MUSIBAU OLATIDOYE ADENIYI v. EJIGBO LOCAL GOVERNMENT
(2013)LCN/6533(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of November, 2013
CA/I/187/2010
RATIO
ESSENCE OF INTERPRETING STATUTES
The object of interpreting statute or instrument is to ascertain the intention of the legislature that had enacted the law or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. See: Schroder & Co. vs. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (pt. 101) @ 12. Per SOTONYE DENTON WEST, J.C.A.
JUSTICES:
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
MUSIBAU OLATIDOYE ADENIYI – Appellant(s)
AND
EJIGBO LOCAL GOVERNMENT – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of A.O. Ogunlade J. delivered on 03/07/2009 at the Ejigbo Judicial Division of the High Court of Osun State.
The appellant who was Plaintiff at the Court below was an employee of the Respondent. The Appellant was an Assistant Executive Officer and was assigned as a payment voucher clerk attached to the Primary Health Centre (PHC) of the Ejigbo Local Government. The respondent alleged that the appellant defrauded it to the tune of Five Hundred and Twenty-Seven Thousand, One Hundred and Eighty-Nine Naira, Forty-four Kobo (N527, 189.44K) by manipulation of payment vouchers and collection of some staff salaries. This was denied by the appellant. The respondent after issuing the appellant with a query on the missing money set up a five man “panel of inquiry to investigate the allegation of stealing against Mr. M.O. Adeniyi, an Assistant Executive Officer (Account) on Grade Level 06 with the Local Government.
Between the setting up and the conclusion of the work of the panel of inquiry, the respondent also reported the appellant along with five others to the police and prosecution for the offence of stealing stated against them in Charge No. MEJ/17C/2003 before the Chief Magistrate Court, Ejigbo. Subsequently, the respondent formally withdrew the charges in the Chief Magistrate Court brought against the appellant and the other five accused persons.
By a letter dated 19/3/2003 and signed by one Alhaji S.O. Salawu (Director of Personnel Management) for Chairman Ejigbo Local Government, the appellant was informed of his dismissal from the service of the Local Government as follows inter alia.
“Following a critical examination of the report and recommendation of a five-man panel of enquiry set up on the allegation of fraud and embezzlement of public fund to which you have been undicted (sic) indicted, I am directed to inform you of your dismissal from the Local Government Service with immediate effect in line with Regulation 39 (f) of the Local Government staff Regulation (1978) as amended…”
Consequent on the above, the appellant on 10/3/2006 issued a writ of summons accompanied by a statement of claim which claimed against the respondent as follows:
1. A declaration that the Plaintiff dismissal as contained in the Defendant’s letter dated the 19th day of March, 2003 in so far as contravening the regulation and guideline and law governing the Plaintiff employment is illegal, unlawful, null and void and of no effect whatsoever.
2. An order of mandatory injunction compelling the Defendant to reinstate the Plaintiff with immediate effect to his position as employee of the Defendant.
3. An order compelling the Defendant to pay the Plaintiff all his unpaid salaries and entitlements from January 2003 when his salary and other emolument were abruptly stopped till the date of judgment and to effect his promotion accordingly as he may be entitled.
Pleadings were filed and exchanged. At the trial, the appellant as Plaintiff testified for himself and called no other witness. The respondent called six (6) witnesses in defence to the appellant’s claims.
The Learned Trial Judge dismissed the appellant’s claim. The Learned Trial Judge concluded his Judgment at pages 106 – 107 of the record as follows:
“The Chairman of the defendant instructed the DDPM to constitute a panel who were mostly Senior Staff of the Commission who conducted the investigation and submitted their findings to the Chairman of the defendant. The plaintiff was given a fair hearing by the panel. I cannot believe his story that he was never invited by the panel. To my mind, the defendant has appropriately applied the salient provisions of the unified Local Government – (staff). Regulations of 1978 as amended in dismissing the Plaintiff as it has been proved beyond reasonable doubt that he perpetrated the fraud”
He concluded:
“The plaintiff is a drowning man who is struggling to grip anything that can rescue him from the impending doom. Evidence placed before me revealed that he truly committed the fraud as his subsequent acts of confessional statement and paying back the first installment of Twenty Thousand Naira (N20, 000.00) strengthened the act of commission. The reliefs he sought are therefore rejected by me and the case is hereby dismissed in its entirety…”
Dissatisfied with this Judgment, the appellant filled a Notice of Appeal (containing three grounds of appeal) before this court on 31/08/2009.
The appellant’s grounds of appeal devoid of its particulars are as follows:
Grounds of Appeal
1. The Learned Trial Judge erred in Law when he held that the allegation of fraud had been proved beyond reasonable doubt against the Plaintiff/Appellant and his dismissal from service thereby justified.
2. The Learned Trial Judge erred in law when he held that the Defendant/Respondent is allowed under the law to terminate the appointment of the Plaintiff/Appellant vide exhibit “A4”.
3. The decision arrived at by the Learned Trial Judge is against the weight of evidence.
The appellant’s brief argument dated and filed on 13/12/2010 was deemed filed on 8/5/2013. Respondent’s brief of argument dated 20/10/2011 and filed on same date was filed on 8/5/2013.
Learned Counsel for the Appellant nominated two (2) issues for determination. They are:
1. Whether having regards to the circumstances of this case the Plaintiff/Appellant was properly and lawfully dismissed by the Defendant/Respondent.
2. What is the remedy available to the Plaintiff/Appellant if the Court finds out that Plaintiff/Appellant has been illegally dismissed?
The learned counsel for the Respondent also formulated two (2) issues for determination.
1. Whether or not the Appellant discharged the evidential burden on him so as to be entitled to judgment on the claims before the Lower Court.
2. Whether or not the judgment is against the weight of evidence adduced.
On issue No. 1, Learned counsel for the appellant, referred to the provision of paragraph 39 (F) of the Unified Staff Regulation 1978 (as amended) upon which the Appellant’s letter of dismissal Exhibit A4 was based. The word ‘Board’, said counsel as it appears in section 39 (f) of the Unified Local Government Service (Staff) Regulation by section 2 of the Interpretation Section means the Local Government Service Board now Local Government Service Commission. Counsel submitted that none of the five men who constituted the panel of enquiry as it appeared on Exhibit D3, the report of the panel was a Board member. That, DW2, Alhaji Tijani confirmed that none of the members of the panel is a member of the Board of the Local Government Service Commission.
Appellant’s counsel referred to the case of Shell Petroleum Dev. Co. (Nig.) Ltd. V. FBIR (1990) 8 NWLR (Pt. 466) 256 at 285 that where provisions of statutes are clear and unambiguous, effect should be given to them in their ordinary and natural meaning. He also referred to the cases of Jubril V. Milad, Kwara State (2007) 47 WRN 63 at 88, Obot V. CBN (1993) 2 SCNJ 90 and UBN V. Ugbon (1995) 2 NWLR (Pt. 380) r. 647 for the proposition that where an employee is sought to be removed in a contract with statutory flavour that is a contract of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and of no effect.
Learned counsel for the Appellant submitted that paragraph 39 of the Unified Staff Regulation 1978 (as amended) has not been complied with at all by the Respondent in dismissing the Appellant, Counsel submitted further that the Report of the five man panel of inquiry Exhibit D3 has been disowned (denied) by all the people invited to the panel. That, the appellant as plaintiff said that he was not invited to the panel at all – (page 40 of the record). DW5, Ajala Isaac said at Page 67 of the Record that Exhibit D3 is not a true position of what he said before the panel. That, DW6 also denied what was credited to him in Exhibit D3 at page 68 of the Record. Counsel referred to the famous decision of Lord Denning in Macfoy v. African co. Ltd. (1961) 3 WLR 1405 at 1409 and argued that “something cannot be placed on nothing”. That, the five man panel of enquiry sat without authority, without legal backing and their decision cannot stand.
Furthermore, said counsel, it is only the Board or Commission that can punish or dismiss the Appellant. Paragraph 39 (f) of the Unified Local Government Service (staff) Regulation has not been complied with by the Respondent in dismissing the Appellant.
Appellant’s counsel submitted that where as in the instant case, the dismissal of an employee is based on an allegation of crime, that allegation must first of all be proved before dismissal can stand.
On this, counsel referred to the cases of Oludare V. WAEC (2006) 44 WRN 199 at 200 Savannah Bank (Nig.) Plc. V. Fakokun (2002) 1 NWLR (Pt.749) 544. SPDC v. Olarewaju (2002) 16 NWLR (Pt 792) 38.
This, said counsel, is to give the employee adequate opportunity to explain himself before a tribunal vested with criminal jurisdiction before his employer takes any disciplinary action against him.
After referring to the cases of Garba & ors. v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and Sofekun V. Akinyemi (1980) NSCC (Volume 12) 175, (1980) 5 – 7 S.C. 1, (1981) 2 NCLR 135, Appellant’s counsel submitted categorically, that once a person is accused of a criminal offence, he must be tried in a Court of Law where the complaints of his accuser’s can be ventilated in Public and he would be sure of getting a fair hearing.
Finally, on Issue No. 1, counsel submitted that the Appellant does not hold the appointment at the pleasure of the Respondent. That, to determine the appointment of the Appellant, the Respondent has a duty to comply with the conditions precedent to the termination of the appointment, failing which such termination will be held to be ineffectual and void.
He referred to the cases of NEPA V. ANGO (2001) 15 NWLR (Pt. 737) 627 at 647, 648; and GOVT OF EKITI STATE V. OJO (2007) 16 WRN 56 at 79 – 80
On Issue No. 1, learned counsel for the Respondent submitted that for the Appellant to be entitled to judgment in his favour, he must establish the following:
(a) that his dismissal was unlawful or illegal (i.e., without due process).
(b) that he did not defraud the respondent.
(c) that he was entitled to an order of reinstatement by the Respondent.
(d) that he was entitles to his unpaid salaries and entitlement as well as promotion which might have eluded him between the period of his disengagement and the time at reinstatement.
Respondent’s counsel submitted that the findings of facts made by the Trial Judge cannot be impeached. The Appellant’s guilt, said counsel was proved beyond reasonable doubt before the panel vide oral and documentary evidence which were unassailable – such as Exhibit D4 letter of undertaking and Exhibit D8 receipt of part payment of refund of the embezzled sum.
Learned counsel for the Respondent then referred to the cases of Babatunde Olanrewaju v. Afri Bank Nigeria Pls. (2001) 6 MJSC 68; University of Agriculture v. Grace Eleyi Jack (2000) FWLR (Pt. 20) 720 and Alhaji Yusuf v. Union Bank of Nigeria Ltd. (1996) Delta State Law Report (Pt. 1) at page 31 more particularly the latter as per the statement by Wali JSC that “It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of Law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.” Respondent’s counsel submitted that there is no doubting from the decision in Yusuf v. UBN (Nig) Ltd. (Supra) that the Supreme Court did not lay down in Garba v. University of Maiduguri (supra) an immutable principle that once there is a criminal allegation in the act or conduct of an employee, the employer will have no power to exercise disciplinary measure on him unless his guilt or otherwise is determined in the criminal court.
Respondent’s counsel submitted further that to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated, conveys to him the nature of the accusation against him.
Learned counsel for the Respondent submitted that the decision in Garba v. University of Maiduguri (supra) is by no means an authority which seeks to gag the power of the employer to sanitize its workforce by removing undesirable elements in order to enhance the efficiency of its organization by putting in difficult if not impossible conditions by employing criminal jurisdiction in order to present the employer with a fait accompli.
Counsel submitted that at page 107 of the record of Appeal, the Learned Trial Judge held that the Appellant “truly committed the fraud” and by that finding put paid to the standard of proof of an allegation of crime in a civil action. He submitted that by the trial Judge’s finding, the fraud of the Appellant has been proved beyond reasonable doubt and there is no equivocation about it.
Two points were made by the learned counsel for the Appellant in relation to Issue No. 1. The first is that the five-man panel that tried the Appellant for criminal offence(s) which formed the basis for the Appellant’s dismissal from the service of the respondent was not competent in law to try the Appellant for offences under the Criminal Code/Criminal Law and therefore the dismissal based on such a trial cannot stand.
The second is that in dismissing the Appellant, the Respondent was obliged to comply with the relevant provisions of statute(s) governing the Appellant’s employment and that in particular, the respondent failed to comply with the provision of section 39 (f) of the Unified Local Government Service (Staff) Regulation of 1978 (as amended).
From the facts and circumstances of this case, the Respondent seems not to deny the fact that the Appellant was accused of criminal offences, arraigned the Appellant and five others at the Chief Magistrate Court for Criminal Offences (which charges were later withdrawn) that the five-man panel of enquiry tried the Appellant alone for criminal offence(s) based the dismissal of the Appellant on the guilt of Criminal offence and perhaps in the civil suit instituted by the Appellant in the Court below re-tried the appellant for the same Criminal offence.
My Lords, to make the above point clearer, the preamble to Exhibit D3 the report of the panel of enquiry says that:
“The Director of primary Health care of this Local Government Dr. Abdul Azeez N.B. wrote a letter dated 28th January 2003 on the above subject matter which subsequently led to the setting up of a five men (sic) man panel of inquiry to investigate the allegation of stealing against Mr. M.O. Adeniyi, an Assistant Executive Officer (Account) on Grade Level 06 with the Local Government.”
Exhibit A5, the Appellant’s letter of dismissal also reads in part:
“Following a critical examination of the report and recommendation of a five-man panel of inquiry set up on the allegation of fraud and embezzlement of public fund to which you have been undicted (sic) indicted…”
In addition to the above, but curiously enough the judgment of the Court below where the appellant sought to enforce his Civil right to reinstatement concluded at page 107 of the record as follows:
“The Plaintiff is a drowning man who is struggling to grip anything that can rescue him from the impending doom. Evidence placed before me revealed that he truly committed the fraud as his subsequent acts of confessional statement and paying back the first installment of Twenty Thousand Naira (N20,000.00) strengthened the act of commission. The reliefs he sought are therefore rejected by me and the case is hereby dismissed in its entirety…..”
The pertinent question at this juncture is whether the five-man investigation panel that produced Exhibit D3 could have tried the Appellant for the criminal offence of stealing as described in Exhibit D3 or fraud and embezzlement as was later described in Exhibit A5 and the judgment of the Court below. My answer to the above question and in agreement with the learned counsel for the Appellant is in the negative.
In the first place, the five-man panel that produces Exhibit D3 is clearly an investigating panel even by its own term of reference and was not set up as it were to accuse, allege and discipline the Appellant. Exhibit D3 itself shows that all the invitees to the Panel including the Appellant were merely witnesses, at best to assist the Panel in their fact – finding mission. The Courts have always made a distinction between an investigating Panel and a disciplinary Panel which supposedly would have confronted an accused with the allegations against him and give him an opportunity to cross-examine his accusers on the evidence in support of such allegations. The Courts have particularly frowned on the conversion of such an investigating Panel as in the instant case to a disciplinary Panel by a recommendation against the accused which tends to punish without trial.
Thus, in espousing the fair hearing provision under section 33 of the 1979 Constitution, the Supreme Court in the case of Garba & Ors. V. University of Maiduguri (Supra) drew a distinction between hearing a man as a witness in an administrative inquiry and hearing him in defence of his conduct or integrity.
The apex court further held in that case that fair hearing implies that (a) a person knows what the allegations against him are (b) what evidence has been in support of such allegations (c) what statements have been made concerning those allegation (d) such person has a fair opportunity to correct and contradict such evidence (e) the body investigating the charge against such person must not receive evidence behind his back.
A more important side of the 1st leg of Appellant’s Issue No. 1 is the age long interpretation which the Supreme Court had given in the case of Dr. G.O. Sofekun v. Chief N.O. Akinyemi & ors. (1980) N.S.C.C. 175 at 184 to the provision of Section 22 subsection (2) of the Constitution of the Federal Republic of Nigeria 1963. The Section reads: –
“(2) whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.”
In the case of Sokefun v. Akinyemi & ors. The Supreme Court held at page 184 that:
“Bearing in mind that the word “by a Court” is only used once and at tail-end of Subsection 2 of Section 22, the word “charged” in the first line thereof can only be synonymous with the word “accused”. No other construction is, in my view, possible. Moreover, because of the mandatory provision of the subsection, it seems to me that once a person is accused of a criminal offence, he must be tried in a “Court of Law” where the complaints or his accusers can be ventilated in public and where he would be sure of getting a fair hearing as set out in Subsection (4) to (10) of Section 22 of the Constitution of the Federal Republic of Nigeria, No other Tribunal, Investigating panel or committee will do.”
The latter decision of the Supreme Court in Garba V. University Maiduguri (Supra) unlike the Sokefun V. Akinyemi case that was concerned with the public servant relates to the discipline of University students. However, the Supreme Court realized that the principles of fair hearing are the same and thus applied and espoused its decision, in Sokefun V. Akinyemi (supra) to the case of Garba v. University of Maiduguri (Supra).
In the Garba’s case, a unanimous full Court (of the Supreme Court) presided over by Andrew Otutu Obaseki JSC., along with Kayode Eso, Augustine Nnamani, Muhammed Lawal Uwais, Dahunsi Olugbemi Coker, Saidu Kawu and Chukwuditu Akunne Oputa JJSC., held instructively inter alia as follows:
1. By virtue of Section 33 (1) (4) and (13) of the 1979 Constitution only a Court of Law or a Judicial Tribunal is competent to hear and determine a criminal charge against students of a University. Neither the Vice-chancellor nor any Investigating Panel set up by him has any competence in law to do so.
2. Under the 1979 Constitution, Courts of Law have now been expressly vested with judicial powers and the exclusive jurisdiction of courts over criminal offences is now stronger unlike under the 1963 Constitution where the court were not expressly vested with judicial powers.
3. Offences against the Laws of the land fall outside the jurisdiction of the visitor and the Vice-Chancellor, if a student in a University is for the commission of a crime the student can be proved guilty before a Court or Tribunal.
4. Judicial powers are not vested in private persons, administrative tribunals or other authorities. Any purported exercise of judicial powers by these bodies is a denial of the right to fair hearing under section 33 (1) and (4) of the 1979 Constitution.
5. Since the trial of the erring students for criminal offences or breaches of the criminal code or penal code laws are not within the jurisdiction conferred on the visitor, the purported investigation by the investigation panel and the disciplinary board into allegation of arson, looting, willful destruction of property and indecent assault (all serious criminal offences) and the subsequent expulsion of the appellants as a result cannot stand and therefore a nullity.
6. If a person is accused of committing or having committed a criminal offence, his civil obligation not to commit the offence is called into question. Similarly, his civil right to freedom from arrest, prosecution and punishment is also called into question.
7. Assumption of jurisdiction to try offence where there is none, is a denial of the right of the person accused of committing that offence to fair hearing.
In the Garba’s case (supra), all the other Justices clearly agree with the lead judgment of Obaseki JSC that it has since been the view of the Courts that where a person is accused of committing a criminal offence, he must be taken before a Court of Law for trial and not merely be dealt with by a domestic disciplinary tribunal or as in the instant case by a domestic investigating panel. See also Dr. E.O. Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 at 311.
Learned counsel for the respondent in his brief of argument would seem to suggest that the Supreme Court has since changed its mind or perhaps overruled the case of Garba & Ors. v. University of Maiduguri (Supra) by its decision in Alhaji Lasisi Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR 632. This is not so. Indeed, it is far from the true position of the state of the law. The decision of the Supreme Court in Yusuf v. U.B.B. Ltd. (Supra) was granted by a five – man Panel of the Supreme Court presided over by M.L. Uwais CJN and the lead judgment was delivered by A.B. Wali JSC.
At page, 644 of the Law Report, Wali JSC remarked as follows:
“It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employment summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of Law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. I may go further to say that the provisions of S. 33 have no application to the facts of this case …”
I must quickly point out that contrary to the suggestion of the learned counsel for the Respondent, the above statement by the Supreme Court per Wali JSC is not inconsistent with and does not derogate from the decision of the Supreme Court in the case of Garba V. University of Maiduguri (Supra). If anything, the decision of the Supreme Court in the case of Yusuf V. U.B.N. Ltd. (Supra) though reached on its own facts corroborates and strengthens the wisdom expressed by the apex court in Denloye v. Medical and Dental Disciplinary Committee (Supra), Dr. Sokefun v. Akinyemi & ors. (supra) and Garba & ors v. University of Maiduguri (Supra) to the effect that it is only Court of law or a Tribunal so recognized by law that possesses the competence and the jurisdiction to try offences known to the Criminal Law and/or under the Criminal or Penal codes.
Those same set of cases (as above) do recognize that an inferior Tribunal or Administrative Panel can try employees for misconduct. The case of Yusuf V. U.B.N. (Supra) merely confirms the ability of inferior tribunals to try employees for misconducts as distinguished from criminal offences even when factually the facts leading to the misconduct do bother on criminality.
In Yusuf v. U.B.N. Ltd. (supra), the appellant who had been in the employment of the respondent was dismissed from service for gross misconduct. This was in connection with his involvement in the negligent and irregular paying of the sum of N4, 665.00 which was wrongly diverted to the account of his friend. The dismissal of the appellant was upheld by the trial court and confirmed by the Supreme Court.
A glaring difference between the facts of Yusuf v. U.B.N. Ltd. (supra) and the instant case is that the appellant herein was not dismissed from his employment for reason of gross misconduct but through Exhibit A5 for fraud and embezzlement, the appellant herein was not tried for misconduct but through Exhibit D3 for the offence of stealing. In the circumstances and with great respect to the learned counsel for the Respondent the case of Yusuf v. U.B.N. Ltd. (supra) is distinguishable from the facts and circumstances of the instant case and the case does not in any way help the Respondent to this appeal.
The broad rationale that runs through the decisions of the Supreme Court in the cases of Denloye v. Medical and Dental Practitioners committee (supra), Dr. Sofekun v. Akinyemi & ors. (supra) and Garba & ors. v. University of Maiduguri (supra) is that an employee or student as the case may be, may not be justifiably labelled as “criminal” by an inferior and/or administrative panel or tribunal which has no authority, competence or jurisdiction to try criminal offence; any decision based on such trial of criminal offences strictly so called by such inferior Tribunal is accordingly a nullity.In the instant case, the investigating panel of enquiry set up by the Respondent lacks the competence to find the Appellant guilty of the criminal offence of stealing.
More, the learned counsel for the Appellant was equally right in relation to the second leg of Issue No. 1 that the respondent did not comply with the provision of paragraph 39 (f) of the United Staff Regulation 1978 (as Amended) in dealing with the case of the Appellant.
The paragraph reads.
“39 – after considering the evidence before it, Board may either summarily dismiss, terminate the appointment of the member of the service or impose on him one or more of the following lesser penalties:
i. Withholding of an increment;
ii. Deferment of an increment;
iii. Reprimand;
iv. Reduction of grade;
v. Reduction of seniority and salary within grade;
vi. Refund of any period monies lost;
vii. Forfeit of salary for any period of absence without leave.
‘Board’ in the 1978 Regulation means the Local Government Service Board now Local Government Service Commission.
In the instant case, there is nothing on record to show that the Local Government Service commission exercised its powers and functions over the case of the Appellant. Indeed, the only authority that is competent to issue the Appellant’s letter of dismissal Exhibit A4 is the Local Government Service Commission. However, and quite contrary to the Regulations governing the Appellant’s conditions of service, Exhibit A4 was issued by one Alhaji B.O. Salawu Director of Personal Management for the Chairman of the Respondent, that is Ejigbo Local Government.
In those circumstances, the dismissal of the Appellant is contrary to statute, wrong in law, unjustified and cannot stand. In the case of Anya v. Iyayi (1999) 7 NWLR (pt. 305) 290 at 315 the Supreme Court per Karibi Whyte JSC spoke thus:
“It has always been the law, and consistent with common sense and the intention of the legislation that where statute confers specific or special powers on any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law.”
Clearly, therefore, in the instant case, where an employee is sought to be removed in a contract with statutory flavour of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statute. Any other manner of termination way is inconsistent with the relevant statute is null and void and of no effect.
See: Jubril v. Milad Kwara State (2007) 47 WRN 63 at 88. Obot v. C.B.N. (1993) 2 SCNJ 90. UBN V. UGBON (1995) 2 NWLR (Pt. 380) 647.
The respondent’s investigating panel was not competent to try the Appellant for an allegation of crime, also the Respondent did not follow the procedure laid down in the Unified Local Government Staff Regulation 1978 (as amended) which governs the Appellant’s conditions of service.
Whichever way one looks at it, the dismissal of the Appellant from service by the respondent was unlawful.
Issue No. 1 is resolved in favour of the Appellant.
On Issue No. 2, learned counsel for the Appellant submitted that it is indeed well settled that where an employee’s service is protected by statute and his employment is wrongly terminated, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported removal should be paid.
Learned counsel for the Respondent did not address the point raised by the Appellant’s counsel but nevertheless concluded in his brief of argument that the trial judge arrived at a just, correct and legally defensible conclusion that the Appellant’s claims were not meritorious.
I do agree with the learned counsel for the Appellant that where an employee’s service is protected by statute and his employment is wrongfully terminated, he would be entitled to re-instatement in his office and in addition, damages representing his salaries during the period of his purported dismissal.
See: Shitta-Bay V. Public Service Commission (1981) 1 SC 40, Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599, Udo V. Cross Rivers State Newspaper Corporation (2001) 22 WRN 53.
Issue No. 2 is also resolved in favour of the Appellant. Having resolved the two (2) issues in this appeal in favour of the Appellant, the appeal succeeds. The Judgment of A.O. Ogunlade J. delivered on 3rd day of July 2009 in Suit No. HEJ/4/2006 in the Ejigbo Judicial Division of the High Court of Justice, Osun State is hereby set aside.
Accordingly, I enter Judgment in favour of the Plaintiff (Appellant) in suit No. HEJ/4/2006. The Plaintiff’s claims in Suit No. HEJ/4/2006 succeeds.
N30, 000 costs of this appeal is awarded to the Appellant.
SOTONYE DENTON WEST, J.C.A.: I have had the advantage of reading the draft of the lead judgment delivered by my learned brother, Owoade, JCA. I agree in entirety with the reasoning and conclusion reached therein.
My learned brother has clearly expanded on the seemingly variants but manifest distinctness in the cases of Garba vs. University of Maiduguri (supra) and Yusuph vs. U.B.N. Ltd. regarding the competence and jurisdiction of Inferior Tribunals or Administrative panel in trying matters of misconduct and others bordering on criminality by a court of law. I wish to throw more light on Issue 1 (a) as formulated by the respondent’s counsel, i.e. that the appellant is obligated to prove that his dismissal is unlawful. A cursory look at Section 39 (F) of the Unified Staff Regulations (1978) as (Amended) shows that only the “Board” that can competently dismiss a staff after considering the evidence before it which in this instance is the Local Government Service Board now Local Government Service Commission.
The object of interpreting statute or instrument is to ascertain the intention of the legislature that had enacted the law or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. See: Schroder & Co. vs. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (pt. 101) @ 12.
The word ‘Board’ is a plain word and according to the Black’s Law Dictionary 8th Edition, is defined as “a group of persons having managerial, supervisory, or advisory powers (Board of Directors).”
Consequently, in Niger Progress Ltd. V. N.E.L. Corp. (1989) 3 NWLR (PT. 107) 68 @ 85 Obaseki, JSC remarked as follows:
“There is no ambiguity in the expressed meaning of the provisions: where words are plain on the face of it, the literal meaning should, in accordance with the cannons of interpretation of contract documents, be given to it.”Stemming from the foregoing and the meticulously dealt issues by my learned brother in his lead judgment, I too set aside the judgment of the lower court and enter judgment in favour of the appellant and abide by all orders therein.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read before now the draft copy of the lead judgment delivered by my learned brother OWOADE, JCA. I am in consonance with the sound reasoning and conclusion reached therein by him.
To my mind, misconduct can in nature possess some elements of criminality but it cannot be labeled a crime if the decision was arrived at through the instrumentality of an administrative tribunal or panel. This is for the obvious reason that it is only the regular courts as provided for and recognized under section 6 (6) of the Constitution of the Federal Republic of Nigeria that are vested with the powers to try criminal offences. Moreover, such criminal trials are as of necessity preceded by due investigation by the police or any other body empowered by statute to carry out the investigation and prosecution of some specified criminal offences. Most often than not these administrative tribunals or panels carry out their functions and arrive at their verdicts without the prior investigative input by the police force. In the case of ANYA vs. IYAYI (1993) 7 NWLR (PT. 305) 290 at 315 the apex court had held that:
“It has always been the law, and consistent with common sense and the intention of the legislation that where statute confers specific or special powers on any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law.”
Indeed an administrative body such as the respondent herein truly lacked the jurisdiction as it were to try the appellant for an allegation of crime. It failed to follow due procedure when it dismissed the appellant from its services. The appeal succeeds and I also award N30,000 cost in favour of the appellant.
Appearances
E. A. GBADEGESIN For Appellant
AND
ROTIMI AKINTOLA For Respondent
