⦿ CASE SUMMARY OF:
Miss Yetunde Zainab Tolani v. Kwara State Judicial Service Commission & Ors (2009) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Constitutional Law.
– Labour Law.
– Employment Law.
– Employment with statutory flavour.
– Fair hearing.
– Termination of appointment.
Miss Yetunde Zainab Tolani
1. Kwara State Judicial Service Commission;
2. Hon. Justice Timonthy Oyeyipo – Chairman Kwara State Judicial Service Commission;
3. Mrs. Folalere – Secretary Kwara State Judicial Commission;
4. Attorney General Of Kwara State
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Sotonye Denton-west, J.C.A.
* FOR THE APPELLANT
– SALMAN JAWONDO ESQ.
* FOR THE RESPONDENT
– J. O. MUMINI ESQ., DPP KWARA STATE MINISTR OF JUSTICE.
⦿ FACT (as relating to the issues)
Yetunde Zainab Tolani was employed as a magistrate grade II by the Kwara State Judicial Service Commission.
The appellant having been considered fit and qualified after an interview conducted by the 1st respondent, the appellant was employed as a Magistrate Grade II on salary Grade Level 10 vide the letter of 23rd day of December, 2004 tendered as (Exhibit 1) in the Lower court. Consequently, the appellant immediately without delay accepted the appointment as required by Exhibit I vide the appellant’s letter of 24th day of December, 2004 (Exhibit 2) and the appellant accordingly assumed duty on the 24th day of December, 2004.
The 1st, 2nd, and 3rd Respondents forwarded a petition letter dated 31st day of January, 2005 (Exhibit 10) written by one Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin to the appellant for her reaction. In brief, the petition written by Abdul-Rasaq Tunde Raji of Ita Kudima Area Ilorin alleged that the appellant lied about her marital status and misrepresented herself as a single lady whilst she was already married in her bid to secure employment with the 1st Respondent. In reaction to the alleged petition which was tendered in the Lower court as (Exhibit 10), the Appellant In response in a letter dated 31st January, 2005 (Exhibit 4) categorically denied being a married woman as at the time of her employment with the Kwara State Judicial Service Commission.
In his petition, the petitioner concluded in (Exhibit) 10, that he was “looking forward for an immediate action” from the Kwara State Judicial Service Commission. Consequently, the 1st, 2nd, 3rd and 4th Respondents reacted immediately to the purported petition and within a period of eight days, the Respondents withdrew its letter of employment and terminated the appointment of the Appellant from the Kwara State Judicial Service Commission vide the letter dated 8th day of February, 2005 tendered as (Exhibit 5). Despite the appeals and protests by the appellant vide Exhibits 6, 7, and 8, the Kwara State Judicial Service Commission refused to further employ the Appellant who was accordingly terminated with effect from 11th day of February, 2005.
Consequent to this termination, the appellant was obliged to take out a writ of summons against the respondents in the Lower Court.
This appeal is against the Judgment of Honourable Justice A.A Adebara J. of the Ilorin High Court, Kwara State, delivered on the 15th day of January, 2007, in which the trial Court, inter-alia, held that the withdrawal of appointment of the appellant as a Magistrate Grade II on Grade level 10 with the Kwara State Judicial Service Commission was not unlawful and that the appellant is entitled to only damages and as such the appellant is not entitled to a re-instatement. He awarded the appellant one month salary in lieu of notice.
1. WHETHER OR NOT THE LOWER COURT WAS RIGHT IN HOLDING THAT THE APPELLANT’S EMPLOYMENT IS NOT CLOTHED WITH STATUTORY FLAVOUR AND SHE IS THEREFORE NOT ENTITLE TO RE-INSTATEMENT BECAUSE THE TERMINATION OF THE APPELLANT’S APPOINTMENT BY THE RESPONDENT IS NOT UNLAWFUL, AND SHE IS ENTITLED TO DAMAGE.
2. IF THE ANSWER TO ISSUE NO. 1 ABOVE IS IN THE NEGATIVE, WHETHER OR NOT, HAVING REGARD TO THE FACT THAT THE APPELLANT WAS EMPLOYED AS A MAGISTRATE GRADE II ON GRADE LEVEL 10, THE LEARNED TRIAL JUDGE WAS RIGHT IN AWARDING THE APPELLANT ONE MONTH SALARY IN LIEU OF NOTICE.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. It is however clear that the 1st Respondent being a creature of the Constitution, is indeed a statutory organization and the Appellant’s employment is liable to enjoy a statutory flavour more especially as the officer concerned is also a senior officer within the cadre of the officers appointed by the 1st Respondent. See Section 197, PART II of the third Schedule to the Constitution of the Federal republic of Nigeria and also Section 318 of the 1999 Constitution stipulates that a magistrate is a senior Public officer.
ii. Furthermore, the contention of whether the appellant was given or not given fair hearing is in itself very fundamental issue that would need the consideration of the court. The Respondents it was stated issued her query to respond within a specified period to the issues raised in the petition and without granting opportunity to confront the petitioner or even direct access to the respondents especially the 2nd respondent. Further they refuse even to believe her and her sole witness who did by virtue of his position as her father deposed even on oath to the fact that his daughter is not married nor had been married to anybody including the spurious petitioner. Rather than hear her out, the respondents chose to deliver their verdict on the petition by an immediate withdrawal of her employment. Would this attitude amount to fair hearing? The right to fair hearing is one of fundamental rights provided under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. On no account can this right be waived or statutorily taken away, even at the expense of speedy trial.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. Having declared that the withdrawal or termination of the Appellants employment is null and void as same was ultra vires the powers of the commission/ 1st Respondent, the effect is that the Appellant is entitled to return to her duty post.
AT THE END of the judgement, the Court of Appeal stated: “In view of the foregoing and in the final analysis, all the issues are hereby resolved in favour of the appellant. The appeal is meritorious and therefore succeeds; the judgment of the lower court is hereby set aside. The Appellant is accordingly re-instated in her employment as Magistrate Grade II. Further, all entitlements due to her as per her claim is hereby granted in her favour. There is no order as to costs.”
ARTICLE 10 of the Universal Declaration of Human Rights of the United Nations’ General Assembly 1948.
Section 197, PART II of the third Schedule to the Constitution of the Federal republic of Nigeria, and also Section 318 of the 1999 Constitution.
⦿ SOME PROVISION(S)
ARTICLE 17 of the Universal Declaration of Human Rights of the United Nations’ General Assembly 1948, wherein inter-alia it is provided thus: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks”.
⦿ RELEVANT CASE(S)
NAFIU RABIU v. THE STATE (1981) 2 NCLR 293 AT 326 thus: “… the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to the varying conditions which the development of our general communities must involve, ours being a plural, dynamic society and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as not to defeat the principles enshrined in the Constitution … this court should whenever possible and in response to the demands of justice, lean to the broader interpretation …. It is my view that the approach of this court to the construction of the constitution should be and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quarh pereat.”
IMOLEMO V. WEST AFRICAN EXMAINTION COUNCIL (1999) a NWLR (Pt. 265) 203 at 317 Per Karibi-Whyte JSC: “There is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulation derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant”.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
An appellate court is entitled to consider any issue which did not arise on appeal in order to meet the substance of the appeal. The appellate court can also consider an issue suo motu even if it did not arise from the ground of appeal. See Section 16 of the Court of Appeal Act 2007. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
Every advocate must fight for justice at all times even if it does not attract pecuniary reward or other perquisites for the Advocate. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
Despite the Appellant’s presentations of her marital status as being a single lady which status was confirmed by her father in his own representations and even an Affidavit evidence, the Respondents chose to ignore same and without given her an opportunity to confront headlong the writer of the petition believed in the genuiness and truth of the allegations and accordingly proceeded to terminate the promising career of the young magistrate on the bench, and indeed terminated her appointment. Furthermore, the Appellant’s right to private family life and honour was thus affected by this Singular act of the respondents, believing in the petitioners’ allegations that the appellant is a married woman. Her Constitutional Rights to private family life and enjoyment was thus subject to being breached by the respondents. This subjection of the Appellants’ privacy to spurious petitioners whose aim might be to ridicule her was not intended in the 1999 Constitutions and the universe declaration. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
I am a strong advocate of the protections granted to the citizen under our laws especially the constitution and any breach of constitutional provision against a citizen’s rights shall in my view collapse like a pack of cards. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
… for I am an avowed believer of substantial justice and not legalistic justice that plays and toys merely around decided cases. The courts are leaping more towards substantial justice rather than technical justice. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
It has been stated that the appointment of a civil servant can be determined at any time subject to the civil service procedure. But where no special procedure is contained in the Condition of service of a public servant, such a servant employment can still be determined with or without notice while the employer will be liable to pay only the arrears of salary which might have accrued to the servant as at that date. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
The court has very wide powers to do substantial justice without undue regard to technicalities. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
It is the law even where a person has not specifically asked for a relief from a court the court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment, which it follows. It is not an order made subsequent to a judgment, which derails from the judgment or contains extraneous matters. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
It is settled law that court can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect established rights. – Denton-west, J.C.A. Yetunde v. Kwara (2009)
The purpose of Section 16 aforesaid is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionality’s must be present before the provisions of this section can be invoked; and they are – “(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it. (2) The real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal. (3) All necessary materials must be available to the court for consideration. (4) The need for Expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented and (5) The injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself.” – Denton-west, J.C.A. Yetunde v. Kwara (2009)
In effect, while all material facts are pleaded, evidence is not pleaded. In the same vein, provisions of enactments are not pleaded. Enactments are not pleaded because pursuant to section 74 of the Evidence Act, courts have a duty to take judicial notice of Laws or enactments including subsidiary enactments such as the said Kwara State Judicial Service Commission Regulations 1980. – C.C Nweze, J.C.A. Yetunde v. Kwara (2009)