⦿ CASE SUMMARY OF:
M. O. Eperokun & Ors. v. University of Lagos (1986) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Employment law;
– Administrative law;
– Contract law;
– Sack of appointees;
1. M. O. Eperokun;
2. Prof. J. A. Ekundayo;
3. Prof. C.O. Orangun
1. University of Lagos
(1986) NWLR (Pt. 34) 162;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– G. O. K. Ajayi, SAN.
* FOR THE RESPONDENT
– Chief F.R.A. Williams, SAN.
⦿ FACT (as relating to the issues)
In this appeal the Supreme Court is being asked by the appellants to hold that Olaniyan & Ors. vs. University of Lagos (1985) 2 N.W.L. R. (Pt. 9) 599 was correctly decided and that consequently, the facts in that case being admittedly on all fours (with but one slight variation) with those in the instant case, our judgment in this case should go the way Olaniyan went. For the respondent we are asked to hold that OLANIYAN was decided per in curiam and that this being a full court, we should overrule the said case and uphold the decisions of the two lower courts.
The plaintiff (now Respondent) claims against the defendants (now Appellants):
(1) a declaration that the appointment of each of the defendants as Registrar (in the case of the 1st defendant) or Professor (in the case of the 2nd and 3rd defendants) has been determined with effect from 1st January, 1981;
(2) An injunction restraining the defendants by themselves or their servants or agents from holding themselves out as or performing any of the functions of the Registrar of, or a Professor in the University of Lagos save with the consent of the plaintiff, and (3) an injunction restraining each of the defendants from occupying the quarters allocated to him by the plaintiff.
The parties having joined issue, the appellants counter-claimed thus: Whereof the defendants seek the following reliefs by way of counter-claims:
(i) In respect of the 1st defendant: (a) A Declaration that the 1st defendant is Registrar and Secretary of the Council of the plaintiff and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 as amended. (b) A Mandatory Injunction compelling the plaintiff to restore the 1st defendant to his post and positions aforesaid and to all the rights and privileges attached thereto.
(ii) In respect of the 2nd defendant: (a) A Declaration that the 2nd defendant is Professor of Biology and Dean of the Faculty of Science and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended); (b) A Mandatory Injunction compelling the plaintiff to restore the 2nd defendant to his post and positions aforesaid and to all rights and privileges attached thereto.
(iii) In respect of the 3rd Defendant: (a) A Declaration that the 3rd Defendant is Professor of Structural Engineering and Dean of the Faculty of Engineering and cannot be removed from the said offices except in accordance with the procedure laid down in Section 17 of the University of Lagos Act 1967 (as amended): (b) A Mandatory Injunction compelling the plaintiff to restore the 3rd Defendant to his post and positions aforesaid and to all the rights and privileges attached thereto.
(iv) In respect of all the Defendants: (a) A Declaration that the purported termination of the defendants’ appointments and conveyed in the letters dated the 30th day of December 1980 addressed to them by the plaintiff is ultra vires the plaintiff, contrary to the provisions of Section 17 of the University of Lagos Act 1967as amended and contrary to the principles of natural justice, null and void and of no effect whatsoever; (b) A Declaration that the proceedings and decision of the Council of the Plaintiff held on the 30th of December 1980 wherein it was decided to terminate the appointment of the defendants is null and void and of no effect; (c) An Injunction restraining the Plaintiff, its servants and/or agents from preventing the Defendants from performing the functions and duties of their offices as Registrar and Secretary to the Council of the Plaintiff, Professor of Biology and Dean of the Faculty of Science and Professor of Structural Engineering and Dean of the Faculty of Engineering or from interfering with their enjoyment of the rights, privileges and benefits attached to the said offices.
On 24th January, 1984, Williams J. of the Lagos Judicial Division of the High Court of Lagos State after hearing the two sides in this case upheld the respondent’s claims against the appellants while at the same time dismissing the latter’s counter-claims. The appellants’ appeal against the decision of the High Court was dismissed on 14th January, 1985 by the Court of Appeal and hence this final appeal to this court.
1. Whether in the circumstances disclosed by the evidence, the court of first instance could say that this was a simple case of termination and no more or of removal from office on the ground of alleged misconduct.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENT.
i. The decision in OLANIYAN established that it was removal for misconduct. I am in no doubt that nothing that was said in argument before us has rendered invalid the conclusions in that judgment. Similarly, no ground has been shown why the decision in this case should not have accorded with that reached in the OLANIYAN case. I hold that the provisions of Section 17 of the University of Lagos Act No.3 of 1967 were available to the appellants and it was ULTRA VIRES of the respondent to have sought to terminate the employment of each appellant as it did. I agree with learned counsel for the appellants’ submission that the case here was that of VIRES, that is of administrative law and not of a simple contractual relationship.
⦿ SOME PROVISION(S)
Section 17(1) of the University of Lagos Act 1967 (as amended) No.3 of 1967 reads: “If it appears to the council that there are reasons for believing that the vice-chancellor, the deputy-vice-chancellor, the provost of a college or any other person employed as a member of the academic or administrative staff of the University or a college 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) make arrangements – (ii) for a committee of the senate to investigate the matter, where it relates to any other member of the staff of the University, and to report on it to the senate and to the council; and (c) make arrangements for the person in question or his representative to be afforded an opportunity of appearing before and being beard by the investigating committee with respect to the matter; and if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the directions of the council.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
– Olaniyan v. University of Lagos (1985) 2 NWLR 599;
⦿ NOTABLE DICTA
Speaking for myself, the respondent could not have had a more powerful advocate than the learned Judge. In one breath, the learned Judge unequivocally insisted firstly that the climate for a hearing did not exist, then followed this up by saying that no formal hearing had taken place and delivered the final blow by saying that they had in fact been heard!!! With all due respect to the learned Judge, this was the crux of the case. – Irikefe, JSC. Eperokun v. UNILAG (1986)
The Court does not just for the asking depart from its previous decision. – Obaseki, JSC. Eperokun v. UNILAG (1986)
Any party inviting the court to depart from its previous decision on any matter takes on the onerous task of satisfying the court that that decision was clearly wrong or erroneous in law or that it was given per incuriam or that it has become a vehicle of injustice. – Eperokun v. UNILAG (1986)
In my view, constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the spectre of misconduct hanging over his head without being given an opportunity of clearing his name. – Irikefe, JSC. Eperokun v. UNILAG (1986)
Since the Appellants have been public officers throughout the material time, by virtue of paragraph 2 of the Code of Conduct for Public Officers, they are not entitled to receive the emoluments of any other public office than the offices they have been holding in the University. They are also not entitled to engage or participate in the management or running of any private business or profession or trade. In effect the Appellants have no right to receive double pay, i.e. one pay from the University and the other pay or earning from another public or private sector. Consequently, before the University should pay to the Appellants all their entitlements, the Appellants should account to the University for moneys and other benefits received by them in respect of their outside commitments. – Bello, JSC. Eperokun v. UNILAG (1986)
The power of the University of Lagos to enter into contract was not one granted by the common law. It was granted by the University of Lagos Act (section 4(1)(j) to which the University owes its existence. Being a creature of statute, the University of Lagos must act within the limit of the powers granted it by statute. It cannot by contract set aside, circumvent or out-flank the provisions of the statute. – Obaseki, JSC. Eperokun v. UNILAG (1986)
Where, therefore, it appears to the Council that there are reasons for believing that a member of academic staff, e.g. a Professor, or of administrative staff, the Registrar, should be removed as is evident from the facts of this case, the Council cannot proceed to remove him by terminating his appointment by Instrument in writing and payment of six months salary in lieu of notice without complying with paragraphs (a), (b)(i) and (ii) and (c) of subsection (1) of section 17 of the University of Lagos Act 1967. It cannot be silent on the misconduct and use it as a ground for removing him. Section 17(1) of the Act makes it mandatory on the Council to give notice of those reasons to the person in question. Thus, failures to give reasons for the termination when there are circumstances loudly proclaiming the reasons afford no sanctuary. – Obaseki, JSC. Eperokun v. UNILAG (1986)
One cannot in the interest of, or the plea for certainty persists in error. No system of judicature can be suggested in which occasionally the possibility of error may not arise. The Supreme Court of Nigeria does not enjoy any legal or constitutional immunity from error. But having said this, I must hasten to add that before a decision of this Court can be reconsidered and over-ruled, the court has to be satisfied that the decision is erroneous otherwise the best policy is stare decisis et non quieta movere (to stand by the decision and not to disturb settled points),. otherwise again little respect will be paid to our judgments if we overthrow that one day which we resolved the day before. – Oputa, JSC. Eperokun v. UNILAG (1986)
Standing by a previous decision which has not been proved to be perverse, or to have been decided per incuriam, or proved to be faulty legally or procedurally has a lot of advantages. It fosters stability and enhances the development of a consistent and coherent body of law. In addition, it preserves continuity and manifest respect for the past. It also assures equality of treatment for litigants similarly situated. It likewise spares the Judges the task of re-examining rules of law, or principles, with each succeeding case, and finally it affords the law a desirable measure of predictability. I have looked at both sides of the coin the credit as well as the debit sides of the account. – Oputa, JSC. Eperokun v. UNILAG (1986)
Without a known fact, (or fact as found) it is impossible to know the law on that fact. It is true that the final decision of the court should be a decision according to law; but it is also true that the facts form the basis upon which the law can apply or be applied. A trial Judge would therefore fail short of his duties if he did not first find the facts, then draw from those facts as found conclusions or inferences of fact before applying the law. – Oputa, JSC. Eperokun v. UNILAG (1986)