NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS V. MRS T. O. AYANFALU
(2006)LCN/2001(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of May, 2006
CA/L/364/2001
RATIO
COMPANY LAW: STATUS OF AN ARTIFICIAL PERSON SET UP BY THE STATE TO PERFORM FUNCTIONS OF A PUBLIC NATURE
The appellant is an institute created by the Nigerian Institute of International Affairs Act Cap 311 Laws of the Federation of Nigeria 1990. It is a body corporate vested with defined public functions. It is an artificial person. It is now settled law that an artificial person set up by the state to perform functions of a public nature is “a person” within the contemplation of the provisions of the Public Officer Protection Act – See Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 534) 1. PER AGBO, J.C.A.
LIMITATION LAW: WHETHER THE PUBLIC OFFICERS PROTECTION ACT IS A LIMITATION STATUE
Public Officers Protection Act is a limitation statute. It is a special defence like fraud estoppel, res judicata and such like other defences which defence must be specifically pleaded by a defendant before the defence can rely on it in any proceeding. This is so to avoid taking the plaintiff by surprise. A limitation statute is not to be used to ambush the other party. Where such a defence is not pleaded by the defence in its statement of defence in the court of first instance, the defendant can neither raise it nor rely on it on appeal See Kano v. Oyelakin (1993) 3 NWLR (Pt. 282) 399; Yassin vs Barclays Bank (1968) 1 All NLR 171; Mobil Oil (Nig.) Ltd v. Coker (1975) 3 SC 175; Oline v. Obodo (1958) 5 SCNLR 298; F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281; Anyaorah v. Anyaorah (2001) 7 NWLR (Pt. 711) 158. PER AGBO, J.C.A.
JUSTICE
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
Between
NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS Appellant(s)
AND
MRS T. O. AYANFALU Respondent(s)
AGBO, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal had at the Lagos High Court sitting at its Lagos Division claimed of the appellant in suit no. LD/476/94 in paragraph 15 of the statement of claim as follows:
“15 The plaintiff therefore, claims against the defendant that the letter dated the 26th day of October, 1993 in so far as it purports to terminate plaintiffs appointment with the defendant, before the consideration of her representations to the council, is invalid, procedurally irregular, void and of no effect.”
The parties exchanged pleadings. The defendant counter claimed of the plaintiff as follows:
“1 The sum of (N60,000) per month being the mesne profit of the said premises situate at 22, Idejo Street Victoria Island, Lagos from 1st February 1994 until possession is delivered up.
Alternatively:
2. The sum of N60,000 per month as damages for use and occupation of the premises situate at the said 22, Idejo Street, Victoria Island, Lagos From 1st February, 1994 until possession is delivered.”
“The parties led evidence in proof of their averments in their pleadings and thereafter filed written addresses. The court in a considered judgment avoided the letter of termination dated 26th October, 1993, ordered the reinstatement of the plaintiff as Chief Accountant dismissed the defendant’s counter claim and awarded N5,000 costs to the plaintiff.
Being dissatisfied with this judgment, the defendant filed this appeal.
The grounds of appeal are set down hereunder:
Grounds of appeal
“1. The learned trial judge has no jurisdiction to entertain the respondent’s action.
Particulars of error
(a) The respondent’s cause of action, that is, letter of termination was dated 26th October, 1993.
(b) The respondent by her writ of summons instituted the action, the subject matter of this appeal on 27th January, 1994.
(c) The suit of the respondent at the lower court was instituted three months after the act complained of, time within which to commence the action having expired on 25th January 1994.
(d) By virtue of Section 2 (a) of Public Officer Protection Act Cap 379, Laws or the Federation 1990, the action of the respondent was statute-barred in that it was not commenced with three months next after the act complained of.
2. The learned trial judge misdirected himself on the facts when he held that the respondent was wrongfully terminated since she was not allowed to appeal to the Council from the decision of the Appointment and Promotions Committee before her appointment was terminated.
(3) The learned trial Judge erred in law when he held thus:
“I am in agreement with the opinion expressed by the plaintiff’s counsel in his written address to the effect that if the appeal is after the termination of appointment, it would mean that non-staff would have a right of appeal, it is a matter of simple logic that once the appointment of a member of staff is terminated, he/she ceases to have the capacity or right to appeal to the Council”.
4. The learned trial judge misdirect himself on the facts when he held that the termination of the respondent’s appointment without recourse to the procedure laid down and outlined under paragraph 2.13 of Exhibit P. 1 is ultra vires the powers of the appellant and therefore the termination is null, void and invalid.
5. The learned trial Judge failed to exercise his discretion judiciously when he held that having held that the termination of the plaintiff’s appointment is null, void and of no effect, it followed as a matter of natural corollary that the plaintiff should be entitled to reinstatement.
Particulars
(i) An order for reinstatement must take into consideration the evidence led at the trial.
(ii) The evidence led does not make out a case for reinstatement.
(iii) Reinstatement of a civil servant is not automatic in all cases of wrongful termination.
6. The judgment is against the weight of evidence.
From the above grounds of appeal, the appellant distilled three issues for determination to wit:
“I. Whether having regard to the provisions of 82 (a) of Public Officer Protection Act Cap 379, Laws of the Federation 1990, the action of the respondent at the lower court was not statute barred?
2. Whether the respondent’s employment was validly terminated by the appellant in accordance with the procedures laid down in its conditions of service?
3. Whether the employment of the respondent had a statutory flavour to entitle her to an order for her re-instatement?”
The respondent did not formulate her own issues for determination but rather argued the issues as formulated by the appellant.
The respondent was a Chief Accountant with the applicant. In 1993, N320,000.00 belonging to the appellant could not be accounted for. The respondent’s department had not paid the said sum into the appellant’s bank account. The appellant accused the respondent of gross negligence and caused her to be arraigned, together with some of her staff, at the Magistrate’s Court. The Magistrates Court later discharged and acquitted her. When she returned to her duty post the appellant invited her to appear before the appellant’s Appointments and Promotions Committee and thereafter by a letter dated 26th October 1993 terminated her appointment.
She then filed the suit at the Lagos High that had led to this appeal.
In his oral argument, appellant’s counsel tied ground 1 of the amended notice of appeal to issue No. I, Grounds 2, 3, 4 to issue No.2 and Ground 5 to issue No.3. 1 shall now deal with the issues raised seriatim.
Issue No. 1 – On issue one, the appellant in his written brief of argument had prepared a compendium on who is a public officer and the effect of the breach of the provisions of the Public Officers Protection Act which is a Limitation Statute. The appellant is an institute created by the Nigerian Institute of International Affairs Act Cap 311 Laws of the Federation of Nigeria 1990. It is a body corporate vested with defined public functions. It is an artificial person. It is now settled law that an artificial person set up by the state to perform functions of a public nature is “a person” within the contemplation of the provisions of the Public Officer Protection Act – See Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 534) 1. Public Officers Protection Act is a limitation statute. It is a special defence like fraud estoppel, res judicata and such like other defences which defence must be specifically pleaded by a defendant before the defence can rely on it in any proceeding. This is so to avoid taking the plaintiff by surprise. A limitation statute is not to be used to ambush the other party. Where such a defence is not pleaded by the defence in its statement of defence in the court of first instance, the defendant can neither raise it nor rely on it on appeal See Kano v. Oyelakin (1993) 3 NWLR (Pt. 282) 399; Yassin vs Barclays Bank (1968) 1 All NLR 171; Mobil Oil (Nig.) Ltd v. Coker (1975) 3 SC 175; Oline v. Obodo (1958) 5 SCNLR 298; F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281; Anyaorah v. Anyaorah (2001) 7 NWLR (Pt. 711) 158. In the instant case the appellant did not plead the defence of the limitation provisions of the Public Officers Protection Act at the lower court. It cannot rely on that defence in this court. Issue No. I is resolved in favour of the respondent.
Issue No.2 is whether the respondent’s appointment was validly terminated by the appellant in accordance with the procedures laid down in its conditions of service. On this issue, the appellant commenced its argument by attacking the non-tendering by the plaintiff in the court below of her letter of appointment. Counsel however stopped short of asking the court to avoid the judgment on that score. That was very wise of counsel because the issue raised therein is in the air as it is not covered by any of the grounds of appeal from which issue No.2 was distilled. But as rightly canvassed by learned counsel for the defence, there was no dispute between the parties as to the employment of the respondent and the terms and conditions of employment In fact in paragraph 8 of the respondent’s Amended Statement of Claim in the court below she pleaded as follows:
“8 The plaintiff confirms that she is a confirmed senior staff of the defendant who is subject to the provisions of the staff conditions of service of the defendant which is hereby pleaded.”
This pleading was expressly admitted by the appellant. What is admitted need not be proved.
The appellant is on firmer ground in its challenge of the interpretation of chapter 2 paragraph 2.13(b) of the terms and conditions of service exhibit P1, which is reproduced hereunder:
“The appointment of a confirmed officer or employee may be terminated provided that:
“(i) the employee has been notified in writing on which consideration is being given for termination of her appointment;
(ii) the employee has had an opportunity of replying to the grounds alleged against him and in the case of statutory officers of appearing in person before the Council; and in the case of other Senior Officers before the Appointments and Promotions Committee, from which an appeal shall lie to the Council. In all cases, their representations must have been considered.”
It is preposterous that an appeal should precede a decision. It does not make sense. There can be no appeal before a decision otherwise there will be nothing to appeal against. The trial court was clearly wrong in that regard. Its conclusion was clearly absurd. But that is not the end of the matter. Part of the respondent’s case at the court below was that she had earlier been prosecuted and acquitted at the Magistrates Court in relation to the alleged misconduct that led to the termination of her appointment. The court below was silent on that. But paragraph 3.02 of chapter 3 of the conditions of service exhibit P provides that:
“Where an employee under interdiction is found not guilty on all the charges, he maybe re-instated and shall receive the balance or his salary for the whole period of his interdiction.”
The respondent was interdicted. She was prosecuted and acquitted. But instead of applying the above provision of the conditions of service, the appellant proceeded to terminate her appointment. That act was clearly in breach of the laid down conditions of service. Where the judgment of a court is right but the reasons are wrong, the appellate court will not interfere with the judgment because the job of the appellate court is to determine whether the decision of the trial court is right and not whether the reasons are right – See Eberuhe v. Ukpakora (1996) 7 NLWR (pt.460) 254; A.-G. Bendel State v. A.-G. of the Federation (1982) 3 NCLR 1; Abaye v. Ofili (1986) 1 NWLR (pt.15) 134; Ukejianya v. Uchendu (1950) 13 WACA 45.
Issue No.2 is resolved in favour of the respondent.
Issue No.3 is “Whether the employment of the respondent had a statutory flavour to entitle her to an order for her re-instatement? On this issue the appellant has proffered two arguments. The first is that the employment of the respondent does not have statutory flavour and therefore the order by the court below re-instating her is wrong. The second plank of his argument is that even if we were to hold otherwise, still pursuant to Ss. 2, 12(a) of exhibit 1, she would be entitled only to the amount she would be entitled to during the normal notice period.
There are three categories of employment-
(a) A pure water/servant relationship under the common law.
(b) Employment where the office is held at pleasure
(c) Employment protected by statute – See Iderima v. R.S.C.S.C. (2005) 7 SC (Pt.111) 135; (2005) 16 NWLR (Pt.951) 378; Olaniyan v. Unilag (1985) 2 NWLR (pt.9) 599.
What the appellant is suggesting in the instant case is that the respondent held her office at the pleasure of the appellant. An employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute. The appellant has argued robustly that there is nothing in the Act establishing the appellant providing for the mode of employment and discipline of the respondent. Apart from my agreeing with the trial judge that exhibit P.1 and the Civil Service Rules are Statutory in nature, Nigerian Institute of International Affairs Act, Cap. 311, Laws of the Federation of Nigeria 1999 make provisions for the employment and discipline of staff. Reproduced hereunder are S. 4 (1), (3), (5) and S.6 (2) and (3)
“4(1) Subject to sections 5 and 6 of this Act, there shall be in the employ of the Institute such number of officers and servants as may appear expedient and necessary to the council for the proper and efficient conduct of the functions of the council.
(3) Appointment of officers and servants of the Institute other than those referred to in sections 5 and 6 of this act shall be made by an Appointments and Promotions Committee which shall be set up by the Council after consultation with the Director-General.
(5) Officers and servants of the Institute shall be answerable directly to the Director-General, who may, after due consultation with the Appointments and Promotion Committee, terminate the appointment of any such officer or servant of the Institute.
S.6(2) The power to discipline, suspend, reprimand and interdict any officer or servant above grade level 07 shall be exercised by the Appointments and Promotions Committee, provided that any officer or servant who is aggrieved by the decision of the committee may appeal to the Council through the Director-General.
(3) The power to appoint and discipline junior officers of grade level 07 and below shall be exercised by the Director-General.”
Some of these provisions are repeated in exhibit P1 which exhibit is much more detailed than the above quoted provisions. There is no doubt therefore that the employment of the respondent was protected by statute. Appellant had argued that even if her termination is adjudged wrongful, the only remedy that would avail the respondent would be damages and cited exhibit P1. However, the appellant must appreciate that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. The situation of payment in lieu of notice will apply where the court makes a finding of wrongful dismissal in favour of a servant. Where however as in the instant case a court has made a finding that the dismissal or termination of the servant was null and void, there is no dismissal or termination. What the employer did was a nullity. See U.T.C. v Nwokoruko (1993) 3 NWLR (Pt. 281) 295; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303.
This appeal must fail and it is hereby dismissed with N10,000,00 costs to the respondent.
SALAMI, J.C.A.: I read the draft of the judgment just delivered by my learned brother, AGBO, JCA I agree with the reasoning contained therein and the conclusion arrived thereat.
I propose to make a few observations of mine solely as a matter of emphasis.
The appellant herein did not raise the issue of limitation of action at the trial court. The appellant, however, sought leave to raise a fresh issue in this appeal which relief was granted on 5th of November, 2003. Pursuant to the granting of the leave, appellant accordingly amended its notice of appeal to reflect the new issue sought to be raised. In the appellant’s brief, the fresh point sought to be raised from the basis of issue 1. This issue respectfully seems to be the main thrust of the appeal.
In this connection, appellant contended that respondent having failed to commence her action within three months of the accrual of the cause of action, the same is considered as time barred.
This plea is hinged on the provisions of section 2 (a) of Public Officers Protection Act, Cap 379 of the Laws of the Federation of Nigeria, 1990 which enacts as follows-
“2. Where any action, prosecution or other proceedings against any person for any act done in pursuance or execution of any Act or 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 proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof.”
There have been conflicting interpretations placed on this provision of the Act. On the one hand, it is held that the defence is only available to individual or biological person. On the other side, the cases approved that the provisions of S.2 (a) of the Act affords both natural and artificial persons of protection. The controversy seems laid to rest by the case of Ibrahim v. Judicial Service Commission Kaduna State (1998) 14 NWLR (Pt.584) 1, 44 where Supreme Court per Iguh, JSC said-
“In the case on hand. I did hold that the words “public officer” or any “person” in public office as stipulated in S.2 of the Public Officer Protection Law not only refer to natural person or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles. It seems to me plain that my observation in the Alhaji Nunku case with regard to the protection of public officers as individual was not meant to refer to natural person only but also covered artificial persons.”
This dictum of the Supreme Court in Ibrahim case is seemingly further affirmed and reinforced by the highest court in the realm in the case of Offoboche v. Ogoja Local Government & Anor. (2001) 7 SC (Pt.111) 107,118, when it said that-
“The question whether the Public Officers Protection Law applies to institutions is not being raised for the first time in this court. In the recent case of Ibrahim v. Judicial Service Commission Kaduna State (1998) 14 NWLR (Pt.584) 1, this court held that any “person” in S.2 (a) admits and include artificial persons,”
The seal of finality having been placed on the interpretation of the words “public officer” to the effect that it extends to and includes a “public department” and consequently an artificial person, a public office or a public body I am bound to follow same. I am next to examine if the case was made out
It is more than settled that a cause of action is a factual situation which if substantiated entitles the plaintiff to a remedy against the defendant and that a cause of action accrues from the date on which the incident which gave rise to the cause of action occurred. See Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549. For the purpose of limitation of action time begins to run from the moment the cause of action arose or accrued. The cause of action is said to accrue when there is a party who can sue and another to be sued and all facts, which are material to ensure the success of the pursuer, exist.
In determining whether an action was time or statute barred or not, it is pertinent to ask for the time when time begins to run. In the case of Fadare v. Attorney-General, Oyo State (1982) 4 SC.1, (1982) NSCC 52, 60, the Supreme Court cited with approval the case of Board of Trade v. Cayzer Irvine Co. Ltd (1927) AC 610, where it was held thus-
“Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”
It is this same passage that was adapted in the dictum of this court in Humbe v. Attorney-General Benue State (2000) 3 NWLR (Pt.649) 419, 433 without acknowledgement.
On the principles, which I have just enunciated, the next question is whether the defendant has, both on his pleadings and the evidence adduced, established the special defence of limitation of time? The burden of proving the defence squarely lies on the appellant who asserts that the action was time barred to prove its defence. It is common ground that the respondent was employed on the 3rd August, 1983 and that her employment was determined by a respondent’s letter reference number 76/11 of 26th October, 1993, After her termination, learned counsel for appellant contended that respondent failed to cause a writ of summons to be issued against the appellant until 27th January 1994. The further argument of the learned counsel for appellant to the effect that the cause of action arose on the day the letter was written in the absence of respondent proffering evidence of the date she received the letter may be adroit but not candid. It is not only misconceived but respectfully sterile. The day the respondent received the letter was clearly not relevant to her case and therefore, she has no burden to discharge in that regard. The piece of evidence is only relevant to the appellant’s defence of statute bar. It is the party who asserts or will fail if the evidence is not produced that shoulders the burden of proof. The appellant’s defence must succeed on its own strength and not all the weakness or failure of a plaintiff to adduce a particular piece of evidence, which might assist her opponent’s case, See Ekpo v. Ita II NLR 68; Nwokarfor v. Udegbe (1963) 1 SCNLR 184; (1963) 1 All NLR 104, 107; Elufisoye v. Alabetutu (1963) NMLR 298; Akinola v. Olowu & Ors. (1962) 1 All NLR 224, 225; (1962) 1 SCNLR 352; and Kodilinye v. Odu (1935) 2 WACA 336.
It is incumbent on the appellant who contends that the action, by efflusion of time was time barred to adduce the evidence manifestly showing that the action was filed outside three months of the receipt of the letter. The crux of the special defence sought to be raised is predicated on the day the respondent received the letter, that is the day the cause of action accrued. In the absence of any other provision in the contract of service, notice of dismissal; cannot take effect before it is given: Either through act of commission or omission that piece of evidence is missing from the record. Until the evidence of the time respondent received her letter of termination is known it can never be established that her action was statute barred. It seems to me that, on the evidence placed before the court below and this court, the defence will not avail the appellant for its failure to discharge the evidential burden placed on it. The court must be placed in a commanding height to decide when the cause of action accrued: F.B.N. v. Karusta-Akporida (1996) 8 NWLR (Pt.469) 755, 768; Bank of North v. Akorede (1995) 1 NWLR (Pt.374) 736, 747 and Isola v. S.G.B.N. (1997) 2 NWLR (Pt.488) 405. 421. The court has not been given relevant materials to enable it determine the time when the cause of action arose hence it cannot say whether or not the action was time barred.
Further more the special defence of limitation of time, like all special defence, such as res judicata, must be raised in the pleadings of the party who seeks to rely on it, in this case, in the appellant’s further amended statement of defence and counter claim. A special defence which is available to the defendant must be pleaded specially and specifically. Where it is not pleaded, it could not be raised subsequently even on appeal at any stage such as at the Court of Appeal or Supreme Court. In the present case not only was the special defence of limitation of time not raised in the amended statement of defence no scintilla of evidence was adduced in support of the defence of statute bar under S.2 (a) of the Public Officers Protection Act, Cap 379 of the Laws of Federation of Nigeria 1990. Since this does not form part of the defence averred to in its further amended statement of defence and counter-claim it is incompetent, at this stage, on appeal, to seek to raise same: Adaji v. Awodu (1992) 8 NWLR (Pt.260) 473, 479; Kano V. Oyelakin (1993) 3 NWLR (Pt.282) 399, 409; Lion of Africa Insurance Co. v. Anuluoha (1972) 5 SC 98; Oline v. Obodo (1958) 5 SCNLR 298; Adelakun v. Aiyedade District Council (1958) WRNLR 49; Ketu v. Onikoro (1984) 10 SC 265, 267; Adekeye v. Akin-Olugbade (1987) 6 SC 208; (1987) 3 NWLR (Pt. 60) 214; and Anyaorah v. Anyaorah (2001) FWLR (Pt.73) 178, (2001) 7 NWLR (Pt.711) 158.
There is therefore substance in the submission of the learned counsel for respondent that the defence not having been raised prior to this stage viz at the trial court, it no longer avail the appellant.
I answer appellant’s issue I in the negative; ground 1 of the grounds of appeal from which it derives fails and is dismissed.
The appellant equally contended that the failure of the respondent to tender her letter or appointment was fatal to her claim. Learned counsel for respondent in response contended that the respondent was relieved or the burden of tendering her letter of appointment on appellant’s admission of paragraphs 1, 3, 5, 7, 8, 11 and 12 of the amended statement of claim in its further amended statement of defence and counter claim. There is merit in the submission of the learned counsel for respondent. Admission of the existence of a contract of service does obviate the need to tender the letter of employment. It is the letter of appointment that provides the terms and conditions of the appointment which were averred to in the amended statement of claim. Generally, the letter of employment must be resorted to in considering and determining the rights and obligations of the parties.
Where the plaintiff fails to plead and prove the fact of his appointment, in a contract of service, he will not be entitled to the declaration that his appointment subsists Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506, 519 and 527. But where as in the instant appeal, the appellant admitted the existence of the contract and the condition of service was put in evidence, the rigid rule set down in Morohunfola’s case (supra) would not be adhered to. The parties appear to be ad idem in the instant appeal that there was in existence a contract of service. The only area of dispute relates to the manner of removal of the respondent. In that situation, it may no longer be necessary to tender the letter of appointment. The parties in this case joined issue on the fact of employment of the respondent and evidence was led in support of the relevant averments in line with the recent decision of the Supreme Court in Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444. The respondent having pleaded existence of contract of employment which the appellant admitted there is no need to call evidence to prove what has been admitted.
Issue 2 is also answered in the negative, grounds 2, 3 and 4 from which it is distilled fail and are dismissed.
On the third and the last issue, the issue of whether respondent’s employment had statutory flavour was raised, I agree that the mere fact that an employer such as appellant is a creation of statute does not cloak all the contract of employment it entered into with statutory flavour: Fakuade v. O.A.U.T.H.(1993) 5 NWLR (Pt.291) 47, 62-63. An employment to enjoy the status of statutory flavour the manner of employment and termination must be specifically provided for in the statute creating the employment in Ridge v. Baldwin (1963) 2 All ER 66, 71 cited in the appellant brief the court held-
“An employment with a statutory flavour arises where the body employing the man is under some statutory or other restriction as to the kind of contract which its servant or the grounds on which it can dismiss them.”
And in Imoloame v. WAEC (1992) 9 NWLR (Pt.265) 303, 317 the Supreme Court held as follows-
“As I have already stated in this judgment there is an employment with statutory flavour when the appointment and termination is governed by statutory provision such as was the case in Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Civil Service Commission.”
Be that is it may, it seems to me that there is misapprehension of the respondent’s case on her pleadings and testimony by the appellant. Her case, on her pleadings and evidence, was that her termination was not in accordance with the provisions of the Staff Conditions of Service of the Nigerian Institute of International Affairs, exhibit P1. I am encouraged in this view by paragraphs 4-10 and 15 of the amended statement of claim. Paragraph 15 thereof reads as follows –
“The plaintiff, therefore, claims against the defendant that the letter dated the 26th day of October 1993 in so far as it purports to terminate plaintiff’s appointment with the defendant, before the consideration of her representations to the council is invalid procedurally, irregular void and or no effect. (underlining mine)
The case predicated on exhibit P1 is further bifurcated: (a) that she was not allowed to exhaust all the remedy available to her under exhibit P1 before the letter terminating her appointment was issued (b) that having been discharged and acquitted she could not be put on subsequent jeopardy by the appointment and promotion committee of the appellant.
On the first leg, it is her contention that the letter terminating her appointment was issued prematurely since it had the effect of foreclosing her right of appeal to the governing body of the appellant. The learned trial judge on this account voided the letter of termination. The appellant raised an issue questioning the decision of the learned trial judge that the letter terminating respondent’s appointment was hastily issued. Then is substance in the submission of the learned counsel for appellant that the termination letter was not prematurely issued. The respondent could only have appealed to the council against the decision of the institute’s appointment and promotion committee after it had been received and is prejudicial to her interest. Until she received the letter of termination she could not know that it is adverse and, therefore, appealable, she would only be entitled to appeal if she is aggrieved by the decision of the committee. She will not be aggrieved until adverse decision is communicated to her.
The other issue, which was copiously pleaded in the statement of claim, is that the appellant was no longer competent to remove the respondent on the same set of facts which she had been arraigned before a competent court, tried and was discharged and acquitted. The learned counsel for appellant respectfully was ominously silent on this point raised under chapter 3 of exhibit P1. Paragraph 3.02 (d) provides thus-
“(d) where an employee under interdiction is found not guilty on all the charges, he may be reinstated and shall receive the balance of his salary for the whole period of his interdiction.”
The respondent was charged and tried along with four other employees of the appellant in charged No.A/255/90 at the Apapa Chief Magistrate’s court which trial resulted in her discharge and acquittal with three others. There was only one conviction. The appellant rather than reabsorbed her decided to terminate her appointment with immediate effect. The conduct of the appellant constitutes an affront to the judicial process. The Appointment and Promotion Committee which doubles as disciplinary committee for the appellant has no judicial power of review over the judgment of the Chief Magistrate Court. Its decision cannot, therefore, override or set aside impliedly a solemn decision of the Chief Magistrate Court which can only be reviewed or set aside by a court of competent jurisdiction which the appellant’s appointment and promotion committee is not. The appellant’s conduct amounts to usurpation of judicial power. As it was succinctly put in the respondent’s brief or argument; ‘if the magistrate found you not guilty we will terminate your appointment with immediate effect.’ How else does one interpret the letter of termination of appointment with immediate effect? It is mainly meant to rubbish the decision or the Chief Magistrate Court.
The appellant pleaded the fact of her interdiction, charge before the magistrate’s court as well as her discharge and acquittal. This brings her case squarely within the contemplation of section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria. Subsection (9) thereof provides thus –
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal office having the same ingredients as that offence save upon the order of a superior court.” (underlining mine)
I am not aware of any order of a superior court authorizing appellant’s appointment and promotion committee to retry respondent on the same set of facts, to wit, fraud in its account, on which she had been discharged and acquitted by a competent court. The conduct of appellant is not only a disobedience to court order which now seems fashionable in this country, it is equally unconstitutional and contemptuous. If the Nigerian Institute of International Affairs is allowed to get away with it, the judicial power could be absorbed by the Institute, one of the organs of the executive branch and taken out of the hands of magistrates and judges. I am strengthened in this view by the Supreme Court dictum in Dr. O. G. Sofekun v. Chief N. O. A. Akinyemi (1981) 1 NCLR 135, 146; (1980) 5-7 SC1 where Fatayi Williams CJN slated thus-
“what is done one, if it is allowed, may be done again and in less demanding circumstances. If the commission is allowed to get away with it, judicial power will certainly be eroded. Such an erosion is, without doubt, contrary to the intention of section 22 (2) of the Constitution. The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pre whatsoever.”
This court followed this dictum in the case of Nnamidi Azikwe University v. Casmir Nwafor (1999) 1 NWLR (Pt.585) 116.
The decision of the appellant terminating the respondent’s appointment, in the circumstance of this case, violates appellant’s fundamental right. He cannot be subjected to trial twice on the same set of facts. The learned trial judge, having found the letter of termination dated 261/10/93, exhibit P4, invalid and thereby voided it the judgment stands in the High of the constitutional infringement. Learned counsel for appellant appealed on mundane issue and thereby neglected the substance of the case.
For this reason and the fuller reason contained in the judgment army learned brother, Agbo, JCA I, too, dismiss the appeal in toto. I abide by all the consequential orders including the order as to costs proposed in the lead Judgment of my learned brother, Agbo, JCA.
GALINJE, J.C.A.: I have read before now the judgment of my learned brother Agbo JCA and I agree with the reasoning and conclusion therein. All the issues raised in this appeal have been exhaustively dealt with by my learned brother as a result I have nothing more useful to add. The appeal is also dismissed by me. I abide by all the consequential orders, including order as to cost.
Appearances
L. F. ANGA (with him, O. OREWALE)For Appellant
AND
G. O. A. EKISOLAFor Respondent
