MICHAEL IMODU NATIONAL INSTITUTE FOR LABOUR STUDIES v. SHAIDU NDA’J MALIKI
(2011)LCN/4423(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of March, 2011
CA/IL/19/2010
RATIO
ORIGINATING SUMMONS PROCEDURE: CIRCUMSTANCES WHERE ORIGINATING SUMMONS PROCEDURE CAN BE USED
…the law is trite that originating summons procedure can be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute and when the sole or principal question in issue is or likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law, that is, in non-contentious matters as was decided in the case of Dipianlong vs. Dariye (2007) 4 SC (pt III) I18 at 167-168.PER TIJJANI ABDULLAHI, J.C.A.
AFFIDAVIT EVIDENCE: POSITION OF THE LAW WHERE AN AFFIDAVIT IS NOT CHALLENGED BY U COUNTER-AFFIDAVIT
… it is now settled beyond peradventure that where an affidavit is not challenged by u counter-affidavit, the facts deposed to in the affidavit remain unchallenged, uncontroverted and admitted. See the case of Alagbe vs. Abimbola (1978) 2 SC p. 39; A.G. Rivers State vs. Ude (2006) 607 SC 131 at 146; Onuo vs. JSC Delta State (2007) 7 SC (pt II) 81 and Federal Ministry of Health vs. Comet Shipping Agencies Ltd. (2009) 4 NMLR 578 at 587. PER TIJJANI ABDULLAHI, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: WHETHER IT IS THE DUTY OF AN APPELLATE COURT TO SUBSTITUTE ITS OWN VIEWS OF UNDISPUTED FACTS FOR THE VIEWS OF THE TRIAL COURT
In the case of Balogun vs. Agboola (1977) 10 SC (Reprint) 83 at 88 the Supreme Court held that it is not the business of an appellate Court to substitute its own views of undisputed facts for the views of the trial Court. In the instant case, the Appellant as can be gleaned from the Records, never placed any fact before the lower Court requiring that Court to weigh same on one side of the imaginary scale against those of the Respondent on the other side, as envisaged by the decision of the Supreme Court in Mogaji vs. Odofin (1978) 4 SC P. 65. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
MICHAEL IMODU NATIONAL INSTITUTE FOR LABOUR STUDIES Appellant(s)
AND
SHAIDU NDA’J MALIKI Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Ilorin Division, Coram; Bilkisu B. Aliyu J. delivered on the 2nd December, 2009 whereby the trial court made an order declaring that the termination of the employment of the Respondent by the Appellant through a letter of Notice of termination of probationary employment dated 24th November, 2008, Exhibit K was wrongful and ordered the reinstatement of the Respondent.
The Respondent was the plaintiff in the lower court whilst the Appellant was the defendant in that Court. The Respondent as plaintiff initiated an action against the Appellant as defendant by filing an originating summons whereby, he sought as follows:
“1. WHETHER upon a correct interpretation of the defendant’s Staff Regulations and Conditions of Service and Judgment of the Court of Appeal, Ilorin in Appeal No.CA/IL/22/2007 between the parties, the plaintiff can still be regarded as a probationary staff of the defendant as the defendant claims in her letters of 24th November, 2008 and 12th December, 2008?
2. WHETHER the plaintiff s appointment with the defendant having spanned a period of over 18 years can, be terminated by one month’s salary in lieu of notice as the defendant purported to do in this case vide her letter of 24th November, 2008?
3. WHETHER the purported terminated of the plaintiff’s appointment by the defendant is valid, having regard to her Staff Regulations and Conditions of Service as well as the relevant provisions of the Civil Service Rules?
WHEREUPON the plaintiff claims:
I. A DECLARATION that the plaintiff is no longer a probationary staff of the defendant but that he held a pensionable appointment at the date of his purported termination, having put in over 18 years of service with the defendant.
II. A DECLARATION that the purported termination of the plaintiff’s appointment by payment of one month’s salary in lieu of notice vide letter dated 24th December, 2008 is wrongful, ineffectual, null and void.
III. DECLARATION that the purported terminated of the plaintiff’s appointment by the defendant vide letter of 24th November, 2008 is ultra vires the defendant, unlawful, null and of no effect whatsoever.
IV. AN ORDER reinstating the plaintiff into the defendant’s employment and at the status he would have attained but for the unlawful termination of his appointment, and for payment of his salaries and other emoluments from the date of his purported termination until judgment be delivered herein.
DATED this 23rd day of February, 2009.
The originating summons is supported by an affidavit consisting of 18 paragraphs and a number of documents attached thereto as Exhibits, namely exhibits A – N. Reference will be made to these Exhibits as and when appropriate in the course of writing this ruling.
For this part, Respondent did not file a counter-affidavit to controvert the contests of the said supporting affidavit but he filed a notice of preliminary objection upon the following grounds:
(i) The prayers sought by the plaintiff herein are incompetent before this Honourable Court.
(ii) The plaintiff has a pending application before the court of Appeal, Ilorin seeking inter alia, an order of court reviewing the judgment of that court delivered on the 16th day of July, 2008.
(iii) The questions which the plaintiff has submitted to this Honourable Court for its determination have been determined by the Court of Appeal in its judgment dated 16th day of July, 2008.
(iv) The defendant’s notice of appeal to the Supreme Court is awaiting leave of the Court of Appeal.
(v) Plaintiff’s suit herein is an abuse of court process.
Respondent’s counsel also filed a ten paragraph affidavit in support of the preliminary objection.
The facts of the case briefly stated are that:
i. The Respondent by a letter dated 8th December, 1989 was appointed as Senior Admin officer on Grace Level 10 Step 1 by the Appellant (page 8 of the Record).
ii. By a letter of 13th October, 1992 the Respondent was suspended indefinitely from work without pay (page 9 of the Record)
iii. The respondent approached the Federal High Court, Ilorin which on 31st of May, 2005 dismissed his claims as being statue-barred.
iv. The Respondent’s appeal to this court was allowed on 16th July, 2008 whereat it was held “that his termination was unconstitutional, null and void because he was not given a fair hearing, he was always and still is in the employment of the Respondents”, and having held that he was dismissed without being given a fair hearing, he shall forthwith be reinstated” (page 10 and 67 – 72 of the Records).
v. The Respondent’s attempts to reap the fruits of that judgment were thwarted by the Appellant (See pages 11 – 19 of the Records).
vi. The Appellant grudgingly reinstated the Respondent on 21/11/2008 only to terminate him on 24th November, 2008 (p.21 of the Record)
vii. The Respondent was constrained to approach the Federal High Court, Ilorin again to challenge the termination, in Suit No.FHC/IL/CS/14/09 which is now on appeal before your Lordships.
viii. The Appellant did not file any counter-affidavit to challenge the factual bases of the suit but opted to rely on a preliminary objection which was dismissed.
ix. The Appellant is yet to comply with the orders contained in the said judgment, but has filed a motion for stay of execution before that court and also before this court.
x. A Notice of Consequence of Disobedience to Order of Court dated and filed the 8th December, 2009 was duly served on the Appellant, followed by a Notice to Show Cause Why Order of Attachment Should Not Be Made, dated and filed 4th March, 2010 (See pages 1 – 3 of the Additional Records).
xi. The committal proceeding could not be heard before the appeal was entered in this court.
xii. The Appellant engaged the Respondent in a series of correspondence in a pretended move to settle the appeal out of court, but continues to offer him only gratuity and pension while silent on this unpaid salaries and emoluments for the 19 years prior to the judgment now appeal against.
The preliminary objection raised by the appellant as defendant was dismissed by the learned trial judge after arguments were heard and the matter proceeded to hearing. In a reserved judgment delivered on the 2nd December, 2009, the learned trial judge found for the plaintiff and held inter-alia thus:
“The plaintiff’s case has merit and therefore succeeds.
Consequently it is hereby declared as follows:
1. The plaintiff having been in the employment of the defendant for over 18 years is no longer a probationary staff of the defendant.
2. By the combined effect of the defendant’s staff conditions of service and the court of appeal’s judgment delivered on 16th July, 2008 in Suit No.CA/IL/22/2007 between the plaintiff and the defendant, the plaintiff’s appointment being one with statutory flavour cannot be terminated by payment of one month’s salary in lieu of notice.
3. Therefore the termination of the plaintiff’s appointment by the defendant by payment of one month’s salary in lieu of notice through the letter dated 24th November, 2008 is hereby declared null and void.
4. Consequently, it is hereby ordered that the plaintiff be re-instated into the employment of the defendant and all his salaries and entitlements to date should be paid to him.
Dissatisfied with the decision of the learned trial Judge, the appellant approached this Court and filed two Notices of Appeal, dated 4th December, 2009 and 14th December, 2009 against the said judgment. The Notice of Appeal filed on 4th December, 2009 was withdrawn and struck out. Issues and argument in this appeal are based on the grounds in the Notice of Appeal dated 14th December, 2009.
Parties, in compliance with the rules of this Court, duly filed and exchanged their respective briefs. The Appellant’s Counsel adopted his two briefs of arguments, the main brief dated 1st July, 2010 and filed the same date and the reply-brief dated 17th day of January, 2011 and also filed the same date. Learned Counsel for the Respondent filed their Respondent’s brief, dated and filed on the 5th January, 2011. Learned Counsel drew our attention to their preliminary objection incorporated in the main brief and urged us to uphold same and dismiss the appeal as lacking in merit. In the event we are minded to hear the appeal, he also urged us to hold that it lacks merit and ought to be dismissed.
In a brief settled by Hakeern Kareem Esq. learned Counsel for the appellant distilled three issues for determination from the four grounds of appeal and they are as follows:
“(a) Whether the Respondent was not estopped from claiming that termination of his employment with the Appellant was null and void after having accepted payment of salary in lieu of notice of termination. (Issue one relates to ground one)
(b) Whether originating summons procedure is the proper procedure for instituting a claim for wrongful termination of employment as this claim. (Issue two relates to ground two)
(c) was the trial court right in its finding that the respondent employment is regulated by civil service rules.” (Issue three relates to grounds three and four).
Learned Counsel for the respondent, on the other hand, formulated four issues for determination thus:
“(i) whether the Respondent’s failure to return the Appellant’s cheque for N25,486.17 amounts to an acceptance of his purported termination by the Appellant.
This issue arises from Ground 1.
(ii) whether having regard to the Respondent’s letter of appointment and uncontroverted evidence on record, the trial court can be faulted in holding that the Respondent’s employment was governed by the Civil Service Rules?
This issue arises from Ground 2.
(iii) Whether the trial court lacked jurisdiction to entertain the Respondent’s suit on any ground?
This issue arises from Ground 3.
(vi) Whether on the preponderance of evidence the learned trial judge was wrong in awarding judgment to the Respondent?
This issue arises from Ground 4.
It is noteworthy to observe that the issues formulated by the parties are similar to one another. Issue No.1 formulated by the appellant is strikingly similar to issue No. 1 as formulated by learned Counsel for the Respondent. Issue No. 3 formulated by the Appellant is also similar to issue No 2, formulated by learned counsel for the Respondent.
Again, issue No 2, as distilled by the Appellant is similar to issue No.3 as formulated by the Respondent.
On the whole, the appeal under consideration can be disposed of by giving consideration to any set of issues formulated by either party. Let me say that it (appeal) can be determined based on the issues distilled by the Appellant because apart from the fact that the appeal is his, the (issues) are more apt and precise but let me quickly say that whether or not it (appeal) will be determined on merit will depend on the outcome of the preliminary objection filed by the Respondent to be determined anon.
PRELIMINARY OBJECTION
Learned Counsel for the Respondent began his argument on the 1st ground of objection by urging us to strike out Ground 3 of the grounds of appeal and dismiss the entire appeal for being incompetent. The said ground urged to be struck out is couched in the following terms.
“The trial Court erred in law in assuming jurisdiction over the case and in entertaining same when it lacked jurisdiction; thereby coming to a wrong conclusion.”
In support of this ground, reproduced supra, several particulars are provided and since they are not unwidely I set them down hereunder as follows:
PARTICULARS
“(a) There was evidence of pendency of an appeal against the judgment of the Court of Appeal, Ilorin the subject matter of the case culminating in this suit.
(b) The case constitutes an abuse of court process in view of the facts at the disposal of the trial court.
(c) There was evidence before the trial court that the court of Appeal Ilorin had itself declined to entertain the review of its decision, upon which the present suit was predicted.
(d) The suit was not brought by due process.
(e) The action was initiated by way of originating summons rather than writ of summons.
(f) Originating summons procedure is not appropriate in (sic) commence an action for wrongful termination of employment where facts are likely to be in dispute.
(g) There are many instance of disputed facts in this case and it ought to have been brought by writ of summons.”
Learned counsel for the Respondent, contended that by the judgment of the Court delivered on 16th May, 2008 in Appeal No. CA/22/2002 SHAIDU NDA MALK vs. Michael Imodu National Institute for Labour Studies, the appellant was ordered to re-instate the Respondents. Learned Counsel went on to contend that the Appellant had an unqualified duty to carry out the order of the Court but it however under various subterfuges manifested her disdain for the Order of the Court and refused to comply therewith. Learned Counsel referred us to pages 91, 94, and 99 of the records to buttress his submission on this point.
Learned Counsel, further contended that, the Appellant after grudgingly re-instated the Respondent, who resumed duty on 21st November, 2008, then purportedly terminated the appointment on the 24th November, 2008, thus frustrating the Court’s Order of re-instatement of the Respondent.
In the circumstance of the foregoing, learned Counsel argued that, the Appellant never intended to comply with the Order of the Court to re-instate the Respondent. Impliedly, learned Counsel went, as per the judgment of the 16th May, 2007, the Appellant had a duty to pay the Respondent’s accumulated salaries and emoluments, which she (the Appellant) emphatically denied and continues to withhold from the Respondent. In support of this argument learned Counsel relied on the cases of BCC plc vs. Ager and Anor (2010) 9 NWLR (Pt.1199) 292 at 309 and Central Bank Nigeria vs. Igwillo (2007) 4-5 SC 154 at 157.
It is the submission of the learned Counsel that the none payment of the respondent’s accumulated salaries and emoluments by the Appellant amounts to act of constructive disobedience of the Court’s order which is contempt of Court, disentitling the Appellant from approaching the Court for any purpose. In support of this submission, learned Counsel cited and relied on the cases of Akinpelu vs Adegbore (2005) (4-5) SC (Pt.11) 75 at 101 and Afolabi vs. Mudashiru (2010) 3 NWLR (pt.1181) 328, per Ogunbiyi JCA.
For his part, learned counsel for the Appellant submitted that the Appellant was not in contempt of the Order of this Court because they have fully complied with the Orders contained in the said judgment in case CA/IL/22/2007 to the letter. In support of this submission, learned Counsel referred to the enrolled Order of the Court a letter from the Appellant to the Respondent, pertaining to an application for accumulated Annual Leave (Exhibit J) and a letter of introduction from the Appellant to the Manager of United Bank for Africa, introducing the Respondent for the purpose of opening a Bank Account, (Exhibit J1) to buttress his submission on this point.
The question to be asked at this stage is, whether it can be said that in the circumstance of this case, the Appellant has fully complied with the enrolled Order of the Court to enable them to approach this Court as they did. To answer this question re-course had to be made to the enrolled Order of the Court, the appellant said not to have complied with. The said Order reads thus:
I. I. AGUBE
JUSTICE COURT OF APPEAL
IT IS HEREBY ORDERED:
1. That this Appeal has merit and same is accordingly allowed.
2. That the Judgment of the lower Court delivered on 31st day of May 2005 dismissing the claims of the appellant as being Statute Barred is hereby set aside.
3. That it has been held that his termination was unconstitutional, null and void because he was not given a fair hearing, he was always and still is in the employment of the Respondents.
4. That having held that he was dismissed without being given a fair hearing, he shall forthwith be reinstated.
5. That the Respondent shall pay to the Appellant the sum of N300,000.00 (Three Hundred Naira) only as nominal damages.
APPEAL ALLOWED.
(Sgd)
J. S. AJIBOYE ESQ.
DEPUTY CHIEF REGISTRAR
It is instructive to note that in compliance with the order reproduced supra, the Appellant whilst replying to the Respondents through his Counsel pertaining to his accumulated leave, stated inter-alia that:
“I am to draw your attention to the fact that that despite the court of Appeal’s Judgment, you have not made yourself available for proper documentation in the Institute. Rather you have been consistently demanding for frivolous claims through your counsel. Indeed your visit to the Institute on 3rd November, 2008 was specifically to request for payment of your unlawful monetary claims.
Regarding your monetary entitlement of N300,000,00 (being nominal damages as contained in the judgment), I am to advise you to liaise with the Accounts Department of the Institute for further necessary processing.”
Another documents, showing compliance with the Order of the Court, is Exhibit J1, addressed to the Manager, United Bank for Africa, Plc, Unity Road, Ilorin by the Appellant wherein they stated thus:
“RE-OPENING OF BANK ACCOUNT
This is to introduce the bearer Mr. Malik S. Nda. who is a staff of this Institute and is willing to operate a current Account with your bank for payment of his monthly salary.
We solicit for your kind co-operation in this regard.
Thanks
(Sgd)
S. D. IBRAHIM
Director (fin & Acct.)”
In yet another letter showing compliance with the Court Order, the Appellant wrote to the Respondent through his Counsel thus:
“PAYMENT OF N300,000.00 (THREE HUNDRED THOUSAND NAIRA ONLY)
I am directed to refer to the Court of Appeal judgment No.CA/IL/22/07 dated 4th July, 2008 regarding the above subject and to forward therewith the Unity Bank Cheque No.00000092 OF 20TH November, 2008 for the sum of N300,000.00 (Three Hundred Thousand Naira) only being nominal damages as awarded in the said judgment.
I am to further state that you are not entitled to any other monetary compensation beyond this amount.
(Sgd)
I. O. Ajagbe
For: Director General/CEO
CC:
M. B. Bello Esq.
Above for your inabramation please.”
I pause here to observe that the contents of the Exhibits reproduced supra are very clear and unambiguous. I hasten to say that based on their contents, the Appellant has fully complied with the judgment of the Court delivered on the 16th July, 2008. This objection contained in ground one of the objection is therefore overruled.
On the 2nd ground of the objection, learned Counsel for the Respondent posited that by this appeal, the Appellant is indirectly inciting the court to sit over its judgment of 16th May, 2007 and reverse same. Learned Counsel took the view that this is not only constitutionally impossible but this Court has a duty to protect its judgment. For this submission, learned Counsel relied on the case of ACB International Bank Plc vs. Otu (2005) 1 SC (Pt.11) 7 at 18 where the Supreme Court, per Tobi (JSC), the crudite Emeritus Justice of the Apex Court held thus:
“A judgment, and this includes a ruling, of a court of law is valid or so presumed until it is set aside on appeal. A court of law, trial or appellate, has the power or jurisdiction to protect its judgment by providing teeth to bite any act of interference to weaken it, legal strength of enforcement or enforceability in the judicial process”.
Learned Counsel insisted that in the circumstances of the present case, the Appellant’s appeal amounts to an abuse of court process. For this submission, learned Counsel placed reliance on the cases of UBA vs. Etiaba (2010) 10 NWLR (1202) 343 at 354 and the case of African Reinsurance
Corporation vs. JDD Construction Nig. Ltd. (2003) 2-3 SC at 63.
The facts of the case leading to the appeal under considering have been stated in the course of this ruling. At the risk of repeating oneself, let me say that, the appeal under consideration emanated from the judgment of the Federal High Court delivered by the learned trial judge on the 2nd of December, 2009 as per the Respondents suit in suit No FHC/IL/C2/4/2009 after the termination of the Respondent’s appointment by the Appellant for the 2nd time. I am of the considered view that the appeal against the decision of the learned trial judge will and cannot be an invitation for this Court to either interprete its decision of 16th May, 2007 or sit on appeal over the said decision. Similarly I cannot see how an appeal against the said judgment can be an abuse of Court’s process as canvassed by the learned Counsel for the Respondent. I am also of the further view that the cases relied on by the learned Counsel in support of this position are not apposite to the facts of the case under consideration. This objection is accordingly over-ruled.
On the competency of issue No. 3, looking at grounds 3 and 4 of the Notice of Appeal dated 14th December, 2009 one can clearly see that issue No. 3 is distilled from those grounds. It is therefore my considered view that the said issue is competent and I so hold.
It is instructive to note that in view of the argument canvassed by the learned Counsel for the Appellant under issue number two, Ground 3 which raises the issue of jurisdiction cannot be said to have been abandoned. This objection like the previous ones is also overruled.
On the whole, the preliminary objections raised by the Respondent, in the light of the foregoings are unmeritorious and same are overruled accordingly.
Now with the clearing of the coast by over ruling the preliminary objections raised by the Respondent, I will proceed to determine the appeal in contention on merit. I will start with issue No. 1 as distilled by the Appellant and issue No.1 as distilled by the Respondent which are whether the Respondent was not estopped from claiming that the termination of his employment with the Appellant was null and void after having accepted payment of salary in lieu of notice of termination and whether the Respondent’s failure to return the Appellant’s cheque for N25,468.17k amounts to an acceptance of his purported termination by the Appellant.
And, issue No.1 as formulated by the Respondent reads whether the Respondent’s failure to return the Appellant’s cheques for N25,486.17k amounts to an acceptance of his purported termination by the Appellant.
In arguing issue No. 1, learned Counsel for the Appellant contended that, it is on record that the Respondent was paid one month salary in lieu of notice of termination of his employment through a Zenith Bank cheque which he did not return. Learned Counsel took the view that the fact that the respondent claimed to have retained the cheque thus “as a result your cheque No. 00001024 is retained only as part payment of his emoluments while you are obliged to calculate and pay over to him in accordance with the judgment under reference as stated in Exhibit L, a letter written on his behalf by his Counsel is neither here nor there so contended the learned Counsel. Learned Counsel went on to contend that the reason given by the Respondent for retaining the cheque had no basis because there was nowhere in the judgment of this Court as per Exhibit C (enrolled order) of the Court which stipulated that the Respondent be paid any emolument other than the N300,000.00 nominal damages paid to him.
Learned Counsel insisted that the Appellant also made it clear to the respondent in Exhibit G its obligation under the judgment was payment of N300,000.00 and nothing more. The contents of- Exhibit G reads thus:
“I am directed to refer to your letter dated 27th October 2008 regarding the above subject and to inform you that by the enrolment order, your client is not entitled to anything beyond what is contained in that order. In this case, three hundred thousand (N300,000.00) only. Consequently your request for accumulated leave with pay with emolument up to date is not applicable in this regard. The institute’s legal adviser has been duly informed of the development accordingly. Many thanks”.
Learned Counsel is of the further view that there is no basis for the demand, and it cannot be used as an excuse for retaining the cheque for the payment of the salary in lieu of notice. Therefore the reason given for the retention of the cheque in Exhibit L is not tenable in law as this Court did not order payment of any sum other than N300,000.00k to the Respondent.
It is the submission of the learned counsel that the refusal of the Respondent to return the cheque and his subsequent act of retaining the cheque, amount to acceptance of the termination of his employment, by payment of salary in lieu of notice. In support of this submission, learned Counsel relied on the cases of Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) P. 599; Morohunfola vs. Kwara State College of Technology (1994) NWLR (Part 145) P. 506 at 528 and Ekeagwu vs. Nigerian Army (2006) 11 NWLR (Part 991) P.382 at 392.
Again, on this point, learned Counsel referred us to the Dictum of our erudite Emiratus Justice of the Apex Court, Karibi Whyte JSC, in Olaniyan vs. University of Lagos (supra) wherein he stated thus:
“A unilateral repudiation may however determine a contract of service where the ernployee accepts it expressly or by implication”. See page 683 of the Report.
Learned Counsel went on to contend that in the Olaniyan’s case, the Apex Court found that the re was no proper determination because the employee returned the cheque for the payment of six months salary in lieu of notice but the situation was different, the learned counsel went on, in Morohunfola v. Kwara State College of Technology (supra) where the employee did not return the three months salary in lieu of notice paid to him.
The Supreme Court affirmed that the employment was properly determined by the acceptance of the salary in lieu of notice, the learned Counsel further contended.
Learned Counsel argued that it is important to note that the facts of the case in hand are on all fours with Mohorhunlola’s case. The Respondent, learned Counsel went on, was paid one month salary in lieu of notice vide a cheque, he accepted it, did not return it and applied the proceeds of the cheque. Learned Counsel posits that it was after retaining the cheque and enjoying the proceeds of this cheque that he now went back to court to seek for reinstatement. This amount to approbation and reprobation. Such an act was condemned by this honourable Court in Ekeagwu v. Nigerian Army 2006 II NWLR Part 991 page 382 at 397 where it was held as follows:
“However the record of proceedings shows that on the compulsory retirement of the appellant in this present appeal the appellant was paid and he received from the respondents the appellant retirement benefit. The fact of the appellant puts a different colour to the claim of the appellants in the court below. Upon receipt of his retirement it ceases to lie with the appellant any right to challenge the retirement. He by that act has made his retirement mutual, no longer compulsory, he has consented to the retirement. See Morohunfola v. Kwara Technology 1990 4 NMLR Part 145 page 506 per Karibi Whyte JSC. It would have been different if the appellant had refused to accept the retiring benefits but once he has received, it and it is not in dispute that the appellant did receive his retiring benefits. He parts an end to any claim for wrongful retirement. It is a matter of receiving an unlawful issue by a subsequent action, it is one that does not permit an appraisal to approbate and reprobate. See Dr. O. Ajolore v. Kwara State College of Technology 1986 2 SC 374. It is clearly inequitable to accept payment from the respondent which is called retirement benefit and still maintain that the retirement is wrongs.”
It is the submission of the learned Counsel that, from the analysis of the above cases, it is clear that once an employee accepts payment in lieu of notice and did not return the money, he can no longer challenge the determination of his employment by his employer. His conduct of accepting the payment has put paid to all claims he has in respect of the termination of his employment.
We were urged to resolve these issues in favour of the Appellant.
For his part, learned Counsel for the Respondent took the view that the argument canvassed by the learned Counsel to the Appellant to the effect that by failing to return the cheque issued by the Appellant purportedly as one month’s salary in lieu of notice, the Respondent had accepted his termination by the Appellant and is estopped from contesting the termination is most erroneous, misplaced and unfounded. It is his further view that all the decided authorities cited in support are distinguishable and so inapplicable because:
(a) In those cases, there had been no court judgments in favor of the employees terminated. In the instant case, the Respondent had a subsisting judgment of this court in his favour, inter alia, ordering his reinstatement and by implication, payment of his accrued salaries and emoluments. BCC Plc vs. AGER & Anor, supra.
(b) The purport of the Respondent’s solicitors letter of 22nd December, 2008 (Exhibit L before the lower court) is that the payment was rejected. The purpose of the Respondent’s retention of the cheque was clearly spelt out and communicated to the Appellant, to wit, in part-settlement of his salaries and emoluments due under and by virtue of the judgment in CA/IL/22/2007. See page 23 lines 20 – 22 of the Record.
Learned Counsel urged us to resolve these issues in favour of the Respondent and against the Appellant.
RESOLUTION OF THE ISSUES.
In resolving these issues, the question that must be asked and answered from the onset is this, can it be said from the judgment of the Court delivered on the 16th day of July 2008, that the Respondent is not entitled to be paid any emoluments other than the N300,000.00 nominal damages? The answer to this question becomes crucial in view of the reasons for justification of the retention of the one month salary paid to the respondent by the Appellant as canvassed by the Respondent’s Counsel in Exhibit L, wherein they stated inter-alia thus:
“As a result your cheque No.00001024 is retained only as part payment of his emoluments which you are obliged to calculate and pay over to him in accordance with the judgment under reference.”
The significance of the answer to the question posed supra is also predicated on the position taken by the Appellants to the effect that, the respondent having received one month’s salary in lieu of notice cannot go back and seek for reinstatement. This learned Counsel for the Appellant insisted amounts to approbation and reprobation which is unallowable in our legal system.
It is instructive to note that in the said judgment, their Lordships held thus:
“That his termination was unconstitutional, null and void because he was not given a fair hearing, he was always and still is in the employment of the Respondents.”
See page 10 lines 30 – 33 of the Record.
It is noteworthy to observe that flowing from above, the Appellant is duty bound to pay the Respondent his accrued salaries and emoluments. I am of the considered view that the Court needs not pronounce payment as a consequential order – it ought to be inferred as a natural consequence of the order. See the case of Inakoju vs. Adeleke (2007) I SC (Pt. 1) P.1.
In the light of the foregoing, the question posed a while ago must be answered in the negative. I am of the firm view that the retention and cashment of the Appellant’s cheque by the Respondents was in part-payment of the salaries and enrolments due to him under the judgment of 16th July, 2008 in CA/IL/22/07 – SHAID NDA’J MALIK vs. Michael Imodu National Institute for Labour Studies, delivered by my learned brother, Denton West, JCA, I am also of the firm view that, the action of the respondent in retaining and cashing of the cheque under reference does not amount to an acceptance of his purported termination by the Appellant.
Again, the Appellant’s reference to the sum of N300,000.00 paid to the Respondent in line with the judgment of Hon. Justice Sotonye Denton-West as nominal damages and “inclusive of the costs the Appellant has incurred so far to get redress against the unjust treatment he has received in the hands of the Respondent” see page 66 lines 5-8 of the record.
It is inconceivable that the Appellant would unilaterally place an interpretation on the Court’s order to suit her purpose as argued in paragraphs 6.5 and 6.6 of her Brief. The case of TOTAL NIGERIA PLC v. Akinpelu is inapposite, for reasons canvassed above. The instant case is not on all fours with any of the cases cited by the Appellant, as Exhibit I- explicitly affirms the Respondent’s claim to being a pensionable staff of the Appellant who cannot be terminated by one month’s notice.
Let also say that the cases cited and relied by the Learned Counsel for the Appellant are not apposite to the case we have in hand; as Exhibit L, explicitly affirmed the Respondent’s claim to being a pensionable staff of the Appellant who cannot be terminated by one month’s notice.
In the light of the foregoing, these issues are resolved in favour of the Respondent and against the Appellant.
The next issues for determination are issue No. 2 distilled by the Appellant, which is whether originating summons procedure is the proper procedure for instituting a claim for wrongful termination of his employment and issue No 3 as formulated by the Respondent which is whether the trial Court lacked jurisdiction to entertain the Respondents suit on any ground.
Learned Counsel for the Appellant in arguing these issues started by re-iterating the plaint of both parties, wherein he said the cause of the action is alleged wrongful termination of employment and the main claim of the Respondent is reinstatement. He then submitted that the proper procedure for maintaining an action for wrongful termination of employment and for the relief of reinstatement is by filing a writ of summons, and not through originating summons. In support of this submission learned counsel relied on the cases of Sea Trucks (Nigeria) Ltd v. Anigboro (2001) 2 NWLR (part 696) p. 15a at pp 177, 179 and 180 and Ebguonu vs. Bornu Radio Television Corporation (1977) 12 NWLR (Part 531) p.29 at 40.
In the case of Ebguano vs. Bornu Radio Television Supra, the Apex Court at page 40 of the Report stated thus:
“In this appeal the claims are partly for wrongful dismissal or termination of employment and partly for breach of fundamental rights. But here as in Tukur’s case, the principal claim being for wrongful termination of appointment which or right to have been commenced by u writ of summons which was not then all the claims principal and subsidiary which flow directly are incompetent and ought to be struck out.”
In Sea Trucks (Nig) Ltd vs. Anigboro (supra) the erudite Ementus Justice of the Apex Court, Achike JSC (of blessed memory) in his concurring judgment held inter-alia that:
“In this case, as we have shown, the respondent’s principal claim which is for wrongful dismissal was initiated under the Fundamental Rights (Enforcement Procedure) Rules 1979. The proper procedure is undoubtedly by way of action by writ of summons and not under the rules. The proceedings under the Rules were misconceived and incompetent and therefore the respective proceedings in the trial court and the court below were a nullity.
Learned Counsel submitted that in the light of the decisions of the apex court in those cases cited supra, he urged to us to resolve the issues in favour of the Appellant.
Learned counsel for the Respondent, on the other hand, took the view that the Appellant’s complain that originating summons procedure is inappropriate but the writ of summons procedure is of no moment and cannot be sustained. This, even if correct, the learned Counsel went on, could not rob the court of jurisdiction. learned Counsel insisted that there is no feature of the case robbing the court of jurisdiction as canvassed by the learned Counsel for the Appellant.
It is the contention of the learned Counsel that the appropriateness or otherwise of the originating summons procedure canvassed by the Appellant did not emanate from any ground of appeal. Learned Counsel submitted that the appropriateness or otherwise of the originating summons procedure was raised by way of a preliminary objection by the Appellant before the lower Court and it was considered and dismissed. It is pertinent to observe, the learned Counsel went or, there is no appeal against that decision, and argument canvassed at this stage, learned Counsel further submitted, is an afterthought. We were urged to resolve the issues in favour of the Respondent.
RESOLUTION OF ISSUES
Now, the law is trite that originating summons procedure can be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute and when the sole or principal question in issue is or likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law, that is, in non-contentious matters as was decided in the case of Dipianlong vs. Dariye (2007) 4 SC (pt III) I18 at 167-168.
It is instructive to note that Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009 clearly permit the originating summons procedure employed by the lower Court, as all facts deposed to in support are borne out of documentary evidence requiring only the court’s interpretation.
Again, meticulous perusal of the affidavit evidence adduced before the lower Court and the documents attached as Exhibits thereto did not raise any dispute of fact. The Appellant did not file any counter-affidavit to contradict the facts averred by the Respondent and the documents attached in support of the originating summons.
That aside, this court needless to say is an appellate court and its jurisdiction can only be invoked by filing a notice of appeal by an aggrieved party. This to my mind is essentially the way to kick-start the jurisdiction of the court. It is instructive to note that the appropriateness or otherwise of the originating summons procedure was raised by way of preliminary objection by the Appellant before the lower Court and considered and dismissed. There is no appeal against that decision and argument now canvassed, in view of the appellate status of this court is of no moment. Same is an afterthought and cannot be sustained.
In view of all that have been said supra, these issues like the ones before them are resolved in favour of the Respondent and against the Appellant.
The next issues for determination are issue No 3 distilled by the Appellant and issue No.11 as formulated by the learned Counsel for the Respondents. The two issues as stated earlier on are similar to one another and they will be treated together in this judgment.
Issue No. 3 distilled by the Appellant is whether the trial court was right in its finding that the Respondent’s employment with the appellant is regulated by the Federal Civil Service Rules whilst is No 2 as formulated by the Respondent is whether having regard to the Respondent’s letter of appointment and uncontroverted evidence on record, the trial Court can be faulted in holding that the Respondent’s employment was governed by the Civil Service Rules?.
Learned Counsel for the Appellant began his consideration of these issues by referring to section 318 of the Constitution of the Federal Republic of Nigeria which defines who is a civil servant and submitted that the provision of the said Constitution was given judicial interpretation by this Court in the case of Oloruntobi Oju vs. Lawal (2003) 17 NWLR (pt 348) p. 67 at 8081, and where it was decided that a public servant, is not necessarily a civil servant, and that a civil servant is a public servant.
Learned Counsel went on to submit that in that case, it was held that members of staff of University of Ilorin are not civil servants but Public Servants, and that the Federal Civil Service Rules do not apply to public servants. learned Counsel insisted that going by the definition in section 318 of the Constitution, the Respondent is not a civil servant but a public servant being a member of staff of a statutory corporation established by an Act of National Assembly, that is NATIONAL INSTITUTE FOR LABORU STUDIES ACT CAP NO. 49 LAWS OF THE FEDERATION, 2004.
It is the contention of the learned Counsel that evidence was not produced at the lower Court to show that the Respondent is a public servant and that his condition of service is governed by public service Rules. Exhibit N which was relied heavily by the trial Court is not applicable to the Respondent’s case. From the content of Exhibit N, it applies only to civil servants and not public servants. For avoidance of doubt learned counsel further contended, that the contents of Exhibit 1 read thus:
“In this connection, no Chief Executive of a Ministry/Extra Ministerial Department has the power to single handedly terminate, retire or dismiss civil servants” (underlining for emphasis).
In the light of the provision of the said Exhibit reproduced supra, learned Counsel submitted that the findings of the trial Court contained at pages 83-85 of the records are not supported by evidence and are perverse. This is more so, learned Counsel further submitted when there is no evidence that the Respondent was employed by the Federal Civil Service Commission. On the contrary there is evidence in Exhibit A that the Respondent was employed by the Director of the Appellant. The letter of appointment was signed on behalf of the Director, learned Counsel further opined.
Learned Counsel urged us to set aside the findings of the trial Court for being perverse and resolve the issue in lavour of the Appellant.
Learned Counsel for the Respondent argued per contra and urged us to resolve the issue against the Appellant. It is the contention of the learned Counsel that contrary to the argument of, the Appellant on this issue, it is clear from the Respondent’s letter of appointment Exhibit A before the lower Court) that “The institute’s conditions of service are similar to those in the public service”. In support of this contention, learned Counsel referred us to page 8 lines 25-26 of the record.
Learned Counsel went on to contend that Exhibit B before the lower Court stated that the Appellants fate would be determined in line with Civil Service Rules No. 04201 and MILLS Regulations and condition of service.
Learned Counsel opined that, the appellant’s argument that the Respondent’s employment is not governed by the Civil Rules is therefore a fallacy and deliberate attempt to mislead the Court.
RESOLUTION OF THE ISSUES
In resolving these issues, my first port of call is the affidavit deposed to by the Respondent in support of the originating summons. It is instructive to note that the Respondent in section 16 of the said Affidavit averred as follows:
“16. that I also know as a fact that under all extant rules and regulations governing my appointment with the defendant including the Civil Service Rules, the power to terminate my appointment does not rest with the defendant’s Director-General Chief Executive Officer, but with the Federal Civil Service Commission. Attached hereto and marked Exhibit N is a circular of 30th September, 1996 from the Secretary to the Government of the Federation reiterating this fact”.
Clear and unambiguous the above averments are, which pointedly and affirmatively referred to the Civil Service Rules as governing the appointment of the Respondent, the Appellant did not file any counter-affidavit to controvert this or indeed any other averment in the said affidavit. Let me at this juncture pause and say that it is now settled beyond peradventure that where an affidavit is not challenged by u counter-affidavit, the facts deposed to in the affidavit remain unchallenged, uncontroverted and admitted. See the case of Alagbe vs. Abimbola (1978) 2 SC p. 39; A.G. Rivers State vs. Ude (2006) 607 SC 131 at 146; Onuo vs. JSC Delta State (2007) 7 SC (pt II) 81 and Federal Ministry of Health vs. Comet Shipping Agencies Ltd. (2009) 4 NMLR 578 at 587.
It is also to be observed that contrary to the Appellant’s submission in paragraph 8.4 of her brief, the Constitution of the Federal Republic of Nigeria does not anywhere define “Civil Servant” but “Civil Service of the Federation” which it defines as ” service of the Federation in civil capacity as staff of the office of the President, the Vice President, a Ministry or department of the Government of the Federation assigned with the responsibility for any business of the government of the federation”. The same constitution defines “public service of the federation” as including staff of any statutory corporation established by an Act of the National Assembly. It is clear from the foregoing that the Respondent is both a civil servant and a public servant.
It is instructive to note that, the argument as to whether the Respondent is a civil servant or a public servant, in any event, does not even arise at all. I will explain.
(a) The Appellant stated that her conditions of service are similar to those in the public service. See page 8 of the record, paragraph 3 (1) and in Exhibit B, that the Respondent’s case would be determined in line with the Civil Service Rules No.04201. See page 907 of the Record, paragraph 4.
(b) The Respondent’s averment that his employment is governed by the Civil Service Rules was not controverted, and he attached Exhibit N (pages 27 and 28 of the Record) which was not in any way disparaged or otherwise objected to by the Appellant. The Appellant cannot fault reliance by the lower court on this or any of the other documents attached to the Respondent’s affidavit in support of the originating summons.
(c) The Civil Service Rules thus constitutes the agreement between the Appellant and the Respondent, and the lower court was thus right in basing his decision thereon.
(d) The Appellant had the burden to justify her claim that the respondent’s employment is governed otherwise than by the Civil Service Rules, but filed no counter-affidavit to disprove the Respondent’s claim.
These issues in view of the foregoings, are resolved in favour of the Respondent, and against the Appellant.
Last but not the least issue for determination is issue No. 4 formulated by the Appellant which is whether on the preponderance of evidence, the learned trial judge was wrong in awarding judgment to the Respondent.
It is noteworthy to observe that though the Appellant in his brief of argument claimed to have distilled issue three from grounds three and four of the grounds of appeal, no argument had been proffered in support of ground 4 by the learned Counsel.
In any event, the Appellant never contested the factual bases of the Respondent’s case before the lower court as she did not file any Counter-affidavit to dispute or challenge the facts relied upon by the Respondent. The case, needless to say as stated elsewhere in this judgment was decided on the facts averred by the Respondent as thus admitted.
In the light of the above, I am of the considered view that the Appellant cannot be heard to complain of the judgment being against the weight of evidence. The learned trial judge was right in basing his decision on the undisputed facts placed before him by the Respondent.
In the case of Balogun vs. Agboola (1977) 10 SC (Reprint) 83 at 88 the Supreme Court held that it is not the business of an appellate Court to substitute its own views of undisputed facts for the views of the trial Court. In the instant case, the Appellant as can be gleaned from the Records, never placed any fact before the lower Court requiring that Court to weigh same on one side of the imaginary scale against those of the Respondent on the other side, as envisaged by the decision of the Supreme Court in Mogaji vs. Odofin (1978) 4 SC P. 65. This issue is resolved in favour of the Respondent and against the Appellant.
In conclusion, all the issues having been resolved in favour of the Respondent, this appeal fails and is dismissed accordingly with N50,000.00 costs against the Appellant and in favour of the Respondent.
SOTONYE DENTON WEST J.C.A.: The judgment just delivered by noble lord Hon. Justice Tijjani Abdullaji (PJ) JCA, has adequately addressed the issues raised in this appeal. However, I still abide by reasoning in the lead judgment delivered by me in this court in appeal number CA/IL/19/2010, which is a sister appeal.
I therefore restate that the respondent in this appeal was properly removed from office in accordance with the order of the court in my said judgment. I hold strongly to my views in that judgment that it would not be right or equitable to foist an employee who has been badly behaved on the employer. No court of law generally, can force an employer to retain the services of the employee more so when his services are no longer required by this employer . See UBN PLC V. OGBOH (1995) 2 NWLR (PT.370) 647, WAEC V. OSHIENEBO (2007) ALL FWLR (PT.370) 1501 @ 1581, NNPC V. OLUBAYO (2006) ALL FWLR (334) 1855 @ 18979 AND NNPC VS. OLAGBAGU (2006) ALL FWLR (PT.334) 1855 @ 1899.
Granted in my finding that there was no fair hearing as required by law and for which he was compensated, nevertheless there was adequate instance of unrebutted evidence of misdemeanor on the pat of the respondent in this appeal in my said judgment to warrant the order made by me thus. The Appellant (now Respondent) having not enjoyed fair hearing in respect of the allegations made against him by the employers as herein determined, should nevertheless be warned that it is not only necessary but also desirable for him to live above board always and avoid any act of misconducts”
Therefore it my further view that an employee who has badly behaved cannot enjoy the protection offered under the Law and therefore should have been dismissed. Further, if the respondent who is the plaintiff in this appeal is not satisfied with the order of this court as applied by the appellant who are the defendant in this appeal, he ought to have appealed on the said lead judgment than taking out a writ of summons against the appellant.
IGNATIUS IGWE AGUBE J.C.A.: I have read the draft of the lead judgment of my noble Lord Tijjani Abdullahi (PJ) and am in complete agreement with his reasoning and conclusion that this appeal is unmeritorious and should be dismissed accordingly.
My Lord has adequately dealt with all the issues that have arisen from this appeal and ordinarily, I would have had nothing to add than to support his reasoning and conclusions.
It suffices to say however, that it would appear that the Appellants misapprehended the prior judgment of this Court which ordered the reinstatement of the Respondent for wrongful dismissal or termination of his appointment. The Appellants had no tangible reason to question the retention of the Respondent’s one month salary by him, since that was only part of the totality of his emoluments and entitlements for the number of months the wrongful termination of his appointment lasted, before reinstatement by this honourable Court. In the same vein the Appellants cannot proceed to terminate the Respondent’s appointment which is statutorily flavoured a second time by payment of a month’s salary in lieu of notice.
As long as the Appellants continue to flout the terms and conditions of an employment which is statutorily flavoured, we shall continue to order reinstatement and payment of all the Respondent’s entitlements until sanity and the rule of law prevails on the Appellants.
It is on this score and the fuller reasons advanced in the lead judgment of my noble Lord and brother that I also dismiss the appeal and abide by the order as to costs.
Appearances
H. Kareem Esq.For Appellant
AND
M. A. Bello Esq., Badrudeem A. A. Esq. and M. A. Raji Esq.For Respondent
