National Electric Power Authority V. Joseph Ango (2001)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the Federal High Court of Justice sitting in Kaduna, the plaintiff instituted an action against the defendant claiming as follows:-

“(1) A declaration that the dismissal of the plaintiff by the defendant as contained in the letter reference No. 00227/ 2. 1/56/96 and dated 6/11/96 is null and void, ultra vires and of no effect.

(2) A declaration that the plaintiff was not given a fair hearing before his purported dismissal.

(3) A declaration that the plaintiff is still in the services of the defendant.

(4) An order directing the defendant to pay to the plaintiff all his arrears of salaries and allowances.

(5) An order directing the defendant to reinstate the plaintiff in its employment.

(6) A perpetual injunction restraining the defendant from dismissing, terminating or in any way tampering with the plaintiffs right to work with the defendant until he attains his retirement age.

(7) In the alternative to paragraphs 5 and 6 above:

(a) A declaration that the plaintiff is entitled to his pension and gratuity calculated up to the time the plaintiff shall have been due for retirement.

(b) A declaration that the plaintiff is entitled to his housing allowance and leave grant until he attains the age of retirement.

(c) The sum of N1,629,020.00 being special and general damages for unlawful dismissal.”

Pleadings were filed and exchanged. The plaintiff testified as the only witness in support of his claim. The defendant also called one witness in support of his defence. Thereafter, counsel addressed the court, before the learned trial Judge, in his reserved and considered judgment, acceded to the plaintiff’s claims. The defendant was unhappy with the decision and has appealed to this court on four original, and with leave of this court, five additional grounds of appeal.

Learned counsel, on behalf of the respective parties prepared, filed and served briefs of argument. At the hearing of the appeal, brief of argument prepared for the defendant (hereinafter referred to as appellant) by Oguneso was adopted and relied upon by A. Oyeyipo representing the appellant. Also at the hearing, the brief of argument of the plaintiff (hereinafter referred to as respondent) written by Asogwa was adopted on behalf of the respondent by Mr. Egwueme. Neither counsel elucidated on the briefs. Mr. Oyeyipo for appellant refused to be drawn into discussion of the purported notice of preliminary objection contained in the respondent’s brief. Mr. Egwueme also told the court that his instruction to hold Mr. Asogwa’s brief is limited to merely adopting the respondent’s brief and nothing more.

I wish to observe for the benefit of Mr. Egwueme and the new wigs being churned from the Nigerian Law School in recent years that, once a counsel accepts to hold his learned friend’s brief, he had by his consent accepted full responsibility for the matter. He has no right to pick and choose the extent of his instruction. But, if he is incapable of assuming full responsibility for the case, either through lack of learning, experience or competence or whatever reason, the only option opens to him was to decline the brief. It is most unbecoming of counsel to accept the brief only to start shuffling in court to the consternation and embarrassment of the court, legal practitioners and the litigants present in court.

These issues were formulated in the appellant’s brief as calling for determination:-

“(1) What is the nature of the contract between the parties?

(2) Whether the defendant complied with its regulations before dismissing the plaintiff from its employment and whether the plaintiff’s dismissal is proper?

(3) Whether having regard to the nature of the contract between the parties and the facts before the court, the learned trial Judge was right in granting the reliefs sought?

(4) Whether from the facts before the court it was open to the learned trial Judge to have granted all the reliefs sought when the reliefs were sought in the alternative?

(5) Whether the learned trial Judge properly evaluated the case before him?”

On the other hand, the respondent identified the following five issues as calling for determination:-

“(1) Whether the respondent was given a fair hearing before his dismissal and whether his dismissal was proper?

(2) Whether the contract of employment between appellant and respondent is that of mere master and servant relationship under the common law?

(3) Whether the trial court was wrong in granting the reliefs sought?

(4) Whether the trial court was wrong in granting all the reliefs sought and if so whether this can vitiate the trial?

(5) Whether the trial court properly evaluated the facts before him?”

The respondent’s formulation is a mere variant of the appellant’s issues. All the respondent achieved, is to rearrange the order of arrangement of the identification of issues in the appellant’s brief in his own brief of argument thereby, creating the additional task of matching the various identification of issues in both briefs of argument. I shall deal with the issues in the order they are set out in the appellant’s brief.

Before proceeding to the consideration of issues in both briefs, I propose to examine the so-called preliminary objection allegedly taken by the respondent. It is an objection to two of the appellant’s nine grounds of appeal. The preliminary objection is raised against grounds 3 and 8 of the grounds of appeal on the ground that they are Christian grounds of law but are without the particulars of the error or errors of law complained about contrary to the provisions of Order 3 rule 2(2) of the Court of Appeal Rules Cap. 62 of the Laws of the Federation of Nigeria, 1990.

A respondent, intending to rely on preliminary objection to the hearing of the appeal is required to give the appellant three clear days notice before the hearing setting forth the grounds of the objection and shall file such notice. There is nothing on record showing that the notice, required under Order 3 rule 15(1) of the Court of Appeal Rules Cap. 62 was filed. In the absence of such notice, the alleged notice of preliminary objection canvassed in the respondent’s brief cannot be taken. It is therefore incompetent and is ignored or discountenanced by me.

Furthermore, a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. A preliminary objection should be capable, if successfully taken, of putting an end to the hearing of the appeal. An objection to qualify as preliminary objection should require serious argument and consideration on a point of law which if decided, one way or the other, is going to be decisive of litigation. In other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which if it succeeds, would put an end to the appeal.

I wish to observe that neither counsel in their respective briefs, related the issues framed to any of the grounds of appeal. This is not good enough. A ground or a number of grounds of appeal should be related to issues. When the issue is successfully canvassed and resolved in favour of the appellant the ground or grounds of appeal related thereto, are found successful and are allowed otherwise they fail and are dismissed. In the present circumstance, one finds it impossible to determine successful or unsuccessful grounds of appeal on resolution of a particular issue. I believe that problems such as these should not continue to linger on more than two decades after the introduction of brief writing in our procedure and practice.

In dealing with appellant’s issue 1, learned counsel for appellant, in the appellant’s brief, conceded that the respondent was an employee of the appellant which is a statutory body. It was further conceded that the defendant’s condition of service, Exhibit H regulates the relationship between the parties. Learned counsel for appellant argued that where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavour notwithstanding that one of the parties is a creation of statute. See Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt.291) 47, 63. Learned counsel then read Chapter 13 of Exhibit H and contended that it is obvious from the reading that the contract between the parties is determinable at the instance of either party. He then submitted that the contract of employment was a mere master and servant relationship. He argued that the contract was neither of a special character nor one protected by statute.

In this connection, it was contended for the respondent that the appellant being a creation of a statute, respondent’s appointment was not one of master and servant relationship but one in pursuance of the appellant’s Enabling Act. Learned counsel for respondent submitted that respondent’s appointment has constitutional force. He cited Olaniyan & others v. University of Lagos (1985) 2 NWLR (Pt.9) 599, 617-618.

I agree with the learned counsel for the appellant that to ascertain the character of an appointment and the status of an employee, it is pertinent to examine the legal character or nature of the contract. But I disagree with his proposition of law that once the contract of service is determinable by agreement of the parties simpliciter, there is no question of the contract having statutory flavour. It is not the position of the law that once a contract of employment is terminable by notice, the question of statutory flavour is jettisoned. This can be done if the party terminating the contract did so within the requisite provisions of the enactment or contract he is acting upon. But if in exercising his power of removal he failed to act in accordance with the provisions of the regulation, rules or statute(s) governing the removal or appointment, such removal would be ineffectual. It cannot be valid. See the test for determining whether an employment is one with a statutory flavour or not laid down in Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (supra;) (1995) 13 LRCN 905, 921. Supreme Court per Karibi-Whyte at page 63 said:-

“However, where the condition for appointment or determination of the contract is governed by the preconditions of an enabling statute, so that a valid determination of an appointment is predicated on satisfying such statutory provisions, this is a contract with statutory flavour… The contract is determinable not by the parries, but only by statutory preconditions governing its determination”

(Italics mine)

See Pc. Imoloame v. West African Examination Council (1992) 9 NWLR (Pt.265) 303; Olaniyan v. University of Lagos (1985) 2 NWLR (pt.9) 599, 617-618; M. Busari v. Edo State Civil Service Commission & Anor (1999) 4 NWLR (Pt.599) 365.

Learned counsel for the appellant relied upon chapter 13 of Exhibit H to contend that the contract of service, being terminable at the instance or option of either party is, therefore, a mere master and servant relationship. Chapter 13 of Exhibit H cited in the appellant’s brief read as follows:-

“13.00 Retirement after attaining the age of 45 years. All established employees shall, on three months notice, at any time after attaining the age of 45 years:

(i) have option to retire; or

(ii) be liable to be called upon by the authority to retire.”

The provisions do not avail the appellant. It is not a situation whereby the parties can terminate the contract of service with or without reason at any time provided notice is given. The power under Chapter 13 is not exercisable, by either party, until the respondent had attained the age of 45. There is no evidence on the record showing that he had attained that age.

It is common ground that the appellant is a creation of statute. It is created under National Electric Power Authority Act, Cap. 256 of the Laws of the Federation of Nigeria, 1990; a statute made or deemed to be enacted by the National Assembly, pursuant to section 4(2) of the Constitution of the Federal Republic of Nigeria, 1979. The appellant pursuant of its power under section 4 of the Act, Cap. 256 employed other staff other than the General Manager and Secretary whose appointments can be made under section 3 thereof. Section 4(1) reads as follows:-

4. The Board shall, subject to the provisions of this Act, have power:-

(a) to appoint such other officers and servants of the Authority as it may determine;

(b) …;

(c)…

And subject as aforesaid, the transitory and supplemental provisions relating to officers and servants of the Authority set out in Part III of the Schedule to this Act shall apply accordingly.”

The appellant derived its power to make Exhibit H from paragraph 9 of Part III of the Schedule. The power so conferred by the Schedule is in relation to the appointment, promotion and discipline of the officers and servants of the Authority. I, therefore, agree that the respondent’s employment did not only have statutory but also a constitutional force beyond that contemplated under the common law contract of service of master and servant which can be terminated by the master at will. An employer of an employee whose appointment has statutory flavour has no right to terminate his appointment at will because he does not hold the appointment at the pleasure of such an employer. To determine the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held ineffectual or invalid. To further reinforce his status, section 1(4) of the National Electric Power Authority Act confers on him the protection of Public Officers Protection Act Cap 379 of the Laws of the Federation of Nigeria, 1990. Also, the respondent is conferred with the status of membership of the public service of the Federation by the definition of the words “public service of the Federation” contained in S. 277 of the Constitution of the Federal Republic of Nigeria, 1979. He comes under (c) and (d) of that definition. The definition reads:-

“public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:

(a)…

(c)…

Member of staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly;

17. staff of any statutory corporation established by an Act of the National Assembly.”

I therefore agree with the submission of the learned counsel for the respondent that the respondent as Auditor of National Electric Power Authority, is a public officer. And that unlike the relationship of master and servant under the common law where the servant holds his employment at will or pleasure of the master, which appointment is terminable, with or without reason, a public officer does not hold his office at the mercy of the employer. The employer has no right to terminate his appointment without first complying with condition set down for his removal under the contract of service. This differentiates the contract of employment under the public service from one under the common law. It is, unlike an appointment of a mere master and servant relationship, a contract of a special character or a protected contract.

I am strengthened in this view by the decision of the Supreme Court in Olaniyan v. University of Lagos (supra), cited in the respondent’s brief. The Supreme Court said at p. 654 of the report thus:-

”The appellants’ cause of action, according to the writ of summons, arose on 30th December, 1980. The 1979 Constitution of the Federal Republic of Nigeria had then of the respondent and was duly crossed-examined before the ad-hoc committee. The ad-hoc committee called other witnesses behind the respondent’s back. The committee completed its work and compiled a report, which was tendered and admitted as Exhibit M, which formed the basis of the respondent’s removal from office.

I agree with the learned counsel for the appellant that the conduct of the investigating officer cannot vitiate the proceedings resulting in respondent’s dismissal. He merely collated facts to assess and determine the merit or extent of the allegation against the respondent. Also, his findings did not form the basis for the dismissal of the respondent from office. His, was purely investigatory or exploratory. See Baba v. NCATC (supra). It did not determine the rights and obligations of the respondent.

I cannot subscribe to the submission of the learned counsel for appellant that hearing of other witnesses who gave damaging testimony against the respondent though irregularly, nevertheless, it was not sufficient to destroy the legal effect of the proceedings. The proceedings of the ad-hoc committee was neither investigatory nor exploratory as postulated by learned counsel for appellant. It was the basis of determination of the civil rights and obligations of the respondent. The respondent’s removal from office as auditor was predicated on the report of the ad-hoc disciplinary committee, a fact rightly conceded in the appellant’s brief when its learned counsel stated thus:-

Committee completed its work and based on its findings, the plaintiff was dismissed …

(Italics mine)

Furthermore, this appeal is distinguishable from the case of Abdullahi Baba v. NCATC (supra) in two respects. In the case cited, the training centre did not base its decision to dispense with the services of appellant therein on the report of Afini Panel. The training centre after receiving and studying the report, queried the appellant on specific allegations. It was after consideration of his answer to those allegations that their decision to terminate his appointment was taken. The appellant in the instant appeal did not issue the respondent with a query detailing out specific allegations for him to answer, consider the answer to its allegations and then dismiss him. The report of the ad-hoc disciplinary committee was therefore, the direct and not a remote cause of his dismissal. The second distinguishing factor is that the appellant’s complaint in the case of Abdullahi Saba v. Nigeria Civil Aviation Training Centre (supra) was that he was not afforded opportunity to cross-examine the petitioner which was held not to amount to a denial of principle of fair hearing, or rules of natural justice. Rather, the respondent’s case herein was that he was not allowed to be present when “other witnesses” testified against him contrary to the express provisions of paragraph 34.01(3) of appellant’s condition of service, Exhibit H. It provides that an employee should be present if any witness is called to testify in a disciplinary proceeding involving allegation of serious misconduct against him. It reads:-

“3 if any witnesses are called to give evidence, the employee is entitled to be present and to put question(s) to the witnesses.”

That was not done in this case as the respondent was for most part of the time outside the room where the proceedings were being conducted.

The decision of the learned trial Judge was principally influenced by his findings at pages 51, 52, 53 and 54 of the record of appeal. The substances of the findings are that:-

(i) Several witnesses who gave damaging evidence against the respondent testified in his absence.

(ii) The Disciplinary Ad-Hoc Committee chose the time and hour to call the respondent into the room of trial.

(iii) In deciding the case against the respondent, the Disciplinary Ad-Hoc Committee took into account the testimony by all the witnesses including those of witnesses he had no opportunity in knowing what they said or opportunity of challenging by way of cross-examination.

iv) The ad-hoc committee failed to follow the express provisions of the appellant’s condition of service that on conduct of disciplinary proceedings for serious misconduct, the employee concerned should not only be present but should also be entitled to put question to witnesses.”

The appellant is not disputing these damaging findings which are, in any case, not appealed against. They therefore subsist. As I observed earlier, the appellant is not contesting these findings but its contention is that they are not enough to vitiate the proceedings of the ad-hoc committee it set up to try the respondent.

It, therefore, remains to examine the authorities to determine the adequacies of the infractions. It is agreed that some latitude or laxity must be permitted when persons not versed in the intricasies or technicalities of law are empanelled to deal with issues of law but it is not only in law but also morally wrong to shut out the person accused from the room of trial and later use the material obtained behind his back to find him liable. Fair hearing, even before an administrative or domestic tribunal, was held by the Supreme Court in Y.A. Garba & ors. v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 , 617 and 618 to imply the rights of the respondent to know what and what are being urged against him, what evidence or statements had been made concerning him and is entitled to opportunity to correct or challenge them, meaning that the tribunal must not receive evidence behind his back. See also Olatunbosun v. NISER (1988) 3 NWLR (Pt.80) 25, cited in the appellant’s brief. At page 52 of the report, the Supreme Court said that:-

“The right to a fair hearing will only arise where there is an allegation of misconduct which may result and infact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension, in such a case, it is equally vitally important that the appellant be given ample opportunity to defend his conduct.”

The law is settled that the rules of natural justice demand that where a person is accused of a crime or an offence committed, he must be given opportunity to defend himself and thus given fair hearing – audi alteram partem. See Professor Onwumechili v. Akintemi (1985) 3 NWLR (Pt.l3) 504. And in Adigun v. Attorney-General of Oyo State (1987) 2 NWLR (Pt.56) 197, (1987) 3 SC 250,309 the Supreme Court said:-

“If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared as no decision.”

See General Medical Council v. Spackman (1943) A.C. 627. But the requirement that a person should be offered ample opportunity to defend himself after being charged need not necessarily be in the form of trial, involving examination-in-chief, cross-examination and probably re-examination, only a fair opportunity to rebut or contradict or correct what is being alleged against him. The principles of natural justice may be satisfied if the person accused is allowed to correct or rebut what is prejudicial to him in writing. See Adedeji v. Police Service Commission (1968) NMLR 102 which was followed in Professor Onwumechili & anor. v. Akintemi & ors. (supra). The appellant did not limit itself to a written explanation. It opted for a trial involving examination and cross-examination, the proceedings of which violated the principles of natural justice and section 33(1) of the 1979 Constitution. The decision must be declared as null and void. Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 reads:-

“(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

Clearly the provisions of section 33(1) applied the rules of fair hearing to all proceedings by a court or other tribunal established by law. Such a panel, committee, tribunal shall in all proceedings conducted by them observe the principles of natural justice or rules of fair hearing where their decision would be such as to determine civil rights and obligations otherwise their findings may be struck out or declared null and void. The Disciplinary Ad-Hoc Committee that tried the respondent was established in furtherance of paragraph 9 of Part III of the Schedule to National Electric Power Authority Act Cap 256.

I answer appellant’s issue 2 in the negative. The ground or grounds of appeal from which it is framed fail and are dismissed.

This takes me to appellant’s issue 3. It seems to me that in this issue as the learned counsel for respondent rightly contended, in the respondent’s brief that the appellant is, in a way, attempting to reargue its issue 1.

Learned counsel for appellant, in this connection, contended that the learned trial Judge in ordering reinstatement of the respondent placed reliance on the cases Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162. Learned counsel then submitted that the learned trial Judge erred because the Supreme Court was in those two cases interpreting the provisions of s. 17(1) of the University of Lagos Act 1967 as it affects the appointments of the appellants’ in those cases. Learned counsel for appellant further submitted that the respondent’s appointment is not governed by any statute as he had argued earlier on in the appellant’s brief that the relationship was one of master and servant notwithstanding that the appellant was a statutory body. He referred to the cases of lmoloame v. West Africa Examination Council (1992) 9 NWLR (Pt.265) 303; WR & PC Ltd. v. Onwo (1999) 12 NWLR (Pt.630) 312, 328-329.

Learned counsel for respondent submitted that the power of the appellant to engage the services of the respondent arose out of statute, section 4 of the National Electric Power Authority Act Cap. 256 and not out of common law.

I agree with the learned counsel for respondent that the respondent’s appointment has its root from a statutory provision. It has its origin in section 4 of the National Electric Power Authority Act Cap 256, an Act of the National Assembly and for that reason, it is an employment with a statutory flavour like those of the appellants in the cases of Olaniyan v. University of Lagos (supra) and Eperokun v. University of Lagos (supra). The contract between both parties is not mere master and servant relationship. It is a relationship which is over and above a master and servant relationship. I agree with the submission of the learned counsel for appellant that the decision in the cases of Olaniyan (supra) and Eperokun (supra) turned on the provisions of section 17(1) of the University of Lagos Act 1967 and not on the various appellants’ letters of appointment. Section 17(1) deals with the procedure to be adopted in exercising disciplinary power of the University where an officer irrespective of his status is accused of misconduct. The same or similar procedure has been provided for discipline of staff of the appellant in paragraph 34.01 (3) of the appellant’s condition of service contained in Exhibit H. Exhibit H governs or guides the conduct of affairs between the appellant and its staff. It is a subsidiary legislation made in pursuance of paragraph 9 of Part III of the schedule to the National Electric Power Authority Act Cap 256 which reads as follows:-

“9. The Board may with the approval of the National Council of Ministers by bye-laws make provisions for matters connected with the foregoing, and also in relation to the appointment, promotion and discipline of the officers and servants of the Authority.”

(Italics mine)

Being a provision contained in a schedule in no manner derogates from its force or efficacy. It is as efficacious as the provisions of section 4 of the Act which brought the schedule into force. The schedule to an enactment forms an integral part of the legislation. In other words, a schedule to an Act of Parliament is as much an enactment as any other part of such an Act. It is not a subsidiary legislation to the Act. See Attorney-General v. Lamplough (1878) 3 Ex D 214, 229; Board of Customs & Excise v. Alhaji Ibrahim Barau (1982) 10 SC 48,128,172 and 7up Bottling Co. v. Abiola & Sons (1996) 7 NWLR (Pt.463) 714, 732 and Ibidapo v. Lufthansa Airline (1997) 4 NWLR (Pt.498) 124, 162.

The schedule was made part of the enactment by the provisions of section 4 of the Act Cap 256. The conditions of service, Exhibit H, made pursuant to the Act has force of a legislation, though a subsidiary one. A failure to comply with the provisions of Exhibit H is equally as fatal as not complying with section 17(1) of the University of Lagos Act, 1967. The failure of the appellant, in the instant appeal, to adhere to the provisions of paragraph 34.01(3) of the appellant’s condition of service, Exhibit H, is fatal notwithstanding that the latter is a subsidiary legislation. The consequences are the same and are not different in any manner whatsoever. The cases of Imoloame v. WAEC (supra); WR & PC Ltd v. Onwo and Chukwuma v. Shell (supra) which are cited in the appellant’s brief are different on their peculiar circumstances.

I agree with the learned counsel for the respondent, however, that the list of instances where the court can order a reinstatement is not exhaustive, what the authorities have decided is that where the contract between the parties creates a special relationship over one of a mere master and servant known to common law, then, a reinstatement may be decreed. A contract with a statutory flavour is just one of instances of special circumstances. See the cases of Ben Chukwuma v. Shell Petroleum Development Company (1993) 4 NWLR (Pt.289) 512, (1993) 5 SCNJ 1,22-23 and Olatunbosun v. Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (Pt.80) 25, 43. The Supreme Court per Oputa J.S.C. recognised other circumstances where dismissal can be declared null and void. At page 43, learned justice said:-

” … the appellant not being a staff of the University of Ibadan cannot derive his security of service from s. 9 of the University of Ibadan Act. Rather Exhibit 3H invested him with a status similar to professors of corresponding grade in the University itself. If a dock worker, as in Vine v. National Dock Labour Board (1956) 3 All E.R. 944, (1957) AC 500; a legal adviser in the Ministry of Justice as in Bashir Alade Shitta-Bey v. The Federal Public Service Commission (1981) 1 SC 40; University professors in Olaniyan & Ors v. University of Lagos (1985) 2 NWLR (Pt.9) 599 all acquired special status over and above the ordinary contractual relationship of master and servant … I see no reason why a professor like the appellant should be treated differently simply because he was assigned duties in the Nigerian Institute of Social and Economic Research.

Exhibit 3H allowed him to enjoy the status of a professor and the rules of natural justice gave him a right to a fair hearing if he is to be removed for misconduct. My answer to issues Nos 1 and 2 as formulated in the appellants’ brief is that the conditions of service of the appellant are as contained in exhibits 3H and 3K. His contract was not a contract with statutory flavour, yet it was one which cannot be terminated on the ground of misconduct without giving him the opportunity to defend that conduct. Olaniyan (supra) and Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 both apply.”

As it had been observed earlier in this judgment, the respondent’s contract is one which cannot be abrogated on the ground of misconduct without being granted an opportunity to defend the conduct by hearing charges against him and correcting and contradicting them.

Assuming respondent’s contract does not assume a special character over and above that of master and servant under the Act Cap 256, the mere fact that he had acquired membership of public service of the Federation under the provisions of section 277 of the Constitution certainly places his contract of employment over and above the pedestal of master and servant, in the result, his tenure must be jealously protected and guarded to avoid a breach which may result in a reinstatement.

Finally, the appellant’s condition of service, Exhibit H appears not to have made provisions whereby the respondent’s contract of service can be brought to an end by either party serving the other with notice of payment of salary or salaries in lieu thereof. The appellant’s condition of service only has provision for the respondent at the attainment of the age of 45 to retire voluntarily or be asked to do so by the appellant. See Chapter 13 of Exhibit H. The case of Obot v. Central Bank of Nigeria (1993) 8 NWLR (Pt.31O) 140 at 162, (1993) 9 SCNJ 268 and Chukwuma v. Shell (supra) had been determined on their own peculiar facts which may not be relevant to the present appeal. Obot for instance, did not ask for his dismissal to be declared null and void and be allowed to remain in his position.

The appellant, on the material before this court, unilaterally, according to the submission of the learned counsel for the respondent, and in breach of the rules of natural justice, section 33(1) of the Constitution and Chapter 34.01(3) of its conditions of service, Exhibit H repudiated the contract of respondent’s employment. The respondent rejected the repudiation. The respondent did not accept the single handed repudiation or treat the contract as repudiated either expressly or by his conduct. Acceptance of the repudiation by the respondent would have put an end to the contractual relationship. I, therefore, agree with learned counsel for respondent that the contract between both parties subsists since the unilateral repudiation is not capable of putting the contract to an end. His rejection of the repudiation is demonstrated in his bringing the action leading to this appeal. See Olaniyan (supra) 683 and M. Busari v. Edo State Civil Service Commission (supra) at 376 where Salami J.C.A. said:-

“The appellant did not accept the repudiation proposed by the respondent either expressly or by his conduct hence he went to court and got the letter purportedly dismissing him from the services of the respondents declared null and void and be regarded as if it had never been written. The appellant would have been deemed to have accepted the repudiation if he had asked for damages which he, in fact, did not ask for. A unilateral termination as we have in the instant case does not terminate the contract. In Howard v. Pickford Tool Co. Limited (1951) 1 KB 417, 421 Asquith, L.J., while dismissing the effect of repudiation said:-

“An unaccepted repudiation is a thin writ in water and of no value to any body, it confers no legal right of any sort or kind.”

And in Heyman v. Darwins Ltd. (1942) 1 All ER 337, (1949) A.C. 356, 361 Viscount Simon L.C. stated thus:”

But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side and acceptance of the repudiation on the other.”

(Italics mine)

There is no scintilla of evidence that the respondent accepted the appellant’s offer of repudiation of the contract either expressly or impliedly. The trial court was, therefore, right to declare the respondent’s dismissal null and void having found that the respondent did not enjoy his right to fair hearing. The consequence is that the letter of dismissal, Exhibit 1, is equally void and of no effect and the position would be as if it, Exhibit 1, was never issued and appellant never dismissed.

Issue 3 is answered positively and the ground of appeal from which it is formulated fails and it is dismissed.

I am next to consider appellant’s issue 4 as to the propriety or otherwise of the trial court granting all the reliefs respondent sought when some of them were in the alternatives.

In this connection, the learned counsel for the appellant contended that examination of the statement of claim in this proceedings reveals that reliefs 1, 2, 3, 4 and 5 were sought in alternative to relief 6. Counsel argued that it follows that the court should grant only one but the learned trial Judge granted all the reliefs. Learned counsel submitted that the position of law is that where an alternative claim is made in addition to a main claim in an action, it is only where the main claim fails that consideration and granting of the alternative claim can arise. Counsel supported his submission with the case of Nwangwa v. Ubani (1997) 10 NWLR (Pt.526) 559, 574 – 5.

Learned counsel for appellant contended that the learned trial Judge, by his orders, abdicated his duty to the parties particularly the appellant to pick and choose which of the orders to obey. He finally submitted on this issue that it is incompetent of the learned trial Judge to declare the respondent’s dismissal invalid and at the same time turn around to award damages for wrongful dismissal.

He sought, in support of this submission, the dictum of Karibi-Whyte, JSC, in Imoloame v. West African Examination Council (1992) 9 NWLR (Pt.265) 303, 313.

Learned counsel for the respondent in his response contended that the import of the trial court’s decision was that the respondent should be reinstated but the appellant was granted an option of payment of damages if it was not conducive to re-absorb the respondent. Learned counsel for respondent eventually graciously threw in the towel by agreeing that an alternative claim can only be granted where the main claim fails but contended that the grant was a mere surplusage.

The learned trial Judge, after ordering the reinstatement of the appellant on finding his first five reliefs 1,2,3,4 and 5, which are, in effect, particulars of one another, established, he held that respondent’s dismissal was null and void. He consequently ordered his reinstatement. Thereafter, he proceeded to consider his alternative relief and granted relief 6, which is for the sum of N3,130,840.00, an amount representing what the respondent would have earned had his employment continued until his attaining the retirement age of 60 years. The learned trial Judge ought to have restricted himself to consideration and granting of the first set of reliefs having found them in favour of the respondent rather than proceeding further to consider and granting, in addition, the alternative reliefs. Having found that the respondent’s first set of reliefs were successful the learned trial Judge ought not have gone further to consider his alternative relief. It is only where the first or main claim fails that consideration and granting the alternative relief arises. Both sets of the claim, main and alternative cannot be granted at the same time. See Agidigbi v. Agidigbi & ors. (1996) 6 NWLR (Pt.454) 300, 313 followed by Mahmud Mohammed, JCA, in the unreported case of CA/K/175/98: Abdullahi v. Katsina State Housing Authority & anor., delivered on 18th day of May, 2000 and Nwangwa v. Ubani (1997) 10 NWLR (pt.526) 559, 575 and Union Bank of Nigeria Ltd. v. Penny Mart Limited (1992) 5 NWLR (Pt.240) 228, 241 where Adio, JCA (as he then was) said:-

“Where an alternative claim is made in addition to a main claim, it is only when the main claim has not been granted that the consideration and the granting of the alternative claim can arise. Both the main claim and the alternative claim cannot at the same time be granted.”

The trial court need not consider the alternative claim having granted the main claim as no useful purpose was served by so doing. It was, therefore, an error for the learned trial Judge to make the order in relief 6 in his judgment in addition to the granting of reliefs contained in orders 1,2,3,4 and 5. The relief contained in order 6 is otiose.

I am, however, unable to accede to the respondent’s submission that the learned trial Judge considered and granted the main and alternative claim(s) to lighten the burden of the appellant by offering it a choice between reinstatement and paying off the respondent a once and for all sum if the atmosphere in the appellant’s place of work is not conducive to the retention of the respondent. This adroitly crafted submission is not candid. As far as I can see it, if the appellant opted for the order made pursuant to relief 6, it has lost its right to put the respondent on trial by following the correct procedure to discipline him before attaining the age of 60 or retirement. The order of the trial court setting aside the dismissal of the respondent and reinstating him implies that he was never removed consequently appellant’s right to remove him is still subsisting and exercisable if so desired subject to following lawful or proper procedure. See Shitta-Bey v. Federal Public Service Commission (supra), Olaniyan v. University of Lagos (supra), Eperokun v. University of Lagos (supra), Busari v. Edo State Civil Service Commission (supra) and Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278, 1284.

The alternative claim and the grant thereof is more in favour of the respondent than of the appellant as a once and for all payment emasculates the appellant’s right to properly try the respondent after it had, of course, complied with the court’s order by absorbing him into its service and paid him arrear of salaries ordered by the court.

I however, do not agree with the appellant’s contention that the judgment of the learned trial Judge was contradictory by granting the main as well as the alternative claims at the same time. Although learned trial Judge, in the instant appeal, wrongly used the words “wrongful”, “unlawful”, and “invalid” as if they were synonymous he was nevertheless focused on the issue before him. He knew the consequence of the failure of an employer to take the preliminary step which the law considers essential before removing him, hence he concluded thus in his judgment:-

“In the sum total, I find as a fact that the plaintiff was wrongly dismissed, the dismissal being unconstitutional and therefore unlawful. It is consequently of no effect whatsoever.”

(Italics mine)

Clearly, the unlawful aspect of this judgment is predicated upon the learned trial Judge having found the exercise unconstitutional which renders it invalid or null and void. The pivot of his decision is its constitutionality. The submission is therefore pegged respectfully on mere semantics. The two sets of awards, the main and the alternative are not different in essence. They are both mutually consistent and not contradictory contrary to the contention of the learned counsel for appellant. The reinstatement is in abstract term, if I may say, while the payment of salaries and allowances till retirement age is in monetary or concrete term. The implication of the monetary award, as the learned counsel for respondent postulated, is that the respondent should be taken back but if for some reason that order would not be complied with. the appellant was discharged of its obligations under the judgment, if the respondent was paid the equivalent of what he would have earned if he had remained in its service until attaining the retirement age which is age of 60. The judgment could be said to be contradictory if he has awarded damages consistent with one for terminating a contract of personal service in master and servant relationship under the common law. In that connection, the damages is the amount of salaries which would be sufficient to bring the contractual relationship to an end which is usually salary in lieu of notice covering a few number of months which is not the case here. I am respectfully of the firm view that the case of Imoloame v. West African Examination Council, is not applicable to the circumstance of the instant appeal. The two awards are reconcilable.

What the learned trial Judge awarded was a mere surplusage which can be simply corrected by striking it out. It does not result in the miscarriage of justice as neither the appellant nor respondent is thereby prejudiced. It is not every error that leads to the setting aside of the judgment, except it would result in or occasion a miscarriage of justice: Sylvester E. Ukaegbu & or. v. Duru O. Ugoji & ors. (1991) 6 NWLR (Pt.196) 127, 145; Okolo v. Midwest Newspaper Corporation & others (1977) 1 SC 33, 45; Atoyebi v. Gov. of Oyo State (1994) 5 NWLR (Pt.344) 290, (1994) 5 SCNJ 62, 84; and also Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523.

There is no error and if any it is a mere appendage incapable of vitiating the judgment.

The answer to this question is not quite negative as the alternative award is rightly or graciously conceded as surplusage. It is wrongly awarded and will be struck out and it is hereby struck out.

The remaining issue is appellant’s issue 5. I do not propose to deal with this issue dealing with assessment or evaluation of evidence. The trial court had found as a fact, rightly too, that the Disciplinary Ad-Hoc Committee did not offer the respondent opportunity to be fairly heard before he was dismissed. It follows that his dismissal would still be null and void since he was not given fair hearing before he was dismissed. The reason being that the guilt was arrived at, at a proceeding where the trial was conducted behind his back and where he had no opportunity to contradict what was being urged against him. Where the employer did not comply with the condition precedent that is, fair hearing, he forfeits his right to dismiss and any alleged dismissal is nullity. See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678 at 709 and Malloch v. Aberdeen Corporation (supra) at 1284 where Lord Reid said:-

“Then it was said that proper remedy would be damages. But in my view, if an employer fails to take the preliminary steps which the law requires as essential, he has no power to dismiss and any purported dismissal is a nullity. We were not referred to any case where a dismissal after failure to afford a hearing which the law required to be afforded was held to be anything but null and void.”

The answer to this issue is positive, it follows that the ground of appeal related thereto fails and it is dismissed. All the grounds of appeal related to the issues except issue 4 having failed and dismissed, the appeal partially succeeds and it is allowed to that extent. The alternative award of a lump sum to the respondent is set aside; otherwise the appeal fails and it is dismissed with no order as to costs, each party to bear his or its own costs.

---

Other Citations: (2001)LCN/0943(CA)