Mr. Ujam Hillary Ujam V. Institute of Management & Technology & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal by the appellant, as plaintiff against the judgment of Kingsley N. Ude (J.) sitting in an Enugu State High Court delivered on 17/10/2005. The plaintiff claimed against the defendants, now the respondents as follows:
“(a) A declaration that the letter ref: IMT/RG/11/XX/124 dated the 1st day of March, 2001, signed by S.N.P. NWANKWO, Ag. Registrar/Secretary to Council and addressed to the plaintiff and purportedly dispensing with his services with the first defendant with effect from 1st March, 2001 is ultra vires, unconstitutional, null and void and of no effect whatsoever in that it proceeded from an exercise done in total violation of the provisions of the Institute of Management and Technology, Enugu Edict No.2 1991, Institute of Management and Technology, Enugu Senior Staff Conditions of Service and the rights guaranteed the plaintiff under Chap. 4 of the Constitution of the Federal Republic of Nigeria, 1999.
(b) A declaration that the plaintiff’s employment with the Institute of Management and Technology, Enugu is still subsisting and accordingly the plaintiff is still in the employment of the Institute notwithstanding the letter dated 1st March, 2001 purportedly dispensing with his services with the Institute.
(c) A declaration that the plaintiff, being still in the employment of the first defendant is entitled to his full and enhanced remuneration, entitlements, and perquisites of office as Lecturer II in the employment of the first defendant’s Institute.
(d) An order directing the defendants, their agents, servants, officers, privies or otherwise howsoever called to reinstate and restore the plaintiff to his employment with the first defendant and restore the plaintiff to his employment with the first defendant with his full and enhanced salaries, entitlements, allowances and all other rights and privileges appurtenant thereto.
(e) An order of perpetual injunction restraining the defendants by themselves their agents, servants, privies, officers and other such representatives howsoever called from further interfering with the plaintiffs performance of his duties or preventing him from the performance of his functions and duties of his office as an employee of the first defendant or in any other manner interfering with the plaintiffs enjoyment of the rights, privileges and benefits appurtenant to his office.
(f) Alternatively, the sum of N15 million being the plaintiff’s projected salaries and allowances for a period of thirty-one (31) years up to the age of retirement from the services of the first defendant institute had the services not been wrongfully dispensed with by the defendants.
(g) General damages for unlawful interference with the plaintiffs employment N50 million.”
Upon exchange of the parties’ pleadings, the matter proceeded to full trial. Appellant testified. He called no other witness. The respondents did not call any witness. At the close of hearing the learned trial Judge awarded the appellant three months salary in lieu of notice of termination and further the sum of N1,000,000. (one million) as damages.
Appellant being dissatisfied with the judgment now appeals to this court filing notice of appeal containing five grounds. It is needless for me to reproduce the grounds with their particulars. However in compliance with the rules and practice of this court parties filed and exchanged their briefs of argument with the appellant filing a reply brief.
The appellant in his brief formulated the following three issues for determination in this appeal.
“3.1 Whether the trial Judge was right in holding that the employment of the plaintiff has no statutory flavour or statutory protection.
3.2. Whether the trial Judge was right in holding that the letter dated March 1, 2001 signed by the 4th defendant and given to the plaintiff determined the plaintiff’s employment.
3.3 Whether the trial Judge was right in entering judgment in favour of the plaintiff in terms contrary to and against the plaintiff’s prayers in paragraph 36(a), (b), (c), (d), (f), and (g) of his statement of claim.”
The respondent has submitted two issues for determination in this appeal as follows:
“01. Whether the appellants (sic) were within their right under section 29(i) of Edict No.2 of 1992 of Enugu State to remove the appellant from office.
- If the answer is yes whether the appellant was entitled to any other right on being removed from office other than three months notice or three months salary in lieu of notice.”
I will adopt the three issues in the appellant’s brief of argument for the determination of this appeal, but needless taking them separately.
The appellant’s main contention is that the Institute of Management & Technology Edict of 1991 and the Senior Staff Conditions of Service confer statutory flavour or statutory protection on his terms of employment and as such his employment with the 1st defendant cannot be terminated without strict adherence to the provisions of the statute and or the said senior staff conditions of service. The respondents have put up contrary argument to the effect that there is no guaranteed tenure of office for the appellant in the said Edict and that his employment is that of contract service between master and servant. It is submitted that in such a situation parties to the contract have the light to terminate the contract for any reason or for no reason at all provided that in doing that the respondent act within the four walls of the contract of employment in order to justify the termination of the appellant’s employment. Reliance was placed on NEPA v. Enyong (2003) FWLR (Pt. 175) p. 452.
The appellant further contended that the letter dated 1st March, 200 1, signed by the 4th defendant which has the name “Ujam H. of Science Technology DepaI1ment” of the 1st respondent, did not and has not terminated his employment with the 1st respondent considering the intemal memo of the first respondent dated 9/3/2001. The appellant’s claim is that the letter dated March 1, 2001 was issued before the meeting of the Council on 9/3/2001 and as such did not emerge from an authority with power to terminate his employment, in a manner it did, without considering the provisions of the statute affecting his employment.
The appellant finally submitted that having proved his case, he was entitled to his claims. He relies on the cases of Ekpenyong v. Nyong (1975) 2 SC. 71; Bola Ige v. Olunloyo (1984) 1 SC 258 at 276; (1984) 1 SCNLR 158.
The respondents on their own part have submitted that the appellant’s appointment has been effectively terminated in exercise of their right as provided for in section 29(1) of the Enugu State Edict No.2 of 1992. They argued therefore that different considerations govern wrongful termination on one hand and invalid or illegal termination on the other hand. It is explained that in wrongful termination or dismissal, the defendant is only liable in damages while in invalid termination or dismissal the courts have held that there is no valid termination or dismissal Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; Kabel Metal (Nig.) Ltd. v. Ativie (2001) FWLR (Pt. 66) 662 at 674 – 675. It is submitted that the letter exhibit “k” which conveys the removal of the appellant was on the basis of reorganization at the Institute. This is provided for in section 27(1) of the Edict and supported by S. 29(1) which gives the Council powers to remove any staff by giving him three months notice of intention to do so or three months salary in lieu of notice. It is further argued that where there is a written provision for terminating the contract of employment and the said provision is breached what the employee should be entitled to would be the salary for the period of notice, which the employer would have given to terminate the employment of the employee and any other legitimate entitlements due to him at the time the employment was brought to an end.
It is submitted that the award of one million naira as general damages to the appellant was made without any legal basis or consideration.
The appellant’s case is that he was employed by the 1st respondent in 1993 as a Lecturer on Grade Level 07 step 11 vide exhibit ‘A’. His appointment was confirmed by exhibit ‘D’ and later promoted to Lecturer III on EUSS 8 step 4 in 1998 vide exh. ‘G’. Between 1998 and 2001 the appellant’s grade rose to EUSS 8 step 9. On 1/3/2001 appellant’s appointment was terminated by the 2nd defendant vide a letter dated 1/3/2001 signed by the 4th defendant. The appellant was given the letter of termination of employment on 17/4/2001 vide exhibit ‘K’. The letter of termination of the appellant’s employment was dated 1/3/2001, whereas the internal memo of the 1st respondent dated 9/3/2001 signed by the 4th respondent and issued to bursar and other principal officers of the Institute shows that the 2nd respondent met only 9/3/2001 and determined the employment of some staff.
At common law, the well established principle is that ordinarily, a master is entitled to dismiss his servant from his employment for good or for bad reason or for no reason at all. Consistent with this principle, is also the law that the court will not impose an employee on the employer. Hardly does the court to order for specific performance of contract of employment. In order words, it is an aberration that is rarely made. Often, the only remedy the servant has is to claim for the wrongful act of his master, because the master has the right to hire and fire for good or for bad reason. The court cannot compel the employer to continue to keep an employee it does not want. On the other hand no employer could prevent an employee from resigning from his employment to seek elsewhere for “greener” pastures. Where the termination is wrongful, the servants remedy lies in a claim for damages.
The appellant’s claim against the respondents is for wrongful termination of his employment with statutory protection. Generally a plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts.
(a) that he is an employee of the defendant;
(b) the terms and conditions of his employment; and
(c) the way and manner and by whom he can be removed. In this country there are three types of employer/employee relationships with different consequences, viz:
(1) Under the common law, where in the absence of a written contract, each patty could abrogate the contract on a week’s or month’s notice, or on payment of wages for a week or month or whatever the agreed period for payment of wages.
(2) Where there is a written contract of employment between an employer and employee, in such a case the court has a duty to determine the rights of the parties under the written contract.
(i) Public Servants – where their employment is provided for in a statute and/or conditions of service or agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599.
(ii) Public Servants – as in the civil service, such as in the case of Shitta Bey v. Federal Public Service Commission (1981) 12 NSCC 28; (1981) 1 SC 40.
In the instant case, the very important question to be asked is whether the appellant’s employment with the 1st respondent is clothed with statutory flavour. This goes beyond question of fact alone. It is issue of law as well. The appellant in his evidence-in-chief and under cross-examination, at the trial, stated that the 1st respondent is a creation of Edict No.2 of 1991 and that his appointment, promotion, discipline, termination must be in compliance with the statute establishing the Institute. In paragraph 18 of the statement of defence, the respondents admitted that the appellant’s employment has statutory flavour. But whether or not the parties admitted that the appellant’s employment has statutory flavour it is the function of the court to come to that conclusion after going through the statute creating the body. See Iloabachie v. Phillips (2002) 14 NWLR (Pt. 787) 264 at p. 283. That the 1st respondent is a creation of statute is not in doubt. It is a creation of Edict No.2 of 1991. As I have stated where the provisions of a statute govern the conditions of employment of an employee the courts regard the employee as having secured a special legal status, other than the ordinary master-servant relationship with his employer. In that case the employer is bound to comply with these conditions, otherwise his act of termination would be declared wrongful, null and void. Again, where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour. This is still so, notwithstanding the fact that the employer is a creation of statute or is a statutory corporation. The fact that an organization or institution is a statutory body does not mean that the conditions of service of its employees are protected by statutes. See Fakuade v. OAUTH (1993) 5 NWLR (Pt. 291) 47. Conditions of Service which will give statutory flavour to a contract of service cannot be a matter of inference. They must be conditions which are set out by statute. See Idoniboye Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589 at 631. In UMTHMB v. Dawa (2001) 16 NWLR (Pt 739) 424 the respondent was at all material times an employee of the appellant. His terms of employment were embodied in a letter of appointment dated 29/11/93 tendered at the trial as exhibit ‘D’. Paragraph 7 of exhibit ‘D’ contained a termination clause by which the employer or employee could terminate by three months notice to the other or pay salary of three months in lieu. Paragraph 8 of exhibit ‘D’ stated that the employment is subject to terms and conditions set out in the provisions of the University Teaching Hospital (Reconstituted Boards) Decree No. 10 of 1985 now Cap. 463 of the Laws of the Federation of Nigeria, 1990. By a letter dated 6/5/97, the appellant purported to dismiss the respondent with “immediate effect on grounds of gross misconduct”. No previous query was issued to the respondent and he was never confronted with any allegation of misconduct. The court held that his employment was governed by the provision of Decree No. 10 of 1985.
In the instant case, the Senior Staff Conditions of Service was tendered as exhibit ‘H’. It was revised in 1987. It is therein described as a “REGULATION”. In its citation it is provided thus: “These regulations may be cited as the Institute of Management and Technology Enugu, Senior Staff Conditions of Service.”
The conditions of service is made applicable to “all Senior Staff of the Institute”. It made provisions for appointment into all categories of both academic and non-academic senior staff positions, probation and confirmation, acting appointments, salaries, increments, cessation of employment, disciplinary procedures, dismissals, resignations, termination, notices, passages, vacations, allowances leave etc. Section 20 of the Edict made provisions for appointment of Deputy Director, Director of Schools and Heads of Department by the Council of the Institute on the recommendation of the Rector. The section also provides for the other members of the academic staff and non-academic staff who shall be appointed by the Council on the advice of the “Appointment and Promotion Committee”.
Section 27(1) of the Edict also provides that the Council shall have power to remove from office any member of the academic or non-academic Senior Staff on grounds of public interest or Institute interest or indiscipline, misconduct or inefficiency or for reason of reorganizations.
Section 28 provides for the procedure for the removal by the Council of certain senior academic and non-academic senior staff from office by giving notice of such intention to remove from office.
Reading exhibit ‘H’ (the Senior Staff Conditions of Service) carefully, it would appear that the Senior Staff of the Institute including, the appellant are covered. This document guides their employment with the 1st respondent. In Idoniboye-Obu v. NNPC (supra) where in a similar situation, a Condition of Service was drawn up, the Supreme Court per Tobi, JSC held that –
“An employment is said to have a statutory flavour if the employment is directly governed or regulated by a statute or a section or sections of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section or sections of the statute must clearly and unequivocally govern or regulate the employment of the plaintiff and must be unmistakably clear in the provision as to delegated legislation. The regulations and or the conditions of service must be implicitly borne out from the section or sections delegating or donating the authority. In other words, there must be clear nexus between the delegating section or sections and the regulations or conditions of service conveying a legal instrument or document which is of similar content. In such situation, the regulations or conditions of service must commence with the provision of the enabling statute; something to the following effect or purport and as it relates to this appeal.”
His Lordship concluded that the conditions of service governing the employment of the employee therein, has a statutory flavour. In the instant case I agree with the learned counsel for the appellant that his employment is regulated by Edict No.2 of 1991, S.2 of the Edict which expressly defines his category of employment, which is academic staff; the fact that the respondents admitted in paragraph 8 of their statement of defence. The appellant claim is that the Edict particularly S. 29(1) of the Institute Senior Staff Conditions of Service from the Master/Servant, employer/employee relationship. In paragraph 18 of the respondents’ statement of defence, they admitted that averments of the appellant that the appellant’s employment has statutory flavour. They did not give evidence, but relied on the unchallenged, uncontradicted evidence of the appellant in accordance with his statement of claim. When a party fails to give evidence in support of his pleadings, he is deemed to have abandoned the same. See Yashe v. Umar (2003) 13 NWLR (Pt. 838) 465; Ajero v. Ugorji (1999) 7 SCNJ 40; (1999) 10 NWLR (Pt. 621) 1; and Eseigbe v. Agholor (1993) 12 SCNJ 82; (1993) 9 NWLR (Pt. 316) 128.
The respondents having admitted the fact that the appellant’s employment has statutory protection cannot vary that admission in address to say that the appellant’s employment has no statutory protection. See Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt. 840) 323 at 349.
With due respect to the learned trial Judge he was wrong when he held the “candid view” that the employment of the appellant does not have statutory flavour or protection. He did not advert his mind to the statute, the admission of the respondents, the content of the senior staff conditions of service and all the case laws cited and relied upon by the appellant. It is not what the court thinks reasonable that matters in construing an Act of Parliament, but rather the words and sentences used in a statute must be construed in their ordinary and natural meaning. Learned trial Judge held that sections 27 and 28 of the Edict did not provide enough in matters of discipline. It must be noted that S.27 is not for matters of discipline, rather it establishes the power vested in the Institute Council. However section 28 clearly lays down the procedures for the discipline of academic and non-academic Senior Staff from office for misconduct, inability to perform the function of office, inefficiency and so on, by setting up investigation committee or committees by the Rector and the reporting of their findings to the Council for necessary action.
The learned trial Judge was also inconsistent in its judgment. In one breath he held that the employment of the appellant has no statutory protection, in another breath the court held that the respondents refused or neglected to comply with the provisions of the Edict and the Conditions of Service directed them to do as it affects the appellant and yet in another the court entered judgment for the appellant on terms different from what was sought for or canvassed. By giving a different coloration to the enactment, this gives rise to reason for the wrong conclusions in the final judgment of the court.
My attention has been drawn to section 43 of the Edict. This section gives force to the Institutes Senior Staff Conditions of Service, which made some regulations under the Edict in the following manner:
“S.43(1)Subject to subsection (2) of this section the Institute of Management and Technology Edict, 1973 as amended by the Institute of Management and Technology (Amendment) Edict No. 23 of 1987 shall cease to have effect in the State.
S.43(2) All regulations, rules or other subsidiary legislations made under the Edict repealed by this section and in force immediately before the date of commencement of this Edict, shall until such regulations, rules or other subsidiary legislations are revoked or superseded by other regulations, rules or other subsidiary legislations have effect in respect of the Institute with such modifications or adaptations as may be necessary to bring them into conformity with the provisions of the Edict.
S.43(3) All regulations, rules or other subsidiary legislation having effect by virtue of subsection (2) of this section shall be deemed to be made under this under this Edict.”
The Senior Staff Conditions of Service – Regulation (revised in 1987) is derived from Edict of 1973, 1978 and 1987. See Ss.2.2, 11.3, 11.3(d)(iii) which was in force before December 1991, the date for commencement of the Edict of 1991. This is still in force at the Institute by virtue of S. 43(1), (2), (3) of the Edict of 1991. This was again admitted by the respondents in paragraph 8 of their statement of defence. In Shitta Bey v. The Federal Public Service Commission (1981) 1 SC 40, in his lead judgment, Idigbe, JSC (of blessed memory) said:
“If the rules are directly traceable and are traced to a constitutional provision, such rules must be rightly recognized as having constitutional force and by extension statutory flavour”.
As indicated above, the appellant contends that both the Senior Staff Conditions of Service and Institute’s Edict of 1991 in Ss. 2, 20, 28 and 29 protect his employment as an academic staff in a manner different from master, servant relationship. The Edict and the Conditions of Service regulate the appointment, promotion, discipline and termination of appointment of the appellant’s category of employment. See again 1, 2, 10 of the Institute’s Senior Staff Condition of Service.
The appellant has also contended that the letter dated 1/3/2001 signed by the 4th respondent which has the name “Ujam H. of Science Technology Department” of the 1st respondent but given to the appellant, “Ujam H. Ujam of General Studies” did not and has not terminated the appellant’s employment with the 1st respondent considering the internal memo of the 1st respondent dated 9/3/2001, which states that the 2nd respondent on its 129th Meeting held on 9/3/2001 determined the employment of some staff among which is the appellant with staff No. 1468 – No. 11 on the list (exhs. “J, 11 – J4”). It is contended that both letter of 1/3/2001 and internal memo of 9/3/2001 did not follow the provisions of the Edict and or Conditions of Service and as such are null and void and of no effect. The appellant’s claim is that the letter was issued before the meeting of the council and as such did not emanate from an authority with power to terminate his employment in a manner it did without considering the provisions of the statute affecting the employment of the appellant. This was admitted in paragraphs 11 and 12 of the statement of defence. Sections 29(1) of the Edict and S. 2. 19(a), (e), (j), (k) are set out as follows:
“S.29(1) The Council may – (1) on grounds of redundancy resulting from reorganization of the Institute remove from office such of its academic or non-academic Senior Staff as may be affected by reorganization after giving such affected staff a minimum of three months notice of its intention or in lieu thereof on payment of such affected staff three months salary.”
S. 2.19(a),(e),(j),(k) of the Institutes Senior Staff Conditions of Service states:
“(a) An appointment may cease on grounds of dismissal, termination, resignation, retirement, redundancy, incapacity or death.
(e) The Institute may in writing terminate a permanent appointment any time subject to three months’ notice to academic and non-academic staff or payment of three months salary in lieu of notice subject to regulations in 2.19(k) below.
(j) Subject to the provision in section 2.19(k) below an appointment may be terminated by the Institute on any of these grounds.
(i) Grave misconduct including fraud and moral turpitude.
(ii) Indiscipline
(iii) Proven inefficiency
(iv) Ill health resulting in infirmity of mind or body duly certified by an approved Medical Board.
(k) A member of Staff shall not be terminated on the ground of J(i)(ii) and (iii) unless
(j) He has been given adequate opportunity of making representations in person on the matter to the Council or a body duly appointed by it or to be represented by another person.”
My careful perusal of the letter conveying the appellant’s termination of his employment with the 1st respondent, show that the provisions in the Edict or the Senior Staff Conditions of Service has not been complied with. Employment with statutory protection must be terminated in the way and manner prescribed by the statute. Any other manner of termination of the employment which is inconsistent with the relevant statute is null and void and of no effect. See Iderima v. R.S.C.S.C (2005) 16 NWLR (Pt. 951) 385; and NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627 at 631.
I have earlier observed that S. 28 of the Edict specifically provided for the discipline of members of academic and non-academic Senior Staff while section 29(1) is on the procedure for the termination of employment of academic Staff and non-academic Staff. The Edict did not provide for “rationalization”, exhibited in the letter of 1/3/2001 and internal memo of 9/3/2001 purporting to terminate the appellant’s employment. In appellant’s case the internal memo of the 1st respondent which was admitted shows that the 2nd respondent at its 129th meeting held on 9/3/2001 terminated the employment of some staff among whom was the appellant. This was admitted in paragraphs 11 and 12 of the statement of defence.
I agree with the learned counsel for the appellant that both the letter dated 1/3/2001 and the Internal memo of the 1st respondent dated 9/3/2001 did not follow the provisions of S. 29(1) Edict of 1991 and S. 29(a), (e), U), (k), of the Senior Staff Conditions of Service set out above and are therefore void and unconstitutional. See Iderima v. R.S.CS.C (supra); Ogieva v. 19binedion (2004) 14 NWLR (Pt. 894) 467.
The appellant having proved his case in accordance with the provisions of the statute, the admission of the respondents; and the case law, he is entitled to judgment in accordance with his prayers in paragraph 36(a), (b), (c), (d) and (e) of his statement of claim.
From the foregoing therefore, the issues considered in this appeal are resolved in favour of the appellant. There is merit in this appeal and I hereby allow it. The judgment of the learned trial Judge delivered on 17/10/2005 and the consequential reliefs granted therein are hereby set aside. I accordingly order for the reinstatement of the appellant forthwith and his full entitlements and perquisites of office as Lecturer II in the employment of the 1st respondent.
The respondents shall pay costs of N7,500.00 to the appellants.
Other Citations: (2006)LCN/2015(CA)
