⦿ CASE SUMMARY OF:
Osumah v. EBS (2004) – CA
by PipAr Chima
⦿ NOTABLE DICTA
* FAIR HEARING, NATURAL JUSTICE
Fair hearing within the meaning of section 33(1) of the 1979 Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the rules of natural justice namely a udi alteram partem and nemo judex in causa sua. – Muhammad JCA. Osumah v. EBS (2004)
However, the requirement that a person should be offered opportunity to defend himself after being charged need not necessarily be in the form of a trial involving oral testimonies i.e. examination-in-chief and cross examination. What is required is to afford him the opportunity to rebut, correct or contradict what is alleged against him. The principle of natural justice is satisfied if the person accused is allowed to correct or rebut what is prejudicial to him in writing. – Muhammad JCA. Osumah v. EBS (2004)
* STATUTORY FLAVOUR EMPLOYMENT
An employment with statutory flavour is one governed by statute wherein the procedures for employment and dismissal of an employee are clearly spelt out. In such a situation, the employment cannot be terminated other than in the way and manner prescribed by that statute and any other manner of termination inconsistent with the statute is null and void and of no effect. The contract is determinable not by the parties, but only by statutory preconditions governing its determination. – Muhammad JCA. Osumah v. EBS (2004)
It is settled law that the character of an appointment is determined by the legal character of the contract of employment. Where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavour. It is immaterial that the other contracting party is a creation of a statute. – Muhammad JCA. Osumah v. EBS (2004)
The fact that an organisation or authority which is an employer is a statutory body does not mean that the conditions of service of its employees must be of a special character, ruling out the incidence of a mere master and servant relationship. Where the contract between the parties is clear and unequivocal, the court must, in construing the relationship of the parties, confine itself to the terms and contract of service between the parties. – Muhammad JCA. Osumah v. EBS (2004)
* SPECIFIC PERFORMANCE OF CONTRACT OF SERVICE
The general rule is that the court will not grant specific performance of a contract of service. It therefore follows that a declaration to the effect that a contract of service still subsists is rarely made unless there are special circumstances to warrant making such a declaration. For example, where the contract of service has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship or where a special legal status such as a tenure of public office is attached to the contract of employment, in these circumstances, a court may use its discretion to declare that a contract of service still subsists. See: Olaniyan v. University of Lagos (2001) FWLR (Pt. 56) 808, (1985) 2 NWLR (Pt. 9) 559; Ewarami v. African Continental Bank Ltd. (1978) 4 SC 99 and Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40. – Muhammad JCA. Osumah v. EBS (2004)
* WRONGFULLY TERMINATED CONTRACT
Where an employee’s appointment is wrongfully terminated, his remedy lies in an action for damages, because the court cannot force an employer to keep an employee in his services if the employee’s services are no longer required. The normal measure of damages the employee would be entitled to, is what he would have earned over the period of notice required to lawfully terminate his employment. This is consistent with the contract between the parties which has stipulated the measure of damages. See: Onalaja v. African Petroleum Ltd. (1991) 7 NWLR (Pt. 206) 691 ; Taiwo v. Kingsway Stores Ltd. (1950) 19 NLR 122 and Union Bank of Nigeria Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647. – Muhammad JCA. Osumah v. EBS (2004)
* MOTIVE IRRELEVANT IN EMPLOYMENT DISMISSAL
The master can relieve the employee of his job with or without a reason. Motive for so doing is not relevant, see Geidam v. NEPA (2001) 2 NWLR (Pt. 696) 45. Be that as it may, if the determination is in breach of a term of the contract of employment, the court cannot, by its order, compel the employer to keep in its employment an employee whose service it no longer desires or requires. See Opuo v. NNPC (2000) 14 NWLR (Pt. 734) 552. – NGWUTA, JCA. Osumah v. EBS (2004)
Alhaji I. O. Osumah
Edo Broadcasting Service Sole Administrator, Edo Broadcasting Service
(2004) JELR 56950 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
The appellant, Alhaji I. O. Osumah, was employed by Edo Broadcasting Service, the 1st respondent herein, as assistant store officer on grade level 07 sometime in 1977. His appointment was confirmed on 4th August, 1979. By 1990, the appellant had risen to the post of Principal Store Officer on grade level 12.
By a letter No. NB/BD/CP.22/5 dated 25th May, 1996, the appellant was compulsorily retired from the services of the 1st respondent “sequel to government views and decisions on the report of the Auditor-General on the accounts of the Edo Broadcasting Service for the period of 1st September, 1991 to 31st December, 1993 and comments on accounts of the Edo Broadcasting Service for the period of 1st January, 1994 to 19th July, 1995.”
After receipt of the letter of compulsory retirement, the appellant wrote a petition to the secretary to the Edo State Government appealing to the said secretary to reconsider the compulsory retirement and reinstate him back to his job. When he did not receive any reply from the secretary to the Edo State Government, he sued the respondents jointly and severally claiming the following reliefs: A declaration that the letter No. NB/BD/CP.22/55 of 21st May, 1996 by which the plaintiff was purportedly compulsorily retired by the defendants is unconstitutional, illegal, totally misconceived, null and void and of no effect. 2) A court order setting aside the said letter No. NB/BD/CP.22/ 55 of 21st May, 1996 with a consequential order directing the defendants to reinstate him forthwith to his post of principal store officer.
Pleadings were filed and exchanged. At the trial, the appellant gave evidence on his own behalf. He did not call any other witness. The respondents called one witness. In a considered judgment, the learned trial Judge dismissed the appellant’s claim in its entirety. In his judgment, the learned trial Judge first considered whether or not the appellant’s appointment has statutory flavour. The learned trial Judge held that the appellant’s appointment has no statutory flavour.
This is an appeal by the plaintiff, now Appellant.
1. Whether the appellant was given fair hearing before his compulsory retirement was effected?
2. Whether the Appellant’s employment has statutory flavor?
3. Whether the compulsory retirement of the Appellant was in accordance with Staff Regulation 220(ii)?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In our present case, the appellant appeared before the Justice Ojo Commission. He testified before the commission. He also cross-examined witnesses who testified at the commission. He also appeared before the Auditor-General. However, the appellant was never shown the Justice Ojo Commission’s Report. Also, he was not shown the Auditor-General’s recommendation. He was not aware of the findings of the Justice Ojo Commission against him neither was he aware of the recommendations of the Auditor-General regarding him. In this circumstance, could it be said that the appellant was given a fair hearing? I think not. Even though the appellant appeared before the Justice Ojo Commission and the Auditor-General, the indictment against him, was never brought to his notice. He was not aware of the charge against him, as such he could not be expected to correct, rebut or contradict what is alleged against him. In short, the appellant was not given an opportunity to defend himself. Instead of bringing the allegation of misconduct to his notice and affording him the opportunity to defend his conduct, he was served with a letter retiring him compulsorily “sequel to the government’s views on the report of the Auditor-General …” My answer, therefore, is in the negative. The 1st respondent did not comply with the rules of natural justice, in that the appellant was not given an opportunity to defend himself.
2. ISSUE 2 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The appellant’s contract of employment is founded exclusively on the Staff Regulations. The fact that the 1st respondent is a creation of a statute does not make its employees’appointment to have statutory flavour. The determination of the appellant’s appointment is governed by the Staff Regulations simpliciter and nothing more. I therefore hold that the appellant’s A appointment has no statutory flavour at all even though the 1st respondent is a creation of a statute. The relationship between the appellant and 1st respondent is that of a master and servant.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It could be seen from Staff Regulation 220 (ii) that a member of staff could be compulsorily retired under the provision of Staff Regulation 221 by giving him one month’s notice, if he has served for fifteen or more years. The appellant has served the 1st respondent for nineteen years, he is therefore entitled to one month’s notice before he is compulsorily retired. The appellant was compulsorily retired with immediate effect. He was not given one month’s notice as stipulated by Staff Regulation 220 (ii). The appellant is entitled to receive one month’s salary in lieu of notice consequent upon his wrongful compulsory retirement.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Muhammad JCA
The Staff Regulation 221 provides inter alia that where a staff is compulsorily retired, in such a case: “ … the member of staff would be entitled to any benefits due to him under the service’s pension scheme.”
On the totality of the foregoing, I hold that the appeal succeeds. The appellant is entitled to one month’s salary in lieu of one month’s notice. He is also entitled to any benefits due to him under the 1st respondent’s Pension Scheme. The appellant is entitled to cost which I assess at N5,000.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
Per MUNTAKA-COOMASSIE JCA: The appellant however cannot be entitled to a re-instatement to his position. In accordance with the 1st respondent’s pension scheme, the appellant is only entitled to one month’s notice. The nature of the employment does not come within the statutory provisions, as it has no statutory flavour, this contract is merely an ordinary master and servant relationship. The appellant’s remedy, fortunately or unfortunately, lies in an action for damages and never specific performance. The locus classicus on this point are the cases of: Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos (2001) FWLR (Pt. 56) 808, (1985) 2 NWLR (Pt. 9) 559; Ewarami v. African Continental Bank Ltd. (1978) 4 SC 99. I am in agreement with the consequential orders made in the lead judgment.
Per NGWUTA JCA: The fact that the appellant appeared before a court or a panel does not ipso facto mean that he was given a fair hearing in a matter in which his conduct was called to question. He may have been heard, but there can be no fair hearing if the appellant did not know what his employer had against him. If the purpose of the hearing is to determine his guilt or the propriety vel non of his conduct it is not enough that he is heard, the hearing must relate to his defence of the complaint against him. Being the person to be affected by the outcome of the hearing, there is need to afford him opportunity not just to be heard, but to be heard in his defence of whatever A allegation is made against him.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Fakuade v. O.A.U.T.H.C.M.B. (1993) 5 NWLR (Pt. 291) 47 where Karibi-Whyte JSC stated at page 63: “The character of an appointment and status of the employer in respect thereof is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by the agreement of the parties,simpliciter, there is no question of the contract having a statutory flavour. The fact that the other contracting party is the creation of a statute did not make any difference.”
Adigun v. Attorney- General of Oyo State (1987) 2 NWLR (Pt. 56) 197 where the Supreme Court stated: “If the principles of natural justice are violated in respect of any decision, it is indeed immaterial, whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared as no decision.”
Chukuma v. Shell Petroleum Development Company (1993) 4 NWLR (Pt. 289) 512 at 560 where Karibi-Whyte JSC said: “In the ordinary case and following the common law principle,termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality.”
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS