Ondo State University V Folayan (1994)
LAWGLOBAL HUB Lead Judgment Report
UWAIS, J.S.C.
The respondent brought an action in the High Court of Ondo State sitting at Ado-Ekiti, against the appellants, claiming as follows, as per paragraph 21 of his statement of claim:-
“(i) A declaration that the plaintiff’s appointment with the 1st defendant is still subsisting;
(ii) A declaration that the purported determination or termination of the plaintiff’s appointment with the 1st defendant vide the 2nd defendant’s letter reference number AD/EST/OAU/ACSE/37/73 of 31st May, 1988 is a violation of:
(a) the plaintiff’s letter of appointment dated 29th April, 1983;
(b) memorandum of agreement dated 29th April, 1983 between the plaintiff and the 1st defendant;
(c) regulations regulating the condition of service of senior staff of the 1st defendant;
(d) section 15 of the Ondo State University Edict Law of 1982;
(e) section 33 of the Constitution of the Federal Republic of Nigeria 1979; and
(f) the rules and norms of natural justice.”
At the hearing in the High Court, each of the parties called evidence with the appellant (hereinafter referred to as “plaintiff’) testifying on his behalf and the 2nd Respondent testifying for himself and the 1st respondent (hereinafter referred to as “2nd defendant” and “1st defendant” respectively).
The facts of the case, which are not in dispute, may be summarised as follows. By a letter dated the 29th day of April, 1983, the plaintiff was offered an appointment by the 1st defendant as Lecturer Grade II. The letter, which was signed by the 2nd defendant on behalf of the 1st defendant, reads thus:-
“29th, April, 1983
Mr. Michael Adekunle Folayan,
2622 Kirkwood Place, #202,
Hyattsville, Maryland 20782,
U.S.A.
Dear Sir,
Offer of Appointment
I write on behalf of the Council of the Obafemi Awolowo University to offer you an appointment as Lecturer Grade II* in the Department of Economics on a salary scale USS Step 1, i.e. N7,550 per annum, with effect from 1st September, 1983, or as soon as possible thereafter.
The appointment is probationary for a period of 3 years and is subject to the regulations of the university and to such conditions governing appointments generally as may be made by the council of the university from time to time.
The prospective employee must produce evidence of good health before an appointment becomes valid. For this purpose, you are required to obtain a medical certificate of fitness from the Director of Health services of the Obafemi Awolowo University or a medical doctor designated by the University.
If you accept the offer, please sign the duplicate copy of the Memorandum of Appointment over a twenty kobo stamp, stating how soon you expect to be able to take up your appointment and return it to me together with your medical certificate as soon as possible.
Yours faithfully,
(Signed)
J.G.O. Adegbite
Registrar
cc: Vice-Chancellor,
Bursar,
Senior Accountant,
Dean, Faculty of Social Sciences.
*Subject to your obtaining PH. D.”
This letter was put in evidence as Exhibit A and Memorandum of Appointment which was attached to it was admitted in evidence as Exhibit A1. The plaintiff accepted the offer of the appointment on the 8th day of July, 1983 by signing Exhibit A1 and indicating therein that he would take up his duties on the 1st day of September, 1983. The portion of Exhibit A1 signed by the plaintiff is on page 3 of the Exhibit. It reads in part as follows:
“ACCEPTANCE
I accept with pleasure the offer of appointment upon the terms and conditions set forth above, and I shall take up my duties on 1st September, 1983.
Appointee’s
Signature:
(Signed)”.
Now paragraphs 6 and 8 of Exhibit A1 read:
“6. Subject to the provisions of paragraph 7 below, the council shall not terminate the appointment of the appointee without having given six month’s notice in the case of a full professor or three months notice in the case of a non-professional member of staff, in writing of its intention to do so, or having tendered payment of the amount applicable to the period of notice unexpired and upon its doing so, the appointment of the appointee shall determine immediately.”
“8. The appointment shall be subject to confirmation after a period of three years in the case of academic staff and two years in the case of administrative staff and if confirmed shall become permanent. The appointee shall then retire at the close of the academic session (for this purpose 30th September) in which he attains his 60th birthday unless invited by resolution of the council to continue in office for a specific period, not exceeding five years. Only appointments of the rank of professorship made on permanent basis shall be tenable until the normal retirement age of 60 without the three year probation period.”
(Emphasis mine).
It is pertinent to point out that the name “Obafemi Awolowo University” was later changed to Ondo State University and this is common ground between the parties to this case.
Apart from the aforementioned conditions, the appointment of the plaintiff was also made, by Exhibit A, subject to the Regulations Governing the Service of Senior Staff (Exhibit F). The Regulations provide for an Appointments and Promotions Board whose composition is as follows:-
“(i) The Vice-Chancellor (Chairman)
(ii) Two members of council, not being members of senate appointed by council
(iii) The Deans/Acting Deans of Faculties.
(iv) The Head of Department of the candidate concerned.
(v) The registrar as secretary”.
The terms of reference of the Appointments and Promotions Board include responsibility- .
“To consider all appointments to, confirmation of, and promotions within the academic, Senior Administrative, Technical and Professional staff,”
The plaintiff assumed duty in accordance with the date given by him to do so, that is the 1st September, 1983, in the Department of Economics of the 1st defendant. He remained in the employment and carried out academic and extra- curricular activities that had been assigned to him from time to time by the authorities of the 1st defendant, until the 31st day of May, 1988 when he was served with a letter (Exhibit E) written by the 2nd defendant; which terminated his appointment with the 1st defendant. The letter, as relevant, reads:-
“31st May, 1988
Dr. E.A. Folayan,
Ondo State University,
ADO-EKITI
APPOINTMENT WITH THE UNIVERSITY
I am writing to inform you that the Appointments and Promotions Board at its meeting on Friday, 29th April, 1988 reviewed your appointment and the totality of your career in the University and was unable to confirm your appointment. The Board unanimously decided that your probationary appointment in the University be determined with immediate effect.
Your appointment as a lecturer in the department of Economics in this University is therefore determined with effect from today Tuesday, 31st May, 1988.
By a copy of this letter, the Bursar is being informed to pay you three months salary in lieu of notice and also to work out your other entitlements as well as your indebtedness to the university, so that they can be settled.
(signed)
J. G. O. Adegbite.
Registrar.”
Hence the action brought by the plaintiff in the High Court against the defendants. In his considered judgment, the learned trial Judge, Akintan J. (as he then was) found as follows:-
“It is clear from the contents of the plaintiff’s letter of appointment (Exhs. A & AI) as well as the provisions of Articles 14(c) and 22 of the Rules (sic Regulations), that the plaintiff’s appointment as Lecturer Grade II was on probation for three years and that it would only be confirmed if the appropriate authority of the University charged with exercising that function considers the plaintiff’s service to be satisfactory, he shows evidence of academic or scholaristic (sic) potential also to the satisfaction of the same authority.
I also have no doubt in holding that by virtue of the powers conferred on the Board in Article 3(B) of the Regulations, it is that Board that is conferred with the power to take a decision as to whether or not the plaintiff’s appointment should be confirmed.
The question to be answered is whether the decision to confirm an appointment can be inferred or presumed in the present case or whether the court can, based on the facts proved, in this case, hold that the plaintiff’s appointment has, in fact been confirmed. In [1994] 7 NWLR Ondo State University v. Folayan (Uwais, J.S.C.) 17 answering this question reference must again be made to paragraph 8 of the Memorandum of Agreement (Exh. A 1) which requires that the plaintiff’s appointment’ shall be subject to confirmation after a period of three years.’
It is clear from that provision that the plaintiff’s appointment can only be confirmed after and not before he has served for three years. When that provision is read along with Article 22(vi) of the Rules which provides that probationary period of a member of that academic staff shall not be more than a total of six years, it means that the probationary appointment of an academic staff can only be confirmed after this third year of service but not later than his sixth year of service in case he was granted an extension.”
The learned trial Judge considered also whether the plaintiff’s probationary appointment had in fact been confirmed by the conduct or omission of the defendants. He held that the Regulations Governing the Service of Senior Staff (Exh.F) were made pursuant to the power conferred on the Council of the University by virtue of sections 6 subsection (5) and 9 subsection (1) of the Ondo State University Law, 1982. He, consequently, came to the conclusion that the Regulations had legal force, and by virtue of that, had invested in the senior academic staff of the university a legal status, which the senior staff could legally enforce, on the authority of the case of Shitta-Bey v. Federal Public Service Commission, (1981)1 S.C. 40. The learned Judge observed that the letter terminating the appointment of the plaintiff (Exh. E) was issued on the 31st May, 1988, that is after the plaintiff had been in the employment of the 1st defendant for a period of four years and eight months, which falls within the maximum 6 years of probation prescribed by regulation 22(vi) of Exhibit F. He then stated as follows:-
“The question then is: can a court assume that the plaintiff’s probationary employment has been confirmed through the conduct of the parties in this case, having regard to the facts summarised hereof? I have no doubt in answering the question in the negative.”
Learned trial Judge also considered the issue whether the 1st defendant was right in determining the plaintiff’s appointment and held that the 1st defendant was justified in doing so. Finally, he held that the plaintiff’s claim had no merit. He, therefore, dismissed it in its-entirety.
The plaintiff appealed from the decision of the trial court to the Court of Appeal. The appeal succeeded. In reversing the judgment of the learned trial Judge, the Court of Appeal (Omo J .C.A, as he then was, Ndomo-Egba and Salami J.J.C.A.) considered the question whether the plaintiff’s appointment was confirmed, having been in the employment of the 1st defendant for more than 4 years. The court (per Ndoma-Egba, J.C.A.) held that-
“The appellant was in the employment as an academic staff. On resumption of duties on 19/4/83 in pursuance to Exh. A, the appellant was considered fit and sufficient to serve in the Department of Economics of the Institute where he worked for well over four years as a lecturer until his appointment was purportedly terminated by the Appointment and Promotion Board of the 1st respondent and this was long after the probation period had expired.
The contract of employment between him and the respondents was complete.
After serving for well over four years, without confirmation of his appointment nor determination (sic) of it, the appellant genuinely assumed that his appointment was confirmed. The respondent cannot now resile from the position they had, by conduct, acknowledged. There was no evidence that the period of probation had been extended. In Majekodunmi v. NBN, (1978)3 S.C. 119 it was decided that in determining that whether there had been acceptance of an offer, the total circumstance of the case including the conduct of the offeror (sic) and offer or are factors to be taken into consideration ….
This, in my view, is precisely the position in the instant appeal. The respondent cannot withdraw from their written commitment that the appellant’s appointment was a probation for three years. The words “after three years” do not imply the communication of the confirmation of his appointment or otherwise, should be indefinitely delayed……. Silence or inaction in the instant case may be inferred as an admission of the confirmation of the appellant’s appointment.” (emphasis mine).
The court also considered the competence of the Appointments and Promotion’s Board to terminate the appointment of the plaintiff without reference to the 1st defendant for its approval or ratification. The court (per Ndoma-Egba JCA.) held as follows:-
“It cannot be disputed that the appellant’s appointor is the University Council, the duty of which, by the law creating it, is to administer the Institution, including the disciplinary control of all categories of staff, their employment and deployment. See section 6 of the Ondo State University Law, (1982) as amended in 1985.
Exhibit “A” by which the appellant was initially appointed Lecturer grade II reads:
‘I write on behalf of the council of the University of Obafemi Awolowo (Now Ondo State University) to offer you appointment as Lecturer Grade II…..’
This confirms the assertion that the council is the appointor of the appellant. see also Clauses 7, 8 and 9 of Exhibit “A1” of (sic) the memorandum or appointment, Article 25B of the 1st respondent (Council) (sic) states:
‘For good cause, any member of staff may be suspended or (sic) from his duties or his appointment terminated by the council’.
The power of termination or suspension of all staff thereto rests, exclusively, with the council. ….. The construction of the said provisions confirms that the council of the Institution is the only competent authority to dispense with the service of the appellant after the duration of the probation or within a reasonable time thereafter as contained in Exhibit “A” or confirm it. The assumption by the Appointments and Promotions Board to do so, entirely without the endorsement by the council is a pretence. Even if it could be validly implied by existing regulations of the institution that such power was delegated to the said Board, the council ought to formally endorse the actions purportedly taken on its behalf………The council of the University is the appointor. It is the only body competent to terminate the appointment of the appointee, the appellant. The learned trial Judge did recognise, rightly in my view that, in sections 3 and 4(3) of the Ondo (sic State) University Law (No.2 of 1982) as amended by the Ondo State University Law (Amendment) Edict, No.9 of 1985 and the Regulations Governing the Service of Senior Staff (Exhibit “F”, which are binding on the parties.
Section 2(1) of the Principal Law creating the Ondo State University (as amended), hereinafter referred to as the law, provides that the institution consists of the Chancellors (sic)
(a) chairman of council
(b) a body to be called Council
(c) a Vice-Chancellor
(d) a body to be called Senate.
The (Appointments and Promotions) Board having not been expressly mentioned can only be recognised and cannot exercise the powers of the council in regard to appointment and discipline of staff without the approval or endorsement of the council.”
(Parenthesis and emphasis mine).
In conclusion, the lower court allowed the plaintiff’s appeal granted and declared as follows:
“1. That the termination of the plaintiff’s appointment was invalid.
- That the plaintiff’s appointment with the 1st defendant still subsisted.
- That the plaintiff be restored to his office and be paid his entitlements with effect from 31st may, 1988.
and refused to grant the orders sought under claims (iii) and (iv) in the plaintiff’s writ of summons.
I think it is pertinent to point out here, that declaration No.1 above was not sought by the plaintiff in his statement of claim, which I have quoted at the beginning of this judgment nor were the orders sought in respect of claims (iii) and (iv) which appeared only in the plaintiff’s writ of summons. In making the declarations, the Court of Appeal was oblivious of the claims in the Statement of Claim which has superseded the claims in the Writ of Summons.
The 1st and 2nd defendants were aggrieved by the decision of the Court of Appeal reversing the decision of the trial court. They therefore brought the appeal before us.
In the brief of argument filed jointly by the 1st and 2nd defendants, the following issues for determination have been formulated:-
“(i) Whether the respondent’s probationary appointment was limited to a period of 3 years?
(ii) Whether the respondent’s probationary appointment with the 1st appellant was ever confirmed.
(iii) Whether the 1st appellant was estopped from denying that the respondent’s appointment had been confirmed.
(iv) Whether the power to confirm appointments or do otherwise was vested in the Appointments and Promotions Board.
(v) Whether Article 25B of the 1st appellant’s regulations, to wit, Exhibit F applied to the respondent.
(vi) Whether the respondent’s appointment was properly terminated by the 1st appellant.”
The plaintiff presented three issues for determination in his brief of argument. The issues read:
“4(1) Whether or not the respondent’s appointment was deemed confirmed after the lapse of the probationary period of three years.
4(2) Whether having regard to the facts and the peculiar circumstances of this case, the appellants are estopped from resiling from the state of fact that the appointment of the respondent had been confirmed.
4(3) Whether the Appointments and Promotions Board can validly determine the respondent’s appointment with the 1st appellant.”
At the hearing of the appeal no oral arguments was advanced by the learned counsel for the parties who, merely adopted their respective brief of argument. I will therefore present, in this judgment, the contentions of the parties as contained in the briefs in question.
The defendants state that the appointment offered to the plaintiff by the 1st defendant was initially probationary and was made subject to the Regulations of the University (Exh.F) it is, therefore, contended that the appointment was not absolute but qualified by the provisions of the regulations which are relevant. It is then submitted that clause 22(i), (ii) and (vi) of Exhibit F are relevant to the appointment and that the effect of these provisions of clause 22 is not to limit the period of the plaintiff’s probation to 3 years but to an upper limit of 6 years. Therefore, this upper limit implies to-
(a) Members of staff of the University who have not been confirmed after 3 years of probationary appointment;
(b) Members of staff whose appointments have not been terminated after three years of probation; and
(c) Members of staff whose probationary appointment had ended after 3 years.
It is, therefore, argued that the plaintiff’s appointment was not limited to a period of 3 years but to the extended period of 6 years. With regard to the confirmation of the plaintiff’s appointment, it was argued that there was no evidence to show that that was done. On the contrary, there was sufficient evidence that the Appointments and Promotions Board had not taken any decision on the confirmation until 29th April, 1988 when it decided, as per Exhibit N, not to confirm the appointment. The unchallenged testimony of the 2nd defendant that the plaintiff’s
appointment was never confirmed and the letter from the 2nd defendant addressed to the plaintiff, (Exhibit K), which was dated the 2nd February, 1988, requesting the plaintiff to supply to the Appointments and Promotions Board his curriculum vitae for the purpose of assessment for confirmation, were called to our attention in support of the argument. It was then contended, relying on the date when Exhibit K was written that it was wrong to deem that the appointment was confirmed on the expiration of the 3 year’s service. The only occasion when the confirmation could rightly be deemed to have taken place, it is stated would be at the end of the period of 6 years if the plaintiff had been allowed to remain in the employment.
It has been conceded by the defendants that at the expiration on years, there was no confirmation of the appointment. It is then submitted that the conclusion to be drawn from that position is that the probation period had by implication been extended to another 3 years in accordance with the powers of the Appointments and Promotions Board under regulation 22 of Exhibit F.
Next, it was argued that the Appointments and Promotions Board had the power to exercise the powers conferred upon the council of the 1st defendant by virtue of section 20 subsection (i) (a) of the Ondo State University Law, 1982; since the council is thereby authorised to delegate its functions to committees, appointed by it, and the Appointments and Promotions Board is one of such committees. Relying on regulation 22 of Exhibit F, it is further argued that in view of the regulation, it is incontestable that the appropriate authority to confirm appointments, or otherwise, of the Academic Staff in the employment of the 1st defendant, is the Appointments and Promotions Board. Therefore, it is submitted that the action of the Board in not confirming the plaintiff’s appointment should be ascribed to the council since that power was, by virtue of Exhibit F, exercised by the Board on behalf of the council. For the same reason, it is submitted that the Board had the power to appoint or remove Academic Staff in the University.
Finally, it is submitted that the provisions of regulation 25B in Exhibit F have no application to employees of the 1st defendant (like the plaintiff), who have not been confirmed, in view of the provisions of regulation 22 which contrary to regulation 25B, made special and not general provisions on the removal of employees whose appointments have been unconfirmed.
After hearing the appeal, learned counsel to the defendant Professor Jegede, wrote a letter to the court citing the case of Carlen (Nigeria) Ltd. v. University of Jos & anor (1994) 1 NWLR (Pt.323) 631, which he wants to rely on with regard to whether the plaintiff’s appointment was properly terminated by the 1st defendant.
The plaintiff’s case as stated in his brief of argument is as follows. The 3 year probation, which the plaintiff was to serve, expired on 1st September, 1986. At the time his appointment was purportedly terminated (31st May, 1988) he had been in the employment of the 1st defendant for 1 year and 9 months since the expiration of the probation. The probation period had not been extended in writing by the 1st defendant in accordance with section 22 of the Ondo State University Law, which stipulates that every notice emanating from the 1st defendant shall be in writing. It is submitted that by the operation of law, the plaintiff’s appointment was deemed confirmed with effect from 1st September, 1986. Although, there was no offer and acceptance of the confirmation, these are to be presumed from the conduct of the 1st defendant. Support for this proposition is placed on the case Obafemi Awolowo University v. Dr. Onabanjo, (1991) 5 N.W.L.R. (Pt.193) 549 at p.569 G.-H.
The words “subject to the regulations of the University” in Exhibit A should be read as qualifying the word “appointment” therein and “3 years” which relate to probation. It is, therefore, submitted that the statement of 3 years in Exhibit A is specific and, therefore, it overrides the statement “subject to the regulation of the university.” Schroeder & Co. v. Major & Co. Ltd., (1989) 2 N.W.L.R. (Pt.101) 1 at P.19E was cited in support.
It is further argued that the provisions of regulation 22 (i), (ii) and (vi) relied upon by the defendants to show that the plaintiff’s probation period was extendable and that it was so extended by implication cannot support the plaintiff’s case since there was neither express nor implied extension of the probation period.
Relying on section 150 of the Evidence Act and the cases of Joe Igah & ors. v. Amakiri & ors. (1976)11 S.C. 1 at Pp. 12-13; Rourafric & Far Eastern Ltd. v. John Chief Avberake & Ors. (1958) W.R.N.L.R. 92 and Obafemi Awolowo University v. Dr. Onabanjo, (supra) at Pp.566 B.-C., it is submitted that the period of probation agreed by the parties was three years and confirmation was to follow thereafter. The fact that the plaintiff’s appointment continued for 2 years after the expiration of the probation and that he was treated by the 1st defendant as a member of its staff, by placing him on its pay-roll and treating him as a full-fledged employee, would not make it possible for the defendants to resile from the natural result of their conduct and representation. Therefore, the defendants are estopped, as held by the Court of Appeal, from contesting that the plaintiff’s appointment was confirmed.
On whether the Appointments and Promotions Board could validly terminate the appointment of the plaintiff, it is submitted that it cannot and that section 20 subsection (1)(a) of the Ondo State University Law, 1982, which the defendants rely upon, does not empower the council of the university to delegate the function of appointing and terminating the staff of the University to the Appointments and Promotions Board. Assuming (but without conceding) that the council has the power to delegate to the Board the function to terminate the appointment of the plaintiff there is no proof that the Council had made such delegation to the Board. It is argued.
Having narrated the arguments by the parties, I think the main issues to be determined in this case are; what happened to the plaintiff’s appointment after the probation period of 3 years had expired? Whether the probation was extended or the appointment confirmed: was the termination of the appointment proper?
It is not in dispute that the plaintiff was given an appointment as a lecturer by the 1st defendant as per Exhibit A and the appointment was made subject to probation. The contention of the parties is on the duration of the probation. If reliance were placed on Exhibit A. the probation period would be 3 years, but that is not all, because the second paragraph of Exhibit A, which makes mention of the probation period, makes reference also the Regulations of the University, Exhibit F. The paragraph reads:
“The appointment is probationary for a period of 3 years and it is subject to the regulations of the University and to such conditions governing appointments generally as may be made by the Council of the University from time to time.”
Now, it seems to me from this, that the appointment had been made subject to three conditions, namely;
- Probation for a period of 3 years.
- Subject to the Regulations of the University (Exhibit F) and
- Subject to such conditions governing appointments generally as may be made by the Council of the University from time to time.
The first condition had been satisfied by the plaintiff since the period of 3 years had since expired at the time the plaintiff was served with the letter of termination of his appointment-Exhibit E. With regard to the second condition, the Regulations of the University are contained in Exhibit F. Regulations 22 paragraphs (i), (ii) and (iv), which I consider apposite here, provide as follows:-
“22. Confirmation of Appointment
(i) All appointments to posts below the rank of professorship made on permanent basis shall, in the case of members of Academic Staff be subject to three years probation and two years in the case of Administrative and Technical Staff and thereafter subject to consideration for confirmation or termination.
(ii) All appointments subject to confirmation shall lapse at the end of the probationary period unless confirmed or extended by the Appointments and Promotions Board or by the Administrative and Technical Committee as the case may be.”
(vi) Where extension of period of probationary service is granted, member of Academic Staff shall not have more than a total of six years nor member of Administrative and Technical Staff more than a total of four years during which his/her appointment shall be confirmed or terminated. ”
It is the interpretation given to this Regulation that brought about the difference in the decisions of the lower courts. Regulation 22(i) prescribes, as the first condition in Exhibit A (as shown above), that the period of probation in the plaintiff’s appointment as a member of the Academic Staff would be 3 years. But it goes further than Exhibit A to state that at the expiration of the 3 years the appointment would be subject to either confirmation or termination. The Court of Appeal relied on this provision to hold that the plaintiff was deemed to have been confirmed since his appointment was not terminated after the probation. With respect, the Court of Appeal ignored the other provisions of regulation 22 and in particular paragraphs (ii) and (iv) which are very relevant to the facts of the case. To this extent, the Court of Appeal was wrong. The provisions of regulations 22 will have to be read as a whole. Although as headed, the regulations deals with confirmation of appointment only; when all the paragraphs under the heading are read together it would be seen that its scope goes, by far, beyond the confirmation of appointment simpliciter. It is a principle of interpretation of legislation that headings which are given to a section or group of sections cannot be relied upon to construe the plain words of the section or sections, unless such words are found to be ambiguous or there is any doubt as to their ordinary meanings – R. v. Surrey (North-East Area) Assessment Committee (1984) 1 K.B. 29; Hammersmith & City Rly v. Brand (1869) L.R. 4 H.L. 171 and Fletcher v. Birkenhead Corp. (1907) 1 K.B. 205.
Apart from regulation 22(i) there is regulation 22 (ii) which goes further than the former. It provides that apart from the confirmation and termination of the appointment, the period of probation may be extended beyond the 3 years prescribed by regulation 22(i). However, it is silent as to the length of the extension. It is regulation 22 (vi) which states that the extension in the case of Academic Staff must not be for more than 3 years, so that altogether the period of probation will not in the aggregate be more than 6 years.
Therefore, on reading the provisions of regulations 22(i), (ii) and (vi) together, the construction or meaning to be given thereon is that where an appointment to a member of the Academic Staff of the 1st defendant is probationary, it shall in the first instance be for a period of 3 years. If at the end of the period of three years, the University is satisfied with the performance of the employee, it may either confirm the appointment or it may extend the period of the probation but in doing so it must not extend it by more than 3 years.
The decision to confirm the appointment or extend the probation is that of the university and not the member of staff concerned. Again if at the end of a period of 3 years of the probation, the University is not satisfied with the performance of the employee or it did not need his service any more, it may terminate the appointment. It is in the context of this meaning that the facts of this case should be considered. This is what the Court of Appeal failed to do.
The trial court, on the other hand, restricted itself to intepreting paragraph 8, of Exhibit A1 (quoted above) vis-a-vis regulation 22(vi) , and without adverting to regulation 22(i); and (ii) came to the following conclusion:
“It is clear from that provision (of paragraph 8) that the plaintiffs appointment can only be confirmed after and not before he has served for three years. When that provision is read along with Article 22 (vi) of the Rules (sic regulation 22 (vi) which provides that probationary period of a member of the Academic Staff shall not be more than a total of six years. It means that the probationary appointment of an academic staff can only be confirmed after his third year of service but not later than his sixth year of service in case he was granted an extension.”
In my view, and from what I have stated earlier on, this decision of the High Court is correct, even though it failed to take into consideration the provisions of regulation 22 (i) and (ii) of Exhibit F.
With regard to the third condition in Exhibit A, no reference was made to any condition laid by the Council of the University which came into force after the plaintiff assumed his appointment with the 1st defendant. There is, however, the Memorandum of Appointment (Exhibit A1) which Exhibit A referred to in its (Exhibit A) last paragraph, which reads:
“If you accept the offer, please sign the duplicate copy of the Memorandum of Appointment over a twenty-kobo stamp, stating how soon you expect to be able to take up your appointment and return it to me together with your medical certificate as soon as possible.”
Undoubtedly, Exhibits A1 forms part of Exhibit A in view of the signature of the plaintiff appended to it, showing in the certificate thereof (quoted above) that he “accepted the terms and conditions set forth above.” These terms and conditions are (a) the ones stated in Exhibit A, which include the Regulations Governing the Service of Senior Staff (Exhibit F) and (b) those contained in the memorandum of Appointment (Exhibit A1). Paragraph 8 of Exhibit A1(quoted above) further states that after a period of 3 years the appointment shall be subject to confirmation and if confirmed shall become permanent.
Now, Exhibit A1 may be considered as part of the third condition in Exhibit A. Exhibit A is silent about what follows after the period of probation. It is Exhibit A1 in paragraph 8 thereof and Exhibit F in regulation 22 (i)(ii) and (vi) that make reference to confirmation. Exhibit A1 merely talks of confirmation after 3 year’s probation while Exhibit F goes further than that to state that the probation could be extended before confirmation or the appointment could be terminated after the probation. Since all the documents – Exhibits A, A1 and F form the conditions of the plaintiff’s service, they must be read together. If that is done it becomes clear that if the contents of Exhibit F are taken, they cover what Exhibits A and A1 provide and in addition more.
When the plaintiff’s period of probation expired and he was allowed to remain in the service of the 1st defendant did his appointment in fact lapse in accordance with regulation 22(ii), which reads:
“(ii) All appointments subject to confirmation shall lapse at the end of the probationary period unless confirmed or extended by the Appointments and Promotion Board ……..”
since he was neither confirmed nor his probation extended? The presumption is that his appointment remained extant and could not be said to have lapsed. This premise is in accord with section 150 of the Evidence Act (now section 151 of Cap. 112 of the Laws of the Federation of Nigeria, 1990) which provides:-
“150. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing,”
See also Joe Igah & Ors v. Amakiri & Ors., (supra), where this court (per Obaseki, Ag. J.S.C.) observed as follows at p.12 thereof:
“…….. if a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believe and acts, the first is estopped from denying the existence of such a state of facts.”
What is in contention in this case is not that the plaintiff ceased to be in the employment of the first defendant after the expiration of his probation, but what was the nature of the employment after the period of probation? Was it on further probation by extension or on a permanent (i.e. confirmed) basis as provided under regulation 22(vi)? Under regulation 22(vi) it is possible for the appointment to be either confirmed or extended for a further period of probation of up to 3 years. If what happened after the first three years were an extension of the probation, then, the plaintiff had had about 21 months of that. Similarly, if it were a confirmation, the duration of the confirmation had been for the same period before the action in this case was instituted by the plaintiff. However, in view of what transpired in the course of the plaintiffs employment, I am inclined to hold that what the plaintiff enjoyed after the expiration of the probation was an extension of the probation and not confirmation I come to this conclusion in the light of the report of the Faculty of Social Sciences on annual Review on Academic Staff for the period 1986/87, which was issued on 18th January 1988 (Exhibit J. Page 2 of the report reads in part thus:-
“Dr. E.A. Folayan – Lecturer Grade II Assessment
Dr. Folayan assumed duties in the University on September 1, 1983 as Lecturer Grade II. His present position is Lecturer Grade II. The reports reaching the Panel was that he is a good teacher who communicates effectively with his students.
He has published an article in International Journal of Economics. A monograph of this has also been published by the Vantage Press, New York. These two publications indicate that he is making progress in research and he needs to be encouraged further.
Recommendation
It is recommended that Dr. Folayan be promoted Lecturer Grade Ion the basis of his (1) effective teaching, (2) his publications, (3) the fact that he has served 4 years as Lecturer Grade II.
The panel scored Dr. Folayan as follows:-
45 for research; 20 for teaching and 8 for service. His total score was 73. The Panel recommends the confirmation of appointment for Dr. Folayan with the University till retiring age.” (emphasis mine).
It is significant that Exhibit J. was tendered in evidence, at the hearing in the High Court, by the plaintiff. So that at the time the action was instituted, the plaintiff was quite aware of the fact that his appointment with the 1st defendant had not been confirmed and a plea for the confirmation had been made by the Board of the Faculty of Social Science at its meeting which was held on 13th January, 1988. In the testimony of the plaintiff, he said in his evidence-in-chief:-
“On 13/1/88 there was a Faculty of Social Services Board review meeting. I was not present at the meeting but I later saw a copy of the minutes of the decision reached at the meeting. I served the defendants notice to produce before this court a copy of the minutes of that meeting. The copy now produced by defendants and shown to me is the said copy. It is admitted without objection as Exhibit J. The portion dealing with me is on page 2 of Exhibit J.”
There was no evidence at the hearing of the case in the High Court which could be regarded as suggesting or indicating that the plaintiff believed that his appointment had been confirmed by reason of its not being terminated by the 1st defendant at the end of the 3 year’s probation.
I now turn to the question whether the appointment was properly terminated. By paragraph 6 of the Memorandum of Agreement (Exhibit A1), which has been quoted earlier in this judgment, a non-professorial member of the academic staff is entitled to a three months notice in writing that the Council of the University intends to terminate his appointment or “the payment of the amount applicable to the period of notice unexpired.” And on doing either of these, the appointment terminates forthwith. The power to terminate the appointment of the plaintiff is clearly vested in the Council of the University.
The Council is created under section 2 subsection (i) of the Ondo State University Law, 1982, and section 6 subsection (1) of the Law specifies the function of the Council to “be the governing body of the University and shall be charged with the general control and superintendence of the policy, finances and property of the University.” Under section 20 of the Law, the council is empowered to appoint committees to exercise some of its functions. The section reads:
“20(1) Any body of persons established by this law shall without prejudice to the generality of the powers of that body have power to appoint committees which need not consist exclusively of members of that body, and authorise a committee established by it:
(a) to exercise, on its behalf such of its functions as it may determine …..”
The learned trial Judge found that the parties accepted that the Regulations Governing the Service of Senior Staff (Exhibit F) binds them. He also found that-
“There is no doubt that the Regulations Governing the Service of Senior Staff Exhibit F were made pursuant to the powers conferred on Council of the University by virtue of the powers conferred on them in the Ondo State University law, 1982 as amended.”
These findings have not been challenged before us nor are they shown to be perverse.
The letter terminating the appointment of the plaintiff (Exhibit E) which was written on 31st May, 1988 by the 2nd defendant reads in part thus:
“APPOINTMENT WITH THE UNIVERSITY
I am writing to inform you that the Appointments and Promotions Board at its meeting on Friday, 29th April, 1988 reviewed your appointment and the totality of your career in the University and was unable to confirm your appointment. The Board unanimously decided that your probationary appointment in the university be terminated with immediate effect.
Your appointment as a Lecturer in the Department of Economics in this University is therefore terminated with effect from today Tuesday, 31st May, 1988. ………
By a copy of this letter, the Bursar is being informed to pay you three months salary in lieu of notice and also to work out your other entitlements as well as your indebtedness to the University, so that they can be settled.
(Signed)
J.G.O. Adegbite
Registrar.”
There is no doubt that the contents of this letter satisfy the condition of appointment in paragraph 6 of Exhibit A1, for the termination of the plaintiff’s appointment. But what remains unanswered is the question: whether the Council of the University did delegate to the Appointments and Promotions Board the power to terminate the appointment, as envisaged by section 20 subsection (1)(a) of the Ondo State University Law, 1982. It is quite clear that the council has the power to delegate some of its functions to a committee, which may be called by any name so long as it is a subsidiary body of the council. Exhibit F shows, in regulation 3 thereof, that the Appointments and Promotions Board is empowered to exercise the function of the council with regard to matters such as appointments, promotions, discipline and termination of the appointment of the different categories of employees of the university. The membership of the Board, which includes the Vice-Chancellor, members of the Senate, Deans of Faculties and the Registrar of the University, cannot under the normal circumstances be expected to exercise those powers without the authorisation of the council.
By section 149 subsections (1) and (2) of the Evidence Act (now section 150 subsections (1) and (2) of Cap. 112 of the Laws of the Federation of Nigeria, 1990) there is a presumption of regularity when an official act is shown to have been done in a manner consistent with the procedure laid down or where the officer performing the function did so in a public capacity. The subsections read:-
“149(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled so to act.”
In Yerokun v. Adeleke (1960) 5 F.S.C. 126 at Pp.129; (1960) SCNLR 267at 270-271, the Federal Supreme Court. per Brett, FJ. (as he then was) stated as follows:-
“Mr. Fani-Kayode, who appeared for Yerokun, submitted that it was not proved that Yerokun was regularly appointed, on the ground that the court could not take cognizance of any notice which appeared in a Gazette which was not produced, and that Mr. Brett’s evidence, by showing that it was he and not the Governor-General who made the appointment, rebutted the presumption of due appointment which would otherwise have arisen under s.147(2) (sic 149(2) of the Evidence Ordinance (now s.150(2) of Cap. 112) from the fact that Mr. Yerokun acted in the office. We do not accept this submission. Mr. Brett’s evidence may fail to prove positively that the appointments was validly made, but the office being, as we have held, one to which the Governor-General could lawfully delegate his power of appointment, Mr. Brett’s evidence is in no way inconsistent with the presumption arising under the Evidence Ordinance, and since no evidence to rebut the presumption was given we consider that Irwing, Ag, CJ., was justified in accepting it as proved that Yerokun was validly appointed.” (Parenthesis mine)
In the present case, the presumptions under section 149 subsection (1) and (2) of the Evidence Act, apply to the fact that the Appointments and Promotions Board is a delegatee of the Council of the university. The burden is on the plaintiff, who challenged the competency of the Board, to rebut the presumptions by evidence and this he did not do in the trial court or indeed in this or the lower court. I, therefore, hold that the Appointments and Promotions Board had the power to terminate the appointment of the plaintiff and since it complied with the conditions governing the appointment of the plaintiff, it had done so lawfully.
Other subsidiary or auxiliary issues including the applicability of regulation 25B of Exhibit F have been raised and argued by the parties. As those issues are not necessary for our decision nor are they capable of affecting the conclusions which I have so far reached in this judgment, I do not deem it necessary to allude to them. In the result, this appeal succeeds. The decision of the Court of Appeal is hereby set aside. For the avoidance of doubt I reiterate that the appointment of the plaintiff was lawfully terminated in accordance with the terms in Exhibit E. The 1st and 2nd defendants are entitled to the costs of this appeal which I assess at N1 ,000.00 against the plaintiff.
Other Citation: (1994) LCN/2611(SC)
