FEDERAL MEDICAL CENTRE, IDO. EKITI & ORS V. SHUAIB ADEWOLE ALABI
(2011)LCN/4396(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/EKT/23/2010
RATIO
WHETHER WHERE THE PROVISIONS OF A STATUTE GOVERN THE CONDITIONS OF EMPLOYMENT OF AN EMPLOYEE, THE EMPLOYER IS BOUND TO COMPLY WITH THESE CONDITIONS WHEN IT COMES TO TERMINATION OF APPOINTMENT OF THE EMPLOYEE
…where the provisions of a statute govern the conditions of employment of an employee, the courts regard the employee as having secured a special legal status other than the ordinary master and servant relationship with his employer. In that case, the employer is bound to comply with these conditions when it comes to termination of appointment of the employee, otherwise the act of termination would be declared wrongful, null and void. However, where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour. This is so notwithstanding the fact that the employer is a creation of statute or is a statutory corporation. PER UWANI M. ABBA-AJI, J.C.A.
WHETHER THE FACT THAT AN ORGANISATION OR INSTITUTION IS A STATUTORY BODY MEANS THAT ALL ITS EMPLOYEES’ EMPLOYMENT ARE PROTECTED BY STATUTE
The fact that an organisation or institution is a statutory body does not mean that its employees are protected by statute. See Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt.291) 47; Idoniboye-Obu v. N.N.P.C. (2005) 3 NLLR (Pt.8) 276. PER UWANI M. ABBA-AJI, J.C.A.
WRONGFUL TERMINATION OF APPOINTMENT: THE BURDEN PLACED ON THE EMPLOYEE IN A CLAIM FOR WRONGFUL TERMINATION OF APPOINTMENT
…in a claim for wrongful termination of appointment, the onus is always on the employee to first, place before the court the terms of contract of employment and secondly, to prove in what manner the terms were breached by the employer. The contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. The principle is that it is not for the employer who is a Defendant to the action brought by the employee to prove any of these. See Amodu v. Amode (1990) 5 NWLR (Pt.150) 356. PER UWANI M. ABBA-AJI, J.C.A.
EMPLOYMENT WITH STATUTORY BACKING: WHETHER AN EMPLOYMENT WITH STATUTORY BACKING CAN ONLY BE TERMINATED IN THE WAY AND MANNER PRESCRIBED BY THAT STATUTE
It is trite that employment with statutory backing must be terminated in the way and manner prescribed by that statute. Any other manner of termination of the employment which is inconsistent with the relevant statute is null and void and of no effect. PER UWANI M. ABBA-AJI, J.C.A.
HOW A PUBLIC SERVANT CAN BE VALIDLY REMOVED FROM SERVICE; THE EFFECT OF A DISMISSAL OR TERMINATION OF APPOINTMENT OF A CIVIL SERVANT BEING DECLARED NULL AND VOID
A public servant therefore, can only be validly removed from service if the procedure prescribed by law was followed and once the dismissal or termination of appointment of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still is a civil servant. Therefore the learned trial judge was right when he ordered reinstatement of the Respondent. See lderima vs. R.S.C.S.C. (supra), UBN Ltd v. Ogboh (1995) 2 NWLR (Pt.380) 647; Aiyetan v. Nifor (1987) 3 NWLR (Pt.59) 48; Garba v. FCSC (1988) 1 NWLR (Pt.71) 449; Sapara v. U.C.H.M.B. (1988) 4 NWLR (Pt. 86) 58. PER UWANI M. ABBA-AJI, J.C.A.
CAPACITY TO SUE AND BE SUED: WHETHER THE COMPETENCE OF A PARTY TO SUE AND BE SUED MUST BE CHALLENGED IN LIMINE BY AN APPLICATION ON NOTICE TO THE OTHER PARTY AND DECIDED BY THE COURT BEFORE TAKING OF EVIDENCE
The competence of a Plaintiff to sue or a Defendant to be sued is a preliminary issue in any action. It must be pleaded by the party challenging the competence of the other party raised in limine by an application on notice to the other party and decided by the court before taking of evidence See Administrator/Executor of the Estate of General Sani Abach (Deceased) v. Eke-Spiff (2003) NWLR (Pt.800) 133. In the instant case, the Appellants after pleading the non-juristic personality of the 3rd and 4th Appellants did not raise the issue in limine by way of an application or a motion on notice to the other party for determination by the court before taking of evidence commenced. The Appellants therefore are deemed to have waived or slept on their right and could not, having fought the case to conclusion, be heard to challenge the competence of the 1st and 4th Appellants. See Irepodun v. Ifelodun L.G. v. Balemo (2008) ALL FWLR (Pt.420) 682 @ 708. Non joinder or misjoinder of a necessary party is only a procedural irregularity which does not affect the jurisdiction of the court. PER UWANI M. ABBA-AJI, J.C.A.
EMPLOYMENT WITH STATUTORY FLAVOUR :WHEN IS AN EMPLOYMENT CLOTHED WITH STATUTORY FLAVOUR; CATEGORIES OF CONTRACT OF EMPLOYMENT
The fact that the Respondent is a statutory body does not automatically mean that the condition of service of its employees must be of a special character ruling out the relationship of mere master and servant. It is only when that employment is protected by statute which makes provisions for the procedure for employment and termination of such employment that it can respectfully be said that the employment is clothed with statutory flavour. See Central Bank of Nigeria v. Agwilo (2007) 14 NWLR (Pt.1054) 386 @ 393; Olaniya v. University of Lagos (1985) 2 NWLR (Pt.9) 597; Shita-Bey v. FCSC (1981) 1 SC 40. There are three categories of contract of employment namely:- 1. Those regarded as purely master and servant; 2. Those where the servant holds office at the pleasure of the employer; and 3. Those where the employment is regulated or governed by statute, otherwise known as having statutory flavour. contract of master and servant may be subject to either statutory or common law rules or both. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all, but if he does so in a matter not warranted by the particular contract under review, he must pay damages of his breach. Therefore, an employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employer. Any other employment outside that category if governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos (supra) and Shitta-Bey v. F.C.S.C. (supra). Where an organisation or parastatal of Government makes no provision for the procedure for employment and termination of such employment, then such employment cannot be said to be clothed with statutory flavour. Infact, it is the Rules and regulations governing employment, disciplinary action, termination and dismissal of an employee from the service of the employer that make the employment to be said to be one with statutory flavour or clothed with statutory ,flavour not because the employer is Government agency or Parastatal. Where an employee’s employment is one with statutory flavour, the employer may not be disciplined or his employment terminated and or dismissed except in accordance with the Rules and regulations governing such employment. PER UWANI M. ABBA-AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOHD TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL MEDICAL CENTRE, IDO. EKITI
2. THE CHIEF MEDICAL DIRECTOR, FEDERAL MEDICAL CENTRE, IDO- EKITI
3. THE FEDERAL MINISTER OF HEALTH
4. THE MINISTERIAL INVESTIGATION COMMITTEE OF THE FEDERAL MINISTRY OF HEALTH – Appellant(s)
AND
SHUAIB ADEWOLE ALABI – Respondent(s)
UWANI M. ABBA-AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High court, Akure, Ondo state presided over by Hon. Justice Lambo J. Delivered on the 13th day of December, 2007. The suit was subsequently transferred to the Ado-Ekiti judicial Division of the Federal High Court when the same was created.
The Respondent as the Plaintiff at the lower court commenced this suit against the Appellants as Defendants claiming jointly and severally against them as per paragraph 21 of his Amended Statement of claim as follows:-
a) A declaration that the termination of the Plaintiff (sic) appointment under Defendants by the Defendants and contained in a letter of termination reference number FMC/ID/Ek/P.706/181 of 8th November, 2005 is wrongful; illegal, unconstitutional null and void and of no effect whatsoever.
b) A mandatory order on the Defendant to reinstate the Plaintiff with full entitlements from the date of termination of the appointment till judgment on (sic) thereafter.
The facts leading to this appeal are briefly summarised as follows:-
The Plaintiff, henceforth to be simply referred to as the Respondent was a Nursing Superintendent Anaesthetist II attached to the Theatre Unit of the 1st Appellant until 8th November, 2005 when the Appellants terminated his appointment.
The Respondent testified that he was employed by the 1st Appellant under a delegated authority from the Federal Civil Service Commission as a Nursing Anaesthetist. That on the 25th March, 2005, one Dr. Owolabi wanted to perform an operation on a pregnant woman knowing full well that Dr. Owolabi was not a surgeon and did not belong to the surgery Department but Medicine. Plaintiff advised him to call a more superior officer, who could handle such a sensitive case. The Respondent further stated that on 4th April, 2005 he got an invitation to appear before the Disciplinary Committee of the 1st and 2nd Appellants consequent upon which he was dismissed from service. That following a petition, the dismissal was set aside and another Ministerial Committee was set up which sat on 23rd June, 2005 with two members one Doctor and one Admin Officer with no Nursing representative. The Respondent and one Isiaka Tajudeen Olatunbosun who were being investigated were called together and they were not asked questions and neither were they required to defend themselves. “‘
On 8th November, 2005, the Respondent got a letter terminating his appointment. The Respondent pleaded and led evidence that Public Service Rules which govern his appointment was not complied with before his appointment was terminated and that he was not given fair hearing.
The Appellant joined issues with the Respondent when they asserted in their pleading that Public Service Rules was followed in terminating his appointment.
The Appellants called three (3) witnesses. Dr. Raymond Owolabi (DW1) who was purportedly prevented from carrying out the surgery, B.O. Ogunrinde (DW2) agreed that the appointment of the Respondent is governed by public Service Rules and DW3 a member of the Ministerial panel agreed that the Respondent never had the opportunity of cross examining witnesses who testified against him. He agreed Public Service Rules governs the appointment of the Respondent and no nurse was on the panel. He stated that Civil Service Commission was not involved in the discipline of the Respondent and that his panel was a mere investigative panel and disciplinary panel.
The learned trial judge in a considered judgment delivered on the 13th day of December, 2007 gave judgment for the Respondent as follows:-
“On the whole, I am of the humble view that the Plaintiff has proved his case on the balance of probabilities and therefore entitled to relief
1. It is accordingly granted.
On relief number 2, learned counsel has argued very strenuously that the plaintiff’s appointment does not enjoy a statutory flavour. The Plaintiff counsel held a contrary position.
It is now settled that the Civil Service Rules which both parties agreed governed the plaintiff’s appointment have constitutional force.
Indeed an employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute. See Iderima v. R.S.C.S.C. (2005) 16 NWLR (Pt.951) 378 @ 382; and the case of NIIA V. Ayanfalu (2007) 2 NWLR (Pt. 1018) 246…
In the final analysis, I find for the plaintiff on both reliefs. They are granted as Prayed…”
The Appellants are dissatisfied with the said decision and appealed respectively to this court. The 1st and 2nd Appellants are represented by Mr. Kola Kolade, Esq, at the trial and has filed a lone ground of appeal vide a Notice of Appeal on the 7th January, 2008. The 3rd and 4th Appellants are represented by Mr. Paul Ogbu, Esq. they also appealed against the said decision vide a Notice of Appeal filed on the 22nd February 2008, upon five (5) grounds of appeal. For ease of reference the 1st and 2nd Appellants will be referred to as the 1st set of Appellants while the 3rd and 4th Appellant’s will be referred to as the 2nd set of Appellants.
The lone ground of appeal filed by the 1st set up Appellants is hereby reproduced.
Ground 1
The judgment is against the weight of evidence.
Mr. Kola Kolade, Esq for the 1st and 2nd Appellants filed five additional grounds of appeal on the 18th/7/2008 with the leave of the court granted in the 14th October, 2009, it was deemed properly filed on that date. The additional grounds of appeal without their particulars are hereby reproduced:-
Ground 2:
The learned trial judge erred in law when it held that the 1st Defendant/Appellant is a juristic person thereby occasioning a miscarriage of justice.
Ground 3:
The learned trial judge erred in law when he held that the (sic) once the letter of .appointment of the Plaintiff refers to the conditions of service applicable in cognate institutions within the Federal Public service, that the 1st Defendant’s in (sic) appointment governed by Federal Public Service rules thereby occasioning miscarriage of justice.
Ground 4:
The learned trial judge misdirected himself in law upon the facts when it declared that the termination of the Plaintiffs/appointment is unlawful and ordered his reinstatement when he was terminated for gross misconduct thereby occasioning miscarriage of justice.
Ground 5:
The learned trial judge erred in law when he held that the Plaintiff was not given fair hearing occasioning miscarriage of justice.
Ground 6:
The learned trial judge erred in law when it ordered the Defendants to reinstate the plaintiff and pay all his salaries and allowances, thereby occasioning a miscarriage of justice.
In compliance with Rules and practice of this court, parties filed and exchanged briefs of argument. In the 1st set of Appellant’s brief of argument settled by Kola Kolade, Esq., learned counsel distilled four (4) issues for the determination of the appeal, to wit:-
1) Whether the trial judge was justified in holding that the Plaintiff/Respondent’s appointment is one with statutory flavour.
2) Whether the trial judge was justified in ordering reinstatement of the Plaintiff/Respondent.
3) Whether the procedure adopted in terminating the appointment of the Plaintiff/Respondent violate the rules of natural justice.
4) Whether from the issues arising, the trial (sic) was justified in ordering payment of all salaries and allowances to the Plaintiff/Respondent.
In the Respondent’s brief of argument in respect of the 1st and 2nd Appellants’ brief, Mr. Olabanjo Ayenakin, Esq, formulated two issues for the determination of the appeal, to wit.
1) Whether bearing in mind the state of evidence and pleading in the suit herein, the trial court was not right in holding that plaintiff’s appointment enjoyed statutory flavour which entitled Plaintiff to reinstatement and payments of all entitlements.
2) Whether the procedure adopted by the Defendants in terminating plaintiff’s appointment did not violate the principles of fair hearing.
At the hearing of the appeal on the 8th February, 2011, both counsel adopted their respective briefs of argument. The Appellant’s brief of argument dated and filed on the 1st January, 2011 was deemed properly filed on the same date. He adopted and relied on the said brief of argument as his argument in the appeal and urged the court to allow the appeal. In the Respondent’s brief of argument in response to the 1st and 2nd Appellants’ brief of argument, Mr. Ayenakin Esq, adopted and relied on the Respondent’s brief of argument filed on the 19th November, 2010 and urged the court to dismiss the appeal.
Mr. Ayenakin, Esq, urged the court to strike out 1st and 2nd Appellants additional grounds of appeal as no issue was formulated there from and that ground 3 does not emanate from the judgment of the lower court and grounds five (5) and six (6) are incompetent since the particulars are narrative and vague and offends Order 6 of the Rules of this court, 2007. He urged the court to strike out those grounds for being incompetent.
I have carefully considered the issues formulated for the determination of the appeal by the respective counsel and I am of the view that the two issues formulated by the Respondent could be subsumed into the four (4) issues formulated by the Appellants. Issues 1 and 2 could be taken along with Respondents’ 1st issue while issues 3 and 4 will be taking with Respondent’s issue 2 for determination. I will therefore adopt the two issue formulated by the Respondent in the determination of the appeal. However, before I delve into the determination of the issues, I will consider the preliminary issue that rear its head in the submission of the learned counsel for the Respondent in attacking the competence of some of the Appellants grounds of appeal.
Mr. Ayenakin, Esq, for the Respondent attacked the Appellant’s ground 3 of the Additional Grounds of Appeal as being grossly bad, defective and incompetent in law. He submitted that for a ground of appeal to be competent and good in law, such ground of appeal must emanate from the judgment appealed against. He submitted that Ground 3 of the Additional Grounds of Appeal does not emanate from the judgment of the trial court in that throughout the length and breadth of the judgment, there was no place where the trial court held that once the letter of appointment of the Plaintiff refers to the conditions of Service applicable in cognate institutions within the Federal Public service, that the Respondent’s appointment is governed by the Public service Rules. That since the ground of appeal did not emanate from the judgment of the trial court, the court was urged to strike out the same.
There is no response from the Appellants, counsel on this issue.
However order 10 Rule 1 of the Rules of this court provides that a Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
In the instant appear no such notice was filed by the Respondent and the Respondent cannot be allowed to raise such issue now.
The Respondent did not also raise the issue at the hearing of the appeal. He cannot by incorporating such objection into his brief of argument be deemed to be taken as argued. It is deemed abandoned and the objection to ground 3 of the additional grounds of appeal is hereby discountenance.
Issue 1.
Whether bearing in mind the state of evidence and pleadings in, the trial court was not right in holding the employment enjoyed statutory flavour which entitled the plaintiff to reinstatement and payments of all entitlements.
In arguing this issue by his issues 1 and 2 learned counsel for the Appellants Kola Kolade, Esq., submitted that the Respondent’s employment is not one with statutory flavour and therefore the Respondent owed a duty to prove the conditions of service of his employment and the breach thereof to entire him to judgment. He submitted that before an employment will be held to be one with statutory flavour, the employer must be a body set up by statute and the establishing statute must make express provisions regulating the employment of the Supreme Court in the case of Chief Tamunoemi Idoniboye Obu v, N.N.P.C. (2005) 3 NWLR (PT.8) 276 @ 287.
Learned counsel submitted that the 1st Appellant who employed the Respondent is not a creation of any law in Nigeria as it was merely set up to deliver health care services to the populace. He also submitted that even if it is a parastatal under the Federal Ministry of Health, it hires and fires its own staff and does not in any way have recourse to the Federal Commission and neither does the Federal Ministry of Health interfer in the issue of employment and discipline of its staff and that this fact is corroborated by the Respondent to the extent that his appointment was by the 1st Appellant and more so the Respondent was not confirmed by the 1st Appellant. It is also submitted that it is not correct that once a company, corporation, or government agency is set up by statute, then all the employees appointment ipso facto becomes one with statutory flavour. He submitted that two vital ingredients must co exist before a contract of employment may be said to import statutory flavour. He cited and relied on the case of Chief Tamunoemi Idoniboye Obu v. N.N.P.C. (supra; and Babatunde v. Oshogbo Steel Rolling Co. Ltd. (2005) 2 NLLR (pt.5) 294 @ 302. He submitted that the Respondent has a duty and burden to proof his terms of contract and conditions of service which he failed to do.
Learned counsel also submitted that the learned trial judge was wrong when he relied on the evidence of the Respondent that he was employed by the 1st Appellant under delegated power from Federal Civil Service Commission when no evidence of such delegated authority was produced more so when the Appellant deny any such delegated authority.
It is submitted that in an action for wrongful termination of appointment the plaintiff must place before the court the terms of the contract of employment and in what manner the said terms were breached. He placed reliance on the authority of Katto v. Central Bank of Nigeria (2005)2 NLLR (pt.4) 1 @ 6 and submitted that the Respondent failed to prove that his employment was governed by the Civil Service Rules. It is his view that the content of the letter of appointment cannot be interpreted to import what it does not contain or represent. That the content of the letter cannot be interpreted to be delegated authority without more. It is also his view that the 1st Appellant is not bound by any such Public Service rules governing cognate institutions and that at best the rules are adopted a guide in deserving times.
It is further submitted that the 1st Appellant has the latitude to adopt in cognate institutions within the public service, that the Respondent has the burden to prove how such rules is building on the 1st Appellant. Learned counsel made reference to the case of Amodu v. Amode (1990) 5 NWLR) Pt. 150) 356 @ 373 and submitted that the Respondent has failed to establish the terms of his contract of service and it is not the duty of the employer to prove the conditions of service citing the case of Katto v. C.B.N. (supra) Idoniboye Obu v. N.N.P. (supra); Babatunde v. Oshogbo Steel Rolling Co. Ltd. (2005) 2 NLLR (Pt.5) 294 @ 302 and submitted that the Respondent has failed to prove that he was employed subject to the Civil Service Rules, and cannot be protected by the rules. It is also submitted that the Respondent who has subjected himself to the directives and control of the Board of Directors of the 1st Appellant since he was employed in 2004 and his termination in November 2005 by the approval of the same Board of Directors of the 1st Appellant can now turn down to deny the Board and claim that public Service Rules govern his employment without proving facts in support of same. He further submitted that in the absence of proof of any delegated authority to the 1st Appellant by the Respondent regarding terms and conditions of his employment, it is submitted that the Respondent cannot unilaterally confer upon the 1st Appellant any status not conferred upon it by law.
Arguing his second issue for determination, it is submitted that the learned trial judge should not have ordered reinstatement of the Respondent. Learned counsel submitted that the Respondent’s appointment is not one with statutory flavour and since he who hires can fire, the 1st Appellant has the power to terminate the Respondent’s employment with or without any reason. He cited and relied on the case of NITEL V. AKWA (2006) 1 FWLR (Pt.285) 61@ 65 and submitted that an employer is entitled to suspend, retire, terminate and or dismiss his employee’s appointment for good or bad reason or even for no reason at all. He thus submitted that the refusal of the Respondent to carry out instructions of a doctor amounted to gross misconduct which resulted in the death of a mother and her child.
Learned counsel cited and relied on the case of Okomu Oil Palm Ltd. v. Iserhierhein (2001) 6 NWLR (Pt.710) 660 @ 665 that stated the procedure for appointment into the Federal Civil Service and submitted that the Respondent has failed to prove and establish any delegated authority or how the Federal Civil Service Rules govern his employment. That merely stating that he was employed under delegated power is not sufficient. Learned counsel urged that the appeal be allowed and the judgment of the lower court be set aside.
Responding, Mr. Ayenakin Esq, for the Respondent submitted that the trial court was right in holding that Respondent’s appointment has statutory flavour. He submitted that by paragraph 3 of the Amended Reply to statement of Defence of the 1st and 2nd Appellants, the Respondent pleaded uncontrovertibly that the termination of his appointment did not follow the provisions of the public service Rules and led evidence to this effect. He also submitted that Dw2 and Dw3 who are principal officers of the Appellants agreed under cross examination that the Public Service Rules govern the appointment of the Respondent. He referred to pages 106 and 108 of the record of appeal. Learned counsel further submitted that the 1st and 2nd Appellants in paragraph 13 of their statement of Defence pleaded that they can lay the Respondent off as they have done under the civil service Rules, thereby admitting that the Public services Rules governs the Respondent appointment. He thus submitted that facts admitted need no further proof and relied on the following cases; F.I.P.D.C. Nig Ltd. v. E.A.S. Ltd. (2006) 6 NWLR (Pt.975) 2 at 5; Lufthansa Ailines v. Odiese (2006) 7 NWLR (Pt.975) 49.
Learned counsel also submitted that the Public Service Rules has been held in plethora of cases to have constitutional force and any employment under it has statutory flavour. Learned counsel thus appointment state that Public Service the query given by the Appellants states that the Respondent has offended the provisions of the Public Service, Rules. He paused to ask the question why the Respondent was disciplined under the Public Service Rules if the Rules did not apply to him. It is his view that this is not an issue of juristic personality and that the case of Chief Tamunoemi Idoniboye Obu v. N.N.P.C (2005) 3 NLLR (Pt.8) 276 cited by the learned counsel is not relevant here as it borders on corporation and not on Government ministries and parastatals.
Learned counsel submitted that all the Respondent needs to do is to plead the Public Service Rules and show how it was breached which he did. He referred to the evidence of DW2 and DW3 elicited under cross examination which shows that the Appellants flouted the Public Service Rules in terminating the Respondent’s appointment. He referred particularly to the evidence of DW2 and DW3 under cross-examination when they testified that Public Service Rules govern the appointment of the Respondent, (pages 106 and 108 of the record): that the principal witness, Dr. Owolabi testified in the absence of the Respondent (page 107) and that DW3 agreed that there was no nurse in the panel that investigated the Respondent. That the Federal Civil Service Commission was not informed of the incident and that the panel was merely investigative and not disciplinary. Learned counsel therefore submitted that from the evidence of the Defence witnesses, it goes to show that paragraphs 04306 of the Public Services Rules relating to discipline of staff have not been complied with.
Learned counsel then referred to paragraphs 04102 and 04103 which delegated powers of the Commission to permanent Secretaries and Heads of Extra-Ministerial Departments in respect of Officers on salary GL.01 GL.13 with the exception of the power of dismissal which has been delegated only from GL.01 to GL.06. Learned counsel therefore submitted Exhibit D1, the Respondent’s letter of appointment, shows that the Respondent was appointed on HATISS, GL.08, which means he is a senior officer in the public Service and that his appointment can be terminated by the Federal Civil Service Commission and that no nurse was in the Ministerial Committee which violates Rule 04306(v) of the Public Service Rules. Learned counsel therefore submitted that the Respondent’s appointment was terminated in flagrant violation of the Public Service Rules, the implication of which is that the termination was a nullity. He cited and relied on the following cases; Iderima v. RSCSC (2005) 15 NWLR (Pt.91) 378 @ 384; Governor Kwara State v. Ojibara (2007) ALLFWLR (Pt.348) 864 @ 869. The court was urged to hold that the termination of the Respondent’s appointment is null and void and the necessary order to make is that of reinstatement and payment of all emoluments due to the Respondent. He also cited and relied on the cases of Saliman v. Kwarapoly (2006) 5 NWLR (pt. 974)477 @ 482; Governor, Kwara State v. Ojibara (supra): and Iderima v. R.S.C.S.C. (supra). He further submitted that the dictum of Uwaifo, JSC (as he then was) in Okomu Oil Palm Ltd. v. Iserhiehein (2001) 6 NMLR (pt.710) 660 is not related to this case as the Respondent in that case neither pleaded the Public Service Rules which the Respondent herein does. The court was urged to resolve the issue in favour of the Respondent.
I have given due consideration to the submissions of learned counsel on this issue which in the main is whether the Respondent’s appointment is one with statutory flavour and if his reinstatement as ordered by the trial court was proper in the circumstances. The question here is what is an employment with statutory flavour?
Generally, where the provisions of a statute govern the conditions of employment of an employee, the courts regard the employee as having secured a special legal status other than the ordinary master and servant relationship with his employer. In that case, the employer is bound to comply with these conditions when it comes to termination of appointment of the employee, otherwise the act of termination would be declared wrongful, null and void. However, where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour. This is so notwithstanding the fact that the employer is a creation of statute or is a statutory corporation.
The fact that an organisation or institution is a statutory body does not mean that its employees are protected by statute. See Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt.291) 47; Idoniboye-Obu v. N.N.P.C. (2005) 3 NLLR (Pt.8) 276.
Therefore, in a claim for wrongful termination of appointment, the onus is always on the employee to first, place before the court the terms of contract of employment and secondly, to prove in what manner the terms were breached by the employer. The contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. The principle is that it is not for the employer who is a Defendant to the action brought by the employee to prove any of these. See Amodu v. Amode (1990) 5 NWLR (Pt.150) 356.
What is the Respondent contract of employment? In his evidence in chief, the Respondent tendered in evidence before the court his letter of appointment admitted as Exhibit Dl. The letter Ref. No: FMC/ID/EK/51, dated 26th October, 2004, is hereby reproduced.
26th Oct., 2004
“Mr. Alabi Shaib Adewole,
20, Station Road,
Ede,
Osun State
OFFER OF TEMPORARY APPOINTMENT
With reference to your application for appointment dated 21st October, 2004, I am pleased to convey the approval of the Medical Director to offer you a temporary appointment as a NURSING SUPERINTENDENT (ANAESTHETIST) at a commencing salary of N174, 443.00 per annum i.e. HATISS 7 STEP 1 with effect from the date you assumed duty.
2. Your conditions of service will generally be in accordance with those applicable in cognate institutions within the Federal public service, as may be adopted or varied from time to time.
3. This offer of appointment is subject to your being passed Medical examination to be conducted by the centre before assumption of duty.
4. You are requested to confirm in writing your acceptance of this offer not rater than fourteen (14)-days from the date of the receipt of this letter.
5. Please accept the center’s congratulations on your appointment.
(Sgd)
B. O. OGUNRINDE
FOR: MEDICAL DIRECTOR”
The Respondent’s appointment was subsequently terminated vide a letter Ref. No: FMC/ID /EK/P706/18, dated the 8th November, 2005, Exhibit D5, is hereby reproduce.
“FMC/ID/EK/P706/18
November 8 2005
Mr. Alabi S. Adewole,
Nursing Superintendent (Anesthetic) (sic)
Federal Medical Centre,
Ido-Ekiti.
u.f.s.
Head of Nursing Services
TERMINATION OF APPOINTMEMT
I am directed to inform you that the Honourable Minister of Health has approved the recommendation of the Dismissal of two (2) Nursing Officers by the centre.This recommendation stipulates trial your appointment be terminated forthwith.
Consequently, your appointment with the centre is hereby terminated with immediate effect.
You are therefore requested to hand over all properties of the centre in your possession to your Head of Department for necessary clearance and for the payment of your one month basic salary in lieu of notice.
(Sgd)
B. O. OGUNRINDE
For: Medical Director”
It is crystal clear the Respondent’s letter of appointment stipulated that the Respondent’s conditions of service shall be in accordance with those applicable in cognate institutions. Also in querying the Respondent, the Appellants with the regard to the misconduct, stated that, “this is a gross misconduct in accordance with the Public Service Rule No.04406 and punishable by summary dismissal.” It is therefore clear that the Appellants intended public service Rules to govern the contractual agreement between the Parties.
The Respondent also pleaded by paragraph 3 of his reply to the 1st and 2nd Appellant’s statement of Defence that the Public Service Rules was not followed before his appointment was terminated’ The Respondent in his evidence in chief before the trial court testified that Public service Rules governs his contract of employment. This fact is also corroborated by the evidence of DW2 and DW3 who are principal Officers of the Appellants who also testified that the public service Rules govern the appointment of the Respondent.
The contention of the Appellants is that 1st Appellant who employed the Respondent is not a creation of any law in Nigeria as it was merely set up, to deliver health care services to the populace, even though it is a parastatal under the Federal Ministry of Health that hires and fires its own staff and does not in any way have recourse to the Federal Ministry of Health.
In the instant case, the Respondent pleaded and led evidence that Federal Civil Rules governs his contract of employment. This fact was also corroborated by DWZ and DW3 under cross examination when they stated that the civil service Rules governs the contract of service of the Respondents. If the Appellant did not want the Public service Rules to govern their relationship, then why would the Appellants query the Respondent under the public Service Rules? I am therefore of the humble view that the Respondent has established before the court that the Federal service Rules govern. The relationship between the Appellants and the Respondent.
Apart from establishing the fact that his contract of employment was governed by public service Rules, the Respondent has proved the manner in which the said terms were breached by the Appellants. The Respondent has led evidence to establish the following facts in his evidence. The Respondents was offered temporary appointment as a nursing Superintendent (Anaesthetist) at a commencing salary of N174, 443:00 per annum i.e. HATISS 7 step 1 by the 1st Appellant under the delegated authority of Federal Service commission. The Respondent later reads inter alia as follows:-
“Your condition of Service will generally be in accordance with those applicable in cognate institutions within the Federal Public Service”
In his evidence in chief the Respondent testified that his appointment is governed by the public service Rules. DW2 stated under cross-examination, that the 1st Appellant is a parastatal of the Federal Government of Nigeria and that the Respondent’s appointment is governed by the Public Service Rules. DW3 also under cross examination agreed that the Public Service Rules governed the Respondent’s appointment. In the circumstances, what does the Public Service Rules provide in bringing to an end the Respondent’s appointment? The Respondent has relied on the following Rules: Rules 04102, 04103, 02101 (a) and (b) 04303 and 04306. What then are the provisions of these Rules?
Rule 02101 provides:-
Appointments to Public Office of the Federal Civil Service are made on the authority of the Federal Civil Service Commission either by a letter written by the discretion of the Federal Civil Service Commission or by formal agreement between the Officer and the Federal Government or its appointed agents.
The Rules further provide that subject to Rules 02205 to 02207, Permanent Secretaries/Head or Extra Ministerial Departments are authorised to appoint eligible candidates to posts in respect of which the powers of appointment have been delegated to them.
Rule 04102 provide that the power to dismiss and to exercise disciplinary control over officers in the Federal Civil Service is vested in the Federal Civil Service Commission and by Rule 04103, it is provided that the Federal Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of Extra Ministerial Department in respect of Officers on Salary GL.01 to 13 with the exception of the power of dismissal which has been delegated only from G1.01 to 06. Rule 04306 regulates the procedure of dismissal. By this Rule, the officer shall be notified in writing of the grounds on which it is proposed to discipline him. In serious cases which are likely to result in dismissal, the officer should be given access to any such documents used against him where it becomes necessary to set a board of enquiry, the panel shall consist of not less than three persons one of whom shall be the chairman.
Where witnesses are called, the officer shall be entitled to put questions to the witness.
In the instant case, the Internal Disciplinary Committee set up by the Appellants which are to look into the complaint leading to the dismissal of the Respondent is not one anticipated by the Civil Service Rules and in any case its recommendation for the dismissal of the Respondent was set aside by the 3rd Appellant and in its place a Ministerial Panel was set up which did not afford any opportunity to the Respondent of meeting his accusers.
The provisions of the Public Service Rules copiously referred to above are sine qua non for compliance before a valid termination of the Respondent’s appointment.
It is trite that employment with statutory backing must be terminated in the way and manner prescribed by that statute. Any other manner of termination of the employment which is inconsistent with the relevant statute is null and void and of no effect. In the instant case, the Appellants did not comply with the provision of the Civil Service Rules stated above leading to the termination of the Respondent’s appointment. The Respondent was not given a fair hearing.
The witnesses who testified before the Ministerial Panel are not known to him. He was not afforded the opportunity of challenging their evidence before the Panel. See Iderima v. R.S.C.S.C. (2005) 16 NWLR (Pt.951) 378; Shitta-Bay v. F.P.S.C. (1981) 1 SC; Olaniyan v. University of Lagos (1985) ALL NLR 363; FCSC V. LAOYE (1989) 2 NWLR (Pt.106) 652; U.B.N. v. Ogboh (1995) 2 NWLR (Pt.380) 647. In the instant case therefore, the Appellants have failed to properly avail themselves of complying with the procedure laid in the Public Service Rules to terminate the Respondents’ appointment.
The courts have always insisted on fair hearing because it is the, safeguard against injustice. In the relationship between employer employee, there must be an allegation of a particular misconduct or wrong doing which is disputed, and it is for the purpose of ascertaining the truth or otherwise of the alleged misconduct that the courts insist on fair hearing.
Learned counsel for the Appellant contended that the 1st Appellant had no delegated authority of appointment. With respect, I did not agree with Mr. Kolade, Esq., for the Appellants. By the evidence of the Respondent as corroborated by the Appellant’s testimonies, the 1st Appellant is an agency of the Federal Government of Nigeria under the Supervision of the Federal Ministry of Health, the 3rd Appellant. That being the status of the 1st Appellant, therefore this 1st Appellant is an extra Ministerial Department of the Federal Government and by that status it is conferred by law with the delegated power of appointment of officers of its centre. The 1st Appellant has therefore, by necessary implication adopted the Public Service Rules as the condition of Service governing the appointment of their staff as applicable in cognate institutions within the Federal Public Service of the Federation.
A public servant therefore, can only be validly removed from service if the procedure prescribed by law was followed and once the dismissal or termination of appointment of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still is a civil servant. Therefore the learned trial judge was right when he ordered reinstatement of the Respondent. See lderima vs. R.S.C.S.C. (supra), UBN Ltd v. Ogboh (1995) 2 NWLR (Pt.380) 647; Aiyetan v. Nifor (1987) 3 NWLR (Pt.59) 48; Garba v. FCSC (1988) 1 NWLR (Pt.71) 449; Sapara v. U.C.H.M.B. (1988) 4 NWLR (Pt. 86) 58.
Based on the foregoing therefore, I resolved this issue against the Appellants and in favour of the Respondent.
Issue 2.
Whether the procedure adopted by the Appellants did not violate the principles of fair hearing.
Mr. Kola Kolade Esq., for the Appellants in arguing the issue submitted that the procedure adopted by the 1st Appellant did not in any way violate the rule of natural justice. He cited and relied on the case of Atadi v. U.B.N. Plc. (2006) FWLR (Pt. 298) 400 @ 404 and submitted that in the instant case, the Respondent in his evidence in chief stated that he was given a query and he also received a letter to appear before the Disciplinary Committee which he did and was dismissed on 20th April, 2005.
That the Respondent stated that he also appeared before a law panel from Abuja and his appointment was later terminated on 8th November, 2005 by the 1st Appellant. It is the view of learned counsel that once the Respondent was given a query, answered same and appeared before two different disciplinary committees which found him guilty of misconduct, he cannot complain of not been given fair hearing.
Learned counsel submitted further that fair hearing need not involve setting up of panels but it is sufficient if an employee as in the instant case is given an opportunity to state his own side of the case before disciplinary action is taken against him. He cited and relied on the case of Afribank Nig. Plc v. Nwaze (1998) 6 NWLR (Pt.553) 283 @ 284. It is his view that the Appellants fully satisfied the requirement laid down by the Supreme Court in the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 @ 309.
Learned counsel further submitted that the Respondent’s appointment had not been confirmed at the time it was terminated and that therefore the Respondent does not enjoy the Permanence of employment which a confirm employee enjoys. It is submitted that the essence of putting an employee on probation is to ascertain that his conduct are consistent with those of is employers and conduct which the Appellants found in this case to be inconsistence. The case of NITEL Plc v. Akwa (2006) FWLR (Pt.298 61 @ 64. Wherein it was held that the, appointment of a person who is on probation can be lawfully terminated within the probation period without following any procedure once the employer is satisfied that there is a good reason for the termination.
Learned counsel further submitted that the Respondent is not entitled to the salaries and allowances as ordered by the trial court. He submitted that once the main issue of the Respondent’s appointment having been rightly terminated succeeds all other ancillary reliefs must fail. Mr. Kola Kolade Esq, further submitted that assuming the Respondents appointment was wrongfully terminated his remedy lies not in reinstatement or full entitlements from the date of termination but only in what he could have earned in the period of notice required to be given. He relied on the case of NITEL Plc v. Akwa (supra). He urged the court to resolve this issue in favour of the Appellants.
Responding learned counsel for the Respondent Olabanjo Ayenakin, Esq., adopts his argument on the 1st issue for determination and submitted further that the procedure adopted by the Appellants grossly violates the principle of fair hearing. It is submitted that the evidence of DW2 and DW3 settled the whole matter in that they have by themselves showed the executive recklessness exhibited by the Appellants during the discipline period.
Learned counsel submitted that DW1 who was the principal witness testified without the Respondent being allowed to be there and neither was he allowed to cross- examine him nor examine the documents tendered by him. It is submitted that there can be no more classical case of lack of fair hearing than this. He submitted that Federal Civil Service Commission was not informed or carried along and neither was the report sent to it as required by the Rules. It is his view that the whole procedure adopted by the Appellants was a charade and a sham.
On the issue of the Respondent’s appointment not being confirmed, it is submitted by learned counsel that this issue cannot be imported into this issue as the Appellant never formulated any ground of appeal thereon and even if they did, that no issue Was formulated on such. It is submitted that the issue here is that of fair hearing and has nothing to do with whether the Respondent’s appointment has been confirmed or not. It is argued that even if the Respondent has not been confirmed, the Appellants cannot lay him off. It is also submitted that by the Public Service Rules, it is only the Federal Civil Service Commission who can lay the Respondent off, citing paragraph 04103 of the Public Service Rules as unconfirmed staff must necessarily be disciplined in accordance with the Public Service Rules and that the Appellant’s breached the Public Service Rules. It is also the view of learned counsel that the case of NITEL Plc v. Akwa (supra), NITEL was the appropriate party in that case and the contract in issue therein was that of mere master and servant. The court was urged to resolve the issue in favour of the Respondent.
The main contention under this issue is whether the Appellants accorded. The Respondent fair hearing before the termination of his appointment. This issue is considered at length while considering the issue whether due process was followed in the termination of the Respondent’s appointment with the 1st Appellant. I adopt the findings of the court on this issue.
The fact that the Respondent was given a query is not in dispute.
The fact that he answered the query is also not in dispute. The first panel that the Respondent appeared was the Internal Investigative Panel set up by the 1st Appellant on the complaint of DW1 Dr. Owolabi on the incident the 25th March, 2005. The panel sat and eventually dismissal of the Respondent from service. Suffice it to say that, that recommendation was set aside by the Hon, Minister of Health and recalling the Respondent. Then a Ministerial Investigation panel was set up by the Hon. Minister of Health to look into the complaint of the dismissed Respondent. It is before this Committee that the Respondent is crying out loud that he was not given fair hearing. It is submitted for the Respondent that the witnesses who testified before the Ministerial panel were not known to the Respondent and he was not afforded opportunity of challenging their evidence before the panel. DW1 who was the principal witness testified without the Respondent being allowed to be there and neither was the Respondent allowed to cross examine DW1 nor the documents tendered by him. The Respondent also testified that when the panel from Abuja came, he appeared before the panel together with his colleague. He stated, we were called in together at the same time. No question was asked, from us as all they could tell us was that we are trouble makers but we refuted that. He stated, they told us that they were in a hurry to go back to Abuja as it was on midday. A letter of termination was given to him on the 8th November, 2005. The Respondent further testified that at the time witnesses were invited to testify, he was not there. All the documents used at the panel were not shown to him. Now, in view of the testimony of the Respondent, can the Respondent be said to be given fair hearing before his appointment was terminated? I think not. The importance of fair hearing cannot be scuttled away within the administration of justice. The courts insistence on the right of fair hearing is surely not a matter of mere formality nor is it merely for the purpose of meeting procedural requirements. The courts have always insisted on fair hearing because it is the surest safeguard against injustice. In the matter of employee employer relationship, there must be an allegation of misconduct or wrong doing which is disputed and it is for the purpose of ascertaining the truth or otherwise of the alleged misconduct that the courts insist on fair hearing.
In the instant case, the Investigative Committee from Abuja did not give the Respondent a fair hearing before they terminated his appointment on the 8th November, 2005. This, I find as a fact. The employment of the Respondent must be terminated in the way and manner prescribed by the Public Service Rules.
Argument has also beep canvassed by the Appellants that the Respondent who is on probation can have his appointment determined prematurely without more. Learned counsel for the Respondent argued that this issue has been imported into this issue by the Appellants as no issue was formulated by the Appellants thereof. He submitted that the issue of fair hearing has nothing to do with whether Respondent’s appointment has been confirmed or not.
I agree with the learned counsel for the Respondent. No issue was formulated by the Appellants on the Respondent’s appointment been confirmed or not. No leave of the court was sought to raise it. It cannot therefore be raised now. However, it has been found by this court that the Respondent’s appointment is governed by statute, the Public Service Rules.
The Appellants therefore in terminating the Respondents’ appointment must comply with the Public Service Rules. The Appellants have failed to take advantage of these Rules. Consequently I resolve this issue in resolved in favour of the Respondent.
Having resolved all the issues in favour of the Respondent, the appeal of the 1st and 2nd Appellants therefore fails as it is without merit. It is hereby dismissed. The judgment of the lower court delivered on the 13th day of December, 2007 is hereby affirmed. The Appellant is entitled to cost which is assessed at N50, 000.00 against the Appellant.
I will now proceed to consider the case of the 3rd and 4th Appellants.
They filed their Notice of Appeal on the 22nd February, 2008 upon five (5) grounds of appeal. The grounds of appeal without their particulars are hereby reproduced:-
Ground 1
The court erred in law in law when it ignored the issue of non-juristic personality of the 1st and 4th Defendant (sic) raised before the lower court thereby occasioning a miscarriage of justice.
Ground 2.
The trial court erred in law when it held that the Plaintiff/Respondent who was on temporary appointment with the Defendant and who miscomputed (sic) himself in the service of the Defendants thereby leading to the loss of lives of a patient and her baby cannot be relieved of his appointment without recourse to the Federal civil Service Commission’s thereby occasioning a miscarriage of justice.
Ground 3.
The court erred in law and acted without jurisdiction when it ignored the case improper constitution of the case and Proceeded to assume jurisdiction to adjudicate on the matter of judgment and thereby occasioned a miscarriage of justice.
Ground 4.
The trial court erred in law when it ordered the reinstatement of the plaintiff, whose employment was terminated on the ground of gross misconduct and thereby occasioned a miscarriage of justice,
Ground 5.
The court erred in law when it held that once an employee (sic) salary is paid by an agent or parastatal of Federal Government, Civil service Rules regularised the employment.
The Appellants filed additional grounds of appeal on the l8th June, 2009 and was deemed properly filed by order of court on the 14th October, 2009. The additional grounds of appeal without their particulars are also hereby reproduced:-
Ground 7.
The trial court erred in law when it held that once an organisation is an agent of a parastatal of the Federal Government, the Federal Civil Service Rules automatically apply to its employees and by so holding occasioned a miscarriage of justice.
Ground 8.
The trial court erred in law when it held that there was a delegation of authority to the Defendants/Appellants from the Federal Civil Service Commission to employ Plaintiff/Respondent thereby occasioning a miscarriage of justice.
Ground 9.
The trial court erred in law when it held that the Applicants (sic) have power to hire but without corresponding power to discipline the Respondent thereby occasioning a miscarriage of justice.
Ground 10.
The trial court erred in law when it held that Appellant cannot terminate the contract of employment of the Respondent when he misconducted (sic) himself since his employment enjoyed a statutory flavour thereby occasioning a miscarriage of justice.
Parties filed and exchanged briefs of argument. In the Appellants’ brief of argument settled by Paul Ogbu, Esq filed on the 29th May, 2010 was deemed properly filed on the 1st November, 2010. The following five (5) issues were distilled for the determination of the appeal, namely:-
1) Whether the trial judge was right in ignoring the issue of the non-juristic personality of the 1st and 4th Defendants (now 1st and 4th) Appellants but rather proceeded to assume jurisdiction over the matter.
2) Whether the order of the trial court reinstating the Respondent was justifiable in view of the circumstances of the case and the evidence before the court.
3) Whether it is every employment in a Federal Government Agency that is clothed with statutory flavour.
4) Whether it is possible in raw for an employer of labour to have the power to hire without a corresponding power to fire.
5) Whether the Appellant was under any duty to follow any formal
6) Procedure in the termination of the Respondents appointment in view of his position as a probation employee.
In the Respondents brief of argument settled by Olabanjo Ayenakin, Esq., filed on the 29th November, 2010, learned counsel adopted the issues formulated by the learned counsel for the Appellants’ save the 5th issue for determination. In the circumstances therefore, I will adopt the issues formulated by learned counsel for the Appellants in the determination of this appeal.
Issue 1.
Whether the trial judge was right in ignoring the issue of the non-juristic personality of the 1st and 4th Defendants (now 1st and 4th) Appellant but proceeded to assume jurisdiction over the matter.
In arguing the issue, Ogbu, Esq., submitted that the constitution of parties to a case, competency of the suit and the jurisdiction of the court are intertwined issues which a court must completely resolve before proceeding with the matter. It is his submission that there is non-compliance with the due process of law when the procedural requirements have not been complied with, or the preconditions for the exercise of jurisdiction have not been complied with as it is fatal to the competence of the trial court to entertain the suit, as that would amount to an exercise in futility. He cited and relied on the case of Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 @ 422 and submitted that the trial judge fell into jurisdiction without dealing with non-juristic personality of the 1s and 4th Appellants at the trial even though that issue was raised at the trial.
Learned counsel submitted that the law is firmly settled that where compliance with stipulated precondition for setting a legal motion, any suit in contravention of the precondition is error of law when he assumed incompetent and the court is without jurisdiction to entertain it, citing the cases of; Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; Western Steel Works Ltd. v. Iron and Steel Worker Union of Nigeria (1986) 3 NWLR (Pt. 36) 617; Gambari v. Gambari (1990) 5 NWLR (Pt.152) 572; and Nigeria Ports Plc v. Oseni (2000) 8 NWLR (Pt.669) 410 @ 417-418. The court was urged to resolve the issue in favour of the Appellants.
In his response, learned counsel for the Respondent, Olabanjo Ayenakin, Esq, submitted that the issue formulated therein as well as grounds 3 and 4 upon which the issue is predicated is incompetent, defective and bad in law, He submitted that the position of the law is clear in that any ground of appeal as an issue for determination must emanate from the decision appealed against. He submitted that a careful look at the judgment of the lower court conspicuously shows that these grounds and the issue do not emanate from the judgment as the lower court did not in any way ignore the issue of juristic personality raised by the Appellants, It is submitted that the learned trial judge gave due attention to the issue of juristic personality raised by the Appellants. He submitted that the learned trial judge did not only pronounce on it but cited relevant case law on the issue as being incompetent having not emanated from the decision appealed against. He cited and relied on the cases of Azazi v. Adhekegba (2009) ALL FWLR (P.484) 1545 @ 1566; Manhattan Inv. Ltd., v. Co-op Development Bank Plc. (2009) ALL FWLR (Pt.483) 1381 @ 1388; Saraki v. Ktoye (1992) NWLR (Pt.264) 186 @ 184; and Atoyebi v. Government of Oyo State (1994) 5 NWLR (Pt.344) 290. Learned counsel urged the court to strike out grounds 3 and 4 of the Appellant’s ground of appeal.
Learned counsel further submitted that the Appellants herein cannot competently raise the issue of non-juristic personality of the 1st and 4th Appellant as it never pleaded it. Learned counsel referred to paragraph 10 of the Amended statement of Defence and submitted that what was pleaded was that the 3rd and 4th, Appellants are not juristic persons. He submitted that the issue of juristic personality of a Plaintiff or Defendant must necessarily be pleaded before it can be raised. It is his view that the Appellants having not pleaded same at the lower court, have no competence to raise it now by way of defence. The following cases were relied upon; Administrator/Executor of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff (2003) NWLR (Pt.800) 133; Irepodun-Ifelodun L.G. V. Balemo (2008) ALL FWLR (Pt.420) 688 @ 708.
Learned counsel further submitted that the totality of the act in this suit emanated from the 3rd Appellant who is a juristic personality and the suit could be sustained and that 1st Appellant is a creation of statute. This fact he submitted is also admitted by the Appellants in paragraph 1.01 of their brief of argument that the 1st Appellant was set up by a Federal Government fiat. He further submitted that where a Federal Government sets up a body or an organisation in such a way that it’s activities can affect the rights of members of the public, such body will be held to be juristic. He cited and relied on the cases of Thomas v. Local Government Service Board (1965) NMLR 310; and Carlen v. University of Jos (1994) 1 SCNJ 72. He submitted that the ground of appeal is based is also defective as it does not quote excerpts from the judgment appealed against. The court was urged to resolve this issue in favour of the Appellant.
A review of the submission of both counsels on this issue shows a challenge to the competence of the Appellants grounds 3 and 4 of the grounds of appeal upon which this issue is formulated. Even at the risk of repetition grounds 3 and 4 are hereby reproduced.
Ground 3.
The court erred in law and acted without jurisdiction when it ignored the improper constitution of the case and proceeded to assume jurisdiction to adjudicate, on the matter to judgment and thereby occasioned a miscarriage of justice
Ground 4.
The trial court erred in law when it ordered the reinstatement of the plaintiff whose employment was terminated on the ground of gross misconduct and thereby occasioned a miscarriage of justice.
The issue that is said to be distilled from the said grounds of appeal is the said issue 1, the first issue for determination.
Issue 1 reads:-
Whether the trail judge was right in ignoring the issue of the non-juristic personality of the 1st and 4th Defendants (now 1st and 4th) Appellants but rather proceeded to assume jurisdiction over the matter.
Mr. Ayenakin for the Respondent contended that the said grounds and the issue distilled there from are incompetent and bad in law as the grounds of appeal did not emanate from the judgment of the trial court.
A careful perusal of the judgment of the trial court would seem to show that the learned trial judge did consider the issue of the juristic personality of the 1st and 4th Appellants. See page 125 to 126 of the record of appeal. Ground 3 would have been the ideal ground upon which this issue should have been formulated. Ground 4 has no bearing on the issue of juristic personality of the 1st and 4th Appellants. Ground 4 complains of reinstatement of the Respondent as ordered by the learned trial judge.
I therefore did not completely agree with the learned counsel for the Respondent, Ayenakin, Esq, that grounds 3 did not emanate from the judgment of the lower court. The lower court did not in any way ignore the issue of juristic personality raised by the Appellants. The learned trial judge considered fully the juristic personality of the 1st and 4th Appellants and came to the conclusion that the Appellants are approbating and reprobating and that it is now settled that if a body is created with power to inflict injury, employ and discipline its members, it must be deemed to possess the status and be suable in law.
The competence of a Plaintiff to sue or a Defendant to be sued is a preliminary issue in any action. It must be pleaded by the party challenging the competence of the other party raised in limine by an application on notice to the other party and decided by the court before taking of evidence See Administrator/Executor of the Estate of General Sani Abach (Deceased) v. Eke-Spiff (2003) NWLR (Pt.800) 133. In the instant case, the Appellants after pleading the non-juristic personality of the 3rd and 4th Appellants did not raise the issue in limine by way of an application or a motion on notice to the other party for determination by the court before taking of evidence commenced. The Appellants therefore are deemed to have waived or slept on their right and could not, having fought the case to conclusion, be heard to challenge the competence of the 1st and 4th Appellants. See Irepodun v. Ifelodun L.G. v. Balemo (2008) ALL FWLR (Pt.420) 682 @ 708. Non joinder or misjoinder of a necessary party is only a procedural irregularity which does not affect the jurisdiction of the court. This issue is therefore resolved against the Appellant.
Issue 2.
Whether the order of the trial court reinstating the Respondent was justifiable in view of the circumstances of the case and the evidence before the court.
In arguing this issue, learned counsel for the Appellants, Mr. Paul Ogbu, Esq, submitted that the learned trial had no justification in ordering the reinstatement of the Respondent. It is his view that since the Respondents, appointment was not one with statutory flavour; his appointment could be terminated by the 1st Appellant with or without reason more so when his termination was based on gross misconduct. He cited and relied on the case of NITEL Plc v. Akwa (2006) 1 FWLR (Pt.285) 61 @ 65. He then, submitted that the termination of an employees appointment can only be declared null and void and the employee reinstated where an employee enjoys a special status or office by virtue of statutory regulations, citing the cases of Shitta Bey v. FCSC (1981) 1 SC 40; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25 @ 41. Mr. Ogbu, Esq urged the court to resolve this issue in favour of the Appellants.
Responding, learned counsel for the Respondent Ayenakin, Esq, referred to the grounds 2 and 5 of the grounds of appeal upon which this issue is predicated and submitted that the grounds are incompetent.
It is submitted that a careful look at grounds 2 and 5 shows that they are grounds alleging errors of law but that the particulars highlighted in these two grounds grossly deviate from the grounds and they are vague an nebu lous. That the so called particulars of error are merely narrative and they particularize nothing and urged the court to strike them out.
Assuming this, objection is not sustained, learned counsel further submitted that the trial judge was right and justified in reinstating the Respondent back to his employment, He submitted that the parties agreed on the fact that the Federal public Rules govern the appointment of the Respondent and DW1 at page 91 of the record of appeal stated under cross examination that he agreed that the Federal Public Rules governed the appointment of the Respondent. He also submitted that in ascertaining what governs the conditions of service of a plaintiff, the court should make recourse to the content of the letter of employment of the staff in issue here in the instant case, the condition states that the condition of service of the Respondent shall be in accordance with those of staff in cognate institutions within the public Service. He relied on the case of N.I.I.A. Ayanfolu (2007) 2 NWLR (Pt.247) 251 and submitted that the case of NITEL Plc v. Akwa (2006) ALL FWLR (Pt.285) cited by the learned Appellant’s counsel is irrelevant as the contract therein was based on common law and has no statutory flavour. He also cited and relied on the case Iderima v. R.S.C.S.C (2005) 15 NWLR (Pt.951) 378 @ 384 wherein the court held that Public Service Rules has constitutional force and takes the contract therein above those of master and servant relationship. He referred to the evidence of DW2 and DW3 and submitted that the procedure adopted by the Appellants in disciplining the Respondent violated Public Service Rules and submitted that where the Rules were not complied with in terminating an employee’s appointment, the proper order the court has to make is that of reinstatement and that the trial court was right to have so ordered. He cited and relied on the following cases; Shitta-Bey v. F.C.S.C. (1981) 15 @ 26; Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt.9) 559; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162. The court was urged to resolve the issue in favour of the Respondent.
I have considered Grounds 2 and 5 of the grounds of appeal which are still reproduce even at the risk of repetition as follows:-
Ground 2.
The trial court erred in law when it held that the Plaintiff/Respondent who was on temporary appointment with the Defendant and who misconducted himself in the Service of the Defendants thereby leading to the loss of lives of a patient and her baby cannot be relieved of his appointment without recourse to the Federal Civil Service Commission thereby occasioning a miscarriage of justice.
Ground 5.
The court erred in law when it held that once an employee (sic) salary is paid by an agent or parastatal of Federal Government, Civil service Rules regularised the employment.
I have carefully considered these grounds of appeal along with their particulars and I do not agree with the learned counsel for the Respondent that these grounds are incompetent. While it is true that every ground of appeal alleging an error of law must proceed to give particulars of such error which must succinctly set out the case the party is expected to meet in court and which must not be different from the ground of appeal, the Appellants grounds 2 and 5 as reproduced above shows they are grounds alleging errors of law and the particulars highlighted in these grounds did not deviate from the grounds as argued by the Appellant’s counsel. The particulars and the ground are not unrelated. They are competent grounds of appeal with particulars of error succinctly set out. This issue is hereby discountenanced.
On the main issue for determination under this issue, that is, whether the trial court was right in reinstating the Respondent, this issue is identical with the 1st and 2nd Appellant’s issue No.2 discussed earlier in this judgment. I therefore adopt and rely on the same reasoning and conclusion as this issue. I therefore resolve same in favour of the Respondent.
Issue 3.
Whether it is every employment in a Federal Government Agency that is clothed with statutory flavour.
In arguing this issue, learned counsel for the Appellants Paul Ogbu, Esq., submitted that an employment is clothed with statutory flavour only when it is protected by statute which also makes provisions for the procedure for employment and termination of such employment. He cited and relied on the following cases; Central Bank of Nigeria v. Agwilo (2007) 14 NWLR (1054) 386 @ 393; Olaniyan v. Unilag (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. F.C.S.C. (1981) 1 SC 40; N.N.P.C. V. Idoniboye-Obu (1996) NWLR (Pt.511) 153 @ 157; on principle that where party in the suit is a Federal Government parastatal and the Respondent a Public servant within the con of section 277(d) of the 1999 Constitution, the contract of employment of the employee has statutory flavour. Learned counsel further relied on the cases of Fakuade v. O.A.U.T.H. (1993) NWLR (PT.291)57 to submit that the fact that an employer is a statutory body does not mean that the conditions of service of its employee must be of a special character ruling out the relationship of mere master and servant relationship. He further cited and relied on the cases of; F.C.S.C.V. Laoye (1989) 2 NWLR (Pt.1060 652; Sapara v. U.C.H. Management Board (1988) 4 NWLR (Pt.56) 581; and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599,
Learned counsel therefore submitted that in view of the evidence adduced at the trial, the Respondent’s employment with the 1st Appellant is not one clothed with statutory flavour. That the position of the Respondent as a Nursing Officer is not provided by any statute prescribing the procedure for appointment into and removal from that position. He therefore submitted that the learned trial judge was in error when he held that once a parastatal or agency of the Federal Government, it is a statutory body and the Civil Service Rules automatically applies more so when the 1st Appellant is not even a creation of statute.
Learned counsel submitted further that since the employment of the Respondent is not one clothed with statutory flavour, the employment was governed by the terms under which the Respondent agreed to be 1st Appellant’s servant and not by the Federal Civil Service Rules as alleged by the Respondent. He placed reliance on the case of Okamu Oil Palm Co. Ltd. v. Iserhienrhein (2001) 6 NWLR (Pt.710)661. He submitted that in the instant case, there is no shred of evidence that the Respondent’s appointment with the 1st Appellant was done either directly the Federal Civil Service Commission or by the direction of the commission or under the authority of the commission. It is the view of learned counsel that this being so, the appointment of the Respondent was not regulated by the Civil Service Rules and neither can the Respondent have any expectation whatsoever that his removal can only be pursuant to the Civil Service Rules. The court was urged to resolve the issue in favour of the Appellant.
Responding, Mr. Ayenakin, Esq, referred to grounds 6, 7 and B upon which this issue is based as well as the issue as in competent as the grounds did not emanate from the decision of the lower court- He submitted that there is nowhere in the judgment of the lower court where it held that “once an organisation is an agent of or a parastatal of the Federal Government, the Federal Civil Service Rules automatically apply to its employee”. That same has not been canvassed before the trial court. Learned counsel referred to the record of appeal where the trial court considered what governed the condition of service of employee to hold that the letters of employment and pleadings must be resorted to. It is his view that the trial court did not state that once an employee’s salary is paid by the government, Civil Service Rules applies. He submitted that the issue herein as couched is academic and the court does not embark on a voyage of academic discoveries. The court was urged to discountenance the grounds and the issue as being incompetent.
Coming back to the issue for determination, learned counsel for the Respondent submitted, that the Respondent pleaded uncontrovertibly that his appointment is governed by the Public Service Rules and DW2 confirmed under cross examination that Public Service Rules govern the appointment of the Respondent. He also stated that the Respondent’s letter of appointment states that his employment is governed by Public Service Rules, He further submitted that the query the Appellants gave the Respondent stated that his conduct offends public service Rules. It is thus submitted that having disciplined the Respondent under the Public Service Rules, the Appellants are estopped from denying the applicability of the Rules to the Respondent. He therefore submitted that Public Service Rules has constitutional force and that the case of Okamu Oil palm Ltd, v. Iserhienrhien is based on a master servant relationship in which the conditions of service are governed by agreement. The court was urged to resolve the issue in favour of the Respondent.
Again on this issue, Learned counsel for the Respondent dwelt on grounds 6, 8, and 9 of the grounds of appeal upon which this issue is founded and contended that the said grounds are incompetent as same did not emanate from the judgment of the trial court, I have given due consideration to the judgment of the trial judge and I do not find the grounds of appeal or the issue formulated to be academic as contented by the learned counsel for the Respondent. The fact that an issue is formulated in a question form does not make the entire ground or issue to be academic. A careful perusal of the judgment of the trial court would bring about the type of issue postulated by the learned counsel for the Respondent. Suffice it to say there is no ground 6 in the notice of appeal and the said ground cannot be said to be one of those from which the issue is formulated. It is therefore my view that the issue as formulated is not academic and I hold as such.
Now coming to the main issue for determination which is whether it is every employment in a Federal Government agency that is clothed with statutory flavour. The answer is simply No. The fact that the Respondent is a statutory body does not automatically mean that the condition of service of its employees must be of a special character ruling out the relationship of mere master and servant. It is only when that employment is protected by statute which makes provisions for the procedure for employment and termination of such employment that it can respectfully be said that the employment is clothed with statutory flavour. See Central Bank of Nigeria v. Agwilo (2007) 14 NWLR (Pt.1054) 386 @ 393; Olaniya v. University of Lagos (1985) 2 NWLR (Pt.9) 597; Shita-Bey v. FCSC (1981) 1 SC 40.
There are three categories of contract of employment namely:-
1. Those regarded as purely master and servant;
2. Those where the servant holds office at the pleasure of the employer; and
3. Those where the employment is regulated or governed by statute, otherwise known as having statutory flavour.
contract of master and servant may be subject to either statutory or common law rules or both. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all, but if he does so in a matter not warranted by the particular contract under review, he must pay damages of his breach. Therefore, an employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employer. Any other employment outside that category if governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos (supra) and Shitta-Bey v. F.C.S.C. (supra).
Where an organisation or parastatal of Government makes no provision for the procedure for employment and termination of such employment, then such employment cannot be said to be clothed with statutory flavour.
Infact, it is the Rules and regulations governing employment, disciplinary action, termination and dismissal of an employee from the service of the employer that make the employment to be said to be one with statutory flavour or clothed with statutory ,flavour not because the employer is Government agency or Parastatal.
Where an employee’s employment is one with statutory flavour, the employer may not be disciplined or his employment terminated and or dismissed except in accordance with the Rules and regulations governing such employment.
In the instant case, the conditions of service under which the Respondent was employed were whose of the Public Service Commission. The Respondent’s appointment stated the conditions of service to be generally in accordance with those applicable in cognate institutions within the Federal Public Service as may be adopted or varied from time to time.
This is as contained in Exhibit D1, the Respondents letter of appointment. Also, the letter of query Exhibit D2 made reference to Public Service Rule No.04466 in querying the Respondent for misconduct, a combination of which goes to show that, Federal Public Service Rules applies to the employment of the Respondent. In the instant case, there is no two way about it. The direction is clear.
Whereas in the instant case, an employee established that his appointment has statutory flavour and the court finds that his removal is ultra vires, such employee should be restored to his position. In other words, where the court holds that the termination of employment is ultra vires, null and void, it, automatically places the status of an employee to where he was as if nothing happened. In the instant case, therefore, I hold the view that the Respondent’s appointment with the 1st Appellant is governed by the Public Service Rules. This issue is also resolved in favour of the Respondent.
Issue 4.
Whether it is possible in law for an employer of labour to have the power to hire without a corresponding power to fire.
In arguing this issue, learned counsel for the 3rd and 4th Appellants. Mr. Paul Ogbu, Esq submitted that implicit in the power to hire is the power to fire citing in support the case of Isheno v. Juliu Berger Nigeria Plc (2008) 2-3 SC (Pt.11) 78 @ 107. He submitted that in the instant case, the view of the trial judge that the 1st Appellant was under delegated authority of the Federal Civil Service Commission to hire but not to fire does not conform with the legal position in labour law. He therefore submitted that since the 1st Appellant was under a delegated authority of the Federal Civil Service Commission to hire the Respondent, that delegation will naturally include the delegation to discipline the Respondent when he erred. He urged the court to hold that this appeal succeeds.
In his response, Mr. Olabanjo Ayenakin, Esq submitted that the ground of appeal upon which this issue is predicated is incompetent and the issue is purely academic. He submitted that the trial court never at any point in time held that an employer of labour has no corresponding power to fire.
He submitted that the provisions of the Public Service Rules only delegated powers to permanent Secretaries and Heads of Extra Ministerial Departments and the 2nd and 3rd Appellant have power to dismiss senior employees. He thus submitted that the power is purely of law.
In the instant case, having found that the conditions of Service governing the employment of the Respondent with the Appellants is one governed by statute which is only determinable by the conditions governing the said employment that due process as provided by law has to be followed before such term of contract can be terminated. It is not a common law relationship of Master and servant where the employer can terminate the contract with his servant at any time and for any reason or for no reason at all.
It is only under the common law that an employer can terminate the appointment of his employee and a court will not impose an employee on an unwilling employer, and hardly does a court order for specific performance of employment.
In the instant case, the Appellants are not employers of labour and are not therefore entitled to suspend, retire, terminate or dismiss the appointment of the Respondent for good or bad reason or even for no reason at all. The Respondent in the instant case, has his employment under the statute of the Public Service Rules and cannot therefore, be dismissed at will and where his termination is found by the court to be unlawful, the only order the court can make is for reinstatement. This issue is also resolved in favour of the Respondent.
Issue 5.
Whether the Appellants were under any duty to follow any formal procedure in the termination of the Respondent’s appointment in view of his position as probation employee.
Learned counsel for the Appellant Paul Ogbu, Esq submitted that no formal procedure was required in terminating the appointment of the Respondent considering his position as probational employee. He placed reliance on the case of Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388 @ 414 and further submitted that in the termination of appointment of an officer on probation, no procedure is provided for and none need be followed once the Board or principal is satisfied that there is good cause for the determination. Learned counsel further submitted that the Respondent being a probationary employee and not yet confirmed staff of the 1st Appellant, the 1st Appellant was under obligation to adopt any formal procedure in termination of his appointment. He submitted that the Respondent could even be summarily dismissed. The court was urged to uphold this issue and to allow the appeal.
In his response, learned counsel for the Respondent Mr. Olabanjo Ayenakin, Esq, maintained that the Appellants have failed or neglected to match their issues with ground 2 of appeal in that ground 2 of the grounds of appeal is the closest to the issue herein. He submitted that the issue is not in tandem with ground 2.
I have considered ground 2 of the grounds of appeal, under which this issue is formulated, and I am of the firm view that the issue formulated relates or drive its force from the said ground 2 and it is therefore in tandem with the issue for determination.
In arguing the issue, learned counsel for the Respondent submitted that by paragraphs 04102 and 04103, the Appellants have no competence or the power at all to dismiss the Respondent from his employment. Therefore, whether the Respondent is a probationary staff or not, the Appellants have no power to do what they have done. That the Appellants have acted beyond their powers and the termination of the Respondent’s appointment is a nullity.
Learned counsel further submitted that the position that a probational staff can be laid off at the whims and caprices of his employer is peculiar to ordinary, master and servant relationship and not employment with statutory flavour. He submitted that paragraph 04204 of the Public service Rules states that a probational staff cannot be laid off at will but he must be given fair hearing.
The main contention under this issue is whether the employment of an employee on probation can be terminated with or without notice to the other party i.e. without any procedure attached. The contention of the Appellant’s counsel is that no formal procedure was required in terminating the appointment of probationary employee and none need to fallowed, and once a party was not wrongfully terminated, there is no need for reinstatement. Would the same be contended for an employee with statutory flavour? Will the management, parastatal or any corporation proceed to terminate an employee’s appointment with statutory flavour on probation without recourse to the Public service Rules? By Rules 04102, the commission has delegated its power to dismiss and exercise disciplinary control on any of the members of the committee and the commission has delegated full disciplinary powers to the permanent secretaries and Heads External Ministerial appointments Department in respect of the officers on salary G1.01 – G1.06. Learned counsel is of the view that a probational staff can be laid off at the whims of his employer in peculiar, ordinary master and servant relationship and not employment with statutory flavour.
With respect to the learned counsel for the Appellant, the case Baba v. NCAT (1991) 5 NWLR (Pt.192) 5388 @ 414 is not on all fours with the present appeal. The employment in Baba’s case (supra) is not one governed by statute. It is based on written contract. It says in part, “The training centre reserves the right to terminate your appointment by giving “you one month salary in lieu of notice. You are also free to terminate your appointment with the Training Centre at any time by giving one month notice or by paying one month salary in lieu of notice”.
In the instant case, the Respondent’s appointment is under the statute; it is not a common law contract of master and servant therefore the Respondent’s appointment even though or probation cannot be terminated without fair hearing. See Rule 04204 of the Public Service Rules. The Appellants are expected to comply with the procedure for termination as provided by the Public Rules. Failure to so comply renders the termination of the Respondent null and void and of no effect and the Respondent is entitle to reinstatement. This issue is also resolve against the Appellants.
Having resolved all the issues formulated for the determination of this appeal in favour of the Respondent, this appeal is therefore without merit and same shall be and is hereby dismissed. The judgment of the lower court delivered on the 13th December, 2007 is hereby affirmed. There shall be cost of N50, 000:00 in favour of the Respondent against the Appellants.
CHIDI NWAOMA UWA J.C.A.: I was privileged to read in advance the judgment delivered by my learned brother Uwani Musa Abba Aji, J.C.A.
His Lordship has painstakingly reviewed the issues raised and has resolved same in great detail; I therefore have nothing meaningful to add. I agree with the decision affirming the judgment of the trial court delivered on 13th day of December, 2007, except the prayer in paragraph (g) of the claim before the trial court, covered by issue 6 before this court . I abide by the order made as to costs in the leading judgment.
HARUNA M.TSAMMANI, J.C.A.: I had the privilege of reading the lead judgment delivered by my learned brother, Uwani .M. Abba Aji, J.C.A.
My brother painstakingly and admirably summed up all the issues that arose for determination in this appeal. Those issues were also extensively and carefully resolved. There is nothing else I can meaningfully add. I therefore also agree that this appeal is devoid of merit. It is hereby dismissed by me.
The judgment of the lower court delivered on the 13th day of December, 2007, the subject of this appeal, is accordingly affirmed by me. I abide by the orders as to cost.
Appearances
Kola Kolade with Paul Ogbu, Esq,For Appellant
AND
Olabanjo Ayenakin,For Respondent
