CORAM

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I. G. MBABA, J.C.A

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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APPEAL, COURT, JUDGMENT AND ORDER, LABOUR LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Defendant purportedly terminated the appointment of the Claimant on the ground that the Claimant’s services are no longer required. The Claimant, by way of originating summons presented some questions before the National Industrial Court on grounds that by the combined effect of Section 16 of BUK Act and Section P of BUK Senior Staff Service Condition & Regulation, Claimant’s appointment can only be validly terminated on grounds of misconduct and inefficiency; that the Claimant’s appointment, even if it is to be terminated pursuant to the enabling laws, the Claimant is entitled to be accorded right of fair hearing and opportunity to make representation; and that the Claimant’s appointment is with statutory flavor, thus it must be terminated in accordance with statutory provisions.

The trial court held that the Defendant was wrong to have terminated the Claimant’s appointment on ground that the Claimant’s service are no longer required, that the letter of termination was wrongful and in contravention of the provisions of Section 16 of the BUK Act.  The court ordered that the Claimant be reinstated and be paid his salaries and allowances from the date of reinstatement. The Appellant has filed this appeal against the decision of the lower court. The Respondent had also filed a notice of preliminary objection, which was abandoned and consequently struck out.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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1 Whether, in view of settled judicial authorities and the processes available in the circumstances of this case, the learned trial Judge was not in error to have upheld the reliefs made in favour of the Respondent?”

 

 

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RATIONES DECIDENDI

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APPEAL – BASIS FOR THE ARGUMENT OF AN APPEAL

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“The law is that appeals are argued on the issues distilled for determination, and the issues must properly flow from or be related to the grounds of appeal, which in turn must be founded on or located in the judgment appealed against. See the case of Odum Vs Uchendu & Ors (2015) LPELR-25615 (CA); KRK Holdings (Nig) Ltd Vs FBN & Anor (2016) LPELR-41463 (SC).

In the case of Eze Vs The State (2017) LPELR-42006 CA, we held:

“It has been stated, severally, that appeals (the grounds thereof and Issues therefrom) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87; Agboroh Vs WAEC (2016) LPELR-40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413; Nnolim Vs Nnolim (2017) LPELR-41642 (CA). In the case of Nze Vs Aribe (2016) LPELR-40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Anozia Vs Nnani (2015) LPELR-24277 CA; (2015) 8 NWLR (pt.1461) 241; Obosi Vs NIPOST (2013) LPELR-21397; UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32; Punch Nig. Ltd Vs Jumsum Nig. Ltd (2011) 12 NWLR (pt.1260) 162.”

Thus, arguments of appeal must be founded on issues for the determination of the appeal, which must properly relate to and flow from the grounds of the appeal formulated by the Appellant. See also the case of Ahmaddamzomo Vs Musa & Anor (2013) LPELR-20761 (CA), Kobi Vs Usman Danfodio University, Sokoto & Ors (2018) LPELR-44665 (CA), where it was held:

“The settled position of the law is that appeals are argued based on the issues formulated for determination, which issue must arise from the grounds of Appeal filed… See also Enyinnaya Vs The State (2014) LPELR-22924 (CA).

– PER I. G. MBABA, J.C.A.

COURT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

FINDING OF COURT – STATUS OF THE FINDING OF A COURT NOT APPEALED AGAINST

“The law is trite, that a finding or holding of Court, not appealed against, remains binding and conclusive. See Opara Vs Dowel Shlumberger (Nig.) & Anor (2006) LPELR-2746 (SC), where it was held:

“It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court. In effect the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140 it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.”

– PER I. G. MBABA, J.C.A.

LABOUR LAW

EMPLOYMENT WITH STATUTORY FLAVOR –NEED FOR ADHERENCE WITH STATUTORY PROVISION ON THE MODE OF TERMINATION OF EMPLOYMENT WITH STATUTORY FLAVOUR

“The Respondent’s employment was one that enjoyed the protection of statute, and an employment with statutory flavor cannot be left at the whims and caprices of the employer to kick out the employee as any officer of the employer elects, without full compliance with the law/rules set down in the statute that established the organization/institution. See Olufeagba Vs Abdul-Raheem (2010) All FWLR (Pt.512) 1033 at 1093:

“Where contract of service enjoys statutory protection, it can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of parties without compliance with the enabling statutory provision.”

See also FRSC & Anor Vs Chandi & Ors (2016) LPELR-43806 (CA); Comptroller General of Customs & Ors Vs Gusau (2017) LPELR-42081 (SC); and Cosmos C Nnadi Vs National Ear Care Center & Anor (2014) LPELR-22910 (CA) where this Court held:

“In determining what an employment with statutory flavour means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin vs Shittu (2012) 41 WRN 26. In the case of University of Ilorin vs Abe (2003) FWLR (Pt. 164) 267 at 278, this Court held: “It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the 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. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.” The above was followed in the case of New Nigeria Newspapers Ltd vs Atoyebi (2013) LPELR-21489 (CA) where we said this of employment with statutory flavour: “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… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…” See also 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.”

– PER I. G. MBABA, J.C.A.

 

 

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CASES CITED

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STATUTES REFERRED TO

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Bayero University Act Cap B5 LFN

 

 

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