Professor F. N. Ndili V. Mr. J. M. Akinsumade & Ors.(2000)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A.

The chequered history of this appeal is bespoken by 1st labyrinthian journey to this Court for the second time on the same issue with an ill-fated excursion in between to the Supreme Court to test out the question of whether this Court was right in holding that the jurisdiction of the trial Court to entertain the action on appeal was not ousted by the public officers (special provisions) Act, Cap. 381 of 1990 Edition of the Laws of Federation of Nigeria. For an appreciation of the ramifications of the facts of the matter, it is essential to give a bird’s eye view of the events leading to the action that was filed at Enugu Registry of the old Anambra State High Court over 13 years ago, for an insight into the hustle and bustle at the trial Court that translated into a spiral of appeals on the same issue which is fostered by the technical leeway that became the delight of the Respondents and their Counsel who in relays are exploiting it with gusto.

The Appellant was up to 3/10/85 when he was suspended from office the Vice Chancellor of the University of Nigeria Nsukka, hereinafter called the University and a professor of physics. During the tenure of his office the Head of State as Visitor of the University set up on 22/6/84 a Visitation panel, to be called hereinafter as the panel to investigate the affairs of the University from 1st January, 1978 to the present time with the late Hon. Justice P.R.G. Okara as the chairman and the 1st and 2nd Respondents in this appeal as members. The suspension of the Appellant from office as the Vice Chancellor on 3/10/85 was followed on 18/11/85 by his removal from office as the Vice Chancellor of the University and his retirement from the services of the University as a result of the findings of the visitation panel to the university’.

The suspension, removal from office and retirement of the Appellant were made by the Head of State acting in his capacity as the Visitor of the University operating under the powers of the visitor in sub-section 13(2) of the University of Nigeria Act. No.1 of 1978. The Report of the panel was submitted on 15/4/85, as per the covering letter of the chairman of the panel at page 47 of the record, and the decision of the Head of State on the report was published sometime in February, 1986 under the title “views of the President, Commander-in-Chief of the Armed Forces, Major General I. B. Babangida, CFR., on the Report of the visitation panel into the Afrairs of the University of Nigerian, Nsukka, from January 1978 to the present time”, to be contracted in succeeding references to ‘The Visitor’s implementation of the Panel’s Report’.

Against this background the appellant seeking a redress for his removal from office as the Vice Chancellor and his retirement from the service of the University as a professor instituted on 31/10/86 at the High Court of the Anambra State, Enugu, an action against the Chairman of the Visitation Panel, the late Hon. Justice P.R.G. Okara, in which he joined as co-defendants, the Visitor of the University, the university and the other two members of the Visitation Panel. In the suit, the Appellant in his statement of claims asked for sundry reliefs which can be summarized as follows:

(1) declaration that:

(a) the findings, conclusions and recommendations of the visitation panel into the affairs of the University of Nigeria Nsukka that led to his removal as the Vice Chancellor is null and void and of no effect whatsoever because:

(i) there are patent errors of law therein;

(ii) in the conduct of the proceedings the panel breached the rules of natural justice; and

(iii) the panel acted without authority and in contravention of sections6and 33 and paragraph 3 of part one of the 5th schedule (code of conduct for public officers) of the Constitution of the Federal Republic of Nigeria, 1979;

(b) the acceptance of the Report of the visitation panel by the Visitor of the University and the decision to remove the plaintiff from office based on that Report is null and void because:

(i) the president and Commander-in-Chief of the Armed Forces had no authority to act or take decisions on the Report of the panel which, itself, is a nullity; and

(ii) the removal of the Plaintiff from office was not based on the view of the visitor who did not decide the issue within his statutory competence;

(c) The order made by the visitor in paragraph 110 of the visitor’s implementation of the panel’s Report for immediate removal of the plaintiff from office and his retirement from the service of the University is ultra vires the Visitor’s powers and is null and void and of no effect whatsoever because:

(i) the investigation, findings and recommendations of the panel ‘did not relate to the plaintiff appointment as a member of the academic staff or in his post of professor’;

(ii) the order contravenes section 15 of the University of Nigeria Act of 1978, paragraph 4 of schedule one thereto and the plaintiff’s contract of employment; and

(iii) the Visitor had no jurisdiction under the University Act or any law to retire him from service or cause him to be removed from the service of the University either as the Vice Chancellor or professor;

(2) orders:

(a) that the Plaintiff’s appointment as Vice Chancellor still subsisted until its expiry date or until it was lawfully terminated; and

(b) that the plaintiff’s appointment as a professor is unaffected by the Report of the Visitation Panel and, therefore, still subsisting.

The University filed separate statement of defence in which it raised a preliminary objection that the Appellant’s action was incompetent on the ground that his removal from office and retirement from service were made by the Head of State under Public Officers (special provisions) Decree, No. 17 of 1984, now Chapter 381 of the 1990 Edition of the Laws of Federation of Nigeria, which ousts the jurisdiction of the court from inquiring into the matter. The remaining four Defendants filed a joint statement of defence, as first simply denying the Appellant’s claims but in subsequent amendment raised like the University a preliminary objection that the jurisdiction of the trial court was ousted by Public Officers (special provisions) Act and, in addition, that the Visitor was not a juristic person and could, therefore, not be sued.

At the threshold of the trial, the preliminary objection by the five defendants was taken at the end of which the learned trial Chief Judge ruled, on the first limb of the 1st question, that the position of the Visitor being an office in the university in which the Head of State functions in his relationship with the University he is not by functioning as a Visitor a juristic person; the name of the Visitor was thus struck out. On the second arm of the argument of the defence that striking out the name of the Visitor left the plaintiff/Appellant with no party to proceed against since the wrong done to the plaintiff was by the Visitor, the learned trial Judge held that the University was by sub-section 1(2) of the University of Nigeria Act, No. 1 of 1978. expressly created as a juristic person under the corporate name, The University of Nigeria that can eo nomine, sue and be sued. Therefore, the inclusion of the University as a party meant that the action was duly constituted and could proceed without the addition of the visitor.

As regards the question of whether the jurisdiction of the court was ousted by public Officers (special provisions) Act, the learned trial Judge was of the view that the evidence before him was inconclusive because of the interchange of the name ‘Visitor’ and ‘Head of State’ in the material documents, viz. The Visitor’s Implementation of the panel’s Report. Exhibit 4, and Letters of Suspension and Retirement from office, Exhibit 5 and 6, and held that until it was proved that the Head of State acted under the Public Of ricers (special provisions) Act the jurisdiction of the Court could not be ousted and, therefore, the plaintiff was entitled to continue the case.

The remaining Defendants except the University of Nigeria appealed to this court against that Ruling on the grounds that it was wrong for the trial Chief Judge to have (a) failed to hold that the Public Officers (Special Provisions) Act ousted the jurisdiction of the Court and (b) refused to strike out the name of the remaining 4 defendants from the suit after he had struck out the name of the Visitor.

On the decision to remove the Appellant from office and to retire him from the service of the University this Court examined the following four documents, viz, Exhibit 1, Secretary to the Federal Military Government’s letter of 22/6/84 appointing the Chairman and members of the Visitation Panel; Exhibit 2, the Maiden Address of the Chairman of the visitation panel and Exhibit 5 and 6, the Letters of Suspension and Retirement from office written to the Appellant, dated 3/10/85 and 18/11/85, respectively, by the Permanent Secretary, Federal Ministry of Education. The correspondence were all on the subject matter of the Acts of the Visitor of the University of Nigeria and the court asked “where could any person looking at Exhibit 1,2,5 and 6 have come by the belief that the Head of State was acting under Decree No.17 of 1984 in all that he did in relation to visitation panel which culminated in the removal of the plaintiff?”

The Court applied the principle in its earlier decision in Hon. Justice Anya v. Dr. Festus Iyayi (1988) 3 NWLR, (Pt.82) 359, 379, that when the Head of State acted as President and Commander-in-chief, he acted in accordance with the provisions of Decree No.1 of 1984 and No. 17 of the 1984 but when he acted as Visitor to a University, he acted in accordance with the powers vested in him by the statute creating the University which he cannot exceed. The Court unanimously held that ‘since it has been made clear in the different letters reproduced above that the Head of State acted as Visitor, it will be impermissible and unarguable to say that the visitor in that situation has suddenly assumed the garb of President, Commander-in-Chief of the Armed Forces who is the appropriate authority under Decree No. 17 of 1984″. The Court further held that since the Appellants’ counsel did not in his brief canvass any argument in support of the second issue, i.e. the refusal of the trial judge to strike out the names of the 4 other defendants after he struck out the Visitor, that issue was deemed abandoned on the precedent of Nwagwu v. Okonkwo, (1987) 3 NWLR (Pt.60) 314, 319.

It is to be noted that the decision of this court in that appeal under the title ‘Okara v. Ndili’, the correctness of which is also made an issue in the present appeal, has been reported as (1989) 4 NWLR. (Pt.118) 700. Equally, noteworthy is the fact that the decision of this court in Anya v. Iyayi, supra, that was followed in Okara v. Ndili, supra, was later affirmed by the Supreme Court in Anya v. Iyayi, (1993) 2 NWLR (Pt.305) 290 (1993) 9 SCNJ. (Pt.1) 53, at page 73.

In any case, following the decision of this Court that the jurisdiction of the Court was not ousted by Public Officers (special provisions) Act the suit got back to the Court below where hearing began but was interrupted with elevation to the Supreme Court of the learned trial Chief Judge and the trial began de novo by his successor-in-office. The trial proceeded to conclusion. The plaintiff testified; testifying also on his behalf are 2 officials from the presidency and the University of Nigeria, Nsukka, who were subpoenaed to produce record and official document. At the end of the hearing all learned Counsel for the parties submitted written addressees. Because of the change in counsel the learned Senior Advocate first retained by the university submitted a written address while the learned Senior Advocate who succeeded him supplemented the written address of his predecessor by oral submission to which learned Senior Advocate for the Appellant gave a brief reply.

The keystone of the oral address by learned Senior Advocate for the university which became the turning-point upon which the decision of the learned trial Judge was anchored was the introduction of the Federal Government (Supremacy and Enforcement of Powers) Decree, No. 13 of 1984, now chapter 137 of 1990 Edition of the laws of the Federal of Nigeria, hereinafter called Decree 13 of 1984. Learned Senior Advocate for the University submitted that ‘under that Decree no action lies for any act done by any person to any Decree. He contended that Decree 13 of 1984 has a protective cover over other Decree and Edicts and saves any act done under any Decree or Edict which cannot be challenged in a court of law. He argued that whether the plaintiff was removed from office under Public Officers (Special Provisions) Act of 1984 or under University of Nigeria Act, 1978, does not make any difference to the validity of the Appellant’s removal from office and his retirement from the service of the University. Any action taken under either of the legislations, he agitated, is protected by Decree No. 13 of 1984 that bars the person affected by the action from challenging the action and the Court from entertaining the action if challenged.

He further contended that, the offices of the Head of State and that of the Visitor of the University are fused into one which are vested in one person who happens, primarily, to occupy the former office and submitted that it is an unnecessary hair-splitting to agitate that when the Head of State removed the appellant from office and retired him he was acting either as the Head of State or the visitor. He further argued that basically the purpose of Decree No.13 of 1984 being solely to protect a Decree or anything done under any Decree to question the act of the Visitor will be questioning an act done under the University of Nigeria Decree, 1978, which the court is precluded from inquiring into.

The learned Senior Advocate submitted that, the ruling of the first trial Chief Judge that the jurisdiction of the High Court was not excluded by the Public Officers (special provisions) Act, 1984, was mistaken and by implication the affirmation of that decision by this court. He concluded that on the precedent of the decision in Onyema v. Oputa, (1987) 3 NWLR (Pt.60) 259, 293, once the court has no jurisdiction to entertain an action no interlocutory rule (sic) can vest the court with jurisdiction, a broadside that the judgment of this court in Okara v. Nidili, supra, was not correctly decided.

In his brief reply, learned Senior Advocate for the Appellant submitted that the question of whether Decree No. 13 of 1984 ousted the jurisdiction of the court because the decision of the Head of State acting as Visitor of the University cannot be questioned in any court of law has been settled by the decisions of this court in Anya v. Iyayi, supra, and Okara v. Ndili, supra, by which he stood. On those two decisions, he rested his case.

In his judgment, the learned trial Judge upheld the submission of learned Senior Advocate for the university and concluded as follows:

“In Nigeria, the Courts are impotent in the face of ouster jurisdiction (sic). I will make bold to say the courts are slaves to ouster clause such as section 1(2) (b) (i) of Decree NO.13 of I984 … I have no doubt whatsoever that this court has. no jurisdiction over this suit which Decree Non of 1984 robbed it (sic) … I hold that the Okara v. Ndili case decided in the court of Appeal, Enugu Division, was decided per incuriam. I have no doubt that the decision would have been otherwise if their Lordships’ attention was drawn to Decree No.13 of 1984″.

The striking out of the visitor, a creature of statute did not make any sense to me. The suit is therefore dismissed”.

The present appeal is against that decision the trial which only the present 3 Respondents survived the name of the visitor as the 4th Defendant having been struck out on a preliminary objection while during the proceedings at the Court below the 1st Defendant, Hon. Justice P.R.G., Okara, chairman of the visitation panel, died and his name was also struck out.

Learned Senior Advocate for the Appellant filed 5 grounds of appeal from which he formulated 4 issues in his Brief of Argument. Learned Senior Advocate for the University, the 3rd Defendant, formulated 3 issue while the Principal Legal Officer, Federal Ministry of Justice, for the 1st and 2nd Respondents framed 2 issues. I will reproduce the more comprehensive issues formulated by learned Senior Advocate for the Appellant which encompass the issues formulated by the three respondent. Without the particulars of issue 3 which will be referred to when the Issue comes up for argument the four Issues formulated by the appellant read:

“(1) Was the learned trial Judge right in law to have dismissed the suit after deciding that this court had no jurisdiction to determine it? (Ground 1).

(2) Was the learned trial Judge right in law in holding that the decision of the Court of Appeal in the interlocutory appeal in this suit i.e. CA/E/87/88: Okara & Others v. Ndili (now reported in (1989) 4 NWLR (Pt.118) 700) is erroneous i.e. was made per incuriam as a result of which he refused to follow it? (Ground 2).

(3) Is the decision of the learned trial Judge not perverse? when …

(4) Is the learned trial Judge after receiving all the evidence not bound to make findings of fact on the facts pleaded and issues joined, particularly as in this case where the evidence is mainly documentary and no question of demeanour or credibility arises; even if he had eventually to rely on the absence of jurisdiction? And is the Court of Appeal not entitled in such a situation to make its own findings based on the pleadings and evidencc on record?”

I will take together issue one and two in the Appellant’s Brief of Argument which are co-extensive with Issue one and Two in the 3rd Respondent’s Brief of Argument. This will be followed by the third Issue in both the appellant’s and the 3rd respondent’s Briefs of Argument while I will examine last Issue four in the appellant’s Brief of Argument.

Arguing Issue Two, learned Senior Advocate for the Appellant submitted that it was wrong for the learned trial Chief Judge to have refused to follow the decision of this court in Okara v. Ndili. supra, decided in the course of an interlocutory appeal during the same proceedings. This, he contended, runs counter to the current of judicial authorities on the matter in support of which he cited African Newspapers Nigeria Ltd. v. The Federal Republic of Nigeria, (1985) 2 NWLR (Pt.6) 137; Attorney General of Ogun State v. Egenti, (1986) 3 NWLR (Pt.28) 265, 272-273; Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt.137) 182,213; and P.N. Emerah and Sons (Nig) Ltd. v Attorney General of Plateau State (1990) 4 NWLR (Pt.147) 788, 801. He submitted that on the doctrine of stare decisis the learned trial Chief Judge was bound by the decision of this court as a higher court in the hierarchy of courts and that failure to do so is a serious misdirection.

On the introduction of Decree No.13 of 1984, out of the blue after the decision in Okara v. Ndili. supra. learned Senior Advocate pointed to the inconsistency in the stand taken by the learned trial Chief Judge on the application of that decision. In his ruling on 13/4/95 on amendment or pleading by the 3rd Respondent at page 237 of the record; the learned Chief Judge said that a higher court having decided a point that point cannot be reopened by a lower court until the decision of the higher Court is set aside but only to turn round shortly afterwards to refuse to follow the same decision which had held that he was competent to exercise jurisdiction over the matter on the pre that upon his own hunch Decree No.13 of 1984 which was brought to his attention at the last minute of the trial had ousted his jurisdiction.

The learned Senior Advocate wondered at such a judicial attitude which he submitted is incomprehensible and urged this court not to countenance the volt face which is a backsliding.

In reply, learned Counsel for the 3rd Respondent argued that the court below was under legal obligation to give effect to Decree No.13 of 1984 and the University of Nigerian Act. NO.1 of 1978, sub-section 13(1) of which made the Head of State the Visitor of the University and that it does not make any difference as regards the Appellant’s removal from office and his retirement from service whether the Head of State acted as the Head of State or the Visitor. He contended that under our jurisprudence, it is the duty of the Court to give effect to legislation in buttress of which he cited Alashe v. Olori-Ilu, (1965) NWLR 66, 71, and the view of Dias and Hughes at pages 97-98 of 1957 Edition of their book titled ‘Jurisprudence’ followed by the decisions in Lee v. Bude Torrington Junction Railway Co, (1871) LR 6 CP 576, 582; and Osadebay v. Attorney-General of Bendel State, (1991) 1 NWLR. (Pt.169) 525, 557, 570 and 571. He submitted that because of the clarity of the legislations ousting the jurisdiction of the Court from entertaining the action the learned trial Judge was right in giving effect to them and in his refusal to follow the decision in Okara v. Ndili, supra, citing in support Ifezue v. Mbadugha (1984) 1 SCNLR 427, (1984) 5 SC 79, 160.

On the introduction of Decree No.13, of 1984 which-the learned trial Chief Judge ultimately held to have ousted his jurisdiction to entenain the action, learned Senior Advocate submitted that the learned trial Judge was duty bound to take note of that Decree as it touched upon the jurisdiction of the Court, an issue which, in principle, can be raised at any stage on the proceedings and can be raised for the first time on appeal to the apex court. In this regard, he contended that the learned trial Chief Judge acted within the principles in Oyeniran v. Egbetola, (1997) 5 NWLR (Pt.504) 122, 138; and Ogigie v. Obiyan, (1997) 10 NWLR.(Pt.524) 179, 196, and that it is immaterial that the question of jurisdiction had to be reopened the second time during the proceedings; moreso, as Decree No. 13 of 1984 that has a leverage upon Decree No.17 was not considered in the judgment of this Court in Okara v. Ndili, supra. The question of sponging a surprise on the Appellant by coming up with Decree No.13 of 1984 at the address stage does not arise, he argued, as the issue of jurisdiction was involved. He concluded that as learned Senior Advocate for the Appellant did not argue that Decree No.13 of I 984 is inapplicable but rather that there was already a decision on Decree No. 17 of 1984 the argument cannot be sustained. He urged this court to reject the contention that Okara v. Ndili, supra, is conclusive on the point at issue.

On behalf of the 1st and 2nd Respondents, the learned Principal Legal Officer got off to a shaky start by describing the appeal as against the judgment of the Federal High Court, Enugu. However, her arguments are, in the main, in support of the 3rd Respondent’s case the highlights of which are on jurisdiction which she argued, and quite rightly, is fundamental as ‘the very basis on which a court or tribunal trying a case stands’. Refusal of the learned trial Chief Judge to follow the decision of this court in Okara v. Ndili, supra, ‘was basically on the question of Decree 17 of 1984’ whereas ‘Decree 13 is a new issue raised on jurisdiction as it does not form part of the issue decided upon by the Court of Appeal in reaching a decision’ in Okara v. Ndili, supra. The learned Counsel referred to the decision of the English Court of Appeal in Young v. Bristol Aeroplane Company, (1944) K.B. 718, on the principle of stare decisis in which she relied on the opinion of Brown, C.J, and submitted on the authority of the decision that this Court having failed to take judicial notice of Decree No.13 of 1984 in its decision in Okara v. Ndili, supra, when it held that the court below had jurisdiction the learned trial Chief Judge was justified in his view that decision was reached per incuriam.

I will deal later with the position of the law when a decision is said to be rendered per incuriam. In the meantime let me correct misconception by the learned principal Legal Officer. The extract from the judgment of Obaseki, J.S.C., in Oyewunmi v. Ogunsesan, supra which she cited as a precedent on the doctrine of stare decisis deals with distinguishing a previous decision from the subsequent case for which it is offered as an authority and not with the question of reaching a decision per incuriam for which Nwako v. Military Governor of River; State. (1989) 2 NWLR. (Pt.104) 470, 482, provides an example. Similarly, the decision of the English Court of Appeal in Young v. Bristol Aeroplane Company, also reported as (1944) 2 All E.R 293, is the authoritative version of the decision of that court on stare decisis but one in which, contrary to the submission of the learned Counsel, Brown C.J., was not and could not have been part of the 6 member full court panel whose only judgment was delivered by Lord Greene, M.R.

In any case, the Learned Principal Legal Officer examined the provisions of section 13 of the University of Nigeria Act, 1978, Decrees Nos. 13 and 17 of 1984 and identified the Head of State as the appropriate authority under sub-section 4(2) of Decree No. 17 of 1984. She submitted that as the Head of State who is also the Visitor of the University is the appropriate authority the removal of the Appellant from the office of the Vice Chancellor and his retirement from the service of the University was protected by sub-section 1(b)(i)(sic) of Decree 13 of 1984 because the Appellant was a ‘public officer’ within the meaning of that expression in section 277 of the Constitution of the Federal Republic of Nigeria, 1979, a wrong reference in view of the fact that Decree No.17 contains in sub-section 4(1) its own definition of a ‘public officer’.

Finally, the learned Counsel submitted that on the authority of the decision of this Court in Akegbejo v. Ataga, (1998) 1 NWLR (Pt.534) 459, there is no C specified format for raising the issue of jurisdiction and, therefore, it was open to the Court below to entertain objection to the jurisdiction of the Court at the last minute since on the face of Decree 13 of 1984 the Court had no authority to entertain the action upon which that decree has placed a bar. She urged the Court to uphold the decision of the Court below.

The widespread misunderstanding of the comparative scope of the two legislations, Decree Nos. 13 and 17 of 1984, that are at the centre of the dispute is startling. But more astonishing is the fact that learned Counsel for the Respondents who made the legislations their ace in the hole, especially Decree 13 of 1984, did not bother to analyse the two legislations with a view to concretizing the arguments that, in the main, have been submerged in a mass of tedious verbiage. Thus, the primary concern is to juxtapose the two legislations with a view to seeing what each is set out to project.

Sub-section 1(2)(b)(i) of Federal Military Government (Supremacy and Enforcement of Power) Decree, 13 of 1984, reads:

“No civil proceedings shall lie or be instituted in any Court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on, or after the commencement of this Decree the proceedings shall abate, be discharged and made void”.

(italics mine)

Sub-section 3(3) of the Public Officers (Special Provisions) Decree, No.17 of 1984, read:

“No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceedings have been or are instituted before, on, or after the making of this Decree, the proceedings shall abate, be discharged and made void”.

(italics mine)

From the provisions of the two legislations Decree No. 13 which expressly deals with the supremacy of the Military Government bars from being challenged in court ‘any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict’ while Decree No. 17 bars from being contested in court any act, matter or thing done or purported to be done by any person under this Decree. In effect, Decree No.13 relates to any act. etc., done under or pursuant to any Decree or Edict while Decree No.17 deals with any act, etc., done by any person under the Decree as the classes of action from which the jurisdiction of the court is excluded. Thus, the sphere of the operation of each enactment is expressly stated in relation to the object of the enactment. Decree No. 13 which deals with the supremacy of the Military Government is concerned with act done pursuant to any Decree or Edict while Decree No.17 that deals with dismissal, removal or compulsory retirement of public offices is concerned with anything done by any person under that particular Decree.

The preamble to Decree No.13 which by virtue of sub-section 1(1) thereof forms part of the Decree gives an insight into the goal of the legislation which is to give the Federal Military government’ absolute powers to make laws for the peace, order and good government of Nigeria or any part thereof as declared on the advent of the second Military Administration of the polity in 1983. The aim which determine the scope of the Decree is confirmed by sub-section 1(2) introducing immediately the ouster clause which reads:

“It is hereby declared also that:

(a) for the efficacy and stability of the government of the Federation; and

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federation …”

That object is in contrast with the primary purpose of enacting Decree No.17 of 1984 which is specifically stated in sub-section 1(1) of that Decree as touching on matters affecting the administration of public service such as improvement in organisation, poor performance occasioned by declining health of a public officer or corrupt practices by any public officer and general conduct in performance of duties which is prejudicial to public interest. The Decree spelt out the disabilities which accompany the dismissal or removal from office under the enactment and defines ‘a public officer’ and the persons in whom the powers of dismissal and removal from office are vested designated as ‘appropriate authority’.

The difference between the two legislations is that whereas Decree No.13 is concerned with the preservation of the legislative powers of the military authorities and the acts done under the legislations handed down Decree No.17 deals with rationalization of the Public Service that has nothing to do with the challenge of the capacity of the military political authorities to make law and the application and effects of the law so made except in so far as the non observance of that particular legislation in its implementation may be questioned by one who is adversely affected. In other words, Decree No.13 bars from inquiry by the Court a challenge of the military authorities capacity to make law and the acts done under the law so made Decree 17, on the other hand, bars the challenge in court of any act done by the military authorities pursuant to the streamlining of the public service that directly affects an officer. Thus the object and scope of the two legislations are poles apart.

Against this background, the perspective is set for an examination of the contention of the learned Counsel on both sides of the divide about the applicability of Decree 13 to the dispute between the parties. The examination will focus on two issues, viz, (a) whether given the provision of the Decree as it stands it covers that transaction that gave rise to the dispute and (b) whether examples of the previous decisions on that Decree and the legislation that is in pari materia with Decree cover the type of dispute in this appeal.

On the first point, it is common ground that Decree 13 of 1984 operates to protect from litigation any Decree or Edict of the military government or any act, etc., done or purported to be done under such a Decree or Edict. It is also common ground that the appointment of the Head of State as the Visitor of the University is by virtue of sub-section 13(2) of the university of Nigeria Act, NO.1 of 1978. It is also clear from the document on the visitation panel that the appointment of the chairman and members of that panel, the Maiden Address of the Chairman of the panel and the Letters of Suspension and Retirement of the appellant from office, Exhibits 1,2.5 and 6, were made under section 13 of that Act. Can the Appellant suspension from the office of the Vice Chancellor and his retirement from the service of the University be said to have been made under a Decree to bring in the provision of Decree 13 of 1984?. I do not think so.

In the course of proceedings at the trial Court including the addresses by the learned Counsel, the law creating the university of Nigeria has been wrongly described as ‘University of Nigeria Decree, No.1 of 1978’. This no doubt is a carry-over of the mistake from the letter constituting the visitation panel, Exhibit 1, written by Secretary to the Federal Military Government. It is a misdescription and a crass misconception of the law as it overlooks statutory Instrument No.13 of 1980 made by the president of the Federal Republic of Nigeria captioned Adaptation of Laws (Re-Designation of Decrees. etc.) Order, 1980. Section 1 of the Order reads:

“Without prejudice to the generality of section 274(2) of the constitution of the Federal Republic of Nigeria 1979:

(a) any Decree made between 15th January, 1966 and 30th September, 1979 by any competent authority or person and which was in force on the date of coming into force of the aforesaid constitution shall, to the extent that such a Decree relates to a matter with respect to which the National Assembly is empowered by the constitution to make laws, hereafter be re-designated and referred to as an Act and, accordingly, for the word ‘Decree’ in any such Decree there shall be substituted the words Acts and;

(b) any Edict made between 15th January, and 30th September, 1979 by any competent authority or person and which was in force on the date of coming into force of the aforesaid constitution shall, to the extent that such a Decree relates to a matter with respect to which the National Assembly is empowered by the constitution to make laws, hereafter be re-designated and referred to as an Act and. accordingly, for the word ‘Edict’ in any such Edict there shall be substituted the words ‘Law’; and references to Decree or Edict in this section include references to any subsidiary instrument make thereunder and any enactment amended or otherwise modified be any such Decree or Edict”.

By virtue of sub-section 4(4)(a) of the Constitution of the Federal Republic of Nigeria, 1979, read with item 27 of part II of the second schedule thereto the National Assembly is empowered to make laws with regard to University, technological and post-primary education. Thus, with effect from 25/7/80 when the Statutory Instrument No. 13 of 1980 came into force what was formerly known as the University of Nigeria Decree, No.1 of 1978 ceased to be known by that title and thenceforward the correct title became ‘the ‘University of Nigeria Act, 1978’ and it is a misnomer to keep referring to it by the old terminology that has been statutorily changed. If, therefore, on 17/5/84 when Decree No.13 of 1984 came into force the enactment governing the University of Nigeria was an Act of parliament and no longer a Decree that legislation falls outside the purview of Decree No.13 of 1984 that protects only Decree and Edicts of the military governments of Nigeria. Consequently, all the argument about the statutory leverage of Decree No.13 of 1984 over the University of Nigeria Act is naive. That is sufficient to dispose of the arguments of learned Counsel for the Respondents about the omnipotence of Decree 13 of 1984 to bar any judicial inquiry into acts done under the University of Nigeria Act, 1978. But because of the importance of the issues involved, particularly the binding force on the court below of the decision of this court in Okara v. Ndili, supra, I do not want to rest my decision on the matter on such a narrow consideration.

That brings me to the second question on the matter, i.e. whether the application in the past of the Federal Military Government (Supremacy and Enforcement of Powers) Decree, No.13 of 1984, and kindred enactment that is in pari materia cover the type of dispute in this appeal. For the purpose of illustration with a view to giving a picture of the typical type of cases that are amenable to the application of the ouster provisions under that Decree, I examine below a few random cases in which the Decree was raised as a defence and the corresponding decisions under Act No. 28 of 1970 before it which alike ousted the jurisdiction of the Court and barred a reason to the provisions of fundamental human rights under I the constitution in protection of any act done under a Decree or an Edict.

Military Government of Ondo State v. Adewunmi, (1985) 3 NWLR, (Pt.13) 493, was concerned with Chieftaincy matter that sparked off the dispute over the Edict made by the Military Governor on the subject that ousted the jurisdiction of the court in defence of the validity of which Decree No.13 of 1984 was called in aid. This Court held that the Decree reinforced the supremacy of the legislative powers of the military authorities but it does not prevent an inquiry by the court into whether the Edict was made in conformity with the source from which the maker derive his power to make the Edict nor could the Decree be used as a cover to derogate from the power vested in the High Court by the constitution which was higher than an Edict in the hierarchy of legislative scheme. The decision was affirmed on appeal to the supreme court, reported as (1988) 3 NWLR (Pt. 82) 280, in which the court, at page 291-292 and 297, analysed the margin of freedom allowed to the court by a combined operation of self-same Decree 13 and subsection 2(1) of Decree 1 of 1984.

Obada v. Military Governor of Kwara State, (1990) 6 NWLR (Pt.157) 482, was also a Chieftaincy matter challenging the appointment of an Oba made by Edict. The trial Court declined jurisdiction on the ground that it had been ousted by Decree 13 of 1984 but the plaintiff contended on appeal that he had paid N10,000.00 state filing levy under the Edict for challenging the appointment he was, ipso facto entitled to challenging the Edict. This Court held that Decree No. 13 of 1984 constitutes a bar to any challenge of the validity of an Edict or of an appointment made by the Edict.

Similarly, Military Governor of Bendel State v. Ezaga (1990) 6 NWLR (Pt.154) 19, was a challenge by the plaintiffs to the implementation of the findings and recommendations of a commission of Inquiry into inter-communal clash by an Edict made by the Military Governor Section 5 of which ousted the jurisdiction of the court from the Edict. The trial Court rejected a preliminary objection raised against the action by the defendants that the court has no jurisdiction to entertain the action by virtue of Section 5 of Decree No. 1 and Decree No. 13 both of 1984 which bar the court from inquiring into any act done or purported to be done under an Edict. On appeal, this court held that the jurisdiction of the High court which derived from section 236 of the constitution could not be excluded by an Edict.

Kanada v. Governor of Kaduna State, (1986) 4 NWLR (Pt.35) 361, was a resistance by the plaintiff to the expropriation of his property in violation of the guarantee by section 40 of the constitution, an act which this Court held was not covered by Decree No. 13 of 1984 to oust the court’s jurisdiction contrary to the argument of the state government. This is in contrast with the decision of this Court in Mohammed v. Commissioner of Police, (1987) 4 NWLR (Pt.65) 420, in which the appellant applied for enforcement of his fundamental human rights to be released from prison custody pending trial contesting at the same time the validity or an Edict amending the Criminal Procedure Code that regulates his detention. On both scores, the challenge of not having a fair trial and of the validity of the amendment to the CPC were met by Decree 13 of 1984.

Other instances when Decree No.13 or 1984 was raised to challenge the jurisdiction of the Court include Total Living Concept Ltd. v. Attorney of Bendel State, (1986) CA, 6 (Pt.1) 135; Anretiola v. Labiyi, (1987) 4 NWLR, (Pt. 63) 34; and Ifjie v. Attorney-General of Bendel State, (1987) 4 NWLR (Pt. 67) 972.

Act No.28 of 1970 was the first enactment on the legislative supremacy of the military government; it was promulgated on 9/5/70 and expired on the handling over of the governance of the country to the civilian administration on 1/10/79. It was re-enacted as Decree No 13. of 1984 on the taking over of the governance by the military on 31/12/83 and assimilated by operation of law by Constitution. (Suspension and Modification) Decree, No, 107of 1993, following another military take-over from a civilian interim government. As noted at page 500 of the Law Reports of the decision of this court in Military Governor Ondo State v. Adewunmi, supra, and also on pages 292-293 of the Reports of the decision on appeal to the Supreme Court, supra, the two legislations are in pari materia, at any rate, as regards any challenge to the capacity of the military authorities to make law vis-a-vis the protection of ‘any Act’ etc., done or purported to be done under or pursuant to any Decree or Edict’.

To the extent that act No.28 of 1970 and Decree No, 13 of 1984 are in pari materia as regards the legislative supremacy of the military authorities to make law cases decided under the fonner legislation also offers a compelling illustration of the point at issue, i,e, the applicability of Decree 13 of 1984 to cases of dismissal or removal from office.

Adejumo v. Col., Johnson, the Military Governor of Lagos State, (1970) 1 All NLR 183 was an action questioning the validity of an instrument made by the Governor in which Act No. 28 of 1970 was successfully invoked to bar an inquiry by the Court. Similarly, Onyuike v. Eastern States Interim Assets and Liabilities Agency, (1974) 1 All NLR (P.11) 151, was an action for enforcement of fundamental human rights in which the Appellant challenged his detention and the seizure of his property by the Military Governor of the then Eastern State under Edict No.11 of 1966. The Respondent’s objection that the jurisdiction of the trial Court had been ousted by section 6 of Act No.1 of 1966 and sub-section 1(2)(b) of Act No. 28 of 1970 was upheld by the trial Court but was rejected on appeal to the Supreme Court.

Again, Ereku v. Military Governor of Mid-Western State, (1974) 1 All NLR (Pt.11) 163, was a challenge of the constitutionality of the compulsory acquisition of a piece of land belonging to the appellant under an Amendment Edict to the Public Land Acquisition Law of 1973 in which the issue relevant to the purpose in hand turned on the validity of the Amendment Edict. The learned trial Judge held that the acquisition of the land for public purpose was valid. But on appeal to the Supreme Court the decision was reversed on the grounds that (a) acquisition by the Government for the private need of a private corporation or person was unlawful as it could not be said to be for ‘public purpose of the State within the meaning of that expression in section 2 of the Land Acquisition Law and (b) the amendment made to that Law to widen the scope of ‘public purpose’ while the appellant’s action was pending at the trial Court was contrary to section 31 of the 1963 Constitution and is, therefore, null and void. Yet again, the same principle was applied in Peenok Investment Ltd. v. Hotel Presidential Ltd., (1983) 4 NCLR 122 (1982) 13 NSCC 477, an undefined action, in which the State Lands (Cancellation of Leases) Edicts, Nos.15 and 17, of the River State, were declared null and void as being inconsistent with section 31 of the Constitution of the Federal Republic of Nigeria, 1963, that prohibited expropriation of property of the citizenry without compensation.

Finally on this point, the Supreme Court’s decision in University of Ibadan v. Adamolekun, (1967) 1 All NLR 213, 223, though anterior to the Supremacy and Enforcement of powers legislations, nonetheless, contains the guidelines for resolving conflict in the hierarchy of legislations upon which is rested the approach to the issue of jurisdiction of the Court under a combination of section 3(4) and 6 of Act No.1 of 1966 corresponding to sections 2(4) and 5 of Decree 17 of 1984 and Act No.28 of 1970 and Decree No.13 of 1984) to resolve any conflict in the exercise of legislative powers by the two executive organs of the political wing of the military administration.

In summary, from the above analysis of some of the cases that have been decided under Decree 13 of 1984 and Act No.28 of 1970 before it they relate to the capacity of the sovereign military authorities and as a corollary the incapacity of the court to question the competence of those authorities to make law in form of Decree or Edict or to inquire into the acts done or purported to be done under such Decree or Edict. However, the prohibition of the court does not preclude it from resolving any conflict between an Edict made by a Military Governor and the enabling Decree or between such Edict and the unsuspended part of the Constitution, on the one hand, and the Acts of parliament, on the other.

A close scrutiny of those cases shows that none of them relates to dismissal or removal from office of a public officer the traditional method of which before the advent of Decree No.17 is by contract of employment. From the inception of that Decree which is reserved for extreme cases I am not aware of any instance where Decree No.13 of 1984 is super-imposed on a dispute arising from Decree 17. From the point of view of redress for breach of contract of employment including dismissal or removal from office, before emergence of Decree 17 of 1984 and since its operation relief for breach of contract of employment encompassing a breach occasioned by the application of that Decree is by either declaratory action, certiorari or mandamus as can be illustrated by the decisions in:

Head of the Federal Military Government etc., The Public Service Commission, In Re kubeinje, (1974) 1 All NLR (Pt.11) 269; Nwobodo v. Teachers Service Commission, ANSLR 280; Okonkwo v. The Public Service Commission, Anambra State (1979) ANSLR 318; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Wilson v. Attorney-General, Bendel State (1985) 1 NWLR (Pt.4) 572; (1985) 16 NSCC. (Pt.1) 191; Medinat Isah v. Ajaokuta Steel Co. Ltd. (1985) HCHLR 1166; Aiyetan v. The Nigerian Institute for Oil Palm Research (1987) 3 NWLR (Pt.59) 48; (1987) 18 NSCC (Pt. 11) 777; Garba v. Federal Civil Service Commission, (1988) 1 NWLR (Pt.71) 449; (1988) 2 SNCJ (Pt.11) 270; Federal Public Service Commission v. Laoye, (1989) 2 NWLR (Pt.106) 652; (1989) 20 NSCC (Pt.11) 101; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 (1990) 4 SCNJ 97; judicial Service Commission of Bendel State v. Omo (1990) 6 NWLR (Pt.157) 407; Federal Capitol Development authority v. Sule (1994) 3 NWLR (Pt.332) 257; University of Nigerian Teaching Hospital Management Board v. Nnoli, (1994) 8 NWLR (Pt.363) 376 (1994) 10 SCNJ 71, and Ebo v. Nigerian Television authority (1996) 4 NWLR (Pt.442) 314.

The above cases decided between 1974 and 1996 and many more others on the subject matter spanned the period when Act No.28 of 1970 and Decree No.13 of 1984 were in force in succession. But it is curious that there was not a single instance when either of the two Decree was invoked to oust the jurisdiction of the court where the public officers (special provisions) Am failed to do so in several of the cases that were eventually lost by the military authorities who were the defendants. It will be uncharitable to attribute failure to invoke any of the two legislations in the past to lack of vision on the part of the generation of defence counsel in the various matters as the arguments of the defence in this particular case imply.

The answer to the poser is that wherever it was applicable Public Officers (Special Provisions) Act adequately and effectively covered cases of dismissal or removal from office of public officers without enlisting the aid of the Supremacy and Enforcement of Powers Decree that were designed for a different purpose as shown by the example of decided cases earlier examined. Indeed, legislation on supremacy of powers was an aftermath of the face-off and saber-rattling between the Judiciary and the Military Authorities as shown by the Supreme Court’s landmark decision in Lakanmi v. Attorney-General of Western State, (1970) 6 NSCC 143, in which that court nullified the Federal Government Decree NoA5 of 1968 and Edict No.5 of 1967 promulgated by the Military Governor of the defunct Western State. The decision was delivered on 24/4/70 in response to which Act No.28 was promulgated on 9/5/70. That, in short, is the genesis of the legislation on the supremacy of powers which does not impact upon public officers (Special Provisions) Act.

Therefore, from the precedent of the decided cases on the subject and having regard to the purpose for which the legislations on enforcement of powers were enacted to serve and the motive for enacting them the argument of learned counsel for the respondents that Decree No.13 of 1984 applies to the cases of dismissal or removal from office is a clap-trap and phoney.

It remains to correct the erroneous argument of learned counsel for the respondents who canvassed with the feverish excitement of an adolescent set out for the carnival that the decision of this court in Okara v. Ndili, supra, was reached per incuriam. It is a piece of judicial solecism bordering on heresy to say that the decision of a higher court was reached per incuriam as the learned trial Chief Judge who set the tone had expressed with obvious diffidence.

In the decision of this court in Nwako v. Governor of Rivers State, supra, at page 482, it was explained that: whenever a relevant prior decision is not cited before the court, or mentioned in the judgment of the court, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and is not binding on a later court”. As was further expounded in Young v. Bristol Aeroplane Co. Ltd., (1944) K.B. 718, 729, reference to ‘relevant previous decision’ in that passage includes failure to refer to the appropriate legislation including a rule of the court.

The reason for the refusal of the court below to follow the decision of this Court in Okara v. Ndili, supra. was that Decree No. 13 of 1984 was not considered in that decision. As the learned trial Chief Judge put it at the concluding part of his judgment: I have no doubt that the decision would have been otherwise if their Lordships’ attention was drawn to Decree No.13 of 1984″. That view is, with respect, erroneous for two reasons. Firstly, as I have shown above, the University of Nigeria Act, 1978, under which the Visitor acted or removed the appellant from office is not a ‘Decree’ or an Edict’, the two types of legislation that come within the protective cover of Decree No.13 of 1984. Moreover, as I have also demonstrated, albeit abundantial cautela, there is no precedent from the decided judicial authorities on the application of that Decree of of Act No.28 of 1970 before it that either version of the legislation on Supremacy and Enforcement of Military Government powers has ever been applied to action on dismissal and removal of public officers from office for which specific provisions are made by Public Officers (Special Provisions) Act.

Secondly, but more significantly, the essence of refusal to follow an earlier decision that has been rendered per incuriam by a higher court is the co-existence of two conflicting decisions of the higher court binding on the lower court one of which is rendered in ignorance or forgetfulness of a relevant prior decision or material legislation or rule as canvassed in Odi v. Osafile, (1985) 1 NWLR (Pt.1) 17; and Rossek v. African Continental Bank Ltd., (1993) 8 NWLR (Pt.312) 382; (1993) 10 SCNJ 20. But even if the decision of a higher court was reached per incuriam an inferior court may criticize it but it must follow the decision. As the Supreme Court affirmed in Tsamiya v. Bauchi Native Authority, (1957), NRNLR 72, 83.

“…it is not for an inferior court to say that a decision of the higher court was reached per incuriam, that is a privilege of the higher court if, after reconsidering its former decision, it is satisfied that the previous decision has been reached per incuriam”.

See further the decisions of the same court in Adegoke Motors Ltd. v. Adesanya, (1989) 3 NWLR (Pt.109) 250: (1989) 20 NSCC (Pt.11) 327. 338; and Yusuff v. Dada, (1990) 4 NWLR (Pt.146) 657: (1990) 7 SCNJ 68, 83; the House of Lords’ decision in Cassel and Co. Ltd. v. Broome, (1972) 2 WLR 645, and the decision of this court in Attorney-General of Ogun State v. Dr. Egenri, (1986) 3 NWLR (Pt. 28) 265.

From the foregoing analysis, I come to the conclusion that the learned trial Chief Judge was led into error to believe that the Federal Military Government (Supremacy and Enforcement of Powers) Act, CAP. 137 of 1990 Edition of the Laws of the Federation of Nigeria, formerly Decree Non of 1984, applied to the appellant’s action. From that wrong premise the learned Judge was goaded on to coming to the conclusion that the decision of this court in Okara v. Ndili, supra, on an interlocutory appeal to settle the question of whether the court below had jurisdiction to entertain the action was reached per incuriam. Drifting on the current of a deep-seated misapprehension of the law the learned Chief Judge finally decided that his jurisdiction to hear the case had been ousted by Decree 13 of 1984 which has nothing to do with the case before him. Therefore, I agree with learned Senior Advocate for the appellant that the learned Chief Judge was wrong to have declined jurisdiction to deliberate on the case that has been comested to finality by the parties.

On the germane issue of whether the learned trial Judge was right in dismissing the Appellant’s case after he held that he had no jurisdiction to hear the case, learned Senior Advocate for the Appellant submitted that where a court holds that it has no jurisdiction to hear a case the proper order to make is one of striking out the case and not dismissing it. He relied on the decisions in Umenwuluaku v. Ezeana (1972) 5 SC 343; and Oloriode v. Orebi, (1984) 5 SC 1. Learned Senior Advocate for the 3rd Respondent who was hedgy on the issue submitted that since the trial Court said that it had no jurisdiction to hear the case it is not helpful to the Appellant whether the action was dismissed or struck out as the ouster clause of Decree 13 of 1984 has put paid to the Appellant’s claims which cannot be revived.

Complementing the view of learned Senior Advocate for the 3rd Respondent on the point, the learned principal Legal Officer for the 1st and 2nd Respondents submitted, ex cathedra, that the Appellant having lost the action completely in the sense that the action is incompetent by reason of the court’s jurisdiction being ousted by Decrees Nos.13 and 17 of 1984 the only order that was open to the court to make is one of dismissal or the Appellant’s action as the learned trial Judge rightly did. In support of the argument she relied on Senator Adesanya v. President of the Federal Republic of Nigeria. (1981) 2 NCLR 358; (1981) 5 SC. 112, 128; Thomas v. Olufosoye, (1986) 1 NWLR (Pt.18) 669, 693; and Oko v. Igweshi, (1997) 4 NWLR (Pt.497) 48.

It could well be that, as learned Senior Advocate for the 3rd Respondent submitted on a successful plea of ouster of court’s jurisdiction it may not in practical terms be of any avail to the plaintiff whether his action was dismissed or struck out since the remedy is extinguished, but, in principle, from the point of view of adjudication, the law draws a line between the conclusion reached after a case has been determined on ‘the merits’ as defined in Cardoso v. Daniel, (1986) 2 NWLR (Pt. 20) 145. and where the court is precluded from going into the merits or the case either because the action is statute barred or not properly constituted or as in the issue on which this appeal turns, the jurisdiction or the court is ousted for reason which has nothing to do with the merits of the case.

In any case, the general principle is that where a court holds that it has no jurisdiction to entertain an action the proper order to make is one of striking an action and not an order of dismissal because dismissing an action postulates that the action has been heard on the merits: See Oloriode v. Oyebi, supra, at page 17; Din. v. Attorney-General of the Federation, (1986) 1 NWLR (Pt.17) 471, 508; and Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540; (1994) 6 SCNJ (Pt.1) 123, 142-143. but more importantly, dismissal of an action operates as a bar to the plaintiff instituting a fresh action on the same matter while a plaintiff whose action is struck out can still bring a fresh action for the same claims. See Soeton v. Total Nigeria Ltd., (1972) 1 SC 86, 89: Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46; (1989) 20 NSCC (Pt.1) 505; Okoye v. Nigerian Construction & Furniture Co. Ltd., (1991) 6 NWLR (Pt. 199) 50 1,543; and Mohammed v. Olawunmi (1993) 4 NWLR (Pt.287) 254 (No.3), (1993) 5 SCNJ. 126, 135-136.

On the principles reviewed above, learned Senior Advocate for the Appellant is right that making an order of dismissal after the finding by the learned Chief Judge that he had no jurisdiction to hear the Appellant’s case is, in the light of the conclusion reached on other five issues, wrong. That resolves in favour of the appellant Issue one in the Appellant’s Brief of Argument. By the same token, for the reasons canvassed variously above, I will also resolve in favour of the appellant issue two in the Appellant’s brief, both issues in the 1st and 2nd respondent’s brief and Issues one and two in the 3rd Respondent Brief of Argument.

The 3rd Issue in the Appellant’s Brief of Argument on whether the judgment of the court below is perverse is a mixed bag in which fresh points being taken are interspersed with the matters that have already been examined. The same thing applied to the order of presentation of the Issue by the 3rd Respondent in her Brief of Argument. This calls for a separation of the wheat from the chaff.

In the Appellant’s Argument the question of estoppel which is bound up with the way the issue of jurisdiction was raised at the trial court and the question of the requirements that must be satisfied by one raising the plea of immunity who must expressly plead defence have, in my view, been settled in the issues already resolved. Entertaining the question of jurisdiction at the stage of address which learned Senior Advocate for the appellant argued contradicted the position taken earlier by the learned trial Judge in his ruling on 13/4/95 on application for amendment of pleading has also been settled. Whether the objection to court’s jurisdiction was pleaded is no longer of any important any more than the question of requirements of what must be satisfied before the plea of immunity can be properly raised.

Similarly, the question of whether striking out the name of the visitor from the suit has left the action truncated with no proper party against whom the reliefs sought can be claimed was argued at length in the 3rd Respondent’s Brief of Argument. I do not think that the point is a live issue any more. This is because the point was raised in the interlocutory appeal, albeit by the 1st and 2nd Respondents. It was the second of the two issues formulated on appeal but on which no argument was canvassed in support of and it was, therefore, deemed to be abandoned (See page 110 of the record). The position is, therefore, as stated by Nwokedi, C.J. as he then was, in his ruling of 29/1/88, at page 72-73 of the record: the 3rd Respondent is a juristic person with the corporate name ‘The University of Nigeria’; other components including the Visitor are ‘official’ or ‘organs’, concluding, at page 76, that ‘the action with the University as a defendant is properly constituted’. That position has not changed and therefore, the argument that even if any wrong is held to be done with the Appellant, the 3rd Respondent cannot be held liable is begging the question. Again, I will also consider it as settled the question of the proper form of action to be adopted by the Appellant, whether ‘certiorari’ vis-a-vis ‘declaration’ as this has been indicated elsewhere in this judgment.

On the propriety of the leaned trial Chief Judge expressing doubt about the decision taken by a brother Judge of co-ordinate jurisdiction, the remarks about the striking out of the name of the visitor are a bit too near the knuckle for judicial taste. The decisions in Ndiribe v. Ogbogu, (1989) 5 NWLR (Pt.123) 599, 622; Okoye v. Nigerian Construction and Furniture Co. Ltd. Op. City, Panya Anigboro v. Sea Trucks Nig, Lid infra, referred to by learned Senior Advocate for the appellant are in point. But since the learned Senior Advocate shares the view of the learned trial Judge but defers only on the forum chosen for expressing the view, it is non sequitur.

Against this background, the salient points argued under Issue Three in the Appellant’s Brief of Argument on the question of whether the judgment of the learned Chief Judge is perverse are the propriety of the judge introducing in his judgment facts known to him, outside the evidence led on pleaded facts and the effect of inordinate delay on the judgment.

As contended by learned Senior Advocate for the Appellant, the summary of the events leading to the appointment of the visitation panel by the Visitor is nowhere articulated in the evidence before the trial cout 1 in the sense of the background of the incident being brought out during examination of the witnesses or in the addresses of the learned counsel to the parties which may be relevant even though it is no evidence. Admittedly, it is possible to piece whether from the mountain of documentary evidence the factual background of the events leading w the probe but doing so will amount to investigation which is not the function of the court.

In Duruminiya v. Commissioner of Police, (1961) NNLR 70, a book of account was put in evidence but only a few out of the numerous relevant entries in the book were examined in court. While writing his judgment the learned trial magistrate on his own examined the book and came out with the disclosure of things that were not brought out in court and which were not of the type that could have been noticed by the court. The practice was disapproved by the appellant Division of the High court of the former Northern Nigeria which held that the entries which has not been the subject of oral evidence or examined in the court were not in evidence. The court, per Bate, J. as he then was, expounded the underlying rationale, at pages 73-74, as follows:

“A trial is not an investigation and investigation is not the function of court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in court at this trial failed to support the prosecution case, and the magistrate should have dismissed the case .

It was flat part of his ditty to do cloistered justice by making an inquiry two the case outside court, not even by the examination of documents which were in evidence, when the documents had not been examined in court and the Magistrate’s examination disclosed things that had not been brought out and exposed to test in court, or were not things that, at least, must have been noticed in court”.

(Italics Mine)

That dictum was approved by the supreme Court in the Queen v. Wilcox, (1961) All NLR 631, 634, and applied in Bornu Holding Co. Ltd. v. Bogoco, (1972) 1 All NLR 324. 329-332, Adesoye v. Gardner. (1977) NNLR 136, 141; and Onibudo v. Akibu, (1982) 13 NSCC 199,207, and in a host of other decisions. Then background facts on which the learned trial Judge based the opening pan of his judgment not being from the evidence led before him that part of the judgment must be a fruit of investigation by the Judge, albeit from the documentary evidence before him. Therefore. I agree with learned Senior Advocate for the appellant that a finding of fact which is merely speculative and one not based on any evidence is perverse and equally apposite are the decisions in Sierra Leone Development Corporation Ltd. v. Taylor, (1952) 14 WACA 137, and Ihewuezi v. Ekeanya, (1989) 1 NWLR (Pt.96) 239, 247-248.

On the question of inordinate delay of the trial which learned senior advocate contends to be evidence of perversion he recalled that the last of written addresses by the counsel was submitted on 20/10/95 but judgment was not delivered until 5/5/97. In between ‘the court indulge a motion for stay of proceedings filed on 18/10/95 and had the same adjourned 13 times’ down to 9/1/97 when the motion was withdrawn and struck out and learned counsel for the 3rd respondent further addressed the court orally. The long delay, he agitated, must have affected the learned trial Judge’s recollection of the evidence which he submitted is a manifestation of perversion.

‘There is no direct reaction to the two points by learned Senior Advocate for the 3rd Respondent. But the learned principal Legal Officer for the 1st and 2nd Respondents submitted on the question of delay that’ the mere fact that the judgment of the court is delivered after the three months stipulated by section 258 of the 1979 Constitution as amended by Act No. 17 of 1985 is not fatal as long as such non-compliance has not resulted to the Appellant suffering a miscarriage or justice. She further elucidated that “the Appeal Court can still look at such judgment and if satisfied that the party complaining has not suffered a miscarriage of justice allow that judgment to stand. See Otukotintin v. Sarumi (1997) NWLR (Pt.480) at 222”.

Be that as it may, ‘perversion’ has been described as persistent in error, different from what is reasonably or required… A decision may be perverse where the trial Judge look into account matters which they ought not to have taken into account or where the judge shut his eyes to the obvious. See Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; (1985) 16 NSCC (Pt.1) 472, 485 and Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, 16. Going by the connotation or the adjective ‘perverse’ giving, as did the learned trial Judge, an abstract summary of an event unrelated to the evidence before the Court is alien to judicial proceedings which thrive on evidence and is, therefore, perverse in the sense of taking into account what the learned Judge ought not to have acted upon. i.e. his private knowledge of the matter before him. On the question or delay, I take judicial notice of the change in counsel representing the 3rd Respondent that accounts for some dull in the proceedings. But after making due allowance for the change of counsel there can be no jurisdiction for adjourning a motion for stay of proceedings for 13 times which obviously accounts for the delay of over 18 months between the time when the last written address by counsel was submitted and when the judgment was delivered. Even though, technically, the period of delay is abridged by the supervening oral address by the new counsel who rushed in an ace up his sleeve yet the dawdling fits into the class described in Dibiamaka v. Osakwe (1986) 3 NWLR (Pt.1 07) 101; (1989) 20 NSCC (Pt.11) 253, 262, as “the contactors of the Bench’ who would…preserve rather than reserve judgments”. Therefore, I will resolve in favour of the Appellant issue 3 in the appellant’s Brief of Argument that on those two palms the judgment or the Court below is perverse.

The substance of Issue Four in the Appellant’s Brief or Argument is that the learned trial Judge who heard the evidence of the parties on which counsel addressed him having failed to adjudicate upon the merits of the case on the erroneous ground that his jurisdiction to try the case had been ousted this court is invited to review the evidence and give judgment to the appellant; moreso, as the evidence is, in the main, documentary and does not call for watching the demeanour or assessing the credibility or the witnesses. Learned Senior Advocate for the appellant submitted that the learned Chief Judge erred for refusing to make findings on the merits of the case in keeping with the guidelines of this court in Anigboro v. Sea Truck Ltd. (1995) 6 NWLR (Pt399) 35, 58-59, on the duty to make, in the alternative, findings of fact where a case is to be dismissed or struck out on a technical ground so as to obviate the need to send the case back to the trial court and thus save lime if on appeal the judgment given on a technical ground is found to be erroneous.

Learned Senior Advocate submitted that notwithstanding the failure of the Court below to discharge that duty this court has the power to make any findings of fact which the Court below would have made. In support of that submission he referred to some relevant dicta in Nwaezeama v. Nwaiyeke (1990) 3 NWLR (Pt.137) 230,240; United Bank for Africa Ltd v. Achoru (1990) 6 NWLR (Pt.156) 254; and Okpuruwu v. Okpokam (1988) 4 NWLR (Pt.90) 554, He urged the Court to exercise its power of review and to allow the appeal and give judgment to the appellant.

Learned Senior Advocate for the 3rd respondent whose strategy is the ouster of the court’s jurisdiction seems to be out of his depth as regards argument on the merits of the case. He made a general submission that ‘the learned trial Judge dealt admirably with salient points, facts and issues that arose in the case and that his attitude in this case and his judgment is (sic) impeccable and sustainable. He concluded meekly that the cardinal issue before the court below is whether it had jurisdiction to entertain the case and. therefore, it is pointless and futile to continue dealing with the merits of the matter once the court concluded that it had no jurisdiction. In buttress or that proposition he referred to the supreme court’s decisions in Onyema v. Oputa supra at 293, and Osadebay v. Attorney-General of Bendel State supra at 579-572. He urged the court to uphold the decision of the court below and dismiss or strike out the appellant’s case.

The learned principal Legal Officer for the 1st and 2nd Respondents whose strategy like that of learned Senior Advocate for the 3rd Respondent is the technical manouver around the Court’s jurisdiction has practically nothing to offer on the argument on the merit of the action. In this regard, she submitted tersely that once a case is caught by Decree 13 and 17 of 1984, there is no need for the court to consider the submissions made to it before ruling the plaintiff ‘out of hearing’ citing in support Oko v. Igweshi supra. In sum, the argument of the Principal Legal Officer is that the hub of the appeal around which every issue revolves is the ouster of the court’s jurisdiction that does not allow the appellant any leeway. On that note, she urged the court to dismiss the appeal.

What this Court is invited to do is that if after finding that contrary to the decision of the court below the jurisdiction of that Court is not ousted by Decree No. 13 of 1984. as I have found, this Court should make this appropriate findings on the evidence before the trial Court and give judgment to the Appellant. The invitation raises the issue of the dividing line between the traditional function of an appellate court and a court of first instance that was succinctly demarcated in Oroke v. Ede (1964) NNLR 118, 120, where the court propounded the general principle that:

“An appeal Court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided”.

That broad general principle admits of exceptions the starting-point of which is section 16 of the court of Appeal Act the material of which reads:

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part…”

See also rule 20 of Order 1 of the Court of Appeal Rules 1981. The scope of those powers was explained in Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172; (1990) 3 SCNJ 200. 204-205. Fajuade v. Onwoamanam (1990) 2 NWLR (Pt.132) 322: (1990) 3 SCNJ 200. However, wide and liberal as the powers of this court are they must be exercised within certain parameters which begin with the general principle that ordinarily an appellate court will not interfere with the decision of the trial Court where so much turns on the credibility or reliability of the witnesses.

This is because ascription or probative value to such evidence is the primary function of the trial Court which saw, heard and assessed the witnesses. See Akinloye v. Eyiyola (1965) NMLR 92, 95; Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626; (1986) 1 All NLR (Pt.1) 371, 377; Agbabiaka v. Saibu, (1988)7 SCNJ 305, 318, The appellate court will also not do so for the sheer fancy of substituting its view for the view of the trial Court when that Court has properly evaluated the evidence and made findings of facts; See Obodo v. Ogba, (1989)2 NWLR (Pt.54) 1; (1987) 1 All NLR (Pt.1) 157, 162-163; Obechie v. Onochie (No.1) (1988) 1 NWLR (Pt.70) 370, 378; and Oro v. Falade (1995) 5 NWLR (Pt.396) 385; (1995) 5 SCNJ 10,24-25.

But an appellate court will disturb findings of fact by the trial court where such findings are shown to be unreasonable or perverse and not a result of a proper exercise of judicial discretion. It will similarly interfere with the decision of the lower court where there is ample evidence and the court failed to evaluate it and make correcting findings on the issue as in such a case the appellate court is in as much good position as the trial Court to make the proper findings. See Shell BP Petroleum Development Co. Ltd. v. Pere Cole (1976) 3 SC 183, 194; Isokwa Motors (Nig.) Ltd. v. Awoniyi (1999) 1 NWLR (Pt.586) 199, 205; Kwajaffa v. Bank of the North Ltd. (1999) 1 NWLR (Pt.587) 423, 435. An appellate court will also interfere where the findings do not flow from the evidence on which such findings are bused; See Ademolaju v. Adenipekun (1999) 1 NWLR (Pt.587) 440, 455.

The Appellant’s complaint is against failure by the learned trial judge to evaluate the evidence and make findings. It is a situation of not doing anything, a non-feasance’, which denotes a slipshod performance where what the trial court did is not considered to be good enough. Therefore, considering the fact that the parties contested the case at the court below with all the controlling laws and rules duly observed and having regard to the fact that the evidence is largely documentary coupled with the fact that none of the Respondents called any witness at the trial, this is a proper situation for this Court to come up with findings from the evidence before the trial court rather than sending the case back to the trial court for another round of contest at the expense of the litigants who bear the brunt and who must by now be weary of the forensic battle that excites only the legal gladiators’.

Against this background, the issues joined by the parties on their pleadings and the evidence led thereon, both oral and documentary are the twin crucial hinges on which the resolution of the dispute between the parties rests to the examination of which I must turn my attention.

The Appellant as the plaintiff filed on 18/12/86 a 22-paragraph statement of claim paragraphs 1 to 14 of which deal with the background of the parties to the dispute and the chronological record of employment of the appellant in the University including his conditions of service and his advancement in the employment up to that time of the dispute. Paragraphs 15-22 deal with what led to his removal from office as the Vice Chancellor of the University and his retirement from the service of the University by the Visitor. In this part is also contained the attack of the Report of the Visitation Panel that led to his removal from office and retirement from service in which are itemized the particulars of (a) ‘patent errors of law’, (B) The panel’s failure to take into account relevant considerations and (c) breach of the Rules of Natural Justice. The pleading was concluded with the reliefs sought as I summarized in the early part of this judgment.

The 3rd respondent filed on 18/13/87 an 8-paragraph statement of defence in paragraph 8 of which she (a) admitted paragraphs 1-15 of the statement of claim and (b) made a general denial of the remaining paragraphs of the statement. In paragraph 1, she gave notice of objection that “the name shown as that of the 3rd respondent is not the legal persona created under the University of Nigeria Decree 1978”, while in paragraph 2 she contested in limine that the court’s jurisdiction to entertain the action had been ousted by Public Officers (special provisions) Decree 1984. In paragraphs 3 and 4, the Respondent averred that the statement of claim disclosed no cause of action followed by paragraph 5 in which she averred that the visitation panel was appointed by the visitor in response to the appellant’s clamour for it and that the appellant fully participated in the panel’s proceedings. She averred in paragraph 6 that the Anambra State High Court cannot exercise appellate jurisdiction over the findings of the visitation panel and in paragraph 7 concluded that the order sought by the appellant cannot be granted by the University because (a) the appellant’s terms as the Vice Chancellor had expired and (b) ‘the post of the professor of physics has to the knowledge of the plaintiff since been filled.

In their joint 10 paragraph statement of defence filed on 18/3/87 as later amended the 1st and 2nd Respondents in paragraph I admitted paragraphs 1-8, 10 and 13-14 of the statement of claim while in paragraph 3 they denied paragraphs 11 and 16-21 or the statement of claim by a general traverse; made a qualified admission of paragraph 12 of the statement of claim by averring that full time regular appointment of the appellant did not entitle ‘him to remain on the post until retirement and to gratuity and pension’. Paragraphs 4,5, 6 and 8 were taken up with the Visitation Panel which they averred was given wide terms of reference before which the Appellant appeared to put across his case; that the panel conducted its proceedings impartially, the Visitor considered the Report of the panel and the decisions of the Visitor on the report are valid and lawful, they further averred. Paragraph 7 averred that allegation in paragraph 19 of error of law by the panel is made out of con while in paragraph 9, it is averred that Dr. Ndili as the Vice Chancellor is also the same person as Professor Ndili. In paragraph 10, the Respondent raised a preliminary objection to the appellant action, viz, that (a) the Visitor was improperly joined and (b) Decree No. 17 of 1984 ousted the jurisdiction of the trial court.

The summary of averments in the pleading calls for some clarifications before the ascertainment of what issues were joined in the pleadings. To begin with, the question of jurisdiction which is fundamental to adjudication has been properly taken and settled and so is the position of the Visitor that touched upon the composition of the action that was also resolved. In paragraph 1,3,4, and 6 of her statement of defence, the 3rd Respondent gave notice of objection (a) to the name of the University, (b) that the suit disclosed no cause of action and (c) that the court below could not exercise jurisdiction over the findings of the Visitation Panel. The three questions touched on issue of law which the respondent had the right to raise as a preliminary mater under rule 2 of order to of the Anambra State High Court Rules, 1988. Not having done so before the trial they are deemed to have been abandoned.

On ascertainment of what issues of joined on the pleadings that should be submitted for trial, first are the admissions. Paragraph 1 to 15 of the statement of claim were admitted by the 3rd Respondent while the 1st and 2nd Respondents admitted paragraphs 1-8, 10 and 13-14 of the statement of claim. There is no reference to paragraphs 9 and 15 of the statement of claim in the 1st and 2nd Respondent’s amended statement of defence. Therefore, the 2 paragraphs are deemed to have been admitted by both respondents. The 3rd Respondent admitted paragraphs 11 and 12 of the statement of claim on whether the employment of the Appellant was governed by conditions of service for the Senior Staff of the University and what is the tenure of the Appellant’s appointment; but the 1st and 2nd Respondents denied the averments in those two paragraphs. Being matters peculiarly within the knowledge of the 3rd Respondent as the Appellant’s employer and one which are, at any rate, in writing and statutory as per Exhibit 52 and the University of Nigeria Act the denial by the 1st and 2nd Respondents is not of any importance.

As I noted earlier, paragraphs 1 to 14 of he statement of claim deal with the background of the parties to the dispute and the Appellants employment record with the University including his conditions of service. Since the averments have been admitted by the Senior Advocate for the Appellant, on page 249 of the record, that the averments in those 14 paragraphs as well as in paragraph 15 thereof are established facts on which no evidence is required is correct in law. Particularly apposite, are the decisions in Olubode v. Oyesina, (1977) 2 SC 79, 85; and Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; (1984) 2 SC 15,88, cite by the learned Senior Advocate in support of his submission. See also Order 9, rule 11, read with Order 1 rules 1 and 2(2), of the Anambra State High Court Rules, 1988, to be cited in succeeding references as ‘the High Court Rules.

On the second arm, denial of certain averments in the statement of claim, the respondents in their separate statement of defence made a general traverse as follows:

“the 1st and 2nd Respondents in paragraph 3 of their joint amended statement of defence averred that:

“the defendants deny paragraphs 11, 16, 17, 18, 19, 20, and 21 of the statement of claim and put the plaintiff to the strictest proof of the averments therein contained; and

(b) the 3rd respondent in paragraph 8 of her statement of defence averred that:

“subject to the foregoing the University denies all the averments in the plaintiff s statement of claim save paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15”.

Both versions of pleading are general traverse that has been held not to amount to a denial of the plaintiffs averments in the statement of claim. The position was canvassed in Lewis Peat (N.R.I.) Ltd. v. Akhimien, (1976) 1 FNLR 80,83, where the Supreme Court, per Idigbe, J.S.C., explained the rudiments of the principle as follows:

when as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question this raised between the parties is an ‘issues of fact’.

“…however,in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must slate so specifically; and he does not do this satisfactorily by pleading thus: ‘defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will; at the trial put the plaintiff to proof’. As was held in Harris v. Gamble, (1978) 7 CH D 877, a plea that ‘defendant puts plaintiff to proof amount to insufficient denial; equally a plea that the’ defendant does not admit correctness’ of a particular allegation in the statement of claim is also an insufficient denial. Rutter v. Tregent (1879) 12 CH. D. 758”.

The above exposition is based on the rules of court which are in pari material with rules 8 to 12 of Order 9 of the Anambra State High Court Rules, 1988, which have been interpreted by the Supreme Court in Owosho v. Dada, (1984) 15 NSCC. 576; Oguma Associated Companies (Nig.) Ltd. v. International Bank for West African Ltd., (1988) 3 SCNJ (Pt.1) 13,30 & 32; (1988) 1 NWLR (Pt.73) 658; Adimora v. Ajufo, (1988) 6 SCNJ 1823-25; (1988) 3 NWLR (Pt.80) 1; Balogun v. Labiran, (1988) 6 SCNJ 71, 85; (1988) 3 NWLR (Pt.80) 66. For particular elucidation of the point, see the decision of this court in African Continental Bank Ltd. v. Egbunike, (1988) 4 NWLR (Pt.88) 350,360-362; and the refreshing clarifications and elaboration by the Supreme Court on appeal in Egbunike v. A. C. B. Ltd., (1995) 2 SCNJ 58, 72-73, 75 and 78 -79 (1995) 2 NWLR (Pt.375) 34.

Applying the principles evolved from the above decisions to the case in hand, at the close of the pleadings the Respondent did not join issue on the facts pleaded in paragraphs 16 to 22 of the statement of claim. And as the Respondents had also expressly admitted facts pleaded in paragraphs 1 to 15 of the statement of claim there was a wholesale admission by them of the facts pleaded by the Appellant.

Thus, the only issues to be submitted for trial are (a) the constitution of the action with regard to the position of the Visitor as a defendant, (b) the jurisdiction of the court in relation to the applicability of Public Officers (Special Provisions) Act, both of which have been resolved, and (c) to test the evidence of the plaintiff/appellant whether it justifies the exercise of the court’s discretion to grant the declaratory reliefs sought which, on the principle in Bello v. Eweka, (1981) 1 SC 101, 121-122, as clarified and restated in Sorungbe v. Motunwase (1988) 5 NWLR (Pt.92) 90; (1988) 19 NSCC (Pt.111) 252, 262, cannot be granted either on admissions or default of pleading.

At the trial, the material testimony of the Appellant is the verification on oath of the averments in his pleading on his appointment as a senior staff of the University and his advancement to the position of the Professor of physics and what his tenure of office entailed including his conditions of service that are regulated by the University of Nigeria Act and Exhibit 52, Regulations Governing Conditions of Service for the Senior Staff (Grade Levels 07-17) of the University of Nigeria’. He further deposed to his appointment as the Vice Chancellor of the University and to appointment by the Visitor of the University of the Visitation panel to look into the affairs of the university and how he was removed from the office of the Vice Chancellor and retired as a professor by the Visitor acting on the Report of the Visitation Panel. He gave evidence of irregularities in the proceedings of the panel which include adjudicating on allegation of crime against the Appellant, taking into consideration matters which are extraneous to the appellant’s duty or office that was the subject of investigation by the panel and denial of fair hearing by breach of the Rules of natural justice. He denied certain allegations made against him in the Report of the panel and concluded with the reliefs he sought from the court with the consequential orders that (a) he remained the Vice Chancellor of the University and (b) he was still a professor of physics in the University.

The evidence is one way as the respondents who joined no issue on the appellant’s pleading did not also adduce evidence at the trial. Having held earlier that neither Decree No. 13 of 1984 nor Decree No.17 of 1984 applies to the case on appeal the action becomes a straight case of unlawful dismissal from two separate posts, i.e. from the office of the Vice Chancellor and from the position of the professor of physics. That leaves only one question to be resolved, namely, whether on the law governing the relationship between the university and the appellant as applied to the material evidence before the trial court, both oral and documentary, there was a breach of contract of service by the university which entitles the appellant to the reliefs sought.

The test of whether the dismissal of an employee is proper or unlawful is whether the procedure adopted in effecting the dismissal conforms to the conditions laid down in the terms of the employment of the aggrieved employee. To be unlawful, there must be proved that there is a departure from the prescribed procedure or that in applying the rule there is a violation of the rule of natural justice so as to render the formal compliance a travesty. See Nicol v. E.C.N. (1968) 3 ALR. Comm. 434; Adedeji v. Police Service Commission (1968) NMLR 102; Denloye v. Medical and Dental Practitioners Committee (1968) 1 All NLR 306; Awotedu v. Vice Chancellor, University of Ibadan (1982) OY S.H.C 262; and Olaniyan v. University of Lagos (1985) 3 NWLR (Pt.9) 599.

At all times material to the suspension and removal of the appellant from office as the Vice Chancellor of the University. 3/10/85 and 18/11/85, respectively, as per Exhibits 5 and 6, the only competent authority that could appoint or remove a Vice Chancellor from office is by virtue of paragraph 4(1) of Schedule 1 to the University of Nigeria Act. 1978, ‘the Armed Forces Ruling Council’, the name to which the Military Council, as the earlier appointing authority was changed by Decree No. 17 of 1985.

In Anya v. Iyayi. supra. at page 73, Karibi- Whyte, JSC., expounded with clarity that the powers of Head of State are distinct and separate from those of a Visitor and that where statute confers specific or special powers on any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law. By parity of reasoning the powers conferred on the Armed Forces Ruling Council cannot be exercised by a visitor to the University whose powers in the con of the University of Nigeria Act are confined to the matters expressly stated in sections 12, 13, and 14 thereof which do not include the power to remove the Vice Chancellor from office, a proposition to which add support is lent by sub-section 14(1) of the Act.

As the Armed Force Ruling Council as a body was the authority vested with the power to appoint or remove the Vice Chancellor from office, it will be presumptuous for a member or component of that body to exercise that power. In the compelling logic of Akanbi, J.C.A., as he then was, in an unreported decision of this court in case No. CA/I/M/140/88, University of Ibadan v. Ekundayo, delivered on 5/6/89, ‘both the Head of Government and the Chief of staff are a part of the Federal Military Government and it stands to reason to say that a pan cannot be the same as, or equal to a whole’. The result is that the removal by the visitor of the University of the appellant as the Vice Chancellor of the University is ultra vires the powers of the visitor under the University of Nigeria Act, No.1 of 1978, and is, ipso facto, ineffective and invalid.

Arguing against his retirement from the service of the university as a professor of physics, the appellant relied on Exhibit 52, ‘Regulation Governing Conditions of Service for the Senior Staff (Grade Levels 07-17) of the University’, and on the University of Nigeria Act. No.1 of 1987. The latter is an Act of Parliament which I am bound to take judicial notice of by virtue of sub-sections 74(1)(a) and (b) of the Evidence Act; the former is not shown to be published as a subsidiary legislation and, therefore, has to be proved by the party relying on it.

Exhibit 52 produced as the Regulations governing the appellant’s conditions of service in the university is a 31-page document with a 6-page Appendices and a 10-page Federal Treasury circular and a covering letter by the Registrar of the University. The documents are reproduced as Pages 496 to 543 of the record excluding the last page of the Exhibit. The documents were admitted on page 143 as a composite Exhibit, marked 52 and tendered through 2 PW who was not examined on them. Exhibit 52 was identified by the Appellant, on page 146 of the record, as the document regulating his appointment but he was neither examined on the contents nor cross-examined on them. In the light of the decision in Duriminiya v. Commission of Police, supra, which I elaborated in the earlier part of this judgment, I am precluded from making reference to any part of the document the contents of which were not brought out in evidence at the trial.

However, as regards the regulation of the Appellant’s employment by the University of Nigeria Act, 1987, section 15 thereof is relevant. The material parts reads:

“If it appear to the council that there are reasons for believing that any person employed as a member of the academic or administrative or technical staff of the university other than the Vice Chancellor should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall:

(a) give notice of those reasons to the person in question;

(b) afford him an opportunity of making representations in person on the matter to the council; and

(c) if he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements;

(i) for a joint committee of the council and the senate to investigate the matter and to report on it to the council; or

(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council”.

The notification of the appellant of his retirement from the service of the university as the professor of Nuclear physics is combined in a letter, Exhibit 6, notifying him also of this removal form office as the Vice Chancellor of the University. It was written by the Permanent Secretary, Federal Ministry of Education, Science and Technology, dated 18/11/85 and addressed to the appellant, the heading and paragraph 1 of which read:

“Retirement from Office:

Prof F.N. Ndili

I regret to inform you that as a result of the findings of the visitation panel to the University of Nigeria, Nsukka, the Visitor has approved your immediate removal as Vice Chancellor of the university and retirement from the university service”.

(Italics Mine.)

This letter was sequel to the acceptance of the recommendation of the visitation panel by the visitor in paragraph 110 (page 39) of Exhibit 43, the visitor’s Implementation of the Panel, which reads:

“The visitor accepts this recommendation and in addition, has found that professor Ndili gave the University a very unacademic style of leadership and directs that the Vice-Chancellor be at once removed from office and retired from the service of the University immediately”.

The phrase ‘retired from the service of the University’ used in the Visitor’s directives above and in the notification letter to the appellant, Exhibit 6, would appear to be synonymous with the corresponding phrase’ removed from his office or employment’ in sub-section (15)(1) of the University of Nigeria Act reproduced above connoting a premature termination of the appointment or employment of the staff concerned before the due time of expiration.

That being the case, both the visitor’s directives in Exhibit 43 and the execution of the directives in Exhibit 6 are at variance with the procedure for removal from office of an academic staff of the University laid down by section 15 of the University Act which empowers only the University Council to do so after an investigation of the allegation against the employee concerned by a joint panel of the members of the University Senate and Council.

It is clear from the provisions of section 5 of the University Act the material parts of which are reproduced above that the power to remove from office of an academic staff which the appellant was, is vested in he University Council. The power can be exercised only on fulfillment of certain conditions, to wit, the erring Officers must have been allowed to make representations to the council about the allegation against him; if the officer or three members of the council so request within the specified time there must be constituted a joint committee of the council and the senate to investigate the allegation with the opportunity of being given to the erring officer to defend himself. After deliberations on the allegation the final decision on the removal of the officer is with the council which must do so by ‘an instrument in writing signed on the directions of the Council’.

The procedure outlined above is a far cry from the procedure adopted in retiring the appellant from the service of the University by the Visitor who is not vested with the power to do so and who in doing so did not consult the University Council, the only competent authority that is vested with the power to retire or remove him from office. The result of the exercise is that whatever might be the misconduct of the appellant in relation to his appointment as a senior academic staff of the University the procedure adopted in retiring him from service is a serious violation of the conditions laid down by section 15of the University of Nigeria Act which, by operation of Law, are incorporated as part of the appellant’s conditions of service and which cannot be derogated from.

In this regard. University of Nigeria Teaching Hospital management Board v. Nnoli, supra, is a case in point. In interpreting the provision of sub-section 9(1) of the University Teaching Hospitals (Reconstitution Boards, etc) Decree No.10 of 1985, which is substantially similar to sub-section 15(1) of the university of Nigeria Act and, therefore, in pari materia. the Supreme Court, per Onu, J.S.C., expounded the principle, at pages 85 and 86, inter alia, as follows:

“Where a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person. property or office, such a procedure must be strictly followed.

The word ‘shall’ as used in sections 9(1) and 13 of Decree No.10 of 1985, I conceive, is mandatory and does not, in my view, permit of any discretion, variation or circumvention, of the clear procedure to be followed. See Chukwuka v. Ezulike. (1985) 5 NWLR (Pt.45) 892; Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356; Udo v. The State, (1988) 3 NWLR (Pt.82) 316, and Achineku v. Ishagba, (1988) 4 NWLR (Pt.89) 411”.

The upshot is that the retirement of the appellant as a senior academic staff of the University having been ordered by the Visitor of the University who was not vested with the power to do so it is ineffective and doing so in disregard of the procedure laid down by section 15 of the University of Nigeria Act is a fundamental breach of the appellant’s contract of employment with the University. On either score, the retirement of the appellant as a professor of physics in the service of the 3rd respondent is also invalid. Having earlier held also that the removal of the appellant as the Vice Chancellor of the University is invalid I grant the appellant’s two heads of relief and I hereby declare that the appellant’s removal as the Vice Chancellor of the University of Nigeria and his retirement as a professor of physics from service of the University ordered by a letter dated 18/1/85, Exhibit 6, are null and void and of no effect whatsoever.

The appellant also asked for orders that (a) his appointment as the Vice Chancellor of the University subsisted until the remaining terms or until it was lawfully terminated and (b) his appointment as a professor of physics in the University still subsists. The admission by the appellant that his second terms of office as the Vice Chancellor would ordinarily have expired by 31st December, 1986, makes that relief to be hard to accommodate and somehow impractical as the court will not make an order which is brutum fulmen. See Ekpenyong v. Nyong (1975) 2 SC 71,80-81. This is without prejudice to the appellant’s entitlement to any benefits or perquisites to which the holder of the office of the Vice Chancellor may be entitled for the remainder of the appellant’s second term of office from the time of his purported removal from office since the effect of the invalidity of the removal is that the appellant, in law, remained in office for the remainder of the second term as if he was never removed from that office.

But the second order sought is a different kettle of fish as a direct incident of career employment with statutory flavour within the meaning of that expression in Shitta-Bey v. Federal Public Service Commission, supra, at page 56; Federal Public Service Commission v. Laoye, supra. at page 139; and Imoloame v. WAEC., (1992) 11-12 SCNJ. (Pt.1) 121, 134-135; (1992) 9 NWLR (Pt.265) 303. Having declared null and void the appellant’s retirement from the service of the university it follows logically that he is entitled to be reinstated to his position for assimilation into the mainstream of the career from which he has been unlawfully dislodged.

Accordingly, it is hereby ordered that the appellant’s appointment as a professor of physics in the University of Nigeria subsists from 18/11/85, the date when he was purportedly retired from the service of the University, until he attains the age or retirement.

For the avoidance of doubt let me reiterate that in taking the stand to make findings from the evidence before the trial court, the overriding consideration is the history of this case which is punctuated by nauseating dawdling, shiftlessness and lack of empathy than is considered normal for dispensing justice. The action was filed on 31/10/86, over 13 years ago. After an adventure by the respondents to the Supreme Court with a stop-over in this court entroute to the apex court, all on interlocutory appeals, the case ran into bad weather when hearing again resumed at the trial court and the hearing had to be begun de novo. According to the uncontroverted affirmation of learned Senior Advocate for the appellant, the case came up before the learned trial Chief Judge on 51 occasions between 9/9/91 when he became seised of the matter and 5/5/97 when he delivered his judgment that he had no jurisdiction to entertain the action. Win or lose, such a protracted delay cannot but leave a litigant with a harrowing memory of the Judiciary as one pedestrian caste of the estate of the realm that is not accustomed to promptitude in a jet-age. From the stand-point of administering justice, the conduct of this case by the court below is an aberration from the traditional judicial precepts and should not be allowed to be a mirror of the legacy of the Judiciary of our time.

Looking at the other side or the coin the unyielding stand of the respondents conduced in no small measure to the tardiness that characterized the proceedings at the court below. Both on facts and stratagem the history of this appeal has an uncanny parallel with an unreported decision of this court in Ekundayo v. University of Ibadan, No. CA/I/86/94, delivered on 12/7/99, with a trail of empathy and non challance as the university rode roughshod over her former employee a spectacle which prompted me to observe as follows:

“For the respondent whose activities are directed by men with the resources of the society to play with it is one thing to pose for a fight to the finish with the appellant by repeated sponsored outings before the appeal courts in the land. It is a different matter for the hapless appellant who is on the receiving end without the wherewithal or with slender means in pursuit of justice. His feelings must be one of anxiety and disquietude which can be summed up by the epigram of a philosopher that ‘for a man in the paddock whose job is to sweep up manure the supreme terror is the possibility of a world without horses’.

…the respondent having spend over a decade testing the judicial water about her immunity under the Public Officers (Special Provisions) Act it cannot be the delight of anyone but herself to continue a perennial excursion to this court. The respondent has held the wrong end of the stick long enough to be cured of the myopia of not seeing the wood for the trees.

That observation captures my impression of the present appeal which I endorse to the respondents here with greater force as a reminder to the feebleness of human memory that recedes so soon as to be oblivious of the fact that the appellant belonged to a generation of pioneers who once played a part in the growth of the university.

However that may be, the appeal succeeds and it is allowed. The judgment of Ozobu, C. J., delivered on 5/5/97 is hereby set aside. In its place judgment is entered for the appellant declaring as null and void his removal from office of the Vice Chancellor of the University of Nigeria and his retirement as a professor of physics from the service of that University. It is ordered that the appellant shall be reinstated to his position as Professor of Physics until he attains the age of retirement. I award N5,000.00 costs against all the three respondents jointly and severally.

Appeal Allowed.

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Other Citations: (2000)LCN/0692(CA)