Chief Tamunoemi Idoniboye-obu V.nigerian National Petroleum Corporation (2003) LLJR-SC
Chief Tamunoemi Idoniboye-obu V.nigerian National Petroleum Corporation (2003)
LAWGLOBAL HUB Lead Judgment Report
O. UWAIFO, J.S.C.
In this appeal, the appellant has set down three issues for determination. In the course of arguing issue 2, the appellant in his brief of argument has by virtue of Order 6, rule 4(4) of the Supreme Court Rules (as amended in 1999) invited this court to depart from some of its decisions to which I shall make reference later. The respondent is a creation of a statute deemed enacted by the National Assembly having been promulgated by Decree No. 33 of 1977. It is the Nigerian National Petroleum Corporation Act, 1977 now to be found in Cap. 320, Laws of the Federation of Nigeria, 1990. It is therefore a Federal Government Corporation which is known to perform a central role in the petroleum industry in Nigeria. Would the fact that the respondent was created by a statute and enjoys commanding relationship with the Federal Government give the employment of its servants statutory flavours The appellant claims that the respondent being a statutory creation and a Federal Government parastatal, his employment with it has that status. He has pursued that argument right to this court. The respondent says no; it is the contract of service that reflects the type of employment. Who between them has the backing of the authorities as they stand In the meantime, I will state the short facts of the case.
The appellant was appointed by the respondent with effect from September 1, 1980. Five years later his appointment was terminated with effect from 30 August, 1985. He then brought action against the respondent claiming for
“(i) A declaration that the purported termination of his appointment by a letter AD/Per/C.661O dated 30th August, 1985 is unlawful, ineffective, null and void.
(ii) An injunction restraining the defendant, its servants or agents from ejecting the plaintiff from his No. 18 Wogu Street, D/Line, Port Harcourt official quarters or in any manner interfering with the plaintiff’s legal service entitlements until the lawful determination of his contract of service with the defendant.”
The appellant relied on and pleaded in paragraphs 4 and 5 of the statement of claim that the terms of the letter of appointment, which he accepted, governed his appointment. He also relied on the conditions of service of the respondent as stated in a document which was admitted as exhibit B at the trial, and also the Act which set up the respondent and “other policy circulars.” The respondent admitted this in paragraph 3 of the statement of defence.
The termination of the appellant’s employment was by a letter dated 30 August, 1985, (exhibit H) whose body captioned “Termination of Appointment” reads:
“Management has decided to terminate your appointment with effect from today 30th August, 1985.
You are hereby terminated immediately. You should please handover all Corporation’s properties in your care and pay up the balance of any loan owed by you to the Corporation immediately.
The General Manager, Finance and Accounts is by this memo being advised, to pay you a month (sic) salary in lieu of notice.”
Although the appellant was initially appointed as a Senior Accounts Supervisor on a salary of N6,420.00 per annum, he had by promotion on 21 June, 1985 become an Assistant Chief Accounts Supervisor on a salary of N8,664.00 per annum. As pleaded by the appellant in paragraph 10 of the statement of claim, it was soon after that promotion that certain allegations of fraud against him were made. This development led to his suspension from duty and eventually to the termination of his appointment by the said letter which made no reference to any allegations of fraud.
The question of allegations of fraud made after the letter of promotion reference No. AD/Per/C.6610 of 30 August, 1985 and the issue of retrospective termination of his appointment were further pleaded in paragraph 11 of the statement of claim. These were denied in paragraph 8 of the statement of defence thus:
“Save as to admitting that the defendant by letter No. AD/Per/C6610 of 30-8-85 lawfully and according to her conditions of service terminated the services of the, plaintiff, the defendant denies all other allegations contained in that paragraph and in particular as concerns fraud and retrospective termination.”
It would appear the respondent made it clear that it relied only on the conditions of service to terminate the appellant’s appointment. Exhibit H was in pursuance of that. But the learned trial Judge (K. S. Sagbe, J.), after considering the terms of the conditions of service, particularly those dealing with termination of staff for inefficiency or for fraud, and had reasoned that the appellant’s appointment was terminated because of the alleged fraud, observed and found inter alia as follows:
“So that since the proper procedure for termination of a staff for inefficiency or even fraud was not adopted the termination of the plaintiff is invalid and of no effect. And since the termination is invalid the plaintiff continues to be regarded as a staff of the Corporation. This is because a contract of service is determinable by the master only upon reasonable notice or on the notice stipulated in the contract of the parties.”
The learned trial Judge upon this curious observation, having regard to the simple issue involved in the case before him, in the end gave judgment for the appellant, holding that he was still in the employment of the respondent; and dismissed the counter-claim in respect of the accommodation rented for the appellant by the respondent and the indebtedness of the appellant to the respondent.
The appeal against the decision was determined by the Court of Appeal, Port Harcourt Division on 20 June, 1995. The grounds of appeal and issues raised for determination from them in respect of the counterclaim were abandoned at the hearing of the appeal. In regard to the declaration made by the learned trial Judge about the subsistence of the employment of the appellant (respondent in the court bellow), the Court of Appeal made the following relevant observation inter alia:
“On the state of the facts of the case, is the respondent entitled to reinstatement which, in effect, is what the claim for declaration is all about I think not. The general law is that the courts will not grant specific performance of a contract of service. Therefore a declaration to the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the court … Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. It has also been held to arise where a special legal status such as a tenure of public office is attached to the contract of employment. No special circumstances have been disclosed to warrant a declaration being made in favour of the plaintiff in the instant case. It is to be remembered that I have already held that the contract of employment in the instant case between the parties does not have a legal or statutory flavour.
Moreover either party can terminate the contract of employment by giving one month’s notice or one month’s salary in lieu of notice in conformity with the rights of the parties under paragraph 52(a) of exhibit B.”
The court then allowed the appeal and held that going by the contract of service between the parties, the appellant was only entitled to one month’s salary in lieu of notice.
The appellant has now come before this court on three grounds of appeal against the judgment of the court below from which he formulated three issues for determination as follows:
- Whether the Court of Appeal was justified in holding that the learned trial Judge erred in law in deducing a reason for the termination of the employment of the appellant by the respondent from the sequence of events leading thereto.
- Whether the Court of Appeal was justified in holding that the relationship between the respondent and the appellant was one of mere master and servant which did not invest the appellant with a tenure and legal status. Alternatively,
- Whether this is not a proper case where declaratory reliefs ought to be granted.
Issue 2
I would like to start with issue 2 because of its importance in this appeal. It was in the course of arguing issue 2 that the appellant invited this court to overrule some of its previous decisions which he specifically mentioned as Imoloame v. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303; Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47; and Okomu Oil Palm Co. Ltd. v. lserhienrhien (2001) 6 NWLR (Pt. 710) 660. I think it will be quite appropriate to deal with that invitation at this stage. The main reason given for asking that those decisions be overruled is that pronouncements made therein run contrary to the principles relied on for the decisions in Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; (1981) 12 NSCC 19; and Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt. 9) 599.
From a close reading and clear understanding of the cases of lmoloame, Fakuade and Iserhienrhien cited above, the principles
relevant to the present discussion which they establish, or upon which pronouncements were made, are simply that (a) where an employment is governed by rules and regulations backed by statute, such as the Civil Service Rules, as to how the employment is made and determined, a person who claims to be a public servant and seeks the protection of those rules and regulations must show that he was employed subject to those rules and regulations otherwise he cannot rely on them as protecting his employment: Iserhienrhien’s case; (b) an employment with a statutory flavour, though basically creating a service relationship, goes beyond the notion of ordinary master and servant whose contractual obligation can any how be effectively brought to an end albeit in breach of contract for which the only remedy is damages: lmoloame’s case; (c) the fact that an organization or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of a special character which make the employment one with a statutory flavour and give protection to the employees: Fakuade and lserhienrhien; (d) where an appointment is determinable by the agreement of the parties simpliciter in accordance with the terms of the contract of service, under no guise can statutory flavour be attached to it but must be regarded as mere master and servant relationship: Fakuade’s case.
Mr. Ukala, SAN in his submission on behalf of the appellant contended that it was a narrow view to regard the appellant as a mere servant of the respondent under the common law in reliance on exhibit as the court below did. He argued that the appellant pleaded and proved that the respondent was created by statute Nigerian National Petroleum Corporation Act (Cap. 320) Laws of the Federation of Nigeria, 1990 – and that the terms of his employment were contained in the conditions of service as per exhibit made pursuant to the said Act. He made further submissions on the point inter alia which I quote from the appellant’s brief of argument as follows:
(1) “Exhibit B was undoubtedly made by the respondent pursuant to s. 4(1) of the Act and therefore has the force of law. The terms and conditions contained in exhibit have the status of statutory provisions.”
(2) “The test of statutory flavour in a contract of service must in our respectful view, rest on a nexus or Link between a particular contract of service and enabling regulations, provision or subsidiary regulations or conditions of service made pursuant to enabling
statutory provisions.
” (3) “It is submitted therefore that even if an enabling statute which gives a statutory body the power to enter into contract of service with any person does not go the whole hog to make express provisions on the conditions of service of such person particularly as regards recruitment and termination of employment, but gives powers to the statutory body to make such provisions in her conditions of service, the persons over whom the condition of service made by the statutory body prevail are invested (with) a special legal status and the contract of service itself acquires a statutory flavour.
Mr. Nwosu made submissions on behalf of the respondent in line with the principles laid down in lmoloame and Fakuade, distinguishing the circumstances of this case from those of Olaniyan in particular. He contended that National Petroleum Corporation Act did not make any statutory provision which should be observed for the removal of its employees even when it is by way of a disciplinary action against them; and that in regard to the appellant it was enough if the condition of one month’s notice or salary in lieu as contained in exhibit B was complied with in terminating his employment in the ordinary course of events.
I think the appellant has placed a very wrong reliance on the authorities of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 and Olaniyan v. University of Lagos (No.2) (1985) 2 NWLR (Pt. 9) 599 established by this court upon the facts and circumstances that took them outside the common law position of ordinary master and servant tenure of employment. Having so misconceived those authorities he was led to the conclusion that lmoloame v. West African Examinations Council (1992) 9 NWLR (Pt.265) 303 and the other cases cited by him which were based on the common law principle were wrongly decided. With due respect to the learned Senior Advocate, his contention in this regard is wholly untenable. It seems to me this has principally resulted from the glaring error in his submissions (1) and (3) above. As regards submission (3), I am unable to agree that the conditions of service which will give a statutory flavour to a contract of service may be a matter of inference as the submission suggests. I think they must be conditions which are expressly set out by statute such as S.17(1) of the University of Lagos Act, 1967 or statutory regulations made under subsidiary legislation, such as the Civil Service Rules. It is only in that sense that submission (2) made by Mr. Ukala may be said to be valid.
The assertion in submission (1) that the terms and conditions contained in exhibit B have the status of statutory provisions is most astonishing. It may well be true that those terms and conditions were made because of section 4 subsection (1) of the Act which set up the respondent but there is nothing to justify their being regarded as statutory provisions, nor can it be argued that they could not have been made even in the absence of that sub-section at least in regard to termination of appointment. Section 4 subsection (1) of the Act simply says:
“Subject to this Act, the corporation may appoint such persons as members of staff of the corporation as it considers necessary and may approve conditions of service, including provision for the payment of pensions.”
The conditions of service were to be drawn up and approved by the Corporation. This seems to be exactly what was done as spelt out in exhibit B which begins with: “The following provisions constitute the general terms and conditions of service approved by the Board of Directors of the Nigerian National Petroleum Corporation in respect of the employment of all staff in the Corporation.” Those terms and conditions covering sixty clauses were then set out in about eighteen foolscap pages typed double space. Clauses 52, 53, 54 and 55 deal with resignation and termination of appointment, termination for inefficiency, summary dismissal and suspension from duty respectively. Exhibit B is not a statutory regulation nor is it given any statutory authentication. Even if it had been, there is nothing in the terms and conditions which the respondent breached in determining the employment of the appellant as I shall show presently.
In Olaniyan’s case, apart from the Memorandum of Appointment which was the Agreement containing the terms and conditions of service, there was the University of Lagos Act, 1967. Under section 17(1) of that Act, provisions for disciplinary measure against certain categories of officers and staff are made. The Act sets out the procedure that must be followed to remove such employees from the service. When the mandatory procedure is not complied with, any disciplinary action taken against them will be declared null and void. It is those statutory provisions that are regarded as giving them some measure of security and protection. That is the proper sense in which it is said that that kind of employment has a statutory flavour. It cannot be easily determined as that of a mere servant not having such protection can. That was how similar protective statutory provisions were applied also to nullify improper dismissal, termination or retirement in cases like Shitta-Bey v. Federal Public Service Commission (1981) 12 NSCC 28; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376. It is remarkable that Olaniyan and Shitta-Bey relied on by the appellant were discussed and distinguished in Imoloame and Fakuade which he has urged this court to depart from as being wrongly decided.
I must, however, emphasise that in Olaniyan and similar cases, the relevant statutory provisions stipulating the disciplinary procedure to be followed are specifically for the protection of some senior cadres of officers and staff not the generality of the staff. It needs no argument that in regard to junior cadres such protection is not available i.e., as made in those provisions. It seems to me the appellant may have misplaced his reliance on Olaniyan to contend that his employment for some reason must enjoy statutory flavour whereas, as will be shown, he was occupying a considerably low cadre as a junior staff of grade in the respondent’s employment. It is easy to understand from Olaniyan and Shitta-Bey that the rules and regulations which are claimed by an employee to be part of the terms and conditions of his employment capable of giving it statutory flavour and be of protection to the employee must (I) have statutory reinforcement or at any rate, be regarded as mandatory, (2) be directly applicable to the employee or persons of his cadre, (3) be seen to be intended for the protection of that employment; and (4) have been breached in the course of determining the employment; before they can be relied on to challenge the validity of that determination.
Mr. Ukala on behalf of the appellant has made elaborate effort to submit as to the jurisdiction of this court to overrule its previous decisions. I can hardly see the need for such effort since that jurisdiction is not in any doubt. It has been done in well recorded instances. Indeed, the jurisdiction to do so is now implied in Order 6, r.5(4) of the Supreme Court Rules (as amended in 1999) which provides:
“If the parties intend to invite the Court to depart from one of its own decisions, this shall be clearly stated in a separate paragraph of the brief, to which special attention shall be drawn, and the intention shall also be restated as one of the reasons.”
It must be appreciated that although that jurisdiction exists, it will only be exercised in the most obvious circumstances. It cannot and ought not to be exercised to create uncertainty in the law or to leisurely undermine the salutary doctrine of stare decisis. When a principle of law has been laid down by the court based on an established state of facts, it leads to stability to regard it as a precedent for the way future cases, where facts are substantially similar and where the very point is again in controversy, are decided. The doctrine is in a sense founded on judicial policy of a public nature, But that policy recognises a balance between the need for certainty and the ends of justice to be dispensed particularly by the final court of the land. Therefore it also demands that the Supreme Court should not hesitate to depart from its previous decision in appropriate circumstances: See Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 193. Such circumstances may be seen to arise if the party calling upon the Supreme Court to overrule its previous decision is demonstrably able to show (a) that it is manifestly wrong and there is a real likelihood of it constituting a vehicle for perpetuating injustice by a rigid adherence to it: see Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 SC 1, or (b) that it was given per incuriam: see Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17; Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (Pt. 262) 641; or (c) that it hinders the proper development of the law in which a broad issue of public policy was involved: see Jones v. Secretary of State (1972) 1 All ER145 at 149 per Lord Reid who introduced a consideration of public policy, cited in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 332. The decisions of this court in lmoloame and Fakuade, judging from the facts of those cases and the various pronouncements made in the decisions, are not in conflict with Olaniyan and Shitta-Bey but indeed recognise the principles and the merit of these cases. The latter cases, incidentally, fit into the submission (2) made by Mr. Ukala but the present case does not. It is my view that the appellant has not made out a case for overruling Imoloame, Fakuade and Iserhienrhien.
Section 4(1) of the Act which I have earlier reproduced does no more than authorise the corporation to approve conditions of service as it considers necessary, contrary to the argument of Mr. Ukala that that section provides the force of law behind exhibit to give it the “status of statutory, provisions.” The term “statutory provisions” means what it says, namely the provisions of a statute or, by extension, of a statutory instrument. However, whatever the appellant may consider exhibit B to portray, the respondent did not on this occasion act outside its terms. Clause 52 under which it terminated the appointment of the appellant reads:
“52. RESIGNATION AND TERMINATION OF APPOINTMENT
(a) Any employee shall be free at any time, either with or without stating any reason therefore, to resign his appointment with the Corporation upon giving due notice to that effect. The Corporation shall likewise have a reciprocal right to terminate the employee’s appointment upon giving him due notice. Due notice for the purpose of this paragraph is as follows:-
Category D – 3 months
Categories A, B, C – 1 month
(b) In lieu of due notice the employee or the Corporation may resign or terminate an employee’s appointment respectively by paying to the other the amount of basic salary that would have been earned during the period of notice.”
The appellant in his testimony admitted that he could resign his appointment with the respondent on giving a month’s notice or paying salary in lieu and vice versa if his appointment was terminated. He also agreed that he belonged to category C .In his words:
“The NNPC cannot compel me to work for it if I tendered any resignation or paid to it salary in lieu of notice. I am not a management staff of the NNPC. I belong to category C as contained in exhibit ‘B’ page 2 clause 6. By virtue of clause 52(a) at page 17 of exhibit ‘B’ I require a month’s notice in the event of termination of my appointment.”
I cannot therefore understand why the appellant has insisted he deserved a better treatment than the common law one his contract of service earmarked for him; and by his own device he now imports ‘statutory flavour’ into his employment in order to be able to request this court to overrule its decisions on common law master and servant relationship and to seek a relief, which, obviously, he would not be entitled to. It is at this stage I shall proceed to consider issues 1 and 3.
Issue 1
Under issue 1, the question is whether the court below was right in denouncing the learned trial Judge’s speculation as to the reason the respondent terminated the appellant’s appointment when he said it was because of an alleged fraud which the appellant had previously been suspected or accused of. No such reason was given in the letter of termination, exhibit H. Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. So long as he acts within the terms of the employment, his motive for doing so is irrelevant. See this court’s decision in Commissioner for Works, Benue State v. Devcon LTd. (1988) 3 NWLR (Pt. 83) 407 at 423. In any event, in case of breach, the employee’s remedy lies in damages calculated on the basis of what he would have earned for the period of notice agreed for ending the employment: see Western Nigeria Development Corporation v. Abimbola (1966) 1 All NLR 159 at 160-161 also reported (1966) NMLR 381; Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt. 2) 870 at 871; Chukwuma v. Shell Petroleum Dev. Co. of Nig. Ltd. (1993) 4 NWLR (Pt. 289) 512 at 538 which learned counsel for the appellant, Mr. Nwosu, rightly relied on. I have no doubt that the court below justifiably corrected the learned trial Judge’s error.
Issue 3
Issue 3 is whether this is not a proper case where declaratory reliefs ought to be granted. The declaratory relief in this case which obviously the appellant has in mind is the declaration that the termination of his appointment by letter, exhibit H, is unlawful, null and void. In the said letter the appellant was told that apart from surrendering corporation’s property in his care, he should pay up the balance of any loan taken from the corporation. He was further told that the General Manager, Finance and Accounts was being instructed to pay him a month’s salary in lieu of notice. That was clearly a legitimate way of terminating the employment by which salary in lieu of notice was to be paid. But the appellant now submits that the court has wide powers and discretion to make declarations of right even in a case of mere master and servant relationship – i.e., an employment with no statutory flavour and so by that be able to declare that the appellant’s employment still subsisted. He has placed reliance on Ewarami v.African Continental Bank Ltd. (1978) 4 SC 99; (1978) 11 NSCC 269.
It seems to me, with profound respect to learned counsel for the appellant, that the decision of this court in Ewarami’s case has been misunderstood. This is so because, although in that case the principle in Hanson v. Radcliffe U.D.C. (1922) 2 Ch. 490 as to the wide discretion of a court to make a declaration to define the rights of two parties should such a question arise was affirmed, the facts in Ewarami were peculiar and do not fit into the present case at all. There, Ewarami who was employed as an archivist by the African Continental Bank Limited was subpoenaed as a witness by a defendant against whom a suit was instituted by his employer. Before the date he was to have appeared in court in Benin, his employer posted him away to Jos. The said defendant successfully moved the court to restrain the employer from effecting the transfer until the suit was disposed of. After the injunctive order, Ewarami took ill and was placed on sick leave by a doctor. Although he subsequently testified, no formal discharge from appearing had been made by the court. So he stayed away from work on the strength of the medical sick leave certificates he was given. But the Benin City branch of the bank where he was working at the time of the transfer refused to pay his salary.
He then instructed a solicitor to write a letter to his employer. It was in the reply to the solicitor’s letter that Ewarami learnt for the first time that an earlier letter had been issued to him by his employer instructing him again to proceed on transfer to Jos. It was thought, as averred in the statement of defence, he had been grossly insubordinate to have refused to obey the latest letter of transfer, which then led to his dismissal. The only evidence before the court in a suit for wrongful dismissal was that of Ewarami as plaintiff. He claimed not to have received that letter which again instructed transfer. He therefore claimed for a declaration that the purported dismissal was wrongful, illegal and unconstitutional.
The defendant, African Continental Bank Limited (ACB), offered no evidence. The case at the trial court turned on the narrow issue whether a case for dismissal had been made out upon the uncontradicted evidence that the letter of transfer was not received by the plaintiff which would mean that his dismissal was done upon a mistake of facts. The trial court accepted the plaintiff’s case that the letter was not received by him and held that: “His purported dismissal from the employment of the defendant company is null and void” and declared that he was still in the employment of the defendant company.
An appeal was lodged to this court by the ACB. On behalf of the appellant it was argued that the trial court having held that the parties were governed by the common law, erred in granting the declaration. He further contended that declaratory judgments were unknown to contracts governed by the common law and that the only remedy available to a servant against his master for wrongful dismissal was an action for damages. It was part of this argument as to declaratory judgments that led this court to express opinion as to the almost limitless discretionary power of the court to make a declaration as to the rights of two parties, citing among others Radcliffe U.D.C. case. In its reasons for judgment (the appeal having been dismissed peremptorily) reported as African Continental Bank Ltd. v. Ewarami (supra), this court observed and held inter alia excluding aspects about the said discretionary power – as follows at p.274:
“There was no material before the court from which it could hold that the respondent had been insubordinate by failing to proceed on transfer to Jos pursuant to a letter of 3rd August, 1973 from the appellants directing that he should do so.
We take the view that the onus of establishing the existence and service of this letter was on the appellants and that they had failed to do so.
Given the above state of affairs, we are satisfied that the learned trial Judge had an unfettered judicial discretion to make the order the subject of this appeal.
………………
The order made by the learned Judge was one, which in our view, he could make having regard to the evidence before him.
As the lower court did not rule that a case for unlawful dismissal had been made out, we would refrain from expressing an opinion on whether at common law only an action for damages would lie.
We were in no doubt that this appeal lacked merit and dismissed it. For the avoidance of doubt, we hold that the learned trial Judge was right in deciding as he did, and that the respondent must be deemed to have been still in the employment of the appellants and thus entitled to his normal salaries and/or benefits until 13th December, 1977 when we dismissed this appeal and reserved our reasons till a later date.”
It is plain to me that the decision in Ewarami’s case in no way helps the appellant in the present case. The decision neither altered nor extended the common law position in the matter of master and servant relationship. The case was decided purely on a narrow issue which arose from peculiar facts presented in a strait-jacket.
The respondent in the present case acted strictly within the terms of employment as contained in exhibit B to terminate the appellant’s appointment. A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370; Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390 at 405; Okomu Oil Palm Co. Ltd. v. Iserhienrhien (supra) at 673-674. In the same vein, the court is not entitled to look outside the contract of service as to the terms and conditions. These must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be. It is the best and only way of deciding the rights of the parties under the contract: see Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149 at 162; International Drilling Company Ltd. v. Ajijala (1976) 2 SC 115 at 127.
All three issues raised by the appellant for the determination of this appeal are resolved by me against him. This was the inevitable result this court contemplated after hearing, oral argument from the learned Senior Advocate for the appellant; and as we had taken due account of the submissions in the respondent’s brief of argument, we did not call on learned counsel for the respondent for his oral argument. I am satisfied that this appeal is without any merit and accordingly I dismiss it with N10,000.00 costs to the respondent.
SC.162/1996