Mr. Lawrence Azenabor V. Bayero University, Kano & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
Three years after the 1st Respondent employed the Appellant as a Chief Typist in November, 1987, he was re-designated Higher Executive Officer (Accounts), and four years later, was promoted to Senior Executive Officer (Accounts). However, following an allegation of forgery and attempt to defraud the University of over N5.6 Million, he was suspended and later arraigned before a Chief Magistrate Court in Kano. After he was discharged but not acquitted by the Chief Magistrate Court, he wrote a letter dated 4th May, 1995 to the 1st Respondent requesting that he should be re-instated. But to his dismay, he received a termination letter dated 24th September, 1995.
Aggrieved by the termination of his appointment, the Appellant filed an action at the Federal High Court, Kano, wherein he claimed –
a) A declaration that the purported termination of appointment of the plaintiff by the defendants is unconstitutional, unlawful, ultra vires and void.
b) A declaration that the purported termination of the Plaintiff being void the Plaintiff continues to be an employee of the first Defendant.
c) An injunction restraining the Defendants from treating the Plaintiff as terminated from his employment.
d) An order restoring the Plaintiff to his position in the first Defendant together with all rights and privileges attached thereto.
At the trial, only the Appellant testified. The Respondents, who had filed a Statement of Defence, did not proffer any evidence, and in his Judgment delivered on the 13th of July, 1999, Senlong, J., held thus-
“Not only has the Plaintiff failed to plead and prove the conditions of service governing his employment but he also failed to prove that he was put on trial before the investigation Committee of the Defendants ‘on charges of criminal acts. His failure to tender the conditions of service applicable to his employment and the report of the investigating Committees is fatal to his case. He has therefore failed to discharge the minimal standard of proof required to discharge the minimal standard of proof required to sustain the case. – On the whole, I find that the Plaintiff has failed to prove his case and his case must fail. The case fails – -“.
Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and in the Appellant’s brief prepared by O. E. B. Offiong, Esq., it was submitted that the Issues arising from the said four Grounds of Appeal are as follows –
(1) Was the learned trial Judge entitled to ignore the provisions of Section 15 of the Bayero University Act in the determination of whether Appellant’s employment had been lawfully terminated?
(2) Was the learned trial Judge right in his conclusion that upon a proper interpretation of Exhibit H in the circumstances of this case, the Respondents were not basing their termination of the Appellant upon the allegation of guilt in respect of the offence of attempting to use forged documents to defraud the account of the Respondents at Central Bank of Nigeria.
(3) Was the learned trial Judge right in holding that the Appellants could nevertheless be terminated upon allegation bordering on criminality even though he had not admitted the offence and notwithstanding that the allegation had not been proved against him in a Court of law or Tribunal of competent jurisdiction?
(4) Was the Judgment of the Court not against the weight of evidence?
The Respondents adopted the above Issues in their brief prepared by Dr. S. E. Mosugu, and I will do same in dealing with this appeal.
The Appellant’s arguments on Issue (1) are hinged on the conclusion of the lower Court at p. 61 of the Record, as follows-
“From Exhibit A, I am satisfied that the Plaintiff’s employment has a statutory flavor deriving from the University Law and the Regulations – – It therefore behooves him to prove that in the termination of his employment the Defendants had not complied with the provisions of the University Law or the Regulations. It is not enough to merely aver that the termination was unlawful and ultra vires the Defendants. Without proving the conditions or law that has been breached by the Defendants, the Plaintiff cannot be said to have discharged the burden on him”.
The Appellant’s contention is that having found that his employment has statutory flavor deriving from the University Law and Regulations, the lower Court erred in not adverting to them in determining whether or not the conditions prescribed for the termination of his employment had been strictly observed, citing Olaniyan & Ors Vs. University of Lagos and Anor (1985) 2 NWLR (Pt. 9) 599, and that he is not required to tender the Act or Regulations, which are principal instruments and subsidiary legislation that the Court can take judicial notice of and apply to the dispute, citing Section 74 of the Evidence Act and Olagunju v. Yahaya (2004) 11 NWLR (Pt. 883) 24.
The Respondents however argued that the lower Court’s remark on the Appellant’s employment enjoying statutory flavour was orbiter, that the Appellant was employed as a typist but rose to the rank of an Administrative officer (Accounts) and nothing in the Bayero University Act covers his employment with statutory flavour, properly so-called; and that Olaniyan V. University of Lagos (supra) cited and relied upon by Appellant is irrelevant to this case as Olaniyan’s case dealt with tenured University Professors while this one pertains to a typist.
On the Appellant’s argument that the lower Court ought to have adverted to the University’s Regulations, they submitted that the Regulations were neither pleaded nor tendered in evidence and it is not for the Court to take judicial notice or look out for the Regulations, citing Udeagbunam v. FCDA (2003) 10 NWLR (Pt. 829), that the onus is on the employee to plead and prove contract of service; and that it is not for the employer to prove that the termination was not wrongful, citing Ansambe v. BON Ltd. (2005) NWLR (Pt 929) 630; Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589, Amode v. Amode (1990) 5 NWLR (Pt. 150) 356, Katto v. CBN (1999) 6 NWLR (Pt.607) 390 and Adams v. LSDPC (2000) 5 NWLR (Pt. 656) 291.
Ordinarily, a master has the right to terminate his servant’s employment for good or bad reasons or for no reasons at all, and the basic issue that calls for resolution in a dispute between a master and servant is whether the contract of service is one with statutory flavour. Where the contract has statutory flavour, the question that pops up is has the servant’s employment been determined in accordance with the way and manner prescribed by the Statute under reference? Or, is the contract governed by an agreement of the parties and not under any statute? See Geidam V. N. E. P. A. (2001) 2 NWLR (pt.696) 45.
An employment is said to have statutory flavour when the appointment is protected by statute, and an employment is protected by statute when statutory provisions govern the appointment and termination. Except in employment governed by statute wherein the procedure for employment and discipline of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour See Udo v. C.S.N.C. (2001) 14 NWLR (pt.732) 116; Geidam v. N. E. P. A. (supra), Nitel Plc. v. Ocholi (2001) 10 NWLR (pt.720) 188. The fact that an organization is a statutory body does not mean that the conditions of service of its employees are protected by statute – see UMTHMB v. Dawa (2001) 16 NWLR (pt.739) 424 & Opuo V. N.N.P.C. (2001) 14 NWLR (pt. 734) 552. Thus, it is not enough to merely prove that the employer is a creation of statute, there must also be proof that the employment is directly governed or regulated by a statute or a section of the statute delegate power to an authority or body to make the regulations or conditions of service as the case may be – see Obu v. N.N.P.C. (2003) 9 WRN 4 76, where the Supreme Court per Uwaifo J.S.C. distinguished the cases of Olaniyan V. University of Lagos (supra) & Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40, as follows-
“It seems to me that the Appellant may have misplaced his reliance on Olaniyan to contend that his employment for some reason must enjoy statutory flavour whereas, as will be shown, he was occupying a considerably low cadre as a junior staff of grade C in the Respondent’s employment. It is easy to understand from Olaniyan and Shitta-Bey that the rules and regulations which are claimed by an employee to be part of the terms and conditions of his employment capable of giving it statutory flavour and be of protection to the employee must (1) have statutory reinforcement or at any rate, be regarded as mandatory, (2) be directly applicable to the employee or persons of his cadre, (3) be seen to be intended for the protection of that employment; and (4) have been breached in the course of determining the employment; before they can be relied on to challenge the validity of that determination”. (Highlight mine).
The onus is therefore on the employee, who complains that his employment has been wrongfully terminated, to place before the Court the terms of the contract of his employment with his employer, and to prove in what manner the said terms have been breached; it is not for the employer to prove them and how they were breached. Thus, the terms and conditions of an employment is the bedrock upon which any claims premised on such employment must squarely rest – see Akinfe v. UBA PLC (2007) 10 NWLR (Pt. 1041) 185; Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 504, Ziideeh V. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) 554 SC, and Morohunfola v. Kwaratech (1990) 4 NWLR (Pt.145) 506 SC, where the Supreme Court held as follows-
“In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the Defendant and the trial Judge. Without the contract and its particulars being pleaded by the Plaintiff no evidence of the terms of the contract would be admissible at the trial, and this will be fatal to the action since it will lack foundation” (Highlights mine)
In this case, the Appellant was employed as a Chief Typist and rose to Senior Executive Officer (Accounts), and the law, as I said earlier, is that the fact that his employer is a creation of statute does not automatically mean that his employment must enjoy statutory flavor.
The onus therefore lay squarely on the Appellant to prove that his employment with the Respondent University enjoys statutory flavor, and I must say I agree with the Respondent that the lower Court’s comment that the Appellant’s “employment has statutory flavor” is neither here nor there and cannot avail the Appellant because there is no foundation to found or sustain that conclusion. The Appellant merely averred in paragraph 12 of his Statement of Claim that the purported termination of his appointment “is unlawful and unconstitutional and ultra vires the powers of the Defendants”. But it is not enough, as the lower Court itself held, to merely aver that the termination was unlawful and ultra vires, he must go further to prove the terms and conditions that had been breached by the Respondents before he could be said to have discharged the burden on him. Thus, the lower Court’s decision on this issue cannot be faulted in any way.
The Appellant’s Issues (2) and (3) are based on the lower Court’s interpretation of the termination letter, Exhibit H, which reads-
“Please refer to your letter of 4th May, 1995 vide which you forwarded a copy of a document indicating that you had been discharged by the Court over the case of forgery and attempted fraud on University Account – -. (2) It is noted that you were discharged, not acquitted, by the Court. It is also clear that you were discharged for failure of the Prosecution to attend proceedings not because of lack of evidence or lack of courage on the part of would be witnesses who did not know that your trial was going on.
(3) The University Council at its last meeting considered your letter and the attached document. It also had recourse to the opinions of two legal experts on the Report of the Investigation Committee on the case of forgery and attempt to defraud the University of over N5.6 Million Naira from the institution’s account 236 with the CBN.
(4) At the last meeting held on 20th September, 1995, Council decided to do away with your services forthwith. Your appointment therefore stands terminated with immediate effect.
(5) You will be paid:-
(i) The balance of half salary from 18th November, 1993 –
(ii) Gratuity for the period you have served the University.
(6) Any payment to which you will be entitled will be made only after
(7) Finally, please note that in view of the circumstances leading to the termination of your appointment, you are not allowed free access to the University generally and your former department in particular. You will therefore liaise with the Security Office when coming for any claim”.
The lower Court reproduced Exhibit H, and further stated as follows-
“From the language of Exhibit ‘H’ I do not find any evidence that the Plaintiff was accused, charged and tried for forgery or attempt to defraud the 1st Defendant by the investigation committee set up by the Defendants. – – – The 2nd Defendant at its meeting of 20th September, 1995, decided to do away with the services of the Plaintiff forthwith. The Defendants did not say that the forgery or attempt to defraud the 1st Defendant was committed by the Plaintiff. Indeed neither in Exhibit ‘G’, the suspension letter, nor in Exhibit ‘H’ was the Plaintiff accused of committing the alleged offence. The Report of the Investigating Committee was not tendered in evidence so as to give the Court a glimpse as to whether the Plaintiff was accused of alleged offences. In the absence of any evidence that the Plaintiff was accused and tried by the investigation committee for the alleged criminal acts, I can only speculate but which I cannot rely upon. – – – I cannot therefore agree with the submission of learned counsel for the Plaintiff that the Investigation Committee put the Plaintiff on trial and found him guilty of the alleged criminal acts. Where is the Report of the Investigation Committee to enable the Court determine whether indeed the Plaintiff was tried by the investigation Committee for the alleged criminal acts? The burden of proof is on the Plaintiff and he has failed to discharge it”.
The Appellant submitted that the lower Court did not interpret Exhibit H harmoniously but adopted a fragmentary interpretation of each paragraph of Exhibit H, which is wrong, citing Unilife Dev. Co. Ltd. V. Kolu Adeshingbin (2001) 4 NWLR (Pt.704) 609, and that a harmonious reading of Exhibit H shows that his appointment was terminated because of the reasons given in paragraphs (2) and (3). Furthermore, that the allegations of forgery and attempting to defraud the account of the 1st Respondent at CBN are offences under Section 362 and 366 of the Penal Code, and the Respondents were incompetent to investigate these offences and find the Appellant culpable on them and proceed to terminate his appointment; that the said allegations ought to have been tried in a Court of competent Jurisdiction before the Respondents could rely on it, citing Garba Vs. University of Maiduguri (1986) 1 NWLR(Pt. 18) 550, and that what the Respondents have sought to do is a dangerous and fundamental invasion of his right as a citizen to have allegations against him determined in a Court or Tribunal of competent jurisdiction.
The Respondents however submitted that the case of Unilife v. Adeshingbin (supra) relied on by the Appellant dealt with Lease Agreement or written instrument while this case is about the contents of a termination letter; that their Investigation Committee did not investigate the Appellant’s alleged commission of crimes, and no pronouncement was therefore made on his criminal culpability so the question of the invasion of his rights does not arise; and that there was no allegation of crime against the Appellant in Exhibit H, thus the case of Garba v. Univ. of Maiduguri (supra) cited by the Appellant, which is already misunderstood, was misapplied in this case.
Yes, it is a general rule, which is however subject to exceptions, that where the dismissal of an employee is based on an allegation of crime, that allegation must first of all be proved before the dismissal can stand – see Savannah Bank (Nig.) Plc. V. Fakokun (2002) 1 NWLR (pt. 749; S.P.D.C. V. Olarewaju (2002) 16 NWLR (pt. 792) 38.
This is to give the employee adequate opportunity to explain himself before a Tribunal vested with criminal jurisdiction before his employer takes any disciplinary action against him – see Arinze V. First Bank (Nig.) Ltd. (2000) 1 NWLR (pt. 639) 78, where this Court held that-
“- – The focus of the decisions in Sofekun v. Akinyemi and F.C.S.C. v. Laoye (supra), behind which are ranged a long line of landmark decisions of the same ilk is primarily the right of fair hearing rather than a vindictive exposure of the erring employee to the punitive sledge of the criminal law”.
In other words, the focal point of the decision in Garba v. University of Maiduguri (supra) cited by the Appellant, is the right of fair hearing. In that case, the Panel set up by the Respondent University interviewed 104 witnesses and at the end of its investigations, several students including the Appellants were expelled. The Appellants in Garba’s case (supra), instituted the action which ended up at the Supreme Court, wherein Nnamani, JSC held as follows-
“The Appellants being among the 104 witnesses allegedly interviewed can be said to have been “heard” but they cannot having regard to the principles of natural justice discussed above be said to have had the opportunity of being heard in reply to the serious allegations made against them. There was therefore in my view a serious breach of the principles of natural justice”. (Highlights mine)
As I said, there are exceptions to every general rule, and it is now settled that it is not in every case that an employee must be arraigned before a Court before disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge – see Uzoho v. Task Force on Hospital Management (2004) 5 NWLR (pt.867), Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78 & Yusuf v. Union Bank (1996) 6 NWLR (Pt. 457) 632 Be, where Wali, JSC observed-
“On the issue of fair hearing which the Appellant belatedly introduced, it is my considered view that before an Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime.
In this case, the Appellant as PW1 testified as follows at pp. 24/25-
“While Police investigations where going on, the University set up a Committee to investigate the alleged case of attempted fraud. At the end of the Committee’s sitting Mrs. Adepoju and myself where re-deployed. The Committee invited me. I was told the Committee is sitting in respect of the fraud. I was not told who was accusing me. Throughout these sittings I was never told the area of my involvement in the attempted fraud. I was also not given reasons to ask questions. – – – While I was serving the suspension I was sent another letter notifying me of another Committee.
The outcome of the first Committee was never communicated to me. I was told to reappear again before the second Committee. I did. Questions were put to me which I supplied answers to. (Highlight mine) There is therefore no question as to the fact that the Appellant was given adequate notice of the allegations against him, and opportunity to make representation in his defence before the Investigation Committees set up by the University to look into the said allegations.
His complaint to the contrary is baseless and totally lacks merit.
There is also no basis for his complaint that the Respondents found him culpable and on that ground terminated his appointment. There was nothing before the lower Court to justify such a conclusion, and it was clear, as the lower Court rightly held, that the Appellant’s failure to tender the Reports of the Investigation Committees, or even give the Respondents Notice to produce them, is fatal to his case.
In any case, the law is settled that in a master/servant relationship there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. What constitutes misconduct is not clearly spelt out, but “gross misconduct” has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer, and misconduct in this sense is what the employer makes it out to be. It could be a series of disobedient actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution –
see Borishade v. N.B.N. Ltd. (2007) 1 NWLR (Pt 1015) 217.
In this case, it is clear from a close reading of Exhibit “H” that the Respondents did not categorically say that they were terminating the Appellant’s appointment because he was guilty as charged but because, in the circumstances, they could not work with him again. The Respondents made this clear in paragraph 4 of Exhibit “H”, thus-
“At the last meeting held on 20th September, 1995, Council decided to do away with your services forthwith. Your appointment therefore stands terminated with immediate effect”.
The 2nd Respondent decided to do away with his services forthwith, and that is all there is to it; the lower Court was clearly right to so hold. In the circumstances, the Appellant cannot be granted a declaration that he is still in the employment of the Respondents, and the Respondents cannot be directed to re-instate him in its employment.
On Issue 4, it was argued that since the Respondents did not give evidence, the Appellant ought to have succeeded in his claims.
The Respondents however submitted that their failure to call evidence does not automatically lead to the Appellant’s case succeeding; that the rule of minimal evidential requirement applies in the circumstances of this case, citing Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444, Imana V. Robinson (1979) 3 – 4 SC 1 & Asafa Foods v. Alrain (Nig.) Ltd. (2002) 12 NWLR (Pt. 781) 353.
The Respondents are right; in civil matters, a Plaintiff cannot assume that he is entitled to automatic Judgment just because the other party had not adduced evidence before the trial Court – see Agienoji v. C.O.P., Edo State (2007) 4 NWLR (Pt. 1023) 23 and Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt.1057) 218 SC at 247, where the supreme Court per Mukhtar, JSC, held as follows –
“Failure on the part of a Defendant to give evidence does not automatically mean that Judgment must be given in favour of a Plaintiff, who has a duty to prove his case. Where a Plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out, notwithstanding the fact that the Defendant did not give any evidence”.
In this case, even though the onus was on the Appellant to establish his case on a minimum of proof, he failed to discharge this burden on him with any credible evidence that would tilt Judgment in his favour, and the lower Court was therefore right to throw out his case.
In conclusion, all the Issues are resolved against the Appellant, and the end result is that the appeal lacks merit. It therefore fails and is hereby dismissed.
There will be no order as to costs.
Other Citations: (2009)LCN/3279(CA)
