In The Court of Appeal

(Kaduna Judicial Division)

On Friday, the 19th day of April, 2013

Suit No: CA/K/282/2006

 

Before Their Lordships

 

  

DALHATU ADAMU

....... Justice, Court of Appeal

THERESA NGOLIKA ORJI-ABADUA

....... Justice, Court of Appeal

ITA GEORGE MBABA

....... Justice, Court of Appeal

 

 

 

 Between

NEW NIGERIA NEWSPAPERS LIMITED

Appellants

 

 

 

 And

    

MR. FELIX ATOYEBI

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

DAMAGES - AWARD OF GENERAL DAMAGES: Whether it is proper for a court to award general damages for wrongful dismissal in a contract of employment

 

 

"I agree with learned Counsel for the Appellant that award of general damages for wrongful dismissal, in a contract of employment, is strange. This is because what is computed for a successful party in such circumstance cannot be general damages, but proven special damages, which actually is the salaries and other entitlements of the Plaintiff during the period of the purported termination or dismissal, or what would have accrued to him had the dismissal or termination complied with the due process envisaged in the Condition of service, that is, the entitlement payable to the Plaintiff in lieu of notice (where re-instatement cannot be ordered). See the case of ADENIRAN VS. NEPA (2002) 14 NWLR (Pt.786) 30 at 48 See also the case of KWARA STATE POLY VS. SALIU (supra); NIGERIAN PRODUCE MARKETING BOARD VS. A. O. ADEWUNMI (1972) ALL NLR 870. INTERNATIONAL DRILLING NIG. LTD VS. AJIJALA (1976) ALL NLR 97; SPDC LTD VS. OLAREWAJU (2008) 12 SC (Pt.111) 27;" Per MBABA, J.C.A (Pp. 41-42, paras. C-A)

 

 

 

 

2

CONTRACT - CONTRACT OF EMPLOYMENT: When is a contract said to have statutory flavor

 

 

"A contract is said to have statutory flavour where the contractual relationship between the employer and the employee is governed by a statute or regulations derived from statutes. See NEPA vs. Adesaaji (2002) 17 NWLR Part 797 page 578. Therefore, where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made thereunder, it is said to be a contract protected by statute and any person in that employment enjoys a special legal status over and above the ordinary, common law master and servant relationship. In matters of termination or discipline under such a contract, the procedure laid down in the applicable statute or regulations made thereunder must be religiously followed as any breach would render the exercise null and void." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 59-60, paras. D-A)

 

 

 

 

3

CONTRACT - CONTRACTS OF EMPLOYMENT: Categories of contracts of employment

 

 

"It should be noted that contracts of employment fall into three categories; a) Master and servant, relationship; b) Where a servant holds an office at the pleasure of master; and c) Employment that is governed by statute." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 59, paras. C-D)

 

 

 

 

4

DAMAGES - DAMAGES RECOVERABLE IN TERMINATION OF EMPLOYMENT: What is the damages recoverable for wrongful termination of employment

 

 

"So, on damages recoverable for wrongful termination of employment, the remedy available to an employee who had been dismissed or terminated wrongfully is an action for damages and the normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. That is the quantum of damages and the Court would not award general damages. The damages may also include an assessment of other benefits which the dismissed employee would have earned from the continuation of his employment; for example, the value of boarding and lodging or of rent or of free house. But the employee cannot claim for loss of expected benefits if those were benefits which the employer was not contractually bound to give. See Ogbaji vs. Arewa Textiles Plc (2000) 11 NWLR Part 678 page 322 at 325 ration 5. As for the special and general damages claimed for unpaid services and dismissal for shocks, sufferings, false imprisonment and malicious publication, the cases cited above clearly established that general damages cannot be awarded in cases of wrongful termination of employment." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 79-80, paras. F-D)

 

 

 

 

5

LABOUR LAW - DISMISSAL OF AN EMPLOYEE: Whether it is a requirement under the law that before an employer can dismiss his employee for gross misconduct involving dishonest bordering on criminality, such employee must be tried first before a court of law

 

 

"I would, refer to Arinze vs. F.B.N. Ltd (2004) 12 NWLR Part 888, page 663, where Belgore, J.S.C., (as he then was) stated that in statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct. The case of Yusuf vs. Union Bank of Nig. Ltd (1996) 6 NWLR Part 457 page 632 was referred to therein, where Wali, J.S.C., expressed at pages 214 - 215 thus: "it is not necessary, nor is it a requirement under the common law, that the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality... To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him." Onu, J.S.C., further stated that since the Appellant has been confronted with the accusations and he was given opportunity to explain and the explanation showed that he had no satisfactory answer to the accusation and, on the authority of Yusuf vs. Union Bank of Nigeria Ltd. (supra); Nwobosi vs. A.C.B. Ltd (1995) 6 NWLR Part 404 page 658 at 586, it was not necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him by summarily dismissing him where the Appellant's misconduct undermined the relationship of confidence which should exist between the Appellant and his employer." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 72-73, paras. C-D)

 

 

 

 

6

LABOUR LAW - DISMISSAL OF AN EMPLOYEE: Whether employer in a master and servant employment relationship can dismiss his employee without first telling him what is alleged against him and hearing his defence or explanation

 

 

"It is also necessary to note the observations of the Supreme Court in Olarewaju vs. Afribank (Nig) Plc. (2001) 13 NWLR Part 731- page 691, where Katsina Alu, J.S.C., (as he then was) expressed at pages 708 at 714 as follows: where, therefore, an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case. "The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. What this means is this. In this class of cases an officer's appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice. " Further, in Texaco Nigeria Plc vs. Alfred G. Adegbile Kehinde (2001) 6 NWLR Part 708 Page 224 at 228-229, Onnoghen J.C.A (as he then was) stated that whether the dismissal is lawful or unlawful, in a purely master and servant situation it has brought the relationship to an end. The relationship was brought to an end, and too, the Court cannot force a wiling servant on an unwilling master." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 73-74, paras. D-E)

 

 

 

 

7

LABOUR LAW - DISMISSAL OF AN EMPLOYEE: What is the effect where an employee's dismissal is found to have been wrongful or null and void

 

 

"Where an employee is found to have been wrongfully dismissed, the dismissal is complete and it cannot be held that the employee was still in the employment of his employer. On the other hand, where the dismissal is invalid or void, as for instance where it is purportedly done by a person who does not have the power to dismiss, there is no dismissal. See Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 page 25 at 28 ratios 3 and 4." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 79, paras. C-F) - read in context

 

 

 

 

8

LABOUR LAW - DISMISSAL OF AN EMPLOYEE: When is a dismissal "wrongful", "null and void"

 

 

"A dismissal is "wrongful" when an employer did not follow a laid down procedure in dismissing an employee. A dismissal is "null and void" when an employee is dismissed from his employment by a body other than his employer or the person who has power to dismiss him." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 79, paras. B-C) -read in context

 

 

 

 

9

COURT - DUTY OF COURT: When does the court have duty to order reinstatement of an employee

 

 

"In fact by law the Court has a duty to order reinstatement, once it finds that the contract of employment enjoyed Statutory flavour. ADEJEMIWA VS. OGUN STATE COLLEGE OF EDUCATION (2000) ALL FWLR (Pt. 456) 11804." Per MBABA, J.C.A. (P. 41, paras. A-B) - read in context

 

 

 

 

10

COURT - DUTY OF COURT: Whether it is the court that has the duty to determine the question whether a contract of employment is governed by statute or not

 

 

"So, the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or of the relevant statute. The duty so to construe is the exclusive preserve of the Courts. See Iloabachie vs. Phillips (2002) 14 NWLR Part 787 page 264. The onus lies strictly on the Plaintiff i.e., the employee to supply the Court with facts tending to establish that his said appointment with the Defendant was governed by statute. The court is not entitled to look outside the contract of service as to the terms and conditions. They must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 60, paras. A-D) - read in context

 

 

 

 

11

LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: Whether the fact that an employer is a creation of statute or that the government has shares in it, will elevate its employment to one of statutory flavour

 

 

"The law had been repeatedly stated by the apex Court that the mere fact that an employer is a creation of statute or that it is a statutory body or a statutory corporation, or that the government has shares in it does not elevate its employment to one of statutory flavour, nor without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Further, the fact that a person is a pensionable Federal Public Servant does not mean that his contract of employment is protected by statute. Rather, there has to be a linkage or nexus between the employee's appointment with the statute creating the employer or corporation. See cases of Iyase vs. U.B.T.H.M.B (2000) 2 NWLR Part 643 page 45; Igwilo vs. CBN (2000) 9 NWLR Part 672 page 302; U.B.T.H.M.B vs. Dawa (2001) 16 NWLR Part 739 page 424; and Olatunbosun vs. NISER (1998) 3 NWLR Part 80 page 25;" Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 45, paras. B-F) - read in context

 

 

 

 

12

LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: Conditions to be satisfied before an employment can be said to be with statutory flavour

 

 

"Before such employment can be said to have enjoyed statutory flavour, the Act governing the employment and the regulations made pursuant to the said Act must be expressly incorporated into the contract existing between the parties. It is such incorporation that gives rise to special treatment by way of statutory or legal flavour in the event of the Master deciding unilaterally to terminate the appointment of servant: See Alhassan vs. A.B.U., Zaria (2011) NWLR Part 1259 page 417. For further elucidation, it is stated that a servant with a legal or special status covers an employee whose employment is governed by the provisions of the Constitution or by the Civil Service Rules made pursuant to the Constitution." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 67, paras. B-F) - read in context

 

 

 

 

13

LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: The ingredients that must exist before a contract of employment may be said to import statutory flavour

 

 

"Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavour include the following: 1. The employer must be a body set up by statute. 2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline" Peter-Odili J.S.C., went further to state: "In a similar vein and in the same case of Idoniboye-Obu vs. N.N.P.C. (supra) at 1004, Niki Tobi, J.S.C cited with approval, the opinion of Karibi-Whyte, J.S.C. in Imoloame vs. W.A.E.C. (1992) 9 NWLR Part 265 303 at 317, paragraphs C-E, added another feature in these words. "There is an employment with statutory flavour when the appointment and termination is governed by statutory provisions... it is now accepted that where the contract of service is governed by the provisions, they invest the employee with a Legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 46, paras. A-F) - read in context

 

 

 

 

14

LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: The nature of employment with statutory flavour

 

 

read in context

 

 

 

 

15

COURT - JURISDICTION: Whether court has the jurisdiction to interpret a contractual document to favour a party outside the terms and conditions provided in the documents

 

 

"It is well established that a court has no jurisdiction to interpret or construe contractual documents more favourably to a party outside the terms and conditions provided in the documents. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See Daodu vs. U.B.A Plc (2004) 9 NWLR Part 878 page 276 at 279, per Adekeye, J.C.A., (as she then was)." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 60, paras. E-G) - read in context

 

 

 

 

16

DAMAGES - MEASURE OF DAMAGES: What is the measure of damages in a claim for wrongful dismissal

 

 

"In a claim for wrongful dismissal the measurement of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (See Beckham VS. DRAKE (1849) 2 HCC 579 at 607 - 608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal." Per UWAIS JSC, as he then was. (Who also relied on the English case of DENMARK PRODUCTION LTD VS. BOSCOBEL PRODUCTIONS LTD (1968) 1 ALL ER. 513 AT 524, where it was had that:" As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course instigate those damages as far as he reasonably can." Per MBABA, J.C.A (P. 40, paras. B-G) -read in context

 

 

 

 

17

DAMAGES - MEASURE OF DAMAGES: The measure of damages to be awarded, to a servant whose employment is unlawfully terminated

 

 

"A servant would only be paid for the period he served his master and, if he is dismissed, all he gets as damages is the amount he would have earned if his appointment had been properly determined. The servant is to be paid all his salaries and entitlements up to the date of his dismissal. Thereafter, he is to be paid a month's, two months, three months' salary and other entitlements in lieu of notice depending on the terms and conditions of service between the parties. Where no period of notice is stipulated or agreed upon by the parties, the law stipulates that he be given reasonable notice. See Isong Udofia Umoh vs. Industrial Training Governing Council (2001) 4 NWLR Part 703 page 281 at 300-301, per Edozie J.C.A (as he then was), in which the Supreme Court case of Professor Dupe Olatunbosun vs. NISER Council (1988) 3 NWLR Part 80 page 25, was referred to and in which Oputa J.S.C cited with approval the dictum of Harman L. J. In Denmark Production Ltd. vs. Boscobel Production Ltd. (1968) 1 All ER 513 at p. 524." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 76-77, paras. D-B) - read in context

 

 

 

 

18

DAMAGES - MEASURE OF DAMAGES: What is the measure of damages to be awarded to an employee whose employment is unlawfully terminated in a contract of employment which is of the ordinary nature other than one with statutory-flavour

 

 

"In a contract of employment which is of the ordinary nature other than one with statutory-flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period's salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end. The measure of damages, therefore, will be the salary which the employee would have earned during the period of notice. See also McGregor on Damages, 17th Edition at page 937 paragraphs 28-002 and 28-003. Also, in Ibama vs. S.P.D.C (Nig) Ltd (2005) 17 NWLR Part 954 page 364, Onnoghen J.S.C., expressed that in cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master behavior is wrong. For his wrongful act, he is only liable in damages and nothing more." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 77-78, paras. B-A) - read in context

 

 

 

 

19

COURT - POWER OF COURT OF APPEAL: Whether the Court of Appeal has powers to enter such decision which a trial Court was entitled to make in a case in the interest of Justice

 

 

"Section 15 of the Court of Appeal Act, 2011, as well as Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011, allow this Court powers to enter such decision which the trial Court was entitled to make in the case in the interest of Justice, See the Case of AFRIBANK VS. YELWA (2011) 12 NWLR (Pt.1261) 286 at, or (2011) ALL FWLR (Pt.586). I think this is an appropriate circumstance to invoke the powers of this Court, under the law, to do substantial justice. HAS Nig Ltd Vs. KEAZOR (2011) 13 NWLR (Pt.1264) 320 at 260; OKONKWO VS. FRN (2011) 11 NWLR (Pt.1258) 215." Per MBABA, J.C.A (Pp. 40-41, paras. E-A) - read in context

 

 

 

 

20

ACTION - RELIEFS: Whether it is proper to claim, in an action for unlawful termination of employment other than employment with statutory flavour, the relief that the dismissal is unlawful, ultra vires, null and void

 

 

"Turning to the reliefs claimed by the Plaintiff, it is of great necessity to state at this juncture that it is only in employments under statute or which have statutory flavour that a dismissal can be said to be unlawful, ultra vires, null and void and of no effect, that the purported dismissal was not done by the correct officer designated to do the termination or dismissal, or that the correct procedure stipulated in the enabling statute was not followed. In all other cases which have no statutory flavour, all the Court can say is that the dismissal is wrongful. See CCB (Nig) Ltd vs. Okonkwo (2001) 5 NWLR Part 735 page 114 at 118 ration 2." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 78-79, paras. F-A) - read in context

 

 

 

 

21

LABOUR LAW - REMEDY FOR UNLAWFUL TERMINATION OF EMPLOYMENT: What is the remedy available to an employee in a master/servant relationship whose employment is terminated unlawfully

 

 

"Being an ordinary master and servant relationship in my view, the Respondent's remedy lies in the award of damages, and not on reinstatement. A termination of a contract of service, whether lawful or unlawful, brings to an end the relationship of master and servant." Per ORJI-ABADUA, J.C.A (DISSENTING) (P. 76, paras. B-D) -read in context

 

 

 

 

22

LABOUR LAW - REMEDY FOR UNLAWFUL TERMINATION OF EMPLOYMENT: What remedy should a court provide for the termination of employment with statutory flavour held to be null and void

 

 

"I think this was a clear case for order of re-instatement, since the employment was proved to be one with statutory flavour and it was established that the purported dismissal was null and void, therefore, meaning that in the eye of the law, the dismissal never occurred, and the Respondent's employment was never interrupted. To hold that Respondent be paid for loss of earning, in the circumstances, was strange as that would give the Respondent only what he earned a month for one year and it would mean, giving him wages for what he did not work! A servant cannot claim wages for services he never rendered. See the case of OLATUNBOSUN VS. NISER (1988) 3 NWLR (Pt. 80) 25 at 55. I think, in the circumstance, an order for reinstatement of the Respondent would be more appropriate, not payment of N12,493.00 annually (the Salary he earned per month at the time of the purported dismissal) up to the age of retirement!" Per MBABA, J.C.A (Pp. 39-40, paras. E-B) -read in context

 

 

 

 

23

INTERPRETATION OF STATUTE - SECTION 4(A)(B) AND (C) OF THE STATUTORY CORPORATION PENSIONABLE OFFICERS (RETIRING AGE LIMIT) ACT:Interpretation of Section 4(a)(b) and (c) of the Statutory Corporation Pensionable Officers (Retiring Age Limit) Act, Cap 419, Laws of the Federation 1990 as to the category of employment qualified and entitled to profit from the pension scheme under the Act

 

 

"Section 4(a)(b) and (c) of the Statutory Corporation Pensionable Officers (Retiring Age Limit) Act, Cap 419, Laws of the Federation 1990, state as follows: "(4) This Act - (a) applies to all pensionable officers of statutory corporations whether or not such officer was employed by the corporation by or under any contract, agreement or arrangement or under any instrument whatsoever, and anything under the terms of employment of the officer inconsistent with the provisions of this Act shall to the extent of the inconsistency be void and of no effect; (b) applies to all persons who qualify for or become pensionable officers in the employment of any statutory corporation before, on or after the commencement of this Act. (c) extends to any corporate body established under the companies and Allied Matters Act which is owned or partially owned by the Government of the Federation, or of a State in the Federation, or as respects which the Government of the Federation or of such State owns any shares, stocks or debenture; (d) - " There is no dispute that the Appellant is owned by the Government of the Federation, although formed as a limited liability company, under the Companies and Allied Matters Act. The conditions of service of the Appellant (Exhibit 3) made the service of the Respondent pensionable and it is abundantly clear, from the provisions of section 4(c) of the Statutory Corporations Pensionable Officers (Retiring Age Limit) Act, quoted above, that Appellant's employees (including the Respondent) are qualified and entitled to profit from the scheme, being brought under the ambit of Federal Public Service, and their employment therefore garnished with statutory flavour." Per MBABA, J.C.A. (Pp. 36-37, paras. C-E) - read in context

 

 

 

 

24

DAMAGES - SPECIAL DAMAGES: The requirement of the law where special damages is claimed

 

 

"In the case of Dumez vs. Ogboli, it was held per Lewis, J.S.C, that; "it is axiomatic that special damages must be strictly proved and unlike general damages if the Plaintiff establishes in principle his legal entitlement to them, a trial judge must make his own assessment of the quantum of such and on appeal to this Court such general damages will only be altered if they were shown to be either manifestly too low or awarded on a wrong principle. So far as special damages are concerned, a trial judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded, just as a trial Judge when for instance he is assessing compensation to be paid for land compulsorily acquired must do, as we indicated in the Governor of Mid-Western Province & Ors. vs. Eluaka & Ors. S.C.181/67 (unreported) of the 23rd of October, 1970..... "pages 204 -205." So, it would be improper for the Court without empirical evidence by the Plaintiff to make award based on the figure stated in the particulars of claim of the Plaintiff. The Plaintiff ought to have pleaded and proved the exact amount he ought to have earned between 7/9/87 and 28/9/88." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 80-81, paras. G-F) - read in context

 

 

 

 

25

CONTRACT - TERMS IN CONTRACT DOCUMENT: The uses of the terms in contract document

 

 

"It is trite that if any question arises with respect to the contract entered into by the parties, the terms in any document which constitute the contract are invariably, the guide to its interpretation. So, in its construction of contracts, it is the duty of the Court not to look at a contract in a narrow manner for its interpretation. The entire documents must be looked into and in conjunction with the dealings of the parties to know what they meant." Per ORJI-ABADUA, J.C.A (DISSENTING) (Pp. 58-59, paras. G-B) - read in context

 

 

 

 

 

 

 

 

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court in Suit No. KDH/KAD/373/1988 delivered by Hon. Justice A. A. Othman on 29/11/2004, wherein the lower Court held that the Summary dismissal of the Respondent was against the rules of Criminal justice, equity and fair hearing, and that the employment was governed by statutory flavour, and that the Appellant could not just dismiss him like one employed under master/servant engagement.

Appellant filed the appeal on 21/12/2004, disclosing five grounds of appeal, as per the Notice of Appeal on pages 83 - 85 of the Records of Appeal. It also filed its brief of argument on 7/2/2007 and the same was deemed duly filed on 17/4/2007, The Respondent did not file any brief but had on 21/04/2007 filed a Notice of preliminary objection pursuant to Order 10 of the Court of Appeal Rules to challenge the competency of the appeal on the ground:

"That Appellants purported Notice of Appeal dated the 15th day of December, 2004, 5 (sic) captioned or "In the High Court of Justice of Kaduna State" and not to the Court of Appeal, Consequently no valid notice of Appeal has been filed is (sic) this Honourable Court,"

Because the Respondent failed to file his brief of argument, Appellant brought a motion 12/12/2011 praying that the Appeal be heard on its brief alone and the same was granted on 29/3/2012.

There is evidence the Respondent was served with the hearing Notice of this appeal on 22/2/2013 for the hearing on 28/2/2013. He was not in court, neither his Counsel and so the process (Notice of preliminary Objection), filed by the Respondent stands abandoned and is hereby struck out,

In its brief of argument, Appellant distilled five (5) issues for determination as follows:

"(1) Whether the trial Court was right when he held that the nature of relationship between the Appellant and the Respondent is not master/servant relationship (Ground 1).

(2) Whether the dismissal of the employment (sic) of Respondent was wrongful (Ground 2)

(3) Whether the trial court was right when he ordered payment of Salary to the Respondent, up till his retirement age, after holding that there could be order for reinstatement (Ground 3)

(4) Whether the proper principles of the law in awarding damage in contract of employment were properly applied by the trial court (Ground 4)

(5) Whether the trial Court properly evaluated the evidence before him it (sic) reaching its conclusions (Ground 5)."

Arguing Issue 1, Learned Counsel for the Appellant, Oladipo Tolani Esq (who settled the Brief), submitted that the learned trial court was wrong to hold that the Respondent's employment was one of statutory flavour, because the Appellant is 100% owned by the Federal Government. Counsel said that the Respondent had pleaded in paragraph 2 of his pleading that Appellant was a Limited Liability company and asserted in paragraph 4 (a) that he was in the Public Service and covered by Appellants condition of service in Exhibit 3; that no evidence was led to show that Appellant was set up by any statute, and none was referred to during the trial.

Counsel argued that for employment to be of statutory nature, it must be established beyond peradventure that the Company was set up by a statute and that the condition of service - including terms of employment, dismissal and termination - is set out in the statute which set up or established the Company or Corporation. He relied on the case of OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 12 NWLR (Pt. 9) 599; NEPA VS. ISIEWORE (1997) 7 NWLR (Pt. 511) 135 at 147, to say that in cases governed by agreement of parties and not by statute, removal by way of termination or dismissal will be in the form agreed. He further relied on the case of SHITTA BEY VS. FRSC (1981) 1 SC 40 at 56; UBN VS. OGBOR (1995) 2 NWLR (Pt. 380) 649; CHUKWUMA VS. SHELL PET. (1983) 4 NWLR (Pt. 289) 512 at 560.

Counsel therefore submitted that since there is no statute setting up the Appellant, and the condition of service applicable cannot be found in any statute but provided for in exhibit 3, the relationship between the parties was purely master/servant relationship; that the trial judge erred when he based his decision on the ground that Appellant was owned 100% by the Federal Government; he submitted that the fact that an organization is owned by the Federal Government does not mean that the conditions of service of its employees is of a special character, ruling out that of master/servant relationship. He cited and relied on the case of FAKUADE VS. OAUTH (1993) 5 NWLR (Pt.291) 47 at 57A - 58b; NEPA VS. ADESAAJI (2002) 17 NWLR (Pt. 797) 578 at 604.

He urged, us to resolve the issue in Appellant's favour.

On Issue 2, Appellant admitted that the Respondent's appointment was pensionable but submitted that under the Condition of Service (Exhibit 3), Appellant was right to dismiss him (Respondent) summarily for his inability to perform the duties, of his office and for dereliction of duties, resulting in financial losses to the Appellant. He relied on the Exhibits 11A and 11B (audit reports) and on Exhibits 16 and 17 (cheques collected from those who were overpaid), He also founded on the evidence of the PW1 and PW3, on the acts of the Respondent that led to the dismissal (Page 37, 44 and 47 of the Records) and said that the trial Court was wrong to hold that the dismissal was wrongful in the face of the evidence, including admission by the Respondent that ghost workers were being paid salaries and that there were cases of over payments.

He reproduced the job description of the Respondent on page 10 of Exhibit 20, as a principal accountant and submitted that, from paragraph 8.5 of the Condition of Service (Exhibit 3), the Appellant had the competence to dismiss him for gross misconduct. He relied on the case of ACB PLC VS. NBISIBE (1995) 8 NWLR (Pt. 416) 725 at 745 on the definition of dismissal, He also relied on the case of AJAIYI. TEXACO NIG LTD (1987) 3 NWLR (Pt. 62) 577 at 593, to say that there is no fixed rule of law defining the degree of misconduct to warrant dismissal; that it is enough that the conduct is of grave and weighty character as to undermine the confidence which should exist between the employee and the employer; that working against deep interest of the employer clearly amounts to gross misconduct, entitling the employer to peremptorily dismiss the employee, irrespective of the Condition of Service.

He urged us to resolve this issue for the Appellant.

On Issues 3 and 4, which Appellant argued together, Counsel restated that the trial Court, upon holding that the dismissal was wrongful, ordered the payment of the Respondent's Salary (N12,493.00 per month) from October, 1983 (when the Suit was filed) to the date of judgment (29/11/2004) and for payment of salary until the Respondent reached retirement age, Counsel submitted that this cannot apply in an employment without statutory flavour, and relied on his argument on issue 1 to support the contention. He relied on the case of OLANIYAN VS. UNILAG (supra); OLATUBOSUN VS. NISER (1988) 3 NWLR (Pt. 80) 25 at 55.

In the alternative, Counsel submitted that assuming (but not conceding) that we hold that the trial court was right in holding that the dismissal was wrongful, that the measure of damages that can enure to the Respondent is limited to the amount agreed by the parties. He relied on the case of ADENIRAN VS. NEPA (2002) 14 NWLR (Pt. 786) 30 at 48, where he said it was held that a servant would only be paid for the period he served his master, and if he is dismissed, wrongfully, all he gets is the amount he would have earned if his appointment had been properly determined; that the proper order for the lower Court to make, in the circumstances, would be for payment of all his Salaries and entitlement up till the date of dismissal and, thereafter, his Salary in lieu of notice; that the Respondent would therefore be entitled to just one month Salary.

Counsel further submitted that the trial Court, compounded the pitfalls in the judgment by awarding N100,000.00 sought by Respondent as general damages, saying that this is contrary to the known principles of law in contracts of employment, as enunciated by the Supreme Court in the case of OLATUBOSUN VS. NISER (supra) at page 56H - 57A

He urged us to resolve the issue in favour of the Appellant.

On Issue 5, whether the Court properly evaluated the evidence before it in reaching the conclusion, Counsel submitted that the Court did not; that all it did was to go through the evidence that were already before it, and nothing more. He referred us to page 77 to 80 of the Records of Appeal and said that no specific findings were made on the facts that the Respondent was dismissed for dereliction of duty, which occasioned financial losses to the Appellant; that the Appellant had the power to dismiss any employee found guilty of serious misconduct as set out under paragraph 8.5 of Exhibit 3 (Conditions of Service) and that in such cases no notice will be given.

Counsel referred us to the fulcrum of the Appellant's defence in paragraphs 11 -13 of the statement of defence (page 20 of the Records) and submitted that the trial court failed to evaluate the evidence to see if, from the evidence before him, there were sufficient materials bearing the facts of the dereliction of duties by the Respondent. He relied on Exhibit 20, which he said being a document, did not admit of any oral evidence to explain away its content. He relied on Section 132(1) of the Evidence Act and on the case of OKONKWO VS. CCB (1997) 6 NWLR (Pt. 508) at 62

He submitted that it is the primary duty and function of the trial Court to evaluate evidence and after weighing the evidence, based on the pleadings of the parties, to set up an imaginary judicial scale and put the evidence for the Plaintiff on one side of the scale, and put that of the defendant on the other side of the scale, and weigh both together, not by the number of witnesses called by either side, but by ascribing probative value to the evidence and to where the scale tilts or preponderates. He relied on DOSUMMU VS. DORA (2002) 12 NWLR (Pt.783) 1 at 32 AND 33; OLULATE VS. AWOSANYA (2000) 7 NWLR (Pt. 546) 530.

Counsel asserted that had the trial Court averted its mind to the nature of the case put forward by the parties, it would have had a different view. He urges us to resolve this issue too in Appellants favour and allow the Appeal.

RESOLUTION OF ISSUES:

As earlier stated, the Appeal was heard on Appellant's brief alone because the Respondent failed to file any Brief.

A brief facts of this case, shows that the Appellant, a Publishing Company, solely owned by the Federal Government, dismissed the Respondent, its principal Accountant, for what it called gross misconduct, pursuant the Conditions of Service (Exhibit 3), following, the audit report of the Company, which Appellant claimed established dereliction of duties against the Respondent. The Appellant had reported the Respondent to the Police and he was investigated and subsequently cleared by the Police. Appellant had suspended him during the period of investigation and failed to recall him after being cleared by the Police. It rather dismissed him.

The Respondent had asserted that there was no basis for the dismissal having been cleared by the Police (Exhibit 6) and was not indicted by the interim and final reports of the audit (Exhibits 11 and 12).

Of course, the trial judge agreed with him and said.

"Is it proper to dismiss the plaintiff in this case considering the 2 Auditors report, the Police investigation report (sic) in my humble view the dismissal of the plaintiff is totally unwarranted, The proper thing to do is first to query the plaintiff and demand for his explanation on the role played and that should have been in writing, going by the content of Exhibit 3... This is to afford the plaintiff a fair hearing... especially in view of the fact that in both reports, the plaintiff is not found culpable...It appears that the management clearly depends on the 2 report of both the Police and the chief internal Auditor, i.e. both Criminal allegation and in-house investigation of the Defendant company and in both reports the Plaintiff was found and declared blameless..." (See page 80 of this Records)

Appellant has, obviously, not appealed against these findings of the trial Court, showing why the dismissal of the Respondent was held by the trial Court to be wrongfully; that there was no basis for it and that Appellant did not afford the Respondent fair hearing!

The 2nd issue by the Appellant therefore cancels itself out, as the trial court's decision thereon was not being challenged.

It appears what really concerned the Appellant was the Order for the Appellant to pay the Respondent all his Salaries and entitlement up to the age of retirement, which the Appellant says was wrong, because, according to it, the employment was not one with statutory flavour, though Appellant admits it is owned by the Federal Government, 100%! That relates to issues 2 and 3, which I shall take together.

The learned trial judge had held on page 81 of the Record as follows:

"I wish to observe that the relationship between the plaintiff and the Defendant is clearly governed by the condition of service set out in Exhibit 3, which is that of employment and not that of master/servant, This is because the defendant, as rightly submitted belongs to the Federal Government 100%, even though it is a company but belongs to the Federal Government and as such governed by statutory flavour, The plaintiff cannot just be dismissed like that of master and servant engagement."

The Respondent had pleaded in paragraphs 4(a) and 4(b) of the Amended statement of claim as follows:

4(a) "That the plaintiff also states that his employment is public service in nature and covered by the Defendants Company condition of service and pensionable in nature and the plaintiff hereby pleads the Defendant condition of service and the statutory corporations pensionable officers (Retirement age Limit Act) Cap 346 Laws of the Federation of Nigeria and same shall be found and relied upon at the hearing of this suit."

4(b) The plaintiff also state (sic) that his employment terms of condition is pensionable and regulated by the Federal Government and the internal memo dated October, 1988 on implementation of Federal Government order on elongation and the new salary structure both are hereby pleaded..."

The Appellant was given notice to produce the original copies of the documents at the trial. (See pages 8 and 9 of the Records).

The Respondent's consequentially Amended Statement of Defence admitted paragraphs 1, 2, 3, 4 and

5 of the statement of claim. (See page 19 of the Records).

Giving evidence on the point, the Respondent, as PW1 said:

"By virtue of my employment I am a Public Servant and pensionable officer. There is a gazette which categories the New Nigeria i.e, the defendant which categories the staff of New Nigeria Newspaper as pensionable i.e, these (sic) is a Gazette, Internal Memo and New Nigeria Published Gazette. These are the Gazette and Internal Memo."

The documents (3 of them) were tendered and admitted as Exhibits 17, 18 and 19 respectively. (See page 35 of the Record).

Appellant, though a limited liability company, did not deny being wholly owned by the Federal Government and regulated by the Public service regulations which made the staff pensionable officers (staff) under the Federal Government pension scheme, as well as being regulated by the Appellant's condition of service - Exhibit 3, Exhibits 17, 18 and 19, that is, the Gazette, Internal Memo and New Nigeria Published Gazette, respectively, can show that the Appellant was under the strong cord of the Federal Government regulations, which subjected the management and staff of the company (Appellant) to statutory control and rules, common with Federal Government corporations/companies, with regards to relationship of the workers with the government which owned the Appellant. There is therefore no doubt that the employment of the Appellant's servants, including the Respondent, enjoyed statutory flavour and so went beyond mere master/servant relationship,

The Respondent had pleaded the Statutory Corporations Pensionable Officers (Retirement Age Limit Act)

Cap 346 Laws of the Federation, and had relied on the same. As earlier stated Appellant's pleading had admitted the said pleading. Section 4(a)(b) and (c) of the Statutory Corporation Pensionable Officers (Retiring Age Limit) Act, Cap 419, Laws of the Federation 1990, state as follows: 

"(4) This Act -

(a) applies to all pensionable officers of statutory corporations whether or not such officer was employed by the corporation by or under any contract, agreement or arrangement or under any instrument whatsoever, and anything under the terms of employment of the officer inconsistent with the provisions of this Act shall to the extent of the inconsistency be void and of no effect;

(b) applies to all persons who qualify for or become pensionable officers in the employment of any statutory corporation before, on or after the commencement of this Act.

(c) extends to any corporate body established under the companies and Allied Matters Act which is owned or partially owned by the Government of the Federation, or of a State in the Federation, or as respects which the Government of the Federation or of such State owns any shares, stocks or debenture;

(d) - "

There is no dispute that the Appellant is owned by the Government of the Federation, although formed as a limited liability company, under the Companies and Allied Matters Act. The conditions of service of the Appellant (Exhibit 3) made the service of the Respondent pensionable and it is abundantly clear, from the provisions of section 4(c) of the Statutory Corporations Pensionable Officers (Retiring Age Limit) Act, quoted above, that Appellant's employees (including the Respondent) are qualified and entitled to profit from the scheme, being brought under the ambit of Federal Public Service, and their employment therefore garnished with statutory flavour.

The learned trial Court was therefore, absolutely right, in my view, to hold that the Respondent's employment went beyond the master/servant relationship, envisaged in ordinary contract of employment and that it enjoyed statutory flavour.

In the case of KWARA STATE POLY VS. SALIU (2012) 41 WRN 26, this Court held that:

"In employment with statutory flavour, that is employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void see OSUMAH VS. EDO BROADCASTING SERVICE (2005) ALL FWLR (Pt. 253) 773 at 787; OLORUNTOBA OJU VS. ABDULRAHEEM (2009) 26 WRN 1; (2009) 13 NWLR (Pt.1157) 83... such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government ..."

In the case of UNIVERSITY OF ILORIN VS. ABE (2003) FWLR (Pt. 164) 267 at 278 my lord, AMIAZU JCA said:

"It is now firmly established by a long line of decided cases by the apex Court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made thereunder, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant, statute or regulation must be complied with, strictly ..." See also OLANIYAN VS. UNIVERSITY OF LAGOS (2004) 15 WRN 44; (1985) 2 NWLR (Pt. 9) 599; SHITTA BAY VS. FEDERAL PUBLIC SERVICE COMMISSION (1981) SC 40; FCSC VS. LAOYE.

Thus, since the learned trial judge had faulted the dismissal of the Respondent, saying that there was no basis for the same and that the Respondent were not granted fair hearing, especially as the Police report and the Auditor's report did not indict the Respondent, the effect of that, in law, is that the Respondent's employment remained, intact, throughout the period of his suspension and of alleged dismissal and trial, and he was entitled to being paid all his salaries and allowances, from the date of his suspension (as his vindication at the trial nullified the grounds of the suspension), to the date of the purported dismissal, and to the date of judgment, 29/11/2004, as the Respondent remained an employee of the Appellant!

It is however, strange that the Court ordered the salary to be paid to Respondent as N12,493.00 PA (per annum), when that was his salary per month!

The learned trial Court also appeared to conclude, wrongly on the issue of the salaries and entitlements of the Respondent after the date of judgment, when it refused to make an order for reinstatement of the Respondent, but rather order that he be paid for loss of earning, from the date of judgment, at the rate of N12,493.00 PA (per annum?) until he reached the age of retirement!

I think this was a clear case for order of re-instatement, since the employment was proved to be one with statutory flavour and it was established that the purported dismissal was null and void, therefore, meaning that in the eye of the law, the dismissal never occurred, and the Respondent's employment was never interrupted. To hold that Respondent be paid for loss of earning, in the circumstances, was strange as that would give the Respondent only what he earned a month for one year and it would mean, giving him wages for what he did not work! A servant cannot claim wages for services he never rendered. See the case of OLATUNBOSUN VS. NISER (1988) 3 NWLR (Pt. 80) 25 at 55.

I think, in the circumstance, an order for reinstatement of the Respondent would be more appropriate, not payment of N12,493.00 annually (the Salary he earned per month at the time of the purported dismissal) up to the age of retirement!

The Respondent however did not cross appeal on the loss of earning but the Appellant's issue 3, which is hereby resolved in favour of the Appellant, operates in favour of an Order for reinstatement of the Respondent to his office and service of the Appellant. That was one of the reliefs sought by the Respondent as per paragraph 41(c) of his Amended Statement of Claims,

I therefore resolve the issue three in flavour of the Appellant, though that does not seem to enure the Appellant much profit, as the proper order has to be made, for his re-instatement,

Section 15 of the Court of Appeal Act, 2011, as well as Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011, allow this Court powers to enter such decision which the trial Court was entitled to make in the case in the interest of Justice, See the Case of AFRIBANK VS. YELWA (2011) 12 NWLR (Pt.1261) 286 at, or (2011) ALL FWLR (Pt.586). I think this is an appropriate circumstance to invoke the powers of this Court, under the law, to do substantial justice. HAS Nig Ltd Vs. KEAZOR (2011) 13 NWLR (Pt.1264) 320 at 260; OKONKWO VS. FRN (2011) 11 NWLR (Pt.1258) 215. 

In fact by law the Court has a duty to order reinstatement, once it finds that the contract of employment enjoyed Statutory flavour. ADEJEMIWA VS. OGUN STATE COLLEGE OF EDUCATION (2000) ALL FWLR (Pt. 456) 11804.

Appellant had also quarreled with the award of N100, 000,00 to the Respondent, as general damages, in addition to award of salary up to retirement age. I agree with learned Counsel for the Appellant that award of general damages for wrongful dismissal, in a contract of employment, is strange. This is because what is computed for a successful party in such circumstance cannot be general damages, but proven special damages, which actually is the salaries and other entitlements of the Plaintiff during the period of the purported termination or dismissal, or what would have accrued to him had the dismissal or termination complied with the due process envisaged in the Condition of service, that is, the entitlement payable to the Plaintiff in lieu of notice (where re-instatement cannot be ordered). See the case of ADENIRAN VS. NEPA (2002) 14 NWLR (Pt.786) 30 at 48 See also the case of KWARA STATE POLY VS. SALIU (supra); NIGERIAN PRODUCE MARKETING BOARD VS. A. O. ADEWUNMI (1972) ALL NLR 870. INTERNATIONAL DRILLING NIG. LTD VS. AJIJALA (1976) ALL NLR 97; SPDC LTD VS. OLAREWAJU (2008) 12 SC (Pt.111) 27;

See also the case of OBOT VS. CBN (1983) NWLR (Pt. 310) 149, where the Supreme Court said;

"In the case of NIGERIAN MARKETING BOARD VS. AD ADEWUNMI (1972) 11 SC 111 AT 117... this Court held as follows (per FATAI - WILLIAMS JSC as he then was):

"In a claim for wrongful dismissal the measurement of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract (See Beckham VS. DRAKE (1849) 2 HCC 579 at 607 - 608). Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal." Per UWAIS JSC, as he then was. (Who also relied on the English case of DENMARK PRODUCTION LTD VS. BOSCOBEL PRODUCTIONS LTD (1968) 1 ALL ER. 513 AT 524, where it was had that:" As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course instigate those damages as far as he reasonably can."

I therefore, resolve issue 4 in favour of the Appellant that the learned trial Court was obviously in error to award the sum of N100,000.00 to the Respondent as general damages. The said award is hereby set aside,

The Issue 5 by the Appellant was whether the trial Court had properly evaluated the evidence before it before reaching its conclusion.

I believe arguments on this issue have been considered already in the course of considering the Issues 1, 2, 3 and 4. There is sufficient proof that the trial court evaluated the evidence before it before reaching its conclusion, and, where it faltered, as in the situation he reached wrong conclusions in awarding payment of Salary till retirement (without re-instating the Respondent) and the award of N100,000.00 general damages, the same have been faulted and corrected, by this Court. But the trial court's conclusion on the Appellant's power to dismiss the Respondent under paragraphs 8.4, and 8.5 of Exhibit 3 was well exercised, to the effect that was subject to the protection of the rights of the Respondent to fair hearing under section 36(1) of the Constitution of the Federal Republic of Nigeria, as amended.

On the whole, I hold that this appeal succeeds in part; that is, the award of loss of earnings to the Respondent in the sum of N12,493.00 PA, from the date of judgment until his retirement age, is hereby set aside, and in its place, guided by section 15 of the Court of Appeal Act, 2004, and Order 4 Rules 3 and 4 of the Court of Appeal Rules, I hereby order the reinstatement of the Respondent to his office and service, his appointment being one with statutory flavour.

I have already set aside the order for general damages of N100,000.00 to the Respondent.

The other issues are dismissed as I uphold the judgment of the trial Court, that the dismissal of the Respondent was null and void, having been established to be baseless and a breach of his rights of fair hearing and that he was entitled to his salaries and entitlements.

The parties shall bear their respective costs.

DALHATU ADAMU, CFR, J.C.A.: I have read in draft the lead judgment of my learned brother Ita G. Mbaba JCA in this appeal. I agree with his reasoning and conclusion in the said lead judgment that the appeal succeeds in part. I hereby set aside the order awarding the sum of N12,493.00 for his loss of earnings to the respondent. The said respondent is hereby ordered to be reinstated to his office - his appointment being one with statutory flavour. The order for general damages is hereby set aside. All other issues are dismissed and I uphold the judgment of the trial court. I abide by the order on costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.(DISSENTING): I had painstakingly studied the leading judgment of my learned brother, Mbaba, J.C.A., in this appeal, I am afraid, I find myself unable to accede to his reasoning and proposition that because the Appellant is owned by the Government of the Federation, and, that the service of the Respondent is pensionable pursuant to section 4(1) of the Statutory Corporations Pensionable Officers (Retiring Age Limit) Act, the Appellant's employees including the Respondent are statutory employees, i.e., their employments are garnished with statutory flavour.

The law had been repeatedly stated by the apex Court that the mere fact that an employer is a creation of statute or that it is a statutory body or a statutory corporation, or that the government has shares in it does not elevate its employment to one of statutory flavour, nor without more, raise the legal status of its employees over and above the normal common law master and servant relationship. Further, the fact that a person is a pensionable Federal Public Servant does not mean that his contract of employment is protected by statute. Rather, there has to be a linkage or nexus between the employee's appointment with the statute creating the employer or corporation. See cases of Iyase vs. U.B.T.H.M.B (2000) 2 NWLR Part 643 page 45; Igwilo vs. CBN (2000) 9 NWLR Part 672 page 302; U.B.T.H.M.B vs. Dawa (2001) 16 NWLR Part 739 page 424; and Olatunbosun vs. NISER (1998) 3 NWLR Part 80 page 25; and its recent decision in Power Holding Company of Nigeria Plc vs. Offoelo (2013) 4 NWLR Part 1344 page 380 in which Peter -Odili, J.S.C made reference to the case of Idoniboye -Obu vs. N.N.P.C. (2003) FWLR Part 146 page 959 at 992, (2003) 2 NWLR Part 805 at page 589 at 632 where Iguh, J.S.C., stated thus:

"Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavour include the following:

1. The employer must be a body set up by statute.

2. The stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline"

Peter-Odili J.S.C., went further to state:

"In a similar vein and in the same case of Idoniboye-Obu vs. N.N.P.C. (supra) at 1004, Niki Tobi, J.S.C cited with approval, the opinion of Karibi-Whyte, J.S.C. in Imoloame vs. W.A.E.C. (1992) 9 NWLR Part 265 303 at 317, paragraphs C-E, added another feature in these words.

"There is an employment with statutory flavour when the appointment and termination is governed by statutory provisions... it is now accepted that where the contract of service is governed by the provisions, they invest the employee with a Legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour."

From the above guides already set by this court, the legislations creating or governing the Appellant would be placed on record so as to see if the Appellant is one of those institutions or establishment that are within the ambit of statute and their activities especially in relation to employment are to be termed to be with statutory flavour or governed by those statutes. "

Now, turning to the facts giving rise to this appeal, the Respondent was engaged in the services of the Appellant via a Letter of Offer of Appointment dated the 17th March, 1978 which was later confirmed by a Letter of Confirmation of Appointment dated the 4th December, 1978. The Respondent claimed he was a public servant and that his employment is pensionable in nature and was covered by the Appellant's Company's Condition of Service. In the course of the employment, the Appellant became distrustful of the Respondent that the Respondent's employment was determined by dismissal. Then, by the Writ of Summons dated the 24th February, 1989, the Respondent initiated a proceeding against the Appellant before the High Court of Kaduna State in Suit No. KDH/KAD/373/88, and by his Amended Statement of Claim dated and filed on the 26th May, 2003, the Respondent sought the following reliefs against the Appellant:

"a) A declaration that the suspension of the Plaintiff without pay from the 7th day of September, 1987 as per the Defendant company internal memo from one M.U. Ibrahim Deputy Personal Manager is null and void as its ultra-vires (sic) and or contrary to the conditions of service governing the Plaintiffs appointment with the Defendant company.

b) A declaration that the purported dismissal of the Plaintiff as per Defendant Company (sic) Secretary (sic) letter of dismissal dated 28th day of September, 1988 back dating same to have been effective from 21/9/88 is malicious, unlawful, null and void and contrary to the conditions of service governing the Plaintiff (sic) appointment in view of the police investigative report dated the 1st day of December, 1988 exonerating the plaintiff from any involvement in the said fraudulent allegations.

a) An order of this Honourable Court compelling the Defendant Company to re-instate the Plaintiff and pay the Plaintiff his outstanding entitlements.

42. OR IN THE ALTERNATIVE, the Plaintiff claim against the Defendant in default of reliefs sought in paragraph 41 of this statement of claim, special and general damages as follows:

(a) The Plaintiff (sic) salaries and entitlements from the 7th day of September 1987 to 28th day of September 1988. 

(b) The sum of N12,493.00 per annual (sic) from the date of filling this action to the date of judgment and thereafter.

(c) Loss of earnings at the rate of N12,493.00 per annual (sic) from the date of judgment till the Plaintiff attains the age of compulsory retirement as provision for under the Defendant conditions of service.

(d) The Plaintiff further claims the sum of N150,000.00 (One Hundred and fifty thousand Naira) only as general damages, for shocks (sic) sufferings, false imprisonment and malicious publication made by the Defendant company against the Plaintiff."

The Appellant, on its part, filed a Consequentially Amended Statement of Defence of twenty eight paragraphs on the 26th May, 2003. The matter proceeded to trial. At the hearing of the case, the parties presented their respective witnesses who testified before the lower Court, and at the end of which their respective Counsel filed their written addresses. After evaluation of the facts presented before it and consideration of the issues raised by the parties, the trial Court held thus:

"In my humble view the proper thing to (sic) is to fall back (sic) exhibit 3 if the defendant still feels they no longer require the services off (sic) the plaintiff by issuing him with requisite notice or payment in lieu i.e. after paying him all his entitlement from the date of suspension which is from 7-9-87 till when he was purportedly dismissed on 28-9-1988 and then pay him all his entitlement he goes. The act and conduct of the Defendant is clearly in violation of natural justice and the condition of service binding on both parties. I therefore hold that the Plaintiff (sic) dismissal is totally wrongful as being contrary to natural justice, equity and fair hearing and I accordingly hereby so hold.

On whether the Plaintiff can be considered to be reinstated haven (sic) declared that the dismissal was wrongful, I wish to observed that the relationship between the Plaintiff and the Defendant is clearly governed by the condition of service set out in exhibit 3 which is that of employment and not that of master and servant. This is because the Defendant as rightly submitted belongs to the Federal Government 100% even though it is a company but belongs to the Federal Government and as such governed by statutory flavour. The Plaintiff cannot just be dismissed like that of master and servant engagement.

There are procedures laid down in relieving its appointment and in my view that has not been done at all. The condition of service is clearly governed by exhibit 3 between the Plaintiff and the defendant. I make no order for reinstatement.

On whether its (sic) proper to order in the alternative for the Plaintiff to be paid special and general damages if its (sic) found that his dismissal was improper. 

The Plaintiff was employed on 17-3-1978 vide exhibit 1 and was purportedly dismissed on 28-9-1988 i.e clearly to (sic) years from the date he assumes (sic) duty, and haven declared that the suspension and dismissal of the Plaintiff were all wrongful, equity demands that he'll be compensated.

The Plaintiff was suspended on 7-9-87 when salaries of Plaintiff was increased in 1988 which the company of the Defendant duly approved the implementation dated Oct 1988. This can be found in Court exhibit 17 and while the Plaintiff was promoted to grade level 12:1 vide exhibit 23 and looking at exhibit 17. It would appear that the Plaintiff (sic) salaries PA stood at N12,493 = PA based on the increased salaries which was from 7-9-87 when the Plaintiff was suspended and subsequently dismissed.

I have earlier held that the Plaintiff s suspension without pay was wrongful as he ought to have been placed on 1/2 pay which would have been in my view N6,246.50 from 7-9-87 - 28-9-88.

Having held that the suspension was wrongful and equally wrongful was the dismissal. I accordingly hereby declare as follows:

a. That the Defendant is hereby directed to pay as special damages to the Plaintiff consisting of:

1. Half salary of the enhanced salary of the Plaintiff which was N6,246.50 from 7-9-87 - 28-9-88.

2. The sum of N12,493.00 PA from Oct, 1988 when this suit was filed till today being 29-11-04 i.e. for the period of 16 years N199,888.00 being full payment of the salaries of the Plaintiff at N12,493.00

3. I also order that the Plaintiff be paid his loss of earning from today in the same rate of N12,493.00 PA until he reaches the age of retirement.

4. I equally order for the defendant to pay the Plaintiff general damages in the sum of N100,000 = for all the suffering, shocks, (sic) false and malicious publication which he suffered as a result of the defendant's action." 

The Appellant was distraught with the pronouncements of the lower Court that it filed an appeal against the said judgment by a Notice of Appeal dated the 15th December, 2004. It was hinged on five grounds of appeal. The said ground of appeal which I feel compelled to reproduce without their particulars read as follows:

"GROUND ONE:

The learned trial Judge erred in law when he held that the nature of employment was not one of master servant. 

GROUND TWO:

The learned trial Judge erred in law when he held that the dismissal of the Respondent from the services of the Appellant was wrongful.

GROUND THREE:

The learned trial Judge erred in law when after holding that there can be no order of reinstatement into the employment went ahead to order payment of salary to the Respondent uptil his retirement age and awarded damages for loss of earnings and at the same time awarded general damages to the Respondent.

GROUND FOUR:

The judgment is against the weight of evidence.

After the compilation and transmission of the record of appeal, the Appellant filed its Briefs of Argument in consonance with the Rules of this Court. Five issues were propounded by the Appellant in its Brief of 

Argument for determination by this Court. They are:

"1. Whether the trial Court was right when he held that the nature of relationship between the Appellant and the Respondent is not of master/servant relationship.

2. Whether the dismissal of the employment of the Respondent was wrongful.

3. Whether the trial Court was right when he ordered payment of salary to the Respondent up till his retirement age, after holding that there could be order for reinstatement.

4. Whether the proper principles of law in awarding damages in contract of employment were properly applied by the trial Court. 

5. Whether the trial Court properly evaluated the evidence before him it (sic) reaching its conclusions."

The Respondent did not comply with the Rules, and; therefore, failed to file his Brief of Argument. Then, as result of the application on notice made by the Appellant the appeal was set down for hearing on the Appellant's Brief of Argument alone by the order of this Court made on 29/3/12.

The first issue presented by the Appellant is "Whether the trial Court was right when it held that the nature of relationship between the Appellant and Respondent is not that of master/servant. Learned Counsel for the Appellant, Oladipo Tolani Esq; strongly argued that the relationship between the Appellant and the Respondent is purely master and servant. He stressed that the Respondent is a Limited Liability Company and was not set up by any statute, the condition of service applicable is as set out in Exhibit 3. Learned Counsel contended that the fact an organisation is owned by the Federal Government does not mean that the condition of service of its employees is of a special character i.e. ruling out master/servant relationship. He submitted that unless the condition of service is found in a statute, it is wrong as held by the lower Court to state that the relationship is statutory. He referenced the cases of Olaniyan vs. University of Lagos (1985) 12 NWLR Part 9 page 599; and NEPA vs. Isievore (1997) 7 NWLR Part 511 page 135 at 147; and submitted that for an employment to be statutory in nature, it must be established that the, company was set up by a statute and that the condition and terms of employment including that of dismissal and termination is set out in the statute setting up or establishing the company. He further submitted that no evidence was led to establish that the Appellant was set up by any statute and none was referred to during the trial or address. He urged this Court to hold that the relationship between the parties is mere master/servant and cannot be statutory as held by the lower Court.

On issue No. 2, i.e., whether the dismissal of the Respondent's employment by the Appellant is wrongful?, learned Counsel made reference to paragraph 4(a) of the Respondent's Statement of Claim, paragraphs 2, 10 -20 of the Appellant's Statement of Defence, Exhibits 3, 11A & 11B, 16 and 17, P.W.1's testimony at page 30 of the record, page 16, paragraph 3 of Exhibit 3, paragraph 8.4, page 38, page 37 of the record, Exhibit 20 page 10, evidence of P.W.3, page 44 of the record, the testimony of the defence witness, his identification and how it was discovered that there was inclusion of ghost workers in the pay slip, the defendant's witnesses identification of the auditors' report in Exhibits 11A, 11B and 12 and how three ghost workers were paid in Exhibit 11A and five persons' salaries were duplicated. He stressed that in Exhibit 11B six ghost workers were identified, he touched on the job description of the Respondent and his duties set out at page 10. He specified how Exhibit 20 amounts to gross misconduct and that paragraph 8.4 gives penalty for gross misconduct which may lead to dismissal. He stressed that under the condition of service, a staff summarily dismissed is not entitled to any notice, that under paragraph 3.36, failure to observe the conditions amounts to serious misconduct. Counsel, then, argued that the witness was not cross-examined on these salient points, and that in spite of the admission by the Respondent that ghost workers were paid salaries and there were cases of overpayments, the lower Court still held that the dismissal was wrongful. Learned Counsel stressed that during that period, the Respondent was the principal accountant in charge of Salaries and Wages, and, his employment was regulated by Exhibit 3, while his job description is as found in Exhibit 20.

He further referred to page 10 of Exhibit 20, paragraph 8.5 of Exhibit 3, the cases of A.C.B. Plc vs. Nbisike (19951 8 NWLR Part 416 page 725 at 745 paragraphs E - H and Ajayi vs. Texaco Nig. Ltd (1987) 3 NWLR Part 62 page 571 at 594, per Aniagolu, J.S.C. and submitted that in view of the admission of the Respondent at page 38 of the record that he had a job description and that contrary to the description at page 10 of the Exhibit, he failed to cross-check the Wages Sheet to ensure accuracy, and, his admission that his failure to ensure that payment is made to only deserving staff, he has derelicted in the performance of his duties and breached the rules and regulations governing his assignment as the Principal Accountant in charge of Salaries and Wages, therefore, the Appellant was justified in summarily dismissing the Respondent as provided under paragraph 8.5 of Exhibit 3.

Regarding issues Nos.3 and 4 which were argued together by Counsel, that is to say, 'whether the trial Court was right when he ordered payment of salaries to the Respondent up to his retirement age after holding that there could be no order for reinstatement,' and, 'whether the proper principles of law in awarding damages in contract or employment were properly applied by the trial Court,' learned Counsel vehemently argued that the relationship between the parties is without statutory flavour. He submitted that if the employment had been with statutory flavour, the dismissal would have been wrongful, null and void and the Respondent would have been entitled to be reinstated. He referred to Olaniyan vs. Unilag (supra) in support. He also referred to his argument in respect of issue No. 1 which he said is much appropriate at this juncture. He further made reference to the cases of Olatobosun vs. NISER (1988) 3 NWLR Part 80 page 25 at 55 paragraph H and 56 paragraph C, Adeniran vs. NEPA (2002) 14 NWLR Part 786 page 30 at 48 paragraphs B - E and Olatobosun vs NISER (supra) at page 86 paragraph H and 56 paragraph A and submitted that the measure of damages for wrongful dismissal is prima facie the amount the employee would have earned if the contract of employment had been properly determined. He contended that in the contract document in the instant matter, i.e. Exhibit 3, the period of notice required for all grades of staff is one month notice, therefore, assuming the dismissal had been held to be wrongful, the measure of damages would have been limited to the amount agreed by the parties. All he would get is the amount he would have earned i.e., payment of all his salaries and entitlement up till the date of dismissal and thereafter his salary in lieu of notice. He stressed that all the Respondent is entitled to is his one month salary in lieu of notice.

He pointedly argued that the award of N100,000 general damages in a contract of employment is contrary to known principles of law as established by the Supreme Court in Olatobosun vs. NISER (supra). He, therefore, urged this Court to hold that the trial Court was wrong to have ordered payment of salary up to retirement age to the Respondent, and, that all known principles of law guiding award of damages in contract of employment were improperly applied by the lower Court. He then persuaded that issues 3 and 4 be resolved in favour of the Appellant.

Tendering his argument in respect of issue No.5, which queried 'whether the trial Court properly evaluated the evidence before him in reaching his conclusion, learned Counsel referred to the judgment of the lower Court at pages 77 - 86 of the record and argued that no evaluation of the evidence adduced before the lower Court was made by it. He contended that no attempt was made by the lower Court to make any specific findings on the assertions of the Respondent at paragraphs 11- 15 of its Statement of Defence at page 20 of the record to the effect that the Respondent was dismissed for dereliction of duty which occasioned financial losses. He turned to Exhibit 10, the letter of dismissal, Exhibit 3 paragraph 8 sub-paragraphs 4 and 5, and again, the Appellant's averments at paragraphs 11, 12 and 13 of its Statement of Defence and submitted that while the Respondent claimed and attempted to lead evidence on his duties and responsibilities with respect to payment of salaries and wages, Exhibit 20 is totally at variance with his oral testimony and the said Exhibit can never amount to any oral evidence to explain away its content. He relied on section 132(1) of the Evidence Act and the case of Okonkwo vs. C.C.B. (1987) 6 NWLR Part 508 page 48 at 62, paragraph E - F., in support. He finally submitted that it is the primary duty and function of the trial Court to evaluate evidence adduced by both parties. He referred to Dosunmu vs. Dora (2002) 12 NWLR Part 783 page 1 at 32 paragraph G - paragraph A; and Okulate vs. Awosanya (2000) 2 NWLR Part 646 page 530; in support, and urged this Court to allow the appeal.

I must observe that the determinant issue in this appeal is whether the employment of the Respondent was governed by any statute or whether it enjoyed statutory flavour. It is trite that if any question arises with respect to the contract entered into by the parties, the terms in any document which constitute the contract are invariably, the guide to its interpretation. So, in its construction of contracts, it is the duty of the Court not to look at a contract in a narrow manner for its interpretation. The entire documents must be looked into and in conjunction with the dealings of the parties to know what they meant.

It should be noted that contracts of employment fall into three categories;

a) Master and servant, relationship;

b) Where a servant holds an office at the pleasure of master; and

c) Employment that is governed by statute.

A contract is said to have statutory flavour where the contractual relationship between the employer and the employee is governed by a statute or regulations derived from statutes. See NEPA vs. Adesaaji (2002) 17 NWLR Part 797 page 578. Therefore, where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made thereunder, it is said to be a contract protected by statute and any person in that employment enjoys a special legal status over and above the ordinary, common law master and servant relationship. In matters of termination or discipline under such a contract, the procedure laid down in the applicable statute or regulations made thereunder must be religiously followed as any breach would render the exercise null and void.

So, the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or of the relevant statute. The duty so to construe is the exclusive preserve of the Courts. See Iloabachie vs. Phillips (2002) 14 NWLR Part 787 page 264. The onus lies strictly on the Plaintiff i.e., the employee to supply the Court with facts tending to establish that his said appointment with the Defendant was governed by statute. The court is not entitled to look outside the contract of service as to the terms and conditions. They must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract as the case may be. 

It is well established that a court has no jurisdiction to interpret or construe contractual documents more favourably to a party outside the terms and conditions provided in the documents. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See Daodu vs. U.B.A Plc (2004) 9 NWLR Part 878 page 276 at 279, per Adekeye, J.C.A., (as she then was).

Definitely, by the above principle, the answer to the question whether the Respondent's employment has statutory flavour will, only be gathered from the contents of his Letter of Offer of Appointment and Confirmation of Appointment tendered as Exhibits 1 and 2 which I feel expedient to reproduce hereunder thus:

"Exhibit '1'

P.O. BOX 254, KADUNA

KDH/KAD/3.73/88                

PHONE: 23386-8                NEW NIGERIAN NEWSPAPERS LIMITED    

CABLES: NORNEWS, KADUNA

Telex: 71120 NEWNIG NG

17th March, 1978

Mr. Felix A. Atoyebi,                   

Accounts Department,

Defence Industries Corporation,

  P.M.B. 2100,

Kaduna.

Dear Sir,

OFFER OF APPOINTMENT

We refer to our Personnel Manager's letter of 30th January, 1978 and our subsequent interview of 16th February, 1978. After very careful consideration, the Management has decided to offer you the post of Accounting Assistant on Grade Level 07 Step 5 - N3,012 per annum.

Your appointment is subject to the company's normal probationary period of six months, during which your conduct and performance will be observed by the Management for the purpose of assessing your suitability for the duties assigned to you. Your appointment may thereafter be confirmed and re-designated Assistant Accountant on Grade Level 08 Step 1 - N3,264 per annum.

This offer is subject to a satisfactory medical report on you being submitted by a medical practitioner chosen by the Company. You may only assume duty when you are certified by the doctor as being medically fit.

Please signify your acceptance of this offer by signing and returning to the undersigned, the duplicate copy of this letter, indicating the date you wish to assume duty.

Yours faithfully,

Mathew M. Sule

Ag. Company Secretary

RECTORS: Chief S.O. Adebo (Chairman). Theresa Bowyer, Muhammadu Ibrahim, Shu'aibu Makarfi, Pius Okigbo, Josiah Sunday, Bawa Shemu, Nwobidike Nwanodi, Ade Yusuf, Turi Muhammadu (Manager)

"Exhibit '2'

P.O. BOX 254, KADUNA

KDH/KAD/3.73/88                

PHONE: 23386-8                NEW NIGERIAN NEWSPAPERS LIMITED    

CABLES: NORNEWS, KADUNA

Telex: 71120 NEWNIG NG

4th December, 1978

Mr. Felix A. Atoyebi,                   

Accounts Department,

New Nigerian Newspapers Limited,

Kaduna.

Dear Sir,

CONFIRMATION OF APPOINTMENT

I am pleased to inform you that your appointment as Assistant Accountant is hereby confirmed on salary Grade Level 08 Step 1 N3,264 per annum with effort from 1st December, 1978.

You will also be entitled to the following fringe benefits:-

(a) Free medical facilities for self, your wife and children 

(b) Housing allowance of N960 per annum

(c) Motor Vehicle allowance of N960 per annum

(d) Motor vehicle advance of N4,800.

On behalf of the management, accept my congratulations.

Yours faithfully,

Wada Abubakar

Company Secretary

RECTORS: Chief S.O. Adebo (Chairman). Theresa Bowyer, Muhammadu Ibrahim, Shu'aibu Makarfi, Pius Okigbo, Josiah Sunday, Bawa Shemu, Nwobidike Nwanodi, Ade Yusuf, Turi Muhammadu (Manager)

It is instructive to note that there was no proof before the lower Court that the Appellant was established by an Act of the National Assembly. The contents of Exhibits 1 and 2, being the Letters of offer of Appointment and Confirmation of Appointment of the Respondent are very clear and unambiguous. The words are quite plain that no attempt should be made to construe them otherwise. There was no mention either in Exhibit 1 or Exhibit 2 that the Respondent's appointment was regulated by any statute or is subject to any. It was never stated that the Respondent's appointment is governed or subject to the provisions of any law or statute or to any law regulating or governing the conditions of his appointment. No reference whatsoever was made to any law or statute therein. It is clear in Exhibits 1 and 2 that the appointment of the Respondent in this appeal was not circumscribed or limited by the provisions of any law or statute. The ingredients of statutorily protected employment are starkly missing in the Respondent's Letter of Appointment. Even in Exhibit '3' titled 'Condition of Service' of the Appellant Company, there was no reference whatsoever to any law governing the Conditions of Service of the Appellant's employees. It is instructive to note that there was no proof before the lower Court that the Appellant was established by an Act of the National Assembly. Where all these are conspicuously absent in the documents containing the contractual terms of the employment of the Respondent, it would be unwise for anyone to jump to the conclusion or assume that the employment of the Respondent herein is governed by statute or has statutory colouration. The Appellant was never proven to be a creation of any Federal Statute or any law before the lower Court. There was, also, no proof that the discipline and removal of the Respondent was regulated by any statute, notwithstanding the fact that the Pensions Act was stated to have been applicable to the Appellant for the purposes of computing or calculating the pension entitlements of its employees.

It seems the lower Court somewhat embroiled itself in the confusion of whether the relationship between the parties was ordinary master and servant relationship or statutory employment. The lower Court said the relationship is that of contract of employment and in the same breath stated it was not that of Master and Servant. One could easily perceive the dilemma or bewilderment of the lower Court, by not being able to confirm the type of employment agreement the parties entered into. That, definitely manifested in the order it made. This, also, explained the reason why the lower Court was reluctant to order for the reinstatement of the Respondent. In the Respondent's testimony, he said he was given the terms and conditions of his appointment which he said bore the Appellant's letterhead. The same was tendered as Exhibit '3'. It was not shown that those conditions of service are subject to any Public and Civil Service Rules in terms of the discipline and termination or dismissal of the Respondent.

It ought to be mentioned that it was not specially pleaded by the Respondent that his appointment was regulated or governed by any statute nor did he give that in evidence. As I earlier opined, the fact he pleaded that his employment is pensionable and is regulated by the Federal Government can never metamorphose his employment to statutory employment. I would, therefore, reiterate the long enthroned principle of law and my earlier expression at pages 2 and 3 of this judgment that the fact an employer is a Statutory body does not mean that the condition of service of its employment must be presumed to be of any special character. It does not mean that the status of master and servant is no longer in existent or that the determination of the employment must necessarily have the same procedure as one with statutory flavour. It must be stated that there was no finding of fact based on the construction of the wording of Exhibits 1 and 2, by the lower Court, i.e., the Respondent's Letters of Employment that the Respondent's employment was regulated by any statute or regulations made pursuant to any statute establishing the Appellant. It was never stated in Exhibits 1 and 2 or even 3 that the Respondent's employment was governed by the provisions of any law or statute. No section of any Law was mentioned therein, nor was the employment made subject to any Law. Before such employment can be said to have enjoyed statutory flavour, the Act governing the employment and the regulations made pursuant to the said Act must be expressly incorporated into the contract existing between the parties. It is such incorporation that gives rise to special treatment by way of statutory or legal flavour in the event of the Master deciding unilaterally to terminate the appointment of servant: See Alhassan vs. A.B.U., Zaria (2011) NWLR Part 1259 page 417. For further elucidation, it is stated that a servant with a legal or special status covers an employee whose employment is governed by the provisions of the Constitution or by the Civil Service Rules made pursuant to the Constitution. All these gravitate to, establishing the fact that the Respondent's employment with the Appellant was purely master and servant relationship since Exhibits 1, 2 and 3 are bereft of any of the ingredients or qualities that would have elevated him to the status of statutory employee. Therefore, in the light of the above, I am of the profound view that the lower Court was in grave error when it stated that:

"The relationship between the Plaintiff and the Defendant is clearly governed by the condition of service set out in Exhibit 3 which is that of employment and not that of master and servant. This is because the Defendant as rightly submitted belongs to the Federal Government 100% even though it is a company but belongs to the Federal Government and as such governed by statutory flavour. The Plaintiff cannot just be dismissed like that of master and servant engagement."

The employment of the Respondent as per Exhibits 1, 2 and 3 in the Appellant's organization was not statutory employment nor was it regulated by the Civil or Public Service Rules. Furthermore, there is complete lack of proof that the Appellant was established by any Law or Act. Accordingly, I hereby resolve issue No. 1 in favour of the Appellant. 

I shall now proceed to consider issue No. 2. For proper dissection of the issue, it ought to be stated that the procedure for determination of the employment of the staff of the Appellant, including the Respondent herein, are Contained at paragraphs 8.1, 8.2, 8.3, 8.4, 8.5 and 8.6 at pages 37, 38 and 39 of Exhibit 3. Regarding the suspension of the Respondent, Exhibit 3 paragraph 8.6 provides thus: 

"Suspensions

Employee may, on the approval of the Board or Chief Executive (as the case may be) be suspended from duty for breach of discipline or serious misconduct or suspicion of serious misdemeanour. The employee concerned shall be informed in writing of the suspension notice by the Company Secretary or Asst. General Manager, Lagos.

(a) The suspension shall be with or without pay in all cases but the Period shall not exceed one month for breach of discipline. During this period, the Board or the Management will look into the circumstances leading to the suspension with a view to taking appropriate final action against the individual concerned.

(b) In cases of serious misdemeanour or criminal offence, an employee shall be suspended without pay until the determination of the case against him."

It follows, therefore, that in serious misconduct, an employee of the Appellant can be suspended without pay. Then, on dismissal of employee, paragraph 8.4 of Exhibit 3 states:

"Summary Dismissal

The Management may summarily dismiss any employee found guilty of serious misconduct vide 8.5. In such cases, no notice will be given. 

POLICY/DEFINITION (SERIOUS MISCONDUCT)

The following examples, which are by no means exhaustive, shall constitute cases of serious misconduct;

(a) Sleeping on duty

(b) Drunkenness on duty

(c) Stealing, fraud, bribery

(d) Gross dereliction of duty

(e) Gambling in the office

(f) Smoking in a prohibited area

(g) Use of physical violence in the Company's premises

(h) Gross insubordination

(i) Gross misuse of machinery and equipment

(j) Forgery and falsifying the books of the Company

(k) Complete disregard for rules and regulations

(l) Driving a company vehicle when not in possession of a valid driving licence and or when not authorized.

(m) Carrying passengers in a company vehicle not licensed to carry passengers 

(n) Willful damage to company property"

However, Exhibit 5 which conveyed to the Respondent the suspension stated thus:

EXH "5"

Internal Memo                Date....7/9/87

From: Deputy Personnel Manager           To: Mr. Felix Atoyebi 

Accounts Department

SUSPENSION

Reference to your involvement in the fraud case now under police investigation, I am directed to suspend you from the services of the company until the case is dispose off.

The suspension takes effect from 7th September, 1987 without pay.

M.B. Ibrahim.

It is clear in Exhibit 5 that no mention whatsoever was made about suspending the Respondent without pay even though paragraphs 8.6 authorized that.  

Furthermore, on issue of dismissal of the Respondent it was expressly stated at paragraph 8.4 of Exhibit 3, that for the employee to be summarily dismissed, he or she must have been found guilty of serious misconduct. In the instant case, the Respondent stated in his evidence, that in December, 1987, the Police told him he had been cleared of the allegations of fraud against him. The letter by the Nigerian Police exonerating him from all allegations of criminal conspiracy, forgery and theft levelled against him was tendered as Exhibit 6.

However, the Appellant, on 28/9/1988, sent Exhibit 10 to the Respondent dismissing him from its employment. It is clear in the entire evidence proffered before the lower Court that there was no suggestion of the Respondent having been properly tried and found guilty of any of the offences listed in paragraph 8.5 of Exhibit 3 by any Court of law before Exhibit 10 was issued to him. He was, also, not given the opportunity to defend himself before any panel set-up for investigation of the same. These were borne out in the testimonies of P.W.1, P.W.3 and D.W.1.

Be that as it may, evidence abound that non-existent workers were being paid by the Appellant. The name of one Shuaibu Ali, a nonexistent staff of the Appellant appeared in the payroll of the Appellant in August, 1987. The Respondent, as the Appellant's Principal Accountant in charge of Salaries and Wages, acknowledged that the said name appeared in the payroll of the previous month. He further stated that it was one Godwin Nze, a Clerk in charge of Salaries and Allowances of the Editorial Department that was responsible for inclusion of the said ghost worker's name in the payroll. However, with further probing, the Respondent admitted that Mr. Nze was a Clerk directly serving under him.

I would, refer to Arinze vs. F.B.N. Ltd (2004) 12 NWLR Part 888, page 663, where Belgore, J.S.C., (as he then was) stated that in statutory employment, as in private employment, the employer can dismiss in all cases of gross misconduct. The case of Yusuf vs. Union Bank of Nig. Ltd (1996) 6 NWLR Part 457 page 632 was referred to therein, where Wali, J.S.C., expressed at pages 214 - 215 thus:

"it is not necessary, nor is it a requirement under the common law, that the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality... To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge.

It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him."

Onu, J.S.C., further stated that since the Appellant has been confronted with the accusations and he was given opportunity to explain and the explanation showed that he had no satisfactory answer to the accusation and, on the authority of Yusuf vs. Union Bank of Nigeria Ltd. (supra); Nwobosi vs. A.C.B. Ltd (1995) 6 NWLR Part 404 page 658 at 586, it was not necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him by summarily dismissing him where the Appellant's misconduct undermined the relationship of confidence which should exist between the Appellant and his employer.

It is also necessary to note the observations of the Supreme Court in Olarewaju vs. Afribank (Nig) Plc. (2001) 13 NWLR Part 731- page 691, where Katsina Alu, J.S.C., (as he then was) expressed at pages 708 at 714 as follows:

where, therefore, an employee has been found guilty by a disciplinary committee of any of the gross-misconducts highlighted above, the master has a choice either to exercise his or its discretion in favour of prosecuting the erring servant or dismissing him summarily as in the instant case.

"The law regarding master and servant is not in doubt. Under this class of employment there cannot be specific performance of a contract of service. The master has the power to terminate the contract with his servant at any time and for any reason or for none. However, if the master does terminate the contract in a manner not warranted or provided by the contract, he must pay damages for breach of contract. 

What this means is this. In this class of cases an officer's appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly an officer in this class can lawfully be dismissed without observing the principles of natural justice. "

Further, in Texaco Nigeria Plc vs. Alfred G. Adegbile Kehinde (2001) 6 NWLR Part 708 Page 224 at 228-229, Onnoghen J.C.A (as he then was) stated that whether the dismissal is lawful or unlawful, in a purely master and servant situation it has brought the relationship to an end. The relationship was brought to an end, and too, the Court cannot force a wiling servant on an unwilling master.

In the instant matter, there was evidence that the Respondent was confronted with the allegations even though he did not appear before any panel. He acknowledged that his attention was drawn to the report of the Chief Internal Auditor of the Appellant discovering the name of the said Shuaibu Ali, and that he took the said Godwin Nze to the Chief Accountant's Office. It was discovered that it was the picture of Godwin Nze working directly under the Respondent that was in the Ledger of the Bank. The said Godwin Nze later escaped from the office of the Chief Internal Auditor. It is clear from his evidence that a staff working directly under him was committing fraud and he could not detect it. As stated in Yusuf vs. Union Bank of Nigeria Ltd, (supra) the Respondent's misconduct, or negligence, complacence/inadvertence did really question the relationship of confidence that existed between him and the Appellant. I am of the candid opinion that the summary dismissal issued to the Respondent was not unlawful since the Appellant complied with the condition laid down in Exhibit 3 by summarily dismissing him and bringing the master and servant relationship to an end. In the present case, the Respondent's employment was not proved to have had statutory flavour. So, the request for the declaration that his purported dismissal is malicious, unlawful, null and void and contrary to his conditions of service cannot be granted by this Court and it is hereby refused. I must observe that since there is no requirement for his guilt to have been proven before any Court before he could be issued with a letter of dismissal, the Respondent's dismissal having been effected in terms of the conditions of service, therefore, does not appear to me unlawful. I hereby resolve issue No. 2 in favour of the Appellant.

In the instant case, since the Plaintiff has failed to establish the breach committed by the Defendant by evidence, his case is bound to fail because it is the breach that will give rise to the damages suffered.

Even though I am of the profound view that no breach was proven i.e. that the Respondent was lawfully dismissed based on the procedure mentioned in Exhibit 3, I think it appropriate to still consider the question of damages in case I were wrong in my findings that the Plaintiff totally failed to prove that he was a statutory employee and was therefore, unlawfully dismissed.

With regard to issues 3, 4 and 5 which I am inclined to determine together, it is evident by the letter of dismissal served on the Respondent, that his employment had been brought to an end. Being an ordinary master and servant relationship in my view, the Respondent's remedy lies in the award of damages, and not on reinstatement.

A termination of a contract of service, whether lawful or unlawful, brings to an end the relationship of master and servant.

A servant would only be paid for the period he served his master and, if he is dismissed, all he gets as damages is the amount he would have earned if his appointment had been properly determined. The servant is to be paid all his salaries and entitlements up to the date of his dismissal. Thereafter, he is to be paid a month's, two months, three months' salary and other entitlements in lieu of notice depending on the terms and conditions of service between the parties. Where no period of notice is stipulated or agreed upon by the parties, the law stipulates that he be given reasonable notice.

See Isong Udofia Umoh vs. Industrial Training Governing Council (2001) 4 NWLR Part 703 page 281 at 300-301, per Edozie J.C.A (as he then was), in which the Supreme Court case of Professor Dupe Olatunbosun vs. NISER Council (1988) 3 NWLR Part 80 page 25, was referred to and in which Oputa J.S.C cited with approval the dictum of Harman L. J. In Denmark Production Ltd. vs. Boscobel Production Ltd. (1968) 1 All ER 513 at p.524.

In a contract of employment which is of the ordinary nature other than one with statutory-flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period's salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end. The measure of damages, therefore, will be the salary which the employee would have earned during the period of notice. See also McGregor on Damages, 17th Edition at page 937 paragraphs 28-002 and 28-003.

Also, in Ibama vs. S.P.D.C (Nig) Ltd (2005) 17 NWLR Part 954 page 364, Onnoghen J.S.C., expressed that in cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master behavior is wrong. For his wrongful act, he is only liable in damages and nothing more.

With regard to the Respondent's relied for No. 1, i.e., on his suspension, it is my consider view that the claim is unfounded and unproven since Article 8.6 (a) (b) of Exhibits 3 authorized suspension of the Appellant's employee without pay in cases of serious misdemeanor or criminal offence until the determination of the case against him. There was evidence of ghost worker(s) being on the payroll of the Appellant. According to the Respondent, one Godwin Nze, working directly under him was the perpetrator of that fraud so, there was reasonable ground for the Appellant to believe that crime was being perpetuated in the very Department the Respondent was in charge of. Given my aforementioned reasons, I hereby refuse relief No. 2. It is also important to note that the Respondent was merely quarrelling with back-dating the effective date of his purported dismissal to 21/9/99 when the letter itself is dated 28/9/88. In any case, the Respondent was found wanting in his duties.

Turning to the reliefs claimed by the Plaintiff, it is of great necessity to state at this juncture that it is only in employments under statute or which have statutory flavour that a dismissal can be said to be unlawful, ultra vires, null and void and of no effect, that the purported dismissal was not done by the correct officer designated to do the termination or dismissal, or that the correct procedure stipulated in the enabling statute was not followed. In all other cases which have no statutory flavour, all the Court can say is that the dismissal is wrongful. See CCB (Nig) Ltd vs. Okonkwo (2001) 5 NWLR Part 735 page 114 at 118 ration 2.

A dismissal is "wrongful" when an employer did not follow a laid down procedure in dismissing an employee. A dismissal is "null and void" when an employee is dismissed from his employment by a body other than his employer or the person who has power to dismiss him. 

Where an employer is found to have been wrongfully dismissed, the dismissal is complete and it cannot be held that the employee was still in the employment of his employer. On the other hand, where the dismissal is invalid or void, as for instance where it is purportedly done by a person who does not have the power to dismiss, there is no dismissal. See Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR Part 674 page 25 at 28 ratios 3 and 4.

So, on damages recoverable for wrongful termination of employment, the remedy available to an employee who had been dismissed or terminated wrongfully is an action for damages and the normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. That is the quantum of damages and the Court would not award general damages. The damages may also include an assessment of other benefits which the dismissed employee would have earned from the continuation of his employment; for example, the value of boarding and lodging or of rent or of free house. But the employee cannot claim for loss of expected benefits if those were benefits which the employer was not contractually bound to give. See Ogbaji vs. Arewa Textiles Plc (2000) 11 NWLR Part 678 page 322 at 325 ration 5.

As for the special and general damages claimed for unpaid services and dismissal for shocks, sufferings, false imprisonment and malicious publication, the cases cited above clearly established that general damages cannot be awarded in cases of wrongful termination of employment. So, the issue of award of general damages in the instant case does not arise and it is hereby ruled out. By Exhibit 10, the Respondent's employment was brought to an end on the 28th September, 1988.

I must observe that the Respondent, did not in his pleading aver the exact sum being claimed by him. He merely stated the sum of N12,493.00 per annum. Unfortunately, no evidence was adduced before the lower Court to establish the total sum being claimed by the Respondent. I must remark that it was the duty of the Respondent to have computed the said sum from the said 7 /9/1987 to 28/9/1988 and, this, he completely failed to do. 

In the case of Dumez vs. Ogboli, it was held per Lewis, J.S.C, that; "it is axiomatic that special damages must be strictly proved and unlike general damages if the Plaintiff establishes in principle his legal entitlement to them, a trial judge must make his own assessment of the quantum of such and on appeal to this Court such general damages will only be altered if they were shown to be either manifestly too low or awarded on a wrong principle. So far as special damages are concerned, a trial judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded, just as a trial Judge when for instance he is assessing compensation to be paid for land compulsorily acquired must do, as we indicated in the Governor of Mid-Western Province & Ors. vs. Eluaka & Ors. S.C.181/67 (unreported) of the 23rd of October, 1970..... "pages 204 -205."

So, it would be improper for the Court without empirical evidence by the Plaintiff to make award based on the figure stated in the particulars of claim of the Plaintiff. The Plaintiff ought to have pleaded and proved the exact amount he ought to have earned between 7/9/87 and 28/9/88.

I am afraid, all the claims sought by the Respondent in the alternative in this matter, woefully failed as they do not fall within the scope of damages awardable to employees whose employment were not unlawfully or unwrongfully terminated or dismissed. He is not entitled to any of the special damages awarded to him by the trial Court nor to the general damages of N100,000 he sought for.

He would have been entitled to only damages if his employment was found to have been wrongfully terminated, i.e. to the amount he would have earned within the period but, not to reinstatement as ordered in the leading judgment of this Court. Accordingly, this appeal is hereby allowed. The judgment of the lower Court in Suit No. KDG/KAD/373/88 awarding thus:

1. Half salary of the enhanced salary of the Plaintiff which was N6,246.50 from 7-9-87- - 28-9-88

2. The sum of N12,493,00PA from Oct, 1988 when this suit was filed till today being 29-11-94 i.e. for the period of 16 years = N199,888.00 being full payment of the salaries of the Plaintiff at N12,493.00

3. I also order that the plaintiff be paid his loss of earning from today in the same rate of N12,493.00PA until he reaches the age of retirement.

4. I equally order for the defendant to pay the Plaintiff general damages in the sum of N100.000 = for all the suffering, shocks, false and malicious publication which he suffered as a result of the defendant's action. 

is hereby set aside by me. I make no order as to costs. 

 

     Appearances       

Mas'ud Alabelewe Esq., holding the brief of Oladipo Talani Esq.

For the Appelants

       

Unrepresented

For the Respondents