MR. I. O. ADEFEMIWA V. OSUN STATE COLLEGE OF EDUCATION, ILESA
(2007)LCN/2567(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2007
CA/I/167/2006
RATIO
LABOUR LAW – CONTRACT OF SERVICE : WHAT HAPPENS WHEN A CONTRACT OF SERVICE PROTECTED BY STATUTE IS TERMINATED IN A MANNER NON-COMPLIANT WITH STATUTORY PROVISION
“The general principle is that where a contract of service is protected by statute, and the removal of a person is predicated upon non-compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void – see Olaniyan V. Unilag (supra), Olatunbosun V. NISER Council (1988) 3 NWLR (Pt. 80) 25 & Adeniyi V. Governing Council of Yabatech (supra) where the Supreme Court added – It is important to observe the difference in status between these contracts of personal service, and contracts of service which enjoy statutory protection. The latter can only be terminated in the manner prescribed by the governing statutory provision. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision. This is the fundamental difference between contracts having a statutory flavour and ordinary contracts of personal service” PER AMINA ADAMU AUGIE J.C.A.
LABOUR LAW- BREACH OF CONTRACT OF SERVICE: WHETHER ORDINARILY REINSTATEMENT IS THE REMEDY FOR BREACH OF CONTRACT OF SERVICE
“In other words, reinstatement is not ordinarily the remedy for breach of contract of service, but exceptions to this include, where the contract of employment has statutory flavour – see Ifeta V. Shell Petroleum (supra), ironically cited by the Respondent, where the Supreme Court held as follows- “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 flavour thus putting it over and above ordinary master and servant relationship. Equally so, where a special legal status such as a tenure of public office is attached to the contract of employment”. And U.N.T.H.M.B. V. Nnoli (supra), where Ogwuegbu, JSC said as follows- “The Judgment of the learned trial Judge confers on the Respondent a right to be placed de facto in her original position i.e. a right to be reinstated since her retirement was declared invalid, null and void. In law, she was never legally terminated or retired from her employment. The Appellant have a duty to see that she is duly reinstated” PER AMINA ADAMU AUGIE J.C.A.
JUSTICES:
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
MR. I. O. ADEFEMIWA – Appellant(s)
AND
OSUN STATE COLLAUGIE, – Respondent(s)
AMINA ADAMU AUGIE J.C.A. (Delivering the Leading Judgment): The Appellant was a member of the academic staff of the Respondent, an educational institution established by the Oyo State College of Education Law Cap 82 Laws of Oyo State 1978, which upon the creation of Osun State in 1991 became known as Osun State College of Education. He started off with a temporary appointment as lecturer III in August 1982, which became permanent with effect from 13th September 1982, and his promotion to lecturer II was confirmed with effect from 12th September 1984, however this was short-lived as he was dismissed from the employment of the Respondent with a letter dated 29th October 1986, and signed by one “A. I. O. Ayeni, Registrar (Secretary to Council)”. The last paragraph of the letter reads-
“For the foregoing proven cases of gross professional misconduct which included victimization of female students, disrespect to the constituted authority and tearing of the students’ continuous assessment papers, the Governing Council of the College, after considering the Report of the Appointment, Promotions and Disciplinary Committee has directed that you should be dismissed from the service of the college for gross professional misconduct, with immediate effect. You should therefore handover all the College properties in your possession – -“. (Italics mine)
Aggrieved, the Appellant fried an action at the Ilesa High Court of Osun State wherein he claimed for – a Declaration that his dismissal was unlawful, null and void; an order re-instating him in the service of the Respondent; and an order that he be paid all his salaries, allowances, and/or emoluments, etc. ,
At the trial that ensued, the Appellant testified and tendered 18 Exhibits while the Respondent called two witnesses, thereafter counsel addressed the Court.
In his Judgment delivered on the 18th of May 2000, Babalola, J. found that the Appellant’s employment was tinged with statutory flavour and held –
“From the totality of the evidence before me and contents on each of the document, I believe the evidence of the Plaintiff and I find as a fact that the Defendant failed to comply with the provisions of Amended Oyo College of Education Law – – 1978. Exhibit P4 was issued in full disregard and fragrance violation of section 23 (1) (a) of the law”.
The learned trial Judge further held as follows at p. 97 of the Record, that-
“- – The dismissal of the Plaintiff from the then Oyo State college of Education, now Osun State College of Education vide letter Ref. No. OYSCE/LE/R/R0/17/VOL.IV/245 dated 29th October 1986 signed by one Mr. A.I.O. Ayeni is hereby declared unlawful null and void”.
On the prayer for re-instatement, the learned trial Judge held @ P. 98-
”I will decline to grant this declaration, which will amount to a grant of specific performance of services. And my refusal to do so is supported by the case of UNION BANK LTD Vs CHUKWULO CHARLES OGBOH (1991) 1 NWLR (pt 167) 369 – —
Having declared that his dismissal to be null and void I will later considered his relief founded in damages. Leg II of his claim therefore fails and it is accordingly dismissed”.
The lower Court also dismissed the Appellant’s claim for “all his salaries, allowances, and/or emoluments from October 1986 to the date of Judgment”, Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, which complain against the lower Court’s decision regarding the claims for re-instatement and payment of entitlements.
In line with the Rules of this Court, briefs of arguments were duly filed and exchanged, and the Appellant formulated one Issue for Determination in his brief prepared by O. A. Orewale, Esq., which was adopted by the Respondent in its own brief settled by L. A. Disu, Esq. The Issue formulated is as follows-
“Whether the learned trial Judge having declared the dismissal of the Appellant as unlawful, null and void is not entitled to order both the reinstatement of the Appellant and payment of all his salaries allowances and or emoluments up to the date of the judgment?”
There is no appeal against the lower Court’s findings that the Appellant’s “employment is tinged with statutory flavour “, and that his dismissal violated the Law regulating the procedure for terminating his employment, this appeal therefore turns on the very narrow issue of whether the lower Court ought to have made an order for his re-instatement and payment of his entitlements.
It is the Appellant’s contention that the lower Court should have proceeded to make the orders aforesaid after declaring that his dismissal was unlawful, etc.
It was argued that the lower Court’s conclusion that a Court will not grant specific performance of contract of service is erroneous in law given that his contract of employment is protected by Statute; that the case relied on by the lower Court is distinguishable from the facts of this case in that the contract of service in that case was not protected by Statute and as such the issue of reinstating the Respondent in that case did not arise; that a Court will readily order specific performance of the contract of service where the contract is tinged with statutory flavour, citing Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599, Adeniyi V. Governing Council of Yabatech (1993) 6 NWLR (pt 300) 426; and that the legal consequence of declaring his dismissal unlawful, null and void is that the Appellant’s contract of employment with the Respondent still subsists as the lower Court’s Judgment confers on him the right to be placed in his original position as an academic staff of the Respondent, citing Shitta-Bey V. F.P.S.C. (1981) 1 5.C. 4, Olaniyan V. University of Lagos (supra), U.N.T.H.M.B. V. Nnoli (1994) 8 NWLR (Pt. 363) 376, Ogieva V. Igbinedo (2004) 14 NWLR (Pt. 894) 467 & Saliman V. Kwara Poly (2006) 5 NWLR (pt. 974) 477. It is on the strength of these authorities that the Appellant urged this Court to hold that since the lower Court has declared his dismissal unlawful, null and void, he is entitled to an order of reinstatement and payment of his entitlements, The Respondent however submitted that such an order will amount to granting an order of specific performance of service, which is an equitable relief granted at the discretion of the Court, citing First Bank V. Olufemi Songonuga (2005) 13 WRN 73; Ughelli South L.G.C. V. Edojakwa (2006) 7 WRN 54, Olayiwola & Sons V. F.R.N. (2006) 8 WRN 108; and that in the circumstances of this case, a declaration that the contract still subsists will rarely be made, citing Ifeta V. Shell Petroleum (2006) 4 SCNJ 111. Further citing Owah Unik Consultants V. Chevron (2006) 2 WRN 167, this Court was urged not to interfere with the lower Court’s decision since it has not occasioned any miscarriage of justice, and there is no evidence of erroneous conclusion from “failure to appraise and ascribe probative value to the evidence before it”.
Now, contrary to the Respondent’s line of argument, it is immaterial to this appeal whether or not the lower Court properly appraised or ascribed probative value to the evidence before it because, as I pointed out earlier, the Appellant’s complaints in his Grounds of Appeal is that the lower Court erred in not ordering his re-instatement after finding that his employment had statutory flavour and declaring that his dismissal was unlawful, null and void.
The general principle is that where a contract of service is protected by statute, and the removal of a person is predicated upon non-compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void – see Olaniyan V. Unilag (supra),
Olatunbosun V. NISER Council (1988) 3 NWLR (Pt. 80) 25 & Adeniyi V. Governing Council of Yabatech (supra) where the Supreme Court added –
It is important to observe the difference in status between these contracts of personal service, and contracts of service which enjoy statutory protection. The latter can only be terminated in the manner prescribed by the governing statutory provision. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision. This is the fundamental difference between contracts having a statutory flavour and ordinary contracts of personal service. Accordingly, since the compulsory retirement of the Appellant is void, his contract of service with the Respondent is still subsisting“. (Italics mine)
In other words, reinstatement is not ordinarily the remedy for breach of contract of service, but exceptions to this include, where the contract of employment has statutory flavour – see Ifeta V. Shell Petroleum (supra), ironically cited by the Respondent, where the Supreme Court held as follows-
“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 flavour thus putting it over and above ordinary master and servant relationship. Equally so, where a special legal status such as a tenure of public office is attached to the contract of employment”.
And U.N.T.H.M.B. V. Nnoli (supra), where Ogwuegbu, JSC said as follows-
“The Judgment of the learned trial Judge confers on the Respondent a right to be placed de facto in her original position i.e. a right to be reinstated since her retirement was declared invalid, null and void. In law, she was never legally terminated or retired from her employment.
The Appellant have a duty to see that she is duly reinstated”.
In this case, the lower Court dismissed the Appellant’s Claim (ii) for an order reinstating him to his status as a member of staff of the Respondent because it “will amount to a grant of specific performance of services”, and in so doing it relied on the decision in Union Bank V. Ogboh (supra), which as the Appellant, rightly submitted, is easily distinguishable from this case.. In that case of Union Bank V. Ogboh (supra), the Supreme Court held as follows-
“There is no doubt that the Respondent’s employment is not based on Statute. I hereby uphold the submission of Aluko-Olokun Esq., that the contract in question has no statutory flavour. In consequence whereof I hereby set aside the Order of reinstatement of Yahaya, J.”
The reverse is the case in this appeal. The lower Court held that the Appellant’s employment had statutory flavour, which “creates an atmosphere relatively different from the ordinary relationship of master and servant” – see Olaniyan V. University of Lagos (supra), and the effect of his dismissal being declared null and void is that he is deemed to still be a member of the Respondent’s academic staff and is entitled to return to his duty post – see
Shitta-Bey V. F.P.S.C. (supra), U.N.T.H.M.B. V. Nnoli (supra), Ogieva V. Igbinedo (supra) & Saliman V. Kwara Poly (supra). In other words, having held that the Appellant’s employment had statutory flavour and that his dismissal by the Respondent was unlawful, null and void, the lower Court should have gone one step further and made the order for his reinstatement.
In the circumstances, this appeal must be resolved in favour of the Appellant, and it is so resolved. The appeal therefore succeeds and is hereby allowed.
The decision of the lower Court refusing the order for reinstatement is set aside and in its place is entered all order directing the Respondent to reinstate the Appellant as a member of its staff without prejudice to the entitlements and promotion, which might have accrued to him since the 29th of October 1986, when he was purportedly dismissed by the Respondent.
The Appellant is also awarded costs assessed at N30, 000.00.
K. B. AKAAHS, J.C.A: I had a preview of the judgment of my learned brother, Augie J.C.A. in which the main issue in the appeal was succinctly addressed i.e., having found that the Appellant’s employment was tinged with statutory flavor and his dismissal declared unlawful, null and void, the only option open to the learned trial Judge was to order for his reinstatement – see OLANIYAN v UNIVERSITY OF LAGOS (1985) 2 NWLR (PT 9) 599. It is the view held by the Court of Appeal, which was discountenanced by the Supreme Court in Olaniyan’s case (supra) that the learned trial Judge held on to in refusing to reinstate him. The Appellant’s employment was not a purely master and servant relationship neither did the Appellant hold office at the pleasure of the employer and so the reliance placed by the learned trial Judge on the case of UNION BANK LTD v CHUKWULO CHARLES OGBHO (1991) 1 NWLR (Pt. 167) 369 in declining to order his reinstatement was not based on the correct legal principle affecting the employment. And the only instance, to my knowledge, where the Court, faced with a similar situation did not order reinstatement is where the Respondent died before the appeal to the Supreme Court was determined – see CENTRAL BANK OF NIGERIA v IGWILLO (2007) 14 NWLR (PT.1054) 393. Akintan J.S.C in the lead judgment varied the order for reinstatement and said at page 422 – 423-
“As I stated above, the Respondent’s employment is one with statutory flavor, where therefore, a case of wrongful termination of such appointment is made out, as in this case, the correct order to be made is one reinstating him but the man is now dead. He died while the appeal was pending in this Court and his widow was substituted to continue with the defense of the appeal. An order reinstating him to his post can therefore not be made. In that case the order of reinstatement made by the lower Court will have to be varied – – – –
(1) The – order for reinstatement of the Respondent made by the Court below is affirmed and remained effective till the Respondent’s death on 18th July, 2002 (2) the sum of N20, 112, 400 shall be paid to the Respondent being arrears of salary and allowances from the date of his suspension on 8th May 1992 up to September 2000 based on the calculations set out in paragraph 14 of the counter-affidavit deposed to and filed in respect of the Appellant’s motion for stay of execution.
(3) Arrears of salary and allowances from September 2000 up to 18th July 2002 when the Respondent died…. And (4), entitlements due to an officer of the Respondent’s rank who dies in office”.
Since nothing has happened to the Appellant in this appeal, he should be reinstated to the post he held before his dismissal and should be paid all arrears of salaries and other entitlements he was enjoying before the dismissal. I abide by the order made on cost.
CHIDI NWAOMA UWA, J.C.A: I had the privilege of reading in advance the judgment just delivered by my learned brother A.A. Augie, JCA.
I agree with his reasoning and conclusions. I have nothing more to add. I also allow the appeal and abide by the consequential orders including orders as to costs.
Appearances
Ayodele Badejo, Esq For Appellant
AND
Olu Ogundele, Esq For Respondent
EGE OF EDUCATION, ILESA – Respondent(s)
