The Registered Trustees of the Planned Parenthood Federation of Nigeria & Anor V. Dr. Jimmy Shogbola (2003)

LawGlobal-Hub Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.

This appeal by the 1st and 2nd defendants (appellants) is against the decision of the Lagos State High Court (court below) (Coram: Rhodes-Vivour, J.) delivered on 27th June, 1996. The court below in a reserved judgment found that the termination of appointment of the plaintiff/respondent a public officer being ultra vires and therefore irregular was null and void. It granted the plaintiff’s claim to be reinstated.

Dissatisfied with the decision the defendants filed this appeal upon a notice of appeal filed on 2/9/96 containing three grounds of appeal and which was later by leave of this court granted on 27/9/99 amended as per the amended notice of appeal now containing four grounds of appeal.

The appellants filed a brief of argument and therein formulated three issues for determination to wit:

“1. Whether the learned trial Judge properly declared that the plaintiff/respondent should be reinstated in the employment of the 1st defendant/appellant after his appointment had been terminated by the said 1st defendant/appellant.

2. Whether the court was right to find that the plaintiff/respondent’s employment with the 1st defendant/appellant had statutory flavour and that the 1st defendant/appellant was a statutory body.
3. Whether the learned trial Judge was right to find the plaintiff/respondent on the basis that the vacancy created by the termination of his appointment had not been filled by the 1st defendant/appellant.”

The respondent also filed a brief of argument and raised three issues for determination to wit:

“1. The first issue for determination in this appeal is whether the learned trial Judge had jurisdiction to deliver judgment to reinstate the plaintiff/respondent after his appointment had been terminated by the first defendant/appellant.

2. The second issue for determination in this appeal is whether the learned trial Judge was right in holding that the employment of the respondent by the first appellant had statutory flavour and that the 1st appellant was a statutory body.
3. The third issue for determination in this appeal is whether the learned trial Judge was obliged to hold that there was no evidence that the first appellant had appointed another person to fill the vacancy created by the termination of the appointment of the respondent after the learned trial Judge had made an order to declare null and void and of no effect the termination of the appointment of the respondent.”

I think that before going into the facts of this matter, I should set out a simple prefatory of the 1st appellant. Exhibit E shows that the 1st appellant is a voluntary, non-governmental organization promoting voluntary human fertility regulation and family planning practice. The organization is registered also as a non-religious, non-political, non-profit sharing organization under the Land (Perpetual Succession) Act, Cap. 98.

The facts of this case are not really in controversy. The respondent was appointed the Lagos State Manager of the 1st appellant with effect from 1st February, 1993 on probation for one year by a letter dated 8th January, 1993, that is exhibit ‘A’ and subject also to the 1st appellant Staff Handbook- exhibit ‘E’. During the probationary period, the respondent was by a letter of 20/12/93 appointed a member of a standing committee for two years from January, 1994. Before the expiry of the probation period almost at the tail end of it the appellants served on the respondent a letter of termination of appointment giving the respondent a month’s notice from 17/1/94 to expire on 16/2/94 terminating the said appointment with the 1st appellant.

The respondent as plaintiff instituted the instant action against the defendants (appellants) claiming amongst other things to be reinstated. It is to be noted that under section 1.3 of exhibit ‘E’ headed ‘Labour Code’ is provided:

“The prevailing National Labour Code in Nigeria should be used in conjunction with this manual. Attention should be drawn to any section of this manual which violates any existing National Labour Code for necessary amendment. It expressly excluded the Public Service Regulation.”

On issue one, the appellants in making their submissions underlined the principle that there was nothing in the pleadings to show any special circumstances in the respondent’s employment to justify declaring the termination null and void and to order the reinstatement of the respondent. Moreso, that the court should not be seen to compel an unwilling employer to retain the services of a willing employee. See: Union Bank of Nigeria Ltd. v. Chukwuelo Charles Ogboh (1995) 2 NWLR (Pt. 380) 647 at 653, Jeremiah v. Ziregbe (1996) 7 NWLR (Pt. 460) 346 para. 6, and NEPA v. Isieveore (1997) 7 NWLR (Pt. 511) p. 135 ratios 1, 2, 3 and 4.

On issue two the appellants argued that although the 1st appellant was registered under the provisions of a statute, that is Land Perpetual Succession Act it did not confer any special character to the appointment and status of the employee as these were to be determined by the legal character of the contract of the employee. See: N.E.P.A. v. Isieveore (1997) 7 NWLR (Pt. 511) 135 at 138, Fakuade v. Obafemi Awolowo Teaching Hospital (1993) 5 NWLR (Pt. 291) 47 and Adeniyi v. Governing Council, Yaba College of Technology (Yaba-Tech) (1993) 6 NWLR (Pt. 300) 426. They submitted that the court below having misdirected itself as to the Staff Handbook and the purported termination by departing from the mode set therein came to the erroneous conclusion that the respondent’s employment still subsisted as though it had statutory flavour.

On the 3rd issue, the appellants argued that the finding that the vacancy created by the termination of the respondent’s employment had not been filled as going to no issue not having been pleaded and not founded on any evidence before the court. They relied on the cases of Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413, Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407, ratios 13 and 14 and Emegokwue v. Okadigbo (1973) 4 SC 113 for so asserting. Finally, they urged the court to allow the appeal.