ENGR. OLUSUNMADE AGBE-DAVIES v. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION & ANOR
(2011)LCN/4306(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of February, 2011
CA/L/472/2007
RATIO
TERM OF EMPLOYMENT: WHETHER THE RIGHT TO A TERM OF EMPLOYMENT IS A CONSTITUTIONAL RIGHT
It is trite that the right to a term of employment may be a statutory right, but it can certainly not be a constitutional right. See OGWUCHE V. M.B.A. N.W.L.R. 175 (PART. 366) page 4. PER HON. JUSTICE MOHAMMED AMBI-USI DANJUMA, J.C.A.
RELIEF: WHETHER THE COURT CAN GRANT A RELIEF NOT SOUGHT BY THE PARTY
It is unfortunate that he cannot be granted any remedy as a party cannot be granted a relief he has not sought or asked for. See ADO IBRAHIM & CO. LTD. V. B.C.C. LTD (2009) 15 N.W.L.R. (PART.1058) 538 N.D.D.C. V. A.I.C. LTD (2003) 2 N.W.L.R. (PART. 805) 360. PER HON. JUSTICE MOHAMMED AMBI-USI DANJUMA, J.C.A.
RELIEF: WHETHER A PARTY SHOULD NOT BE GRANTED RELIEF NOT SOUGHT BY THE PARTY
… the decision of this court in suit NO. CA/L/780/09 BETWEEN “THE MT MAKHAMABET” & 2 ORS. V. THE INCORPORATED TRUSTEES OF INDIGENOUS SHIPOWNERS ASSOCIATION OF NIGERIA & 1 ANR. delivered on 18th February 2011, Per Mshelia, JCA, at page 14 of the Judgment, the learned justice said thus:- “It is apparent that the learned trial Judge exercised his discretionary power arbitrarily by granting the Respondents reliefs which they did not ask for. It is trite law that a party should not be granted relief not sought by the party. See ADO IBRAHIM & COMPANY LIMITED V. B.C.C. LIMITED 2009 15 N.W.L.R. (PART. 805) 538 and NNDIC V. A.L.C. LTD. (2003) 2 N.W.L.R. (PART. 805) 360” PER HON. JUSTICE MOHAMMED AMBI-USI DANJUMA, J.C.A.
CONSEQUENTIAL ORDER : MANNER THROUGH WHICH THE COURT SHOULD MAY MAKE A CONSEQUENTIAL ORDER
There is no doubt that the trial court had discretionary powers to make consequential orders. But in making such an order, the court must exercise its discretion judicially and judiciously. See OYEYEMI v. IREWOLE LOCAL GOVERNMENT (1993) 1 N.W.L.R. (PART. 269) 462. PER HON. JUSTICE MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
ENGR. OLUSUNMADE AGBE-DAVIES – Appellant(s)
AND
1. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION
2. ATTORNEY-GENERAL OF LAGOS STATE – Respondent(s)
HON. JUSTICE MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant herein had taken out a Writ of summons by which he claimed at the High Court of Lagos State the following reliefs:
“1. A declaration that his purported retirement from the services of the Defendant is in his breach of his constitutional right to remain in their service until age 60 years and therefore null and void and of no effect whatsoever and an order reinstating him unequivocally to his employment.
2. An order of injunction restraining the Defendant whether by themselves, the Government of Lagos State or any of their agents and/or agencies from interfering with or denying him the benefits accruing from his employment.
3. An order of injunction restraining the Defendants, the Government of Lagos State or any of their agents and/or agencies from interfering in anyway whatsoever with his occupation of his residence at No. 1, Adebisi Omotola Close, Victoria Island, Lagos.”
Pleadings were exchanged and amongst which was a counter claim by the 1st Defendant.
In the counter claim, the 1st Defendant had also claimed amongst other reliefs as follows:-
“a. A declaration that the 1st Defendant/Counter Claimant is entitled to take possession of Adebisi Omotola Close, Victoria Island, Lagos.”
At the conclusion of hearing, the trial court dismissed the Suit on the ground that the claim failed in respect of all the reliefs sought, while the counter claim was also struck out on the ground that it had been abandoned as the evidence led was at variance with the pleadings.
Dissatisfied with the aforesaid Judgment, the Plaintiff/Appellant filed this appeal vide a Notice of appeal dated 1st November, 2005 and filed on the same date.
The Notice of Appeal is predicated upon 7 Grounds of Appeal which together with their particulars thereof are reproduced herein-under:-
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when he held “I that have examined the said Standard Conditions of Service of Lagos State Parastatal. It was not enacted into law or made pursuant to any statute. That it was compiled into the Volumes of the laws of Lagos State 1994 does not translate it into a law once it was never enacted into law either as a substantive or subsidiary legislation. Within the Volume 1 of the Laws of Lagos State where counsel referred to and where the said Standard Conditions and Administrative Guidelines can be found, they occupy pages 180 to 232, sandwiched between Caps 10 and 11 of the Laws of Lagos State. Expressly at the beginning thereof is the indication that they are not pursuant to any principal legislations. They are what they claim to be, standard conditions of service and administrative guidelines. Not law, not statutes and definitely not subsidiary legislations. The mere description of a document as a regulation, even by a public corporation does not make it a subordinate legislation. See KATTO V. C.B.N (1999) 6 N.W.L.R. (PART. 390).”
PARTICULAR
i. The Administrative Guidelines for Parastatals Organization in Lagos state were issued as Legal Notice Number 16 of 1981 which is gazette as No. 37 in Volume 14 of Lagos State of Nigeria Official Gazette.
ii. The said Guidelines as contained in Volume 1, laws of Lagos State of Nigeria 1994 at page 218 is a compilation of supplements to the Lagos State of Nigeria Official Gazette Extraordinary which culminated in the Lagos State Legal Notice No. 6 of 1986 (L.S.L.N.)
iii. The Standard Conditions of Service for Lagos Sate Parastatals compiled at pages 180 to 217 of Volume 1, Laws of Lagos of Nigeria 1994 came into being vide Lagos State Legal Notice Number 15 of 1981.
iv. By Section 2 of the aforesaid Standard Conditions of Service, it is stipulated that “… These conditions of service shall come into effect from January 1, 1981 and shall be read in conjunction with circular instructions and Gazette notices on the same subject issued on or after the date of the commencement of the standard conditions of service.”
v. By virtue of the Lagos State Development and Property Corporation Law, Cap. 82, contained in Volume 4 of the Laws of Lagos State of Nigeria 1994, section 4(3) thereof, it is stipulated that “For the avoidance of doubt, it is hereby declared that the foregoing provisions of this section relate only to the capacity of the Corporation as a statutory Corporation and nothing (sic) in the said provisions shall be construed as authorizing the disregard by Corporation of any enactment or law.”
vi. The decisions in KATTO V. C.B.N. (1999) 6 N.W.L.R. (PART. 607) 390 and ADMS V. L.S.D.P.C. (2000) 5 N.W.L.R. (PART. 656, 291 relied on by the trial Judge do not support the view that the Standard Conditions of Service and the Administrative Guidelines (supra) are not part of the Laws of Lagos State.”
2. The learned trial Judge misdirected himself in law and on the facts upon his finding that “it is common grounds that the conditions of employment of the claimant are basically as stated in his letter of appointment, Exhibit P1, and the Standard Conditions of Service for Lagos Sate Parastatals.” He went on to hold that by implication, allegedly decipherable from Exhibit P1, the claimant’s employment was totally at the discretion of the Lagos State Government and the 1st Defendants.
PARTICLARS:
i. All the parties by their pleadings and written submission conceded that the Standard Conditions applied to the employment of the claimant.
ii. Exhibit P1 which is the letter of appointment of the claimant recognized that the Standard Conditions of Service of Lagos State Parastatals applied, amongst others, to the employment of the claimant.
iii. Exhibit P1 also recognized that compulsory retirement age as contained in Clause II.I of the Standard Conditions is sixty (60) years.
3. The learned trial Judge erred in failing to direct himself that there is a clear cut distinction between the termination of an appointment and compulsory retirement from service as per the applicable terms or conditions of service of the claimant.
PARTICULARS
i. The claimant’s appointment was not terminated but he was retired as manifested from Exhibit P3 which is a letter dated 12th July, 1999 retiring the claimant.
ii. Under the conditions of service, termination is one of the four ways by which an officer like the claimant could leave service.
iii. The only reason given for the premature retirement of the claimant on the face of Exhibit P3 is that the recommendations of the Panel of Enquiry into the affairs of the 1st defendants had been ratified by the State’s Executive Council and as the decision was to retire the claimant from the services of the Corporation forthwith.
iv. Section 28 of the Administrative Guidelines applied stricto sensu before a decision can be taken to dispense with the services of the claimant before attaining the age of 60 years.
4. The learned trial Judge erred in law in raising the issue suo motu as to whether the Administrative Guidelines and the Standard Conditions form part of the Laws of Lagos State and then deciding the issue without giving the parties an opportunity to address on same and in a manner contrary to the claimant’s right to fair hearing recognized under the Constitution of Federal Republic of Nigeria 1999.
PARTICULARS
i. The final submission of the 2nd defendant who is the Chief Law Officer of Lagos State Government conceded that “The 1st Defendant being a parastatal of the State Government the conditions of service of its employees is being regulated by the Standard Conditions of Service for Lagos State Parastatals Laws of Lagos state Vol. 1 2004 with a similar Provision in the Laws of Lagos State Vol. 1 Laws of Lagos State (six) 1994.”
ii. It was never in issue that the Standard Conditions was not part of the Laws of Lagos State.
iii. None of the defendants contested the validity of the Administrative Guideline.
iv. The time tested principle laid down and revisited by the Supreme Court in cases like DIPCHARIMA V. UMAR ALI (1974) NSCC (VOL, 9) 596 at 597; GOVERNOR OF GONGOLA STATE V. TUKUR (1989) 4 N.W.L.R. (PART. 117) 592; ADEGOKE V. ADIBIE (1992) 5 N.W.L.R. (PART. 242, 400) EHOLOR V. OSAYANDE (1992 6 N.W.L.R. (PART. 240, 524; OYEKANMI V. NEPA (2000) 12 S.C. (PART. 1) 70 and OKERE V. AMADI (2005) 5 S.C. (PART. 1) was not adverted to.
5. The learned trial Judge misdirected himself in law and on facts when he refrained from determining in any event whether the retirement of the claimant was null and void in relations the Standard Conditions and Administrative Guidelines which were admittedly applicable to the relationship even if not cognizable as statutory provisions as ultimately decided by the trial Judge.
PARTICULARS
i. The trial Judge had jurisdiction to determine whether the retirement (not termination) of the claimant was lawful or not given the conditions admittedly applicable.
ii. The character and/or nature of the terms of employment did not prevent the court from doing justice.
iii. The court is not precluded from making a pronouncement on the legality or otherwise of the retirement of the claimant even if his employment did not have statutory flavour.
6. The learned trial Judge was in error in law in striking out the counter claim of the 1st defendant instead of dismissing same.
PARTICULARS
The counter claim had been exhaustively canvassed by the parties to it and a dismissal should have been the proper order to make.
7. The whole Judgment is against the weight of evidence.
Appellant filed the Appellant’s brief of argument on 6th June, 2008 and within time while the 1st and 2nd Respondents each filed its respective brief of argument out of time upon leave granted and their briefs were deemed filed and served on 16th March, 2010 and 10th June, 2010 respectively.
The Appellant also filed a reply brief to the 1st Respondent’s brief on 30th March, 2010. At the hearing of the appeal, J. D. Oloyede Esquire learned counsel appearing for the Appellant adopted the Appellant’s two briefs and aligns the 5 issues formulated to the seven Grounds of Appeal and urged that the appeal be allowed.
The 1st Respondent, through its counsel Bamgbala, Esquire adopted its brief of argument and asked that the appeal be dismissed; so also the 2nd Respondent adopted its own brief of argument and asks that the appeal be dismissed.
The questions or issues for determination as framed by the Appellant for the determination of this appeal are herein-under reproduced:-
1. Whether there was a breach of fair hearing as enshrined under the 1999 Constitution of the Federal Republic of Nigeria when the lower court raised the issue of whether the Administrative Guidelines for Parastatals Organization in Lagos State and/or the standard conditions of service for Lagos state Parastatals compiled at pages 190 to 211 Volume 1, Laws of Lagos state of Nigeria 1994, form part of Laws Lagos state without allowing parties or their counsel an opportunity to address him on the issue before dismissing the Appellant’s claim on that sole issue (Grounds 1, 2 and 4.)
2. Whether the employment of the Appellant is, consequent upon the resolution of issue No. 1 above, of “statutory flavour” (Ground 3).
3. Whether the retirement of the Appellant having regard to all the evidence and the surrounding circumstances, is in accordance with the applicable provisions of the standard conditions of service for Lagos state parastatals as contained in Volumes 1 at page 180 laws of Lagos state of Nigeria 1994 and the Administrative Guidelines for parastatals organization and Government owned companies in Lagos state, also contained in the laws of Lagos State of Nigeria, Volume 1 of 1994 (Ground 7).
4. Whether the lower court was in any event precluded in any way from determining whether the Appellant was lawfully retired in accordance with the applicable terms and conditions even if issue raised suo motu was validly taken (Ground 5).
5. Whether the lower court ought to have dismissed the counter claim of the 1st Respondent instead of merely striking it out (Ground 6).
By the 1st Respondent’s Brief of Argument dated 8th September 2008 and filed 9th October 2010 pursuant to the order of this court, the 1st Respondent formulated 3 issues for determination.
They are:-
1. Whether the trial Judge came to a correct decision when he held that upon a consideration of the terms of the contract of the claimant there was no statutory flavour element to justify a constitutional force of granting the claimant a right to remain in employment until age 60 years and or a right to reinstatement (Grounds 1, 4 and 5).
2. Whether on the whole, on the consideration of the pleadings, evidence and relevant provisions of the law, the Judgment of the learned trial court was valid when he dismissed the reliefs of the claimant as regards his claim that the Defendant/Respondents be restrained from interfering (Grounds 2, 3).
3. Whether the learned trial Judge was right or not in striking out the counter claim of the 1st Defendant/Respondent/Counter claimant (Ground 6).
The 1st Respondent by his brief of argument also raised an objection to the issue No. 1 of the Appellant. He says, the issue does not relate to, i.e. the issue does arise from the Grounds of Appeal filed. He submits that the ground No. 7 which is an omnibus Ground of Appeal contends that “the Judgment is against the weight of evidence.”
He submits that the issue not been related to a Ground of Appeal should be discountenanced or struck out. DAHIRU V. KAMALE (2005) 9 N.W.L.R. (PART. 929) at 8 especially at page 33, paragraph E-G and OWHONDA V. EKPECHI (2003) 17 N.W.L.R. (PART. 849, page 326 were referred to.
I have looked at the Grounds of Appeal, and I think that even an omnibus Ground of Appeal is a Ground of Appeal. So long as it raises the question of the non justification of the Judgment on the evidence led at the trial, the issue of the standard conditions of service of parastatals not been complied with obviously can be properly attached or linked to the complaint on the weight of evidence.
The complaint has no basis, as after all if the question or issue framed is answered, whichever way, it will answer the complaint as to whether or not the decision is or is not against the standard condition of service as contained in the Guidelines and therefore is or not against the weight of evidence. The objection has no basis. The invitation to have it struck out is refused.
I observe also that the 1st Respondent in his brief of argument at page 14 paragraph 7.3 thereof contended that there was no breach of fair hearing by the trial court, this is what the learned counsel said:-
“The duty of a court is to give a party adequate opportunity to canvass points of law and present evidence and to review these in the Judgment. The learned trial Judge has discharged this burden in the proceedings at the lower court. The claimant has surely not discharged the burden that fair hearing has been breached in the proceedings at the lower court.”
The 2nd Respondent also adopted the 2 issues formulated by the 1st Respondent and adopts all the argument therein.
I shall, however determine this appeal on the issues formulated by the Appellant as all the issues of the two Respondents are subsumed therein including all the arguments raised by them.
I shall proceed into the argument of the respective parties without delving into restating the facts of the case leading to the Suit and consequent appeal, as the facts appear apparent from the arguments of the respective parties.
ARGUMENTS:
On the 1st issue, the learned counsel for the Appellant submitted that the trial Judge was wrong in raising suo motu the issue that the Guidelines and/or conditions contained in the Volume of the laws of Lagos State do not form part of the laws of Lagos State. Counsel submitted that this exercise had occasioned a miscarriage of Justice.
It was the exposition of learned counsel that parties from their pleading were ad idem in the fact that the Guidelines and/standard conditions of service was applicable to the employment of the Appellant; and that the Judgment of the trial court that they were inapplicable was wrong and had occasioned a miscarriage of Justice against the Appellant who would have had Judgment in his favour were it not for the conclusion reached on the status of the Guidelines and without affording the parties and their counsel the opportunity of addressing on the issue.
Learned counsel for the Appellant relied on the Supreme Court decisions in the cases of OLUGUNDE ATANDA & ANR. V. ALLI LAKANMI (1974) 3 SC 109; GBADAMOSI ADEGOKE V. CHIEF NATHANIEL AGBOOLA ADIBI & ANR. (1992) 5 N.W.L.R. (PART, 242), PAGE 410 PAVEX INTERNATIONAL COMPANY V. I.B.W.A. & ANR. (200) 4 SC (PART. 11,196) 12 SC (PART. 2, 150) in support of his contention that it is wrong for a court to suo motu raise and determine an issue without calling upon the parties or their counsel to address it on that issue raised.
In reply, the 1st Respondent submitted that the standard conditions of service were not a law, statute or legislation if viewed against the meaning ascribed to the terms in the interpretation law of Lagos State, the Guidelines etc.
He however submits that the issue was not raised suo motu as the parties had respectively addressed the court at the trial on the applicability or otherwise of the standard conditions of service to the employment of the Appellant.
Learned counsel referred to pages 193, 204 of the record of proceedings and said the 1st and 2nd Respondents had argued that the employment of the Appellant/Claimant) was not one with statutory flavour. Counsel also pointed out that even the Claimant/Appellant had offered arguments in extenso on the legality or status of the standard conditions for parastatals and Administrative Guidelines. He referred to pages 212 – 218 paragraphs 5.11 of the record of proceedings.
Counsel also pointed out that in the Judgment, the learned trial Judge had reviewed the submissions of counsel and noted the arguments of the claimant at pages 276, 277 – 279 of the record of proceedings and in Judgment.
The 2nd Respondent on his part submits that the trial Judge was right when he held that the terms of contract of employment had no statutory flavour element or constitutional force.
Having studied the respective reply briefs, on the Issue No. 1 as raised by the Appellant I wish to state that the reply address on that issue over shot the mark, with due respect. The simple and direct question on this first issue is whether it did not amount to a denial of fair hearing for the trial Judge to suo motu raise the issue of the Guidelines as not forming part of the laws of Lagos State and to determine same without an input from parties, or their counsel.
It is only this issue that I shall determine as it is after all what was framed by the Appellant, whose case it is. The question here now is not what the real status of those standard conditions of service and Guidelines are. The question is was the issue raised suo motu and without a right of contribution from parties?
A perusal of pages 193 – 204 of the record of proceedings provides an answer to this question. Both sides addressed the court extensively on same before the court reviewed and interpreted same and came to the conclusion it arrived at. This procedure cannot be faulted. It cannot amount to raising an issue suo motu and or denying the parties the right of address thereon.
Issue No. 1 is answered in the negative, therefore. I shall however proceed to discuss issues 2, 3 and 4 together as they are intertwined. Issue 2 of the Appellant asks the question whether the employment of the Appellant was one with statutory flavour. To answer this question one has to have a look at the letter of appointment of the Appellant (Exhibit P1) and the terms and conditions guiding same. Before then, what does the Appellant say in this respect? The appellant’s counsel referred to CENTRAL BANK OF NIGERIA & ANR V. IGWILLO (2007) 4 -5 SC 154 and submits that there are 3 categories of contract of employment to wit; (1) Those regarded as purely master and servant (2) those where a servant is said to hold office at the pleasure of the employee and (3) those where the employment is regulated and governed by statute often referred to as having statutory flavour and that where a contract of employment is of the 3rd genre or category it is protected by statute or laid down regulations made to govern the procedure for an employment discipline of an employee and that any other employment outside that category is governed by terms under which the parties agree to be master and servant. OLANIYAN v. UNVERSITY OF LAGOS (1985) 2 N.W.L.R. (PART. 9) 599 and OGUNKE V. NATIONAL STEEL DEVELOPMENT AUTHORITY (1974) N.W.L.R. 128; FAKUADE V. O.A.U. TH (1993) 5 N.W.L.R. (PART. 291) 47 were referred to.
Appellant’s counsel referred to page 15 of the 1st Respondent’s brief of argument wherein it is admitted that the standard conditions of service of parastatals applies to the contract of employment and says, therefore, that it is a binding regulation similar to if not more compelling than the staff manual in Igwillo’s case.
The counter claimant i.e. 1st Respondent claims arrears of rent and mesne profit in respect of accommodation given to the Appellant. That rent payable is contained in Exhibit P1 and the source of payment is the deduction from salary of the staff. See Section 58 of the standard conditions. This makes the applicability of those conditions a non issue. The Appellant also submitted that pleadings were made in respect of rent and evidence given by the 1st Respondent’s D.W 2 and that they do not establish the rent chargeable under the contract of employment, nor do they relate to mesne profit that became chargeable upon Exhibit D 3 if it had effectively determined the occupancy as a tenant. In any case, Appellant submits that the claim for arrears of rent from October 1999 till date is not supported by the evidence of D.W 2; that he claimed specifically for “average (mean) value for use and occupation.” It was further submitted that if the tenancy had for instance been determined, then the Appellant became a statutory tenant and the incidence of tenancy was inapplicable as sought. See AYINKE V. LAWAL (1994) 7 N.W.L.R. (PART. 356) at 236.
From the assured position of the standard conditions of service, those conditions apply alongside all relevant laws, statutes or guidelines issued by the Lagos State Government in regulating the employment of the Appellant who was a staff of a statutory corporation. Section 2 of the standard conditions of service provides as follows:-
“These conditions of service shall come into effect from January 1st, 1981 and shall be read in conjunction with circular instructions and Gazette Notices on the game (sic) (same?) Subject issued on or after the date of commencement of the standard conditions of service.”
By legal Notice No. 16 of 1981 gazetted as No. 37 of July 20th 1981, Administrative Guidelines for Parastatals Organizations in Lagos State was issued and these guidelines were re-enacted in Volume 1, Laws of Lagos State of Nigeria 1994, at page 218 thereof.
The preamble states at a portion thereof thus. “In the paragraphs that follow the provisions in respect of parastatals shall be deemed to extend also to the statutory corporations and government owned companies.” I therefore agree with the Appellant’s counsel when he submitted that the Appellant’s letter of employment dated July 9th 1987 should be read together with the enabling statute of the 1st Respondent, the standard conditions of service and the Administrative Guidelines in order to determine the terms of his employment by the 1st Respondent and whether the retirement of the Appellant was in breach of all or any of these statutes and regulations.
Exhibit P1 provides for the termination of the contract by either party giving a month’s Notice or payment in lieu of Notice. This marks of the normal master and servant relationship. However, there is the provision for retirement of an employee upon attaining, the age of 60 years, compulsorily and also retirement by either party upon the service of 3 months Notice/or salary in lieu even when the age of 60 years has not been attained.
Exhibit P3 – letter of compulsory retirement is inconsistent with the conditions of employment of the Appellant as it violates the terms that have been incorporated into the laws of Lagos State as shown earlier in this Judgment.
Section 28 of the Administrative Guidelines for Parastatals, Organizations, and Government owned Companies in Lagos State provides as follows:-
“If it appears to the Governing Body that there are reasons for believing that any person employed as member of staff of the parastatal Organization other than the Chief Executive, should be removed from office on the ground of misconduct or inability to perform the functions his office, the Governing Body shall:-
(a) Give notice of those reasons to the person in question;
(b) Afford him an opportunity of making representation in person or in writing on the matter to the Governing Body;-
(c) Consider the representation in a full session of the Governing Body or through the appointments and promotion committee; and
(d) if satisfied that the person in question should be removed as aforesaid, the council may so remove him by an instrument in writing signed on the direction of the Governing Body.”
The prominence of the Governing Body is emphasized and the composition set out at Section 2(1) of the Lagos Sate Development and property Cooperation law as a board of 11 Directors with one of them as the Chairman thereof. The law setting up the 1st Respondent makes it obligatory that it be bound by all enactment and law as are applicable. See Section 4(3) of the Lagos State Development and Property Corporation law Cap 82, Volume 4 laws of Lagos State.
It provides as follows:-
“For the avoidance of doubt, it is hereby declared that the fore going provisions of the section relate only to the capacity of the corporation as a statutory corporation and nothing in the said provision’s shall be construed as authorizing the disregard by the corporation of any enactment or law.”
As submitted by the Appellant’s counsel the Appellant’s employment has a statutory flavour and cannot be determined at the whims and caprice of either party. The case of NIGERIA PORTS AUTHORITY V. EPHRAIM ADEWOGA BANJO (1972) 3 SC 168 at 173 aptly captures this position. In that case, the Apex Court said:-
“He cannot be left in jeopardy of being called upon at any time at the discretion of the Authority to retire at an earlier age before 60”
The Appellant’s retirement can only be intravires if it is done in strict compliance with section 11.1 of the standard conditions of the contract of employment.
Exhibit P 3 suggests that the retirement is pursuant to a disciplinary action on members of staff of the corporation, including the Appellant. Section 28 of the Guidelines reproduced supra provides for the procedure and condition precedent for the invocation of the penalty of retirement as staff discipline. It has to be complied with; else it will be a violation of the statute governing the employment and discipline.
The conditions of service of the Appellant having been provided for and protected by the Guidelines afore quoted the Appellant enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute must be fully complied with. If materially contravened, any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding. See DR. TUNDE BAMGBOYE V. UNIVERSITY OF ILORIN & ORS. (1999) 10 N.W.R.L.R. (PART. 622) 290.
The Appellant herein was issued Exhibit P 7 – i.e. letter inviting him to appear before a panel of inquiry to tell what he knew of the ills complained in the management of the 1st Respondent. This was sequel to petitions written by some unions to the Government and Exhibit D4A i.e. report of the panel was submitted and Government issued its views vide Exhibit D4B and issued Exhibits D 5 – a draft white paper on the panel’s report.
The Appellant who was only invited to clarify on the issues raised in the white paper or petitions cannot be said to have been specifically indicted or invited to appear to defend himself against any known or disclosed offence. See ADENIYI V. GOVERNING COUNCIL, YABA COLLEGE OF TECHNOLOGY (1993) 6 N.W.L.R. (PART. 300) 326.
There is no doubt that the Governor of Lagos State set up a panel of inquiry to investigate the affairs of the Lagos State Development and Property Corporation (LSDPC) following petitions to it per Exhibit P 5 and also upon a further memorandum to the sole Administrator of the LSDPC, Exhibit P 6, the said panel set out into work by sending an invitation (Exhibit P 7) to the Appellant to appear before it to “brief the panel on the activities of your department area by area and bring along relevant information and documents such as:-
(i) (ii) (iii) (iv) (v) (vi) vii). Any other information that will assist the panel on its assignment; 3. Grateful for your prompt attendance.
A.O. ADOKU
(Secretary to the panel).”
It is clear from the Exhibit P7 referred to supra, that the Appellant was not indicted for any offence nor invited to defend himself against any allegation whatsoever.
He was neither confronted with any allegation of malfeasance that warranted a retirement prematurely by the 1st Respondent, nor did the board of the 1st Defendant at any session avail the Appellant with any explanation and upon any invitation in that respect before his abrupt termination by retirement of his employment without a hearing and before the statutory period of 60 years.
He may have had problems, but was not indicted. He was not given notice of any allegation. He was convicted without a disclosed charge and an answer from him. There can be nothing that constitutes a greater affront to the right of fair hearing. It is the cardinal rule of our constitutional jurisprudence and pillar of liberty that no man shall be condemned unheard. No man shall be denied or deprived of his civil rights and in this case, civil right to maintain his gainful employment which is a vested right, save upon due process been followed and a deprivation only upon good cause after due hearing.
See Section 36 of the 1999 Constitution and the cases of IBEZIAKO V. COP. 1963 ALL NLR 400.
Exhibit P 5 and P 6 being petitions to the Military Governor of Lagos State and the sole Administrator of the 1st Respondent Corporation did not specifically refer to the Appellant in name or status or rank. The accusations therein are re-echoed in Exhibits D 4A and D 4B. Appellant was only invited to appear before members of a panel of inquiry set up to investigate the activities of the 1st Respondent and in this words “invited to meet with members of the panel and was expected to brief the panel on the activities of your department, area by area and bring along relevant information and documents such as …”
See Exhibit P 7 being the letter of invitation. The Appellant then appeared and submitted a memorandum which is headed “comments submitted to panel of inquiry into Lagos Sate Development and property Corporation Affairs.” It is Exhibit P 8.
He cannot in all honesty be said to have been invited to answer a charge. He was not notified of any charge or allegation against him as there was none made. It would therefore be a violent infringement of the right to fair hearing of an employee as the Appellant herein to invoke any disciplinary power of the 1st Respondent against him as he was protected by the Guidelines and terms and conditions of service, including the constitution to be given a fair hearing.
Having so considered as above, it is therefore my Judgment that the employment of the Appellant enjoyed a statutory flavour, and was breached by non-compliance with the terms and conditions of discipline as made applicable by the legal Notice No. 6 of 1986 as contained Volume 1 laws of Lagos State, 1994 and Legal Notice No. 15 also contained in the same laws of Lagos State.
From the above view, Issue 2 is answered in the affirmative; that is to say that the employment of the Appellant enjoyed a statutory flavour. Issue No. 3 is also answered in the affirmative. There was a denial of the right of fair hearing by the non-compliance with the terms and conditions of discipline as made applicable by the legal notice in the laws of Lagos State.
On Issue No. 4 it is my opinion that the lower court was not precluded from considering the question whether the Appellant was rightly retiree compulsorily in accordance with the terms and conditions of service. Since the terms and conditions of service had incorporated and made applicable the standard terms of conditions of service and the regulations governing Government Parastatals and Corporations, a challenge to the non application of these regulations in the decision to retire, of necessity made it incumbent on the court to so consider the applicability of the terms, as it was part of the conditions or terms of the contract of employment.
Whether or not it was a statute and part of the laws of Lagos State since it had been shown to be applicable to the contract of employment, the trial court was not precluded from considering whether the terms had been complied with or breached as a contract of employment is governed by the terms thereof. This Issue is answered in the negative.
On the 5th issue, that asks the question whether the trial Judge was right in striking out the counter claim rather than dismiss it when he held that no evidence had been led in respect of the accommodation sought to be recovered from the Appellant.
The Appellant submits that since the subject matter of the counter claim i.e. House occupied by the Appellant as a benefit deriving from the employment had not been identified, as the counter claim and evidence thereon is a departure from Exhibit. D 3 (i.e. Notice to quit) and as evidence of D W 2 and claims on pleadings being different from the arrears of rent claimed in the oral testimony of DW 2 and there being no proof of same by D W 2, the appropriate order would have been a dismissal and not an order striking out the suit.
The Respondents, on their part submit that the order striking out was correct as according to them courts have stayed away from technicalities to doing substantial justice; that the counter claimant led no evidence of No. 1 Adebisi Omotola Close Victoria Island when he gave evidence of No. 1A Adebisi Omotola Close Victoria Island.
The Respondents see it as a mere mis-description and that a second bite at the cherry was rightly granted by the order of striking out. The 2nd Respondent referred to the cases of ALL NIGERIA PEOPLES PARTY V. RETURNING OFFICER, ABIA SOUTH SENATORIAL DISTRICT ORS (2005) 6 N.W.L.R. (PART. 920) at 140 and OKPALA V. IBEME (1989) 2 N.W.L.R. (PART. 102) at 208 and contended that where the claimant’s case could not be supported by the evidence, case should be struck out.
The Appellant had called evidence to ventilate its counter claim; the trial court had made findings that DW2 gave evidence at variance with its pleadings. Counsel submitted that since the notice Exhibit D 3 tendered through D W 2 related to House 1A Adebisi Omotola Close, Victoria Island, Lagos and not No. 1 Adebisi 5, Omotola Close, Victoria Island as pleaded it meant that the pleadings had been abandoned and the evidence led went to no issue.
The case of DR. OSWALD J. VANDER PUYE V. COKER OBADEBO (1998) 3 N.W.L.R. (PART. 541.) at 271 was referred to. Counsel also referred to the fact that, even the Appellant had by Exhibits P9 and P10 clearly disclosed his address to be No. 1 Adebisi Omotola Close and not “1A” as alleged in the counter claim.
The counter claimant therefore knew the property in which the Appellant was in possession. He did not make its counter claim blind. It is not the duty of a court to make a case for a party as a person wins or losses on the strength of his own case. See KONDINYE V. ODU (1962) 1 ALL NLR 468.
The pleadings having been abandoned as the evidence being a departure there from, leaves the counter claim bereft of any evidence justifying same. Accordingly, the averment stands unproved and the Counter-Claimant as Plaintiff is bound to lose his claim as hearing had gone into both sides. The claim ought appropriately be dismissed for want of proof when at the end of the trial it was clear that the property counter claimed was different from that on which evidence was led; what is more the claim for arrears of rent which did not arise from the terms of the employment and which rent was fixed by the standard conditions of service at paragraphs 67 and 67.11 thereof to be deductable from salary at source meant that arrears of rent could not be owing, in law.
From the totality of the above, I am of the view that the counter claim had been heard on its merit and was not proved. Accordingly, the proper order is one of dismissal and not an order striking out as made. After all the counter claim was not limited to only a claim for the recovery of the accommodation. Were that so, it, would have been the view of this court that since the Appellant does not deny the occupation of an accommodation belonging to the 1st Respondent, it would be equitable and just not to dismiss the claim in that respect only, but to non-suit the counter claimant/1st Respondent on the claim for recovery of possession only, as the claimant had not proved his case, yet the Defendant/Appellant has not shown that he is entitled to Judgment in his favour on that head of claim. Issue No. 5 is, however, resolved in favour of the Appellant and appeal on that issue has merit.
From the totality of the aforesaid views on the respective issues raised by the Appellant, it is my Judgment that the Issue 1 fails and all the 4 other issues succeed. It follows therefore that the appeal succeeds in part only and on the 2nd, 3rd, 4th and 5th Issues raised i.e. on grounds No. 3, 5, 6 and 7 of the Notice of Appeal.
This now takes me to the reliefs sought in this appeal. Learned counsel for the Appellant had asked at the conclusion of his submission that all the reliefs sought at the lower court should be granted by this court. The 1st relief sought in the statement of claim and at address at the lower court is for a declaration that his purported retirement from the services of the 1st Respondent is in breach of his constitutional right to remain in service until 60 years and therefore null and void and of no effect whatsoever and an order reinstating him unequivocally to his employment.
It is trite that the right to a term of employment may be a statutory right, but it can certainly not be a constitutional right. See OGWUCHE V. M.B.A. N.W.L.R. 175 (PART. 366) page 4. There is therefore no constitutional guarantee nor breach of such a right in favour of the Appellant herein.
At best, what could in the circumstance annure in favour of the Appellant would have been an order of reinstatement to his employment, if the circumstances justified same.
However, this court does not make an order in vain, as nature, it cannot make an order that cannot be enforced. The Appellant herein pleads at paragraph A2 of the statement of claim that he was born in December 1946; states in his evidence under cross – examination at page 117 of the record thus – “I appeared before the panel, it was to discuss my memorandum. I was 53 years old when I was retired.” This was in 1997. See page 116 of the record; also evidence in chief at page 117.
That being the case, the Appellant is by simple arithmetical calculation now over 64 years old. This is well beyond the age of 60 years provided for compulsory retirement. He cannot now be reinstated. He however made no claim for damages for the abrupt truncation of his protected employment before age 60.
This court cannot in the circumstance grant any remedy, as the declaration sought has been shown to be in-appropriate and the order of re-instatement sought cannot be granted as there is nothing to protect or restrain. I should say at this stage that although where there is a right, there is a remedy as is expressed in the latin maxim UBI JUS IBI REMEDIUM; in this case the Appellant’s right to remain in his employment until 60 years and to be retired before that age only upon compliance with some statutory regulation, and Guidelines have been breached, but the remedies sought cannot be granted in law.
Can he be granted any monetary compensation? It is unfortunate that he cannot be granted any remedy as a party cannot be granted a relief he has not sought or asked for. See ADO IBRAHIM & CO. LTD. V. B.C.C. LTD (2009) 15 N.W.L.R. (PART.1058) 538 N.D.D.C. V. A.I.C. LTD (2003) 2 N.W.L.R. (PART. 805) 360.
For the foregoing reasons, the appeal herein succeeds in part only. The reliefs sought succeeds only as relating to the order striking out the counter claim. I set it aside and substitute thereto an order dismissing the counter claim as it was an arbitrary exercise of discretion. See the decision of this court in suit NO. CA/L/780/09 BETWEEN “THE MT MAKHAMABET” & 2 ORS. V. THE INCORPORATED TRUSTEES OF INDIGENOUS SHIPOWNERS ASSOCIATION OF NIGERIA & 1 ANR. delivered on 18th February 2011, Per Mshelia, JCA, at page 14 of the Judgment, the learned justice said thus:-
“It is apparent that the learned trial Judge exercised his discretionary power arbitrarily by granting the Respondents reliefs which they did not ask for. It is trite law that a party should not be granted relief not sought by the party. See ADO IBRAHIM & COMPANY LIMITED V. B.C.C. LIMITED 2009 15 N.W.L.R. (PART. 805) 538 and NNDIC V. A.L.C. LTD. (2003) 2 N.W.L.R. (PART. 805) 360″
There is no doubt that the trial court had discretionary powers to make consequential orders. But in making such an order, the court must exercise its discretion judicially and judiciously. See OYEYEMI v. IREWOLE LOCAL GOVERNMENT (1993) 1 N.W.L.R. (PART. 269) 462. I am of the view that the said order striking out the counter claim instead of dismissing it was wrong as the Appellant had made out a case for its dismissal. Every person shall be entitled to his proven claim. The order made ought to be set aside.
In summary and for the avoidance of doubt, it is declared as follows:-
1. That there was no breach of fair hearing when the trial court raised the issue of the applicability of Parastatal Guidelines and Standard conditions and Rules of service of the 1st Defendant to the Employment of the Appellant.
2. That the employment of the Appellant enjoyed statutory flavour but not constitutional flavour.
3. That the retirement of the Appellant was not in accordance with the applicable statutory Rules and was also in breach of the constitutional right to fair hearing.
4. The lower court was not precluded from determining the validity of the retirement of the Appellant.
5. The trial court ought to have dismissed the counter claim and not to merely strike it out.
6. The order striking out the counter claim at the lower court is set aside.
7. Order: the counter claim is dismissed.
Appeal succeeds in part.
Accordingly, and for the avoidance of doubt the Judgment of the Lagos State High Court delivered by J.O.K. Oyewole, J. on 7th October 2005 in Suit No. ID/2709/99 is, subject to the findings and declaration made herein above affirmed.
Costs: There shall be no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have read before now the leading judgment just delivered by my learned brother, Danjuma, J.C.A. I am entirely in agreement with his reasoning and conclusions. I only wish to add few words of mine in agreement. As regards issue 1, I am of the firm view that there was no breach of fair hearing as claimed by the appellant. A careful perusal of the record particularly pages 193-204 showed that parties and their counsel were afforded opportunity to address the court on the issue that the guidelines and/or conditions contained in the volume of the Laws of Lagos State do not form part of the laws of Lagos State. It is therefore not correct to say that the learned trial judge raised the issue suo motu and that parties were not invited to make an imput before deciding on the issue.
Appellant’s counsel had also urged this court to invoke S.15 of the Court of Appeal Act and grant appellant all the reliefs sought by him before the trial court. Having regard to the facts and circumstances of this case, I agree with my learned brother that appellant cannot be reinstated having passed the age of 60 years. It is also apparent from the reliefs sought by the appellant before the trial court that he never asked for damages as part of his claim. It is trite law that a party should not be granted relief not sought by the party. See: Ado Ibrahim & Company Limited v. B.C.C. Limited (2009) 15 NWLR (Pt 805) 538, NNDIC v. A.L.C. Ltd. (2003) 2 NWLR (pt 805) 360 and Afribank (Nig) Plc. v. A.I Invests Limited (2002) 7 NWLR (Pt. 765) 40 at 68 Paragraphs C – D.
The counter claim was heard on its merit and was not proved. The appropriate order in my view should be one of dismissal and not striking out as made. For the above reasons and the more detailed reasons in the leading judgment, I too partly allow the appeal and abide by the orders made therein cost inclusive.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading in advance the Judgment of my learned brother, Danjuma, JCA just delivered and I agree with him that this appeal succeeds in part. My brother has exhaustively dealt with the salient issues in this appeal.
I have nothing to add but adopt his reasonings and conclusion as mine. I also make no order as to costs.
Appearances
J.D. Oloyede
O. Yonwuren
R. Koku (Mrs.) For Appellant
AND
O. E. Bamgbala
A. Oshinusi (Miss)
Chief State Counsel, Ministry of Justice Lagos State. For Respondent
