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Parties are bound by terms of their contractual agreement (3)

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IN THE COURT OF APPEAL OF NIGERIA

IN THE  LAGOS JUDICIAL DIVISION   

HOLDEN AT LAGOS

ON WEDNESDAY THE 4TH DAY OF FEBRUARY, 2015

BEFORE THEIR LORDSHIPS:

U. I. NDUKWE-ANYANWUU               JUSTICE, COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI                    JUSTICE, COURT OF APPEAL

ABIMBOLA ASARUGUE OBASEKI-ADEJUMO                       JUSTICE, COURT OF APPEAL

CA/L/563/2010

BETWEEN

AL-BISHAK —————-            APPELLANT                                 

AND

NATIONAL PRODUCTIVITY CENTRE                  

MINISTER OF LABOUR AND PRODUCTIVITY RESPONDENT

ON the premise and given the established principle of law that parties are bound by the terms of their contractual agreement which courts are also enjoined to give effect to. It follows that Exhibit P1 which is the contract of employment between the Appellant and the 1st Respondent must be followed to the letter except there is proof of illegality or fraud. So held the Court of Appeal, Holden at Lagos in a unanimous leading judgment delivered by his lordship, Samuel Chukwudumebi Oseji (JCA) his learned brothers U. I. Ndukwe-Anyanwuu  and Abimbola Asarugue Obaseki-Adejumo (JJCA), concurring while allowing the Appellant’s appeal in part.

    The Appellant was represented by Abubakar Shamsudeen while Chris Okeke for the 1st Respondent and Charles Edeki for the 2nd Respondent. The facts are as contained in the body of the judgment. Exhibit P3 which is the letter of termination is no less germane.

    While I am in agreement with the holding of the learned trial judge that by virtue of Exhibits P1 and P3 coupled with 1st respondent’s averment in paragraph 14 of their statement of defence, the parties intended to apply the Federal Civil Service Rules in their employment relationship. I also agree with the finding of the learned trial while relying on OKOMU’S case to the effect that it is only when it is established satisfactorily that an employee was appointment under the Federal Civil Service Rule 02101 that any formal agreement between the plaintiff and the Federal Government or any of its agent will be established.

    However, Exhibit P1 is very clear on the intent of the 1st Respondent to apply the Public Service Rules, though with its own modifications and stipulations shown in paragraph 4 of Exhibit P1. In this regard, I agree in the submission of the appellant’s counsel that it is necessary and legally imperative to give effect to the intention of the parties evidenced in their contractual agreement except there is proof of fraud or illegality. The cases of NWOBI VS ANOKAM (Supra) AND TOTAL (NIG) PLC VS MORKAH (Supra) cited by the Appellant’s counsel are supportive of this principle of law. See also the following cases where it was held 

that parties are bound to give effect to same. A.G. FERRERO & CO. LTD VS H.C. (NIG) LTD (2011) 13 NWLR (PT 1265) 592. CHUKWUMAH VS SDPC 91993) 4 NWLR (PT 289) 512; UNION BANK OF NIGERIA VS OZIGI (1994) 3 NWLR (PT 333) 385; AJAGBE VS IDOWU (2011) 17 NWLR (PT 1276) 422. It is thus not the function of the court to rewrite the contract of the parties or imput that which that which is not within the contemplation of the agreement. See also UNION BANK OF NIGERIA VS SAX (NIG) LTD (1994) 8 NWLR (PT 361) 150.

    My response to that is, given the terms contained in paragraph 3 of Exhibit P1 that the 1st respondent can extend the period of probation for a longer period as may be deemed advisable and the appellant accepted it as part of the conditions of his service, he cannot subsequently import Rule 020301 or 020303 of the Federal Civil Service Rules to prevail over the clear provisions of paragraph 3 of Exhibit P1. Besides, learned counsel for the appellant referred to rules 02301 and 02303 to insist that his confirmation is deemed automatic after the two years of probation having passed the medical fitness test and handled different positions.

    He however omitted to refer to 020302 which specifically emphasized that:- “Within his probationary period an officer is required to pass the prescribed examination appropriate to his appointment.’’ Rule 020303 also repeated the requirement that:-  “To be eligible for confirmation in the permanent establishment, an officer appointed on probation is required to pass the prescribed examination.’’

    The Appellant who is strongly insisting that his appointment is governed by the Federal Civil Service Rules did not however comply with the important requirement of passing the prescribed examination before confirmation or at least it is nowhere pleaded in his amended statement of claim, neither was it given in his evidence. All he insisted on was that he passed the medical fitness test which is even a basic prerequisite for a new appointment into the service and not for promotion or confirmation.

    On the whole it is not in doubt that the Appellant in the absence of any proof to the contrary, was still on probationary appointment at the time his appointment was terminated by the 1st respondent.

It is trite that an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporary during the period of probation hence the process of his removal is not subjected to strict adherence to Rules as is the case with a confirmed officer. That is why the Rules or even Exhibit P1 provided for one month’s notice of termination of the appointment on both sides.

    Graciously enough, the Appellant’s counsel tacitly agreed at page 17 of the appellant’s brief that Rule 02301 under which the appellant’s appointment was purportedly terminated only relates to termination of appointment of officers on probation and during the probation period. That makes matters easier here having earlier found that the Appellant was still under probation as he has not had his appointment confirmed when it was terminated vide exhibit P3, which also stated so in clear terms.        In the circumstance issue 1 and 2 hereby resolved against the Appellant. 

    On issue 3, the Appellant’s contention is that it was wrong for the learned trial judge to have dismissed the Suit against the 2nd respondent on the ground that no reasonable cause of action was disclosed against it. The relevant portion of the judgment of the lower court being challenged is at page 476 of the record and it reads:- “As for the 2nd defendant, there is nothing alleged against it in the statement of claim other than the fact the plaintiff wrote a petition to it complaining about wrongful termination of his appointment by the 1st defendant. I therefore find no cause of action against the 2nd defendant. Consequently, the plaintiff’s claim against the 2nd defendant is hereby dismissed.’’

    Curiously enough in the course of a careful perusal of the record, it was discovered that learned counsel for the 2nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 350B of the record. In its ruling as contained in the pages 350B AND 350C of the Record, the lower court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it.

Incidentally there was no appeal against the said Ruling which means that it still subsist despite the fact that the judge who gave the ruling is not the same judge who concluded the hearing and delivered the final judgment. Nonetheless it is still the same court and any such Ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another judge more so that in this case it was in the same court.

    When a case is to be tried de novo before another judge due to the transfer of a former judge hearing it or due to a reassignment order, every Ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting. See SUBERU VS ACB & ORS (2002) LPERL (12207) CA. where it was held that all the judges have concurrent jurisdiction. No judge of a High Court is in a position to review or revisit a decision or order of his brother judge. A decision, judgment or ruling given by a particular judge while sitting as a court is that of the court rather than that of an individual judge. See also LIASU VS SALAU (2011) LPELR (3919) CA AND EGBUCHE VS EGBUCHE (2013) LPERL (22512) CA.

    In the light of the above, it is my view that the learned trial judge lacked the jurisdiction to review or alter the outcomes of the Rulings delivered on 4-3-2008, the court having become functus officio. This issue is accordingly resolved in favour of the appellant.

    On issue 4, the Appellant’s complaint herein is that the learned trial judge having found that the appointment of the appellant was wrongly terminated ought to have proceeded to grant the relief of N10, 000, 000 prayed for in the amended statement of claim as damages against the respondents instead of awarding only one month’s salary in lieu of notice.

Without much I ado I will refer back to the finding of this court while considering issue 1 and 2 that the content of Exhibit P1 regulates the contract of employment between the appellant and the respondents and this he equally concedes to. In this regard I draw attention to paragraph 5 therein which stipulates that the termination of appointment shall be with one month’s notice or payment of one month’s salary in lieu of notice by either side. This court had also resolved that the appellant was still on probationary appointment when it was terminated as also reflected in Exhibit P3 (Termination of probationary appointment).

    However, in terminating the Appellant’s appointment, the 1st respondent did not comply with the terms of the content of exhibit P1, but rather got the appointment terminated with immediate effect. The act of the 1st respondent in this regard constitutes a breach of the terms of the contract of employment which provides for one month’s notice or one month’s salary in lieu of notice on either side. It follows that the Appellant’s appointment was wrongly terminated.

    The learned trial judge no doubt treaded the right path and I have no cause to alter his decision on this issue. Where a contract of employment stipulates expressly that it is terminated by the giving of a stipulated period of notice, the damages recoverable for wrongful termination will be the amount of wages or salary the employee would have earned during the stipulated period. For instance, if a contract of employment provides for one month’s notice, then damages will then be one month’s salary or wage. See OBOT VS C.B.N (1993) 9 SC NJ 368 AND WESTERN NIGERIA DEVELOPMENT CORPORATION VS ABIMBOLA (1966) 1 ALL NLR 159; SPRING BANK PLC VS BABATUNDE (2012) 5 NWLR (PT 1292) 83; ONALAJA VS AFRICAN PETROLEUM LTD 91991) 7 NWLR (PT 206) 691; OLATUNBOSUN VS NASER 91988) 3 NWLR (PT 145) 506 AND OLARENWAJU VS AFRIBANK PLC (2001) FWLR (PT. 72) 2008. This issue is accordingly resolved against the appellant on the whole, this appeal is partly allowed.

    Consequently, except for the part of the judgment of the lower court dismissing the Appellant’s claim against the 2nd respondent which I hereby set aside. The said judgment delivered on the 27th day of January, 2010 by LAMBO AKANBI J. of the Federal High Court, Lagos Division is hereby affirmed. Parties bear their costs.



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