Musa Dattijo Muhammad SCN
Chima Centus Nweze SCN
Uwani Musa Abba Aji SCN
Mohammed Lawal Garba SCN
Helen Moronkeji Ogunwumiju SCN
(Substituted for Late Frank Jowan
by order of this Court made on 22/5/2012)
(For themselves and on behalf of the
Staff of the Delta Steel Company Ltd,
who have been declared Redundant as
shown in the scheduled attached
to the Writ of Summons)
APPELLANTS
DELTA STEEL COMPANY LIMITED
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, LABOUR, PRACTICE AND PROCEDURE
The Appellants were employed by the Respondent on different dates and have worked in various capacities for over 10 years pursuant to “Approved Conditions of Service for Federal Government Owned Steel Companies, 1989” until the Respondent’s redundancy policy or rationalization of staff (caused by the re-structuring exercise carried out by the Respondent) affected them in 1995, which they claimed is against their condition of service and the Labour Act. Both the trial and lower Courts dismissed the Appellants’ case, holding that the Appellants’ employment was regulated solely by Approved Conditions of Service for Federal Government Owned Steel Companies, 1989. Miffed by the judgment of the lower Court, the Appellants have appealed to this Court.
Appeal dismissed
Whether the learned Justices of the Court of Appeal in not considering issues 2 and 4 formulated by the Appellant were right in holding that it is the condition of service (Exhibit C) that governs the employment of the Appellants with the Respondent to the exclusion of any other laws, statute or regulations including the Labour Act.
It is the submission of the learned Counsel to the Appellants that by virtue of the provision in Exhibit C and Section 20 of the Labour Act, the lower Court was wrong to hold that the provisions of the Labour Act do not apply in the consideration of whether the Appellants were properly disengaged by the Respondent. It is further submitted that as an intermediate Court, failure by the lower Court to consider the Appellants’ issues 2 and 4 amounted to denial of fair hearing and is urging this Court to assume jurisdiction and resolve the issues in favour of the Appellants. He asked this Court to resolve this issue in their favour.
The learned Counsel to the Respondent submitted that by virtue of Exhibit C, being the Condition of Service, a Court cannot look at the Labour Law in the determination of the rights and obligations of the parties. He cited in support FAKUADE V. OAUTH (1993) 5 NWLR (PT. 129) 47. That the fact that the Respondent is a wholly owned company of the Federal Government of Nigeria does not mean that they enjoyed statutory flavour. He similarly argued that issues 2 and 3 formulated by the Appellant go beyond the issues in controversy between the parties in this case, hence the non-consideration by the lower Court. He however submitted that this Court may resolve same if it considers it necessary. He urged this Court to resolve this issue in favour of the Respondent.
It is without doubt that the Labour Act applies to every employer in Nigeria in both the private and public sector. However, it must be understood that it is a general guide against the whims and caprices of employers of labour.
Contract of employment is basically contractual. In fact, every employment is a contract and the laws and principles apply to contract of employment. Thus, the parties are bound by their contract since nobody can be forced against the other. It is logical therefore that the contract of service is the bedrock upon which an aggrieved employee must found his case. He succeeds or fails upon the terms and conditions thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. See Per SAMSON ODEMWINGIE UWAIFO, JSC, in KATTO V. CBN (1999) LPELR-1677(SC) (P. 10, PARAS, C-F). – Per U. M. Abba Aji, JSC
Where an employee is made an offer by the terms and conditions contained in the offer of employment, he has the latitude, unfettered and unreserved right to reject or accept whatsoever is contained therein. The Appellants in this appeal accepted the terms and condition of their employment by the Respondent contained in Exhibit C. If by their right, they perceived that the redundancy principle prescribed in Section 20 of the Labour Act ought to apply to them, they would have reconsidered the terms and conditions stated by the Respondent in Exhibit C or rejected the offer of employment. – Per U. M. Abba Aji, JSC
In an action for wrongful dismissal, it is necessary to plead the contract of employment, which is the foundation of the action. Without the contract and its particulars being pleaded by the plaintiff, no evidence of the terms of the contract which has been breached would be admissible at the trial and this will be fatal to the action since it will lack foundation. See Per UWAIS, J.S.C, in MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) LPELR-1912(SC) (PP. 16 PARAS. A).
“… it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them. It is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question… In the absence of the conditions of service between the plaintiff and the 2nd defendant, one cannot see whether or not the Governing Council or the sole administrator of the second defendant has anything to do with the contract sued upon by the plaintiff.” See Per PETER-ODILI, JSC, in AJI V. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) (PP. 15-16 PARAS. C), citing and relying on per Agbaje, JSC, in AMODU V. AMODE & ANOR (1990) 3 NSCC 226 AT 237 and BABA V. N.C.A.T.C. (1991) 5 NWLR (PT. 192) 388 AT 413. – Per U. M. Abba Aji, JSC
It is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first, to place before the Court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. It is not, in principle, for the employer who is a defendant to an action brought by the employee to prove any of these. Per SAMSON ODEMWINGIE UWAIFO, JSC, in KATTO V. CBN (1999) LPELR-1677(SC) (P. 10, PARAS. C- F) expatiated it thus: “As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties… In the latter case, this Court observed at p. 94 that the provisions of a written contract of service bind the parties thereto and that it was “outside the province of the learned trial Judge to look anywhere for terms of termination of the contract other than in the Agreement, Exhibit A.” The Court must confine itself to the terms of the contract of service between the parties which provides for their rights and obligations. Generally speaking, a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the Court will have no business with such motive but only to give effect to the contract of service between the parties. See Per IDRIS LEGBO KUTIGI, JSC, in FAKUADE V. O.A.U.T.H. COMPLEX MANAGEMENT BOARD (1993) LPELR-1233(SC) (PP. 14-15). It is not the function of the Court to make contracts between the two parties, but it is the Court’s duty to construe the surrounding circumstances including written and oral statements to effectuate the intention of the parties. In order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and unqualified acceptance of that offer by another. See Per DAHIRU MUSDAPHER, JSC, in OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) LPELR-2636(SC) (P. 24, PARAS. B-D). – Per U. M. Abba Aji, JSC
There is a bounden duty on a Court of law to consider all issues validly raised before it and a failure to so consider any of such issues constitutes in itself a breach of fair hearing. See Per PETER-ODILI, JSC, in OLAYEMI & ORS V. FHA (2022) LPELR-57579(SC) (PP. 45-46 PAR-AS. F). – Per U. M. Abba Aji, JSC
…exceptions as to why an appellate Court may consider all issues raised. An appellate Court which is of the view that a consideration of one issue is enough to dispose of the appeal is not under obligation to consider all other issues posed since the resolution of the one issue or any other has effectively settled the main dispute and there is no point in wasting further time going into the other issues which would not change the course of events already settled by the earlier consideration and ruling in the said deciding issue or issues. See Per PETER-ODILI, JSC, in OKONKWO V. EZEAKU & ANOR (2020) LPELR-57008(SC) (PP. 26 PARAS. A), relying on 7UP BOTTLING CO. LTD V. ABIOLA & SONS BOTTLING CO. LTD (2001) FWLR (PT. 70) 1611; (2002) 2 NWLR (PT. 750) 40. – Per U. M. Abba Aji, JSC
A company wholly owned by the Federal Government of Nigeria may be a public company, but it does not make its employees enjoy statutory flavor save as provided in the contract of employment, and Exhibit C has not provided for that. The fact that the Appellants worked in a government-owned company does not make their employment to have statutory flavor. Mere participation of any government in a private company does not, ipso facto, convert such a company into a public one. See Per WALI, JSC, in ORJI V. ZARIA INDUSTRIES LTD & ANOR (1992) LPELR-2768(SC) (PP. 251 PARAS. B-B). In fact, where the condition for appointment or determination of the contract is governed by the preconditions of an enabling statute so that a valid determination of appointment is predicated on satisfying such statutory provisions, this is a contract with a statutory flavor. See OLANIYAN V. UNILAG (1985) 2 NWLR (PT.9) 599; (1985) 1 ALL NLR 314 AND SHITTA-BEY V. FPSC. (1981) VOL. 12 NSCC 28 AND LAOYE V. FPSC (1989) 2 NWLR (PT.106) 652, Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC, in IMOLOAME V. WAEC (1992) LPELR-1500(SC) (P. 18, PARAS. D-F). – Per U. M. Abba Aji, JSC
In general, it is rudimentary law that a Court has a duty to consider all issues raised before it. However, the attitude of appellate Courts, where a Court does not consider all issues raised before it, is not to inexorably set aside the decision. Let me state that as a general rule, all Courts, except this Court, are duty-bound to consider all issues raised before it. But a close examination of the authorities on the point discloses that it is not in all instances where a Court fails to consider all issues raised before it that it would indubitably result in the decision reached being set aside. See BRAWAL SHIPPING (NIG.) LTD V. F. I. ONWADIKE CO. LTD (2000) LPELR-802 SC. – Per U. M. Abba Aji, JSC
My Lords, it has long been settled that where issues are found not to be crucial, but are merely theoretical and of no practical utilitarian value, pronouncing on them will be an exercise in futility. Failure to do so cannot have any effect on the decision of the Court, particularly if there would be no miscarriage of justice. Their determination would, therefore, make no practical or tangible addition to the outcome of the matter or to the decision of the lower Court being appealed against. Issues two and four before the lower Court fall into this category. Yahaya v State (2002) ALL FWLR (pt. 241) 277, 305, Ishaya Bamaiyi v State and Ors. (2001) (pt. 46) 956, 974, Rozen Investment Ltd and Anon v NDIC (2007) ALL FWLR (pt. 348) 823, 844. – Per C. C. Nweze, JSC
My Lord George Adesota Oguntade JSC, in LONGE v. FIRST BANK OF NIG. PLC (2010) ALL FWLR Pt. 525, held that there are three categories of contracts of employment:
In the master and servant relationship, the master has unfettered right to terminate the employment, but in doing so, he must comply with the procedure stipulated in their contract. In a contract with statutory flavor, the employment is protected by statute. In the event of termination of employment with statutory flavor, strict adherence must be had to the statute creating the employment, for statutory provisions cannot be waived.
An employment enjoys statutory flavor when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provision. In the circumstances, they invest the employee with a legal status higher than the ordinary master/servant relationship. See COMPTROLLER-GENERAL OF CUSTOM v. GUSAU (2017) ALL FWLR Pt. 911 Pg. 458, PARAS F-G.
This Court in FAKUADE v. OAUTH (1993) 5 NWLR Pt. 291 Pg.47 held that the character of an appointment and the status of an employee in respect thereof is determined by the legal character of the contract of employment. Hence where the contract of employment is determinable by the agreement of the parties simpliciter, there is no question of the contract having a statutory flavor. The fact that the other contracting party is the creation of a statute does not make any difference. (P.63, paras. A-B).
Where the conditions for appointment or the determination of a contract of service are governed by the preconditions of an enabling statute, so that a valid determination or appointment is predicated on satisfying such statutory provisions, such contract is one with a statutory flavor. The contract is determinable not by the parties, but only by statutory preconditions governing its determination. See FAKUADE v. OAUTH (1993) 5 NWLR Pt. 291 Pg.47.
This Court in OFORISHE v. N.G.C. LTD (2018) 2 NWLR Pt. 1602 Pg.35 drew the distinction between contract of employment with statutory flavor and contract of employment under common law thus:
“A contract of master and servant may be either subject to statutory or common law rules. Contracts with statutory flavor are contracts involving an employer created by a statute. Such contracts are governed by the statute which created the employer. A contract is one with statutory flavor where the conditions for appointment and termination of the contract are governed by an enabling statute. Consequently, a valid appointment or termination of the contract must satisfy provisions in the statute. On the other hand, contracts of master and servant without statutory flavor are classified as ordinary contracts of service. Such contracts are governed by an employee handbook where the conditions of service are spelt out. The master can terminate the service of the employee with, or without reasons. Further, the intention and motive for termination of the employment is never considered by the Courts. They are irrelevant. The termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with.” – Per H. M. Ogunwumiju, JSC
This Court in FAKUADE v. OAUTH (1993) 5 NWLR Pt. 291 Pg. 47, Per KARIBI-WHYTE, J.S.C. at page 63, paras. C-F held thus:
“The fact that the respondent is the creation of a 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 to the servant.” – Per H. M. Ogunwumiju, JSC
“Generally, the common means by which employment relationship is brought to an end is by termination. However, in times of economic downturn, excess manpower, or due to technological or structural reasons, employers of labour may be compelled to adopt measures that will enable them to remain in business. One of such measures is the declaration of some positions in the business organization as redundant and consequently reducing the number of employees on the grounds of redundancy.
The aftermath of the adoption of redundancy as an option for reducing the number of employees is often complicated. In that, whilst the affected employees would lose their means of livelihood, employers are at risk of industrial actions by the disengaged employees. It is therefore in the best interest of employers to follow the letters of the law and international best practices (where applicable) in the disengagement of their employees based on redundancy.
In ODINKENMERE v. IMPRESIT BAKOLORI (NIG.) LTD (1995) 8 NWLR Pt. 411 Pg. 52, the nature of redundancy was considered thus: “Redundancy on the other hand occurs when the service of a worker is no longer required by his employer due to no fault of the worker. In fact, it is an involuntary and permanent loss of employment caused by excess of manpower.” See Section 20(3) of the Labour Act Cap 198 Laws of the Federation of Nigeria 1990.
Redundancy procedures in Nigeria are governed by the following:
The Nigerian Labour Act (“The Act”).
The decisions of the Court i.e. case laws.
The employment contracts of the affected employees/employment handbook.
The provisions of any collective bargaining agreement between an employer and the representatives of a trade union.
Applicable international best practices.
Redundancy is defined under Section 20(3) of the Labour Act as “involuntary and permanent loss of employment caused by excess manpower.”
Section 20 of the Labour Act provides thus: “(1) In the event of redundancy:
(a) the employer shall inform the trade union or workers’ representative concerned of the reasons for and the extent of the anticipated redundancy;
(b) the principle of “last in, first out” shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and
(c) the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under Subsection (2) of this Section.”
It is important to note that the Nigerian Labour Act 1971 is the principal law that governs employment-related matters and the relationship between an employer and an employee in Nigeria.
In ADIBUAH v. MOBIL OIL (NIG) PLC [2015] LPELR-40987 PARA (CA) 1 @ 18-19, PARA C, Oseji JCA (as he then was) explained redundancy thus: “Redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is therefore not a voluntary retirement, nor is it a dismissal from service. It is also not a voluntary or forced resignation, nor is it a termination of appointment. Rather, it is a unique procedure whereby the employee is quietly and lawfully relieved of his appointment. As such, the conditions applicable to redundancy are quite distinct from those applicable to retirement or other modes of relieving an employee from active service, such as termination, compulsory resignation or dismissal.” See also the following cases GERAWA OIL MILLS LTD v. BABURA [2018] LPELR-44720(CA) 1 @ 19-20, Para A, UNION BANK v. SALAUDEEN [2017] LPELR-43415(CA) 1 @ 36-37, Paras E- E, PEUGEOT AUTOMOBILE (NIG) LTD v. OJE & ORS [1997] LPELR-6331(CA) 1 @ 14-15, Paras F-C.
It is clear from the abundant judicial authorities that redundancy is a form of involuntary permanent removal from office though different from termination, dismissal or retirement. Thus, the conditions applicable to redundancy are quite different from those applicable to retirement or other conventional modes of relieving an employee from service such as termination, resignation or dismissal. See NIGERIAN SOCIETY OF ENGINEERS v. OZAH [2015] 6 NWLR Pt. 1454 Pg. 76 @ 96, Paras D-G.
It should be noted that it is only trade union or worker’s representative that are entitled to be informed of the reasons for and extent of the anticipated redundancy when redundancy is anticipated. See EVANS BROS (NIG) PUB. LTD v. FALAIYE (2013) 13 NWLR Pt. 838 Pg. 564 at 587-588, Paras H-E (CA).
It is equally worthy of note that in the declaration of redundancy, the principle of “last in, first out” shall be adopted in the discharge of the particular category of workers affected subject to factors of relative merit, including skill, ability and reliability. See Section 20(1) of the Labour Act.
An employer who wants to declare redundancy shall use his best endeavours to negotiate redundancy payments to any discharged worker who is not protected by the Regulations made by the Minister of Labour under Section 20(2) of the Labour Act. (I am not aware if the minister has made any regulations in this regard, there may be a need to enjoin the Minister to take appropriate action in complying with this statutory duty).
The entitlements of an employee declared redundant will be as agreed between parties in the terms of contract. See ISHENO v. JULIUS BERGER (NIG) PLC (2003) 14 NWLR Pt. 840 Pg. 289 at 305-306, paras H-D and PEUGEOT AUTOMOBILE (NIG) LTD v. OJE & ORS, SUPRA. Thus, the rule of damages relating to cases of termination of employment do not apply to claims for redundancy payment. See ODINKENMERE v. IMPRESIT BAKOLORI (NIG) LTD (1995) 8 NWLR Pt. 411 Pg. 52 at 64 Paras C. – Per H. M. Ogunwumiju, JSC.”
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