SAMUEL NIYI ABEREOLA & ANOR v. MR. ALIU TOYE & ORS
(2012)LCN/5446(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of June, 2012
CA/EK/9/2011
RATIO
“The Oxford Advanced Learner’s Dictionary, 7th Edition, defines the word “relieve” to mean – “to remove or reduce an unpleasant feeling or pain” and the word “expel” to mean – “to officially make (sb) (somebody) to leave a school or an organization.” Per YAKUBU, J.C.A.
“For, it is the law that a plaintiff is not entitled to set up a new cause of action in a Reply to a statement of defence. See Chief Kafaru Oje & Ors. V. Chief Ganiyu Babalola & Ors (1991) 4 NWLR (pt.185) 267 at 276 or (1991) 5 SCNJ 110 at 117.” Per YAKUBU, J.C.A.
“The law is that in a master/servant employment relationship such as it was between the 3rd respondent and the 1st appellant; the former had the power to dismiss the latter at any time with either good or bad or no reason at all! See the lucid explanation of the law by the Supreme Court in Chukwumah V. Shell Petroleum (1993) 4 NWLR (pt. 289) 512 at 560, per Karibi-Whyte, JSC, thus: “It is a well established principle of the common law and of Nigerian law that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all. The common law recognizes and respects the sanctity of contracts. The latin maxim pacta sunt servanda is a sacred doctrine for the preservation of contracts which is entitled to the greatest respect. Hence where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed. Ordinarily and consistent with the common law principle, the court will not impose an employee on an employer. – See Webb v. England [1860] 29 Bear 44, Lumley v. Wanger [1852] Ibe G & M G. 604. Hence an order for specific performance of contract of employment is an aberration which will rarely be made – See Francis v. Municipal Council of Kuala Lumpur [1962] 3 All ER. 633.” Per YAKUBU, J.C.A.
“To my mind, in a master/servant employment relationship, where an audit committee, as in this case, investigated the financial position of the employer and found some irregularities in the maintenance and keeping of the records of accounts, the usage of the word fraud or fraudulent or misappropriation of the funds of the employer by an employee, is in the general sense and certainly not intended to be with a criminal flavour. And to that extent, a proof of such an allegation beyond reasonable doubt will not arise. See B. A. Imonikhe V. Unity Bank Plc (2011)5 SCNJ 73 at 89 – 91.” Per YAKUBU, J.C.A.
JUSTICES:
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. SAMUEL NIYI ABEREOLA
2. EMMANUEL FEMI OGUNMODEDE – Appellant(s)
AND
1. MR. ALIU TOYE
2. MR. T. O. AYODELE
3. FEDERAL POLYTECHNIC STAFF CO-OPERATIVE MULTIPURPOSE SOCIETY LTD – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The first appellant was a staff and Manager of the third respondent whilst the 2nd appellant was a member and treasurer of the third respondent. A former President of the 3rd respondent had passed on in what appeared to be in some uncertain circumstances. The 3rd respondent set up a committee to look into it. The 3rd respondent also mandated the same committee to pry into her financial position. The said committee was named as Audit Committee. Some persons were summoned who appeared before the aforementioned committee which heard them and at the end, it issued its report which found the 1st and 2nd appellants wanting in the discharge of their duties as Manager and treasurer, respectively. The said committee recommended that the 1st and 2nd appellants be relieved of their positions. The congress of the 3rd respondent accepted the recommendation of the audit committee and at her meeting on 22nd June, 2000 approved that 1st appellant be dismissed, whilst the 2nd appellant be relieved of his position. The said congress further decided that any indebtedness by the 1st appellant to the 3rd respondent be paid by him without delay and in respect of the 2nd appellant, that all the money of the 3rd respondent which he wrongfully misappropriated to himself or owing the 3rd respondent be paid by him. Furthermore, that the 2nd appellant be expelled from the 3rd respondent, as a member thereof.
The 1st appellant had taken a loan facility from the 3rd respondent. He used the said loan and purchased a motor vehicle with the registration NO. XC 430 ADK. However, the 1st appellant who was repaying the said loan instalmentally had not finished liquidating it before he was dismissed by the 3rd respondent. Consequently, at the instance of the 3rd respondent, her agents impounded the said motor vehicle belonging to the 1st appellant. The appellants were not satisfied with their dismissal and removal by the 3rd respondent and also the seizure of the 1st appellant’s motor vehicle by the 3rd respondent. The appellants sued the respondents at the Ekiti State High Court of Justice, Holden at Ado-Ekiti in suit No. HAD/124/2006: claiming the following reliefs, to wit:
“(a) A declaration that the purported recommendation of the Audit Committee suspending and or dismissing the plaintiffs as manager of staff and treasurer of the third defendant respectively and or indicting them of financial impropriety and the ratification of same by the congress without regard to the principle of fair hearing and or procedural imperatives is altravires, unlawful, null and void, irregular, effectless and constitutional.
(b) A declaration that the stoppage of the salary and emoluments of the first plaintiff by the first and third defendants since January 2006 is unlawful, illegal, irregular, wicked and unconstitutional.
(c) An order nullifying the recommendation of the said Audit committee and the decision of the third defendant’s congress reached thereat on 22nd June, 2006.
(d) An order on the first and third defendants commencing the payment of the salary and arrears and or emoluments of the first plaintiff and reinstating the second plaintiff as the treasurer of the third defendant immediately or forthwith.
OR IN THE ALTERNATIVE
The sum of N5, 000,000 (Five Million Naira) only as compensation for damages caused to plaintiffs by defendants’ wrongful recommendation for suspension and dismissal and wrongful financial indictment of plaintiffs.
(e) A declaration that the seizure, impoundment and detention of the vehicle with registration number XC 430 ADK belonging to the first plaintiff by the first and second defendants is illegal, unlawful, irregular and unconstitutional.
(f) An order releasing the said vehicle with registration number XC 430 ADK to the first plaintiff.
(g) An order for payment of the sum of N5, 000,000 (Five Million Naira) only as general damages for the wrongful seizure and detention of first plaintiff’s said vehicle and the sum of N1, 500 (One Thousand, Five Hundred Naira) only per day as special damages for the daily money or sum realized by the said vehicle from 13th December, 2006 until the said vehicle is released to the first plaintiff by the first and second defendants.
(h) A perpetual or permanent injunction restraining the first and second defendants their agents, servants and privies from further seizing, impounding and or detaining the said vehicle with registration number XC 430 ADK or any property belonging to the first plaintiff without his consent, assent, knowledge or concurrence or legal justification.”
The respondents counter-claimed against the 1st appellant only, for:-
“A sum of N382, 925, (Three Hundred and Eighty Two Thousand, Nine Hundred and Twenty Five Naira only) representing first plaintiff indebtedness to the third defendant.”
Pleadings were filed and exchanged between the parties. The suit proceeded to hearing with each side calling witnesses and at the close of evidence viva voce by the witnesses, learned counsel for each side addressed the court upon the filing of their written addresses. Thereafter, the learned trial judge, I. O. Akeju, J., (as he then was, now JCA) dismissed reliefs (a), (b), (c) and (d) and also the alternative relief for the sum of N5 Million as damages for wrongful dismissal of the plaintiffs/appellants by the 3rd defendant/respondent. However, relief (e) of the claim was granted with the sum of N199, 500.00 as special damages and N50, 000.00 as general damages.
The counter-claim of the defendants/respondents also succeeded partially and the sum of N177, 000.00 only was awarded to the 3rd respondent against the 1st appellant only.
This appeal is against the decision of the court below delivered on 30th March, 2010. The appeal is anchored on four grounds, to wit:
“(A) The lower court erred in law when it dismissed reliefs (a) (b) (c) and (d) as well as the alternative relief for the sum of N5,000,000 (Five Million Naira) as damages. And this has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(i) The committee set up to look into the financial position of the 3rd respondent indicted the appellants of financial impropriety without any justification.
(ii) The committee was set up while a case was pending in court on the terms of reference of the committee.
(iii) The committee has no locus standi to proceed or sit or be set up at all.
(iv) Appellants were not given adequate time and facilities to defend themselves before they were indicted and so there was not fair hearing.
(v) The committee was bias as only the appellants were singled out and marked for financial misappropriation.
(vi) The decision of the committee and the congress were hasty and without regard to all procedural imperatives and or other alternatives as stipulated by appellants’ terms or appointment or contract of employment.
(vii) Appellants were made to face criminal allegation by the respondents under the guise of looking into the financial position for which only a competent court can do.
(viii) Only 1st appellant was owing the 3rd respondent which is not a criminal offence for which an indictment can emanate from, come about or flow from.
(B) The lower court erred in law when it failed to address the issues in reliefs (b) (c) (d) as well as the alternative relief for the sum of N5,000,000 (Five Million Naira) as compensation for damages before dismissing them.
And this has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(i) It is conceded that the salary and emoluments of the 1st Appellant was stopped since January, 2006 whereas he was dismissed in June, 2006.
(ii) Re-instatement of the appellants by the 3rd respondent is a very vital issue that needed to or ought to have been addressed by the learned trial judge.
(iii) All issues in a case should be, ought to and must be addressed by a court adjudicating thereupon.
(C) The lower court erred in law when it held that it cannot find in any part of exhibit 2 where appellants were alleged of crime whereas the basis of appellants dismissal and termination was financial impropriety which is a criminal allegation that ought to have persuaded the learned trial judge into annulling the decision of the committee and congress.
And this had occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(i) Allegation of financial impropriety is a criminal offence.
(ii) The whole garmult or bulk of respondents’ case against appellants and their justification for dismissing and terminating them respectively is allegation of financial impropriety.
(iii) Since appellants committed no crime they ought not to have been respectively dismissed or terminated by respondents.
(iv) Appellants were not fairly heard at all.
(v) The learned trial judge noticed, appreciated and pronounced that only the courts can try allegation of crime and not domestic tribunals or committees.
(vi) The court ought to have nullified the recommendation of the committee and the decision of the congress respectively dismissing and terminating the employment of appellants by virtue of the fifty particular above.
(D) The judgment of the lower court is against the weight of evidence.”
The appellants’ brief of argument was dated and filed on 12th May, 2011. Learned counsel for the appellants, distilled and formulated four issues for determination in the appeal as follows:-
“(A) Whether the learned trial judge was right in dismissing reliefs ‘A’ ‘B’ ‘C’ ‘D’ and the alternative claim of the Appellants at the lower court in view of all the relevant facts and circumstances of the case.
(B) Whether it is permissible for the learned trial judge to ignore to pronounce or address the issues in reliefs ‘B’, ‘C’, ‘D’ as well as the alternative reliefs for the sum of N5,000,000 (Five Million Naira) as compensation for damages before dismissing same.
(C) Whether the finding of the learned trial judge in Exhibit ‘2’ where he observed that he cannot find therein where the Appellants were alleged of crime is not sufficient to suade (sic) him into annulling the decision of the committee and congress dismissing and suspending the appellants respectively which decision was based on financial crime in Exhibit 2.
(D) Whether the judgment of the court is not against the weight of Evidence.”
On their part, the respondents, on 27th May, 2011 filed their brief of argument dated on the same date. In it, a sole issue for determination was formulated, inter alia:
“WHETHER THE APPELLANT PROVED THEIR CLAIMS BEFORE THE LOWER COURT TO ENTITLE THEM TO JUDGMENT.”
The appellants on receipt of the respondents’ brief of argument, filed a Reply brief of argument dated 10th June, 2011 on the same date. At the hearing of the appeal, Mr. Taiwo Ogunmoroti, for the appellants, adopted and relied on the main and Reply appellants’ briefs of argument and urged us to allow the appeal. For the respondent Mr. Emmanuel Bamidele Omotoso, Esq., who settled their brief of argument, was represented by Mr. Adabembe, of counsel who adopted and relied on the said brief of argument and urged that the appeal be dismissed.
In considering this appeal, I will adopt the four issues formulated for determination by the appellants as they are more comprehensive and the respondents’ sole issue is subsumed therein.
Arguing issues A and B learned counsel to the appellants, submitted that since the appellants in their pieces of evidence denied the allegations of embezzlement and misappropriation of the 3rd respondent’s fund/money, which according to him, were not contradicted by the respondents’ witnesses, reliefs A, B, C, and the alternative relief were proved and that it was a miscarriage of justice, when these reliefs were denied the appellants. He relied on West African Examinations Council (WAEC) V. Oshonebo (2006) 12 NWLR (pt.994) 258 at 276 paras: A – B; Gaji V. Paye (2008) 8 NWLR (pt. 823) at 605 paras: A-C.
Referring to pages 6-7 of Exhibit 2, learned counsel contended that the records therein only showed that the 1st appellant was allegedly owing the 3rd respondent, the sum of N422,705 and not that he embezzled nor misappropriated the 3rd respondent’s money. He referred to the advanced learner’s Dictionary, 6th edition which defines the word “misappropriation” to mean:
“To take somebody else’s money or property for yourself especially when they have trusted you to take care of it;”
and that the indictment of the appellants by the respondents, border on criminal allegations which required a proof beyond reasonable doubt by virtue of Section 138 of the Evidence Act. He referred to Umana V. Attah (2004) 7 NWLR 63 at 98-99; Archibong v. The State (2004) 1 NWLR (pt.855) 488 at 508-509; Ekocha V. C.S.C Edo-State (2004)3 NWLR (pt.861) 494 at 507; NEPA V. Adeyemi (2007) 3 NWLR (pt.1021) 315 at 332-333 to the effect that if any person is accused of a criminal offence, he must be tried by the ordinary court of the land in an open court and not by a disciplinary tribunal.
Mr. Ogunmoroti furthermore submitted in reliance on Exhibit 1 a Legal advice from the Ministry of Justice, Ado-Ekiti, which exonerated the appellants and discharged them of any complicity in relation to the death of the late president of the 3rd respondent. His contention is that since the said panel assumed jurisdiction to inquire into the death of the former president of the 3rd respondent, the appellants ought to have been given adequate time and facilities to prepare for their defence as guaranteed under section 36(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria, so the failure to so do by the audit panel, breached the appellants’ right to fair hearing. He relied on Arinze V. F.B.N. Ltd (2004) 12 NWLR (pt.888) 663 at 675-676.
Learned counsel referring to Exhibit 4 – the staff conditions of service of the 3rd respondent, at paragraphs 8.1.1, 8.1.2 and 8.1.4 thereof, relating to warning, termination of appointment and dismissal of a staff respectively, submitted that there is no evidence that the appellants were either queried or given oral or written warnings by the 3rd respondent, before they were dismissed by the 3rd respondent. He also submitted that the 3rd respondent did not comply with the relevant provisions of Exhibit 4 and urged us to hold that their dismissal and termination respectively from the service of the 3rd respondent, was unlawful, irregular, illegal and unconstitutional. He referred to E. A. Industry Ltd. V. Merfund (2009)8 NWLR (pt.1144) 535 at 592; Ishemo V. Julius Berger (Nig) Plc (2008) 6 NWLR (Pt.1084) 582 (SC) at 610 – to the effect that where an employer terminates and dispenses with the services of an employee contrary to the conditions of service, such termination is usually nullified by the court and the employee is entitled to appropriate damages. He relied also on Achu V. Civil Service Commission of Cross Rivers State (2009) 3 NWLR (pt.11299) 475 at 502; Evans Bros. Nig. Publishing Ltd. V. Falaiye (2003) 13 NWLR (pt.838) 564 at 589; D.A. Nig A.I.E.P. Ltd. V. Oluwadare (2007) 7 NWLR (pt.1033) 336 at 359 where this court held that:
“Any disciplinary measures taken by an employer against an employee upon an allegation of misconduct, such as termination of employment or dismissal must be in accordance with the laid down procedure as provided by the conditions of service….”
Finally on this issue, Mr. Ogunmoroti submitted that members of the 3rd respondent’s audit panel were not registered auditors and therefore could not have validly made Exhibit 2, hence the 3rd respondent’s congress could not have validly acted upon Exhibit 2 as nothing can be put on nothing. He relied on N.M.B. Plc V. Onabolu (1999) 12 NWLR (pt. 630) 302 at 371. Learned counsel argued that reliefs B, C and D and the alternatives relief were not considered by the learned trial judge.
Mr. Omotoso, learned counsel to the respondents, at paragraphs 4.05 – 412 of his brief of argument, submitted that the burden was on the appellants to prove that they were wrongfully terminated from the employment of the 3rd respondent by the latter, contrary to the 3rd respondent’s conditions of service – Exhibit 4 at Regulation 8.0 thereof which defined what amounts to misconduct as:
(i) “Refusal to enter records of societies under his/her care up to date always;
(ii) Financial embarrassment and embezzlement;
(iii) Any other behavior considered to be distasteful by the Management Committee.”
Learned counsel also referred to Regulation 8.1 which dealt with the four (4) modes of the disciplinary measures, such as Warning, Termination, Resignation and dismissal, for an employee to leave the services of the 3rd respondent. And with respect to Regulation 8.1.2 of Exhibit 4, it is stated that a staff’s appointment shall be terminated at anytime if its established to the satisfaction of the management committee that the staff is not performing his/her duties efficiently or if he/she is a source of embarrassment to the 3rd respondent and that it was the duty of the appellants to have pleaded to facts which they ought to prove that the 3rd respondent breached the regulations in Exhibit 4, in relieving them of their employments. He referred to WAEC V. Oshonnebo (2006) 12 NWLR (pt.994) 258 at 271 paras. D – F. Mr. Omotoso further submitted that the parties’ freedom of contract carries with it, the inevitable implication of the sanctity of their contract.
Thus, if any dispute arises between the parties with respect to the contract, it is the terms in the written conditions of service that will be used as a guide to the interpretation or determination of the dispute. Therefore, the terms of the contract of service between the parties are binding on the parties thereto. He referred to Ifeta V. S.P.D.C. (Nig) Ltd. (2006) 8 NWLR (pt.983) 585 at 605 paras: A – B.
Mr. Omotoso responding at paragraphs 4.13 to 4.22 of his brief of argument, with respect to the appellants’ contention that the 3rd respondent’s audit committee did not give them a fair hearing on the allegation of having had a hand in the killing of the 3rd respondent’s late President, submitted that there is evidence at page 6 of Exhibit 2 that the audit committee did not delve into the circumstances which led to the death of the said late president of the 3rd respondent. And that the court below at page 185 of the records of appeal found that the audit committee was cautious on the matter and did not delve into what led to the death of S. O. Oni, the late President of the 3rd respondent.
Learned counsel for the respondents also submitted that the main assignment of the audit committee was to pry into the financial position of the 3rd respondent and for which it received memoranda from her members and other interested individuals and of course, the appellants. So according to him, the audit committee was not set up by the 3rd respondent to determine the guilt or otherwise of the appellants, but that the appellants being the manager and treasurer respectively of the 3rd respondent appeared before the said audit committee and gave evidence as indicated in Exhibit 2.
With regard to the appellants contention that members of the audit committee were not registered auditors, Mr. Omotoso submitted that such an allegation was neither pleaded nor evidence led on it by the appellants at the court below, so we should discountenance it since submissions of counsel cannot be substituted for non-evidence on the records of appeal.
Furthermore, it was the submission of Mr. Omotoso at paragraphs 4.23 – 4.40 of his brief of argument to the effect that the 3rd respondent had the power to dismiss any of her staff for any misconduct which was considered distasteful to her, in reliance on Regulation 8.0 of Exhibit 4 and sections 11 and 28(b) of the Federal Polytechnic Ado-Ekiti Cooperative Multipurpose Society Ltd. Amended Bye Law and that the audit committee never indicted the appellants for financial misappropriation or fraud but that at page 8 of Exhibit 2, it found, to wit:
“Investigation revealed that the Manager is only collaborator with the late president and the treasurer to actualized their selfish desires. This is prejudicial to the content of the condition of service given to him. Mr. Abereola Samuel, the Manager, who is supposed to be the watchdog of the cooperative, is only a collaborator, milking the cow dry. His loan balance as at 31st December, 2005 stands at N127, 000 and his credit purchase also stood at N177, 500 making a total of N304,500. It should be noted that Mr. Abereola has no asset of any kind in the Cooperative Society to have warranted so much. Therefore he should be relieved of his position by dismissal.”
In effect, according to Mr. Omotoso, the audit committee found that the appellants were not faithful in the discharge of their duties to the 3rd respondent, which was incompatible with their employment, although they might not be dishonest. He referred to Agbo V. CBN (1996) 10 NWLR (pt.470) 370 at 377; Ajayi V. Texaco Nig. Ltd (1987) 3 NWLR (pt.62) 577. And that since Exhibit 2 indicates that the appellants were given an opportunity to appear and they did appear before the audit committee, the proceedings thereat, needed not to have been in the form of a trial, involving an examination in chief, cross-examination and re-examination, before it could amount to a fair hearing. He referred to NEPA V. Ango (2001) 15 NWLR (pt.737) 627 at 654 – 655; paras A – C.
Learned counsel also submitted that the appellants’ failure to join members of the audit committee in the suit was fatal to their claim as the court cannot make any order against their recommendation for the dismissal of the appellants, because the members of the committee were not before the court as parties. He relied on Kokoro V. Lagos State Govt. (2001) 11 NWLR (pt.723) 246, Lawal V. P.G.P (Nig) Ltd (2001) 17 NWLR (pt.742) 393 at 405 – 406.
Touching on the 2nd appellant’s claim for reinstatement to his employment, Mr. Omotoso submitted that since the 2nd appellant’s employment was not with any statutory flavour, he could only be entitled to salaries in lieu of notice, if he proved that he was wrongfully dismissed. He relied on Opuo V. NNPC (2001) 14 NWLR (pt.734) 552 at 576 – 577, paras H – A.
Again responding to the question or allegation of lack of fair hearing by the appellants, Mr. Omotoso at paragraphs 4.41 – 4.48 of his brief of argument, submitted that the appellants never raised the issue of any denial of legal representation when they appeared before the audit committee, at the court below and that the 1st appellant’s evidence under cross-examination on pages 134 – 137 of the records of appeal is in pari material with the statement credited to him by the audit committee in Exhibit 2. Furthermore, learned counsel contended that the appellants needed not have been tried by a court of law and found guilty before their services were summarily dispensed with by the 3rd respondent, at common law. He relied on Arinze V. First Bank (Nig) Ltd. (2001) 1 NWLR (pt. 639) 78 at 100 – 101 para D – E where this court, per Olagunju, JCA (now of blessed memory) held thus:
“It seems to me from the perspective of the decision on the powers of an employer to dismiss summarily his employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the employee was first prosecuted for the criminal offences arising from his acts of misconduct pales into insignificance once the court is satisfied that the employee was given a fair hearing in the sence of being confronted with the allegation against him and afforded the chance to make a representation in his own defence. In sum, contrary to the argument of learned counsel for the appellant the principle that where the act of misconduct by an employee also amounts to a criminal offence the criminal offence must first be prosecuted before the employer can exercise his power of summary dismissal of the employee is not intended as law of the Medes and Persians. It is not an immutable principle”.
Learned counsel to the respondents submitted that the appellants were only invited by the audit committee as witnesses because of their position as Manager and treasurer respectively, of the 3rd respondent to assist the said committee in the discharge of its functions as contained in Exhibit 2.
Finally, learned counsel in his response at paragraphs 4.49 – 4.51 of the respondents’ brief of argument, in respect of the stoppage of salary and emoluments of the 1st appellant, submitted that since he did not give evidence as to how much he was earning as salary per month and of his entitlements/emoluments, he had proved nothing, to have entitled him to reliefs (b) and (d) of the claim, hence the learned trial judge devoted not much time and energy on those claims which he dismissed. He urged us to dismiss the appeal.
Mr. Ogunmoroti, for the appellants, in his Reply brief of argument submitted that the issue of appellants’ employment not being with statutory flavour as argued by Mr. Omotoso was a fresh issue and without the leave of this court, the same ought to be discountenanced. He referred to Ilona V. Idakwo (2003) 11 NWLR (pt.830) 53 at 77. So also, Mr. Ogunmoroti, submitted that the issue of the appellants’ failure to join members of the audit/committee as parties in the suit is a fresh issue being canvassed in this court, without any leave sought and obtained by the respondents. He urged us to discountenance it too. And that in any event, it was the audit/committee which recommended the dismissal and termination of the appellants and the same was carried out by the congress of the 3rd respondent, so the appellants’ reliefs were proper and appropriate.
Furthermore, learned counsel to the appellants submitted that the question of joinder or non-joinder of parties cannot render a suit as being incompetent and that by virtue of Order 11 Rule 5(1) of the Ondo State High Court (Civil Procedure) Rules, applicable in Ekiti State, the court can order for a joinder of a party to the suit, just as any of the parties to the suit, can apply that another person be joined as a party to the suit. Therefore, he concluded by submitting that the non-joinder of the members of the audit/committee is not fatal and did not vitiate the proceedings at the court below.
RESOLUTION OF ISSUES A AND B
The 1st appellant was employed by the 3rd respondent as a Sales Clerk vide Exhibit 3 on the 5th January, 1995. The 2nd appellant is a staff of the Federal Polytechnic, Ado-Ekiti. He works in the Bursary Department of the said Polytechnic. He was not a staff of the 3rd respondent. The 1st appellant said he was promoted to the office of Manager of the 3rd respondent whilst the 2nd appellant said he was elected to the office of treasurer of the 3rd respondent.
The congress of the 3rd respondent had on 5th January, 2006 set up an Audit committee to look into the circumstances which led to the death of its late President – S. O. Oni and also to pry into the financial position of the 3rd respondent. The said committee in its report – sees Exhibit 2, found the 1st and 2nd appellants wanting in the discharge of their duties as Manager and treasurer respectively, of the 3rd respondent. Hence in the said Exhibit 2, the audit committee recommended that the 1st appellant be dismissed as a staff of the 3rd respondent whilst the 2nd appellant was recommended to be relieved of his position as treasurer and expelled as a member of the 3rd respondent. These recommendations were accepted by the congress of the 3rd respondent held on 22nd June, 2006; whereupon, Exhibit 16 dated 27th June, 2006 was written to the 1st appellant, thus:
“Mr. Abereola Samuel Niyi,
Federal Polytechnic Road,
Erinfun, Ado-Ekiti.
LETTER OF DISMISSAL
Sequel to the Investigation/Auditing Panel set up by the congress held on 5th January, 2006 to look into the causes of the death of late S. O. Oni (the President) and financial position of the society.
The report of the Investigation/Auditing Panel was made available and presented to the congress held on 2th June, 2006.
Congress noted your disloyalty to the society, therefore, the Board of Management of this society hereby write to inform you that in accordance to the recommendation of the Panel which was accepted by the congress, you are hereby dismissed from the service of the Co-operative Society with immediate effect.
On the note of this, you are expected to pay back all your indebtedness to the coffer of the Society within two weeks.
Below are your asset and liabilities to the Society:
Compulsory Saving = 29,419.30 Asset in care of the society
Loan Balance = 127,000.00
Sales = 177,500.00
I.O.U. = 21,395.00
Refund = 49.050.00
374,925.00
Amount to refund back to the Society are = N345,505.70
(sgd) (sgd)
Mr. Toye Aliu Mr. Idowu Adebayo
President Secretary”
The 3rd respondent also wrote Exhibit 17, dated 27th June, 2006 to the 2nd appellant, to wit:
“Mr. Ogunmodede, E.O.
Bursary Department,
Federal Polytechnic,
Ado-Ekiti.
EXPULSION FROM THE CO-OPERATIVE SOCIETY
Sequel to the Investigation/Auditing Panel set up by the Congress held on 5th January, 2006, to look into the cause the death of late Oni, S. O. (The President of the Society) and financial position of the Society.
The report of this investigation/Auditing Panel was presented to the congress on 22nd June, 2006 and the congress has according to Society in Section 28 c and h and section 11 a and e, you are relieved of your position as Treasurer and expelled as a member of the above-named Co-operative Society with immediate effect.
The Society will continue with deduction of your contribution until the time that you will finish the payment of your indebtedness to the coffer of Society.
Your assets and liabilities stood as follows as at May, 2006.
(1) Mr. Ogunmodede, E. O.
Share = 65,622.00
Savings = 151,022.00
216.644.00
Loan balance = 415,890 (as at May, 2006)
Sales differed = 46,000 (as at July, 2006)
I.O.U. = 50,000
Refund = 49.050
(2) Mrs. Ogunmodede, F. S.
Share = 21.450.00
Savings = 33,171.00
54.621.00
Loan Balance = 96,000 (as at May, 2006)
Total Asset = 271,265
Total Debt = 656.940
385,675 – amount to be refunded to the Society.
(sgd) (sgd)
Aliu Toye Idowu Adebayo
President Secretary”
The 1st and 2nd appellants’ contention in these issues was that the learned trial judge was not right in the dismissal of their reliefs A, B, C, D and their alternative claim and that the learned trial judge did not address Reliefs B, C, and D and the alternative relief.
I have perused the records of appeal and particularly the documentary Exhibit 2 – the Report of the Audit committee; Exhibit 4 – the 3rd Respondent’s Conditions of Service and Exhibit 5 – the Minutes of the 3rd Respondent’s congress of 22nd June, 2006.
Exhibit 2 clearly indicated that both appellants appeared before the audit committee and gave evidence in respect of their roles in the management of the finances of the 3rd respondent. However, there is no full record of the proceedings of the audit committee and none of the parties pleaded it. The appellants, if they had any complaint in respect of the proceedings at the audit committee, were duty bound to have pleaded the complaint in their statement of claim. They did not. It was at paragraph 10(j) of the appellants’ Amended Reply to the Amended Statement of defence that the issue of not being given the opportunity to hire a lawyer to defend them and that “the committee was basically and notoriously kangaroolike” was raised. Hence, the appellants were setting up a new issue in their Amended Reply to the amended statement of defence, which was most inappropriate. For, it is the law that a plaintiff is not entitled to set up a new cause of action in a Reply to a statement of defence. See Chief Kafaru Oje & Ors. V. Chief Ganiyu Babalola & Ors (1991) 4 NWLR (pt.185) 267 at 276 or (1991) 5 SCNJ 110 at 117.
Indeed, an employee has the right to be heard before any decision is taken against him by his employer. The principle or doctrine of fair hearing is constitutionally guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria and it cannot be wished away at any inquiry, investigation or trial. Just see Adigun V. Attorney General of Oyo State (1987) 1 NWLR (pt.53) 678 at 709; Union Bank of Nigeria V. Nwololo (1995) 6 NWLR (pt.400) 127; Ogundoyin V. Adeyemi (2001) 13 NWLR (pt.750) 430; First Bank of Nigeria, Plc. V. T.S.A. Industries Ltd. (2010) 7 SCNJ 384 at 433 -434.
In the instant case, I am satisfied that the appellants’ complaint of a denial of fair hearing is not available to them. And if they were determined to complain against the correctness of Exhibit 2, they ought to have known what to do.
Learned counsel to the appellants dwelt extensively on the question of the appellants having been accused or indicted in Exhibit 2 of misappropriation and fraud which bordered on criminality when the audit committee was not a court or tribunal vested with the jurisdiction to determine the guilt of an accused person. To my mind, in a master/servant employment relationship, where an audit committee, as in this case, investigated the financial position of the employer and found some irregularities in the maintenance and keeping of the records of accounts, the usage of the word fraud or fraudulent or misappropriation of the funds of the employer by an employee, is in the general sense and certainly not intended to be with a criminal flavour. And to that extent, a proof of such an allegation beyond reasonable doubt will not arise. See B. A. Imonikhe V. Unity Bank Plc (2011)5 SCNJ 73 at 89 – 91.
The dismissal of the 1st appellant – an employee of the 3rd respondent (See: Exhibit 16) was that he was disloyal to the 3rd respondent. Exhibit 4 – the 3rd respondent’s conditions of service at Regulation, 8. 1. 4 thereof is explicit as to the power of the 3rd respondent to dismiss an employee/staff. Learned counsel to the appellants, seem to me to have equated the status of the 1st appellant’s employment, which is an employment at common law, of master/servant relationship with that of a civil servant or public officer whose appointments are with statutory flavour, hence he laboured under the impression that the 1st appellant must be queried and warned before he could be dismissed by the 3rd respondent. The law is that in a master/servant employment relationship such as it was between the 3rd respondent and the 1st appellant; the former had the power to dismiss the latter at any time with either good or bad or no reason at all! See the lucid explanation of the law by the Supreme Court in Chukwumah V. Shell Petroleum (1993) 4 NWLR (pt. 289) 512 at 560, per Karibi-Whyte, JSC, thus:
“It is a well established principle of the common law and of Nigerian law that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all. The common law recognizes and respects the sanctity of contracts. The latin maxim pacta sunt servanda is a sacred doctrine for the preservation of contracts which is entitled to the greatest respect. Hence where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed.
Ordinarily and consistent with the common law principle, the court will not impose an employee on an employer. – See Webb v. England [1860] 29 Bear 44, Lumley v. Wanger [1852] Ibe G & M G. 604. Hence an order for specific performance of contract of employment is an aberration which will rarely be made – See Francis v. Municipal Council of Kuala Lumpur [1962] 3 All ER. 633.
In the contrary case and following the common law principle, termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of the confidential relationship between master and servant which cannot continue in the absence of mutuality.”
Further see: E. A. Garuba V. Kwara Investment Co. Ltd & 2 Ors. (2005) 1 SCNJ 290 at 302- 303.
I am satisfied that Exhibit 16 effectively ended the master/servant relationship between the 3rd respondent and the 1st appellant, who was found to be disloyal to the former.
Now, in respect of the 2nd appellant, he was not a staff of the 3rd respondent, so he could not have been terminated or dismissed by the latter. As I indicated earlier in this judgment, he was elected to the office of treasurer of the 3rd respondent. Therefore, in the circumstances, Exhibit 4 has no applicability to him. He was relieved of his position as treasurer and expelled as a member of the 3rd respondent vides Exhibit 17.
The Oxford Advanced Learner’s Dictionary, 7th Edition, defines the word “relieve” to mean – “to remove or reduce an unpleasant feeling or pain” and the word “expel” to mean – “to officially make (sb) (somebody) to leave a school or an organization.”
There is no record as to how 2nd appellant became a member of the 3rd respondent and no record as to how he was to be made to leave the society. It is clear to me that the 2nd appellant fought his removal from the position of treasurer and expulsion from the 3rd respondent as a member, on the premise of an employee of the 3rd respondent. He undeniably did not run his race on his own lane nor did he fight his fight in his own ring. It is therefore amusing and amazing for him to claim a relief that he be re-instated as the treasurer of the 3rd respondent.
The 2nd appellant said he could be suspended as a member of the 3rd respondent only “where there is a prove (sic) (proven) case of embezzlement against me”, under the 3rd respondent’s Bye Law. The question is, was the 2nd appellant’s claim anchored on the Bye Law of the 3rd respondent? Were the facts leading to the applicability of the 3rd respondent’s Bye law, to his claim, pleaded in the statement of claim? The answers to the above questions are clearly in the negative.
That now brings me to the contention by Mr. Ogunmoroti; to the effect that the learned trial judge did not give reasons why he did not grant reliefs B, C & D and the alternative relief claimed by the plaintiffs/appellants. The court below at page 187 of the records of appeal said:
“I find nothing offensive in the proceedings and recommendations of the committee as well as the acceptance of these recommendations by the 3rd defendant and in consequence relief (b), (c) and (d) as well as the alternative relief for N5 Million as damages are not granted. They are dismissed.”
Now, I have perused the judgment of the court below, particularly from pages 180 – 186 and it is crystal clear to me that the learned trial judge did not separate relief a from reliefs b, c, d and the alternative relief of the plaintiffs/appellants. Right from page 183 of the records of appeal, the learned trial judge began to consider all the reliefs (a), (b) (c) and (c) together and at the bottom of page 183, he said:
“The plaintiffs have based the declaratory reliefs they are seeking on absence of fair hearing by the committee set up by the 3rd defendant.”
Thereafter, his Lordship considered whether or not the allegation of lack of fair hearing was made out by the plaintiffs/appellants. This was at pages 184 – 186 of the records of appeal. He came to the conclusion that Exhibit 2 was unimpeachable, that is, the allegation of lack of fair hearing was not established by the plaintiffs/appellants. This was at page 187 of the records of appeal. It is apparently clear to me that the reason for the failure of all the reliefs of the plaintiffs/appellants, given by the learned trial judge, was the failure of the appellants to establish the allegation of lack of fair hearing made against the audit committee set up by the 3rd defendant.
Perhaps, learned counsel to the appellants, wanted or expected the learned trial judge to have considered the reliefs (a), (b) (c) (d) and the alternative relief of N5M damages one after the other. That may well be so, but it is a question of style in judgment writing and each judge is entitled to his own style. The important thing is that the judge must be abreast with the issues and reliefs being raised and claimed by the plaintiffs which he is obliged to consider and determine in his judgment, which to my mind, the learned trial judge did in the instant case. As a counseled by Aniagolu, JSC in Ejowhomu V. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.30) 1, the appellate court is not avant-garde with powers of review of cases decided by the High Court like an ombudsman, going about raking up and looking for mistakes, supposedly made by the trial court or wishing that the trial judge had written his judgment in a particular style. The learned trial judge, having found that the allegation of lack of fair hearing as made by the appellants was a ruse, needed not to have engaged in the tautology of saying that for that reason, relief B, failed and was dismissed. Ditto reliefs C, D and alternative relief for N5M damages claimed by the plaintiffs/appellants. For all I have been saying, I resolve issues A and B against the appellants.
I shall take issues C and D together.
Issue C questions the observation by the learned trial judge at page 186 of the records of appeal in respect of Exhibit 2, that:
“I cannot find in any part of exhibit 2 where the plaintiffs were alleged of crime.”
Mr. Ogunmoroti, for the appellants submitted that since at page 8 of Exhibit 2, it was said that a discovery that the 3rd respondent’s money was “fraudulently expended to satisfy personal interest,” it meant that the appellants stole or converted the 3rd respondent’s money.
I do not think that there is any further need for me to flog a dead horse on the issue of whether or not the usage of the word “fraudulently” expending money by an employee of an employer’s money, in the circumstances of this case tantamount to an allegation of criminality. The same was adequately addressed under issue A, earlier in this judgment. I therefore resolve issue C against the appellants.
Issue D – relates to the weight of evidence. Learned counsel to the appellants adopted his submissions on issues A, B & C to issue D and urged that the appeal be allowed.
Having resolved issues A, B and C against the appellants, I am satisfied that there is no other piece of evidence to sustain issue D which has no merits. I resolve it against the appellants.
The appeal failed on all grounds of appeal and issues raised for determination by the appellants. The same is accordingly hereby dismissed.
The judgment in suit No. HAD/124/2006, delivered on 30th March, 2010 is hereby affirmed.
The sum of N50, 000.00 costs is awarded to the respondents against the appellants.
SOTONYE DENTON-WEST, J.C.A.: I have been privileged to view and read the well orchestrated judgment of my learned brother, Tom Shaibu Yakubu, J.C.A. just delivered. He had swayed me into concurring with him in views as canvassed in the judgment. Therefore, I am in attunement with his reasoning and conclusions in the determination of the issues therein.
By way of further support or approval to the stance taken by his Lordship in the lead judgment, I would like to add the following by saying that it is the duty of a court to do substantial justice to either party and this is what the trial court in its judgment effected when he equitably awarded both parties whatever was really due to them.
In fact, I was at home with the submission of learned counsel to the respondent when he submitted that the Appellants need not be tried by a court of law and declared guilty before their services could be dispensed with by an employer at common law relying on the authority of ARINZE V. FIRST BANK NIG LTD. (2001) 1 NWLR (PT.639) 78 @ 100-101 PARAS D-E, Per Olagunju, J.C.A (of blessed memory) when he declared thus:
“It seems to me from the perspective of the decision on the powers of an employer to dismiss summarily his employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the employee was first prosecuted for the criminal offences arising from his acts of misconduct pales into insignificance once the court is satisfied that the employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make a representation in his own defence. In sum, contrary to the argument of learned counsel for the appellant the principle that where the act of misconduct by an employee also amounts to a criminal offence the criminal offence must first be prosecuted before the employer can exercise his powers of summary dismissal of the employee is not intended as law of the Medes and Persians. It is not an immutable principle.”
I completely share the views of learned jurist, Olagunju, J.C.A, because these days most employees who are criminally minded and had proceeded to cheat their employers would always resort inter alia to all sorts of defences that zero down to a plea of lack of “fair hearing” when it is crystal clear that even a blind man could see that the employee has actually stolen. What else could be said? I believe the Appellants had a fair hearing in this matter.
Consequently from the foregoing and more particularly the lead judgment, I also hold that the appeal does not attract any merit and I accordingly dismiss the appeal and anchor with the judgment of the lower court delivered on 30th March, 2010.
I abide by the award of N50, 000.00 cost awarded in favour of the Respondents against the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother, Tom Shaibu Yakubu, JCA.
I agree with his reasoning and conclusion arrived at in holding that the appeal lacks merit and the order dismissing same.
I also affirm the judgment of the trial court and abide by the order made as to costs.
Appearances
Taiwo Ogunmoroti, Esq. For Appellant
AND
Rotimi Adabembe, Esq. For Respondent
