IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 20TH JULY, 2018.
SUIT NO.: NICN/EN/09/2016
BETWEEN:
- CHIJIOKE CHIMEZIE DANIEL CLAIMANT
AND
FEDERAL ROAD SAFETY COMMISSION DEFENDANTS
REPRESENTATION:
- O. Nwokeiwu Esq. for the Claimant
- U. Okocha Esq. for the Defendant
JUDGMENT
By a complaint filed on the 2nd March, 2016 the claimant sought the following reliefs against the defendant.
- a)A declaration of this honourable court that the purported termination of appointment of the claimant by the defendant through a letter dated the 12th day of November, 2015 without fair hearing is wrongful, unconstitutional, null and void and of no effect whatsoever.
- b)A declaration of this Honourable Court that the claimant is entitled to be re-instated into the services as a staff of the defendant.
- c)An order of this Honourable Court directing the defendant forthwith to re-instate the claimant to his employment with the defendant and place the claimant at par with his counterparts in the service of the defendant with all promotions, salaries, emoluments and other perquisites of office due to him.
- d)An order of this Honourable Court directing the defendant to forthwith pay the claimant all his outstanding salaries, increments, allowances and all other entitlement and perquisites of the claimant from the time his appointment was unlawful terminated to the time of his re-instatement.
- e)N2 million as aggravated and general damages.
The claimant filed his statement of facts and a witness deposition along with the originating process. In response to the originating process, the defendant filed a memorandum of appearance on the 4th April, 2016 and a statement of defence on the 31st May, 2016. Also filed along with the statement of defence is the witness statement on oath of Okwo Mee Obeten, Edward Stephen Onyema and Onunze Jennifer Ifunanya.
Hearing in this suit commenced on the 29th November, 2017. The claimant testified as CW1 and the sole witness. He adopted his witness deposition and tendered the following documents in proof of his case:
1) Letter of offer of appointment admitted as Exhibit C1
2) Letter of confirmation of appointment marked Exhibit C2
3) Letter of Termination of appointment Exhibit C3
4) Solicitors letter of Pre-action notice Exhibit C4
5) FRN Gazzet No:87 on Road Safety Commission (Establishment Act 2007 and Regulations on Maintenance of Discipline marked Exhibit C5.
The claimant was cross examined by the defendant counsel.
The defence case commenced on the 13th February, 2018. The defence called 3 witnesses – Onunze Jennifer Ifunanya testified as DW1, Onyema Edward Stephen testified as DW2 while Okwo Mee Obeten testified as DW3.
The defendant tendered the following document through DW3:
1) Cash declaration Register marked as Exhibit D1
2) The photograph of FRSC officers on patrol on the said date admitted as Exhibit D2
3) Photograph showing money in the hands of undisclosed person and photograph of undisclosed person’s back admitted and marked Exhibit D3 “a” “b” and “c”.
4) Photograph of Naira bills admitted as Exhibit D4 “a” “b” “c” “d” and “e”.
5) FRSC statement of Witness/Defaulter admitted and marked Exhibit D5 “a” “b” “c”.
The defendant close his case on 24th April, 2018. The parties adopted their final written addresses on the 17th July, 2018 and the suit was adjourned to 20th July, 2018 for judgment.
Before I proceed into the merit of this case, I must state that there is no need to recount the facts of this case for the reason I shall give shortly. The facts are already reproduced in the pleadings and in the addresses of the parties. The reason is that it does appear and indeed very clearly that the entire facts leading to this suit has been abandoned and have become irrelevant in the face of Exhibit CW3, the letter of termination. Therefore some of the evidence tendered in respect of the issue of patrol misconduct, search of the claimant and administrative investigation hearing will play no part in the face of Exhibit CW3. The court takes this position because the defendant counsel in his written reply on point of law so rightly made it clear that “The defendant having not adduced any reason for the claimant’s termination of his employment”, the claimant counsel should not dwell on issues of misconduct for which the claimant was investigated before the termination. Counsel further stated that the procedure of the investigative panel is not the subject of litigation before this court. What is before this court is the termination of appointment of the claimant by the defendant. No reason is stated by the defendant in Exhibit CW3 for terminating the claimant. Therefore Exhibit CW3 must be considered on its merit since it does not make any reference to the issue of patrol misconduct and breach of the “Road Satefy Commission (Establishment) Act 2007”; Regulations on Maintenance of Discipline, 2013. Bearing this in mind, it is the position of this court that the issue for determination in this judgment is:
“Whether the claimant’s employment with the defendant is one with Statutory Flavor and if so, whether the claimant was wrongly terminated of his appointment.
It is on the determination of this question that this court would make the appropriate order in line with the relieves sought by the claimant, or refused to grant the relieves.
The claimant in this suit was by a letter of provisional offer of appointment dated 24th April, 2001 admitted as Exhibit CW1 employed as a driver on a probationary period of two years. The claimant’s appointment was confirmed after two years via a letter dated 20th May, 2014. On 12th November 2015, the claimant was terminated of his appointment with the defendant. The claimant served the defendant a pre-action notice on 21st December, 2015 and later commenced this action against the defendant.
The question is whether the defendant is justified in terminating the claimant.
The defendant contends that the defendant had the powers under paragraph “e” of Exhibit CW1 to terminate the claimant by giving a month notice or one month salary in lieu of notice, which the defendant claimed they rightly did and directed the claimant to report to the Finance and Account Department in Abuja to be paid his entitlement. It is their position that the claimant has refused to do so, that during cross examination the claimant admitted that he did not go for his entitlement because he sued the defendant, so there was no need to go and claim his entitlement. It is the position of the defendant that even assuming the termination was wrongful this court cannot order re-instatement because this court has no power to impose a willing employee on an unwilling employer. Counsel cited the case of Ekpeogu V. Ashaka Cement Co Plc. [1997] 6 NWLR (pt 508) 280 (CA).
The defendant further position is that the claimant’s remedy assuming but not conceding that the termination is wrongful is in damages. This is the position of the defendant from the state of the evidence adduced in this matter and their final written address.
The claimant position is that by virtue of S.17 (1) of the Federal Road Safety Commission Act the service by members of the defendant shall be deemed to be public service of the Federation within the provisions of section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. He contends that by paragraph i of Exhibit CW1 which states that “until our new condition of service is produced, you will enjoy all provisions as obtained in the Federal Public Service”, that from the onset the employment of the defendant was covered by the Public Service Rules of the Federation. He contends that the claimant employment is one with statutory flavor that the remedy for termination of contract with statutory flavor is re-instatement.
I have carefully considered the argument of the counsels for the parties as well as the evidence adduced in support of their respective positions. First it is important to consider Exhibit CW1 clause “e” which provides”
That you or the commission may terminate your appointment by a full month’s notice or payment of one month salary in lieu of notice.
It is not in dispute that this clause, in a letter of appointment of an employee under probation only operates to regulate the termination of that employment during that probationary period. If the contract is one with statutory flavor this clause has no application once the employment has been confirmed.
The claimant employment was confirmed via Exhibit CW2, this removed the termination of the claimant outside the stipulation in Exhibit CW1. The position of the court is supported by the provision of S.17 (1) of the Federal Road Safety Commission Act which provides:
1) The service of members of the corps under this Act shall be deem to be Public Service of the Federation within the provisions of S.318(1) of the Constitution of the Federal Republic of Nigeria, 1999.
There is no doubt that a contract of employment adjudged to be a contract of Public Service is a contract with statutory flavor. The Court of Appeal in West African Examination Council & Ors. V. Mrs. Nkoyo Edet Ikang [2011] LPELR – 5098 (CA) defined a contract with statutory flavor thus:
A contract of employment with statutory flavor is one in which the conditions for appointment and determination of such appointment are governed by prescribed conditions in the relevant statute so that the terms are regulated by the provisions made in the statute. Such an employment can only validly be determined in compliance with or satisfaction of the statutory provision. An employment which is protected by statute must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the procedure provided for in the statute would be void and of no effect.
See Ibama V. SPDC (NIG) Ltd. [2005] 17 NWLR pt 954 at 364.
The statute referred to here would be no other law but the Road Safety Commission (Establishment) Act).
S.5 of the Road Safety Commission Act, empowers the Road safety Commission to make regulations generally for carrying out the objectives of the Act. Acting on this section the commission has made the Road Safety Commission (Establishment) Act 2007: Regulations on Maintenance of Discipline 2013. This is made pursuant to S.5 (e). The regulations on maintenance of discipline contains the various offences for which disciplinary measures can be taken against an employee of the commission. S. 48 (1) clearly list the various punishment that can be recommended against an employee by the FRSC Disciplinary Panel. This punishment in S.48 (1)(b) includes termination.
It is the decision of this court that a staff or employee of the commission whose appointment has been confirmed can only be terminated upon the commission of an offence and the recommendation of the FRSC Disciplinary Panel.
The combined effect of the main Act and the regulation on maintenance of discipline being a subsidiary legislation made pursuant to the Road Safety Commission (Establishment) Act cloths the employment of the claimant in this suit with the status of an employment with statutory flavour.
It is not the intention of the legislature that an employee of the defendant whose appointment has been confirmed can be terminated with a month’s notice or salary in lieu of notice. This so because it is the intention of Public Policy that an employee in public service enjoy the full tenure of his employment and at the end retire honourably with the benefits accruable to him except where terminated on the grounds of misconduct.
The position held by this court is buttressed by the decision in the case of Mallam Mohammed M. Alhassan V. Ahmadu Bello University Zaria & Ors. [2009] LPELR – 8138 (CA) where the court held:
The law is, where the conditions for appointment or determination of a contract of service are governed by the provisions of a statute, such that a valid determination or appointment is predicated on satisfying such statutory provisions, such contract is said to enjoy statutory protection. The contract is determinable not by the parties but only by the statutory pre-conditions governing its determination.
See also Lievwore V. Nepa [2002] 13 NWLR (pt 784) p. 417
The court of Appeal went further to hold:
Furthermore, in Igwilo V. Central Bank of Nigeria [2009] 9 NWLR pt. 672 p.302. it was stated that in the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for termination. But in the termination of a confirmed officer, the procedure for termination must be followed, otherwise the termination is invalid where the officer is guilty of misconduct or breach of regulation, then a Lis inter partes arises and there arises also a need for a hearing before deciding his guilt. In that respect, there is a case for an administrative body acting judicially. The principles of fair heaving binding on judicial bodies are automatically imported, though the manner of hearing will still depend on the particular circumstances. It was further held in Igwilo’s case that in public employment, where the employee is qualified by appointment for a permanent and pensionable position, and has actually satisfied the conditions, there should be in the interest of justice, a presumption that the employment cannot be terminated by mere notice but should be terminated only on misconduct or other specified reasons.
On the strength of the above cited authority this court cannot agree with the defendant counsel that the defendant can terminate the employment of the defendant by one month notice or salary in lieu of notice. I hereby hold that the employment of the claimant being one with statutory flavor the defendant was wrong in terminating the employment of the claimant in this suit by directing the claimant to go and receive a month salary in lieu of notice coined in the word ‘entitlement’. In the light of the above, the letter of termination of the employment of the claimant in Exhibit CW3 is hereby set aside. The termination is hereby declared null and void and of no effect whatsoever.
The defendant has contended that assuming the termination of the claimant was wrongful which I have so declared, that the remedy of the claimant is in payment of damages. Here again I disagree with the defence counsel’s position. The contract of employment between the claimant and the defendant was not a master servant contract of employment which remedy lies in award of damages. See Osisanya V. Afribank Nig. Plc. [2007] LPELR -2809 (SC).
The law is settled and it is that while an order of re-instatment cannot be ordered in a master/servant contract of employment. The position is different with respect to an employment with statutory flavor such as that between the claimant and the defendant.
In the case of Adefemiwa V. Osun State College of Education [2007] LPELR – 8760 CA the court held.
In other words, re-instatement is not ordinarily the remedy for breach of contract of service, but exceptions to this include, where the contract of employment has statutory flavor.
In Ifeta V. Shell Petroleum [2006] 4 SCNJ-111 the Supreme Court re-echoed this position when the court held
As a general rule, reinstatement is not ordinarily the remedy for breach of contract of service. Special circumstances will be required before such a declaration is made, such special circumstances have been held to arise where the contract of employment has a legal or statutory flavor thus putting it over and above ordinary master and servant relationship. . .
On the strength of this authority, it is the decision of this court that having pronounced the contract of employment between the claimant and the defendant to be one with statutory flavor, this is an appropriate case in which an order of re-instatement can be made by this court. This court hereby orders the reinstatement of the claimant back into the employment of the defendant.
I have earlier in this judgment declared the termination of the claimant as null and void. Also having also made an order – re-instating the claimant, this court has the power to order the payment of backlog of the claimant’s salaries as claimed. In Olaniyan & Ors. V. University of Lagos & Anor. [1985] LPELR – 2565 (SC); the Supreme Court while considering the effect of re-instatement held:
I do not take the word re-instatement to be a term of art. (see Hodge V. Uter-Electric Ltd. [1943] IKB 462 at 466) its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect, and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period.
See also Morris V. Gestetner [1973] 1WLR 1373 at 1382.
On the strength of the above cited authority this court orders the defendant to forthwith computer and pay to the claimant all his outstanding arrears of salaries allowances and all other entitlements from the 12th November, 2015 to the date of this judgment.
The claimant also claims N2 million as general damages against the defendant. There is no dispute that the unlawful termination of the employment of the claimant has caused him some inconvenience. Having found that the termination was unlawful, I am inclined to award general damages against the defendant. I hereby award the sum of N500,000 as general damages against the defendant in favour of the claimant.
On the whole the claims of the claimant succeeds. Judgment is hereby entered in favour of the claimant in the following terms:
1) It is hereby declared that the purported termination of appointment of the claimant by the defendant through a letter dated 12th November, 2015 is null and void and of no effect whatsoever.
2) The letter of termination dated 12th November, 2015 is hereby set aside and the claimant is re-instated into the service as a staff of the defendant.
3) The defendant is hereby ordered to compute and pay to the claimant all his arrears of salaries, increments allowances and all other entitlement from the 12th November, 2015 to the date of this judgment.
4) The defendant shall pay the sum of N500,000 as general damages to the claimant for the unlawful termination of this claimant’s appointment.
The defendant shall comply with the terms of this judgment within 30 days from today.
Judgment is entered accordingly.
