FEDERAL ROAD SAFETY COMMISSION v. MICHAEL OLADELE IDOWU
(2016)LCN/8241(CA)
RATIO
LABOUR LAW: EMPLOYMENT OF STATUTORY FLAVOUR;WHETHER THE COURT MUST CONFINE ITSELF TO THE TERMS OF CONTRACT OF SERVICE BETWEEN THE PARTIES WHICH PROVIDES FOR THEIR RIGHTS AND OBLIGATIONS
The fact that an organization or authority is a creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour. The Court must confine itself to the terms of contract of service between the parties which provides for their rights and obligations. See Fakuade V. O.A.U.T.H (1993) 5 NWLR (Pt 291) 47. In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599 the appointment and termination of the status and office of Professor which the Appellant held was protected by Sections 7, 13, 14 and 15(b) of the University of Lagos Act. Reinstatement is not ordinarily the remedy for breach of contract of service. See Imoloama v. W.A.E.C (1992) 9 NWLR (Pt 265) 303. per. JAMES SHEHU ABIRIYI, J.C.A.
LABOUR LAW: BREACH OF CONTRACT OF SERVICE; WHETHER REINSTATEMENT IS ORDINARILY THE REMEDY FOR BREACH OF CONTRACT
Reinstatement is not ordinarily the remedy for breach of contract of service. See Imoloama v. W.A.E.C (1992) 9 NWLR (Pt 265) 303. per. JAMES SHEHU ABIRIYI, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 17th October, 2007 in the Federal High Court of Nigeria, in Osogbo, Osun State. The Respondent was the plaintiff. The Appellant was the Defendant.
The claim of the Respondent against the Appellant was for the following:
1. A declaration that the termination of the plaintiff’s employment is ultra vires, unfair, unjust, wrongful, in breach of his constitutional right of fair hearing, the rules of natural justice and pro tanto a nullity.
2. An order re-instating the plaintiff to his employment.
The facts of the case are brief. According to the Respondent, he was employed by the Appellant. On the 21st September, 2005, he was on patrol with three others. They arrested a motorcyclist for overloading and their team leader directed the driver of their vehicle to take the motorcyclist to the police station. While the other team members were around their vehicle waiting for the driver to come back a surveillance team came for searching.
The Sector Intelligence Officer entered the patrol vehicle and started searching. Within a short time, he said he felt something in a hole in the chassis of the Vehicle. He asked the patrol team if they were aware of anything in the vehicle. They said they were not. He then invited them to the base.
The next day a panel beater was invited. The panel beater opened up the chassis. The sum of N200 (two hundred Naira) in various denominations was found.
On 25th September, 2005 a Federal Road Safety Disciplinary Committee was set up for the Respondent.
He was charged for possession of money, conspiracy to extort money and improper dressing.
On possession of money and conspiracy to extort money, he was discharged and acquitted.
On improper dressing, he was given “a minor entry.”
On 15th May, 2006, he was served a termination of appointment letter Exhibit MO I, II even though the punishment for minor entry does not lead to termination.
However, according to the defence witness on 21st September 2005 four of them were on a surveillance trip and they saw the patrol team on the road.
When he searched the patrol vehicle he discovered a hole. He put his thumb inside. He felt a ramp and he tried to bring it out. It was not possible. He called his colleague Paul Ope who did the same. They asked the patrol team to come to base.
The following day he sent for a panel beater who came and opened “the place” and they saw a ramp of money inside. There was N100 note, one N50 note, 4 pieces of N10 note and two pieces of N5 note, all amounting to N200.
The surveillance team wrote and submitted a report and the patrol team was tried according to FRSC Laws.
The lower Court entered judgment in favour of the Respondent.
The Appellant appealed against the judgment by filing two notices of appeal on the 2nd June, 2008, 6th June 2008 and 29th December 2008. On 2nd September 2008, Appellant filed an amended notice of appeal which was deemed duly filed and served on 18th November, 2009. On the 11th April 2013, the Appellant filed a further amended notice of appeal which was deemed duly filed and served on 17th September 2013. The further amended notice of appeal contains ten grounds of appeal from which the Appellant presented the following issues for determination:
a. Whether the Court has jurisdiction to entertain this suit in the light of the contravention of the mandatory provisions of Sections 97 of the Sheriffs & Civil Processes Act (sic)
b. Whether the learned trial judge was right in holding that Section XI(E) of The Maintenance of Discipline (Amendment) 1997 is contrary to the provision of the Constitution and to that extent null, void and of no effect.
c. Whether the learned trial judge was right in holding that the termination of the employment of the Respondent was ultra vires, unfair, unjust, wrongful, in breach of the constitutional right of fair hearing and against the rules of natural justice and pro tanto a nullity.
d. Whether the employment of the Respondent had statutory flavour, thereby justifying the order by the learned trial judge ordering the reinstatement of the Respondent to his employment.
e. Whether on the evidence on record, the trial Court was right in granting the relief it granted against the Appellant.
The Respondent adopted the five issues for determination formulated by the Appellant.
The appeal was therefore argued on the following briefs:
1. Amended Appellant’s Brief of Argument dated 8th April 2013, filed 11th April 2013 but deemed duly filed and served on 17th September, 2014.
2. Amended Respondent’s Brief of Argument dated 13th October 2014 filed on 15th October 2014 and deemed duly filed and served on 2nd June 2014.
3. Appellant’s Reply Brief of Argument undated but filed on 2nd June 2015.
On issue 1, learned counsel for the Appellant submitted that the writ of summons in this case was served on the Appellant in Abuja outside jurisdiction of the trial Court without compliance with the mandatory requirement of Section 97 of the Sheriffs and Civil Process Act. The writ of summons, it was submitted, was not endorsed for service on the Appellant outside jurisdiction and is therefore void.
Where an act is void, it was submitted, then it is in law a nullify. The Court was referred to Union Beverages Ltd v. Adamite Co Ltd (1990) 7 NWLR (Pt 162) 348, Owners of the MV Arabella v. NAIC (2008) 11 NWLR (Pt 1097), Bello v. National Bank of Nig Ltd (1992) 6 NWLR (Pt 246) 206 at 217 – 218 and Nwabueze & Anor v. Okoye (1988) 11 NWLR (Pt. 91) 664.
The writ of summons in the case having been issued and served without due compliance with the mandatory provisions of Section 92 of the Sherrifs and Civil Process Act is a nullity, it was submitted, and should be set aside.
On issues 2 and 3, it was submitted that the lower Court erred in law in holding that Section XI (E) of the Maintenance of Discipline (Amendment 1997) was contrary to the Constitution FRN 1999.
It was submitted that the decision of the lower Court is not borne out by either the pleadings or evidence led at the trial. The constitutionality or otherwise of the said section, it was submitted, was raised for the first time in the course of Respondent counsel’s final address. It was submitted that a serious miscarriage of justice was occasioned when the lower Court made a finding and pronouncement on a matter which was not presented for determination in the suit. We were referred to Nkado v. Obiano (1997) 5 NWLR (pt 503) 31 at 57, Onamade & Anor v. African Continental Bank Ltd (1997) 1 NWLR (Pt 480) 123 and Akaniwo v. Nsirim (1997) 9 NWLR (Pt 520) 255.
It was submitted that where a Court on its own makes out a case for a party or makes a finding or pronouncement on a matter which was neither pleaded nor supported by evidence an appellate Court will be right in setting aside the finding. We were referred to Ngene v. Igbo (1991) 7 NWLR (Pt. 203) 358 at 369 – 370 and Agbabiaka v. Saidu (1998) 10 NWLR (Pt. 571) 534 at 548.
Even if the issue arose for determination in the suit, the decision of the lower Court would still not be supported, it was submitted.
The allegation against the Respondent, it was submitted, was simply for serious misconduct, that is, serious breach of the Appellant’s Regulations on the Maintenance of Discipline. This assertion, it was submitted, finds support in Chapter 4, 030411 of the Public Service Rules, 2005 which authorizes an employer to take disciplinary action against an officer whether or not criminal actions had been instituted against such an affected person in any Court.
The Court, it was submitted, will be wrong in reading into the letter of termination of employment a reason not stated therein.
The Respondent, it was submitted, failed to show in what manner the decision of the Appellant terminating his employment was ultra vires and in breach of the constitutional right of fair hearing. The Respondent, it was submitted, must plead and give specific details of how the action of the Appellant complained of is ultra vires, null and void. Failure to do this will amount to taking the Defendant by surprise as it would be difficult for the Defendant to know what case to answer to at the trial.
The Respondent, it was submitted, also had the burden of proving that their trial by the FDC for violation of Section 11(e) and (f) of the Regulation violated his constitutionally enshrined rights to be tried by a Court of law where there is an allegation of the commission of a crime against them.
The trial Court, it was submitted, ought to have dismissed the Respondents case as it was not enough for the Respondent to merely state that his employment is governed by the Civil Service Rules. The relevant rules applicable to the matter, it was submitted, should have been brought out by the pleadings. It is not part of the duty of the learned trial judge, it was submitted, to go on a voyage of his own to produce evidence for the plaintiff.
On issue 4, it was submitted that the lower Court erroneously held that the employment of the Respondent is governed by statutory provisions that is, that the employment had statutory flavour by taking congnisance of the statutory nature of the Respondent’s employer instead of the nature of the Respondents employment.
It was submitted that before an employment can have statutory flavour the statute must expressly make it so, otherwise the employment will have to be treated on the basis of the common law principle of master and servant.
It was submitted that the terms and or conditions of the Respondents employment were solely drawn up by the Appellant without reliance on the enabling statute. Exhibit MO 1 (Respondent’s letter of appointment), it was pointed out provides in paragraph E thereof as follows. “That you or the Commission may terminate your employment by a full month’s notice or payment of one month’s salary in lieu of notice.” This, it was submitted is hardly the character of an employment with statutory flavour. The employment, it was submitted, lacked statutory flavour.
The lower Court, it was submitted, failed to give a factual or legal basis for its decision that the Respondent’s employment had statutory flavour.
It was contended further that the Respondent neither pleaded nor led evidence that his appointment belongs to a pensionable cadre.
On issue 5, it was submitted that the decision of the lower Court was not supported by evidence led at the trial.
It was submitted that if the trial Court had evaluated the Appellant’s evidence in its entirety, it would not have come to the conclusion to set aside the decisions of the Appellant and granting the relief sought. It was again, submitted that the lower Court departed from the pleadings as well as the evidence led by the parties in arriving at its decision.
On issue 1, learned counsel for the Respondent submitted that Appellant was trying to give evidence at paragraph 5.1.5 page 7 of the appellant’s brief that the Appellant resides and carries on business outside the area of jurisdiction of the Federal High Court sitting at Osogbo. That there was nothing like that on the record.
The Federal High Court, it was submitted, had jurisdiction throughout Nigeria and the expression “out of jurisdiction” under the then extant Federal High Court Rules has been expressly defined to mean “outside the Federal Republic of Nigeria”. We were referred to Order 13 Rule 31 of the Federal High Court Rules 2000 applicable when this suit was tried.
The writ of summons used in this case, it was pointed out, has two addresses: one at Abuja and the other alternative address introduced by OR was, Old Ikirun Road, Osogbo.
The Appellant it was further pointed out, was served at Osogbo. This, it was contended was evident from the memorandum of appearance filed with address of the Appellant at Osogbo, showing that the alternative address existed.
It was submitted that the Appellant had accepted service at the Osogbo address and having filed an unconditional memorandum of appearance endorsed with the Osogbo address and having participated till the end of the trial can no longer complain of non-compliance with the Sheriffs and Civil Process Act or any innocuous issue of service.
It was submitted that a party who was served with a writ not properly endorsed for service outside jurisdiction who files unconditional appearance and participates actively in the proceedings would be deemed to have waived his right to complain and is in Law precluded from doing so.
Learned counsel relied on Ibrahim v. Balogun (1999) 7 NWLR (Pt 610) 25, Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6, Ezomo v. Oyakhire (1985) 1 NWLR (Pt 2) 195 all referred to and followed in Job Charles (Nig) Ltd v. Okonkwo (2002) FWLR (Pt 117) 1067 at 1085.
It was submitted that the Federal High Court Civil Procedure Rules 2000 by Order 13 Rule 6 permitted government agencies to be served at their address within jurisdiction, which was what happened in this case as evidenced from the memorandum of appearance.
On issues 2 and 3, it was submitted that the lower Court was right in holding that Section Xi(e) of the Maintenance of Discipline Amendment Regulations 1997 was unconstitutional and a nullity. Regulation Xi(e), it was submitted enacted a presumption of guilt for anyone who was a part of a patrol team, once an amount in excess of N50 is found in the patrol car on the ground or in the bush. The patrol team is presumed guilty unless they have declared the amount in excess of N50.
This, it was submitted, is contrary to the presumption of innocence entrenched in the Constitution.
It was submitted that the argument on strict liability was not raised at the lower Court and was not properly raised before this Court. It was submitted that the lower Court never pronounced on it and this Court never granted leave to raise it.
In this case, we are not dealing with a criminal offence per se it was submitted, but with regulations that affect the civil rights of the plaintiff.
It was submitted that the Appellant’s appeal to the Public Service Rules 2005 amounts to giving the case a new colour. That it was never the case of the Appellant that the Respondent was terminated under the Public Service Rules. In any case the procedure under the Public Service Rules is even more cumbersome and was not shown to have been complied with.
The Court was urged to hold that Regulation XI (e) is contrary to the words and principles of fair hearing in Section 36 of the Constitution and to that effect unconstitutional and void.
It was submitted that the respondent challenged his termination and the entire process leading to it including the regulation relied upon, the evidence led on it and the vires of those who awarded him punishment.
It was submitted that when a party claims to have acted under a law, the onus is on him to satisfy the Court that that law was complied with. This it was submitted, is particularly relevant in case of a statutory pensionable employment like the one held by the respondent in this case which enjoys a presumption against pre-mature termination. We were referred to P.H.M.B. v. Ejitagha (2000) FWLR (Pt. 9) 1510.
The appellant, it was submitted, had a duty to prove that it complied with the law setting it up, the Public Service Rules to summarily terminate the Respondents employment.
On issues 4 and 5, it was submitted that it was belated to argue that the employment did not enjoy statutory flavour.
It was submitted that the respondent?s case simply is that he holds a pensionable statutory employment and has sufficiently laid those facts before the Court. That the appellant’s witness did not controvert the (plaintiffs) respondent’s evidence leaving the respondent’s case that he held pensionable civil service appointment uncontroverted. That the witness in fact affirmed the Respondents stand. That the Appellant also supplied the statutes and the lower Court merely applied them.
Having placed those conditions of service before the Court to show that his employment had statutory flavour, and the Appellant failing to show a defence thereto the re-instatement order by the lower Court and the damages, it was submitted, is the right remedy.
In the Appellant’s Reply Brief of Argument learned counsel for the Appellant re-argued issue 1 which is on Section 97 of the Sheriffs and Civil Process Act.
A reply brief is intended to afford the Appellant an opportunity to deal with new points arising from the Respondent’s brief. It is not another chance to re-argue the case he has already presented in his brief. See Order 18 Rule 5 of Court of Appeal Rules. The Respondent merely responded to the arguments of the Appellant on Section 97 of the Sheriffs and Civil Process Act. It was not a fresh point raised by him. The re-argument of the issue by the Appellant was unnecessary.
Section 97 of the Sheriffs and Civil Process Act is for the benefit of the Defendant. The endorsement to the writ required by Section 97 of the Act informs the defendant that a writ has been issued in another state. So the Defendant can waive the requirement for endorsement. This he can do by proceeding with the trial as the defendant did in this case after becoming aware of the irregularity. The defendant is deemed to have waived his right to insist on the proceedings being set aside. See Odua Investment Co. Ltd v. Talabe (1997) 10 NWLR (Pt 523) and Panalpina World Transport Holding AG v. Ceddi Corporation Ltd & Anor (2011) LPEL R-4827.
In this case, as learned counsel for the Respondent rightly pointed out, the Appellant filed an unconditional memorandum of appearance and participated in trial to the end. He cannot now be allowed to raise the issue of non-compliance with the Sheriffs and Civil Process Act which he is deemed to have waived.
Issue 1 is therefore resolved in favour of the Respondent.
In my view the other issues which call for determination in this appeal are issues (c) and (d). These are: (c) whether the learned trial judge was right in holding that the termination of the employment of the Respondent was ultra vires, unfair, unjust, wrongful in breach of the constitutional right of fair hearing and against the rules of natural justice.
d) Whether the employment of the Respondent had statutory flavour, thereby justifying the order by the learned trial judge ordering the reinstatement of the Respondent to his employment.
Where an employment is governed by rules and regulations backed by statute, such as Civil Service Rules as to how the employment is made and determined, a person who claims to be a public servant and seeks the protection of those rules and regulations must show that he was employed subject to those rules and regulations otherwise he cannot rely on them as protecting his employment.
b) An employment with statutory flavour, though basically creating a service relationship goes beyond the notion of ordinary master and servant whose contractual obligation can anyhow be effectively brought to an end albeit in breach of contract for which the only remedy is damages.
c) The fact that an organisation or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of special character which make the employment one with statutory flavour. See Idoniboye- Obu v. N.N.P.C (2003) 2 NWLR (Pt 805) 589 at 620.
The fact that an organization or authority is a creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour. The Court must confine itself to the terms of contract of service between the parties which provides for their rights and obligations. See Fakuade V. O.A.U.T.H (1993) 5 NWLR (Pt 291) 47.
In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599 the appointment and termination of the status and office of Professor which the Appellant held was protected by Sections 7, 13, 14 and 15(b) of the University of Lagos Act.
Reinstatement is not ordinarily the remedy for breach of contract of service. See Imoloama v. W.A.E.C (1992) 9 NWLR (Pt 265) 303.
At page 132 of the record of appeal the lower Court in its judgment stated thus:
“?The termination of the plaintiff’s employment by the FDC is null, void and of no effect, And I so hold.”
On the pleadings and evidence of the Respondent the above finding in my view was irrelevant. This is because Respondent’s case was in respect of the termination of his appoint by the Appellant on the 15th May 2006. The lower Court therefore had no reason to concern itself with any purported termination of Respondent’s appointment by the FDC.
At page 130 of the record of appeal the lower Court stated as follows:
“With all the defendant attached to his 26 Paragraphs Statement of Defence which included letter of acceptance, provisional offer of appointment, FRSC established as para military under FRSC Act Cap 141 LFN 1990 as amended by Decree 35 of 1992, condition of service FRSC Discipline Regulation pursuant to Section 5 para (e) of FRSC Act Cap 141 LFN 1990 and FRSC Regulation on the Maintenance of Discipline (Amendment) 1997. It can be said that the employment was beyond master and servant relationship.”
Apart from the letter of provisional offer of appointment Exhibit MO1, none of the documents attached to the statement of defence was tendered in evidence. The lower Court therefore wrongly relied on them to find that the appointment had statutory flavour. As they were not tendered by any of the parties or demonstrated one way or the other by any of the parties in Court, the lower Court wrongly reverted to the statement of defence to read the documents attached to it. A trial is a public demonstration of the cases for the parties. And the function of the Court is to decide between the parties on the basis of what has been demonstrated and tested in Court. See Duriminiya v. COP (1961) NNLR 70.
The Respondent was appointed by letter of provisional offer of appointment Exhibit MO1, 1 which reads as follows:
Our Ref FRSC/HQ/A/3
Date: 12th December, 1997.
IDOWU MICHAEL O.
PROVISIONAL OFFER OF APPOINTMENT
Sequel to your successful completion of the training programme conducted by Road Safety Commission, I write on behalf of the commission to offer you an appointment on probationary period of two years as RMI on salary grade level RSS12/1, with effect from the date you assume duty on the following conditions:
A. That this appointment is subject to ratification by the appropriate Management Committee, and you should understand that you can be terminated in the event the Management decides not to ratify this appointment or found, you to be corrupt.
B. That while you remain a temporary employee, your appointment will be on month-month basis pending offer of confirmation or otherwise as in (a) above.
C. The appointment is subject to your passing a Medical
Examination conducted by a Government Medical Officer
in the Federation of Nigeria.
D. Submitting your birth certificate or a sworn declaration of age in lieu thereof.
E. That you or the Commission may terminate your appointment by a full month’s notice or payment of one full month’s salary in lieu of notice.
F. That so long as you remain in this Commission’s services, you are liable to be transferred to any part of Nigeria.
G. That while you are in the Commission, you are bound by the oath of Secrecy, and all other rules and regulations of the Commission.
H. That while you remain on Temporary Employment, you will only be eligible for leave/leave grant after six months satisfactory service.
I. Until our new condition of service is produced, you will enjoy all provisions as obtained in the Federal Public Service.
J. Your duties will be determined by your reporting officer or by the Commission from time to time.
Please let us know within 30 days from the date of this letter whether you accept this offer. If we do no hear from you within this period, we will assume that you are not interested and will therefore proceed to declare the place vacant.
However, if you do accept, please inform us in writing with four passport photograph, duplicate of appointment letter and completed certificate of assumption of duty duly signed by your Head of Department/Unit.
Yours faithfully,
DIRECTOR OF ADMINISTRATION & FINANCE FOR: CORPS MARSHAL & CHIEF EXECUTIVE FEDERAL ROAD SAFETY COMMISSION.
The letter of termination of appointment, Exhibit MO1 II also reproduced hereunder reads as follows:
Our Ref: FRSC/XSR11/A&S/DISC/TA/Vol.3/32
15 May, 2006
EO Orunmuyi (SRM) M9408-01543
MO Idowo (sic) (SRM) M9801-042V
OO Ademola (SRM) M9009-00543
Ufs:
The Sector Commander
Federal Road Safety Commission
Osun State Sector Command
RSII.1
Osogbo
TERMINATION OF APPOINTMENT
References:
A. FRSC/RSIIHQ/ADM/SM/D/vol.2/26 dated 7th Dec, 2005
B. FRSC/XRSHQ/A&S/DISC/IM/vol.3/36 dated 18th April, 2006
1. Your services with the Federal Road Safety Commission are no longer required. Your appointment is hereby terminated with immediate effect.
2. You are to handover all FRSC properties in your possession including Uniforms and Identity Card to the Sector Commander, who will clear you of same and any other indebtedness to the Commission.
3. You are advised to report to ACM (F&A) RSHQ, Abuja for your entitlements, if any.
ENGR, BG IBRAHIM
ASSISTANT CORPS MARSHAL
ACM (ADMINISTRATION & SUPPLIES)
FOR: CORPS MARSHAL I; CHIEF EXECUTIVE
It is clear from Exhibit MO1 1 paragraph E in particular that the appointment could be terminated by any of the parties by a month’s notice or by a full month’s salary in lieu of notice.
Exhibit MO1 II advised the Respondent to report for his entitlements in Abuja.
In my view on the face of Exhibits MO1 I and MO 1 II reproduced above, it cannot be said that the termination of the appointment of the Respondent was ultra vires, unfair, unjust, wrongful, in breach of the constitutional right to fair hearing and against the rules of natural justice and to that effect a nullity.
Issue (c) is therefore resolved in favour of the Appellant.
As I pointed out earlier, the lower Court found that the appointment had statutory flavour on the basis of documents attached to the statement of defence and which were not in evidence before it. In my view that was wrong. From the pleadings and evidence adduced by the respondent, there was nothing to show that his appointment had statutory flavour. There was therefore no basis for the order re-instating the Respondent in the employment of the Appellant.
Issue (d) is also resolved in favour of the Appellant.
Issues (c) and (d) having been resolved in favour of the Appellant this appeal should be allowed. It is allowed by me.
The judgment and orders of the lower Court in suit No FHC/OS/CS/24/2006 are hereby set aside and the claim of the Respondent dismissed.
No costs awarded
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Appearances
Babatunde Adewusi with him, Mazi Afam OsigweFor Appellant
AND
M. O. AgboolaFor Respondent
