SODEKE v. NDLEA
(2021)LCN/15561(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, January 08, 2021
CA/L/446/2017
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ADESOJI SODEKE APPELANT(S)
And
NATIONAL DRUG LAW ENFORCEMENT AGENCY RESPONDENT(S)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the National Industrial Court sitting in Lagos (the Court below) whereby it dismissed the appellant’s action challenging the termination of his employment by the respondent.
Sketchily stated, the appellant was employed by the respondent on 25.06.90. He rose to the rank of State Commander for Ekiti State in 2007. The appellant then ran into trouble with the respondent on allegation that he had altered the voluntary confessional statement of a drug suspect, and refusal to destroy an Indian hemp farm. It led to the interdiction, investigation and subsequent termination of the appellant’s employment in 2008.
The appellant was miffed by the termination of his employment. He sued the respondent at the Court below challenging the termination of the employment on the major ground that the respondent did not accord the appellant fair hearing before it terminated his employment.
The respondent maintained contrariwise that not only was the appellant given the opportunity to be heard, the appellant was actually heard as he was queried and representations were made by the appellant upon which the respondent acted to terminate his employment.
The Court below accepted the version of the respondent and dismissed the action brought by the appellant; hence the appeal.
In arguing the appeal based on the sole issue for determination derived from the two (2) grounds of appeal contained in the notice of appeal, the appellant maintained in his brief of argument filed on 24.05.17 that because the respondent denied him knowledge of, and access to the evidence and representations forming the basis of the termination of his employment before the respondent terminated the employment, the respondent denied him fair hearing; therefore the respondent’s decision that terminated his appointment offended his right to fair hearing and that same should be quashed on that ground citing in support thereof the cases of Atano v. A. – G., Bendel State (1988) 2 NWLR (pt. 75) 132, Okoreaffia v. Agwu (2008) LPELR – 4724.
The appellant also argued that since the respondent received evidence or representation behind his back which the respondent used in terminating his employment he was denied the opportunity to cross-examine those that gave the evidence or representation against him, which infringed his right to fair hearing, therefore the Court below was wrong to dismiss his case citing in support thereof the cases of Olatunbosun v. NISER (1988) 3 NWLR (pt. 80) 25, Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 at 618, Obot v. CBN (1993) 8 NWLR, Adewunmi v. Nigerian Eagle Flour Mills (2014) LPELR – 22557 (CA), NJC & Ors. v. Senlong & Ors (2010) LPELR – 4582 (CA).
The appellant further argued that having regard to the fact that it took the respondent four years and eleven months to undertake the disciplinary process, the “inordinate delay” amounted to denial of fair hearing citing in support thereof Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) read with the cases of Mfa v. Inongha (2014) LPELR – 22010 (SC), Ariori and Ors. v. Elemo & Ors. (1983) 1 SC 13 at 23, Benson v. C.O.P. & Anor. (2013) LPELR – 21212 (CA); upon which the appellant urged that the appeal should be allowed.
The respondent argued in its brief filed on 15.12.18, but deemed as properly filed on 10.12.18, that the appellant was given the opportunity to be heard and was indeed heard on the allegation before the respondent terminated his employment, therefore the respondent did not breach the appellant’s right to fair hearing citing in support thereof the cases of Bamisile v. N.J.C. (2013) All FWLR (pt.678) 11 at 134, Yusuf v. Union Bank of Nigeria Plc (1996) 6 NWLR (pt.457) 632, Jirgbagh v. Union Bank of Nigeria Plc (2001) 2 NWLR (pt.696) 11 at 28 – 29, Obasanjo v. Yusuf (2004) 9 NWLR (pt.877) 144, Azu v. UBN Plc (2004) 4 NWLR (pt.893) 402, Osuma v. E.B.S. (2004) 17 NWLR (pt.902) 332, Olatunbosun v. NISER (1988) 3 NWLR (pt.80) 25, Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (pt.404) 658 at 686, Arinze v. F.B.N. Plc (2004) 12 NWLR (pt.888) 663, R. v. Chancellor of Cambridge (1923) Str. 557 at 567 read with Section 36(1) of the 1999 Constitution.
The respondent placed reliance on the cases of Oshatoba v. Olujitan (2000) 5 NWLR (pt. 655) at 159, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (pt. 1006) at 608 to contend that the issue of receiving evidence and information by the respondent behind the back of the appellant was not canvassed at the Court below and was therefore improperly raised in the appeal and should not be countenanced on that score.
The respondent also argued that the appellant admitted the misconduct which should be taken as admission against interest and that the appellant should not be heard to complain that evidence and representations were received behind his back by the respondent to terminate his employment.
The respondent further argued that due to the circumstances of the case, as the Board to discipline the appellant, a senior officer, was not constituted, the delay of four years and eleven months for the disciplinary process to exhaust itself was excusable citing in support thereof the cases of Folade v. A.-G., Lagos State (1982) 1 NCR 270 at 279, upon which the respondent urged that the appeal be dismissed.
The appellant contended in the reply brief filed on 10.12.18 that the opportunity to be heard has to be taken along with the accompanying circumstances which must involve the whole hearing of the matter by allowing the person accused to challenge all his accusers citing in support thereof the cases of Eze v. F.R.N. (2017) LPELR – 42097, Ariori and Ors. v. Elemo and Ors. (supra), Orisakwe v. Governor of Imo State (1982) 3 NCLR 743 at 758; and that having raised the issue of the respondent acting on evidence and representation behind the back of the appellant which was raised in the pleadings and decided by the Court below, the said issue was properly raised vide the cases of Oforishe v. Nigerian Gas Co. Ltd. (2017) LPELR – 42766, Buraimoh v. Bamgbose (1989) LPELR – 818 (SC), R. Lauwers Import-Export v. Jozebson Industries Co. Ltd. (1988) LPELR-2934 (SC).
The appellant, contrary to the practice that reply brief should not be a re-argument of the appellant’s brief, dwelt on the issue of receiving evidence and representations by the respondent behind the back of the appellant thus breaching the appellant’s right to fair hearing citing in support the cases of Adewunmi v. Nigerian Eagle Flour Mills (2014) LPELR – 22, Ziideeh v. Rivers State Civil Service Commission (2007) LPELR – 3544 (SC); and that the four years and eleven months the disciplinary process ran was unreasonable, therefore the appeal should be allowed. The record of appeal (the record) is clear that the issue of receiving evidence and information by the respondent behind the back of the appellant was raised in the pleadings and the evidence and was therefore a live issue at the Court below, accordingly the appellant was entitled to ventilate it in the appeal.
The appellant admitted in cross-examination in page 1117 of the record that he carried out his own investigation of 5 suspects and found that 4 of the suspects were not arrested cultivating Indian hemp and that he referred the 5th suspect to the legal department of his command who gave an opinion that 5th suspect, Sunday Ossai, be given bail and that he approved the legal opinion, and further that he was queried in writing to which he responded in writing; and that a team of two officers from the headquarters interviewed him over the matter.
The Court below found as a fact that the appellant was queried in writing over the matter vide Exhibit C4 contained in page 680 of the record and the appellant responded to the query in Exhibit C5 vide page 681 – 682 of the record showing the appellant was not only given the opportunity to be heard but the appellant was actually heard both in writing and orally when two officers from the headquarters interviewed him over the allegation before the respondent terminated his appointment.
The respondent was not satisfied with the explanation of the appellant and decided to terminate his appointment. It was open to the respondent to reject or accept the explanation, as the explanation does not appear plausible.
The appellant was therefore, not only afforded the opportunity to be heard but was actually heard before the respondent dispensed with his services as rightly held by the Court below. See Hart v. Military Governor, Rivers State and Ors. (1976) N.S.C.C. 622 at 631 – 632 where the Supreme Court held inter-alia that –
With respect to the first complaint, we agree with the finding of the learned trial Chief Justice that the decision of the Public Service Commission was based on written allegations which the Commission referred to the appellant and on the appellant’s reply thereto.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In these circumstances, it was open to the Commission to accept or reject these explanations… In this connection, we would like to point out that it is now well settled that natural justice does not require that the hearing should be oral. See Local Government Board v. Arlidge (1915) A.C. 120 and Adedeji v. Police Service Commission (1968) N.M.L.R. 102). Therefore, it is our view that, in so far as proceedings are concerned, the appellant has had a fair hearing.”
The Court below held in part of its judgment quoted in page 13 of the respondent’s brief that –
“The evidence before the Court is that there was no Board constituted for the Defendant between 2007 and 2012. Consequently, the disciplinary as it is mandatory that the decision of the Chairman/Chief Executive be confirmed by the Board. I find that the defendant complied with all the procedural disciplinary regulations leading up to this point before it was misled into temporarily veering off course by the Claimant’s Solicitor’s letters (Exhibit D8 and D9) requesting for a review of his interdiction and a recall to duty”.
The appellant did not contest the potency and validity of the holding (supra). I agree and endorse the holding (supra).
It follows that administrative/legal impossibility caused the delay in the disciplinary process which was compounded by the appellant’s act through his solicitors in Exhibits D8 and D9, therefore I do not find my way clear to damnify the respondent for the said delay in the disciplinary process. As for administrative/legal impossibility see Maxwell on the Interpretation of Statutes (12th Edn.) page 326 relying on the cases of R. V. Leicestershire Justices (1850) 15 Q.B. 88 and Mayer v. Harding (1867) L.R. 2 Q. B. 410 thus –
Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex non cogit ad impossibilia. They are understood as dispensing with the performance of what is prescribed when performance of it is impossible.
Thus, where an Act provided that an appellant should send notice to the respondent of his having entered into a recognisance, in default of which the appeal should not be allowed, it was held that the death of the respondent was not fatal to the appeal, but dispensed with the service.”
In the same way, the provision of the Summary Jurisdiction Act 1857, S.2, which made the transmission by an appellant of a case stated by the justices to the superior Court named within three days a condition precedent to the hearing of the appeal, was held to be dispensed with when the Court was closed during those three days, compliance being impossible.”
(My emphasis)
With respect to the role played by the appellant in stalling the disciplinary process to run its full course, it is trite that it is but right for a party entitled to a private right to hold its application in abeyance.
The appellant did not contest the grounds upon which his appointment was terminated as contained in the letter to that effect vide pages 34 – 35 of the record. The said letter did not indicate that the respondent relied on evidence and information collected or received by the respondent behind the back of the appellant to terminate the appellant’s appointment. Accordingly, I find the contention of the appellant on the issue puerile and hereby refuse to countenance it.
On the whole, I find no substance in the appeal and hereby dismiss it and affirm the decision of the Court below (Obaseki-Osaghae, J.) as contained in pages 1127 — 1137 of the record. Parties to bear their costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree with the erudite leading judgment delivered by my learned brother: Ikyegh Joseph Shagbaor, JCA.
EBIOWEI TOBI, J.C.A.: I have been afforded in advance the privilege of reading in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA., and I am in total agreement with the resolution of my learned brother on this appeal. I have nothing extra to add.
Appearances:
Mr. T. Owoade For Appellant(s)
The Respondent was served hearing notice but was not represented. For Respondent(s)
