ALHAJI MOHAMMED BALA AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR. (2010)

ALHAJI MOHAMMED BALA AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR.

(2010)LCN/3651(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of March, 2010

CA/A/274/2007

RATIO

CONTRACT: HOW SHOULD THE COURT DETERMINE ISSUES BEFORE IT RELATING TO CONTRACT INVOLVING SEVERAL DOCUMENTS RELATED TO IT

Where a contract, including contract of employment involves several documents the trial court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. It is in Keeping with the principle above that in interpreting that contract which involves several documents, the documents must be read together. Attorney Genera, Kaduna State v. Atta (1986) 4 NWLR (pt. 38) 785; Leyland (Nig.) Ltd. v. Dizengoff W.A. (1990) 2 NWLR (pt 134) 610; Royal Exchange Assurance (Nig.) Ltd. v. Aswan, ile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639; CBN v. Igwillo (2007) 14 NWLR (pt. 1054) 393.

misinterpreting the intention of the contracting parties such parties are and manifest. I rely on Attorney-Genera, Kaduna State v. Atta (1986) 4 NWLR (PT. 38) 785 (CA); Central, Ban, of Nigeria anor v. Mr, Agnes Igwillo (2007) 14 NWLR (pt. 1054) 393, PER MARY U. PETER-ODILI, J.C.A

LABOUR LAW: CATEGORIES OF CONTRACT OF EMPLOYMENT

There are roughly three categories of contract of employment. They are:-

(a) those regarded as purely master and servant;

(b) those where a servant holds office at the pleasure of the employer; and

(c) those where the employment is regulated or governed by statute, otherwise known as having statutory flavour, Olaniyan v. University of Lagos (1985) 2 NWLRC (pt. 9) 599. PER MARY U. PETER-ODILI, J.C.A

LABOUR LAW: WHAT CONSTITUTES A STATUTORY FLAVOURED EMPLOYMENT

Simply, there is without doubt a contract of employment and the nature of it is the basis of this dispute. That fact that an employer is a creation of a statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their employment must necessarily have a statutory flavour. Fakuade v. O.A.U.T.H.C.M.B (1993) 5 NWLR (Pt. 291) 47 Ideh v. Unilorin (1994) 3 NWLR (Pt. 330) 81 at 88 per Abdullahi J.C.A (as he then was). PER MARY U. PETER-ODILI, J.C.A

LABOUR LAW: REMEDIES FOR WRONGFUL TERMINATION OF CONTRACT OF EMPLOYMENT PROTECTED BY STATUTE

It is a fact that, when an employee service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition damages representing his salaries during the period of other entitlements. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.

Put in another way, where the contract of service is governed by the provisions of a 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. It accordingly enjoys statutory flavour. In this class of cases the court invariably is prepared to re-instate the servant by granting declarations and injunctions and any dismissal of a servant under this class of contract of employment must accord with the rules of natural justice. Jirgbagh v. UBN Plc (2001) 2 NWLR (pt. 396) 11 at 25; Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303; Adedeji v. Police service Commission (1968) NMLR 102; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v, Unilag (1985) 2 NWLR (pt. 9) 599. PER MARY U. PETER-ODILI, J.C.A

LABOUR LAW: EXCEPTIONS TO THE RULE THAT AN EMPLOYER IS NOT BOUND TO FOLLOW A PROPER PROCEDURE IN SUMMARILY DISMISSING AN EMPLOYEE

Although an employer is not bound to follow a proper procedure in summarily dismissing an employee, there is a long line of judicial authorities identifying some exceptions where to properly and effectively terminate a contract of employment the employer has to follow the proper procedure. The following are the exceptions:

(a) where the contract itself has made provisions for a procedure to be followed, that procedure has to be followed to effectively determine the contract;

(b) where a statute regulated the appointment and dismissal of a servant, the requirements of the statute must be complied with. In that case, the master/servant relationship has what is known as a ‘statutory flavour’.

(c) the other third category affects holders of offices involving public function. Here, the rules of natural justice must be complied with in the dismissal. Jirgbagh v. Union Bank Nigeria Plc (2001) 2 NWLR (pt. 696) P.11; F.C.S.C. v. Laoye (1989) 2 NWLR (pt. 106) 652; Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303. PER MARY U. PETER-ODILI, J.C.A

JUSTICES

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

ALHAJI MOHAMMED BALA AUDU Appellant(s)

AND

1. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD
2. MINISTER OF PETROLEUM RESOURCES ABUJA Respondent(s)

MARY U. PETER-ODILI, J.C.A: The appeal stems from the decision of the Federal High Court of Nigeria Abuja, Coram, Honourable Justice S.J, Adah which decision was delivered on the 17th November, 2006 against the Plaintiff who being dissatisfied has appealed to this court upon a Notice of Appeal filed on 16/2/07 and the Notice of Appeal had five grounds which I shall state hereunder without its particulars namely:-
GROUND 1:
The Honourable Trial Court erred in law when it held that the employment of the Appellant (Plaintiff) did not have statutory flavour but purely a simple contracted master servant relationship.
GROUND 2:
The Honourable Trial Court erred in law when it held the employment of the appellant (Plaintiff) was not governed by the Federal Civil Service Rules.
GROUND 3:
The Honourable Trial Court erred in law when it held that the termination of the Plaintiffs (six) employment with the 1st Defendant was proper legitimate and lawful, despite its earlier finding of fact that the 1st Defendant by relying on the rules had intended that it shall govern the employment of the Plaintiff.
GROUND 4:
The Honourable Trial Court erred in law when it held that though the allegation against the Plaintiff which is leaking official servant is a crime, in a contract of employment situation, such as this, the employer has the option either to prosecute the staff in a court order with the staff administratively.
GROUNDS:
The Honourable Trial Court erred in law when it held that the ingredient of fair hearing abound in the dealing (sic) with the Plaintiff was given fair hearing in this matter before he was terminated.
FACTS RELEVANT TO THIS APPEAL:
The Plaintiff/Appellant in this case took out a Writ of summons dated the 9th day of May, 2001 and filed it on the same day, against the Defendants/respondents. See page 3 of Record dated 17/3/2004 and filed on the 25/5/2005 claimed against the Defendants/Respondents jointly and severally as follows:
(a) A declaration that the offences he was alleged to have committed were criminal in nature and ought to have been tried by a Court of law.
(b) A declaration that the purported termination of his employment by the Defendants based on the decision of the senior staff enquiry above mentioned is wrongful, null and void.
(c) A declaration that it is Ultra vires the powers of the Senior Staff Committee and/or any staff of the Defendants to dismiss or terminate his employee on allegation of commission of criminal offences in the Circumstances of this case.
(d) An Order of Court nullifying the Defendant’s letter of termination of employment of the Plaintiff dated 16/2/2001 on account of matters aforesaid.
(e) An Order of Court compelling the Defendants to reinstate the Plaintiff in his position in the services of the 1st Defendant and pay all his due accrued salaries and entitlement from the purported termination till final liquidation.
(f) An Order of Court directing the Defendants by themselves, agents, servants and/or privies to put him back to possession of his official residential accommodation being Block A, Flats, Petroleum Equalization Staff Housing Estate Garki, Abuja.
(g) Cost of this action.
ALTERNATIVELY:
The sum of N5,000,000.00 (Five Million Naira) only being damages for wrongful dismissal/Termination of the employment of the Plaintiff. See pages 313-319 of the Records.
Mr. Asoluka, learned counsel for the Appellant adopted the Appellant’s Brief filed on 29/1/08 and deemed filed on 15/10/08, wherein were formulated four issues for determination which are:-
1. Whether the Honourabie Trial Court was right in holding that though the allegation against the Appellant, which is leaking official secret is a Crime, in a contract of employment situation, such as this, the Respondents has the option either to prosecute the Appellant in Court or deal with him administratively.
2. Whether the Honourable Court was right in its decision that the employment of the Appellant/Plaintiff was not governed by the Federal Civil service Rules.
3. Whether the Honourable Trial Court was right in holding that the employment of the Appellant/Plaintiff did not have statutory flavour but was a contractual relationship of master and servant.
4. Whether the Trial Court was right in its decision that the Plaintiff/Appellant was given fair hearing before his employment was terminated.
The respondent through its counsel, Mrs. Amenger adopted their Brief filed on 12/11/08. The respondents on their own part formulated three issues.
1. Whether or not the appointment of the Appellant with their first Respondent was validly terminated.
2. Whether the termination of the appellant’s appointment will be wrongful in the light of failure to prosecute the appellant in the Court of law on some of the allegations against him that had criminal flavour.
3 whether or not the Appellant was given fair hearing before his employment was terminated.
I find the issues as couched by the Respondent as more suitable for the purpose of determining this appeal, I shall therefore use them.
ISSUE NO: 1-3
Whether or not the appointment of the Appellant with the first Respondent was validly terminated.
Whether or not the appellant was given a fair hearing before his employment was terminated.
Learned counsel for the Appellant, Mr. Asoluka stated that there are rightly three categories of contract of employment and they are:-
(a) Those regarded as purely master and servant.
(b) Those where a servant holds office at the pleasure of the employer; and
(c) Those where the employment is regulated or governed oy statute, otherwise known as having statutory flavour.
He cited Olaniyan v. University of Lagos (1985) 2 NWLR (pt 9) 599.
He said an employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other (2007) 14 NWLR (pt. 1054) 393 at 420; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (pt 732) 116 at 165 para D – H. Ideh v. University of Ilorin (1994) 3 NWLR (pt. 330) 81. Mr. Asoluka said the Plaintiff/Appellant has statutory flavour for the following reasons:
(a) The 1st Defendant is an Agency of the Federal Government set up by the Petroleum Equalization Fund (Management) Board Act Cap. 352 LFN.
(b) The Appellant by virtue of his employment a public servant in accordance with the provisions of Section 318 of Constitution Federal Republic of Nigeria 1999.
(c) The Defendants adopted the Federal Civil Service Rules in their procedure in disciplining and terminating the employment of the Appellant
(d) The appellant was issued a query for contravening the provisions of the Federal Civil service Rules.
(e) The Appellant’s appointment was terminated in accordance with the Federal Civil Service Rules and in the interest of the Federal Civil service. That the learned trial Judge erred when it held that only those parts of the Public service Rules utlised by the 1st Defendant is by implication applicable to the employment of the Plaintiff and not the entire Public Service Rules which ran contrary to the principle that in the interpretation of a contract involving several documents, the law enjoins the courts to read the documents together. He cited CBN v. Igwillo (2007) 14 NWLR (pt 1054) 393 at 433; Jirgbagh v. U.B.N. Plc (2001) 2 NWLR (pt 696) 11; Attorney General Kaduna State v. Atta (1986) 4 NWLR (pt. 38) 785.
Learned counsel for the Appellant said the employment of the plaintiff being one protected by statute, his dismissal must be in accordance with the provisions of the statute i.e Federal Civil service Rules. That the termination of the employment of the appellant by the Respondents is at variance with Exhibit ‘C’, the Federal Civil Service Rules, which the trial Court in its findings agreed the respondents adopted in disciplining and terminating the employment of the appellant. That by virtue of Section B, Rules 04 306 of Exhibit ‘C’, only the Federal civil Service Commission is competent to dismiss or terminate Appellant’s employment which was not the case here. That the Respondent’s accused the Appellant at the same time embarked on the process of inquiring and investigation and dismissed the Appellant rather than the Federal Civil Service Commission and to that Respondents sat in judgment in their own case. That the Public Service Rules section 3 Rules 04 306 (v) does not allow any Head of Department of an accused officer to be a member of the Panel that I would investigate him. He said Appellant gave the uncontradicted evidence that his Head of Department, Alhaji Aminu Salmanu was a member of the Senior Staff disciplinary committee that investigated him. Also not controverted is the evidence of the document relating to the alleged offence of leakage of official information was not shown to the Appellant 72 hours before the day he appeared before the panel as required by Public Service Rules (Exhibit ‘C’), Section 3 Rules 04 306 (vi – viii). That from the evidence, a copy of a petition allegedly signed by the Plaintiff and an extract of a public report used by the panel against Appellant was shown to him when he appeared before the panel and he was asked to react and so was not given reasonable time to examine the documents used against him and to defend himself adequately.
Responding, Mrs. Amenger for the 1st Respondent contended that by virtue of Section 4 (3) of the Petroleum Equalization Fund (Management) Board Act Cap. 352 LFN 1990, all employees of the 1st Respondent are subject to the general control of the Executive Secretary of the 1st Respondent. Pursuant to the section aforementioned the executive secretary by a letter dated 11th March, 1997, sought and obtained approval of the 2nd Respondent for the adoption of the condition of service, salary and fringe benefit applicable to NNPC. That by that approval, the condition of service guiding all the appointments of all employees of the first Respondent is that of NNPC. He referred to Exhibits ‘D1 and D2’. That Exhibit ‘1’ which was accepted, Exhibit 1(a) in the Appellant’s Letter of Employment with the 1st Respondent, it was clearly stated therein that the Appellant’s employment is governed by the 1st Respondent’s condition of service which Appellant consents to and expressly accepted.

Mrs. Amenger further stated that an employee who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and in what manner the wrong was done. Those parties are bound by their contract and the duty of court is to strictly interpret the document that gave rise to the contractual relationships. She said, no party has the right to elevate an ordinary contract of master and servant (as in this case) to the status of one with statutory flavour so as to acquire a better deal. She referred to Obu v. NNPC (2003) 9 WRN 76 at 92; Abdullahi Baba v. Nigerian Civil Aviation training Centre, Zaria & anor (1991) 5 NWLR (pt. 192) 388 at 437.Mrs. Amenger submitted that there was good ground that warranted the termination of the Appellant from employment. She referred to Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC 40; Okomu Oil Palm Company Ltd. v. O. S. Iserhienrhien (2001) 5 NSCQR 802 at 812.
Learned counsel for the Respondent said, Section 35 of the Evidence Act places the onus of proof on the appellant not to merely prove there was wrong but that he himself is a Public Officer for whom the wrong had injured. She said the Appellant had failed to discharge that onus to secure the indulgence of the scale of justice swinging its pendulum in his favour and this failure is fatal to the case of the Appellant.

On the matter of whether or not the rules of natural justice were adhered to learned counsel for the respondent said they fully complied with those rules of natural justice as can be seen in Exhibits ‘5, 6, 8, 9 and D3’ of the record.
Also, she said that even if non compliance with the rules did not occasion miscarriage of justice, it will not vitiate the proceedings. She cited Sule v. N.C.B (2003) 38 WRN 87; (1986) 3 NWLR (pt. 28) 304; Orugbo v. UNA (2002) 46 WRN for the test of fair hearing which is the impression of a reasonable person who was present at the trial. She further referred to Mohammed v. Kano N.A. (1968) 1 AH NLR 424, FunduK Engineering Ltd. v. McArtnur (1995) 4 NWUR (pt. 392) 640; Yakubu v. The Governor of Kogi State (1995) 8 NWLR (pt. 414) 386.

There are roughly three categories of contract of employment. They are:-
(a) those regarded as purely master and servant;
(b) those where a servant holds office at the pleasure of the employer; and
(c) those where the employment is regulated or governed by statute, otherwise known as having statutory flavour, Olaniyan v. University of Lagos (1985) 2 NWLRC (pt. 9) 599.

An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. CBN v, Igwillo (2007) 14 NWLR (pt. 1054) 393 at 420; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakude v. O.A.U.T.H. (1993) 5 NWLR (pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (pt. 330) 81; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (pt. 732) 116.
Simply, there is without doubt a contract of employment and the nature of it is the basis of this dispute. That fact that an employer is a creation of a statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their employment must necessarily have a statutory flavour. Fakuade v. O.A.U.T.H.C.M.B (1993) 5 NWLR (Pt. 291) 47 Ideh v. Unilorin (1994) 3 NWLR (Pt. 330) 81 at 88 per Abdullahi J.C.A (as he then was).
For a clearer understanding I shall quote verbatim the Offer of Employment by the Respondent Exhibit ‘A’ and the acceptance letter of the Appellant and these are viz:-
“Petroleum Equalisation Fund (Management) Board Ref: PEF/33/V.1
Date: July 23, 1997
Mohammed B. A.
National Population Commission
P. M. B. 2175
Sokoto,
Sokoto State
Dear Mr. Mohammed B.A.,
OFFER OF EMPLOYMENT
I am pleased to convey to you the decision of the Management of this board to offer you employment as Chief Officer on a starting salary of N392,592 (Three Hundred and Ninety-two Thousand, Five Hundred and Ninety-two Naira) per annum on the Board’s Salary Scale SS1. The offer is with immediate effect and it is open until 15th August, 1977.
2. The fringe benefits attached to the employment include free medical service for you and your dependants as laid down in our Condition of Service, and the following allowances:
(i) Leave Allowance: 10% of Consolidated Annual Salary;
(ii) Housing allowance: N79,200
Other entitlements and obligations attached to this offer as contained in the Board’s Condition of Service.
3. The offer is subject to you passing medical test to be conducted by the Board’s doctor and a successful Police Clearance. Your employment therefore will be confirmed after 12 months of satisfactory probationary service. Within the first six months your credentials will be scrutinized and you will be subjected to an interview. Your performance on the job will be evaluated. The Board may terminate your appointment without notice within this period if your performance on the job is not satisfactory.
4. When assuming duty, kindly report to the undersigned and bring the following:-
(i) five passport photographs;
(ii) original and photocopies of certificates of Examination passed;
(iii) original and photocopies of Birth Certificate or Declaration of age;
(iv) original and photocopy of NYSC Certificate (if applicable); and
(v) duplicate copy of previous month’s salary Slip issued by the former employers (if applicable).
5. As an indication of your acceptance of this offer and conditions stated at paragraphs 3, please sign the attachment which should be returned to reach our office before 15th August, 1997.
Yours faithfully,
For: P.E.J. (M) Board
(Signed)
ALH. M. BAWA
General Manager (Services)”.
“ACCEPTANCE
I hereby acknowledge the receipt of and accept your offer of employment and the conditions stated.
I will resume duty 1-8-97
Signature (Signed) Date: 1-8-97
NAME: MOHAMMED BALA AUDU.”
The position taken by the Appellant at the court of trial and even at this appellate one is that, his employment was protected by statute and so certain special conditions must first be adhered to before his termination of employment can be validly effected.
It is a fact that, when an employee service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition damages representing his salaries during the period of other entitlements. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.
Put in another way, where the contract of service is governed by the provisions of a 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. It accordingly enjoys statutory flavour. In this class of cases the court invariably is prepared to re-instate the servant by granting declarations and injunctions and any dismissal of a servant under this class of contract of employment must accord with the rules of natural justice. Jirgbagh v. UBN Plc (2001) 2 NWLR (pt. 396) 11 at 25; Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303; Adedeji v. Police service Commission (1968) NMLR 102; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Olaniyan v, Unilag (1985) 2 NWLR (pt. 9) 599.
It is to be noted that, an employer is not obliged to give reasons for the dismissal of an employee. However, once reasons are given and they are disputed in court, the onus lay on the employer to justify the reasons by evidential proof which proof is that beyond reasonable doubt as provided for by Section 137 of the Evidence Act. See National Electric Power Authority v. John Ojo Adeyemi (2007) 3 NWLR (pt 1021) 315 CA.
At common law, an employer is not obliged to follow any particular procedure in summarily dismissed his servant. But where the dismissal is in breach of a fundamental term such as the giving of insufficient notice to terminate the contract, the servant has to accept the fact that the contract is at end and his only remedy lies in suing for wrongful termination of his contract of service. Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; Ikodibia v. Nigeria Cement Co. Ltd. (1997) 7 NWLR (Pt. 512) 174; Jirgbagh v. U.B.N. Plc. (2001) (Pt.699) 11.
An employer’s right of summary dismissal must arise from the terms express or implied in the contract of employment. However, the master/servant relationship being basically one founded in contract and subject to the vagaries of the Ordinary law of contract, the employer’s right of summary dismissal can be achieved by the incorporation of work rules or collective agreement into the contract of employment. Jirgbagh v. Union Bank of Nigeria Plc. (supra).
At common law, a master, in an ordinary master and servant relationship always has the right to terminate his servant’s employment on reasonable notice. Any ground which tends to show that the employee has outlines his usefulness or that his continued employment is no longer in the interest of the job is good ground. Baba v. Nigeria Civil Aviation Training Centre Zaria & anor. (1991) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC 40; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt. 106) 652.
The general principle is that the power to appoint implies the power to remove and so where the power to appoint is silent on the power to remove, that will be implied. See Okomu v. Oil Palm Co. v. Iserhienrhien (2001) 5 NSCQR 802.
Although an employer is not bound to follow a proper procedure in summarily dismissing an employee, there is a long line of judicial authorities identifying some exceptions where to properly and effectively terminate a contract of employment the employer has to follow the proper procedure. The following are the exceptions:
(a) where the contract itself has made provisions for a procedure to be followed, that procedure has to be followed to effectively determine the contract;
(b) where a statute regulated the appointment and dismissal of a servant, the requirements of the statute must be complied with. In that case, the master/servant relationship has what is known as a ‘statutory flavour’.
(c) the other third category affects holders of offices involving public function. Here, the rules of natural justice must be complied with in the dismissal. Jirgbagh v. Union Bank Nigeria Plc (2001) 2 NWLR (pt. 696) P.11; F.C.S.C. v. Laoye (1989) 2 NWLR (pt. 106) 652; Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303.
It has been firmly established that when an employee complains that his employment was wrongfully terminated, he had. the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. Okomu Oil Palm Co. V. Iserhienrhien (2001) 5 NSCQR 802.
Before an employer can dispense with the services of his employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even when the allegation for which the employee is being dismissed involves accusation of crime. Jirgbagh v. UBN Plc (2001) 2 NWLR (pt. 396) 11 at 28 – 29; Yusuf v. Union Bank (Nig.) Ltd. (1996) 6 NWLR (pt. 457) 632.
It is trite that the rules of fair hearing is not a technical doctrine but are of substance. The question is not whether injustice has been done because of lack of hearing but whether a party entitled to be heard before a decision had in fact been given an opportunity of hearing. Thus, once an appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the decision is liable to be set aside. Per Edozie J.C.A (as he then was) Udo v. C.S.N.C. (2001) 14 NWLR (pt. 732) 116 at 151; Kotoye v. C.B.N. (1989) 1 NWLR (pt. 98) 419.
In the instant case the Appellant contended that he was not given a fair hearing before his employment was terminated. However it was not disputed he was issued a query, Exhibit C which contents are reproduced below:-
“PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD INTERNAL MEMO
TO: ALHAJI M. B. AUDU EXHIBIT ‘WC’
FROM: MANAGER (ADMINISTRATION & PERSONNEL)
DATE; SEPTEMBER 20, 2000
SUBJECT: LEAKAGE OF OFFICIAL INFORMATION
It has just come to the attention of Management that on or about February, 2000, you conspired with other persons, to leak official information of the Board to an unauthorized person, Mr. A.S. Jombo, for the purposes of writing petitions against the Board, its Management, and officials of the Ministry of Petroleum Resources.
The official materials you leaked to Mr. A.S. Jombo formed the bulk of the information contained in an unsubstantiated sworn affidavit published in The News Magazine, and used in several petitions to Government.
Also, you co-authored a petition to the Inspector General of Police in which you made false and frivolous allegations against the Executive and Management of the Board. In the petition, you among other things, alleged that:
(i) the Executive secretary influenced the Ministry of Petroleum Resources to set up to investigate the leakage of information in the Board;
(ii) a similar panel was being set up to undertake a ‘phony rationalisation exercise and review of appointments’ with the intention to flush out/dismiss some members of staff, some of who were already queried.
(iii) Official sanction was giving to the bugging of the private telephone lines of some members of staff.
There are adequate provisions in the Civil Service Rules and Establishment Circulars for seeking redress rather than leaking official information for the purposes of writing petitions against your employer and its leadership. Perhaps it is necessary to remind you that.
(a) CRS 04207 prohibits you as a Public Officer from disclosing to any person except in accordance with official routine or with special permission of Government, any articles, document, or information entrusted to you in confidence or which you may obtain in the course of your official duties.
(b) CRS 04208 prohibits you as a Public Officer from abstracting or copying official minutes or other documents except in accordance with official routine or with special permission of your Head of Department.
(g) CRS 04210 prohibits Public Officers on leaving the service from taking public records without written permission, and
(d) The Official Secrets Act of 1912 provides a penalty of up to 14 years imprisonment for any person found guilty of the offence. It is in pursuance of this that Officers handling official information are required to subscribe to Oath of Secrecy.
You are aware that there are several officially laid down procedures for seeking redress. You cold channel your petition to Government through the established channels, but you chose to flout Government regulation. These breaches are unbecoming of a senior officer of your status.
Therefore, Management of the Board can no longer afford to fold its hand and allow a few disgruntled elements to destroy its name and the good work of many other staff. Consequently, you are hereby issued this official query to explain why disciplinary action should not be taken against you for:
(i) Leaking official information to unauthorized persons, especially, Mr. A.S. Jombo for the purpose of producing a sworn affidavit published in media, and subsequently applied in writing unsubstantiated petitions to Government.
(ii) Making false and unsubstantiated allegations against the Executive Secretary and officials of the Ministry of Petroleum Resources in a petition you co-signed, and forwarded directly to the Inspector General of Police.
(iii) Flouting Government’s regulations on approved channels of communication or method of seeking redress in the Service.
Your response must each reach the undersigned before close of work on Friday September 29th, 2000.
(Signed)
Alhaji D.D. Musa:”
The Appellants Reply to the query was admitted as Exhibit ‘D’ and it’s contents are as follows:-

“EXHIBIT ‘D’
P.E.F. (M) B.,
N.N.P.C. Depot,
Ilorin.

4th October, 2000
The Manager,
Administration and Personnel,
P.E.F. (M) B.,
Abuja.

Dear Sir,
RE; LEAKAGE OF OFFICIAL INFORMATION
I write to acknowledge the receipt of your query letter through courier service on the 2nd of October, 2000.
I did not conspire or did anything dose to it with any person to leak or disclose official information on or about February, 2000 to Mr. A.S. Jombo or any other person at all for the purpose of writing petitions/sworn Affidavit against the board, its management or officials of the Ministry of Petroleum Resources or any other person or authority.
I also did not co-sign a petition written by me or any other person containing false or frivolous allegations against the executive, the Management or any other authority in the board, I only made a complaint to the police whose responsibility it is to protect life and properly on what I conceive to be a breach of my fundamental right to private and family life as entrenched under Section 37 of the 1999 Constitution and Section 4 of the police Act Cap. 359 LFN 1990.
My complaint to the police however is prior to the Head of service Circular on internal disputes even though I am not conceding to the allegation.
You may also recall sir, that I have appeared before an investigation panel duly constituted by the Ministry of Petroleum resources sometimes in March 2000 on Leakages and Misinformation arising from the said sworn Affidavit by A.S. Jombo and published in The News Magazine on the same subject matter in paragraphs one and two of your query letter.
In conclusion, I did not leak any official information to Mr. S.A. Jombo or to any other person. I also did not sign any false and unsubstantiated allegations in a petition to anybody. I did not flout any Government regulation on approved channel of communication or method of seeking redress”.
The letter of Termination, Exhibit ‘E’ is quoted below:-
“PEF/S/77/11/134
Date 16/2/2001

Alh. M.B. Audu,
Petroleum Equalization Fund (Mgt.) Board,
Abuja.
TERMINATION OF APPOINTMENT
I am directed to draw your attention for the decision of the Senior Staff Committee of the Ministry of Petroleum Resources and to inform you that your appointment with the Board has been terminated in the interest of the Public service of the Federation with effect from 20th October, 2000.
This is sequel to the decision reached by the Committed in its meeting of 20th December, 2000 on the pending disciplinary ease against you. You are required to submit all Government properties,, documents and the staff identity card in your possession to the Manager (Admin. & Personnel).
Attached, is a copy of the letter from the Ministry of Petroleum Resources Communicating the decision to the Board for implementation.
Yours faithfully,
For: PEF (M) Board
(Signed)
Y.S.USMAN
(Manager (Legal)”
The Appellant strenuously anchored his arguments on the claim that he was not given a fair hearing and so becomes necessary to explore in-depth that issue of whether or not the principles of fair hearing were applied.
Fair hearing or fair trial is one of the twin pillars of the rule of natural justice and is usually expressed in the latin maxim audi alteram partem, that is a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him so that he or someone acting on his behalf, may make such representations if any as he sees fit. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case: Yakubu v. Governor of Kogi State (1995) 8 NWLR (pt. 414) 386 at 397; Mohammed v. Kano N.A. (1968) 1 All NLR 424 at 426; Funduk Eng. Ltd v. McArthur (1995) 4 NWLR (pt. 392) 640; Unongo v. Aku (1983) 2 SCNLR 332; Ariori v. Elewo (1983) 1 SC 1 at 59; Atano v. Attorney General Bendel State (1988) 2 NWLR (pt. 75) 210 at 218 The term ‘fair hearing’ has been judicially interpreted to involve situations where whether having regard to all the circumstances of a case, hearing may be said to have been conducted that the tribunal was fair to all the parties to the proceedings. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter. Military Governor of Imo state (1997) 2 NWLR (pt. 490) 675; Ariori v. Elewo (1983) 1 SCNLR 1; Kuusu v. Udom (1990) 1 NWLR (pt. 127) 421; Okafor v. Attorney General Anambra State (1991) 6 NWLR (pt. 200) 659 at 678.
In the case in hand the disciplinary committee which report was the basis upon which the termination was made, the Appellant was aware of what he was there for and made his representation after which the Report below recommending his termination of employment was made. I quote fully:-
MINISTRY OF PETROLEUM RESOURCES
PERSONNEL MANAGEMENT
11th February, 2001
The Executive Secretary,
Petroleum Equalisation Fund (M) Board,
AP Plaza,
Wuse II,
Abuja.
IMPLEMENTATION OF THE DECISION OF THE SENIOR STAFF COMMITTEE, MINISTRY OF PETROLEUM RESOURCES
I am directed to draw your attention to some decisions of the Senior Staff committee of this Ministry taken in its meeting of 20th December, 2000, especially those affecting your organization.
2. Disciplinary case – Alh. Bala Mohammed Audu
The Committee decided that the appointment of Alh. Bala Mohammed Audu be terminated in the interest of public service. The termination of his appointment should take effect from the date he was suspended from duty. Find attached the minutes of the meeting where the decision was taken.
3. Please implement accordingly.”
The learned trial Judge had considered the documents available to him and the oral evidence adduced and came to the following conclusion:
All through the dealing of the 1st defendant with the plaintiff on discipline it is the provisions of the Civil Service/Public Service Rules that were deployed. In fact the Senior Staff Committee of the Ministry of Petroleum Resources Exhibit ‘D4’ which is captured Administrative Guidelines Regulating the Relationship between Parastatals/Government owned Companies and the Government there is paragraph 15 that deals with Labour Relations which reads:
Labour Relations
Subject to the limitation imposed in these Guidelines and the was establishing the Parastatals, the Board of the Parastatals shall be competent to conduct negotiations and consultations with the Staff Unions on staff welfare and conditions of service of their members.
These Guidelines appear to set some collaborative steps amongst Parastatals and their supervisory Ministries. The issue to address is whether the 1- Defendant has adopted the Public service Rules as the condition of service for the 1st Defendant there is no direct or express record to indicate that the Public Service Rules should govern the employment but the 1st defendant by relying on the Rules had intended that It shall govern the employment of the Plaintiff. I hold therefore that, those parts of the Public service Rules utilized are by implication applicable to this employment. It is in this respect that the questions framed are to be answered.
The first question raised deals with whether it was competent for the Senior Staff Disciplinary committee rather than a Court of Law to hear and determine allegation of crime. The allegation against the plaintiff which is leaking of official secret is said to be a crime. The issue clearly put is simple. It is only the Court established by the law that can hear and determine criminal allegations. But in a contract of employment situation where an allegation is made against a staff and the allegation bothers on crime, the employer has the option particularly in an employment of this nature which is not a statutory employment to either prosecute the staff in a Court deal with the staff administratively. There is no law that requires an employer in this situation to go to court and prosecute a staff for misconduct before administrative disciplinary measures can be taken.
In the instant case, the employer chose the option of administrative discipline and followed its disciplinary rules, to deal with the plaintiff. This I believe is lawful. The only germane issue to consider there with is whether the plaintiff was accorded fully his right to fair hearing.
The facts in this case show that the plaintiff was queried and was given the chance to reply to query. He was allowed to face the disciplinary committee and participate in the proceedings. It invariably follows therefore that the ingredient of fair hearing abound in the dealing with the plaintiff. I am not in any doubt that the plaintiff in the circumstance was given fair hearing in this matter before his employment was determined.
From the foregoing therefore, the process and procedure adopted for the termination of the plaintiff’s employment was proper legitimate and lawful. The termination therefore is in order. You cannot force a willing servant on an unwilling master. I hold therefore that this suit lacks merit and it is hereby dismissed.
(Signed)
S.J. ADAH
JUDGE.
17/11/2006. Certified True Copy
Federal High Court, Abuja”.
The summation of the learned trial judge is indeed the correct assessment of what was at stake, and that is that the employment of the Appellant was properly determined within the powers of his employers being in this instance the respondent and also the Rules of Natural Justice, specifically fair hearing on the allegations against him were complied with and the circumstances justified the respondent utilizing the administrative policies of its establishment in keeping with the necessary Civil service Rules to terminate that employment. The attractive argument of statutory flavour did not avail the Appellant. I place reliance on Ide Unilorin (1994) 3 NWLR (pt. 330) 81; Fakuade v. O.A.U.T.H, C.M.B. (1993) 5 NWLR (pt. 291) 47; Jirgbagh v. UBN Plc (2001) 2 NWLR (pt. 396) 11 at 28.
ISSUE NO: 2:
Whether the termination of the Appellant’s appointment will be wrongful in the light of failure to prosecute the plaintiff in the Court of law on some of the allegations against him that had criminal flavour.
Learned counsel for the Appellant, Mr. Asoluka stated that where there is an allegation of criminal wrongs against a person, the jurisdiction to determine the allegation is vested in the courts and the exercise of such jurisdiction cannot be usurped by any administrative tribunal, panel or committee. That Section 36(1) and (4) of the Constitution of the federal Republic of Nigeria 1999, every proceedings leading to disciplinary sanctions against persons accused of criminal offences and disputing the accusation must be predicated on a formal trial of such person of the land established for the purpose. He cited Dangtoe v. C.S.C. Plateau State ((2001) 9 NWLR (pt 717) 132 at 155; Denloye v. Medical and Dental Practitioners Disciplinary committee (1968) 1 All NLR 306; Garba v. University of Maiduguri (1968) 1 NWLR (pt. 18) 550.
Mr. Asoluka said the Appellant having been accused of leaking official information which act amounts to a criminal offence by the provisions of the Penal code Law and the Official Secrets Act Cap. 335 Laws of the federal Republic of Nigeria, the Appellant ought to have been tried by the Ordinary Court of Law in accordance with the provisions of section 36 of the CFRN 1999. He referred to Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt. 106) 652; N.E.P.A. v. Adeyemi (2007) 3 NWLR (pt. 1021) 315 at 332 0 333; Jubril v. Military Administrator, Kwara State (2007) 3 NWLR (pt. 1021 357 at 376 – 377).
For the Appellant it was further submitted that the termination of the employment of the Appellant by the 1st Respondent based on the Report of the Senior staff Disciplinary Committee which is not an ordinary court in law, in an allegation of the crime of leakage of official secrets contrary to the Penal Code Law and Official Secrets Act, is wrong and contrary to law. He cited Unilorin v. Oluwadare (2003) 3 NWLR (pt. 808) 557 at 582; Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (pt. 490) 675; Section 7 (1) of the said Act; Section 7 (3) which provides for the Appellant to be prosecuted with the consent of the Federal Attorney General or State which was not obtained herein.
In response, learned counsel for the Respondent said the basis for the termination of the Appellant’s appointment were the allegation raised in the query dated 26th September, 2000, Exhibit 5. That the issue of leaking official secret as one of the allegation is contemplated by the 1st Respondent’s adopted condition of service as ‘Disloyalty to the corporation’ which constitutes a ground for Termination of Appointment. He referred to Exhibit ‘D’.
She stated that the allegations when jointly taken do not import any criminality to the matter at hand and each of them separately taken constitutes a distinct ground for the termination of the appointment of an employee. That paragraph 5 posits that the Appellant breached and that the laid down channels or procedures for petition by an aggrieved staff which the Appellant failed to utilise and flouted. That the Appellant in his reply to the above cited query did not deny petitioning the Inspector General of Police against the prescribed channel of complaint for employees of 1st Respondent. That appellant under cross-examination had conceded to petitioning the Inspector General because of the threat of his person.
Mrs. Amenger said that the courts have held in line of decided cases that an employee ought not to be necessarily prosecuted first in view of any criminal element in the allegation against him before being summarily punished. He cited Yusuf v. UBN (Nig.) Ltd. (1996) 6 NWLR (pt. 457) 632 Uniagric v. Jack (2001) 3 WRN 83; Jirgbagh v. Union Bank of Nig. Plc (2002) 17 WRN 18 at 23.
Learned counsel for the Respondent went on to contend that sections 136 and 137 of the Evidence Act placed the onus of proof on the plaintiff who has made the assertion. He cited Zaki v. Magayaki (2002) 15 WRN 154 at 158; Nimanteks Associates Ltd. v. Marco Construction Co. Ltd. (1991) 2 NWLR (pt. 174) 441 at 430.
Once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and he would be sure of getting a fair hearing. Thus, if an act of misconduct involves crimes against the State, it is no longer a matter of internal discipline but a matter for a court or tribunal vested with judicial powers to try such offences. It is only after conviction by a proper court for these offences that appropriate disciplinary measures can be meted out against the culprit.
Unilorin v. Oluwadare (2003) 3 NWLR (pt. 80S) 557 (CA), Sofelan v. Akinyemi (1980) 5 – 7 SC 1; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550.
Several cases need be referred to for guidance. See Dangtoe v. Civil Service Commission of Plateau State (2001) 9 NWLR (pt 717) 132 (Supreme Court) where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. An administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. F.C.S.C v. Laoye (1989) 2 NWLR (pt. 106) 652; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550; UNTHMB v. Nnoli (1994) 8 NWLR (pt. 363) 376.
Once an administrative body acts judicially, in the sense that it is to determine the civil rights and obligation of the person or to find him guilty or liable for a fault, the principles of fair hearing binding on judicial bodies are automatically imparted, though the manner of hearing will still depend on the particular circumstances of the case. This of course includes the observance of the rule of natural justice. Jibril v. Military Administrator Kwara State (2007) 3 NWLR (pt. 1021) 315; Adeniji v. Governing Council of Yaba Tech. (1993) 6 NWLR (pt. 300) 426; Baba v. NX.A.T.C. (1S91) 5 NWLR (pt. 192) 388; Akinna v. V.C. Unilorin (2004) 11 NWLR (pt. 885) 616.

When anyone is accused of a criminal offence he should in his own interest and in the interest of truth and justice be tried by the ordinary courts of the land. No hush hush inquiry can take the place of open trial. The right to fair hearing comprehends and includes the right to be heard in open court in defence of one’s character and good name, when accused of misconduct amounting to a criminal offence. Only a court or a judicial tribunal is competent to hear and determine criminal charges brought against an employee. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of criminal charges against him would be required.
He has in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. N.E.P.A. v. Adeyemi (2007) 3 NWLR (pt. 1021) 315; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550; Federal Civil service Commission v. Laoye (1989) 2 NWLR (pt. 106) 652.
The prosecution of an employee before the law court is not a sine qua non for the exercise of the power of summary dismissal for gross misconduct in allegation of crime. It would all depend on the circumstances of each case. In keeping with this principle, and in the light of the circumstances of this matter in hand, the Respondent was within the law and practice to utilise the administrative panel, it did not need to resort to the law court to resolve its dissatisfaction with their employee. Nor was anything needed to be done to effect the dismissal having guaranteed the Appellant the fair hearing he was entitled to. See Jibril v. Military Administrator Kwara State (2007) 3 NWLR (pt. 1021) 357 at 376; Yusuf v. Union Bank of Nigeria Plc (1996) 6 NWLR (pt. 457) 632.
In the light of the above, I resolve this issue in favour of the Respondent and conclude by saying the learned trial judge was right in dismissing the claims of the Appellant as he was unable to establish the wrongful or unlawful termination of his employment.
This appeal lacks merit and I dismiss it as I affirm the judgment of the Court below.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the Judgment of My Lord, MARY U. PETER-ODILI, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
I too dismiss the appeal because the Applicant was unable to establish wrongful or unlawful termination of his employment.

ABDU ABOKI, J.C.A.: I agree.

Appearances

J. O. Asoluka
L. M. Amenger (Mrs.);
M. T. KachinaFor Appellant

AND

2nd Respondent absent and not represented even though served on 1/2/2010.For Respondent