FEDERAL MEDICAL CENTRE, IDO. EKITI & ORS V. ISAAC OLUKAYODE OLAJIDE
(2011)LCN/4436(CA)
RATIO
GROUND OF APPEAL: WHETHER ANY GROUND OF APPEAL NOT COVERED BY ANY OF THE ISSUES RAISED WILL BE DEEMED ABANDONED AND WHETHER APPEALS ARE ARGUED AND DETERMINED BASED ON THE ISSUES FORMULATED THERE FROM
It is the law that any ground of appeal not covered by any of the issues raised is deemed abandoned. Appeals are certainly not argued and determined based on the grounds of appeal but issues formulated there from. In the case of MBELEDOGU V. ANETO (1996) 2 NWLR (PART 429) 157 at 165 in a similar situation as has arisen here this court held thus: “It is trite law that a ground of appeal in respect of which no issue has been formulated will be deemed to have been abandoned and as such must be struck out”. I am fortified by the above authority and by the doctrine of judicial precedent; and have no reason to depart from MBELEDOGU’S CASE (supra). Appeals are not argued based on the grounds of appeal but issues formulated there from, see also the cases of AROMOLARAN & ANAR V. KUPOLUYI & ORS (1994) 2 NWLR (PART 325) 221, and ONIFADE V. OLAYIWOLA & ORS (1990) 7 NWLR (PART 161) 130 AND NDIWE V. OKOCHA (1992) 7 NWLR (PART 252) 129. The resultant effect is that ground 2 of the 1st and 2nd appellants Notice of Appeal is deemed to have been abandoned and is hereby struck out. PER CHIDI NWAOMA UWA, J.C.A
GROUND OF APPEAL: WHETHER GROUNDS OF APPEAL MUST ARISE FROM A DECISION OF THE COURT FROM WHICH ISSUES FOR DETERMINATION WOULD BE DISTILLED OR FORMULATED; WHETHER WHERE THE BASIS FOR ATTACKING A JUDGMENT IS FALSE OR NON-EXISTENT, THE GROUND OF APPEAL BASED ON THE MISLEADING PREMISE WILL BE DECLARED INCOMPETENT
It is trite that grounds of appeal must arise from a decision of the court from which issues for determination would be distilled or formulated. Where a ground is not a true picture of what the court has decided which would warrant a review or a reversal of the decision, this court would not entertain it. In the judgment of the trial court, the learned judge did not ignore the issue of the non-juristic personality of the 1st and 4tn defendants (now appellants) but made a definite pronouncement on it. Therefore, where the basis for attacking a judgment is false or non-existent, the ground of appeal based on the misleading premise as in this case is incompetent, lt is a misrepresentation of the actual decision of the trial court which naturally vitiates the basis of the complaint on appeal. PER CHIDI NWAOMA UWA, J.C.A
GROUND OF APPEAL AND ISSUES: WHETHER OR NOT GROUNDS OF APPEAL AND THE ISSUES DISTILLED THERE FROM FOR DETERMINATION MUST ARISE FROM THE DECISION OR JUDGMENT APPEALED AGAINST
It is trite that grounds of appeal and the issues distilled there from for determination must arise from the decision or judgment appealed against, issue one as couched states that the trial judge ignored and/or did not take a decision concerning the issue of the non-juristic personality of the 1st and 4th appellants and proceeded to hear the matter without determining the preliminary issue of their capacity to be sued. I disagree. PER CHIDI NWAOMA UWA, J.C.A
PARTICULARS OF GROUND OF APPEAL: OBJECT OF PARTICULARS OF A GROUND OF APPEAL
lt is trite that particulars of a ground of appeal are there to support and explain further, the complaint raised in the ground of appeal. The particulars are therefore not to be seen the same way as the grounds. PER CHIDI NWAOMA UWA, J.C.A
EMPLOYMENT WITH STATUTORY FLAVOUR: CONDITIONS THAT MUST BE MET FOR AN EMPLOYMENT TO BE HELD TO HAVE STATUTORY FLAVOUR ; THE DISTINCTION BETWEEN EMPLOYMENT WITH STATUTORY FLAVOUR AND OTHER EMPLOYMENT
In agreement with the submissions of the learned counsel to the 1st set of appellants to the effect that for an employment to be held to have statutory flavour the following conditions must be met: 1) The employer must be a body set up by statute. 2) The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned. In a plethora of legal authorities in recent times, the Apex court has given a clear distinction between employment with statutory flavour and other employment. In employments governed by statute, procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which the parties agreed to be master and servant. PER CHIDI NWAOMA UWA, J.C.A
In The Court of Appeal of Nigeria
On Thursday, the 31st day of March, 2011
CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Akure, delivered by L.J. Akanbi, J on 26th November, 2007, at the time the action was instituted, Ado Ekiti Division of the Federal High court had not been created. After the suit was transferred to Ado Ekiti Judicial Statement signed by J.D Orung, pages iv-v of the printed records of appeal.
The appellants herein were the defendants before the trial court, while the respondent was the plaintiff, in his amended writ of summons dated and amended on 9/10/06 (vide the application, dated 21/3/06 pages 13 – 19, of the records, by which the amended writ of summons was brought in, pages 33-34 of the records.) The plaintiff’s claim at the trial court against the defendants jointly and severally is 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//P278/64 of 8th November, 2005 is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever,
b) A mandatory order on the defendants to re-instate the plaintiff with full entitlements from the date of termination of the appointment till judgment and thereafter”
At the trial, the respondent as plaintiff called two witnesses and tendered several Exhibits amongst which were his letter of appointment and a query.
The 1st and 2nd appellants on their part called two witnesses while the 3rd and 4th respondents called a sole witness. The respondent gave evidence to the effect that he was appointed by 1st appellant on 26th May, 2000 as a nurse, page 6 of the records, his appointment was confirmed after two (2) years, as per letter of confirmation dated 9th July, 2004, reference No. FMC/ID/EK/232, page 7 of the records of appeal.
The respondent was found culpable by the appellants for his role in refusing to allow a Medical Doctor perform an operation in the theatre which resulted in the death of the mother and child, thereafter his appointment was terminated by his employer the 1st Appellant. This resulted in the respondent filing the present action at the Federal High Court, Akure.
The judgment of the trial court of 26th November, 2007 was given in favour of the respondent, and an order of reinstatement of the respondent was ordered amongst other reliefs granted.
Dissatisfied with the said judgment, the 1st and 2nd set of appellants, appealed to this court.
There were two Notices of Appeal filed, the first was filed on 29/11/07 with a sole ground of appeal and the second one was filed on 22/2/08 containing six (6) grounds of appeal.
The former was amended on application (dated 17/17/08, filed on 18/7/08) with the leave of this court granted on 10/2/09 in which additional grounds 2 – 6 were deemed filed on that day by the 1st and 2nd appellants as applicants.
The second Notice was also amended on application by the 3rd and 4th appellants as applicants, with the leave of this court filed additional grounds 7 – 9, the Notice dated 11/4/09, filed on 14/5/09 was deemed as properly filed and served on 20/5/09.
As a result, the 1st and 2nd appellants’ grounds of appeal are six (6) while that of the 3rd and 4th appellants are nine (9) in total.
From the 1st and 2nd Appellants’ Notice and grounds of Appeal, four (4) issues were distilled for determination. The issues are as follows:
1. “Whether the trial judge was justified in holding that the Plaintiff/Respondent’s employment 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 court was justified in ordering payment of all salaries and allowances to the Plaintiff/Respondent”.
On the part of the 3rd and 4tn Appellants out of their nine (9) grounds of appeal also distilled four (4) issues for determination by this court, they are :-
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. (Grounds 3 and 4)
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. (Grounds 2 and 5)
3. Whether it is every employment in a Federal Government Agency that is clothed with statutory flavour. (Grounds 6, 7 and 8)
4. Whether it is possible in law for an employer of labour to have the power to hire without a corresponding power to fire. (Ground 9)”
In arguing this appeal, the learned counsel to the 1st and 2nd Appellants (1st set of appellants) Kola Kolade Esq., adopted and relied on his brief of argument dated 18th May, 2009, filed on the 19th May, 2009, deemed as properly filed and served on 20th May, 2009. In the said brief of argument in respect of their first issue, it was submitted that the respondent as plaintiff owed the duty of proving the conditions of service of his employment and the breach thereof to entitle him to judgment, which he failed to do. Two conditions for employment with statutory flavour were given as:
1. The employer must be a body set up by a statute.
2. The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned.
Reliance was place on the case of CHIEF TAMUNOEMI IDOMIBOYE OBU V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2005) 3 NWLR PART 8 pg. 276 at 287 RATIO 7.
It was the submission of counsel that the 1st Appellant who employed the respondent is not a creation of any law in Nigeria, but set up to deliver health care services even though a parastatal under the Federal Ministry of Health which hires and fires its staff and does not have recourse to the Federal Civil Service Commission and that the Federal Ministry of Health does not interfere in its employment issues.
It was submitted further that the 1st Appellant conducts its affairs based on decisions of its Board of Directors and any Rule of such institutions as the teaching Hospitals. It was also argued that this fact is corroborated by the respondent to the extent that he was employed and confirmed by the 1st Appellant with the approval of the 2nd Appellant; his appointment was also terminated by the 1st appellant. Relied upon is the case of STEEL ROLLING CO. LTD (2005) 2 NNLR (PART 5). 294 AT 302 RATIO 14.
It was submitted by learned counsel that the trial court was wrong to have relied heavily on the evidence of the respondent who made out that he was employed by the 1st Appellant on a delegated authority from the Federal Civil Service Commission when he did not prove such delegated authority through evidence.
While relying on the case of KATTO V. CENTRAL BANK OF NIGERIA (2005) 2 NNLR PART 4, PAGE 1 at PAGE 6. It was submitted that the respondent as plaintiff ought to have placed before the court the following:
a) The terms of the contract of employment.
b) Prove in what manner the said terms were breached by the employer, before he could succeed in his action for wrongful termination of appointment.
It was submitted that the respondent failed to prove that his employment was governed by the Civil Service Rules.
Further, that the 1st appellant is not bound by the Public Service Rules as contained in paragraph 2 of page 6 of the records of appeal, in which the respondent’s letter of appointment, reads:
“Your conditions of Service will generally be in accordance with those applicable in cognate institutions with the Federal Public Service, as may be adopted or varied from time to time”.
The respondent was said to have failed to prove how the Rules are binding on the 1st Appellant, also that the letter of appointment did not clearly state that the respondent’s employment shall be subject to public service Rules. The respondent was said to have failed to establish the terms of his contract of service, reliance was placed on the case of AMODU V.AMODE (1990) 5 NWLR PART 150, 356 AT 323. In also submitting that it is never the duty of the employer to prove same, see KATTO V. CENTRAL BANK OF NIGERIA (SUPRA). It was submitted that the respondent failed to prove that he was employed subject to the Rules of the Public service, also referred to once again was the case of BABATUNDE V. OSHOGBO STEEL ROLLING & CO. LTD (2005 (SUPRA).
Further, that the respondent’s action ought to have failed as he could not confer upon the 1st appellant any status not conferred it by law; we were urged to allow the appeal on this issue.
On their second issue, it was submitted that the learned trial judge ought not to have ordered reinstatement of the respondent. The respondent’s employment was said not to have statutory flavour and that the 1st appellant had the power to terminate the respondent’s employment without any reason since he who hires can fire with or without any reason, in this case that there was reason of gross misconduct on the side of the respondent, and the 1st appellant was justified to have terminated his appointment, see NITEL PLC V. AKWA (2006) 1 FWLR PART 2g5. 61 at 65 RATIO 3. Finally on this issue, that a master or an employer is entitled to suspend, retire, terminate or dismiss his or its servant/employee’s appointment for good or bad reason or no reason at all.
In arguing their third issue, the learned counsel submitted that the procedure adopted by the 1st Appellant did not violate the rule of natural justice of fair hearing. The queries given to the respondent,
(pages 9, 10 and 11 of the printed records) were referred to while the response (page 9,) it was submitted, was enough fair hearing. Also, that a panel need not be set up, once an employee as in this case is given an opportunity to state his case it is enough before a disciplinary action is taken against him. Apart from the queries, the 1st appellant had set up an internal staff disciplinary committee and a ministerial committee to inquire into the allegations of misconduct and that the respondent was unable to clear himself before the two committees following which his appointment was terminated by the 1st respondent, which was fair hearing contrary to the view of the learned trial judge.
On their fourth and last issue, learned counsel submitted that the respondent was not entitled to the salaries and allowances ordered by the trial court. It was contended that the respondent’s appointment having been rightly terminated all other ancillary reliefs ought to have failed.
Without conceding, that the respondent’s appointment was wrongly terminated, it was of the view of the learned counsel that the respondent’s remedy does not lie in his reinstatement or full entitlements from the date of termination but only in what he would have earned in the period of notice required to be given, since there was no agreement, that he required only a reasonable time, NITEL V. AKWA (SUPRA) was referred to and relied upon. We were urged to allow the appeal and set aside the judgment of the trial court.
On behalf of the 3rd and 4tn Appellants (2nd set of appellants) the learned counsel Paul Ogbu Esq. adopted and relied on his brief of argument dated 28th May, 2010 filed on 1st November, 2010 deemed as properly filed and served on the same day. On their first issue, it was submitted that the constitution of parties to a case, competency and jurisdiction of the court ought to be resolved first before proceeding with the matter, it is a condition precedent. It was submitted that the preconditions for the exercise of jurisdiction were not met or complied with in the present case. The trial judge was said to have fallen into an error of law when he assumed jurisdiction without first dealing with the non-juristic personality of the 1st and 4th defendants at the trial, even though it was raised at the trial, the case of SAUDE V. ABDULLAHI (1989) 4 NWLR (PART 116) 387 AT 422 was referred to. It was argued that non-compliance with any stipulated pre-condition makes the suit incompetent and the court lacks jurisdiction to entertain it, the following cases were relied upon: ADUKOLU V. NKEMDILIM (1962). ALL NLR (PART 4) 587 WESTERN STEEL WORKS LTD V. IRON &-STEEL WORKERS UNION OF NIGERIA (1986) 3 NWLR (PART 36) 617, GAMBARI V. GAMBARI (1990) 5 NWLR (PART 152) 572 and NIGERIA PORTS PLC V. OSENI (2000) 81 NWLR (PART 669) 410 at 417 – 418.
In their second issue, it was submitted that the learned trial judge had no justification to order the reinstatement of the respondent, for the reason that the respondent’s appointment was not one with statutory flavour, his appointment could be terminated by the 1st Appellant with or without reason, more so when the respondent’s appointment was terminated for misconduct, reference was made to the case of NITEL PLC V. AKWA (2006) (SUPRA) to the effect that a master could suspend, retire, terminate, or dismiss his servant’s appointment with or without reason and further that the court cannot impose an employee on an unwilling employer.
The termination of an employee’s appointment it was submitted by learned counsel, could only be declared null and void and the employee re-instated in the rare circumstances when the employee enjoys special status or office by virtue of statutory regulations, see SHITTA BAY V. FGSC (1981T 1 S.C. 40. and OLATUNBOSUN V. N.I.S.E.R. We were urged to allow the appeal on this issue.
With issue, three, it was the submission of counsel that an employment is clothed with statutory flavour when it is protected by statute which also makes provisions for the procedure for employment and termination of such employment, reference was made to the case Of CENTRAL BANK OF NIGERIA V. MRS AGNES M. IGWILO (2007) 14 NWLR (PART 1054 P. 393 at 386. Also referred to were the CASES Of OLANIYAN V. UNILAG (1985) 2 NWLL (PART 9 599) And NWLR (PART 427) at 674.
It was the contention of the learned counsel that, from the evidence adduced at the trial court, the Respondent’s employment with the 1st Appellant is not one clothed with statutory flavour and that as a nursing officer there is no provision in any statute prescribing the procedure for his appointment into and removal from his position.
Further, that the 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 apply. The respondent’s appointment was said not to be clothed with statutory flavour but governed by terms under which the Respondent accepted to serve the 1st appellant. It was argued that for the Civil Service Rules to apply in the termination of the appointment of an employee, the employee must be employed pursuant to the Civil Service Rules. See, OKOMU OIL PALM COMPANY LIMITED V. O. S. ISERHIENRHIEN (2001) 6 NWLR (PART 710) 661. It was submitted that there is no evidence that his appointment was regulated by the Civil Service Rules, therefore that the respondent ought not to expect his removal to be pursuant to the Civil Service Commission Rules, and that failure to terminate his employment outside the ambit of Civil Service Rules amounted to wrongful termination of his appointment. It was argued that in determining the principles guiding the contract under which a professional is employed the conduct of the parties is a sure guide as to the terms. We were once again urged to allow this appeal on this issue.
On the 3rd and 4th appellants’ fourth and last issue it was submitted that the power to hire is also the power to fire, reliance was placed on the case of ISHENO V. JULIUS BERGER NIGERIA PLC (2008) 2-3 S.C (PART 11) 78 at 107. Further, that the learned trial court’s view that the 1st appellant was under a delegated authority of the Federal Civil Service Commission to hire but not to fire does not conform with legal positions in labour law and that even if the 1st appellant was under a delegated authority of the Federal Civil Service Commission to hire the Respondent, the delegation would include the delegation to discipline like to fire when the respondent errs. We were urged to allow the appeal on this issue.
In response to the submissions on behalf of the 1st and 2nd appellants, as a preliminary issue, the respondent submitted that out of the six grounds of appeal from which four issues were formulated for determination by this court by the 1st and 2nd appellants, ground 2 of the Notice of Appeal was not covered by any of the issues, and that any ground of appeal that is not covered by an issue is deemed abandoned, we were urged to so hold.
In reaction to the issues formulated by the 1st and 2nd appellants, the respondent formulated two issues as follows:-
1. “Whether the trial court was right in holding that Public service Rules govern the appointment of the Plaintiff.
2. Whether the trial court was right when it held that the termination of plaintiff’s appointment was unlawful and consequently ordered his reinstatement”.
It was the submission of learned counsel that the respondent as plaintiff in his pleadings before the trial court pleaded that Public service Rules govern his appointment, he tendered his letter of appointment in support, that is Exhibit ‘p1’, by which the respondent was given the impression that the Public service Rules govern his appointment could not go back on it, as it would not be made to the case of N.I.I.A. V. AYANFALU (2007) 2 NWLR (PART 1018) 247, 251, RATIO 5.
The respondent also tendered Exhibit ‘P4’, the query issued to him by the 1st appellant which was said to be in accordance with the public Service Rules No. 04406 and punishable by summary dismissal. It was submitted that KATTO’S CASE (SUPRA) cited and relied upon by the 1st and 2nd appellants does not apply to the present case, the argument that an employer must be set up by statute is peculiar to corporations and that ministries, parastatals or extra-ministries may or may not be created by statute.
It was emphasized that the Public Service Rules applied to all parastatals and ministries and that the 1st appellant is a parastatal of the Federal Government and the content of Exhibit ‘P4′ confirmed this position to the effect that the respondent’s employment is governed by the Public Service Rules. The Case of IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005)16 NWLR (PART 951 378-382 RATIO 1, was relied upon in support, also Rule 01001 of the Public Service Rules. Learned counsel reiterated that the respondent challenged the Ministerial panel set up to try two nurses (not the respondent) that recommended his dismissal and that the query issued to him was also wrong. We were urged to resolve this issue in favour of the respondent.
The argument under issue one was adopted by the learned respondent’s counsel in arguing his issue two. He submitted that in the termination of the respondent’s appointment the relevant provisions of the Federal Public Service Rules, particularly Rules 04303 to 04306 are applicable dealing with discipline of public Servants, similarly, the provisions of Rule 04103 was said to have been violated. Further, that from the respondent’s letters of appointment and promotion even though the appellants have the power of appointment, they did not possess the power of dismissal or termination. The 1st and 2nd appellants were said to have breached the rules, reference was made to the pleadings, paragraph 4(v) of the Amended Reply to the statement of Defence of the 1st and 2nd Defendants now appellants. The evidence of the Dw1 and Dw2 was said to have corroborated the pleadings to the effect that the Ministerial panel were to look into the dismissal of the two nurses, Shuaib Adewole and Isiaka Tajudeen. With the 1st panel, the respondent was said not to be on trial he was only a witness, his dismissal was said to have contravened Rule 04306 (v) and (vi), reference was also made to paragraph 12 of the Amended statement of claim. It was submitted that the respondent was not given fair hearing, reliance was placed on the case OLATUBOSUN V. NISER (1998) (PART 80, 25, 30 at PAGE 49, also from the evidence before the trial court, the Dw3 also had adduced that the query given to the respondent be withdrawn.
The learned counsel to the respondent on reliance on the case of SALIMAN V. KWARA POLY (2006) 5 NWLR (PART 974, 477, 482) RATIO 4, reiterated that the learned trial court was right in its judgment to have ordered the reinstatement of the respondent’s appointment with all the entitlement. Other cases relied upon are: GOVERNOR, KWARA STATE V. OJIBARA (2007) ALL FWLR PART 348, 864, 869, RATIO 4. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) (SUPRA), OLANIYAN V. UNIVERSITY OF LAGOS (SUPRA), ADEDEJI V. POLICE SERVICE COMMISSION (1968) NMLR 102 AND FALOMO V. LAGOS STATE PUBLIC SERVICE COMMISSION (1977) 5SC 51 .
It was the contention of learned counsel that since the termination of the respondent’s employment was wrongful and a nullity, the order of reinstatement by the trial court is in order. We were urged to resolve this issue in favour of the respondent and to dismiss the appeal with heavy costs.
In reaction to the 3rd and 4th appellant’s brief of argument the respondent in his brief of argument, (details of which was earlier given in this judgment,) adopted the issues as formulated by the 3rd and 4th Appellants. In respect of their issue one, the learned counsel to the respondent submitted that the first issues as well as grounds 3 and 4 from where it was formulated are incompetent, defective and bad in law since the grounds did not emanate from the decision appealed against, submitting that the trial court did not ignore the issue of juristic personality raised by the 3rd and 4th appellants. Reference was made to pages 138-139 of the printed records, where it was argued that the trial court pronounced on the issue, we were urged to strike out this first issue and grounds 3 and 4 of the Notice of Appeal. The following cases were cited and relied upon AZAZI V. ADHEKEGBA (2099) ALL FWLR (PART 484, 1545. 1566. Paragraphs B-C; MANHATTAN INV. LTD V. CO-OP DEV. BANK PLC (2009) ALL FWLR (PART 483) 1381, 1388, SARAKI V. KOTOYE (1992) 9 NWLR (PART 264. 156. 1841 and ATOYEBI V. GOVERNMENT OF OYO STATE (1994) 5 FWLR (PART 344) 290, 305.
It was also the argument of the learned counsel that the issue of non-juristic personality of the 1st appellant (as defendant) was never pleaded. Paragraph 10 was highlighted saying that only the juristic personality of the 3rd and 4th respondents was challenged, and not having pleaded it at the lower court, they cannot now raise it in this court, see ADMINISTRATOR/EXECUTOR, ESTATE, AFAPHA V. EKE-SPIFF (2003) NWLR (PART 800. 133.) RATIO 11 and the case of IREPODU-IFELODUN L.G. BALEMO (2008) ALL FWLR (PART 420) 708, 682, RATIO 8.
420.) 208, 682, RATIO 8. It was submitted that the 4th appellant is a nominal party, and that it was the 3rd appellant that started the ball rolling in this suit by authorizing the issuance of the letter of termination of appointment.
Without conceding, that even if grounds 3 and 4 are competent the 1st appellant is a juristic person having been created by a decree. Also, that it was admitted by the appellants (paragraph 1.01 of their brief of argument) that the 1st appellant was set up by a Federal Government Fiat. Learned counsel in support, referred to the case of THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) NWLR 310 and CARLEN V. UNIVERSITY OF JOS (1994) 1 SCNJ 72.
In respect of issue two, it was also argued that grounds 2 and 5 of the Notice of Appeal are incompetent, in that they alleged errors of law and that the particulars are vague’ nebulous and narrative, without particularizing anything. The alleged errors in grounds 2 and 5 were said to be unrelated to the grounds of appeal, therefore defective.
Without conceding to the competence of grounds 2 and 5 learned counsel submitted that the trial court was right and justified to reinstate the respondent, which was also admitted by the appellants through the DW3 who agreed that the Federal Public Service Rules govern the appointment of the staff of the 1st appellant’ page 91 of the records’ by virtue of S. 75 of the Evidence Act, having been admitted needs no proof. The case of NITEL PLC V. AKWA (2006) (SUPRA) cited was said not to be relevant to this case, and submitted that the case of IDERIMA (SUPRA) is applicable. The evidence of the DW2 and DW3 under cross examination were reviewed to highlight how the appellants flouted the Public service Rules (PSR) and denied the respondent fair hearing. Further, that the procedure adopted by the appellant in disciplining the respondent violated Rules 04303 to 04304 of the Public service Rules, the only order for the court to make was reinstatement which the court did.Reliance was placed on the cases of SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION, (1981) 1 S.C.26. OLANIYAN V. UNIVERSITY OF LAGOS (NO.2) 1985 2 NWLR (PART 9, 559) and EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PART 34) 162.
In responding to the third issue, the learned counsel submitted that ground 6 upon which this issue is based, is incompetent as it did not emanate from the judgment of the trial court and it was never canvassed. We were urged to hold that ground 6 is defective, bad and incompetent.
It was the argument of counsel that this issue is academic as it did not arise from any decision of the trial court instead, that (at pages 135-137 of the records) the learned trial judge gave what should be examined in determining what should govern the service of an employee, these are the letter of employment and the pleadings. In the alternative, the learned counsel on the issue of what should govern the respondent’s termination of appointment referred to the respondent’s pleadings, the evidence of Dw2 before the trial court under cross examination, his letter of appointment and the query the appellant gave the respondent. Finally on this issue, that the case of OKOMU OIL PALM LTD V. ISHERHIENREN (SUPRA) does not apply, but is applicable in a master and servant relationship in which the conditions of service is usually contractual.
The fourth and last issue of the 3rd and 4tn appellant’s was said to be incompetent, and the issue academic in that the trial court never held that the employer of labour has no corresponding power to fire but that the trial court made the observation concerning the provisions of the public service Rules to the effect that heads of extra-ministerial department such as the 2nd defendant at the trial court and the 3rd appellant have no power to dismiss senior employees. Further, that Rule 04103 of the Public Service Rules provides that heads of extra ministerial departments have delegated powers to discipline but not of dismissal.
We were urged to resolve all the issues in favour of the respondent dismiss the appeal and affirm the judgment of the trial court.
I will start with the preliminary issue raised by the respondent in response to the issues formulated for determination by the 1st and 2nd Appellants. A close look at the four (4) issues formulated from the six grounds of appeal, as rightly argued by the learned counsel to the respondent, ground 2 (of the additional grounds of appeal), the question as to whether the 1st appellant is a juristic person and the learned trial judge’s holding in that respect clearly did not form part of the four issues raised for determination of this appeal. It is the law that any ground of appeal not covered by any of the issues raised is deemed abandoned. Appeals are certainly not argued and determined based on the grounds of appeal but issues formulated there from. In the case of MBELEDOGU V. ANETO (1996) 2 NWLR (PART 429) 157 at 165 in a similar situation as has arisen here this court held thus:
“It is trite law that a ground of appeal in respect of which no issue has been formulated will be deemed to have been abandoned and as such must be struck out”.
I am fortified by the above authority and by the doctrine of judicial precedent; and have no reason to depart from MBELEDOGU’S CASE (supra). Appeals are not argued based on the grounds of appeal but issues formulated there from, see also the cases of AROMOLARAN & ANAR V. KUPOLUYI & ORS (1994) 2 NWLR (PART 325) 221, and ONIFADE V. OLAYIWOLA & ORS (1990) 7 NWLR (PART 161) 130 AND NDIWE V. OKOCHA (1992) 7 NWLR (PART 252) 129. The resultant effect is that ground 2 of the 1st and 2nd appellants Notice of Appeal is deemed to have been abandoned and is hereby struck out.
With the issues formulated by the 3rd and 4th appellants, their first issue was distilled from grounds 3 and 4 of the Notice of Appeal. The issue questioned whether the trial judge was right in ignoring the issue of the non-juristic, personality of the 1st and 4th defendants and proceeded to assume jurisdiction. It is trite that grounds of appeal and the issues distilled there from for determination must arise from the decision or judgment appealed against, issue one as couched states that the trial judge ignored and/or did not take a decision concerning the issue of the non-juristic personality of the 1st and 4th appellants and proceeded to hear the matter without determining the preliminary issue of their capacity to be sued. I disagree. This is contrary to what is contained in the records of appeal and the judgment of the trial court. At page 138 of the printed records the learned trial judge held as follows:
“On the legal status of the 1st and 4th defendants which learned counsel for the 3rd and 4th defendants submitted are not juristic. Learned counsel for the plaintiff has submitted per contra relying on the case of CARLING V. UNIJOS (SUPRA). I agree with the proposition of the law as canvassed by the plaintiff’s counsel that when establishments, organizations, office, position or tribunal that can inflict injury or whose act or action can affect the right and obligation of citizen they will be juristic suable in law. The defendants in this case all fit into that category making them suable in law”.
It is trite that grounds of appeal must arise from a decision of the court from which issues for determination would be distilled or formulated. Where a ground is not a true picture of what the court has decided which would warrant a review or a reversal of the decision, this court would not entertain it. In the judgment of the trial court, the learned judge did not ignore the issue of the non-juristic personality of the 1st and 4th defendants (now appellants) but made a definite pronouncement on it. Therefore, where the basis for attacking a judgment is false or non-existent, the ground of appeal based on the misleading premise as in this case is incompetent, lt is a misrepresentation of the actual decision of the trial court which naturally vitiates the basis of the complaint on appeal. See AZAZI V. ADHEKEGBA (2009) (SUPRA), M.B.N. NWOBODO (2005) 14 NWLR PAGES 379, BELLO VS. ANUWA (1999) 8 NWLR (PART 615) 454, EGBE V. ALHAJI (1990) NWLR (PART 128) 546; BAKULE V. TANEREWA (NIG) LTD (1995) 2 NWLR (PART) 308 728 and ILOABACHIE V. ILOABACHIE (2000) 5 NWLR (PART 656) 194
I am of the view therefore that grounds 3 and 4 from which the 3rd and 4th appellants formulated their 1st issue did not arise from the decision of the trial court. Their issue one is incompetent and is hereby struck out.
The learned counsel to the respondent had also objected to the 3rd and 4th respondents’ grounds 2 and 5 of their Notice of appeal from which their Issue two (2) was formulated. It was argued that these grounds alleging errors of law and the particulars in these two grounds grossly deviated from the grounds, they were said to be vague and particularize nothing. We were urged to strike them out as they are not related to the grounds of appeal.
I have examined the said grounds 2 and 5 from which issue 2 was formulated, as well as their particulars. The grounds question the order of the trial court re-instating the respondent whose employment was terminated on alleged gross misconduct in service, which was argued occasioned a miscarriage of justice. The order of reinstatement was as a result of the termination which is the crux of the entire appeal. The particulars under grounds 2 and 5 gave further details or explanation as to the grounds. lt is trite that particulars of a ground of appeal are there to support and explain further, the complaint raised in the ground of appeal. The particulars are therefore not to be seen the same way as the grounds. See, MBA V. AGU (1999) 9SC 73. The particulars in grounds 2 and 5 in the present appeal in my humble view, do not deviate from the grounds and not at all vague and are certainly related to the grounds. The argument of the learned counsel to the respondent concerning grounds 2 and 5 being incompetent fails and is hereby discountenanced. I hold that grounds 2 and 5 with issue two (2) are competent. I will therefore examine the learned counsel’s alternative argument in resolving this issue.
In the same vein, the learned counsel to the respondent argued that ground 6 which formed part of the grounds from which the 3rd and 4th appellants 3rd issue was formulated is incompetent as well as the particulars as it did not emanate from the judgment of the trial court. I am of contrary views to that of the learned counsel, the ground with its particulars touch on the real issue in controversy that is the nature of the respondent’s employment by the 1st appellant, a Federal Government Agency; as a result I hold that ground 6 is competent.
I have examined the four (4) issues raised by the 1st and 2nd appellants and the surviving issues 2, 3, and 4 raised by the 3rd and 4th appellants, as well as the two issues raised by the respondent.
The 1st and 2nd appellants’ issue one (1) covers the 3rd and 4th appellants’ issue three (3) and the respondent’s first issue. Their second (2nd) issue covers the 3rd and 4th Appellant’s issue two (2) and also the respondent’s second issue. While their third (3) issue covers the 3rd and 4th appellants’ fourth (4) issue and the respondent’s issue two (2)
I consider the issues raised by the 1st and 2nd appellants apt for a proper determination of this appeal, resolution of same would adequately take care of all the issues raised by the parties and in doing so, I would consider the said issues raised by the 1st and 2nd appellants in this order: issues 1, 3, 2, and 4.
Issues 1 and 3 would be looked into together, as the determination of issue one would lead to the resolution of issue 3; in the same manner resolution of issue 2 would have effect on resolution of issue 4:
In the present case, the two sets of appellants argued that the respondent’s employment was not one with statutory flavour and therefore the respondent needed to prove the condition of service of his employment and the breach thereof before he could be entitled to judgment. In agreement with the submissions of the learned counsel to the 1st set of appellants to the effect that for an employment to be held to have statutory flavour the following conditions must be met:
1) The employer must be a body set up by statute.
2) The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned.
In a plethora of legal authorities in recent times, the Apex court has given a clear distinction between employment with statutory flavour and other employment. In employments governed by statute, procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which the parties agreed to be master and servant. The question here is: did the respondent’s employment have statutory flavour or was his employment under agreed terms between the parties as master and servant?
In an action for unlawful/wrongful dismissal or termination of appointment the starting point would be the conditions of service and the plaintiff must plead his letter of appointment (as also pointed out by the trial court at page 135 of the printed records). In paragraphs 3 and 4 of the respondent’s amended statement of claim, as plaintiff (page 36 of the records) the respondent pleaded as follows:
3. “Plaintiff was appointed by defendants’ on 26th May, 2000 as PERIOPERATIVE NURSE/ULTRA-SONOGRAPHER by virtue of a letter reference number FMC/ID/EK/232 of 9th July, 2004 the appointment of plaintiff was confirmed”.
In the evidence of the respondent before the trial court he tendered Exhibit ‘P1’ his letter of appointment (page 6 of the records), paragraph 2 reads:
3. “Your conditions of service will generally be in accordance with those applicable in cognate institutions within the Federal Public Service”,
The contract between the respondent and the appellants therefore, is the letter of appointment, from the contents of Exhibit ‘P1’ the appellants made it clear that his appointment condition of service is to be governed by the Federal Public Service Rules. In N.I.I.A. V. AYANFALU (2007) (SUPRA) it was held by this court that the letter of employment must be resorted to in considering and determining the rights and obligations of the parties. Apart from the pleadings of the respondent to prove the nature of his appointment, he tendered Exhibit ‘P1 in evidence which was never denied or controverted, rather the appellants also admitted the nature of the respondent’s appointment, that is, the conditions of service through the testimony of DW3 before the trial court which confirmed the appointment to be governed by the Public Service Rules. At page 91 of the records he stated as follows under cross examination:
“I agree that 1st defendant is a parastatal of the Federal Government of Nigeria.
I agree that the Federal Public Rules govern the appointment of staff of 1st defendant”.
In his argument before this court, the learned counsel to the appellants also agreed that the 1st defendants also agree that the defendant that employed the respondent is a Parastatal of the Federal Government, specifically 3rd appellant.
It was held in the case of RIDGE V. BALDWIN (1963) 2 ALLER 66, 77 that an employment with a statutory flavour arises where the body employing is under some statutory or other restriction as to the type of contract with its servant and states the grounds under which the body could dismiss. For an employment to enjoy the status of statutory flavour therefore, the manner of employment and termination must be specifically provided for in the statute creating the employment which was done in this case. In the case of IRUOLOAME V. WAEC (1992) 9 NWLR (PART 265) 303, 317 the Apex court held as follows:
“As I have already stated in this judgment there is an employment with statutory flavour when the appointment and termination is governed by statutory provisions as was the case. In OLANIYAN V. UNIVERSITY OF LAGOS (1985) NWLR (PART 9) 599: SHITTA BEY V. FEDERAL CILVI SERVICE COMMISSION”.
It is clear that the Public Service Rules govern the 1st defendant, a parastatal of the Federal Government and governed the appointment of the respondent as their staff. The 1st defendant clearly stated so in their letter of appointment to the respondent and in the testimony of the DW3 before the trial court, this was confirmed.
Without doubt, I hold that the appointment of the respondent was governed by the Public Service Rules which regulates the conditions of service of the staff of the 1st defendant, the learned trial judge was right in holding that the respondent’s employment is one with statutory flavor.
The next question is: whether the procedure the appellants adopted in terminating the appointment of the respondent was proper?
Before the termination of the respondent’s appointment by the 1st defendant (appellant) over an alleged gross misconduct he was issued with a query, tendered as Exhibit ‘P4’ , paragraph 2 states: (at page 9 of the printed records).
“This is a gross misconduct in accordance with the Public Service Rule No. 04406 and punishable by summary dismissal”.
The query issued by the 1st appellant was clearly under the Public Service Rules, (PSR) Rule No. 04406. The argument of learned counsel to the two sets of appellants that the respondent’s appointment is without statutory flavour and not governed by Public Service Rules does not hold water.
From the respondent’s letter of appointment he was appointed on HATISS 8 steps 2 (Grade level 9). The respondent pleaded that his two nursing colleagues were on trial, he was not, this was admitted in the testimony of DW3 in the trial court when he stated thus:
“The plaintiff was not a trial before the committee”
Before that he had said:
“The minister of Health approved the termination of the plaintiff’s appointment”.
No doubt the respondent was a senior Nursing Officer to whom Public Service Rules 04303 and 04300 dealing with discipline of public servants would apply. Even though he was not on trial but, in the trial that took place following which his appointment was terminated, there was no nursing officer of his status in the panel or committee contrary to Rule 04306 (v) and (vi) of the PSR .
The respondent pleaded and testified to the effect that the respondents had no locus or competence to terminate his appointment but that the Federal Civil Service Commission could. I agree considering the provisions of Rule 04103 which reads:
“The Federal Civil Service Commission has delegated full disciplinary powers to Permanent Secretaries and Heads of Extra/Ministerial Departments in respect of officers on salary G.L. 01 to G.L. 13 with the exception of the power of dismissal which has been delegated only from G.L. 01 – G.L. 06”
The above Rule made it clear that the defendants had no power or competence to dismiss or terminate the respondent’s appointment.
Even the query issued to the respondent by the appellants was wrong and the committee realized this and asked that the query Exhibit ‘4’ be withdrawn. DW3 testified thus: (Page 90 of the records)
“The committee advised that the query be withdrawn and the error corrected”.
The error was not corrected; instead what followed was another letter entitled: “Last serious warning” dated 20th April, 2005 and thereafter, a letter of termination of appointment dated 8th November, 2005.
No doubt the appellants can appoint a Senior Staff of the respondent’s cadre but, they do not have the power to terminate. Not having followed the proper procedure in terminating the respondent’s appointment, the appellants not only breached the Rules (PSR) that governed his appointment, rules of natural justice were also breached.
I agree with the learned trial judge when he held thus: (Page 140)
“Having held earlier in this judgment that the Federal Public Service Rules have constitutional force, the plaintiff who is a senior member of staff on Grade Level 09 holds his employment not at the pleasure of the defendants as his employment is protected by statute”
The end result is that issues 1 and 3 are resolved in favour of the respondent.
I said earlier in this judgment that issue two (2) would be considered with issue four (4). Having held that the respondent’s appointment had statutory flavour and that the procedure adopted in terminating his appointment was wrong, naturally the necessary order the court would make is an order re-instating the respondent. The case cited and relied upon by learned counsel to the respondent is appropriate, the case of SALIMAN V. KWARA POLY (2006) (SUPRA) at PAGE 496 this court, concerning the order to make where the, court holds that a dismissal was wrongful held thus:
“Having held that the appellant’s dismissal was null, void and unconstitutional and taking into consideration the nature of the employment i.e. the statutory flavour, the necessary order to make is that of re-instatement. THE COUNCIL OF FEDERAL POLYTECHNIC MUBI V. YUSUF and ANAR (1991) 11 at 16 – 18: (1991), NWLR (PART 165) 81”.
The learned appellants’ counsel had argued that re-instatement of the respondent was imposing an employee (the respondent) on an unwilling employer (the appellants) the line of authorities relied upon by counsel to the appellants are not applicable in this case where the respondent’s appointment has statutory flavour, they are applicable in ordinary contracts of employment (where the terms are usually specified) between master and servant where the master or employer could employ, suspend, retire, terminate or dismiss his servant or employee’s appointment with or without reason.
I hold that the learned trial judge was in order to have made the order re-instating the respondent.
In respect of issue four (4), having held that the learned trial judge was correct in ordering a re-instatement of the respondent, I do not know of any law that would justify his forfeiting all the salaries and allowances he would have earned all this while, from the date his appointment was wrongly terminated.
The respondent’s appointment was wrong and improper, his termination is protected by law, the effect is that, it is like the respondent had never left office and would naturally be entitled to all his salaries and allowances as ordered by the learned trial judge, I cannot fault the said order: See GOVERNOR. KWARA STATE V. POLICE SERVICE COMMISSION (1968) NWLR 102 and FALOMO V. LAGOS STATE OJIBARA (2007) ALL FWLR (PART 348) 864; IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PART 951) 378. OLANIYAN V. UNIVERSITY OF LAGOS (SUPRA), ADEDEJI V. POLICE SERVICE COMMISSION (1968) NWLR 102 and FALOMO V. LAGOS STATE PUBLIC SERVICE COMMISSION (1977) 5 SC 51, cite and relied upon by learned counsel to the respondent.
Learned counsel to the 1st and 2nd appellants in his alternative argument, should this court hold that the respondent’s appointment was wrongly terminated, which has been held so, he contended that the respondent’s remedy does not lie in re-instatement or full entitlements from the date of termination but, ought to be what he would have earned in the period of notice required to be given, since there was no agreement, a reasonable time. In my humble but firm view this argument is not tenable in law and is not applicable in this case considering the nature of the respondent’s appointment which has statutory flavour and the conditions clearly spelt out in his letter of appointment as to which Rules govern his service, which was not followed by the appellants. Payment for earnings in the period of notice required to be given, where not given applies in master and servant cases where the contract of service specifies the length of Notice to be given or payment of salary in lieu of the length of Notice and the latter option is chosen, that is certainly not the case here.
See, NEPA V. ISIEVEONE (1997) 7 NWLR (PART 511) 135 and the cases of NITEL V. AKWA (2006) 1 FWLR (PART 285) PAGE 61 and ISHENO V. JULIUS BERGER NIGERIA PLC (2008) 2 – 3 SC (PART 11) 78, cited and relied upon by learned counsel to the appellants, I resolve issues two and four in favour of the respondent.
In the final analysis, I am of the view that the appeal is without merit, it fails and is hereby dismissed in its entirety. The judgment of the learned trial judge L. J. Akanbi, J delivered on 26th November, 2007 granting the plaintiff’s claims in its entirety is affirmed, I award costs of N50, 000.00 (Fifty Thousand Naira) to the respondent, that is N25, 000.00 (Twenty Five Thousand Naira) to be paid by each set of appellants.
UWANI M. ABBA AJI, J.C.A: I have read in advance the lead judgment just delivered by my learned brother C.N. Uwa, J.C.A
I agree with the reasoning and conclusion of my learned brother that the appeal is without merit and I also dismiss the same. I affirm the judgment of the lower court delivered on the 26th November, 2007 granting the Respondent’s claim in its entirety.
I endorse the consequential order as to costs.
HARUNA M. TSAMMANI, J.C.A: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A.
My learned brother has adequately and admirably considered and resolved the pertinent issues that arose for determination in this appeal. I whole heartedly agree with his reasoning and conclusion that this appeal is without merit. In that regard, I too hereby dismiss this appeal entirely. I also abide by the orders as to cost.
Appearances
Kola Kolade Esq with Paul Ogbu Esq.For Appellant
AND
Olabanjo Ayenakin Esq.For Respondent
