Mr. W. P. Demshemino V. Council Federal Polytechnic Mubi & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR ALKALI ABBA J.C.A. (Delivering the Leading Judgment)

INTRODUCTION BY THE APPELLANT:

This is an appeal against the Judgment of Hon. Justice S. M. Shuaibu of Federal High Court, sitting in Yola delivered on the 28th June, 2010.

The Plaintiff now Appellant has by originating summons dated 14th October, 2009 instituted an action against the Defendants now Respondents seeking the relief’s as contained in the records of proceedings.

The Respondents filed a counter affidavit to the originating summons and thereafter written addresses were filed and exchanged by counsel.

In a considered Judgment delivered on 28th of June 2010, the learned trial Judge dismissed the case of the Appellant with a cost of N10, 000.00. It is against the said Judgment that the Appellant herein has filed a Notice of Appeal dated 12th July, 2010 containing 5 grounds of appeal.

THE APPELLANT STATEMENT OF FACTS:

The Appellant was until 2/10/2009 a staff and Chief Accountant of Federal Polytechnic, Mubi when his appointment thereof was summarily terminated by the 1st Respondent vide a letter dated 2nd October, 2009 and signed by one P. U. Ndainamu, Deputy Registrar (establishment) on the grounds that his services “are no longer required”

Prior to this, the Appellant had joined the services of Federal Polytechnic, Mubi on 12/3/1991 as Senior Accountant and had enjoyed a robust lease of life as a staff culminating in the last promotion as Chief Accountant on 14/12/2005.

The Affidavit evidence is also to the effect that the Appellant was on 2/7/2009 requested vide Exhibit D to appear before a committee termed “ad-hoc committee on illegal photocopying of payment voucher” which he did. He was again written on 13/7/2009 to make written representation to the said committee; a request that the Appellant dutifully complied with, see Exhibit F. thereafter the Appellant did not hear anything again until he was served with a letter dated 2/10/2009 terminating his appointment. It is instructive to note that the Appellant being a public servant by virtue of the Federal Polytechnic Act enjoys a pensionable employment and would have been due for retirement on 19/4/2016 when he would be 60 years old but for the summary termination of his appointment by the 1st Respondent.

It is also not a disputed fact that as at the time of the termination of the appointment of the Appellant, the Appellant was on a monthly salary of N197, 366.06 and would have if not for the termination earned a total of N15, 394,55.268 as salary by 19/4/2016 assuming the Appellant earns the said N197,366.06 continuously for the said period.

APPELLANT ISSUES FOR DETERMINATION:

1. Whether the Respondents can lawfully terminate the employment of the Appellant as the Chief Accountant of Federal Polytechnic, Mubi without complying with the provisions of Section 17 (3) of the Federal Polytechnic Act, 2004 when the Respondent stated that the Appellants services are no longer required relying on provisions of clauses 2 (e) and (f) of the letter of appointment of the Appellant. Not (1) Section 17(3) Federal Polytechnic Act, 2004 not applicable. (2) Clauses 2(e) and (f) of his letter of appointment.
2. Whether the learned trial judge was right when he held that the Federal Polytechnic Act which stipulated condition under which the Respondent can lawfully terminate the employment of the Appellant cannot be read into the provisions of the letter of appointment of the Appellant or.

Whether the provisions of the letter of appointment of the Appellant supersedes the provisions of Section 17 (3) of the Federal Polytechnic Act relating to the circumstances under which the Respondents can lawfully terminate the employment of the Appellant.

3. Whether in the circumstances of this case, the learned trial judge was right to have applied the principle of law in Katto V. Central Bank of Nigeria in support of his decision while refusing to apply the principle in Igwilo V. Central Bank of Nigeria.
4. Whether it was proper for the judge to have failed to make an award of damages in the alternative despite having held that the termination of the appointment of the Appellant was lawful. No damages accrue between 2/10/2005 to 2016 as computed.

The letter of appointment and provision of Section 17(3) of Act are parallel and issue of one superseding the other does not arise.