Kwara State Judicial Service Commission & Ors. v. Yetunde Zainab Tolani (2019) – SC

➥ CASE SUMMARY OF:
Kwara State Judicial Service Commission & Ors. v. Yetunde Zainab Tolani (2019) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC.63/2010

➥ JUDGEMENT DELIVERED ON:
Friday, 1st February, 2019

➥ AREA(S) OF LAW
Contract of statutory flavour;
Dismissal of a magistrate.

➥ NOTABLE DICTA
⦿ TWO INGREDIENTS TO ESTABLISH STATUTORY FLAVOUR CONTRACT
However, it should not be mistaken that once a company, corporation or government agency is set up by statute, all the employees thereof ipso facto became children of statute to the extent that their individual agreement of service with the employer automatically becomes contract with statutory flavour. Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavour includes the following:- 1. The employer must be a body set up by statute. 2. The stabilizing statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. See in this regard Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 992; Salami v New Nigerian Newspaper Ltd (1999) 13 NWLR (Pt. 634) pg 315; CBN v Archibong (2001) FWLR (Pt.58) 1032 at 1056; Udemah v Nigerian Civil Corporation (1991) 13 NWLR (Pt.180) 477; Fakuade v O.A.U Complex Management Board (1993) 5 NWLR (Pt.291) 47. — M.U. Peter-Odili, JSC.

⦿ WRONGFUL TERMINATION VS UNLAWFUL TERMINATION
In wrongful termination or dismissal, the termination/dismissal is complete and the defendant is only liable in damages, while in unlawful termination/dismissal, there is no such termination or dismissal at all as it would be pronounced null, void. See Imoloame v WAEC (supra) at 305; Kabelmetal (Nig.) Ltd v Ativie (2001) FWLR (Pt.65) 662 at 674- ,675. — M.U. Peter-Odili, JSC.

⦿ NOT EVERY ERROR IN A JUDGEMENT WILL VITIATE IT
It is not every mistake or error in a judgment or decision that could vitiate such a decision as the mistake has to be shown to have led to a miscarriage of justice or materially or substantially affected the decision making to have such impact. See Owhonda v Ekpechi (2003) 9-10 SC 1 at 21; Mrs. Jumbo v R. S. H. P. A. D. A. (2005) 5 SC (Pt.11) 102 at 112. — M.U. Peter-Odili, JSC.

⦿ SUPREME COURT IS MORE CONCERNED ABOUT THE DECISION, THAN REASON OF COURT OF APPEAL
Again for emphasis is that an appellate Court such as this Apex one, will not reverse the decision of the Court below simply because the conclusion and decision were reached from a wrong reason. This is so because once the decision is correct the wrong channel or route through which that decision was made would not scuttle the said conclusion. See The State v John Ogbubunjo (2001) 1 SCNJ 86 at 106 per Onu JSC. — M.U. Peter-Odili, JSC.

⦿ WHO IS A PUBLIC OFFICER?
A public officer is one in the public service of the government of the Federation or State and as defined under the heading Public Service of the Federation’ or of the State as per Section 277 (1), (a), (b), (c), (d), (e), (f), (g) of 1979 Constitution. — M.U. Peter-Odili, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Mary Ukaego Peter-Odili, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Mumini.

⦿ FOR THE RESPONDENT
Salmon Jawondo Esq.

➥ CASE HISTORY
The respondent was employed by the Kwara State Judicial Service Commission as a Magistrate Grade ll. But following a petition written by one Abdulrasak Tunde Raji that she was married which she and her father, Chief Lamidi Adeshina Tolani, vehemently refuted her appointment was withdrawn. And when her plea for a review of the withdrawal of the appointment fell on deaf ears, she filed an action in Court seeking a nullification of the withdrawal of the appointment and her reinstatement as well as payment of her salaries, allowances and all entitlement as Magistrate Grade II with effect from 27 December, 2004. She partially succeeded at the High Court and appealed further to the Court of Appeal and her appeal was allowed; hence the further appeal by the respondents/appellants to the Supreme Court.

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 trial Court, the Respondent herein appealed to the Lower Court. The Court of Appeal upheld the Appeal in full.

This is an appeal by the Defendant.

➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]

I. Whether the learned Justices of the Court of Appeal were right to have reinstated the respondent in the circumstances of this case?

RULING: IN RESPONDENT’S FAVOUR.
A. “On the question whether or not the employment in issue enjoys statutory flavour, I need to state very humbly too that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:- (1) The employer must be a body set up by the constitution or statute and; (ii) The statute or regulations made pursuant to the constitution or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline. It can be seen undoubtedly that the two ingredients are present in the employment under discourse.
1. 1st appellant is a creation of Section 197(1)(c) of and Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 by virtue of which 1st appellant is vested with the power to appoint, dismiss and exercise disciplinary control over its staff including magistrates.
2. The 1st appellant, pursuant to the powers conferred on it by Paragraph 6 (c) of Part II of the Third Schedule to the Constitution made the Kwara State Judicial Service Regulations 1980 which among other things regulate the appointments, promotion, dismissal and disciplinary measures against the employees of the 1st appellant such as Magistrates.
3. The appellant was appointed a Magistrate Grade II on Grade level 10 by the 1st appellant vide a letter of 23/12/04 which appointment the respondent accepted by letter of 24/12/04 and she accordingly assumed duties on 27/12/04.
4. The office or position of a Magistrate is a creation of the combined effect of the provisions of Section 197 (1) (c) of the 1999 Constitution and Part II of the Third Schedule thereto, Sections 4 and 8 of the Criminal Procedure Code Law, Cap43, Laws of Kwara State 1994.
5. The office or position of a Magistrate is of a permanent nature with its functions, duties and powers defined or prescribed by Sections 9, 10, 12 (1) 13, 15, 16, 17 and Appendix A’ to the Criminal Procedure Code Law of Kwara State Cap 43, Laws of Kwara State 1994.
6. By virtue of (3) (4) and (5) above, the respondent is a Senior Staff of the appellants.
7. As a Senior Staff with the 1st appellant, which is a creation of Constitution, the respondent, as a Magistrate is a Public Officer as defined by Section 318 (1) of the 1999 Constitution.
8. I agree with learned counsel for respondent that from the above highlighted undisputed facts, it is clear that the respondent’s employment is clothed with statutory flavour.”

B. “The Blacks Law Dictionary, by Bryan A. Garner 8th Edition, page 1644 at page 1574 had defined “WRONGFUL” and “UNLAWFUL” to be thus:- “Wrongful” (i) Characterized by unfairness or injustice, (ii) Contrary to law or unlawful (wrongful termination)” and “Unlawful” (1) Not authorised by law, illegal (2) Criminalty punishabte (3) Involving moral turpitude”. The definitions above are so weighty that they cannot, applying as in this case at hand be treated with levity, or in a simplistic manner and so since the words “wrongful’ and “unlawful” are ingrained within the termination or withdrawal from service of the respondent by the appellants, there is no escaping the fact that the complaint by the accusers or appellants must be ventilated in public wherein the respondent would be assured of a fair trial and the necessity for a prior judicial determination before the termination or withdrawal of the service could be visited on her as what she is accused of in the matter of lying on oath is a commission of a criminal offence and it must be dealt with according to law. I am fortified in the case of I. H. A. B. U. H. M. B. v ANYIP (2011) 5 SC (Pt.1) 54 at 66, 67; F.C.S.C. v Laoye (1989) 2 NWLR (Pt.106) 652 at 706-707.”
.
.
.
✓ DECISION:
“The conclusion as I see it is that there is no sporting chance to accede to what the appellants are urging the Court as the Court of Appeal rightly made its findings from which it came to the correct conclusion that the respondent had a raw deal and that Court had no hesitation in saying so as I see no ground to go against what the Lower Court did. 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.”

➥ MISCELLANEOUS POINTS
Per Ejembi Eko, JSC: “It is most preposterous and very perverse for the Appellant in their decision to terminate the Respondent’s appointment to rely on the unfounded rumour peddled by an anonymous petitioner, Abdul-Rasak Tunde Raji. That is what made their decision very unreasonable, particularly in the face of the undiscredited evidence marshaled by the Respondent in her defence, even though she was under no obligation to rebut what had not been proved or substantiated against her. The JSC had definitely let down not only the Respondent, but the entire body of the Magistrates holding their appointment and discharging their functions under it, who fervently looked up to their employer for support and protection in their arduous and hazardous lines of duty.”

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ WHEN IS AN EMPLOYMENT CLOTHED WITH STATUTORY FLAVOUR
In the case of Imoloame v West African Examination Council (1992) 9 NWLR (Pt.265) 303 at 317, Karibi- Whyte JSC dealing with when an employment is said to be clothed with statutory flavour said:- “…there is an employment with statutory flavour 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 flavour”. (See also Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 1004; Shitta-Bey v Federal Civil Service Commission (1981) 1 SC 40; Olaniyan v University of Lagos (2001) FWLR (Pt.56) 808; (1985) 2 NWLR (Pt.9) 599; Eperokun v University of Lagos (1986) 4 NWLR (Pt.24) 162; Professor Dupe Olatunbosun v Niser (supra); Dr. Bamgboye v University of Ilorin (1999) 10 NWLR (Pt.622) 290)

⦿ THREE FACTORS THAT CO-EXIST TO CONSTITUTE A PUBLIC OFFICE
The Registered Trustees of the Planned Parenthood Federation of Nigeria v Dr. Jimmy Shogbola (2005) 1 WRN 153 at 171-172:- “The three factors that must co-exist to constitute a public office namely that the office was created by the Constitution, statute or other enabling legislation, secondly that its function, duties and powers are as defined by law and other regulations; and thirdly, that the position must show some permanency.”

⦿ NATURE OF EMPLOYMENT STATUTE – WRONGFUL DISMISSAL – DAMAGES
In this respect the observation of the Supreme Court per Belgore JSC (as he then was) in Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt.380) 467 at 664 is apt. It merits my respective quotation in extenso. Said the learned justice of the Supreme Court:- “Except in employment governed by statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other termination inconsistent with the relevant statute is null and void and of no effect examples are many especially with modern constitutional and statutory trends. (University of Lagos Act, 1962; Section 13 (2), 18 (e) and 61 under cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for wrongful dismissal. This is based on the notion that no servant can be imposed by Court on an unwilling master even where the mater’s behaviour is wrong. For his wrongful act, he is only liable in damages and nothing more. Union Beverages Ltd v Owolabi (1988) 1 NWLR (Pt.68) 128.”

⦿ THREE CATEGORIES OF CONTRACT OF EMPLOYMENT
In C.B.N v Igwillo (2007) 4-5 SC 154 @ 172 lines 25-40 to be as follows: “The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; those where a servant is said to hold office at the pleasure of the employer; and those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See: Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599. An employment is said to have statutory flavour when the employment 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 agree to be master and servant.”

➥ REFERENCED (OTHERS)