Nigerian Telecommunication Ltd. V. Simon Ugbe (2001)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The plaintiff before instituting an action was an assistant chief commercial superintendent in the services of Nigerian Telecommunications Plc. Later he received a letter dated 27/2/97 dismissing him from his post. The dismissal letter stated, among others, that “in the public interest, your services with Nitel Ltd. are no longer required. You are therefore dismissed with effect from 26th February, 1997, under the provisions of Decree No. 17 of 1984. The plaintiff hereinafter referred to as the respondent approached the Federal High Court Abuja by way of filing an originating summons challenging his dismissal. In effect, the summons sought to nullify the letter of dismissal dated 27/2/97 served on him by the appellant herein. Before the commencement of the hearing before that court, Nigerian Telecommunications Ltd, now appellant, filed a preliminary objection dated 20/5/97 challenging the commencement of the suit by originating summons.
The respondent then filed an application which has not been opposed by the appellant the result of which the Federal High Court Abuja duly transferred on 28/10/97 to the High Court. No appearances by the parties were recorded on that day. Consequently, the suit came up on 27/4/98, after three different adjournments. And on 27/4/98, the respondent’s counsel, according to the appellant, moved the court to strike out the preliminary objection filed by the appellant. The court then struck out the objection and adjourned the substantive suit to 11/6/98 for hearing.
The suit was however not heard on 11/6/98 until 21/10/98 in the absence of the appellant and their counsel. The court entered judgment in favour of the respondent herein by its ruling delivered on 4/11/98. That court ordered for the re-instatement of the respondent to his post.
The appellant, upon receipt of certificate of judgment, briefed a new counsel, in the name of Paul Usoro to defend its interest. The appellant unsuccessfully applied to set aside the default judgment and to extend the time within which the appellant may file and serve its counter affidavit on the matter. The trial court, based on the counter- affidavit filed by the respondent, dismissed the appellant’s motion and re-affirmed its earlier judgment. The appeal is against that judgment delivered on 4/11/98.
By the order of this court made on 21/9/99, the appellant’s notice of appeal was filed out of time-it contains ground of appeal as follows:
GROUND OF APPEAL
The Learned Trial Judge erred in law when he ordered that:
“The Plaintiff should be re-instated to his post as Assistant Chief Commercial Superintendent in the Nigerian Telecommunications Limited without loss of salaries, allowance, increments, promotions and other benefits.”
PARTICULARS
- The appellant is a Limited Liability company incorporated under the Companies and Allied Matters Act, 1991 and not a Statutory Corporation or part of the Civil Service of Nigeria.
- Appellant’s employment was governed by conditions of Service.
Consequently, with the rules of this court, parties have exchanged briefs. The appellant relied and adopted their brief of argument filed on 23/2/2000. They formulated two issues for the consideration of the appeal by this court thus:
“1. In the assumption that the dismissal was lawful, (which is denied by the appellant), can the lower court in any case order the re-instatement of the respondent to his employment with the appellant?
- Was the respondent’s dismissal from employment lawful?”
The respondent in turn submitted the only issue for determination is that:
“Can the trial court order the re-instatement of the respondent to his employment with the appellant. Having declared the dismissal null and void?”
Before I delve into the submissions of both counsel, I wish to state that I have scanned through the record of proceedings of the lower court and the relevant documents during the rudimentary stages and discovered that the appellant filed one single ground of appeal. Whether the appellant can distill two issues or more out of it will be discussed anon.
The main grouse of the appellant, as depicted in issue No.1 on page 4 of this brief is that the lower court after finding that the appellant’s appointment was illegally terminated, should not have ordered his re-instatement to his post without loss of salaries, allowances, increments, promotions and other benefits. He submitted that the lower court was in error of the law in making the said order.
Learned counsel’s contention is that the respondent’s employment was based on a simple contract between the parties and had absolutely no statutory or constitutional flavour, which would have constituted the basis for the court’s order.
Learned counsel for the appellant, Mr. Paul Usoro relied on the decision of this court in Nigerian Telecommunications Limited v. Clifford Ikaro (1994) 1 NWLR (Pt 320) 350-at, 361-362 wherein the court broadly classified employment contracts into four categories, viz:
“There are now four classes of employer employee contracts in Nigeria. The first is under the common law where in the absence of a written contract, each party could abrogate the contract on a week’s or month’s notice or, on payment of the wages for a week or month or whatever was the agreed week or month or whatever was the agreed period of payment of wages.
The second class belongs to cases where there is a written contract of employment between a master and a servant. In such a case, the court has a duty to determine the rights of the parties under the contract. Category 3 cover public servants whose employment are provided for in a statute plus conditions of service agreement.
Category 4 are public servants in the Civil Service simpliciter.”
In reaching its decision, Mr. Usoro maintains, the Court of Appeal relied on and quoted the Supreme Court cases of:
Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.
The contention of the appellant’s counsel was that the respondent’s employment has a written contract of employment between a master and a servant. He further contended that the respondent’s employment had absolutely no constitutional or statutory flavour, which could have been the basis for his re-instatement by the court. He refers to Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd. (1993) 4 NWLR (pt. 289) 512/537; Olaniyan & Ors v. University of Lagos (1985) 2 NWLR (pt. 9) 559; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40;Ewarami v. African Continental Bank Ltd (1978) 4 SC 99; and Nigerian National Petroleum Corporation v. Chief Tamuoemi Idoniboye-Obu (1996) 1 NWLR (Pt. 427) 655.
Learned counsel concluded that the appellant was not established by statute and certainly is not a creation of the constitution. Furthermore, both parties agreed that the appellant is a limited liability company governed by the Companies and Allied Matters Act, 1990 hereinafter called CAMA. He referred to the title of the parties on the respondent’s originating processes. Learned counsel again contended that the appellant is not a part of the Civil Service of Nigeria which means that the employment of the respondent cannot have any statutory flavour.
Learned counsel further submitted that assuming without necessarily concluding that the employment of the respondent has such statutory flavour. Order of re-instatement is not automatic in all contracts with statutory flavour. He cited in support Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt.291) 47, where Karibi-Whyte, JSC has this to say at pages 20. 62-63 thus:
“The argument though quite misconceived, now seems to me common with counsel that any officer employed by statutory body enjoys an appointment with a statutory flavour. Nothing is farther from true legal position. The fact that the respondent is a creation of statute does not elevate all its employees to that status or that the status of the master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour.”
After considering the issues and authorities the appellant submitted that since the employment of the respondent is based on simple contract any termination thereof can only be wrongful and never unlawful.
The measure of damages in that event would be the amount provided by the contract of employment in lieu of notice. He relied on Chukwumah’s case supra. He then stated that even if the court found that the termination of the respondent’s appointment was wrongful, the only remedy available to him would have been one month’s salary in lieu of notice. This is because the appointment letter given to the respondent expressly stated, inter alia, that the appointment may, at any time, be terminated on either side by giving not less than one month’s notice after confirmation of appointment or payment in lieu.
On this issue, the respondents response, is based on their single issue reproduced earlier on. He argued that the Judge was perfectly in order when he held that the purported termination of appointment is null and void that being the case, the respondent could be re-instated to his post without loss of salaries, allowances, increments, promotions and other benefits. He further argued that there is no ground of appeal challenging the order declaring the respondent’s termination as null and void. That being the case, the cases cited by the appellant are not on all fours with the present case. In each of those cases, there was an appeal against the trial court decision declaring the termination of appointment either null and void and/or the trial Judge simply declared the termination as illegal but not null and void. Learned counsel then submitted that since the learned trial Judge declared the termination of appointment as ineffectual, null and void, he has no option than to order the re-instatement of the respondent. He cites in support the following cases:
(1) Afribank (Nig.) Plc v. Nwane (1998) 6 NWLR (Pt.553) 283/296.
(2) Shitta-Bey v. F.P.S.C (1981) Vo1. 12 NSCC 19/21.
(3) UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) 376 S.C (1994) 10 SCNJ 71/74.
(4) Ewarami v. A.C.B Ltd. (1978) NSCC pp.269/274.
(5) Federal Poly Mubi v. Yusuf (1978) 1 SCNJ p.11 at 81.
Learned counsel for the respondent, Chief Tunyan then urged this court to dismiss the appeal. Before I proceed further, I wish to dispose of the preliminary objection raised by the respondent’s counsel on behalf of his client on what I consider as proliferation of issues. The respondent’s reason was that two issues were formulated from one ground of appeal. The ideal situation is that one issue should have been distilled from one ground. He then urged this court to strike out issue No.2 for determination as formulated by the appellant, and dismiss the appeal for their failure to file proper brief of argument.
Learned counsel stated that only an issue for determination can be formulated from one ground of appeal. He relied on Chief Kafaru Oje & Ors vs. Chief Ganiyu Babalola and others (1995) 5 SCNJ p.110. He added that any issue for determination that is not derived from the grounds of appeal is no issue and ought to be discountenanced:- Animashaun vs. UCH (1996) 10 NWLR (Pt.476) 65, (1962) 12 SCNJ page 179 at 180; and Kala v. Potiskum (1998) 3 NWLR (pt.540) 1 SC, (1998) 1 SCNJ p.143/149. He then urged this court to strike out issue No.2 and to dismiss the appeal on the ground that two issues were formulated from one ground of appeal.
Learned counsel for the appellant Paul Usoro Esq., on page 3 of his appellant’s brief submitted that the preliminary objection is unfounded and misconceived and should therefore be overruled. He contended that the position of the Supreme Court in the cases referred to by the respondent’s counsel was to the effect that issues for determination must be relevant to the ground of appeal. The reasoning of the Supreme Court in these cases was that, courts will look into and consider issues for determination, even if in excess of ground of appeal, so long as it is distilled from the ground of appeal. For example, in the case of Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) at 128, the appellant therein, formulated ten issues for determination from only four grounds of appeal. The Supreme court, albeit regarded the issues formulated for determination as superflous, nonetheless looked into and meticulously considered all, the issues formulated for determination by the appellant. He then submitted that issue No.2 in this appeal, i.e. whether or not the respondent’s dismissal from employment was lawful, is distilled from and very relevant to appellant’s sole ground of appeal. The order for re-instatement of the respondent made by the learned trial Judge is not only material to but also conjunctive with the lawfulness or otherwise of his dismissal.
Furthermore, learned counsel added, in Animashaun v. University College Hospital (supra) at p.71, the Supreme Court suggested that issues formulated in excess of ground of appeal can only be entertained by the court either with leave of court or if they are relevant to the existing ground. A similar view was expressed in Kala vs. Potiskum (supra) at p.10 para H.
Learned counsel, Mr. Usoro, further contended that although the issues formulated for determination were not canvassed by the appellant at the lower court, the appellant by its motion dated 2nd July, 1999 sought and obtained the leave of this honourable court to “raise fresh issues/points not canvassed at the court below.” He therefore submits that the second issue for determination in the appellant’s brief of argument is validly and competently raised. He then urged us to overrule the preliminary objection.
On whether or not we should dismiss the appeal on the ground that two issues were formulated from one ground of appeal, the appellant’s stand is that we cannot nullify the entire brief or render same as incompetent. The respondent prayer urging this court to dismiss the appeal on that ground is not only erroneous but also has no legal basis and should therefore be overruled. Learned counsel therefore submits that the best and only relief the respondent could have prayed for, is to urge this court to refrain from considering the issue formulated in excess of the ground of appeal rather than dismiss the entire appeal.
Chief Oje v. Babalola (supra); Animashaun v. U.C.H (supra) and Kala v. Potiskum supra.
I have already mentioned that it is a fact that cannot be altered that the appellant filed only one ground and formulate two issues. There is no dispute on that. Whether or not the appellant can lawfully and legally do that is a matter of law. I agree with Chief Tunyan to the extent that issues arising in the appeal must be issues arising out of the grounds of appeal. Any issue formulated not related to any of the grounds of appeal filed is liable to be struck out:- Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; and Kari vs. Ganaram (1997) 2 NWLR (Pt.488) 380 at 394 per Ogundare, JSC.
I also agree that issues for determination as well as argument in the appeal should be based on the grounds of appeal filed. The Supreme Court in the case of Osinupebi v. Saibu (1982) 7 SC 104/110 held that any part of brief or argument which does not arise directly from at least one of the grounds of appeal filed is incompetent and ought to be disregarded. See also Oje vs. Babalola, supra cited by the respondent’s counsel.
In the case of Ogunbiyi v. Ishola (1996) 1 RMLR (Pt.3) 83/90; or (1996) 6 NWLR (Pt.452) 12 SC, Onu JSC at p.90 or p. 19 of NWLR has this to say:-
“Before embarking on the consideration of the issues, I wish first of all to touch on three matters of vital importance and on which this court has harped and admonished that they ought no longer to be repeatedly done. The first has to do with proliferation of issues. In a case such as the one in hand where only two grounds were filed, the formulation of more issues than there are grounds without some strong reason ought to be discouraged. Thus, this court has decided in Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352 and Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 at 214 and several others, that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed and that except in special cases where the grounds of appeal so dictate, it is undesirable to formulate more than an issue in respect of each ground of appeal.”
In the instant case, the appellant has not shown any special reason why two issues were formulated in respect of sole ground of appeal. The only ground of appeal challenged the order of re-instatement made by the lower court, while the issue No.2 formulated by the appellant was in respect of the validity or otherwise of the dismissal of the respondent from the employment of the appellant. I therefore hold that the said issue does not only relate to the ground of appeal, but also no cogent reason was shown for formulating the issue in excess of the sole ground of appeal. As a result, the said issue for determination is hereby struck out together with the arguments and submissions based on it.
The only question now left for our consideration and determination is whether the order of re-instatement made by the trial court was correct? I have earlier produced the arguments of the learned counsel to both parties. However, the pertinent question to ask now is that, is there any evidence before the court disclosing the legal status of the appellant, and the type of relationship between the respondent and the appellant.
This question becomes relevant because in an action of this nature, the onus is on the respondent, herein, to prove which categories of the employment contract he belongs to, that is:-
(a) Is it under the Common Law?
(b) Is it a written contract of employment between a master and servant?
(c) Is it public servants whose employments are provided for in a statute plus conditions of service? or
(d) Public servant in Civil Service simpliciter?
This Court in a similar situation in the case of Salami v. New Nigerians Newspapers Ltd, in suit No. CA/K/125/97 (unreported) at p.8 held as follows, per Mohammed, JCA:
“What is to be determined in this issue is quite simple and is whether the appellants employment was properly terminated in strict compliance with the conditions of service governing the relationship between the appellant and the respondent, Exhibit 8. It is indeed the law that when an employee complains that his employment has been wrongfully terminated, he has the onus first to place before the court the terms of the contract of employment and secondly to prove the way and manner the said terms were breached by the employer. It is not the principle for the employer, who is a defendant to such action brought by an employee, to prove any of these terms of employment. This principle of law has long been laid down by the Supreme Court in many cases including Amodu v. Amodu (1990) 5 NWLR (Pt.150) 556, Iwuchukwu v. Uwizu (1994) 7 NWLR (Pt.357) 379 and Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt.607) 390 at 405.”
In this case, no evidence whatsoever was led by the respondent, as this action was commenced by originating summons. In paragraphs 2 & 3 of the supporting affidavit, the respondent averred as follows:-
(2) That I was employed by the defendant as Higher Commercial Superintendent on 6th October, 1983.
(3) That a copy of the letter of appointment is hereby exhibited and marked “A.”
Exhibit ‘A’ contained some conditions of service, with a proviso that “all other terms and conditions are as contained in our rules and regulation … ” Interestingly, a copy of the said rules and regulations was not attached. There was no where in the affidavit where it was deposed to the effect that the employment of the respondent was guided by any statute plus conditions of service, or that he was a civil servant in the Civil Service of Nigeria. All I could gather from all the exhibits attached to the originating summons is that the appellant is a Public Liability Company, and as a result the court cannot force the respondent on an unwilling employer, the appellant, and I so hold.
Governed by the Companies and Allied Matters Act 1990 (CAMA), it goes without saying also that the appellant is not a department or part of the civil service of Nigeria, the respondent therefore cannot be heard to say that his employment has constitutional flavour. The suit should not have commenced by an originating summons.
It is not clear whether the trial court should have held that the employment of the respondent has been wrongfully or unlawfully terminated. Having considered the fact that the employment of the respondent was not guided by any statute, his termination cannot be declared unlawful, I hold therefore, if anything, the employment of the respondent has been wrongfully terminated.
That being the case, what is the remedy available to the respondent whose employment has been wrongfully terminated. The measure of damages would be the amount provided for in the contract of employment in lieu of notice. The principle could be found in the Supreme Court’s case of Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd. (1993) 4 NWLR (Pt.289) 512/537. It was held by the apex court that “Under the contract of service, plaintiff could be terminated by the defendant by giving him two months’ notice or pay him two months salary in lieu of notice”. Ogundare JSC pp.536-539 of the report.
In the instant appeal, the main problem here is to determine how much the respondent was entitled to as a result of the termination of his employment without notice. In the originating summons filed by the respondent, the counsel to the respondent only listed the questions for determination without claiming any relief. The holdings of the lower court that the:-
“Plaintiff’s appointment was not legally terminated. The purported termination of appointment is null and void. The plaintiff should therefore be re-instated to his post as Assistant Chief Commercial Superintendent in the Nigerian Telecommunications Limited without loss of salaries, allowances, increments, promotions and other benefit were not based on any relief before the lower court.”
My Lords, I should not have hesitated to set aside the order declaring the termination of the respondent’s employment as null and void, but since there was no ground of appeal challenging this order, I do not therefore have powers or jurisdiction to do so. See the case of Vincent Awosile v. Sotunbo (1992) 6 SCNJ 182/197 or (1992) 5 NWLR (Pt.243) 514. The Supreme Court per Wali JSC at p.259 thereof.
“The fact that both counsel argued the issue in their brief would not confer jurisdiction on the appellate court to entertain argument which was not hinged to any ground of appeal. The learned justices of the Court of Appeal therefore lacked jurisdiction to set aside the order as aforesaid it is not solely on issue of making consequential order, thus falling within the discretionary powers of the Court of Appeal Rules 1981. The Court has no power to grant a substantial relief not specifically sought by a party. See Raufu Owe & Ors. VS. Mohammed K. Owe (unreported) and Nigeria Housing Development Society Ltd. vs. Yaya Mumuni (1977) 2 S.C. 57/81.”
It is for these reasons that I did decline to set aside the said order of the lower court.
In addition, I have carefully perused and analysed the affidavit in support, there was no where the respondent’s monthly salary was deposed to. It was only in Exhibit B that the amount of N42.,655.00 was stated as the salary per annum. If that amount is divided by 12 months the monthly salary would be (N42,655,12) N3,554.55k (Three thousand, five hundred and fifty-four naira, fifty-five kobo). In Exhibit A, it was provided in paragraph 3 as follows:-
“NOTICE OF TERMINATION/RESIGNATION OF APPOINTMENT
The appointment may, at any time, be terminated on either side by giving not less than one month’s notice in writing during probation, and also one month’s notice after confirmation of appointment or payment in lieu”.
Pursuant to the above provisions therefore, I hold that the respondent is entitled to one month’s salary in lieu of notice which I had earlier calculated and or computed to be N3,554.55k. I make this order as a consequence flowing from the order holding that the termination of employment was null and void. It was therefore a consequential order. See Order 3 Rule 22 of the Court of Appeal Rules, 1981, as amended.
Before I end this judgment my Lords, I would like to state here without in any way mincing words, that a serious matter such as this matter, which has to do, out of necessity, with unlawful dismissal should not be originated with an originating summons which would require the matter to be proved by affidavit evidence. It should have been initiated by an ordinary writ of summon so that pleadings could be ordered and exchanged and concrete evidence given to establish the status of the appellant, the nature of the relationship between the parties, and neither was the Rules and Regulations, which formed the basis of the contract between the parties, exhibited. This is definitely not the best way to handle a serious case of this magnititude.
Consequently, I hold that this appeal succeeds fortunately or unfortunately. The order for reinstatement ordered by the lower court is hereby set aside, in its stead, the sum of N3,554.55k being the respondent’s one month’s salary in lieu of notice is hereby awarded in favour of the respondent. I do not think it expedient to award any costs to the appellant. That is the justice of this particular case. Parties shall therefore bear their own costs.
Other Citations: (2001)LCN/1046(CA)
