Master and Servant

• Pages: 1-179

1

Absence Paras. 1-4

MASTER AND SERVANT

(1) ABSENCE

1. Absence from duty without leave.

“I have carefully considered all the arguments adduced above by learned counsel on

both sides, and find that there can be no doubt that absence from duty without leave

is a serious offence punishable by dismissal or termination of appointment in the civil

service.” - Per Akpabio, J.C.A. in Obo v. Comm. of Edu. Bendel State Suit No.

CA/B/206/89; (1993) 2 N.W.L.R. (Pt. 273) 46 at 57.

(2) ARREARS OF SALARY

2. Nature of claim subsequent to termination of employment.

“Subsequent to the termination only damages may be claimed even though such

damages may be assessed with reference to salaries payable during the currency of

the contract of employment. The respondent’s claim was misconceived when he

claimed arrears of salaries from the time of the termination of his employment in

1984 to the filing of the action.” - Per Ayoola, J.C.A. in L.U.T.H & M.B. v. Adewole

Suit No. CA/L/266/94; (1998) 5 N.W.L.R. (Pt. 550) 406 at 422.

3. What claim for arrears of salary presupposes.

“When a claim is for arrears of salary, such claim pre-supposes entitlement to such

salary and a denial of payment when and as it fell due. Where the claim is for wrong-

ful dismissal arrears of salary are claimed up to the date of the termination as debt

owed.” - Per Ayoola, J.C.A. in L.U.T.H & M.B. v. Adewole Suit No. CA/L/266/94;

(1998) 5 N.W.L.R. (Pt. 550) 406 at 422.

(3) CIVIL SERVICE RULES

4. Civil service rules and employment of civil servant.

“The Shitta-Bey case similarly earlier decide, relied on the non-compliance with the

provisions of the Public Service Rules of the Federal Public Service made under the

pursuant to the provisions of Section 160(1) of the Constitution 1963. Thus the civil

service rules have constitutional force, and as stated by this Court, “they invest the

public servant over whom they prevail, a legal status; a status which makes his rela-

tionship with the respondent and the government although one of master and servant

certainly beyond the ordinary or mere master and servant relationship.” - Per Karibi-

Whyte, J.S.C. in Imolaome v. W.A.E.C. (1992) 9 N.W.L.R (Pt. 265) 303 at 316;

(1992) 23 N.S.C.C. (Pt. III) 374 at 382-383.

Paras. 5-7 Vol. 16: MASTER AND SERVANT 2

5. Legal status of service conditions of junior staff of the University of Cala-

bar.

(1) “In the present case no injustice has been indicated as having been done by that

procedure. As my learned brother Akintan, J.C.A. has clearly shown the procedure

was in any case appropriate to the facts and circumstances of this case. The next

point is that the employment of the plaintiff/respondent was protected to some extent

by the conditions of service governing it. He cannot be removed from the service at

the whim and caprice of those purporting to act on behalf of his employer. The rules

and regulations dealing with the procedure for bringing employment to a lawful end

must be complied with: See Shitta-Bey v. Federal Public Service Commission

(1981) 1 S.C. 40.” - Per Akintan, J.C.A. in University of Calabar v. Inyang Suit

No. CA/E/78/91; (1993) 5 N.W.L.R. (Pt. 291) 100 at 119.

(2) “The service conditions of Junior Staff of the University of Calabar (Exh.) was

made under the powers conferred on the appellant in the aforementioned Section

3(1)(d) of Decree 80 of 1979. The rules therefore made on the authority of Shitta-

Bey v. Federal Public Service Commission case above, have statutory flavour and

they invest the public servant over whom they prevail, legal status which makes his

relationship with the appellant, though one of master and servant certainly beyond the

ordinary or mere master and servant relationship.” - Per Oguntade, J.C.A. in Uni-

versity of Calabar v. Inyang Suit No. CA/E/78/91; (1993) 5 N.W.L.R. (Pt. 291)

100 at 119.

6. Right to summary dismissal of civil servant.

“There was no need, under the Federal Civil Service Rules, for the respondent to be

arraigned before any panel or tribunal before he can be summarily dismissed. There

is no any special procedure to be followed by the appellants before dismissing the

respondent. There is no evidence to show that the civil service rules were offended

on or before the respondent was dismissed thereby. The lower Court, with respect,

cannot be right when it held that “the defendants before dismissing him did not follow

the proper procedure. The dismissal is wrongful and illegal.” See p. 35 last paragraph

of the record of proceedings. No evidence at all to support these findings by the trial

Court. That Court, in law, was not entitled to substitute its words for the words of that

Act, i.e. the Federal Civil Service Rules.” - Per Muntakar-Coomassie, J.C.A. in

L.C.R.I. v. Ndefoh Suit No. CA/J/101/94; (1997) 3 N.W.L.R. (Pt. 491) 72 at 80 - 81.

(4) CLAIMS FOR SALARY OR LEAVE ALLOWANCE

7. Claiming salary and leave allowance.

“The learned trial Judge had found, rightly, in my view, that the respondent had earned

and enjoyed his 1984 annual leave which ended by the end of December, 1984. That

raises the presumption that the respondent had earned and enjoyed his 1983 annual

leave: vide Section 149(c) of the Evidence Act Cap. 112 Laws of the Federation of

3 Claims for salary or leave allowance Paras. 7-9

Nigeria, 1990. One is therefore at a loss to appreciate the basis of the award in

respect to the 1983 and 1984 annual leave particularly as there was no iota of cred-

ible evidence that the respondent applied that it be commuted to cash and such appli-

cation granted. More importantly, that item cannot be properly claimed as damages.

I am fortified in this view by the case of Abdullah v. Achou (supra) where the

Supreme Court held that the trial Judge was in error in awarding as damages for

breach of contract past salary and leave pay which ought to have been brought as

alternative or separate claims to damages.” – Per Edozie, J.C.A. in A.C.B. Plc. v.

Nbisike Suit No. CA/E/174/88; (1995) 8 N.W.L.R. (Pt. 416) 725 at 748.

(5) COLLECTIVE AGREEMENT

8. Can an employee enforce a collective agreement between Workers As-

sociation and Employers Association?

“In Nigeria Arab Bank Ltd. v. Shuaibu (1991) 4 N.W.L.R. (Pt. 186) 450,

Ndoma-Egba, J.C.A. said: - “Exhibit G, the collective agreement of association of

banks, insurance and allied institutions, etcetera is, at essence of the doctrine of

privity of contract.” - Per Tobi, J.C.A. in N.N.B. Plc. v. Egun Suit No. CA/B/210/

98; (2001) 22 W.R.N. 29 at 48 - 49.

9. Can collective agreement form part of contract of employment?

(1) “It is a collective agreement between employers and employees in their capaci-

ties as bodies of certain institutions. Such collective agreements are not intended or

capable to give individual employees a right to litigate over an alleged breach of their

terms as may be conceived by them to have affected their interest, nor are they

meant to supplant or even supplement their contract of service.” - Per Uwaifo, J.C.A.

in U.B.N. Ltd. v. Edet Suit No. CA/E/12/90; (1993) 4 N.W.L.R. (Pt. 287) 288 at 298.

(2) “The learned trial Judge was also in error to have applied the provisions of the

booklet (Exh.13) titled “Recognition and Procedural Agreement and Main Collective

Agreement between the Nigeria Employers’ Association of Banks, Insurance and

Allied Institutions and the Association of Senior Staff of Banks Insurance and Finan-

cial Institutions.” This is because he failed to advert his mind to the fact that both the

plaintiff and the defendant in the case before him have not adopted the contents of

the document as forming part of the respondent’s term of employment. It is definitely

necessary to expressly adopt the provisions of the document either in the letter of

appointment or in a subsequent communication varying the terms of employment

before the respondent could enforce its contents against the appellant.” - Per Akintan,

J.C.A. in U.B.N. Ltd. v. Edet Suit No. CA/E/12/90; (1993) 4 N.W.L.R. (Pt. 287) 288

at 304.