Nigerian Telecommunications Plc (Nitel) & Anor V. Mr. L. D.akwa (2005)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the decision of the Federal High Court Yola (Coram Edet J.) delivered on 4th June, 1998, where the learned trial Judge decided as follows:

“Accordingly, I grant reliefs Nos. 12(a), 12(c) and 12(d). In other words, I declare that the termination of the plaintiff’s employment vide memo dated 28/4/89 is both wrong and unlawful, so null and void and of no effect whatsoever. I order that plaintiff’s salaries and allowances from May 1989 to June 1998 be worked out by the defendant together with any increases and the sum paid to the plaintiff immediately. I both declare and order that the plaintiff’s employment has never been terminated by the defendant and the same is still subsisting. Finally, reinstate the plaintiff into his former rank of Senior Officer II salary B and E level 9 to be deployed as Assistant Manager (LDC). I reject relief No. 12(a) entirely and the same is struck out for want of entitlement.

These shall remain the Judgment and orders of this Honourable Court for the time being.”

Dissatisfied with the above decision, the appellant appealed to this court on ten grounds of appeal which are reproduced below without their particulars:

(1) The learned trial Judge erred in law, in entertaining the plaintiff’s action and the reliefs sought by the plaintiff, when the action was statute barred.

(2) The learned trial Judge erred in law when after stating as follows:

“I, therefore reject exhibit ‘L’ not only because it is not a term of contract inter parties but also because it is further into the distance: 3 years post mortem exhibit ‘B’. Exhibit “L”. is accordingly expunged from the record.”

He proceeded to give judgment for the plaintiff declaring that “the termination of the plaintiff’s employment vide memo dated 28/4/89 is both wrongful and unlawful, so null and void and of no effect whatsoever….”

(3) The learned trial Judge erred in law, when after rejecting the case set up by the plaintiff which was that his appointment was terminated based on some criminal allegations without following laid down procedure as provided in exhibit “L”, proceeded afterwards to hold that;

“……… the unlawfulness of the defendant’s action of termination arises from many other sources, chiefly among which are (1) breach of contractual terms or staff regulations exhibit ‘M’ as mentioned before. (2) substitution of unapproved photocopied memo in place of original letter of termination of appointment and (3) lack of consent of appropriate authority, i.e. Management Board of the defendant.

(4) The learned trial Judge erred in law when he held that:

“………. Failure to pay the one month salary in lieu of notice within the month of April, 1989, coupled with non-payment at all, till the date of judgment which is nine years after, makes the purported termination unlawful for breach of a fundamental term see page 15 paragraph 5:3:4 exhibit M.

The danger of the defendant’s case is that they believe wholeheartedly that an employer has no duty to state the reason for terminating an employer’s appointment in every case and that it is not the business of the court to know the same … defendant in this case has failed to prove that he no longer required the services of the plaintiff as alleged by him in exhibit “B”.

(5) The learned trial Judge came to a wrong conclusion when he said:

“… no real letter of termination of the plaintiff’s appointment because the board of Management never sat in session on the issue. There is however a photocopy of a memo, which is not yet approved by the management board of the defendant and which was secretly dropped in the plaintiff’s house, memo now tendered as exhibit ‘B’.

(6) The learned trial Judge came to a wrong conclusion when after finding that the plaintiff did not prove that his appointment was terminated as a result of any criminal allegation or misconduct, he again relied on page 62 paragraph 14: 10 of exhibit ‘M’ titled right of appeal which dealt with right of appeal against disciplinary action, and held that exhibits C, D-D1, E and J;

“indicate a repression on the plaintiff’s right of appeal and a further breach of a fundamental term of the contract of service as cited above.”

(7) The learned trial Judge erred in law, when he ordered that “the plaintiff’s salaries and allowances from May, 1989, to June, 1998, be worked out by the defendant together with any increase and the same be paid to the plaintiff immediately.”

(8) The learned trial Judge erred in law, when he declared and ordered “that the plaintiff’s employment has never been terminated by the defendant and the same is still subsisting. I reinstate the plaintiff into his former rank of Senior Officer II on salary band E level 9 to be deployed as Assistant Manager (L.D.C.).”

(9) The learned trial Judge erred in law, in failing to strike out the 2nd defendant from the suit when the plaintiff made no case against the 2nd defendant.

(10) The decision can not be supported having regards to the weight of evidence.

The appellants counsel in his brief of argument filed on 13/2/2001, distilled four issues for the determination of the appeal out of the ten grounds of appeal reproduced supra. The four issues for determination are set out hereunder.

They are:

(a) Whether the learned trial Judge was right in law, having regard to the pleading and the evidence on the printed record, to have declared the termination of the plaintiff’s employment wrongful and unlawful (relates to grounds 2, 3, 4, 5 & 6)

(b) Whether the learned trial Judge was right in ordering the reinstatement of the plaintiff to his former position and even to be deployed to a higher rank with all the benefits and privileges appertain thereto (ground No.6)

(c) Was the learned trial Judge right in law to have awarded the plaintiff salaries and allowances from May, 1989 to June, 1998, together with any increases in the circumstances of the case? (relates to ground 5 and 6) (relates to ground Nos. 2, 3, 4 & 7)

(d) Was the second defendant properly joined as a party to the suit and having been so joined, was the court right having regard to the pleading and the evidence, when it gave its judgment without striking out the name of the 2nd defendant? (lifted from ground No.9)

Similarly, the respondent also formulated four issues for determination. The issues read as below:

1. Whether the learned trial Judge was right in law having regard to the pleadings and the evidence on the printed record to declare the termination of the employment wrongful and unlawful.
2. Whether the learned trial Judge was right in ordering the reinstatement of the plaintiff to his former position and even to be deployed to a higher rank with all the benefits and privileges appertaining thereto.
3. Was the learned trial Judge right in law to have awarded the plaintiff’s salary and allowances from 1989 to June, 1998 together with any increase in the circumstance of this case?
4. Was the defendant properly joined as a party to the suit and having been so joined, was the court right having regard to the pleadings and the evidence, when it gave it judgment without striking out the name of the second defendant?

The issues proposed by both parties are very much similar and they simply differ not in form, but in the wordings or the way they were couched.

Before I consider the issues for determination raised in the appellants’ brief which I choose to be guided by in view of their elegance and encompassing nature, I deem it apposite to give a brief summary of the facts of the case which gave rise to this appeal. The first appellant which is or was a Federal Government of Nigeria Institution as 1st defendant at the lower court employed the defendant (respondent herein) vide an appointment letter Ref. No. DP/S.6/1404/PF/Vol. I, dated 20-6-1985. The defendant/respondent while under the services of the 1st defendant/ appellant rose to the rank of Senior Officer grade II before his employer the 1st appellant, terminated his appointment in April, 1989. The termination was according to the plaintiff/respondent, because of the missing of some items in power section in LDC department which he (the defendant/respondent) was heading sometimes in 1989. But the defendant did not give that as reason for its action. Before his appointment was terminated, he was placed on suspension. According to the plaintiff/respondent at the initial stage, his suspension by the employers was to give room for proper investigation by a panel to be set up by 1st appellant to investigate the allegation of loss of the items, but no reasons were explained by any body as to why the panel was not set up. It is however apparent, that at the time of the termination of his appointment, he was only informed that his services were no longer required by the appellants.

Naturally, the plaintiff/respondent became disenchanted with the action of the 1st defendant/appellant, hence, he instituted the action against the appellants at the lower court. In the said suit, he claimed the under mentioned reliefs and the lower court granted all the reliefs but one. The reliefs sought and granted are:

(a) An order that the alleged termination of his appointment with defendants vide a letter dated 28/4/1998 Ref. No. DP/DDP/ER/1971/D3/PF without any reason given is illegal, unconstitutional, null and void and of no effect.

(b) An order that his salaries and other allowances from May, 1989, till October, 1997, which is put at over N1,000,000 be paid to him.

(c) An order that his employment with the defendant is still subsisting and continuing and his salaries and allowances from November, 1997, till judgment is delivered and paid to him.

(d) An order reinstating him in to his former post as Assistant Manager LDC.

(e) The sum of N500,000.00 as special and general damage for unlawful termination of appointment.

(f) Any other reliefs the court deems fit to award.

In determining this appeal, I intend to deal with the issues in the way they were argued in the appellant’s brief of argument. That is to say, I will first of all consider the 1st issue, then consider the 2nd and 3rd issues together and later consider the fourth and last issue for determination if need be.

With regard to the 1st issue i.e. (a) above, the learned Counsel for the appellants submitted that in the instant suit, there was relationship of master and servant created between the 1st appellant and the respondent. He submitted therefore, that where a plaintiff seeks declaration that the termination of his appointment by his employer was a nullity, he must not only plead and prove that he was an employee of the defendant, but should also plead terms and conditions of his appointment and the circumstances that led to the termination of such appointment. He added that the plaintiff did not plead those essential particulars, hence his claims could not be sustained. He cited and relied on the authorities of Amodu v. Amodu & Anor. (1990) 5 NWLR (Pt. 150) 356 at 372; Angel Spinning and Dyeing Ltd. v. Ajah (2000) 13 NWLR (Pt. 685) 532 at 544/545; Nigerian Telecommunications Ltd. v. Emmanuel Oskodin (1999) 8 NWLR (Pt. 616) 528 at 540 – 542. It is also the submission of the appellant’s counsel, that exhibit M relied on by the learned trial Judge in his judgment which was tendered by the respondent was never pleaded by him in his statement of claim.

The learned appellants’ Counsel further submitted that the learned trial Judge made a case for the plaintiff/ respondent which the latter did not make for himself, when in his finding he gave reasons why the respondent’s appointment was terminated, when he himself did not give such reasons. He argued that a court of law can not decide a matter on point of law or on facts not relied upon by a party. He relied on Federal Capital Development Authority v. Alhaji Musa Naibi (1990) 3 NWLR (Pt. 138) 270 at 283. On the finding of the learned trial Judge while relying on exhibit M which he argued was not pleaded, the learned appellants Counsel submitted that the alleged failure by the defendants/appellants to pay the plaintiff/respondent one month salary in lieu of notice rendered his termination unlawful. The learned Counsel for the appellant submitted further that the finding was erroneous because that proposition applied to contract of employment having statutory flavour only as opposed to the instant case which is a contract of ordinary master and servant. He argued that where in a contract of employment there exists a right to terminate the contract given to either party, the validity of the exercise of that right cannot be vitiated by the existence of malice or improper motive. See Ajayi v. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt. 62) 577.

It is also the submission of the learned appellants’ Counsel, that where an employer terminates the appointment of its employee in a manner not in accord with the terms of the contract existing between them, then the employer must pay damages for the breach.

He added that the only exception to this principle/rule is where the employer is under some statutory restrictions as to the procedure to be followed before effecting the termination or dismissal of the employee. See FSCC (1991) 1 SC 40; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652; Cooperative & Commerce Bank (Nig.) Ltd. v. R. O. Nwankwo (1993) 4 NWLR (Pt. 286) 159 at 169 D-E. He said the trial Judge was wrong in holding that the 1st appellant was bound to prove that he no longer required the services of the plaintiff as alleged in exhibit B.

Replying to the submissions of the learned appellants’ Counsel on this issue, the respondent’s counsel submitted in his brief of argument that the trial court was right in granting the reliefs sought by the plaintiff in view of state of pleading and the evidence led at the trial. He said it could be judicially noticed, that Nitel, being a Federal Government parasitical, its contracts of employment could not merely be of master and servant relationship but one that has statutory flavour. He said this piece of fact was pleaded and proved by admission of evidence through exhibit A (i.e. respondent’s letter of appointment). He referred to paragraph 3 of the respondent’s “particulars of claim” at page 4 of the record and the testimony of the respondent on pages 12 & 13 of the record. He further submitted that the respondent need not specifically plead and prove the terms and conditions of his appointment and the circumstances leading to the termination of same. He said it was not necessary to plead law before reliance could be placed on it. See K. A. Onamade & 1 Ors. v. A.C.E. (1997) 1 SCNJ 67 R 13; (1997) 1 NWLR (Pt.480) 123. He also submitted that the trial Judge was right in relying and acting on exhibit M as it was tendered by the defendant/ appellant through the plaintiff/respondent and it is also relevant. He denied that the trial court made a case for the respondent and said rather, that it was the respondent who made his own case.

The learned Counsel for the respondent further submitted that the contract of service in this instant case had statutory flavour and was therefore determinable not by the parties only, but rather by statutory preconditions governing the determination which also must be followed or complied with. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Fakuade v. O.A.U.T.H.C.M.B. (1993) 13 LRCN 908 ratio 20; (1993) 5 NWLR (Pt.29l) 47. He also argued that the trial was right in holding that the appellants were bound in law to prove that they no longer required the services of the respondent as alleged.

In view of the fact that the issues fur determination in this appeal (especially the first issue which I am now dealing with) largely touch on or relate to the pleadings filed and exchanged by the parties at the lower court, I deem it apposite to reproduce in full, the plaintiff’s statement of claim which the plaintiff’s counsel decided to call “particular of claim”. It reads thus:

“Particulars of Claim”

1.The plaintiff resides at Nigeria Army Barrack, Yola, within the jurisdiction of this Honourable Court. The defendant is a Federal Establishment registered in Nigeria with an office here in Yola, also within the jurisdiction of this court.

2. The plaintiff became an employee of the defendant vide a letter of appointment ref. No. DP/S.6/1404/DF/VI/1 dated 20/6/85. This letter of appointment is hereby pleaded in evidence.
3. The plaintiff rose to the rank of Senior Officer II before his appointment was unlawfully terminated on 28/4/89.
4. The plaintiff was the head of power section under LDC Division in Yola, when in April 1989, there was allegation of some missing items in that section.
5. The plaintiff was suspended from duty and an order for investigation was given which investigation never took place till today.

6.The plaintiff avers that within two weeks after suspending him without any investigation been done, a photocopy letter of termination of his appointment was dropped in his house in his absence.

7. The said letter of termination of appointment dated 28/4/89 is hereby pleaded.
8. The plaintiff has written various protest letters to the defendant which same were acknowledged.

The protest letters dated 6/6/89, 19/12/89, 1/2/90, 12/9/90, 13/9/90, 15/1/92, 3/6/93 and 23/8/95, and all the acknowledgement letters from the defendant dated 21/8/89, 22/2/90 and October, 90 are hereby pleaded in evidence.

9. The plaintiff even briefed a firm of solicitors known as Kassim Gaddy Mayo & Co. who write the letters to the defendant which acknowledged same. The solicitors letters dated 21/11/94 and the defendant replies dated 25/11/94 and 28/11/94 are hereby pleaded in evidence.
10. The plaintiff shall also plead in evidence and correspondences between him and the defendant in respect of this case.
11. The plaintiff avers that in one of the defendant letter of 28/11/94, it was stated that he would be informed whether the termination is confirmed or not in due course, but ever since then there has been no other letter to this effect.
12. All other concerted efforts made by the plaintiff to know the reasons for his termination and confirmed whether he was actually terminated have failed.

Whereof the plaintiff claim from the defendant the following reliefs;

(a) An order that the alleged termination of his appointment with the defendant vide a letter dated 28/4/89 ref. No. DP/DDP/ER/1971/D.3/PF without any reason given is illegal, unconstitutional null and void and of no effect whatsoever.

(b) An order that his salaries and other allowances from May, 1989 till October, 1997, which is put at over N1,000,000.00 be paid to him.

(c) An order that his employment with the defendant is still subsisting and continuing and his salaries and allowances from November, 1997, till judgment is delivered and his reinstated be also paid.

(d) An order reinstating him into his former post as assistant manager LDC.

(e) The sum of N500,000.00 as special and general damages for unlawful termination of appointment.

(f) Any other reliefs the court deem fits and just to award.”

For the same reason, the defendants/appellant’s statement of defence is also fully set out below:

“Statement of Defence

Save as to herein admitted the defendant denies each and every allegation contained in the statement of claim as if the same were set out and traversed seriatim.

1. The defendant admits paragraphs 2 and 3 of the statement of claim (hereinafter referred to as ‘the claim’).
2. Paragraph 4 of the claim is admitted to the extent that the plaintiff rose to the rank of Senior Officer II, but his appointment was validly and lawfully terminated, because the company did not require his services any more.
3. The defendant says that the plaintiff was terminated and a salary in lieu of notice was given to him and also he was advised to liase with the account section for the collection of his entitlements, which he failed and refused to neither collect the salary nor the benefits.
4. The defendant further avers that the termination of the plaintiff was not based on any criminal allegation or misconduct but exactly as averred in paragraph 2 above.
5. The Nitel condition of service of 1990 applicable to the plaintiff is hereby pleaded and shall be relied upon at the hearing of this suit.
6. Paragraph 8, 9, 10, 11 & 12(a) – (f) of the claim are denied and the plaintiff is put to the strictest proof thereof.
7. Whereof, the defendant will urge the court to dismiss the plaintiff’s case for being vexatious and frivolous.

From the state of pleadings as reproduced above, especially the ‘particulars of claim’ which represented the ‘statement of claim’ it is clear that the issue of termination of plaintiff/respondents appointment was pleaded. However, there is nowhere the plaintiff/respondent pleaded the “terms of the contract of service” between him and the defendants’ /appellants. This is very necessary so to do as it is the bedrock of his claim before the lower court. It is mainly through the “contract of service” or terms and ‘condition of service’ when pleaded, that it will be shown or established to the trial court, the nature and duration of the contract of service and the method to be adopted by either of the contracting parties when he/it chooses to opt out of same or the time at which notice to determine the contract may be given. All these important issues are nowhere pleaded in the statement of claim and an important source to get them were also not given or pleaded. It is trite law, that when an employee complains of wrongful termination of employment by his employer, he has the onus to prove the wrongful termination of the said employment by;

(a) placing before the court the terms and conditions of the contract of employment; and

(b) proving in what manner the said terms were breached by the employer. (see Angel Spinning & Dyeing Ltd. v. Ajah (2000) 13 NWLR (Pt. 685) 532.

It was also held by the Supreme Court in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 that ‘terms of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination.’ In the instant case such terms and condition of the contract of service were not pleaded by the plaintiff/respondent in his ‘particulars of claim’ and this failure to so plead is fatal to his case. He also did not plead or establish through evidence how the terms and conditions were breached by the defendants/appellants.

My attention has been drawn to the testimony of the plaintiff/respondent where he said during cross examination as follows:

“By exhibit L my employers have no power to terminate my appointment without giving reason.”

He further stated that he did not agree with exhibit B (the letter of termination of his appointment) because no reason for termination was given and also because it was a photocopy and it was written on internal memo sheet which could not be tendered in court (see page 14 of the record).

But when giving his testimony, DW1 the only witness called by the 1st appellant had this to say:

“As by 1989, there was no hand booklet on conditions of service. Before then documents were sent to us in circulars. These circulars were later put together in a booklet form and circulated to the staff. Each staff was given a copy. This is the booklet of 1990 tendered not objected admitted and marked exhibit L, M, exhibit L is the revised condition of employment of 1992.”

In his ruling on the admissibility of these two exhibits, the trial Judge ruled on pages 32 to 35 as follows:

“I therefore reject exhibit L not only because it is further into the distance 3 years post mortem, exhibit B exhibit L is accordingly expunged from the record”.

It is noted by me that earlier in the course of the proceedings, the learned trial Judge said as follows:

“I have studied this case like a book…

For now, I would like to resolve two preliminary issues which are the main beams supporting the case of either side, firstly “which of the two handbooks – exhibit L tendered by the plaintiff or exhibit M tendered by the defendant… Will be used in deciding this case or is it both of them”.

The learned trial Judge in the end opted for and relied on exhibit M and rejected exhibit L. The baffling thing to me is that exhibit M which he opted for and relied on in his findings was not pleaded at all by either of the parties. It is well settled law that facts which are not pleaded go to no issue and as such, evidence led to support such unpleaded facts are also inadmissible.

Now, assuming that exhibit M, i.e. ‘The Nitel condition of service 1990 is admissible, the question is; was the termination of the plaintiff’s/respondent’ appointment by his employers the defendants/appellants wrongful in law bearing in mind the pleadings filed and relied on by the parties and the evidence led at the trial court?

For purpose of completeness, I will reproduce the exhibit A the letter of appointment issued to the respondent when was employed by the defendants/appellant. It reads thus:

“I am pleased to inform you that you have been appointed as Senior Officer II (Power) … in the Long Distance Communications Division of Nitel. The appointment which is subject to approval by the management board takes effect from the 1st of June, 1985. You therefore required reporting immediately to the Deputy General Manager N/E (Bauchi) LDC who will arrange your deployment as appropriate.

The terms and condition of your appointment will be spelt out in the company’s Hand Book which will be issued to you in due course …”

The above letter/exhibit which was dated 20th of June, 1985, was signed by one Alhaji A. R. Garuba, Director of Personnel.

Again, the letter of termination of the plaintiff’s/respondent’s employment dated 28/4/1989 signed by one D. I. Anureikem on behalf of the Director of Personnel reads as follows:

“Termination of appointment

This is to inform you that your services are no longer required by this company. Your appointment is therefore terminated with immediate effect.

The Director of Finance is being advised by a copy of this memo to pay you up to 28th April, 1989, plus your one month salary in lieu of notice, less any indebtedness to the company.

You will be advised of you end of service account in due course.

Ensure that you submit all the company’s property in your possession including your Staff Identity Card to this office and vacate the company’s quarters (if you occupy any), immediately.”

From the wordings of the appointment letter, i.e. exhibit A, it is clear that the appointment of the defendant was made subject to the approval of the 1st appellants’ management. There is no evidence led by the plaintiff/ respondent at the trial to show that the management of the 1st appellant had confirmed his appointment. Therefore, the plaintiff/respondent could still be regarded as a probationary staff.

By the provisions of paragraph 2.19 at page 6 of exhibit M, probationary staff are those “employees who have to serve for specified period of time before their appointment are confirmed subject to satisfactory performance.” Again, under paragraph 5.2 at page 15 of the same exhibit (i.e. M), the company, i.e. 1st appellant can at any time during period of probation for any reason terminate appointment of its employees on probation for any reason if it considers that he is unsuitable for the post on which he was engaged and such could be done by giving such employee one month notice in writing or one month salary in lieu of notice. See paragraphs 5.30 to 5.34(2) at pages 15-16. In the case of Alhaji Baba v. Nigerian Civil Aviation Training Centre Zaria & Anor (1991) 7 SCNJ (Pt. J) 1 at 13, (1991) 5 NWLR (Pt.192) 388, it was held that in the termination of the appointment of an officer on probation, no procedure is provided for, that need be followed once the master/employer is satisfied that there is good case for the termination. Also, in the case of Ihezukwu v. University of Jos & 2 Ors. (1990) 4 NWLR (Pt. 146) 598 or (1990) 7 SC NJ 95 at 105, it was held that the fact that the appellant was given a probationary appointment. … does not mean and it can not be implied, that his appointment can not be lawfully terminated within the probation period on reasonable notice. In that case at page 615 of the NWLR it was stated, inter alia, as follows:

“It appears to me a startling proposition of law that during a probationary period an employer has no right to terminate the appointment of the employee not withstanding the breach of the terms of his appointment or has done anything contrary to the interest of his employer.”

(italics mine).

It has been stated and restated by this and the apex court of the land in multiplicity of decided authorities, that a master or an employer is entitled to suspend/retire/terminate or dismiss his or its servant/employee’s appointment for good or bad reason or even for no reason at all. See Commissioner for Works, Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407 at 425. Even where the termination, relievement or dismissal is found to be wrongful, the employee will be entitled to damages which would be what was due to him in the period of the notice. See Isievwove v. NEPA (2002) 13 NWLR (Pt. 784) 417 at 434, (2002) 7 SCNJ 323 at 335. Any employer of labour (as the 151 appellant herein) has no obligation to retain the services of any unwanted staff or employee and may terminate the appointment of such employee with or even without any reason given.

See Obe v. Nigersol Construction Company Ltd. (1972) 2 UILR (Pt.II) 121; Angel Spinning & Dyeing Ltd. v. Ajah (Supra) Where however the employer gave reason for the termination, such reason must be plausible to justify such termination of the appointment of the employee. See Taiwo v. Kingsway Stores Ltd. (1950) 19 NLR 122; Fakuade v. OAUTH (1993) 6 SCNJ 35, (1993) 5 NWLR (Pt.291) 47.

On the learned respondent’s Counsel’s, submission supporting the trial Court’s finding that the appellants were bound to prove why the services of the plaintiff/respondent were no longer required, I disagree with him on that with greatest respect. In the letter terminating the appointment of the respondent, the 1st appellant simply said his service were no longer required. To my mind, there is no obligation on the 1st appellant to state why his services were no more required. The effect of the judicial decisions, some of which I cited above, which stated that an employer needs not give reason for termination simply means that the master or employer needs not give a catalogue of allegation or accusation(s) of any wrong doing, or offence committed by the employee in terminating his appointment.

In other words, even if the employee was never involved in any wrong doing, misconduct, fraud or any act that smacks of criminality, his employment can still be terminated. In my view, to say that the phrase “your service is no longer required” “amounts to giving reason” for the termination which requires the employer to justify, is stretching the meaning too far.

This is moreso because such phrase cannot be ascribed to the employee or the respondent herein, as it is not a wrong doing or an offence or lapse on his part that warranted or led to the action taken by the appellants. The finding of the lower court in that regard is therefore perverse and erroneous.

Now on the trial court’s finding that failure of the appellants to pay one month’s salary in lieu of notice made the purported termination unlawful for breach of a fundamental terms, I must in the first place observe that the issue of payment or non-payment of one month’s salary was nowhere pleaded by the plaintiff/respondent as would justify the trial court to make finding on it. It could as well not be raised on appeal for the first time without the prior leave sought and obtained from the lower court or from this court. The said leave was at no time sought and obtained from either of the two courts.

It is clear from exhibit B, the termination of appointment letter, that the Director of Finance was advised to pay the plaintiff/respondent “one month salary in lieu of notice less any indebtedness to the company”. I think with this undertaking or directive from the 1st appellant, it would not be correct to say that the appellant breached the “fundamental term” when no evidence was led by the plaintiff/respondent establishing that he went to the Director of finance and such entitlement of his was not paid to him. There is even no evidence that he attempted to or took step to collect the entitlement and was so denied by the director of finance or the first appellant. My simple answer to such submission and finding of the lower court therefore is that they are irrelevant and of no moment for reason I stated above, It is worthy of the note from exhibits C, D, E, F, G, H and J that all along the plaintiff/respondent was busy protesting against his termination to various top officers of the 1st appellant and complaining of his impecuniousness due to the stoppage of payment of his salary from April, 1989. He did not however establish that he requested for and was denied the one month’s salary in lieu of notice. His failure or refusal to collect the said one month’s salary in lieu of notice in my view, cannot invalidate the termination of his appointment by his employer or be regarded as a breach of the terms and condition of the contract on the part of the appellants.

Having said so, I am of the firm view that the termination of the plaintiff’s appointment was lawfully done in the light of the state of pleadings filed at the trial court. The learned trial Judge was therefore wrong in declaring the termination of the plaintiff’s employment as wrongful and unlawful. My answer to the first issue is in the negative and the said issue is resolved against the respondent and in favour of the appellants.

Issues 2 and 3 In these two issues, the learned Counsel for the appellants submitted that the learned trial Judge was wrong in ordering the reinstatement of the respondent. He said the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599, relied on by the trial court in making such order is not applicable to the instant case. This, according to the learned Counsel, is because in Olaniyan case the Supreme Court drew a distinction between a contract based upon or re-enforced by statute or created by statute where a strict compliance with the statutory requirement was necessary for the determination of the contract of service and a simple contract of service relating to ordinary master and servant. He further submitted that in the instant case, the respondent did not plead or lead evidence showing that his contract with the 1st appellant was governed by any statute.

He also did not allege or prove any special circumstance sufficient in law to bring his case outside the established principles of law that in ordinary cases of master and servant, the repudiation or wrongful termination or dismissed puts an end to the contract and only claim of damages will arise.

In further submission, the learned Counsel for the appellants argued that the remedy for breach of contract of personal service save on exceptional circumstances is damages. He added that the respondent could not insist that his contract of service was still subsisting and proceeded to claim salaries and other allowances for period during which he did not work at all. He submitted that it is a general principle of law, that court will not grant specific performance of contracts of service. He cited the cases of Cooperative & Commerce Bank (Nig.) Ltd. v. R. O. Nwankwo (1993) 4 NWLR (Pt. 286) 159 at 174; P. C. Imoloame v. West African Examination Council (WAEC) (1992) 9 NWLR (Pt. 265) 303 at 318 E-H; Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 at 560.

On the monetary relief awarded to the respondent by the trial Court, the appellants’ counsel submitted that even if it is assumed that exhibit L or exhibit M governed the condition of service of the respondent and that the respondent’s employment was wrongfully terminated, the amount of damage, he is entitled to is one month’s salary in lieu of notice as well as other legitimate entitlements which unfortunately he did not particularize in his pleadings or lead evidence to prove. He cited United Trading Company (Nig.) Ltd. v. Nwokoruku (1993) 3 NWLR (Pt. 281) 295 at 310. He finally submitted on this issue, that the learned trial Judge was in error, when he awarded to the respondent/plaintiff salaries and allowances from May, 1989 to June, 1998, a period of over nine years for services he did not render.

Replying, the learned respondent’s Counsel submitted that the trial court was right in ordering the reinstatement of the respondent to his former position and the payment of all his benefits and privileges attached to his former post since it is a contract of service governed by statute where strict compliance with the statutory requirement was necessary for its determination. He also submitted that if an employee is on confirmed and pensionable appointment and not on probation in a statutory body or authority he is entitled to be reinstated to his former office or position if his employment is wrongfully terminated or if he was wrongfully dismissed. The reinstatement according to the learned Counsel, is in addition to damages, e.g. salaries and allowances during the period of his purported dismissal or termination. He cited Baba v. Civil Aviation Training Centre (supra); Essien v. University of Calabar (1990) 3 NWLR (Pt. 140) 605.

On the quantum of damages awarded (i.e. salaries and allowances from May, 1989 to June, 1998) to the respondent by the trial Judge, the learned respondent’s counsel submitted that the trial court rightly made such award because such claims were according to him, pleaded and proved by evidence he led. He further submitted that one month’s salary in lieu of notice was insufficient compensation under contract of service which has statutory flavour such as this one. He relied on FCDA v. Sule (1994) 15 LRCN 226 ratio 40, (1994) 3 NWLR (Pt.332) 257. Again, the respondent’s counsel submitted that having ordered the respondent’s reinstatement, the trial Judge was also correct in ordering payment of his salaries and allowances for the period of the purported termination of his appointment.

This is because, reinstatement also involves entitlement to rights, benefits and privileges for the period of his inaction. He cited Baba v. Civil Aviation Training Centre (supra); Olaniyan v. University of Lagos (supra). I am in entire agreement with the learned appellants’ Counsel’s submission that in Olaniyan’s case, which the trial court heavily relied in granting the reliefs sought by the respondent herein, the Supreme Court drew distinction between a contract of service based upon or reinforced by statute or which is created by statute where strict compliance with provisions or statutory requirement is necessary on one hand and a contract of service relating to ordinary master and servant on the other hand. Even at the risk of being repetitive, I will say that in the instant case the respondent nowhere, pleaded or alleged that the contract of service he entered into with the 1st defendant/appellant was governed by any named or specified statute.

The respondent also as rightly submitted by the appellant’s counsel, did not allege in his pleading or prove any special circumstances to bring his case outside the established principle of law which is that in ordinary case of master and servant, the repudiation or wrongful termination of his employment would determine on his contract of employment and a claim of damages will arise. It was also not pleaded and proved by the respondent as he alleged that his appointment was confirmed or that it was a permanent and pensionable one. In the absence of such pleas or proof, it would be correct to say that the contract of employment between plaintiff/respondent and the 1st defendant/appellant was an ordinary master and servant contract. By and large in such type of contract of employment, an employer or master can terminate the contract with his servant at any time and for any reason or for no reason at all, but if it/he does so in a manner not warranted by such particular contract, he must pay damages. See Olaniyan v. University of Lagos (supra). In ordinary contract of service of master and servant, the remedy for breach of such contract is simply payment of damages. Except in special circumstances, a court of law in such type of contract, could not normally order reinstatement for to do so will amount to granting specific performance which is not allowed. See Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40; Ewerami v. African Continental Bank Ltd. (1978) 4 SC 99.

Let me quickly state, that as I have held earlier when treating the first issue for determination, the termination of the respondent’s appointment by the appellants was not wrongful or unlawful. I am satisfied that the findings of learned trial Judge in that regard were erroneous and perverse. It is now settled, that a master can dismiss, retire or terminate the appointment of his/its employee even summarily see Arinze v. First bank of Nigeria Ltd. (2004) 12 NWLR (Pt. 888) 663 at 673 to 679 or (2004) 5 SCNJ 183 at 188; Sunclair v. Neighbour (1967) 2 WLR. I wish to add that the remedy of reinstatement may always be withheld by courts even where they are satisfied that the rules of natural justice have been breached, if the courts think that the person complaining does not deserve to win see Glynn v. Keele University (1971) 1 WLR 487; Ridge v. Baldwin (1964) AC 40. Also, assuming that the termination of the respondent’s appointment was wrongful (though I do not so hold), he cannot even be reinstated but he could only be entitled to damages. See NNPC v. Chief Idoniboye Obu (1996) 1 NWLR (Pt. 427) 655 at 676. On the authorities in plethora of decided cases, the most that can or could be done is to award damages in terms of his agreed salary up to the time of the date of the of the said termination. See also Fair Holm v. First and Brown (1913) 49 TLR 470; Beckham v. Drake (1849) 2 NLR Cas 579 Hartley v. Harman (1840) AD & EL 798; WNDC v. Abimbola (1966) NMLR 381; Nigeria Produce Marketing Board v. Adewunmi (1972) 11 SC 111 at 117; Ibama v. Shell Petroleum Dev. Co. (Nig.) (1998) 3 NWLR (Pt. 542) 493 at 499. See also Ihezukwu v. University of Jos (supra); where it was held that an unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. Now even if it is taken that the 2 Handbooks of 1990 and 1992 (i.e. exhibits L & M) (which I said were not pleaded), are relevant and that they-actually represent the condition of service of the contract entered by the two parties in this case, it has been clearly stated in exhibit M (which the learned trial Judge heavily relied on in finding for the respondent) that the respondent as a probationary staff was only entitled to one month s salary in lieu of notice as indicated in his letter for termination of his appointment. That, in my view, is the amount of damages in contemplation of the parties in the contract as remedy of breach of such conditions. The learned trial Judge by awarding damages for over nine years in favour of the respondent is wrong, as that is not what exhibit M contemplated or provided. It is my conclusion therefore that the termination of respondent’s appointment by the appellants was in order and lawful. His is entitlements going by the provision of exhibit M relied on by the lower court, is therefore, only the one month’s salary in lieu of notice which he was advised to collect vide in his termination letter. He is hence not entitled to anything more than that. The award of damages made by the trial court in excess of that, was made without jurisdiction and therefore, wrongful. It has to be set aside and I accordingly do so since such award made is not contemplated by exhibit M and was therefore null and void. The issue of non-collection of the one month salary by the respondent raised by his counsel, is to me of no moment since the 1st appellant being fully aware of such entitlements had advised him in their letter on termination to liase with its Accounts Department to collect same. The respondent did not plead and lead evidence to prove that he took steps to collect same but was denied. The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra). In the light of all that I have posited (supra), it is my conclusion, that the learned trial Judge was wrong in ordering the reinstatement of the plaintiff/respondent to his former position. The trial court was also wrong to have awarded to him (the plaintiff) salaries and allowances from May, 1989 to June, 1998 together with increases. All that the respondent was entitled to in the circumstance, is the one month salary in lieu of notice period. The two issues are hereby answered in the negative and are also rendered against the respondent and in favour of the appellants.

Issue D

In this issue, the appellant poses questions “whether the 2nd defendant/appellant was properly or rightly joined as a party to the suit and also whether the lower court was right in not striking out his name in its judgment. It is clear from the record of the trial Court (page 5) that on 19/1/1998, the plaintiff/respondent closed his case while the 1st defendant/appellant closed its case on 9/2/1998. The trial Court thereupon adjourned for addresses by learned Counsel for the parties. The plaintiff/respondent then applied by way of motion on notice to join the 2nd defendant/ appellant, i.e. “The Zonal General Manager, (North Eastern Zone Nitel Headquarters Bauchi” as a necessary party in the suit as 2nd defendant. The motion was heard on 30/3/98. The trial court after taking the plaintiff’s counsel’s arguments in the absence of defendant/respondents counsel granted the relief sought and made the 2nd defendant now 2nd appellant a party to the suit in a considered ruling delivered on the same 30/3/98.

Without going to the merit or otherwise of this issue, I wish to observe that the order for joinder made by the trial court was an interlocutory one.

Section 220(1) of 1979 Constitution provided thus:

“An appeal shall lie from the decision of a High Court to the Federal Court of Appeal as of right in the following cases:

(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.

(b)

(c) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;

(d) Not relevant

(e) Not relevant

(f) Not relevant

And section 221(1) of the same constitution reads as follows:

“Subject to the provisions of sections 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Federal Court of Appeal with the leave of that High Court or the Federal Court of Appeal.”

Also, by the provisions of section 252(a) of Court of Appeal Act of 1981 (as amended) appeal in civil cause or matter to the Court of Appeal from the High Court in interlocutory decision of the latter court should be lodge within fourteen days. As I said earlier, the trial Court delivered its ruling on 30/3/1998. There is no indication from the record of the lower court that the appellant as defendant there at, had appealed to this court within the fourteen days specified by law. I am mindful of the fact that this proposition applies only to the situation where the ground of appeal is purely that of law. See Adelona v. Edet (2001) 3 NWLR (Pt. 699) 186. See also the recent case of Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1 at 18.

The next issue is, “Is the grounds of appeal i.e. ground No.9 in the notice of appeal from which this fourth issue for determination flows purely one of law? I think not. Let us look at the said ground contained in the notice of appeal filed at the lower court on 3rd of August, 1998, which reads thus:

Ground No.9

The learned trial Judge erred in law, in failing to strike out the 2nd defendant from the suit when the plaintiff made no case against the 2nd defendant.

Particulars

(a) The 2nd appellant is not proved to be a legal entity which could be sued by the plaintiff.

(b) The plaintiff did not allege and did not prove anything against the 2nd defendant.

There is no dispute that the ground is against an interlocutory order, since the order granted had not finally disposed of the rights of the parties. See Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35) 273; Universal Trust Bank Plc. & Ors. v. Odofin (2001) 8 NWLR (Pt. 715) 296 at 301.

On the ground of appeal (No.9) set out above, although titled as a “ground of error in law”.

“I do not think it is a pure ground of law. A ground even though couched as one of law may not necessarily be so. From the particulars of the ground at best, it could be that of mixed law and fact on which leave has to be sought and obtained in order to make it competent and such leave must be obtained from the trial court or from this court in accordance with the provisions section 242(1) of the Constitution; since the said ground relates to an interlocutory order of the lower court. See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622.

There is no evidence to indicate that leave of this or the trial court was sought and obtained so as to make the said ground of appeal competent. Having failed to obtain leave to appeal, against such interlocutory order that ground therefore becomes incompetent. The fourth issue herein is equally incompetent since it is lifted from an incompetent ground of appeal. As a corollary, I hereby strike out the ground of appeal, including the said issue and all the arguments proffered in its support.

Consequently, the appeal is adjudged meritorious. It succeeds and is accordingly allowed by me. The judgment of the trial Court and all the orders made in favour of the respondent herein are hereby set aside. There is no order made by me on costs. So each party should bear his or its own costs.

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Other Citations: (2005)LCN/1810(CA)