Festus Mrakpor & Anor V. Police Service Commission (2016) LLJR-CA
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UDO I. NDUKWE-ANYANWU, J.C.A.
This is a cross appeal against the Judgment of the High Court of Lagos State delivered on the 6th day of October, 2006 by Hon. Justice Olufadeju.
The Cross-Appellants as Claimants took out a writ of summons against the Cross- Respondent as Defendant claiming the following reliefs:-
“(1) A declaration that the dismissal of the Plaintiffs from the Nigeria Police Force by the Defendants without proper trial is wrongful in that it violates the Plaintiffs’ fundamental right to fair hearing under the 1979 Constitution of the Federal Republic of Nigeria,
(2) A declaration that the Police Orderly Room Trial initiated and conducted against the Plaintiff in absentia and judgment thereof are unconstitutional, null and void and of not effect having been conducted in the absence of the Plaintiffs and having been based on the original offence for which the Plaintiff were discharged and acquitted.
(3) A declaration that the Police Orderly Room Trial initiated and conducted against the Applicants in absentia is a violation of the Applicants’ fundamental right to fair
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hearing under the Nigerian Constitution.
(4) A declaration that any finding, action and/or order based on the said orderly Room Trial is consequently null and void and of no effect.
(5) A declaration that the order of dismissal awarded against the Plaintiffs by the Defendants is excessive having regard to all the circumstances of this case and in particular the Plaintiffs condition of service.
(6) A declaration that the Plaintiffs are, to all intents and purposes, still in the service of the Defendants; to wit, the Nigeria Police Force notwithstanding the purported dismissal.
(7) An Order of the Honourable Court reinstating the Plaintiffs in the service of the Defendants; to wit the Nigeria Police Force with effect from 8th June, 1983,
(8) A declaration that the Plaintiffs are entitled to all accrued salaries/allowances/benefits hitherto enjoyed by them and flowing from their employment with the Defendants.
(9) An Order mandating the Defendants to pay the Plaintiffs the sum of N168,614.50 more particularly described and itemized in Plaintiff Statement of claim hereinafter filed in this action.
The Cross-Respondent on its
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part filed its Statement of defence. At the trial the Cross- Appellants testified for themselves and called no other witnesses while the Cross-Respondent failed/neglected to lead any evidence in support of their statement of defence despite series of adjournments granted to the cross-
Respondent to come defend its case. Consequently, the trial judge closed the Cross-Respondent’s case and ordered parties to file their respective written addresses.
In delivering its judgment, the trial judge while substantially granted all the reliefs of the Cross-Appellants, refused to reinstate the Cross-Appellant (on the grounds that the Cross-Appellants who were dismissed on 13th March 1983, a period of over 20 years in view of supervening events, probably policemen might have been appointed to replace the Cross-Appellant) notwithstanding her finding that the Cross-Appellants are entitled to reinstatement and without awarding damages, in lieu of reinstatement. Hence this Cross-appeal.
By an amended Notice of Appeal filed on 14th day of February, 2007, the Appellant appealed against the decision of the trial Court. On the other hand, by a notice of cross appeal
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filed on 4th day of January, 2007 the Respondents/Cross-Appellants also cross appeal against the decision. On the 23rd June, 2015 the Appellant’s appeal was struck out for want of diligent prosecution (failure by the Appellant to file its brief of argument), leaving the cross appeal.
It is the contention of learned counsel for the cross appellant that the trial judge having found that the cross appellant were entitled to reinstatement, the trial Court had no legal basis for refusing to order reinstatement. He contended that the basis upon which the learned trial judge refused to order reinstatement is not supported by any evidence before the learned trial judge. According to counsel, the conclusion by the learned trial judge that due to effluxion of time and likely supervening events, the offices of the cross appellants are likely to have been occupied by new appointments is not supported by evidence. He relied on the case of MERCHANT BANK OF AFRICA V WILLOUGHBY (1987) 1 SC; FIRST BANK OF NIGERIA PLC V AKPARABONG COMMUNITY BANK LTD (2006) AFWLR (PT.319) 927; TRANSBRIDGE CO LTD V SURVEY INTERNATIONAL (1986) 4 NWLR (PT.37) 576. Therefore that finding is
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perverse and should be set aside by this Honourable Court. He referred to the cases of WILLIAMS V OGUNDIPE (2006) ALL FWLR (Pt.327) 540; ODENGWU V.?NINAEZE (1997) 4 NWLR (PT.499) 251. He also contended that the case (i.e. IGBE V GOV. BENDEL STATE (1983) 1 SCNLR (PT.73) 436, also cited with approval in the case of GOVERNOR EKITI STATE V OJO (2006) ALL FWLR (PT.331) 1298) relied upon by the learned trial judge in refusing to order reinstatement do not apply in the instant case as the decision in those cases was based on evidence before the Court unlike in the instant case.
Counsel also submitted that even if there was evidence of “supervening events” to justify refusal to order reinstatement, the cross appellants were still entitled in law to damages as an alternative remedy. He relied on GOVERNOR OF EKITI STATE V. OJO (supra).
In concluding, counsel urge this Court to set aside the perverse finding of the Lower Court and order reinstatement of the cross appellants to the rank not below the rank of a commissioner being the rank to which they would have been promoted but for the wrongful dismissal by the cross-Respondent. As an alternative to
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reinstatement, he urged the Court to award damages to the sum of N50 Million. He justifies the amount of damages sought by reference to the financial hardship and mental agony inflicted on them over the years. He relied on the following cases; IKARE COMMUNITY BANK NIGERIA LTD V ADEMUWAGUN (2005) ALL FWLR (PT.265) 1089; AWONIYI V REGD TRUSTEES AMORC (2000) FWLR (PT 25) 1592; LAR V STIRLING ASTALDI (NIG) LTD (1977) 11-72 SC 53; BELLO V AG OYO STATE (1986) 5 NWLR (PT.45) 826; YA’U V. DIKWA (2001) FWLR (PT.62) 1987; AMAYE V ASSOCIATED CONTRACTORS (1990) 6 SCNJ 149; FEDERAL MORTGAGE FINANCE LTD V EKPO (2005) ALL FWLR (PT 248) 1667; INCAR (NIG) LTD V BENSON TRANSPORT LTD (1975) 3 SC 117.
The only question in this cross-appeal is that the learned trial judge having found that the Appellant’s were dismissed unlawfully, should have re-instated the Appellants.
The Appellants as Claimants in the Court below had claimed in item 7.
An Order of the Honourable Court reinstating the Plaintiff in the service of the Defendants; to with, the Nigeria Police Force with effect from 8th June 1983.
An employer who considers that his employment has been wrongfully
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terminated either because he was given insufficient notice or by failure of the employee to justify his dismissal may seek the following remedies namely:
(a) specific performance
(b) fair hearing.
(c) damages.
Nitel v. Akwa (2006) 2 NWLR Pt.964 page 391, Isievwore v. NEPA (2002) 13 NWLR Pt.784 page 417 at 43, 7 SCNJ page 323.
Where an employee is wrongfully removed, either by a summary dismissal which is not justified or by the giving of insufficient notice, the normal remedy to which he is entitled is damages. The main head of the damages is the salary or wages which the wrongfully removed employee would have earned up to the earliest time at which the employer could validly have terminated the employment. Thus, where the contract provides that the employer could terminate the employment by giving two months notice in writing or two months’ salary in lieu of such notice, and if the employee is dismissed without notice or salary in lieu, the employers would not be liable for more that two months’ salary.
The position of the law is that the Court will not grant specific performance on a contract of service. Therefore a declaration
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of the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and its making will normally be at the discretion of the Court. Such special circumstances have been held to arise where
a) The contract of employment has a legal and statutory flavour thus putting it over and above the ordinary master and servant relationship and
b) A special legal status such as a tenure of public office is attached to the contract of employment.
NNPC v. Idoniboye-Obu (1996) 1 NWLR Pt.427 page 655, Olaniyan v. UNILAG (1985) 2 NWLR (PT.9) PAGE 599, Shitta-Bay v. Federal Public Service Commission (1981) 1 SC page 40.
Normal practice is that an illegally removed employee has only one remedy and that is that of damages. It is rare for an employee to be reinstated in wrongly dismissed. Where however, the laid down procedure is utilized in removing an employee he cannot be heard to complain about his removal. Similarly, there is no rule of law that states that a reinstated employee cannot subsequently be removed by due process or by proper notice. Eyutchae v. NTA (1986) 5 NWLR
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Pt.41 page 395.
In most employment, the contract of service provides expressly that it is terminable by the giving of a stipulated period of notice the damages recoverable for a wrongful termination or dismissal will be the amount of wages or salary the employee would have earned during the stipulated period. If for example, a contract provides for one month’s notice then damages will ordinarily be one month’s salary or wages. See Western Nig. Development Company v. Abimbola (1996) 1 All NLR page 159, Obot v. CBN (1993) 9 SCNJ page 368.
It is therefore correct to say that the learned trial judge was right in refusing the claim to re-instate the Appellants. The only damages the Appellants are entitled to is that of salary in lieu of notice.
Unfortunately, the Appellants did not plead the period of notice they are entitled in their employment contract. They are entitled to the number of the month’s salary in lieu of notice. The Appellants did not plead salary in lieu of notice.
However, this Court will under Section 15 of the Court of Appeal Act deal with the issue of notice in lieu. The 1st Appellant Festus Mrakpor earned N33,099.00 for 3
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months is N99,297.00. The 2nd Appellants earned N33,099.00 for three months, the 2nd Appellant would have earned N99,297.00.
Both Appellants are therefore entitled to 3 months salary in lieu of notice since it was not pleaded.
This cross-appeal succeeds partially in that, the Court cannot order re-instatement. The Court has jurisdiction to offer 3 months in lieu of notice in respect of the wrongful termination of employment.
The Appellants are entitled to N99,297.00 each in lieu of three (3) months in lieu of notice.
I make no orders as to costs.
Other Citations: (2016)LCN/8654(CA)
