Professor S. O. Abdulraheem & Ors. V. Professor B. J. Olufeagba & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

This is another appeal against the judgment of Hon. Justice P. F. Olayiwola of the Federal High Court, Ilorin delivered on 16/7/05 in favour of the 42 of the plaintiffs in respect of all the heads of their claim.

The plaintiffs/respondents claimed against the defendants/appellants as follows:-

“1. A declaration that the defendants’ letter dated 22nd May, 2001 to the plaintiffs titled “cessation of agreement”, purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires, null and void and of no effect whatsoever.

2. A declaration that the plaintiffs are still in the service of the 3rd defendant.
3. A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to re-instate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the Pro-chancellor of the 4th defendant and the 1st defendant.
4. A declaration that the defendants are not entitled to, summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation and other related statutes.
5. A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that the plaintiffs are permanent am pensionable staffs of the University.
6. A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot over-ride the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
7. A declaration that the purported termination of the plaintiffs’ appointment is in the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
8. An order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letters to the plaintiffs in this regard.
9. An order compelling the defendants to comply with directive of the Federal Government through the National University Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
10. An order compelling the defendants to re-instate the plaintiffs in their posts in University of Ilorin with all their rights entitlements and other prerequisites of their offices and an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of the judgment and thenceforth.”

Pleadings were filed by both parties. The defendants thereafter filed a notice of preliminary objection on the 7/7/2002 as follows:-

An order of the Honourable Court setting the preliminary objection contained in paragraph 1 of the statement of defence for hearing and dismissing and/or striking out the case on the said grounds viz:-

1. Other court lacks the vires and/or jurisdiction to entertain the plaintiffs’ claim.
2. The case of the plaintiffs is caught by mis-joinder of action.
3. The suit of the plaintiffs disclose no reasonable cause of action or any cause of action at all.
4. The action of the plaintiffs is statute barred and therefore has to be dismissed.
5. The suit is a trade dispute between the employees and employers.

This motion was not decided as the lower court ordered that the conflict as to when the letters of cessation of appointments were received only be decided at the hearing when both parties have called their respective witnesses. This never happened. At the hearing the plaintiffs called two witnesses – PW 1- Prof. Jimi Olufengbe testified and some documents were tendered and admitted through him. After his testimony he was thoroughly cross-examined.

The 2nd witness testified as PW2, he is Prof. Taiwo Oloruntoba academic staff of the University of Ilorin.

The witness admitted that the failure of the defendants to reinstate the said lecturers (plaintiffs) was one of the issues that got to I.A.P. The defendants called equally two witnesses, namely; DW1 DW2. One Marnwa Eya Ogbonna (DW1) identified the letters of cessation of appointment exhibits 83 – 119. He testified that the appointments were properly brought to an end. The termination is by notice or salary in lieu of notice. He identified exhibits 136 referred to their provisions he then denied the plaintiffs were sacked for participating in national strike. He further testified that the employments were brought to an end for the plaintiffs’ failure to discharge their duties. He said that the issue was taken to I.A.P. because the plaintiffs were not at work.

DW2 one Titus Agboola Adeyemi testified to the effect that the vacancies created as a result of the cessation of appointments of the plaintiffs have been filled. He said that after the termination of the plaintiffs’ appointment the National ASUU tool, the matter to IAP, the IAP confirmed tile termination – Exhibit 38.

In view of what had happened in the sister case CA/1L/64/05 where I extensively reviewed the facts and evidence, I will not go into all details in this appeal.

Learned counsel to both parties thereafter addressed the lower court.

It is to be noted however that the lower court in a considered ruling dismissed the preliminary objection filed by the appellants.

The lower court delivered its judgment wherein it granted the plaintiffs claims.

The defendants being dissatisfied appealed to this court and filed a notice on 22/7/2005. In accordance with the rules of this court, both parties filed and exchanged their respective briefs of argument. The appellants in their brief formulated five issues for determination as follows:-

1. Whether the proceedings of the trial court is not a nullity in view of the death of two of the respondents during the pendency of the case and which death was to the courts knowledge which still refused to strike out the names of the deceased respondents.
2. Whether the trial court was not in error in ordering the re-instatement of 42 of the 44 respondents, when from available evidence their positions have been filled which a number of them were gainfully employed elsewhere.
3. Whether the trial court was right in holding that the termination of the respondents’ appointment was wrongful, illegal, null and void thereby invoking section 15 of the University of Ilorin Act.
4. Whether the trial court was right in ordering the payment of salaries and allowances of the respondents from February, 2001, till date of judgment and thereafter having regard to the applicable law’s and facts and circumstances of the case and in granting the other reliefs awarded to the respondents.
5. Whether the trial court was right in assuming jurisdiction to entertain the case of the respondents and grant their claims when their case was caught by estoppel.

The respondents in turn in their brief of argument formulated four issues for determination as follows:-

(i) Whether the learned trial Judge was right in holding that the plaintiffs/respondents’ appointments were terminated by the appellants on grounds of misconduct

(disciplinary grounds) without following due process as laid down by statute of the University of Ilorin that is, Unilorin Act, Cap. 455, Laws of the Federation, 1990 and exhibits 81 (the revised senior staff regulations of the University of Ilorin) and whether the learned trial Judge was right in declaring the termination of the respondents’ appointment by the appellants as being null and void and of no effect and setting same aside.

Grounds 3, 4 and 12 of the grounds of appeal.

(ii) Whether the death of the two of the plaintiffs (3rd and 29th plaintiffs) in the cause of the proceedings at the trial court is fatal to the plaintiffs case and whether the learned trial Judge was right in granting the relief for payment of accumulated salaries and allowances to the deceased plaintiffs up to the time of their death. Grounds 8 and 9 of the grounds of appeal.

(iii) Whether the learned trial Judge was right in holding that the plaintiffs’ suit was not caught by issue estoppel, and that an IAP award allude to by the appellants at the trial was non-existent having been set aside by the appropriate authorities – Grounds 5 and 10 of the grounds of appeal.

(iv) Whether the learned trial Judge was right in granting all the reliefs of the plaintiffs as per writ of summons and statement of claim (as amended). And whether the learned trial Judge was right in ordering the re-instatement of the plaintiffs back to their jobs at the University of Ilorin having regard to the general circumstances of this case. Grounds 2, 6, 7, 11 and 13 of the grounds of appeal”.

The appellants’ counsel in his argument submitted that being an action in personam, the respondents had a burden/duty to make necessary rectification after the death of the 3rd and 29th respondents so that the case may continue. This the respondents failed to do and its fatal to their case. Since the action was joint and initiated by some single originating process. He cited the case of:-

Ajayi v. Igbinoghene (2001) 15 NWLR (Pt. 735) 31 at 38.

On the 2nd issue, counsel submitted that given the peculiarity of this case being that there has been an intervening factor i.e. the vacancies have been filled up, the trial court was in manifest error to have ordered the re-instatement notwithstanding the fact that the appointment was said to be with statutory flavour. He cited the cases of-

(a) Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 at 436;

(b) Igbe v. Governor of Bendel State (1983) 1 S.C.L.R. 73/88.

The learned counsel distinguished the case of U.N. T.H.M.B. v. Nnoli (1994) 10 SCNJ 71/85; (1994) 8 NWLR (Pt. 363) 376 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 from the present case, as the position in those cases have not been filled.

On the 3rd issue, learned counsel referred to exhibits 180 – 217 (memoranda of appointment) and submitted that the view of the trial court exhibits are subject to the provisions of section 15 Unilorin Act, Cap. 452 is totally wrong. He submitted that there was nothing in the said statute or the regulations (exhibit 81) which precluded the respondents from contracting out these provisions of the Act and the staff regulations. A party, he submitted can waive all his personal legal rights. He relied on the case of Ariori v. Elemo (1983) 1 SCNLR 1 at 9. He therefore submitted that since the provisions contained in section 15 of the Act and the staff regulations are made for the special benefits of the respondents, the signing and acceptance of clauses 1 and 10 of the memoranda is more than evidence of renunciation or waiver of the provisions of section 15 of the Act. He cited this “Quilibet potest renunciate juri prose introducto” and the cases of- Mobil Producing (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1 at 37; Menakaya v. Menakaya (2001) 16NWLR (Pt. 738) 203 at 266. In addition, he submitted that since the termination is done in writing, it is wrong for the trial Judge to go outside the letters of termination. He relied on:-

Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589/626.

He further submitted that where the council exercises its undoubted power under section 15(3) of the Act to terminate an employment there is no need to fall back on or take the steps set in section 15(1).

On the 4th issue, learned counsel submitted that the order for reinstatement and payment of salaries and allowances was wrongfully made as it was given in clear violation of the provisions of section 42(1)(a) of the Trade Disputes Act, Cap. 432 of the Laws of the Federation, 1990, particularly as the respondents willfully withdrew their services from the appellants. He further submitted that the letters of cessation of appointment were intra vires the appellants by virtue of section 3(1) of the Unilorin Act, Cap. 455 as they can engage and disengage the respondents. He who has the power to hire has the power to fire – Union Bank of Nig. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 671.

Notwithstanding the statutory nature of the employment, counsel further submitted, the employment could be brought to an end in the mode contemplated by the parties. He cites David Osuagwu v. A.-G., Anambra (1993) 4 NWLR (Pt. 285) 13 at 40.

On exhibit 122, learned counsel submitted that it has not been established why this trial should enforce compliance with the letter.

On the 5th issue, the learned counsel submitted that the holding of the trial court that the parties and issues before that court are different from the ones before the IAP are misconceived as the trial court glossed over the fact that the appellants are privies the FGN while the respondents are privies ASUU. He cited the case of Balogun v. Adejobi (1995) 1 SCNJ 242; (1995) 2 NWLR (Pt. 376) 131 at 264. Again on this point, learned counsel submitted that the trial court’s interpretation of section 12(3) of the Trade Dispute Act and the holding that the award was withdrawn is not a good ground to hold that the award is non-existent. Section 13(1) of the Trade Disputes Act envisages the filing of an appeal against the award but none was done in this case. He therefore concluded that since IAP had made an award and made pronouncements that the termination of the respondents’ appointment was justified, that issue was resolved and could not be re-opened by any other tribunal, including the lower court. The respondents’ claims were therefore caught by the doctrine of issue estoppel. He relied on the case of Fadiora v. Gbadebo (1978) 3 SC 219 at 155 and urged this court to allow the appeal.

The respondents in their brief of argument submitted on issue No. 1 thus:

“It is humbly submitted that the termination of the respondents’ appointments by the appellants was for misconduct (that is on disciplinary grounds) and the appellants failed to observe and/or follow due process, which is mandatory for the caliber of staff involved. As lecturers of the University, there is no dispute about the fact that respondents’ appointment are protected by statute, that is section 15, Unilorin Act, Cap. 455, Laws of the Federation of 1990 and Chapter 8 of exhibit 81 (the Revised Senior Staff Regulations) made pursuant to the said Act of the University and applicable to the respondents’ employment with the University.

It is further humbly submitted that the learned trial Judge properly evaluated the oral and documentary evidence proffered by the parties in this case before coming to the conclusion that contrary to the claim of the appellants, the appointments of the respondents were terminated by the appellants without the appellants observing and/or following the process and procedure for fair hearing for the respondents as provided for in S. 15(1) of Unilorin Act, exhibit 81 and even the Constitution of the Federal Republic of Nigeria, 1999.

My Lords it is humbly submitted that from the foregoing on issue one, the learned trial Judge was right in holding that the appellants have no power and/or right under Unilorin Act and exhibit 81 to summarily and arbitrarily terminate the respondents’ appointments.

And that the learned trial Judge was also right in holding that from the evidence before the court, the appellants, terminated the respondents’ appointment without giving the respondents any hearing at all in contravention of the provisions of S. 15 of University of Ilorin Act, Chapter 8 of exhibit 81 and the Constitution of the Federal Republic of Nigeria, 1999.

Your Lordships are urged to answer our issue one in the affirmative.

Issue II.

My Lords, the appellants have made a “heavy weather” on the death of some of the plaintiffs at the trial court before judgment was given. It is true my Lords that the 29th plaintiff died in June 2004 and at page 266 of the record of proceedings the appellants” counsel made it an issue. The 3rd plaintiff again died on 8th January, 2005. From the way the appellants have strenuously canvassed the issue of the death of the plaintiffs, the impression ought not to be given that the appellants are pleased or happy with the death of the plaintiffs.

Unfortunately not all the remaining plaintiff who were fortunate to hear the judgment of the Federal High Court are still alive up till today. This is because Professor A. E. Annor – the 9th plaintiff died about month after the said judgment.

Be that as it may, it is humbly submitted that the death of the said plaintiffs did not adversely affect the plaintiffs’ case at the trial court. The appellants seem to be saying in their (brief of argument, though not directly and clearly) that because of the death of 3rd and 29th plaintiffs during trial of the case at the trial court, the case should have ended and should not have been continued. The appellants’ contention is erroneous and misleading and your Lordships are urged to reject it.

Your Lordships are urged to hold that the death of 3rd and 29th plaintiffs did not invalidate the case of the plaintiffs and the order the learned trial Judge made in his judgment concerning the deceaseds’ entitlements is in order. Your Lordships are urged to answer our issue two also in the affirmative.

Issue III.

My Lords, the appellants have also raised the matter of ‘issue estoppel’ in their grounds 5 and 10 of the grounds of appeal of the original notice of appeal. We have formulated our issue three on the said grounds. And we submit most humbly that the materials, exhibits and evidence placed before the trial clearly show that ‘issue estoppel’ cannot be sustained against the plaintiffs’ (respondents’) case by the appellants.

The learned trial Judge had no difficulty in holding in paragraph 7 of his judgment on page 379 of the record that: –

‘It is therefore crystal clear that the issues and parties are different from the parties before this Honourable Court in respect of this matter.

Furthermore, the award has been withdrawn.

The foregoing, my Lords with due respect, sums up the true position of this case and reflects the correct position of the law. It puts an effective end to the baseless claim of the appellants that respondents’ case is caught by issue estoppel.

Your Lordships are most humbly urged to answer our issue three in the affirmative also.

Issue IV.

In arguing our issue four, I seek your Lordships’ leave to adopt argument on issue one, as part of the argument for issue four also. And in addition to argue further that the learned trial Judge having properly and justifiably nullified and set aside the termination of plaintiffs/respondents’ appointments was right in granting all their reliefs including the order for their reinstatement.

It is humbly submitted that having properly nullified and set aside the appellants’ termination of the respondents appointments, the learned trial Judge was right in granting the reliefs of the respondents as stated in their writ of summons and statement of claim at pages 275 – 282 of the record of proceedings.

On the whole, Your Lordships are urged to dismiss this appeal and affirm the judgment of the Federal High Court on the grounds that:

(a) The learned trial Judge was right in holding that by virtue of the provisions of S.15 of the University of Ilorin Act, Cap. 455, Laws of the Federation of 1990 and Chapter 8 exhibit 81 (the Revised Senior Staff Regulations) governing the condition of the service of the respondents with the appellants, the respondents’ appointments have statutory flavour. And this being the case, the appellants have no right or power to summarily and arbitrarily terminate the respondents’ appointments. The letters of employment and memoranda which the appellants relied on to sack the respondents are inferior and subject to the provisions of the statutes governing the services of the respondents with the University. The learned trial Judge was therefore right in declaring that the termination of the respondents’ appointment by the appellants as being null and void and of no effect having been done in utter disregard to the provisions of the statute of the University and the fact that the appellants sacked the respondents for misconduct (disciplinary grounds) without giving the respondents fair hearing.

(b) The learned trial Judge was right in granting the reliefs of the plaintiffs and specifically making an order in his judgment that the 3rd and 29th plaintiffs who died before the judgment was delivered were entitled to payment of their accumulated salaries and allowances up till the time of their death and not beyond. And that the death of the said plaintiffs was not fatal to the plaintiffs’ case in any way since the suit could proceed/continue with the surviving plaintiffs.

(c) The plaintiffs’ suit was not caught by issue estoppel as alleged by the appellants because the matter at the IAP which appellants relied upon was completely different from the plaintiffs’ case. The parties and the subject matter are not the same at all. There was no valid and existing award of the IAP since the purported award, which the appellants alluded to, had been cancelled and withdrawn by the Minister of Labour as he has power to do by virtue of S. 12 of the Trade Dispute Act, Cap. 433, Laws of the Federation of 1990. And that by section 13(4) of the same Act an award cannot be valid unless it is confirmed by the Minister and gazetted. Nothing of the sort was done by the Minister instead there is evidence to the effect that the Minister never confirmed any award and never gazetted any. There is therefore absolutely no basis for the appellants’ claim that plaintiffs’ case is caught by issue estoppel. It is trite law that when the decision or judgment of a court is set aside by a higher court that is the end of the judgment. The purported award alluded to by appellants was totally non-existent.

(d) The trial court properly nullified the termination of plaintiffs’ appointments by the appellants’ and the court was right in granting all the reliefs of the plaintiffs including order for reinstatement. The appellants have no right to present the court with a fait accompli by purporting to “replace” the plaintiffs while the suit challenging their sack is pending in court. Besides, the appellants chose to deliberately ignore the directive of the Federal Government since June 2001 as shown in exhibit 122 to reinstate the plaintiffs/respondents back to their jobs. The evidence on record at the trial court showed that the appellants’ claim of ‘replacing’ the plaintiffs is a farce. The plaintiffs’ right to their jobs is analogous to property right and the appellants have no right to frustrate the power of the court to order reinstatement of the plaintiffs back to their jobs in the University”.

The appellants filed a reply brief in which it was submitted that the issue of waiver is in the nature of the preliminary objection for which Order 3 rule 15(1) of Court of Appeal Rules is mandatory and without filing any notice of preliminary objection, the respondents could not raise it in their brief as they did. He cited the case of Odigie v. Nigeria Paper Mill Ltd. (1995) 8 NWLR (Pt. 211) 338.

On the question of inadmissibility of exhibit D.38 he submitted that the document was admitted with the consent of both parties. On the question of replacement of the plaintiffs, counsel submitted that the issue was pleaded.

These are the submissions of both learned counsel to the parties. I have earlier set out the evidence adduced by the parties’ witnesses in order to enable me appreciate the issues involved in this highly important appeal.

I have read and digested the stance taken by the learned trial Judge especially on page 382 of the record. It is clear from the record though, that two of the plaintiffs were reported dead during the pendency of the matter at the trial court. The trial court allowed an adjournment to enable the respondents take necessary steps to cause a substitution to be made but also that was not forthcoming. It is clear in law that the cause of action does not survive any of them.

This court has already taken a decision in this type of claim. It was held in Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407/422 that “a personal right of action dies with the person – “actio personalis

moritio cum persona”. The respondents were given the opportunity to either make a substitution or withdraw the case. Failure to do one of the two becomes fatal to their case. I hold different view based on the authorities which were cited earlier on that the whole action in the lower court was rendered incompetent and all the orders made by the lower court cannot be possibly enforced. The 1st issue treated by the appellants is resolved in their favour.

On the second issue formulated by the appellants and argued on pages 13 – 17 of their brief, I am also unable to agree with learned Judge of the lower court.

The approach of learned Judge is that the respondents’ appointment were terminated by the appellants under section 15(1) of the University of Ilorin Act. I have already discussed the argument and submissions of both counsel under this issue.

My understanding is that the “cessation” was effected under section 15(3) of the University of Ilorin Act, Cap. 455. The issue is the question of “waiver” which is a right to any person. The respondent had waived any rights they may have under the provisions of section 15 Unilorin Act by signing the memorandum of appointment. Since the respondents decided to join in the ASUU strike contrary to what they have both signed with the University Authority, they should have themselves to blame. There is evidence that all other workers were on their duty posts at the material period working but the respondents refused to work. It is also in evidence as I stated in this judgment that the respondents were invited to come to a meeting with the authority to iron out things but the respondents turned down the invitation for the reason best known to them. One, they say, can lead a Horse to a river but cannot force it to drink water. Their attitude (i.e. respondents) cannot find support in law.

I refer to the Supreme Court’s case of Scott-Enakpor v. Ikaibe (1979) 1 S.C. p. 6; Mankanu v. Salman (2005) 4 NWLR (Pt. 915) 270/301; and 653/673. I think I will agree with the learned counsel to the appellants in this appeal that in terminating the appointment of the respondents under S. 15(3) of the Unilorin Act the University has done its possible best to reasonably comply with the subsection 15 of that Act – Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) p. 290/302 and Esiaga v. Unical (2004) 7 NWLR (Pt. 872) 366/387. I agree that the respondents’ employment has statutory flavour with permanent and pensionable rights and their appointments can only be terminated in accordance with the provisions of a statute – Olaniyan v. Unilag supra and Eperokun v. Unilag supra.

However where the provisions of an act appeared to be slightly different from the others it is not necessary to make use of those cases decided differently. The provisions of S. 15(3) of the Unilorin Act is a complete departure from section 15(1) of the Unilorin Act supra which is in pari materia with that of Lagos University Act. I hold that under S. 15(3) of the University of Ilorin Act, Cap. 455, the appellants’ action in terminating the employments of the respondents was done within the dictate of that subsection and it is in order.

The cases therefore of Olaniyan v. University of Lagos supra, Teaching Hospital v. Nnoli supra, Eperokun v. University of Lagos supra are different i.e. the facts and laws are different and distinguishable. In those cases supra and rest of them, there was no evidence that the positions/vacancies of the removed employees, were filled at any time prior to the making of the order of reinstatement by the lower court. In this particular case, I agree with the learned counsel for the appellants that there is a credible evidence before the lower court that vacancies created by the exit of the respondents had been filled so that the 3rd appellant, University of Ilorin, will not fail in the realization of its objectives as set out in section 2( 1)(a) – (c) of Cap. 455 of the Uni versity of Ilorin Act. It is also evident and the lower court cannot claim ignorance that some of the respondents have obtained and secured gainful employments elsewhere during the pendency of the matter before the lower court.

In the circumstances, how can the lower court lawfully and correctly too make such orders like reinstatements and to receive their salaries and other allowances. It will sound near impossible. Where can the University source such type of colossal amount? Tell me. It would amount to ordering an impossibility. One cannot talk about contempt of the lower court by replacing the dismissed workers. Otherwise, i.e. if the University did not promptly fill in the required lecturers, the University would have collapsed by now. It will then be failing in their responsibility to provide good services to the society and the students. I completely agree with the legal maxim that “a court does not act in vain and will not make an order that is incapable of being carried out. Human touching should have been employed. The employees decided voluntarily to go about doing what they did knowing fully aware what the consequences were. They do not deserve this unbridled show of sympathy. See Olatunbosun v. NISER C Council (1986) 3 NWLR (Pt. 29) 435: See also Isievwore v. NEPA supra at p. 436. This case does not fall on any exception to the general rule of re-instatement and or specific performance of a contract of service. With these different provisions of the Universities of Lagos and that of Unilorin in S. 15(3) thereof.

This particular arrangement which is governed by agreement signed by both parties and not governed under S. 15(1) of ‘the University of Ilorin Act, their removal by way of termination, cessation or dismissal must be in the mode or form agreed upon by both the appellants and the respondents. The appellants are only liable to damages, assuming that the dismissal; was wrongful which even was not agreed. See the cases of Isievwore v. NEPA supra; at p. 434. Had the respondents proved that the dismissal was wrongful then I will treat the matter as such and perhaps consider awarding damages to them and certainly not re-instatement. See also Chukwumah v. Shell Petroleum Co. (1993) 4 NWLR (Pt. 289) 512 and U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 649.

The Supreme Court, let us hold the bull by the horn, held against reinstating workers like the respondents even though their employment has statutory flavour and who have been removed in gross violation of the relevant provisions of the statute e.g. S. 15(1) of the Unilorin Act. This will happen where there are supervening events which made it impossible for the employee to return to his post. See Igbe v. Gov., Bendel State supra and Isievwore v. NEPA supra at P. 436 paragraphs F – H per Ejiwunmi, JSC.

I must re-state that a party can waive all his personal legal rights, the fact that the respondents willingly signed and accepted clauses 1 and 10 of the memorandum of the terms of appointment. This shows that they waived the provisions of section 15 of the Act and I so hold. The decision of the lower court that the termination was wrongful, illegal, null and void could not hold water same is set aside. Having considered exhibits 89 and 119 and section 15(3) of the said Act, I hold that the “cessation” of the respondents were properly done under S. 15(3) of the Act and there was no necessity for looking at S. 15(1) of the same Act – Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290/302; and Esiaga v. University of Calabar (2004) 7 NWLR (Pt. 872) 366/387. The issue under consideration, i.e. No.3, is hereby resolved in favour of the appellant.

On issue No.4, I have already held that the respondents themselves admitted being on a strike action until their appointments were terminated. See the evidence of PW2 at page 211 of the record.

Having closely considered the provisions of S. 42(1)(a) of the Trade Dispute, Cap. 432, LFN, 1990 I hold that the respondents are not entitled to payment of salaries and allowances for the period stated.

It was inconsiderate for the lower court to award them such salaries and allowances in fact, it is illegal in fact it is inequitable for the lower court to have ordered for the payment of the respondents after withholding their services from the 3rd appellant. Equity does not do inequity – Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625/640. The order for re-instatement cannot possibly be automatic or as a matter of course on the ground that “a termination is unlawful” this cannot be the law. Where the employees were removed from offices it may be right to say that they were entitled to the reliefs because the invalid removal prevented them from performing their lawful duties – Eperokin v. Unilag supra; and Olaniyan v. Unilag supra and UNTH v. Nnoli supra. These cases were correctly decided and I am bound by the decisions reached thereat. In the case at hand, these case could be distinguished because it was their voluntary withholding of services by the respondents that caused the termination of their appointments. I have considered the submissions of the respondents as discussed earlier and found that all the ten reliefs dished out by the trial court were ordered in error. The fourth issue is also resolved in favour of the appellants herein.

On issue No.5, I have analysed same and I have already stated that the subject matter of the case had been agitated and decided by a competent court i.e. the Industrial Arbitration Panel – which resolved that the termination was justified, legal and lawful. The matter before the court should have been decided elsewhere. The issue is also resolved in favour of the appellants.

Having resolved all the issues canvassed in this appeal against the respondents and in favour of the appellants I hold that the appeal is meritorious. Same is hereby allowed. The decision of the lower court in its entirety is hereby set aside. The claims of the respondents in the lower court are hereby dismissed.

No order as to costs.

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Other Citations: (2006)LCN/2049(CA)