THE EXECUTIVE SECRETARY(FAMILY PLANNING COUNCIL OF NIGERIA) (APPELLANT)

v.

MRS AJAYI-OBE (RESPONDENT)

(1975) All N.L.R. 88

Division: Supreme Court

Date of Judgment: 13th March, 1975

Case Number:

Before: Elias, c.j.n., Fatayi-Williams and Irikefe, JJ.S.C.

APPEAL from the High Court of Lagos State.

The plaintiff/respondent commenced proceedings in the Lagos High Court claiming against the defendant, an injunction to restrain him from committing a breach of their contract of employment with her. The Family Planning Council of Nigeria advertised the Post of National Clinic Administrator in the Daily Times, the plaintiff was duly interviewed by a panel of the Council which decided to employ her.

The Chairman wrote a letter to the defendant, Secretary to Council requesting him to make an offer to the plaintiff, but the defendant ignored the instruction. Meanwhile the Chairman had sent the plaintiff a copy of his letter to the Secretary.

The trial Judge found for the plaintiff holding that there was a contract between the Council and the plaintiff, and that an injunction lay to the Council's Secretary. On appeal to the Supreme Court.

HELD:

(1)     That for a contract to be valid in law, there must have been a definite offer by the offeror and a definite acceptance by the offeree.

(2)     That the Chairman's copy of his letter to the Council's Secretary sent to the plaintiff did not amount to an offer by the Council, as the Chairman was not the appropriate channel of communication between the Council and members of the public and also because the Chairman was not expressly authorised by the Council to make any offer to the plaintiff;

(3)     Hence no contract existed between plaintiff and the Council.

(4)     That in the absence of a contract between them, plaintiff's claim for an injunction must fail;

(5)     That the suit against the defendant was misconceived and that the Council should have been sued together with the Secretary as co-defendant, if necessary. Appeal allowed.

Cases referred to:

Powell v. Lee (1908) 99 LT 284.

Rooke v. Dawson [1895] 1 Ch. 480.

APPEAL from the High Court, Lagos.

Suit No. S.C. 128/1974.

Mr R. O. A. Akinjide (with him Dr Hamed Kusamoh) for the Appellant.

Mr S. M. Olakunri for the Respondent.

ELIAS C.J.N. (Delivering the Judgment of the court)-The plaintiff claimed in Suit No. LD/627/72 an injunction restraining the defendant, its servants or agents from committing a breach of their Contract of Employment with the plaintiff. Adedipe, J., gave judgment in favour of the plaintiff in the High Court of Lagos State on March 23, 1973.

The facts may be stated briefly as follows. The plaintiff was interviewed by a panel of the Family Planning Council of Nigeria on March 28, 1972. In a letter dated March 29, 1972, the Chairman of the interviewing panel wrote a letter to the Secretary directing him to make an offer of appointment to the plaintiff as National Clinic Administrator with effect from April 1. 1972. A copy of this letter was sent by the Chairman of the panel to the plaintiff. The Secretary did not, however, write any letter to the plaintiff. On seeing an advertisement in the Daily Times on June 1, 1972, she asked the court to grant her an interim injunction restraining the defendant from committing a breach of Contract of Employment between her and the Family Planning Council of Nigeria. On June 16, 1972, she was granted the injunction pending the determination of the suit she had brought; the defendant was also restrained from interviewing candidate for the post of National Clinic Administrator. On November 23, 1972 the plaintiff applied for the Secretary to be substituted for the Council as defendant, and her application was granted by the court. The relevant portion of the letter which the Chairman of the panel wrote to his Secretary reads as follows:

"I wish to refer to the recent Executive Committee's decision that Mrs Ajayi-Obe be appointed as National Clinic Administrator and Mrs Asekun as Sister-in-charge Day Clinic. Mrs Ajayi-Obe's appointment was made after a competitive interview. These appointments are to take effect from April 1, 1972 and up till now offers of appointment have not been made to these ladies. I hereby direct that offers of appointment be made to both Mrs Ajayi-Obe and Mrs Asekun today."

In the purported reply to this letter, which was not addressed to her but only sent for her information, the plaintiff wrote as follows:-

"With reference to your letter... of 29th March, 1972, in which you indicated that I, Mrs C. A. Ajayi-Obe, has been appointed National Clinic Administrator,... I wish to state that I accept the offer and pledge to serve the Council to the best of my ability in this new capacity."

Evidence was adduced to show that the defendant as Secretary did not obey the Chairman's directive because he took the view that the manner of appointment was irregular. He did not comply, because he was excluded from the interview by the Chairman of the panel despite his objection. The Executive Committee later approved the recommendation of the interviewing panel, but it was soon replaced by a new Executive Committee which on May 19, 1972 decided that the post should be re-advertised. The learned trial Judge, after reviewing the evidence before him, came to the conclusion that there was a valid contract between the plaintiff and the Family Planning Council of Nigeria, that she was duly appointed, and that an injunction should be granted against the defendant, his servants and agents, restraining them from committing a breach of the contract of employment between the plaintiff and the Family Planning Council of Nigeria, and from offering the post of National Clinic Administrator to any other person apart from the plaintiff. From this decision the present appeal had been brought on seven grounds, only the following two grounds of which were argued by learned Counsel for the appellant. These are as follows:-

"(1)    The learned trial Judge erred in law in holding that there is a valid contract between the plaintiff and the Family Planning Council of Nigeria when:

(a)     Exh. 'A' was not an offer to the plaintiff but a directive by the third plaintiff witness to the defendant to make an offer and that directive was never complied with by the defendant;

(b)     Exh. "F' the purported letter of acceptance of Exh. 'A' by the plaintiff is dated 30/3/72. when in paragraph 5 in the Statement of Claim the plaintiff completed a letter dated 31/3/72.

(2)     The learned trial Judge erred in law in holding (p. 66 11. 21-22) that the defendant made oral offer of employment to the plaintiff when such oral offer by the defendant was never completed by the plaintiff and the defence during the trial specifically objected that such evidence was inadmissable and the learned trial Judge promised to take appropriate action as regards the inadmissable evidence when the time comes (p. 29, 11. 25-32)"

Mr Akinjide, learned Counsel for the appellant submitted that there was no offer made to the plaintiff and that there was no acceptance made by her; and that the learned trial Judge promised to go into the matter of the alleged oral offer which the plaintiff claimed that the defendant had made to her, but the judge never did. The plaintiff sued the defendant for an injunction on the strength of the letter written by the Chairman to the Secretary of Council, and also relied on her purported letter of acceptance of an offer that was never made. Learned Counsel submitted that it was never part of the duty of the Chairman himself to make an offer on behalf of Council. He submitted that there was no contract to which an injunction could be attached.

It is clear that, on the evidence adduced by both parties, there had been no contract between the plaintiff and the Council in respect of which an injunction could have been granted. One of the most elementary rules of the law of contract is that there must be a definite offer by the offeror and a definite acceptance by the offeree. Thus in Powell v. Lee (1908) 99 LT 284 the governing Board of a school decided, by a narrow majority, to appoint the plaintiff headmaster. One of the majority without any express authority to do so, informed the plaintiff that he had been appointed as headmaster. When the Board later reversed their decision, the plaintiff brought an action for damages against the Board of the school, but the action failed, as there was no contract between the plaintiff and the defendant.

In the present case, it should be noted that neither in the Constitution under which the Council was established nor by any resolution specially adopted in that behalf was the Chairman authorised to communicate the decision of the selection panel or of the Executive Committee to the plaintiff. The Secretary is the normal channel of communication between the Council and outside bodies or individuals, especially in such routine matters of day-to-day occurrence as inserting authorised advertisements in newspapers or elsewhere and conducting correspondence on behalf of the Council with members of the public. If, as appears on the face of the evidence in this case, the Secretary has disobeyed lawful instruction of his superior, it seems to us that he might be liable to disciplinary action to be taken administratively against him as an internal measure. It is, however, not for us to pass upon such matters which have nothing to do with the question whether or not there was an enforceable contract between the plaintiff/respondent and the council. There is also the further question that, even if we were to assume that an offer had been made by or on behalf of the Council and that it had been duly accepted by the plaintiff respondent, it is not obvious how the defendant/appellant would interfere with it by the mere completion of the process of re-advertisement of the post as expressly directed by the new Executive Committee. It seems a little strange that the plaintiff/appellant had chose to seek an injunction to restrain the defendant/respondent in this way instead of bringing an action later for breach of contract, if indeed there ever was one, against the Council. The Secretary's failure to carry out an order of the Chairman to make an offer cannot amount to an interference with a non-existent contract between appellant and the Council.