the Appellants filed a counter affidavit wherein they deposed in paragraph 21 there of that they were not bound by the 55 years retirement age of an academic staff in spite of the judgment in KWS/53/2004 of which the plaintiff being a staff of the Polytechnic could take advantage of.

In defence of the averments in the counter-affidavit, counsel maintained, the plaintiff in reply annexed the certified true copy of the judgment in suit No. KWS/53/2004 and other relevant processes in the said suit and maintained that the Defendants/Appellants were bound by that judgment. This procedure according to the Learned Respondent’s Counsel was adopted in his brief in line with the decision in ADONE v. IKEBUSU (2001) FLWR (pt. 72) 1893 at 1900 per AYOOLA (JSC).

He noted that the Learned Counsel for the Appellants misconceived the application of the case of the Plaintiff/Respondent; rather, he submitted that issue estoppel should apply against the Appellants. Thus, all the cases cited by Appellants’ Counsel were cited out of context, as they do not apply to the facts and circumstances of this case. He urged us to therefore to answer their issue in the Affirmative.

“As for issue NO.2: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE SUIT OF THE PLAINTIFF/RESPONDENT WAS PROPERLY COMMENCED BY WAY OF ORIGINATING SUMMONS. GROUNDS 2, AND 3 OF THE GROUNDS OF APPEAL”; Learned Counsel submitted that given the fact that the resolution of the narrow issues before the court below was essentially the construction and interpretation of Exhibits attached to both the affidavits of the parties before the lower court and the Law setting up the polytechnic, the case was properly commenced by Originating Summons.

Quoting again the questions submitted for resolution in the court below and the reliefs sought by the Plaintiff/Respondent, he relied on the cases of FIRST BANK v. MAY CLINIC (2001) 4 SCNJ 1 AT 12; NBA v. NWOSU (1993) 9 NWLR (PT. 315) 110 AT 118; NANA IMPEX LTD v. AWUKAIN (2006) ALL FWLR (PT. 311) 1924 AT 1940 – 1941 PARAGRAPH H – B; SHIPCARE LTD v. OWNERS OF M. V. FORTUNATO (2003) FWLR (PT. 179) 1238 AT 1250 and NWOSU v. IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 11 SCNJ 102 AT 115 S.C. to submit that the correct approach in determining whether there is such a dispute that would not make it proper for Originating Summons, is to examine the affidavit evidence of the parties with the documents exhibited thereto and that in our instant case the documents provide the anchor upon which depositions in the affidavit would be considered since oral depositions cannot challenge or override the contents of authentic documents.

In this case the Learned Counsel for the Respondent further argued, parties at the hearing tendered certified true copies of the documents relied upon which were admitted as Exhibits 1 -29 and that paragraphs 4 – 8 of the affidavit in support which the Appellants now parade as containing disputed facts do not constitute any dispute as misconstrued by the Learned Counsel for the Appellants. He then noted that the bone of contention in the depositions is the status of the Respondent as an academic staff which was admitted by the Appellants in paragraph 30 of their counter-affidavit and supported by Exhibits KP5A-KP5B to the effect that Respondent had been performing academic duties for 23 years and that Appellants paid Respondent his allowance as academic staff and deducted Academic Staff Union of the polytechnic (ASUP) dues from his monthly salary; yet sometime in 2002 Appellants erroneously retired him and when he protested, he was reinstated and treated as academic staff as per documents exhibited. He finally submitted on this ground that even if there are disputed facts in the respective affidavits of the parties (which is not conceded) it does not take the cause out of the purview of the trial by Originating Summons for on the authorities of HABIB NIGERIAN BANK LTD v. BENSON OCHETE (2001) 1 FWLR (pt. 54) 406 – 407 and FEDERAL POLY JDAH (2001) FWLR (PT. 54) 384, what the law envisages is substantial dispute and not absence of any dispute at all. Counsel then urged this court to reject the Appellants’ contention and resolve issue NO.2 in the affirmative.

ISSUE NO.3, WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN GRANTING THE RELIEFS SOUGHT BY THE RESPONDENT HAVING RESOLVED ALL THE ISSUES IN FAVOUR OF THE RESPONDENT. GROUNDS 4 AND 5 OF THE GROUNDS OF APPEAL.

Here the Learned Counsel for the Respondent answered the question in the positive and added that in the entire judgment no single issue was resolved in favour of the Appellants but all were in favour of the Respondent.

References were made to the findings of the Learned trial Judge on the salient issues that were raised before him at page 542 (on Estoppel), and 543 (on the competence of commencing the suit by Originating Summons) submitting that it was after the Learned Judge had resolved the issues/questions that he concluded at page 549 that the two questions were answered in the affirmative and consequently, all the reliefs sought by the Plaintiff/Respondent were granted.

Learned Counsel observed that it is the use of the word “affirmative” that the Learned Appellants’ Counsel now parades as the resolution of the two questions in their favour when in actual fact it was in favour of the Plaintiff/Respondent.

According to him, the use of the word affirmative instead of ‘negative’ does not diminish the fact that judgment ought to be in favour of the Plaintiff/Respondent and that the Appellant cannot capitalize on a mere slip where as the Learned trial Judge had meticulously reviewed the questions in the body of the judgment and found in favour of the Respondent.

Citing the cases of OSAFILE v. ODI (1990) 5 SCNJ 118 AT 132 and ONWUKA v. OMOGUI (2004) ALL FWLR (pt. 1060) at 1085 C.A, he urged the court to resolve their issue NO.3 in their favour as it is not every slip of the lower court that will result in the appeal being allowed.

On the submission by the Appellants’ Counsel that the court below granted the Plaintiff/Respondent the relief of reinstatement he posited that the Respondent did not request that he be specifically posted to a particular post as in ‘Ajide’s case cited by the Appellant’s counsel but simply asked that once his retirement was voided by the lower court he should be returned to his position before the purported retirement. He urged us then to hold that the order/reliefs were properly made, as there was nothing touching on the internal affair of the Appellants in the reliefs granted.

ON ISSUE NO. IV “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PLAINTIFF/RESPONDENT IS AN ACADEMIC STAFF HAVING REGARDS TO THE GENERAL CIRCUMSTANCE OF THE CASE” GROUNDS 6 AND 8 OF THE GROUNDS OF APPEAL)”, the Learned Counsel for the Respondent adopted the submissions on Issue Two and in addition argued that in the light of the documentary evidence of the parties, the lower court could only do justice to the parties by resolving the second question in favour of the Respondent. He recalled that the Appellants having taken/enjoyed the services of the Respondent as an academic staff for 23 years cannot be allowed to deny the Respondent that status. References were made to paragraphs 4, 5 and 6 of the affidavit in support and 4b, 6 and 7 thereof, which were not challenged, and on the authority of BEDDING VS. NEC (1992) 8 NWLR (Pt. 260) 428 these facts he further submitted are deemed admitted.

Learned Counsel again alluded to paragraphs 18 and 19 of the affidavit in support of the Originating Summons, Exhibits 9, 10 and 11 attached there to and pages 20 – 25 of the record of proceedings, the findings of the lower court at pages 547, 548 of the Records and the cases of UNION BANK VS. ISHOLA (2001) FWLR (Pt. 81) 1868 AT 1885 and OSHODI VS. EYIFUNMI (2000) FWLR (Pt. 8 at 271 to assert that the learned trial Judge painstakingly evaluated all the relevant documents and instruments before coming to its decision.

On the submission that the trial court based its findings on extraneous matters the Learned Counsel for the Respondent countered that payment vouchers from the Appellant’s Polytechnic, which offer concrete evidence of monthly deductions for Academic Staff Union thereof cannot be tagged extraneous documents particularly as they emanated from the Appellants.

On the polytechnic Law, Cap 120 Laws of Kwara State the Learned Counsel for the Respondent countered that there was nothing in that law or the Regulations which precluded the Respondent from being the Academic Staff and that section 2 of the said Law which was cited by the Learned Counsel for the Appellants necessarily includes both practical and theoretical teaching which the Respondent had been involved in for 23 years.

Placing reliance on section 132 of the Evidence Act, C. R. D. C. LTD v. OBONGHA (2001) FWLR (PT. 54) 353 AT 367, U. B. N. v. SAX NIG. LTD (1994) 8 NWLR (PT. 361) 150 AT 164 and NUHU v. FURURE LOCAL GOV.T (2004) FWLR (PT. 193) 277, it was further submitted by the Learned Counsel for the Respondent that the Appellants in paragraph 8.06 of their brief laboured surreptitiously to alter the content of Exhibit 18 with oral evidence through the argument of counsel that Exhibits I and 18 and the Polytechnic Law and the Regulations Governing the Condition of Service of Staff are at variance with each other.

He urged the court to hold that the Learned trial Judge was/is sight in holding that the Appellants erred in retiring the Respondent prematurely and resole their issue No, 4 in their Respondent’s favour.

Finally, on ISSUE NO. V OF THE RESPONDENTS which is WHETHER THE LOWER COURT WAS CORRECT TO HOLD THAT THE VISITOR TO KWARA STATE POLYTECHNIC WAS NOT A NECESSARY PARTY TO THIS CASE HAVING JOINED 1ST – 5TH APPELLANTS AS DEFENDANTS” the Learned Respondents’ Counsel answered the question in the affirmative and stated that the claim of the Respondent in the lower court could (and were) properly and effectively determined between him and the five Defendants and that the Governor of Kwara State is/was not a necessary party as the parties who may be likely affected by the result of the case (i.e. 1st – 5th Appellants) have been made parties to the suit.

References were made to the cases of GREEN v. GREEN (1987) 7 SCNJ 255 AT 268 – 270; PEENOK VS. HOTEL PRESIDENTIAL LTD (1983) 1 NCLR 122; BABAYEFU VS. ASHAMU (1998) 7 S. C. N. J. 158 AT 167 and ANABARONYE v. NWAKUBE (1997) 1 SCNJ 101 at 166 to contend that the Respondent claims that he was compulsorily retired from the services of the Appellants and that in any event if any person is to complain of non-joinder it is the visitor himself as was held in EBOADE v. ATOMESIN (1997) S. C. N. J; 13 AT 22.

In this case, the Learned Counsel submitted, all the issues and questions could be effectively determined and none of them could not have been determined without the joinder of the Governor. The joinder of the Governor he added would not serve any useful purpose.

Again, Counsel submitted that non-joinder or mis-joinder will not constitute a valid ground to defeat the proceedings more so as the Appellants have not shown how the nonjoinder occasioned a miscarriage of justice on them. On the introduction of Agency theory and the case of CARLEN v. UNIJOS as cited by the Appellants the Learned Counsel for the Respondent again dismissed them as irrelevant so is section 15 of the Kwara State Polytechnic Law which he also submitted was inapplicable in view of the enormous powers conferred on the 2nd and 3rd Appellants under section 7, 8 and 9 of the Law such that the joinder of the Council and the remaining 4 Appellants is adequate and the visitor is neither necessary nor desirable.

Issue 5 was therefore urged to be resolved in favour of the Respondent and for the judgment of the lower court to be affirmed.

In the Reply Brief filed by the Appellants’ Counsel, the Learned Counsel conceded that Ground 3 of the Grounds of Appeal has no particulars but argued that the ground is challenging the jurisdiction of the court, which can be taken in limine before the court. He further submitted that issue No.1 of the Appellants Brief cannot be struck out because it does not contain arguments on Ground 3, of the Ground of Appeal alone, but encompasses Grounds 1, 3 and 7 and the law is that the issue will stand with other related issues and that if necessary, it is only the argument relating to Ground 3 that would be struck out.

With respect to the objection to Ground 4 (the Omnibus Ground) the Learned Counsel for the Appellants argued that there was no prayer in the motion dated 3rd October, 2006, for the substitution of Ground 4 of the Original Grounds of Appeal and that mistake of Counsel in miss-numbering of the Grounds of Appeal should not be visited on the innocent litigant as the striking out of the Ground would amount to technicality more so, as issue No.3 does not relate to Ground 4 alone.

On the contention by the Respondent’s counsel that Grounds 5 and 8 do not relate to the findings of the trial court, he dismissed such contention as a misconception as a careful perusal of the Grounds of Appeal would reveal that they touch on the substance of the judgment and\or ratio decidendi which is the determination of the question as to whether the Appellant is an academic staff. He adopted paragraph 8.07 to 8.09 of the Appellant’s brief to submit that since the trial court held that there was no denial by the Appellants that the Plaintiff is an academic staff a ground of appeal alleging that if the trial court had dispassionately perused and considered their counter-affidavit it would have discovered that the Respondent was not an academic staff, cannot be said not be a ground of substance.

As for Ground 5 of the Grounds of Appeal the Learned Counsel pointed out that it relates to the conclusion reached by the trial court on the case before it and that such, conclusion cannot be said to be obiter as forms the basis for the grant of the reliefs claimed by the Respondent. Also, he further submitted, issue NO.4 of the Appellants’ brief is not on grounds 5 and 8 but on grounds 6 and 8 and is therefore unfair to dismiss the issue because of the complaint against one of the Grounds to which it relates, more so, as Ground 6 alone is sufficient to sustain issue four. On the whole he urged us to discountenance and dismiss the Respondents Preliminary Objection.

In response to the issues raised in the Respondent’s brief, Learned Counsel for the Appellants on Issue One went on to reargue but suffice it to say that he submitted that it was the Plaintiff/Respondents who first raised the plea of issue estoppel before the Defendants/Appellants took advantage of same in their reply and on the submission of the Respondents’ counsel regarding the way the issue of estoppel was raised, submitted that the Defendants/Appellants did not change same but only insisted that the issue of retirement age had been settled by Gbadeyan J. in suit No. KWS/53/2004 and is binding on every member of ASUP Kwara Polytechnic which the Respondent agreed he is a member.

He added on Issue 3, that the Respondent’s Counsel did not refer this court to any of the pages where the trial court carefully and scrupulously scrutinized the content of the documents placed before her in arriving at her conclusion.

On the contention of the Learned Respondent’s Counsel that a party is not allowed to alter the contents of a document through oral evidence under section 132 of the Evidence Act, the Learned Appellants’ Counsel submitted that such a contention is a misconception as there are exceptions to the rule on the ground of extrinsic evidence to prove illegality of contract or any other defence such as mistake in law or fact. RAFFLES VS. WICHELHUS (1959) E.R. 375, SUMTAS VS. HUGA (1981) LR 6 QB 597 and SHETTIMA VS. NWOKOYE (1991) 9 NWLR (PT. 213) 60 were relied upon for the above submissions.

Finally, on issue NO.5, the Learned Counsel for the Appellants stressed that contrary to the argument of the Respondent’s counsel at paragraph 6.01 of the Respondent’s Brief of Argument it is not for the visitor who is not aware of the suit to complain but the party sued who will be made to bear the burden he is not capable and competent to bear as the Appellants lack the capacity to comply with the judgment of the court hence they have the right to complain and explain to the court their incapacity.

On the whole he urged the court to discountenance the submissions of the Respondent’s Counsel and grant the prayers of the Appellants as contained in the Notice and Grounds of Appeal.

I have taken the time to summarize the submissions of counsel to both parties to the best of my ability in spite of their verbose and prolix nature. This is one in the series of cases between the Kwara State Polytechnic and her employees concerning their terms and conditions of service, which controversies arising there from appear not to have abated. The lot has fallen on us once more as it did in the case of THE RECTOR, KWARA STATE POLYTECHNIC & 3 ORS v. MR. OLA ADEFILE & 2 ORS (For themselves and on behalf of all members of Academic Staff Union of Kwara State Polytechnic), which emanated from the High Court of Kwara State in suit NO. KWS/53/2004 and was designated in this court as Appeal No. CA/IL/50/2005.

Coincidentally, the judgment in suit NO; KWS/53/2004 has reverberated in this present appeal as can be gleaned from Ground One of the Appellants Grounds of Appeal and the corresponding Issue One of the Appellants’ Brief of Argument.

Before delving into the submissions of counsel on their respective briefs of argument let me state from the onset that the preliminary objection raised by the Respondent’s Counsel and the Grounds of upon which they are predicated are highly technical frivolous and academic.

In the first place the Respondent’s counsel quarreled with Ground 3 which according to him lacked particulars and cited SOMAI SONKA LTD v. ADZEGE (2001) 1 FWLR (Pt. 68) 1104 where Mohammed JCA held that a ground of appeal without particulars except such a ground is omnibus or such particulars are embedded in the ground, is no ground at all. In our instant case the Learned Counsel for the Appellants has in my view aptly submitted that Ground 3 is on the issue of jurisdiction, which can be raised in limine. I am in total agreement with the Learned Appellants’ Counsel that jurisdiction being a threshold issue can be raised whether up or down or in any manner or even by the court suo motu, provided that such an issue is settled first by the court before proceeding to consider other issues that may arise from the case. This is because as has been decided in a long line of cases if the court lacked jurisdiction from inception of the case but proceeds to determine same, the entire proceeding amounts to a nullity no matter how brilliantly conducted. See MADUKOLU V. NKEMDILIM (1962) SCNLR 341; OBIMONURE VS. ERINOSHO (1966) 1 All NLR 250; and SKENCONSULT VS. UKEY (1981) 1 S.C. 6.

I am of the view that with Ground one touching on touching on issue estoppel and its particular (iv) raising the issue of jurisdiction, Ground 3 of the Grounds of Appeal is even a surplusage, for if this court decides that the court was by the doctrine of estoppel precluded from entertaining the claim of the Respondent, then the entire proceedings becomes a nullity.

Moreover, issue No. 1 relates to other Grounds apart from Ground 3 and the said Grounds 1 and 7 to which it is related are arguable and sustainable. Ground 1 of the preliminary objection is discountenanced.

On the contention that Ground 4 (the omnibus) has been displaced and abandoned, I am of the view that the Learned Counsel for the Appellants has explained away that the miss-numbering was the mistake of counsel, which should not be visited on an innocent litigant. More so, the application for amendment dated 3rd October, 2006, did not request for amendment of Ground 4 of the original Ground. It simply said that it “sought to be made by the adding of a new grounds of appeal and numbered as Grounds 4, Ground 5, Ground 6, Ground 7, Ground 8 and Ground 9 respectively.”

There will therefore be no justification for the striking out of the issues formulated in respect of the grounds, which I consider competent. Ground 3 of the objection is equally non sequitur.

On Grounds 5 and 8 of the Appeal, I cannot see my way through such objection particularly as the first complains about error in law committed by the court below in granting all the reliefs, and particulars there for spell out the questions for determination and the wrongful exercise of the court’s adjudicatory powers which according to them occasioned a miscarriage of justice. On Ground 8, the findings of the court that the Defendants did not deny that the Plaintiff performed the duties of academic staff and that they did not dispute the Plaintiffs affidavit must have been one of the ratio decidendi which prompted the grant of all the reliefs of the Plaintiff.

I am of the candid view that the Grounds of Appeal as couched relate to the issues determined in the lower court and all the authorities cited by the Learned Counsel for the Respondent are inapplicable to the circumstances of this case. Accordingly, I shall not hesitated to dismiss the preliminary objection of the Respondent more so as the Learned Respondent’s Counsel had copiously responded to the arguments of Appellants’ Counsel on all the grounds and issues formulated which are not different except for the juxtaposition of the wordings. See issue numbers 1 – 5 of the Appellants and numbers 1 – 5 of the Respondent. Accordingly, I shall consider and determine this appeal on the issues formulated by the Appellants since they are the ones aggrieved by the judgment of the lower court.

ON ISSUE NUMBER 1, WHETHER THE DECISION IN SUIT NO. KWS/53/2004. OLA ADEFILA & 2 ORS VS. RECTOR KWARA STATE POLYTECHNIC & ORS DOES CREATE ISSUE ESTOPPEL TO BAR THE RESPONDENT FROM RE-LITIGATION ON THE ISSUE OF STATUS AND RETIREMENT AGE OF MEMBERS OF ACADEMIC STAFF UNION OF THE POLYTECHNICS (ASUP), KWARA STATE POLYTECHNIC CHAPTER (GROUNDS 1, 3 AND 7).

Learned Counsel for the Appellants opined that the Respondents suit was caught by the doctrine of issue estoppel and by the decision in suit No.KWS/53/2004 OLA ADEFILA & 2 ORS VS. RECTOR KWARA POLYTECHNIC & ORS the Respondent can no longer re-litigate on the issue of retirement age, consequently, the learned trial Judge lacked the jurisdiction to entertain the suit.

On the other hand the Learned Counsel for the Respondent argued per contra that the Respondent’s suit was not caught by the doctrine of issue estoppel, in that the case of the Respondent in his originating summons was as to whether the Plaintiff/Respondent who was then 58 years old could be retired from the service of the Appellants when he was yet to attain the age of 60 or 65 years. Issue Estoppel is a specie of estoppel per record which is popularly know as estoppel per rem judicatum and it precludes a party from re-litigating upon an issue and subject matter which had previously been decidedly and finally settled by a court of competent jurisdiction between the same parties one way or the other.

This rule of law is encapsulated in the twin Latin maxims:-

(a) “Interest rei publicae ut sit finis litium” meaning that it is the common good that there should be an and to litigation and;

(b) “Nemo debet bis vexari pro una et eadem causa” – No man should be sued twice on the same ground or that no one should be twice vexed for one and the same cause”

The principle of law emanates from our adversary system of adjudication the essence of which is that until an issue is decided by a competent court between distinct parties, the issue remains subject to litigation in futuro once called upon for determination. See the cases of MERCANTILE BANK OF NIGERIA LTD VS. ABUSONWAN (1986) 2 NWLR (PT.22) 270. UDO & ORS VS. OBOT & ORS (1989) 1 NWLR (PT. 95) 59, CARDOSO v. DANIEL & ORS (1986) 2 NWL.R (PT.20) 1.

For the doctrine of estoppel per rem judicatam to apply the party pleading it must show the following:

(a) That the parties to the two proceedings are the same in the previous suit and the one sought to be re-litigated and the term ‘parties’ include privies to the parties named in the writ.

(b) The issues and subject matter of the two proceedings must be the same, as estoppel will not operate even if the parties in both suits are same but the issues and subject matter are different. See NKANU v. ONUN (1977) 5 S. C. 13, OTIKO VS. OKONKWO (1970) 1 ALL NLR 80.

(c) There must be a valid and subsisting judgment. See EKPE v. CHIEF ANTAI (1944) 10 WACA 19, ALAO v. AKANO (1988) 2 NWLR (PT. 78) AT 581.

(d) The issues and subject matter must have been finally settled in the previous case by a court of competent jurisdiction.

In this case since the contention of the Appellants is that the present suit is caught by issue estoppel in that the issue of retirement age of academic staff has been settled by Gbadeyan J. and that the Plaintiff/Respondent by his showing purports to be a member of the Academic Staff Union of the Kwara State Polytechnic (ASUP) and he cannot re-litigate on the said issue which had been previously decided by a court of competent jurisdiction, it is only proper to look at the controversies in the earlier proceedings and the current one which is the subject of this appeal. See OFUNNE v. OKOYE (1966) 1 ALL NLR 94.

In suit No, KW/53/2004 which was decided by Gbadeyan J., Mr Ola Adefila & 3 Ors for themselves and on behalf of the academic staff union of Kwara state polytechnic sued the Rector of the Polytechnic, the chairman Governing Council of the Polytechnic, and the Attorney-General of Kwara State for amongst others; a declaration that the Defendants cannot reduce the retirement age of Academic Staff from 65 years to 60 years and for a perpetual injunction to restrain them from so reducing the retirement age of the academic staff from 65 years to 60 years except as may be directed by the National Board for Technical Education.

In the present suit, the questions for determination in the origination summons are:

“(1). Whether from the relevant available documents the regulations governing conditions of service of Senior/Junior staff of the Polytechnic, the Polytechnic Law, Cap 120, Laws of Kwara State 1994, the plaintiff can be retired compulsorily by the Defendants from the service of 1st Defendants.

“(2). Whether on the proper construction and interpretation of the documents attached to the affidavit herewith, Regulations Governing Conditions of Service of Senior/Junior staff of the Polytechnic, the Polytechnic Law, Cap 120, Law of Kwara state 1994, the plaintiff is an academic staff and if so whether he can be retired from the service of the 1st Defendants when he is yet to attain the age of 60 years or 65 years”.

As for the reliefs sought from these questions they include:

“1. A declaration that the compulsory retirement of the plaintiff from the services of the 1st Defendants as communicated to the plaintiff in the Defendants’ letter dated 19th May, 2004 and 16th July, 2004 respectively is ultra vires null, void and of no effect whatsoever.

“2. An order setting aside the said compulsory retirement as contained in the Defendants’ letter dated 19th May, 2004 and 16th July, 2004 respectively to the plaintiff.

“3. A declaration that f/le plaintiff is still in the service of the 1st Defendants and is entitled to his salaries allowances and other entitlement of his office from May 2004 till the day of judgment in this case and henceforth thereafter.

“4. An order compelling the Defendants to reinstate the Plaintiff to his position as Chief Technologist with the Defendants.

“5. An order compelling the Defendants to pay the Plaintiffs his salaries, allowances and other entitlements from 2004 till the date of judgment in this case and hence forth thereafter, until the Plaintiff retires from services.

“6. An order restraining the Defendants, their agents, servants, privies or anybody acting on their instructions from further disturbing the Plaintiff until he duly retires”.

The parties are however Mr. A. O. Oyebanji v. Kwara State Polytechnic, Ilorin, Governing Council of the Polytechnic, the Chairman Governing Council of the Polytechnic, the Rector Kwara State Polytechnic, Ilorin and the Registrar of the Polytechnic.

To further establish whether this present suit is caught by the doctrine of issue estoppel a gist of the facts in the cases are necessary.

In suit No.KWS/53/2004 the 3rd Plaintiff Mr. J. A. Aransiola was served with a notice of compulsory retirement subject/pursuant to chapter 15.1 of the Staff Regulations of the Polytechnic, which states that the retirement age of employees of the institution was 60 years. Mr. Aransiola (then the Acting Director of Institute of Administration) endorsed the letter to the 1st plaintiff who was then the chairman of ASUP Kwara state Polytechnic. The 1st Plaintiff then wrote to the Defendants rejecting the retirement as contrary to the Federal Ministry of Education Policy on retirement Age of Academic Staff of Polytechnics and other tertiary institutions. Circulars to that effect and Collective Agreements entered into by ASUP and Government of Kwara State for the implementation of the above policy were tendered and it appeared that the issue of retirement age was settled in 2002 but in 2004 prior to the filing of the suit, the issue of retirement age was again resurrected hence the said suit was filed by the plaintiffs and the Learned trial Judge Gbadeyan J. confirmed the claim of the plaintiffs that retirement age for academic staff was 65 years. That judgment was confirmed by this court by a majority of two to one of the panel.

On the other hand, the facts of the present suit as can be gleaned from the records and particularly the parties’ affidavits, are that the Plaintiff/Respondent was a staff of 1st Appellant and was employed in 1972 by virtue of Exhibit One a letter dated 30th October, 1972, and by another letter dated 1st April, 1980, Exhibit 18, the Plaintiff was given another appointment which on the face of the letter showed that he was an academic staff.

According to the Plaintiff, by the fact the affidavit annexures in support of the originating summons it was revealed that he performed academic duties for over 23 years and received recognition for such duties by the Appellants paying him salaries and allowances for that status. The Plaintiff however served a letter of premature retirement dated 19th of May 2004 (Exhibit 12) Upon receipt of the letter he protested to the Appellants that he had not attained the of 65 for retirement of academic staff or even 60 years which is the purported retirement of all staff of the Polytechnic, he being only 58 years then. By Exhibits 8 and 9, the Defendants/Appellants wrote to the Respondent confirming the retirement and also that the 65 years for academic staff did no apply to him.

The Plaintiff then claimed that the Appellants were estopped from denying his academic status, retiring him prematurely and denying him the benefit of retiring at 65 years of age.

The Appellants on their part contend in their statement of facts and counter-affidavits that the Plaintiff now the Respondent was in 1972 appointed by the 1st Appellant as a Laboratory Technician in the Department of Basic Studies and was subsequently promoted to Chief Technologist. According to them, the Respondent despite his promotion did not belong to academic staff by his appointment as his appointment is governed by the Regulations Governing Conditions of Service for the 1st Appellant and the Civil Service Rules being employee of the agent of Kwara State, and ipso facto a civil servant with the Kwara State Civil Service Commission Ilorin since 1966, before the merger of his service with that of the 1st Appellant.

They also contend that having attained the age of 35 years in service, the Appellants in 2004 retired him but the Respondent deliberately refused to retire relying on the fact that he has been recognized by the Appellants as one of her academic staff and/or lecturer whose retirement age should be 65 years instead of 35 years applicable to civil servants. When the Appellants compulsorily retired the Plaintiff/Respondent, he then instituted his action.

After counsel on both sides had addressed on the issue of estoppel and in spite of the fact that counsel were ad idem that the issue of retirement age of academic staff had been settled by Gbadeyan J. in suit No KWS/53/2004 and that the court should not dissipate any further energy on the issue (see page 5 lines 19 – 34 to page 6 lines 1 – 6 of the Record and page 6 lines 23 – 30), the court held:

“I have gone through the originating summons filed in suit No. KWS/53/2004 and the judgment in that case and I am of the firm view that the issue that was decided in that case was what should be the retirement age of academic staff at the Kwara State polytechnic. By the judgment in that suit the age was put at 65 years careful perusal of the originating summons and the affidavit and counter affidavit filed in the present suit it is my view that what the plaintiff is seeking the court to determine is that he is an academic; Staff of the Kwara State Polytechnic and as such he is privy to the judgment of Gbadeyan J., the action having been instituted on behalf of academic staff of Kwara: State polytechnic, Ilorin. The present suit was instituted because the plaintiff feels, he has not been treated as an academic staff.”

The Learned trial Judge continue that the issue for determination in the present suit is completely different from the earlier one in that while the former was for the determination of the age of retirement of academic staff the present one is for the determination of the status of the Plaintiff.

I must confess that I am in quandary as to the difference between status and age as used by my Lord Ojo J. From my assessment of the reliefs claimed and the questions for determination, there is no doubt that in the claim of the Plaintiff in this suit, he is saying that by virtue of the fact that he is an academic staff he was not to be retired until the had attained the age of 65 at most 60 which are the prescribed retirement ages of academic staff by the Regulations Governing his Conditions of Service, the Polytechnic Law Cap. 120 and other documents annexed to his affidavits in support of the originating summons.

Consequently, having been compulsory retired without attaining the age as stipulated, the retirement should be set aside, and that he be reinstated as if he is still in the service of the 1st Defendants and paid all his entitlements from the day he was purportedly retired. Furthermore, the Defendants should be restrained along with their agents, servants, privies or those acting upon their instructions from disturbing him until he (Plaintiff/Respondent) duly retires from service of the 1st Defendants.

If counsel on both sides agree that the retirement age of 65 years for academic staff had been settled then there is nothing for the Appellants to contest except the question as to whether the Respondent was/is an academic staff or not so as to be retired like any other civil servant or ordinary staff of the Kwara State Polytechnic. The above position notwithstanding it would appear from a careful perusal of paragraphs 12 and 14 of the Reply to the counter-affidavit of the Appellants that there are more things than meet the eyes than issue estoppel. The Appellants had in their counter-affidavit averred in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 30, 34 and 35 and by Exhibits KP4A, KP5B and KP5C, KP6A and KP6B, KP9A – KP9E, and KP10 that the Plaintiff/Respondent was never employed as an academic staff and had no qualification to be so employed.

2. That the 1st Defendants can lawfully engage any of her staff (including the plaintiff and whether academic staff or not) to discharge such lawful duties to enhance effective and productive learning but such would not change the status of the staff from that which is contained in his letter of appointment and that the appointment of the plaintiff is governed by Regulations Governing Conditions of service for senior and scheme of service for the 1st Defendants;
3. That the Plaintiff’s employment is also governed by the Civil Service Rules, he being an employee of the Kwara State Government and ipso facto a civil servant;
4. That by the 1st Defendants’ scheme of service the plaintiff was appointed into the Technical Technologist Cadre and that up to his retirement he did not apply to change his cadre and was not granted same as he does not possess the qualification to convert him to the lecturer’s cadre which is first degree in his area of specialization while the holding of Diploma Certificate, City and Guilds, FTC of Technical Teachers College Certificate are the qualifications for the Plaintiff’s cadre;
5. That practical teaching is part of the schedule of duties of a person employed in the Plaintiff cadre; and
6. That teaching of practical skills to student’s in classes, setting and marking examinations and conducting researches and related duties by the Plaintiff does not make him academic staff;

Then, in paragraph 21 of the counter affidavit, in spite of the admission by the Appellants that the issue of retirement age is res judicata same having been determined by Gbadeyan J, they turned summersault and contended thus:-

“21. That I know as a fact that the issue of 65 years academic staff which is a product of collective agreement between the Federal Government and Academic Staff Union of Polytechnic (ASUP) has not been agreed upon by the 1st – 2nd Defendants and Kwara State Government and same has not been incorporated into the condition of service between the 1st Defendants and the Plaintiff which contains; 35 years of service or 60 years as retirement age.”

Based on this averments the plaintiff/Respondent in paragraphs 12 and 14 of their reply which for the avoidance of doubt is reproduced hereunder raised the plea of res judicata or issue estoppel thus:

“12, That the issue of status and retirement age of academic staff of the Defendants has been settled by the High Court of Kwara State presided over by Hon. Justice J. F. Gbadeyan in a suit between the union and Defendants in the case. The said case is KWS/53/2004: –

Mr. Ola Adefila & Ors (for themselves and on behalf of all members of academic staff union of Kwara State Polytechnic) vs. The Rector Kwara State Polytechnic & 4 Ors.

14. That Wahab Ismail Esq, of counsel and one of the Lawyers in the chambers of Messers John Olusola Baiyeshea & Co. my solicitors in this case informed me in his office at NO.1, Sokoto Raod, Sabo-Oke, Ilorin on 31st January, 2005 and I verily believed him as follows:

(i) That the said judgment is binding on the Defendants in this case and they cannot deny it

(ii) That as a member of the academic staff Ilorin union of Polytechnic (ASUP) of the Defendants’ school, I can also take/enjoy the benefit of the said judgment.

(iii) That the court gave judgment in the said case that the retirement age of academic staff of polytechnics including the 1st Defendants is 65 years and the Defendants were perpetually restrained from retiring academic staff that have not attained the age of 65 years.

(iv) That I was wrongfully retired from service on May 17th 2004 after the Defendants had become aware of the pendency of suit No.KWS/53/2004, which was filed by our union against them on 19/4/2004.

(v) That the Defendants should not have retired me while the said suit was pending as one of the crucial issues was the determination of retirement of academic staff (among other things) which was eventually decided in favour of our union.”

The Respondent further deposed in paragraphs 15 to 17 of the said reply to the counter-affidavit that because of the said judgment the Defendants have not been able to retire more than 20 academic staff who are 60 years but have not attained 65 years which is the known retirement age for academic staff.

He also denied that the employment of staff of the Defendants is governed by the Civil Service Rules but rather by the Polytechnic Law and Staff Regulations annexed as Exhibit 20.

In answer to the averments in paragraphs 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the counter-affidavit the Plaintiff/Respondent stated that the Defendants are aware of his academic staff status and/or category and that the purported notice of retirement was an error and he was recalled and paid his salary.

I have to categorically state here that the Appellants cannot blow hot and cold at the same time having raised the issue of 65 years retirement age which had been settled, the plaintiff/Respondent was on firm ground to have pleaded issue estoppel in that respect. This is the essence of the dictum of Ayoola JSC in the case of ADONE v. IKEBUDU (2001) FWLR (PT. 72) 1893 AT 1906 where he held:

“Where the specie of res judicata relied upon by a plaintiff is issue estoppel the proper place for the plaintiff to raise the question is in the reply to the statement of defence after the issues arising there from in the case up to the stage of defence would have been ascertained and the Plaintiff would have been in a position to know and state with clarity the issue he would contend the Defendants is precluded from raising by virtue of a judgment in a previous action.”

Going by the above decision, the Defendants/Appellants who ought to have used estoppel as a defence mechanism rather used it as a weapon of attack. In other words they are saying, that in spite of the judgment in the previous case on the status and retirement age of academic staff which judgment was against them, they would persist in disobedience of the judgment and the Plaintiff/Respondent cannot come to court to press for the benefit of that judgment. Surely, this cannot be intendment of the doctrine of Res Judicata.

In EGBE VS. ADEFARASIN (HON. JUSTICE) 1987) 1 NWLR (PT. 471) 1, It was held that estoppel is but a part of the law of evidence and is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. An estoppel is thus either a mine layer or minesweeper. It is never a capital unit. See Udo vs. Obot supra at page 68 per Oputa JSC. See generally, “A case Book on Law of Evidence” 1st Edition at page 194 by Justice Niki Tobi.

What emerges from the entire analysis of the situation we find in this case is that it is the Defendants/Appellants who shall be barred from further pleadings or giving the evidence in paragraph 21 of their counter affidavit as that defence would rather avail the Plaintiff/Respondent.

Having admitted in their submission at the lower court and adopted the position of the Learned Counsel for the Plaintiff/Respondent, the Appellants are the ones who are deemed to have admitted that they were precluded from re-litigating on the issue of 65 years retirement age for academic staff.

It is on this score that I accept the reasoning of the Learned trial Judge at pages 5 and 6 of Records that among other things, what the Plaintiff seeks in this case as can be gleaned particularly from paragraphs 12 – 17 of the reply to the counter-affidavit is to benefit from the judgment in suit No. KWS/53/2004 in which he was a party by privy by virtue of being a member of academic staff of Polytechnics, Kwara State Polytechnic, Ilorin and therefore he ought not to be retried at the age of 58 as the Appellants have done, hence, his institution of this action.

With the greatest respect to the Learned Counsel for the Appellants the cases cited to buttress the contention that the court lacked jurisdiction are in-applicable as his submissions were grossly misconceived.

I hold that the trial court had the jurisdiction to entertain the case and he rightly held that the case of the Respondent was not caught by the doctrine of issue estoppel. Grounds 1, 3 and 7 and the issues formulated thereon shall fail and are hereby resolved against the Appellant.

Issue No.4 shall be considered next to the issue of estoppel in that the Grounds therein question WHETHER THE TRIAL COURT RIGHTLY HELD AND DECLARED THAT THE RESPONDENT IS, AN ACADEMIC STAFF ON THE GROUNDS THAT APPELLANT DID NOT DENY THAT THE RESPONDENT PERFORMED DUTIES OF AN ACADEMIC STAFF ESPECIALLY WHEN THE RESPONDENT DID NOT ASK FOR SUCH PRAYER.

(GROUNDS 6 AND 8).

To answer this question it is only fit and proper to have recourse to the affidavits and counter-affidavits of the parties and documents exhibited to prove or disprove each other’s case, and in particular, question No.2 for determination which was whether by the construction and interpretation of the Regulations Governing Conditions of Service of Senior/Junior Staff of Polytechnic, the Polytechnic Law Cap. 120 1994, and the documents attached to the affidavits the Plaintiff is an academic staff and if so whether he can be retired from the service of 1st Defendant when he is yet to attain the ages of 60 or 65. See also the reliefs claimed by the Plaintiff/Respondent at page 2 of Records.

Paragraphs 4B, 5, 6, 7, 8, 12, 13, 15, 16, 17, 19, 23, 24, 27 and 28 of the Respondent’s affidavit copiously aver that Respondent went for further studies in Britain in science and Technology and Glass blowing training and acquired further knowledge and experience in the area of science technology as a result of which he was re-designated as Technologist II. Exhibits 2B and 2C, 3 and 5A speak for themselves. The Defendants offered the Plaintiff fresh appointment in the Department of Chemistry as an Academic staff in the position of Technologist in October, 1980 by Exhibit 3 at a time the Defendants were just introducing the National Diploma Courses in Laboratory Technology at both ND and HND levels and teachers for those newly introduced courses of whom the Plaintiff/Respondent was one were greatly needed.

The Plaintiff/Respondent further averred as follows:

a) That the approval and accreditation of those courses were conditional upon employing technology lecturers thus the Respondent’s second letter of appointment, which contained conditions, meant for academic staff of the 1st Defendant.

b) That the new appointment heralded in additional responsibilities as the newly introduced courses demanded both the theoretical and practical skills in general Laboratory and Glass blowing Techniques.

c) That all along the plaintiff performed all academic functions including teaching students in classes setting and marking examinations conducting researches and other related duties in accordance with National Board for Technical Education syllabus and 1st Defendants academic guide lines.

d) That pursuant to paragraphs 7, 8, 9, 10 and 22 of the affidavit in support, the Defendants had known and accepted him as an academic staff in the 1st Defendants’ school which is the truth of the matter.

e) That the N. B. T. E. had at various times issued directives and guide lines regulating the affairs of polytechnics including the 1st Defendant and NBTC has variously resolved that Technologists in actual teaching should be taken as academic staff, the category of which he belonged.

The Plaintiff/Respondent also annexed the “Request by the 1st Defendants for Memorandum on why Technologist in Actual Teaching and Lecturing are Academic Staff” and the “Acceptance and Response” respectively in 1994 from the 1st Defendant marked Exhibits 6 and 6A. A letter to the Defendants from the Head of Service of Kwara State with Ref. No. PEN/36/S17/22 dated 5th October, 1999, and another letter on Re-Harmonization of Retirement Age of Academic Staff of Polytechnics and Colleges of Education Ref. HME/FME/216NOL.1/13 which also applies to him was also tendered along with an “Internal memorandum”( Exhibit 11) written by the Defendants to the effect that the Plaintiff was erroneously retired. The letter is dated 25th October 2002.

To also prove that he is an academic staff, the letter of fresh employment (Exhibit 8 or C) dated 1st April, 1980 and referenced REF/F/678 from the 1st Defendant’s Registrar states in paragraph 4 that:

“4. Other relevant conditions in your original letter of appointment remain unchanged, except that three months notice of resignation in the case of academic staff must terminate with the end of academic session.” Exhibit 6A captioned “PAYMENT OF ACADEMIC ALLOWANCE TO THE TECHNOLOGIST” with reference REG/SE/ESTAB/19 dated 1st February 1994 and addressed to THE BURSAR of the 1st Defendant clearly states thus:

“Sequel to the memorandum submitted by the Polytechnic Technologists Staff on the above subject matter, I am directed to convey Rector’s approval for the payment of academic allowances to the following Technologist who are involved in teaching with effect at from 1/2/93:

S/NO NAME POST DEPARTMENT

2.A O.OYEBANJI Asst. Chief Tech. Chemistry

The Plaintiff/Respondent is No.2 in the above letter.

Exhibit 11; the “Internal Memorandum” dated 25th October 2002 emanating from the Bursar to the Ag. Rector and captioned. “REQUEST” FOR APPROVAL FOR CONTINUATION OF PAYMENT OF SALARY OF 3 ACADEMIC STAFF (ATTAINED 60 YEARS OF AGE) states”

“We received retirement letters from Registrar in respect of three academic staff who had attained the age of Sixty (60) years. Affected Staff are Mr. Ayansiola J. A. Sec. Admin, Mr. A. O. Oyebanji (Chemistry Dept) and Mr. Adetohumu J. A of Electrical Department.

“The salary of Oyebanji has since been stopped. Even though there was a circular which extended the retirement period to 65 years and also contained in the agreement reached between Federal Government and ASUP on this age of retirement, the chairman wanted us to obtain clearance or confirmation on this from the Government even though this response from government has not been received, at a meeting we (chairman of Council/Ag. Rector, Bursar) held at chairman’s office it was agreed in principle that we should continue to pay these salary pending the times we will receive a response from government. In the light of this would like to have written authority from chairman of council, through you (Ag.Rector) so that we continue to pay their salary as earlier agreed verbally.”

It would appear from the tenor of this letter that the 1st Defendant and indeed all the Defendants had dealt with and recognized the Plaintiff/Respondent as academic staff.

Even the pay advice tendered by the Registrar among other documents clearly show that the Plaintiff/Respondent received the following allowances to show that he was/is an academic staff:

9. Academic journal allowance
10. Examination supervision allowance
11. Research allowance
12. Learned society allowance
13. Industrial supervision allowance”.

The Defendants/appellants insist that the Respondent’s conditions of service are regulated by Exhibit 21 (ASUP 17 – 22) and the Polytechnic Law Cap. 120 Laws of Kwara State 1994 which Appellants’ counsel substituted the learned trial Judge did not consider in his judgment.

Now, it is only fair to look at the other side of the case. I had earlier reproduced the averments of the Respondent, which tended to show that he was accepted as academic staff. I had also on issue Number One reproduced the salient averments of the Appellants which tended to show that at all times material to the appointment of the Respondent and his retirement, he was of the Technical Technological cadre without the basic qualifications to be converted to a lecturer even though he had carried out some academic duties and was paid entitlements akin to those of academic staff. Besides, his check-off dues were deducted and paid to the Academic Staff Union of the Polytechnic, Ilorin. See the averments in paragraphs 8, 9, 10, 11, 12, 13, 14 – 25, 30, 34 and 35 of the counter affidavit where the Appellants also alleged that it is the Civil Service Rules that govern the Service Conditions of the Respondent.

A look at section 2 of the Polytechnic Law would reveal that it defines “Academic staff” to mean” members of the Polytechnic whose sole or primary duty is teaching.” Although, the Learned Counsel referred us to the Regulations and the law governing the conditions of service no particular sections were mentioned. The entire record is jumbled as far Exhibit 21 is concerned and one cannot point to the exact section that relates to the service conditions of the Plaintiff. The court below may have relied on what were before her as have also been reproduced in this court. His Lordship had held after considering the totality of the evidence before her and I agree totally with her that all the facts deposed to by the Respondent were backed by documents and that it was significant to note that the Defendants have not denied the existence of all the documents relied upon by the Plaintiff and also not denied that the Plaintiff performed duties of academic staff and was paid Salaries and allowances for that.

He further posed the pertinent question as to whether having used the Plaintiff as an academic staff paid him and treated him as such, the Defendants can turn round to deny that he was one. I also agree with his reasoning that by the doctrine of estoppel per conduct and the cases of TIKATORE (1973) 1 & S.C. 79 AT 91 – 94 and MORGATE CO. LTD VS. TWITCHINGS (1975) 3 ALL E.R. 314, AT 325\3 E.T.C. relied upon by him, the Appellants having by their words and conduct led the Respondent to believe in a particular state of affairs, it would be unconscionable for the Appellants to deny that they encouraged the Respondent to act to his detriment.

I am also of the view that the allegation that Respondent did not ask to be declared as an academic staff as contended by learned counsel for the Appellants is erroneous and misconceived in the light of question Number Two for determination and the relieves sought by the Plaintiff/Respondent in the originating summons. The trial court therefore rightly held and declared that the Respondent is an academic staff because the Appellant did not deny that the Respondent performed the duties of an academic staff.

Even if, as counsel for the Appellants had argued, the conditions of service are governed by regulations, once the Appellants have committed themselves into writing as they have done in this case they are deemed to have incorporated the new terms to their contract and Conditions of Service See SADAR VS. RIDEHALGH (19310) CH. 301 AT 303 Per Romer J. See generally section 151 of the Evidence Act and UKAEGBU VS. UGOJI (1991) 6 NWLR (PT. 196) 127 and IGA VS- AMAKIRI (1970) 11 S.C. 12 – 12.

On the whole, I am unable to disturb the findings of the learned trial Judge, which I consider unassailable from the totality of the evidence before him. Grounds 6 and 8 can therefore not stand. Issue No.4 is also resolved in favour of the Respondent. Issue NO.2, which is WHETHER IT WAS RIGHT FOR THE LOWER COURT TO HEAR AND CONCLUDE THE CASE BY ORIGINATING SUMMONS WHERE THERE ARE CONFLICTS AND/OR SUBSTANTIAL DISPUTE OF FACTS IN THE AFFIDAVIT.

(GROUND TWO)

Appellants’ counsel have submitted that there were substantial disputes of facts warranting the court to order for pleadings to be filed. Respondent counsel argued to the contrary. Learned Counsel for the Appellants has referred us to the affidavits filed in the lower court, which he described as conflicting particularly on the issue of the nature of employment of the Respondent and his status. Paragraphs of the affidavits of the parties were reproduced to insist that there are contentious issues from the affidavits and since the case has to do with the status of an employer it should not have been commenced by originating summons.

Counsel for the Respondent have on the other hand referred us to the claim of the Plaintiff and the questions for determination which essentially revolve around the construction of the bundle of documents annexed to the affidavits of the parties and that parties sought the construction of the avalanche of documents annexed to the affidavits. Furthermore, the parties tendered the certified true copies of Exhibits 1 – 29.

The High Court (Civil Procedure) Rules of Kwara State by Order 1 Rule 2 (2) provides that:

“(2) Proceedings may be begun by originating summons where:-

“(a) The sole or principal question at issue is, or is likely to be, one of the construction of a written law or any instrument made under any written law, any deed, will, contract or other document or some other question of law; or

“(b) There is unlikely to be any substantial dispute of facts.” See also Order 6 Rules 1 to 10 of the Rules.

The originating summons is no doubt an extra-ordinary process, which was hitherto unknown to Nigerian jurisprudence until recently when it was incorporated into the Civil Procedure Rules of our High Courts. See L. E. D. B. VS. D. A. AWODE (1955) 21 N.L.R. 80, ADEMILUYI ANOR VS. A. C. B. LTD (1965) N. M. L. R. 24, where the courts held that if it is not clear as between the commencement of action by writ or by originating summons, the former should be preferred. In DOHERTY VS. DOHERTY (1968) NMLR 241; NATIONAL BANK OF NIGERIA VS. AYODELE (1978) 9 & 10 S. C. 59 the Supreme Court held that where facts are in dispute and the proceedings are hostile the procedure of originating summons should not be adopted. See the recent case of FAMFA OIL LTD VS. A. G. FED. (2003) 18 NWLR (PT. 852) 453 AT 467 paras D – G where the Supreme Court again, on the nature and purpose of originating summons, quoted with approval the dictum in Doherty vs. Doherty supra and stated inter alia:

“It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of rights. If there are serious disputes as to facts, then a normal writ must be taken out and not originating summons.

In matters where facts are not in issue, the originating summons, which must be supported by affidavit of fact must be taken out and will become operative once a judge in chambers has signed it thus giving direction for its service (Doherty vs. Doherty (1968) NWLR 144” Per Belgore JSC (as he then was).

A proceeding wrongfully, commenced by originating summons may be permitted by the court for parties to carry on as if the suit was carried out by a writ of summons. See Din vs. A. G. of Federation (1986) 1 NWLR 471 and TAIWO VS. OKEOWO (1983) 7 S.C. 85.

Against the foregoing background, we shall now consider whether the learned trial Judge was right in allowing the case to be heard on the originating summons procedure and same concluded in spite of the preliminary objection raised by the Learned Counsel for the Defendants/Appellants.

I think the Learned Counsel for the Respondent has appropriately given us the guideline as to how to determine whether there is such a dispute so as to warrant cases to be or not to be heard by way of originating summons, which is by a careful examination of affidavit evidence of the parties and documentary exhibits attached thereto. He was on firm ground when he stated that the annexed documents provide anchor upon which depositions in the affidavit would be considered since oral depositions cannot challenge or over ride the contents of a document. The cases of FIRST BANK VS. MAY CLINIC (2001) 4 S.C.N.J. 1 at 12, NDADUGBA vs. NWOSU; NANA IMPEX LTD VS. AWUKAM and SHIPCARE LTD. VS. OWNERS OF M.V. FORTUNATO (2003) FWLR (Pt.179) 1238 at 1256 cited by the Learned Counsel are quite instructive and we are properly so guided by them.

Now, a look at the questions for determination and the reliefs sought by the Plaintiff in his originating summons clearly demonstrate that the gravamen of this case is “whether by the proper construction and interpretation of relevant available documents, Regulations Governing Conditions of Service of Senior/Junior Staff of the Polytechnic, Polytechnic Law Cap. 120 Laws of Kwara State 1994”, the Plaintiff is an academic staff who can be retired from the service of the 1st Defendant when he is yet to attain the age of 60 or 65 years.

The documents sought to be so construed and interpreted have been annexed to affidavits of the respective parties as directed by the rules and given judicial flavour by the Supreme Court cases earlier cited. What then are the disputed facts, which must be resolved by oral evidence apart from the documents annexed?

Counsel for the Appellants had quoted copiously from the affidavits of the parties to submit that substantial disputes exist. On the other hand Learned Counsel for the Respondent has submitted on the contrary and summarized the case of the Plaintiff which is simply that from when he was appointed to when he was purportedly retired he had not attained the mandatory retirement age of 60 or 65 years for academic staff which he is, he being only 58 years when he was retired. Documents emanating from the Appellants showing that he was erroneously retired have been tendered.

On their part, the Appellants have insisted that the retirement age as per the letter of employment of the Plaintiff/Respondent, the Regulations governing employment of the 1st Defendants/Appellants’ staff, the Polytechnic Law and the Civil Service Rules, the Respondent was not an academic staff who should enjoy 65 years retirement age which in any case has not been adopted by the Kwara State Polytechnic or Government, but that all staff of the Appellant shall compulsory retire on attainment of 60 years which by the documents tendered by parties the Respondent had attained or in the alternative that he had put in 35 years of pensionable service. What other oral evidence would the parties need in the circumstances of this case? I think not.

In F. A. T. B. LTD v. PARTNERSHIP INV. CO. LTD (2003) 18 NWLR (PT. 851) 35 AT 74 Per Iguh J.S.C. emphasized the importance and superiority of documentary evidence over oral averment when he succinctly said:

“Documentary evidence, where it is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness which may not be readily accepted by the court See BON LTD – VS- SALEH (1999) 9 NWLR (PT.618) 331 referred. See also section 132 (1) of he Evidence Act Cap. 112 Laws of the Federation.”

All that the lower court did in this case in order to resolve the contents of Exhibits 1, 7 and 8 attached to the affidavits of the Respondent and Exhibit KP4 to the Counter-affidavit of the Appellants was to juxtapose the sets of documents and find out from their contents and surrounding circumstances of the case which of the documents on the face of it told a lie or was telling the truth. In any case, the issue of 65 years as retirement age of academic staff had long been resolved when the parties agreed that, that issue was subject to estoppel per rem judicatam.

The Learned trial Judge was therefore right and never misconceived any of the cases of the parties, when he held that there was no substantial dispute to warrant a resort to writ of summons procedure in the case before him. Issue No.2 is also resolved in favour of the Respondent and Ground 2 of the Grounds of Appeal shall accordingly be dismissed.

Issue No. 3 which questions WHETHER THE TRIAL COURT WAS RIGHT TO HAVE GRANTED ALL THE RELIEFS SOUGHT BY THE PLAINTIFF/RESPONDENTS WHEN IT CONCLUDED THE QUESTIONS FOR DETERMINATION IN FAVOUR OF THE APPELLANT (Grounds 4 & 5); to my mind is at variance with the arguments proffered by the Learned Counsel for the Appellants for if the Learned trial Judge resolved all the questions in favour of the Appellant what then are the purport of paragraphs 7.05 – 7.08 of the Appellants’ brief of argument. The truth is that the learned trial Judge resolved all the questions in favour of the Plaintiff/Respondent and this explains the reasons for the grant of all the reliefs in favour of the Respondent.

The Learned trial Judge should not have been criticized if all the issues were resolved in favour of the Appellants. For instance the Learned Counsel for the Appellants after noting that the affirmative answer given to the question posed for resolution by the Plaintiff in his originating summons resolved the questions in their favour went on to say that the relevant Laws and Regulations governing the terms and conditions of the Plaintiff’s employment upon which the Plaintiff relied heavily was not given any consideration in the resolution of the questions.

Again it was contended that the trial court failed to consider the relevant documents like Exhibit 7 which shows that the Plaintiff is a civil servant bound by Civil Service Rules which prescribes 35 years in service before retirement before declaring the retirement of the Plaintiff null and void in spite of the fact that the said Plaintiff did not controvert this material facts.

Furthermore, it was submitted that had the court considered that the Plaintiff merged his former teaching service job in the public service through the office of the Head of Service, the court would not have declared his retirement null and void the Plaintiff having exhausted 35 years in service and more in breach of the Civil Service Rules. I would have ignored these submissions but for Ground 4, of the Grounds of Appeal which complains that, the judgment is against the weight of evidence.

Be that as it may, even though we are not expected to interfere with the findings of facts as made by the trial court, this court being an appellate court, since this is a case fought purely on documentary evidence, we are as good as a court of first instance to draw inferences from the documents filed by the parties and if possible set aside the findings of the trial court if found to be perverse or unsupported by the evidence before him. See PER ESO J.S.C. in OLUBODE VS. SALAMI (1985) 2 NWLR (PT.7) 282 AT 298, WATT OR THOMAS VS. THOMAS (1947) A.C. 484 and EBBA VS. OGODO (1984) 4 S.C. 84 at 98. I have scanned through the judgment of the lower court which spans several pages and of truth there was no where the learned trial Judge mentioned or alluded to the Regulations Governing the conditions of service of the Plaintiff/Respondents with the 1st Defendant. This may not be unconnected with the way and manner the Exhibits in this case were arranged and jumbled. Counsels did not point out particular sections of the Law or Regulations that guide the parties’ contract of employment. However, in the cause of my foraging through the Exhibits annexed to the originating summons, I came across Exhibit ASUP 14 which was tendered as part of the proceedings in suit No.KWS/53/2004 which document was alluded to by parties and is tagged: “KWARA STATE POLYTECHNIC, ILORIN, REGULATIONS GOVERNING CONDITIONS OF SERVICE FOR BOTH JUNIOR AND SENIOR STAFF OF POLYTECHNIC (Revised 1989)” which by Chapter 15.1 thereof states thus:

”The Council requires any member of its staff to retire after he attained the age of 60 years subject to three months notice in writing being given to the member of staff by the council. A member of staff may however, apply for a voluntary retirement with pension at the age of 45 years or at any other time thereafter. ”

See also Exhibit KP6B where the provisions of the above regulation were relied upon to retire the Plaintiff/Respondent compulsorily. See further Exhibit KP4 which is a letter of clarification from the Head of Service on the statutory retirement age and appropriate salary structure dated 24th September, 2001 which put the retirement age of all cadre of officers in the public service of Kwara State at 60 or 35 years of pensionable service whichever comes first.

Another relevant document tendered by the Appellants to buttress their case is Exhibit KP10 another letter from the Head of Service dated 5th April, 2004 to the Registrar of the 1sl Defendant/Appellant re-emphasizing that the retirement age remained 60 years or 35 years of service for all public servants in accordance with the Federal Government Circular No. B.6321/S.1/X dated 26th August, 1999 which was adopted by the State Government.

The said letter of clarification stemmed from a letter referenced REG/SEC/17/VOL.1X/249 of 17th March, 2004 from the Registrar of the 1st Appellant seeking clarification on the retirement age for academic staff of Polytechnics in Kwara State.

Paragraph 3 of the letter after the clarification above stated added as follows:

“3. However, we have advised the Ministry of Education in the past on the need to seek for the adoption of the special retirement age for academic staff in the state. The Ministry of Education is yet to keep this office posted on the action taken in this regard. Until this is done, 60 years of age or 35 years in service remain the retirement age.”

One of the issues canvassed by the Learned Counsel for the Appellant is that the court below failed woeful to consider Cap. 120 Laws of Kwara State – The Polytechnic Law.

No particular section of the Law was cited but again on my own, I stumbled on Sections 29, 30 and 31 (Part VI of the Law) captioned “Appointment of Other Staff And Conditions of Service”

Section 30 specifically provides that:

“30. The power to appoint other categories of staff shall be exercised by a committee set up under paragraph 3 (1) of the schedule and in addition, the committee shall be charged with confirmation of appointment, promotion and discipline of such staff.”

Section 31 thereof further stipulates that:

“The rate of remuneration, scale of salary, contract additions, pensions scheme and other conditions of service of members of the academic administrative and technical staff, shall be such as may be determined from time to time by council.”

The above provisions are very important in resolving some of the teething issues in this appeal.

Again, Exhibit 7 was also alleged as having not been considered by the lower court. I have looked at the said Exhibit 7 and it is the same in content with Exhibits 4 and KP9E. They are in respect of the merger of service of the Plaintiff/Respondent. Paragraphs 2 and 3 of the documents, which are germane to this issue state as follows:

“2. In consequence to this decision, the pensionable service would commence from 9/7/2006 till retirement including his study period from 1/9/70 till 1/8/71 which would be made pensionable.

3. For pension purpose therefore, his pensionable service would count from 9/7/66 till 6/11/2006 when he would be 60 years.”

In spite of this letter above quoted the Respondent was served with Notice of retirement dated 11th March, 2002 on the ground that all grades of officers in the public service of Kwara State shall retire at the age of 60 or 35 years of service. Following the protest by Exhibit 10 dated 18th March, 2002, Exhibit 11 dated 25th October, 2002 was written by the Bursar to the Ag. Rector to the effect that the Respondent was an academic staff who was entitled to retire at 65 years. On this ground the Respondent was restored back to his position and paid all his remunerations till the Defendants again wrote a letter dated 19th May, 2004 purportedly retiring the Respondent compulsorily for violating section 15.1 of the “conditions of service which obtains in the Kwara State Polytechnic” and contained in the State Circular HS/S/PEN/40/T.2/28 of 24th September, 2001.

There is no doubt that going by the contents of Exhibits 4, 7 and KP9E and Exhibit ASUP 14, the Respondent ought to have retired in 2001 having served for 35 years but going by his Statutory Declaration of Oath Certificate he was born on the 6th November, 1947 and unless I am mistaken, he shall attain the age of 60 in November 2007.

Now, having created the impression that he is an academic staff who by the judgment of Gbadeyan J. in suit No. KWS/53/2004 is supposed to retire at the age of 65 irrespective of years of service of 35, can the judgment of the lower court still be condemned as occasioning a miscarriage of justice considering the fact that the Respondent was compulsory retired when he was just 58 not even 60 as provided by the Regulations of the 1st Defendant’s staff service conditions.

I have looked at the record of proceedings and am of the view that the trial court carried out a dispassionate appraisal of the evidence before her and came to the inevitable conclusion that all reliefs sought by the plaintiff ought to be granted.

I am therefore in total agreement with the Learned Counsel for the Respondent that the answering of the questions formulated for determination in the affirmative was a mere accidental slip which is as a result of the volatility and fickleness of the human memory and this should not be the basis of challenge to the decision of the lower court as no miscarriage of justice has been occasioned. The cases of OSAFILE v. ODI and ONWUKA v. OMOGUI supra cited by Learned Counsel for the Respondent are in line with current judicial thinking that technical and mechanical justice should be discouraged.

There is this other issue of reinstatement which was strenuously argued by the Learned Counsel for the Appellant and the dictum of Ikongbeh JCA of blessed memory in UNILORIN TEACHING HOSPITAL MANAGEMENT BOARD v. MRS. S. B. AJIDE a decision of this court, which has been sufficiently distinguished by Learned Counsel for the Respondent. I think that the issue of domestic affair of the defendants as canvassed in relation to the order of reinstatement of the Respondent to the post of Chief Technologist does not arise at all and is grossly a misconception on the part of the Appellants’ counsel.

In the first place the Respondent specifically prayed for it in his relief number 4 that the Defendants be compelled to reinstate him to his position as Chief Technologist. This cannot with the greatest respect to the learned counsel to the Appellants, by any stretch of imagination, amount to the Respondent or court dictating terms to the Defendants since at all material times before his compulsory retirement the Respondent was duly recognized as a Chief Technologist. See paragraphs 6, 10, 11 and 17 of the counter-affidavit of the Appellants and Exhibits 6A of the Respondent, which emanated from the Registry of the 1st Defendant.

The trial court having found that he was wrongfully retired, even without asking, the court could order reinstatement as a consequence of the setting aside of the wrongful retirement. I am supported in the view above expressed by the recent decision of the Supreme Court in IDERIMA VS. RIVERS STATE CIVIL SERVICE COMMISSION (2005) ALL FWLR (Pt. 285) 431 which followed the locus classicus of HART VS. MILITARY GOVERNOR OF RIVERS STATE (1976) NSCC (VOL. 10) 222, SHITTA-BEY VS. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C. 26 (reprint) AT 35 – 36.

Again to bring home what I had said earlier it is necessary to quote from the decision of the Supreme Court Per Onu J.S.C. in the case of NNOLI v. UNTH MANAGEMENT BOARD (1994) 13 KLR (PT. 25) 1613 at Paragraphs 13 – 35 where he stated inter alia:

“Since the respondent was 45 years old when she was prematurely retired from her office or employment and that act of termination from the service of the Appellant was rightly in my view declared null and void, the effect is that the respondent is entitled to return to her duty post.”

Uwaifo JCA (as he then was) who delivered the lead judgment of the Court of Appeal upon which the decision above quoted was predicated was hailed as having put the matter admirably beyond peradventure thus:

“A look at the reliefs sought by the plaintiff reveals that they are for declarations that the retirement was invalid, that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void, that is to say that the decision retiring her from the services of UNTH was declared to be no decision.

It is as if she was never retired from her services The Plaintiff’s contract of employment was in these circumstances of this case unilaterally repudiated by Defendants. She refused to accept repudiation in the prompt manner she wrote to the Defendants to this effect. There is nothing standing on her way to have her job or office back with all the attendant rights privileges and benefits. In other words, she is entitled to be restored to her status quo ante.”

Since the Plaintiff/Respondent’s case is on all fours with the above-cited Supreme Court case, I adopt the dicta of the Learned Law Lords as mine. Accordingly, the court had jurisdiction to have made the order of reinstatement. Issue Number 3 and the question posed therein are answered in the affirmative. It is resolved in favour of the Respondent once more and Grounds 4 and 5 are hereby dismissed.

The final issue (No.5) is WHETHER THE FAILURE TO JOIN THE VISITOR TO KWARA STATE POLYTECHNIC IS NOT FATAL TO THE COMPETENCE OF THE PLAINTIFFS/RESPONDENT’S SUIT (GROUND 9).

I shall emphatically answer the question in the negative for the following reasons:

1. Notwithstanding, the provisions of sections 14(a), 15 (a), and (b) (c) (i) and (ii) and excerpts from Exhibits 12 (the letter of compulsory retirement), which have been quoted in extenso in the submissions of the Learned Counsel for the Appellants, section 3(2) of the Polytechnic Law Cap 120 Laws of Kwara State from which sections 14 and 15 thereof were quoted also provides as follows:

“3(2) The Polytechnic shall be a body corporate having perpetual succession and a common seal and shall have power to sue and be sued in its corporate name and to acquire, hold and dispose of available and immovable property for purpose of its functions under the Edict.”

Besides this provision, section 7 of the Law provides for the establishment of the Governing Council of the polytechnic and the powers of the council are enshrined in Section 10(a) to (f). By the powers conferred on it and the fact that by section 6 of the law members of the council are appointed by the Governor, the council can be sued on behalf of the Governor who appointed them as his mouthpiece.

Generally speaking, Order 11 of the High Court (Civil Procedure Rules) of Kwara State provides by Rule 3 that all persons may be joined as Defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative and judgments may be given against such one or more of the Defendant as may be liable according to their respective liabilities without amendment. See Rules 6 and 8 of that Order.

It has been submitted and I am in total agreement with learned counsel for the Respondent that the essence of joinder of a party is that he should be bound by result of the action or question to be settled and once there is a question which cannot be effectually and effectively tried without the party, then that party becomes a necessary party. See GREEN VS GREEN Supra and PEENOK VS. HOTEL PRESIDENTIAL LTD Supra cited by counsel for the Respondent which accord with the interpretation given the Rules as far as joinder of parties is concerned.

In this case, as was rightly submitted the Governor has not protested that he was not joined. Again, if the Defendants/Appellants felt they were not the appropriate parties to be sued, they should have applied for their Visitor to be joined. The authority of GREEN VS. GREEN has settled it beyond peradventure that although it is desirable to join the Governor whose directive is purportedly being attacked it is not necessary to join him before the court could determine the rights of the Respondent.

The principles of agency as enunciated in the cases cited by learned counsel for the Appellants can never apply to the situation we find ourselves where by section 31 of Polytechnic Law Cap. 20 Laws of Kwara State 1994, the Governing Council of the 1st Appellant along with the principal staff who are charged with the appointment, addition to contract, remunerations, scale of salary and other conditions of service of all academic and administrative staff have been joined in this case as parties.

To lay to rest the submissions of the Learned Counsel to the Appellants perpetually on this issue, he has not complained that the Governor was embarrassed and he has not also shown how the non-joinder of the Governor occasioned a miscarriage of justice in this case. In any case there are authorities galore to the effect that non-joinder of necessary parties (which the governor is not) in this proceeding, is not fatal to the proceedings as the court may and has actually determined all the issues and questions in this case. See MINISTER OF LAGOS AFFAIRS, MINES AND POWER V. ONIGBONGBO COMMUNITY AND OTHERS, (1961) WNLR 245. AND J.F. OLADEINDE AND ANOTHER V. I. O. ODUWOLE, (1962) WNLR 41.

Accordingly, Issue No.5 is resolved in favour of the Respondent and Ground 9 of the Appellants shall also fail. ‘On the whole the Appellants appeal lacks merit and is hereby dismissed in its entirety. The Judgment of the lower court is affirmed and I award N10,000.00 cost in favour of the Respondent.

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Other Citations: (2007)LCN/2352(CA)