Ondo State University & Anor. V. Dr. Ezekiel Adekunle Folayan (1994)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C.

The respondent brought an action in the High Court of Ondo State sitting at Ado-Ekiti, against the appellants, claiming as follows, as per paragraph 21 of his statement of claim:-

“(i) A declaration that the plaintiff’s appointment with the 1st defendant is still subsisting;
(ii) A declaration that the purported determination or termination of the plaintiff’s appointment with the 1st defendant vide the 2nd defendant’s letter reference number AD/EST/OAU/ACSE/37/73 of 31st May, 1988 is a violation of:
(a) the plaintiff’s letter of appointment dated 29th April, 1983;
(b) memorandum of agreement dated 29th April, 1983 between the plaintiff and the 1st defendant;
(c) regulations regulating the condition of service of senior staff of the 1st defendant;
(d) section 15 of the Ondo State University Edict Law of 1982;
(e) section 33 of the Constitution of the Federal Republic of Nigeria 1979; and
(f) the rules and norms of natural justice.”

At the hearing in the High Court, each of the parties called evidence with the appellant (hereinafter referred to as “plaintiff’) testifying on his behalf and the 2nd Respondent testifying for himself and the 1st respondent (hereinafter referred to as “2nd defendant” and “1st defendant” respectively).

The facts of the case, which are not in dispute, may be summarised as follows. By a letter dated the 29th day of April, 1983, the plaintiff was offered an appointment by the 1st defendant as Lecturer Grade II. The letter, which was signed by the 2nd defendant on behalf of the 1st defendant, reads thus:-
“29th, April, 1983
Mr. Michael Adekunle Folayan,
2622 Kirkwood Place, #202,
Hyattsville, Maryland 20782,
U.S.A.
Dear Sir,
Offer of Appointment
I write on behalf of the Council of the Obafemi Awolowo University to offer you an appointment as Lecturer Grade II* in the Department of Economics on a salary scale USS Step 1, i.e. N7,550 per annum, with effect from 1st September, 1983, or as soon as possible thereafter.
The appointment is probationary for a period of 3 years and is subject to the regulations of the university and to such conditions governing appointments generally as may be made by the council of the university from time to time.
The prospective employee must produce evidence of good health before an appointment becomes valid. For this purpose, you are required to obtain a medical certificate of fitness from the Director of Health services of the Obafemi Awolowo University or a medical doctor designated by the University.
If you accept the offer, please sign the duplicate copy of the Memorandum of Appointment over a twenty kobo stamp, stating how soon you expect to be able to take up your appointment and return it to me together with your medical certificate as soon as possible.
Yours faithfully,
(Signed)
J.G.O. Adegbite
Registrar

cc: Vice-Chancellor,
Bursar,
Senior Accountant,
Dean, Faculty of Social Sciences.
*Subject to your obtaining PH. D.”
This letter was put in evidence as Exhibit A and Memorandum of Appointment which was attached to it was admitted in evidence as Exhibit A1. The plaintiff accepted the offer of the appointment on the 8th day of July, 1983 by signing Exhibit A1 and indicating therein that he would take up his duties on the 1st day of September, 1983. The portion of Exhibit A1 signed by the plaintiff is on page 3 of the Exhibit. It reads in part as follows:
“ACCEPTANCE
I accept with pleasure the offer of appointment upon the terms and conditions set forth above, and I shall take up my duties on 1st September, 1983.
Appointee’s
Signature:
(Signed)”.

Now paragraphs 6 and 8 of Exhibit A1 read:
“6. Subject to the provisions of paragraph 7 below, the council shall not terminate the appointment of the appointee without having given six month’s notice in the case of a full professor or three months notice in the case of a non-professional member of staff, in writing of its intention to do so, or having tendered payment of the amount applicable to the period of notice unexpired and upon its doing so, the appointment of the appointee shall determine immediately.”
“8. The appointment shall be subject to confirmation after a period of three years in the case of academic staff and two years in the case of administrative staff and if confirmed shall become permanent. The appointee shall then retire at the close of the academic session (for this purpose 30th September) in which he attains his 60th birthday unless invited by resolution of the council to continue in office for a specific period, not exceeding five years. Only appointments of the rank of professorship made on permanent basis shall be tenable until the normal retirement age of 60 without the three year probation period.”
(Emphasis mine).

It is pertinent to point out that the name “Obafemi Awolowo University” was later changed to Ondo State University and this is common ground between the parties to this case.
Apart from the aforementioned conditions, the appointment of the plaintiff was also made, by Exhibit A, subject to the Regulations Governing the Service of Senior Staff (Exhibit F). The Regulations provide for an Appointments and Promotions Board whose composition is as follows:-
“(i) The Vice-Chancellor (Chairman)
(ii) Two members of council, not being members of senate appointed by council
(iii) The Deans/Acting Deans of Faculties.
(iv) The Head of Department of the candidate concerned.
(v) The registrar as secretary”.
The terms of reference of the Appointments and Promotions Board include responsibility- .
“To consider all appointments to, confirmation of, and promotions within the academic, Senior Administrative, Technical and Professional staff,”
The plaintiff assumed duty in accordance with the date given by him to do so, that is the 1st September, 1983, in the Department of Economics of the 1st defendant. He remained in the employment and carried out academic and extra- curricular activities that had been assigned to him from time to time by the authorities of the 1st defendant, until the 31st day of May, 1988 when he was served with a letter (Exhibit E) written by the 2nd defendant; which terminated his appointment with the 1st defendant. The letter, as relevant, reads:-
“31st May, 1988
Dr. E.A. Folayan,
Ondo State University,
ADO-EKITI
APPOINTMENT WITH THE UNIVERSITY
I am writing to inform you that the Appointments and Promotions Board at its meeting on Friday, 29th April, 1988 reviewed your appointment and the totality of your career in the University and was unable to confirm your appointment. The Board unanimously decided that your probationary appointment in the University be determined with immediate effect.

Your appointment as a lecturer in the department of Economics in this University is therefore determined with effect from today Tuesday, 31st May, 1988.
By a copy of this letter, the Bursar is being informed to pay you three months salary in lieu of notice and also to work out your other entitlements as well as your indebtedness to the university, so that they can be settled.
(signed)
J. G. O. Adegbite.
Registrar.”
Hence the action brought by the plaintiff in the High Court against the defendants. In his considered judgment, the learned trial Judge, Akintan J. (as he then was) found as follows:-
“It is clear from the contents of the plaintiff’s letter of appointment (Exhs. A & AI) as well as the provisions of Articles 14(c) and 22 of the Rules (sic Regulations), that the plaintiff’s appointment as Lecturer Grade II was on probation for three years and that it would only be confirmed if the appropriate authority of the University charged with exercising that function considers the plaintiff’s service to be satisfactory, he shows evidence of academic or scholaristic (sic) potential also to the satisfaction of the same authority.
I also have no doubt in holding that by virtue of the powers conferred on the Board in Article 3(B) of the Regulations, it is that Board that is conferred with the power to take a decision as to whether or not the plaintiff’s appointment should be confirmed.
The question to be answered is whether the decision to confirm an appointment can be inferred or presumed in the present case or whether the court can, based on the facts proved, in this case, hold that the plaintiff’s appointment has, in fact been confirmed. In [1994] 7 NWLR Ondo State University v. Folayan (Uwais, J.S.C.) 17 answering this question reference must again be made to paragraph 8 of the Memorandum of Agreement (Exh. A 1) which requires that the plaintiff’s appointment’ shall be subject to confirmation after a period of three years.’
It is clear from that provision that the plaintiff’s appointment can only be confirmed after and not before he has served for three years. When that provision is read along with Article 22(vi) of the Rules which provides that probationary period of a member of that academic staff shall not be more than a total of six years, it means that the probationary appointment of an academic staff can only be confirmed after this third year of service but not later than his sixth year of service in case he was granted an extension.”

The learned trial Judge considered also whether the plaintiff’s probationary appointment had in fact been confirmed by the conduct or omission of the defendants. He held that the Regulations Governing the Service of Senior Staff (Exh.F) were made pursuant to the power conferred on the Council of the University by virtue of sections 6 subsection (5) and 9 subsection (1) of the Ondo State University Law, 1982. He, consequently, came to the conclusion that the Regulations had legal force, and by virtue of that, had invested in the senior academic staff of the university a legal status, which the senior staff could legally enforce, on the authority of the case of Shitta-Bey v. Federal Public Service Commission, (1981)1 S.C. 40. The learned Judge observed that the letter terminating the appointment of the plaintiff (Exh. E) was issued on the 31st May, 1988, that is after the plaintiff had been in the employment of the 1st defendant for a period of four years and eight months, which falls within the maximum 6 years of probation prescribed by regulation 22(vi) of Exhibit F. He then stated as follows:-
“The question then is: can a court assume that the plaintiff’s probationary employment has been confirmed through the conduct of the parties in this case, having regard to the facts summarised hereof I have no doubt in answering the question in the negative.”

Learned trial Judge also considered the issue whether the 1st defendant was right in determining the plaintiff’s appointment and held that the 1st defendant was justified in doing so. Finally, he held that the plaintiff’s claim had no merit. He, therefore, dismissed it in its-entirety.

The plaintiff appealed from the decision of the trial court to the Court of Appeal. The appeal succeeded. In reversing the judgment of the learned trial Judge, the Court of Appeal (Omo J .C.A, as he then was, Ndomo-Egba and Salami J.J.C.A.) considered the question whether the plaintiff’s appointment was confirmed, having been in the employment of the 1st defendant for more than 4 years. The court (per Ndoma-Egba, J.C.A.) held that-
“The appellant was in the employment as an academic staff. On resumption of duties on 19/4/83 in pursuance to Exh. A, the appellant was considered fit and sufficient to serve in the Department of Economics of the Institute where he worked for well over four years as a lecturer until his appointment was purportedly terminated by the Appointment and Promotion Board of the 1st respondent and this was long after the probation period had expired.
The contract of employment between him and the respondents was complete.
After serving for well over four years, without confirmation of his appointment nor determination (sic) of it, the appellant genuinely assumed that his appointment was confirmed. The respondent cannot now resile from the position they had, by conduct, acknowledged. There was no evidence that the period of probation had been extended. In Majekodunmi v. NBN, (1978)3 S.C. 119 it was decided that in determining that whether there had been acceptance of an offer, the total circumstance of the case including the conduct of the offeror (sic) and offer or are factors to be taken into consideration ….
This, in my view, is precisely the position in the instant appeal. The respondent cannot withdraw from their written commitment that the appellant’s appointment was a probation for three years. The words “after three years” do not imply the communication of the confirmation of his appointment or otherwise, should be indefinitely delayed……. Silence or inaction in the instant case may be inferred as an admission of the confirmation of the appellant’s appointment.” (emphasis mine).

The court also considered the competence of the Appointments and Promotion’s Board to terminate the appointment of the plaintiff without reference to the 1st defendant for its approval or ratification. The court (per Ndoma-Egba JCA.) held as follows:-
“It cannot be disputed that the appellant’s appointor is the University Council, the duty of which, by the law creating it, is to administer the Institution, including the disciplinary control of all categories of staff, their employment and deployment. See section 6 of the Ondo State University Law, (1982) as amended in 1985.
Exhibit “A” by which the appellant was initially appointed Lecturer grade II reads:
‘I write on behalf of the council of the University of Obafemi Awolowo (Now Ondo State University) to offer you appointment as Lecturer Grade II…..’
This confirms the assertion that the council is the appointor of the appellant. see also Clauses 7, 8 and 9 of Exhibit “A1” of (sic) the memorandum or appointment, Article 25B of the 1st respondent (Council) (sic) states:
‘For good cause, any member of staff may be suspended or (sic) from his duties or his appointment terminated by the council’.
The power of termination or suspension of all staff thereto rests, exclusively, with the council. ….. The construction of the said provisions confirms that the council of the Institution is the only competent authority to dispense with the service of the appellant after the duration of the probation or within a reasonable time thereafter as contained in Exhibit “A” or confirm it. The assumption by the Appointments and Promotions Board to do so, entirely without the endorsement by the council is a pretence. Even if it could be validly implied by existing regulations of the institution that such power was delegated to the said Board, the council ought to formally endorse the actions purportedly taken on its behalf………The council of the University is the appointor. It is the only body competent to terminate the appointment of the appointee, the appellant. The learned trial Judge did recognise, rightly in my view that, in sections 3 and 4(3) of the Ondo (sic State) University Law (No.2 of 1982) as amended by the Ondo State University Law (Amendment) Edict, No.9 of 1985 and the Regulations Governing the Service of Senior Staff (Exhibit “F”, which are binding on the parties.
Section 2(1) of the Principal Law creating the Ondo State University (as amended), hereinafter referred to as the law, provides that the institution consists of the Chancellors (sic)
(a)    chairman of council
(b)    a body to be called Council
(c)    a Vice-Chancellor
(d)    a body to be called Senate.
The (Appointments and Promotions) Board having not been expressly mentioned can only be recognised and cannot exercise the powers of the council in regard to appointment and discipline of staff without the approval or endorsement of the council.”
(Parenthesis and emphasis mine).
In conclusion, the lower court allowed the plaintiff’s appeal granted and declared as follows:
“1. That the termination of the plaintiff’s appointment was invalid.
2. That the plaintiff’s appointment with the 1st defendant still subsisted.
3. That the plaintiff be restored to his office and be paid his entitlements with effect from 31st may, 1988.
and refused to grant the orders sought under claims (iii) and (iv) in the plaintiff’s writ of summons.

I think it is pertinent to point out here, that declaration No.1 above was not sought by the plaintiff in his statement of claim, which I have quoted at the beginning of this judgment nor were the orders sought in respect of claims (iii) and (iv) which appeared only in the plaintiff’s writ of summons. In making the declarations, the Court of Appeal was oblivious of the claims in the Statement of Claim which has superseded the claims in the Writ of Summons.