MANAGEMENT BOARD, UMTH v. SAMBO (2021)

MANAGEMENT BOARD, UMTH v. SAMBO

(2021)LCN/14932(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, January 28, 2021

CA/A/356/2017

RATIO

FAIR HEARING: PRINICIPLES OF FAIR HEARING

Fair hearing firstly implies that both/all sides be given an opportunity to present their respective cases, each side should know the case being made against it and be given an opportunity to make a response. It is the right of equal and reasonable opportunity by the Court to the parties for the presentation of their respective cases in the proceedings. See Section 36 (1) 1999 Constitution and the cases of ELIKE V. NWAKWOALA & ORS 1984 LPELR 1118 SC, PAUL UNONGO V. APER AKU & ORS 1983 11 SC 129, ADIGUN V. A-G OYO STATE 1987 1 NWLR PT. 53 678, NIGERIAN AGRICULTURAL CO-OP & RURAL DEV. BANK LTD. V. MBIO OKU IKOT ODUNG MULTI-PURPOSE CO-OP SOC. LTD AND ORS 2013 LPELR 20202 CA and LAGOS SHERATON HOTEL & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION 2014 LPELR-23340 CA.
Section 36 (1) of the 1999 Constitution states thus:
“in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The apex Court in the case of AC & ANOR v. INEC 2007 LPELR-66 SC interpreted the foregoing provision thus:
“… The substance of the foregoing provisions is that in any action or proceeding relating to the determination of the civil rights and obligations of a person initiated by or against any government or authority, the said action or proceedings should be heard within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to ensure its independence and impartiality.”

Tobi J.S.C. as he then was expounded it thus, in the case of SABIRU ADEBAYO V. A-G OGUN STATE 2008 33 NSCQR VOL. 1 P. 1:
“The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user … it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.”
It is pertinent to state that, the question whether or not there was a denial of a party’s right to fair hearing lies in the procedure followed in the determination of a case not whether or not the decision is correct. An appellate Court will not save a correct decision where there has been a breach of a party’s right to fair hearing. See the cases of OLUFEAGBA V. ABDUR-RAHEEM 2009 40 NSCQR 684, THE REGENCY COUNCIL OF OLOTA OF OTA & ORS V. O.T. DADA & ORS 2013 LPELR-CA/1/34/97, SAMBA PETROLEUM LTD. V. UBA 2010 43 NSCQR 119, SALEH V. MONGUNO 2003 1 NWLR PT. 801 221 and NDUKAUBA V. KOLOMO 2005 1 SC PT. 1 amongst a host of others. And where it is found that there is a denial indeed of a party’s right to fair hearing, the whole proceedings will be vitiated and rendered null and void. There is no requirement from a person in whose favour denial is found to prove that he suffered a miscarriage of justice. See the cases of MPAMA V. FBN PLC. 2013 5 NWLR PT. 1346 175 and THE REGENCY COUNCIL OF OLOTA OF OTA supra. PER WILLIAMS-DAWODU, J.C.A.

LABOUR LAW: WHEN IS AN EMPLOYMENT WITH STATUTORY FLAVOUR

An employment with statutory flavor is when its conditions of service are provided for and protected by statute or regulations there under; any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In disciplining such an employee, the procedure laid down by the applicable statute or regulation must be fully complied with. If the laid down statute or regulations is contravened materially, any decision affecting the right or tenure of office of that person may be declared null and void in appropriate proceedings. See the cases of BAMGBOYE V. UNIVERSITY OF ILORIN 1999 6 SC PT. 11 72, SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION 1981 1 SC REPRINT 26 and OLANIYAN V. UNIVERSITY OF LAGOS NO. 2 1985 2 NWLR PT. 9 599. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

MANAGEMENT BOARD UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL APPELANT(S)

And

MAHMOOD DAJE SAMBO RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, Abuja, delivered on May 2nd, 2017 by Hon. Justice P. O. Lifu wherein the claims of the Respondent (the Claimant at the Court below) were granted against the Appellant (the Defendant at the Court below) for wrongful dismissal of the Respondent by the Appellant.

The Respondent commenced his action by an Originating Summons as amended, firstly at the Federal High Court and was transferred to the National Industrial Court given the nature of the suit and where he sought the following reliefs:
1. A declaration that the purported dismissal of the plaintiff by the defendant is null and void.
2. A declaration that the plaintiff is still and remains an employee of the defendant.
3. An order reinstating the plaintiff back into the defendant (sic) employment.
4. An order directing the payment of the plaintiffs (sic) salaries and entitlement from 13th June 2011.
5. The cost of the suit.

Prior to the Respondent’s suit as garnered from the Record, he was the Assistant Director of Finance of the Appellant. Upon the report of a three (3) man- Adhoc Committee, based on the petition against one Yusuf Bukar of the Finance Department of the Appellant, which report was further considered by a seven (7) man — standing Committee, the Respondent was summarily dismissed from the employment of the Appellant.

Being dissatisfied with the decision of the Court below, the Appellant’s Notice of Appeal was dated and filed on May 16th, 2017, with two (2) grounds of appeal. There is a Supplementary Record of Appeal also filed June 16th, 2017.
The following issues were submitted by the parties.

Appellant’s Issues:
1. Whether the failure by the learned trial Judge to consider the case put forward by the respondent in its counter-claim did not amount to a denial of the right to a fair hearing (Ground 2).
2. Whether the learned trial Judge was right when he held that the appellant failed to accord the respondent the opportunity of making representation before he was summarily dismissed and by so doing denied him a fair hearing (Ground 1).

Respondent’s Issues:
i. Whether from the state of the pleadings and evidence adduced before the Court below, the trial Judge was right in reaching a decision that the respondent’s dismissal was null and void having not been accorded the right of fair hearing.
ii. Whether or not the appellant’s counter-claim was considered and determined by the Court below.

The two (2) foregoing sets of issues in my view and humbly, in content, seek the same thing, though formulated and couched differently. In that wise, I shall adopt the set of issues by the Appellant being the aggrieved party satisfied that they will assist to determine this appeal fairly and justly.

In compliance with the Rules of this Court, the parties filed and exchanged their briefs of argument. At the hearing of the appeal, Mr. H. M. Garga for the Appellant adopted the Appellant’s brief which was dated July 4th, 2017, filed July 10th, 2017 and was settled by Prof. B. A. Bukar and urged that the appeal be allowed. Mr. K. J. Ntafa adopted the Respondent’s brief dated July 18th, 2017, filed July 24th, 2017, which was settled by him. He urged that the appeal be dismissed.

SUBMISSION ON BEHALF OF THE APPELLANT
Mr. Garga Esq. for the Appellant submitted that the lone issue by the Court below was so narrow such that, it did not take into account the Appellant’s counter-claim and that the Court failed to consider the pleading and evidence of the Counter-claimant. He argued that, there ought to be another judgment on the Counter- claim and in support cited the case of OROJA V. ADENIYI 2017 6 NWLR PT. 1560 P. 138. That, the Court only made a general statement in respect of the entire evidence before it and nothing indicated actual assessment of the evidence in respect of the Counter-claim. That, the concept of fair-hearing under Section 36 (1) of the 1999 Constitution was breached as regards adequate consideration of the case of the parties, weighing of evidence with probative value on an imaginary scale and cited in support the case of EJEKA V. THE STATE 2003 7 NWLR PT. 819 P. 408. Further that, the dismissal of the Counter-claim did not flow from the appraisal or evaluation of the evidence.

He submitted that the Respondent was afforded the opportunity of making a presentation to the Complaints and Petitions Committee of the Appellant which was detailed to investigate the petition

written about the Respondent on the opening of illegal account, signed by him wherein he admitted the complicity of the opening of the illegal account. He cited in support the case of DONGTOE V. CSC, PLATEAU STATE 2001 9 NWLR PT. 717 P. 132. He submitted that the Respondent’s admission in Exhibit MDS 010 binds him. He contended that, where Exhibit MDS 010 is read with the testimony of the co-signatory, one Mohammed Saleh Kassim, will remove any need for questioning the Respondent on the opening of the illegal account. Therefore, the Appellant was not obliged to subject the Respondent to a trial and the Committee had no duty to give right of cross-examination to the Respondent in view of Exhibit MDS 010 amongst others. In conclusion, he urged that, the decision of the Court be set aside and the Respondent’s dismissal be affirmed.

SUBMISSION ON BEHALF OF THE RESPONDENT
Mr. Ntafa Esq. submitted on behalf of the Respondent that the latter’s dismissal from service on 13/6/2011 was wrong, null and void as the Respondent was not given fair hearing in accordance with the 1999 Constitution of the Federal Republic of Nigeria as well as the provisions of

the terms of his employment, the University Teaching Hospital’s (Reconstitution of Boards, etc.) Act, 1985. He argued that, the Appellant failed to justify the only reason it gave for the dismissal of the Respondent, the opening of an illegal account and cited the case of ANGEL SPINNING AND DYEING LTD. V. AJAH 2000 13 NWLR PT. 685 352. The dismissal of the Respondent he submitted was not in accordance with the conditions under Section 9 of the University Teaching Hospital Act and therefore, was wrong and cited the cases of UNILORIN V. ADENIRAN 2007 6 NWLR PT. 1031 498 and OBIOHA V. DAFE 1994 2 NWLR PT. 325 173. He argued that, the Committee sat only on the issue of falsification of salary payment against one Yusuf Bukar and not illegal opening of account against the Respondent and that the Respondent appeared before the Committee as a witness to throw more light on the issue. Therefore, he was not given an opportunity to make representation and defend himself before the Committee. In support he cited the case of ADENIYI V. GOV. COUNCIL YABA TECH 1993 6 NWLR PT. 300 426 and also the evidence of DW2, one Mohammed Maina Mustapha, a member of the three

man-Committee and DW3, one Bala Abubakar Aliyu, member of the 7-man Committee which deliberated on the report of the 3-man Committee. He submitted that, the Court found that, there was no single question put to the Respondent on illegal opening of account. Therefore, Section 9 was breached and Section 36 (1) of the 1999 Constitution as amended and the Rules of natural justice. In support he cited the cases of UNTHMB V. NNOLI 1992 6 NWLR PT 250 752 and OYEYEMI V. COM FOR L.G 1992 2 NWLR PT. 226 661. The removal was consequently done unlawfully contrary to the statutory powers of the Appellant and the Respondent is entitled to reinstatement he added and cited in support the case of IWUCHUKWU V. NWIZU 1994 7 NWLR PT. 357 379.

He asserted that, the Court duly considered the Appellant’s Counter-claim in the judgment as an independent action. He argued that, judgment on a Counter-claim can be given in a single final judgment and not necessarily a separate judgment and cited the case ofADEROUNMU V. OLOWU 2000 2 SCNJ 180. He submitted that the Court evaluated Exhibit MDS 010 and found on same. There was therefore, no miscarriage of justice and cited the case of

KHALIL V. ODUMADE 2000 3 NSCQR 169. In conclusion, he urged that the appeal be dismissed and to affirm the judgment of the Court below.

THE POSITION OF THE COURT
I have calmly and carefully considered the submissions by both sides and the Record before this Court, having so done, I proceed to consider the issues already adopted which shall be considered one after the other beginning in the reverse order. The issues are hereunder reproduced for ease of reference:
ISSUE 2
Whether the learned trial Judge was right when he held that the appellant failed to accord the respondent the opportunity of making representation before he was summarily dismissed and by so doing denied him a fair hearing (Ground 1).
From page 152 of the Record as stated by the Court and as testified by the witnesses, from the Exhibits before the Court, there were two panels set up by the Appellant, Exhibit MDS 08 was the 3 man panel of investigation and Exhibit MDS 011 was the 7-man Committee. The Court found that the Respondent was invited to the three (3) man Committee as a witness, not to go and defend himself but to the seven (7) man Committee to go and

defend himself. In my respectful view, what transpired before the 7-man Committee was not proper defence. In the report itself, it was referred to as interview, more or less like fact finding session rather than a situation of putting the Respondent on the spot, having prior notice that he needed to answer to allegations against him. One also finds from Exhibits MDS 08 and MDS 011 that, the interviews or interactions with both Committees were based solely on overpayment in staff salaries. As the Court found on page 153 of the Record and stated thus:
“……..Looking at Exhibits 08 and 011, there is no single question put to the claimant by the 7- or 3-man committee on the issue of illegal opening of account. For e.g., the Nine questions put to him on Exhibit 11 never touched on the issue of opening of illegal bank account.”

The Respondent was summarily dismissed from the service of the Appellant by Exhibit 05 on the ground of illegal opening of bank account. As found by the Court and having carefully read through the whole Record including the Exhibits, the issue of illegal opening of account did not feature in the questioning of the Respondent.

Further in my humble view as already stated, the record of his appearances before the two Committees could not be said to be for defence with prior notices of allegations against him to be answered the way it ought to be. Respectfully, it should not have been in the same question and answer pattern as with the other members of the Finance Department since the allegations were stronger against him. Moreover, he was a key player in the running of the Department and perhaps one of the key suspects.

2013 LPELR 20202 CA and LAGOS SHERATON HOTEL & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION 2014 LPELR-23340 CA.
Section 36 (1) of the 1999 Constitution states thus:
“in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The apex Court in the case of AC & ANOR v. INEC 2007 LPELR-66 SC interpreted the foregoing provision thus:
“… The substance of the foregoing provisions is that in any action or proceeding relating to the determination of the civil rights and obligations of a person initiated by or against any government or authority, the said action or proceedings should be heard within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to ensure its independence and impartiality.”

host of others. And where it is found that there is a denial indeed of a party’s right to fair hearing, the whole proceedings will be vitiated and rendered null and void. There is no requirement from a person in whose favour denial is found to prove that he suffered a miscarriage of justice. See the cases of MPAMA V. FBN PLC. 2013 5 NWLR PT. 1346 175 and THE REGENCY COUNCIL OF OLOTA OF OTA supra.

The Court found that the Respondent’s employment is statutorily flavoured and therefore, the process for his dismissal it stated as follows:
“… as a matter of law and facts follows (sic) the rigorous dictate of law establishing the defendant and the Public Service Rules.”

any decision affecting the right or tenure of office of that person may be declared null and void in appropriate proceedings. See the cases of BAMGBOYE V. UNIVERSITY OF ILORIN 1999 6 SC PT. 11 72, SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION 1981 1 SC REPRINT 26 and OLANIYAN V. UNIVERSITY OF LAGOS NO. 2 1985 2 NWLR PT. 9 599.

According to the Court and rightly, “The law is that a person likely to be affected directly by the disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his defence.”
He referred to the Public Service Rule 030 307 VI which states that:
“The officer shall be informed that on a specific day, the question of his/her dismissal shall be brought before the board and she/he shall be entitled to call witnesses. His/her failure to appear shall invalidate the proceedings of the board.”
Rule 030 307 (VII) as follows:
“Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put question to the witness and no documentary evidence shall be used against the officer unless he/she has previously been supplied with copies thereof or given access thereto.”

The Court on page 153 of the Record added that the rule of natural justice must also be complied with. It found and stated thus on page 154 of the Record:
“There is no evidence before the Court to show that these provisions were compiled with by the disciplinary committee. Moreover, going through the deliberations of Exhibit 011, there is no evidence of any opportunity given for any cross-examination.
The opening paragraph of Exhibit 05 is most misleading to say the least … It is misleading because, there was no investigation carried out on illegal account by the committee as revealed in Exhibit 011”
See pages 154 and 155 of the Record.
In view of the foregoing and having very carefully considered the Record, one does not have any problem whatsoever in agreeing with the findings of the Court. There is no record of the Respondent being notified of the opportunity to defend himself on the allegation of the opening of

illegal account. One is therefore unable to agree with the argument that he was given a fair hearing before been handed down the conclusion reached by the Committees. In consequence, issue 2 is hereby resolved against the Appellant.

ISSUE 1
1. Whether the failure by the learned trial Judge to consider the case put forward by the respondent in its counter claim did not amount to a denial of the right to a fair hearing.
From the Record, the Appellant filed Counter-claim as contained in the Supplementary Record on pages 272-276 and pages 274-275 in particular. In the main, the Appellant countered claimed as follows:
a) An order compelling the claimant/defendant to counterclaim to refund the sum of N58 million (fifty-eight million naira) to the counter-claimant being the total amount improperly lodged into account No. 1905949265613 UMTH A/C with Afribank (Nig.) Plc, (Mainstreet Bank Ltd) between December, 2008 — May, 2010 and expended by the claimant/defendant to counterclaim in a manner and for purposes not connected with his office or employment.

b) Cost of the suit.

The proceedings of the Court spanned from pages 113 to 143 of the Record. On page 132 of the Record, the defence commenced. On pages 136 of the Record, the Appellant tendered three documents, Exhibits MDS 09, 10 and 011. On page 137 of the Record, during cross-examination, DW3, Buka Abubakar Aliyu, testified as follows:
“…. on 7-man report we never interacted on opening of illegal accounts.
But the 3-man committee handled that aspect, the Exhibit 10 was not addressed to Defendant. This Exhibit was signed by Claimant only Claimant signed, the EFCC intervened and the Claimant is now in prison custody EFCC is now prosecuting him on this matter and he refuse (sic) to refund at (sic) but I don’t know whether EFCC is prosecuting.”

The defence closed its case on DW3 as it announced it was calling no other witness on the next adjourned date, October 5th, 2016 and on January 30th, 2017, final written addresses were adopted and the matter was adjourned for judgment. In its evaluation of evidence, the Court on page 153 of the Record had this to say on its finding with regard to the Counter-claim:
“I have equally combed the entire gamut of the evidence in this case; I have not seen any finding or

justification as to how the defendant came about the issue of N58,000,000.00 (fifty-eight million naira) only. Exhibit 10 have (sic) been denied by the claimant. The Exhibit mentioned about six people who are supposed to refund the said money but only one person signed the said agreement when agreement is supposed to be between two or more persons … In a situation where parties to the agreement are not stated nor endorsement made to that effect, one would have expected the defence to provide additional evidence to substantiate or prove the authorship of this document particularly in the face of a denial as it was not addressed to anyone.”
See pages 153-154 of the main Record.

From the proceedings, as contained in the Record particularly, the aspect of the defence which concerns the Counter-claim, one finds that the averment of the DW3 in his statement on oath is different from his testimony during trial. He claimed in his witness statement on oath that it was revealed during the

investigations that the Claimant without authority unilaterally opened an account referred to in Exhibit MDS 09. Exhibit MDS 010 which is the said agreement to refund and Exhibit MDS 011, the report of the Seven-man committee, in my view and humbly, though tendered, were, thrust on the Court, as they were not explained or tied to any particular and relevant pieces of evidence in the Appellant’s case. It needs be mentioned that the statements on oath of the DW1, DW2 and DW3 did not assist the Counter-claim which specifically was about the stated sum of N58 Million for refund. Particularly, the statement of DW3 who tendered the Exhibits and failed to relate them to the Counterclaim, in a case where there was a denial by the Respondent. In fact, the content of DW3’s statement was different from his testimony upon cross — examination, where he stated that the Committee never interacted with the Respondent on the opening of illegal accounts, on page 137 of the Record. It was a similar thing in the case of DW2, Mohammed Maina Mustapha who testified that the 3-man committee sat on the issue of salary over payment which confirms the content of the report,

Exhibit MDS 08. DW1 in my humble view, from her evidence testified that the alleged illegal account was opened at the branch of Afribank where she was at the time. However, as regards the claim of the Appellant for the sum of N58 Million Naira, one is equally unable to find that the case of the Appellant for N58 Million has been proved. From Exhibit MD07 a-q, they are documents on the alleged illegal account, but the question is, how did the Appellant arrive at the figure, N58 Million. Except this Court begins to add and subtract, do the computation which the Appellant through its witnesses failed to do and which is not the business for the Court, so as to arrive at the stated amount of N58 Million between the sums deposited and those withdrawn from the account.

From carefully reading through the gamut of the Record, particularly the judgment of the Court below, one is unable to agree with the submission that it failed to consider the Counter-claim of the Appellant and therefore denied the Appellant fair hearing. It clearly found on page 153 of the Record where it categorically stated that there was no justification as to the figure, N58 Million, by the

Appellant. As one finds, it would appear that, only Exhibit MDS 010 contains the stated sum of N58 Million. Proof in civil matters is by the balance of probabilities or preponderance of evidence. The evidence to be established in proof of the Appellant’s case must preponderate, which is not the case with the specific sum of N58 Million Naira. The style of judgment writing of the Court, which is peculiar to each Court, is as one finds, may not have separately or specifically, lay out as argued, the Appellant’s counter-claim. Be that as it may, one nevertheless finds that, the Counter-claim had been considered and a decision was reached in respect of same.

In the light of its finding which one agrees with, the Counter- claim of the Appellant was not established. The appeal on the overall fails and cannot be allowed. It is hereby dismissed accordingly.
Parties shall bear their individual costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft of the judgment just delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
I agree with the reasoning and the conclusion which I adopt as mine. I too, dismiss the appeal.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Mr. H. M. Garga For Appellant(s)

Mr. K. J. Ntafa For Respondent(s)