UNIVERSITY OF CALABAR v. FRAMPTON GODWIN AKPANIKA
(2010)LCN/4017(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of October, 2010
CA/C/86/2008
RATIO
LIABILITY OF A SECURITY PERSONNEL: WHETHER A SECURITY PERSONNEL CAN BE HELD RESPONSIBLE WITHOUT RESORT TO DUE LEGAL PROCESS WHERE ITEMS PLACED UNDER HIS EXCLUSIVE CHARGE DISAPPEAR WITHOUT ANY REASONABLE EXPLANATION FROM HIM AS TO THEIR DISAPPEARANCE
If items placed under his exclusive charge disappear without any reasonable explanation from him as to their disappearance, he can be held responsible without resort to due legal process. This informed the decision of the supreme court in BABA v N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388. PER KUMAI BAYANG AKAAHS, J.C.A.
FAIR HEARING: WHETHER WHERE ANY PERSON IS ACCUSED OF COMMITTING A CRIMINAL OFFENCE, HE MUST BE TAKEN BEFORE A COURT OF LAW OR JUDICIAL TRIBUNAL TO DETERMINE THE CRIMINAL CHARGE AGAINST HIM
Giving a person fair hearing is not limited only to strict adherence to procedure. There must be a logical conclusion to the hearing. As observed by Obaseki, JSC in GARBA v UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt. 18) 559 at 576: “Without subjecting any criminal allegation against any student to the machinery provided by the state for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the student howbeit laudable or sympathetic the intention of the authorities might be.” It would have been a different scenario if the Respondent did not give an explanation as to how the items allegedly stolen were found on him. His dismissal which was based on the assumed facts that he stole the items was clearly wrong and so must be nullified. The facts in the ARINZE’s case supra are clearly distinguishable from this case. I will equate the facts in this case under appeal to those in IGWILO v. CENTRAL BANK OF NIG. (2000) FWLR (pt.18) 265. The pronouncement of Mohammed J.C.A. (as he then was) in OKOCHA v CIVIL SERVICE COMMISSION EDO STATE (2004) FWLR (Pt. 190) 1304 is very apt when he said: “In our present case, the Appellant was accused of committing a criminal offence. He was issued with a query. He answered the query. He was ultimately dismissed. By virtue of S.33( 4) of the 1979 Constitution, since he was accused of committing a crime, he must be taken before a court of law or judicial tribunal to determine the criminal charge against him. He cannot be dealt with by a disciplinary tribunal.” PER KUMAI BAYANG AKAAHS, J.C.A.
WHETHER REINSTATEMENT IS THE CORRECT REMEDY FOR AN INEFFECTIVE AND INVALID EXERCISE OF A POWER TO DISMISS AN EMPLOYEE FROM HIS APPOINTMENT
I share the view expressed by Karibi-Whyte, JSC in OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599 at 680 that: “Logically and judicially there seems to be no basis for doubting the validity of the proposition that reinstatement is the correct remedy for an ineffective and invalid exercise of a power to dismiss. This is because the appointment having not been validly terminated the position remained unaltered by the ineffective purported exercise of the right to dismiss.” PER KUMAI BAYANG AKAAHS, J.C.A.
WHEN CAN A CONTRACT OF EMPLOYMENT BE SAID TO BE ONE WITH STATUTORY FLAVOUR
In OLORUNTOBA-OJU v. ABDULRAHEEM (2009) 13 NWLR (pt.1157) 83, the supreme Court held that if the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made thereunder, then the contract is protected by statute or in other words, the employments is one with statutory flavour. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
M. A. OREDOLA Justice of The Court of Appeal of Nigeria
I. O. AKEJU Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF CALABAR – Appellant(s)
AND
FRAMPTON GODWIN AKPANIKA – Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment) On the 17th day of October, 2002, the plaintiff/Respondent took out a writ of summons at the Federal High court, Calabar claiming against the Defendant/Appellant the following reliefs:-
“1. A declaration that the purported dismissal of the plaintiff from the service of the Defendant contained in a letter Reference Number UC/EST/JO1:00702 dated 12th August, 2002 is in breach of his constitutional right, wrongful, unlawful, irregular, null and void and of no effect whatsoever.
2. An Order of the Court setting aside the said letter.
3. A declaration that the plaintiff is still in the employment of the defendant and entitled to all his dues in form of salaries, allowances and emoluments from the purported date of dismissal (12th August, 2002) until he attains the age of retirement as prescribed by law or until he is otherwise retired as lawfully provided.”
The Writ of Summons was accompanied with a Statement of Claim. The defendant who earlier filed a Statement of Defence later withdrew same and to defend the action by relying on facts as averred by the Plaintiff in his Statement of Claim. The plaintiff testified in person and tendered Exhs. ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’. He denied the allegation of stealing which was labeled against him. The learned trial Judge considered the evidence adduced by the plaintiff and entered judgment in his favour on 14/11/2007 and declared as follows:
“1. That the purported dismissal of the plaintiff from the services of the defendant contained in a letter with reference number UC/EST/JO1:
00772 dated 12th August, 2002 is null, void and of no effect.
2. That the Plaintiff is still in the employment of the defendant and is entitled to his salaries, allowances and all other entitlements incidental to his employment with the defendant from the date of his purported dismissal.”
The Court ordered for the reinstatement of the Plaintiff to his employment and payment of his salaries, allowances and other entitlements due to him from the date of his purported dismissal. Dissatisfied with this judgment, the defendant filed a Notice of Appeal dated 13th February, 2008 containing three grounds of appeal from which the following two issues were distilled:-
1. Whether the learned trial Judge was right in nullifying the dismissal of the Plaintiff from the employment of the Defendant (Distilled from Grounds 1 and 2)
2. whether the learned trial Judge was right to have ordered reinstatement of the plaintiff (Distilled from Grounds 3).
The respondent also formulated two issues for determination as follows:
1. Whether the disciplinary powers contained in the condition of service of the Appellant Exh. ‘F’, can lawfully be exercised to try and penalize a staff accused of stealing a third parties (sic) property.
2. whether the learned trial Judge was right in ordering the reinstatement of the Respondent.
Learned Counsel for the Appellant argued that the Respondent was dismissed for gross misconduct or behaviour unbecoming of a security personnel. That being the case, the only duty placed on the Appellant was to afford the Respondent adequate opportunity to explain or defend himself and this was done through the query (Exh. ‘B’) issued to him and his reply which was tendered as Exh. ‘D’. He was equally given the opportunity to defend himself before the Disciplinary Panel and it was after this that he was dismissed from service. He submitted that the dismissal cannot be faulted since it was done in accordance with the University’s Regulations and the dictates of fair hearing as enshrined in Section 36 of the 1999 Constitution. He said that the Supreme Court held in ARINZE v. FIRST BANK OF NIG. LTD. (2004) 1 NWLR (pt.888) 663 at 665 that –
“In statutory employment as well as in private, where the accusation against such employee is of gross misconduct, involving dishonesty bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself ……..”
It was submitted on behalf of the Respondent that from the query issued it is obvious that the alleged complaint bordered on stealing items enumerated in paragraph 1 of Exh. ‘E’ valued at N900.00. These items were not the properties of the Appellant but were said to belong to a third party operating a stall within the University. Despite his denial the Appellant went ahead to dismiss him for stealing the said items. Learned counsel argued that the allegation of stealing is a grave criminal offence especially if it is against a security personnel as the Respondent. ‘He contended that once it is denied by the suspect, the duty rests with the police to properly investigate same and prosecute where necessary since the property allegedly stolen was not that of the appellant but a third party. This he said would have eliminated the element of planned bias against the Respondent. The allegation should not have been dealt with by a disciplinary committee. He relied on the following cases to submit that where a person is accused of committing a criminal offence, he must be taken before a court of law or judicial tribunal to determine the criminal charge against him and should not be dealt with by a disciplinary tribunal: OKIKE v. L.P.D.C. (2005) All FWLR (Pt. 274); SOFEKUN v. NWAUWA (1997) 2 SCNJ 60; OKOCHA v CIVIL SERVICE COMMISSION EDO STATE (2004) FWLR (Pt. 190) 1304. He sought to draw a distinction between this case and that of ARINZE v FIRST BANK OF NIG. LTD. supra which was relied on by learned counsel for the Appellant by maintaining that the particulars or property over which Mr. Arinze’s dismissal was based was that of his employer and not that of a third party.
I do not accept the postulation by learned counsel for the respondent that if a person is accused of stealing and the property allegedly stolen belongs to the employer, he can be proceeded against by a disciplinary tribunal. I fail to fathom the difference between the employer’s property and that of a third party. As a security personnel, he should be able to safeguard both his employer’s property and that of a third party who is licenced to stay on the employer’s premises. After all no employer will be willing to employ a security personnel who has had a dubious record from a former employment. If items placed under his exclusive charge disappear without any reasonable explanation from him as to their disappearance, he can be held responsible without resort to due legal process. This informed the decision of the supreme court in BABA v N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388.
Learned counsel for the appellant relying on Section 36 of the 1999 Constitution and ARINZE v FIRST BANK OF NIG. LTD. supra submitted that his dismissal cannot be faulted since the procedure set out in the University’s Regulations for disciplining an officer was followed and the Respondent was accorded fair hearing before the final disciplinary action was taken against him.
Only the respondent testified on his pleadings. The Appellant rested its case on the evidence given by the respondent as plaintiff.
In his evidence he denied stealing the items enumerated in the letter of suspension tendered as Exh. “C”. He offered an explanation how the things were found on his person. The hawker who was said to be the owner of the things was not called to testify. Despite this, in the letter of dismissal tendered as Exh. “E” the Respondent was found guilty of stealing the items and this led to his dismissal from his employment. Giving reasons for the dismissal, it was stated in paragraph 2 of Exh. ‘E’ as follows:
“2. You actually stole the items tendered before the Tribunal as exhibits and that consequently you be dismissed from the service of the University of Calabar for behaviour unbecoming of a security personnel and you are hereby dismissed.”
The Tribunal found him guilty of stealing and so he was dismissed.
Giving a person fair hearing is not limited only to strict adherence to procedure. There must be a logical conclusion to the hearing. As observed by Obaseki, JSC in GARBA v UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt. 18) 559 at 576:
“Without subjecting any criminal allegation against any student to the machinery provided by the state for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the student howbeit laudable or sympathetic the intention of the authorities might be.”
It would have been a different scenario if the Respondent did not give an explanation as to how the items allegedly stolen were found on him. His dismissal which was based on the assumed facts that he stole the items was clearly wrong and so must be nullified. The facts in the ARINZE’s case supra are clearly distinguishable from this case. I will equate the facts in this case under appeal to those in IGWILO v. CENTRAL BANK OF NIG. (2000) FWLR (pt.18) 265. The pronouncement of Mohammed J.C.A. (as he then was) in OKOCHA v CIVIL SERVICE COMMISSION EDO STATE (2004) FWLR (Pt. 190) 1304 is very apt when he said:
“In our present case, the Appellant was accused of committing a criminal offence. He was issued with a query. He answered the query. He was ultimately dismissed. By virtue of S.33( 4) of the 1979 Constitution, since he was accused of committing a crime, he must be taken before a court of law or judicial tribunal to determine the criminal charge against him. He cannot be dealt with by a disciplinary tribunal.”
The second issue agitated by the Appellant is the order of reinstatement of the Respondent to his job. It was argued that the relationship between the appellant and respondent was a master and servant relationship and so a dismissal of the employee by the employer cannot be declared null and void and that it is settled that the court cannot impose a servant on an unwilling master.
The respondent’s employment was not strictly speaking a master and servant relationship. The employment was governed by the letter of employment Exh. “A” and the conditions of service for Junior Staff which was received in evidence as Exh. “F”. He testified and tendered the Offer of Appointment dated 8th June, 1993 wherein it was stated that “the appointment may be terminated by a month’s notice on either side or a month’s salary in lieu of notice.” It was also stated in Exh. “A” that “Other conditions of service are as at present contained in the Conditions of Service approved for staff on USS 5 and below.” His appointment was confirmed with effect from 17th June, 1995. As at 12th August, 2002 when he was dismissed from service he had put in 9 years in service. But for the aborted disciplinary action taken against him he was entitled to continue in his employment until he attained the age of 60 as stipulated in Regulation 20(b) of the conditions of service. I share the view expressed by Karibi-Whyte, JSC in OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599 at 680 that:
“Logically and judicially there seems to be no basis for doubting the validity of the proposition that reinstatement is the correct remedy for an ineffective and invalid exercise of a power to dismiss. This is because the appointment having not been validly terminated the position remained unaltered by the ineffective purported exercise of the right to dismiss.”
The learned trial Judge reasoned and I agree with him that since council is empowered by section 15(6) of the University of calabar Act to make regulations for the discipline of staff and workers of the university, the respondent’s employment had statutory flavour which transcended the ordinary master and servant relationship. This may appear to be contrary to the decision in Opuo v N.N.P.C. (2001) 14 NWLR (Pt.734)52 but a distinction can be drawn here. Whereas in the present appeal, the offer of appointment was not the only document that dealt with the Respondent appointment as reference was made to the conditions of service, in the Opuo’s case supra the only document tendered was the offer of Appointment letter, the validity of which was not subject to any Act. In OLORUNTOBA-OJU v. ABDULRAHEEM (2009) 13 NWLR (pt.1157) 83, the supreme Court held that if the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made thereunder, then the contract is protected by statute or in other words, the employments is one with statutory flavour. Accordingly, I find no merit in the appeal as the order for reinstatement was the proper order to be made after nullifying the dismissal. The judgment of, the lower court is hereby affirmed. The appeal is accordingly dismissed with N30,000.00 costs in favour of the Respondent against the Appellant.
MASSOUD ABDURAHEEM OREDOLA, J.C.A: I have had the privilege of reading in advance the reading judgment of my learned brother, Akaahs, JCA, just delivered. I entirely agree with his reasoning and conclusion reached therein that the appeal lacks substance.
I also affirm the decision of the Lower court and accordingly dismiss the appeal. I further abide by the order for costs made in the said judgment.
OLUFEMI AKEJU, J.C.A: I had the privilege of reading in draft the judgment just delivered by my learned brother Akaahs (JCA). I agree entirely with his reasoning and conclusion and I adopt the lead judgment. I also agree with the order for N30,000.00 cost.
Appearances
OKON N. EFUTFor Appellant
AND
IMO INYANGFor Respondent
