Office of the Vice-Chancellor: Whether it is an Appointment Governed by Statutory Flavour

CASE TITLE: PROFESSOR IBRAHIM GARBA v. THE GOVERNOR OF KANO STATE VISITOR KANO STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, WUDIL & ORS (2022) LPELR-57540(CA)

JUDGMENT DATE: 20TH MAY, 2022

JUSTICES: ITA GEORGE MBABA, JCA

BOLOUKUROMO MOSES UGO, JCA

USMAN ALHAJI MUSALE, JCA

COURT DIVISION: KANO

PRACTICE AREA: EDUCATION- VICE-CHANCELLOR

FACTS:

The Appellant was appointed as the substantive Vice-Chancellor of the 3rd Respondent (Kano State University of Science and Technology, WUDIL) by the Governor of Kano State (1st Respondent) on 23rd October 2009, for a four-year term. The appointment was subject to renewal, upon good performance, pursuant to Section 16 of the Kano State University of Science and Technology Law, 2000, Law No. 9 of Kano State 2003.

In October 2012, the Governor announced the removal of the Appellant from office, via media – radio, television and newspapers, and announced the 4th Respondent (Professor Umar Garba Dambatta) as the replacement for the Appellant. The removal was allegedly following the recommendation of a visitation panel, which recommended the Appellant’s removal. At this time, the Appellant still had one more year to complete his first term of 4 years. 

The Appellant contended that the removal cannot stand as his appointment enjoyed the statutory flavour. As a result, he instituted an action in the Kano State High Court, wherein he sought, inter alia, declaratory orders that he is still the substantive Vice-Chancellor of the 3rd Respondent and that the appointment and imposition of the 4th Respondent as Vice-Chancellor is null and void ab-initio, being inconsistent with the Kano State University of Science and Technology Law 2000, Law No. 9 of 2003 of Kano State.

He also sought an order of Court directing the specific performance of the residue of the terms of his appointment and directing the 1st, 2nd, 3rd and 5th Respondents to reinstate and allow him back to his office as Vice-Chancellor of the 3rd Respondent, OR in the alternative an order of Court directing the 1st, 2nd, 3rd and 4th Respondents to immediately pay his entitlements for the 1 year remaining as Vice-Chancellor of the 3rd Respondent and for general damages for breach of his contract of employment, assessed at N100,000,000(One Hundred Million Naira Only).

The Appellant admitted appearing before the visitation panel but said that no allegation of misconduct or incompetence was made against him at the panel meeting and no question in line with such allegation was put to him by the visitation panel to elicit his response. 

In its considered judgment, the trial High Court dismissed the suit and held that the Appellant had failed to establish his case to warrant the grant of the reliefs sought. ​

Dissatisfied, the Appellant appealed.

ISSUES: 

The appeal was determined upon consideration of the issues thus:

(1) Whether the trial Court was right to hold that the Appellant was removed from office and had correctly appraised the case of the Appellant when it ruled that the visitation panel recommended the removal of the Appellant as Vice-Chancellor of the University and that any recommendation by the visitation panel for removal of a Vice-Chancellor, which Visitor approves, stands.

(2) Whether the office of Vice-Chancellor of the Kano State University of Science and Technology, enjoys statutory flavour, when it comes to removing the Vice-Chancellor from office.

COUNSEL SUBMISSIONS

Learned Counsel to the Appellant relied on Section 5(3) of the Kano State University of Science and Technology Law, to submit that the appointment of Appellant as Vice-Chancellor, was for a term of 4 years, subject to renewal for a 2nd term, upon good performance. That Section 1(4) of the Schedule III, prescribes how a member of the University Council can be removed by the Visitor of the University, with the exception of the Chancellor and that Section 1(b) or (g) said clearly that the Appellant, being the Vice-Chancellor (along with three other members of Council), cannot be removed under the provisions of Section 1(4) of the Schedule III.

Counsel submitted that a member of the Council of the University could be only be removed from office on grounds of misconduct or inability to perform the functions of his office; that the Council shall make a recommendation to that effect to the Visitor, through the Commissioner for Education and if, after due enquiry, the Visitor approves the recommendation, he may direct the removal of the person in question.

​Thus, Counsel mentioned that a community reading of Section 1(4) of the Schedule III and Section 23(1) of Part 5 of the Law reveals that the discipline of Council members is shared between the two provisions and the trial Court ought to have given effect to them to hold that that the appointment of Appellant was with statutory flavour. 

On the other hand, Learned Counsel to the Respondents argued that the University law does not clothe the appointment of Appellant, as Vice-Chancellor, with statutory flavour. That an employee is said to have statutory flavour when the appointment is protected by statutory or laid down regulations made to govern the procedure for employment and discipline of the employee and any other employment outside that category is governed by the terms under which the parties agreed to. 

Counsel contended that a cursory perusal of the Kano State University of Science and Technology Law, 2000, will reveal that it does not provide for the discipline of the Vice-Chancellor. That all other senior members of staff of the University, other than the Vice-Chancellor, are covered under Section 24(1) of the Kano State University Law, as all the members of the Council of the University can be removed under this Section, with the exclusion of the Vice-Chancellor. That as a result, the appointment of Appellant was without statutory flavour.

DECISION/HELD

Issue 1 was resolved for the Appellant and Issue 2 against him. On the whole, the Court allow the appeal.

RATIOS:

1. EDUCATION- VICE-CHANCELLOR: Whether the office of vice-chancellor of a university enjoys the invocation of the principle of statutory flavor in the event of unlawful removal from the office-

“The controversy, whether the office of the Appellant, as Vice-Chancellor, was one governed by statutory flavour, and the strong argument of the Appellant’s Counsel, and findings of the Learned trial Court, thereon, appeared to me, completely, irrelevant and misplaced in this case. Whereas, the employment of the Appellant as a lecturer or professor in the University (if he was a serving teacher in the University, before his appointment as Vice-Chancellor) remained, as one governed by statutory flavour, and subject to applicable rules and principles for termination of his appointment or removal from service (and which can only be heard and determined by the National Industrial Court, pursuant to the Section 254(c) of the 1999 Constitution, as amended), the office of Vice-Chancellor of University, appears to be a political appointment by the Council and Visitor of the University, governed by the terms of the contract of appointment and at the pleasure of the Visitor of the University and/or the Council of the University. I think such appointment does not require the application of the principles of statutory flavour to bring the contract to an end, as the loss of office of Vice-Chancellor does not terminate the service of the individual as staff of the University, but only marks the end of his tenure as the Vice-Chancellor. He can only claim reparation, if his removal is wrongful, in accordance with the terms of the contract of service. I, therefore, hold that the office of Vice-Chancellor of University cannot and does not enjoy the invocation of the principle of statutory flavour, in the event of unlawful removal from office, being, essentially, a political appointment, at the pleasure of the Council of the University and/or the Visitor of the University.” Per MBABA, J.C.A.