Eperokun And Ors Vs. University Of Lagos (1986)
LawGlobal-Hub Lead Judgment Report
In this appeal we are being asked by the appellants to hold that Olaniyan & Ors. vs. University of Lagos (1985) 2 N. W.L.R. (Pt.9) 599 was correctly decided and that consequently, the facts in that case being admittedly on all fours (with but one slight variation) with those in the instant case, our judgment in this case should go the way Olaniyan went.
For the respondent we are asked to hold that OLANIYAN was decided per in curiam and that this being a full-court, we should overrule the said case and uphold the decisions of the two lower courts. PAGE| 2 The issues in controversy fall within a very narrow compass and although a lot of cases both here and in OLANIYAN were cited in argument, there is agreement between the parties on the primary facts.
The record shows that, although the appellants were the first to issue out a writ which did not proceed to trial, it was the respondents writ which was the basis of this case on appeal and in respect of which the appellants filed a counter-claim, couched in terms similar to their earlier writ. The respondents writ reads: Indorsements: ‘The plaintiff claims against the defendants – (1) a declaration that the appointment of each of the defendants as Registrar (in the case of the 1st defendant) or Professor (in the case of the 2nd and 3rd defendants) has been determined with effect from 1st January, 1981;
(2) An injunction restraining the defendants by themselves or their servants or agents from holding themselves out as or performing any of the functions of the Registrar of, or a Professor in the University of Lagos save with the consent of the plaintiff, and (3) an injunction restraining each of the defendants from occupying the quarters allocated to him by the plaintiff.’
PAGE| 3 The parties having joined issue, the appellants counter-claimed thus:” Whereof the defendants seek the following reliefs by way of counter-claims: In respect of the 1st defendant (a) A Declaration that the 1st defendant is Registrar and Secretary of the Council of the plaintiff and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 as amended.
(b) A Mandatory Injunction compelling the plaintiff to restore the 1st defendant to his post and positions aforesaid and to all the rights and privileges attached thereto. (ii) In respect of the 2nd defendant (a) A Declaration that the 2nd defendant is Professor of Biology and Dean of the Faculty of Science and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended); (b) A Mandatory Injunction compelling the plaintiff to restore the 2nd defendant to his post and positions aforesaid and to all rights and privileges attached thereto: (iii) In respect of the 3rd Defendant (a) A Declaration that the 3rd Defendant is Professor of Structural Engineering and Dean of the Faculty of Engineering and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended): (b) A Mandatory Injunction compelling the plaintiff to restore the 3rd Defendant to his post and positions aforesaid and to all the rights and privileges attached thereto: (iv) In respect of all the Defendants:
(a) A Declaration that the purported termination of the defendants appointments and conveyed in the letters dated the p 30th day of December 1980 addressed to them by the plaintiff is ultra vires the plaintiff, contrary to the provisions of Section 17 of the University of Lagos Act 1967 as amended and contrary to the principles of natural justice, null and void and of no effect whatsoever;
PAGE| 4 (b) A Declaration that the proceedings and decision of the Council of the Plaintiff held on the 30th of December 1980 wherein it was decided to terminate the appointment of the defendants is null and void and of no effect; (c) An Injunction restraining the Plaintiff, its servants and/or agents from preventing the Defendants from performing the functions and duties of their offices as Registrar and Secretary to the Council of the Plaintiff, Professor of Biology and Dean of the Faculty of Science and Professor of Structural Engineering and Dean of the Faculty of Engineering or from interfering with their enjoyment of the rights, privileges and benefits attached to the said offices. ‘E2’80 That the 1st appellant was the Registrar of the respondent and Secretary of its Council at the time the cause of action arose, is not disputed.
Also not disputed is the fact that 2nd and 3rd appellants were Professors in the faculties shown on the counter-claim in the employ of the respondent. It is also admitted that the conditions of service of each appellant were governed by – (a) Instrument of Appointment and (b) Memorandum of Appointment which had incorporated therein statutory provisions for the removal of academic and administrative officers and staff such as the appellants were. This is Section 17 of the University of Lagos Act No. 3 of 1967. As this appeal falls to be determined on the interpretation which this court will place on the said Section, it might not be entirely out of place to set it out in full here, so far as relevant.
Section 17(1) of the University of Lagos Act 1967 (as amended) No. 3 of 1967 reads:- ‘If it appears to the council that there are reasons for believing that the vice-chancellor, the deputy-vice-chancellor, the provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment the council shall – (a) Give notice of those reasons to the person in question; (b) make arrangements –
PAGE| 5 (ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and (c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter; and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council,’
On 24th January, 1984, Williams J. of the Lagos Judicial Division of the High Court of Lagos State after hearing the two sides in this case upheld the respondents claims against the appellants while at the same time dismissing the latters counter-claims. The appellants appeal against the decision of the High Court was dismissed on 14th January, 1985 by the Court of Appeal and hence this final appeal to this court. The grounds of appeal filed in this case are not dissimilar to those filed in the Olaniyan case (1985) 2 N.W.L.R. p.599. The facts as argued by learned counsel are also similar, the only area of difference being that these appellants after futile attempts to persuade the respondent to accept their services during the pendency of litigation, accepted employment elsewhere.
As to what effect, if any, this had on their case, there will be discussion later. The main issue in this appeal, it seems to me, is not whether at common law a master such as the respondent is, would be inhibited from dismissing its servant without ascribing cause or whether if conditions for dismissal are set out in a written document such as a contract of employment, then the master cannot avail himself of the terms of such a contract. Each case must be dealt with on its own peculiar facts. In upholding the OLANIYAN appeal this court made a number of findings which are in consonance with the facts established in that case. Some of these findings may be set down here in order to facilitate an understanding of this case:- (a) The appellants in that case did not hold their offices either at the pleasure of the Federal Government or any body at all. Rather, they held same under the provisions of the University of Lagos Act, No. 3 of 1967.
PAGE| 6 (b) The University of Lagos and the University Council being creatures of Statute, cannot act except within and under powers conferred on them by the relevant Statute, namely the University of Lagos Act, No. 3 of 1967 as amended.
(c) Since the regulations governing service in the University of Senior Staff, and the Memorandum of Appointments of the appellants and Section 17 of the University of Lagos Act No. 3 of 1967, all derive from Section 69(1)(b) of the 1963 Constitution Act No. 20 of 1963, they all have Constitutional force and invest in the appellants over whom they prevail a legal status which make their relationship with the respondents although one of master and servant, certainly beyond the ordinary or mere master and servant relationship. It is a relationship of master and servant with a statutory flavour; thus conferring a legal status on the appellants.
The respondents case was conducted at the High Court on the footing of the contractual relationship between it and the appellants, based on one of the clauses in the memorandum of appointment. To be precise this clause is number 7 in memorandum of appointment (Exhibit D3).
It reads:- ‘7 – The appointee shall not terminate his appointment other than on the 30th September in any year, after having given to the Council six months notice in writing of his intention to do so, unless the consent of the Council be otherwise obtained. Subject to the provisions of paragraph 8 below the Council shall not terminate the appointee without having given six months notice in writing of its intention to do so, or having tendered payment of six months salary in lieu of notice. In the case of notice already given, the Council may tender payment of the amount of salary G applicable to the period of notice unexpired and, upon its doing so, the appointment of the appointee shall determine.’
The above provision makes it possible for either party to put an end to the contract of employment in a given and appropriate situation. No one in these proceedings is contesting the right of either party to the contract to fall back on this provision. ‘
As was established in the OLANIYAN case, the respondent could not legally fall back on this provision. The court held that the case fell to be decided under clause 8 which calls into play the provisions of Section 17 of the University of Lagos Act which I had set out earlier on in this judgment. I must here re-iterate that the facts in the OLANIYAN case are on all fours with those in this appeal, save in the aspect hitherto adverted to. If this postulate is accepted and established, then the decision in this case cannot but go the way OLANIYAN went.
PAGE| 7 It was argued with some force that if the respondent has evidence of misconduct it can, at will, waive it and proceed to act on clause 7 of the memorandum of agreement. This indeed it can do, provided the appointee g has no knowledge of such allegation of misconduct. It must be remembered that Section 17 of the University of Lagos Act No. 3 of 1967 is an enactment designed to protect the interest
Other Citation: (1986) LCN/2267(SC)