Mallam Mohammed M. Alhassan V. Ahmadu Bello University, Zaria & Ors (2009)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
By the Statement of Claim filed by the Plaintiff, now the Appellant, at the Federal High Court, in the Kaduna Judicial Division, on the 19th January, 2001, he claimed against the Respondents thus;
“(i). A declaration that the termination of his employment by a letter dated 24th October 2000 is wrongful, contrary to Rules and Regulations governing conditions of service, arbitrary, in breach of principles of fair hearing and therefore null and void ab initio.
(ii) An order declaring that the Plaintiff was not given fair hearing before the termination of his appointment by the Defendants which are in contravention of the procedure precedent to Termination of Appointment.
(iii) A declaration that the Plaintiff is still a lawful employee and still in the service of the Defendants notwithstanding the Termination of Appointment letter dated 24th October, 2000 given to the Plaintiff.
(iv) An order setting aside the Termination of Appointment letter dated 24th October, 2000 purportedly written to permanently disengage the services of the Plaintiff by the Defendants.
(v) an order reinstating back the Plaintiff to his employment and position with the Defendants.
(vi). An order directing payments of all arrears of salary, allowances and other entitlements due to the Plaintiff from 24th October, 2000 till the date of re-instatement by the Court and thereafter full salary, allowances and other entitlements due to the Plaintiff as an employee of the Defendants on monthly basis.
(vii). An order perpetually restraining the Defendants, their servants, privies and agents from harassing and intimidating and/or terminating the appointment of the Plaintiff on account of the facts prior to the filing of this action or an account of this Court action”.
On receipt of the Statement of Claim, the Defendants, in turn filed their Joint Statement of Defence dated 29th March, 2001.
At the completion of pleadings in accordance with the Federal High Court (Civil Procedure) Rules, the matter was then fixed for hearing. At the hearing, the Appellant testified for himself and called no other witness while the Defendants did not adduce any evidence in rebuttal.
At the beginning of the trial, several documents titled; (1) Letter of Appointment dated 26/3/98, (2) Letter of Query dated 2/06/99, (3) Response to Query dated 03/06/99, (4) Application for Balance of 1998/99 Leave dated 05/06/2000, (5) Letter for Re-non-challant/sloppy attitude to work dated 21/06/2000, (7) Letter of Strong and Last Warning dated 07/07/2000, (8) Letter of Termination of Appointment dated 24/10/2000 and (9) Regulation, Governing Conditions of Appointment of Senior Staff of A.B.U, Zaria dated 15/07/83 were all admitted by the consent of the parties as Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 respectively.
During the proceedings at the lower Court, the Appellant testified that his academic qualification was a B.A. Public Administration. He had a Statement of Course Work on Masters Public Administration. His services were engaged by Ahmadu Bello University as an Administrative Officer on 26/3/98. On assumption of duty, he was posted to the security office and remained there till 02/07/99 when an anonymous letter was sent to the University. As a result, he was given a query, after which he was posted to the 2nd Defendant. He stayed with the 2nd Defendant for about a month, then, at the request of the 3rd Defendant, which was to the knowledge of the Director of the 2nd Defendant, he was posted to the 3rd Defendant and then became their College Secretary.
Then, one day, still working for with the 3rd Defendant, he applied for leave to enable him contest for the Chairmanship of SSANU (Senior Staff Association of University), but, he was advised against it by the 3rd Defendant. He did not heed the advice and then participated in the election which he eventually lost. Thereafter, a query was handed down to him containing some allegations which he said were fictitious. He also pointed out that the Registrar of the 1st Respondent ought to be the person to issue him with a query. His official relationship with the 3rd Respondent then soured.
Consequently, he received a letter of last and strong warning from the Registrar of the 1st Defendant with respect to the 3rd Defendant’s query to him and after which his appointment was terminated.
He further stated that no committee was set up to try him on any of the allegations nor was he given any opportunity to defend himself. He said that the University has a disciplinary committee but he was not summoned to appear before it, and that failure to do that deprived him of his right to fair hearing.
Upon his appointment, he was given Exhibit 9 which embodied the terms and conditions of his appointment and, by that, he should have retired at the age of 60, that is to say, in 2022 A.D.
Under cross-examination, he claimed that only the Registrar can issue him with a query and only the Registrar is in charge of discipline in the Registry Department. He relied on the 1999 Senior Staff Regulation in support. His appointment had not been confirmed as at the time he contested for the SSANU Chairmanship and his appointment was terminated. He made reference to the Regulations governing the conditions of service of senior staff dated July 1999 (Exhibit A), the Terms contained in his letter of appointment, Exhibit B and the Federal Civil Service Rules and Regulations Revised Edition of 1999, Section 3(f) of Exhibit 9. He stated he was not given three months notice, but was given three months’ salary in lieu of notice which he collected. He did not appeal to the Registrar.
The Defendants did not call any evidence. At the end of the trial the learned trial Judge dismissed the Appellant’s case for want of proof on the balance of probability, hence this appeal which was anchored on six grounds out of which five live issues were propounded by the Appellant’s Counsel in the Appellant’s Brief for the determination of this Court.
They are thus;
“1. Does the Appellant’s appointment transcends mere master and servant relationship to a higher pedestal of an employment laced with statutory flavour in view of the provisions of paragraphs 1, 2 and 6 of Exhibit 1, section 1 (a) and 3 (c) of Exhibit 9 and Provisions of Statutes 8.4 and 8.5 of First Schedule to the Ahmadu Bello University (Transitional Provisions) Act, Cap. 14 Laws of the Federation of Nigeria 1990?
- Does the 1st Respondent have the power to terminate the appointment of the Appellant before the expiration of the first 3 years of his employment for no good or sufficient cause or in the absence of any proven acts of misconduct or gross misconduct in view of the provisions of paragraph 6 of Exhibit 1 and Statute 8.5 of the First Schedule to the Ahmadu Bello University (Transitional Provisions) Act, Cap. 14, Laws of the Federation of Nigeria?
- Was the termination of the appointment of the Appellant before the expiration of the first three years not a clear breach of the provisions of paragraph 6 of Exhibit 1 and section 3 (f) (iii) of Exhibit 9 and also Statute 8.5 of the First Schedule to the Ahmadu Bello University (Transitional Provisions) Act, Laws of the Federation of Nigeria 1990? And is section 3 (f) (iii) of Exhibit 9 not contrary to and inconsistent with the provisions of the said Statute 8.5 of the said Act?
- Did the cases cited in support of the Appellant’s case such as Bamgboye vs. University of Ilorin (1999) 10 NWLR Part 622 p. 290 and Igwilo vs. Central Bank of Nigeria (2000) 9 NWLR Part 672 p. 302 not lay general principles of law which apply to the facts of this case and which were relevant thereby worthy of consideration by the Court in its Judgment?
- Was the trial Court’s failure to consider and utilize the Reply Address of the Appellant’s Counsel to the Respondents’ Counsel’s Address in the resolution of the legal issues in its judgment not a fatal mistake which in no small measure led to wrong conclusions in the judgment?”
The Respondents in turn, in their Brief of Argument, raised a lone issue for determination thus;
“Whether from the evidence and circumstances of this case, the trial Court was right in dismissing the Plaintiff’s/Appellant’s Suit”.
Then, proffering arguments in respect of the Appellant’s issues, learned Counsel for the Appellant, Job Dangana Esq, firstly made reference to the cases of Busari vs. Edo State Civil Service Commission (1999) 4 NWLR Part 599 p. 365 at 374 paras. E-F, Fakuade vs. O.A.U. Totti (1993) 5 NWLR Part 291 p. 47 at 63 paras. B-C, Bamgboye vs. University of Ilorin (1999) 10 NWLR Part 622 p. 290 at 320 paras E-F and A.B.U. Zaria vs. Molokwu (2004) ALL F.W.L.R. Part 238 p. 682-683 paras. G-B per Ba’aba J.C.A. and paragraphs 1 and 2 of Exhibit 1, sections 1(a) and 3 (a) of Exhibit 9, sections 14 (1), 15 (1), 15 (2), 15 (3), (i), (n) and (q) and provisions of statute 8.5 of the Ahmadu Bello University (Transitional Provisions) Act and pointedly argued that the employment of the Appellant with the 1st Respondent had statutory flavour and was not a contract of service on the basis of ordinary Master/Servant relationship. Learned Counsel for the Appellant reproduced paragraphs 1 and 2 of Exhibit 1 which stated thus;
“1. I write on behalf of the Ahmadu Bello University Council to offer you a full time appointment of Administrative Officer in the University.
- The appointment is subject to the provisions of the University Laws, Statutes and Ordinances made thereunder and to Regulations governing the conditions of appointment of Senior Staff made by the University Council from time to time. A copy of the current Regulations (referred to in this letter as “The Regulations”) is enclosed”.
Counsel then stated that by section 30 (1) of Ahmadu Bello University (Transitional Provisions) Act, the first Statutes of the University are those set out in the First Schedule to the Act and they are deemed to have been made under the provisions of sections 15 and 31 of the Act and shall continue to be in force.
Counsel also recapitulated the provisions of Statute 8.5 (a) and (b) and 8.7 of the First Schedule to Ahmadu Bello University (Transitional Provisions) Act, Cap. 14 thus;
“8.5 Subject to the provisions of this Statute and to the terms of his appointment, no member of the Senior Staff shall be dismissed save by decision of the Council and/ or good cause, which shall mean gross misconduct or inability to carry out the duties of his office or employment provided that:
(a) Before taking its decision, the Council shall receive and consider a report on the case by a joint committee of the Council and the Senate consisting of the Chairman of the Council as Chairman and equal numbers of members of the Council and of the Senate.
(b) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council”.
“8.7. Subject to the directions of the Vice Chancellor, the Registrar may appoint and dismiss any member of the staff other than the Senior Staff”.
He further restated the provisions of sections 1 (a) and 3 (a) and (c) of Exhibit 9 as follows:
“1(a) the regulations shall be cited as Regulations governing the conditions of service of senior staff of Ahmadu Bello University Zaria. It shall come into force on 1st July, 1983. Where there is any inconsistency in part with the provisions of the University Laws and Statutes shall supercede that provision of the Regulation to the extent of the inconsistency”.
“3(c) normally, only Nigerians below the age of sixty are eligible for tenure appointment. All other staff would be appointed on contract”.
Counsel reiterated that the employment of the Appellant had clear and unambiguous statutory flavour since Exhibits 1 and 9 incorporated the provisions of the Laws, Statutes and Ordinances of the 1st Respondent into the appointment of the Appellant and even made the terms/provisions contained in Exhibits 1 and 9 subject to the Laws, Statutes and Ordinances. Counsel stressed that the Appellant was appointed by the Council of the University on a full-time basis as an Administrative Officer by virtue of paragraph 1 of Exhibit 1. His appointment is subject to the provisions of the University Laws, Statutes and Ordinances made thereunder and to the Regulations governing the conditions of appointment of senior staff by virtue of paragraph 2 of Exhibit 1. He is a Senior Staff appointed by the Council and not a junior officer that can be appointed and dismissed by the Registrar acting on the direction of the Vice Chancellor. By Statute 8.5, no member of a Senior Staff shall be dismissed except by a decision of the Council of the 1st Respondent for good cause which shall mean gross misconduct or inability to perform the duties of his office or employment and he must be given full opportunity of being heard. He said that Statute 8.5 did not delegate the power of dismissal of a Senior Staff from the Council of the University to the Vice Chancellor or Registrar or the Establishment Secretary who wrote and signed Exhibit 8. He referred to Statute 8.7 of the First Schedule. He explained that within the first three years of the Appellant’s employment, his employment could only have been terminated on the grounds of misconduct or inability to perform the duties of his office or employment for which he must be given full opportunity of being heard in accordance with Statute 8.5. He further argued that in Statute 8.5 no mention was made as to whether the Senior Staff’s employment must be confirmed or not, that what qualifies a staff to have the tenure of his appointment/employment protected is his being a senior staff. He also referred to the Supreme Court case of Olaniyan vs. Unilag (1985) 2 NWLR Part 9 p. 599 at 629 where it was held that the terms “dismissal” and “termination” mean the same thing since they have the same effect and can be used interchangeably. He then submitted that the learned trial Judge erred when he held that he was unable to state that the appointment of the Plaintiff with the 1st Respondent had any statutory flavour. He, therefore, urged the Court to resolve issue NO.1 in favour of the Appellant.
With regard to issue NO.2, learned Counsel submitted that the Appellant was appointed on full-time basis as an Administrative Officer on Senior Staff Cadre of the 1st Respondent and he was already on Pensionable Cadre employment as confirmed by paragraph 8 of Exhibit 1, and not on casual or contract of employment within the meaning of section 3 (e) of Exhibit 9. He stated that the first three years of his employment has not expired. He had served only 2 years and 7 months, he was not guilty of any acts of misconduct or gross misconduct for which he needed to be tried and if found guilty, he could be lawfully terminated after being given fair hearing within the contemplation of paragraph 6 of Exhibit 1 and Statute 8.5 (supra).
He contended that where a senior staff is still on unconfirmed employment, the termination of his appointment must still comply with the procedure laid down in Statute 8.5 (supra). He then queried, “Where did the Establishment Secretary (M.A. Nkom Mrs.) derive her power to author Exhibit 8 that terminated the Appellant’s appointment? He further contended that the power and duty conferred on the Vice Chancellor by section 3 (f) (iii) of Exhibit 9 is not to be delegated. Even at that, Exhibit 8 did not mention that it was written on the instruction and directives of the Vice Chancellor, although he had maintained that section 3 (f) (iii) of Exhibit 9 is inconsistent with Statute 8.5 (supra) and therefore null and void by virtue of the provisions of section 1 (a) of Exhibit 9. Counsel then cited the case of Emuze vs. Vice Chancellor, University of Benin (2003) 8 M.J.S.C. page 1 at p. 16 paras C-D where the Supreme Court held that where a Statute confers specific or special powers on any person or authority for the performance of such acts or duties, it is only that person or authority and no other person that is contemplated in the performance of such acts or duties under the relevant law. He must also act in strict accordance with the powers vested in him by the relevant Statute and may not exceed such powers. He further referred to Bamgboye vs. University of Ilorin (supra) where it was held that in order to justify the dismissal or termination of appointment of an employee, the employer must prove to the trial Court’s satisfaction that (a) the allegation was disclosed to the employee, (b) he was given a fair hearing and (c) the panel believed that he committed the offence after hearing the witness. He argued that the Appellant could not summarily be dismissed or has his appointment terminated on the ground that his services were no longer required when his first three years had not expired and when no misconduct has been alleged and proved against him. He said that the termination of the Appellant’s contract is contrary to the laid down procedure in paragraph 6 of Exhibit 1 and Statute 8.5 (supra) and even section 3 (f) (iii) of Exhibit 9.
On issue NO.3, learned Counsel began by reiterating that section 3 (f) (iii) of Exhibit 9 is inconsistent with and contrary to Statute 8.5 and 8.4 of the First Schedule Ahmadu Bello University (Transitional Provisions) Act Cap. 14 (supra). Both Statutes 8.4 and 8.5 placed the appointment including the terms and conditions of service and the termination of appointment of all senior staff, of which the Appellant was one, under the powers of the Council of the 1st Respondent. It is, therefore, strange for section 3 (f) (iii) of Exhibit 9 to have given the Vice Chancellor the power to terminate the appointment of a Senior Staff whose appointment has not been confirmed when Statutes 8.4 and 8.5 (supra) have not so stipulated, and where there is no such power conferred on him or delegated to him by the Council under Statute 8.5.
He further argued that suppose section 3 (f) (iii) of Exhibit 9 were said not to be inconsistent with Statute 8.5 (supra), the contents of Exhibit 8 are still in breach of the said section 3 (f) (iii) in that it clearly stipulated that there must be sufficient cause for the Vice Chancellor to terminate the appointment of an unconfirmed staff. Counsel further submitted that the source of power of the author of Exhibit 8 was not disclosed nor did Exhibit 8 state that the termination was in accordance with the powers conferred on the Vice Chancellor. He argued that the learned trial Judge ought to have pronounced on whether or not section 3 (f) (iii) of Exhibit 9 is contrary to and inconsistent with Statute 8.5. He submitted that the Learned trial Judge was, therefore, wrong to have held that the Appellant’s appointment was rightly terminated in accordance with section 3 (f) (iii). Finally on this issue, Counsel urged that Exhibit 8 should be declared null and void having not been made in accordance with section 3 (f) (iii) and paragraph 6 of Exhibit 9 nor Statute 8.5 (supra).
Regarding issue NO.4, learned Counsel opined that the learned trial Judge was in error when he stated that the cases cited by him (Appellant’s Counsel) did not lay down the general principles of law applicable to this case and were therefore irrelevant. He listed the cases cited by him as follows: (1) Igwilo vs. Central Bank of Nigeria (2000) 9 NWLR Part 672 p. 302, (2) Busari VS. Edo State Civil Service Commission (1999) 4 NWLR Part 599 p. 365, Bamgboye vs. University of Ilorin (1999) 10 NWLR Part 622 p. 290, Olaniyan vs. University of Lagos State (1985) 2 NWLR Part 9 p. 47, Fakuade vs. O.A.U.T.H (1993) 5 NWLR Part 291 p. 47 and Ibrahim VS. Judicial Service Commission, Kaduna State (1985) NWLR Part 1 p. 2 and submitted that they laid down the general principles guiding the Courts in their determination of any fact or issue touching on Master and Servant relationship or employments with statutory flavour. He laid much emphasis on the case of Igwilo vs. Central Bank of Nigeria (supra) where it was held that the Appellant’s employment into the Central Bank was no doubt a public employment and should not be terminated merely because the Appellant is not yet confirmed but should be based on proven misconduct or other specified reasons.
Then turning to issue NO.5 which is more or less the same as issue No. 4, the Appellant’s Counsel in summation stated that the trial Judge was in grave error of law when he failed to consider the Reply of the Appellant’s Counsel on the ground that they restated the Appellant’s Counsel’s address.
In tackling the lone issue distilled by the Respondents in their Brief, their Counsel, D.D. Onietan Esq, then raised the following questions, that is to say;
“(i) What is the effect of payment and receipt of salary in lieu of notice of termination of employment in a contract of employment with statutory flavour?
(ii) Is there any procedure for terminating the appointment of an officer on probation?
(iii) When does an employee need to be heard or given fair hearing before his appointment could be terminated?
(iv) Can a party deviate from his pleadings?
(v) Whether being a person on pensionable appointment makes such employment enjoy statutory protection?
(vi) What is the purpose of the expression “subject to” used in Statute 8.5 of Ahmadu Bello University (Transitional Provisions) Act Cap. 14 Laws of Federation of Nigeria 1990?
(vii) Whether being a public corporation makes all employments by that corporation have statutory flavour?
With respect to point NO.1, learned Counsel for the Respondents referred to the copious admission made by the Appellant under cross-examination that he received three months salary in lieu of notice paid to him by the Respondents, and, the learned trial Judge’s erroneous finding on the point, and submitted that the Supreme Court and Court of Appeal had in a number of cases, that is to say, Morohunfola vs. Kwara State College of Technology (1990) 4 NWLR Part 145 p. 506 per Karibi-Whyte J.S.C., Odiase vs. Auchi Polytechnic (1995) 4 NWLR Part 546 p. 477 at 489-490 per Ige J.C.A., Olaniyan vs. University of Lagos State (1985) 2 NWLR Part 9 p. 599 and Fakuade vs. O.A.U.T.H stated that if the Appellant had rejected the three months salary in lieu of notice, the unilateral repudiation of his contract of service with the defendant would not have operated to determine the contract. He submitted that having collected three months salary from the Respondents in lieu of notice of termination of his employment, the Appellant no longer have the competence to challenge the said termination whether or not the employment had statutory flavour. He then urged the Court to hold that the termination of the Appellant’s appointment was proper and valid.
On the point No 2, Counsel contended that Dr Igwilo’s case is inapplicable to the present one in that case; there was an allegation of a criminal nature leveled against Dr Igwilo.
Submitting in respect of point NO.3, learned Counsel stated that hearing presupposes the existence of an allegation against a person, so, where no allegation of any impropriety was made or leveled against any individual, no body or panel ought to be set up to hear an allegation that does not exist. Counsel argued that the case of Bamgboye cited by the Appellant’s Counsel is irrelevant to this case because the essence of Bamgboye’s case was that when an allegation is made against an employee; such employee ought to be given fair hearing. He then submitted that since the Appellant’s appointment was not terminated on grounds of inefficiency, misconduct or misbehaviour, all the procedures laid down for discipline of staff in relation to termination of appointment would be inapplicable to his case.
In relation to the point NO.4, learned Counsel contended that at nowhere in the Appellant’s Statement of Claim before the trial Court, was the competence or incompetence of Mrs. M.A. Nkom to sign Exhibit 8 made an issue. He stated that the parties did not join issue on the point, no ground of appeal was raised on it nor was any issue for determination formulated therefrom. He referred to the case of Morohunfola vs. Kwara State College of Technology (supra) where it was held amongst other things that it is incumbent on the person who asserts to prove and if in the pleadings, the Plaintiff has not made any clear assertion, it does not behove the Defendant to clarify more than what he has been confronted with. Counsel then stated that parties are bound by their pleadings and urged the Court not to countenance the argument of the Appellant’s Counsel that Mrs. M.A. Nkom had no power to author Exhibit 8.
Learned Counsel further stated that there is no procedure for terminating the appointment of an unconfirmed staff and that it is only if the Appellant was removed on grounds of incompetence, inefficiency, misconduct or misbehaviour that the only authority vested with power to remove him shall be the University. He referred to Bamgboye vs. University of Ilorin (1998) 10 NWLR Part 622 p. 290 at 299, 342 para B, 345 para D-E in support.
On point NO.5, Counsel cited the case of Iloabachie vs. Phillips & Ors (2002) 14 NWLR Part 787 p. 264 at 270, 285 paras E-F where it was stated that the fact that a person is a pensionable Federal Public Servant does not mean that his contract of employment is protected by statute. He stressed that the provision of Statute 8.5 is
governed by Exhibit 8 to which it has been made subject, and, Exhibit 9 to which Exhibit 1 refers, simply confirms the terms and conditions of the Appellant’s appointment as stated in Exhibit 1. He further stressed that section 30 (1) of Exhibit 9 which the Appellant would have availed himself of was equally made subject to the provisions of the Statute and the terms of appointment of the Appellant. He contended that even if the section has not been made subject to the Appellant’s appointment and the Statute, the Appellant’s case would still not have been assured since no allegation of gross misconduct or inability to carry out the duties of his office or employment was made against him before his appointment was terminated.
As for point NO.6 at which he discussed the phrase “subject to” used in Statute 8.5 of the Ahmadu Bello University, Zaria, and learned Counsel made reference to Texaco Panama Inc. vs. Shell Petroleum Development Corporation of Nig. Ltd (2002) FWLR Part 96 p. 519 at 600 per Kalgo J.S.C. and Nigeria Deposit Insurance Corporation vs. Okem Enterprises ltd & anor (2004) All FWLR Part 210 p. 1176 at 1233 paras B-D, per Uwaifo, J.S.C., where it was stated inter-alia, that the expression generally implies that what the section is subject to, shall govern, control and prevail over what follows in that subject section of the enactment. He therefore submitted that the terms of Appellant’s employment prevailed over Statute 8.5 of the 1st Respondent.
In respect of point NO.7, Counsel said it has been taken care of in his argument with respect to point NO.5. He then urged the Court to dismiss the Appeal as lacking in merit.
The Appellant filed a Reply Brief which I, extensively, considered.
I have thoroughly scrutinized the grounds of appeal upon which the Appellant’s Notice of Appeal is hinged and the live issues postulated therefrom for determination of this Court and I am afraid to state that I was unable to decipher the grounds from which the lone issue framed by the Respondent emanated. Be that as it may, this Court would, however, for purposes of clarity, focus on the issues presented by the Appellant in this appeal. I must, also, observe that the seven points put forward for consideration by the Respondents in their Brief were more or less subsumed by the issues propounded by the Appellant.
I think it ought to be firstly emphasized that the fact that an employer is a creation of Statue or Statutory body does not, without more, raise the legal status of its employees over and above the normal Common Law Master and Servant relationship. In Iloabachie vs. Philips (2002) 14 NWLR Part 784 p. 264, where the Supreme Court case of Prof. Dupe Olatunbosun vs. Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR Part 80 p.25 at 4 was referred to, it was stated that it is not in dispute that the appellant is a federal public servant and that the 2nd and 3rd Respondents are bodies created by statute, these facts, however, did not on their own, elevate the appellant’s contract of employment to a contract with statutory flavour. The fact whether a contract of employment is governed by Statute or not depends on the interpretation of the contractual document or of the applicable Statute. Also, the fact that a person is a pensionable Federal public servant does not mean that his contract of employment is protected by Statute.
I will now turn to issue NO.1 in the Appellant’s Brief.
In summation, paragraphs 1 and 2 of Exhibit 1 stated that the Appellant’s appointment as an administrative officer was given on behalf of the Ahmadu Bello University and that the said appointment was governed by the provisions of the University Laws, Statutes and Ordinances made thereunder, and, to Regulations governing the conditions of appointment of Senior Staff made by the University Council from time to time.
The appointment is said to have been governed by sections 14 (1) 15 (1), 15 (2), 15 (3) (h), (I), (n) and (q) and Statute 8.5 of Ahmadu Bello University (Transitional Provisions) Act.
The afore stated sections of the Act stated thus;
“14(i) an interim governing body of the University Provisional Council shall, subject to the general direction of the President, control the policies and finances of the University and manage its affairs”.
“15(1) Subject to subsection (2) of the section, the Provisional Council shall exercise such functions, apart from those specified in section 14 of the law, as are expressly conferred on the Council by this law.
(2) Except with the prior approval of the President, the Provisional Council shall not exercise any of the powers conferred by:-
(a) Section 16 of this law (which relates to power to delegate functions of the Council) and
(b) Section 31 of the law (which relates to the making of Statues regulating the University).
“15(3) without derogation from the generality of the powers conferred upon the Provisional Council by subsections (1) and (2) it is hereby declared that the Council shall have the following powers;
(h) To enter into, vary, perform and cancel contracts on behalf of the University;
(I) to appoint all members of the staff other than those for whom specific method of appointment is otherwise provided;
(n) to provide for the welfare of all persons employed by the University and the wives, widows and dependants of such persons including payment of money, pensions or other payments and to subscribe to benevolent and other funds for the benefit of such persons;
(q) to exercise all such powers as are or may be conferred on the Council by this law or by the Statutes or Acts and to carry this law, the Statutes, and the Acts into effect”.
Statute 8.5 states;
“8.5 Subject to the provisions of the Statute and the terms of his appointment, no member of the senior staff shall be dismissed save by decision of the Council and for good cause, misconduct or inability to carry out the duties of his office or employment provided that.
(a) Before taking its decision, the Council shall receive and consider a report on the case by a Joint Committee of the Council and the Senate consisting of the chairmen and equal members of the Council and of the Senate.
(b) No person shall be dismissed by the Council unless he shall have been given a reasonable opportunity of being heard by the Council.
(c) Pending the completion of the hearing of a case by the Joint Committee provided for in paragraph (a) of this provision and a decision on the case by the Council, the Vice Chancellor may, at his discretion, suspend the member of staff against whom the case had been brought from any or all of his University duties, rights and privileges, save that the member of staff shall continue to receive his normal emoluments during such period of suspension”.
Having reproduced the relevant sections of the Ahmadu Bello University (Transitional Provisions) Act and Statute 8.5, the relevant question is, “what is the purport of the phrase; “subject to” used at paragraph 3 of Exhibit 1 and Statute 8.5,
In the case of Ebhota vs. Plateau Investment and Property Development Co. Ltd (2005) 15 NWLR Part 948 p.266 at 283 para B-E where the case of Labiyi vs. Anretiola (1992) 8 NWLR Part 258 p.139 at 163, the Supreme Court, per Ejiwumni, J.S.C., stated thus;
“The phrase “subject to” in the section is significant. The expression is often used in Statutes to introduce a condition, a proviso, a restriction and indeed a limitation. See Oke vs. Oke (1974) 1 ALL NLR (Pt.1). The effect is that the expression evinces an intention to subordinate the provisions of the section to the section referred to which is intended not to be affected by the provisions of the latter. See Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR Part 91 p.622. In other words, where the expression is used at the commencement of a Statute, as in section 1 (2) of the Decree NO.1 of 1984, it implies that what the subsection is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment. See Tukur vs. Government of Gongola State (1989) 4 NWLR Part 117 517 at 529″.
It follows, therefore, that by that phrase, what the letter of appointment is subject to, shall govern, control and prevail over what follows in that letter of appointment.
Furthermore, it needs to be stated that before the contractual relationship between the Appellant and the 1st Respondent with regard to the removal of the Appellant by the 1st Respondent can enjoy Statutory flavour, Statute 8.5 of the First Schedule to the Ahmadu Bello University (Transitional Provisions) Act, other laws, and the Regulations made pursuant to the said Act must be expressly incorporated into the contract of employment existing between the parties. It is such incorporation that gives rise to special treatment by way of Statutory or legal flavour in the event of the master deciding unilaterally to terminate the Appointment of servant.
It is indisputable that, the appointment of the Appellant in this appeal was circumscribed or limited by the provisions of the University Laws, Statutes and Ordinances made thereunder and Regulations Governing the Conditions of Appointment of Senior Staff made by the University from time to time. I have no difficulty in sifting from Exhibit 1, being the Appellant’s letter of appointment, the ingredients of statutorily protected employment. The Appellant’s employment, obviously, transcended mere master and servant relationship. It is an employment laced with statutory flavour. All the aforestated Laws, Statutes and Regulations were incorporated by reference in Exhibit 1/ issued to the Appellant by the 1st Respondent. It seems clear, therefore, that the trial Judge was wrong to have held at p.109 of the record thus;
“I am unable to state that the appointment of the Plaintiff with the 1st Defendant had any statutory flavour. It is an appointment governed by the terms of the conduct”.
The law is, where the conditions for appointment or determination of a contract of service are governed by the provisions of a Statute, such that a valid determination or appointment is predicated on satisfying such statutory provisions, such contract is said to enjoy statutory protection. The contract is determinable not by the parties but only by the Statutory pre-conditions governing its determination. See Lievwore vs. NEPA (2002) 13 NWLR Part 784 p.417.
It is on this premise I hereby resolve issue NO.1 in favour of the Appellant.
In dealing with issue NO.2, it ought to be recognized that by Statute 8.5, the determination of the Appellant’s appointment was subject to the provisions of the Statute and his terms of employment, meaning in all respects, that, it was not governed only by Statute 8.5 but, also, by whatever his terms of employment might have provided.
So, by statute 8.5 to the First Schedule of the Ahmadu Bello University (Transitional Provisions) Act, a law which the Appellant needed not plead in his Statement of Claim, the Appellant, a senior staff of the Respondent, shall only be dismissed by the decision of the Council for good cause which means gross misconduct or inability to carry out the duties of his employment.
However, as for termination of his employment, paragraph 6 of his letter of appointment says thus;
“The commencement and termination of the appointment will be governed by the provisions of section 3 of the Regulations.
What then did the Regulations say about termination of the Appellant’s appointment? This could be ascertained at paragraph (f) of section 3. It provides;
“3(f) An appointment may be terminated before its due date of expiry as follows;
(i) By the Council in accordance with the University Statutes;
(ii) By the member of staff giving at least three months notice in writing (or payment in lieu) to the Vice Chancellor and the latter’s acceptance in writing.
Unless otherwise agreed, such notice shall, for teaching staff, expire at the end of a session;
(iii) By the Vice-Chancellor on behalf of the University for sufficient cause, giving at least three months notice (or payment in lieu) to a member of staff on a contract appointment or an unconfirmed tenure appointment. The member of staff concerned may within seven days of his being informed of the termination, appeal in writing to the Registrar for submission to him”.
What section 3(f) of Exhibit 9 connotes is that, before the date of expiry of the employment of a senior staff, with regard to confirmed appointments, it is only the Council that can determine the same in compliance with the University Statutes contained in the First Schedule to the University Act or by the member of staff giving at least three months notice or accepting payment of three months’ salary in lieu of notice. But, where contract appointment or an unconfirmed tenure appointment is concerned, such is determinable by the Vice Chancellor on behalf of the University for Sufficient Cause, by giving at least three months notice or payment in lieu of notice.
What this postulates is that, since the Appellant was still an unconfirmed staff of the 1st Respondent, his appointment may be terminated by the Vice-Chancellor on behalf of the University, for sufficient cause giving at least three months notice (or payment in lieu).
From the foregoing, it is clear that the question raised in the second issue formulated by the Appellant cannot but be answered in the negative. It is therefore, resolved in favour of the Appellant.
In dealing with issue NO.3, it will be pertinent to reproduce hereunder the contents of Exhibit 8 dated 24th October, 2000 titled “Termination of Appointment” signed by M.A. Nkom (Mrs) described therein as the Establishment Secretary. It reads:
“AHMADU BELLO UNIVERSITY, ZARIA, NIGERIA
Telephone: 069-551294, 069-550581-5
Telegrams: UNIBELLO Zaria
Vice Chancellor: PROFESSOR ABDULLAHI MAHADI
NCE, E.A. (Hons) ABU: M.A., Ph.D. (ABU) FIAM, CDA
OFFICE OF THE REGISTRAR
Registrar: MAIRIGA MANI
BA (Hons), (ABU), Dip. Econ, Dev. (Oxford) HEAP (Manchi), AMNIM
Your Ref:
Our Ref: P.16, 334
Mal. Mohammed M. AI-Hassan,
Samaru College of Agriculture,
Division of Agricultural Colleges,
Ahmadu Bello University,
Zaria.
Dear Sir,
Date: 24th October, 2000
TERMINATION OF APPOINTMENT
Please refer to our letter P.16, 334 dated 26th March, 1998 in which you were appointed as an Administrative Officer in the Registry Department of this University.
I write to inform you that same appointment is hereby terminated with immediate effect because your services are no longer required.
By a copy of this letter, the Bursar is requested to pay you three months’ salary in lieu of notice.
Please ensure that you hand over, all University property in your possession to the Principal, Samaru College of Agriculture before you leave.
Yours faithfully,
M.A. Nkom (Mrs)
Establishment Secretary”.
What does the phrase “sufficient cause” adumbrated in section 3(f) (iii) of Exhibit 9 connote?
According to Black’s Law Dictionary, 6th Edition at p.1433 – “sufficient cause” means “such cause as to hold defendant to answer charges. It is reasonable or probable cause or that state of facts as would lead a man of ordinary caution to conscientiously entertain strong suspicion of defendant’s guilt”. It could also mean a reasonable ground for belief in certain alleged facts. It is an apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper) which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or in a civil case, that a cause of action existed”, (underlining mine).
This now brings me to the question, ‘whether any sufficient cause was shown on Exhibit 8?’
It is glaring on the face of Exhibit 8 that the only reason given for termination of the Appellant’s employment before the expiration of his first three years was, that ‘his services were no longer required’. The pertinent question at this juncture is, ‘Was the procedure adopted in Exhibit 8 contemplated by Statue 8.5 and paragraph 3(f) (iii) of Exhibit 9?’
Section 3(f) (iii) of Exhibit 9 is succinct as to what it dictated, that is to say, that within the first three years of the Appellant’s employment, his employment may be terminated by the Vice-Chancellor by giving him the requisite notice for sufficient cause or payment in lieu of notice.
Showing sufficient cause entails giving adequate reason, considering the state of facts found to exist after reasonable inquiry, i.e. the employer must give reasons for wanting to terminate the employee’s appointment, and such reasons must be as much as may be necessary, or such quality, number, force or value as to lead a man of ordinary caution to conscientiously entertain strong suspicion of the Appellant’s guilt.
The only reason shown on Exhibit 8 was that “the Appellant’s services were no longer required”. Can the assertion that his services were no longer required suffice? Certainly not. The assertion did not portray or impute any allegation of any wrong doing against the Appellant.
By the definition of the term “sufficient cause” if there was any allegation of any wrong doing against the Appellant, he ought to have been confronted with it and inquiry ought to have been made as well, thereby giving him an opportunity to defend himself.
That term signifies that the Appellant cannot have his employment terminated as such with a waive of hand and without satisfactory reason for believing that he was guilty of any fact that could give rise to the termination of his employment.
The essence of Statute 8.5 to the First Schedule of the University of Ahmadu Bello (Transitional Provisions) Act Cap 114 and section 3(f) (iii) of the Regulations made pursuant to the Act governing the contracts of service of Senior Staff of the University is to protect employees such as the Appellant or an employee with statutory protection from the dictatorial and tyrannical tendencies of some over-bearing employers who wallow in the belief that their employees hold their appointments at their pleasure, and as such, they can be booted out at any time they wish. It is on this premise I find absurd the remarks of the learned trial Judge at p.112 of the record of this appeal saying;
“From the tenor of Exhibit “8”, I do not find any breach of the terms of the Plaintiff’s appointment or of the regulations in Exhibit “9”. The defendants are entitled to exercise their right to such appointment without giving any reason, so long as they comply with precondition intricate in Exhibits “1” and “9” merely giving three months notice or giving three months salary in lieu of notice”.
In Ogieva vs. Igbinedion (2004) 14 NWLR Part 894 p.467, it was held that where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body invested with the authority would follow the requirement to the details. Therefore, an employer of employee whose appointment has statutory flavour has no right to terminate his appointment at the pleasure of such employer. The Appellants, being teachers, are by law members of the public service. Their tenure is subject to the relevant Statutes or Regulations made thereunder and not subject to the whims and caprices of any person or authority.
It is clear on Exhibit 8 that no sufficient cause was given for termination of the Appellant’s employment because, the fact that his services were no longer required, appears to me nothing, but, puerile. It is not a sufficient cause nor is it cogent at all to qualify as such, as envisaged by Statute 8.5 and section 3(f) (iii) of Exhibit 9 and as defined in the Black’s Law Dictionary (supra). The termination of the Appellant’s employment without compliance with the stipulations and requirements of the provisions of Statute 8.5 to the First Schedule of the Ahmadu Bello University (Transitional Provisions) Act and section 3(f) (iii) of the Regulations Governing the Conditions of Appointment of Senior Staff of Ahmadu Bello University to the extent that sufficient cause shall be shown for termination of his employment, is clearly in contravention of the aforestated Acts, Statutes and Regulations.
As for the second limb of the question posed In Issue NO.2, whether section 3(f) (iii) of Exhibit 9 is contrary to and inconsistent with the provisions of Statute 8.5 of the Ahmadu Bello University (Transitional Provisions) Act, I think it right to state that since Statutes 8.4 and 8.5 did not make provision for determination of a senior staff’s employment within the first three years that his employment is unconfirmed, recourse ought to be had to the terms of employment of the senior staff as clearly articulated in Statute 8.5. The terms of appointment of the Appellant, i.e., Exhibit 1, at paragraph. 6, expressly and clearly stated the applicability of section 3 of the Regulations, i.e., Exhibit 9, to the termination of the Appellant’s employment. Section 3(f) (iii) relates to determination of the Appellant’s appointment within the period generally known as the “probationary period”, although in this case, it is known as an “unconfirmed tenure”. Section 3 (f) (iii), to my mind, complements the provisions of Statute 8.5 of the Act. It is clear in the evidence proffered by the Appellant at the trial that he was still within the period of the first three years in office when Exhibit 8 was issued to him.
I will now turn to the other points raised in the Appellant’s Brief of Argument with respect to issue No.3. I must say that I have painstakingly perused the testimony of the Appellant at the Lower Court, the Appellant’s Grounds of Argument in this appeal, but, could not pinpoint the basis or the foundation laid for the Appellant’s contention that Exhibit 8 was not authored by the University Council. The Appellant contended that Exhibit 8 ought to have been issued by the Council of the University and not by the Vice-Chancellor. I must note that the said issue was not raised by the Appellant in his pleading or grounds of appeal. As it was neither pleaded nor made a ground of appeal of the Appellant’s, it will be unwise for this court to embark on a wild goose chase, by considering a point that was never pleaded by the Appellant.
Accordingly, the point raised to the effect that the letter of termination i.e., Exhibit 8 should have been authored by the University Council is hereby not countenanced. Section 3(f) (iii) is very clear as to what it dictates that the unconfirmed employment of the Appellant may be terminated by the Vice-Chancellor by giving the requisite notice for sufficient cause or payment in lieu of notice. In the light of the aforementioned, I hereby hold that section 3(f) (iii) of Exhibit 9 is neither contrary nor inconsistent with the provisions of Statute 8.5 of the University Act. Therefore, issue No 3 is partly resolved in favour of the Appellant.
Having opined that sections 3(f) (iii) of Exhibit 9 is not inconsistent with Statute 8.5 of the First Schedule to the University of Ahmadu Bello University (Transitional Provisions) Act, the issue whether Exhibit 8 complied with the provisions as were stated, has a different dimension altogether.
With regard to issue NO.4, it was held in Bamgboye vs. University of Ilorin (supra) cited by the Appellant’s Counsel that when an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations thereunder, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of the discipline of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened, any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding. It was further held in that case, section 15 of the University of Ilorin Act confers on the University staff a “special status” over and above the normal contractual relationship of master and servant. Consequently, the only way to terminate such contract of service with “statutory flavour” is to adhere strictly to the procedure laid down in the statute. By virtue of section 15 of the University of Ilorin Act, the power to remove a member of the academic or administrative or professional staff of the University other than the Vice-Chancellor from his office on the ground of misconduct or inability to perform the functions of his office is vested only in the Council.
Furthermore, in Igwilo vs. Central Bank of Nigeria (supra) it was stated that in the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for termination. But in the termination of a confirmed officer, the procedure for termination must be followed, otherwise the termination is invalid. Where the officer is guilty of misconduct or a breach of regulation, then a lis inter partes arises and there arises also a need for a hearing before deciding his guilt. In that respect, there is a case for an administrative body acting judicially. The principles of fair hearing binding on judicial bodies are automatically imported, though the manner of hearing will still depend on the particular circumstances. It was further held in Igwilo’s case that in public employment, where the employee is qualified by appointment for a permanent and pensionable position and has actually satisfied the conditions, there should be in the interest of justice, a presumption that the employment cannot be terminated by mere notice but should be terminable only for misconduct or other specified reasons. It was also held that, the appellant’s employment into the Central Bank was definitely a public employment and, though not yet confirmed, should not be terminated merely because the appellant is not yet confirmed but should be on proven misconduct or other specified reasons.
Undoubtedly, the above-stated cases reaffirmed some valid principles of law that ought to have been considered by the trial court in its judgment.
With regard to issue No 5, it should be noted that the complaint of Counsel was not that he was not given an opportunity to file a Reply Address or that he was shut out from filing the same. His grouse was that the learned trial Judge failed to consider his Reply to the Respondent’s Counsel’s address.
It is established that address of Counsel is not called just for the fun of it or as a matter of course. It is part and parcel of the trial of a case. It was held in Eshenekera vs. Gbinije (2006) 1 NWLR Part 961 p.228 that failure to hear the address of one party, however overwhelming the evidence on one side, vitiates the trial.
Although it is an integral part of a case, and it can never take the place of evidence of the party on whose behalf it was tendered. It is therefore trite, that the addresses of Counsel are designed to aid the Court in analysing the issues of laws raised in a matter and arriving at a just conclusion of the case, but, they are no substitute for cogent and credible evidence proffered by the parties on issues propounded by them for determination. Once delivered before the Court, it functions only as a guide to the Court; it is not binding on the court. It is only compulsory for the Court to consider the issues joined by the parties in its pleadings, admitted facts and the evidence led before it. It is also interesting to note the decision in Daramola vs. A.G., Ondo State (2000) 7 NWLR Part 665 p.440 where it was stated that the omission to record in detail all the submission of Counsel and the non-reproduction of the submission when summarizing the case for the parties though undesirable may not necessarily lead to injustice or miscarriage of justice if the trial court duly considered and evaluated the evidence produced by the parties at the trial and came to a right decision.
This now answers in the negative the question raised in issue No 5 in the Appellant’s Brief. Therefore, the said issue is hereby resolved in favour of the Respondent.
One other salient point I think pertinent to consider in this judgment is the assertion and admission by the Appellant that, despite failure on the part of the 1st Respondent to terminate his employment in the way and manner stipulated in the Regulations, i.e., Exhibit 9, he received the payment of his three months’ salary in lieu of notice. This was copious in his evidence under cross-examination before the lower court. The Question now is, what effect would it have as posed by the Respondent’s Counsel on a contract of employment with statutory flavour?
In Balogun vs. University of Abuja, (2003) 13 NWLR Part 783 p.42, it was held that in contracts with statutory flavour, unless the contract of employment is properly determined in the manner envisaged by the contract of employment, an order of specific performance or reinstatement will normally be made by the court, meaning that once a finding is made by a trial court that an employment has statutory flavour, and the termination was wrongly made and void, the only consequential order that can follow such finding is the re-instatement of the employee. It was stated that the trial court having made a finding that the termination of the appellant’s employment was not in accordance with the statutory regulations that governed the employment and thus declaring the termination null and void, the only inference of that finding, was that, the employment of the appellant is deemed to be continuous. It would be as if there had never been a termination. An order of reinstatement will therefore be the only logical order to follow such finding.
It was held in Ogieva vs. Ighinedion (2004) 14 NWLR Part 894 p. 467 that an employer of employee whose appointment has statutory flavour has no right to terminate his appointment at will because the employee does not hold his appointment at the pleasure of such employer. Unilateral termination of employment with statutory flavor does not terminate a contract of employment. It would be otherwise if an employee accepts the unilateral repudiation of the contract. See also NEPA vs. Ango (2001) 15 NWLR Part 131 p.621 thus;
“A unilateral termination of employment with statutory flavour does not terminate the contract of employment. In other words, where the employee does not accept the repudiation proposed by the employer either expressly or by his conduct there could not be said to be a valid repudiation. Therefore, repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side and acceptance of the repudiation on the other”.
It was stated in many cases relating to the Common Law master and servant relationship that where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract of employment was not validly and properly determined because in such a case, his conduct could render the determination mutual. In Iloabachie vs. Philips (2002) 14 NWLR Part 181 p.264, it was held that the appellant had acquiesced in the determination of his appointment and cannot thereafter be heard to challenge his termination because the collection of his entitlement has laid to rest any contract real or imagined between the parties. Also in Angel Spinning Dyeing Ltd vs. Ajah (2000) 13 NWLR Part 685, it was held that having accepted one month salary in lieu of notice, the contract was validly and properly determined in accordance with the terms and conditions prescribed in Exhibit 1, the contract of employment.
However, in the Supreme Court case of Military Administrator of Benue State vs. C.P. Ulegbe (2001) 11 NWLR Part 141 p.194 cited by the Appellant’s Counsel, it was clearly, without any equivocation, entrenched that where an act is void abinitio, it cannot be validated by subsequent acts even if valid, because, one cannot add something on nothing. It was stated that the retirement remains void, notwithstanding the acceptance of three months’ salary in lieu of notice. Karibi-Whyte, J.S.C, stated thus:
“I am satisfied therefore that the acceptance by the respondents of the three months’ salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement”.
His Lordship, also, referred to Adeniyi V. Yaba (1993) 6 NWLR Part 300 p.426 where the Supreme Court equally held that the appellant’s application for and collection of three months’ salary in lieu of notice of retirement did not render valid the invalid and void act of unlawful and wrongful retirement. His Lordship went further to state that there is on the facts no valid notice of retirement on the respondents which could be accepted by them. The principle is now well settled that where an act is void abinitio, it cannot be validated by subsequent acts even if valid. This is because you cannot add something on nothing. See U.A.C. Ltd vs. Macfoy (1961) 3 ALL ER 1160. The retirement remains void notwithstanding the acceptance of the payment of three months’ salary in lieu of notice.
It is clear as crystal in the light of the afore-stated Supreme Court cases, that where an employment has Statutory flavour, the mere acceptance of salary in lieu of notice by the employee cannot validate the invalid and void act of termination of his employment done contrary to the stipulations of the Laws and Regulations governing such appointment.
In the instant appeal, it follows, therefore that notwithstanding that the Appellant accepted his three months’ salary in lieu of notice, the void termination of his employment cannot be validated by him.
The Appellant’s paragraphs 13, 14 and 15 of his Statement of Claim clearly showed the contest by him that he was wrongly terminated.
It is also, interesting to note that the Defendant did not call any evidence whatsoever contradicting the evidence of the Appellant nor in support of their assertions.
It is well established that a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff is deemed to have accepted the facts adduced by the Plaintiff. In the instant case, the Respondent having not called evidence in support of its pleadings is deemed to have abandoned the same.
In conclusion, it is my profound view that failure on the part of the Vice- Chancellor of the University to show sufficient reasons why the employment of the Appellant, which enjoyed statutory protection, was abruptly terminated within the first three years of his employment as prescribed by section 3(f) (iii) of the Regulations Governing the Conditions of Service of Senior Staff of the University to which the Appellant’s employment subject is a clear breach of section 3(f) (iii) of the said Regulations.
Now dealing with the reliefs sought by the Appellant, I hereby hold that reliefs (i), (ii), (iii), (iv), (v), succeed.
With regard to relief No. (vi) for payment of all arrears of salary, allowances and other entitlements due to the Plaintiff from 24th October, 2000 till the date of reinstatement by the Court and thereafter full salary, allowances and other entitlements due to the Plaintiff as an employee of the Defendants on monthly basis, I must say that the terms enumerated therein fall under the category of special damages that needed to be pleaded with clarity and particulars of the sum on each item. It is the law that special damages must be pleaded with distinct particularity and strictly proved and a Court is not entitled to make and an award of special damages based on conjecture or on some fluid and speculative estimate of alleged loss sustained by a Plaintiff. It means, therefore, that a judge cannot make his own individual or arbitrary assessment of what he conceives the Plaintiff may be entitled to. The Judge must in such a case act strictly on the hard facts presented before him which he accepts as establishing the amount awarded.
In the instant case, the Plaintiff failed to plead and adduce evidence as to the precise amount of the arrears of salary, the types of allowances and the amount he was entitled to and his other entitlements. He ought to have given these particulars, both in his Statement of Claim and evidence before the Lower Court. It is not for the Court to embark on calculation of the amount for him or even speculate how much he would have been entitled to. The items enumerated at paragraph 16 of the Appellant’s Statement of Claim definitely needed viva voce evidence of the Appellant to establish the Appellant’s accumulated arrears of income from November, 2000, but, this the Appellant wholly failed to do during his oral testimony in Court.
Since the arrears of salary allowances and other entitlements due to him from October 24th, 2000 till date had crystallized to debt, he ought to have given the exact figure of the 1st Respondent’s indebted to him and arrived at the figure, both in his pleading and evidence before the Court.
Accordingly, relief No. (vi) is hereby refused.
In respect of relief No. (vii), it would be ludicrous to grant such an order. The parties are bound by the terms and conditions of the contract of employment between them and since the Appellant’s employment has Statutory protection, he can only be removed in the way and manner directed by Statute 8.5 of the First Schedule to the Ahmadu Bello University (Transitional Provisions) Act and section 3 (f) of the Regulations made thereunder. In the final analysis, this appeal partly succeeds.
Consequently, the order made by the trial Court dismissing reliefs (i)-(v) in the Appellant’s Statement of Claim before it is hereby set aside. In its place, this Court makes the following orders;
(i) It is hereby declared that the Termination of the Appellant’s appointment by a letter dated the 24th October, 2000 is contrary to Statute 8.5 of the First Schedule to the Ahmadu Bello University (Transitional Provisions) Act and section 3(f) (iii) of the Regulations Governing the Conditions of Service of Senior Staff Members, and is therefore null and void.
(ii) It is also declared that the Appellant is still a lawful employee and still is in the service of the Defendants (Respondents) notwithstanding the Termination of Appointment letter dated 24/10/2000 given to him.
(iii) The termination of the appointment of the Appellant as an administrative officer of the Ahmadu Bello University via a letter dated 24th October, 2000 is hereby set aside.
(iv) It is hereby ordered that the Appellant be reinstated in his position with the Respondents as an administrative officer with the attendant salary, allowances, entitlements, etc.
In view of the reasons given above, reliefs (vi) and (vii) are hereby refused.
There will be costs to the Appellant against the 1st Respondent which I assessed and fixed at N50, 000.
Other Citations: (2009)LCN/3345(CA)
