AINA RACHEAL BANKE & ORS v. AKURE NORTH LOCAL GOVERNMENT
(2013)LCN/6228(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2013
CA/B/3/2008
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
It is trite that the court neither goes on a voyage of discovery nor does it engage in speculation, rather it depends on the materials placed before it in reaching its decisions. See ONAGORUWA v. ADENIJI (1993) 5 NWLR (Pt. 293) 317 at 346; and NNPC v. FEMFA OIL LTD. (2003) FWLR (pt. 155) 794 at 812.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. AINA RACHEAL BANKE
2. OLUWATAYO EBENEZER
3. AJAKAYE DUPE
4. DARE TOYIN
5. ADEWUMI OLAYINKA
6 AKOMOLAFE LAWRENCE
7. ADENIFUGA MARY
8. OLUWATUYI GRACE
9. AKINGBADE MARY
10. OMOLADE ADEJUGBE
11. AJIDAHUN ESTHER
12. AKOMOLAFE SUNDAY
13. BABATUNDE RODAH
14. OLOGUN COMFORT
15. AKOSILE OMOLARA
16. OYELEYE JANET
17. AYENI ANIKE
18. OWOLEYE JANET
19. ESTHER OLUWATOYIN
20. OPOKITI CAROLINE
21. AYODELE MODUPE
22. ADENIFUGA ADEBOLA
23. AYENI ALABA
24. FAMUDEHIN TAIWO
25. EMILY OLOWOYO
26. IDOWU OMOLOLA
27. OLAYEMI OLATUNDE
28. ADEYANJU OLUSOLA
29. OGUNMOLA ADEGBEMI
30. OLUWATUYI AJAYI
31. IBIOWOTISI FUNKE
32. AMINU ADEJOKE
33. AYENAKU GBENGA
34. OKUNOLA MODUPE
35. FESEMOLEHIN CECILIA
36. ADENIYI TITILAYO
37. ADARAMOLA SOLA
38. OLOKOSE SOLA
39. FAMUGBODE BUNMI
40. OYELE COMFORT
41. FATUNASE TAIWO
42. ALA STELIA AINA
43. SUNDAY ISSAC
44. LAWAL B. ABIOLA
45. ILORI TOYIN
46. FABOYO OLUBUNMI
47. OLUWAFEMI ABIGEAL
48. AUDU SIKIRAT
49. FABILOLA FUNMILAYO
50. JIMOH S. VICTORIA
51. ORISAYENDE ROSELINE
52. AKINYEMI FUNKE
53. AKINTUNDE C. O.
54. OLAITAN JUMOKE
55. OLUWATOBI SUNDAY
56. KOLAWOLE GRACE
57. FALAYI DADA OLALEKAN
58. ADELEYE ADEGBOLA
59. ADETOYINBO VICTORIA
60. AWOTIKU VERONICA
61. VICTORIA ADENUGA
62. OBAYEMI TOYIN
63. AKINSULU BUNMI
64. OLUWASANYA J. YETUNDE
65. ALADE DEBORAH
66. OLOYEMI AJONIJEBU
67. OMONIYI EVEL A.
68. OGEFA FUNKE
69 GBADAMOSI MEMUNAT
70. ATANNIYI TOPE
71. ABIODUN ADENIKE
72. ABILEKO TOPE
73. AKANLE ADEGBUSOLA
74. OGUNTIMILEHIN OLUWABUSOLA
75. AGUNLOYE KEHINDE
76. VICTORIA GEORGE
77. ENEWE FAITH
78 AKINYEKE OLAYINKA
79. AJAYI AYODELE
80. ADEBAYO ABIKE
81. AREGBESOLA OLUFUNMIKE
82. OGUNJI FUNMILAYO
83. AKINSOLA AYODEJI
84. OLUWANIYI JULIANAH
85. AKINLOOSE WEMIMO
86. ADEYEYE KEMI
87. AKOMOLAFE BUKOLA
88. AJAYI JUMOKE
89. OGUNSUYI V. DAPO
90. OMOBONI J. OLUFUNKE
91. ADEMETA APEKE O.
92. OGUNLADE ADENIKE
93. FAGBEMI BAMIKOLE
94. OLANIYAN LUSIA
95. OGUNWALE OLUWASINA
96. BABALOLA EBUN
97. ORISHAYENDE TOYIN
98. OLUWALOMOJO BOBOLA
99. OLARIBIGBE REMI
100. DAUDU SADIAT
101. OLADUNJOYE FUNMILAYO
102. AKINGBADE TOBA
103. ADEYEMI OLUSOLA
104. OLABODE ADEBANKE
105. AKANDE IBUKUN
106. ADEBAYO GRACE
107. ADEGBUSI OLAOYE J.
108. ADESUGBA ADESEHINWA
109. ODUGBESAN FATAI
110. MRS. V. A. OTI
111. ADENIYI TITILAYO
112. MRS OLOKOSE J. A.
113. OLOWOFELA TOPE
114. AKINBULI GRACE
115. ADETORO ELIZABETH
116. FAKIYA CHRISTIANAH
117. OGUNMOLA OLAYINKA
118 OLASENI ABIMBOLA
119. OGUNMOLA ABIGAEL
120. OTI CAROLINE
121. AREGBESOLA MARY
122. EMILY BABALOLA
123. OGUNMOLA JULIANAH
124. OLUSOLA JAMES
125. AJAYI JAMES
126. KIKIOWO MARY
127. OLUWATOYIN BOSEDE
128. OMONIJO DUDUYEMI
129. OGUNTUASE ABIOLA
130. ADIGUN OLUSOLA
131. ALADE O. CECILIA
132. ADEJUYIGBE ROPO
133. BAKARE C. O.
134. OBADARE BOSEDE
135. EJIDE TOPE
136. BOSEDE ADEBANJO
137. AFELUMO REMI
138. AKILO BIMBO
139. ADENIKE RACHEAL AJAYI
140. OLIJIDE ADEJOKE
141. FABILOLA AJISAFE
142. ALIMI D. ADESINA
143. OLOGEDE KOLA
144. BOSEDE AKOMOLAFE
145. AKINDUTIRE OMOLEWA
146. TAIWO OJO
147. ADENIYI ESTHER
148. AGBAJE CAROLINE
149. ONIBUDO BOSEDE
150. ADEBAYO ADENIKE
151. OLUSANYA IDOWU BOSEDE
152. ADESAKIN J. OMOWUMI
153. OGBESE IGE A.
154. OWOYEMI LYDIA
155. SUNDAY OWOTEMI
156. BAMISILE TEMITOPE
157. SHOYEMI OMOLOLA
158. ODEMONIFILA JOSEPH
159. FAMUYIDE JULIUS
160. BOLA RASAQ
161. SUNDAY FEYISARA
162. ONIFADE E. O
163. AFELUMO DUPE
164. AKINDUKO F. E.
165. FALAYE FOLUSO
166. ADEJUBE OMOLADE
167. AJEWOILE AYODELE
168. RACHEAL ADU
169. MAKANJUOLA ABIMBOLA
170. ALO OLATUNDE
171. OLUSINA VICTOR
172. IFEDAYO AJAYI
173. ADUKE AGUNLOYE
174. ARIYO OLUBUKOLA
175. BABALOLA YEMISI
176. OLAYINKA OGUNDARE
177. BABALOLA YEMISI
178. BABALOLA ABIGAEL
179. AYODEJI FALEYE Appellant(s)
AND
AKURE NORTH LOCAL GOVERNMENT Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): The plaintiffs took out a Writ of Summons issued 5th January, 2005. Pursuant to an order of the trial court obtained 3rd October, 2006 an Amended Statement of Claim dated 6th October, 2004 was filed 6th October, 2006 by the plaintiffs. The plaintiffs hereinafter referred to as the appellants instituted the action against the defendant hereinafter referred to as the respondent before the High court of Ondo State sitting at Akure claiming the following reliefs:
A DECLARATION that the omnibus letter of termination of appointment sent to the plaintiffs severally, terminating their appointment retrospectively from the employment of the defendant is wrongful, illegal, oppressive and a gross violation of relevant rules and regulations governing their employment.
AN ORDER reinstating the plaintiffs to their different cadres of employment with the defendant with payment of all owed arrears of salaries up to the time of reinstatement.
ALTERNATIVELY
AN ORDER for payment of all outstanding salaries and allowances due to the plaintiffs.
Parties exchanged pleadings and the case proceeded to trial. The plaintiffs testified through one witness while the defence called two witnesses on their behalf. Altogether six exhibits were tendered and marked A, B-B64, C-C146, D, E and F. At the conclusion of hearing and after the filing and exchange of addresses of learned counsel for either side, the learned trial Chief Judge, in a considered judgment delivered 18th October, 2007 dismissed the appellants’ claims. Being dissatisfied with the decision the appellants have appealed to this court vide a notice of appeal dated and filed 7th November, 2007 and containing two grounds of appeal.
The appellants in compliance with the rules of this court filed their brief of argument dated 12th November, 2008, filed 14th November, 2008 but deemed properly filed 1st March, 2011. The appellants’ brief of argument was settled by F. OMOTOSHO ESQ. The respondent failed to file a respondent’s brief. Thus upon the Motion on Notice dated 10th November, 2011 and filed 11th November, 2011 which motion was duly served on the respondent on 28th March, 2012, A. A. IKUJUNI for the appellants/applicants on the 3rd of April, 2012 moved this court to hear the appeal on the Appellants’ Brief of Argument alone, the respondent having failed to file any brief. The application was granted and the appeal was heard on the appellants brief alone.
At the hearing of the appeal on 18th of March, 2013 F. OMOTOSHO ESQ. adopted and relied on the appellants’ brief of argument and urged the court to allow the appeal and set aside the judgment of the lower court.
Notwithstanding the fact that the respondent failed to file a brief of argument and which failure necessitated the hearing of the appeal solely on the appellant’s brief, the appeal shall all the same be determined on its merit.
The summary of facts that led to this appeal is that the appellants who had jointly instituted an action for wrongful, unconstitutional and illegal termination of their respective appointments against the respondent, had their entire claim dismissed at the trial court. In the judgment the trial judge had at page 57 lines 16 – 19 of the record held inter alia:
“…..it is apparent from the issues highlighted that the contract of employment between the plaintiffs and the defendant is one with statutory flavor. It is therefore the Local Government (Staff) Regulations, 1960 that will govern the mode of termination of the employment.”
Also at page 58 lines 11 – 15 of the record, the learned trial judge went on to hold that:
“From the evidence before the court there has not been due compliance with the terms of the Agreement as to the length of the Notice required or the payment of a month’s notice (sic) in lieu of the stipulated notice. The notice of termination of the employment of the Plaintiffs by the Defendant was with a retrospective effect and thus not in compliance with Regulation 31.”
In spite of its findings and holdings the trial court still dismissed the appellants’ claims. Thus the appellants in this appeal have posited this sole issue distilled from their two grounds of appeal for determination.
The issue is:
“Whether having regard to the finding by the learned trial Chief Judge to the effect that the termination of the employment of the appellants was in contravention of Regulation 31 of the Local Government Service Commission Regulation, 1960, the trial court was right in dismissing the entire claims of the appellants.”
The appellants are contending herein that the trial court found that their employment is one with statutory flavor and that its determination must be in compliance with the Local Government (Staff) Regulations, 1960 as applicable to employment which is protected by statute. Being that their employment has been found to be so regulated any termination of the said appointment contrary to the Local Government (Staff) Regulations supra is null, void and of no effect. Appellants referred to the case of IBAMA v. S.P.C.D. (NIG.) LTD. (2005) 17 NWLR (PT. 954) 364 at 391.
The appellants went further by arguing that the omnibus letter of termination of appointment retrospectively is wrongful, illegal, oppressive and a gross violation of the relevant rules and regulations governing their employment. They hold the view that the learned trial Chief Judge having found this much ought to have granted the first leg of the appellants claims, hence their urge on this court to so hold.
In respect of their second relief which is for reinstatement to their different cadres of employment with payment of all owed arrears of salaries up to the time of reinstatement, the learned counsel for the appellants submitted that where a statutory employment is not terminated in accordance with the statute regulating the employment, the termination is a nullity. Counsel relied on the authority of IORZUA v. MINISTER FCT (2004) ALL FWLR (PT. 197) 1089, 1102; and OFFODE v. NEPA (2005) ALL FWLR (PT. 285) 515, 549.
The learned counsel for the appellants touched on the unchallenged and or uncontroverted evidence of the PW1 to the effect that the chairman of the respondent informed the appellants verbally that their employment had been terminated, thereafter they received retrospective letter by postage. To this end he submitted that where an employment which enjoys statutory flavor is wrongfully terminated, the necessary order to make is that of re-instatement. He referred, the court to the case of SALIMAN v. KWARA POLY (2006) 5 NWLR (PT. 974) 477 at 496 F – G where this court held as follows:
“In an employment with statutory flavor, where the court holds that the employee is wrongly dismissed, the necessary order to make is that of re-instatement. The question of imposing an employee on an unwilling employer does not arise.”
See also GOVERNOR OF EKITI STATE v. OJO (2006) 17 NWLR (PT.1007) 95 at 120 B, 121 D – B; and IFETA v. S.P.D.C. (NIG.) LTD. (2006) 8 NWLR (PT. 983) 585 at 606 – 607 para. H – B.
Further in his contention the learned counsel for the appellants said that the termination of the employment of the appellants was not only wrongful and oppressive but also null and void since the appellants adduced unchallenged evidence that they were at their various duty posts as at October, 2004 when some of them received letter dated 16/9/2004 terminating their employment with effect from 31/08/04.
While urging this court to hold that the retrospective termination of the appointment of the appellants is null and void and of no effect, the learned appellants’ counsel supported the submission with the case of ABENGA v. BENUE STATE JUDICIAL SERVICE COMMISSION (2006) 14 NWLR (PT. 1000) 610 at 620 – 621 F – B.
On his argument that a plaintiff can sufficiently prove his case by his evidence in chief and in cross-examination, counsel relied on the authorities of DAGGASH v. BULAMA (2004) 14 NWLR (PT. 892) 144 at 241 para. G – H; and OGBEIDE v. OSULA (2004) 12 NWLR (PT. 886) 86 at 117 D – E; and AKUSOBI v. OBINECHIE (2004) 2 NWLR (PT. 857) 355 at 370.
The learned counsel for the appellants stated that having found that the employment of the appellants was still under probation by Regulation 31 of the Local Government Service Commission Regulation 1960, the lower court ought to have awarded payment of a month’s salary to the appellants in the alternative to re-instatement, since by their reliefs they claimed in alternative “payment of outstanding salaries and allowances due to the plaintiffs.” He added further that the mere fact that the appellants did not specifically claim one month’s salary does not entitle them to lose their claim in that, more so as the wordings of the reliefs are clear and unambiguous; and that this is certainly not a situation where the court cannot award to a litigant what he has not claimed. Upon these submissions the learned counsel urged the court to set aside the judgment of the trial court and allow this appeal by reinstating the appellants or order for the payment of one month’s salary in addition to outstanding salaries, leave bonuses and allowances.
RESOLUTION OF THE SOLE ISSUE
Whether having regard to the finding of the learned trial Chief Judge to the effect that the termination of the employment of the appellants was in contravention of Regulation 31 of the Local Government Service Commission Regulation, 1960, the trial court was right in dismissing the entire claims of the appellants.
It is in evidence that the appellants’ respective appointments took effect from the 1st of October, 2002 and they were placed on probation for a period of two years within which period some of them may be required to pass confirmation test. Their retention in the service of the Local Government shall be subject to good behavior on their part and compliance with all the rules and regulation applicable in the Local Government Service. As rightly held by the trial court the appointments of the appellants enjoy statutory flavor and so their termination shall be governed by the provision of the Local Government (Staff) Regulations, 1960. As the termination of the appellants’ appointment is shown to be with effect from the 31st of August, 2004, it follows that the termination exercise was carried out while the appellants were still in the probationary phase. This is to say that the two year period of probation had not lapsed. By their letters of appointment their retention shall be subject to good behavior on their part and compliance with the rules and regulations applicable in the Local Government Service. This is to say that in the absence of their good behavior and compliance to the rules and regulations of the Local Government Service, their appointment shall be jeopardized.
In line with paragraph 8 of their amended statement of claim and evidence before the trial court, the appellants were not shown to have committed any act of misconduct or disloyalty to the respondent in the course of their employment. It will be pertinent at this point to determine if the appellants are established employees of the defendant or not. This is to say if their respective appointments were in compliance with the Unified Local Government Service (Staff) Regulations or not.
Now in paragraph 1 of the statement of defence the respondent averred clearly that:
“1. The defendant admits paragraphs 3 and 16 of the plaintiffs’ statement of claim.”
The said paragraphs 3 and 16 of the amended statement of claim which is the pleading upon which the appellants fought their case at the trial court read as follows:
“3. The plaintiffs aver that all the plaintiffs were appointed in accordance with the Local Government Service Commission Regulations. The plaintiffs shall found and rely on their letters of appointment dated 30/12/02 and other relevant documents, circulars, rules and regulations governing their employment.
16. The plaintiffs shall found and rely on posting instructions dated 20/05/02, nomination letters into task force duties dated 25/02/03, 03/03/03 and documents for opening of new salary accounts issued to some of the Plaintiffs by the Accountant to the Defendant dated 02/05/02, to show that the Plaintiffs were duly employed and recognized as bona fide members of staff of the Defendant.”
It is the provision of section 75 of the Evidence Act, 1990 that facts admitted need no further proof. See Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 152 at 171; Omeziri & Ors. v. Okoh & Anor. (2004) 13 NWLR (Pt. 890) 287; and Owosho v. Dada (1984) 7 S.C. 149. Aside from the admission of the respondent as shown above, the appellant still led evidence through their PW1 one Victoria Oluwasina to the effect that they were employed in compliance with the Local Government Service Regulation and that they were employed into different cadres and issued with letters of appointment. The letters of offer of appointment were admitted at the trial court and marked Exhibits B – B64 while the letters of appointment were admitted and marked Exhibits C-C146. As earlier noted the learned trial Judge found as a fact that the appellants’ employment enjoyed statutory flavor and which finding we leave undisturbed more so as there is no appeal against it. We are thus satisfied that the employment of the appellants was in conformity with the requirement of the Unified Local Government Service (Staff) Regulations. Appellants were thus established employees of the respondent.
As earlier stated the appellants’ appointments were terminated while they were less than two years in the service of the respondent. This is to say that it was during their probationary phase that their appointments were terminated. Placing reliance on the authority of IHEZUKWU v. UNIJOS (1990) 7 SCNJ 95 the appointment of the appellants could be terminated subject to the terms and condition contained in their letter of employment. The appellants were offered appointments into various cadres in the service of the respondent. For those who ab initio were appointed to cadres other than messengers, their Letters of Appointment as Established Employee state inter alia:
“……
Your appointment will be on probation for two years and during that period, you may be required to pass confirmation test. ……………”
For those on Grade level 01 step 1 their Letters of Appointment as contained in Exhibit C110-C145 state as follows:
“I am pleased to inform you, that following your success at the screening exercise for employment which the Local Government carried out recently, and in compliance with circular ref. No. LSSC.272 Vol. 11/33 of July, 2002 from the Local Government Service Commission you have been appointed as a Messenger on GL 01 step 1 with effect from 1st October, 2002.
Please note that your appointment will not be renewed until after two years, that is 1st October, 2004 and your retention in the service of the Local Government shall be subject to good behavior on your part and compliance with all rules and regulation applicable in the Local Government Service…… This letter of appointment supersedes any previous letter of appointment issued to you by this Local Government.
……………….”
See page 54 of the record.
From the foregoing it is clear that the appellants’ retention was subject to their good behavior and compliance with all rules and regulation applicable in the Local Government Service. In other words where the appellants’ are found not to be of good behavior or to have flouted any of the applicable rules and regulation then their appointment will be terminated. Exhibits A and D-D1 which are the letters conveying the termination of the appellants’ appointment read as shown hereunder:
“TERMINATION OF APPOINTMENT Following the reports of the various personnel audit exercises conducted in this Local Government, it has been observed that your appointment vide letter Ref. No. ……. of 2002 was irregular, as it did not conform to the Local Government Staff Regulations procedure.
I am therefore to inform you, based on the above premise, that your appointment has been terminated with effect from 31st August, 2004. This measure has become expedient in view of the stringent financial situation of the Local Government.
I am to express the Local Governments’ (sic) appreciation for your past services and best wishes for your future endeavours and to confirm that your outstanding salaries will be paid to you in September, 2004.
Sgnd. A. A. Ogunsola
Director of Personnel Management
For Chairman.”
From the foregoing, there is no way the purported irregularity of the appellants’ appointment letter with Ref. No….of 2002 and its non-conformity to the Local Government Staff Regulations procedure can be construed as a misconduct attributable to the appellants. Being established appointees on probation the appellants’ appointment ought not be terminated without due recourse to the provision of Regulation 31 of the Local Government Staff Regulations, 1960 contained at page 56 lines 22-23 and it reads inter alia:
“…. If the termination is not due to his misconduct the employee shall receive one calendar month’s notice or one month’s salary in lieu of notice.”
In the same vein and in providing for the form of Agreement reached between the appellants and the respondent, regulation 15 which is set out in the Fourth Schedule to the Local Government (Staff) Regulations, 1960 provides as follows:
“……. And this agreement may be terminated by either side at one full month’s notice in writing or by payment of one month’s salary in lieu of such notice in writing……..”
It is not in doubt that the appointment of the appellants was terminated in the absence of any known misconduct on their part. Nevertheless, Regulations 15 and 31 as set out above permit the respondent to terminate the appointment of its employee within the probationary period for any other reason outside misconduct provided the said employee is given one full month’s notice in writing or payment of one month’s salary in lieu of notice in writing. Much as the Local Government (Staff) Regulations supra has allowed the respondent to terminate the appointments of the appellants herein while still on probation the said Regulation enjoins it to give the said appellants one month’s notice in writing or in the alternative pay them one month’s salary in lieu of the notice. As rightly found by the learned trial Chief Judge, there has not been due compliance with the terms of agreement as to the length of Notice required to be given to the appellants or the payment of one month’s salary in lieu of the notice. The termination letters which were tendered as Exhibits A and D-D1 before the trial court show that they were dated 16th September, 2004 terminating the appellants’ appointment with effect from 31st August, 2004, Pursuant to the statutory provision governing the said employment the termination exercise which was with a retrospective effect ran contrary to the provision.
The court agrees with the findings of fact of the learned trial Chief Judge that the appellants were still on probation and as such their employment could be terminated at any time and for any reason provided they were given one month’s notice of the impending termination or one month’s salary in lieu of notice. As noted a while ago the letters issued to the appellants terminating their employment did not comply with the expressed provision of Regulation 31. The position of the law remains that:
“Employment with statutory backing must be terminated in the way and manner prescribed by that statute, and any other manner of termination inconsistent with the relevant statute is null and void and of no effect.”
See the cases of Ibama v. S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (pt. 954) 364, 391; Regd. Trustees P.P.F.N. v. Shogbola (2004) 11 NWLR (pt.883) 16; and U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 664.
In marrying the findings of the court and the position of the law just expressed above with the circumstances of this appeal, recourse is had to the applicable principle of law as enunciated in Emenite Ltd. v. Oleka (2005) 6 NWLR (Pt. 921) 350 at 358; and Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 at 318 wherein it was stated that:
“In ordinary relationship of master and servant, the court of law will not generally impose a servant upon a master. If the contract of employment is terminated wrongfully, all that is done is to award damages in lieu of notice as specified in the conditions of employment.”
The circumstances of the instant appeal are distinguishable from the case of Saliman v. Kwara Poly supra. In the appeal herein whereas there was an irregularity in the procedure or mode adopted in effecting the termination, in Saliman supra, the appellant therein was found to have been dismissed for want of fair hearing and non compliance with the laid down statutory procedure. The right of fair hearing which is constitutionally guaranteed attracts heinous consequences if breached as it touches on the root of any action. Unlike the instant appeal wherein the defect is on the surface in that the termination of the appellants’ employment was not conveyed to them in compliance with the laid down regulation i.e. the length of the notice required to be given to them failing which they will be entitled to a month’s salary in lieu. Again in Saliman supra the appellant’s appointment was duly confirmed and permanent contrary to the case of the instant appellants who were still on probation at the time their appointment was terminated.
It seems to me and I so hold that this is a mere procedural irregularity. The breach of a regulatory provision must be differentiated from the breach of a constitutional provision. I am satisfied that the appellants who were entitled to a one month’s notice had the notice issued to them retrospectively contrary to Regulation 31 supra and as such wrongful. For this wrong they are entitled in the alternative to one month’s salary in lieu of notice.
In the circumstances of the instant appeal, the appellants have prayed this court to set aside the judgment of the lower court. At the lower court they had prayed for:
“a. A DECLARATION that the omnibus letter of termination of appointment sent to the Plaintiffs severally terminating their appointment retrospectively from the employment of the Defendant is wrongful, illegal, oppressive and a gross violation of relevant rules governing their employment.
b. AN ORDER reinstating the plaintiffs to their different cadres of employment with the defendant with payment of all owed arrears of salaries up to the time of reinstatement.
ALTERNATIVELY
AN ORDER for payment of all outstanding salaries and allowances due to the plaintiffs.”
In spite of the findings of the learned trial Chief Judge he did not deem it right to award any of those claims. Although we hold as a matter of fact and law that the termination of the appellants’ appointment had a retrospective effect and as such non compliant to the statutory provision of the applicable Regulation, yet we do not all the same find it expedient to order a reinstatement of the appellants as prayed by them. This is because the Regulation governing their appointment had allowed for a termination of the appointment, provided they were given one month’s notice or one month’s salary in lieu of the notice. Where the contract of employment is, as in the circumstances of this appeal terminated wrongfully, the much that could be done is to award the payment of one month’s salary in lieu of the notice as specified in the conditions of employment. It is on the premises of this finding that an order for reinstatement is not an option. In the same vein the court cannot even go on to award payment of arrears of salaries and allowances, more so as there is indeed no evidence before the court on which to base the calculation.
The appellants in paragraph 7 of their amended statement of claim pleaded inter alia that sometime in December, 2002 new letters of appointment were circulated and issued demoting all of them from their various grade levels to grade level 01. Aside from the PW1 stating in her evidence at the trial court that they were employed into different cadres from GL 01 to GL 06 and that she was on Grade Level 06 when they received the letter demoting them to Grade Level 01 and that she the PW1 was paid N3,607 (three thousand six hundred and seven naira) per month; there was no evidence to show what the rest of the appellants numbering up to 177 were receiving per month. In the absence of pleading their entitlement by way of salaries as well as leave bonuses and proof thereof the court will end up speculating if it goes on to compute the purported arrears of salaries and leave bonuses being asked for by the appellants. It is trite that the court neither goes on a voyage of discovery nor does it engage in speculation, rather it depends on the materials placed before it in reaching its decisions. See ONAGORUWA v. ADENIJI (1993) 5 NWLR (Pt. 293) 317 at 346; and NNPC v. FEMFA OIL LTD. (2003) FWLR (pt. 155) 794 at 812.
It follows from all we have said above that the only payment due to the respective appellants is their one month’s salary in lieu of the one month’s notice which was given to them retrospectively and in violation of Regulation 31 of the Local Government (Staff) Regulations, 1960.
The appeal therefore succeeds in part and that is to the extent of the appellants being entitled to one month’s salary in lieu of the notice terminating their appointment retrospectively. Accordingly the respondent is ordered to pay forthwith to each of the appellants, one month’s salary in lieu of the one month’s notice issued to them in violation of Regulation 31 of the Local Government (Staff) Regulations, 1960.
Cost of this appeal is assessed at N60,000 in favour of the appellants jointly and against the respondent.
PRONOUNCEMENT: CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother K.M.O. Kekere-Ekun, JCA presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the judgment just delivered by me. He agrees that this appeal be allowed in part and also abide by all the consequential orders in the lead judgment.
ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, JOMBO-OFO, JCA. I agree with all the reasons and conclusions ably set out in the judgment of my learned brother. I adopt them as mine in allowing this appeal in part. I abide by all the consequential orders, including the order for costs.
Appearances
The 1st, 6th, 49th, 56th, 89th, 93rd, 94th, 105th, 112nd, 123rd, 126th, 144th, 156th and 166th appellant present
F. Omotosho Esq. with A. A. Ikujuni Esq.For Appellant
AND
No appearance for the respondent despite service of hearing notice on it on 14th January, 2013For Respondent
