Professor Shuib Oba Abdul-raheem & Ors. V. Dr. Taiwo Oloruntoba-oju (2006)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The respondents, who were the plaintiffs in the court below, claimed against the defendants/appellants in their joint amended statement of claim as follows:-
“(a) A declaration that the defendants’ letter dated 15th May, 2001 to the plaintiffs titled “cessation of appointment” purporting to terminate the plaintiffs’ appointment with the 3rd defendant is ultra-vires null and void and of no effect whatsoever.
(b) A declaration that the plaintiffs are still in the service of the 3rd defendant.
(c) A declaration that the defendants are bound to comply with the directive of the Federal Government of Nigeria to reinstate the plaintiffs as contained in the letter of National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to pro-chancellor of the 4th defendant, and the 1st defendant.
(d) A declaration that the defendants are not entitled to summarily terminate the plaintiffs’ appointment without complying with the provisions of the University of Ilorin Act, Cap. 455, Laws of the Federal and other relevant statutory as to discipline.
(e) A declaration that the purported termination of the plaintiffs’ appointment by the defendants under the guise of “cessation of appointment” or under any guise whatsoever is contrary to the provisions of the Pensions Act of Nigeria in that plaintiffs are permanent and pensionable staff of the University.
(f) A declaration that the contents of any purported letter of appointment or memorandum purportedly signed by the plaintiffs cannot override the provisions of University of Ilorin Act, Cap. 455, Laws of the Federation, 1990 regarding the nature, tenure and discipline of staff of Unilorin and all other matters connected or pertaining thereto.
(g) A declaration that the purported termination of the plaintiffs’ appointment by the defendants negates the fundamental rights provisions of the Constitution of the Federal Republic of Nigeria, 1999.
(h) An order setting aside the purported termination of plaintiffs’ appointment and nullifying the defendants’ letter to the plaintiffs in that regard.
(i) An order compelling the defendants to comply with directive of the Federal Government through the National Universities Commission dated 29th June, 2001 with reference NUC/ES/261 to the defendants to reinstate the plaintiffs.
(J) An order compelling the defendants to reinstate and/or restore the plaintiffs to their posts as lecturers in University of Ilorin with all their rights, entitlements and other perquisites of their offices. And an order compelling the defendants to pay to the plaintiffs all their salaries and allowances from February 2001 till the day of judgment and thenceforth.”
The defendants now appellants, by a motion on notice dated 27/4/2002, applied for extension of time to file their statement of defence. The motion was heard and granted on 2/5/2002. The said statement was again amended on 17/5/2003. In reply to the statement of defence dated 13/5/2002, on 2/7/2002, the defendants/appellants filed a motion on notice, praying the lower Court i.e. the Federal High Court, Ilorin, for the following:
“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 grounds viz.:
(i) The case of the plaintiff is caught by mis-joinder of parties and misjoinder of causes of action.
(ii) The suit of the plaintiffs disclose no reasonable cause of action or any cause of action at all.
(iii) The action of the plaintiffs is statute-barred and therefore liable to be dismissed.
(iv) This court is not the appropriate forum for the institution of this case as it is a trade dispute between employees and employers.
(v) The court lacks the vires and/or jurisdiction to entertain the plaintiffs’ claim as presently constituted. ”
This motion was heard on 2/4/2003 and on 19/5/2003 the learned trial Judge dismissed same. In conclusion, the trial Judge held thus:
” … I therefore reject the contention on behalf of the applicants that this suit is based on trade disputes in respect of which this court has no jurisdiction. In respect of the 2nd leg of this objection that the suit is statute barred,
both sides agreed that the termination was on 15/5 and that this suit was filed on 14/8. I, therefore have no difficulty holding that it has been filed within the 3 months stipulated under the Public Officers Protection Act, Cap. 439, LFN, 1990. There it is trite that the months stipulated in Cap. 359 means calendar months. See the case Kadiri v. Kogi State Government & 3 Ors. supra.
The respondents have also claimed that they did not receive the letters of termination until June 2001.
This boils down to the fact that court has an investigation to make as to when the letters of termination were received. This could only come out when evidence is had (sic) in court by both sides, it is only then that court can determine whether the time stipulation (sic) in the Public Officers Act would be applicable to this matter. The contention that the suit is statute-barred is therefore rejected. In the whole, this application for reasons adduced in the foregoing fails and is dismissed accordingly without any order as to costs”.
See page 61 of the record of proceedings.
The case therefore was adjourned to 24/9/2003 for definite hearing. However, on the 14/11/2003, the defendants now appellants applied to amend the amended statement of defence, the application was granted on the 10/12/2003, and the case adjourned to 29/1/2004 for definite hearing. As a result of this latest amendment, the respondents/plaintiffs also amended the reply to the statement of defence. The amended reply to the statement of defence was dated 17/12/2003. It is to be noted that the defendants again amended their further amended statement of defence, which application was granted on 5/6/2004 which again necessitated the filing of a reply to 2nd further amended statement of defence dated 18/6/2004.
The plaintiffs called Dr. Taiwo Oloruntoba-Oju as their sole witness. He is a senior lecturer at the Department of Modern Languages; the other plaintiffs are also members of the Academic Staff of the University but are sacked. He has been in the University for 17 years, 2nd plaintiff has worked for 20 years, 3rd plaintiff for 12 years, 4th plaintiff 12 years and 5th plaintiff 11 years. Certified copies of the letters of appointment tendered as exhibits 6-10. The employment is permanent and pensionable and the retirement age is 65 years. He stated that none of them has attained up to 50 years.
The relationship between them and the defendants are the condition of service for senior staff in the University Act. The revised regulations governing the conditions of service of senior staff of the University dated 24/3/2004 was admitted as exhibit 11.
No letter was delivered to them on the dates written on the letters.
He stated that they were sacked without any reason. No query was given to us and no hearing was afforded us. The letters of sack dated 15/5/2001 were admitted as exhibits 12 – 16. They received the letters in June 2001, no letter was delivered to them on the dates written on the letters.
He stated further that they were expected to be told the reasons for terminating their appointments. He denied that they ever disrupted examination in the University of Ilorin, he said that he read the news about the disruption of examination in the University in a bulletin of 1l/0512001 which was tendered as exhibit 17. The witness stated that they were not taken through any process at all, no query was given to them and they were not taken before any governing Council.
By regulations of Chapter 8 they should be afforded fair hearing, notice of allegation should be given to them and allowed to defend themselves before the Council. The witness was shocked that they were sacked by the Governing Council meeting of 15/5/2001 tendered as exhibit 20.
Re stated(Sic) that they were treated this way because they were members of ASUU. The witness is the Chairman, the 2nd plaintiff is the Secretary, 3rd plaintiff the Treasurer, 4th plaintiff the Assistant Secretary and 5th plaintiff the coordinating Secretary of the Executive. And as the Executive members, they were responsible for labour matters on the campus. They joined the National ASUU to press for better conditions after writing to the University authority, and it was during the strike action that they were sacked. During this strike, the Federal Government of Nigeria and ASUU went into negotiation on improving the University system. This negotiation led to improved conditions of service. A Professor was earning N60,000.00 before he had an increase to N 100,000.00. The Federal Government of Nigeria (FGN) asked that they be re-instated; the letter of the National University Commission to that effect was tendered as exhibit 21. He stated that the defendants could not terminate their appointments summarily.
Under cross-examination, the witnesses stated that as at 15/5/2001 they were staff of the University. He denied having the knowledge of the termination on the 15/5/2001 but long thereafter.
He admitted that exhibit 15 was the only letter of cessation addressed to him but he was aware of other documents. He admitted that the University did not state any reason for the cessation of appointment but there were advertisement in radio, television, newspapers and minutes of Council where they stated the reasons. He agreed signing memo as to terms of his employment like other plaintiffs. The memo of employment was admitted as exhibit 29. He further stated that the University gives notice in case of lawful termination because an issue between the F.G.N. and ASUU, and it eventually got to the Industrial Arbitration Panel. He attended the sittings of the panel in Lagos until the panel concluded their sittings. He denied knowing whether any award was made by the panel as nothing has been communicated to them. He also admitted under cross-examination, that it was the Governing Council that employed and it was it also that terminated the employment.
The defendants/appellants in turn called one witness, namely, Mr. Maruf Eya Ogbonya who is the Chief Executive Officer administration in the Governing Council office. He knows the plaintiffs, they are former staff of the University. Some times in May 2001, the appointment of these plaintiffs were brought to an end.
He identified exhibits 12 – 16 as the letters of termination. The appointments were terminated in accordance with the rules of the Institution. He testified that exhibits 12 – 16 were delivered to the plaintiffs, and that they were delivered on 15/5/2001. He identified exhibits 28 and 29 as the memo of appointment signed by the plaintiffs. This witness tendered the memo of appointment of the 4th plaintiff as exhibit DW1. He stated that when an employee is on temporary appointment. there would be no memo of appointment attached to the letter but when the appointment is regularized, the letter of appointment is accompanied by a memo of appointment.
He stated that the plaintiffs’ appointment were terminated in accordance with the memo of appointment and not on alleged disruption of examination in one hall; and not also as a result of the participation in ASUU strike. He was shown exhibit 21 on directive from N.U.C. to recall sacked staff, the N.U.C. has not sanctioned the University for not recalling the sacked lecturers, he further stated.
He again said that National ASUU took the N.U.C. to Industrial Arbitration Panel. The panel upheld the action taken by the Universities and that there is no appeal against the decision of the panel. As processes filed before the panel, he tendered the letter from the Minister of Labour and Productivity dated 20/5/2003 to Chairman Industrial Arbitration Panel on trade disputes as exhibit DW2, and the memorandum of 2nd party before the panel dated 24/6/2003 as exhibit 3, 2nd party’s brief of argument was admitted as exhibit DW4, the written address of the 1st party also was admitted as exhibit D5.
Under cross-examination, he testified that the employer or employee can determine the employment, and the employments were terminated on the strength of memo of appointment. He said that he was not aware whether the plaintiffs were arraigned before the court for disruption of examination. He stated that the plaintiffs were not sacked for going on strike or for committing any offence. He further stated that by the provisions of exhibit 11, if a staff is to be sacked for misconduct, he must be taken through disciplinary procedure.
He stated that the parties before the Industrial Arbitration Panel were ASUU and NUC and that it was the FGN that took National ASUU to Industrial Arbitration Panel (I.A.P), and that University of Ilorin was not a patty and the plaintiffs were also not patties before the IAP.
The letter of withdrawal of award of the Arbitration Panel was tendered as exhibit DW7. He agreed that the plaintiffs were not on temporary appointment.
This is the case of the parties before the lower court. I have attempted to extensively set out the facts and evidence of this case in order to enable and empower me to appreciate the facts involved.
The learned counsel to the parties addressed the trial Judge respectfully and on the 2617/2005 the learned trial Judge found in favour of the plaintiffs and granted all their claims. The learned trial Judge concluded, on page 244 of the record of proceedings, as follows:
“In the light of the above, it is my decision that the plaintiffs are entitled to the reliefs asked for in paragraph 25 clauses a – j.
The defendants are also hereby ordered to re-instate and/or restore the plaintiffs to their posts as lecturers in the University of Ilorin with all their rights, entitlements and other perquisites of their offices. The defendants are also hereby ordered to pay to the plaintiffs all their salaries and allowances from February 2001 till this day of judgment and thenceforth. This is my decision.”
The defendants, being dissatisfied with the above decision, appealed to this court by filing their notice of appeal dated 27/7/2005. In compliance with our rules both parties filed their briefs of argument. The appellants also filed a reply brief. The appellants in their main brief dated 17/2/2006 formulated three (3) issues for our determination of this appeal as follows:-
“1. Whether the learned trial Judge was not wrong when he held that the Federal High Court can entertain the case of the respondents when it was apparent from the statement of claim that, the case of the plaintiffs is rooted on industrial action and failure to abide by collective agreement between the Federal Government and Academic Staff Union of Universities (ASUU) Grounds one and two.
- Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim – Grounds 1,2, 3,5 and 6.
- Whether the case of the respondents was not caught by issue estoppel having regard to the decision and/or award delivered by the Industrial Arbitration Panel on the same subject matter.”- Grounds 4 and 7.
The respondents in turn, filed their brief of argument on 22/3/2006 and distilled four (4) issues from the grounds of appeal filed. I reproduce them thus:
- Whether the learned trial Judge was right in holding that the trial court had jurisdiction to entertain the plaintiffs/respondents’ case. Grounds 1 & 2 of the additional grounds of appeal.
- Whether the learned trial Judge was right in holding that the appellants were wrong in terminating the plaintiffs’ /respondents’ appointments (which appointments are of statutory nature) without giving reasons in the letters of termination – exhibits 12 – 16, when situations and circumstances disclosed in the exhibits tendered by the respondents at the trial clearly show that the respondents’ appointments were terminated for misconduct without the respondents being taken through due process as required by statute (s) that is S. 15 of University of Ilorin Act and exhibit 11. Grounds 2 & 3 of the original grounds of appeal.
- Whether the learned trial Judge was right in holding that the plaintiffs’ /respondents’ suit not caught by issue estoppel and that there was no valid award by the Industrial Arbitration Panel that could adversely affect the plaintiffs’ /respondents’ case in any way whatever. Grounds 4 & 7 of the original grounds of appeal.
- Whether the learned trial Judge was right in nullifying and setting aside the termination and granting all their reliefs including the order for their reinstatement to their jobs and payment of their accumulated salaries and allowances. Grounds 1, 5 & 6 of the original grounds of appeal.
The respondents, My Lords, in their brief raised a preliminary objection wherein they urged this court to strike out grounds 1,5 and 6 of the notice of appeal, as they were not covered by the issues for determination formulated by the appellants. The learned counsel to the respondents submitted that the said grounds 1, 5 and 6 are F liable to be struck out. He relied on the cases of. Morakinyo v. Adesoyero (1995) 7 NWLR (Pt. 409), 602; Jibrin v. Saba (2004) All FWLR (Pt. 220) p. 1319 paras. B-C; (2004) 16 NWLR (Pt. 899) 243. Khalil v. Yar’Adua (2004) All FWLR (Pt. 225) 112 at 138; (2003) 16 NWLR (Pt. 847) 446.
The appellants in their reply brief submitted that the objection was unfounded. Issue No.2 formulated by the appellants was referred to and that same has covered grounds 1,5 and 6 complained about.
The grounds of appeal being attacked, without their particulars are herewith reproduced below:-
“1. The trial court erred in law in ordering are-instatement of the plaintiffs back to the employment of the 3rd defendant when from the evidence adduced there had been intervening factors to inhibit reinstatement.
- The trial court erred in law when he ordered the payment of the plaintiffs’ salaries and allowances from February, 2001 to date judgment when from the material available before the court the plaintiffs were not entitled.
- The court erred in law in awarding the reliefs granted to the plaintiffs when they did not establish their entitlement to the reliefs so awarded.”
It is worthy of note to mention that all these grounds of appeal challenged the claims of the respondents that were granted by the trial court, and these claims were parts of the reliefs set out in the respondents’ statement of claim. I therefore have no difficulty in coming to the conclusion that issue No.2 formulated by the appellants covered all the issues raised in grounds 1, 5 and 6. I have earlier set out the issues formulated by the parties in this judgment, however for the sake of clarity. I will reproduce issue No.2 formulated by the appellants thus:
“2. Whether the learned trial Judge was right in his finding that the termination of appointment of the respondents was wrongful and thereby granted all the reliefs adumbrated in their statement of claim.”
(Italics mine for emphasis).
While I agree with the respondents’ counsel on the submission that when a ground of appeal is not covered by the issues formulated, that ground is said to be abandoned and is liable to be struck out.
Likewise an issue for determination derives its potency from the ground of appeal, when an issue for determination does not relate to any of the grounds of appeal filed the said issue is said to be incompetent and is liable to be struck out. See Jibrin v. Saba (2004) All FWR (Pt. 220) 1319 or (2004) 16 NWLR (Pt. 899) 243.
“”. By the same token ground of appeal No. (1) to which the issue is related is also struck out.
A cardinal principle of law is that an issue must be formulated in respect of a ground of appeal, and an argument canvassed therefore, but where no issue is raised in respect of the ground of appeal, the ground of appeal must be struck out.” Per Mukhtar, JCA as she then was at p.255.
However, the position in the appeal at hand is different. The grounds of appeal (1,5 and 6) complained of are clearly covered by issue NO.2 formulated by the appellants. The preliminary objection is unfounded and mis-conceived. Same is hereby dismissed.
In the determination of the appeal proper, I prefer the issues formulated by the appellants in their briefs of argument and I adopt same.
Issue No. 1
Learned counsel to the appellants submitted that in the determination of whether the court is vested with jurisdiction to entertain a particular matter the court will only consider the writ of summons and the statement of claim. He referred to the case of:
(a) Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549;
Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393 at 404.
Learned counsel again referred to paragraphs 9, 10, 11, 12, 13, 14,15,16 and 17 of the amended statement of claim and submitted that the kernel of the respondents’ case was the alleged termination of their appointment by the appellants as a result of their participation in a national strike of ASUU, the contention being that the termination of the appointment was a flagrant violation of the agreement signed between the Negotiation Team of the Federal Government of Nigeria – FGN – and the officials of ASUU. The trial Judge in this case, according to the appellants, only considered the reliefs endorsed in the writ of summons and the amended statement of claim, without considering the averments contained in the amended statement of claim. He cited the case of Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295 at 312. According to the learned counsel, if the trial court had considered the paragraphs of the amended statement of claim referred to, he would have discovered that the respondents’ case borders on trade disputes. He referred to section 47(1) of the Trade Dispute Act (Cap. 432) Laws of the Federation of Nigeria, 1990, and therefore concluded that the only court with exclusive jurisdiction to determine any cause bordering trade dispute is the National Industrial Court, as provided in section 19(1) of the Trade Dispute Act. He therefore submitted that where jurisdiction of a court is expressly ousted by statute, there must be compliance and effect given to it. He relied on the cases of:-
Ajuebor v. A.-G., Edo State (2001) 5 NWLR (Pt. 707) 466 at 481; and NUC v. Oluwo (2001) 3 NWLR (Pt. 699) 90 at 102 – 103.
Issue No.2
Learned counsel submitted that the terms that govern the employment of the respondents with the 3rd appellant are clearly set out in their letters of termination and memoranda as to the terms of their employment. He referred to exhibits 1 – 5 and exhibits 28, 29 and DW1, which were endorsed by the respondents. Hence in line with the terms of contract in the letters of appointment and memoranda the constituted authority of the 3rd appellant terminated the appointment of the respondents and he referred to exhibits 12 & 16. There was nothing like allegation of misconduct in the letters of cessation of appointment and the trial court cannot place reliance on extraneous matters to come to the conclusion that the respondents were terminated based on allegation of misconduct. He cited the case of 1doniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 at 630. He again submitted that parties are bound by the terms of the contract they entered into. He relies on the case of UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 400.
Appointment with Statutory Flavour.
Learned counsel submitted that appointment with statutory flavour can also be terminated in accordance with the terms embodied in the letter of appointment and memorandum if the employee was not removed on ground of mis-conduct. He cited the famous case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599/621.
The learned counsel on the other hand argued that even if the finding of the learned trial Judge that the respondents were removed on the allegation of misconduct was correct, can it be said that they were not given opportunity to defend themselves?, he answered in the positive. He referred to exhibit 20 paragraph 5 where it was stated that ASUU members involved in disruption of examination were invited and given ample opportunity to defend themselves which they turned down. He therefore submitted that the failure of the trial Judge to scrutinize this exhibit with the view of making appropriate finding and to be guided as to requisite weight to be attached to such document had occasioned miscarriage of justice, He cited the cases of Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 622; Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 567.
Issue No.3
On this issue, learned counsel submitted that an award is like a judgment of court of law which binds parties and their privies. The learned trial Judge found as a fact that an award was made on the same subject-matter by the Industrial Arbitration Panel, he therefore ought to have dismissed or struck out the respondents’ case. He submitted further that it is not valid in law for the Honourable Minister for Labour and Productivity to withdraw the award as he lacks the power to do so; he is only empowered to refer the award back to the Arbitration Tribunal, or where there is objection to the award, refer the dispute to the National Industrial Court, otherwise the Minister must confirm the award. He referred, on this point, to sections 12 and 13 of the Trade Disputes Act.
However, in as much as it is not in dispute that the issue bordering on the termination of the respondents forms part of the award delivered by the Industrial Panel, then the issue can be said to have been resolved or determined by the Industrial Tribunal, and as such it would amount to an abuse of judicial process if the same subject matter is being decided by the trial court. The respondents are privies of ASUU, hence they were bound by the award made by Industrial Arbitration Panel. Therefore, the issue of termination of appointments of the respondents constitute an issue of estoppel against the respondents. He relied on the case of:
(i) Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 184; and
(ii) Ogbogu v. Nwonumu Ndiribe (1992)6 NWLR (Pt. 245) 40.
Learned counsel also referred to exhibits DW2, DW3, DW4, DW5, DW6 and DW7 and submitted that the Industrial Arbitration Panel (I.A.P.) is a court and of competent jurisdiction.
The respondents in their brief of argument submitted that the trial court was correct when it held that from the reliefs sought by the plaintiffs in their writ of summons and statement of claim the matter that arose for determination was the unlawful determination of the plaintiffs’ appointments by the defendants. The case is rooted in breach of contract of service by the defendants. He argued that it was a misconception for the appellants to submit that the case is one bordering on trade dispute. He cited the case of Seatruck (Nig.) Ltd. v. Ayo Pyne (1995) 6 NWLR (Pt. 400) 166 at 179. He referred to section 251(1)(p)(r) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the determination of the plaintiffs’ appointments by the defendants was an executive act of the University of Ilorin which is an agency of the Federal Government, as a result, the lower court has jurisdiction to determine the case. He submitted further that notwithstanding the averments in the plaintiffs’ statement of claim to the effect that the appointments were terminated as a result of the plaintiffs’ participation in ASUU strike the fact remains that the defendants exercised executive act to terminate the said appointments, and the reliefs show that they were challenging the wrongful acts of the defendants. He cited the case of NEPA v. Edegbero (2002) 12 SCNJ 173 at 183; (2002) 18 NWLR (Pt. 798) 79.
Learned counsel for the respondents herein referred to the case of Onuorah v. K.R.P.C. (supra) and submitted that the case supports the position that the jurisdiction of the Court is determined by the plaintiffs claims as endorsed in the writ of summons and statement of claim. He further submitted that the nature of the plaintiffs claims which are declaratory and injunctive in nature cannot be entertained by Industlial Arbitration Panel, he cited the cases of Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (No.2) (1987) 1 NWLR (Pt. 49) 284; Kalango & Ors v. Dakuba & Ors. (2003) Vol. 16.WRN 32 at 49. He also referred to exhibit DW5 which was prepared by the appellants’ counsel before the I.A.P. in which he said that the proper court to exercise jurisdiction is the lower court and not the Industrial Arbitration Panel. This changing his position now amounts to inconsistency and hypocrisy. He further contended that this case has been pending before the lower court before the crisis broke out between the National ASUU and the FGN which led to the FGN to approach the I.A.P. for help This case was filed on 14/8/01 while LA.P. matter was filed in 2003.
On the issue of the validity or otherwise of the termination of the plaintiffs’ appointment he submitted that the appellants cannot summarily terminate the appointments of the respondents based on letters of employment and/or memorandum signed by the plaintiffs, as the employment was governed by the Unilorin Act, Cap. 455, Laws of the Federation, coupled with the fact that the said appointments are of permanent nature and pensionable nature. He submitted that section 15 of Unilorin Act is superior to the memorandum, particular regulation 1.1.3 (page 1 of exhibit 11) subject the letter of appointment and memorandum to the provisions of the Unilorin Act. Counsel cited the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 602, 603 and 628; and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 164.
Learned counsel contended that in Olaniyan’s case, as in this case, no reasons were stated in the letter of termination as reliance was placed on the memorandum of appointment, but evidence at the trial disclosed that they were sacked for alleged misconduct, and it was for this reason that the court set aside the termination and ordered their reinstatement, as their appointments cannot be summarily terminated under S. 17 of the University of Lagos Act which is in pari materia with section 15 of the Unilorin Act. He relied on exhibits 17, 18, 19 and 20 that the respondents’ appointments were terminated for alleged misconduct i.e. disruption of examination. He dismissed the submission of the appellants’ counsel that the respondents got fair hearing before the determination of the employment by virtue of exhibit 20. He then submitted that this point was not part of their case at the lower court, and they cannot now set up a different case at the appeal court, he relied on the case of Akuneziri v. Okenwa (2000) 12 SCNJ 242/267; (2000) 15 NWLR (Pt. 691) 526. Even then, the portion referred to in exhibit 20 do not meet the standard for fair hearing as stated in the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) at 550.
On the 3rd issue, learned counsel submitted that the respondents case was not caught by issue estoppel because the matter submitted for adjudication by the respondents to the lower court had neither been deliberated upon nor determined previously by any court of competent jurisdiction. The award, the appellants claimed, was made by the Industrial Arbitration Panel was never tendered by the appellants, hence a party who seeks to rely on a judgment or a plea of issue estoppel has a duty to procure the judgment. He relied on section 132(1) of the Evidence Act and the case of Samano v. Ilesanmi (2001) FWLR (Pt. 54) 377 at 382. Hence the appellants submission on the award by Industrial Arbitration Panel is speculative. It is not the duty of this court to fish for an award made by Industrial Arbitration Panel on which on issue estoppel is being raised when same was not tendered before the court.
Learned counsel for the respondents added that exhibits DW2, DW3, DW4 and DW5 by themselves cannot sustain the assettion that the respondents were caught by issue estoppel they are mere pleadings and address and not the decision of the Industrial Arbitration Panel.
On the other hand, counsel continues, even if the award has been tendered, which is not conceded, it could still not have qualified for the plea of issue estoppel, this is because the conditions stated in those cases – Osunrinde (supra), Nwopara Ogbogu v. Nwonuma Ndiribe (1992) 6 NWLR (pt. 245) 40 have not been met – for example:
(i) IAP. is not capable of giving a final decision on a matter referred to it until the Minister has confirmed it and published same in the Gazette – S. 13(2) of the Trade Dispute Act, Cap. 43, Laws of the Federation, 1990. In this case it was alleged that the Minister of Labour by exhibit DW7 withdrew the alleged award;
(ii) The issue in this case and at the IAP. are different.
This case involves the determination of contract of service while the case of I.A.P. is a Trade Dispute between FGN and ASUU.
(iii) The parties are also not the same.
Finally, learned counsel submitted that the trial court was right in setting aside the letter of cessation of appointments and reinstating the respondents to the employment of the defendants. This is in line with the decision in the case of University of Nigeria Teaching Hospital Mgt. Board v. Nnoli (1994) 10 SCNJ 71 at 75; (1994) 8 NWLR (Pt. 363) 376. That since the appointments of the respondents are governed by S. 15 of the Unilorin Act, Cap. 455, Laws of the Federation, 1990, non-compliance with the Act and exhibit 11 renders the appellants act null and void – Bamgboye v. University of Ilorin (1999) 6 SCNJ 296; (1999) 10 NWLR (Pt. 622) 290.
The appellants, in their reply brief submitted that the assertion of the learned counsel to the respondents at page 15 of their brief is baseless and cannot be supported by evidence from the record. There is nothing in the record to show that the office of Yusuf O. Ali & Co. signed exhibit DW5 or had over bearing input in preparing and filing same as claimed by the respondents’ counsel. Learned appellants’ counsel on page 8 of their reply brief submitted that the respondents’ counsel’s contention in his brief of argument at paragraph 3.03 is not permitted by law as counsel cannot give evidence from the bar, let alone in his written address or brief of argument. He then urged this court to expunge paragraph 3.03 of the respondents’ brief of argument or discountenance same.
The summary of the appellants’ complaint under issue No. 1 is firstly, that the ruling of the trial court was unjustified vis-a-vis the competence of the respondents’ claims. The appellants as defendants objected to the competence of the respondents’ claims. I have read and digested the argument of both counsel on the issue. I think the gravement of objection was that from the writ of summons and statement of claim of the respondents it was apparent that their claim was rooted in trade dispute. The appellants therefore raised an objection that the proper forum for the trial of their case was the National Industrial Court – NIC – which has the vires to try industrial disputes and implementation of collective agreements which were the basis of the respondents’ case. I have earlier on referred to paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 and to be found a pages 75 – 76 of the record of proceedings. My Lords, after careful and calm consideration it is my view that the central points of the respondents’ case before the lower court was the alleged termination of their appointments by the appellants as a result of their participation and partaking in a national strike by ASUU. The argument of the respondents being that the termination was a flagrant violation or breach of the agreement signed between the Negotiating Team of the Federal Government and the officials of the Academic Staff Union of Universities (ASUU). The relevant statement of claim reads thus.
“9. The plaintiffs state further that the defendants have punished and victimized them because they are officers and members of Academic Staff Union of Universities Unilorin Branch who have been opposed to the obnoxious and objectionable policies and style of administration of the 1st defendant ably assisted by the 2nd defendant and condoned painfully (but surprisingly) by the 4th defendant.
(10) The plaintiffs state further that there has been protest in form of strike action by the Academic Staff Union (ASUU Unilorin) members were sometime in February, 2001 against the high handedness of the 1st defendant by which he has destroyed the career of nearly 50 Academic Staff of the University.
(11) The plaintiffs aver further that their action local protest/strike action was suspended in April, 2001 when the national strike by ASUU National commenced. The 1st plaintiff as Chairman of the Union at the Unilorin ASUU wrote to the 1st defendant to intimate him of the said commencement of the national strike … The defendants in a letter signed by the 2nd defendant responded in a letter of 4th April, 2001 to the 1st defendant and acknowledged receipt of 1st plaintiff’s letter and the commencement of the said national strike. The said letters is (sic) hereby pleaded.
(12) The plaintiffs stated that the defendants intimated them by making them to suffer a lot of humiliation and deprivations as a result of their participation in the national strike which is their legitimate and constitutional right to do so as a members of ASUU.
But the plaintiffs had to press forward in order that Unilorin shall not be isolated, in that what was being agitated and being sought from the Federal Government was for the benefit of Nigerian Universities including Unilorin and for better welfare of all staff including the 1st and 2nd defendants who will invariably enjoy the fruits of the struggle.
(13) The plaintiffs also state that there was a clarion call from their (ASUU) National Secretariat directing all Academic Staff of Universities to participate in the said strike. The plaintiff plead and shall rely at the trial on letter dated April 14th, 2001 from the Unions National Secretariat signed by their president to this effect.
(14) The plaintiffs state that eventually the Federal Government of Nigeria through its organ and agencies like the Federal Ministry/Minister of Education.
National Universities Commission and Government Negotiating Team (at which 1st defendant was a member) but headed by Professor Ayo Banjo former Vice-Chancellor of University of Ibadan, negotiated with ASUU team led by their president, Dr. Oladip Fashina.
(15) The plaintiffs state that the defendants victimized them by purporting to terminate their appointment during the said strike and thereby wrongfully and prejudicially disrupted (sic) their light to continuous employment with the University. The plaintiffs state that this action is contrary to and against the agreement signed between Negotiating Team and ASUU that no one should be victimized as a result of participation in the said strike.
(16) The plaintiffs plead and shall rely at the trial on copy of the agreement signed by the Federal Government owners of the Universities and ASUU. Plaintiffs also plead copy of the three joint communiqu’C3’A9 issued and signed by Professor Ayo Banjo JP, for on behalf of Federal Government and Dr. Oladipo Fasina on behalf of ASUU”.
I have taken pains of reproducing the above averments in the statement of claim in order to show, even at the risk of repetition, that the substratum of the respondents’ case, ab initio was the alleged wrongful termination of their employment during the national strike action embarked upon by ASUU which termination runs foul of the collective agreement between the Federal Government “the owner of the University and ASUU”.
The subject matter herein has some elements of trade dispute.
The jurisdiction of a court is sometimes limited especially by the type of subject matter. It is a well settled law that courts are creatures of statute and it is the statute that created a particular court that will also confer on it its jurisdiction. This may be extended, not by the courts, but by the legislature, for it is part of the interpretative functions of the courts to expound the jurisdiction of the court but not to expand it. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at p. 561 – para. B per Oputa, JSC.
It is my candid view that the lower court, formerly the Federal Revenue Court has limited jurisdiction in civil causes and matters.
The National Industrial Court has also limited jurisdiction. The Shalia Court of Appeal has limited jurisdiction so also the Customary Court of Appeal. No court should be allowed to usurp the powers of other. No court should be allowed to starve the other. The respondents’ choice of the Federal High Court in my view is wrong.
I may not be correct though Specific jurisdictions were assigned to the Federal High Court but trade disputes shall be thrashed out in the National Industrial Court.
The appellants’ issue No.1 is therefore a direct challenge to the trial court’s finding/ruling as to the jurisdiction. The trial court, my Lords, ought to have struck out the case of the respondents on the ground of lack of jurisdiction of the subject-matter which were predicated on trade dispute and implementation of collective agreements. The best cause for the trial court definitely was to, as I stated, decline jurisdiction – Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212/228 – 229 per Oguntade, JSC. I think, the learned Judge of the lower court was wrong in looking beyond the writ of summons and statement of claim in order to convince himself that he can assume jurisdiction in this matter. It was ably stated by the Supreme Court that in determining whether a court has jurisdiction in a matter or not, the court will examine or consider the nature of summons and statement of claim. I am always readily bound by the decision of the Supreme Court. I am not saying that the Federal High Court will have no jurisdiction to entertain a matter stemming from organ or agents of the Federal Government like Unilorin. Far from that, I am not unaware though that the Decree No. 107 of 1992, Decree No. 60 of 1991 both created and widened the jurisdiction of the Federal High Court. The crux of the argument and submissions of the learned counsel for the appellants is that in view of the fact that the plaintiffs/respondents’ claims are based and predicated on trade disputes only the National Industrial Court has jurisdiction to hear the matter. In my little understanding of the law over the years is that the court, especially when its jurisdiction is challenged, in this manner by filing a notice of preliminary objection, is only better and safer for that court to look only the writ of summons and statement of claim to decide for itself whether it has jurisdiction or not. “This is because, (to borrow Tobi, JSC’s statement) only the claims or reliefs donate jurisdiction to the court”.
See Onuorah v. K.R.PC. Ltd. (2005) 6 NWLR (Pt. 921) 393. The court is not allowed, for one moment, to look elsewhere apart from the writ of summons and statement of claim. The trial court should have accepted that fact and struck out the respondents’ claims. After all, case comes, case goes. I finally abide by the decisions of my Lords Akintan and Tobi, JJSC on pp. 404 – 405; and 406 – 407 respectively in the above Supreme Court’s case. The issue is resolved in favour of the appellants herein.
On the 3rd issue formulated by the appellants, the decision is equally interesting. After looking and considering the argument for and against, I hold that it will be difficult to hold that the trial court had no jurisdiction to have entertained the case on issue estoppel.
Before I delve seriously into issue No.3, I wish to digress a little to summarize the stance taken by the appellants in their brief, namely, that the termination of appointments of the respondents had been the subject of the decision before the Industrial Arbitration Panel which has made an award against ASUU, the union to which the respondents belonged. It was then contended that since the issue of termination of the appointments of the respondents had been the subject of an award by the Industrial Arbitration Panel, then the trial court had no jurisdiction to have entertained the case as constituted. Furthermore, the respondents in their pleadings and evidence at the trial did not deny the fact that the issue of the termination of their appointments was part of the reference to I.A.P. in the dispute between ASUU and the Federal Government.
According to the learned counsel for the appellants the details of which were stated earlier in this judgment, the respondents did not dispute the fact that an award was made by I.A.P. in which it upheld that ASUU has filed an objection against the award and that the Minister of Labour and Productivity had put the award in abeyance.
The respondents’ counsel challenged this issue vehemently and submitted that the respondents’ case was not caught by issue estoppel.
The said judgment was not produced by the appellants who sought to rely on it. A lot of authorities were cited in support. He argued also that some conditions stated in the cases were not met. See Osunayinde supra and Ogbogu v. Nwonnma Ndiribe (1992) 6 NWLR (Pt. 245) 40. The conditions are that:
(i). the LA.P. is not capable of giving a final decision
(ii) the issues are different; and
(iii) the pat1ies are also not the same.
I do not buy the idea that since the Minister has withdrawn the award that alone should have made the trial to continue having jurisdiction. That contention lacks legal backing on the ground that the Minister of Labour can neither, lawfully, withdraw, set aside nor nullify an award by the I.A.P. The Minister can however lawfully affirm an award or remit same to the Appeal Tribunal. See section 32(1), (2) – (5) of the Trade Disputes Act (supra).
Above could have been the end of this judgment. There would have been no need for me to go further and treat issue No.2. This is because I do not believe that the claims as presented should have been in the lower court. I am not supposed to consider the modes of termination of the appointments of the respondents. All what I know is that there was need for the appellants under section 15(1) of the University of Ilorin Act, Cap. 455 to give the respondents a hearing. Whether the evidence, which has not been challenged, that members of the ASUU i.e. the respondents were invited to defend themselves but turned the invitation down. Whether that is sufficient to say that the respondents were accorded hearing, is another issue altogether. However, there is another mode of cessation of the appointments of the respondents under S. 15(3) of the same Act, under which the appellants alleged to have acted in removing the respondents. I have also closely considered the relevant exhibits and found that it is not permissible for me to consider the issues under issue No.2 as distilled by the appellants, It means that I cannot at the moment decide on the correctness or otherwise of the decision of the trial court that the termination of the appointments of the respondents was wrongful because according to the trial Judge, the respondents were not heard.
It is therefore now firmly settled that once a preliminary objection succeeds, as in the instant case, there would be no need to go further to consider the other issues formulated, It even means that since the lower court lacked jurisdiction to heal the matter, as the claims are incompetent before it (lower court), this court will lack jurisdiction to entel1ain the present appeal. See Chief Bright Onyemeh & Ors. v. Lambert Egbuchulam (1996) 4 SCNJ 237 at 249; (1996) 5 NWLR (PI. 448) 255; and Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350.
All what I have been labouring to state my Lords is that in the final analysis I hold that the appeal has merit. It is therefore allowed.
The judgment of the lower court, Federal High Court, Ilorin per Olayiwola, J., delivered on 26th July, 2005, is in its entirety set aside.
N10,000.00 costs to the appellants herein against the respondents.
Other Citations: (2006)LCN/2051(CA)
