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University Of Calabar v. Dr. Okon J. Essien (1996) - SC

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University Of Calabar v. Dr. Okon J. Essien (1996) - SC

by PaulPipAr
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University of Calabar


Dr. Okon J. Essien

(1996) LPELR-SC.188/1991;
(1996) 10 NWLR (Pt.477) 225;
icon COURT

Supreme Court

Michael Ekundayo Ogundare, JSC


- Mr. Jimoh-Lasisi.
icon FACT

Dr. Okon Essien (Plaintiff) was a staffer of the Appellant. The Plaintiff who was not satisfied with the condition of the workings at the University (Appellant) wrote some articles in the dailies criticizing the Appellant. The Vice Chancellor got the message and wrote a letter to the Plaintiff asking why he, the Plaintiff, should not be dealt with. The Plaintiff replied to the Vice Chancellors' letter, however, the Vice Chancellor asserted that the Plaintiff was rude and insolent in the replied letter.
The Vice Chancellor allowed the University Council to be aware, and a committee was setup to investigate the Plaintiff. After investigation, the University Council suspended the Plaintiff for three months and demanded that he, the Plaintiff, will be reinstated if the Plaintiff apologises, publicly. The plainti6ff did not apologise and so the Plaintiff was dismissed from service. The Appellant on the termination of the Plaintiff's appointment stopped paying him salary.
The Plaintiff being aggrieved applied to the High Court for redress. The High Court gave judgement in the Appellant's favour. The Plaintiff appealed to the Court of Appeal and judgement was granted in his favour.
The Appellant herein, have now appealed to the Supreme Court.
icon ISSUE

1. Where the parties to this Appeal fought their cases at the trial and the appeal on Exhibit 6, was the Appeal Court in order when they held that the respondent's appointment was regulated by Decree No.1 of 1978 which was neither canvassed nor alluded to by the respondent throughout the trial and the appeal?
2. If the University of Nigeria Act No.1 of 1978 is not applicable to the contract of service between the plaintiff and the defendant (not conceded) is the plaintiff not entitled to a hearing before the termination of his contract?


1. On issue 1, the Supreme Court held for the Appellant, it stated further, "It is precisely what this Court warned against in all these and other cases that the Court below has again done in the cases in hand. It was never plaintiff's cases that his contract of service with the defendant was based on a breach of section 15 (or any other section) of the University of Nigeria Act, 1978. I do not know what cannon of construction would make a statutory provision enacted for the benefit of members of the academic, administrative and technical staff of the University of Nigeria to apply to such members of staff of another independent University without clear provisions in the Act to that effect. I must conclude that the judgment of the Court below, based, as it were, on a purported breach of section 15 of the University of Nigeria Act - a cases not set up by the plaintiff either at the trial or on appeal to the court below - cannot be allowed to stand".

2. The Supreme Court, on issue 2, stated, "By plaintiff's showing, both in his pleadings and evidence, it cannot be said that he was not given a fair hearing. It was the result of the hearing that the council of the University directed him to do certain things before resumption of duty, id est, withdraw his offensive letter and apologise to the Vice-Chancellor for his "acts of gross disrespect and indiscipline" Plaintiff refused to carry out the directive. I do not know what other option the Council had in the circumstances than to terminate his employment if order and good discipline were to prevail among staff and students of the institution."
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On those exceptional circumstances when an appellate Court in its desire to do justice formulates its own issues, it is enjoined, ex debito justitiae, to invite parties before it to address it on such issues it suo motu formulates. On numerous occasions where the Court of Appeal had on its own framed issues for determination not contemplated or canvassed by the parties before it, and proceeded to determine the appeal on the issue as framed by it, the Supreme Court has often deprecated such a course, holding as it were, that such was an unwarranted infraction of the parties "right to fair hearing. - Michael Ekundayo Ogundare, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

It is a cardinal principle of our jurisprudence that where a trial is by pleadings the judgment of the court must be based on the pleadings. It is not the business of the court to make a cases for the parties different from the cases set up by them in their pleadings. - Michael Ekundayo Ogundare, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

A court will not base its decision on matters not pleaded, nor will it exercise a jurisdiction which it does not have in proceedings before it. If it proceeds to do so, its judgment will be void and null. - Abubakar Bashir Wali, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

When a court raises a point suo motu the parties must be given an opportunity to be heard on the point, particularly, the defendant's counsel whose client may suffer punishment as a result of the point raised. - Emmanuel Obioma Ogwuegbu, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

In a civil suit the function of a Judge in this country and other common law jurisdictions is to decide cases on the evidence that the parties think fit to call before it. - Emmanuel Obioma Ogwuegbu, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

In an action where a party seeks for a declaration that the termination of his employment was wrongful, null and void the most fundamental issue to put before the court is the condition of service. The aggrieved party must aver it as a cardinal point in his pleading and adduce evidence before the trial court on non-compliance with the terms of the condition of service in effecting the termination of his employment. If the conditions have been pleaded it is important to plead also that the disciplinary proceedings have not been conducted fairly. The employee may assert that his employer was in breach of his fundamental right to fair hearing. The right to fair hearing is founded mainly and solely on rules of natural justice. - Uthman Mohammed, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

In the same vein, it is not the function of a court of law by its own exercise or ingenuity to supply or imagine evidence or work out the mathematics of arriving at an answer to a cases before it which only admissible evidence tested under a cross-examination could supply. - Anthony Ikechukwu Iguh, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

Accordingly decisions of courts of law must never be founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before them, nor even raised by or for the parties or either of them. - Anthony Ikechukwu Iguh, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

The long and short of the issue, quite clearly is that willful disobedience of lawful and reasonable order of an employer amounts to misconduct which may justify the dismissal or termination of an employee by his employer. As was aptly put by Obaseki, J.S.C. and I agree entirely with him, that the only course of action open to a servant who conceives that he has grown too big to obey his master is clearly to resign his appointment than expose himself to possible instant dismissal or removal from office. - Anthony Ikechukwu Iguh, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)

Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs establish to justify his action is to show that the allegation was disclosed to the employee, that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation. - Anthony Ikechukwu Iguh, JSC. University Of Calabar v. Dr. Okon J. Essien (1996)
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