IN THE SUPREME COURT OF NIGERIA
HOLDING AT ABUJA
ON FRIDAY THE 1ST DAY OF FEBRUARY, 2019
BEFORE THEIR LORDSHIPS
MARY UKAEGO PETER-ODILI – Justice, Supreme Court
KUMAI BAYANG AKAAHS – Justice, Supreme Court
KUDIRAT MOTONMORI OLATOKUNBO KEKERE- EKUN – Justice, Supreme Court
AMIRU SANUSI – Justice, Supreme Court
EJEMBI EKO- Justice, Supreme Court
SC, 63/2010
BETWEEN:
1.KWARA STATE JUDICIAL SERVICE COMMISSION
2.HON. JUSTICE TIMOTHY OYEYEPO, Chairman, Kwara State Judicial
Service Commission
3.MRS. OLALERE, Secretary Judicial Service Commission
4.ATTORNEY-GENERAL OF KWARA STATE
AND
MISS YERUNDE ZAINAB TOLANI…………………….RESPONDENT
JUDGEMENT
(DELIVERED BY MARY UKAEGO PETER-IDULI, JSC)
This is an appeal against the judgment of the Court of Appeal of Court below or Lower Court, Coram: Sotonye Denion-West, I.I. Agube, JJCA and C. C. Nweze JCA (as he then was) delivered on the 20th day of January, 2009.
The appellant before this court were the respondents before the court below and at the trial court were plaintiff, while the respondents herein were defendants at the trial High Court presided over by A. A. Adebara J.
The claims of the plaintiff now respondent are stated hereunder, viz:-
1. A declaration that the purported withdrawal (termination) of the plaintiff’s appointment as Magistrate Grade II with the 1st defendant by the defendants through their letter of 8/2/2005 is without any justification known to law, unlawful, ultra vires, illegal, oppressive, uncivilized, barbaric, vicious, unconstitutional and null and void and of no effect.
2. An order of the court setting aside the defendant’s letter dated 8/2/2005 purporting to withdraw or terminating the plaintiff’s appointment as Magistrate Grade II with the 1st defendant.
3. A declaration that the plaintiff is still a Magistrate Grade II in the employment of the 1st defendant and she is entitled to be paid salaries, allowances and all entitlements appertaining to and due to the office of a Magistrate Grade II with the 1st defendant.
4. An order reinstating the plaintiff to her position as a Magistrate Grade II with the 1st defendant.
5. An order of the Court directing the defendants to pay to the plaintiff her salaries, allowances and all entitlement as Magistrate Grade II with the 1st defendant with effect from 27/12/2004.
6. An order of injunction restraining the defendants, their servants, agents and privies and other person(s) claiming through or under and or succeeding the defendants from unlawfully and unconstitutionally, withdrawing, terminating and or in any manner or way tempering with, obstructing the commission of the breach, of the plaintiff’s appointment at Magistrate Grade II with the defendant.
FACT BRIEFLY STATED:
The respondent herein was employed by the appellant as a Magistrate Grade II,. Shortly after her employment the appellants received a petition from ne Abdul Rasaq Tunde Raji alleging that the respondent misrepresented her marital status. The appellant sent the petition to the respondent for her response in line with the rules of fair hearing.
The respondent’s reply was not satisfactory to the appellant who terminated her employment which was still on probation.
The respondent, dissatisfied, approached the trial court to challenge the termination and or withdrawal of her appointment. The trial court held inter alia that the termination of the respondent’s appointment was wrongful and she should be paid her salaries, allowances and other entitlements for the period of 27/12/2004 up to 11/2/2005 for which she legitimately worked before her appointment was wrongfully terminated. The 1st appellant herein was also ordered to pay the respondent one month salary in lieu of notice being the reasonable length of notice she would have been entitled to bring her contract of employment with the 1st appellant to the end. Dissatisfied with the judgment of the lower court, the respondent herein appealed to the Lower Court.
On the 12th day of November, 2011 date of hearing, learned counsel for the appellants and DPP of the Ministry of Justice, Kwara State, J. A Mumini Esq. adopted the brief of argument of the appellants filed on the 24/6/2011 in which were raised three issues for determination, viz:-
a) Whether the Lower Court was right to have come to the conclusion that the appointment of the respondent was terminated on account of her marital status. (This relates to Ground 1 of the appellant’s Ground of Appeal).
b) Whether the Lower court was right to have held that the employment of the respondent is one clothed with statutory flavour. (This relates to Ground 2 of the appellants Grounds of Appeal).
c) Whether the learned Justices of the Court of Appeal were right to have reinstated the respondent in the circumstances of this case.
(This relates to Ground 3 of the appellant’s Grounds of appeal).
Learned counsel for the respondent, Salman Jawondo Esq. adopted the brief of argument of the respondent filed on 11/10/2011 and in turn identified two issues for determination which are as follows.
1. Whether or not the Lower court was not right in its decision that the termination or withdrawal of the respondent’s employment by the appellants on ground of misrepresentation of her marital status was unlawful and therefore void.
2. Whether or not the Lower court was not right in holding that the respondent’s employment enjoined statutory flavor and she is therefore entitle to re-instatement.
I shall utilize the third issue of the appellant, issue © in the determination of this appeal.
ISSUE C:
Whether the learned Justices of the Court of Appeal were right to have reinstated the respondent in the circumstances of this case.
Learned counsel for the appellant contended that the court below reached a conclusion not supported by the evidence before the trial court as both oral and documentary evidence showed a temporary appointment as Magistrate Grade II by virtue of Exhibit 1, a petition in the form of Exhibit 10, 4, 5, 6 and 9 etc. That the peculiar circumstance of the nature of the respondents employment does not cloth same with statutory flavor.
Mr. Mumini of counsel for the appellant state on tat the fact that an organization or authority which is an employer like the 1st appellant herein is a statutory body does not mean that the conditions of service of its employees must be of a special character ruling our the incidence of a mere master and servant relationship as the court must confine itself to the terms and contract of service between the parties. He cited Adegbite v College of Medicine on the ground that the reasons are not correct once the conclusion or decision is correct. See the State v Ogbubunjo (2001) 1 SCNJ 86 at 106.
That the correct meaning of employment with statutory flavor is shjown in the case of Imoaleme v West African Examinations Council (199) 9 NWLR (Pt.265) 303 and from that can be seen that the 1st appellant is a creation of the constitution and the respondent’s employment clothed with statutory flavor and not master and servant. He cited the case of the Registered Trustees of the Planned Parenthood Federation of Nigeria v Dr. Jimmy Shogbola (2005) 1 WRN 153 at 171-172; E.P. Iderima V River State Civil Service Commission (2005) 7SC (Ptr.11) 135 at 151 etc. That the appeal should be dismissed.
The stance of the appellant stems from the following points, that the Lower court was wrong to have held that the appointment of the respondent was withdrawn because of her marital status and the appointment of the respondent does not enjoy statutory flavor and so the respondent was not entitled to reinstatement.
On the other hand, the respondent took the position that the employment with the appellant was neither temporary nor probationary as it was clothed with statutory flavor and so the ‘withdrawal’ or termination of the respondent’s appointment by the appellants vide Exhibit 5 is not only wrongful but also unlawful being in violation of the Judicial Service Commission Regulations 1980 and so respondent was entitled to re-instatement and the other reliefs granted by the court below.
On the divergent stand-points of the two courts below, I shall go to pages 117-121 of the record to quote what the learned trial judge said and it is as follows:-
“No doubt, in the law of Master and Servant, employment falls into three categories, viz: (1) A pure Master and Servant relationship under common law;
(2) employment where office is held at pleasure and
(3) employment protected by statute. See IDERIMA v River state Civil Service Commission (2005) 7 SC (Pt.111) 135 aat 151; Ridge V Baldwin & Ors (1964) A C 40; Olarewaju v Afribank (Nig.) Plc (2001) 7 SC (Pt. 111) 1, (2001) 13 NWLR (Pt. 731) 691 at 705; OLaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599. With regard to the instant case, one may be tempted to hold that claimant comes under the third category i.e. the employment protected by statute apparently because that 1st defendant is a creation of constitution. See Section 197 and Pat II of the Third Schedule to the Constitution of Federal Republic of Nigeria, 1999. See also the case of Ziideh v River State Civil Service Commission (2001) FWLR (Pt. 460 821 at 825-826. In the case of Imoloame v West African Examination Council (1992) 9 NWMLR (Pt.265) 303 at 317, Karibi-Whyte JSC dealing with when an employment is said to be clothed with statutory flavor said:-
“…there is an employment with statutory flavor when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulations, derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavor”. Two of the vital ingredients that must co-exist before a contract of employment may be aid to import statutory flavor include the following:
1. The employer must be a body set up by statute.
2. The stabizing statute must make expresses provision regulating he employment of the staff of the category of the employee concerned especially in matters of discipline.
This appeal lacks merit and I have no difficulty in dismissing it as I affirm the decision and orders of the Court of Appeal.
I make no orders as to costs
Appeal Dismissed.
MARY UKAEGO PETER-ODILI – Justice, Supreme Court
REPRESENTATIONS
J.A. MUMINI (DPP) Kwara State for Appellant and with him is A.B. Daramola Esq.
Salman Jawondo for Respondents and with him are: Abduwasiu Lawal and Andrew Apeh.
