IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 1ST DAY OF FEBRUARY, 2019
BEFORE THEIR LORDSHIPS
MARY UKAEGO PETER-ODILI-JUSTICE, SUPREME COURT
KUMAI BATANG AKAAHS-JUSTICE, SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN-JUSTICE, SUPREME COURT
AMIRU SANUSI-JUSTICE, SUPREME COURT
EJEMBI EKO-JUSTICE, SUPREME COURT
SC.63/2010
BETWEEN:
1.KWARA STATE JUDICIAL SERVICE COMMISSION
2.HON. JUSTICE TIMOTHY OYEYIPO ……………………………………………………… APPELLANT
3.MRS. OLALERE
4.ATTORNEY-GENERAL OF KWARA STATE
AND
MISS YETUNDE ZAINAB TOLANI ……………………………………..…………………………… RESPONDENTJUDGMENT
(Delivered by KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC)
I have had a preview of the judgment of my learned brother MARY PETER-ODILI, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. In support of the judgment, I shall comment briefly on the nature of the respondent’s employment, as it is relevant to the remedy she is entitled to.
The various categories of contracts of employment were held by this court in C.B.N. vs 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 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 flaviour; 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.” (Emphasis mine)
See also: Imoloame vs WAEC (1992) 9 NWLR (Pt 265) 303; Shitta-Bey vs University of Lagos (1981) 1 SC 40. Where the procedure for employment and discipline is clearly spelt out in the relevant statute, the employer must comply strictly with its provisions in dismissing its employee or terminating his employment. See: Comptroller General of Customs & ORS. Vs Gusau (2017) 4 SC (Pt. II) 128; Bamgbose vs Unilorin (1999) 10 NWLR (Pt. 622) 290.
The Kwara State Judicial Service Commission is established pursuant to Section 197 (1) (c) of the 1999 Constitution, as amended and Part II of the Third Scheduled thereto. B virtue of Paragraph 6 (c) of Part II of the Third Schedule, the powers of a State Judicial Service Commission include the power to appoint, dismiss and exercise disciplinary control over the Chief Registrars, Deputy Chief Registrar of High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts, and Customary Courts and all other members of the staff of the Judicial Service of the state not otherwise specified in the Constitution.
Pursuant to the powers conferred on it by the aforesaid paragraph 6(c) of Part II of the Third Schedule, the 1st Respondent enacted the Kwara State Judicial Service Regulations 1980.
By her letter of appointment dated 23/12/2004, the respondent was appointed Magistrate Grade II on Grade Level 10. Section 8 of the Criminal Procedure Code of Kwara State, Cap. 43 Vol. 1, Laws of Kwara State of Nigeria, 1994 provides for the cadre of magistrates. The respondent falls within Section 8 (f), that is, magistrate of the second grade. Sub-section (2) of Section 8 provides that the Judicial Service Commission may appoint any person to the office of magistrate while sub-section (3) provides that such appointment shall be made in compliance with the provision of the Constitution and “of any legislation made in accordance therewith”.
I agree with learned counsel for the appellant that being a magistrate Grade II on Grade Level 10, the respondent is a senior staff of the 1sr Appellant and a public officer as defined by Section 318 (1) of the 1999 Constitution. I am therefore not in any doubt that her employment was one with statutory flavour. The termination or withdrawal of her employment could only be done in strict compliance with its regulations guiding such matters.
It is noted that the trial court found and held that the withdrawal of the respondent’s employment was wrongful but not unlawful. The lower court, in my view got it right when it held at page 271 of the record.
“I am of the view that having found that Section 72 of the regulations did not avail the respondents, the unlawful and unconstitutional termination of the appellant had been established since the statutory or due process for her termination were not followed and indeed the reasons for such termination was untenable in law.
What then are the consequences of the illegal and unconstitutional act of the Respondents? In Hart vs Military (Governor of Rivers State (1976) N.S.C.C. (Vol.10) 222; the Supreme Court re-echoed what was said in Shitta-Bey’s case (1981) 1 SC (Reprint) 26 at 34, when the Military Governor of Rivers State as Permanent Secretary in spite of the powers conferred on the State Public Service Commission to do so. Fatai-William J.S.C. succinctly put it thus:
“There is no doubt that what the Military Governor did in the case in hand was ultra vires his constitutional powers. This renders his order that the appellant should be retired from the public service a nullity.”
See again U.B.N. (NIG) Ltd vs Ogboh (1995) 2 NWLR (Pt. 360) 647 at 669; where it was held also that the plaintiff employment being one with statutory flavour it can only be terminated in the manner prescribed by the relevant statute and any other contrary manner of termination is null and void ab inito.
Having declared that the withdrawal or termination of the Appellant employment is null and void as same was ultra vires the powers of the commission, 1st Respondent, the effect is that the Appellant is entitled to return to her duty post. This brings me to the issue of reinstatement which the lower court ought to have made as prayed in relief 4 of the statement of claim, in view of the finding that section 72 of the regulations did not avail the Respondent.”
The view expressed by the lower court on the reinstatement of the respondent is in line with numerous decision of this court to the effect that where an employee’s service is protected by statute and it is wrongfully terminated (or withdrawn, as in this case), he would be entitled to reinstatement See: C.B.N. vs Igwillo (supra), Shitta-Bey vs The Federal Public Service Commission (supra), Olaniyan vs University of Lagos (supra), to name a few.
The respondent’s marital status, not having been shown to be a precondition for her employment under regulation 72 of the 1st Respondent’s regulations, the withdrawal or termination of her employment on the ground that she had lied about same, was ultra vires, null and void. She is therefore entitled to an order of reinstatement as ordered by the lower court.
It is for these and the further reasons stated in the lead judgment that I find this appeal to be meritorious. I allow it. The judgment of the lower court is hereby affirmed.
I abide by the order for costs as contained in the led judgment.
– KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE SUPREME COURT
– J.A. MUMINI ESQ, D.P.P KWARA STATE MINISTRY OF JUSTICE for the appellants with A.B. DARAMOLA ESQ.
-SALMAN JAWONDO ESQ. for the Respondent with ABDULWASIU LAWAL ESQ. and ANDREW OPEH ESQ.
