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)