OBONGANWAN MARY NTEWO V. UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR.
(2013)LCN/6043(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of March, 2013
CA/C/52/2009
RATIO
FAIR HEARING: FAIR HEARING IN EMPLOYMENT MATTERS
”The provisions of fair hearing simply requires that an employee so accused is given adequate notice of the allegations leveled against her to enable her make representative of her defence. A.T.A Poly vs. Marina (2005) 10 NWLR Pt.934 page 487, Yusuf vs. UBA Ltd (1996) 6 NWLR Pt 457 page 632, Ransome Kuti vs. Attorney General Federation (1985) 2 NWLR Pt 6 page 211.PER UZO I. NDUKWE-ANYANWU, J.C.A
JUDICIAL AND QUASI-JUDICIAL PROCEEDINGS OR ADMINISTRATIVE PANEL: DIFFERENCES
It would be pertinent to distinguish between a judicial or quasi-judicial proceedings and an administrative panel. This distinction was aptly described in the classic case of Baba vs. N.C.A.T.C & Anor (1991) 5 NWLR Pt. 191 page 388. The court in this case held that
(a) In a judicial or quasi-judicial proceedings, a ‘hearing’, in order to be fair, must take into consideration the right of the person to be affected and such a person must be given the opportunity:
(i) To be present all through the proceedings and hear all the evidence against him;
(ii) To cross-examine or otherwise confront or contradict all the witnesses that testify against him or his interest;
(iii) To have read before him all the documents tendered in evidence at the hearing;
(iv) To have disclosed to him the nature of all relevant material evidence, prejudicial to the party, save in recognized exceptions;
(v) To know the case he has to meet at the hearing and have adequate opportunity to prepare for defence; and
(vi) To give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through a counsel of his choice. All the above requirements of fair hearing are all necessary and need all be present only where the determination of one’s civil rights and obligations are in issue before a judicial or quasi-judicial proceeding or any other tribunal or body acting judicial. (Kotoye vs. Central Bank of Nigeria) (1989) 1 NWLR (Pt. 98) 419 referred to 1.
Karibi – Whyte JSC continued to hold that
“In domestic tribunal such as this, ……. Neither the Appellant, nor any other person was on trial” See Adigun Vs. Attorney-General of Oyo State (1987) 1 NWLR Pt. 53 page 678.PER UZO I. NDUKWE-ANYANWU, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
OBONGANWAN MARY NTEWO Appellant(s)
AND
1. UNIVERSITY OF CALABAR TEACHING HOSPITAL
2. HON.MINISTER OF HEALTH Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A: (Delivering the Leading Judgment): This is an appeal from the judgment of the Federal High Court sitting in Calabar Cross River State delivered on 2nd June, 2005. The Appellant in this appeal was the plaintiff in the court below. She filed an action in the Federal High Court for a declaration that her dismissal from services of the 1st Respondent was illegal, null and void as she was not accorded fair hearing and also for the failure of the Respondents to comply strictly with provisions of S.9 of the University Teaching Hospitals (Reconstitution of Boards) Act Cap 463 LFN 1990.
The Appellant claimed against the Respondents for the following:
i. A Declaration that the 1st Defendants letter Ref. No UCTH/112/399 dated 24th November, 1999, purporting to dismiss the plaintiff from the service of the 1st Defendant on the directive of the 2nd Defendant is unfair, irregular, unlawful and a breach of the terms of the Federal Civil Service Rules and the University Teaching Hospitals (Reconstitution of Board etc) Act Cap 463 Laws of the Federal, 1990 ad therefore null and void.
ii. An order of the court reinstating the plaintiff in the service of the 1st Defendant.
iii. An order of this court that the 1st Defendant pays to the plaintiff the accumulated half salaries, deducted during the period of the suspension from November 1998 to November 1999.
iv. An order of the court that the 1st Defendant pays to the plaintiff salaries, allowances and benefits from November 1999 until judgment is delivered.
v. The sum of N50,000.00 (One Hundred and Fifty Thousand Naira) as legal fees.
The Respondents as defendant in the lower court filed their statement of defence. At the end if the trial, the learned trial Judge held as follows:
“It is my view that the acts complained of against the plaintiff are those which the Defendants are eminently competent to handle by virtue of section 9 of the Act and which they handled according. The contention of the plaintiff in that regard is therefore not maintainable.
Having thus said, I hold that the dismissal of the plaintiff by the Defendants is in consonance with section 9 of the Act and is therefore lawful. I hold that the plaintiff has not made out a case to warrant the grant of any of the reliefs sought by her. The case lacks merit and it is hereby dismissed.”
The Appellant was dissatisfied hence this appeal. The Appellant filed her notice and six grounds of appeal. She filed her Appellant’s brief on 10th May, 2010 but deemed properly filed and served on 24th November, 2010. In it she articulated two issues for determination as follows:
1. WHETHER THE INVESTIGATIVE PANEL AND THE SPECIAL DISCIPLINARY COMMITTEE SET UP BY THE RESPONDENTS TO TRY THE APPELLANT ARE NOT BOUND TO OBSERVE THE RULES OF NATURAL JUSTICE IN THEIR DELIBRATIONS AND PROCEEDINGS FOR THE FACT THAT IT WAS NOT THE APPELLANT WHO REQUESTED THAT THEY BE SET UP.
2. WHETHER THE RESPONDENTS COMPLIED STRICTLY WITH SECTION 9 OF THE UNIVERSITY TEACHING HOSPITALS (RECONSTITUTION OF BOARD) ACT CAP 463, LAWS OF THE FEDERATION, 1990 BEFORE DISMISSING THE APPELLANT FROM HER JOB.
The Appellant filed a reply to the 1st Respondent brief on 25th February, 2011 but deemed properly filed and served on 21st March, 2011. The Appellant also filed a reply to the 2nd Respondent’s brief on 8th June, 2011.
The 1st Respondent filed its 1st Respondent’s brief on 8th December, 2010. The 2nd Respondent filed its brief on 21st March, 2011 but deemed properly filed and served on the 22nd March, 2011.
On the 23rd January, 2013 all counsel adopted their various briefs. The Appellant’s Counsel urged the court to allow this appeal and both counsel for the 1st and 2nd Respondents respectively adopted their brief and urged the court to dismiss this appeal and affirm the judgment of the trial Judge.
The two issues articulated by the Appellant were adopted by both counsel to the 1st and 2nd Respondents respectively.
ISSUE 1
Learned counsel to the Appellant submitted that the Respondents denied the Appellant a fair hearing in the two panels or committees that tried her case.
The 1st Respondent set up the special investigation panel to try the Appellant on certain allegations of gross misconduct as reflected in a query Exhibit E dated 4th November, 1998. Learned Counsel stated that the Appellant under examination in Chief testified that she appeared before the 1st panel (special Investigation Panel) Appellant agreed that Exhibit E is the term of reference of the alleged offences reduced in writing by way of a query.
Counsel submitted that the query Exhibit E does not contain all the allegations leveled against the Appellant which were not brought to her knowledge. See Adeniran vs. NEPA (2002) 14 NWLR Pt 786 page 30 where the Court of Appeal held as follows:
‘To constitute fair hearing, whether before the regular courts or before tribunals and boards of inquiry, the person accused should:
(a) Know what is alleged against him.
(b) Be present when every evidence against him is tendered.
(c) Be given full opportunity to correct or contradict such evidence”
Counsel argued further, that there was no record in the report where the Appellant was afforded the opportunity to cross examine or contradict the witnesses who testified against her in the panel.
Counsel submitted that the trial Judge failed to differentiate between representation and making representation in person as envisaged by the Act. Also the Appellant complained that she was not given adequate and full opportunity to defend herself or make representation in person before the second panel ie the special Disciplinary Panel. Exhibit S listed all the offences for which the Appellant was found guilty of and dismissed her from service. The Appellant under examination in chief agreed that:
“I was invited to appear before a special disciplinary committee … as a matter of fact, evidence was taken behind me and I was not given the opportunity to cross examine or contradict any of the witnesses.”
“I appeared before a second committee set up by the 1st defendant … I protested the constitution of the said second panel as to their membership. As a result I was excused and no question was asked from me”
In answer to this, the DW1 testified in Chief as follows:
“The plaintiff was invited to attend the proceedings of the committee. She actually attended in person.
Plaintiff was given full opportunity to present her case and she did”.
“Two witnesses were called to testify in the case against the plaintiff”.
Counsel argued that two witnesses were called to testify in the panel that tried the Appellant for stealing, insubordination and refusal to retire N100,000.00 imprest money behind her back. PHMB vs. EDOSA (2001) 5 NWLR Pt 707 page where Wali JSC held as follows:
“I have carefully gone through the records of proceedings before the committee of the Management Board, Exhibit ‘M’, but could not cite an instance where it was shown that the Respondent was afforded the opportunity of cross examining any of the witnesses that testified before the Board against her..”
“On a close examination of Exhibit ‘M’ there is no indication that the appellant was asked if she wanted to question any of the witnesses or that she in fact did. The inference is that she was not given the opportunity to cross examine the witnesses who spoke against her which is a clear violation of the rule audi alterem partem”.
With the above learned counsel argued that the Appellant was denied a fair hearing. See Joe Gukas Vs. Jos International Breweries Ltd (1991) NWLR Pt 199 page 614 where it was held inter alia:
It has been held that in order to satisfy the imperative of fair hearing it is sufficient if a person is given adequate opportunity in writing to defend himself or herself against an allegation before a decision is taken against him or her.
See also Agha vs. IGP (1997) 10 NWLR Pt 524 page 317 where the Court of Appeal laid down the principles for a panel.
a. To be present all through the proceedings and hear all the evidence against him.
b. To cross examine or otherwise contradict all the witnesses that testifies against him.
c. To have read before him all the documents tendered in evidence at the hearing.
d. To have disclosed to him the nature of all relevant and real evidence prejudicial to the party save in recognized exception.
Counsel urged the court to hold that the panel failed to observe the principles of natural justice by withholding some allegations from the knowledge of the Appellant, tried and found her guilty on same and dismissed the Appellant.
Counsel also urged the court to hold that the trial Judge was in error when he held as follows:
The plaintiff’s counsel vigorously labored to convince the court that the plaintiff was not given fair hearing in that the record does not specially show how the plaintiff cross examined witnesses or other features inherent in judicial proceedings or Tribunals.
Even if this is so, the answer is that by virtue of section 9(1)(a) and (b) the procedure adopted did not even mandate the Defendants to set up any investigation committee since the plaintiff did not so request. All that was required was to give the plaintiff notice of the allegations against her and to request her to make representations which she did. As I said it was sufficient upon that for the Defendants to take actions as specified in sub-section (3) of the said section of the Act. (Underlining mine).
See Adeniran vs. NEPA (supra) Baba vs. NCATC (1991) 5 NWLR Pt 192 page 388, UMTHMB V DAWA (2001) 16 NWLR Pt 739 page 424.
Counsel therefore urged the court to resolve this issue favour of the appellant.
In response, the 1st Respondent stated that none of the issues articulated were from grounds 5 and 6 and urged the court to strike them out having been abandoned See Ojiogu vs. Ojiogu (2010) 9 NWLR Pt 1198 page.
Counsel submitted that the Appellant was not denied fair hearing. The Appellant herself alleged she was not queried for the N100,000.00 emergency imprest irregularity. This is not correct as the Appellant herself pleaded it in her Amended Statement of Claim at page 4 of the Record of Appeal at para 9. See also para 24 page 6 of the Record of Appeal and her explanation of the N100,000.00. See the Appellant’s reply and retirement of N100,000.00 vide page 183-184 of the Record of Appeal.
This reply was tendered by the Appellant and marked as Exhibit C. Counsel argued that the Appellant cannot be allowed on appeal to state that she had no knowledge of the query for N100,000.00. See Societe General Vs. Societe General Bank (1997) 4 SCN J page 60.
Counsel argued that the Appellant in her testimony stated on page 101 of the Record of Appeal that:
“They started making various allegations against me. One of such was that I did not account for the expenditure of the sum of N100,000.00 granted me as an imprest. As a matter of fact, I made due retirement of the said imprest in writing.
She later said that:
“I was not shown any allegation made against me by the Panel
Also appellant in her pleadings in para 16 an d 24 of pages 5 and 6 of Record of Appeal stated that she appeared before the investigative panel even though according to her it was not properly constituted. In sum the Appellant appeared before the two panels and answered all the queries issued to her See Hart vs. Gov. of River State (1976) 11 SC page 211 which held:
“A hearing to be fair need not be necessarily oral. A hearing will still be considered fair where the…complainant was given adequate opportunity in writing, to defend himself against an allegation before a decision is taken against him”.
Counsel referred the court to
Section 9(3) of the Act which reads – “(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated or he may be dismissed by the Board, and for the purpose of this section, good cause “means –
(a)
(b)
(c) Conduct of a scandalous or other disgraceful nature which the Board considers to be such as to render the person concerned unfit to continue to hold his office; or
(d) Conduct which the Board considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service”.
lf the appellant fails to utilize the opportunity afforded her, then she has herself to blame. Counsel referred the court to S. 151 of the Evident Act and the case of Inakoju vs. Adeleke (2007) 2 MJSC page 1 which held that:
“In its nature, a party who has or had every opportunity to present his case before the court and who fails to do so, cannot be heard to complain of his right of fair hearing…”
See also Oyegun vs. Nzeribe (2010) 7 NWLR Pt 1194 page 577 which held.
“A party who disqualified himself from being heard by the court as a result of his failure to take procedural steps cannot complain of lack of fair hearing. This principle applied not only to judicial tribunals but also equally to the Panels that considered the Appellant’s case in this matter.
Counsel submitted further that the Appellant’s dismissal letter Exhibit P on page 105 of the Record of Appeal showed clearly that it was on grounds of gross misconduct in accordance with Civil service Rule 04201 She was dismissed for acts of impropriety. Exhibit A is the Appellant’s Appointment letter at page 8 of Record of Appeal which stipulated that:
“You will be subject in all respects to all conditions service stipulated from time to time by the Hospital management Board of the Teaching Hospital”.
The appellant has not being able to show anything contrary to the conditions under which she was dismissed. See S. 149 of the Evidence Act Union Bank of Nig. Plc Vs. Chinyere (2010) 10 NWLR Pt 1203 page 453 where it was held:
“Since it was the Respondent’s case that the termination of his employment by the Appellant was wrongful and null and void for not being in accordance with the terms and conditions of the contract of service between them, it was squarely left for him and not the Appellant to plead and prove the conditions of service in question and in what way the terms were not duty observed. This he woefully failed to do. The burden of proof in a civil matter lies on that person who would fail if no evidence at all were given on either side.”
Counsel submitted finally that once the board perceives that the Appellant’s conduct is scandalous or disgraceful making her unable to discharge the functions of her office credibly, the board reserves the right to terminate her appointment. The Appellant cannot pretend that she was not accorded fair hearing to set aside her termination. Counsel therefore urged the court to resolve this issue against the Appellant.
There were no issues articulated from grounds 5 and 6. It would be taken as abandoned and therefore struck out.
The important aspect in a disciplinary hearing is that it must be conducted fairly according to the rules. To be able to do this, some rules must be observed. They are as follows:
(a) The employee is entitled to know the nature of the charge against her, in order to be able to prepare her case. It is advisable to put this in writing.
(b) An employee should always be given an opportunity to state her case, no matter what the circumstances are. It is not essential that he should be present in person throughout the hearing.
(c) She should be permitted the right to have a trade union representation or a legal practitioner to speak on her behalf if she so wishes.
(d) She should also be informed of her right of appeal where the procedure provides for it.
The Appellant has alleged that she was not given a fair hearing as she complained that she was not notified of all the allegations against her. She also claimed that she was not present to hear the two witnesses and had no opportunity to cross examine the witnesses.
”The provisions of fair hearing simply requires that an employee so accused is given adequate notice of the allegations leveled against her to enable her make representative of her defence. A.T.A Poly vs. Marina (2005) 10 NWLR Pt.934 page 487, Yusuf vs. UBA Ltd (1996) 6 NWLR Pt 457 page 632, Ransome Kuti vs. Attorney General Federation (1985) 2 NWLR Pt 6 page 211.
The Appellant had insisted that she was not given a fair hearing because she was not sitting in at the trial and afforded the opportunity to interview witnesses. It would be pertinent to distinguish between a judicial or quasi-judicial proceedings and an administrative panel. This distinction was aptly described in the classic case of Baba vs. N.C.A.T.C & Anor (1991) 5 NWLR Pt. 191 page 388. The court in this case held that
(a) In a judicial or quasi-judicial proceedings, a ‘hearing’, in order to be fair, must take into consideration the right of the person to be affected and such a person must be given the opportunity:
(i) To be present all through the proceedings and hear all the evidence against him;
(ii) To cross-examine or otherwise confront or contradict all the witnesses that testify against him or his interest;
(iii) To have read before him all the documents tendered in evidence at the hearing;
(iv) To have disclosed to him the nature of all relevant material evidence, prejudicial to the party, save in recognized exceptions;
(v) To know the case he has to meet at the hearing and have adequate opportunity to prepare for defence; and
(vi) To give evidence by himself, call witnesses, if he likes and make oral submissions either personally or through a counsel of his choice. All the above requirements of fair hearing are all necessary and need all be present only where the determination of one’s civil rights and obligations are in issue before a judicial or quasi-judicial proceeding or any other tribunal or body acting judicial. (Kotoye vs. Central Bank of Nigeria) (1989) 1 NWLR (Pt. 98) 419 referred to 1.
Karibi – Whyte JSC continued to hold that
“In domestic tribunal such as this, ……. Neither the Appellant, nor any other person was on trial” See Adigun Vs. Attorney-General of Oyo State (1987) 1 NWLR Pt. 53 page 678.
It was further held that:
“the most important consideration is whether the person likely to be affected by the investigation was given an opportunity to state his case, and answering if he can, any allegations which concerned him”
In the instant case, the Appellant was given an opportunity to make her representations to the panels. She also acknowledged that she was served the allegation leveled against her. She also acknowledged making her written representation. Her only complain was that she was not afforded the opportunity of cross examining the two witnesses.
It must be borne in mind that the Appellant was not under any trial. The panels were merely an investigation panel and a disciplinary panel. Both panels are not foist with the red tape of a judicial or quasi-judicial trial that the Appellant must be there throughout the trial and afforded an opportunity of cross examining witnesses.
It therefore means that two panels afforded the Appellant the opportunity the law presupposes. The panels are bound to observe the twin pillars of natural justice, that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him but also to answer it.
These were all afforded the Appellant. She was asking for what the law does not afford her. She got what she was entitled to. The panels afforded her fair hearing as expected. The Appellant having utilized the opportunity given to her to make her representation, cannot justifiably claim to have been deprived of fair hearing in the investigation. Not affording her an opportunity to cross examine the witnesses is not a denial of fair hearing. See again Baba vs. NCATC (supra)
The appellant was accorded a fair hearing as she was given adequate notice of the allegations leveled against her.
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) 255 at 262 Olatunbosun vs. NISER Council (1988) 3 NWLR (Pt. 80) 25.
Yusuf vs. Union Bank of Nigeria (1996) 36 NWLR (Pt.457) 632.
The Respondents (employers) have done what is expected of them. It is not proper for an employer to remove an employee on the basis of the report of an investigation panel only. The Respondents have gone a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee State Civil Service Commission Vs. Buzugbe (1984) 7 SC page 19.
The allegation by the Appellant that she was denied fair hearing has no basis at all. I agree with the trial Judge that the appellant was accorded a fair hearing. I therefore resolve issue one against the Appellant in favour of the Respondents.
ISSUE 2
The learned counsel to the Appellant submitted that the Respondents did not observe and follow strictly the provisions of S.9 of the University Teaching Hospitals (Reconstitution of Boards) Act Cap 463 LFN 1990 before it dismissed the Appellant from her employment.
The Respondents did not comply with the tenor of S.9(1)(a) of the Act by not disclosing to the Appellant all the reasons and allegations of misconduct so as to enable her prepare and defend herself. Exhibit E at page 187 of the Record of Appeal is the allegation and Exhibit F is her reply. Counsel argues that para 5 of page 200 of the Record of Appeal disclosed the trial of an allegation that was not made known to the Appellant. This is what the panel held:
“On the expenditure of N100,000.00 Emergency Imprest, the panel made the following findings:
i. The Chief Medical Director approved the sum of N100,000.00 as Imprest before he travelled out of the hospital.
ii. The expenditure of the N100,000.00 was to be controlled by the Chairman, Medical Advisory (CMAC) in the absence of the Director of Administration and the Chief Medical Director.
iii. Xxxxxxxxxxxxxx
This, we have already canvassed above put the Appellant in a big disadvantage and was aimed at over reaching her and put her in a situation of absolute helplessness.
This allegation of N100,000.00 was strange to the Appellant. Counsel urged the court to resolve this issue in favour of the Appellant.
In response 1st Respondent learned counsel contended that Appellants complained that the respondents did not comply with S.9(1)(a) of the Act by not disclosing to the Appellant all the reasons and or allegations of misconduct leveled against her so as to enable her prepare and defend herself. Counsel submitted that the Appellant herself testified that a query was issued to her on it and she tendered her response as Exhibit C on page 100-101 of the Record of Appeal. She also tendered Exhibit K-K3 at page 103 of the Record of Appeal. These were invitations to her to appear before the panels. The Exhibits on pages 193-196 were quite clear and show the investigation was on Appellants complicity as Chief Accountant. At page 194, the invitation to Appellant states inter alia:
“Following the constitution of a committee to investigate the complicity and general attitude to work of Obonganwan (Mrs) M.N.J. Ntewo…”
Counsel submitted that even if the issue of N100,000.00 was to be discountenance, there were other allegations of misconduct proved on record which will be enough for her dismissal on grounds of misconduct as stated in her letter of dismissal.
Counsel urged the court to resolve, this issue against the Appellant.
In the determination of issue one, issue two was treated extensively. For avoidance of doubt, I will recapitulate what I said in issue one.
I repeat, the Appellant is entitled to be given adequate notice of the allegations leveled against her to enable her make her representation of her defence. ATA Poly vs. Marina (supra) Yusuf vs. UBA Ltd supra, Ransome Kuti Vs. Attorney General of the Federation (supra).
Contrary to the submission of the learned counsel to the Appellant, the Appellant was issued a query about the use of the N100,000.00 See page 99-100 of the Record of Appeal where the Appellant stated.
One of such was that I did not account for the expenditure of the sum of N100,000.00 granted me as an imprest. As a matter of fact, I made due retirement of the said imprest in writing. The one shown to me is the copy of the document by which I made the retirement. The original copy is with the Defendant and we gave notice to them to produce it. They have not produced it. I seek to tender the copy.
The Appellant was aware of this N100,000.00 allegation against her
See para 9 of her Amended Statement of Claim, page 4 of Record of Appeal.
All the allegations leveled against her she acknowledged and made representations. The allegations against her especially that of N100,000.00 was brought to the fore by herself and she referred to the internal memo retiring the imprest. Her retirement was unsatisfactory to the panel hence it was listed as one of the various allegations of misconduct she was found wanting. Financial impropriety was leveled against the Appellant which imputed various types of financial misconduct. Impropriety by 7th Edition Oxford Advanced Learners Dictionary means:
behaviour or actions that are dishonest, morally wrong or not appropriate for a person in a position of responsibility.
Having made known the allegations leveled against her, she made her representations to both panels. All the allegations were founded hence her dismissal.
The appellant was accorded fair hearing in both panels.
This issue is also resolved against the Appellant.
ISSUE 3
Learned counsel to the Appellant submitted that, the Respondents failed woefully to comply with the provisions of the Act as it related to the Appellant. S.9(4) of the Act provides as follows.
Any person suspended shall, subject to subsections (2) and (3) if this section be on half pay and the Board shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to:
(a) xxxxxxxxxxxxx
(b) xxxxxxxxxxxx
(c) Whether to terminate the appointment of the person concerned, in which caser such person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or
(d) Whether to take such lesser disciplinary action against such person (including the restoration of his emoluments that might have been withheld), as the Board may determine.
Counsel referred the court to Exhibit G the suspension letter dated 13th November, 1998 and the letter of dismissal Exhibit P dated 24th November, 1999.
Counsel submitted that it took the respondents 13 months in contravention of the Act which stipulated 3 months See Tanko Vs. State (2009) 14 WRN page 27 CCB (Nig) Plc Vs. Attorney General Anambra State 1992 8 NWLR Pt 261 page 582. See also Bamiboye vs. UNILORIN (1990) 10 NWLR Pt 622 page 246 where the Supreme Court held as follows:
It is now well established principle of law that when an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations made there under, any person holding the office or is in that employment enjoys special status over and above the ordinary master and servant relationship. In the matter of discipline of such a person, the procedure laid down by the applicable statute or regulation must be fully complied with if materially contravened, any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding. See also SHITTA-BEY VS. A-G FED. (1998) 10 NWLR Pt. 569 page 392.
Counsel urged the court to hold that the Respondents were in contravention of S.9(4) of the Act and therefore this issue should be resolved in favour of the Appellant.
The learned counsel for the 1st Respondent submitted that by the leave of court of 24th November, 2010, the appellant was allowed to canvass a fresh issue. However this fresh issue is not anchored on any ground of the Appeal. The Appellant did not complain about the general non compliance of the whole Act. The Appellant was particular about the section of the Act she was complaining about.
Counsel submitted that the Appellant did not complain about her suspension lasting more than 3 months as being a violation of the Act during the trial to enable the Respondents reply. The Appellant was on half pay and never complained nor returned the excess or the undue payment after 3 months. This argument, counsel opined is against procedure, which she accepted and participated in having benefited from the extra-payment without complaint. It does not attack the substance of her dismissal making it merely technical. See the case of Famfa Oil Ltd vs. Attorney General of the Federation (2003) 11 MJSC 66 or (2003) 18 NWLR Pt 852 page 452 where the Supreme Court held as follows:
“Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice”.
Allowing this line of argument will mean absolving the Appellant from gross misconduct. Letting her keep the extra-payments to her and also allowing her return to work.
See Saint Roland vs. Osinloye (1997) 4 SCNJ, 217. Where the Supreme Court held inter alia:
The court has inherent powers to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain.”
The length of suspension should not therefore vitiate her dismissal.
The 2nd Respondent counsel in reply submitted that
(a) A litigant cannot as a general rule raise fresh issues on appeal.
(b) An issue cannot be raised in the absence of a supporting ground of appeal. See Dahuru vs. Kamale (2001) 11 NWLR Pt.723 page 224 where the court held.
“As a general rule an issue which has not been raised in the court below will not be entertained on appeal. The rationale of the principle is easy to discern. It is not the business of an appellate court to decide disputes by trying cases. That is an exclusive preserve of the trial court.
The non compliance with S.9(4) is one that raises issues of facts. The appellant received half salary for over 12 months as against 3 months and failed to complain. By this act she had acquiesced and cannot be heard to complain for a wrong which she had benefitted from.
This issue is not supported by any ground of appeal and must therefore be discountenanced See Buhari vs. Takuma (1994) 2 NWLR Pt 325 page 183. Where the court held:
“This issue cannot be said to have arisen or predicated on any of the appellant’s ground of appeal. Any issue not predicated on any of the grounds of appeal is ineffectual and most be discountenanced.”
Finally, the learned counsel submitted that this issue should not be considered at all as it borders on technicalities. The appellate courts have leaned on the side of doing substantial justice rather than on technicalities. See the case of Atande vs. Salami Ajani and Ors (1989) 6 SCNJ Pt 11 page 193 where it was held that:
“Now, by a long line of decided cases this court, as well as the Court of Appeal, had reiterated the fact that, pursuant to the principle that it will always lean in favour of doing substantial justice in a case rather than hanging on technicality, it will not reopen a procedural irregularity that has been waived at the instance of a party who should have raised the point timeously.
Counsel urged the court to hold that it is not in all cases that the word SHALL is mandatory. In some cases it is construed to be permissive or directory. See the cases of Katto vs. CBN (1991) 9 NWLR Pt 214 page 126, Okpara Vs. Director General of National Museum and Monuments & Ors (1996) 4 NWLR Pt 444 page 587, where the Court of Appeal held inter alia:
“However it is not always, that the word ‘shall’ is held to be mandatory. Sometimes the word is held to be directory depending on the circumstances especially when to construe it as mandatory would lead to some absorb or inconvenient consequences. There is no hard and fast rule for construction of the word”.
Counsel finally urged the court to construe the word shall in this legislation as directory and resolve this issue against the Appellant.
The Appellant’s learned counsel had argued that the Respondents suspended the Appellant and kept her for 13 months on half pay contrary to the intendment of the Act. The Act provides that:
“Any person suspended shall subject to subsection (2) and (3) of this section be on half pay and the Board shall before the expiration of a period of three (3) months after the date of such suspension consider the case against that person and come to a decision as to.”
This is what the Act provides. Ordinarily where the law uses the word shall it is supposed to be mandatory. However in some cases it has been interpreted to be directory. In Maxwell on The Interpretation of Statutes 12th Edition by P. St J. Langan, Chapter 13: Intentions Attributed to the Legislature when it expresses none at page 314.
“When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held to be fatal to its validity. In others, such prescription have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed for breach of the enactment.”
I would want to believe that the intendment of this Act is to adhere strictly to the months within which the panel must send out its query, receive a reply, then inaugurate a panel to sit and adjudicate on a case. It is really desirable but not necessarily practical. At the time of this suspension you may recall that there was no board for University Teaching Hospitals. The Minister who resides in Abuja has to sign before the dismissal can be communicated to the Appellant.
The time frame in this Act is to minimize the hardship a suspension can cause to a person waiting indefinitely to know his or her fate. Even though the 3 months provided by the Act was breached, it has not substantially affected the substance of the suspension and final termination of the Appellant’s appointment. Lord Coleridge C.J in the old case of Woodward vs. Sarsons (1875) LR 10CP Page 733 opined.
“An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially”
The intendment of the enactment in the instant case has been fulfilled substantially. The panel has accorded the appellant a fair trial, that the outcome took more than 3 months to come to finality. The procedure was breached in terms of time frame. It would be borne in mind that this is an administrative panel that the members are not vast in the legal jargon. They did their best to make sure the Appellant was given a fair trial.
This fresh issue does not relate to any ground of appeal. Issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant in the brief in support of such issues. They will be discountenanced by the court. Ibator vs. Barakuro (2007) 9 NWLR Pt 1040 page 475, Amadi vs. NNPC (2000) 6 SC Pt 1 page 66, Shitta-Bey vs. Attorney General of the Federation (1998) 10 NWLR Pt 570 page 392; JC Ltd vs. Ezenwa (1996) 4 NWLR Pt 443 page 391, Momodu vs. Momoh (1991) 1 NWLR Pt 169 page 608.
Was this issue based on the judgment in the trial court. No! This issues ought to be struck out as worthless since it does not relate to any ground of appeal referred to by the Appellant.
This issue goes to no effect as the non-compliance of S. 9(4) of the Act has not derogated from the validity of the termination of the Appellant’s appointment. It would be unconscionable to use this procedural defect, of prolonging the investigation over 3 months prescribed by the law to upturn the judgment. What is the justice of this Appeal? The two panels gave the Appellant a fair trial which cannot be impugned by the provision of 3 months time frame. I make bold to hold that this provision of 3 months is directory. This is to make sure that the final decision of the panel does not drag to a ridiculous extent. 13 months from the beginning of an administrative panel cannot be said to be too long. The members of the panel had their day time jobs other than the panel.
I hold that substantial justice has been done in the case of the Appellant. I therefore resolve this fresh issue against the Appellant.
Having resolved all the issues against the Appellant, I hold that the appeal is unmeritorious. It is dismissed. I affirm the judgment of the trial court.
I make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A: I have read a draft of the lead judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, in this appeal before today. The two issues submitted by the learned counsel for Appellants have been fully considered in the lead judgment and I agree with the views expressed therein on them as well as the conclusions reached in their resolution.
I would want to emphasize that the principle of fair hearing as envisaged in the right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution applies in the determination of a party’s civil rights and/or obligations by a court or tribunal established by law as provided in the section. These are the provisions:
“36(1)- In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
As can easily be observed, the right guaranteed therein is in respect of the determination of a party’s rights and obligations before a court of law or tribunal created by law, which therefore perform judicial and quasi judicial functions. These courts and tribunals are bound to comply with the provisions of the sub section in the conduct of their proceedings and any breach or violation of the right to fair hearing in the conduct of such proceedings would render them a nullity abinitio. See Mohd. V Kano N. A. (1968) 1 ANLR, 424; Ejike v Nwankwoala (1984) 12 SC, 301; Onajobi v Olanipekun (1985) 1 SC, 156.
However in cases of administrative panels of inquiry set up for the primary purpose of facts finding in respect of matters that may require investigations as part of a disciplinary procedure, all that is required is that they be guided by the principle of natural justice in the sense that all people involved be notified of any allegations against them and be afforded adequate opportunity to answer them. Because such panels do not determine the civil rights and obligations of the persons involved, but only make recommendations based on the facts found by them, the principle of fair hearing applied in the conduct of proceeding of courts or tribunals established by law, would not strictly be applicable. For instance where a party or person involved was informed of the allegations against him in writing by the panel and he answered them in writing without let or hindrance and forwarded it to the panel, the fact that witnesses who gave oral evidence before the Panel were not cross examined by the person would not vitiate the proceedings of the panel on the ground of want of fair hearing under the constitutional provisions. That is the position expounded by the Supreme Court in the case Baba v N.C.A.T.C. cited in the lead judgment. Such administrative panels usually set up by executives or institutions to make findings of facts and consequent recommendations, that may or may not be accepted by the person or institutions to who they were made, do not determine the civil rights/obligations of the persons involved in the inquiry and are not courts or tribunals established by the law that a act judicially or quasi judicially and decide the rights obligations of the parties who appear before them, completely, conclusively and finally, subject only to another constitutional right of any of the parties to appeal against such determination , if not satisfied therewith. See also Okike v L.P.D.C. (No.2)(2005) 7 SC (Pt. III) 75.
I am in complete with the lead judgment that since the Appellant was duly informed of the allegations against her by the 2nd Panel set up to investigate the allegations and she was given adequate opportunity which she fully utilized by answering them in writing to the panel, the fact that she did not cross examine a witness who testified before the panel in her absence, did not deny her the right to a fair hearing in the conduct of the panel’s proceedings.
I also agree that the Respondents had complied with the provisions of the relevant statute in the procedure for the dismissal of the Appellant as demonstrated in the lead judgment.
In the result, for the above and more detailed reasons in the lead judgment which I adopt, the appeal is dismissed by me too far being unmeritorious.
Parties shall bear their respective costs of prosecuting the appeal.
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 exhaustively resolved and I completely agree with the conclusions reached. I also hold the view that the appeal is unmeritorious; and hereby affirm the judgment of the lower court.
I abide by all the Orders made in the lead judgment.
Appearances
A. Okeja, Esq. with him F. O. Ameh Esq.For Appellant
AND
O. I. Ironbar Esq. with him N. Ironbar (Mrs) and
I. Ironbar (Mrs) for the 1st RespondentsFor Respondent
