MR. ADELEKE JOSEPH BABATUNDE v. THE GOVERNING COUNCIL, FEDERAL POLYTECHNIC, EDE & ANOR
(2014)LCN/7614(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of December, 2014
CA/AK/142/11
RATIO
APPEAL: GROUND OF APPEAL; WHETHER A GROUND OF APPEAL ALLEGING ERROR IN LAW AND MISDIRECTION ON FACTS IS NOT INCOMPETENT
That a ground of appeal alleging error in law and Misdirection on facts is not thereby incompetent if it otherwise complies with the rules of court requiring that a ground of appeal be not vague or general in terms and disclosed a reasonable ground of Appeal such that the Respondent is given sufficient notice of the precise nature of the Appellant’s complaint.
See BADU Vs INEC (2008) ALL FWLR pt.435, 1794 @ 1917 Para C, following the Supreme Court decision in HUMBE v. HUEZE (2007) FWLR (Pt.42) 1 and 16. Alhaji Abdulrahman Akanbi vs Mallam Wasiu Salawu & ors (2003) 6 SCNJ 246 @ 254 (per Uwaifo JSC). per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MR. ADELEKE JOSEPH BABATUNDE Appellant(s)
AND
1. THE GOVERNING COUNCIL, FEDERAL POLYTECHNIC, EDE
2. THE FEDERAL POLYTECHNIC, EDE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Osogbo, Division contained in the Judgment delivered on the 25th day of May, 2011. The Appellant formulated two issues for the appeal; Respondent also on his part, also donated 2 issues.
The Appellant’s issues are as follows:-
1.) Whether it was established before the lower court that the appellant’s employment enjoyed statutory flavour? (Ground one)
(2) Whether the Appellant’s employment was properly terminated within the terms of his employment Grounds two and three.
The Respondent’s Issues are as follows:-
(1) Whether the Appellant’s employment as an unconfirmed probationary staff enjoyed statutory flavour (Ground one)
(2) Whether the Appellant proved his case that the termination of his employment is ultra vires; wrongful, unfair and malicious? (Grounds two and three)
A perusal of the two issues formulated by the respective Learned Counsel for the parties no doubt show that they are similar except that Issue Number 2 of the Appellant is broader and more encompassing than the Respondent’s issue two that is limited in scope by its conclusive phraseology on employment of probationary and unconfirmed nature and the applicability or otherwise of the statutory flavour doctrine. Be that as it may, I shall adopt the Appellant’s two issues, even though it is very clear that Issue No 2 alone would determine this appeal.
Whether it was established at the trial court that the Appellant’s employment enjoyed statutory flavour learned counsel argued that it had been settled by the pleadings of the parties that the Public Service Rules and the Federal Polytechnic Act applied and governed the employment relationship of the parties, to which the letter of appointment was made subject. Counsel referred to paragraph 5 of the Statement of Claim which was admitted in paragraph 1 of the Statement of Defence. Furthermore, that by paragraph 8 of the Statement of Defence, the 1st and 2nd Defendants had averred that the termination of employment of the plaintiff was in line with his letter of appointment and the Federal Public Service Rules. That the Appellant’s evidence on oath, per paragraph 6 of his statement on oath was a confirmation of his employment being subject to the Federal Public Service Rules, the Federal Polytechnic Act and the terms of the letter of appointment. (see page 21 of the record).
That the only witness of the plaintiff testified to the same effect of these fact of the applicability of the Federal Public Service Rules and the Federal Polytechnic Act. Page 38 Record of Appeal, par.1
That the Respondent’s lone witness at page 109 of the records testified to the same effect when he stated thus:
“I agree that the plaintiff’s employment is governed by the Public Service Rules” and I have seen Exhibit C. It was dated 18-4-2008. It was a letter of interdiction pursuant to Rule 030404 of Federal Public Service Rules”
Relating further to this, the Respondent’s witness evidence at page 110 of the record and page 109 thereof where he testified as to the provisions of the Federal Polytechnic Act Vis-a-vis the role of the Minister of Education and Exhibit ‘J’ being the letter of Termination of Appointment of the plaintiff as approved by the Hon. Minister of Education as signed by the said respondent’s witness. From the references to the pleadings and evidence as set out in resume supra, it was argued that trial court was therefore in error to have held that the appointment had no statutory flavour, whatsoever; learned counsel therefore, argued that from the pleadings and evidence led, it was clear that the parties had agreed that the plaintiff’s employment was governed by the Federal Service Rules.
2. That the Appellant was put under disciplinary procedure and served with a letter of interdiction pursuant to the Public Service Rules.
3. The appointment of the Appellant was terminated on the instruction of the Minister of Education acting pursuant to the Federal Polytechnic Act. Dwelling and illucidating further on the issue of the statutory flavour of the employment in the matter, counsel argued that the trial Judge was making a different case for the parties on the statutory flavour of the employment in the matter; counsel argued that the trial Judge was making a different case for the parties as the statutory instruments having been pleaded and relied upon and so acknowledged by the trial court, the entire provisions of those statutory instruments become relevant.
It is also argued that an employment is said to have statutory flavour, if any aspect of the employment contract is governed by statutory provisions. See
P. H. M. B. Vs Ejitagha (2000) 2 N.S.C.Q.R (Vol. 2) 1360; Olaniyan Unilag (1985) 2 NWLR (Pt.9) 599; (2001) FWLR (pt.56) 778
Learned Counsel submitted that the Federal Polytechnic Act was an Act of the National Assembly; so also was the Federal Public Service Rules made pursuant to the constitutional powers and thus enjoys constitutional force. See Omowale Vs Governor, Ekiti State (2011) ALL FWLR (Pt.588) 876 @ 917; LAOYE Vs F.G.S.C (1989) 2 NWLR (Pt.106) 652.
That the Appellant had testified that proceeding under the Public Service Rules were commenced against him but not followed through, but his appointment was suddenly terminated when it was discovered that he could not be found guilty; and instead of reinstating him as provided by the Public Service Rules earlier on invoked in the first instance to interdict him, pending the outcome of disciplinary processes instituted against him. Referring to the evidence of the plaintiff at paragraph 21 – 22 of his statement on oath that it was clear that he had testified to the futility of all efforts at trying to terminate his appointment on incompetence and shown that no reason justifying his interdiction had been shown.
That the relevant statutory instruments, had thus been put in issue as far as the facts alleged and denied were concerned. That the Judge could not justify his conclusion without resort to the statutory instrument asserted by both sides in pleadings and evidence.
Learned Counsel argued that the burden was on the respondent who had admitted the applicability of the statutory provisions to lead evidence to show compliance with same.
Referring to P.H.M.B vs Ejitagha (2000) FWLR (Pt.9) 1510 @ 1524, wherein the apex court held thus:
“Where a person or authority claims to have acted pursuant to a statute; such a person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances and that he or it was empowered to act under it”
That there was evidence in buttress of the declaratory reliefs sought when the Plaintiff/Appellants statement on oath was adopted and in support of the pleadings. That the defence in pleadings and evidence agreed with the Appellant and thus supportive and could be relied on.That holding that the entire contract was governed only by Exhibit ‘B’ was wrong and (a) an attempt to make a new contract for the parties and (b) the court making a case for the Respondent contrary to the pleadings of the parties or the evidence led at the trial court.
Learned Counsel therefore, argued that this amounted to an incidence of not adequately evaluating the evidence led.
Learned counsel contends that happily, the nature of the evidence led was not such that centered or related to credibility of evidence and that as such this court could re-evaluate same and make appropriate findings so as to correct the miscarriage of Justice which he strongly felt had been occasioned. Learned Counsel contended that the lower court needed to take Judicial Notice of statutory provisions and merely apply the facts without any proof of their content.
We were urged to hold that the employment of the Appellant had statutory flavour and that the lower court was wrong in holding otherwise.
In reply, the Respondent’s Learned Counsel raised a point of preliminary objection to the issue No 1 as raised and argued by the Appellant on pages 4 – 8 of the Appellant’s Brief of Argument. Learned Counsel argued that the Ground one from which the Issue Number one is distilled is fundamentally and incurably defective.
Learned Counsel submitted in justification of his objection that a ground of appeal that complains of both error in law and on facts at the same time is incurably defective and would be struck out. Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718 @ 744; Ibrahim V. Oshoma (1991) 6 NWLR (Pt.197) 286 @ 298. That in the same pattern that the arguments thereto be discountenanced as irrelevant.
In reply on the point of preliminary objection raised, the Appellant by the Appellant’s Reply Brief of Argument dated 23rd May, and adopted at the hearing, submitted at paragraphs 1.00 to 1.03 of page 1 – 2 thereof as follows:
That the objection was Misconceived. That the Ground one of the Appellant’s Notice of Appeal did not allege both error in law and on facts as Quoted on the page 7 first two lines of the Respondent’s Brief. Learned Counsel pointed out that it was clearly indicated as an error in law and misdirection on facts that were complained of in Ground one; what is more that the portion of the Judgment where the twin faults occurred was Quoted in extenso.
I have perused the Ground Number one of the Notice of Appeal. It is contained on page 94-95 of the Record of Appeal. Learned Counsel for the Appellant had copiously reproduced verbatim the portion of the Judgment complained of vis – a-vis facts pleaded, admitted and testified to alongside the provisions of the statutes and Rules agreed by both parties and the court as being legal instruments relevant to the contract of employment in the matter of the subject appeal.
Learned Counsel argued that the court had no business straining whether the contract was made contingent upon any statute as both parties had so agreed in their pleadings and evidence. Further that there was an error in law and a misdirection to expect any proof of the existence of a law to ground a statutory flavour claim as the parties had agreed on the existence of such a law.
That the content of a law must be taken Judicial Notice of and no burden is cast on a party relying on same. That a ground of appeal alleging error in law and Misdirection on facts is not thereby incompetent if it otherwise complies with the rules of court requiring that a ground of appeal be not vague or general in terms and disclosed a reasonable ground of Appeal such that the Respondent is given sufficient notice of the precise nature of the Appellant’s complaint.
See BADU Vs INEC (2008) ALL FWLR pt.435, 1794 @ 1917 Para C, following the Supreme Court decision in HUMBE v. HUEZE (2007) FWLR (Pt.42) 1 and 16. Alhaji Abdulrahman Akanbi vs Mallam Wasiu Salawu & ors (2003) 6 SCNJ 246 @ 254 (per Uwaifo JSC).
I agree absolutely with the Appellant’s Counsel that Ground No 1 of the Notice of Appeal was sufficiently informative and had been so clearly and carefully set out to reveal the various aspects of the Appellant’s complaint relating to the error in law and the Misdirection of the proved admission in pleadings and/or evidence on oath of the parties and vis-a-vis the law as by the admitted statutes and Public Service Rules, Letters of Appointment/termination founded upon by both parties.
It was therefore an error on the part of the trial Judge to hold that Exhibit “B” was not made contingent upon any Act or statute but merely gave the Respondent very wide powers in respect of the employment of the Appellant.
I agree, that amounted to a misdirection contrary to the parties’ position. They were at a consensus ad idem as to the applicability of the statutes and Rules pleaded. Their evidence on oath was also misapplied by not relating them to the pleadings on the statutes and worst of explaining away their existence, by an unsupported conclusion that those evidence on oath did not exist in fact.
The Respondent understood same and answered them profusely in his Brief and I wonder where he had been prejudiced in this spurious claim of
“A faulty admixture of both error in fact” which as shown in the submission of the Appellant’s learned Counsel, does not exist in the slightest. It is an unfounded objection intended to cage the sail of the Appellant’s arguments on this issue, which even if successfully done would not end the case as even if the employment was not a statutory one and had no statutory flavour, the correctness of the exercise of a right to precipitately terminate an employment can still be questioned as
(a) relating the conditions for (if any) and (b) conditions precedents to the exercise (if any) would still be inquired into and decided.
On the whole, this objection which lies against itself is overruled for lacking in any basis, in law and in facts.
I shall now proceed to the Respondent’s argument on the merit of the Issue No 1.
Respondent’s counsel argued that the Appellant had not shown that the terms of his Letter of Appointment was breached by the Letter of termination as couched, as his terms of employment was Exhibit ‘B’ and the termination based on Exhibit ‘B’ and the termination based on Exhibit ‘J’ gave no reason for the termination other than that the Appellant’s services was no longer required.
Learned Counsel also argued that the Appellant’s employment was not one regulated or covered by a statute such as the Civil Service Rules, Federal Polytechnic Act as far as his employment was not a confirmed one but still probationary; that those statutory provisions or regulations can only be invoked when the appointment is confirmed.
Furthermore, it was argued that the character of the employment or appointment and status of the employee is determined by the legal character and where the contract is determinable by the agreement of the parties simpliciter, there is no question of the contract having statutory flavour. That the mere fact that one of the parties is a creation of statute does not make any difference.
Mrs. F. O. Fakuade Vs Obafemi Awolowo University Teaching Hospital complex management board OAUTH (1993) 5 NWLR (Pt.291) 47 per Kutigi, JSC (as he taken was) at pages 57 – 58; 62.
(2) NEPA V. Isievore (supra) page 156, Par. B – F.
That the Appellant, being a probationary employee did not enjoy the status of a statutory employee. That the provisions of the Federal enactments referred can only be invoked after the confirmation of the employment. Before now, Respondent’s learned counsel had contended that though the parties were bound by their pleadings, he submitted that the Appellant had not at the trial proved his pleadings and that what is more he was deemed to have abandoned same. That it was not sufficient to rely on a Respondent’s evidence. He cited Akinfosile vs Ijose (1960) 1960 (SCNLR) 447 @ 453; Obimiami Brick & stone (Nig) Ltd v. ACB Ltd (1992) 3 NWLR (Pt.229) 260; George v UBA (1912) 8 – 9 SC 264; Piaro V. Temato (1976) 12 SC 31.
Counsel argued that the Respondent as Defendant did not admit the fact of his employment being governed by statute as pleaded and claimed by the Appellant in his Brief.
I do not accept this recoil in address. A party should be consistent in making his case both at the trial court and on appeal.
See…………………….
Respondent had admitted paragraph 5 of the Appellant’s pleadings by his specific admission in paragraph 1 of the Statement of Defence wherein he stated thus:-
“The defendants admit paragraphs 1, 2, 3, 4, 5 and 7 of the Statement of Claim.
8. The termination of plaintiffs appointment is in line with his letter of appointment and Public Service Rules.”
Respondent’s Counsel proceeded to argue that by the content of Exhibit ‘B’, the confirmation of the Appellant’s employment was subject to satisfactory medical and confidential report on him. That unless confirmed the various statutory enactments and Rules brandished will not be applicable to the Appellant who had not shown that he passed the necessary exams to qualify him for confirmation; and that the admission of the Defendants/Respondents that the termination was in accordance with the Public Service Rules did not amount to admitting that it enjoyed statutory flavour, more so that the appellant was not a confirmed staff.
That the Appellant had not so proved, as he was expected to do pursuant to Sections 135 and 136 of the Evidence Act.
That the Respondent’s case has not supported the Appellant’s case. Chiroma Vs Suwa (1986) NWLR (Pt.19) 751 @ 7756 Par. F.
Learned Counsel went at great length to address this court on the meaning of the phrase, “subject to” as far as Exhibits “A” and “B” are concerned and when the Public Service Rules and Federal Polytechnic Act would apply.
Learned Counsel then proceeded to contend that even if this court holds that the employment was wrongfully terminated he was entitled only to damages which he had not claimed and cannot therefore, be granted;
That he cannot be re-instated as the termination cannot be declared null and void, in the circumstances.
NEPA V, ISIEVEORE (supra) Akintemi V. Onwumechili (1985) NWLR (Pt.1) 68 Olaniyan V. University of Lagos (1985) 2 NWLR (Pt.1) 599 Eperokun V. University of Lagos (1986) 4 NWLR (Pt.34) 162; Garba V. FCSC 1988 1 NWLR (Pt.71) 449.
Learned Counsel argued strenuously, though tenaciously that the parties having agreed that the employment was governed by the terms of Exhibit ‘B’ and that Exhibit J can only be construed by reference to Exhibit ‘B’ and no more.
We were, therefore, urged to so hold.
Contradictorily to the above posture, we have also been urged to hold that the Appellant, being a probationary staff can be terminated for no reason but put in the position he would have been if the relevant Civil Service Rules or the Federal Polytechnic Act had been followed by the award of damages.
That this court as an appellate court cannot interfere or evaluate evidence that had not been proffered or if proffered had been properly evaluated and not shown to be perverse.
Learned Counsel urged that this court be not drawn into evaluating and interfering with conclusions arrived at by any inference as that will not be justified, and that the Issue No 1 be resolved against the Appellant.
I shall ignore the stray arguments covering diverse areas of the law and unrelated to the straight forward issue as to whether the employment of the Appellant was one that had a statutory flavour as I do not have the leisure of time to embark on an academic voyage and discourse on peripheral matters that may fortify but not necessarily determine the appeal.
The parties herein have pleaded and relied on the Appellant’s Letters of Appointment Exhibit ‘A’ and ‘B’. The said letters were issued pursuant to the Federal Polytechnic Act, the Appellant being employed as Instructor in the Federal Polytechnic, Ede. The Letters of Temporary and regularised appointments were all subject to the Federal Polytechnic Act as relating to the conditions of service as expressed therein and the Federal Public service Rules and the Regulations thereof.
Pleaded by parties or not, testified to in proof or admission or not it is my view that the appointment of the Appellant has ipso facto smeared itself with a coloration of an appointment of a statutory flavour. This is more so, that the conditions for the termination thereof have been clearly stated with reference to the Federal Civil Service Rules, the polytechnic Act and Regulations.
The letter of termination that is Exhibit ‘J’ does not make any pretence about that reference. The question that determines whether an employment has a statutory flavour is not whether the status of the employee is on the higher echelon or low ladder of the service. It is also not determined by whether an employee is on probation or a permanent or a confirmed employee.
It is rather whether his terms of engagement is controlled and determined by statute as relating engagement and termination. I am not unaware of the fact that the fixity of a term or tenure by a statute would appear to be a strong situation to infer the existence of an employment with statutory flavour, but I strongly hold the view that while it is one of the situations that may so determine, it is the protection of such a tenure and its requirement of an obligatory condition/procedure for the invocation of a right to terminate such a consentual contract that cloths it with a statutory flavour.
In this wise, therefore, the arguments of the Respondents as to damages and the unavailability of a declaration of nullity or voidness is beside the point; in the same manner that the temporariness or confirmation status of an employee is a non issue.
By the pleadings and evidence, the statutory flavour of the employment re-enforced by the sheer existence of Exhibits ‘A’, ‘B’ and ‘J’ had been proved.
Issue No one is resolved in favour of the Appellant.
ISSUE 2.
On this issue, the Appellant argued that the holding of the trial court that the employment was only governed by the Letter of Appointment and was properly terminated was wrong. That the Appellant’s appointment was not governed by only his Letter of Appointment but also by the Public Service Rules and the Federal Polytechnic Act.
That interdicting the Appellant under the Public Service Rules, a procedure not contained in the Letter of Appointment – Exhibit ‘B’ was a concrete confirmation of the fact of its applicability. That Respondent himself had testified and pleaded to the act of confirmation of termination of the appointment by the approval of the Minister. This is not set out or provided in the Letter of Appointment – Exhibit “B”. That this is only applicable (Page 109) on the Evidence of DW1 referred.
That the court cannot from the above hold, contrary to the applicability of the Federal Polytechnic Act, Federal Public Service Rules and the Letter of Appointment to the determination of the validity of Exhibit ‘J’ terminating the contract of service.
Learned Counsel argued that the Appellant was terminated during a period of interdiction, and that the only thing that could be done at interdiction or after, is to re-instate a person not found wanting. That Respondent’s witness had testified on the investigation and interdiction and without reference to any fault linked to the Appellant and that Appellant’s evidence of his innocence was uncontradicted.
That the reason for the interdiction was not persisted on nor proved and hence the change of gear when the Appellant was terminated on the ground that his services were no longer required.
Learned Counsel argued that the period of probation was limited to 2 years only and had been exceeded and therefore the Appellant was no longer on probation but a confirmed staff. That Rule 0203011 of the Public Service Rules was applicable.
That the right to terminate the appointment under Exhibit ‘B’ was no longer extant on 28-11-08 since two years had lapsed.
Obafemi Awolowo University Vs Onabanjo (1991) 5 NWLR Pt.549 referred and in support of the view that the option of extending the probationary period was not exercised thus leading to the appointment standing as confirmed.
It was also contended that the appointment was not terminated by the appropriate officer. That Appellant was appointed by the Council of the Federal Polytechnic, Ede as in Exhibit ‘B’ and by S.11 (1) of the interpretation that could only be removed by that Council and not by the Minister of Education.
Learned Counsel argued that with the restriction imposed on the Honourable Minister of Education under the Federal Polytechnic Act, not to give any directions on particular matters or individuals, that it was ultra vires the minister to give approval to the termination of the Appellant under clause 3 (b) of the letter Exhibit ‘B’ as that power was vested in the Polytechnic Council. That there was no evidence to show that the Council had a hand in the termination of the appointment, that even if Exhibit ‘B’ regulated the terms of the employment, the termination by the Minister of Education was wrong and ultra vires. See Council of Federal Polytechnic Mubi Vs Yussuf & Anor (1998) 1 SCNJ 11.
Finally that the reason given for the termination of employment was alien to employment with statutory flavour which cannot be determined at will. That it was an expression known to non-statutory employments where the right to hire and fire rested on the master and cannot be exercised at will. That though this issue is academic now, in the face of a finding that the termination was not done by the appropriate authority ultimately, the Appellant urged that this issue be resolved in his favour and the reliefs prayed for at the trial court be granted.
In response, the Respondent submitted that the Appellant did not prove the case for an entitlement to the reliefs in paragraph 25 (a) and (b) of the Statement of Claim.
That Plaintiff did not file a Reply to the Statement of Defence and did not plead conditions under which the plaintiff could be terminated, he could not argue against Exhibit ‘J’ on the reason stated thereon. That the entirety of the Appellant’s contention was baseless.
In a reply address, the Appellant emphasised that that admission had been made of what constituted the basis of the employment relationship of the parties and that the rules of pleadings had settled the position of the parties’ case thus making a Reply pleading uncalled for.
That Order 13 Rule 15 of the Federal High Court Civil procedure Rules on admission had been made applicable.
That termination can only be as provided under the relevant Act and Rules. The Council of Federal Polytechnic Ede Vs Johnson Olowookere CA/I/281/2008; Obafemi Awolowo University Vs Dr. A. K. Onabanjo (1991) 5 NWLR (Pt.193) 459; Olaniyan V. University of Lagos (No.2) (1985) 2 NWLR (Pt.9) 599. That no Service Rule had been referred to showing that “no service required” could not be used to terminate an employment. The resolution of this second issue, in my view does not require a prolific discourse by piecemeal approach as adumbrated in the submission of the respective Counsel and in particular that of the Respondent. The simple question can be answered by the view that parties had clearly been at id idem on the fact that employment was governed by Exhibit ‘A’, ‘B’ and that those were clearly made subject to the Federal Polytechnic Act and the Public service Rules.
I do not agree that the termination was not done by the Polytechnic Council of the Federal Polytechnic, Ede. It was from Exhibit ‘B’. The letter emanated from the Polytechnic and on its letter headed paper and signed by its Registrar and Secretary.
The approval of the Minister of Education thereon expressed and testified to, is in consonance with The Polytechnic Act and not otherwise. The letter Exhibit ‘B’ was not therefore issued by the Minister nor authorized by him in contravention of S.16 of the Federal Polytechnic Act. An approval given to a council with statutory power, in accordance with the law when the Council had done the act and by hand of its agent, the Registrar/Secretary of Council, cannot make the exercise of the power ultra vires, null and void or make the act that of the approving authority.
However, it is my view that the Exhibit “B” allows the exercise of the power of termination summarily on grounds of gross misconduct and it is here that the Polytechnic Defendant/Respondent reserves the exclusive right of determining what constituted gross misconduct.
This, unfortunately for the Respondent is not the reason for the summary termination. That cannot therefore be justified.
There is however a window for the termination of the appointment of the Appellant without giving any reason save perhaps that the services are no longer required as in Exhibit “J”.
In that case, it could be done but not without first giving 3 months Notice in writing or by payment of three months salary in Lieu of Notice. See Article 7 of Exhibit ‘B’. Parties had agreed on the applicability of Exhibit ‘B’. I so find it applicable. The terms and conditions therein as in its Article 7 thereof was not complied with by the immediate summary termination thereof by Exhibit “J”; on this ground, therefore, it is clear that the contract of service bound to be determined only under the terms and the applicable law/rules, was in this case proved to have been terminated contrary to the Exhibit ‘B’ and was therefore wrongful.
Since the right to terminate, even summarily or for misconduct existed, the termination was not illegal or ultra vires the respondent. It was however wrongful as the condition precedent i. e. requisite Notice had not been issued or given in the dismissal as made herein.
Inspite of the aforesaid, the appeal must however fail as the Appellant as Plaintiff had not established his claims i.e. reliefs sought at the trial court. The Learned trial Judge was right in so holding.
Unfortunately the entitlement of the Appellant to damages as an award for wrongful termination of appointment cannot be remedied by this court by any award for special damages as there was no such claim of award in general damages in the circumstances that the trial court could have. However, in this case no general damages may be awarded as this court can only order what would or could be validly done at the trial court. The trial court could not have been a Father Christmas as to hand out reliefs not sought, so this court also cannot do. The failure of this appeal is occasioned by failure in the pleadings.
Appeal dismissed.
The Judgment of the trial court is sustained.
MOJEED ADEKUNLE OWOADE, J.C.A.: I was privileged to read in draft, the lead judgment of my learned brother Mohammed Ambi-Usi Danjuma, JCA. I agree entirely with his reasoning and conclusion that the appeal has no merit and ought to have been dismissed. I too dismiss the appeal. The judgment of the trial court is hereby sustained. I abide by the consequential order(s) contained in the lead judgment.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
M. O. AgboolaFor Appellant
AND
Awoniyi AlabiFor Respondent
