University of Ilorin & Anr V. Prof. J. A. Akinyanju (2007)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

By originating summons filed by the Respondent dated 20th February, 2006 and filed the same day, he prayed the Lower Court for the following reliefs against the Defendants/Appellants.

“1) A DECLARATION that the exercise by the Plaintiff of a right to freedom of expression including the freedom to hold opinions and to receive and impart ideas and information as guaranteed under the Constitution and recognized under the statute regulating the employment of the Plaintiff vide a Memo written to the Congregation of the University on December 1, 2000 cannot qualify for a misconduct as to warrant the termination of the appointment of the Plaintiff on the footing thereof.

2) A DECLARATION that at whatever event it was not right for the Defendants to terminate the appointment of the Plaintiff on account of the said Memo written by the Plaintiff to the Congregation of the 1st Defendant University in exercise of the Plaintiff’s constitutional and statutory right to freedom of expression etc. On the allegations that the Memo was in breach of normal channel of protest communication and that it caused disaffection within the University and so on when the Defendants did not substantiate their claims that the Plaintiff thereby breached the normal channel of protest communication and caused disaffection within the University and so on.

3) A DECLARATION that it was not proper for the Defendants to terminate the employment of the Plaintiff on account of the Memo when the Defendants did not establish that the contents of the Memo were false and when the position expressed in the Memo was vindicated vide the judgment of this Honourable court in Suit No. FHC/IL/CS/48/99: PROFESSOR TUNDE ODULEYE VS. UNIVERSITY OF ILORIN & ORS. Which was delivered before the purported trial of the Plaintiff.

4) AD ECLARATION that it was not proper for the Fact Finding Committee from whose Report SDAC and Council of the University derived the basis for terminating the appointment of the Plaintiff to rely on matters that had taken place in the past that were not investigated by the committee to be made bases for making prejudicial comments against the Plaintiff and recommending on that footing that the Plaintiff’s matter be referred to the SDAC for appropriate disciplinary action.

5) A DECLARATION that it was not proper for the Defendants to terminate the employment of the Plaintiff for unspecified “acts of misconduct in the course of (his) official duties” as stated in the letter of termination when he was not confronted with such acts of misconduct in the course of his official duties or given hearing in respect thereof at whatever stage.

6) A DECLARATION that assuming the Defendants could institute disciplinary proceedings against the Plaintiff on account of his Memo to Congregation which the Defendants purportedly construed to be an act of misconduct, the Plaintiff was not accorded fair hearing in the processes that culminated in the purported termination of his appointment with the 1st Defendant University by virtue of which the purported termination in unconstitutional, ultra vires, null, void and of no effect whatsoever.

7) A DECLARATION that the Defendants did not ultimately follow the due process of law as enshrined in section 16 of the University of 1I0rin Act Cap. U7, Vol. 15, Laws of the Federation of Nigeria, 2004 before purporting to terminate the appointment of the Plaintiff and consequently the purported termination is unconstitutional, ultra vires, null, void and of no effect whatsoever.

8) AN ORDER reinstating the Plaintiff back to his office in the 1st Defendant – University with all his rights and privileges attached and without loss of promotion and directing the payment forthwith of his salaries and allowances with effect from the date of his suspension from duties, idest 8th March, 2001 till the date of judgment in this action and thenceforth.”

The said originating summons was supported by a 72 paragraph affidavit which spanned pages 5 – 12 of the record, while exhibits A – O were the annexures to the said affidavit. These could be found on pages 13 – 91 of the record.

The Defendants who are the Appellants before this court on being served with the said originating summons and its attachments entered through their counsel a conditional appearance dated and filed on the 6th day of March 2006. This could be found on page 62 of the record.

However, in response to the affidavit in support of the originating summons of the Plaintiff/Respondent, a joint counter-affidavit was filed by the defendants/applicants; the said counter-affidavit was deposed to by one Ibrahim A. Oyeyemi, an acting Director in the Legal unit of the 1st Appellant. The said counter-affidavit is of 34 paragraphs and it has attached to it exhibits UNILORIN 1 – 6 which spanned pages 94 – 123 of the record.

The Defendants/Applicants having perused all the aforementioned processes discovered, and rightly in the view of the learned trial Judge, that the action was not the one which ought to have been instituted vide originating summons consequent upon which a Notice of Preliminary Objection dated 29th of March, 2006 and which was filed on the same day was brought before the lower court. The said notice of preliminary objection could be found on pages 124 – 125 of the record.