SHUAIBU & ORS v. NBC PLC (COCA-COLA)
(2020)LCN/15560(CA)
In The Court of Appeal
(KANO JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/KN/301/2019
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
1. YUSUF SHUAIBU 2. JOSHUA LUKA 3. FAROUK SULEIMAN APPELANT(S)
And
NIGERIAN BOTTLING COMPANY PLC (COCA-COLA) RESPONDENT(S)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The Judgment of Hon. Justice E. D. E. Isele of the National Industrial Court of Nigeria, Kano Division in Suit No. NICN/KN/56/2016 delivered on 8th February, 2019 which dismissed the Appellants’ claims gave rise to this appeal.
The case of the Appellants on their pleadings (statement of facts) is that the 3 Appellants were individually employed by the defendant (now Respondent) as salesmen and each of them served the Respondent as driver/salesman and drove for 8, 7, & 11 years respectively until the 14/5/2010 when each of them was issued with a query on an allegation of over issuance of rebates to some of their named customers, an allegation which they all denied within 48 hours as required by the query.
However, inspite of their denial of the allegation, the Respondent constituted a disciplinary panel to try them. It is their case that the panel did not give them a hearing but directed them to the waiting arms of the police invited by the Respondent. They were denied fair hearing and locked up by the police without being given an opportunity to appeal as prescribed by the code and on 21/6/2010 were issued with latters of termination of their appointment. They were later arraigned on F.I.R. before a Magistrate’s Court and after about five years of trial, they were discharged for inability of the defendant to prove the allegation against them. They averred that sequel to their discharge, they demanded payment of their salaries and entitlements from the date of their termination but the defendant only paid them their one month salary in lieu of notice and some token as gratuity which they were made to sign as full and final settlement of their claims. They claimed jointly & severely against the Respondent the following reliefs:
1. Declaration that not hearing the claimants individually or collectively in their defence in the disciplinary proceedings convened against them by the defendant amounted to a violation of their fundamental rights which render the whole proceedings unconstitutional, null and void.
2. A declaration that the disciplinary proceedings conducted against the claimants by the defendant occasioned a miscarriage of justice against them; same being flawed with irregularities which infringe on the claimants fundamental rights guaranteed by Section 36 sub (1) (2) (3) (5)(6a) and (9) of the 1999 Constitution as amended.
3. An Order setting aside the termination of the claimants employment handed them on the recommendation of the disciplinary panel constituted by the defendant against the claimants, the recommendation for same being unconstitutional, null and void.
4. An Order reinstating the claimants to their jobs and the payment of their entitlements from June 2010 when their appointments were terminated until same is upset in full.
5. Cost of this action.
ALTERNATIVELY
1. The claimants claim the sum of N30,000,000 (Thirty MILLION naira only) jointly and severally being special damages for the exceptional hardship and joblessness the defendant exposed them into unfairly and the mental and physical trauma they suffered for 4 years as they endured a criminal trial at the instance of the defendant after the disciplinary panel they faced had recommended termination of their appointments; which at the end of it the Court found nothing against them and discharged them.
The Respondent denied the claim and its case is that the Appellants’ right to fair hearing was not breached nor did it invite the police to arrest the Appellants. That the termination of the Appellants’ employment was done in the exercise of its contractual right to terminate an employee’s employment with or without any reason as agreed upon by the Appellants and that the Appellants were paid their one month’s salary in lieu of notice, gratuity and other terminal benefits the acceptance of which they signed as the full and final settlement of all their claims.
The matter went into full trial. Three witnesses testified for the Appellants and some exhibits were tendered. The Respondent’s case was presented through one witness who also tendered some exhibits and argued that the Appellants’ case was by virtue of Section 7 (1) (a) of the Limitation Act statute barred, and that the lower Court has no jurisdiction over fundamental right enforcement matters. At the end of the trial, the learned trial judge held that the matter was not statute barred; that it has jurisdiction over the claim and that the Appellants failed to prove their claim and dismissed same.
The Appellants were aggrieved by the dismissal of their claim and through their counsel, filed a notice of appeal on 1/3/2019 predicated on two grounds. The Respondent who was displeased with the portion of the judgment overruling its submission that the Appellant’s suit was statute barred, also filed a notice of intention to contend that the judgment of the lower Court should also be confirmed on that ground. The notice contains one ground to wit:
“GROUND 1
The lower Court ought to have dismissed the Appellant’s suit for being statute barred in view of Section 7(1) (a) of the Limitation Act, Cap 522 LFN, 2004 and hence lacks jurisdiction to determine the suit.”
From the Appellants’ two grounds of appeal, learned counsel for the Appellants, Sani Umar Esq., in a brief of argument filed on 2/7/2019 and deemed on the 20/10/2020 distilled 3 issues for determination namely:-
1. Whether the Judgment of a Court must be confined to the reliefs sought or issues joined by the parties in their pleadings.
2. Whether the non-evaluation of the evidence adduced by the appellants as claimants at the trial Court led to a mis-carriage of justice against them.
3. Whether from the totality of fact and evidence adduced the appellants are entitled to the reliefs sought.
To reflect the ground of his notice to contend, the Respondent formulated 4 issues for determination, to wit:
ISSUE ONE:
“Whether the lower Court has jurisdiction to entertain this suit, same having being statute barred.
ISSUE TWO:
Whether the lower Court has jurisdiction to entertain this suit, same being a claim for Enforcement of Fundamental Human Right.
Issues for determination raised herein the Respondent’s brief:
ISSUE THREE:
Whether the judgment of a Court must be confined to the reliefs sought or issues joined by the parties in their pleading.
ISSUE FOUR:
Whether the non-evaluation of the evidence adduced by the Appellants as Claimants at the trial Court led to a miscarriage of justice against them.
ISSUE FIVE:
Whether from the totality of fact and evidence adduced, the Appellants are entitled to the reliefs sought.”
At the hearing of the appeal the Respondent’s 2nd issue was withdrawn and same along with the argument canvassed thereon were struck out.
In considering the issues worthy of determination, it is important to consider not only the argument canvassed by counsel on both sides and the decision appealed against but also the grounds of appeal isolating the reasons for attacking the judgment or decision of the lower Court.
A look at the grounds of appeal filed on the 1/3/2019 (Pp 209 – 210 of the record of appeal) shows that the judgment of the lower Court was attacked only on two grounds, namely:
GROUND ONE:
“The learned trial judge misdirected himself when he failed to base his findings on the claims sought by the claimants.
GROUND TWO
The learned trial judge misdirected himself when he completely omitted to evaluate the evidence placed before him by the claimants thereby occasioning a miscarriage of justice.”
However, as seen from the reproduced issues for determination, the Appellants’ counsel has distilled 3 issues from the two grounds of appeal. This is not permissible. It is wrong in law for issues for determination to outnumber the grounds of appeal. In other words, the issues for determination cannot be in excess of the number of the grounds of appeal filed. See Pharma Deko Plc V. Nigeria Social Insurance Trust Funds Management Board (2011) 5 NWLR (Pt 1241) 431′ ANYEGWU & Anor V. ONUCHE (2009) LPELR 521 (SC), GWAR V. ADOLE (2003) FWLR (Pt 176) 747 @ 760.
Similarly, it is not permissible to formulate more than one issue from a ground of appeal. While an issue can be formulated from one or a combination of grounds of appeal, a single ground of appeal cannot give birth to multiple issues, it can only donate one issue for determination. In other words, an issue for determination can be formulated from one, two or more grounds of appeal but the reverse is not permissible. See STATE V. OMOYELE (2017) 1 NWLR (Pt 1547), Gyang v. National Steel Council & Anor (2003) FWLR (Pt 147) 1172, at 1176, Yisi Nigeria Ltd V. Trade Bank Plc (2013) 8 NWLR (Pt 1357)522. It is settled law that the formulation of issues in excess of ground of appeal or more than one issue from a ground of appeal constitutes proliferation of issues for determination which has been frowned upon by the Courts TERIBA V. ADEYEMO (2010) 11 NWLR (Pt 1211) 2442. The Appellants’ counsel has distilled issues 2 & 3 from ground 2. This is wrong. However, since the Courts are enjoined to pursue the substance of the case rather than chase the shadow of technicalities, this Court will not close its eyes to the complaint validly raised in ground 2 but will exercise its discretion in line with the current attitude of the Courts to utilize issue 2 which more appropriately captures the complaint in ground 2 and ignore issue No.3. See CONSOLIDATED BREWERIES PLC V. AISOWIEREN (2002) F.W.L.R. (Pt 116) 959, 981.
Having regards to the argument canvassed by parties in support of their respective issues for determination including the Respondent’s Notice to contend and the evidence on record, it is my view that two issues will adequately determine this appeal. These are:
(1) Whether the learned trial judge was right when he held that the Appellants’ suit was not statute barred.
(2) Whether the learned trial judge properly evaluated the evidence when he held that the Appellants failed to prove their claim.
ISSUE NO.1
(1) Whether the learned trial judge was right when he held that the Appellants’ suit was not statute barred.
It is the contention of the Respondent that the suit leading to this appeal is statute barred within the contemplation of Section 7(1)(a) of the Limitation Act Cap 522 LFN 2004 and that Section 2(a) of the Public Officers’ Protection Act relied upon by the learned trial judge to hold that the suit was one of the exceptions to the law though also a limitation law, was wrongly applied because same is distinct from and does not apply to the Section 7 (1)(a) of the Limitation Act which precludes the Appellants from instituting an action against the Respondent after six years of the accrual of the cause of action. He cited the cases of ODEBIYI V. WEMA BANK PLC (2015) ALL FWLR (Pt 780) 1294 @ 1297, P.N. UDOH TRADING CO. LTD V. ABERE (2013) 10 NWLR (Pt 1363) 423.
He stated that in determining when the Appellants’ cause of action arose for the purpose of the limitation law, the Court must examine the date of the termination of the Appellants’ employment and compare same with the date the suit was instituted – ELABANJO V. DAWODU (2006) 15 NWLR (Pt 1001) 76. Our attention was drawn to the Appellants claims and the letters of termination of appointment at pages 81 – 82 of the record and he argued that the time began to run from 21/6/2010 when the Appellants’ appointments were terminated and that it is not in contention that the suit was filed on 14/11/2016 which is a period of 6 years, 4 months and 24 days after the accrual of the cause action. He cited Grains Production Agency V. Charles Ezegbulem (1999) 1 NWLR (Pt 587) 408, Adeniyi V. Gov’t Council Yaba College of Technology (2004) All FWLR (Pt 724) 144.
He contended that the learned trial judge failed to appreciate the flavor of their argument which is premised on Section 7 (1)(a) and not on Section 2 (a) of the Public Officers Protection Act (P.O.P.A) which action cannot be excluded by any exemption law because POPA protects public officers holding public offices but that their case has nothing to do with the action or inaction of a Public Officer or authority. IBRAHIM V. J.S.C. (1998) 14 NWLR (Pt 584) 1038, FAJIMOLU V. UNIVERSITY OF ILORIN (2007) 2 NWLR (Pt 1017) 74, ELABANJO V. DAWODU (Supra).
It was thus contended that the proper thing for the lower Court to have done after identifying the nature of the employment to be that of a simple contract of master servant relationship, is to hold that it has no jurisdiction under Section 7 (1) (a) of the Limitation Act the Court being robbed of jurisdiction to entertain the action. ARAKA V. EGEAGION (2000) ALL FWLR (Pt 36) 830, KENNETH NWOGU V. EMMANUEL NWANEKEZI (2016) LPELR – 41767 (CA).
The Appellants’ response as contained in the Appellants’ reply brief is that by the nature of the Appellants’ claim on the pleadings which borders on the infringement of the Appellants constitutional right to fair hearing under Section 36 (1) (2) (3) (5) (6) & (9) of the CFRN 1999 (as amended), the constitutionality of the Respondent’s action at the disciplinary proceedings, Section 7 (1) (a) of the Limitation Act does not apply to bar the Appellants from instituting the action. That the constitutional provisions must be considered in its totality as a whole and not in isolation – INAKOJU & 17 ORS V. HON. ADELEKE & 3 ORS (2007) ALL FWLR (Pt 353) 3 @ 87 – 88. Counsel also cited the case of RANSOME KUTI & ORS v. A.G.F. (1985) 5 NWLR (Pt 10) 211 P. 229 – 230. On the nature of fundamental human rights, which he submitted cannot be negated by any restrictions or limitation and certainly not by Section 7 (1) (a) of the Limitation Act. He also submitted that the lower Court was right to assume jurisdiction to entertain the matter vide Section 254 (1) (d) of the same constitution and justifiably likened the Appellants claims to that of a Public Officer under the Public Officers Protection Act, AJAO V. THE PERM SECRETARY, MINISTRY OF ECONOMIC PLANNING BUDGET (CIVIL SERVICE PENSION OFFICE) (CA/L/922/2010), A.G. RIVERS STATE V. A.G BAYELSA STATE & ANR. (2013) 3 NWLR (Pt 1340) 123, which creates exceptions to the Limitation law.
RESOLUTION OF ISSUE 1
The main issue here is whether the Appellants’ suit at the lower Court was statute barred or one exempted by the Limitation Law. A suit is said to be statute barred when it is filed, initiated or commenced after the expiration or effluxion of the period prescribed by the provisions of the statute.
The period of limitation simply put is that period of time after the accrual of a cause of action during which legal proceedings can be brought by a competent party because the period laid down by the Limitation Law or Act has not lapsed. Conversely, an action brought or instituted after the expiration of the limitation period will be statute barred because the period prescribed by the limitation law has lapsed. In other words, an action not commenced within the specified period when the cause of action accrued becomes incompetent. See ADIGUN V AYINDE (1993)8 NWLR (PT 313) 516, OBIEFUNA V OKOYE (1961) ALL N.L. R.357.
A cause of action means the factual situation the existence of which gives a person a right to judicial relief, or which if sustained entitles the plaintiff to a remedy against the defendant and it consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment: and everything necessary to give a right of relief in law or even in equity. SeeEGBE VS. ADEFARASIN (supra): YUSUF VS. CO-OPERATIVE BANK LTD. (1994) 7 NWLR (PT.359) 676: UNION BANK OF NIGERIA LTD. VS. OKI (1999) 8 NWLR (PT.614)244. In AKILU VS. FAWEHINMI (NO.2) (1989) 2 NWLR (PT. 102) 122 AT 169, a cause of action thus consists of the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim and seek a remedy. These include every material fact necessary to be proved to entitle the claimant to succeed. See DUZU VS. YUNUSA (2010) 10 NWLR (PT. 1201) 80. See BELLO VS. A.G. OYO STATE. (1986) 5 NWLR (PT. 45) 828.
In IBRAHIM VS. OSIM (1988) 3 NWLR (PT. 82) 257 AT 267, a cause of action was said to be the entire set of circumstances giving rise to an enforceable claim and consists of two elements:
(a) The wrongful act of the defendant, which gives the plaintiff his cause of action or complaint, and
(b) The consequent damages.
A plaintiff is said to have a cause of action when his pleadings reveal that there has been an infraction or trespass to his rights and obligation.
The limitation law here alleged to have been breached is Section 7 (1) (a) of the Limitation Act. It provides:
7 (1) “The following actions shall not be brought after the expiration of six years from the date on which the cause action accrued.
(a) Actions founded on simple contract.”
On the other hand Section 2 (a) of the Public Officers Protection Act utilized by the learned trial judge provides:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act Of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The Public Officers Protection Act (POPA) as the name implies, is an Act or law designed to protect public officers who act in good faith in the course of performing their official duties. Section 2 (a) of the Act is meant to provide full protection to all public officers or persons engaged in the execution of public duties who at all times material acted within the confines of their public duty provided that the action against the public officer is not instituted within 3 months. MOMOH V. AFOLABI OKEWALE & ANR (1977) 6 SC 81 @ 88, IBRAHIM V. J.S.C (1998) 14 NWLR (Pt 584) 1. The law is specific. The target beneficiaries of the section are public officers and not just any person.
In the case at hand, the suit was instituted by the Appellants as claimants before the lower Court against the Respondent as defendant wherein the Defendant/Respondent’s Counsel raised the issue that the Appellants suit against the Respondent was statute barred. Obviously, the Respondent (the Nigeria Bottling Company (Coca-Cola) whose action was the subject of the Appellants complaint in the suit is not a public officer within the contemplation of Section 2 (a) of the Public Officers Protection Act whose action or wrong doing is intended by the Act to be protected. The said provision is inapplicable to the suit instituted by the Appellants against the Respondent. I agree with the Respondent’s counsel that the learned trial judge was wrong to have invoked Section 2 (a) of the Public Officers Protection Act in favour of the Appellants.
The proper applicable statute as rightly submitted by the Respondent’s counsel is Section 7 (1) (a) of the Limitation Law. By it, for an action founded on a simple contract to be competent and enforceable, it must be commenced within six years from the date of the accrual of the cause of action, and if commenced a day after the expiration of the prescribed period of 6 years, the action becomes statute barred. Once the Court reaches a conclusion that an action instituted by the plaintiff is/was statute barred, the consequence is that it removes the plaintiffs’ right in Court and leaves him with a bare and empty action which he cannot enforce. The plaintiffs’ right becomes barren. See Osun State Gov’t V. Dalami Ltd (2007) ALL FWLR (Pt 365) 438, DAMBO V. WAZIRI (2014) LPELR – 23986 (CA).
In the case at hand there is no disputation that the Appellants’ cause of action arose and accrued on 21st June, 2010 when their letters of termination of employment, exhibits C, I and N, respectively were handed over to them. The writ of Summons shows that the suit was instituted on 14/11/2016. By a simple computation, the difference between the former event and the latter is over six years by over four months. The law is trite that where by a simple calculation from the date of accrual of cause of action to the filing of the suit the prescribed time for instituting the action has elapsed as in the case at hand, the Court has no discretion in the matter. It is as simple as it is stringent. The action is statute barred and the right of enforcement of the cause of action is removed.
The contention of the Appellants’ counsel is that since the Appellants’ case is not founded on contract but borders on the infringement of the Appellants’ fundamental right to fair hearing at the disciplinary panel, their case should be exempted from the limitation law. Reliance was placed on the case of Ransome Kuti & Ors V. A.G.F. (Supra) where the Supreme Court held inter alia that:
“But what is the nature of a Fundamental Right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself”.
It is true that the right to fair hearing is a fundamental and constitutional right guaranteed to everyone. They are inalienable and immutable in nature. Therefore as held in BADEJO V. MINISTER OF EDUCATION (1996) – 10 SCNJ 51, it is a right that stands above the ordinary laws of the land. That explains the wisdom behind the enactment of Order 3 of the FREP Rules that an application for the enforcement of Fundamental Rights shall not be defeated by any limitation law whatsoever. However for an action bordering on infringement of right of fair hearing to be exempted from the application of a limitation law, the cause of action must be founded on the breach of the fundamental right issue and commenced under the fundamental Rights Enforcement (Procedure) Rules.
That is not the situation here. The cause of action in the suit initiated by a writ or summons leading to this appeal is the termination of employment of the Appellants by the Respondent. The alleged breach of fair hearing occurred in the process of the termination of their appointment. The breach of the fair hearing was not the Appellants main cause of action but is ancillary to the principal cause of action. Not having been the main cause of action commenced under F.R.E.P. Rules, the action cannot be exempted from the application of the limitation law.
Appellants’ counsel also in reply brief, cited the case of Abacha V Chief Gani Fawehinmi (2000) 4 SCNJ 400 to submit that an action for Fundamental Human Right can be commenced by a writ of summons. The facts of that case are important. Chief Gani Fawehinmi, the Respondent in that appeal was arrested and detained under the Provisions of the State Security Detention of Persons Decree No.2 1984, as amended by the State Security (Detention of Persons) Amendment Decree No.11. The decree ousted the jurisdiction of the Court to release any person detained under it. The entire groundnorm, the Constitution of the Federal Republic of Nigeria, was then suspended by the Constitution (Suspension and Modification) Decree No. 107 of 1993. Section 4 (1) of the State Security (Detention of persons) Act Cap 414 prohibited the institution of any suit or action against any person for anything done or intended to be done pursuant to the Act. Section 4 (2) – Suspended Chapter IV of the constitution but left CAP 10, the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (CAP 10 LFN 1990) unaffected. CAP 10 deals with international Treaties that have been ratified and domesticated as the municipal law of the country.
The Respondent, Chief Gani Fawehinmi applied for the enforcement of his Fundamental Right under the African charter which the trial and the lower Court, (the Court of Appeal), held was a wrong procedure but the Supreme Court, in allowing the procedure as the only available option, referred to its earlier decision in FAJINMI V. Speaker of Western House of Assembly (1962) SCLR 300 where it had taken a position that where there is no provision as to the procedure to be followed in enforcing the jurisdiction conferred, the plaintiff is entitled to bring the case in the usual form of an action and to have it heard. Drawing inspiration from the FAJINMI’s case, the Court then held thus:
“The Respondent could not have come by way of an action commenced by a writ or by any other permissible procedure such as the Fundament Right (Enforcement) Rules 1979.”
It is thus clear that the case of Abacha V. Fawehinmi (Supra) was decided on its peculiar facts when Chapter IV of the Constitution was suspended by Decree No 2. It was then impossible for the Respondent to have proceeded under the proper procedure prescribed under the Fundamental Rights (Enforcement) Rules. The only option was to root the application via the African Charter; a treaty which was ratified by Nigeria and remained unsuspended by the Decree. It follows that the case does not support Appellants argument that an action for enforcement of fundamental rights can be commenced by means of a writ of summons.
It is the law that even in an action commenced under the Fundamental Rights Enforcement (Procedure) Rules where an alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, the claim will be declared incompetent under the enforcement Rules. See TUKUR v. GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt 117) 517 @ 547, wherein Ogundare JSC held inter alia:
“The principal complaint of the appellant in the whole case was his deposition as Emir of Muri, the alleged breach of his fundamental rights to fair hearing, liberty a freedom of movement were merely accessory to his principal complaint. The proceedings by way of Fundamental (Enforcement procedure), Rules are inappropriate in the circumstance.”
In the instant case, the Appellant’s principal complaint which is their cause of action is the termination of their appointment. The alleged breach of their right to fair hearing at the proceedings of the disciplinary committee (Panel) is only ancillary to their principal claim which is founded on alleged breach of contract. It cannot be exempted from Section 7 (1) (a) of the Limitation Act which is the applicable limitation law. Therefore having not instituted the action within the prescribed limitation period, the Appellants lost their right to enforce their cause of action and the learned trial judge was wrong to have entertained the claim. This issue is resolved against the Appellants.
This would have been the end of the matter, but this Court not being the final Court, we are duty bound to consider the next issue and look into the merits of the case in the event of a further sojourn of the matter to the apex Court to afford it the opportunity of our views.
ISSUE NO.2
Whether the learned trial judge properly evaluated the evidence when he held that the Appellants failed to prove their claim.
The Appellants’ contention on this issue is that the learned trial judge confined his findings only to the issues raised by the Respondent and completely ignored to make any pronouncement on the Appellants’ claims and reliefs touching on the constitutionality of the Respondent’s action which deprived the Appellants their right to fair hearing refusing to inform the Appellants of the findings of the disciplinary panel and failure to give the Appellants opportunity to appeal the panel’s decision as contained in the Rules, before their employment was terminated thereby occasioning a miscarriage of justice. OGUNYADE V. OSHUNKEYE & ANOR (2007) LPELR 2355 (SC), ASEIMO V. AMOS(1975) 2 SC.
He complained that had the lower Court thoroughly evaluated the evidence laid before the Court rather than basing his conclusion on a misconception of fact despite the documentary evidence before him, he would have realized that the contractual relationship between the Appellants and the Respondent was not that of master and servant relationship but one laced with statutory flavour. His reason for this is that the employment was governed by the Rules and Regulations concerning the disciplinary action, termination and dismissal, and Appellant’s Appointment letters made reference to staff handbook, condition of service and disciplinary proceedings as evidenced by exhibits F – F35 & E – E52. All these he argued the lower Court failed to evaluate before concluding that the relationship was that of Master and Servant.
He also argued that had the Court evaluated the query letters (Exhibits 13, 11 & M), together with the handbook & code of conduct and Grievance proceedings, (exhibits E – 52 & F – F35), he would have declared the termination of the Appellants’ appointment by the Respondent as unlawful & ultra-virus. That the Appellants having answered the query to avert the punishment in part iii Article 16, the Respondent instead of adopting the recommended Disciplinary procedure which includes informing the Appellants of the Panel’s findings and affording them the opportunity to appeal and the right to call witnesses, Jettisoned all those steps thereby making the disciplinary proceedings selective, partial, inconclusive and ultra vires.
It was also contended that had the Appellants being availed the opportunity to defend themselves at the Disciplinary panel, they would have exonerated themselves as they did before the Magistrate’s Court by tendering the documents, exhibits J, J1, O, K & P which showed that they had an approval to issue the rebates more so that the Respondent’s only witness stated that the Appellants were not and could not have been in the position to issue the rebates since rebates are issued from Lagos but they were not afforded that opportunity.
Another blame heaped on the lower Court is that it failed to consider the fact that the uncontroverted evidence if considered, would have produced a different result especially that apart from general denial, the Respondent did not produce any evidence to prove that the Appellants statements is false. He cited the case of ADEBIYI V. UMAR (2012) 9 NWLR (Pt 1305) 279 (CA). Finally, he reiterated the fundamental nature of fair hearing a breach of which he argued, results in the nullity of the entire proceedings urging us to so hold the proceedings of the lower Court as a nullity.
RESPONDENTS SUBMISSION
In his response, counsel for the Respondent submitted that the lower Court properly evaluated the evidence, appraised the Appellants’ case, the reliefs and pronounced on all the 3 issues including that of fair hearing and that the Appellants failed to point out any extraneous issue which formed the basis of the judgment contending that the case of OGUNYADE V. OSHUNKEYE & ANR (2007) LPELR – 2355 (SC) relied upon by the Appellants does not support them but reinforces the judgment of the lower Court which appraised all the issues and therefore there cannot be a miscarriage of justice – ADEDEJI V. BELLO (2015) ALL FWLR (Pt 879) 1036. Counsel referred to the queries, the Junior Staff Handbook, the code of conduct and Grievance Procedure to submit that the contract of employment between the Appellants and the Respondent is one of Master and Servant relationship and not one which enjoys the statutory flavour because the conditions for appointment or termination of Appellants’ employment was not governed by any statute. Counsel insisted that the relationship between the Appellants and the Respondent is that of Master/Servant – OLANIYAN V. UNILAG (1985) 2 NWLR (Pt 9) 559, OLAREWAJU V. AFRI BANK PLC (2001) FWLR 2006 (Pt 72) at 6.
He submitted that to determine the nature of employment between the employer and the employee, it is the terms and conditions of the service that should be examined which the lower Court properly did and arrived at the conclusion that the employment was that of master and servant relationship. UDOH V. AKWA IBOM STATE (2014) ALL FWLR (Pt 716) 582 @ 585, BABA V. NIG. AVIATION TRAINING CENTER (1986) 5 NWLR (Pt 42) 516.
He argued that the condition for the Appointment and termination of the Appellant’s employment is not governed by a statute as the Appellants did not state any statute governing the employment and that the Handbook, Code of Conduct and Disciplinary proceedings (Exhibit E – E52 & F – F35) are not statutes to clothe the employment with statutory flavour citing the cases of SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION (1981) 12 NSCC 25, FSCC V. LAOYE (1989) 2 NWLR (Pt 106) 652 in urging us to so hold.
On the Appellants’ contention that the Court did not evaluate exhibits B, H and M (the Query letters together with the Junior Staff Handbook & Code of conduct & Grievance proceeding, it was submitted that they were properly evaluated before the Court arrived at the decision that the Respondent has the right to terminate the simple contract. UDOH V. AKWA IBOM (Supra).
On the submission that the testimonies of the Appellants witnesses were un-controverted, it was submitted that the case of Adebiyi V. Umar (Supra) cited by the Appellant’s counsel which was based an affidavit evidence, is inapplicable here because all the Appellants testified before the Court and only PW1 was cross-examined, urging us to hold that the termination of the Appellants appointment is in order and therefore the Appellants are not entitled to any relief, stressing further that the termination of their appointment was not based on the Disciplinary Panel proceedings but on the Respondents right to do so in accordance with the procedure for termination of employment.
RESOLUTION OF ISSUE 2
The issue here questions the correctness of the lower Court’s holding that the contractual relationship between the Appellants and the Respondent was that of a Master and Servant and that the Appellants failed to prove their claim. The broad issue is whether the learned trial judge appraised the Appellants’ case as pleaded, properly evaluated the evidence both oral and documentary before arriving at its decision.
The complaint is really that of improper evaluation of evidence by the lower Court and the breach of Appellants right to fair hearing.
It is now a common verse and a legal truism that the evaluation of evidence and the ascription of probative value to such evidence is primarily within the precinct or domain of the trial Court which heard, saw and observed the demeanor of the witnesses as they testified in the witness box. See Okoye & Anr vs. Obiaso & Ors (2010) 8 NWLR (Pt. 1195) 145; Lasisi vs. The State (2013) 9 NWLR (Pt. 1358) 74, Yadis Ltd vs. Gnic Ltd (2007) 30 INSCQR 495 at 518 – 519, and where this is evidently done by the trial Court, the Appellate Court which only deals with the cold record will be loath to interfere with the findings or disturb same even where it would have reached a different conclusion, if the decision of the trial Court is supported by evidence on record and is not perverse. See Nguma vs. A. G. Imo State (2014) 7 NWLR (Pt. 1405) 119, Gbileve vs. Addingi (2014) 16 NWLR (Pt. 1433) 394, Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
Therefore, in dealing with a complaint of non-evaluation of evidence by the trial Court, what the Appellate Court concerns itself with is whether ex facie, the trial Court performed its sacrosanct duty of assessing the evidence and correctly ascribing probative value to the evidence and not whether it (the appellate Court) would have arrived at a different conclusion, provided that the evidence on record supports the findings of the trial Court. See Ebba vs. Ogodo (1984) 5 SC 291, at 326. In other words, where evaluation of evidence is borne out from the evidence on record, the Appellate Court should not, in the absence of a perverse finding or conclusion, interfere with the evaluation even if it comes to the conclusion that it would have evaluated the evidence differently.
It is only where and when the trial Court fails to evaluate the evidence at all or properly that a Court of Appeal can intervene and evaluate or re-evaluate such evidence. See Golday Co. Ltd vs. CDB Plc (2003) 5 NWLR (Pt. 814) 586, Ebba vs. Ogodo (supra), Iwuoha vs. NIPOST (2003) 110 LRCN 1622. Consequently, an appellate Court interferes with the evaluation of evidence by the trial Court only where it is shown that the trial Court failed to evaluate the evidence at all or properly; where it made wrong inferences from the evidence or where the decision reached cannot be supported by the evidence or is perverse. See Odutola vs. Mabogunje (2013) 7 NWLR (Pt. 1354) 522. Then and only then can an appellate Court intervene to right the wrong and avert a miscarriage of justice. See Imah vs. Okogbe (1993) 9 NWLR (Pt. 316) 159, Amaremor vs. The State (2014) 10 NWLR (Pt. 1414) 1. Lagos State vs. Adeyiga (supra).
Now, a party like the Appellant who complaints of improper or non-evaluation of evidence and seeks the reversal of the judgment on that ground, is duty bound to identify in detail the piece or pieces of evidence not evaluated or improperly evaluated and in addition, to show convincingly that if the said evidence had been evaluated or properly evaluated, the conclusion reached would have been different and in his favour. See Igago vs. State (1999) LPELR 1442 (SC).
The Appellant raised specific complaints of improper evaluation of (a) the letters of query (exhibits 13, 11, M and the Handbook, the Code of Conduct and Grievance proceedings (exhibits E – E52 and F – F35) which he contends if properly evaluated the lower Court would have found and declared the termination unlawful, and (b) the unchallenged testimonies of the witnesses which if properly evaluated the trial judge would have found that truly the Appellants were not given fair hearing at the disciplinary hearing.
The law is settled that in an action such as this where an employee complains that his employment was wrongfully terminated by his employer, the onus is always on the employee and not on the employer to first and foremost prove (a) that he is an employee of the defendant (b) the terms and conditions of his employment and (c) the way and manner and by whom his appointment can lawfully be terminated. See AMODU V AMODE (1990) 5 NWLR (Pt 150) 356.
Proof of those material facts is a pre-condition to the success of this claim as a contract of service is the bedrock upon which an aggrieved employee can predicate his claim. He succeeds or fails on the terms and condition thereof. The Appellants herein tendered their employment letters, exhibits, A, G.), as well as the Junior Staff Handbook (Exhibits F – F35), the Code of Conduct and Grievance Procedures (Exhibits E – E52) and the letters of termination of their appointment, exhibits C, I & N). The contents are the same except for the difference in the name of the Appellants.
The letter of appointment of the 1st Appellant, Yusuf Shuaibu (exhibit A) at page 22 of the record reads:
“NBC/CHALL/PPM/AA/725/02
6th August 2002
Yusuf Shaibu
Nigeria Bottling Co. Plc.
Challawa Plant.
Dear Sir,
LETTER OF APPOINTMENT
With reference to the recent interview at our Office, we are pleased to offer you employment in our establishment as Sales Assistant with effect from 7th August 2002.
The appointment will be on a monthly salary of N4, 000.00 per month, that is N48, 000.00 forty eight thousand naira only per annum.
You will also be entitled to the following allowances:
Housing Allowance N33, 600.00 Per Annum
Transport Allowance N32, 256.00 Per Annum
Family Medical Allowance N12, 000.00 Per Annum
Utility Allowance N5, 400.00 Per Annum
Leave Allowance 10% of Annual Basic Salary.
You will be on probation for six months after which your service could be made continuous on a report that your work and conduct have been satisfactory during the probation period. On the contrary, your appointment could be terminated as a result of unsatisfactory work and conduct.
The existing rules and regulations as contained in the Company’s Staff handbook and the amendment thereto shall be applicable to you.
This offer automatically lapses if it is not accepted within thirty (30) days with effect from the date of this letter.
Please sign the attached copies of this letter as an indication of your acceptance of the terms and conditions of your employment.
This offer is valid only if you pass medical examination to be conducted by a company doctor.
Yours faithfully,
NIGERIA BOTTLING COMPANY PLC
JABANI NTASIRI
PLANT PERSONNEL MANAGER.”
The letter of termination of appointment of the 1st Appellant which is a replicate of those of the 2nd & 3rd Appellants reads: –
“Our Ref. NBC.CH/HRM/21/6/3/10
June 21st, 2010.
Mr. Joshua Luka (012521 J)
Commecial Basic
Callawa plant
Dear Sir,
TERMINATION OF APPOINTMENT
We regret to inform you that your services with this establishment are no longer required with effect from June 21st, 2010 and are accordingly terminated in accordance with part 11 Article 16 staff handbook.
By a copy of this letter, the Plant Finance Manager is being advised to pay:
1. The amount equivalent of one month basic salary in lieu of notice.
2. Any other entitlement that may be due to you.
Please hand over all company properties in your possession to the undersigned before you collect your entitlements.
Yours faithfully,
For NIGERIA BOTTLING COMPANY PLC.
BATRICK SHIDA
PLANT PERSONNEL MANAGER
Cc PM. CM. PSL. HR Clerk.”
It is clear that by Exhibit A, the terms of employment are governed by the Rules and Regulations contained in the Respondent’s Staff Handbook and the Amendment thereto. The said handbook (exhibit E – E52) is titled “Rules, Regulations and conditions of employment”. It is the contention of the Appellants’ counsel that because the Handbook contains provisions on termination of appointment, dismissal and disciplinary procedure in addition to a Code of Conduct and Grievance procedure which contains the procedure for termination (Exhibit F – F35), the Appellants’ employment was clothed with statutory flavour. Learned counsel argued that it is the Rules and procedure which govern the employment that renders the employment one with statutory flavour.
Now, there are mainly 3 categories of contracts of employment- namely; (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated by statute often referred to as employment with statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt 9) 599, KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (2019) LPELR – 4739 (SC) CBN V. IGWILLO (2007) 14 NWLR (Pt 1054) 393.
In the case of the latter, for a contract of employment to be said to import statutory flavour, two vital elements must co-exist, to wit.
(1) The employer must be a body set up by the constitution or statute and
(2) The statute or regulation made pursuant to the constitution or the principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially, in the matters of discipline. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS V. TOLANI (Supra) at 20 D – G. Per Kekere – Ekun JSC.
In other words, in addition to the requirement that the employer must be a body set up by statute, the stabilizing statute must make express provisions relating to the employment of the staff of the category of its employees in matters of discipline including termination & dismissal of the employees.
It goes without saying that if any of these two conditions is missing, the contract of employment cannot be one with statutory flavour. In other words, it cannot enjoy the special status of the statutory flavour and must be treated as one of simple contract between a master and a servant OLANIYAN V. UNIVERSITY OF LAGOS. Agreed as submitted by the counsel for the Appellants the fact that the employer is a Government or its Parastatal does not automatically cloth the employment with statutory flavour. Indeed the law is that the fact that an employer is a creation of statute does not mean that the appointment of its employees are those with statutory flavour. In other words, being an employee of an employer created by statute does not automatically elevate the status of the employee to that with statutory flavour nor exclude the existence of a master and servant employment. FAKUADE V. OAUTH (1993) 5 NWLR (Pt 291) 47 @ 63, U.N.T.M.B V. NNOLI (1994) 5 NWLR (Pt 363) 376.
The employment can be said to be one with statutory flavour only when it is protected by the statute which makes provisions for the procedure for employment and termination of such employment. See CBN V. IGWILLO (Supra).
Thus, the character of an appointment and the status of the employee in respect thereof is determined not merely by the status of the employer but by the legal character of the employee. Where the contract of employment is determinable by agreement of the parties simpliciter, there is no question of the contract having a statutory flavour. The fact that the other party is a creation of statute makes no difference. This position of the law was reiterated by Muhammad JSC (as he then was, now (CJN) in PHCN V. OFFOELO (2013) 4 NLWR (Pt 1344) 380 in the following words:
“I need only not reiterate the position of the law which has long been settled in a litany of cases that the mere fact that an employer is a creation of statute or that it is a statutory corporation or that the Government has shares in it does not elevate its employment into one of statutory flavour. Rather, there has to be a linkage or nexus between its employee’s appointment with the statute creating the employer or corporation.”
What is clear in all the cases including the case of F.M.C. IDO – EKITI V. Alabi (Supra) relied upon by the Appellants counsel is that the provision, rules and regulations for employment and termination of employment must be made by the statute creating the employment or be contained in regulations derived from statutory provision. The bone of contention here is whether the Respondents’ Junior staff Handbook and its code of conduct and Grievance Procedure (exhibits E – E52, & F – F35 constitute a statute to cloth the employment with statutory flavour. This question has been succinctly answered by the apex Court in the case of OFORISHE V. NIG. GAS CO. LTD (2018) 2 NWLR (Pt 1602) 35 Per Rhodes Vivour JSC when the law lord stated the law thus:
“A contract is one with statutory flavor where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute.”
On the other hand contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are spelt out”.
Speaking on the status of such contracts governed by employee Handbook, the Jurist stated: –
“The master can terminate the service of the employee with, or without reasons, intention and motive for termination of employment is never considered by the Courts. They are irrelevant. Termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with…”
In the case at hand, apart from the handbook and the Code of conduct & Grievance procedure relied upon by the Appellants as the statute, the counsel for the Appellant failed to state, or draw our attention to any specific statute creating the Respondent or a clear provision of that statute governing the contract which makes provisions for appointment and termination of employment of the employees. Contrarily, exhibit A (letter of employment of the 1st Appellant) makes it clear that the terms and conditions of employment are governed or regulated by the Handbook. As earlier stated, a contract whose terms of employment and termination are in a Handbook is classified as an ordinary or simple contract of service between a master and a servant which does not enjoy the statutory flavour. Either party can terminate the contract in accordance with the terms agreed upon. In the case at hand, the provision for the termination of appointment as contained at part ii Article 16 is follows:
“It is fully understood and recognised that the company or employee may terminate the employment without assigning any reason whatsoever by giving the required notice of one month (or pay in lieu) of as may be required by the job grade.”
Having been established that the contract relationship between the Respondent & the Appellants is that of master and servant with mutual liberty to determine the employment, the law is trite that an employer who hires an employee has the corresponding right to fire him at any time and in so far as that was done within the contract of service, the employee has no redress in Law. Similarly, the employee has the corresponding right to terminate or determine at any time the contract of employment between him and his employer and so far as that was done within the terms of the contract of employment, the employer will have no remedy in Law. Thus, under the common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant. This is the nature of a contract of employment which gives either party to the contract the right to bring the employment to an end with or without notice. Therefore the motive which impels either party to lawfully terminate the contract is irrelevant. In this case, the employee’s handbook, Exhibit ‘E – E52’ which formed the basis of the relationship between the Appellant and the Respondent, gives both the Appellant and the Respondent the right to bring the employment to an end subject to one month’s salary in lieu of notice. Therefore, the motive that impelled the Respondent to terminate the Appellants employment is irrelevant as an employee cannot be forced on an employer. Also as correctly argued by the Respondent’s counsel, there is no indication that the termination is predicated on the outcome of the investigation by the disciplinary panel. The respondent merely did so in the exercise of its right to do so, a right which is also available to the Appellants provided they give one-month notice or pay one-month salary in lieu.
It follows that the issuance of the letters of termination of appointment by the Respondent to the Appellants was a legitimate exercise of the employer’s right to terminate the contract of employment. The employees have no remedy in Law. The only situation where a party to a contract of employment can successfully seek remedy in a Court of Law is when the terms of employment are breached. See Idoniboye-Obu V. NNPC (2003) 2 NWLR (PT 805) 589; Mobil Oil (Nig.) Ltd vs. S.T. Assan (2003) 6 NWLR (PT 816) 308. It therefore stands to reason that the Appellants cannot be heard to complain that they were not given a fair hearing as the issue does not arise since their master servant appointments were terminated in accordance with the Handbook, Exhibit E. Thus the Appellants cannot be heard to complain of lack of fair hearing. See Chukwuma vs. Shell Petroleum (1993) 4 NWLR (PT 289) 512.
It is also on record as a pleaded and admitted fact by the Appellants that the Respondent had paid them their one month salary in lieu of Notice though belatedly and also their gratuity which they termed “a token” and made to sign for as their full entitlement, also belatedly (see paragraph 24 of the Statement of Facts).
The Respondent having paid to the Appellants not only their one month salary in lieu of notice but also the calculated accrued benefits which were collected and signed for by the Appellants as the full and final settlement of their claims, the Respondent had discharged its obligation and had no other obligation towards the Appellants. The Appellants complaint of breach of fair hearing would have been of monumental legal effect to their fortunes if the contract had been one flavoured with statutory provision. Not being such a contract that enjoins the statutory flavour but one of master servant relationship, and the contract having not been terminated pursuant to the proceedings of the Disciplinary Panel, the proceedings of the panel cannot be inquired into or form the basis of complaint of violation of fair hearing nor support the Appellants’ complaint of wrongful termination of appointment.
The Appellants’ fourth relief for an order for re-instatement to their jobs and payment of all their entitlements from June 2010 when their appointments where terminated to date is of no moment. The law is trite that where parties to a contract mutually agree that the condition for determination is the giving of notice or payment of equivalent salary in lieu of notice, once the employer gives the notice or pays the equivalent salary in lieu of notice, he has discharged his obligation under the contract. A willing and able employee (servant) cannot be imposed on an unwilling employer (master) and vice versa. Where the employee decides to quit and discharges his obligation by giving the due notice or paying the equivalent salary in lieu of Notice, a willing and mighty employer cannot compel the unwilling employee to remain in his/its employment.
The Appellants’ complaint that the lower Court did not properly evaluate the evidence is not supported by the record. The Court stated at page 206 of the record: –
“The Defendant maintained that in exercising their right to terminate the contract, the Defendant acted on the terms as contained in the Junior Staff handbook marked as Exhibit F – F35 Part III Article 16 of the Exhibit which read…
The learned trial Judge then found:-
The Claimants did not address the above provision in their argument on the same 3rd issue for determination. And it is easy to determine and to hold that this being a Master/Servant relationship the Defendant was at liberty to invoke the said clause. …
And concluded by saying: –
In the instant case, I have found earlier that the Defendant has complied with this stipulation/ provision and there is nothing more to add to the claim of the Claimants. I hold that it lacks merit in the face of the law and the authority cited and the claims are hereby dismissed.”
These findings and conclusion cannot be faulted. They are pukka and I adopt them. On the whole, we find no merit in this appeal. It is hereby dismissed and the judgment of the National Industrial Court of Nigeria, Kano Division delivered on 8/2/2019 in Suit No. NICN/KN/56/2017 is affirmed. Parties shall bear their cost. These shall be the orders of this Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the lead Judgment of my learned brother Wambai JCA, just delivered. The issues have been admirably resolved. I agree with the reasoning and the conclusion reached. I also find no merit in this appeal and I dismiss it. I affirm the Judgment of the National Industrial Court of Nigeria delivered on the 8th February 2019 in Suit No. NICN/56/2017.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
The entire case of the Appellants before the lower Court was predicated on misconceptions of the law regulating the relationship between employers and employees. Their claims were based on a fiction. The Appellants’ contention was their employment with the Respondent enjoyed a statutory flavor and that they were entitled to a right of fair hearing before their employment could be terminated. The Supreme Court has stated and restated that the two vital elements that must co-exist before a contract of employment can be said to have statutory flavor and these are (i) the employer must be a body set up 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- Imoloame Vs WAEC (1992) 9 NWLR (Pt 265) 303, Idoniboye-Obu Vs NNPC (2003) FWLR (Pt 146) 959 at 992, PHCN Vs Offoelo (2013) 4 NWLR (Pt 1344) 380, Comptroller General of Customs Vs Gusau (2017) 18 NWLR (Pt 1598) 353, Kwara State Judicial Service Commission Vs Tolani (2019) LPELR 47539(SC).
In Nnadi Vs National Ear Care Center (2014) LPELR 22910(CA), this Court broke down the meaning of employment with a statutory flavor further when it stated that:
“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated.”
Again, in Texaco (Nig.) Plc Vs Kehinde (2001) 6 NWLR (Pt 708) 224 the Court held:
“An employment is said to have a statutory flavour when the appointment and termination of such employment is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions. Hence such an employment is said to enjoy statutory flavor.”
It is common knowledge that the Respondent, the employer in the instant case, the Nigerian Bottling Company Plc, is a private limited liability company. This is a fact that this Court is entitled to take judicial notice of under Section 124(1) of the Evidence Act. It is not a company set up either by the Constitution of the Federal Republic of Nigeria or by a statute. It was an agreed fact between the parties that the conditions of service of the Appellants were contained in the Junior Staff Handbook and Code of Conduct and Grievance Procedure Rules of the Respondent. These are not regulations made pursuant to the Constitution of the Federal Republic of Nigeria or to a statute. The employment of the Appellants was not employment in the public or civil service of the Federation, States or Local Governments, or in an agency of Government wherein the civil service or public service rules applied or were made relevant or incorporated. The employment of the Appellants did not enjoy any statutory flavor. It was employment in a private limited liability company.
It is trite that a private limited liability company or any employer of labour like the Respondent does not have any obligation to retain the services of any unwanted employee and may terminate the appointment of the employee without any reason. The law is settled that an employer who has the right to hire also has the right to fire. The employer has an unfettered right to terminate the employee’s employment. He may terminate for good or bad reason or for no reason at all. The motive for exercising the right does not render the exercise ineffective- Olarewaju Vs Afribank Nig. Plc (2001) 13 NWLR (Pt 731) 691, Dudusola Vs Nigeria Gas Co. Ltd (2013) 10 NWLR (Pt 1363) 123. What is essential is that the firing must be done in accordance with the terms and conditions of the employment- Garuba Vs Kwara Inv. Co Ltd (2005) 5 NWLR (Pt. 917) 160, Osisanya Vs Afribank (Nig.) Plc (2007) 6 NWLR (pt. 1031) 565, Organ & Ors Vs N.L.N.G. Ltd & Anor (2013) 16 NWLR (Pt 1381) 506, Obanye Vs Union Bank of Nigeria Plc (2018) LPELR 44702(SC).
In other words, in a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual, as in the instant case, a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract. In Fakuade Vs Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt 291) 17, the Court made the point thus:
“But generally speaking, a master can terminate the Contract of employment with his servant at any time and for any reason at all, provided the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the Court will have no business with such motive but only to give effect to the contract of service between the parties.”
Again, in Katto Vs Central Bank of Nigeria (1999) (Pt 607) 390, the Supreme Court reiterated:
“The law is now clear beyond peradventure that in a purely master and servant relationship devoid of any statutory flavour and in which the relationship is purely contractual, termination of an employment by the employer cannot be wrongful, unless it is in breach of contract. Notwithstanding that the employer gave a totally untenable reason for the termination, once he had complied with the terms of the contract, there would be no breach of the contract of employment.”
The terms of employment of the Appellants, in the present case, provided that the company or the employee may terminate the employment without assigning any reason whatsoever by giving the required notice of one month or pay in lieu of, as may be required by the job grade. It was not in contest between the parties that the Respondent paid the Appellants one month’s salary in lieu of notice, together with their gratuity. It is trite that the giving of the agreed or specified period of notice or paying salry in lieu thereof prevents the termination from being wrongful and actionable-Ajayi Vs Texaco (Nig.) Ltd (1987) 3 NWLR (Pt 62) 577, Obot Vs Central Bank of Nigeria (1993) 8 NWLR (Pt 310) 140, Layade Vs Panalpina World Transport Nig. Ltd (1996) 6 NWLR (Pt 456) 544. The Court has no business getting in such circumstances. In Isheno Vs Julius Berger (Nig) Ltd (2008) 6 NWLR (Pt 1084) 582, the Supreme Court held thus:
“Where the employer fires an employee in compliance with the terms and conditions of their contract of employment there is nothing the Court can do as such termination is valid in the eyes of the law. It is only where the employer, in terminating or dispensing with the services of the employee, does so without regard to the terms and conditions of the contract of employment between the parties that problems arise as such termination is usually not tolerated by the Courts and are, without hesitation usually declared wrongful and appropriate measure of damages awarded to the plaintiff.”
The law is also well settled that a servant has no claim to fair hearing if his contract of employment provides for notice or payment in lieu of notice – David-Osuagwu Vs Anambra State (1993) 4 NWLR (Pt 285) 13. Explaining this point, this Court in the case of Angel Spinning & Dyeing Ltd Vs Ajah (2000) 13 NWLR (Pt 685) 532 at 554-555 H-E., per Omage, JCA, stated:
“The appellant has submitted on this issue that there is no provision in the contract of employment of the respondent by the appellant for fair hearing. The requirement for fair hearing is one rounded on the rules of natural justice. It is better applied in a trial. It simply requires that an alleged offender be heard on the complaint made against him. It is my view that the employment of rule of fair hearing in a matter of service between a master and servant is one of a privilege to the servant, not a right. If it were otherwise, the master in a contract of service will cease to have the initiative and control over his employees… In the instant case, the terms of appointment between the parties are well set out, and the written terms for disposal of each other’s service is not made to depend on reasons given or explanation.
It is my view and I so rule that the introduction of requirement of fair hearing into the contracts as determined by the trial Court is an attempt to re-write the agreement for the parties, by imputing into concepts it does not contain… It is therefore wrong in law for the Court below to hold simply because the respondent has alleged that he was not given a fair hearing; to rule that the letter which determined the contract between the parties is wrongful, null and void. It is the duty of the Court to confine itself to the interpretation of the right of both parties as it is contained in the contract of employment between the parties.”
There was no obligation on the Respondent, in the instant case, to give the Appellants any hearing fair or otherwise, before terminating their employments in accordance with the agreed terms of employment: i.e. by paying the salary in lieu of notice.
Further, the evidence before the lower Court showed that the Appellants accepted and collected the salary in lieu of notice and the other monies paid to them by the Respondent, upon the service of the letter of termination, and without any protest. The law, in such circumstances as in this case, is that the Appellants, by collecting the monies, had consented to the termination and the termination is mutual and can no longer be contested or challenged by the Appellants-Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt 9) 599, Ajilore Vs Kwara State College of Technology (1986) 2 SC 371, Morohunfola VS Kwara State College of Technology (1990) 1 NWLR (Pt 145) 506, Guinness Nigeria Ltd Vs Agoma (1992) 7 NWLR (Pt 256) 728. Angel Spinning & Dyeing Ltd Vs Ajah supra.
It is for theses reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the decision contained in the judgment of the National Industrial Court, sitting in Kano, delivered in Suit No. NICN/KN/56/2016 delivered by Honourable Justice E. D. E. Esele on the 8th of February, 2019. I abide the consequential orders made in the lead judgment.
Appearances:
SANI UMAR, ESQ. For Appellant(s)
IBRAHIM BABA SALIU, ESQ. For Respondent(s)
