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Solomon S. Haruna V. University of Agriculture, Makurdi & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

At the Federal High Court, Jos Division, the appellant herein, as the plaintiff had challenged the termination of his employment with the 1st respondent, the 1st defendant in the court below. The appellant was non-suited by the learned trial Judge, Gumel, J. who delivered his judgment dated 5th May, 2001 on 17th July, 2001 after learned counsel for the parties delivered their final address on 23rd January, 2001.

Dissatisfied, the plaintiff appealed to this court on 10 grounds. The claim of the appellant in the court below are as follows:-

(a) A declaration that the recommendation of the Senate Investigation Panel to the effect that plaintiff be “reprimanded” removed as Dean of Students and deployed elsewhere” acted upon by the 1st and 2nd defendants and culminating in plaintiff’s determination of employment is ultra-vires the powers of the said investigation panel having regard to its terms of reference on the students rampage of June 11, 1994.

(b) A declaration that the purported determination of plaintiff’s employment in pursuance of his alleged appearance before a non-existing or improvised administrative committee on Senior Staff Disciplinary Cases in relation to students rampage of 11th June, 1994 is invalid, null and void and based on a faulty foundation.

(c) A declaration that the purported disciplinary measures applied against the plaintiff in this case culminating in the termination of his employment vide a letter dated November 18, 1988 are a transgression of section 16 of the Federal Universities of Agriculture Decree No. 48, 1992, hence invalid, null and void.

(d) A declaration that in the absence of council to the 1st defendant, the 1st and 2nd defendants and the Honourable Minister of Agriculture and Natural Resources for that matter lack the competence and capacity to determine plaintiff’s employment with the 1st defendant in the way and manner it was done in this case.

(e) A declaration that the termination of plaintiff’s employment vide a letter dated November 18, 1998 and in pursuance of Senate Investigation Panel Report as well as purported Administrative Committee of Senior Staff Disciplinary Cases or by whatever name called is tainted with bias, manifestly in bad faith and a fundamental breach of right to fair hearing especially as the composition of the various committees/panel in this case was not only lopsided but were executing a predetermined script of discrimination against the plaintiff hence their decision are not free and fair and/or a tantamount to fair hearing.

(f) A declaration that the determination of plaintiff’s employment for various offences allegedly committed by the plaintiff as published vide the 1st defendant’s Weekly News Bulletin of 23rd – 27th January, 1998, without a prior arrangement, prosecution and conviction for those alleged offences is indefensible, incurably bad and of no legal consequences.

(g) A declaration that the determination of plaintiff’s employment at about the age of 51 and before his age of retirement from service is in bad faith, malicious in the extreme and a needless case of vendetta especially as the plaintiff was a major victim of the said students rampage.

(h) A mandatory order compelling the defendants to reinstate the plaintiff to his employment with full benefits with effect from November, 1998 with much ado.

In the alternative

N2,428,611.63 representing salary and emolument of the plaintiff with effect from 1st November, 1998, up to the year 2008 his year of retirement from service when plaintiff would have clocked the retirement age of 60 years.

The defendant/respondent denied the claim.

The genesis of this matter can be summarized as follows:

The Federal University of Agriculture, Makurdi, the 1st respondent herein had by a letter dated 18th November, 1998 conveyed to the appellant, its Dean of Students, appointed by a letter of 9th April, 1993, the termination of his appointment. This was said by the respondents’ witness in court to be upon the approval of the Minister of Agriculture and Natural Resources, acting on behalf of the Council of the University. He was to be paid three (3) months salary in lieu of notice. At the time, the University Council was in place. For the life of the existing Council had expired on 31st December, 1995.

Before this, on 10th June, 1994, the students of the University had gone on rampage, burning and causing very serious destruction of the property of the University and personal property of University staff including the Vice Chancellor, the Deputy Vice Chancellor and the Dean of Students Affairs who is the plaintiff/appellant. As a result of this, an investigation panel was set up on 13th June, 1994 by University Senate to investigate the student’s rampage, including the destruction and loss suffered by the institution and personnel. From the account, some compensation for loss of personal property was recommended and paid by the University.

That Committee had also recommended that the appellant be-

“reprimanded, removed as Dean of Students and deployed elsewhere. ”

The appellant, in his claim in the court below had averred that the Committee had acted ultra-vires, having exceeded its terms of reference set out in paragraph 14 of his statement of claim.

Let me set out some relevant paragraphs of the plaintiff/appellant’s statement of claim:

11. On or about the 10th day of June, 1994, the plaintiff was indisposed when the students of the 1st defendant were involved in their manifesto night as a prelude to students union election to take place the following day, the 11th day of June, 1994. The students for inexplicable reasons went wild, lured the plaintiff into the manifesto venue and threatened to kill him. Fortunately, the plaintiff managed to escape with the aid of some good Samaritan student(s) in the midst of pandemonium that issued following the throwing of tear gas by the security agents threat.
12. Worse still in their sustained act of lawlessness, threat to life and destructive instinct, the students of the 1st defendant embarked in an orgy of uncontrollable violence culminating in an unprecedented act of arson and destruction of property whereupon plaintiff’s official residence, FUT 25 Perm. Site Quarters, Makurdi was set ablaze while his wife, children and family dependants were trapped inside. Consequently, the plaintiff lost everything he and his family had including the following:

(a) Personal Peugeot 504 saloon car with registration No. KD 3109 AE.

(b) Entire portfolio of lifetime personal effects of the plaintiff, his wife, six children, convalescing father-in-law.

His wife, six children and father-in-law miraculously escaped from the inferno. The plaintiff pleads and shall found on the following:

(i) Copy of the then Vice-Chancellor’s address to the Honourable Minister of Agriculture and Natural Resources on the occasion of his visit to 1st defendant premises on 21st June, 1994 to assess the damage done during the student rampage of June 11, 1994.

(ii) Copy of sworn affidavit of the plaintiff before the High Court of Justice, Benue State, dated the 4th day of June, 1996.

13. Besides the official residence of the plaintiff which was set ablaze, the self-same students descended on the Vice Chancellor’s lodge as well as Deputy Vice-Chancellor’s lodge and set both ablaze whereupon many things were burnt to ashes.
14. Subsequently as its emergency meeting on 13th June, 1994, the Senate of the 1st defendant set-up an investigation panel on the student rampage of 11th June, 1994, with the following terms of reference:

(a) to determine immediate and remote causes of the student rampage on Saturday, 11th June, 1994 including the relative roles of internal and external factors, if any.

(b) to identify the ringleaders and perpetrators of the wanton destruction of public and private property and the mortal danger posed to University functionaries and their families.

(c) to assess and quantify the extent of both public and private property lost with due attention to current market replacement values of the assets destroyed.

(d) recommend appropriate disciplinary measures for all ringleaders and perpetrators of the wanton destruction of property and threat to life including appropriate fines and levies to be borne by the student community, and

(e) make any recommendations deemed appropriate to avert future occurrences of this nature.

15. Subsequent to its inauguration, the said investigation panel invited the plaintiff to appear before it to testify as a witness on different occasions vide series of invitation letters. All the invitation letters are hereby pleaded.
16. Curiously, and in amazing disregard to its explicit terms of reference, the said Senate Investigation Panel in its report submitted to the 1st and 2nd defendants and/or Council of the 1st defendant proceeded to indict the plaintiff and equally recommended that the plaintiff be “reprimanded, removed as Dean of Students and redeployed elsewhere.” The plaintiff pleads and shall found on the various volumes of reports submitted to the Senate of the 1st defendant and/or its council particular! y the relevant pages thereof hence give notice to the defendants to produce same at the trial.
17. Indeed, in pursuance of the Senate Investigation Panel Report, the Council of the 1st defendant set up Senior Staff Disciplinary Committee to act on the recommendations of the said panel and/or investigate the matter further. The plaintiff pleads and shall found on the minutes and/or instrument setting up the said Disciplinary Committee hence gives notice to the defendants to produce same at the trial.
18. Consequent upon the setting up of the said Senior Staff Disciplinary Committee, the plaintiff was invited by the said Committee vide several invitation letters to appeal before it and defend himself of alleged indictments by the Senate Investigation Panel on students rampage of June 11, 1994. The said invitation letters are hereby pleaded.
19. The plaintiff avers that excepting on one occasion when the proceedings actually took place all other subsequent meetings of the Senior Staff Disciplinary Committee in which the plaintiff was invited did not take place.
20. Between 31st December, 1995, when the lifespan of the Council expired together with the Senior Staff Disciplinary Committee nothing was done officially, on this matter save that the 2nd defendant began to frustrate the plaintiff by giving out his office to somebody else, relocated him to unfurnished, none descript office and without allowing him to discharge his official functions.
21. By a letter dated 28th August, 1998, the plaintiff was invited by one F. N. Akpu to appear before the Senior Staff Disciplinary Committee on 3rd September, 1998 at 10:00 in the Council Chamber, North core to defend himself on what was described in the following terms:

“alleged involvement in the students rampage of 11th June, 1994.”

The plaintiff pleads and shall found on the said invitation letter at the trial.

28. The plaintiff avers that contrary to the unpretentious conclusion reached by the said Senior Staff Disciplinary Committee vide the invitation letter aforesaid, he was not involved in the students rampage of 11th June, 1994. Rather, he was a major victim of the dastardly act of arson and unwarranted destruction of his property and/or personal effects whereupon his life as well as those of his wife, children and father-in-law were put on the line.
29. Alarmed by this dangerous trend of ‘conviction’ before trial, the plaintiff by his brief dated 30th August, 1998, alerted the Chairman of the said Committee and pleaded for justice by making succinct submissions on antecedent development over this matter. The said brief is hereby pleaded and the defendants are given notice to produce its original at the trial.
30. By another letter dated 31st August, 1998, the said committee through the self-same F.N. Akpu, its secretary in an attempt to cover up its hidden agenda decided to retract the first letters of invitation by restructuring the tenure of the invitation to the plaintiff to defend himself on what was now described as;

“alleged indictments by Senate Investigation Panel on students rampage of June 11, 1994.”

“This letter of investigation supercedes our letter of 28th August, 1998.”

The plaintiff pleads and shall found on the said invitation letter at the trial.

32. When the plaintiff eventually appeared before the Senior Staff Disciplinary Committee on 4th and 5th September, 1995, the Committee in question confronted the plaintiff with hostile and bellicose disposition to the extent that one of the members, Professor M. C. Njike intemperately abused the plaintiff at his pleasure.
33. Predictably, the Senior Second Staff Disciplinary Committee at the end of the day passed a guilty verdict on the plaintiff having sustained all the allegations against him bordering on the offence of negligence, serious act of gross misconduct, etc, which attract dismissal but recommended that plaintiff’s appointment be terminated. The plaintiff pleads and shall found on the report including the findings and recommendations of the said Committee, hence the defendants are given notice to produce same at the trial.
34. By a letter dated November 18, 1989, the 1st defendant terminated the appointment of the plaintiff on the pre that the latter had appeared before a non-existent body, namely, Administrative Committee on Senior Staff Disciplinary cases in connection with the report of the Senate Investigation Panel on the students rampage of 11th June, 1994. The said letter is hereby pleaded.
35. The plaintiff shall contend at the trial that in as much as the purported recommendation of the said Senate Investigation Panel that the plaintiff be “reprimanded, removed as Dean of Students and deployed elsewhere” was ultra-vires its powers against the terms of reference setting it up the recommendation aforesaid and the purported termination of plaintiff’s employment resulting there from are null and void and of no effect.
36. The plaintiff shall also contend at the trial that in as much as there is no body by the name Administration Committee on Senior Staff Disciplinary Cases, the purported termination of plaintiff’s employment predicated on the work of this non-existing body is invalid and without legal foundation.
37. That plaintiff avers that as a senior staff of the 1st defendant, it is only the council of the 1st defendant that had the forum Competence to take a final decision on the disciplinary matters affecting him and since the council has not been constituted since January 1, 1996, till date, the purported termination of his employment is ultra vires the powers of the 1st and 2nd defendants and/or the Honourable Minister of Agriculture and Natural Resources.
38. The plaintiff avers further that the purported disciplinary measures applied against him culminating in the termination of his employment is a transgression of section 16 of the Federal Universities of Agriculture Decree No.48 of 1992 and as such can not be sustained.
39. The plaintiff avers that in brazen disregard to enabling Decree and obvious transgression of the rules of natural justice, the Senate Investigation Panel and the reports emanating from its work are all flawed on the following grounds:

(a) The composition of the Senate Investigation Panel was inchoate and incomplete as it carefully excluded Chairman of plaintiff’s union, namely (SSANU) hence void.

(b) Plaintiff was only invited to appear before the said panel as a witness/principal victim and not a suspect of the students rampage of June 11, 1994.

(c) There were no formal charges leveled against the plaintiff by the said panel to which the plaintiff was asked to respond to, or defend.

(d) The plaintiff was not given any opportunity to defend himself against any allegations of negligence, gross misconduct or any other for the matter by or before the Senate Investigation Panel.

(e) The so-called indictments of the plaintiff by the Senate Investigation Panel was incongruous with its terms of reference and marked departure from elementary principles of fair hearing.

(f) The plaintiff was condemned unheard by the Senate Investigation Panel having regard to his indictments by the panel in its report.

The defendants/respondents denied the claim. Here are some relevant paragraphs of their joint statement of defence:

5. The defendants deny paragraph 11 of the claim, and will at the trial put plaintiff to strict proof thereof.

In further reply to paragraph 11 of the claim the defendant aver that both the Investigation Panel on the Students Rampage and the Administrative Committee on Senior Staff Disciplinary afforded the plaintiff enough opportunity to explain himself, including his indisposition on 10th June, 1994, but he did not, nor did plaintiff indicate that he was under threat of being killed. Defendants will rely on the panel’s finding and that the release of tear gas precipitated the riot.

6. That defendants admit paragraph 12 of the claim and aver that comprehensive documentation of what was lost in the riot was made by the Senate Investigation Panel of 11th January, 1994 and further that the plaintiff was more than adequately compensated financially.
7. The defendants admit paragraph 26 of the claim only to the extent that the tenure of office of the Council terminated at the end of December, 1995 and so with the Committee it had set up. The defendants deny the rest of the averment thereof and will at the trial put plaintiff to strict proof thereof.
8. In further reply to paragraph 26 of the claim the defendants aver that since the plaintiff abdicated his position as Dean of Students on 13th February, 1995, during the tenure of office of the Council whose tenure came to an end in December 1995, the plaintiff had no office. Defendants will rely on copy of letter ref. VC/UAM/ACA/18 of 13/2/95, addressed to Dr. S. O. Awonorin, appointing the said Dr. S. O. Awonorin Ag. Dean.
9. The defendants admit paragraphs 27, 28 and 31 of the claim that the letters were sent but aver that it was the secretary that sent them before the committee was even inaugurated.
10. The defendants deny paragraphs 29 and 30 of the claim and will at the trial put plaintiff to strict proof thereof. The defendants aver that the plaintiff was given full opportunity to defend himself.
11. The defendants deny paragraphs 32, 33, 34, 35 and 36 of the claim and will at the trial require strict proof of the averments thereof. In further reply to these paragraphs the defendants aver that the Committee restricted itself to the terms of reference.
12. Further to paragraph 35 of the claim the defendants aver that the plaintiff’s letter to the Honourable Minister led to the meeting of the Honourable Minister with the staff of the 1st defendant on 8th May, 1998; Consequently culminating into the Honourable Minister’s Committee, which dealth with the plaintiff’s case.
13. The defendants will contend that the plaintiff knowing full well that there was no council of the plaintiff in place petitioned the Honourable Minister who in turn set up the Senior Staff Disciplinary Committee. The plaintiff is estopped from now complaining of non-existence of Governing Council after expressing gratitude to the Committee for giving him an opportunity at long last to clear himself. Defendants will rely on the plaintiff’s letter of 14th September, 1998, minutes of the Committee and minutes of the meeting with the Honourable Minister of 8th May, 1998.
14. The defendants deny paragraphs 39, 40, 41, 42, 43, 44 and 45 and will at the trial require strict proof thereof.
15. In further reply to paragraph 44 of the claim the defendants will require strict proof that a union member of the plaintiff must necessarily serve on a Senate Investigation Panel.

The pleadings of the parties so far set out to tell the story of the case of each party. Their evidence, adduced by the single witness who testified on each side virtually ran along those lines, and this is why I have set them out in such details notwithstanding the length.

At the close of the case of the respondents, parties filed written submissions as ordered by the court which they delivered as their final address on the 23rd January, 2001. The learned Counsel for the defendant had filed an unsigned and undated written submission, which he however adopted, in open court when parties made their final submission on the said 23rd January, 2001. Quite significantly, judgment was however not delivered till nearly six months after, on 17th July, 2001, after the learned trial Judge had adjourned the judgment three times.

Parties to this appeal had filed and exchanged briefs of argument in accordance with the rules of this court. The appellant also filed and served a reply brief.

The appellant in his brief of argument distilled the following 5 issues for determination from the 10 grounds of appeal, which he filed:-

1. Whether having regard to the state of the pleadings and upon a careful evaluation of evidence in this case vis-a-vis the provisions of sections 15 and 16 of the Federal Universities of Agriculture Decree No. 48 of 1992, the learned trial Judge was right in saying that the appellant was accorded fair hearing and thereby non-suited him.
2. Whether the learned trial Judge was right in deeming as signed and valid an unsigned and undated written address of learned counsel to the respondents.
3. Whether the learned trial Judge accorded fair hearing to the appellant by suo motu introducing the doctrine (issue) of election without calling for address and/or by not effectively utilizing the final address of the appellant.
4. Whether the appellant lied to the court so as to warrant the highhanded strictures on him by the learned trial Judge thereby leading to bias conclusions against the appellant.
5. Whether the judgment in this case delivered well over five months after conclusion of final addresses and evidence has not occasioned a miscarriage of justice and thereby a nullity having regard to section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.

The respondent is deemed to have adopted these same 5 issues distilled by the appellant, which he reproduced in his brief of argument verbatim.

Issue No.1

In arguing the appeal, learned Counsel for the appellant P.A. Akubo, Esq. made the following submissions: – that the issue relates to the matter of evaluation of evidence and fair hearing, the state of the pleadings, the evidence adduced and the application of sections 15 and 16 of the Federal Universities of Agriculture Decree No. 48 of 1992. It relates to grounds 1, 3, 5 and 8 of the grounds of appeal. He referred to the conclusion of the court below that it was fatal for the appellant to have failed to plead all or most relevant terms and conditions of his employment as provided in exhibits SS1 and SS2.

He then argued that contrary to the conclusion of the trial court in question, the appellant strictly complied with the rules relating to pleadings, that he comprehensively pleaded all necessary facts in his statement of claim, such as his letter of employment and that appointing him as the substantive Dean of Students both of which contain useful terms and conditions governing his employment, namely Federal Universities of Agriculture Decree No. 48 of 1992, which the respondents failed to comply with, pleaded in paragraphs 43 and 44 of the statement of claim.

Counsel pointed out that the appellant tendered exhibits SS1 and SS3, being the first offer of appointment dated 8th November, 1983 and his letter of appointment as Dean of Students dated 19th April, 1993 and that significantly, paragraph 5, page 2 of exhibit SS3 expressly indicates that the appointment of the appellant will be governed by the provisions of the University of Agriculture, Makurdi Decree, a statute which the learned trial Judge was entitled to take judicial notice of. Thus, it was not necessary to tender the legislation in evidence. A copy of this he said was made available to the court from the bar for use in determining the case after the conclusion of hearing and final address.

Exhibit SS2 is the confirmation of appellant’s appointment dated 27th April, 1987, which the learned trial Judge referred to and it said nothing about the terms and conditions governing the appellant’s appointment. Exhibit SS1, counsel said, relates to a defunct University, Federal University of Technology, Makurdi. The other instructive document is exhibit SS24, which is the letter of re-absorption to the University of Agriculture, Makurdi after the de-merger from University of Jos dated 29th April, 1988. This did not say any thing about the terms and conditions governing appellant’s employment. Therefore, the documents conveying the terms and conditions of the appellant’s employment, Decree No. 48 of 1992 is exhibit SS3. Exhibit SS3 as well as Decree No. 48 of 1992 provides a complete answer on this point so submitted by the counsel.

On the question of evidence, the appellant submitted that the final order of the court non-suiting him confirms that the trial court did not properly evaluate the evidence in the case. The trial court, it was submitted indiscriminately and without just cause disbelieved the appellant on the ground that he had lied to the court, but, a careful evaluation of the evidence reveals that he discharged the onus of proof upon him so as to entitle him to the reliefs sought. He said the averments in the statement of claim were largely admitted by the respondents. He submitted that what is admitted needs no proof, citing section 75 of the Evidence Act.

He claimed that apart from the admissions on the pleadings, the appellant adduced unrebutted evidence to show that he was not given fair hearing before the Senior Staff Disciplinary Committee, that his evidence was that he, the victim was turned into a villain, that he testified to the effect that Professor F. O. I. Anugwa, who was the Chairman of the Senate Investigation Panel which indicted him was also made a member of the Committee in question, had a pathological hatred for the appellant hence freely harassed and abused him.

After setting out the evidence of the appellant himself, on this issue, the appellant’s counsel added that in every respect, the proceeding of the Committee was studded with incredible, predetermined bias.

Learned Counsel for the appellant submitted that the respondents did not controvert what he called this overwhelming piece of evidence and so his testimony on this score stands unrebutted and uncontroverted. Hence, the trial court was obliged to utilize it but did not. He referred to: Musa v. Yerima (1997) 7 NWLR (Pt.511) 27, (1997) 7 S.C.N.J. 109 at 123-124; Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355, (1997) 7 SCNJ 411 at 434; Oguma Associated Co. v. IBWA (1988) 1 NWLR (Pt.73) 658; Egbunike v. A.C.B. (1995) 2 NWLR (Pt.375) 34, (1995) 2 S.C.N.J. 58 at 75 and 78.

Learned Counsel for the appellant further submitted that the evidence of the defence showed non-compliance with sections 15 and 16 of Decree 48 of 1992 on their part, there being no council of the University in place between January, 1996 and November, 1998 when the appellant’s appointment was terminated.

The composition and proceedings of the Senate Investigation Panel and the Senior Staff Disciplinary Committee also came under attack when the appellant submitted that the Senate Panel did not include the President or Chairman of the appellant’s union as stipulated by section 16(2) of the enabling statute.

There was no council in place to validly consider and take a decision on the report of the Senior Staff Disciplinary Committee as envisaged under section 15(4) of the Decree and the council is the governing body of the University by virtue of section 6(1) of the Decree does not include the Minister for Agriculture and Natural Resources. He referred to the definition of the word “council” in section 25(i) of the Decree and repeated that there was no council in place, let alone competently complying with the provisions of section 15(1)(a), (b) & (c) of the Decree.

Further submission on section 15 of Decree No. 48 of the 1992 is that it confers a “special status” on the appellant over and above the normal contractual relationship of master and servant. The employment of the appellant enjoys statutory flavour, and the only way to terminate such a contract of service with “statutory flavour” is to adhere strictly to the procedure laid down in the statute failing which it renders the termination invalid. The cases relied on are Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 320 and 346; Shitta-Bey v. Federation Public Service Commission (1981) 1 SC 40 at 56; Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt.9) 599; Olatunbosun v. N.I.S.E.R Council (1988) 3 NWLR (Pt. 80) 25 at 41; P.H.M.B. v. Ejitagha (2000) 11 NWLR (Pt. 677) 154 at 160. The conclusion is that the failure of the defendants to comply with the provisions of sections 15 and 16 of the said Decree is fatal.

It was again the submission for the appellant that it is settled law that if the trial court fails to properly evaluate evidence as in this case, the Court of Appeal will intervene to remedy the situation. See the cases of U.I.C Ltd. v. T. A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt. 565) 340 at 364; Kwajaffa v. B.O.N. Ltd. (1999) 1 NWLR (Pt.587) 423 at 434 – 435; Musa v. Yerima (supra) at 124.

Furthermore, that the failure of the Senior Staff Disciplinary Committee to accord the appellant fair hearing renders the work of the Committee null and void and of no effect. He relied on Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554 at 570; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 31. The doctrine of fair hearing being so sacrosanct and fundamental, it cannot be compromised on any account. He referred in support to Okonkwo v. Okonkwo (supra) at p.570 and Nwokoro v. Onuma (supra) at 31, and also section 33( 1) of the Constitution of the Federal Republic of Nigeria, 1979; Article 7 of the African Charter on Human And Peoples Rights (Ratification And Enforcement) Act, Cap. 10, Laws of the Federation, 1990 as well as Article 10 of the United Nations Charter, 1948.

Mr. Akubo, learned Counsel for the appellant concluded by attacking the order non-suiting the appellant as inappropriate and indefensible, having regard to the entire circumstances of this case. The learned trial Judge having come to the conclusion that the respondents had failed to show evidence that the Minister of Agriculture was vested with authority to oversee the affairs of the 1st respondent in the absence of council, faulted the failure of the respondents to show evidence of written approval of the Minister for the termination of appellant’s appointment, thereby concluded that the Registrar had no authority to issue a letter of termination of appointment when he issued exhibit SS14. Counsel then submitted that these conclusions were enough to invalidate the termination of appellant’s appointment and sustain his claim and order his reinstatement as a statutory employee whose appointment is governed by Decree No. 48 of 1992. Adeniyi v. Gov. Council, Yabatech (1993) 6 NWLR (Pt. 300) 426 at 456; UMTHMB v. Dawa (2001) 16 NWLR (Pt. 739) 424 at 451 – 452 relied on. He concluded that it was inappropriate to non-suit the appellant with the right to begin the case afresh is against the law that there must be an end to litigation, citing Asaboro v. Aruwaji & Anor. (1974) 1 All NLR (Pt.1) 140; Nwanezie v. ldris (1993) 3 NWLR (Pt.279) 1 at 15.

In his brief of argument Mr. Kondoun learned Counsel for the respondents submitted that on the pleadings, the evidence and the documentary evidence before the court, the court properly evaluated the evidence. He justified the court’s evaluation of the evidence and its decision that the appellant was accorded fair hearing before his appointment was determined by the respondents. He said the appellant has woefully failed to establish his case before the trial court. For a party in an employment contract to succeed, he is obliged to plead and tender the relevant contract terms to enable the court consider same judiciously. The appellant failed to do so. The trial court observed this and was left with nothing upon which to weigh the appellant’s case. He cited Katto v. CBN (1999) 6 NWLR (Pt.607) 390, and conceded that Decree 48 of 1992 is one of the documents containing the terms of the employment. The same Decree he said, made provision for regulations governing the employment of the appellant, which the appellant knows of but never placed same before the trial court. The respondents, he said were not aware that appellant made available the Decree to the court of trial for consideration. It was pleaded but not tendered. He said exhibits 551, 552, 553 and 554 did not contain comprehensive terms of employment, were very scanty, and did not deal with termination of the appellant in this suit. He submitted that he who wants the court to find in his favour should place before the court all material necessary to enable it make findings and conclusions. He concluded that default thereof in doing so is fatal to him. Again Katto v. CBN (supra) referred to. As to the issue of evaluation of evidence, it is submitted that the trial court properly evaluated the evidence before arriving at its final decision non-suiting the appellant and the burden of proof being squarely on the appellant, he failed to discharge same – sections 135 and 136 of Evidence Act, 1990 relied on.

Learned Counsel Mr. Kondoun further stated that, the trial court found as a fact that the appellant’s evidence in material particulars were not probative and disbelieved him. For, he blatantly denied being given a fair hearing – in fact he denied appearing before the Administrative Panel on Senior Staff Disciplinary Cases, but the records of the court and the report of the panel showed that he appeared. The trial court found as such, disbelieving him. Counsel said the appellant never stated why Professor Mr. C. Njike should hate him, and that it is on record that the final panel considered representations presented to it and also heard the appellant and there was no absence of fair hearing.

He insisted that Professors Njike and Anugwa were not witnesses in the panels, for the reports exh. JNK 6 shows that they were only members and Chairmen of the panels. He stated that the appellant himself admitted that the later panel used materials already in existence. The panel did not take fresh evidence. It is not the case of the appellant that his representation was not used or that it was altered.

The report was before the court, which examined it but no bias was evident. In counsel’s view, the position taken by the appellant was an after-thought.

Counsel further argued, that the appellant having collected the compensation assessed by the panel without complaint, his complaint is coming later before the trial court and he cannot approbate and reprobate. Counsel concluded that the trial court was right in holding that the law could not allow him to do so.

Further, he referred to sections 15 and 16 of the Federal University of Agriculture Decree No. 48 of 1992 and said the respondent complied with it, that in the absence of the council the Minister acted. The appellant, he said petitioned him among others to get redress resulting in the setting up of the panel which findings and recommendations was approved hence his termination. He cannot be heard complaining of lack of hearing and competence.

It was admitted by counsel that this court can intervene where the trial court fails to evaluate evidence before it, but added that the trial court herein evaluated the evidence and found appellant wanting. It should have dismissed the suit but rather non-suited him.

Learned Counsel for the respondent stated that the findings of the trial court that the Minister was not shown as overseer of the 1st respondent and that the Registrar had no power to issue termination etc, were not fatal to the respondents, the law being settled that the burden of proof as in this case rests on the appellant. He should succeed on the strength of his case and not the weakness of the defence. He then concluded that having failed to discharge this burden by not placing the terms of his employment, and having given due hearing it was correct when the trial court non-suited him. He referred to sections 135 and 136 of the Evidence Act, 1990, Olatunbosun v. Nigerian Institute of Social Economic Research Council (1988) 3 NWLR (Pt.80) 25, (1988) 6 SCNJ 38.

In his appellant’s reply, Mr. Akubo faulted the respondents’ submission that the appellant failed to tender Decree 48 and the regulations there under governing his employment claimed to be made and passed by the respondents, and reliance on Katto v. CBN (supra). He submitted that exhibits SS1, SS2, SS3 and SS4 contained relevant conditions of his employment and there was no evidence of any regulations made pursuant to Decree 48 of 1992. Above all it is the law that the court shall take judicial notice of all laws and enactment, citing and quoting sections 73 and 74(1) of the Evidence Act. It was unnecessary to tender the Decree and having tendered the memorandum governing his employment, the appellant had discharged the onus on him citing Olaniyan v. University of Lagos State (1985) 2 NWLR (Pt.9) 599, (1985) All NLR 363 at 378 – 379. The respondents who were obliged to comply with sections 15 and 16 of the Decree failed to do so.

The name of the panel which arose in the argument of parties drew further comment from Mr. Akubo when he stated that exhibits SS6, SS8, SS9, SS10 and SS11 unanimously exonerate the appellant as a witness of truth, not a liar in that he was summoned to appear before the Senior Staff Disciplinary Committee and not any improved body called Administrative Panel on Senior Staff Disciplinary Cases as erroneously contended by the respondents.

Before addressing this issue let me state that this is indeed the decisive issue in this matter it raises the question of the vires of the Minister of Agriculture and of the validity of the termination of the employment of the appellant. It questions also the decision of the court below that the appellant had failed to plead all or the most relevant terms and conditions of his employment which he held to be fatal to the case of the appellant.

The terms and conditions, which the court below said were not pleaded, are those which he stated that the appellant’s employment was subject to as provided by exhibit SS1 and exhibit SS2. These two documents are the appellant’s first letter of initial appointment dated 8th November, 1983 and his confirmation of appointment dated 27th April, 1987, taking effect on 14th November, 1985.

He also referred to exhibit SS3 the appellant’s letter of appointment as Dean of Students dated 19th April, 1993. The learned trial Judge set out paragraph 2 of exhibit SS1, which he said, was the same as in exhibit SS3. He referred to sections 15 and 16 of Decree 48 of 1992 noting that it provides for steps to be taken before disciplinary action can be taken against a senior staff but he surmised that, it was not clear if those provisions were exclusive and did not need any amplification by the rules governing the conditions of service of senior staff.

He added:-

“In cases like this, it is very usual for the conditions and rules governing the contract of service of a plaintiff to be produced before the court. In fact that is why exhibit SS1 in paragraph 2 incorporates chapters 6 – 11 of the conditions of services. They are not pleaded at all. No explanations were given why they were not pleaded or produced before the court”.

Let me set out paragraph 2 of exhibit SS3 issued in 1993 appointing the appellant Dean. It clearly supercedes exhibit SS2.

That paragraph 2 states:

“The appointment is subject to the provisions of the University Law Statutes and Ordinances made there under and to regulations governing the conditions of appointment of senior staff to be made by the University Council from time to time.”

Now, to the important question arising in this matter, my answer is clearly that the court below ought not to have non-suited the appellant having regard to the pleadings and the evidence before the court, and the provisions of the Federal Universities of Agriculture Decree No. 48 of 1992. The question of fair hearing which the court below determined is critically interwoven with the provisions of the Decree in terms of what conditions apply and who has the vires to entertain and determine the question of discipline and termination of employment of a senior staff of the University.

I think the appellant pleaded relevant facts required to determine the foregoing and the claim before the court. His letter of appointment and confirmation of appointment exhibits SS1, and SS3, were pleaded and tendered in court so also, Decree 48 of 1992 which set out terms applicable, should there be need to discipline a senior staff of the University. See paragraphs 45, 6, 9, 10, 43, 44, 52 of the statement of claim (supra).

I have decided at this stage to dwell on the finding of the learned trial Judge to the effect that the appellant failed to plead this and that, this was fatal to his case. Permit me to state immediately that the much facts pleaded and testified to by the appellant was sufficient to prove the case which the appellant sought to make and made.

Most importantly paragraph 2 of exhibit SS3, his letter of appointment as Dean clearly provides that that appointment was “subject to the provisions of the University Law, Statutes and Ordinances made thereunder and to regulations governing the conditions of appointment of senior staff to be made by the University Council from time to time”.

Also, paragraph 5 states that his appointment would be governed by the provisions of the University of Agriculture Decree subject to satisfactory performances…

The Decree is Decree 48 of 1992 pleaded by the appellant. The stance taken by the learned trial Judge and parroted in their submission by the respondents, that this ought to be tendered in evidence with other regulations is, I must state with respect, not supported by law. Although, the learned trial Judge referred to the foregoing exhibits and sections 15 and 16 of the Decree in his judgment (see pages 104 of the records), he failed to appreciate and apply them, as he ought to. I hold the firm view that had he done so, he would have arrived at a different result from that of non-suiting the plaintiff/appellant. Decree 48 sets out the supervening conditions for terminating the contract of service of a senior staff. Exhibit SS3 incorporates it.

Decree 48 and any regulations made thereunder are statutes. It is well settled that facts which the court must take judicial notice need not be proved. See: Section 73 of the Evidence Act.

Also, that there are facts, which the law enjoins that the court must take judicial notice of. Among them are –

“All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria” – See section 74(1)(a) of the Evidence Act.

In such a case, the court ought to have recourse for aid to appropriate books and documents of reference and for its use – See section 74(2) of the Act.

It is well settled that reference to facts which one can take judicial notice of are facts which a trial court can be called upon to act upon from his own general knowledge or from enquires which he can make for himself to obtain his own information from sources which the law regards as proper for him to refer to. See Commonwealth Shipping Representative v. P & O Branches Ltd. (1923) AC 191 at 212. By virtue of section 73(1)(a) (supra) statutes fall among these facts. In Oluwadare Famubo & Anor. v. Adekunle (1988) 2 NWLR (Pt. 79) 723 CA, it was held that the trial High Court was entitled to have taken judicial notice of the Customary Court Law of Ondo State and any subsidiary legislation made there under. See also Adetipe v.Amodu (1969) 1 NMLR 62 SC; Benson v. Ashiru (1967) 1 All NLR 184; Maijaki v. Council Caretaker Committee (1977) 7 SC 81.

It follows, in the light of the state of the law that the learned trial Judge in this case ought to have taken judicial notice of Decree 48 of 1992 and its subsidiary legislations and not expect evidence of them. They require no proof and need not be tendered. All the learned trial Judge needed to do was look at them, and apply them. He has not done so.

I will now consider how the Statute, Decree 48 applies to the claim and its application to the issue in this appeal. A close study of the Statute, which set up powers exercisable by various organs and officials of the institutions of the University of Agriculture, which it set up, particularly with regard to the discipline of senior staff of the University has, by the reason of the issues in his matter been made inescapable. This is because of the conditions of employment in paragraphs 2 and 5 of the exhibit SS3, the letter appointing the appellant Dean of Students (supra), which incorporate the application of the statute into the appellant’s terms of employment.

The relevant sections of the Decree for purposes of this case are – sections 15, 16. Although by section 3(1)(a) the University has power to provide for the discipline and welfare of members of the University, the specific powers of governing the University however, and its control lies with the Council. By virtue of section 6(1) of the Decree the Council of the University is the governing body of the University. Sections 15 and 16 of the Decree enacted under the title, “Supervision and Discipline” make provisions for the removal and discipline of academic and administrative staff of the institution and the body to which the power is conferred is the Council. The appellant is an administrative staff.

The two sections of the Decree which also provide the modalities enact as follows:-

15(1) if it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or professional staff of the University, other than Vice-Chancellor, 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) afford him an opportunity of making representations in person on the matter;

(c) appoint a Staff Disciplinary Committee and if the Council, after considering the report of the Staff Disciplinary Committee, is satisfied that the person in question shall be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

(2) The Vice-Chancellor may in case of misconduct by a member of staff which in the opinion of the Vice Chancellor is prejudicial to the interests of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause any member of staff may be suspended from his duties or his appointment, may be terminated by the Council; and for the purposes of this subsection, “good cause”, means;

(a) conviction for any offence, which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b) …

(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office, or

(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service;

(e) conduct which the Council considers to be generally of such nature as to render the continued appointment or service of the person concerned prejudicial or detrimental to the interest of the University.

(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on half pay and the Council shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to:-

(a) whether to continue such person’s suspension and if so on what terms (including the proportion of his emoluments to be paid to him); or

(b) whether to re-instate such person in which case the Council shall restore his full emoluments with effect from the date of suspension; ‘or

(c) whether to terminate the appointment of the person concerned in which case such person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or

(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments as might have been withheld) as the Council may determine.

(5) In any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person; the Council shall before the expiration of period of three months from such decision come to a final determination in respect of the case concerning any such person.

(6) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section to use his best endeavour to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.

(7) Nothing in the foregoing provisions of this section shall;

(a) apply to any directive given by the visitor in consequence of any visitation, or

(b) prevent the Council from making regulations for the discipline of other categories of workers of the University as may be prescribed.

16(1) The Vice-Chancellor or Senate shall constitute an Investigation Panel to determine whether or not a prima facie case has been established against any member of staff.

(2) The Investigation Panel shall include the President or the Chairman of the Union to which the staff being investigated belongs.

(3) The Vice-Chancellor shall constitute a Staff Disciplinary Committee, which shall consist of such members of the Senate as he may determine, to consider the report of the Investigating Panel.

(4) The report and recommendation of the Staff Disciplinary Committee shall be forwarded to the Council for consideration and decision.

The foregoing provisions speak for themselves, the modalities are that first, it lies with the Council to determine whether it has reasons for believing that a senior staff should be removed from his office or employment and for what reason and then, to perform the acts in subsection 1(a), (b) and (c) of section 15 (supra).

The appellant’s complaint of non-compliance with the provisions of Decree 48 seems to me eloquently established, although the initial Committee called the Senate Investigation Panel and the Senior Staff Disciplinary Committee were set up by the Council which had the power under the Decree to do so, the appellant showed that the Senate Committee did not fully comply with section 16 of the Decree. The Chairman or President of the Union to which the appellant belonged was not a member as required by section 16(2) of the Decree.

Secondly, under section 16(4) of Decree 48, the report of these Committees were subject to consideration by the Council of the University, not the Minister of Agriculture and Natural Resources as the Respondents continued to present. On the whole, sections 15 and 16 of the Decree which form the bedrock of any decision relating to the discipline and termination of the appointment of a senior staff of the University were not fully complied with and this would be fatal to any decision/terminations of appointment undertaken by the University.

By virtue of the terms of employment of the appellant shown in exhibit SS3 and the incorporation of Decree 48 therein, the employment of the appellant transcends the ordinary master – servant relationship. It is an employment with statutory flavour as rightly submitted by the appellant. It can only be determined in accordance with the relevant statute.

An employment is said to have a statutory flavour when the employment is protected by statute and this occurs where appointment is governed by statute. See Fakuade v. Obafemi Awolowo University Teaching Hospital (OAUTH) (1993) 5 NWLR (Pt.291) 47.

It is to be observed that the condition for the determination of the contract of employment of a senior staff, such as the appellant, set out in Decree 48 as incorporated in his letter of appointment creates a legal character of the employment governed by the Decree.

The way to legally terminate such employment is to adhere to the provisions of the statute see Fakuade v. OAUTH (supra), Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 690 at 320 and 346. Two cases determined by our apex court, Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599 are locus classicus with respect to the principles that such contract unlike the ordinary master-servant relationship is subject to the Statute which is applicable to it. They are binding on this court. Psychiatric Hospital and Management Board v. Ejitagha (2000) 11 NWLR (Pt. 677) 154 at 16 SC, is a case which once more re-affirms the principles that a public body in exercise of statutory powers must act only within the powers conferred by the statute and must not exceed or act outside those powers. The respondents need heed this.

The respondents in their defence and submission tout the name of the Minister as the source of their power to terminate as they did, the employment of the appellant. I see no such powers conferred by the enabling Decree 48 of 1992 on the Minister of Agriculture and Natural Resources. Quite significantly, the learned trial Judge did appreciate this and made a finding that there was no evidence from the respondents to prove this. I agree. That notwithstanding the learned trial Judge did not apply the finding judicially. It is the council which has the powers under the Decree, and the respondents have not complied with the Decree. The court below ought to have come to a different decision.

It must also be observed that much of the relevant evidence proffered by the appellant remained uncontroverted. Particularly regarding the import of exh. SS3, the evidence of bias, that the panel was not properly constituted, and breach of sections 15 & 16 of Decree 48. It ought to have been acted on by the Court. 5ee Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27 5C, also reported in (1997) 7 5CNJ 109, 123-124, Otuedon v. Olugbor (1997) 9 NWLR (Pt. 521) 355 5C, Oguma v. IBWA (1988) 1 NWLR (Pt. 73) 658 and Egbunike v. ACB (1995) 2 NWLR (Pt.375) 34, (1995) 2 5CNJ 58 cited for the appellant, also reported in (1995) 2 NWLR (Pt. 375) 34 and Nzeribe v. Dave Engineering Ltd. (1994) 8 NWLR (Pt. 361) 124 at 139. The decision reached by the court below shows that it did not also advert its mind to this and did not use the evidence and applying the law. The answer to the respondent’s contention that the appellant had not proved his case or discharged the onus of proof on him and could not rely on the weakness in the case of the defence, in that he failed to tender evidence of the terms and conditions of his employment is simply misconceived. The appellant tendered sufficient evidence in exhs. SS1, SS2, SS3 and SS4. Together with Decree 48 of 1992 and the regulations applicable to him by virtue of exh. 553, and which the court must take judicial notice of (see also Adene v. Dantunbu (1994) 2 NWLR (Pt. 328) 509 at 524, per Uwais, JSC, now the (CJN), there was enough material for the court below to determine that the appellant had discharged the onus on him and that the respondents and any Committee which they or the Minister of Agriculture set up have no powers to determine the contract of service of the appellant by virtue of sections 15 and 16 of Decree 48.

The case of Katto v. CBN (supra) cited by the respondents’ learned counsel contains good law but does not apply to this matter where necessary material was before the court containing the terms and conditions of the appellant’s employment which ought to have enabled it determine the claim. All that has been stated earlier in this judgment regarding the pleadings and the evidence clearly identified, point to the fact that the trial court had not properly appreciated and evaluated the evidence before him. He had not come to the correct decision.

It is trite law where a trial court fails to evaluate, or to properly evaluate the evidence before it, that the appellate court has powers to intervene in the interest of justice. See Kwajaffa v. Bank of the North (1999) 1 NWLR (Pt. 587) 423; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643.

It is also trite law that where evidence has been led in the lower court which establishes a fact, an appellate court will make necessary findings of fact which the lower court failed to make. Akibu v. Opaleye (1974) 1 All NLR (Pt. 2) 344 at 356, Sampson Awoyale v. Joshua Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 at 634 SC.

This is an appropriate case for this court to interfere with the finding of the learned trial Judge to ensure that justice is done.

In the light all of the foregoing, one is bound to state with respect that the order of non-suit entered against the appellant by the learned trial Judge was not justified, when the pleadings and the evidence adduced before the court and the applicable laws are taken into account.

This is even more so when it is realised that the learned trial Judge himself made a finding after considering the evidence of the defence, that the respondents had failed to show that the Minister of Agriculture and Natural Resources had no powers to act in the absence of the University Council and when they could not produce any written evidence of the Minister’s approval or delegation to the Registrar to have the appellant’s employment terminated.

The Registrar or anyone who procured the issue of the letter of termination of the appointment of the appellant clearly acted ultra vires.

One other issue which calls for comment, and what is important is that the recommendation of the Senate Investigation Committee, whose competence has in my view been successfully challenged, was that the appellant be reprimanded, removed as dean and deployed elsewhere. Even if the committee was properly constituted. It did not recommend that his employment be terminated as the respondents have done. In any event for any recommendation to be effective and lawful, it must be forwarded to the Council for consideration and approval. See section 16(4) to Decree 48 of 1992 (supra).

All the foregoing taken into account, I would resolve issue No.1 in favour of the appellant. The grounds of appeal, 1, 3, 5 and 8 aligned thereto succeed.

Issue No.2

This issue attacks the court’s decision on the failure of the learned counsel for the defendants/respondents in the court below to sign and date his written address. The learned trial Judge held that this omission is not of any particular moment, that the appellant gave no particulars of any miscarriage of justice and besides, counsel for the respondents had openly adopted the submission in court and it had become part of the court’s records.

In this appeal, the appellant argued that the legal effect of signing and dating of documents is a mark of authenticity and validity and that an unsigned document is worthless. Counsel submitted that this renders the address null and void. He cited legal authorities in support.

Learned Counsel for the respondent after conceding that the final address was not signed or dated as at the date of filing but said it was by leave of the court upon application and consent of parties on 23/1/2001 signed and dated.

Counsel argued that the defence counsel having adopted the written address in open court as the document made and filed by him, the adoption has made it authentic and validates it. He said that failure to sign was a mere irregularity which had been cured. In any event, it did not affect the judgment, an address being only to assist the court.

Not every unsigned document is void.

The authorities relied on by the appellant’s counsel seem to apply to specific types of documents and would not apply to an address which the rules of the High Court or the law does not specifically require to be in writing and signed. I must not fail to state that it is desirable for counsel to sign and date documents being filed in court which is made by him. It is well settled that an unsigned and undated judgment is null and void and of no effect – See Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461; Akinola Awoniyi v. Aleshinloye & 5 Ors. (1998) 9 NWLR (Pt. 564) 71 at 76. In A.-G., Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) 362, it was held, where an unsigned and uncertified document purporting to be a Constitution governing the selection of a ruler in a community being relied on to prove that he was duly elected ruler is void and of no effect, particularly as the alleged maker had not been called to testify. I do not think the foregoing authorities relied on by the appellant would apply to a written address filed and later adopted in the High Court.

I hold the view that failure to sign and date a written address later adopted in open court by counsel who made it ought to be cured of the ills, if any to which the document might have been liable. A different principle may apply to court processes filed pursuant to rules of court such as a, written brief of argument filed under Order 6 of the Court of Appeal Rules, 2002.

In any event, this issue does not merit all the rancour which has attended it. I agree with the learned trial Judge that no injustice or miscarriage of justice has arisen therefrom.

More specifically, no law or rules of court require parties in the High Court to file a written address, prescribing its form. A written address is no pleading or process. It is no evidence.

A final address after trial is to help the trial Judge appreciate the case of the parties, and whether an address is delivered by a party or not, is important but it is not of major implication, provided that the party has not been denied the right to address as part of his constitutional right of fair hearing. It must be stated that all the foregoing does not underscore the advisability of makers of documents, particularly to be filed in court to sign them. As to dating such a document, the date of filing could cure the failure of the maker or counsel to date.

The determination of this issue does not however advance the case of the appellant one way or another. It was better ignored together with its ground 2 inspite of what has been stated above.

Issue No.3 questions whether the learned trial Judge accorded the appellant fair hearing by introducing the equitable doctrine of election without calling for the address from parties and by not utilizing the final address of the appellant.

The appellant’s complaint is that the learned trial Judge introduced “suo motu” the doctrine of election and payment of compensation to the appellant as disqualifying factors to the appellant’s claim. He also complained of failure by the court to give consideration to the appellant’s final address in the judgment.

It is to be noted that the learned trial Judge had invoked what he called “equitable doctrine of election which is such that a party can only be allowed to benefit from a document and also be willing to take whatever other provisions of it that did not look good”. He applied this to determine that the appellant having received compensation recommended by the Senate Panel in its report, that the law would not allow him to seek to impeach the same report as null and void because it indicted him of incompetence.

In his brief of argument, learned Counsel for the respondent justified the court’s finding, pointing out that the appellant admitted assessed damages or N1.5million made and recommended by the same panel and payment to him of N987,242.68 plus N250,000. He concluded that he could not approbate and reprobate at the same time and that the finding of the court was not perverse. Counsel finally pointed out among others, that the appellant has not pointed out what issue raised in his address was not considered by the trial court. He concluded that fair hearing was accorded the appellant by the court.

I believe that had the appellant had a more co-ordinated view of his case, the attack which he unleashed on this part of the judgment of the court below would have been different and more to the point. It has not been so.

It is my respectful view that in the case of the appellant what is central to his entire claim has been addressed in issue No. 1. It is against the Senate Investigation Panel which looked into the students’ rampage and on whose recommendation the respondents through the Senior Staff Disciplinary Committee acted, culminating in the termination of his employment.

He charges the Senate Panel of acting ultra vires, having regard to its terms of reference – See paragraph 52 A-D of the statement of claim (supra). Looking at the terms of reference set out earlier in this judgment, he is right.

If the panel acted outside its terms of reference by indicting the appellant when its terms of reference did not confer the vires on it, but acted within its terms of reference in assessing the damages caused by the students’ rampage, the reasoning and conclusion reached by the court and adopted by the respondents in their submission set out above, would be non-sequitur. It is so in my view.

The respondents know that the power to initiate action to terminate and the confirmation of recommendation of any Committee which the University Council set up for the purpose, is vested in the Council. See exh. JMK 6 tendered by the respondents at the trial. Under issue No.1, this court had determined that by virtue of sections 15 and 16 of Decree 48 of 1992, the ‘vires’ to set up the proceedings for initiating action to terminate the appointment of a senior staff, such as the appellant, and the confirmation of his termination lie with the University Council. Thus, the initiation of the procedures through the Senate Panel, and/or the Senior Staff Disciplinary Committee, or by the Minister and the Registrar, to the termination without the Council as done without the power conferred by statute, is done ultra vires and is void.

I am bound to state that the right to protection from termination conferred on senior staff of the University by Decree 48 is not linked with that to claim compensation for loss or damage caused by students’ rampage which stands on a different wicket. The rights are not interdependent. In the circumstances, the reasoning that the appellant who claimed a right for damages cannot claim for breach of his statutory right to protection from termination of his appointment, is eminently non-sequitur. It is not supported by legal authority.

In any event, the issue or defence of equitable doctrine of election does not in any way arise at the proceedings in the court below. It did not come up for determination there, either in the pleadings or evidence in court. See these and the address of parties on record – see also the respondents’ statement of defence (supra) and the written address at pages 46 – 54 of the records. I agree with the submissions of the appellant that the learned trial Judge raised the issue suo motu. With respect, the law does not allow him to do so without calling on the parties to address thereon. Otherwise, the court will be adjudged as having denied the parties their right of fair hearing.

This follows our adversary system of administration of justice, which ensures justice to all. The principle that a Judge cannot raise any issue of fact suo motu and proceed to decide on it without hearing the parties, ensures that the judgment of the court is confined to issues of fact duly raised and canvassed by the parties. See Kuti v. Balogun (1978) 1 SC 53, (1978) 1 LRN 253; Atanda v. Lakanmi (1974) 1 All NLR (Pt.1) 168; Ochonma v. Unosi (1965) NMLR 321; Finnih v. lmade (1992) 1 NWLR (Pt. 219) 511 at 537; Odiase v. Agho (1972) 1 All NLR (Pt.1) 170; Overseas Construction Co. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407.

I would determine this part issue 3 in favour of the appellant.

As to the complaint that the trial court failed to utilize the final address of the appellant, I intend to ignore it, there being no material provided to enable this court to determine it and its effect. The appellant’s learned Counsel failed to identify what was not utilized and for what purpose. Also, it is well settled that the address of counsel is not evidence or law which the trial court is obliged to apply. It is however concluded that the important element in issue 2 is answered in appellant’s favour.

Issue No.4 questions the finding that the appellant lied to the court below when he testified that he appeared before a Committee known as Senior Staff Disciplinary Committee and was not accorded fair hearing and not as the respondent stated, before a Senior Staff Disciplinary Cases before which the appellant denied appearing and which the respondent maintained accorded him after hearing.

The learned trial Judge in his judgment said, regarding this matter – “I have looked at all the evidence before the court and I cannot see how the plaintiff can complain of being denied fair hearing when it is so clear from the records that he had appeared before both the Senate panel, the Dr. Goni Committee and Prof. Anugwa Committee and had made representations thereat. I have looked at the copies of these reports and I am sufficiently satisfied that the plaintiff had been afforded sufficient opportunity to make his case.

It was not fair for the plaintiff to tell a lie to the court during cross-examination by counsel for the defendants that he did not at all appear before the administrative body headed by Prof. Anugwa. The plaintiff told a lie to the court. To my mind, this to my mind affected his credibility as a witness of truth … This clearly shows his desperation to have his employment back. But he can only get his employment by adducing credible evidence before this court”.

In the light of the foregoing and from the final decision of the court below, this finding clearly played in the mind of the court. He did not grant his claim.

Question – was this justified?

I think not. For, the evidence which appellant gave in court, having regard to the documentary exhibits tendered, shows that the appellant did not lie. Rather, the whole argument as to the Committee before which the appellant appeared, is to me a mere storm in the tea-cup which was misapplied. It arose from a misnomer created by the respondents, causing what looked like a play on words by the appellant in cross-examination. This unfortunately lost him the court’s understanding. I must state with due respect that the learned trial Judge did not appreciate this.

What has been stated above is evident from what the court below recorded while reviewing the evidence of the witnesses in his judgment and from the evidence on record. There was no time the appellant denied appearing before the Prof. Anugwa or Dr. Goni Committee in his evidence. At page 99 of the records, the court below recorded that the plaintiff told the court that he appeared before the Senate Investigation Panel as a witness and victim and concluded that this panel made recommendations against him outside its terms of reference, that sequel to the Senate Panel, the Governing Council set up a Senior Staff Disciplinary Committee to implement the report of the panel.

Furthermore, that he was invited to appear before another Administrative Committee, on Senior Staff Disciplinary Cases for his alleged involvement in the students’ rampage in 1994, headed by Prof. Anugwa who was also a member of the earlier committee headed by Dr. Goni i.e. the Council’s Senior Staff Disciplinary Committee.

The foregoing tallies only to some extent with the testimony of the appellant at page 80 of the records which also recorded that Dr. Goni’s report did not find him wanting in any way. The appellant testified (at page 81) that on 28/8/98, he was invited before another Senior Staff Disciplinary Committee alleging to be involved in the students’ rampage and asked to defend himself. He protested his innocence when he wrote to the Chairman. This was the committee headed by Prof. Anugwa who was also a member of the 2nd Senior Staff Disciplinary Committee.

He also testified-in-chief that he was not, “aware of any Administrative Committee of Senior Staff Disciplinary Cases” – (see page 81 of the records, last sentence (Italics mine).

In cross-examination, the appellant repeated this evidence at pages 86-87, repeating at page 87 line 6 as follows:-

“I did not appear before any Administrative Committee on Senior Staff Disciplinary Cases”.

The word “Cases” should be noted in the name of the Committee as presented by the respondents and ostensibly taken in by the court. He added that he was not aware that it was the Minister of Agriculture who approved the appointment of this Disciplinary Cases Committee as a result of his petition to him … and further added later, that section 16 of the University law set out modalities for setting up administrative committees.

It is quite clear from the foregoing what the appellant said both in-chief and in cross-examination. He did not lie, but named the panel and committees before which he was summoned. The documentary exhibits buttress this.

The name of the Committee to which the appellant was summoned is shown without doubt in various exhibits as “Senior Staff Disciplinary Committee”. These were letters of invitation to him. These are – exhs. 6 and SS8 letter signed by M. T. Atsaka, Secretary to this Committee, dated 13/4/95, exh. SS9 – signed by the same secretary, exh. SS9, another memo dated 12/5/95 from the same secretary M. T. Atsaka to the appellant, exhs. SS10 and SS11 are also memos dated 28/8/98, and 31/8/98 invitations to appear before the same Committee. Ostensibly Mr. F.N. Akpo had become secretary and signed this. All the memos – exhs. SS8 – SS11 emanated from the respondents, sent to the appellant.

The name of the Committee being put forward by the respondents which the court seemed erroneously to have bought, I must respectfully point out, viz Senior Staff Disciplinary Cases is simply a creation of the respondents. Rather than 3 panels as submitted by the respondents’ counsel, at pages 6-7 of his brief of argument, there were just two panels which met at different times.

One of them met twice:-

(1) The Senate Investigation Panel into the students’ rampage on 11/6/94. The appellant was a witness, and

(2) The Senior Staff Disciplinary Committee, which met twice, one set up by the Council before its term ended under Dr. Goni’s chairmanship and two, under Prof. Anugwa’s as chairman, not by the Council.

I agree with Mr. Akubo, learned Counsel for the appellant that the appellant did not lie regarding this when he said he did not appear before any Senior Staff Disciplinary cases.

As a matter of fact, in declaration B (supra) sought by the appellant in his claim, he referred to his “alleged appearance before a non-existing and improvised administrative committee on Senior Staff Disciplinary Cases …”

The evidence of the appellant is entirely consistent with his claim.

The testimony concerning this is not false or so false as to justify the learned trial Judge’s finding at page 104 of the records that the plaintiff had told a lie to the court which as the court put it, “… without doubt affected his credibility as a witness of truth …” This position taken by the court certainly affected its final decision which in my view is unwarranted.

It must be clearly and firmly stated with all due respect to the learned trial Judge that he was in grave error. He had not properly evaluated the evidence before him particularly the documentary evidence. This appeal court is obliged therefore to interfere with his findings for that reason. See Ebba v. Ogodo (1984) 1 SCNLR 372, Fatoyinbo v. Williams (1956) SCNLR 274 also cited (1956) 1 FSC 87 applying the case of Watt or Thomas v. Thomas (1947) AC 484 at 487-488 (per Lord Thankerton). See also Jack v. Whyte (2001) 6 NWLR (Pt. 709) 266 at 283 SC cited by learned counsel for the appellant, also Udo v. C.R.S.N.C. (supra).

This issue is determined in favour of the appellant. Grounds 6 and 7 of the grounds of appeal which it covers succeed. Issue No.5 complains of the failure by the learned trial Judge in delivering his judgment within the 3 months constitutional period after parties delivered their final address at the conclusion of the trial. Final address was on 23/1/2001 but the judgment, though dated 5/5/2001, was actually delivered on 17/7/2001, over 5 months after the final address, contrary to section 258(1) of the 1979 Constitution of the Federal Republic of Nigeria.

There is nothing on record explaining the delay. It is only observed that after the address, on 23/1/2001, the matter was adjourned for judgment to 18/4/2001. On that date the learned trial Judge recorded this:-

“It was not possible for the judgment to be ready in this matter today… Adjourned to 20/4/01”.

There is nothing shown in the records regarding any sitting on 20/4/2001. The next sitting recorded was 17/7/2001, when the court recorded its delivery of the judgment dated 5/512001 in open court.

For the appellant, Mr. Akubo put forward the following submissions:-

That admittedly, under sub-section 4 of section 258 of the Constitution (as amended), failure to deliver judgment within the stipulated period of 3 months would not ordinarily render the judgment a nullity, unless the appellant can show that the delay has occasioned a miscarriage of justice. See the cases of Mika’Ilu v. State (2001) 8 NWLR (Pt.715) 469 at 482-483; Rossek v. African Continental Bank Ltd. (1993) 8 NWLR (Pt. 312) 382.

To invalidate the judgment in question, therefore he conceded, it is not enough to say that the judgment was not delivered within three months after conclusion of final address. The appellant is obliged to show that the failure to deliver the judgment within three months has occasioned a miscarriage of justice.

Learned Counsel argued that due to the time lapse of almost six months, the learned trial Judge had lost grasp of the evidence adduced at the trial. He gave some examples – N250,000 compensation referred to as N25,000, contrary to the finding of the court, the appellant never said in his evidence-in-chief that he appeared before Administrative Committee on Senior Staff Disciplinary Cases but the antithesis. That the appellant never said that Prof. Anugwa was Chairman of the Administrative Committee on Senior Staff Disciplinary cases or that he thoroughly abused him. Rather, the Appellant said Prof. Anugwa was the chairman of the Senate panel and also made a member of the second Senior Staff Disciplinary Committee and the learned trial Judge came to the conclusion that the appellant lied to the court when the evidence on record shows that he did not.

Counsel concluded that the time lapse explains the prejudicial findings of fact against the appellant occasioning miscarriage of justice as he was non-suited.

In reaction to this issue, learned Counsel for the respondent J. M. Kondoun, Esq., referred to the relevant Constitutional provisions in section 258(1) and 258(4) of the 1979 Constitution. He stated that the transfer of a Federal High Court Judge is a matter judicially noticed, that there was transfer of the learned trial Judge Gumel, J., from Jos to Lagos towards the conclusion of the trial, the hardship and inconveniences attendant to his having to come from there was not in doubt.

Let me state here, before continuing that there is nothing on record or before us to buttress the above. It is not one of the items set out for judicial notice under section 74 of the Evidence Act.

Counsel also submitted that no miscarriage of justice has been occasioned by the judgment, and the figure of N25,000 et al and Prof. Anugwa’s chairmanship was a typographical error. He said the fact on record remains that the appellant was paid in two installments of N250,000.00 and N907,212.68 by the respondents and that none of these anomalies affected the case of the appellant. He insisted as he did under issue No.4 (supra) that the appellant clearly lied before the court as the facts which he relied on under issue 4 show. Counsel concluded that the court below never lost grip or appreciation of the evidence.

Upon considering this issue and the submission of learned Counsel for the parties, it has been observed that the examples cited by the appellant and in the respondents’ submissions relate to matters already determined under issue No.4 (supra) in favour of the appellant. Whether the learned trial Judge’s prejudicial findings which this court had so determined thereunder as unwarranted, was caused by the lapse in time may not need to be flogged. It must be realised that the learned trial Judge made some other findings which conform and were in accordance with the evidence on record. A typical example being his findings that the respondents had failed to tender evidence showing that they had the mandate of the Minister of Agriculture to constitute the Disciplinary Committee leading the University to terminate the appellant’s employment. This finding is favourable to the appellant. His counsel hailed it in his submissions. If his memory had become so warped, as presented for the appellant, how come he made such other sound findings based on evidence and which accord with the evidence on record?

Having read the judgment of the court below over and over again, it is not justifiable to pin the obvious errors of that court found under issue No.4, to loss of memory due to his failure to deliver the judgment within the constitutional period of 3 months and doing so about two months later.

It is indeed well settled that pursuant to section 258(4) of the 1979 Constitution an appellate court may only declare a nullity, judgment delivered outside the 3 months period, if the appellant can show that the delay has caused a miscarriage of justice. See Mika’Ilu v. The State (supra) and Rossek v. African Continental Bank Ltd. (supra) cited for the appellant.

Applying these principles herein, it is most important to point out that the damaging error which is paramount in this appeal and caused a miscarriage of justice, arose from the part of the judgment of the court below where he failed to apply the law, viz, sections 15 and 16 of Decree 48 of 1992 which he was aware of, as he referred to it in his judgment.

The real crux of the error of the court below lies in its failing to determine that by virtue of these provisions of Decree 48 (supra), neither the Registrar, any administrative committee, the Vice-Chancellor/University and even the Honourable Minister of Agriculture had the ‘vires’ whatsoever to initiate and conclude without the University Council, any action to terminate the services of a senior staff of the University, such as the appellant. Rather, that it is the Council of the University which is vested with those powers and thus, that the termination of the appellant’s employment complained of is void and of no effect.

That error was not the result of lapse of time giving rise to non-evaluation or improper evaluation of evidence as in Ariori v. Elemo (1983) 1 SCNLR 1. It was a question of the non-application of the relevant statute – laws which has rendered the termination void. I would rather leave the matter there and not invalidate the judgment for the above reason. I am concluding that it is not because the court below lost grip of the evidence adduced at the trial due to the two months delay, that the respondents had breached the right of the appellant and the learned trial Judge had misdirected himself in the parts of the evidence addressed under issue No.4. It is not the issue which is overtly detrimental to the case of the appellant but the court’s failure to apply the provisions of the Decree in terminating the appellant’s employment.

Issue 5 is answered in the negative and so ground 9 of the appeal fails.

In summary, this appeal in the main succeeds. The judgment of the Federal High Court delivered by Gumel, J., on 17th July, 2001, non-suiting the appellant is set aside. In its place, judgment is entered for the appellant in terms of his claim. The termination of the appointment of the appellant as Dean of Students of the University of Agriculture, Makurdi is set aside. The appellant is entitled to reinstatement and payment of his salary and entitlements as claimed with effect from November, 1998.

There will be N10,000.00 costs to the appellant from the respondents.

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Other Citations: (2004)LCN/1616(CA)