NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. STEPHEN AD ODEY
(2013)LCN/6282(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2013
CA/C/31/2010
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY Appellant(s)
AND
STEPHEN AD ODEY Respondent(s)
RATIO
FACTOR TO ESTABLISH WHERE AN EMPLOYER DISMISSES OR TERMINATES THE APPOINTMENT OF AN EMPLOYEE ON GROUNDS OF MISCONDUCT
An administrative panel can find that the employee has committed acts of misconduct that can lead to dismissal. A law court may or may not find the employee guilty of the charges proffered against him. Where an employee faces many allegations, some of criminal nature and others noncriminal, the blue pencil rule would be applied to sever the criminal from non-criminal allegations. The disciplinary panel would have jurisdiction to hear non-criminal allegations and an employer can dismiss on those findings. See Nigeria Tele-communication Ltd. vs. Awala 4 (2001) 45 WRN page 146.
“Where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if say, and accepted that he committed the act after investigation. University of Calabar V. Essien (1996) 10 NWLR (pt. 477) 225 at 262, Olatunboson V. NISER council (1988) 3 NWLR (pt. 80) 25, Yusuf Vs. Union Bank of Nigeria (1996) 36 NWLR (pt. 457) 632. PER NDUKWE-ANYANWU, J.C.A.
WHEN AN EMPLOYEMENT IS SAID TO HAVE A STATUTORY FLAVOUR
An employment is said to have a statutory flavor when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. Hence, such an employment is said to enjoy statutory flavor. Auchi Poly V. Okuoghae (2005) 10 NWLR (pt. 933) 279 CA, Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599, Shitta-Bey vs. Federal Civil Service Commission (1981) 1 SC 40, Ridge Vs. Baldwin (1963) 2 All ER 66.It is the Respondent who as Plaintiff must prove that his employment has a statutory flavor rather than the defendant. So also must he prove that his dismissal was wrongly? See Nigeria Gas Co. Ltd vs. Audusola (2005) 18 NWLR pt 957 page 292. PER NDUKWE-ANYANWU, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Calabar Division delivered on 31st October, 2008 setting aside the dismissal of the respondent by the Appellant.
The respondent was a staff of the Joint Maritime Labour Industrial Council whose assets and liabilities were transferred to the Appellant after the establishment of the Appellant in 2007.
Sometime in June, 2006, the Appellant discovered some irregularities and started investigations. The respondent was issued with a query to explain the money traced to his account with Fin Bank Plc and many other aspects of the respondent’s activities. Respondent’s answer was not satisfactory to the Appellant who subsequently suspended him. The Respondent was thereafter summoned before the Appellant’s disciplinary committee. The respondent was consequently dismissed on those grounds on 31st day of July, 2006.
After this dismissal, the police on their own charged the respondent to Court for stealing. The victim of the theft did not show up and the respondent was discharged on a no-case submission in Suit No. MC/28C/2007 on 14th day of February, 2007. After the discharge of the respondent, he filed a suit against the Appellant, challenging his dismissal before the Federal High Court, Calabar. The trial Judge set aside the dismissal of the Respondent and held that the decision in the change at in the Magistrate Court operated as estoppel in the whole matter.
Dissatisfied, the Appellant filed a notice and eight grounds of appeal on 25th January, 2010. The Appellant filed its Appellant’s brief on 28th September, 2010 and articulated three issues for determination as follows:
“1. Whether the learned trial Judge was right when he held that the dismissal of the Respondent was based solely on criminal offences which only a court can entertain and as such, a violation of Respondent’s right to fair hearing. (Grounds 2 & 5).
2. Whether the discharge and acquittal of the respondent in a charge of stealing by the Magistrate Court ought to operate as estoppel and a vindication to the Respondent who was dismissed on separate acts of misconduct (Ground 6).
3. Whether the Respondent had established his claim to employment with statutory flavour to warrant an order for reinstatement. (Ground 8).”
The Respondent filed his brief and adopted the three issues articulated by the Appellant.
ISSUE 1:
The learned counsel to the Appellant submitted that the respondent was dismissed after the disciplinary committee which he appeared before found him guilty of serious misconduct to wit false representation, fraudulent conduct and forging of official documents. Counsel argued that Rule 030401 of the Public Service Rules provides as follows:
“Serious misconduct is a specific act of serious wrong doing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.”
Learned counsel contended that the Public Service Rules provides the categories of acts of misconduct which are not closed, so long as they are found to be injurious to the employer’s interest and undermine the confidence in employment relationship: See Osakwe vs. Nigerian Paper Mill Ltd. (1998) 7 SC Pt.11 page 108. Counsel contended that the bulk of the acts of misconduct predicating his dismissal have less criminal profile tending towards deceits and dishonesty as follows.
1. False representative or misrepresentative.
2. Fraudulent conduct or fraudulent act.
3. Forging of official documents and falsification of record.
Each of these grounds of respondent’s misconduct would on its own and independent of the other, constitutes a specific act of serious wrong doing and improper behaviour pursuant to Rule 030401 of the Public Service Rules. Rule 030411(b) Public Service Rules provides thus:
“An officer acquitted of a criminal offence shall not be penalized for any charge of which he/she has been acquitted, but nothing in this rule shall prevent his/her being dismissed or otherwise punished on any other charges arising out of his/her conduct in the matter…”
Counsel submitted that acts of misconduct like false representation and fraudulent conduct are part of the respondent’s series of misconduct constituting such other charges envisaged under Rule 030411(b) above. These arose out of the Respondent’s case and which can stand on their own to sustain a dismissal. In a similar situation in Atadi vs. UBN Plc (2005) All FWLR Pt.285 page 517 where the court held that:
“…the dismissal of the Appellant was a culmination of all the above facts put together, and not only the issue of the missing N40, 000.00 upon which he was charged for misappropriation. In other words, there were series of gross misconduct which the Appellant was liable for.”
See also Arinze vs. FBN Plc (2004) All FWLR Pt.217 page 668 where the Supreme Court affirmed a dismissal on a series of misconduct including forging a doctor’s certificate. A dismissal is therefore sustainable even where crime forms part of a series of misconduct.
Counsel argued that the trial court was rather hasty in holding that the Respondent was dismissed on purely criminal allegations which needed a prior trial by a court of competent jurisdiction.
The Supreme Court in recent cases has corrected the misconception that an employer cannot discipline its employee. Arinze vs. FBN Plc. (supra). The Supreme Court whilst referring to the old cases of Federal Civil Service Commission vs. Laoye and Garba vs. University of Maiduguri put the record straight by holding thus:
“This later case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment as in private employment, the employer can dismiss in all cases of gross misconduct.”
This was affirmed in the case of Maikyo vs. Itodo (2007) All FWLR Pt. 363 page 66 where the court held as follows:
“The contention that the allegation made against the Appellant being criminal in nature, the disciplinary action taken against him should not have been embarked upon until after his trial by a competent court is also untenable. This is because what the appropriate authority needed to ascertain against an officer before taking necessary action under Section 1(1) of the Act include showing that the action to be taken would facilitate improvement in the organization or that the general conduct of the public officer in relation to the performance of his duties has been such that his further or continued employment would not be in the public interest. In the instance case, appropriate authority’s decision on the appellant is covered by and within the provisions of the Act.”
See Maliki vs. Michael Imodu Institute for Labour Studies (2009) All FWLR Pt. 491 page 979. Bamgboye vs. University of Ilorin (1999) 6 SC Pt.11 page 72 where the court held:
“All that the employer is to establish to justify the dismissal or termination of the appointment is to show: (i) that the allegation was disclosed to the employer; (ii) that he was given a fair hearing and (iii) that the panel believed he committed the offence after hearing…”
Counsel submitted that what the employer is required to do is to make sure it complied with the requirements for fair hearing pursuant to Rules 030302-030306.
The respondent did not lead any evidence to show that any procedure concerning fair hearing was breached. The Appellant followed the procedure as prescribed by the Public Service Rules in line with Section 36(1) and (2) of the 1999 Constitution:
“(1). In 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 and constituted in such manner as to secure its independence and impartiality.
(2). Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by a person only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to administering authority before that authority makes the decision affecting that person…”
Counsel finally urged the court to resolve this issue in favour of the Appellant.
The learned counsel for the respondent submitted that the Appellant’s submissions are misconceived and misleading. “Forgery of official documents, false representative and fraudulent conduct” are offences by the Criminal Code. See Section 480, 484 and 419 Criminal Code Law Cap. C16 Laws of Cross River State of Nigeria, 2004. The letter of dismissal specifically stated the reason for the dismissal of the Respondent in clear terms as reproduced hereunder:
“I am directed to convey your dismissal from service of the Council with immediate effect. This is sequel to your indictment by a disciplinary committee involving forgery of official documents, false representation and fraudulent conduct.”
Counsel argued that there is a world of difference between administrative misconducts tainted with ingredients of criminality and allegations that are purely criminal in nature; see Attorney-General Kwara State vs. Ojulari (2007) 1 NWLR Pt.1016 page 551 where the court held:
“Where there is no admission of guilt on the part of an employee accused of not just an administrative misconduct, the employer is obliged to prosecute the employee in the Court to prove beyond reasonable doubt the allegation of crime. This is because administrative misconduct may destroy a person’s name and reputation but a criminal allegation may destroy a person’s name and career. Hence, the need for adjudication by an impartial arbiter, the law court as opposed to domestic tribunal with its attendant limitations.”
The cases cited by the Appellant are distinguishable from the instant case which was based on administrative misconduct sufficient to warrant summary dismissal. See FBN vs. Arinze (2004) All FWLR Pt.217 page 668 where the Supreme Court held:
“Among the reason given at the trial for his dismissal were various cases of insubordination, absenteeism, and fraudulent claim for overtime when he was not on duty. Various letters were sent to him on his misbehavior and he chose not to reply them.”
See also Atadi vs. UBN (2005) All FWLR Pt.285 page 517 which the Appellant’s learned counsel quoted out of con.
Counsel submitted that the allegations against the Respondent are clearly criminal in nature and character and it is only a court of law that can deal with same. Setting up an administrative panel of inquiry is ultra vires the Appellant as enumerated by the Supreme Court in the case of Federal Civil Service Commission vs. Laoye (supra) where Oputa, JSC held:
“When anyone is accused of a criminal offence, he should, in his own interest and the interest of truth and justice be tried by ordinary court of the land, no hush hush inquiry will take the place of open trial. The right to fair-hearing comprehends and includes the right to be heard in open court in defence of one’s character and good name, when accused of a misconduct amounting to a criminal offence.”
See also the older case of Sofekun vs. Akinyemi (1980) All INLR page 153 which held that accusations of a criminal offence does not fall within the purview of Administrative tribunal going by the express wordings of Section 36(2) of 1999 Constitution. See also the holding of the Supreme Court:
“Once a person is accused of a criminal offence, he must be tried in a court of law, where the complaint of his accuser can be ventilated in public and where he would be sure of getting fair hearing as set out in Section 22 of the Constitution of Nigeria. No other trial, investigation panel or committee will do.”
Counsel finally submitted that the trial court was right when it held as follows:
“There is in law a distinction between misconduct and criminal offences upon which a court of law have jurisdiction. The failure to try a person in a court on allegation of a criminal nature such as those in the present case constitutes a flagrant violation of the plaintiff’s fundamental right to fair hearing as enshrined in Section 36 of the Constitution.”
Counsel finally urges the court to resolve this issue against the Appellant.
The Civil Service Rules confers on public servants a legal status that goes beyond that of ordinary master and servant relationship. What this means is that a public servant cannot be removed without strictly complying with CSR Okocha vs. CSC Edo State (2004) 3 NWLR Pt.861 page 494, which:
Thus, a public officer can be dismissed only if the following Procedure is followed: (a) the officer shall be notified in writing of the grounds on which it is proposed to dismiss him and he shall be called upon to state in writing, before a day to be specified, which day must allow a reasonable interval for the purpose, any ground upon which he relies to exculpate himself; (b) the matter shall be investigated by the appropriate authority with the aid of the head of the officer’s department, and such other officer or officers as the appropriate authority may appoint; (c) if any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses; (d) no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto; (e) if the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him, and (f) if the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Rule 04107 of the Civil service Rules, Iderima V. R.S.C.S.C (2002) 1 NWLR (pt. 749) 715.
Notwithstanding the above statement of law, the appropriate authority may dismiss or remove a public officer summarily from his office, or retire or require the public officer to compulsorily retire from service, if satisfied that; (a) it is necessary to do so for improvements in the organization to which the officer belongs; (b) by reason of age; (c) ill-health; (d) where the officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or (e) general conduct of the public officer has been such that his continued employment would not be in the public interest. Section 1 (1) of the Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation of Nigeria, 1990, Tyonzughul V. A-G., Benue (2005) 5 NWLR (pt. 918) 226, N.E.P.A V. Ososanya (2004) 5 NWLR (pt. 865) 601, Maikyo V. Itodo (2007) 7 NWLR (pt. 1034) 443.
Where a public or civil servant is removed from office, what the law courts would enquire, is whether the process of removing such an officer was done according to the provisions of the law.
Once it is established that the dismissal, retirement or termination of a public officer is in accordance with the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984, (now Public Officers Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria 1990 a trial court is by section 3(3) of the Decree, divested of jurisdiction to enquire into such dismissal, retirement or termination. Maikyo V. Itodo (2007) 7 NWLR (pt. 1034) 443, N.E.P.A Vs. Ososanya (2004) 5 NWLR (pt. 865) 601.
The respondent in his statement of claim paragraphs 13-21 recapped hereunder for ease of reference:
“13. On or about the 24th day of June, 2006, the plaintiff received a letter dated 23/6/2006 and entitled: “RE: MACWILLS & COMPANY LIMITED APPROVAL AS A DOCK LABOUR EMPLOYER” in which it was alleged the plaintiff delivered a letter reference JOMALI/HQ/DLS/DA/L4 of 5/12/2005. The said letters are pleaded and 1st defendant is put on notice to produce the original of the letter dated 5th December, 2005 at the trial.
14. Plaintiff states that he promptly made his representation to the defendant in a letter dated June 20, 2006 and denied any involvement in the allegations contained in the 1st defendant’s letter of 23/6/2006. The 1st defendant is put on notice to produce the original of the plaintiff’s letter at the trial.
15. On or about the 29th day of June, 2006, and to his surprise, plaintiff received a query reference JOMALIC/DDEZ/002 of 28/6/2006 alleging that payments made into plaintiff’s First Inland Bank Account were in respect of the alleged registration of Macwils & Co. Ltd. as a Dock Labour Employer. The said query is hereby pleaded.
16. By a letter dated 29/6/2006, and delivered to the 1st defendant on 30/6/2006, the plaintiff replied to the query and explained the circumstances surrounding any payments into his account. The defendant is put on notice to produce the plaintiff’s reply to query dated 29/6/2006.
17. Plaintiff states that on Monday, the 3rd day of July, 2006, the 1st defendant by letter reference JOMALIC/HQ/Q.4 suspended the plaintiff from duty indefinitely on the allegation that plaintiff was “a party to the issuance of fake allocation letter for Tally Clerks and Security to Macwills & Co. Ltd.” and for falsification of official document. The said letter is hereby pleaded.
18. The plaintiff was further requested to appear before a disciplinary committee and ordered to handover all Council’s property in his possession to the Ports Officer, Calabar.
19. The plaintiff appeared before the disciplinary committee and eloquently debunked the false and malicious/criminal allegations against him.
20. Before the 1st defendant took the decision to and or communicated the decision of the disciplinary panel to the plaintiff the defendant vide a letter reference JOMALIC/ALO dated 25th July, 2006, requested the Inspector General of Police to investigate the case of “Gross Misconduct” against the plaintiff who was referred to as former staff of the 1st defendant. The 1st defendant is put on notice to produce a copy of the said letter to the Inspector General of Police at the trial.
21. By a letter reference JOMALIC/HQ/AD/D12 dated the 31st day of July, 2006, the 1st defendant dismissed the plaintiff from the service of the defendant on grounds of indictment by the Disciplinary Committee involving forgery of official documents, false representation and fraudulent conduct.”
These paragraphs clearly show that the provisions of the law were strictly adhered to. The respondent was notified of what he was up against by the query. He answered the query. There was opportunity for further queries and further replies before he was eventually dismissed. This shows that the respondent was given a fair hearing and that is all the law requires of the Appellant. The Appellant also must show that the action to be taken would facilitate improvement to the organization, or that the general conduct of the public officer in relation to the performance of his duties has been such that further or continued employment would not be in the public interest. Maikyo vs. Itodo (2007) 7 NWLR Pt.1034 page 443.
It would be recalled that the respondent had a series of queries issued to him of which he replied. The Appellant was not satisfied with his replies hence his dismissal. The list of what constitutes gross misconduct is long and all encompassing. During the internal investigation, the management of the Appellant also invited the Inspector General of Police to investigate some aspects of the respondent’s conduct. Once a report is made to the police, the appellant has no hand in what the outcome of the criminal investigation may be. However, the Appellant has a right in continuing its own administrative investigation. That the Appellant did and found the Respondent guilty of misconduct which necessitates his dismissal from office.
As I stated earlier what a trial court is expected to do is to enquire into the investigation. Whether it was conducted according to the provisions of the Law. As pleaded by the Respondent the provisions of the law was adhered to strictly.
The Respondent did not complain about the investigative panel. It appears that the Respondent was accorded fair hearing. The Respondent had nothing to complain about the investigation and final dismissal. The respondent only filed this suit when the Magistrate Court discharged him of the criminal prosecution therein. He was discharged alright, but not for the administrative misconducts. The two issues are distinct and different. They are independent of each other.
An administrative panel can find that the employee has committed acts of misconduct that can lead to dismissal. A law court may or may not find the employee guilty of the charges proffered against him. Where an employee faces many allegations, some of criminal nature and others noncriminal, the blue pencil rule would be applied to sever the criminal from non-criminal allegations. The disciplinary panel would have jurisdiction to hear non-criminal allegations and an employer can dismiss on those findings. See Nigeria Tele-communication Ltd. vs. Awala 4 (2001) 45 WRN page 146.
“Where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if say, and accepted that he committed the act after investigation. University of Calabar V. Essien (1996) 10 NWLR (pt. 477) 225 at 262, Olatunboson V. NISER council (1988) 3 NWLR (pt. 80) 25, Yusuf Vs. Union Bank of Nigeria (1996) 36 NWLR (pt. 457) 632.
The respondent has not complained about the procedure of the investigation or disciplinary panels. The respondent is only complaining that the misconduct he is alleged to have committed has a criminal flavour and can only be treated by the law courts. An employer may dismiss an employee summarily in these situations which include (a) gross misconduct (b) gross neglect (c) disobedience of lawful order (d) dishonesty and so forth. Yusuf vs. UBN Ltd. (1996) 6 NWLR Pt.457 page 632.
The Appellant in the instant case followed the laid down procedure of the law. The respondent did not complain of fair hearing as it was not breached.
The Appellant was right in dismissing the respondent having followed the laid down procedure. The twin pillars of natural justice were adhered to. This issue is therefore resolved in favour of the Appellant.
ISSUE 2:
Counsel submitted that the respondent was charged to court for defrauding one Chief Akpan William Essien of N4.7m after the Appellant had dismissed the Respondent. The victim of the fraud did not turn up and thereafter, the magistrate proceeded to discharge and acquit the Respondent. Counsel argued that the respondent’s dismissal was not based on the stealing charge but for other cases of misconduct. Counsel referred the court to rule 030411(b) which provides as follows:
“An officer acquitted of a criminal offence shall not be penalized for any charge of which he/she has been acquitted, but nothing in this rule shall prevent his/her being dismissed or otherwise punished on any other charges arising out of his/her conduct in the manner…”
See Atadi vs. UBN Plc (supra) where the court held as follows:
“Learned counsel for the Appellant has made heavy weather of the above provisions professing that the Appellant should have been recalled to duty and paid his entitlements by the respondent after his discharge and acquitted by the Magistrate Court… the dismissal of the Appellant was a culmination of all the above facts put together, and not only the issue of the missing N40,000.00 upon which he was charged for misappropriation. In other words, there were series of gross misconduct which the Appellant was liable for.”
See Oyekola vs. Ajibade (2005) All FWLR pt.242 page 436.
The Appellant was not a party in the Magistrate Court and the issues that culminated in the dismissal of the Respondent was not the same in the charge in suit No.MC/28C/2007. Counsel finally urged the court to resolve this issue in favour of the Appellant.
In reply, the learned counsel to the respondent submitted that the crux of the criminal allegation of criminal misconduct against the respondent is the purported complaint by one Chief Williams Essien of Macwills. The petition of the Appellant to the Inspector General of Police reads as follows:
“REQUEST FOR INVESTIGATION INTO A CASE OF GROSS MISCONDUCT AGAINST MR. STEPHEN ODEY:
Mr. Stephen Odey was a staff of this organization… he was involved in a case of gross misconduct for defrauding one Chief Williams Essien of Macwills Limited… of a sum totaling four million, seven hundred and sixty thousand Naira (N4,760,060.00)…”
Counsel further stated that 6 days after this petition, the Appellant purportedly dismissed the Respondent. Counsel also stated that the supposed victim withdrew his complaint to the police against the respondent. Therefore the respondent was discharged and acquitted. See Savannah Bank vs. Fakokun (2002) 1 NWLR Pt.749 page 599 where the court held thus:
“It is obvious that the Respondent was dismissed on the allegation of crimes. The fact that the Appellant Bank resorted to calling criminal allegation gross misconduct does not by itself rule out the allegation being a crime. To show that the allegations were discovered to be criminal, the bank called in the police after reading the report of the investigation panel. In a case where the dismissal of an employee is based on allegation of crime, such allegation must first of all be proved before dismissal can stand.”
Counsel argued that the Appellant had no evidence against the Respondent. His dismissal was apparently orchestrated by his superiors who felt threatened by the Respondent’s resolve to pursue postgraduate degrees.
Counsel argued that having been discharged and acquitted, the Appellant ought to have complied with Rule 04410 of the Public Service Rules which provides that; an officer who is acquitted of a criminal offence shall not be penalized for any charge of which he has been acquitted. Counsel reiterated that the Appellant had no right to investigate or try any of its staff on allegations of forgery of official documents, false representations or any fraudulent conducts bordering on crime.
Counsel urged the Court to hold that the discharge and acquittal of the respondent vindicated him as the allegation of commission of the criminal offence irrespective of whatever nomenclature used to describe it. This issue should be resolved in favour of the respondent.
The Appellant had a lot of issues against the Respondent for misconduct. The Appellant by a letter dated 25th June, 2006 referred a case of defrauding one Chief Williams Essien of Mcwills Ltd. to be investigated. The Appellant still continued with other misconduct issues against the Respondent which culminated in his dismissal from his employment.
The Respondent’s discharge and acquittal on the criminal charge had nothing to do with the administrative panel or other misconducts by the Respondent.
As I stated earlier in issue one, the employer is enjoined by law to employ the blue pencil rule. This means that where an employee faces many allegations, some criminal in nature and others non-criminal, the rule would be applied to sever the criminal from the non-criminal allegations. Nigeria Telecommunication Ltd. vs. Awala (supra). This is what the employer has done in this case. The criminal charge against the Respondent was dealt with and the respondent discharged and acquitted. The Respondent was only discharged and acquitted on the criminal charge. It has no bearing on the other issues of misconduct.
“Where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after investigation. University of Calabar vs. Essien (1996) 10 NWLR (pt. 477) 225 at 262, Olatunboson Vs. NISER Council (1988) 3 NWLR (pt. 80) 25, Yusuf Vs. Union Bank of Nigeria (1996) 36 NWLR (pt. 457) 632.
The employer in the instant case had fulfilled all the requirements prescribed by law in dealing with the case of the Respondent. Moreover, the respondent did not challenge the procedure adopted by the employer. The respondent only alleged that after this discharge and acquittal by the Magistrate Court he should have been re-instated to his former job. To that I say a categorical No! The respondent was dismissed on other issues of misconduct other than that of defrauding Mcwills Ltd.
The employer had a right to dismiss an employee for misconduct and that right cannot be taken away from an employer where he has observed the rules of natural justice.
An employer is entitled to suspend, retire, terminate or dismiss his or its employee for good, bad reason or even no reason at all. Nitel Plc vs. Akwa (2006) 2 NWLR Pt.964 page 391; Commissioner of works Benue State vs. Devcon Ltd. (1988) 3 NWLR Pt.83 page 407.
This issue is also resolved against the respondent in favour of the Appellant.
ISSUE THREE:
Learned Counsel to the Appellant submitted that the court below ordered a reinstatement of the Respondent. The Respondent is not one whose employment has a statutory flavour. See Idoniboye-Obu vs. NNPC (2003) FWLR Pt.146 page 959 where the Supreme Court stated as follows:
“It seems to me that Appellant may have misplaced his reliance on Olaniyan to contend that his employment for some reason must enjoy statutory flavour whereas, as will be shown, he was occupying a considerably low cadre as a junior staff of grade “C” in the respondent’s employment. It is easy to understand from Olaniyan and Shitta-Bey that the rules and regulation which are claimed by an employee to be part of the terms and conditions of his employment capable of giving it statutory flavour and be of protection to the employee must (1) have statutory reinforcement or at any rate, be regarded as mandatory, (2) be directly applicable to the employee or persons of his cadre (3) be seen to be intended for the protection of that employment.”
Counsel argued that the respondent did not lead evidence to prove that his employment has statutory flavour. See Oyetoki vs. Nigerian Postal Services (2010) All FWLR Pt.504 page 1572 where the court held thus:
“An employment with a statutory flavour is one created and governed by statute. The statute specially created the office and clearly spelt out the procedure for employment and discipline of the employee. It also provides the conditions of service such as tenure, salary and allowance and other fringe benefits. In the category of those whose employment is said to have statutory flavour includes Chairman and members of boards, directors and other senior management staff of Government parastatals, agencies and extra-ministerial departments.”
Counsel argued that the respondent’s employment was like any other employee in the agency. Section 14(3) Nigerian Maritime Administration and Safety Agency Act, 2007 provides:
“14(3) The employment of the Agency’s staff, including its secretary, shall be subject to such terms and conditions as may from time to time be stipulated by the Agency’s Board and contained in the respective staff’s employment contract.”
Chapter 16 of the Public Service Rules, rule 160301 provides thus:
“All appointments to public offices, both senior and junior in Federal Government Parastatals shall be made on the authority of the Boards/councils within the approved manning levels.”
This means that the Respondent was subject to the board which draws up its conditions of service and therefore the Respondent’s employment has no statutory flavour. WAEC vs. Obisesan (2009) All FWLR pt.484 page 1619; Idoniboye-Obu vs. NNPC (supra); Zudeeh vs. River State Civil Service Commission (2007) All FWLR pt 354 page 226.
Counsel finally submitted that the Respondent’s Status as staff whose employment was subject to the terms and conditions of the board from time to time was nothing more than ordinary master-servant relationship. An order for Reinstatement would be, foisting a servant on an unwilling master. The employee can only succeed in damages if the court finds that the employee was dismissed wrongly See Osisanya V. Afribank Nig. Plc (2007) All FWLR pt 360 page 1480.
Counsel urged the court to resolve this issue in favour of the Appellant.
The Respondent’s counsel replied and submitted that this issue was raised for the first time in this appeal. It was not canvassed in the trial court. Also leave of court was not sought to raise it. It therefore means that ground 8 together with issue 3 are incompetent See Kwara State Government V. Oyebiyi (2006) 10 NWLR pt 986 page 631 Omolaye v. The Milad Edo State (2005) All FWLR pt 243 page 629.
Counsel submitted that the Appellant hinged his submission on S.7-12 of the Nigeria Maritime & Safety Agency Act, 2007 which was enacted long after the purported dismissal of the Respondent. Counsel argued that the Appellant did not deny the fact that the Respondent’s employment had Statutory Flavour.
Counsel urged the court to hold that the Respondent’s employment was one with Statutory Flavour and should be re-instated. The Appellant in his reply stated that ground 8 arose from the decision of the court below where it held thus:
“On the issue of Plaintiff’s re-instatement to the Defendant’s employment. It is the court’s opinion that from evidence before it the Plaintiff’s employment has statutory flavor and he should be reinstated forth with” (p.98).
It is therefore competent together with issue three arising thereof. Counsel conceded that, it is true that at the time of Respondent’s employment, the Maritime Labour Act, 2003 was in force and not Nigeria Maritime Administration and Safety Agency Act, 2007. However it does not deter from the fact that the Respondent’s employment does not have statutory flavor. It is the board as provided by Section 8 (5a) Maritime Labour Act which provides, the board shall have power to employ either directly or from public or private service in the Federal such number of employees as may in the opinion of the Board, be required to assist the council-in the discharge of its function under this Act. It, therefore means that the Respondent’s employment has no statutory flavor: WAEC Vs. Obisesan (supra).
A claimant who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts namely: (a) that he is an employee of the defendant; (b) terms and conditions of his employment; and (c) the way and manner, and by whom he can be removed. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these. Nigerian Gas Co. Ltd V. Dudusola (2005) 18 NWLR (pt 957) 292 CA.
From the above, it is important to appreciate that where the termination, retirement or dismissal of an employee/Respondent is wrongful, the Respondent would only be entitled to damages and not Re-instatement NITEL Plc Vs. Akwa (2006) 2 NWLR pt 964 page 391, Isievwore Vs. NEPA (2002) 13 NWLR pt 784 page 417.
An employment is said to have a statutory flavor when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. Hence, such an employment is said to enjoy statutory flavor. Auchi Poly V. Okuoghae (2005) 10 NWLR (pt. 933) 279 CA, Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599, Shitta-Bey vs. Federal Civil Service Commission (1981) 1 SC 40, Ridge Vs. Baldwin (1963) 2 All ER 66.
It is the Respondent who as Plaintiff must prove that his employment has a statutory flavor rather than the defendant. So also must he prove that his dismissal was wrongly? See Nigeria Gas Co. Ltd vs. Audusola (2005) 18 NWLR pt 957 page 292.
Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavor include the following: (a) the employer must be a body set up by statute; and (b) the stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. P.C Business Predd Ltd vs. Gray (1977) ICR 858.
The Appellant was indeed created by statute but the Respondent failed to show where the statute provided for the employment, termination, retirement or indeed dismissal of the employee. It would appear from the above that power resides in the board of the Appellant See Section 14 (3) NIMASA Act which provides thus:
The employment of the Agency’s staff, including its secretary, shall be subject to such terms and conditions as may from time to time be stipulated by the Agency’s Board and contained in the Respective staff’s employment contract
The above does not show that the Respondent’s employment enjoyed that statutory flavor to entitle him to a re-instatement. The Respondent never complained about his mode of dismissal. What it means is that, the procedure adopted by the Appellant was according to the prescribed provisions of the Public Service Rule. The Respondent only came to court to reclaim his job on the presumption that he has been discharged and acquitted of the criminal charge against him and therefore he is entitled to be re-instated.
A servant who complains that his employment has been wrongly brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful. Okomu Oil Palm Co. Ltd vs. Iserbienrhien (2001) 6 NWLR (pt. 710) 660, Idoniboye-Obu vs. N.N.P.C (2003) 2 NWLR (pt. 805) 589.
It is indeed, the Respondent who has the burden of proving that his employment has a statutory flavor. The Respondent has failed to do so and therefore his claim must fail. The trial judge failed to appreciate that the Appellant followed due procedure in dismissing the Respondent of several issues of misconduct whilst referring the criminal issue to the Inspector General of Police.
The three issue articulated by the Appellant have been resolved in his favour. This appeal is meritorious and therefore allowed. The judgment of the trial Judge together with the consequential orders is hereby set aside.
I make no orders as to costs.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading an advance copy of the judgment by my Lord Uzo I. Ndukwe-Anyanwu, JCA, I concur with the conclusion that this appeal should be allowed. The facts have been admirably summarized by my Lord. I do not need to repeat them in this judgment. I shall adopt the arguments of learned Counsel as summarized by my Lord. The respondent/plaintiff pleaded in the original statement of claim filed on 14th September, 2007 as follows:
“21. By a letter reference JOMALIC/HQ/AD/D12 dated the 31st day of July, 2006, the 1st defendant dismissed the plaintiff from the service of the defendant on grounds of indictment by the Disciplinary Committee involving forgery of official documents, false representation and fraudulent conduct.
22. The said letter of dismissal was delivered to the plaintiff by post through his wife on or about the 14th day of September, 2006.”
The appellant also pleaded in paragraphs 4 and 9 of the statement of defence as follows:
“4. NIMASA admits paragraph 22 of the claim but only to the extent that the plaintiff’s dismissal was based on the overwhelmingly established evidence of gross misconduct as contained in the findings of the Disciplinary Committee.
9. NIMASA will at the trial of this action contend that the plaintiff voluntarily submitted himself to the proceedings of the in-house Disciplinary Committee that looked into the case of gross official misconduct, and furthermore, the plaintiff was quite evidently satisfied as to the composition and impartial disposition of the said committee and he took no objection to its composition.”
Though the respondent subsequently amended the statement of defence the facts pleaded in paragraphs 21 and 22 of the original statement of claim remained unamended. The letter of 31st July, 2006 dismissing the respondent from the services of the appellant at page 31 of the printed record reads as follows:
“JOINT MARITIME LABOUR INDUSTRIAL COUNCIL (JOMALIC)
(Established Under the Nigerian Maritime Labour Act, 2003)
Head Office:
15B Aolowo Road,
P.M.B. 80088, Ikoyi, Lagos.
JOMALIC/HQ/AD/D12
31st July, 2006.
Mr. Stephen Adi Odey,
C/o Mrs. Monica Ogeyi Odey,
Federal Psychiatric Hospital,
Calabar.
DISMISSAL FROM SERVICE
I am directed to convey your dismissal from the services of the Council with immediate effect.
This is sequel to your indictment by a disciplinary committee involving forgery of official documents, false representation and fraudulent conduct.
The Public Service Rules 04406 clearly stated that “the ultimate penalty for serious misconduct is dismissal. An officer who is dismissed forfeits all claims to retiring benefits, leave or transport grant, etc.”
Consequently, you will not be entitled to any form of severance pay in lieu of notice.
You are to return any Council’s property in your possession to the Ag. Deputy Director, Eastern Zone through the Port Officer, Calabar.
Signed
Hamisu Gambo
For: Executive Chairman.”
Under pleadings a reference to a document brings into the pleading the whole contents of that document. See Abed Bros vs. Niger Insurance (1974) 4 U.I.L.R. (Pt.3) 317 at 327; Lawal v. G.B. Ollivant (1972) 3 SC 124 at 130.
The grounds for dismissal of the respondent from the service of the appellant are “forgery of official documents, false representation and fraudulent conduct.”
Section 4 of the Public Service Rules provides as follows:
“030401: Definition: Serious misconduct is a specific act of very serious wrongdoing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.
030402: SERIOUS ACTS OF MISCONDUCT INCLUDE:
(a) Falsification of records;
(b) Suppression of records;
(c) Withholding of Files
(d) Conviction on a criminal charge (other than a minor traffic or sanitary offence or the like);
(e) Absence from duty without leave;
(f) False claims against Government Officials;
(g) Engaging in partisan political activities
(h) Bankruptcy/serious financial embarrassment;
(i) Unauthorized disclosure of official information;
(j) Bribery;
(k) Corruption;
(l) Embezzlement;
(m) Misappropriation;
(n) Violation of Oath of Secretary;
(o) Action prejudicial to the security of the State;
(p) Advance Fee Fraud (Criminal Code) 419);
(q) Holding more than one full-time paid job;
(r) Nepotism or any other form of preferential treatment;
(s) Divided loyalty;
(t) Sabotage;
(u) Willful damage to Public property
(v) Sexual Harassment; and
(w) Any other act unbecoming of a Public Officer.
030403: Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306.”
These definitions encompass civil and criminal acts that constitute gross or serious acts of misconduct that if proved, the ultimate penalty may result to dismissal as provided under the following paragraphs of the Rules (supra):
“030407: (a) The ultimate penalty for serious misconduct is dismissal. An officer who is dismissed forfeits all claims to retiring benefits, leave or transport grant, etc, subject to the provisions of the Pension Reform Act 2004.
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. Where the officer concerned seeks to evade this official notification, the effective date shall be:
(a) that on which he/she is served with the notification, even though he/she may refuse to acknowledge receipt; or
(b) the date on which the notification is delivered by messenger to his/her recorded address, even though the officer concerned does not himself/herself acknowledge receipt of such delivery; or
(c) the date on which the notification as sent by post to his/her last known or normal address in accordance with the definition of “service by post” in section 26 of the Interpretation Act (Cap. 192).
030411: (a) Nothing shall prevent disciplinary action being taken or continued against an officer whether or not –
(i) criminal proceedings have been instituted with respect to such a person in any court of law in Nigeria or elsewhere or are about to be instituted or are contemplated; or
(ii) the grounds upon which any criminal charge are based or are to be based are substantially the same as those upon which the disciplinary proceedings were or are to be instituted.
(b) An officer acquitted of a criminal offence shall not be penalized for any charge of which he/she has been acquitted, but nothing in this rule shall prevent his/her being dismissed or otherwise punished on any other charges arising out of his/her conduct in the matter, provided that such charges do not raise substantially the same issue as those of which he/she has been acquitted. If the Commission thinks fit, the usual procedure may be followed for the purpose.”
Paragraphs 25-26 of the Amended Statement of Claim shows that the respondent was charged to the Chief Magistrate Court Grade 1 Calabar for stealing the sum of N4, 760,000.00 but discharged and acquitted. The respondent was not prosecuted on charges of false representation and fraudulent conduct arising from the allegations of stealing. Gross or serious acts of misconduct that will attract dismissal of a public servant under rule 030401 includes, “…a specific act of very serious wrongdoing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.” The intention of the lawmaker is to be garnered from the words employed in paragraph 030401. They show that any one, two or more of a very serious wrongdoing or improper behaviour which is inimical to the image of the service which if investigated and proved, may lead to a dismissal.
The alphabet “a”, means inter alia “…one of two different things or people”; or “…”each” or all things of a particular type” etc. See Longman Dictionary of Contemporary English New Edition, 2007 page 1. Thus specific acts of serious wrongdoing and improper behaviour may be more than one, two or three etc. When investigated and proved they may lead to a dismissal. A “wrongdoing” is “in the largest sense, as anything done or omitted contrary to legal duty, considered in so far as it gives rise to liability” per Frederick Pollock, A first Book of Jurisprudence, 1896, page 68.
John Salmond (Glanville Williams, 10th edition, 1947, page 227 says, “A wrong is simply a wrong act – an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to jus)…”
Thus a “civil wrong” is “A violation of non-criminal law, such as a tort, a breach of contract or trust, a breach of statutory duty, or a defect in performing public duty; the breach of a legal duty treated as the subject matter of a civil proceeding.” See Blacks Law Dictionary, 9th edition, page 1751.
In this case, “false representation and fraudulent conduct” on the part of the respondent cannot be said to constitute criminal allegations for which the respondent should have been prosecuted and convicted in a criminal Court before dismissal as was urged in the lower Court and in this Court by learned Counsel to the respondent.
“Fraudulent act” or “conduct” is “Conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude – Also termed dishonest act; fraudulent or dishonest act.” The “misrepresentation” as “1. The act of making a false or misleading assertion about something usually with the intent to deceive. The word denotes not just written or spoken words but also any other conducts that amounts to a false assertion… 2.
The assertion so made; an assertion that does not accord with the facts – also termed false representation.” See also Blacks Laws Dictionary, 9th edition, page 733 and page 1091.
In the Duchess of Kingston’s case (1775-1802) All E.R. Rep. 623, De Grey C.J. held at page 629 that:
“Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal.”
In Restatement of Contract, 2nd edition, 1979 paragraph 162 (1) it is stated that:
“A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion.”
In Derry vs. Peek (1886-1890) All E.R, Rep. 1 Lord Bramwell, sitting in the House of Lords, held at page 6 paragraphs “A” – “B” that:
“…a material misrepresentation, though not fraudulent, may give a right to avoid or rescind a contract where capable of such rescission.”
His Lordship continued at page 7 paragraphs “H”- “I” as follows:
“…a man who makes a statement without care and regard for its truth or falsity commits a fraud: he is a rogue. For every man who makes a statement says, “The truth is so and so, and I know it or believe it. I say I agree to this as I understand it…”
Even in ordinary contracts it was held in Abram S.S. Co. vs. Westville S.S. Co. (1933) A.C. 773 at 781 that a misrepresentation gives the misrepresentee a right to rescind the contract and terminate it ab initio. In contracts of employment where false representation and fraudulent conduct is established by a disciplinary committee upon investigation, an employee whose conditions of service are governed by the Public Service Commission Rules is liable to dismissal. This constitutes a serious act of wrongdoing and improper behaviour which is inimical to the image of the employer. Where this established by a Disciplinary Committee employer is need not prosecute the employee in a criminal Court and secure conviction before effecting his dismissal.
The appellant set up a disciplinary committee to investigate allegations against the respondent. The respondent appeared before the committee and proffered explanation. The appellant was not satisfied with the respondent’s explanation. Though the learned Chief Magistrate discharged and acquitted the respondent for stealing money, the appellant could still have invoked false representation and fraudulent conduct as civil wrongdoings and improper conducts to dismiss the respondent.
Where the Public Service Rules are inapplicable because an employee does not come within the provisions of the Public Service Rules or his employment does not have “statutory flavour”, false representation and fraudulent conduct had always been good and unassailable reasons for the dismissal of an employee. In Cooper’s Outlines of Industrial Law, 6th edition by J.C. Wood, 1972 edition, pages 101 – 102 the learned author put the matter in this manner:
“To justify the dismissal of a servant there must be misconduct, pecuniary or otherwise, willful disobedience or willful neglect. The degree of misconduct, disobedience or negligence justifying dismissal cannot be legally defined; it is a matter for the jury, as will also be the question whether the dismissal was bona fide on those grounds. Yet where the employer is genuinely dissatisfied with his servant and dismissed him the dismissal may be justified though there were, in fact, no grounds for that dissatisfaction.”
See Clouston & Co. Ltd. vs. Corry (1906) A.C. 122; Smith vs. Alien (1892) 3 F. & F.157; (1915) 84 L.J.K.B. 2165. If the misconduct goes to the root of the contract so as to indicate an unwillingness of the employer to continue to be bound by the original terms of the contract the employer can dismiss the employee. The modern test is whether the dismissal was justified. This must vary with the nature of the business or employment and the position of trust held by the employee.
See Jupiter General Insurance Co. Ltd. vs. Ardeshir Bomaji Shroff (1937) 3 All E.R. 67 at page 74. Whichever way one looks at the facts of this case the respondent was rightly dismissed by the appellant.
For these and the fuller reasons given by my Lord, I also allow this appeal. I dismiss the claims of the respondent before the lower Court.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA.
The issues raised for determination have been exhaustively resolved, and I completely agree with the conclusions reached. I also hold the view that the appeal has merit; and I hereby affirm the Judgment of the lower court.
I abide by all the Orders made in the lead Judgment.
Appearances
E. Iyoho Esq.For Appellant
AND
E. Sani Esq.For Respondent
