University of Ilorin & Anr V. Prof. J. A. Akinyanju (2007)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
By originating summons filed by the Respondent dated 20th February, 2006 and filed the same day, he prayed the Lower Court for the following reliefs against the Defendants/Appellants.
“1) A DECLARATION that the exercise by the Plaintiff of a right to freedom of expression including the freedom to hold opinions and to receive and impart ideas and information as guaranteed under the Constitution and recognized under the statute regulating the employment of the Plaintiff vide a Memo written to the Congregation of the University on December 1, 2000 cannot qualify for a misconduct as to warrant the termination of the appointment of the Plaintiff on the footing thereof.
2) A DECLARATION that at whatever event it was not right for the Defendants to terminate the appointment of the Plaintiff on account of the said Memo written by the Plaintiff to the Congregation of the 1st Defendant University in exercise of the Plaintiff’s constitutional and statutory right to freedom of expression etc. On the allegations that the Memo was in breach of normal channel of protest communication and that it caused disaffection within the University and so on when the Defendants did not substantiate their claims that the Plaintiff thereby breached the normal channel of protest communication and caused disaffection within the University and so on.
3) A DECLARATION that it was not proper for the Defendants to terminate the employment of the Plaintiff on account of the Memo when the Defendants did not establish that the contents of the Memo were false and when the position expressed in the Memo was vindicated vide the judgment of this Honourable court in Suit No. FHC/IL/CS/48/99: PROFESSOR TUNDE ODULEYE VS. UNIVERSITY OF ILORIN & ORS. Which was delivered before the purported trial of the Plaintiff.
4) AD ECLARATION that it was not proper for the Fact Finding Committee from whose Report SDAC and Council of the University derived the basis for terminating the appointment of the Plaintiff to rely on matters that had taken place in the past that were not investigated by the committee to be made bases for making prejudicial comments against the Plaintiff and recommending on that footing that the Plaintiff’s matter be referred to the SDAC for appropriate disciplinary action.
5) A DECLARATION that it was not proper for the Defendants to terminate the employment of the Plaintiff for unspecified “acts of misconduct in the course of (his) official duties” as stated in the letter of termination when he was not confronted with such acts of misconduct in the course of his official duties or given hearing in respect thereof at whatever stage.
6) A DECLARATION that assuming the Defendants could institute disciplinary proceedings against the Plaintiff on account of his Memo to Congregation which the Defendants purportedly construed to be an act of misconduct, the Plaintiff was not accorded fair hearing in the processes that culminated in the purported termination of his appointment with the 1st Defendant University by virtue of which the purported termination in unconstitutional, ultra vires, null, void and of no effect whatsoever.
7) A DECLARATION that the Defendants did not ultimately follow the due process of law as enshrined in section 16 of the University of 1I0rin Act Cap. U7, Vol. 15, Laws of the Federation of Nigeria, 2004 before purporting to terminate the appointment of the Plaintiff and consequently the purported termination is unconstitutional, ultra vires, null, void and of no effect whatsoever.
8) AN ORDER reinstating the Plaintiff back to his office in the 1st Defendant – University with all his rights and privileges attached and without loss of promotion and directing the payment forthwith of his salaries and allowances with effect from the date of his suspension from duties, idest 8th March, 2001 till the date of judgment in this action and thenceforth.”
The said originating summons was supported by a 72 paragraph affidavit which spanned pages 5 – 12 of the record, while exhibits A – O were the annexures to the said affidavit. These could be found on pages 13 – 91 of the record.
The Defendants who are the Appellants before this court on being served with the said originating summons and its attachments entered through their counsel a conditional appearance dated and filed on the 6th day of March 2006. This could be found on page 62 of the record.
However, in response to the affidavit in support of the originating summons of the Plaintiff/Respondent, a joint counter-affidavit was filed by the defendants/applicants; the said counter-affidavit was deposed to by one Ibrahim A. Oyeyemi, an acting Director in the Legal unit of the 1st Appellant. The said counter-affidavit is of 34 paragraphs and it has attached to it exhibits UNILORIN 1 – 6 which spanned pages 94 – 123 of the record.
The Defendants/Applicants having perused all the aforementioned processes discovered, and rightly in the view of the learned trial Judge, that the action was not the one which ought to have been instituted vide originating summons consequent upon which a Notice of Preliminary Objection dated 29th of March, 2006 and which was filed on the same day was brought before the lower court. The said notice of preliminary objection could be found on pages 124 – 125 of the record.
The said notice of preliminary objection was however set down for hearing by the Honourable Judge of the lower court and arguments were canvassed by the two Counsel on the propriety or otherwise of the originating summons adopted by the respondent on the 22nd day of May, 2006 and a considered ruling was delivered by the lower court on the same 22nd day of May, 2006 whereby the learned trial Judge upheld the preliminary objection of the Defendants/Applicants and the originating summons was eventually struck out.
However, after the striking out of the originating summons, the learned trial Judge made another order to the effect that he directed the suit to be by writ of summons which is to be filed within 7 days of the striking out of the originating summons with a rider that it is without prejudice to any limitation law. The proceedings of the lower court and the ruling could be found on pages 129 – 131 of the record.
It is however the subsequent order made by the trial Judge after striking out the originating summons of the Plaintiff/Respondent that culminated into this appeal.
In his ruling, the learned trial Judge held inter-alia thus:
“From the foregoing, I think the originating summons ought to be struck out and is hereby struck out and this suit is directed to be by writ of summons. It is tidier or neater.
The writ of summons is to be filed with 7 days of the striking out of the originating summons. This is without prejudice to any limitation law. This is order of court.”
Dissatisfied with ruling of the lower court, particularly the order of the learned trial Judge that the Plaintiff/Respondent should file a writ of summon within 7 days and without prejudice to any time limitation for the commencement of proceedings in the matter, the Defendants/Appellants filed a Notice of Appeal in this court which carries two grounds of appeal. Shorn of their particulars, they read thus:
“GROUND 1
The learned trial Judge erred in law and acted without jurisdiction after making an order striking out the case, to have gone ahead to order the filing of a writ of summons.”
“GROUND 2
The Learned trial Jude erred in law when he held as follows: “the writ of summons is to be filed within 7 days of the striking out of the originating summons. This is without prejudice to any limitation law. This is the order of Court. ”
My Lords, this is a Ruling in which none of the parties to the action was happy. The respondent also aggrieved by the ruling, was granted leave to appeal against the ruling and his Notice of Appeal in this regard was deemed filed on the 9th day of October, 2006.
In a brief settled by Yakubu Dauda Esq, Learned Counsel distilled from the two Grounds of Appeal one issue for determination to wit.
“Whether the learned trial Judge was not in error having struck out the case to order that the Plaintiff/Respondent should file a writ of summons within seven days and without prejudice to any limitation law.”
Learned Counsel submits that it is trite that once a court strikes out a case, such action of the court brings an end to such a case and the court striking out such a case has no vires to order a relist or recommencement of the case unless the party whose case was struck out brings an application to relist such a case.
Learned Counsel submitted that after striking out a case, the learned trial Judge has become funtus officio in respect of the case and has lost the vires by so doing, to order the filing of a writ of summons. He relied on the cases of UBN Plc vs. CFAO (Nig) Ltd (1997) 11 NWLR (pt. 527) 118 at 127 Per D. Mohammed J.CA and NICON vs. Pieco Ltd (1990) 1 NWLR (pt 129) 697 at 708 par B.
Learned Counsel submitted that there was no where the Plaintiff/Respondent made an alternative submission to the effect that if he is found to have commenced the action by means of a wrongful procedure, the court should order its commencement by writ of summon but instead he argued emphatically that originating summons was the proper procedure which he had adopted. He referred to the case of LawaI vs. Adeniji (1997) 3 NWLR (pt. 494) at 463 Paras. D – F Per Okunola J.C.A. (of blessed memory).
It is also the submission of the learned Counsel that no court in the land has the vires to extend or shorten the limitation period prescribed by statutes. Their duty is that of interpretation of law and not that of amending the provisions of the statutes in order to suit either its purposes or that of any of the parties before it. He cited the cases of Dabup vs. Kolo (1993) 9 NWLR (pt. 317) p. 257, USN VS. Nwaokolo (1995) 6 NWLR (pt. 400) 127 at p. 154.
Learned Counsel argued that looked at from whatever angle, a case for the intervention by this court has been established by the appellants and he urged us to allow the appeal and grant all the reliefs sought by the Appellants in their Notice of Appeal.
Learned Counsel for the respondent as can be gleaned from the brief filed a preliminary objection to appellants’ appeal and the grounds of the objections are:
“i) Ground of Appeal number one of the Appellants is not based on or related to the ruling of the lower Court and as such the ground of appeal with the issue in respect thereof is invalid.
ii) Ground two of the Appellants appeal is in respect of a decision favourable to the Appellants in respect of which they have suffered no adversity and by reason of which they cannot be regarded as aggrieved thereby.
iii) Ground of Appeal number two of the Appellants is also not related to a live issue in the ruling appealed against and/or constitutes hypothetical issue or academic exercise. ”
Learned Counsel distilled one issue for determination from the grounds of objection stated (supra). The issue for determination runs thus:
“Whether the appeal of the Appellants herein is not wholly incompetent and liable to be struck out on the footing of the grounds of the preliminary objection.”
Learned Counsel contended that the ruling of the lower Court that culminated in this appeal is contained at pages 132 and 133 of the record. The order made in the ruling was that the Originating Summon was struck out. For ease of reference, the relevant part of the ruling reads thus at page 133 lines 3 to 5 of the record:
“From the foregoing, I think the originating Summons ought to be struck out and is hereby struck out and this suit is directed to be by writ of summons … The Writ of Summons is to be filed within 7 days of the striking out of the originating summons.”
Learned Counsel submitted that from this passage, it is beyond ¢ disputation that the learned trial Judge did not intend and never struck out the suit itself. Ostensibly in the belief that having not struck out the suit itself it had not become functus officio, the lower court went on to order that the originating summons be substituted with a writ of summons to be filed within seven days of the ruling.
Learned Counsel opined that the ration decidendi of the ruling of the lower court is that the court ordered writ of summons to be substituted for the originating summons in the belief that the court had not become functus officio only by striking out the originating summons rather than the suit itself. Whether this position is right or wrong in law is what can only be the subject of a valid appeal in respect of the ruling purportedly appealed against by the Appellant herein.
In his reply brief, appellants’ Counsel submitted that there cannot be any other reasonable meaning or construction one can give to the order of the trial Judge striking out the originating summons and making consequential order ordering the respondent to file Writ of summons than that the striking out of the originating summons brought an end to the respondent’s case while the filing of the writ of summons revived the said action which has already been brought to an end.
Learned Counsel further submitted that if the learned trial Judge had not wanted to bring an end to the case, what he would have done would have been to state why he felt originating summons was not the appropriate procedure and go on to order pleadings simpliciter.
Now, a closer look at the passage quoted a while ago will reveal the fact that it was not and could not be inferred that the learned trial Judge intended to struck out the entire case of the Plaintiff. Whatever doubt that could have arisen concerning the intention of the lower court was dispelled by the ruling of that court on the application for stay of proceedings brought before it by the Appellants. Hear the learned trial Judge:
“A history of this case and the consequent Appeal lodged by the Applicant discloses the frivolity of the appeal. The Respondent/Plaintiff had commenced an action by way of originating summons and the court directed the matter be commenced by way of Writ of Summons and struck out the originating summons. The Applicant/Defendant now held the view that the whole suit has been struck out and accordingly the court is functus officio … At no time did I strike out the suit. A close and total reading of my ruling is of obvious effect that I directed the Originating Summons to be by way of Writ of Summons. I did not want an amendment of the Originating Summons on the face of it to writ of summons … I reiterate again, that at no time did I strike out the suit as no phrase “Suit Struck Out” can be found in my ruling/order … ”
From the foregoing, I am of the opinion that the ratio decidendi of the ruling of the lower court is that the court ordered writ of summons to be substituted for the originating summons in the belief t hat the court had not become functus officio only by striking out the originating summons rather than the suit itself. Whether this position is right or wrong in law is what can only be the subject of a valid appeal in respect of the ruling appealed against by the Appellants in this appeal.
I must agree with the learned counsel for the respondent/cross-appellant when he stated in his brief thus:
“Against this backdrop, the Appellants’ number one ground of appeal is invalid for not stemming from the ratio decidedi of the ruling and/or not related to the decision appealed against. It is bound to be struck out or discountenanced peremptorily. See GWANDU V. GWANDU (2004) ALL FWLR (Pt. 229) 841 at 860; MERCANTILE BANK OF NIG. PLC V. NWOBODO (2005) ALL FWLR (PT. 281) 1640 AT 1647 AND 1649; OBATOYINBO V. OSATOBA (1996) 5 SCNJ 1 AT 19. In SARAKI V. KOTOYE supra at the same page 43, the Supreme Court had this to say: “it is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR 590.
Ground of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment … This is the precondition for the vesting of the judicial powers of the Constitution in the Courts – See Senator Adesanya v. President of Nigeria (1981) 1 N.C.L.R. 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against …. in the absence of a factual controversy between the parties to which the grounds of appeal are related or tied, there is no live issue in respect of which this court can adjudicate. In the absence of a competent appeal in respect of which this court can adjudicate, the appeal must be struck out. ”
On ground two, Learned Counsel posited that appellants’ notice of appeal questions the propriety of the lower court’s statement that the order f or the filing of writ 0 f summons within seven days was without prejudice to any limitation. Based on this statement, the appellants have set out three particulars of error to wit:
i) A court cannot make an order the effect of which is to revive a dead cause of action.
ii) A court order cannot extend the limitation period prescribed by statute.
iii) Having struck out the case, the court has no vires to make a binding order in the case.
Learned Counsel submitted that the grounds of appeal and corresponding arguments in the brief are at best of hypothetical or academic importance. Firstly he referred to the Blacks Law Dictionary (Eighth Edition) which defines “with out prejudice” to mean:
“Without loss of any rights, in a way that does not harm or cancel the legal rights or privileges of a party.”
Apparently, Learned Counsel submitted that, it is the Appellants who could have wanted to raise the issue of the action being statute barred or otherwise caught by limitation law to stultify the action of the Plaintiff if the circumstances would permit. Therefore, this part of the ruling is favourable to the Appellants and they cannot be rightly aggrieved by it. Being not an aggrieved party, the Appellants do not have a right of appeal against that part of the ruling as the Constitution and the law and practice in the administration of Justice only vest a right of appeal to a superior court against a decision in respect of which a person is aggrieved. See: FADAWA & ORS. V. JATAU (2003) FWLR (pt. 164) 228 at 247 where the Court of Appeal held that a party appealing must have been aggrieved by the decision as a party cannot appeal against a decision in his favour.
Learned Counsel for the Appellants in his reply brief submitted that the submission of the respondent in his understanding of the phrase “without prejudice to any limitation law” as appeared in the ruling of the trial court which is the subject of this appeal was actually a misconception or an attempt on his part to give wrong meaning to a very clear phrase used by the learned trial Judge.
He further submitted that from the peculiar circumstance of this case, it is crystal clear that the phrase without prejudice to any limitation law is not in any way favourable to the appellants herein but rather to the respondent whom the trial Judge had earlier ordered to file a writ of summons after striking out the originating summons.
Though Learned Counsel spent considerable time and energy in his brief spanning several pages in trying to explain how the phrase “without prejudice” cannot be in his favour, I am not convinced with all the arguments he canvassed in support of his position on this point. Clearly applying the phrase without prejudice “as defined in the Black’s law Dictionary (supra) to the factual situation of the matter under consideration, it cannot be said the phrase is not in his favour.
In the case of Mobil vs. Monokpo (2003) 12 SCNJ p. 206 at 223, the apex Court held this:
“A party to proceedings cannot appeal a decision thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party … ”
That aside, neither party to this appeal made any issue out of any limitation law before the lower court. No such issue has also arisen in this appeal. What the learned trial judge said on the issue of limitation law could easily be seen to be an obiter dictum. The principle is fairly well settled that appeal must be based on the ratio decidendi and not obiter dictum of a ruling or judgment. See: IGWE V. A.I.C.E. (1994) 8 NWLR (PT. 363) 459 AT 476; SAUDE V. ABDULLAHI (1989) 3 NWLR (PT. 116) 387 AT 431 and OGUNBIYI V. ISHOLA (1996) 5 SCNJ 143 at 153 among the legion of authorities existing on this principle.
In sum, in the light of all that I said, this appeal is completely “devoid of any merit and same must be and it is hereby dismissed.
I now proceed to consider the cross-appeal filed by the respondent from which one issue as stated supra is distilled for our consideration which incidentally is the sole ground of appeal. The sole issue for determination reads thus:
“Whether the learned trial Judge was not wrong to have struck out the originating summons in this case instead of merely ordering that pleadings be filed upon finding that there were disputed facts in the affidavits of the parties.”
(Sole ground of the cross-appeal)
Learned Counsel for the respondents In this appeal did not formulate any issue for determination but adopted the sole issue for determination stated (supra) as his own issue for determination in this cross-appeal we are about to consider anon. Learned Counsel for the Appellant submitted that the lower Court was wrong in proceeding to strike out the originating summons filed in the case after having found that there were some disputed facts which made originating summons inappropriate in the case.
Learned Counsel further submitted that the position of the law is well settled in a long line of cases that commencing a case vide originating summons rather than writ of summons is not fatal to the proceedings. What has been consistently done in such instance is to deem the matter as having been commenced by writ of summons and order pleadings to be filed. See: N.B.N. LTD. & ANOR. V. ALAKIJA & ANOR. (1978) 9 – 10 S.C. (REPRINT) 42. In that case, the Supreme Court found that originating summons was not proper in view of disputed facts that would have to be resolved at the trial of the case. The apex court set aside the Judgment of the trial court given on the originating , summons proceedings and made a consequential order which we shall discuss anon.
Learned Counsel urged us to hold that there was no need for the trial court to have struck out the originating summons in the case and that the court should have simply directed parties to file pleading for purposes of resolving the issues in dispute through oral evidence. Learned Counsel urged us to resolve this issue in his favour.
Learned Counsel for the respondents submitted that authorities abound to the effect that our courts are not Father Christmas and that a party can only be entitled to relief or reliefs legally claimed from court if such claim is proved by such a party. Learned Counsel submitted that it is noteworthy that both the cross-appellant and his counsel strongly believed that the proper way of initiating the cross-appellant’s case before the trial court was adopted by them.
That is they firmly believed that originating summons was the proper way of commencing the action before the lower court. This their firm belief was demonstrated by the cross-appellant’s counsel’s strong argument against the preliminary objection raised by the cross-respondents’ counsel.
It is the submission of the learned counsel that the trial court did not have any alternative than to strike out the originating summons when it became evident that it was not the proper method of instituting the cross-appellant’s case in the lower court and when neither on being served with the preliminary objection nor in the course of argument of same the learned counsel for the cross-appellant failed to ask for any alternative prayer like ordering of pleadings.
Thus since the learned trial judge had rightly found that the cross-appellant had wrongly commenced his action, he was right to have struck out the originating summons. See the case of Ajagungbade III VS. Adeyelu II (2001) 16 NWLR (pt. 738) 126 at 198.
Learned Counsel further submitted therefore that since ordering of pleadings was not sought for by the cross-appellant, the trial court was not right not to have ordered it. See the case of Akinbobola vs. Plisson Fisko (1991) 1 NWLR (pt. 167) 270 at 278 par. 3 pg. 286 par. 3.
Learned Counsel contended that the learned trial Judge had found that the cross-appellant had wrongly commenced his action, he was right to have struck out the originating summons. He relied on the cases of Ajagungbade III vs. Adeyelu II (2001) 16 NWLR (pt. 738) p. 126 at 198 and Adeleke VS. Oyo State House of Assembly (2007) All FWLR (pt. 355) 211 at 251.
In the case of N.B.N. Ltd vs. Alakija and Anor., (supra) the apex court held thus:
“We would therefore allow this appeal … We order a retrial of the case before another judge of the High Court of Lagos State. The trial Judge shall proceed, at the retrial, to treat the case as if it has been commenced by writ, order pleadings and he shall hear this case on the pleadings so ordered and delivered. ” (emphasis added).
Again, in the case of Oagogo vs. Attorney General (supra) this court per Ikongbeh JCA (of blessed memory) had this to say: “On the whole, therefore, I allow the appeal and set aside the ruling of the learned trial Judge that originating summons was an appropriate procedure for commencing the action giving rise to this appeal. I however affirm his decision not to strike out the action. I make the consequential orders that he ought to have made, which is that the parties should file and exchange pleading, and that the action should proceed as if it had been commenced by writ of summons.”
It is appropriate at this juncture to pause and say that in the light of the avalanche of authorities cited (supra) the decision of the trial court ordering to file a writ of summons and other processes was unassailable and could stand the test of time. Learned Counsel for the respondents made heavy weather of the fact that the Counsel for the appellant having brought the action by origination summons and defended same before trial court cannot be heard to say that the trial Judge should have ordered for pleadings to be filed. He also submitted vehemently that our courts are not Father Christmas, and would only grant an award based on the claim of a party.
May I say, with due respect to the Learned Counsel, he has missed the point. The fact that the Learned Counsel had filed the action by originating summons and defended the position taken by him at the trial does not mean he cannot change his position in the light of the decisions of the Supreme Court and this Court in the cases cited supra.
On the submission of the Learned Counsel that our Courts are not Father Christmas with tremendous respect to the Learned Counsel he missed the point again. I am of the opinion that to insist that because the Counsel did not ask for pleadings to be filed, the court could not make that order is to allow technicalities to hold sway. Needless to say, the hey days of technicalities now are over for good. Our law courts nowadays are after substantial Justice devoid of any technicalities. The case of Ajugungbade III vs. Adeyelu II and Adeleke vs. Oyo State House of Assembly relied by the Learned Counsel are not apposite to the facts of the case under upon consideration as such cannot be called in aid of the appellants’ appeal.
On the whole, in the light of the foregoings, I hold that the cross-appeal filed by the cross-appellant is meritorious and it is hereby allowed.
It is instructive to note that the Counsel for the respondent/cross-appellant stated in his brief that both parties to this appeal have already filed and exchanged their pleadings sequel to the order of the trial court. The Respondent as Plaintiff filed his Statement of Claim alongside the Writ of Summons which the trial court ordered to be filed. Upon being served, the Defendants/Appellants filed their joint Statement of Defence. Thereafter, the Plaintiff had started giving evidence before t he stay of proceedings at the court below was ordered by this Honourable Court.
A careful perusal of the records of the lower court will reveal the fact that all the processes had been filed. That being the case, I cannot agree more with the respondent’s Counsel that the interest of Justice will be better served if the lower Court is directed to continue hearing the case on the basis of the pleadings already filed and I so direct.
Parties in this appeal should bear their own costs.
Other Citations: (2007)LCN/2463(CA)
