Aina Racheal Banke & Ors V. Akure North Local Government (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

The plaintiffs took out a Writ of Summons issued 5th January, 2005. Pursuant to an order of the trial court obtained 3rd October, 2006 an Amended Statement of Claim dated 6th October, 2004 was filed 6th October, 2006 by the plaintiffs. The plaintiffs hereinafter referred to as the appellants instituted the action against the defendant hereinafter referred to as the respondent before the High court of Ondo State sitting at Akure claiming the following reliefs:

A DECLARATION that the omnibus letter of termination of appointment sent to the plaintiffs severally, terminating their appointment retrospectively from the employment of the defendant is wrongful, illegal, oppressive and a gross violation of relevant rules and regulations governing their employment.

AN ORDER reinstating the plaintiffs to their different cadres of employment with the defendant with payment of all owed arrears of salaries up to the time of reinstatement.

ALTERNATIVELY

AN ORDER for payment of all outstanding salaries and allowances due to the plaintiffs.

Parties exchanged pleadings and the case proceeded to trial. The plaintiffs testified through one witness while the defence called two witnesses on their behalf. Altogether six exhibits were tendered and marked A, B-B64, C-C146, D, E and F. At the conclusion of hearing and after the filing and exchange of addresses of learned counsel for either side, the learned trial Chief Judge, in a considered judgment delivered 18th October, 2007 dismissed the appellants’ claims. Being dissatisfied with the decision the appellants have appealed to this court vide a notice of appeal dated and filed 7th November, 2007 and containing two grounds of appeal.

The appellants in compliance with the rules of this court filed their brief of argument dated 12th November, 2008, filed 14th November, 2008 but deemed properly filed 1st March, 2011. The appellants’ brief of argument was settled by F. OMOTOSHO ESQ. The respondent failed to file a respondent’s brief. Thus upon the Motion on Notice dated 10th November, 2011 and filed 11th November, 2011 which motion was duly served on the respondent on 28th March, 2012, A. A. IKUJUNI for the appellants/applicants on the 3rd of April, 2012 moved this court to hear the appeal on the Appellants’ Brief of Argument alone, the respondent having failed to file any brief. The application was granted and the appeal was heard on the appellants brief alone.

At the hearing of the appeal on 18th of March, 2013 F. OMOTOSHO ESQ. adopted and relied on the appellants’ brief of argument and urged the court to allow the appeal and set aside the judgment of the lower court.

Notwithstanding the fact that the respondent failed to file a brief of argument and which failure necessitated the hearing of the appeal solely on the appellant’s brief, the appeal shall all the same be determined on its merit.

The summary of facts that led to this appeal is that the appellants who had jointly instituted an action for wrongful, unconstitutional and illegal termination of their respective appointments against the respondent, had their entire claim dismissed at the trial court. In the judgment the trial judge had at page 57 lines 16 – 19 of the record held inter alia:

“…..it is apparent from the issues highlighted that the contract of employment between the plaintiffs and the defendant is one with statutory flavor. It is therefore the Local Government (Staff) Regulations, 1960 that will govern the mode of termination of the employment.”

Also at page 58 lines 11 – 15 of the record, the learned trial judge went on to hold that:

“From the evidence before the court there has not been due compliance with the terms of the Agreement as to the length of the Notice required or the payment of a month’s notice (sic) in lieu of the stipulated notice. The notice of termination of the employment of the Plaintiffs by the Defendant was with a retrospective effect and thus not in compliance with Regulation 31.”