CORAM

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HON. I.S. GALADIMA – JUDGE

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PARTIES

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PETER M. AREN

APPELLANTS 

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1. PLATEAU STATE COLLEGE OF HEALTH TECHNOLOGY ZAWAN

2. GOVERNOR OF PLATEAU STATE

3. ATTORNEY GENERAL OF PLATEAU STATE

4. MINISTRY OF HIGHER EDUCATION PLATEAU STATE

5. HONOURABLE AUGUSTINE PWAKIM CHOJI

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, LABOUR LAW, STATUTORY EMPLOYMENT, ADMINISTRATIVE LAW, CIVIL PROCEDURE, EVIDENCE LAW, CONSTITUTIONAL LAW, STATUTORY INTERPRETATION, ULTRA VIRES, FIXED-TERM APPOINTMENT, GOVERNING COUNCIL POWERS, ESTOPPEL, WRONGFUL REMOVAL, REINSTATEMENT

 

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SUMMARY OF FACTS

The Claimant, Peter M. Aren, was initially appointed Acting Registrar of the 1st Defendant, Plateau State College of Health Technology Zawan, by a letter dated 22nd June 2020 from the Provost (Exhibit C1). By a further letter dated 13th October 2020 from the Provost’s office, his appointment was confirmed on the recommendation of the Expanded Management Advisory Committee (EMAC) (Exhibit C2). On 16th October 2020, the Provost issued Exhibit C3, formally appointing him as Substantive Registrar for an initial period of four years effective 15th October 2020, terminable on 14th October 2024, at a consolidated annual salary of N5,010,534, stating that the appointment was made “in line with section 14(3) of the Plateau State College of Health Technology Law, 2003.”

The Governing Council of the 1st Defendant had been dissolved in May 2019 — some fourteen months before the Claimant’s substantive appointment. There was no Governing Council in office at the time Exhibits C1, C2, and C3 were issued. The EMAC functioned as the operative advisory and administrative body in the Council’s absence, and its members were drawn from the same pool as Governing Council members. The institution continued to function during the Council’s absence, with both DW1 and DW2 (the Defendants’ witnesses) confirming this under cross-examination.

On 25th January 2021, barely three months after the Claimant’s appointment, the 1st Defendant advertised the Registrar’s post in the Leadership Newspaper (Exhibit C4). The advertisement was placed by the same Provost, Dr. Toma Reng Ali, who had signed the Claimant’s appointment letters. The Claimant testified that he was induced to apply and participate in the selection process on the understanding that it was a formality. Interviews were conducted on 6th and 7th January 2022.

On 22nd February 2022 — while the Claimant was still within his four-year statutory term — the former Governor of Plateau State appointed the 5th Defendant, Hon. Augustine Pwakim Choji, as Substantive Registrar of the 1st Defendant (Exhibit C6). On 28th February 2022, a handover letter was delivered to the Claimant directing him to hand over. On 11th March 2022, the Claimant’s solicitors wrote protesting the purported appointment and asserting the subsisting tenure. Queries were issued to the Claimant on 6th April 2022 and 23rd May 2022, regarding his alleged failure to hand over. On 6th June 2022, the 1st Defendant suspended the Claimant.

The Claimant filed suit on 13th March 2022 (further amended complaint on 13th July 2022), claiming reinstatement, declarations of unlawful removal, injunctions, back salary for March 2022 to October 2024 (N13,375,840), furniture allowance (N1,200,000), exemplary/aggravated damages (N10,000,000), and costs (N2,000,000).

The Defendants’ case was that the Claimant was never validly appointed as Section 14(3) of the Plateau State College of Health Technology Law 2003 vests the appointment power exclusively in the Governing Council, and no Governing Council existed at the time of the appointment. They also argued that by advertising the Registrar’s vacancy, facilitating the recruitment process, and himself applying for the post, the Claimant’s conduct estopped him from asserting a continuing incumbency. They contended that the former Governor’s appointment of the 5th Defendant was a proper exercise of discretionary authority.

The court, after hearing evidence on the resumed trial (commenced afresh before Galadima J from 27th January 2025 following the elevation of the previous judge), found that the Claimant’s appointment was void ab initio as it was not made by the Governing Council as required by Section 14(3) of the 2003 Law. The suit was dismissed in its entirety.

 

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HELD

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1. The Claimant’s appointment was void ab initio. Section 14(3) of the Plateau State College of Health Technology Law 2003 vests the power to appoint the Registrar exclusively in the Governing Council. When Exhibits C1, C2, and C3 were issued, no Governing Council was in office — it had been dissolved in May 2019. The letters were issued by the Provost on the recommendation of EMAC and the Appointment and Promotion Committee. These bodies had no statutory authority to make the appointment. Merely invoking Section 14(3) in Exhibit C3 did not cure the fundamental defect. No ratification or Council resolution was ever produced. The appointment was therefore void and never created any legally enforceable employment rights.

2. Under Section 14(3), only the Governing Council had power to appoint the Registrar. EMAC, MAC, and the Governor had no such power. The 5th Defendant’s appointment by the former Governor on 23rd February 2022, without a valid Governing Council resolution, was also void ab initio.

3. Since the Claimant’s appointment was void from the outset, there was no legally subsisting contract capable of being lawfully or unlawfully terminated. The question of wrongful removal therefore did not arise. The Claimant’s complaint that his removal was precipitous and capricious was dismissed.

4. The doctrine of estoppel by conduct did not apply against the Claimant. Although he participated in the fresh recruitment process, his simultaneous insistence on a subsisting four-year term and his continuous performance of Registrar duties, receipt of salary, and correspondence asserting his tenure did not constitute a clear, unequivocal representation that the office was vacant. The estoppel defence failed.

5. Since the appointment was void ab initio, no rights ever vested in the Claimant. One cannot enforce rights that never existed. All claims — reinstatement, declarations, injunctions, back pay, allowances, and damages — were refused. The suit was dismissed in its entirety and judgment entered for the Defendants.

 

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ISSUES

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1. Whether Exhibits C1 to C3 established that the Claimant was validly appointed Acting Registrar and thereafter Substantive Registrar for a fixed four-year term pursuant to Section 14(3) of the Plateau State College of Health Technology Law 2003, without valid revocation?

2. Whether any body other than the Governing Council — specifically EMAC, MAC, or the Governor — had statutory authority to confirm or appoint the Registrar, and whether the 5th Defendant’s appointment on 23rd February 2022 was void ab initio?

3. Whether the handover directives, the Claimant’s suspension on 6th June 2022, and the appointment of the 5th Defendant constituted a lawful termination of the Claimant’s fixed-term contract, and whether any misconduct was established to justify premature removal?

4. Whether the Claimant was entitled to any of the reliefs sought — declarations, reinstatement, back pay, allowances, exemplary damages, costs and interest?

 

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RATIONES DECIDENDI

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WHERE A STATUTE PRESCRIBES THAT THE REGISTRAR OF AN INSTITUTION SHALL BE APPOINTED BY THE GOVERNING COUNCIL, NO OTHER BODY HAS AUTHORITY TO MAKE THAT APPOINTMENT — ANY APPOINTMENT MADE BY A DIFFERENT BODY IS ULTRA VIRES AND VOID AB INITIO

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“Under Section 14(3), the power to appoint the Registrar lies exclusively with the Governing Council. Although the Provost, EMAC or A&PC may review candidates and make recommendations, they have no statutory authority to make the actual appointment. Appointment is a formal legal act that must be undertaken by the body specifically empowered by the statute. Consequently, if the Claimant was never formally appointed by the Governing Council — even if one might argue the Council could later ratify such an appointment — but was instead appointed by the Provost with committee approvals, that appointment would almost certainly be invalid for failing to comply with the statute.” – Per I. S. Galadima, J.

 

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ANY STATUTORY POWER TO APPOINT OR REMOVE OFFICERS MUST BE EXERCISED STRICTLY IN ACCORDANCE WITH THE ENABLING LAW — FAILURE TO ADHERE TO THE PRESCRIBED PROCEDURE RENDERS THE APPOINTMENT OR REMOVAL NULL AND VOID FROM ITS INCEPTION

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“It is a fundamental principle of Nigerian administrative law, firmly established by both the Supreme Court and the Court of Appeal, that any statutory power to appoint or remove officers must be exercised strictly in accordance with the enabling law. Failure to adhere to the prescribed procedure renders such an appointment or removal null and void from its inception, or void ab initio. This principle ensures legality, prevents arbitrary actions, and upholds the rule of law in public administration and corporate governance.” – Per I. S. Galadima, J.

 

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THE DE FACTO OFFICER DOCTRINE CANNOT SUPPLY THE MISSING LEGAL AUTHORITY FOR AN APPOINTMENT — MERE PERFORMANCE OF DUTIES AND RECEIPT OF SALARY DO NOT CURE A DEFECTIVE APPOINTMENT PROCESS OR VALIDATE AN APPOINTMENT THAT WAS VOID FROM THE OUTSET

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“Even though the Claimant remained in office and received emoluments, the de facto officer doctrine — which may protect third parties who deal with an officeholder — cannot supply the missing legal authority for his appointment. As the Court held in College of Education, Ekiadolor v. Osayande (supra), mere performance of duties does not cure a defective appointment process. And because there is no evidence that any Governing Council subsequently endorsed or ratified Exhibits C1–C3 — no minutes, no ratification letter, no fresh council resolution — the Claimant has failed to discharge the burden of proof required to establish a lawful appointment.” – Per I. S. Galadima, J.

 

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WHERE A FIXED-TERM APPOINTMENT IS VOID AB INITIO BECAUSE IT WAS NOT MADE BY THE STATUTORILY REQUIRED BODY, NO LEGALLY SUBSISTING CONTRACT OF EMPLOYMENT WAS CREATED AND NO RIGHTS EVER VESTED — ONE CANNOT ENFORCE RIGHTS THAT NEVER EXISTED

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“Because there was no valid employment contract in place, there was nothing that could lawfully be terminated and no rights ever vested. Accordingly, the Claimant cannot seek reinstatement as Registrar or any related relief — whether declarations of valid tenure, injunctions, or damages — because one cannot enforce rights that never existed…when the main claim fails, all dependent or ancillary claims must also fall.” – Per I. S. Galadima, J.

 

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THE DOCTRINE OF ESTOPPEL BY CONDUCT REQUIRES A CLEAR, UNEQUIVOCAL ACT OR REPRESENTATION BY THE PARTY SOUGHT TO BE ESTOPPED — MERE PARTICIPATION IN A FRESH RECRUITMENT PROCESS WHILE SIMULTANEOUSLY ASSERTING A SUBSISTING TENURE DOES NOT AMOUNT TO SUCH A CLEAR REPRESENTATION

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“Estoppel by conduct — or the ‘blowing hot and cold’ principle — requires a clear, unequivocal act or representation by the Claimant that the office was vacant, on which the Defendants relied to their detriment. His participation in the fresh recruitment exercise, coupled with his simultaneous insistence on an existing term, does not amount to such an act…Given his unwavering assertion of a subsisting contract, the estoppel defence fails.” – Per I. S. Galadima, J.

 

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THE WORD “SHALL” IN A STATUTORY PROVISION IMPOSING AN APPOINTMENT PROCEDURE IMPOSES A MANDATORY OBLIGATION — STRICT COMPLIANCE IS REQUIRED AND THERE IS NO SCOPE FOR DEVIATION

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“We must note that Section 14(3) of the Plateau State College of Health Technology Law, 2003 provides that the Registrar ‘shall be appointed by [the Governing] Council and shall hold office for four years from the date of his appointment.’ The key phrase ‘shall be appointed by [the Governing] Council’ vests the appointment power exclusively in the Council and imposes a mandatory requirement of strict compliance.” – Per I. S. Galadima, J.

 

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JUDICIAL DECISIONS MUST BE FIRMLY ANCHORED IN A THOROUGH ASSESSMENT OF THE EVIDENCE AND ITS LEGAL IMPLICATIONS — A COURT CANNOT INTRODUCE ITS OWN FACTS, SPECULATE, OR RELY ON MATERIAL NOT FORMALLY PRESENTED AT TRIAL

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“As the Court of Appeal held in OROGBEMI v. STATE (2022) LPELR-58185(CA), a court’s findings must derive from evidence adduced by the parties. The court cannot introduce its own facts, speculate, or rely on material not formally presented at trial. Instead, each party bears the burden of setting out its facts in the pleadings and substantiating them with credible proof. Consequently, any judgment, ruling or order must be a logical deduction from those facts and the law applied.” – Per I. S. Galadima, J.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) Plateau State College of Health Technology Law 2003 — Sections 10(1) and (2), and 14(1), (2), and (3) National Industrial Court of Nigeria (Civil Procedure) Rules 2017 Interpretation Act 1964 — Section 11 Administration of Criminal Justice Act 2015 — Section 303

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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1. E. C. Ehimen for the claimant.

2. P.A. Daffi (HAG); Joel Tahvan; Sabo Longji; Shetak Becklang; P.A. Kasham; P.N. Dashak; D.N. Yilji; L.S. Shaibu; C.R. Parlong; Peter Panwal for the defendants.