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.

With regard to issue one the respondent submitted that the court below having declared the letter of termination of 14/1/94 ultra vires, null and void meaning that the respondent was not at all terminated, had the jurisdiction to make the consequential order of reinstatement as the Lagos State Manager of the 1st appellant. He relied on the cases; Mustafa v. Monguno Local Government (1987) 3 NWLR (Pt.62) 663 pages 671 – 672, Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599, 629, 630 and 632; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 169, 170 and 177 to show that the consequential order of reinstatement was automatic as the master/servant relationship subsisted.

On the issue that the employment of the respondent with 1st appellant has statutory flavour the respondent rested the submission on the 1st appellant being a corporate body so incorporated under section 2(1) of the Land (Perpetual Succession) Act, 1958 and so ‘the respondent enjoyed statutory and constitutional flavours.’

Relying on section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990 the respondent submitted that the word ‘month’ means a calendar month reckoned according to the Gregorian calendar. See: Oyekoya v. G. B. Ollivant (1969) 1 All NLR (Vol. 1) 80 at 80, 84 and 85. The respondent also invoked section 6(6)(b) and section 33(1) of the 1979 Constitution on the judicial power of the court and fair hearing to justify the order of reinstatement.

On the 3rd issue, the respondent justified the order of his reinstatement as the vacancy created by his termination had not been filled by the 1st appellant even though he later at paragraph 5.02 of his brief submitted that the court was not so obliged to be first satisfied before so ordering. See: Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 629, 630, 632. The respondent then urged the court to dismiss the appeal with substantial costs.

The issues, for determination raised by the parties in their respective briefs to this matter being identical, I have opted to be guided by the issues for determination as formulated by the appellants in dealing with the appeal. Needless, adding that they will help resolve the matter in controversy in the matter.

I think issues one and two in the appellants brief, which are coterminous with issues one and two in the respondent’s brief have in order not to be repeating myself to be discussed together.

I think that the bottom-line of the issues one and two, so to speak, is whether the plaintiff/respondent’s employment was properly terminated by the appellants. Before engaging the said issues as outlined above it is pertinent to observe that the state of the law on matters relating to master and servant relationship appears fairly settled.

At common law, an employer can terminate his employee’s contract of service at any time and is not obliged to give any reasons for so doing. Equally so, there is no rule requiring an employer to follow a proper procedure in dismissing his servant. However, as a general rule, if he does in a manner not in accordance with the terms of the contract of employment he is liable in damages for breach of contract.

It has also been shown through numerous authorities that the courts are averse to compel a willing employee on an unwilling employer unless special circumstances to justify such action are shown to exist in the contract.

I must, all the same, reiterate that ordinarily, the courts have scrutinized termination of contract of employment from the broad perspectives of namely simple contractual relationship of master and servant at common law and contracts of employment with statutory flavour. In the one case, action in damages lies for its repudiation or breach by wrongful dismissal, so that if an employer wrongfully dismisses the employee either summarily or by giving insufficient notice, the employment is all the same effectively terminated. See: Vine v. National Labour Board (1957) A.C 488 per Lord Reid, while in the other with statutory flavour, that is, where the appointment and dismissal of an employee is regulated by a statute in which case some rights and obligations are given and imposed respectively, usually beyond the ordinary contract of employment, See: Francis v. Municipal Councillors of Kuala Lumpur (1921) 3 AER 633, a declaratory relief coupled with damages may be granted if the requirements of the statute are not complied with. See: Union Bank of Nigeria Ltd. v. Chukwuelo Charles Ogboh (1995) 2 NWLR (Pt. 380) 647 at 653, Jeremiah v. Ziregbe (supra), NEPA v. Isieveore (supra), Fakuade v. Obafemi Awolowo Teaching Hospital (supra), Olaniyan v. University of Lagos (supra).

It should be noted also as settled law that when there has been a purported termination of a contract of employment, a declaration to the effect that the contract still subsists will be rarely made because of the principle of law that the courts are averse to grant specific performance of contract of service; special circumstances will, however, be required for the court to exercise its direction in that regard.The respondent in his brief adverted to his purported dismissal as being ultra vires and so null and void making his reinstatement imperative.

In that wise, I think I should apart from highlighting as per above, contracts with statutory flavour where the procedure for their determination has to be complied with to even go further to expatiate on the authorities such other contracts of employment:

where the procedure for their determination as set out in the contracts has to be complied with to wit:

(a) As in the case in Tomlinson v. L. M. & S. R. (1944) 1 AER 537 which case has espoused the principle that where a collective agreement has been incorporated into a contract of employment that has set out the steps to be followed for its determination, failure to follow the steps gives rise to an action in damages for its breach; this is so even though the contract has been effectively determined. The employee has nothing more apart from his claim in damages; the principle has been integrated into our case law by the Ilodibia v. Nigerian Cement Co. Ltd. (1997) 7 NWLR (Pt. 512) 174.

(b) The case of Ridge v. Baldwin (1964) AC 40 seems to decide that where there is a failure to comply with the rules of natural justice in terminating the contract of employment of an office holder or i.e. where a tenure of public office attaches to a contract of service, that the dismissal is ineffective to determine the employment relationship and the employee is entitled to a declaration to that effect as well as damages and injunction may be granted; and

(c) In the case of expulsion of a trade union member in circumstances affecting his employment and membership of the union, the court has postulated as in the case of Taylor v. National Union of Seaman (1967) 1 WLR 532 to the effect that such employee is entitled to the benefit of the rules of natural justice as well as damages for breach of contract where the procedure for determining the contract was not complied with.

I have already dealt with the situation where a statute regulates dismissal and the procedure in determining the employment relationship is not followed – making the fourth procedure in this range. I think enough for the procedure for terminating contracts of employment.

I now go on to relate the foregoing principles of law to the facts of this matter guided otherwise by the issues raised by the parries in their respective briefs.

The appellants contended that the instant respondent’s contract of employment being a simple contract of master/servant relationship, devoid of any statutory flavour and not otherwise containing any special circumstances, having been rightly terminated by exhibit ‘D’, that is, the letter dated 14th (sic) June, 1994 as per page 456 of the record, that the court below had in error declared the said termination of the respondent’s appointment as null and void and so that the respondent should be reinstated. The court below had on the other hand agreed with the respondent that the contract had statutory flavour; that the 1st appellant was a creature of statute and superadded to these factors, the fact that the notice of termination of the contract by exhibit ‘D’ was fundamentally defective in a number of ways inconsistent with the procedure for terminating the said contract of employment with statutory backing and as per the Staff Handbook.

To consolidate this point, I think I should set out below one or two of the trial court’s pronouncements to that effect. At page 390 LL.14-16 the court below held:

“It is settled law that a contract of master and servant may be subject to either statute or common law rule of (sic) both.”

At LL.22-30 of the same page to 391 LL.I-3 it went on as follows:

“In this suit, the plaintiff was a public officer in the employment of a statutory body. The 1st defendant is incorporated under the Land Perpetual Succession Act of Nigeria. Regulation governing service in the 1st defendant is the Staff Handbook- exhibit ‘F’. The uncontradicted evidence before me is that the plaintiff was terminated without any query or warning. The onus is clearly on the defendants to show that it complied with the relevant provisions of the Staff Handbook exhibit ‘F’ before terminating the plaintiff’s appointment. The defendant has not discharged the burden.”

The foregoing abstracts leave no doubt as to the state of mind of the trial court on the said contract having statutory backing. It then proceeded to conclude that the said termination of the respondent’s appointment was therefore null and void and that the respondent should accordingly be reinstated.

This issue is the only serious issue taken in this matter and this appeal will fail or succeed on it. I think I should start my deliberation on the appeal by reference to an excerpt in the case of Union Bank of Nigeria Ltd. v. Chukwuelo Charles Ogboh (supra) at p.653 where the Supreme Court set out the guiding principles in circumstances as in the instant matter, that is to say that:

“Except in employment governed by statute wherein the procedure for employment and discipline including dismissal of employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner presented by the relevant statute and any other manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed only by agreement of the parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void.”

Against the backdrop of the trial court’s findings on this point as set out above the onus of showing that the instant contract of employment was backed by statute and so had statutory flavour and on the vexed aspect of non-compliance with the procedure for determining the contract before the trial court was squarely on the respondent who so alleged and definitely not on the appellants who did not so affirm.

It is a cardinal rule of pleading that the one who avers has to prove. See: Ehimare v. Emhonyon (1985) 2 SC 49; (1985)1 NWLR (Pt.2)177.In discharging this burden, the respondent had rested his case on sundry enactments to wit: Land (Perpetual Succession) Act, Cap. 98 (1958) and even on section 18(1) Interpretation Act, 1990 and sections 6(6)(b) and 33(1) and (4) of the 1979 Constitution as proffered in para. 1.02 of the respondent’s brief. And thus, with respect, has been shown a misconception of the import of contract of employment enjoying statutory backing and in the instant matter on whom lay the onus, that is, whose case would otherwise fail if no evidence was adduced on those issues.

The respondent’s attempt to rely on the provisions of the above-mentioned enactments to discharge the onus on him being off the targent was totally a non-starter. This is so, because firstly, the incorporation of an association of persons or body as the 1st appellant under the Land (Perpetual Succession) Act by vesting all lands or interests therein held by the association or body in trust for the association on the trustees as per section 2(3) is only to facilitate the acquisition and transfer of land on behalf of the association and it does not vest on the trustees any greater power than they might have had without it.

And secondly, in none of the said enactments was the procedure for the employment and discipline including dismissal of the respondent specifically ‘spelt out’. More significantly, none of the enactments specifically had given the respondent a status and a right to challenge any unlawful interference with that status in relation to the said contract of employment. It is therefore unsupportable and baseless to contend without more that just because the 1st appellant was incorporated under the said Act, it operated to alter the nature of the instant contract of employment, thus, showing it as having statutory flavour. The other enactments appear too far-fetched to be of any relevance to the immediate points canvassed here. They are otherwise in relation to this matter general provisions as against specific provisions and therefore of general application.

All the authorities relied upon by the respondent to buttress his argument in this respect become otiose and irrelevant. In the circumstances, the findings by the court below on the respondent’s termination of appointment having thus run aground could not have warranted the consequential order for the respondent’s reinstatement. I shall come to whether the instant termination can be declared as null and void based on the dictum in the Union Bank Nigeria Ltd. v. Chukwuelo Charles Ogboh’s case as quoted herein.

I may, however, have to subjoin at this juncture that if a party has purported to terminate a contract of employment, the court will grant a declaration that the contract still subsists only in rare and special circumstances, as where the employee enjoys of special ‘status’ or ‘office’ by virtue of a statute, which is not the case here. An examination of the Labour Act which has repealed and replaced the Labour Code Act and consolidated the law relating to labour has been adverted to having been incorporated into the Staff Handbook. It has no provision constituting any statutory backing to the instant contract of employment.

The respondent in his brief had been described as a public officer in a statutory body see p.399 LL.22-23 of the record. This connotes that the respondent was holding a public office. This added to the confusion in the matter. And I think it is a misnomer to apply that status to the respondent on the facts of the matter.

None of the three factors that must co-exist to constitute a public office namely that the office was created by the Constitution, statute or other enabling legislation, secondly that its function, duties and powers are as defined by law and other regulation; and thirdly, that the position must show some permanency: appear to be present here, i.e., as to the position of State Manager in the employ of the 1st appellant. In my comprehension, a public officer is one in the public services of the Government of the Federation or State and as defined under the heading ‘Public Services of the Federation’ or of the State as per section 277(1)(a), (b), (c), (d), (e), (f), (g) of 1979 Constitution.

Even moreso the 1st appellant, the respondent’s employer was not established by the Government of the Federation or State for that matter and the services rendered by the respondent even in its widest sense which was to be public at large, in the capacity of a State Manager in the employment of the 1st appellant had given no countenance to his claim of being a public officer or holding a public office. Besides, section 1.3 of exhibit ‘E’ quoted herein expressly excluded the application of public service regulations as to the relationship of the respondent and the 1st appellant. In sum, the respondent has woefully failed to show that his contract of employment had statutory backing and since he was not entitled as of right to the declaration sought in this suit his claims in this regard must fail. I shall come back to the effect for so holding, anon.

Having shown that the respondent’s contract of employment cannot on its facts be declared null and void as it was not inconsistent with any statute alleged to be backing it, it naturally follows that the relationship between the respondent and the appellants was one of simple master and servant determinable in accordance with the procedure set out in the Staff Handbook exhibit ‘E’ otherwise incorporated into the terms of their contract exhibit D. As I stated earlier if the employer wrongfully dismisses the employee either summarily or by giving insufficient notice, the employment is effectively terminated. Hence the respondent having commenced the instant action had taken his contract of employment as effectively ended and repudiated and so his remedy on the facts of this matter should speak only in damages in the event that the termination was wrongful. Just as the respondent was not entitled in a simple contract of master and servant relationship to be reinstated, his remedy speaks only in damages for wrongful dismissal (see: Tomlinson v. L. M. and S. R. (supra) and Ilodibia v. Nigerian Cement Co. Ltd. (supra).

The court, in any event will not enquire into the motive of the employer for terminating the employee. And so, in view of the alternative claim as per the statement of claim in this matter, the court below was obliged to consider from that perspective whether or not the respondent was so entitled to damages for wrongful dismissal. The court below was completely silent on the respondent’s alternative claim in damages. This has to be decried. The respondent neither appealed it nor filed a respondent’s notice for the decision of the court below to be affirmed on other grounds other than those relied on by that court. See: Order 3 rule 4(2) of Court of Appeal Rules. The respondent appears worse for it abandoned as it were high and dry. In the circumstances, the court’s hands are so to speak tied as its function starts and ends as an umpire and it is not supposed to descend into the arena for whatever reason to prop up a party’s flagging case.

The third issue has challenged the finding of the court below to the effect that as the office held by the respondent had not been filled since the termination of the appointment, it went ahead apparently so fortified to hold that the termination was wrongful. To put it bluntly, the court below had stated it thus:

“There is no evidence that the office held by the plaintiff has been filled, since his removal. The presumption though is that in such establishments an officer of a lower rank may be merely acting in that office. In light of all that I have been saying I hold that the appointment of the plaintiff has been wrongly terminated by the defendants.”

A careful perusal of the pleadings has shown that no such averment was pleaded by the parties. Nor as per the record was any evidence to that effect given before the court below. It is settled law that a trial court is not allowed to go outside the confines of the issues arising on the pleadings before it. See Overseas Construction Ltd. v. Greek Enterprises Ltd. (supra). Also, it must to be reiterated as in the case of Oniah v. Onyiah (1989) 2 SC (Pt. 1) 69 at 83; (1989) 1 NWLR (Pt.99) 514 para. 30-40 per Karibi-Whyte, J.S.C. that held that where it was otherwise, the court would be making a case for the parties by formulating its own case from the evidence and then proceeding to give judgment. See also Ochonma v. Unosi (1965) NMLR 321.

The court below acted in error for so abridging this clearly settled principle of law. However, it must be emphasized that in making the declaration as the instant one the court has discretion to exercise in such matters. It is settled that where a declaratory relief is asked for, the court will take the consequences into account in deciding whether to make the declaration. It can even impose terms if there was such need. But it is equally settled that where such exercise of discretion was made on an error of law as here or would or had occasioned a miscarriage of justice again as here it is incumbent on an appellate court to interfere with it. And I accordingly so hold that this is a proper case to interfere to vacate the declaratory order, the discretion having been premised on a wrong principle of law.

This concludes the issues raised in this matter. In the result, I uphold all the posers raised in the three issues in the appellants’ brief of argument. Therefore, the appeal is meritorious and is allowed.

The judgment of the court below is hereby set aside and the plaintiff/respondent’s claim is dismissed. I make no order as to costs.

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Other Citations: (2003)LCN/1498(CA)