Nigerian Gas Company Ltd. V. Mr. G. O. Dudusola (2005)

LawGlobal-Hub Lead Judgment Report

M. ABBA AJI, J.C.A

The Respondent in this appeal was the plaintiff in an action filed by him at the High Court Effurun, Delta State, against the Appellant who was the Defendant before the Lower Court.

The Plaintiff/Respondent had claimed from the defendant/Appellant the following reliefs: –

(i) A declaration that the letter of termination dated 26th day of September, 1990, issued to the plaintiff by the defendant is wrongful, void and no effect whatsoever.

(ii) A declaration that the letter of termination dated 26th September, 1990 is contrary to the rules of Natural Justice and therefore void and of no effect.

(iii) A declaration that the Plaintiff is till an employee of the Defendant, and is entitled to all the benefits of his office from 26th September, 1990.

(iv) An order of court directing the Defendant to reinstate the Plaintiff to his office of employment and to pay him all his outstanding salaries, emoluments and benefits from the date of the purported termination.

The Respondent was employed by the Nigerian National Petroleum Corporation (NNPC) as an Administrative Officer in October, 1983, and was subsequently transferred to and absorbed by the Appellant in 1989, where he rose to the rank of a Senior Administrative Officer.

By its letter dated 26th September, 1990, the Appellant terminated the Respondent’s Appointment with immediate effect “for Services No Longer Required” and offered him a month’s salary in lieu of notice.

At the trial, the Respondent testified on his own behalf, called no other witness and tendered Exhibits A to D, being his letter of termination of appointment, his letter of appointment, and two letters of promotions respectively. The Appellant called one witness and tendered no exhibits. At the conclusion of hearing, the learned trial judge, Bozimo J. (as she then was) granted all the declaratory reliefs sought and ordered that the Respondent be reinstated by the Appellant. Being dissatisfied with the judgment of the Lower court, the appellant appealed to this court on five grounds of appeal.

The grounds of appeal without their particulars reads:-

1. The learned trial judge erred in law, in holding that the Termination of the plaintiffs employment was actuated by an allegation of crime to wit:-
2. The learned trial judge erred in law, in refusing to allow the Defendant’s motion to amend its statement of defence so as to restrict the defence to paragraphs 1 – 5 of the statement of defence.
3. The learned trial judge erred in law, in ordering the re-instatement of the plaintiff when by his pleading and legal evidence adduced the plaintiff had tacitly accepted the termination by claiming damages and compensation.
4. The learned trial judge erred in law, in entering judgment for the plaintiff when the plaintiff was unable to prove the contract.

The parties in compliance with the rules of this court, filed and exchanged briefs of argument. The Appellant in his brief of argument deemed filed on the 14th September, 2000, formulated four issues for the determination of the appeal, viz:-

1. Was the learned trial judge right in law, when she held that the termination of the Respondent’s appointment was actuated by an allegation of crime?
2. Was the learned trial judge right in law, in ordering the reinstatement of the Respondent, bearing in mind that his appointment was one without a statutory flavour?
3. In view of the fact that no evidence in support of the averments in paragraphs 6 – 9 of the statement of defence, was the learned trial judge right in law, in placing any premium on the said paragraphs in her judgment?
4. Does the evidence adduced support the judgment of the court?

The Respondent identified two issues for determination of the appeal namely:-

1. Whether the learned trial judge was right, when she held that the appellant did not act reasonably, in terminating the Respondent’s appointment based on allegation of crime which was yet to be proved.
2. Whether the learned trial judge was right in ordering the Appellant to reinstate the Respondent.

The Respondents two issues formulated are the same in form and content with the Appellants issue one and two and the Appellants issues three and four can be adequately considered in the determination of the first and second issues. I will in the circumstances adopt the Respondent issues of determination in resolving the issues raised in this appeal.

Issue one for determination is on the termination of appointment on the allegation of commission of a criminal offence. It is submitted for the Appellant that the letter of termination, Exhibit ‘A’ does not give any such reason like commission of crime for the Respondents termination. That the only reason in Exhibit ‘A’ for the termination is for services no longer required and that this position is consistent with the testimony of the sole witness for the defence and of the Respondent under cross-examination. It is further submitted that on the face of Exhibit ‘A’, the termination letter, no extraneous motive or reason can be read with it. Learned Counsel referred to Sections 132, 136 & 137 of the Evidence Act, Cap. 112 LFN 1990. He also referred to paragraphs 7 – 10 of the Respondent’s statement of claim and submitted that it is the responsibility of the respondent to adduce available evidence in support of those averments. He referred to the cases of PDP & ANOR VS. INEC (1999) 7 SCNJ 297 at 322 – 323 and ELEMA VS. AKENZUA (2000) 6 SCNJ 226 AT 231 & 238.

It is contended that the Respondent did not lead evidence in support of these averments in his paragraphs 7 – 10. That he did not tender the written response he made at the request of the Appellant’s Mr. Obiakpi. That he did not tender his report neither did he tender the minutes of the Board of directors Meeting of 26th September, 1990, where Mr. Obiakpi’s report was discussed and endorsed. That other than the respondents assertion before the court there was nothing tendered in support of the averments in these paragraph even though these documents existed. It is further contended that there was no evidence at all in support of these very vital averments and the court ought to have dismissed the Respondents claim citing OTARU & SONS LTD VS. IDRIS (1999) 4 SCNJ 156 at 184 and KATTO VS. CBN (1999) 5 SCNJ 1 at 12. Learned Counsel further submitted that the learned trial judge was influenced by paragraphs 6 – 9 of the Appellant’s statement of defence to come to the conclusion that the termination was a result of allegation of crime while by paragraph 5 of the Statement of defence, the appellant categorically denied the averments in the respondent’s Statement of claim, that even if the paragraphs can be termed as admissions of the averments therein, that they are not conclusive proof of the matters admitted.

It is submitted that there was still an evidential burden on the part of the Respondent to discharge referring to Section 26 of the Evidence Act and the case of EHIDIMWEN VS. MUSA (2000) 4 SCNJ 325 at 336. Learned Counsel urged us to resolve this issue in favour of the Appellant.

It is further submitted for the Appellant that the crux of the Respondent’s case was that the Appellant acted contrary to the conditions of service, i.e. the contract governing the employment of the Respondent and the respondent did not tender the contract documents in which he relied. That the averments in the statement of claim as to why he was terminated were not supported by evidence. It is submitted that the position of the law is that such averments go to no issue at all and deemed abandoned citing OLORUNFEMI VS. ASHO (2000) 1 SCNJ 122 at 134, OLOHUNDE VS. ADEYOJU (2000) 6 SCNJ 470 at 484 – 485 and OYINLOYE V. ESINKIN (1999) 6 SCNJ 278 at 288. It is submitted that the court ought to have dismissed the claim as the Respondent can only succeed on the strength of his own case and not on the weakness of the defence citing HUMA V. IME (2000) 7 SCNJ 40 at 48 and ELEMA V. AKENZUA (2000) 6 SCNJ 226 at 231 and 238. It is also submitted that even if the Respondent’s claim is proved, the order of reinstatement is not proper as it is trite position of the law that a servant (employee) cannot be imposed on an unwilling master citing FAKUADE V. OAUTH (1993) 5 NWLR (PART 291) 47 at 58; CHUKWUMAH VS. SHELL PETROLEUM DEV. CO. LTD. (1993) 4 NWLR (PART 289) 512 at 534 and NNPC VS. IDONIBOYE-OBU (1996) 1 NWLR (PART 247) 665 at 671 – 672. It is further submitted that the contract of service which was supposed to have been breached was not tendered and that there was therefore no basis for the trial court to have reach the conclusion that there was a breach citing FAKUADE V. OAUTH (supra). It is also submitted that the Respondent’s appointment was not one with statutory flavour as the point does not arise in the pleadings which was silent on the nature and status of the respondent’s appointment. That the decision in the case of SOMEKUN V. AKINYEMI (1980) ALL NLR 153 is no longer a good law.

That in an action for wrongful termination of appointment, the onus is on the plaintiff to prove the terms of contract allegedly breached referring to the case of IWUCHUKWU V. NWIZU (1994) 7 – 8 SCNJ 328. It is contended that the Respondent’s case at the Lower Court was hollow, porous and devoid of any legal substance and the claim ought to have failed.

The following cases were cited; JIAZA V. BAMIGBOSE (supra) at 177; and KATTO V. CBN (1995) 5 NWLR (Pt.92) AT 101-102. Learned counsel urged us to resolve all the issues in favour of the Appellant, allow the appeal and set aside the judgment of the lower court.

For the Respondent, it is submitted that his appointment was terminated on an allegation of commission of a criminal offence and that the Appellant did not deny this fact as shown in paragraphs 6 -9 of the Appellant’s statement of defence, and that there was an investigation panel set up by the Appellant to investigate the alleged crime that recommended the Respondent’s termination to the Appellant’s Management without giving him, the Respondent a fair hearing. It is submitted that the Management had no power to terminate the Respondent’s appointment without first charging the Respondent to court or a report made to the police who would have charged the Respondent to court. That the investigation panel cannot take the place or usurp the powers of a court of law citing; G. O. SOFEKUN VS. CHIEF N. A. AKINYEMI & OTHERS (1980) ALL NLR 153. It is further submitted that the reason adduced by the appellant for terminating the respondent’s employment not been proved before a competent court of law is unfounded and wrongful. Citing the following cases; SHITTA BAY VS. FPSC (1981) 12 NSCC 26 at 28 FAKUADE VS. OAUTH (supra) and NYONG EMMANUEL OBOT V. C.B.N. (1993) 8 NWLR (Pt. 310) 140.

It is further submitted for the Respondent that the court below ordered the Respondent to be reinstated because his employment was one with statutory flavour. It is submitted that the Appellant is a subsidiary of Nigeria National Petroleum Corporation which is a creation of statute and the court is bound to take judicial notice of, particularly the NNPC Act. It is also submitted that, the fact that the Appellant is a subsidiary of the NNPC, it follows that its own creation was by statute thus confirming statutory flavour on all its employees citing Section 11(2) of the NNPC Act Cap 320 of the Laws of the Federation, 1990. That this being the position, the termination by the Appellant was unlawful and null and void and urged the court to dismiss the appeal.

The point in issue in this appeal is whether the Court below was right, when it held that the Respondent’s termination was actuated by an allegation of crime and thus, ordering the reinstatement of the Respondent into the services of the Appellant.

I think it will be of immense assistance in elucidating the legal basis for the termination of the Respondent’s appointment to reiterate the facts immediately proceeding the termination. It was the case of the Respondent at Court of trial that his appointment was terminated based on an allegation of criminal offence that was not proved before any court of law or reported to the police for investigation. He testified as follows before the trial court;

” … Between when I was promoted and when I was terminated, the officer in charge of security of the Defendant Mr. L. N. Obiakpi called me to his office to asked me questions about some missing items in Defendant’s ware house. He later told me that some items – 22 umbrellas, 8 rain coats and 2 rain boots all valued at N21,127.00K were missing from the ware house. This was in July, 1990. this confrontation was later put into writing by me. I was not invited again for any questioning after the confrontation with Mr. Obiakpi. Mr. Obiakpi now wrote a report to the defendant’s Management accusing me of stealing the missing items and in the report which was in August 1990, he recommended to the defendant Management that I should be dismissed. I saw the report. The management of the Defendant relied on the report by Mr. Obiakpi in taking their decision to terminate my appointment on their Board Meeting of 26/9/90.

I saw the minutes of the board Meeting. I was not invited before any panel for interrogation. I was never arrested by the police or charge to court ” See page 36.

The Respondent further stated under cross-examination as follows:-

“Exhibit A is a letter terminating my appointment. Exhibit A did not accused me of anything. Exhibit A was the only document by which my appointment was terminated…”

See page 39.

To this allegation of crime, DW1, the sole witness for the Appellant testified as follows:-

“Plaintiff’s appointment was not terminated as a result of allegation of theft.”

Under cross-examination, he stated as follows: –

“Before his termination, there was a theft reported in the plaintiff’s department. It was for umbrellas, rain coats, etc. I know one Mr. Obiakpi. He is our officer in charge of security. I know that the said Obiakpi made a report to the management concerning the theft. I know that an investigation was carried out by Mr. Obiakpi and he made a report to the management. I did not know why the plaintiff was indicted because I did not see the report…

It is the plaintiff’s case that we terminated him because of the missing umbrellas but that is not true… The termination has nothing to do with the missing umbrellas…”

Based on the pleadings and evidence adduced, the learned trial judge found for the plaintiff as follows:-

“I am satisfied from the state of pleadings and evidence adduced by the parties that there was indeed an investigation panel set up by the Defendant to look into the theft of umbrellas and rain coats from Defendants store. I am also satisfied that plaintiff was not called before this panel to meet his accusers. Defendant, as pleaded in Paragraph 8 of the statement of Defence did not lead any evidence to Show plaintiff s complicity and involvement in the said theft. Even if the Obiakpi’s panel had established the involvement of the plaintiff in the said theft, he ought to have been charged to court to determine that involvement. The case is however, different where the plaintiff is caught red-handed or where he admits the crime. In that case no notice of termination ought to be given.

The plaintiff before me is denying any involvement in the theft with which he is accused. Even if the Defendant was satisfied that Plaintiff was involved, it ought to have made a report to police and the Plaintiff charged to court…

I hold, based on the pleadings, the evidence adduced thereof and the case of Dr. G. O. Sofekun V. Akinyemi (supra) that the defendant did not act reasonably in the circumstances of this case in terminating the plaintiff’s appointment. Consequently, Plaintiff is entitle to all the reliefs sought and it is hereby ordered…”

The learned trial judge granted all the four reliefs sought by the Respondent including an order of reinstatement, Now the following questions rear the heads; was the court right in declaring the termination wrongful, null and void? Was the termination contrary to the rules of Natural Justice? Was the court right when it order reinstatement of the Respondent with full benefit. Has the Respondent led any cogent and credible evidence in proof of allegation of crime? The answers to these questions will be determine in the course of this judgment.

I find it necessary at this point to examine Exhibits A and B, the letter of termination and that of appointment. The termination letter Exhibit A, is hereby reproduced below:-

“NIGERIAN GAS COMPANY LIMITED,

ODIN ROAD, EKPAN,

P.M.B. 1288, WARRI, BENDEL STATE,

Ref: NGC/APD/WR.37,

Date: 26th Sept. 1990.

Mr. G.O Dudusola

(ID 10636),

Through Head, APD,

Nigerian Gas company Limited,

Ekpan.

Dear Mr. Dudusola,

TERMINATION OF APPOINTMENT

This is to inform you of Management’s decision that your services with the Nigerian National Petroleum corporation are no long required with effect from today, Wednesday, 26th September, 1990.

You should please arrange to hand over immediately all Corporation’s property in your possession including official documents, moveable assets and your identity card to your Head of Department and obtain from him a clearance letter confirming your compliance with this requirement.

By a copy of this letter finance and accounts department is being advised to pay you one month’s salary (less your indebtedness, if any) in lieu of notice. But please note that this terminal entitlement will only be paid on presentation of the clearance letter mentioned above.

Yours faithfully,

for: NIGERIAN GAS COMPANY LIMITED.

Sgd.

Y.B. Iza,

for: Managing Director.”

The Respondent’s letter of appointment which is Exhibit ‘B’ in this proceedings also reads:-

EXHIBIT “B”

NIGERIAN NATIONAL PETOLEUM CORPORATION,

FALOMO OFFICE COMPLEX, IKOYI,

P.M.B.12701,

LAGOS.

Ref. AD/PER/141

Date: 4th October, 1983,

Mr. G. O. Dudulola,

Thro.: G. M. Commercial Division,

N.N.P.C., Falomo, Lagos.

Dear Sir,

OFFER OF APPOINTMENT

I am pleased to convey to you, the decision of the Management of this Corporation to offer you appointment as an administrative Officer II on a starting salary of N5,244.00 per annum on the Corporation’s salary scale 12/2. The offer is with immediate effect and it is open until 4th January, 1984.

2. The fringe benefits attached to the appointment include free Medical service for you, your wife and children as laid down in our Conditions of Service, and the following allowances:-

(i) Leave Allowance: 7’bd % of your basic salary subject to maximum of N500.00

(ii) Housing Allowance: N240.00 per month or partly furnished quarters when available;

(iii) Transport Allowance N55.00 per month;

(iv) Utility Allowance: N40.00 per month.

3. The offer is subject to your passing a medical test to be conducted by the Corporation’s doctor, and a successful Police clearance. Your appointment thereafter will be confirmed after 12 months or satisfactory probationary service.
4. As an indication of your acceptance of this offer, please sign the attachment which should be return to reach our office before.
5. When assuming duty, please bring the following:-

(i) Five passport photographs,

(ii) Original and photocopies of Certificates of Examinations passed,

(iii) Birth Certificate or Declaration of Age,

(iv) N.Y.S.C. Certificate (if applicable).

(v) Duplicate copy of previous month’s salary slip issued by the former employer (if applicable).

Yours faithfully,

for: NIGERIAN NATIONAL PETROLEUM CORP.

Sgd.

S.S. Okpanachi,

for: Manager, Personnel Services Dept.”

For the Appellant it is vehemently argued that the letter of termination Exhibit A does not give any reason of commission of crime. That the only reason given in Exhibit A for the termination is that the Respondent’s services were no longer required and the Respondent admitted this fact under cross-examination. It is beyond doubt that there was theft of some items from the Appellants’ ware house and that the management ordered investigation into the missing items. The Respondent was questioned on the issue of the missing items by the security officer Mr. Obiakpi. That was in July, 2000. The Respondent’s termination came not long after, that was in September of 2000. Could the theft committed in July of the missing items influenced the Respondent’s termination in September, 2000?

That was the contention of the Respondent which was vehemently denied by the Appellant. Section 135(1) of the Evidence Act provides: –

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those fact exist.”

The burden therefore lies on the person who would fail is no evidence at all were given. See also Section 36 of the Evidence Act.

Respondent’s evidence relating to the allegation of commission of crime has been reproduced. It is pertinent to note here that neither Mr. Obiakpi’s report nor the Minutes of the Management Board Meeting of 26/9/2000, were produced before the court. Exhibit ‘A’ did not contain any reason for termination. It only stated “for services no longer required”. Is that sufficient to infer commission of crime? The Appellant denied paragraphs 7-10 of the Respondent’s statement of claim which are account of his accusation, the investigation and the report terminating him and the recommendation for his immediate dismissal. Evidence has not been led by the Respondent to establish the allegations contained in those paragraphs. It has long been established in civil matters, that the onus of proof lies on the plaintiff to satisfy the court by cogent and credible evidence that he is entitled on the evidence adduced by him to the declaration sought in his claim. In this regard, the plaintiff may rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the Defendant. See ELEMA VS. AKENZUA (supra) and OTARU & SONS LTD VS. IDRIS (supra).

The learned trial judge in entering judgment for the plaintiff heavily relied on paragraph 6 – 9 of the Appellant’s Statement of defence which according to the learned trial judge admitted the allegation of crime. The said paragraphs are hereby reproduced:-

(6) ALTERNATIVELY, defendant aver that the plaintiff was clearly not bound to be convicted or acquitted or charged for any alleged criminal conduct before the defendant can exercise its right to terminate or dismiss the plaintiff.

(7) Defendant will contend that even if all the allegations averred to in paragraphs 7-11 of the plaintiff s statement of claim give rise to a criminal offence, the question for answer by this court is not whether the plaintiff committed the crime but whether the defendant company acted reasonably in the circumstances in terminating the plaintiff”s appointment.

(8) At the hearing of this suit, the defendant will lead cogent and credible evidence of the theft of the 122 umbrellas, 8 rain coats and 2 pairs of rain boots all valued N21,117.00K property of the Nigerian Gas Company, Ekpan. And evidence to show the involvement and complicity of the plaintiff. Defendant pleads and relies on the investigation report pleaded in paragraph 10 of the plaintiff”s statement of claim. The termination of the plaintiff’s appointment is a reasonable act by the defendant company. The plaintiff was given opportunity to defend himself and he made use of it.

(9) That the possibility of a repeat performance by reason of the Plaintiff s position in the company calls for this termination with immediate effect. Defendant will at the hearing rely on all documents, queries, literature etc in proof of the plaintiff s involvement in the whole saga.”

The averments in these paragraphs were not supported by any evidence before the trial court. An averment in a pleading is not and does not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted. Thus, it is one thing to aver a material fact in issue in one’s pleading and quite a different thing to establish such a fact by evidence. It is therefore, settled that pleaded facts in respect of which evidence is not adduced during the trial are deemed abandoned and go to no issue. See AJUWON V. AKANNI (1993)9 NWLR (Part 316) 182 at 200.The said paragraphs cannot be treated as an admission of the respondent’s averments in the statement of claim. They are alternative averments in support of which the Appellant led no evidence, even if it is assumed that the said paragraphs constitute an admission of the averments made by the plaintiff, the Respondent still had the burden to discharge the evidential burden relating to those averments. It is therefore wrong for the trial court to have relied and acted on them to enter judgment for the respondent. Before a court can grant a declaratory relief sought by a plaintiff, he must plead and lead evidence to entitle him to the declaration sought.An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The basis of the declaratory relief claimed by the Respondent in the instant case were predicated on his condition of employment which was never exhibited before the trial court. He cannot rely on perceived admission by the Appellant. Courts do not make declarations of right either on admissions or default in defence. The plaintiff has the bounding duty to satisfy the court by evidence and not through admission in the pleading of the defendant that he is entitled to the declaration sought. The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See IGBINOVIA VS. V. B.T.H. (2000) 8 NWLR (PART 667). The trial court was therefore in error when it entered judgment for the Respondent on facts unsubstantiated by evidence before it that the Respondent’s appointment was terminated on an allegation of a criminal act that was never proved or investigated. This issue is therefore resolved in favour of the Appellant.

On whether the court was right to have ordered a reinstatement of the Respondent, the court has not considered the termination of the Respondent’s vis-a-vis his contract of employment if any. From the record of proceedings no contract of appointment and conditions of service governing the appointment of the Respondent has been Exhibited before the Court in evidence. None has been tendered by either the Appellant or the Respondent. Exhibit ‘B’ the offer of Appointment does not contain such conditions. It only stated the entitlements of the Respondents.

In his evidence before the trial court, the Respondent testified as follows as regards his condition of service: –

“My employment is guided by the condition of service which stipulates that a reason must be given for my termination. I belong to the Petroleum and Natural Gas Senior Staff Association of Nigeria, (PENGASSAN). As a member of this body I am bound by all decision agreement by PENGASSAN and the agreement with its parent body the NNPC. There is a judgment from the industrial court in the suit between PENGASSAN V. NNPC, where the court ruled before a Senior Staff is terminated, a reason must be given for such an action. No reason was given for my termination in Exhibit “A” … ”

This evidence is in line with paragraph 12 of the plaintiffs (Respondent’s) Amended Statement of claim. The paragraph reads: –

“The Defendant has as its parent company the Nigeria National Petroleum corporation (N.N.P.C.) and the plaintiff as its Senior Employee is a member of the Petroleum and Natural Gas Senior Staff association of Nigeria (PENGASSAN) By the provisions of the conditions of services regulating the employer/employee relationship of the parties herein, the Defendant is under a binding obligation to I give reason for the termination of its Senior Staff. The Defendant shall at the hearing of this case rely on the judgment of the National Industrial court in suit No. NIC//8/90: NIGERIAN NATIONAL PETROLEUM VS. THE PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA…”

(page 30 – 31)

The Respondent is the sole witness in his own case. DW1 testified as follows as regards condition of service.

“…I am familiar with the condition of service. It is the same as the condition of service for NNPC. It is not true that the conditions of service stipulates that plaintiff must be given reason for his termination. To terminate legally, a staff to be terminated is normally paid one month’s salary in lieu of notice. That was the procedure that was used for the plaintiff…”

The question that may be asked at this juncture is, what then is the position of the Respondents termination in the absence of any contract of service that governs the relationship between them?

It is settled that a Plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts:-

(a) That he is an employee of the defendant;

(b) The terms and conditions of his employment; and

(c) The way and manner and by whom he can be removed.

It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these.

A contract of service is the bedrock upon which an aggrieved employee may found his case, he succeeds or falls on the terms thereof.

In the instant appeal there is no contract of service. None does exist and even if it existed it has not been tendered before the court. What then will the court do faced with such a situation? It is my view that the court has only one option, that is to fall back to the common law principle of master and servant relationship.

It is a well established principle of the common law, and of Nigerian Law, that ordinarily, a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all. Consistent with this principle, is also the law that the court with not impose an employee on an employer. Hence an order for specific performance of contract of employment is an aberration which is rarely made! The only remedy the servant has is to claim damages for the wrongful act of his master.

Since the master has the right to hire and fire for good or for bad or for no reason at all, and the court cannot compel the employer to continue keeping an employee it does not want just as no employer could prevent an employee from resigning from his employment to seek greener pastures elsewhere, the servant’s remedy lies in a claim for damages where the termination is wrongful. Was the Respondent’s termination wrongful in the circumstances?:

Paragraph 3 of Exhibit A, the termination letter reads;

“By a copy of this letter finance and accounts Department is being advised to pay you a month’s salary(less your indebtedness, if any) in lieu of notice.”

This paragraph, may be construed to mean that the respondent was given one month salary in lieu of notice, thus, bringing to an end the relationship of master and servant between the Appellant and the Respondent. It has been held that where a contract of employment creates a mere master and servant relationship, the master has of unfettered right to terminate or dismiss the servant. The motive of exercising the right to terminate does not render the valid exercise of that right ineffective, and even where the employer goes out of his way to give reasons for terminating, provided he gave the required notice, the court will not inquire into the cogency of the reason or otherwise. See FAKUADE V. OAUTH (supra), BAMGBOYE V. UNILORIN (1999) 10 NWLR (PART 156) 356.

The Supreme Court per KARIBI-WHYTE, JSC, said at page 560 in CHUKWUMAH V. SHELL PETROLUEM (supra) thus: –

“In the ordinary case and following the common law principle, termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality.”

Learned Counsel for Respondent has attempted by inference to cloth the respondent’s contract of service with statutory flavour, by urging the court to take judicial notice of the fact that the Appellant is a subsidiary of the NNPC and that its own creation was by statute, thus conferring statutory flavour on all its employees, which include the Respondent referring to Section 11(2) of the NNPC Act Cap. 320, Laws of the Federation, 1990.

With due respect to the learned Counsel, he has became completely blind folded by the fact he has failed completely to place before the court any document in form of contract of employment, governing the relationship between the parties. It is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question. The contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof. Those whose appointments are governed by conditions within the statute are those who can claim that their appointments are with statutory flavour; other than the ordinary master – servant relationship with employer. The employer is bound to comply with those conditions otherwise his act of termination would be declared null and void and any other act based therein will also be void. See UMTHMB V. DAWA (2001) 16 NWLR (PART 739) 424; OLANIYAN V. UNILAG (1985) 2 NWLR (Pt.9) 599; and SHITTA-BAY VS. FPSC (supra). Where as in the instant case, the appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour.

This is not withstanding the fact that the employer is a creation of statute or is a statutory corporation as contended by the Respondent. In other words, the fact that an organization or institution is a statutory body does not mean that the conditions of service of its employees are protected by statute. See FAKUADE V. OAUTH (supra) at page 447.

Where an employment protected by statute is terminated unlawfully, the remedy is to declare such termination null and void and to reinstate the employee so affected to his former position. In the instant appeal, the Respondent’s appointment is not one with statutory flavour. It is a master-servant relationship whose appointment can be terminated by the employer at any time with or without reason provided he has given the necessary one month notice or one month salary in lieu of notice and thus brings to an end the relationship of master and servant. See GEIDAM V. NEPA (2001) 2 NWLR (Part 696) 45. It is therefore wrong in the circumstances of this case for the learned trial judge to have ordered reinstatement of the Respondent by the Appellant, when the condition of his appointment is not one with statutory flavour. The court cannot by its order compel the employer to keep in its employment an employee whose services are no longer required. See OPUO V. NNPC (2001) 14 NWLR (Part 734) 552.

It would be right to say that the termination letter Exhibit ‘A’ effectively terminated the contract between the Appellant and the respondent and the payment of one month’s salary in lieu of notice clearly brings to an end the relationship of master and servant and exculpate the Appellant from any liability.

From the foregoing therefore, the issues considered in this appeal are resolved in favour of the Appellant. There is therefore merit in this appeal and same is hereby allowed. The judgment of Hon. Justice Roseline P.I. Bozimo J. (as she then was) delivered on the 1st day of February, 1996, and all the reliefs granted therein in the said judgment are hereby set aside. The Appellant is entitled to costs which I assess and fixed at N3,000.00.

Other Citations: (2005)LCN/1681(CA)