MISS YETUNDE ZAINAB TOLANI V. KWARA STATE JUDICIAL SERVICE COMMISSION & ORS
(2009)LCN/3095(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of January, 2009
CA/IL/2/2008
RATIO
WHETHER A COURT MAY ORDER AN INJUNCTION WHERE SAME IS NOT SPECIFICALLY CLAIMED
It is settled law that court can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE VS SHARUN (1985) 4 SC (PT.1) 250; OKUPE V. F.B.I.R (1974) 1 N.M.L.R. 422; LIMAN VS MOHAMMED (1999) 9 N.W.L.R. (PT. 617) 116. Per SOTONYE DENTON-WEST, J.C.A.
JUSTICES
HON. JUSTICE SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
HON. JUSTICE IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
HON. JUSTICE CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
MISS YETUNDE ZAINAB TOLANI Appellant(s)
AND
1. KWARA STATE JUDICIAL SERVICE COMMISSION
2. HON. JUSTICE TIMONTHY OYEYIPO CHAIRMAN KWARA STATE JUDICIAL SERVICE COMMISSION
3. MRS. FOLALERE SECRETARY KWARA STATE JUDICIAL COMMISSION
4. ATTORNEY GENERAL OF KWARA STATE Respondent(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): Shun of Embellishment what is before this court for determination involves inter-alia a declaration of whether a marriage has been or has not been contracted between one Yetunde Zainab Tolani and some unknown petitioner who have never been visible nor seen throughout the scenario that led to the determination of her employment. Consequently, this appeal is against the Judgment of Honourable Justice A. A Adebara J. of the Ilorin High Court, Kwara State, delivered on the 15th day of January, 2007, in which the trial Court, inter-alia, held that the withdrawal of appointment of the appellant as a Magistrate Grade II on Grade level 10 with the Kwara State Judicial Service Commission was not unlawful and that the appellant is entitled to only damages and as such the appellant is not entitled to a re-instatement. He awarded the appellant one month salary in lieu of notice. Yetunde Zainab Tolani was employed as a magistrate grade II by the Kwara State Judicial Service Commission and she is hereinafter referred to as the appellant, whilst the Kwara State Judicial Service Commission is hereby referred to as the 1st Respondent in this appeal. The Honourable Justice Timothy Oyeyipo Chairman of the 1st Respondent is hereinafter referred to as the 2nd respondent whilst Mrs. Folalere as Secretary to the 1st Respondent is herein referred to as the 3rd Respondent. The last but not the least the Honourable Attorney General and commissioner for Justice of Kwara State is hereinafter referred to as the 4th Respondent.
The facts given rise to this appeal could be gleaned fully from the seasoned and well considered judgment of the Trial Court, the statement of claim, the pleadings filed by both parties and indeed the detailed submissions and addresses of both parties, including the exhibits.
The simple fact of this appeal is that the appellant having been considered fit and qualified after an interview conducted by the 1st respondent, the appellant was employed as a Magistrate Grade II on salary Grade Level 10 vide the letter of 23rd day of December, 2004 tendered as (Exhibit 1) in the Lower court Consequently, the appellant immediately without delay accepted the appointment as required by Exhibit I vide the appellant’s letter of 24th day of December, 2004 (Exhibit 2) and the appellant accordingly assumed duty on the 2th day of December, 2004.
The 1st, 2nd, and 3rd Respondents forwarded a petition letter dated 31st day of January, 2005 (Exhibit 10) written by one Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin to the appellant for her reaction. In brief, the petition written by Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin alleged that the appellant lied about her marital status and misrepresented herself as a single lady whilst she was already married in her bid to secure employment with the 1st Respondent.
In reaction to the alleged petition which was tendered in the Lower court as (Exhibit 10), the Appellant In response in a letter dated 31st January, 2005 (Exhibit 4) categorically denied being a married woman as at the time of her employment with the Kwara State Judicial Service Commission.
In his petition, the petitioner concluded in (Exhibit) 10, that he was “looking forward for an immediate action” from the Kwara State Judicial Service Commission. Consequently, the 1st, 2nd, 3rd and 4th Respondents reacted immediately to the purported petition and within a period of eight days, the Respondents withdrew its letter of employment and terminated the appointment of the Appellant from the Kwara State Judicial Service Commission vide the letter dated 8th day of February, 2005 tendered as (Exhibit 5).
Despite the appeals and protests by the appellant vide Exhibits 6, 7, and 8, the Kwara State Judicial Service Commission refused to further employ the Appellant who was accordingly terminated with effect from 11th day of February, 2005. All the Exhibits referred to shall at the appropriate time be adumbrated upon in the course of this judgment.
Consequent to this termination, the appellant was obliged to take out a writ of summons against the respondents in the Lower Court. The crux of the appellant’s claim could be gleaned from paragraph 19 of the statement of claim although the totality of the statement of claim was fully reflective of the issues in controversy and detailed facts thereof. However, for the purposes of this appeal, I hereby reproduce the salient paragraph 19 of the claim which goes thus:
“19, where of the plaintiff claims against the defendant jointly and severally as follows:
1. A declaration that the purported “withdrawal” (termination or dismissal) of the plaintiff appointment as Magistrate Grade II on Grade Level 10 with the 1st defendant by the Defendant through I their letter of 8/02/06 is without any justification known to law, unlawful, altra vires, illegal, oppressive, uncivilized vicious, unconstitutional and null and void and of no effect.
2. 1(a) a declaration that the purported withdrawal of the plaintiff appointment as Magistrate Grade II with the 1st defendant by the defendants is a gross violation of the plaintiff’s right to a hearing in accordance with rules of fair hearing and civilized hearing.
3. An order of the court setting aside the defendant’s letter dated 8/02/08 purporting to withdraw the plaintiff’s appointment as Magistrate Grade II with the 1st defendant.
4. A declaration that he plaintiff is still a Magistrate Grade II on Grade Level 10 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.
5. An order reinstating the Plaintiff to her position as a Magistrate Grade II with the 1st defendant with effect from 27/12/04.
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 inducing the commission of the breach, of the plaintiff’s appointment as Magistrate Grade II with the 1st defendant. Dated this 11th day of May, 2005″.
As earlier stated, even though part of the judgment was in favour of the Appellant but the judgment in the appellant’s views did not seem to address all the claims in the said writ claim, hence the appeal filed to this court which came up for hearing on 20/10/08. In this appeal, the Appellant’s counsel, Mr. Salman Jawondo filed the appellant’s brief dated the 10th day of January, 2008 on same date. He adopted his brief as filed and prayed the court to allow the appeal. By way of adumbration, he referred the Court to the case of Attorney General of Cross River State and 2 Ors vs Chief Patrick Okon (2007) All Federation weekly Law Report (Pt. 395) 370 at Pg. 387.
Mr. J. A. Mumini, the DPP of Kwara State, of counsel to the respondent also had a brief dated the 19th day of May, 2008 which was deemed properly filed and served by order of Court on 20th October, 2008. He adopted the said brief on behalf of the Respondent and conceded that the appellant is entitled to damages because the reason for the withdrawal of the Appellant is contrary to law. However, he urged the court to also dismiss the appeal.
What I may ask is this reason? It is better to proceed and see this reason than declare same now which would become obvious as we progress in the judgment.
At this point I must observe that the concession of J. A. Mumini of DPP of Kwara State in my estimation is that of a mature mind though he is a prosecutor, he is not a persecutor. He as OPP is ready to do his duty but at the same time he fights for the course of justice which is the Hall Mark of a Good Advocate for indeed all hands must be on deck to ensure that justice is not only seemingly done but must be seen to be done and in place. Every advocate must fight for justice at all times even if it does not attract pecuniary reward or other perquisites for the Advocate. I therefore congratulate J.A.Mumini for his courage in this wise.
THE ISSUES FOR DETERMINATION
The Appellant submits the following issues for determination.
1. Whether or not the Lower Court was right in holding that the Appellant’s employment is not clothed with statutory flavour and she is therefore not entitled to re-instatement because the termination of the Appellant’s appointment by the Respondent is not unlawful, and she is entitled to damages.
2. If the answer to issue No. 1 above is in the negative, whether or not, having regard to the fact that the appellant was employed as a magistrate Grade II on Grade Level 10, the learned trial judge was right in awarding the appellant one month salary in lieu of notice.
Whilst support the two issues formulated for determination, I am of the view that the crux or the kernel of the circumstances that led to the existence of the termination of the Appellant in it vis-a-vis her, employment is her marital status and indeed her termination was due to that fact. Her marital status is not properly 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.
The very basis of why the 1st Respondent had a grouse with the Appellant is due to the very fact that there was a petition written against her by one Lukuman Salman to the 1st Respondent to the effect that the Appellant is a married woman. Is she a married woman? Had she lied about her status to her employers? Does her status affect her employment?
The 1st Respondent through the 3rd Respondent sent a copy of the petition to the Appellant and requested her to respond to it within 48 hours. She not only responded indicating that she is neither married nor had ever been married to any body, her father Alhaji Lamidi Tolani also buttressed her response by forwarding of a letter and also a sworn affidavit about the marital status of his Daughter to the same effect when he deposed inter-alia in these words.
“1. That Miss Zainab Yetunde Tolani is my direct daughter and who lives with me up till the moment.
2. That I have not given her out in marriage to any Lukman Salman or any man what so ever.
3. That I have never collected any dowry or bride price from the said Lukman Salam or any man whatsoever for my daughter.
4. That I confirm she remains a spinster and not in any way married.
5. That my daughter has not contracted any marriage whether under statutory customary or Islamic Law.”
Despite the Appellant’s presentations of her marital status as being a single lady which status was confirmed by her father in his own representations and even an Affidavit evidence, the Respondents chose to ignore same and without given her an opportunity to confront headlong the writer of the petition believed in the genuiness and truth of the allegations and accordingly proceeded to terminate the promising career of the young magistrate on the bench, and indeed terminated her appointment.
Furthermore, the Appellant’s right to private family life and honour was thus affected by this Singular act of the respondents, believing in the petitioners’ allegations that the appellant is a married woman. Her Constitutional Rights to private family life and enjoyment was thus subject to being breached by the respondents. This subjection of the Appellants’ privacy to spurious petitioners whose aim might be to ridicule her was not intended in the 1999 Constitutions and the universe declaration. The Appellant was protected under article 17 of the Universal Declaration of Human Rights of the United Nations’ General Assembly 1948, wherein inter-alia it is provided thus:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks”.
In conjunction with the provision of privacy is the provision inter alia that “marriage must be entered into with the free consent of the intending spouses.”
This is specifically provided for in Article 10 of the Universal Declaration of Human Rights the United Nations General Assembly 1948. All these rights of the petitioner were not taken into cognizance when the big stick was unleashed on her despite the fact that the declaration stipulates that the widest possible protection and assistance should be accorded to the family which is the natural and fundamental group unit of the social norm particularly women and children.
The petitioner’s livelihood is terminated because of the perceived notion by her employer that being married she ought to have changed her name to reflect her presumed husband name and not only that she also ought to have declared herself as “Mrs” and not “Miss” because they did not believe that she was not married whilst she claimed to be single and answer or bear her father’s name this was subject to termination of her employment. Would this same measure be applicable to a male if a woman or indeed a faceless woman petitioner claims that the Appellant if she were a male is her husband? The answer surely may or would be in the negative. Therefore why this discrimination against women. Are women not free to bear their names or even their father’s names? In any case, what is the use of truncating their professional career on this issue? Many of these women have been subject of discrimination until recently when institutions become more aware that there should be no discrimination against women as provided for under section 42 of the 1999 Constitution of the Federal Republic of Nigeria with particular reference to section 42 (1) (a), (b) and (c) which provides as follows:
“42(1) a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only he is such a person.
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject, or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, and places of origin, sex, religions or political opinions.”
I am a strong advocate of the protections granted to the citizen under our laws especially the constitution and any breach of constitutional provision against a citizen’s rights shall in my view collapse like a pack of cards. See TIMOTHY -VS- OFORICA (2008) 9 NWLR PART 1091, PAGE 204 – 213. Where the Court of Appeal in a unanimous decision held inter-alia that no law – or custom that stands in the way of our constitution should be allowed to stand tall no matter the circumstances.
The approach of the Apex Court which doubles as our constitutional court in Nigeria has in a plethora of decisions laid down the functionality of the constitution in the lives of the citizenry. Sir UDO UDOMA, JCA, declared in NAFIU RABIU -VS- THE STATE (1981) 2 NCLR 293 AT 326 thus:
“… the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our general communities must involve, ours being a plural, dynamic society and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as not to defeat the principles enshrined in the Constitution … this court should whenever possible and in response to the demands of justice, lean to the broader interpretation …. It is my view that the approach of this court to the construction of the constitution should be and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quarh pereat.”
The first issue for determination as canvassed by the Appellant is “WHETHER OR NOT THE LOWER COURT WAS RIGHT IN HOLDING THAT THE APPELLANT’S EMPLOYMENT IS NOT CLOTHED WITH STATUTORY FLAVOUR AND SHE IS THEREFORE NOT ENTITLE TO RE-INSTATEMENT BECAUSE THE TERMINATION OF THE APPELLANT’S APPOINTMENT BY THE RESPONDENT IS NOT UNLAWFUL, AND SHE IS ENTLED TO DAMAGE.” In submission in respect of this issue, the Appellant’s counsel Mr. Jawondo submits inter-alia that the lower court was in serious error to have held that the Appellant’s employment is not clothed with statutory flavour. He contended that the trial court should have placed reliance on the authority of IMOLEMO -VS- WEST AFRICAN EXAMINATION COUNCIL. (1999) 9 NWLR (PT. 265) 303 in its judgment, but failed to do so even though the trial court referred to the case which is supportive of an employment.
It is the contention of the appellant that the said letter dated 8th day of February, 2005 (Exhibit 5) does not exist and that it is only a fabrication of the Respondents. The existence or no existence of this letter of termination of appointment is very germane to the consideration of the issue of statute barred, so much so that if the letter exists the action is admittedly statute barred. In the learned counsel’s opinion, if it does not exist, the case of the Appellant would be sound and she would not be entitled to any dismissal or termination of employment. The learned court stated the law correctly on the meaning of employment with statutory employment when it referred to the case of IMOLEMO V WEST AFRICAN EXMAINTION COUNCIL (1999) a NWLR (Pt. 265) 203 at 317 “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 flavor”
But it is submitted that the Lower Court did not apply the law and the definition of “employment with statutory flavour” as stated in the case of IMOLEMO V WEST AFRICAN EXAMINATION COUNCIL (WAEC) (Supra) when it held that the Appellant’s employment is not clothed with statutory flavour. In this submission he refers us to the Appellant’s issues which were referred to as the two vital ingredients. While it is conceded that two vital ingredients that must co-exist before a contract of employment can be said to import statutory flavour are: firstly, the employer must be a body set up by the constitution or statute. And secondly and finally, either the statute or regulations made pursuant to the constitution or principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially in matter of discipline. To the learned counsel the two ingredients are presented in the employment of the appellant. He also cited and relied on section 197 and part II of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria by virtue of which the 1st Respondent is vested with the power to appoint, dismiss and exercise disciplinary control over its staff including Magistrates.
The Appellant’s counsel therefore submitted that the respondent’s contention – that the Appellant’s employment is that of master and servant is not tenable as it attracts statutory flavour. The learned counsel for the Respondent in response urged the court to confine itself to the terms and contract of service between the parties. He cited and relied on ADEGBITE V COLLEGE OF MEDECINE UNILAG (1973) 5 SC 149; NPMB V ADEWUNMI (1972) 1 ALL NLR (Pt. 2) INT DRILLING W. VS AJIJALA (1976) 2 SC 115; SULE VS NCB (1965) 2 NWLR (Pt. 17) SHITTA-BEY V FSCC (1998) 12 NSCC 28; 6522 NWLR (Pt. 80) 25 OLANIYAN V UNILAG (1985) 2 NWLR (Pt. 9) 599.
He submits finally on this issue that the position of the Appellant is inadmissible because the 1st Respondent herein being a creation of statute or the Constitution does not elevate all its employees, the Appellant inclusive, to that status or the statutory employee that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour. The learned counsel for the Respondent urges us to hold that the Appellant claim is not tenable. On issue 1, the learned counsel to the Appellant submits that by virtue of the Third schedule to the 1999 constitution of the Federal Republic of Nigeria, it is clear that the Appellant’s employment is clothed with statutory flavour. The learned counsel to the Appellant cited the case of E.P IDERIMA VS RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 S.C (Pt 11)135 at 151 and referred this court to the following as postulated by Supreme Court. 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 w1ere (sic) officers is held at pleasure
iii. Employment protected by statute.
The learned counsel to the appellant further cited the cases of RIDGE VS BALDWIN & ORS (1964) A.C 40, OLAREWAJU VS AFRIBANK (NIG) PLC (2001) 7 S.C (Pt. 111) 1, (2061) 13 NWLR (Pt. 731) 691 at 705, OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599. The learned counsel submitted in the instant case that since the appellant’s employment is governed by the Civil Service Rules, her employment comes under the 3rd category. That is to say, the employment is protected by statute or employment with statutory flavour. He cited the following case to back up his submission: UNIVERSITY OF CALABAR VS INYANG (1993) 5 NWLR (Pt. 291) 100 at 117; SHITTA-BEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC (Reprint) 26; (1981) 1 SC. 40 at P. 56.
Rounding up his argument on issue 1, the Appellant’s counsel submitted that the Appellant was not given the right to fear hearing. He submits on this issue that it is a cardinal principle of our law as enshrined in section 33 of the 1999 constitution that the parties to a dispute must be accorded the right to a fair hearing meaning that a panel should be constituted in a manner as to ensure its independence and impartiality.
He submits further on this issue that the Supreme Court has settled the law on what an employer needs do to satisfy the regime of fair hearing before dismissing an employer’ Summarily, he cited the case of YUSUF VS UNION BANK (NIG) PLC. (1996) 6 NWLR (pt. 45) 632 that to satisfy this requirement a person likely to be affected by disciplinary proceedings against him to enable him make a representation in his own defence.
Even though Mr. Mumini concedes that there is reason why the Appellant ought to be paid damages, the Counsel for the Respondent while arguing issue 1 of the Respondent’s issue for determination and further response on issue 1 of the Appellant, he argues that the Appellant pleadings in paragraph 9 only obliquely complaining about the alleged non-observance of fair hearing in her case, the main issue canvassed therein according to the learned Respondent’s counsel is the accusation of malice and bad faith. He argues further on this issue of the breach of the Appellant’s right to fair hearing is that a person is heard before being punished on an allegation. He submits that the Respondent has established that the Appellant was given adequate and ample opportunity to clear herself from the allegation.
In resolution of this issue 1, I would have recourse to the epoch decision of the Supreme Court in the decision of OLANIYAN -VS- UNIVERSITY OF LAGOS, (1985) ALL NLR 363, where the Apex Court defined employment with statutory flavour, In Olaniyan’s case, the Appellants who were all professors at the University of Lagos appealed to the Supreme Court from a decision of this court, Lagos Division. The Appellants instituted an action against the respondent in the Lagos High Court. The High Court ruled in favour of the Appellants declaring their purported termination ultra vires. However when the case went on appeal to the Court of Appeal, this court reversed the Judgment of the Lagos Court, on Appeal to the Apex Court, the court in a Unanimous decision refused to give a nod to the decision of the Court of Appeal and in reversing the decision of the Court Appeal held inter-alia that to remove a public officer in flagrant contravention of the rules governing him, whether under contract or under provisions of statute or regulations made there under is to act capriciously and to destabilize the security of tenure of public servant, frustrate his hopes and aspirations and thereby the government and the well being of society is tardy and affected.
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 intents 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, PART II of the third Schedule to the Constitution of the Federal republic of Nigeria and also Section 318 of the 1999 Constitution stipulates that a magistrate is a senior Public officer.
OPUTA JSC delivered the lead judgment in the Supreme Court, calling in aid an earlier decision of the Court in SHITA BEY VS FEDERAL REPUBLIC SERVICE COMMISSION and declared that the Professors (Appellants) did not hold their officers at the pleasure of anybody, but by virtue of the University of Lagos Act No.3 of 1967. Rather, since the regulations, governing the Service of senior staff in the University, and the memorandum governing service of senior staff in the University and the University all derive from the Constitution, they all have constitutional force and they invest in the Appellants, over whom they prevail, legal status, which make their relationship with the Relationship with the Respondents, although one of master and servant, Certainly beyond the ordinary or mere master and servant relationship. It is, the supreme court declared one of a master and servant relationship, with a statutory flavour. And thus, conferring legal status on the Appellant.
Contributing to the decision of the Court, Aniagolu JSC placed emphasis on the issue of natural justice and condemned the University Council for its failure to give the Appellants a fair hearing. To him, procedure adopted by the Council may be quick, convenient and time saving, but the dictates of justice demand that the legal principle of audi alteram partem must be obeyed, no matter how cumbersome and inconvenient it may appear to the Court.
Furthermore, the contention of whether the appellant was given or not given fair hearing is in itself very fundamental issue that would need the consideration of the court. The Respondents it was stated issued her query to respond within a specified period to the issues raised in the petition and without granting opportunity to confront the petitioner or even direct access to the respondents especially the 2nd respondent. Further they refuse even to believe her and her sole witness who did by virtue of his position as her father deposed even on oath to the fact that his daughter is not married nor had been married to anybody including the spurious petitioner. Rather than hear her out, the respondents chose to deliver their verdict on the petition by an immediate withdrawal of her employment. Would this attitude amount to fair hearing? The right to fair hearing is one of fundamental rights provided under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. On no account can this right be waived or statutorily taken away, even at the expense of speedy trial.
In ABUBAKAR -VS- YAR’ADUA (2008) 1 SCNJ 549 AT 574, the Supreme Court per NIKI TOBI, JSC said:
“Court of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing in the sense of availing the parties, as in this appeal, the right to administer interrogatories. A party who is entitled in law to administer interrogatories and is denied that right is denied the right to fair hearing. And when I say that, I am not oblivious of the law that speedy hearing is one vocal and important aspect of fair hearing. The point I am struggling to make is that as interrogatories, is not fair as it runs contrary to the constitutional principle of fair hearing.”
See also CHIGBU V. TONIMAS (NIG.) LTD (1993) 3 NWLR (Pt. 593) 115 CA; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290 at 305 SC; AWONIYI V. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIGERIA) (2000) 6 SC (Part I) 103; ARALA V EKEAGWI (2001) 5 WRM 1 SC.
Therefore where there is a breach of the principle of fair hearing, any decision arrived at would be cut down notwithstanding that the conclusion would not have been any different if the principle had been adhered to. See MIKA’ILU V. STATE (2001) 5 WRN 74 AT 80 CA.
I am not however unaware that this is not a fundamental rights proceedings although there are breaches of the fundamental rights provisions of the appellant which I find difficult to gloss over, despite the decision in EGBUONU VS B.R.T.C. (1997) 12 N.W.L.R. (Pt. 531) 29 at 31 wherein the Supreme Court held that an action based principally on dismissal of employee cannot be brought under Fundamental Rights (Enforcement Procedure) Rules. However it is the same court in its wisdom and its later decision that also said that the Fundamental Rights of the individual cannot be alienated, waived or statutorily taken away.
In view of the foregoing and from the parties submissions and cases relied upon I am constrained to hold that issue I succeeds because it is very clear even for a blind man to see that surely the position of a magistrate is a public office that enjoins and attract statutory flavour for indeed the 1st Respondent is a baby of the constitution vide the constitutional provision is section 197 and part II of the third schedule to the constitution of the Federal Republic of Nigeria 1999.
ISSUE 2
“IF THE ANSWER TO ISSUE NO. 1 ABOVE IS IN THE NEGATIVE, WHETHER OR NOT, HAVING REGARD TO THE FACT THAT THE APPELLANT WAS EMPLOYED AS A MAGISTRATE GRADE II ON GRADE LEVEL 10, THE LEARNED TRIAL JUDGE WAS RIGHT IN AWARDING THE APPELLANT ONE MONTH SALARY IN LIEU OF NOTICE.”
On issue 2, the learned counsel for the Appellant contented that the withdrawal of appointment of the Appellant as Magistrate Grade II by the Respondents is unlawful not just wrongful as held by the learned trial judge. The learned trial judge having held that the respondents failed to prove the reason given for the withdrawal of the appellants’ appointment and that the provision of section 72 of Kwara State Judicial Service Commission Regulations 1980 do not avail the respondents since marital status is not a criterion or condition for appointment as a magistrate thereby implying in effect that the appellant did not obtain her appointment by making false statement or concealing any material fact which if disclosed would have militated against her being offered that appointment.
It follows therefore the withdrawal and the termination of the Appellant’s appointment is a contravention of the Regulations and therefore unlawful. He submits further on this issue that the learned trial judge also found that allegation of non-disclosure of marital status leveled against the Appellant and for which her appointment was withdraw on the basis an allegation of perjury having regard to the declaration in Exhibit 9 and that the Respondents failed to prove or substantiate the allegation. Having found so, the counsel to the Appellant submits that the withdrawal of the appellant’s appointment on the basis of the unproved and unsubstantiated criminal allegation of perjury is both wrongful and unlawful.
On issue 2, the learned counsel to the Respondent urges us to hold that having regarded to the nature of the Appellant’s employment, the learned trial judge was right in awarding the appellant one month’s salary in lieu of notice. He submits further that having argued that the Appellant’s appointment does not enjoy statutory flavour, the measure of damages recoverable by the Appellant is prima facie the amount the Appellant would have served during the period necessary for the lawful termination of the contract of employment. The learned counsel for the respondent cited and relied on the case of KATTO VS CBN (1990) 6 NWLR (Pt.607) 390 at 406. The Supreme Court restates an illuminating position of the law when it said “In ordinary contracts of employment where the terms provide for one’s notice before termination or salary in lieu there, the only remedy an employee who is wrongfully terminated can get is one month’s salary in lieu of notice and any other legitimate entitlement due to him at the time, the employment was brought to an end” (WESTERN NIGERIA DEVELOPMENT CORPORATION VS ABIMBOLA (1966) 4 SSCC 172.
He submits finally on this issue that the conclusion of the learned trial judge gave proper consideration to the status of the Appellant’s appointment and the number of days she has put into service which was just 47 days before her appointment was terminated, He submits further on the issue that even in an employment clothed with statutory flavour as in the civil service of the Federation and the State, an employee is entitled only to 3 months in lieu of notice. He maintains that it follows therefore that the argument of the Appellant in her brief of argument that she is entitled to Twelve month salary in lieu of notice is most ridiculous. The learned counsel for the Respondent urges that the Appellant having failed woefully to establish her case before the trial court leaves the lower court with no option than what it had done in the circumstance. He concludes and urges your lordships to resolve the issue in favour of the Respondent He further urges your Lordships to ignore or discountenance with the arguments of the appellant in her brief of argument and dismiss the appeal on two grounds Viz.
That the Lower Court was right in holding that the appellant’s employment is not clothed with statutory flavour and that she is therefore not entitled to reinstatement and that having regarded to the nature of the Appellant’s employment, the learned trial judge was right in awarding the appellant one month’s salary in lieu of notice.
In the second limb of his argument of this issue, the learned counsel to the Appellant submits that the case of the Appellant is meritorious one because it is not in dispute that the Appellant as a Magistrate Grade II on Grade Level 10 is a Senior Officer of the Public Service of Kwara State employed by the Respondent which is a creation of the constitution. He submits that the office or position of a magistrate is a creation of the combined effect of the Provisions of section 197 of the 1999 Constitution and Part II of the Third Schedule thereto; Sections 4 and 8 of the Criminal procedure code law cap 43 laws of Kwara State 1994. The office of a permanent nature with its functions duties and powers defined by Sections 9, 10, 12 (1) 13, 15, 16 17 and 18 and appendix (A) to the Criminal Procedure Code Law of Kwara State Cap 13 Laws of Kwara State 1994. The office of a magistrate is therefore a public office as defined by section 318 of the 199 constitution of the Federal Republic of Nigeria. He refers to the REGISTERED TRUSTEES OF THE PLANNED PARENTHOOD FEDERATION OF NIGERIA & ANOR VS 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 regulation and thirdly, that the position must show some permanency” A public officer is one in the public service of the government of the Federal or State and as defined under the heading “Public Service of the Federation” or if the State as per section 277 (1) (a) (b) (c) (d) (e) (f) (g) of 1979 Constitution.
He further submits that since the Appellant is a senior public official, and in the absence of specific provisions in Exhibit and or the Kwara State Judicial Service Commission regulations 1980, prescribing one month salary in lieu of notice awarded the appellant the learned trial judge is ridiculous in the circumstances of the case. The learned counsel for the Appellant urges their Lordships to hold that the lower court was wrong in awarding as damages against the Respondent and in favour of the Appellant one-month salary in lieu of notice. He pleads their lordships not only for re-instatement of the Appellant but also prays the court to award the twelve months salary in lieu of notice on the basis of unproved and unsubstantiated allegation fabricated by the evil-minded, faceless and unidentified person in the Kwara State Judicial Service Commission.
The Appellant finally prays the court to allow this appeal and order the reinstatement of the Appellant and award her twelve months salary in lieu of notice.
The trial court duly evaluated the pieces of evidence here and there very well and indeed married the facts in his consideration of the various authority cited. The judgment itself is in favour of the Appellant in the sense that the learned Justice Adebara on page 124 of the record in his judgment said:
“Taking all the above into consideration, particularly regarding the status of the claimant as a Magistrate Grade II and the length of service which according to the claimant was 47 days before her appointment was wrongfully terminated, it is my humble view that one month notice or one month’s salary in lieu of notice is reasonable as the length of notice for the employee of the statue of the claimant. I therefore hold that the claimant is entitled to one month salary in lieu of notice from the 1st defendant. It is ordered that same be paid to her. Also, since the claimant actually worked for 47 days as borne out by the evidence before me between the period of 27/12/04 when she assumed duty up to the period of 11/2/2005 when her Appointment was wrongfully terminated, I hold that her salary and allowances for the said period is her legitimate entitlement which she is entitled to and which ought to be paid to her by the 1st defendant. I order accordingly.
In the light of all the above, relief sought by the claimant succeeds only to the extent that the termination of her appointment by the 1st defendant is declared wrongful. Reliefs 2, 3, 4 and 6 fails and are hereby dismissed. Relief NO.5 succeeds only to the Extent that the 1st defendant is ordered to pay the claimant her salaries, allowances and other entitlements for the period of 27/12/04 up to 11/2/2005 for which she legitimately worked before her appointment was wrongfully terminated. It is also ordered that the 1st defendant pay to the claimant one month’s salary in lieu of notice being the reasonable length of notice the claimant would have been entitled to bring her contract of employment with the 1st defendant to an end.”
This decision was reached as I said after a due consideration by the trial Judge of the facts and authorities. However for the sake of brevity, I would hesitate to review case by case relied upon by the parties or even the trial court for I am an avowed believer of substantial justice and not legalistic justice that plays and toys merely around decided cases. The courts are leaping more towards substantial justice rather than technical justice.
See OLANIYAN -VS- UNIVERSITY OF LAGOS SUPRA
As I said the judgment thoroughly viewed and appreciated the case of UNION BANK OF NIGERIA LTD -vs- OGBOIL (1995) 2 NWLR (PT. 308) 467 AT 664 is apt and applied it to the determination of the case in the lower court. He distinguished this base with the case of IDERIMA -VS- RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 SC NJ 493 AT 504 on which he says the claimant relies and posited that the case was inapplicable to the instant case – because in IDERIMA’S case, the respondent did not comply with rule 04107 of the Civil Service Commission Rules before the appellant was dismissed and considered that in the present case, the claimant/appellant has not alleged any breach of the Kwara State Judicial Service Regulations.
This assertion is laughable for indeed if there was no breach committed by the respondent especially the 1st respondent then the appellant would have no cause to resort to the court that eventually led to this appeal. In fact the trial judge in the judgment itself noted that the respondent has the right under Section 28 of the Kwara State Judicial Service Commission Regulations 1980 to terminate the employment of the appellant. Please I shall again indulge in quoting him thus:
“The question now is whether the claimant employment was properly determined by 1st defendant. For the purpose of finding an answer to this question, one will have to turn to exhibit ‘5’ which is the letter by which the claimant employment was withdrawn.
It has been stated that the appointment of a civil servant can be determined at any time subject to the civil service procedure. But where no special procedure is contained in the Condition of service of a public servant, such a servant employment can still be determined with or without notice while the employer will be liable to pay only the arrears of salary which might have accrued to the servant as at that date. See ADEDEJI VS POLICE SERVICE COMMISSION (1968) N.W.L.R. 102; HEAD OF F.M.G. VS PUBLIC SERVICE COMMISSION (1974) 11 S.C. 79; SHITA-BEY VS FEDERAL CIVIL SERVICE COMMISSION (1981) 1 S.C. 40.
In the instant case, it has been submitted on behalf of the defendants that 1st defendant itself initiated the procedure for the withdrawal of employment of the claimant. Yes, the 1st defendant has the right to do so under section 28 of the Kwara State Judicial Service Commission Regulations 1980. The 1st defendant exercising its aforesaid power thereafter wrote exhibit 5 to the claimant withdrawing her appointment. This withdrawal in my view is akin to termination of claimant’s appointment. I am unable to agree with the claimant’s counsel submission that it amount to a dismissal. He said no notice was given to the claimant and that the determination was immediate. This submission is not true as the claimant appointment was withdrawn vide a letter dated 8/2/2005 with effect from 11/2/2005. It is therefore not with immediate effect. I hold that a notice of about three days was given. The mere fact that it was not stated in exhibit 5 that the claimant is entitled to her arrears of salary and benefits will not detract from the fact that their withdrawal of her appointment is a termination and not a letter of withdrawing the appointment of the claimant, it was stated that the claimants appointment was withdrawn on the ground that she failed to exonerate herself of the allegation of misrepresenting her marital status as alleged in the petition of one Abdulrasaq Tunde Raji (Exhibit 10) It is therefore clear and safe to conclude that the claimant’s appointment was terminated by the 1st defendant on the alleged ground that the claimant lied or misrepresented her marital status in that she represented to the 1st defendant in her appointment form (exhibit 9) that she was single whereas she was married.”
Again shun of embellishments, the issue that triggered off the withdrawal of appellant’s appointment is none other than that of alleged misrepresentation of her martial status. Allegations’ pertaining to this marital status is actually the immediate and remote cause of the appellant’s removal as a magistrate. It is for this reason that recourse was alluded in this judgment to the fact that the Appellant’s fundamental human rights breach of her rights to private family life and consequent discrimination she suffered as a woman meted out to her by the respondents especially the 1st and 2nd respondents wherein they refused to believe her and chose to believe the spurious petitioner. See IDERIMA -VS- RIVERS STATE CIVIL SERVICE COMMISSION SUPRA.
Consequently, the courts guard these fundamental human rights very jealously. Therefore law or Act that is perpetrated against the provisions of the fundamental rights of any individual which is against the spirit of the constitution would not be allowed to stand. The spirit of the constitution must stand firm at all times and to ensure that this is done, the superior courts have constantly held in a plethora of cases that the human rights of the individual should on no account be subsumed or swept under the carpet in favour of other laws no matter how well pivoted that law may be. See NASIRU BELLO & ORS VS A. G. OYO STATE (1986) 5 NWLR (PT. 45) 828.
ATTORNEY GENERAL OF CROSS RIVER STATE & 2 ORS VS CHIEF OKON (2007) ALL FEDERATION WEEKLY LAW REPORT (PT. 395) 370; TIMOTHY VS OFORKA (2008) 9 NWLR PART 1091 PAGE 204; W. A. E. C. VS AKINKUNMI (2008) 9 NWLR PART 1091 PAGE 151; NAFIU RABIU VS STATE (1981) 2 NCLR 293; MOHAMMED VS OLAWUNMI
(1990) NWLR (PT 133) 458;
In NASIRU BELLO -VS- A. G. OYO STATE (SUPRA) where the intervention of the Supreme Court was sought in relating to the deprivation of one of these rights. The appellant in the case had been convicted of armed robbery and sentenced to death by the High Court of Oyo State under the Robbery and firearms law applicable in the State. The convict filed an appeal before the Court of Appeal. However, while his appeal was still pending, his execution warrant was signed by the State Governor upon the advice of the State Ministry of Justice. Consequently, he was executed although his appeal had not been heard and determined. The convict’s dependants including his parents, wives and children instituted the action and argued, inter alia, that the action of the State Government was unconstitutional in that it violated the convict’s right to life, and the right to have his appeal heard as guaranteed by section 220(1) of the 1979 constitution.
Although the issues canvassed in this case were novel, the Supreme Court unanimously declared the action of the government illegal, unlawful and unconstitutional. The Court pointed out that by the action of the government, the deceased had not only lost both his rights to life and his right to prosecute his appeal, his dependants had been unjustly deprived of the benefits of the life of their breadwinner.
In this instant appeal, the appellant has also lost her means of livelihood and her human dignity arising from this spurious accusation.
Has anybody ever stopped to imagine the trauma of the Appellant throughout the course of this scenario that led to this appeal? What is her feeling, now in respect of her marital status? Has justice indeed been granted her? What about a possible reoccurrence of such an attitude by another in her future endeavour if the facts here are not put into proper perspectives.
I am emboldened to do all the necessary justice within my scope in this appeal since as it were counsel are AD-Idem. Therefore in my view the Appellant’s marital status as enshrined in our domestic laws with special reference to the 1999 Constitution of the Republic of Nigeria and particularly since we are a nation amongst the committee of nations, I am of the view that her marital status rights as protected by International Human Rights domiciled laws as applicable to this country ought to be reflected in this appeal, otherwise the appellant may still be deprived of fundamental justice.
For the benefit of the appellant and many other women who are constantly subjected to this type of discrimination. I seek to refer to some salient provisions of International Laws that has been domiciled and ratified as part of our law in Nigeria. Optional protocol to the convention on the elimination of discrimination adopted by 6th October, 1999 by United Nation General Assembly Resolution 54/4 and ratified in Nigerian 22nd December, 2000 the preamble in the Introductory of this Protocol sets out the Principles of Equality and nondiscrimination of women as embodied in the United Nation Charter, the Universal Declaration of Human Rights, and other International Human Instruments, including the convention on the elimination of all forms of discrimination against women.
It further asserts the determination of state parties which adopt the protocol to ensure the full and equal enjoyment by women of all Human Rights and Fundamental freedom and to take effective action to prevent violations of these rights and freedom.
There is also now ratified on 3rd day of May, 2008 as part of our law, the Convention on the Rights of Women with disabilities, especially when discriminated against in their place of work. Article 3 of this Convention states:
“The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
There are so many laws but suffice to mention maybe one more that is the Vienna Declaration and programme of Action adopted by the World Conference on Human Rights in Vienna on 25th day of June, 1993. The Vienna Declaration confirms and reaffirms the commitment of the World body on Human Rights and reaffirms their commitment which includes our great country Nigeria to the purposes and principles contained in the Charter of the United Nation and the Universal Declaration of Human Rights. Part of the Vienna Declaration states –
“The human rights of women should form an integral part of the United Nations human rights activities, including the promotion of all human rights instruments relating to women.
The World conference on Human Rights urges Governments, the Judiciary, other institutions, intergovernmental organizations to intensify their efforts for the protection and promotion of human rights of women and the girl-child. ”
Women’s rights have been unduly subjected to the background and they have suffered all sorts of discrimination arising from this unwholesome act of relegation in their places of employment. It is further observed that women in some cases have been derided because of their marital status and would have lost their jobs or even appointments but for the timely intervention of bodies like the National Judicial Council. This had happened in the legal profession.
In order to able to do effective justice, I hereby invoke Section 16 of the Court of Appeal Act 2007 and Inherent powers of the Court to do justice and proceed to declare that the appellant was indeed discriminated against when the respondents believed the petitioner accused and or refused to believe their employee who was not even given opportunity to confront her accuser.
In PEGASSUS TRADING GMBH VS FORTUNE INT’L BANK PLC (2001) F.W.L.R. 877 AT PAGE 899 PARAGRAPH C, MUNTAKA-COMMASSIE (JCA) (as he then was) said:
“The role of the court is that of an impartial arbiter.”
However where a trial court has drawn wrong conclusions from accepted or proved facts which do not prove the persecution’s case, the Court of appeal has duty to interfere with such findings. See Page 877 Paragraphs F – G.; PEGASSUS TRADING GMBH VS FORTUNE INTERNATIONAL BANK PLC (2001) F.W.L.R. 877, SUPRA. Hence this court is obliged to interfere with this judgment which has lacked or failed to address the sensitivity or discrimination suffered by the appellant, which is strong violation of the fundamental rights of right to privacy of family life of the appellant. See MOJEKWU VS IWUCHUKWU (2004) VOL. 7 M.J.S.C. 161; MARK VS EKE (2004) VOL. 5 M.J.S.C. 143.
An appellate court is entitled to consider any issue which did not arise on appeal in order to meet the substance of the appeal. The appellate court can also consider an issue suo motu even if it did not arise from the ground of appeal. See Section 16 of the Court of Appeal Act 2007.
Further in support of this assertion and the effect of my stand in effecting justice in this appeal without being encumbered by legal sensibilities is the renowned and celebrated case of HON. ROTIMI CHIBUIKE AMACHI VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS (2008) 1 SCNJ 1 wherein the Supreme Court inter alia held that it has a duty being the final court of the land to ensure that the determination of cases on appeal to it is reached on the merits of the question in controversy between the parties which resulted in the litigation. The court has very wide powers to do substantial justice without undue regard to technicalities. From the facts of this case, the Supreme Court has the power and the duty to invoke section 22 of the Supreme Court Act, 1990, even if no such relief was sought by the appellant to grant him such relief that will completely determine all the issues arising for enforcement of the judgment won by the appellant. See also Order 8 of the Supreme Court Rules particularly Rules 12(2) and 12(5). The relief granted to the appellant even if not asked could under the circumstances of the facts of this case amount to a consequential relief. It is the law even where a person has not specifically asked for a relief from a court the court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment, which it follows. It is not an order made subsequent to a judgment, which derails from the judgment or contains extraneous matters.
It is settled law that court can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE VS SHARUN (1985) 4 SC (PT.1) 250; OKUPE V. F.B.I.R (1974) 1 N.M.L.R. 422; LIMAN VS MOHAMMED (1999) 9 N.W.L.R. (PT. 617) 116.
Also, in PETER OBI VS INEC & ORS (2007) 9 M.J.S.C. PG. 1 AT PG. 38, Aderemi, and JSC emphatically said –
“Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial court could not have made in resolving the dispute between parties in the suit before it. The purpose of Section 16 aforesaid is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionality’s must be present before the provisions of this section can be invoked; and they are-
“(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it.
(2) The real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal.
(3) All necessary materials must be available to the court for consideration.
(4) The need for Expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented and
(5) The injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself.”
See FALEYE & ORS -VS- OTAPO & ORS (1995) 3 NWLR (PT.381) 1; INAKOJU -VS- ADELEKE (2007) 4 NWLR (PT.1025) 423 and DAPIANLONG & ORS -VS- DARIYE (2007) 8 NWLR (PT.1036) 239.”
In view of the foregoing and in the final analysis, all the issues are hereby resolved in favour of the appellant. The appeal is meritorious and therefore succeeds; the judgment of the lower court is hereby set aside.
The Appellant is accordingly re-instated in her employment as Magistrate Grade II. Further, all entitlements due to her as per her claim is hereby granted in her favour. There is no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned Lord and brother Denton – West (J.C.A.). Without allowing myself to be dragged into the ever-raging controversy as to the applicability vel non of undomesticated international conventions nay the sentiments so copiously cited and expressed as to the discrimination against women, and indeed the appellant on gender ground, the kernel of this appeal is whether the Appellant’s appointment as a Magistrate Grade II was/is statutorily flavoured and if the answer is in the affirmative, whether the learned trial judge was right not to have ordered her reinstatement and whether the order of award of one month’s salary in lieu of notice was justified in the eyes of the law having held that section 72 of the Kwara State Judicial Service Commission Regulations, 1980, did not avail the first Respondent (Judicial Service Commission) in the termination or “withdrawal” of the appointment of the Appellant.
It is pertinent to note that the first Respondent who is the employer of the Appellant is a creation of the 1999 Constitution of the Federal Republic of Nigeria as has been conceded by the Respondents in their page 4 of the Respondents’ Brief of Argument. However, their bone of contention is that the constitution did not make express provisions regulating the employment of the appellant or staffs of her category and that even the Kwara State Judicial Service Regulations 1980 which regulates the employment of staff of the category of the appellant, did not expressly contain all the necessary and clear provisions regarding the procedure for employment and discipline of all employees including the appellant.
For the above reasons therefore, the learned D.P.P J. A Mumumi Esq. relying on the authority of UBN Ltd, Vs. Ogboh (1995) 2 NWLR (Pt. 380) 467 at 664; has submitted that the enjoyment of the appellant is ordinary and therefore the common law principle of length of notice and salary in lieu of notice should apply to the circumstance of her case.
Learned counsel for the Appellant has submitted correctly, in my view, that the Appellant is a senior staff of the 1st Respondent and a public officer as defined by section 318(1) of the 1999 constitution. Besides, the 1st Respondent, by the powers vested on her by section 197 of Part II of the Third Schedule to the Constitution appointed the Appellant on salary Grade 10 and also by virtue of the powers so conferred on the 1st Respondent by paragraph 6(c) of Part II to the Third Schedule also made the Kwara State Judicial Service Regulations which regulate the appointments, promotions, dismissal and disciplinary measures against employees of the Appellant’s category.
In my view, with the making of such regulations, not withstanding its inadequacies (if at all), as contended by the Respondent, the Appellants, employment became not only statutorily flavoured but was taken away from the realm and status of ordinary master and servant relationship or such that was held at the pleasure of her employers so as to be terminated at the whims and caprices of the said employers – the Judicial Service Commission. See: OLaniyan & Ors Vs. Unilag & Ors (1985) ALL NLR (re-print) 363.
It is pertinent to note again that from the defence and evidence elicited by the Respondents, they had relied on section 72 of the Kwara State Judicial Service Commission Regulations, 1980, to purport the removal of the Appellant by “withdrawal” on the ground of perjuring about her marital status which the court held did no avail them.
Rather than hold that the removal was unlawful, unconstitutional and wrongful and that the Appellant was entitled to reinstatement and her perquisites of office as magistrate restored to her a if she had not be removed, the court held that the removal was only wrongful and as such the Appellant was entitled only to a month’s salary in lieu of notice.
I am of the view that having found that section 72 of the 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 S.C (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 so do. Fatai-Williams 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 only be terminated in the manner prescribed by the relevant statute and any other contrary manner of termination is null and void ab initio.
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.
In Nnoli Vs. U.N.T.H. Management Board (1994) 13 K.L.R (pt. 25) 163 the Supreme Court, Per Onu J.S.C, upheld the position taken by Uwaifo J.C.A (as be then was) that:-
“A. look at the reliefs sought by the plaintiff reveals that they are for declarations that her employment was invalid; that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuity her employment”.
“Once the retirement was declared null and void, that is that the decision retiring her from the service of UNTH was declared to be no decision.”
The plaintiff contract of employment was in these circumstances of this case unilaterally repudiated by the defendants. She refused to accept the repudiation in the prompt manner she wrote to the defendants to that effect. There is nothing standing in her way to have her job or office back with all the attendant rights, privileges and benefits. In other words, she is entitled to be restored to her status quo ante.”
I adopt the dicta of the learned and most eminent Lords as mine as they apply mutatis mutandis to the facts of this case and I dare say no more.
Whereas, in our instant case the Plaintiff/Appellant as in the case above cited, in her statement of claim sought for declarations that:-
(1) The purported withdrawal (termination or dismissed of the plaintiff’s appointment as Magistrate Grade II was without justification known to law, unlawful, ultra-vires, illegal oppressive, unconstitutional and null and void and of no effect;
1(a) that the purported “withdrawal” of the plaintiff’s appointment was a gross violation of the plaintiff’s right to fair hearing
(2) An order of the court setting aside the defendants’ letter dated 8/02/05 purporting to withdraw the appointment of the Plaintiff/Appellant as Magistrate Grade II;
(3) A declaration that the Plaintiff is still a magistrate Grade II on Grade Level 10 in the employment of the 1st defendant and is still entitled to be paid her salaries; allowances and all her entitlements appertaining and due to her office 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 court directing the defendants to pay the plaintiff her salaries and allowances as magistrate Grade II with the 1st defendant with effect from 27/12/04 and
(6) An order of injunction restraining the defendants, their servants agents and privies e.t.c. from unlawfully and unconstitutionally withdrawing, terminating and or in any manner or way tempering with, obstructing and committing and or inducing the commission of the breach of the Plaintiff’s appointment as Magistrate Grade II with the 1st Defendant; and this court has held that the action of the 1st Respondent in “withdrawing” or terminating the Appellant’s appointment was/is unconstitutional, the dictum of Edozie J.S.C. in Iderima Vs. Rivers State Civil Service Commission (2005) ALL FWLR (Pt. 285) 452; becomes very instructive.
In that case which facts were almost on all fours with the one at hand, the erudite law Lord held:-
Once the dismissal (in this case retirement or “withdrawal”) of a Civil Servant is declared null and void, the effect of such pronouncement is that the Civil Servant was always and is still a Civil Servant. “See Shitta-Bey Vs. The Federal Civil Service Commission (1981) 1 S.C. 26 (Re-print) at 34 per Idigbe J.S.C.
Finally, on the reliefs of reinstatement, I adopt the dictum of Oduyemi J.C.A in Iorzua Vs. Minister of the F.C.T (2004) ALL FWLR (Pt. 197) who rightly posited that:-
“Where termination of appointment is a nullity, the relief of reinstatement should be granted to take effect from the date of termination.”
On the whole, shun of all the sentiments expressed by my Lord as to the applicability of international conventions domesticated or undomesticated, which in my humble opinion has been expertly handled by Lord C.C. Nweze J.C.A in his capacity as a guru of international law, the bottom line is that I agree with the lead judgment that the Appeal is meritorious and should and is hereby allowed on all grounds, the issue having been resolved in favour the Appellant.
I also set aside the judgment of the Lower Court and enter judgment in favour of the Plaintiff/Appellant granting all the reliefs sought.
I abide also by the order as to costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the privilege of reading the draft of the leading judgment which my Lord Denton- West, JCA just delivered now. I recall that I had occasion to enter a caveat on the propriety of this court expressing opinion on issues it raised suo motu without affording counsel the opportunity of addressing their ever effervescent opinions thereon. As it would appear that my solicitous, albeit, anxious caveat was not reckoned with, take the view that I should employ this occasion to donate my misgivings to the public domain as part of my contribution to the judgment under consideration.
One impregnable canon which has evolved as ubiquitous corollary to the doctrine of stare decisis is the postulation that all other courts in Nigeria may loosely be compared to the Biblical Centurion at Capernaum, who described himself as a man under authority. The difference, however, is that the said courts are under a different kind of authority: the irreproachable authority of the rationes decidendi of the judgments of the Supreme Court.
Hence, no other court is permitted the indulgence or allowed the liberty to arrive at decisions that have the effect of nibbling at or denigrating the magisterial prescriptions of the apex court. Let me explain.
The controversy whether an international treaty [by whatever name it is called] has the force of law in Nigeria before its enactment into law by the’ National Assembly has long been laid to rest. The cases are many, so many indeed, that it would serve no useful purpose rehearsing them here. Thus, it may just suffice to cite the illustrative decision of the Supreme Court in Abacha and Ors v Fawehinmi (2001) 51 WRN 29 and one decision of this court on the matter, M. H. W. U. N v H. M L. P. (2005) 28 WRN 127. The rationale of these decisions is that treaties which have not been domesticated cannot form part of Nigerian Law, afortiori they cannot by invoked to afford remedies to litigants.
Although, that should not delay us here, this posture has provoked divergent scholastic views in the literature. However, the point must be made that these views remain what they are: academic views, see, C. C. Nweze, “Evolution of the Concept of Socio-Economic Rights in Human Rights Jurisprudence: International and National Perspectives”, in C. C. Nweze (ed.), Justice in the Judicial Process (Enugu: Fourth Dimension Publishers Ltd., 2002) 521-543; M. O. Unegbu, “Resolving the dilemma of hierarchy between the African Charter and the Nigerian Constitution”, in Vol. 6 NO.1 1999 Abia State University Law Journal 13; E. S. Nwauche, ” The African charter on Human and Peoples’ Rights and the Nigerian Constitution: the issue of superiority, in Vol. 6 NO.1 1999 Abia State University
Law Journal 21; FA Nlerum, “The Application and some Implications of the Hamburg Rules for Nigeria” 9 RADIC (1997) 386, 390; J. C. Mubangizi, “The Constitutional Protection of Socio-Economic Rights in selected African Countries: A Comparative Evaluation” in 2 Afr. J. Legal Stud. 1 (2006) 1; C. C. Nweze and Oby Nwankwo (eds.), Current Themes in the Domestication of Human Rights Norms (Enugu: Fourth Dimension Publishers Ltd., 2003) 14-25; 123; 163; C. C. Nweze, “Reflections on Selected Judicial Decisions Relating to Women’s Rights in Nigeria”, in UNIZIK LAW JOURNAL Vol. 4 No. 1 pages 1-19.
One further point which must be noted here is that notwithstanding the position in other jurisdictions, see, Fred W. Reinke, “Treaty and non-treaty Human Rights Agreements: A case study of Freedom of Movement in East Germany” in Colum J. TRANSNAT’ LL (24, 1986) 649 651 fn 11; H. Kor, “international Law as part of our Law”, in 98 AM. J. INT’LL 43, 52-53 (2004); C. Bradley, “Our Dualist Constitution and the Internationalist Concept”, in 51 STAN. L. REV. 529, 530-531 (1990); J. K. Levit, “The Constitutionalisation of Human Rights in Argentina: Problem or promise?” in 37 CGLUM.J. TRANSN’LL 281, 293-309 (1999); A. Cassese, Modern Constitutions and International Law; P.F. Gonidec, “Droit International et droit interne en Afrique”, 8 RADIC (1996) 189, 796, the stark truth is that in Nigeria, the law remains what the apex lourt said in Abacha and Drs v Fawehinmi (supra).
I am, therefore, ill-at-ease with the incautious manner in which the leading judgment has copiously and audaciously applied Provisions of treaties that are yet to be domesticated in Nigeria. The leading judgment cites such international Human Rights instruments like the Convention on the Elimination of all forms of Discrimination against Women (CEDA W); the Optional protocol to CEDA W; Convention on the Rights of Women with Disabilities etc (page 30).
I am truly scared, indeed, frightened by the temerity of the leading judgments which characterizes the Vienna Declaration and programme of Action (page 3 I) as part of Nigerian Law.
It is even more worrisome when this posture is viewed against the background of the commandment that a court would be doing havoc to the inveterate principles of fair hearing when it raises issues suo motu without affording the parties the opportunity of responding to them.
My principal reservations against the leading judgments are, thus, two-fold. In the first place, I have painstakingly perused the two issues canvassed by the parties in this appeal. Nowhere in their briefs did they raise, even tangentially, issues boarding on the following which the leading judgments dwelt on:
(a) The violation vel non of the norms of the Universal Declaration of Human Rights [1 note in passing that the world commemorated the sixtieth anniversary of this Declaration on December 10, 2008];
(b) The invasion of the appellant’s right to privacy and family life as guaranteed by the said Universal Declaration;
(c) The applicability of the non-discrimination norm ordained In section 42 of the Constitution of Nigeria;
(d) The justiciability of CEDAW and its Optional Protocol in Nigerian Courts;
(e) The status of the Beijing Declaration and programme of Action in Nigerian domestic law much less their justiciability in Nigerian Courts for the purpose of employing them as legislative hangers for assessing administrative or executive actions;
(f) The question of discrimination against women;
(g) Women’s freedom to bear their maiden names;
(h) The protection of the marital status of tie appellant by what the leading judgments described as “internationally human rights domiciled laws as applicable to this country”!
(i) The status of the United Nations Charter in Nigerian domestic law.
Even then, as already noted above, the position of the Supreme Court on the status of treaties that have not been domesticated in Nigeria is unequivocal. In effect, therefore, I take the humble view that to subscribe to the approach of the leading judgments is to unwittingly prepare the ground for a frontal conflict with the apex court, if and when this matter goes on appeal to that august court: an event’ I can almost predict with certainty!
Like Pontius Pilate, therefore, I would like to wash my hands [and if I have the authority, the hands of this court] off such an approach that will, undoubtedly, precipitate a collision with (I may even add chastisement from) the Supreme Court.
My second reservation has to do with the propriety of this court raising issues suo motu and expressing opinions on them without hearing the views of counsel on those issues. The appellant formulated only two issues for the determination of this court. The respondents adopted these two issues. Neither the appellant nor the respondents raised any question having any nexus with the litany of extraneous issues taken up in the leading judgments.
Surely, the question of the justiciability of international treaties or conventions and their Protocols, nay more the legal status of the vienna Declaration and Programme of action are weighty issues that deserve reasoned and elaborate consideration in a judgments [of a full panel of this court, I dare say since they would involve the interpretation of very crucial constitutional questions] which must take account of the submissions of counsel on them and against the background of the doctrine of stare decisis. This is even more so since the Supreme Court has taken a firm position on the question of the applicability of treaties in Nigerian domestic law.
Subject to the above reservations, I equally take the view that the appeal is meritorious. However, for the avoidance of doubt I would like to note that my finding in this regard is not predicated on the provisions of the Protocols and Declarations cited in the leading judgments!
Now, in this appeal, the appellant submitted two issues for determination, viz:
1. Whether or not the lower court was right in holding that the appellant’s employment is not clothed with statutory flavour and she is therefore not entitled to re-instatement because the withdrawal of her appointment by the respondents is wrongful and not unlawful.
2. If the answer to issue No 1 above is in the negative, whether or not, having regard to the fact that the appellant was employed as a Magistrate Grade II on Grade Level 10, the learned trial Judge was right in awarding the appellant one month’s salary in lieu of notice.
Arguing the first issue, Jawondo, of learned counsel for the appellant submitted that the lower court was in serious error when it held that the appellant’s employment was not clothed with statutory flavour. He observed that the lower court stated the law correctly on the meaning of employment with statutory flavour when it referred to the case of Imolemo v WEST AFRICAN EXAMINATION COUNCIL (1999) 9 NWLR (pt. 265) 303 where at page 317 Karibi – Whyte JSC stated 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
However, he submitted that the lower court did not apply the law and the definition of employment with statutory flavour” as stated in Imolemo v WAEC (supra) when it held that the appellant’s employment was not clothed with statutory flavour.
He conceded that there are two vital ingredients that must co-exist before a contract of employment can be said to have statutory flavour:
(i) The employer must be a body set up by the Constitution or statute and
(2) Either the statute or regulations made pursuant to the, Constitution or principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.
He maintained that the two ingredients are present in the employment of the appellant.
He explained that:
(1). The first respondent is a creation of section 197 and Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999. Thus, it is vested with the power to appoint, dismiss and exercise disciplinary control over its staff, including Magistrates.
(2). pursuant to the power conferred on it b. Paragraph 6 (c) of Part II of the Third Schedule to the Constitution, it made the Kwara State Judicial Service Regulations 1980 which among other things, regulate/the appointment, promotion, dismissal and disciplinary measures against its employees such as Magistrates.
(3) The first respondent [by a letter of 23/12/04] appointed the appellant a Magistrate Grade II on Grade Level 10 [she accepted the appointment by her letter of 24/12/04J and accordingly assumed duties on 27/12/04.
(4)By virtue of (3) above, the appellant is a senior staff of the first respondent.
(5) As a senior staff of the first respondent, which is a creation of the Constitution, she [as a Magistrate] is a public officer as defined by section 318 (1) of the 1999 Constitution.
Based on the above facts, counsel noted that the appellant’s employment is clothed with statutory flavour.
He further submitted that the relation hip between the appellant and the first respondent, a constitutional body, is neither one of master and servant relationship under the common law nor employment where office is held at pleasure. Rather, their relationship falls squarely on employment protected by statute or with statutory flavour.
He cited Iderima v RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 S.C. (pt. II) 135 where at page 151 the Supreme Court stated that:
… 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:-
(1) A pure master and servant relationship under common law.
(2) Employment where officer (sic) is held at pleasure.
(3) Employment protected by statute .
See, Ridge v Baldwin & Ors (1964) AC 40; Olarewaju v Afribank (Nig) Plc (2001) 7 S.C. (pt. III) 1, (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. Invang (1993) 5 NWLR (pt. 291) 100 at 117. Shitta- Bey v. Federal Public Service CommissIOn (1981) 1 S.C. (Reprint) 26; (1981) 1 S.C. 40 at P.56.
He further noted that the respondents based their “withdrawal” of the appellant’s appointment on section 72 of the Kwara State Judicial Service Regulations 1980.
However, the trial court had found that the provisions of section 72 of the said Regulations do not apply to the appellant’s position since, according to DW1; marital status is not a consideration or condition for appointment as a Magistrate.
He, therefore, submitted that the said Regulations provide for and regulate the appointment of the appellant with first respondent.
Counsel referred to page 121 lines 3 – 11 of the record where the learned trial judge held inter alia:
Even though it is agreed that the Kwara State Judicial Service Commission Regulations 1980 applies (sic) to the claimant there is nowhere in the claimant’s pleading where it is pleaded that any of the provisions 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 the above, I am unable to hold as submitted by the claimant’s council that the claimant’s appointment is clothed with statutory flavour and therefore entitled to an order of re-instatement.
He then dismissed this opinion as being erroneous both in law and in fact. He gave reasons. In the first place, he submitted that it is trite that parties do not plead Laws but facts to which the appropriate laws are to be applied, F.C.D.A. v ALHAJI MUSA NOIBI (1990) 5 S.C.N.J. 186,196.
He further submitted that Laws or enactments include Subsidiary Legislation such as the Kwara State Judicial Service Commission Regulations 1980 applicable in this case and which the court is enjoined to the judicial notice of under Sections 73 and 74 the Evidence Act, Lekanmi v Adebayo & Ors (2003) 4 SC (pt. II) at 104. He explained that it is clear from paragraphs 13, 15 and 17 of the Statement of claim (page 4 of the Record) that the appellant premised his action on the grounds inter alia that the reason for ‘withdrawal’ of her appointment by the respondents is unknown to law which in this con include the Kwara State Judicial Service Commission Regulation 1980.
Above all, in paragraph 16 of the Statement of Defence (Page 42 of the Record), the defendants/respondents pleaded thus:
The defendant in answer to Paragraphs 15 of the Statement of Claim state (sic) that the 1st defendant being a body saddled with the responsibility of inter-alia appointing/dismissing Magistrate do (sic) normally exercise such duty with adequate precaution in line with the laid down procedure, relevant rules and the enabling laws (italics supplied)
He submitted that the phrase ‘relevant’ rules and the enabling laws’ in paragraph 15 of the Statement of Defence means nothing other than the Kwara State Judicial Service Commission Regulations 1980 and the Constitution, respectively.
According to him the parties fought the case on the basis that the appointment of the appellant is regulated by the Constitution and the Regulations 1980 which are not S.C. (pt. III) 14 at 20.
It was further noted that, in their addresses, parties relied ort the Kwara State Judicial Service Commission Regulations 1980 as the Instrument that regulates the appointment of the appellant with the respondents and the learned trial judge also treated and considered the Regulations as such in his judgment.
Moreover, the Regulations make detailed provisions for appointment and discipline of officials of Kwara State Judicial Service Commission including those in the category of the appellant.
What is more, the learned trial judge found that the provisions of section 72 of the Regulations do not avail the respondents as marital status’ (according to DW1) is not a consideration or factor for appointment as a magistrate. ‘
He, therefore, submitted that from the totality of the facts pleaded, evidence and addresses of the parties before the court and even some pronouncements of the learned trial judge on the Kwara State Judicial Service Commission \Regulations 1980 particularly sections 3, 28 and 72 thereof, it is dear that the appointment of the appellant is consensually agreed to be regulated by the Constitution 1999 and the Kwara State Judicial Service Commission Regulations 1980. In effect, the appellant’s employment is clothed with statutory flavor: she is, therefore, entitled to re-instatement, University of florin Teaching Hospital Management & Anor v Oloruntola (2007) All FWLR (pt 370) 1415; UITHMB v Ajide (2005) 15 WRN 113 at 134 and CBN v IGWILLO (2007) 5 SCNJ 52 at 67, 68 and 69.
Salman Jawondo made another brilliant submission. As opposed to the learned trial Judge who held that the withdrawal of appointment of the appellant as Magistrate Grade II by the respondents was merely wrongful; he maintained that the said act was actually unlawful.
I find his explanation very fascinating: he learned trial judge having held that the respondents failed to prove the reason given for the withdrawal of the appellant’s appointment and that the provisions of Section 72 of the Kwara State Judicial Service Commission Regulations 1980 do not avail the respondents since marital status is not a consideration for appointment as a Magistrate [thereby implying that the appellant did not obtain her appointment by making false statement or concealing any material fact, which if/disclosed would have militated against her being offered the appointment], it follows that the withdrawal of the appellant’s appointment is in contravention of the regulations and therefore unlawful.
Further, the learned trial judge also found that the allegation of non-disclosure of marital status leveled against the appellant [and for which her appointment was withdrawn] was an allegation of perjury (criminal allegation) having regard to the declaration in exhibit 9 and that the respondents failed to prove or substantiate the allegation.
In his view, having so found, the “withdrawal” of the appellant’s appointment on the basis of the unproved and unsubstantiated criminal allegation of perjury, is both wrongful and unlawful and not wrongful only, citing Black’s Law Dictionary (8th edition), pages 1644 and 1574 for the meanings of the words ‘wrongful’ and “unlawful”, respectively.
Counsel took the view that the ‘withdrawal of the appellant’s appointment by the respondents is in violation of the Kwara State Judicial Service Commission Regulations 1980 as the allegation against the appellant by the respondents does not constitute violation of Section 72 of the Regulations upon which the respondents purportedly anchored the ‘withdrawal’ of the appellant’s appointment.
He, therefore, submitted that the ‘withdrawal of appointment of the appellant on the unproved and unsubstantiated criminal allegation of deliberate misstatement or concealment of marital status is unlawful.
Finally, he maintained that since the appellant’s appointment was clothed with statutory flavour and the withdrawal was not in compliance with the Kwara State Judicial Service Commission Regulations 1980, the appellant is entitled to reinstatement and not to salary in lieu notice, Mr Mumini, learned counsel for the respondents in his address on this first issue referred to page 118 of the record where the lower court held thus:-
However it should not be mistaken that once a company, corporation or Government Agency is set up by Statute, all the employees thereof Ipsa facta 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 statue must make express provision regulating the employment of the staff of category of employee concerned especially in matter of discipline…
Emboldened by this view, he submitted that the fact that an organization or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of a special character ruling out the incidence of a mere master and servant relationship. According to him, the court must confine itself to the terms and contract of service between the parties, citing Adegbite v College Of Medicine, UNILAG (1973) 5SC 149; NPMB v Adewunmi (1972) 1 ALL NLR (pt 2); INT DRILLING W v Ajijala (1976) 2 SC 115; Sule v NCB (1965) 2 NWLR (pt 17); Shitta-Bey v FSCC (1981) 12 NSCC 28; Laoye v FCSC (1089) 2 NWLR (pt 106) 652; Olatunbosun v NISER COUNCIL (1988) 2 NWLR (pt 80) 25; Olaniyan v UNILAG (1985) 2 NWLR (pt 9) 599.
Counsel further submitted that the fact that the first respondent herein is a creation of statute does not elevate all its employees, the appellant inclusive, to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour, Fakuade v OAUTH (1993) 5 NWLR 47 at 57-58.
Like the lower court, Mumini took the view that two vital ingredients must co-exist before an employment can be clothed with statutory flavour.. They are:
1. That the employer must be a body set up by statute.
2. That stabilizing statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.
He conceded that the first respondent is a creation of the Nigerian Constitution. However, he observed that the Constitution did not make express provisions regulating the staff of the category of the appellant. In his further submission the Kwara State Judicial Service Regulations 1980 which make provisions governing the employment of staff of the category of the appellant do not expressly contain all the necessary and clear provisions regarding the procedure for employment and discipline of all the employees of the first respondent including the appellant herein.
He noted that a perusal of the said Regulations would reveal that they contain no salient provisions regarding length of notice for terminating the appointment of the category of various staff. They, equally, have no provision for payment of requisite equivalent month’s salary in lieu of notice.
He, therefore, submitted that before an employment could be said to be governed by statute, the detailed procedure for employment and discipline of employees must be clearly and expressly spelt out, otherwise such employment cannot be said to be governed by statute and covered with statutory flavour. At best, such an employment can only be regarded as one governed by the terms under which the parties agreed to be master and servant.
He submitted that the meaning, import and consequence of an employment clothed with statutory flavour have been clearly elucidated by the apex court in UNION BANK OF NIGERIA LTD v Ogboh (1995) 2 NWLR (pt 380) 467, 664.
He maintained that the appellant’s employment is not clothed with statutory flavour. He explained that Imoloame v. WAEC (supra) does not support the appellant’s case because all the efforts made by the appellant therein to confer statuary flavour on his employment were refused by the Supreme Court.
He, also, took the view that the appellant’s employment was never made under the Civil Service rules. Above all, no reference was made by both parties to the Civil Service rules throughout the proceeding before the trial Court. The appellant’s application for employment as contained on page 41 of the record shows that her employment is not governed by the Civil Service rules. Rather her employment is governed by the Judicial Service Commission Regulations 1980 which do not provide any detailed procedure for either discipline or termination of employ lent of the category of the appellant as an employee.
Mumini further explained that employment, promotion and discipline of a Judicial Staff within Kwara State are regulated by the Kwara State Judicial Service Commission. The appellant’s letter of appointment [exhibit 1, page 27 of the record] is clear as to the nature of appointment she was offered.
He urged the court not to disturb the finding of the learned trial Judge on the nature of the appellant’s employment.
There are at least three reasons why Jawondo’s position on the first issue has to be sustained. In the first place, the view of the lower court [page 121 lines 3 – 11 of the record] was an unwarranted assault on the sacrosanct law on Pleadings. Listen to that court:
Even though it is agreed that the Kwara Stat Judicial Service commission Regulations 1980 applies (sic) to the claimant there is nowhere in the claimant’s pleading where it is pleaded that any of the provisions relating to termination of her employment stated therein has been breached.
I will refrain from describing this opinion as scandalous! I am entirely in agreement with Jawondo that it is trite that parties do not plead Laws but facts to which the appropriate Laws are to be applied. Regrettably, I am constrained by this erroneous opinion of the lower court to go over this elementary point in these judgments for the benefit of the lower court and all other courts that may fall in to the same erroneous conception.
As I had cause to explain elsewhere, see C. C. Nweze, Contentious Issues and Responses in Contemporary Evidence Law in Nigeria (Vol. One) (Enugu: IDS, UNEC, 2003) 11-12 evidence signifies a relation between two facts: (i) the principal fact or proposition to be established, that is, the fact which is sought to be proved, called the factum probandum, citing J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials At Common Law (3rd, Edition) (Boston: Little, Brown and Company, 1940).
(ii) The evidentiary fact or material evidencing the proposition, that is, the fact which tends to establish the principal fact, called the factum probans (plural: facta probantia). In the vocabulary of pleadings, the factum probandum, being the material fact on which the parties to an action rely, must be Pleaded, that is, must be set out either in the Statement of Claim or Statement of Defence, Okagbue and Ors v Romaine (1982) ANLR, 111,123. On the other hand, the factum probans, being the subordinate fact, that is, the evidence which sustains the material fact is not pleaded. Being the means of marshalling or producing the material facts, the factum probans is not required to be set out in the pleadings. It is at the actual hearing that evidence is led on the subordinate fact, that is, the factum probans, Okagbue v Romaine at page 123.
In effect, while all material facts are pleaded, evidence is not pleaded. In the same vein, provisions of enactments are not pleaded. Enactments are not pleaded because pursuant to section 74 of the Evidence Act, courts have a duty to take judicial notice of Laws or enactments including subsidiary enactments such as the said Kwara State Judicial Service Commission Regulations 1980.
Secondly, the conclusion of the lower court was even a logical summersault! Now, the court had found that Regulation 72 did not avail the Respondents. This was pursuant to its finding that marriage was not a consideration for the appointment of magistrates. Hear what His Lordship said on this point:
… DW1 told the court that marital status is not a condition for the appointment of Magistrates by the first defendant. Therefore, the provision of section 72 of the first defendant’s Regulations, 1980 which said that any person that obtain (sic) 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 first 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 (sic) evidence.
Pray, if the first respondent employed ground which did not a ply to the appellant in “withdrawing her appointment”, what other argument did the lower court expect her to canvas before it could declare the act complained of ultra vires the respondents?
That is not all! At page 115 of the record, the lower court had this to say about exhibit 10:
… The allegation contained in exhibit 10 (which is also an attachment to exhibit 3, the defendant (sic) letter to the claimant) which is fraudulent misrepresentation of her marital status is an allegation of crime which by virtue of section 138 of the Evidence Act…ought to be proved beyond reasonable doubt even in civil proceedings…
The above declaration show (sic) that any false statement made by the claimant in exhibit 9 Amount to criminal offence which may render her liable to prosecution…
From the above excerpt, it is not in doubt that the learned trial judge knew where the burden of proof lay. Jawondo contended that since the court found that the “withdrawal” of the appellant’s appointment was predicated on the unproved and unsubstantiated criminal allegation of perjury, it should have declared the action both wrongful and unlawful and not wrongful only! I am in agreement with him.
To be able to underscore the weight of this point, it would perhaps be more appropriate to set it in the proper constitutional con. Section 197 (1) of the Constitution of the Federal Republic of Nigeria, 1999 provides for the establishment of the State Executive Bodies. The State Judicial Service Commission is provided for in section 197 (1) (c). In part 11 of the third Schedule of the Constitution, detailed provisions are made on the said of the said second part of the Third Schedules provides inter alia:
6 The Commission [State Judicial Service commission] shall have power to- (c) to (sic) appoint, dismiss and exercise disciplinary control over… Magistrates… (italics for emphasis)
It is not in doubt that pursuant to the powers conferred on it by the above paragraph, the first respondent made the Kwara State Judicial Service Regulations 1980 [which have constitutional force, Idoniboye-Obu v NNPC (2003) 2 NWLR (pt. 805) 589, 643-644] for the appointment, promotion, dismissal and the invocation of other disciplinary measures against its employees.
Simply put, therefore, the finding of the lower court comes to this: the first respondent, in “withdrawing” the appointment of the appellant, acted outside the scope of its powers under the said Regulations. In strict legal terms, the respondent acted ultra vires!
With respect, therefore, both the lower court and Mumini were in error. They elided a major factor: the status of the first respondent as a State Executive Body which derives its subsistence from the Constitution itself!
Thus, to deny the character of the legal relationship between the appellant and the first respondent is, indeed, to deny the status of the first respondent itself. In Iderima (supra), Oguntade JSC at 158 endorsed the concept of vires which Oputa SC had espoused in Olaniyan and Ors v UNILAG and Ors (1985) All NLRS (re-print) 363. Oputa JSC at page 383 had stated thus:
Given the background of the removal of the appellant on the ground of misconduct, could the respondents have the removed the appellant under the common law rules regulating ordinary master and servant relationship? The answer is No. It is here that the concept of vires comes in… a corporation or company which is created by or under a statute cannot do anything at all unless authorized expressly or impliedly by the statute or instrument defining its powers. It simply has not got the vires or the powers or authority to act outside the statute. If it so acts, the act will be held to be ultra vires and declared Void. (Italics for emphasis)
Thus, having found that the appellant’s marital status was not a precondition for employment under Regulation 72, the lower court should have pronounced the action of “withdrawing” the appellant’s appointment ultra vires the first respondent.
Now, Mumini also contended the Judicial Service Commission Regulation 1980 does not provide any detail procedure for either discipline or termination of employment of the category of the appellant as an employee.
Quite apart from the fact this assertion is incorrect, there is authority for the proposition that even in the absence of such provisions, the court would be on firm round to invoke the rules of procedural fairness, Aiyetan v National Institute for Oil Palm Research (1987) 3 NWLR (pt 59) 48.
In answer to the first issue, therefore, I am under obligation to ado the prevailing phraseology, a phraseology which though not free from strictures, has long been adopted and employed by the Supreme Court in many cases, namely, that the appellant’s employment is clothed with statutory flavor!, see, Imolemo v WAEC (supra); Iderima v RSCSC (supra); Igwilo v CBN (supra) etc. She is, therefore, entitled to re-instatement. This finding has a direct bearing on the second issue to which I now turn.
ISSUE TWO
On this issue, Jawondo contended that even if the learned trial judge was right on the three issues, namely, the status of the appellant’s enjoyments [which it held was not clothed with Statutory flavour]; the fact that her ‘withdrawal’ was not unlawful and finally that she was not entitled to reinstatement, it was wrong in awarding the appellant one month salary in lieu of notice.
He re-iterated the point that the appellant, as a Magistrate Grade I on Grade Level 10, is a senior officer in the Public Service of Kwara State employed b the first respondent, a creation of the Constitution. He referred to exhibits I and 2 ages 27 and 28 of the record].
He submitted that the office or position of a Magistrate is a creation of the combined effect of the provisions of sections 197 of the 1999 constitution and Part II of the Third Schedule thereto; citing sections 4 and 8 of the Criminal Procedure Code Law, Cap 43 Laws of Kwara State 1994.
He maintained that the office is of a permanent nature with its functions, duties and powers defined or prescribed by sections 9, 10, 12 (1) 13, 15, 16, 7, and 18 and appendix ‘A’ to the Criminal Procedure Code Law of Kwara State Cap 4 Laws of Kwara State 1994. The office of a Magistrate, therefore, is public office as d fined by Section 318 of the Constitution of the Federal Republic of Nigeria 1999, citing the Registered Trustees of the Planned Parenthood Federation of Nigeria & Anor v Shogbola (2005) 1 W.R.N. 153 at 171-172.
Jawondo submitted that since the appellant is senior public officer, and in the absence of specific provisions in exhibit 1 and or the Kwara State Judicial Service Commission Regulations 1980, prescribing one month salary in lieu of notice the one month salary in lieu of notice, which the learned trial judge awarded her is ridiculous in the circumstances of the case.
He further submitted that with the status of the appellant as senior public officer, it cannot be within the contemplation of the parties that, in the case of unlawful ‘withdrawal’ or termination of appointment, as it is the case here, that the appellant will be entitled to one month’s salary in lieu of notice as it cannot be imputed that, arties can by one month notice put an end to the relationship.
He urged the court to hold that the lower court was wrong in awarding one month’s salary in favour of the appellant in lieu of notice.
He persuaded the court to hold that the appellant’s employment is clothed with statutory flavour and she is, therefore, entitled to re-installment. If, however, the court finds otherwise, it should award her twelve months’ salary in lieu of notice.
Mumini, for the respondents submitted that having regard to, the nature of the appellant’s employment, the learned trial Judge was right in awarding the appellant one month’s salary in lieu of notice.
He adopted all our arguments as contained in Issue 1. He submitted further that since the appellant’s appointment does not enjoy statutory flavor, the measure of damages recoverable by her is prima facie the amount she would have earned during the period necessary for the lawful termination of the contract of employment, KATTO v CRN (1990) 6 NWLR (pt. 607), 390 at 406
He maintained that in this case, there is no provision in the claimant’s letter of appointment (exhibit 1) or the Kwara State Judicial Service Commission Regulations as to the length of notice the claimant is entitled to before her employment can be brought to an end, neither was there any evidence either documentary or oral before the trial Court upon which the length of time notice can be determined.
In the light of the above, therefore, the trial court was right to have used a reasonable notice presumable under the law as the yardstick for calculating what was reasonable in the circumstances of this case, OGUNSANMI v CF. FURNITURE (WA) CO LTD (1961) ALL NLR 802.
He look the view that the learned trial Judge gave proper consideration to the status of the respondent’s appointment and the number of days she has put into service [which was just 47 days before her appointment was terminated].
He further submitted that even in an employment clothed with statutory flavour, as in the Civil Service of the Federation and the State; an employee is entitled only to three months in lieu of notice.
He also noted that the burden of proof of nature of employment and the terms of notice required for termination are the onus placed on the plaintiff/appellant which she must establish before she could be entitled to judgment,. MOMOH V. CBN (2007) ALL FWLR (pt 395) 420 at 439.
In his view, the appellant having failed woefully to establish this before the trial court, the lower court had no option than what it did in the circumstances.
Against the background of my findings and conclusion with respect to Issue I, I take the view that the lower court was wrong to have awarded the appellant one month’s salary in lieu of notice. The proper order should have been that of re-instatement. The answer to the second issue, therefore, is that the lower court was wrong in awarding her one month’s salary in lieu of notice.
In all, I resolve the two issues in favour of the appellant. I hereby enter an order setting aside the judgments of the lower court. I hereby order the respondents to re-instate the appellant forthwith. I shall make no orders as to costs.
Appearances
SALMAN JAWONDO ESQ.For Appellant
AND
J. O. MUMINI ESQ., DPP KWARA STATE MINISTR OF JUSTICE.For Respondent
