MR. Adeleke Joseph Babatunde V. The Governing Council, Federal Polytechnic, Ede & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Federal High Court, Osogbo, Division contained in the Judgment delivered on the 25th day of May, 2011. The Appellant formulated two issues for the appeal; Respondent also on his part, also donated 2 issues.

The Appellant’s issues are as follows:-

1.) Whether it was established before the lower court that the appellant’s employment enjoyed statutory flavour? (Ground one)

(2) Whether the Appellant’s employment was properly terminated within the terms of his employment Grounds two and three.

The Respondent’s Issues are as follows:-

(1) Whether the Appellant’s employment as an unconfirmed probationary staff enjoyed statutory flavour (Ground one)

(2) Whether the Appellant proved his case that the termination of his employment is ultra vires; wrongful, unfair and malicious? (Grounds two and three)

A perusal of the two issues formulated by the respective Learned Counsel for the parties no doubt show that they are similar except that Issue Number 2 of the Appellant is broader and more encompassing than the Respondent’s issue two that is limited in scope by its conclusive phraseology on employment of probationary and unconfirmed nature and the applicability or otherwise of the statutory flavour doctrine. Be that as it may, I shall adopt the Appellant’s two issues, even though it is very clear that Issue No 2 alone would determine this appeal.

Whether it was established at the trial court that the Appellant’s employment enjoyed statutory flavour learned counsel argued that it had been settled by the pleadings of the parties that the Public Service Rules and the Federal Polytechnic Act applied and governed the employment relationship of the parties, to which the letter of appointment was made subject. Counsel referred to paragraph 5 of the Statement of Claim which was admitted in paragraph 1 of the Statement of Defence.

Furthermore, that by paragraph 8 of the Statement of Defence, the 1st and 2nd Defendants had averred that the termination of employment of the plaintiff was in line with his letter of appointment and the Federal Public Service Rules. That the Appellant’s evidence on oath, per paragraph 6 of his statement on oath was a confirmation of his employment being subject to the Federal Public Service Rules, the Federal Polytechnic Act and the terms of the letter of appointment. (see page 21 of the record).

That the only witness of the plaintiff testified to the same effect of these fact of the applicability of the Federal Public Service Rules and the Federal Polytechnic Act. Page 38 Record of Appeal, par.1

That the Respondent’s lone witness at page 109 of the records testified to the same effect when he stated thus:

“I agree that the plaintiff’s employment is governed by the Public Service Rules” and I have seen Exhibit C. It was dated 18-4-2008. It was a letter of interdiction pursuant to Rule 030404 of Federal Public Service Rules”