AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR (2015)

AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR

(2015)LCN/7763(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 4th day of February, 2015

CA/L/563/2010

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE ISSUES FORMULATED FOR DETERMINATION OF AN APPEAL MUST RELATE TO THE GROUND OR GROUNDS OF APPEAL

The law is long settled on the formulation of issues for determination in a Respondent’s brief of argument. It is to the effect that an issue or issues formulated for determination of an appeal by the Respondent must of necessity, relate to the ground or grounds of appeal filed by the Appellant. The only exception where a Respondent can validly raise any issue for determination which is not related to or arise from the grounds of appeal filed by the Appellant is where there is a cross-appeal or Respondent’s Notice. It follows therefore that a Respondent to an appeal who has not filed a cross-appeal or Respondent’s notice cannot raise an issue for determination outside the grounds of appeal filed by the Appellant. See NZEKWU VS NZEKWU (1989) 2 NWLR (PT.104) 373; EKE VS OGBONDA (2006) 18 NWLR (PT.1012) 506; KUUSU Vs UDOM (1990) 1 NWLR (PT.127) 421; APGA VS UMEH (2011) LPELR 426 (SC) JEMIBEWON VS KOSOKO (2010) LPELR (8970) CA; UDUAGHAN VS OGBORU (2012) 1 NWLR (PT.1282) 521; LIASU VS SALAU (2012) 2 NWLR (PT.1318) 579. An issue for determination in an appeal should be based on a ground or grounds of appeal. Where an issue does not have direct bearing with any of the grounds of appeal, it will be discountenanced. See EMENIKE VS P.D.P (2012) 12 NWLR (PT.1315) 556; LIASU VS SALAU Supra and AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PT.314) 240. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LABOUR LAW: CIVIL SERVICE RULES; WHETHER THE CIVIL SERVICE RULES ARE APPLICABLE TO CORPORATE ENTITIES
Though the Supreme Court dealt with the issue of whether a limited liability company will be subject to the applicability of the Civil Service Rules wherein it held at page 685 of the Report that:-
“A limited liability company with powers to sue and be sued in its own name and with the powers to act a corporate as a corporate entity cannot be governed by the Civil Service Rules. The spirit of the corporate existence of companies will be negated should such state of affairs be allowed to have sway.”
It must however be conceded that apart from the issue of the status of a corporate body vis a vis employment governed by the Civil Service Rule, the Apex Court gave far reaching decisions on who is a Public Officer and the proper mode of appointment and removal of such Public Officer by the relevant bodies. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LABOUR LAW:TERMINATION OF THE APPOINTMENT; TERMINATION OF THE APPOINTMENT OF AN OFFICER ON PROBATION

It is trite that an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporary during the period of probation hence the process of his removal is not subjected to strict adherence to Rules as is the case with a confirmed officer. That is why the Rules or even Exhibit P1 provided for one month’s notice of termination of the appointment on both sides. Thus in the case of IGWILO VS C.B.N (2000) 9 NWLR (Pt.672) 302
It was held that:-
“In the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for termination. But in the termination of a confirmed officer, the procedure of termination must be followed, otherwise the termination is invalid.
See also ALHASSAN VS ABU, ZARIA (2011) 11 NWLR (PT.1259) 417. In ZUKWU VS UNIVERSITY OF JOS (1990) 7 SC (PT.1) PAGE 18. It was held by the Supreme Court that the sole purpose of putting an employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment and probationary period is a period of observation.
Therefore once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot justifiably complain.
Also in ALHAJI BABA VS NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT.192) 388 it was held that in the termination of the appointment of an officer on probation, no procedure is provided for that need to be followed once the employer is satisfied that there is good cause for the termination. See also NITEL PLC VS AKWA (2006) 2 NWLR (PT.964) 391 AND SIMEON VS COLLEGE OF EDUCATION EKIADOLOR-BENIN (2014) LPELR (23320) CA. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: A CASE TRIED DE NOVO BEFORE ANOTHER JUDGE; WHETHER EVERY RULEING SUBSISTS WHEN A CASE IS TO BE TRIED DE NOVO BEFORE ANOTHER JUDGE DUE TO THE TRANSFER OF A FORMAL JUDGE HEARING IT OR DUE TO A REASSIGNMENT ORDER
When a case is to be tried de novo before another Judge due to the transfer of a former judge hearing it or due to a reassignment order, every Ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting. See SUBERU VS ACB & ORS (2002) LPELR (12207) CA. Where it was held that all the Judges have concurrent jurisdiction. No Judge of a High Court is in a position to review or revisit a decision or order of his brother Judge. A decision, judgment or ruling given by a particular Judge while sitting as a court is that of the court rather than that of an individual judge. See also LIASU vs SALAU (2011) LPELR (3919) CA AND EGBUCHE VS EGBUCHE (2013) LPELR (22512) CA. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

LABOUR LAW: PROBATION; THE MEANING OF PROBATION AND THE SOLE PURPOSE OF PUTTING AN EMPLOYEE ON PROBATION

In BABA v NIGERIAN CIVIL AVIATION TRAINING CENTRE [1986] 5 LPELR-21095, the Court while adopting the Black’s Law Dictionary defined the word “probation” as:
“The initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position.” The sole purpose of putting an employee on probation is to give the employer an assurance that that employee is a fit and proper person to be placed on permanent appointment. Probational period is a period of observation by the employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with an employee cannot justifiably complain. See IHEZUKWU v UNIVERSITY OF JOS [1990] 7 S.C. (PT.1) 18; OLAYINKA KUSAMOTU v. WEMABOD ESTATE LTD (1976) 11 S.C. 279
It is apparent that before the appointment of the Appellant will be confirmed, he must have fulfilled the condition precedent as prescribed. Per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

AL-BISHAK Appellant(s)

AND

1. NATIONAL PRODUCTIVITY CENTRE
2. MINISTER OF LABOUR AND PRODUCTIVITY Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The Appellant herein had as plaintiff in the Lower Court commenced this suit by way of originating summons against the two defendants (now 1st and 2nd respondents). The said originating summons and the Affidavit in support are dated 25-6-1996.

This was substituted with an amended writ of summons and statement of claim dated 18-7-2005 wherein the Appellant as plaintiff sought the following reliefs against the defendants (now respondents) jointly and severally:-

WHEREOF the Plaintiff claim against the Defendants jointly and severally the following;

a. A declaration that the letter of the 1st Defendant Ref. No.ML./NPC/Aa/478/C/1/273 dated 27th May, 1995 purporting to terminate the plaintiff’s employment is null and void as the said letter is contrary to the provisions of the Federal Government Civil Service Rules, particularly Rules 04104, 04107 and 04201;

b. A declaration that the purported termination of the Plaintiffs employment at the National Productivity Centre is unlawful, invalid and unconstitutional as the plaintiff was not given a fair hearing as required by the Federal Government Civil Service Rules;

c. A declaration that the plaintiff is still an Assistant Director (Information Services and Publications) in the employment of the National Productivity Centre and consequently entitled to the normal salaries entitlement and benefits attaching to that office from 27th May, 1996 up till the date of judgment;

d. A declaration that the Plaintiff is entitled to the possession and the continued use and occupation of his official quarters situate a flat 8, LSDPC Executive/Shopping Complex, Gbaja Street, Surulere, Lagos his purported termination being null and void as it is contrary to the Civil Service Rules and the Rules of natural justice;

e. A consequent declaration that the Defendants by themselves and/or their servants or agents or acting in any manner whatsoever are not entitled to forcibly or illegally eject the Plaintiff from the premises at flat 8, LSDPC Executive/Shopping Complex, Gbaja Street, Surulere, Lagos;

f. An order compelling the Defendants to pay the Plaintiff all his arrears of salaries and or emoluments from the time of his purported dismissal up till date of judgment;

h. Cost of litigation at N500,000.00 (Five Hundred Thousand Naira) Only.

The two Respondents reacted by filing their respective statement of defence. In addition, the 2nd respondent filed a notice of preliminary objection seeking the striking out of the suit against it because it is not a proper or necessary party and there is no reasonable cause of action disclosed against it. In a considered ruling delivered on the 4-3-2009 by P. F. OLAYIWOLA J. the said preliminary objection was overruled.

In a nutshell, the facts leading to the institution of the action was that the appellant was employed on probation by the 1st respondent as an Assistant Director Grade level 15 vide a letter of appointment dated 2-9-91. The said letter contain the terms of the employment. However, the said appointment was terminated by a letter dated 27-5-1996 on a number of grounds which includes acts of misconduct, insubordination, poor track-record of quarreling with all grades of colleagues at work. Upon receipt of the said letter of termination the appellant wrote a petition to the 2nd Respondent and the secretary to the Government of the Federation and Head of Service and having received no reprieve he brought this action.

At the hearing the appellant was the sole witness while the 1st Respondent called one witness in defence. The 2nd Respondent did not call any witness to give evidence in support of its pleadings but only relied on the evidence of the 1st Respondent.

At the conclusion of hearing, written addresses were ordered, filed and served by the parties who adopted same on the 2-12-2009.

In a judgment delivered by Lambo Akanbi J. of the Federal High Court, Lagos Division on 27-1-2010, the appellant’s claim was held to succeed only to the extent that his appointment was wrongly terminated and as such entitled to damages assessed as one month salary in lieu of notice while the claim against the 2nd Respondent was dismissed for disclosing no cause of action against it.

Being aggrieved with the said judgment, the appellant filed a Notice of Appeal dated 26-4-2010 and it has seven grounds of appeal.

In compliance with the Rules of this court, the parties subsequently filed and served their respective briefs of argument.

The appellant’s brief of argument is dated 18/3/2011 and filed on 19/8/2011 but deemed properly filed on 29/11/2012. The Appellant’s reply brief to the 1st Respondent’s brief of argument is dated and filed on 15/1/2013. It also includes arguments on the Notice of Preliminary Objection filed by the appellant challenging the competence of the issues for determination formulated in the 1st Respondent’s brief.

There is also a reply to the 2nd Respondent’s brief of argument and it is dated and filed on 30/4/20t3, but deemed properly filed on 6/5/2013.

It also contains a response to the 2nd Respondent’s Notice of Intention to contend filed on 17/1/2013.

The 1st Respondent’s brief of argument is dated and filed on 28/12/2012 while the 2nd Respondent’s brief was filed on 17/1/2013 but deemed properly filed and served on 27/2/2013. It also filed a Notice of Intention to contend on 17/1/2013.

At the hearing of the appeal on 6/11/2014 the parties duly adopted and relied on their respective briefs of argument but not before the appellant had moved its Notice of preliminary Objection dated 15/1/2013. This will be addressed subsequently in this judgment.

In the appellant’s brief of argument four issues were formulated for determination as follows:-

(1). Whether having found by the learned trial judge that the parties intended or desired that their relationship be governed by the Federal Service (sic) Rules, the learned trial judge was right in not giving credence to the intention of the parties before it and if the reliance on the case of Okomu Oil Palm Co. Vs Iserehienrhien (2001) 6 NWLR (Pt.710) 660 by the learned trial judge was appropriate in the circumstance of this appeal.?

(2). Whether there is sufficient evidence before the learned trial judge that the employment relationship between the appellant and the 1st Respondent is regulated by the provisions of the Federal Civil Service Rules thereby clothing the employment of the appellant with statutory flavour and if the learned trial judge was right to have held otherwise.

(3). Whether in view of the pleadings and the evidence before the court, the learned trial judge was correct in dismissing the appellant’s action against the 2nd Defendant on the ground as found by the learned trial judge, that no reasonable cause of action was disclosed against the 2nd Defendant.

(4). Whether having found that the termination of the appointment of the Appellant was wrongful, the learned trial judge was correct in law to have awarded damages of one month’s salary in favour of the Appellant and if the learned trial judge is entitled to consider the provisions of Section 16 of the National Productivity Act No.7 of 1987 which is in pari materia with Section 15 of the National Productivity Act Cap N70 LFN, 2004 in the award of damages payable to the Appellant.

In the 1st Respondent’s brief of argument one issue was distilled for determination, to wit:-

“Whether the Appellant’s employment was governed by Exhibit P1 and thereof properly terminated by the 1st Respondent.?

Two issues were formulated for determination in the 2nd Respondent’s brief of argument as follows:-

(i). As a third party to the contract of employment, whether a legally enforceable relief has been sought against the 2nd Respondent.?

(ii). Whether at all material times relevant to this suit the 2nd Respondent acted within the powers allowed by statute creating the 1st Respondent.?

As earlier indicated the appellant filed a Notice of Preliminary objection challenging the sole issue raised in the 1st Respondent’s brief on the ground that it is not derived from any of the grounds of appeal filed by the appellant. The said Notice of Preliminary Objection is dated and filed on 15/1/2013 and a similar Notice is also embedded in page 5 of the Reply to the 1st Respondent’s brief while the argument in support covers pages 6-8 therein. The 1st Respondent’s brief was filed on the 28/12/2012 and it has a sole issue for determination which reads thus:-

“Whether the Appellant’s employment was governed by Exhibit P1 and thereof properly terminated by the 1st Respondent? (All the grounds of Appeal).

I however look askance at the approach adopted by the appellant in challenging the said issue on the basis that it is not derived from any of the grounds of appeal. To my mind, coming by way of a preliminary objection is out of place, given that the 1st Respondent having filed and served its brief of argument will have no other opportunity to respond or react to the said Notice of Preliminary Objection, moreso that the Appellant’s challenge is contained in his reply to the 1st Respondent’s brief of argument. This no doubt will create a room for complaint against the 1st Respondent’s right to a fair hearing. It is my humble view that the proper approach would have been to simply raise it as a point in the Appellant’s reply brief and leave it to the court to investigate and decide whether or not the issue in question was derived from any of the grounds of appeal.

Nonetheless, the court can on its own address the point whether the issues raised in a respondent’s brief is derived from any of the grounds of appeal.

An issue for determination in an appeal should be based on a ground or grounds of appeal. Where an issue does not have direct bearing with any of the grounds of appeal, it will be discountenanced. See EMENIKE VS P.D.P (2012) 12 NWLR (PT.1315) 556; LIASU VS SALAU Supra and AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PT.314) 240.

In the instant case, I have carefully perused the seven grounds of appeal in the Appellant’s Notice of Appeal at page 478 to 483 of the Record vis a vis the sole issue raised in the 1st Respondent’s brief of argument and I cannot but disagree with the contention of the Appellant that it is not derived from any of the seven grounds of appeal. I find that the said issue encapsulates grounds 1-4 of the Appellants grounds of appeal. What is more, grounds 1 to 5 and 7 were not grounds couched by the appellant himself but quotations from various portions of the judgment of the Lower Court for which the appellant felt the learned trial judge erred in law to have so held. To my mind therefore the 1st Respondent is on firm grounds with the sole issue raised for determination in its brief of argument having been found to have derived from grounds 1 to 4 of the Appellant’s Notice of Appeal.

Interestingly the appellant also in his reply to the 2nd Respondent’s brief complained that the two issues raised in the said 2nd Respondent’s brief did not flow from the appellant’s grounds of appeal.

The Appellant also challenged the Respondent’s Notice of intention to contend filed on 17/1/2013 on the ground that the reliefs sought and the grounds upon which they are sought in the said Respondent’s Notice did not flow from the pleadings of the 2nd Respondent at the trial court and as such what it seeks to do is to Reverse the decision of the trial court which can only be done by way of a cross-appeal. NABISCO INC VS. ALLIED BISCUITS CO. LTD (1998) 10 NWLR (PT.568) 11; ADEKEYE VS AKIN-OLUGBADE (1987) NWLR (PT.60) pp. 19-20; E.I.I.A. vs. C.I.E. LTD (2006) 4 NWLR (PT.969) AT pp. 19-20 AND MOGHALU VS NGIGE (2005) 4 NWLR (PT.914) PAGE 26.

It was submitted that the 2nd Respondent should not be allowed to put up a different case on appeal under the guise of a Respondent’s Notice, moreso that it never adduced any evidence at the trial court which means that he admitted the averments in the appellant’s pleading.

Further reference was made to Order 9 Rule (1) of the Court of Appeal Rules 2011 to contend that the 2nd Respondent did not comply with its provisions as relating to the form and content of a Respondent Notice.

Now Order 9 Rule 1 of the Court of Appeal Rules 2011- provides that:-
“A Respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposed to ask the court to make in that event as the case may be.”
Sub Rule (2) also provides that:-
“A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by the court, must give notice to that effect specifying the grounds of that contention.”
In either of the above provision the Respondent is required to state specifically, the variation which will be asked for. This is totally lacking in the Respondent Notice filed by the 2nd Respondent. It merely presented a vague and ambiguous request which is impossible to grant.
It reads thus:-

‘”TAKE NOTICE that during the hearing of this appeal, Minister of Labour and Productivity the above named 2nd Respondent intends to contend on appeal that the decision of the court below (to wit, the Final judgment of the Federal High Court, Lagos pronounced on Wednesday 27th day of January, 2010) do and shall be affirmed on other grounds in addition to or in substitution for those relied upon by the court in its aforesaid judgment.”

The nature and manner of variation was not stated as shown above and it is not for this court to descend into the arena of our adversarial system of justice to fill in the gapping lacuna. The failure by the 2nd Respondent to state the nature of variation or confirmation sought is a fundamental vice which renders the respondent Notice incompetent and it is accordingly struck out.

I will now address the appellant’s complaint with regard to the competence of the two issues formulated for determination in the 2nd Respondent’s brief.

This time around the Appellant adopted the right approach by raising the point in his reply to the 2nd Respondent’s brief, rather than by way of Notice of Preliminary Objection as was done in the case of the 1st Respondent.

Well, I have also gone through the Appellant’s seven grounds of appeal vis-a-vis the two issues raised for determination in the 2nd Respondent’s brief which are set out herein below:-

(i). As a third party to the contract of employment, whether a legally enforceable relief has been sought against the 2nd Respondent?

(ii). Whether at all material times relevant to this suit the 2nd Respondent acted within the powers allowed by the statute creating the 1st Respondent?

Incidentally, the 2nd Respondent did not specify any of the grounds of appeal where the two issues so formulated are derived from. The Supreme Court has most times reiterated the need to indicate the ground or grounds of appeal from which an issue for determination is derived. See NIGERIAN PORTS PLC VS B.P. PTE LTD. (2012) 18 NWLR (PT.1333) 454 AT 480. Nonetheless after comparing the two issues in the grounds of appeal, I am of the firm view that the two issues as raised in the 2nd Respondent’s brief of argument are not derived from the appellant’s ground of appeal.
As earlier stated, an issue for determination in an appeal must flow from the ground or grounds of appeal filed. Any issue for determination that is not related or derived from a ground or grounds of appeal is deemed valueless for the determination of the appeal and must be discountenanced.

The 2nd Respondent herein did not file any cross-appeal and the Respondent notice has earlier been struck out. The issue of a third party to the contract of employment or the 2nd respondent acting within the powers allowed by statute creating the 1st Respondent not being derived from the appellant’s grounds of appeal, the two issues formulated in the 2nd Respondent’s brief together with supporting arguments are hereby struck out. See AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PT.1314) 454.

In the consideration of this appeal I am minded however to adopt the four issues formulated for determination in the appellant’s brief of argument.

ISSUES 1

Dwelling on this issue, learned counsel for the Appellant referred to a portion of the judgment of the Lower Court at page 474 of the Record to submit that in the absence of illegality it is the duty of the court to give effect to the intention of the parties evidenced from any contractual relationship vide NWOBI VS. ANUKAM (2000) FWLR (PT.18) 323 AT 336 AND TOTAL (NIG) PLC vs MORKAH (2003) FWLR (PT.148) 1343 AT 1362.

He added that having found correctly that the intention of the appellant and the Respondents was that their relationship was intended to be regulated by the Federal Civil Service Rules, the Lower Court erred in not giving effect to its findings by wrongly relying on the case of OKOMU OIL PALM CO. LTD VS ISERHIENRHIEN (2001) 6 NWLR (PT.710) 660 AT 874 because the facts in OKOMU’s case are different from the facts of the instant case and therefore inapplicable to the facts and circumstances of the case. It was further argued that in Okomu’s case, the employer was a limited liability company while in this case the 1st Respondent is a creation of statute.

Reference was then made to Rule 020202 of the Federal Civil Service Rules (as amended) which provides that:-

“Direct appointment to the Federal Public Service may be in any of the following categories:-

(a). As trainees or pupils

(b). On probation in a pensionable post

(c). On non pensionable contract to a non pensionable post or against a pensionable post for a specified period;

(d). Acting appointment.”

It was then submitted that the appointment of the Appellant is covered by (b) above as one on probation in a pensionable post because the terms of employment between the appellant and the Respondents were as contained in the letter of employment which specifically provided that same will be governed by the Federal/Public Service Rules and the appellant had undergone medical test and was certified medically fit for Government Service as required by Rule 020205.

Therefore it was submitted that the Lower Court wrongly relied on the decision in OKOMU’s case to answer the question whether effect should be given to the intention of the parties that the contract be regulated by the Public/Federal Civil Service Rules.

On issue 2, learned counsel for the Appellant submitted that the learned trial judge wrongly believed that the provision of clause 5 in Exhibit P1 which makes provision for one month notice was only a term contained in a master/servant relationship under the common law.

But Exhibit P1 (letter of appointment) issued to the Appellant by the 1st Respondent shows that the appellant was on probation in a pensionable post of Assistant Director. Therefore clause 5 provides for means of termination of the contract during the probation period by either of the parties giving a month’s notice or payment of one month’s salary in lieu of notice as per Rule 020801 of the Federal Civil Service Rules (as amended).

Reference was also made to Exhibit P3, (the letter of termination of appointment) particularly paragraphs 2 and 4 therein to contend that the facts presented in both the letter of appointment and letter of termination of appointment show that the relationship between the parties was governed by the provisions of the Public Service and Federal Civil Service Rules as was represented by the 1st Respondent to the appellant who also relied on same in which case the Respondents are estopped from denying that the relationship between them and the appellant are regulated by the Public Service/Federal Civil Service Rules vide BASHIR ALADE SHITTABEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C 40 AT 57 – 58.

Learned counsel also referred to Rule 02301 under which the Appellant’s appointment was terminated and which relates only to termination of appointment of officers under probation and during the probation period. While Rule 02303 stipulates the steps to be taken for the employment of officers in the public service to be confirmed.

He added that the appellant had put in about a period of four years and nine months before the termination of his appointment and he had passed all the required examinations and served in different categories and for his probationary period not to have been extended as per the Rules the appellant’s appointment is deemed to have been confirmed. The following cases were cited in support OAU VS ONABANJO (1991) 5 NWLR (PT.193) 549 AT 570; IGA VS AMAKIRI & ORS (1976) NSCC VOL. 10 PAGE 599 AT 616 AND OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599 AT 677.

It was also contended that assuming without conceding that the termination of the Appellant’s appointment was done during the period of probation as the letter of terminations stated, the procedure adopted is also irregular and illegal because it contravenes the provisions of Rule 02801 which provided for the procedure to be followed for termination of appointment during probationary period for inefficiency or misconduct. The same goes for Rule 04107 which was not followed by the Respondents in which case there is no valid letter of termination as contemplated under the Federal Civil Service Rules.

Arguing on issue 3, learned counsel referred to the finding of the Lower Court as it relates to the 2nd Respondent, at page 476 of the Record. It was submitted that the 2nd Respondent who was the 2nd Defendant in the Lower Court is described as having powers that borders on the tenure of appointment, emoluments, allowances, discipline, removal, resignation and the conditions of service of the employees of the 1st Respondent by virtue of its powers under the National Productivity Centre Act.

The letter of termination of appointment served on the Appellant clearly stated that it was done with the directive of the 2nd Respondent and by Section 13 of the National Productivity Centre Act, the 2nd Respondent is clothed with some judicial authority and it approved or directed the termination of the appointment of the appellant under the scope of the duties conferred on it by the Act in which case it cannot be denied that the 2nd Respondent is a necessary and proper party to the proceedings.

It was further submitted that the allegations against the 2nd Respondent as contained in the appellant’s pleadings were not controverted by the 2nd Respondent who though filed a statement of defence, did not call any evidence which by law the statement of defence is deemed abandoned for failure to lead evidence in support thereof. Vide AKPAN VS RTQ1 CHURCH (2001) 15 NWLR (PT.736) 328 AT 349.

It was then contended that the learned trial judge was wrong to have held that there was no cause of action against the 2nd Respondent because there was nothing alleged against it in the statement of claim other than the fact that the plaintiff wrote a petition to it complaining about the wrongful termination of his appointment by the 1st Respondent.

On Issue 4, learned counsel noted that the learned trial judge having found that the termination of the appellant’s appointment was wrongful, only ordered the payment of one month salary in lieu of notice as the damages accruable. But the award is such that cannot give the appellant due reparation for the wrongful acts of the respondents and not in accordance with the intendment of the contract between the parties. He added that the learned trial judge would have come to a different conclusion if he considered the provision of Section 16 of the National Productivity Centre Act and Rule 02807 of the Federal Civil Service Rules which relates to the entitlement to pension, gratuities and other retirement benefits for offices whose appointment is governed by the Federal Civil Service Rules.

Responding in their own sole issue for determination which is said to derive from all the grounds of appeal, learned counsel or the 1st respondent contended that the appointment of the appellant by the 1st respondent is governed by Exhibit P1 which is explicit and unambiguous and laid down the terms of the appointment without incorporating the Civil Service Rules.

It was then submitted that the word in the document to which effect is to be given is the content of Exhibit P1 which governs the appointment of the appellant.

The following authorities were cited in support:-

IDUNBOYE OBU VS NNPC (2003) 4 MJSC 131 at 161 AND 168; OKOMU OIL PALM CO. LTD. VS. ISERHIENRHIEN (2001) 6 NWLR (PT.710) 660 AT 679; MOMOH VS C.B.N (2007) 14 NWLR (PT.1055) 504 AT 521-522; AFROTECH TECH. SERVICES LTD VS M. I. A. & SONS LTD (2000) 15 NWLR (PT.692) 730; CBN Vs ARCHIBONG (2001) 10 NWLR (PT.721) 492; ATANDA VS SAFFEIDDINE TRANSPORT LTD (2008) ALL FWLR (PT.401) 985.

He added that, the settled principle of law is that the sanctity of the contract of employment between parties must be observed and Exhibit P1 is the document which governs the relationship between the Appellant and the 1st respondent. Vide CHUKWUMA VS SPDC (1993) 4 NWLR (PT.289) 512

Learned counsel then referred to clauses 5 and 7 of Exhibit P1 to submit that the learned trial judge was right in his conclusion at page 475 of the Record that:-

“I am therefore unable to hold notwithstanding the letter of termination indicating and suggesting that the plaintiffs appointment was terminated under the Federal Civil Service Rule, without more that the Civil Service Rules governs or regulate the plaintiffs appointment.”

This is in the light of the fact that Exhibit P1 under clauses 5 and 7 provide for how the appointment was to be determined and the appellant readily agreed to it in his letter of acceptance.

He added that by virtue of the said Exhibit P1, the 1st Respondent had the power to also issue Exhibit P2 validly terminating the appointment of the Appellant and the authorities relied on by the Appellant to contend that his appointment as a public service appointment does not avail him in view of the plain and unambiguous language of Exhibit P1.

Also citing the case of ALHASSAN vs AHMADU BELLO UNIVERSITY ZARIA (2011) 11 NWLR (PT 1259) 417, it was submitted that the fact that the 1st Respondent is a creation of statute does not without more, raise the legal status of the employees over and above the normal common law master and servant relationship in view particularly of the existence of EXHIBIT P1, nor was the employment of the appellant elevated to an appointment with statutory flavor given the terms of the employment as contained in the said Exhibit P1.

Learned counsel further referred to Section 2(6) of the National Productivity Centre Act to contend that it empowers the 1st Respondent to manage its affairs without resort to the Federal Civil Service Rule or any other Rule.

On the submissions made in support of issue 3 in the Appellant’s Brief of Argument, learned counsel for the 1st Respondent submitted that the Appellant’s pleadings alluded to at paragraph 4.45 of the brief and the meaning ascribed to the portion of the letter quoted at paragraph 4.46 are in conflict with the letter in Exhibit P1 read as a whole.

On the Appellant’s contention in his issue 4 that the learned trial judge was wrong to have awarded N10,000 as damages for wrongful termination of his appointment is untenable and unsupportable. It was submitted that the measure of damages to which a person whose contract of service is terminated is the amount due him for the period of notice which in this case is one month and the award of one month’s salary of N10,000 by the learned trial judge is appropriate. The following cases were cited in support:- CHUKWUMA vs SPDC LTD (Supra) AT 536-537; NIGER INSURANCE CO. LTD Vs ABED BROTHERS LTD (1999) 7 SC 35; IFETA Vs SPDC LTD (2006) 8 NWLR (PT.983) 36; GB OLLIVANT (NIG) LTD VS AGBA BIAKA (1972) 2 SC 127 (REPRINT); INTERNATIONAL DRILLING COMPANY (NIG) LTD VS. AJIJALA (1976) ALL NLR 97.

I had earlier in this judgment ruled that the two issues raised in the 2nd respondent’s brief of argument are not derived from any of the appellant’s grounds of appeal, moreso that the respondent notice was struck out for being incompetent. It is therefore taken that the 2nd respondent’s brief has nothing of substance for this court to consider.

I will deal with issues 1 and 2 as raised by the Appellant. The contention here is that the learned trial judge ought not to rely on OKOMU’S case in holding that the relationship between the appellant and the 1st respondent is not governed by the Federal Civil Service Rules.

In OKOMU’S case the issues in contention were whether the respondent’s appointment was governed by the Rules of the Civil Services Commission of the Federal Republic of Nigeria and whether the statement of claim contained any relief.
The Respondent in the said case was employed by the Appellant as a Chief Accountant. The Appellant in question is a limited liability company owned by the Federal Government. It terminated the appointment of the respondent by a letter stating that his services were no longer required. There were subsequently, series of correspondence between the Respondent’s solicitors and the Appellant resulting in the respondent being paid his terminal benefits. After receiving the said benefits, the Respondent then commenced an action against the Appellant, claiming damages for unlawful termination. His contention at the trial among others was that he was a Public Servant and that the procedure for removing a Public Servant of his rank should have been complied with but this was not done. Also that the applicable procedure was as provided under the Federal Civil Service Rules. Judgment was in his favour to some extent at both the High Court and Court of Appeal but on further appeal to the Supreme Court by the employer, the Supreme Court per UWAIFO JSC gave an exhaustive and thorough exposition into the nature, scope and procedure for appointment and termination of appointment under the Federal Civil Rules. His Lordship also dealt with the onus on an employee alleging wrongful termination of employment; procedure for appointment into and removal from the Federal Civil Service; powers of the Federal Public Service Commission to delegate any of the power conferred on it by Section 156 of the 1979 Constitution; the appropriate authority vested with power to dismiss and discipline a Public Servant; meaning’ purport and scope of “Public Officer”, and whether Civil Service Rules are applicable to corporate entities.
Though the Supreme Court dealt with the issue of whether a limited liability company will be subject to the applicability of the Civil Service Rules wherein it held at page 685 of the Report that:-
“A limited liability company with powers to sue and be sued in its own name and with the powers to act a corporate as a corporate entity cannot be governed by the Civil Service Rules. The spirit of the corporate existence of companies will be negated should such state of affairs be allowed to have sway.”
It must however be conceded that apart from the issue of the status of a corporate body vis a vis employment governed by the Civil Service Rule, the Apex Court gave far reaching decisions on who is a Public Officer and the proper mode of appointment and removal of such Public Officer by the relevant bodies.
In the instant case, I am of the view that in reaching his decision, the learned trial judge did not rely on the facts of the OKOMU’S case as per status of the employer, rather he followed the principles of law enunciated therein, as to when an employer/employee relationship will properly be held to be governed by the Federal Civil Service Rules. Hence he held at page 474 of the records as follows:-
“My understanding of the above quoted paragraphs is that the parties intended or desired to be governed in their relationship by the Federal Civil Service Rules.
Having thus so agreed, can the court give effect to such arrangement by the parties/the Supreme Court case of OKOMU OIL PALM CO. LTD Vs ISERHIENRHIEN (2001) 6 NWLR (PT.710) PAGE 660 AT 674 provides an answer.
The Supreme Court at page 665 of the judgment states as follows on the procedure for appointment into the Federal Civil Service.
“By virtue of rule 02101 of the Federal Civil Service Rules, appointment to public officers in the Federal Civil Service are made on the authority of the Federal Civil Service Commission. These appointments are made either:-
(a) By letter written by the direction of the Federal Public Service Commission; or
(b) By formal agreement between the office and the Federal Government or its appointed agents.
Heads of Department are authorized to appoint eligible candidates to posts in respect of which the powers of appointment have been delegated to them. Prescribed forms are also filled by applicants for senior posts who are then scrutinized before being invited for interview for appointment. It is when it has been satisfactorily established that an employee was appointed under the Federal Government Service rules as provided above that the (sic) any formal agreement between the plaintiff and the Federal Government or its agent as proved in rule 02101.
I am therefore unable to hold notwithstanding the letter of termination indicating or suggesting that the plaintiff’s appointment was terminated under the Federal Civil Service Rule, without more that the Civil Service Rules govern or regulate the plaintiff’s appointment.”
What I can glean from the finding of the learned trial judge as reproduced above is that, by virtue of Exhibit P1 which is the letter of appointment as well as Exhibit P3, the letter of termination. The parties had tacitly agreed that the employment shall be governed by the Federal Civil Service Rules but given the decision of the Supreme Court in OKOMU’S case relating to the procedure for appointment into the Federal Civil Service as underlined in the above set out portion, the court cannot give effect to the said arrangement by the by the parties.
It becomes apposite here to set out the content of Exhibit P1 below, it reads:-

OFFER OF APPOINTMENT

I am directed to offer you appointment on probation as Assistant Director (Information Services & Publication) Grade Level …… 15……….in the National Productivity Centre on the terms of condition laid down in the letter.

2. Your appointment will take effect from the date of your assumption of duty and your service for pension purposes will be reckoned from the same date.

3. You will be eligible, subject to satisfactory services, or for such longer period as may be deemed advisable, dating from your first appointment.

4. You will be subject in all respects to all Condition of Service stipulated from time by the National Productivity Centre as applicable in the Public Service.

5. that, at any time unless you are dismissed, you may terminate your engagement by a month’s notice, in writing, or with the consent, in writing of your Head of Department, by the payment of a month’s salary in lieu of notice.

6. It is also to be understood that as an officer you may be required to serve in any of the branch or Zonal Offices of the National Productivity Centre in Nigeria.

7. I am to request you to inform this office whether or not you are prepared to accept this offer and to take up appointment within two months of the date of this offer. After this period, the offer will lapse.

Furthermore, the appointment is subject to your being passed physically fit for Government Service.

Yours faithfully,

A. Coker

Director-General.

Exhibit P3 which is the letter of termination is no less germane and it is also reproduced below:-

Mr. Al-Bishak,
Information & Publications Dept.,
National Productivity Centre,
Plot 51, Akanbi Onitiri Close,
Iganmu Industrial Estate,
Surulere, Lagos.

TERMINATION OF PROBATIONARY APPOINTMENT

I am directed to inform you that the Hon. Minister of Labour and Productivity has noted with dissatisfaction that during the period of your probationary appointment and to date:

(i) You have committed series of acts of misconduct and insubordination which attracted a number of advices and warnings from your Head of Department and the Management.

(ii). You have a poor track record of quarrelling with all grades of colleagues at work,

(iii). You have been unable to create a conductive working situation at your work place to the extent that no other Department at the centre can accept you,

(iv). You have remained intractable and are not showing any sign of improvement in your behavior.

2. In view of the above, I am further directed to inform you that the Hon. Minister has approved the termination of your probationary appointment with immediate effect, in accordance with Section 02801 of the Civil Service Rules.

3. You are therefore directed to hand over to your Head of Department all official properties in your possession before leaving your office.

4. In view of the difficulty of securing accommodation in Lagos, you are given up to 42 days from the date of this letter to hand over your official quarters to the Office Manager, in accordance with the provisions of Section 14115 of the Civil Service Rules.

5. Wishing you the best in your future endeavours.

Dr (Mrs). S. T. Ajayi
Ag. Director-General.

While I am in agreement with the holding of the learned trial judge that by virtue of Exhibits P1 and P3 coupled with 1st respondent’s averment in paragraph 14 of their statement of defence, the parties intended to apply the Federal Civil Service Rules in their employment relationship. I also agree with the finding of the learned trial while relying on OKOMU’S case to the effect that it is only when it is established satisfactorily that an employee was appointed under the Federal Civil Service Rule 02101 that any formal agreement between the plaintiff and the Federal Government or any of its agent will be established.

However, Exhibit P1 is very clear on the intent of the 1st Respondent to apply the Public Service Rules, though with its own modifications and stipulations shown in paragraph 4 of Exhibit P1. In this regard, I agree in the submission of the appellant’s counsel that it is necessary and legally imperative to give effect to the intention of the parties evidenced in their contractual agreement except there is proof of fraud or illegality. The cases of NWOBI VS ANOKAM (Supra) AND TOTAL (NIG) PLC VS MORKAH (Supra) cited by the Appellant’s counsel are supportive of this principle of law. See also the following cases where it was held that parties are bound to give effect to same. A. G. FERRERO & CO. LTD VS. H. C. (NIG) LTD (2011) 13 NWLR (PT.1265) 592. CHUKWUMAH VS SDPC (1993) 4 NWLR (PT.289) 512; UNION BANK OF NIGERIA VS OZIGI (1994) 3 NWLR (Pt.333) 385; AJAGBE Vs IDOWU (2011) 17 NWLR (PT.1276) 422. It is thus not the function of the court to rewrite the contract of the parties or imput that which is not within the contemplation of the agreement. See also UNION BANK OF NIGERIA VS SAX (NIG) LTD (1994) 8 NWLR (PT.361) 150; P. M. LTD VS THE LTD SAX (NIG) (1994) 8 NWLR (PT.361) 150; P.M. LTD Vs THE M.V. DANCING SISTER” (2012) 4 NWLR (PT.1289) 169 AND NWAOLISAH VS NWABUFOH (2011) NWLR (PT.1268) 600
On this premise and given the established principle of law that parties are bound by the terms of their contractual agreement which courts are also enjoined to give effect to. It follows that Exhibit P1 which is the contract of employment between the Appellant and the 1st Respondent must be followed to the letter except there is proof of illegality or fraud.

Firstly, paragraph 4 of Exhibit P1 (letter of appointment) provides that the appellant will be subject in all respects to all conditions of service stipulation from time by the National Productivity Centre as applicable in the Public Service. My own understanding of it is that the 1st respondent will from time to time stipulate conditions of service as applicable to the Public Service and the appellant must be subjected to it in all respects. In otherwords it is not a wholesale importation of the Federal Civil Service Rules to govern the parties but as may be modified or stipulated from time to time by the 1st respondent. This is made manifest by the provisions of the Act setting up the National Productivity Centre. (1st Respondent) which gives it some measure of autonomy and independence to run its affair. Article 2(4)(a) & (b) of the schedule to Section 2(6) of the Act provides thus:-

2(4) “The council shall have power to make, with the approval of the minister, bye laws for the furtherance of its objectives and in particular such Bye-Laws shall provide for the following:-

(a) Matters relating to the appointment, removal and resignation of the professional and administrative staff of the centre; and

(b) In consultation with the relevant agency of the Federal government, the procedure for and terms and tenure of appointments, emoluments, allowances, discipline and the condition of service of the employees of the centre.”

In this regard it can be safely stated that the 1st Respondent can set out or stipulate its own conditions of service. Which an intending employee may accept or refuse. In the instant case, paragraph 7 of Exhibit P1 requested the Appellant to inform the 1st Respondent whether or not he was prepared to accept the offer and it is clear from his pleadings and evidence that he did accept it along with the terms and conditions stated therein.

The next important point is as per paragraph 11 of Exhibit P1-. It stated thus:-

“I am directed to offer you appointment on probation as Assistant Director (information services and publication) Grade Level 15 in the National Productivity Centre on the terms and conditions laid down in the letter.”

The terms and conditions are contained in paragraphs 2 to 6 of Exhibit P1 which the appellant readily agreed to in his acceptance letter. The main issue here is that his appointment was on probationary basis and in paragraph 3, it was stated that subject to satisfactory service he will be eligible for confirmation after two years or for such longer period as may be deemed advisable.

It is clear from paragraph 3 that the issue of confirmation of the Appellant’s appointment on completion of two years of service with the 1st respondent is not automatic as contended in his brief of argument.
The operative words “or for such longer period as may be deemed advisable” is quite apposite and the parties are bound to honour the terms of an agreement between them.

Learned counsel for the appellant had argued with some authorities in support, that the appellant had complied with all that he was required to do under the Civil Service Rules and more importantly had completed the compulsory two years probation period and had not had the probation period extended by any official act and his appointment had not been terminated during the period. Also, having passed the medically required examination, the 1st respondent is estopped from denying that the employment of the appellant is regulated by the Federal Civil Service Rules because the appointment is deemed to have been confirmed.

My response to that is, given the terms contained in paragraph 3 of Exhibit P1 that the 1st respondent can extend the period of probation for a longer period as may be deemed advisable and the appellant accepted it as part of the conditions of his service, he cannot subsequently import Rule 020301 or 020303 of the Federal Civil Service Rules to prevail over the clear provisions of paragraph 3 of Exhibit P1.
Besides, learned counsel for the appellant referred to rules 02301 and 020303 to insist that his confirmation is deemed automatic after the two years of probation having passed the medical fitness test and handled different positions.
He however omitted to refer to 020302 which specifically emphasized that:-

“Within his probationary period an officer is required to pass the prescribed examination appropriate to his appointment.”

Rule 020303 also repeated the requirement that:-

“To be eligible for confirmation in the permanent establishment, an officer appointed on probation is required to pass the prescribed examination.”

The Appellant who is strongly insisting that his appointment is governed by the Federal Civil Service Rules did not however comply with the important requirement of passing the prescribed examination before confirmation or at least it is nowhere pleaded in his amended statement of claim, neither was it given in his evidence. All he insisted on was that he passed the medical fitness test which is even a basic prerequisite for a new appointment into the service and not for promotion or confirmation.

On the whole it is not in doubt that the Appellant in the absence of any proof to the contrary, was still on probationary appointment at the time his appointment was terminated by the 1st respondent.

It is trite that an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporary during the period of probation hence the process of his removal is not subjected to strict adherence to Rules as is the case with a confirmed officer. That is why the Rules or even Exhibit P1 provided for one month’s notice of termination of the appointment on both sides. Thus in the case of IGWILO VS C.B.N (2000) 9 NWLR (Pt.672) 302
It was held that:-
“In the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for termination. But in the termination of a confirmed officer, the procedure of termination must be followed, otherwise the termination is invalid.
See also ALHASSAN VS ABU, ZARIA (2011) 11 NWLR (PT.1259) 417. In ZUKWU VS UNIVERSITY OF JOS (1990) 7 SC (PT.1) PAGE 18. It was held by the Supreme Court that the sole purpose of putting an employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment and probationary period is a period of observation.
Therefore once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot justifiably complain.
Also in ALHAJI BABA VS NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT.192) 388 it was held that in the termination of the appointment of an officer on probation, no procedure is provided for that need to be followed once the employer is satisfied that there is good cause for the termination.
See also NITEL PLC VS AKWA (2006) 2 NWLR (PT.964) 391 AND SIMEON VS COLLEGE OF EDUCATION EKIADOLOR-BENIN (2014) LPELR (23320) CA.

Graciously enough, the Appellant’s counsel tacitly agreed at page 17 of the appellant’s brief that Rule 02301 under which the appellant’s appointment was purportedly terminated only relates to termination of appointment of officers on probation and during the probation period. That makes matters easier here having earlier found that the Appellant was still under probation as he has not had his appointment confirmed when it was terminated vide Exhibit P3 which also stated so in clear terms.

In the circumstance issue 1 and 2 are hereby resolved against the Appellant.

On issue 3, the Appellant’s contention is that it was wrong for the learned trial judge to have dismissed the Suit against the 2nd respondent on the ground that no reasonable cause of action was disclosed against it.

The relevant portion of the judgment of the Lower Court being challenged is at page 476 of the record and it reads:-

“as for the 2nd defendant, there is nothing alleged against it in the statement of claim other than the fact that the plaintiff wrote a petition to it complaining about wrongful termination of his appointment by the 1st defendant. I therefore find no cause of action against the 2nd defendant. Consequently, the plaintiffs claim against the 2nd defendant is hereby dismissed.”

Curiously enough in the course of a careful perusal of the Record, it was discovered that learned counsel for the 2nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 3508 of the record. In its ruling as contained in the pages 350B and 350C of the Record, the Lower Court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it.
Incidentally there was no appeal against the said Ruling which means that it still subsist despite the fact that the Judge who gave the ruling is not the same Judge who concluded the hearing and delivered the final Judgment. Nonetheless it is still the same court and any such Ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another judge more so that in this case it was in the same court.
When a case is to be tried de novo before another Judge due to the transfer of a former judge hearing it or due to a reassignment order, every Ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting. See SUBERU VS ACB & ORS (2002) LPELR (12207) CA. Where it was held that all the Judges have concurrent jurisdiction. No Judge of a High Court is in a position to review or revisit a decision or order of his brother Judge. A decision, judgment or ruling given by a particular Judge while sitting as a court is that of the court rather than that of an individual judge. See also LIASU vs SALAU (2011) LPELR (3919) CA AND EGBUCHE VS EGBUCHE (2013) LPELR (22512) CA.
In the light of the above, it is my view that the learned trial judge lacked the jurisdiction to review or alter the outcome of the Ruling delivered on 4-3-2008, the court having become functus officio. This issue is accordingly resolved in favour of the appellant.

On issue 4, the Appellant’s compliant herein is that the learned trial judge having found that the appointment of the appellant was wrongly terminated ought to have proceeded to grant the relief of N10,000,000 prayed for in the amended statement of claim as damages against the respondents instead of awarding only one month’s salary in lieu of notice.

Without much ado I will refer back to the finding of this court while considering issue 1 and 2 that the content of Exhibit p1 regulates the contract of employment between the appellant and the respondents and this he equally concedes to. In this regard I draw attention to paragraph 5 therein which stipulates that the termination of appointment shall be with one month’s notice or payment of one month’s salary in lieu of notice by either side. This court had also resolved that the appellant was still on probationary appointment when it was terminated as also reflected in Exhibit P3 (Termination of probationary appointment).

However, in terminating the Appellant’s appointment, the 1st respondent did not comply with the terms of the content of exhibit P1, but rather got the appointment terminated with immediate effect. The act of the 1st respondent in this regard constitutes a breach of the terms of the contract of employment which provides for one month’s notice or one month’s salary in lieu of notice on either side. It follows that the Appellant’s appointment was wrongly terminated. This no doubt justified the finding of the learned trial judge at page 475 of the Record wherein he concluded thus:-

“I am satisfied that the phrase “with immediate effect” by the 1st defendant terminating the plaintiffs appointment is in violation of the terms of the contract agreement which requires that the plaintiff be given one month notice or one month’s salary in lieu of notice. It is in the premises aforesaid that I hold that the terms of the plaintiff’s appointment by the 1st respondent is wrongful……… In the circumstance, the plaintiff is entitled to one month’s salary in lieu of notice which the 1st defendant did not give before terminating his appointment.”

The learned trial judge no doubt treaded the right path and I have no cause to alter his decision on this issue. Where a contract of employment stipulates expressly that it is terminated by the giving of a stipulated period of notice, the damages recoverable for wrongful termination will be the amount of wages or salary the employee would have earned during the stipulated period. For instance, if a contract of employment provides for one month’s notice, then damages will then be one month’s salary or wage. See OBOT VS C.B.N (1993) 9 SCNJ 368 AND WESTERN NIGERIA DEVELOPMENT CORPORATION VS ABIMBOLA (1966) 1 ALL NLR 159; SPRING BANK PLC VS BABATUNDE (2012) 5 NWLR (PT.1292) 83; ONALAJA VS AFRICAN PETROLEUM LTD (1991) 7 NWLR (PT.206) 691; OLATUNBOSUN VS NISER (1988) 3 NWLR (PT.145) 506 AND OLARENWAJU VS AFRIBANK PLC (2001) FWLR (PT.72) 2008.

This issue is accordingly resolved against the appellant on the whole, this appeal is partly allowed.

Consequently, except for the part of the judgment of the Lower Court dismissing the Appellant’s claim against the 2nd respondent which I hereby set aside. The said judgment delivered on the 27th day of January, 2010 by LAMBO AKANBI J. of the Federal High Court, Lagos Division is hereby affirmed.

Parties to bear their costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji, JCA.

I am in complete agreement with his reasoning and final conclusion in the lead judgment.

I allow the appeal in part as in the lead judgment. I also abide by all the consequential orders including that as to costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA and I agree with the reasoning and conclusion so eloquently written and wish to add a few words of mine.

Parties are bound by the terms of their contractual agreement which courts are enjoined to give effect to. In this case, the Letter of Appointment is the contract of employment “Exhibit P1”. The conditions of service are the contract terms stipulated by the National Productivity Center as applicable in the public service. See Article 2(4) a & b of Schedule to Section 2(6) of the National Productivity Centre Act. The appointment was on probationary basis. It stated that it was subject to satisfactory service. The relevant section of his contract of service contained in Exhibit P1 provides thus:

“1. I am directed to offer you appointment on probation as Assistant Director (Information Service Publication) Grade Level 15 in the National Productivity Centre on the terms and condition laid down in the letter…

3. You will be eligible subject to satisfactory service or for such longer period as may be deemed adorable dating from your first appointment…”

The appointment is subject to confirmation in line with Rule 020302 of the Federal Civil Service Rules which provides:

“Within his probationary period an officer is required to pass the prescribed examination appropriate to this appointment”

The sole purpose of putting an employee on probation is to give the employer an assurance that that employee is a fit and proper person to be placed on permanent appointment. Probational period is a period of observation by the employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with an employee cannot justifiably complain. See IHEZUKWU v UNIVERSITY OF JOS [1990] 7 S.C. (PT.1) 18; OLAYINKA KUSAMOTU v. WEMABOD ESTATE LTD (1976) 11 S.C. 279
It is apparent that before the appointment of the Appellant will be confirmed, he must have fulfilled the condition precedent as prescribed.

It is settled law that any party who wishes that, judgment will be given in his favour as to any legal right dependent on the existence of facts which he asserts must prove that those facts exist. See Section 131 of the Evidence Act 2011. Nowhere in the record was it shown that the Appellant satisfied the condition precedent requiring him to pass the prescribed examination before confirmation nor was there any pleading to that effect. See IGWILO V. CBN (2000) 9 NWLR (PT.672) 302; OLORUNTOBA-OJU V. ABDUL-RAHEEM 39 NSCQ 105.

For this and other reasons in the lead judgment, I too allow the appeal in part and abide by the orders made.

Appearances

Abubakar ShamsudeenFor Appellant

AND

Chris Okeke
Charles EdekiFor Respondent