EKSU & ORS v. OLUWAFEMI & ORS
(2022)LCN/16464(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/EK/65/2021
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
EKITI STATE UNIVERSITY, ADO-EKITI STATE & 2 ORS. APPELANT(S)
And
OGUNDIPE JOSHUA OLUWAFEMI & 31 ORS. RESPONDENT(S)
RATIO:
COMPLYING WITH THE LETTERS OF TERMINATION OF APPOINTENT
A perusal of the processes filed by the parties show very clearly that in terminating the appointment of the respondents, three months notice must be given or 3months salary in lieu of notice must be paid.
This in my view ex facie the letters of termination of appointment has not been complied with. The express mandatory provision of a statute or regulation must be expressly complied with without any room for speculation. A Court must interpret, the compliance with statutory provisions within the four walls of the contract. The Regulation i.e Regulation Governing the service of the Senior/Junior Staff of the University made sequel to the Ekiti State University Law No. 12 of 2014 has expressly provided for the conditions. The letter of termination must expressly comply. See WARNER & WARNER INTERNATIONAL ASSOCIATES (NIG.) LTD. VS. FHA (1993) 6 NWLR PT. 298. P. 148.
The Respondents have shown the terms and conditions breached by the appellants which is the bedrock of their case. The appellants have however not shown why the terms and conditions have been breached. See KATTO VS C.B.N. (1999) 6 NWLR PART 607 page 390. The letter of termination and is the mirror through which compliance by the Appellants with the statutory provision is gauged and assessed. I resolve this issue against the appellants in the circumstance. TUNDE OYEBANJI AWOTOYE, J.C.A.
THE AWARD OF COST IS ENTIRELY AT THE DISCRETION OF THE COURT
Costs follow the event. According to RHODES-VIVOUR J.S.C in NNPC VS. CLIFCO NIG. LTD. (2011) 10 NWLR PART 1255 P. 209:
“The award of cost is entirely at the discretion of the Court, costs follow the event in litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See ANYAEGBUNAM VS OSAKA (1993) 5 NWLR PT. 294 P. 449;OBAYAGBONA VS OBAZEE (1972) 5SC P. 247.”
It needs to be noted that costs are matters within the discretion of the trial Judge. See OJIEGBE & ANOR VS UBANI & ANOR (1961) LPELR – 25060 (SC).
I am unable to see why the costs awarded to the Respondents whose employment have been wrongfully terminated should be disturbed. As there is no disenabling circumstance to deprive them of the cost. See LAYINKA & ANOR VS MAKINDE & ORS. (2002)10 NWLR PART 775 P. 358. TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants who were the defendants at the lower Court against the decision of the National Industrial Court delivered on 8/12/2020 in Suit No. NICN/AD/03/2020.
The claimant’s claim against the defendants as per paragraph 25 of their STATEMENT OF FACTS reads as follows:-
a. A DECLARATION that the disengagement of the claimants as staff of the 1st defendant in the manner it was done was unlawful, irregular, illegal and therefore null and void and of no effect.
b. AN ORDER for the immediate restoration and reinstatement of the claimants to their offices without loss of salaries, promotions, emoluments and other allowances due to them as staff of the 1st defendant.
c. PAYMENT OF THE CLAIMANT THREE (3) MONTHS SALARIES, emoluments and other allowances owed them before the purported and unlawful disengagement.
d. PAYMENT OF THE CLAIMANT SALARIES, emoluments and allowances from the date of their purported and unlawful disengagements till date of judgment and thereafter.
e. AN ORDER of perpetual injunction restraining the defendants whether by themselves or through their servants, agents, privies acting through them or on their behalf from removing the claimants as staff of the 1st defendant without due process of law.
f. TEN MILLION NAIRA (N10,000.000) only being general and aggravated damages against the defendants for the unlawful and illegal disengagement of the claimants in the manner it was done.
Pleadings were filed and exchanged by the parties. After hearing the parties, the learned trial Judge entered judgment in favour of the claimants in the following terms:
“In summary therefore, it is hereby declared and ordered as follows:
1. The employments of the claimants with the defendants enjoy statutory flavor.
2. The employment of the claimants with the defendants is regulated by the defendant’s statute, regulations and the claimants’ letters of employment.
3. The disengagement of the claimants in the manner it was done was unlawful, null and void.
4. The claimants are hereby reinstated to their erstwhile positions in the 1st defendant.
5. The 1st defendant is hereby ordered to pay the claimants their three months’ salaries owed them before their unlawful disengagement.
6. The 1st defendant is hereby ordered to pay the claimants their salaries, emoluments and allowance and from the date of their unlawful termination till reinstatement today 8th December, 2020 and subsequently till retirement.
7. The claimants are not entitled to general damages
8. The defendants are also to pay to each claimant cost of N50,000.00
9. The salaries and cost up till today 8th December, 2020 are to be paid within 30 days of this judgment for the amounts will attract 10% interest per annum.
This is the judgment of the Court and it is entered accordingly.”
Dissatisfied with the decision, the defendants, now appellants filed a Notice of Appeal containing four grounds.
GROUNDS OF APPEAL
GROUND ONE
“The learned trial Judge erred in law by holding as follows:
By the authority of DANIEL M. OGBAJE VS. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LTD (2007) LPELR-11855 (CA), where, as in this case, an employee is qualified by his appointment to a permanent and pensionable position, the employee is not in a servant and master relationship with the employer. It follows therefore that determination of such appointment for “services no longer required” is not compatible with the status of the claimants. Similarly, determination by notice or salary in lieu of notice as contained in the 1st defendant’s regulation is also incompatible with the status of an employee in the pensionable cadre in the public service of state”.
GROUND TWO
The trial Court misdirected itself on the facts of this case in holding thus:
Now paragraphs 3 of the letter of disengagement provide as follows:
By a copy of this letter, the Bursar is being informed of this development and you are required to liaise with his office so as to work out your final entitlement(s) if any.
This paragraph is not and cannot be a reference to three months’ salaries in lieu of notice which was in law supposed to be paid immediately. I agree with the claimants’ counsel that there months’ salaries of the claimants is not something that requires working out. The paragraph is a reference to final entitlements which should include gratuity and any other terminal benefit as provided in the regulations but it cannot be a reference to outstanding salaries and salaries in lieu of notice.”
GROUND THREE
The learned trial Judge erred in law in declaring the disengagements of the Claimants/Respondents null and void for reason of alleged failure of the Defendants/Appellants to pay the Claimants/Respondents three months’ salaries in lieu of notice at the time of their disengagements.
GROUND FOUR
The learned trial Judge erred in law by awarding cost of N50,000.00 in favour of each of the Claimants.
After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
BRIEFS OF ARGUMENT
Appellants’ brief of argument was filed on 18/1/2022. The brief was prepared by DAYO AKINLAJA SAN.
Learned senior Counsel proposed two issues for determination as follows:
“1) WHETHER IN THE ENTIRE CIRCUMSTANCES OF THIS CASE, THE LEARNED TRIAL JUDGE WAS NOT WRONG TO HAVE NULLIFIED THE TERMINATION OF THE EMPLOYMENTS OF THE RESPONDENTS FROM THE SERVICE OF THE 1ST APPELLANT AND GRANTED THE RELIEFS SOUGHT BY THERESPONDENTS.
2) WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG TO HAVE AWARDED A COST OF N50,000.00 EACH IN FAVOUR OF EACH OF THE RESPONDENTS.”
Learned senior Counsel, on receipt of the Respondents’ Brief of Argument subsequently filed APPELLANTS’ REPLY BRIEF on 3/3/2022.
The Respondents’ Brief of Argument was settled by PEREBO PESTA MONDE their counsel and filed on 11/2/2022.
Learned Respondents’ Counsel adopted the two issues proposed by learned senior counsel for the Appellants in this appeal.
RESOLUTION
ISSUE ONE
Whether in the entire circumstances of this case, the learned trial judge was not wrong to have nullified the termination of the employments of the Respondent from the service of the 1st Appellant and granted the reliefs sought by the Respondents.
The facts of the instant appeal are straightforward. The Respondents are employees of the 1st Appellant until 5/12/2019 when vide letters bearing the same date they were purportedly disengaged from service purportedly in line with 2017 Regulations of the 1st appellant.
Now it is not in doubt that the employment of the Respondents enjoy statutory flavor. The learned trial Judge on page 553 of record of appeal found as follows:
“The defendants, through their learned counsel, Dayo Akinlaja SAN, at least conceded to this position when the learned silk submitted in paragraph 5.7 of the defendant’s final written address as follows:
In the surrounding circumstances, it is humbly submitted that while it is not in dispute that the employment of the claimants enjoy statutory flavor, their disengagement were/are in accordance with the prescription of the regulations governing their service to the defendants and cannot be faulted.”
The above finding has not been challenged in this appeal. It therefore stands. See OKOTIE-EBOH VS. MANAGER (2004) 11-12 SC. 174, ADEJOBI & ANOR VS THE STATE (2011) LPELR -97 (S.C), IJALE VS LEVENTIS (1959) 4FSC. 108.
When does an employment have statutory flavour?
MARY UKAEGO PETER-ODILI JSC, explained it thus:
“On the question whether or not the employment in issue enjoys statutory flavour, I need to state very humbly too that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:-
(i) The employer must be a body set up by the constitution or statute and;
(ii) The statute or regulations made pursuant to the Constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline.“
In employments that enjoy statutory flavour, the terms of the said employment must be strictly adhered to when such employee is to be disciplined or when such employment is to be terminated. See EPEROKUN VS UNILAG (1986) 4 NWLR (PT. 34) 162, BAMGBOYE VS UNILORIN (1999) 10 NWLR (PT. 622) 290.
In this appeal as aforestated, the employment of the Respondents enjoy statutory flavour. Were the terms of the employment adhered to in line with the provisions of the relevant Regulation?
Paragraph 11 of the Statement of Fact reads:
“The Claimants aver that sometimes in 2018, the defendants were not paying claimants and other staffs of the 1st defendant as and when due hence accumulated a total indebtedness of three (3) months salaries to the claimants and other staffs of the 1stdefendant which the defendants promised to pay to all their staffs as soon as the subventions of the 1st defendant is received from the Ekiti State Government but till the date of the purported disengagement of the claimants, the three (3) months salaries and emoluments had yet to be paid and are still outstanding.”
The initial hurdle to cross before answering this question is whether or not the three months of salaries and allowances as claimed in paragraph 11 of remain unpaid? Paragraph 11 of the Statement of Facts was not denied or controverted by the appellants in their Defendants’ Statement of Defence. The implication of this in law is that it is deemed admitted. See MORENIKEJI VS ADEGBOSIN (2003) 8 NWLR (PT. 823) 612, OKENE VS. ORIAMWO (1988) 9 NWLR (PT. 566) 408, ORIANZI VS A-G. RIVERS STATE & ORS (2017) 271 LRNC 150 AND MEKWUNYE VS. IMOUKHUEDE(2019) LPELR – 48996 (SC).
It is therefore deemed established.
Was the employment of the Respondents terminated in line with the University Regulations?
Paragraphs 14, 15, 23 and 24 of the statement on oath of 1st claimant at the lower Court presents the case of the claimants thus:
(14) “However, sometimes on 6th December, 2019, we were served with letters dated 5th December, 2019, titled “Letter of disengagement from the university” stating therein that “your services are no longer required in the University. Consequent upon the above, you are hereby disengaged from the services of the University with effect from Thursday, 5th December, 2019”. The letters were addressed to each of us and are hereby pleaded and shall be relied upon at the trial.
(15) That although we were stunned by the turn of events but based on paragraph 4 of the letters of disengagement which stated that “the Governing Council has set up a committee to entertain complaints from any disengaged staff you are therefore advised to liaise with the office of the Registrar on this” we appealed individually and severally to the committee through the Registrar/Secretary to Council but we were told that our appointments/employments with the 1st defendant was irregular hence there is nothing the defendants would do on it.
(23) That our appointments were never influenced by any political consideration at all hence we were rigorously interviewed in both oral and written interview before our appointments, confirmation and promotion hence the defendants cannot summarily disengage us without following due process.
(24) That we can only be disengaged with either three (3) months notice and/or three (3) months salaries in lieu of notice which must be paid ahead or as at the time of disengagement in accordance with the 1st defendant conditions of service applicable to our offices. We plead and shall found on the 1st defendant conditions of service applicable to us at the trial. Notice is hereby given to the defendants to produce the Original/Certified True Copy of the 1st defendant’s conditions of service applicable to us at the trial.”
In response, GBOYEGA AYODEJI AFOLABI, the sole witness for the defendants in his witness statement on oath deposed in paragraphs 4-6 as follows:
“The issue of termination of the Claimants’ employments was not revisited only for reason that the termination had been rightly and validly done in consonance with regulations guiding the employments, as a result of which the contention of the Claimants that their employments were not lawfully terminated is unfounded and indefensible in law.
The employments of the Claimants were lawfully terminated in line with the governing provisions and as such the Defendants had no reason to took for any reason to explain the termination. The Defendants were only being charitable to the Claimants by mentioning the reason given in their Solicitors’ letter and it is irrelevant whether or not the Claimants believe the reason. The letter of Dayo Akinlaja & CO. dated 17th February, 2020 is hereby pleaded and shall be relied upon at the hearing of this case.”
A copy of the said letter of disengagement from the University (written to miss Olubunmi Yetunde Abioye) reads thus:
“Our Ref: AD/EST.16C/VOL.I/ATSE/1675 Date: 5th December, 2019
Miss Olubunmi Yetunde Abioye
Forestry & Wildlife & Fisheries
Ekiti State University
Ado-Ekiti
Dear Olubunmi,
LETTER OF DISENGAGEMENT FROM THE UNIVERSITY
I convey to you the decision of the Governing Council of the University at its 135th Meeting held on Thursday, 5th December, 2019 that your services are no longer required in the University. Consequent upon the above, you are hereby disengaged from the services of the University with effect from Thursday, 5th December, 2019.
You are required to hand over the University property in your care to your Head of Department and submit your University identity card to the office of the Director of Personnel.
By a copy of this letter, the Bursar is being informed of this development and you are required to liase with his office so as to work out your final entitlement(s) if any.
The Governing Council has set up a Committee to entertain complaints from any disengaged staff. You are therefore advised to liaise with the office of the Registrar on this.
The University Management is using this medium to thank you for the services rendered to the University during your engagement.
On behalf of the Governing Council, I wish you the best in your future endeavour.
Thank you.
Akin Arogundade; Esq.
Registrar and Secretary to Council.”
A perusal of the processes filed by the parties show very clearly that in terminating the appointment of the respondents, three months notice must be given or 3months salary in lieu of notice must be paid.
This in my view ex facie the letters of termination of appointment has not been complied with. The express mandatory provision of a statute or regulation must be expressly complied with without any room for speculation. A Court must interpret, the compliance with statutory provisions within the four walls of the contract. The Regulation i.e Regulation Governing the service of the Senior/Junior Staff of the University made sequel to the Ekiti State University Law No. 12 of 2014 has expressly provided for the conditions. The letter of termination must expressly comply. See WARNER & WARNER INTERNATIONAL ASSOCIATES (NIG.) LTD. VS. FHA (1993) 6 NWLR PT. 298. P. 148.
The Respondents have shown the terms and conditions breached by the appellants which is the bedrock of their case. The appellants have however not shown why the terms and conditions have been breached. See KATTO VS C.B.N. (1999) 6 NWLR PART 607 page 390. The letter of termination and is the mirror through which compliance by the Appellants with the statutory provision is gauged and assessed. I resolve this issue against the appellants in the circumstance.
ISSUE TWO
WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG TO HAVE AWARDED A COST OF N50,000 EACH IN FAVOUR OF EACH OF THE RESPONDENTS.
Costs follow the event. According to RHODES-VIVOUR J.S.C in NNPC VS. CLIFCO NIG. LTD. (2011) 10 NWLR PART 1255 P. 209:
“The award of cost is entirely at the discretion of the Court, costs follow the event in litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See ANYAEGBUNAM VS OSAKA (1993) 5 NWLR PT. 294 P. 449;OBAYAGBONA VS OBAZEE (1972) 5SC P. 247.”
It needs to be noted that costs are matters within the discretion of the trial Judge. See OJIEGBE & ANOR VS UBANI & ANOR (1961) LPELR – 25060 (SC).
I am unable to see why the costs awarded to the Respondents whose employment have been wrongfully terminated should be disturbed. As there is no disenabling circumstance to deprive them of the cost. See LAYINKA & ANOR VS MAKINDE & ORS. (2002)10 NWLR PART 775 P. 358.
I resolve this issue as well against the appellants.
This appeal lacks merit. It is accordingly dismissed. The decision of the lower Court delivered on 8/12/2020 in Suit No. NICN/AD/03/2020 is hereby affirmed.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ABDUL-AZEEZ WAZIRI, J.C.A.: My Lord, TUNDE O. AWOTOYE JCA, obliged me with the draft copy of the leading judgment delivered now.
I agree entirely with His Lordship that, being unmeritorious, this appeal should be dismissed.
The judgment of the lower Court delivered on 8/12/2020 in suit no. NICN/AD/03/2020 is accordingly given a clean bill.
Appearances:
DAYO AKINLAJA SAN with him E. E. NWORIE For Appellant(s)
P. P. MONDE with him A. S. AKINYEMI BOREDE, O. S. UZOCHUKWU For Respondent(s)
