JOHN HOLT PLC v. MR. ECHEZONA NZERIBE
(2018)LCN/11819(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/A/656/2016
RATIO
CONTRACT: WRONGFUL DISMISSAL OF EMPLOYEMENT
“In an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of contract of employment and in what manner the said terms were breached by the employer. See Angel Spinning & Dyeing Ltd Vs Ajah (2000) 13 NWLR (part 685) 532 and U.B.A Plc Vs Oranuba (2014) 2 NWLR (part 1390) 1. It is settled law that in a contract of employment between a master and a servant without statutory flavour as in the instant case, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason – Olatunbosun vs Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (part 80) 25. See also Olaniyan Vs University of Lagos (1985) 2 NWLR (part 9) 599 and Oforishe Vs N.G.C. Ltd (2018) 2 NWLR (part 1602) 35 at 41 SC. The master must in addition give the servant a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria.” PER TANI YUSUF HASSAN, J.C.A.
FUNDAMENTAL RIGHT: PRINCIPLE OF FAIR HEARING
“On the application of principles of fair hearing, the Supreme Court at page 415 of the case observed: “Where a body, whether judicial quasi – judicial, administrative or executive in inception acts judicially in the sense that it is to determine the civil right and obligations of a person or to find him guilty or liable to a fault, then he must be given a hearing before the issue can be property decided. That is the intendment of Section 33(1) of the 1979 Constitution and is also the essence of fair hearing as a Constitutional right. In such cases, the hearing body must be seen to have observed all the implications and attributes of fair hearing.”” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
JOHN HOLT PLC Appellant(s)
AND
MR. ECHEZONA NZERIBE Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the National Industrial Court of Nigeria Abuja delivered on the 13th day of May, 2016 in Suit No.NICN/ABJ/66/2013 by Hon, Justice P. O. Lifu JP.
The Respondent as claimant at the Lower Court claims against the appellant as defendant, as follows:
a) A declaration that the indefinite suspension slammed on the claimant on the 3rd day of May, 2012 is unlawful and act done is malafide and his subsequent dismissal during the pendency of this Suit.
b) An order of Court commanding the Defendant to immediately reinstate the claimant and lifting the suspension against him and his summary dismissal.
c) An order commanding the Defendant to pay the claimant all his remunerations, allowances and arrears of salaries from the date of his suspension till date of this judgment and the subsequent dismissal.
d) An order commanding the Defendants to pay the sum of N50,000,000.00 (Fifty Million Naira) only as exemplary and punitive damages.
e) An order commanding the Defendant to pay the sum of N2,000,000.00k (Two Million Naira) only being the costs of Legal fees.
In response, the defendant/appellant filed its statement of defence and counter-claimed against the claimant/respondent as follows:
1) A declaration that the 150 KVA and 2 x 27 KV ASP now missing from the premises of the counter/claimant company without trace and/or proper accountability is as a result of the misconduct of the Defendant to the Plaintiff/Defendant to counter claim.
2) An order of Court for the Plaintiff/Defendant to counter/claimant to pay the sum of N9,000,000,00 (Nine million naira) only being the value of the missing generators.
3) N1,000,000.00 (one million naira) only being the costs of legal fees.
The claimant/respondent filed a defence to the counter claim on 11th of June, 2014.
After the trial and adoption of written addresses by the parties the trial Court entered judgment in favour of the claimant/respondent.
Aggrieved with the judgment, the appellant appealed to this Court. The Notice of appeal dated 4th day of May, 2017 was filed on the 13th of November, 2017 and deemed filed on 29th January, 2018. The Notice of appeal contained ten grounds of appeal with their particulars and relief sought.
Briefly the facts of the case are that the respondent was the Area Manager of the appellant in charge of sales in the North. His duties include charge of sales, supervision of branches under his control, ensuring security of the company’s stock and other assets in his care as well as ensuring the prompt preparation of weekly KPI reports which is a primary assessment in terms of sales refund or request of stocks in a particular branch at any given week in the month.
The allegation against the respondent is that he colluded with the Branch Manager of Abuja called Mr. Mohammed to sell three generators of the appellant’s Company without remitting the money to the appellant. That no individual is allowed to sell generator without notifying the other or the head office. The generators was discovered missing in December, 2011 but the respondent did not bring it to the attention of the appellant or reflect same in his KPI weekly or monthly report.
The Respondent was said to arrange a branch meeting as contained in Exhibit ENo2 and deliberately left Mr. Chukwurah the sale Manager who sold one of the 150 KVA generator and gave the money to the branch Manager Mohammed Aliyu who failed to remit same to the appellant’s company. The purpose of the meeting was said to make Mohammed to accept liability of the missing generators and return the money later.
In May, 2012, the respondent was said to have started sending emails for permission to get the police to arrest Mohammed in order to cover up the fraud, which if he was not part of the fraud, he would not have waited till May, 2012 to ask for permission for the branch Manager, Mohammed to be arrested. The missing generators caused the respondent?s suspension and eventual dismissal by the appellant. The respondent instituted an action against the appellants at the Lower Court and won the case, which gave rise to this appeal.
The appellant’s brief dated 13th day of May, 2016 was filed on the 2nd of May, 2017 and deemed properly filed on the 29th of January, 2018. Eight issues were formulated therein for determination as follows:
1) “Whether the Trial Judge was right to assume jurisdiction when he was aware that the contractual agreement between the parties contained Arbitration clause.”
2) “Whether the Trial Judge was right to interpret the Arbitration clause when he held that the Appellant breached the terms of agreement as contained in the Arbitration clause.”
3) “Whether the Trial Judge was right in law to hold that the Respondent’s letter of suspension and subsequent dismissal are wrongful vis-a-vis the weight of evidence before the Court showed otherwise.”
4) “Whether the Trial Judge was right to convert the dismissal of the Respondent to termination and in awarding the Respondent all benefits and privileges under the category of those terminated.”
5) “Whether the Trial Judge is right in interpreting Exhibit EN03 which is the minutes of the Branch meeting without placing EN05 side by side whether there was connivance and collusion on the part of the Appellant for refusing/failing to report the outcome of the purported meeting to the management until three(3) weeks after the meeting when he started sending endless emails.”
6) “Whether the Trial Judge was right in law in interpreting the Human Resource Manual in Exhibit 02 to conclude that the Respondent’s conduct does not deserve dismissal as no word tallied with the Respondent’s conduct”,
7) “Whether the Trial Judge was right in law not to make any pronouncement on the counter claim of the Appellant.”
8) “Whether the Judgment of the Trial Judge ought not to be set aside for his failure to carry out a dispassionate evaluation of the evidence adduced by the Appellant in this case.
The Respondent’s brief filed on the 28th day of March, 2018 was deemed properly filed on the 3rd day of May, 2018.
In it, three issues were distilled for determination as follows:
i) “Whether the Court was right in interpreting Exhibit EN15 the service Agreement between the parties for the purpose of the just determination of the disputes between them.”
ii) Whether the Appellant has been able to justify the reason given for the suspension and subsequent summary dismissal of the Respondent and whether from the totality of evidence adduced the Lower Court was right in its judgment.”
iii) Whether the trial Court was right in holding in favour of the Respondent when he urged the Court to grant the claimants relief and dismiss the counter-claim of Appellant/Defendant.”
The appellant’s reply brief was dated and filed on the 10th of April, 2018.
An issue for determination must be concise and devoid of irrelevant complexities and frivolities and must be such as to ease the comprehension of matters to be adjudicated upon by the Court. An issue for determination should not consist of multiple question or two different issues. See Unity Bank Plc Vs Olatunji (2015) 5 NWLR (part 1452) 203 at 219; Uwaifo Vs Uwaifo (2005) 3 NWLR (part 913) 479 and Ezeugo Vs State (2013) 9 NWLR (part 1360) 508.
In the instant case, the issues formulated by the appellant consisted of multiple questions and therefore lacked the distinctive qualifies of well crafted issues for determination.
An issue for determination should not comprise of other issues as in the instant case. It should not be a composition of two different issues. See Ikare Community Bank (Nig.) Ltd Vs Ademuwagun (2005) 7 NWLR (Part 924) 275 and Iloabuchi Vs Ebigbo (2000) 8 NWLR (Part 668) 197. Learned Counsel for both parties did not indicate which issue relates to which ground of appeal.
Reading through the record of appeal and the respective briefs of argument of the parties, it is my view that there is only one issue for determination in this appeal.
“Whether the lower Court was right when it held that the suspension and subsequent summary dismissal of the respondent by the appellant are wrongful.”
The contention of the appellant is that the trial Court was wrong to have interpreted the content of the Arbitration clause, an issue the judge raised suo motu when none of the parties raised the issue of Arbitration before the Court.
That it was as a result of the interpretation of the Arbitration clause that the trial judge came to a conclusion that the appellant breached its agreement with the respondent which occasioned a miscarriage of justice. Relying on the case of Dan Musa vs. Lazoyetan (1972) 6 SC 90, it is submitted that where a Court raised an issue suo motu, the Court would allow both parties to address it before arriving at its conclusion.
On the respondent’s suspension and subsequent summary dismissal, learned counsel for the appellant argued that the contract of employment between the appellant and the respondent has no statutory flavour but governed by the terms and conditions of service contained in the service agreement and other documents of contract signed by both parties.
Referring to Exhibits “EN18, EN10, EN19, EN03, EN20, EN06″ and HR Report to Executive Deputy chairman show that a case of breach of contract of employment has been established against the respondent for failure to carry out his duties. That the respondent has specific duties and responsibilities from his contract of employment as reflected in Exhibit EN18.
Learned counsel for the appellant referred to the evidence of the respondent under cross-examination when he alleged to have traveled out of Abuja for supervision of other branches but on further cross examination he admitted he had no evidence to show that he ever travelled out to visit the branches. He went further to submit that in line with the duties of the respondent, he does a stock taking annually every September as well as a weekly KPI report, but the respondent could not remember how many generators were in stock between September, 2011 and January, 2012 when he discovered the generators to be missing.
He referred to JH PLC Manual 1″ Exhibit EN02) headed POLICY CODE: EMP 2090 POLICY TITLE a criteria for disengagement of employment that is unsatisfactorily performed. Also referred is Exhibit ”EN15″ (Service Agreement) that said can be deduced as part of the duties of the respondent which upon failure to obey the company’s instructions will amount to instant dismissal.
Learned counsel for the appellant argued that when the respondent sent email to the Head office in respect of the missing generators he was immediately replied to suspend the branch Manager but the respondent refused to carry out the instruction which was why he was summarily dismissed by the appellant. That with regard to the 3 (three) missing generators at the Abuja branch office, the respondent as Area Manager was saddled with the responsibility to take charge of supervision of branches under his control and ensuring security of company stock and other assets in his area.
Submitting further, is that the refusal of the respondent to report the case of the missing generators to the management after the meeting of January, 2012 till April, 2012 shows the level of his involvement and connivance with the said Branch Manager Mohammed to sell the generators and ensure that the money was collected before reporting to the Management in April. That this action of the respondent attracts summary dismissal.
Also that such category of staff by the John Holt hand Book (Appellant) are not entitled to any benefit as they are different from those terminated that claim benefits and privileges. The Court was referred to Laws Vs London Chronicle (Indicator Newspapers) Ltd (1959) WLR 698 at 700; Ansambe Vs Bank of the North Ltd (2004) FWLR (part 221) 1427 at 1443 and Sule Vs Nigerian Cotton Board (1986) Vol. 11 QLRN 102 at 109 where the Supreme Court stated that both at common law and statute law book, disobedience of master’s lawful orders by a servant be it high or low, attracts summary dismissal.
Learned counsel referred to Exhibit EN05 an internal memo from the branch accountant of the appellant, by name Arojo Tayo that he had informed the respondent about the missing generators in September and December, 2011 but he did nothing until when the branch meeting was held and Mohammed the Branch Manager claimed responsibility and promised to pay in a week’s time.
That by virtue of Exhibit EN05 the respondent was aware of the missing generators but convened a meeting in February 2012 to exonerate himself. Also that Exhibit EN4 is a directive from the Managing Director of the appellant to the respondent to involve the Police on the missing generators but that the respondent refused to carry out the instruction.
It is submitted that the purported branch meeting and the emails sent were done as a cover up and Exhibit EN05 exposed the respondent’s actions and inaction with total connivance and collusion with Mohammed. He referred to Exhibits EN03 and EN05 to be interpreted side by side to understand exactly what transpired in respect of the missing generators.
It is also submitted that the reason for dismissal of the respondent via Exhibit 4 is in tandem with point 3 of Exhibit 02 which is a contravention of operating policies of the company, incapable of performing his duties which constitutes grave misconduct that attracts dismissal.
On the failure of the trial Court to make a pronouncement on the counter claim of the appellant, it is submitted that what that means is that the counter claim was not considered which had occasioned a miscarriage of justice to the appellant.
It is finally submitted that if the trial Court had evaluated the evidence as adduced before it would not have misconceived the facts of the case. He referred to Jatau Vs Danladi (1995) 8 NWLR (Part 415) 592; Ojogbue & Anor Vs Nnubia & Ors (1972) NSCC 478 AND Mogaji Vs Odofin (1978) 4 SC 91 among others.
We are urged to allow the appeal and set aside the judgment of the Lower Court.
For his part, learned counsel for the respondent referred to Exhibit EN15 the Service Agreement between the appellant and the respondent and submitted that Courts are duty bound in every dispute of wrongful dismissal to be guided by the contract of agreement of the parties. He relied on British Airways Vs Makanjuola (1993) 8 NWLR (part 311) 276 at 289, on this submission.
That what the Industrial Court did in this case was to interpret the contract agreement between the parties without more. That the Court never assumed an arbitral panel nor decided any issue of arbitration. He referred to Niger Dams Vs Lajide (1973) 5 SC 207.
Learned counsel for the respondent argued that in Exhibit EN15 the contract agreement between the parties, there is contained therein clause 13 an arbitration clause, a condition precedent which the appellant must conform to before taking any step to suspend or dismiss the respondent which was not complied with by the appellant. The Court was referred to PYM Vs Campbel (1875) 10 CH. APP 367 (1876) 7 QBDH10.
He contended that the submission of the appellant that Exhibit EN03 was not evaluated alongside Exhibit EN05 goes to no issue as the maker of Exhibit EN05 was at the meeting that is Exhibit EN03 and did not raise the issue that he had earlier informed the respondent on the issue of the missing generators. That in the minute of the meeting Exhibit EN03, the Branch Manger owned up to the liability of the missing generators and promised to pay back to the company.
He went further to submit that the emails sent by the respondent is evidence that the respondent upon discovery of the missing items after the meeting in Exhibit EN03, he communicated to the Head office for further action and even sought permission to invite the Police but there was no response to his request.
Submitting further, is that the trial Court after considering all the documentary and oral evidence before it and upon proper evaluation found that the respondent had not violated any of his working conditions and the appellant could not justify his wrongful dismissal. He referred to Yusuf Vs Union Bank of Nigeria Ltd (1996) 6 NWLR (Part 457) SC on the grounds of which an employer may dismiss an employee summarily.
Learned counsel for the respondent argued that from the totality of the evidence before the Court the respondent has not committed any grievous offence that could lead to his summary dismissal.
That Exhibit EN03 shows that the respondent only got to know of the missing generators in January, 2012 and not September or December, 2011 as claimed by the appellant, to which he took steps. That the summary dismissal of the respondent while on indefinite suspension without pay was done malaflde.
On the counter claim of the appellant, learned counsel for the respondent submitted that the counter claim was to indemnify for the missing generators which the Branch Manager Mr. Mohammed Aliyu accepted liability and agreed to pay.
That failure of the trial Court to make a pronouncement on the counter claim would not have changed the judgment of the trial Court as it has not affected the merit of the case.
The Court was referred to Ojiegbe Vs Okwaranyia (1962) 2 SC NLR 358 and Kossen (Nig.) Ltd Vs Savannah Bank of Nigeria Ltd (1995) NWLR (part 420) 439.
The Court is urged to dismiss the appeal with substantial costs.
The appellant’s reply brief is not helpful to the appellant having re-argued what has been canvassed in the main brief. The reply brief is therefore discountenanced.
The respondent was an employee of the appellant since 1998 and rose to the rank of Regional Manager, North. He grew within the system in the course of his employment. On the 3rd of May, 2012, he was issued with a letter of indefinite suspension by the appellant because of the three missing generators in Abuja Branch which is under his supervision. The suspension letter is Exhibit “EN01′. On the 1st of February, 2012 he summoned a branch meeting and in attendance were the Abuja Branch Manager, Aliyu Mohammed and the Branch Accountant Aroyo Tayo. The minutes of the meeting is Exhibit ”EN02”.
At the meeting, the Branch Manager Aliyu Mohammed agreed to give account of the missing generators which he failed to. The respondent then sent mails on the situation to the Divisional Chief Accountant and other superior officers seeking for assistance. The mail trail is Exhibit “EN03′. He equally sent a mail to the Managing Director of the appellant’s company, who sent a memo that the Branch Manager be suspended and be handed over to the Police. Exhibit “EN04” is the mail trail. That the memo also indicted that he be placed on indefinite suspension without pay until the matter is resolved. The respondent also said even after his unlawful suspension, he still made effort to explain issues to the Head Human Resources but to no avail. The mail is Exhibit “EN06”. And during the pendency of this matter in Court, he was served with a letter of summary dismissal.
This is the evidence of the respondent as reflected in his statement on oath at pages 8 – 10 the record.
The evidence of the appellant as deposed by one Felix Chukwurah, the Area Manager North of the appellant’s company is to the effect that the indefinite suspension and subsequent summary dismissal of the respondent was for a just cause because the three generators of the appellant that got missing since September, 2011 was under the close watch of the respondent. He said the Branch meeting called by the respondent on 1st February, 2012 was to cover up the wrongdoing perpetrated for sometime in the appellant’s Branch office in Abuja.
He said from the minutes of the meeting, the missing generators were understood to be taken away by Mr. Mohammed the Abuja Branch Manager who promised to pay within one week for the 150KVA that was already sold. He said the meeting falls short of any serious administrative steps expected of the respondent, neither was it a timely action taken to recover the generators or the money for the one sold. It is also his evidence that the mail trail sent by the respondent to his superiors after seven or eight months after the discovery of the three missing generators but concealed same to the General Manager who is directly responsible, goes to expose the respondent’s position in the mater.
He denied that the respondent requested for mandate of the appellant to invite the police to take action in the matter.
He admitted that by a letter dated 9th October, 2012, the respondent was informed that the matter concerning his suspension was under investigation pending the recovery of the appellant’s assets. The witness said following the findings of the investigation conducted, a report was issued dated 27th May, 2013 and the appellant in the exercise of its powers summarily dismissed the respondent and served him with a letter of summary dismissal dated 19th June, 2013.
In an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of contract of employment and in what manner the said terms were breached by the employer. See Angel Spinning & Dyeing Ltd Vs Ajah (2000) 13 NWLR (part 685) 532 and U.B.A Plc Vs Oranuba (2014) 2 NWLR (part 1390) 1.
It is settled law that in a contract of employment between a master and a servant without statutory flavour as in the instant case, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason – Olatunbosun vs Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (part 80) 25. See also Olaniyan Vs University of Lagos (1985) 2 NWLR (part 9) 599 and Oforishe Vs N.G.C. Ltd (2018) 2 NWLR (part 1602) 35 at 41 SC. The master must in addition give the servant a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria.
The respondent averred in paragraph 6 of his statement of claim that on the 3rd of May, 2012 he was issued with a letter of indefinite suspension by the appellant. In paragraph 21 of his statement on oath he deposed that during the pendency of this matter he was served with a letter of summary dismissal by the appellant which is Exhibit EN09. The document reads:
John Holt
Group Head Office
Plot 1609 Adeola Hopewell Street
Victoria Island P.O. Box 2508
Lagos.
June 19, 2013
Mr. Echezona Nzeribe
C/o Holt Engineering sales, Abuja.
Dear Mr. Nzeribe,
SUMMARY DISMISSAL
Management has carefully investigated the outstanding situation concerning three missing generators under your custody (1 x 150KVA Basic and 2 x 27 KVA sound proof) that were removed from John Holt premises in Abuja without any documentation or notification from you.
In line with the company’s policy, Management has decided to dismiss you from the services of the company with effect from 19th June, 2013 for not performing your duties as the Area Manager and concealing information that would have been very useful to the recovery of the generator sets worth about N9M (Nine million naira).
Yours faithfully,
For: John Holt plc
Cheta Arize
Human Capital Manager.
Exhibit EN4 is an immediate response to the respondent’s email from David Wyn Ricketts with the instruction to suspend the Abuja Branch Manager Mr. Mohammed. In the event there is no explanation in respect of the missing generators, the police should be contacted. Exhibit EN5 is another email from the respondent requesting for a written mandate to involve the Police to apprehended Mr. Mohammed for the company to recover their money.
It is true one would expect the respondent to act on the instruction in Exhibit EN4 without subsequent emails sent to the Head office for mandate to involve the police. However it is my view that this attitude of the respondent amount to negligence but not grave misconduct to cause him a summary dismissal.
This is because having called a branch meeting on the discovery of the missing generators, it is a step forward for the recovery of the generators. At the meeting Exhibit EN02, the Branch Manager Mr. Mohammed accepted liability for the missing generators and made an undertaking to pay for the one sold and provide the remaining two which he failed to. Hence the subsequent email by the respondent to the Head office for a written mandate to invite the Police to arrest Mohammed.
My opinion is that since the Branch Manager had accepted liability for the missing generators the respondent ought to be given the benefit of doubt.
While the service agreement Exhibit “EN15” provides for grounds for instant dismissal, the company’s Hand Book Policy Code Empo 2090 Exhibit EN07 provides grounds under which an employee can be summarily dismissed. Paragraph 2(B) of the Policy reads: The company reserves the right of summary dismissal without notice or payment in lieu where an employee is found guilty of:
i) Grave misconduct or fraud
ii) Fighting on duty or willful destruction of the Company property.
iii) Contravention of operating policy of the company.
iv) Unauthorized disclosure of confidential information.
v) Incapable of performing his duties to the satisfaction of the Company; refuses to comply with reasonable instructions.
By Exhibit “EN09” the letter of summary dismissal issued to the respondent, the reason given for his summary dismissal as contained in the said letter was for non performance and concealing of information. The appellant simply assumed that the respondent knew of the missing generators, hence the allegation for conniving and colluding with Mr. Mohammed the Branch Manager.
The law is that where reason is given for dismissal as in instant the case, the burden is on the appellant to establish that reason – UBA Plc Vs Oranuba (2014) 2 NWLR (part 1390) 1 at 5. See also Olatunbosun Vs Niser Council (1988) 3 NWLR (part 80) 25.
Where allegations have been made against an employee, the employer is entitled to set up a panel to investigate the allegations. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written before it.
Once the panel concludes its inquiry and found fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute or explain in defence thereto, before the employer can dispense with his services – Baba vs N.C.A.T.C (1991) 5 NWLR (part 192) 388.
In the instant case, although an investigation was conducted, the respondent was not invited before the panel or committee of investigation. This fact was admitted by the appellant when it admitted that the respondent would not know of the investigation since he was on suspension.
Where the appellant as defendant pleaded that the respondent as claimant was suspended for non-performance and concealing of information, his summary dismissal cannot be justified in the absence of opportunity given to the claimant/respondent to explain or deny or justify the allegation against him.
The proper procedure to adopt in the situation is as laid down by the Supreme Court in the case of Baba vs N.C.A.T.C (supra) at 418 – 419 per Nnaemeka Agu JSC.
“Where some allegations have been made against an employee?.the employer is entitled to set up a panel to investigate the allegations, such an investigating panel is not a Court of trial, so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source?. The panel of inquiry not being a Court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had prima facie been made out which point to the fault of any person, the employer must first inform such an employee of points case against in the him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as basis for dispensing with his services.”
On the application of principles of fair hearing, the Supreme Court at page 415 of the case observed: “Where a body, whether judicial quasi – judicial, administrative or executive in inception acts judicially in the sense that it is to determine the civil right and obligations of a person or to find him guilty or liable to a fault, then he must be given a hearing before the issue can be property decided. That is the intendment of Section 33(1) of the 1979 Constitution and is also the essence of fair hearing as a Constitutional right. In such cases, the hearing body must be seen to have observed all the implications and attributes of fair hearing.”
Also in the case of Olafimihan Vs Nova Lay – Tech Ltd (1998) 4 NWLR (part 547) 608 at 611 the Court held:
“In an action for wrongful dismissal where the employer contended that the employee was removed or dismissed for specific misconduct, the removal or dismissal cannot be justified in the absence of adequate opportunity afforded to the employee to explain, justify or defend the alleged misconduct.”
In the instant case since the respondent was not given any opportunity to defend himself on the allegations made against him, this summary dismissal was clearly wrongful. This is because with these principles the appellants did not observe the principle of fair hearing before dismissing the respondent summarily.
In Onyekwuluje Vs Benue State Govt. (2015) 16 NWLR (part 1484) 40, the Supreme Court held that when a party who is entitled to be heard is denied fair hearing before a decision affecting him is made then by virtue of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, that decision cannot bind him because he is not given the opportunity of being heard.
In the instant case, the record shows that the respondent was not given the opportunity to defend himself on the allegation made against him. The conclusion therefore is that his summary dismissal is wrongful. The appeal lacks merit and it is dismissed. The judgment of the trial Court is affirmed.
N50,000.00 costs for respondent against the appellants.
ABDU ABOKI, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I read the draft judgment just delivered by my learned brother T. Y. Hassan, JCA.
My learned brother has in an exhaustive manner resolved all the issues that call for determination in this appeal. I adopt his reason and conclusion as mine including the order for costs.
Appearances:
J. K. Mbanco Ikwegbu with him, Uche OkaforFor Appellant(s)
Dr. Alex Akunebu with him, Judith IgweFor Respondent(s)
