MR. SULE OBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY
(2013)LCN/5857(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2013
CA/L/138/2010
RATIO
“An employment is said to have statutory flavour where the terms and conditions of the contract of employment or service are specifically provided for by Statute or regulation made there under. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NWLR 128; Fakuade v. O. A. U. T. H (1993) 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bay v. Public Service Commission (1981) 1 S.C. 40; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; and Udo v Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.”Per IYIZOBA, J.C.A.
“It is trite law that a court has a duty to consider all material evidence and issues raised during the trial. This point has frequently been emphasized in many judicial authorities of the apex court. See Samba Petroleum Ltd & Ors v U.B.A. PLC & Ors (2010) 6 NWLR 530 @531; BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 @ 522 where Uwaifo JSC observed:- “It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.” See also ORJI v PDP (2009) 14 NWLR (Pt 1161) 310 @408; KARIBO V. GREND (1992) 3 NWLR (PT.230) 426 @441; OSOSANA V. AJAYI (2004)14 NWLR (PY.894) 527 @ 549; OKONKWO V. UDO (1997) 9 NWLR (PT.579) 16 @ 20..See also the court of appeal decisions cited in the appellant’s brief mentioned above. If however as pointed out by the appellant and in the above Supreme Court authority, the failure to pronounce on all issues raised did not lead to a miscarriage of justice or if the issues were not crucial then the decision will not be tampered with by an appeal court.”Per IYIZOBA, J.C.A.
“A court cannot impose or foist an employee on an unwilling employer. See Union Bank Of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664, Ziideeh v Rivers State Civil Service Commission (2007) 3 NWLR (Pt. 1022) 554; (2007) LPELR-3544(SC).”Per IYIZOBA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
MR. SULE OBAJE Appellant(s)
AND
NIGERIA AIRSPACE MANAGEMENT AGENCY Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): At the Lagos Division of the Federal High Court, the plaintiff (now appellant) took out a writ of summons against the defendant (now respondent) claiming the following reliefs:-
i. A Declaration that the purported dismissal of the Plaintiff from employment of the Defendant on 10th of May 2005 via a letter bearing reference number NAMA/HQ/P.204/1/83 is unlawful, invalid, null, void and of no effect whatsoever and howsoever.
ii. An Order of this Honourable Court setting aside the said letter bearing reference number NAMA/HQ/P.204/1/83 by which the Defendant purported to dismiss the Plaintiff from employment.
iii. An Order compelling/directing the Defendant to recall and reinstate the Plaintiff to work/duty forthwith or in the alternative an order of this Honourable Court reinstating the Plaintiff to work/duty.
iv. N1, 000,000.00 (One Million Naira) only being damages for unlawful termination of employment.
v. An order of perpetual injunction restraining the Defendant, its servants, agents, privies from dismissing the Plaintiff from employment save in accordance with the law.
vi. Further and other reliefs.
Pleadings were filed and duly exchanged. At the hearing, the plaintiff testified as PW1 and called no other witness. The defendant also called one witness. At the close of hearing, their respective counsel filed and exchanged written addresses which were duly adopted. In a reserved judgment delivered on the 15th day of December 2009, the learned trial Judge Archibong J. dismissed the Appellant’s claim concluding thus:-
“I see no reason to set aside the findings of fact in relation to the enquiries and proceedings conducted by the Defendant following upon the report of the Plaintiff’s misconduct.
The Courts are more interested in the procedure by which staff are disciplined and the availing or lack of the staff’s opportunity to be heard.
Plaintiff has not established the likelihood of bias and therefore I do not view as decisive the absence of a record of proceedings of the disciplinary committee to review or assess in the hearing of this suit.
I agree that the letter and spirit of the staff handbook, Exhibit 9 was not violated; and the grievousness of an offence may occasion an abridgment of proceedings or procedure. What is of overriding importance is the opportunity of an accused staff to be heard on the allegations made against him or her.
“I find the Plaintiff was certainly not denied an opportunity to be heard.
Suit dismissed”
The Plaintiff dissatisfied with the said Judgment has now appealed to this court vide Notice of Appeal dated 17th day of December 2009 with three grounds of appeal. Out of the three grounds of appeal, the appellant formulated the following three issues for determination:-
i. Whether the failure of the learned trial Judge to consider all material issues raised by the Appellant at the lower court did not occasion a miscarriage of Justice?
ii. Whether the Judgment of the lower court is not against the weight of evidence available to the lower court?
iii. Whether non-evaluation of the evidence led by the parties, particularly that of the Appellant did not occasion a grave miscarriage of Justice?
The Respondent in his brief adopted the issues formulated by the appellant. Issues 1 and 3 are basically the same. While I shall go ahead to set out the arguments of counsel on the three issues separately, in resolving the issues, I shall consider them all together as the arguments are interwoven.
APPELLANT’S ARGUMENTS
On issue 1, learned counsel for the Appellant submitted that the learned trial Judge erred in law when he failed to consider all the issues raised and canvassed before him. Counsel argued that a court is duty bound to consider all the material evidence and issues raised by disputants and determine same one way or the other before proceeding to determine the suit and enter judgment. Otherwise the party whose case was not accorded adequate and full consideration may not accept that justice has been done to him. Counsel cited and relied on the cases of Shell Petroleum Development Co Vs Lawson Jack (1998) 4 NWLR Part 545, Page 249 at 279-280 and Crown Flour Mills Ltd vs. Olokun (2007) All FWLR (Pt. 393) 24 @ 54 C-E
Counsel further submitted that the appellant had raised three issues before the trial Court to wit.
1. Whether the conduct of the Plaintiff is enough to cause the Plaintiff to be dismissed having regard to the provisions of the Defendant’s staff conditions of service handbook?
2. If the answer to the issue above is in the negative, whether the Plaintiff has not proved his case upon the preponderance of evidence available to this Honoruable Court?
3. If issue 2 above is answered in the affirmative, whether the Plaintiff is not in addition to other reliefs sought entitled to re-instatement; having regard to the fact that his employment is one clothed with statutory flavor?
Learned Counsel referred to the relevant portion of the judgment of the lower court and submitted that the learned trial Judge did not consider all the issues raised by the appellant. Counsel further contended that the issues of likelihood of bias and fair hearing considered by the learned Judge were not raised by the appellant. Counsel argued that the Appellant’s grouse was that the respondent did not follow the proper procedure stipulated in the respondent’s Staff Conditions of service Handbook before the dismissal. Counsel examined these conditions as stipulated in the Hand book Exhibit 9 and submitted that the trial judge gave no consideration to the issues. Counsel relying on the cases of Metal construction (W.A) Ltd Vs Milgore (1975) 6-9 Sc. 163 and State v. Oladimeji (2003) 14 NWLR Part 839 Pages 75 paragraphs B to D contended that a court should not sidetrack a point put forward by a party in pursuit of its side of the case. Counsel finally submitted that the learned trial judge did not consider all material issues raised before it but rather went on a voyage of discovery and considered issues extraneous to the issues placed before it by the appellant and made out an entirely different case from the one with which the Appellant had approached the court. Counsel urged the court to hold that the learned trial judge erred in law when he failed to consider all the issues raised and canvassed in the case and to set aside the judgment of the lower court.
On issue No.2, Learned Counsel submitted that the evidence adduced by the Appellant at the lower court outweighs that of the Respondent. He submitted that if put on an imaginary scale and weighed together, the evidence adduced by the Appellant to the effect that due process was not followed by the Respondent before he was dismissed outweighs the evidence adduced by the Respondent that due process was adhered to. Learned Counsel further submitted that Exhibit 9 (The Respondent’s staff conditions of service handbook) contains the Respondent’s code of conduct and disciplinary measures to be adopted in dealing with erring employees of the Respondent. He contended that the Appellant was dismissed from service illegally, and that the provision of Section 3.4.5 (iii) of Exhibit 9 was not followed. Counsel argued that the lower court was not in doubt as to the fact that the requisite 3 (three) warnings prescribed by the Respondent staff conditions of service handbook were not issued to the Appellant before he was dismissed contrary to the provisions of Exhibit 9, clause 3.4.5 (iii). Relying on Amos Adebayo v Kwasi Karikari Adusei & Anor (2005) All FWLR (Pt. 240)152; Bisimilahi v Yagba- East Local Government (2003) FWLR (Pt.141)1939 @ 1965 E. learned counsel contended that the trial court did not appraise the evidence adduced by the parties. Counsel urged the court to set aside the Judgment of the lower court and enter Judgment in favour of the Appellant as per the Statement of Claim dated 17th day of January 2006.
On issue No. 3, Learned Counsel for the Appellant submitted that the function of a trial court is essentially to evaluate evidence and ascribe probative value thereto. He submitted that evaluation must be for both the plaintiff’s evidence and the evidence of the Defendant. Evaluation of the evidence of just one of the parties is clearly a miscarriage of Justice. Counsel referred to and quoted extensively from many authorities on evaluation of evidence including Hon. Emmanuel Ojo & Anor v Hon.Felix A. Anongo & 9 ors (2004) All FWLR (Pt. 218) 934 @ 948 D; Daniel Awudu & Anor v Rautha Daniel & Anor (2004) All FWLR (Pt. 225) 10 @ 28 D – E; Isaac Gaji & 2 ors v. Emmanuel D. Paye (2003) FWLR (Pt.163) 1 @ 15 A – C.
Learned Counsel further submitted that the learned trial Judge failed to consider, evaluate and make pronouncement on the appellant’s evidence of non-compliance by the respondent with the provisions of their handbook, Exhibit 9 including the requirement of three written warnings within a year for absence from duty for one week without approval. Counsel also submitted that no pronouncement was made by the learned trial Judge on the demeanor of either of the witnesses called by the parties in spite of the fact that the Respondent’s witness at the lower court (DW1) was approbating and reprobating regarding decisions of the Respondent’s Disciplinary committee on the Appellant’s case. Learned Counsel contended that the findings of the learned trial Judge were extraneous to the issues raised by the Appellant and that the Appellant never raised the issue of whether or not there was bias or lack of fair hearing. Counsel contended that there was no analysis and evaluation to justify the learned trial Judge’s conclusion; and that justice cannot be said to have been done. Counsel relying on the case of Crown Flour Mills Ltd & anor v. Pastor Kunle Aluko Olokun (2007) All FWLR (Pt. 393) 24 @45 E-G urged the Court to hold that the trial court had failed to properly evaluate the evidence placed before it, and to set aside the findings of the trial Court.
RESPONDENT’S ARGUMENTS
In reply to the appellant’s submissions on issue No 1, learned counsel for the respondent relying on the case of Okonjo v Njokanma (1991) 7 NWLR (Pt. 202) 131 submitted that it is settled law that when a party submits an issue to the court for determination the court must make a pronouncement on that issue except where the issue is subsumed in another issue. Learned counsel referred again to the three issues submitted by the appellant for determination at the lower court already set out above and contended that the main issue for determination at the lower court was issue No 1. Issues 2 and 3 were dependent on the outcome of issue 1. Counsel submitted that the trial judge considered issue 1 and made a pronouncement on it. Having pronounced affirmatively on Issue No. 1 there was no need for the learned trial judge to consider Issues 2 and 3. While accepting Exhibit 9 (Staff Condition of Service Handbook) as the binding contract between the appellant and the respondent, Counsel argued that all sections of the exhibit are relevant and that none of the paragraphs or sections can be read in isolation or exclusively of the rest of the document. Counsel argued that the appellant’s contention that clause 3.4.1 (c) and 3.4.5 (iii) of the respondent’s staff conditions of service, exhibit 9 which requires that he be given three warnings in a year for misconduct before disciplinary action can be taken against him failed to take into consideration clause 3.4.2(vii) which gives the respondent the discretion to impose any penalty listed in the clause. Counsel submitted that all that was required of the respondent was to follow due process in arriving at their conclusion to invoke clause 3.4.2(vii) of the staff conditions of service to dismiss the appellant. Counsel finally submitted that the lower court did not fail to consider the material issues placed before it before arriving at its judgment.
In response to issue no 2, learned Counsel for the respondent submitted that the court can only adjudicate on the facts presented to it in evidence; that the court has no business undertaking a voyage of discovery in relation to any particular case. Counsel further submitted that the court is not bound to go beyond the facts placed before it before determining any issue. He contended that the main plank of the Appellant’s case was that provision of Section 3.4.5 (iii) of Exhibit 9 was not followed. Learned Counsel also submitted that section 3.4.5 (iii) was not the only provision of Exhibit 9 dealing with discipline of staff and that section 3.4.5 (iii) should not be read in isolation of other provisions rather Exhibit 9 should be read as a whole. Counsel argued that the respondent’s actions were all within Articles 3.4.1, 3.4.2 and 3.4.3 of Exhibit 9. Learned Counsel contended that the allegation against the Appellant of being absent from duty on 6th July 2004 and travelling to Abuja to engage in an unofficial business was serious enough to constitute grave misconduct for which the dismissal was an appropriate punishment. He submitted that the Respondent was within its right in imposing the punishment of summary dismissal as it deemed appropriate to the gravity of the Appellant’s offence. He referred to Section 3.4.2 of Exhibit 9 and urged this court to discountenance the submission of learned counsel for the appellant. He further submitted that the evidence adduced by the respondent at the lower court far outweighs the evidence laid out by the Appellant.
In response to Appellant counsel’s argument on issue 3, learned counsel submitted that it is the duty of the party raising an allegation on non-evaluation of evidence to produce evidence of the issues not evaluated. He relied on the case of Ejoh vs Wilcox (2003) 13 NWLR (Pt. 838) 488 page 510 paragraph C-D. He submitted that the only issue before the lower court for evaluation was the issue raised regarding the conduct of the Appellant that led to his dismissal. He contended that all evidence presented at the lower court was evaluated before the trial Judge arrived at his Judgment. He submitted that there was no other material issue raised for the court below to evaluate. That the refusal of the court below to evaluate the worth of the failure of respondent to give the appellant three warning letters before dismissal proceedings goes to no issue as the said court had accepted that the appellant’s conduct on 6th July 2004 was a misconduct that could attract disciplinary action under section 3.4.2 (vii) of Exhibit 9. Learned counsel submitted that the issue of the Appellant’s employment having statutory flavor did not come into play since the Appellant did not lead evidence in proof of same. He relied on the cases of Jolayemi vs Alaoye (2004) 12 NWLR (PT. 887) 322 amongst others. Relying also on the cases of Usiobaifo v. Usiobaifo (2005) 1 SC (Pt. 11) 60 @ 77and Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt. 840) 323 @ 342E-G, counsel further submitted that the trial Judge has the discretion and privilege to write his Judgment in any style he deems appropriate provided he arrives at the proper final order. He further urged the court to resolve issue 3 in favour of the respondent.
APPELLANT’S REPLY
Counsel on issue 1, submitted that the three issues raised at the lower court are independent of each other and that issues 2 & 3 are not subsumed under issue 1. Counsel submitted that Clause 3.4.2 (viii) of the Handbook which grants the respondent the discretion to impose the penalties set out in the paragraph for misconduct as it considers appropriate depending on the gravity of the offence is a general provision while the hand book made provision for specific offences and its attendant punishment. Counsel argued that the appellant’s offence was that he was absent from work for one day which offence is provided for by clause 3.4.1 ( c ) and requires absence from duty for one week to render the offender liable to dismissal. Counsel submitted that these issues and others such as the appellant’s argument that his employment was clothed with statutory flavour were not pronounced on by the trial judge. Counsel submitted that the failure to consider all these issues occasioned a miscarriage of justice.
On issue 2, Learned Counsel in his reply submitted that the provisions of clause 3.4.2 of Exhibit 9 relied upon by the respondent to justify its actions was totally irrelevant to the issue in discourse especially having regard to the contents of Exhibit 5 (query letter).
On issue 3, learned counsel reiterated and reaffirmed his earlier submissions and further submitted that the Judgment of the learned trial Judge did not show any form of evaluation of any evidence. He submitted that a trial Judge has the discretion to write his Judgment in any style he deems appropriate provided the rule that every Judgment must evaluate evidence is adhered to. Learned counsel submitted that the authorities cited by learned counsel for the respondent regarding the trial Judge’s style of Judgment does not support the respondent’s argument and urged the court to resolve issue No.3 in his favour. He relied on the case of Strabag Construction Nigeria Ltd vs Ibitokun (2010) All FWLR (Pt 535) 203 @ 225 – 226. He further submitted that the argument of learned counsel for the respondent on issue of whether or not the appellant’s employment is one clothed with statutory flavor is untenable because the respondent failed to deny same in its pleadings or challenge same during cross-examination. He submitted that admitted facts in a pleading need no further proof.
RESOLUTION
It is trite law that a court has a duty to consider all material evidence and issues raised during the trial. This point has frequently been emphasized in many judicial authorities of the apex court. See Samba Petroleum Ltd & Ors v U.B.A. PLC & Ors (2010) 6 NWLR 530 @531; BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 @ 522 where Uwaifo JSC observed:-
“It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
See also ORJI v PDP (2009) 14 NWLR (Pt 1161) 310 @408; KARIBO V. GREND (1992) 3 NWLR (PT.230) 426 @441; OSOSANA V. AJAYI (2004)14 NWLR (PY.894) 527 @ 549; OKONKWO V. UDO (1997) 9 NWLR (PT.579) 16 @ 20.See also the court of appeal decisions cited in the appellant’s brief mentioned above.
If however as pointed out by the appellant and in the above Supreme Court authority, the failure to pronounce on all issues raised did not lead to a miscarriage of justice or if the issues were not crucial then the decision will not be tampered with by an appeal court.
Looking at pages 232 – 238 of the record of appeal containing the judgment of the trial court, one cannot help but concede that six pages is rather too little to enable a judge exhaustively deal with all the issues raised in the case. Indeed after setting out the evidence led in the case by the two witnesses, one for the appellant and one for the respondent, the learned trial judge at page 237 of the record in 14 lines gave his judgment in the following words:
“I see no reason to set aside the findings of fact in relation to the enquiries and proceedings conducted by the Defendant following upon the report of the Plaintiff’s misconduct.
The Courts are more interested in the procedure by which staff are disciplined and the availing or lack of the staff’s opportunity to be heard.
Plaintiff has not established the likelihood of bias and therefore I do not view as decisive the absence of a record of proceedings of the disciplinary committee to review or assess in the hearing of this suit.
I agree that the letter and spirit of the staff handbook, Exhibit 9 was not violated; and the grievousness of an offence may occasion an abridgment of proceedings or procedure. What is of overriding importance is the opportunity of an accused staff to be heard on the allegations made against him or her.
“I find the Plaintiff was certainly not denied an opportunity to be heard.
Suit dismissed”
I am of the view that the trial judge ought to have done a little more evaluation of the evidence led in the case or a little more explanation as to why the appellant’s case was bound to fail in order to put the mind of the appellant to rest that due consideration was given to all the issues he raised. Apart from being given an opportunity to be heard and the assurance that the appellant was given fair hearing, it is also the duty of the court to consider the complaint whether the respondent complied with the conditions of service with the appellant in dismissing him from its employment. It is not necessary that the appellant should establish a likelihood of bias before the court can consider whether the dismissal was in consonance with the appellant’s conditions of service. In spite of this apparent error in the reasoning of the trial judge, he did albeit unusually summarily consider whether the respondent complied with the conditions of service. It appears also that the appellant created room for the trial judge to be so brief in handling the issues the way he did by the manner the appellant formulated his issues for determination in the lower court. In order to make the point clearer, I will once again reproduce the issues as formulated in the lower court:
1. Whether the conduct of the Plaintiff is enough to cause the Plaintiff to be dismissed having regard to the provisions of the Defendant’s staff conditions of service handbook?
2. If the answer to the issue above is in the negative, whether the Plaintiff has not proved his case upon the preponderance of evidence available to this Honorable Court?
3. If issue 2 above is answered in the affirmative, whether the Plaintiff is not in addition to other reliefs sought entitled to re-instatement; having regard to the fact that his employment is one clothed with statutory flavor?
Obviously if in considering the issues, the answer to issue 1 is positive; in other words if the trial judge takes the view that the conduct of the plaintiff was indeed enough to cause the plaintiff to be dismissed having regard to the provisions of the defendant’s staff conditions of service handbook, then there is no need for the learned trial judge to consider issues 2 and 3. This was exactly what happened in the case. However the question that begs for answer is whether the learned trial Judge in dealing with issue No 1 considered all material facts surrounding the issue. It is not in dispute that the Appellant’s terms of employment was regulated by the Respondent’s staff conditions of service hand book Exhibit 9. It is also not in dispute that the allegation against the Appellant which forms the basis for his dismissal is as contained in the query Exhibit 5 issued to him by the Respondent. The appellant in his arguments focused only on the fact that he was absent from duty for only one day when clause 3.4.1 ( c) of the hand book requires that the employee must have been absent from duty for one week without authority before disciplinary action can be taken against him. The case of the appellant does not fall within this clause of the hand book. This is because apart from being absent for one day, the allegation as shown in the query, Exhibit 5 at page 174 of the record of appeal, is that the appellant absented himself from duty without leave and travelled out of station to Abuja to transact unofficial business on behalf of another organization by the name STOP-HERE AVIATION SERVICES LIMITED. The query further stated that the appellant was alleged to have admitted being in business relationship with the said organization for purposes unconnected with the furtherance of the interest of the respondent. This apparently is a serious misconduct far beyond mere absence from duty for one day. The appellant consequently is in grave error to have focused only on the fact that he was absent from duty for one day. He was also wrong to be looking at the part of the handbook that deals with discipline for absence from duty which is a minor offence requiring warning after one week’s absence and disciplinary action after three written warnings for misconduct within one year.
Clause 3.4.2 of the Respondent’s Handbook provides:-
“In the event of any infringement of the rules and regulations by an employee or of any misconduct, the Agency has the right to impose the following penalties as considered appropriate, to the gravity of the offence:-
(i) Warning /Reprimand
(ii) Suspension and loss of pay for the period of suspension
(iii) Deferment or loss of increment
(iv) Fines and Surcharges
(v) Reduction in Rank, Seniority or Salary
(vi) Termination
(vii) Summary dismissal
The view of the learned trial Judge was that the respondent considered the misconduct of the appellant grave enough to justify the dismissal, thus answering issue 1 in the lower court in the affirmative. The view of the trial judge is that such a decision is one which only the respondent as the appellant’s employer can make. The query, reply to the query, letter of suspension from duty, and the letter of dismissal are at pages 174, 175, 176 and 177 respectively of the record of appeal. A careful perusal of these exhibits reveal that the concern of the respondent is not so much with regard to the appellant’s absence from duty as with the fact that he travelled to Abuja to transact unofficial business on behalf of another organization. The appellant tried to explain his action in his reply to the query, exhibit 6. He concluded thus:
“Sir, it is true I travelled to Abuja on the said date but it was after the close of work. I am indeed very sorry I did not take proper permission from my boss. I pray you sir, this will not repeat itself again. I also pray the Management to please find it in their heart to forgive me.”
The respondent rejected the plea of the appellant for forgiveness. He was suspended by exhibit 7 which read in part:
“Sequel to your involvement in a case of clearing of aircraft for Stop-Here Aviation Services Ltd and operation of VP-BPC F900 of 6th July 2004; I am directed to inform you that a prima facie case of gross misconduct has been established against you.
The Management has decided to place you on indefinite suspension without pay with immediate effect in line with the provision of the staff Conditions of service Section 3.4.5 E (ii) while the case is being referred to the appropriate Disciplinary Committee for determination……”
After due consideration by the appropriate disciplinary committee, the appellant was dismissed pursuant to clause 3.4.2 of Exhibit 9. In the circumstances outlined above, can it be said that the Judgment of the lower court was against the weight of evidence proffered before it. I think not. The learned trial judge was right in his conclusion that he saw no reason “to set aside the findings of fact in relation to the enquiries and proceedings conducted by the defendant following upon the report of the Plaintiff’s misconduct.” The respondent as the employer of the appellant followed due process as outlined in the conditions of service and found the appellant guilty of gross misconduct and accordingly dismissed him from their employment. It is not the business of the courts to determine otherwise. Provided the respondent acted within the terms governing the contract of employment between the parties and the appellant was given fair hearing, the court cannot interfere. My view therefore is that in spite of the brevity of the judgment of the learned trial judge, he considered what was relevant for the judgment in accordance with the issues submitted to it by the appellant at the hearing. If any issue was not considered, it is not relevant as there has clearly been no miscarriage of justice. From the evidence led as shown in the record of appeal, the judgment is not against the weight of evidence.
One of the issues which the appellant raised at the trial which he said was not pronounced on by the trial judge was the matter of his employment being one with statutory flavour entitling him to reinstatement. An employment is said to have statutory flavour where the terms and conditions of the contract of employment or service are specifically provided for by Statute or regulation made there under. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NWLR 128; Fakuade v. O. A. U. T. H (1993) 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bay v. Public Service Commission (1981) 1 S.C. 40; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; and Udo v Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116.
There was no need for the trial judge to make any pronouncement on this issue having resolved that the employment of the appellant was properly determined.
The appellant further claimed that the trial judge rather than make findings on the issues placed before it by the appellant made out an entirely different case by considering extraneous issues. It is true that it was never in contention at the lower court whether or not the Appellant was accorded fair hearing before he was dismissed, neither was the issue of bias raised by the parties. The appellant’s grouse was that the respondent did not follow due process in accordance with his conditions of service in dismissing him. It has already been shown above that the respondent followed due process in accordance with the conditions of service exhibit 9. It is indeed the appellant who misconstrued the issues by dwelling on the sanctions in the conditions of service for absence from duty for one day when his employers were more concerned with his travel to Abuja to transact unofficial business on behalf of another organization without permission. While the trial court made observations about fair hearing which it must be conceded is usually the main concern of courts whenever the issue of wrongful termination or dismissal from employment is under consideration, and likelihood of bias; it certainly was not in issue in this case. The trial judge did however also pronounce on the main issue of whether the dismissal was in accordance with the conditions of service. The deviation did not occasion any miscarriage of justice neither did it prejudice the appellant in any way. The submission of Learned Counsel for the Appellant that the Respondent’s staff handbook was violated lacks merit. An employer has the right to discipline its staff/employee. An employer can also terminate the contract of employment with his employee at any time and for any reason or for no reason at all provided the terms of contract of service between them are complied with. See Olaniyan & 2 Ors v University of Lagos & Anor. (1985) 2 NWLR (Pt. 9) 599 @ 612; Fakuade v O. A. U. T. H (1993) 5 NWLR (pt 291) SC 47.
A court cannot impose or foist an employee on an unwilling employer. See Union Bank Of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664, Ziideeh v Rivers State Civil Service Commission (2007) 3 NWLR (Pt. 1022) 554; (2007) LPELR-3544(SC).
Clause 3.4.2 of Exhibit 9, the Respondent’s staff handbook provides for penalties in the event of any infringement of the rules and regulations contained therein. It also provides for penalties in the event of misconducts mentioned in clause 3.4.1. The respondent was within its right in imposing the punishment of summary dismissal as it deemed appropriate to the gravity of the appellant’s offence. The dismissal of the Appellant was in accordance with the Respondent’s staff handbook. The three issues formulated by the appellant from the grounds of appeal are resolved against the appellant.
In the final result, this appeal fails and it is accordingly hereby dismissed. The judgment of the court below dismissing the appellant’s action is hereby affirmed. I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A.
I agree with the opinion and conclusion that this appeal is bereft of merit, and I accordingly dismiss same, while affirming the judgment of the Lower Court.
I abide by the consequential order made, that there shall be no order as to costs.
FATIMA AKINBAMI, J.C.A.: I was privileged to read the lead judgment of my learned brother IYIZOBA, J.C.A. just delivered. I agree that the appeal lacks merit and should be dismissed. I too would dismiss the appeal and affirm the judgment of the lower court.
Appearances
VICTOR OPARA ESQ. with C.G. AZUATILAM ESQFor Appellant
AND
J. B. OKORJI ESQ.For Respondent
