CHRIS EHIKIOYA EIGBE v. NIGERIAN UNION OF TEACHERS
(2007)LCN/2510(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of January, 2007
CA/B/43/2000
RATIO
DEFINITION OF WORDS – ADMISSION: MEANING OF THE WORD ADMISSION
“An admission is an express or implied concession by a person of the truth of an alleged act. It is generally presumed that no man would declare anything against himself unless it was true. The admission of the appellant became credible when he pleaded for leniency.” PER GEORGE OLADEINDE SHOREMI J.C.A.
EVIDENCE – ADMISSION: WHEN WILL STATEMENTS CONTAINED IN A DOCUMENT AMOUNT TO AN ADMISSION
“It is submitted that for the contents of a document to amount to an admission, the statement therein must be direct, positive, clear and unequivocal relying on the case of:- Narindex Trust Limited vs. Nigerian Intercontinental Merchant Bank Ltd (2001) 26 WRN 83 at 94.” PER UWANI MUSA ABBA AJI, J.C.A.
EVIDENCE – ADMISSION: WHETHER A STATEMENT MADE BY A PARTY WHICH IS ADVERSE TO HIS CASE CAN ME ADMITTED AS EVIDENCE OF THE TRUTH OF THE FACTS ASCERTAINED IN THE STATEMENT
“A statement oral or written (expressed or implied) made by a party to a civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him in the proceedings as evidence against him of the truth of the facts ascertained in the statement. See SEIMOGRAPH SERVICE NIG. LTD. V. CHIEF KEKE OGBENEGWEKE (1976) 9 -10 SC 135 AT 146.” PER STANLEY SHENKO ALAGOA J.C.A.
LABOUR LAW – DISMISSAL: WHETHER AN EMPLOYER CAN DISMISS AN EMPLOYEE WHERE THERE ARE ACCUSATIONS OF GROSS MISCONDUCT AGAINST SUCH EMPLOYEE WITHOUT BEEN TRIED IN COURT
“It is now well settled that in statutory employment, as well as in private employment, the employer can dismiss an employee where the accusations against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, nor is it required under Section 36 (1) of the 1999 Constitution that employee must be tried in a court of law.” PER UWANI MUSA ABBA AJI, J.C.A.
Before Their Lordships
STANLEY SHENKO ALAGOAJustice of The Court of Appeal of Nigeria
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMIJustice of The Court of Appeal of Nigeria
Between
CHRIS EHIKIOYA EIGBEAppellant(s)
AND
NIGERIAN UNION OF TEACHERSRespondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Plaintiff/Appellant against the judgment of Hon. Justice C.O. Idahosa delivered on the 19th March, 1996 in suit No. B/536/93 while sitting in the High Court, Benin City.
The Plaintiffs claim against the Defendant as endorsed in paragraph 43 of his amended statement of claim captioned “Re Amended Statement of Claim” is as follows:-
(a) A declaration that his purported dismissal from the service of the Defendants by a letter dated 28th January, 1991 but received on 11th July, 1991 is illegal null and void and of no legal effect whatsoever.
(b) That the Plaintiff’s appointment with the Defendant subsist.
(c) Further or other reliefs as this Honourable Court may deem fit in the circumstance.
OR
In the alternative, the Plaintiff claims the sum of N13,694:08k (Thirteen Thousand Six Hundred and Ninety four Naira, Eight kobo) being arrears of salary and allowances from June 1990 – July 1991 at the rate of N928:00k per month from June 1990 – December, 1990 and N1028:00k from January 1991 to July 1991 and a declaration that he is entitled to his gratuity, other entitlements and pension.
An order that the sum together with his gratuity and pension be paid.”
Pleadings were duly filed and exchanged and the case proceeded to trial based on the Plaintiffs amended statement of claim captioned “Re Amended Statement of Claim” and the Defendant’s Amended Statement of Claim and the reply thereto. The Plaintiff testified and tendered several Exhibits. He called one witness. The Defendant also called a witness and tendered some Exhibits. At the close of evidence and address by the respective learned counsel, the learned trial Judge in a considered judgment, dismissed the Plaintiffs claim. This is what the learned trial Judge held while dismissing the Appellant’s claim.
“On the whole, I am satisfied that the plaintiff was properly dismissed after he admitted participating in the opening and operation of an illegal bank account which act was a misconduct in the performance of his duties as a finance officer to wit: a Principle Executive Officer with the Defendant in its Edo State Wing. Consequently, this action ought to be dismissed and it is hereby dismissed with N750:00 costs to Defendant.”
Dissatisfied with the said judgment the Appellant appealed to this court upon four (4) grounds of appeal dated 13th/5/96. The grounds of appeal without their particulars are hereby reproduced.
“(i) The judgment of the learned trial Judge was against the weight of evidence.
(ii) The Learned trial Judge erred in law in holding that the Appellant knew that the instruction by the then state secretary of the Respondent union was illegal and therefore article 14 (vi) (e) of Exhibit affords the Appellant no defence.
(iii) The learned trial Judge erred in law in interpreting Exhibit Rand S the replies to Exhibit D as an admission of guilt by the Appellant.
(iv) The learned trial Judge erred in law in failing to pronounce on the effect of an acting Chairman of the Defendant union initiating disciplinary action when he had no powers so to do.”
The facts giving rise to the present appeal as can be gleaned from the pleadings and evidence of the parties can be briefly summarized as follows:-
The Plaintiff was employed by the Defendant, Nigeria Union of Teachers, a Registered Trade Union for Nigerian Teachers sometime in 1970 as a typist at its Benin City Branch Office and through dint of hard work rose to the rank of Principal Executive Officer Account until his purported dismissal from that post through a letter Ref No. NUT/1663/5/120 dated 18th January, 1991 and received by the Plaintiff on 11th July 1991 on allegations of operating an illegal account with cooperative Bank, Akpakpava Street Branch, Benin City in the name of the Nigerian Union of Teachers, Bendel State wing and perpetrating fraud and financial embezzlement.
In compliance with the rules of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by R.E.G. Esite Esq, the learned counsel identified two issues for the determination of the appeal. They are:-
“(1) Whether the combined effect of the contents of Exhibits Rand S amount to admission of guilt by the Appellant of the allegation contained in Exhibit D that would not warrant a criminal trial of the Appellant before competent court to prove his guilt before punishing him administratively?
(2) Whether the Acting State Chairman of the Respondent had the constitutional right to set up the panel of inquiry into the allegations contained in Exhibit D upon which the National Executive Council (NEC) could take a decision on its findings?”
In the Respondent’s brief settled by Dr. C.Y.G. Adei Esq, learned counsel formulated three (3) issues for the determination of the appeal, namely;-
(1) Whether the learned trial Judge was right or wrong in dismissing the Plaintiff’s claim.
(2) Whether the Plaintiff is by the state of the pleadings and preponderance of evidence, entitled to judgment or was rightly dismissed.
(3) Whether the Plaintiff was given fair hearing.”
At the hearing of the appeal, learned counsel for the Appellant Chief R.E.O. Osite, Esq adopted the Appellant’s brief of argument dated and filed on the 12th/11/2001 and urged us to allow the appeal. Learned counsel for the Respondent Dr. C.Y.O Adei Esq adopted the Respondent’s brief filed on the 29/1/2002, and urged us to dismiss the appeal I have considered the issues as formulated by the respective counsel and it is my view that the Respondent’s issues Nos. 1 and 2 are one and the same thing as reference to right or wrong cannot be made without reference to the state of the pleadings and the evidence adduced and same can be subsumed into Appellant’s issue No. 1. Issue NO.3 as formulated by the Respondent counsel does not relate or arise from any of the grounds of appeal filed by the Appellant as none of the grounds raised the issue of fair hearing. It is now trite that a Respondent who has not cross appealed cannot formulate issues different from those formulated by the Appellant. Respondent’s issue NO.3 having not related to any of the grounds of appeal filed by the Appellant is therefore incompetent and is accordingly struckout. In the determination of the appeal, I will adopt the issue as formulated by the Appellant as it encapsulates all the complaints of the Appellant in the appeal.
Arguing issue 1, learned counsel for the Appellant submitted that the Respondent accused the Appellant of perpetrating fraud and financial embezzlement and constituted itself into a court and punished the Appellant vide Exhibit ‘L’ having found him guilty of fraud and financial embezzlement. It is submitted that Exhibit L the letter of dismissal accused the Appellant of the criminal offences of fraud and financial embezzlement and that the authority to adjudicate on these offences lie on the courts by virtue of Section 36 (4) of the 1999) Constitution. It is submitted that the Appellant’s oral evidence that these allegations of fraud and financial embezzlement were not reported to the police and/or tried by a competent court or tribunal was not rebutted by the Respondent. It is further submitted that the failure of the Respondent to report these criminal allegations to the police for proper investigation and possible prosecution before a competent court or tribunal but hurriedly finding him guilty and punishing him summarily is a violation of the constitutional right of the Appellant as provided for in Section 36 (i) of the 1999 Constitution of the Federal Republic of Nigeria. It is therefore submitted that the Appellant ought to have been first prosecuted in a competent court or tribunal for these offences before exercising the powers to punish him under the conditions of service. Reliance was placed on the following cases Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Denloye vs. Medical and Dental Practitioners Disciplinary Committee (1967) 1 All NLR 306 at 312 and Federal Civil Service Commission vs. Laoye (1989) 1 NWLR (Pt. 106) 652.
Learned counsel further submitted that Exhibits ‘R’ and ‘S’ read together do not amount to admission of the offences contained in Exhibit D. It is submitted that for the contents of a document to amount to an admission, the statement therein must be direct, positive, clear and unequivocal relying on the case of:- Narindex Trust Limited vs. Nigerian Intercontinental Merchant Bank Ltd (2001) 26 WRN 83 at 94. It is submitted that Exhibits ‘R’ and ‘S’ must comply with Section 28 (1) of the Evidence Act to form a binding admission. That in Exhibits ‘R’ and ‘S’, the Appellant denied Knowledge of the existence of current account number FA 188 with the Cooperative Bank. It is also the view of learned counsel that an account will be declared illegal by the Respondent if there is noncompliance with articles 10(ii) (c) of Exhibit ‘C’, the constitution of the Respondent. That it is not stated in Exhibit ‘D’ that Account Number SOC 45 is an illegal account. It is also submitted that the learned trial Judge was wrong in holding that Exhibits ‘R’ and ‘S’ read together amount to admission of the criminal allegations contained in Exhibit ‘D’. It is submitted that the Appellant was wrongfully and unconstitutionally dismissed by the Appellant. We were urged to resolve this issue in favour of the Appellant.
Arguing his issue No. one, learned counsel for the Respondent submitted that the Appellant having made an admission against interest vide Exhibits ‘R’ and ‘S’ upon which the learned trial Judge acted upon, the Appellant’s action was rightly dismissed by the learned trial Judge having based his decision on a sound reasoning ex aequo et bono and unperverted legal analysis based on the pleadings and the evidence by parties. He relied on the authority of; Seismograph Services (Nig) Ltd vs. Keke Ogbenekwek Eyuafe (1976) 9 & 10 SC 135 at 146.
Now the question that arises from arguments canvassed above is whether Exhibits ‘R’ and ‘S’ constitute admission of Exhibit ‘D’ by the Appellant and if the answer is in the positive, whether the Respondent was bound to dismiss him with reference to the criminal allegation concerned without reference to the police for possible investigation and prosecution before a court or tribunal of competent jurisdiction.
Exhibit ‘D’ before the trial court is a query to the Appellant by the Respondent for operating an illegal account in the name of the Respondent in respect of which he has been a co-signatory together with Mr. L.E Egbemhonkaye and one other person without the knowledge or approval of the Executive Council of the Respondent in respect of which he was called upon to explain his involvement. Exhibit ‘D’ was signed by the Chairman NUT, Bendel State wing.
In Exhibit ‘E’ which is the same as Exhibit ‘R’, the Appellant replied Exhibit ‘D’ in which he explained the extent of his involvement that the former Chief State Secretary Mr. L.E. Egbehonkhaye directed him that he should be a co-signatory to the account to enable him operate the office effectively. He stated further in Exhibit E from second paragraph as follows:-
“As a result of this claim, and the followed anxiety, I referred to the Union’s constitution article 14, sub-section vi (e) as it affects my office, and it reads thus:- “The Finance Officer shall carry out orders and duties assigned to him by the State Secretary”. Based on this constitutional provisions, I sought the advice of Messrs Alfred and Nwosu who were the senior members of staff of the Union at the time, and they advised me to cooperate with him as there was danger on my refusal.
Following this, I signed the forms he brought and on demand I gave him my passport photograph.
I never went to the bank one day.
On the signing of cheques, he had always impressed on me to sign blank cheques and this I have always done as an obedient servant. As at the time I signed the forms, no account was written on the form, so sincerely sir, I do not know the account number more so, as my signatory in all cases were made in advance. In being loyal and obedient to the dictates and directives of the Chief State Secretary, (Mr. L.E. Egbemhenkhaye) I took consideration, and relied fully on his long standing experience, his integrity and his profound commitment to the cause and goals of the NUT. I was more convinced that what I did was right, when he personally assured me that there was no cause for alarm and that it was all in the best interest of the smooth running of the union.
I submit most humbly sir, that in total ignorance as it would have happened to any of us in the office at the time, and without any premeditation to defraud the union or jeopardize my position in the position in the office.
I wish on this basis to plead for leniency and a fair consideration of my role in this whole episode.
Yours faithfully,
Chris. E. Eigbe
(P.E.O. Accounts)
After Exhibit E, Exhibit ‘F’ followed placing the Appellant on suspension pending investigation by the state wing executive council.
Thereafter dismissal from service followed vide Exhibit L. Exhibit L is hereby reproduced.
“NIGERIAN UNION OF TEACHERS
Our Ref: NUT/1663/5/120
Mr. C E Eigbe
44 Edo Street
off medical Stores Road
Benin City
Bendel State
28 January, 1991
FRAUD IN THE NUT BENDEL STATE WING: DISMISSAL FROM SERVICE
The Nigeria Union of Teachers (NUT) has been reviewing, with due seriousness, the role you played in perpetrating fraud and financial embezzlement in the Bendel State Wing of the Union within the period you served as the Finance Officer.
I am, therefore, directed to inform you that after a thorough consideration of the entire issue by the National Executive Council (NEC) your involvement was seen as a criminal violation of the relevant provisions of the Union’s Conditions of Service, and indeed, an act unexpected of your office and person. The National Executive Council does not deem you fit and proper to remain in the services of the Union any more.
Consequently, I am directed to convey to you, the decision of the National Executive Council of the Union to dismiss you from the service of the Union and you are hereby dismissed forthwith.
By an endorsement of this letter, the Bendel State wing of the NUT is being informed of this decision accordingly.
GARIEL O FALADE
SECRETARY GENERAL
CC: Chairman
NUT Bendel State Wing
The learned trial Judge found on Exhibits ‘R’ and ‘8’ at page 104 lines 16-29 of the records of appeal as follows:-
“In this connection, I am satisfied that Exhibits ‘R’ and ‘S’ both combine to constitute an admission of an act that amounts to a misconduct See Chapter 14; 8:41 of Exhibits ‘B’ and ‘V’, which includes misconduct whether or not in relation to the performance of his duties as one of the grounds for dismissal of Defendant’s officer.
Exhibit’s’ ‘R’ and ‘S’ were written in response to Exhibit ‘D’, in which the allegation was clearly spelt out. Plaintiff responded with Exhibit ‘R’ in which he agreed with the allegation, and disclosed how the account was formed. He then pleaded for leniency. I do not agree with Mr. Esekody when he argued that Exhibits ‘R’ and ‘S’ do not constitute admissions.
In the light of Exhibit ‘D’, I cannot see anything more damaging than Exhibits ‘R’ and ‘S’. The statements therein are positive and direct. They are also unequivocal. They admit doing what was alleged in Exhibit ‘D’
Exhibit ‘R’ as said earlier is the same as Exhibit ‘E’ reproduced in this judgment. Exhibit ‘S’ is as follows:-
44 Edo Street
Benin City.
25/6/90
The Secretary
NUT Investigation Panel
c/o Teachers House,
Benin City.
Dear Sir,
Operation of account:
I am writing as a follow up to my earlier letter dated 25/5/90 that I know nothing about Account FA 188 with Cooperative Account.
Rather my earlier reply to the chairman’s letter was in respect of account SOC 45 with the Cooperative Bank Benin City.
Yours faithfully,
Chris E. Eigbe
In Exhibits ‘R’ and ‘S’ the Appellant agreed that he and Mr. L.E. Egbemhonkaye jointly opened the illegal account with the co-operative Bank, Benin City. There is no doubt about it. I agree with the finding of the learned trial Judge that at the time the Appellant joined the said Mr. L.E. Egbemhakhaye to open the said account, he knew it was illegal and unauthorized, otherwise there would not have been any need to consult the Constitution of the Respondent Exhibit ‘C’ and other senior employees of the Respondent. An officer who acted in obedience to an instruction that is patently unlawful, a defence that yours obediently acted in obedience to his superior will not avail him. He cannot find a defence under Article 14 (vi) (e) of Exhibit ‘C’, the Respondent’s Constitution. The Appellant cannot in the circumstance be heard to say that he acted in obedience to an order from his superior officer.
On whether the contents of Exhibits ‘R’ and ‘S’ amounts to an admission in the legal sense .of the word, Blacks law Dictionary, Sixth Edition defines ‘Admission’ at page 47 as follows:-
“Confessions, concessions or voluntary acknowledgement made by a party, of the existence of certain facts more accurately regarded, they are statements by a party or someone identified with him in legal interest, of the existence of fact which is relevant to the cause of his adversary.”
Section 19 of the Evidence Act Cap 112 LFN 1990 defines admission as follows:-
“An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereafter mentioned.”
Section 20 of the Act classified the circumstances and provided in sub Section (1) that statement made by party to the proceedings; or by an agent to any such party whom the court regards in the circumstances of the case, as expressly or implied authorized by him to make them, are admissions. Admission therefore is a voluntary acknowledgment, made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. See Seimograph Service (Nig) Ltd vs. Chief Keke Ogbenekwek Eyuafe (supra) where the supreme court held that a statement oral or written (expressed or implied) made by a party to a civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. Where however, an admission is not based on personal knowledge of the matter of the facts admitted, such admission can hardly be of any value. Admission in this con cannot be termed as a confession which is admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime, where to qualify for qualify for its admissibility, it must be proved to be direct, positive, clear and unequivocal as contended by the Appellant’s counsel. In the instant appeal, examination of Exhibits ‘R’ and ‘S’ shows that the Appellant had acknowledged his involvement in the opening of the illegal account used to perpetrate fraud and embezzlement of the Respondents fund together with one Mr. L.E. Egbemhankhaye.
It is therefore my candid view that, Exhibits ‘R’ and ‘S’ amount to admission of the allegations contained in Exhibits ‘D’. I also found as a fact that the allegations contained in Exhibit ‘D’ ‘fraud’ and ’embezzlement’ constitutes a misconduct involving dishonesty bordering on criminality.
The question now is, whether the allegations against the Appellant being criminal in nature, the Respondent is entitled to dismiss the Appellant summarily without reference to the police for further investigation and possible prosecution before a competent court or Tribunal.
It has been contended that these complex allegations of fraud and financial embezzlement were not reported to the police and/or tried by a competent court or tribunal and the failure to report these criminal allegations to the police for proper investigation and possible prosecution before a competent court or tribunal but for the Respondent to punish him summarily is a violation of his constitutional right as provided for under Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria relying on the following cases; Garba vs. University of Maiduguri (supra) Denloye v. Medical and Dental Practitioners Disciplinary Committee (supra) and Federal Civil Service Commission vs. Laoye (supra).
The principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee is not an immutable principle. See Arinze vs. First Bank (Nig) Ltd (2000) 1 NWLR (Pt. 639) 78. The Supreme Court per Eso, JSC, held in Federal Civil Service Commission vs. Laoye (supra) at page 679 held as follows:-
“It is not difficult where the person so accused accepts his involvement in the acts complained of and no proof of the criminal charge against him would be required.”
In cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. In other words, to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence.
In the instant case, which is one of misconduct bordering on criminality, all that was required of the Respondent before summarily dismissing the Appellant was to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself.
The Appellant was confronted with the allegation vide Exhibit D. In Exhibits ‘R’ and ‘S’ the Appellant acknowledged satisfactorily his involvement in the operation of the illegal account. The Respondent was therefore right to summarily dismiss him. The conclusion reached by the learned trial Judge, that the Respondent’s decision to dismiss him without necessity of police investigation and possible prosecution before a competent court or tribunal is therefore impeccable. See Yusuf vs. UBN Ltd (1996) 6 NWLR (Pt. 457) 632; Arinze V. First Bank Nigeria Ltd (2004) 12 NWLR (Pt. 888) 663.
It is now well settled that in statutory employment, as well as in private employment, the employer can dismiss an employee where the accusations against such employee is of gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, nor is it required under Section 36 (1) of the 1999 Constitution that employee must be tried in a court of law. It was therefore erroneous as contended by the learned counsel for the Appellant in the instant case, that once crime is detected the employer cannot dismiss the employee unless he is tried and convicted in the first place. In the instant case, the Appellant admitted operating an illegal account and of fraud and embezzlement. It was not therefore necessary for the Respondent to initiate criminal prosecution before taking disciplinary measures against him by summarily dismissing him, where the Appellant’s misconduct undermined the relationship of confidence which should exist between him and his employer. See Arinze v. First bank Nigeria Ltd (2004) 12 NWLR (Pt. 888) 663; Federal Civil Service commission vs. Laoye (supra) Yusuf vs. Union Bank of Nigeria Ltd (1996) 6 NWLR (Pt. 457) 632.
Thus, prosecution of an employee before the law court is not sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct involving dishonesty bordering on criminality. Thus issue No.1 is therefore resolved against the Appellant.
Issue No.2 is whether the Acting State chairman of the Respondent had the constitutional right to set up the panel of inquiry into the allegation contained in Exhibit ‘D’ upon which the National Executive council (NEC) could take a decision on its findings?
It is submitted for the Appellant that by the combined effect of chapter I, Article 1.4 (f) of Exhibit ‘V’, the Respondent’s staff condition of service, (Exhibit ‘V’ is the same as Exhibit’ B’) and the contents of Exhibits ‘G’ and ‘J’ the Appellant was a senior staff of the Respondent. That, being so, the Responsibility of initiating disciplinary procedure against the Appellant is bestowed upon the Secretary General or the state Secretary as provided for in Chapter XIV Article 14.1 of Exhibit ‘V’.
It is submitted that contrary to Article 14.1 of Chapter ‘V’, the Acting State chairman referred this criminal allegation against the Appellant to a committee set up by the State Wing Executive council (SWEC) for investigation. It is submitted that the Acting State Chairman lacked the constitutional powers to refer the allegations against the Appellant to the committee set up by him or any other committee for that matter. It is further submitted that the committee set up by the State Wing Executive Council (SWEC) also lacked the constitutional powers to investigate the allegations contained in Exhibit ‘D’. It is further submitted that the National Executive Council was wrong in taking the decision to dismiss the Appellant based on the findings of the committee set up by the then Acting State Chairman. Reliance was placed on the following cases; Benjamin Leonard Macfoy v. United Africa Co. Ltd (2000) 15 WRN 185 at 194 and Psychiatric Hospital Management Board vs. Mrs. Doris Edosa (2001) 12 WRN 183 at 195-196.
It appears from the Respondent’s brief, there is no reply to the Appellant’s issue NO.2. What the Respondent did was to formulate his own issues for determination which issues are even outside the four grounds of appeal filed by the Appellant and argued them as such without reference to the Appellant’s issues for determination. By Order 6 Rule 4 (2) of the rules of this court, the Respondent shall answer all material points of substance contained in the Appellant’s brief and all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Failure to reply to an issue raised in the Appellant’s brief is tantamount to conceding the issues raised by the Appellant but not directly answered to by the Respondent. See Evarwodoke vs. University of Benin teaching Hospital Management Board (1993) 2 NWLR (Pt. 277) 590; What the Respondent did in the instant appeal was to formulate his own issues. A Respondent cannot formulate issues outside the grounds of appeal unless he files a cross appeal or a Respondent’s notice. In Idika & Ors v. Erisi & Ors (1988) 2 NWLR (PT. 79) 563, the Supreme Court held that a Respondent has no business, unless he cross appeals or at least serves a Respondent’s notice, framing issues outside the grounds of appeal filed by the Appellant. See Eze vs. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506; Ebo vs. Nigeria Television Authority (1996) 4 NWLR (Pt. 442) 314.
Be that as it may, in considering Appellant’s issue NO.2, reference must be made to Exhibit ‘C’ the Respondent’s constitution and Article 14.1 of Exhibit ‘V’ the staff conditions of service. Learned counsel for the Appellant placed reliance on Chapter I Article 4.1 of Exhibit ‘V’ Respondents staff condition of service and Exhibits ‘G’ and’ J’. Article 4.1 (f) of chapter I of Exhibit ‘V’ defines a senior staff to include all members of staff on Grade Levels 08 and above. Exhibits ‘G’ and ‘J’ show that the Appellant was a senior staff by virtue of his promotion in Exhibit ‘G’ as Senior Executive Officer II (Accounts) on Salary Grade Level 08 in 1983 and Senior Executive Officer I (Accounts) on Salary Grade Level 10 in 1986. In fact, the fact that the Appellant was a senior officer with the Respondent before his dismissal is not in dispute. Issues were not joined by the parties in this respect. Chapter XIV of Exhibit ‘V’ the Respondent’s conditions of service provides in Article 14.1 as follows:-
“The Secretary General/State Secretary shall be responsible for the overall discipline of members of staff. Matters which generate such gravity that could lead to reduction in rank, termination and dismissal affecting senior/intermediate officers shall be referred by the Secretary General/State Secretary to the Establishment Committee/Standing Committee for investigation and recommendation to the National Executive Council/State Wing Executive for decision and necessary action. Where the affected officer is dissatisfied with the decision taken, he has the right to appeal to the National Executive Council. But other matter effecting Senior/Intermediate Staff shall be treated by the Secretary General/State Secretary…
But where the Secretary General/State Secretary is Involved, the Establishment Committee/Standing Committee shall handle the matter. (The underlining is mine for emphasis)
Article 14 (IX) of Exhibit ‘C’ the Respondent’s constitution provides for a state wing standing committee and its functions and by Article 14 (xi) makes provision for relevant committees to be set up at the state level provided such committees do not include External Relations.
In the instant appeal, it is not in dispute that the State Secretary was jointly accused with the Appellant in perpetrating fraud and. Financial embezzlement. The learned trial Judge found as follows at page 105 lines 8- 18 as follows:-
“It was also argued that only the State Secretary could discipline the Plaintiff by the provisions of Exhibit ‘B’ staff conditions of service. The problem with this submission is that the then State Secretary was jointly accused with the plaintiff. In such a scenario, it would have been a mockery of the Defendant to rely on the State Secretary who procured the Plaintiff (according to his own evidence) to assist him in carrying out an illegal act, to discipline the plaintiff for the illegal act. This argument must be rejected and it is so rejected.”
What then would have happened in the instant case? Article 14.1 of Exhibit ‘V’ quoted above provides that where the Secretary General/State Secretary is involved, the Establishment/Standing Committee shall handle the matter. In the instant case, the matter involves the Appellant and the State Secretary and the State Wing Executive Council was competent to handle the matter. The State Chairman was right to set up the panel of inquiry into the allegations contained in Exhibit ‘D’, the State Secretary himself having been deeply involved in the accusation. He could not therefore be said to be the competent person to discipline the Appellant in the circumstances of this case.
On the whole, this appeal lacks merit and it is hereby accordingly dismissed. Each party is to bear its own cost.
STANLEY SHENKO ALAGOA J.C.A.: I read in draft the lead judgment just delivered by my brother Uwani Musa Abba Aji (JCA) and I completely agree with her reasoning and the conclusion reached. I however want to add this little bit of mine as a contribution. Appellant has submitted that the failure of the Respondent to report the criminal allegations against him to the police for proper investigation and possible prosecution before a competent court or tribunal and hurriedly finding him guilty and punishing him summarily is a violation of his constitutional right as provided for in section 36(1) of 1999 Constitution of the Federal Republic of Nigeria. He went further to submit that he ought to have been first prosecuted in a competent court or tribunal before the Respondent exercised any power to punish him. He has relied on a number of authorities namely GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR PART 18 page 550; DENLOYE V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1962) 1 All NLR 306 at 312; FEDERAL CIVIL SERVICE COMMISSIONER V. LAOYE (1989) 1 NWLR PART PAGE 652. It is this part of the judgment that I wish to comment on. The issue of fair hearing under our Constitution simply implies that before any final disciplinary action is taken against a person, he is first and foremost confronted with whatever allegations his accusers have against him and he is given a reasonable time to prepare for and present his defence either orally and or in a written form before his accusers. The query issued to the Appellant shows that he was given 48 hours to present a defence which he did in writing. Details of the allegations were contained in the query and the Appellant cannot claim he hadn’t a full briefing of what he was coming to meet and so the issue of a denial of fair hearing does not arise. On when dismissal of an employee does not amount to a denial of fair hearing see DAMISA V. UBA PLC (2005) 9 NWLR PART 931 page 526 at 536 per Alagoa JCA.
“Reference to a right to and denial of a fair hearing cannot be correct because there was first a suspension of the appellant by the respondent while further investigations into the gross negligence of the appellant was going on. Written correspondence was going on between them until the Appellant’s guilt was fully established leading to his dismissal from the services of the respondent bank. The appellant was given adequate opportunity to explain His own side of the story in writing which in itself Constituted fair hearing.”
The case of GARB A V. UNIVERSITY OF MAIDUGURI (Supra) should be carefully read for it to be fully understood. Although from a cursory reading the apex court appears to have decided that only a court of law or judicial tribunal is constitutionally competent to hear and determine charges of a criminal nature for example and as in this case against students of a University and not an internal or inhouse investigating panel, the same court frowned at trivial or minor offences which can be dealt with internally being taken outside for prosecution in a court of law. Hear OPUTA JSC on this issue at pages 557 -558 of that report. The erudite jurist said this much. “Let us take the example given by Chief Williams S.A.N. of a student slapping a Vice Chancellor – there it would be obviously apparent to any reasonable person that such a student is guilty of misconduct. There again it will appear to the Vice Chancellor from his own personal knowledge and experience of what the student did. Here the courts may not intervene and here again section 33 of the 1979 Constitution may not be successfully invoked.”
(Underlining mine for emphasis). What I understand this to mean is that sometimes the nature of the criminality involved is so visible and so apparent that an employer may chose to address the issue through some internal investigating machinery and taking decisions against an erring employee rather than go the whole hog of pressing charges that are associated with criminal prosecution in court. There should be nothing wrong with that so long as the principles of fair hearing which I enunciated earlier in this write up are strictly adhered to. What if the employee has admitted his involvement in the act of criminality levelled against him. Would there still be the need to press charges in a court of law? Exhibits “R” and “S” show that the Appellant had acknowledged his involvement in the opening of the illegal account used to perpetrate fraud and embezzlement of the Respondent’s fund with one Mr. L.B. Egbemhankhaye. In such a case of admission of guilt to a crime no proof of the criminal charge against him would be required. See FEDERAL CIVIL SERVICE COMMISSION V. LAOYE (Supra) page 679 paragraphs F-H. Thus criminal prosecution in a law court is not a must. The question should be whether the principles of natural justice and fair hearing have been at play and strictly adhered to. In LAOYE’S case these were referred to as the “twin pillars of Audi alteram partem and Nemo judex in causa sua” – an accused must be given an opportunity of being heard and a man shall not be a Judge over a matter in which he is an interested party. See page 689 paragraphs B-C. See also the following cases – ADEDEJI V. POLICE SERVICE COMMISSION (1967) All NLR 67, KANDA V. GOVERNMENT OF MALAYA (1962) D.C. 322; BUZUGBE V. CIVIL SERVICE COMMISSION (1984) 7 SC. 19; AIYETAN V. NIFOR (1987) 3 NWLR PART 59 page 48; OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR PART 9 page 578; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR PART 34 page 162. I think every attempt was made by the Appellant at being fair.
It is for these reasons and the fuller reasons contained in the lead judgment of my brother Uwani Musa Abba Aji which was very well considered that I too dismiss the appeal and abide by the order that each party is to bear its own cost.
GEORGE OLADENIDE SHOREMI, J.C.A.: I have read in advance the lead judgment of my learned brother, ABBA AJI, J.C.A the issue involved have been thoroughly dealt with in the lead judgment. By way of emphasis, I with to add that the counsel to the appellant vigorously attacked the findings of the learned trial Judge when he said and I quote.
“I do not agree with Mr. Eso Kadi when he argued that Exhibits R & S do not constitute admission. In the light of exhibit D I can not see any more damaging than Exhibits ‘R & S’ The Statements therein are positive and direct. They are also unequivocal. They admit doing what was alleged in Exhibit D.”
Let me quote Exhibit D as contained on page 107 of the record.
“NIGERIA UNION OF TEACHERS
BENDEL STATE WING
May 21 1990
OUR REF NO. NUT/BEBST/06/50
Mr. Chris. E. Eigbe
NUT Secretariat
Bendel State Wing
P.M.B.1055
Benin City.
QUERY OPERATION OF AN ILLEGAL ACCOUNT
An investigation carried out by this State wing has revealed that you have been operating an illegal current account number PA188 with the Co-operative Bank, Akpakpava Street Branch, Benin City, in the name of the Nigeria Union of Teachers, Bendel State wing.
It was also found that you have been a co-signatory to the said account in conjunction with Mr. L.E. Egbemhenkhaye and one other person unknown to the Union, without the approval or knowledge of the Executive council, and contrary to the provisions of the constitution of the Nigeria Union of Teachers.
In keeping with the provisions of the constitution (Article 31 Section 1(h)(i)G) you are requested to explain your involvement in this deal and show cause why you should not be summarily disciplined for this act of gross misconduct.
Your reply should be delivered to reach undersigned within forty-eight hours, and should be in triplicates copies.
(Sgd.) (J.F.E. EDEWOR (RFV)
CHAIRMAN
NUT BENDEL STATE WING BENIN CITY.”
In reply to the Query the appellant have this as his answer and I quote.
“Following this, I signed the forms he brought and on demand I gave him my passport photograph. I never went to the bank one day.
On the signing of cheques, he had a always impressed on me to sign blank cheques and this I have always done as an obedient servant. As at the time I signed the forms, no account number was written on the form, so sincerely sir, I do not know the account number more so, as my signatory in all cases were made in advance.
In being loyal and obedient to the dictates and directives of the Chief State Secretary, (Mr. L.E. Agbemhonkhaye) I took into consideration, and relied fully on his long standing experience, his integrity and his profound commitment to the cause and goals of the NUT. I was more convinced that I did was right, when he personally assured me that there was no cause for alarm and that it was all in the best interest of smooth running of the union.
I submit most humbly sir, that in total ignorance as it would have happened to any of us in the office at the time, and without any premeditation to defraud the union or jeopardize my position in the office.
I wish on this basis to plead for leniency and a fair consideration of my role in this whole episode.
Yours faithfully,
(Sgd.) Chris. E. Eigbe,
(P.E.O. Accounts).”
That was Exhibit “R”.
In Exhibit She agreed that Exhibit R was a reply to/his query as to Account SOY 45 with the Co-operative bank Benin City. It was the argument of the appellant that Exhibit R & S are not admission of the alleged commission of the offence. In his submission he said Exhibits R & S read to together do not amount to admission pf the offence contained in Exhibit D.
It is trite Law that for contents of a document to amount to an admission, the statement therein must be direct, positive, clear and unequivocal.
See NARINDEX TRUST LTD. AND ANOTHER V. NIG. INTERCONTINENTAL MERCHANT BANK LTD AND ANOTHER (2001) 26 WRN 83 AT 94.
An admission is an express or implied concession by a person of the truth of an alleged act. It is generally presumed that no man would declare anything against himself unless it was true. The admission of the appellant became credible when he pleaded for leniency.
A statement oral or written (expressed or implied) made by a party to a civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him in the proceedings as evidence against him of the truth of the facts ascertained in the statement.See SEIMOGRAPH SERVICE NIG. LTD. V. CHIEF KEKE OGBENEGWEKE (1976) 9 -10 SC 135 AT 146.
I agree with the learned trial Judge that the admission in exhibits “R” & “S” are positive and direct. They are also unequivocal.
The appellant also complained that he was not given a fair hearing.
A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given the opportunity to be heard, the hearing can not qualify as fair hearing. The appellant was in my view given fair hearing and he defended himself by admitting the alleged mis-deed.
For these and the fuller reasons contained in the lead judgment of my learned brother, I find the appeal unmeritorious and it is hereby dismissed all the grounds having failed. I also abide with consequential orders and cost.
Appearances
Chief R.E.O. Esite EsqFor Appellant
AND
Dr. C.Y.O. Adei EsqFor Respondent
