Nigerian Institute of International Affairs V. Mrs T. O. Ayanfalu (2006)
LawGlobal-Hub Lead Judgment Report
AGBO, J.C.A.
The respondent in this appeal had at the Lagos High Court sitting at its Lagos Division claimed of the appellant in suit no. LD/476/94 in paragraph 15 of the statement of claim as follows:
“15 The plaintiff therefore, claims against the defendant that the letter dated the 26th day of October, 1993 in so far as it purports to terminate plaintiffs appointment with the defendant, before the consideration of her representations to the council, is invalid, procedurally irregular, void and of no effect.”
The parties exchanged pleadings. The defendant counter claimed of the plaintiff as follows:
“1 The sum of (N60,000) per month being the mesne profit of the said premises situate at 22, Idejo Street Victoria Island, Lagos from 1st February 1994 until possession is delivered up.
Alternatively:
- The sum of N60,000 per month as damages for use and occupation of the premises situate at the said 22, Idejo Street, Victoria Island, Lagos From 1st February, 1994 until possession is delivered.”
“The parties led evidence in proof of their averments in their pleadings and thereafter filed written addresses. The court in a considered judgment avoided the letter of termination dated 26th October, 1993, ordered the reinstatement of the plaintiff as Chief Accountant dismissed the defendant’s counter claim and awarded N5,000 costs to the plaintiff.
Being dissatisfied with this judgment, the defendant filed this appeal.
The grounds of appeal are set down hereunder:
Grounds of appeal
“1. The learned trial judge has no jurisdiction to entertain the respondent’s action.
Particulars of error
(a) The respondent’s cause of action, that is, letter of termination was dated 26th October, 1993.
(b) The respondent by her writ of summons instituted the action, the subject matter of this appeal on 27th January, 1994.
(c) The suit of the respondent at the lower court was instituted three months after the act complained of, time within which to commence the action having expired on 25th January 1994.
(d) By virtue of Section 2 (a) of Public Officer Protection Act Cap 379, Laws or the Federation 1990, the action of the respondent was statute-barred in that it was not commenced with three months next after the act complained of.
- The learned trial judge misdirected himself on the facts when he held that the respondent was wrongfully terminated since she was not allowed to appeal to the Council from the decision of the Appointment and Promotions Committee before her appointment was terminated.
(3) The learned trial Judge erred in law when he held thus:
“I am in agreement with the opinion expressed by the plaintiff’s counsel in his written address to the effect that if the appeal is after the termination of appointment, it would mean that non-staff would have a right of appeal, it is a matter of simple logic that once the appointment of a member of staff is terminated, he/she ceases to have the capacity or right to appeal to the Council”.
- The learned trial judge misdirect himself on the facts when he held that the termination of the respondent’s appointment without recourse to the procedure laid down and outlined under paragraph 2.13 of Exhibit P. 1 is ultra vires the powers of the appellant and therefore the termination is null, void and invalid.
- The learned trial Judge failed to exercise his discretion judiciously when he held that having held that the termination of the plaintiff’s appointment is null, void and of no effect, it followed as a matter of natural corollary that the plaintiff should be entitled to reinstatement.
Particulars
(i) An order for reinstatement must take into consideration the evidence led at the trial.
(ii) The evidence led does not make out a case for reinstatement.
(iii) Reinstatement of a civil servant is not automatic in all cases of wrongful termination.
- The judgment is against the weight of evidence.
From the above grounds of appeal, the appellant distilled three issues for determination to wit:
“I. Whether having regard to the provisions of 82 (a) of Public Officer Protection Act Cap 379, Laws of the Federation 1990, the action of the respondent at the lower court was not statute barred?
- Whether the respondent’s employment was validly terminated by the appellant in accordance with the procedures laid down in its conditions of service?
- Whether the employment of the respondent had a statutory flavour to entitle her to an order for her re-instatement?”
The respondent did not formulate her own issues for determination but rather argued the issues as formulated by the appellant.
The respondent was a Chief Accountant with the applicant. In 1993, N320,000.00 belonging to the appellant could not be accounted for. The respondent’s department had not paid the said sum into the appellant’s bank account. The appellant accused the respondent of gross negligence and caused her to be arraigned, together with some of her staff, at the Magistrate’s Court. The Magistrates Court later discharged and acquitted her. When she returned to her duty post the appellant invited her to appear before the appellant’s Appointments and Promotions Committee and thereafter by a letter dated 26th October 1993 terminated her appointment.
She then filed the suit at the Lagos High that had led to this appeal.
In his oral argument, appellant’s counsel tied ground 1 of the amended notice of appeal to issue No. I, Grounds 2, 3, 4 to issue No.2 and Ground 5 to issue No.3. 1 shall now deal with the issues raised seriatim.
Issue No. 1 – On issue one, the appellant in his written brief of argument had prepared a compendium on who is a public officer and the effect of the breach of the provisions of the Public Officers Protection Act which is a Limitation Statute. The appellant is an institute created by the Nigerian Institute of International Affairs Act Cap 311 Laws of the Federation of Nigeria 1990. It is a body corporate vested with defined public functions. It is an artificial person. It is now settled law that an artificial person set up by the state to perform functions of a public nature is “a person” within the contemplation of the provisions of the Public Officer Protection Act – See Ibrahim v. J.S.C. (1998) 14 NWLR (Pt. 534) 1. Public Officers Protection Act is a limitation statute. It is a special defence like fraud estoppel, res judicata and such like other defences which defence must be specifically pleaded by a defendant before the defence can rely on it in any proceeding. This is so to avoid taking the plaintiff by surprise. A limitation statute is not to be used to ambush the other party. Where such a defence is not pleaded by the defence in its statement of defence in the court of first instance, the defendant can neither raise it nor rely on it on appeal See Kano v. Oyelakin (1993) 3 NWLR (Pt. 282) 399; Yassin vs Barclays Bank (1968) 1 All NLR 171; Mobil Oil (Nig.) Ltd v. Coker (1975) 3 SC 175; Oline v. Obodo (1958) 5 SCNLR 298; F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281; Anyaorah v. Anyaorah (2001) 7 NWLR (Pt. 711) 158. In the instant case the appellant did not plead the defence of the limitation provisions of the Public Officers Protection Act at the lower court. It cannot rely on that defence in this court. Issue No. I is resolved in favour of the respondent.
Issue No.2 is whether the respondent’s appointment was validly terminated by the appellant in accordance with the procedures laid down in its conditions of service. On this issue, the appellant commenced its argument by attacking the non-tendering by the plaintiff in the court below of her letter of appointment. Counsel however stopped short of asking the court to avoid the judgment on that score. That was very wise of counsel because the issue raised therein is in the air as it is not covered by any of the grounds of appeal from which issue No.2 was distilled. But as rightly canvassed by learned counsel for the defence, there was no dispute between the parties as to the employment of the respondent and the terms and conditions of employment In fact in paragraph 8 of the respondent’s Amended Statement of Claim in the court below she pleaded as follows:
“8 The plaintiff confirms that she is a confirmed senior staff of the defendant who is subject to the provisions of the staff conditions of service of the defendant which is hereby pleaded.”
This pleading was expressly admitted by the appellant. What is admitted need not be proved.
The appellant is on firmer ground in its challenge of the interpretation of chapter 2 paragraph 2.13(b) of the terms and conditions of service exhibit P1, which is reproduced hereunder:
“The appointment of a confirmed officer or employee may be terminated provided that:
“(i) the employee has been notified in writing on which consideration is being given for termination of her appointment;
(ii) the employee has had an opportunity of replying to the grounds alleged against him and in the case of statutory officers of appearing in person before the Council; and in the case of other Senior Officers before the Appointments and Promotions Committee, from which an appeal shall lie to the Council. In all cases, their representations must have been considered.”
It is preposterous that an appeal should precede a decision. It does not make sense. There can be no appeal before a decision otherwise there will be nothing to appeal against. The trial court was clearly wrong in that regard. Its conclusion was clearly absurd. But that is not the end of the matter. Part of the respondent’s case at the court below was that she had earlier been prosecuted and acquitted at the Magistrates Court in relation to the alleged misconduct that led to the termination of her appointment. The court below was silent on that. But paragraph 3.02 of chapter 3 of the conditions of service exhibit P provides that:
“Where an employee under interdiction is found not guilty on all the charges, he maybe re-instated and shall receive the balance or his salary for the whole period of his interdiction.”
The respondent was interdicted. She was prosecuted and acquitted. But instead of applying the above provision of the conditions of service, the appellant proceeded to terminate her appointment. That act was clearly in breach of the laid down conditions of service. Where the judgment of a court is right but the reasons are wrong, the appellate court will not interfere with the judgment because the job of the appellate court is to determine whether the decision of the trial court is right and not whether the reasons are right – See Eberuhe v. Ukpakora (1996) 7 NLWR (pt.460) 254; A.-G. Bendel State v. A.-G. of the Federation (1982) 3 NCLR 1; Abaye v. Ofili (1986) 1 NWLR (pt.15) 134; Ukejianya v. Uchendu (1950) 13 WACA 45.
Issue No.2 is resolved in favour of the respondent.
Issue No.3 is “Whether the employment of the respondent had a statutory flavour to entitle her to an order for her re-instatement? On this issue the appellant has proffered two arguments. The first is that the employment of the respondent does not have statutory flavour and therefore the order by the court below re-instating her is wrong. The second plank of his argument is that even if we were to hold otherwise, still pursuant to Ss. 2, 12(a) of exhibit 1, she would be entitled only to the amount she would be entitled to during the normal notice period.
There are three categories of employment-
(a) A pure water/servant relationship under the common law.
(b) Employment where the office is held at pleasure
(c) Employment protected by statute – See Iderima v. R.S.C.S.C. (2005) 7 SC (Pt.111) 135; (2005) 16 NWLR (Pt.951) 378; Olaniyan v. Unilag (1985) 2 NWLR (pt.9) 599.
What the appellant is suggesting in the instant case is that the respondent held her office at the pleasure of the appellant. An employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute. The appellant has argued robustly that there is nothing in the Act establishing the appellant providing for the mode of employment and discipline of the respondent. Apart from my agreeing with the trial judge that exhibit P.1 and the Civil Service Rules are Statutory in nature, Nigerian Institute of International Affairs Act, Cap. 311, Laws of the Federation of Nigeria 1999 make provisions for the employment and discipline of staff. Reproduced hereunder are S. 4 (1), (3), (5) and S.6 (2) and (3)
“4(1) Subject to sections 5 and 6 of this Act, there shall be in the employ of the Institute such number of officers and servants as may appear expedient and necessary to the council for the proper and efficient conduct of the functions of the council.
(3) Appointment of officers and servants of the Institute other than those referred to in sections 5 and 6 of this act shall be made by an Appointments and Promotions Committee which shall be set up by the Council after consultation with the Director-General.
(5) Officers and servants of the Institute shall be answerable directly to the Director-General, who may, after due consultation with the Appointments and Promotion Committee, terminate the appointment of any such officer or servant of the Institute.
S.6(2) The power to discipline, suspend, reprimand and interdict any officer or servant above grade level 07 shall be exercised by the Appointments and Promotions Committee, provided that any officer or servant who is aggrieved by the decision of the committee may appeal to the Council through the Director-General.
(3) The power to appoint and discipline junior officers of grade level 07 and below shall be exercised by the Director-General.”
Some of these provisions are repeated in exhibit P1 which exhibit is much more detailed than the above quoted provisions. There is no doubt therefore that the employment of the respondent was protected by statute. Appellant had argued that even if her termination is adjudged wrongful, the only remedy that would avail the respondent would be damages and cited exhibit P1. However, the appellant must appreciate that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. The situation of payment in lieu of notice will apply where the court makes a finding of wrongful dismissal in favour of a servant. Where however as in the instant case a court has made a finding that the dismissal or termination of the servant was null and void, there is no dismissal or termination. What the employer did was a nullity. See U.T.C. v Nwokoruko (1993) 3 NWLR (Pt. 281) 295; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303.
This appeal must fail and it is hereby dismissed with N10,000,00 costs to the respondent.
Other Citations: (2006)LCN/2001(CA)
