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Professor Dupe Olatunbosun V. Nigerian Institute Of Social And Economic Research Council (1988) LLJR-SC

Professor Dupe Olatunbosun V. Nigerian Institute Of Social And Economic Research Council (1988)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C. 

In the Court of first instance – the Ibadan Judicial Division of the Oyo State High Court – the Plaintiff claimed two Declarations, an Order for specific performance and an injunction as follows:-

“1. Declaration that the letter of the 31st March, 1978 reference No. NIS/SS/Conf.397 written by the Defendants to the Plaintiff indicating that the defendants are unable to regard the Plaintiffs services with the Old Institute as having been transferred to the New Institute is ultra vires the Nigerian Institute of Social and Economic Research Decree No. 70 of 1977, is illegal, null and void

OR In the alternative

  1. Declaration that in as much as the Plaintiff’s appointment was not transferred from the Old Institute to the New Institute the defendant has no power to determine the plaintiffs appointment.

Declaration that the Plaintiff holds a permanent appointment until he is 60 years of age and cannot be removed by the defendant or any Council without the consultation with the Senate and/or a hearing contrary to the Rules of Natural justice.

  1. An Order for specific performance of the Service agreement of the 4th of April 1975 and letter of appointment of 14th April, 1975 as preserved by Decree No.70 of 1977 Section 4.
  2. Injunction restraining the defendants from carrying the contents of the said letter into execution.

In the alternative to 3 and 4 supra. The plaintiff claims 1 Million Naira as damages for premature determination of his appointment”.

Pleadings were ordered, filed and exchanged. After due hearing on relevant evidence including a rather impressive array of over 80 exhibits, the learned trial Judge, Agbaje-Williams, J. in an equally long and impressive judgment of 48 pages found against the Plaintiff on each and every claim and ended thus at p.345 of the record – “The whole case is accordingly dismissed”.

Dissatisfied and aggrieved, the Plaintiff appealed to the Court of Appeal Ibadan Division coram Uche Omo, Sulu Gambari and Onu, JJ.C.A. That Court inspite of the multiplicity and prolixity of Issues formulated by the Plaintiff/Appellant identified the following 6 Issues as the “Main Issues For Determination in the appeal” namely:-

Issue No. 1

“Before the 14th December 1977, who was the employer of the appellant Was it the University of Ibadan, or Old NISER, or who else”

Issue No.2

“What were the appellant’s conditions of Service from 2/4/75 when he became a Professor until Exhibit 4 took effect”

Issue No.3

“Was the service of the appellant ever transferred to new NISER If so from what institution, and with effect from what date and by whom If not, in whose service was he as at 14/12/77”

Issue No.4

“Did new NISER have the power to determine his appointment If it did, was Exhibit 4 effectual in determining appellant’s employment What effect if any would Exhibits 3H and 3K have in this connection 7”

Issue No.5

“If the new NISER had the power to determine his appointment, was he wrongfully dismissed or terminated What is the relevance, if any, of the reasons for his dismissal or termination”

Issue No.6

“If the appellant was wrongfully dismissed, what is the measure of damages”

I will consider the Court of Appeal’s answers to the six Questions For Determination later on when I deal with the Grounds of Appeal and the Issues which naturally arise from those grounds. For the moment it is enough to say that after a very well-considered judgment, the Court of Appeal dismissed the Plaintiff’s appeal before it.

The Plaintiff having thus lost in the two Courts below, has now appealed to the Supreme Court on 16 Grounds of Errors in Law and Misdirections (in law and in fact). The apparent prolixity of the grounds filed reveal a certain misconception of the real issues in controversy between the parties. For since the Appellant as Plaintiff with his eyes wide open, sued the Nigerian Institute of Social and Economic Research Council (NISER for short) as Defendant claiming, inter alia, that “the determination of the appointment of the Plaintiff by NISER is wrongful…” it has to follow, that there existed the relationship of employer and employee, of master and servant, between the Plaintiff/Appellant and at least the Old NISER Institute, otherwise how else could the Plaintiff/Appellant have claimed:-

“1. A declaration that the letter dated 31st March, 1978 addressed by NISER to the Plaintiff informing the Plaintiff that NISER is unable to regard the Plaintiff’s Services with the Old Institute as having been transferred to NISER is ultra vires NISER”.

Services can only be transferred from one employer to another. If the Plaintiff’s argument is that he was an employee of the University of Ibadan, then he has argued himself out of Court, for, then again, he sued the wrong Defendant. He should have sued the University of Ibadan instead.

The true position however, as revealed by the pleadings of the parties, and as found by the two Courts below was that -“NISER is an autonomous institution established primarily for research into Nigeria’s economic and social problems (vide Exhibit 10). It has never been part of the University of Ibadan since the appellant’s appointment. The Appellant was appointed a “Research Professor in the Nigerian Institute of Social and Economic Research (vide Exhibit 2), and not in the University of Ibadan. Whilst it is true that the Registrar of the University of Ibadan signed the letter of offer to him, and acknowledged the letter of acceptance by him, he did not thereby appoint him to the University staff. In fact paragraphs 1, 3, 4 and 5 of the Plaintiffs Statement of Claim pleaded that the Institute was a corporate body with its own governing Council and that “the Plaintiff was first appointed in 1966 by the University of Ibadan as a Research Fellow in NISER”. Thus the finding of the two Courts below “that the appointment (of the Plaintiff/Appellant) was made by the University for and on behalf of NISER is absolutely in accordance with the pleadings and the various exhibits tendered, and therefore unassailable and correct. The Appellant’s employer had all along been the Old NISER.

Arising from the above premise the other live and central issues in this appeal will be:-

  1. What were the terms and conditions of the Appellant’s engagement or employment at, and with, NISER This issue will involve a consideration of:

(a) the letter or memorandum of offer which was accepted by the Appellant – a memorandum which both parties have agreed to be the basis and foundation of their contractual relationship;

(b) any Handbook regulating terms and conditions of Service in the Institute;

(c) the provisions of any Statute or Act (Decree) providing for and/or regulating Service conditions in the Institute.

In this regard I will mention that this Court’s decision in Olaniyan & Ors. v. University of Lagos (1985) 2 N.W.L.R. 599 was in effect predicated on the provision of Clause 7 of the Memorandum of Agreement between the parties and on the stipulation of Section 17(1) of the University of Lagos Act No.3 of 1967. Also in Babatunde Ajayi v. Texaco Nigeria Ltd. & Ors. (1987) 3 N.W.L.R. 577 a case in many ways similar to the one now on appeal, where the Plaintiff/Appellant claimed that the purported premature termination of his appointment by the payment of three months salary, before he attained the retiring age, was ultra vires null and void, there, the Court had to look at the terms of the written agreement between the parties and the “Employees Handbook” governing Service in the Defendant/Company in order to decide whether the Defendant/Company committed any breach of its contract with the Plaintiff by acting otherwise than in accordance with those terms and conditions. Again in Bashiru Alade Shiita-Bey v. The Federal Public Service Commission (1981) 1 S.C. 41 at p.56 the Court considered the effect of the Civil Service Rules of the Federal Public Service governing conditions of Service of the Federal Public Servants and held that “these Rules, therefore… have constitutional force and they invest the public servants over whom they prevail, a legal status.”

I will now consider the contract documents and any other Statute or Rules made thereunder regulating the contractual relationship of the parties in this case. Having held that the Appellant was employed by the University of Ibadan for and on ‘behalf of the Nigerian Institute of Social And Economic Research, it is now relevant to examine and review each and every document that will throw some light on the Appellant’s conditions of Service especially as these relate to provisions for the termination of the contract by either side. The Memorandum As To The Terms of Appointment signed by the Appellant was tendered as Exh. 3K. Paragraphs 10 and 11 of this Memorandum stipulate as follows:-

“10. The Professor 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 provision of paragraph 11 below the Council shall not terminate the appointment of the Professor 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 applicable to the period of notice unexpired.

Pursuant to Section 9 of the University of Ibadan Act, 1962, before any removal of an academic officer of the University is made the Senate shall be consulted by the Council.

  1. Should the Professor be convicted of a criminal offence involving moral turpitude or by reason of gross misconduct render it impracticable for the Council to continue to employ him, then the period of notice necessary to terminate the appointment shall be at the discretion of the Council” (italics mine).

There is also another document Exh. 3H setting out the entitlement of the Appellant. But Exh. 3K above is about the only document setting out how the contract of service it itself created could be terminated by either side. Although a public servant, it was never contended that the Civil Service Rules of the Federal Public Service were applicable to the Appellant.

Paragraph 10 of Exh. 3K referred to Section 9 of the University of Ibadan Act 1962 and made it a condition precedent that, before “an academic officer of the University” may be removed, the Senate of the University “shall be consulted by the Council”. Learned counsel for the Appellant in the two Courts below made very heavy weather of the failure of the NISER Council to consult the Senate before issuing its letter of termination of the appointment of the Appellant tendered as Exh. 4. This failure it was then submitted in the two Courts below vitiated Ex. 4 and rendered it totally ineffective and the consequent termination null and void.

The crucial, essential, and radical question that now arises is – Was the Appellant at the time of the issuance of Exh. 4 terminating his appointment, and his subsequent and consequent removal, “an academic officer of the University” to whom Section 9 of the University of Ibadan Act No. 37 of 1962 will apply Paragraph 6 of the Constitution of Old NISER contained in the NISER 1964/65 Annual Report tendered as Ex. 2 stipulates inter alia as follows:-

“Terms of appointment shall as far as is appropriate, be the same as for corresponding grades of the other academic staff of the University (italics mine).

The expression “as far as is appropriate” implies that not everything in the Memorandum as to Terms of Appointment” Ex. 3K is appropriate and applicable to the Appellant who was wholly and solely a Research Professor in NISER Exh. 3K, itself, is merely a proforma issued both to the Staff of the University of Ibadan and to the staff of NISER. It has therefore to be construed mutatis mutandis or “as far as is appropriate”. There was evidence; accepted by the trial Court, and affirmed by the Court of Appeal, that the Appellant was never an academic staff of the University of Ibadan; that he was never a Professor in, and of, the University of Ibadan; that he was never a member of the Senate of the University of Ibadan; that he never taught in the University of Ibadan. Rather he was wholly confined to research work in NISER itself, an autonomous Institute located in the University but not part of it. The Appellant himself clarifying the difference between Service in the University of Ibadan and service in NISER wrote inter alia:-

“I wish to clear this by stating that NISER’S appointments are quite independent of the University and more important, NISER operates a separate vote from the University”

(italics mine).

From the above admission of the Appellant himself, it is difficult to understand any argument from or for the Appellant, that his Terms and Conditions of Service will all be the same as obtained in the University; nor Appellant’s insistence that the NISER Council had an obligation to refer his case to the Ibadan University Senate before the issuance of Ex. 4. The two Courts below were right in holding that the NISER Governing Council was the only Council competent to terminate the appointment of the Appellant and that there was no obligation on the NISER Council to consult a non-existent Institute Senate before issuing Ex. 4 (the letter of termination of the Appellant’s appointment with NISER).

The Provisions of Section 9 of the University of Ibadan Act 1962.

I will now consider Section 9 of the University of Ibadan Act, since the first 2 Issues for Determination as formulated by the Appellant relate directly or indirectly to that section. These Issues as formulated in the Appellant’s Brief are as follows:-

“C. Issues For Determination

  1. Whether the Appellant must necessarily be an academic officer in the University of Ibadan and whether there must necessarily be a senate before the conditions contained in the Memorandum of (sic) Appearance (Appointment) Exhibits 3H and 3K could apply to the Appellant
  2. Having held that Section 9 of the University Act confers “special status on the relationship between the University (sic) as (and) the Appointee,” whether it is open to the Court of Appeal to deny the Appellant the security of tenure of office which the University of Ibadan as the appointee intended to confer”.

To resolve and determine these two Issues one has to construe Section 9 of the University of Ibadan Act 1962 side by side with EXS. 3H and 3K to find out whether or not that Section applies to employees like the Appellant who were employed by tile University not for University service but for and on behalf of the Nigerian Institute of Social and Economic Research (NISER).

The said Section 9 stipulates:

9(1) ……………………

(2) ……………………

(3) …………………..

If it appeals to the Council that there are reasons for believing that the Vice-Chancellor, the Deputy Vice-Chancellor or any other person employed as a member of the staff of the University should be removed from his employment on either of the grounds aforesaid (of misconduct or of inability to perform the functions of his office), the Council shall-

a) give notice of those reasons to the person in question;

(b) afford him an opportunity of making representations in person on the matter to the Council; and

(c) if he or any three members of the Council so requests within the period of one month beginning with the date of the notice make arrangement –

(i) for a joint committee of the Council and the Senate to investigate the matter and report on it to the Council; and

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(ii) for the person in question to be afforded an opportunity of appearing before and of being heard by the committee with respect to the matter;

and if the Council, after considering any representations and report made in pursuance of this sub-section, 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”.

Section 9 above aims at guaranteeing the security of tenure of University Professors, Lecturers and other members of staff of the University. Section 9 of the University of Ibadan Act is in pari materia with Section 17 of the University of Lagos Act of 1967 under which Olaniyan supra and Eperokun supra were both decided. It was also decided in those two cases, following our decision in Shitta-Bey supra that these sections confer on the University staff a “special status” over and above the normal contractual relationship of master and servant. The only way to terminate such a contract of service with statutory flavour is to comply religiously with the procedure laid down in the Statute – here by Section 9(3) of the University of Ibadan Act 1962.

Although the two Courts below correctly held that the Appellant was never a staff of the University of Ibadan, they also held that the contract document signed by the Appellant – EX. 3K – was a proforma issued also to the staff of the University and therefore it had to be construed mutatis mutandis to reflect the peculiar circumstances of the Appellant’s appointment as a Research Professor at NISER. That too is correct. But was it necessary, that in construing Ex. 3H and Ex. 3K the two Courts below ought to have adverted to Section 9 of the University of Ibadan Act which offered security of service to the staff of the University of similar grade and standing as the Appellant I think the answer is No. They need not go so far. It may be both necessary and convenient at this stage to reproduce Ex. 3H:-

“University of Ibadan, Ibadan Nigeria

Personal & Confidential

Ref/No.P.912

14th April, 1975

Dr. Dupe Olatunbosun,

N.I.S.E.R.,

University of Ibadan,

Dear Sir,

I write on behalf of the Council of the University of Ibadan to offer you an appointment as a Research Professor in the Nigerian Institute of Social and Economic Research. The appointment, which dates from 2nd April 1975 and it is to retiring age which is normally 60 years.

Your salary will be at the fixed rate of N6,600 a year (precurrent salary review). You will be eligible for the following:-

(a) First class air or approved class sea passages for approved overseas study leave once every three years for yourself, your wife and up to five children in accordance with the details regulations approved by the Council of the University from time to time.

(b) Part furnished residential accommodation at a rent which does not exceed 7% of your salary or housing allowance at the rate of N60 a month if University accommodation is not available.

(c) Free medical attention, and hospital accommodation at reduced charges for yourself and your family (i.e. your wife and children).

(d) Superannuation benefits under the Nigerian Universities Joint Superannuation Scheme.

(e) A car allowance of N40 a month, if you own and run a car which is in a road worthy condition.

I enclose herewith two copies of Memorandum of Appointment. If you decide to accept the appointment on the terms set out please sign one copy over a ten kobo stamp and return to me.

Yours faithfully,

S.A. Odumuye

Deputy Registrar”

The Memorandum of Appointment referred to above was Ex. 3H which the Appellant signed. It is my view that Ex. 3H above created a contract which looked very much like a contract “ad vitam aut culpam” if one limits the “vita” to 60 years. It (Ex. 3H) definitely created an office to be held by the Appellant quamdiu se bene gesserit or until he attained the retiring age of 60 years as fixed in Ex. 3H.

I therefore hold the view that the Appellant not being a staff of the University of Ibadan cannot derive his security of Service from Section 9 of the University of Ibadan Act. Rather Ex. 3H invested him with a status similar to Professors of corresponding grade in the University itself. If a dockworker, as in Vine v. National Dock Labour Board (1956) 3 All E.R. 944: (1957) A.C. 500; a Legal Adviser in the Ministry of Justice as in Bashir Alade Shitta-Bey v.

The Federal Public Service Commission (1981) 1 S.C. 40; University Professors as in Olaniyan & Ors. v. The University of Lagos (1985) 2 N.W.L.R. 599 – all acquired special status over and above the ordinary contractual relationship of master and servant at common law, I see no reason why a Professor like the Appellant should be treated differently simply because he was assigned research duties in the Nigerian Institute of Social and Economic Research.

Exhibit 3H allowed him to enjoy the status of a Professor and the rules of Natural Justice gave him a right to a fair hearing if he is to be removed for misconduct. My answer to Issues Nos. 1 and 2 as formulated in the Appellant’s Brief is that the conditions of Service of the Appellant are as contained in Ex. 3H and Ex. 3K. His contract was not a contract with statutory flavour, yet it was one which cannot be terminated on the ground of misconduct without giving him the opportunity to defend that conduct. Olaniyan supra and Eperokun v. University of Lagos (1986) 4 N.W.L.R. 162 both apply.

The Appellant’s case will therefore squarely rest on Exhs. 3H and 3K. It is now necessary to find out whether Ex. 4 accords with Ex. 3K and Decree No. 70 of 1977. I will reproduce hereunder the said Ex. 4

“Nigerian Institute of Social And Economic Research

31st March, 1978

Professor Dupe Olatunbosun,

N.I.S.E.R.,

University of Ibadan,

Ibadan.

Dear Professor Olatunbosun,

I am directed by the Governing Council of the Nigerian Institute of Social and Economic Research to inform you that they regret that they are unable to regard your services with the Old Institute as having been transferred to the New Institute.

This decision, taken under Section 4 of Schedule 2 of the Nigerian Institute of Social and Economic Research Decree 1977, takes effect as from the 1st day of April, 1978.

The Accountant has been instructed to pay you six months’ salary as well as other entitlements after she has deducted such sums as you may owe the Institute.

Yours faithfully,

(Sgd.) H.M.A. Onitiri

Director”

Paragraph 2 of the letter, Ex. 4, clearly stated that the decision, not to regard the services of the Appellant with the Old NISER Council as having been transferred to the New NISER Council, was taken under Section 4 of Schedule 2 of the NISER Decree No. 70 of 1977. It may also be assumed that the decision was also taken under the self same Decree No. 70 of 1977. The crucial question that now arises is this – Has the Respondent/Council the power, the vires under Section 4 of Schedule 2 of the NISER Decree No.70 of 1977, to effectively and validly issue Ex. 4 On this most important issue the Plaintiff/Appellant in paragraphs 8, and 13 of his Statement of Claim pleaded as follows:-

“8. By virtue of Section 4 of Schedule 11 of the said NISER Decree No. 70 of 1977, all those working for NISER before the 14th of December, 1977 automatically became employees of NISER under the new Decree, and their Services, were deemed transferred with effect from that day under terms and conditions not less favourable than those obtaining immediately before the 14th of December, 1977.

  1. The Plaintiff will contend at the trial that the defendants exceeded their powers in purporting not to accept the transfer of the appointment of the Plaintiff to the New Institute as stipulated in the Decree No. 70 of 1977”.

In answer to these two important paragraphs of the Statement of Claim, the Defendant countered in paragraph 8 of its Statement of Defence as follows:-

“8. The Defendant avers that it has powers to determine the appointment of the plaintiff and that it did so after consideration of plaintiff’s conduct at the Institute and after due hearing has been given to the plaintiff”.

One comment I am obliged to make at this stage is that pleading is a delicate art, which requires considerable tact; assiduity, effort, and circumspection. A good pleader will naturally limit himself to the issue raised by the Statement of Claim (here the vires of the Respondent to issue Ex. 4 under the NISER Decree). The Defendant/Respondent should have been restrained and careful not to introduce colateral or bilateral issues which may either befog the central issue or else complicate the case unduly. What the Plaintiff called into question in paragraphs 8 and 13 of his Statement of Claim was the proper construction of Section 4 of Schedule 2 of the NISER Decree No. 70 of 1977 and whether if properly construed the New Institute had or lacked the power to terminate his appointment. This is a simple straightforward issue. It was the Defendant itself that expanded the scope of the inquiry by gratuitously introducing the conduct or rather the misconduct of the Plaintiff/Appellant and by recklessly stepping into the delicate, difficult and sometimes dangerous arena of fair hearing or “due hearing” which it pleaded.

I will consider the issue of vires first, the issue whether or not the Respondent/Council had the power to legally terminate the Appointment of the Appellant. This is exactly Issue NO.5 as formulated in the Appellant’s Brief to wit:-

“5. Whether the Court of Appeal was right in holding that the Appellant’s services were never transferred and if so, whether the New NISER was right in assuming jurisdiction to determine the Services of the Appellant who was never their employee”

I think it ought to be common ground that under their contract document Memorandum as to Terms of Appointment – Ex. 3K, the Appellant as well as the Old NISER/Institute, could under paragraph 10 of Ex. 3K terminate the appointment created by the self same Ex. 3K. The Old Institute could do this D by giving the Professor (that is the Appellant) “six months’ notice in writing of its intention to do so” or tendering “payment of six months’ salary in lieu of notice.” Exhibit 4, the letter terminating the appointment of the Appellant clearly stated that “the Accountant has been instructed to pay you six months’ salary….”. This obviously is salary in lieu of notice as prescribed by paragraph 10 of Ex. 3K. In other words, if it were the Old Institute that issued the letter of termination of appointment, it would have been acting well within its powers under the contract created by Ex. 3K. Could the New Institute/Council created by Decree No. 70 of 1977 do just that That is the question. And the answer will be found in Sections 2 and 4 of Schedule 2 to NISER Act No. 70 of 1977. I will deal with Section 4 first. That Section stipulates:-

“4. Notwithstanding the provisions of the University of Ibadan Act 1962, or of any statutes made thereunder or any provision of this Decree but subject to such directions as may be issued by the Council, any person who immediately before the date of commencement of this Decree held office under the Old Institute shall be deemed to have been transferred to the New Institute established under this Decree on terms and conditions not less favourable than those obtaining immediately before the commencement of this Decree; and service under the Old Institute shall be deemed to be service under the Institute established under this Decree for pension purposes”.

The Appellant signed the Contract document Ex. 3K on 9/4/75. He therefore qualifies as “a person who immediately before the commencement of this Decree” (which was 14th December 1977) “held office under the Old Institute.” In normal and ordinary circumstances the Appellant’s services in the Old Institute would have been transferred to the New Institute. But two expressions in Section 4 above would appear to militate against the Appellant’s contention that the transfer of his services from the Old Institute to the New Institute was, as he put it, “automatic.” These expressions are:-

(i) Notwithstanding; and

(ii) “subject to such directions as may be issued by the Council”.

The expression “notwithstanding” is a term of exclusion. As used in Section 4 of Schedule 2 to Act No. 70 of 1977, it means that no provision of the University of Ibadan Act No. 37’of 1962, or any statute made under It, or any provisions of the Decree itself shall be allowed to prevail over the provisions of Section 4 of Schedule 2 above. These other provisions shall be no impediment to the measures outlined in the said Section 4 of Schedule 2. The only thing allowed to interfere with “deeming services in the Old Institute to have been transferred to the New Institute” is “such directions as may be issued by the Council” – the New NISERI Council. The expression “subject to” means what it says. The transfer of Services from the Old Institute to the New Council is subject to and dependent on directions issued by the New Council. There is no absolute unconditional transfer of service from the Old NISER/Institute to the New Institute/Council. Any transfer has to be conditional to “such directions” as the New Council may wish to issue: see Rossdale v. Denny (1921) Ch. 57. The transfer of services from the Old Institute to the New Council is predicated on such directions as the New Council may wish to make. It is governed or affected by, or subservient to, those directions. The New Institute/Council reserved to itself the right, statutorily granted by Section 4 of Schedule 2 to NISER Act No. 70 of 1977, to accept or reject the transfer to it of the services of any staff of the Old Institute. The Respondent/Council exercised that right in paragraph 1 of Ex. 4. The Court of Appeal was therefore right in holding that because of Ex. 4 (the first paragraph) the Appellant’s services in the Old Institute were never transferred to the New Institute/Council the present Respondent.

Then to the subsidiary issue, a corollary to the main Issue No.5 – “Was the Respondent right in assuming jurisdiction to determine the services of the Appellant who was never their employee” This question has been answered by Section 2 of Schedule 2 to NISER Act No. 70 of 1977.viz:-

“2. As from the date of commencement of this Decree –

(a) all rights, interests, obligations of the Old Institute existing immediately before the commencement of this Decree under any contract or instrument, or at law or in equity apart from any contract or instrument, shall by virtue of this Decree be assigned and vested in the Council;

(b) any such contract or instrument as mentioned in paragraph (a) above shall be of the same force and effect against or in favour of the Council and shall be enforceable as fully and effectively, as if instead of the Old Institute, the Council had been named therein or had been a party thereto; and

(c) the Council shall be subject to all obligations and liabilities to which the Old Institute was subject immediately before the date of commencement of this Decree, and all other persons shall as from the date of this Decree, have the same rights, powers and remedies against the Council as they had against the Old Institute immediately before the date of commencement of this Decree”

(italics mine).

By Section 2(a) above all rights of the Old Institute under the Contract of employment of the Appellant (Ex. 3K) have been assigned to and vested in the Respondent/Council. These rights include the right to terminate the contract, Ex. 3K, as provided by and in paragraph 10 of the selfsame Ex. 3K by giving the Professor/Appellant six months’ notice or tendering to him payment of six months’ salary in lieu of notice. This was exactly what the Respondent did in paragraph 3 of Ex. 4. To make the point clearer and ex abundanti cautela, Section 2(b) of Schedule 2 of the NISER Decree No. 70 of 1977 specifically provided that the New Council- the Respondent – shall be regarded as a party named in any subsisting contract with the Old Institute. If therefore Ex. 3K was deemed to have been made between the Respondent and the Appellant, there can be no argument that either party to Ex. 3K can terminate it in accordance with the terms and stipulations therein contained and agreed to and binding on the parties. The answer to the 2nd limb of Issue No.5 as formulated by the Appellant – “Whether the Respondent was right in assuming jurisdiction to determine the services of the Appellant who was never their employee” is yes. It derived that “right” and the necessary “jurisdiction” from Section 2(a) and 2(b) of the Second Schedule to the N.I.S.E.R. Act No. 70 of 1977. I therefore hold that, barring the Respondent’s own pleading in paragraphs 8 and 9 of the Statement of Defence referring to the misconduct of the Appellant, Ex. 4 would have effectively, effectually and validly determined the contract created by Ex. 3K paragraph 10 of which ended thus:-

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“10. ….having tendered payment of six months’ salary in lieu of notice, …. upon it doing so, the appointment of the Professor shall terminate immediately”

I will therefore decide Issue No.5 against the Appellant.

I will now deal with Issues Nos. 6 and 7 in the Appellant’s Brief. As formulated they are as follows:-

“6. Whether the Appellant was removed for misconduct or not, having regard to the pleadings particularly paragraphs 8, 9 and 10 of the Statement of Defence the printed evidence and the findings of the trial Judge.

  1. Whether the Council of the New N.I.S.E.R. which consisted of new members gave the Appellant any hearing much less a fair hearing contrary to the holding of the Court of Appeal and the unchallenged evidence of the only member of the New Council who testified … and the fact that those who took the decision included Appellant’s accusers”.

Since I held that Ex. 3H made the Appellant an officer “ad vitam aut culpam” or at least, one holding his office quamdiu se bene gesserit he held a public and pensionable office only to be dismissed after due process. The Appellant’s right to a fair hearing before dismissal for misconduct is founded mainly and solely on the rules of natural justice or as Lord Campbell would like to call them – “the principles of eternal justice”. See Ex parte Ramshay (1852) 18 W.B. 173 at p.190. The right to be heard is such an important, radical and protective right that the Courts strain every nerve to uphold it and even to imply it, where a statutory form of protection would be less effective if it did not carry with it the right to be heard: Malloch v. Aberdeen Corporation (1971) 2 All E.R. (HL) 1278 at pp.1282/1283.

Was the Appellant heard – What are the pleadings; what is the evidence: what are the findings The Defendant/Council now Respondent pleaded in paragraph R. 9 and 10 of its Statement of Defence as follows:-

“8. The Defendant avers that it has the powers to determine the appointment of the plaintiff and that it did so after consideration of the Plaintiffs conduct at the Institute and after – due hearing has been given to the plaintiff.

  1. Further to paragraph 8 above the Defendant states that the plaintiffs conduct at the Institute soon after he became a Professor had not been conducive to discipline, order and peace and this has affected the morale of the staff of the Institute and consequently his continued presence in N.I.S. E.R. is not in the best interest of the Institute.
  2. The Defendant avers that it met for the first time since it was set up on the 29th day of March 1978 … and that it look the decision to determine the plaintiff’s appointment that day” (the italics are mine to show the sequence of events leading to the dismissal of the Plaintiff/Appellant).

From the paragraphs of the Statement of Defence (paras. 8-10) the Defendant/Respondent is not contesting the issue that the Plaintiff/Appellant was “dismissed”, that his appointment was terminated because “his conduct was no longer conducive to discipline, order, peace” in the Institute. These are very grave and serious allegations to make against a Professor. On Issue No. 6 therefore I hold that the Plaintiff/Appellant was definitely removed because of, or “after consideration of his conduct” or “as a consequence” of the fact that “his continued presence in N.I.S.E.R. is not in the best interest of the Institute.” All these mean the same thing that is – he was removed for misconduct.

I agree that where a contract had been properly terminated, intention and motive both become irrelevant: see Taiwo v. Kingsway Stores Ltd. 19 N.L.R. 123: Baker v. The Denkera Ashanti Corporation Ltd. 20 T.L.R. 37: Ajayi v. Texaco Nigeria Ltd. (1987) 3 N.W.L.R. 577. But where a Defendant pleads that a plaintiff is being removed for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct: Olaniya supra: Eperokun supra. The fact was even accepted by the Defendant/Respondent’s pleading in paragraphs 8, 9 and 10 which aver that “due hearing had been given to the Plaintiff.” The crucial live issue, from the pleadings, then was, not whether the Plaintiff/Appellant was entitled to “due hearing”; it was not whether he ought 10 be heard, (that seems to have been conceded). The issue was whether he was ill fact heard either by the Respondent or the Old Institute

Was the Appellant given any hearing at all by the newly constituted NISER/Council-the present Respondent Here Ex. 39 reproduced at pages 361 to 370 becomes relevant. Exhibit 39 started thus:-

“The first meeting of the Council of the Nigerian Institute of Social and Economic Research established by Decree No. 70 of 1977 was held at the NISER Seminar Room on Wednesday, 29th March, 1978”.

Council members in attendance included Professor H.M.A. Onitiri, the Director of the Institute, who the Appellant alleged in paragraph 3of his Reply to Statement of Defence was “hostile” and “aggressive’ to him and who, the Appellant further alleged, “maliciously endeavoured and contrived to frustrate and annoy the Plaintiff out of NISER”. The Plaintiff/Appellant was not invited to this meeting of 29th March 1978, where his fate was decided, to defend himself orally. I am however not unaware of the fact that the right to be heard – the audi alteram partem aspect of the right to fair hearing – does not entitle the Appellant only and solely to oral evidence to be given before this important Council meeting. It will be just as good and enough if the Appellant was asked to submit a written defence: see S. O. Adedeji v. Police Service Commission (1967) 1 All N.L.R. 67. But this, again, was not done. The Appellant was not heard orally; he was not asked to submit any written defence to the Respondent.

That no man is to be judged unheard was as old as Creation, as old as Genesis and as old as the Garden of Eden. In R v. Chancellor of the University of Cambridge (1723) 1 Str 557 at p.567 we find Fortescue, J. affirming that:-

“….even God himself did not pass sentence upon Adam before he was called upon to make his defence…”

And what was Adam’s defence It was this:-

“The woman whom thou gavest to be with me, she gave me the fruit of the tree and I did eat” (Gen. 3:12).

God did not also condemn Eve unheard:-

“Then the Lord said to the woman what is this that you have done”

What was Eve’s defence Eve said:-

“The serpent beguiled me and I did eat” Gen. 3:13. (Passing the buck)

Having heard both of them, Almighty God proceeded to pass His sentence. He expects us to do the same. Thus Coke that indomitable and fearless Lord Justice of the Common Plea was able to assert that, audi alteram partem, “was a principle of divine justice” proceeding with (i) vocat then (ii) Interrogat and finally (iii) Judicat. I shall come to this later when I consider the practical effect of the failure to hear the Appellant in the peculiar circumstances of this case especially in view of Exs. 3H, 3K and 4 and Section 4 of Schedule 2 of Decree No. 70 of 1977.

In his Brief of Argument on this all important issue of fair hearing in accordance with the rules of natural justice the Respondent submitted severally as follow:-

At p. 28 its Brief

“(i) The Appellant in his Brief at page 23 paragraph 16 submitted that:-

“a body like the New Council constituted under the Act that is Decree No. 70 of 1977 should be free to give its decision unhindered and unprejudiced in any way by the proceedings or by the impression of the Old NISER on the matter. The Council of the New NISER is a new body and any attempt to grant any idea of the Old Council into the New is like putting “a new wine into an old bottle” which is bound to end in confusion and chaos or in plain language miscarriage of justice”.

This submission is misconceived. By this submission, the Appellant admitted that he was given a fair hearing by the Council of the Old NISER but that the New NISER failed to re-open the issue and give him a new hearing”.

I will deal with this submission later on when I consider whether hearing before the Old Institute constituted a hearing by the Respondent.

At page 29 of its Brief

(ii) “It is submitted that the New Council needs not re-open any hearing with the Appellant before exercising its rights under paragraph 4 to Schedule 2 of Decree No. 70”.

I am amazed at the above submission which incidentally is the right legal position but which is not the case pleaded by the Respondent. As I observed earlier on, all the Plaintiff/Appellant pleaded in paragraphs 13 and 15 of his Statement of Claim was that under Section 4 of the 2nd Schedule to Decree No. 70 of 1977 the transfer of his services from the Old Institute to the New NISER/Council was automatic and that the Respondent lacked the power under that self same Section 4 to terminate his appointment. It was the Respondent itself who countered by pleading in paragraph 8 of its Statement of Defence that the appointment was determined “after consideration of the Plaintiffs conduct at the Institute and after due hearing has been given to the plaintiff. Having itself raised the issue of “misconduct” and “due hearing” the Respondent cannot now run away from those issues and take cover under Section 4 of Schedule 2 of Decree No. 70 of 1977. The case was fought on the basis that the cumulative effect of the misdeeds of the Appellant justified his removal -call it termination or dismissal the essential effect is the same – the Appellant is no longer serving the Council. The Respondent is bound by its pleadings and by the case he presented pursuant to those pleadings.

At p. 30 of the Respondent’s Brief

(iii) “…..it was after all these procedures that the Old Council decided that the appellant be redeployed. Since the problem remained with the Institute unsolved immediately before Decree No. 70 was promulgated it is submitted that the New Council needs not re-open the issue before exercising his powers under the Decree. The question of fair hearing or hearing at all does not arise in this case. The appellant was not dismissed but terminated in that he was given six months’ salary in lieu of notice and also his entitlements including gratuity for all the years he served”.

There seems to be some legal and factual misconceptions here. Legally both termination and dismissal all imply removal from a particular employment. The consequences may vary. Dismissal may entail loss of benefits while termination may not. In Olaniyan’s case supra this Court held inter alia:-

“However, in public employment where the employee is qualified by appointment to a permanent and pensionable position, and has actually satisfied the conditions, there should in the interest of justice, be a presumption that the employment cannot be terminated by mere notice, but should be terminated only for misconduct or other specified reasons”.

The employment is ad culpam or quamdiu se bene gesserit. It does not therefore matter whether the Appellant’s services were terminated or whether the Appellant was dismissed, he has to be terminated or dismissed for cause shown. On the facts the Defendant/Respondent pleaded thus in paragraph 9 of its Statement of Defence:-

“9 ….. the plaintiff’s conduct at the Institute soon after he became a Professor had not been conducive to discipline, order and peace, and thus has affected the morale of the staff of the Institute and consequently his continued presence in NISER is not in the best interest of the Institute”.

After pleading thus the Defendant/Respondent has made the conduct or misconduct of the Plaintiff/Appellant the central issue. The Respondent is estopped from arguing otherwise.

The Council Meeting 29th March 1978

As I observed earlier on the Appellant was not invited to this meeting to present his case before the Respondent. Rather:-

“The Chairman recounted the history of the case for the benefit of the new members of the Council adding that all documents connected with this case had already been circulated. He started by recalling that Professor’ Olatunbosun defied the Director’s instructions not to travel abroad in connection with the Prince town project The Committee then decided that the Chairman should request the Vice Chancellor of the University of Ibadan to redeploy Professor Olatunbosun from the Institute. The Chairman further added that the University wrote back to say that the responsibility of dealing with Professor Olalunbosun was that of the Institute ….

Now that NISER was on its own the Chairman invited members to deal with this matter once and for all, so that the Institute’s work can proceed unhindered …. One member suggested that Professor Olatunbosun be given another opportunity. To this the Chairman replied that from reports reaching him Professor Olatunbosun’s attitude had not changed and that his presence in the Institute was no longer conducive to the proper running of the Organisation.

After the matter had been discussed at length a member introduced the following motion:-

“that in accordance with Section 4, Schedule 2 of the Decree establishing NISER as an autonomous body, Council is unable to regard Professor Olatunbosun’s services as having been transferred to the New Institute under the Decree.”A

This motion was adopted by six votes to one and the Director was mandated to convey the decision to Professor Olatunbosun”

(italics mine).

It was as a result of the decision reached at this meeting that the letter Ex. 4 terminating the appointment of the Appellant was written. Can it be safely said that the proceedings of and at this meeting satisfied all the requirements of rules of Natural Justice My answer is No for the following reasons

  1. Three new members – Dr. E.A. Orage, Professor E.C. Edozien and Mr. J.F. Okoro who took part in the meeting of the 29th March 1978 did not take part in the earlier meeting of 23rd September 1977 and other meetings where the conduct and misconduct of the Appellant was discussed. How are these 3 new members to recapture from the minutes the impression Professor Olatunbosun made on the former members who saw and heard him testify
  2. When a member suggested that Professor Olatunbosun be given another opportunity the Chairman countered by saying that “from the reports reaching him Professor Olatunbosun’s attitude had not changed”. One of the essential elements of fair hearing is that the body investigating the charge (in this case of misconduct) must not receive evidence or representation behind the back of the person being investigated. This was our decision in Garba v. Universiry of Maiduguri (1986) 1 N.W.L.R. 550 at p.618. In that case this Court also added that “the Court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might. The risk of it is enough”.
See also  Bisiriyu Agbomeji V. Liadi Bakare & Ors (1998) LLJR-SC

From the above it is my view that the Appellant was not given a fair hearing by the Respondent/Council.

Arising from the Respondent’s Brief is the question whether the Appellant was given a fair hearing by the Old Institute. To my mind that question does not arise as the Old Institute never dismissed or terminated the appointment of the Appellant. The right to a fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the Appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the Appellant be given ample opportunity to defend his conduct. Even if it is held that the Old Institute gave the Appellant a hearing, it has to be observed that after such hearing it merely recommended to the Vice Chancellor to redeploy the Appellant. The Old Institute never recommended the dismissal or termination of Appellant’s appointment. The New Council, the Respondent, cannot on the self same evidence before the Old Institute, recommend more than what on that same evidence, the Old Institute recommended. If therefore the New Council, the present Respondent wanted to go beyond what the Old Institute recommended; if it decided to terminate the appointment of an officer holding a public and pensionable office, it must be for, cause shown, it must be aut culpam. So many causes were open to the Respondent. But for anyone of such causes, there has to be a specific allegation of wrong doing and an opportunity given to the Appellant to be heard in defence. Just how could a responsible body of men like the Respondent/Council have reached a decision to terminate the appointment of the Appellant on charges of wrong doing clearly pleaded in paragraphs 8, 9 and 10 of the Statement of Defence without hearing him (the Appellant) And that was where the Respondent went wrong.

I will now summarise my answers to the six Questions For Determination as formulated by the Court of Appeal at page 522 of the record of proceedings:-

Question No. 1

Before the 14th December 1977, who was the employer of the appellant Was it the University of Ibadan or Old NISER or who else

Answer: The University of Ibadan employed the Appellant for and on behalf of the Old Institute – NISER. The two Courts below made the same finding and 1 dare say they were right.

Question No.2

What were the Appellant’s conditions of Service from 2/4/75 when he became Professor until Ex. 4 took effect

Answer: The Old NISER, according to the evidence of Charles Balogun (D.W.5) who was then the Acting Secretary to the Institute, had no independent Memorandum as to terms of Appointment. Exhibits 3H and 3K were issued to both staffs of the University of Ibadan and NISER on condition (as stated in paragraph 6 of NISER Constitution Ex. 2) that those “terms of appointment shall, so far as is appropriate be the same as corresponding grades of the other academic staff of the University”. I further hold that the framework of Exs. 3H and 3K imported by implication the security of tenure of NISER Professors.

Question No.3:

Were the services of the Appellant ever transferred to the New Niser

Answer: The New NISER/Council, the Respondent, in this appeal, exercised its right under Section 4 of the 2nd Schedule to the NISER Decree 1977 and directed per Ex. 4 that the Appellant’s services with the Old NISER/ Institute should not be transferred to it. The two Courts below were right in holding that the Respondent “properly exercised its power under the Decree No. 70 of 1977”.

The Respondent terminated the appointment of the Appellant per Ex. 4.

Question No. 4(i):

Did the New NISER/Council have the power to determine the Appellant’s appointment

Answer: From the combined effect of Sections 2 and 4 of Schedule 2 to the NISER Decree No. 70 of 1977 the answer is yes. The Court below also gave the right answer to this limb of the question.

Question No. 4(ii):

Was Ex. 4 effectual in determining appellant’s appointment. The two Courts below say yes. With respect I say No.

Answer: In so far as the Respondent/Council pleaded in paragraphs 8, 9, 10 of its Statement of Defence that the plaintiffs removal was “after consideration of his conduct at the Institute and after due hearing …. “, Ex. 4 would be effectual in determining appellant’s appointment only on proof that Appellant was in fact accorded his right of fair hearing at least under the Rules and dictates of natural justice. Also on the authority of Malloch v. Aberdeen Corporation supra the Court should examine closely the framework, the con and intendment” of Exs. 3H and 3K and “see whether the elementary right of fair hearing were conferred” on the Appellant “either’ expressly or by implication”. For the protection of this elementary right it is necessary to infer that the right was implicit from Ex. 3H and Ex. 3K. In any event paragraphs 8, 9 and 10 of the Statement of Defence made fair hearing an issue.

Question No, 5:

If the New NISER had the power to determine the appointment, was he wrongfully dismissed or terminated What is the relevance, if any, of the reasons for the dismissal or termination

Answer: The Appellant was no doubt a public servant in the Public Service of the Federation with a ‘permanent and pensionable appointment. He was not a domestic servant. He held his post aut culpam. If he is being removed for misconduct as paragraphs 8, 9 and 10 of the Statement of Defence suggest, his appointment cannot be validly determined without affording him the most elementary right of fair hearing. To that extent, he was wrongfully dismissed or terminated. An employer is not bound to give reasons for terminating the appointment of his employee but where he gives a reason the onus lies on him to establish that cause or reason at the trial and to the satisfaction of the Court. In Malloch’s case supra the House of Lords held that the statutory requirement of 3 weeks notice of motion of dismissal would import the right to be heard. In this case, the two Courts below did not, with the greatest respect, sufficiently advert to the entirely different element – that of fair hearing – introduced by the Respondent itself. It is true as observed by the Court below that in Olaniyan’s case there was a finding that the Appellants were being removed or terminated for misconduct. But it is also true that in this case the Respondent pleaded misconduct as the reason or the cause of its removal or termination of the Appellant’s appointment. And the Respondent is bound by its own pleadings. The decision in both cases should thus be six of one and half a dozen of the other – same.

The Court below was right in all its answers to the questions for determination except those dealing with fair hearing of the Appellant by the New Council. And it is only on that issue that this appeal will reluctantly be allowed.

The next hurdle is – What consequential order does the justice of this case deserve and dictate Here is a Professor who has wilfully disobeyed every constituted authority with regard to the Princetown Project; who has written highly insulting letters to everyone in authority; who has been a thorn in the flesh of all the members of the Old Institute; who had been a spanner in the wheels of the progress of the Institute, refusing to serve in any Committee of the Institute; who had been investigated by many Committees of the Old Institute and found guilty of “glaring disobedience to constituted authority in the Institute”; whose continued presence in the Institute was regarded as likely to have adverse effect on the morale of the staff of the institute and on the “proper running and management of the NISER” and on whom there was this recommendation:-

“In the light of the points enumerated above it is the Committee’s opinion that the continued presence of Professor Olatunbosun in NISER will not allow for cordial relations and smooth administration of the Institute. We therefore recommend that Professor Olatunbosun be removed from the NISER Organisation”

There was no doubt that the Old Institute afforded Professor Olatunbosun every opportunity of being heard with regard to the Princetown Project. He stated his case fully but still refused to obey either the Director’s directive or the Vice Chancellor’s warning of the danger of travelling out of the country to Princetown without the approval of the Director. The justice of the case amply justifies the dismissal of the Appellant. In Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. 17 at p.19 this Court held inter alia that:-

“1. Under Common Law and Statute Law disobedience of lawful order from any servant high or low, big or small is viewed with seriousness. Such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst forms of misconduct in any establishment.

  1. To warrant summary dismissal it is enough that the conduct of the servant is of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant.
  2. Once the trial Court found the appellant guilty of conduct amounting to disobedience and insubordination, the compulsory retiring age of the servant whether it be 53 or 60 under the “Terms and Conditions of Service” will not affect the legal effect of disobedience to lawful orders in a contract of employment. The Respondent was at liberty to dismiss the appellant summarily for the flagrant act of disobedience and insubordination.
  3. A master who could lawfully dismiss a servant for disobedience and insubordination cannot be guilty of a wrongful act if he retired the same servant (on the same facts of disobedience and insubordination on humanitarian ground). Retiring the present appellant with full benefit was a humanitarian act which the appellant neither deserved nor even appreciated”.

I will only add that the case now on appeal is on all fours with Sule’s case supra. The present Appellant won on the thin and slender thread that hearing by the Old Institute cannot amount to hearing by the New NISER/Council, the present Respondent. Otherwise his case was totally lacking in merit.

Now to the Claims of the Appellant as itemised in paragraph 20 of his Statement of Claim. The Court below was right in upholding the trial Court’s dismissal of all the Declarations sought by the Appellant as well as his claim for an Injunction. In the alternative the Appellant claimed one million naira as damages for the premature determination of his appointment. The law is that a servant who has been unlawfully dismissed cannot claim his wages for services he never rendered: Denmark Production Ltd. v. Boscobel Productions Ltd. (1968) 1 All E.R. 513 at p.524. The Appellant cannot just sit down with arms folded hoping for his “salary from 1/4/78 till the age of 60 years” to fall like manna from heaven:-

Goodman v. Peacock (1850) 15 Q.B. 576; French v. Brooks (1830) 6 Bing 354; Fewingo v. Disdal (1847) 1 Exch. 295. In Denmark’s case supra Harman, L.J. stated the principle that:-

“An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for account of profits which he would have earned to the end of the contractual period: he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can”.

In this case, the Appellant is a highly qualified professional man. There is no evidence that he had folded his hands since his dismissal on 1/4/78. Rather in oral submission before us he formed a Company. He claims salary from 1/4/ 78 up to the age of 60 with no guarantee that he will live up to 60 years of age. The appellant has a legal duty to mitigate his damages by engaging in some gainful employment. In a suitable case, the proceeds of such employment should be deducted from the amount of damages arrived at:- Lavarack v. Woods of Cochester Ltd. (1966) 3 All E.R. 683 at p.694.

This Court in The Nigerian Marketing Board v. A. O. Adewunmi (1972) 11 S.C. 111 at p.117 did address itself to the question of the measure of damages in cases of wrongful dismissal and held at p.117:-

‘”In a claim for wrongful dismissal the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (see Beckham v. Drake (1849) 2 H.L.C. 579 at pp.607-608). Where, however, the defendant on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice bearing in mind that it is the duty of the plaintiff to minimise the damage which he sustains by wrongful dismissal”

(italics mine)

In the present case now on appeal, Ex. 3K, the contract document, prescribed 6 months notice or 6 months salary in lieu thereof. This the Respondent tendered in Ex. 4. By thus tendering six months salary, according to Ex. 3K “the appointment of the Professor shall terminate immediately”. The contract was thus terminated according to its terms may be, technically but not substantially, wrongly on the issue of fair hearing only – an issue introduced by the Respondent itself.

The Court merely considered the issue of fair hearing of the Appellant by the Respondent, the New Council, and in the interest of, and also the dictates of natural justice, decided that solitary issue in favour of the Appellant. Now in the interest of the self same justice, the Appellant should not be allowed to reap any further financial gain from the Respondent in view of the findings of fact of disobedience by the two Courts below.

I will therefore award him 6 months’ salary which he was offered earlier on by the Respondent. The Appellant is however entitled to his “other entitlements” as stated in the last paragraph of Ex. 4 subject of course to just and due deductions.

Each party will bear its own costs.


SC.136/1986

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