In The Court of Appeal of Nigeria

On Wednesday, the 16th day of April, 2003





SUNDAY AKINOLA AKINTAN   Justice of The Court of Appeal of Nigeria


ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria


DAVID ADEDOYIN ADENIJI   Justice of The Court of Appeal of Nigeria



RAPHAEL C. UZOHO –  Appellant(s)





DAVID ADEDOYIN ADENIJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Maranzu, J. of the Imo State High Court sitting at Owerri, delivered on 13th May, 1996.

The learned trial Judge dismissed the appellant’s claim.

The claim of the appellant in the court below was for:

“(a) A declaration that the purported dismissal of the plaintiff from his employment as a radiographer with the General Hospital, Owerri and the consequential directive that the plaintiff shall refund the sum of N165.00 to the 2nd defendant in this suit are void.

(b) The sum of N100,000,00 (One hundred thousand Naira) damages for wrongful dismissal and loss of earnings.”

The appellant being dissatisfied with the lower court’s decision appealed against same, filing three grounds of appeal. At the hearing of the appeal, the appellant distilled 2 issues from the three grounds of appeal filed for determination. These are:

“(a) Whether the trial court misplaced the burden of proof of the material facts at the trial.

(b) Whether the appellant is entitled to the declaration which he sought at the trial.”

In response, the respondents’ counsel also formulated one issue for determination by this court arguing that the issues as formulated by the appellant’s counsel did not represent the real issues at stake in this appeal. The issue formulated by the learned defence counsel therefore reads:

“Whether having regard to the quantum and quality of evidence led in the trial of this case before the lower court and the nature of the appellant’s claims, whether the trial Judge was not light in dismissing the appellant’s claims for his inability to prove same.”

The facts of this case are that the appellant was a radiographer then in the service of the Hospital Management Board of Imo State under the supervision of the Imo State Ministry of Health.

The appellant’s appointment was terminated on 22/3/88 on the allegation that he collected sums amounting to N16.00 from some students that came to the place to have x-ray. A task force on hospital management (1st respondents) was charged with the responsibility of looking into the allegation against the appellant and other officers in the board affected by the said allegation. On the conclusion of its task, the task force made recommendations to the Health Ministry leading to exhibit A, the letter of dismissal of the appointment of the appellant from service. The appellant then sued all the four respondents in this case to the State High Court for the reliefs claimed and reproduced supra. The case went into full trial but the appellant was not happy with the court’s conclusion, hence, this appeal.

In arguing the appeal, the learned counsel for the appellant adopted the issues as framed by him and submitted on issue No. 1, that it was wrong for the learned trial Judge to harp on the failure of the appellant to produce the statute which governs the Hospitals Management Board, that is, 2nd respondent and the proceedings at the task force venue of the case against the appellant, whereby the court invoked provision of section 149(d) of the Evidence Act against the interest of the appellant. He referred to evidence on page 83 lines 30-31 through page 84 lines 1-2 of page 84. Lines 28-31 and page 85 lines 1-6.

Counsel argued that a party did not need to plead statutes, as there is a presumption of knowledge of the provisions of a statute or gazette. Counsel in that regard referred to Order 25 rule 4 Imo State High Court (Civil Procedure) Rules, 1988 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) p. 688-717 paragraphs C-D and p. 729 paragraphs C-D. He said it was wrong for the court to hold that it could not determine whether exhibit A (letter of dismissal) was properly served on the appellant or properly executed without being in possession of the statute that governs appellant’s employment with 2nd respondent. The court, counsel pointed out had earlier identified the statute as Imo State Edict, No.7 of 1986 and it was for the court to reach out for the law.

On the proceeding of the task force, counsel was of the view that the 4th respondent (Attorney-General) had the duty of producing the proceeding when he was supposed to produce same but declined to do so, whereupon the appellant had to close his case after many adjournments. Counsel referred in that regard to proceedings on  pp. 55 and 74 of the record lines 25-32. Oral evidence of the facts in the proceedings, counsel concluded was therefore admissible.

Counsel referred to section 97(1) of the Evidence Act, Cap. 112, L.F.N., 1990 and the case of Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 where he said the provisions of section 149(d) Evidence Act was considered. This is more so, he said, that the respondents are the very parties from whom the appellant could source copy of the said proceedings. He noticed that the appellant pleaded the material content of the proceedings and gave evidence of it per page 12 lines 20-33 paragraphs 2-5 of the statement of claim and also page 13 lines 8-31, including the entire pages 14 and 15 as well as page 16 lines 1-9 of the record.

Learned counsel supported the view of the court below, when it held that since the respondents’ counsel had decided to make a no case submission, she was taken as having adopted the statements of fact made by the appellant. Counsel was of the view that the facts adopted included the proceedings at the task force sitting. Counsel in that regard referred to the case of Mogaji v. Odofin (1978) 4 SC 91. With such evidence, counsel believed the scale should have tilted in favour of the appellant.

In his response, the learned counsel for the respondents replied that he who alleges must prove the facts of his claim. He relied on Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 352, and pointed out that the appellant had averred in his statement of claim that he protested against the manner the enquiry was being held, which denied him right to fair hearing per paragraphs 18 and 19 of his statement of claim. By that counsel added, the appellant was understood to complain that the investigating panel in its Constitution and execution of its duties did not uphold the principles of natural justice, that is fair hearing. For this he said it was incumbent on him to adduce evidence as to the composition of the panel or denial of opportunity for him to deny the allegations against him. Counsel relied for this on Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306. No such denial of opportunity was alleged in evidence by the appellant in his testimony. He even agreed that some students pointed at him (at the identification parade) that he received N16.00 from each of them but he denied this.

With all the above, emphasized counsel, the appellant could not say he was not given adequate opportunity to defend himself. Counsel agreed that all administrative bodies set up to perform quasi judicial functions are in law to observe principles of fair hearing and quoted Forlesque in R. v. Chancellor of Cambridge (1723) 1 Strange 557 and also Bairamian, F. J. in George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117 at 123. With all the above, counsel added, it would be mischievous for the appellant to complain that he was not given fair hearing, he having testified to show the ample opportunity given to him to defend himself before the panel. It was, he said for the appellant to lead credible evidence to show that his dismissal was unlawful. The appellant failed to do so, concluded counsel while citing in that connection the case of Odukwe v. Ogunbiyi supra at p.354 per Iguh, J.S.C. Counsel also referred to Mohammed, J.S.C in the case of Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554 at 564 where the learned jurist said it was for the appellant to prove his claim and if he failed to do so, the defence was not duty bound to call evidence and that the procedure was so elementary. In this case, he said, the appellant had proved that he was duly heard.

On the application of section 149(d) Evidence Act, counsel submitted that the appellant had subpoenaed some Ministry officials to produce particularly the proceedings of the investigatory panel but closed his case without producing such document after several adjournments. The court he said, therefore, rightly invoked provisions of section 149(d) Evidence Act against the appellant. The defendant, he pointed out never counter-claimed, hence, it had nothing to prove. The appellant, he maintained, had a duty to establish his claim whereby, the onus would shift upon the defendants to disprove same but in this case, the appellant in fact failed to establish such claims and pleadings no matter how beautiful, will never take the place of evidence. He then urged the court to answer the issues formulated by the appellant in the affirmative and dismiss the appellants appeal.

In my view, the facts of this case are clear, though the procedure adopted appear somehow strange and in some respects, very risky, particularly when a party decides not to testify in the face of very serious allegations. Apart from that the practice of lower courts inviting counsel to submit written address appears not to be favoured by judicial decisions. It is more so when the written addresses not having been tendered in evidence are marked as exhibits (in this case exhibit A and exhibit B) they not forming part of the evidence on oath or part of any sworn affidavit. These are mere observations, which have nothing to do with the merits of the case.

I now come to the submissions of counsel in this appeal. I need say that the way the respondents’ counsel rolled the two issues formulated by the appellant into one issue is in order for all the issues go to one and only one point, that is, whether or not the appellant was given a fair hearing in the court below. For ease of reference however, I will go by the order in which the appellant’s counsel set his arguments.

On issue 1, appellant’s counsel grouse is with the manner the court placed the burden on the appellant to produce the statute governing the 2nd respondent to establish the facts that the panel had not complied with its own regulations. It is the view of appellant’s counsel that statutes and gazettes are matters of judicial notice and to place the responsibility of producing them on the appellant was improper. In his own view, the respondents’ counsel believed it was proper because the appellant had claimed that the Task Force had not the capacity to function as it did.

The Task Force that is, 1st respondent was set up by the 2nd respondent with certain terms of references as contained in paragraph 7 of the plaintiffs/applicants’ statement of claim to wit:

“1. To establish the fact of the allegation of fraud.

  1. To identify the roles of all persons allegedly involved in the fraud; and
  2. To make appropriate recommendation.”

That was in September 1987 as contained in paragraph 7 of the statement of claim.

The Task Force was set up by the 2nd respondent under the section 25 of the Hospitals Management Board Edict No.7 of 1986 which provides thus:

“25 When it is shown to the satisfaction of the Board or the Commissioner that the Hospital is not being managed or administered in public interest, the Commissioner or the Board may cause such inquiries as he or it deems expedient to be held into the affairs of the hospital.”

See also section 30 of the Edict, which reads:

“30 The Board may, with the approval of the Commissioner, make regulations:

(a) …

(b) …

(c) …

(d) …

(e) …

(f) Make provisions for holding administrative inquires into any alleged breaches of regulations by any employees and for procedures for holding such inquiries.”

In addition, the Board is charged with the responsibility to enforce and review proper discipline of staff as well and take action promptly on all complaints. See section 13(vi) & (vii) which reads:

“13 It shall be the duty of the Board to:

(i) …

(xi) …

(xii) To enforce and ensure proper discipline of all hospital staff.

(xiii) Receive, investigate and take action promptly upon all complaints from whatever source regarding hospital service matters within its  jurisdiction etc.

From all the above, one would readily see that the 1st respondent was lawfully set up by the 2nd respondent under the enabling Edict (Law) to perform the functions it handled. It will therefore be erroneous to assert that the Task Force could not perform that function connected with the inquiry into the allegation against the appellant and his colleagues in the Board.

I now come to the view of the learned Judge that the appellant had the responsibility of producing the Edict. I agree on that score with the stand of the appellant’s counsel that the status or existence of an Edict (Law) is a matter presumed to be within the knowledge of the presiding Judge. He/She is supposed to have judicial notice of its existence, hence, the appellant could not under whatever pre be saddled with the responsibility of producing it in the court. Be that as it may, the whole hue and cry about it amounts to nothing in that the content of the proceeding has been given in evidence, as asserted by the appellant’s counsel and in no way can its non-production cause miscarriage of justice. Arguments about its non-production therefore, go to no issue.

Counsel for the appellant also harped on the court’s heavy reliance upon section 149(d) Evidence Act which it invoked against the appellant. That aspect concerns the production or non-production of the proceedings of the panel. Appellant’s counsel is not happy that the court cast the burden of producing it on the appellant while the respondents’ counsel maintained that the court properly so held in so far as the appellant was the party that complained against the conduct of the proceedings.

In this regard, it is necessary to reiterate the scenario that gave rise to this aspect of the case. The appellant had complained that he was not given fair hearing at the inquiry, particularly that he was not given opportunity to cross-examine the students who pointed at him as the officer who took money (N 16.00 per student) from them. This is a case where the appellant was accused of taking money from students irregularly. It is not strictly an issue of fraud but one bordering on gratification or extortion.

From all indications, the appellant testified thus on page 51 lines 14-21 of the record:

“I appeared before the panel. The Panel did not accuse me of any fraud when I appeared before them. I did not lose any x-ray film or occasion such a loss as alleged by exhibit A. I was only asked how we collect revenue in that some people alleged that I collected money from them and I told them that I did not know any such thing.”

In further evidence on page 52 lines 5-12 of record, appellant testified thus:

“It is true as alleged by the defendants that during the investigations before the panel, some students of Alvan Ikoku College of Education pointed at me as having received money from them. Three students pointed at me alleged that I received N16.00 (sixteen Naira) from each of them. The students also leveled the same accusation against the Chief Radiographer, Chief R. C. Emeribe. I was not given any opportunity to ask the students any questions.”

Answering further question as to when the students pointed at him, the appellant answered on the same page 52 lines 19-25 thus:

“It was after the Ministry had suspended the head of the department and the very person whom the gatemen allegedly sent students to. I was then acting as the Head of the x-ray department. An identification parade was conducted when the three students pointed at me as having allegedly received money from them.”

When asked why the Head of x-ray department was suspended, the appellant answered thus:

“The head of the department was suspended when the staff who accused (him) of receiving extra remuneration from patients for x-ray made statements to the army that what he did was a general practice in the x-ray department.”

(See page 52 lines 26-30 of the record).

From the scenario above, one would find that the appellant was the one alleging that he was not given opportunity to cross-examine the students. That is very fundamental for it has the tendency of rendering the proceedings of the panel a nullity if that were true. True enough, the appellant subpoenaed the Solicitor-General of the Ministry of Justice to tender the documents. The Solicitor-General was in court on an occasion but left as he was said not to have the required papers with him. See page 55 lines 14-18 of the record.

See also page 56 Iines 13-14. For one reason or the other, the adjournments continued. See page 58 lines 13-20. Thereafter, there were several adjournments. Wherefore the court gave the appellant ultimatum to find his counselor, his case would be closed. See page 58 lines 15-31. At the next date of hearing, appellant chose to close his case without tendering the document. See page 59 lines 14-17.

If the Solicitor-General was on subpoena and he refused to show up, there was a method of making him comply with such court order and to force him to attend to court with what was required. The appellant never took any such steps but chose to keep aloof. He cannot now complain of non-production of a document he could easily produce by going through the proper legal channel.

By production of the document, the court would be in a position to peruse same, which would assist it to verify the claims of the appellant that he was not given opportunity to cross-examine the students. Where is the evidence that he insisted on putting across any question and was not allowed to do so? Only the production of the proceedings will reveal the exact situation. This was not produced and the appellant did not do anything about the non-production. He cannot now attack the content of a document he could use to establish his own case, which he failed to produce. The court was, therefore, right to presume its contents as being against the case of the appellant.

Section 149(d) Evidence Act reads:

“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular, the court may presume:

(a) …

(b) …

(c) …

(d)  That evidence which could be and is not produced would, if produced, be unfavourable to the person, who withholds it.”

In this case, it was within the means of the appellant to produce or enforce the production of the proceedings at the panel but did not do so. No satisfactory reason was advanced for failure to do so before the plaintiff’s case was closed by counsel. The court was therefore, in order in construing the failure to produce it against the appellant. In short, I am of the view that the court did not misplace the burden of proof of the material facts at the trial.

On issue No.2 that is, whether the appellant was entitled to the declaration he sought at the trial. Counsel harped strongly on the issue of fraud which he said was criminal and for which the appellant was not prosecuted. Fraud can at times be in form of civil wrongdoing and at other times wrong doings amounting to crime.

In employer/employee relationship, any misconduct bordering on irregular receipts of money or extortion or gratification can be treated as misconduct qualifying the culprit for dismissal after a disciplinary committee/panel has investigated the issue.


It is not in every case of misconduct that the culprit needs be arraigned before a court for a criminal charge before disciplinary action can be taken against an erring official. Misconduct, in that con as defined by the Supreme Court means any act that could undermine the interest of the employer. See the case of Union Bank of Nigeria v. Ogboh (I995) 2 NWLR (Pt. 380) 647 at 669 paragraphs F-G (Ratio 12).

In the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) p.290 at 358 paragraphs A-C Ayoola, J.S.C. had this to say on the issue and I quote:

“On the question of the jurisdiction of the council, the submission that the proceedings related to charges of criminal nature must be rejected. In my view, where a gross misconduct can be proved without the need to find the members of staff guilty of acts amounting to a criminal offence, a tribunal conducting disciplinary proceedings cannot rightly be held to be trying a criminal charge. A breach of examiner’s ethics in the conduct of an examination or a falling below the standard of behaviour expected of a University teacher may, depending on the depravity of the act, amount to gross misconduct. It does not necessarily need to amount to a crime for it to be visited by disciplinary measures. My view of the charges levelled against the appellant is that they are, in substance, not of a criminal nature.” In short, not all acts of an erring staff may amount to a crime, particularly in this case where the appellant under cross-examination agreed that he was not accused of any fraud. See page 51 lines 14-31 quoted supra where he said inter alia:

“I appeared before the panel. The panel did not accuse me of any fraud when I appeared before them.”

Finally on this point, it needs be realized that most cases of misconduct have elements of criminality but not all such acts amount to criminal charges. Once the offence committed by an officer is within the domestic jurisdiction of the employer/department, disciplinary action in such case can be taken without recourse to criminal charge in the courts.

The appellant’s counsel had argued that the only facts considered are the facts presented by the appellant in his pleadings and evidence and once the facts can sustain the appellant’s case, then the trial court had to give judgment for the appellant. That of course is the crux of the matter. The truth is that the facts supplied by the appellant in evidence did not help the appellant’s case in any material respect instead; it tended to damage the appellant’s case. It is true that the procedure adopted by defence counsel was fraught with risk; still, the appellant supplied all the missing links. He was in fact identified at an identification parade and there was no proceeding of the said panel to show that appellant was not allowed to cross-examine the students who pointed at him. If that aspect was so vital to his defence, he had a duty to tender the proceedings to that effect as already indicated supra.

The Edict in truth made provision for staff pension, but in certain circumstances only. It did not provide for an officer involved in gross misconduct of collecting extra remuneration from students as the case of appellant shows. The said section 16 of Edict No.7 of 1980 is reproduced hereunder for ease of reference:

“16 The Board may grant pensions, gratuities and other retiring benefits to the employees of the Board in accordance with the Public Service Pension Scheme as provided in the Pensions Decree No. 102 of 1979.”

It was left to the appellant to point to that part of the Pension Decree, which compelled an employer corporation to pay pension to an erring employee dismissed for an act of gross misconduct. No such provision was ever referred to. There is no question of the Edict derogating from the provisions of the Pensions Act. It in fact made its provision subject to the Public Service Pension Scheme as provided by the Pension Decree No. 102 of 1979. Where then is the aspect of the Edict derogating from the Pension Decree to make it run contrary to section 33(1) of the Constitution as argued by counsel? The answer is none. That issue No. (b) is again answered in the negative to wit that the appellant was not entitled to the declaration, which he sought at the trial.

In effect, the appeal must fail as it lacks merit. The judgment of Maranzu, J., delivered on 13th May, 1996 is hereby affirmed. The appeal is consequently dismissed with costs assessed at N5,000.00 in favour of the defendants/respondents.



SUNDAY AKINOLA AKINTAN, J.C.A.: I had the privilege of reading the draft of the leading judgment written by my learned brother, Adeniji, J.C.A. He has fully set out the facts of the case and discussed all the issues raised in the appeal in the said leading judgment.

This is a case of an employee of the Imo State Hospital Management Board who indulged himself in illegally collecting unauthorized levies from members of the public who came to the hospital for x-ray services. When his acts came to the notice of his employers, a panel was set up to investigate the allegation. Some of the victims of his illegal extortions testified before the panel in which he was present. He was duly identified by these victims. His employers, acting on the report of the panel, dismissed the appellant from their service. His claim filed against his dismissal was dismissed by the lower court.

The present appeal is against the judgment of the lower court dismissing the appellant’s claim.There was overwhelming evidence to support the verdict of the court. The appellant has not raised any point in his appeal in this court which could warrant disturbing the verdict of the lower court. In the result, I agree with the view expressed in the leading judgment that the appeal should be dismissed. I too also make an order dismissing the appeal with costs as assessed in the leading judgment.





Appeal dismissed.




  1. C. Denigwe, EsqFor Appellant




Innocent C. Ibeawuchi, Esq.For Respondent


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