LawGlobal-Hub Lead Judgment Report
Per ADEMOLA, C.J.N.
When we heard this appeal at Enugu on the 6th February, 1964, we dismissed it for want of substance and indicated we would, in due course, give our reasons for the dismissal.
The claim was made in the High Court of Onitsha Division in the Eastern Region, for wrongful dismissal. A sum of £2,500 was claimed but the Judge awarded the plaintiff £625-9s-9d as damages.
The plaintiff worked for about twenty-five years, in different capacities, in the Okigwi Native Administration and later for the Okigwi County Council which took over the functions and obligations of the Native Administration. The plaintiff’s services to the Council were pensionable; he was interdicted from duty in January 1956 and later, on the 1st June, 1956, he was dismissed. He brought the action for unlawful dismissal on the ground that the meeting of the Staff and General Purposes Committee which recommended his dismissal by a resolution of the Committee was not properly constituted as the requisite quorum was not formed; that the resolution was therefore null and void and the subsequent adoption of it by the General Council was equally without effect; and that the approval which the defendant/appellant later gave to the dismissal was a nullity.
These issues were resolved in favour of the plaintiff/respondent by the learned Judge who entered judgment in his favour.
For the Minister of Local Government, two grounds of appeal were filed. The first ground was the lack of evidence that the plaintiff had failed to serve a notice of his intention to sue the defendant in accordance with Sec. 205 of the Eastern Local Government Law No. 26 of 1955. We did not allow arguments on this ground to proceed as it raised a new issue, since it was never pleaded, nor was the point raised at any time during the hearing in the Court below. Again, it would have been necessary for the appellant to apply to this Court for leave to call additional evidence and there was no application of that nature before us.
The only ground argued, therefore, was that of alleged misdirection on the part of the learned Judge in holding that the resolution for the dismissal made by the Staff and General Purposes Committee is invalid. For this, Mr. Okadigbo, Senior State Counsel, relied on Rule 44 of the Standing Orders of Okigwi County Council and sec. 37 of the Local Government Law E.R. No. 26 of 1955. This law was repealed and substituted by Local Government Law E.R. No. 17 of 1960. Sec. 37 of No. 26 of 1955 is reproduced in Sec. 41 of No. 17 of 1960. The section merely states that:
“(1) The provisions of the First Schedule have effect as respects the business and proceedings of councils or committees of councils and of joint committees of councils.”
Turning to the First Schedule of No. 17 of 1960, it reads:
“15. The proceedings of a council or of a committee of it shall not be invalidated by
(a) a vacancy among its members, or
(b) the want of qualification of a councillor.”
Now, Rule 44 of the Standing Orders of the Okigwi County Council deals with Quorum of Committees: it states:
“No business shall be transacted by or at a meeting of any Committee or sub-Committee unless at least one-half of the whole number of the Committee (including ex officio members) are present, or seven members in the case of Finance Committee and eight members each in the case of Roads and Works and Medical and Health Committees.”
As the Committee here is not the Finance Committee, or the Roads and Works Committee, or the Medical and Health Committee, it is clear that at least half of the members of the Staff and General Purposes Committee constitute a quorum. The number of members in the committees is laid down by Standing Order as 16. It is common ground that four members have resigned and at the time the resolution to dismiss the respondent was taken there were only twelve members left on the Committee. Six of them were present at the meeting when the decision to dismiss the respondent was taken.
The argument the learned Senior State Counsel proffered was that as the number of members was reduced to twelve due to the resignation of four members, the quorum required by Rule 44 of the Standing Orders is half of that number, namely six. In support of his argument he referred us to the case In re Bank of Syria [1901] 1 Ch. D. 115. In that case, the then two directors of a company, who had so acted for several years, gave securities to two persons for debts of the company amounting to some thousands of pounds. The seal of the company was affixed to the document in the presence of the two directors. It transpired that sometime earlier a resolution had been passed that the affairs of the company should be managed by three directors and that the directors might determine the quorum necessary for the transaction of business. It was not proved that any resolution fixing a quorum had been passed by the directors. It was held that the securities so given were binding on the company despite the fact that only two directors gave them.
We do not think that this case can be properly applied to the instant case. Without going into other points of difference, it is enough to say that it would be inequitable for innocent creditors in that case to lose their monies as a result of the action of two directors who had carried on the business of the company, though improperly constituted as far as the company was concerned, for several years, and who are estopped from denying their own conduct. We need not go into other points of difference in this matter.
Sec. 44 of Standing Orders of the Council in this case clearly states that at least half of the members of the Committee shall form a quorum; the fact that the number of members of the Committee diminished, would not, in our opinion, reduce the number of members constituting the Committee. To accept the learned Counsel’s submissions will be to reduce the section of the Standing Order to an absurdity; more members may resign and the Committee may easily be reduced to four or a lesser number.
For the foregoing reasons we dismissed the appeal of the Minister of Local Government, Eastern Region, for lack of substance, and awarded thirty-two guineas costs in favour of the respondent.
Other Citation: (1964) LCN/1129(SC)
