MR. ABIADE AKINBOLA v. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ANOR
(2018)LCN/11804(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/A/37/2006
RATIO
TRIAL COURTS HAVE THE DUTY TO EVALUATE EVIDENCE
On evaluation, it is trite that evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing the witnesses. per PETER OLABISI IGE, J.C.A.
THE COURT IS RESTRICTED TO ISSUES RAISED
The law in this regard is now settled. It is now trite law in the determination of disputes between the parties, the Court should confine itself to the issues raised by the parties per PETER OLABISI IGE, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. ABIADE AKINBOLA Appellant(s)
AND
1. MINISTRY FOR FEDERAL
TERRITORY
(Now Federal Capital Territory Administration)
2. FEDERAL CAPITAL
DEVELOPMENT AUTHORITY Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court ABUJA DIVISION delivered by HONOURABLE JUSTICE S. J. ADAH on the 8th day of the December, 2004 dismissing the Suit of the Appellants as Plaintiffs at the lower Court.
The Plaintiffs sought for the following reliefs:-
1. An order that the purported dismissal of the Plaintiff from the service of the 2nd defendant as contained in a letter of dismissal dated 30th January, 2000 is unconstitutional, illegal, null and void.
2. An order setting aside the letter of dismissal from service dated 30th January, 2000 given to the plaintiff.
3. An order directing the 2nd Defendant to re-instate the plaintiff.
4. An order directing the 2nd Defendant to pay to the plaintiff all his salaries, emoluments and such other remuneration he is entitled to as staff from the date he was suspended up to the date of purported termination and to the date of judgment and eventual re-instatement.”
The matter proceeded to trial. The Appellant testified for himself while the Defendant called no witness at all.
The lower Court found that the Defendant lawfully dismissed the Plaintiff for misconduct. The learned trial Judge concluded as follows:-
“The Plaintiff in an elaborate manner in his evidence admitted the misconduct he was accused of. He therefore has nothing to contest from the contract of employment of the Plaintiff, there is nothing to suggest that it anything else other than a simple contract of employment. The import of this is that the master has the right to hire and fire and this was expressed in the contract. In the case of Savannah Bank (Nig) Ltd. v. Fatokun (2002) 1 NWLR (Pt. 749) 544 the Court of Appeal held at p. 560 paras. D-E that:-
“There are various degrees of misconduct which can give an employer liberty to dismiss an employee, example dishonestly or fraud of the employee in his employment, grave and weighty misconduct. Dissatisfaction with the employee’s conduct or a case of infidelity. (Sule v Nigeria Cotton Board (1985) 2).”
In that case also the Court further that while an employer is not bound to give any reason for lawfully terminating a contract of service, he must give reason for summarily dismissing the servant.
In the instant case, the misconduct against the Plaintiff were itemized in the letter of dismissal which border on the conduct of the Plaintiff in renting out the house of his masters and collecting money to the tune of N150,000.00 without authorization and misappropriating same. Since the Plaintiff has no problem in owning up that misconduct, the choice is that of the Defendants to decide on whether to pardon him or dismiss him. The Defendants chose to dismiss him and this I believe from the facts before the Court in this case is proper. The issue of backdating the dismissal to the time of his suspension from duty may be excessive a punishment but there is nothing wrong with the procedure adopted in this case.
From the foregoing therefore, I hold that the Plaintiff has not proved his case as is required. The suit is hereby dismissed.”
The Appellant was aggrieved by the judgment and has by his Amended Notice of Appeal dated 19th day of September, 2013 and filed on 20th day of September, 2013 appealed to this Court on nine grounds which without their particulars are as follows:-
“GROUND 1
The learned trial judge erred in law when he held that “I shall therefore look into the available evidence which is that put forward by the plaintiff in this case to arrive at the Justice of the Case” and then at the end of the judgment held that lithe Plaintiff has not proved his case as is required.”
GROUND 2
The learned trial judge erred in law when he failed to enter judgment in favour of the Plaintiff after holding that defendant did not lead evidence in defence of their case.
GROUND 3
The learned trial judge erred in law when he refused and neglected to consider and rule on all issues of law raised by the Plaintiff/Applicant thereby denying him a fair hearing.
GROUND 4
The learned trial judge erred in law when he dismissed the appellant case without considering his complaint of denial of fair hearing made against the disciplinary panel set up by the Respondent.
GROUND 5
The learned trial judge erred in law when he held that the Appellant owned up to the allegation of misconduct leveled against him by the Respondents.
GROUND 6
The learned trial judge erred in law when he held that the provision for summary dismissal in Exhibit 2 (letter of pensionable employment) does not require observance of principle of fair hearing in the exercise of the power of dismissal vested in the respondent which holding occasioned a miscarriage of justice.
GROUND 7
The learned trial judge erred in law when he held thus “the issue of backdating the dismissal to the time of his suspension from duty may be excessive punishment but there is nothing wrong with the procedure adopted in this case.”
GROUND 8
The learned trial judge erred in law when he agreed that the Appellant’s employment was a pensionable one and yet refused to give consideration to the applicability of the civil service rules on disciplinary procedure.
GROUND 9
The learned Trial judge erred in law by holding that the Respondent dismissed the appellant pursuant to its powers of summary dismissal contained in Exhibit 2.”
The Appellant filed his Appellant’s Brief of Argument dated 27th September, 2013 on 30th September, 2013 while the Respondent’s Brief of Argument dated 30th October, 2006 was filed on 2nd November, 2006.
?The appeal was heard on 16th April, 2018 when the learned Counsel to the Appellant adopted his Brief of Argument and urged this Court to determine the appeal on his brief and that the Respondent dated 30th October, 2006 but filed 2nd November, 2006.
The learned Counsel to the Appellant ADEKOLA MUSTAPHA, ESQ. formulated six (6) issues for determination as follows:-
“1. Did the learned trial judge properly appraise the evidence put forward by the appellant (the only evidence before the Court); in a case not defended by the defendants before arriving at a conclusion that he did not prove his case (GROUNDS 1 AND 2).
2. Was the appellant denied fair hearing having regard to the procedure adopted by the Disciplinary panel constituted by the Respondents to determine the allegations made against him (GROUND 4)
3. Was the learned trial judge right to gloss over the fundamental issues of law raised by the appellant against the respondents to hold that the provision of summary dismissal in the appellant’s letter of pensionable employment does not give room for observance of principle of fair hearing GROUNDS 3 AND 6.
4. Was the learned trial judge right to hold that the backdating of the Appellant’s dismissal to the time of his suspension from duty was an excessive punishment and yet refused to offer any remedy (Ground 7)
5. Was the learned trial judge right after holding that the appellant’s employment was a pensionable one under the civil service rules and yet hold that the respondent can summarily dismiss him pursuant to his provisional letter of employment even when the Respondent stated that the appellant was dismissed pursuant to civil service rules 04107 (GROUNDS 8 AND 9).
6. Was the learned trial judge correct to suo motu raise and resolve issues of misconduct against the appellant (GROUND 5).”
The Respondent did not formulate any new issue but chose to question the competence of the issues as they relate to the grounds of appeal and then proceeded to respond to the issues raised in the Appellant’s brief.
ISSUES NO. 1 AND 6
The learned Counsel to the Appellant submitted that the fundamental question to determine is whether the trial judge properly performed his primary duty of evaluating the evidence adduced by the Appellant since the Respondent did not put in any evidence to challenge or contradict that which was put forward by the appellant.
That the Respondents did not supply any material facts to deny the averments made by the Appellant in his statement of claim. He referred to page 33-34 of the record of appeal. He cited the cases of:-
1. BALONWU v. OBI (2007) 5 NWLR (Pt. 1028) 488;
2. DAGGASH v. BULAMA (2004) 14 NWLR (Pt. 892) 144;
3. AKANNI v. ODEJIDE (2004) 9 NWLR (Pt. 879) 575 AT 610;
4. FALOBI v. FALOBI (1976) 10 S.C. 1 etc.
That the Defendant had no defence to his case since no material facts placed before the Court amounting to denial and that even if there was any at all; the fact that no evidence was led in support of alleged pleading amounts to abandonment of defence.
The while relying on the case of ARTRA INDUSTRIES (NIG.) LTD v. N.B.C.I. (1998) 4 NWLR (Pt. 546) 357 erroneously believed that the evidence of the Plaintiff was self defeating and therefore not acceptable. He relied on Exhibit 2 and oral testimony of the plaintiff at page 63 of the record.
Learned counsel submits that that the defendants knew the plaintiff’s case against them and they had all the opportunity to debunk it. That the defendants could have called Mrs. Aisha Wakili and Hafsat Modibbo to testify against the plaintiff or any of the members of the panel set up to investigate the allegation against the plaintiff on the point in issue. That what the learned trial judge did was to conjure or speculate and a mere speculative observation cannot be a substitute to a; proof of a fact stated in a civil suit. He cited the case of ARCHIBONG V. ITA (2004) 22 NWLR (Pt. 858) 590 AT 597. That the finding of a trial Court must be based on evidence adduced by the parties as guided by their pleadings otherwise such findings of fact would be set aside on appeal. He cited TOTAL NIG. PLC v. AJAYI (2004) 3 NWLR (Pt. 860) 270 AT 275. He urged this Court to resolve these two issues in favour of the Appellant.
In response, learned Counsel to the Respondent MARY IYOMA AMADE submits that the Respondents filed their statement of defence but did not call oral evidence to sustain the averments in their pleadings in the course of proceedings at the lower Court. That it is trite law that issues are deemed to have been joined by parties to a suit when pleadings are filed and served. That a Court cannot and ought not to evolve a case for either party and proceed to give judgment thereon contrary to the case of the parties before it. He cited the case of EDWIN CHUKWUDULUE UDENGWU v. SIMON UZUEGBU & 4 ORS (2003) NSCQR VOL. 75, PG 262 AT 77 PARAGRAPHS E TO H. That Appellant?s contention that issues were not joined is therefore a misconception.
That it is settled law that evaluation of evidence is a province upon which the trial Court has supremacy. He cited the case of LIAM JOE IKYERNUM v. NGI LORKUMBUR & ANOR (2002) 11 NWLR (Pt. 777) PG 52 @ 80 PARAGRAPHS C-F.
That the decision of the lower Court was based on Exhibits 1 & 2 tendered by the Appellant himself, and the ruling of the trial Court was founded on the unchallenged oral evidence of the Appellant. That the decision of the trial Court is proper because it was based on the evidence placed before the Court by the Appellant. He cited the cases of:-
1. GABRIEL IWUOHA & ANOR v NIGERIAN POSTAL SERVICES LIMITED & ANOR (2003) NSCQR, VOL 14 (Pt. 1) P6 253 AT 281 PARAGRAPH H, PG 282 PARAGRAPH A TO C;
?2. ENGINEER EMMANUEL OSOLU v. ENGINEER UZODINMA OSOLU & 5 ORS NSCQR VOL. 14 (Pt 11) PG 750 @ 772 PARAGRAPHS F & G.
Pursuant to Section 131-134 of the Evidence Act 2011, the burden of proof initially rests on the claimant to lead or introduce credible, cogent or believable evidence in line with his pleadings to enable him sustain and win his case against the Defendant. The onus which oscillates between the claimant and the Defendant will not shift until the Claimant whose principal relief before the Court is declaratory has made out a prima facie case. The burden of proof can be achieved on either side on the balance of probabilities. See:-
1. MR. MELFORD AGALA & ORS v. CHIEF BENJAMIN OKUSUN & ORS (2010) 5 SCM 22 AT 371;
2. ALHAJI ADEBAJO AKANDE v. JIMOH ADISA & ANOR (2012) 15 NWLR (Pt. 1324) 538 At 558 A-G;
3. JOSHUA CHIBI DARIYE v. THE FEDERAL REPUBLIC OF NIGERIA (2015) 2 SCM 48 AT 64 G-I TO 65 A-B per NGWUTA, JSC.
?On evaluation, it is trite that evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing the witnesses. Also, the Supreme Court has extensively dealt with the issue of evaluation and went further to provide guidelines in the case of KAYDEE VENTURES LTD v. THE HON. MINISTER OF CAPITAL TERRITORY & 2 ORS (2010) 41 NSCQR (Pt. 2) 830 AT 840 per MOHAMMED, JSC who said:-
“The practice in trial Court is this, two sets of evidence are normally laid before the learned trial Judge. One set by the Plaintiff and the other set by the Defendant. These averment each of the parties made in his lists of pleadings. After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the learned trial Judge to first of all put the totality of the testimony adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then observe which is heavier NOT by the NUMBER of witnesses called by each party, but by the quality of probative value of testimony of those witnesses. In determining which side is heavier, the learned trial Judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the other adduced by the other party. It is to be noted that any evidence that was rejected by the trial Judge should not find a resting place on that imaginary scale.”
The lower Court did not follow the procedure stated in KAYDEE VENTURES LTD v. MINISTER OF F.C.T. (supra) in arriving at the evaluation and ascription of probative value to the evidence of both parties in this appeal before its conclusion because the defendant did not adduce evidence to justify the averments in his pleading. In the light of the foregoing, Issue 1 is resolved in favour of the Appellant.
On Issue 6, it is a correct statement of law that Courts of law must refrain from raising suo motu issues upon which their decisions or judgment would run. The rationale for that approach is not difficult to understand. It is an inseparable adjunct to the concept of fair hearing. The Supreme Court has in several cases warned on the approach in such matters. The dictum of the Supreme Court in the case of STATE v. OLADIMEJI (2003) 14 NWLR (Pt. 839) 57 AT 69 is very opposite. The Supreme Court said:-
“The law in this regard is now settled. It is now trite law in the determination of disputes between the parties, the Court should confine itself to the issues raised by the parties.
The Court is not competent suo motu to make a case for either or both parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it.”
I am of the view that the learned trial Judge was right when he held that the plaintiff from his testimony said he was given a query in which he was indicted by the defendants. The plaintiff in his testimony before the Court said:-
“In 1999 I was given a query by the 2nd defendant. That I gave my one bedroom flat to one Mrs. Aisha Wakili. I was given another two bedroom flat in Wuse Zone 1, I was queried saying I gave out the house and collected N150,000 from her. I answered the query and I returned it to them. I informed the defendants that the N150,000 I collected on the house was to renovate the house. I offered the house to the woman and she paid.”
The Plaintiff in an elaborate manner in his evidence has admitted the misconduct he was accused of.”
From the foregoing, I am with due respect unable to agree with Appellant’s Counsel that the lower Court suo motu raised and resolved issues of misconduct.
ISSUES 2, 3 AND 5
?Appellant’s Counsel submits that the learned trial Judge referred to Exhibit 2 which makes provision for summary dismissal as the major condition governing the plaintiff’s employment. He submitted that this is far from truth because even the defendant did not rely on Exhibit 2 or the terms contained therein for exercising the powers of dismissal it purportedly exercised relying on the cases of:-
1. LONGE v F.B.N. PLC (2010) 6 NWLR (Pt. 1189) 1 AT 37;
2. VICTINO FIXED ODDS LTD v. OJO (2010) 8 NWLR (Pt. 1197) 486;
3. AJUWON v. AKANNI (1993) NWLR (Pt. 316) 182;
4. U.T.C. v. NWOKORUKU (1993) 3 NWLR (Pt. 281) 295 @ 308. etc.
That the Plaintiff while testifying for himself at page 46 of the record also stated that a panel was set up to investigate the allegation against him but he was not called to appear to defend the allegation.
That the learned trial judged gave so much consideration to Exhibit 2 and the “alleged admission of the plaintiff” whereas the Exhibit and the alleged admission would not have mattered if the learned trial judge had considered his complaint on the breach of his fundamental right to fair hearing by the defendant.
That any disciplinary act of a public servant in the established pensionable cadre as in the case of the Appellant which is not in compliance with the Civil Service Rules will be ultra vires, null and void as a public servant can only be validly removed from the service if the procedure prescribed by law was followed citing the case of IDERIMA v. R.S.C.S.C (SUPRA) AT PAGE 382. That if the plaintiff was alleged to have committed a serious misconduct under the public service rules 04401, disciplinary procedure for misconduct and serious misconduct followed. That the totality of the defendant’s action was that they failed woefully to observe the principle of fair hearing as enshrined in the Constitution as well as the public service rules if relied upon to invoke its powers of summary dismissal. He cited the cases of:-
1. NIGERIAN GAS COMPANY LTD v. DUDUSOLA (2005) 18 NWLR (Pt. 957) 292 @ 302.
2. UBN LIMITED v. OGBOH (1995) 2 NWLR (Pt. 380) 647.
He urged this Court to resolve the three issues in favour of the Appellant.
?In response, learned Counsel to the Respondent submits that the Appellants employment was not covered by statutory flavour to bring his claim within the purview of specific legal and or statutory provisions. That although the Appellant is a public servant, he is not a civil servant as to bring his employment within the protection of the Federal Civil Service Rules. He cited:-
1. OLORUNTOBA – OJU v. LAWAL (2003) 17 NWLR (Pt. 848) 57 AT 85-86;
2.ILOABACHIE v. PHILIPS (2002) 14 NWLR (Pt. 787) 264 AT 284.
That it is trite law that under a written contract, the Court has to interpret the terms from the contact agreement itself, as in this case Exhibit “1” and “2”, the extraneous material should be considered citing the case ISHAKU v. ZWINGINA (2003) 6 NWLR (Pt. 817) 560 @ 575. That Appellant’s appointment is not governed by the Federal Capital Territory Act, that is, the Act setting up the 2nd Respondent (Appellant’s employer). That the fact that the 2nd Respondent made reference to the Civil Service Rules in Exhibit 7 in error does not make it applicable to both parties.
Rule 030301 of the Public Service Rule, 2006 defined “misconduct” as “a specific act of wrong-doing or improper behavior which is inimical to the image of the service and which can be investigated and proved. It can also lead to termination and retirement.”
Rule 030307 of the Public Service Rules, 2006 provides that:-
“Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Civil Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule;
(i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;
?(ii) The query, or preliminary letter, shall be in the format shown in Appendix II;
(iii) If the officer submits his/her representations and the Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the tine fixed, the Commission may take such action against the officer as it deems appropriate:
(iv) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
(v) Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;
(vi) The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;
(vii) Were witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;
(viii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Civil Service Commission think it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;
(ix) The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses.
(x) If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;
(xii) If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further direct accordingly; and
(xiii) All disciplinary must commence and be completed within a period of 6o days except where it involves criminal cases.”
The procedure as stated by the above mentioned provision of the Public Service Rules was not followed by the Defendant.
The assertion of the Respondent that the Appellant is not within the protection of the Federal Civil Rules is not correct.
ISSUE 4
The complaint of the Appellant under Issue 4 is that the act of backdating the purported termination is wrong and therefore a nullity because neither the Civil Service Rules nor Exhibit 2 gives such power to the Respondent. And that the process of arriving at the said backdated termination is unlawful. It amounts to a nullity. Rule 030408 of the Public Service Rules, 2006 provides that:-
“030408 – When an officer is dismissed, no notice or emolument in lieu shall be given to him/her and his/her dismissal shall take effect from the date on which he/she is notified thereof. This date shall be notified by the Permanent Secretary/Head of Extra-Ministerial Office concerned to the Federal Civil Service Commission and to the Office of Establishments and Pension, as soon as possible.”
?The Plaintiff has in this case adequately pleaded his letter of Employment and its terms and the letter of his promotions and letter of his dismissal from service dated 30/1/2002. The Respondents filed Statement of Defence wherein they admitted that the employment of the Appellant was regulated by Civil Service Rules. Though he was said to have been dismissed by the Respondents but in between Appellants suspension and query given him in 1999 the Appellant was promoted in 2002. These were admitted in paragraph 2 of Respondents Statement of Defence in paragraph 2 thereof. As at 30/11/2002 he was on Grade Level 08.
I have carefully gone through the Exhibits tendered by the Appellant. By Exhibit 1, the Appellant was appointed on Grade Level 04. He was upgraded to pensionable appointment on 1st February 1991 as an Interpreter/Operator and by Clause (v) of Exhibit 2, dated 1/2/91 the appointment may be terminated by either party giving 30 days notice or payment in lieu unless the Appellant is summarily dismissed. He was promoted vide letter dated 27th January, 1998 as Senior Foreman in recognition of his loyalty, hard work and devotion to duty by Exhibit 3. By a letter dated 24/11/1999, Appellant was suspended with immediate effect and to desist from reporting for duty until investigation concerning issue of financial misappropriation against his was concluded.
This was by Exhibit 5 dated 24/11/1999. By January 31st 2000 a little over one month after suspension the Appellant was promoted vide Exhibit 4 from Works Superintendent on Grade Level 08 with effect from 1st January, 1999.
The letter reads in full thus:-
“FEDERAL CAPITAL DEVELOPMENT AUTHORITY.
DEPARTMENT OF ADMINISTRATION
P.M.B. 24
ABUJA. NIGERIA
PE. 98/ENGR/GL. 08/SN. 46.
REF. NO. FCDA/55/S. 120/VOL. II
TEL….
MR/MRS/MISS ABIADE S. AKINSOLA
TELEX?.
U.F.S. DIRECTOR OF ENGINEERING SERVICES?. DATE: 31ST JANUARY, 2000 FEDERAL CAPITAL DEV. AUTHORITY
P.M.B. 24
ABUJA
LETTER OF PROMOTION
I am directed to inform you, with pleasure, that the Honourable Minister has approved your promotion to the post of HIGHER WORKS SUPERINTENDENT on GL. 08 to take effect from 1st January, 1999, for the purpose of seniority in the service.
2. However, you will start to receive the salary GRADE LEVEL 08… with effect from 1st October, 1999.
3. You will also retain 1st January as your incremental date.
?4. This promotion has been made in recognition of your loyalty, hard work,devotion to duty and sense of responsibility. It is therefore hoped that you will continue to maintain the spirit of commitment, which you have always shown.
5. Congratulations.
Sgd.
C. C. ASIEGBUNAM
for: Honourable Minister (F.C.T).”
The letter from Respondents tendered by Appellant as Exhibit 6 also invited Appellant to attend 2001 Promotion/Interview/Screening of 8/10/2001.
Three months later the Respondents purportedly dismissed the Appellant from their employment vide letter dated 30/1/2002. The letter reads in full:-
“FEDERAL CAPITAL DEVELOPMENT AUTHORITY.
DATE: 30/1/2002
P.M.B. 24
ABUJA, NIGERIA
DEPARTMENT OF ADMIN. & SUPPLIES
OUR REF. Pc. 9517/VOL. 1/102
TEL….
Mr. BIADE S. AKINSOLA
DATE: 30/1/2002
(Higher Works Superintendent)
u.f.s.
The Director
Maintenance & Engineering Services
FCDA – FCDA
DISMISSAL FROM SERVICE
You will recall that you were reported to have been involved in fraudulent and corrupt practices by collecting N150,000.00 from Mrs. Aisha Wakili and N160,000.00 from Mrs. Hafsat Ibrahim Moribo respectively for processing and transfer of the same government quarters …..Block 8, Flat 20, ….. Garki Abuja to them. You were therefore queried and you submitted a representation.
2. After a thorough deliberation on your presentations, Establishment Committee noted that you failed to exculpate yourself. Consequently, and in accordance with the extant rules (Public Service Rule. No. 04401), I am directed to convey to you the Management approval of your dismissal from the service with effect from 24th November, 1999.
3. You are therefore, to submit to your immediate supervising officer all the Authority’s property in your possession (including your Identity Card).
4. By a copy of this letter, the Director of Engineering & Maintenance Services is being advised to formally check you out of your official quarters.
Sgd.
A. M. Adeleye
For: Executive Secretary, FCDA.”
The letter now made reference to allegation of fraudulent and corrupt practices by collecting N150,000.00 from Mrs. Aisha Wakili and N160,000.00 from Mrs. Hafsat Ibrahim Moribo and that an establishment Committee sat on the matter.
The Appellant has stated in his pleadings and evidence that he was not invited to appear before any Panel. There was no denial from the Respondents as they failed to give evidence on their pleadings. They abandoned their pleadings and called no evidence at the trial leaving only the version of Appellant evidence before the trial Court. The dismissal of Appellant must be an afterthought after they have consistently reworded the Appellant with promotions.
In any event, the reason given for Appellant’s suspension in 1999 was that he was being investigated for a matter of misappropriation and thereafter he was promoted for hard work and loyalty. It cannot be said that the Appellant was given any opportunity of being heard. The dismissal is a clear breach of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. He ought to have been invited to appear and defend himself before the Committee before whom allegation of corrupt practices were laid or treated against the Appellant. The dismissal cannot stand having infringed the right of Appellant to fair hearing.
By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal panel or body. See:-
1. R ARIORI & ORS v. MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23-24 per OBASEKI, JSC.
2. CHIEF J. L. E. DUKE v. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 AT 366 B-C per GALADIMA, JSC who said:-
“It now remains for me to consider whether the appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent.
?By the term fair hearing within the con of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties.
The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respondent thereto.”
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside forthwith. See NICHOLAS CHUKWU JEKWU UKACHUKWU v. P.D.P. & ORS (2014) 2 SCM 2002 AT 223 F-D 224 A-H per K. M. O. KEKERE-EKUN, JSC who said:-
“The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provided thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality.”
It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc. (2008) All FWLR (Pt. 403) 1240 @ 1255 A-B (2008) 1 SCM 204, Adigun v. A.G. Oyo State (1987) 7 NWLR (Pt. 53) 674, Okafor v. A.G. Anambra State (1991) 3 NWLR (Pt. 200) 59, Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329, (2010) 12 (Pt. 2) SCM 120.”
?The Respondents claimed to have dismissed the Appellant pursuant to Public Service Rules No. 044-01. The Rule relied upon is not applicable to the Appellant’s case. By their letter of dismissal to the Appellant, the Respondents were fully aware that the disciplinary action against Appellant must be in accordance with Public Rules.
The Appellant cannot be dismissed retrospectively. In other words, the Respondents have no powers under the Public Service Rules to back date the dismissal of Appellant to 24th November, 1999 after he had been promoted and also invited for another promotion interview. See:-
1. NEW NIGERIAN BANK LTD v. FRANCIS OBEVUDIRI (1986) 3 NWLR (PART 29) 387 AT 401 per AGBAJE, JCA later JSC who said:-
The letter of dismissal of 20th June, 1979 from the Bank to the plaintiff was said to be with effect from 29th December, 1978. Dealing with this aspect of the letter which made the effective date of the dismissal 29th December, 1978, the learned trial Judge said;
“The plaintiff’s appointment with the Bank subsisted until the 20th June, 1979 when the letter of dismissal was written and presumably served on the plaintiff and not the 29th December, 1978 (the retrospective date).”
?I entirely agree with the learned trial Judge on this view of hers. In this passage from the judgment of the learned trial Judge, in my view, held that the effective date of the dismissal of the plaintiff from the services of the defendant was 28th June, 1979 and not 29th December, 1978 which was indicated in the letter of dismissal written to the plaintiff. Where I part company with the learned trial Judge is the earlier findings of hers to the effect that the effective date in the letter of dismissal which she held to be invalid invalidates the whole of the grounds upon which the defendant relies for dismissing the plaintiff. It is to be remembered that the defendant’s case was that it dismissed the plaintiff for misconduct. The lower Court had found and I agree with it that the misconduct justified the summary dismissal of the plaintiff. The plaintiff worked for the defendant up to 28th June, 1979 which was held by the lower Court to be the effective date of the dismissal of the plaintiff. The case of Healey v. Societe Anonyne Francoise Ribastic (1917) 1 KB 946 when applied to the case in hand only means that the summary dismissal of the plaintiff by the defendant was good as from 28th June, 1979 and not as from the earlier date during which period the plaintiff had worked for the defendant, that is to say, 29th December, 1978. So, applying Healey’s case, the plaintiff is entitled to keep his salary or claim arrears of salary due to him if he had not been paid for the period between 29th December, 1978 and 28th June, 1979. But this is not the position here. The learned trial Judge treated Healey’s case as an authority for saying that the dismissal for misconduct is invalid once the dismissal was made with retrospective effect.
I do not think that authority decides that. What it decides, in my view, I have just stated above.”
2. UNDERWATER ENGINEERING & ANOR v. DARUUA DUBEFON (1995) 6 NWLR (PART 400) 156 AT 164 D-G per OGWUEGBU, JSC who said:-
“The next question is whether the dismissal or termination of the respondent with retrospective effect was proper. In which case, he would not be entitled to remuneration from May to October, 1982. The contract was oral and the respondent’s basic annual salary is N4,800.00 at N800.00 per month. His salary became due and his right to it vested at the end of each month. The respondent’s employment was in fact existing lip to 12th October, 1982 when he was told that his services were no longer required. The right of the appellants to terminate the employment by reason of antecedent misconduct which was known to the appellants all along and for which the respondent had been tried and acquitted did not entitle them to treat the contract of employment as having been determined in May, 1982. The respondent was therefore entitled to recover his salary up to 12th October, 1982. I agree with the Court below that the effective date of the respondent’s dismissal was 12th October, 1982 and not earlier. See Healey v. Societe Anonyne Francoise Rubastic (1917) 1 K.B. 946. The respondent’s absence from duty from 20th May to 12 October, 1982 was as a result of his arrest and prosecution at the instance of the appellants. It cannot be said that he voluntarily absented himself from work without excuse. He was not interdicted during the period. Even after his acquittal and discharge, the appellants said nothing to him about his employment until 12:10:82. He had every reason to believe and rightly too, that, his employment was still subsisting at least up to 12th October, 1982 when he received the oral instruction that his services were no longer required by the appellants. He was fully entitled to his remuneration as it accrued from month to month, that is, from May to 12th October, 1982. The case of Browning & Ors v. Crimlin Valley collieries Ltd. supra which the learned Senior Advocate relied heavily upon has no application to this case. That case was correctly decided on its peculiar facts.”
The learned trial Judge failed to properly and correctly assess the oral and documentary evidence before it and this Court will in the interest of justice have to interfere with the findings of the lower Court. See IHUNWO v. IHUNWO & ORS (2013) 8 NWLR (PART 1357) 550 AT 571D per ARIWOOLA, JSC.
In the result, the Appellant’s appeal is meritorious and it is hereby allowed only in respect of reliefs 1, 2 and 4 contained on page 29 of the record. Relief 3 seeking for reinstatement is refused. For avoidance of doubt judgment is hereby entered in favour of the Appellant against the respondents as follows:-
1. A Declaration is hereby made that the purported dismissal of the Plaintiff from the service of the 2nd Defendant (now 2nd Respondent) as contained in the letter of dismissal dated 30/01/2002 as unconstitutional, null and void.
?2. An Order is hereby made setting aside the said letter of dismissal from service dated 30/1/2002.
3. An Order is hereby made directing the 2nd Defendant to pay the Plaintiff all his salaries, emoluments and such other remunerations he is/was entitled to as a staff from the date the Plaintiff was suspended up to the date of the purported dismissal from service of the 2nd Respondent.
Costs of N250,000.00 (Two Hundred and Fifty Thousand Naira) is awarded in favour of the Appellant against the Respondents.
ABDU ABOKI, J.C.A.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother PETER OLABISI IGE, JCA. His Lordship has prudently and diligently dealt with the issues that arose for determination.
I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed in respect of reliefs 1, 2 and 4. These findings and conclusions flowed from the evidence adduced at the trial.
It is on account of this that I also find the appeal to be meritorious and same is hereby allowed.
I abide by the orders contained in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Brother, PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
J. O. Adeniyi, Esq. with him, AyopemiFor Appellant(s)
Respondents served on 12/4/2018For Respondent(s)
Appearances
J. O. Adeniyi, Esq. with him, AyopemiFor Appellant
AND
Respondents served on 12/4/2018For Respondent
