CHIEF O. ADE OKENLA (Coroner, Ijebu Province) (PLAINTIFF/APPELLANT)
1. CHIEF J.M. BECKLEY
2. MR. V.O. ESAN
3. REV. J.A. AKINYEMI
4. CHIEF E.A.A. FADAYIRO (DEFENDANTS/RESPONDENTS)
(1971) All N.L.R. 513
Division: Court of Appeal, West
Date of Judgment: 11th August, 1971
Case Number: SUIT NO. CAW/102/1970
Before: Ademola, Eso, Akinkugbe, J.J.A.
Appeal from the High Court (West).
(1) Normally and apart from intervention of Statute there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages.
(2) Section 30 of the Interpretation Law (Cap. 51), Laws of the Western State of Nigeria states that where by or under any Law or Ordinance a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having power to make the appointment shall also have power to remove, suspend, dismiss, reappoint or reinstate any person appointed by it in exercise of the power.
(3) In this case, the Public Service Commission has power to make appointment of a Coroner and so it also has power to terminate such appointment.
Cases referred to:
Earl of Dysart v. Hammerton, (1916) 1 A.C. 57.
Attorney-General v. Colchester Corporation, (1965) 2 Q.B. 207.
Vine v. National Dock Labour Board, (1957) A.C. 488.
Law referred to:
Interpretation Law, (Cap. 51) Laws of Western State of Nigeria s.30.
APPEAL from the Court of Appeal (West).
SUIT NO. CAW/102/1970.
Olowofoyeku, Principal State Counsel, (with him Onadele) for the Defendants/Respondents.
Chief Okenla in person.
Eso, J.A.:-The appellant, who was the plaintiff in the High Court Ibadab, had, in his writ of summons, filed in that court, sought:-
"a declaratory judgment that the letter dated 4th August, 1969 addressed by the Secretary Public Service Commission to the Chief Registrar High Court of Justice, Ibadan and the letter of the Chief Registrar dated 12th August, 1969 to the plaintiff, both purporting that the plaintiff "should not be re-engaged as a coroner for Ijebu Judicial Division" with effect from 1st October, 1969, and null and void, as being ultra vires or irregular or wrongful and of no effect;
2. a declaration that the appointment of the plaintiff as a Coroner in 1960 was and still is a judicial appointment, enjoining the plaintiff to continue in that office unless removed as a result of any disqualification applicable to the holders of similar judicial appointments;
3. injunction restraining the defendants, their agents and/or servants from preventing the plaintiff from acting in the capacity of the Coroner for Ijebu Judicial Division."
In a 25 paragraphed statement of claim, the appellant averred that he was, on the 1st December, 1960, offered appointment as a Coroner for both Ijebu and Abeokuta Provinces by the Judicial Service Commission and this offer of appointment he accepted on the 8th December. He then went on and complained:-
8. By a letter dated 23rd January, 1967, the Acting Chief Registrar, High Court of Justice, Ibadan wrote to inform the plaintiff inter alia that "His Excellency the Military Governor, Western Region, has approved your appointment as a Coroner for Ijebu Judicial Division with effect from 1st February, 1967."
9. As a result of the said letter, the plaintiff then ceased to function as a Coroner for Abeokuta Province.
10. The plaintiff ever since however continued to perform the duties as the Coroner for Ijebu Province.
11. By a letter dated 12th August, 1969, the Acting Chief Registrar, High Court of Justice, Ibadan, informed the plaintiff that "the Public Service Commission has decided that you should not be re-engaged as a Coroner for Ijeu Judicial Division at the expiration of the present contract appointment."
It was the letter referred to in paragraph 18 of the statement of claim that the appellant claimed the declaratory judgment aforesaid in respect of, and that letter which was admitted in evidence by the learned trial Judge as Ex. E reads:-
"I am directed to refer to the Honourable the Chief Justice's letter No. CRC. 264/88 of 8th July, 1969, and to inform you that the Public Service Commission has decided that you should not be re-engaged as a Coroner for Ijebu Judicial Division at the expiration of the present contract appointment.
2. His Lordship has directed me therefore to inform you that you will cease to function as a Coroner as from 1st October, 1969.
3. I attach, hereto, for your information, a copy of the letter from the Public Service Commission, Ibadan."
The respondents admitted that it was the Judicial Service Commission that offered the appellant the post of Coroner for both Ijebu and Abeokuta Provinces but claimed that this appointment had ceased. They claimed however that it was the Public Service Commission that later appointed the appellant to be Coroner only for Ijebu Province. It was the latter appointment that was determined by the letter Ex. E aforesaid.
After taking evidence, the learned trial Judge, and after a comprehensive review of all the posts raised by both Counsel for the appellant and the respondents, dismissed the appellant's claim and refused all the relief's he sought.
To this end the judgment held that under section 3(1) of the Constitution of Western Nigeria, No. 26 of 1963 it was the Public Service Commission that was charged with the responsibility of appointing persons to hold office of Coroner in the Region. If the appellant was acting as Coroner by virtue of the appointment offered to him in 1967, this contract superseded the one entered into in 1960. In any event, the appellant by his own action had treated the 1960 contract as at an end.
Against this decision, the appellant filed in this Court, seven grounds of appeal. However when the case came up for argument, he withdrew six of the seven grounds of appeal and the only ground of appeal which he argued before us reads:-
"that the decision of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence before the court."
He submitted in pursuance of this ground of appeal that the learned trial Judge did not advert his mind to the claim before the court and according to him, this would be evident from the whole judgment of the court. Chief Okenla went on and said that there was no evidence by the 5th respondent, that is, the Public Service Commission, that he appointed or that he has power to appoint the appellant as Coroner. He concluded by submitting that one could not re-engage anybody whose appointment has not been terminated. There was no evidence he said that his appointment was ever terminated; therefore there could be no question of his re-engagement.
This last submission was based on the terms of Ex. E which states:-
"The Public Service Commission has decided that you should not be re-engaged as a Coroner."
For his part Mr Olowofoyeku, learned Principal State Counsel representing the respondents, submitted that the intention of the letters Ex. E and Ex. E1 should be looked into. We have already reproduced Ex. E Ex. E(1) reads:-
"I am directed to refer to your letter No. CRC. 264/86 dated 28th June, 1969, and to inform you that the Commissioners have agreed that Chief Okenla should not be re-engaged as a Coroner for Ijebu Judicial Division at the expiration of his present contract appointment."
Counsel went on and submitted that the intention, which could be inferred from the letters, shows that the appellant shall cease to be a Coroner and in fact he ceased to be such Coroner. The court, he submitted will not declare in such circumstances that someone is still in such employment when one cannot compel his employers to retain him. The first leg of the claim of the appellant, is, in the submission of learned Counsel, a foundation for the second.
It is clear to us that what is to be determined in this appeal is, having regard to the ground of appeal argued by the appellant and his submissions thereon, whether there is enough evidence before the court below that would have warranted granting of the relief's sought. Before we go into this however, we would like to express our complete accord with the reasoning of the learned trial Judge in regard to the powers of the Public Service Commission in making appointment of Coroners. The learned trial Judge treated this matter in extenso and we agree with his reasoning and conclusion. If, as we hold, the Public Service Commission has power to make appointment of a Coroner, that body also has the power to terminate such appointment. Section 30 of the Interpretation Law (Cap. 51) Laws of Western State of Nigeria puts the matter beyond doubt. It states:-
"30. Where by or under any Law or Ordinance a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having power to make the appointment shall also have power to remove, suspend, dismiss, reappoint or reinstate any person appointed by it in exercise of the power."
We agree with the learned Principal State Counsel that though Ex. E speaks of re-engagement the intention is clear and this intention was that the appellant should cease to be the Coroner for Ijebu Province. There is also the added fact that he so ceased. As regards the reliefs sought we are of the view that the first declaratory claim of the appellant lays foundation for the second. The first claim was that the letter, Ex. E, should be declared null and void whereas the second claim, which in our view is the real relief being sought by the appellant was to the effect that his appointment as Coroner be declared as still subsisting.
In the Earl of Dysart v. Hammerton (1961) 1 Appeal Cases p. 57, where the plaintiffs claimed a declaration that they were entitled to ancient ferry from point to point on the River Thames in London and also an injunction to restrain the defendants who had commenced to carry passengers across the river, from disturbing the plaintiffs in the enjoyment of that ferry, the Court of Appeal unanimously expressed the opinion that if the disturbance of the ferry was not proved the court ought not to make a declaration of the plaintiffs' title. When the matter went before the House of Lords, Viscount Haldane expressed the following view (p. 64):-
'The members of the Court of Appeal concurred however, in saying that, if infringement was not proved, Warrington J. was wrong in making, as he did a declaratory order that the title to a franchise ferry was established. As the learned judge had found that the plaintiffs could have no relief against the defendants the Court of Appeal thought that it was not proper, having regard to the character of the case, to make a declaration which might prejudge other cases.
I will say at once that I am in agreement with the Court of Appeal on this point."
Also in Attorney-General v. Colchester Corporation (1965) 2 Q.B. 207 Lord Goddard C.J. put the point thus:-
"I do not see that any useful purpose would be achieved thereby, and the court is always loathe to make a declaration where no consequential relief is granted. I cannot see that a bare declaration will be of any assistance to the realtor or other inhabitants of the village."
What the appellant in this case sought in this second leg of the declaratory claim would, in our view, amount to a specific performance of the contract between him and his employers. It is trite that the courts will not keep an employee in the services of an employer against the wishes of that employer except in very special cases. In other words, normally the courts will decline to declare the invalidity of a dismissal Lord Keith in Vine v. National Dock Labour Board (1957) Appeal Cases 488 said at p. 507:-
"normally and apart from the intervention of statute there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages."
As the second leg of the declaration could not be granted it would be futile for the court to grant the first leg of the declaration. The same applies to the 3rd relief which seeks an injunction restraining the respondent from preventing the appellant from acting in the capacity of Coroner for Ijebu Judicial Division. For these reasons the appeal must fail and is hereby dismissed. The judgment and order of the High Court are affirmed.