Kwara State Polytechnic, Ilorin & Anor. Vs. Mr. Kamaru Gbadebo Shittu (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice A. O. Bamgbola of Kwara State High Court in suit no. KWS/152/2009, delivered on 16th April 2010, wherein the learned trial Judge granted all the reliefs of the Respondent (who was the claimant at the lower court), and, specifically, ordered that the Respondent be re-instated in his office, with all his rights and privileges, including his salaries and other entitlements, from the date of the purported compulsory retirement, till the date of re-instatement.

In his reliefs, as per the originating summons, the Respondent, had prayed as follow:

(1) “A declaration that the purported compulsory retirement of the claimant, covered by letter dated 18th June, 2009, is ultra vires, unlawful, null and void, having regard to the terms of the claimant’s appointment with the Polytechnic, the Regulations governing conditions of the service for the Polytechnic staff and the provision of the State Polytechnic Law Cap S.12 Laws of Kwara State.

(2) A declaration that the purported compulsory retirement is also unconstitutional, null and void for want of fair hearing and compliance with the laid down statutory procedures for termination of appointment of confirmed staff of the Polytechnic.

(3) An order reinstating the claimant in his office in the 1st Defendant with all his rights and privileges attached thereto and without loss of promotion with effect from the date of the purported compulsory retirement.

(4) An order directing the defendants to pay the claimant all his salaries, emoluments and entitlements from the date of the purported compulsory retirement till the date of reinstatement and thence forth.”

The question for determination was:

“Is the purported compulsory retirement of the claimant, a confirmed academic staff of the Kwara State Polytechnic by the 2nd Defendant as conveyed in the letter dated 18th June 2009, on the alleged premise that his services were no longer required by the Polytechnic, when the claimant has neither attained the retirement age of 60 years nor put in 35 years of service and without any prior accusation of or hearing on allegation of misconduct, not ultra vires, unlawful, unconstitutional, null and void, having regard to the terms of the claimant’s appointment with the Polytechnic, the Regulations Governing Conditions of service, for the Polytechnic staff and the provisions of the State Polytechnic Law, Cap. 12 Laws of Kwara State?”

The learned trial court had resolved all that in favour of the claimant (Respondent) when it held:

“The claimant herein is a confirmed academic staff. He has demonstrated before this court that the letter exhibit KGS6 is to effect his premature retirement from the service of the 1st Defendant and that it was for a cause. By the provision of paragraph 11.14 of the Staff Regulations, the termination of a confirmed staff will usually follow the due processes under the Polytechnic Law.

Both learned counsel have agreed in their submissions, that when the matter is to remove a confirmed academic or senior staff of the Polytechnic from office on ground of misconduct or failure to perform the functions of his office, the procedure to follow are laid down under paragraph 11.15.2 (sic) of the Staff Regulations and Section 33 of the Kwara Staff (sic) Polytechnic Law. I must agree with learned Counsel, having read through the provisions in paragraph 11.5.2 of the Regulations and S.33 of the Polytechnic Law, that the Defendants owe the Claimant a duty to afford him a hearing in the circumstances of this case before terminating his appointment through compulsory retirement…

In the final result, the court must resolve the question for the determination in this case in the affirmative and, in the favour of the claimant. I hold that the purported retirement of the Claimant from the service of the Defendants (sic) ultra vires, unlawful, unconstitutional, null and void, having regard to the terms of the Claimant’s appointment… I therefore hold that all the reliefs sought for by the Claimant have merit. I enter judgment for the Claimant as per the claims on the originating summons.” (See pages 106 -107 of the Records).

That is the decision which the Appellants appealed against, as per their notice and grounds of appeal filed on 29/10/2010, disclosing 6 grounds of appeal as shown on pages 108 to 114 of the Records.