KULU v. CAC & ANOR (2020)

KULU v. CAC & ANOR

(2020)LCN/14173(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/A/173/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HAJIYA HAUWA KULU APPELANT(S)

And

1. CORPORATE AFFAIRS COMMISSION 2. REGISTRAR- GENERAL CORPORATE AFFAIRS COMMISSION RESPONDENT(S)

RATIO

WHETHER OR NOT AN INCOMPETENT GROUND OF APPEAL AFFECTS ANOTHER COMPETENT GROUND WHEN ARGUED TOGETHER

That the position of the law is that where a ground of appeal is incompetent and it is argued with another ground from which one issue is raised and argued together, the seemingly competent ground is infested and also rendered incompetent and ought to be struck out. He cited the following cases:-
1. TISMIYU V. OLADGUN (2008) 17 NWLR (PT. 1115) 66 AT 92 PARA C;

2. ADEBANJO V. OGUN STATE SPORTS COUNCIL (2005) ALL FWLR (PT. 279) 1319. PER IGE, J.C.A.

FACTORS THAT MUST BE PROVEN BEFORE AN APPELLATE CAN APPLY TO THE APPELLATE COURT TO ASET ASIDE THE FINDINGS OF THE TRIAL COURT

The law is trite on Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts arid that the said Court or Tribunal made improper use of the opportunity of is having seen and heard the witnesses testified before it. It must be proved that the Learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the trial Court or Tribunal actually occasioned a miscarriage of justice.
1. DR. SOGA OGUNDALU V. CHIEF A.E.O. MACJOB (2015) 3 SCNJ 113 AT 124 per RHODES – VIVOUR, JSC,
2. O. A. AKINBADE & ANOR V. AYOADE BABATUNDE (2018) NWLR (PART 1618) 366 AT 387 H – 388 A – D per M. D. MUHAMMAD, JSC.
3.MRS ELIZABETH IRA BAR ZACCALA V. MR KINSLEY EDASA & ANAR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D PER M. D. MUHAMMAD, JSC who said:-
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences.
See Atoyebi & Anor V. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu V. Ajayi (2013) LPELR – 21860 (SC); (2014) 2 NWLR (Pt. 1392) 483. In Nkebisi V. State (2010) 5 NCC 84 at 104: (2010) 5 NWLR (Pt. 1188) 471 this Court held that an appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st respondent’s appeal to the lower Court was on the basis of proper/non-revaluation of documentary evidence. Exhibit A and P.” (underlined mine)
4. SIMON EZECHUKWU & ANOR V. O.C. ONWUKA (2016) 6 SCM 71 AT 85 F – G, 871 – 88 A-C per M. D. MUHAMMAD, JSC. PER IGE, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE APPELLATE TO PLACE ALL RELEVANT DOCUMENTS OR CONTRACTS RELATING TO EMPLOYMENT WHERE THE EMPLOYMENT HAS BEEN WRONGFULLY TERMINATED

It is the bounden duty of the Appellant to place before the Court all relevant documents or contract relating to her employment with the 1st Respondent. It is her duty to lead credible evidence in support of her case, especially where as in this case the Appellant sought for declaratory reliefs. See PATRICK ZIIDEEH V. R.S.C.S.C. (2007) 3 NWLR (PART 1022) 554 AT 570 A – D per MOHAMMED, JSC who said:-
“This is because it has been firmly established that when an employee complains that his employment has been wrongfully terminated he has the onus:
(a) To place before the Court the terms of the contract of employment and:
(b) To prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.”
The right of the parties must be discovered from the four walls of the contract of employment which may be contained in several documents. The employee must prove conclusively the type of employment he falls in amongst three categories of contract of employment. See CBN V. MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 419 A TO 420 A – C per AKINTAN, JSC who said:
“The law is settled that there are now roughly three categories of contracts of employment, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer and those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan V. University of Lagos, supra: Ogunke V. National Steel Development Authority (1974) NWLR 128; Fakuade V. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Ideh V. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bey V. the Federal Public Service (Pt. 265) 303; and Udo V. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.”
On page 433A – E OGBUAGU, JSC also had this to say: –
“It must always be borne in mind end this is also settled firstly that where a contract (which includes contract of employment), involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State V. Atta (1986) 4 NWLR (Pt. 38) 785 C. A. and Leyland (Nig.) Ltd. V. Dizengoff W. A. (1990) 2 NWLR (Pt. 134) 610 at 620. PER IGE, J.C.A.

WHETHER OR NOT WHERE A CONTRACT IS IN WRITING, ANY AGREEMENT WHICH SEEKS TO VARY THE ORIGINAL AGREEMENT MUST ALSO BE IN WRITING
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and, transferring his service from one body to another body. See the cases of John Holt & Co. (Liverpool) Ltd. V. Stephen Late (1938) 15 NLR 14 and Bijou (Nig.) Ltd. V. Osidarohwo (1992) 6 NWL.R (Pt. 249) 643 at 649. Again, a contract which must in law be in writing, can only be varied by an agreement in writing. See the case of Morris V. Baron & Co. (1918) A.C. 1 at 39. Also settled, is that in the interpretation of a contract involving several documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd. & 4 Ors. V. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 669 C.A.” (Underlined mine). PER IGE, J.C.A.

APPOINTMENT WITH STATUTORY FLAVOUR

An appointment with statutory flavor is one in which the terms and conditions of service are exhaustively spelt out in a statute or an Act of parliament. A cursory flip at the condition of service Exhibit D17 would reveal that it is not a statute or an Act of parliament to qualify the Appellant’s appointment as one with statutory flavor. It is not one to entitled the Appellant to the mode of termination of appointment she lays claim to. See F.M.C., Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt. 12865) 411 at 438, E- H. The lower Court emphatically articulated the position of law in its judgment in paragraphs 70,76-78 of the Records of appeal which are reproduced below for clarity, viz;
“70. Now, the authorities are all agreed on the following:
“the fact that on employer is the creation of statute does not elevate its employees to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be predicted for the employment to have statutory flavor where the contract is no question of the contract having statutory flavor; the fact that the other contracting party is the creation of a statute does not make any difference. See for instance, FAKUADE V. OAUTH (1993) 5 NWLR (Pt. 291) 47.
The case of FMC, IDO-EKITI V. OLAJIDE (supra) proceeded to add that for on employment to enjoy the status of statutory flavor, the manner of employment and termination must be specifically provided for in the statute creating the employment. That it is not every appointment in a Federal government agency that is clothed with statutory flavor. The fact that the Federal Government agency is a statutory body does not automatically mean that the conditions of service of its employees must be of special character ruling out the relationship of mere master and servant. It is only when the employment is protected by statute which makes the provisions for the procedure for employment and termination of such employment that it can be said that the employment is clothed with statutory flavor. In fact IMOLOAME V. WAEC (1992) 9 NWLR (Pt. 265) 303 held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also JIRGBAGH V. UBN PLC (2001 ) 2 NWLR (PT. 696) 11 CA; NEPA V. ADESAAJI (2002) 17 NWLR (Pt. 797) 578, CA and ILOABACHIE V. PHILIPS (2002) 14 NWLR (PT 787) 264, CA.” PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was employed on 2nd day of May, 2007 as a Deputy Manager by 1st Respondent by Exhibit C3. The Appellant was later confirmed on the 24th day of November, 2008. She rose to the level of Senior Manager and worked in many departments and was transferred to the 1st Respondent’s office in Lagos. By a letter dated 31/08/16, the Appellant’s Appointment was terminated for disregard to constituted authority and negligence of duty.

The Appellant as CLAIMANT has approached the National Industrial Court of Nigeria Abuja Division on 26th day of September, 2016 claiming against the Respondents as Defendants the following reliefs:-
“The Claimant claims against the Defendants jointly and severally as follows:-
(a) A DECLARATION that the 2nd Defendant lacked the competence to terminate the appointment of the Complainant being a staff on CASS 5-1.
(b) A DECLARATION that the Letter of Termination of Appointment dated 31st August, 2016 signed by S. R. Uba for the 2nd Defendant is null arid void and of no effect whatsoever.
(c) DECLARATION that the Stoppage of the Salaries and

Allowances of the Complainant from October 2015 up to the purported date of Termination of Appointment, without being put on suspension is unconstitutional as the Complainant was not afforded fair hearing as provided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(d) AN ORDER directing the Defendants to re-instate the Complainant to her rank and post.
(e) AN ORDER directing the Defendants to pay the Complainant all her Outstanding Salaries and Allowances from October 2015.
(f) Costs of this action.”

The Respondents filed her Statement of Defence on 2nd day of December, 2016. The Claimant filed a Reply to the Defendant’s Statement of Defence on the 22nd day of March, 2017.

The matter proceeded to trial. At the end of the trial the learned trial Judge gave a considered Judgment on 12th February, 2018. The lower Court found that the 2nd Defendant lacked the competence to terminate the appointment of the Complainant being a staff in CASS 5 – 1. The learned trial Judge concluded as follows:-
“113 In a master, servant relationship such as this instant case, the law is that even when the procedure

is not followed or the action is wrongful, the termination, notwithstanding all that, will still stand on the basis that the Court will not impose an employee on an unwilling employer. See the case of EKUNOLA V. C.B.N. (2013) 15 NWLR (Pt. 1377) 224 at 231 S.C. where the apex Court held that an employer is obliged to follow the right procedure in summarily dismissing his employee. Where an employee‘s dismissal is founded on allegation of gross misconduct, the employee is not entitled to any notice or salary in lieu of Notice. Once a letter of dismissal is served on the employee, he stands effectively dismissed and whether or not the dismissal is wrongful to entitle him to damages is a question for the court to resolve.”
“114. Now, on the question of denial of fair hearing: – In the instant case, I find that by giving the Claimant a query as per Exhibit “C9” and followed by the Claimant’s answer Exhibit “C10” and the convening of various Disciplinary Committees to look into the answer as per Exhibit “D13 and D18”, vis-a-vis the issues raised in the query, and permitting the claimant to address the

Committee, the defendants have effectively afforded given the claimant the requisite opportunity incidental and sufficient to satisfy the labour lay standard of fair hearing being granted the claimant. And in the world of work fair hearing since MR YESUFU AMUDA GARBA & ORS V. UNIVERSITY OF MAIDUGURI (1986) LPELR – 1305 (SC) (1986) 1 NWLR (PT. 18) 550; (1986) ALL NLR 149; (1986) 2 SC 128, resonates as opportunity to be heard. An employee whose employment is terminated on ground of misconduct after being given an opportunity and has replied to a written query regarding the issue forming the basis of his termination cannot complain of lack of fair hearing. GUKAS V. JOS INTERNATIONAL BREWERIES LTD (1991) 6 NWLR (PT. 199) 614; SOGBESAN V. UNIVERSITY OF LAGOS & ORS (2014) 47 NLWR (PT. 153) 346 NIC @ 351 164 IMONIKHE V. UNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 640 referred to U. B. A . PLC V. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 CA . (YUSUF V. U.B.N. (1996) 6 NWLR (PT. 457) referred to) (P.p. 41 – 42 PAPAS H – B) OSUMAH V. E.B. S. (2004) 17 NWLR (PT. 902) 322 referred to] (p. 39, paras E – G) See also REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS

(2017) 14 NWLR (PT. 1 577) 410.
115. Furthermore, the law requires that for a claimant to raise the plea of denial of fair hearing in a labour Court the claimant must have raised the denial in her very first response to the allegation of misconduct See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR (2013) 35 NLLR (PT. 103) 40 NIC; – I find the claimant in the instant case did not raise the question of fair hearing or lack of it in C 10, her response to query, her first response in the disciplinary action, or even in Exhibit D10, the claimants response to the Chairman, Central Disciplinary Committee. Reliefs (c) and (e) have not been substantiated in the instant case, I find and therefore fail.
116. All in all, the claimant’s case succeeds but only this far; reliefs (a) and (b) succeed in part, reliefs (c), (d) and (e) fail.
117. This is the Court’s judgment:
118. It is hereby declared that the 2nd Defendant lacked the competence to terminate the appointment of the Complainant being a staff on CASS 5-1.
119. It is hereby declared that the Letter of

Termination of Appointment dated 31st August, 2016 signed by S. R. Uba for the 2nd Defendant is wrongful and of no effect whatsoever.
120. The defendant shall pay the claimant one month’s salary in lieu of notice guaranteed by their terms of contract.
121. The defendant shall also pay the claimant one month‘s salary as damages for constructive wrongful termination of appointment.
122. The claimant shall pay the claimant her due salaries or entitlement in allowances for the period of October – November 18th, 2015 or where such has indeed directly been paid present to the Chief Registrar of this Court, verifiable evidence of payment having been made to the claimant of her salaries or entitlements in allowances for the period of October 2015 – 18th November 2015.
123. Cost of this suit is placed at N150,000.00 (One Hundred and Fifty Thousand Naira).
124. All sums to be paid within 30 days thereafter 10% interest shall inure.
125. This is the Court’s judgment and it is hereby entered accordingly.
Sgd.
HON. JUSTICE E. N. AGBAKOBA
JUDGE.”

The Appellant was aggrieved by the judgment and has by

its Notice of Appeal dated and filed on the 26th day of February, 2018 appealed to this Court on five grounds which without their particulars are as follows:-
“GROUND ONE
The trial Honourable Court erred in law when it held that;
“for all the reasons and authorities cited, it is difficult to see how the claimant can properly and accurately consider herself as a statutory employee in the manner she did. It is my finding and holding, therefore, that the claimant has not shown to this Court how her employment is one with. statutory flavour. And relief (d) cannot be granted” and the error occasioned miscarriage of justice.
GROUND TWO
The trial Court erred in law when it refused to declare the termination letter null and void after holding that the defendant has not shown the Court the authority or the basis on which the Registrar of the Commission is empowered to terminate the Claimant in direct contravention of the condition of service.
GROUND THREE
The trial Court erred in law when it held that:
“In a master servant relationship such as this instant case, the law is that even when the procedure is

not followed or the action is wrongful, the termination, notwithstanding all that, will still stand”
and that holding occasioned miscarriage of justice
GROUND FOUR
The trial Court erred in law and misdirected itself when it held that,
“In a matter servant relationship such as this, the law is that even when the procedure is not followed or the action is wrongful, the termination, notwithstanding all that, will still stand on the basis that the Court’s will not impose an employee on an unwilling employer.”
GROUND FIVE
The trial Honourable Court erred in law and misdirected itself when it held thus:
“I find that for the claimant to successfully refute the defendant’s contention and argument as to the right to enforce the ‘no work no pay’ rule, the claimant would require to present this Court with irrefutable evidence that she actually worked for the said period under review i.e. October 2015/April 2015 up to the date of Termination” and the holding occasional miscarriage of justice.“

The Appellant’s Brief of Argument dated the 9th day of April, 2018 was filed on

the same day. The Respondent’s Brief of Argument dated the 10th day of July, 2018 was filed on 13th day of July, 2018 but deemed filed on 18th day of February, 2020. The Appellant’s Reply Brief dated the 15th day of February, 2020 was filed on 17th day of February, 2020 but deemed duly filed on 18th day of February, 2020.

The appeal was heard on 18th February, 2020 when the learned Counsel to the parties adopted their Briefs of Argument. The learned Counsel to the Appellant distilled four issues for determination as follows:-
“1ST ISSUE
Whether the proper placement and up-grading of the appellant by the Board at is 52nd meeting held on 24th September, 2010 is not an appointment pursuant to Section 9 of the Companies and Allied Matters Act, 2004 and therefore a statutory appointment.
2ND ISSUE
Whether the lack of authority of the Registrar of the Commission to terminate the appointment of the appellant as provided by the conditions of service does not make his action invalid, null and void.
3RD ISSUE
Whether the appellant was the employee of the Registrar of the commission to ground the principle that the Court will not

impose an employee on an unwilling employer.
4TH ISSUE
Whether the withdrawal of the charge of absconding from duty against the appellant in view of her request for sick leave does not mean that the Respondent agreed that the appellant was sick and therefore entitled to hear salaries and allowances during the period of the sickness.”

The learned Counsel to the Respondent adopted the four issues formulated by the Appellant and the appeal will be considered on the four issues which I will take together.

The learned Counsel to the Appellant FANKLIN P. JINGI, ESQ submits that the proper placement and up-grading of the Appellant by the Board at its 52nd meeting held on 24th September, 2010 is an appointment pursuant to Section 9 of the Company and Allied Matters Act, 2004 and therefore a statutory appointment. The Appellant submits that his employment enjoyed statutory flavours as such the 1st Respondent could not terminate his Appointment. He refers to Sections 2, 8 and 9 of the Companies and Allied Matters Act, 2004. That the discipline of the Appellant must only be done in accordance with the provisions of the Conditions of Service Exhibit “C 14”. That employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute.

That once the statutory provisions are clear as to how to deal with an erring servant, they must be adhered to strictly. He cited the following cases:-
1. PROF. D. J. OLUFEAGBA & 43 ORS V. PROF. SHUAIB OBA ABDUR-RAHEEM & 3 ORS (2009) 18 NWLR (PT. 1173) 384 AT 462 PARASC-G;
2. OLANIYAN V. UNILAG (1985) 2 NWLR (PT. 9) 599;
3. EPEROKUN V. UNILAG (1986) 4 NWLR (PT. 34) 62;
4. GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550.

Learned Counsel submits that the employment between Appellant and 1st Respondent is beyond a master and servant relationship. Counsel therefore argued that the employer is bound to comply with the Conditions of Service when it comes to termination of appointment of the employee; otherwise the act of termination becomes null and void. He cited the following cases:-
1. FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL (1993) 5 NWLR (PT. 291) 47;
2. FEDERAL MEDICAL CENTRE IDO-EKITI V. ALABI (2012) 2 NWLR (PT. 1205) 411 AT 438 PARAS. E AND F.

That by holding that the termination letter has no effect whatsoever, the trial Court should have given an order for the reinstatement of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the Registrar (2nd Respondent) is not the employer of the Appellant to ground the principle that the Court will not impose a servant on an unwilling master or employer even where the employer’s behaviour towards the employee is wrongful.

That the trial Court held that the Registrar had not shown where he got the power to terminate the appointment of the Appellant. And the Registrar did not show that the Appellant is not in the category of the staff that should be disciplined by the board. That the Judgment of the trial Court should be consistent.

On the withdrawing of the charge of absconding from duty against the Appellant in view of her request for sick leave, learned Counsel submits that absence from office was not a ground for the termination of the appointment of the Appellant. That the Defendants stopped the salary and allowances of the Appellant from the 2nd week of November, 2015. That the Appointment of the Appellant was purportedly terminated on 31st of August, 2016.

That since her absence from office was not a ground for the termination of her appointment, it should not be a ground for stoppage of salary and allowances.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the withdrawal of the absconding from duty charge the Appellant automatically falls under the provision of Clause 7:10 that covers staff on sick leave.

That the Disciplinary Committee acknowledged the fact that the Appellant was sick. That the Committee invited the Appellant to appear before it in connection with the case of negligence of duty and absconding from duty and the Appellant responded in a letter stating that she was unwell and will appear when she was physically fit. The invitation was postponed to 9th day of February, 2016, when she appeared before the Committee.

He submitted that this Honouroble Court has the power to make an order for the payment of any outstanding benefits where it finds that the employment with statutory flavour is unlawfully terminated.
He concluded by citing the following cases:
1. UNION BANK LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647;
2. AIYETAN V. NATIONAL INSTITUTE FOR OIL PALM RESEARCH (1987) 3 NWLR (PT. 59) 48;
3. GARBA V. FEDERAL CIVIL SERVICE COMMISSION (1988) 1 NWLR (PART 71) 449;
4. SAPARA V. UNIVERSITY COLLEGE HOSPITAL MANAGEMENT BOARD (1988) 4 NWLR (PT. 86) 58;

to the effect that the Appellant is still in service of the 1st Respondent. He urged this Court to resolve all the issues in favour of the Appellant.

In response, learned Counsel to the Respondents PROF. ANDREW I. CHUKWUEMERIE, SAN submits that the Appellant had not proved that his employment enjoys statutory flavour as proper placement and up-grading of the Appellant by the Board at the 52nd Meeting held on 24th September, 2010 does not translate to a statutory appointment pursuant to Section 9 of the Companies and Allied Matters Act Cap. C 20 LFN, 2004.

The Respondent argued that even if the proper placement and up-grading of the Appellant amounts to appointment pursuant to Section 9 of the Companies and Allied Matter Act Cap. C 20, LFN, 2004, that does not grant the appointment of the Appellant with statutory flavour.

That a brief reading of the provisions of Sections 8 and 9 of CAMA disclose the qualifications and some of the responsibilities of Registrar-General and appointment of other staff of the Commission.

That an appointment with statutory flavour is one in which the terms and conditions of service are provided for in a Statute of an

Act of Parliament. That a routine look in the condition of service as in Exhibit D17 would disclose that the Appellant is not entitled to the mode of termination of appointment she lays claim to. He cited the case of F.M.C IDO – EKITI V. ALABI (2012) 2 NWLR (PT. 12865) 411 AT 438, E-H.

The Respondent also argued that the trial Judge rightly held that the fact that on appointment is pensionable or made by a statutory body does not mean that appointment enjoys statutory protection or is one with statutory flavour. That the claimant has not shown to this Court how her employment is one with statutory flavour. He relied on the case of PIUS A. HUL & 2 ORS V. OLUFUNMILOLA OYELOLA APPEAL NO. CA/A/154/2004.

Counsel further submits that Exhibit C14, Condition of Service provides for disciplinary procedure. That it is in evidence that the procedure was duly followed. That Exhibit D6, a query dated 10th November, 2015 was issued to the Appellant, Exhibit D9, an invitation to appear before the Central Disciplinary Committee dated 1st December, 2015, up to the point she was issued letter of termination of appointment dated 31st August, 2016.

He argued that the Appellant relied on U.T.C.V. NWOKORUKU (1993) 3 NWLR (PT. 281) 295, 309 to buttress the fact that termination of the Appellant’s appointment is void but that the authority is inapplicable because the case dealt with a distinction between wrongful and unlawful dismissal and held that in effect they are the same.

That there is no provision in the Condition of Service excluding the management of the commission when it has the approval of the Minister of Industry, Trade and Investment to discipline a staff on CASS 5 – 1 if there is no Board in place to deal with Appellant and he urged this Court to so hold.

That a minister can act in the place of a Board pending the Constitution of a Board and the Board can always confirm retroactively what was done on its behalf in its absence.

That before the Disciplinary Committee reached its decision, the Appellant had written the Commission and copied the Minister which made the Minister to request an explanation from the Commission. The Commission in answering the query as it were requested the Minister inter alia to allow the Disciplinary Committee to finish its work on the complaints

against the Appellant. That the Disciplinary Committee recommended for the dismissal of the appellant but the management changed the recommendation of dismissal to termination. The Commission submitted its findings to the minister who subsequently approved the termination of the appellant’s appointment.

That the provision of paragraph 4.11 of the condition of service does not rule out completely the management of the commission from initially taking disciplinary action against any staff subject to the commission’s conditions of service.

That the ratification of the appointment of the appellant by the board on 24th September, 2010 had not in any way changed the status of the Appellant’s appointment from an ordinary master and servant or employer and employee to appointment with statutory flavor as the Appellant amorously argued. He urged this Court to hold that such an appointment can be validly terminated. He relied on the following cases:
1. GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550.
2. OLANIYAN V. UNILAG (1985) 2 NWLR (PT. 9) 599.
3. EPEROKUN V. UNILAG (1986) 4 NWLR (PT. 34) 162.

That the cases cited by the Appellant are inapplicable.

That a situation as in the instant case where the Appellant absconded from her duty and failed to render report to the headquarters of the commission for four consecutive months, deserved urgent action without the Board in place.

On whether the withdrawal of the charge of absconding from duty against the Appellant in view of her request for sick leave meant that the respondents agreed that the Appellant was sick and therefore entitled to her salaries and allowance during the period of the sickness, learned counsel submits that absconding from duty is a Gross Misconduct in clause 2.09 of the Commission’s conditions of service, while negligence of Duty and disregard to constituted authority are serious misconducts.

That the three charges of absconding from Duty, Negligence of Duty and Disregard to Constituted Authority were established against the Appellant as per Exhibit D17, and she was recommended for dismissal pursuant to clause 4.09 of the Commission’s Conditions of Service.

That the withdrawal of the charge of absconding from duty alone cannot invalidate the power of the employer

(the Respondents) to terminate the appointment of the employee (Appellant). That this is an ordinary master and servant or employer and employee relationship like this, the employer can terminate the appointment of its employee for good or bad reason or for no reason at all.
He cited the case of B.E.D.C. PLC V. ESEALUKA (2015) 2 NWLR (PT.1444) 411. He urged this Honourable Court to resolve these issues in favour Respondent.

In the Appellant’s Reply Brief, she submitted that the second issue distilled by the Respondents is not framed from any of the five grounds of appeal filed by the appellant. That issue 2 of the Respondents is framed to show the Respondents’ disagreement with the decision of the trial Court that the Registrar- General had no power to terminate her appointments, that it is trite law that the natural role of a respondent in an appeal is to support the judgment which is the subject of appeal. That the respondent is not supposed to attack the judgment except he had filed a cross-appeal. He cited the case of IMONIYAME HOLDINGS LTD & 2 ORS (2010) 4 NWLR (PT 1185) 561 AT 580 PARAS B-E and AT 585 PARA D.

That in formulating issues for determination, a respondent who has not cross-appealed or filed a respondent’s notice must confine himself to the grounds of appeal filed by the appellant. That the Respondents’ issue two did not arise from the notice and grounds of appeal filed by the appellant, and it is thus incompetent and must be struck out. He referred to the following cases:-
1. SIMON NWAGU V. ELDER RUFUS FADIPE (2012) 13 NWLR (PT. 1318) 547 AT PAGE 561 PARAS F-G.
2. OSSAI V. WAKWAH (2006) 4 NWLR (PT. 969) 208;
3. OKOYE V. N.C. & F. CO. LTD. (1991) 6 NWLR (PT.199) 501.

That paragraph 3.01 of the Respondents’ Brief of Argument states:-
3:01 . We seek the leave of your Lordships to argue issues 1 , 2, & 3 together and issue 4 alone.”

ADEBANJO V. OGUN STATE SPORTS COUNCIL (2005) ALL FWLR (PT. 279) 1319.That the Respondents went on an attacking mission when in paragraph 3.16 of their brief of argument submitted thus:-
“3.16. The Judgment of the Court below can only become valid if there had been any evidence showing that the Board was constituted and it took a decision to the contrary i.e. over hiring the decision of the central disciplinary committee and the supervising minister who is also a member of the Board. So such decision has been taken by the Board and the decision of the Court below was hastily and uncalled for.”
He relied on the following cases:-
1. NOSPETCO OIL & GAS LTD. V. OLURUNNIWBE (2012) 10 NWLR (PT.1307) 115;
2. OGUNSOLA V. NICON (2010) 13 NWLR (PT.1211) 225;
3. I. H. LTD. V. SONEB ENT. LTD. (SUPRA) AT 580.She urged this Honourable Court to strike out paragraphs 3.01- 3.27 which are the arguments in respect of issues, 1 2, and 3 formulated by the respondents, having been infested and contaminated by the

incompetent issue two.

He finally urged this Honourable Court to strike out the entire brief of the Respondents as it is a complete misconception of what a respondent’s brief should be in line with the decision of the Supreme Court in the case of THE MINISTER OF PETROLEUM AND MINERAL RESOURCES & 1 OR V. EXPO SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT. 1208) 112 AT 128.

366 AT 387 H – 388 A – D per M. D. MUHAMMAD, JSC.
3.MRS ELIZABETH IRA BAR ZACCALA V. MR KINSLEY EDASA & ANAR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D PER M. D. MUHAMMAD, JSC who said:-
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences.
See Atoyebi & Anor V. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu V. Ajayi (2013) LPELR – 21860 (SC); (2014) 2 NWLR (Pt. 1392) 483. In Nkebisi V. State (2010) 5 NCC 84 at 104: (2010) 5 NWLR (Pt. 1188) 471 this Court held that an appellant who appeals on the

basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st respondent’s appeal to the lower Court was on the basis of proper/non-revaluation of documentary evidence. Exhibit A and P.” (underlined mine)
4. SIMON EZECHUKWU & ANOR V. O.C. ONWUKA (2016) 6 SCM 71 AT 85 F – G, 871 – 88 A-C per M. D. MUHAMMAD, JSC.

The Appellant had contended that her appointment was governed by statute and thus has statutory flavour making it imperative for the Respondent to follow the statutory procedures laid down before her appointment could be brought to an end. The Respondent submitted that the appointment of the Appellant is governed by the common law principle of Master and Servant and that the Appellant’s appointment was properly terminated. It is the bounden duty of the Appellant to place before the Court all relevant documents or contract relating to her employment with the 1st Respondent. It is her duty to lead

credible evidence in support of her case, especially where as in this case the Appellant sought for declaratory reliefs. See PATRICK ZIIDEEH V. R.S.C.S.C. (2007) 3 NWLR (PART 1022) 554 AT 570 A – D per MOHAMMED, JSC who said:-
“This is because it has been firmly established that when an employee complains that his employment has been wrongfully terminated he has the onus:
(a) To place before the Court the terms of the contract of employment and:
(b) To prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.”
The right of the parties must be discovered from the four walls of the contract of employment which may be contained in several documents. The employee must prove conclusively the type of employment he falls in amongst three categories of contract of employment. See CBN V. MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 419 A TO 420 A – C per AKINTAN, JSC who said:
“The law is settled that there are now roughly three categories of contracts of employment, viz:

(a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer and those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan V. University of Lagos, supra: Ogunke V. National Steel Development Authority (1974) NWLR 128; Fakuade V. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Ideh V. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bey V. the Federal Public Service (Pt. 265) 303; and Udo V. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.”
On page 433A – E OGBUAGU, JSC also had this to say: –
“It must always be borne in mind end this is also settled firstly that where a contract (which includes contract of

employment), involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State V. Atta (1986) 4 NWLR (Pt. 38) 785 C. A. and Leyland (Nig.) Ltd. V. Dizengoff W. A. (1990) 2 NWLR (Pt. 134) 610 at 620.
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and, transferring his service from one body to another body. See the cases of John Holt & Co. (Liverpool) Ltd. V. Stephen Late (1938) 15 NLR 14 and Bijou (Nig.) Ltd. V. Osidarohwo (1992) 6 NWL.R (Pt. 249) 643 at 649. Again, a contract which must in law be in writing, can only be varied by an agreement in writing. See the case of Morris V. Baron & Co. (1918) A.C. 1 at 39. Also settled, is that in the interpretation of a contract involving several

documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd. & 4 Ors. V. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 669 C.A.” (Underlined mine).

The contention of the Appellant under issue one that the Appellant has statutory appointment with the 1st Respondent is hinged on Section 9 of the Companies and Allied Matters Act, 2004 which provides:-
“S. 9 Appointment of staff. The Commission may appoint such other staff as it may deem necessary for the efficient performance of the functions of the Commission under or pursuant to this Act.”
This his to be taken along with Section 8 of the same Act which provides:-
“8. (1) There shall be appointed by the omission, a Registrar-General who shall be qualified to practice as a Legal Practitioner in Nigeria and had been so qualified for not less than 10 years and in addition, has experience in Company Law Practice or administration for not less than 8 years.
(2) The Registrar-General shall be the Chief Executive of the Commission and shall be subject to the directives of the Commission and shall hold office on such terms

and Conditions as may be specified in his letter of appointment and on such other terms and conditions as may be determined, from time to time, by the Commission with the approval of the National Council Ministers.
(3) The Registrar-General shall be the accounting officer for the purpose of controlling and disbursing amounts from the fund established pursuant to Section 12 of this Act.”
The learned Counsel to the Appellant equated the appointment of the Appellant with that of the Registrar-General in paragraphs 5:01:03 – 5:01:04 of the Appellant’s Brief of Argument, the learned Counsel to him submitted on Sections 8 and 9 of the Companies and Allied Matters Act, 2004 as follows:-
“5:01:03. We submit that the proper placement of the appellant on the 24th day of September, 201 0 at its 52nd meeting changed the status of the employment of the Appellant from employment by the management to employment by the Board. The proper placement has put at per the appointment of the appellant with that of the Registrar-General which was done by the board pursuant to Section 8 of Companies and Allied Matters Act, 2004.
5:01:04. We submit

that by virtue of the proper placement Exhibit “C6” and Exhibit “C7” letter promotion of the appellant, the discipline of the appellant must only be done in accordance with the provision of the conditions of service Exhibit “C14”. Clause 4: 11 of the conditions of service provides;
“4:11 disciplinary measures affecting staff on CASS 5-1 shall be taken by the Board of the Commission on the recommendation of the Management.”
The learned trial judge has agreed with this position of the conditions of service when she held at page 398 paragraph 84 of the records of appeal, thus:
“84. The claimant has proved from the above that she is of the category of staff that can only be discipline by the Board. I so find.”
The Respondent’s learned Senior Counsel submitted in paragraphs 3.041 – 3.05 of Respondent’s Brief of Argument in Reply to Appellant’s submissions as follows:
“3.04 My Lords, a cursory perusal at the all provisions of the Companies and Allied Matters Act reveals that they set out in clear terms the qualifications and some of the duties of

Registrar-General and appointment of other staff of the Commission and nothing more. We urge Your Lordship to discountenance the Appellant‘s argument on that point.
3.05 An appointment with statutory flavor is one in which the terms and conditions of service are exhaustively spelt out in a statute or an Act of parliament. A cursory flip at the condition of service Exhibit D17 would reveal that it is not a statute or an Act of parliament to qualify the Appellant’s appointment as one with statutory flavor. It is not one to entitled the Appellant to the mode of termination of appointment she lays claim to. See F.M.C., Ido-Ekiti V. Alabi (2012) 2 NWLR (Pt. 12865) 411 at 438, E- H. The lower Court emphatically articulated the position of law in its judgment in paragraphs 70,76-78 of the Records of appeal which are reproduced below for clarity, viz;
“70. Now, the authorities are all agreed on the following:
“the fact that on employer is the creation of statute does not elevate its employees to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be

predicted for the employment to have statutory flavor where the contract is no question of the contract having statutory flavor; the fact that the other contracting party is the creation of a statute does not make any difference. See for instance, FAKUADE V. OAUTH (1993) 5 NWLR (Pt. 291) 47.
The case of FMC, IDO-EKITI V. OLAJIDE (supra) proceeded to add that for on employment to enjoy the status of statutory flavor, the manner of employment and termination must be specifically provided for in the statute creating the employment. That it is not every appointment in a Federal government agency that is clothed with statutory flavor. The fact that the Federal Government agency is a statutory body does not automatically mean that the conditions of service of its employees must be of special character ruling out the relationship of mere master and servant. It is only when the employment is protected by statute which makes the provisions for the procedure for employment and termination of such employment that it can be said that the employment is clothed with statutory flavor. In fact IMOLOAME V. WAEC (1992) 9 NWLR (Pt. 265) 303 held that the fact that an

appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also JIRGBAGH V. UBN PLC (2001 ) 2 NWLR (PT. 696) 11 CA; NEPA V. ADESAAJI (2002) 17 NWLR (Pt. 797) 578, CA and ILOABACHIE V. PHILIPS (2002) 14 NWLR (PT 787) 264, CA.”
It is the golden rule of interpretation that words in a statute or the Constitution must be given their ordinary grammatical meaning so as to bring out succinctly the real or manifest intention of the lawmakers. The entire provisions of the law must be construed as a whole. I call in aid the cases of:-
1. HON. IFEDAYO SUNDAY ABEGUNDE V. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) 8 NWLR (PART 1461) 314 AT 353 where MAHMUD MOHAMMED, CJN RTD said:-
“The law is trite that in the interpretation of the provisions of the Constitution, the entire provision must be construed together as a whole and not in parts as stated by this Court in several cases including Nafiu Rabiu V. The State (1980) 8 – 11 SC 130, (1981) 2 NCLR 293. The general rule of interpretation of statues has also been laid by this Court in several decisions

and the rule is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See Ogbunyiya V. Okudo (1979) 6 – 9 SC 32 and Ogunmade V. Fadayiro (1972) 8 – 9 SC 1.
2. WIKE NYESOM V. HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2016) 7 NWLR (PART 152) 452 AT 527 F – H per KEKERE-EKUN, JSC who said:-
“The golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous they must be given their natural and ordinary meaning unless to do so would lead to absurdity or inconsistency with the rest of the statute. It was held inter cilia: Ibrahim V. Barde (1996) 9 NWLR (Pt. 474) 513 at 517 B – C per Uwais, CJN (as he then was) that if the words of the statute are precise and unambiguous, no more is required to expound them in their natural and ordinary sense. He held further that the words of a statute alone, in

such circumstance best declare the intention of the lawmaker.”
I have closely examined the said Sections 8 and 9 of the Companies and Allied Matters Act and I can confidently say that there is nothing in the two sections making appointment of the Appellant coupled with statutory flavour.
It is true the said Act provides in Section 8 for appointment of Registrar-General. PW1 the said Section 9 does not make any other appointment to be at par with that of Registrar-General. Section 9 of the Companies and Allied Matters Act only gives and empowers the Corporate Affairs Commission to appoint any other staff at its discretion as it may consider necessary for efficient performance of the function of the Commission under or pursuant to the Act.
This cannot translate or mean that the discipline or cessation of Appellant’s employment is governed by the provisions of Sections 8 and 9 of the said Act (CAMA) or any of the said Section when juxtaposed with the letter(s) of appointment of the Appellant and Conditions of Service made applicable to the Appellant’s appointment.
The Appellant’s letter of Offer of Provisional

Appointment dated 2nd May, 2007 reads:-
“Corporate Affairs Commission…
ADM/SSA/120/X/38
2nd May, 2007
Inuwa Hauwa Kulu
F199 Tunga Housing Estate
Minna
Niger State
Dear Madam
OFFER OF PROVISION APPOINTMENT
With reference to your application and subsequent information, I am directed to offer you employment as a Deputy Manager in the Corporate Affairs Commission on the terms and conditions laid down below:-
2. Your appointment is subject to the terms and conditions laid down by the Commission from time to time.
3. The appointment takes effect from the date you assume duty.
4. Your starting Salary is CASS 7 Step 1.
5. You will be on probation for a period of one year after which the appointment may be confirmed subject to your satisfactory performance and favourable reports obtained from your referees.
6. Other entitlements and allowances are as in the Commission’s Conditions of Service.
7. You are to in form this office within one month from the date of this letter, whether or not the offer is acceptable to you and also indicate the probable date you will assume duty.

Furthermore, the appointment is subject to your being found medically fit for service in the Commission by a Medical Practitioner appointed or recognized by the Commission.
8. You may terminate your engagement by giving one month’s notice or by payment of one month’s salary in lieu of notice. At the same time the Commission may also terminate your appointment by one month’s notice or the payment of one month’s salary in lieu of such notice.
9. Please accept my congratulations.
Yours faithfully,
Sgd
Y. M. MOHAMMED
DIRECTOR, PERSONNEL.
FOP: REGISTRAR -GENERAL.”
The letter of proper placement so much relied upon by the Appellant for contending that her appointment has statutory flavour is as follows:-
“Corporate Affairs Commission…
ADM/SSA/120/X/38
7th October, 2010
Inuwa Hauwa Kulu
UFS: Director, Customer Service
Head Office
LETTER OF PROPER PLACEMENT
I am pleased to inform you that following the recently concluded exercise on proper placement and up-grading, the Board has at its 52nd meeting held Oil the 24th September, 201 0 approved your proper

placement from Deputy Manager on CASS 7/4 to Manager on CASS6/3 with effect from 24th September, 2010.
It is hoped that you will reflect this positive development in your output and commitment to duty.
Please accept my congratulations.
Sgd.
S. R. UBA
FOR; REGISTRAR-GENERAL.”
There is nothing in the two letters stating that Appellant’s appointment shall be governed by any Regulations or by the provisions of the Companies and Allied Matters Act, 2004 Cap C 20 LFN.
The letter of proper placement Exhibit 6 and Exhibit 7 which is letter of promotion make it clear that the discipline of Appellant will be in accordance with Conditions of Service of 1st Respondent Exhibit C14 which provides that:-
“Disciplinary measures affecting staff on CASS 5 – 1 shall be taken by the board of the Commission on the recommendation of the management.”
Now in the statement of facts of the Appellant paragraphs 23 – 32 thereof the Appellant pleaded thus:-
“23. The Claimant further states that while she was still waiting for the outcome of the Central Disciplinary Committee, she got a call from the office asking

her if she was at home for there was a letter for her, upon her affirmative answer, a letter of Termination of Appointment dated the 31st day of August, 2016 was brought to her at home. She collected it on the 31st day of September, 2016.
24. The Claimant avers that it was strange to her to find that the Termination of Appointment was with effect from the 21st day of August, 2016 and that she would be paid one month‘s salary in lieu of notice and that it was signed by S. R. Uba for: Registrar-General, the 2nd Defendant. The purported Letter of Termination of Appointment is pleaded and shall be relied upon at the hearing.
25. The Claimant further avers that the Letter of Termination of Appointment dated the 31st day of August, 2016 and signed by S. R. Uba for the Registrar-General the 2nd Defendant is null, void and of no effect for the following reasons:
(a) The letter has a retrospective effect.
(b) The Claimant being on CAS5 5/1 can only be disciplined by the Board and not the 2nd Defendant as in this case as required by Paragraph 4.11 of the Conditions of Service of Corporate Affairs Commission. The Conditions of Service is pleaded

and the Defendants are put on notice to produce the booklet at the hearing.
(c) The Claimant being a staff on CASS 5/1, by the Conditions of Service is entitled to three months’ Salary in lieu of notice and not one month’s Salary in lieu of notice as provided by Paragraph 11 : 01.
26. The Claimant emphatically avers that in all the stages of this case, she was not given fair hearing, even before the Defendants queried her they stopped her salaries. The salary was stepped from October, 2015 to date.
27. The Claimant states that the purported Letter of Termination of Appointment just came to legalize the already pervasive situation.
28. The Claimant further states that she operates a Savings Account with guarantee Trust Bank Plc, with Account No: 0023324681 and that is where the 1st Defendant pays her Salaries and Allowances. From October 2015 no Salaries or Allowances were paid to her. The Statement of Account for the months of July 2015, August 2015, September 2015 and October 2015 are pleaded and shall be relied upon at the hearing.
29. The Claimant avers that the circumstances of the case show that she was all the way

being a target by the powers that be in the Management of the 1st Defendant. The extreme eagerness by the Management to push her out of office makes them to forget the proper steps to have been taken.
30. The Claimant further avers that the 1st Defendant is a Statutory Body and is not like a private company where the Chief Executive can hire and fire with or without reason. The 1st Defendant is not a private Estate.
31. The Claimant contends that the action of the Defendants against her is most unfair and that has caused her untold hardship, loss and anxiety.
32. Whereof the Claimant claims against the Defendants jointly and severally as follows:
(a) A DECLARATION that the 2nd Defendant lacked the competence to terminate the appointment of the Complainant being a staff on CASS 5-1.
(b) A DECLARATION that the Letter of Termination of Appointment dated 31st August, 2016 signed by S. R. Uba for the 2nd Defendant is null and void and of no effect whatsoever.
(c) A DECLARATION that the Stoppage of the Salaries and Allowances of the Complainant from October 2015 up to the purported date of Termination of Appointment, without being put on

suspension is unconstitutional as the Complainant was not afforded fair hearing as provided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(d) AN ORDER directing the Defendants to re-instate the Complaint to her rank and post.
(e) AN ORDER directing the Defendants to pay the Complainant all her outstanding salaries and allowances from October 2015.
(f) Cost of this action.”
As can be seen above the Appellant admitted by own pleadings that by her appointment as a staff on CASS 5/1, and Conditions of Service relied upon, she was entitled to three months salary in lieu of notice and not one month salary in lieu QS provided in paragraph 11:01.
She did not plead any provisions of CAMA or Regulation stating the statutory procedure to be followed before her services could be dispensed with as parties are bound by their pleadings. A party cannot be allowed to deviate from his pleaded case. Her letter of appointment dated 2nd May, 2007 stated that Appellant shall be entitled to one month’s notice or payment of one month salary in lieu of Notice upon disengagement or termination of her appointment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Contrary to the Appellant’s pleading that she was entitled to three months’ salivary in lieu of Notice, paragraph 11.01 of the Conditions of Service relied upon by the Appellant Exhibit 14 categorically stated that all employees below CASS 6 is entitled to one month’s salary in lieu of notice. Appellant by her pleading was a staff on CASS 5/1. Exhibit 14 paragraph 11.01 provides that any staff below CASS 6 who resigns shall pay one month basic salary in lieu of Notice. It stands to reason that if the 1st Respondent wishes to terminate a staff’s appointment who is below CASS 6, it will also pay one month in lieu. In all, the pleadings of the Appellant bears eloquent testimony to the fact that her appointment is NOT a statutory appointment. The recent decision of the Supreme Court clearly provides and reiterates the criteria that will make an employee’s appointment statutory or with elements of statutory flavour and conditions which must be met before such employee can be removed from office. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. MISS YETUNDE ZAINAB TOLANI (2019) 7 (PT. 2) SCM 88 AT 1034 TO 104 A – B per PETER

ODILI, JSC who said:-
“On the question whether or not the employment in issue enjoys statutory flavour, I need to state very humbly too, that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are: –
(i) The employer must be a body set up by the Constitution or statute and;
(ii) The statute or regulations made pursuant to the Constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline.”
At pages 105D-H – 106A his Lordship also said:-
“Clearly the relationship between the appellants and the respondent; a Constitutional body, is neither one of master and servant relationship under the common law nor employment where office is held at pleasure. Rather, the relationship between the appellants and the respondent falls squarely on employment protected by statute or with statutory flavour. See the case of E. P. Iderima V. Rivers State Civil Service Commission (2005) 7 SC (Pt.11) 135 at 151, (2005) 10-11 SCM, 107. In the above excerpt, the trial Court

appears to have lost sight of the fact that in the law of master and servant, employment falls into three categories viz:-
(i) A pure master and servant relationship under common law.
(ii) Employment where officer (sic) is held at pleasure.
(iii) Employment protected by statute. See Ridge V. Baldwin & Ors (1964) AC 40, Olarewaju V. Afribank (Nig.) Ltd (2001) 7 SC (Pt. III) 1, (2001) 13 NWLR (Pt.731) 691 a t Pt. 705, Olaniyan V. University of Lagos (1985) 2 NWLR (Pt.9) 599. In the instant case, since the appellant‘s employment is governed by the Civil Service Rules, his employment comes under the 3rd category. That is, the employment protected by statute or employment with statutory flavour; see University of Calabar V. Inyang (1993) 5 NWLR (Pt. 291) 100 at 117; Shitta-Bey V. Federal Public Service Commission (1981 ) 1 SC (Reprint) 26.”
I cannot resist the position of this Court in the case of Imoloame V. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303 per karibi- Whyte JSC thus:-
“There is an employment with statutory flavour when the appointment and termination is governed by statutory provision.

It is accepted that where “the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. The accordingly enjoy statutory flavour.”
My Lord KEKERE-EKUN, JSC also said on pages 107H TO 108 A – E as follows:-
“The various categories of contracts of employment held by this Court in C. B. N V. Igwillo (2007) 4-5 SC 154 @ 172 lines 25-40, (2007) 11 SCM, 54 to be as follows:
“The law is settled that there are now roughly three categories of employment viz: (a) those regarded as purely master and servant; those where a servant is said to hold office at the pleasure of the employer; and those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See: Olaniyan V. University of Lagos (1985) 2 NWLR (Pt.9) 599. An employment is said to have statutory flavour when the employment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other

employment outside that category is governed by the terms under which the parties agree to be master and servant.” (Emphasis mine).
See also: Imoloame V. WAEC (1992) 9 NWLR (Pt. 265) 303; Shitta-Bey V. University of Lagos (1981) 1 SC 40; Where the procedure for employment and discipline is clearly spelt out in the relevant statute, the employer must comply strictly with its provisions in dismissing its employee or terminating his employment. See: Comptroller General of Customs & Ors. V. Gusau (2017) 4 SC (Pt. II) 128, (2011) SCM, 29; Bamgboye V. Unilorin (1999) 10 NWLR (Pt. 622) 290.”
The Appellant’s employment is not an employment with statutory flavour. The fact that the lower Court held that the termination of the Appellant was wrongful only means that her conditions of service as provided for in her first letter of appointment; letter of proper placement Exhibit 6 and letter of promotion were not complied with and not that the Appellant ought to be reinstated. NO. The lower Court has provided the Appellant remedies to which Appellant is entitled to her. The fact that the letter of termination was signed by Registrar

shows he acted for the 1st Respondent in that capacity and not that the Registrar employed the Appellant. This again will not entitle the Appellant to reinstatement. All it means is that the termination of Appellant’s employment was wrongful.
The lower Court was right in holding that the Appellant was/is only entitled to damages for wrongful termination of her employment and not for reinstatement to her employment. Issues 1, 2 and 3 are resolved against the Appellant.

On issue 4 as to whether the withdrawal of the charge of absconding from duty against the Appellant in view of her request for sick leave does not mean that the Respondents agreed that the Appellant was sick arid therefore entitled to her salaries and allowances during the period of the sickness. The high point of the Appellant’s learned Counsel submission can be found in paragraphs 5:02:05 – 5:02:06 of the Appellant’s Brief as follows:-
5:02:05. My Lords, the appellant was only paid her salary in full in the month of October, 2015, only one trenche was paid to her in the month of November, 2015. The appointment was terminated on 25th August, 2016. This is to say

that the appellant was in the employment of the Corporate Affairs Commission up to the purported termination on the 25th of August, 2016.
5:02:06. It is our further submission that with the withdrawal of the absconding from duty charge, the appellant automatically falls under the provision of clause 7:10 that covers staff on sick leave. The “No work no pay” rule does not apply to a staff adjudged sick.”

The Respondent’s learned Senior Counsel responded in paragraphs 3.29 to 3.30 of their Respondent’s Brief as follows:-
“3.29 My Lords, absconding from duty is a Gross Misconduct in Clause 2.09 of the Commission’s conditions of service, while Negligence of Duty and disregard to constituted authority are serious misconducts.
3.30 By Exhibit D17, dated 31st May, 2016 and headed Report of Cases Considered by the Central Disciplinary Committee on 9th February and 22nd March, 2016 the three charges of Absconding from Duty, Negligence of Duty and Disregard to Constituted Authority were established against the Appellant. It was therefore recommended for dismissal pursuant to Clause 4.09 of the Commission‘s Conditions of Service.

I fully agree with the learned Senior Counsel to the Respondent upon perusal of Exhibit D17 at page 152 of the record and pursuant to my examination of Exhibit C14 Clauses 2.09 and 4.09 and I am of the firm view that the charge of absconding from duty levied against the Appellant was not withdrawn by the Respondents and as such the Appellant is not entitled to any salaries or entitlements for the period in question or to any payment up till 25th August, 2016. Issue 4 is also resolved against the Appellant. The Appellant’s appeal lacks merit and it is hereby dismissed in its entirety.

The judgment of the National Industrial Court of Nigeria delivered on 12th February, 2018 by HON. JUSTICE E. N. AGBAKOBA is HEREBY AFFIRMED.
The Appellant shall pay N50,000.00 (Fifty Thousand Naira) as costs to the Respondents.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.

MOHAMMED BABA IDRIS, J.C.A.: I agree.

Appearances:

FRANKLIN P. JINGI, ESQ. For Appellant(s)

PROF. ANDREW I. CHUKWUEMERIE, SAN For Respondent(s)