- AMOS & ORS V. UNIVERSITY OF IBADAN
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of July, 2002
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
- F. AMOS AND 28 ORS Appellant(s)
UNIVERSITY OF IBADAN Respondent(s)
FRANCIS FEDODE TABAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the judgment of U. T. Soba, J. of the Federal High Court Ibadan on the 6/9/99. The claim before the court contained in paragraph 13 of the Amended Statement of claim reads:
“i. A declaration that the Bulletin 1143 issued on the 2nd day of May 1994 by the defendant purporting the appointment of the plaintiffs to have lapsed immediately after the 9th day of May, 1994 is irregular, illegal, ultra vires, null and void and of no effect whatsoever.
ii. A declaration that the purported Bulletin 1143 terminating the appointment of the plaintiffs from the service on the defendant is irregular, unconstitutional, contrary to the procedure governing the plaintiffs service and of the principle of natural justice and is null and void and of no effect.
iii. An order setting aside the said Bulletin 1143 and to declare that the plaintiffs are still in the employment of the defendant and are entitled to their full remuneration and entitlements as employees of the defendant with effect from that date Bulletin 1143 (that is immediately after 9th May 1994) took effect and until judgment is delivered in this suit.
iv. A perpetual injunction restraining the defendant from terminating the plaintiffs’ appointment otherwise in accordance with the procedure governing the plaintiffs’ service with the defendant.
v. An order that the plaintiffs be immediately reinstated to their various duty posts with the defendant before the issuance of the purported Bulletin 1143.”
Pleadings were filed and exchanged. And at the end of the trial the learned trial judge on the 6/9/99 entered judgment in the following terms:-
“1. That Bulletin 1143 issued on 2nd day of May, 1994 by the defendant is not enough notice terminating the appointment of the plaintiffs from the service of the defendant therefore the termination is wrongful immediately after the deadline that is, by 9th day of May, 1994.
2. That the University of Ibadan governing Counsel the employer of the plaintiffs is competent to issue Bulletin 1143 by virtue of section 4(5) of the University of Ibadan Act and the directives issued in Bulletin 1143 are lawful, constitutional and not contrary to the principle of natural justice or fair hearing.
3. That the defendant having exercised its right to terminate the appointments of the plaintiffs, the latter entitled to damages limited to the amount which they would have earned over the period of notice that is, their full remuneration and entitlements.”
Aggrieved by the said judgment the plaintiffs/appellants appealed to this Court through the notice of appeal filed on the 22/1/99. The notice contained 8 grounds of appeal. In this Court the parties through their counsel filed and exchanged their briefs of argument. The appellants’ Brief of Argument prepared by Benjamin Ogunleye was filed on the 5/4/2001. The respondent’s Brief of Argument was prepared by Chief Ladosu Ladapo, SAN, and it was filed on the 12/11/2001.
In the appellants’ Brief of Argument, Mr. Ogunleye formulated two issues for determination as follows:-
“1. Whether the appointments of the appellants are statutorily governed and protected or not.
2. If the answer to the 1st Issue is in the affirmative whether the trial court was right in not reinstating the appellants to their respective duties in the employment of the Respondent.”
In the respondent’s Brief of Argument, Chief Ladapo, SAN, proposed only one issue for determination and that is –
“Whether the trial judge was right in holding that the relationship between the appellants and the respondent is that of master and servant and that the appellants were each entitled to a month’s notice of termination of their appointments.”
In the appellants’ Brief of Argument learned counsel, Benjamin Ogunleye, made the following submissions. On the first issue he referred to the University of Ibadan Act Cap. 454 Laws of the Federation of Nigeria 1990 by which the defendant was established and section 9(3) thereof and submitted that the employment of the appellants is also governed by the Act aforesaid thus rendering it statutorily governed.
It was his further submission that for the discipline of the appellants section 9(3) of the Act must be followed strictly. With respect to the 2nd issue it was contended that the Bulletin 1143 by which the appellants’ were terminated was ultra vires and void and that the employments were for that reason still subsisting. It was further contended that in such circumstances the proper order which the trial court ought to have made was that of reinstatement. In support of these submissions he relied on SHITTA-BEY V. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC. 40 at 69; ADENIYI V. YABA COLLEGE OF TECHNOLOGY (1993) 1 SCN (Part II) 304 and NITEL V. IKARO (1994) 1 NWLR (Part 320) 350.
In the respondent’s brief of Argument Chief Ladosu Ladapo, SAN, submitted, that the character of an appointment and the status of an employee in respect thereof is determined by the legal character of the contract of employment. He submitted further that where the contract of appointment is determined by agreement of the parties’ simplisiter there is no question of the contract having a statutory flavour. It was his further submission that the fact of a contracting party, organisation or authority being the creation of a statute does not mean that the condition of service of its employees must be of special character ruling out the incident of a mere master and servant relationship, contending that the Court must confine itself to the terms of the contract between the parties. Still on the question of whether the appellants’ employments were statutorily governed and protected he referred to FAKUADE V. OAU TEACHING HOSPITAL BOARD (1993) 5 NWLR (part 291) 47 at 83; BADA V. N.C.A.T.C. (1991) 5 NWLR (Part 192) 308 at 420 and OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (Part 9) 599.
CONSIDERATION OF ISSUES
The starting point in the consideration of the issues involved in this appeal is the finding by the trial High Court that the termination of the appellants was wrongful for non-compliance strictly with the one month pre-termination notice as stipulated in the contract of service existing between the parties and which contract is contained both in the letter of appointment of each of the appellants and the Junior Staff Regulations, Exhibit B4. There is no appeal by the respondent against this finding. The controversy here is the legal effect of the finding. The appellants insist that their contract with the respondent was statutorily governed and protected and that the breach through the termination committed by the latter is a breach of section 9(3) of the University of Ibadan Act Cap. 454 of the Laws of the Federation of Nigeria 1990. It was their submission therefore that the termination, is ultra vires the statutory provisions null and void. The result, it was submitted, is that each of the contracts is subsisting and each of the appellants entitled to be reinstated. The Respondent insists, on the other hand, that the fact of its establishment by the University of Ibadan Act did not raise the status of its contracts with the Appellants beyond those of mere master and servant. It was submitted that although the Respondent was established by Statute, their contracts of service are not statutorily protected and that rather they are governed by the terms and conditions contained in the appellants’ letters of appointment and the Junior Staff Regulations.
What, in effect, is the difference between contract of personal service and those which enjoy statutory protection? ADENIYI V. GOV. COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (Part 300) 426 at 461 is instructive on the point. The Supreme Court Per Karibi-Whyte JSC stated:
“It is important to observe the difference in status between those 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 a unilateral repudiation. It affects no change 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 provisions.”
This principle in the difference had earlier been stated in FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993) 5 NWLR (Part 291) 47 at 63 where the Supreme Court stated a contract with a statutory flavour to be one which conditions of appointment or determination are contained in an enabling statute and which contract is determinable not by the parties but only by statutory preconditions governing its determination.
See also U.N.T.M.B. V. NNOLI (1994) 5 NWLR (Part 363) 376.
It is also settled law that the fact that an employer is the creation of a statute, like the present case, does not mean that the appointment of its employees are those with statutory flavour. In FAKUADE V. OAUTH (supra) at page 63 the Supreme Court Per Karibi-Whyte, JSC said:
“The character of an appointment and status of the employee in respect thereof is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by agreement of the parties simpliciter, there is no question of the contract having a statutory flavour. The fact that the other contracting party is a creation of statute did not make any difference.”
In practical terms therefore the difference between a contract with statutory flavour and that of personal service within or subject to the ordinary incidents of master and servant is mainly the legal consequences of a breach. A breach of statutory provisions relating to the termination or dismissal of a statutorily protected servant means that the termination or dismissal which constitutes the breach is null and void and the contract would be regarded as subsisting thus making the court to grant a declaration for the purportedly terminated or dismissed servant’s reinstatement. This principle formed the basis of the decisions in OLANIYAN V. UNILAG (1985) 2 NWLR (Part 9) 599; SHITTA-BEY V. FPSC (1981) 12 NSCC 28 and LAOYE V. FPSC (1989) 2 NWLR (Part 106) 652.
On the other hand breach of a contract of personal service which is subject to the ordinary incidents of master and servant through the wrongful termination of a servant brings the contract to an end and the courts would not normally order the, servant’ s reinstatement. Therefore a declaration to the effect that the contract still subsists will rarely be made unless under very special circumstances depending on the facts and circumstances of each case. See CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (Part 289) 512, OLANIYAN V. UNILAG (supra) and IMOLOAME V. WAEC (1992) 9 NWLR (Part 265) 303 at 318. In this category of cases, once the court holds that the termination was wrongful the servant is entitled to damages. And where the termination is declared wrongful because of the failure to give the notice as stipulated in the contract of service, the quantum of damages is usually limited to the amount he would have earned over the period of notice required to lawfully terminate the contract. See CHUKWUMAH V. SHELL PET. DEV. CO. (Supra) at 538, 539 & 563; DR. G.S. OBO V. COMMISSIONER OF EDUCATION BENDEL STATE & ANOR. (1993) 2 NWLR (Part 273) 46 at 58 and BRITISH AIRWAYS V. MAKANJUOLA (1993) 8 NWLR (Part 311) 278 at 289.
Let us now examine the instant case in the light of the legal consequences of a breach discussed above. As I stated earlier above the finding by the learned trial judge that the termination of the plaintiffs/appellants was wrongful for non-compliance with the one month’s pre-termination notice is not challenged in this appeal. The question is the appropriate legal consequences of the breach. Section 9(3) of the University of Ibadan Act provides for the procedures for the removal of the Deputy Vice-Chancellor or any other person employed as a member or the staff of the University. Also the letter of appointment of each of the Appellants and the University of Ibadan New Conditions of Service for Junior Staff Exhibit B4 make provisions for the removal of the Deputy Vice-Chancellor or any other person employed as a staff in the University. There are thus two sets of procedures stipulated for the termination of the appellants namely (a) the provisions of section 9(3) of the University of Ibadan Act and (b) the provisions in the contracts of service between the parties comprising the letters of appointments and the University Of Ibadan New Conditions Of Service for Junior Staff. While the appellants contend that it is the former that applies, the respondent contends that it is the latter.
The question is which of these two sets of stipulations applies. FAKUADE V. OAUTH (supra) appears to be quite apposite on this question. Section 9 of the University Teaching Hospitals (RE-constitution of Boards etc.) Act Cap 463 Laws of the Federation of Nigeria 1990 makes provisions for the procedure for the removal of any person employed as a member of the clinical administrative or technical staff of the Hospital. There were also exhibits H and K which constituted the contract of service entered into by the parties therein. The said contract embodied in these exhibits also made provisions for the removal of a staff. The same legal issues raised herein were raised in that case. The provisions of section 9 of the Act notwithstanding, the Supreme Court applied the stipulations contained in the contract of service which was Exhibits “H” and “K”. At page 63 the Supreme Court per Karibi-Whyte, JSC in applying the provisions of the contract said:-
“In the instant case the contract between the parties is clear and unequivocal; the appellant has a contract of service with the respondent. The court must in construing the relationship of the parties confine itself to the plain words and meaning which can be derived from the rights and obligations provided thereunder. Exhibits H and K constitutes the entire provisions and must be construed…”
The case is in all fours with the instant case. It is my view therefore that the provisions of section 9(3) of the University of Ibadan Act notwithstanding, the terms in the contracts between the parties contained in the appellants’ various letters of appointment like Exhibits B1, B2, C1 etc. and the New Conditions of service for Junior Staff exhibit B4 should apply.
There is yet another approach to the problem in controversy. It is in the law of pleadings. It is settled law that a plaintiff who seeks a declaration that the termination of his appointment is a nullity must plead and prove among other things:-
(a) the terms and conditions of his appointment; and
(b) the circumstances under which his appointment can be terminated.
The terms and conditions of service constitute the foundation of any action for wrongful termination or dismissal. As the Supreme Court put it in AMODU V. AMODE & ANOR. (1990) 5 NWLR (Part 150) 356 at 373, the terms of contract of service is the bedrock of a plaintiff’s action for wrongful termination. See also MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (Part 145) 506 at 519, 526 and 527 and SHELL PETROLEUM DEV. CO. LTD. V. ONASANYA (1976) 1 All NLR (Part 1) 425.
The conditions of service relied upon by the appellants were pleaded in paragraph 7 of the Amended Statement of Claim. Paragraph 7 at page 44 of the record of appeal says:-
“The plaintiffs are junior staff whose appointment and procedure to be followed when disciplinary action is to be taken in connection with the people of the same ilk with the Plaintiff are governed by the University Of Ibadan New Conditions Of Service for Junior Staff. The Plaintiffs shall rely on the University Of Ibadan New Conditions Of Service for Junior Staff at the trial of this suit.”
These same conditions of service were also pleaded in paragraph 9 of the Amended Statement of Claim. And the Respondent in response also pleaded the same New Conditions of Service for Junior Staff. It pleaded in addition the letters of appointment of the Appellants. This was the state of the pleadings on which the case was tried and determined. The conditions as laid down in section 9(3) of the Act were not pleaded. Nor were facts about the employments of the Appellants being statutorily protected pleaded. The two issues raised and canvassed in this appeal are all based on the question of whether the appointments of the appellants were statutorily protected; an issue never raised in the pleadings.
In the light of the foregoing considerations and particularly having regard to the principle in FAKUADE V. OAUTH (supra) and the conditions of service pleaded in paragraphs 7 and 7a of the Amended Statement of Claim I agree entirely with the conclusion of the learned trial judge that the employment of the plaintiffs were not statutorily protected and that the contract between the parties to be applied by the Court is that contained in the appellant letters of appointment and the University or Ibadan New Conditions of Service for Junior Staff Exhibit B4. In the event I hold that the contracts between the parties are the ordinary contracts of master and servant. The result is that I resolve both issues raised in the appellants’ Brief of Argument against the appellants.
I agree that the termination of the appellants through Bulletin 1143 was wrongful for non-compliance with the pre-termination notice and for which the remedy for the appellants is not in their reinstatement but rather in damages limited to such amount as they would have earned over the period of notice required to lawfully terminate the contract.
In conclusion I hold that there is no substance in the appeal which is accordingly dismissed. I make no orders as to costs.
DALHATU ADAMU, J.C.A.: I agree.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother F. F. Tabai JCA. I am in complete agreement with the reasoning and conclusion that having identified the contract of employment between the parties here as that with statutory flavour – the court must confirm that any steps taken under the contract must comply strictly with the provisions of the statute applicable to the relationship.
UNIVERSITY OF LAGOS V. OLANIYAN (1985) 2 NWLR (Pt 9) pg 599; PROF. OLATUNBOSUN V. NISER (1988) 3 NWLR (Pt 206) pg 691; UNTHMB V. NNOLI (1994) 8 NWLR (Pt 363) pg 376; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt 80) pg 25.
All the issues for consideration were meticulously considered in the leading judgment. I agree that the appeal lacks merit – and it shall be dismissed. I abide the consequential orders.
- OGUNLEYE, ESQ.For Appellant
CHIEF LADOSU LADAPO, SANFor Respondent