FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA V. DANJUMA MAIWUYA & ORS.
(2010)LCN/3921(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of July, 2010
RATIO
TERMINATION OF APPOINTMENT OF AN EMPLOYEE; WHETHER WHERE THERE IS A NOTICE OF DISMISSAL OR TERMINATION OF APPOINTMENT OF AN EMPLOYEE BY THE EMPLOYER, IT WILL NOT BE NECESSARY FOR THE EMPLOYER TO PROVE THE REASON STATED IN THE NOTICE
In Ihezukwu vs. University of Jos (1990) 4 NWLR Pt. 146 Pg 598, the Supreme Court per Wali JSC held that – “Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reason stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis. (emphasis mine)PER UZO NDUKWE-ANYANWU, J.C.A.
THE LEGAL STATUS OF PUBLIC SERVANTS; WHETHER PUBLIC SERVANTS CAN BE PROPERLY OR LEGALLY REMOVED FROM THEIR EMPLOYMENT WITHOUT STRICT ADHERENCE TO THE CIVIL SERVICES RULES;
The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. They cannot therefore be properly or legally removed from their employment without strict adherence to the Civil Service Rules. Okocha Vs. C.S.C Edo State (2004) 3 NWLR Pt 861 Pg 494. A public officer can be dismissed only if the following procedure is followed: (a) The officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified, which day must allow a reasonable interval for the purpose, any ground upon which he relies to exculpate himself; (b) The matter shall be investigated by the appropriate authority with the aid of the head of the officer’s department, and such other officer or officers as the appropriate authority may appoint; (c) If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses; (d) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto; (e) If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him, and (f) If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. – Rule 04107 of the Civil Service Rules – Iderima v. R.S.C.S.C (2002) 1 NWLR (Pt. 749) 715, CA. (3) Notwithstanding the above statement of law, the appropriate authority may dismiss or remove a public officer summarily from his office, or retire or require the public officer to compulsorily retire from service, if satisfied that” (a) It is necessary to do so for improvements in the organization to which the officer belongs;(b) By reason of age;
(c) Ill-health
(d) Where the officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or(e) General conduct of the public officer has been such that his continued employment would not be in the public interest. – Section 1 (1) of the Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation of Nigeria, 1990. – Tyonzughui v. A-G, Benue (2005) 5 NWLR (Pt. 918) 226 CA. – N.E.P.A. v. Ososanya (2004) 5 NWLR (Pt. 865) 601 SC. – Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443 SCPER UZO NDUKWE-ANYANWU, J.C.A.
POSITION OF THE LAW ON THE DISMISSAL OF A PUBLIC OFFICER ON A PENSIONABLE APPOINTMENT ON GROUNDS OF AN ALLEGATION OF SERIOUS MISCONDUCT
A public officer on a pensionable appointment against whom allegations of serious misconduct such as fraud has been alleged like in the Respondents’ case violence and gross misconduct cannot be dismissed with or without a month’s salary in lieu of notice without being heard. Federal Capital Development Authority Vs. Naibi (1990) 3 NWLR Pt 138 Pg 270. PER UZO NDUKWE-ANYANWU, J.C.A.
DISMISSAL OF AN EMPLOYEE ON GROUNDS OF MISCONDUCT; WHETHER ALL THAT THE EMPLOYER NEEDS TO ESTABLISH TO JUSTIFY HIS ACTION IS TO SHOW THAT THE ALLEGATION WAS DISCLOSED TO THE EMPLOYEE
In the dismissal or termination of the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the Rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, or that the employee accepted that he committed the act after investigation. University of Calabar Vs. Essien (1996) 10 NWLR Pt 477 Pg 225, Olatunboson Vs. NISER Council (1988) 3 NWLR Pt 80 Pg 25,Yusuf Vs U.B.N (1996) 36 NWLR Pt 457 Pg 632. PER UZO NDUKWE-ANYANWU, J.C.A.
UZO NDUKWE-ANYANWU, J.C.A.:(Delivering the Leading Judgment) This is an appeal against the judgment of the Federal High Court Yola. The Respondents in this appeal were the Plaintiffs in the Court below and they claimed the following reliefs jointly and severally:
(a) A declaration that the purported dismissal of he Plaintiffs by the Defendants was unconstitutional wrongful, illegal, null and void and of no legal effect whatsoever.
(b) A declaration that the Plaintiffs dismissal was done in gross violation of their right to fair hearing and the rules of Natural Justice as the Defendants were accusers, prosecutors and judges in their own cause.
(c) A declaration that the plaintiffs who are a permanent and pensionable staff of the Defendants in view of the obvious breach of the rules of natural justice and fairness are still in the service of the Defendants with unbroken record of service from the date of dismissal up to date.
(d) A declaration that the Plaintiffs are entitled to the payment of their outstanding salaries, allowances and benefits accruable to them as the result of their appointment and clean records from the date of the illegal dismissal up to the date of delivery of judgment and thereafter continue to enjoy their regular salaries.
Pleadings were exchanged by the parties and after the trial, a considered judgment was delivered on 27th July, 1999.
The Defendant/Appellant, being dissatisfied filed their notice and 5 grounds of appeal.
The learned counsel to the Appellants E.O. Odo settled their brief. In it he articulated 4 issues for determination as follows:
(1) Whether the dismissal of the Plaintiffs from the service of the first Defendant was not right in view of Exhibits A, F and H and the findings of the trial court.
(2) Whether the trial Judge was right in not considering the evidence of DW1 relating to the security report on the Non-Academic Staff Union (NASU) Congress of 12th June 1996.
(3) Whether the trial Judge was right in granting excessive monetary reliefs to the plaintiffs especially as the claims were not established by evidence before the court,,
(4) Whether the trial Judge was right in not stating categorically which of the Defendants will be responsible for paying the monetary reliefs granted to the plaintiffs.
The Plaintiffs/Respondents in their brief settled by M.B. Sawa formulated 3 issues for determination as follows:
(i) Whether or not the learned trial Judge was right in holding for the plaintiffs (Respondents).
(ii) Whether or not the learned trial Judge was right in law in awarding the reliefs set out in his judgment to the plaintiffs (Respondents).
(iii) Whether or not the learned trial Judge was duty bound by law to state which of the Defendants (Appellants) was to pay the judgment sum.
The issues articulated by both parties capture the real essence of the issues however I will subsume them into two issues for better understanding.
(1) Whether the trial Judge was right in holding that the dismissal of the Respondents was unlawful in the light of the evidence of DW1 relating to the security report on the NASU Congress of 12th June, 1996.
(2) Whether or not the award of N1 million was excessive and against which of the Appellants.
ISSUE ONE
The learned counsel for the Appellants submitted that Exhibits A, F and H which are the letters of employment of all the Respondents were complied with. The letters stated inter alia that:
“in the event of willful misconduct on your part the University may terminate the appointment forthwith without notice or salary in lieu of notice.”
Counsel referred the court to the findings of the trial Judge:
“That the conduct of the NASU Congress of 12th June 19996 in the Campus of the 1st Defendant was demonstrative of violence, hooliganism, vandalism, barbarism, and same must be condemned without vehemence if the Federal University of Technology Yola community is to lay claim to civilization and respect for constituted authority.”
The trial Judge also found that –
“the NASU members as a whole committed acts of violence and gross misconduct when they threw stones at their Vice Chancellor, tore his gown and broke glass doors and windows.”
Counsel submitted that in view of the above finding of the trial Judge, the Appellants were justified in dispensing with the services of the Respondents as they were members of NASU. Layade Vs. Panalpina (1996) 7 SCNJ Pg.1, Fakuade Vs. O.A.U. (1993) 6 SCNJ Pt 11 Pg 35 where the Court per Kutigi JSC held:
“A master can terminate the contract of employment with his servant at anytime and for any reason or for no reason at all provided the terms of contract of service between them are complied with.”
In Ihezukwu vs. University of Jos (1990) 4 NWLR Pt. 146 Pg 598, the Supreme Court per Wali JSC held that –
“Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reason stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis. (emphasis mine)
Counsel submitted further that the Appellants have shown that the Respondents were dismissed in accordance with their contract of employment but has gone further to as establish the reasons for the dismissal.
Counsel urged the Court to hold that the dismissal of the Respondent was in accordance with their contract of employment.
Counsel also submitted that the trial Judge did not fully advert his mind to the evidence of DW1 and the security report of that day. Counsel submitted, that the Appellants dismissed the Respondents because of their willful misconduct of that day according to their term and conditions of service Exhibits A, F, and H which read in part;
“in the event of willful misconduct on your part, the University may terminate the appointment forthwith without notice or salary in lieu of notice.”
Counsel submitted that the dismissal of the Respondents was done according to the terms of their contract and urged the Court to so hold. Ihezukwu Vs. University of Jos (supra) and Saggy Vs. Safure (2000) 4 SCNJ Pg 385.
In reply the Respondents’ learned counsel submitted that the trial Judge took into consideration the terms of their contract and the evidence of all the witnesses before drawing its conclusions. Counsel submitted that what was in dispute was whether the dismissal of the Respondents was done m accordance with their conditions of service and in accordance with the rules of natural justice. Counsel submitted that the Appellants were in breach of the terms of the contract of employment. Appellants also breached the principles of fair hearing during the investigative panel’s investigation into the NASU crisis of 12th June 1996. Moreover there was an allegation of
acts of violence and gross misconduct against the Respondents as in Exhibits D, G and L i.e letters of dismissal. Counsel argued that there was a clear distinction between “termination” as referred to in Exhibits A, F, and H and dismissal as used in Exhibits D, G and L Irem Vs. ODC (1960) 5 FSC Pg 24.
Counsel submitted that the employment of the Respondents became permanent and as such subject to the regulation for conditions of service of junior staff. A breach of which is unlawful. See Layade Vs. Panalpina (supra) Fakuade Vs. O.A.U (supra) Ihezukwu Vs. University of Jos (supra).
These cases clearly stated that termination or dismissal in cases of employment must be done according to terms or conditions of employment.
Counsel also submitted that the trial Judge considered the evidence of DW1 in full. There was no where that he implicated any of the 3 Respondents as having committed the acts of violence and gross misconduct. The words “Dr Sajo we respect you get away” said by the 2nd Respondent cannot amount to violence and gross misconduct. This was the finding of the trial Judge. None of the 3 Respondents were indicted in the evidence elicited during trial.
Counsel submitted further that some of the members of the investigative panel were also members of the governing council that were held hostage. The trial Judge held that it breached the principle of Nemo judex in causa sua.
Counsel urged the Court to resolve this issue in favour of the Respondents.
As it was rightly pointed out by the learned counsel to the Respondents, the main issue in this case is whether the dismissal of the Respondents was done in accordance to their conditions of service and in accordance with the rules of natural justice.
The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. They cannot therefore be properly or legally removed from their employment without strict adherence to the Civil Service Rules. Okocha Vs. C.S.C Edo State (2004) 3 NWLR Pt 861 Pg 494.
A public officer can be dismissed only if the following procedure is followed:
(a) The officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified, which day must allow a reasonable interval for the purpose, any ground upon which he relies to exculpate himself;
(b) The matter shall be investigated by the appropriate authority with the aid of the head of the officer’s department, and such other officer or officers as the appropriate authority may appoint; (c) If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;
(d) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;
(e) If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him, and
(f) If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly.
– Rule 04107 of the Civil Service Rules
– Iderima v. R.S.C.S.C (2002) 1 NWLR (Pt. 749) 715, CA.
(3) Notwithstanding the above statement of law, the appropriate authority may dismiss or remove a public officer summarily from his office, or retire or require the public officer to compulsorily retire from service, if satisfied that”
(a) It is necessary to do so for improvements in the organization to which the officer belongs;
(b) By reason of age;
(c) Ill-health
(d) Where the officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or
(e) General conduct of the public officer has been such that his continued employment would not be in the public interest.
– Section 1 (1) of the Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation of Nigeria, 1990.
– Tyonzughui v. A-G, Benue (2005) 5 NWLR (Pt. 918) 226 CA.
– N.E.P.A. v. Ososanya (2004) 5 NWLR (Pt. 865) 601 SC.
– Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443 SC
A public officer on a pensionable appointment against whom allegations of serious misconduct such as fraud has been alleged like in the Respondents’ case violence and gross misconduct cannot be dismissed with or without a month’s salary in lieu of notice without being heard. Federal Capital Development Authority Vs. Naibi (1990) 3 NWLR Pt 138 Pg 270.
In the instant case, all the members of NASU in the University staged a demonstration demanding for their rights. It must be agreed it went out of hand because, council members were manhandled, the Vice Chancellor’s gown was torn, stones were thrown at council members, windows and doors were broken. Infact council members were held hostage by NASU members until police officers came and dispersed them with tear gas and escorted council members to safety.
DW 1 in his evidence did not say that the Respondents were the ones who did any specific act as regards the mayhem of 12th June 1996.
In Exhibits D, G and L – dismissal letters, the management stated inter alia reasons for the dismissal i.e … “following acts of violence and gross misconduct exhibited on the 12th June 1996 at the University.”
This reason is already an allegation of criminal acts of violence and misconduct.
The law is that a public officer against whom such allegation of serious misconduct is laid, cannot be removed without being heard. In the instant case, there was an investigative panel set up to investigate the 12th June 1996 incident in the University. This Panel was purely investigative.
It is not proper for an employer to remove an employee on the basis of the report of an investigative panel only. The employer should take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. State Civil Service Commission Vs. Buzuqbe (1984) 7 SC Pg 19.
An employer must follow the procedure laid down by law. Where such a procedure is violated, an employer’s order of dismissal would be inoperative and void. Punjab National Bank Vs. Their Workmen (1959) 1 LLJ 666.
An employee’s wrong doing must be specific and he is entitled to a formal notice of such wrong doing and a hearing on that specific Act. Aiyetan Vs. Nigeria Inst. For Oil Palm Research (1987) 3 NWLR Pt 59 Pg 48, Adeniyi Vs. Governing Council. Yabatech (1993) 6 NWLR Pt 300 Pg 426,
An employee who is accused of misconduct is entitled to call his witnesses if he had any and they must be heard. Also part of the requirement is that an employee should know the full case against him. This means that he should be present when witnesses are testifying against him. If this procedure is not adopted it would amount to a denial of natural justice. Nze Vs. N.P.A. (1997) 11 NWLR Pt 528 Pg 210. NEPA Vs. Ango (2001) 17 WRN Pg 142.
Also an employee who is accused of wrong doing must be given adequate time to prepare his defence. Time to read through his papers, get his witnesses and employ the services of a legal practitioner if need be.
It therefore presupposes that an employer who intends to dismiss an employee for wrongdoing must accord him the basic principles of law i.e audi alterem partem and nemo dat in causa sua. In the instant case, the Respondents were dismissed with the report of a mere investigative panel. They were just invited for interviews vide Exhibits E and El. The Respondents were not formally accused of any wrongdoing neither were they accorded a hearing of any sort.
More over some members of the investigative panel are members of the governing council who were supposedly manhandled. Where a panel is set up to inquire into the employee’s misconduct, the mind of the adjudicator must be free so that there is no possible element of bias. Bias is evident where it is clear that a member of the panel has some interest in the matter such as friendship or foreknowledge of the facts of the case which may raise reasonable doubt as to his ability to be fair. Aiaoro vs. University of Lagos (1979) 10 – 12 CCHCJ Pg 9.
In the dismissal or termination of the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the Rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, or that the employee accepted that he committed the act after investigation.
University of Calabar Vs. Essien (1996) 10 NWLR Pt 477 Pg 225,
Olatunboson Vs. NISER Council (1988) 3 NWLR Pt 80 Pg 25,
Yusuf Vs U.B.N (1996) 36 NWLR Pt 457 Pg 632.
From the foregoing it is clear that the Appellants breached the laid down rules of natural justice. The Respondents were all dismissed following the report of an investigative panel. There was no disciplinary committee to took into the report of the investigative panel. There was no disciplinary committee: the Respondents were not specifically given a formal notice of their wrongdoing. There was therefore no hearing to afford, the Respondents an opportunity to answer to the charge of wrongdoing against them. They also were not given an opportunity to defend themselves by calling witnesses or utilizing the services of a legal practitioner where necessary.
It will therefore be correct to say that their fundamental right of fair hearing was totally breached. The law principles of nemo dat in causa sua and audi alterem partem were consequently breached.
Where such a breach occurs, the Court is left with no other alternative remedy than to declare the dismissal null and void and of no effect. Issue one therefore is resolved against the Appellants. The Court has found that the dismissal of the Respondents was unlawful and as such issue two on damages is no longer a live issue. There is no question of damages for unlawful dismissal. This issue also fails as well as the issue of who pays the damages awarded by the trial Court.
This appeal is unmeritorious and is therefore dismissed.
The Respondents who were permanent and pensionable staff are still in the service of the Appellants with unbroken record of service from the date of their dismissal up to the date of this judgment.
The Respondents are entitled to the payment of their outstanding salaries, allowances and benefits accruable to them during this period of dismissal and litigation. The award of N1 million damages is therefore set aside.
Cost of N80,000.00 is awarded against the Appellants in favour of the Respondents.
BODE RHODES-VIVOUR, J.C.A: I have had the advantage of reading in draft the leading judgment prepared by Ndukwe-Anvanwu JCA. I agree with the conclusions therein that the appeal is unmeritorious. I abide by the directives and endorse the order on costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother NDUKWE-ANYANWU just delivered and I agree with his reasoning and conclusions reached thereat. I also dismiss the appeal as it is without any merit. I abide by the orders made.
Appearances
E.O. Odo Esq.;
O.C. Wamaghinna Esq.,For Appellant
AND
Augustine Sambo EsqFor Respondent
