THE COUNCIL OF FEDERAL POLYTECHNIC, EDE & ORS. v. JOHNSON K. OLOWOOKERE
(2012)LCN/5380(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/I/281/2008
RATIO
LABOUR LAW: HOW CAN AN EMPLOYMENT CONTRACT WITH STATUTORY FLAVOUR BE DETERMINED
To restate the law which is now settled, an employment or appointment which has statutory flavour or backing can only be terminated in the way and manner specified by the relevant statute. See EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162; SHITTA-BEY V. FEDERAL PUBLIC GOMMISSION (1981) 1 SC 41 and BAMGBOYE V. UNIVERSITY OF ILORIN (1990) 10 NWLR (PT.622) 290. PER MOORE A. A. ADUMEIN, J.C.A.
COURT: ATTITUDE OF THE COURT TOWARDS ACADEMIC QUESTIONS
Issue 2 has become academic and courts do not waste precious judicial time on academic questions which will yield no practical benefits to any of the parties. Even if this issue is resolved in favour of the appellants, what practical benefits will they derive from it. Also, if I resolve it in favour of the respondent I do not foresee any practical or additional benefits which will be conferred on him. That a court of law will not engage in an exercise in futility by delving into academic questions, see BHOJWANI V. BHOJWANI (1996) 6 NWLR (PT. 457) 661; (1996) 7 SCNJ and U.B.N. LTD. V. EDIONSERI (1988) 1 NSCC 603. PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. THE COUNCIL OF FEDERAL POLYTECHNIC, EDE
2. THE RECTOR, FEDERAL POLYTECHNIC, EDE
3. THE HON. MINISTER OF EDUCATION Appellant(s)
AND
JOHNSON K. OLOWOOKERE Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent, as plaintiff, took out an action in the Federal High Court, Osogbo Judicial Division, sitting at Osogbo. In paragraph 26 of his amended statement of claim spanning pages 51-55, the respondent claimed thus:
“26. WHEREOF the plaintiff claims as follows:
(a) A declaration that the termination of the plaintiff’s appointment is “ultra vires”, unlawful, wrongful, illegal, unfair, unjust, malicious, unreasonable and/blatant breach of the rules of natural justice and the constitution.
(b) An order re-instating the plaintiff to his due position as a lecturer without any loss of remuneration, promotional benefits and or advantages of any kind whatsoever.”
The 1st and 2nd appellants, as defendants in the court below, filed a further amended statement of defence spanning pages 151 – 155 of the record of appeal in which they asked the court to dismiss the respondent’s claim.
The parties were heard and in a reserved judgment delivered on the 28th day of February, 2008, the learned trial Judge, Saliu Saidu, J. granted the respondent’s prayers. Being dissatisfied, the appellants filed a notice of appeal containing 5 grounds. With leave of court, an amended notice of appeal containing 6 grounds was filed on the 12th day of July, 2011.
Briefs were filed and exchanged. At the hearing of the appeal, Awoniyi Alabi, Esq., learned counsel for the appellants adopted and relied on the appellants’ further amended brief dated 12/07/2011 and filed on the same day and the appellants’ amended reply brief dated 12/12/2011 and filed on the same day. Learned counsel for appellants urged the court to allow the appeal and set aside the judgment of the lower court. On his part, M. O. Agboola, Esq., learned counsel for respondent adopted the further amended respondent’s brief dated 19/09/2011 but filed on 17/10/2011.
The appellants formulated three issues for determination, namely:
(1) Whether the termination of the respondent’s appointment was unlawful and wrongful?
(2) Whether, in view of the evidence before the court, the trial Judge was wrong to have held that this suit stands undefended by the 3rd defendant/appellant.
(This issue derives from grounds II and III of the grounds of appeal)
(3) Whether in the circumstances of this case and on the preponderance of evidence, the trial Judge ought to have awarded judgment to the respondent?
(This issue derives from ground VI of the grounds of appeal).
The respondent framed two issues for determination:-
(1) What is the legal effect of the 3rd defendant’s failure to defend this case at the lower court”? (Grounds II and III of the amended notice of appeal)
(2) Whether the termination of the plaintiff’s appointment was in line with the relevant statutes guarding his terms of employment? (Ground I and IV, V & VI of the amended notice of appeal).
Issue 3 distilled by the appellants can be conveniently accommodated under Issue 1. Therefore, I will determine the appeal on issue 1 and 2 framed by the appellants.
Issue 1
Whether the termination of the respondent’s appointment was unlawful and wrongful.
The learned counsel for the appellants argued that the respondent, not being a confirmed staff was not entitled to the privileges/rights under the Federal Polytechnics Act, 1990 and or the Civil Service Rules. He referred to the evidence of the respondent, under cross-examination, where he admitted that his appointment had not been confirmed and that he accepted all the contents of exhibit JK02 his letter of regularisation of appointment and that “since the plaintiff/respondent’s appointment had not been confirmed as at the time of the institution and trial of this suit the appellants were at liberty to dismiss, terminate, or retire the respondent for good or bad reasons.” Learned counsel relied on the case of NITEL PLC & ANOR. v. M. L. D. AKWA (2006) 2 NWLR (Pt.964) 391 @ 417, Paras. A – D in support of his argument.
The learned counsel for the appellants argued that in this case, the appellant was found guilty of gross misconduct, namely sexual harassment and extortion of money from one female student – Angela Nwosu. He submitted that the lower court was therefore, wrong to rely on Section 12 of the Federal Polytechnics Act, the provisions of guidelines contained in exhibit JK013 and the cases of AFRIBANK (NIG.) PLC v. OSISANYA (2001) 1 NWLR (PT.642) 610 and KABEL METAL NIG. LTD. V, ATIVIE (2002) 10 NWLR (PT.775) 254.
Mr. Alabi submitted that the terms of contract between the appellants and the respondent are contained in exhibit JK02 and that the respondent conceded under cross-examination at page 108 of the record that the relationship between the appellants and him is that of master and servant. He submitted that the respondent’s admission estopped him from arguing that his appointment enjoyed statutory flavor. It was also contended that since the learned trial judge having agreed that exhibit JK02 was applicable, His Lordship should have upheld the termination of the respondent’s appointment. On this point, IFETA v. SHELL PETROLEUM DEVELOPMENT COMPANY LTD. (2006) 8 NWLR (PT. 983) 585 was referred to.
The learned counsel for the appellants argued that since the respondent had accepted the terms contained in exhibit JK02, he had waived the rights accruable to him under section 12 of the Federal Polytechnics Act ABDULRAHEEM V. OLUFEAGBA (2006) 17 NWLR (PT.1008) 280 @ 325.
The learned counsel for the appellants argued that the cases of GARUBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18) 550, IGWILO v. C.B.N. (2000) 1 NWLR (PT.642) 601, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599 and other cases in their category were not applicable to this case because:
“(1) The fact and laws in those cases are different.
(2) The employments in those enjoyed statutory flavor whereas this one does not,
(3) And much more importantly the employees in these cases were confirmed officers whereas the plaintiff/respondent was not.”
The appellants argued that even if the termination of the respondent’s appointment were to be unlawful, the respondent could not be reinstated as the court should not impose an employee on an unwilling employer – AFRIBANK NIG. PLC. V. OSISANYA (supra) and KABEL METAL NIG. LTD. V. ATIVIE (supra). It was argued that the proper order is one directing the payment of respondent’s salaries and entitlements up to the date of the termination of his appointment and salary in lieu of the required notice.
It was contended that the appellants substantially complied with the provisions of the Federal Polytechnics Act and that the respondent’s argument that it was the Academic Board and not the Council of the Polytechnic that referred his case to the Staff Professional Ethics Committee (SPEC) is a matter of undue technicality from which the courts have moved away in favour of substantial justice – C. & C. CONSTRUCTION CO. LTD. V. SAMUEL TUNDE OKHAI (2003) 12 SCNJ 33 @ 47, Paras 1 – 2.
Learned counsel for the appellants finally contended that on the preponderance of evidence, the lower court ought not to have awarded judgment to the respondent – ODOFIN & ORS. VS. MOGAJI & ORS. (1958) 1 L.R.N. 212 cited and relied on.
In his response, M. O. Agboola, Esq., learned counsel for the respondent, referred to paragraphs 5 and 25 of the amended statement of claim and paragraph 16 of the further amended statement of defence and argued that the parties were ad idem at the lower court that the respondent’s employment enjoyed statutory flavour. He submitted that parties are bound by their pleadings and that evidence elicited under cross-examination but not in line with pleadings would go to no issue. Counsel contended that the appellant “failed to point to the court what is the status of the plaintiff/respondent under the relevant statutes, namely the Federal Polytechnics Act 1990 and the Civil Service Rules”.
The respondent contended that his appointment, having been regularized should not be equated with a probationary appointment. He argued that “the issue of probation/regularization is therefore a new issue which is incompetent having not been raised with the leave of this court”.
Referring to Rule 02301 of the Public Service Rules it was argued that a probationary period should not exceed two years “unless an extension is approved by the Federal Civil Service Commission”. The respondent contended that by the time his appointment was terminated, he had served more than the two-year probationary period and he was entitled to confirmation; especially as there was no evidence of extension approved by the Federal Civil Service Commission. On the authority of OBAFEMI AWOLOWO UNIVERSITY V. ONABANJO (1991) 5 NWLR (PT. 199) 549, the respondent contended that he was deemed to have been confirmed after the probationary period had expired.
It was contended that the respondent was not given a fair hearing especially as his accuser was absent at his ‘trial’ before SPEC. This, according to him, was enough to nullify the ‘trial’. In the instant case, the respondent argued that the failure by the 3rd appellant to comply with the provisions of the Federal Polytechnics Act was enough to nullify his termination – P. H. M. B. v. EJITAGHA (2000) 2 SCNQR (Vol.2) 1360 and COUNCIL, FEDPOLY, MUBI v. T. L. M. YUSSUF & ANOR. (1998) 1 SCNJ 11 referred to.
Mr. Agboola argued further that it was wrong for the 1st respondent – Council of the Polytechnic to have delegated its statutory function of disciplining the respondent. He called to his aid the case of BAMGBOYE V. UNIVERSITY OF ILORIN (2001) FWLR (Pt.32) 12 @ 79. It was contended that the panel – SPEC which tried the respondent took over the work of two statutory committees – council of the Polytechnic and the Academic Board thereof.
I have read the arguments of the contending parties and the legal authorities cited by them. The respondent – Mr. Johnson K. Olowookere, was offered a temporary appointment as Lecturer III in the Accountancy Department of The Federal Polytechnic Ede, Osun State vide letter with Ref. No. FPE/R/EA/1.02A dated 8th March, 2001, admitted in evidence as exhibit JK01. After allegedly attending an interview, he was informed vide letter with Reference No.FPE/SS/377/10 dated 10th April, 2001 that his appointment “has been regularized.” The said letter titled “REGULARIZATION OF APPOINTMENT” was admitted in evidence as exhibit JK02.
In the 2002/2003 academic session, the respondent was assigned to teach Auditing I and Auditing II as a substantive lecturer but he was assisted by a part-time lecturer. The respondent and his co-lecturer conducted a mid-term test during which he claimed that a student called Angela Nwosu was found to have committed examination malpractice or fraud and she was subsequently reported to his Head of Department. To be brief, in a wonderful turn of events, the said Angela Nwosu also accused the respondent of extortion of money and sexual harassment.
The conflicting claims were investigated and the said Angela Nwosu was expelled from the Polytechnic. On his part, the respondent was investigated by the Polytechnic’s Staff Professional Ethics Committee (SPEC) which found him guilty and recommended that he be suspended without pay for three months and demoted for one year – see exhibit JK 9, which is undated. By a letter with Ref. No.FPE/SS/377/Vol.1/018 dated 28th July, 2004 the respondent’s appointment was “terminated immediately for gross misconduct”. The respondent accordingly filed an action in the court below.
The appellants claimed that the respondent was dismissed after a petition against him, by one female student called Angela Nwosu, was referred by the Polytechnic Board to the SPEC. The SPEC investigated the allegations against the respondent and found him guilty of extortion of money from the said Angela Nwosu and also sexually harassing her. The respondent was subsequently disciplined by having his appointment terminated.
From the facts and materials before the court, shorn of immaterial and irrelevant matters, as at the 28th day of July, 2004 when the respondent’s appointment was terminated vide exhibit JK 04, he was an academic staff of The Federal Polytechnic, Ede and his appointment was governed by the provisions of Federal Polytechnics Act (No. 33 of 1979), now Cap. F17, Laws of the Federation of Nigeria, 2004. Therefore, the respondent’s appointment as Lecturer in the Department of Accountancy of The Federal Polytechnic, Ede was statutorily spiced. Section 17(1) of the Federal Polytechnic Act has comprehensive and elaborate provisions for the discipline and removal of academic, administrative and technical staff of a polytechnic. Section 17(1) of the Federal Polytechnics Act is hereby fully reproduced with some areas emphasized by me by underlining:
“17 (1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the polytechnic, other than the Rector, should be removed from office on the ground of misconduct or inability to perform the functions of his office, the Council shall
(a) give notice of those reasons to the person in question:
(b) afford him an opportunity of making representation in person on the matter to the Council; and
(c) if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements –
(i) if he is an academic staff, for a joint committee of the Council and the Academic Board to investigate the matter and to report on it to the Council; or
(ii) for a committee of the Council to investigate the matter, where it relates to any other member of the staff of the polytechnic and to report on it to the Council; and
(iii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by instrument in writing signed on the directions of the Council.”
As can be seen from the provisions section 17 of the Federal Polytechnics Act reproduced, where there is any reason to remove any person employed as a member of the academic staff of a Federal polytechnic on the ground of misconduct what should be done can be summarized as follows:
(1) The Council shall give notice of the reasons to the affected academic staff;
(2) The Council shall afford him, the person affected, an opportunity of making representations on the matter; and
(3) If within a period of one month from the date of the notice, the affected academic staff or any three members of the council so request, the Council shall make arrangements for a joint committee of the council and the Academic Board to investigate the matter and to report on it to the Council.
Section 17(1) of the Federal Polytechnics Act, 2004 is in pari materia with section 12(1) of the Federal Polytechnics Act, 1979 (as amended) which was interpreted in THE COUNCIL OF FEDERAL POLYTECHNIC MUBI V. T. L. M. YUSUF & ANOR (1998) 1 NWLR (PT.533) 343, where the Supreme Court held that any procedure for terminating an employee’s appointment outside the scope of that section would be unlawful, null and void. In order words, where there are a statutory procedural requirements specified or stipulated for the termination of employment, the procedural conditions or requirements must be fulfilled, otherwise the termination will be invalid. See OLATUNBOSUN V. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25; OLANIYAN V. UNIVERSITY OF LAGOS (NO.2) (1985) 2 NWLR (PT.9) 599; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162 and PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. E. O. EJITAGHA (2000) 11 NWLR (PT. 677) 154.
The learned counsel for the appellants argued that since the respondent admitted in court that he was a servant of the appellants who were his masters, the respondent’s relationship with the appellants is that of servant and master and the court should not impose a servant on an unwilling master. I agree with the appellants that the respondent was their servant. A careful perusal of exhibit JKA2 heavily relied upon by the appellants as containing the conditions of the respondent’s employment may reveal that whereas the respondent could be dismissed for gross misconduct, the procedure is not specified therein. The appellants, being persons created by a statue, can only exercise their powers within the confines of that statute. The appellants cannot act at or on their whims. The procedure for disciplining an academic staff for misconduct, or gross misconduct as alleged by the appellants, is clearly spelt out in Section 17 of the Federal Polytechnics Act and that procedure must be strictly followed and applied. Where a statute regulating the relationship of a master and servant stipulates a particular method for disciplining a servant, the procedure must be followed by the master. See OBAFEMI AWOLOWO UNIVERSITY V. DR. A. K. ONABANJO (1991) 5 NWLR (PT. 193) 549 and OLANIYAN V. UNIVERSITY OF LAGOS (No.2) (1985) 2 NWLR (PT.9) 599.
It was contended strongly by the appellants that the respondent’s appointment was a probationary appointment which could be terminated at anytime. The respondent’s probationary appointment commenced on the 10th day of April, 2001, the date of appointment letter – exhibit JK02 bearing in mind that he had been on a “temporary” appointment before then. The respondent was to be on probation for a period of two years “before your appointment is confirmed, subject to satisfactory Medical and Confidential reports on you”. His appointment was terminated on the 28th day of July, 2004. The period between 10th April, 2001 and 28th July, 2004 was more than three years. In the eyes of the law, having kept the respondent as an academic staff, using him as a lecturer and paying him his salaries and other benefits for about 12 (twelve) months after the period of probation had lapsed, the appellants had by their conduct confirmed the respondent’s appointment. See the case OBAFEMI AWOLOWO UNIVERSITY v. ONABANJO (supra) @ 570, paras D – E, where this court, per AKPABIO, JCA stated thus:
“The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s Probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppels by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats Equity”.
In the present case, the appellants’ letter dated 30th March, 2004 addressed to the respondent and titled “INVITATION FOR CHAT” and admitted as exhibit JK011 did not by its contents or character qualify as the notice specified in section 17(1) (a) of the Federal Polytechnics Act. For the sake of completeness and emphasis, exhibit JK011 is hereby fully reproduced:
30th March, 2004
Mr. J. K. Olowookere,
ufs: Head,
Accountancy Department
Federal Polytechnic,
Ede.
INVITATION FOR A CHAT
I write at the instance of the Chairman Staff Professional Ethics Committee to invite you for a chat as scheduled below:
Date: Thursday 1st Appeal, 2004
Time: 10.00 a.m.
Venue: Librarian’s Office
Please attend punctually.
(sgd)
M. O. Adefisoye
Secretary”
Exhibit JK011 was not given by the Council or even on the authority or directive of the Council and no reasons for the “chat” were specified therein contrary to the clear and unambiguous provision of Section 17 (1)(a) of the Federal Polytechnics Act. The appellants treated the matter of disciplining the respondent with reckless levity and instead of giving the respondent the notice as required by section 17(1)(a) of the Federal Polytechnics Act, they invited him for a chat – a friendly informal talk and used it as the foundation for terminating his appointment.
The complaint against the respondent was referred by the appellants’ Academic Board to the Staff Professional Ethics Committee for investigation. The Staff Professional Ethics Committee that purportedly investigated the respondent is definitely not “a joint committee of the Council and the Academic Board” and it was not set up at the request of the respondent or three members of the Council as required by Section 17(1)(i) of the Federal Polytechnics Act. Worse of it, the respondent was not given an opportunity to confront his accuser – Angela Nwosu personally. The appellants did not only fail to comply with the procedure specified by statute for the discipline and removal of the respondent, they also breached his right to fair hearing by denying him the opportunity of confronting his accuser Angela Nwosu in person before the investigating committee. In other words, his accuser gave evidence to the committee behind him. The Staff Professional Ethics Committee which ‘tried’ the respondent ought to have observed the principles of natural justice by giving the respondent a fair hearing before proceeding to recommend disciplinary measures against him. See LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL VS. FAWEHINMI (1985) 2 NWLR (PT.7) 300.
To restate the law which is now settled, an employment or appointment which has statutory flavour or backing can only be terminated in the way and manner specified by the relevant statute. See EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162; SHITTA-BEY V. FEDERAL PUBLIC GOMMISSION (1981) 1 SC 41 and BAMGBOYE V. UNIVERSITY OF ILORIN (1990) 10 NWLR (PT.622) 290.
The appellants brazenly breached the provisions of section 17(1) of the Federal Polytechnics Act and the respondent’s right to fair hearing and their decision purporting to terminate the respondent’s appointment as Lecturer was rightly nullified and set aside by the trial court. Here, one is not concerned with the gravity of the respondent’s misconduct complained of or the evidence available in that respect. It was the failure by the appellants to fully comply with the statutory procedure for terminating the respondent’s appointment which has statutory backing or flavour that is the real issue here. No matter how black or grave the allegations against an employee whose employment is statutorily spiced, the employer must adhere to full compliance with the procedure provided by the statute.
This issue is hereby resolved in favour of the respondent.
Issue 2
The appellants’ argument on this issue is from pages 18 to 23 of their further amended brief. The kernel of the appellants’ argument is that it was wrong of the trial court to have held the suit was undefended by the 3rd appellant. The appellants contended, relying on the case of KUMAGA DAUDA & ANOR V. KAVE IBA (2007) 2 NWLR (PT.1018) 321, that failure of a party to testify is not necessarily detrimental to him or his case.
The response of the respondent on this issue is from paragraphs 02.3 to 03.3 of his further amended brief. The respondent contended that a party must back up his pleadings with evidence in court as pleadings do not constitute evidence. Reliance was placed on MAGNUSON V. KOIKI (1993) 12 SCNJ 114 and BALA V. BANKOLE (1986) 3 (PT.27) 141. He argued that in the absence of a statement of defence, the burden of proof on a plaintiff is minimal on the authority of OKEBOR V. POLICE COUNCIL (1998) 9 NWLR (PT. 566) 534.
I held under Issue 1 that the court is not concerned with the merits or demerits of the allegations of gross misconduct levelled against the respondent by the appellants. No matter the gravity or seriousness of the offences with the respondent was accused, the failure to fully comply with the statutory procedure for terminating the respondent’s appointment, backed with statutory flavour, the process was fundamentally flawed and the termination of the appointment null and void ab initio.
Issue 2 has become academic and courts do not waste precious judicial time on academic questions which will yield no practical benefits to any of the parties. Even if this issue is resolved in favour of the appellants, what practical benefits will they derive from it. Also, if I resolve it in favour of the respondent I do not foresee any practical or additional benefits which will be conferred on him. That a court of law will not engage in an exercise in futility by delving into academic questions, see BHOJWANI V. BHOJWANI (1996) 6 NWLR (PT. 457) 661; (1996) 7 SCNJ and U.B.N. LTD. V. EDIONSERI (1988) 1 NSCC 603.
In case I am wrong in holding that issue 2 is not a live issue but an academic question, I will proceed to determine same on its merits. At page 178 of the record, the learned trial Judge observed thus:
“As far as the 3rd defendant is concerned, this case stand undefended. He was served but failed to appear, nor filed defence or called evidence.”
The observation of the learned trial Judge reproduced above is supported by the record of appeal. Mr. Awoniyi Alabi, learned counsel for the appellants represented only the 1st and 2nd appellants in the lower court. His further amended statement of defence, spanning pages 151-155 of the record was filed on behalf of the 1st and 2nd appellants only. There is no record showing that the 3rd appellant filed any statement of defence in the court below. There is also no evidence that he led any evidence there.
I have carefully examined the judgment of the lower court and it is clear to me that the learned trial Judge did not base his decision to grant the respondent’s prayers on the failure by the 3rd appellant to file a statement of defence and or lead evidence.
Issue 2 is hereby resolved against the appellants.
Finally, I hold that this appeal lacks merit and it is hereby dismissed. The judgment of the lower court delivered in Suit No: FHC/OS/CS/29/2004 is hereby affirmed.
There is no order for costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Moore A. A. Adumein, JCA just delivered. For the reasons exhaustively advanced therein, which I adopt as mine, I also find the appeal to be lacking in merit. I dismiss it accordingly and affirm the judgment of the Federal High Court, Osogbo Judicial Division in Suit No. FHC/OS/29/2004 delivered on 28/2/2008. I abide by the order on costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, Moore A. A. Adumein JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. Where a contract of employment is regulated by statute, it does not cease from being so regulated simply because the employee stated under cross-examination that he is a servant of the defendant and that they are his master. Irrespective of the gravity of the offence committed by the employee, where such employment is wrongfully terminated, the termination is null, void and of no effect. The employee will be entitled to be reinstated to his job. See Iderima v. Rivers State Civil Service Commission (2005) 16 NWLR (Pt.951) 378 or (2005) 7 S.C. (Pt.111) 135. The lower court was right in reinstating the respondent to his job, the appellants having failed to comply with the Federal Polytechnics Act in terminating his employment. I too hold that the appeal lacks merit and should be dismissed. It is hereby dismissed. The judgment of the lower court is affirmed. I abide by the order as to cost in the lead judgment.
Appearances
Awoniyi Alabi, Esq.For Appellant
AND
M. O. Agboola, Esq.For Respondent
