Prof. B. J. Olufeagba & Ors V. Prof. S.o. Abdul – Raheem & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C

This is an appeal against the majority judgment of the. Court of Appeal, Ilorin Division handed out on 12th July, 2006 in which it reversed and set aside the judgment of Olayiwola, J. of the Federal High Court, Ilorin delivered on 16th July, 2005.

In paragraph 21 of the statement of claim, the appellants herein, as plaintiffs at the trial court, claimed against the respondents herein as defendants thereat as follows:-

“21. WHEREOF the plaintiffs’ claim against the defendants are as follows:-

(a) A declaration that the defendants’ letter dated 22nd May, 2001 to the plaintiffs titled ‘Cessation of Appointment’ purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires, null and void and of no effect whatsoever.

(b) A declaration that the plaintiffs are still in the service of the 3rd defendant.

(c) A declaration that the defendants are bound to comply with directive of Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the pro-chancellor of the 4th defendant and the 1st defendant.

(d) A declaration that the defendants are not entitled to summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act Cap. 455 Laws of the Federation and other relevant statutes.

(e) A declaration that the purported termination of the plaintiffs’ appointment by the defendants under

the guise of ‘Cessation of Appointment’ or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.

(f) A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act Cap. 455 Laws of the Federation 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.

(g) A declaration that the purported termination of plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria 1999.

(h) An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.

(i) An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February, 2001 till the day of judgment and thenceforth.”

The defendants filed a joint statement of defence in which they joined issues with the plaintiffs. At the trial, each side of the divide called two witnesses.

P.W.1 was Prof. B. J. Olufeagba. He testified that all the plaintiffs were lecturers of University of Ilorin who were sacked for embarking on strike action as members of Academic Staff Union of Universities (ASUU). Through him, Exhibits 1-261 were tendered and admitted in evidence. He denied that the plaintiffs received letters of ultimatum asking them to resume work. He maintained that they were not queried and taken through any disciplinary procedure before ‘cessation of appointment’ letters were issued to the plaintiffs. He said that the national negotiating team had agreed that no one should be victimized as a result of the strike action. He said that the Federal Government directed the National Universities Commission (NUC) to request the recall of the sacked lecturers vide Exhibit 122 but the defendants disobeyed the directive. He stressed that the letters of ‘cessation of appointment’ were based on misconduct. He maintained that neither he nor any other plaintiff was a party to the case between the Federal Government and Academic Staff Union of Universities at the Industrial Arbitration Panel.

P.W.2 was Prof. Taiwo Oloruntoba-Oju. Through him, Exhibits 262-265 were admitted in evidence. He testified that lecturers were prevented from entering the University premises during the period of strike. He admitted that a few of the plaintiffs had secured employment ‘to keep body and soul together’.

D.W.1 was Mr. Marcel Eya Ogbonna, a Chief Executive Officer in charge of Administration at the University. Through him, Exhibits D3 – D42 were admitted in evidence. He maintained that the appointments of the plaintiffs were properly terminated for failure to discharge their duties. He said the Federal Government did not sanction the defendants for disobeying the directives contained in Exhibit 122. He said the Federal Government took National Academic Staff Union of Universities to the Industrial Arbitration Panel (IAP) for threatening another strike if the lecturers were not reinstated. He conceded that the ‘cessation of appointment’ was based on allegation of misconduct.

D.W.2 was Mr. Titus Agboola Adeyemi. Through him, Exhibits D45a and D45b were tendered in evidence. He was a Principal Assistant Registrar who maintained that the vacancies created after the termination of plaintiffs’ appointment had been filled’ by the University in the interest of the students.

The learned trial Judge was properly addressed by learned counsel on both sides. He applied the relevant laws to the facts garnered by him and in his considered judgment delivered on 16th July, 2005,’ he found in favour of the plaintiffs and held as follows:-

“In the light of the foregoing, it is my opinion that the plaintiffs are entitled to the reliefs sought from court in reliefs 1 – 9. It is also hereby ordered that the defendants should reinstate and/or restore the plaintiffs to their posts in the University of Ilorin with all their rights, entitlements and other perquisites of their offices. The defendants are also hereby ordered to pay to the plaintiffs all their salaries and allowances from February 2001 till day of judgment and thenceforth except the two who are dead, whose salaries and allowances should cease on the date of death.”

The defendants felt unhappy with the decision of the learned trial judge and appealed to the Court of Appeal vide Notice of Appeal filed on 27th July, 2005. In its own judgment handed out on 12th July, 2006, the Court of Appeal, by a majority decision, allowed the appeal and dismissed the plaintiffs’ case.

The plaintiffs felt irked by the stance taken in the majority decision and in expression of their total displeasure with the majority judgment of the Court of Appeal, filed with the leave of that Court a Notice of Appeal containing eight grounds of appeal.

As mandated by the Rules of this court, briefs of argument were filed on behalf of the parties. The appeal was heard by this court on 28th September, 2009. At the earliest opportunity, Mallam Yusuf Ali, Senior Counsel for the respondents alerted the court on the preliminary objection to grounds of appeal raised and argued in the brief filed on behalf of the respondents. That is how it should be. It is a clarion call that same be considered at the on set.

“Mr. J. O. Baiyeshea, Senior Counsel for the appellants adopted the Appellants’ brief of argument filed on 26-4-07 as well as the Reply Brief filed on 20-3-08 and urged that the appeal be allowed. In the same vein, Mallam Yusuf Ali, SAN adopted the respondents’ brief of argument filed on 22-6-07 and urged that the appeal be dismissed.

I now have the duty to consider the preliminary objection to the propriety of the grounds of appeal as raised and argued in the respondents’ brief.

On behalf of the respondents, it was submitted that the court can only assume jurisdiction over juristic persons. Learned counsel cited the cases of Nigerian Nurses Association v. A. G. Federation (1981) 1 FNLR 55 at 60; Carlen Nigeria Limited v. Unijos & Anr (1994) 1 NWLR. (Pt. 323) 63. It was pointed out that since the 3rd, 9th and 29th appellants are dead; the appeal becomes incompetent and liable to be struck out. The cases of Okotie v. Olugor (1995) 5 SCNJ 271 and Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163 were cited.

Learned counsel submitted that where there is an incompetent appeal, it robs the appellate court of jurisdiction as the condition precedent for adjudication is missing and subsequent steps taken on the appeal will amount to nullity as decided in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348. He submitted that vide order 8 Rule 9 (5) of the Supreme Court Rules, the effect of a dead party to an appeal is the striking out of same in its entirety.

Learned counsel submitted that the rules of this court disallow the filing of grounds of appeal that are general in terms, prolix, argumentative and unwieldy. Further, he stressed that where the complaints in the particulars to a ground are independent complaints on their own, then the particulars and the ground will be struck out. He asserted that where a ground of appeal is vague, this court will strike out same vide Order 8 Rule 2 (2), (3) and (4) of the Rules of this court. He felt that grounds 2,3,5,6,7 and 8 of the grounds of appeal suffer from all the vices prescribed by the provisions of the stated rules of court. He maintained that the grounds are not only vague, argumentative and general in terms but they do not disclose reasonable ground on which this court will adjudicate. He cited the cases of Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23 at 31, ASR Co. Ltd v. O. O. Biosah v. Ede (1995) 3 NWLR (Pt. 385) 564 at 577.

Learned counsel submitted that a ground of appeal can only be predicated on the ratio decidendi of a case and not against an obiter dictum. He felt that a ground of appeal that is predicated on the concurring opinion of a justice as in ground 4 of the grounds of appeal is incompetent and liable to be struck out. He cited the cases of In Re: Shyllon (1994) 6 NWLR (Pt. 353) 735 at 752, Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590. He urged that grounds 2, 3, 4, 5, 6 and 7 be struck out and the appeal should be dismissed. He cited Kurfi v. Mohammed (1993) 2 NWLR (Pt. 277) 602 at 612.

On behalf of the appellants, senior counsel pointed it out in the Appellants’ Reply Brief that the dead parties in the case of Nigeria Nurses Association v. A. G. Federation (supra), were the sole parties as against three (3) out of forty-four (44) appellants in this case and same cannot invalidate the whole case on appeal. He felt that the case of Carlen Nigeria Ltd v. Unijos has no relevance to this case. Learned counsel further pointed it out that each of the remaining 41 appellants is in court in his/her own right and claims granted will enure to each of them individually and personally. He felt that the death of three (3) out of 44 appellants cannot invalidate the whole appeal or lead to the striking out of same. He cited the case of Momodu v. Momodu (1991) 2 SCNJ 15 at 21-22.

Learned counsel observed that objection in respect of grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal appears half-hearted and not specific. He asserted that it is general in nature and there is a failure to demonstrate how the stated grounds are defective. He submitted that none of the grounds of appeal is argumentative, vague or prolix. He observed that grounds 3, 4, 5, 6, 7 and 8 have been quoted directly from what the justices stated in making their decision, being challenged in this appeal.

Learned counsel observed that a ground of appeal like ground 4 can be directed at a concurring judgment. He cited Nwana v. FCDA (2004) All FWLR (Pt. 220) 1245 at 1254. He felt that the cases of In Re: Shyllon (supra) and Egbe v Alhaji (supra) are not relevant to this appeal. Learned counsel urged that the preliminary objection be dismissed.

The respondents objected to ground 1 of the grounds of appeal which, without its particulars, reads as follows:-

“GROUND ONE

The majority justices of the Court of Appeal erred in law by holding that the whole action of the plaintiffs/appellants was rendered incompetent by reason or the death of two(2) out of the Forty-four (44) plaintiffs during the pendency of the case at the trial court.”

It goes without any shred of doubt that the court can only assume jurisdiction over juristic persons. If a sole party to an appeal dies and there is no substitution, it hardly needs any gain-saying that the appeal ends. This was the position in the case of Nigerian Nurses Association v. A. G. Federation (supra).

In this appeal, it is agreed that three (3) out of the forty-four (44) appellants have passed on. I do not for one moment feel that this should invalidate the whole case on appeal. This is because each of the remaining 41 appellants is in court in his/her own right, and if any claim is granted, such will enure to each of them individually and / or personally. Without any doubt, I say that the whole case cannot be struck out for this reason as strenuously urged by the respondents. This is as decided in the case of Momodu v. Momodu, (supra).

In short, ground 1 of the grounds of appeal, as reproduced above, is competent. The objection raised to same does not hold water.

The respondents attacked grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal. Reliance was placed on Order 8 Rule 2 (2) (3) and (4) of the Supreme Court Rules, 1999 which provides as follows:-

“2 (2) If the grounds of appeal allege misdirection or error in law the particulars and the nature of misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(4) No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its- own motion or on application by the respondent.”

Fom the above, it is glaring that a ground of appeal can only be competent if the particulars and the nature of the alleged misdirection or error is clearly stated. The ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against a ratio decidendi in the decision as opposed to an obiter dictum. A ground of appeal must be directed at the decision of the court below. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; A.G. Oyo State v. Fairlakes Hotels (1988) 5 NWLR (Pt. 92) 1.

The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out. See Honika Sawhill Nig. Ltd. v. Hoff (1994) 2 NWLR (Pt.326) 22; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

A clear perusal of grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal shows to me that none of them is general in terms, vague or argumentative. They disclose reasonable grounds in which complaints are directed at ratio decidendi of the decision of the court below. Ground 2 complains about the error in law in holding that appellants’ appointments were properly terminated under section 15(3) of the, University of Ilorin Act, 1990. Ground 5 relates to the holding of the court below that the appellants ‘waived’ their rights to employment with statutory flavour under section 15 of University of Ilorin Act by reason of signing memorandum of appointment. Grounds 3, 6, 7 and 8 relate to salient complaints touching on vital pronouncements by the court below. In all, adequate and precise particulars were supplied to each of the grounds. I cannot surmise how those grounds can be blown off with a wave of the back-hand.

It has been variously held that rules of court must be obeyed. See Afolabi v. Adekunle & Ors. (1983) 14 NSCC 398, 405; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143. But in obeying the rules of court, technicality should be avoided so as to pave way for the current notion of substantial justice. In short, I do not see my way through in striking out any of the stated grounds. They are pronounced to be in order and accordingly saved.

The objection to ground 4 of the grounds of appeal rests on the complaint that it relates to a concurring judgment. The decision of this court in Nwana v. FCDA, (supra) at page 1245 settles the point. Opinions expressed in a concurring judgment form part of a court decision. In short, ground 4 of the grounds of appeal is basically alright. The appellants should be allowed to ventilate their complaint as in ground 4 of the grounds of appeal.

In short, all the eight grounds of appeal are substantially in order. The appeal was initiated with the process and in compliance with the rules of court. This court is accordingly imbued with jurisdiction which is basic and fundamental to determine this appeal. A judgment which is delivered without jurisdiction is null and void. See Timitimi v. Amabebe 14 WACA 379; Mustapha v Governor of Lagos State (1987) 4 SCNJ 143,’ Tukur v. Governor of Gongola State (1987) 4 NWLR (Pt. 117) 517 at 545; Madukolu v. Nkemdilim (1962) 1 All NLR 578 at 594.

I hereby overrule the preliminary objection for want of merit I now proceed to determine the appeal on its merit.

The seven issues formulated on pages 6-7 of the appellants’ brief of argument for determination in this appeal read as follows:-

“1. Whether the majority justices of the court below were right in holding that the whole action of the plaintiffs/appellants was rendered incompetent by reason of the death of two (2) out of the forty-four (44) plaintiffs before the case was concluded at the trial court.

2. Whether the majority justices were right in holding that the appellants appointments were properly terminated by the respondents by virtue of section 15(3) of the University of Ilorin Act Cap. 455 Laws of the Federation 1990 and without regard to section 15(1) on procedure for termination of appointment.
3. Whether the decision of the learned majority justices of the court below, that the appellants were offered opportunity of fair hearing by the respondents (and that the appellants rejected this) before their appointments were terminated was based on any pleadings and evidence on record.
4. Whether the learned majority justices of the court below were right in holding that the appellants ‘waived’ their statutorily guaranteed rights to fair hearing merely by reason of signing Memorandum of Appointment on assumption of duty.
5. Whether the majority justices of the court below were right in holding that the appellants are not entitled to order for reinstatement, and for payment of their salaries, allowances and entitlements. And

whether the said justices were right in holding that the appellants have secured alternative employment elsewhere and that their positions in the University have been filled by the respondents.

6. Whether the majority justices of the court below were right in holding that the appellants were not entitled to their salaries, allowances and other entitlements by reason of alleged participation in strike.
7. Whether the majority justices of the court below were right in holding that the appellants’ case was caught by issue estoppel.”

On behalf of the respondents, the five issues decoded for a due determination of the appeal contained on pages 18-19 of their brief of argument read as follow:-

“1. Whether the decision of the Court of Appeal in dismissing the appellants’ case by reason of the death of two (2) of the appellants can be assailed in the circumstances of this case.

2. Whether the Court of Appeal was not right in holding that the appellants’ appointments were properly terminated in the circumstances of the case.
3. Whether the Court of Appeal was not right in holding that the appellants waived their right under section 15 of the University of Ilorin Act Cap. 455 LFN 1990 when they signed the memorandum of appointment.
4. Whether the Court of Appeal was not right in holding that the appellants were not entitled to their claim before the trial court.
5. Whether the Court of Appeal was not right in holding that the appellants’ right to fair hearing was not breached in the circumstances of this case.”

The seven (7) issues couched for determination of the appeal by the appellants appear to be all embracing. Indeed, they subsume the issues formulated by the respondents; as it were. I now proceed to consider the issues contained in the appellants’ brief of argument.

ISSUE 1

“Whether the majority justices of the court below were right in holding that the whole action of the plaintiffs/appellants was rendered incompetent by reason of the death of two(2) out of the forty-four(44) plaintiffs before the case was concluded at the trial court.”

On behalf of the appellants, it was submitted that the decision of the court below which stated that the whole action in the trial court was rendered incompetent merely because two(2) out of the forty-four(44) plaintiffs died before the case was concluded is erroneous and has not basis. Learned counsel observed that the action was filed jointly while the benefits are to accrue to the plaintiffs severally. He maintained that in effect, the joint action survives automatically to the other plaintiffs. He cited Smith v. London and North Western Railway (1853) E & B 69, Joseph Adebayo Osaguma v. Mil. Gov. Ekiti State (2001) SCJN 30. He felt that as a general rule, cause of action will not survive a dead plaintiff only in actions for libel, defamation or sedition vide the decision in Oguigo v. Oguigo (1999) 12 SCNJ 191.

Learned counsel submitted that the learned justice in the lead judgment failed to consider the appropriate rules of the trial court to wit: Order 12 Rules 30, 31 and 32 of the Federal High Court Civil Procedure Rules, 2000 which point at the conclusion that the death of the two plaintiffs was not fatal to the plaintiffs’ case and that the whole case is not rendered incompetent.

Learned counsel observed that by virtue of the provisions of Regulations 11.3.0 to 11.5.2 at pages 65 and 66 of Exhibit 81, the Revised Senior Staff Regulations of the 3rd respondent, a suit of this nature survives the death of a plaintiff as it involves pecuniary benefits or property in estate which should go to the next-of-kin or legal representative. He submitted that even without an application to the court, the next-of-kin of a deceased staff of the University will ordinarily be entitled to claim the benefits of a deceased husband or parent.

Learned counsel felt that the case of Whyte v. Jack (1996) NWLR (Pt. 431) 407 at 422 relied upon by lead writer of the judgment of the court below is inapplicable to the facts and circumstances of this case.

On behalf of the respondents, it was submitted that with the demise of the 3rd and 29th plaintiffs, they ceased to be juristic personalities and could not maintain an action. He again referred to Carlen Nigeria Limited v. Unijos (supra) and cited Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533. He opined that a court will not assume jurisdiction when an aspect of the case is not within jurisdiction. He cited the case of Tukur v. Governor of Gongola State (1989) 3 NSCC 225 at 241; Okoroma v. UBA (1999) 1 NWLR (Pt. 587) 359 at 382.

Learned counsel felt that since the two deceased plaintiffs were not substituted, the whole action should be struck out. He cited the case of Ajayi v. Igbinoghene (2001) 15 NWLR (Pt. 735) 33 at 45-46. He maintained that order 12 Rule 32 is not applicable to the facts of this case.

Learned counsel further submitted that the appellants’claims were personal and enure to their benefits alone and their rights died with them. He again referred to Whyte v. Jack (supra). He urged that the appeal be dismissed on this score.

In this action, it is clear that for convenience and avoidance of multiplicity of actions, the suit was filed by the 44 plaintiffs jointly while the benefits are to accrue to each of them severally. There is sense behind same as pointed out in the case of Ige v. Farinde (1994) 7 NWLR (Pt. 354) 42. In the prevailing circumstance of the death of two of the 44 plaintiffs in a joint action, the same survives to the other plaintiffs. See Smith v. London & North Western Railway (supra). I agree that it is only in actions for libel or defamation or sedition that cause of action cannot survive a dead plaintiff as pronounced by this court in Oguigo v. Oguigo (supra).

It is pertinent at this point to refer to Regulation 11.3.1 of Exhibit 81, the Revised Senior Staff Regulations which provides as follows:-

“If a member of staff who has completed 10 or more years of continuous service dies in service, his registered next-of-kin or designated survivors shall be entitled to a sum equivalent to the deceased’s salary for one year as well as to gratuity and pension such deceased member of staff would have been awarded had he retired on the date of his death.”

A proper appreciation of the above is that even though the two plaintiffs died during the hearing at the trial court, they would be presumed to have died as officers of the 3rd respondent whose death benefits would enure to the benefit of their next-of-kin, heirs and personal representatives. The 2nd leg of the claim stated in leg 21(j) of the plaintiffs’ claim to wit: ‘An order compelling the defendants to pay the plaintiffs all their salaries and allowances from February 2001 till the date of judgment and thenceforth’ no doubt, survives the dead plaintiffs.

Order 12 Rule 30 of the Federal High Court (Civil Procedure) Rules, 2000 provides as follows:-

“The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives.”

Order 12 Rule 31 states as follows:-

“If there are two or more plaintiffs or defendants and one of them dies, and if cause of action survives the surviving plaintiff or plaintiffs ————the suit shall proceed at the instance of the surviving plaintiff or plaintiffs—-”

I have earlier depicted that the cause of action survives the dead plaintiffs. Their deaths cannot cause the suit to abate. It was erroneous for the majority justices of the court below to have found otherwise. The case of Whyte v. Jack (supra) heavily relied upon by the majority justices of the court below is inapplicable to the peculiar facts and circumstances of this case. It is not a sole plaintiff that died in this case in hand where there are 44 plaintiffs. The death of the two plaintiffs should not affect the rights and status of the remaining living plaintiffs. The suit survived and was rightly continued at the instance of the living plaintiffs. The death of two (now three) plaintiffs did not invalidate the case of the plaintiffs. It was preposterous to have found otherwise. Such led to a glaring miscarriage of justice. The issue is resolved in favour of the appellants.

ISSUE TWO

“Whether the majority justices were right in holding that the appellants’ appointments were properly terminated by the respondents by virtue of section 15(3) of the University of Ilorin Act Cap 455 Laws of the Federation, 1990.”

Arguing issue 2, learned counsel for the appellants observed that issue of ‘good cause’ in virtue of section 15(3) of the University of Ilorin Act, Cap 455 Laws of the Federation, 1990 was not part of the respondents’ case at the trial court. He stressed the point that the respondents’ case at the trial court was that the appellants were not sacked for misconduct or for any offence. He felt that issue of ‘good cause’, a fresh issue seriously protested against by him, was wrongly allowed by the majority justices of the court below contrary to many decisions of this court. He cited the cases of Babalola v. State (1989) 4 NWLR (Pt. 115) 264; Akuneziri v. Okenwa (2000) 12 SCNJ 242 at 267; Kwajaffa v. Bank (2004) 5 SCNJ 121 at 136-137.

The respondents’ counsel kept mute on the above salient point in the brief of argument of the respondent. During his oral submission when the appeal was heard, senior counsel for the respondents maintained that they joined issue and made ‘further argument’ at the court below in respect of ‘good cause’ . That is to say it was a fresh issue which was surreptitiously brought up at the court below even without leave of that court.

That was not good enough. This court has often pronounced that there should be consistency in prosecuting a case at the trial court as well as in the appeal court. There should be no somersault. This is because such poly often engenders giving the other side surprise from the art of playing a fast one. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248.

An appeal ordinarily presupposes the existence of a decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party. Since there was no decision by the trial court in respect of the point relating to ‘good cause’ advanced before the court below, it lacked the vires to consider same on appeal. See Babalola v. The State (supra).

It should be pointed out here that the respondents who maintained at the trial court that the appellants were not sacked on disciplinary grounds or for any reason cannot turn round at the court below to canvass the point relating to ‘good cause’. That is akin to blowing hot and cold in the same matter and a court. of record should not allow same. The respondents made a case diametrically opposed to the Case strenuously canvassed in the High Court at the court below. They still continue with same in this court. It is odd and ought not to be permitted. See Akuneziri v. Okenwa (supra) at page 267; Kwajaffa v. Bank (supra) at 136,-.137.

In short, it was erroneous for the majority justices to approve the ploy embarked upon by the respondents and wrongly act on it to the detriment of the appellants. This should have been the end of this issue. I shall however expatiate briefly on the application of the provision of section 15 (3) of the University of Ilorin Act 1990 relating to ‘good cause’.

It is extant on the faces of Exhibits 82-119 and 218-261 ‘cessation of appointment’ letters that the appellants were accused of misconduct to wit: failure to obey council directives. The respondents’ witness – DW1 admitted same that the appellants were accused of misconduct by the respondents and that they were not heard before they were unilaterally sacked.

It is glaring that the 4th respondent cannot jump into a conolusion under section 15 (3) of the Act to say that the conduct of a staff is of scandalous or disgraceful nature and as such the staff concerned is no longer able to discharge the functions of his office without giving him notice of the allegation and opportunity of being heard. Due process prescribed by section 15 (1) of the Act must be followed as ‘good cause’ can only be determined in a judicial enquiry where fair hearing will be afforded the staff who is accused. See Bamgboye v. University of Ilorin (1999) 6 SCNJ 2.95 at 355 (2002) 2 NWLR (Pt. 622) 290 at 352-353; 349.

In a similar situation in the case of Adeniyi v. Gov. Council Yabatech (1993) 6 NWLR (Pt. 300) 426 at page 457, Karibi-Whyte, JSC pronounced as follows:-

“It is an important principle of construction of statutes, that the section should be read as a whole.

—–Section 12 (3) deals with cases of termination or suspension of any member of staff for good cause. ‘Good cause’ has been defined to include appellants for ‘good cause’ without recourse to the salient provisions of section 15 (1) of the Act. The majority judgment crossed the line when it was concluded that section 15 (3) of the Act is a departure from section 15(1) of the same Act and as such, previous decisions of this court are not applicable. That position, no doubt, was wrong in law. Section 15 (3) is not a licence to sidetrack the disciplinary procedure set out in section 15(1) of the Act once misconduct is imputed against the appellants as herein done.

I have no atom of hesitation in resolving issue 2 against the respondents and in favour of the appellants.

ISSUE 3

“Whether the decision/conclusion of the learned majority justices of the court below that the appellants were offered opportunity for fair hearing by the respondents and that the appellants rejected this before their appointments were terminated was based on any pleadings and evidence on record.”

On behalf of the appellants it was observed that the learned majority justices wrongly decided that the appellants’ appointments could be summarily terminated as the respondents had done by virtue of section 15 (3) of the University of Ilorin Act. He felt the opinion that the appellants were given opportunity for fair hearing is contradictory and baseless.

Learned counsel maintained that there was clear imputation of misconduct by the respondents against the appellants in Exhibits 218-261 and Exhibits 82-119 which was also confirmed by DW1 under cross-examination. He asserted that the appellants were not given any opportunity for fair hearing.

Learned counsel submitted that it is not the duty of the court below to fish for non-existent evidence or presume same for a party when the party concerned did not advance or produce such evidence. He cited the cases of Milton Paul Ohwovoriole (SAN) v. Federal Republic of Nigeria & 3 Ors. (2003) FWLR (Pt. 141) 2019 at 2036; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; Paul D. Fubara & Ors. v. Chief Raymond D. Ogolo & Ors. (2003) (Pt. 169) FWLR 1285 at 1312-1313.

Learned counsel for the respondents submitted that there is no need for a hearing under section 15(3) as there is no allegation of misconduct in Exhibits 89-119 to justify the invocation of the rules of fair hearing since the termination was based on ‘good cause’. He referred to the evidence of DW1 at page 365 of the record of appeal wherein he stated that the appellants’ appointments were terminated for failure to discharge their duties.

Learned counsel for the respondents submitted that reference in the concurring judgment to exhibit 20 was a mere slip which has not occasioned a miscarriage of justice. He cited Ndulue v. Ibezim (2000) 12 NWLR (Pt. 870) 139 at 168. He urged that the issue be resolved against the appellants.

It is clear that as can be traced in Exhibits 82-119, there was deliberate imputation of grave misconduct by respondents against the appellants. Such imputations include allegations that ‘you have not discharged your academic responsibilities,’ ‘you have still not complied with council’s directives.’ As confirmed by DW1 under cross-examination at page 368 of the record of appeal, the appellants were not afforded any opportunity for fair hearing. The respondents never pleaded or asserted facts at the trial court that they offered opportunity to the appellants to be heard on any allegation. There is no evidence on record that I can see wherein the appellants were offered opportunity for fair hearing. To cap it, an offer for fair hearing was not part of the case of the respondents at the court below. Even before this court learned counsel for the respondents still maintained the same poise.

All the above notwithstanding, the respondents still said the appellants were offered opportunity for fair hearing but they failed to utilize same. In the lead judgment of the court below, it was stated that the appellants ‘were invited to come to a meeting with the authority to iron out things but they turned down the invitation for reasons best known to them’. In the concurring judgment, T. Abdullahi, JCA said the appellants were, in exhibit 20, invited to defend themselves on the allegation levelled against them.

The above position, as depicted, was clearly wrong. There is no evidence pointing at the conclusion that the appellants were given opportunity for fair hearing which they declined. Exhibit 20 is a letter of employment of the 23rd Plaintiff/appellant. I cannot see any other exhibit which contains invitation referred to in the concurring judgment.

It must be stated in clear terms that it is not the responsibility of a court to set up for parties a case different from the one set up by the parties themselves in the pleadings and their evidence. See Oniah v. Onyiah (1989) 1 NWLR (Pt. 99) 514; Ojo-Osagie v. Adonri (1994) 6 . NWLR (Pt. 349) 131.

It is not the duty of the court of appeal to fish or scuttle around for evidence or to go to the extent of presuming same when a party fails to produce it. See Milton Paul Ohwovoriole (SAN) v. Federal Republic of Nigeria & 3 Ors. (supra) at page 2036.

It has been stated unequivocally by this court that the type of evidence a court can act on is the evidence which was exposed and canvassed in court. A Judge cannot, by examining documents outside the court, act on what he considers he has discovered on an issue when that was not supported or brought to the notice of the parties to be agitated in the usual adversarial procedure. See Dennis Ivienagbor v. Henry Osato Bazuaye (supra) at page 243.

With equal force, it has been pronounced by this court that an appellate court is always bound by the record and the record only. It has no jurisdiction to go outside the record and draw conclusions which are not supported by the record. And where the conclusion of the Court of Appeal is not borne out from the record; as in this case, this court is competent to interfere as such conclusion is perverse. See Paul D. Fubara & Ors. v. Raymond D. Ogolo & Ors. (supra) at pages 1312-1313.

It is glaring to me that the conclusion in the lead judgment of the court below as well as the concurring judgment that the appellants were offered opportunity for fair hearing which they declined is not borne out of the record. It is not the case of the respondents. It was not pleaded and the evidence of D.W.1, as pointed out, is to the contrary. Exhibit 20 was wrongly referred to in the concurring judgment. A document tendered as exhibit should be carefully considered in appraising same. In short, it was wrong to hold that the appellants were afforded the opportunity for fair hearing which they rejected. The reverse is the case herein. It is a glaring miscarriage of justice which justifies interference as such conclusion is perverse. I accordingly interfere with same. The issue is resolved in favour of the appellants and against the respondents.

ISSUE FOUR

“Whether the learned majority justices of the court below were right in holding that the appellants ‘waived’ their rights to employment with statutory flavour under section 15 of Unillorin Act merely by reason of signing memorandum of appointment.”

Learned counsel for the appellants observed that the issue of waiver was not raised by the respondents at the trial court. It was raised for the first time at the court below without leave. He asserted that the trial court did not render any decision on same. He maintained that the court below ignored his submission and complaint about the procedure and wrongly upheld the contention of the respondents. He urged that the decision of the court below rendered on the issue be set aside.

Learned counsel submitted that the learned majority justices of the court below were wrong in holding that the appellants waived their rights to employment with statutory flavour under section 15 of the University of Ilorin Act by reason of signing memorandum of appointment. He referred to the conclusion as being incorrect and perverse. He submitted that the provisions of a statute or constitution are sacrosanct and parties cannot by conduct or consent alter the constitution or statute. He cited Oviasu v. Oviasu (1973) 11 S.C. 315; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 204 and 252; Ogbonna v. A.G. Imo State (1992), 1 NWLR (Pt. 220) 674. He observed that issue of waiver is incompetent as it is a matter of fair hearing which ‘confers rights of a public nature as a matter of public policy’ and that ‘the provisions of such statute cannot be waived as no one is permitted to contract out or waive a rule of public or constitutional policy’. He further cited the cases of Bamigboye v University of Ilorin (1990) 6 SCNJ 295 at 305; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599, Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 163.

On behalf of the respondents, it was submitted by learned counsel that a party can waive all his personal legal rights which appellants did by signing memorandum of appointment. He referred to Ariori v. Elemo (1983) 1 SCNLR 139; Mobil Producing'(Nig) Unlimited v. LASEPA (2002) 18 NFVLR (Pt. 798) 1 at 37; Menakaya v. Menakaya (2001) 16 NWLR (Pt 738) 203 at 263. He urged that the decision of the court below be upheld on this score.

Waiver has been defined in Black’s Law Dictionary, 5th Edition at page 1417 as the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. The renunciation, repudiation, abandonment or surrender of some claim, right, privilege or of the opportunity to take advantage of some defect, irregularity or wrong. Atlas life Ins. Co. v. Schrimsher 179 OKL. 643, 66 page 2d 944, 948.

Waiver was not made an issue at the trial court. It was wrong to raise it at the court below without the leave of that court. The issue was incompetent and should have been ignored. This should have ended the point touching on waiver. But I need to expatiate a little bit.

I should point it out that the letters of appointment, the Memorandum of Appointment curled from Exhibit 81- the Senior Staff Regulations are made subject to the University of Ilorin-Act, Cap 455 and relevant provisions of the 1999 Constitution in their implementation.In effect, the provisions of the Senior Staff Regulations – Exhibit 81 are subservient and subordinate to the applicable provisions of section 15 of the University of Ilorin Act, Cap 455 and Section 36 (1) of the 1999 Constitution. The provisions of the stated statutes cannot be waived as no one is permitted to contract out or waive a rule of public or constitutional policy like fair hearing which is guaranteed under section 36 (1) of the 1999 Constitution. Parties cannot by conduct or consent alter the Constitution or a statute. The cases of Oviasu v. Oviasu (supra) and Menakaya v. Menakaya (supra) at page 305; Olaniyan v. University of Lagos (supra); Eperokun v. University of Lagos (supra) are in point.

In short, I say, with due diffidence to the learned majority justices of the court below, that the holding that the appellants waived their statutorily guaranteed rights to fair hearing vide the dictates of section 15 of the University of Ilorin Act and section 36 (1) of the 1999 constitution merely by signing ‘Memorandum of Appointment’ on assumption of duty was erroneous. It has no support in law. I hereby resolve this issue in favour of the appellants and against the respondents.

ISSUE FIVE

“Whether the majority justices of the court below were right in holding that the appellants are not entitled to order for reinstatement and order for payment of their salaries,’ allowances and entitlements. And whether the said justices were right in holding that the appellants have secured alternative employment elsewhere and that their positions in the University have been filled by the respondents.”

Learned counsel for the appellants maintained that there is no evidence on record to support the conclusion of the learned majority justices of the court below that the positions of the appellants had been filled. He felt that the court cannot be left to speculate or go on a voyage of discovery.

Learned counsel submitted that even if it is true that the appellants who are University Dons secured employments elsewhere during the impasse, that cannot be a bar to an order of reinstatement. He again referred to Eperokun v. Unilag (supra) at 177. He submitted that where an appointment with statutory flavour has been found to be wrongly determined the appropriate order is one of reinstatement. He again referred to Eperokun v. Unilag (supra) at 177; Nnoli v. UNTH Management Board (1994) 10 SCNJ 71 at 75, 91-92, Iderima v. Rivers State (2005) 7 SCNJ 493 at 504.

Learned counsel for the respondents submitted that the court below was right when it held that the appellants were not entitled to claim of salaries and allowances for the period for which they were not at work as to hold otherwise would amount to encouraging illegality.

It was held in the case of Archibong v. Ita (2004) All FWLR (Pt. 197) 930 at page 955 that a court of law cannot speculate or conjecture. It is dangerous to do so in the absence of evidence. In this case, I am unable to trace from the evidence on record the number of appellants who have secured employment elsewhere; the number of vacant positions and those already allegedly filled.

I note that P.W.2 admitted that some of the appellants secured employments elsewhere ‘to keep body and soul together’. This, on its own, does not constitute a bar to their reinstatement. In Eperokun v. University of Lagos (supra) at page 117, it was held by this court that the appellants therein were entitled to reinstatement even if they had secured other employments during the pendency of the case and subject only to harmonization of any overlapping remuneration.

In this case, the respondents are obliged to reinstate the living appellants to their offices which have been disrupted by this litigation. Any appellant who secured ’employment’ during the impasse should account to the respondents for any overlapping remuneration in his/her own interest. This position is further reinforced by the fact that it was the respondents who refused to put an end to the impasse as at 29th June, 2001 when they refused to comply with the directive of the National Universities Commission the parent body of the respondents to reinstate the appellants as contained in Exhibit 122 which reads as follows:-

“The Pro-chancellor, University of Ilorin

The Pro-chancellor, University of Nigeria, Nsukka.

Federal Government/ASUU Negotiation

I am directed to draw the attention of your council to the cases of academic staff whose rights of continuous employment have been wrongly and prejudicially affected as a direct consequence of the national strike of ASUU and to request you to kindly reverse such action taken by your Council/Administration in order to ensure peace and harmony in the campuses in the country and in the spirit of negotiations.

Signed by Professor Munzali Jibril, OFR

Executive Secretary”.

One cannot understand the reasons for the intransigence put to bear by the respondents. If they had complied, the matter would have ended by 29th June, 2001. It is in evidence that the authorities of University of Nigeria, Nsukka complied and averted unnecessary impasse. That is how it should be. I do not for one moment see why the appellants who are on this side of the divide should not be reinstated with their full salaries and allowances. The living appellants must be, and they are hereby, reinstated. That is the law. ‘Good faith’ should always be the watch words in human administration. The issue is hereby resolved in favour of the appellants and against the respondents.

ISSUE SIX

“Whether the majority justices of the court below were right in holding that the appellants were not entitled to their salaries, allowances and other entitlements by reason of strike action.”

Learned counsel for the appellants submitted that the respondents’ case at the trial court was that the appointments of the appellants were not terminated for any participation in strike action vide Exhibit 1. He felt that payment or non-payment over .’participation in strike’ was not an issue.

Learned counsel observed that the allegation contained in the letter to the appellants is not that the appellants were on strike for which Trade Disputes Act may be applicable. Allegations bordered on misconduct for which, the appellants were not afforded fair hearing.

Learned counsel for the respondents felt that the provisions of Trade Dispute Act are applicable. It is extant in Exhibit 1 that the respondents maintained that the appellants’ appointments were not terminated for any participation in strike action. Since the matter has nothing to do with strike according to the respondents, application of the provisions of the Trade Disputes Act is of no moment. Parties should not employ a game of hide and seek.

This matter has to do with allegation of misconduct levelled against the appellants for which they were not taken through the procedure laid down in the applicable section 15 of the University of Ilorin Act, Cap 455, 1990. The right of the appellants should not be remotely tied to the inapplicable provision of the Trade Disputes Act as erroneously done by the court below. Without much ado, this issue is also resolved against the respondents.

ISSUE SEVEN

“Whether the majority justices of the court below were right in holding that the appellants’ case’ was caught by ‘issue estoppel”.

Learned counsel for the appellants submitted that the learned majority justices of the court below erred in holding that the appellants’ case was caught by issue estoppel as they did not consider the relevant materials placed before them. He observed that the appellants were not parties to the case at the Industrial Arbitration Panel (IAP). He stressed that the parties in Exhibit 40 are different from the parties in this case and the case of the appellants at the Federal High Court was first in time. He felt that the claim of the appellants herein at the trial court which was for declaratory reliefs and mandatory orders are not within the jurisdiction of IAP or even the National Industrial Court. He cited the case of Western Steel Workers Union v. Iron Steel Workers NO.2 (1987) NWLR (Pt. 49) 284,’ Kalango v. Dokubo (2003) WRN Vol. 16 paragraph 32 at 49. He observed that the court below acted

on Exhibit 38 – ‘a notice of award’, not an ‘award’.

I tried to trace the stand point of the respondents on this issue to no avail.

A plea of issue estoppel by a defendant is geared at preventing a plaintiff from re-litigating an issue previously decided in a former suit. The parties and subject matter must be the same. See MILAD Benue State v. O. Ulegede (2001) 10 SCNJ 43; Western Steel Workers Uniom v. Iron Steel Workers NO.2 supra.

In this matter, it is beyond argument that the parties before the IAP are not the same with the parties in this case at the trial court. The case at the IAP was a trade dispute. The case at the trial court involved master and servant relationship in which the appellants claimed declaratory and mandatory orders which do not fall within the jurisdiction of IAP. See Kalang v. Dokubo (supra). The alleged award was withdrawn by the Minister of Labour.

With all the above, it is clear that issue estoppel cannot avail the respondents. The learned trial Judge got it right when he found that:

“It is therefore crystal clear that the issue and parties are different from the parties before this honourable court in respect of this matter further more the award has been withdrawn.”

I am of the considered opinion that the learned justices of the court below were wrong in finding that issue estoppel availed the respondents. Such a conclusion was erroneous. I resolve this issue in favour of the appellants.

Before I draw the curtain, I wish to stress the purport of the doctrine of stare decisis. It is that a point of law that has been decided and settled by a superior court should be followed by lower court. There is sense in it to avoid confusion. See Royal Exchange Assurance Nig. Ltd. v. Aswani iles Ind. Ltd. (1991) 2 NWLR (Pt. 176) 639 at 672. It is not proper to refuse to follow the decision of a superior court. A lower court should tow the line. See Atolagbe v. Awuni & Ors. (1997) 7 SCNJ 1 at pages 20, 24 and 35. If the doctrine of stare decisis was followed by the learned majority justices, all forms of furore would have been averted.

In conclusion, I find that this appeal is, no doubt, meritorious. It is hereby allowed. The decision of the majority justices of the court below is hereby set aside. In its place, the judgment of the trial Judge is restored to the effect that the living forty-one (41) appellants are hereby reinstated and should be paid their salaries and allowances from February 2001. For the three plaintiffs who died during the protracted litigation, may their souls rest in peace.

It has been written of old that ‘it is appointed unto men once to die, but after this the judgment.’ In their graves, they must be crying for justice. An incidental order is clearly warranted. See Nneji v. Chukwu (1988) 3 NWLR (Pt. 78) 184 at 208. They are deemed to have passed on while in service. Their salaries and allowances shall cease on their respective dates of death.

The appellants are entitled to costs assessed in this court at N50,000.00 in the court below N10,000.00 and at the trial court N5,000:00.

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SC.76/2007