Kwara State Polytechnic, Ilorin & Ors. V. Mr. A. O. Oyebanji (2007)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

At the Ilorin Division of the High Court of Justice, Kwara State, in Suit KWS/130/2004, the Plaintiff (now the Respondent) by an Originating Summons dated the 16th day of August, 2004 and filed on the 17th day of August, 2004 sought for determination the following questions:

“1. Whether in the circumstances of this case and having regards to relevant available documents, Regulations Governing Conditions of Service of Senior/Junior Staff of the Polytechnic, Polytechnic Law Cap, 120, Laws of Kwara State, 1994, the Plaintiffs can be compulsorily retried by the Defendants from the service of the 1st Defendant.

“2. Whether on the proper construction and interpretation of the document attached to the affidavit herewith, Regulations governing conditions of service of Senior/Junior Staff of the Polytechnic, Polytechnic Law, Cap. 120 Laws of Kwara State, 1994, the Plaintiff is an academic staff and if so whether he can be retired from service of the 1st Defendant when he is yet to attain the age of 60 years or 65 years.”

Consequently, the Plaintiff/Respondent sought for the following reliefs:

“1. A Declaration that the compulsory retirement of the Plaintiff from the service of the 1st Defendant as communicated to the Plaintiff in the Defendants letter dated 19th May, 2004 and 16th July, 2004 respectively is ultra vires, void and of no effect whatsoever.

“2. An Order setting aside the said compulsory retirement as contained in the Defendants’ Letters dated 19th May, 2004 and 16th July, 2004 respectively to the Plaintiff.

“3. A Declaration that the Plaintiff is still in the service of the 1st Defendant and is entitled to his salaries; allowances and other entitlements of his office from May, 2004 till the day of the Judgment in this case and henceforth thereafter.

“4. An Order compelling the Defendants to reinstate the Plaintiff to his position as Chief Technologist with the defendants,

“5. An Order compelling the defendants to pay the Plaintiff the salaries, allowances and other entitlements from May, 2004 till the date of Judgment in this case and; henceforth thereafter until the Plaintiff duly retires from service.

“6, An Order restraining the Defendants, their agents, servants, privies or anybody acting on their instructions from further disturbing the Plaintiff until the he duly retires from the service of the 1st Defendant”

The Originating Summons was supported by an affidavit of twenty-nine paragraphs deposed to by the Plaintiff/Respondent with annexed Exhibits marked 1 – 16, A Further Affidavit of eighteen paragraphs in Reply to the Respondent’s Counter-Affidavit was also filed with annexures marked Exhibits 17A, Band C and 18 – 20 respectively.

Funke Abolarin of the chambers of the Counsel to Plaintiff/Respondent deposed to a Further Affidavit in reply to the Counter Affidavit of the Respondent Annexed to the said Further Affidavit is Exhibit 21 otherwise described as “ASUP 17 – 22.” In reaction to the Affidavits in support of Originating Summons, the Defendants (now the Appellants) filed two counter affidavits, the first which is of 36 paragraphs with annexures marked KP1 – KP10 while the second – a Further counter-affidavit of fifteen paragraphs – has annexed thereto “Exhibit KP11” The Defendants also filed a Notice of Preliminary Objection to the competence of the suit, which they argued together with the Originating Summons.

Issues having been joined the Learned Counsel on both sides addressed the court and in his judgment the Learned trial Judge Honourable Justice Folasade Ojo dismissed the Preliminary Objection of the Defendants/Appellants and granted all the reliefs sought by the Plaintiff/Respondent. Dissatisfied with the Judgment of the trial court the Appellants filed four original Grounds of Appeal in the lower court and by leave of this court the Notice and Grounds of Appeal were amended to incorporate Grounds 4 – 9.