⦿ CASE SUMMARY OF:
New Nigeria Newspapers Limited v. Mr. Felix Atoyebi (2013) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Labour law.
– Employment law.
– Statutory flavour in employment.
– Master – Servant relationship.
New Nigeria Newspapers Limited
Mr. Felix Atoyebi
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ita G. Mbaba, J.C.A.
* FOR THE APPELLANT
– Mas’ud Alabelewe Esq.,
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
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 to 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.
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.
1. Whether the dismissal of the employment (sic) of Respondent was wrongful.
2. 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.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, IN PART]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The Court of Appeal restated what the Trial Court held: “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!
2. THE COURT OF APPEAL SET ASIDE THE RETIREMENT MONEY PAYMENT MADE BY THE TRIAL COURT BUT CONCLUDED THAT THE RESPONDENT IS ENTITLED TO BE PAID FOR THE PERIOD HE WAS IN DISMISSAL.
i. 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.
ii. 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!
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 reinstating 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.
**DISSENTING – THERESA NGOLIKA ORJI-ABADUA, J.C.A.
i. 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.
ii. 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.
iii. 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.
iv. 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.
v. 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.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Kwara State Poly v. 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 …”
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 …”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
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. – Mbaba, J.C.A. Newspapers v. Atoyebi (2013)
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). – Mbaba, J.C.A. Newspapers v. Atoyebi (2013)