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  • 2002-08-12
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Iloabachie v. Philips

MR. C. I. S. ILOABACHIE

V

1.      PROF. DOTUN PHILIPS

2.      NIGERIA INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH

3.      NISER COUNCIL

COURT OF APPEAL

( IBADAN DIVISION )

MORONKEJI OMOTAYO ONALAJA, JCA ( Presided )

DAHALTU ADAMU, JCA

FRANCIS FEDODE TABAI, JCA ( Read the Lead Judgment ) 

CA/I/174/98 

FRIDAY, 7TH DECEMBER, 2001.

APPEAL - Findings of fact by trial court - Attitude of appellate court thereto

COURT - Duty of to apply rules of equity - When arises

EQUITY - Equitable maxim - ‘He who comes to equity must come with clean hands’ - Application and essence of

EQUITY - Party approbating and reprobating - Attitude of equity thereto

ESTOPPEL - Master and servant relationship - Termination of employee’s employment - Employee’s competence to challenge termination When employee is estopped

ESTOPPEL - Party challenging competence of employer to terminate his employment - When such party is estopped - Implication of party approbating and reprobating at the same time

EVIDENCE - Onus of proof of wrongful termination of employment - On whom lies

INTERPRETATION OF STATUTE - Obsolete statute - NISER Decree No. 70  of 1977 creating a governing council of NISER - Where there exists no NISER Council - Interpretation of

LEGAL PRACTITIONER - Counsel and Senior Advocates - Responsibility of to assist the courts in the dispensation of justice

MASTER AND SERVANT - Contract of employment - Termination thereof -  When and how can be done - When inexpedient to do so

MASTER AND SERVANT - Contract of employment with statutory flavour -  What amounts to - Special attributes and benefits of

MASTER AND SERVANT - Contract of employment with statutory flavour -  Requirement for strict adherence to the procedure stated in the statute for termination to be valid

MASTER AND SERVANT - Employment with statutory flavour - How determined - Duty of court to construe

MASTER AND SERVANT - NISER Council - Member of - Whether may carry out the policies of the Institute

MASTER AND SERVANT - NISER Decree No. 70 of 1977, section 5(3) thereof - Whether relevant in questions of discipline or termination of NISER staff

MASTER AND SERVANT - Obsolete statute - NISER Decree No. 70 of 1977  creating a governing council of NISER - Where there exists no NISER Council - Interpretation of

MASTER AND SERVANT - Party who had taken benefits of the acts of a body or the contents of a document turning round to question legality of same - Whether lawfully permitted to do so

MASTER AND SERVANT - Statutory public institution - Contract of employment of employees of - Whether automatically one with statutory flavour

MASTER AND SERVANT - Termination - Varying meanings of

MASTER AND SERVANT - Termination of employment - When party may be said to have  acquiesced in the termination of his employment -

Party accepting salary in lieu of notice - Whether party can turn round to challenge termination

PLEADINGS - Party failing to adduce evidence in proof of pleaded facts Effect

PRACTICE AND PROCEDURE - Failure of party to adduce evidence in respect of his pleading - Effect

STATUTE - Enactment - When provisions thereof said to be obsolete

STATUTE - NISER Decree No. 70 of 1977, section 5(3) thereof - Purport of

WORDS AND PHRASES - Obsolete enactment  - Meaning of WORDS AND PHRASES - Termination - Varying meanings of

Issues:

1.            Whether the mere fact that a person is an employee of a statutory body or organisation automatically makes his contract of employment one with statutory flavour.  What are the determinants of contract of employment with statutory flavour and how is such contract determined?

2.            Whether a party, who after becoming aware of the termination of his employment collects his gratuity and continues to receive his pension can still validly challenge the said termination.

Facts:

The plaintiff/appellant sued the respondents jointly and severally for special and general damages for wrongful termination of employment at the High Court of Oyo State.  The appellants relied heavily on the provisions of Decree No. 70 of 1977 in instituting the suit.  He referred to the fact that the 2nd respondent was a public statutory establishment created by the NISER Decree No. 70 of 1977 and the 3rd respondent also a statutory body set up under the decree to manage the affairs of the former and contended that since he was appointed by the latter under section 5(3) of the Decree, he was a public servant and his appointment was one with statutory flavour.  Consequently, he believed his appointment could only be validly terminated strictly in accordance with the provisions of the statute. It was also the appellant’s case that even the 3rd respondent who appointed him could not alter the tenure of his appointment without reference to the Minister of Establishment as provided in the Decree.

At the end of the trial, the learned trial Judge dismissed the plaintiff’s claim in its entirety.  Dissatisfied with that judgment, the appellant appealed.