Alhaji Abdullahi Baba V. Nigerian Civil Aviation & Anor (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by Alhaji Abdullahi Baba who was the plaintiff in this suit in a Kaduna High Court presided over by Chigbue, J. (as he then was). The plaintiffs claim as amended by his amended statement of claim was as follows:

“1. A declaration that the letter of termination from the 1st defendant dated 27th October, 1981 and issued by the authority of the 2nd defendant at Zaria under the hand of one Lawal for the 2nd defendant is wrongful, void and of no effect whatsoever in that the said letter and the decision to terminate the plaintiff was:

(a) ultra vires

(b) capricious

(c) mala fide, and

(d) an abuse of power.

2. A declaration that the letter of termination dated the 27th of October, 1981 issued by the authority of the 2nd defendant is contrary to the Staff Regulation of the 1st defendant and therefore null and void.,
3. A declaration that the plaintiff holds and is still holding a permanent pensionable appointment as security officer on salary Grade Level 07 in the employment of the 1st defendant, and IN THE ALTERNATIVE.
4. A declaration and or order that the plaintiff is entitled to the following benefits with effect from the 27th October, 1981 to November, 1984. That is to say:

(I) Salary at the going rate for Grade Level 07 i.e. N236.00 per month from November, 1981 amounting to N8,732.00.

(II) Leave allowance for 3 years from 1981-1984 at N160.00 per annum amounting to N480.00

(III) Salary at the going rate for Grade Level 07 i.e. N236.00 per annum from November, 1984 until Judgment is delivered.”

The suit was initially against the 1st defendant only, but on plaintiff s application, the Principal of the Centre was later joined as a co-defendant.

The facts which led to the claim are straightforward. On the 4th of December, 1979, the plaintiff was employed as an Assistant Security Officer in the defendant’s establishment on a salary of N2,622.00 per annum. The employment was as per a letter of employment which was tendered at the hearing as Exhibit A. The defendant was a statutory corporation established by Act No. 31 of 1964. Because of the issue that will arise on Exhibit A in this appeal, I shall set it out in full. It reads:

“You are hereby offered appointment as an Assistant Security Officer on Salary Grade Level 06, and will commence on the 6th step of that level (i.e. N2,262.00) from the date you assume duty, in the training centre.

You will from the date you assume duty serve a probationary period of 2 years. The Training Centre reserves the right to terminate your appointment by giving you one month salary in lieu of notice.

Please let me know in writing and not later than 21st December, 1979 if the above offer of appointment is acceptable to you or not, and, when you intend to assume duty”

The plaintiff accepted the appointment Although by Exhibit A, the plaintiff’s employment was to be on probation for a period of two years, he was during that period promoted to the posts of Acting Security Officer and Security Officer. It does appear, that all the employees of the 1st Defendant had some written Staff Regulations, a copy of which was tendered as Exhibit “J”.

The relationship between the parties went sour when, as a result of several stealing incidents for which the 1st defendant lost a lot of valuable property, some thirty security officers who were working under the plaintiff addressed a petition to the Management of the 1st defendant in which they made certain allegations against the plaintiff. The Management of the 1st defendant decided to investigate the allegations. To that intent they set up an administrative panel of inquiry (to be hereinafter referred to as Afinni Panel or The Panel) under one Mr. Afinni. The Panel by Exh. C. informed the plaintiff of the setting up of the inquiry. According to the plaintiff the Panel commenced sitting since the 10th of September, 1981, during which they heard some witnesses but they did not invite him till the 14th of September. When he appeared, the petition of his junior colleagues was shown to him and he was told to explain the reports that the thefts were due to his inefficiency. He asked for time to state his case, and he was told to come back the following day. The following day he appeared and tendered a memorandum whereby he tried to meet the allegations. The memorandum was tendered at the hearing as Exh.D. The Panel asked him some questions. He also testified that he asked for leave to see and cross-examine his accusers but the Panel refused. Later the Panel prepared a Report. Exit. E., a copy of which they served on the plaintiff.

On the 13th of October, 1981, the plaintiff received a letter, Exh. F., asking him to make a representation why his appointment should not be terminated. He complied and wrote Exh. G. which he sent to the Secretary. On the 27th of October, 1981, he received a letter, Exh. H., stating that his representations had been rejected and terminating his appointment by offering him one month’s salary in lieu of notice. The comments on the Report by the Administrative Secretary to the Principal is Exhibit K. He commenced this action on the 9th of February, 1982.

During the trial, the plaintiff testified and called one witness, and then closed his case. The defendants did not call any evidence, but relied on the documents tendered by the plaintiff. After considering the whole evidence, the learned trial Judge dismissed the plaintiff’s case in its entirety. His appeal to the Court of Appeal, coram Maidama, J.C.A., Akpata, J.C.A. (as he then was) and Ogundere, J.C.A was dismissed.

The plaintiff (hereinafter called the appellant) has appealed further to this Court. Four grounds of appeal were filed. Arising from these grounds, the plaintiff formulated the issues for determination in the appeal in the following terms:

“ISSUES ARISING IN THE APPEAL

5.1 The main issue arising in the instant appeal is as to the issue of the observance of the rules of natural justice by the Afinni Panel.

Whether non-observance of the aforesaid rules vitiates the entire proceedings up to and including the letter of termination Exhibit “A”.

5.2 Most importantly, the deprivation by an administrative panel of a citizen’s right to know and meet his accusers, hear the oral accusation against him confront them with his own facts and particulars and finally cross-examine them as to shake their credibility and veracity calls for the determination of this honourable court as to whether the decision or findings of such an administrative panel can still stand inspite of all these irregularities.

5.3 Whether, independent of the observance of the rules of natural Justice, just cause is available for the termination of the appellant’s appointment

5.4 The issue of reinstatement arises for determination in this appeal. The pertinent question to ask is whether there exists special circumstances from the facts of the case which warrant the reinstatement of the appellant to his former office.

5.5 Finally, does the promotion of the appellant from his initial appointment put an end to his period of probation”

The respondents also formulated four issues, but they are, in substance, not materially different from the appellant’s.

In my consideration of the above issues, I wish to dispose of issues numbered 5.3, 5.4, and 5.5 briefly first. Then I shall consider together issues numbered numbers 5.1 and 5.2, which I regard as the pith and marrow of this appeal, together.

I shall deal first with whether there was sufficient cause to terminate the services of the appellant. By way of a preliminary observation, it looks to me that this is an issue which has been formulated without due regard to the terms of the contract between the parties. That parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contact are, invariably, the guide to its interpretation. On this premise, the material question is: what did the parties in this case agree with respect to termination of the contract The answer to this question depends very much on whether I hold that the letter of appointment, Exhibit ‘A’, or the Staff Regulation, Exhibit ‘J’ is the basis of their contracts, if there is any difference between them.

For a number of reasons, I agree with Maidama, J.C.A., that although the appellant accepted his employment under the letter of employment, Exh. ‘A’, the rights of the parties at the time of termination of his appointment were also governed by the Staff Regulations, Exh. ‘J’. It is true that the 1st respondent is a creature of statute, to wit: Nigerian Civil Aviation Training Centre Act, No. 31 of 1964. The Staff Regulations, Exh. ‘J’. was made pursuant section 9 of the Act. This became binding on the parties, and makes the contract between the parties not just one of master and servant but one with a statutory flavour. See on this: Olaniyan & Ors. v. University of Lagos & Anor, (1985) 2 N.W.L.R. (part 9) 599; Shitta-Bay v, Federal Public Service Commission (1981) 1 S.C.40. Although the letter of appointment, Exh. ‘A’, remains the basis for commencement of the appointment, any question such as the instant which arises on the contract will also be considered on the basis of the Staff Regulations, Exh. ‘J’. The result is that both Exhs. “A” and “J” will be read and applied together but that whether there is any inconsistency between the two, Exh, ‘J’ will prevail. Put in another way, any term in Exh. ‘A’ which is not inconsistent with a provision in Exh. ‘J’ will continue to have full force and effect. It is on these bases that I shall consider the appellant’s case.

A lot of argument was wasted in trying to show that the appellant was no longer on probation. I consider this effort quite unnecessary in the face of the following facts, namely:

(I) The letter of appointment, Exh. ‘A’ quite unequivocally states:

“You will from the date you resume duty, serve a probationary period of 2 years”.

There is nothing to the contrary in Exh. J. Clearly the proceedings before Afinni Panel, the query to the appellant, (Exh. F), and the termination of his appointment by Exh. H dated 10th September, 1981, all took place within two years of the date of appointment.

(II) Under the fire of cross-examination the appellant admitted he was still on probation as at the time of his termination.

(III) There is nothing in the Staff Regulations to show that a person promoted during the period of his probation ceases to be on probation.

(IV) Rather, it is expressly provided in paragraph 3.6(b) of the Regulations that –

“b) At the end of his probationary period, an officer shall be informed in writing whether he is considered suitable for confirmation in his appointment.”

No such written information had been given to the appellant It appears to me therefore that he was still on probation at the time of his termination. So, the relevant provision of the Regulations applicable to his case is paragraph 3.6(d) which states as follows.

“(d) The Board or the Principal as the case may be, may at any time and for any good cause terminate the appointment of an officer on probation.”

It is clear that provisions for termination in paragraphs 3.14 and 5.3.9 of the Regulations which relate to officers other than those on probation have no relevance to the appellant’s case. In a termination of the appointment of an officer on probation under paragraph 3.6 all that is necessary is that there be good cause for the termination. On the other hand, if the appellant were a confirmed staff and the termination proceeded under paragraph 3.14, the provisions of paragraph 5.3.9 would have applied. In that case in would have been necessary to show:

(i) That the appellant was guilty of misconduct or such a breach of the Regulations as to warrant a termination of his appointment;

(ii) That he had been informed in writing of the grounds on which he has been considered for termination;

(iii) That he had been given the opportunity to show cause why his appointment should not be terminated and

(iv) That the Board or Principal, as the case may be, has considered the officer’s representations and the recommendations of the appropriate bead of School or section or of the A.P.D.C. and come to the conclusions that he should be terminated.

I wish to underscore here the differences between the two provisions. In the termination of the appointment of an officer on probation no procedure is provided for and none need be followed once the Board or Principal is satisfied that there is good cause for the termination. No hearing is necessary. Good cause is not defined in the Regulations. But it appears to me that the expression includes quite a number of situations which do not carry with them any implication of misconduct or moral turpitude on the part of the employee terminated for good cause. For an example, if in the interest of the establishment, the Management decides to reduce the staff strength by terminating the appointment of some staff, any person affected is still terminated for good cause.

But in the termination of a confirmed officer, as the procedure has been laid down in paragraph 5.3.9, as shown in paragraphs (i) – (iv) above, being an employment with a statutory flavour, that procedure must be followed, otherwise the termination is invalid. Secondly, once one of the contentions is that the officer was “guilty of misconduct or of a breach of the Regulations.” then a lis inler partes arises; so, there arises the need for a bearing before deciding be was guilty. Once that is the case, there is a case of an administrative body acting judicially; the principles of fair bearing building on judicial bodies are automatically imported, though the manner of hearing will still depend on the particular circumstances. For this, see Legal Practitioners Disciplinary Tribunal v. Chief Fawehinmi (1985) 2 N.W L.R (Part 7) 300 at p.347 per Eso, J.S.C. The old division between a Judicial and quasi-Judicial tribunal on the one hand and an administrative or executive tribunal on the other has therefore given way to one between a body acting judicially and so requires a fair hearing and one acting administrative and so is only bound by the rules of natural Justice. My learned brother Eso, J.S.C. underscored these points at p.347 of the report in these words:

“It is not easy to place a tribunal in the compartments of purely administering, predominantly administering or one with Judicial or quasi-Judicial function. In my view, a purely administrative tribunal may turn judicial once it embarks on Judicial or quasi-Judicial adventure. The test to my mind should be the function the tribunal performs at a particular time. During the period of in-course into Judicial or quasi-Judicial function, an administrative body must be bound in process thereof to observe the principles that govern exercise of judicial function. “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.” See Dr. Bentley’s case in R. V. Chancellor of Cambridge University (1716) in 1 Sir. 557. In Ridge v. Baldwin (1964) A.C.40 Lord Reid was of the opinion which I share, that merely to describe a statutory function as administrative, judicial or quasi-Judicial is not by itself sufficient to settle the requirements of natural justice. This certainly leaves it open for the court to go into the substance of the very act of the tribunal rather than the form of description”.

For the avoidance of doubt, I must emphasize that the decisive questions nowadays as to whether or not a person to be affected by the result of an inquiry ought to be given the opportunity of a hearing no longer necessitates trying to find out whether or not the deciding body is judicial or quasi-Judicial on one hand or administrative or executive on the other. Nor are there objective and uniform standards of the requisite contents of hearing that are applicable in all cases.

The two questions as to whether a hearing is necessary at all and what ought to be the proper content of the hearing must depend on the nature and purpose of the inquiry. It depends so much upon the intention and expected result of the inquiry. Where the body, whether Judicial, quasi-Judicial, administrative or executive in inception, acts Judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of section 33(1) of the Constitution of 1979. That indeed is the essence of fair hearing as a constitutional right. In such cases the hearing body must be seen to have observed all the implications and attributes of fair hearing which I shall discuss later.

When a person is accused of a crime, once the hearing body is anything less than a jurisdiction body vested with criminal jurisdiction, an administrative body lacks the jurisdiction and competence to try the issue. For such a body is not a court, much less a criminal court. Only a court vested with criminal jurisdiction is competent to hear and determine such an issue. See on this: Dr. Sofekun v. Akinyemi & Ors. (1980) 5-7 S.C. 1; (1981) 2 NCLR 135; Denloye v. Medical & Dental Practioners Disciplinary Committee (1968) 1 All N.L.R. 306; Garba v. The University of Maiduguri (1986) 1 N.W L.R. (Pt 18) 550.

Where on the other hand, as in the case of Afinni Panel in this case the body is merely investigatory or exploratory and does not determine the rights or obligations of the person affected, it would be wrong to regard such a body as if it were a court wherein parties should be given the right to cross-examine all those who give evidence before such a body. We must bear in mind the fact that they are not courts and that their mode of hearing must of necessity differ from that of courts. Their duty is to act in good faith and fairly listen to both sides before deciding. The House of Lords encapsulated the guiding principle in such cases in the case of Board of Educarion v. Rice (1911) A.C.179, where Lord Loreburn stated at p.182 thus:

“Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds…. In such cases…. they act in good faith and fairly listen to both sides, for that is a duty lying on anyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial… They can obtain information in any way they think best, always giving opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”

See also Local Government Board v. Arlidge (1915) A.C. 120, pp.132-134, Spackman v. Plumstead District Board of Works (1885) 10 App. Cas.229, p.240.

The problem these days, in my view, is now no longer that of classification, as it used to be, but that of discernment – to see distinctly when and whether an administrative or domestic tribunal departs from mere administrative or executive exploratory functions and acts judicially in that it decides on the rights and obligations of the person affected. The Afinni Panel in this case was merely investigating the facts and not deciding on the fate of the appellant. And in that exploratory function the Panel received representations from the appellant, as per Exh. D.

Then to the question: did the respondents have good cause to terminate the appointment of the appellant Now, after the inquiry by the Panel, they issued a Report which they made available to the Management. The Management in turn issued a letter, Exh. F., to the appellant in which they outlined the observations of the Panel against him and asked him to make representations before they reached a decision. From what I have stated above, the appellant being still a probationary staff, was not entitled to the indulgence of asking him to make representations. As to whether respondents had good cause to terminate his appointment, it is enough to set out in full the contents of the letter of query, Exh F., dated the 13th day of October, 1981 and the gist of his reply thereto Exhibit F runs thus:

“I am directed to inform you that the Afinni Panel report which was recently submitted to the Principal enumerated the following misconduct and shortcomings on your part as the Security Officer in-charge of the Security Division;

(1) Investigations reveal that Alhaji Baba once worked with Tanimu, Musa & Bala Magaji at A.B.U. Security Section as investigators.

They were later dispensed with by A.B.U. only to regroup themselves in the Training Centre.

(2) The Panel discovered that Tanimu Musa’s application for employment to Nigerian Civil Aviation Training Centre, was in Alhaji Baba’s handwriting and he confirmed this to the Panel.

(3) The application referred to above was found to contain false information. While Tanimu Musa claims to have served three (3) years at A.B.U. Alhaji Baba wrote six and half (6 1/2)years. While

Tanimu Musa claimed to have served as a labourer at a Medical Baba Y. N.C.A.T.C. Store in Jos, Alhaji Baba wrote that Tanimu was a Security Officer. Finally, investigation revealed that Tanimu did not resign his appointment with the said Medical Stores in Jos before: taking up appointment with Nigerian Civil Aviation Training Centre.

(4) The time and manner Alhaji Baba left his former employment (i.e.-ABU) was not known.

(5) Alhaji Baba specifically told his men at one of their regular meetings that three Security Guards, Tanimu Musa, Bala Magaji and Unusa Mohammad Zaria know thieves in and around Zaria and are capable or recovering stolen goods in case of any theft in the Training Centre.

(6) Alhaji Baba’s negligence of duly is so pronounced as evidenced from his non-challant towards reports of frequent burglary cases made to him without any investigation.

(7) Alhaji Baba is inefficient in his duty as evidenced from the following reasons:

(a) With the existing number of Security Guards at his disposal, only one Security Guard is put on patrol in Site I and only two in Site II, this is shown in his duty roster.

This behaviour definitely leads to thieves operating frequently and conveniently without any resistance.

(b) The fact that guards are not readily available when required for assistance by victims proves that his organization is inefficient.

(c) Investigations revealed that all the houses he sometimes patrols are usually burgled shortly after his visit.

(d) The fact that occupants of boy’s quarters are normally checked at odd hours of the night without the knowledge of the occupants of the quarters leaves much to be desired and leads to suspicion.

(e) The alarming rate of burglary and stealing especially in Site II where he too resides is as a result of his incompetence to cope with the situation, lack of good management organization and indiscipline in his working area.

(f) Complete loss of confidence in himself and his Section has led to parking his personal vehicle in the Estate Maintenance Yard every night instead of his house.

(g) It was gathered also that since his assumption of duty in the Training Centre, less than two years ago, there have been more than twenty reported cases of burglary and stealing. It even got so bad that sometimes two to three cases of theft were reported in one night.

In view of the above findings you are requested to submit in writing any representations if any as to why your probationary appointment should not be terminated.

You should also confine yourself to office working during the day only until required to perform any other duties.

You should not engage in any night patrol of the Centre’s premises or the housing areas until further notice.(Sgd)

I. B. Lawal,

Administrative Secretary

He made his response in his memorandum, Exh. G., dated 19th October, 1981. In that reply,

(i) He admitted that Tanimu Musa and Bala Magaji were with him at A.B.U.;

(ii) That he wrote Tanimu Musa’s application for employment in the Centre for him;

(iii) That he wrote that Musa did 6 1/2 years instead of 3 at A.B.U, because that was what Musa told him;

(iv) That the “Civil Aviation and its residential areas cover a mass of territory, which cannot be fully covered by the present man-power at the disposal of the security section”

(v.) That there was “a rise in criminality at the Training Centre as indeed the rest of Zaria….”

(vi) So in both Exh. D and Exh. G. he admitted that ten burglaries had taken place since he took charge.

After receiving Exh. G., the respondents, without more, terminated his appointment by offering him one month’s salary in lieu of notice. To say the least, it is my view that the respondents had good cause to terminate his appointment I wish to pause here to note what an employer, such as the respondents were, is supposed to do in such a situation. Where some allegations have been made against an employee such as the appellant, the employer is entitled to set up a panel to investigate the allegations. Such an investigating panel is not a court of trial; so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source; see on this Miller v. Minister of Health (1946) K.B.626; Local Government Board v. Arlidge (1915) A.C.120; Stafford v. Minister of Health (1946) K.B.621. The panel of inquiry, not being a court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services. Where those points amount to crime, the case must be reported to the police for investigation and possible prosecution. Where, as in this case, the employee is still on probation and, according to the terms of his employment, his services could be terminated without a hearing, if the accusation against him does not amount to a crime, his services can be terminated without much ado.

I wish to make one further observation about the thrust of the argument on behalf of the appellant. Learned counsel his behalf in his argument, appears to have confused the expression “for good cause” with “for good cause shown”. This confusion led him to argue that as the termination of the appellant’s employment was predicated on Afinni Panel Report, which according to him, was vitiated by want of fair hearing, the decision to terminate had no leg to stand upon. He relied for this proposition on Macfuy v. UA.C. (1962) A.C.l52, p.16O; Alhaji Bello v. Diocesan Synod of Lagos (1973) 1 All N.L.R. (Part 1) 247, p. 277, and Skenconsult (Nig.) Ltd., v. Ukey (1981) 1 S.C.6,

True, if the Afinni Report were vitiated by want of hearing, if there should be one, the general proposition of law would be correct; but, as I shall show later, it was not so vitiated. In any case, it is necessary to point out that the expression “for good cause” does not mean exactly the same thing or carry the same implications as “for good cause shown” In my view, “for good cause” in this con simply means for good reasons – to the satisfaction of respondent. When the decision must be made “for good cause show”, it means for good cause shown on the evidence before the court or tribunal. See Timmins v. Timmins (1919) P.75 Underwood v. Underwood (1946) P.84. This by its nature imports the need for some sat of hearing in order to find out whether “good cause” has been show”. The issue of whether or not it has been shown must be tried. But when the requirement is simply “for good cause” it simply means for good or reasonable grounds. As it is so, it follows that the respondents were entitled to look at the whole circumstances and come to the conclusion, as they did, and be satisfied that there were good grounds for terminating the appellant If their decision is challenged, the main issue would be whether the grounds for the termination were reasonable not whether there was a hearing. The point is brought home clearly by the decision of the Privy Council in Nakkuda Ali v. Jayartne (1951) A.C.66. The Controller of iles in Ceylon had cancelled a ile dealer’s licence pursuant to a power vested in him to revoke a licence when he had reasonable grounds for believing its holder to be unfit to continue as a dealer. The dealer took out a certiorari contending that the Controller had not instituted any inquiry to ascertain if there were reasonable grounds, and that his action was a denial of natural Justice. The Judicial Committee held that although the Controller was obliged to act on reasonable grounds, be was under no duty to act judicially, so that certiorari could not issue and compliance with natural justice was unnecessary. This feature distinguishes this case from that of Prince Yahaya Adigun & Ors. v. The Attorney-General of Oyo State & Ors. v. The Attorney- General of Oyo State &; Ors. (1987) 2 N.W.L.R. (Pt.56) 678, p.709, where the appellants were entitled to a hearing but were denied one.

One common feature of the two, that is “for good cause” and “for good cause shown” may be noted. It is that whether an employee is terminated “for good cause” or “for good cause shown”, the interests of the employer are paramount, the difference being that in the latter case the employee must be heard before the decision to terminate his appointment is reached. In the case of In the case of In Re Adam Tyton, Ltd. Ex Parte Charlesworth (1887) 36 Ch.D.299, a case of removal of a liquidator, Bowen, LJ., at p.306, stated:

“In order to define “due cause shown” you must look wider a field, and see what is the purpose for which the liquidator is appointed. Of course fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and due interests of the liquidation. That should be thoroughly understood, I think, as of great importance….”

The paramountcy of the interests of the employer, I believe, derives from the fact that at common law, a master, in an ordinary master and servant relationship, has always had the right to terminate his servant upon reasonable notice. So, any ground which tends to show that the employee has outlived his usefulness or that his continued employment is no longer in the interests of the job is good ground.

In the instant case, it appears to me that in order to decide whether or not the appellant was terminated “for good cause” I must have to ask myself the question: What was the purpose of his employment On his own admissions, has that fundamental purpose been threatened I am of the clear view that from the evidence tendered by the appellant himself in his reply, Exh.G., in response to the weighty issues in the letter to show cause, Exh F, he had succeeded in showing that the security of the Centre for which he was employed was in serious jeopardy. For, inspite of him and his team of over thirty security guards, there were rampant cases of burglary in the Centre, that he had been instrumental in the engagement of some of the Security Guards who had been discredited elsewhere and whose integrity and performance in the Centre had been put into serious question; that he had lost the confidence of his subordinates; that he did not believe that, as matter stood, he could improve the situation in the security of the Centre. These, I believe, were good cause for the termination of his appointment, even though the respondents did not expressly say so.

Therefore, to conclude this part of the appeal, there can be no doubt that having regard to the fact placed before the Panel include Exhs. C, D, E, F, G. and H. above, the above provisions of the Staff Regulations were fully complied with. Clearly there existed good cause for his termination. The appellant also completely destroyed his own case in his testimony under cross-examination when he testified as follows:

“My acceptance of the appointment is as a result of the offers as contained in Exhibit ‘A’. One of the terms is that the appointment should be on probation level for the first 2 years. I was terminated within the said probationary period. In Exhibit ‘A’ the 1st defendant reserved the right to terminate on condition that I was given a month’s notice or a month salary in lieu of notice.”

In Exhibit ‘H’ is an offer to pay me a month’s salary in lieu of notice but I never went to collect. But told them to deduct or utilise the said sum in offsetting the loan granted earlier to me”. (Italics mine).

So even if it is conceded, as it must he, that because the respondent is a creature of statute and the parties were bound by the Staff Regulations, Exh. J the appellant’s employment had a statutory flavour, (for which see Olaniyan v. University of Lagos(1985) 2 N.W.L.R. (Pt. 9) 599), the statute was fully complied with. This distinguishes this scase from such cases as – Shilta Bay v. Federal Civil Service Commission (1981) 1 S.C.40, p.61; also Federal Civil Service Commission v. Laoye (1989) 2 N.W .L.R. (Part 106) 652 in which the rules of the statutory body governing termination or dismissal were not complied with. So, in so far as neither the Staff Regulations, Exh. J. nor the letter of employment, Exh. A, which formed the crystalization of the contract between the parties did require that either party who wanted to terminate the contract needed to show sufficient (or indeed any) cause therefor, the question posed by the third issue as to whether in fact there was sufficient cause for the termination of the appellant’s employment does not arise.

If it arose, it must be answered in the affirmative.

As I do not think that the appellant was wrongly terminated, the question of his reinstatement is an -issue. Similarly, as the Staff Regulations clearly States it that an employee could be promoted during the period of probation, I do not see how I can infer from the fact that the appellant was promoted that automatically converted his probationary employment into a confirmed one. The appellant, from his evidence under cross-examination setout above, was clearly in no doubt that, inspite of the promotion, he was still on probation. There is nothing upon which I can base a contrary view.

I shall now deal with the two issues on breach of the right to fair hearing and observance of the rules of natural Justice. A consideration of these is still necessary because even though the respondents had good cause for the termination of his appointment, if he was entitled to fair hearing but did not have one, the termination would be set aside.

The complaint of the appellant in this respect could be summarized briefly. His main contention is that he did not have a fair hearing because be was not allowed to see or know his accusers and to confront them under cross-examination during the proceedings before Afinni Panel. This, according to him, was a breach of the appellant’s constitutional right to fair hearing guaranteed by

section 33 of the Constitution of 1979 and, in his submission vitiated the finding of the Panel in their Report, Exh. E. In so far as the said vitiated Report was the basis of the decision of the respondents to terminate his appointment, the termination was a nullity because one cannot build anything upon nothing. It will collapse. He cited: Maifoy v. UA.C. (1962) A.C.152, p.160; Bello v. Diocesan Synod of Lagos (1973) 1 All N.L.R. (Pt. 1)247; Skenconsult (Nig.) Ltd v. Ukey (1981) 1 S.C.6. The refusal of Afinni Panel to allow the appellant see and confront his accusers in cross-examinalion was also a breach of the rule of natural justice and contrary to the audi alteram partem rule, he submitted. In this respect, he submitted that, as the appellant’s evidence that he asked for permission to see his accusers and confront them in cross-examination but was denied the right was unchallenged and uncontradicted it ought to have been accepted as true on the authority of decided cases. The court below was, therefore, in error in holding that be did not ask for permission to confront them whereas the evidence on record shows that be did, and ought to have been accepted as true. If this evidence was taken into account the court below would have been bound to hold that the appellant did not have a fair hearing. In support, he cited Kanda v. Govt. of Malaya (1962) A.C.322, p.337; Adedeji v. Police Service Commission (968) N.M.L.R. 102, at pp. 107-108; Board of Education v. Rice (1911) A.C.179; Ceylon University v. Fernando (1960) 1, W.L.R, 223; Denioye v. Medical & Dental Practitioners Tribunal (1968) 1 All N.L.R. p.306. He therefore urged this Court to hold that as the whole proceeding was vitiated by the use of Afinni Report which had been tainted by breaches of the rules of fair hearing and natural justice and to set it aside and reinstate the appellant and grant him the remedies he seeks.

I think I should begin by considering the submission that the Court of Appeal ought to have found that the appellant asked for permission to see and confront his accusers, but that this was denied him. I believe it to be the law that facts on any issue in a civil case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together. Whichever outweighs the other ought to be accepted. See on this the case of A.R. Mogaji & Ors. v. Rahiatu Odofin (1978) 4 S.C.91, atpp.94-96. Based on this principle, whenever on an issue evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it So, when evidence goes one way, the onus of proof is discharged on a minimal of proof. This is the result of all the decided cases including N.I.C.ON. v. Power & Ind. Engineering Co. Ltd., (1986) 1 N.W.L.R. (Pt. 14) 1 p.27; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Nigerian Maritime Service Ltd v. Afolabi (1978) 2 S.C. 79

In the instant case, it is on record that the appellant testified as follows:

“The next day I wanted to see and cross-examine my accusers but the Chairman was not supposed (sic) to do so. After submitted Exhibit “D” to the Panel I left but before I left the Panel asked me some questions which I considered irrelevant whereas the Panel did not refer their question to Exhibit “D”.

I have already setout the whole cross-examination of the plaintiff. It was short and no reference was made to this piece of evidence. True to what appears to be emerging as a pattern in this type of cases, the defendants did not testify. The learned counsel for the appellant, Mr. Daudu, was, therefore, right when he stated that the evidence was neither challenged nor contradicted.

I must pause here to advert to the danger of the pattern which is now emerging in these “official” cases. Almost invariably, the defence does not testify. Sometimes too, they seem to care less about the need to challenge every material piece of evidence given by a plaintiff seriously in cross-examination. It is clear from the principles I have outlined above that this attitude is dangerous and ought not to be continued. I say so because it is capable of putting a court in a position where it could find against a party merely because his counsel has failed to put the full facts before the court For, where credible evidence on a material point is unchallenged and/or uncontradicted, it ought to be accepted as true whether it be given against the State, a corporate body or an individual.

It follows from what I have been saying that the piece of evidence set out above ought to have been accepted as true. It follows too, that Maidama, J.C.A., in his lead judgment in the court below was in error where he stated that it was not shown that the appellant asked for permission to cross-examine his accusers. He clearly did so. But having so held, it does not mean that I should automatically allow the appeal. For, as this Court has said several times, it is not every slip committed by the lower court that can result in the appeal being allowed. Such will be the result only where it is substantial in the sense that it has occasioned a miscarriage of justice. I shall, therefore, direct my inquiry to finding out whether such was the case here.

One obvious flaw in the above submissions on behalf of the appellant is that they seem to assume, wrongly I hold, that in every type of hearing or stage thereof, the party affected is entitled to cross-examine every person who gives evidence that may affect him and to give oral evidence himself. It is, however, necessary to note that that is not always the case. There are certainly some types of “hearing” in which the opportunity for cross-examination need not be given. The words “hearing” or “opportunity to be heard” in this respect includes both where evidence and oral submissions are tendered as well as where only written presentations are made.

A “hearing” in a judicial or quasi-judicial body has not quite the same content as one in a purely domestic or an administrative inquiry, such as the Afinni Panel in this case.

In a Judicial or quasi-Judicial body, a hearing, in order to be fair, must include the right of the person to be affected:

(i) to be present all through the proceedings and hear all the evidence against him;

(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;

(iii) to have read before him all the documents tendered in evidence at the hearing;

(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial the party, save in recognized exceptions;

(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and

(vi) to give evidence by himself, call witnesses, if he likes, and make oral submissions either personally or through a counsel of his choice.

Hence dealing with the implications of fair hearing under section 33(1) of the Constitution of 1979 in N.A.B.Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 N.W.L.R. (Part 98) 419, this Court held at p.444:

“Clearly whenever the need arises for the determination of the civil rights and obligations of every Nigerian, this provision quantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the courts to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned. See on this Mohammed v. Kano N. A. (1968) 1 All N.L.R. 424, at p.426. There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:

(i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q.B.573, at p.578;

(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this: Adigun v. Attorney-General, Oyo State & Ors. (1987)1 N.W.L.R. (Pt.53) 678.

(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and

(iv) that having regard to all the circumstances, in every material decision in the case, Justice must not only be done but must manifestly and undoubtedly be seen to have been done; R v. Sussex Justices, Exparte McCarthy (1924) 1K.B. B 256, at p.259; Deduwa & Ors. v. Okorodudu (1976) 10 S.C.329.

Thus, fair hearing in the con of section 33(1) of the Constitution of 1979 encompasses the plenitude of natural Justice in the narrow technical sense of the twin pillars of Justice – audi alteram partem and nemo judex in causa sua – as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”

I must, however, emphasize that the above requirements of fair hearing are all necessary and all the above criteria and attributes thereof need be present only where there is a determination of one ‘s civil rights and obligations as in a judicial or quasi-judicial proceeding or any other tribunal or body acting judicially. Section 33(1) of the Constitution provides:

“33-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”,

The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned counsel for the appellant, the question of fair-hearing in terms of section 33(1) of the Constitution, 1979, did not arise under the Afinni

In the Afinni Panel, the appellant was not on trial. No one was yet on trial. This is obvious from the terms of reference, Exh.C., and the Report, Exh. “E”. In such a proceeding the need for a hearing is satisfied by an opportunity to make written representations to the investigating body. Seeon this -R. v. Judge Amphlett (1915) 2 K.B.223; R. v. Housing Appeal Tribunal (1920) 3 K.B. 334; Local Government Board v. Arlidge (1915) A.C.I20. Indeed, in Miller v. Minister of Health (1946) K.B.626, it was held that at that stage, the administrative body could get information from other sources, and was not obliged to disclose it to the person to be affected by it a1!hough it might be prejudicial to his ,own case. See also Summers v. Minister of Health (1947) 1 All E.R.184. I shall refer to and agree on the point with the opinion expressed by the Privy Council per Viscount Haldane in Local Government Board v. Arlidge (1915) A.C.120, at pp.132-133 where he stated:

“In Board of Education v. Rice(1) he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duly to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on everyone who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath; and need not examine witnesses. It could, be thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the Board failed in this duty, its order might be the subject of certiorari and it must itself be the subject of mandamus” I appreciate that in this case what is being complained against is the inquiry and not an appellate decision as in Alridge’s Case (supra). But I believe that the basic principle is the same. The essential thing is that the body holding the inquiry gives a fair opportunity, which in the nature of things must depend upon the circumstances, to the person to be affected to present his own side of the case. As in this case, it must be borne in mind that the panel of inquiry is acting in an administrative capacity. It was not taking evidence on oath and so there was no question of the right to cross-examine witnesses. It would be cumbersome, against the run of authorities and deleterious to good administration to decide that for every administrative inquiry ail parties whose names get mentioned even before any serious barges are fixed on them must be given the opportunity to be beard orally or to cross-examine all those who make statements against them. I do not so hold.

As such is the position, in law, the appellant was-therefore, not entitled to cross-examine before the Panel the thirty Security Guards who petitioned against him. It follows, therefore, that the appellant cannot now rightly rely on the refusal to allow him cross-examine them to ground his complaint for denial of fair hearing or breach of the relevant rules of natural Justice. It also follows that it is not correct that the Report of the Panel was “tainted” because of lack of hearing and, therefore, a nullity upon which the decision of the respondents could not have been validly based. This case is therefore distinguishable from such cases as Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162 at p.173 in which the determination of the appellant’s employment was based on a vitiated report. I am satisfied that there was nothing wrong in the proceedings before the Afinni Panel.

The Panel gave every necessary opportunity to the appellant to know the facts of and take part in the part of inquiry that affected him. He was invited to the inquiry and given the opportunity to make a written representation which be utilized by submitting Exh. D. From the contents of the Report, Exh. E, and the part of the findings of the Panel that affected the appellant, Exb. F, they took his representations into full account .These were all that the appellant was entitled to.

I must therefore resolve the last two issues against the appellant

From all I have said above, the appeal fails and is dismissed. I award costs against the appellant assessed at N500.00.

M. BELLO, C.J.N.: I have read in advance the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. For the reasons stated therein, I also hold that` the appointment of the Appellant was lawfully terminated in accordance with the terms of his employment.

I consider it pertinent, however, to add a few words on the issue of the refusal of the Afinni Panel to allow the Appellant to cross-examine the security guards who had petitioned against him and who testified before the Panel. Learned counsel have not referred to us any decision of this Court which directly dealt with the issue relating to denying a person who may be affected by a decision of an administrative tribunal the opportunity to cross-examine witnesses who have testified before the tribunal as was done by the Afinnih Panel in this case on appeal. I have not been able to discover such decision, if there is any.

In the absence of statutory provisions, the right of cross-examination before an administrative tribunal may be an element of fair hearing and as such may fall within the principles of natural justice depending on the circumstances of each case. In R v. Newmarket Assessment Committee (1945 2 All E.R. 371 at 373 the Court of Appeal granted an order of certiorari quashing the decision of the Committee on the ground of non-observance of natural justice by the Committee in reaching its decision from the evidence of witnesses who had been heard in the absence of the affected parties and without giving the affected parties the opportunity to crossexamine the witnesses. The pit of the Applicants had been rated at N32,500 subject to confirmation by the Assessment Committee and they accepted the rate. They were informed not to attend the meeting of the Committee which increased the rating to N34000. It was held the Appellants ought to have been given an opportunity of being present and heard before the increase.

On the other hand, in Ceylon Universiry v. Ferrando (I960) 1 W.L.R.1 223 which involved disciplinary charges, it was held that a fair hearing had been given although witnesses had been heard in Fernbando’s absence and he had not been asked by the Tribunal whether he wished to recall the witnesses to confront or cross-examine them. The reasons, inter alia, for the decision was stated by Lord Jenkins in his judgment at page 235 as follows:

“But it remains to consider whether in the course they took the interviews must be held to have fallen short of the requirements of natural justice on the ground that the plaintiff was given no opportunity of questioning Miss Balasingham. She was the one essential witness against the plaintiff, and the charge in the end resolved itself into a matter of her word against his. In their Lordships’ view this might have been a more formidable objection if the plaintiff had asked to be allowed to question Miss Balasingham and his request had been refused. But he never made any such request, although he had ample time to consider his position in the period of 10 days or so between the two interviews. There is no ground for supposing that if the plaintiff had made such a request it would not have been granted. It therefore appears to their Lordships that the only complaint which could be made against the submission on this score was that they failed to volunteer the suggestion that the plaintiff might wish to question Miss Balasingham, or, in other words, to tender her unasked for cross-examination by the plaintiff. Their Lordships cannot regard this omission, or a fortiori the like omission with respect to other witnesses, as sufficient to invalidate the proceedings of the commission as failing to comply with the requirements of natural justice in the circumstances of the present case.”

In Miller Ltd v. Minister of Housing and Local Government (1968) 1 WL.R. 992 where a document was admitted in evidence at an enquiry without giving the company an opportunity to cross-examine the director who tendered the document which the inspector relied on. In dealing with the contention of counsel for the company on appeal 10the Court of Appeal, Lord Denning M.R. observed at page 995 thus:

“So the inspector relied on Mr. Fogwill’s letter. So did the Minister in his decision. Mr. Dobry said that they ought not to have relied on it at all. It ought not even to have been admitted because it was hearsay. It was not on oath, no opportunity was given to lest it by cross-examination, and it was objected to Mr. Dobry said that in these circumstances it was contrary to nalwal justice for it to be admitted.

In my opinion this point is not well founded. A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is non evidence in a court of law: see Reg. v. Deputy Industrial Injuries Commissioner, Ex. parte Moore. During this very week in Parliament we have had the second reading of the Civil Evidence Bill. It abolishes the rule against hearsay even in the ordinary courts of the Land. It allows first-hand hearsay to be admitted in civil proceedings, subject to safeguards. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it: see Board of Education v. Rice; Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore. The inspector here did that Mr. Fogwill’s letter of November 19, 1964, was put to the witnesses and they contradicted it No application was made for an adjournment to deal further with it. In these circumstances I did not see there was any thing contrary to natural justice in admitting it”.

It may be observed that in none of the aforementioned cases did the complainant applied to be given the opportunity to cross-examine the witnesses and the tribunal refused to grant the application. Consequently, they are distinguishable from the case on appeal where specific request for cross-examination was made but refused.

Tbe decision of this Court in The Queen v. Director of Audit (W.R.) (1961) N.S.C.C. 292; Adedeji v. Police Service Commission (1967) N.S.S.C. 59, (1969) N.M.L.R. 102 and Hart v. Military Governor of Rivers State (1976) N.S.C.,C. 622, (1976) 11 S.C. 211 appear to be on all fours with the decisions in England that an administrative tribunal is not bound to follow the procedure and practice of the court of law; that although it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him but also to answer it. However, he is not entitled to oral hearing unless such a hearing is expressly prescribed. The absence of oral hearing or an opportunity to be heard before an administrative tribunal does not necessarily tantamount to a denial of natural justice. Since cross-examination is an oral hearing, it follows from those decisions that its mere denial by an administrative tribunal, such as the Afinnih Panel, did not offend the principles of natural justice in the circumstances of the case. The evidence shows that the substance of the evidence of the witnesses was given to the Appellant and he commented in writing on it I am satisfied the principles of natural justice were not offended by the Afinni Panel.

Finally, I have refrained from making an excursion into the requirement of fair bearing within the purview of section 33(1) of the Constitution of 1979 because the provisions of the Constitution are inapplicable to the case on the ground that a domestic panel, such as the Afinni Panel, is not the type of tribunal contemplated by the section, which reads:

“33(1). In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such matter as to its independence and impartiality.” (Italics mine).

The tribunal envisaged by the subsection is a tribunal established by law and charged with the duty to determine the civil rights of any person. The Afinni Panel was not established by any law. It was established by the Principal of the Nigerian Civil Aviation Centre. Its function under its terms of reference was not to determine any of the civil rights or obligations of the Appellant but to investigate and make findings on the allegations made against the Appellant.

A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother P. Nnaemeka- Agu, J.S.C. in this appeal. I agree with his conclusion and his reasons for dismissing the appeal. I wish however only to make some contribution by commenting on the contention that Appellant was denied fair hearing. The complaint of the Appellant is against the Report of the Afinni Panel which investigated the allegations of wrong doing arising from the petition of thirty security men serving under him. The facts which gave rise to the setting up of the Afinni Panel are more comprehensively stated in the judgment of my learned brother P. Nnaemeka-Agu, J.S.C. I however hereby state them concisely for the purpose of this judgment.

Consequent upon frequent losses of valuable property in the premises of the Appellant’s employers, a number of security officers working under the Appellant addressed a petition to the Management of the 1st Defendant in which they made certain allegations against the Appellant. The Management of the 1st Defendant decided to investigate these allegations and for this purpose they set up an administrative panel of inquiry. By Exh. C. the panel informed Appellant of the setting up the inquiry.

According to the Appellant, the Panel commenced sitting and heard witnesses. He was shown the petition of some of his junior colleagues and was asked to explain his position with respect to allegations that thefts were due to his inefficiency.

In reaction to Exh. C, appellant submitted a memorandum, Exh. D. wherein he tried to answer the allegations made against him. The Investigating Panel asked him some questions, but rejected his application to confront his accusers and to cross-examine them, the Panel’s report Exh. E was served on the Appellant.

On the 13th October, 1981. Appellant received a letter, Exh. F., asking him to give reasons why his appointment should not be terminated. Appellant made the explanation in Exh. G, to the Secretary of the 1st Defendant. On the 27th October, 1981, by Exh. H, his representation was rejected and his appointment was terminated by offering him one month’s salary in lieu of notice. Appellant instituted this action on the 9th February, 1982.

One of the complaints of the Appellant was that he did not have fair hearing; and this was because he was not allowed to see or know his accusers; and to confront them under cross-examination during the proceedings before the Panel. This was what Appellant regarded as a breach of his constitutional right to fair hearing guaranteed by S.33(1) of the Constitution 1979. In his view this default vitiated the Afinnih Report Exh. E.

It was argued that since Exhibit E was the basis of the part on which the decision to terminate Appellant’s appointment was based, the termination based on a tainted report, was nullity. Learned Counsel to the Appellant relied on MacFoy v. U.A.C. (1962) AC.152, 160; Bello v. Diocesan Synod of Lagos (1973) 1All NLR (Pt. 1) 247; Sken Consult (Nig.) v. Ukey (1881) 1 S.C.6.

It was contended that the refusal of the Afinnih Panel to allow appellant see and confront his accusers under cross-examination was a breach of Natural Justice, and contrary to audi alteram Partem rule. Counsel therefore submitted, appellant did not have a fair hearing, and the whole proceedings was therefore vitiated. Learned Counsel relied on Kanda v. Govt. of Malaya (1962) AC.322. Adedeji v. Police Service Commission (1968) NMLR 102; Board of Education v. Rice (1911) AC. 119 Ceylon University v. Fernando (1960)1 All E.R. (Pt.1) 306. Learned Counsel to the Appellant further submitted that the Court below ought to have found that Appellant asked for and was refused permission to confront his accusers. His contention that the absence of this finding per se should result in the setting aside of the decision is clearly not consistent with the law as settled. There is no doubt that in the instant case, the court below was in error when it stated that it was not shown that appellant asked for permission to cross-examine his accusers. There is abundant evidence that he did so. In this respect the Court of Appeal was demonstrably wrong. But this is not the critical and crucial issue in this case. The issue being whether in the investigation of the allegations by the Finnih Panel, the Appellant had fair hearing.

The fatality of the denial of the right to fair hearing to the extent to which such right to hearing could be granted denied, depends upon the nature of the right at stake in the Administrative body or the tribunal before which the right to fair hearing is claimed-See N.A.B. Kotoye v. Central Bank of Nigeria (1989)1 NWLR (Pt. 98) 419.

Section 33(1) of the Constitution 1979 in which the common law concept of the rules of natural Justice is enshrined, provides as follows:-

“(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair bearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

The words of the above provision seem to me relevant and the section can only be successfully invoked only where the determination of the civil rights and obligations of the person complaining of its violation are in issue. Hence where no such determination of the civil rights and obligations of the complaint are in issue, it seems to me that the section cannot be infringed. It is therefore erroneous to assume, as Counsel has done, that the observance of the provisions of section 33(1) of the Constitution 1979 is a sine qua non to every situation involving a hearing. This is clearly not so. Learned counsel did not refer to the civil rights or obligations of the Appellant involved in the investigation by the Afinni Panel and which was to be determined by the Panel.

It is accepted that a Judicial or Quasi-Judicial body is not the same as a purely domestic or administrative tribunal set up for the investigation of complaints. For instance where the Civil Rights and obligations of persons are involved, the determination of such rights and obligations will necessitate determination of allegations. In such situations, the bearing must give opportunity to persons accused of wrong doing to be heard and to confront their accusers. On the other hand, in a purely investigative domestic or other tribunal where no one is accused of wrong doing, there seems to be no obligation to hear any particular person or afford any person the opportunity to confront persons making accusations. This has to be so because the purpose of the investigation is not directed towards the determination of any rights, since no one has been accused, and there is no litis contestatio. It is to find out and ascertain facts which do not involve determining rights of anyone.

The concept of “fair hearing” suggested by counsel in Mohammed v. Kano N.A. (1968) 1 All NLR 424 at p. 426, was approved by the Court, and has been followed ever since in our Courts. In accepting the definition, Ademola CJ.N.

“It has been suggested that a fair hearing does not mean a fair trial. We think “a fair hearing” must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether, from his observation, Justice had been done in the case. We feel obliged to agree with this.”

There is here no suggestion that “hearing” is confined and limited to oral submissions. It seems to me that it includes both oral submissions and written representations.

I conceive that in any Judicial or quasi-judicial body a bearing to be fair, must take into consideration the rights of the persons to be affected. The tribunal must give such person affected the opportunity

(i) to be present at the proceedings and hear all the evidence against him

(ii) to cross-examine or otherwise contradict witnesses who testify against his interest.

(iii) to enable him access to all documents tendered in evidence against him.

(iv) to disclose to him the nature of all relevant material, evidence, prejudicial against him within the limits of recognised policy.

(v) to know the case against him so that he will have the opportunity to prepare his defence.

(vi) to be free to give evidence in his own defence and call witnesses, make oral or written submissions either by himself or through counsel of his own choice.

The scope of the exercise of this right was stated comprehensively in the recent decision of this Court of N.A.B. Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR. (Pt. 98) 419. The Court concluded a detailed catalogue of the circumstances as follows –

“Thus, a fair hearing in the con of section 33(1) of the Constitution of 1979 encompasses the plenitude of natural Justice in the narrow technical sense of the twin pillars of Justice-audi alteram partem. and nemo Judex in causa sua – as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”

As I have already pointed out in this Judgment the essential criteria and prerequisites of fair hearing outlined need only be present where the determination of the civil rights and obligations are in issue. This is where the tribunal must reach a decision either way, in determination of the rights or obligations in issue. The situation is slightly different in a domestic tribunal.

In a domestic tribunal, such as the Afinnih Panel, which is before us, neither the Appellant, nor any other person was on trial. This is clear from the terms of reference, Exhibit C, and the Report of the Panel Exhibit E. In such a situation, the requirement for a hearing is satisfied by an opportunity to make written representations to the investigating body- See Adigun v. A-G of Oyo State (1987) 1 NWLR. (Pt. 53) 678. The Federal Supreme Court decided in Queen v Director of Audit (W.R.) & Ors (1961) All NLR 659,660; (1961) 2 SCNLR 317 that if an administrative body reaches its decision after full enquiry but without granting oral hearing to the parties it would not mean that there has been no fair hearing. The most important consideration is whether the person likely to be affected by the investigation was given an opportunity to state his case, and answering if he can any allegations which concerned him. The general view is that in an investigation by an administrative body, all those who are parties in the controversy ought to be given an opportunity to correct any lurking prejudicial statements. There is no doubt that in the instant case Appellant was afforded that opportunity.

In Local Government Board v. Arlidge (1915) AC. 120, at p.I32-133, Viscount Haldane referred to Board of Education v. Rice (1911)A.C. at p. 182, where Lord Lore Bum L.C. referred to the Board of Education and said;

“In the present instance, as in many others what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend on matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They haw: no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”

The Board of Education in this case was exercising a statutory duty to investigate the relations between the local education authority of Swansea and managers of the Oxford Street voluntary schools, technically termed, non-provided schools, it is, a case of differential salaries paid to teachers by the local education authorities within their area.

The point being emphasized in this dictum is the status of the administrative body, and its manner of operation as indicated in the sentences italized.

In the appeal before us, the Afinni Panel was a purely administrative body. It did not claim to be accusing anybody and the question of cross-examination of any witness by another even if oral evidence was taken, did not arise. It is conceded that the conduct of Appellant was an issue in the investigation. That is not the subject matter of the investigation. Surely, where the purpose of an administrative panel is to investigate a general allegation of a loss against a group of persons, it will be intolerable to subject to cross-examination every witness whose evidence touches on the activity of another member of the group, relating to the subject matter of the investigation.

In the instant case Appellant will be seeking to cross-examine the thirty security guards who have blamed him for the losses. It must be borne in mind that the terms of reference is not that Appellant has caused the losses being investigated. The investigating Afinni panel was not appointed to determine the responsibility of the Appellant for the losses – See Aiyetan v. NIFOR (1987) 3 NWLR. (Pt.59) 48. Appellant having utilised the opportunity given to him to make his representation, cannot justifiably claim to have been deprived of fair hearing in the investigation. The refusal to allow him cross-examine the witnesses in the circumstance is not a denial of fair hearing. Appellant was at no stage of the investigation on trial. Mr. Daudu for the Appellant has submitted that the Report of the Afinni Panel was “tainted” because of lack of fair hearing and therefore a nullity. Accordingly since the Respondents acted on the tainted Report, its own action, of terminating Appellant’s appointment on the analogy of Eperokun v. University of Lagos (1986) 4 NWLR (PL34) 162 at p.173 could not be valid. I have already held that Appellant was not denied fair hearing in the instant case since there was no duty on the part of the Afinni Panel to allow Appellant to cross-examine the witnesses. Eperokun v. University of Lagos (supra) is distinguishable from the instant case before us. In Eperokun case, the Appellant’s employment was determined on the basis of a vitiated report. This is not so in the case before us.

The evidence before the Court is that the Afinni Panel gave appellant every opportunity to know the facts relating to the investigation and to participate in the inquiry as a person likely to be affected by its result He was invited and made a written representation in his own defence.

It seems to me from the content of the Report of the Panel, Exhibit E, and the specific findings of the Panel, – Exhibit E indisputable, that the representations of Appellant were taken into account.

I am completely satisfied that Appellant was not denied fair hearing.

I adopt the fuller reasons in the judgment of my learned brother Nnaemeka Agu, J.S.C. for dismissing this appeal.

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SC.78/1987