➥ CASE SUMMARY OF:
Central Bank of Nigeria & Anor. V. Mrs. Agnes M. Igwillo (SC.83/2002, 4th May 2007)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Employment;
Statutory flavour;
➥ CASE FACT/HISTORY
The brief facts of the case, as set out in the pleadings and evidence led at the trial, are that the plaintiff, Dr. Victor Igwillo, was a holder of Ph.D. in Library and Information Sciences. He started his working career at the Ahmadu Bello University Library. From there he joined the Anambra State University of Technology (ASUTECH) before joining the 1st appellant as Deputy Librarian. His case was that the post was advertised and he applied, was interviewed and offered the appointment by the 1st appellant, the Central Bank of Nigeria. The plaintiff/respondent contended that before joining the 1st appellant, it was agreed that he would be accepted on transfer of service, having served 18 years with his previous employers. This is said to be evidenced by a letter to that extent admitted at the trial as exhibit C. But within three months of joining the 1st appellant, the respondent said he was alleged to have committed a grave misconduct. He was then suspended and his matter was referred to the Disciplinary Committee of the 1st appellant bank. The respondent said he appeared before the committee and there he denied the allegation made against him in an unsigned anonymous petition written against him. The allegation was that he acquired for the library used and mutilated books, many of which were of no use for the Bank’s library. He said the Committee found no merit in the allegation made against him in the said anonymous petition. But while he was waiting for apologies, he received a letter of termination of his employment. The letter, dated 4th February, 1993 made the termination of the appointment to take effect from 8th May, 1992 the date on which his suspension took effect. No reason was given and no reference was made as to the outcome of the Disciplinary Committee which looked into the allegations made against the respondent and on which the suspension order imposed on the man was based.
This action was instituted at Lagos High Court by Dr. Victor Igwillo, now deceased, in suit No. LD/1227/93. His claim, as set out in paragraph 32 of his amended statement of claim was for a declaration that the termination of his appointment with the 1st appellant is wrongful, illegal and unconstitutional; and the sum of ₦14.5 million being special, aggravated and/or general damages suffered for the wrongful and unlawful termination of appointment or, in the alternative, a reinstatement to his job and payment of his accrued salaries and allowances from the date of suspension till the date of reinstatement. Pleadings were filed and exchanged and the trial took place before Ope-Agbe, J.
The plaintiff gave evidence at the healing and tendered a number of documents. The defendants, now appellants denied the claim and in paragraph 10 of their reply to the further amended statement of claim, counter-claimed for “the sum of ₦450,000 per annum being the value for the occupation of the 1st defendant’s premises from 4th February, 1993 till plaintiff’s vacation of same.” At the conclusion of the trial, the learned trial Judge held that there was no merit in the plaintiff’s claim and the suit was dismissed. The counter-claim was also dismissed. The plaintiff was dissatisfied with the judgment of the trial High Court. He filed an appeal against it to the Court of Appeal (hereinafter referred to as the court below). The court below found that there was merit in the appeal and allowed it.
The appellants were not satisfied with the judgment of the court below and the present appeal was filed against the said verdict.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the court below was right when it looked beyond the terms of the contract of employment and the evidence on record in deciding the issue whether the termination of the respondent’s contract of employment with the 1st appellant was wrongful?
RESOLUTION:
[THE RESPONDENT SUSPENSION AND TERMINATION WAS DONE IN BAD FAITH; DID NOT COMPLY WITH STATUTORY PROVISIONS
‘ASUTECH wrote to the 1st appellant that it would release the respondent only if the appellant agreed to accept the respondent on transfer of service. The letter dated 4th December, 1991 is exhibit 1. The 1st appellant’s reply dated 13th December, 1991 (exhibit 2A) was that it was willing to accept the respondent on transfer of service. It can be assumed that the respondent was released by ASUTECH to report for duty at the 1st appellant on receipt of the 1st appellant’s letter, exhibit 2A. He in fact assumed duty on 16th January, 1992. The record of service was sent by ASUTECH to the 1st respondent under a covering letter dated 15th January, 1992. The contention of the appellants, therefore, that the respondent was to be on probation for a period of two years as contained in the letter of offer (exhibit A) can definitely not stand. I believe and hold that that condition had been varied by the aforementioned exchange of letters. Again, as I already stated above, the 1st appellant is a Federal institution created by statute. It follows therefore that it must carry out its activities in line with its governing laws. The laws regulating the appointment and discipline of its workers must be complied with strictly as their employments are with statutory flavour. Every action taken on behalf of the 1st appellant is therefore expected to be done in good faith, free of bias, or nepotism. Similarly, every provision of the Banks Staff Manual (exhibit U) must be strictly complied with by the bank when dealing with every member of its staff. Thus, in the instant case, section 5 of Chapter 5 of the said Staff Manual (exhibit U) provides that the 1st appellant is required to suspend a staff member only where a prima facie case of a serious nature has been established against the staff member by a court or by an Investigation Committee. This provision was breached in the respondent’s case. The letter suspending him without pay dated 8th May, 1992 was issued when it was not shown that a prima facie case of a serious nature was established against the respondent by a court or an Investigation Committee. It was after he had been suspended that the 1st appellant decided to refer the matter to the Investigation Committee. The said Investigation Committee’s first contact with the respondent was through a letter dated 22nd May, 1992 in which the respondent was invited to send a written defense to the allegations made against him in the unsigned anonymous petition. The respondent sent his reply as requested. Another letter (exhibit E2) was again written to him. He was in that letter elated 3rd June, 1992 invited to appear before the Investigation Committee on 4th June, 1992. The respondent appeared before the said Committee on that day as required in the letter. He was on that day cleared by the Committee or the allegations made in the said petition against him. It was after the above scenario that the 1st appellant now turned round to write its letter of termination of the respondent’s appointment which was backdated to the date that his suspension took effect and to which a cheque for one month’s salary said to be in lieu of notice was attached. It may also be mentioned that section 6 of Chapter 5 of the Staff Manual provides that the letter of suspension in cases of officers on Grade Level 12 and above must be issued and signed by the Governor and that such suspension should not last for more than one month. That provision was also breached in that the letter in question was signed by an officer on Grade Level 14 as the respondent and not by the Governor and the suspension lasted for eight months instead of the maximum of one month prescribed in the Staff Manual. The effect of the breaches of the aforementioned provisions of the Staff Manual is that the suspension order imposed on the respondent was null and void and of no effect. Similarly, the decision to terminate the respondent’s appointment and treat his case as that of a new recruit was made in bad faith and in utmost disregard of the evidence proved in the respondent’s case.’
‘The respondent pleaded and led evidence to the effect that the 2nd appellant was the mastermind against the mischief against him. The man did not testify at the hearing. The serious allegation was therefore not controverted. It must be made abundantly clear that the 1st appellant is a Federal institution constituted and regulated by statute. Every member of staff is expected to carry out his function in accordance with the law that set up the institution. In the result, I hold that there is no merit in the appeal. As I have stated above, the respondent’s employment is one with statutory flavour. Where, therefore a case of wrongful termination of such appointment is made out, as in this case, the correct order to be made is one reinstating him. But the man is now dead. He died while this appeal was pending in this court and his widow was substituted to continue with the defence of the appeal. An order reinstating him to his post can therefore not be made.’]
.
.
.
✓ DECISION:
‘An order reinstating him to his post can therefore not be made. In that case, the order of court below: (1) The order for reinstatement of the respondent made by the court below is affirmed and remained effective till the respondent’s death on 18th July, 2002. (2) The sum of ₦20,112,400 shall be paid to the respondent being arrears of salary and allowances from the date of his suspension on 8th May, 1992 up to September, 2000 based on the calculations set out in paragraph 14 of the counter affidavit deposed to and filed in respect of the appellants’ motion for stay of execution filed at the court below on 21st September, 2000 and which the said court ordered to be deposited in an interest yielding separate account in the 1st appellant’s bank in its ruling on the motion for stay dated 22nd May, 2001 together with the interest that has accrued on the said amount. (3) Arrears of salary and allowances from September, 2000 up to 18th July, 2002 when the respondent died based on the same principle adopted in arriving at the amount specified in the said paragraph 14 of the same counter affidavit is also to be paid to the respondent. (4) Also to be paid to the respondent is all entitlements due to an officer of the respondent’s rank who dies in office. The respondent is entitled to costs at the High court assessed at ₦8,000; costs in the Court of Appeal assessed at ₦8,000 and ₦10,000 in this Court.’
➥ FURTHER DICTA:
⦿ THREE CATEGORIES OF EMPLOYMENT
The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer: and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. — S.A. Akintan JSC.
⦿ WHEN IS EMPLOYMENT SAID TO BE GOVERNED BY STATUTE
An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116. — S.A. Akintan JSC.
⦿ WHERE EMPLOYEE EMPLOYMENT IS REGULATED BY STATUTE, BUT WRONGFULLY TERMINATED
Where an employee’s service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition, damages representing his salaries during the period of his purported dismissal: See Shitta-Bey v. The Federal Public Service Commission, supra; Olaniyan v. University of Lagos, supra; and Udo v. Cross River State Newspaper Corporation, supra. This court clearly stated the legal position of public servants in Nigeria in the Olaniyan v. University of Lagos case, supra. It is that public servants in the established and pensionable cadre of the Federal Government Service do not hold their offices at the pleasure of the Federal Government. Rather, their appointments are based upon rules and regulations, statutes or memoranda of appointment. It was also clearly stated in the same case that the University of Lagos and the University Council, both being creatures of statute, cannot act except within and under the powers conferred on them by the relevant statute. — S.A. Akintan JSC.
⦿ WHERE A CONTRACT IS IN WRITING, IT CAN ONLY BE VARIED BY WRITING; READING DOCUMENTS TOGETHER
where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and, transferring his service from one body to another body. See the cases of John Holt and Co. (Liverpool) Ltd. v. Stephen Lafe (1938) 15 NLR 14 and Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt. 249) 643 at 649. Again, a contract which must in law be in writing, can only be varied by an agreement in writing. See the case of Morris v. Baron and Co. (1918) A.C. 1 at 39. Also settled, is that in the interpretation of a contract involving several documents, the documents, must be read together. See the case of Royal Exchange Assurance (Nig.) Ltd. and 4 Ors. v. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 669 C.A. — Ogbuagu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
S.A. Akintan, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
