NONGU V. LOCAL GOVERNMENT SERVICE COMMISSION & ANOR (2011)

NONGU V. LOCAL GOVERNMENT SERVICE COMMISSION & ANOR

(2011)LCN/4719(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 13th day of July, 2011

CA/J/152/2002

RATIO

GROUNDS OF APPEAL: WHETHER A GROUND OF APPEAL CAN ONLY CHALLENGE A RATIO DECIDENDI

… a ground of appeal must inter alia challenge the ratio decidendi and not mere obiter – dicta. See Saraki & Ors V. Kotoye (1992) 3 N.S.C.C. 331. It is settled that it is never everything that is uttered by the trial Judge in the course of arriving of a decision that is binding. His reasoning while evaluating evidence may gather many imports, some of which merely helped him in the decision making process and others of no moment. It is only the quintessence of the reasons for his decision that is best described as ratio – decidendi. PER UCHECHUKWU ONYEMENAM, J.C.A.

ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION FORMULATED IN A BRIEF OF ARGUMENT MUST BE DISTILLED FROM THE GROUNDS OF APPEAL FILED

Issues for determination formulated in a brief of argument must be distilled from the grounds of appeal filed. Any issue that is not related to any of the grounds filed is irrelevant and goes to no issue. Consequently any argument in the brief in support of such issue ought to and must be discountenanced by the court. See Amadi V. NNPC (2000) 6 SC (Pt.1) 66 at 72. Shitta-Bey V. A. – G. Federation (1998) 10 NWLR (Pt. 570) 392. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT OF SERVICE: WHETHER SPECIAL CIRCUMSTANCES WILL BE REQUIRED BEFORE THE COURT CAN GRANT SPECIFIC PERFORMANCE OF A CONTRACT OF SERVICE; WHEN WILL SUCH SPECIAL CIRCUMSTANCES ARISE

The position of the law is that the court will not grant specific performance of a contract of service. Therefore, a declaration to the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and it is normally made of the discretion of the court. Such special circumstances have been held to arise where: (a) The contract of employment has a legal and statutory flavour thus putting it over and above the ordinary master and servant relationship and (b) A special legal status such as tenure of public office is attached to the contract of employment. See NNPC V. Idoniboye-Obu (1996) 1 NWLR (pt. 427) 655 CA; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 SC; Shitta-Bay V. Federal Public Service Commission (1981)1 SC 40. It follows that specific performance of the contract of employment or reinstatement of the servant to his position in the master’s employment may only be ordered where such employment enjoys statutory flavour. See U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) 376; Kabelmetal Nig. Ltd V. Ativie (2002) 10 NWLR (Pt. 775) 250. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT OF SERVICE: WHEN IS A CONTRACT IS SAID TO HAVE STATUTORY FLAVOUR

A contract is said to have statutory flavour when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. Hence, such an employment is said to enjoy statutory flavour. See Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599 SC; Shitta-Bey V. Federal Civil Service Commission (1981) 1 SC 40; Ridge v. Baldwin (1963) 2 ALL ER 66). However, the fact that an organization or institution is a statutory body does not ordinarily mean that the conditions of service of its employees are protected by statute. Thus it has been held that the appointment of the claimant who worked in the Nigerian, Gas Co. Ltd. was not governed by any statutory provision. The court further stated that the appointment did not enjoy statutory protection and cannot be said to have statutory flavour. This is so, notwithstanding the fact that the employer is a creation of statute and is a statutory corporation. See Nigerian Gas Co. Ltd. V. Dudusola (2005) 18 NWLR (Pt. 957) 292 CA. PER UCHECHUKWU ONYEMENAM, J.C.A.

CONTRACT OF SERVICE: REQUIREMENTS OF THE RULES AND REGULATIONS CLAIMED BY EMPLOYEE TO HAVE GIVEN ITS EMPLOYMENT STATUTORY FLAVOUR AND PROTECTION

RAISING OF A POINT SUO MOTO: WHETHER A COURT CAN PROCEED TO RESOLVE A POINT RAISED SUO MOTO WITHOUT GIVING THE PARTIES ON OPPORTUNITY TO BE HEARD ON THE POINT

On no account should a court raise a point suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other without giving the parties on opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See Ezeanya V. Okeke (1995) 4 SCNJ 60 @ 89; Commissioner of Works Benue State V. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407 @ 420; Ogiamen V. Ogiamen (1967) ANLR 203 @ 207. PER UCHECHUKWU ONYEMENAM, J.C.A.

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CASE FOR WRONGFUL TERMINATION OF EMPLOYMENT

The general rule is that a plaintiff succeeds on the strength of his case and not on the weakness of the defence. In cases of termination of appointment, the claimant who seeks declaration that the termination of his appointment was wrongful has the onus to prove the terms and conditions of his employment. It is not in principle for the employer who is a defendant to an action brought by the employee to prove this. See Nigerian Gas Co. Ltd. Dudusola (2005) 18 NWLR (Pt.957) 292. PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

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

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

PHILIP TERWASE NONGU Appellant(s)

AND

1. LOCAL GOVERNMENT SERVICE COMMISSION
2. ATTORNEY GENERAL BENUE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the leading Judgment): This is an appeal against the decision of the Benue State High Court sitting of Makurdi, delivered by D.T. Ahura, J. in suit No MHC/44/91 on the 2nd day of June, 2000.
The appellant, who was the plaintiff of the Lower Court had sued the respondents claiming the following reliefs:
(a) “A declaration that the purported dismissal and termination of plaintiff’s appointment by letters ref No GWE/S/PEP/284/Vol. 1/134 of 12th November, 1990, and GWE/S/PER/254/Vol. 1/143 of 27th February, 1991, are illegal, unconstitutional, null and void, and of no effect whatsoever.
(b) A declaration that plaintiff is still in the employment of the 1st defendant.
(c) An order directing the 1st defendant to reinstate plaintiff to his status as a public servant and rank as an assistant organizing secretary (Sports) with the 1st defendant, without prejudice to all such entitlements and promotions that should have accrued to the plaintiff during the period of the purported termination.
(d) An order directing the 1st defendant to pay all the plaintiff’s entitlements as should have accrued during the period of the purported termination.” (See P. 26-27 of the record.
By letter ref. GLG/S/EST/37/Vol.1/91 dated 27:2:86 (Exhibit 1), the appellant was offered a Permanent and pensionable appointment as an assistant sports secretary, on G.L. 03/1, by the Gwer Local Government of Benue State. The appointment was to be governed by the General Orders/ Civil Service Rules and other Government Regulations pertaining to pensionable staff.
Upon his appointment, appellant was sent by his employers to a course of the National Institute for Sports, Lagos, where he obtained a Certificate in sports management and administration, based on which he was elevated to G.L. 07/1.
On the 20th day of October, 1988, the 1st respondent terminated appellant’s appointment on the ground that he had obtained the appointment with a forged WASC result. The appellant denied the allegation of forgery and requested a withdrawal of the letter of termination.
By Exhibit 12 -police report, the appellant was exonerated of the act although the police did not make reference to the respondents nor call for the appellant’s file in the course of their investigation. After waiting for almost a year without being reinstated by the 1st respondent, appellant applied afresh to the Makurdi Local Government for the post of assistant sports organizing secretary. On the 18:8:89, the 1st respondent offered appellant a permanent and Pensionable appointment as assistant sports organizing secretary on GL 07/1. The appointment letter is Exhibit 6. On the 12/11/90 vide Exhibit 7, 1st respondent unceremoniously dismissed appellant from its service, which dismissal was by Exhibit 8, commuted to termination.
Appellant’s challenge of the terminations was predicated on the ground that the same having been made in violation of his fundamental right to fair hearing, they were illegal, unconstitutional, null and void and of no effect. Accordingly, appellant sought a reinstatement to his Position as public officer and his rank as an assistant sports organizing secretary.
Pleadings were filed and exchanged where upon the case went to trial. Appellant testified for himself and called one witness, while the respondents called two witnesses in proof of their case. At the close of evidence, the trial court ordered the filing of written addresses by counsel to the parties. In his judgment the learned trial Judge held that based on the pleadings and evidence before the court the plaintiff was not given fair hearing before his termination. He went further to hold that:
“On the whole I find and hold that the plaintiff has proved his case and is entitled to relief. I hereby declare that the termination of the appointments of the plaintiff was illegal and unconstitutional.”
Consequent upon this, the learned trial Judge ordered that the appellant be paid one month’s salary in lieu of notice for each of the terminations. It is against the refusal of the lower court to grant the specific reliefs claimed by appellant, that appellant has brought this appeal with five grounds.
In the appellant’s brief of argument dated 16:9:02 and filed 17:9:02, five issues were distilled for determination:
1. “Having found that appellant had proved that he was removed without a hearing, was it proper for the court to have refused to grant appellant’s reliefs by ordering his reinstatement to his position as a public officer?
2. Was it competent for the court to have ordered that appellant be paid one month’s salary in lieu of notice for each of the terminations when appellant did not seek any such relief from it?
3. Was the question of appellant’s appointment being clothed with statutory flavour, one that arose on the pleadings, and if not, was it competent for the court, to have suo motu raised and determined the some without reference to the parties?
4. Did the court properly resolve the second issue for determination and if not, did its failure to do so, occasion a miscarriage of Justice?
5. Whether Exh. 13, authored by DW1, could ground the finding by the court that appellant had confessed to having amended his MOCK-WASC result?”
The respondents in their brief of argument dated 2:4:09 and filed on 9:4:09 but deemed filed on 12:4:11, formulated three issues for determination:
1. “Whether the Lower Court was right in not making an order of reinstatement of the appellant to his job having declared the terminations of his appointment illegal and unconstitutional.
2. Whether the Lower Court was right in making an order for payment of one month’s salary in lieu of notice for each of the terminations.
3. Whether the 1st respondent had the right to terminate appellant’s appointment on allegation of forgery without first subjecting him to o successful criminal prosecution”.
At the hearing of the appeal on 13:6:2011, F.M.E. Nezan (Mrs), learned counsel for the appellant leading O.OYEDOKUN Esq adopted the appellant’s brief along with a reply brief dated 20:4:11 and filed on 27:4:11. She urged the court to allow the appeal. C.M. Chaha (Mrs.) Assistant Director Civil Litigation, Ministry of Justice, Benue State, for the respondents adopted the respondents’ brief and urged the court to dismiss the appeal.
I want to observe at this point that a ground of appeal must inter alia challenge the ratio decidendi and not mere obiter – dicta. See Saraki & Ors V. Kotoye (1992) 3 N.S.C.C. 331. It is settled that it is never everything that is uttered by the trial Judge in the course of arriving of a decision that is binding. His reasoning while evaluating evidence may gather many imports, some of which merely helped him in the decision making process and others of no moment. It is only the quintessence of the reasons for his decision that is best described as ratio – decidendi. Grounds four and five of the grounds of appeal are not grounds against the decision of the lower court nor do they challenge its ratio – decidendi. They are rather attacking findings or statements, which are not part of the formal judgment or order of the lower court. The grounds are founded on statements which have no direct binding effect on the parties. Grounds four and five are not competent grounds in my humble opinion. I accordingly strike out grounds four and five.
Issues nos. 4 and 5 of the appellant’s issues stem from the struck out grounds.
Issues for determination formulated in a brief of argument must be distilled from the grounds of appeal filed. Any issue that is not related to any of the grounds filed is irrelevant and goes to no issue. Consequently any argument in the brief in support of such issue ought to and must be discountenanced by the court. See Amadi V. NNPC (2000) 6 SC (Pt.1) 66 at 72. Shitta-Bey V. A. – G. Federation (1998) 10 NWLR (Pt. 570) 392. I shall strike out issues nos. 4 and 5 of the appellant’s issues and discountenance every argument in their support. Issues nos.4 and 5 are struck out.
I have carefully examined the issues formulated by both counsel. Having struck out issues nos. 4 and 5, only 3 issues are left of the appellant’s brief for determination. The issues formulated by the appellant with little modifications will adequately answer the questions raised in this appeal. I will merge the 3 issues into one issue, as a result the sole issue that calls for determination is:
Whether having determined that the appellant’s employment was terminated without fair hearing and evidence of the nature of the appellant’s employment not before the court; the order made by the trial court was appropriate in the circumstances.
Mrs. Nezan of counsel submitted on this issue which is distilled from grounds one, two and three of the grounds of appeal that since the trial court had found that the appellant was not given fair hearing and held his terminations unconstitutional, the lower court ought to have made an order reinstating the appellant to his rank and status of a public officer. She contended that the legal consequence of an act being declared unconstitutional is that it becomes void and of no legal effect. She submitted that breach of fair hearing vitiates the decision reached in violation of it. She referred to: Ayisa V. Akanji (1995) 7 SCNJ 245 @ 257; Ojengbede V. Esan (2002) FWLR (Pt. 90) 1406 @ 1420; EkpenKhio & ors V. Egbadon (1993) 7 NWLR (Pt. 308) 717 @ 744.
Mrs. Nezan further submitted that once the terminations of the appellant’s employment was declared illegal and unconstitutional, the immediate effect would have been to take the appellant back to status quo ante. She placed reliance on: UNTH V. Nnoli (1994) 10 SCNJ 71; Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419 @ 448; Adigun V. Attorney General Oyo State (1987) 1 NWLR (Pt. 53) 678 @ 744.
Learned counsel submitted that once the trial court found that the appellant had proved his case, it was under duty to grant the specific reliefs which appellant sought in his claim before it. On this issue it was learned counsel’s further submission that the trial court committed a grave error in law when it granted the appellant the relief he did not seek. She referred to a plethora of cases in support: Ekpenyong V. Nyong (1975) 2 SC 71 @ 80; Akinterinwa V. Oladunjoye (2000) FWLR (Pt. 10) 1690 @ 1714; Chief Registrar High Court of Lagos State & Anor V. Vamos Navigation Ltd. (1976) ALL NLR 10 at 16; Ukubule V. Oyagbulu (1990) 4NWLR (Pt. 147) 723 @ 744; Ugo V. Obiekwe (1989) 1 NWLR 566 @ 585; Awosike V. Sotunbo (1992) 5 NWLR (Pt. 243) 514 @ 529; Ajikawo V. Ansaldo (Nig) Ltd (1991) 2NWLR (Pt. 173) 359 at 372. It was counsel’s contention that the award of one month’s salary in lieu of notice for each of the terminations was not only incompetent, it amounted to a denial of justice. She urged the court to set aside the award by the trial court as it was made without jurisdiction, while relying on: Nalsa & Team Associates V. NNPC (1991) 8 NWLR (pt. 212) 652 @ 679.
In furtherance, Mrs. Nezan submitted that since the question of appellant’s employment being clothed with statutory flavour did not arise from the pleadings, the learned trial Judge erred in law when it suo motu raised the issue and without availing the parties the opportunity of addressing it on same, proceeded to determine it. She cited: Commissioner of Works Benue State V. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407 @ 420; Ogiamen V. Ogiomen (1967) ANLR 203 @ 207; Ezeanya v. Okeke (1995) 4 SCNJ 60 @ 89. It was learned counsel’s further submission that in our adversarial system of adjudication of justice, no one can have a decision entered against him without being heard by reason of audi alteram partem. She relied on: Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566 @ 582. Learned counsel also submitted that the evidence before the lower court showed that the appellant’s employment with the 1st respondent was Permanent, pensionable and was governed by the Civil Service rules. She submitted that by the decision in Shitta-Bey V. F.C.S.C. (1981) 1 SC 40, all civil servants to whom the Civil Service Rules apply, enjoy a legal status which makes their employment one with statutory flavour, beyond the realms of ordinary master and servant relationship. She urged the court to set aside the order of the lower court that appellant be paid one month salary in lieu of notice for each termination. In its stead she urged the court to reinstate the appellant as per his claims in the lower court.
In reply the learned counsel for the respondent submitted that the relationship between the appellant and the 1st respondent was that of an ordinary contract of service where the later was the master and the former the servant. She contended that this being the case the employer in law had the right to terminate the servant for good or for bad or for no reason at all and upon such termination the servant was only entitled to claim damages. He relied on: Godfrey Isuevwore V. NEPA (2002) 13 NWLR (Pt. 784) 417 @ 434; Shitta-Bey V. Federal Public Service Commission (1981) 1SC 4 @ 56; to urge the court to hold that the trial court was right in refusing to order a reinstatement.
In further reply Mrs. Chaha of counsel added that by exhibit 1 the trial court was right in awarding the one month salary in lieu of notice for each of the terminations. It was also learned counsel’s submission that the law, as in the circumstances of this case allows the trial court to award relief not sought for by the party. She cited: First African Trust Bonk V. Ezegbu (1993) 6 SCNJ 122 @ 136; Adenakan Ademola V. Harold Sodipo (1992) 7 SCNJ 417. Counsel urged the court to resolve the issue in respondent’s favour.
The learned trial Judge after careful examination of the pleadings, the oral evidence and Exhibits 4, 7, 13 and 14 arrived at a conclusion that the appellant was not given fair hearing before the terminations of his appointments. The trial court went on to hold at page 102 lines 23 – 26 of the record as follows:
“On the whole, I find and hold that the plaintiff has proved his case and is entitled to relief. I hereby declare that the termination of the appointments of the plaintiff was illegal and unconstitutional”.
Mrs. Nezan of counsel is correct that once an act is declared unconstitutional, it loses its validity since it is contrary to the Grundnorm, the constitution, from where it derives its validity and legitimacy. Consequently, the act is to be declared null and void and of no effect. This has been the position of the apex court, See Adigun V. Attorney General Oyo State (1987)1 NWLR (Pt. 53) 678 @ 744 – 745, where Karibi – Whyte JSC said:
I think it is important to add that the crucial element in the application of the fundamental rights provisions is that the invalidity of the proceedings complained of does not lie in the injury or prejudice to the persons affected by virtue of the breach of the provision itself. Accordingly prejudice to the person whose right has been infringed is not a necessary requirement of the invalidity of the act consequent upon the breach. It is unnecessary to consider whether the result would have been the same had the complainant been heard… the injury if any sought for is the deprivation of the right itself, it is not quantifiable and so incalculable injury. Hence the only remedy is to nullify the resulting proceedings. ”
Learned counsel’s contention is that the learned trial Judge erred in law when he refused to declare the terminations null and void and of no effect which would have left the trial court with no option but to order the reinstatement of the appellant.
The position of the law is that the court will not grant specific performance of a contract of service. Therefore, a declaration to the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and it is normally made of the discretion of the court. Such special circumstances have been held to arise where:
(a) The contract of employment has a legal and statutory flavour thus putting it over and above the ordinary master and servant relationship and
(b) A special legal status such as tenure of public office is attached to the contract of employment. See NNPC V. Idoniboye-Obu (1996) 1 NWLR (pt. 427) 655 CA; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 SC; Shitta-Bay V. Federal Public Service Commission (1981)1 SC 40. It follows that specific performance of the contract of employment or reinstatement of the servant to his position in the master’s employment may only be ordered where such employment enjoys statutory flavour. See U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) 376; Kabelmetal Nig. Ltd V. Ativie (2002) 10 NWLR (Pt. 775) 250.

The rules and regulations which are claimed by employee to be part of the terms and conditions of employment capable of giving it statutory flavour and be of protection to the employee must:
(a) Have statutory reinforcement or of any rate, 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;
before they can be relied on to challenge the validity of that determination. In other words, before an employment can have statutory flavour, the statute must expressly make it so. Otherwise, the employment will have to be treated on the basis of the common law principle of master and servant. See Idoniboye-Obu V. N.N.P.C (2003) 2 NWLR (Pt. 805) 589. I have painstakingly examined in great details the general position of the law on when, how and effect of an employment with statutory flavour to elicit the obvious that the fact that an employment is protected by Statute can never be inferred from the mere fact that the employer is a statutory body or a creation of Statute. After the learned trial Judge declared that the appellant was not given fair hearing before his terminations, he did not proceed to declare the terminations null and void and of no effect and so order a reinstatement. Rather, he resorted to examining the nature of the appellant’s employment so as to be properly guided as to the kind of relief the appellant would be entitled to in law. After his due considerations the learned trial court come up thus:
“I find it difficult to grant the other reliefs sought because of lack of evidence on the nature of employment of the plaintiff. Since there is no evidence that the plaintiff’s appointment is clothed with statutory flavor or the like, which would have warranted a re-instatement, I take it that his case falls under simple master-servant relationship. He is entitled under the rules to a one month notice or one month salary in lieu of notice. It has not been shown that he was given one months notice in any of the two terminations. I hereby order that the plaintiff is entitled to one month’s salary in lieu of notice, on the first termination and … again another one month’s salary in lieu of notice on the second termination.” See pages 102 lines 27 – 32; 103 lines 1 – 12.
The appellant’s quarrel is that statutory flavour was not pleaded but rather pleading and evidence on the fact that the appellant was a public servant was before the court. Mrs. Nezan is correct that courts of law must limit themselves to the issues raised by the parties in their pleadings as to do otherwise might result to the denial of the parties of their right to fair hearing. On no account should a court raise a point suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other without giving the parties on opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See Ezeanya V. Okeke (1995) 4 SCNJ 60 @ 89; Commissioner of Works Benue State V. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407 @ 420; Ogiamen V. Ogiamen (1967) ANLR 203 @ 207.
The situation that confronted the lower court is different, from the position of the law through the cases I examined above; it was not a case of the learned trial Judge raising issue suo motu not granting relief not sought.
The law is firm on the relief on employee who complains of wrongful termination will be entitled to depending on the nature of his employment. Once on employee proves wrongful termination and the nature of his employment; the relief he is entitled to is automatic as the law is fixed on this. It does not therefore merely depend on the reliefs sought by the employee but what reliefs he is entitled to in law in the circumstances of the case. It will be correct to say that in an action for wrongful termination, the relief sought by the employee might not necessarily determine the relief court will grant as the relief is determined by the nature his employment. This explains why the appellant made obvious but empty effort to assert that he was a public servant with pensionable employment. Understandably the appellant was geared to words swaying the learned trial Judge to hold that his employment enjoyed statutory protection and as such he was entitled to be reinstated. Appellant’s submissions that his employment was governed by the Civil Service Rules are in the spirit of employment with statutory flavour. Little wonder, the trial court reclined to the facts and evidence placed before him and arrived of the decision that the appellant’s employment not clothed with statutory flavour he was not entitled to be reinstated. Mrs. Nezan of counsel was to my mind, under a misconception of the principles of the law when she urged that the learned trial Judge raised on issue suo motu and resolved same without counsel’s addresses. It is my view that the trial court was right when it found that there was nothing placed before the court to assist it determine the nature of the appellant’s employment as the mere fact that an employer is a statutory body is not conclusive of the fact that its employee’s employment is regulated by statute. See Azenabor V. Bayero University Kano (2009) 17 NWLR (1169) 96 @ 108. From what I have said, I hold that the trial court is not guilty of raising on issue suo motu and resolving same all by himself.
From the record, adequate facts were not placed before the learned trial Judge by the appellant to establish that he was a public servant whose employment was protected by Statute. Neither the General Orders/Civil Service Rules nor the Staff Regulations referred to in Exhibits 1 and 6 as the instruments governing his conditions of service was pleaded or tendered in evidence. The appellant did not make successful attempt to prove the nature of his employment to enable the court ascertain his appropriate remedies in law. He was conceited with the fact that: he was in the employment of a body created by statute, his employment was permanent, his employment was pensionable, so he became presumptuous that his employment had statutory flovour. It was vital in the light of the fact that it was only the nature of the appellant’s employment that could determine the reliefs open to him for the evidence that will prove the said nature of his employment to be made available to the court. It was also most important since the court cannot infer the nature of an employee’s employment simply by the institution he works for. It requires evidential proof. From the Supreme Court decision in C.B.N. V. Igwillo (2007) 4 – 5 SC 154; there are basically three categories of contracts of employment. Amongst the three, only the set whose employment is regulated or governed by statute, generally referred to as having statutory flavour is the category that is entitled to be reinstated when their termination is found to be unlawful. See also Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Shitta – Bay V. Federal Public Service Commission (1981) 1 SC. The general rule is that a plaintiff succeeds on the strength of his case and not on the weakness of the defence. In cases of termination of appointment, the claimant who seeks declaration that the termination of his appointment was wrongful has the onus to prove the terms and conditions of his employment. It is not in principle for the employer who is a defendant to an action brought by the employee to prove this. See Nigerian Gas Co. Ltd. Dudusola (2005) 18 NWLR (Pt.957) 292.
Since the appellant did not establish that his employment had statutory flavour, the inescapable obvious was for the court to hold that he had a servant and master relationship with the 1st respondent. The reliefs therefore open to him in law was that of master and servant under the common law. Also worthy of note of this point is the fact that, for the mere reason that an employment is permanent and pensionable does not entitle on employee who has been held wrongfully dismissed to be reinstated. I hold this view based on the Supreme Court decision in: Shell Petroleum Dev. Co. Ltd V. Chief Victor Sunday Olarewaju (2008) 18 NWLR (Pt. 1118) 1. In this case the respondent, a confirmed and senior career and pensionable officer of Shell Petroleum Dev. Co. Ltd. who had been in the employment of the company (appellant) for nearly 24 years during which period, he earned several promotions and commendations for outstanding performance was subsequently dismissed by the appellant. The respondent was aggrieved and he sued the appellant of the High Court. He sought several declaratory and injunctive reliefs including reinstatement, an order of payment of his salaries, allowances, bonuses and entitlements from the date of his dismissal up to the date of judgment or until his reinstatement in the appellant’s employment. In the alternative, the respondent claimed payment of several sums of money as his salaries in lieu of notice, gratuity and pension.
The trial court found that the appellant did not give the respondent a fair hearing in the course of the investigation of the allegation against the respondent before it dismissed him on the basis of the allegation. The trial court inter alia refused to order the reinstatement of the respondent. Both the Court of Appeal and Supreme Court upheld the decision of the lower court. Per Tabai, J.S.C. of 24 paras A-C said:
“…In the circumstances, I fully endorse the conclusion of the learned trial Judge that the rules of natural justice were breached in the whole process and the respondent’s dismissal based thereon cannot stand. I hold that the dismissal was wrongful, null and void and was I rightly so declared by the two courts below”.
The law has concretized on the reliefs open to a servant who has been wrongfully terminated. In a master and servant relationship, a dismissal of the employee by the employer cannot be declared null and void and of no effect whatsoever. Such termination cannot be said to be subsisting as the court cannot impose a servant on an unwilling master. The employee’s remedy is always in damages where the termination of the appointment or dismissal is held to be wrongful. See Osianya V. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565. The case of Shell Petroleum Dev. Co. Ltd (supra) is different on this point in that it was not a master servant relationship. So, although the Supreme Court declared the dismissal, wrongful, null and void, for special circumstances the court did not order the reinstatement of the respondent. From the foregoing, the learned trial Judge was right when he refused to declare appellant’s terminations null and void and of no effect since his relationship with the 1st respondent was that of servant and master. At common law, a master cannot be compelled to retain the services of his servant. No court can impose on employee on the employer. The only remedy available to the servant is an action in damages. See Osianya V. Afribank (Nig.) Plc (2007) 6 NWLR (Pt. 1031) 565; Iwuchukwu Nwizu (1994) 7 NWLR (Pt. 357) 397; Vine V. National Dock Labour Board (1956) 3 All ER 939.
Where an employee is wrongfully removed, either by a summary dismissal which is not justified or by the giving of insufficient notice, the normal remedy to which he is entitled is damages. The main head of the damages is the salary or wages which the wrongfully removed employee would have earned up to the earliest time at which the employer could validly have terminated the employment. Thus, where the contract provides that the employer could terminate the employment by giving one month’s notice in writing or one months’ salary in lieu of such notice and if the employee is dismissed without notice or salary in lieu, the employers would not be liable for more than one month’s salary. See Baker V. Denkero Ashanti Mining Corporation Ltd. (1903) 20 TLR 37.
From the plethora of cases examined above, the position of the law is not left in doubt, therefore I hold that the learned trial Judge was not only right to have held back in declaring the termination of the appellant’s employment null and void and of no effect, the issue of award of relief not sought for in the circumstances of this case is of no moment, he was also correct in refusing to order a reinstatement of the appellant, and abode with the position of the law when he awarded one month’s salary in lieu of notice respectively for each of the two terminations. Having said this, I resolve this sole issue in favour of the respondent. Appeal therefore fails and is accordingly dismissed. The decision of the High court of Benue State, Makurdi in Suit No. MHC/44/91 delivered by D.T. Ahura, J. on 2:6:2000 is upheld. Parties shall bear their costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: The appellant in this appeal as plaintiff before the trial court sought the following reliefs:
a. “A declaration that the purported dismissal and termination of plaintiffs appointment by letters ref No. GWE/S/PER/284/VOL.1/134 of 12th November, 1990, and GWE/S/PER/284/VOL.I/143 of 27th February, 1991, are illegal, unconstitutional, null and void, and of no effect whatsoever.
b. A declaration that plaintiff is still in the employment of the 1st defendant.
c. An order directing the 1st defendant to reinstate plaintiff to his status as a public servant and rank as an Assistant organizing secretary, (sports) with the 1st defendant, without prejudice to all such entitlements and promotions that should have accrued to the plaintiff during the period of the purported termination.
d. An order directing the 1st defendant to pay all the plaintiff’s entitlements as should have accrued during the period of the purported termination”.
At the conclusion of trial, the learned trial Judge entered judgment in the appellant’s favour for wrongful termination of his appointments on the ground that he was not given a fair hearing. The learned trial Judge did not grant the prayer for reinstatement, but ordered that he be paid one month’s salary in lieu of notice for each of the terminations.
The appellant was dissatisfied with the judgment and filed a notice of appeal containing five grounds of appeal. The appellant formulated 5 issues for the determination of the appeal. My comments are in relation to issue 3:
“Was the question of appellant’s employment being clothed with statutory flavor one that arose on the pleadings, and if not, was it competent for the court to have suo motu raised same and determined the same without reference to the Parties?”
In my humble view, the first question raised can be answered soundly in the affirmative. The appellant in paragraph 26 (c) of his statement of claim sought an order of reinstatement to his status as a public servant.
In the case of C.B.N.V. Igwillo (2007) 4-5 SC, 154 @ 172 the Supreme Court set out the categories of contracts of employment. They are:
a. Those regarded as purely master and servant;
b. Those where a servant is said to hold office at the pleasure of the employer;
c. Those where the employment is governed by statute, often referred to as having statutory flavor.
See also: Imoloame v. W.A.E.C. (1992) A NWLR (265) 303; Shitta – Bey V. University of Lagos (1981) 1SC 40.

In Ativic V. Kabelmetal (Nig) Ltd. (2008) 10 NWLR (1095) 209 @ 415, C-G, Taba; JSC explained the position of the law thus:
“It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof as in this case, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more. See Katto V. C.B.N. (1999) 6 NWLR (pt. 607) 390 @ 406; Western Nigeria Development Corporation v. Abimbola (1996) 4 NSCC 172; (1966) 2 SCNLR 21; Nigeria Produce Marketing Boad V. Adewunmi (1972) 7 NSCC 662. In such cases, the award of general damages is inappropriate. Nor is the wronged employee entitled to decree of reinstatement; the rationale being that no servant can be imposed by the court on an unwilling master or employer. Union Bank of Nigeria Ltd V. Ogboh (1995) 2 NWLR (Pt. 380) 674 @ 664. It has to be emphasized that such cases of ordinary contracts of service are quite distinguishable from contracts of service which are statutorily protected such as the case of Olaniyan & Ors V. University of Lagos. (1985) 2 NWLR (pt.9) 599 where reinstatement can properly be orders (sic).” (Emphasis mine).
See also: S.P.D.C. Ltd. V. Olarewaju (2008) 18 NWLR (1118) 1 @ 27 C-F; Ziidech V. R.S.C.S.C. (2007) 3 NWLR (1022) 554 @ 577-578 G-A.
In light of the authorities referred to above, I am of the view that once the appellant sought an order of reinstatement, which is peculiar to employment with statutory flavor, he put the nature of his contract of employment in issue. The court had a duty to determine whether the employment was one in which reinstatement could be ordered. I am therefore unable to accept the contention of learned counsel for the appellant that the learned trial Judge raised and determined the issue suo motu. Having failed to show that his employment was one with statutory flavor the learned trial judge was right to award one month’s salary in lieu of notice in respect of each of the terminations.
For these and the more detailed reasons ably advanced in the lead judgment, with which I concur, I also find the appeal to be lacking in merit and dismiss it accordingly.
I affirm the decision of the High Court of Benue State, Makurdi in Suit No: MHC/44/91 delivered on 02/06/2000 and abide by the order on cost as contained in the lead Judgment.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have the privilege of reading in draft the judgment of my learned brother, Onyemenam, JCA in this appeal. I entirely agree and fully support his reasoning and conclusion. There is nothing I can usefully add. I also in the circumstance dismiss the appeal. I affirm the judgment of the Benue State High court in suit No. MHC/44/91 delivered on 2/6/2000. I would also not make any order for costs.

Appearances

F.M.E. Nezan (Mrs.)
O. OYEDOKUN Esq.For Appellant

AND

C.M. Chaha (Mrs.)For Respondent