UBA PLC v. EKWE
(2021)LCN/15691(CA)
In the Court of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/E/495/2017
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
GOLDIERMIER N. EKWE RESPONDENT(S)
RATIO
THE PRINCIPLES GOVERNING EMPLOYMENTS IN A SIMPLE MASTER- SERVANT RELATIONSHIP
The circumstances of this case appear not to fit into the traditional principles governing employments in a simple master – servant relationship, which allows the employer the unrestrained right/power to hire and fire his servant, at will, provided it complies with the requirement of due notice to terminate the employment, or pays the stipulated salaries, in lieu of notice. That was the principle in the case of Ifeta Vs SPDC Nig. Ltd (2006) 8 NWLR (Pt.983) 585, which Appellant relied on heavily to the effect that termination of employment can be done orally or in writing or even by conduct, where the employer no longer wants the employee in his service, and that even where the termination or dismissal of the employee occurs, the employee is only entitled to what would have been due to him, if the termination was duly done, that is, requisite notice of termination or salary in lieu of same, as damages; he said that the Court cannot force a servant on an employer in a simple employment of maser and servant, which has no statutory flavor. That has always been the law. See the case of Kwara State Polytechnic, Ilorin Vs Shittu (2012) LPELR – 9843 CA; Garuba Vs KIC Ltd & Ors (2005) LPELR – 1310 (SC); Oak Pensions Ltd & Ors Vs Olayinka (2017) LPELR – 43207 CA; Ajuzie Vs FBN Plc (2016) LPELR – 40459; Eze Vs Spring Bank Plc (2011) LPLER – 2892 (SC) and Olaniyan Vs UNILAG (1985) 2 NWLR (Pt.9) 559.
In the case of Agbarakwe Vs University Press Plc (2015) LPELR – 25613 (CA), it was held:
“The authorities are replete, that an employer has the power to hire and fire any of its staff/workers, at anytime, for any reason, or for no reason at all, and does not owe him any explanation or apology, provided it keeps to the terms of the agreement governing their relationship of master/servant in the termination. See Garuba Vs Kwara Investment Ltd(2005) MJSC 58; Iwuchukwu Vs Nwizu (1994) 7 NWLR (Pt.357) 379… The general principles in master/servant relationship is a master who no longer savours the services of his servant can call it quit at any time and does not even owe the servant any explanation or reason to dispense with this (servant’s) services, provided he (master) respects the agreed terms of the contract of employment which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected.. The simple truth is that, even where the master is mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (the Court) can do in the situation that the services of the servant is no longer required by the master, as the Court cannot impose or force a servant (however willing) on an unwilling master. See the case of Katto Vs CBN (1999) 5 SCNJ 1; Idoniboye-Obu Vs NNPC (2003) 1 SCNJ 87.” PER MBABA, J.C.A.
WHETHER OR NOT AN UNSIGNED DOCUMENT HAS PROBATIVE VALUE
Of course, by law, a document which does not carry the signature of the maker/writer, is of no probative value and is worthless. The authorities on this are replete. See the case of Brewtech (Nig) Ltd Vs Akinnawo & Anor (2016) LPELR – 40094 CA; Gov. of Lagos State & Ors Vs Ohaigo Nig Ltd & Anor (2018) LPELR – 45552 (CA); and Enebong & Anor Vs Edem & Ors (2016) LPELR – 41190 (CA), where my Lord Oyewole JCA ruled:
“An unsigned document is totally worthless and incapable of conferring any legal rights.”
See also Maku Vs Al-Makura & Ors (2016) LPELR – 48123 SC, where the apex Court held:
“The fact is settled, that unsigned document is worthless and does not have legal status.” Ogunbiyi JSC.
I do not think Appellant can found on the case of Ifeta Vs SPDC (Nig) Ltd (2006) 8 NWLR (Pt.983) 585, which it placed heavy reliance on to say that termination of appointment need not be written; that it can be oral or even by conduct. Of course that cannot be, where the employer fails to communicates any valid notice of withdrawal of service to the employee, as in this case. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Enugu State High Court in Suit No. E/23/2009, delivered on 23/5/2011 by Hon. Justice E.N Oluedo, wherein her Lordship gave judgment to the plaintiff (now Respondent) granting the relief she sought.
At the lower Court, the Respondent (as plaintiff) had sought the following reliefs:
(1) “A declaration that the Plaintiff is still and remains an employee of the Defendant.
(2) A declaration that the unsigned letter dated 3rd August, 2006, purporting to dismiss the Plaintiff from the employ of the defendant is null and void and of no effect.
(3) An Order directing the defendant to forthwith, pay the Plaintiff her accrued salaries and entitlement from 3rd August, 2006 till the date of judgment.
(4) An Order of injunction restraining the defendant, its servants, agents and/or privies, from restraining the Plaintiff in any way or manner from carrying out her duties as contained in her appointment letter.”
The Appellant (as Defendant) had filed its defence to contest the claim of the Plaintiff. After hearing the case and considering the evidence adduced and addresses of Counsel, the trial Court ruled for the Plaintiff (Respondent) as follows, on 23/5/2011:
“It is therefore my belief that the plaintiff in the instant suit, by the totality of her evidence, that were never challenged by the defendant, but rather admitted by the defendant and on the authority of the above decisions, have succeeded in providing her case, and therefore is, entitled to the declarations sought in her claim. The defendants purported termination of the Plaintiffs employment through an unsigned letter is of no effect and therefore is held to be null and void by this Court. In consequence, therefore, I hold that the Plaintiff is entitled to her salaries and entitlements from August 26, till date, as well as the reliefs she is asking from this Court. Judgment is therefore entered in favour of Plaintiff, as per paragraph 22 (a) – (d) of her amended statement of claim, i.e.:
(1) That the Plaintiff is still and remains an employee of the defendant.
(2) That the unsigned letter dated 3rd August, 2006, purporting to dismiss the plaintiff from the employ of the defendant is null and void and of no effect.
(3) The defendant is ordered, forthwith, to pay the plaintiff her accrued salaries and entitlements: N2,244,000.00 (Two Million Two Hundred and Forty Four Thousand Naira), from 3rd August, 2006; N5M (Five Million Naira) for the year 2007; and N6M (Six Million Naira) yearly from the year 2008, until the date of compliance with the judgment of this Court.
(4) I grant an Order of injunction restraining the defendants, its servants, agents and/or privies from restraining in any way or manner from carrying out her duties as contained in her appointment letter.” See pages 213 to 214 of the Records of Appeal.
Dissatisfied with the judgment, Appellant filed this appeal on 26/2/2015, as per pages 217 to 219 of the Records of Appeal. Appellant was allowed extension of time by this Court on 10/2/2015 to file the said Appeal. See pages 215 to 216 of the Records of Appeal, wherein it was granted 30 days to file the process and it did, on the said 26/2/2015.
Appellant filed its Brief of Argument on 31/8/2017, which was deemed duly filed on 11/6/2020. In it, Appellant distilled 3 (three) issues for the determination of the Appeal, as follows:
(1) Did the lower Court have jurisdiction and competence to try the suit and deliver judgment on 23/5/2011, when the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, effective 4/3/2011, conferred exclusive jurisdiction on the National Industrial Court in labour employment and other matters (Ground 1).
(2) Whether the trial judge was right in holding that the respondent “is still and remains an employee” of the appellant, after the latter delivered an unsigned dismissal letter dated 3/8/2006 to the respondent on 3/8/2006, and thereafter, prevented the respondent from continuing to work for the appellant in the absence of any statutory provisions governing the respondent’s employment. (Ground 2).
(3) Whether the lower Court erred in law, when it ordered the appellant to pay to the respondent her “accrued salaries and entitlements from 3/8/2006 till date of judgment”. (Ground 3 and 4).
The Respondent filed her Brief of Argument on 27/10/2020, which was deemed duly filed on 2/11/2020. She adopted the Issues as distilled by Appellant, for the determination of the Appeal. The Appellant filed a Reply Brief on 12/11/2020.
Arguing the Appeal on 26/1/2021, learned Counsel for Appellant, Dr. A.J.C. Mogbana, with him E.O. Dania (Miss) on Issue 1, said the trial Court had no jurisdiction to hear and determine the case, upon the coming into effect, on 4/3/2011, of the (3rd Alteration) Act, 2010, which amended the Constitution of Nigeria, vesting exclusive powers on the National Industrial Court of Nigeria to hear and determine cases and matters over labour, employment and other matters.
He relied on the case of Madukolu Vs Nkemdilim (1962) 2 NSCC 375, on what constitutes jurisdiction and when a Court is seised with competence to hear a suit. He also relied on NNPC Vs Orhiowasele (2017) 8 WRN 26, to say that:
“The law that was in force or existing at the time the cause of action arose is the law applicable for determining the case; that this law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say that the law in force at the time cause of action arose, governs determination of the suit, while the law in force at the time of trial based on cause of action, determines the Court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on 17/11/93. A litigant who had cause of action in 1990, would have his case governed by the law at the time (i.e 1990); if trial commenced before 1995 (sic) the Court to try the case would be the State High Court, but if after 17/11/93, the case would be tried by the Federal High Court.” Per Rhodes-Vivour, JSC.
Counsel said the dicta of Rhodes-Vivour, JSC, in the case of NNPC Vs Orhiowasele Supra, Pages 42-43 further illuminates the issue of jurisdiction, which this Court is called upon to determine in this case. Counsel, said that His Lordship Rhodes-Vivour JSC further said;
“In Obiuweubi Vs CBN Supra, I examined several cases decided by the Court, to mention a few. See OHMB Vs Garba (2003) 7 SC (Pt. 11) 138, Olutola Vs Unilorin (2005) 3 WRN 22; (2004) NWLR (Pt.905) 416, Osakue Vs FCE (2010) 30 WRN 43; (2010) 2-3 SC (Pt.11) 158 and held that:
“For the State High Court to have jurisdiction under Decree 107 of 1993, the cause of action must arise before 17/11/93 and the trial must also be in progress before the said date. That is to say, all part heard cases in the State High Court before 17/11/93 can continue after 17/11/93 in the State High Court, because Decree 107 of 1993 does not have retrospective operation, and in view of Section 6 (1) of the Interpretation Act, Cap 192, Laws of Federation of Nigeria 1990.”
In further examination of these cases, I found that in Osakue Vs FCE Supra & Olutola Vs Unilorin Supra,“The trial commenced for the 1st time in 1994, i.e after 17/11/93 when Decree 107 of 1993 came into force. The Federal High Court had exclusive jurisdiction at 17/11/93…”
Counsel said that applying the above principle to this case at hand, that the trial commenced on 28/10/2010, at the State High Court (page 126 of the Records), before the (Third Alteration) Act, 2010 was enacted, which conferred exclusive jurisdiction on the National Industrial Court in labour, employment and other matters, with effect from 4/3/2011, when the Act became operative. Counsel conceded that ordinarily, the State High Court should have jurisdiction on the date the judgment was delivered on 23/5/2011, after the Act came into effect on 4/3/2011. However, Counsel said that since the Act of 2010 became part of the grundnorm (Constitution) of the laws of Nigeria, it should rank in priority over all other laws. He submitted that with effect from 4/3/2011, the jurisdiction of the State High Court ceased and thereafter that Court should have terminated proceedings and struck out the case as decided in Alawiye Vs Ogunsanya (2013) 28 WRN 29 at 68.
Accordingly, Counsel said the judgment of the trial Court delivered on 23/5/2011 was without jurisdiction.
On Issue 2, whether the trial judge was right in holding that the respondent “is still and remains an employee” of the appellant, after the latter delivered an unsigned dismissal letter, dated 3/8/2006, to the respondent and stopped her from continuing to work for appellant, in the absence of any statutory provisions governing the employment, Counsel answered in the negative. He argued that dismissal of an employee by employer may be written, oral or even by conduct/action. He relied on Ifeta VS SPDC Nig Ltd (2006) 8 NWLR (Pt. 983) 585, where the contract of employment provided that the employee could be terminated by 3 months notice in writing or salary in lieu of notice; that the employee was informed orally of the termination of his appointment, while still under suspension, on allegation of stealing; that it was held that the employee was entitled to only three months’ salary as damages for failure to be given notice. Counsel relied on dicta of my Lord Onnoghen JSC (as he then was later CJN) said:
“It is clear that the termination of the appointment of the appellant in all circumstances of this case is wrongful as found by the Court of Appeal and I agree with that finding. To me, it does not matter whether appellant was given notice in writing or oral (notice is notice); what is important is whether the respondent had demonstrated clearly, by action, that the services of the Appellant are no longer required by the respondent. This fact is very clear from the evidence in that respondent returned the identity card of the appellant without which appellant can neither enter the premises of the respondent nor work for it, his salaries and other entitlement were stopped after being told that his appointment had been terminated, etc, and appellant started looking for an alternative job…”
I hold the view that notice is notice whether in writing or oral, provided both parties are not misled as to what is going on. In the instant case, appellant knew and in fact accepted the fact that his appointment with the respondent was terminated on 17/5/91 whether orally or in writing.”
Counsel said that the Court has always followed two principles in reviewing any case of challenge of validity of employment, namely:
(a) Whether the appointment was terminated in accordance with the terms of the contract of employment and if the answer is in the affirmation that is the end of the case; but if the answer is in the negative;
(b) What is the measure of damages for the wrongful termination of the appointment? See Ifeta Vs SPDC Nig. Ltd Supra; Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599.
Counsel said that the Courts have always said that in a contract of service, the master has the right to hire and fire; that the remedy available in wrongful termination, is not general damages, but what accrues in the event of failure to give due notice of termination, being the salary, in lieu of notice, except in a contract with statutory flavour, where reinstatement can be ordered, with accumulated arrears of salary/entitlements. He relied on Olaniyan Vs University of Lagos (Supra); Shitta – Bay Vs Federal Public Service Commission (1981) 1 SC 40; Ewarami Vs African Continental Bank Ltd (1978) 4 SC 99.
Counsel also relied on the case of Ilodibia Vs Nigeria Cement Company Ltd (1997) 7 WRN (Pt.53) 1318; Olarewaju Vs Afribank (2001) 7 NSCQR 22 at 32; Union Bank Of Nigeria Plc Vs Ogboh (1995) 2 SCNJ 1 at 16, to say that, where a master has purportedly dismissed the servant, even though not in accordance with laid down procedure in the contract, the servant cannot treat the contract as still subsisting, but proceed to the basis of wrongful dismissal.
Counsel said that the dismissal of Respondent was lawful; that respondent was not in doubt that her services were no longer required by Appellant as from 3/8/2006, when she was no longer allowed to continue to work for Appellant. Counsel added that the offence for which respondent was found guilty was punishable by dismissal, under her terms of contract; that as a general rule, an employee may be dismissed, summarily, without notice and without wages, if he is guilty of gross misconduct, as in this case. He relied on Eze Vs Spring Bank Plc (2012) 20 WRN 1; Ajayi Vs Texaco (1987) 3 NWLR (Pt.62) 577.
He added that the relationship of the Appellant and the Respondent was a simple contract of master and servant in which the master had the right to terminate the employment at any time, and in accordance with the terms of the contract of employment.
On Issue 3, whether the Court was right to Order the payment of accrued salaries and entitlements to the Respondents, from 3/8/2006 till date of judgment, Counsel answered in the negative. Counsel asserted that Respondent was lawfully dismissed, even though the letter of dismissal was unsigned and defective; that the denial of respondent of access to the office left her in no doubt that her services were no longer required by Appellant. Counsel re-enforced the arguments on Issue 2, that being a simple employment contract of master servant relationship, without statutory flavour, the Respondent cannot be imposed on the Appellant by the Court; he said that even if the employment has been wrongly terminated, the law is that the Court cannot make a declaration that the contract subsists; that her remedy lies in claims for damages, as clearly elucidated in the case of Ifeta Vs SPDC Nig Ltd (Supra).
Counsel urged us to resolve the Issues for Appellant and to allow the Appeal.
Responding, learned Counsel for Respondent, Ifeanyi Okumah, Esq., who settled the brief for Respondent, answered Issue 1 in the affirmative. He said that the trial Court had jurisdiction and competence to try this suit and to deliver judgment as it did on 23/5/2011, notwithstanding the provision of Section 6 (6) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which conferred exclusive jurisdiction on the National Industrial Court over labour and employment matter. Counsel said that the law relied upon by Appellant, that the trial Court did not have jurisdiction, was Section 6 (6) (1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. He reproduced that law, and the case of NNPC Vs Orhiowasele (Supra) etc, and said that Appellant had misconceived the law and misapplied the case cited. He relied on the case of Alawiye Vs Ogunsanya (2013) 28 WRN 29 at 68, and said that it is instructive to note that this authority deals with what a Court can do, where it lacks jurisdiction; that the said case has nothing to do with the Third Alteration Act, 2010.
He said that the submission of Counsel for Appellant on the import of Section 6(6) (1) of the Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010 was a misconception of the current position of the law; he said that the 3rd Alteration Act, 2010 does not have retrospective effect; that where a Court has properly assumed jurisdiction over a matter, before the coming into effect of the 3rd Alteration Act, 2010, the Act does not bend backwards to strip such a Court of jurisdiction. He relied on that case of B.B Apugo & Sons Ltd Vs Orthopaedic Hospital Management Board (2016) 13 NWLR (Pt.1529) 206 at 246, where the Supreme Court said:
“… this Court has held in a plethora of cases that the vested right of a party in existence at the time a new law is passed, transferring jurisdiction of a Court to another, will not be lost, where proceedings in the case were on-going, before the commencement of the law.
This is because, there is a general presumption against retrospective legislation. The Courts guard their jurisdiction, jealously, and lean against giving statute retrospective application terms… The suit in this case was filed on 5th July 1988. Proceedings in terms of exchange of pleadings and hearings of various applications had begun, before 17/11/1993, when Decree 107 of 1993 came into effect. Not being of retrospective effect, it did not oust the jurisdiction of the Court to entertain the suit.” Per Kekere Ekun JSC
Counsel also relied on Omokolo & Ors Vs Revenue Mobilization Allocation & Fiscal Commission & Ors (2017) LPELR 44034 (CA), where, my Lord, Ekanem JCA held on the jurisdiction of a High Court to continue to entertain a matter pending before him, prior to the Third Alteration Act, 2010, as follows:
“It is on account of the above, that I am of the view that the lower Court’s jurisdiction was not ousted by the Constitution of the Federal Republic of Nigeria 1999, (Third Alteration) Act, as it does not have a retrospective effect and the vested right of the parties to the hearing and determination of the matter by the lower Court was not taken away by it.”
In this case at hand, Counsel said the statement of claim was filed on 27/1/2009; the defence was filed on 7/4/2009; the hearing commenced on 15/11/2010 and judgment delivered on 23/5/2011, whereas the 3rd Alteration Act came into effect on 4/3/2011. Thus, the case was save in the trial Court, and the Court seised of jurisdiction to hear and deliver the judgment.
Counsel added that, before the Third Alteration Act, 2010 came to effect on 4/3/2011; The National Industrial Court Act 2008, Section 11 (1) (2) had already made provisions to the effect that:
“(2) Nothing in Sub-Section (1) of this Section shall affect the jurisdiction and powers of the Federal High Court the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are part-heard before the commencement of this Act, and proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate”
On Issue 2, Counsel answered in the affirmative, considering the effect of the unsigned letter purporting to dismiss the Respondent, which the trial Court was called upon to determine. He said that Appellant did not express its intention clearly and unequivocally, in the circumstance; he said that the right of employer to hire and fire was not in issue, but whether the intention had been clearly and unequivocally communicated to Respondent. He argued that an unclear and unequivocal notice of intention for termination of contract of employment leaves the recipient in the cloud and violates the terms of contract. He relied on the position of my lord Onnoghen JSC (Latter CJN) in Ifeta Vs SPDC Nig. Ltd. (Supra), where he said:
“… What is important is whether the respondent had demonstrated clearly, by action, that the services of the Appellant are no longer required by the Respondent.”
Counsel submitted that the quantum of notice, to bring a contract of employment to an end, is not only one that will leave a reasonably intelligent recipient in no doubt that his or her service is no more wanted, but that it is an act of the employer, and as such, binds the employer, in case of eventuality; he said that Exhibit B (unsigned dismissal letter) did not qualify as one.
Counsel relied on the Webster Comprehensive Dictionary, 2013 edition, on the definition of ‘Notice’, as a formal written or printed notification, instruction or warning, as termination or intended termination of agreement. He said that for an action to constitute notice, it must have exhibited sufficient character to show it binds the person who should be notifying, that it must conform to the known ways of issuing the notice, whether in writing or oral or by conduct; that the information in the notice must not be evasive or unclear. Counsel relied on the Section 6.5 of Exhibit G (page 183 of the Records of Appeal), which carried the Bank document on Discipline & Employee Communication – Code of Professional Conduct and Ethics, to the effect that:
“Employee Communication: Human Capital Management Helpdesk shall be responsible for dissemination of notices and circulars to all employees.”
Counsel noted that Appellant did not defend the suit at the trail Court, and did not give any evidence, whatsoever, as the pleading Appellant filed had been abandoned; that by so doing, Appellant (as defendant) had admitted all the claims of the plaintiff at the trial. Counsel said that the Respondent had pleaded the Exhibit G – Appellant’s Employment Handbook, that “the terms and conditions of employment of the Plaintiff is contained in the defendants Employee Handbook and the disciplinary measures governed by the Disciplinary Process and Sections Grid of the Defendant.” (See paragraph 4 of the statement of claim).
Counsel referred us to paragraphs 5 and 6 of her statement of claim, where Respondent pleaded that she was handed an unsigned document (Exhibit, B) on 3/8/2006, purporting to dismiss her from the services of Appellant. She has still not been given a signed copy of the letter; that she wrote Exhibit C on 6/6/2008 to Appellant, requesting the Appellant to make clear to her if she was sacked; that rather than clarify its position, Appellant wrote Exhibit D (dated 27/6/2008) requesting the Respondent to exercise patience and suspend action, while it looked into the issue raised and it promised to get back to Respondent; that when nothing was done by the Appellant, the Respondent wrote the Exhibit E, dated 25/9/2008, indicating intention to sue, as Appellant still failed to get back to Respondent. See pages 140-144 of the Records carrying Respondent’s Solicitors letters an Appellant Reply dated 27/6/2008.
Counsel said the above position was never contradicted by the Appellant. He argued that, by law, an unsigned document is worthless and void. He relied on Brewtech (Nig) Ltd Vs Akinnawo & Anor (2016) LPELR – 40094 (CA); thus the unsigned letter had no binding effect on the Appellant, nor on the Respondent. He also argued that the refusal of some persons to allow the respondent to continue her work cannot amount to notice of termination or termination of her contract with the Appellant, noting that not the act of all persons in the service of the company can bind the company. He relied on the case of Rainson Industries Ltd Vs Abia State Commissioner For Health And Social Welfare And Ors (2014) LPELR – 23771 (CA) where it was held that it is not the act of every servant of a company that binds the company.
Counsel said even if Respondent had deeply feared she was dismissed, it would still not amount to same (dismissal or termination of her appointment), when there was no signed notice to that effect by appropriate authority. Counsel said that to further demonstrate the uncertainty in the action of Appellant, it wrote the Exhibit D on 27/6/2008; Counsel said that a careful perusal of the Exhibit D would show clearly that the Respondents employment had not been terminated.
Counsel added that the case of Ifeta Vs SPDC Nig. Ltd. (Supra) which Appellants relied on heavily was misconstrued in this case, as the main issue in this case had to do with the unsigned notice of dismissal, not on termination of employment per se; he said that the trial Court held rightly, following the case of Jinadu Vs Esurombi (2009) 9 NWLR (Pt. 1145) 55 that a document which does not bear the signature of the maker should attract little or no weight, though it may be admissible in evidence; that where a document contains nothing to show that it was executed and/or signed, it must retain its status as a worthless document, and no Court should attach probative value to it. He relied on Faro Bottling Co. Ltd Vs Osuji (2002) 1 NWLR (Pt. 728) 3111 at 320-331. Counsel also relied on the case of Ewerem Vs Acb Ltd (1978) 4SC.99, where the Supreme Court refused to recognize termination of contract employment, as the notice was not received by the employee; that the Court held that the employee was still in the service of the employer.
On Issue 3, whether the Court was wrong to order Appellant to pay the accrued salaries and entitlement to the Respondent, Counsel answered in the negative. Counsel said that Appellant who did not adduce any evidence at the trial, cannot, on appeal, question the statutory or legal flavour of the employment of the Respondent.
Counsel relied on the case of CBN Vs Igwillo (2007) 14 NWLR (Pt.1054) 393 at 406, Per Akintan JSC, where the Supreme Court stated that categories of contract of employment as follows;
“There are roughly three categories of contract of employment; those purely of master servant; those where a servant holds an office at the pleasure of the employer and those where the employer and those where the employment is governed and regulated by statute, often having statutory flavour. ” On contracts with statutory flavor, the Court stated:
“Employment has a statutory flavour when the employment is protected by statute or regulations governing the procedure for employment and discipline of an employee.”
Counsel argued that the employment of Respondent was governed and regulated by Agreement (Exhibit G) which spelt out the mode of discipline of employees; that Appellant did not comply with its own regulations and did not defend the suit at the trial. He urged us to affirm the decision of the trial Court; that the effect of failure to defend the suit amounted to admission of the Respondent’s claim. He referred us to the case of Monkom & Ors Vs Odili (2010) ALL FWLR (Pt. 256) 542 at 545: University of Calabar Vs Ephraim (1993) 1 NWLR (Pt. 271) 551.
Counsel also referred us to paragraph 20 of the Amended Statement of Claim and her statement on oath, where she (Respondent) stated her annual salary as N2,244,000, as at August 2006, and that by 2007, the salaries and entitlements of her contemporaries were increased to approximately N5Million and to around N6 Million in 2008; that there was no denial of these facts as Appellant did not defend the suit.
Counsel urged us to resolve the issues against Appellant and to dismiss the Appeal.
RESOLUTION OF ISSUES
I think the 3 Issues donated by Appellant (and adopted by the Respondent) are apt for the determination of this Appeal. I therefore adopt them, and shall take the Issues 2 and 3, together, after taking the Issue 1, first.
Did the coming into effect of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) Act of 2010, on 4/3/2011, ousts the jurisdiction of the trial High Court (which heard the case) from delivering its judgment on 23/5/2011?
I think Appellant’s argument on this point was self-defeating. Appellant had relied on the case of NNPC Vs Orhiowasele (2017) 8 WRN 26 at 40, per the holding of Rhodes-Vivour JSC, to say:
“For the State High Court to have jurisdiction under Decree 107 of 1993, the cause of action must arise before 17/11/93 and the trial must also be in progress before the said date. That is to say, all part heard cases in the State High Court before 17/11/93 can continue after 17/11/93 in the State High Court, because Decree 107 of 1993 does not have retrospective operation, and in view of Section 6 (1) of the Interpretation Act, Cap 192, Laws of Federation of Nigeria 1990.”
In further examination of these cases, I found that in Osakue Vs FCE Supra & Olutola Vs Unilorin Supra “The trial commenced for the 1st time in 1994, i.e. after 17/11/93 when Decree 107 of 1993 came into force. The Federal High Court had exclusive jurisdiction at 17/11/93…”
Appellant’s Counsel said:
“Applying the above principle to this case in hand, trial commenced on 28/10/2010 at the State High Court (P.126 of Records) before the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, was enacted which conferred exclusive jurisdiction on the National Industrial Court in labour, employment and other matters with effect from 4/3/2011 when the Act became operative.
Ordinarily, the State High Court should have jurisdiction on the date the judgment was delivered on 23/5/2011 after the Act came into effect on 4/3/2011…”
That was the correct position of the law by the Appellant’s Counsel, before he decided to meander into what looks like conflicting soliloquies.
There are many decided authorities on the position of the law, that the jurisdiction of the State High Court or Federal High Court or High Court of the Federal Capital Territory, was saved when handling part heard matters on labour and employment, prior to the coming into effect of the Third Alteration Act, 2010 on 4/3/2011, which Act vested exclusive jurisdiction in labour and employment matters, on National Industrial Court of Nigeria. See the case of Omokolo & Ors Vs Revenue Mobilization, Allocation And Fiscal Commission & Ors (2017) LPELR 44034 (CA), where my Lord, Ekanem JCA, upheld the jurisdiction of High Court of the State to continue to entertain a matter, pending before it, prior to the Third Alteration Act, as the said Act did not have retrospective effect and could not have had.
See also the case of University of Port HarCourt Teaching Hospital & Ors Vs Onyema (2019) LPELR – 46449 CA, where it was held:
“This legislation (3rd Alteration Act) came into force on 4th March, 2011.
The judgment of the Federal High Court in this suit was delivered on 4th July, 2011. Learned counsel for the Appellant is contending that, in view of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which comes into effect on 4th March, 2011, the judgment delivered by the trial Court on 4th July, 2011, was without jurisdiction and should be nullified by this Court. As rightly submitted by learned Counsel to the Respondent, the submission by learned Counsel to the appellant is a misconception of the position of the law, mainly because the said Third Alteration Act does not have retrospective effect. Since this Suit was filed on 10th April, 2002, before coming into effect of the Third Alteration Act on 4th March, 2011, the said legislation has no binding effect on this Suit…”
Of course, the reasoning of my Lord Kekere-Ekun JSC in the case of B.B. Apugo & Sons Ltd Vs Orthopaedic Hospital Management Board (2016) 13 NWLR (Pt.1529) 206 at 246, has provided the basis for the application of that principle of law, when she said:
“… this Court has held in a plethora of cases that the vested right of a party in existence at the time a new law is passed, transferring jurisdiction of a Court to another, will not be lost, where proceedings in the case were on-going before the commencement of the law. This is because there is a general presumption against retrospective legislation. The Courts guard their jurisdiction jealously and lean against giving statute retrospective application terms… The suit in this case was filed on 5th July 1988. Proceedings in terms of exchange of pleadings and hearings of various applications had begun before 17/11/1993, when Decree 107 of 1993 came into effect. Not being of retrospective effect, it did not oust the jurisdiction of the Court to entertain the suit.”
Appellant’s Counsel was expected to be aware of these vast volume of decided authorities of this Court and the apex Court on this issue of law, but he appears to have fare very little. The jurisdiction of the trial High Court was not affected by the (Third Alteration) Act, 2010.
I resolve the Issue 1 against the Appellant.
On Issues 2 and 3, whether the trial Court was right to hold that the respondent “is still and remains an employee” of the Appellant, after the unsigned dismissal letter of 3/8/2006, and preventing her from continuing to work for Appellant, and whether the trial Court was right, when it ordered the payment of accrued salaries and entitlements to Respondent, Appellant’s Counsel had answered both in the negative, while the Respondent’s Counsel hailed the trial Court.
The circumstances of this case appear not to fit into the traditional principles governing employments in a simple master – servant relationship, which allows the employer the unrestrained right/power to hire and fire his servant, at will, provided it complies with the requirement of due notice to terminate the employment, or pays the stipulated salaries, in lieu of notice. That was the principle in the case of Ifeta Vs SPDC Nig. Ltd (2006) 8 NWLR (Pt.983) 585, which Appellant relied on heavily to the effect that termination of employment can be done orally or in writing or even by conduct, where the employer no longer wants the employee in his service, and that even where the termination or dismissal of the employee occurs, the employee is only entitled to what would have been due to him, if the termination was duly done, that is, requisite notice of termination or salary in lieu of same, as damages; he said that the Court cannot force a servant on an employer in a simple employment of maser and servant, which has no statutory flavor. That has always been the law. See the case of Kwara State Polytechnic, Ilorin Vs Shittu (2012) LPELR – 9843 CA; Garuba Vs KIC Ltd & Ors (2005) LPELR – 1310 (SC); Oak Pensions Ltd & Ors Vs Olayinka (2017) LPELR – 43207 CA; Ajuzie Vs FBN Plc (2016) LPELR – 40459; Eze Vs Spring Bank Plc (2011) LPLER – 2892 (SC) and Olaniyan Vs UNILAG (1985) 2 NWLR (Pt.9) 559.
In the case of Agbarakwe Vs University Press Plc (2015) LPELR – 25613 (CA), it was held:
“The authorities are replete, that an employer has the power to hire and fire any of its staff/workers, at anytime, for any reason, or for no reason at all, and does not owe him any explanation or apology, provided it keeps to the terms of the agreement governing their relationship of master/servant in the termination. See Garuba Vs Kwara Investment Ltd(2005) MJSC 58; Iwuchukwu Vs Nwizu (1994) 7 NWLR (Pt.357) 379… The general principles in master/servant relationship is a master who no longer savours the services of his servant can call it quit at any time and does not even owe the servant any explanation or reason to dispense with this (servant’s) services, provided he (master) respects the agreed terms of the contract of employment which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected.. The simple truth is that, even where the master is mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (the Court) can do in the situation that the services of the servant is no longer required by the master, as the Court cannot impose or force a servant (however willing) on an unwilling master. See the case of Katto Vs CBN (1999) 5 SCNJ 1; Idoniboye-Obu Vs NNPC (2003) 1 SCNJ 87.”
This case at hand however appears to be different, as the fact of the actual dismissal of the Respondent or termination of her appointment is shrouded in controversy and uncertainty. Appellant is alleged to have issued an unsigned letter of dismissal to the Respondent on 3/8/2006, and had filed a statement of defence in this case, asserting that position of having dismissed the Respondent by the said unsigned letter of dismissal, dated 3/8/2006. But at the hearing of the case, Appellant did not defend the Suit, thereby abandoning the said pleading and the statement on oath made, front loaded in the case. By law, a pleading whereof no evidence is led, is deemed abandoned. See the case of Ilodibia Vs Nigeria Cement Company Ltd(1997) LPELR – 1494 SC; Magnusson Vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt.317) 287; Dingyadi Vs Wamako & Ors (2008) LPELR – 4041 CA.
In the case of Ngoka Vs Ifezue & Ors (2016) LPELR – 41312 (CA), my Lord Agbo JCA, drove home the point, when he said:
“Pleadings can never graduate to evidence and a pleaded fact on which no evidence is led is deemed abandoned, unless admitted in clear terms. The defendants having not led evidence are deemed to have admitted all evidence led by the Plaintiff which evidence must be in consonance with his own pleadings. In the instant case, the trial Court was bound by the unchallenged evidence of the Plaintiff and his witness, which evidence was not challenged by the defendant…” In Ifeta Vs SPDC (Nig) Ltd (2006) LPELR – 1436 SC, the Supreme Court said:
“… It is noted that pleadings can not constitute evidence and a defendant, as in the instant case, who does not give evidence in support of his pleading or in challenge of the evidence of the Plaintiff, is deemed to have accepted and rested his case on the facts adduced by the Plaintiff, notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded and does not constitute proof of such facts, unless such facts are admitted. See Woluchem Vs Gudi (1981) 5 SC; Basheer Vs Same (1992) 4 NWLR (Pt.236) 491…” Per Mohammed JSC
Of course, by law, a document which does not carry the signature of the maker/writer, is of no probative value and is worthless. The authorities on this are replete. See the case of Brewtech (Nig) Ltd Vs Akinnawo & Anor (2016) LPELR – 40094 CA; Gov. of Lagos State & Ors Vs Ohaigo Nig Ltd & Anor (2018) LPELR – 45552 (CA); and Enebong & Anor Vs Edem & Ors (2016) LPELR – 41190 (CA), where my Lord Oyewole JCA ruled:
“An unsigned document is totally worthless and incapable of conferring any legal rights.”
See also Maku Vs Al-Makura & Ors (2016) LPELR – 48123 SC, where the apex Court held:
“The fact is settled, that unsigned document is worthless and does not have legal status.” Ogunbiyi JSC.
I do not think Appellant can found on the case of Ifeta Vs SPDC (Nig) Ltd (2006) 8 NWLR (Pt.983) 585, which it placed heavy reliance on to say that termination of appointment need not be written; that it can be oral or even by conduct. Of course that cannot be, where the employer fails to communicates any valid notice of withdrawal of service to the employee, as in this case.
The fact that Appellant did not lead any evidence at the trial, robs it of any such claim that despite the fact that the dismissal letter was not signed, it took other steps to demonstrate that the Respondent had been sacked. Even when the Respondent strangely wrote to Appellant on 6/6/08, after about 2 years of the alleged dismissal by the purported unsigned letter of 3/8/2006 (to confirm whether she was in fact, sacked), the Appellant, surprisingly replied and prevaricated, implying that the Respondent was still in service, and even pleaded for time to later reach out to the Respondent on the matter. The letter by the Appellant (Exhibit D) is on page 143 of the Records of Appeal. It reads:
“Your letter of 6th June, 2008 on the above subject matter refers. Please be informed that we are looking into the issue raised in your letter and shall revert to you on the outcome of our investigation, shortly.
Meanwhile, we request that you suspend further action on the matter pending the outcome of our investigations. We trust that we can Count on your co-operation.”
Of course, Appellant never wrote back to the Respondent, but had by the above letter failed to confirm the dismissal of Respondent in my opinion. It cannot therefore rely on any purported conduct of blocking the Respondent from working by its staff to suggest that the Respondent had been indirectly notified of the dismissal. It is not the act of every staff of the Appellant that can be taken as act of the Appellant. See Rainson Industries Ltd Vs Abia State Comm. For Health & Social Welfare & Ors (2014) LPELR – 23771 (CA), where this Court held:
“In defining who the Alter Ego of a company is, Nnaemeka Agu JSC, in the case of NNSC Vs Dabana (1988) NWLR (Pt.74) 23… has this to say ”… A company… is an abstraction. It must therefore act through living person. But it is not the act of every servant of the company that binds the company. Those whose acts bind the company are their alter ego- those persons who, because of their positions, are the directing mind and will of the company, the very ego and corporate personality of the company. See Lernards Carrying Co. Ltd Vs Asiatic Petroleum (1915) AC 705…”
See also Fairline Pharmaceutical Industries Ltd & Anor Vs Trust Adjusters Nig. Ltd (2012) LPELR – 20860 CA.
The sum total of the above evidence and facts, tend to show that there was no dismissal or termination of Respondent’s appointment by the purported unsigned letter of 3/8/2006, especially, as two years after the alleged letter of dismissal, Appellant still wrote to the Respondent, as its staff, pleading for time to do some investigation on the issue the Respondent raised, touching on the purported dismissal, and expressing trust in the Respondent that it (Appellant) could count on the Respondent’s co-operation!
I therefore agree with the Learned trial Judge, that she was right, when she held:
“It is therefore my belief, that the Plaintiff in the instant suit by the totality of her evidence, that were never challenged by the defendant but rather admitted… and on the authority of the above decisions, have succeeded in proving her case, and therefore is entitled to the declarations sought in her claim. The defendants purported termination of the Plaintiff’s employment through an unsigned letter is of no effect and therefore is held to be null and void by this Court. In consequence thereof, I hold that the Plaintiff is entitled to her salaries and entitlement from August, 2006, till date, as well as the reliefs she is asking from this Court. Judgment is therefore entered in favour of Plaintiff as per Paragraphs 22(a) – (d) of the Amended Statement of Claim, i.e.:
(1) That the Plaintiff is still and remains an employee of the defendant.
(2) That the unsigned letter dated 3rd August, 2006, purporting to dismiss the Plaintiff from the employ of the defendant is null and void and of no effect.
(3) The defendant is ordered forthwith, to pay the Plaintiff her accrued salaries and entitlements of N2,244,000.00 (Two Million, Two Hundred and Forty Four Thousand Naira) from 3rd August, 2006…” See Pages 213 – 214 of the Records of Appeal.
However, I think the acceptable amount accruing to the Respondent as salaries and entitlements should be calculated on what the Respondent pleaded on paragraph 20 of her pleading and led evidence to show that she was earning N2,244,000 per annum, as at 3/8/2006, when the trouble ensued. The claims of N5million payable to her contemporaries in 2007 and N6m in 2008, would appear to be founded on speculation and assumption, that the Respondent would be entitled to similar increase in salary and entitlement, as her contemporaries, who were working for Appellant in 2007 and 2008, and thereafter.
I think it would be proper to peg the Respondent’s salaries and entitlements to what she actually earned as at 3/8/2006, which was N2,244,000.00, per annum. The Respondents was therefore entitled to that amount in 2007 and 2008 in my view when Appellant wrote on 27/6/2008 to raise her hopes, to expect further positive information on her case. I think that regime of payment of salaries and entitlements of the Respondent remained to the date of judgment. I do not think the order of injunction was necessary or is necessary as the Appellant can sack or fire the Respondent, if it does not want her services anymore, upon giving due notice.
I therefore resolve the Issues against the Appellant (except the modification in the salaries and entitlements of the Respondent in the years 2007 and 2008, and thereafter, which shall remain at N2,244,000.00 (N2.244Million) per annum, being the last known annual salaries/entitlement of the Respondent, as at 3rd August, 2006, when the offending purported dismissal letter was served on Respondent, and which brought about this case.
The Appeal is therefore dismissed for lacking in merit.
Parties to bear their respective costs.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my Learned Brother, ITA G. MBABA, JCA.
I agree with His Lordship’s reasoning and conclusion and I would also dismiss the Appeal for want of merit.
I dismiss the Appeal.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.
I equally find no merit in this appeal and I therefore dismiss it.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
DR. A.J.C. MOGBANA, with him, E.O. DONIA (MISS) For Appellant(s)
IFEANYI OKUMAH, ESQ. For Respondent(s)