MR. W. P. DEMSHEMINO V. COUNCIL FEDERAL POLYTECHNIC MUBI & ANOR
(2013)LCN/6467(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of January, 2013
CA/YL/4/2010
Before Their Lordships
SOTONYE DENTON WESTJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBAJustice of The Court of Appeal of Nigeria
Between
MR. W. P. DEMSHEMINOAppellant(s)
AND
1. COUNCIL, FEDERAL POLYTECHNIC MUBI
2. DR. MUSTAPHA MOHAMMED BARAU
(RECTOR FEDERAL POLYTECHNIC MUBI)Respondent(s)
RATIO
GROUNDS TO TERMINATE THE EMPLOYMENT OF THE CHIEF ACCOUNTANT OF A FEDERAL POLYTECHNIC
In other words before an employee of such calibre is removed from his office or his services dispensed with considering the fact that the security of his tenure is guaranteed statutorily, he must have fallen short of all or any of the conditions stipulated in subsection (3) (a), (b), (c) and (d) and any other interpretation given to this provision of the Polytechnic Act will not only do violence to the essence of that Law but will render nugatory the security of tenure of employees of that institution whose employment are statutorily flavoured. See Igwilo v. C. B. N. (2000) 9 NWLR (pt. 672) 302; Bamigboye v. Unilorin (1999) 10 NWLR (pt. 622) 290 Cases like Kato V. CBN; Iwuchukwu V. Nwizu (1994) 7 NWLR (pt. 357) 379 and so on.. PER WEST, J.C.A.
WHETHER OR NOT THE EMPLOYMENT OF THE CHIEF ACCOUNTANT OF A FEDERAL POLYTECHNIC CAN BE TERMINATED WITHOUT COMPLIANCE WITH SECTION 17(3) OF THE FEDERAAL POLYTECHNIC ACT 2004
In the locus classicus of Olaniyan & ors V. The University of Lagos and Another (1985) 1 A.N.R. at pages 369 to 466; Oputa, JSC with whom Obaseki, Eso, Aniagolu and Karibi-Whyle JJSC; concurred had had cause to illuminate the dark crevices of this intriguing aspect of our industrial relations law and in their Judgment settled all the issues which have cropped up here in this Appeal as for as the status of the Appellant, the nature of his contract, the law governing the relationship between the parties and whether the Respondent could terminate the appointment of the Appellant without recourse to section 17 (3) of the Federal Polytechnic Act, are concerned.
In that case Oputa, JSC; after agreeing that the law of master and servant and indeed the contract between them is subject to common law and statutory rules and that by and large a master can terminate the contract at any time for any reason or no reason of all, the learned Law Lord added a rider that if the master does so in a manner unwarranted by the particular contract under review, he must pay damages for breach.
In this regard, he identified three types of employment namely where the office is at the pleasure of the employer, where the employment covers the ordinary master and servant relationship governed by a written contract not subject to any statutory restrictions or limitations in which case the duty of the Court is to apply the terms, conditions and provisions of the contract as they appear without resort to any provision of statute regulating. The third type identified is, as in this case, where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which the servant can be removed or dismissed. According to the learned Emeritus Justice of the apex Court;” in such contracts is the servant is removed on grounds other than those specified in the contract or allowed by statute, his removal will be held to be unjustified or ultra vires null and void as the case may be: see Mc Chelland V. Northern Ireland General Health Service Board (1957) 1 WLR 549. He continued inter alia that:
“When the employing authority wants to remove its servant on grounds permitted by statute, then as Lord Campbell, C.J; observed in Exparte Ramsey (1952) 18 Q. B. 173 at p. 190, “the principles of eternal justice” will dictate that the servant cannot be unlawfully dismissed with first telling him what is alleged against him and hearing his defence or explanation. Even where the servant had personal knowledge of the offence or reason for his removal, that was held to be no substitute for hearing the officer’s explanation in Reg. V. Smith (1884) 5 Q. B. 614.” PER WEST, J.C.A.
ABUBAKAR ALKALI ABBA J.C.A. (Delivering the Leading Judgment):
INTRODUCTION BY THE APPELLANT:
This is an appeal against the Judgment of Hon. Justice S. M. Shuaibu of Federal High Court, sitting in Yola delivered on the 28th June, 2010.
The Plaintiff now Appellant has by originating summons dated 14th October, 2009 instituted an action against the Defendants now Respondents seeking the relief’s as contained in the records of proceedings.
The Respondents filed a counter affidavit to the originating summons and thereafter written addresses were filed and exchanged by counsel.
In a considered Judgment delivered on 28th of June 2010, the learned trial Judge dismissed the case of the Appellant with a cost of N10, 000.00. It is against the said Judgment that the Appellant herein has filed a Notice of Appeal dated 12th July, 2010 containing 5 grounds of appeal.
THE APPELLANT STATEMENT OF FACTS:
The Appellant was until 2/10/2009 a staff and Chief Accountant of Federal Polytechnic, Mubi when his appointment thereof was summarily terminated by the 1st Respondent vide a letter dated 2nd October, 2009 and signed by one P. U. Ndainamu, Deputy Registrar (establishment) on the grounds that his services “are no longer required”
Prior to this, the Appellant had joined the services of Federal Polytechnic, Mubi on 12/3/1991 as Senior Accountant and had enjoyed a robust lease of life as a staff culminating in the last promotion as Chief Accountant on 14/12/2005.
The Affidavit evidence is also to the effect that the Appellant was on 2/7/2009 requested vide Exhibit D to appear before a committee termed “ad-hoc committee on illegal photocopying of payment voucher” which he did. He was again written on 13/7/2009 to make written representation to the said committee; a request that the Appellant dutifully complied with, see Exhibit F. thereafter the Appellant did not hear anything again until he was served with a letter dated 2/10/2009 terminating his appointment. It is instructive to note that the Appellant being a public servant by virtue of the Federal Polytechnic Act enjoys a pensionable employment and would have been due for retirement on 19/4/2016 when he would be 60 years old but for the summary termination of his appointment by the 1st Respondent.
It is also not a disputed fact that as at the time of the termination of the appointment of the Appellant, the Appellant was on a monthly salary of N197, 366.06 and would have if not for the termination earned a total of N15, 394,55.268 as salary by 19/4/2016 assuming the Appellant earns the said N197,366.06 continuously for the said period.
APPELLANT ISSUES FOR DETERMINATION:
1. Whether the Respondents can lawfully terminate the employment of the Appellant as the Chief Accountant of Federal Polytechnic, Mubi without complying with the provisions of Section 17 (3) of the Federal Polytechnic Act, 2004 when the Respondent stated that the Appellants services are no longer required relying on provisions of clauses 2 (e) and (f) of the letter of appointment of the Appellant. Not (1) Section 17(3) Federal Polytechnic Act, 2004 not applicable. (2) Clauses 2(e) and (f) of his letter of appointment.
2. Whether the learned trial judge was right when he held that the Federal Polytechnic Act which stipulated condition under which the Respondent can lawfully terminate the employment of the Appellant cannot be read into the provisions of the letter of appointment of the Appellant or.
Whether the provisions of the letter of appointment of the Appellant supersedes the provisions of Section 17 (3) of the Federal Polytechnic Act relating to the circumstances under which the Respondents can lawfully terminate the employment of the Appellant.
3. Whether in the circumstances of this case, the learned trial judge was right to have applied the principle of law in Katto V. Central Bank of Nigeria in support of his decision while refusing to apply the principle in Igwilo V. Central Bank of Nigeria.
4. Whether it was proper for the judge to have failed to make an award of damages in the alternative despite having held that the termination of the appointment of the Appellant was lawful. No damages accrue between 2/10/2005 to 2016 as computed.
The letter of appointment and provision of Section 17(3) of Act are parallel and issue of one superseding the other does not arise.
As of 2nd October, 2009 when Appellant was appointed the Chief Accountant does not exist as it is enacted in 2004 not before or in, 2009 5 years letter.
Promotion to Chief Accountant in 14/12/2005 no relevant to the Act later.
APPELLANT ARGUMENT/SUBMISSION:
ISSUE 1
Whether the Respondents can lawfully terminate the employment of the Appellant as the Chief Accountant of Federal Polytechnic, Mubi without complying with the provisions of Section 17 (3) of the Federal Polytechnic Act, 2004 when the Respondent stated that the Appellants services are no longer required relying on provisions of clauses 2 (e) and (f) of the letter of appointment of the Appellant. The Federal Polytechnic, Mubi is an institution created by statute i.e. Federal Polytechnic Act, 2004 Chap. F17 laws of the Federation of Nigeria. Being an institution created by statute, its operation is thus to be governed by statute. It is axiomatic to state that the Appellant’s appointment is one of those governments by the said statute. See Section 13(2) of the Act. Sections 17 of the said Act regulate the tenure and /or discipline of the Academic, administrative or technical staff while Section 19 deals with discipline of the Junior Staff.
Section 17(3) of the Act provides “for good cause any member of staff maybe suspended from office or his appointment may be terminated by council, and for the purpose of this subsection, “good cause” means:- (a) (b) (c) “Conduct of a scandalous or other disgraceful nature which the council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and condition of his office”. It is thus crystals clear from a careful perusal of Section 17(3) of the Act that the Respondents have the power to terminate the employment of a Senior Staff, provided it is for a good cause. The Act also defines what that good cause means.
It is not disputed by the Respondents that in terminating the appointment of the Appellant, that the Respondents had recourse to the provision of Section 17 (3) of the Act.
The learned trial Judge in dealing with the issue of non compliance by the Respondents with the provisions of Section 17 (3) of the Act was of the view that:-
“The Plaintiff therefore cannot in any way read into Exhibit G. i.e. the letter terminating the appointment of the Plaintiff acts of misconduct, physical or mental disability or inability to perform the function of his office so as to bring it within the scope and purview of the provision of Section 17(1) and 3 of the Federal Polytechnic Act, laws of the Federation of Nigeria, 2004”
In doing so the trial Judge relied on the case of Katto V. CBN 200 (1995) SCNJ. 1.
We submit with profound respect to the learned trial Judge, that he grossly misunderstood the case of the Appellant and therefore came to a wrong conclusion in law.
The Appellant’s case at the trial court is to the effect that the Respondents can only terminate the Appellants appointment by either of 2 ways as provided in Section 17 (1) and Section 17(3) of the Act. Under Section 17(1) of the Act, the grounds for termination has to be for gross misconduct and under Section 17 (3) of the act it has to be for a good cause shown. The Appellants case at the trial court also is that termination on the grounds that services are no longer required cannot be grounded under Section 17 (3) of the Act. This is so in that Section 17(3) of the Act clearly in unambiguous terms stated that termination can only be for a good cause.
It is further the case of the Appellant that in so for as clauses 2 (e) and (f) of the letter of appointment of the Appellant is in conflict with Section 17 (3) of the Act, that the said clauses are to the extent of their inconsistency null and void.
The learned trial Judge however relied on the case of Katto V. CBN (1999) 5 SCNJ I to hold that the Respondents can lawfully terminate the Appellant’s appointment as they did under clause 2 (e) and (f) are not in conflict with Section 17(3) of the Federal Polytechnic Act, 2004. We submit however with due respect that the case of Katto V. CBN (supra) is not on all fours with the case on appeal. In the case of Katto Vs. CBN (supra) it was only the staff manual that called for interpretation before the court. In this case however both the letter of appointment and the provisions of the statute regulating the activities of the Federal Polytechnic, Mubi called for interpretation. These issues are radically different and thus the ratio in that case, we submit can not apply in this case.
This life issue therefore in this appeal is whether in terminating the employment of the Appellant, the Respondents are entitled to have recourse only to the Plaintiffs letter of appointment particularly clause 2(e) and (f) while ignoring Section 17(3) of the Federal Polytechnic Act.
We submit that the trial Judge in his Judgment failed to advert his mind to the authorities cited by learned counsel to the Appellant and therefore failed to advert his mind to the ratio in those cases. Thus in Olaniyan V. University of Lagos (1985) 2 NWLR Part 9 page 599, Oputa JSC (as he then was) had this to say at paragraph H:-
“there maybe cases where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which it can remove or dismiss him, in such contracts, if the servant is removed on grounds other than those specified in the contract or allowed by statue, his removal will be held to be unjustified or ultra vires null and void”.
We submit further that in so far as the issue relates to whether the Appellants contract of employment is governed by both statute and contract of employment, the Appellants case and the case of Olaniyan V. University of Lagos (supra) are quite similar. Thus, the ratio in that case applies with equal force to his case. On this we shall refer to ratios 14, 15 and 28 thereof. Thus it is submitted that Appellant being a Senior Staff whose service is governed by Section 17 (3) of the said Act, his appointment can only be terminated by the Respondents showing good cause. In other words the Respondents cannot hide under the phase “your service are no longer required” to terminate the appointment of Appellant as that is outside the contemplation of the Act. We submit further that in so far as clause 2 (e) and (f) of the letter of appointment of the Appellant provided safe heaven for the Respondents to circumvent the provisions of clause 17 (3) of the Act, clauses 2 (e) and (f) are to the extent of their inconsistency null and void and ultra vires the powers of the Respondent. For emphasis ratio 28 in Olaniyan V. University of Lagos (supra) states “whereas at common law a contract of personal service is determinable by the master at will without cause, a contract of service is determinable by the master only upon reasonable notice or on the notice stipulated in the contract of the parties where; a contract is based upon or re-enforced by statute or created by statue a strict compliance with the statutory requirement is necessary for its determination”.
It is submitted that the right to determine the employment of the Appellant guaranteed the Respondents by clause 2 (e) and (f) of the letter of appointment of the Appellant is circumscribed and limited by Section 17 (3) of the Federal Polytechnic Act, 2004. See further the case of O. A. Adeyemi Adeniyi V. Governing Council of Yaba College of Technology (1993) NWLR (part 300) page 427 ratios 10 and 11 thereof and we quote same with all due respect.
Ratio 10 “the General principle is that where the contract of service is protected by statute, and the removal of a person is predicated upon compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void”.
Ratio 11 “it is important to observe the difference in statutes between contracts of personal service and contracts of service which enjoy statutory protection. The latter can only be terminated in the manner prescribed by the governing statutory provision. A breach of the enabling statutory provision cannot result in unilateral repudiation; it effects no changes in the contractual relationship of the parties. The Act is ultra vires and void, the contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision”.
It is thus clear from the above that is was wrong for the trial Judge to have relied on the provision of the clause 2 (e) and (f) in the letter of appointment of the Appellant in clear opposition to the mandatory requirements of Section 17 (3) of the Act that require termination to be for good cause. This court is called upon to allow the appeal on this issue.
ISSUE 2:
Whether the learned trial judge was right when he held that the Federal Polytechnic Act, 1990 which stipulated conditions under which the Respondents can carefully terminate the employment of the Appellant cannot be read into the provisions of the letter of appointment of the Appellant.
It is to be reinstated that while clause 2 (e) of the letter of appointment of the Appellant gives the Respondent the right to determine the employment of officers below grade level 13 by one months notice, clause 2 (f) gives the Respondent the right to terminate an officers appointment provided it will not be due to misconduct.
However, under Section 17 (3) of the Federal Polytechnic Act, 2004 the Respondent can only terminate for good cause. What amounted to good cause has been defined in Section (3) (a) (b) (c).
Thus, while the letter of appointment seems to have given the Respondent unfettered power to determine the appointment of the Appellant at will by means of termination. The Federal Polytechnic Act stipulated that such power to terminate can only be exercised by the Respondent for good cause as defined in the Act. The trial Judge in interpreting these two provisions was of the view that there was no conflict between the two provisions. He rationalized his reasoning by stating in page (153) of the record of proceedings that the Respondent did not attribute the termination of the appointment of the Appellant to any wrong-doing or misconduct but that the services of the Appellant “are no longer required”. And that the Appellant Counsel was reading into Exhibit G. i.e. the letter of termination acts of misconduct e.t.c. so as to bring it into conformity with Section 17 (3) of the Act. He relied on Katto V. CBN supra
We submit further that the learned trial Judge misconstrued the argument of the Appellants Counsel on the insistence that exhibit G must conform with the requirements of section 17 (3) (a) (b) (c) of the act for it to be effective. It is submitted that under section 17 (3) (a) (b) (c) that the Respondent can terminate only for good cause as defined therein. That is to say that the Respondent must give reasons within the meaning of Section 17 (3) a, b, c of the Act for terminating the appointment of the Appellant. The Appellant had argued at the Court below and before this Court that the termination of the Appellants appointment on the ground that his “services were no longer required” is not part of the good cause as defined in Section 17(3) a, b, c of the Act. Thus the case of Olaniyan V. University of Lagos supra, rather than the case of Katto V. CBN supra applies in this case. See further the case of Oluruntoba – Oju V. Abdul-Raheem (2009) All FWLR (part 497) 1.
Thus, it is our submission that the Respondent can only terminate the services of the Appellant by complying strictly with provision of Section 17(3) a, b, c of the Act. We further submit that in so far as the Respondent purported to have terminated the appointment of the Appellant on the grounds that his services were no longer required, the purported termination is ultra vires the powers of the Respondent under Section 17(3) a, b, c of the Act. It is our further submission that clause 2 (e), (f) of the letter of appointment of the Appellant is in gross conflict with the provisions of Section 17(3) a, b, c of the Act and is to the extent of its inconsistency null and void and of no effect whatsoever. This Court is urged on this ground to allow this appeal.
ISSUE 3:
Whether in the circumstances of this case, the learned trial judge was right to have applied the principle of law in Katto Vs. CBN supra in support of his decision while refusing to apply the principle in Igwilo vs. CBN supra.
It is noted that in dismissing the Appellants case challenging the unlawfully termination of his employment by the Respondent. The trial Judge relied on the case of Katto V. CBN supra.
In that case the Supreme Court upheld the termination of appointment of a staff whose letter of termination simply stated that his services were no longer required. This was based on the staff manual that was called for interpretation. In the case of Igwilo V. CBN(supra) it was another case of termination but in this case, it was a case of misconduct which was found to be unfounded. The staff in question was of a pensionable cadre and his employment was clothed with statutory flavor. However, the Court of Appeal relying on the principle in Olaniyan V. University of Lagos (1985) 2 NWLR (part 9) was of the view that:-
“In public employment, where the employment is qualified by appointment to a permanent and pensionable position and has actually satisfied the conditions, there should in the interest of Justice be a presumption that the employment cannot be terminated only for misconduct or the specified reasons”.
It is submitted that the facts of the case on appeal is almost on all fours with the case of Olaniyan Vs. University of Lagos supra. In this case as in Olaniyan’s case, both the status setting up the institution and the “memorandum of appointments” and the letter of appointment (exhibit G) of the Appellant called for construction and interpretation in Olaniyan’s case, the Supreme Court held that the provisions of the statute override the provisions of “memorandum of appointment”.
In Katto Vs. CBN, only the construction of the staff manual was called in to question and therefore the issue of whether faced between the provisions of a staff manual and the statute creating the institution, the court could have acted otherwise never arose.
It is submitted however that in the present case, the letter appointment of the Appellant was in conflict with the mandatory provisions of Section 17(3) of the Act that required that termination of appointment of staff of the status of the Appellant must be for a good cause.
This accords with the reasoning in the case of Igwilo V. CBN supra and the case of Olaniyan V. University of Lagos supra. It is thus our submission that the learned trial Judge was wrong to have applied the principle in Kalto V. CBN while refusing to apply the principle Igwilo Vs. CBN supra and that if the learned trail Judge had adverted his mind properly to the law and the cases cited, he would have acted otherwise. The court is called upon this ground to allow the appeal.
It is our further submission that even if it is held that though the termination is wrongful but that the order of reinstatement cannot be made in the circumstances; this court is called upon in the alternative to award the damages as claim as same was never contradicted by affidavit undone and therefore remained unchallenged and under Section 15 of the Appeal Court Act, this court can make the award of damages as if it were the court of trial.
ISSUE 4:
Whether it was proper for the Judge to have failed to make an award of damages in the alternative despite having held that the termination of the appointment of the Appellant was lawful.
The Appellant claimed in the originating summons an alternative relief of the sum of N15, 394.68 for wrongful termination of his employment.
In the affidavit in support of his originating summons the Appellant averred that he was born on 20/6/1956 and would have been 60 years old by 2016 when by virtue of the civil service rules, the Appellant is expected to retire. He equally averred that about the time of the termination of his employment, he was earning N197, 366.06 per month and would have earned N15,394.552.68 by 2016 but for the premature enforcement.
We submit that it is trite law that the measure of damages for any termination of employment is what the party would have earned as salary but for the premature termination of employment. It is not in dispute that the Appellant employment is governed by statute i.e. Federal Polytechnic Act, 2004 and is therefore pensionable.
The trial Judge in his Judgment failed to make pronouncement on the submission of Counsel to the Appellant with respect to the award of damages.
The Appellant Counsel had cited the cases of Igwilo V. CBN supra ratio 3 and the case Nwagbare V. N.P.P.B (1986) 3 NWLR part 29 page 489 ratio 4 therefore at page 490.
It is our submission that this court is in position to review the affidavit evidence and make the award of damages in the alternative which the trial Judge inadvertently failed to avert his mind to.
INTRODUCTION OF THE RESPONDENTS:
This is an appeal by the Plaintiff/Appellant against the Judgment of Hon. Justice S. M. Shuaibu of the Federal High Court Holden in Yola delivered on the 28th June, 2010. On the 12th day of July, 2010 the Appellant filed five grounds of appeal against the said Judgment.
The suit was filed on the 14th October, 2009 by way of originating summons seeking the reliefs as could be seen at pages 5 – 6 of the Record of Appeal (hereinafter called “the Record”). The affidavit in support of the originating summons is at pages 7 – 9 of the record.
The Defendants (Respondents) entered appearance on 22nd October, 2009 to the suit and filed a joint counter affidavit to the originating summons on 23rd October, 2009. The joint counter-affidavit is at pages 44-45 of the record. Written addresses were filed and exchanged upon the order of court with the consent of both counsel.
The learned trial Judge delivered Judgment on 28th June, 2010 dismissing the Appellant’s case (see pages 122-161) of the record). It is against the Judgment that the Appellant has filed this appeal.
THE RESPONDENTS STATEMENT OF FACTS:
The Appellant was employed by the 1st Respondent on 13th March, 1991 as a Senior Accountant Vide EXHIBIT “A” which is the letter of appointment. The appointment was confirmed on 13th April, 1993 Vide EXHIBIT “B”, the Appellant was subsequently promoted to the post of Chief Accountant. He was on this post up to 2nd October, 2009 when his appointment was terminated vide EXHIBIT “G”.
The Appellant was invited vide EXHIBIT “B” to appear before an ad-hoc committee on illegal photocopying of payment voucher. The Appellant did so. He was later requested to make written representation to the said committee which he did. The Respondents later terminated the appointment of the Plaintiff on the ground that his services were no longer required. The termination was not based on any accusation of misconduct or wrong doing. It was in the light of the foregoing that the Appellant instituted the action before the lower court as per its originating summons supported by a 17 paragraph affidavit with Exhibits attached. The Respondents also filed a 9 paragraph affidavit with exhibits. See page 7-17 of the record for the Appellant’s affidavit and pages 44-45 for the Respondents’ affidavit.
The learned trial Judge held that the Appellant’s appointment was lawfully and validly terminated in accordance with his letter of appointment (Exhibit ‘A’) and for that reason the Appellant’s case was dismissed by the lower court, Correctly Dismissed.
RESPONDENTS ISSUES FOR DETERMINATION:
This issues for determination in this appeal are as follows:
1. Whether the learned trial judge was right when he held that the Appellant’s appointment was lawfully terminated by the Respondents on the ground that his services were no longer required in accordance with his letter of appointment (Exhibit “A”) for which reason Section 17(3) of the Federal Polytechnic Act, 2004 cannot be read into the termination letter? (From Grounds 1, 2 & 5).
2. Whether the learned trial judge was right to rely on the case of Katto V. CBN (1999) 5 SCNJ 1 in support of his decision in this case? (Distilled from Ground 3).
3. Whether the learned trial judge erred in law by not considering the issue of damages as an alternative to the relief of reinstatement claimed by the Appellant? (Distilled from Ground 4).
RESPONDENT ARGUMENT/SUBMISSIONS:
ISSUE 1:
This issue which is covered by Grounds 1, 2 and 5 of the grounds of Appeal raises the question whether the learned trial Judge was right when he held that the Appellant’s appointment was lawfully terminated by the Respondents on the ground that his services were no longer required in accordance with his letter of appointment (Exhibit “A”) for which reason Section 17(3) of the Federal Polytechnic Act, 2004 cannot be read into the termination letter? (from grounds 1, 2 and 5).
It is submitted that the learned trial Judge was right when he held that the Appellant’s appointment was lawfully terminated by the Respondents on the ground that his services were no longer required in accordance with his letter of appointment (EXHIBIT “A”) and for that reason Section 17(3) of the Federal Polytechnic Act cannot be read into the letter terminating the Appellant’s appointment. This is because from the evidence before the trial court and the findings of fact of the learned trial Judge, the terms and conditions governing the termination of the Appellant’s employment where contained only in clause 2 (e) and (f) of Exhibit “A” i.e. the letter of appointment of the Appellant and not in Section 17 of the Federal Polytechnic Act. See pages 153 – 155 of the record.
Indeed, the learned trial Judge after reviewing the affidavit evidence, the exhibits annexed thereto, and the submissions of Counsel for both parties made the following findings of fact, namely:
a. That the letter terminating the appointment of the Plaintiff is Exhibit “G” to the originating summons and that the appointment was terminated on the ground that his services are no longer require. That Exhibit “G” did not allege any act of misconduct, physical or mental disability or incapacity of the Plaintiff to perform the functions of his office. (See pages 150 – 151 of the record).
b. That the letter of offer of appointment of the Plaintiff i.e. Exhibit “A” to the originating summons, contains the terms and conditions of the appointment and that clause 2 (e) and (f) of the terms and conditions are relevant for the resolution of the issue posed by this case. See page 151 of the record.
c. That the terms and conditions relating to the termination of the employment to which the Appellant had accepted to be bound were specifically set out in clause 2 (e) and (f) of Exhibit “A” and that the rights or procedure prescribed in clause 2 (e) and (f) are rights exercisable by both the Plaintiff (Appellant) and the 1st Respondent as contracting parties. (See page 153 of the record).
d. That there is no procedure laid down by the Federal Polytechnic Act, 2004 for the termination of the appointment of a member of staff whose his services are no longer required. (See page 157 of the record).
e. That the Respondents fully complied with the requirements of clause 2 (e) and (f) of Exhibit “A” the letter of appointment of the Plaintiff in terminating his appointment. (See page 160 of the record).
f. That the Appellant failed to discharge the burden of proving the terms of the agreement breached in this case. (See pages 160 -161 of the record).
It was on the basis of these findings of fact that the learned trial Judge, relying on the Supreme Court decision of Katto V. Central Bank of Nigeria (1999) 5 SCNJ 1 held, that the Appellant’s appointment was lawfully terminated on the ground that his services were no longer required in accordance with the provisions of clause 2 (e) and (f) of the letter of appointment i.e. Exhibit “A” and for that reason the Plaintiff cannot read into Exhibit “G” (i.e. the letter terminating the appointment of the Plaintiff) acts of misconduct, physical or mental disability or inability to perform the functions of his office so as to bring it within the scope and purview of the provisions of Section 17 (1) and (3) of the Federal Polytechnic Act, Laws of the Federation of Nigeria, 2004. See pages 153 – 155 of the record.
It is submitted with due respect that as could be seen from the above findings of fact the employment of the Appellant was governed by only agreement of the parties (i.e., Exhibit “A”) and not by any section of the Federal Polytechnic Act, and that the termination of his appointment was in full compliance with the terms of this agreement. Consequently, the termination of the Appellant’s appointment on the basis of his contract of service by the 1st Respondent cannot be said to be unlawful. See UBN V. Ogboh (1995) 2 NWLR (Pt. 389) 649 at 664; Ibama V. Shell Petroleum Development Coy. of Nigeria Ltd. (2005) 10 SCNJ 12 at 25 paras. 35-5.
Moreover, as a matter of law, the Appellant has the burden of proving that his employment was unlawfully terminated by the 1st Respondent and to achieve that the relevant findings of fact by the trial court in relation to the reliefs he sought must be in his favour. Once the findings of fact are against him as in this case the learned trial Judge was right to refuse all the reliefs sought by him. According to the Supreme Court in the case of Archibong & 6 Ors. V. Ita & 5 Ors. (2004) 1 SCNJ 141 at 161 para 10 per Niki Tobi JSC in the lead Judgment:-
“As a matter of law, the Plaintiff has the onus of proving his case and where he fails to get the appropriate findings relevant to the reliefs he had sought, he must fail”.
Again, it is pertinent to note that Appellant has not appealed against the decisive and conclusive findings of fact in this case meaning that the findings of fact of the trial court against the Appellant thus remain unassailed. See Olaniyan V. University of Lagos & Anor. (1985) All NLR 365 at 37, per Oputa JSC. The totality of the findings is to the effect that the contract of service in dispute was governed by the agreement of the parties i.e. Exhibit “A” and not any section of the Federal Polytechnic Act and in terminating the contract there was no breach of any terms thereof.
ISSUE 2:
Whether the learned trial Judge was right to rely on the case of Katto V. CBN (1999) 5 SCNJ 1 in support of his decision in this case. (from ground 3).
The learned trial Judge was right to rely on the case of Katto V. CBN (supra) and not the case of Igwillo V. CBN (2007) 5 SCNJ 52 as a basis for his decision in this case. This is because the circumstances in the case of Katto are similar to the circumstances of the present case. In Katto’s case the termination letter simply stated that his services were no longer required. No misconduct was alleged. The Appellant was advised to collect his one month’s salary in lieu of notice as provided for in clause 2 of staff manual being his contract of service with the CBN. In the same manner, in this case termination letter is also simply saying that the Appellant’s services are no longer required. No misconduct was alleged. The Bursar was advised to pay the Appellant three month’s salary in lieu of notice as provided in clause 2 (e) and (f) of Exhibit “G” being his contract of service with the Federal Polytechnic Mubi.
Therefore, the termination letter in the case of Katto did not state any reason for terminating the appointment but the Supreme Court held the termination valid.
Now in the case of Igwillo V. CBN (supra) the termination letter also simply stated that the Respondent’s services were no longer required. But in this Igwillo’s case there was allegation of misconduct against the Respondent. The Respondent was accused in connection with N680,000.00 for purchase of books. A panel was set up which investigated Igwillo and cleared him of the accusation. But a termination letter was eventually written to the Respondent which simply said that the Respondent’s appointment was terminated on the ground that his services were no longer required and no misconduct was alleged.
But Igwillo insisted that even though his termination letter did not state any misconduct as the basis of his termination, that he was actually terminated on the unproven allegation of misconduct connecting with the N684, 000.00 for purchase of books. He produced evidence outside the termination letter to that effect and the trial Judge made a findings of fact to that effect in his favour.
This is to say that what was in issue in Igwillo’s case was whether the trial Judge was right to look outside the termination letter to hold that Igwillo was not lawfully removed from office. This is how the Supreme Court put the issue in perspective:-
“The facts of this case, as summarized above, seem not to be disputed by the parties. What is in dispute is whether the court below was right in taking into consideration other evidence led by the Respondent to show that the motives behind the termination of his appointment were in fact based on the unsigned anonymous petition written against him and whether the court below was right in ordering the Respondent’s reinstatement” See (2007) 5 SCNJ 52 at 66 para. 15.
The Court of Appeal also found that as a fact. On this the Supreme Court said per Ogbuagu JSC at page 80:-
“I have already noted that the two lower courts found as a fact that from the facts before the trial court, the reason or reasons for the termination cannot or could not be divorced from the allegation of N680,000.00 (six hundred and eighty thousand naira) for the purchase of books for the 1st Appellant’s Library. As I noted and now hold the Appellants have not appealed against this weighty finding by the two lower courts” See (207) 5 SCNJ 52 at 80 para. 5.
It is respectfully submitted that if Igwillo had not pleaded and adduced evidence of misconduct as the motivation for his termination of appointment the courts would not have interfered with the termination just on the ground that the termination letter simply stated that his services were no longer required without showing cause for the termination.
We humbly urge this Honourable Court to dismiss this appeal on this issue.
ISSUE 3:
Whether the learned trial judge erred in law by not considering the issue of damages as an alternative to the relief of reinstatement claimed by the Appellant?
(Distilled from Ground 4).
The learned trial Judge did not err in law when he did not consider the issue of damages as an alternative to the relief of reinstatement claimed by the Appellant. This is because only two issues were submitted for the consideration of the learned trial Judge by the Appellant in this case. See page 90 of the record.
These two issues were also a replica reproduction of the two questions submitted by the Appellant for determination in his originating summons. See pages 4 and 5 of the record. It is these two issues that the learned trial Judge considered, no more, no less. There was no issue of damages. See pages 132 and 133 of the record.
It is further submitted that the question of the sum of N15, 396,552.68 for wrongful termination was only addressed under the 2nd issue of the Appellant at the trial and once that issue was disposed of against the Appellant the question of damages became irrelevant. Consequently, the contention of the Appellant that the trial Judge in his Judgment failed to make pronouncement on the submission of counsel to the Appellant with respect to the award of damages becomes of no moment.
Moreover, since there was no finding in favour of the Appellant for the grant of reinstatement, there was no basis for the consideration of the question of damages as an alternative to reinstatement. This is because in our employment law it is only when there is a finding that an employee’s employment has statutory flavor and there is a breach of the statutory terms entitling the employee to a relief of reinstatement but for certain supervening events or legal grounds the reinstatement cannot be granted, that the court will now consider the award of damages as an alternative: see the case of Samuel Igbe V. Governor of Bendel State (1983) 2 S.C. 114, Osakwe V. Nigerian Paper Mill Ltd. (1998) 7 SCNJ 222 at 231 – 232 paras. 40-5, Imoloame V. WAEC (1992) 9 NWLR (pt. 265) 303 at 319A.
Again, the Appellant sought for seven reliefs in the originating summons. The alternative relief of payment of N15, 394,552.68 was only one of them. The claim of the Appellant at the trial failed in toto. The termination was not declared wrongful. Consequently, the issue of considering any kind of relief could not arise. Even the learned Counsel to the Appellant appeared to understand that a consideration of the question of reinstatement was contingent upon the termination being first declared wrongful. This is borne out from his submission at page 14 of the Appellant’s Brief as follows:
“It is our submission that even if it is held that though the termination is wrongful but that the order of reinstatement cannot be made in the circumstances; this court is called upon in the alternative to award the damages as claim…”
As can be seen, the termination was not declared wrongful; so how could the trial court consider or award damages as an alternative to the relief of reinstatement?
Consequently, it is respectfully submitted that Appellant’s counsel invitation to this Honourable Court to review the affidavit evidence and make the award of damages in the alternative which according to him the trial Judge inadvertently failed to advert his mind to, is not an invitation this Honourable Court should attend to as such need does not arise in this appeal.
This Honourable Court is humbly urged to dismiss this appeal on this issue.
RESOLUTION OF ISSUES:
Having reproduced the brief adopted by each side, we now discuss the 4 issues formulated by Appellant in his 5 grounds of Appeal on which the 4 issues are claimed to be distilled.
The Respondents in their brief formulated 3 issues which to my mind covered the 5 grounds of appeal as well as the 4 issues formulated on these 5 grounds by Appellant.
I adopt the 2 Respondents 3 issues in resolving this appeal. I prefer the 2nd Respondents 3 issues to the Appellants 4 issues for the following reasons:-
1. All the Appellants 4 issues are well covered in the 3 issues of the 2 Respondents.
2. All the Appellants 5 ground of the appeal are one by one covered in the 3 issues raised by the 2 Respondents, but Appellant did not state the grounds one by one in his 5 issues.
3. The 1st issue of 2 Respondents (cover grounds 1, 2 and 5) while 2nd issue is distilled from ground 3 and the 3rd issue of the 2 Respondent is distilled from ground 4 of the Appellant grounds of appeal contained in his appeal dated and filed on 12th July, 2010. Judgment of trial court was 28th/6/2010.
4. The last but not the least reason for my preferring the 3 issues of the 2 respondents to the 4 issues formulated by the Appellant is because (1) Respondent 2 issues are very clear, very short and to the point while the Appellants 4 issues appear to me to be vague and or not precise to the point. Resolution of the 3 issues of the 2 Respondents (1) issue I.
Etim Akpon holding brief of T.S. Ibenga for the Respondent adopted the Respondent joint brief dated and filed on 3/8/2012.
ON ISSUE 1. The 2 Respondents Counsel Barrister T.S. Ibanga submitted that the learned trial Judge was right when he held that the Appellants appointment was LAWFULLY TERMINATED by the 2 Respondents on the ground that his services were no longer required accordance with his letter of appointment (Exhibit A) for which reason section 17(3) of the Federal Polytechnic Act, 2004 cannot be read in to both. Exhibit A (Appointment letter as well as into the Appellants TERMINATION LETTER dated 2nd October, 2009. Exhibit “A” – Appointment letter was dated 13th March, 1991 as Senior Accountant. By letter of 13th April, 1993 Respondent confirm the appointment.
Appellant was promoted to the post of Chief Accountant and on 2nd October, 2009. His appointment was terminated by this letter is Exhibit “G”.
So Appellant was in this Exhibit “A” given are his conditions of service and by Exhibit “G” termination letter was given the reasons for termination i.e. his service were no longer required.
We are in total agreement with the holding of the trial Judge;
1. That Appellant was lawfully terminated.
2. That section 17(3) of the Federal Polytechnic Act, 2004 is not applicable.
3. That only letter of Appellant’s appointment (Exhibit A) and Appellants letter of termination (Exhibit G) are applicable not section 17(3) Federal Polytechnic Act, 2004.
We do not agree with the Appellants Counsel that this Section 17(3) is either relevant or applicable to Appellants appointment and termination. We do not think that the issue of whether Section 17(3) of these Act, supersede Exhibit A and Exhibit B, is a valid question.
This is because both Exhibit “A” and Exhibit “G” are letters of appointment and terminations and not Acts of the National Assembly.
We agree with Ibanga and the trial Judge finding and holding that Appellant was rightly and lawfully terminated.
We have no reason to temper with this decision discussing Appellants claim. We find and hold that Appellant ground (1) ground (2) and ground (5) totally failed and are dismissed. We resolve issue one (1) in favour of the 2 Respondents against Appellant.
The trial Judge as well as Barrister Abanga rightly relied on the following cases.
1. Archibong & 6 Others V. Ita & 5 Others (2004) 1 SCN, J141 at 161 para. 10 per Niki Tobi JSC and case of
2. Olayiyan V. University of Lagos & Another (1995) All NLR 365 at37 per Oputa JSC.
In these two cases the Apex Justices held that the contract of service in dispute was governed by the agreement of the parties i.e. Exhibit A. and not any Act, 2004 Section 17(3).
There was no breach of any terms of the contract in Exhibit “A” by the termination Exhibit “G”.
We now go to ISSUE 2, of the 2 Respondents which cover ground 3 of the notice and grounds of appeal of the Appellant which reads:-
Whether the learned trial Judge was right to rely on the case of Katto V. CBN (1999) 5 SCN 1 in support of his decision.
We answer this question positively. We agree with both trial Judge and Barrister Ibanga for 2 Respondent as the reasons and arguments in Katto not Igwillo vs. CBN (1997)5 SCN J. Page 52 are similar circumstance is with Katto case not Igwillo.
We agree with all the reasons and argument of Counsel for Respondent and we uphold the finding and holding of the trial Judge Hon. Justice S. M. Shuaibu.
We resolve this issue II in favour of the 2 Respondent against Appellant.
Like issue 1 this issue II has to be for dismissal of this Appeal.
We dismiss ground 3 and this appeal in its entirety, because appeal has no merit at all.
Appellant failed to prove his claim.
ISSUE 4.This is distilled from ground 4 and like issue 2 the trial Judge rightly refused “damages” as both reinstated to his post of Chief Accountant by the Respondents. Means that the termination is wrong or illegal were of the view that the termination is right and lawful and trial Judge was right and correct and we affirm his decision.
We never at our conference dealt with the effect of reading section 17(3) of the Act in to the appointment and termination letter as to do so will definitely alter the terms and conditions of service of the Appellant.
After reading the appointment letter which clearly referred to the Act, we the members of this panel are unanimous that it is right to apply this Act or read this Act (specifically, section 17(3) into this appointment letter.
Our view on this is that the applying of this Section 17(3) of the Polytechnic Act would not Alter our final decision that the appeal has no merit and that it is to be dismiss, we apply or read this Act and still we dismiss this appeal because of the following reasons:-
Appellant agreed with the termination as being correct right and lawful and he went ahead and collected all his rightful and proper payments without complaint. This subsequent action in court or complaint is an afterthought and baseless and trial court rightly in our view refuses both damages as an alternative to reinstatement of Appellant.
The reason why the court cannot order for his reinforcement as no court can impose an employee on an employer and so the trial court rightly refused this claim and we have no reason to disturb the Judgment.
We agree that Appellant cannot be reinstated and so this appeal fail and for the same reason agree with trial court that 5 years damages cannot be granted as he cannot be forcefully be reinstated and he cannot be paid for what he did not do or work for. This appeal is total failure and is dismissed.
On the whole this appeal NO.CA/YL/4/2010 totally failed and is dismissed. No cost to either side.
SOTONYE PENTON WEST J.C.A.: I have the pleasure of going through this Judgment just delivered. I agree with the conclusions therein from a different perspective. I also agree that the appeal is lacking in merit and that the appeal ought to be dismissed and is hereby accordingly dismissed in its entirety without order as to cost.
I hold this view on the basis that the appeal is lacking in merit and this is because most people in the shoes of the Appellant come to the portal of Justice to seek for Justice when they ought to be satisfied that they have been treated with kids glove and courtesy by their employer.
In Nigeria corruption and criminal acts, thrive in work places because employees who indulge in vicious criminal acts are not immediately handed over to the Police, but are left in the system without being prosecuted by such employers and they only contrive to remove them with Justification by resorting to payment of their entitlements in accordance with the common law provisions as regards the employment of master and servant.
It is perhaps obvious that the employment of the Appellant may attract some statutory flavor and as such the employer may be too afraid to go through the rigors of the termination of the employee through the process of law under the provisions, as required by the Public Officers Protection Act of 1990. See Bala Hassan V. Dr. Muazu Babangida (2001) EPR Vol. 8 P.81, Military Administrator Benue State & Ors. V. O.P. Ulegede Esq. 7 Anor. (2001) NSCQLR Vol. 8 P. 110.
There is no doubt that the Appellant employee Chief Accountant has been alleged to have COMMITTED some fraudulent ACTs. They issued him two queries pertaining to criminal Acts as could be glanced from the records of proceedings;
But yet still when he was being relieved of his employment with the Respondent, they did not dare allude to these criminal Acts. Instead they resorted to terminate him in accordance with his agreement of employment; since no employee can be forced on an employer.
Corruption and theft of public funds persists in the system because nobody is made to face the music of their criminal acts. Thus corruption and high profile theft persist and indeed gives this country a very bad image and this is a cankerworm that must be fought against by all and sundry especially the judiciary.
The judiciary itself must involve itself in some form of judicial activism in order to bring forth the bad eggs in the system who use the cloak of the law to cover their evil act.
The Public Officer Protection Act and the locos classical decision of the apex court in the case Olaniyan versus University of Lagos and a host of others are not meant to cover the evil acts of criminal minded minds and enthrone criminality and corruption.
It is meant and indeed it did in Olaniyan to protect public officers who are being victimized and not necessarily officers who may have been fraudulent. See the case of Foboche V. Ogoja Local Government (2001) NSCQLR (SC.139/1996).
In this circumstance, it would not be proper to foist upon an employer an employee that does not actually meet the intendment’s of the employer.
From the foregoing and more particularly that it is not fair to foist an employee on an employer, I am in tandem with the lead Judgment and accordingly dismiss the appeal.
Consequently, I abide by all the orders made therein, including order as to no cost to either party.
IGNATIUS IGWE AGUBE J.C.A.: I have been privileged to read the draft of the lead judgment of my learned brother A. A. Abba, JCA; and the contribution of my Lord the Presiding Justice in advance and I most humbly beg to differ from their reasoning and conclusions culminating in the dismissal of the Appellant’s Appeal and affirmation of the decision of the learned trial Judge that the Appellant had not discharged the burden of proving in what manner the contractual terms of his employment were breached thereby dismissing the Appellant’s claim in the Court below in its entirety. The facts of the case and the arguments of Counsel have been reproduced in both the learned Counsels’ Briefs as well as in the lead Judgment of my learned brother.
With the greatest respect to my Lords and learned colleagues herein and the learned trial Judge of the High Court, the relationship between the Polytechnic and Appellant cannot with all sense of humility be that of purely master and servant but that with statutory flavour taking into consideration the totality of the contractual terms in Exhibit A (the Letter of Appointment of the Appellant) and the provisions of the Federal Polytechnic Act, CAP. F 17, Laws of the Federation of Nigeria 2004. There is no doubt that Clause 2 (e) of the terms of employment, second paragraph thereof, provides thus:-
“However, all staff on Grade Level 13 and above shall be required to give three months’ notice to end with the session or pay three months salary in lieu of notice.” Paragraph (f) of Clause 2 which appears to be the hub/fulcrum of the position taken by the learned trial Judge and indeed my Lords herein, that the Appellant’s employment may be terminated just because his services are no longer required or for no reason at all states thus:-
“(f) The institution may terminate on Officers Service at any time on the same terms as in paragraph 3(c) above provided such termination (sic) are not due to misconduct.”
The above cited provisions notwithstanding, Clause 3 of the Contract makes it explicitly clear that the contract is statutorily flavoured with the following provision:-
“3 Other conditions of service are as spelt out in the Polytechnic Conditions of Service and Federal Government Circulars as may be issued from time to time.” Again, to lay to rest the controversy as to whether in the determination of the Appellant’s employment it is only Exhibit ‘A’ his letter of employment which sets out the contractual terms thereof that should or ought to be looked at or construed without necessarily considering the Statute establishing the Institution; section 17 of the Federal Polytechnic Act Cap. F.17 with the title: “Removal and discipline of academic administrative and technical staff;” provides in subsection (3) thereof that:
“For good cause, any member of staff may be suspended from office or his appointment may be terminated by the Council and for purposes of this subsection, “good cause” means-
(a) Any physical or mental incapacity which the council after obtaining medical advice, considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or
(b) Any physical or mental incapacity which the council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or
(c) Conduct of scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or
(d) Conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his Office or to comply with the terms and conditions of his service.”
From the above quoted provisions, it is clear and unequivocal that in spite of Clause 2(e) and (f) of the Letter of Appointment, to remove an administrative staff of pensionable cadre like the Chief Accountant or any other staff of that cadre, the Respondents must comply with the provisions of the Statute regulating the affairs of the Polytechnic and indeed the employment of its staff and that is for good cause being shown and the Officer having been afforded the opportunity to defend himself against any allegation of such nature in the manner stipulated in Section 17 (1) of the Federal Polytechnic Act, CAP. F17, Laws of the Federation of Nigeria, 2004.
The learned Counsel for the Respondents and indeed the Court below bluntly refused to appreciate the fact that apart from disciplinary actions against erring Academic, Administrative, and Technical staff of the Polytechnic, that Section of the Polytechnic Law which they hold does not apply to the terms and conditions of the Appellant’s employment, or should not be read into the letter of termination of appointment (Exhibit G) goes beyond Clause 2(e) and (f) in that it spells out the conditions only under which (assuming the Appellant’s Services are no longer needed) he can be removed that is, on good cause being shown.
In other words before an employee of such calibre is removed from his office or his services dispensed with considering the fact that the security of his tenure is guaranteed statutorily, he must have fallen short of all or any of the conditions stipulated in subsection (3) (a), (b), (c) and (d) and any other interpretation given to this provision of the Polytechnic Act will not only do violence to the essence of that Law but will render nugatory the security of tenure of employees of that institution whose employment are statutorily flavoured. See Igwilo v. C. B. N. (2000) 9 NWLR (pt. 672) 302; Bamigboye v. Unilorin (1999) 10 NWLR (pt. 622) 290 Cases like Kato V. CBN; Iwuchukwu V. Nwizu (1994) 7 NWLR (pt. 357) 379 and so on, which the learned trial Judge relied upon to hold that the 1st Respondent did not attribute the termination of the Plaintiff/Appellant’s appointment to any act of misconduct or wrong doing but simply said that the services of the Plaintiff were no longer needed or required may have been decided on their peculiar facts and circumstances but do not relate to contracts with statutory flavour as in this case.
The learned trial Judge also at page 32 of his Judgment (page 153 of the Record of Appeal), had held that the Plaintiff cannot, in his view, read into Exhibit G the letter terminating the appointment of the Plaintiff acts of misconduct, physical or mental disability or inability to perform the functions of his office so as to bring it within the scope and purview of the provisions of section 17 (1) and (3) of the Polytechnic Act, Laws of the Federation of Nigeria, 2004.
This holding falls flat in the face of the provisions of section 17 (3) of the Act for, if the letter of termination of appointment is devoid of all these “good causes”, then the termination of the Appellant’s employment is ultra-vires the powers of the Council and accordingly unconstitutional null and void as shall be demonstrated anon. For instance, in the locus classicus of Olaniyan & ors V. The University of Lagos and Another (1985) 1 A.N.R. at pages 369 to 466; Oputa, JSC with whom Obaseki, Eso, Aniagolu and Karibi-Whyle JJSC; concurred had had cause to illuminate the dark crevices of this intriguing aspect of our industrial relations law and in their Judgment settled all the issues which have cropped up here in this Appeal as for as the status of the Appellant, the nature of his contract, the law governing the relationship between the parties and whether the Respondent could terminate the appointment of the Appellant without recourse to section 17 (3) of the Federal Polytechnic Act, are concerned.
In that case Oputa, JSC; after agreeing that the law of master and servant and indeed the contract between them is subject to common law and statutory rules and that by and large a master can terminate the contract at any time for any reason or no reason of all, the learned Law Lord added a rider that if the master does so in a manner unwarranted by the particular contract under review, he must pay damages for breach.
In this regard, he identified three types of employment namely where the office is at the pleasure of the employer, where the employment covers the ordinary master and servant relationship governed by a written contract not subject to any statutory restrictions or limitations in which case the duty of the Court is to apply the terms, conditions and provisions of the contract as they appear without resort to any provision of statute regulating. The third type identified is, as in this case, where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which the servant can be removed or dismissed. According to the learned Emeritus Justice of the apex Court;” in such contracts is the servant is removed on grounds other than those specified in the contract or allowed by statute, his removal will be held to be unjustified or ultra vires null and void as the case may be: see Mc Chelland V. Northern Ireland General Health Service Board (1957) 1 WLR 549. He continued inter alia that:
“When the employing authority wants to remove its servant on grounds permitted by statute, then as Lord Campbell, C.J; observed in Exparte Ramsey (1952) 18 Q. B. 173 at p. 190, “the principles of eternal justice” will dictate that the servant cannot be unlawfully dismissed with first telling him what is alleged against him and hearing his defence or explanation. Even where the servant had personal knowledge of the offence or reason for his removal, that was held to be no substitute for hearing the officer’s explanation in Reg. V. Smith (1884) 5 Q. B. 614.”
On the crux of this matter whether the Court below was right in ignoring section 17 (1) and (3) of the Polytechnic Act in the determination of the validity of the termination of the Employment of the Appellant, I agree completely with the submission of the Learned Counsel for the Appellant at page 6 of the Appellant’s Brief that in so for issue Number One relates to whether the Appellant’s contract is governed by both statute and contract of employment, the Appellant’s case is similar in almost all respects to the case of Olaniyan V. University of Lagos and the lower Court was bound to follow the decision of the Supreme Court rather than run away from it or seek refuge on decisions that do not relate to contracts with statutory flavour.
At pages 374-375 of the Report (1985) 1 A. N. L. R; the learned Justices of the Supreme recalled the dictum of Idigbe JSC in Shitta-Bey V. The Federal Civil Service Commission (1981) 1 S. C. 40; at page 56 that the Civil Service Rules of the Federal Public Service and other Statutory provisions concerning the termination of appointment/contract of Public Officers of the likes of the Appellant; savour of constitutional force and the servant to whom they apply is thus invested with “a legal status” which status elevates him beyond that of a mere master/servant relationship but guarantees that he cannot be removed except as provided by those provisions. In this wise, just like the University of Lagos and its Council are the creation of statute so are the Respondents in this Appeal and therefore they cannot act except within and under the powers conferred on them by the relevant statute, herein the Polytechnic Act CAP. F. 17, Laws of the Federation of Nigeria, 2004.
Coming home to the positions taken by my learned brothers and the trial Judge, it is my humble view that rather than read clause 2(e) and (f) of the Terms of the Contract in isolation, the Court below ought to have read them together. Assuming but not conceding that the clause aforementioned can stand alone, I am in total agreement with learned Counsel for the Appellant that in so far as the clause provides a safe haven for the Respondents to circumvent the statutory provision governing the removal of the Appellant, then the clause is inconsistent with the Regulatory Statute and accordingly is null and void. See Olaniyan V. University of Lagos and Another (supra) at page 375; where Oputa, JSC; again approved the position taken by Nasir, P.C.A. at page 15 of his lead Judgment on the case of the Court of Appeal level that:-
“Thus where there were clearly statutory provisions covering the relationship of master and servant the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the said statutory provisions.”
Accordingly, in the same vein, the learned Counsel for the Appellant was on very solid pedestal when he cited O. A. Adeyemi Adeniji V. Governing Council of Yaba College of Technology (1993) (pt. 300) 427; which re-emphasized the position above taken by their Lordships Oputa JSC and Nasir P.C.A; adding that non-compliance with the statute regulating the termination of appointment of the Appellant rendered the Appellant’s removal ultra vires, null and void as parties cannot by their consent discharge the contract without compliance with the statutory provisions. See Isievwore V. NEPA (2002) 13 NWLR (pt. 784) 4171; Bamigboye V. Unilorin (1999) 10 NWLR (pt. 622) 290.
In the case at hand, the learned Counsel for the Respondent and indeed the Court below with whom my Learned brothers agree when he cited the holdings of Oputa at pages 380 and 385 that where there was no finding that the appointee is being removed on the ground of misconduct, then the employment of the appointee is terminable by salary in lieu of notice. The learned Counsel to the Respondents either deliberately or erroneously shot himself on the foot when he relied on the dictum of His Lordship Oputa, as a follow up to the above holding that the first ratio decidendi in Gunton’s case (supra) that: “Although the Council had power by virtue of the express term in the Plaintiffs letter of appointment to dismiss the Plaintiff simply on a month’s notice on grounds other than disciplinary grounds, it was required to carry out all steps of the appeal procedure that applied and as it had admittedly failed to do so, the Council had wrongfully dismissed the plaintiff on 13th January, perfectly fits the facts and circumstances of the present appeal.”
The above submission rather buttresses the Appellant’s case in that although paragraph (f) of Clause 2 of the express terms of the Appellant’s Contract/Appointment Letter, stipulates that the Institute may terminate an Officer’s service at any time on grounds other than misconduct simply by giving him a month’s salary in lieu of notice; there is still a proviso by the dictum of His Lordship that “if (the Respondent’s Council here in)” was still required by virtue of Section 17(1) of the Federal Polytechnic Act, “to carry out all the steps of the appeal procedure that applied” and as it has been tacitly admitted by the Respondents nay the Court below that the provisions of the Act cannot be read into the letter of termination of appointment of the Appellant; thus admitting that the Appellant was not given a hearing or that the appeal procedure stipulated in the Polytechnic Act not were complied with; it is crystal clear that the Council had wrongfully terminated the appointment of the Appellant on the 2nd day of October, 2009. See Igwilo V. C. B. N. (2000) 9 NWLR (pt. 672) 302.
Apart from the above scenario, the learned Counsel for the Respondent in this respect and on another wicket has submitted that Olaniyan’s case is not on all fours with the appeal at hand insisting that in this case there is no finding of fact that the Appellant was removed on ground of misconduct adding that, that was not even the Appellant’s case of the trial but that Appellant’s case was that he would only be terminated on ground of misconduct or for good cause. Further reference has also been made to the case of Oloruntoba Oju V. Abdul-Raheem (2009) ALL FWLR (pt. 497) 1, (2009) 6 SCNJ 1; cited by learned Counsel for the Appellant to buttress the fact that Appellant’s appointment cannot be terminated without showing good cause; to submit on the contrary that these cases do not support the Appellant’s contention. He then distinguished the facts in Olaniyan and Oloruntoba-Oju (supra) on the one hand and the present Appeal on the other submitting that in the former cases, their letters of Appointment were silent on the reason for termination, whereas herein, the Court below held that the reason for termination has been stated.
I must without any hesitation state that in the present Appeal from the facts as can be gathered in the averments of the Plaintiff/Appellant’s Affidavit in Support of the Originating Summons particularly paragraphs 6, 7 and 8 thereof, the Appellant on the 2nd day of July, 2009 received a letter inviting him to appear before a committee “Adhoc Committee on illegal photocopying of payment vouchers”, a copy of the said letter which he attached as Exhibit D.
He appeared before the said Committee and made oral submission or representation; and on the 13th day of July, 2009, he was again asked to make a written representation which he made on 4/8/09; copies of the letter of request and his Reply were also tendered as Exhibits ‘E’ and ‘F’ respectively.
In paragraph 9 he averred that he did not hear anything again until 2nd day of October, 2009 when he was served with a letter terminating his appointment as Chief Accountant with the 1st Defendant/Respondent – the letter of Termination of Appointment which he also annexed as Exhibit G. Upon my careful perusal of Exhibits D, E, and F, I am satisfied that like the case of Oloruntoba – Oju and Olaniyan, the Appellant was invited to appear before a Committee on illegal photocopying of payment voucher which presupposes that he may have been accused or suspected to have been involved in malpractices or dishonourable conduct which if investigated and found proven, he ought to be handed over to a Court of Law to be tried and if convicted the legal consequences could be visited on him. The Respondents have not furnished the Appellant with the outcome of the investigation neither has it been shown that he was guilty of any misconduct.
Exhibit E is another query for the Appellant to make written representation about the “file (Procurement of Vehicle)” to the same Adhoc Committee on illegal photocopying of payment vouchers, a Reply to the Letter of request or query which he accordingly wrote and transmitted to the Committee. Nothing was also said about the Committee or the representation made by the Appellant only for the Governing Council at its meeting held on the 30th September, 2009, to approve the termination of his appointment on the ground that his services were no longer required.
From all indications, there is ample evidence from which it can be inferred that the appointee/Appellant was removed on ground of misconduct. There is no evidence that the Adhoc Panel’s findings of illegal photocopying of payment Voucher or the complaint about the procurement of vehicle file were communicated to the Appellant before he was removed post-haste on the spurious ground that his services were no longer needed. In fact the allegations for which invitation were extended to the Appellant were tantamount to conduct of scandalous or disgraceful nature which if proven could warrant the Council of the Polytechnic to conclude that they were/are such as would render the person concerned (Appellant) unfit to continue to hold his office or a negligent conduct which Council could consider to be such as to constitute failure or inability of the Appellant to discharge the functions of the Chief Accountant or to comply with the terms of his service as provided as “good causes” for termination of his employment in section 17(3) (c) and (d) of the Federal Polytechnic Act CAP. F. 17, Laws of the Federation of Nigeria, 2004. See Iloabuchie V. Philips (2002) 14 NWLR (pt. 787) 264; Olatunbosun V. N.I.S.E.R. Council (1988) 3 NWLR (pt.80) 25 and Alhassan V. A. B. U. Zaria (2011) 11 NWLR (pt. 1259) 417 at 456 – 457
paras D – A. The Appellant therefore ought to have been afforded the opportunity to be heard as guaranteed him by section 17 (1) (a) (b) (c) (i), (ii) and (iii) of the Federal Polytechnic Act or Section 36(1) and (2) (a) of the Constitution of Federal Republic of Nigeria, 1999) as amended). See Igwillo v. CBN (2007) 5 SCNJ 52 at page 80; per Ogbuagu, J.S.C. Not having apprised Appellant of any notice of the reasons for his removal nor has he been afforded the opportunity to make representations in person on the matter to the Council or the Council Committee, I agree that the dictum in Gunton’s case (supra) applies herein and I also hold on the authorities of Olaniyan V. University of Lagos & Another (supra) at page 385 and Oloruntoba – Oju; which are on all fours with this case, that the termination of the Appellant’s appointment by the Respondents was not only illegal and unconstitutional, but was ultra vires, null and void. See Balogun v. University of Abuja (2002) 13 NWLR (pt. 783) 42.
Before rounding up my contribution, let me briefly comment on the issue of reinstatement and/or award of damages. Where the learned trial Judge held that the termination of the Appellant was valid by virtue of the memorandum of Employment, he could not have made any other order except the dismissal of the Appellant’s case and the cost awarded to the Respondents.
However, herein on Appeal since I have held the considered view that the Appellant’s removal from his appointment is/was wrongful, illegal, unconstitutional, invalid, ultra vires, null and void the powers of the Respondents’ Council in that the Appellant was not afforded the opportunity to defend himself on the allegations made against him as required by Section 17 (1) of the Federal Polytechnic Act, which must have culminated in the purported decision to dispense with his employment; on the authorities of Shitta-Bey V. Federal Civil Service Commission (1981) 1 S.C. 40; Iderima V. Rivers State Civil Service Commission (2005) ALL FWLR (pt. 285) 431; which followed the locus classicus of Hart V. Military Governor of Rivers State (1976) NSCC (Vol. 10) 222; even without asking, this Court can order reinstatement as a consequence of setting aside of the wrongful termination of the Appellant’s appointment. See Balogun V. University of Abuja (supra).
In Nnoli V. UNTH Management Board (1994) 13 KLR (pt.25) 1613 at paragraphs 13 – 35 per Onu, JSC; commenting on the claim by the Respondent that she was 45 years old when she was prematurely retired from her office or employment, held that the act of termination from service of the Appellant was rightly in his view declared null and void and that the effect was that the Respondent was entitled to return to her duty post.
In the view of Uwaifo, JCA (as he then was) who delivered the lead judgment of the Court of Appeal from where the Appeal emanated to the Supreme Court warranting the decision of Onu, JSC; who hailed the decision of Uwaifo JCA as having put the matter admirably beyond per adventure inter-alia:-
“A look at the reliefs sought by the Plaintiff reveals that they are for declarations that the retirement was invalid that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void, that is to say that the decision retiring her from the services of UNTH was declared to be no decision… It is as if she was never retired from her services. The Plaintiff’s contract of employment was in these circumstances of this case unilaterally repudiated by defendants. She refused to accept repudiation in the prompt manner she wrote to the Defendants to this effect there is nothing standing on her way to have her job or office back with all the attendant rights privileges and benefits. In other words she is entitled to be restored to her status quo-ante.” See per Munkata Coomassie, JSC in I.H.A.B.U.M.B. v. Anyip (2011) 12 NWLR (pt. 1260) 1 of 18 para. H.
In the instant case the Plaintiff/Appellant had sought for:
“i. A declaration that the letter of termination of appointment dated 2nd October, 2009 addressed to the Plaintiff and signed by one P. U. Ndalamu (Deputy Registrar) is unlawful unconstitutional and ultra vires the Defendants and therefore null and void and of no effect whatsoever;
iii. An order of the Court reinstating the Plaintiff to his post as Chief Accountant of the 1st Defendant or to any higher office the Plaintiff ought to be entitled to but for the unlawful termination of his appointment,
iv. An order of Court for the payment of all salaries and allowances due and payable to the Plaintiff during the period of the termination until final judgment or until he is reinstated,
v. Or in the alternative payment of the sum of Fifteen Million, Three Hundred and Ninety Four Thousand, Five Hundred and Fifty Two Naira, Sixty Eight Kobo (N15, 394,552.68) for wrongful termination being the sum the Plaintiff would have earned in his employment as Chief Accountant until the retirement age of 60 years in 2016.”
I adopt the dicta of their Lordships Onu, JSC and Uwaifo, JCA (as he then was); in Nnoli V. U.N.T.H. Management Board (supra) as for as Reliefs 1, 3 and 4 are concerned in this appeal and hold that the Appellant is entitled to be reinstated and all his entitlements paid him as if he had not been retired or his employment terminated by the Respondents. This is notwithstanding the fact that he had collected three months Salary in lieu of notice as mere acceptance of salary in lieu of notice does not validate the invalid and void termination of his employment carried on in violation of the Regulation and Statutory stipulations of the Federal Polytechnic Act, CAP. F 17, Laws of the Federation of Nigeria, 2004 which governing his employment. See Military Administrator of Benue State V. Ulegede (2001) 17 NWLR (pt. 741) 194 and Adeniyi V. Yaba Tech (1993) 6 NWLR (pt. 300) 42 cited per Abadua, JCA in Alhassan V. ABU Zaria (supra) at 467 – 468 paras. H – E.
In the alternative since the Appellant had pleaded in paragraph 11 of the Affidavit in Support of the Originating Summons: “That I was born on 20/6/56 and would be 60 years old by 2016. A copy of my Statutory Declaration of Age is attached and marked Exhibit H”:
“12. That I am due for retirement on 19/4/2016 when I would have been 60 years old in service,
“13. That I am currently on a monthly salary of N197, 366.06 and by 19/4/2016 when I would have retired earned a total of N15, 394, 552.66”, the Appellant as rightly submitted by the learned Counsel for the Appellant would have been awarded the salary he would have earned for the un-exhausted years he was or ought to have served had his appointment not been prematurely terminated. (See Igwilo V. C.B.N. (2000) FWLR (pt. 18) 1 at 260 and Nwagbanebi V. N.P.P.B. (1986) 3 NWLR (pt. 29) 489 of 490) assuming the Appellant will not be reinstated since the Appellant has only three years to attain his retirement age by 2016.
On the whole I hold that the Appellant had proved his case and would therefore have been entitled to Judgment if not on all, but at least Reliefs Numbers i, ii, iii, iv and v of his claim. Accordingly, I shall allow the Appellant’s Appeal and grant all the Reliefs sought in his Originating Summons. I hereby set aside the Judgment of the Hon. Justice S. M. Shaibu of the Federal High Court; Yola delivered on the 26th June, 2010 whereby he dismissed the Appellant’s claim and awarded N10, 000. 00 costs in favour of the Respondent.
I shall however make no order as to costs herein.
Appearances
Barrister Chris Ezenwelu
Mr. W.P. Demshemino.For Appellant
AND
Barrister Etim Akpan holding brief of T.S. Ibanga for the 2 Respondents (1) Counsel Federal Polytechnic Mubi and Dr. Mustapha Barau the Rector of Mubi Federal Polytechnic.For Respondent
