In The Court of Appeal
(Ilorin Judicial Division)
On Monday, the 4th day of June, 2012
Suit No: CA/IL/78/2009
Before Their Lordships
TIJJANI ABDULLAHI....... Justice, Court of Appeal
ITA GEORGE MBABA....... Justice, Court of Appeal
OBANDE FESTUS OGBUINYA....... Justice, Court of Appeal
PROFESSOR E. O. ADEKOLU JOHN Appellants
UNIVERSITY OF ILORIN Respondents
TIJJANI ABDULLAHI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Ilorin (coram) P. F. Olayinwola (J) delivered on the 30th June, 2006 wherein his Lordship held inter-alia thus:
"In view of my findings supra I do not see merit in the case of the Plaintiff. It is therefore dismissed in its entirety.
That is my decision."
By paragraph 26 of the Amended Statement of claim of 26/11/03, the Plaintiff now Appellant sought for the following reliefs:
"(1) A declaration that the purported termination of the appointment of the Plaintiff as a professor and Consultant of Community Medicine in the service of the Defendant via a letter No. UI/RO/C.16 of 22nd September, 2000 is contrary to:
(1) Revised Regulations governing the condition of service of Senior Staff, 1994;
(2) Rules of National (sic) Justice and;
(3) Section 36 of the 1999 Constitution and is therefore null and void."
The facts that gave rise to the appeal under consideration as can be gathered from the record of the Court below 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.
By an Amended Statement of claim which could be found at pages 66-70 of the record, the Appellant claimed two reliefs as stated supra.
The institution of the matter as can be gleaned from the reliefs sought by the Appellant 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 and 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 vide a memo UI/FHS/U/159 tendered and admitted as exhibit 6, 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 exhibit 6 as requested.
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. These were admitted as Exhibits 22, 25 and 26, but the Appellant was adamant and refused to report back to duties as expected. Queries were eventually issued to the Appellant vide letters admitted as Exhibits 22 and 28 but to which the Appellant 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 which testimony could be found at pages 58 - 60 and 82 - 91 of the record. The Respondent called a sole witness by the name Titus Agboola Adeyemi who was the principal Assistant Registrar in charge of staff matters of the Respondent whose testimony is at pages 93 - 98 of the record.
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.
The plaintiff/Appellant initially filed a Notice of Appeal at the court of Appeal, Benin Division in view of the fact that the trial Judge was transferred from Ilorin to Benin where he eventually concluded the matter. The Appellate court sitting at Benin declined jurisdiction and accordingly struck out the matter.
The Appellant filed an application for extension of time to appeal dated 4th of June, 2010 and same was heard on 22nd March, 2011, the Court of Appeal, Ilorin Division granted the Appellant leave to file Notice and grounds of Appeal which Notice could be found at pages 129 - 130 of the record. The Appellant then filed the said Notice of Appeal consisting of four grounds from which he distilled two issues for determination. The two issues are as follows:-
"(1). Whether the Appellant was given approval to proceed on sabbatical leave;
(2) 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.
As can be seen from the record, the Appellant's Counsel did not marry the issues to the grounds of appeal filed. However a look at the grounds and the issues, one would be right to say that issue one can be married to ground (i) sub-(ii) (a) (b) and (c) and Issue No. 2 can be married to sub-grounds (iii) and (iv) respectively.
For their part, learned counsel for the Respondent also formulated two issues for determination as follows:
"(1) Whether the appellant was given approval to proceed on sabbatical leave.
(2) Whether the appellant's appointment was not properly terminated.
Learned counsel for the Respondent, also raised a preliminary objection which he argued in his brief spanning over ten pages without filing a separate notice of objection as he is enjoined to do under our Rules of court. The issue of firing a separate notice of objection will be re-visited in the course of writing this judgment.
Let me now say, that, on the 12th of March, 2012, when the appeal came before us for hearing, learned Counsel for the Appellant, Mr. R. A. Odihi adopted the Appellant's brief dated 4th of October, 2007 and filed on 6th October, 2010. He also adopted a Reply-Brief in response to the Respondent's brief dated 5/03/2012 and filed 6/03/2012. He adopted the two briefs as their arguments in this appear and urged the court to allow the appeal and set aside the judgment of the lower Court.
Learned counsel for the Respondent, Mr. Yakub Dauda, adopted the brief dated 3/11/2010 but filed on 16/12/2012. By the order of this court given on 22/02/2012, the said brief was deemed to have been properly filed and served on the day the order was made i.e. (22/02/2012).
It is appropriate to pause a little at this stage and consider the preliminary objection alluded to supra before considerations are given to the issues formulated by the parties to this appeal.
Learned Counsel for the Respondent as I have earlier on stated in this judgment had filed a Notice of Preliminary objection without giving notice to the Appellant and without filing copies for the use of Court and the parties alike. This brings me to the examination of Order 10 Rules 1 and 2 of the Rules of this Court, 2007 under which Rules the Appellant's brief was filed and they are hereunder reproduced for ease of reference as follows:
''(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall, file such notice together with twenty copies thereof with the Registrar within the same time.
Rule 3 says:
''If the respondent fails to comply with this Rule, the court may refuse to entertain objection or may adjourn the hearing thereof at the costs of the respondent or may make such other costs as it thinks fit.''
It is crystal clear that by the provisions of order 10 Rules 1 and 2 reproduced supra, a Counsel intending to raise a Preliminary Objection is duty bound to file 20 copies of the Preliminary objection and give the Appellant three clear days' notice before the hearing of the objection in question. The Respondent as can be gleaned from the record did not comply with the Provisions of Order 10 Rules 1 and 2 reproduced supra.
In recent times I have had in a number of cases held that the aspect of the requirement to file the Notice of Objection in 20 copies is being glossed over rampantly. 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.
I am of the considered view that consistent with the decisions of this Court in the cases listed supra, the Preliminary Objection raised by the Respondent for the reasons stated therein cannot be sustained and is hereby dismissed accordingly.
ARGUMENT OF ISSUES:
The 1st issue for determination is whether the Plaintiff/Appellant was granted approval before proceeding on sabbatical leave.
In arguing this issue, learned Counsel contended that the Appellant applied for a sabbatical leave which in the first place was not approved. For the 2nd time, the three applicants himself inclusive, re-applied in the year 1991 and on the directive of the Vice Chancellor, the Appointments and Promotions Committee considered all the three applicants and the Dean in charge of the Department rated and ranked the three applicants to determine which of the three academic staff should proceed on leave.
The Dean, Faculty of Health Sciences communicated the rating to the Vice Chancellor on 28/6/1991. After waiting for about one year after the issuance of the memos referred to above. The Plaintiff/Appellant gave a formal notice to the Dean of his readiness to go on leave. The Dean, according to the learned Counsel nominated Dr. Oni to act as Head of Department and the Plaintiff/Appellant went on sabbatical leave on 13/10/92.
Learned Counsel submitted that from the facts of the case in hand and particularly the omission, silence and inaction of the Vice Chancellor for about one year, it could be construed that he gave an implied and tacit approval to the rating and ranking presented by the Dean and by extension approval of the plaintiff/Appellant's sabbatical leave.
It is the submission of the learned Counsel that the University of Ilorin Revised Regulation 7.13.4 cited and relied on by the trial Judge rather than supports Defendant/Respondent's case, supports the case of the Plaintiff/Appellant. Learned Counsel posits that Plaintiff/Appellant satisfied the pre-conditions before the Appointment and Promotions Committee screened and considered the applications and the Dean rated and ranked the three academic staff in order of proceeding on leave. Plaintiff/Appellant's Head of Department nominated Dr. Oni to take over as acting Head of Department and this was a clear indication that the Plaintiff/Appellant could be spared from his duties and also constituted adequate arrangement to cover his duties (see page 120 of Record of Proceedings).
Learned counsel contended that apart from Exhibit '6' which the learned trial Judge cited in his judgment, the plaintiff/Appellant sought to rely on memo UI/FHS/U/155 of 17/7/91 from the Dean to the vice chancellor. Though the Plaintiff/Appellant pleaded and served the Defendant/Respondent's Registrar a subpoena to attend and produce the memo, the Defendant/Respondent refused and failed to attend and to produce it, learned counsel further contended.
We were urged by the learned Counsel to hold that the memo which could be and was not produced would if produced, strengthen Plaintiff/Appellant's case and be unfavourable to the Defendant/Respondent who withheld it. Learned counsel urged us to invoke the Provision of section 149(d) of the Evidence Act. He relied on the case of United Bank for Africa Ltd. vs. Ibhafidon (1994) 1 NWLR (Pt. 318) 90, Tsokwa Motors (Nigeria Ltd vs. Awoniyi (1999) 1 NWLR (Pt. 596) P. 199.
Learned counsel urged us to hold that the Defendant/Respondent by her act, or omission and conduct gave tacit approval to plaintiff/Appellant to go on sabbatical leave and she is therefore estopped from claiming that the Plaintiff/Appellant went on unapproved leave. Learned counsel contended that section 151 of the Evidence Act can be successfully invoked against her. He urged us to do just that.
Issue 2 is whether the Defendant/Respondent complied with the provisions of Section 15 of the University of Ilorin Act, the Constitution of the Federal Republic of Nigeria, 1999, Section 36 and natural justice in terminating Plaintiff/Appellant's appointment.
In arguing this issue, learned Counsel submitted that the learned trial Judge misdirected himself in law and fact when he held that:
"I have no difficulty holding that Exhibits -"2" and "28" were queries ... I reject the contention ......."
Learned Counsel continued his submission that the memo did not question, challenge, controvert or raise doubts about Plaintiff/Appellant's conduct, action or inaction for which he was called upon to defend or explain. Learned Counsel went on to submit that Exhibit 22 was dated 29/9/92 and that at that time it was issued, the Plaintiff/Appellant had not yet proceeded on leave. He was physically and personally present at his post and therefore could not be queried for "unilaterally" proceeding on leave.
Learned Counsel contended that assuming but not conceding that Exhibit 22 was a query, he submitted that the Plaintiff/Appellant replied and that was the end of the matter. And as regards to Exhibit "22', learned Counsel submitted that the Respondent claimed that Exhibit 28 was sent to Plaintiff/Appellant's contact address but failed woefully to call the person(s) who dispatched the letter to give evidence. The only witness called by Defendant/Respondent DW1 under cross-examination admitted that he was not involved in the dispatch of Exhibit '28'. The witness, learned counsel went on, further said thus:
"Normally we sent oversees letters by courier but it could be air Mail". (See page 97). DW1 also said "we reached the plaintiff through the Dean or the address he left when he was going on the unauthorized leave). (See page 95 of the record of proceedings).
Learned Counsel submitted that the trial Judge drew wrong inference and conclusion from the mere fact that because plaintiff/Appellant "acknowledged a receipt of Exhibit "27" by the Defendant sent to him through the same channel that he provided in Exhibit '24' it follows without more that Exhibit "28" was sent and received by him. This inference learned Counsel went on, was purely speculative, hypothetical and unsupported by evidence. Judges, he further submitted are not to speculate. He relied on the case of Nwachukwu v. The State (2002) 2 NWLR (Part 751) 366 per Ikongbeh JCA of blessed memory.
Learned Counsel concluded his submission on this point by submitting that the failure by the Defendant/Respondent to establish her claim that they sent Exhibit 28 to the Plaintiff/Appellant is fatal to their defence and we were urged to so hold.
On whether the Defendant/Respondent complied with section 15(i) (a) (b) of University of Ilorin Act, 1994, section 36 of the constitution of the Federal Republic of Nigeria, 1999 and natural justice, learned Counsel submitted that the Plaintiff/Appellant was not offered the opportunity to defend himself and or to make representation before the Appointments and Promotions committee which purportedly terminated his appointment.
What more, it is only the governing council that is the competent authority to terminate Plaintiff/Appellant's appointment as a senior academic staff.
It is the contention of the learned Counsel that if we hold that the Plaintiff/Appellant did not receive "Exhibit 28" the alleged query, then the bottom has been knocked off the Defendant/Respondent's case that they offered him opportunity to defend himself but he failed to do so.
It is the submission of the learned Counsel for the Plaintiff/Appellant that assuming but not conceding that the Defendant/Respondent sent "Exhibit 28" to the Plaintiff/Appellant the Appointments and Promotions Committee is incompetent to terminate Plaintiff/Appellant's appointment being a senior academic staff. Hence Exhibit 9 is therefore ultra vires, null and void. For this submission, learned Counsel relied on Bamigboye vs. University of Ilorin (1999) 6 SCNJ, 295 at 326 and 327. Also reported in (1999) 10 NWLR, 174 - 358 (Pt. 622) P. 290.
It is the submission of the learned Counsel that the governing council is incompetent to delegate a statutory authority to any person unless there is express statutory authority to do so. (See Bamigboye vs. University of Ilorin (supra). Even if such power to issue Exhibit "9" was delegated the Defendant/Respondent has not shown that the letter was issued on delegated authority.
Learned Counsel further submitted that University of Ilorin is a creation of statute and for the termination of the appointment of the Plaintiff/Appellant to be intra vires, it has to comply strictly with all the provisions of Section 15 (5) University of Ilorin Act governing the termination of senior academic staff appointment. We were urged to hold that failure to do that renders the termination ultra vires, null and void. (See Bamigboye v. University of Ilorin (supra) Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Ekperokun v. University of Lagos (1985) 4 NWLR (pt. 34) 162.
Learned Counsel submitted that employment with a Statutory flavor as in the instance case, it must be terminated in the way and manner prescribed by the relevant statute and any manner of termination that short-circuit that is ultra vires, null and void and of no effect. In support of this submission, learned Counsel relied on the case of Iderima vs. Rivers State (2005) 7 SCNJ p. 505.
Learned Counsel contended that the trial Judge failed to make any specific finding on whether the Appointment and Promotions Committee was competent or not to terminate the Plaintiff/Appellant's appointment. The trial Judge, the learned Counsel went on, down played, and was in fact dismissive of the crucial issue when he held that "if it was contended that it was the Appointments and Promotions Committee that terminated the appointment of the Plaintiff the same can not be said of Exhibit "10" by the governing Council'' (See pages 124-126 of the record of proceedings).
As regard to the said Exhibit (Exhibit 10) learned Counsel submitted that the Defendant/Respondent having purportedly terminated Plaintiff/Appellant's appointment on 6/5/98 via Exhibit '9', cannot thereafter dismiss him vide the letter dated 29/4/99 from the very service which at that time had ceased to exist, (See A. S. Jombo (J.P) Petroleum Equalization Fund and 2 ors. (2005) 7 SCNJ page 267-273.
It is the submission of the learned counsel for the plaintiff/Appellant that though the Vice Chancellor has power under provision 7.13.15 of the University of Ilorin Revised Regulation to terminate appointment without notice, he did not exercise that power in the instant case and did not purport to have delegated the power to any other person. Learned Counsel further submitted that a statutory disciplinary power cannot be delegated unless there is an express statutory authority to delegate. He relied on the case of Bamigboye vs. university of Ilorin (supra) to support his submission.
Learned counsel submitted that Exhibit 10 emanated from the office of the Registrar and was signed for the Registrar. The writer did not purport to write on the directive of the Vice Chancellor. She did not say the Vice Chancellor directed her to convey the decision but spoke of the council. My Lords, if the council must terminate then it must comply strictly with Section 15(5) of the University Act. In this case the Council did not comply with section 15(5) but simply said she came to a "conclusion to convert the dismissal from service............. to termination'' (see page 125 of the Record of proceedings).
Learned Counsel further submitted that the trial Judge misdirected himself when he held that "the decision was conveyed on behalf of the Registrar by the Governing Council of the institution". (See page 125 of the records). Learned counsel finally submitted that the Governing Counsel decision is fatally flawed and we were urged to set aside the judgment of the trial Judge.
For their part, learned Counsel for the Defendant/Respondent in arguing issue No. 1, as to whether the Appellant was given approval to proceed with sabbatical leave, learned Counsel opined that the issue seeks to critically examine the facts, circumstances, and evidence available before the trial Court and see whether the Appellant could be said to have been granted approval to proceed on sabbatical leave.
Learned Counsel went on to contend that from the facts of the instant case, it is that the Appellant applied for sabbatical leave in 1990 which was disapproved. He re-applied in 1991 and was informed he has been ranked third and that he could not go simultaneously with another person who is clinically qualified with him and further that his reaction was expected. Learned Counsel further contended that it cannot be said in view of what transpired above that the Appellant had been granted the approval as he claimed to have been given via Exhibit 6.
Learned Counsel for the Defendant/Respondent went down through the memory lane and graphically gave account of what transpired before and after the Plaintiff/Appellant applied for the sabbatical leave and submitted that from what transpired as can be gleaned from the record of the trial Court, the Plaintiff/Appellant cannot be said to have been given the approval to proceed on sabbatical leave.
On issue No. 2, learned Counsel opined that the issue seeks to examine whether the Appellant'91s appointment was properly terminated. In other words, he went on, whether the necessary procedure was followed in terminating the Appellant's appointment.
Learned counsel contended that it is important to note from the outset that the Appellant is not contending the fact that the Respondent has the vires to terminate his appointment. It is also not in contention that an unauthorized absence from duty for a period of five years under the guise of proceeding on sabbatical leave constitute a gross misconduct which would justify termination of appointment. Rather, the contention of the Appellant herein is that he was not afforded opportunity to be heard in accordance with Section 15 of the University of Ilorin Act, and section 36 of the 1999 Constitution before his appointment was terminated.
It is also the contention of the plaintiff/Appellant that the body and offices in the Respondent through whom the Appellant's appointment was terminated do not have the legal capacity to so do and/or did not state expressly that they were exercising the power on behalf of the Respondent, learned Counsel further contended.
On the 1st aspect of this issue, which is fair hearing, learned counsel contended that it is crystal clear that section 15 of the University's Act gave the council the power to remove any person, whether member of the academic, administrative or professional staff, from his office or employment, and that such person be given an opportunity of making representation to the Council on the matter.
Learned Counsel submitted that from the express provision of section 15 of the University of Ilorin Act, and even the general requirement of fair hearing under section 36 of the 1999 constitution, what is required is to give the person concerned an opportunity to be heard. It is trite that where such an opportunity was given to a person and he refuses to make use of it he cannot claim that his right of fair hearing has been violated. This position has crystallized in a plethoral of authorities. He relied on the case of Kaduna Textiles Ltd v. Umar (1994) 1 NWLR (pt. 319) 143 at 159, where Achike JCA (as he then was) stated thus:
"Where a party to a suit has been acceded a reasonable opportunity of being heard and in the manner prescribed under the law, and for no satisfactory explanation it fails or neglects to attend the sitting of the court the party cannot thereafter be heard to complain or lack of fair hearing."
Learned counsel urged us to hold that in view of what transpired at the court below as adumbrated supra, the Appellant's appointment was properly terminated and that this issue be resolved in favour of the Defendant/Respondent. He urged us to dismiss the appeal for lacking in merit.
RESOLUTION OF ISSUES
Now, in resolving these issues Nos. 1 and 2 which are whether the Appellant was given approval to proceed on sabbatical leave and whether the appointment of the Appellant was properly terminated, my first port of call is Exhibit 6, tendered by the Appellant as an exhibit to show that he had been given the approval which is the most contentious issue in this appeal.
As can be gleaned from the record of the lower Court, on page 88, when asked under cross-examination as to the whereabout of the letter
With which Prof. Komolafe informed him that his application has been approved, the Plaintiff/Appellant answered thus:
"It is already before the Court."
When asked whether he can identify it in any of the exhibits, the Appellant answered that it is Exhibit 6. This being his answer, it would not be out of place to reproduce the contents of Exhibit 6 with a view to finding out whether or not the application of the Plaintiff/Appellant has indeed been approved via the said exhibit as he claimed.
Exhibit 6 reads thus:
''UNIVERSITY OF ILORIN
FACULTY OF HEALTH SCIENCES
FROM: DEAN TO: DR. ADEKOLU-JOHN
Faculty of Health Sciences. Ag. HOD, Epid. & Comm.
REF. UI/FHC/U/159 DATE: 28/6/91
ORDER OF PROCEEDING ON SABBATICAL LEAVE
At the last meeting of the Appointment and Promotions Committee of the University, it was observed that apart from several academic staff who are currently away from Department, three further requests for sabbatical leave in respect of Dr. T. A. Alade, Dr. D. B. Parakoyi and yourself were being considered.
In order that the Department responsibilities do not suffer I have been requested to rank the applications for sabbatical leave from your Department, noting in particular that both of you who are clinically qualified can not in the present circumstances be released at the same time. I should also note that the reason given for requesting deferment of Dr. Parakoyi's earlier approval was because of the accident in which you were the involved.
I should like to have your reaction urgently on this matter so that I could advise the Vice Chancellor appropriately.
SGD. Professor Funsho Komolafe,
Faculty of Health Sciences,
cc. Dr. D. B. Parakoyi,
Dr. I. Alade."
The question that is begging for an answer from the content of Exhibit 6, reproduced supra is whether the said Exhibit could be taken as an approval to proceed on the sabbatical leave of the Appellant.
A close look at the content of Exhibit 6 would leave no one in any doubt that there is nothing from the content of the said Exhibit that suggests whether expressly or by implication that the sabbatical leave of the Appellant has been approved. It is crystal clear that Exhibit 6 only talks about the fact that several staff are already away from the department and that the Appellant's request and that of the other two applicants were being considered. While paragraph two states the rank and the condition, the last paragraph states expressly that:
"I should like to have your reaction urgently on this matter so that I could advise the Vice Chancellor appropriately."
It is instructive to state that Exhibit 6 was copied to the other applicants whose applications were being considered together with that of the Appellant. It is instructive to also state that the Appellant herein never reacted to this memo (Exhibit 6) as requested in the last paragraph of the memo before proceeding on the leave.
As can be gleaned from the record of the lower Court, it is clear that the reaction of the Appellant was needed in order to advise the Vice Chancellor appropriately. This suggests that his application was still under consideration and that the Vice Chancellor needed to be advised before the application could be approved, needless of saying that both the advice and the approval would be in writing. The Appellant has not been able to show that the Vice Chancellor was advised and an approval was sent to him.
Learned Counsel for the Appellant and the Appellant himself made heavy weather of the fact that he waited almost a year, after the memo before proceeding on the sabbatical leave and that the University's silence over the period is taken that his leave has been approved. I am of the considered view that that cannot be so. If the Appellant honestly, sincerely and reasonably believed that Exhibit 6 constituted an approval, as he claimed, why would he wait for a year before proceeding and what was he actually waiting for? The only logical answer to this poser is that the Appellant knew that his leave had not yet been approved, but having waited for that long, he decided to proceed with or without the approval.
(Assuming he waited as he claimed).
I am also of the firm view that the University's purported silence could not be taken as approval because the Appellant was requested to react to Exhibit 6 for the University to make her decision, which he never did. Secondly, the Appellant herein knew approval for sabbatical leave was not made in silence and he admitted under cross examination at page 88 of the record that the approval was to be in writing.
That aside, another factor worthy of note is that Exhibit 6 was copied to the other two applicants. If it were to be the approval as canvassed by the Appellant would it mean that the three of them had been released, contrary to the express content of the memo? I do not think so.
I am of the considered view that in the light of the evidence adduced in the lower Court both oral and documentary, Exhibit 6 cannot by any stretch of imagination be said to be the approval of the Appellant's application for leave. Far from it. 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.
A close look at Exhibit 16 which is the Respondent's revised Regulation of service shows explicitly the mode of approval for sabbatical leave. It states that the letter of approval must contain the condition governing the leave, like the duration of the leave, that the officer must return to work at the time stipulated on the approval and that sabbatical leave can only be for one year.
It is crystal clear from the facts of this case that Exhibit 6 which the Appellant claimed to have relied upon did not conform with any of these conditions. So, the Appellant could not reasonably contend that he was under such belief that Exhibit 6 constitutes an approval for leave.
In the light of all that has been said, I dm of the considered view that the Appellant was not given approval to proceed on sabbatical leave. This issue is resolved against him and in favour of the Respondent.
ISSUE NO. 2
Issue No. 2 at the risk of being repetitive is whether the Appellant's appointment was not properly terminated.
In determining the instant issue, the question that readily come to mind is whether the Appellant was given adequate opportunity to present his own side of the story, that is to say whether he had been given ample opportunity to defend himself before his appointment with the Respondent was terminated.
Needless to say, in answering the question posed supra, recourse had to be made to the case law where similar provisions to that of Section 15 of the University of Ilorin Act were examined and considered. Let me begin with the case of Kaduna Textiles Ltd vs. Umar (supra) where the apex Court per Achike JSC (as he then was) of blessed memory held that:
"Where a party to a suit has been acceded a reasonable opportunity of being heard and in the manner prescribed under the law, and for no satisfactory explanation it fails or neglects to attend the sitting of the Court the party cannot thereafter be heard to complain of lack of fair hearing.''?
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.''
Now, having stated the law and all that, the question that needs to be asked and answered is whether the Appellant herein was given an opportunity to make representation in respect of his alleged misconduct before his appointment was terminated. Lest I forget, the employment of the Plaintiff/Appellant unlike that of Alh. Lasisi Yusuf stated supra is one made under the statute establishing the University of Ilorin, and can be legally called an unemployment with statutory flavour, the guiding principle regulating termination of such an employee is compliance with the particular provision relating to termination of such an employment as stipulated in that statute. 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.
Flowing from above, the question that must be asked and answered at this stage is whether the Defendant/Respondent had complied with the provisions pertaining to termination of the plaintiff/Appellant's employment under the statutes setting the University of Ilorin.
This brings me to the examination of section 15 (1-5) of the university of Ilorin Act dealing with the removal of an employee working under the institution. The section provides thus:
"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:
(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.
The question yet to be asked is whether the provisions of the above stated section were complied with by the Respondent before the removal of the Appellant.
It is clear from the facts of this case as can be gathered from the proceedings of the lower court that the Appellant vide Exhibit 24 dated 19th August, 1992 informed the Respondent that he was proceeding on the unauthorized sabbatical leave and furnished Respondent with his contact address thereat. The Respondent issued Exhibit 22 dated 29/09/1992 to the Appellant stating that no sabbatical leave was approved and requested the reaction of the Appellant.
It is also clear and beyond any dispute that the Appellant admitted receiving the said exhibit under cross-examination at page 89 of the record. Also Exhibits 25 and 26 dated 5th May, 1993 and 23rd August, 1993 respectively were also sent to the Appellant's address which the Appellant even responded to vide Exhibit 27 dated 24/7/93. Exhibit 28 is clearly a query, and the fact of which the Appellant also acknowledged, was also sent to the Appellant's same address, but the Appellant claimed not to have received it.
As can be gathered from the record of the trial court, the Appellant is not contending the fact that Exhibit 28 is a query neither is he contending that a query is an opportunity to be heard. His only contention is that he did not receive it.
Now, can it be said from what transpired in the court bellow to be set out anon, that the Appellant did not receive Exhibit 28? 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.
I am of the firm view that the issuance of query and stipulating time for the Appellant to answer, has satisfied the requirement of giving opportunity of fair hearing, and the Appellant having been c1eemed to have received same I hold without any hesitation that section 15 of University of Ilorin Act and section 36 of the 1999 constitution have been complied with in the termination of the Appellant's employment. The question I posed a while ago is answered in the affirmative. For avoidance of any doubt, the Plaintiff/Appellant was given adequate opportunity to be heard.
On the 2nd leg of this issue, the contention of the Appellant as can be seen from the record of the lower court is that failure of the Registrar to expressly state in Exhibit 9 through which the termination of appointment was communicated to the Appellant, that he was acting on the direction of the council renders it null and void, is highly misconceived and has no basis in law.
The Respondent herein is a creation of law which is made up of different bodies and officers through which it performs its various functions, a fact which judicial notice has been taken. The Registrar is one of the principal members of the Respondent and the secretary to the council of the Respondent. 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.
I am of the view that, presumption of regularity enures in favour of the Respondent herein. The onus is on the Appellant herein to show by credible evidence that the Registrar was not acting on the direction of the council, which he had faired to do. The issuance of Exhibit 9 is an official act which is a perfect situation where section 150(1) of the Evidence Act applies. It reads:
"(150) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.''
See also the case of Ogbuanyinya v. Okudo (1990) 4 NWLR (pt. 146) 551 at 570 para. E - F per Karbi-Whtete JSC and Sodipo v. Ogidan (2008) 4 NWLR (pt 1077) 342 at 370 paras B - F.
I am also of the further view that the Appointment and promotion committee is a committee of the council assigned with the responsibility of looking into the Appellant's affair and through whom the council has exercised its power under section 15 of the University of Ilorin Act. Everything done by it is the act of the council and it cannot be seriously contended as done by the Appellant that it lacks power to terminate his appointment.
Last but not the least point I would like to make before I am done, is the fact that the plaintiff/Appellant also voluntarily resigned his appointment vide Exhibit B and cannot claim reinstatement thereafter as he is trying to do now. It amounts to a contradiction in terms. If he were interested in his job, he would not have even retired in the first place.
The 2nd issue in the fight of the foregoings is resolved against the Appellant and in favour of the Respondent.
In conclusion, therefore and for the reasons given above I hold the that appeal is completely devoid of any merit. It fails and dismissed. I affirm the judgment of the trial court. I award the sum of N30, 000.00 as costs to the Respondent.
ITA G. MBABA J.C.A: I have had the advantage of reading in draft, the lead judgment by my learned brother, Tijjani Abdullahi JCA (PJ), just delivered. I agree completely with my lord's reasoning and conclusions.
I think appellant can not rightly say that he waited for about one year for the V. C's approval, after the memo (exhibit 6). It would rather be proper to think that the purported delay of the Vice chancellor to take action should be blamed on the appellant's failure to react to exhibit 6 as requested, to enable the Dean to advise the Vice chancellor appropriately. Thus, in the alleged one year of waiting, appellant was actually waiting on himself to take the requisite action! He frustrated himself and instead of looking inward to correct his error, he appeared to have acted in anger against the perceived in-action of the University to approve his sabbatical leave, and went, on his own. That is, he released himself for the purported sabbatical leave!
Appellant admitted receiving exhibit 22, issued to him by the respondent to the effect that no sabbatical leave was approved for him. He further admitted that as at the time exhibit 22 was issued on 29/9/92, accusing him of proceeding on leave, "unilaterally", he was physically present at his post. Why did he still proceed, stubbornly, instead of heeding the warning and thereby saving his job, if he valued it?
I think, he can not be heard to complain, after acting so pre-meditatingly, in intransigence.
By defying the authority of the university, despite all the counsel and warning given to him as per exhibits 6 and 22 (among others) to proceed on unauthorised sabbatical leave, appellant cannot absolve himself of the tag of misconduct, that cost his job. He cannot complain of not being given for fair hearing
For this reason and other more elaborate reasons in the lead judgment, I, too dismiss the appeal for leading in merit. I abide by the consequential orders in the lead judgment.
OBANDE OGBUINYA, J.C.A: I have had the opportunity to read, in draft, the leading judgment delivered by my learned brother, Tijiani Abdullahi, JCA. My noble Lord properly handled all the issues in controversy. I concur with his reasons and conclusions that the appeal lacks merit. Accordingly, I, too, dismiss it. I abide by the consequential orders made in the leading judgment.
R. A Odihi Esq., with G. O. Abidoye Esq. For the Appelants
Yakubu Daudu Esq., with B. Ajanakun Esq., F. O. Atofarati Esq, A. Olanepekun (Miss) and O. D. Osunde Esq. For the Respondents