Mr. Isa A. Saibu V. Kwara State Polytechnic, Ilorin (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the Kwara State High Court of Justice sitting at Ilorin presided over by Honourable Justice M. O. Adewara delivered on 28th February, 2007 wherein the trial High Court found for the Defendant/Respondent and dismissed the case of the Claimant/Appellant in its entirety.
Being dissatisfied with the judgment of the trial court, the Claimant/Appellant appealed to this Court against the said judgment.
The facts which led to this appeal are as stated below:
The Appellant was offered a provisional appointment as a Senior Lecturer with the Respondent – Kwara State Polytechnic on 15th November, 1987. The appointment was normalized on 13th December, 1988 and confirmed on 2nd October, 1989. Exhibits 1, 2, 3 and 4 are the letters of appointment, normalization, acceptance and confirmation of the appointment. Thereafter the Appellant had served the Respondent in diverse capacities and earned promotions the last of which was his promotion to the status of a Chief Lecturer on 30th May 2003. Exhibits 5 to 8 are relevant in this regard. The Appellant was elected a Fellow of the Chartered Institute of Bankers of Nigeria (FCIB) in 1983. He has also been a resource person to the National Board for Technical Education in Nigeria for more than ten years as attested to by Exhibits 9 and 10.
The Respondent on 13th May, 2004 requested the Appellant to submit his previous working experience since October, 1970 and the Appellant did. The Respondent subsequently directed the Appellant to appear before her Council’s Disciplinary Committee to face some undisclosed disciplinary charges after exchange of correspondence on the issue of his previous working experience.
On 21st June, 2004 the Appellant claimed he did not actually appear before the Disciplinary Committee and so he was given another invitation letter to appear on the 25th June 2004.
The Appellant claimed that he took ill and could not honour the appointment of 25th June, 2004. He filed Exhibits 16, 17 & 18 in proof that his illness was not unknown to the Respondent as the Appellant processed and obtained sick leave to be absent from work between 23rd and 29th June, 2004.
However, the Governing Council of the Respondent held a meeting on 28th June, 2004 and approved that the Appellant be compulsorily retired from the service of the Respondent due to “his inability to provide satisfactory explanations on the circumstances of the termination of his appointment with his former place of work”. The letter of compulsory retirement is dated 23rd July 2004 – Exhibit 20. The Appellant wrote to the Council an appeal which yielded no result. The Appellant as Claimant instituted this action at the lower court vide the origination summons filed on 20th October, 2004.
The claims therein are set out below:
“Let the Defendant being in Ilorin, Kwara State of Nigeria within Eight days after service cause an appearance to be entered for it to this Summons which is issued upon the application of the Plaintiff who, until his purported compulsory retirement from the service of the Defendant was Chief Lecturer in the Department of Banking and Finance Kwara State Polytechnic Ilorin for the determination of the following questions:
(1) Whether the Defendant through its Governing Council is justified to purport to have compulsorily retired the Plaintiff from its service upon the reason/ground stated in its letter dated 23/7/2004.
(2) Whether given the circumstances under which or which led to the purported compulsory retirement of the Plaintiff the Plaintiff has not been denied fair hearing by the Defendant.
(3) Whether the alleged compulsory retirement was done in accordance with the Regulations and Conditions of Service of the Defendant.
RELIEFS BEING SOUGHT
- A Declaration that the purported compulsory retirement of the Plaintiff from the service of the Defendant “with immediate effect” (28/6/2004) is wrongful, unlawful, without any justification and is therefore null and void.
A further Declaration that the purported compulsory retirement of the Plaintiff from the service of the Defendant without giving him a hearing on the allegation: your inability to provide satisfactory explanations on the circumstances surrounding the termination of your appointment in your former place of work” is a violation of Plaintiffs right to fair hearing as entrenched under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and is therefore null, void and of no effect whatsoever.
- A Declaration that the purported compulsory retirement contravenes Rules of natural justice, the Regulations and Conditions of Service of the Defendant.
- A mandatory order directing the Defendant to reinstate the Plaintiff to his appointment and position as Chief Lecturer with the Defendant.
- And any other consequential order(s) justice of the matter may demand in the circumstance.
“The learned trial judge on hearing the Originating Summons found in favour of the Respondent in the judgment delivered on 28th February 2007.
The Claimant being aggrieved has filed this appeal.
The Appellant flied five grounds of appeal. The Appellant filed and adopted brief of argument dated 22/5/07 on 24/5/07. Upon being served with Respondent’s brief he flied a Reply Brief dated 17/9/07 on 25/9/07. The Respondent’s brief dated 17/8/07 was deemed filed on 25/9/07.
The three issues distilled from the four grounds of appeal by the Appellant’s counsel Mr. Dayo Akinlaja are the same except for variation in phraseology as the ones settled by Respondent’s counsel Dr. J. O. Olatoke. The Appellant’s issues as couched will be used in the consideration of this appeal and are set out below:
“1. Whether the learned trial judge was not wrong in holding that the Respondent is justified in compulsorily retiring the Appellant in the circumstances of this case – Grounds One and Five.
- Whether the learned trial judge was not wrong in holding that the Appellant was accorded fair hearing before his compulsory retirement- Grounds Two and Three.
- Whether the learned trial judge was not wrong in dismissing the case of the Appellant in view of the manifest non-compliance with the requisite statutory procedure on termination of appointment applicable in this case-
Ground Four.
I will take issues One and Two together. The crux of both Issues is whether the Appellant was given fair hearing before he was retired.
On these issues learned Appellant’s counsel argued that the issue here is whether the Respondent had any justification to purport to have compulsorily retired the Appellant from her service upon the reason or ground stated in her letter of 23rd July, 2004 i.e. Exhibit 20 in this case.
Appellant’s counsel submitted that by a combined reading of Regulations 11.5.2 and 15.1 of the Conditions of Service and S.33 of the State Polytechnic Law the Appellant is statutorily entitled to maintain his employment until the statutory retirement age of sixty years except there is an established case of misconduct or inability to perform the functions of his office or employment against him.
He argued that the Respondent’s depositions in the counter-affidavit in opposing the averments contained in the Originating Summons are useless since there were no exhibits attached to support them. He cited Livestock Feeds Plc. v. Funtua (2005) All FWLR Pt. 286 Pg.753 at 770.771.
He argued that in Exhibits 10b, 12, 14 and 15 there was no allegation by the Respondent that the Appellant committed any misconduct. He argued that he was merely asked to submit previous working experience in Exhibit 10b. Exhibit 12 requested him to explain the circumstances by which he left the Bank of the North before taking up employment with Pan-African Consultants Ltd. There was not even an insinuation in these two exhibits that the Appellant was being accused of or being investigated for any misconduct. In a similar vein, Exhibits 14 and 15 merely invited the Appellant to appear before Disciplinary Committee without specifying the nature of the disciplinary charges on which he was invited.
He argued that the Respondent never directly accused the Appellant of any specific misconduct or wrong doing. He submitted that the accusation of misconduct must be clearly and emphatically made to be tenable. He cited
Adeniyi v. Yaba Tech. (1993) 7 SCNJ 304 at 329.
He argued that the Appellant was not retired for withholding information but for “inability to provide satisfactory explanations” on the circumstances surrounding the termination of his previous appointment. He argued that the Appellant was not retired for failure to comply with any directive as no written demand was ever made on him. He argued that having been in the employment of the Respondent for so long and earned promotions and accolades, the Respondent could only have been motivated by malice to retire the Appellant compulsorily on an allegation of inability to satisfactorily explain the circumstances of moving from one previous employment to another. Indeed the Respondent is estopped from this claim. He cited Section 151 of the Evidence Act; and Oyerogba v. Olaopa (1998) 12 SCNJ 115 at 123; (1998) 13 NWLR Pt. 583 Pg. 509.
Learned Appellant’s counsel also argued that there was also no evidence before the trial court to justify the holding that the alleged failure of the Appellant to comply with the directive in paragraph 6 of Exhibit 1 in 1987 when he took up his appointment with the Respondent was the reason why on 17th May, 2004, he was invited in writing vide Exhibit 14 to appear before the Council’s Disciplinary Committee of the Polytechnic.
He argued that Exhibit 12 requested the Appellant to explain the circumstances under which he left Bank of the North and the Appellant complied by Exhibit 13 the same day. He further argued that Exhibit 1 the letter of employment did not indicate that the Appellant should explain the circumstances of leaving his former employment or submit his letter of resignation and its acceptance from Bank of the North. At the time the Appellant was employed, his then employer was Pan. African Consultants Ltd.
Counsel argued that the crux of the judgment which had occasioned miscarriage of justice is the finding of the learned trial judge that the Appellant had been directed in paragraph 6 of Exhibit 1 to supply information about the circumstances of his leaving Bank of the North and that the Appellant was guilty of withholding the information from 1987 to 2004. He submitted that in doing so the learned trial judge made a different case for the Respondent other than that which was pleaded. He cited Odubeko v. Fowler (1993) 9 SCNJ 185 at 196; Ihewusi v. Ekeanya (1989) 1 NWLR Pt. 96 Pg. 239 at 249.
The Respondent’s counsel argued issues One and Three together. He opined that since the argument of the Appellant is that he was retired contrary to the terms and conditions of his service with the Respondent, the onus is on the Appellant to plead and prove in what way the conditions of service restricts or limits the Respondent’s right to compulsorily retire the Appellant. His failure to tender the Regulations and Conditions of Service is fatal to his case. He cited Katto v. C.B.N. (1999) NWLR Pt. 607 Pg. 390 at 405; Amodu v. Amobe (1990) 5 NLWR Pt. 150 Pg. 356 at 370; Okomu Palm v. Iserhienrhien (2001) 3 SCNJ 79 at 89. He urged the court not to speculate on the terms of the contract of service. He cited Njoku v. Dikibo (1998) 1 NWLR Pt. 534 Pg. 496 at 516; Omega Bank Plc. v. O.B.C Ltd. (2002) 16 NWLR Pt. 794 pg. 483 at Pg. 516.
He submitted that the case of the Respondent as the Plaintiff must be proved and this has not been borne out by the evidence before the trial court.
He cited Jolayemi v. Alaoye (2004) 12 NWLR Pt. 887 322 at 348. He argued that the failure of the Respondent to obey lawful instruction of his employer justified his compulsorily retirement. He cited Sule v. Nig. Cotton Board (1985) 2 NWLR Pt. 5 Pg. 17 at 19; Abomeli v. NRC (1995) I NWLR Pt. 372 Pg. 541 at 471; Okoya v. Santilli (1994) 4 NWLR Pt. 338 Pg. 256 at 280-281. He argued that the facts in Adeniyi v. Yaba Tech should be distinguished from the case since the Respondent gave the Appellant fair hearing by writing Exhibits 10b and 12 to the Appellant who responded promptly with Exhibits 11 and 13 respectively. He cited Ansambe v. B.O.N (2005) 8 NWLR Pt. 928 Pg. 650 at 669. He submitted that the cases of Oyeroba v. Olaopa supra, Odubeko v. Fowler supra and Ihewusi v. Elenya are completely at variance in facts and law with the circumstances of this case. He further submitted that in this case, if the dismissal of the Appellant is found to be wrongful, then he can be compensated in damages and not reinstatement. He cited Imoloame v. WAEC (1992) 9 NWLR Pt. 205 Pg. 303 at 313.
He further submitted that an illegal act cannot constitute estoppel. He argued that S.151 of the Evidence Act would have been applicable if the Appellant had disclosed to the Respondent in 1987 that he was dismissed by his former employer, i.e. Bank of the North.
He submitted that a party cannot be granted reliefs not claimed. He cited Oboroh v. Oghuvwu (2000) 3 NWLR Pt. 647 Pg. 120 at 128; Bamigboye v. University of Ilorin (1999) 6 SCN] 295 at 326.327, (1999) 10 NWLR Pt. 622 Pg. 290; Sa’adu A. Saliman v. Kwara State Polytechnic (2006) 5 NWLR Pt. 974 Pg. 477 at Pg. 491 and 495. He urged the court not to grant undeserved equitable reliefs to the Appellant.
My Lords, it is very important in this case to know or appreciate the sequence of events which led to the action in the court below and subsequently to this appeal.
The Appellant accepted the offer; he was confirmed and promoted several times by the Respondent.
There is no dispute regarding the fact that the Appellant is a senior and confirmed staff of the Respondent.
On 13/5/2004 by Exhibit 10b he was requested to submit to the Registrar his “previous working experience since your working career in October 1970”.
The Appellant promptly replied by sending Exhibit 11. On 19/5/2004, the Respondent wrote another letter Exhibit 12 asking for more details to be submitted that day. It reads in part –
“I am directed to request you to explain the circumstances by which you left the Bank of the North before taking up employment in Pan- African Consultants Ltd. Your response should address the following areas:
i. State if you were retired,
- If so, are you drawing pension,
iii. State if you were dismissed.”
On the same day he replied with Exhibit 13 which states in part –
“I WAS NEITHER dismissed nor retired from Bank of the North Ltd. At the time I left, I gave one month notice of resignation which was converted to termination of appointment with payment of one month salary in lieu of notice. The scheme of service did not include payment of gratuity or pension at that time.”
On the 17th of June 2004, the Appellant was asked to appear before the Council Disciplinary Committee at 10 am on 21/6/2004 by Exhibit 14. The letter reads:
“You are hereby invited to appear before the Council Disciplinary Committee at 10 am on Monday 21st June, 2004 at the Conference Room of the Polytechnic on disciplinary charges against you.”
There are two versions of what took place on 21/6/2004. The Appellant said his case was not dealt with while the Respondent in paragraphs 6 & 7 of their counter-affidavit to the Originating Summons claimed that he was attended to. Suffice it to say however that by another letter dated 21/6/2004 he was invited to appear before the Council Disciplinary Committee on 25/6/2004 and to “bring along all documentary evidences of your entire claim in your CV particularly with reference to your working experience”.
The Ag. Direct of the Institute of Business and Vocational Studies wrote vide Exhibit 18 to the Registrar of the Respondent on 24/6/2004 recommending sick leave for the Appellant from 23/6/2004 to 29/6/2004 and attached the sick report Exhibit 16 authenticated by the Polytechnic Doctor Exhibit 17.
Approval was granted by the office of the Registrar for him to proceed on sick leave by letter dated 28/6/2004 – Exhibit 19. I have to agree with the Appellant’s counsel that the Respondent’s argument to the effect that the Registrar was not aware of the sick leave which emanated from the office is an after thought since the registrar cannot as principal deny the actions of his subordinate agent who granted the approval more importantly as the Appellant had acted on it. See Summit Finance Co. Ltd v. Iron Baba & Sons Ltd (2004) FWLR Pt. 188 Pg. 996 at 1019;1020; S. 151 of Evidence Act and Oyerogha v. Olaopa (1998) 12 SCNJ 115 at 123, (1998) 13 NWLR Pt. 853 Pg. 509.
The Appellant heard nothing and was not called before the Council Disciplinary Committee until the letter dated 23/7/2007 – Exhibit 20 in which he was compulsorily retired from the service of the Respondent. By Exhibit 21 the Appellant wrote on 6/8/2004 to the Chairman of Council asking for a review of his case. Paragraphs 3-6 of the letter states as follows –
“(3) The decision to retire me compulsorily from the service of the Polytechnic was therefore taken prematurely by council without allowing the Disciplinary Committee to give me any opportunity to be heard at all, and to conclude its proceedings in my case.
(4) The letter of termination of my appointment in the Bank of the North is available, but the Committee did not meet to examine it or ask me any questions relating to the letter. The letter is quite explicit and does not require further explanation.
(5) In any event, the termination of my appointment with the Bank of the North in 1979 for whatever reason has not in anyway affected my seventeen years unbroken meritorious service in the Kwara State Polytechnic.
(6) In 1983, five years after leaving Bank of the North, the Bank recommended me for election as a fellow of the Chartered Institution of Bankers of Nigeria with membership No. FNS 003. I continue to have mutually beneficial relationship with the Bank up till today.”
As said earlier issues one and two turn on whether in the circumstances of this case, the Appellant was given fair hearing before he was retired.
The learned trial judge had this to say on the matter on Pg. 119 of the Record:
“There is evidence before me that the Defendant wrote to the Complainant to submit his previous working experience. See Exhibits 10b & 12.
The Claimant vide Exhibits 11 & 13 responded to the Defendant’s request. It was as a result of non satisfaction of the Defendant on the responses that the Claimant was requested to appear before the Council’s Disciplinary Committee.
It is clearly manifest from Exhibit 20 i.e. letter of compulsory retirement of the Claimant that he was indeed given fair hearing in this case.
I seem to agree with learned Defendant’s counsel that the Claimant having made written submissions, vide Exhibits 11 & 13 respectively cannot be said to have been denied fair hearing in this case. As stated by the learned counsel, the employer is not bound to accept the employee’s explanations or documents if at all submitted. I think I agree with him.”
There is no doubt that fair hearing includes giving notice of allegation to the person who may be adversely affected by the result of the inquiry and affording him the opportunity of being heard or putting forward his defence. See Chief Oyeyemi v. Comm. L. G. Kwara State (1992) 2 SCN] 226, (1992) 2 NWLR Pt. 226 Pg. 661. The representation can be oral or in writing. See Adigun v. A.G. Oyo State (1987) 3 SCNJ 118, (1987) 1 NWLR Pt. 53 Pg. 678.
I cannot see my way to agreeing with the learned trial judge. Exhibit 10b to which Exhibit II was a reply did not make any specific allegation to which the Appellant was called to answer. Exhibit 10b merely requested the Appellant to submit his previous working experience. Exhibit 12 asked the appellant to explain the circumstances under which he left Bank of the North before taking up his employment with Pan-African Consultant where he worked before he was employed by the Respondent. He replied the request vide Exhibit 13. In Exhibit 10b or Exhibit 12 no direct allegation of misconduct or suppressing information was made against the Appellant to which he was required to make a direct response by way of defence. A domestic tribunal like the Council Disciplinary Committee must make any accusation of wrong doing expressly and not by inference or by intimation. See Adeniyi v. Governing Council Yaba Tech. (1993) 7 SCN 304.
I am of the view that in this case, it was never made clear to the Appellant the specific allegation for which he was required to make an answer.
Even the letter dated 21/6/2004 inviting him to the meeting to be held on 25/6/2004 made no allegation of misconduct. The letter merely requested him to furnish documentary evidence of his entire claim in his Curriculum Vitae.
To compound issues, the letter of compulsory retirement shows that the Appellant’s case was considered and decided on 28/6/2004 while he was on sick leave. The letter of compulsory retirement is to the effect that he was unable to provide satisfactory explanations on the circumstances surrounding the termination of his appointment at his former place of work thus the decision to retire him. His claim is that if he was heard, he would have furnished them with sufficient information. Though a non-judicial tribunal is not obliged to observe the rule of fair hearing strictly speaking, the principles of natural justice – (audi alteram partem) (a) hear the other side and (nemo judex in causa sua) (b) you must not be a judge in your own cause; must be observed where a person’s civil rights and obligations are involved. See Adeniyi v. Governing Council Yaba Tech supra.
I am of the view that given the fact that the Appellant had been in the Respondent’s employment for seventeen years, the Respondent should have rescheduled the meeting of 25/6/2004 in order to challenge the Appellant with the fact of his non disclosure of what occurred before his employment to enable the Appellant give an explanation. The rules of natural justice enjoin them to do so, even if they would still ultimately find his explanation unacceptable.
The Respondent never challenged the Appellant with allegation of suppressing information and he never had an opportunity to respond to the said allegation.
Both counsels went to great lengths in their briefs to argue about whether or not it was right in the circumstances for the Respondent to have compulsorily retired the Appellant or rather whether the reason given for his retirement was tenable. The answer to that is simple. In my humble view, if the Appellant had been given opportunity to defend himself against specific accusations made against him before an apparently impartial Committee or Panel set up by the statute or consequential regulation governing his employment, no matter how seemingly untenable or unjust the decision to retire him appears to be, he would have no legal reason to challenge it. I agree with learned Respondent’s counsel that the failure of the respondent to accept the explanation of the Appellant would not constitute a breach of fair hearing.
In Ansambe v. B.O.N Ltd (2005) 8 NWLR Pt. 928 Pg. 650 at 669 Mukhtar J.C.A (as he then was) held as follows-
“I think the Appellant was given an opportunity to be heard, and he was heard, the fact that his explanation was not found to be satisfactory does not mean that he was not availed the principle of fair hearing.”
Let me also add here that the issue of fair hearing is distinct from the issue of fair trial. Fair hearing is mandatory provided by the constitution. It entails the observance of the rules of natural justice. On the other hand, a fair trial is a subjective thing. Fair hearing might have taken place but the outcome of the trial may not be seen to be fair depending on whose side of the divide you happen to be. See Mohammed v. Kano N.A. (1968) 1 All NLR 424; Gbadamosi v. Odia (1992) 6 NWLR Pt. 248 Pg. 491. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. It is my humble view that where an employer has given the employee every opportunity to defend himself against specific allegations before an impartial panel, he has been given fair hearing. In this case, I am constrained to disagree with the conclusion of the lower court that the exchange of correspondence by the parties’ simplicity meets the conditions of fair hearing.
The circumstances of this case and the sequence of events do not lead one to such a conclusion. I am of the view that the procedure followed falls short of a fair hearing for the Appellant. I do so hold.
At the lower court, both counsel made the justification or otherwise of the Respondent’s action an issue. In fact the learned trial judge held thus on this issue on Pg. 115 of the Record.
“All the processes filed in this case and the documents attached thereto are to be read together. It was the non-compliance with the directive in paragraph 6 of Exhibit 1 that led to the writing of Exhibit 10b by the Defendant to the Claimant asking him to submit to the Registrar his previous working experience since he started work in 1970.
Apparently not satisfied with the Claimant’s response vide Exhibit 11 he was written another letter Exhibit 12 to give more details. Thereafter he invited to appear before the Council’s Disciplinary Committee.
On the basis of the foregoing I hold that the Defendant is justified to have compulsorily retired the Claimant from its service vide its letter dated 23rd July, 2004. Issue NO.1 is therefore resolved in favour of the Defendant.”
In this type of cases the courts in my view are not at liberty to use a rule of thumb to decide whether or not an employer was right or wrong to have terminated the employment of an employee. Even though the first question for determination in the Originating summons is whether the Governing Council is justified to have compulsorily retired the Appellant, it is not a proper issue in such a case. In an action for unlawful or wrongful termination or dismissal, what an employer needs to prove to justify its action is that the allegation was disclosed to the employee, and that the employer believed he committed the offence after hearing the employee, the witnesses for and against him. The duty of the employee on the other hand is to prove that the termination was wrongful or illegal. It is not the function of the court to determine guilt or other wise of the employee or retry the employee. See Dr. Tunde Bamgboye v. University of Ilorin & Anor. (1999) 6 SCNJ 295 and (1999) 10 NWLR Pt. 622 Pg. 290. Even if we are to consider the merit of the case made out against the Appellant, I am of the view that his appointment was made subject to fulfilling conditions contained in paragraph 2 of Exhibit 1 rather than Paragraph 6 of Exhibit 1 fulfillment of which was not made a condition precedent to his valid appointment.
By the provisional offer of appointment given to the Appellant in Exhibit 1, paragraph 6 thereof states as follows:
“1 enclose herewith two copies of this letter of appointment. If you decide to accept the appointment on the terms set out above, please sign over a Ten Kobo stamp on a copy of the appointment letter and return it to me. You are also required to submit a copy of the letter of resignation of appointment as well as formal letter of acceptance of your resignation of appointment from your present employer.
Alternatively, you may arrange to transfer your present service to the College for purposes of continuity, if you are in Public Service.”
Whereas paragraph 2 of Exhibit 1 states as follows –
“2. The appointment is subject to your:
(a) being declared medically fit by a qualified medical officer;
(b) submission on assumption of duty of your original certificates for verification;
(c) submission of a certified statement of your last pay slip from your present employer for perusal;
(d) satisfactory completion of National Youth Service or certificate of exemption where applicable. ”
It is quite clear to me that the terms of employment as contained in paragraph 2 were mandatory being specifically required as part of the condition precedent to his acceptance of the offer of employment. Whereas, paragraph 6 was said to be a requirement which the employers did not need for seventeen years. It was not a requirement needed for his confirmation of appointment or his subsequent promotions. How could he be retired for what obviously was never important to his employers? The 1st and 2nd issues are resolved in favour of the Appellant.
The 3rd issue is whether there was non-compliance on the part of the Respondent with the requisite statutory procedure on termination of appointment.
Basically the argument of the Respondent on this issue is that the Appellant did not plead nor tender the regulations the Respondent is said to have contravened.
The Respondent’s argument is also that the Appellant did not mention the Respondent’s contravention of the Polytechnic Law but merely its Staff Rules and Regulations. Having not mentioned the law, we are not obliged to take cognizance of the law. That is a fallacious argument if I ever read one.
The Polytechnic Law is a statutory provision the lower court and indeed this court is obliged to take judicial notice of. S.73 of the Evidence Act provides as follows-
“No fact of which the court must take judicial notice need be proved.”
S.74 (1) (a) provides as follows-
“74(1) the court shall take judicial notice of the following facts –
(a) all laws or enactments and any subsidiary legislation made there under having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.”
The decision in ABU Zaria v. Molowku (2004) All FWLR Pt. 238 also reinforces this position. The court held as follows –
“Where the contract of service or any transaction between opposing parties is governed or the conditions and terms are contained in regulation derived from statute or enactment, the courts are entitled to take judicial notice of such enactments which are relevant to the facts before the court.”
See also Peenok Investments v. Hotel Presidential Ltd. (1982) NSCC Pg. 477 at Pg. 485-486. The Appellant was only obliged to plead the facts and not the law. The fact must be pleaded by the parties whereas the law must be recognized that is taken judicial notice of by the court.
The first leg of the Appellant’s claim in the Summons is the “wrongfulness” and “unlawfulness” of his compulsory retirement. Even though the words do not bear the same meaning in law, we are bound by the Plaintiffs claim which includes the unlawfulness of his retirement. The law which the Appellant claims the Respondent has violated is the Kwara State Polytechnic Law Cap. 120 Laws of Kwara State 1994. This is a law the learned trial judge was obliged to take judicial notice of and which his Lordship rightly did. The judgment is replete with references to S.33 of the Polytechnic Law and Section 11.5.2 of the Conditions of Service of staff made pursuant and in pari material therewith. See Pg. 117 and 121 of the Record. In the originating summons, the 3rd question for determination and 3rd relief sought by way of declaration was that the purported compulsory retirement contravenes the rules of natural justice, the regulations and conditions of service. We are here also obliged to take judicial notice of the Regulations made pursuant to S.31 of the Polytechnic Law to regulate the conditions of service of its Senior Staff. It is part of the statutory regulations which need to be specifically pleaded but need not be proved since the law assumes that the court is aware and has taken notice of such legislation. The ferocious argument of learned Respondent’s counsel that the Appellant did not tender in evidence the law which he claimed the Respondent has breached is therefore irrelevant.
It is apposite in the circumstances of this case, because of the strong argument made by learned Respondent’s counsel regarding the burden of proof on the Appellant to tender the law or regulation relied upon, to reiterate the position of the law on this point. Where an employee is employed by a statutory body but the terms of employment or discipline of its staff are not embodied in the law creating the said statutory body, the employment is not one with statutory flavour. Where the statute creating the statutory body makes such provisions and regulations are made pursuant to these provisions, the employer is bound by the regulations so made. On the other hand, where the law creating the statutory body is silent on the mode of disciplinary action but the statutory body makes administrative rules and regulations for the employment, promotion and discipline of its staff, such regulations do not confer on the employees the status of employees in employment with statutory flavour. A staff regulation of a statutory body is not a subsidiary legislation which can give the employment under it statutory flavour. See Katto v. CBN (1999) 5 SCN] 1 and (1999) 6 NWLR Pt. 390. In the first scenario, the law creating the statutory body and the regulations made there under are public record and need no further proof. Whereas in the later scenario, the terms of employment being not contained in legislation but in a contract of service regulated by staff regulations need to prove by the employee. Thus the employee must plead the contract of service and the breach of the terms of employment by the employer. See Katto v. CBN cited supra. In a contract of service of master and servant the master is only liable to pay damages for breach of the contract of service. The court cannot order specific performance. See Babatunde Olanrewaju v. Afribank (2001) 7 SCNJ 493 and (2001) 13 NWLR Pt. 731 Pg. 691.
I must state here that the misconception of using the words ‘unlawful’ and ‘wrongful’ interchangeably with respect to the action of an employer still persists. Where it is a master servant relationship at common law in which the terms of employment and discipline are regulated by the contract of service, where there is a breach, such breach is called “wrongful” and the employee is only entitled to damages for such breach. Whereas, in the case of an employment regulated by statute, a breach of the statute amounts to an “unlawful” act which can be declared null, void, of no effect which entitles the employee to reinstatement, etc.
By Section 33(1) of the Polytechnic Law, Cap. 120 Laws of Kwara, 1994 provides as follows;
“(1) If it appears to the Council that the Rector, Deputy Rector or any of the confirmed members of the Academic or Senior Administrative or Technical Staff of the Polytechnic should be disciplined or removed from office, or employment on the ground of misconduct, failure or inability to perform functions of the office or employment, the Council shall:
(a) give notice to the person concerned specifying he reasons therefor;
(b) make arrangement for an investigating committee to investigate and report on the matter;
(c) afford the person concerned an opportunity of making representation in person, on the matter before the investigating committee.
2 If the Council, after considering the report of the Committee decides that the offence committed does not warrant removal from office, the Council shall decide on the appropriate disciplinary measure.
- If the Council, after considering the report of the Committee is satisfied that the person concerned should be removed, it shall remove him by an instrument in writing signed by the Registrar on the directions of the Council in the following circumstances, that is –
(a) if a resolution is passed at a special meeting convened for the purpose of which thirty clear days notice to remove the person concerned is clearly set out;
(b) where not less than nine members are present in person and the said resolution is passed by at least a two-thirds majority of those members present and voting.”
The above Section of the law states the procedure for disciplinary action to be taken against a confirmed senior technical or academic staff. All the steps in the process must be followed meticulously to ensure absolute compliance.
Let us assume that the failure of the Appellant to obey the terms of paragraph 6 of Exhibit 1 amounts to misconduct. The Respondent was obliged to follow the process laid down in S.33 of the Act before he can be sanctioned. When the mandatory procedure set out by statute is not complied with, any disciplinary action taken by the Respondent against the Appellant must be declared null and void. In this case, the provisions of S.33 (1) of the Polytechnic Law were side tracked. The rights bestowed on the Appellant by the law as an employee engaged in an employment with statutory flavour cannot be lightly taken away by the Governing Council of the Polytechnic. See PDP v. INEC (1999) 7 SCNJ 297 and (1999) II NWLR Pt. 626 Pg.200. In other words, the Respondent cannot ignore the provisions of the law which created the institution. There is no way the retirement of the Appellant in this case can be lawful without recourse and compliance with S.33 of the Polytechnic Law. See Olaniyan v. Unilag (1985) 5 NWLR Pt. 9 Pg. 599; Eperokun v. Unilag (1986) 4 NWLR Pt. 34 pg.162.
Let us look at S.33 (1) of the Polytechnic Law again. S.33 (1) (a) provides that notice must be given to the employee specifying the reason therefor. None of the letters written to the Appellant Exhibits 12, 14 & 15 specified the reason that he had failed or was unable to give adequate particulars or satisfactory explanations on the circumstances surrounding the termination of his appointment at his former place of work. There was no letter from the respondent to the Appellant accusing him of suppressing information about his previous employment and asking for an explanation of why he had not given that information since 16th November 1987.
Step (b) is for the Governing Council to make arrangements for an investigating committee to investigate and report on the matter. Paragraphs 9, 10 & 11 of the Respondent’s counter-affidavit to the originating summons spoke of the invitation of the Appellant by the sub-committee of the screening of staff of the Respondent and the finding of that committee. Paragraph 9 referred to the Constitution of a visitation panel which did not write to the Appellant. Paragraph 10 about a report of the visitation panel, etc. The counter-affidavit had no exhibit to support these assertions. There was no letter from that committee or any other investigation committee to the Appellant. Exhibits 12 & 15 from the office of the Registrar merely asked for information. Exhibit 14 did not state the specific disciplinary charge.
Step (c) that the person be given an opportunity of making representation in person before the investigating committee was also not fulfilled. The Appellant could not appear on 25/6/2004 because he was ill and absent with permission. What was the hurry in holding a meeting and deciding to retire the Appellant peremptorily without rescheduling another meeting to hear his side of the story? Why was the need for another formal letter of invitation if his matter was treated on 21/6/2004? Where termination of employment is said to be for misconduct, the employer must justify it by giving opportunity to the employee to defend himself. See Prof. Olatunbosun v. NISER (1988) 6 SCNJ 38 and (1988) 3 NWLR Pt. 80 Pg.25; Iderima v. River State (2005) 7 SCNJ 493 and (2005) 16 NWLR Pt. 951 Pg. 378.
Where hearing must be done by the employer and the employee’s defence is prescribed or required, it must be carried out even where commission of offence is obvious and the hearing would be a mere formality. As opined earlier the quality or correctness of the decision arrived at is immaterial. See Nnoli v. U.N.T.H.M.B (1994) 10 SCNJ 71. The legal effect where conditions of service are contained in regulations derived from statutory provisions is that the employment is one with statutory flavour which invests the employee with legal status higher than the ordinary one of master and servant. See Imoloame v. WAEC (1992) 11/12 SCNJ 121; Dr. Bamigboye v. University of Ilorin supra.
The last requirement providing for the conditions precedent under which a letter of compulsory retirement should be signed by the person of the Registrar of the University was not even followed. To make matters worse, S.33 (3) of the Polytechnic law stipulates thirty days notice to the members of Council stating the reason for removal of the Senior Staff and a vote of two-thirds majority thereafter of at least nine members of Council in attendance at the meeting. The counter-affidavit of the Respondent did not at all indicate that these steps were followed. The Respondent cannot do anything outside or ultra vires the law that created it. The Governing Council of the Kwara Polytechnic is a creation of statute and cannot operate outside the statute creating it. Exhibit 20 – the letter of compulsory retirement stated that the Council took its decision on 28/6/2004 three days after the Appellant was invited to meet with the Disciplinary Committee. Clearly the provisions of S.33 (3) of the Law were ignored. The court must ensure that the rights bestowed on citizens by statute are protected. See P.D.P v. I.N.E.C supra.
It is clear in my view that the compulsory retirement of the Appellant was unlawful, null and void being contrary and ultra vires the provisions of S.33 of the Polytechnic Law. Thus, the court is bound to grant the reliefs prayed for by the Appellant in the Originating Summons. The Appellant is entitled to a declaration that the compulsory retirement was illegal and to leg four of the claim which is for reinstatement to his former position. In Iderima v. Rivers State C.S.C. (2005) 7 SC Pt. 111 Pg. 135 at 151, Justice Edozie, J.S.C held thus:
“It is settled law that once the dismissal of a Civil servant is declared null and void, the effect of such pronouncement is that the civil servant was always and still is a civil servant.”
Thus, as far as the law is concerned, the Appellant has always been in the service of the Respondent and is entitled to all his salary, benefits, etc. For reasons given above, I am of the view that the 3rd issue should be resolved in favour of the Appellant.
In sum, I find that this appeal has merit and should be allowed. I make the following orders:
(1) It is hereby declared that the compulsory retirement of the Appellant by the Respondent is unlawful and thereby null and void.
(2) The Respondent is hereby ordered to restore the Appellant to his position as Chief Lecturer at the Polytechnic with immediate effect.
APPEAL ALLOWED.
Other Citations: (2008)LCN/2686(CA)
