University Of Ilorin & Ors V. Dr (Mrs.) Aize Imonokhome Obayan (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

When this appeal was called for hearing on 6 November, 2017 Mr. Arosanyin of counsel who settled the appellants brief was absent. The Court registrar said that learned counsel was duly notified through a message sent to him on 3 November, 2017. Mr. John Baiyeshea learned senior counsel for the respondent then applied that since the parties had filed and exchanged the briefs, the appeal should be deemed as having been argued ex parte in accordance with Order 2 Rule 11(3) Supreme Court Rules.

The respondent was employed as a lecturer in the Department of Guidance and Counseling of the University of Ilorin in 1986. In 1997 she applied for sabbatical leave and one year sabbatical leave was approved by the Appointments and Promotions committee of the university. She then proceeded to the School of Psychology and Counselling, Rose Hampton Institute London. After the sabbatical, she applied for a year’s leave of absence which was granted by the same Appointments and Promotions committee of the university. On the expiration of the one year leave of absence the

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respondent did not resume at the university but wrote requesting for additional four months. This request was refused and a letter dated 25 March, 1999 said to have communicated the refusal for the extension was sent by mail to the overseas address which she had supplied. She did not report for work until 1 September, 1999.

On 22 September, 1999 the appellants sent a letter to the respondent intimating her that she had voluntarily terminated her appointment with the appellants for failing to report for work after the expiration of the additional one year leave of absence after the expiration of the sabbatical leave. The respondent thereafter filed a suit at the Federal High Court, Ilorin, claiming the following reliefs: –

1. A DECLARATION that the Defendants’ letter reference UI/SSE/PF/818 of 22 September, 1999 purporting that the plaintiff had voluntarily terminated her appointment with the 1st defendant with effect from 17 day of April, 1999 is ultra vires, null and void and of no effect whatsoever.
2. A DECLARATION that the Plaintiff is still in the service of the 1st Defendant as a Lecturer and an Associate Professor in the Department of

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Guidance and Counseling of the University.

3. AN ORDER directing and/or compelling the Defendants to reinstate and restore the Plaintiff to her post as a Lecturer and as Associate Professor in the Department of Guidance and Counselling of the University and to restore to her all her rights entitlements, and other perquisites of that office.
4. AN ORDER directing/compelling the defendants to pay to the plaintiff all her salaries and allowances from September, 1999 to the day of judgment and thenceforth.

The trial Court dismissed her case and she appealed to the Court of Appeal Ilorin which upturned the judgment of the trial Court and granted all the reliefs she sought.

It is against the judgment of the lower Court that appellants appealed to the Supreme Court.

The appellants formulated seven issues from eight grounds of appeal and except for issue 7, the appellants formulated more than one issue from a single ground, a practice that is highly deprecated by the appellate Courts

The issues raised in the appellants’ brief are: –

1. Whether the trial Court did not consider the totality of the evidence and circumstances before

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him in reaching his decision as held by the Court below. (Grounds 1, 2 and 3)

2. Whether the burden is not on the respondent to prove that the 4 months additional leave was granted to her to overstay her leave of absence (Grounds 3, 5 and 6).
3. Whether the appellant issued Exhibit 20 immediately they were aware of the Respondent presence in the premises and whether the appellant condoned the transgression of the Respondent (Grounds 3 and 5).
4. Whether the case of Prof. Oyewole was not distinguishable from the Respondent’s case (Grounds 4 and 6)
5. Whether Exhibit 20 was not properly issued by the appellant and whether the said Exhibit was issued without authority (Ground 5).
6. Whether the Court below properly interpreted Section 7.13.14 of the Revised Regulations governing the conditions of service for Senior staff (Exhibit 25) and whether the respondent was given fair hearing.
7. Whether the doctrine of estoppel and Section 151 of the Evidence Act apply to the case of the Respondent. (Ground 7)

The respondent filed preliminary objection to the eight grounds contained in the Notice of Appeal which he said were incompetent

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and therefore the appeal should be struck out since all the grounds are of mixed law and fact.

He however distilled two issues for determination of the appeal. The issues are: –

1. Whether the Court below was right in holding that the appellants were wrong in terminating the respondent’s appointment without giving her the opportunity of being heard in accordance with the provision of Section 15(1) of the University of Ilorin Act Cap, 455 Laws of the Federation of Nigeria 1990 having regards to the facts, the evidence and general circumstances of this case. And whether the Court below correctly applied the doctrine of estoppel to this case. Grounds 1, 2, 3, 4, 6, 7 and 8 of the grounds of appeal.
2. Whether the Court below was right in nullifying and setting aside Exhibit 20 for having not been issued by the appropriate authority having regard to the relevant provisions of University of Ilorin Act Cap. 455 Laws of the Federation 1990. Ground 5 of the grounds of appeal.

The appellants filed a reply brief in answer to the preliminary objection. I will deal with the preliminary objection before considering the issues in the main appeal.

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Mr. Baiyeshea SAN for the respondent contends that the appeal is incompetent because all the grounds contained in the Notice of appeal are grounds of mixed law and fact and the appellants failed to seek and obtain leave either from the Court below or this Court as required by Section 233(3) of the 1999 Constitution in order to make them competent. He submitted that the appellants cannot appeal to this Court as of right from the decision of the Court of Appeal on grounds of mixed law and facts without seeking and obtaining such leave to file the Notice of Appeal. He further submitted that since the appellants failed to comply with the mandatory provisions of Section 233 (3) of the Constitution, it is fatal to the appeal and relied on Central Bank of Nigeria & Anor v. Aite Okojie & Ors (2002) 3 SCNJ 150 at 152-153 where Belgore JSC (as he then was) held that: –

“The ground of appeal in the instant appeal is clearly not of law but of mixed law and fact and no leave having been obtained to file it, the appeal contravenes Section 233(3) of the Constitution and it is therefore incompetent.”

Chief Arosanyin, learned counsel for the appellants submitted

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that all the grounds of appeal and the particulars accompanying them are grounds of law and not grounds of mixed law and fast requiring leave and so the appeal is competent. He said that grounds 1, 2, 3, 4, 5, 6 and 8 have to do with inferences to be drawn by the Court below from the documents tendered and the interpretation of Sections 7, 13 and 14 of exhibit 25 while ground 7 complained of the application of the doctrine of estoppel against the appellants.

In Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 this Court held that a decision on the point whether a ground of appeal raises question of law alone does not depend on the label an appellant gives to the ground in question. Such a decision involves an examination of the ground of appeal as framed together with the particulars thereof before resolving the point at issue. And where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law provided it is limited to admitted or proved and accepted facts.

I have critically examined the grounds of appeal and the particulars supplied and I am satisfied that grounds 1, 4 and 7 in the

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Notice of Appeal are grounds of law and therefore competent grounds. Grounds 1 and 4 have to do with inference to be drawn by the Court from evidence adduced at the trial Court while ground 7 raises the issue of estoppel. The preliminary objection fails and I hereby overrule it.

ISSUES IN THE APPEAL

On issue no. 1 learned counsel submitted that contrary to the decision of the Court of Appeal the trial Court considered the totality of the evidence and the circumstances of the case presented by both parties before arriving at its conclusion. The trial Court wondered why it was only Exhibit 19 which did not reach the respondent. He said the burden of proving that the 4 months additional leave was granted to her to overstay her leave of absence was on her. Learned counsel argued that from the respondent’s admission that she wrote a notification to the Registrar of her resumption and submitted the letter through Dr. A. A. Adegoke who was the Head of Department, she did not visit the Vice-Chancellor or the Registrar of the University when she returned on 16/8/99. Regarding Exhibit 20 and 20A, learned counsel argued that Exhibit 20 is not a letter of

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termination but a mere letter of information to the respondent that since she had unlawfully absented herself from duty, she should consider herself as having voluntarily terminated her appointment. Consequently, the council should not be saddled with the responsibility of writing the letter and the learned trial judge was right when it found that regulation 7.13 does not impose any duty on the Vice-Chancellor that he must sign every letter emanating from the University personally.

Learned counsel referred to Regulation 7.13.14 of Exhibit 25 – the Revised Regulations governing the conditions of service for senior staff which provides-

“7.13.14 That the one year leave of absence after sabbatical leave shall continue to be allowed. However, if the officer fails to return to duty after this period of one year he/she shall be deemed to have terminated his/her own appointment and the post declared vacant.”

and submitted that by Exhibit 25, and the action of the respondent, the respondent had voluntarily terminated her appointment.

Learned counsel further submitted that Regulation 7.13.14 is not in conflict with University of Ilorin Act Cap. 455

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and Section 36 of the Constitution. He contended that Exhibit 25 is complimentary to Cap 455 and submitted that under Section 15(3)(d) of the University of Ilorin Act, the appellants can terminate the respondent’s appointment for good cause and for conduct which constitutes failure or inability to discharge the functions of her office. He maintained that failure of the respondent to report back to work as at when due without permission and authority of her employer violated both paragraph 7.13.14 of Exhibit 25 and Section 15(3)(d) of the University of Ilorin Act and that the learned trial Judge was right to hold that the respondent on appointment has submitted herself to the Regulations of the University and that fair hearing is intrinsic to Exhibit 25 which was the letter conveying approval of the one year leave of absence after sabbatical leave. He went on to say that page 48 of Exhibit 25 does not apply to the case of the respondent which deals with disciplinary proceedings when an allegation of acts of misconduct or general inefficiency against a member of staff is in issue and that misconduct in accordance with paragraph 8.1.2 of Exhibit 25 is a specific

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act of wrong doing which is susceptible to investigation. Learned counsel argued that there was nothing to investigate about the action of the respondent since she admitted on oath that she failed to return to her duty post after one year leave of absence after completing the sabbatical leave. Learned counsel therefore submitted that the respondent was not denied fair hearing.

On whether there was acquiescence on the part of the appellants to the four months unilateral extension by the respondent which estopped the appellants, learned counsel argued that the doctrine of estoppel by conduct was not applicable against the appellants. He therefore urged this Court to allow the appeal as Professor Oyewole’s case was distinguishable from the appellant’s case.

Learned senior counsel for the respondent submitted that the Court below did a better job of evaluating and considering the totality of the evidence proffered by the parties at the trial and came to a proper conclusion that the respondent’s case was more probable and more credible than the appellant’s case.

This appeal turns substantially on the receipt or non-receipt of a letter said to have

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been written on 25/3/99 by the appellants and mailed to the respondent in her overseas address which the respondent denied receiving. Section 167 Evidence Act states that: –

“167 The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case”

In Ogbuanyiya v. Okudo (No. 2) (1990) 4 NWLR (pt. 146) 551 the issue before the Supreme Court was whether the Court of Appeal on the evidence before it was entitled to presume in the absence of the Writ of Summons, the existence of a Writ of Summons signed by a Judge which commenced the action in this case. This Court relying on Sections 148(c) and 149(1) of the Evidence Act (now Sections 167(c) and 168(1) Evidence Act 2011 while agreeing with the Court of Appeal that where a plaintiff has done all that is required of him in law to commence an action, he cannot be held responsible for every other failure attributable to official negligence. This Court went on to say that the Court is bound to draw the inference where

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there is no evidence to the contrary, and further added that there is also the presumption that where there is no evidence to the contrary things are presumed to have been rightly and properly done which is expressed in the common law maxim in latin omnia praesumuntur vite esse acta. There is presumption that where a letter has been properly addressed and mailed, the letter will be presumed to have been received by the addressee. See: Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188; Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356.

When the respondent testified as plaintiff, she stated that it was after she returned from the U.K. that she received Exhibits 9 and 10 conveying approval for sabbatical leave dated 27/2/97 and the approval for one year leave of absence with reference No. UI/SSE/PF/1818. At page 42 lines 11 – 15 she stated: –

“I received the two letters in my pigeon hole in September 1999 at the University of Ilorin after I had returned from the U.K. When I was in London I did not receive any correspondence from the defendants”.

In her evidence under cross-examination, Mrs. Modupe Olulade who testified as DW1 admitted that she did not send Fax

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or Courier to the respondent. When she was asked the question- “Between March and September 1999 there was no communication to plaintiff by the University” Her reply was “yes”. (See page 56 lines 27- 29 of the record of appeal).

Having admitted that between March and September 1999 there was no communication to plaintiff by the University and the respondent’s evidence that it was when she returned from the U.K. in September 1999 that she received Exhibits 9 and 10 the burden of proving that the letter written on 25/3/99 refusing to grant the 4 months extension was received by the respondent in her U.K. address rested with the appellants See: Section 136(1) Evidence Act which provides that: –

“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”.

The Court below was perfectly right in analyzing the evidence adduced before the trial Court and arriving at the Conclusion that- “… the burden on the respondents to

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establish their claim that they did reach her with Exhibit 26, involved a more decisive factor than the burden on the appellant to establish her claim that Exhibit 19 emanated from the respondents. The failure by the respondents to establish their own claim that the (sic) communicated Exhibit 26 to the appellant, on the other hand would be more fatal to their defence and, considering the circumstances, form a solid prop for the appellant’s case. They had the duty of communicating their refusal to her, otherwise their silence, coupled with other conduct on their part, could be construed as tacit approval of her application for extension, in which case the question whether or not they wrote Exhibit 19 would pale into insignificance”.

Having settled the issue of the non-receipt of Exhibit 26 by the respondent there is a strong presumption that the 4 months extension she applied for was granted by the appellants. Even after the respondent returned from her studies abroad, on resumption of duty, she wrote a letter of notification to the Registrar through her head of Department. Learned counsel for the appellants has argued that the respondent did not visit the

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Vice-Chancellor or the Registrar when she returned on 16/8/99. This submission cannot be taken seriously because the evidence of her resumption has to be through official communication which she did.

The lower Court properly invoked estoppel by conduct in favour of the respondent as stipulated by Section 169 (formerly S. 151) Evidence Act. Although Exhibit 25 which is the revised regulations governing the conditions of service of Senior Staff of the University of Ilorin provides for termination of appointment since there is evidence that the respondent is a Senior Staff of University of Ilorin, her employment could not be treated as a mere master and servant relationship whereby her services could be dispensed with at will. See: Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. It ought to have gone through the same disciplinary procedure that was adopted in the case of Professor S. O. Oyewole who overstayed his leave of absence by over 10 months as revealed in Exhibit 27 and 27A. He was queried and given an opportunity to defend himself. In the case of the respondent, she was not given fair hearing. Learned counsel for the appellant conceded

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the point that Exhibits 20 and 20A did not emanate from the Council of the University of Ilorin; Consequently, the Appointments and Promotion Committee of the University of Ilorin acted ultra vires in holding that the respondent voluntarily terminated her own appointment with the University. The lower Court rightly declared the letter reference UI/SSE/PE/1818 of 22 September, 1999 purporting that the respondent (plaintiff) had voluntarily terminated her appointment with the first appellant (defendant) with effect from 17 April, 1999 is ultra vires null and void and of no effect whatsoever.

I find that this appeal is totally devoid of any merits and it is accordingly dismissed. I further affirm the judgment of the lower Court delivered on 10 March, 2005 which ordered the respondents (now appellants) to reinstate and restore the plaintiff to her post as a lecturer and Reader in the Department of Guidance and Counselling of the University and to restore to her all rights, entitlements and other perquisites of that office and to pay to the plaintiff all her salaries, allowances and other entitlements from September, 1999 to date. For the avoidance of any

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doubt, the plaintiff is still in the service of the University of Ilorin.

I assess the cost of this needless and vexatious litigation forced upon the respondent at N500,000.00 in favour of the respondent and against the appellants.

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SC.35/2006