V. Kwara State Polytechnic & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (PJ) (Delivering the Leading Judgment)

The Appellants herein who were lecturers employed by the first Respondent, challenged their dismissal from the service of the 1st Respondent by the 2nd Respondent in their respective writ of summons and statements of claim before the High Court of Kwara State. Their respective suits were consolidated and heard together.

At the end of the trial, the learned trial Judge Folayan J, in a reserved and considered judgment held that the Appellants were wrongfully dismissed from service of the 1st Respondent. However she declined to order for their reinstatement as she awarded three (3) months salaries to each of the Appellants in lieu of notice, and other entitlements (not specified) they are due for as at the time the employment was brought to an end.

The Appellants are not satisfied with the decision of the lower court which was delivered on the 20/02/2012. Being aggrieved, they have brought this appeal through their notice of appeal dated 4th April, 2012 and filed on the 5th of April, 2012. The said notice of appeal at pages 379 – 382 of the printed record of this appeal contains four grounds of appeal which I reproduce hereunder without their particulars as follows:

(1) The learned trial Judge erred in law by holding that the appellants’ appointments are not clothed with statutory flavor and therefore the appellants are not entitled to reinstatement and other prayers contained in the writ of summons and the statements of claim but to Three Months salaries in lieu of notice of termination or appointment.

(2) The learned trial Judge misdirected himself in law by holding that “in the case at hand the claimants employment was an ordinary contract of employment and as can be seen in Chapter 15.1 of Exhibit 6, these claimants are entitled Months’ notice of termination and by implication 3 Months’ salary in lieu of notice because they are wrongfully dismissed.” When from the state of pleadings and evidence the appellants, employment are regulated by the Principal law and subsidiary legislation.

(3) The learned trial Judge erred in law in raising and deciding suo motu and to the prejudice of the appellants the issue of rights of parties to terminate the contract of employment between the appellants and the respondents when the issue of termination of employment was not pleaded and argued before the court.

(4) The decision is against the weight of evidence in respect of the part of the decision complained of.

The Respondents are also dissatisfied with the judgment of the lower court and they have therefore brought a notice of Cross appeal dated 29th October, 2012 and filed on the 30th October, 2012. The notice of Cross appeal contains five grounds of appeal, which are also hereunder reproduced without their particulars, as follows:

(1) The learned Trial Judge erred in law when she failed to uphold the dismissal of the Appellants in line with chapter 11.1 of the condition of service Regulating the Appellants’ employment, after having held in the following passage of her judgment that:

“Looking at the contents of Exhibits D1 – D5 reference made by the Defence counsel to Exhibits D3, D4 and D5 defining without doubt amount to insubordination and foul language if said by an officer to his superior in office. So I totally agree with the learned counsel for defendant that those phrases in Exhibits D3 – D5 amount to foul language and insubordination.”

(2) The learned trial judge erred in law when she failed to understand the case of the Cross Appellants as pleaded, leading to her holding in the following passages of her judgment that:

“Since the long witness of the defendants and they don’t know members of the Editorial board of JACU Bulletin, then their reason for dismissing these claimants must go beyond the fact that they are members of JACU”

AND ALSO THAT: