J. A. Irem V. Obubra District Council And Others (1960)

LawGlobal-Hub Lead Judgement Report

ADEMOLA, CJF

The appellant in this case was employed by the respondents as a Court Clerk in the Bahumunu Clan Court, in Obubra District, with a salary of £120 per annum. He had been so employed since August, 1938, and in 1957 when this case was heard in the High Court he stated he was 40 years of age

Owing to the reorganization of the Courts in the area, it was decided that the appellant be retrenched as he was supernumerary to the establishment. He was accordingly notified in writing that his appointment was being terminated, but he was to be given all necessary benefits he was entitled to on retirement from the service of the Local Government. The appellant, it would appear, protested and suggested malice on the part of the Chairman of the Obubra District Council, for the termination of his appointment. He caused his solicitor to serve a notice on the respondents that he was suing them. He eventually brought an action claiming £5,000 damages for wrongful termination of his appointment.

In his statement of claim, the appellant averred that his appointment was wrongfully terminated by the Council on the 14th August, 1955, without first obtaining the approval, in writing, of the Minister for Internal Affairs as required by Section 95 of the Eastern Region Local Government Law, 1955 (No. 26 of 1955), and that in any case the termination of the appointment was motivated by malice on the part of the Chairman of the Council.

On the 19th December, 1955, the case came before Betuel, J., for hearing. Mr. Anyaduba, for the defendants/respondents, raised a preliminary point that the issue raised in the plaintiff/appellant’s writ was one of termination of appointment to which section 95 of the Eastern Region Local Government Law would not apply since that section specifically applies in cases of dismissal. The section enacts as follows;

“95.     No person appointed, engaged or employed by a Council in any capacity shall be dismissed by a Council for any reason without the approval of the Minister in writing”.

The learned Judge was of the opinion that it was early at that stage, on the argument adduced, to strike out or dismiss the plaintiff’s claim. He therefore ordered pleadings. I only need add that at that stage pleadings had already been filed but nobody directed the learned judge’s attention to this fact and counsel were content with that order.

After the lapse of a year on the 7th December, 1956, the case came before Ainley, C.J. Mr. Anyaduba did not raise his objection again before the learned Chief Justice and after the case had gone through another process of adjournment, it proceeded to hearing on the 11th June, 1957, before the learned Chief Justice.

In a carefully worded and lengthy judgment the learned Chief Justice rejected the allegation of improper motive or malice on the part of the Chairman. He further came to certain conclusions which he summarised as follows:

“a.     The Council did resolve that the plaintiff’s employment should be terminated.

b.     In so resolving, they acted honestly and without any improper motive.

c.     The Minister’s approval was necessary before the plaintiff’s employment could lawfully be terminated.

d.     The Minister approved the termination of the plaintiff’s employment albeit he did not do so until 29th November, some weeks after this action was begun, and three months after the plaintiff had ceased to work for the Council.”

The learned Chief Justice then continued:-

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The plaintiff’s right to receive wages could not, under the Statute, cease until the Minister gave his approval to the termination of the contract of employment. That approval was not given until the end of November, 1955. The plaintiff is, therefore, entitled at least to a sum representing his wages from 12th August, 1955, to the end of November. It could be argued that the Minister had no power to do all he sought to do, that is to make his approval retrospective. But we must assume that he properly considered what I have held to be an honest and reasonable resolution by the Council, and he certainly approved the resolution. I do not think that the Council’s resolution and the Minister’s approval of that resolution can be regarded as nullities. They are facts, and facts which appear to me to satisfy the Statute.

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I cannot see that they (the Council) should be required to do more than repay what they should have paid during the period 12th August to the end of November.

I therefore award the plaintiff the sum of £30 and there is judgment for the plaintiff for that sum.

Mr. Araka for the appellant has attacked this judgment on the ground that the approval of the Minister is a condition precedent to the giving of the notice of termination of the appellant’s appointment by the Council and that it was not possible for the Minister by giving his approval later to validate the original notice of the termination of the appellant’s appointment by the Council which was bad; that it was necessary for a new notice to be served on the appellant. With respect to the learned Chief Justice, I would myself agree with the submission of the learned Counsel for the appellant on this point. But the matter does not rest there. The gravamen of the whole matter, to my mind, is in the earlier submission made by Mr. Anyaduba before Betuel, J., and as the point has now been fully argued before this Court, we are in duty bound to consider it.

Mr. Araka for the appellant has submitted that as there is no provision made in the law for the termination of the employment of the public servants of the Local Government, it should be inferred that the appointments of public servants working for Local Government Councils cannot be terminated. I think this is a fallacy. Like the learned Chief Justice, I am unable to say that speck provisions are made in the Eastern Region Local Government Law for determination of their public servants except by dismissal (section 95) or retirement on attaining the age of compulsory retirement (section 98), and I see no specific provision dealing with termination of employment in other ways, but I would hold the power to enter into a contract of employment implies the power to terminate the contract.

In his summing up of the conclusions he arrived at, the learned Chief Justice in (c)(supra) has to my mind given the interpretation to section 95 (which I have set out above) of the Local Government Law as covering not only dismissal, but termination. With respect, I find it difficult to agree with this view. A dismissal from the service carries such infamy that a termination does not carry. One finds, as in the present case, that the appellant was entitled to certain benefits like gratuity, etc., which under pain of dismissal he would not be entitled to. Instruments in pari materia such as the Colonial Regulations and the Pensions Ordinance, 1951, distinguish between the dismissal of an officer and the compulsory termination of his service in other ways, and an examination of section 98 and 104 of the Local Government Law under consideration strengthens the view that it was not intended that “dismissal” and ‘termination” be used as synonymous words in the Law. Section 104 gives powers to the Minister to make Staff Regulations for Local Government Councils and subsection (b) gives him power to make regulations “regulating appointments, remunerations, increments, promotions, termination of appointments, dismissals and leave. It does not appear, however, that a Staff Regulation has been made. Section 95 of the Law (Local Government Law) therefore, in my view, deals with cases of dismissal only and will not apply in cases of termination of appointment as in the present case. The result, therefore, in the view I take, is that the approval of the Minister will not be necessary to terminate the appellant’s appointment. It seems reasonable to me that this should be so on account of the grave inconvenience it will cause for any Local Council to have to await the approval of a Minister before it terminates the appointment of its road labourer.

Counsel for the appellant has referred us to the case of McClelland v. Northern Ireland General Services Board (1957) 2 All E. R. 129 as authority for the view that as there was no provision in the Local Government Law for the termination of the employment of a Local Government officer, it was not possible under the Law for any Local Government to terminate the employment of any of its servants.

My view of the case is that it has not laid down such a proposition. The case was one of wrongful dismissal based on a written contract of employment laying down specifically conditions upon which the employment could be terminated, and has no application to the present case.

The net result is that the appellant’s case before the learned Chief Justice should have been dismissed: he was fortunate to have had judgment in his favour for the sum of £30.

His appeal in this Court will, therefore, be dismissed with costs to the respondent assessed at 27 guineas.

Appeal dismissed.

Other Citation: (1960) LCN/0847(SC)