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Parties are bound by the terms of their contractual agreement (2)

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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. It was further argued that in OKOMU’S case, the employer was a limited liability company while in this case the 1st Respondent is a creation of statute.

Reference was then made to Rule 020202 of the Federal Civil Service Rules (as amended) which provides that: ‘’Direct appointment to the Federal Public Service may be in any of the following categories: (a) As trainees or pupils (b) On probation in a pensionable post (c) On non pensionable contract to a non pensionable post or against a pensionable post for a specified period; (d) Acting appointment.’’

    It was then submitted that the appointment of the Appellant is covered by (b) above as one on probation in a pensionable post because the terms of employment between the appellant and the Respondents were as contained in the letter of employment which specifically provided that same will be governed by the Federal/Public Service Rules and the appellant had undergone medical test and was certified medically fit for Government service as required by Rules 020205.

    Therefore it was submitted that the lower court wrongly relied on the decision in OKOMU’S case to answer the question whether effect should be given to the intention of the parties that the contract be regulated by the Public/Federal Civil Service Rules.

On issue 2, learned counsel for the Appellant submitted that the learned trial judge wrongly believed that the provision of clause 5 in Exhibit P1 which makes provision for one month notice was only a term contained in a master/servant relationship under the common law.

    But Exhibit P1 (letter of appointment) issued to the Appellant by the 1st Respondent shows that the appellant was on probation in a pensionable post of Assistant Director. Therefore clause 5 provides for means of termination of the contract during the probation period by either of the parties giving a month’s notice or payment of one month’s salary in lieu of notice as per Rules 020801 of the Federal Civil Service Rules (as amended).

    Reference was also made to Exhibit P3, (the letter of termination of appointment) particularly paragraphs 2 and 4 therein to contend that the facts presented in both the letter of appointment and letter of termination of appointment show that the relationship between the parties was governed by the provisions of the public service and federal Civil Service as was represented by the 1st Respondent to the appellant who also relied on same in which case the Respondents are estopped from denying that the relationship between they and the appellant are regulated by the Public Service/Federal Civil Service Rules vide Bashir Alade Shittabey vs Federal Public Service Commission (1981) 1. S.c. 40 AT 57-58.

    Learned counsel also referred to Rule 02301 under which the Appellant’s appointment was terminated and which relates only to termination of appointment of officers under probation and during the probation period. While Rule 02303 stipulates the steps to be taken for the employment of officers in the Public Service to be confirmed.

    It was also contended that assuming without conceding that the termination of the Appellant’s appointment was done during the period of probation as the letter of terminations stated, the procedure adopted is also irregular and illegal because it contravenes the provisions of Rule 02801 which provided for the procedure to be followed for termination of appointment during probationary period for inefficiency or misconduct. The same goes for Rule 04107 which was not followed by the Respondents in which case there is no valid letter of termination as contemplated under the Federal Civil Service Rules.

    Arguing on issue 3, learned counsel referred to the finding of the lower court as it relates to the 2nd Respondent, at page 476 of the record. It was submitted that the 2nd Respondent who was the Defendant in the lower court is described as having powers that borders on the tenure of appointment, emulations, allowances, discipline, removal, resignation and the conditions of service of the employees of the 1st Respondent by virtue of its powers under the National Productivity Centre Act.

    On issue 4, learned counsel noted that the learned trial judge having found that the termination of the appellant’s appointment was wrongful, only ordered the payment of one moth salary in lieu of notice as the damages accruable. But the award is such that cannot give the appellant due reparation for the wrongful acts of the respondents and not in accordance with the intendment of the contract between the parties.

Responding in their own sole issue for determination which is said to derive from all the grounds of appeal, learned counsel of the 1st respondent contended that the appointment of the appellant by the 1st respondent is governed by Exhibit P1 which is explicit and unambiguous and laid down the terms of the appointment without incorporating the Civil Service Rules.

    It was then submitted that the word in the document to which effect is to be given is the content of Exhibit P1 which governs the appointment of the appellant.

    On the Appellant’s contention in his issue 4 that the learned trial judge was wrong to have awarded N10, 000 as damages for wrongful termination of his appointment is untenable and unsupportable. It was submitted that the measure of damages to which a person whose contract of service is terminated is the amount due him for the period of notice which in this case is one month and the award of one month’s salary of N10, 000 by the learned trial judge is appropriate. The following cases were cited in support:- CHUKWUMA V. SPDC LTD (SUPRA) AT 536-537; NIGER INSURANCE CO. LTD V ABED BROTHERS LTD (1999) 7 SC 35; IFETA VS SPDC LTD (2006) 8 NWLR (PT 983) 36; GB OLLIVANT (NIG) LTD VS AGBA BIAKA (1972) 2 SC 127 (REPRINT); INTERNATIONAL DRILLING COMPANY (NIG) LTD AJIJALA (1976) ALL NLR 97. 

    I had earlier in this judgment ruled that the two issues raised in the 2nd Respondent’s brief of argument are not derived from any of the appellant’s grounds of appeal, moreso that the respondent notice was struck out for being struck out for being incompetent. It is therefore taken that the 2nd respondent’s brief has nothing of substance for this court to consider.

I will deal with issues 1 and 2 as raised by the Appellant. The contention here is that the learned trial judge ought not to rely on OKOMU’S case in holding that the relationship between the appellant and the 1st respondent is not governed by the Federal Civil Service Rules.

    In the instant case, I am of the view that in reaching his decision, the learned trial judge did not rely on the facts of the OKOMU’S case as per status of the employer, rather he followed the principles of law enunciated therein, as to when an employer/employee relationship will property to be held to be governed by the Federal Civil Service Rules. Hence he held at page 474 of the records as follows;

    ‘’My understanding of the above quoted paragraphs is that the parties intended or desired to be governed in their relationship by the Federal Civil Service Rules.

Having thus so agreed, can the court give effect to such arrangement by the parties/ the Supreme Court case of OKOMU OIL PALM CO. LTD VS. ISERHIENRHIEN (2001) 6 NWLR PT 710 PAGE 660 AT 674 provides an answer.

    The Supreme Court at page 665 of the judgment states as follows on the procedure for appointment into the Federal Civil Service. ‘’By virtue of 02101 of the Federal Civil Service Rules, appointment of public officers in the Federal Civil Service are made on the authority of the Federal Civil Service Commission. These appointments are made either:- (a) By letter written by the direction of the Federal Public Service Commission; or (b) By formal agreement between the office and the federal Government or its appointed agent.

Heads of department are authorized to appoint eligible candidates to posts in respect of which the powers of appointment have been delegated to them. Prescribed forms are also filled by applicants for senior posts who are then scrutinized before being invited for interview for appointment. It is when it has been satisfactorily established that an employee was appointed under the Federal Government Service rules as provided above that the (sic) any formal agreement between the plaintiff and Federal Government or its agent as proved in rule 02101. I am therefore unable to hold notwithstanding the letter of termination indicating or suggesting that the plaintiff’s appointment was terminated under the Federal Civil Service Rule, without more that the Civil Service Rules govern or regulate the plaintiff’s appointment.’’

    What I can glean from the finding of the learned trial judge as reproduced above is that, by virtue of Exhibit P1 which is the letter of appointment as well as Exhibit P3, the letter of termination. The parties had tacitly agreed that the employment shall be governed by the Federal Civil Services Rues but given the decision of the Supreme Court in OKOM’S case relating to the producer for appointment into the Federal Civil Service as underlined in the above set out portion, the Court cannot give effect to the said arrangement by the parties. It becomes apposite here to out the content of Exhibit P1 below, it read:-

OFFER OF APPOINTMENT

1. Am directed to offer you appointment on probation as Assist Director (information Services & Publication) Grade Level ……….15 ………….. In their National Productivity Centre on the terms of condition laid down in the letter.

2. Your appointment will take effect from the date of your assumption of duty and your service for pension purposes will be reckoned from the same date.

3. You will be eligible, subject to satisfactory services, or for such longer period as may be deemed advisable, dating from your first appointment.

4. You will be subject in all respects to al Condition of Services stipulated from time by the National Productivity Centre as applicable in the Public Service.

5. That, at any time unless you are dismissed, you may terminate your engagement by a month’s notice, in writing, or with the consent, in writing of your Heads of Department, by the payment of a month’s salary in lieu of notice.

6. It is also to understood that as an officer you may be required to serve in any of the branch or Zonal Offices of the National Productivity Centre in Nigeria.

7. I am to request you to inform this office whether or not you are prepared to accept this offer and to take up appointment within two months of the date of this offer. After this period, the offer will lapse.

Furthermore, the appointment is subject to your being passed physically fit for Government Service. 

Yours faithfully, A. Coker, Director –General.



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