DR. AJEWUNMI BILI RAJI v. OBAFEMI AWOLOWO UNIVERSITY CITATION: (2014) LPELR-22088(CA)

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2 1 DR. AJEWUNMI BILI RAJI v. OBAFEMI AWOLOWO UNIVERSITY CITATION: (2014) LPELR-22088(CA) In The Court of Appeal (Akure Judicial Division) On Friday, the 24th day of January, 2014 Suit No: CA/AK/109/2011 Before Their Lordships SOTONYE DENTON WEST MOJEED ADEKUNLE OWOADE CORDELIA IFEOMA JOMBO-OFO Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Between DR. AJEWUNMI BILI RAJI Appellant And OBAFEMI AWOLOWO UNIVERSITY Respondent RATIO DECIDENDI

3 2 1 WORDS AND PHRASES - "PROBATION": The meaning of the word "probation" "The 7th Edition of the Oxford advanced Learner's Dictionary at page 1156 says inter alia that the word 'probation' means (2) a time of training and testing when you start a new job to see if you are suitable for the work: a period of probation." Per OWOADE, J.C.A. (P. 41, paras. B-C) - read in context 2 WORDS AND PHRASES - "PROBATIONARY EMPLOYEE": The meaning of phrase "probationary employee" "Similarly, the 8th Edition of the Black's Law Dictionary at page 564 says of 'probationary employee' - A recently hired employee whose ability and performance are being evaluated during a trial period of employment". It would be seen therefore that a document such as Exhibit A or Exhibit B does not specifically have to mention the word probation to be able to deduce that any period of testing, evaluation or trial period of employment is grammatically a probation period in the employment. Accordingly, learned counsel for the Appellant was right when he said that "the phrase that the appointment "shall be initially for three years" means a probationary period of three years. I do not have any doubt therefore that by a proper and holistic

4 construction of Exhibit B read along with Exhibit A, the Appellant's contract of service dictates a probationary period of 3 years." Per OWOADE, J.C.A. (P. 41 paras. C-G) - read in context 3 3 EVIDENCE - ADMISSION: Whether a party can be deemed to admit a fact which has no foundation in law or in fact "In any event as it is the case that a party could not be deemed to have admitted a fact which has no foundation in law or in fact, so it is that a party to a proceeding is not under any legal obligation to react to a deposition in an affidavit which is valueless or baseless in that it has no foundation whatsoever in law or in fact. See Niki Tobi JSC in Odutola V. Paper sack Nig. Ltd. (2006) 18 NWLR (Pt. 1012) 470." Per OWOADE, J.C.A. (P. 49, paras. C-D) - read in context 4 LABOUR LAW - CONTRACT OF SERVICE: The importance of terms and conditions of contract of service in an action where the issue of wrongful termination of employment calls for determination "...the terms and conditions of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination." See: Nitel Plc. v.

5 Akwa (2006) 2 NWLR (Pt. 964) 391; Nigerian Gas Co. Ltd. v. Dudusola (2005) 18 NWLR (Pt.957) 292; Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356." Per OWOADE, J.C.A. (P. 37, paras. E-F) - read in context 5 LABOUR LAW - DEEMED CONFIRMATION OF APPOINTMENT: Whether an employer can be deemed to have confirmed the appointment of an employee where the employer fails to confirm or terminate an employer's probationary appointment but keeps him in his employment and continuing to pay him months after the probationary period had expired "However, the principle of "deemed confirmation of appointment" which was applied by the Court of Appeal in the OAU V. Onabanjo's case (Supra) is as good now as it was then. His Lordship, Akpabio JCA supported the leading judgment of his learned brother Mustapha Adebayo Akanbi JCA in the case of OAU V. Dr. Kola Onabanjo (supra) and had this to say at page 570: "The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent's probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation 4

6 of law to have confirmed his appointment, and the doctrine of "estoppel by conduct" would operate to prevent the appellant, from alleging and treating him as if he was still on probation. "Delay defeats equity." Earlier on in the OAU V. Onabanjo's case (Supra) Mustapha Akanbi JCA himself (as he then was) had this to say at page 566. "It is evident from the above that if at the end of three years no re-appointment is offered and accepted, that will normally be the end of the appointment. But it would appear for all practical purposes in this case that the appellant related with the respondent as if the contract between them was still subsisting and had not lapsed. In those circumstances, can it be said that the respondent had not been led into believing that he had been re-appointed or that his appointment had not been confirmed? Unfortunately, there appears to be no clear cut provision in the conditions of appointment for the situation that had developed in this case. However, I repeat, what I said before that while the probationary appointment subsisted or soon after it came to an end notice could have been given. If that had been done, the appellant would have known his position, would perhaps have decided to pack out bag and baggage and probably take some positive steps to find alternative employment elsewhere and not be left high and dry. Allowing him to continue to 5

7 work and earn his salary, gave the impression that he was in for another term of office, as an officer who has satisfactorily completed his probationary period and has been re-appointed." The learned jurist continued still at page 566. "Clearly, on the authorities no term will be implied in a contract unless there are grounds for doing so, and it is on that basis I approach the submission that the parties have manifested by their conduct that respondent's appointment had been reviewed and renewed and he is now a confirmed officer. I think the principle of estoppel by conduct can rightly be founded upon in this case, having regard to all the facts I have highlighted above." Per OWOADE, J.C.A. (Pp , paras. D-C) - read in context 6 ADMINISTRATIVE LAW - DELEGATION OF AUTHORITY: Whether where there are provisions for the delegation of power or that power is delegable by the appropriate authority, it is necessary for the delegatee of power to show its authority "if there are provisions for the delegation of power or that power is delegable by the appropriate authority, in all such cases, the delegatee of power must show its authority or directive by the delegator. See Anya V. Iyayi (1993) 7 NWLR (Pt. 305) at 316, Are V. Adisa (1967) 1 All NLR 148." Per OWOADE, J.C.A. 6

8 (P. 62, paras. C-E) - read in context 7 EVIDENCE - ESTOPPEL BY CONDUCT: The principles of estoppel by conduct "This position of the law is based on the doctrine of Estoppel as propounded and given a new lease of life by Lord Denning, M.R (as he then was) in the leading case of Central London Property Trust Ltd. V. High Trees House Ltd. (1947) K.B. 130 (Popularly referred to as the High Trees case. The principle was also re-stated by Denning L.J. in the later case of Combe V. Combe (1951) 1 All E.R, 767 and incorporated into Section 151 of the Evidence Act Cap. 112 L.F.N (now Section 169 Evidence Act 2011). "When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person's representative in interest, to deny the truth of that thing." The Respondent is accordingly estopped from its conduct to deny the re-appointment of the Appellant under clause 2.12 of Exhibit B. In the case of Temco Eng. & Co. Ltd. V. S.B.N. Ltd. (1995) 5 NWLR (Part 307) 607 at 625 the Court held: "It is a rule 7

9 of Universal Law that if a man either by word or conduct has intimated that he consent to act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given his conduct." See also, Ladipo Akanni V. Adedeji Makanju (1978) 11 SC 13 at 26, Morayo V. Okiade (1942) 8 WACA 46 at 47 and Caincross V. Lovimer (1860) 3 L.T. 130." Per OWOADE, J.C.A. (Pp , paras. F-A) - read in context 8 EVIDENCE - ESTOPPEL BY CONDUCT: The effect where person so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts "In all of these, the Court of Appeal in the OAU V. Dr. Kola Onabanjo's case (Supra) relied on the earlier Supreme Court decision in Joe Iga V. Ezekiel Amakiri & Ors. (1976) II SC. 1 at page where the following inter alia appears: "...If a man whatever his real meaning may be, so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true misrepresentation; that the latter was intended to act upon it in a 8

10 particular way; and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented." See also Casir V. London North Western Railway Co. (1975) L.R. 10 C.P. 307." More recently, the Supreme Court elucidated on the principle of estoppel by conduct in the case of Chukwuma V. Ifeloye (2008) 18 NWLR (Pt. 118) 204 at as follows: "Where a person or one by, words and or deed or conduct made to another a clear and unequivocal representation of fact either with knowledge of its false hood or with the intention that it should be acted upon, or has conducted himself that another would, as a reasonable man with his full faculties, intended to be acted upon, and that other person in fact acted upon the representation whereby his position was thereby altered to his detriment an estoppel arises against that person who made it and he will not be allowed to say that the representation is not what he presented it to be. This is known as estoppel by conduct or estoppel in pais. In other words, where one by his words or conduct will fully causes another to believe the existence of certain state of things and induces him to act on the belief so as to alter his own previous position, the former is precluded from asserting against the latter a different state of things as existing at the same time Ige V. Amakiri (1976) 11 SC. 1; Ude V. Nwara 9

11 (1993) 2 NWLR (Pt. 583) 509; Ude V. Osuji (1990) 5 NWLR (Pt. 151) 488; Nsirim V. Nsirim (2002) 3 NWLR (Pt. 755) " Per OWOADE, J.C.A. (Pp , paras. C-F) - read in context 9 PRACTICE AND PROCEDURE - FILING OF FURTHER AFFIDAVIT: Whether filing of further affidavit by a party after the submission of written addresses is incompetent and amounts to abuse of process "First, there is nothing in the provision of Order 26 Rule 3 and 5 of the Federal High court (Civil Procedure) Rules 2009 to suggest that the filing of the further affidavit by the Plaintiff Appellant even after the submission of written addresses by counsel is prohibited. Order 26 Rule 3 and 5 of the Federal High Court (Civil Procedure) Rules 2009 read thus. "(3) Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and such motion shall be filed along with a written address. (5) A party on whom a motion has been served as per the preceding rules of this order and who intends to reply may be by filing his written address in reply along with a counter affidavit if he so wishes and shall do so, not later than seven days from the service of the motion on him. Secondly, and in further answer to the learned counsel for the Respondent, a Court 10

12 process which is not frivolous or reckless and supported by law will not amount to abuse of process. See: Opekun V. Sadiq (2003) 5 NWLR (Pt.841) 475. A.N.P.P. V. Haruna (2003) 14 NWLR (Pt. 841) 564." Per OWOADE, J.C.A. (Pp , paras. C-A) - read in context 10 PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Whether it is proper for a respondent to raise preliminary objection in his reply brief to an issue raised by an appellant without prior notice to the court of the said preliminary objection "First, Learned counsel for the Respondent in the instant case raised a preliminary objection to the hearing of the appellant's Issue No. 4 in his brief of argument without prior notice of the said preliminary objection in accordance with the provision of Order 10 Rule (1) of the Court of Appeal Rules This practice is wrong and unacceptable and makes the preliminary objection to be liable to be discountenanced or struck out. This is because, by the provision of Order 10 rule (1) of the Court of Appeal Rules 2007 (now 2011), a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof setting out the grounds of objection..." See Uba V. Etiaba & 653 Ors. 11

13 (2008) 6 NWLR (Pt. 1082) 154 at " Per OWOADE, J.C.A. (P. 61, paras. B-F) - read in context 11 COURT - RAISING ISSUE SUO MOTU: Whether a judge can, whenever he raises a matter suo motu, give a decision in the matter without hearing from the parties "In Udogu & Ors. Vs. Egwuatu & Anor (1994) 3 NWLR (Pt. 330) 120 at 122 this Court, per Niki Tobi JCA (as he then was) held as follows: "There is a long line of decisions that a trial judge cannot give a decision in a matter without hearing from the parties. It cannot raise issues suo moto and resolve same suo motu. Our adversary system of adjudication does not allow him to do so. The parties must be heard as they have a right to be heard. Apart from this common law position of the law, section 33 of the 1979 constitution provides for fair hearing of matters before the courts. And one fundamental principle of fair hearing is that the parties be given equal opportunity to present their case to the Court for adjudication. The Constitution of the land does not expect less. A trial judge who raises an issue suo motu and resolves it suo motu does so without jurisdiction. See Adejumo V. David Hughes and Co. Ltd. (1989) 5 NWLR (Pt. 120) 146, Brown V. Adebanjo (1986) 1 NWLR (Pt. 16) 383, Fulani v. Idi (1990) 5 12

14 NWLR (Pt. 150) 311, Adekunle V. University of Port Harcourt (1991) 3 NWLR (Pt. 181) 543. M.I.A & Sons Ltd. V. F.H.A. (1991) 8 NWLR (Pt. 209) 295." Per OWOADE, J.C.A. (Pp , paras. D-B) - read in context 12 INTERPRETATION OF DOCUMENT - RULE OF CONSTRUCTION OF DOCUMENT: The applicable fundamental rule of construction of instrument, document or agreement "It is a fundamental rule of construction of instrument, document or agreement, that its several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict with their natural meaning. The best construction of deeds is to make one part of the deed expound the other, and so make all the parts agree. Thus, in interpreting a document, due regard must be given to the entire document so as to find out the correct meaning of the word in relation to the agreement or other instruments. Martin Schroeder & Co. V. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) 1, Altra Industries (Nig.) Ltd. v. Nigerian Bank for Commerce and Industry (1998) 4 NWLR (Pt. 546) 357; Unilife Dev. Co. Ltd. V. Adeshigbin (2001) 4 NWLR (Pt. 704) 609; Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377." Per OWOADE, J.C.A. (Pp , paras. G-C) - read in context 13

15 14 13 INTERPRETATION OF STATUTE - RULE OF INTERPRETATION OF STATUTE: The approaches of courts in ascertaining the plain meaning and intention of a statute when interpreting "This is because in ascertaining the plain meaning of the statute, the Court must look to the particular statutory language at issue as well as the language and design of the statute as a whole. See e.g. Kennedy J. in K. Mart Corp. V. Cartier Inc. 486 US 281, 291 (1988). Sir Edward Coke explained the canon in 1628: "It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for what best expressed the meaning of the makers" Coke added; "if any Section (of a law) be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with other sections, and finding out the sense of one clause by the words or obvious intent of the other" See: Coke, First Part of the Institutes of the Laws of England at 381a. In Mcculloch V. Maryland 17 us (4 Wheat) 316 (1819) (per Marshall, C.J.) Chief Justice Marshall rightly called for "a fair construction of the whole instrument." Also, in the case of United Sav. Ass'n of Tex V. Timbers of Inwood Assoc. Ltd. 484 U.S. 365, 371 (1988) (Per Scalia, J,) the Supreme Court

16 of the United States has said that statutory construction is a 'holistic' endeavour, and the same is true of construing any document." Per OWOADE, J.C.A. (Pp , paras. G-F) - read in context 15 MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Babs O. Kuewumi of the Federal High Court, holden at Osogbo, Osun State delivered on the 22nd day of June, The appellant as plaintiff before the High Court commenced this action by an originating summons dated 15/12/2010 against the Respondent for the determination of the following questions. 1. Whether the Plaintiff's appointment was not confirmed by the Defendant after the probationary period of 3 years. 2. Whether the purported termination of the Plaintiff's appointment by the Defendant's letter of August 27, 2010 is illegal, null and void. The appellant sought the following reliefs: (a) A declaration that the decision of the Defendant taken at its meeting of July 12, 2010 not to confirm the appointment of the Plaintiff is illegal, null and void and of no effect whatsoever. (b) A Declaration that the Defendant's termination of the plaintiff's appointment with effect from 1st

17 December 2010 as conveyed by a letter titled "Re: Confirmation of Appointment" dated 27th August 2010 is illegal, null and void and of no effect whatsoever. (c) An order of perpetual injunction restraining the Defendant its officials, agents, privies and servants from acting on the contents of its letter of August 27, 2010 in any manner whatsoever. (d) An order directing the Defendant to pay to the Plaintiff his outstanding salaries and allowances since December 1, The appellant's case is that he was employed as a reader (Associate Professor) by the Respondent by a letter dated March 1, Exhibit A and that upon assumption of duty on March 22, 2007 the Respondent gave him conditions of service, Exhibit B. The appellant claimed that even though his 3 year probationary period ended on March 21, 2010 the Respondent allowed him to continue teaching students up till the time of instituting the suit. That, on 30th November 2010, he (the appellant) received a letter dated 27th August 2010 purporting to terminate his appointment (Exhibit C). Thereafter, he instructed his counsel to issue Exhibit D, a pre action notice of 3 months. The Respondent on the other hand claimed that the letter of appointment dated 1st March, Exhibit A does not contain the word "probation". That, it may terminate an appointment in accordance with the terms of the contract of service which as per Exhibit A includes paragraph 5 to the 16

18 effect that "The appointment may be terminated at any time by either party giving three months notice in writing. The case of the parties in the Court below was fought by affidavit evidence, after the exchange of written addresses the learned trial judge found that the appellant (Plaintiff,) has not proved his case as required by law and thereby dismissed the plaintiff (appellant's) claims. Dissatisfied with this judgment, the appellant through his counsel filed a Notice of Appeal containing six (6) grounds of appeal before this Court on 18/7/2011. Appellant's brief of argument dated 25/11/2011 was filed on 28/11/2011 Respondent's brief of argument dated 19/9/2012 and filed on the same date was deemed filed on 14/01/2013. Appellant thereafter filed a reply brief on 29/11/2013. Learned counsel for the appellant nominated four (4) issues for determination. They are: 1. Whether the lower Court was right in upholding the termination of the Appellant on the basis of his letter of appointment (Exhibit A) without reference to the regulations governing the conditions of service of the academic staff of the Respondent (Exhibit B) (Grounds 1 and 2). 2. Whether the Appellant's appointment was not confirmed by the Respondent after the 3 years probationary period since he was encouraged to keep on working and paid for his continuous service (Grounds 3 and 5). 17

19 3. Whether the final determination of this case by the lower Court without hearing parties on the propriety of filing further affidavits does not amount to a denial of fair hearing (Ground 4). 4. Whether the council has the power to delegate the power to determine the Appellant's appointment to the Registrar/Secretary to council or the Appointment and Promotions Committee (Ground 6) Learned counsel for the respondents on the other hand formulated the following issues for determination: 1. Whether the lower Court was right in holding that the termination of the appellant employment on the basis of his letter of appointment is right (Grounds 1 and 2). 2. Whether there was any confirmation of the Appellant's appointment by the respondent after the 3 years period (Grounds 3 and 5). 3. Whether the lower court can act on the further affidavit filed by the Appellant without a written address after the filing of final addresses by the parties (Ground 4). 4. Whether the council has the power to delegate the power to determine the Appellant's appointment to the Registrar/Secretary to the Council or the Appointment and promotion Committee (Ground 6). This appeal will be decided on the issues formulated by the learned counsel for the Appellant. I will however take the liberty to re-arrange the issues as formulated in this order, issue No. 3 which 18

20 touches on fair hearing as I. Issue No. 1 as 2. Issue No. 2 as 3 and Issue No. 4 shall remain as No. 4. The re-arrangement of issues is because an issue relating to fair hearing may or may not turn out to be the determinant issue in an appeal. On Issue 1, learned counsel for the Appellant submitted that the Court below was in grave error when it held at page 54 (paragraph 3) that: "I must establish my displeasure at this practice of chasing each other with further affidavit and further counter affidavit after the filing of final written addresses..." Learned counsel submitted that it is trite law that uncontroverted affidavit evidence is deemed admitted and the Court can rely on same in delivering his judgment. He referred to the case of Sentinel Ass. Co. Ltd. V. S.G.B.N. Ltd. (1992) 2 NWLR (Pt.224) 494 at 503 where Niki Tobi JCA (as he then was) held that a further and better affidavit performs two main functions in the judicial process. First, it provides additional information not available in the first or main affidavit in support of the motion on notice. Second, it provides a reply to a counter affidavit. That, the Court further stated that the law is most elementary that generally a fact not denied is deemed to have been admitted and a court of law is perfectly entitled to admit same without much ado. Counsel referred further to the cases of Azeez v. The State (1986) 2 NWLR (Pt. 23) 541 Ejide & Anor. V. Ogunyemi & Ors. Ex parte Ejide (1990) 3 NWLR 19

21 (Pt. 141) 758. Ajomale V. Yaduat and Another (1991) 5 NWLR (Pt. 191) 266. Learned counsel submitted that in the instant appeal, the Plaintiff appellant filed an affidavit in support of its originating summons while the Respondent filed counter affidavit. The counter affidavit of the Respondent raised fresh issues and also denied certain averments in the supporting affidavit of the appellant which the Respondent controverted by filing a further affidavit. Paragraph 5 of the Respondent's counter affidavit denied the fact that the Appellant's appointment was probationary and stated that the Appellant was on a yearly appointment which the Appellant controverted in paragraphs 3 and 4 of its further affidavit. Learned counsel submitted that at the Court below the respondent never complained of having been prejudiced or embarrassed. In any case, the further affidavits were before the court being part of the record of the Court, the Court could not have ignored them. Learned counsel referred to the case of Udogu & Ors. v. Egwuatu & Anor. (1994) 3 NWLR (Pt. 330) 120 at 122 and said that the issue of the propriety of filing further affidavits after the filing of final addresses was raised suo motu and resolved by the Court below without hearing the parties and in violation of the fundamental rights of the parties. Learned counsel submitted that the refusal of the lower Court to entertain submission of counsel on the propriety of filing further affidavits before ruling on the propriety of filing further affidavits in 20

22 its final judgment constitutes a denial of the Appellant's right to fair hearing as enshrined in Section 36 of the 1999 constitution as amended and Article 7 of the African Charter of Human and Peoples Rights (Cap 10) 1990 LFN. Learned counsel submitted further that in the instant appeal, the learned trial judge determined the case of the Appellant without considering his further affidavit and the Exhibits attached thereto even though he observed that same is basically designed to contain additional Statement of facts. Learned counsel submitted that the refusal to entertain arguments on the propriety of filing of further affidavit as well as the non- consideration of same amounts to denial of fair hearing as same would have assisted the Appellant's case. He referred to the case of Carribean Trading and Fidelity Corporation V. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161 at 182 where the Supreme Court held that in our adversary system, appellate courts frown upon trial Courts taking issues suo motu. And even when they do so in compelling circumstances, our natural justice rules and the constitution require that the party who is to be affected or likely to be affected by the issue or issues so raised to be given an opportunity to react one way or the other. Learned counsel submitted that paragraph 5 of the further affidavit of the Appellant (at page 73 of the record) contained the fact that the Appellant was considered for appointment till retiring age, and the said recommendation was attached and marked Exhibit R1. He therefore submitted that the non 21

23 consideration of the further affidavit adversely affected the case of the appellant and urged that issue I be resolved in favour of the Appellant. Learned counsel for the Respondent on the other had submitted that the learned trial Judge by his comments on the filing of further affidavit with Exhibits R1 and R2 by the Plaintiff/Appellant after reply to written addresses and the further Affidavit with Exhibit by the respondent at page 126 of the record does not amount to raising an issue suo motu. Learned counsel argued that what the Learned trial judge did was simply stating the obvious position of the law. Learned counsel submitted that Order 26 Rules 3 and 5 of the Federal High Court (Civil Procedure) Rules, 2009 does not permit the appellant to file further affidavit after he has responded to the counter-affidavit by filing a reply on point of law. He submitted that the filing of a further-affidavit by the Appellant after the filing of a reply on points of law and written address is nothing short of an abuse of Court process. Learned counsel referred to the counter-affidavit together with the Exhibit contained at pages and submitted that the Learned trial Judge could not have even given any recognition to it since it was not supported by a written address as mandatorily required by rules of Court. He submitted that failure to file a written address in support of the said further affidavit in fact makes the further affidavit incompetent and the learned trial judge was right not to have given any 22

24 recognition to the said affidavit. Learned counsel submitted that the authority of Udoji Vs. Egwuatu & Anor. (1994) 3 NWLR (Pt. 336) 120 at 122 does not apply as the further affidavit itself is incompetent and an abuse of Court process and ought to be struck out. On this, counsel referred to the case of Uwaogwugwu Vs. President of the Federation (2007) All FWLR (Pt.358) In his reply brief, learned counsel for the Appellant further replied the Respondent on Issue No. 1. He submitted that it is not the law that a further affidavit cannot be filed after the filing of further affidavit by the Appellant. Neither did the lower court ask parties to address it on the propriety of filing the said further affidavit. That, indeed, when the counsel to the parties adopted their written address before the Court below on the 24th of March, 2011, the said further affidavit was referred to by the Appellant's Counsel. Learned counsel argued that the Court below erred in law when, it, suo motu challenged the filling of the process without affording parties the opportunity to address him on it. More so, that the Respondent never objected to the said further affidavit which was adopted together with the address of the Appellant. That, the learned trial Judge was wrong to have discountenanced the further affidavit filed by the Appellant. Learned counsel for the Appellant submitted that there is nothing under order 26 Rule 3 and 5 of the Federal High Court (Civil Procedure) Rules

25 which prohibits the Appellant from filing further - affidavit. He concluded by referring to the case of Maraya Plastics Ltd. Vs. Inland Bank (Nig) Plc. (2002) 7 NWLR (Pt. 765) 109 at 117 that the filing of further affidavit upon being served counter-affidavit is a requirement of the law and that case law equally supports that practice. In deciding Appellant's Issue I, I must observe that none of the submissions of the learned counsel for the Respondent derogates, contradicts or provides an answer to the point made by the learned counsel for the Appellant that the learned trial Judge was in error when he made pronouncements on the filing of the further affidavits by the parties in his judgment without affording the parties the opportunity during trial to address him on the propriety or otherwise of filing further affidavits simultaneously and/or after the Plaintiff/Appellant had filed a reply on points of law at the trial. The Plaintiff Appellant filed a further affidavit along with his Reply on points of law where in particular he deposed to the fact in paragraph 5 thereof that "the Appellant was considered for appointment till retiring age" and the said recommendation was attached as Exhibit R1. The learned counsel for the respondent neither objected to the filing of the further affidavit nor the timing by the Plaintiff Appellant. Rather, to show that the Respondent was not opposed to the procedure adopted by the Plaintiff Appellant, the Respondent also filed a further affidavit and 24

26 attached Exhibit A. Whether these further affidavits have been filed regularly or irregularly, the learned trial judge did not invite parties to address him on the propriety of the filing of the further affidavits. In other words, everything seemed regular until the learned trial Judge pronounced in his Judgment at page 126 of the record of appeal that: "It is worthy to note that after filing his reply on point of law to the Defendants Written Address in response to Plaintiffs written address, the Plaintiff went ahead to depose to further affidavit of 13 paragraphs and annexed Exhibits R1, Exhibit R2, Exhibit R3 which are documents to the said affidavit on , the Defendant filed a further affidavit of 16 paragraphs and attached Exhibit A as document to it. I must express my displeasure at this practice of chasing each other with further affidavit and further counter-affidavit after the filing of final address. It is trite that affidavit in originating summons proceedings constitute evidence on which the Court is entitled to base its findings. I cannot see why a reply on points of law will give birth to a further affidavit which is basically designed to contain additional facts." The above comments by the learned trial Judge would ordinarily have passed for an obiter dictum in the case, but because the parties, more especially the learned counsel for the Plaintiff/Appellant had assumed everything was regular and perhaps expected a consideration of their further affidavit together with the Exhibits 25

27 attached (R1, R2 and R3) in the consideration of the Plaintiff's Appellants, case, the comment of the learned trial judge at page 126 became unacceptable to them. By that comment, the learned trial judge has technically discountenanced the Plaintiff's Appellant's further affidavit in the consideration of the Appellant's case, even when he had earlier on by his silence during the trial given the impression that "all was well". In these circumstances, the learned counsel for the Appellant was right to have said that the issue of the propriety of filing further affidavits after the filing of final addresses was raised suo motu and resolved by the lower court without hearing the parties. In Udogu & Ors. Vs. Egwuatu & Anor (1994) 3 NWLR (Pt. 330) 120 at 122 this Court, per Niki Tobi JCA (as he then was) held as follows: "There is a long line of decisions that a trial judge cannot give a decision in a matter without hearing from the parties. It cannot raise issues suo moto and resolve same suo motu. Our adversary system of adjudication does not allow him to do so. The parties must be heard as they have a right to be heard. Apart from this common law position of the law, section 33 of the 1979 constitution provides for fair hearing of matters before the courts. And one fundamental principle of fair hearing is that the parties be given equal opportunity to present their case to the Court for 26

28 adjudication. The Constitution of the land does not expect less. A trial judge who raises an issue suo motu and resolves it suo motu does so without jurisdiction. See Adejumo V. David Hughes and Co. Ltd. (1989) 5 NWLR (Pt. 120) 146, Brown V. Adebanjo (1986) 1 NWLR (Pt. 16) 383, Fulani v. Idi (1990) 5 NWLR (Pt. 150) 311, Adekunle V. University of Port Harcourt (1991) 3 NWLR (Pt. 181) 543. M.I.A & Sons Ltd. V. F.H.A. (1991) 8 NWLR (Pt. 209) 295." Learned counsel for the Respondent tried to concern himself with the propriety of the procedure involved at the trial and argued that the further affidavit is incompetent and an abuse of process. First, there is nothing in the provision of Order 26 Rule 3 and 5 of the Federal High court (Civil Procedure) Rules 2009 to suggest that the filing of the further affidavit by the Plaintiff Appellant even after the submission of written addresses by counsel is prohibited. Order 26 Rule 3 and 5 of the Federal High Court (Civil Procedure) Rules 2009 read thus. "(3) Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and such motion shall be filed along with a written address. (5) A party on whom a motion has been served as per the preceding rules of this order and who intends to reply may be by filing his written address in reply along with a counter affidavit if he so wishes and shall do so, not later than seven days from the service of the motion on him. 27

29 Secondly, and in further answer to the learned counsel for the Respondent, a Court process which is not frivolous or reckless and supported by law will not amount to abuse of process. See: Opekun V. Sadiq (2003) 5 NWLR (Pt.841) 475. A.N.P.P. V. Haruna (2003) 14 NWLR (Pt. 841) 564. Thirdly, and in any event, the issue here is not the propriety of filing further affidavits by the parties to this case as the learned counsel for the Respondent would suggest but whether the learned trial judge was not in error in pronouncing on the further affidavits filed by the parties without affording them the opportunity to address him on the point. The learned trial judge was in error to have pronounced on the filing of the further affidavits by the parties without given them the opportunity to address him on the point. Issue No. 1 is resolved in favour of the appellant. On Issue No. 2, learned counsel for the Appellant submitted that the Appellant was appointed a Reader in the Department of Dramatic Arts by a letter dated March (Exhibit A). That, the second paragraph of Exhibit A reads as follows. "The appointment is subject to the laws of the University and to such conditions governing academic appointments generally as have been made or may be made by the council from time to time. The appointment is also subject to the Federal Government Establishment circulars that may be adopted from time to time." Learned counsel submitted that in its judgment, the Lower court rightly stated that the Appellant's 28

30 appointment was regulated by Exhibit A made subject to the Respondent's law and such conditions governing academic appointments generally as might have been made by the Respondent's council. But that, the lower court somersaulted when it limited itself to the consideration of Exhibit A in determining "Whether or not the plaintiff can be terminated (sic) by the Defendant." Learned counsel referred to the decision of this Court in Udoh-Osho v. C.B.N. (2010) Col. 52 W.R.N. pp where it was held thus: "In a written contract of service, the provisions are binding on the parties thereto and it is outside the powers of the Court to look anywhere else for the terms with regard to the termination of contract other than in the written agreement. See Katto V. C.B.N. (1999) 6 NWLR (Pt. 67) page 390, Western Nigerian Development Corporation Ltd. V. Abimbola (1966) 1 All NLR 159. In determining the rights and obligations of the appellant, the terms and conditions stipulated in the first appointment letter will be considered along with the staff manual exhibit P9 and the Pensions Act." Learned Counsel submitted that in restricting himself to the letter of appointment alone the learned trial judge disregarded the issue of confirmation stipulated in the Respondent's conditions of service (Exhibit B). He said, the position of the Lower Court cannot be justified as it is settled that in determining the rights and duties of parties in a contract of 29

31 employment a Court is required to examine the appointment letter and the conditions of service. Applying the facts of the above cited case to the instant appeal, it is submitted that both exhibits A and B were the relevant documents to consider by the lower court in determining the Appellant's appointment. Therefore, the decision of the lower Court that Exhibit A alone constituted the contract of the employment is erroneous in law, perverse and same occasioned a miscarriage of justice. Learned counsel submitted that by failing to consider Exhibit A along with Exhibit B on the issue of the initial 3 years of the Appellant's appointment, the lower Court erroneously held that Exhibit A constitutes the core contract of employment between the Plaintiff appellant and the Respondent. "It is the document that spells out the entitlements of the Plaintiff, the commencement date of the contract and how and when and by who it may be terminated" (See page 127 of the Record). The Appellant, said counsel, stated in paragraphs 3, 5 and 6 (page 5 of the Record) of his affidavit in support of the originating summons that he resumed duty with the Respondents on March 22, 2007 and was allowed to continue to work with the Respondent after March 21, He only received a letter dated August 27, 2010 purporting to terminate his appointment. That, even after the receipt of the letter he worked for the Respondent up to February Learned counsel submitted that the fact deposed to 30

32 by the appellant that he was in the employment of the respondent for over 3 years was not denied by the respondent and same is evident from the record. Learned counsel submitted that, therefore, the lower court having found that the appellant was in the service of the Respondent for over 3 years before his appointment was purportedly terminated ought to have applied Section 2.19 of Exhibit B which states as follows: "Confirmation of an academic appointment to retiring age after the initial period of three years shall be made on the recommendation of the Head of Department through the Faculty Review Panel to the committee that the member of staff concerned has made an effective contribution to teaching and research since first appointment, provided that in exceptional circumstances confirmation in the grade of lecturer may be made on evidence of exceptional teaching ability and experience." Learned counsel submitted that a community reading of Sections 2.12 and 2.19 of Exhibit B shows that the appointment of the Appellant was for an initial period of 3 years and same was confirmed to retiring age after the expiration of the initial 3 year period, the respondent having permitted the appellant to continue working as well as paying him salary. Learned counsel referred to the case of Awolaja V. Seatrade G.B.V. (2002) 4 NWLR (Pt. 758) at P.534 for the point that a document which is contractual in nature may incorporate another document by reference. That, in the instant case, Exhibit "A" 31

33 incorporates Exhibit "B" in paragraph 2 thereof as it provides that the appointment of the Appellant is subject to such conditions governing academic appointments and Exhibit B is the Regulation governing the conditions of service. In fact, said counsel, the appointments and promotions committee of the Respondent considered the recommendation for the confirmation of the appellant to retiring age in line with the provisions of Exhibit "B". That, the learned trial judge fell into grave error when he failed to apply the relevant provisions of Exhibit "B" to the purported termination of the Appellant's appointment. Learned counsel further submitted that Exhibit "A" cannot form the core contract between the Appellant and the Respondent as the provisions of Exhibit A is subject to the provision of Exhibit "B". It is trite law that where the provision of a particular document or statute is made subject to another document or statute, the latter takes precedence. He referred to the case of T.D.E.T.P.R.S. V. Multichoice Nigeria Ltd. (2005) 14 WRN 15. Learned counsel submitted that on the crucial issue of service after the initial 3 year period the lower Court found that "it is not in doubt that the Plaintiff was in the service of the Defendant for over 3 years before his appointment was terminated vide Exhibit "C" (See page 126 of the Record). He submitted that by making a case for the Respondent outside the evidence before the trial 32

34 court, the lower Court misled itself into drawing conclusions which were not supported by the evidence. That, it is trite law that a court cannot set up for parties a case which is different from the one set up by them in their pleadings and evidence. He referred to Ojo-Osagie V. Adouri (1994) 6 NWLR (Pt. 349) 131. Instead of containing itself to the terms of the contract. The lower Court, said counsel, went out of his way to make a case for the Respondent which cannot be justified having regard to the facts of the case. On this, Learned counsel referred to the cases of Olufegba & Ors. V. Abdul Raheem & Ors. (2010) 17 WRN 23 and Paul D. Fubara & Ors. V. Raymond D. Ogola & Ors. (2003) FWLR (Pt. 169) that where the conclusion of the lower Court is not borne out from the record, as in this case, the Court of Appeal is competent to interfere as such conclusion is perverse. Learned counsel submitted that the lower Court failed to appreciate that the contract in question is not a master and servant contract which could be terminated or severed at the slightest convenience of the master without necessarily complying with the strict provisions of the terms or conditions of contract unlike the instant case. That, it is not in dispute that the Respondent is a creation of the Obafemi Awolowo University Act whose terms and conditions of service are made pursuant thereto under the law. Learned counsel submitted further that none of the clauses in the term of contract empowers or 33

35 entitles the Respondent's Registrar to terminate the Appellants employment and any act or action of the Respondent which is not done in compliance with the law or terms of contract made pursuant to the Act is a nullity. That, the Appellant's contract enjoys statutory flavor in view of the Act creating same. He referred to the cases of Eperokun V. University of Lagos (1986) 4 NWLR (Pt.162) 34 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and urged that the issue be resolved in favour of the Appellant. Learned Counsel for the Respondent on the other hand quoted various passages in the judgment of the learned trial judge to show that the learned trial judge actually gave consideration to Exhibit B, though he conceded that the Court placed reliance on Exhibit A in the determination of the Appellant's case. Learned counsel for the Respondent argued that Exhibit B does not support the case of the appellant. He referred to Section of Exhibit B which provides: "Appointment to the grade of Reader, Senior Lecturer, professional Librarian and other equivalent grades of academic staff recognized by the University shall be initially for Three years subject to the conditions stipulated in Sections 2.18 and 2.25 below." Learned counsel argued that Exhibit B empowers the council to terminate appointment in accordance 34

36 with the terms of contract of service as follows: "The council may terminate in accordance with the terms of the contract of service or in exercise of disciplinary control conferred in or by virtue of the Edict, the appointment of a member of the Senior staff whose appointment is temporary, part-time or probationary or who is appointed after or allowed to continue in employment beyond any retiring age prescribed by council, or whose appointment is for a fixed period or not intended to continue until retiring age." Learned counsel submitted that apart from the above provision of Section 2.28 of Exhibit B (conditions of service) there is nothing in Exhibit A (Letter of offer of Appointment) which states that the Appellant is on "probation". He submitted that Exhibit A must be construed in its literal and ordinary meaning. Therefore, the word "probation" which is obviously absent cannot be inferred or imported to Exhibit A as the Appellant herein is attempting to do. The Appellant's appointment is not subject to any probationary period since he was on a yearly appointment. Learned counsel invoked the maxim Expressio Unius Est exclusion alterios meaning that the express mention of one thing presumes the exclusion of another and argued that since Exhibit A did not specifically use the word 'probation' nor state that the Appellant's appointment will be confirmed after a particular period such cannot be included in the construction of the exhibit. Learned counsel for the Appellant in his reply brief further 35

37 submitted that in the case of O.A.U V. Dr. Kola Onabanjo (1991) 5 NWLR (Pt. 193) 549 which the lower court erroneously said was not applicable to this case, the Court of Appeal rightly held that reappointment was offered and accepted by conduct since the Respondent was allowed to remain in service four months after the probationary period of three years. That, since the Appellant was allowed to remain in the service of the Appellant six months after the 3 year probationary period the lower court was patently wrong when it held that the case of OAU V. Onabanjo (Supra) "is not on all fours with the case on hand" Learned counsel submitted that on page 1156 of the Oxford Advanced Learner's Dictionary, the word probation means "a time of training and testing when you start a new job to see if you are suitable for the work". Accordingly, said counsel, the phrase that the appointment "shall be initially for three years" means a probationary period of three years. That, the lower Court therefore fell into grave error when it held that "In the absence of the probationary clause, I am of the humble view that there is no need for confirmation of such appointments unless it is so stated in the contract of employment." In deciding Issue No. 2, the learned trial judge was not only in error in placing undue reliance on Exhibit A in the determination of the appellant's contract of employment with the respondent when Exhibit A in fact incorporated Exhibit B into his terms, but was also wrong to have misconstrued 36

38 the letters and the intent of Exhibit B when he held that Exhibit B does not contain a probationary clause. The Appellant was offered a letter of appointment in terms of Exhibit A on March 1, Paragraph 2 of the said Exhibit 'A' reads thus: "The appointment is subject to the laws of the University and to such conditions governing appointments generally as have been made or may be made by the council from time to time. The appointment is also subject to the Federal Government Establishment circulars that may be adopted by the council from time to time." There is no gainsaying from the above that outside of the "offer of Appointment" as stated in Exhibit A, every other thing relating to the appointment of the appellant including its determination is as recognized by Exhibit A, to be governed by the conditions of service as in Exhibit B. This is because the terms and conditions of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination. See: Nitel Plc. v. Akwa (2006) 2 NWLR (Pt. 964) 391; Nigerian Gas Co. Ltd. v. Dudusola (2005) 18 NWLR (Pt.957) 292; Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356. Now, the relevant provision of the regulations governing conditions of service of Senior Staff of the Respondent (including the appellant) Exhibit B are Sections 2.12, 2.19 and They are reproduced below as follows: " Appointment to the grades of Reader, 37