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PROFESSOR E. O. ADEKOLU JOHN V. UNIVERSITY OF ILORIN

Legalpedia Citation: (2012) Legalpedia (CA) 10110

In the Court of Appeal

HOLDEN AT ENUGU

Sun Jun 3, 2012

Suit Number: CA/IL/78/2009

CORAM



PARTIES


PROFESSOR E. O. ADEKOLU JOHN APPELLANTS


UNIVERSITY OF ILORIN RESPONDENTS


AREA(S) OF LAW



SUMMARY OF FACTS

This is an appeal against the judgment of the Federal High Court sitting in Ilorin. The facts are that, the Plaintiff, hereinafter referred to as the Appellant, was a lecturer in the Department of Epidemiology and Community Health in the Faculty of Health Sciences of University of Ilorin, hereafter referred to as the Respondent. The institution of the matter was as a result of the termination of appointment of the Appellant by the Respondent due to alleged serious misconduct by the Appellant. In 1990, the Appellant applied to the Respondent for permission to proceed on sabbatical leave which application was disapproved by the Vice Chancellor of the Respondent. In 1991, the Appellant re-applied along with two other staff of the department. The Appointment and Promotion Committee of the Respondent considered the application, directed the Dean of the Faculty of Health Sciences to rate, and rank the staff in order of proceedings on the sabbatical leave for the purpose of considering those that could be released in order not to jeopardize the departmental activities. The Appellant was adequately informed, that he was ranked third, and further that he could not proceed on sabbatical leave with one other person both of whom were clinically qualified, and his reaction on the matter was being expected for the purpose of advising the Vice Chancellor accordingly. The Appellant proceeded on the sabbatical leave without any approval from the Respondent and without even reacting to the memo. When it was discovered that the Appellant was absent from duties, some letters were written to him restating the fact that the sabbatical leave was not approved but the Appellant was adamant and refused to report back to duties as expected. Queries were eventually issued to the Appellant, which he refused to honour with an answer. Consequently, the Appellant’s employment was terminated first by dismissal pursuant to a Decree of Federal Government and later converted to retirement by the magnanimity of the Respondent’s Council. At the trial, the Appellant testified in support of his claim, and tendered a number of exhibits. The Respondent called a sole witness. The Appellant testified for himself and tendered a nimber of exhibits.At the end of the trial, Counsel addressed the Court, sequel to which the judgment of the Court was delivered and the case of the Appellant was dismissed in its entirety, hence this appeal.


HELD


Appeal Dismissed.


ISSUES


Whether the Appellant was given approval to proceed on sabbatical leave? Whether the Defendant/Respondent complied with the provisions of section 15 of University of Ilorin Act, section 36 0f the 1999 Constitution of the Federal Republic of Nigeria and rule of natural justice in terminating the Plaintiff/Applicant’s appointment?


RATIONES DECIDENDI


COURT, PRACTICE AND PROCEDURE


FILING FEES – WHETHER PAYMENT OF FILING FEES IS A CONDITION PRECEDENT TO THE VALIDITY OF A COURT PROCESS
“No doubt, in law, it is the filing fees that breathe life into the process filed, except where filing fees is waived, as in the case of official process from Government and Government departments. See the case of Mr. Ibiwoye Anu Ayodiji And Anor V. Senator Simeon Sule Ajibola And Ors. an unreported decision of the Court of Appeal Ilorin Division in EPT/CA/IL/SEN/9/2011 delivered on 14/12/11 pages 10 – 11; Dr. Abdulrasheed Alanamu Vs. Yakubu Agbo And 2 Ors. Appeal No. CA/IL/26/2011 delivered on 26th day of April, 2012 and Mr. Joseph Adebayo Adeloyin Vs. Mr. Taiye Onitide Appeal No. CA/IL/25/2011 delivered on 17th day of May, 2012.”


INTERPRETATION OF STATUTE


INTERPRETATION OF DOCUMENT – MODE OF INTERPRETATION OF THE CONTENTS OF A DOCUMENT
“It is now settled beyond peradventure that where the content of a document is clear, express and unambiguous, Court should interpret such document literally. See the case of Dapianlong V. Dariye (2007) 8 NWLR (PT. 1036) 239 AT 412, PARA E.”


FAIR HEARING, LABOUR LAW, PRACTICE AND PROCEDURE


FAIR HEARING – WHETHER WRITTEN REPRESENTATION CONSTITUTES SUFFICIENT OPPORTUNITY TO BE HEARD
“It is pertinent to pause here and state that an opportunity to be heard needs not be oral, it is sufficient if opportunity to make written representation was given as was decided in the case of Umoh VS. I.T.G.G. (2001) 4 NWLR (PT. 703) 281 at 300.
In the case of Alh. Lasisi Yusuf Vs. Union Bank Of Nigeria Ltd. (1996) 6 NWLR (PT. 457) P. 632 AT 644, PARAS F – G, 640 PARA. E. the Appellant as plaintiff sued the Respondent at the High Court, Kukawa, Bornu State claiming a declaration that his dismissal by the Respondent was wrongful, reinstatement, arrears of salary and damages. The Appellant was dismissed for gross misconduct and he appealed to the Court of Appeal, which affirmed the decision of the lower court, and he further appeared to the Supreme Court. The appeal to the Supreme Court was unanimously dismissed. The apex court in dismissing the appeal held thus;
‘Before an employer can dispense with the services of his employee under the common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. In the instant case, the Respondent afforded the Appellant a full opportunity of fair hearing before dispensing with his services (pp. 644 para F – G, 646 para E.’”


LABOUR LAW


TERMINATION OF EMPLOYMENT – CONDITION PRECEDENT FOR THE TERMINATION OF EMPLOYMENT WITH STATUTORY FLAVOUR
“The point I am struggling to make is that under the common law, to terminate an employee all you need to do is to afford the employee an opportunity to be heard but in an employment with statutory flavour, one has to comply with conditions set out in the statute before such an employee’s appointment is terminated.”


LABOUR LAW, STATUTE, PRACTICE AND PROCEDURE


TERMINATION OF EMPLOYMENT – REQUIREMENT FOR THE REMOVAL OF AN EMPLOYEE UNDER THE UNIVERSITY OF ILORIN ACT
“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)……….
(b)……….
(1)……….
(2)……….
(3)……….
(4)……….
(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of section (1) of this section to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.”
The provisions of the section highlighted above are very clear and unambiguous and no aid is required for their interpretation. An employee such as the Plaintiff/Respondent could be removed on the ground of misconduct or in inability to perform the functions of his office or employment. Such a person must be given an opportunity to defend himself/or herself before he/she is removed from his office or employment”.


ESTOPPEL, FAIR HEARING, PRACTICE AND PROCEDURE


ESTOPPEL BY CONDUCT – WHETHER PARTY WHO FAILED TO MAKE USE OF OPPORTUNITY TO BE HEARD MAY TURN AROUND TO COMPLAIN
“The Appellant having furnished his contact address to the Respondent, and having acknowledged the receipt of Exhibits 22, 25 and 26 sent to that address and having even responded from that address vide Exhibit 27, he is stopped from denying the receipt of Exhibit 28 sent to the same address.
This brings me to the examination of section 151 of the Evidence Act which provides thus:
”When one person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and is acted upon such belief, neither he nor his representatives in interest shall be allowed in any proceedings between himself and such person or such person representative interest to deny the truth of that thing.”
Consistent with the provisions of the Evidence Act highlighted above, I am of the strong view that the Plaintiff/Appellant is estopped from denying the receipt of Exhibit 28, the query that was sent to him through the address he himself left with the Defendant/Respondent as his contact address and is deemed to have received it. I am also of the view that the Appellant is just denying the obvious just to avoid the consequence of failing to make use of the opportunity given to him by the Respondent herein. See also the case of Alao vs. V.C. University of Ilorin (2008) 1 NWLR (Pt. 1069) 421 at 463 para E – H per Sankey JCA.”


ADMINISTRATIVE LAW, STATUTE, PRACTICE AND PTOCEDURE


POWERS OF THE UNIVERSITY OF ILORIN – WHETHER THE DISCIPLINARY POWERS OF THE UNIVERSITY OF ILORIN CAN BE EXERCISED THROUGH INSTRUMENT SIGNED BY ITS OFFICER
“Section 15 of the University of Ilorin Act which states the disciplinary power of the Respondent is explicit on the fact that such power could be exercised through instrument signed by an officer of the Respondent. See Section 15(5) of the Act, which states:
“15(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of Section (1) of this section to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.”
Undoubtedly, from the foregoing provision of sub-section 5 that the council’s power stated in sub-section 1 could be exercised through any officer who would sign the instrument and serve it on the person concerned. What is more the Registrar who by virtue of his office is the secretary to the council is more than competent to issue such a letter. He is in the best position to convey the decision of the council. Paragraph 5(2) of the first Schedule to the Respondent’s Act reads thus:
”(2) The person holding the office of registrar shall by virtue of that office be Secretary to the council, the senate, congregation and convocation.”
It is crystal clear from the foregoing that the Registrar is part and parcel of the council and needs not state is his letter that he is acting on the council’s direction. Therefore Exhibit 9 cannot be nullified on this score as was decided in the case of Rajiv V. University of Ilorin (2007) All FWLR (pt. 345) 325 at 338.”


CASES CITED


Not Available


STATUTES REFERRED TO


Constitution of the Federal Republic of Nigeria 1999|Evidence Act|University of Ilorin Act|


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