ADEDAYO SUNDAY JOSEPH & ORS V. KWARA STATE POLYTECHNIC & ORS

ADEDAYO SUNDAY JOSEPH & ORS V. KWARA STATE POLYTECHNIC & ORS

final

In The Court of Appeal

Ilorin Judicial Division

On Tuesday, the 21st day of May, 2013

Suit No: CA/IL/49/2012

Before Their Lordships

 

PAUL ADAMU GALINJE (PJ) Justice, Court of Appeal

HUSSEIN MUKHTAR Justice, Court of Appeal

TIJJANI ABUBAKAR Justice, Court of Appeal

 

Between

1. ADEDAYO SUNDAY JOSEPH

2. ABUBAKAR JOS USMAN

3. MUSA AKANBI ADEDO -Appellants

And

1. KWARA STATE POLYTECHNIC

2. KWARA STATE  POLYTECHNIC GOVERNING COUNCIL – Respondents

 

INDEX OF SUBJECT MATTER:

  • EVIDENCE     Notice of the facts presented in evidence.
  • EVIDENCE   - Oral evidence as a duty of trial court.
  • JUDGMENT   - Decisions of Courts are based on facts and Law.
  • LABOUR LAW  - Contract of employment; Dismissal of an employee.
  • LABOUR LAW -Employment with statutory flavor; Termination of an employmment.

 

ISSUES:

1. Whether the appellants' employments are not clothed with statutory flavor and therefore the appellants
are not entitled to reinstatement and other benefits.
 
2. Whether the appellants  employments are an ordinary contract of employment.

3. Whether the issue of rights of parties to terminate the contract of employment between the appellants and the respondents  can be exercised when the issue of termination of employment was not pleaded and argued before the court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

COUNSEL:

Mr. Salman Jawondo. With him is N. A. Sulyman Esq. for the Appellant/Cross Respondent. -For Appellants

Mr. A. O. Adelodun (SAN), with Mr. Saka Isau (SAN). Also appearing with them are Dr. O. Y. Abdul, Y. L. Akanbi Esq, A. A. Dauda Esq, A. Abdulkareem Esq, A. T. Kamaldeen Esq. and Idris Suleiman Esq. for theRespondents/Cross Appellants.- For Respondents.

 

JUDGMENT:

PAUL ADAMU GALINJE, J.C.A.:  (Delivering the Leading Judgment):

The Appellants herein who were lecturers employed by the first Respondent, challenged their dismissal from the service of the 1st Respondent by the 2nd Respondent in their respective writ of summons and statements of claim before the High Court of Kwara State. Their respective suits were consolidated and heard together.

At the end of the trial, the learned trial Judge Folayan J, in a reserved and considered judgment held that the Appellants were wrongfully dismissed from service of the 1st Respondent. However she declined to order for their reinstatement as she awarded three (3) months salaries to each of the Appellants in lieu of notice, and other entitlements (not specified) they are due for as at the time the employment was brought to an end.

The Appellants are not satisfied with the decision of the lower court which was delivered on the 20/02/2012. Being aggrieved, they have brought this appeal through their notice of appeal dated 4th April, 2012 and filed on the 5th of April, 2012. The said notice of appeal at pages 379 – 382 of the printed record of this appeal contains four grounds of appeal which I reproduce hereunder without their particulars as follows:

(1) The learned trial Judge erred in law by holding that the appellants' appointments are not clothed

with statutory flavor and therefore the appellants  are not entitled to reinstatement and other prayers

contained in the writ of summons and the statements of claim but to Three Months salaries in lieu of notice of termination or appointment.

(2) The learned trial Judge misdirected himself in law by holding that "in the case at hand the claimants employment was an ordinary contract of employment and as can be seen in Chapter 15.1 of Exhibit 6, these claimants are entitled Months' notice of termination and by implication 3 Months' salary in lieu of notice because they are wrongfully dismissed." When from the state of pleadings and evidence the appellants, employment are regulated by the Principal law and subsidiary legislation.

(3) The learned trial Judge erred in law in raising and deciding suo motu and to the prejudice of the appellants the issue of rights of parties to terminate the contract of employment between the appellants and the respondents when the issue of termination of employment was not pleaded and argued before the court.

(4) The decision is against the weight of evidence in respect of the part of the decision complained of.

The Respondents are also dissatisfied with the judgment of the lower court and they have therefore brought a notice of Cross appeal dated 29th October, 2012 and filed on the 30th October, 2012. The notice of Cross appeal contains five grounds of appeal, which are also hereunder reproduced without their particulars, as follows:

(1) The learned Trial Judge erred in law when she failed to uphold the dismissal of the Appellants in

line with chapter 11.1 of the condition of service Regulating the Appellants' employment, after having held in the following passage of her judgment that:

"Looking at the contents of Exhibits D1 – D5 reference made by the Defence counsel to Exhibits D3, D4 and D5 defining without doubt amount to insubordination and foul language if said by an officer to his superior in office. So I totally agree with the learned counsel for defendant that those phrases in Exhibits D3 – D5 amount to foul language and insubordination."

(2) The learned trial judge erred in law when she failed to understand the case of the Cross Appellants as pleaded, leading to her holding in the following passages of her judgment that:

"Since the long witness of the defendants and they don't know members of the Editorial board of JACU Bulletin, then their reason for dismissing these claimants must go beyond the fact that they are members of JACU"

AND ALSO THAT:

"In this regard, I hold that the evidence of the defendants through the lone witness (DW1) has failed to link the claimants before the court with those offensive publications tendered as exhibits D1 – D5 and based on this I hold that their dismissal has not been justified by the Defendants."

(3) The learned trial Judge erred in law and relied on irrelevant considerations in holding that the dismissal of the Appellants is wrongful based on her reasoning that:

"If the Executive members of the other unions SSANIP and NASU are not held responsible for the JACU Bulletins Exhibits D1 – D5 then there is need for defendants to explain why only the Executive members of ASUP are held responsible and the two (2) others are not affected."

(4) The learned trial Judge erred in law when she refused to apply the doctrine of lifting the veil to link the Appellants directly with offending publications on the basis that JACU is not an incorporated body that has a legal personality, but a faceless body.

(5) The decision in respect of the part complained of is unreasonable, unwarranted and patently against the weight of evidence.

In addition to filing a cross-appeal, the cross respondents also brought a cross-respondents Notice of intention to contend that judgment be  affirmed on ground other than those relied on by the court below dated 5th November, 2012 and filed the same day.

Parties filed and exchanged briefs of argument. I intend to deal with the appeal, before I take on the cross appeal.

At page 4 of the Appellants' brief of argument dated  and filed on the 1st August, 2012, but deemed filed on the 7th, February 2013, one issue was formulated for the determination of this appeal.

The sole issue reads as follows:-

"Having regard to the state of pleadings and evidence placed before the trial court, was the court right in holding that the Appellants' employment is not clothed with statutory flavor and therefore the Appellants are not entitled to reinstatement but salaries in lieu of notice even when the issue of termination of appointment and award of salaries in lieu of notice was raised and resolved suo motu by the trial court."

For the Respondent, one issue only is formulated for determination of this appeal at page 5 of the Respondents' brief of argument dated and filed on the 27th August, 2012.

The sole issue reads thus:-

"Whether the trial court was not correct, having regard to the pleadings, the evidence adduced and the law, in refusing to order the reinstatement of the Appellants whose employments were shown to be solely governed by the Regulations Governing Conditions of Service for both Junior and Senior  Staff and Scheme of Service of the Respondents, and not by any Statute."

For a proper understanding of the argument of the respective parties in this appeal, which I will consider shortly, it is pertinent to set out the brief facts of this case.

The 1st, 2nd and 3rd Appellants at the time material to this case were Lecturer I, Lecturer III and Senior Lecturer on Harmonized Academic Tertiary Institution Salary Scale (HATISS) II Step 4, 8 Step 12 and 12 Step 2 respectively in the employment of the 1st Respondent.

Sometimes in September 2008 each of the Appellants received a query titled "Allegation of misconduct" in which they were accused of active involvement in the reckless malicious and embarrassing publications against the 2nd Respondent and its Chairman, using foul language in their Union's Weekly Bulletin and divulging to the public official secret of the 1st Respondent.

Each of the Appellants answered the query. After the submission of answers to the query, the Appellants were subsequently invited to appear before the Disciplinary Committee of the 1st Respondent. They duly appeared as directed and presented their defence to the similar allegations that were raised in the query. It will appear the Disciplinary committee were not satisfied with the explanation of the Appellants as the Appellants  were dismissed from the service of the Respondent

through dismissal letters dated 3rd October, 2008.

In his argument, Mr. Salman Jawondo, learned counsel for the Appellants submitted that by the pleadings and evidence placed before the trial court, that court committed grave error in holding that the Appellants' employment is not clothed with statutory flavor and for that reason the Appellants are not entitled to reinstatement. Learned counsel submitted that for a contract of employment to import statutory flavor, two ingredients must co-exist. He listed the ingredients as follows:-

1. The employer must be body set up by the Constitution or Statute.

2. Either the Statute or regulation made pursuant to the Constitution or principal statute or law must make provisions regulating the employment of the staff of the category of the employee concerned.

It is learned counsel's contention that the two conditions enumerated above are present in the employment of the Appellants in this case. In aid learned counsel cited Imoloame v. West African Examination Council (1999) 9 NWLR (pt. 265)303 at 317.

In a further argument, learned counsel made reference to S. 3(1) of the Kwara State Polytechnic Law, Cap S. 12 Laws of Kwara State, 2006, and s. 7 of the same law and submitted that the 1st and 2nd Respondents are respectively created by the Sections of the law mentioned above. Still in argument, learned Counsel cited several sections of the State Polytechnic law and Exhibits 6, 6A and 6B to justify his submission that the 1st Respondent is a statutory body. Learned counsel found fault with the conclusion reached by the learned trial Judge that the issue of statutory flavor of the Appellants' employment was being raised for the first time in the Appellants' final address. According to the learned counsel this conclusion runs riot of and in  complete oblivion of the state of pleadings and evidence before the court and the position of the law.

In support thereof learned counsel made reference to several paragraphs of the pleadings and concluded that the issue was sufficiently pleaded by the Appellants and admitted by the Respondents, as such the need for further proof does not arise. In aid, the authorities in Lawal v. Amusa (2009) All FWLR (pt. 485) 1811 at 1820, Ekpemupolo v. Edremoda (2009) All FWLR (pt. 473) 1220 at 1245, Ss 75 of the Evidence Act 1990 and S. 123 Evidence Act 2011 were cited. In a further argument learned counsel submitted that the Appellants are public servants as defined by Section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria, as such the relationship that exist between the Appellants and the Respondents is governed by the Constitution of Nigeria, the Kwara State Polytechnic Law and Exhibits 6, 6A and 6B which all go to the protection of the Appellants' employment as opposed to master and servant relationship under Common Law. Learned Counsel on the authority of Tolani v. Kwara State Judicial Service Commission (2009) All FWLR (pt. 481) 880 at 922 urged this court to hold that the failure of the lower court to order for reinstatement of the Appellants is unlawful, as the same court had declared null and void the Appellants' dismissal by the Respondents.

In reply to the submissions made by the learned counsel for the Appellants, Mr. Adebayo O. Adelodun, learned Senior counsel for the Respondents submitted that the fact that the 1st Respondent is a creation of statute does not transform the employment of the Appellants, which was expressly made under Exhibits 6, 6A and 6B respectively into employments that enjoy statutory flavor. In support, learned senior counsel cited the case of Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (OAUTHCM) (1993) 5 NWLR (Pt. 291) 47 at 57 – 58. In a further argument, learned Senior Counsel submitted that the contract of service between the Appellants and the Respondents are contained in the conditions of service admitted as Exhibits 6, 6A and 6B, and the Appellant' letters of employment admitted as Exhibits 3, 21 and 37. It is the learned senior counsel's contention that the Court can only consider these documents in determining the relationship between the Appellants and the Respondents herein, as it cannot presume that because the 1st Respondent was established by law; all its employees enjoy statutory protection in relation to removal from office. In aid, Learned Senior Counsel cited Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303 at 317, N.N.P.C. v. Idonoboye – Obu (1996) NWLR (pt. 427) 655 at 674.

Still in argument, learned Senior counsel invited the court to have a critical look at Exhibit 6, which is the same as Exhibits 6A and 6B. According to the learned senior counsel, chapters 11.5.1 and 11.5.2, thereof clearly provide for those category of staff whose removal from office is governed by statute and those that are not so governed and the learned counsel for the Appellants' failure to lead evidence that their own employment is subject to statute is fatal to the Appellants' case.

Finally on this issue, learned senior counsel urged the court to hold that the learned trial Judge was right in holding that the Appellants' employment did not enjoy statutory flavor and the only remedy for wrongful dismissal is payment of damages. Now, once again this court has been called upon to determine what type of employment enjoys a statutory flavor? This matter has received several authoritative pronouncements by the Apex Court and this Court in compliance with the doctrines of Stare Decisis has consistently followed those pronouncements.

The law is settled that in determining disputes arising from the determination of contract of employment, the court must confine itself to the plain words and meaning of the terms of contract of service between the parties which provides for their right and obligations.

It is the relevant conditions stated in the employee's letter of appointment and the staff Regulations and conditions of service that must be construed and nothing else. See Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303 at 317.

In this appeal, the letter of offer of temporary appointment as Lecturer I, dated 1st April, 2005 and a letter headed Regularization of appointment dated 27th July, 2005, both addressed to the 1st Appellant and marked Exhibits 3 and 5 respectively are similar. I will reproduce Exhibit 5 as follows:- "ADEDAYO SUNDAY JOSEPH  DEPT. OF SOCIAL WORK/COOP., I.O.A., KWARA STATE POLYTECHNIC, ILORIN REGULARIZATION OF APPOINTMENT.

 Following your successful performance at the regularization interview, the Government Counsel at its 137th regular meeting of 29th June, 2005 has approved the regularization of your appointment as LECTURER I in the Department of SOCIAL WORK/COOP of the Polytechnic.

This appointment which takes effect from 4th APRIL, 2005 (The date you assumed duty) will be for a probationary period of two years in the first instance, which may be subject to extension for specific periods, or confirmed to retiring age of 60 at the discretion of the council. It may however be terminated with three months' notice by either the  Polytechnic or yourself or payment of three months' salary in lieu of notice by either party. In the case of academic staff, the notice of termination must expire with the end of an academic session.

You will be eligible for the following:

a. Pension scheme as in operation in the Public Service of Nigeria

b. Other conditions as contained in the Regulations Governing Conditions of Service of Senior Staff of

the Polytechnic or as may from time to time be approved by the Council.

I enclose herewith two copies of this letter of appointment. If you decide to accept the appointment on the terms set out above, please sign over a Fifty Naira stamp on a copy of the appointment letter and return to this office immediately.

Accept my congratulations. A. Sanni Deputy Registrar (Estab.)

For: Registrar" Exhibits 21 and 22 are letters of offer of temporary appointment as Lecturer II dated 22/4/05 and Regularization of Appointment dated 27/7/05 both addressed to the 2nd Appellant.

 I will reproduce Exhibit 22 hereunder for proper understanding of the argument of parties as follows:-

"ABUBAKAR JOS USMAN, MATHS/STATISTICS DEPT.

IBAS KWARA STATE POLYTECHNIC, ILORIN REGULARIZATION OF APPOINTMENT

Following your successful performance at the regularization interview, the Governing Council at

its 137th regular meeting of 29th June, 2005 has approved the regularization of your appointment as

LECTURER III in the Department of MATHS/STATISTICS of the Polytechnic.

 

This appointment which takes effect from 25th APRIL, 2005 (The date you assumed duty) will be for a probationary period of two years in the first instance, which may be subject to extension for specific periods, or confirmed to retiring age of 60 at the discretion of the Council. It may however be terminated with three months' notice by either the Polytechnic or yourself or payment of three months'

salary in lieu of notice by either party. In the case of academic staff, the notice of termination must expire with the end of an academic session.

You will be eligible for the following:

a. Pension scheme as in operation in the Public Service of Nigeria

b. Other conditions as contained in the Regulations Governing conditions of Service of Senior Staff of the Polytechnic or as may from time to time be approved by the council.

I enclose herewith two copies of this letter of appointment. If you decide to accept the appointment on the terms set out above, please sign over a Fifty Naira stamp on a copy of the appointment letter and return to this office immediately.

Accept my congratulations.

A. SANNI

Deputy Registrar (Estab.)

For: Registrar"

Exhibit 37 is the letter of offer of appointment addressed to the 3rd Respondent and dated 3/11/09. I also reproduce same as follows:-

"Mr. Akanbi, Musa Adedo

c/o Mr. A. A. Saadu

Registry Department

Kwara Poly., Ilorin

Dear Sir/Madam,

OFFER OF APPOINTMENT

I write on behalf of Council of the Kwara State Polytechnic to offer you an appointment as Lecturer

III in the Polytechnic Department of Banking & Finance, IBVS.

2. The appointment is subject to your:

(a) being declared medically fit by a qualified Medical officer at the Polytechnic Medical centre;

(b) submission on assumption of duty of your original certificate for verification;

(c) submission of a certified statement of your last payslip from your present employer for perusal;

(d) satisfactory completion of National Youth Services or certificate of exception where applicable.

3. By the appointment, you are liable to be posted  to any Section/division within the Polytechnic set-up where your services are required.

4. The appointment will commence from the date you assume duty and will be for a period of two years in the first instance subject to extension for specific periods, or to retiring age of 60 at the discretion of the Council. It may however be terminated with three months' notice by either the polytechnic or yourself or payment of three months' salary in lieu of notice by either party. In the case of academic staff, the notice of termination must expire with the end of an academic session.

5. Your salary will be at the rate of N14, 578.00 per annum on the salary EUSS 08.1 (N14, 578.00 N28, 956.00). Your next increment will be due on 1st October, 1998.

You will also be eligible for the following:-

(a) Passage and Transport from your present residence to Ilorin.

(b) Housing allowance at the rate of N1, 029.46 per month until Polytechnic accommodation is available.

(c) Transport allowance of N 306.00 per month.

(d) Pension scheme as in operation in the Public Service of Nigeria.

(e) Other conditions as contained in the Regulations Governing Conditions of Service of Senior Staff of the Polytechnic or as may from time to time be approved by the council.

6. I enclose herewith two copies of this letter of  appointment. If you decide to accept the appointment on the terms set out above, please sign over Fifty Kobo stamp on a copy of the appointment letter and return it to me. You should also please let me know in writing whether you accept the offer or not.

7. These documents should reach this office not later than ________immediately.

Yours faithfully,

(A.A. Saadu)

For: Registrar

Cc: Rector

Bursar

Director, __________

 

H.O.D. – Banking & Finance Internal Audit."

The letters reproduced herein above were admitted at Exhibit 5, 22 and 37 respectively.

These Exhibits conveyed to the Appellants offers of  appointment. The conditions for determination of

the contract of employment are clearly set out in these Exhibits which the Appellants signed and accepted. There is nothing in these letters that  suggests that the Appellants' appointments enjoy statutory flavor. Learned counsel for the Appellants has forcefully argued that the Appellants' employment by a statutory body enjoy appointments with statutory flavor. The Supreme Court in the case of Fakuade v. O.A.U.T.H (supra) paragraphs C – F which was cited and relied upon by the Respondents, the Apex Court did resolve that issue in the following words:-

"The fact that the Respondent is the creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavor. The special statutory provision merely reinforces the security of tenure provided the servant.

There is no doubt and this must be conceded, that if the determination of Appellants' appointment had

fallen under section 9 of the University Teaching Hospital (Reconstitution of Boards etc.) Decree No. 10 of 1985, the situation would have been different. The cases relied upon by learned counsel to the Appellant would have been relevant.

In the instant case the contract between the parties is clear and unequivocal; Appellants have contracts of service with Respondent. The contract also  contains the provisions for its determination.

The court must in construing the relationship of the parties confine itself to the plain words and meaning which can be derived from the rights and obligations provided thereunder."

See Adegbite v. College of Medicine University  of Lagos (1973) 5 SC 149, Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (pt. 2) 433, Sule v. Nigerian Cotton Board (1985) 6 SC 62, (1985) 2 NWLR (pt. 9) 17.

Exhibits 5, 22 and 37 together with the Regulations Governing Conditions of Service for both Senior

and Junior Staff and the Scheme of service for the Kwara State Polytechnic Ilorin Revised in 2007 which was admitted in evidence as Exhibit 6 have clearly provided for the mode of terminating the Appellants' appointments. It is provided in Exhibits 5, 22 and 37, that the appointment of each of the Appellant is determinable by three months' notice by any of the parties or payment of three months' salary in lieu of notice. Chapter 11.5.1 of Exhibit 6 titled 'Removal from office' provides as follows:-

"The Rector, Registrar, Bursar, Polytechnic Librarian and Director of works shall only be removed from office in accordance with the provision of the Edict."

Chapter 11.5.2 of the same Exhibit provides thus:- "If it appears to the Council that any other confirmed senior member of staff of the Polytechnic should be removed from office or employment on the grounds of misconduct or inability to perform the functions of his office or employment, the Council shall:-

(a) Give notice to the person concerned specifying reasons thereof.

(b) Make arrangements for an investigating committee to investigate and report on the matter.

(c) Afford the person concerned an opportunity of making representation in person on the matter

before the investigating committee. If council is satisfied that the person concerned should be removed, the council may so remove him by an instrument in writing signed by the Registrar on the directive of the council….

" Where the conditions for appointment or determination of the appointment is governed by the preconditions of an enabling statute so that a valid determination of appointment is predicated on satisfying such statutory provisions that will be a contract with a statutory flavor. It is within this category that the officers mentioned under chapter 15.5.1 of Exhibit 6 belong. For it is clearly provided that they shall only be removed from office in accordance with the provision of the Edict establishing the 1st Respondent. The Appellants are not one of the officers mentioned under chapter 11.5.1 of Exhibit 6. They therefore fall under Chapter 11.5.2 of Exhibit 6. Shitta-Bey v. FPSC (1981) 1 NSCC 28, Laoye v. FPSC (1989) 2 NWLR (pt. 106) 652. In an appointment with statutory flavor, the contract of employment is not  determinable by the parties, but only by statutory preconditions governing its determination.

In the instant case, the contract of employment as reflected in the letters of employment of the Appellants provide for three months' notice or three months' salary in lieu of notice where any of the parties wishes to terminate the contract. I therefore agree with the submission of the learned senior counsel for the Respondent that the trial court cannot reinstate a dismissed staff in a private contract of employment except of course the contract agreement as between the parties expressly says so. It is not the business of the court to make a contract between the parties but to give effect to what had been agreed upon by the parties themselves. It is trite that the court cannot force a willing employee on an unwilling employer- Where a contract of employment is terminable on notice, the damages which can be considered to be the natural and probable consequence of terminating the employment without the requisite notice cannot

be more than what the employee could have earned during the period of notice. See Katto V.C.B.N. (1999) 6 NWLR (Pt. 607) 390, Western Nigeria Development Corporation V. Abimbola (1966) 1 All NLR 159.

In the instant case the rights and obligations of the parties to the contract of employment are circumscribed by the terms of the contract on Exhibits 5, 22 and 37. The length of the notice for the termination of the contract and the quantum of damages to be paid in lieu of notice are circumscribed in those Exhibits. The lower Court was therefore right when it refused to presume the existence of any other contract over and above that which the parties have entered into. See Afribank (Nig.) PLC V. Kunle Osisanya (2000) 1 NWLR (Pt. 642) 598. It is therefore my firm view that the Appellants' employments were not clothed with statutory flavor, and the lower Court was right when it declined to make an order of reinstatement. The 1st Respondent relied on the Kwara State Polytechnic Law, Cap. S. 12, Laws of Kwara State, 2006 to make Exhibits 6, 6A, and 68. In making these Exhibits, it clearly separated those officers whose appointments are determinable in accordance with the Edict establishing it and those whose appointments are to be governed by common law principle of master/servant relationship. See Chapters 15.5.1. and 15.5.2.

The Appellants here are learned and they were aware of the contents of the contract of employment when they accepted their appointment. They can therefore not be heard to repudiate the contract of employment. 

In Okafor v. Igwilo (1997) 11 NWLR (pt. 527) 36 at 53 paragraphs F – G, this Court said:

"A party who executes agreement with others, with his eyes wide open, and after taken advantage of its benefits with full knowledge of its contents cannot belatedly go to court to castigate its genuineness. Even a Court of equity cannot come to the aid of such a party."

The issue of the award of three months' salary in lieu of notice to the Appellants was not raised suo motu by the court. The issues were embedded in Exhibits 5, 22, 37 and 6 which were before the court. The lower court was therefore entitled to take notice of the facts presented in evidence before it and employs same to settle any dispute between the parties.

In Chief Joseph Abraham and 1 Or. v. Olorunfunmi and Ors, (1991) 1 NWLR (pt. 165) 53 at 77 – 78 paragraphs H – A, it is held:- "It is trite law that a court is competent to refer to its own records and make use of them at will. In other words, there is nothing wrong in law for a court to suo motu open its case file and make use of any record found therein.

There is therefore nothing wrong however in a trial Judge making reference to original pleadings in the course of his judgment.  Similarly a court of law is most competent to make use of Exhibit admitted and marked."

The decision in respect of the three months' salary in lieu of notice was a consequential order made after the refusal to reinstate the Appellants as sought by them even though their main prayer was granted. There is nothing that stops a court from making consequential order, which flows directly from the judgment.

Having come to the inevitable conclusion that the Appellants' employments were not clothed with statutory flavor, the only issue formulated on their behalf is resolved against them, and the grounds of appeal upon which it is formulated is hereby dismissed.

I will now consider the cross appeal, where the Cross Appellant formulated a single issue for determination of the cross appeal. It reads as follows:-

"Whether the learned trial Judge did not misapprehend the cross Appellants' case as pleaded in coming to the conclusion that the Appellants' dismissal was wrongful."

For the cross respondent, one issue is formulated for determination of the cross-appeal. It also reads as follows:-

"Having regard to the state of pleadings and evidence placed before the trial Court, was the Court not right in its conclusion that the dismissal of the cross respondents was/is wrongful, null and void."

In reaching a conclusion that the Appellants, dismissal was wrongful, the lower Court said:-

"What is crucial and germane in the present case is how these claimants are singled out for dismissal on the alleged publication of JACU Bulletin containing the offensive abusive language used against the chairman of 2nd defendant. Mallam Abubakar Jos is the Chairman of ASUP, Adebayo Sunday Joseph is the Publicity Secretary of ASUP, Mr. Musa Akanbi Adedo is the secretary of ASUP. It is a common ground by the two parties that JACU comprises of ASUP, SSANP and NASU.

If it (sic) very important and very essential that to justify the dismissal of the executive body of ASUP leaving that of SSANIP and NASU, the defendants must provide or give reason(s). Since the lone witness of the defendants said they (sic) don't know members of the Editorial board of JACU Bulletin then their reason for dismissing these claimants must go beyond the fact that they are members of JACU. Even though there is evidence before this court that JACU has been proscribed, but the defendants did not make the claimants' membership of JACU the reason for their dismissed (sic, dismissal) in Exhibits 10, 28 and 47 (dismissal letters of claimants). The complaint and reasons is (sic) grounded on the use of foul language and insubordination as contained in Exhibits D1 – D5 is an attack on the person of chairman of 2nd defendant.

All the claimants said they are not responsible for the publication of Exhibits D1 – D5 and that they are not members of editorial board of JACU Bulletin. The only witness for the Defendants (Dw1) said under cross examination that he doesn't know  who the members of editorial board of JACU Bulletin are because JACU is a faceless body. The  claimants have not denied being executive members of ASUP but the defendants have failed to establish the claimants link with Exhibit D1 – D5 as to justify their dismissal on account of the publication of the said Exhibits D1 – D5." In arguing the sole issue formulated by the cross Appellants, Mr. Adebayo O. Adelodun, learned senior counsel for the Cross Appellants submitted that despite the proscription by the Cross  Appellants of certain unions to which the cross Respondents belonged as employees of the Cross Appellants, and inspite of the failed attempt by the cross Respondents to challenge the proscription of the said unions in Court, the Cross Respondents in disobedience and insubordination not only chose to remain members of the said unions, but employed the use of their membership to form a clandestine body known as the Joint Action Congress of Unions "JACU" which published the "JACU Bulletin" by which foul language was employed to disseminate reckless and abusive materials with the aim of causing disaffection for the Cross-Appellants.

Learned Senior Counsel reproduced paragraphs 5 -17 of the cross appellants' statement of defence at 33 the lower Court and further submitted that having agreed that the publications constitute foul language and insubordination within the contemplation of the conditions of service, the lower court's decision that the Appellants were not connected with the publication is perverse, especially when the Cross-Respondents admitted their membership of ASUP which is one of the Associations that make up the JACU.

Finally learned senior counsel submitted that the learned Trial Judge placed a heavier burden of proof on the Cross Appellants than the minimum of proof recognized in the administration of justice in civil matters when on the face of state of pleadings and evidence, the trial court held that no connection between the Appellants and the publications has been established.

Mr. Salman Jawondo, learned Counsel for the Cross-Respondent in his argument, submitted that having regard to the state of pleadings and evidence placed before the trial court, the court is perfectly right in its conclusion that the dismissal of the Cross-Respondents is wrongful, null and void and of no effect. Learned Counsel submitted that the contract of employment between the parties is regulated by the Constitution of the Federal Republic of Nigeria 1999, the state Polytechnic law, Cap. S.12 Laws of Kwara State and the Regulations Governing condition of service for senior and junior staff and scheme of service for the Kwara State Polytechnic (Exhibit 6). It is the further argument of Counsel that membership of JACU was not one of the grounds of queries issued to the Cross Respondents and such membership of JACU should not form a ground of dismissal of the Cross Respondents.

Now the letter of query titled ALLEGATION OF MISCONDUCT dated 23rd September, 2008 which was addressed to the first Appellant herein reads in part as follows: -

"I am directed by the Governing Council of this Polytechnic to request you to explain in writing to the council, why disciplinary action should not be taken against you for your active involvement in the reckless, malicious and embarrassing publications against the council and its chairman, using foul language in your unions weekly bulletin.

Through the said publication, the official secrets of the polytechnic have been divulged to the public without the council's permission. These acts of yours are in violation of the provisions of paragraphs 11.1 and 11.2 (a) of the Kwara State Polytechnic's Regulations Governing the conditions of service of both Senior and Junior Staff."

This query is at page 21 of the Record of this appeal. Similar queries at pages 158 and 236 of the record

of this appeal were addressed to the 2nd and 3rd Appellants respectively.

By the contents of the queries, the Appellants were accused of -

(1) Reckless, malicious and embarrassing publications against the Council and its Chairman, using foul language in their Weekly Bulletin.

(2) Divulgement of the official secrets of the Polytechnic to the public without the Council's

permission. The Appellants were neither charged with being members of proscribed unions, nor were they indicted for forming a clandestine body known as the Joint Action Congress of Unions "JACU Bulletin." Since the Appellants were not queried on their propriety of being members of proscribed

unions and forming JACU, the argument of the learned senior counsel on that score will not prevail  against the Appellants, since they were not given an opportunity to be heard on that subject.

The 1st Appellant in his reply to the query, at page 24 of the record denied being involved in any reckless publication against the Council and its Chairman. He admitted the existence of JACU Bulletin which is a publication of three unions, namely ASUP, SSANIP and NASU and that publication in the bulletin is a responsibility of all the unions in the Polytechnic campus, as contributions, are received from all the workers in the employment of the polytechnic. The replies by the 2nd and 3rd Appellants are at pages 159 and 237 of the record respectively. The contents are similar to the 1st Appellant's reply.

The 1st Appellant's letter of dismissal is dated 3rdOctober, 2008 and it is titled "DISMISSAL FROM THE POLYTECHNIC". Paragraph 3 of the letter reads as follows:-

"Your actions bordered on the use of foul language, insubordination, disclosure of official information all which come under misconduct and cross mis-conduct as contained in section 11.1 of the Polytechnic conditions of service".

I have earlier set out part of the contents of the query in which the word insubordination was not included. This word only surfaced in the letter of dismissal of the Appellants. The dismissal letters for the 2nd and 3rd Appellants are at pages 62 and 239 of the record of this appeal respectively. The contents are similar with the Appellant's letter of dismissal.

The law is settled that an employer is not bound to give reasons for terminating the appointment of his employee. However where the employer gives reasons for the termination, the onus lies on the employer to establish those reasons. See Afribank(Nig) PLC V. Kunle Osisanya (2000) 1 NWLR (Pt. 642) 598 at 614 paragraph B-C, Angel Spinning & Dyeing Ltd. V. Mr. Fidelix Ajah (2000) 13 NWLR (Pt. 685) 532, Taiwo v. Kingsway Stores Ltd. (1950) 19 NLR, Prof. Olatunbosun v. N.I.S.E.R.C (1988) 6 SCNJ 38 at 59, Evans Brothers Nig. Publishing Ltd V. Falaiye (2003) FWLR (pt. 152) 15 at 34.

In the instant case, the queries exhibits 7, 24 and 45 upon which the letters of dismissal of the Appellants were predicated, stated that the appellants were involved in reckless, malicious and embarrassing publication, using foul language in their Weekly Bulletin and they were also accused of leaking official secrets of the polytechnic to the public. These were the allegations against the Appellants  that were required to be established against them on the face of their denial that they were involved in the publication. Were the allegations established before the Court?

In answer to the question posed here, the learned trial Judge at pages 375-376 of the Record of this appeal said:-

"There is no scape goat in legal liability. The facts have to be established by evidence the real and actual person(s) responsible for the wrongful act. In the case at hand there is no fact or credible evidence before me that these claimants and no other person(s) committed the wrong. Apart from Exhibit 16 signed by the 2nd claimant (which is not a subject of complaint here no fact has been established where these claimant (sic claimants) undermined the authority of the defendants.

I mean such facts are not before this court, because the reason for their dismissal is premised on Exhibit D1 – D5 and the defendants claim to have acted on chapter 11.1 of Exhibit 6. The cases of Nwobosi v. ACB LTD. (1995) 6 NWLR (Pt. 404) 658 at 677 – 678, Sule v. Nig. Cotton Board (1995) 2 NWLR (pt.5) 17 at  8 cited by the defence counsel are not apposite because the complaint and reason for dismissal is not about Willful disobedience of lawful order or directions of the defendants but about the malicious publications of Exhibits D1 – D5."

Clearly the passage of the judgment reproduced above is predicated on the finding of facts by the trial Court. This area is only narrowly open to this court. The appraisal of oral evidence is the primary duty of the trial court and this court can only interfere with the performance of that exercise if the trial court has drawn wrong conclusion from accepted or proved facts. See Fashanu v. Adekoya (1974) 1 All NCR  (Pt. 1) 35 at 41, Eki v. Giwa (1977) 11 NSCC 96.

 In the instant case, Mr. Musa Olarewaju Salman,the only witness for the Respondent at the lower Court, admitted at pages 350 – 357 of the record, as follows:-

"Abubakar Jos is the Chairman of ASUP not JACU. 39 Mr. Adedayo Sunday Joseph is also the PRO of ASUP not JACU. Mr. Musa Akanbi Adedo is also the Secretary of ASUP and not JACU…It is not true that  the 3 claimants were dismissed because they belonged to banned unions they started publishing malicious and using foul language against the Polytechnic Council and Chairman… It is true we don't have official document directed to the banned unions. I don't know the executive members of JACU, and   don't know its editorial board members."

In a situation, where persons are accused of publishing foul language, it must be proved that they were the ones that did publish the offensive articles. From the admission of the only witness for the Respondents, the Appellants were neither members of JACU nor were their names published against the articles. JACU received articles from members of the three unions established in the Polytechnic. The Respondents, accusation was based on speculation as the Respondents' witness in answer to Cross examination said, "JACU Bulletins were not published by spirit, there are people behind them." The witness also admitted under cross examination that there is nowhere in Exhibits D1 – D5 where the claimants disclosed the official information of the school.

From the evidence available therefore, it was not proved that the Appellants were either involved in reckless, malicious and embarrassing publications against the Council and its Chairman, or divulgement of the official secrets of the 1st Respondent. I am therefore of the firm view that the lower court was right when it held that there was no proof that the Appellants were linked with the publication in JACU Bulletins. I do not agree with learned Senior Counsel for the Respondent when he submitted that the findings of the learned trial Judge on this score are perverse. Clearly the Appellants were not accused of being members of JACU whose membership were drawn from three unions namely Senior Staff Association of Nigeria Polytechnic (SSANIP, Non Academic Staff Union of Polytechnic (ASUP) and Academic Staff Union of Polytechnic (ASUPP). In this regard members of any of the unions are capable of contributing article to JACU Bulletins. Where apart from the Appellants, there are possibilities of the offensive article being published by other persons, then there must be evidence linking the Appellants with the publication before they are found culpable.

Anything contrary can only amount to speculation which will surely not take the place of evidence and the law. In Agip (Nig) Ltd. v. Agip Petrol Int'l (2010) 5 NWLR (Pt. 1187) 348 at 413 paragraphs B – D, the Supreme Court, per Adekeye JSC held:

"It is trite principle also that a Court should not decide a case on mere conjecture or speculation.

Courts of laws (sic) are Courts of facts and laws . They decide issues on facts established before them and on laws. They must avoid speculation." 

See Orhue v. N.E.P.A. (1998) 7 NWLR (pt.557) 187,

Oguonzee v. State (1998) 5 NWLR (pt.551) 521,

 Animashaun v. UCH (1996) 10 NWLR (Pt- 476) 65,

Adefulu v. Okulaja (1996) 9 NWLR (pt. 475) 668,

 Agabi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65,

Agharuka v. F.B.N. Ltd. (2010) 3 NWLR (Pt. 1182) 465.

Learned Senior Counsel for the Cross Appellant submitted that the learned trial Judge ought and should have invoked the principle of lifting the veil, to actually hold the Cross-Respondents liable for Exhibits D1-D5.

The argument here seems strange as only the veil of incorporation is capable of being lifted. Where the Cross Appellant has admitted that JACU is a clandestine organization not recognized, by the Cross Appellants and not registered, even if there is any veil to be lifted, nothing will be found under the veil.

The issues for consideration in this appeal are the reasons upon which the Appellants were dismissed and not extraneous matters and other expanded stories as set out in the parties respective pleadings. The questions as to whether the Appellants were witnesses of truth or not as the learned senior counsel has alluded to in respect of denial of the proscription of ASUP, the hard fact is were the reasons for which the Appellants were queried and subsequently dismissed established. I do not think the reasons   for the dismissal of the Appellants were proved.

In my consideration of the appeal, I had reached a conclusion that the Appellants' employment did not enjoy statutory flavor. I therefore agree with learned senior counsel that the assertion in the Cross Respondent's brief, as argued in the reply brief, that the contract of employment between the parties is regulated by the Constitution of the Federal Republic of Nigeria 1999, the State Polytechnic Law etc., is not correct. I also agree that under the common law principle of master/servant relationship, an employee can be dismissed for any act of misconduct, which must be established by evidence if the dismissal is challenged in Court.

For all I have said, I am of the view that the cross appeal is without merit. Accordingly same is hereby dismissed.

Having dismissed the appeal, the argument in respect of the Cross-Respondents' notice has become spent and no longer worthy of consideration. This is so because even if I find reason to dismiss the cross-appeal, there is no longer any appeal to dismiss. Accordingly the Cross-Respondents' notice is accordingly struck out.

I make no order as to cost.

 

HUSSEIN MUKHTAR, J.C.A.: I have been privileged to read in advance the judgment of my learned brother Galinje, JCA just delivered. I am  in complete agreement with the reasons therein and the conclusion that the appeal is bereft of substance and deserves an outright dismissal.

The cross-appeal is thereby rendered insignificant and worthless.  It cannot but be struck out.

An action for wrongful dismissal is bound to succeed if it violates the clear terms and conditions due incorporated in the contract of employment. The failure to establish reasons for the dismissal renders it baseless and speculative. No judgment can be founded on mere conjuncture or speculation. The hard facts must be pleaded and established by credible evidence as no amount of speculation can take the place of evidence. The lower court was therefore right in holding that the appellants were wrongly dismissed from the 1st Respondent's service.

From the foregoing and the more detailed reasons in the lead judgment, which I wholly adopt, both

the Appeal and the cross-appeal are clearly devoid of any substance and cannot but be dismissed. The Cross-Respondents' Notice is spent and accordingly struck out.

I subscribe to the consequential orders inclusive of the one on costs.

 

TIJJANI ABUBAKAR, J.C.A.: I read before now the judgment delivered by my brother Galinje JCA, I accept the reasoning and conclusion arrived at after thorough analysis of the facts and law, I have nothing more to add as my brother has navigated through the entire issues, I therefore adopt the reasoning and conclusion as mine.

I also dismiss Appellants' appeal, and strike out cross Respondents' notice; there is no order as to cost.