P.C. Imoloame V. West African Examinations Council (1992)
LawGlobal-Hub Lead Judgment Report
A. G. KARIBI-WHYTE, J.S.C
The main argument in this appeal was based on the contention that the Appellant as Acting Principal Assistant Registrar and the Branch Controller of the Respondent Council is an officer with statutory flavour; accordingly his dismissal without compliance with the relevant enabling statutory provisions was ineffectual; and therefore void. Appellant therefore asked for reinstatement or in the alternative damages for breach for wrongful dismissal in an action against the Respondent.
Respondent Council had dismissed the appellant from the employment relying on the adverse findings on his conduct in his employment made in three Commissions of Inquiry set up to inquire into the conduct and activities of members of staff of the Respondent. Appellant then caused to issue a writ of summons against the respondent, claiming as follows –
“(1) Libel contained in the Defendant’s letter dated 9th August, 1978, in which the Defendant falsely and maliciously typed and published of and concerning the plaintiff the words following that is to say:’
The charge against you was that as the Officer in charge of the Enugu Office of the Council in Nigeria, you adopted fraudulent means in hiring taxis and other vehicles for conveying question papers sometime before the leakage.’
(2) Wrongful dismissal of the plaintiff from the employment of the Defendant.”
The action was tried on pleadings. Parties filed and served their pleadings. Oral and documentary evidence was led at the trial. It is important to refer to paragraphs 1, 2, 11 and 14 of the plaintiff’s amended statement of claim, admitted by the defendant. They are as follows-
“1.’ The Plaintiff was at all times relevant to this action an employee of the Defendants and as at the time of the purported dismissal of the plaintiff he held the position of an acting Principal Assistant Registrar.
- At all material times relevant to this action the defendants were and still are responsible for the conduct and marking of examinations papers, engaged the plaintiff on the 1st April, 1961.
- The Plaintiff contend that it is against the principles of Natural Justice to allow the said Mr. M.O. Ekperokun to participate on any of panels set up by the Defendants for the purpose of investigating the same issue and also to give evidence against the plaintiff on the issues on Examination Leakages Tribunal set up by the Federal Military Government of Nigeria.
- The Plaintiff shall contend at the trial of this action that to allow the same man Mr. M.O. Ekperokun to sit as a Judge at the International Administrative and Finance Committee of Justice, oppressive, vindictive and against the Principle of Natural Justice.”
These averments are admissions that appellant is an employee of the respondent and that in 1974 and 1975 he was the Branch Controller of the respondent in Enugu.
Paragraph 15 is an admission of the publication claimed to be defamatory. Paragraph 11 is an admission that respondent purported to have dismissed appellant from his employment. All the other averments were denied. Respondents still contend that there were irregularities in the hiring of vehicles, and joined issues with the appellant in respect of the averments in paragraphs 4-19 of the Statement of Claim.
The learned Chief Judge considered the evidence before him and in his judgment, held that appellant having failed to lead evidence on the question of defamation on which issue was joined, that claim failed and was accordingly dismissed. He then considered the issue of wrongful dismissal of the appellant from the employment of the respondent. The learned Chief Judge referred to the admission by defendants of paragraphs 1 and 3 of the amended statement of claim and to Exhibit M, the condition of service of the respondent binding on the parties. He then referred to paragraph 9.10 of “Exhibit M” relating to the dismissal of employees in “Exhibit M”, and held that the evidence before him did not disclose that defendant complied with the provision, particularly (a) -(d), he then held.
“The defendant merely proceeded to implement the accepted recommendation of the Examination Leakages Tribunal communicated to it by the Federal Government as if it was a command. There to my mind was where the defendant went off the rail and committed itself in breach of contract of service with the plaintiff.”
In considering whether appellant was entitled to the declaration sought, the learned Chief Judge held that he was. He cited for his authority, Bankole v. NBC (1968) 1 All NLR 372. He then went on to consider Adedeji v. Police Service Commission (1968) NMLR. 103 and held that the facts of the case were identical where the court declared the letter dismissing the applicant as inoperative, void and of no effect. He distinguished Dr. Sofekun v. Civil Service Commission (1980) 5-7 S.C. 1.
The learned Chief Judge then claimed to be exercising, his discretion to grant the declaration for wrongful dismissal, and said;
“This court therefore declares that the plaintiff’s dismissal by the defendant as contained in Exhibit J is illegal, null and void and of no legal effect. By this declaration, the plaintiff is deemed to be still in the service of the defendant and the defendant is hereby ordered to take necessary steps to regularise the position of the plaintiff within a month from the date of this judgment.”
It is clear from the reliefs sought that the learned Judge granted a relief not sought by the plaintiff. Plaintiff did not seek reinstatement. The declaration sought was not that the had not been validly dismissed. His claim was that the dismissal was wrongful – See Ochonma v. Unosi (1969) NMLR 325.
The Defendants appealed to the Court of Appeal, they also applied for and were granted stay of execution of the judgment. The Issues for determination formulated adequately cover the grounds of appeal filed. It is therefore unnecessary to refer to the grounds of appeal. Four questions for determination were formulated and argued. These were:
“i. Whether the contract of employment of the Respondent was invested with a statutory flavour or attended by special circumstances to place it beyond that of mere master and servant.
ii. Whether the learned trial Judge considered the totality of the evidence placed before him.
iii. Whether on the evidence the learned trial Judge was entitled to hold that damages would not be adequate compensation when neither counsel had been invited to address him on the issue.
iv. Whether the plaintiff established that any provisions of the conditions of service of the Defendant Council was not complied with in determining his appointment.”
On Issue iv, the Court of Appeal held that this is the crux of the appeal before them, and that the determination of that issue will determine whether or not respondent was wrongfully dismissed. The Court held that the onus was on the defendant to prove that the necessary preconditions for dismissing the plaintiff from employment were complied with, plaintiff having tendered the conditions of service. The court then went on to hold that plaintiff was on the evidence wrongfully dismissed. In arriving at this conclusion the court referred to “Exhibit M” the Regulations governing service in the defendant Council and the conditions for dismissal therein. The judgment also referred to the fact that defendant in dismissing the plaintiff merely relied on and carried out the recommendations of the Government’s White Paper on the Shogbetan Report where respondent had been found guilty of misconduct akin to fraud and fraudulent practices. It was held that “They (i.e. Defendant Council) omitted to take the necessary steps itemised under “Ex. M. above”
The Court of Appeal considered the nature of plaintiff’s employment and the correctness of the findings of the learned Chief Judge that plaintiff was still in the employment of the Defendant Council.
It is pertinent to observe that the learned trial Chief Judge having held that plaintiff was wrongfully dismissed the learned Chief Judge was precluded from holding that plaintiff was still in the employment of the defendant Council having not been dismissed.
It is a different consideration if the court had held that the dismissal was invalid and ineffectual. Where there has been a finding of dismissal, the fact that it is wrongful did not make any difference. There has been a dismissal rendering the defendant liable to damages. The Court of Appeal correctly held that the learned Chief Judge was wrong to so hold.
The learned Chief Judge came to his conclusion because he held that the employment of plaintiff was attended with statutory flavour, thereby taking it out of the category of the ordinary Master and sergant cases and placing it within the Adedeji v. Police Service Commission (1968) NMLR 103 cases. The Court of Appeal in reversing the learned Chief Judge held that “The relationship of the respondent to the appellant is a relationship of master and servant based on written conditions of service Exh. M”
The court below relied on Olaniyan & Ors. v. University of Lagos & Ors, (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, and the averments in his amended statement of claim, and the nature of his appointment to hold that “the Respondent’s relationship with the Appellant is not one with a “statutory flavour” that invested him with tenure and “legal status.” It was therefore held that the trial Judge was wrong to equate the instant case with the case of Adedeji v. Police Service Commission (supra). The contention of learned counsel to the plaintiff that the defendant Council being a statutory body, and that the appointment has a statutory flavour was rightly rejected.
On the above reasoning the Court of Appeal held, and rightly in my view, that the plaintiff cannot be reinstated. The Court of Appeal then considered the question of damages. Relying on Nigerian Development Corporation v. Jimoy Abimbola (1966) NMLR 381, International Drilling Co. Ltd. v. Ajijola (1976) 1 NMLR 52 the court stated the rules governing determination of the measure of damages to such cases as this. It was held that the plaintiff was only entitled to three month’s salary in lieu of notice as provided in “Exhibit M” and awarded N2,409 being his salary for three months for his wrongful dismissal.
Plaintiff, dissatisfied has appealed to this court. The main ground of appeal is on the nature of the employment of the plaintiff being one of a statutory flavour. The ground of damages is in the alternative. The grounds of appeal excluding the particulars are as follows-
“3. The Court of Appeal erred in Law when it held as follows – (per B.A. Babalakin, J.C.A. with the concurrence of the two other learned Justices):
‘Applying the ratio decidendi of these two cases to the present case I hold that the Respondent’s relationship with the Appellant is not with a statutory flavour’ that invested him with tenure and “Legal Status”.
It is also wrong of the learned trial Chief Judge to equate the respondent’s case with the case of Adedeji v. Police Service Commission (1968) NMLR 102 which case, in fact, falls to the category of public servant with “Statutory Flavour.”
……………………………………
I therefore hold that the relationship of Master and Servant based on a written contract – conditions of service Exh. M. It therefore follows that the respondent cannot be reinstated as the learned trial Chief Judge purported to do in his judgment.”
ALTERNATIVELY
The Court of Appeal erred in law when it held as follows-
“In the circumstances of this case, I hold that the respondent is only entitled to three months salary in lieu of notice as provided for in Exh. M and he is hereby awarded the sum of N2,499.00 being his salary for three months for his wrongful dismissal.”
Learned Counsel filed and served their briefs of argument. Both learned counsel adopted their briefs of argument, and relied on them in their arguments before us. Learned Counsel to the appellant formulated three issues for determination which are as follows-
“1. Whether the learned Justices of the Court of Appeal were right in holding that the relationship between the .appellant and the respondent was that of ordinary simple common law relationship of master and servant based wholly and solely on a written contract and is not one with a statutory flavour.
- If the answer to the above is positive, whether the Justices of the Court of Appeal were right in reversing the order of learned trial Judge reinstating the appellant.
- Assuming without conceding that the learned Justices of the Court of Appeal were right in reversing the order of reinstatement made by the learned trial Judge, whether they were right in awarding the appellant the sum of N2,449.00 being his salary for three months for his wrongful dismissal when there is evidence on record that the appellant occupied an established post with the respondent.”
Mr. Sowemimo for the respondent, whilst not disputing the formulation of the issues, submitted that the main issue for determination in this appeal is whether the appellant’s post was one which was invested with any special legal status beyond that of a mere servant and one which is statutorily protected. The determination of this appeal even in the court below, as I have pointed out, should not have involved the issue now being canvassed with unusual zeal and acrimony. The case of the plaintiff was not that his employment with the defendant council was protected by any statutory provisions. Again, the learned Chief Judge having held that the plaintiff was wrongfully dismissed, and was entitled to damages, the issue that his employment was statutority protected, and therefore should be reinstated is clearly contradictory. It is also a contradiction to reinstate an employee who was not validly removed because of the breach of the statutory provisions protecting his tenure. Yet the appeal has been fought on all these issues as if these contentious were raised by the parties.
Learned Counsel to the appellant in his submission referred to the reasoning of the court below rejecting the contention that the employment of the plaintiff had a statutory flavour. Counsel referred to the averments in paragraphs 1-3 of the amended statement of claim, which were admitted. He argued that the defendant council is a creation of statute, and the conditions of service “Exh. M” was made pursuant to section 4(3) of the West African Examination Council Act. 1973. It therefore possesses a statutory flavour; and therefore invests the plaintiff with a legal status, making the relationship more than one of ordinary master and servant. “It is” he submitted, “a relationship of master and servant with statutory flavour.” It was also submitted that plaintiff is entitled to pension and gratuity on attaining the age of 60 years.
Learned counsel contended relying on Ss.1 (1), 3(1) 6(2) of the West African Examinations Council Act, 1973 that employees of the defendant Council are public officers within the meaning of section 277 of the Constitution. This argument is founded on the fact that plaintiff held a permanent and pensionable post in the employment of the defendant Council, and therefore is deemed to be an officer in the Public Service of the Federation within the meaning of section 6(2) of the West African Examination Councils Act, 1973.
It was submitted that the relationship between the plaintiff and defendant is governed by statute, accordingly the employment had statutory flavour, therefore the decisions of this court in Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599 applied.
In his reply to the above submissions, Mr. Sowemimo for the respondents submitted that plaintiff did not in his pleadings or evidence at the trial show that his appointment was protected by statute. Learned Counsel submitted that the provisions of sections 4(3) 5(4), 6(2) of the West African Examination Council Act claimed to invest plaintiffs employment with statutory flavour cannot be so construed.
I agree with the submission that section 4(3) of the Act is a provision enabling the defendant Council to determine the remuneration, tenure of office and conditions of service of the Registrar and servants of the Council. Section 5(2) prescribes the preconditions of the procedure for dismissing employees of the defendant Council. Section 6(1) also enables the declaration of pensionable offices of the defendant Council. None of these provisions of the law support the contention of plaintiff’s case.
Learned Counsel submitted that plaintiff has not brought his case within the principles governing the grant of a Declaration in employment matters. Relying on Francis v. Municipal Council of Kuala Lumpur (1962) 3 All ER 633, Vine v, National Dock Labour Board (1956) 1 All ER 1, Vidyodaya University v. Silva (1964) 3 All E.R 865 it was submitted that a declaration in employment matters will only be granted where the office in question is statutory protected or where special circumstances exist to warrant the court to depart from the time honoured principle of declining to grant specific performance of a contract of service. It was submitted that Olaniyan and Shitta-Bey cases are distinguishable. The evidence before the court is that of the relationship of ordinary master and servant.
Considerable emphasis has been placed on the determination of the question whether the employment of the plaintiff is one with a statutory flavour and therefore protected by statute. This issue ought not to have been paid this attention. As I have already pointed out, and I agree entirely with the submission of Mr. Sowemimo, it is not the case of the plaintiff at the trial court. It was a point of law erroneously introduced suo motu, and relied upon by the learned trial Judge in his judgment. Parties were not given the opportunity to address him on the issue.
But then, the pregnant issue is when does an employment have a statutory flavour The decisions of this court relied upon for the proposition and for the application of the principle are Adedeji v. Police Service Commission (1968) NMLR 102, Shitta-Bey v. Public Service Commission (1981) 1 S.C. 40. Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 599.
The common golden thread linking the principle applied in these cases is that the appointment purported to have been terminated has been protected by statute.
In Olaniyan case the appointment and termination of the status and office of Professor which appellants held was protected by sections 7, 13, 14, 15(b) of the University of Lagos Act.
The Shitta-Bey case similarly earlier decided, relied on the non-compliance with the provisions of the Public Service Rules of the Federal Public Service made under and pursuant to the provisions of section 160(1) of the Constitution 1963. Thus the civil service Rules have constitutional force, and as stated by this court, “they invest the Public servant over whom they prevail, a legal status; a Status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship.”
Learned Counsel to the plaintiffs has argued that the provisions of “Exh.M” the conditions of service of the defendant Council made under and by virtue of section 4(3) of the West African Examination Council Act 1973 enjoys the same status,
I do not think the contention is right. The protection enjoyed by the Professors in Olaniyan’s case is derived from their appointment and the status created by the appointment which is governed by the provisions of the University of Lagos Act. In the Olaniyan case the provision for termination of appointment is as prescribed in section 17 of the University of Lagos Act of 1967. The University purported to have terminated the appointment of the professors by the giving of six months notice – a condition not provided by section 17. The exercise of this right which is nowhere in the contract and regulations was declared ineffective, ultra vires and invalid.
The instant case is clearly different. Apart from the fact that the appointment of plaintiff was not governed by any statutory provision, and accordingly does not enjoy and statutory protection, the defendant council exercised power to dismiss in Exhibit M. It is not correct to argue that because Exhibit M was made pursuant to section 4(3) of the West African Examination Councils Act 1973, the tenure of all appointments which enjoy the conditions of service are protected by statute. This is clearly not the intention of the Act.
Section 4(3) enables Council to determine the remuneration, tenure of office and conditions of service of the Registrar and other officers and servants of the council. It appears obvious from the Act that there is no special statutory protection of the tenure of any staff of the defendant Council. Section 6 of the Act relied upon by learned Counsel to the plaintiff only make applicable the Pensions Act. The question of discipline is left to the Council by section 5.
It is also not correct to contend that because the defendant Council was directly involved in the dismissal of the plaintiff in accordance with section 4(4) of the Act, and the plaintiff was a pensionable member of staff, his appointment enjoys statutory protection or is one with statutory flavour. As I have already stated in this judgment there is an employment with statutory flavour when the appointment and termination is governed by statutory provisions as was the case in Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599,Shitta-Bey v. Federal Civil Service Commission (supra). In Ridge v. Baldwin (1963) 2 All E.R. 66, 71 the situation was adverted to when it was said, an employment with a statutory flavour arises” …..
where the body employing the man is under some statutory or other restriction as to the kind of contract which it make with its servants on the grounds on which it can dismiss them ..” It is now accepted that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour – This was why the plaintiffs in Olaniyan v. University of Lagos (supra); Shitta-Bey v. Federal Civil Service Commission (supra) were accorded a status higher than that of the ordinary servant.
The facts of the instant case do not justify that the status be accorded to the plaintiff. The court below was right to hold as it did that plaintiff’s appointment with the defendant Council does not enjoy statutory flavour.
I now turn to the second issue which is whether the Court of Appeal was right in reversing the decision of the learned Judge reinstating the plaintiff. I have observed earlier in this judgment that the learned trial Judge held the dismissal of the plaintiff to be wrongful. After referring to 9.10 or “Exhibit M” for the preconditions of dismissal of an employee he said,
“There is no evidence that any of the steps precedent to dismissal of an officer as stipulated above particularly in (a)-(d) was complied with. The defendant merely proceeded to implement the accepted recommendation of the Federal Government as if it was a command.
There to my mind was where the defendant went off the rail and committed itself in breach of the contract of service with the plaintiff”
The learned Judge could only be referring to an effectual exercise of the power to terminate plaintiff’s appointment. Hence reinstatement. Learned Counsel to the plaintiff has relied on the holding of learned Judge for reinstatement when he said.
“Having given due consideration to all the facts and circumstances of this case, I have come to the conclusion that it is just and equitable to exercise the court’s discretion to grant the declaration sought.”
What was the Declaration sought
The second claim in the Writ of Summons is for
“(2) Wrongful dismissal of the Plaintiff from the employment of the Defendant.”
Again paragraph 19 of the Amended statement of claim provides,”
“(19) The Plaintiff shall contend at the trial of this, action that the purported dismissal is wrongful, oppressive, Vindictive, null and void and of no effect in law.”
Yet the learned Judge went on to hold that,
“This court therefore declares that the plaintiff’s dismissal by the defendant as contained in Exhibit J is illegal, null and void andnof no legal effect. By this declaration the plaintiff is deemed to be still in the service of the defendant and the defendant is hereby ordered to take necessary steps to regularise the position of the plaintiff within a month from the date of this judgment.”
Learned Counsel has argued that the effect of this declaration is that the plaintiff was never validly dismissed and therefore remained still a public servant. This contention is based on Shitta-Bey v. FPSC (1981) 1 SC 40 and Olaniyan v. University of Lagos (Supra), Garba v. FCSC (1988) 1 NWLR (Pt.71) 599.
The above argument is predicated on the contention that plaintiff’s appointment had a statutory flavour. Since this has been rightly rejected by the court below, and the court below having held that the appointment of the plaintiff is one of ordinary master and servant. Accordingly the ordinary principles of law apply.
The traditional common law rule which is applicable in this country is that the courts will not grant specific performance in respect of breach of contract of service. In Rigby v. Connon (1884) 14 Ch.D. 482, Jessel M.R. said;
“The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreement of hiring and service, being the common relation of master and servant, or whether they are agreement for the purpose, of pleasure, or for the purpose of scientific pursuits, or for the purpose of charity or philanthropy. ”
In Vince v. National Dock Labour Board (1956) 1 All E.R. I Viscount Kilmuir expressed the common law view that in the ordinary case of master and servant,
“….if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract.”
The principle is that where there has been a purported termination of a contract of service a declaration to that effect that the contract of service still subsists will rarely be made – See Bankole v. NBC (1968) 2 All NLR 371, Francis v. Municipal Council of Kuala Lumpur (1962) 3 All E.R.633. As a general rule; reinstatement is not ordinarily the remedy for breach of contract of service.
Specific performance or reinstatement is generally not the remedy in respect of personal service. However, in “special circumstances,” specific performance may be granted in contracts of service. These circumstances depend upon the particular facts of each case.
Plaintiff in the instant case has a contract of service with the defendant Council and therefore comes within the latter category. It is therefore pertinent to consider the issue of his reinstatement in the light of the circumstances surrounding his dismissal. The grounds on which plaintiff was dismissed were founded on allegations of dishonesty. It would seem that the confidence necessary between plaintiff and defendant destroyed. In the circumstances, it will not be a judicial exercise of discretion to order reinstatement. – See Sanders v. Ernest Neale (1974) 3 All E.R. 327. The Court of Appeal considered the above factors and was therefore right to refuse to reinstate the plaintiff.
I now turn to the claim for damages for breach of the contract. There is concurrent finding of fact that respondent is responsible for breach of contract. Learned Counsel to the appellant has submitted that the award of N2,499, representing three months salary for wrongful dismissal was wrong. It was submitted that appellant occupied an established post and was entitled to continue in service till the age of 60 years. He cited WNDC v. Abimbola (1966) 1 All NLR.159 and Oronsanye v. ECN (1969) NCLR, 93, Olatunbosun v., NISER (1988) 3 NWLR (Pt.80) 25 as authority. It was submitted that the provision in Exh.M did not apply to appellant who occupied an established and permanent position. The provision it was submitted applied only to officers on “contract’ with the respondent.
In his reply, Mr. Sowemimo, learned Counsel to respondent submitted that there was no evidence on record that appellant occupied an established post and no evidence that he was entitled to retire at the age of 60 years and to the payment of gratuity. Learned Counsel submitted that issue was joined on the claim of N500,000 as damages. The amended statement of defence contains a general traverse. The claim for loss of earnings for 16 years and gratuity payable are items of special damages which ought to have been strictly proved.
It is well settled that in cases of wrongful dismissal “the measure of damages is prima facie the amount the plaintiff would have earned had the employment continued according to contract subject to a deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing damages, either had obtained or should reasonably have obtained” – See Mayne & Mcgregor on Damages 125 Ed.para.608; citing Beckham v. Drake (1849) 2 H.L.C. 579. This principle was applied by this court in Nigerian Produce Marketing Board v. Adewunmi (1972) 11 S.C. 111. This principle represents the normal measure of damages applicable. See also WNDC v. Abimbola (1966) NMLR. 381.
Appellant has assumed that he need do no more than show the amount he would have earned if he had continued in the employment. This no doubt is the salary he was entitled to and which respondent had agreed to pay. There may also be benefits in kind, the value of which ought to be taken into account in determining the quantum of damages. In calculating the damages due, account must be taken of the tax which would have been payable on them – See British Transport Commission v. Gourley (1956) 1 QB. 314.
Although the learned trial Judge was wrong to have ordered a reinstatement of the appellant because in his view the appellant would only be entitled to three months if his service was lawfully terminated. There was no evidence in support of this finding. The Court of Appeal was in error also that “Exh. M” provided for three months salary in lieu of notice in respect of termination of appellant’s service. I agree with learned Counsel to the appellant that the condition invoked for granting three month’s salary on termination, applies only to officers on contract. In such a situation the common law rule applies.
However, the Court of Appeal allowed the appeal on the ground that the trial court ought not have made the declaration in favour of the appellant, and to order reinstatement. I agree with the submission of Mr. Sowemimo that appellant did not lead any evidence in support of the claim that he is a permanent officer of the respondent council occupying an established post. The averments in his pleadings which claim that he is an employee of respondent council are paragraphs 1,3 of the amended statement of claim which aver that:
“The plaintiff was at all times relevant to this action an employee of the defendant and as at the time of the purported dismissal of the plaintiff he held the position of an Acting Principal Assistant Registrar.”
Again paragraph 3 averred that
“The plaintiff says that in the years 1974 and 1975, he was the Defendants Branch Controller at Enugu.”
These are the only averments which touched and concerned appellant’s status in the respondents Council. In his oral evidence, appellant did not so much as elaborate on these averments. It is true they were admitted by the respondent, but there was nothing in the averments to show that appellant was occupying an established post as a permanent officer. There was no evidence that the post of Principal Assistant Registrar is an established post or that appellant was a permanent officer. These facts ought to have been averred in the amended statement of claim. The amended statement of claim did contain claims for gratuity and pension which the 16 years of service claim could have entitled him to earn. These averments were specifically denied by the respondents. Issue was therefore joined, putting the onus on the appellant to established the facts so averred. Only so much as were averred were therefore admitted.
Appellant having not established the fact that he is a permanent officer occupying an established position, is not entitled to claim conditions of service applicable to such officers. The Court below was therefore entitled to reject, and properly rejected the claims.
The question therefore is on what basis did the court below grant appellant the three months salary in lieu of notice It could not have been on the evidence before the learned trial Judge. Although appellant did not establish that he is a contract officer, it is reasonable to infer that the admission of the averments in paragraphs 1 and 3 of the Statement of Claim is that he is not a contract officer. Chapter 9 of “Exh. M” deals with discipline, including Dismissal at paragraph 9.10. Paragraph 9.11 which deals with Termination of Appointment enables the council, “if satisfied having regard to the conditions of the service, the usefulness of the employee thereto and all other circumstances of the case, that it is desirable in its interest so to do, it may dispense with service of the employee and the service shall accordingly terminate on such date as the council shall specify.” The Council is allowed to resort to this method of removing an employee, if “it considers that it is desirable in its interest that any employee should be removed from its services on ground which cannot suitably be dealt with by the procedure laid down in 9.10 …..
This allows the respondent Council to avoid the procedure for dismissal and to terminate the appointment of an officer.
The respondent Council if empowered to terminate such an employee on such a date as the Council shall specify. It is well settled that where there is a contract of service, there is an implied term that the contract can only be terminated by reasonable notice. In Re African Association Ltd. and Allen (1910) 1 KB. 396, there was a clause providing “that the employers may at any time thereafter at their absolute discretion, terminate this engagement at any earlier date than specified if they may desire to do so.” It was held on the reading of the contract as a whole that the employers could not in the absence of agreement terminate the contract without reasonable notice. What is a reasonable is usually dependent on the nature of the contract, and status of the employee in the establishment. Hence the higher the position held by the servant and the larger his salary the longer will be the notice required to put his contract at an end.
In the instant case appellant is the Acting Principal Assistant Registrar, and Branch Controller of the Respondent’s Council in Enugu. In the absence of proof of the conditions applicable the court below was right to infer the giving of a reasonable notice for termination of appellant’s appointment and in not accepting the immediate termination stated in “Exhibit J”. The three month’s notice would seem to be reasonable in the circumstance.
Thus even if appellant was not a contract officer to whom paragraph 2.03 of “Exhibit M” did not apply he is not an officer of the respondent Council to whom paragraph 9.11 applies.
This however, is not the end of the mailer. I shall refer to the Cross-Appeal of the respondent against the award of damages. Learned Counsel to the respondent has referred to the cross-appeal brought under Order 8 r.12(5) of the Supreme Court Rules 1985. The ground of appeal was that the Court of Appeal ought not have awarded the damages to appellant after learned Counsel to the appellant had declared in the Court that they were abandoning the claim for damages.
It has been submitted relying on Ebosie v. Ebosie (1976) 7 S.C. 113 that the court had no jurisdiction to award a relief not sought by a party to the action.
Learned Counsel to the appellant has not replied to the argument in the cross-appeal.
I find it unanswerable.
Appellant in this court, having as respondent in the court below declared that he was abandoning the claim for damages, such a claim having been withdrawn was therefore not before the court. The Court of Appeal was therefore in error to have awarded damages.
The appeal of the appellant therefore fails and is accordingly dismissed.
Appellant shall pay N1,000 as costs to the Respondents.
S. KAWU, J.S.C.: I have had a preview of the lead judgment of my learned brother, Karibi-Whyte, J.S.C. I agree entirely with his reasoning and also with the conclusion that the appeal should be dismissed. I too will dismiss the appeal with N1000.00 costs awarded to the respondent.
A. B. WALI, J.S.C.: I am privileged to have read in advance, a copy of the lead judgment of my learned brother, Karibi-Whyte, J.S.C, and I agree with his reasoning and conclusions.
For those same reasons given in the lead judgment, I also find this appeal lacking in merit and it is accordingly dismissed with N1000.00 costs to the respondent.
U. OMO, J.S.C.: I have been privileged to read in draft the judgment of my learned brother Karibi-Whyte, J.S.C, just delivered.
I so entirely agree with same that I have nothing useful to add thereto.
Accordingly I also hold that the appellant’s appeal has failed, and dismiss same with N1,000.00 costs to the respondents.
E. O. OGWUEGBU, J.S.C: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi-Whyte, J.S.C, and I am in entire agreement with his reasons and conclusions.
For those reasons given in the lead judgment which I adopt as mine, I too would dismiss the appellants appeal. I abide by the orders made by my learned brother, Karibi-Whyte, J.S.C.
Appeal dismissed.
SC.188/1988
