Miss Yetunde Zainab Tolani V. Kwara State Judicial Service Commission & Ors (2009)

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SOTONYE DENTON-WEST, J.C.A.

Shun of Embellishment what is before this court for determination involves inter-alia a declaration of whether a marriage has been or has not been contracted between one Yetunde Zainab Tolani and some unknown petitioner who have never been visible nor seen throughout the scenario that led to the determination of her employment. Consequently, this appeal is against the Judgment of Honourable Justice A. A Adebara J. of the Ilorin High Court, Kwara State, delivered on the 15th day of January, 2007, in which the trial Court, inter-alia, held that the withdrawal of appointment of the appellant as a Magistrate Grade II on Grade level 10 with the Kwara State Judicial Service Commission was not unlawful and that the appellant is entitled to only damages and as such the appellant is not entitled to a re-instatement. He awarded the appellant one month salary in lieu of notice. Yetunde Zainab Tolani was employed as a magistrate grade II by the Kwara State Judicial Service Commission and she is hereinafter referred to as the appellant, whilst the Kwara State Judicial Service Commission is hereby referred to as the 1st Respondent in this appeal. The Honourable Justice Timothy Oyeyipo Chairman of the 1st Respondent is hereinafter referred to as the 2nd respondent whilst Mrs. Folalere as Secretary to the 1st Respondent is herein referred to as the 3rd Respondent. The last but not the least the Honourable Attorney General and commissioner for Justice of Kwara State is hereinafter referred to as the 4th Respondent.

The facts given rise to this appeal could be gleaned fully from the seasoned and well considered judgment of the Trial Court, the statement of claim, the pleadings filed by both parties and indeed the detailed submissions and addresses of both parties, including the exhibits.

The simple fact of this appeal is that the appellant having been considered fit and qualified after an interview conducted by the 1st respondent, the appellant was employed as a Magistrate Grade II on salary Grade Level 10 vide the letter of 23rd day of December, 2004 tendered as (Exhibit 1) in the Lower court Consequently, the appellant immediately without delay accepted the appointment as required by Exhibit I vide the appellant’s letter of 24th day of December, 2004 (Exhibit 2) and the appellant accordingly assumed duty on the 2th day of December, 2004.

The 1st, 2nd, and 3rd Respondents forwarded a petition letter dated 31st day of January, 2005 (Exhibit 10) written by one Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin to the appellant for her reaction. In brief, the petition written by Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin alleged that the appellant lied about her marital status and misrepresented herself as a single lady whilst she was already married in her bid to secure employment with the 1st Respondent.

In reaction to the alleged petition which was tendered in the Lower court as (Exhibit 10), the Appellant In response in a letter dated 31st January, 2005 (Exhibit 4) categorically denied being a married woman as at the time of her employment with the Kwara State Judicial Service Commission.

In his petition, the petitioner concluded in (Exhibit) 10, that he was “looking forward for an immediate action” from the Kwara State Judicial Service Commission. Consequently, the 1st, 2nd, 3rd and 4th Respondents reacted immediately to the purported petition and within a period of eight days, the Respondents withdrew its letter of employment and terminated the appointment of the Appellant from the Kwara State Judicial Service Commission vide the letter dated 8th day of February, 2005 tendered as (Exhibit 5).

Despite the appeals and protests by the appellant vide Exhibits 6, 7, and 8, the Kwara State Judicial Service Commission refused to further employ the Appellant who was accordingly terminated with effect from 11th day of February, 2005. All the Exhibits referred to shall at the appropriate time be adumbrated upon in the course of this judgment.

Consequent to this termination, the appellant was obliged to take out a writ of summons against the respondents in the Lower Court. The crux of the appellant’s claim could be gleaned from paragraph 19 of the statement of claim although the totality of the statement of claim was fully reflective of the issues in controversy and detailed facts thereof. However, for the purposes of this appeal, I hereby reproduce the salient paragraph 19 of the claim which goes thus:

“19, where of the plaintiff claims against the defendant jointly and severally as follows:

1. A declaration that the purported “withdrawal” (termination or dismissal) of the plaintiff appointment as Magistrate Grade II on Grade Level 10 with the 1st defendant by the Defendant through I their letter of 8/02/06 is without any justification known to law, unlawful, altra vires, illegal, oppressive, uncivilized vicious, unconstitutional and null and void and of no effect.
2. 1(a) a declaration that the purported withdrawal of the plaintiff appointment as Magistrate Grade II with the 1st defendant by the defendants is a gross violation of the plaintiff’s right to a hearing in accordance with rules of fair hearing and civilized hearing.
3. An order of the court setting aside the defendant’s letter dated 8/02/08 purporting to withdraw the plaintiff’s appointment as Magistrate Grade II with the 1st defendant.
4. A declaration that he plaintiff is still a Magistrate Grade II on Grade Level 10 in the employment of the 1st defendant and she is entitled to be paid salaries, allowances and all entitlements appertaining to and due to the office of a Magistrate Grade II with the 1st defendant.
5. An order reinstating the Plaintiff to her position as a Magistrate Grade II with the 1st defendant with effect from 27/12/04.
6. An order of injunction restraining the defendants their servants, agents and privies and other person(s) claiming through or under and or succeeding the defendants from unlawfully and unconstitutionally, Withdrawing, terminating and or inducing the commission of the breach, of the plaintiff’s appointment as Magistrate Grade II with the 1st defendant. Dated this 11th day of May, 2005″.

As earlier stated, even though part of the judgment was in favour of the Appellant but the judgment in the appellant’s views did not seem to address all the claims in the said writ claim, hence the appeal filed to this court which came up for hearing on 20/10/08. In this appeal, the Appellant’s counsel, Mr. Salman Jawondo filed the appellant’s brief dated the 10th day of January, 2008 on same date. He adopted his brief as filed and prayed the court to allow the appeal. By way of adumbration, he referred the Court to the case of Attorney General of Cross River State and 2 Ors vs Chief Patrick Okon (2007) All Federation weekly Law Report (Pt. 395) 370 at Pg. 387.

Mr. J. A. Mumini, the DPP of Kwara State, of counsel to the respondent also had a brief dated the 19th day of May, 2008 which was deemed properly filed and served by order of Court on 20th October, 2008. He adopted the said brief on behalf of the Respondent and conceded that the appellant is entitled to damages because the reason for the withdrawal of the Appellant is contrary to law. However, he urged the court to also dismiss the appeal.

What I may ask is this reason? It is better to proceed and see this reason than declare same now which would become obvious as we progress in the judgment.

At this point I must observe that the concession of J. A. Mumini of DPP of Kwara State in my estimation is that of a mature mind though he is a prosecutor, he is not a persecutor. He as OPP is ready to do his duty but at the same time he fights for the course of justice which is the Hall Mark of a Good Advocate for indeed all hands must be on deck to ensure that justice is not only seemingly done but must be seen to be done and in place. Every advocate must fight for justice at all times even if it does not attract pecuniary reward or other perquisites for the Advocate. I therefore congratulate J.A.Mumini for his courage in this wise.

THE ISSUES FOR DETERMINATION

The Appellant submits the following issues for determination.

1. Whether or not the Lower Court was right in holding that the Appellant’s employment is not clothed with statutory flavour and she is therefore not entitled to re-instatement because the termination of the Appellant’s appointment by the Respondent is not unlawful, and she is entitled to damages.
2. If the answer to issue No. 1 above is in the negative, whether or not, having regard to the fact that the appellant was employed as a magistrate Grade II on Grade Level 10, the learned trial judge was right in awarding the appellant one month salary in lieu of notice.

Whilst support the two issues formulated for determination, I am of the view that the crux or the kernel of the circumstances that led to the existence of the termination of the Appellant in it vis-a-vis her, employment is her marital status and indeed her termination was due to that fact. Her marital status is not properly addressed but is swept under the carpet whilst there was preoccupation with employment that is either clothed with statutory flavour or otherwise because of the issue of withdrawal of her appointment by the Respondent being wrongful and not unlawful.

The very basis of why the 1st Respondent had a grouse with the Appellant is due to the very fact that there was a petition written against her by one Lukuman Salman to the 1st Respondent to the effect that the Appellant is a married woman. Is she a married woman? Had she lied about her status to her employers? Does her status affect her employment?

The 1st Respondent through the 3rd Respondent sent a copy of the petition to the Appellant and requested her to respond to it within 48 hours. She not only responded indicating that she is neither married nor had ever been married to any body, her father Alhaji Lamidi Tolani also buttressed her response by forwarding of a letter and also a sworn affidavit about the marital status of his Daughter to the same effect when he deposed inter-alia in these words.

“1. That Miss Zainab Yetunde Tolani is my direct daughter and who lives with me up till the moment.

2. That I have not given her out in marriage to any Lukman Salman or any man what so ever.
3. That I have never collected any dowry or bride price from the said Lukman Salam or any man whatsoever for my daughter.
4. That I confirm she remains a spinster and not in any way married.
5. That my daughter has not contracted any marriage whether under statutory customary or Islamic Law.”

Despite the Appellant’s presentations of her marital status as being a single lady which status was confirmed by her father in his own representations and even an Affidavit evidence, the Respondents chose to ignore same and without given her an opportunity to confront headlong the writer of the petition believed in the genuiness and truth of the allegations and accordingly proceeded to terminate the promising career of the young magistrate on the bench, and indeed terminated her appointment.

Furthermore, the Appellant’s right to private family life and honour was thus affected by this Singular act of the respondents, believing in the petitioners’ allegations that the appellant is a married woman. Her Constitutional Rights to private family life and enjoyment was thus subject to being breached by the respondents. This subjection of the Appellants’ privacy to spurious petitioners whose aim might be to ridicule her was not intended in the 1999 Constitutions and the universe declaration. The Appellant was protected under article 17 of the Universal Declaration of Human Rights of the United Nations’ General Assembly 1948, wherein inter-alia it is provided thus:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks”.

In conjunction with the provision of privacy is the provision inter alia that “marriage must be entered into with the free consent of the intending spouses.”

This is specifically provided for in Article 10 of the Universal Declaration of Human Rights the United Nations General Assembly 1948. All these rights of the petitioner were not taken into cognizance when the big stick was unleashed on her despite the fact that the declaration stipulates that the widest possible protection and assistance should be accorded to the family which is the natural and fundamental group unit of the social norm particularly women and children.

The petitioner’s livelihood is terminated because of the perceived notion by her employer that being married she ought to have changed her name to reflect her presumed husband name and not only that she also ought to have declared herself as “Mrs” and not “Miss” because they did not believe that she was not married whilst she claimed to be single and answer or bear her father’s name this was subject to termination of her employment. Would this same measure be applicable to a male if a woman or indeed a faceless woman petitioner claims that the Appellant if she were a male is her husband? The answer surely may or would be in the negative. Therefore why this discrimination against women. Are women not free to bear their names or even their father’s names? In any case, what is the use of truncating their professional career on this issue? Many of these women have been subject of discrimination until recently when institutions become more aware that there should be no discrimination against women as provided for under section 42 of the 1999 Constitution of the Federal Republic of Nigeria with particular reference to section 42 (1) (a), (b) and (c) which provides as follows:

“42(1) a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only he is such a person.

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject, or

(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, and places of origin, sex, religions or political opinions.”

I am a strong advocate of the protections granted to the citizen under our laws especially the constitution and any breach of constitutional provision against a citizen’s rights shall in my view collapse like a pack of cards. See TIMOTHY -VS- OFORICA (2008) 9 NWLR PART 1091, PAGE 204 – 213. Where the Court of Appeal in a unanimous decision held inter-alia that no law – or custom that stands in the way of our constitution should be allowed to stand tall no matter the circumstances.

The approach of the Apex Court which doubles as our constitutional court in Nigeria has in a plethora of decisions laid down the functionality of the constitution in the lives of the citizenry. Sir UDO UDOMA, JCA, declared in NAFIU RABIU -VS- THE STATE (1981) 2 NCLR 293 AT 326 thus:

“… the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our general communities must involve, ours being a plural, dynamic society and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as not to defeat the principles enshrined in the Constitution … this court should whenever possible and in response to the demands of justice, lean to the broader interpretation …. It is my view that the approach of this court to the construction of the constitution should be and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quarh pereat.”

The first issue for determination as canvassed by the Appellant is “WHETHER OR NOT THE LOWER COURT WAS RIGHT IN HOLDING THAT THE APPELLANT’S EMPLOYMENT IS NOT CLOTHED WITH STATUTORY FLAVOUR AND SHE IS THEREFORE NOT ENTITLE TO RE-INSTATEMENT BECAUSE THE TERMINATION OF THE APPELLANT’S APPOINTMENT BY THE RESPONDENT IS NOT UNLAWFUL, AND SHE IS ENTLED TO DAMAGE.” In submission in respect of this issue, the Appellant’s counsel Mr. Jawondo submits inter-alia that the lower court was in serious error to have held that the Appellant’s employment is not clothed with statutory flavour. He contended that the trial court should have placed reliance on the authority of IMOLEMO -VS- WEST AFRICAN EXAMINATION COUNCIL. (1999) 9 NWLR (PT. 265) 303 in its judgment, but failed to do so even though the trial court referred to the case which is supportive of an employment.

It is the contention of the appellant that the said letter dated 8th day of February, 2005 (Exhibit 5) does not exist and that it is only a fabrication of the Respondents. The existence or no existence of this letter of termination of appointment is very germane to the consideration of the issue of statute barred, so much so that if the letter exists the action is admittedly statute barred. In the learned counsel’s opinion, if it does not exist, the case of the Appellant would be sound and she would not be entitled to any dismissal or termination of employment. The learned court stated the law correctly on the meaning of employment with statutory employment when it referred to the case of IMOLEMO V WEST AFRICAN EXMAINTION COUNCIL (1999) a NWLR (Pt. 265) 203 at 317 “Per Karibi-Whyte JSC. Thus:

“There is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant”. They accordingly enjoy statutory flavor”

But it is submitted that the Lower Court did not apply the law and the definition of “employment with statutory flavour” as stated in the case of IMOLEMO V WEST AFRICAN EXAMINATION COUNCIL (WAEC) (Supra) when it held that the Appellant’s employment is not clothed with statutory flavour. In this submission he refers us to the Appellant’s issues which were referred to as the two vital ingredients. While it is conceded that two vital ingredients that must co-exist before a contract of employment can be said to import statutory flavour are: firstly, the employer must be a body set up by the constitution or statute. And secondly and finally, either the statute or regulations made pursuant to the constitution or principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned especially in matter of discipline. To the learned counsel the two ingredients are presented in the employment of the appellant. He also cited and relied on section 197 and part II of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria by virtue of which the 1st Respondent is vested with the power to appoint, dismiss and exercise disciplinary control over its staff including Magistrates.

The Appellant’s counsel therefore submitted that the respondent’s contention – that the Appellant’s employment is that of master and servant is not tenable as it attracts statutory flavour. The learned counsel for the Respondent in response urged the court to confine itself to the terms and contract of service between the parties. He cited and relied on ADEGBITE V COLLEGE OF MEDECINE UNILAG (1973) 5 SC 149; NPMB V ADEWUNMI (1972) 1 ALL NLR (Pt. 2) INT DRILLING W. VS AJIJALA (1976) 2 SC 115; SULE VS NCB (1965) 2 NWLR (Pt. 17) SHITTA-BEY V FSCC (1998) 12 NSCC 28; 6522 NWLR (Pt. 80) 25 OLANIYAN V UNILAG (1985) 2 NWLR (Pt. 9) 599.

He submits finally on this issue that the position of the Appellant is inadmissible because the 1st Respondent herein being a creation of statute or the Constitution does not elevate all its employees, the Appellant inclusive, to that status or the statutory employee that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour. The learned counsel for the Respondent urges us to hold that the Appellant claim is not tenable. On issue 1, the learned counsel to the Appellant submits that by virtue of the Third schedule to the 1999 constitution of the Federal Republic of Nigeria, it is clear that the Appellant’s employment is clothed with statutory flavour. The learned counsel to the Appellant cited the case of E.P IDERIMA VS RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 S.C (Pt 11)135 at 151 and referred this court to the following as postulated by Supreme Court. In the above excerpt, the trial court appears to have lost sight of the fact that in the law of master and servant, employment falls into three categories Viz:

i. A pure master and servant relationship under common law;

ii. Employment w1ere (sic) officers is held at pleasure

iii. Employment protected by statute.

The learned counsel to the appellant further cited the cases of RIDGE VS BALDWIN & ORS (1964) A.C 40, OLAREWAJU VS AFRIBANK (NIG) PLC (2001) 7 S.C (Pt. 111) 1, (2061) 13 NWLR (Pt. 731) 691 at 705, OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599. The learned counsel submitted in the instant case that since the appellant’s employment is governed by the Civil Service Rules, her employment comes under the 3rd category. That is to say, the employment is protected by statute or employment with statutory flavour. He cited the following case to back up his submission: UNIVERSITY OF CALABAR VS INYANG (1993) 5 NWLR (Pt. 291) 100 at 117; SHITTA-BEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC (Reprint) 26; (1981) 1 SC. 40 at P. 56.

Rounding up his argument on issue 1, the Appellant’s counsel submitted that the Appellant was not given the right to fear hearing. He submits on this issue that it is a cardinal principle of our law as enshrined in section 33 of the 1999 constitution that the parties to a dispute must be accorded the right to a fair hearing meaning that a panel should be constituted in a manner as to ensure its independence and impartiality.

He submits further on this issue that the Supreme Court has settled the law on what an employer needs do to satisfy the regime of fair hearing before dismissing an employer’ Summarily, he cited the case of YUSUF VS UNION BANK (NIG) PLC. (1996) 6 NWLR (pt. 45) 632 that to satisfy this requirement a person likely to be affected by disciplinary proceedings against him to enable him make a representation in his own defence.

Even though Mr. Mumini concedes that there is reason why the Appellant ought to be paid damages, the Counsel for the Respondent while arguing issue 1 of the Respondent’s issue for determination and further response on issue 1 of the Appellant, he argues that the Appellant pleadings in paragraph 9 only obliquely complaining about the alleged non-observance of fair hearing in her case, the main issue canvassed therein according to the learned Respondent’s counsel is the accusation of malice and bad faith. He argues further on this issue of the breach of the Appellant’s right to fair hearing is that a person is heard before being punished on an allegation. He submits that the Respondent has established that the Appellant was given adequate and ample opportunity to clear herself from the allegation.

In resolution of this issue 1, I would have recourse to the epoch decision of the Supreme Court in the decision of OLANIYAN -VS- UNIVERSITY OF LAGOS, (1985) ALL NLR 363, where the Apex Court defined employment with statutory flavour, In Olaniyan’s case, the Appellants who were all professors at the University of Lagos appealed to the Supreme Court from a decision of this court, Lagos Division. The Appellants instituted an action against the respondent in the Lagos High Court. The High Court ruled in favour of the Appellants declaring their purported termination ultra vires. However when the case went on appeal to the Court of Appeal, this court reversed the Judgment of the Lagos Court, on Appeal to the Apex Court, the court in a Unanimous decision refused to give a nod to the decision of the Court of Appeal and in reversing the decision of the Court Appeal held inter-alia that to remove a public officer in flagrant contravention of the rules governing him, whether under contract or under provisions of statute or regulations made there under is to act capriciously and to destabilize the security of tenure of public servant, frustrate his hopes and aspirations and thereby the government and the well being of society is tardy and affected.

In like manner, the Appellant in the instant appeal is involved in public duties of serving as a Magistrate appointed by the Kwara State Judicial Service Commission to all intents and purpose is a public servant who is removed in a flagrant contravention of the rule governing her appointment, which though not defined to her at the time she was appointed, it is however clear that the 1st Respondent being a creature of the Constitution, is indeed a statutory organization and the Appellant’s employment is liable to enjoy a statutory flavour more especially as the officer concerned is also a senior officer within the cadre of the officers appointed by the 1st Respondent. See Section 197, PART II of the third Schedule to the Constitution of the Federal republic of Nigeria and also Section 318 of the 1999 Constitution stipulates that a magistrate is a senior Public officer.

OPUTA JSC delivered the lead judgment in the Supreme Court, calling in aid an earlier decision of the Court in SHITA BEY VS FEDERAL REPUBLIC SERVICE COMMISSION and declared that the Professors (Appellants) did not hold their officers at the pleasure of anybody, but by virtue of the University of Lagos Act No.3 of 1967. Rather, since the regulations, governing the Service of senior staff in the University, and the memorandum governing service of senior staff in the University and the University all derive from the Constitution, they all have constitutional force and they invest in the Appellants, over whom they prevail, legal status, which make their relationship with the Relationship with the Respondents, although one of master and servant, Certainly beyond the ordinary or mere master and servant relationship. It is, the supreme court declared one of a master and servant relationship, with a statutory flavour. And thus, conferring legal status on the Appellant.

Contributing to the decision of the Court, Aniagolu JSC placed emphasis on the issue of natural justice and condemned the University Council for its failure to give the Appellants a fair hearing. To him, procedure adopted by the Council may be quick, convenient and time saving, but the dictates of justice demand that the legal principle of audi alteram partem must be obeyed, no matter how cumbersome and inconvenient it may appear to the Court.

Furthermore, the contention of whether the appellant was given or not given fair hearing is in itself very fundamental issue that would need the consideration of the court. The Respondents it was stated issued her query to respond within a specified period to the issues raised in the petition and without granting opportunity to confront the petitioner or even direct access to the respondents especially the 2nd respondent. Further they refuse even to believe her and her sole witness who did by virtue of his position as her father deposed even on oath to the fact that his daughter is not married nor had been married to anybody including the spurious petitioner. Rather than hear her out, the respondents chose to deliver their verdict on the petition by an immediate withdrawal of her employment. Would this attitude amount to fair hearing? The right to fair hearing is one of fundamental rights provided under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. On no account can this right be waived or statutorily taken away, even at the expense of speedy trial.

In ABUBAKAR -VS- YAR’ADUA (2008) 1 SCNJ 549 AT 574, the Supreme Court per NIKI TOBI, JSC said:

“Court of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing in the sense of availing the parties, as in this appeal, the right to administer interrogatories. A party who is entitled in law to administer interrogatories and is denied that right is denied the right to fair hearing. And when I say that, I am not oblivious of the law that speedy hearing is one vocal and important aspect of fair hearing. The point I am struggling to make is that as interrogatories, is not fair as it runs contrary to the constitutional principle of fair hearing.”

See also CHIGBU V. TONIMAS (NIG.) LTD (1993) 3 NWLR (Pt. 593) 115 CA; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290 at 305 SC; AWONIYI V. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIGERIA) (2000) 6 SC (Part I) 103; ARALA V EKEAGWI (2001) 5 WRM 1 SC.

Therefore where there is a breach of the principle of fair hearing, any decision arrived at would be cut down notwithstanding that the conclusion would not have been any different if the principle had been adhered to. See MIKA’ILU V. STATE (2001) 5 WRN 74 AT 80 CA.

I am not however unaware that this is not a fundamental rights proceedings although there are breaches of the fundamental rights provisions of the appellant which I find difficult to gloss over, despite the decision in EGBUONU VS B.R.T.C. (1997) 12 N.W.L.R. (Pt. 531) 29 at 31 wherein the Supreme Court held that an action based principally on dismissal of employee cannot be brought under Fundamental Rights (Enforcement Procedure) Rules. However it is the same court in its wisdom and its later decision that also said that the Fundamental Rights of the individual cannot be alienated, waived or statutorily taken away.

In view of the foregoing and from the parties submissions and cases relied upon I am constrained to hold that issue I succeeds because it is very clear even for a blind man to see that surely the position of a magistrate is a public office that enjoins and attract statutory flavour for indeed the 1st Respondent is a baby of the constitution vide the constitutional provision is section 197 and part II of the third schedule to the constitution of the Federal Republic of Nigeria 1999.

ISSUE 2

“IF THE ANSWER TO ISSUE NO. 1 ABOVE IS IN THE NEGATIVE, WHETHER OR NOT, HAVING REGARD TO THE FACT THAT THE APPELLANT WAS EMPLOYED AS A MAGISTRATE GRADE II ON GRADE LEVEL 10, THE LEARNED TRIAL JUDGE WAS RIGHT IN AWARDING THE APPELLANT ONE MONTH SALARY IN LIEU OF NOTICE.”

On issue 2, the learned counsel for the Appellant contented that the withdrawal of appointment of the Appellant as Magistrate Grade II by the Respondents is unlawful not just wrongful as held by the learned trial judge. The learned trial judge having held that the respondents failed to prove the reason given for the withdrawal of the appellants’ appointment and that the provision of section 72 of Kwara State Judicial Service Commission Regulations 1980 do not avail the respondents since marital status is not a criterion or condition for appointment as a magistrate thereby implying in effect that the appellant did not obtain her appointment by making false statement or concealing any material fact which if disclosed would have militated against her being offered that appointment.

It follows therefore the withdrawal and the termination of the Appellant’s appointment is a contravention of the Regulations and therefore unlawful. He submits further on this issue that the learned trial judge also found that allegation of non-disclosure of marital status leveled against the Appellant and for which her appointment was withdraw on the basis an allegation of perjury having regard to the declaration in Exhibit 9 and that the Respondents failed to prove or substantiate the allegation. Having found so, the counsel to the Appellant submits that the withdrawal of the appellant’s appointment on the basis of the unproved and unsubstantiated criminal allegation of perjury is both wrongful and unlawful.

On issue 2, the learned counsel to the Respondent urges us to hold that having regarded to the nature of the Appellant’s employment, the learned trial judge was right in awarding the appellant one month’s salary in lieu of notice. He submits further that having argued that the Appellant’s appointment does not enjoy statutory flavour, the measure of damages recoverable by the Appellant is prima facie the amount the Appellant would have served during the period necessary for the lawful termination of the contract of employment. The learned counsel for the respondent cited and relied on the case of KATTO VS CBN (1990) 6 NWLR (Pt.607) 390 at 406. The Supreme Court restates an illuminating position of the law when it said “In ordinary contracts of employment where the terms provide for one’s notice before termination or salary in lieu there, the only remedy an employee who is wrongfully terminated can get is one month’s salary in lieu of notice and any other legitimate entitlement due to him at the time, the employment was brought to an end” (WESTERN NIGERIA DEVELOPMENT CORPORATION VS ABIMBOLA (1966) 4 SSCC 172.

He submits finally on this issue that the conclusion of the learned trial judge gave proper consideration to the status of the Appellant’s appointment and the number of days she has put into service which was just 47 days before her appointment was terminated, He submits further on the issue that even in an employment clothed with statutory flavour as in the civil service of the Federation and the State, an employee is entitled only to 3 months in lieu of notice. He maintains that it follows therefore that the argument of the Appellant in her brief of argument that she is entitled to Twelve month salary in lieu of notice is most ridiculous. The learned counsel for the Respondent urges that the Appellant having failed woefully to establish her case before the trial court leaves the lower court with no option than what it had done in the circumstance. He concludes and urges your lordships to resolve the issue in favour of the Respondent He further urges your Lordships to ignore or discountenance with the arguments of the appellant in her brief of argument and dismiss the appeal on two grounds Viz.

That the Lower Court was right in holding that the appellant’s employment is not clothed with statutory flavour and that she is therefore not entitled to reinstatement and that having regarded to the nature of the Appellant’s employment, the learned trial judge was right in awarding the appellant one month’s salary in lieu of notice.

In the second limb of his argument of this issue, the learned counsel to the Appellant submits that the case of the Appellant is meritorious one because it is not in dispute that the Appellant as a Magistrate Grade II on Grade Level 10 is a Senior Officer of the Public Service of Kwara State employed by the Respondent which is a creation of the constitution. He submits that the office or position of a magistrate is a creation of the combined effect of the Provisions of section 197 of the 1999 Constitution and Part II of the Third Schedule thereto; Sections 4 and 8 of the Criminal procedure code law cap 43 laws of Kwara State 1994. The office of a permanent nature with its functions duties and powers defined by Sections 9, 10, 12 (1) 13, 15, 16 17 and 18 and appendix (A) to the Criminal Procedure Code Law of Kwara State Cap 13 Laws of Kwara State 1994. The office of a magistrate is therefore a public office as defined by section 318 of the 199 constitution of the Federal Republic of Nigeria. He refers to the REGISTERED TRUSTEES OF THE PLANNED PARENTHOOD FEDERATION OF NIGERIA & ANOR VS DR. JIMMY SHOGBOLA (2005) 1 WRN 153 at 171-172 “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” A public officer is one in the public service of the government of the Federal or State and as defined under the heading “Public Service of the Federation” or if the State as per section 277 (1) (a) (b) (c) (d) (e) (f) (g) of 1979 Constitution.

He further submits that since the Appellant is a senior public official, and in the absence of specific provisions in Exhibit and or the Kwara State Judicial Service Commission regulations 1980, prescribing one month salary in lieu of notice awarded the appellant the learned trial judge is ridiculous in the circumstances of the case. The learned counsel for the Appellant urges their Lordships to hold that the lower court was wrong in awarding as damages against the Respondent and in favour of the Appellant one-month salary in lieu of notice. He pleads their lordships not only for re-instatement of the Appellant but also prays the court to award the twelve months salary in lieu of notice on the basis of unproved and unsubstantiated allegation fabricated by the evil-minded, faceless and unidentified person in the Kwara State Judicial Service Commission.

The Appellant finally prays the court to allow this appeal and order the reinstatement of the Appellant and award her twelve months salary in lieu of notice.

The trial court duly evaluated the pieces of evidence here and there very well and indeed married the facts in his consideration of the various authority cited. The judgment itself is in favour of the Appellant in the sense that the learned Justice Adebara on page 124 of the record in his judgment said:

“Taking all the above into consideration, particularly regarding the status of the claimant as a Magistrate Grade II and the length of service which according to the claimant was 47 days before her appointment was wrongfully terminated, it is my humble view that one month notice or one month’s salary in lieu of notice is reasonable as the length of notice for the employee of the statue of the claimant. I therefore hold that the claimant is entitled to one month salary in lieu of notice from the 1st defendant. It is ordered that same be paid to her. Also, since the claimant actually worked for 47 days as borne out by the evidence before me between the period of 27/12/04 when she assumed duty up to the period of 11/2/2005 when her Appointment was wrongfully terminated, I hold that her salary and allowances for the said period is her legitimate entitlement which she is entitled to and which ought to be paid to her by the 1st defendant. I order accordingly.

In the light of all the above, relief sought by the claimant succeeds only to the extent that the termination of her appointment by the 1st defendant is declared wrongful. Reliefs 2, 3, 4 and 6 fails and are hereby dismissed. Relief NO.5 succeeds only to the Extent that the 1st defendant is ordered to pay the claimant her salaries, allowances and other entitlements for the period of 27/12/04 up to 11/2/2005 for which she legitimately worked before her appointment was wrongfully terminated. It is also ordered that the 1st defendant pay to the claimant one month’s salary in lieu of notice being the reasonable length of notice the claimant would have been entitled to bring her contract of employment with the 1st defendant to an end.”

This decision was reached as I said after a due consideration by the trial Judge of the facts and authorities. However for the sake of brevity, I would hesitate to review case by case relied upon by the parties or even the trial court for I am an avowed believer of substantial justice and not legalistic justice that plays and toys merely around decided cases. The courts are leaping more towards substantial justice rather than technical justice.

See OLANIYAN -VS- UNIVERSITY OF LAGOS SUPRA

As I said the judgment thoroughly viewed and appreciated the case of UNION BANK OF NIGERIA LTD -vs- OGBOIL (1995) 2 NWLR (PT. 308) 467 AT 664 is apt and applied it to the determination of the case in the lower court. He distinguished this base with the case of IDERIMA -VS- RIVERS STATE CIVIL SERVICE COMMISSION (2005) 7 SC NJ 493 AT 504 on which he says the claimant relies and posited that the case was inapplicable to the instant case – because in IDERIMA’S case, the respondent did not comply with rule 04107 of the Civil Service Commission Rules before the appellant was dismissed and considered that in the present case, the claimant/appellant has not alleged any breach of the Kwara State Judicial Service Regulations.

This assertion is laughable for indeed if there was no breach committed by the respondent especially the 1st respondent then the appellant would have no cause to resort to the court that eventually led to this appeal. In fact the trial judge in the judgment itself noted that the respondent has the right under Section 28 of the Kwara State Judicial Service Commission Regulations 1980 to terminate the employment of the appellant. Please I shall again indulge in quoting him thus:

“The question now is whether the claimant employment was properly determined by 1st defendant. For the purpose of finding an answer to this question, one will have to turn to exhibit ‘5’ which is the letter by which the claimant employment was withdrawn.

It has been stated that the appointment of a civil servant can be determined at any time subject to the civil service procedure. But where no special procedure is contained in the Condition of service of a public servant, such a servant employment can still be determined with or without notice while the employer will be liable to pay only the arrears of salary which might have accrued to the servant as at that date. See ADEDEJI VS POLICE SERVICE COMMISSION (1968) N.W.L.R. 102; HEAD OF F.M.G. VS PUBLIC SERVICE COMMISSION (1974) 11 S.C. 79; SHITA-BEY VS FEDERAL CIVIL SERVICE COMMISSION (1981) 1 S.C. 40.

In the instant case, it has been submitted on behalf of the defendants that 1st defendant itself initiated the procedure for the withdrawal of employment of the claimant. Yes, the 1st defendant has the right to do so under section 28 of the Kwara State Judicial Service Commission Regulations 1980. The 1st defendant exercising its aforesaid power thereafter wrote exhibit 5 to the claimant withdrawing her appointment. This withdrawal in my view is akin to termination of claimant’s appointment. I am unable to agree with the claimant’s counsel submission that it amount to a dismissal. He said no notice was given to the claimant and that the determination was immediate. This submission is not true as the claimant appointment was withdrawn vide a letter dated 8/2/2005 with effect from 11/2/2005. It is therefore not with immediate effect. I hold that a notice of about three days was given. The mere fact that it was not stated in exhibit 5 that the claimant is entitled to her arrears of salary and benefits will not detract from the fact that their withdrawal of her appointment is a termination and not a letter of withdrawing the appointment of the claimant, it was stated that the claimants appointment was withdrawn on the ground that she failed to exonerate herself of the allegation of misrepresenting her marital status as alleged in the petition of one Abdulrasaq Tunde Raji (Exhibit 10) It is therefore clear and safe to conclude that the claimant’s appointment was terminated by the 1st defendant on the alleged ground that the claimant lied or misrepresented her marital status in that she represented to the 1st defendant in her appointment form (exhibit 9) that she was single whereas she was married.”

Again shun of embellishments, the issue that triggered off the withdrawal of appellant’s appointment is none other than that of alleged misrepresentation of her martial status. Allegations’ pertaining to this marital status is actually the immediate and remote cause of the appellant’s removal as a magistrate. It is for this reason that recourse was alluded in this judgment to the fact that the Appellant’s fundamental human rights breach of her rights to private family life and consequent discrimination she suffered as a woman meted out to her by the respondents especially the 1st and 2nd respondents wherein they refused to believe her and chose to believe the spurious petitioner. See IDERIMA -VS- RIVERS STATE CIVIL SERVICE COMMISSION SUPRA.

Consequently, the courts guard these fundamental human rights very jealously. Therefore law or Act that is perpetrated against the provisions of the fundamental rights of any individual which is against the spirit of the constitution would not be allowed to stand. The spirit of the constitution must stand firm at all times and to ensure that this is done, the superior courts have constantly held in a plethora of cases that the human rights of the individual should on no account be subsumed or swept under the carpet in favour of other laws no matter how well pivoted that law may be. See NASIRU BELLO & ORS VS A. G. OYO STATE (1986) 5 NWLR (PT. 45) 828.

ATTORNEY GENERAL OF CROSS RIVER STATE & 2 ORS VS CHIEF OKON (2007) ALL FEDERATION WEEKLY LAW REPORT (PT. 395) 370; TIMOTHY VS OFORKA (2008) 9 NWLR PART 1091 PAGE 204; W. A. E. C. VS AKINKUNMI (2008) 9 NWLR PART 1091 PAGE 151; NAFIU RABIU VS STATE (1981) 2 NCLR 293; MOHAMMED VS OLAWUNMI

(1990) NWLR (PT 133) 458;

In NASIRU BELLO -VS- A. G. OYO STATE (SUPRA) where the intervention of the Supreme Court was sought in relating to the deprivation of one of these rights. The appellant in the case had been convicted of armed robbery and sentenced to death by the High Court of Oyo State under the Robbery and firearms law applicable in the State. The convict filed an appeal before the Court of Appeal. However, while his appeal was still pending, his execution warrant was signed by the State Governor upon the advice of the State Ministry of Justice. Consequently, he was executed although his appeal had not been heard and determined. The convict’s dependants including his parents, wives and children instituted the action and argued, inter alia, that the action of the State Government was unconstitutional in that it violated the convict’s right to life, and the right to have his appeal heard as guaranteed by section 220(1) of the 1979 constitution.

Although the issues canvassed in this case were novel, the Supreme Court unanimously declared the action of the government illegal, unlawful and unconstitutional. The Court pointed out that by the action of the government, the deceased had not only lost both his rights to life and his right to prosecute his appeal, his dependants had been unjustly deprived of the benefits of the life of their breadwinner.

In this instant appeal, the appellant has also lost her means of livelihood and her human dignity arising from this spurious accusation.

Has anybody ever stopped to imagine the trauma of the Appellant throughout the course of this scenario that led to this appeal? What is her feeling, now in respect of her marital status? Has justice indeed been granted her? What about a possible reoccurrence of such an attitude by another in her future endeavour if the facts here are not put into proper perspectives.

I am emboldened to do all the necessary justice within my scope in this appeal since as it were counsel are AD-Idem. Therefore in my view the Appellant’s marital status as enshrined in our domestic laws with special reference to the 1999 Constitution of the Republic of Nigeria and particularly since we are a nation amongst the committee of nations, I am of the view that her marital status rights as protected by International Human Rights domiciled laws as applicable to this country ought to be reflected in this appeal, otherwise the appellant may still be deprived of fundamental justice.

For the benefit of the appellant and many other women who are constantly subjected to this type of discrimination. I seek to refer to some salient provisions of International Laws that has been domiciled and ratified as part of our law in Nigeria. Optional protocol to the convention on the elimination of discrimination adopted by 6th October, 1999 by United Nation General Assembly Resolution 54/4 and ratified in Nigerian 22nd December, 2000 the preamble in the Introductory of this Protocol sets out the Principles of Equality and nondiscrimination of women as embodied in the United Nation Charter, the Universal Declaration of Human Rights, and other International Human Instruments, including the convention on the elimination of all forms of discrimination against women.

It further asserts the determination of state parties which adopt the protocol to ensure the full and equal enjoyment by women of all Human Rights and Fundamental freedom and to take effective action to prevent violations of these rights and freedom.

There is also now ratified on 3rd day of May, 2008 as part of our law, the Convention on the Rights of Women with disabilities, especially when discriminated against in their place of work. Article 3 of this Convention states:

“The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

There are so many laws but suffice to mention maybe one more that is the Vienna Declaration and programme of Action adopted by the World Conference on Human Rights in Vienna on 25th day of June, 1993. The Vienna Declaration confirms and reaffirms the commitment of the World body on Human Rights and reaffirms their commitment which includes our great country Nigeria to the purposes and principles contained in the Charter of the United Nation and the Universal Declaration of Human Rights. Part of the Vienna Declaration states –

“The human rights of women should form an integral part of the United Nations human rights activities, including the promotion of all human rights instruments relating to women.

The World conference on Human Rights urges Governments, the Judiciary, other institutions, intergovernmental organizations to intensify their efforts for the protection and promotion of human rights of women and the girl-child. ”

Women’s rights have been unduly subjected to the background and they have suffered all sorts of discrimination arising from this unwholesome act of relegation in their places of employment. It is further observed that women in some cases have been derided because of their marital status and would have lost their jobs or even appointments but for the timely intervention of bodies like the National Judicial Council. This had happened in the legal profession.

In order to able to do effective justice, I hereby invoke Section 16 of the Court of Appeal Act 2007 and Inherent powers of the Court to do justice and proceed to declare that the appellant was indeed discriminated against when the respondents believed the petitioner accused and or refused to believe their employee who was not even given opportunity to confront her accuser.

In PEGASSUS TRADING GMBH VS FORTUNE INT’L BANK PLC (2001) F.W.L.R. 877 AT PAGE 899 PARAGRAPH C, MUNTAKA-COMMASSIE (JCA) (as he then was) said:

“The role of the court is that of an impartial arbiter.”

However where a trial court has drawn wrong conclusions from accepted or proved facts which do not prove the persecution’s case, the Court of appeal has duty to interfere with such findings. See Page 877 Paragraphs F – G.; PEGASSUS TRADING GMBH VS FORTUNE INTERNATIONAL BANK PLC (2001) F.W.L.R. 877, SUPRA. Hence this court is obliged to interfere with this judgment which has lacked or failed to address the sensitivity or discrimination suffered by the appellant, which is strong violation of the fundamental rights of right to privacy of family life of the appellant. See MOJEKWU VS IWUCHUKWU (2004) VOL. 7 M.J.S.C. 161; MARK VS EKE (2004) VOL. 5 M.J.S.C. 143.

An appellate court is entitled to consider any issue which did not arise on appeal in order to meet the substance of the appeal. The appellate court can also consider an issue suo motu even if it did not arise from the ground of appeal. See Section 16 of the Court of Appeal Act 2007.

Further in support of this assertion and the effect of my stand in effecting justice in this appeal without being encumbered by legal sensibilities is the renowned and celebrated case of HON. ROTIMI CHIBUIKE AMACHI VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS (2008) 1 SCNJ 1 wherein the Supreme Court inter alia held that it has a duty being the final court of the land to ensure that the determination of cases on appeal to it is reached on the merits of the question in controversy between the parties which resulted in the litigation. The court has very wide powers to do substantial justice without undue regard to technicalities. From the facts of this case, the Supreme Court has the power and the duty to invoke section 22 of the Supreme Court Act, 1990, even if no such relief was sought by the appellant to grant him such relief that will completely determine all the issues arising for enforcement of the judgment won by the appellant. See also Order 8 of the Supreme Court Rules particularly Rules 12(2) and 12(5). The relief granted to the appellant even if not asked could under the circumstances of the facts of this case amount to a consequential relief. It is the law even where a person has not specifically asked for a relief from a court the court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment, which it follows. It is not an order made subsequent to a judgment, which derails from the judgment or contains extraneous matters.

It is settled law that court can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect established rights. See ATOLAGBE VS SHARUN (1985) 4 SC (PT.1) 250; OKUPE V. F.B.I.R (1974) 1 N.M.L.R. 422; LIMAN VS MOHAMMED (1999) 9 N.W.L.R. (PT. 617) 116.

Also, in PETER OBI VS INEC & ORS (2007) 9 M.J.S.C. PG. 1 AT PG. 38, Aderemi, and JSC emphatically said –

“Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial court could not have made in resolving the dispute between parties in the suit before it. The purpose of Section 16 aforesaid is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionality’s must be present before the provisions of this section can be invoked; and they are-

“(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it.

(2) The real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal.

(3) All necessary materials must be available to the court for consideration.

(4) The need for Expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented and

(5) The injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself.”

See FALEYE & ORS -VS- OTAPO & ORS (1995) 3 NWLR (PT.381) 1; INAKOJU -VS- ADELEKE (2007) 4 NWLR (PT.1025) 423 and DAPIANLONG & ORS -VS- DARIYE (2007) 8 NWLR (PT.1036) 239.”

In view of the foregoing and in the final analysis, all the issues are hereby resolved in favour of the appellant. The appeal is meritorious and therefore succeeds; the judgment of the lower court is hereby set aside.

The Appellant is accordingly re-instated in her employment as Magistrate Grade II. Further, all entitlements due to her as per her claim is hereby granted in her favour.

There is no order as to costs.

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Other Citations: (2009)LCN/3095(CA)