CORAM

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Ita George Mbaba Justice Court of Appeal

James Gambo Abundaga Justice Court of Appeal

Abdul-Azeez Waziri Justice Court of Appeal

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PARTIES

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NIGERIAN GAS PROCESSING AND TRANSPORTATION COMPANY LIMITEDAPPELANT(S)

APPELLANTS 

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JOHNSON OKORO RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, LABOUR LAW, CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, CONTRACT LAW, STATUTORY INTERPRETATION, CIVIL PROCEDURE, REMEDIES, PUBLIC SERVICE LAW

 

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SUMMARY OF FACTS

This case revolves around the termination of the Respondent’s (Johnson Okoro’s) employment with the Appellant (Nigerian Gas Processing and Transportation Company Limited). The Respondent was employed by Nigerian National Petroleum Corporation (NNPC) and redeployed to the Appellant, a subsidiary of NNPC. Following a fire incident at the Appellant’s office in Ughelli, an investigation panel was set up. The Respondent claimed he helped to put out the fire and save company vehicles. However, on December 18, 1991, the Appellant terminated the Respondent’s employment through a letter stating that his services were “no longer required,” without providing any specific reason for the termination.

The Respondent filed a suit at the Delta State High Court, claiming that his termination was null and void as it was contrary to his contract of service and violated his right to fair hearing. He alleged that the termination was based on the report of the investigation panel regarding the fire incident, though the termination letter did not mention this. The Respondent sought reinstatement or, alternatively, payment of all his salaries and benefits until his retirement age of 60 years in December 2007.

The High Court ruled in favor of the Respondent, declaring the termination unlawful and ordering his reinstatement with payment of all arrears of salaries and benefits, or alternatively, payment of all salaries and entitlements until his retirement age. Dissatisfied with this judgment, the Appellant appealed to the Court of Appeal.

 

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HELD

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1. The appeal was dismissed and the judgment of the High Court was affirmed.

2. The Court held that the termination of the Respondent’s employment was unlawful as it violated the procedures laid down in the Appellant’s condition of service for junior staff.

3. The Court found that there was statutory flavour in the Respondent’s employment as the Appellant was a subsidiary of NNPC (a statutory corporation) and the Respondent’s employment was permanent and pensionable.

4. The Court held that although an employer generally has the right to terminate employment without giving reasons, this principle does not apply to employment with statutory flavour.

5. The Court determined that the termination was connected to the fire incident investigation, despite the Appellant’s denial, and that the Respondent was not accorded fair hearing before the termination.

6. The Court ruled that the High Court did not grant both the main and alternative reliefs together, but rather gave the alternative relief only if the main relief of reinstatement was not implemented.

7. Costs of N200,000 were awarded in favor of the Respondent.

 

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ISSUES

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1. Whether from the Respondent’s pleadings, there was any issue on there being no existing reason for termination as stated in the termination letter, and whether the Appellant ought to give reasons for terminating the Respondent’s employment.

2. Whether the Appellant has to prove misconduct on the part of the Respondent before terminating his employment.

3. Whether the parties and the Court are bound by the pleadings, and whether the learned trial Judge could consider issues raised in counsel’s final address which were not pleaded.

4. Whether the Respondent could be reinstated by the lower Court, despite there being no statutory flavour in the Appellant’s condition of service for junior staff.

5. Whether reliefs sought in the alternative can be granted together.

WHAT WAS HELD

 

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RATIONES DECIDENDI

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TERMINATION OF EMPLOYMENT WITH STATUTORY FLAVOUR — OBLIGATION TO FOLLOW PRESCRIBED PROCEDURES

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“The law is trite that an employer reserves the right to hire and fire his servant, at will, provided he complies with the conditions stated in the employment contract. And where the termination of employment (or even dismissal) does not state any reason to justify the termination, the employer is not under any obligation to adduce any reason(s) to found the termination, apart from saying that the employee’s services are no longer required! Once the termination complies with the terms of contract, for instance giving of the required notice of termination (or payment of salary, in lieu of the Notice) the termination is protected.” – Per ITA GEORGE MBABA, J.C.A.

 

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EMPLOYMENT LAW, PUBLIC SERVICE LAW, STATUTORY INTERPRETATION STATUTORY FLAVOUR IN EMPLOYMENT — DEFINITION AND APPLICATION

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“Statutory flavour often refers to contract of employment involving civil servants, be it of the Federation, State or Local Governments. It also involves statutory corporations and companies or institutions, wholly owned by the governments. It concerns an employment that is governed by a statute or regulation, rather than common law. This means that the employment (and termination of employment) is protected by relevant statute, and rules, and regulations, as part of the terms and conditions of the employment.” – Per ITA GEORGE MBABA, J.C.A.

 

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DISCIPLINARY PROCEDURES — NECESSITY OF FOLLOWING PRESCRIBED STEPS

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“By the provisions of the Appellant’s condition of service for junior staff, Clauses 14.2 to 14.3 state the steps to be taken to discipline an erring staff, from query to reply to query, to investigation and report therefrom, to implementation of the report by the employer. The trial Court had observed that the Appellant had breached the provisions of this regulation by not querying him to elicit his response; that the investigation had come first, during which the Respondent was condemned before he was asked to state his side of the matter.” – Per ITA GEORGE MBABA, J.C.A.

 

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TERMINATION OF EMPLOYMENT — PRETEXTUAL REASONS AND FAIR PROCEDURE

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“In a rather mischievous manner, Appellant suddenly terminated the appointment of Respondent, slyly, without linking the termination letter to the report of the Investigation Panel… Of course, it was crystal clear that the termination was not unconnected with the Report of the Investigation Panel on the fire incident, just as the trial Court held. Appellant was only playing safe and being economical with the truth when it claimed that the termination had nothing to do with the fire incident.” – Per ITA GEORGE MBABA, J.C.A.

 

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PROCEDURAL FAIRNESS IN EMPLOYMENT TERMINATION — REQUIREMENT OF FAIR HEARING

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“The trial Court had observed that the Appellant had breached the provisions of this regulation by not querying him to elicit his response; that the investigation had come first, during which the Respondent was condemned before he was asked to state his side of the matter.” – Per ITA GEORGE MBABA, J.C.A.

 

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DISTINCTION BETWEEN ORDINARY EMPLOYMENT AND EMPLOYMENT WITH STATUTORY FLAVOUR

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“Such clandestined termination of appointment can only be sustained in a purely master/servant relationship where the master calls the shots, cares, less about the feelings and employment protection/security of the servant. Employment with statutory favour does countenance such brutality and insensitivity to job security.” – Per ITA GEORGE MBABA, J.C.A.

 

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MASTER-SERVANT RELATIONSHIP — LIMITATIONS IN STATUTORY EMPLOYMENT

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“Of course, the employee is under the same rule and can withdraw his service, upon giving a valid notice of withdrawal of service or payment of appropriate salary, in lieu of Notice. However, the above law applies, generally, in a purely master/servant relationship, where statutory flavour is absent in the contract.” – Per ITA GEORGE MBABA, J.C.A.

 

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ALTERNATIVE RELIEFS — PROPER INTERPRETATION AND APPLICATION

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“I do not think that procedure is in accord with the conditions of service nor with the Rules of Natural Justice. In a situation like that the Plaintiff has an uphill task to change the decision of the investigation panel, which was merely confirmed by subsequent bodies set up. It is difficult to find or confirm any misconduct levelled against the plaintiff. At any rate I am of the view that the procedure adopted is wrong and the Plaintiff has not been accorded fair hearing and the decision cannot stand and as such the termination is in breach of the contract of parties, and also, a breach of natural justice.” – Per ITA GEORGE MBABA, J.C.A.

 

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NATURAL JUSTICE — APPLICATION IN EMPLOYMENT DISCIPLINARY PROCEDURES

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“I do not think that procedure is in accord with the conditions of service nor with the Rules of Natural Justice. In a situation like that the Plaintiff has an uphill task to change the decision of the investigation panel, which was merely confirmed by subsequent bodies set up. It is difficult to find or confirm any misconduct levelled against the plaintiff. At any rate I am of the view that the procedure adopted is wrong and the Plaintiff has not been accorded fair hearing and the decision cannot stand and as such the termination is in breach of the contract of parties, and also, a breach of natural justice.” – Per ITA GEORGE MBABA, J.C.A.

 

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RECIPROCAL RIGHTS IN EMPLOYMENT CONTRACTS — TERMINATION PROVISIONS

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“An employee shall be free at any time, with or without stating any reason, to resign his appointment with the corporation upon giving due notice. The corporation has a reciprocal right to terminate an employee’s appointment upon giving him due notice.” – Per ITA GEORGE MBABA, J.C.A.

 

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BURDEN OF PROOF — OBLIGATION TO REBUT EVIDENCE

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“The Plaintiff had given evidence that he was a public officer and his employment was permanent and pensionable and he would not retire until the age of 60 years, but for the termination; that there was no rebuttal of the above evidence by the defendant!” – Per ITA GEORGE MBABA, J.C.A.

 

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EMPLOYMENT WITH PUBLIC CORPORATIONS — NATURE AND PROTECTION

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“The trial Court had noted that, generally, an employer can terminate the employment of his servant, with good or bad reason or without giving any reason, but that there are exceptions, in respect of employment governed by statutory provision, like employment in civil service or statutory bodies, where termination must follow the provisions of the relevant statutes.” – Per ITA GEORGE MBABA, J.C.A.

 

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PAYMENT IN LIEU OF NOTICE — REQUIREMENTS FOR VALID TERMINATION

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“Any employee may resign his appointment by paying the equivalent amount of his basic salary to the Corporation, in lieu of notice. Similarly, the Corporation will pay the sum equal to the basic salary of any employee in lieu of notice of termination of appointment.” – Per ITA GEORGE MBABA, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Nigerian National Petroleum Corporation Act

• Labour Act

• Rules of Natural Justice

• Delta State High Court Civil Procedure Rules

 

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