Alexander C. Nze V. The Nigerian Ports Authority (1997)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
This is an appeal by the appellant against the judgment of Ichoku, J. (as he then was) in Suit No. PHC/474/86. The appellant as plaintiff in the lower court had claimed a declaration that his dismissal by the respondent was wrongful, illegal and void and also N100,000.00 as general damages for wrongful dismissal. Pleadings were ordered filed and exchanged. The parties amended their pleadings a number of times in the course of the proceedings. See pages 18-24, 27-33 and 36-43 of the record of proceedings. The case then proceeded to trial. At the trial the appellant gave evidence for himself while one Mr. A. Egerton – a staff of the respondent testified for the respondent. After reviewing the evidence adduced by both parties, the learned trial Judge, in a reserved judgment dismissed in toto the claim of the appellant. He held inter alia that the claim was statute barred. The plaintiff was dissatisfied with the decision of the court below and consequently appealed to this court on a number of grounds. The original Notice of Appeal contains two grounds. With the leave of this court the plaintiff as appellant amended his grounds of appeal by adding six more grounds, thus making a total of eight grounds of appeal.
They read without their particulars as follows:-
“(1) Misdirection in Law:
The learned trial Judge misdirected himself in law and whereby came to a wrong conclusion when he held that the plaintiff/appellant did not prove that his dismissal letter was written on 29th May, 1986 but backdated to 29th May, 1985 with the intention of making his action statute barred as pleaded in his Statement of Claim.
(2) The judgment is against the weight of evidence.
(3) Error in Law:
The learned trial Judge erred in law when he held that plaintiff/appellant was given fair hearing before his purported dismissal by the defendant/respondent.
(4) Error in Law:
The learned trial Judge erred in law when he held that the appellant was rightly dismissed by the respondent.
(5) Misdirection in Law:
The learned trial Judge misdirected himself in law when he held thus:
“The plaintiff no doubts exhibited lack of respect, and indiscipline when he wrote petition against his superior without first clearing and also his conduct was bad in that he did not obey instructions and also relating to the sale of Port passes his conduct was not commendable.”
(6) Error in Law:
The learned trial Judge erred in law when he proceeded to give judgment in the case without properly evaluating the evidence adduced before him and also without considering the submissions of counsel on the crucial issues raised in the case.
(7) Misdirection in Law:
The learned trial Judge misdirected himself in law when he held that the Writ of Summons in this case was served in Port Harcourt and not in Lagos, contrary to section 98 of the Ports Act as amended by the Ports (Amendment) Act 1961.
(8) Error in Law:
The learned trial Judge erred in law in failing to enter judgment for the plaintiff when the action was not properly contested by the respondent.”
The facts of this case are simple and straight forward. The plaintiff/appellant was employed by the respondent on the 6th of December, 1971 and rose to a permanent post in the respondent’s employment on an annual salary of N608.00 with effect from 1st December, 1972. The appellant who was employed in Lagos was at the time of his dismissal engaged in the respondent’s Onne Port where the respondent normally does business.
The respondent by letter dated 22nd October, 1984 – Exhibit ‘E’ queried the appellant for defrauding the respondent. Exhibit ‘E’ alleged that the appellant issued Port passes to a lorry with Registration No. IM 9682 AE for N5.00 instead of N8.00. In his reply (Exhibit ‘F’) the appellant stated that he did not issue any Port Pass as the Port passes in issue were issued by one Mr. Bestman, a subordinate of the appellant. Again, the respondent gave the appellant another query admitted in evidence as Exhibit ‘G’ in which the appellant was indicted for writing a petition against one Mr. E. E. Odiong the Acting Port Manager of the respondent for the latter’s involvement in illegal bunkering. It was alleged that the appellant did not follow respondent’s regulations in addressing such petitions. The appellant replied to the petition. However, the respondent in a letter signed by one Mr. G.A. Adeagbo suspended the appellant from duty for gross indiscipline and for the gross manipulation of records of accounts and placed him on half salary. The suspension was subsequently converted to suspension without pay. Pursuant to the allegations in Exhibit ‘E’ the respondent set up a panel which tried the appellant for the said manipulations of accounts and records amongst others. The panel heard evidence and the proceedings of the panel was admitted in evidence as Exhibit ‘M’.
The respondent by a letter dated 29th May, 1986 dismissed the appellant from service. Both parties filed their respective briefs of argument. Based on the grounds of appeal filed, the appellant formulated the following seven issues for determination in this appeal:-
“1. Whether the trial Judge was right in law when he held that the appellant did not prove that his dismissal letter was written on 29th May, 1986 but back-dated to 29th May, 1985,and that the appellant’s action was statute barred, when the respondent admitted that fact in its further Amended Statement of Defence.
- Whether the trial Judge was right when he held that appellant was given fair hearing in the proceedings leading to his purported dismissal by the respondent.
- Whether the trial Judge was right when he held that the appellant was rightly dismissed by the respondent.
- Whether the decision of the trial Judge in this case was right having regard to the facts and circumstances of the case especially the state of the pleadings, evidence on record and submissions of counsel.
- Whether having regard to the provisions of section 101 of the Ports Act Cap. 155 (now section 114 of the Ports Act Cap. 361, Laws of the Federation of Nigeria 1990), the respondent was validly represented in this action.
- Whether the provisions of Exhibit “Q” being appellant’s conditions of service was complied with by the respondent in proceedings leading to appellant’s dismissal.
- Whether the trial Judge was right in holding that the Writ of Summons was served in Port Harcourt and not Lagos, when there was no credible evidence from the respondents in proof of their averment that they were served in Port Harcourt and not in Lagos.
The respondent raised the following three issues for determination. They read:-
“(1) Was the learned trial Judge right when he held that the plaintiff was given a fair hearing before he was dismissed by the defendant?
(2) Was the learned trial Judge right when he held that the plaintiff was rightly dismissed by the defendant?
(3) Was the Management Disciplinary Tribunal competent to investigate the allegations which gave rise to the plaintiff’s dismissal?”
On issue No. 1 in appellant’s brief it was submitted that the respondent admitted in its pleadings that appellant’s letter of dismissal was back-dated, and that being so, no issue was joined between the parties on that point in their pleadings requiring the appellant to lead evidence in proof thereof. I consider issue No. 1 in appellant’s brief to be very important and germane. Unfortunately the respondent did not formulate a corresponding issue in the respondent’s brief. That being so, I should take a close look at the pleadings of the parties on this important issue. The respondent in paragraph 5(e)(iii) of the Further Amended Statement of Defence pleaded thus:-
“…….. As a result of the findings and recommendation of the Tribunal the letter of dismissal Ref. RP/DP/CON/D.3/688 dated 29th May, 1986 was addressed to the plaintiff. The Tribunal’s report captioned “Report of Management Disciplinary Tribunal held in the Director’s Office between 15th June, 1985 and 27th June, 1985 will be founded upon at the trial.” (See page 40 lines 4-11 of the record).
In answer to paragraph 10 of the Amended Statement of Claim which alleged that the appellant’s dismissal letter was written sometime in May, 1986 but was maliciously back dated to May, 1985 in an attempt to make appellant’s action statute barred, see pages 21-22 of the record), the respondent in paragraph 8 of the Further Amended Statement of Defence pleaded thus:-
“In answer to paragraph 10 of the plaintiff’s Amended Statement of Claim, the defendant will at the trial contend that:
(b) Having regard to all the facts and circumstances of the plaintiff’s dismissal, the date of the letter of dismissal addressed to him is irrelevant.”
(See page 41 lines 26-28 of the record).
I have no iota of doubt in my mind that the above averments by the respondent had admitted appellant’s averment that his dismissal was back-dated from 29th May, 1986 to 29th May, 1985 and therefore appellant had no burden to tender the envelope of the letter in proof of his pleading. The law is settled that what is admitted need no further proof. (See section 75 of the Evidence Act Cap. 112 of the Laws of the Federation of Nigeria 1990. See also Okparaeke v. Egbuonu (1941) 7 WACA 53 at 55; Lawal Owosho v. Adebowale Dada (1984) 7 S.C. 149 at 163 – 164; Akintola v. Solano (1986) 4 S.C. 141 at 154, 169 and 181-182; (1986) 2 NWLR (Pt.24) 598; Solano v. Olusanya & Ors. (1975) 6 S.C. 55 at 62. It should be noted also that the appellant in his oral evidence at page 96 lines 20-22 of the record, stated that he was dismissed on the 29th May, 1986. The respondent did not challenge this piece of evidence during cross-examination or at all. It is my view that the appellant uncontroverted evidence on this point ought to have been accepted by the trial court. It must be remembered that it is settled law that the court must accept as admitted and proved any unchallenged and uncontroverted piece of evidence. See Oguma Associated Co. (Nig.) Ltd. v. I.B.W.A. (1988) 3 SCNJ 13; (1988) 1 NWLR (Pt.73) 658; Mohammed v. Ali (1989) 2 NWLR (Pt.103) 349 at 363.
Thus, in the case in hand, the respondent having admitted that appellant was dismissed by a letter dated 29th May, 1986, the date of appellant’s dismissal was no longer an issue at the trial court and this action cannot be said to be statute barred as stipulated in section 110(1) of Ports Act Cap. 361 of the Laws of the Federation of Nigeria, 1990. Furthermore, if appellant was dismissed based on findings and recommendations of Tribunal which sat between 15th June, 1985 and 27th June, 1985, it will be preposterous to hold that the letter dated 29th May, 1985 was not back dated. Having said that, I have no hesitation in resolving the first issue for determination in favour of the appellant.
Issues Nos. 2, 3 and 4 in the appellant’s brief are more or less the same thing and I therefore intend to deal with them together. It is the contention of the appellant that he was not given a fair hearing before he was dismissed. It was submitted that the appellant was not present when certain witnesses for example, one Mr. Duke testified in the disciplinary panel (from which Exhibit “M” resulted) against the appellant. That one Mr. E. E. Odiong testified before the panel behind the appellant’s back and appellant had no opportunity of knowing what Mr. Odiong said against him. Reference was made to page 62 lines 25 to 28 of the record. It was also submitted that Mr. E. E. Odiong was the same officer who queried the appellant and accused him of the allegations which became the basis of dismissing the appellant. Reference was made to Exhibit ‘E’ – a query of 22nd October, 1984 at page 112 of the record. It is the contention of the appellant that in view of these uncontroverted pieces of evidence the learned trial Judge’s finding or judgment that the appellant was given a fair hearing is wrong in law. It was also submitted that the respondent is a statutory body created by statute, that is, the Ports Act Cap. 136 Laws of the Federation (now Cap. 361 Laws of the Federation of Nigeria 1990) and therefore the appellant is a public servant, whose appointment with the respondent has statutory flavour. It was contended that although the appellant is a statutory servant the learned trial Judge treated his case as though the appellant was an employee in a pure master/servant contract.
It was submitted that the learned trial Judge did not evaluate the entire evidence before him as the lower court simply ignored the evidence of the appellant (PW1) and highlighted the aspects of the evidence of D.W.1 in so far as they supported the case of the respondent. Reference was made to the evidence of P.W.1 and DW.1 at pages 59-66 and 74-84 of the record.
Issues Nos. 1 and 2 in the respondent’s brief fall within the purview of Issues Nos. 2, 3 and 4 in the appellant’s brief. I shall therefore treat issues Nos. 1 and 2 in the respondent’s brief together. It was submitted for the respondent that the appellant was given a fair hearing by the Management Disciplinary Committee. It was contended that it is not in every case that a party is entitled to cross-examine every person who gives evidence that may affect him and to give oral evidence himself. It was submitted that section 33(1) of the 1979 Constitution does not apply to the situation of the case of the appellant. It was contended that the Management Disciplinary Tribunal in the case of the appellant was not established by any law but established by the Director, Eastern Ports, and its functions was not to determine the civil right and obligations of the appellant but to investigate and make findings on the allegations made against the appellant. Reliance was placed on the case of Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre Zaria and Anor. (1991) 5 NWLR (Pt. 192) 388 and a number of foreign cases. It is the contention of the respondent that the appellant no doubt exhibited lack of respect and indiscipline when he wrote a petition against his superior without clearance and his conduct was also bad in that he did not obey instructions relating to the sale of the Port passes. It was submitted that the offences for which the appellant was dismissed attract such a penalty under the conditions of service in Exhibit “Q” which was binding on the parties and therefore, the appellant was rightly dismissed by the respondent. It is manifest from the record of proceedings that the appellant was not present when Mr. Duke and some witnesses testified in the disciplinary panel from which Exhibit “M” emanated against the appellant. Mr. E. E. Odiong testified before the panel behind the appellant’s back and the appellant had no opportunity of knowing what Mr. Odiong said against him. At page 62 lines 25-31 of the record the appellant as plaintiff testified as follows:-
“When Mr. Odiong testified against me I was not in the panel. They did not send his evidence against me for my comment. The panel concluded the sitting according to what they said. The panel wrote a report and a copy of the report was sent to me. This is the report sent to me by the panel.”
At page 63 lines 1-4 the appellant testified thus:-
“I was not in the panel when one Mr. Duke testified against me. They did not send the evidence of anyone in the panel when I was not there for me to comment.”
It should be noted that Mr. E. E. Odiong was the same officer who queried the appellant and accused him of the allegations which became the basis for dismissing the appellant. (See Exhibit “E” a query of22nd October, 1984 at page 112 of the record. I make bold to say that in view of these uncontrovened pieces of evidence, the findings of the learned trial Judge that the appellant was given a fair hearing is wrong in law. I hold a strong view that the recommendation in Exhibit “M” that the appellant be dismissed ought to have been ignored since Exhibit “M” was produced in total violation of the appellant’s right to fair hearing as enshrined in section 33(1) of the 1979 Constitution. As the appellant was not present when the disciplinary panel heard the above evidence against him, it goes without saying that he did not know the full case that was made against him to engender his defence.
It must be said also that the right of fair hearing in its full plenitude must carry with it the right to know the case and evidence profferred against the other party. See Edward Aiyetan v. NIFOR (1987) 6 S.C. 73; (1987) 3 NWLR (Pt.59) 48; Stephen Adedeji v. Police Service Commission (1968) NMLR 102. Besides, the fact that Exhibit “M” was based on comments of Mr. E.E. Odiong who leveled the allegations pressed against the appellant is in itself evidence of bias by the respondent. It should be noted that at page 2 of Exhibit “M” it is specifically stated that the authors of Exhibit “M” based their decision to recommend the dismissal of the appellant on the comments of Mr. E.E. Odiong amongst other things. Thus Mr. Odiong clearly acted both as the accused and a co-Judge. It should be noted also that the appellant was not given the opportunity to correct or contradict the said comments of Mr. Odiong.
It should be mentioned that fair hearing under section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended) encompasses the principles of natural justice. See Garba v. University of Maiduguri (1986) 2 S.C. 128: (1986) 1 NWLR (Pt.18) 550; Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 7 S.C. 178: (1985) 2 NWLR (Pt.7) 300; Federal Civil Service Commission v. J. O. Laaye (1989) 2 NWLR (Pt. 106) 652. Furthermore, it is a cardinal principle of the rule of natural justice, that is, audi alteram partem that evidence should not be given behind the back of an accused person and he should be given full opportunity to listen to what is being said against him and to react to it See Dr. Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306: Garba v. University of Maiduguri supra. From the foregoing, I have no doubt in my mind that the respondent breached the rule of natural justice and the provisions of section 33(1) of the Constitution of the Federal Republic of Nigeria in the investigation of the alleged wrong doing the appellant was accused of by the respondent.
In concomitant with what I have said above is the fact that the respondent cannot do anything beyond what has been clearly specified in Exhibit “Q” that is, the terms and conditions of service of the respondent. On going through chapter 12 of Exhibit “Q”, it is manifest that the respondent did not adhere to the provisions laid down for the dismissal of an established staff occupying a pensionable appointment applicable to the appellant hence his dismissal which was based on the report of the Tribunal – Exhibit “M” is invalid null and void because the Tribunal was appointed by the Director Eastern Port (see the evidence of D.W.1 at page 77 lines 31-32 of the record) instead of by the chairman as clearly specified by chapter 12 of Exhibit “Q”. The Supreme Court held inter alia in Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599 at 623 that “a corporation which is created by or under statute (as is the case with the respondent) cannot do anything at all unless authorized expressly or impliedly by the statute or instruments defining its powers”. Since there was no sufficient evidence from the record before the learned trial Judge that the Tribunal that tried the appellant was established as required by the rules in Exhibit “Q” it goes without saying therefore that the dismissal of the appellant based on the report of the Tribunal inevitably has to be declared invalid null and void. Since I have come to this conclusion, it seems to me that a consideration of other issues formulated in this appeal by the parties would amount to a waste of more papers, academic exercise and surplusage.
In the result, this appeal succeeds and the judgment of the court below dated 22/10/90 is set aside. However this is not and should not be the end of the matter. The appellant in paragraph 11(ii) of the Amended Statement of Claim (see pages 18-23 of the record) claimed N100,000.00 general damages for wrongful dismissal. After a thorough perusal of the record of proceedings and the exhibits tendered, one cannot say categorically that the appellant was absolutely innocent. The respondent only bungled the disciplinary procedure they should have taken against him. It should be noted that the relationship between a master and his servant or an employer and his employee is a contractual one and it is governed by the terms and the conditions of the contract between them. In the case in hand, it is Exhibit “Q”. Exhibit “Q” is the Nigerian Ports Authority Conditions of Service of Established and Unestablished Staff applicable at the time of the dismissal of the applicant.
Chapter 12(a) of Exhibit “Q” reads:-
“The Authority may determine the engagement of staff by giving him one month’s notice for established staff, two weeks’ notice for monthly paid unestablished staff, and one week’s notice for daily paid staff, or salary in lieu of notice thereof. Such staff will be entitled to (a) leave earned (if any), (b) free transport facilities as provided under chapter 7 para. 11(d) and 8 and (c) the benefit laid down in the rules of superannuation fund if eligible.”
It is manifest from Exhibit “D” dated 10th January, 1973 that the appellant was an established staff on a salary of ?304 per annum which was converted to N608.00 per annum. Thus the appellant is not entitled to any claim from his employer which is not stipulated in the terms of his contract with his employer. See Western Nigeria Development Corporation v. Abimbola (1966) 1 All NLR 159; Nigerian Marketing Board v. Adewunmi (1972) 11 S.C. 111; (1972) N. COMM.LR 451. The measure of damages for wrongful termination of employment or wrongful dismissal is the amount equivalent to the period of notice that the affected person ought to be given as stipulated by the contract which in the instant case, is one month’s salary. See chapter 12(a) of Exhibit “Q” reproduced above. See also the case of Nigerian Marketing Board v. Adewunmi (supra). I therefore award one month’s salary in lieu of notice as damages to the appellant. This award is without prejudice to any other entitlement due to him as stipulated in chapter 12(a) of Exhibit “Q”. The appellant is entitled to his costs which I assess at N2,000.00 against the respondent.
Other Citations: (1997)LCN/0261(CA)
