JOHNSON OMALE V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS. (2011)

JOHNSON OMALE V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS.

(2011)LCN/4469(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of April, 2011

CA/J/139/07

RATIO

CONTRACT OF EMPLOYMENT: CATEGORIES OF CONTRACT OF EMPLOYMENT

The Supreme Court in C.B.N. Vs Igwillo (2007) 4 – 5 SC 154 @ 172 explained the categories of contract of employment thus: “The law is settled that there are now roughly three categories of contracts of employment, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See Olaniyan Vs University of Lagos (1985) 2 NWLR (9) 599. An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.” See also: Imoloame Vs WAEC (1992) 9 NWLR (265) 303; Shitta-Bey Vs University of Lagos (1981) 1 SC 40. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

CONTRACT OF EMPLOYMENT: WHAT MUST BE ESTABLISHED THAT AN EMPLOYMENT IS STATUTORY FLAVOURED

In Salami Vs N,N.N. Ltd. (1999) 13 NWLR (634) 315 @ 331 F – H, Omage, JCA (as he then was) referred to dictum of Uwaifo, JCA (as he then was) in Udemah Vs Nigeria Coal Corporation (1991) 3 NWLR (180) 477 @ 479 wherein he held thus: “The fact that a defendant is a statutory body does not mean that the condition of service of its employees must be presumed to be of a special character … It is the evidence given which shows the character of the appointment.” (Emphasis supplied) In Azenabor Vs Bayero University Kano (2009) 17 NWLR (1169) 96 @ 108 – 109 H – F, this court per Augie, JCA held that it is not enough merely to prove that the employer is a creation of statute, there must be proof that employment is directly governed or regulated by a statute or a section of the statute delegates powers to an authority or body to make the regulations or conditions of service as may be. His Lordship held further: “The rules and regulations, which are claimed by an employee to be part of the terms and conditions of his employment, capable of giving of statutory flavour and to be of protection to the employee must (a) have statutory reinforcement or be regarded as mandatory; (b) be directly applicable to the employee or persons of his cadre; (c) be seen to be intended for the protection of that employment; and (d) have been breached in the course of determining the employment.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL MATTERS

…by virtue of Section 137 of the Evidence Act the burden of proof in civil matters rests on the person who would fail if no evidence were given on either side. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Section 139 of the Evidence Act. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

EMPLOYER/EMPLOYEE RELATIONSHIP: WHETHER WHERE CONDITIONS OF SERVICE EXIST BETWEEN THE EMPLOYER AND THE EMPLOYEE FOR ANY DISCIPLINARY MEASURE BY WAY OF DISMISSAL OR TERMINATION TO BE VALIDLY EFFECTED, IT MUST FOLLOW THE LAID DOWN PROCEDURE UNDER THE CONDITIONS OF SERVICE

…where conditions of service exist between the employer and the employee the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. See: Edet Vs Chief of Army Staff (1994) 2 NWLR (324) 41 @ 58 D – E; P.H.M.B. Vs Ejitagha (2000) 11 NWLR (677) 154 @ 160 A – B; D.A, (Nig.) AIEP Ltd. Vs Oluwadare (supra) @ 359 B – D… PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

TERMINATION OF APPOINTMENT: MEASURE OF DAMAGES WHERE AN EMPLOYEE’S APPOINTMENT HAS BEEN WRONGLY TERMINATED UNDER A COMMON LAW CONTRACT OF EMPLOYMENT WITHOUT STATUTORY FLAVOUR

JUSTICES

K.M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

A.A.B. GUMEL Justice of The Court of Appeal of Nigeria

U. ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

JOHNSON OMALE Appellant(s)

AND

1. UNIVERSITY OF AGRICULTURE, MAKURDI
2. THE COUNCIL UNIVERSITY OF AGRICULTURE MAKURDI
3. THE REGISTRAR UNIVERSITYOF AGRICULTURE, MAKURDI Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Makurdi Division delivered on 5th July, 2006 wherein the court found in favour of the plaintiff (appellant herein) but granted only some of the reliefs claimed. The appellant was dissatisfied with the judgment and filed a notice of appeal dated 23rd September 2006 containing four grounds of appeal.
The brief facts of the case that led to the appeal are as follows: The appellant was a porter employed by the 1st respondent. On 16/9/93, at the close of work, he was accosted by a security guard and questioned as to the contents of his bag. Upon a search of the bag, a large packet of Omo detergent was found. It was alleged that the Omo belonged to the respondents. The appellant stated that he purchased the Omo on his way to work from a supermarket and obtained a receipt. He said that he handed the receipt over to the security guard. On 14/10/93 he was suspended from duty. He was subsequently invited to appear before the respondents’ disciplinary committee where he explained that the receipt for the Omo was with the security guard who took the Omo from him. According to the appellant nothing was heard from the respondents thereafter until 1/9/99 (six years later) when he was invited to appear before the Presidential Visitation Panel pursuant to his letter of appeal to the said panel dated 23/8/99. It was the appellant’s contention that after his appearance before the panel, nothing was heard from the respondents again until he filed an action at the Federal High Court, Makurdi in February 2002.
On the other hand, the respondents alleged that the appellant admitted in writing that he stole the Omo. They also claimed that the appellant was issued with a letter of dismissal but refused to sign for it.
The appellant’s claims as per the writ of summons at pages 6 and 7 of the record were as follows:
1. “Declaration that the suspension of the plaintiff by letter no. R/UAM/JP/1315/VOL.1/40 dated 4th October 1993 in excess of 8 weeks and without pay in breach of Regulation 9(4) of the 1st defendant’s Provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS 01 – 05) is null and void.
2. Declaration that the failure of the defendants to come to a decision on the SUSPENSION within 8 weeks is contrary to the defendant’s Regulations (EUSS 01 – 05) and renders any decision, if any, thereafter null and void.
3. Declaration that the plaintiff has been in the employment of the 1st defendant since October 1993 and therefore entitled to the right, benefits and privileges including his total emoluments attached to the office of porter, deferred or accumulated leaves, promotions in line with what his mates are enjoying.
4. An order of the Court directing the defendants to pay all the arrears of monetary benefits due to the plaintiff from the date of the purported suspension in October 1993, forthwith.
5. Order of perpetual injunction restraining the defendants from interfering with the employment of the plaintiff except as provided for in the contract of service.
ALTERNATIVELY
1. Declaration that the suspension of the plaintiff by letter no, R/UAM/JP/1315/VOL.1/40 dated 4th October 1993 in excess of 8 weeks and without pay in breach of Regulation 9(4) of the 1st defendant’s Provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS 01 – 05) is null and void.
2. Declaration that the failure of the defendants to come to a decision on the SUSPENSION within 8 weeks is contrary to the defendant’s Regulations (EUSS 01 – 05) and renders any decision, if any, thereafter null and void.
3. Order of the court directing the defendants to pay to the plaintiff’s (sic) allowances from the time of the purported suspension until the plaintiff attains the age of 60 years.”
The parties filed and exchanged pleadings and the matter went to trial. The appellant, as plaintiff, testified and called one other witness. He tendered 4 exhibits: Exhibit A (letter of suspension), Exhibit B (letter of appointment), Exhibit C (appeal to Presidential Visitation Panel) and Exhibit D (acknowledgment of appeal letter). The respondents, as defendants, called two witnesses. They did not tender any exhibits. Thereafter both learned counsel addressed the court. In a considered judgment delivered on 5/7/2006 the learned trial judge held thus:
“Even though I have the view that the plaintiff took the Omo from the custody of the defendants, I hold the view that the suspension of the plaintiff in excess of 8 weeks is null and void contrary to the Provisional Regulations of the parties.
2, I declare that the failure of the defendants to come to a decision within 8 weeks is contrary to the defendants’ Regulations and renders any such decision, if any, null and void,
3. I cannot declare relief no. 3 because the plaintiff’s hands are not clean – the Omo he took cannot wash them clean.
4. The order here cannot be granted because the plaintiff allegedly committed a criminal offence of stealing. However, I order the defendants to pay to the plaintiff half of his salaries from the date of the aborted suspension till date of this judgment as damages for breach of chapter 9 paragraph 4 of the Provisional Regulations binding their contract of service. … The account department of the defendant shall write out the monetary entitlements as per the order granted damages for breach of chapter 9 paragraph 4 of the presidential (sic) regulation binding the plaintiff and the defendant. The money is only damages for breach, not allowances, not salaries nor terminal benefits.’
The appellant was aggrieved with this decision and filed this appeal.
In the appellant’s brief dated 10/9/07 and filed on 13/9/07 three issues were distilled for determination:
1. Whether the learned trial Judge erred in law when he refused to grant all the reliefs sought from it by the appellant in the circumstances of the case. (Ground 1)
2. Whether the learned trial Judge erred in law when he assumed criminal jurisdiction in a civil matter that appellant brought before him and in placing the burden of proving his innocence on appellant in criminal allegation sprang (sic) on the appellant at the course of defending the civil suit. (Ground 2)
3. Whether the decision of the learned trial Judge is sustainable by the evidence before the court, (Ground 3)
The respondents in their brief of argument dated and filed on 22/9/07 but deemed filed on 5/2/09, formulated a single issue for determination thus:
Whether the evidence before him amply supported the findings and holdings of the learned trial Judge on all the issues in controversy.
At the hearing of the appeal on 17/3/2011, Mr. S.O. Idikwu, learned counsel for the appellant, leading Mrs. A.A. Idikwu, E.O. Omenyi Esq., and Miss M.A. Popoola adopted and relied on the appellant’s brief and urged the court to allow the appeal. Mr. Timothy Dim, learned counsel for the respondents adopted and relied on the respondents’ brief and urged the court to dismiss the appeal.
Having carefully examined the issues formulated by both parties I am of the view that the appellant’s issue 1 would adequately dispose of the issues in contention in this appeal. The sole issue for determination therefore is: whether the learned trial Judge erred in law when he refused to grant all the reliefs sought from it by the appellant in the circumstances of the case.
In arguing the appeal, learned counsel for the appellant argued that the evidence of the appellant (PW1) and his witness (PW2) that he bought the Omo from Togo Supermarket and was issued a receipt, which he handed over to the respondents’ security guard who accosted him, was unchallenged and ought to have been accepted by the court. He relied on: International Bank of West Africa Ltd. Vs Imano (Nig,) Ltd. & Anor. (2001) 3 SCNJ 160; Sunmonu Olohunde & Anor.Vs Prof. S.K. Adeyoju (2000) 6 SCNJ 470. He referred to the findings of the learned trial Judge at pages 164 – 165 of the record where His Lordship held that the appellant sneaked out of the University premises through a bush path, had no receipt of purchase, and that PW2 the salesperson who allegedly sold the Omo to him did not specifically state that the appellant bought Omo from the supermarket and submitted that the said findings are not borne out by the evidence before the court. He argued that having rejected the evidence of DW1 for being hearsay and the evidence of DW2 for lacking corroboration, there was no basis for the finding that the appellant left the university premises “hidingly”. He argued that having testified that he handed the receipt and the Omo to the respondents’ security guard, the evidential burden shifted to the respondents. He referred to: David Itauma Vs Friday Jackson Akpe Ime (2000) 7 SCNJ 40; Friday Elema & Anor. Vs Princess Christy A. Akenzua (2000) 6 SCNJ 336.He observed that PW2’s evidence that receipts are destroyed after 3 years was not challenged. He submitted that PW2 testified in 2004 while the incident took place in 1993 and argued that the receipts would have been destroyed 8 years before he testified. He submitted that in any event the burden of proving that the appellant stole the Omo rested squarely on the respondents. He referred to Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999.
Learned counsel argued that the matter before the lower court was a civil claim and that the criminal allegation made by the defence required proof beyond reasonable doubt. He referred to Section 138 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990. He observed that the respondents failed to produce the Omo allegedly stolen. They also failed to produce his alleged confessional statement. He contended that since the learned trial Judge rejected the evidence of both of the respondents’ witnesses, the allegation of crime remained unsubstantiated. He submitted that suspicion, no matter how strong could never take the place of proof. He cited the case of: Edet Okon Iko Vs The State (2001) 7 SCNJ 382.
Learned counsel submitted that the failure of the learned trial Judge to grant the reliefs sought on the basis of an erroneous finding that the appellant stole the Omo has occasioned a miscarriage of justice and urged this Court to allow the appeal and grant all the reliefs. He contended that the appellant’s employment has statutory flavour and is therefore protected. He submitted that where a statute/regulation provides for the performance of a particular action in a particular manner, the procedure must be strictly complied with and no other procedure could be followed. He argued that the appellant’s employment could only be terminated in accordance with the statute regulating it, He referred to: UNN Teaching Hospital & Anor. Vs Nnoli (1994) 10 SCNJ 71 @ 85.
In reaction to the submissions of learned counsel for the appellant, learned counsel for the respondents submitted that in civil matters the burden of proof lies on the party against whom judgment would be given if no more evidence were produced on either side. He referred to Section L37(1), (2) and (3) of the Evidence Act. He submitted further that in civil matters the burden of proof is not static and may shift from one side to the other. He referred to Section 139 of the Evidence Act. He argued that the burden was on the appellant to prove that he bought the Omo found on him from Togo Supermarket. He contended that it is only after such proof that the burden would shift to the respondents. He submitted that the appellant did not plead or testify that he left the receipt for the Omo with the security guard. He referred to the evidence of PW2 and argued that the said witness merely testified that the appellant bought some un-named items on the day in question but did not state specifically that he bought Omo. He submitted that the appellant failed to give the respondents notice to produce the receipt allegedly handed over to the security guard. He argued that failure to produce the receipt amounted to withholding evidence and contended that if produced it would have been unfavourable to the appellant. He referred to section 149 of the Evidence Act. He submitted that in the circumstances the learned trial Judge made correct findings of fact, which ought not to be disturbed on appeal. He submitted that it is not the business of an appellate court to substitute its views for that of the trial Judge. He relied on: Chief Frank Ebba Vs Chief Warri Ogodo & Anor. (1984) 4 SC 84 @ 90 – 91; Isah Onu & Ors.Vs Ibrahim Idu & Ors.(2006) All FWLR (328) 691 @ 716 A – D.
On whether the appellant was entitled to the reliefs sought, learned counsel submitted that the appellant was to succeed on the strength of his own case and not on the weakness of the defence. He submitted that the learned trial Judge came to correct conclusions after properly evaluating the evidence before him and making appropriate findings of fact based thereon.
On the contention that the appellant’s employment was one with statutory flavour, learned counsel submitted that an employment enjoys statutory flavour where the conditions of service of the employee are contained in a statute. He submitted that a porter is not one of the principal officers mentioned in the Federal University of Agriculture Makurdi Decree No. 48 of 1992 and the Schedules thereto, particularly schedule 1. He submitted that the appellant’s employment is founded on conditions of service agreed to by the parties. He referred to the conditions of service agreed to by the parties as contained in the letter of appointment tendered as Exhibit B. He submitted that notwithstanding the fact that the 1st respondent is a public institution created by the Federal Government, the appellant’s employment does not enjoy statutory flavour. He referred to: Salami Vs New Nigeria Newspapers Ltd. (1999) 13 NWLR (534) 315; Udemah Vs Nigeria Coal Corporation (1991) 3 NWLR (180) 47; Fakuade Vs O.A.U.T.H. (1993) 3 NWLR (291) 47 considered and applied in: C.B.N. Vs M.E. Archibong (2001) FWLR (58) 1032 @ 1048 F – H. Learned counsel submitted that there was no basis for the appellant’s claim for reinstatement, as to do so would amount to forcing him on the respondents who no longer wanted him on account of his conduct. He urged the court to dismiss the appeal.
In resolving this appeal, I am of the view that it is pertinent to note that the lower court granted three reliefs in the appellant’s favour. They are:
1. *That the suspension of the plaintiff in excess of 8 weeks is null and void contrary to the Provisional Regulations of the parties.
2. That the failure of the defendants to come to a decision within 8 weeks is contrary to the defendants’ Regulations and renders any such decision, if any null and void.
3. I order the defendants to pay to the plaintiff half of his salaries from the date of the aborted suspension till date of this judgment as damages for breach of chapter 9 paragraph 4 of the Provisional Regulations binding their contract of service. … The account department of the defendant shall write out the monetary entitlements as per the order – granted damages for breach of chapter 9 paragraph 4 of the presidential (sic) regulation binding the plaintiff and the defendant.”
It is also worthy of note that there is no appeal or cross-appeal against these orders. They are therefore binding on the parties. From the declarations made in 1 and 2 above it is evident that notwithstanding his finding regarding the alleged theft of Omo the learned trial Judge found and held that the appellant’s suspension was in breach of chapter 9 paragraph 4 of the 1st respondent’s Provisional Regulations governing the conditions of service of junior staff and was therefore null and void. The issue to be resolved in this appeal is therefore what is the appellant’s remedy for a breach of the conditions of service between him and the respondents. In order to resolve this issue it is necessary to determine the nature of the appellant’s employment. It is contended on behalf of the appellant that his employment is one with statutory flavour. The Supreme Court in C.B.N. Vs Igwillo (2007) 4 – 5 SC 154 @ 172 explained the categories of contract of employment thus:
“The law is settled that there are now roughly three categories of contracts of employment, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See Olaniyan Vs University of Lagos (1985) 2 NWLR (9) 599. An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.”
See also: Imoloame Vs WAEC (1992) 9 NWLR (265) 303; Shitta-Bey Vs University of Lagos (1981) 1 SC 40. In the course of trial the appellant tendered his letter of appointment, which was admitted in evidence as Exhibit B. The letter dated 25/2/91 reads inter alia as follows:
“Mr. Omale
Letter of Appointment
I write on behalf of the Council of the University of Agriculture to offer you appointment as Porter in the Student Affairs Unit at the initial salary of NI, 620.00 per annum on the University Scale USS 2/1. Your appointment is with effect from when you assume duty. Your conditions of employment are as follows:
(i) …
(ii) …
(iii) …
(iv) …
(v) The appointment may be terminated by either party at (sic) time by one month’s notice in writing or by payment of a month’s salary in lieu of notice.
(vi) In the event of wilful misconduct on your part, the university may terminate the appointment forthwith without notice or salary in lieu of notice.
(vii) …
(viii) This appointment is subject to the University Intermediate and Junior Staff Regulations as may be amended from time to time.
(x) …
(x) …”
It is evident from the above, particularly paragraph (viii), that the conditions of employment between the appellant and the l’t respondent are as spelt out in his letter of employment, Exhibit B, and as contained in the University Intermediate and Junior Staff Regulations. Unfortunately the said regulations were not tendered in evidence before the trial court. There is no reference to any statutory provisions in the pleadings and none was made at the trial. The onus was on the appellant to prove that his employment enjoyed statutory flavour. In Salami Vs N,N.N. Ltd. (1999) 13 NWLR (634) 315 @ 331 F – H, Omage, JCA (as he then was) referred to dictum of Uwaifo, JCA (as he then was) in Udemah Vs Nigeria Coal Corporation (1991) 3 NWLR (180) 477 @ 479 wherein he held thus:
“The fact that a defendant is a statutory body does not mean that the condition of service of its employees must be presumed to be of a special character …
It is the evidence given which shows the character of the appointment.” (Emphasis supplied)
In Azenabor Vs Bayero University Kano (2009) 17 NWLR (1169) 96 @ 108 – 109 H – F, this court per Augie, JCA held that it is not enough merely to prove that the employer is a creation of statute, there must be proof that employment is directly governed or regulated by a statute or a section of the statute delegates powers to an authority or body to make the regulations or conditions of service as may be. His Lordship held further:
“The rules and regulations, which are claimed by an employee to be part of the terms and conditions of his employment, capable of giving of statutory flavour and to be of protection to the employee must
(a) have statutory reinforcement or be regarded as mandatory;
(b) be directly applicable to the employee or persons of his cadre;
(c) be seen to be intended for the protection of that employment; and
(d) have been breached in the course of determining the employment.”In the instant case, the appellant, according to Exhibit B was employed as a junior staff of the 1st respondent on University Scale USS 2/1 Guided by the above authority, he had a duty not only to tender the relevant regulations in court but also to show that they had statutory reinforcement. In other words he had to show that the regulations were made pursuant to the powers conferred on the 1st respondent by the Act establishing it. He failed to do so. Such evidence is not a matter of inference. The appellant’s failure in this regard was fatal to his assertion that his employment had statutory flavour.
In the circumstances, I hold that the appellant failed to prove that his employment with the 1st respondent enjoyed statutory flavour.
As observed earlier in this judgment, the learned trial Judge held that the appellant’s suspension with effect from 4th October 1993 in excess of 8 weeks and without pay was in breach of Regulation 9 (4) of the 1st respondent’s Provisional Regulations Governing Conditions of Service for Junior Staff and therefore null and void. It is the appellant’s contention that the effect of declaring his suspension null and void is that he remained in the employment of the 1st respondent since October 1993 and was therefore entitled to the rights, benefits and privileges and total emoluments attached to the office of porter including accumulated leaves and promotion.
As rightly submitted by learned counsel for the appellant, by virtue of Section 137 of the Evidence Act the burden of proof in civil matters rests on the person who would fail if no evidence were given on either side. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Section 139 of the Evidence Act. In the instant case, the appellant was able to prove to the satisfaction of the court that he was suspended from work on 4/10/93 without pay and that contrary to the University Intermediate and Junior Staff Regulations no decision was taken regarding the suspension for a period of 8 weeks.
The respondents pleaded in paragraphs 6 and 8 of their statement of defence (at pages 98 and 99 of the record) and through the testimonies of DW1 and DW2 that the appellant confessed to stealing the Omo found on him and that he was dismissed in writing by the 1st respondent. The letter of dismissal and the alleged confessional statement were not tendered in evidence. The learned trial Judge in the course of reviewing the evidence discountenanced the evidence of both defence witnesses. The evidence of the appellant was thus unchallenged. I agree with learned counsel for the appellant that in the circumstances there was no evidence upon which the learned trial Judge could base his conclusion that the appellant stole the Omo. I also agree with him that pursuant to Section 138 of the Evidence Act the burden of proving beyond reasonable doubt that the appellant committed the offence as alleged was on the respondents, which they failed to discharge. In any event the issue before the learned trial Judge was whether or not the respondents, having alleged that the appellant committed theft, were in breach of Regulation 9(4) of the Provisional Regulations Governing Conditions of Service for Junior Staff in the manner in which they dispensed with his services, and if so what was the appellant’s remedy. With due respect to His Lordship, I am of the view that having rejected the entire evidence led by the respondents on the ground that the evidence of DW1 was hearsay and that the evidence of DW2 required corroboration, he was in error in holding that the theft of Omo had been established against the appellant.
At common law, in a master/servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or willful disobedience. See: Osisanya Vs Afribank (Nig.) Plc. (2007) 6 NWLR (1031) 565 @ 587 D – E; Nwobosi Vs A.C.B. Ltd. (1995) 6 NWLR (404) 656; (1995) 7 SCNJ 92; D.A. (Nig.) AIEP Ltd. Vs Oluwadare (2007) 7 NWLR (1033) 336 @ 365 E – F. However where conditions of service exist between the employer and the employee the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. See: Edet Vs Chief of Army Staff (1994) 2 NWLR (324) 41 @ 58 D – E; P.H.M.B. Vs Ejitagha (2000) 11 NWLR (677) 154 @ 160 A – B; D.A, (Nig.) AIEP Ltd. Vs Oluwadare (supra) @ 359 B – D,. In the instant case the appellant was suspended indefinitely. He was never recalled back to duty. In effect his employment was terminated.
The learned trial Judge held that the appellant’s suspension was null and void. He awarded him damages for the breach of the 1st respondent’s regulations, which bound the parties. He refused to grant prayer 3 seeking “a declaration that he has been in the employment of the 1st respondent since October 1993 and therefore entitled to the rights, benefits and privileges, including his total emoluments attached to the office of porter, deferred accumulated leaves and promotions in line with what his mates are enjoying” on the ground that his hands were not clean and that the Omo the appellant stole could not wash them clean. I have held in the course of this judgment that the reason given by the learned trial Judge for refusing this relief is not borne out by his findings based on the evidence before him. However, as the appellant failed to prove that his employment had statutory flavour, he was not entitled to an order that he has remained in the 1st respondent’s employment since October 1993. The general rule is that in an ordinary master and servant relationship where there has been a purported termination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made. See: U.N.N. Teaching Hospital Vs Nnoli (1994) 10 SCNJ 71 @ 92; Imoloame Vs W.A.E.C. (supra) at 318 E – H,

It is also settled law that where an employee’s appointment has been wrongly terminated under a common law contract of employment without statutory flavour, the employee’s remedy is damages. The measure of damages recoverable in such cases is determined by what the employee would have earned over the period of notice required to properly terminate his contract of employment. See: N.E.P.A. VS. ADEYEMI (2007) 3 NWLR (1021) 315 @ 336 A – C; CHUKWUMAH VS SHELL PETROLEUM (1993) 4 NWLR (289) 512. By virtue of paragraph (v) of Exhibit B, the appellant was entitled to one month’s salary in lieu of notice. He did not plead or lead any evidence in respect of his total emoluments, accumulated leaves and/or promotions. The learned trial Judge ordered that he be paid half of his salaries from the date of the aborted suspension till the date of judgment as damages. There is no appeal against the award of damages. It is therefore binding on the parties. In relief 5 the appellant sought an order of perpetual injunction restraining the respondents from interfering with his employment except as provided for in the contract of employment. Having held that he was not entitled to relief 3 on the ground that he had not shown that his employment was statutorily protected it follows that he was also not entitled to relief 5. In the circumstances I find no reason to disturb the judgment of the lower court.
In light of all that I have said above, I answer the sole issue for determination in this appeal in the negative. I therefore hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the Federal High Court, Makurdi Judicial Division in suit No. FHC/MKD/CS/5/2002 delivered on 5th July 2006 is hereby affirmed. The parties shall bear their respective costs in this appeal.

A.A.B. GUMEL, J.C.A: I have had the privilege of reading before now, the lead judgment just read by my learned brother, KEKERE-EKUN, JCA. I agree with all the reasons and conclusions so ably set out in the lead judgment. I also agree that this appeal lack merit and ought to be dismissed. I too would dismiss this appeal. I also abide by all the consequential orders in the lead judgment of my learned brother.

ONYEMENAM, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother K.M.O KEKERE – EKUN, JCA which I agree with.
This is an appeal against the judgment of M.A. Edet, J., of the Federal High Court holden at Makurdi, which was delivered on the 23rd day of September, 2003.
From the pleadings, the main issue at the lower court was the legality of the appellant’s suspension by the respondents vis-a-vis the provisions of the provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS 01 – 05) hereinafter referred to as the “Regulations”. The appellant copiously pleaded, listed and gave oral evidence in court on the Regulations. Exhibit “B” dated 23/8/99 which is the appellant’s letter of appointment made his appointment subject to the Regulations. Again, the root of the appellant’s reliefs sought is the Regulations. Unfortunately the Appellant did not tender the Regulations in evidence.
The crux of this appeal is as shown in ground one (1) of the Grounds of Appeal, reproduced hereunder.
GROUND ONE
“The learned trial Judge erred in law when he refused to grant the reliefs sought by the appellant before the lower court in the circumstances of the case.
PARTICULARS
1.. Learned trial Judge rightly held that the suspension of the plaintiff/appellant in excess of eight t8l weeks was in breach of the 1st respondent’s Provisional Regulations Governing the Conditions of Service of Junior Staff.
2. The initial step taken by the respondents against the appellant was null and void, as so declared by the court, the court was therefore has (sic) no option than to grant all the reliefs sought by the appellant.
3. The appellant established his case to be entitle (sic) to the reliefs sought from the court.”
The learned counsel for the appellant argued that the appellant’s employment has statutory flavour and thus protected. He submitted that the respondents cannot terminate the appointment with statutory flavour except as provided by the statute regulating the same. He further submitted that the law is that where a statute/regulation provides for performing a particular action in a particular manner, that procedure/process and none other must be followed. See UNN TEACHING HOSPITAL & ANOR VS. NNOLI (1994) 10 SCNJ 71 at 85.
A party who relies on a document in proof of his claim must tender the document as extrinsic evidence of its contents is not admissible in evidence. See ADELAJA V. ALADE (1999) 6 NWLR (PT 608) 544: JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182: SUNDAY ANI & ANOR V. THE STATE (2009) 16 NWLR (PT 1168) 443 AT 456. Similarly, the appellant in the instant case who rested on the Regulations in proof of the nature of his employment ought to have tendered same in evidence as the pleadings and oral evidence of its contents will not place the Regulations before the court. As it was not tendered in evidence, the Regulations was left to lie in the records as a toothless bull dog.
Reliance cannot therefore be placed on the Regulations which was not tendered to determine whether the employment of the appellant has statutory flavour to entitle him the grant of the other reliefs sought. To decide otherwise will compel the court to speculate on the contents of the Regulations which is not the function of the court. See GBAJOR V. OGUNBURE GUI (1961) 1 ALL NLR 583. MERCHANTILE BANK OF NIG. PLC. & ANOR. V. LINUS NWOBODO (2000) 3 NWLR (PT.648) 297 AT 317.
It is for the above and the more elaborate reasons contained in the judgment of my learned brother that I also dismiss the appeal. I uphold the judgment of the lower court. I abide by the order as to costs.

Appearances

S.O. Idikwu;
Mrs. A.A. Idikwu,
E.O. Ominyi Esq., and
Miss. M.A. Popoola;For Appellant

AND

Timothy Dim;
Mrs. M.I. Amara, Principal Assistant Registrar, LegalFor Respondent