Mr. Mufutau Ayinla Oyeyemi V. Mobil Oil Nigeria Plc (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of the Oyo State High Court delivered on 31st October, 2008 by Ige, J. in favour of the respondent, then defendant in the trial court. The plaintiff now Appellant by way of writ of summons and statement of claim against the Respondent sought some declaratory reliefs as well as an order converting the termination of his appointment into retirement and an order for the payment of his entitlements based on the appellant’s right as a pensioner of the Respondent.

The Respondent in his statement of defence denied liability arising from the termination of the contract of employment of the Appellant. At the close of trial, the learned trial judge held that that the Respondent had exercised its common law right to hire and fire and as such, the termination of the Appellant’s contract of service by the Respondent was lawful. All the reliefs sought by the Appellant were refused and dismissed in its entirety. The appellant appealed being dissatisfied with the judgment and urged that the judgment be set aside.

After the Appellant had filed and served his brief of argument on the Respondent, the Respondent observed that the originating processes filed by the Appellant in respect of the proceedings in the trial court were signed by a law firm rather than a legal practitioner as laid down in OKAFOR & 2 ORS. v. NWEKE & 4 ORS. (2007) 3 S.C. (Pt. 11) p. 55 at 62-63, PARAS. 20-35, 64 PARAS. 5-20. As a result, the Respondent filed a preliminary objection on 13/11/09 to the hearing of the Appeal, which was argued in the Respondent’s brief and was responded to by the Appellant in his reply brief filed on 23/6/11.

For the determination of the Appeal, the appellant formulated five (5) issues. They are as follows:

“(1) Whether the learned trial judge was right in basing his decision on the issues that he raised suo motu and outside the pleadings of the parties and evidence on the record of the court that a collective agreement will not be binding on an employer unless it can be proved or shown that the terms and conditions in the collective agreement have been adopted and incorporated into the contract of service of such employee.

(2) Whether the respondent can terminate the appointment of the appellant without compliance with the provision of the collective agreement Exhibit B and without payment of monthly pension to the appellant as provided for in Exhibit C.

(3) Whether the learned trial judge was right in the absence of issues in the pleading and evidence on record and counsel address on it in incorporating into exhibits B and C extraneous issues that the appellants should have exercised the right to retire under Exhibit C before he was fired by the respondent and that exhibit B is defective as to date of commencement and execution by the parties.

(4) Whether the evidence of the appellant that the Marketing Director of the respondent, Mr. G. B. Dal Silva, threatened to return him to detention before he signed exhibits E and F was discredited and if the answer is in the negative whether the finding of the learned trial Judge that D.W.1 was not cross examined on the issue of duress was perverse in the absence of evidence from him on the issue of duress.

(5) Whether there is distinction in law between retirement of appointment and conversion of termination of appointment into retirement and if the answer is in the affirmative whether the decision of the learned trial judge that the appellant cannot be reinstated into his employment is perverse having regard to the fact that the appellant did not seek any relief for his reinstatement but only sought relief for the conversion of the termination of his employment into retirement.”

In response to the above issues, the respondent objected to the competence of the appeal, argued in its respondent’s brief and in the alternative, should the preliminary objection fail, formulated three (3) issues for the determination of the appeal. They are:

“(1) Whether the collective agreement – Exhibit B between the Respondent and the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) which was undated and was not executed by the parties, is enforceable by the Appellant vis-a-vis his letter of appointment which was neither pleaded nor tendered in evidence before the trial court?

(2) Having regards to the Appellant’s evidence before the trial court as can be seen in the record of appeal, whether the Appellant’s acceptance of his termination letter and collection of his entitlements were under duress?

(3) Whether the learned trial judge was right to apply the principle that part-performance does not apply to a contract of service as laid down in DR. BEN CHUKWUMA v. SPDC (1993) 4 NWLR (Pt. 289) PAGE 512 AT 537 PARA. F-G to the instant case?”