Alhaji Abdullahi Baba V. Nigerian Civil Aviation Training Centre (1986)
LawGlobal-Hub Lead Judgment Report
UMARU MAIDAMA, J.C.A.
This is an appeal by the plaintiff against the decision of the Kaduna State High Court, dismissing the plaintiff’s claim in its entirety. The action was commenced with a writ of summons dated 9th February, 1982, which was endorsed as follows:-
“The plaintiff’s claim against the defendant is for the sum of ten thousand Naira (N10,000) for special and general damages for wrongful termination of the appointment by the defendant.”
After pleadings have been ordered and filed, the plaintiff brought an application for leave to join Alhaji Yahaya Bamidali (Principal, Nigerian Civil Aviation Training Centre) as co-defendant. After leave had been granted, the plaintiff was allowed to amend the particulars of his claim to reflect the joinder. As a result, the defendants were also allowed by the trial court to amend their statement of defence. The reliefs sought by the plaintiff in his amended statement of claim read thus:-
(1) A declaration that the letter of termination from the 1st defendant dated 27th of October 1981 and issued by the authority of the 2nd defendant at Zaria under the of one LB. Lawal for the 2nd defendant is wrongful, void and of no effect what-soever in that the said letter and the decision to terminate the plaintiff are (a) ultra vires (b) capricious (c) malafide and (d) an abuse of power.
(2) A declaration that the letter of termination dated 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 still holds a permanent pensionable appointment as Security Officer on Grade Level 07 and an order that the plaintiff is entitled to the following benefits with effect from 27th October 1981. That is to say:-
(i) Salary at going rate for Grade level 07 i.e. two hundred and thirty six Naira (236.00) per month from November 1981 to November, 1984, amounting to eight thousand, seven hundred and thirty two Naira (8732.00)
(ii) Leave allowance for three years at one hundred and sixty Naira (N160.00) per annum, amounting to N480.00)
(iii) Salary at going rate for Grade Level 07 i.e. 236.00 from November 1984 until judgment is delivered.
At the trial only the plaintiff gave evidence and called one witness. The defendants did not adduce any evidence but rested their case on that of the plaintiff. The case of the plaintiff was that the defendants by their letter.
Exhibit A dated 4th December 1979, offered him an appointment as an Assistant Security Officer on salary Grade Level 06. The letter of offer. Exhibit A reads:-
“Our Ref. C.SAF.2.2/APDC/JS/A/Vol.1II/238 4th Dec 1979
Alhaji Abdullahi Baba
c/o Miss E. R. Matankari,
Division of Agric. College,
Ahmadu Bello University,
P.M.B.1082,
Zaria.
Dear Sir,
OFFER OF APPOINTMENT: Assistant Security Officer I refer to to your application for employment and to the subsequent test and interview you attended on 22nd October, 1979.
I am pleased to inform you that your application has been successful.
You are hereby offered appointment as Assistant Security Officer on Salary Grade Level 06, and you will commence on the 6th step of that level (i.e. N2622) 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 of your appointment by giving you one month salary in lieu of notice. You are also free to terminate your appointment with the Training Centre at any time by giving one month notice or by paying 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.
Yours faithfully,
(SGD) I. B. Lawal
for: Principal
cc: Senior Accountant
Internal Auditor
PF.”
The plaintiff accepted the offer and resumed duty on the 4th of December 1979. In less than two years after assumption of office, the plaintiff was promoted to the post of Acting Security Officer and Security Officer respectively, in appreciation of his services. These promotions were conveyed to him by the defendants through their letters, Exhibits B and B1, dated 19th of June 1980 and 9th July 1981 respectively.
Exhibit B which was signed on behalf of the acting Administrative Secretary by one D.R.O. Okonufua read thus:-
“Office of the Administrative Secretary
Our Ref. C.S.AF.8.1/APDC/JS/P/371
To: Alhaji Abdullahi Baba
From: Administrative Secretary
Subject: PROMOTION – Ag. Security Officer 19/6/80
I am pleased to inform you that the Principal has approved your promotion to the post of Ag. Security Officer with 100% acting allowance.
The promotion takes effect from 1st June, 1980, when you will advance to the 1st step of salary Grade Level 07 i.e. N2832 per annum.
Please accept my congratulations on your promotion.
(SGD) D.R.O. Okonufua
for: Ag. Admin. Secretary”
The second letter Exhibit B1, in which the plaintiff was notified on his promotion to Security Officer on Grade Level 07 read:”
NIGERIAN CIVIL A VIATION TRAINING CENTRE
Zaria AERODROME: P.M.B. 1031 Zaria Tel. Zaria 2021-7
Cables: VARSITAIR ZARIA Telex 75246
Our Ref.: CPF. 824/Vo/.I/14 9th July, 1981
Alhaji Abdullahi Baba,
Security Unit,
N.C.A.T.C.,
Zaria.
Dear Sir,
PROMOTION: Security Officer
The ⢠Junior Staff Appointments, Promotion and Disciplinary Committee met on 26th February, 1981 to consider among other things, your promotion.
1am pleased to inform you that considering the Committee’s and Divisional Police Officer’s recommendations, subsequent your interview with him (D.P.O.), on 30th April, 1981 the Principal approved your promotion to the substantive Rank of Security Officer.
The promotion takes effect from 1st March, 1981 when you will advance from 7th step of Grade Level 06 to the initial of Salary Grade Level 07 (i.e. N2832 per annum). You will now retain 1st March as your incremental date.
It is however hoped that you will continue to show leadership, maturity and vigilance, in the discharge of your duties to justify your promotion.
Please accept my congratulation on your promotion.
Yours faithfully,
(SGD) J.S. Roberts
for: PRINCIPAL”
This was the position held by the plaintiff prior to his termination from the employment of the defendants.
On the 10th of September, 1981, a panel of investigation under the chairmanship of Alhaji H.O. Afinni, Chief Commercial Instructor with the 1st defendant, was set up to investigate and examine the causes of the recent wave of burglary in the premises of the 1st defendant.
Item 6 of its terms of reference reads:-
“To investigate the complaints of the Security Guards against the Assistant Security Officer with reference to the petition signed by 30 of them and make recommendations.”
At the invitation of the panel the plaintiff submitted his memorandum exhibit D and gave oral evidence. It was in Exhibit D that the plaintiff first complained that he was not served with the copy of the petition to know the nature of the complaint against him. He then complained to the Court that he was not allowed by the panel to cross-examine his accusers when he gave evidence. However, at the end of its assignment, the panel submitted its report Exhibit F to the defendants. Part of its recommendations was that the plaintiff should be seriously reprimanded and asked to improve in the performance of his duties within six months, otherwise his appointment should be terminated.
From all indications, this recommendation did not find favour with the defendant who, instead used some of the allegations made against the plaintiff to draft charges against the plaintiff and asked him to submit in writing his representations if any as to why his probationary appointment should not be terminated. On the 19th October, the plaintiff submitted his representations refuting all the allegations made against him, but on 26th October he was served with a letter Exhibit H terminating his appointment.
The letter terminating his appointment reads:
“NIGERIAN CIVIL AVIATION TRAINING CENTRE
Ref: CPF. 824/Vol.I/23 27th October, 1981
TO: Alhaji Abdullahi Baba,
FROM: Administrative Secretary
SUBJECT: TERMINATION OF APPOINTMENT
I am directed to inform you that the Principal after due consideration of the Report of Afinni Panel and your subsequent representation approved the termination of your probationary appointment in accordance with Staff Regulation 3.6.(2) with immediate effect.
You would be paid one month’s salary in lieu of notice and you should surrender to the undersigned all Training Centre properties in your possession.
You should surrender your motor vehicle or indicate how you intend to liquidate the outstanding balance of your motor vehicle loan.
You should vacate your present quarters within 7 days from the date of this letter.
(SGD) I. B. LAWAL”
On receipt of this letter, plaintiff commenced proceedings seeking the reliefs which I have earlier stated.
As the defendants did not call any evidence both counsel representing the parties addressed the Court; their address centred mainly around the validity of Exhibit H.
In a reserved judgment, which was delivered on the 9th of May, 1985, the learned trial Judge Chigbue, J. refused to grant the declarations sought by the plaintiff and dismissed his claim. This is an appeal against the decision.
In appealing to this court, the plaintiff, hereinafter the appellant, filed the following five grounds of appeal along with his notice of appeal:-
- The learned trial Judge misdirected himself on the evidence when he held in his judgment as follows:-
“… on my own part, I hold that the basis of the contract of service between the parties is regulated by exhibit “A” which contains the terms and conditions of service…”
The learned trial Judge erred in law in holding that the entire proceedings before the Afinni Commission of Inquiry was not vitiated by the fact that the plaintiff was not allowed to see or know his accuser or listen to their allegation or even cross-examine them.
- The learned trial Judge erred in law and misdirected himself on the evidence before him when he held in the following passages of his judgment. To wit:-
“… the next canvassed by the plaintiff is that the dismissal of the plaintiff was contrary to the staff regulation in that there was no good cause for it. I further disagree with that proposition. It is trite law that an employer need not allege or state any specific act or misconduct… ”
- The learned trial Judge erred in law by refusing to uphold plaintiffs counsel’s submission on the point that special circumstances existed from the facts of the case to warrant a reinstatement of plaintiff to his former employment with 1st defendant.
- The judgment is against the weight of evidence.
The gist of the appellant’s complaint against the decision of the High Court, as contained in the above grounds is that he was denied a fair hearing; that the rules governing his conditions of service were not followed and that his termination from the employment of the defendant is null and void, and of no effect.
Starting his argument with ground 2, Mr. J.B. Daudu learned counsel for the appellant attacked the finding of the learned trial Judge that the proceedings of Afinni Commission of Inquiry was not vitiated by the fact that the Appellant was not allowed to see or know his accusers or listen to the allegation or even cross-examined them. He supported his submissions by referring to a number of cases both foreign and local, all of which had laid down the principle that no person shall be condemned without giving him a reasonable opportunity of defending himself. Prominent among these cases is the case of Kanda v. Government of the Federation of Malaya (1962) A.C. 322 wherein Lord Denning at page 337 of the judgment of House of Lords said thus:-
“If the right to be heard is to be a real right which is worth knowing it must carry with it a right for the accused man the opportunity to know the case which is made against him. He must know what evidence has been given and what statement have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”
Learned counsel for the Appellant submitted that since there was breach of the rules of natural justice, the whole proceedings leading to the appellant’s termination is null and void and of no effect whatsoever. Other cases relied upon by the learned counsel in his submission include the cases of Ridge v. Baldwin (1963) 2 ALL E.R. 66 in which it was held that the decision of the watch committee to dismiss the appellant his Chief Constable was null and void because he was not given adequate opportunity to present his defence. Stephen Adedeji v. The Police Service Commission (1968) NMLR 102 at page 107-108; Board of Education v. Rice (1911) A.C. 179 and Ceylon University v. Fernando (1960) 1 WLR 223 are some of the cases cited by the learned counsel.
Responding Mr. Aluko-Olokun learned counsel for the respondent drew our attention to Chapter 3 Clause 3.14(b) of the Staff Regulations which empowers the Board or the Principal as the case may be, to terminate the appointment of an officer on probation without any formalities subject to the disciplinary rules laid down in Chapter 5 of these regulations. Chapter 5.3., specifies the types of disciplinary measures which the Board or the Principal may impose on the staff, both senior and junior. Paragraph (a) (i) shows that termination has been included as one of such measures. At page 17 of the regulations chapter 5 Clause 3.9 the procedure for termination in accordance with rules 3. 14(b) says that –
“No officer shall be served with notice of termination of appointment in accordance with rules 3.14 above only if-
(i) he has been informed in writing on the grounds in which he is being considered for termination
(ii) the Board or Principal as the case may be has considered officers representation, and the recommendations of the appropriate head of school or section or of the APDC.”
Learned counsel drew our attention to the power of the Board or the Principal to give an officer who is concerned for termination one month’s notice or three months’ notice (for senior staff) or paid one month salary or three months salary (for senior staff) in lieu of notice. Counsel submitted that while the latter rules out the application of the rules of natural justice the former rules are in conformity with the principles of natural justice. In his submission, learned counsel distinguished between the case of Shitta-Bey v. Federal Civil Service Commission (1981) 1 S.C. 40 with the present case and finally asked this court to dismiss the appeal on this ground.
The issue for determination is whether in the circumstances of this case the appellant is entitled to fair hearing within the context of S.33(1) (4) of the Constitution of the Federal Republic of Nigeria. S.33(1) provides:-
“In the determination of his civil rights and applications, 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 the court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(4) Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn be entitled to a fair hearing with a reasonable time by the court or tribunal.”
What amounts to a fair hearing depends on the circumstances of each case, but the real test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done. The burden is on the appellant to show that the irregularity of the conduct of the trial complained of led to a failure of justice -Isiaku Mohammed v. Kano N.A. (1968) 1 ALL NLR 424. The submission of the learned counsel is that the appellant was not given a reasonable opportunity of defending himself because he was not allowed to see or know his accusers or cross-examine them. This submission in my view, ignored the fact that the appellant was informed by the Chairman of the panel Mr. Afinni the purpose of inquiry and invited the appellant to submit a memorandum. There was evidence that the appellant submitted his memorandum and gave oral evidence. There was no evidence as to what happened when he appeared before the panel, whether he asked the panel to allow him cross-examine each and everyone of his accusers and this was denied or not. There was also evidence that after completing his assignment, the panel gave the appellant a copy of his report where he saw the recommendations concerning himself.
In my view, he was aware, all along of the nature of the allegations made against him. Besides the defendants wrote to the appellant conveying to him the allegations against him, asking him to explain in writing why his appointment should not be terminated. On the strength of this the appellant submitted his representation which the defendants considered and rejected. The learned author of de-Smith’s Judicial Review of Administrative Action 4th Edition had this to say at page 214 to 215:
“Refusal to permit cross-examination of witnesses at an administrative hearing will usually be a denial of natural justice. Seldom can such a refusal be justified if a witness has testified orally and a party requests leave to confront and cross-examine him – the fact that the proceedings may be inquisitorial and informal is inconclusive – but there may exceptionally be valid grounds for disallowing questions to a witness on a particular matter. If a party to proceedings claims that he has been denied natural justice because the non-appearance of a witness has made it impossible to cross-examine him, an attack on the validity of the proceedings may seem to have a still firmer foundation but may well prove to be abortive. A tribunal may be entitled to base its decision on hearsay, written depositions or medical reports. In these circumstances a person aggrieved will normally be unable to insist on oral testimony by the original source of the information, provided that he has had a genuine opportunity to controvert that information.
Again, deprivation of the opportunity to test evidence by cross-examination is not a violation of natural justice if the tribunal can and does decide merely on the strength of an inspection or oral or written submissions supplemented by its own local or specialised knowledge; or if the proceedings before an investigating body are only for the purpose of collecting information; or if the evidence relates to questions of policy rather than to the facts in issue.”
As I have already pointed out the appellant in this case was given reasonable opportunity of defending himself (see the cases of Kanda v. Government of Malaya (1962) A.C. 322; Ridge v. Baldwin (1963) 2 ALL E.R.; Adedeji v. Police Service Commission (1968) NMLR 102 which was cited by the learned counsel for the appellant were not on all fours with those of the present case but the cases are similar to the case of Dr. Akinade Ori Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51. This ground fails and it is hereby dismissed.
The next ground argued by the learned counsel for the appellant is ground 1 in which he attacked the judgment of the trial court for holding that exhibit A is the basis of the contract of service between the appellant and the defendant. The terms of the contract in Exhibit D read as follows:-
“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. N2622) from the date you assume duty in the Training Centre,”
“You will from the date you assume duty serve probationary period of 2 years. The Training Centre reserve the right to terminate your appointment with the Training Centre at any time by giving one month’s notice or by paying one month’s salary in lieu of notice.”
It should be noted that there is a clear distinction between the contract of appointment itself and the conditions of service, while the former is a legal document governing the relationship between the employer and the employee, the latter contains the conditions regulation, the performance of the obligations under the contract. The Condition of service cannot by itself be a ground of litigation but it is designed primarily to support the contractual obligations created by the parties themselves. In the present case Exhibit A was complimented by Exhibit J which regulates the manner in which the contract in Exhibit A is to be performed. Although, Exhibit J was enacted pursuant to the Nigerian Civil Aviation Act No. 31 of 1984 yet.
exhibit A is not ultra vires the first defendant. The next question therefore, is whether the 2nd defendant requires any formality before terminating the appellant’s appointment. As I have seen from exhibit A each side can terminate the agreement by giving one month’s notice to the other or pay one month’s salary in lieu of notice. It was contended however, by the learned counsel for the appellant, that the termination can only be in accordance with chapter 3.6(d) of the regulations which provides:-
“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.”
Learned counsel submitted that there is inconsistency between the powers of the Board under Exhibit A and its powers under Exhibit J; therefore the procedure in Exhibit J which is a statutory enactment takes precedence over exhibit A. In support of this view he relied on the case of Olaniyan v. University of Lagos (1985) 2 NWLR p.9 page 667, particularly where Karibi- Whyte JSC said:-
“It is however accepted that whereas it is an exception to have express terms about dismissal in the ordinary case of master and servant, it is the normal thing in public institutions to have the grounds of dismissal of employees laid down by statute or statutory instruments or in the statutes of a University. In each case the liability of the master, to determine the employment of his servant depends upon the construction of the particular statute, or statutory instrument. It is important to recognise the distinction between a contract of personal service and a contract of service.
There is also the distinction between a contract of service at common law, and a contract with statutory flavour. Whereas at common law a contract of personal service is determinable by the master on reasonable notice or on the notice stipulated in the contract of the parties. A strict compliance with the statutory requirements for determination is required in contracts re-enforced by statute or created by statute.”
The facts of this case clearly showed that the appellant was on probation, even though he was promoted to the post of a security officer, he was not yet confirmed. In that case the rules governing his termination can either be under Chapter 3.6(d) or under 3.14(b) of the Staff Regulations which empower the Board or the Principal to terminate the appointment of an officer who is on probation subject to the provisions of chapter 5.3.9. Learned counsel for the appellant submitted that good cause must be shown; which was not shown in this particular case; the appellant should therefore be reinstated.
I do not entirely agree with the learned trial Judge’s findings that Exhibit A was the only basis upon which the agreement between the parties is founded. Evidence showed that after Exhibit A had been written to the appellant he accepted the offer and assumed duty. He was subsequently given a copy of the Staff Regulations Exhibit J which was pleaded by both parties. This goes to show that Exhibit A is subject to the conditions of service.
This brings me to the next question argued under ground 3 which is whether there is evidence of good cause of terminating the appointment of the appellant. Learned trial Judge, found that an employer need not allege or state any specific act of misconduct on the part of the employee before dismissing him. This may be correct where it is shown that there is no regulation regulating the conditions of service. But where this is specifically provided good cause must be shown to exist. In the case in hand there was good cause for terminating the appointment of the appellant because he was informed of the various allegations against him and he made representations refuting the allegations. His representations were considered and rejected. I cannot find any merit on this ground. Both grounds 1 and 3 therefore fails.
The next grounds argued by the learned counsel for the appellant are grounds 4 and 5, which were argued together. The issue raised was whether there exist special circumstances for re-instating the appellant, I have earlier in this judgment found that the termination of the appellant was in accordance with the terms of the contract and the Staff Regulations which governed the procedure for performance of the contract. I do not consider it necessary to discuss the issue of reinstatement in ground 4. The argument of the teamed counsel under this ground has no merit.
As for ground 5, which is the omnibus &round, I can only conclude that the judgment of the learned trial Judge is not against the weight of evidence.
The appeal on both grounds 4 and 5 therefore fails.
In the circumstances, this appeal fails in toto and is hereby dismissed with N250.00 costs in favour of the respondent.
Other Citations: (1986) LCN/0024(CA)
