C.B. N. v. OHIKU (2020)

C.B. N. v. OHIKU

(2020)LCN/14683(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, October 06, 2020

CA/A/1014/2019

RATIO

APPEAL: WHETHER A GROUND OF APPEAL ACCUSING A TRIAL COURT OF RAISING ISSUES SUO MOTU AND DECIDING IT BEHIND THE PARTIES IS ACADEMIC IS ACADEMIC

A ground of appeal which accuses a trial Court of raising issue suo motu and deciding it behind the parties is not moot or academic. It is an allegation of breach of Appellant’s right to fair hearing. PER IGE, J.C.A.

PLEADINGS: BINDINGNESS OF PLEADINGS

There is no doubt that a Court is severely bound by the case presented to it as postulated in their pleadings. Parties are bound by their pleadings just as the Court is bound to make its findings only within the confines of the parties case as pleaded. It does not lie in the province of the Court or its jurisdiction to make case for the parties. PER IGE, J.C.A.

COURT: EXTENT OF THE POWER OF THE COURT TO RAISING ISSUES SUO MOTU

The Court cannot raise an issue suo motu and decide it ex parte without affording the parties the opportunity to address the Court on it where issue raised suo motu will decide or resolve the case against one of the parties. See:
1. AFRICAN CONTINENTAL SEAWAYS LTD VS NDRGW LTD (1977) 5 SC 235 AT 249 – 250 per IRIKEFE, JSC;

2.LEADERS & CO LTD V. BAMAIYI (2010) 18 NWLR (PART 1225) 329 AT 338 D -G per GALADIMA, JSC
“The proper role of a Court in our accusatorial model of procedure is to pronounce on and determine issue in controversy submitted to it. It is the parties who themselves play the primary role in the process, at the trial stage, by the issues raised on their pleadings: where the case is tried on the pleadings, and at the appellate stage, by the issues arising from the grounds of appeal raised by the appellant. It is not for the Judge to initiate controversy. His role in the accusatorial model is first and foremost that of an umpire and it is in that role that he offers assistance by directing proper focus to what the Parties themselves may have articulated without sufficient clarity as the question in controversy. There are the exceptional cases where it is permissible for the Court to take an initiative to raise an issue on its own motion. Some of such instances are when the issue relates to its own jurisdiction; or, when both parties have ignored a statute which may have decisive bearing on the case; or, when on the face of the record serious question of the fairness of the proceedings is evident.
The power of the Court to make consequential orders as the Justice of a case demands on its own motion though to be exercised with circumspection, also exists. The cases cited by learned counsel for the appellant such as Hanson v. Wearmouth Co. Ltd. (1939) 3 All ER 47; Rutherford v. Richardson (1922) All ER (Rep) 13; Aboud v. Regional Tax Board (1966) NMLR 1 DO; Re Whiston (1924) 1 CH 122 and Williams v. Akintunde (1995) 3 NWLR (pt. 381) 101 fall into one or the other of these categories. Notwithstanding the exceptions, the general rule is that when an issue is not placed before the Court, it had no business whatever to deal with it: Ebba v. Ogodo & Anor (1984) 1 SCNLR 372; (1984) 15 NSCC 255, 266 per Eso, JSC. Is there anything to take this case out of that general rule?” (underlined mine)
3. COMPTOIR COMMERCIAL & IND S. P. R. LTD V OGUN STATE WATER CORPORATION & ANOR (2002) 9 NWLR (PT. 773) 629 AT 651 B-G per AYOOLA, JSC. PER IGE, J.C.A.

APPEAL: DUTY OF AN APPELLANT WHO WANTS THE APPELLATE COURT TO SET ASIDE THE FINDINGS AND CONCLUSION OF A LOWER COURT

The law is trite an Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts and that the said Court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must be proved that the learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the part of the Trial Court or Tribunal actually occasioned a miscarriage of justice. See;
1. CHIEF ALEX OLUSOLA OKE & ANOR. VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 397 G – H.;
2. CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503A, per OGUNBIYII JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses. In the evaluation of evidence therefore, the central focus expected of a Trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire case thus arriving at the Just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291. PER IGE, J.C.A.
EMPLOYMENT: EMPLOYMENT GOVERNED BY STATUTE OR REGULATION

The law is settled that unless an employee’s employment is governed by statute or regulation that can be properly called a statutory or subsidiary legislation providing for procedure for the removal or dismissal of an employee such an appointment cannot be said to be an appointment with statutory flavour.
1. ENGR. E. O. AWALA VS NITEL PLC (2019) 10 SCM 19 AT 40 F – I TO 41 A – E per OKORO, JSC
2.COMPTROLLER-GENERAL OF CUSTOMS & ORS VS COMPTROLLER ABDULLAHI GUSAU (2017) 18 NWLR (PART 1598) 35 AT 388 E-H per M D. MOHAMMED, JSC who said:-
“The law on the point must be restated thus:- where a statute clearly provided for the employment and discipline including an employee’s retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E. P. Iderima v. Rivers State Civil Service Commission (2005) LPELR – 1420 (SC), (2005) 16 NWLR (Pt. 951) 378.

In Chief Tamunoemi Idoniboye-Obu v. Nigerian National Petroleum Corporation (2003) LPELR- 1426 (SC), (2003) 2 NWLR (Pt. 805) 589 this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the rules must be established to be:-
(1) regarded as mandatory.
(2) directly applicable to him or persons of his cadre.
(3) intended for the protection of the employment.
(4) breached in the course of determining the employment.”
And at page 390 B – F KEKERE-EKUN, JSC had this to say:
“There are three categories of contracts of employment. They are:
a) Purely master and servant relationship.
b) Servants who hold their office at the pleasure of the employer
c) Employments with statutory favour.
See: Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1
An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame v. W.A E.C. (1992) 9 NWLR (Pt.265) 303; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory favour.
The law is settled that the only way to terminate a contract of service with statutory favour is to adhere strictly to the procedure laid down in the statute. See: Bamgboye v. University of Ilorin (1999) 10 NWLR CPt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (supra).
The recent decision of the Supreme Court clearly provides and reiterates the criteria that will make an employee’s appointment statutory or with elements of statutory favour and conditions which must be met before such employee can be removed from office. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS VS MISS YETUNDE ZAINAB TOLANI (2019) 7 (PT. 2) SCM 88 AT 1034 TO 104 A – B per PETER ODILI, JSC who said:-
“On the question whether or not the employment in issue enjoys statutory flavour I need to state very humbly too, that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:-
(i) The employer must be a body set up by the constitution or statute and;

(ii) The statute or regulations made pursuant to the constitution -or principal statute or law must make provision regulating the employment of the staff of the category of the employee concerned especially in matter of discipline.”
At pages 105 D-H – 106A his Lordship also said:-
“Clearly the relationship between the appellants and the respondent; a Constitutional body, is neither one of master and servant relationship under the common law nor employment where office is held at pleasure. Rather, the relationship between the appellants and the respondent falls squarely on employment protected by statute or with statutory favour. See the case of E. P. Iderima v Rivers State Civil Service Commission (2005) 7 SC (Pt.II) 135 at 151, (2005) 10-11 SCM, 107. In the above excerpt the trial Court appears to have lost sight of the fact that in the law of master and servant, employment falls into three categories viz:-
(i) A pure master and servant relationship under common law.
(ii) Employment where officer (sic) is held at pleasure.
(iii) Employment protected by statute. See Ridge v Baldwin & Ors (1964) AC 40.” PER IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

AHERUVOH DAVID OHIKU RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment); This appeal is against the judgment of the National Industrial Court, Abuja Division delivered on the I St day of March, 2019 by Honourable Justice N. AGBAKOBA where he held that the dismissal of the claimant is unlawful and as such null and void.

By his Amended statement of facts dated 3rd November, 2017, the Claimant/Respondent claimed against the Defendant/Appellant the following reliefs:
1. A DECLARATION that the Defendant herein is bound by the extant Public Service Rules and its internal Term of Employment (Human Resources Policy and Procedures Manual)
2. A DECLARATION that the claimant’s dismissal by the Defendant, vide a letter dated 19th January, 2016 is not in compliance with the Defendant’s Terms of Employment and same is null and void.
3. AN ORDER voiding and invalidating the claimant’s purported dismissal from the employment of the Defendant.
4. AN ORDER directing the Defendant to forthwith reinstate the claimant to service.
5. AN ORDER directing the Defendant to compute and pay to the claimant all salaries, medical expenditures, allowance, and all other

entitlement accruable to the claimant from the date of the purported dismissal up to the date of reinstatement.
ALTERNATIVELY
1. AN ORDER directing the Defendant to pay to the Claimant damages in the sum of N250,000 000 (Two Hundred and Fifty Million Naira) only for unlawful dismissal.
2. AN ORDER directing the Defendant to compute and pay to the Claimant all entitlements including the severance package accruable to the Claimant.
3. AN ORDER directing the Defendant to pay 10% interest on the judgment sum from the date of Judgment until the final liquidation of same
4. SUCH FURTHER ORDER(s) as the Court may deem fit to make in the circumstances.

The matter proceeded to trial. At the end of the trial the Learned trial Judge gave a considered Judgment on 1st of March, 2019. The trial Court concluded as follows:
“The law is that the procedure for discipline in an employment with statutory favour must be complied with; otherwise, the dismissal ensuing thereof will be null and void. LONGE V. FBN PLC (2010) LPELR-1793(SC): (2010] 6 NWLR (PT. 1189) 1 SC for instance held that in the event of termination of Employment with statutory

favour, strict adherence must be had to the statute creating the employment for statutory provisions cannot be waived. And by OLORUNTOBA-OJU & ORS v. ABDUL-RAHEEM & ORS (2009) LPELR-2596 (SC), (2019) 13 NWLR (PT.1157) 83 SC in the matter of discipline of an employee whose employment has statutory favour the procedure laid down by such statute must be fully complied with: if not any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. That is the employee would be restored to the position he would have been if the disciplinary processes did not take place at all without any loss deprivation.
From the forgoing, I am accordingly satisfied that the defendants did not strictly adhere to the provisions of Article 6.4.2.2, of Human Resource Policies and Procedures Manual (HRPPM) before dismissing the Claimant from their service. His dismissal is accordingly unlawful), and as such null and void. In making this finding by BCC PLC V. AGER (2010) 9 NWLR (PT. 1199) 292 SC, there is no dismissal of the claimant as what the defendants did is a nullity before the law. Accordingly reliefs (2) to (5) as

claimed succeed and so are hereby granted having resolved the main claims this Court cannot consider the alternative claims.
For the avoidance of doubt, and for the reasons given the claimants case succeeds and only reliefs (1), (2), (3), (4) and (5) as claimed succeed and are hereby granted. I so order.
Judgment is entered accordingly, I make no order as to cost.”

The Appellant was aggrieved by the Judgment and has by his Notice of Appeal dated and filed on 31st day of May, 2019 appealed to this Court on four grounds which without their particulars are as follows:
GROUND ONE
The learned trial Judge erred in law, when he suo motu raised and determined an issue which was not submitted to the Court by any of the parties, without taking inputs or contributions from Counsel, thereby breaching the Appellant’s right to a fair hearing; and thus occasioned a miscarriage of justice, particularly in his finding at Page 17 of the Judgment, to wit:
“The Claimant answered all the queries issued by the Defendant, he was made to face the Defendant’s CDC which re-investigated and allegedly found the Claimant guilty of Gross Misconduct, the CDC

after its investigation issued a report which recommended the Claimant’s dismissal. The procedure adopted by the defendant I find evolved outside the provisions of Article 6.4.2.2. of Human Resource Policies and Procedures Manual (HRPPM), having initiated the process of the query of 31st August which culminated in a warning, the condition of service does not provide for a reinvestigation.”
GROUND TWO
The learned trial Judge erred in law, when he avoided issues submitted to the Court for determination, suo motu raised and determined a completely different issue from the Respondent’s claim, and thereby compromised the Appellant’s right to a fair hearing; particularly when at Page 17 of the Judgment, he held thus:
“The Human Resource Policies and Procedures Manual (HRPPM), notably Article 6.4.2.2 provides for the head of Department to review the report of a committee and forward both its review and the report to the Deputy Governor. I find that in neither the procedure the (sic) commenced with a quuery of 31st August 2015 nor the re-investigation process which in itself is improper and at variance with the condition of service.’’<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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GROUND THREE
The learned trial Judge erred in law, when he wrongly appraised the Appellant’s case and evidence led before him, in coming to an erroneous conclusion that the procedure, adopted by the Appellant evolved outside the provision of Article 6.4.2.2 of the Human Resource Policies and Procedures Manual; particularly when at Page 17 of the Judgment he held thus:
‘’The procedure adopted by the defendant, I find evolved outside the provisions Article 6.4.2.2. of Human Resource Policies and Procedures Manual (HRPPM), having initiated the process of the query of 31st August which culminated in a warning the condition of service does not provide for a re-investigation.
GROUND FOUR
The learned trial Judge erred in law, when he admitted himself to presumptions and speculations, and wrongly appraised the evidence led before him by the Appellant especially when he adjudged the case on an erroneous presumption that a re-investigation exercise was conducted by the Central Disciplinary Committee when it sat on the Respondent’s case; he thereby occasioned a miscarriage of justice.

It is relevant to point out that the

Respondent filed a Notice of Preliminary objection pursuant to Order 7 Rule 6 of the Court of Appeal Rules 2016. He prayed for the following reliefs:
1. AN ORDER dismissing this instant APPEAL NO: CA/A/1014/2019 BETWEEN CENTRAL BANK OF NIGERIA VS. AHERUVOH DAVID OHIKU for gross incompetence.
2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance of this suit.
ALTERNATIVELY
3. AN ORDER striking out Grounds 2, 3 and 4 of the Notice and Ground of Appeal and Issues 1, 2 and 3 distilled therefrom.

The objection was anchored on the following grounds:
1. The National Industrial Court of Nigeria, Abuja presided over by the Honourable Justice C. N. Agbakob, delivered its judgment in SUIT NO: NICN/ABJ/85/2016, BETWEEN AHERUVOH DAVID OHIKU V. CENTRAL BANK OF NIGERIA on the 1st day of March, 2019 granting the Respondent’s principal claims before the Court
2. The Appellant/Respondent was dissatisfied with the said judgment and filed a Notice and Ground of Appeal at the Registry of the Trial Court on the 31st day of May, 2019.
3. The Appellant/Respondent filed her Appellant’s Brief

of Argument at the Registry of this Court on the 21st day of January, 2020
4. The Appellant/Respondent is bound by the Rules of this Honourable Court and other extant practice directions.
5. The Appellant/Respondent has failed to appeal against fundamental pronouncements of the trial Court thus making this appeal moot, academic and of no utilitarian value.
6. No leave of either this Court or the trial Court was obtained before the instant Notice and Grounds of Appeal was filed.
7. All the ground contained in the Notice and Grounds of Appeal are identical, duplicitous, proliferated and grossly incompetent and thus liable to be struck out just as the issues for determination distilled therefrom.
8. This Honourable Court lacks jurisdiction to entertain the instant appeal.

Learned Counsel to the Respondent distilled three issues from the Notice of Preliminary Objection viz:
(i) Whether this Appeal is not moot or Academic in view of the non challenge to Fundamental Pronouncement of the trial Court.
(ii) Whether the Non-obtainment of the Leave of Court does not invalidate the Appellant’s Notice and Ground of Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(iii) Whether Grounds 1, 2, 3 and 4 of the Notice and Grounds of Appeal are identical, duplicitous and proliferated and if answered in the affirmative, whether the Appellant’s issues 1, 2 and 3 distilled therefrom are not liable to be struck out.

The issues will be considered anon.
ISSUE ONE
“Whether this Appeal is not moot or academic in view of the non challenge to Fundamental Pronouncement of the trial Court.”

Learned Counsel submits that the position of the law is that any finding of the Court which is not appealed against is deemed accepted and must not be disturbed by the Appellate Court. He relied on the following cases:
1. MTN V. CORPORATE COMM. INV. LIMITED (2019) LPELR – 47042 (SC)
2. POROYE V. MAKARFI (2017) LPELR 42738 (SC)
3. CCCTC LIMITED V. EKPO (2008) LPELR 825 (SC)
4. COMM. OF FINANCE IMO STATE V. KOJO MOTORS LIMITED (2018) LPELR – 45075 (CA).

That the Appellant has not appealed against the pronouncement and finding of the trial Court and so must be deemed to have accepted same and thus cannot disturb such finding more so he must not be seen canvassing argument against the said finding. He urged

this Court to dismiss this appeal.

ISSUE 2 under Preliminary Objection
“Whether the Non-obtainment of the Leave of Court does not invalidate the Appellant’s Notice and Ground of Appeal.

Learned Counsel to the Respondent submits that the Appellant’s four grounds of appeal are such that cannot be filed as of right but require the leave of this Court or of the trial Court which was not obtained. He relied on:
1. Section 243(2)(3)(4) and Section 254C of the Constitution of the Federal Republic of Nigeria (1999) as amended.
2. UNIBEN & ORS V. OJO (2018) LPELR – 44324 (CA).
3. LAGOS SHERATON & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) 14 NWLR (PART 1426).
4. SKYE BANK V. IWU (2017) LPELR 42595 (SC).

That grounds 3 and 4 do not relate to any violations of fundamental rights or any criminal violations and so are liable to be struck out and so are issues 2 and 3 distilled therefrom. That the law is trite that no competent issue for determination can be validly distilled from incompetent grounds of appeal. He cited the case of UBA PLC V. ACB (NIG) LIMITED (2005) 12 NWLR (PART 939) 232.

That regards grounds 1 and 2 of the Notice and Grounds of Appeal which mention fair hearing, the law is clear that the mere fact that an Appellant mentioned fair hearing is not enough to hoodwink the Court as fair hearing is not a magic wand to subvert the provisions of Section 243 (2) and (3) of the Constitution referred to above. That the Appellant must state where and how the breach of fair hearing occurred. That this is important where the suit was prosecuted at the trial Court to the satisfaction of the parties and where grievances were well ventilated. He cited the case of UNIBEN & ORS V. OJO (SUPRA)

That the submissions of the Appellant that there was no issue joined on the validity or otherwise of the appellants alleged dismissal of the Respondent in Ground 1 and the finding of the trial Court on non adherence to procedure was not submitted to the Court, are with respect to the Appellant untrue.

He urged this Court to hold that the grounds and their particulars are not in respect of breach of any right to fair hearing and to dismiss same.

ISSUE THREE on Preliminary Objection
“Whether Grounds 1, 2. 3 and 4 of the Notice and

Grounds of Appeal are identical, duplicitous and proliferated and if answered in the affirmative, whether the Appellant’s issues 1, 2 and 3 distilled therefrom are not liable to be struck out.”

That it is trite law that parties must not proliferate Grounds and issues in an appeal. That the Appellant has formulated her entire grounds of appeal from only one finding of the trial Court thus leading to duplicity of the grounds. That this is an abuse of the process of Court. He urged this Court to dismiss all the grounds of appeal and the issues formulated therefrom.

In response to the argument of the Respondent on the Notice of Preliminary Objection under issue 1, the Learned Counsel to the Appellant opined that a perusal of the judgment paragraphs 79 and 80 thereof revolved around the findings that there was non compliance with Article 6.4.2.2. of the Human Resources Policies and Procedures Manual (HRPPM) of the Appellant before Respondent was dismissed. That the argument of the Respondent ought to be rejected.

On whether leave was obtained as submitted under issue two by the Appellant’s Learned Counsel, the Learned Counsel to the Appellant reminded

the Court that by its application filed on 21/1/2020, the Appellant duly sought for leave of this Court for the grounds of the appeal especially grounds 3 and 4 thereof. That the Respondent did not file any Counter Affidavit to challenge or oppose the application. That when the application came up on 4/3/2020 Moses Awuru Esq. did not oppose the grant of the application. He relied on the Enrolled Order of this Court made on 4/3/2020 attached to the Counter Affidavit as Exhibit “B”.

On issue 3 as to whether grounds 1, 2, 3 and 4 of the Notice and Ground of Appeal are identical or a duplication liable to be struck out, the Learned Counsel to the Appellant stated that no case law was cited to support the Respondent’s position. He urged the Court to dismiss the Notice of Preliminary Objection as lacking in merit.

RESOLUTION OF PRELIMINARY OBJECTION
The Kernel of the Respondent’s objection is that the Appellant’s grounds of appeal failed to attack the fundamental pronouncements of the trial Court thus making this appeal moot, academic and of no utilitarian value and that the grounds are identical.
I have read the four grounds of

appeal. Ground one attacked the finding of the learned trial Judge on the ground that he raised an issue upon which the parties did not join issues. The portion of the judgment complained about is quoted from page 17 of the judgment.
Ground 2 which is also a complaint on issue raised suo motu attacked area of the Judgment contained on the same page 17 of the judgment. The portion of the judgment quoted is quite different from the area covered under ground one.
I have perused ground three of the Notice and grounds of appeal filed and it is evident from it that the ground though inelegantly drafted complains about improper evaluation of evidence led by the Appellant.
Ground four of the appeal is a complaint that the learned trial Judge made a case for the Respondent outside his pleaded case.
A ground of appeal which accuses a trial Court of raising issue suo motu and deciding it behind the parties is not moot or academic. It is an allegation of breach of Appellant’s right to fair hearing.

The Respondent also accused the Appellant of failure to obtain leave of Court to appeal on the four ground of appeal. I think the Respondent is just feigning

ignorance of not knowing that this Court granted leave to the Appellant on 4th day of March, 2020 on application of the Appellant’s learned Counsel filed on 21/12020, which sought leave to appeal.

The same Moses AWURU Esq. who settled Respondent’s Brief of Argument appeared for the Respondent on the said 4/3/2020 leading J.R. Aleke Esq. I think it is preposterous and an abuse of Court process for Learned Counsel to the Respondent to now raise the same issue having not opposed the application for leave on 4/3/2020 and when he did not appeal the order made granting leave to the Appellant to appeal the judgment of the lower Court.

The appeal is competent and the grounds of appeal contained in the Notice of Appeal of the Appellant are competent.
The Notice of Preliminary Objection was brought in bad faith and it is hereby dismissed.

NOW TO THE MERIT OF THE APPEAL
The Appellant Brief of Argument dated the 21st day of January, 2020 was filed on the same date while the Respondent’s Brief of Argument dated 11th day of May, 2020 was filed on 13th day of May, 2020. It was deemed properly filed on 3rd day of June, 2020. On 7th day of July, 2020,

the Appellant filed a reply to the Respondent’s Brief. It is dated same date and was deemed filed on 8th day of July, 2020.

The appeal was heard on 8th July, 2020 when the Learned Counsel to the parties adopted their respective Briefs of Argument. Three issues for determination were raised by the Appellant’s Learned Counsel, ADEOLA ADEDIPE, ESQ who settled the Brief of Argument. They are as follows:
(i) Whether the learned trial Judge was right in law, when he avoided the issues submitted to him for determination, suo motu raised and determined the issue of re-investigation of the Respondent, which was not submitted to the Court by any of the parties, without taking inputs or contributions from Counsel. Distilled from grounds 1 and 2 of the Notice of Appeal.
(ii) Whether the learned trial Judge was right in law, when premised on a wrong appraisal of the Appellant’s case and evidence led before him, he came to the conclusion that the procedure adopted by the Appellant evolved outside the provision of Article 6.4.2.2 of the Human Resource Policies and Procedures Manual. Distilled from ground 3 of the Notice of Appeal.
(iii) Whether the

learned trial Judge was right in law, when based on presumptions, speculations, and wrong appraisal of evidence led before him by the Appellant, he adjudged the case on a presumption that a re-investigation exercise was conducted by the Central Disciplinary Committee when it sat on the Respondent’s case. Distilled from ground 4 of the Notice of Appeal.

The Learned Counsel to the 1st and 2nd Respondent ADEBAYO O. ADELODUN, SAN also nominated three issues for determination as follows:
(i) Whether the finding of the learned trial Judge that the Appellant’s Central Disciplinary Committee (C.D.C.) re-investigated the Respondent, amounts to the trial judge avoiding the issues submitted to him for determination and/or raising an issue suo motu. (Distilled from Grounds 1 and 2 of the Notice and Grounds of Appeal).
(ii) Whether the learned trial Judge was wrong in his appraisal/evaluation of the case of the Appellant when he came to the conclusion that the procedure adopted by the Appellant in dismissing the Respondent evolved outside the provision of Article 6.4.2.2 of the Appellant’s Human Resources Manual. (Distilled from Ground 3 of the Notice and

Grounds of Appeal).
(iii) Whether the finding of fact by the learned trial Judge on the re- investigation of the Respondent by the Appellant’s Central Disciplinary Committee (C.D.C.), after the Report of the Departmental Investigative Committee, was not supported by evidence. (Distilled from Ground 4 of the Notice and Grounds of Appeal).

I am of the solemn view that the appeal can be determined on the three issues formulated by the Appellant and they will be taken together.

Learned Counsel to the Appellant submitted on issue 1 that the grievance of the Appellant on the instant point stemmed from the fact that the Learned trial Judge reached his verdict primarily on the issue of re-investigation of the Respondent which was not submitted before him for determination, without affording parties the opportunity to address him on same. He relied on the following cases:
1. OSHODI V. EYIFUNMI (2000) 13 NWLR (PART 68) 298
2. UZOHO V. NCP (2007) 10 NWLR (PART 1042) at 320 page 345 para. D – G.
3. OJE V. BABALOLA (1991) 4 NWLR (PART 185) page 267.
4. IRIRI V. ERHURHOBARA (1991) 2 NWLR (PART 173) page 252.
5. EMEKE NWANA V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

(2007) 4 SCNJ 26
6. LEADER AND COMPANY LIMITED (PUBLISHERS OF THISDAY) V. MAJOR GENERAL MUSA BAMAIYI (2010) 12 SC (PART IV) 55.

That a Court of law has the vires to raise an issue it deems necessary for the determination, of the matter before it, subject to it being addressed on that point or issue by Counsel for both parties, if the decision of the Court is to be rooted or grounded on the issue so raised suo motu. He relied on the case of LAMULATU SHASI V. MADAM SHADIA SMITH & 2 ORS (2009) 12 SC (PART 111) 1.

That it has been established that the issue of reinvestigation was raised suo motu by the lower Court as same was not submitted before the trial Court for determination. That the judgment in a lis must be confined to the cause of action and the issues raised in the pleadings. He relied on the case of AWONIYI V. REG TRUSTEES OF AMORC (2000) 10 NWLR (PART 676) page 522 at 539 para A – B and UZOHO V. NCP (SUPRA)

That the lower Court has committed an infraction that breaches the right to fair hearing of the parties, particularly the Appellant who was made to suffer a miscarriage of justice. That it is a

duty on every Court to hear both parties on a matter before it. That the trial Court breached the principle of fair hearing and doctrine of audi alteram partem by raising an issue suo motu and premising its decision on same without affording parties the opportunity to address same. That the effect of denial of fair hearing by a Court is that such proceeding including its judgment is a nullity. He relied on the cases of:
1. EBE V. EBE (2004) 3 NWLR (PART 860) page 245 246 PARA H A.
2. UNITY BANK V. DENCLAG LIMITED (2012) 18 NWLR (PART 1332) page 293 at 339 PARA E-F.
3. ALAO V. NIDB (1999) 9 NWLR (PART 617) IOS A 111
4. UNIVERSITY OF LAGOS & ORS V. OLANIYAN (1985) 1 NWLR (PART 1) 156.
5. DALHATU V. TURAKI (2003) 7 SCNJ 1 AT 112.
6. OKONKWO V. OKONKWO (1998) 10 NWLR (PART 571) 554 AT 570
7. NWOKORO V. ONUMA (1990) 3 NWLR (PART 136) 22 AT 31.

That the lower Court failed to probe into the conduct of the Respondent and appraise it in line with the Appellant’s Human Resource Policy and Procedure Manual (HRPPM), with a view to ascertaining whether the action of the Respondent fell within the purview of those punishable by

dismissal.

That this Honourable Court ought to set aside the determination of the lower Court made on an issue raised suo motu by the lower Court. He again relied on the case of LAMULATU SHASI V. MADAM SHADIA SMITH & 2 ORS (2009) 12 SC (PART 111) 1.

That the Appellant is aware that it is not in all cases where a Court raises an issue suo motu that will lead to the reversal of the decision so reached. But once the Appellate Court finds that the decision has occasioned a miscarriage of justice and such is substantial, the decision will be reversed. That it is obvious in the instant appeal, that the issue raised suo motu by the lower Court was the foundation upon which its decision was built and that it occasioned a miscarriage of justice. He urged this Court to uphold its submission on issue 1 and set aside the finding of the trial Court.

In response, under issue 1 Learned Counsel to the Respondent contends general rule of law is that a Court in the determination of any matter ought not to raise an issue of fact suo motu without giving the parties the opportunity to be heard on it before proceeding to decide on it. That failure to do so will

amount to a denial of fair hearing. He cited the case of UNICAL V. UMOH (2011) 5 NWLR (PART 1241) 546.

That the above mentioned general rule has several exceptions which come to play only after it is confirmed that an issue of fact has been so raised suo motu by a Court without affording the parties an opportunity to address the Court on same.

That the finding of the Learned trial judge to the effect that the Respondent was re-investigated by the Appellant’s C.D.C. cannot be regarded as an issue raised suo moto by the trial Court to warrant addresses from Counsel. That what the Appellant complained of as an issue raised suo motu was a finding of fact and a justifiable inference made by the Learned trial Court based on the documentary and oral evidence before it.

That the Respondent was investigated twice by the Appellant in the process that led to the Respondent’s alleged dismissal. That the Appellant initially investigated Respondent’s through the Departmental Investigative Committee which recommended at the end of her deliberations a written warning as punishment for the Respondent.

Thereafter, according to Respondent’s Counsel the

Appellant constituted another committee which was the Central Disciplinary Committee which recommends a dismissal as punishment for the Respondent. That this shows that the Appellant was investigated twice by two separate committees of the Appellant albeit on the same set of facts and allegations. That the finding of the lower Court that the Respondent was reinvestigated is supported by the evidence before it.

That the question which the Learned trial judge had the duty to resolve was whether the recommendation of the Departmental Committee was dealt with in accordance with Articles 6.4.2.2 as alleged by the Appellant. That the issue of re-investigation and its validity or otherwise was a live issue before the trial Court. He referred to page 23 of the Supplementary record of appeal where under Cross Examination the Appellant’s sole witness said the Respondent was investigated by a departmental committee and the committee issued a report. That he further said that he participated in another investigative proceeding of the CDC hence confirming that there were two investigative proceedings.

That the Appellant in its Brief of Argument did not refer this

Court to any section of the HRPPM which justifies or at least permits a re-investigation by the CDC after a Departmental Investigative Committee has concluded an investigation and recommended that the Respondent be given a written warning.

That the finding of the trial Court that the Respondent’s employment is one that has statutory favour, which by law requires strict compliance with the laid down procedure was not appealed against by the Appellant. That this finding which was the basis of the lower Court’s decision as to the reinvestigation remains sacrosanct.

That in arriving at the finding that the subsequent queries issued to the Respondent after Exhibit C8 (the query of 31st August, 2015) was a re-investigation, the Learned trial Judge made copious reference to the relevant section of Exhibit D21 (the HRPPM) and other exhibits tendered and admitted in evidence before him.

That the law is trite that where an employee challenges the validity of his dismissal as in the case before the lower Court, the onus is on him to place before the Court the document embodying the terms and condition of service before the Court. He cited the case of

DAPAN VS. MANGU Local Government Council (2013) 2 NLWR (Pt. 1338) 203.

That the law is trite that evaluation of evidence and making of primary finding of facts thereon is the duty of the trial Court, and an Appellate Court will not interfere with such finding unless it is shown not to have been done according to laid down principles of law. He relied on the following cases:
1. AKINLOYE V. EYIYOLA (1968) NMLR R92.
2. IRIRI VS. ERHURHOBARA (1991) 2 NWLR (PART 173) 252.
3. MOMOH V. UMORU (2011) 15 NWLR (PART 1270) 212 at 274 – 275.
4. ABDULLAHI & ORS V. ADETUTU (2019) LPELR 47384 (SC)
5. MAFULUL & ORS V. TAKWEN ORS (2018) LPELR 45635.

That the Appellant conceded in paragraph 3.17 of her Brief of Argument that her “submission is hinged on the fact that the issue submitted before the trial Court for judicial intervention revolves around the eligibility of the Respondent for dismissal in view of the infraction committed and the provision of the Human Resource Policies and Procedures Manual (HRPPM)”, that there are inconsistent submissions.

That parties must be consistent in the case they make before the Court. He relied on the

case COMPTROLLER OF CUSTOMS & ORS V. GUSAU (2017) LPELR – 42081 (SC).

That the argument and cases cited by the Appellant are inapplicable to the instant Appeal as no issue was ever raised suo motu by the lower Court to warrant the invitation of the parties for any address.
He urged this Court to resolve this issue one in favour of the Respondent.

Learned Counsel to the Appellant in respect of issue 2 refers to the Amended Statement of Defence filed on 17th November, 2017 contained in page 435 – 802 of the Record of Appeal. That in it Appellant chronicled the entire process that culminated in the instant Appeal, from the moment the Respondent was found to have acted in direct contravention of the Appellant’s Human Resources Policy and Procedure Manual, (HRPPM) till the moment a disciplinary action was taken against him in line with the provision of the Appellant’s Human Resources Policy and Procedure Manual, (HRPPM).

That the Amended Statement of Defence and Defendant’s Final Written Address before the Lower Court stated the procedure adopted by the Appellant is in line with its Human Resources Policy and Procedure Manual, (HRPPM) in

taking disciplinary measure against the Respondent.

That the investigation of the CDC on query of 6th October, 2015 revealed that the Respondent breached the trust reposed in him by the Appellant.

That the Respondent did not demonstrate an understanding of the gravity of his act and the intricate workings of the investigation exercise which he went through. That any form of misconduct is an unacceptable conduct. That when any committee or Panel lays out the unacceptable conduct for an employee by a query, an investigation is conducted, the finding of the Committee or Panel will determine categorization of the unacceptable conducts which may either fall under the disciplinary action of Gross Misconduct or Ordinary Misconduct. That the investigation revealed that the claimant was in “Breach of trust” reposed on him. That this is a Gross Misconduct under Section B(1) of Article 6.4.2.2. of the Manual and the Respondent was sanctioned under the said Article accordingly. He relied on the case of NWOBOSI V. ACB (1995) 6 NWLR (PART 404) 658 at page 686 para. D.

That the implication of the wrong findings by the lower Court that the procedure adopted by

the Appellant evolved outside the provision of Article 6.4.2.2 of the HUMAN RESOURCE POLICIES AND PROCEDURE MANUAL is that the judgment of the lower Court will be set aside by this Honourable Court. That the basis upon which the decision of the lower Court was founded has occasioned in a miscarriage of justice. He relied on the following cases:
1. OJENGBEDE V. ESAN & ANOR (2001) LPELR – 2372
2. SPDC (NIG) PLC V. DINO (2007) 2 NWLR (PART 1019) PG. 438 at 466 PARA E – F.
3. BALOGUN V. AKANJI (1988) 1 NWLR (PART 70) 301
4. KODINLIYE V. ODU (1935) 2 WACA 366.
5. ANYABINE V. OKOLO (1998) 13 NWLR (PART 582) 444 at 461 – 462.

He relied on the cases of GBADAMOSI V. DAIRO (2007) 3 NWLR (PART 1021) 282 at 306 and AKPAN V. BOB (2010) 17 NWLR (PART 1223) 421 at 479 to define miscarriage of justice. He urged this Court to resolve issue 2 in the Appellant’s favour.

In response to submissions under issue 2, the Learned Counsel to the Respondent submits that the Appellant as Defendant at the lower Court did not file any counter-claim. That the lower Court only considered and determined the case within the parameters of the Respondent’s

case and found that the procedure adopted by the Appellant in dismissing the Respondent evolved outside the Appellant’s condition of service as contained in the HRPPM.

That the lower Court and the parties were bound by the pleading including the Respondent’s claim. That query of 31st August, 2015 which initiated the Respondent’s disciplinary procedure was predicated on chapter 5(f) of the Appellant’s HRPPM on conflict of interest and it required the Respondent to explain in writing why disciplinary action should not be taken against him in accordance with Chapter 6.4.2.2 (B)2 (xi) of the HRPPM.

That the queries and investigations by the Departmental Disciplinary Committee and the Central Disciplinary Committee were centered on conflict of interest and unacceptable conduct which if established could only lead to termination and not dismissal. But the Appellant dismissed the Respondent vide the letter dated January 19, 2016.

He submitted that if Article 1.5(f) and 6.4.2.2 are read in conjunction with the queries issued in the Respondent, it will show that the Appellant did not comply with her condition of service in dismissing the Appellant. That

it is trite that once the law has prescribed the ways and manners of doing particular thing, no other method will be followed. That the Appellant’s HRPPM has copiously prescribed the way and manner for the dismissal of an employee for Gross Misconduct summarily, and that way and not other way must necessarily be followed to validate the dismissal. He relied or the following cases:
1. FGN VS. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PART 798) 162 @ 200 – 201
2. IBEZIAKO V. IBEZIAKO (2016) LPELR 40958 (CA)
3. UNION BANK OF NIGERIA VS OGBOH (1995) 2 NWLR (PART 380) 647 @ 669
4. IDERIMA VS. RIVERS STATE CIVIL SERVICE COMMISSION (2005) LPELR 1420(SC)

That the law is trite that in a claim for wrongful dismissal of an employee, such as the instant case, the Respondent who complains that his employment has been wrongfully terminated or abruptly brought to an end must base his claim on the contract of service and show in what manner the wrong was done. He relied on the cases of:
1. AHMED VS. ABU & ANOR (2016) LPELR – 40261 (CA).
2. ZIIDEEH VS. RSCSC (2007) 3 NWLR (PART 1022) 544 SC.

He submitted that under the HRPPM, the

process of termination or dismissal can only be complete with decision being conveyed by the Director, Human Resources and no other person. That the Record of Appeal shows that the letter purporting to dismiss the Respondent was signed for the Head, Employee Relations & Welfare Officer For: Director, Human Resources Departmental. He referred to exhibit C14 at page 1213 of the Record of Appeal.

That the above fact was never disputed by the Appellant at the lower Court and as it is in matters of discipline, the law requires strict compliance with the prescribed procedure. That compliance with one of the prescribed conditions or failure to comply with any of the procedure is tantamount to non-compliance as there can be no partial or half compliance. He relied on the case of BAMGBOYE VS. UNVERSITY OF ILORIN (1999) 6 SCNJ 295 and AHMED VS. ABU (SUPRA) ratio 13.

That another violation is that the Appellant’s condition of service does not make room for reinvestigation after a department has concluded its investigation and recommended that Respondent be given written warning. That any purported reinvestigation without following through the first

recommendation by having the head of Department review same and forwarding same to appropriate quarters is a procedure that evolved outside 6.4.2.2 of the HRPPM.

That the finding of the CDC was not supported by the allegations in the queries which were predicated in conflict of interest. That case of NWOBOSI V ACB (1995) 6 NWLR (Part 406) was quoted out of context and he urged this Court to discountenance same.

That it was never the case of the Appellant at the lower Court that due to the fact that the Department gave its Report without receiving the subsequent reports and the Director was not satisfied with the conclusion of the Departmental Committee, the matter was referred to the Central Disciplinary Committee which after a full and thorough investigation found that the Respondent had indeed exhibited behavior amounting to breach of trust. That the Appellant has not sought leave to adduce fresh evidence of these facts before this Court.

That it is not true when the Appellant argued that the Respondent did not deny any of the set of facts leading to his dismissal at the lower Court and that no pronouncement was made by the lower Court on same.

That this submission on availability of the so called subsequent report was never raised by the Appellant at the trial Court to afford the Respondent opportunity of denying same and also for the lower Court to pronounce on same. That the law is trite that a Court cannot pronounce on issues not brought before it. He cited the case of IHESIABA & ORS V OCHEPA (2015) LPELR – 24822 (CA). He urged this Court to resolve issue 2 in favour of the Respondent.

On issue 3, Learned Counsel to the Appellant sought the indulgence of this Court to rely on arguments canvassed on issues 1 and 2. In addition he submitted that it is trite that a Court of law must dissuade itself from speculation or conjecture, otherwise whatever decision reached will occasion a miscarriage of justice. He relied on the following cases:
1. MOBIL (NIG) LIMITED V. PAM (2000) 5 NWLR (PT. 657) 506 at 527.
2. OGUNYE V. STATE (1999) 5 NWLR (PART 604) 518.
3. ITESHI ONWE V. THE STATE (1975) 9 – 11 SC 23.

That the finding of the lower Court that there was a reinvestigation was founded on speculation, presumptions and wrong appraisal of the evidence placed before the Court.

That what the lower Court tagged reinvestigation was investigation carried out by Appellant upon discovery of new sets of facts about activities of Respondent. He relied on the following cases:
1. AKHIGBE V. ENAGBONMUNA (2019) LPELR 46466 (CA)
2. EMEKA NWANA V. FCDA (2007) LPELR – 2101 (SC)

That an appellate Court will interfere to set aside any decision based on speculation. He relied on the following case:
1. IKENTA BEST (NIG) LTD V. ATTORNEY GENERAL RIVER STATE (2008) LPELR – 1476 (SC)
2. ALLI V. ALESINLOYE (2000) FWLR (PT.15) 2610; (2000) 6 NWLR (PT.600) 117.
3. OMIDIORA V. FED. CIVIL SERVICE COMM. (2007) VOL. 44 WRN 53 at 73 LINES 5 – 20 (CA).

That it is a time honoured law that a decision of Court based on suspicion and speculation is faulty. He cited the following cases:
1. ARCHIBONG V. ITA (2004) 2 NWLR (PART 858) 590 at 597.
2. ACB PLC V. EMOSTRADE LIMITED (2002) 8 NWLR (PART 770) 501.
He urges this Court to resolve issue 3 in Appellant’s favour.

In response, under issue 3, the Learned Counsel to Respondent stated that the lower Court did not presume or speculate on issue or fact in her

judgment.

That the argument canvassed in paragraph 3.3.6. of the Appellant’s Brief of Argument amounts to an appeal to sentiment which has no place in adjudication as the Courts are enjoined to decide cases based on evidence before them which is what the lower Court did in this case. He cited the case of PDP v. IDABOH & ORS (2017) LPELR – 43404 (CA).
He urged this Court to uphold the judgment of the lower Court and dismiss the Appeal.

LEADERS & CO LTD V. BAMAIYI (2010) 18 NWLR (PART 1225) 329 AT 338 D -G per GALADIMA, JSC
“The proper role of a Court in our accusatorial model of procedure is to pronounce on and determine issue in controversy submitted to it. It is the parties who themselves play the primary role in the process, at the trial stage, by the issues raised on their pleadings: where the case is tried on the pleadings, and at the appellate stage, by the issues arising from the grounds of appeal raised by the appellant. It is not for the Judge to initiate controversy. His role in the accusatorial model is first and foremost that of an umpire and it is in that role that he offers assistance by directing proper focus to what the Parties themselves may have articulated without sufficient clarity as the question in controversy. There are the exceptional cases where it is permissible for the Court to take an initiative to raise an issue on its own motion. Some of such instances are when the issue relates to its own jurisdiction; or, when both parties have ignored a statute which may have decisive bearing on the case; or, when on the face of the record serious question of the fairness of the

proceedings is evident.
The power of the Court to make consequential orders as the Justice of a case demands on its own motion though to be exercised with circumspection, also exists. The cases cited by learned counsel for the appellant such as Hanson v. Wearmouth Co. Ltd. (1939) 3 All ER 47; Rutherford v. Richardson (1922) All ER (Rep) 13; Aboud v. Regional Tax Board (1966) NMLR 1 DO; Re Whiston (1924) 1 CH 122 and Williams v. Akintunde (1995) 3 NWLR (pt. 381) 101 fall into one or the other of these categories. Notwithstanding the exceptions, the general rule is that when an issue is not placed before the Court, it had no business whatever to deal with it: Ebba v. Ogodo & Anor (1984) 1 SCNLR 372; (1984) 15 NSCC 255, 266 per Eso, JSC. Is there anything to take this case out of that general rule?” (underlined mine)
3. COMPTOIR COMMERCIAL & IND S. P. R. LTD V OGUN STATE WATER CORPORATION & ANOR (2002) 9 NWLR (PT. 773) 629 AT 651 B-G per AYOOLA, JSC.

Now the learned trial Judge in his judgment on pages 16-17 of the judgment contained on pages 2156 – 2157 of the record of appeal held as follows:

The Claimant was dismissed from the defendant’s establishment vide Exhibit C 16 dated 19th January 2016. The claimant has presented the CBN Human Resource Policies and Procedures Manual (HRPPM).
71. A careful perusal of the CBN Human Resource Policies and Procedures Manual (HRPPM), notably Article 6.4.2.2, Article 6.4.2.2 of the CBN Human Resource Policies and Procedures Manual (HRPPM). I find that the Claimant is entitled to the grant of relief 1. It is worthy to note that both parties agree that the provisions of CBN Human Resource Policies and Procedures Manual (HRPPM), as both parties filed tendered and relied on this exhibit in this trial.
Article 6.4.2.2. provides as follows
A. Work Performance
B. Conduct
a. behaviour constituting gross misconduct for which summary dismissal is normally appropriate.
i. Conviction for a criminal offence except conviction for traffic offence
ii. Theft fraud and forgery
iii. Absent from duty without permission for one month.
iv. Breach of trust falsification of office documents and records.
v. Acts of Bribery and corruption or attempts to corrupt or bribe others whether they are employees or not.

Malicious damage to Banks property
vii. Physical assault and Battery
viii. Prolonged absence/absconding from duty for a period of 30 days or more without permission
ix. Presentation of false forged credentials on appointment or, for upgrading.
x. Failure to report for study leave after study leave with pay or Bank Sponsorship or exit from Bank’s service within the period of sponsorship.
72. Article 6.4.3.6. deal with the procedure for dismissal (1294)
73. I find that particularly this article lays down the procedure to be followed where any of the acts warranting dismissal were to occur and in such a case the Head of Department of the erring staff is to review the recommendation of the Disciplinary Committee, who then forwards his review together with the said report to the (in this case) Director Human, Resource, through the deputy Governor, the Director Human Resource thereafter approves the recommendation.
74. In the instant case the claimant was issued a query on 31st August 2015, “Exhibit C8 to which he responded on 1st September 2015 Exhibit C9, invited to appear before the other Financial Institutions

Supervision Department (OFISD) on alleged Conflict of Interest and Unacceptable Conduct the committee after the investigation recommended in a report dated 8th September 2018 that a written warning be given to the Claimant.
75. The Claimant received on the 21st September, 2015 Exhibit 07 a query from the Human Resources Department he responded in Exhibit 08 dated 28th September, 2015; and that on 30th September, 2015 the Claimant was invited before the Central Disciplinary Committee (CDC) of the Defendant. He was again queried on the 7th October, 2015 Exhibit D10 to which he responded Exhibit D11 and was yet again given a query dated 7th October, 2015 Exhibit E12 and he responded Exhibit 013.
76. The Claimant answered all the queries issued by the Defendant he was made to face the Defendant’s CDC which re-investigated and allegedly found the Claimant guilty of Gross Misconduct, the CDC after its investigation issued a report which recommended the Claimant’s dismissal.
77. The procedure adopted by the defendant I find evolved outside the provisions of Article 6.4.2.2 of Human Resource Policies and Procedures Manual (HRPPM), having initiated

the process of the query of 31st August which culminated in a warning, the condition of service does not provide for a re investigation. The Human Resource Policies and Procedures Manual (HRPPM), notably Article 6.4.2.2 provides for the head of Department to review the report of a committee and forward both its review and the report to the Deputy Governor. I find that in neither the procedure that commenced with a query of 31st August 2015 nor the reinvestigation process which in itself is improper and at variance with the condition of service.

The Respondent did not in his Amended Statement of facts AND WITNESS STATEMENT ON OATH amended pursuant the order of Honourable Justice AGBKOBA (trial Judge) dated 2nd November, 2017, plead any issue(es) relating to the manner he was queried and he did not plead any complaints about the fact that he was made to face Central Disciplinary Committee of the Appellant which the lower Court claimed “reinvestigated” and found him guilty of gross misconduct.

The Respondent did not plead that the Appellant operated outside the provisions of Article 6.4.2.2 of the Human Resources Policies and Procedures Manual,

HRPPM.

For ease of reference, the Claimant now Respondent pleaded in paragraphs 6 – 25 of his Amended Statement of facts aforesaid as follows:
6. The Claimant was until 19th January, 2016, a Senior Manager (with ID. No. 18570) in the employment of the Defendant herein.
7. The Claimant avers that the relationship between himself and the Defendant was largely regulated by the Human Resources Policies and Procedure Manual
(HRPPM).
8. The Claimant avers that sometime in August, 2015, he was alleged to have been involved in acts unacceptable to the Defendant. An internal memo of the Defendant (dated 31st August 2015) issuing a query to the Claimant is pleaded and shall be relied upon at the trial of this suit.
9. The Claimant responded to the query issued to him in the August 31, 2015 internal memo. A copy of the Claimant’s response (dated 8th September, 2015) is pleaded and shall be relied upon at the trial.
The Defendant is hereby put on Notice to produce the original copy of the Claimant’s response.
10. Through an internal memo dated September 4 2015, the Claimant was invited to attend a Departmental Investigative

Committee Session on September 7, 2015. The invitation letter from the Defendant’s Other Financial Institutions Supervision Department is hereby pleaded, and shall be relied upon at the trial.
11. On September 8, 2015 the Claimant wrote to the management of Diamond and Gold Global Consults (Nig.) Ltd complaining about the inclusion of his personal phone number in the Company’s documents and inviting the Company’s Managing Director to a meeting in the premises of the Defendant. The letter dated 8th September is hereby pleaded and shall be relied upon at the trial.
12. On September, 30 2015, the Claimant was invited before the Central Disciplinary Committee (CDC) through a letter with reference no: HRD/EPR/DSA/SEC/1172 to defend himself. The letter is hereby pleaded, and shall be relied upon at the trial.
13. On October 6, 2015, the Defendant (through its Human Resources Department) issued the Claimant a query through the Director: Other Financial Institutions Supervision Department. The query signed by the Head, Employee Relations & Welfare Office (For: Director, Human Resources Department) is hereby pleaded, and shall be relied upon at the

trial.
14. On 7th October 2015, the Defendant issued the Claimant another query through a letter with reference no: HRD/EPR/GEN/QUR/11/77. The query signed by the Chairman, Central Disciplinary Committee (For: Director, Human Resources Department) is hereby pleaded, and shall be relied upon at the trial of this suit.
15. On October 7, 2015 the Claimant responded to the Defendant’s query of October 7, 2015. The response titled: Response to the HRDs’ Query (2) is hereby pleaded, and shall be relied upon at the trial of this suit.
16. The Claimant further avers that the allegations in the queries dated 6th and 7th October, 2015 respectively served on him do not fall within the scope of gross misconduct as provided in the Defendant’s Human Resources Policies and Procedures Manual (HRPPM).
17. The Claimant also states that he was never investigated by the Defendant for any act constituting gross misconduct. The claimant was also suspended on the 28th October, 2015 without any pay.
18. The claimant states further that the Central Disciplinary Committee (CDC) is not a final authority of the Defendant to dismiss the Claimant or terminate

his employment under the HRPPM.
19. The procedure adopted by the Defendant in dismissing the Claimant did not comply with Section 6.4.3.5. and 6.4.3.6 of the HRPPM.
20. The Claimant carried out his assignment on the petition by Centage Primary Mortgage Bank Ltd against the Nigerian Deposit Insurance Corporation (NDIC) to the Defendant with all the objectivity required and issued a recommendation to the Defendant accordingly.
The internal Report of the CBN examination Report on the Centage Primary Mortgage Bank Ltd to the Defendant covering the period of 30th June, 2013 to September, 30 2014 indicating the effects of the shady deal by NDIC against Centage Primary Mortgage Bank ltd subtitled “as significant recent events” is hereby pleaded. Notice is hereby given to the Defendant to produce the original copy of final report of same at trial.
21. The claimant also states that he also issued two other reports covering the period of 29th April, 2015 and 2nd July, 2015 respectively on the same Centage Primary Mortgage Bank Ltd’s petition against NDIC but the Defendant failed to act on the report. The Claimant shall rely on the reports dated 29th

April, 2015 and 2nd July, 2015 are hereby pleaded and shall be relied upon at trial. Notice is hereby given to the Defendant to produce the original copy of same at trial.
22. The Claimant further avers that his dismissal from the services of the Defendant was actuated by and done mala fide/bad faith.
PARTICULARS OF BAD FAITH
1. The Claimant’s dismissal was done in haste without recourse to Section 6.4.3.5 of the HRPPM of the Defendant.
2. The CDC did not forward its recommendation to the committee of Governors for either approval or disapproval in line with Section 6.4.3.6 of the Defendant’s HRPPM
3. The decision to dismiss the Claimant was not signed by the designated officer of the Defendant. The investigation panel of the OFISD alleged to have established a case of conflict of interest against the Claimant at pages 8 and 21 of the CDC report.
4. The punishment for acts of conflicts of interest is termination not dismissal.
5. The CDC in its report suggests dismissal instead of termination contrary to its finding, which report was never submitted to reviewed by any other committee of the Defendant.

After all the queries alleging unacceptable conducts against the Claimants, the respective responses to the queries” and appearances before the Department and Central Disciplinary Committee, no verdict of any committee or panel was ever communicated to the Claimant detailing what act of the Claimant which is considered unacceptable by the Defendant.
24. The Claimant avers that no other allegation apart from that stated above was ever investigated, tried and a verdict of guilty returned against him.
25. The Claimant was subsequently issued a letter of dismissal dated 19th January, 2016 and the dismissal was hinged on grounds of gross misconduct.
The said letter of purported dismissal is hereby pleaded and shall be relied upon at the trial of this suit.”

The queries given to the Respondent on 6th October 2015 and 7th October, 2015 respectively reads as follows:
“HUMAN RESOURCES DEPARTMENT
Central Bank of Nigeria Central Business District
P.M.B. 0187
Abuja
HRD/EPR/GEN/QUR/11/74
October 6, 2015
MR. DAVID O. AHERUVOH (ID. NO. 18570), SENIOR MANAGER
Thro: Director,
Other Financial Institutions Supervision

Department,
Central Bank of Nigeria Abuja,
Dear Sir,
QUERY
You will recall that you appeared before an Investigation Panel set up by your department in respect of an alleged case of unacceptable conduct, preferred against you in the handling of a petition to the Bank by Centage Savings & Loans Limited, against the Nigerian Deposit Insurance Corporation (NDIC).
Investigation revealed that, contrary to the Bank’s rules and regulations you, a Senior Manager and the Relationship Manager of Centage Savings & Loans Ltd.
1. Owned and managed the following entities while in the employment of the Bank: Diamond and Gold Global Consults Nigeria Limited and David Gold and Company.
2. Advised the MD/CEO of Centage Savings LoansLimited to engage one of your companies, David Gold & Co as external Auditors to Centage Savings & Loans Ltd.
3. Used one of your companies, David Gold Co., to serve external Auditors to Centage Saving & Loans Ltd.
4. Used one of your companies, Diamond and Gold Consult Nigeria Limited to write petition to the bank on behalf of Centage Savings & Loan Ltd against NDIC.

Personally appraised the petition your company wrote on behalf of Centage Savings Loans Ltd thereby undermining the objectivity of the exercise.
Management views these acts of yours with grave concern.
You are therefore required to explain in writing to the satisfaction of the Director, Human Resources Department on or before the close of business on Wednesday, October 7, 2015, why disciplinary action should not be taken against you in accordance with Chapter 6.4.2.2 of the CBN Human Resources Policies & Procedure Manual (HRPPM).
NOTE: This query supersedes our earlier one dated September 21, 2015 with reference No, HRD/EPR/GEN/QUR/11/62.
Yours faithfully,

_____________________________
Head, Employee Relations & Welfare Office
For: Director, Human Resources Department.”

“HUMAN RESOURCES DEPARTMENT
Central Bank of Nigeria Central Business District P.M.B.0187 Abuja.

HRD/EPR/GEN/QUR/11 /77
October 07, 2015
MR. DAVID O. AHERUVOH (ID. NO. 18570), SENIOR MANAGER
Thro: Director,
Other Financial Institutions Supervision
Department,
Central Bank of Nigeria Abuja.
Dear Sir,

QUERY
You will recall that

you were served with a query dated 6th October 2015 in respect of an alleged case of unacceptable conduct, preferred against you in the handling of a petition to the Bank by Centage Savings & Loans Limited, against the Nigerian Deposit Insurance Corporation (NDIC).
Further investigation revealed that, contrary to the Bank’s rules and regulations, you, a Senior Manager and the Relationship Manager of Centage Savings & Loans Ltd.
1. Bears and is known by the name Asuva Ohiku which is different from the name David Ohiku Aheruvoh by which you are known to the Central Bank of Nigeria.
2. Are the sole signatory to Diamond and Gold Global Consults Nigeria Limited’s account number 631/929658/1/1/0 in Guaranty Trust Bank Plc. under the name Asuva D. Ohiku, despite your denial, in your the query, that you are the owner of that company.
3. Own and manager Kingsnet Infocom Limited while in the employment of the Bank, under the name Asuva Ohiku.
4. Are the sole signatory to Kinsnet Infocom Limited’s account number 6011336703 in Zenith Bank Plc. under the name Ohiku Asuva.
5. Are the sole signatory to David Gold & CO’s

account number 1013125867 in Zenith Bank Plc. despite your claim, in your response to the query, that you had resigned from that company before joining the Central Bank of Nigeria in 2003.
Management views these acts of your with grave concern.
You are therefore required to explain in writing to the satisfaction of the Director, Human Resources Department on or before the close of business on Thursday, October 8, 2015, why disciplinary action should not be taken against you in accordance with Chapter 6.4.2.2 of the CBN Human Resources Policies & Procedure Manual (HRPPM).

___________________________
Chairman, Central Disciplinary Committee
For: Director, Human Resources Department.”

The above quoted queries referred to as D10 and E12 respectively are not on all fours with the query given on 31st August, 2015 Exhibit C8. The query of 31st August, 2018 Exhibit C8 reads:
“To: David Ohiku Aheruvoh (ID 18570), Senior Manager, Other Financial Institutions Supervision Department, Abuja.
From: Head, Group 9
Ref: OF1/DIR/GEN/05/511
DATE: August 31, 2015
SUBJECT: QUERY
Please recall your appraisal of a petition against the Nigeria Deposit

Insurance Corporation (NDIC) by Diamond & Gold Global Consult on behalf of Centage Savings and Loans Limited. The petition arose from a transaction between (NDIC) and Centage Savings and Loans Limited on the sale of Hallmark Homes Limited, a fully owned Subsidiary of Hallmark Bank Plc, which was in liquidation.
Also recall that, during the appraisal, there was an urgent need for you to travel outside the country to witness the graduation ceremony of your son as requested by you. There was also the need to request for additional information from the petitioner, Diamond & Gold Global Consult.
The appraisal continued in your absence. In an effort to link with Centage Savings and Loans Limited or Diamond & Gold Global Consult to submit the additional information required, we placed a phone call to Diamond & Gold Global Consult using the phone number quoted on their letter-headed paper This was after the efforts to get in touch with Centage Savings and Loans Ltd failed, as the telephone numbers on their letter-headed papers, as stated on some Centage in their petition, were not current, more especially that the bank has two addresses in

Abuja.
We were surprised that the telephone number on Diamond & GOLD Global Consult letter headed paper was the same with your official phone number on our mailing list. A search at the Corporate Affairs Commission (CAC) showed that you are registered as one of the Directors of Diamond & Gold Global Consult Nigeria Limited.
The discovery put a lot of doubts on your independence, sincerity, and objectivity in appraising a petition by you on being the relationship officer. It is also serious indictment on you for presiding over a case in which you are an interested party. This amounts to conflict of interest and an unacceptable conduct as stipulated in Chapter 1.5(f) of the Human Resources Policy and Procedure Manual (HRPPM).
Management views this act of yours with grave concern.
You are therefore, required to explain in writing to the satisfaction of the Director, Other Financial Institutions Supervision Department, within twenty-four (24) hours why disciplinary action should not be taken against you in accordance with Chapter 6.4.2.2(B) 2(xi) of the Human Resources Policy and Procedure Manual.
Your explanation should

reach the Director on or before 12.30 pm on Tuesday, September 1. 2015.”

There could not therefore be any question of a reinvestigation by CDC. There can be no question of Respondent being made to face Defendant’s CDC after “the claimant answered queries issued by the Defendant.”

The further queries given to the Respondent related to new and different facts from the subject matter of query of 31/8/2015.

The same queries were shown to the Respondent under Cross Examination by Learned Counsel to the Appellant. See page 12 of the Supplementary Record filed on 21/1/2020. He (Respondent) stated he admitted all allegations levied against him. On page 12 of the supplementary record the following could be seen under cross examination.
“You are invited to face an Investigation Panel with respect to this panel?
Yes I was
And the panel gave a warning instead of termination?
Yes, that is the correct sanction recommended, a warning which is the correct procedure as per the manual
Look at C11 and 12
These are subsequent query 6/10/16 and 7/10/16
Yes they are queries
Due to the unsatisfactory verdict of the

Investigation Panel your case was escalated to the HR Department, consequent upon which you were invited to answer to this queries?
Yes but that is the right position.
Look at C8
This is my written response but not to the query, this is another address to the Investigative Committee.
You admitted at the allegations leveled against you in the written address?
Yes I was persuaded to do so.”
(Underlined mine)

On page 13 of the supplementary record he also said under Cross Examination.
“You condemn the procedure but agree with the report? Look at the queries of 6th and 7th October, 2015 and read the last paragraph of both queries.
Do you mean your response was brought under different provisions?
There is a marginal difference between the query of 7th October, 2019 and that 31st August, 2015.
So they are Different?
Yes
Were you invited to face the Central Investigative Council?
Yes I was
You were also allowed to bring in as many witness as possible?
Yes I was

During the several session, many witnesses were called
Yes”
(Underlined mine)

The issues bordering on reinvestigation process and its unlawfulness were not agitated before the trial Court in any of the pleadings of the parties and the reliefs sought. The points were raised suo motu by the learned trial Judge without affording the parties particularly the Appellant against which the learned trial Judge utilized the issue raised suo motu against the Appellant.
The trite law is that where a Court raised an issue suo motu no matter how clear it may appear, it is the bounden duty of the trial Court which raised an issue suo motu to adhere to the principles of fair hearing by affording the parties the opportunity of being heard before the Court proceeds to determine the issue behind the back of the parties. In this case the points taken suo motu by the trial Court were decisively used against the Appellant to found in favour of the Respondent.
The learned trial Judge’s approach and decision on it have no doubt affected the rights of the Appellant to fair hearing and it is liable to be set aside.
1. OLUWAROTIMI ODUNAYO AKEREDOLU VS. DR. OLUSEGUN MICHAEL ABRAHAM (2018) 10 NWLR (PART 1628) 570 at 532 A – C per OKORO JSC
2. SOUTH ATLANTIC PETROLEUM LIMITED VS. THE MINISTER OF PETROLEUM RESOURCES & ORS

(2018) 6 NWLR (PART 1616) 391 at 413 to 414 per AUGIE, JSC who said:
“The appellant’s position is that it raised suo motu the question of the expiration of OPL 246 without inviting or giving parties an opportunity to address it and it proceeded to use the expiration of the OPL as a basis for dismissing the appeal. It cited the following:-
Oje v Babalola (supra) at 280, paras, D-G wherein Nnaemeka-Agu, JSC stated –
“There are occasions when a Court may feel that a point which has not been raised by one of the parties, is necessary for consideration in order to reach a correct decision in a case. In the few cases when this situation does arise it is always necessary for the judge to bring it to the notice of the parties or their counsel, as the case may be so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing.
…In this country this is a constitutional right and this Court has always insisted that on no account should a Court raise a point suo

motu and no matter how clear it may appear to proceed to resolve it one way or the other without hearing the parties.”
Lahan v. Lajoyetan (supra) at 200 wherein this Court also observed –
“We regret we cannot but repeat that a procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.”
3. WALTER WAGBATSOMA VS. FRN (2018) 8 NWLR (PART 1621) 199 at 221 C- E per OKORO, JSC who said.
“The law is trite that it is not the function of any Court to raise suo motu issues not canvassed in the written brief or oral arguments of counsel before the Court to which counsel were not asked to address it on. This Court has always frowned at the practice. See Onifade v. Olayiwola & Ors (1990) LPELR- 2680 (SC), (1990) 7 NWLR (Pt. 161) 130, Mojekwu v. Iwuchukwu (2004) LPELR-1903 (SC); (2004) 11 NWLR (Pt. 883) 196, Odedo v. Oguebego (2015) LPELR 24738 (SC), (2015) 13 NWLR (Pt. 1476) 229.
The view by the

learned counsel for the respondent that the issue was a mere obiter dictum does not fly at all because taking a careful look at the entire judgment; the issue was indeed part of the ratio decidendi of the judgment. His Lordship, Chima Centus Nweze, JSC has made a treatise on it in the lead judgment which I may not be able to improve on it. I rather adopt it as mine.
My view is that since the decision of the learned trial Judge was based on an issue raised and decided sou motu, the entire judgment ought to have been set aside because the parties were denied fair hearing. The issue is not whether injustice has been done because of the lack of a hearing. It is whether a party entitled to be heard before had in fact been given an opportunity of being heard. It is the law that a judgment obtained against the principle of fair hearing, no matter how well conducted, written and delivered with eloquence, is a nullity, it is not worth more than the paper it is written. See Kotoye v. Saraki (1994) LPELR – 1708 (SC), (1994) 7 NWLR (Pt.357) 414.”
Issue 1 is resolved against the Respondent in favour of the Appellant.
Issues 2 and 3 deal with allegation of wrong

appraisal of the evidence.

expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses. In the evaluation of evidence therefore, the central focus expected of a Trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire case thus arriving at the Just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291.
The Trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the Appellate Court to encroach

upon that privilege by way of interfering with the Trial Judge’s findings unless they are shown to the perverse, unsupported by evidence or based on evidence not legally admissible.”
3. ADIELE IHUNWO V JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA, JSC said:
“It has been held that it is trite law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to evaluate its decision even on facts where after giving due regard to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See: Okhuarobo & Ors v Aigbe (supra).”
I have read the record of proceedings, the oral and documentary evidence relied upon by the parties and I am of the firm view that the learned trial Judge did not properly appraise the oral and documentary evidence led by the parties.

The law is settled that unless an employee’s employment is governed by statute or regulation that can be properly called a statutory or subsidiary legislation providing for procedure for the

removal or dismissal of an employee such an appointment cannot be said to be an appointment with statutory flavour.
1. ENGR. E. O. AWALA VS NITEL PLC (2019) 10 SCM 19 AT 40 F – I TO 41 A – E per OKORO, JSC
2.COMPTROLLER-GENERAL OF CUSTOMS & ORS VS COMPTROLLER ABDULLAHI GUSAU (2017) 18 NWLR (PART 1598) 35 AT 388 E-H per M D. MOHAMMED, JSC who said:-
“The law on the point must be restated thus:- where a statute clearly provided for the employment and discipline including an employee’s retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E. P. Iderima v. Rivers State Civil Service Commission (2005) LPELR – 1420 (SC), (2005) 16 NWLR (Pt. 951) 378. In Chief Tamunoemi Idoniboye-Obu v. Nigerian National Petroleum Corporation (2003) LPELR- 1426 (SC), (2003) 2 NWLR (Pt. 805) 589 this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the

rules must be established to be:-
(1) regarded as mandatory.
(2) directly applicable to him or persons of his cadre.
(3) intended for the protection of the employment.
(4) breached in the course of determining the employment.”
And at page 390 B – F KEKERE-EKUN, JSC had this to say:
“There are three categories of contracts of employment. They are:
a) Purely master and servant relationship.
b) Servants who hold their office at the pleasure of the employer
c) Employments with statutory favour.
See: Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1
An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame v. W.A E.C. (1992) 9 NWLR (Pt.265) 303; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the

Civil Service Rules 2008. In other words, his employment enjoyed statutory favour.
The law is settled that the only way to terminate a contract of service with statutory favour is to adhere strictly to the procedure laid down in the statute. See: Bamgboye v. University of Ilorin (1999) 10 NWLR CPt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (supra).
The recent decision of the Supreme Court clearly provides and reiterates the criteria that will make an employee’s appointment statutory or with elements of statutory favour and conditions which must be met before such employee can be removed from office. See KWARA STATE JUDICIAL SERVICE COMMISSION & ORS VS MISS YETUNDE ZAINAB TOLANI (2019) 7 (PT. 2) SCM 88 AT 1034 TO 104 A – B per PETER ODILI, JSC who said:-
“On the question whether or not the employment in issue enjoys statutory flavour I need to state very humbly too, that there are two vital elements that must co-exist before a contract of employment can be said to have statutory flavour and these are:-
(i) The employer must be a body set up by the constitution or statute and;

documents tendered Respondent’s employment does not enjoy any statutory favour to merit or attract a reinstatement. The Appellant followed all due process before dismissing the Respondent.

The Respondent failed to prove that his employment was governed by any statutory instrument to enable the lower Court decree his reinstatement as it has wrongly done in this case. The Human Resources Policies and Procedures HRPPM says on page 1:
“1.0 This Manual is a detailed guide for all employees in the Bank, and is intended to assist Heads of Departments, Units, Outstations and Supervisors in providing information to their subordinates regarding the basic Terms and Conditions of Employment. In effect therefore, the information in this Manual should be made accessible to all employees in the Bank.”

I am not unmindful of learned Counsel to the 1st Respondent’s submissions in paragraphs 17-19 of Respondent’s Record as follows.-
17. My Lords, we submit and urge your Lordships to hold that under the H.R.P.P.M, the process of termination or dismissal can only be complete with the decision being conveyed by the Director, Human Resources and other person.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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As the record of Appeal shows, the letter purporting to dismiss the Respondent was signed for the Head, Employee Relations & Welfare Officer For: Director, Human Resources Department. See exhibit C 14 at page 1213 of the Record of Appeal. This is just one among several other instances of noncompliance with the terms of service complained of.
19. The above fact was never disputed by the Appellant at the lower Court, and as it is in matters of discipline, the law requires strict compliance with the prescribed procedure. Thus, compliance with one of the prescribed conditions or failure to comply with any of the procedure is tantamount to noncompliance as there can be no partial or half compliance.

The letter of dismissal referred to above reads:
“HUMAN RESOURCES DEPARTMENT,
Central Bank of Nigeria,
Central Business District,
P.M.B. 0187,
Garki – Abuja.
HRD/EPR/DSA/SEC/DML/12/60
January 19,
MR. AHERUVOH, DAVID OHIKU (10. NO. 18570), SENIOR MANAGER
Thro: Director,
Other Financial Institutions Supervision Department, Central Bank of Nigeria.
Dear Sir,
DISMISSAL FROM THE BANK’S SERVICE

We write to inform you that you have been DISMISSED from the Bank’s service with immediate effect for GROSS MISCONDUCT.
Your final entitlement from or indebtedness to the Bank, if any, is being determined and will be communicated to you in due course. Meanwhile, you are required to handover all the Bank’s property in your possession including your identity, Clinic Cards, RSA and IT Work Tools (if any), to your Director, before you leave.
Please note that as a result of your dismissal from the Bank’s service, you will no longer be allowed to enter the Bank’s premises without official permission. Kindly acknowledge receipt by signing and returning the attached copy of this letter to Head, Employee. Relations & Welfare Office, Human Resources Department, CBN Abuja.
Yours faithfully
Sgd.
For: Director, Human Resources Department
Head: Employee Relations & Welfare Office

The above letter was signed by the Head, Employee Relations & Welfare Office for Director, Human Resources Department.

The letter emanated from the Human Resources Department of the Appellant, the Department responsible for issuing letters to

employees of the Appellant. The letter is deemed signed by the Director, Human Resources as the Respondent did not prove that the letter of dismissal was unauthorized. See Section 168(1) of the Evidence Act which presumes that the letter of Dismissal was duly signed by the Director, Human Resources Department of the Appellant.
Issues 2 and 3 are also resolved in favour of the Appellant
The Appellant’s appeal succeeds and it is allowed.

The judgment of National Industrial Court of Nigeria (Coram AGBAKOGBA) delivered on 1st of March, 2019 IS HEREBY set aside.
An Order is hereby made dismissing the Respondent’s Suit NICN/ABJ/85/2016 and all the reliefs (1 – 5) therein.
Costs of N50,000.00 (Fifty Thousand Naira) is awarded against the Respondent in favour of the Appellant.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA.
I agree with the reasoning, conclusions and orders therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I agree with

my learned brother on the reasoning and conclusion arrived at in the lead Judgment.

The case of the Respondent before the trial Court was manifestly flawed and did not deserve Judgment, setting aside the Judgment given in error is the most deserved step in the circumstance. I too allow the Appeal and set aside the Judgment delivered by the Court below. I also abide by the other orders made in the lead Judgment.

Appearances:

DAVID OGUNDIPE For Appellant(s)

A. AWURU with him, J. I. AHERUVOH and R. I. ALEKE For Respondent(s)