KWARA STATE JUDICIAL SERVICE COMMISSION & ORS v. MISS YETUNDE ZAINAB TOLANI
(2019) LCN/4803(SC)
In The Supreme Court of Nigeria
On Friday, the 1st day of February, 2019
SC.63/2010
RATIO
DEFINITION OF THE WORDS “WRONGFUL” AND “UNLAWFUL”
The Blacks Law Dictionary, by Bryan A. Garner 8th Edition, page 1644 at page 1574 had defined “WRONGFUL” and “UNLAWFUL” to be thus:- “Wrongful” (i) Characterized by unfairness or injustice, (ii) Contrary to law or unlawful (wrongful termination)” and “Unlawful” ‘(1) Not authorised by law, illegal (2) Criminalty punishabte (3) Involving moral turpitude” PER MARY UKAEGO PETER-ODILI, J.S.C.
CIRCUMSTANCE WHEN A MISTAKE OR ERROR IN A JUDGMENT OR DECISION WILL VITIATE OR AFFECT THE DECISION OR JUDGMENT THEREOF ON APPEAl
…it has to be stated that the references in the lead judgment of the International Treaties and Instruments which the learned Justices had placed reliance on are mistakes or errors, such mistakes can only take such pride of place as to fatally affect the decision on appeal where a miscarriage of justice had occurred on account thereof. This is based on the principle that it is not every mistake or error in a judgment or decision that could vitiate such a decision as the mistake has to be shown to have led to a miscarriage of justice or materially or substantially affected the decision making to have such impact. See Owhonda v Ekpechi (2003) 9-10 SC 1 at 21; Mrs. Jumbo v R. S. H. P. A. D. A. (2005) 5 SC (Pt.11) 102 at 112. PER MARY UKAEGO PETER-ODILI, J.S.C.
WHETHER AN APPELLATE COURT WILL NOT REVERSE A CORRECT DECISION REACHED FROM A WRONG REASON
….an appellate Court such as this Apex one, will not reverse the decision of the Court below simply because the conclusion and decision were reached from a wrong reason. This is so because once the decision is correct the wrong channel or route through which that decision was made would not scuttle the said conclusion. See The State v John Ogbubunjo (2001) 1 SCNJ 86 at 106 per Onu JSC. PER MARY UKAEGO PETER-ODILI, J.S.C.
INGREDIENTS THAT MUST BE PRESENT BEFORE A CONTRACT OF EMPLOYMENT CAN BE SAID TO HAVE 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:- (1) 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. PER MARY UKAEGO PETER-ODILI, J.S.C.
JUSTICES
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
- KWARA STATE JUDICIAL SERVICE COMMISSION
2. HON. JUSTICE TIMOTHY OYEYEPO (CHAIRMAN, KWARA STATE JUDICIAL SERVICE COMMISSION)
3. MRS. OLALERE, SECRETARY JUDICIAL SERVICE COMMISSION
4. ATTORNEY-GENERAL OF KWARA STATE Appellant(s)
AND
MISS YETUNDE ZAINAB TOLANI Respondent(s)
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal or Court below or Lower Court, Coram: Sotonye Denton-West, I. I. Agube, JJCA and C. C. Nweze JCA (as he then was) delivered on the 20th day of January, 2009.
The appellant before this Court were the respondents before the Court below and at the trial Court were plaintiffs while the respondents herein were defendants at the trial High Court presided over by A. A. Adebara J.
The claims of the plaintiff now respondent are stated hereunder, viz:-
“1. A declaration that the purported withdrawal (termination) of the plaintiff’s appointment as Magistrate Grade II with the 1st defendant by the defendants through their letter of 8/2/2005 is without any justification known to law, unlawful, ultra vires, illegal, oppressive, uncivilized, barbaric, vicious, unconstitutional and null and void and of no effect.
2. An order of the Court setting aside the defendant’s letter dated 8/2/2005 purporting to withdraw or terminating the plaintiff’s appointment as Magistrate Grade II with the 1st defendant.
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- A declaration that the plaintiff is still a Magistrate Grade II in the employment of the 1st defendant and she is entitled to be paid salaries, allowances and all entitlements appertaining to and due to the office of a Magistrate Grade II with the 1st defendant.
4. An order reinstating the plaintiff to her position as a Magistrate Grade II with the 1st defendant.
5. An order of the Court directing the defendants to pay to the plaintiff her salaries, allowances and all entitlement as Magistrate Grade II with the 1st defendant with effect from 27/12/2004.
6. An order of injunction restraining the defendants, their servants, agents and privies and other person(s) claiming through or under and or succeeding the defendants from unlawfully and unconstitutionally, withdrawing, terminating and or in any manner or way tempering with, obstructing the commission of the breach, of the plaintiffs appointment at Magistrate Grade II with the 1st defendant.FACTS BRIEFLY STATED:
The respondent herein was employed by the appellant as a Magistrate Grade II. Shortly after her employment, the appellants received a petition from one Abdul-Rasaq Tunde Raji
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alleging that the respondent misrepresented her marital status. The appellant sent the petition to the respondent for her response in line with the rules of fair hearing.
The respondent’s reply was not satisfactory to the appellant who terminated her employment which was still on probation.
The respondent, dissatisfied, approached the trial Court to challenge the termination and or withdrawal of her appointment. The trial Court held inter alia that the termination of the respondent’s appointment was wrongful and she should be paid her salaries, allowances and other entitlements for the period of 27/12/2004 up to 11/2/2005 for which she legitimately worked before her appointment was wrongfully terminated. The 1st appellant herein was also ordered to pay the respondent one month salary in lieu of notice being the reasonable length of notice she would have been entitled to bring her contract of employment with the 1st appellant to the end. Dissatisfied with the judgment of the trial Court, the respondent herein appealed to the Lower Court.
On the 12th day of November, 2011 date of hearing, learned counsel for the appellants and DPP of the
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Ministry of Justice, Kwara State, J. A. Mumini Esq. adopted the brief of argument of the appellants filed on the 24/6/2011 in which were raised three issues for determination, viz:-
a) Whether the Lower Court was right to have come to the conclusion that the appointment of the respondent was terminated on account of her marital status. (This relates to Ground 1 of the appellant’s Ground of Appeal).
b) Whether the Lower Court was right to have held that the employment of the respondent is one clothed with statutory flavour. (This relates to Ground 2 of the appellant’s Grounds of Appeal).
c) Whether the learned Justices of the Court of Appeal were right to have reinstated the respondent in the circumstances of this case.
(This relates to Ground 3 of the appellant’s Grounds of appeal).
Learned counsel for the respondent, Salman Jawondo Esq. adopted the brief of argument of the respondent filed on 11/10/2011 and in turn identified two issues for determination which are as follows:-
1. Whether or not the Lower Court was not right in its decision that the termination or withdrawal of the respondent’s employment by the appellants on
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ground of misrepresentation of her marital status was unlawful and therefore void.
2. Whether or not the Lower Court was not right in holding that the respondent’s employment enjoyed statutory flavour and she is therefore entitle to re-instatement.
I shall utilise the third issue of the appellant, Issue (c) in the determination of this appeal.
ISSUE C:
Whether the learned Justices of the Court of Appeal were right to have reinstated the respondent in the circumstances of this case.
Learned counsel for the appellant contended that the Court below reached a conclusion not supported by the evidence before the trial Court as both oral and documentary evidence showed a temporary appointment as Magistrate Grade II by virtue of Exhibit 1, a petition in the form of Exhibits 10, 4, 5, 6, and 9 etc. That the peculiar circumstance of the nature of the respondent’s employment does not cloth same with statutory flavour.
Mr. Mumini of counsel for the appellant stated on that the fact that an organization or authority which is an employer like the 1st appellant herein is a statutory body does not mean that the conditions of service of its
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employees must be of a special character ruling out the incidence of a mere master and servant relationship as the Court must confine itself to the terms and contract of service between the parties. He cited Adegbite v College of Medicine UNILAG (1973) 5 SC 149; NPMB v Adewumi (1972) 1. All NLR (Pt.2) etc.
That the meaning, import and consequence of an employment clothed with statutory flavour have been clearly elucidated by the Supreme Court in Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (380) 467 at 664.
Learned counsel for the appellant submitted that the burden of proof of the nature of the employment and the terms of notice required for termination are the onus placed on the plaintiff/respondent which she must establish before being entitled to judgment and this the respondent failed to do. He cited Momoh v CBN (2007) All FWLR (Pt.395) 420 at 439.
Learned counsel for the respondent, Salmon Jawondo Esq. stated that the Court of Appeal was right in holding that the withdrawal or termination of the respondent’s employment by the appellant’s on ground of misrepresentation of her marital status is unlawful and therefore null and void. That
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an appellate Court such as the Supreme Court will not reverse the decision of a Lower Court on the ground that the reasons are not correct once the conclusion or decision is correct. See the State v Ogbubunjo (2001) 1 SCNJ 86 at 106.
That the correct meaning of employment with statutory flavour is shown in the case of Imoloame v West Africa Examination Council (1999) 9 NWLR (pt. 265) 303 and from that can be seen that the 1st appellant is a creation of the Constitution and the respondent’s employment clothed with statutory flavour and not master and servant. He cited the case of the Registered Trustees of the Planned Parenthood Federation of Nigeria v Dr. Jimmy Shogbola (2005) 1 WRN 153 at 171-172; E.P. Iderima v Rivers State Civil Service Commission (2005) 7 SC (pt.11) 135 at 151 etc. That the appeal should be dismissed.
The stance of the appellant stems from the following points, that the Lower Court was wrong to have held that the appointment of the respondent was withdrawn because of her marital status and the appointment of the respondent does not enjoy statutory flavour and so the respondent was not entitled to reinstatement.
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On the other hand, the respondent took the position that the employment with the appellant was neither temporary nor probationary as it was clothed with statutory flavour and so the ‘withdrawal’ or termination of the respondent’s appointment by the appellants vide Exhibit 5 is not only wrongful but also unlawful being in violation of the Judicial Service Commission Regulations 1980 and so respondent was entitled to re-instatement and the other reliefs granted by the Court below.
On the divergent stand-points of the two Courts below, I shall go to pages 117-121 of the record to quote what the learned trial judge said and it is as follows:-
“No doubt, in the law of Master and Servant, employment falls into three categories, viz: (1) A pure Master and Servant relationship under common law;
(2) employment where office is held at pleasure and
(3) employment protected by statute. See IDERIMA v RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 SC (Pt.111) 135 at 151; RIDGE v BALDWIN & ORS (1964) A C 40; OLAREWAJU v AFRIBANK (NIG.) PLC (2001) 7 SC (Pt.111) 1, (2001) 13 NWLR (Pt.731) 691 at 705; Olaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599. With regard to
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the instant case, one may be tempted to hold that claimant comes under the third category i.e. the employment protected by statute apparently because that 1st defendant is a creation of constitution. See Section 197 and Part II of the Third Schedule to the Constitution of Federal Republic of Nigeria, 1999. See also the case of Ziideeh v Rivers State Civil Service Commission (2001) FWLR (Pt.460 821 at 825-826. In the case of Imoloame v West African Examination Council (1992) 9 NWLR (Pt.265) 303 at 317, Karibi-Whyte JSC dealing with when an employment is said to be clothed with statutory flavour said:-
“…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 regulations, derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”.
See also Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 1004; Shitta-Bey v Federal Civil Service Commission
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(1981) 1 SC 40; Olaniyan v University of Lagos (2001) FWLR (Pt.56) 808; (1985) 2 NWLR (Pt.9) 599; Eperokun v University of Lagos (1986) 4 NWLR (Pt.24) 162; Professor Dupe Olatunbosun v Niser (supra); Dr. Bamgboye v University of Ilorin (1999) 10 NWLR (Pt.622) 290.
However, it should not be mistaken that once a company, corporation or government agency is set up by statute, all the employees thereof ipso facto became children of statute to the extent that their individual agreement of service with the employer automatically becomes contract with statutory flavour. Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavour includes the following:-
1. The employer must be a body set up by statute.
2. The stabilizing statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.
See in this regard Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 992; Salami v New Nigerian Newspaper Ltd (1999) 13 NWLR (Pt. 634) pg 315; CBN v Archibong (2001) FWLR (Pt.58) 1032 at 1056; Udemah v Nigerian Civil
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Corporation (1991) 13 NWLR (Pt.180) 477; Fakuade v O.A.U Complex Management Board (1993) 5 NWLR (Pt.291) 47. I observed in the instant case that the stabilizing statute i.e. the constitution did not make express provision regulating the employment of the staff of the category of the claimant. However, the Kwara State Judicial Service Commission Regulations 1980 which seems to make regulations to regulate the employment of staff of the category of the claimant did not expressly contain all necessary and clear provisions regarding the procedure for employment and discipline of the employees of 1st defendant. For instance, there is no provision regarding length of notice for terminating the appointment of the category of various staff or provisions for payment of requisite equivalent month’s salary in lieu of notice. It is therefore my view that before an employment could be said to be governed by statute and afortiori clothing the employee with statutory flavour, the detailed procedure for employment and discipline of employees must be clearly and expressly spelt out, otherwise the employment could not be said to be governed by statute and covered with statutory
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flavour but the employment be governed by terms under which the parties agreed to be master and servant. In this respect the observation of the Supreme Court per Belgore ]SC (as he then was) in Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt.380) 467 at 664 is apt. It merits my respective quotation in extenso. Said the learned justice of the Supreme Court:-
“Except in employment governed by statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other termination inconsistent with the relevant statute is null and void and of no effect examples are many especially with modern constitutional and statutory trends. (University of Lagos Act, 1962; Section 13 (2), 18 (e) and 61 under cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes
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only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for wrongful dismissal. This is based on the notion that no servant can be imposed by Court on an unwilling master even where the mater’s behaviour is wrong. For his wrongful act, he is only liable in damages and nothing more. Union Beverages Ltd v Owolabi (1988) 1 NWLR (Pt.68) 128″. (Underlining mine).
See also Ziideeh v Rivers State Civil Service Commission (2001) FWLR (Pt.46) 821 at 828-829; Garba v Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 499; Shitta-Bey v Federal Civil Service Commission (supra); Iderima v Rivers State Civil Service Commission (2005) 7 SCNJ 493 at 505.
In view of all the above particularly with regards to the fact that the procedure for employment and discipline of an employee be clearly and expressly spelt out, can one still agree with the claimant’s counsel submission that since the employment of claimant is governed by statute and afortiori one covered with statutory flavour and once it is shown that the termination is wrongful, null and void, he is entitled to be reinstated I am afraid that having
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read the entire 19 paragraphed statement of claim of the claimant, there is no where she pleaded that her appointment is covered with statutory flavour. Having not pleaded it, the submission arising from it is of no consequence. Even though it is agreed that Kwara State Judicial Service Commission Regulation, 1980 applies to the claimant, there is also nowhere in the claimant’s pleading where it is pleaded that any of the provision relating to termination of her employment stated therein has been breached. What is more, the Regulations did not contain detailed, clear and express provisions dealing with appointment and discipline of the claimant as stated earlier in this judgment. From all the above, I am unable to hold as submitted by the claimant’s counsel that the claimant appointment is clothed with statutory flavour and therefore entailed to an order of reinstatement. It is for this reason that it was held earlier that the termination of the claimant’s appointment by the 1st defendant is only wrongful. It is not unlawful termination as the two are not the same. In wrongful termination or dismissal, the termination/dismissal is complete and the defendant is
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only liable in damages, while in unlawful termination/dismissal, there is no such termination or dismissal at all as it would be pronounced null, void. See Imoloame v WAEC (supra) at 305; Kabelmetal (Nig.) Ltd v Ativie (2001) FWLR (Pt.65) 662 at 674-,675”.
The learned Justices of the Court of Appeal saw it differently when their Lordships held thus on page 171 of the record:-
“In like manner, the appellant in the instant appeal is involved in public duties of serving as a Magistrate appointed by the Kwara State Judicial Service Commission to all intent and purpose is a public servant who is removed in a flagrant contravention of the rule governing her appointment, which though not defined to her at the time she was appointed, it is however clear that the 1st respondent being a creature of the constitution, is indeed a statutory organization and the appellant’s employment is liable to enjoy a statutory flavour more especially as the officer concerned is also a senior officer within the cadre of the officers appointed by the 1st respondent. See Section 197, Pt.II of the Third Schedule to the Constitution of the Federal Republic of Nigeria and also
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Section 318 of the 1999 Constitution stipulates that a magistrate is a senior public officer”.
At page 162 of the record is seen the views of the Court of Appeal as follows:-
“Whilst I support the two issues formulated for determination, l am of the view that the crux of the Kernel of the circumstances that lead to the existence of the termination of the appellant in itself vis–vis her employment is her marital status and indeed her termination was due to that fact. Her marital status is not property addressed but is swept under the carpet whilst there was preoccupation with employment that is either clothed with statutory flavour or otherwise because of the issue of withdrawal of her appointment by the respondent being wrongful and not unlawful.”
At this stage, what I see as common ground from which there are no disputes are that the appellants employed the respondent as Magistrate Grade II on Grade Level 10 and the appellants acting on a petition allegedly written by an unknown, and unidentified individual named Abdul-Rasak Tunde Raji “withdrew” or terminated the respondents’ appointment on the ground of alleged
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misrepresentation of her marital status in Exhibit 9. Also not in dispute sequel to the admission of the sole witness of the appellants, DW1, Secretary of 1st appellant that the marital status of an applicant for the position of magistrate is not a factor for consideration for such appointment but the appellants had relied on the application form, Exhibit 9 filled by the respondent wherein she had stated her marital status to be ‘single’ and the petition by the unknown Abdul-Rasak Tunde Raji who did not appear before the appellant in substantiation of the petition.
The contention of the appellants is that the respondent was removed not on the ground of misrepresentation of her marital status but on the ground that she lied on oath, the form Exhibit 9 she filled having been attested to by a Commissioner of Oaths. This stand of the appellants is quite intriguing as appellants said they had the respondent removed based on the lie of her marital status which matter of ‘lie’ was a conclusion that came from the petition from an unknown source and so the trial Court found that the allegation of telling lies on oath being a criminal offence required proof beyond
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reasonable doubt and this finding was not the basis of an appeal by the appellants. That failure of the required proof, the Court of Appeal had no difficulty in holding that the removal of the respondent by the appellants on an unsubstantiated ground was wrongful and unlawful.
The Blacks Law Dictionary, by Bryan A. Garner 8th Edition, page 1644 at page 1574 had defined “WRONGFUL” and “UNLAWFUL” to be thus:-
“Wrongful” (i) Characterized by unfairness or injustice, (ii) Contrary to law or unlawful (wrongful termination)” and
“Unlawful” ‘(1) Not authorised by law, illegal (2) Criminalty punishabte (3) Involving moral turpitude”
The definitions above are so weighty that they cannot, applying as in this case at hand be treated with levity, or in a simplistic manner and so since the words ‘wrongful’ and “unlawful” are ingrained within the termination or withdrawal from service of the respondent by the appellants, there is no escaping the fact that the complaint by the accusers or appellants must be ventilated in public wherein the respondent would be assured of a fair trial and the necessity for a prior judicial determination before the
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termination or withdrawal of the service could be visited on her as what she is accused of in the matter of lying on oath is a commission of a criminal offence and it must be dealt with according to law. I am fortified in the case of I. H. A. B. U. H. M. B. v ANYIP (2011) 5 SC (Pt.1) 54 at 66, 67; F.C.S.C. v Laoye (1989) 2 NWLR (Pt.106) 652 at 706-707.
The appellants are inviting this Court to interfere in the decision of the Court of Appeal because that Court had made reference to International Treaties in reaching its decision.
On that, it has to be stated that the references in the lead judgment of the International Treaties and Instruments which the learned Justices had placed reliance on are mistakes or errors, such mistakes can only take such pride of place as to fatally affect the decision on appeal where a miscarriage of justice had occurred on account thereof. This is based on the principle that it is not every mistake or error in a judgment or decision that could vitiate such a decision as the mistake has to be shown to have led to a miscarriage of justice or materially or substantially affected the decision making to have such impact.
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See Owhonda v Ekpechi (2003) 9-10 SC 1 at 21; Mrs. Jumbo v R. S. H. P. A. D. A. (2005) 5 SC (Pt.11) 102 at 112.
Again for emphasis is that an appellate Court such as this Apex one, will not reverse the decision of the Court below simply because the conclusion and decision were reached from a wrong reason. This is so because once the decision is correct the wrong channel or route through which that decision was made would not scuttle the said conclusion. See The State v John Ogbubunjo (2001) 1 SCNJ 86 at 106 per Onu JSC.
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:-
(1) 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.
It can be seen undoubtedly that the two ingredients are present in the
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employment under discourse.
1. 1st appellant is a creation of Section 197 (1) (c) of and Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 by virtue of which 1st appellant is vested with the power to appoint, dismiss and exercise disciplinary control over its staff including magistrates.
2. The 1st appellant, pursuant to the powers conferred on it by Paragraph 6 (c) of Part II of the Third Schedule to the Constitution made the Kwara State Judicial Service Regulations 1980 which among other things regulate the appointments, promotion, dismissal and disciplinary measures against the employees of the 1st appellant such as Magistrates.
3. The appellant was appointed a Magistrate Grade II on Grade level 10 by the 1st appellant vide a letter of 23/12/04 which appointment the respondent accepted by letter of 24/12/04 and she accordingly assumed duties on 27/12/04.
4. The office or position of a Magistrate is a creation of the combined effect of the provisions of Section 197 (1) (c) of the 1999 Constitution and Part II of the Third Schedule thereto, Sections 4 and 8 of the Criminal Procedure Code Law, Cap
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43, Laws of Kwara State 1994.
5. The office or position of a Magistrate is of a permanent nature with its functions, duties and powers defined or prescribed by Sections 9, 10, 12 (1) 13, 15, 16, 17 and Appendix ‘A’ to the Criminal Procedure Code Law of Kwara State Cap 43, Laws of Kwara State 1994.
6. By virtue of (3) (4) and (5) above, the respondent is a Senior Staff of the appellants.
7. As a Senior Staff with the 1st appellant, which is a creation of Constitution, the respondent, as a Magistrate is a Public Officer as defined by Section 318 (1) of the 1999 Constitution.
8. I agree with learned counsel for respondent that from the above highlighted undisputed facts, it is clear that the respondent’s employment is clothed with statutory flavour. I refer to the case of The Registered Trustees of the Planned Parenthood Federation of Nigeria v Dr. Jimmy Shogbola (2005) 1 WRN 153 at 171-172:-
“The three factors that must co-exist to constitute a public office namely that the office was created by the Constitution, statute or other enabling legislation, secondly that its function, duties and powers are as defined by law and other
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regulations; and thirdly, that the position must show some permanency.
“A public officer is one in the public service of the government of the Federation or State and as defined under the heading ‘Public Service of the Federation’ or of the State as per Section 277 (1), (a), (b), (c), (d), (e), (f), (g) of 1979 Constitution”.
Clearly the relationship between the appellants and the respondent, a Constitutional body, is neither one of master and servant relationship under 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. 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,
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Olarewaju v Afribank (Nig.) Ltd (2001) 7 SC (Pt.III) (2001) 13 NWLR (Pt.731) 691 at 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 (1999) 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. They accordingly enjoy statutory flavour”.
That said, one is reminded that the appellants
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based their action of “withdrawal” or termination of the respondent’s employment on Section 72 of the Kwara State Judicial Service Regulations 1980 which was the basis of the finding of the trial Court as seen at page 116 of the Record thus:-
“Therefore, the provision of Section 72 of the 1st defendant Regulations, 1980 which said that any person that obtains appointment under the Regulations by making false statement or concealing any material fact which if disclosed will militate against his being offered the appointment may be liable to dismissal is inapplicable to the claimant. Therefore, the 1st defendant could not have dismissed the claimant assuming it is even true that she misrepresented herself as being a spinster instead of being a married woman since marital status is not a condition for her employment as a Magistrate based on DW1 evidence”.
The trial Court on page 106 of the record of appeal held that: “The conclusion which I reach therefore is that the claimant was not on a probationary or temporary appointment”.
Indeed there is no need belabouring the situation from the totality of the facts pleaded, evidence adduced and the
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findings of the two Courts below which I have copiously quoted for avoidance of doubt that the said employment was regulated by statute and constitution including the Kwara State Judicial Service Commission Regulations 1980 and so was properly clothed with statutory flavour and the justice of the case impels a re-instatement to service as ordered by the Court of Appeal. See University of Ilorin Teaching Hospital Management and Anor v Mr. S. B. Ajide (2005) 15 WRN 113 at 134; CBN v Igwillo (2004) 5 SCNJ 52 at 67-69.
The conclusion as I see it is that there is no sporting chance to accede to what the appellants are urging the Court as the Court of Appeal rightly made its findings from which it came to the correct conclusion that the respondent had a raw deal and that Court had no hesitation in saying so as I see no ground to go against what the Lower Court did.
This appeal lacks merit and I have no difficulty in dismissing it as I affirm the decision and orders of the Court of Appeal.
I make no orders as to costs.
Appeal Dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: I read before now the leading judgement of
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my learned brother, Mary Ukaego Peter-Odili JSC whereby my learned brother found no merit in the appeal and dismissed same. I entirely share the views expressed in the leading judgement.
The respondent was employed by the Kwara State Judicial Service Commission as a Magistrate Grade ll. But following a petition written by one Abdulrasak Tunde Raji that she was married which she and her father, Chief Lamidi Adeshina Tolani, vehemently refuted her appointment was withdrawn.
And when her plea for a review of the withdrawal of the appointment fell on deaf ears, she filed an action in Court seeking a nullification of the withdrawal of the appointment and her reinstatement as well as payment of her salaries, allowances and all entitlement as Magistrate Grade II with effect from 27 December, 2004. She partially succeeded at the High Court and appealed further to the Court of Appeal and her appeal was allowed; hence the further appeal by the respondents/appellants to the Supreme Court.
The appellants have strenuously argued that the withdrawal of the respondent’s appointment is not due to her sex but for failure to declare her marital status. But when
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DW1, who was Secretary of the Kwara State, Judicial Service Commission was cross-examined, she admitted that marital status is not a consideration for appointment as a Magistrate. It becomes very baffling that her non disclosure of her marital status constituted enough reason to terminate her appointment.
The appellants had no justifiable reason for terminating the appointment. The decision taken by the Kwara State Judicial Service Commission smacks of petty mindedness. She was not employed to superintend a Novitiate and so the action taken by the appellants was clearly illegal.
This appeal has no merit and deserves to fail. It is accordingly dismissed
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, MARY PETER-ODILI, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. In support of the judgment, I shall comment briefly on the nature of the respondent’s employment, as it is relevant to the remedy she is entitled to.
The various categories of contracts of employment were held by this Court in
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C.B.N Vs Igwillo (2007) 4-5 SC 154 @ 172 lines 25-40 to be as follows:
“The law is settled that there are now roughly three categories of contracts 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 Vs 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 Vs WAEC (1992) 9 NWLR (Pt 265) 303; Shitta-Bey Vs 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:
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Comptroller General of Customs & Ors. Vs Gusau (2017) 4 SC (Pt.II) 128; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290.
The Kwara State Judicial Service Commission is established pursuant to Section 197 (1) (c) of the 1999 Constitution, as amended and Part II of the Third Scheduled thereto. By virtue of Paragraph 6 (c) of Part II of the Third Schedule, the powers of a State Judicial Service Commission include the power to appoint, dismiss and exercise disciplinary control over the Chief Registrars, Deputy Chief Registrar of High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts, and Customary Courts and all other members of the staff of the Judicial Service of the State not otherwise specified in the Constitution.
Pursuant to the powers conferred on it by the aforesaid Paragraph 6(c) of Part II of the Third Schedule, the 1st Respondent enacted the Kwara State Judicial Service Regulations 1980.
By her letter of appointment dated 23/12/2004, the respondent was appointed Magistrate Grade II on Grade Level 10. Section 8 of the Criminal Procedure Code of Kwara State, Cap. 43 Vol.1, Laws of Kwara
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State of Nigeria, 1994 provides for the cadre of magistrates. The respondent falls within Section 8 (f), that is, magistrate of the second grade. Sub-section (2) of Section 8 provides that the Judicial Service Commission may appoint any person to the office of magistrate while Sub-section (3) provides that such appointment shall be made in compliance with the provision of the Constitution and “of any legislation made in accordance therewith”.
I agree with learned counsel for the appellant that being a magistrate Grade II on Grade Level 10, the respondent is a senior staff of the 1st Appellant and a public officer as defined by Section 318 (1) of the 1999 Constitution. I am therefore not in any doubt that her employment was one with statutory flavour. The termination or withdrawal of her employment could only be done in strict compliance with its regulations guiding such matters.
It is noted that the trial Court found and held that the withdrawal of the respondent’s employment was wrongful but not unlawful. The lower Court, in my view got it right when it held at page 271 of the record.
“I am of the view that having found that Section 72 of the
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regulations did not avail the respondents, the unlawful and unconstitutional termination of the appellant had been established since the statutory or due process for her termination were not followed and indeed the reasons for such termination was untenable in law.
What then are the consequences of the illegal and unconstitutional act of the Respondents In Hart Vs Military (Governor of Rivers State (1976) N.S.C.C. (vol.10) 222; the Supreme Court re-echoed what was said in Shitta Bey’s case (1981) 1 SC (Reprint) 26 at 34, when the Military Governor of Rivers State purported to remove Hart from the Public Service of Rivers State as Permanent Secretary in spite of the powers conferred on the State Public Service Commission to do so. Fatai-William J.S.C. succinctly put it thus:
“There is no doubt that what the Military Governor did in the case in hand was ultra vires his constitutional powers. This renders his order that the appellant should be retired from the public service a nullity.”
See again U.B.N. (NIG) Ltd VS Ogboh (1995) 2 NWLR (Pt.360) 647 at 669; where it was held also that the plaintiff employment being one with statutory flavour it can
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only be terminated in the manner prescribed by the relevant statute and any other contrary manner of termination is null and void ab inito.
Having declared that the withdrawal or termination of the Appellants employment is null and void as same was ultra vires the powers of the commission/1st Respondent, the effect is that the Appellant is entitled to return to her duty post. This brings me to the issue of reinstatement which the lower Court ought to have made as prayed in relief 4 of the statement of claim, in view of the finding that Section 72 of the Regulations did not avail the Respondent.”
The view expressed by the lower Court on the reinstatement of the respondent is in line with numerous decision of this Court to the effect that where an employees service is protected by statute and it is wrongfully terminated (or withdrawn, as in this case), he would be entitled to reinstatement See:C.B.N. Vs Igwillo (supra), Shitta-Bey Vs The Federal Public Service Commission (supra), Olaniyan Vs University of Lagos (supra), to name a few.
The respondent’s marital status, not having been shown to be a precondition for her employment under regulation
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72 of the 1st Respondent’s regulations, the withdrawal or termination of her employment on the ground that she had lied about same, was ultra vires, null and void. She is therefore entitled to an order of reinstatement as ordered by the lower Court.
It is for these and the further reasons stated in the lead judgment that I find this appeal to be unmeritorious. The judgement of the lower Court is hereby affirmed.
I abide by the order for costs as contained in the lead judgment.
AMIRU SANUSI, J.S.C.: I have had the opportunity of reading before now, a forward copy of the lead Judgment in this appeal earlier supplied to me by my learned brother Mary Ukaego Peter-Odili, JSC.
On reading the said Judgment, I find myself in accord with the reason and conclusion reached that this appeal should be dismissed for want of merit. All the salient issues canvassed by the parties’ learned counsel were adequately addressed. I have nothing useful to add except to also dismiss the appeal having agreed with the reasoning and conclusion reached therein
EJEMBI EKO, J.S.C.: My learned brother, MARY UKAEGO
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PETER-ODILI, JSC, before now had made available to me, in draft, the judgment just delivered. It represents my views in the appeal and I hereby adopt it.
The Judicial Service Commission (JSC) of Kwara State established pursuant to or by Section 197 of the 1999 Constitution, as amended, is not just a mere or ordinary State Executive Body. Its duty to act responsibly is adumbrated by Section 202 of the same Constitution that charges it, to wit –
In exercising its power to make appointment or to exercise disciplinary control over persons,… the State Judicial Service Commission – shall not be subject to the direction and control of any other authority or person.
This great responsibility thrusted on it is reflected by the calibre of men and women that its membership is comprised of, as can be seen from Paragraph 5 of Part IIB of the Third Schedule to the Constitution. Paragraph 6 (C) of Part IIB of the Third Schedule to the Constitution defining the power of the JSC provides, inter alia –
The Commission shall have power –
(c) to appoint, dismiss and exercise disciplinary control over Magistrates – and all other members of the staff of
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Judicial Service of the State not otherwise specified in this Constitution.
The mere vesting in the JSC by the Constitution the power to exercise disciplinary control over Magistrates and/or other officers mentioned in Paragraph 6(C) of the Third Schedule thereto connotes the intention of the makers of the Constitution that the JSC, in exercising its power to dismiss or discipline, is a quasi-Judicial body. The Public Service Commission of Mid-Western Nigeria vested similar powers of disciplinary control over Public Servants was in WILSON v. A.G. BENDEL STATE (1985) LPELR – 3496 (SC) held obligated to observe the principles of natural justice in the exercise of its disciplinary powers. It is trite that a body as the JSC that is by law imbued legal authority either to discipline others or to determine any question affecting the civil rights and obligations of individuals is said to exercise judicial functions: LPDC v. CHIEF GANI FAWEHINMI (1985) LPELR – 1776 (SC); A.G. v. RYAN (1980) 2 WLR 143.
Perversity is not an accepted attribute of any judicial or quasi-Judicial body. A decision is said to be perverse when the trial body, as the JSC, takes into
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account matters which it ought not to take into account in its decision, or where its decision is against the weight and trend of evidence, or when the decision taken is spurious and unreasonable: ATOLAGBE v. SHORUN (1985) LPELR – 592(SC).
The Respondent’s appointment as a Magistrate was terminated on the ground that she lied on oath in her application Form, Exhibit 9, wherein she stated that she was “SINGLE” for her marital status. The only basis for the finding by the Appellant that the Respondent lied on oath in Exhibit 9 was the unsubstantiated allegation, contained in an anonymous petition authored by a faceless character named “Abdul-Rasak Tunde Raji”, that the Respondent misrepresented her marital status in Exhibit 9. The JSC, the Appellant, through her Secretary the DW1, admitted in his testimony that marital status of an applicant for the position of Magistrate was not a material fact for consideration for such appointment. The Appellant nonetheless relied on such irrelevancy, by their own admission, to terminate the appointment of the Respondent as a Magistrate. In so doing they jettisoned the very basic rule of common sense or logic that what
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is alleged without proof can be denied without proof. Sections 134 (1) and 135 (now Sections 131 (1) and 132) of the Evidence Act, 2004 placed the burden of proving a fact asserted on the party alleging it. It is most preposterous and very perverse for the Appellant in their decision to terminate the Respondent’s appointment to rely on the unfounded rumour peddled by an anonymous petitioner, Abdul-Rasak Tunde Raji. That is what made their decision very unreasonable, particularly in the face of the undiscredited evidence marshaled by the Respondent in her defence, even though she was under no obligation to rebut what had not been proved or substantiated against her. The JSC had definitely let down not only the Respondent, but the entire body of the Magistrates holding their appointment and discharging their functions under it, who fervently looked up to their employer for support and protection in their arduous and hazardous lines of duty.
I find no substance in this appeal. I hereby affirm the decision of the Court of Appeal. Appeal dismissed.
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Appearances:
A. Mumini (DPP, Kwara State) with him, A. B. Daramola, Esq. For Appellant(s)
Salman Jawondo with him, Abduwasiu Lawal and Andrew Apeh For Respondent(s)
Appearances
A. Mumini (DPP, Kwara State) with him, A. B. Daramola, Esq. For Appellant
AND
Salman Jawondo with him, Abduwasiu Lawal and Andrew Apeh For Respondent
