Tamti, D.U. V. Nigeria Customs Service Board & Anor (2008)
LawGlobal-Hub Lead Judgment Report
HON. JUSTICE UWANI MUSA ABBA AJI. J.C.A.
This appeal is against the Judgment of the Federal High Court Abuja, presided Over by Hon. Justice S.J. Adah in Suit No. FHC/ABJ/CS/697/2004 delivered on the 24th May, 2006.
The Appellant as the plaintiff instituted the action against the Respondents as Defendants, claiming the following reliefs as per paragraph 27 of the statement of claim:-
- A declaration that the 2nd Defendant lacked competence to set up investigation panel and disciplinary committee to investigate and discipline the plaintiff for the allegation of illegal authorization of the release of and permitting the removal of 270 packages of cargo seized from Swift Freight International flight No. BRQ 1302F from NACHO shed at Murtala Mohammad Airport Command Lagos.
- A declaration that the letter of suspension dated the 13th day of July,2004 and signed by Nwokocha, E.O. (Mrs.) for The Comptroller-General, Nigeria Customs Service is null, void and of no effect whatsoever.
- A declaration that the Retirement of the plaintiff from service, on the ground of gross misconduct is unconstitutional, null and void and of no effect as the plaintiff was not afforded fair hearing as provided by the Constitution.
- An order directing the Defendants to re-instate of (sic) the plaintiff to his rank and post.
The facts of the case as can be gleaned from the pleadings of the parties and the evidence adduced before the trial court was that, the Appellant until his retirement, on the 19th/11/2004 by the Nigeria Custom Service Board was a Superintendent of Customs on grade level (HPPSS11). He joined the service of the Nigeria Customs on the 3rd April, 1989 as an Assistant Superintendent of Customs on Salary Grade, level 08 Step. II and was severally promoted the last being the rank of Superintendent of Customs.
On or about the 27th day of May 2004, 395 packages of cargo on Swift Freight International flight No.3RQ, landed at Murtala Mohammad Airport. The Nigeria Customs Airport Command Ikeja detained the packages for contravening the Federal Government Importation prohibition Order and Fiscal Policy measures for the year 2004.
After the detention, a stop delivery order was given and subsequently the detention and seizure orders were given on the 28th May, 2004, to the Nigeria Aviation Handling Company (NAHCO). When some days later, an attempt to move the seized goods to the Government Warehouse by the Nigeria Customs, it was discovered that the packages were 125 and not 395. The missing of the 270 packages prompted the Nigeria Customs to investigate the circumstances leading to the disappearance of the packages from NAHCO shed.
The Appellant who was then working at the courier section of the Murtala Mohammed Airport, Ikeja was posted to NAHCO Exit gate and he reported at the gate on the 1st June, 2004, The Nigeria Customs in the course of the investigation issued the Appellant with a query letter dated the 13th July, 2004 giving him 48 hours to respond. He was also on the same date served with a suspension letter with effect from 13th July, 2004 directing him to handover all Government property in his possession including uniform and ID card. Investigation was conducted and the Appellant was summoned to appear before the Management Meeting of the Nigeria Customs Service in Abuja along with the officers that investigated the matter in Lagos. A decision was reached to retire the Appellant from service and consequently the Appellant was retired from service by a letter dated 6th September, 2004, even though the letter was served on him on the 19th day of November, 2004. The Appellant is challenging his premature retirement from service as illegal, imputing lack of fair hearing among other grounds.
The Appellant testified at the hearing and tendered seven exhibits. He did not call any other witness. The Respondents also called a lone witness who testified for them and tendered one Exhibit. Both parties close their case and learned counsel addressed the court. In a considered judgment delivered on the 24th day of May, 2006, the learned trial judge granted one relief of the Appellant and dismissing all other reliefs.
The Appellant being dissatisfied with the judgment, on the 20th June, 2006 filed a notice of appeal with 8 grounds of appeal to this Honourable Court. The grounds of appeal without their particulars are hereby reproduced.
GROUNDS OF APPEAL
Ground 1: The learned trial judge erred in law when in his judgment he held as follows:- “The fact that those sent to investigate were present at meeting of the management as reflected in exhibit 8 does not vitiate any step taken in that meeting.”
Ground 2: The learned trial judge erred in law in not granting the plaintiff’s relief of reinstatement back to his rank and position given the Defendants admission and non-denial of material averments in the plaintiffs Statement of Claim.
Ground 3: The learned trial judge misdirected himself and erred in law when he held that:- “…since the Board was the one that took the decision and retired the plaintiff, that decision is proper because the Board has the capacity to take decision” when there was no evidence to support such finding.
Ground 4: The learned trial judge erred in law when he failed to consider and determine the issue of involvement of the plaintiff in the illegal release of 270 packages raised before it one way or the other.
Ground 5: The learned trial judge erred in law in refusing to order payment of plaintiff’s salaries and allowance for the additional period of 7th September, 2004 to 16th November, 2004 which was the date the purported letter of retirement was delivered to the plaintiff.
Ground 6: The learned trial judge erred in law when contrary ‘to the pleadings of the Defendants at the lower court he wrongly held that the decision to retire the plaintiff was that of the Nigeria Customs Service Board.
Ground 7: The learned trial judge erred in law in refusing to grant plaintiff’s reliefs 3, 4, 5 and 6 as contained in the Statement of Claim when in the records there are overwhelming evidence led by the plaintiff at the trial court in support of those reliefs.
As is the practice in this court; parties filed and exchanged briefs of Argument. In the Appellant’s brief settled by A.K. Jingi, Esq., the following five issues were formulated for determination of the appeal, namely:-
- Whether it is not against the principles of Natural Justice and fair hearing for A.F. Fadahunsi, ACG, Adamu Rabiu, ACG and Olufemi Taylor, CC who investigated the plaintiff to be present at all material times in the management meeting of the 11th August, 2004 in which a decision to retire the plaintiff from service was reached.
- Whether the management team chaired by CGC (Comptroller General of Customs) that met on the 11th of August, 2004 to discipline the Plaintiff/Appellant was one and the same with the Board of Nigeria Custom Service and therefore has power to discipline the Plaintiff.
- Whether from the pleadings filed and exchanged by the parties and the evidence adduced in their support it would not have been right for the learned trial judge to grant all the reliefs of the plaintiff.
- Whether it was not the duty of the trial court to consider and determine the issue of involvement of the Plaintiff in the illegal release of the 270 packages raised by the parties before it.
- Whether the learned Trial Judge was right when he ordered that the salaries and allowances of the Plaintiff be paid up to the 6th day of September, 2004 instead of the 1st day of November, 2004 when the retirement letter was served on the Plaintiff/Appellant.
In the Respondents’ brief, settled by B.P. Ikhenoba, Esq., learned counsel formulated” the following three issues for determination of the appeal:-
1) Whether the presence of the members of the investigation team at the management meeting wherein the case that was investigated by them was being considered would vitiate the proceedings and the subsequence decision taken on the matter by the Nigeria Customs service Board.
2) Whether the Appellant was retired by the appropriate body.
3) Whether the trial court would have assumed jurisdiction to consider and determine the issue of the plaintiffs involvement in the illegal release of the 270 packages from the NAHCO Shed.
At the hearing of the appeal on the 20th October, 2008, learned counsel for the Appellant, adopted and relied on his Brief of Argument and urged the court to allow the appeal. The Respondent’s counsel was absent even though aware of the hearing date. Mr. Jingi for the Appellant urged the court to take the appeal of the Respondents as duly argued pursuant to Order 17 Rule 9 (4) of the Rules of this Court. This court accepted the Respondents appeal as duly argued pursuant to Order 17 Rule 9(4) of the Rules of this court.
Giving the facts of this case and the evidence adduced before the trial court and the issues formulated for determination by the respective counsel, the issues as formulated by the Respondent’s counsel appears bereft of some issues, I will therefore adopt the issues as formulated by the Appellant’s counsel in the determination of the appeal.
ISSUE 1
Whether it is not against the principles of Natural Justice and fair hearing for F. A. Fadahunsi, ACG, Adamu Rabiu, ACG and Olufemi, Taylor, CC who investigated the plaintiff to be present at all material times in the management meeting of the 11th August, 2004 in which a decision to relive the plaintiff was reached.
Arguing this issue, Jingi Esq., for the Appellant submitted that the composition of the team that sat at the 13th management meeting held on the 11th day of August, 2004 at the NCS Conference Room, Wuse, Abuja and the proceedings leading to the disciplinary action taken against the Appellant in the management meeting has contravened the principles of Natural Justice. It is submitted that the presence and participation of the officers who investigated the Appellant in the management meeting has greatly violated the right to fair hearing of the Appellant. Paragraph 10 of the Respondent’s statement of Defence was referred to; whereby the Respondents admitted that the officers were present in the management meeting as prosecutors only. It is his view that prosecutors do not remain with-judges to take part in the decision making or to take part in the consideration of the case(s) they presented to the deciding authority. He cited a passage from the judgment of Cotton L.J, in FROME UNITED DAIRIES VS BATH JUSTICE (1928) AC 586 AT 605. To the effect that no man can be a judge in his own case.
Learned Counsel further submitted that the mere fact that the officers remained in the conference room after the Appellant was asked to leave established a breach of the principle of Natural Justice and fair hearing, citing in support the cases of ALAKIJA VS MEDICAL DISCIPLINARY
COMMITTEE (1959) 4 FSC 38: and R VS SUSSEX JUSTICES EXPARTE MCCARTHY (1924) 1 KB 256 AT 259. On the proposition that the standard of impartially required of full time judges is the same as those required of persons who adjudicate in administrative board like the Disciplinary Investigation Board, learned counsel referred to the following cases, GARBA VS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT 18) 550 AT 619 and OYELADE VS ARAOYE A.G. WESTERN NIGERIA (1968) NWLR 44 AT 47. Learned Counsel submitted that the decision to relive the Appellant from service was taken in the meeting of the management team where the investigators and or prosecutors remained and participated as seen in pages 20 and 21 of the minutes in, Exhibit B and urged the court to give the document all the necessary weight possible -citing the case of JINADU VS ESUROMBI-ARO (2005) 14 NWLR (PT 944) 142 AT 188. The court was urged to resolve this issue in favour of the Appellant.
The learned counsel for the Respondent, Ikhenoba, Esq., while referring to paragraph 10 of the statement of defence that the investigators were not present at the meeting as members but as investigators contended that the presence of the investigating team at the Management meeting was to defend their findings and that the Appellants who was present was given adequate opportunity to explain and justify his action or defend the alleged misconduct. learned counsel referred to Section 36 of the 1999 constitution and the cases of IHEZOKWU VS UNIVERSITY OF JOS (1990) 4 NWLR (PT 146) 598, AND OLATUNBOSUN VS NISEC COUNCIL (1988) 3 NWLR (PT 80) 25. Learned counsel submitted that the case of ALAKIJA VS MEDICAL DISCIPLINARY COMMIITEE (1959) 4 FSC 38 cited by the Appellant is not applicable; stating that the fact that the investigators remained behind after the Appellant had left the meeting does not breach the rules of Natural Justice. The following cases were referred to; OTAPE VS SUNMONU (1987) 2 NWLR (PT 58) 587 AT 605; MOHAMMADU VS KANO N.A (1968) 1 ALL NLR 424 AND R.SUSSEX EXPARTE MCCARTHY (1924) 1 KB 256 AT 249. It is the view of learned counsel that the investigators were precisely prosecutors and not members of the panel of management meeting that put up the final recommendation to the 1st Respondent who later retired the Appellant. It is also his view that the staying back by the prosecutors to defend their report or findings is of no consequence and that the case of FROME UNITED DAIRIES VS BATH JUSTICES (Supra) cited by the Appellant’s counsel is not applicable to the circumstances of this case.
The principle or doctrine of fair hearing in its statutory and constitutional sense is derived from the principle of Natural Justice under its twin pillars namely audi alteram partem ”hear the other side” and nemo judex in causa sua meaning “you cannot be a judge in your own case” and which is of general application not only in Nigeria but other common law countries to the extent that a presumption has now evolved that whenever any power is conferred by any statute on any authority or body to make a determination, such a determining power shall be exercised judicially and in accordance with the rules of Natural Justice. Therefore, a breach or otherwise of fair hearing is regarded or treated as very fundamental and a sine quo non to any proceedings, hearing or trial which is subject to an adjudication process. See MFA VS INONGHA (2005) 7 NWLR (PT 923) 1; and FCSC VS LAOYE (1989) 2 NWLR (PT106) 652. Where therefore, there is an absence of one pillar then a litigant would not be said to have had a fair hearing because both pillars must exist side by side.
In the instant case, the Appellant appeared before the Management meeting in which the decision to retire him was reached; the prosecutors who prosecuted his case remained behind with the members of the management committee when the Appellant was asked to leave. This singular act therefore of the prosecutors remaining behind in the room, and thereafter an adverse decision was given against the Appellant creates suspicion that there has been an improper interference with the course of justice; it thus creates a shadow of bias in the panel. This no doubts offend the 2nd arm of the twin pillars of justice, nemo judex in causa sua. The prosecutor’s being a judge in its own case. In the case of ALAKIJA VS MEDICAL DISCIPLINARY COMMITTEE (Supra), the Registrar did the investigation and when the Disciplinary Committee was sitting on the matter, he remained with the committee during its deliberations, the court held that,
“…although the evidence did not disclose that the Registrar actually took part in the committees deliberations, his mere presence threat offended against the principle that justice must not only be done but must also be manifestly seen to be done, and was contrary to the principles of Natural Justices.”
See also R.VS SUSSEX JUSTICES EXPARTE MCCARTHY (SUPRA) AT PAGE 259.
An administrative tribunal or investigation panel is bound to observe the principles of audi alteram partem and nemo judex in causa sua enshinned in the rules of Natural Justices. See AGBI VS OGBEH (2005) 3 NWLR (PT 926) 40; BAMAIYI VS BAMAIYI (2005) 15 NWLR (PT 948) 334; ADIGUN VS A.G. OYO STATE (1987) 2 NWLR (PT 56) 197. In the circumstances, the argument of the respondents that the prosecutors stayed behind only but were not part of the management meeting is of no moment. The prosecutors may not have been part of the deliberations of the panel, but would an objective man think in a situation where an accused was asked to leave a room and his prosecutors stayed behind with the panel that eventually gives an adverse decision against him that justice has been done in the case. A shadow of doubt is created even if the person or the panel has a high level of integrity. Clearly the presence of the prosecutors at the deliberations with the panel members offends against the principle of Natural Justice that justice must not only be done but must be manifested seen to be done. See ESIAGA VS UNIVERSITY OF CALABAR (2004) ALL FWLR (PT 206) 381; AND UNIVERSITY OF UYO VS ESSEL (2006) ALL FWLR (PT 315) 80. The finding therefore by the learned trial judge that the presence of the prosecutor at the management meeting would not vitiate the steps taken at the meeting cannot stand. This issue is resolved in favour of the Appellant and against the respondent.
ISSUE2.
Whether the management team that met on the 11th of August, 2004 to discipline the plaintiff/Appellant was one and the same with the Board of Nigeria Custom service.
Learned counsel for the Appellant submitted that the Management Team that met on the 11th August, 2004 to discipline the Appellant was not one and the same with the Board of Nigeria Customs Service. It is 08, only the Board of Nigeria Customs Service can discipline him and that the power is non-delegable citing Section 6(2) of Decree No 45 of 1992, Board of Customs and Excise Act, in support. Learned counsel referred to the finding of the learned trial judge to the effect the Appellant was an officer within the category of level 08 and above and therefore his discipline cannot be delegated by the Board and submitted that the decision by the lower court that it was the Board that took the decision to relieve the Appellant was misconceived in the circumstances as there was no evidence to that effect on record. Jingi Esq., also referred to page 21 of Exhibit “8” the minutes of the management meeting and submitted that the management team has nothing in common with the Board. Learned, counsel captured the list of the management and the membership of the Customs service Board as provided under section 2 of the Decree and submitted that the two bodies are completely different: It is submitted that assuming that the Board ratifies the decision of the management team, the proceedings of the management team having violated the rules of natural justices must be set aside, citing in support the following cases; OYELADE VS ARAOYE & A.G.WESTERN NIGERIA, (SUPRA), AND MACFOY VS UAC (1961) 3 ALL ER 1169 AT 1172. It is also the view of learned counsel that the usage of the letter head of the Board of Customs Service has not by itself signified that the Board retired the Appellant and the court was urged to hold that the management team that met on the 11th day of August, 2004 is not the same thing as the Board of Customs Service and that by Decree No 45 of 1992. It has no power to discipline the Appellant. Customs Service and that by Decree No 45 of 1992. It has no power to discipline the Appellant.
Responding, learned counsel for the Respondent, Ikhenoba, Esq., referred to Section 4 of the Board of Customs and Excise Decree No 45, 1992 wherein the 1st Respondent is charged with the responsibility of appointing, promoting and discipline of the Officers of the Nigeria Customs Service albeit Section 6(2) of the said Decree which stipulated that the Board shall not delegate any of its power aforesaid in Section 6(1) in respect of any officer on grade level 08 and above and submitted that the 1st respondent had promoted the Appellant on few occasions as pleaded in the statement of claim and that it is same 1st Respondent that decided to discipline the Appellant for gross misconduct committed. It is submitted that it was the Board and not the management that retired the Appellant based on the findings of his gross misconduct citing the retirement letter dated 6th September, 2004 in support and the case of AMOKEODO VS IGP (2001) FWLR (PT 33) RATIO 13 OR (1999) LRCR VOL.69 PG.1084.
It is the view of learned counsel that the Issue of non-delegation of duty does not arise since the management renders its advisory duty to the Board. Learned counsel referred to the duties of the Board as encompassed under Section 3(a) of Decree No. 45 and Section I which also provides for staff regulation and submitted that the appropriate authority to retire the Appellant was the Nigeria Customs Service Board and that it was the Board that retired the Appellant.
The contention under this Issue is whether the body that retired the Appellant is the proper authority to do so. Section 2 of Decree No. 45, 1992 has set out the composition and membership of the Board of Customs Service. By virtue of Section 4 of the Decree, the 1st Respondent is saddled with the Responsibility of appointing, promoting and discipline of the officers of the Nigeria Custom Service. Section 6(2) of the Decree stipulates that the Board shall not delegate any of its powers aforesaid in Section 6 (1) in respect of any officer on grade level 08 and above.
The Appellant who was a superintendent of customs joined the service of the Nigeria customs on the 3rd day of April, 1989 as an Assistant Superintendent of customs on grade level 08 step 11. He was promoted several times, the last being a superintendent of customs on grade level (HPPSS 11) until his retirement on the 16th day of November, 2004. It is therefore clear, that the’ Appellant was above a grade level 08 officer. In I.B.W.A. VS IMANO (NIG.) LTD (1988) 3 NWLR (PT. 85) 633 AT 660, Karibi-whyte, JSC, stated thus:-
“It is a fundamental rule for the Interpretation of statutes that where the words used are clear and unambiguous, they should be construed as they are and given their ordinary plain meaning.” See also STEEL-STRUCTURES LTD VS. A.C.B. LTD (1973) 1 ALL NLR 266.
It is therefore clear from the wordings of Section 6 (2) of the Decree 45, as to who should discipline a grade level 08 and above officer, the words being so unambiguous; effect must therefore be given to them. It is trite that where the word “shall” is used in a statute, it requires that the said obligation is mandatory.
The names of those in the management team as shown on page 13 of the Appellant’s brief of argument are definitely different from those named in Section 2 of the Decree. They are obviously two different bodies. There is no evidence from the record of the trial court to show that the Board constituted the management team or even ratified the decision of the management team to retire the Appellant. In the absence of such evidence before the trial court, any thing done by the management team towards the retirement of the Appellant was a null and void act as same was done without authority, the jurisdiction of the management team had already been ousted by the provision of Section 6 (2) of the. Decree, which provides that:-
6 (2) notwithstanding subsection (1) of the Decree, the Board shall not delegate any of its powers aforesaid in respect of any office on Grade Level 08 and above.
In the circumstances, the Board cannot ratify the decision of the management team taken to retire the Appellant in the absence of clear authority from the Board or evidence to that effect before the trial court. The letter headed paper of the Board used to serve the retirement letter on the Appellant cannot validate a void act or remedy, the defect already established. In MACFOY VS UAC (SUPRA) AT PAGE 1172 Lord Denning Mr., held that:-
“¢¢¢ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also incurably bad. You cannot put something on nothing and expect to stay there. It will collapse”.
In view of the foregoing, it is my humble view that the management Team that sat and reached the decision to retire the Appellant is not the appropriate authority to have done so. It is only the Board of Customs Service that can retire the Appellant. This issue is resolved in favour of the Appellant against the Respondents.
ISSUE 3
Whether from the pleadings filed and exchanged by the parties and the evidence adduced in support, it would not have been right for the learned to grant all the reliefs of the plaintiff.
Arguing this Issue, learned counsel for the Appellant submitted that from the pleadings filed and exchanged by the parties and evidence adduced in their support, it would have been right for the learned trial Judge to grant all the reliefs of the Appellant. It is submitted that parties are bound by their pleadings and cannot present a different ease from what is contained in their pleadings citing in aid the cases of; SANYINNA VS AFRICAN INT. BANK (2003) 4 NWLR (PT 703) 355; AGUSIOBO VS. OKAGBUE (2001) 15 NWLR (PT. 737) 502. It is the view of learned counsel that from the pleading of the parties, the court would have determined the case in favour of the Appellant especially that the evidence adduced in support of the pleadings is not in any way at variance with the pleadings. He opined that the court must decide a case on legal evidence adduced in support of pleaded facts at the trial and failure to do so; the Court of Appeal could interfere with same. The following authorities were cited in FANI (1986) 2 NWLR (PT. 21) 147 AND KAUSANI VS KAUSANI (2000) 2 NWLR (PT. 646) 681 A6 687. This court was urged to resolve this issue in favour of the Appellant and grant all the reliefs of the Appellant.
The Respondent did not make any reply to this issue raised by the Appellant.
It is trite that issues are decided by evidence adduced and pleadings deal mainly with the facts. OLUFOSOYE VS OLURUNFEMI (1989) 1 NSCC 21 AT 28. The Defendant may admit in his statement of defence a fact alleged in the statement of claim. What is admitted thus ceases to be in controversy between the parties. At the trial it needs not be proved by any of the parties but will be taken as established. See section 75 of the Evidence Act Cap 112 LFN, 2004; NATIONAL INVESTMENT VS THOMPSON ORGANISATION & ORS. (1969) 1 NMLR 99 AT 103.
The Appellant had pleaded in paragraph 23 of the Statement of claim as shown on page 8 of the record of appeal that the Board did not do anything leading to his retirement and that it just based its decision on the proceedings of the Management meeting. The Respondents in paragraph 11 of the statement of defence admitted these averments as shown at page 32 of the record of appeal. “The contention of the Appellant was that, in view of the admission of the Respondents in ‘paragraph 11 of their statement of defence, the learned trial judge ought to have granted the Appellants all his reliefs as claimed in its statement of claim. It is trite that a court should base its judgment upon the evidence as presented by the witnesses. Where it fails to follow this course, this court will interfere with the decision. In the instant ease, what the Respondents admitted is not the claim of the appellant but the fact that it was at the management meeting chaired by the 2nd Respondent that the management passed the verdict to retire the Appellant and did retire him from service vide letter with Ref. No. NCSB/ABJ/AP&D/94/S3/Vol. IX/66 dated the 6th of September, 2004. The claims of the Appellant are as contained in paragraph 27 of the statement of claim. For the court to grant all the reliefs as claimed, the court must be satisfied by credible evidence adduced by the appellant to the satisfaction of the court. A claim is not established by mere admission of an issue.
This issue is resolved against the Appellant.
ISSUE 4:
Whether it was not the duty of the trial court to consider and determine the issue of involvement of the plaintiff in the illegal release of 270 packages raised by the parties before it.
On this issue, learned counsel for the appellant submitted that since both parties in their pleading and evidence consistently raised the issue of involvement and non-involvement of the appellant in the purported release of the missing packages that the trial court ought to have considered and determine the Appellant’s involvement. It is the view of the learned counsel that since parties have joined issues on the issue of when the Appellant reported for duty at the NAHCO Shed, it is
the duty of the trial court to resolve the issue one way or the other. That it is the duty of the court to consider all issues placed before it for that it is the duty of the court to consider all issues placed before it for adjudication, citing the following authorities in support; NARUMAL & SONS (NIG.) LTD. VS N.B.T.C. LTD. (1989) 2 NWLR (PT. 106) 730; NDILI VS AKINSUMADE (2000) 8 NWLR (PT. 668) 293 AT 348; AND OROKE VS EDE (1964) NNLR 118 AND NARUMAL & SONS LTD. VS NBTC LTD. (SUPRA) AT 336. The court was urged to resolve the issue in favour of the Appellant.
In his response, learned counsel for the Respondent submitted that matters pertaining to the criminality of a person alleged to have committed an offence are commenced in a criminal suit. It is the view of learned counsel that the level of culpability of such a person is for the criminal trial court to look into after being invited to do so in the proper way. It is submitted that Appellant was given opportunity to explain and justify himself was found guilty of gross misconduct and was subsequently retired by the Respondent. That the duty of the court is to resolve the dispute between the parties before it and not to engage in investigation. It is the view of the learned counsel that the trial court could not have assumed jurisdiction to consider and determine the issue of the appellant’s involvement in the illegal release of 270 packages from NAHCO Shed.
The claim of the appellant before the trial court inter alia, was for a declaration that the 2nd Respondent lacked competence to set up investigation panel and disciplinary committee to investigate and discipline the Appellate for the allegation of illegal authorization of the release of and permitting the removal of 270 packages of cargo seized from Swift Freight International Flight from NAHCO Shed and to declare him suspension and retirement thereon as null and void.
The issue therefore was for wrongful suspension and subsequent dismissal from service. It is not therefore the duty of the trial court in the circumstances to delve into the involvement or otherwise of the appellant in the missing of the 270 packages of cargo. It is not the function of the trial court to investigate and consider the degree of culpability if any of the Appellant. The jurisdiction of the trial court in the circumstances is to consider whether the retirement of the Appellant was wrongful or proper in the circumstance but not investigate the level of his involvement in the missing of 270 packages of cargo.
The jurisdiction of the trial court is determined by the claim of the plaintiff before the trial court and in the instant case the claim being for wrongful dismissal from service. It is not therefore the duty of the trial court to venture to consider the involvement of the Appellant in the missing 270 packages of cargo. The Respondents by their investigation found the Appellant guilty of gross misconduct as a result of which he was relieved of his duty and the issue before the trial was to consider whether the retirement was proper in law and not to determine the level of culpability of the Appellant in the missing of the 270 packages of cargo. Investigation is not the function of the court and the trial court could not have assumed jurisdiction to consider and determine the issue of the Appellants involvement in the illegal release of 270 packages from NAHCO shed; consequently this issue is resolved against the Appellant and in favour of the Respondent. ISSUE 5
Whether the learned trial judge was right when he ordered that salaries and allowances of the plaintiff/Appellant be paid up to the 6th day of September, 2004 instead of 16th day of November, 2004 when the retirement letter was served on the plaintiff/Appellant.
Arguing this issue, learned counsel for the Appellant submitted that the trial judge was wrong when he held that the Appellant’s salaries and allowances be paid up to the 6th September, 2004 when the retirement letter was written instead of 16th November, 2004 when it was actually issued to the Appellant. It is submitted that an employee’s salary becomes due and his right to it is vested at the end of each month, and therefore an employer cannot dismiss, terminate or compulsorily retire his employee with retrospective effect with the view to denying him his vested right to his salary and allowance.
It is further submitted that the Appellant was entitled to recover his salary and allowances up to the 16th day of November, 2004 when he was served with his retirement letter and not 6th of September, when the retirement letter was written., The following authorities were referred to; HEALEY VS SOCIETIE ANONYME FRANCAISE RUBASTIC (1917) 1KB 946; UNDER WATER ENGINEERING CO. LTD VS DARUSHA DUBEFON (1995) 6 NWLR (PT400) 156 at 164.
The Respondent counsel made no reply to this issue.
In the instant case, the Appellant received the letter of retirement on the 19th day of November, 2004. There was no evidence on record that the Appellant was not at his duty place up to the time the retirement letter was issued to him on the 19th day of November, 2004, and he could have every reason to believe that his employment was still subsisting up till the 16th of November, 2004 and should be entitled to remuneration up to that date. An employees salary because due and his right to it is rested at the end of each month. Hence, the employer cannot dismiss or terminate his employee’s employment with retrospective effect with the view of denying him of his rested right to his salary. In UNDER WATER ENGINEERING CO. LTD VS
DARUSHA DUBEFON (supra) the Supreme Court held that the Respondent’s absence from duty from 20th May to 12th October, 1982 was as a result of his arrest and prosecution at the instance of the Appellant. It cannot be said that he voluntarily absented himself from work without excuse, he had every reason to believe and rightly too, that his employment was still subsisting at least up to 12th October 1982 when he received oral instruction that his services were no longer required by the Appellant. He was fully entitled to his remuneration as it accrued from month to month that is from May to October, 1982. In the instant case, the only logical conclusion in the circumstance of this case is that the Appellant employment continued until the 16th November when the retirement letter was issued to him and not the 6th of September when the letter was written. The Appellant is therefore entitled to remuneration up to the 19th November, 2004. This issue is also resolved in favour of the Appellant.
Based on the above findings, it is my humble view that this appeal succeeds and it is hereby allowed except for the finding of this court on issues 3 and 4 on the grant of all the Appellants reliefs by the trial court and the fact that the trial court is not bound to consider and determine the issue of involvement of the Appellant in the illegal release of the 270 packages of cargo not being the claim of the Appellant before the trial court. This appeal therefore succeeds in part and it is hereby allowed. Consequently, the decision of the trial court affirming the retirement of the Appellant as being proper is hereby set aside. The decision of the Management Committee retiring the Appellant from Service is hereby set aside as being made without authority and also contravenes the principles of Natural Justice.
The Appellant is entitled to costs against the Respondents assessed at N30, 000.00.
Other Citations: (2008)LCN/2977(CA)
