A. R. Momoh V. Central Bank of Nigeria (2007)
LawGlobal-Hub Lead Judgment Report
HON. JUSTICE ABDU ABOKI, J.C.A.
This is an appeal against the Judgment of Justice J. Adah of the Federal High Court, Abuja delivered on the 28th of June 2004, dismissing the claim of the Plaintiff/Appellant, and granting in part the Counter-claim of the Defendant/Respondent by ordering the Plaintiff/Appellant to vacate the Defendant/Respondent’s Staff Quarters within three days of the Judgment.
The facts of this appeal are briefly stated as follows: The Appellant was an employee of the Defendant/Respondent as a Senior Manager, Transport and Travels office in the Administration Department at Abuja, on Central Bank of Nigeria Salary Scale 04. By a letter dated 18/4/99, the Plaintiff/Appellant was placed on Suspension without pay for alleged grave misconduct. By another letter dated 19/8/99 which was delivered to him on 23/8/99 the Plaintiff/Appellant was given a query in which he was requested to explain to the satisfaction of the Director of Personnel of the Defendant/Respondent on or before 23/8/99 why disciplinary action should not be taken against him in accordance with Chapter 6 of the Defendant/Respondent’s Staff Manual. The Plaintiff/Appellant delivered his reply to the said query and thereafter by a letter dated 6/9/99 he was invited to appear before the Central Disciplinary Committee of the Defendant/Respondent which was to commence sitting from 8th to 14th September, 1999. By another letter dated 15/9/99 the Appellant was again invited to appear before the same Committee on the 20/9/99 to further defend himself which he did. At the end of its deliberation on the Plaintiff/Appellant’s case, the Central Disciplinary Committee recommended that he be demoted to the grade of Manager and retired from the Bank.
However by another letter dated 26/10/99, the Plaintiff/Appellant was again invited to appear before an “Inter-departmental Committee” set up to review the report of the Central Disciplinary Committee. Some time in February, 2000 the Plaintiff/Appellant said he was informed by his brother in-law that the Bank had pasted a letter on a notice board of the Bank’s Senior Staff Quarters dated 1/2/2000 dismissing him from the services of the Defendant/Respondent.
The Plaintiff/Appellant alleged that he was never served with a copy of the said letter.
The Plaintiff/Appellant instituted an action at the lower Court on the 16/5/2001, claiming in his amended Statement of Claim dated 29/10/2003 as follows:
”a. A declaration that the purported Summary Suspension and the subsequent Dismissal of the Plaintiff from the services of the defendant vide letter Ref. PER/SRO/SUSP/VOL.2/252 of 18/8/99 and PER/3 SRO/OrSM/CF.1530/Vol.1/98 dated 1st February, 2000 respectively is irregular, wrongful and/or unlawful, unconstitutional, null, void and of no effect whatsoever
b. An order setting aside the letter of suspension as well as the letter of dismissal aforesaid.
c. A further order directing the defendant to pay the Plaintiff all his salaries and allowances beginning from the date of his suspension up to his date of retirement which is 7/6/2002 and thereafter to compute and pay him a/l his retirement benefits.
The Defendant/Respondent in its further amended Statement of defence and Counter claim dated 4th March 2004 stated as follows:
“18. WHEREOF the Defendant Counter-claims against the Plaintiff as follows:
(a) AN ORDER directing the Plaintiff to vacate the Defendant’s Flat No. 61, Block C11, Central Bank of Nigeria Senior Staff Quarters, Garki II Abuja within three (3) days from the date of Judgment;
(b) Payment of the sum of N41,666.67 (forty-one thousand, six hundred and sixty-six Naira, Sixty-seven Kobo) per month For use and occupation of Flat No. 61, Block C11, Central Bank of Nigeria Senior Staff Quarters, Garki II Abuja from 1st February 2000 till date of Judgment and thereafter until he vacate the said premises.
The Plaintiff/Appellant alone testified and tendered some documents to establish his claim against the Defendant/Respondent.
The Defendant/Respondent called one witness and with the consent of both parties some documents were tendered and admitted as exhibits after the Plaintiff/Appellant had closed his case.
The trial Court delivered its Judgment on 28th June, 2004, dismissing the claim of the Plaintiff/Appellant and affirming the Counter-claim of the Defendant/Respondent in part.
Being dissatisfied with the decision of the trial Court, the appellant filed an appeal to this Court.
The Appellant formulated three issues for the determination in this Appeal. They are:
“1. Whether the appellant proved his case and he is entitled to Judgment.
- Whether the learned Trial Judge was right to have held that there was no irregularity in the procedure adopted by the Respondent and that the setting up of the Inter departmental Administrative Committee was in order.
- Whether the learned Trial Judge was right in holding that the dismissal of the Appellant by the Respondent in the circumstance is justified and in order.
The Respondent on its part formulated a single issue which reads:
“Whether the lower Court was right in its finding that the Appellant’s dismissal was in accordance with his conditions of service with the Respondent?”
An examination of the issues formulated by the Appellant will reveal that Issue 3 is broad enough to accommodate Issues 1 and 2.
Issue 3 is also very similar in content with the only issue formulated by the Respondent.
The issue formulated by the Respondent seems better couched and adopt same for the determination of this Appeal.
The Appellant presented a unified argument for all the issues he formulated, which have now been crystallized into a single issue.
Learned Counsel for the Appellant Mr. O. B. James submitted that the learned trial Judge was wrong when he held that there was no irregularity in the procedure adopted by the Respondent and that the setting up of the Interdepartmental Administrative Committee was in order. Learned Counsel contended that the learned trial Judge was also wrong when he held that the dismissal of the Appellant by the Respondent was justified and that the Appellant failed to prove his case against the Respondent.
Learned Counsel for the Appellant contended that from the pleadings as well as the evidence adduced before the Court it is clear that the appellant’s employment with the respondent was governed by the Staff Manual which is Exhibit “1”. Chapter 6 of Exhibit 1 deals with staff discipline.
Learned Counsel submitted that once a matter is referred to the Central Disciplinary Committee by the Management of the Respondent, that committee has a final say on such matter. He argued that this has been made clear by paragraph 10(1) of the said Exhibit which contains the words “…which shall have the power to adjudicate on any matter…”
On the definition of the word “adjudicate, H learned Counsel referred the Court to Black’s Law Dictionary Sixth Edition at page 42.
Learned Counsel for the Appellant argued that it is settled law that where the terms of a written contract of service such as in the instant case as shown in Exhibit ‘1’ are clear and unambiguous, the parties are bound by those terms and they cannot move out of them in search for more favourable terms. He referred to the case of CBN v. Archibong (2001) 10 NWLR Pt.721 page 492 at 507.
Learned Counsel for the Appellant argued that looking at the entire Chapter 6 of Exhibit 1, the Staff Manual, there is no provision relating to the establishment of an Interdepartmental committee. Learned Counsel referred the Court to page 128 Jines26-27 of the Record of Appeal and the case of Katto v. CON (1999) 69 LRCN page 1119 at 1139.
Learned Counsel for the Appellant submitted that the dismissal of the appellant by the Respondent on the basis of Exhibit ‘J1’ which is the report of the Inter-Departmental Committee is null and void and that the learned trial Judge was wrong in holding that the procedure adopted by the Respondent was irregular. He submitted that it is the duty of a Court to interpret the terms of a written contract and not to re-write same. He referred the Court to the case of Afrotec v. MIA (2000) 82 LRCN page 3459 at 3512.
Learned Counsel further submitted that for the learned trial Judge to have held as he did that ‘The power of discipline is in the hand of the management so, the setting up of Interdepartmental committee to review the findings of the central Disciplinary Committee of the Respondent does not detract from the terms of the contract binding the parties,’ when the only defence witness said under cross-examination that there was no provision for such Committee in Chapter 6 of Exhibit 1, amounted to rewriting the agreement between the parties.
He urged the Court to hold that the Appellant has proved his case and that the parties are bound by the report of the Central Disciplinary Committee which is Exhibit J.
Learned Counsel for the Appellant urged the Court to allow this Appeal, set aside the decision of the lower Court and in its place enter Judgment in favour of the Appellant as per his claim before the lower Court.
Learned Counsel for the Respondent submitted that the learned trial Judge, rightly in his view, came to the conclusion that the Respondent could not be faulted in the determination of the Appellant’s appointment and that there was no breach of procedure in the way and manner the Appellant was dismissed nor did the setting up of the Interdepartmental Committee detract from the terms of the contract between the parties.
Learned Counsel further submitted that the Court in construing the relationship between the Appellant and the Respondent must confine itself to the main words and meaning which can be derived from the provisions in Exhibit 1. He referred the Court to the cases of:
Friday Abalogu v. SPDC Ltd. (2003) 13 NWLR Pt. 837 page 308 at 333;
Union Bank of Nigeria Ltd. v. Prof. Ozigi (1994) 3 NWLR Pt. 333 page 385 at 403;
Bookshop House v. Stanley Consultants (1986) 3 NWLR Pt.26 page 87 at 93;
Dantata v. Dantata (2002) 4 NWLR Pt.756 page 144 at 162.
Learned Counsel referred the Court to Chapter 6, paragraph 4 of Exhibit 1 and maintained that the Respondent has the discretion to appoint a committee of its choice to look into such a matter and it is not restricted to the Central Disciplinary Committee. He contended that at every stage the Appellant was given adequate opportunity to defend himself. Learned counsel maintained that the Respondent did not go outside Exhibit 1 in determining the appellant’s appointment and neither can the Appellant now be heard to complain that he was not given a fair hearing. He argued that all that was done was in accordance with the terms and conditions of his service.
Learned Counsel for the Respondent submitted that the finding of the learned trial Judge is unassailable particularly as the evidence before the Court shows that the Appellant was not only confronted with the allegations made against him but was at every occasion also given the opportunity to defend himself both orally and in writing.
Learned Counsel argued that the submission of the Appellant that the Central Disciplinary Committee had the power “to determine finally” any matter referred to it by the management of the Respondent and that the said committee “has a final say on such matters” is misconceived. He maintained that the Appellant had conceded, at paragraph 4.04 of his Brief that what the central Disciplinary Committee could do was make a ”recommendation.”
On the definition of the word ‘Recommendation; learned Counsel referred the Court to Chambers Dictionary New Edition 1998 and submitted that the definition falls in line with the finding of the trial Judge. Learned Counsel maintained that whatsoever the recommendation of any of the committees of the Respondent, the Management still has the final say in the matter.
Learned Counsel submitted on this point that it is trite that this Court will not allow the Appellant to blow hot and cold or to approbate and reprobate. He contended that the Appellant cannot in one breath say that the said Central Disciplinary Committee has the final say and in another -breath say that the same Central Disciplinary Committee makes recommendations to the Management, who in essence therefore has the final say. He submitted that it is improper and unacceptable to approbate and reprobate. He cited in support of his contention the cases of Ajide v. Kelani (1985) 3 NWLR pt. 12 248 at 269;
Mobile Production Nig. Ltd. v. Monokpo (2002) 3 NWLR pt.753 page 48 at 88.
Learned Counsel for the Respondent argued that the Appellant had relied on the evidence of defence witness to buttress his point that there was no provision in Chapter 6 of Exhibit 1 relating to the establishment of an Inter-departmental Committee. He submitted that that testimony is of no consequence and cannot be relied upon by the Appellant in the face of the provisions of Exhibit 1. Learned Counsel referred the Court to the case of Katto v. CBN (1999) 5 SC.Pt. II page 21 at 26 and maintained that what is required of the Appellant is to prove his case.
Learned Counsel for the Respondent submitted that it is trite that when an employee complains that his employment has been wrongfully determined, he has the onus first to place before the Court the terms of the contract of employment and secondly to prove in what manner the said terms have been breached by his employer. He referred the Court on this point to the cases of Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 3 SC 140 at 145;
Amodu v. Amode (1990) 5 NWLLR pt.150) page 356 at 370.
Learned Counsel submitted that the Appellant in the instant case failed to show that his appointment was terminated other than in accordance with the requisite terms and conditions of Service. Learned Counsel maintained – that the case of the Appellant before the Court showed that he was afforded full opportunity of fair hearing by the Respondent before it dispensed with his service.
Learned Counsel for the Respondent urged the Court to resolve this issue in the positive. He further urged this Court to uphold the decision of the trial Court that the dismissal of the Appellant by the Respondent was done in accordance with the Rules and conditions binding the parties and to dismiss the Appeal with costs.
It is not in dispute that the relationship between the Appellant and the Respondent is that of a contract of Employment regulated by the provisions in the Staff Manual for Central Bank of Nigeria, Exhibit 1.
The introduction to Exhibit 1 reads:
“This Staff Manual incorporates important aspects of the current policies, rules, regulations and practices of the Bank as well as the rights, privileges, benefits, entitlements and obligations of Staff members. The Management of the Bank, however reserves the right to review the provisions of the Manual from time to time and to incorporate any new policies, rules, regulations, practices, rights, privileges, benefits entitlements or obligations as well as amendments or variations to the existing provisions as may be deemed necessary for the efficient performance of the Bank’s duties.
It is therefore in the interest of all staff members including new employees to acquaint themselves with the content of the Manual.”
(Underlining mine)
Exhibit 1 from this introduction is said to incorporate the right, privileges, benefits, entitlements and obligations of Staff members. It is therefore necessary to look at the provisions contained in the Staff Manual- Exhibit 1, to ascertain the terms and conditions of the contract between the parties to this Appeal.
In construing the relationship between the Appellant and the Respondent under the contract, this Court must confine itself to the plain words and meaning to be derived from the provisions contained in the Staff Manual Exhibit 1.
In the case of Afrotec v. Mia (2000) 82 LRCN page 3459 at 3512, the Supreme Court per Iguh J.S.C. said as follows:
“The Law is long settled that in interpreting the provisions of a written contract, no addition thereto or, subtraction therefrom is permissible. The words used must be given effect to and no word should be proved in the interpretation of the intention of the parties, otherwise the court will be seen as re-writing the agreement between the parties. See Bookshop House Ltd. v. Stanley Consultant Ltd. (1986) NWLR Pt.26 page 87 at 97.”
I had earlier stated in this Judgment that the relationship between the Appellant and the Respondent is that of a contract of Employment.
In CBN v. Archibong (2001) 10 NWLR Pt. 721 page 492 at 507 it has been stated that:
“In a written contract of service/ the provisions are binding on the parties thereto and it is outside the powers of the Court to look any where else for the terms with regard to the termination of the contract other than in the written agreement. [Kalla v. CBN (1996) 6 NWLR pt. 607 page 390; Western Nigeria Development Corporation Ltd. v. Abimbola (1966) 1 All NLR 139 referred to)”
The crux of the Appellant’s Appeal is that the Inter-departmental committee that took a second look at the ‘allegation against him and the punishment meted to him are in violation bf the terms and conditions of employment with the Respondent as contained in Chapter 6 of the Staff Manual – Exhibit 1.
Chapter 6 of the Staff Manual provides adequately for all levels of discipline.
This chapter is titled “STAFF DISCIPLINE” and it provides in regard to cases of dismissal thus:
“Disciplinary proceedings may be initiated against erring staff in respect of the charges and in the manner prescribed in this chapter.
- the Bank may summarily dismiss, without any entitlement any staff member who:
(a) Is convicted of a criminal offence, except conviction for traffic offence;
(b) Is guilty of stealing, fraud, forgery, corruption or any other grave misconduct;
(c) Is absent from duty without permission for one month
(d) Is caught for or admits to perpetrating any criminal offences (Underlining mine)
The Appellant was dismissed from the service of the Respondent for Grave Misconduct. Exhibit “J.7″ is the letter of dismissal and it is hereby reproduced thus:
CENTRAL BANK OF NIGERIA
Garki – Abuja
Private mail Bag 0187: CABLES: CENBANK
TELEPHONE……………………………………….
February 1, 2000
Ref: PERSISRO/DISMICF-1530/VOL.1/98
Mr. A. R. Momoh (Id. No. 1287),
Senior Manager,
Via: Director,
Security Services Department,
Central Bank of Nigeria,
Abuja.
Dear Sir,
DISMISSAL FROM THE BANK’S SERVICE
I write to inform you that you have been DISMISSED, from the Bank’s service with immediate effect for GRAVE MISCONDUCT.
Your indebtedness to the Bank, if any, shall be computed and communicated to you in due course.
In the meantime, you are required to hand over all the Banks property in your possession including the staff identity and clinic cards to the Director, Security Services Department, Central Bank of Nigeria Abuja.
In addition to the above and in accordance with Chapter 7(iii) of the Central Bank of Nigeria Staff Manual, you are hereby directed to vacate your official quarters immediately, if you occupy any, and hand over the keys to the Director, security services Department, CBN, Abuja before you leave.
Please note that as a result of your dismissal, you will no longer be allowed to enter the Banks premises without official permission.
Kindly acknowledge the receipt of this letter by signing and returning the attached duplicate to Staff Relations Office.
Yours faithfully,
(SGD)
Assistant Director,
Staff Relations Office,
for: Director of Personnel
cc: Senior Manager,
Salaries & Wages Office,
CBN-Abuja.
Above for your information and necessary action. Please stop the salary of Mr. A.R. Momoh (Id. No. 1287), Senior manager, with immediate effect.
(SGD)
Assistant Director,
Staff Relations Office,
for: Director of Personnel.”
The grouse of the Appellant is that the Respondent did not give effect to the recommendation of the Central Disciplinary Committee made to it that the Appellant be demoted from the rank of a Senior Manager to that of a Manager and be retired, instead the Respondent set up an Interdepartmental Committee to review the report and make recommendations.
The Inter-departmental committee recommended that the Appellant be dismissed and the said recommendation was accepted by the Respondent.
Paragraph 10(c) of Chapter 6 of the Staff Manual Exhibit 1 provides for the establishment of the Respondent’s Central Disciplinary Committee and it reads as follows:
“There shall be a Central Disciplinary Committee which shall have the power to adjudicate on any matter affecting staff discipline that may be returned to it by management.”
It has been argued that the power to adjudicate conferred on the Central Disciplinary Committee makes its findings and recommendations to have a finality.
The word ‘Adjudicate’ is defined in Black’s Law Dictionary Sixth Edition at page 42 inter alia thus:
“To settle in the exercise of judicial authority.”
The Central Disciplinary Committee is an investigating or a fact finding body whose duty is to make findings and recommendations to the management. The Central Disciplinary Committee not being a Court of Law has no judicial authority or powers to determine issues with finality. The said Committee from a careful reading of paragraph 10(c) of Chapter 6 of Exhibit 1, has no powers to discipline any erring staff of the Respondent. The power to discipline is in the hands of the Management.
Paragraph 8 of Chapter 6 of Exhibit 1 provides that the Respondent reserves the discretion either to re-instate a staff member on suspension or to commit it to dismissal or termination/retirement.
Under the title PREAMBLE item 1.0 at pages 1 – 2 of Exhibit J1 the report of the Inter-departmental committee reads inter alia:
“The issue which formed the fulcrum of the work of the Inter-departmental Committee set up by the Management to review the CDC Report, included non-ascertainment of contractors who benefited from the supply of diesel, during the period under review, non-ascertainment of the directors of the companies patronized by the Administration Department failure to ascertain the unit cost of diesel, etc.”
The setting up of the Inter-departmental committee to review the findings of the Central Disciplinary Committee does not contradict or detract from the terms of the contract binding the parties and I so hold.
Paragraph 14 of Chapter 6 of the Staff Manual Exhibit 1 has made adequate provision to ensure fairness in the procedure to be adopted by the various disciplinary committees including the inter-departmental committee which reviewed the report of the Central Disciplinary Committee on the Appellant. It reads as follows:
“In all cases, the procedure of a disciplinary committee shall allow the staff member against whom an allegation is made to defend himself. He shall be issued with a query, setting out in clear terms the nature of the allegation against him/her and be requested to answer the query within a stipulated time. Subsequently, he/she shall be given the facility to call his/her witness, or provide documents, if any, and also cross examine opposing witnesses. The suspect shall, however, not use any of these facilities to delay the proceedings unreasonably. Failure to answer the query within a stipulated time may be deemed to mean admission of guilt.”
In cases of this nature where an employee complains to the court of his dismissal on grounds of misconduct what the court is expected to look out for first is whether the dismissal was in accordance with the terms of the employment and secondly whether the principles of audi alteram patem which imposes a duty upon the employer to act fairly has been observed. Acting fairly in this circumstance entails the employer giving the employee an opportunity to explain himself before taking any decision which would affect his proprietary right. In the case of University of Calabar v. Essien (1996) 10 NWLR Pt.447 page 225 at 262, Iguh JSC said:
“Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer needs establish to justify his action is to show that the allegation was disclosed to the employee that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation.
In Olatubosun v. Nigerian Institute for Social and Economic Research (1988) 3 NWLR Pt. 80 page 25 at 52 Oputa, JSC asserted:
“The right to fair hearing arises where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension in such a case it is equally vitally important that the appellant is afforded ample opportunity to defend himself.
In Yusuf v. Union Bank of Nigeria (1996) 39 LRCN 1139 at 1154 Wali JSC stated that before an employer can dispense with the services of his employee under the common law he needs to afford the employee an opportunity of being heard before exercising his power of summary dismissal.
In Akumechiel v. Benue Cement Co. Ltd. (1997) 1 NWLR pt.454 page 695 at 703 Muntaka-coomassie, JCA held that where an employer removes an employee for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct.
I have carefully read the content of Exhibit J1 and I am satisfied that the Appellant was provided opportunity to attend the Inter-departmental committee set up by the Respondent and was also given an opportunity to defend himself. The Appellant had not complained of any irregularity in the procedure adopted at the hearing before the inter-departmental committee or that his right to fair hearing has been violated.
In the present case since the Appellant has complained that his employment has been wrongfully determined he has the onus first to place before the court the terms of the contract of employment and secondly to prove in what manner the said terms have been breached by his employer.
In the case of Katto v. CBN (1999) 5 S.C.N.J. page 1 at D.12 the Supreme Court per Uwaifo J.S.C. held as follows:
“It is the law that when an employee complains that his employment has been wrongfully terminated he has the onus, first, to place before the court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employees. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these…………………..
………………
As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof.”
In Amadu v. Amade (1990) 5 NWLR Pt. 150 page 356 the Supreme Court per Agbaje, J.S.C. observed at page 370:
“…it appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.”
See: Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 3 SC140 at 145.
Iwuchukwu v. Nwizu (1994) 7 NWLR Pt.357 page 379 at 412.
The Appellant has not proved either at the trial court or before this Court how the setting up of the inter-departmental committee to have a second look at the report of the Central Disciplinary Committee has breached the terms of the contract contained in the Staff Manual Exhibit 1. I am of the opinion that the setting up of the inter-departmental committee was proper and has not violated any provisions of the Staff Manual Exhibit 1 and I so hold.
The Appellant has not also presented anything adverse either at the trial court or before this Court to vitiate the findings of the Interdepartmental Committee.
From the facts contained in the record of Appeal, the Respondent was very meticulous in the process of dismissing the Appellant. All the steps taken were in accordance with the procedure laid down under paragraph 14 of Chapter 6 of Exhibit 1, which has earlier been reproduced in this judgment.
It has not been disclosed anywhere in the Record of Appeal that the Appellant ever denied the allegations that he committed an act of Grave misconduct which has led to his dismissal. I am of the opinion that the dismissal of the Appellant by Respondent is justified and I so hold. The Appellant has not provided any useful reason why the decision of the trial court should be set aside. This appeal lacks merit and it is hereby dismissed. The decision of the trial Court is hereby affirmed. No costs shall be awarded.
Other Citations: (2007)LCN/2260(CA)
