EKSU & ORS v. FAJEMBOLA & ORS (2022)

EKSU & ORS v. FAJEMBOLA & ORS

(2022)LCN/16463(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, April 04, 2022

CA/EK/66/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

EKITI STATE UNIVERSITY, ADO EKITI EKITI STATE & 2 ORS APPELANT(S)

And

MISS FAJEMBOLA AANU MARY & 85 ORS RESPONDENT(S)

RATIO:

AN EMPLOYMENT IS SAID TO HAVE A STATUTORY FLAVOUR WHEN THE APPOINTMENT IS PROTECTED BY STATUTE

An employment is said to have a statutory flavour when the appointment and the determination is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee but any other employment is governed by the terms under which the parties agreed to be employer and employee. In the event of termination strict adherence must be accorded the statute creating the employment and it can not be waived. See MENAKAYA VS. MENAKAYA (2001) 16 NWLR (PT 738) pg 203, EPEROKUN VS. UNILAG (1986) 4 NWLR (PT 34) 162 AND BAMGBOYE VS. UNILORIN (1999) 10 NWLR (PT 622) 290. ABDUL-AZEEZ WAZIRI, J.C.A.

TERMS AND CONDITIONS APPLICABLE TO THEIR EMPLOYMENT

From the avalanche of the documentary evidence tendered before the trial Court it is beyond any equivocation that the Respondents were able to show the terms and conditions applicable to their employment to which the Appellants failed to comply with which is the foundation of their case. The Appellants have not been able to counter the respondents’ stand at all. In the light of the above, I can conveniently resolve issue one against the Appellants and in favour of the Respondents. ABDUL-AZEEZ WAZIRI, J.C.A.

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): This is an appeal that germinated from the judgment of the National Industrial Court of Nigeria Akure (for short NICN) in Suit No NICN/AK/06/2020 delivered on the 28th day of January, 2020 Coram Judice: K D Damulak (J).

The Claimant by their paragraph 27 of their amended statement of facts approached the trial Court and tabled the following claims against the defendants now the present Appellants herein thus:
1. AN ORDER setting aside the provisions of the Ekiti State University, Ado – Ekiti regulations governing the senior staff and the provisions of Ekiti State University, Ado Ekiti regulations governing the service of Junior Staff stating that the employment of confirmed Senior and Junior Staff of the 3rd defendants can be terminated by notice or payment in lieu of notice the said provision being incompatible with the employment status of the Claimants as statutory employees.
2. A DECLARATION that the disengagement of all the Claimants from their appointments vide letters of 5th December, 2019 is illegal, null and void.
3. AN ORDER reinstating allthe Claimants to their appointments to their salaries and allowances from the date of disengagement to the date of judgment and thereafter.
4. AN ORDER directing the Defendants to pay the claimants the three months salaries of the claimants which remains unpaid by the defendants’ pleadings were duly filed amended and exchanged.

The parties consented to the invocation of Order 38 Rule 33 of the Rules of the National Industrial Court 2017 dispensing with oral evidence.

Respective learned counsel filed written addresses after a full blown trial and in a considered judgment the learned trial judge found in favour of the claimants.
He stated thus:
In summary therefore, and for the avoidance of doubts, it is hereby declared and ordered as follows:-
1. The employments of the Claimants with the defendants enjoy statutory flavour.
2. The employment of the claimants with the defendants is regulated by the defendants’ statute, regulations and the claimants’ letters of employment.
3. The claimants employments with statutory flavour cannot be terminated for ‘’services not required’’
4. Disengagement of the claimants by notice or salary in lieu of Notice for services not required is incompatible with their status of statutory employment.
5. The provision of Paragraph 2.46(ii) of the Regulations is incompatible with the provision of Paragraph 2.19 of the Regulations same is hereby struck out.
6. The Defendants did not comply with the provisions of the regulations in disengaging the claimants
7. The disengagement of the claimants in the manner it was done was unlawful, null and void.
8. The Claimants are hereby reinstated to their erstwhile positions in the 1st defendant.
9. The 1st defendant is hereby ordered to pay the claimants their three months’ salaries owed them before their unlawful disengagement.
10. The 1st defendant is hereby ordered to pay the claimants their salaries, emoluments and allowances from the date of their unlawful termination till reinstatement today 28th January, 2021 and subsequently till retirement.
11. The claimants are not entitled to general damages.
12. The defendants are also to pay to each claimant cost of N50, 000.00.
13. The salaries and cost are to be paid within 30 days of this judgment or the amounts will attract 10% interest per annum.
This is the judgment of the Court and it is entered accordingly’.”

Miffed by the above judgment contained on pages 1112-1126 of the record of appeal the Appellants lodged an Appeal to this Hon. Court via their Notice of Appeal on pages 1132-1140 of the record of appeal containing four grounds of appeal shown of their particulars as follows:
GROUND ONE (1)
The learned trial judge erred in law by holding as follows:
‘By the authority of DANIEL M. OGBAJE VS. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR – 11855 (CA) where as in this case, an employee is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer it follows therefore that determination of such appointment for ‘services no longer required’’ is not compatible with the status of the claimants similarly, determination by notice of salary in lieu of notice as contained in the 1st Defendant’s regulation is also incompatible with the status of an employee in the pensionable cadre in the public service of a state I hold Paragraph 2.46 1111 of the Regulations which stops the claimants of the tenure protection granted by paragraph 2.19 of the regulations is incompatible with the status of the claimants’ employment.

GROUND TWO
The trial Court misdirected itself on the facts of this case in holding thus:
‘’Now paragraphs 3 of the letters of disengagement provide as follows:
By a copy of this letter, the bursar is being informed of this development and you are required to liase with his office so as to work out your final entitlement if any.
This paragraph is not and cannot be a reference to three months salaries in lieu of notice which was in law supposed to be paid immediately. I agree with the claimants counsel that three months salaries of the claimants is not something that requires working out. The paragraph is a reference to final entitlements which should include gratuity and any other terminal benefit as provided in the regulations but it cannot be a reference to outstanding salaries and salaries in lieu of Notice.’’

GROUND THREE
The learned trial judge erred in law in declaring the disengagement of claimants/respondents null and void for reason of alleged failure of the defendants/Appellants to pay the Claimants/Respondents three months’ salaries in lieu of notice at the time of their disengagements.
GROUND FOUR
The learned trial Judge erred in law in granting the reliefs in favour of the claimants/respondents and by awarding cost of N50,000.00 in favour of each of the claimants. The records of Appeal were transmitted to this Hon. Court in two volumes 1 and 2 on the 18/8/2021, but deemed properly compiled and transmitted on the 18/1/2022.

Out of the four grounds of appeal, the Appellants distilled two issues as arising for the determination of the appeal duly settled by the learned senior Counsel Dayo Akinlaja (SAN).

The two issues are:-
1. Whether in the entire circumstance of this case, the learned trial judge was not wrong to have nullified the termination of the employment of the respondents from the service of the 1st Appellant (Grounds 1, 2 and 3)
2. Whether the learned trial Judge was not wrong to have granted the reliefs sought by the respondents and ordered a cost ofN50.000.00 each in favour of each of the respondents (Ground 4)

On their part, the respondents nominated a sole issue as arising for the determination of this appeal in their brief of argument duly settled by Olabanjo o. Ayenakin Esq., thus.
1. Whether in view of the pleadings and documentary evidence before the trial Court, the trial Court was right to disengagement of the respondents, granted the reliefs sought by the respondents and awarded cost in favour of the Respondents. (Grounds 1,2, 3 and 4)

In my consideration of this appeal, I shall be guided by the two issues nominated by the Appellants, the undoubted owners of this appeal.

Both the Appellants and Respondents’ briefs of arguments have been duly considered alongside the numerous judicial authorities being relied upon by the contending learned counsel to the parties herein. Each of the line of divide placed reliance on their legal submissions in urging us to allow/disallow this appeal.

RESOLUTION OF THE TWO ISSUES NOMINATED BY THE APPELLANTS:-
ISSUE ONE
1. Whether in the entire circumstance of this case, the learned trial judge was not wrong to have nullified the termination of the employment of the respondents from the service of the 1st Appellant.

I have given an insightful and analytical consideration to the legal submissions proffered in the Appellants/respondents, briefs examined the printed records of appeal consisting of two volumes and made recourse to the legion of Judicial authorities cited by the line of divide as well as the documentary exhibits. The facts that gave birth to this appeal are simple to brevity. The Respondents were the claimants who were disengaged in their employments with the 1st Appellant. While the Appellants were the Defendants who were the employers of the Respondents/Claimants.

Pursuant to letters by the 1st Appellant to the Respondents on the 5th day of December, 2019 captioned disengagements of employments served on the Respondent/claimants on the 6/12/2019 wherein it stated that “services no longer required”. The Respondents through their counsel wrote a letter praying for a reversal of their disengagement but to no avail which prompted their solicitor to write a pre-action notice hence the suit before the trial Court. It is not in dispute the parties are ad idem as to the fact that the employments of the claimants enjoy statutory flavour. The claimants asserted this in their prayers, pleadings and final written address at the trial Court. This also the learned silk rightly conceded when he submitted in his final written as follows:
‘’while it is not in dispute that the employment of the claimants enjoyed statutory flavour, their disengagements were/are in accordance with the prescribed regulations governing their service to the defendant and cannot be faulted. See page 1120 of the record of Appeal’’.

This finding has not been challenged in this appeal and it therefore remains standing like Iroko tree.

Appellants senior Counsel cannot be seen to be blowing hot and cold at the same time, having conceded that the Respondents employments had a statutory flavour then their employment must be determined in accordance with statute creating the 1st Defendant as well as the Regulations made thereunder. See the case of ADEBIYI VS. SORINMADE (2004) ALL FWLR (PT. 239) 950.

From the printed record of appeal the following facts were not disputed at the trial Court:
1. That the claimants were employed by the defendants particularly the 3rd defendant.
2. That the claimants appointment were regularised confirmed and that claimants have since their appointments been promoted.
3. That the claimants are statutory employees of the 3rd defendants having their appointments governed, protected by the law establishing the 3rd defendant and the regulations made there under.
4. That the claimants did not commit any offence before they were disengaged from their appointments. Claimants were not made to face any disciplinary panel.
5. Claimants were not given any notice or payment in lieu before their appointments were disengaged.

In this appeal, the Appellants had the burden to show whether or not the three months salaries and allowances as claimed in paragraph 20 of the claimants amended statement of facts owed them were paid. Paragraph 20 states ‘’claimants aver that while they were in the employments of the defendants they were earning salaries and allowances monthly.
The defendants owed the claimants three months’ salaries arrears as at the date of disengagements.’’

This assertion made by the claimants were never refuted by the Defendants/Appellants. In their consequential amended statement of defence the defendants admitted in paragraph 2 thus:
“The defendants admit paragraph 4,6,7,9,10,11,12,13,14,15,16,17,18,19,20 and 29’’
The legal implication of this is that the defendants admitted that the claimants were not paid the outstanding three months salaries arrears which requires no further proof. See the cases of
-OKENE VS. ORIANWO (1998) 8 NWLR (PT 566) 408.
-AKINYADE OLAIYA VS. THE STATE. LER (2017) SC. 652/2014

– ODEBUNMI & ONOR VS. OLADIMEJI & ORS (2012) LPELR-15419 (CA)
– OGOLO VS FUBARA (2003) 11 NWR (PT. 831) 231.

Let me now raise this question as to whether or not the respondents employments were duly terminated in line with the Ekiti State University regulations applicable to both the senior/junior staff.

To get an answer to this question, I shall hasten to pay a visit to the Claimants’ adopted written statement on oath deposed to by the 11th claimant who represented them. He averred thus in paragraph 18, 19, 21 and 22 thereof:
18. ‘’That to our surprise and in utter and flagrant violation of our conditions of appointment. We, Claimants, were disengaged from our services or appointment vide a letter dated 5th December 2019″
I can identify the letter if shown to me and they are attached as Exhibits G1-G86’’.
19. That our disengagement violates our conditions of service or conditions of appointments in that:
(i) Our appointments and conditions of employment are fixed and we are supposed to enjoy fixed tenure of office until retirement age.
(ii) Under our conditions of service, our retirement age fixed at 65 and none of us is up to 55 years let alone 65 years.
(iii) We did not commit any offence, we were not queried and none of us was made to face any disciplinary panel prior to our disengagements.
(iv) The procedure used to disengage us from our appointments is unknown to our conditions of service and same is wrongful.
21. ‘’That while we were in the employments of the defendants we were earning salaries and allowances monthly. The defendants owed us three months’ salaries arrears as at the date of disengagement
22. ‘’That we were wrongfully, unlawfully and illegally disengaged from our appointments without due regard to our conditions of appointments.’’

On the part of the Appellants, their sole written statement on oath was deposed to by Gboyega Ayodeji Afolabi who was their sole witness. He deposed in paragraphs 7-9 as follows:
7. ‘’I know that the disengagements of the claimants were not revisited because the termination had been rightly alone and in consonance with the said regulations guiding the employment.
8. ‘’reiterate that the claimants were all directing through their letters of disengagement from the University to laise with the office of no Bursar for purposes of working out their kind entitlements if any and if the claimants had done that the issue of their alleged entitlement to three months arrears of salaries would have been mutually sorted out.
9. ‘’The claimants could not be reinstated because their employment had been lawfully terminated in accordance with the regulations governing the employments and the solicitors to the claimants were duly informed vide the letter of the solicitors to the defendants in response to the letter of the claimants’ solicitors. I hereby rely on the letter of DayoAkinlaja& co dated 17/02/2020 marked as Exhibit DA.”

Upon a careful perusal of the above evidence as well as the letters of termination of the Respondents’ appointments/employments, it is not in doubt that the three months salaries arrears were not paid to the respondents/claimants as required by the aforesaid regulation governing their employments. See Ekiti State University Regulation made pursuant to Law No. 122014. See the following cases.
– CADBURY (NIG) PLC VS. ONI (2013) ALL FWLR (PT 665) 251 at 275 paras C-E
– COLLEGE OF EDUCATION EKIADOLOR VS. E.O. OSAYANDE (2010) 6 NWLR (PT. 1191) 423.
– IDERIMA VS. RIVER STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT. 51) 378 AT 403.
– NEPA VS. EDEGBERO & ORS (2000) LPELR – 6884 (CA)
– FEDERAL MEDICAL CENTRE IDO-EKITI & ORS VS. OMIDIORA KOLAWOLE (2012) FWLR (PT. 653) 1999 at 1251

By paragraph 3.14 (iii) of the regulations governing the service of Senior/Junior staff of the Ekiti State University Ado Ekiti 2012 which states thus:
“The appointment of a confirmed staff shall be terminated by council in accordance with the provision of Section 15 of the University Law. Section 15 of the Ekiti State University Ado Ekiti and merging of other Universities Law 2014 states thus.
Retiring age of the staff of the University
(a) The compulsory retiring age of teaching staff in the professional cadre shall be seventy (70 years.)
(b) The compulsory retiring age for other teaching staff shall be sixty-five (65 years)
(c) The compulsory retiring age fornon-teaching staff shall be sixty-five years (65)
(d) Service rendered by any staff after retirement shall be by contract appointment.

ON ISSUE TWO
‘’Whether the learned trial judge was not wrong to have awarded a cost of N50, 000.00 each in favour of each of the Respondent.’’

I have given a hard look at the respective arguments canvassed by learned counsel herein on the issue of costs.

I wish to state that the issue of cost awarded to a successful party against the unsuccessful party is at the discretion of the trial Court seized of the case. An appellate Court can only come when it is shown that the discretion of the trial Courtwas not exercised judicially and judiciously.

Cost normally follows events surrounding the case. A costs order is an instruction issued by a Court or a Tribunal concerning the costs of the proceedings or part of them made at the end of a trial. Costs are ordered separately from the main outcome of the case but generally align with the outcome of the case.
See the cases of
– ANYAEGBUNAM VS. OSAKA (1993) 5 NWLR (PT. 294) P. 449
– OBAYAGBONA VS. OBAZEE (1972) 5 SC P. 247.
– OJIEGBE & ANOR VS. UBANI & ANOR (1961) LPELR -25060 (SC)

Having said this, Appellants have not shown to us why the costs awarded in favour of the Respondents should be set aside.

I find and hold that the trial Court was on a sound footing to have made the award of N50, 000.00 cost each to the Respondents and against the appellants. Accordingly, I hasten to say issue two fails and is resolved in favour of the Respondents and against the Appellants.

In the final analysis, having resolved the two conflating issues against the Appellants and in favour of the Respondents, the destiny of the appeal is more than plain. It is bereft of any tinge of meritand liable to be greeted with a deserved dismissal.

Appeal stands dismissed. The judgment of the trial Court in suit no. NICN /AK/06/2020 is given a clean bill. No order as to costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, Abdul-Azeez Waziri, JCA. I fully agree with the exquisite reasoning and wise conclusion therein.

It is trite law that employments with statutory flavour are statutorily protected in the sense that such employments cannot be terminated unless by strict adherence with statutory provision with regard to such employments. See FEDERAL MEDICAL CENTRE IDO-EKITI & ORS VS. KOLAWOLE (2012) FWLR (PT. 653) 1999, CADBURY (NIG) PLC VS. ONI (2013) ALL FWLR (PT. 665) 251 at 275.
It is beyond doubt the employments of the Respondents have statutory flavour. Unfortunately, the appellants failed to comply with the provision of the Regulations governing the said employment. Administrators in government agencies should not rush toterminate the appointment of their workers without complying strictly with the provisions of law governing such appointment.
In doing this, such compliance should not be subject to speculation but should be evident and manifest on the pages of the letter terminating such appointment otherwise, such intended termination would amount to a nullity. The worker would then remain in service, be entitled to his wages until the termination is validly done.

For the above reason, I resolve issue one against the appellants but in favour of the Respondents.

I also resolve issue two in favour of the Respondents. Costs follow the event. I see no reason to disturb the finding of the lower Court on costs against the appellant. I hold that this appeal is entirely lacking in merit. It is hereby dismissed. The judgment of the lower Court in NICN/AK/06/2020 delivered on 28/1/2020 is hereby affirmed.

Appearances:

Dayo Akinlaja, SAN FCI Arb. with him, Oluwatosin Olanipekun, Mrs.Ayobami Oladimeji, Esq., Adetola Akinsunlola, Mrs. Jeremiah O. Akinlaja, Esq., Abisola Edungbola, miss. For Appellant(s)

Olabanjo O. Ayenakin, Esq. with him, Olatubosun A. Otitoju, Esq., Banjo O. Ayenakin & Co. For Respondent(s)