Saadu A. Saliman V. Kwara State Polytechnic & Ors. (2005)

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MUNTAKA-COOMASSIE, J.C.A.

The appellant herein, was the plaintiff before the Hon. Justice Gbadeyan of the High Court of Justice Kwara State, holden at Ilorin. The appellant instituted this action by way of originating summons pursuant to Order 6 Rule 2 of the High Court (Civil Procedure) Rules dated 13th day of July, 2004. The originating summons was asking the High Court to determine the following question:

“Is the purported dismissal of the plaintiff, a staff of the Kwara State Polytechnic by the defendants as conveyed in a letter dated 15th April, 2004, for no stated or known cause and without any notice or hearing of whatever nature not ultra vires, unconstitutional, illegal, null and void having regard to the Provisions of S.36 of the Constitution of the Federal Republic of Nigeria, 1999, (sic) and/or the State Polytechnic Edict, No. 13 of 1987, in particular Section 33 thereof?”

After which the appellant sought the following two reliefs:-

“1. A DECLARATION that the purported dismissal of the plaintiff from the employment of the 1st defendant is ultra vires, illegal, unconstitutional, null and void for want of fair hearing compliance with the laid down statutory procedures.

(2) AN ORDER restating the plaintiff back to his office in the 1st Defendant with all his rights and privileges attached and without loss of promotion with effect from the date of the purported dismissal”.

The 1st and 2nd defendants, in their joint Counter-Affidavits denied the allegation in the originating Summons and declared them “untrue” as the 1st defendant set up a committee in 2003, inter alia, to look at the activities of the Bursary Unit of the Polytechnic and that the Committee invited various people who have allegation against them including the plaintiff who was found wanting and the plaintiff and others were invited before the Disciplinary/ Investigation Committee to defend themselves. They again deposed in their counter Affidavit that the dismissal of the plaintiff was in accordance with the provisions of the, State Polytechnic Edict.

After considering the averments in both Affidavits including Counter-affidavits, and listening to the counsel on both, sides, the trial court found no merit in the claims of the plaintiffs and consequently dismissed them. The learned trial Judge J.Y. Gbadeyan held thus:-

“In my judgment, I find the procedure adopted as flawless, intra vires, legal and constitutionally (sic) because there is from the affidavit evidence of the 1st and 2nd defendants which I believe that there is no want of fair hearing and non-compliance with the laid down statutory procedures as the plaintiff was well aware of the case against him. I am fortified in my view that there is no more requirement for court pronouncing on allegation bordering on Criminality before dismissal is effected by the Supreme Court decisions in ARINZE Vs. FBN LTD. (2004) 12 NWLR (PT. 888) 663 AT 677 And ODUA INVESTMENT LTD. Vs. TALABI (1997) 1 SCJN 600 AT 646. I find the dismissal in the circumstance justified and proper. The plaintiff’s case is hereby dismissed”. See page 42 of the Record of Proceedings.

It is against this judgment that the plaintiff now appellant appealed to this court. The appellant in his Notice of Appeal dated 14/12/2004 raised six (6) grounds of appeal. I do not think that it is necessary to reproduce the said grounds at this stage.

In accordance with the rules of this Court Order 6RR 2 & 4 of the Court of Appeal Rules both parties filed and exchanged briefs of argument. While the appellant, in addition, filed a reply Brief. In the appellant’s Brief dated 17/2/2005, two issues for determination were formulated thus:-

(a) Whether the learned trial Judge was not wrong to have held that the dismissal of the appellant was proper regard being had to the affidavit evidence and the relevant statutory provisions in this case.

(b) Whether the learned trial Judge was not wrong to have held that there is no more requirements for court to pronounce on allegations bordering on criminality before dismissal bearing in mind the nature of the employment of the Appellant”.

The first and 2nd respondents distilled two issues for our consideration of the appeal as follows:-