University of Ilorin V. Mr. A. I. Adeniran (2006)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of Hon. Justice S. D, Kawu of the Kwara State High Court sitting at Ilorin delivered on the 30th day of July 2004.

The Respondent was the Bursar of the University and thus a principal officer of the institution. The Respondent’s appointment was terminated by the Appellant on the 28th day of February 1985. The Respondent did not protest at the time. He accepted six months salary in lieu of notice. He also accepted other entitlements such as leave grants and leave bonuses paid to him on his termination by the Appellant. He thereafter took up appointment as an accountant with Messrs Oyamoye & Co” a firm of Chartered Accounts.

On the 26/2/1991, six years less two days after the Respondent’s appointment was terminated, the Respondent filed an action before the High Court of Kwara State sitting at Ilorin. The Respondent asked for the following reliefs as contained in paragraph 30 of his Amended Statement of Claim dated 27/10/1992:

‘Whereof the Plaintiffs claim is for:

(1) A declaration that the termination of the Plaintiffs appointment with the Defendant vide a letter Reference No. UI/SSE/PF/866 of 28th February, 1985 “due to poor performance of assigned responsibilities’ without giving him an opportunity to defend himself against the allegations contrary to the provisions of the University of Ilorin Decree, 1979 and Section 33 of the Constitution of the Federal Republic of Nigeria 1979 and it is therefore illegal, unlawful, unconstitutional, null and void and of no effect.

(2) (A) A declaration that the employment of the Plaintiff with the Defendant as Bursar is still subsisting and that the Plaintiff is entitled to all his emoluments from 28th February, 1985 to the date of judgment in this case, or in the alternative

(B) (i) an award of the sum of N430,856.00 being the emoluments to which the Plaintiff is entitled from 28th February, 1985 when his appointment was purportedly terminated and 30th November 1999 when he is due for compulsory retirement, excluding the six months salary in lieu of notice paid at the time of the purported termination of appointment and tax due on the said emoluments; and

(ii) an order that the Defendant shall pay to the Plaintiff the appropriate gratuity and pension as and when due.”

In elaboration of his claim, the Plaintiff filed a 30 paragraph further Amended Statement of Claim while the Defendant filed a 41 paragraph further Amended Statement of Defence.

In support of his claim, the Plaintiff gave evidence on oath and tendered thirteen (13) exhibits while the Defendant in opposition to the claim called three (3) witnesses and tendered thirteen (13) exhibits.

The Hon. Judge delivered a considered judgment in the Suit on 30/7/2004. The learned trial judge found in favour of the Respondent at the lower court. He awarded him the sum of N969,722.00k as arrears of salary; gratuity in the sum of N192,287.00k;, pension in the sum of N4,398.24k per month from 1st October 1999.

The Appellant has appealed against the said judgment and orders of the learned trial judge.

The Appellant filed notice of appeal dated 16/8/2004 and filed on 17/8/2004. Leave was granted by this Court on 22/6/2005 for the Appellant to file additional grounds of appeal and to argue new issues not raised at the trial court. He raised therein the issue of the jurisdiction of the court vis-a-vis the Statute of Limitation Act and the jurisdictional competence of the lower court.

The Appellant’s counsel on 12/10/2006 adopted the Appellant’s brief dated 8/9/2005 and filed the same day, The Respondent did not file any Respondent’s brief and was not represented by counsel. He urged the court to hear and consider the appeal without his input since he had decided not to defend the appeal. He said he also decided not to engage counsel to defend the appeal.

We are now constrained to consider this appeal based only on the issues and argument canvassed by Appellant’s counsel.

Learned Appellant’s counsel identified three Issues for determination –

“(1) Whether the action of the Respondent against the Appellant in the trial court was not statute-barred having been filed six (6) years less two (2) days after the termination of his appointment (Additional Ground 1. Leave granted by this honourable court on 22nd June, 2005).

(2) Whether the Kwara State High Court has jurisdiction to try the case in view of decree 107 of 1993 which ousted the jurisdiction of State High Court. (Additional Ground 2, Leave granted by this honourable court on 22nd June 2005),

(3) Whether the Respondent was given fair hearing before he was terminated by the Appellant, (Grounds 2 and 3 of the original Grounds of Appeal).’

Issue One

Issue one is whether or not the action of the Respondent filed six years less two days after the termination of his appointment was not statute barred. This is an issue emanating from Ground One of the additional Ground of Appeal. Learned Appellant’s counsel argued that the Respondent’s Writ of Summons dated 26/2/1991 filed the same day was issued six years less 2 days after his termination of appointment. It is to be noted that this issue being introduced for the first time in this Court, the learned trial judge did not pronounce on it. A matter of jurisdiction affects the competence of the trial court to entertain the action. Thus the issue can be raised at any time even on appeal.

Learned Appellant’s counsel, Chief Arosanyin submitted that the action of the Respondent was statute barred by the time the Writ of Summons was flied on 26/2/1991 in view of the provisions of the Public Officers Protection Act Cap.339 Laws of Nigeria 1990 and the Public Officers Protection Law of 1963 applicable in Kwara State of Nigeria which was a part of Northern Nigeria. He argued that both the law and the Act by virtue of 82(a) have the same provision on this issue. He cited IBRAHIM V, JSC KADUNA (1998) 12 SCNJ 259 at 272 lines 25-38. He submitted that since this is an issue of jurisdiction, even though the statute of limitation was not pleaded at the trial court, it could be raised at any time with leave even on appeal. He cited the following cases –

1. ELHODAGBE VS. OKOYE (2005) All FWLR Pt. 241 at 203 (Holding 1).

2. DANGOTE VS. CIVIL SERVICE COMMISSION PLATEAU STATE & 2 ORS (2001) FWLR Pt. 50 1639 AT 1843 (Holdings 1 and 2).

3. CHIEF EMMIGBE OMOKAFE & 2 ORS. VS. MIUT ARY ADMINISTRATOR EDO STATE OF NIGERIA & 3 DRS. (2005) All FWLR Pt. 243 6299 AT 633 (Holden 2 per Oguntade, J.S.C)

4. ATITAYE VS. PER. SEC. BORNO STATE (1970) NWLR Pt.129 728 at 730-731 (Holdings 1, 4, 5 and 6 in particular).

In my view, by the Public Officers Protection Act, (Order 39 of 1916 and Order 47 of 1951) the commencement date of which is 21st September, 1916, provision was made to provide for the Protection against actions of persons acting in the execution of public duties, It is of general application all over the Federal Republic of Nigeria. 8.2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation applicable to the Respondent states as follows:

‘Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, Law, duty or authority, the following provisions shall have effect.

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

Is the University of Ilorin a “Public officer” within the meaning of the Act? I think so and all the authorities say so, University of Ilorin is a Federal Government Agent or Institution established by an Act of the national Assembly. See AKEEM V. UNIBADAN (2003) 10 NWLR Pt. 829 Pg. 584 at 596.

Iguh, J.S.C. defined “any person” referred to in S. 2(a) of the Public Officers Protection Act as both artificial and natural persons alike. His Lordship laid down the decision law that the Act protects as distinct entities in certain cases “Public Officers” holding ‘Public offices” in the “Public Service”. This includes corporation sole or public bodies corporate or incorporate, See IBRAHIM v. J. S. C. (1998) 14 N. W. L. R. Pt.584 pg.1 at 38; (1998) 12 SCNJ 259 P.259 at 272.

Where a law prescribes a period for instituting an action, proceeding cannot be instituted after that period OBIEFUNA V. OKOYE (1961) 1 All N. L.R. pg.357 P.N. UDOH V. SUNDAYABERE (2001) 5 S. C. N. J. 274.

In the SCNJ report His Lordship Iguh, JSC held thus in the case of IBRAHIM V. JSC (supra) –

“It suffices to state that a statute of limitation, such as the Public Officers (Protection) Law Cap. 111 Vol. 3, Laws of Northern Nigeria, 1963 removes the right of action, the right of enforcement and the right to judicial relief in a Plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, that is to say, if such a cause of action is instituted outside the three months.

His Lordship continued at line 32-37 thus-

“The general principle of law is that where a statute provides for the institution of an action within a prescribed period proceedings shall not be brought after the time prescribed by such statute.

Any action that is instituted after the period stipulated by statute is totally barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law.’

It is pertinent to note that the law interpreted in IBRAHIM V. JSC is in pari material with the Act in this case.

Niki Tobl, JCA (as he then was) in AINA V. JINADU (1992) 4 NWLR Pt. 233 P. 91 said –

‘The determination of when the cause of action arose in the light of the factual position is a fairly slippery matter”,

His Lordship went on to say at page 110-

“In order to determine whether an action is statute barred or not, the court must be involved in the exercise of calculation of years, months and days, to the minutest detail. It is really an arithmetic exercise, which needs a most accurate answer …,”

The cause of action in this matter arose on 28/2/85 when the Respondent’s appointment was terminated. He had till the 28th day of May 1985 that is three months in calendar days to file his action. He waited for almost six years to file, this action. It is apt to note that the relationship between the parties was governed by specific statute and not by common law. It was a contract with statutory flavour, See BAMIGBOYE V. UNILORIN (1999) 6 SCNJ 295. Theirs was not just a simple contract between individuals in which the general statute of limitation would apply, but a contract between the Respondent as a “Public Officer” – an individual and a natural person and the Appellant- a Federal Government Agency which is a “public service”.

In the circumstances, by the operation of 8.2(a) of the Public Officers Protection Act, the action or the proceedings commenced by the Respondent outside the three months period is totally barred as the right of the Respondent – the injured person to commence the action has been extinguished by law, A cause of action no longer exists.

The Respondent waited for nearly six years before deciding to have his day in court. Needless to say, he left it too late. The first issue is resolved in favour of the Appellant.

I will go on to decide the other issues raised in this appeal. It is my belief that it is useful and expedient to take argument on and decide other issues raised in the appeal after dealing with the issue of jurisdiction. A court should decide the merit of a case upon all the issues canvassed before it. This is because if this court is reversed on the issue of jurisdiction by the Supreme Court it would prevent the necessity of the Supreme Court remitting the case back to resolve other issues arising from the appeal. See KATTO V. CBN (1991) 9 NWLR Pt.214 P. 126 at 149 per Akpata, JSC.

Issue Two

The second issue for determination is whether a court hearing a suit before the commencement of Decree 107 of 1993 ceases to have such jurisdiction thereafter.

Learned Appellant’s counsel submitted that a court entertaining a suit before the coming into effect of Decree 107 of 1993 loses its jurisdictional power immediately the decree came into effect. In essence, the State High Court had lost its powers to hear the matter which by operation of law had been transferred to the Federal High Court. He submitted that the jurisdiction of a court to entertain a suit is different from the law applicable at the time of filing of a suit. Whereas the law in existence at the time of filing a suit is applicable to the suit throughout the hearing of the suit, a statute can remove the suit from the court entertaining such a suit. He further submitted that S. 230(1)(q)(r) & (s) of Decree 107 of 1993 confers jurisdiction exclusively on the Federal High Court in the matter at the time the State High Court heard and determined the case. The Appellant being a Federal Government agency came under the Decree.

In this present case, the Writ of Summons was filed by the Plaintiff/Respondent on 25/2/1991, thereafter there were several amendments by both parties. The Plaintiff/Respondent, apart from severally amending his Statement of Claim, also amended the Writ of Summons on 14/10/95 (pages 56-61, the Record of Proceedings). This amendment was made two years after Decree 107 of 1993. The hearing of the suit did not commence until 23/5/96 -that is over a year after the amendment of the Writ of Summons and over three years after the suit was filed.

He pointed that as at 23/5/96 when hearing began before the court below, the court had lost jurisdiction to hear and determine the matter. He cited OLUTOLA V. UNIVERSITY OF ILORIN (2005) All FWLR Pt.245115 at P.1184. He also cited the following cases – UNIVERSITY OF ABUJA VS. OLOGE (1996) 4 NWLR Pt. 455 at 706, 709; ALI VS. CBN (1997) 4 NWLR Pt. 498, 192; EGYPT AIR VS. ABDULLAHI (1997) 11 NWLR Pt. 528, 179; MADUKOLU Vs. NKEMDILIM (1962) 2 All NLR 587 at 595; OJUKWU VS. ONYIABO (1991) NWLR Pt. 203 at 317; FAWEHINMI VS. AKILU (1998) 4 NWLR Pt.88, 370; ANI VS. INLAND REVENUE (1996) 4 NWLR Pt. 440, 101; ADIGUN VS. A.G, OYO STATE (1987) NWLR Pt. 53 678 at 682.

At the trial court the Appellant by motion on notice filed on 18/12/97 had applied for an order dismissing the suit for incompetency and lack of jurisdiction, Counter-affidavit was filed and the motion argued. The learned trial judge in his considered ruling dated 24/4/98,relied on the opinion of Opene, JCA in7UP BOTTLING CO. LTD. VS. ABIOLA & SONS BOTTLING CO. (1996) 7 NWLR Pt. 403 P.714 at 741-745 his Lordship held as follows –

“in view of/he fact that Decree 107 of 1993 does not make any provision for the pending cases, it is deemed not to affect any pending case.

I am on the view that the present suit being a pending case before the commencement of Decree 107 of 1993 is not affected by the said Decree.

Since the Plaintiff herein filed his Writ on 25/2/91, a period of more than two years before Decree 107 of 1993 came into effect without being retrospective, I hold that this case is properly before this court and that the court has the jurisdiction to entertain it.’

The learned trial judge then proceeded with the hearing of the suit. In his judgment dated 30/7/04 the learned trial judge confirmed his earlier position as follows-

“Although a party is entitled to raise the issue of jurisdiction at any stage of the proceedings and as many times as possible, there are no new reasons why this court should depart from its ruling of 24th April, 1998. I stand by that decision and hold that the court can competently adjudicate upon the subject matter of this suit,’

In this case, the action was instituted in 1991 before the promulgation of Decree 107 of 1993. Our attention has been drawn to the case of OLUTOLA V. UNILORIN (2004) 18 NWLR Pt. 905 P.416 decided by the Supreme Court in 2004. The decision in that case contradicts the earlier decision of the Supreme Court in OHMB V. GARBA (2002) 14 NWLR Pt. 788 P.538. Both Olutola v. Unilorin supra and OHMB v. Garba have facts similar in this con to the facts of this case, In OHMB v. Garba, the Supreme Court coram Uwais CJN, Kutigi, Ogundare, Mohammed, Kalgo, JJSC were unanimous in holding that Decree 107 of 1993 had no retroactive effect and could therefore not affect the jurisdiction of the State High Court since the Plaintiffs had acquired their right to sue in the State High Court when the cause of action arose, the suit was filed and hearing started before the promulgation of Decree 107 of 1993. The learned Justices of the Supreme Court even though agreed that Decree 107 of 1993 was essentially an amendment to the 1979 Constitution refused to give it retroactive effect notwithstanding that it came into effect during the pendency of the trial. Thus it is safe to say in OHMB V. GARBA the Supreme Court held that the applicable law for determination of an action is the substantive law for all intents and purposes existing at the time the cause of action arose and hearing of the case commenced; thus changes in law will not affect accrued rights and obligations unless the change is specifically made retroactive, The cases of ADIGUN V. AYINDE (1993) 8 NWLR Pt. 313 P. 516; ATT. GEN. KWARA VS. OLAWALE (1993) 1 NWLR Pt. 272 P. 645; ALH. ABUDU AKIBU V. ALH. ODUNTAN (2001) 7 SCNJ 189 were followed.

Whereas the Supreme Court two years later held a contrary view in OLUTOLA V. UNILORIN Coram: Onu, Katsina-Alu, Ejiwunmi, Tobi and Edozie, JJSC that the impact of Decree 107 of 1993 on the jurisdiction of the Federal High Court per Ejiwunmi, JSC in the lead judgment is as follows-

“What this means is that provisions of 1979 Constitution, which gave unlimited jurisdiction to State High Courts to hear and determine both civil and criminal causes automatically lapsed or ceased to have effect or are impliedly repealed and abrogated by Decree No. 107 of 1993. See Onyema & Ors. v. Oputa & Ors. (1987) 3 NWLR (1987); 3 NWLR (Pt.60) 259, (1987) 2 NSCC 900 and Flannagan v. Shaw (1929) 3 K.B. 96 at 105 where Scrutton LJ. stated the principle of implied repeal by plain repugnancy- The provisions of Decree No. 107 of 1993 and those of the 1979 Constitution can not stand together . (underlining mine)

The learned Justices of the Supreme Court in Olutola v. Unilorin made a clear distinction between the law applicable to a cause of action and the law applicable to the determination of the jurisdiction of a court. The learned Justices of the Supreme Court opined as follows at page 464-466 of the NWLR per Tobi, JSC

“The law which supports a cause of action is not necessarily co-existence with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the rime the cause of action arose whereas the jurisdiction of the court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard, In the instant case, it was puerile for the Appellant to argue as he did that the cause of action arose when the State High Court had jurisdiction over the matter, regardless of the fact that when the action was heard, the court had been divested of such power by reason of the amendment of Section 230(1) of the 1979 Constitution by Decree 107 of 1993. (Adah v. NYSC (2004) 13 NWLR (pt. 891) 639 referred to).

” ..In the Instant case, it was common ground that the cause of action arose in October, 1989 and the Appellant filed an action on 13th January, 1993. Decree No. 107 of 1993 which vested in the Federal High Court the jurisdiction to entertain the matter came into effect on the 17th of November, 1993. Although the action was properly filed at the Kwara State High Court in January, 1993, that court had no jurisdiction to entertain the matter as from 17th November, 1993 when Decree 107 came into effect. Accordingly, the Kwara State High Court had no jurisdiction to deliver the judgment which judgment was delivered some thirty months after it ceased to have jurisdiction to deal with the matter.’

My Lord went further to say-

“The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action as determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard,”

My learned brothers and I are torn between the two judgments of the Supreme Court. We are aware that Olutola v, Unilorin did not consider OHMB v. Garba, which earlier case considered S. 6(1) of the Interpretation Act Cap. 192 Laws of the Federation. We are however each at liberty to pick and choose which precedent to follow.

S.6(1} of the Interpretation Act states as follows –

“6.(1) The repeal of an enactment shall not-

(a) revive anything not in force or existing at the time when the repeal takes effect:

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment:

(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;

(d) affect the penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment:

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be Instituted, continued or enforce, and such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed,’ (underlining mine for emphasis)

The learned Justices of the Supreme Court in OHMB v. Garba were of the opinion that Decree 107 of 1993, a constitutional amendment was not retroactive and could not affect existing vested rights before its promulgation, including the right of the Plaintiffs to continue the action in the Court where it was initially filed. Justice Kalgo at page 160 of the SC report held thus:

‘The Court of Appeal was clearly wrong in its interpretation of the provisions of Section 230 of Decree No. 107 of 1993. i.e. the Constitution (Suspension and Modification) Decree, 1993 (hereinafter referred to as the Decree) as it applied to the instant appeal, This Decree came into the effect on the 17th of November 1993 and this suit giving rise to this appeal was instituted in the Kano High Court on the 20th of November 1992, almost one year before the Decree came into operation. The Decree has no transitional provisions dealing with pending cases, or anything to show that it has retrospective effect of anything to that effect, Therefore, following the provisions of Section 6 of the Interpretation Act (Cap, 192 of the Laws of the Federation 1990) the jurisdiction of the High Court of Kano State to entertain this suit, which was pending before, the Decree came into effect, was not ousted by the provisions of the said ‘Decree. See University of Ibadan v. Adamolekun (1967) 5 NSCC 210; Colonial Sugar Refining Company Limited v, Irving (1905) A.C. 369. Therefore the case was entertained by the High Court Kano by virtue of Section 236 of the 1979 Constitution, and the appeal to the Court of Appeal which was not heard, should now be heard on its own merit:

One is bound to follow the opinion of the learned Justices of the Supreme Court, as they have rightly held in OHMB v. Garba, that the vested rights of the parties cannot be affected by subsequent legislation. To my mind, the vested rights of the parties would be rights vested in them in law and equity when the cause of action arose, Thus in law, a man may not have retroactive rights and privileges and cannot be subject to retroactive sanctions. It is one of the tenets of jurisprudence.

It is humbly opined that the change in law contained in S.230(1)(q)(f) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 even though has not affected the accrued or vested rights of the Respondent but has only changed the venue of the trial to another court cannot be retroactive. I have pondered on the dictum of Niki Tobi JSC concurring with the lead judgment in Olulota v. Unilorin where he referred to the Supreme Court’s earlier decision in Adan v. NYSC (2004) 13 NWLR Pt. 891 P.639, he said inter alia at page 464 of Part 905 –

“On appeal to this court it was held (per Uwaifo) JSC, that the law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the court which entertains the suit founded on that cause of action.

The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the court to entertain an action as determined upon the state of the law conferring jurisdiction at the point in time the action was instituted and heard.” (underlining mine for emphasis)

I am aware of the Supreme Court decision in Alh. Karimu Adisa v. Emmanuel Oyinwola & Ors (2000) 6 SCNJ 290 where it was held that it is essential that the court be conferred with jurisdiction from the time action is initiated up to the time when judgment is delivered. Jurisdiction could be attacked if it existed at the time judgment is delivered.

I am also aware of the decision of the Supreme Court in NEPA v. Edegbero and Adah v. NYSC supra. A decision is authority for the law based on the facts it decides. In Adah v. NYSC and NEPA v. Edegbero, the suits were filed after the promulgation of Decree 107 of 1993.

I was initially enticed by the doctrine of implied repugnancy as espoused in Olutola v. Unilorin. However a rule of doctrine cannot override express provisions of the law, The Interpretation Act S.6(1) provides for the survival of pending proceedings where there are no specific provisions for abatement of such pending proceedings. It must be noted that the Interpretation Act is a constitutional provision. S. 318(4) of the 1999 Constitution (S.277(4) of the 1979 Constitution is applicable to this case) provides that the Interpretation Act shall apply for the purposes of interpreting the provisions of the constitution. This issue had been settled long ago in the case of University of Ibadan v. Adamolekun (1967) 5 NSCC 210, where the case of Colonial Sugar Refining Co. Ltd v. Irving (1905) A.C.369 was referred to.

The learned Justices of the Supreme Court in OHMB v. Garba were of the opinion that Decree 107 of 1999 a constitutional amendment was not retroactive and could not affect existing vested rights before its promulgation. Suffice it to say that we prefer the former decision. The compelling reason for me being the fact that Olutola v. Unilorin did not consider the implication of S. 6(1) of the Interpretation Act. The rationale in OHMB vs. Garba was that an abatement provision must not be implied unless expressly provided for. One of the canons of interpretation is that effect should be given to ordinary plain meaning of words when they are unambiguous and clear without resulting to external aid or importing words into the statute. See Chief Okotie-Eboh v. Chief James Ebiowo Manager & Ors (2004) 12 SCNJ 139. In OHMB v. Garba the learned Justices of the Supreme Court considered the fact that Decree No. 60 of 1991 contained abatement provisions. The absence of the abatement provision in the later Decree 107 of 1993 meant that it had been repealed by implication. It must be borne in mind that one of the tenets of interpretation of statute is the need not to impute an intention to contravene the constitution to lawmakers and to adopt a construction which avoids inconsistency with the constitution. See Chief L.U. Okeahialam & Anor v. Nze J. U. Nwamara & Ors (2003) 7 SCNJ 132.

The interpretation Act is a provision of the Constitution, The Decree 107 of 1993 is also a constitutional amendment, thus recourse must be had to the constitution in interpreting same. S. 6 (1) of the Interpretation Act cannot be ignored. The decision of Kawu, J. on this issue appears to be the right one. The 2nd issue is resolved in favour of the Respondent in the circumstance.

Issue Three

The third issue for determination is whether or not the Respondent was given fair hearing before his appointment was terminated by the Appellant. Learned Appellant’s counsel argued that the procedure adopted by the University was in substantial compliance with the 1999 Constitution and S.15 of the Unilorln Act with regard to the relevant principles of fair hearing, he cited BAMIGBOYE V. UNILORIN (1991) 8 NWLR Pt. 2071 at 10.

On this issue, the learned trial judge was of the following view-

‘First, comments of members of the council on the draft account submitted by the Plaintiff were made while the Plaintiff was sent out of the meeting. Just as you cannot shave a man’s head in his absence, so also you cannot condemn him in his absence and equate that to fair hearing.

I also observe that the Plaintiff never apologized to the council for poor performance of assigned responsibilities as stated by DW2. Rather he apologized to council in case the council got the wrong impression that he, the Plaintiff was out to either misinform or mislead the council.

Again it will be observed in Exhibit D3 that the Defendant never decided to terminate the appointment of the Plaintiff as a result of his preparation of the Defendant’s account at the meetings of 24/25 January, 1985, or at any other meeting.

I am satisfied that the Plaintiff was not afforded a hearing as envisaged by S. 15(1) of Act No. 81 of 1979 before the Defendant proceeded against him under S.15(3)(d) of the same Act.

The issue at stake here is whether or not the Appellant took the appropriate statutory steps in terminating the appointment of the Respondent. The learned trial judge in my view was right in his decision that the Appellant did not give the requisite notice of misconduct to the Respondent to provide the legitimate foundation for the subsequent disciplinary decision to terminate his appointment. S.15(1) provides for a mandatory procedure to be followed by the University. If a formal query is issued, the Senior Staff Disciplinary and Appeals Committee must be called into the issue to examine the defence of the Respondent and make appropriate recommendation to the council. S.15(1) of the Unilorin Act provides as follows –

’15(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University, other than the vice-chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall-

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

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

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

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

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

The peremptory termination of the Respondent’s appointment by the council, side stepping the full disciplinary procedure stipulated by S.15(1) of the Unilorin Act in my opinion amounts to lack of fair hearing, See IDERIMA V. RIVERS STATE CSC (2005) 7SC Pt. 111 P. 135 at 140-141; FCSC V. LAOYE (1989) 2 NWLR Pt. 106 P. 652 at 714; OLANIYAN V. UNILAG (1985) 2 NWLR Pt. 9 P. 599.

The Hon. Justices of the Supreme Court in OLANIYAN V. UNILAG (1985) 2 NWLR P. 9 P. 599 were unanimous in holding that where there was no imputation of misconduct, the University could terminate the employment of their senior staff after requisite notice, However whereas in this case there is allegation or imputation of misconduct inability to efficiently perform the functions of his office, the provisions of .17 of the Unilag Act (in this case .15 of the Unilorin Act) must be meticulously followed, The third issue is also resolved in favour of the Respondent.

As held earlier in this appeal, at the time the Respondent instituted his action nearly six years after his appointment was terminated, the cause of action had ceased to exist.

It is also pertinent to note that it is doubtfully the circumstances taking into account the fact that he collected all his severance entitlements without any complaint if he could have succeeded in the 2nd leg of his claim that his appointment was still subsisting and he was entitled to his emoluments. In the circumstances the appeal is meritorious and it is hereby allowed.

I will make no order as to costs since this appeal was not defended.

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Other Citations: (2006)LCN/2110(CA)