UBTH BOARD OF MGT v. ORONSAYE
CITATION: (2018) LPELR-45655(CA)
In the Court of AppealIn the Benin Judicial Division
Holden at Benin
ON WEDNESDAY, 6TH JUNE, 2018Suit No: CA/B/181/2012
Before Their Lordships:
HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
BetweenUNIVERSITY OF BENINTEACHING HOSPITALBOARD OF MANAGEMENT
- Appellant(s)
AndMRS. BRIDGET ORONSAYE - Respondent(s)
RATIO DECIDENDI
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1. LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR:Position of the law as regards employment with statutory flavour"...However, employment that enjoys statutory flavour is determinableby the protection of such appointment in the enabling statute.In the instant case, it was merely alleged that the appointment of theRespondent was governed by Sections 9&10 of the University of BeninTeaching Hospital Act, (Cap 463) LFN 1990 but nothing has beenshown in that statute protecting the class of appointment ascontained in Exhibit A ....the law is as stated by Karibi-Whyte, JSC inthe case of Imoloame v. WA. E. C at page 317. He says thus:Appointments with statutory flavour are regulated by the relevantstatutes that creates the appointment and regulates same includingtermination of the appointment. Thus, it is not every staff of theUniversity of Benin Teaching Hospital that falls in to this group. TheRespondent did not prove that her appointment was statutorilyprotected. An employment is said to be statutorily flavoured when theappointment and termination is governed by statutory provisions. SeeOlaniyan v. University of Lagos (No. 2) (1985) 2 NWLR (Pt. 9) 599where it was held that an employment with a statutory flavour ariseswhere the body employing the man is under some statutory or otherrestriction as to the kind of contract which it makes with its servantsor the grounds on which it can dismiss them. It is now accepted thatwhere the contract of service is governed by the provisions of statuteor where the conditions of service are contained in regulations derivedfrom statutory provisions, they invest the employee with a legalstatus higher than the ordinary one of master and servant. This iswhat is known as statutory flavour. The Respondent in this case wasonly employed as an ordinary servant by the appointment letterExhibit A. It is glaring that the contractual relationship of master andservant between the instant parties not having a statutory flavor wasproperly terminated by the letter dated 20/05/98. Exhibit 'A' is not astatutorily flavoured appointment document and the Respondent isnot therefore entitled to be accorded a status higher than that ofordinary servant. Rather the Respondent is an ordinary employeewhose appointment is governed by the terms stated in herappointment letter. Thus, the Appellant had right to terminate herappointment by giving her a month's notice or one month's salary inlieu of such notice. That is what the Respondent is entitled to asclearly stated in her contract of employment."Per MUKHTAR, J.C.A.(Pp. 22-24, Paras. C-C) - read in context
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HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading
Judgment): This is an appeal and a cross-appeal against
the judgment of the Federal High Court delivered by Hon.
Justice I. N. AUTA J (as he then was) delivered on 14th
March, 2002.
In August 1998, the Respondent in this appeal commenced
at the Federal High Court, Benin City action against the
Appellant claiming the reliefs as endorsed in the statement
of claim dated 23rd October, 1998. (See pages 17- 18 of the
record.)
The Appellant joined issues with the Respondent in its
statement of Defence (see pages 21-22 of the record). The
Appellant testified for herself and called one other witness
Bambo Konyenikan and closed her case. Thereafter the
parties addressed the Court and judgment was delivered,
wherein the learned trial judge held thus:-
"The Court cannot order her reinstatement as her
employment does not enjoy any statutory flavour. But
since the dismissal was not done according to the
terms on Exhibit 'A' there is a breach of contract. The
defendants are ordered to pay her full salaries,
allowances and benefits due from the date of
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suspension on the 21/1/98 till date, and also until
when they complied with the mode of disengagement
provided for under Exhibit 'A'."
Being dissatisfied with the judgment, the Appellant
appealed to this Court by filing a Notice of Appeal
predicated upon the following grounds:
1. The Judgment is against the weight of evidence.
2. The Learned trial judge misdirected himself in Law
when he held:-
"The Court cannot order her reinstatement as her
employment does not enjoy any statutory flavour. But
since the dismissal was not done according to the
terms on Exhibit 'A' there is a breach of contract. The
Defendant are ordered to pay the Plaintiff her full
salaries, allowances, entitlements and benefits due
from the date of suspension on the 21/1/98 till date,
and also until when they complied with the mode of
disengagement provided for under Exhibit 'A '. "
PARTICULARS OF MISDIRECTION
a) The Court by the order is indirectly ordering the
reinstatement of the plaintiff to her former position.
b) The position of the Learned trial Judge is contrary
to what is contained in Exhibit 'A' the contract
between the Plaintiff and Defendant which stipulates
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one month's salary in lieu of notice on either side in
case of termination.
c) The position of the learned trial Judge is contrary
to his earlier position, in the Judgment where he held
that "That condition of service of the Plaintiff is that
of a master and servant and a master can terminate
the contract of employment with his servant at
any time and for any reason or for no reason at all,
provided the terms of contract between them is
complied with."
d) The Court engaged in making contract for the
parties contrary to Law.
e) The Order made by the Learned trial Judge was not
asked for by the Plaintiff.
f) The Order is contradictory.
g) The Order was made in complete disregard to the
position of the law on measure of damages in cases of
breach of contract of employment.
From the foregoing, two grounds of appeal, the following
lone issue was raised for determination:
Whether having regard to the contract between the
parties the learned trial judge was right in ordering
the Defendant (Appellant) to pay the Plaintiff
(Respondent) her full salaries, allowances,
entitlements and benefits due from the date of
suspension on the
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21/1/98 till date, and also until when they complied
with the mode of disengagement provided for under
Exhibit' A'.
The Learned counsel for the Appellant submitted that the
Learned trial judge was in error by making the above
pronouncement. He referred to the terms of the agreement,
which binds the parties. He gave the following reasons for
this submission:
You may terminate your appointment at any time by a
month's notice in writing to the Chief Medical
Director of the University of Benin Teaching Hospital
or by payment of a month's salary in lieu of notice.
Similarly, your appointment may be terminated by the
Hospital Management or by its accredited
representative by a month's notice or the grant of a
month's salary in lieu of notice. (See page 51 of the
record).
It was rightly deduced from this term of the agreement that
either party could terminanate the contract by giving the
other a month’s notice or payment of one month's salary in
lieu of such notice.
The Learned trial judge was conscious of this fact when he
held as follows:
"The plaintiff can withdraw her services from the
defendant by the issuance of one month notice or
salary in lieu of and vice versa."
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The Learned trial judge further observed (at page 18, lines
17-18 of the record) as follows:
"But since the dismissal was not done according to
the terms on Exhibit 'A’ there is a breach of contract."
The Learned trial judge therefore declared the dismissal of
the Plaintiff (Respondent) by the Defendant (Appellant) as
null and void.
It was submitted for the Appellant that the learned trial
judge ought to have proceeded to consider the measure of
damages having found that there was a breach of contract.
He however failed to do before making the order which he
made.
It was further submitted for the Appellant, that in claim like
this seeking for damages for wrongful termination of
appointment, the measure of damages ought not exceed the
amount that the Plaintiff would have earned if the
employment had continued according to the contract.
Where however, the defendant, on giving the prescribed
notice, has a right to terminate the contract before the end
of the term, the damages awarded, apart from other
entitlements, should be limited to the amount which would
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have been earned by the plaintiff over the period of the
notice. It is the duty of the plaintiff to minimize the damage
which he sustains by the wrongful dismissal to conform as
nearly as possible with the anticipated inconveniences that
ought to have been sufferred by the claimant. SeeNigerian
Produce Marketing Board v. Adewunmi 1972 ALL NLR
(Reprint) 870 at 874-875.
It was further argued that paragraph 5 of Exhibit 'A', which
is the letter of appointment and upon which is the contract
between the parties is based entitles either party to bring
the contact between the parties to an end by a month’s
notice or one month’s salary in lieu thereof. Thus, where as
in the instant case the Appellant has failed to respect the
term of the contract in Exhibit 'A', the measure of damages
is the one month's salary in lieu of notice which is what the
Respondent would have received in lieu of the one month's
notice.
It was submitted that the learned trial judge was in error in
awarding the Respondent her full salaries, allowances,
entitlements and benefits due from the date of suspension
on the 21/1/98 till date, and also until when they complied
with the mode of disengagement provided for under Exhibit
'A'.
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It was submitted that the said order of the learned trial
judge contradicts the following pronouncement earlier
made in the judgment:
"Since therefore the appointment of the plaintiff did
not enjoy any statutory flavor as the Plaintiff did not
tender any document to show that the Plaintiff's
appointment was confirmed or gazetted, that will
make the appointment to be a permanent and
pensionable one, where a person's appointment is
wrongly terminated or dismissed from service, the
Court cannot order reinstatement of the plaintiff to
his former position." (See page 115 last paragraph to
page 116 lines 1-4 of the record).
It was further argued that the effect of the Court order for
the Respondent to resume work until she is properly
disengaged was tantamount making a contract for the
parties and granting an order that was not asked for. The
function of the Court is to interpret the agreement without
more. See Ayanlere v. F.M.B. (Nig) LTD 1998 11 NWLR
PT. 575, 621 at 629; Kurubo v. Zach-Motison
(Nig) Ltd. [1992]5 NWLR PT. 239 102.
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The claim of the Plaintiff/Respondent as endorsed in the
statement of claim is reproduced thus:
1. "A declaration that the purported dismissal of the
Plaintiff from the services of the defendant by a letter
No. PJ 4277/4 of 20th May, 1998 is unconstitutional,
unlawful, illegal, irregular, ultra vires, a violation of
her rights to fair hearing, null and void and of no
effect.
2. An order re-instating the Plaintiff to her position in
the defendant in the defendant's employment with
effect from the 21st January, 1998.
3. An order that all the Plaintiff's full salaries,
allowances, claims, entitlements and benefits due and
payable be paid to the Plaintiff from the date of her
suspension on 21st January, 1998 to the date of
judgment in this suit.
4. An order that all the Plaintiff's full salaries,
allowances, claims, entitlements and benefits due and
payable be paid to the Plaintiff from the date of
judgment in this suit till the date of re-instatement of
the Plaintiff in her former position of Assistant Chief
Clerical Officer in the service of the defendant." (See
page 18 of the record)
It was further argued that the Respondent did not request
for her full salaries, allowances and other
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entitlements until when the mode of disengaging her is
properly complied with as ordered by the learned trial
judge. A Court of law has no power to grant to a party that
which he did not claim. See Ekpenyong v. Nyong (1975)
2 SC. 71; Woluchem v. Wokoma (1974) 3 SC. 153;
Obioma v. Olomu (1978) 3 SC.l.
It is also settled in law that a wrongfully terminated or
dismissed person cannot get both damages and re-
instatement at one and the same time. See Onalaja v.
African Petroleum Ltd. (1991) 7 NWLR PT. 206 691 at
484. The learned trial judge was therefore wrong to have
ordered damages to be paid to the Respondent while at the
same time ordering her to be re-instatated until she is
properly disengaged.
The Court was urged to resolve the issue in favour of the
Appellant/Cross Respondent and allow the main appeal.
The Learned Counsel for the Respondent/Cross Appeal
argued that the lower Court was right in holding that
Respondent's employment did not enjoy any statutory
flavour as to justify its refusal to make the order of
reinstatement but ordered the payment of her full
entitlements, allowances, salaries and benefits from the
date of her
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suspension till Appellant complies with the provisions of
Exhibit "A".
Before finding that it could not order Respondent's
reinstatement because her employment does not enjoy any
statutory flavour, the lower Court had rightly found thus
(on page 116 of the record):-
"I therefore in conclusion hold and declare that the
dismissal of the Plaintiff (Respondent herein by a
letter dated 20/5/98 is unconstitutional, because the
panel have no jurisdiction to try her on the alleged
criminal offence of fraud or circulation of fake
revenue receipt and also find her guilty of the said
offence. It violated her right of fair hearing therefore
the proceeding is null and void as the dismissal is
based on the recommendation of the panel."
The lower Court based it's decision that Respondent could
not be reinstated because her employment did not enjoy
and statutory flavour on the fact that Respondent as
plaintiff in that Court did not tender any documents to
show that the Plaintiffs appointment was confirmed or
gazette that will qualify the appointment to be permanent
and pensionable.
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The Learned trial Judge further observed (at page 114 of
the record) as follows:
"It is pertinent to note that, the character of an
appointment and the status of an employee in respect
thereof is determined by the legal character of the
contract of employment. Hence where the contract of
appointment is determined by the Agreement of the
parties simplicita, there is no question of the contract
having a statutory flavour. The fact that the other
contract party is the creation of a statute does not
make any difference, see the case of [FAKUADE V.
OAUTH (1993) 5 NWLR pt. 291 p.49] in this case no
condition of service or terms of employment or
contract was tendered by any of the parties, apart
from the letter of offer of employment. It is the
responsibility of the Plaintiff to prove that his
responsibility to tender the condition of service
governing his employment.
The only one we have before the Court is Exhibit “A",
the offer of appointment as clerical assistant."
The Learned trial Judge further observed thus:
"I have narrated the submissions of both counsel and
I find that it is not in doubt or disputed that the
Applicant was employed into the services of the
Defendant on the
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3/8/81 as a clerical assistant. That the Applicant was
subsequently promoted to the post of Assistant Chief
Clerical Officer (Administration) with effect from
1/10/86 with financial effect from the 1/1/ 87."
It was submitted that the Respondent was a bonafide staff
of the Appellant prior to her alleged dismissal by the
Appellant vide a letter dated 20/05/98. And having
acknowledged in his findings above of the appointment of
the Respondent and her later elevation to the junior staff
position of Assistant Chief Clerical Officer (Administration)
between 3/8/81 and 1/1/87, that is about six (6) clear years
from her date of initial appointment into the services of the
Appellant, the later findings of his (at pages 115 & 116 of
the record) were tantamount to a misdirection, which are
reproduced as follows:
"Since therefore the appointment of the Plaintiff did
not enjoy any statutory flavor, as the Plaintiff did not
tender any documents to show that the Plaintiff
appointment was confirmed or gazetted, that will
make the appointment to be a permanent and
pensionable one, where a person's appointment is
wrongly terminated or dismissed from service, the
Court
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cannot order reinstatement of the Plaintiff to his
formal position. The condition of service of the
Plaintiff is that of a master and servant and a master
can terminate the contract of employment with his
servant at any time and for any reason or for no
reason at all provided the terms of contract of service
between them is complied with. The terms of contract
of service in this case between the parties is Exhibit
‘A’ the letter of offer of appointment."
It was further argued that the Respondent had proved,
through Exhibit ‘A’, the fact that her appointment was
permanent and pensionable and therefore is statutory in
n a t u r e . T h e L e a r n e d C o u n s e l f o r t h e
Respondent however failed to refer to the particular piece
of evidence by which the statutory flavour in the
Respondent’s employment was proved. The Respondent
relied on the dicta of my Learned brother OGUNWUMIJU
JCA at p.1849, paras. E-F in the case of Raji v. University
of Ilorin (2008) ALL FWLR (pt. 435) p. 1843 at
P.1849, paras C or D, where the Learned Jusrist observed
as follows:
"Where the terms of employment are governed by
laws, rules and regulations, that is,
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having statutory flavour, the employee's employment
cannot be terminated except in accordance with such
rules and regulations."
Thus, appointments having statutory flavour are therefore
the ones governed by laws, rules and regulations. Such
employments cannot be terminated except in compliance
with such laws, rules or regulations. The Learned jurist had
further observed in the same judgment at p.1849, paras. E-
F as follows:
“Section 15 of the University of Ilorin Act, confers on
the University staff Special status over and above the
normal contractual relationship of master and
servant. Consequently, the only way to terminate such
a contract of service with statutory flavour is to
adhere strictly to the procedure laid down in the
statute i.e. Unilorin Act."
It is therefore not enough to merely say that Sections 9
&10 of the University Teaching Hospitals (Reconstitution of
Boards, etc) Act, Cap 463, Laws of the Federation 1990
(which was the applicable statutory provisions at the time
of the emergence of this cause of action) is similar with the
provisions of Section 15 of University of Ilorin Act upon
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which the foregoing decision is based in the case of Raji v.
University of Ilorin (Supra) but it behooves the
Respondent as plaintiff prove that appointments like the
one shown in Exhibit A are governed by the University
Teaching Hospital Act and then still go a mile further to
show the particular provision in the Act that regulates her
appointment and termination thereof and that her
appointment was terminated by the Respondent and the
submission that:
“it is our considered submission that in line with His
Lordship's findings above, the Respondent's
employment with the Appellant enjoys statutory
flavour for which the lower Court having found that
she was wrongfully dismissed, ought to have
reinstated her as an employee of the Appellant to
justify his further rightful order on the Appellant to
pay Respondent's salaries and entitlements up to the
time it would comply with the methods of her removal
as prescribed by the statutes and not Exhibit "A" as
found by him."
Unless such duty is discharged by the Respondent cases
cited and relied upon, which were decided on contracts of
appointment with statutory flavour will not be applicable
to
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the Respondent’s case like the case of U.N.T.H.M.B. v.
NNOLI (1994) 8 NWLR (pt. 363) P 376 at 413 paras F-
G where OGUNDARE JSC of blessed memory held as
follows:-
"Where a statutory requirement for exercise of a legal
authority is laid down, it is expected that the public
body invested with the authority would follow the
requirement to the details. The non-observance in the
process of reaching its decision renders the decision
itself a nullity. So it is in the case on hand. Having
failed to observe the statutory requirement laid down
in Section 9(1) of the Act, the decision of the 1st
Appellant to compulsorily retire, the respondent was
taken ultra vires and the decision itself is a nullity.
The effects is that the Respondent remains in the
employment of the 2nd Appellant."
The Learned Counsel for the Respondent has ended upon
attacking the judgment of the lower Court may be acting
under the misconception that he was arguing the cross-
appeal. The lower Court was therefore duty-bound use only
the evidence tendered by the Respondent as the claimant
that is Exhibit ‘A’, which does not show or prove linkage
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between Exhibit ‘A’ and the provisions of Section 9 & 10 of
the University Teaching Hospitals (Reconstitution of Boards
etc) Act for the condition of service and term of
employment of the Respondent. In other words, the
Respondent’s employment must be shown to be regulated
by the relevant law. The Court was urged to resolve the
issue against the Appellant and dismiss the appeal.
THE CROSS APPEAL
The Respondent’s Cross-Appeal against the judgment of I.
N. Auta delivered on 14th March, 2002 wherein the learned
judge found thus:-
"The Court cannot order her reinstatement as her
employment does not enjoy any statutory flavour. But
since the dismissal was not done according to the
terms of Exhibit 'A" there is a breach of contract. The
Defendants are ordered to pay her full salaries,
allowances and benefits due from the date of
suspension on the 21/1/98 till date, and also until
when they comply with the mode of disengagement
provided for under Exhibit 'A'."
Aggrieved by the above findings, the Respondent/Cross
Appellant filed a Notice of Cross Appeal dated 22nd March
2017. And subsequently filed an additional ground of
appeal
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thereby predicating the Cross-Appeal on the following twin
grounds:
1. The learned trial Judge erred in Law when he held:
"In this case, no condition of service or terms of
employment or contract was tendered by any of the
parties, apart from the letter of offer of employment.
It is the responsibility of the Plaintiff to prove that his
employment enjoys statutory flavor. It is also his
responsibility to tender the condition of service
governing his employment. The only one we have
before this Court is Exhibit 'A', the offer of
appointment as clerical Assistant."
PARTICULARS OF ERROR:
(i) Paragraph 4 of Exhibit 'A' which was tendered by
the Plaintiff says that the Plaintiff's appointment
shall be subjected to the hospital's condition of
service as well as to the terms and conditions laid
down by the Board from time to time and such other
conditions as are applicable to employees of the
Board.
(ii) Defendant admitted paragraph 6 of the statement
of claim wherein Plaintiff stated that the rules that
guide appointment and discipline of junior staff
should apply to her in any case of discipline.
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(iii) Defendant admitted paragraph 37(v) of the
statement of claim to the effect that the Plaintiff
dismissal was in breach of the provision of the
enabling Decree.
(iv) Plaintiff's Counsel in his address told the Court
that the procedure for the discipline of Junior Staff of
the department's hospital is governed by Section 10
of CAP 463 of the Law of the Federation of Nigeria.
(v) The trial Court did not avert its mind to Paragraph
4 of Exhibit "A" and S.10 of CAP 463 of LFN.
2. The trial Judge erred in Law when he held:
"Since therefore the appointment of the Plaintiff did
not enjoy any statutory flavor as the Plaintiff did not
tender any documents to show that the Plaintiff's
appointment was confirmed or gazette, that will make
the appointment to be a permanent and pensionable
one, where a person's appointment is wrongly
terminated or dismissed from service, the Court
cannot order reinstatement of the Plaintiff, to his
former position. The condition of service of the
Plaintiff is that of a master and servant and a master
can terminate the contract of employment with his
servant at any time and for any reason or for no
reason at all, provided the terms of
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contract of service between them is complied with.
The terms of contract of service in this case between
the parties is Exhibit "A" the letter of offer of
appointment."
PARTICULARS OF ERROR:
(a) The Plaintiff was dismissed from the services of
the Defendant on ground of misconduct.
(ii) It is mandatory for the Defendant to follow the
statutory procedure which must be adopted in the
dismissal or removal of Junior Staff of the
Defendant's Hospital in any case of misconduct.
(iii) The Court is enjoined to take judicial notice of
the provisions of a statute which in this case is
Section 10 CAP 463 of LFN.
(iv) The contract between the Plaintiff and the
Defendant was beyond the ordinary contractual
relationship of master and servant; it has a statutory
flavor.
The Learned Counsel for the Respondent/Cross-Appellant
distilled the following lone issue for determination in the
cross appeal:
"Whether having regard to the provisions of Sections
9&10 of the University of Benin Teaching Hospital
Act, 1990 (Cap 463) and the facts of this appeal, the
lower Court was right in law to hold that the Cross-
Appellant's appointment with the Appellant does not
enjoy any statutory flavour."
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The Learned Counsel for the Appellant/Cross Respondent
raised a preliminary objection to the competence of the
cross-appeal, but abandoned same by inability to argue it
before the hearing of the cross appeal. It is accordingly
struck out.
The Learned Counsel for the Cross Appeal adopts the same
arguments canvassed in the Respondent/Cross Appellant's
Brief.
The Learned Counsel for the Cross - Appellant further
argued that she was a permanent staff. The evidence
before the lower Court was that Cross - Appellant was
employed in 1981 and by Exhibit "A", the appointment was
to be under probation for 2 years. It was also in evidence
before the lower Court that the alleged misconduct for
which Appellant's appointment was suspended and later
terminated was said to have taken place in 1998, 17 years
after her appointment.
It was argued that since the Respondent exceed the
probation period, she must be a permanent staff whose
appointment must enjoy statutory flavour. The Cross-
Appellant’s Counsel argued profusely thus:
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…. from the pleadings and evidence of the parties at
the trial that the Cross Appellant having exceeded the
two years of her probation under the employment of
the Appellant and had maintained the said
employment for a total of seventeen years, could not
but be a confirmed staff of the Appellant prior to her
suspension and dismissal from the said employment?
I need not repeat my observations and findings in the main
appeal except where it becomes necessary or expedient to
so do.
However, employment that enjoys statutory flavour is
determinable by the protection of such appointment in the
enabling statute.
In the instant case, it was merely alleged that the
appointment of the Respondent was governed by Sections
9&10 of the University of Benin Teaching Hospital Act,
(Cap 463) LFN 1990 but nothing has been shown in that
statute protecting the class of appointment as contained in
Exhibit A ....the law is as stated by Karibi-Whyte, JSC in the
case of Imoloame v. W.A. E. C at page 317. He says
thus: Appointments with statutory flavour are regulated by
the relevant statutes that creates the appointment and
regulates same including termination of the appointment.
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Thus, it is not every staff of the University of Benin
Teaching Hospital that falls in to this group. The
Respondent did not prove that her appointment was
statutorily protected. An employment is said to be
statutorily flavoured when the appointment and
termination is governed by statutory provisions. See
Olaniyan v. University of Lagos (No. 2) (1985) 2
NWLR (Pt. 9) 599 where it was held that an employment
with a statutory flavour arises where the body employing
the man is under some statutory or other restriction as to
the kind of contract which it makes with its servants or the
grounds on which it can dismiss them. It is now accepted
that where the contract of service is governed by the
provisions 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. This is what is known
as statutory flavour. The Respondent in this case was only
employed as an ordinary servant by the appointment letter
Exhibit A. It is glaring that the contractual relationship of
master and servant between the instant parties not having
a statutory flavor
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was properly terminated by the letter dated 20/05/98.
Exhibit ‘A’ is not a statutorily flavoured appointment
document and the Respondent is not therefore entitled to
be accorded a status higher than that of ordinary servant.
Rather the Respondent is an ordinary employee whose
appointment is governed by the terms stated in her
appointment letter. Thus, the Appellant had right to
terminate her appointment by giving her a month’s notice
or one month’s salary in lieu of such notice. That is what
the Respondent is entitled to as clearly stated in her
contract of employment. The common issue in both the
Main Appeal and the Cross-Appeal is resolved partly in
favour of the Appellant and against the Cross Appellant.
The appeal succeeds partly to the extent of decreasing
the amount awarded to the Respondent to an amount
equivalent to what the she was entitled under the contract
of employment that is a month’s salary in lieu of notice
of termination of her appointment. The judgment of the
lower Court delivered by I. N. Auta, J (as he then was) on
14th March, 2002 is partly set aside regarding the
assessment of damages. The Cross Appeal is totally
lacking in merit and is accordingly dismissed.
24
(201
8) LP
ELR-45
655(
CA)
The parties shall bear their respective costs in both the
main appeal and the cross-appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the
privilege of reading in draft the judgment just delivered by
my learned brother, Hussein Mukhtar, JCA. I am in
complete agreement with the reasoning in allowing the
main appeal in part and dismissing the cross-appeal for
being bereft of any merit.
I abide by the consequential orders.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview
of the Judgment of my Learned Brother, HUSSEIN
MUKHTAR, JCA which he has just delivered and I am in
agreement that the appeal succeeds in part, while the
Cross Appeal is completely lacking in merit. I abide by the
consequential orders made in the lead Judgment.
25
(201
8) LP
ELR-45
655(
CA)
Appearances:
N. L. Omorodion, Esq. For Appellant(s)
R. I. D. Okezie, Esq. For Respondent(s)
(201
8) LP
ELR-45
655(
CA)