THE GOVERNING BOARD OF THE NIGERIAN NATIONAL MERIT AWARD & ANOR v. AYOOLA & ORS
(2022)LCN/16439(CA)
In The Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/A/46/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. THE GOVERNING BOARD OF THE NIGERIAN NATIONAL MERIT AWARD 2. PROFESSOR E. M. ESSIEN (Chairman, Governing Board of The Nigerian National Merit Award) APPELANT(S)
And
1. PROFESSOR GBOLAGADE AYOOLA 2. THE SECRETARY TO THE GOVERNMENT OF THE FEDERATION 3. THE ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION OF AN APPEAL MUST FLOW FROM THE GROUND OF APPEAL
The law is firmly settled that issues for determination of an appeal must flow and be tied to competent ground or grounds of appeal contained in the Notice and ground of appeal. Any question for determination that does not arise or flow directly from a ground of appeal is a violation of the principle. In other words, an issue that is alien or strange to the grounds of appeal will be moribund and liable to be struck out. See
1. BARRISTER ORKER JEV & ORS VS SEKAN IZUA IYORTYOM & ORS(2014) 8 SCM 131 AT 151 G-H where OKORO, JSC said:-
“The law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from or must arise or flow from a competent ground or grounds of appeal.”
2. REAR ADMIRAL FRANCIS ECHIE AGBITI VS THE NIGERIAN NAVY (2011) 4 NWLR (PART 1236) 175 AT 200G-H TO 201 A-B per ADEKEYE, JSC. PER IGE, J.C.A.
THE POSITION OF LAW WHERE AN APPELLANT COMPLAINS THAT A DECISION OF THE COURT IS PERVERSE
The law is settled that an Appellant who complains that the decision of the Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of the opportunity of seeing the witnesses testified before him. He must show that there was misapplication of oral and documentary evidence placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and re-evaluate the oral and documentary evidence.
1.DR. SOGA OGUNDALU VS. CHIEF A. E. O. MACJOB (2015) 3 SCNJ 113 AT 124 per RHODES-VIVOUR, JSC,
2. O. A. AKINGBADE & ANOR VS. AYOADE BABATUNDE (2018) NWLR (PART 1618) 366 AT 387 H-388 A-D per M. D. MUHAMMAD, JSC. PER IGE, J.C.A.
THE DUTY OF THE TRIAL COURT IN EVALUATING EVIDENCE AND ASCRIBING PROBATIVE VALUE TO IT
The Court like the lower Court can easily review or re-evaluate documentary evidence tendered before the lower Court. Since the credibility or demeanour of a witness will not be relevant in such circumstance. See;
1.MRS ELIZABETH IRABOR ZACCALA VS MR KINSLEY EDOSA (2018) 6 NWLR (PART 1616) 528 AT 545B-C per M. D. MUHAMMAD, JSC who said:-
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility crises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC); (2014) 2 NWLR (Pt. 1392) 483.”PER IGE, J.C.A.
WHETHER OR NOT ALL DOCUMENTS TENDERED BEFORE A COURT AT THE TRIAL ARE PART OF THE EVIDNECE TO BE CONSIDERED IN DETERMINING THE ISSUES BEFORE THE COURT
CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & 7 ORS (2014) 11 NWLR (PART 1419) 549 at 573 F-H per OKORO, JSC who said:
“It is trite that all documents tendered before a Court at the trial of a case are part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarewaju (1991) 22 NSCC (Pt. 1) 501; (1991) 4 NWLR (Pt. 184) 132. I think since exhibit C was tendered before the trial Court and was part of the record of appeal before the Court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.” PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court of Nigeria, delivered by HONOURABLE JUSTICE E. N. AGBAKOBA in Suit No. NICN/ABJ/215/2015 granting in part the reliefs sought against the Appellants by the 1st Respondent.
The 1st Respondent as the Claimant had approached the said Court claiming against the Appellants and 2nd and 3rd Respondents the following reliefs:-
“i. A DECLARATION that the purported suspension and termination of Claimant’s appointment as Secretary of the Nigerian National Merit Award before the expirations of his two-year tenure of office vide letters dated the 4th February 2016 and the 7th April 2016 respectively is a breach of the principles of natural justice, the terms and conditions of the appointment of the Claimant and is therefore irregular, wrongful, illegal, unconstitutional, null, void and of no effect whatsoever;
ii. AN ORDER setting aside the letters of suspension and termination of the Claimant’s appointment as Secretary of the Nigerian National Merit Award dated the 4th February 2016 and the 7th April 2016 respectively;
iii. AN ORDER directing the Defendants to pay the Claimant the sum of N43,645,582.75 being the outstanding salary arrears and allowances based on the approved scale applicable to the chief executive officer/executive secretary of a Grade A Parastatal of the Federal Government for his two year tenure of office.
iv. A DECLARATION that pasting the query of 16th February 2016 by the 1st and 2nd Defendants in a public place is wrongful, illegal and violated the extant public service rules.
v. AN ORDER directing the 1st and 2nd Defendants to issue a formal letter of apology to the Claimant for pasting the said query in a public place.
vi. Damages in the sum of N10,000,000.00 (Ten Million Naira only) for the embarrassment caused the Claimant as a result of pasting the said query in a public place.”
The Appellants filed their Defence to the action and also set up a Counter-Claim against the 1st Respondent (the Claimant) in the following terms:-
“Whereof the 1st defendant counter-claims against the claimant as follows:
a. A declaration that the various acts of the claimant in awarding contracts without complying with the due process of the law as prescribed by the Public Procurement act is a breach of his fiduciary duty, the terms and condition of his appointment and due process of the law.
b. A declaration that the claimant’s refusal to appear and/or represent himself before the committee duly constituted by his employers to investigate complaints levied against him amounts to misconduct.
c. A declaration that the various acts of the claimant flouting the directive of the 1st defendant, spending beyond approved budget without prior approval; awarding contracts without following the due process of law as laid out in the public Prosecution Act, reshuffling the NNMA secretariat without the prior consent of the 1st defendant, presenting the budget of the NNMA without authorization, flouting the directive of the 1st defendant inter alia amount to acts of insubordination.
d. A declaration that the act of the claimant withholding the various correspondences he had with the National Salaries, Incomes and Wages Commission from the 1st defendant in the determination of his salary scale amounts to suppression of record.
e. A declaration that the claimant’s salary scale is as placed by the salaries and wages commission, the body empowered by the Act of the National Assembly to fix salary scale of all workers in the public sector.
f. A declaration that the act of the claimant withholding the letter dated 30 September, 2015 from the 1st defendant and making the 1st defendant peg the claimant’s salary at par with the salary scale of the professor amounts to suppression of records and a fiduciary breach of trust.
g. An order directing the claimant to refund to the 1st defendant the sum of N1,291,415.45k being the difference in the sum he was erroneously paid under the scale of a professor and the scale of salary of a GL 17 as proposed by the National Salaries, Income and Wages Commission from the 5th day of May, 2014 to the 5th day of April, 2016 when his appointment was terminated.
OR
An order directing the claimant to refund to the 1st defendant the sum of N866,866.39k being the difference in the sum he was erroneously paid under the scale of a professor and the scale of salary of a GL 17 as proposed by the National Salaries, Income and Wages Commission had he completed his tenure as secretary to the 1st defendant 5th day of May, 2014 to the 4th day of May, 2016.
viii) An order directing the claimant to pay to the 1st defendant, the sum of N1,000,000 being the cost of prosecution of this suit instituted by the claimant.
ix) An order directing the claimant to return to the Nigerian National Merit Award, a set of the Laws of the Federation, 2010 which was assigned to the office of the secretary of the Nigerian National Merit Award but taken away by the claimant as same is a public property.
x) General damages in the sum of N20,000,000 (Twenty Million Naira).”
The matter proceeded to hearing and after the adoption of Written Addresses by learned Counsel to the parties the lower Court gave considered judgment on 30th October, 2019.
The learned trial Judge found in favour of the Appellants in the said judgment as follows:-
“87. The position of Labour Law is that while it is not in doubt that an employer has an unfettered right to suspend, but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard.
88. From the above, Section 4 of the NNMA Act 2004 LFN the Board is empowered to appoint a secretary, as well as other employees and by 4(b) with the prior approval of the Federal Civil Service Commission, to determine conditions of service of the employees as it may think appropriate.
89. But more particularly Section 4(a) of the NNMA Act 2004 LFN. Empowers the Board to exercise disciplinary control over such employees; which means the defendants are in law empowered to suspend the Claimant as the law clearly gives the Board the disciplinary control over the Secretary they appoint. That being the case that part of the Claimant’s relief seeking a declaration that the Claimant’s suspension is irregular, wrongful, illegal, unconstitutional, null, void and of no effect whatsoever and an order that the letter of suspension be set aside fails and cannot be granted, that part of Relief (i) and (ii) fail and is dismissed.
90. As to the issue of whether the claimant is not entitled, to the salary of a Category A parastatal the Claimant has not put before the Court any evidence of the salary he was paid or any circular listing him as a Chief executive, this issue is resolved against the Claimant as it is not substantiated to the satisfaction of this Court.
91. Issues (iv) and (v) related to the propriety and efficacy of the defendants Counter-claim. I shall treat these issues with the defendant counter-claim. Reliefs (iv) (v) mid (vi) relates to defamation, now the claimant has not put forward any particulars of defamation, neither has he presented any evidence of actual publication to enable the Court make a proper determination of same. In addition, the Claimant has not told the Court how he arrived at 100 million Naira damages, these reliefs not been substantiated thereby fail.”
On page 513 of the Record of Appeal (page 32 of the lower Court’s judgment) the learned trial Judge found against the Appellants as follows:-
“125. In the instant case, the claimant left office in January 2016 and was suspended for the issues for which the defendant seek to counter-claim in 2016. The counter-claimants instituted this suit (filed their counter-claim) on the 7th February 2017 a total of months after the cause of action ceased. On this point, I find that the Defendant/Counter-claimants counter-claim is statute barred and is consequently dismissed.
126. For avoidance of doubt, the claimant case succeeds but only this far:
i. It is hereby declared that the purported termination of Claimant’s appointment as Secretary of the Nigerian National Merit Award before the expirations of his two year tenure of office vide letter dated the 7th April 2016 is a breach of the principles of the terms and conditions of the appointment of the Claimant and is therefore irregular, wrongful, illegal, null, void and of no effect whatsoever;
ii. By order of this Court, the letter of termination of the Claimant’s appointment as Secretary of the Nigerian National Merit Award dated the 7th April 2016 is hereby set aside.
iii. The Defendants shall pay the Claimant all such salaries and allowances due to the claimant from the date last paid until the end of his contract 7th April 2016.
127. Cost of this suit is put at N300,000.00 payable within 30 days thereafter interest shall attach.
128. This is the Court’s judgment and it is hereby entered.”
The Appellants were aggrieved by the above quoted findings of the lower Court and have by their Notice and Grounds of Appeal dated 8th January, 2020 and filed on 9th January, 2020 appealed to this Court on three grounds which with their particulars are as follows:-
“2. PART OF THE JUDGMENT OF THE LOWER COURT COMPLAINED OF:
The whole judgment of the lower Court
3. GROUNDS OF APPEAL:
GROUND 1
The learned trial Judge did not accord appellants fair hearing as required under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended), before entering judgment against them as a result of which appellants suffered a miscarriage of justice.
PARTICULARS:
1. The learned trial Judge raised suo motu the issue of whether the Appellants’ counter-claim against the Respondent is not statute barred by virtue of Section 2(a) of the Public Officers Protection Act and requested parties to address the Court on the point.
2. The Appellants in its written address pursuant to the directive of the trial Judge raised the issue of 1st Respondent having acted outside the colour of his office is not protected by Section 2(a) of the Public Officers Protection Act in line with the decision of the Supreme Court in the cases of Offoboche v Ogoja Local Government & Anor (2001) 16 NWLR (Part 739) P. 458 and Kwara State Pilgrims Welfare Board v Baba (2018) 9 NWLR (Part 1623) P. 36.
3. The learned trial Judge did not consider this issue raised by the Appellants when he held at page 31 of the judgment that “from the foregoing I find that the claimant is entitled to the protection afforded by the Public Officers Protection Act”.
4. The Supreme Court in holding that a trial Court has the duty to make pronouncement on all issues raised by parties before it and failure to do so infringes on the fundamental right of a party to fair hearing before an impartial adjudicator held in the case of Onwe & Ors v. Oke & Ors. (2001) 3 NWLR Part 700 P. 407 as follows:-
“It is clearly the duty of an appellate Court to consider the issues set out for determination by the parties before the Court. It is an inescapable duty, and more so where as in this case all the issues required to determine the merit of the case for the appellants had been carefully set down in their brief. I have before now said that one of the issues which required the determination of the Court below related to res judicata. This was never considered in any shape or form by the Court below. It cannot, therefore, be right for the respondents to argue that the only complaint of the appellants in the Court below bordered “on evaluation of evidence by the trial Judge. It is therefore, in my view, manifest that the appellants cannot be said to have had a fair hearing before the Court below. In Onifade v Olayiwola (supra) at page 165 9 G – H) Agbaje JSC said thus:-
“It is implicit in Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 which provides for the right to fair hearing that a trial Court ought to hear and consider the evidence on all the issues joined before it. See Ukpai v. Okoro (1983) 2 SCNLR 380. In the same vein, an appellate Court ought to hear and consider the arguments on all the issues raised before it.”
Akapta JSC in the same case observed at page 177 E-F:-
“The complaints in these grounds which ex facie are far reaching, were placed before the Court of Appeal but were not considered and resolved. Just as it is the duty of a trial Court to make findings on evidence placed before it, so it is the duty of an appellate Court to resolve the complaints against the judgment of a trial Court placed before it.
GROUND 2
The conclusion, reached by the trial Court did not flow from the findings made and evidence adduced by the Appellants thereby occasioned a miscarriage of justice.
PARTICULARS:
The learned trial Judge held on page 23 of the judgment in favour of the Appellant as follows:
“But more particularly Section 4(a) of the NNMA Act 2004 LFN empowers the Board to exercise disciplinary control over such employees; which means the defendants are in law empowered to suspend the Claimant as the law clearly gives the Board to exercise disciplinary control over the Secretary they appoint. That being the case that part of the Claimants relief seeking a declaration that the Claimant’s suspension is irregular, wrongful, illegal, unconstitutional, null and void and of no effect whatsoever and an order that letter of suspension be set aside fails and cannot be granted, that part of Relief (i) and (ii) fail and dismissed.”
2. The 1st Respondent’s Relief (ii) which the learned trial Judge held has failed and consequently dismissed is as follows:
“AN ORDER setting aside the letters of suspension and termination of the Claimant’s, appointment as Secretary of the Nigerian National Merit Award dated the 4th February 2016 and 7th April 2016 respectively.”
3. The learned trial Judge subsequently in contradistinction to particular 2 above went ahead to hold at page 27 of the judgment as follows:
“From the foregoing, I find that exhibit C7 is evolved out of the context of the nature of the claimant appointment. Having found that his employment was tinged with statutory flavor it can only be terminated by effluxion of time as it is a fixed contract or for misconduct. Notwithstanding the Exhibit D, I find that the procedure culminating in Exhibit C7 is foreign to the claimant’s employment and is thus liable to be declared irregular, wrongful, illegal, null, void and of no effect whatsoever and that the letter of termination is required to be set aside. What that means is that in respect termination part of relief (i) and (ii) have merit and succeeds.”
4. The Supreme in holding that conclusions reached by a Court must flow from its findings held in the case of Oyeyemi & Ors v. Irewole Local Government, Ikire & Ors as follows:-
“Needless to state that every decision of a Court of justice should not only flow logically from the conclusions of facts and of law made by the Court but also be readily seen to be a logical result of such an exercise: Ojogbue v Nnubia (1972) 1 All NLR 226.”
5. There was evidence that the 1st Respondent was issued a query and was invited to make representations before the committee set up by the Appellants to investigate the allegations of misconduct and abuse of office against the Respondent vide (Exhibits D1 and D2(1)).
6. It was failure of the 1st Respondent to present himself before the committee set up by the Appellants that led to the issuance of Exhibit C7 (Termination Letter) to the Respondent in consonance with Rule 04306 (VI) of the Civil Service Rule.
7. The Supreme Court in the case of Joel Okunrinboye Export Company Ltd & Ors v. Skye Bank Plc (2009) 6 NWLR (Part 1138 P. 518 as follows:-
“The law is designed to give opportunity to parties to be heard. It is left to them to decide either to utilize the opportunity or not. When a party decides not to utilize the opportunity, he cannot turn round later to blame the Court or any other person for his failure. It must also be borne in mind that principles of fair hearing do not apply only to the defendant only but also to the plaintiff who has initiated action for judicial relief.”
GROUND 3
The Respondent did not establish his claim before the trial Court.
PARTICULARS
1. It is settled principle of law that the he who asserts must prove. The 1st Respondent did not adduce evidence to prove his claim yet the Court below went ahead to set aside the Respondent’s termination letter on the grounds that it was irregular, wrongful, illegal, null and void.
2. 1st Respondent’s claim at the lower Court was tied to the fact that he was appointed as Executive Secretary of the 1st Defendant by the Presidency through the 3rd Respondent hence his appointment can only be terminated by the Presidency and not the Appellant.
3. Exhibit C3 clearly shows that the appointment of the 1st Respondent was at the instance of the Appellant in line with Section 4(1) of the Nigerian National Merit Award Act.
4. Section 4(2) of the NNMA Act clearly confers disciplinary control (including dismissal) on the Appellants.
5. The decision of the trial Court was contrary to the position of the Supreme Court in the case of Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. (2009) 13 NWLR Part 1157 P. 83 where the Court held:-
“It is trite law that the onus is on the plaintiffs/appellants to prove that the termination of their appointments is unlawful and to discharge to this onus, they must proof that:
(a) They are employees of the respondents (b) Placing before the Court the terms of the contract the terms and conditions of their employment. (c) Who can appoint and who can remove them. (d) in what circumstances the appointments can be determined by the employer and breach of the terms. Okomu Oil Co. Ltd. v Iserhienrhien (2001) 6 NWLR (Pt. 710) Pg 660 at 673, Emokpae v University of Benin (2002) 17 NWLR (Pt. 795) P. 139, Amodu v. Amode (1990) 5 NWLR (Pt. 150) P. 356, Adeniran v NEPA (2002) 14 NWLR (Pt. 786) Pg. 30″ per ADEKEYE, JSC (pp. 45 – 46, paras. E- B)
Additional grounds of appeal may be filed upon the receipt of record of appeal.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
a. An order of this Honourable Court setting aside the judgment of 30th October, 2019 of the trial Court delivered in Suit No. NICN/ABJ/215/2016, and allow this appeal.
b. An order of this Honourable Court upholding the dismissal of the Respondent from the employment of Appellants.
c. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
The Appellant’s Brief of Argument was filed 14th February 2020 but deemed filed on 20th December, 2021 while the 1st Respondent’s Brief of Argument was filed on 8th July, 2020 and also deemed properly filed on 20th December, 2021.
The appeal was heard on 29th November, 2021 when the learned Senior Counsel to the Appellants adopted his Brief for the Appellants and learned Counsel to the 1st and 2nd Respondents adopted the 1st Respondent’s Brief of Argument.
The 2nd and 3rd Respondents did not file Brief of Argument.
The learned senior Counsel to the Appellants distilled two issues for determination namely:-
“1. Whether the learned trial Judge was right when he failed to consider the issue of whether the 1st Respondent acted outside the colour of his office and therefore not protected by Section 2(a) of the Public Officers Protection Act (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he held that the termination of the appointment of the 1st Respondent by the Appellant was foreign to the Claimant’s employment therefore liable to be declared irregular, wrongful, illegal, null, void and of no effect whatsoever. (Distilled from Grounds 2 and 3 of the Notice of Appeal.)”
On his part the learned Counsel to the 1st Respondent BABAJIDE BABA TUNDE, ESQ raised Notice of Preliminary Objection against the two issues formulated by the Appellant’s learned Counsel.
The objection reads:-
“3.1 TAKE NOTICE that at the hearing of this appeal, the 1st Respondent shall raise a preliminary objection to wit:
That Appellants’ issues formulated for determination are incompetent.
TAKE FURTHER NOTICE that the grounds upon which the preliminary objection is predicated are:-
i. Issue 1 raised and canvassed in the Appellants’ brief of argument filed on 14th February, 2020 did not relate to or arise from ground 1 of the Appellants’ Notice of Appeal filed on 9th January, 2020;
ii. Issue 2 raised and canvassed in the Appellant’s brief of argument filed on 14th February 2020 did not relate to, or arise from grounds 2 and 3 of the Appellant’s Notice of Appeal;
iii. Appellants’ issues for determination are not based, or related to any ground of appeal.”
I will attend to the Notice of Preliminary Objection first as it is capable of putting an end to the appeal herein if it succeeds.
The learned Counsel to the 1st Respondent’s Objection argued that a cursory look at ground one of the Notice of Appeal shows that the complaint is about the failure of the lower Court to accord the Appellants opportunity of being heard before judgment was given against them but issue 1 which was purportedly distilled from ground 1 is as to whether 1st Respondent acted outside the colour of his office. According to learned Counsel to the 1st Respondent, the issue whether the 1st Respondent acted outside the colour of his office cannot be cured by particulars contained in ground 1 and that issue 1 does not arise from ground 1. He relied on the case of AKINLAGUN V OSHOBOJA (2006) 5 SC (PART 11) 100 AT 108.
On issue 2 distilled from grounds 2 and 3 of the Notice of Appeal, it is the submission of learned Counsel to the 1st Respondent that issue 2 is an attack on trial Court’s decision holding that the termination of Respondent’s appointment was invalid, the two grounds of appeal upon which the said issue 2 rests has no relation to the issue 2 as raised. That ground 2 is about the conclusion of trial Court while ground 3 complained that 1st Respondent did not establish his claims.
He submitted that an issue formulated must be based on the grounds of appeal filed as any issues that has no bearing with any ground of appeal will be discountenanced. He relied on the cases of:-
1. IBATOR V BARAKURO (2007) 9 NWLR (PT. 1040) 475 and DALORI V SADIKWU (1998) 12 NWLR (PT. 576) 112.
He submitted that the two issues formulated did not arise from any grounds of appeal and they ought to be struck out and once struck out the appeal becomes otiose. He urged the Court to uphold the Notice of Preliminary Objection.
There was no Appellant’s Reply Brief to counter the above objection. Notwithstanding that this Court will still consider the merit of the objection.
The law is firmly settled that issues for determination of an appeal must flow and be tied to competent ground or grounds of appeal contained in the Notice and ground of appeal. Any question for determination that does not arise or flow directly from a ground of appeal is a violation of the principle. In other words, an issue that is alien or strange to the grounds of appeal will be moribund and liable to be struck out. See
1. BARRISTER ORKER JEV & ORS VS SEKAN IZUA IYORTYOM & ORS(2014) 8 SCM 131 AT 151 G-H where OKORO, JSC said:-
“The law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from or must arise or flow from a competent ground or grounds of appeal.”
2. REAR ADMIRAL FRANCIS ECHIE AGBITI VS THE NIGERIAN NAVY (2011) 4 NWLR (PART 1236) 175 AT 200G-H TO 201 A-B per ADEKEYE, JSC.
I am of the view that issue 1 is diametrically opposed to ground 1 of the Notice of Appeal which deals squarely with the alleged failure of the trial Court to accord Appellants’ fair hearing as required under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended. before entering judgment against the Appellants which Appellants alleged occasioned a miscarriage of justice.
Both the particulars to the said ground of appeal are highly incongruent. The said issue 1 nominated for determination did not even talk of fair hearing but failure on the part of the trial Court to consider whether 1st Respondent acted outside the colour of his office and therefore not protected under Section 2(a) of the Public Officers Protection Act. This type of issue 1 that does not relate to any of the grounds of appeal cannot be countenanced. See;
1. OTERI HOLDINGS LTD VS CHIEF MUKALLA KOLAWOLE, OLUWA & ORS (2021) LPELR 1 AT 10G–12D per AUGIE, JSC who said:-
“In effect, the determination of a preliminary objection to the hearing of an appeal, is not a hearing of the appeal, which can only be considered based on issues for determination, formulated from the grounds of appeal. See Carlen (Nig.) Ltd. v Unijos (supra), cited by the appellant, where Ogundare, JSC, stated as follows:
“It is trite that issues for determination formulated in a brief must arise out of and be related to the grounds of appeal relied upon in support of the appeal and any issue not encompassed by nor relating to the ground(s) must be struck out.
An issue for determination does not exist independently. It derives its legitimacy from a ground of appeal; and without the concrete support of the ground of appeal, the issue for determination collapses completely and must be struck out or ignored. See Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 and WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270, wherein Mohammed, JSC (as he then was) said:
“An appellate Court can only decide an appeal on issues raised on the grounds of appeal filed. In this respect, any argument in the brief of argument in support of such issues not arising from the grounds of appeal, will be discountenanced by the Court in the determination of the appeal as stated in Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 620 – 621.
In Momodu v. Momoh (supra), Uwais, JSC (as he then was), stated as follows:
“Issues for determination formulated in a brief must be based on the ground or grounds of appeal filed by the parties … If they are not related to any ground of appeal, then they become irrelevant and go to no issue. Any argument in the brief in support of such issues will be discountenanced by the Court. “
2. CPL INDUSTRIES LTD VS UNION HOMES SAVINGS & LOANS LTD (2021) 9 NWLR (PART 1781) 201 AT 221 D-E per EKO, JSC.
Consequently issue one is hereby struck out.
In any event, the clear finding of the lower Court was not appealed. The lower Court held on page 512-513 as follows:-
“124. Bearing the above in mind, find the arguments of the defendants; as to infractions, allegations of fraud and the fact that the claimant had left office have no bearing on the applicability of this statute. I find and hold. The 1st and 2nd defendants’ arguments as stated above are hereby discountenanced in their entirety.
I find that the Claimant is entitled to raise the Act.
125. In the instant case, the claimant left office in January 2016 and was suspended for the issues for which the defendant seek to counter-claim in 2016. The counter-claimants instituted this suit (filed their counter-claim on the 7th February 2017 a total of months after the cause of action ceased. On this point, I find that the Defendant/Counter-claimant’s counter claim is statute barred and is consequently dismissed.”
The above specific findings against the Appellants were not appealed. They are deemed to be satisfied with that aspect of lower Court’s decision. See;
1. APC V. HON D. I. KARFI & ORS (2018) 6 NWLR (PAT 1616) 479 AT 519 H per EKO. JSC who said:
“On 11th March 2015, the three appellants herein lodged their appeal to the Court of Appeal (the lower Court) challenging the decision of the Federal High Court. (NEC, in spite of the orders of the Federal High Court directing it not to recognize or otherwise deal with the candidate of the APC, 1st appellant, in the general election and/or placing the 3rd appellant or any other candidate of the APC on the ballot in consequence of the inconclusive primary election of 2nd December, 2014, did not appeal the decision of the Federal High Court. I need only re-state or emphasize the trite principle of law that decisions of Court not appealed against remain valid binding subsisting and taken as acceptable between the parties until the decision is set aside. See Akere v. Governor, Oyo State (2012) 50 11 NSCQR 345 at 414 415; (2012) 12 NWLR (Pt. 1314) 240; LSDPC v. Purification Tech. Ltd . (2012) 521 NSCQR 274 at 309.”
2.MRS AISHA ABDURAHAMAN & ANOR VS MRS SHADE THOMAS (2019) 12 NWLR (PART 1685) 107 AT 124K TO 125 A-C per EKO, JSC who said:-
“Neither in the notice of appeal nor in their brief did the appellants make any attempt, albeit feeble, to attack the foregoing decision, that crucially was fatal to their case. The law, as re-stated by Musdapher, CSC, in Jimoh Michael v. The State (2008) LPELR-1874 (SC) @ page 7; (2008) 13 NWLR (Pt. 1104) 361, is that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only, while the other points or decision not appealed remain unchallenged. Such point or decision unchallenged is taken as acceptable to the parties, particularly the appellant. In other words, a finding or decision of the Court below not challenged must not, rightly or wrongly; be disturbed by the appellate Court: Oshodi v. Eyifunmi (2000) LPELR-2805 (SC); (2000) 13 NWLR (Pt. 684) 298; Nwabueze v. Okoye (1988) 2 NWLR (Pt. 91) 664. And as I stated elsewhere: a party to the proceeding who does not appeal a particular adverse finding or decision, or who takes no steps to have it reviewed is deemed to accept the verdict against him: Ezerioha & Ors v. Ihezuo (2009) LPELR-4122 (CA). A finding of fact or point in a decision not appealed persists and remains binding on the parties to the suit.”
For avoidance of doubt issue 1 is hereby struck out.
On issue 2, I have carefully read the two grounds of appeal (Grounds 2 & 3) to which issue 2 relates and I am of the firm view that it is an issue validly raised and it flows directly from grounds 2 and 3 contained in the Notice of Appeal.
The Preliminary Objection succeeds ONLY in respect of issue 1 that has been struck out.
This appeal will be determined on the only surviving issue, that is issue 2.
ISSUE 2
This has to do with whether the lower Court rightly decided that the termination of appointment of 1st Respondent was irregular, wrongful, illegal, null and void and of no effect.
The learned senior Counsel to the Appellants referred to page 508 of the record containing the finding to submit that the said Exhibit C did not evolve out of context relying on letters dated 3/12/2015 from the Appellants to the Respondent drawing his attention to his wrongful acts and termination letter dated 4th February, 2016 which be the Query titled “QUERY ON SERIOUS MISCONDUCT AND SUSPENSION FROM DUTY AS SECRETARY OF NIGERIAN NATIONAL MERIT AWARD” wherein he said all the whole unlawful activities of 1st Respondent were listed. He also relied on letter dated 15/2/2016 asking the 1st Respondent to appear before the Committee set up by the Appellants and the 1st Respondent’s letter dated 18/2/2016 to the Appellants instead of putting up physical appearance before the Appellants Committee.
The learned senior Counsel submitted that the lower Court did not advert its mind to all the letters which were admitted in evidence. That the crux of 1st Respondent’s case is that he was not given fair hearing before his employment was terminated when infact it was 1st Respondent who refused to show up before the Committee to defend himself of the allegations made against him by the Appellants: He stated that the 1st Respondent employment was terminated after the Appellants had fully complied with the relevant Public Service Rules applicable to the 1st Respondent’s employment.
That in any case, the 1st Respondent vide Exhibit C20 responded to allegations of infraction made against the 1st Respondent. He cited and relied on the provisions of Rules 030302 of the Public Service Rules.
The learned Silk submitted that it was based on Rule 030302(c) that a committee was set up to investigate the 1st Respondent and that the Committee gave the 1st Respondent opportunity of being heard before the Committee set up by the Appellants recommended the termination of the 1st Respondent’s appointment. That 1st Respondent was given adequate opportunity to defend himself in that e-mails were sent to him to appear before the Committee vide Exhibits D2, D2(1), D2(2) and D2(2) and Exhibit D3 which are contained on pages 184-185 of the record.
Learned senior Counsel submitted that where a person has been afforded opportunity and he fails to avail himself of the opportunity such person cannot be heard to complain that he was denied fair hearing or that his right to be heard has been violated. He relied on the case of CHAMI V UBA PLC (2010) 6 NWLR (PART 1191) 474 and DARMA V ECOBANK (2017) LPELR-41663 (SC).
On the complaint of the 1st Respondent that invitation sent to him was sent less than 24 hours before the scheduled time for the Committee’s sitting which was empaneled to investigate the 1st Respondent and as such the time was not enough for him (1st Respondent) to defend himself, the learned Senior Counsel submitted that the 1st Respondent’s posture was damage control in that 1st Respondent did not reply to the e-mail to indicate the time the notice got to him vis-a-vis the time the 1st Respondent was billed to appear before the Panel. That the excuse of the 1st Respondent was just an afterthought or a subterfuge. He urged the Court to discountenance the defence.
It is the submission of the Appellants that from the narration reeled out by the Appellants, the trial Court erred when it came to a conclusion which did not flow from a proper evaluation of the evidence adduced before the lower Court. He therefore accused the lower Court of improper evaluation of the evidence adduced by the parties and that in such a situation this Court has a duty to intervene and carry out a proper evaluation of the evidence placed before the lower Court. He relied on the following cases;-
1. YUSUF V NTC LTD (1977) 6 SC (Reprint) P. 25;
2. WILSON & ANOR VS OSHIN & ORS (2000) 6 NWLR (PART 673) 442;
3. ARIJE V ARIJE & ORS (2018) LPELR-44193 (SC).
He submitted that this Court can set aside what he called “the erroneous inferences” drawn by the trial Court as outlined in paragraph 5.02 of his Brief of Argument which he said occasioned a miscarriage of justice against the Appellants.
He relied on the case of FRN V UMEH (2019) LPELR – 46801 (SC).
He concluded his submission by stating that based on the evidence before the trial Court the Appellants terminated the 1st Respondent’s employment in 2015 in accordance with the procedure laid down in the Civil Service Rules and his Conditions and Terms of his Employment. He urged the Court to resolve issues 2 in Appellants’ favour.
In response to the above submissions the learned Counsel to the 1st Respondent stated that the conclusion of the trial Court declaring the termination of employment of the 1st Respondent by the Appellants as irregular, wrongful, null and void is justified having regard to the evidence on the record of proceedings. He stated that the Appellants failed to comply with Public Service Rules and they violated the 1st Respondent’s right to fair hearing. To the learned Counsel to the 1st Respondent, the employment of 1st Respondent has statutory flavour and that Rules 030302-030306 of Public Service Rules deal extensively with the procedure to be followed in dealing with allegations of serious misconduct leveled against the 1st Respondent by the Appellants.
He submitted that most of the allegations contained in the query Exh. C5 are vague and that he was not allowed to respond to the query before he was suspended. That Exhibit C5 shows lack of compliance with Rule 030302.
He submitted that there was nothing placed before the trial Court to show that any Committee was in fact set up to investigate the 1st Respondent or did investigate him and recommend his termination. He stated that there was nothing to show that any investigation was carried out or that there was any recommendation to the 1st Appellant and 1st Appellant’s consideration of the Report. He submitted that failure of the Appellants to tender the Report of their Committee and minutes of meeting of the 1st Appellant where decision to terminate the 1st Respondent’s employment was taken compelled an inference that no Committee was set up and there was no Report rendered before Exhibit C7 was issued terminating 1st Respondent’s appointment on 7th April, 2016. That there was no credible evidence of invitation to appear before any Committee set up by the Appellants.
That the lower Court has right in not believing DW1’s evidence on the invitation to the Appellant and the address to which the invitation was sent. That the DW1 – claimed he sent an e-mail inviting the 1st Respondent to appear before the Committee to gbayoola@yahoo.com but that a close perusal of Exhibits D2 and D2(1) show that the names of persons the e-mail was sent to were Josephine Bosede Ayoola and one Jonandi and as such no invitation was proved to have been sent to the 1st Respondent.
That DW1 admitted under cross-examination that there was nothing to show that any invitation through SMS was sent by her. He relied on page 480 B of the record of appeal. That Exhibit D2(2) the letter of invitation was rightly discountenanced by lower Court because it was not signed by the supposed maker of it. He relied on the case of ADELEKE V ANIKE (2006) 16 NWLR (PART 1004) 131 and LAWRENCE V OLUGBEMI (2018) LPELR-45966 (CA).
That DW1 was not the maker of the document. That DW2 whose name appeared on Exhibit D2(2) did not testify on it. That Exhibit D2(2) is at best documentary hearsay. He relied on the cases of FLASH FIXED ODDS LTD V AKATUGBA (2001) 9 NWLR (PART 717) 46 AT 63 and AWUSE V ODILI (2005) 16 NWLR (PART 952) 416.
That the said Exhibits D2-D2(2) are not in conformity with the requirement of Public Service Rules 030305 and that DW1 said their issuance was less than 24 hours relying on page 480(c) of the record.
He also accused the Appellants of setting up a different case in paragraph 5.09 of their Appellants’ Brief of Argument to the effect that the Notice was pasted on Notice Board. He relied on the case of OZOMGBACHI V AMADI (2018) LPELR-45152 (SC) and OGUNSANYA V THE STATE (2011) LPELR-2349 (SC) 44. He also relied on Exhibit C20 which is Reply to Query Exhibit 6 and categorically stated that he did not receive any invitation to appear before a Committee. That Exhibit C20 was produced from Appellants’ custody.
He also find fault with the composition of the Committee set up to investigate 1st Respondent in that they were the accusers and Judges at the same time. He relied on the case of OLORUNTOBA OJU VS ABDULRAHEEM (2009) 5-6 SC (PART 11) 57 AT 112 – 113.
He urged the Court not to interfere with the lower Court’s finding in that the decision is not perverse relying on the cases of OGBECHIE V ONOCHIE (1988) 1 NWLR (PART 70) 370 AT 378 and ANYANWU V MBARA (1992) 5 NWLR (PART 242) 386 AT 390. He urged the Court to dismiss the Appellants’ appeal and affirm the decision of the lower Court.
The law is settled that an Appellant who complains that the decision of the Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of the opportunity of seeing the witnesses testified before him. He must show that there was misapplication of oral and documentary evidence placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and re-evaluate the oral and documentary evidence.
1.DR. SOGA OGUNDALU VS. CHIEF A. E. O. MACJOB (2015) 3 SCNJ 113 AT 124 per RHODES-VIVOUR, JSC,
2. O. A. AKINGBADE & ANOR VS. AYOADE BABATUNDE (2018) NWLR (PART 1618) 366 AT 387 H-388 A-D per M. D. MUHAMMAD, JSC.
The major complaint is that the lower Court did not properly evaluate the oral and documentary evidence placed before it thereby came to a wrong conclusion. The Court like the lower Court can easily review or re-evaluate documentary evidence tendered before the lower Court. Since the credibility or demeanour of a witness will not be relevant in such circumstance. See;
1.MRS ELIZABETH IRABOR ZACCALA VS MR KINSLEY EDOSA (2018) 6 NWLR (PART 1616) 528 AT 545B-C per M. D. MUHAMMAD, JSC who said:-
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility crises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC); (2014) 2 NWLR (Pt. 1392) 483.”
2. CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & 7 ORS (2014) 11 NWLR (PART 1419) 549 at 573 F-H per OKORO, JSC who said:
“It is trite that all documents tendered before a Court at the trial of a case are part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarewaju (1991) 22 NSCC (Pt. 1) 501; (1991) 4 NWLR (Pt. 184) 132. I think since exhibit C was tendered before the trial Court and was part of the record of appeal before the Court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”
It is crucial to examine the letter of appointment of the 1st Respondent, the queries given to him and his reply to the query. Not only that correspondences or documents that relates to the terms and conditions of the appointment or employment of the 1st Respondent containing the rights and obligations of the parties under the employment contract must be read and interpreted as a whole in order to discern if the termination of the 1st Respondent’s employment conforms with his conditions of service and by extension whether the conclusion reached by the learned trial Judge is supported by the evidence on the printed record. See;
1. UBN PLC VS ALHAJI AJABULE & ANOR (2011) 18 NWLR (PART 1278) 152 AT 185 per ADEKEYE, JSC who said:-
“In the law of contract, the law is that a written contract agreement entered into by parties is binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence to resolve the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties.”
2. CBN VS MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 419 A TO 420 A-C per AKINTAN, JSC who said:
“The law is settled that there are now roughly three categories of contracts of employment,- viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer: and those where the employment is regulated or governed by statute, often referred to as having statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NWLR 128; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bey v. The Federal Public Service (Pt. 265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116”
On page 433 A-E OGBUAGU, JSC also had this to say:-
“It must always be borne in mind and this is also settled Firstly that where a contract (which includes Contract of employment), involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. See the cases of The Attorney-General of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785 C.A. and Leyland (Nig.) Ltd. V. Dizengoff W. A. (1990) 2 NWLR (Pt. 134) 610 at 620.
Secondly, where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. This is exactly what happened in the circumstances of this case where condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and, transferring his service from one body to another body. See the cases of John Holt & Co. (Liverpool) Ltd. v. Stephen Late (1938) 15 NLR 14 and Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt. 249) 643 at 649. Again, a contract which must in law be in writing, can only be varied by an agreement writing. See the case of Morris v. Baron & Co. (1918) A.C. 1 at -39. Also settled, is that in the interpretation of a contract involving several documents, the documents must be read together. See the cases of Royal Exchange Assurance (Nig.) Ltd. & 4 Ors. v. Aswani Textile Industries Ltd. (1991) 2 NWLR (Pt. 176) 639 at 669 C.A.” (Underlined mine)
The Letter of Appointment Exhibit C3 reads as follows:
Ref: 8358/S. 28/1
Date: 23rd June, 2014
“THE PRESIDENCY
THE GOVERNING BOARD
NIGERIAN NATIONAL AWARD SECRETARIAT
Merit House:
Plot 22, J. T. Aguiyi Ironsi Street,
Maitama, Abuja.
Email: nnmaabuia@gmail.com
website: www.nnma.gov.rig
Prof. G. B. Ayoola,
President,
Farm and Rural Infrastructure Foundation,
No. 1, Gbolayade Ayoola Close, Sangan/Ayigbiri,
Ojoo,
Ibadan
Dear Prof. Ayoola,
OFFER OF APPOINTMENT AS SECRETARY TO THE NIGERIAN NATIONAL MEET AWARD (NNMA)
On behalf of the Governing Board of the Nigerian National Merit Award (NNMA), it is my pleasure to appoint you as the Secretary of the Nigerian National Merit Award, for the initial period of 2 (two) years, subject to renewal, as to be determined by the Board.
The Nigerian National Merit Award (NNMA) was established in 1979 by Decree No. 53, as amended by the Nigerian National Merit Award Act No. 96 of 1992 to award the Nigerian National Order of Merit (NNOM) Award to deserving citizens of Nigeria at home and in Diaspora for academic and intellectual attainments that contribute to national endeavours in Science, Medicine, Engineering/Technology, and the Humanities, including Arts and Culture and other fields of human endeavour. The NNOM is an order of dignity that entitles recipients to use the designation “Nigerian National Order of Merit (NNOM)” after their names; receiving a cash prize, a certificate and medal, as well as other privileges as are enjoyed by recipients of high Levels of National Honours.
The functions of the Board are to;
(i) conduct the Award on the NNOM in accordance with the Act;
(ii) institute measures designed to promote intellectual and academic excellence among Nigerians for this purpose and liaise with academic professional and research institutions in Nigeria;
(iii) manage the Nigerian National Merit Award Endowment Fund; and
(iv) do such other things which in the opinion of the Board are necessary to ensure the efficient performance of the functions of NNMA under the Act.
As Secretary to the Governing Board, you are the Head of the NNMÅ Secretariat, operating its structure and supervising the administrative and other functions of all staff as directed by the Board. You will serve as Chief Accounting Officer responsible to the Board on all matters and serve as the direct link to the Office of the Secretary to the Government of the Federation. You are to ensure that the NNMA Secretariat remains a lean and efficient platform for efficiently assisting the Board in identifying, recognizing and rewarding Nigerians who have distinguished themselves in academic excellence and outstanding intellectual achievements in the fields of Science, Technology, Medicine, Humanities, Arts and Culture and any other fields of human endeavour.
Your appointment is with effect from 5th May, 2014 and your condition of service will be in line with existing rules and provisions within the federal public service.
Kindly indicate your acceptance on this offer under the conditions stipulated by signing and returning a copy of this letter.
Yours sincerely,
Sgd 29/09/2014
Professor F. S. Idachaba, NNOM, D. Sc. (Honoris Causa), CFR Chairman, Governing Board of the Nigerian National Merit Award (NNMA)”
To all intent and purposes, the Federal Government Public Service Rules was made applicable to the 1st Respondent to also govern his terms and conditions of service.- It is therefore incumbent on the Appellants, in order to bring the contract of employment of the 1st Respondent to the end to fully comply with the provisions of the NNMA Act and the Public Service Rules.
By a query dated 4th February, 2016 the Appellants commenced disciplinary action against the 1st Respondent vide Exhibit C5 and suspended the 1st Respondent. The said Exhibit C5 reads as follows:-
“THE PRESIDENCY
THE GOVERNING BOARD
NIGERIAN NATIONAL MERIT AWARD SECRETARIAT
Ref: …
Date: 4th February, 2016
Merit House:
Plot 22, J. T. Aguiyi Ironsi Street,
Maitama, Abuja.
Email: nnmaabuja@gmail.com
website
Prof. G. B. Ayoola,
Secretary, Nigerian National Merit Award
22 Aguyi Ironsi Street,
Maitama, Abuja
QUERY ON SERIOUS MISCONDUCT AND SUSPENSION FROM DUTY AS SECRETARY OF NIGERIAN NATIONAL MERIT AWARD
The Governing Board of the NNMA at its Emergency Meeting held on Thursday 4th February, 2016 made the following observations concerning your activities especially of recent as the Secretary of the NNMA;
– Falsification of records;
– Suppression of record;
– False claim against the Board of NNMA on “Improprieties”
– Gross act of insubordination in directly corresponding with SCF and other Government officials without approval of the Chairman of the Board, or appropriately routing them:
– Sabotaging the mission and vision of NNMA whose integrity and reputation since 1979 have painstakingly built;
– Re-deployment of some senior staff in the Accounts, Administration and Audit Departments without approval from the Board;
– Submission of NNMA 2016 budget to the National Assembly without consideration and approval of the Board.
2. These are in negation of the Public Service Rules Chapter 3 Section 4, rule No.030401 1030402.
3. The Governing Board has therefore constituted a Committee to investigate the above allegations. The Committee will be inviting you soonest.
4. In view of the above, you are hereby suspended with immediate effect from acting or parading yourself as the Secretary of the NNMA. This is in line with PSR Chapter 3 Section 4, 030406. This is also in line with the Act of 1992 No. 96 (LFN 122 of 2004) Section 4 Subsection 2a of the NNMA Act as amended.
5. While on suspension you will be on half salary until the Governing Board takes its decision on the Report of the Committee.
6. You are to hand over all documents of the NNMA in your possession to Mr. Namadi Ibrahim of Administration Department.
Your suspension therefore takes effect from today Thursday 4th February, 2016. All the attendant consequences on Officers on suspension in the Public Service Rules hereby apply to you.
Sgd.
Prof. E. M. Essien, nnom,
Chairman, Governing Board of NNMA”
Exhibit C5 was followed by another query dated 16th February, 2016 against 1st Respondent. The said query is Exhibit C6 which also reads:-
“THE PRESIDENCY
THE GOVERNING BOARD
NIGERIAN NATIONAL MERIT AWARD SECRETARIAT
Professor E. M. Essien NNOM
Chairman, Governing Board, NNMA
Ref:.. 58358/5.63/V
Date: 16th February, 2016
Merit House:
Plot 22, J. T. Aguiyi Ironsi Street,
Maitama, Abuja.
Email: nnmaabuja@gamil.com
website: www.nnma.gov.rig
Telephone:
Telegram:
Dear Prof. Ayoola,
QUERY
I have received a report that you refused to appear before the Committee that the Governing Board of the NNMA, the duty Constituted Authority that employed you, set up to receive your explanation(s) of the various allegations that you made against its members and other.
These are contained in your letter dated 12th March 2015 and 13th November, 2015 etc. addressed to the Secretary to the Government of the Federation copies of which you made available to the Chairman NNMA Governing Board, Professor E. M. Essien on 22nd January, 2016.
Your- explanation(s) should be received within 48 hours of your receipt of this query which will be made available to you at the above address. Your response should be received at the NNMA Secretariat within 48 hours time limit.
Sgd.
Professor E. M. Essien nnom
Chairman, Governing Board, NNMA
16/02/16″
Cc: SCF
As can be seen from the two queries the 1st Respondent was accused of serious misconduct. Exhibit C5 accused him of having transgressed the provisions of the Public Service Rules Chapter 3 Section 4 Rules 030401 and 030402 and that a Committee would be constituted to investigate the allegations and that he would be invited.
The second query Exhibit C6 accused the 1st Respondent of failure to appear before the Committee set up to investigate him. He was given 48 hours to respond to the query.
By Exhibit C21 the 1st Respondent responded to the query dated 4th February 2016 on 18th February, 2016. The said Reply to the Query Exhibit C21 reads:-
“THE PRESIDENCY
THE GOVERNING BOARD
NIGERIAN NATIONAL MERIT AWARD SECRETARIAT
Ref: …
Date: 18th February, 2016
Merit House:
Plot 22, J. T. Aguiyi Ironsi Street,
Maitama, Abuja.
Email: nntnaabuja@gmail.com
Website : www.nnma.gov.ng
The Chairman,
Governing Board of NNMA,
Merit House,
22 Aguyi Ironsi Sreet,
Maitama, Abuja
RE: QUERY
I am presently in Makurdi, Benue State, participating in a policy dialogue today and also having a speaking engagement tomorrow at the Benue State Assembly. Someone has just sent to me through the social media a faint copy of your letter titled “Query”, which was found openly pasted on the front doors of the Operations Office of Farm & Infrastructure Foundation (FIF) located at Jabi, Abuja. I would like to point out that this place was not provided as my contact address at NNMA. When I was proceeding on my annual leave a few weeks ago, I clearly indicated my alternative Leave Address-, one abroad (The Netherlands) and the other in Ibadan (Nigeria). I would like to express ‘the serious exception that FIF’s Board of Trustees takes to pasting such letters on the front door of its office, which undermines my integrity as Founder or tarnish the image of the organization somewhat. Therefore, for the avoidance of any doubt in future, my regular contact. address in Nigeria is as follows: His Grace Residence, No.1, Gbolagade Ayoola Close, Sangan/Ayigbiri, Ojoo, Ibadan, to which the letter would have been deposited or posted.
2. At my present location, in order to comply with the deadline of 48 hours given, I am sending a scanned copy of this letter by e-mail to someone in Abuja, who will help deliver it at NNMA today while the original copy, together with the attachments, will be delivered in like manner latest on Monday. In return, the chairman will be kind to release the original copy of the pasted letter to me through the same person.
3. I did not receive an invitation to appear before the committee. I like to know where the letter was sent to and who collected it. The only letter I received from you before this time was the one dated 4th February 2016, (no reference, copy attached 1), entitled “QUERY ON SERIOUS MISCONDUCT AND SUSPENSION FROM DUTY AS SECRETARY OF NIGERIAN NATIONAL MERIT AWARD”. The letter contains a number of allegations against me in seven bullet points, based on which I was put on suspension, and a committee was set up to investigate the allegations in the same letter, which would be inviting me “soonest”. However, judging from the vague nature of the allegations and “the circumstances surrounding the letter, as well as the fear I nursed that justice might not be done to me by the committee, I have written a letter to the SGF to seek his protection and intervention in the matter (my letter, copy attached 2).
4. As indicated in the letter, the grounds for the fear I nursed emanates correspondingly from the vague nature of the allegations, as follows:
– Falsification of records – without Indicating what records and how the falsification had happened;
– Suppression of record – without indicating what record or how the suppression has happened;
– False claim against the Board of NNMA on “improprieties” – without indicating what claim and how the falsehood has happened;
– Gross act of insubordination in directly corresponding with SGF and other Government officials without approval of the Board or appropriately routing them when it is the duty of Secretary to do these things within the policy directions already provided by the Board;
– Sabotaging the mission and vision of NNMA without specifying my actions constituting sabotage, when and how such acts have happened;
– Re-deployment of some senior staff in the Accounts, Administration and Audit Departments- which is a continuous exercise under the Board’s policy and directives to have its own staff that is “lean and efficient devoid of corrupt practices to the constant knowledge of the Chairman;
– Submission of NNMA 2016 Budget to the National Assembly without consideration and approval of the Board which is not true, when the call for budget proposal was made in-between Board meetings and a draft was submitted to Chairman without his u input or those of members, until a weekend when the Accountant was summoned to the Banquet Hall in the Villa for immediate submission on a Saturday/Sunday, and this was reported to the Chairman immediately afterwards.
5. Contrary to paragraph one of your present letter of 16th February, 2016, the Governing Board did not set up the committee to receive my “explanations” of the various allegations” that I was purported to have “made against its members and others” inside my “letters dated 12th March 2015 and 13th November 2015 etc. ” (copies herewith attached, 3, 4). Rather, according to your letter of 4th February 2016, the Governing Board “has set up the committee to investigate the above investigations” and would “be inviting” me “soonest”. Therefore, I am to observe that the set of seven allegations levelled against me in your letter of 4th February 2016, explained-above, has been abandoned or withdrawn, so the suspension order premised on them does not subsist any longer. I am happy to observe this, as an admission of the fact that mistake has been made to level those allegations against me in the first instance.
6. In my two letters to SGF referenced, which I had previously notified the Chairman and subsequently made available to him, I did not make any allegation against the Governing Board and its members. What I did in both letters was that, having put the chairman and board members on notice several times, I acted in office as, the Secretary to seek necessary clarifications from higher authorities about certain irregularities going on at NNMA; which is my job to do given the ensuing role confusion and role conflicts at NNMA. In the first letter dated 12th March I sought clarification, if a part-time board could also be an executive board at the same time, as perceived by the Chairman and members of NNMA. In the second letter dated 13th November I sought clarification, if it was not proper for the Secretary of NNMA to be a member of governing board as is the case with the NNMA Governing Board but not other agencies of the Federal Government. In both instances I held and still hold the view that the NNMA Governing Board has manifestly misdirected itself on a protracted basis, and it is my duty to draw the attention of higher authorities to such a situation, as done by me when the need for official clarification arose in succession, The SGF has since made these clarifications to me, and he has also commenced action to correct the “improprieties” (copy of SGF’s letter herewith attached),
Humbly submitted, sir,
Sgd.
Prof. G. B. Ayoola
Secretary NNMA
CC: Secretary to the Government of the Federation.”
Notwithstanding the above scenario the Appellant accused the 1st Respondent of failing to appear before the Committee set up by the Appellants. However, it is worthy of note that the last paragraph of Exhibit C5 (1st query) says:-
“All the attendant consequences on Officers on suspension in the Public Service Rules hereby apply to you.”
Section 4 Rules 030401 and 030402 allegedly contravened by the 1st Respondent provide:-
“030401 – DEFINITION: Serious misconduct is a specific act of very serious wrong-doing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.
030402 – SERIOUS ACTS OF MISCONDUCT INCLUDE: Example (a) Falsification of records; (b) Suppression of records; (c) Withholding of files; (d) Conviction on a criminal charge (other than a minor traffic or sanitary offence or the like); (e) Absence from duty without leave; (f) False claims against Government Officials; (g) Engaging in partisan political activities; (h) Bankruptcy/serious financial embarrassment; (i) Unauthorized disclosure of official information; (j) Bribery; (k) Corruption; (l) Embezzlement; (m) Misappropriation; (n) Violation of Oath of Secrecy; (o) Action prejudicial to the security of the State; (p) Advance Fee Fraud (Criminal Code 419) 35 Federal Government Public Service Rules Chapter 2 020801 (q) Holding more than one full-time paid job; (r) Nepotism or any other form of preferential treatment; (s) Divided loyalty; (t) Sabotage; (u) Wilful damage to Public property. (v) Sexual Harassment; and (w) Any other act unbecoming of a Public Officer.”
The learned Senior Counsel to the Appellants had in paragraphs 5.07-5.09 of his Brief of Argument made the following statements and submissions viz:-
“5.07 The crux of the 1st Respondent’s case at the trial Court is that he was not given fair hearing before his employment was terminated by the Appellants. The 1st Respondent was indeed afforded fair hearing but chose not avail himself of the opportunity. It was specifically stated in Exhibit C3 the letter of appointment of the Respondent that his condition of service will be in line with existing rules and provisions within the federal public service rules. In complying with the provisions of the Public Service Rules the Appellants issued the Respondent several queries detailing the several infractions committed by him in the course of his employment to which the 1st Respondent responded vide a written representation (Exhibit C20) captioned “Re: Query”.
“5.08 Rule 030302 of Public Service Rules provides as follows:
“As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him/her it shall be his/her duty to inform the officer in writing giving details of unsatisfactory behavior and to call upon him to submit within a specific time such written representation as he/she may wish to make to exculpate himself/herself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether:
(a) The officer has exculpated himself/herself in which case he/she shall be so informed in writing and no further action shall be necessary; or
(b) The officer has not exculpated himself/herself but it is considered that he/she should be punished in which case the appropriate formal letter of advice shall be issued to him/her shall be required to acknowledge its receipt in writing; or
(c) The office has not exculpated himself/herself and deserves some punishment in which case Rule 030304 shall apply.
5.09 It was based on Rule 030302 (c) of the Public Service Rules that a committee was set up to investigate the 1st Respondent. The Committee before recommending that the Respondent’s employment be terminated sent an email to him and pasted on the Appellants’ Notice Board an invitation to appear before it to make representations which he failed to honour. The emails containing the invitation by the Committees set up the Appellants was admitted as Exhibits D2, D2(1) and D2(2) respectively (See page 186-187 of the record of appeal). The emails were also tendered with certificate of compliance which was admitted and marked Exhibit D3. (See page 184-185 of the record of appeal).”
Throughout the proceedings before the lower Court no Report of the Committee set up by the Appellants or their findings was produced or tendered before the lower Court, yet the Appellants submitted that the Committee recommended the 1st Respondent’s termination of appointment after he had failed to honour the invitation to appear before the board.
The law is settled that the Court is entitled to presume in particular that any evidence which could be and is not produced by the person pleading same or had custody of it, it would be taken that if it has been produced or tendered it would be unfavourable to the person who withholds it. See Section 167 of the Evidence Act 2011 which says:-
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that- (a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence. (c) the common course of business has been followed in particular cases; (d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; and (e) when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.” (Underlined mine)
This is a proper case to invoke Section 167 (d) of the Evidence Act against the Appellants.
The Appellants are also bound to comply with the provisions of Rule 030307 of the Public Service Rules which also provides:-
“030307 – Unless the method of dismissal is otherwise provided for in these Rules, an officer in the Federal Public Service may be dismissed by the Federal Civil Service Commission only in accordance with this Rule.
(i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstances of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such document(s) or report(s) used against him/her and he/she should be asked to state in his/her defence that he/she has been given access to documents. The officer shall be called upon to state in writing, within the period specified in the query any grounds upon which he/she relies to exculpate himself/herself;
(ii) The query, or preliminary letter, shall be in the format shown in Appendix II;
(iii) If the officer submits his/her representations and the Federal Civil Service Commission is not satisfied that he/she has exculpated himself/herself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission may take such action against the officer as it deems appropriate:
(iv) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
(v) Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;
(vi) The officer shall be informed that, on a specific day, the question of his/her dismissal shall be brought before the board and he/she shall be required to appear before it to defend himself/herself and shall be entitled to call witnesses. His/her failure to appear shall not invalidate the proceedings of the board;
(vii) Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnesses and no documentary evidence shall be used against the officer unless he/she has previously been supplied with a copy thereof or given access thereto;
(viii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;
(ix) The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses;
(x) If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her if he/she was interdicted or suspended;
(xii) If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him/her to retire, the Commission shall, without further proceedings, direct accordingly; and (xiii) All disciplinary procedures must commence and be completed within a period of 60 days except where it involves criminal cases.”
Even if the 1st Respondent failed to turn up as argued by the Appellants that will not be an excuse or a shield not to follow the provisions of Rule 030307 (v), (vi), (vii), (viii), (ix) and (x) reproduced above.
In other words, the Appellants have not shown that they followed due process in terminating the 1st Respondent’s appointment. It is incumbent on the Appellant to furnish the 1st Respondent with the Report of their investigation. This they failed to do in this case.
When a law or regulation provides for a particular method of doing a thing or procedure for carrying out a duty, it must be strictly followed and complied with otherwise any contrary steps taken shall be null and void. See MOBIL PRODUCING NIGERIA UNLIMITED VS. OKON JOHNSON & ORS (2018) 14 NWLR (PART 1639) 329 at 359 A-D per OKORO, JSC who later said:
“As was rightly submitted by the learned counsel for the 1st-15th respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express provision of the statute. It is trite law that when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever. See Ude v. Nwara & Anal (1993) 2 NWLR (Pt. 278) 638, (1993) LPELR-3289 (SC); M.P.P.P. v. I.N.E.C. & Ors (2015) LPELR-25706 (SC), (2015) 18 NWLR (Pt. 1491) 251; Federal Republic of Nigeria v. Wabara & Ors (2013) LPELR-20083 (SC), (2013 5 NWLR (Pt. 1347) 331; Nnonye v., Anyichie (2005) 2 FWLR (Pt. 268) 121, (2005) 2 NWLR (Pt. 910) 623; Ntiero v. NPA (2008) 10 NWLR (pt 1094) 129.
As rightly pointed out by the Court below, there is nothing on record to show that the appellant ever applied to the Inspector General of Police in accordance with Section 18(1) of the Police Act of its desire to have the services of Supernumerary Police Officers. Neither is there evidence of any approval by the President to that effect. There is yet no evidence of any directive by the Inspector General to the appropriate authority to appoint these officers. Moreso, the appellant failed to show evidence of the payment of cost of uniform to the Accountant General including the quarterly payment of the salaries of the 1st-15th Respondents.”
There is no clear evidence that the Notice of Invitation sent to the 1st Respondent was actually delivered to his e-mail address or personally on him before his appointment was terminated by the Appellants.
DW1 and 2 confirmed that the invitation sent was not directed to 1st Respondent’s e-mail.
The 1st Respondent was not given the opportunity of fair hearing and the procedure laid down by the Public Service Rules were not complied with.
The lower Court was therefore right in its conclusion that the procedure adopted by the Appellant in terminating the employment of the 1st Respondent vide Exhibit C7 was irregular, wrongful, null and void and of no effect. The termination of employment of the 1st Respondent by the Appellants was properly set aside by the lower Court.
Issue 2 is resolved against the Appellants.
Consequently, the judgment of National Industrial Court of Nigeria delivered on 30th October, 2019 by HONOURABLE JUSTICE E. N. AGBAKOBA is HEREBY AFFIRMED.
The Appellants shall pay costs assessed at N50,000 (Fifty Thousand Naira) only to the 1st Respondent.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading the draft copy of the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.
I am in agreement with the reasoning and the conclusion reached in the lead judgment. I also for those reasons, do hold that the appeal is lacking in merit and it is hereby dismissed.
I abide by the consequential orders inclusive of the order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I read in advance, the lead judgment of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is dismissed by me.
The judgment of the National Industrial Court of Nigeria in Suit No. NICN/ABJ/215/2015 delivered on 30th October, 2019 by E.N AGBAKOBA, J is hereby assessed in favour of the 1st Respondent and against the Appellants.
Appearances:
A. M. ADOYI For Appellant(s)
BABAJIDE BABATUNDE, ESQ. – for 1st Respondent For Respondent(s)
