Ebonyi State University & Ors V. Dr. (Mrs.) Mary J. Eteng (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the Judgment delivered on 19/3/2009 by the High Court of Ebonyi State (hereafter simply referred to as “the lower Court”) presided over by Hon. Justice A.N. Nwankwo, Chief Judge (hereafter simply referred to as “the learned trial C.J.”). In the Judgment, the learned trial C.J. inter alia, ordered the re-instatement of the Respondent as a senior academic staff and that she should be paid all arrears of salaries and allowances due to her.

The Respondent herein as Plaintiff instituted the instant case on Appeal against the Appellants before the lower Court. The case of the Respondent as set up in the Statement of Claim dated 7/4/2008 filed on the same date before the lower Court, briefly stated are that on 10/3/2005 the Respondent applied for an appointment with the 1st Appellant as a Lecturer 1, in the Department of Sociology/Anthropology and for her to transfer her services from the University of Port-Harcourt (hereafter simply referred to as UNIPORT”) to the 1st Appellant, on salary grade level HATISS 13/4 which was made personal to her. The Respondent prior to applying for the said appointment with the 1st Appellant was a confirmed staff of UNIPORT. The Respondent not only averred to the effect that her services were transferred from UNIPORT to the 1st Appellant, but also that her appointment was duly regularized.

Despite these, and to her surprise, by a letter dated 5/12/2007, her appointment was withdrawn with immediate effect by the Appellants. That in withdrawing her appointment, the Appellants did not comply with the 1st Appellant’s Regulations in relation to the conditions of service for Senior Staff. The Respondent claimed to have written two letters to the 2nd Appellant asking for the reason her appointment was withdrawn and that as she received no response to the letters, she later retained a lawyer to write the 1st Appellant to ask for the reason the Respondent’s appointment was withdrawn with immediate effect and her salaries and allowances stopped since December, 2007. The Respondent pleaded her reliance on the letter dated 12/2/2008 in this regard.

The Respondent said to the effect that she instituted the instant action after waiting for a reasonable time and to avoid the matter lingering on without any resolution. Having regard to the averments in paragraphs 2 – 5 of the Statement of Claim, the Respondent disclosed that the 1st Appellant is a body corporate established by law; the 2nd Appellant is responsible for the day- to-day running of the 1st Appellant and heads the 1st Appellant’s administration; the 3rd Appellant is the Pro-

Chancellor and Chairman of the Governing council of the 1st Appellant; while the 4th Appellant is the Acting Registrar of the 1st Appellant, and Secretary to the Governing Council of the 1st Appellant. The reliefs which the Respondent claimed against the Appellants jointly and severally as set out in paragraph 28 of the Statement of Claim read thus: –

“1. A declaration of Court that the Plaintiff’s appointment was wrongly terminated or “withdrawn” without following the due process and the rules guiding the regulation of senior staff discipline and therefore is null and void and of no effect.

2. Court declaration that the Plaintiff was not given a fair hearing before her appointment was withdrawn as she was not issued any queries or even oral warning for any offence against the university, contrary to the Constitution of the Federal Republic of Nigeria and the Regulations guiding EBSU Senior Staff appointment and discipline.
3. Court declaration that the plaintiff is still at all times a Bona fide staff of EBSU in the Department of Sociology/Anthropology.
4. An order directing EBSU to re-instate the Plaintiff to her former position as a lecturer on grade level UASS 5, step 2 in Dept. of Sociology/Anthropology of EBSU.
5. An order of court for EBSU to pay the Plaintiff all her outstanding salaries and allowances, promotions and advancement and other entitlements accruing to the Plaintiff from December, 2007 to the date of her recall or re-instatement.
6. Perpetual injunction restraining the university, her servants, agents and privies from further harassing the Plaintiff in the course of her duty/employment without due process.
7. The Plaintiff claims damages.”

The Appellants responded to the case set up by the Respondent as reviewed above, in their Statement of Defence dated 7/5/2008 and filed on the same date. The case set up by the Appellants, put briefly, is that the Respondent used to be a temporary and unconfirmed Lecturer II with the 1st Appellant until her services were no longer desired and same withdrawn by the authorities of the 1st Appellant in accordance with relevant regulations. It is the case of the Appellants that the Respondent’s salary was adjusted not because she had formally transferred from UNIPORT to the 1st Appellant but because her former salary at UNIPORT where she was an Assistant Registrar (a non-academic position) was higher than she could have been earning as a Lecturer II in the employ or service of the 1st Appellant.

The Appellants not only averred that the Respondent never transferred her services from UNIPORT to the 1st Appellant at any time and thereby remained on temporary appointment, but also that before the Respondent could have her appointment confirmed, they (Appellants) realised that the Respondent’s services were no longer required or acceptable, hence the same was withdrawn/terminated in accordance with the 1st Appellant’s regulations on conditions of service for Senior Staff. The Appellants also challenged the competence of the Respondent’s suit on the grounds: (i) that it was instituted without a pre-action notice to them as required by Section 31(1) of the Ebonyi State University Law, No. 7 of 1999 (hereafter simply referred to as “EBSU Law”) and (ii) that the suit was not commenced within 3 months of the act complained of, i.e. issuance of the letter of withdrawal of service, by the Appellants, as required by section 31(2) of EBSU Law.

At the hearing of the case, only the Respondent testified in her own behalf and tendered many Exhibits in the proof of her case; while the Appellants too called only a witness in the proof of their case. The learned trial C.J. against the backdrop of the pleadings of the parties; oral and documentary evidence adduced by the parties; and addresses of the respective learned Counsel to the parties, formulated the following issues for determination in the case: –

“1. Whether the action is statute barred.

2. Whether there is a binding contract of service between the Plaintiff and Defendants.
3. Whether the Plaintiff was given fair hearing/whether rule of natural justice was observed.
4. Whether the Plaintiff is a confirmed officer or a probationer.
5. Whether the Defendants were served Pre-Action Notice and whether the Defendants are deemed to have waived Pre-Action Notice.
6. Whether the Plaintiff proved her case.

The learned trial C.J. in his Judgment found that the Respondent’s appointment was wrongly terminated by the 4th Appellant and proceeded to make the following orders: –

“1. The termination/withdrawal of the Plaintiff’s appointment as Lecturer II in Ebonyi State University – Department of Sociology/Anthropology by letter dated 5th December, 2007 is ultra vires of the powers of the Registrar of Ebonyi State University, and void and ineffective.

2. That the purported withdrawal/termination of the appointment of the Plaintiff aforesaid is a complete violation of the Plaintiff’s fundamental rights of fair hearing before as contained in Section 36 of the 1999 Constitution and also a fundamental breach of EBSU regulations guiding the discipline of Senior Officers of EBSU and is therefore void.
3. That the Plaintiff is entitled to receive all her salaries, other entitlements and benefits including promotions accruable to her under the terms of her employment.
4. That the said letter of termination/withdrawal of appointment of the Plaintiff dated 5th December, 2007 is hereby set aside.
5. That the 2nd and 4th Defendants are ordered to re-instate the Plaintiff to her office and duty forthwith as Lecturer II.
6. That the Defendants are ordered to pay to the Plaintiff all accrued salaries and emoluments from 5th December, 2007 to date.”

Being aggrieved with the Judgment of the lower Court, the Appellants lodged an Appeal against the same by their undated Notice of Appeal filed on 14/4/2009. The Notice of Appeal contains five Grounds of Appeal. The Notice of Appeal was amended pursuant to the order of this Court made on 13/7/2010. The amended Notice of Appeal contains six Grounds of Appeal.