Auchi Polytechnic, Auchi V. Peter N. Okuoghae (2005)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
The plaintiff’s claim as set out in the writ of summons and pleadings is as follows:-
“(i) A declaration that the dismissal of the defendant with its letter dated 8th March, 1985 is contrary to section 26 of the Auchi Polytechnic Law and therefore unconstitutional, illegal, void and of no legal effect.
(ii) A declaration that the plaintiff is still under the employment of the defendant despite the said illegal dismissal and that he is entitled to be paid the emoluments of his office as the Assistant Chief Executive Officer (Accounts) of the defendant from the date of the purported dismissal.
(iii) An injunction to restrain the defendant its servants and or agents from preventing the plaintiff from performing any of the functions and duties of his office or interfering with the enjoyment of the rights, privileges and, benefits attached to his office. In the alternative, the plaintiff claims against the defendant the sum of N10,000.00, being damages from his, said wrongful dismissal.”
Briefly, the facts, which led to the above claims are as follows:-
The plaintiff is an Assistant Chief Executive Officer Accounts in the employment of the defendant. His duty schedule included the supervision of those charged with the responsibilities of paying various sums of money collected on the defendant’s behalf into the bank.
In the course of performing his duties, it was discovered that the sum of N36,795.00 (thirty six thousand, seven hundred and ninety five naira) was not paid into the bank by the staff in the defendants’ bursary who are under the plaintiff.
The defendant issued the plaintiff a query exhibit L. The query was answered by the plaintiff. On receipt of the answer to the query exhibit K, the plaintiff was interdicted. The defendant then set up an administrative panel to look into the allegation of dereliction of duty against him. The plaintiff was invited to appear before the panel. He gave an explanation of the part he played in the whole episode.
On the completion of its duty, the panel submitted its report to the defendant. Based on the report of the panel, the plaintiff was dismissed by the defendants’ board of governors by a letter signed by its secretary, one G. O. Otaru. In consequence, the plaintiff brought the suit claiming the above reliefs.
Pleadings were duly filed and exchanged by the parties. Each party amended its pleadings once. The trial proceeded on the amended pleadings. At the trial, the plaintiff gave evidence but called no witness. On the other hand, the registrar of the defendant gave evidence for the defendant. Thereafter, the case was adjourned for address. The learned trial Judge then considered the submissions of the learned counsel and the evidence of the two witnesses who testified. And in a reserved judgment held:-
“In the final analysis, upon a dispassionate consideration of the issue canvassed in the present case and the authorities and having regard to my proceeding remarks, the plaintiff’s case substantially succeeds and he is entitled to judgment and the reliefs sought in paragraph 17(ii), (iii), (iv) of his statement of claim are hereby granted. I assess the cost in this action at N1,000.00 (One thousand naira) in favour of the plaintiff”.
Dissatisfied with the above judgment of the lower court, the defendant, now the appellant appealed to this court on five grounds. Later, with leave of this court, which was granted on 1st June, 1988, they filed an additional ground of appeal. From the said six grounds, the appellants formulated the following three issues for determination-
(1) Whether or not the learned trial Judge was right in holding that the appointment of the plaintiff was not determined in accordance with section 26(1) & (2) of the Auchi Polytechnic Law, and, Chapter XXI, Clause 1(a), (b), (d) and 2 of exhibit E, i.e., the Handbook of Administrative Procedure merely because exhibit G was signed by the secretary to the Board?
(2) Whether or not the learned trial Judge was right in holding that the appellant abandoned paragraph 14 of his statement of defence and in ordering a reinstatement of the respondent on that account?
(3) Whether or not the learned trial Judge was right in holding that the respondent was still in the employment of the appellant and therefore entitled to the emolument of his office from 1st of December, 1984 to the date of the judgment?
The respondent on the other hand formulated four issues for determination. I have examined the issues for determination as formulated by the parties. I am inclined to hold that the issues formulated by the appellant’s are sufficient to determine this appeal.
At the hearing of the appeal, each party adopted its brief of argument. The learned counsel for the appellant urged us to allow the appeal. The learned counsel for the respondent, on the other hand, urged otherwise.
Arguing issue one, Orbih, Esq. of counsel submitted that the relationship between the appellant and the respondent was regulated by the provisions of Auchi Polytechnic Law, Cap. 11, Laws of Bendel State of Nigeria which is applicable in Edo State. He referred to part of the decision of the lower court that the appellant complied with the rule relating to fair hearing in the procedure it adopted while dismissing the respondent from its service. He conceded that the said court found however, that the letter of dismissal served on the respondent i.e. exhibit G should not have been signed by the secretary of the board of governors, Mr. G. O. Otaru as it was in complete violation of the procedure laid down in section 7(iv) of exhibit E. The learned counsel however, did not agree with this part of the judgment. He contended that the fact that exhibit G was signed by the Secretary of the board of governors and not by its Chairman did not invalidate the dismissal of the respondent. According to the learned counsel, in the peculiar circumstances of this case, there was substantial compliance with the regulation for dismissal of the respondent as is stipulated in exhibit E as well as the provisions of section 26 of the Auchi Polytechnic Law. This is more so he argued as the said letter was issued on the directive of the board of governors as required by the relevant law and regulation.
The learned counsel submitted that the case of Okoro v. Delta Steel Co. Ltd. (1990) 2 NWLR (Pt.130) at 105 was inappropriately applied to the present case because the power of dismissal was conferred on the board. And the board has the discretion to exercise the said power. It was the said board, the learned counsel observed that directed that exhibit G be issued. He contended that in the light of the foregoing, this is not a case of delegatus non potest delegare.
Finally, on this point the learned counsel submitted that a donee of a power can delegate his power to somebody else. He relied on the case of Psychiatric Hospital Board v. E. O. Ejitagba (2000) 11 NWLR (Pt.677) 154 at 169 – 170, where the Supreme Court stated as follows:-
“Where a minister is charged with a responsibility, as the minister is so charged under section 4(2) of the Pensions Act, such a responsibility can be delegated”.
He urged the court to resolve the issue in favour of the appellant. In his reply, Obamogie, Esq. of counsel referred the court to the respondent’s pleadings which were admitted by the appellants, to wit – that the respondent appointment is regulated by the provisions of Auchi Polytechnic Law, Cap. 11, Laws of Bendel State of Nigeria applicable in Edo State and also the Handbook of Administrative Procedure made pursuant to the said Law. The learned counsel referred to the findings of the lower court confirming the above facts. He submitted that where a contract of service is governed by the provisions of a statute or where the conditions of service are contained in regulations derived from statutory provisions, the employee is invested with a legal status higher than the ordinary one of master and servant relationship. He relied on the following cases:-
(1) Imoloame v. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303 at 317.
(2) Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt. 9) 599.
(3) Shitta Bey v. Federal Public Service Commission (1981) 1 SC 40.
He contended that where a servant’s appointment enjoys statutory flavour, same cannot be determined except in strict compliance with the provisions of the statute concerned. It is further the view of the learned counsel that where a statute provides a procedure for doing a thing, that procedure must be followed. And, failure to follow the procedure would render the exercise of the power void. He cited the following cases:-
(1) Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638.
(2) Ogualaji v. A.-G., Rivers State (1997) 6 NWLR (Pt. 508) 209.
The learned counsel then referred to exhibit G – the notice of dismissal issued to the respondent. It is the learned counsel’s view that exhibit G was issued in breach of the provisions of section 26 (1) and (2) of the Auchi Polytechnic Law and, Chapter XXI of exhibit E – the Handbook of Administrative Procedures.
In his view, only the Chairman Board of Directors has the power to sign the instrument that removes the respondent from the service of the appellant. He submitted that where power is delegated to a person, it is exercisable by that person alone, directly, and, personally. In that case, the person to whom the power is delegated is not competent to delegate it to another person. He submitted that this principle is fundamental and the violation of it cannot be treated as an irregularity. He relied on –
(1) Okoro v. Delta Steel Co. Ltd. (1990) 2 NWLR (Pt. 130) 87 at 105.
(2) Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449.
(3) Wilson v. A.-G., Bendel State (1985) 1 NWLR (Pt. 4) 572.
Finally, the learned counsel referred to the discretion granted to the Board of Governors in section 126(1) and (2) of the Auchi Polytechnic Law and in clauses 1(a), (c), (d) and 2 of Chapter XXI of exhibit E. He submitted that the discretion relates to the issue of whether the staff concerned should be dismissed or retained.
Continuing, he contended that where the Board of Governors decides to dismiss the staff, the instrument of dismissal must be signed by the Chairman.
He urged the court to resolve this issue in favour of the respondent.
I now deal with the submissions of the learned counsel. The Auchi Polytechnic was established by the provisions of section 3 of the Auchi Polytechnic Law, Cap. 11, Laws of Bendel State, applicable in Edo State. Part 6 thereof, deals with the appointment of staff and conditions of service of such staff.
Section 26 provides for the removal of academic and administrative staff. The part of the section that is relevant to this judgment reads –
“26(1) If it appears to the Board of Governors that there are reasons for believing that the Principal, an Assistant Principal, the Secretary or any other person employed as a member of the academic or administrative staff of the Polytechnic should be removed from his office or employment on the ground of misconduct or inability to perform the functions of his office or employment, the Board of Governors shall –
(a) give notice of those reasons to the person in question;
(b) …
(c) …
(d) make reasonable arrangements for the person in question accompanied by a representative if he so desires, to be afforded an opportunity, of appearing before and being heard by the investigating committee with respect to the matter, and if the Board of Governors after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid, the Board of Governors may so remove him by, an instrument in writing signed by the Chairman of the Board of Governors on the direction of that board.”
It is obvious from the above provisions that the appointment and removal of the respondent in this appeal are governed by the provisions of the Auchi Polytechnic Law.
It is to be noted that an employment is said to have a statutory flavour when the employment is protected by the provisions of a statute as in the present case. Consequently, from the above facts, the employment of the respondent has a statutory flavour. See: Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. It follows, in my view, that the relationship between the respondent and his employers – the appellants, is beyond the ordinary or mere master and servant. This is because the respondent has a legal status and ex-hypothesis, a right to remain in his employment until properly removed in accordance with the relevant provisions of the Auchi Polytechnic Law supra.
It is now settled that where an Act prescribes a particular method of exercising a statutory power, any other method of exercise of it is excluded. Isaac Ogualaji v. A.-G., Rivers State & Others (1997) 6 NWLR (Pt. 508) 209.
It does not seem to me that the learned counsel of both parties disagree as to the finding of the lower court that –
“It is undeniable on the evidence adduced and considered as a whole and upon a perusal of the documents –
Exhibits F, K, L, M and the plaintiffs’ admission in exhibit M that the defendant complied with the rules relating to fair hearing by adopting the procedure stipulated in exhibit E which gave the plaintiff ample opportunity to defend the allegation made against him.”
“This appeal is essentially, therefore based on the interpretation to be given to the following provisions of section 26 of Auchi Polytechnic Law, Cap. 11, Laws of Bendel State applicable in Edo State. It reads –
” … and if the Board of Governors after considering the report of the investigating committee is satisfied that the person in question should be removed as aforesaid, the Board of Governors may so remove him by an instrument in writing signed by the Chairman of the Board of Governors on the direction of that board.”
“In interpreting the above provisions the lower court held that the –
” … decision of the Board of Governors to dismiss the plaintiff can only, be conveyed to him by an instrument in writing signed by the Chairman of the Board of Governors on the direction of the board.”
Continuing the learned trial Judge further held –
“I am constrained to hold that the letter -exhibit G dismissing the plaintiff which was signed by G.O. Otaru Secretary of the Board of Governors is in complete violation of the procedure laid down for dismissal of the plaintiff as stipulated in section 7 paragraph (iv) of exhibit E. (Handbook of Administrative Procedure). I therefore find as a fact that the purported dismissal of the plaintiff by the terms of the letter exhibit G is invalid, unlawful and ultra vires the powers vested in the board of Governors “in that the document exhibit G, was not signed by the appropriate authority”.
(1) Garba v. FCSC (1988) 1 NWLR (Pt.70) 449 ratio 20 and 21;
(2) Okoro v. Delta Steel Co. Ltd. (1990) 2 NWLR (Pt.130) 87 ratio 8.”
It does seem to me that a resolution of this issue calls for the interpretation of the above passage, in section 26 of the Auchi Polytechnic Law.
It is common ground that exhibit G was the instrument by which the respondent was dismissed. The exhibit was signed by one G.O. Otaru, the Secretary of Board of Governors. It is the view of Orbih, Esq. of counsel that under section 26 of the Auchi Polytechnic Law the power to dismiss the respondent was conferred on the Board of Governors, with a discretion to exercise it. He contended that the board that has that power to dismiss the respondent directed its secretary to issue exhibit G. In his view therefore, it was not a case of a delegate of power sub-delegating to make the delegation come under the principle of “delegatus non potest delegare”.
On the other hand, Obamogie, Esq. of counsel submitted that the finding of the lower court is unassailable. The learned counsel drew the attention of the court that the notice of dismissal, exhibit G was signed by the Secretary who clearly had no power to do so. He contended that where power is delegated to a person, it is exercisable by, that upon directly and personally, and he is not competent to redelegate it.
A careful look at the provision shows that the word “may” is used in the provision. Cullen, C.J. in Massey v. Council of Municipality of Yan (1922) 22 S.R.S.W. 494 at 497 – 499 observed that “the ordinary rule for construction of statutes containing the word “may” or the word “shall” I think is very well expressed in Halsburys Vol. 27, page 170, (2nd Edition Vol. 31) pages 529 -530. The use of the word “may” prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it.
Cotton L. J. on the other hand observed in Re: Baker Nicholas v. Baker “I think great misconception is caused by saying that in some cases ‘may’ means ‘must’. It never can be must so long as English Language retains its meaning.”
In the light of the foregoing, it cannot be disputed that the Board of Governors has a discretion under the sections. But that is not the issue. The question here is, a discretion to do what? It is my firm view that it is a discretion to remove the person in question, if after considering the report of the investigating committee set up by it, it is satisfied that the person in question should be removed. It is also my view that the word ‘by’ used in the provision only shows in what way or manner the person in question should be removed. See: Oxford Advanced Learner’s Dictionary, 6th Edition page 151. I am inclined to agree with the interpretation of the provision by Obamogie, Esq. of counsel that once the board in its wisdom has decided to remove the person in question the decision must be conveyed to the person by a letter signed by the Chairman of the board.
In the light of all I have said, issue one is resolved in favour of the respondent.
On issue 2, Orbih, Esq. of counsel, submitted that the respondent did not file a reply to the amended statement of defence in particular to paragraph 14 thereof. He referred to the relevant part of the judgment in respect of the said paragraph 14. It reads:-
“The defence failed to lead evidence to support that averment. The rule is that paragraph 14 of the amended statement of defence is deemed abandoned. The result is that the defence has been unable to establish that the position has been validly filled there is no position to which the plaintiff can be reinstated.”
In order to refute the above part of the judgment, Orbih, Esq. of counsel, referred to the evidence of the sole defence witness to wit-
” … The plaintiff is asking for a declaration that he be reinstated as the assistant Chief Executive Officer (Accounts). But this position has been filled in the establishment of the defendant. The plaintiff cannot (therefore be re-absolved (sic) into the defendant’s department in the same post”.
He conceded that an appellate court would not likely interfere with the findings of fact of a lower court. This is because, the evaluation of evidence is the primary duty of the lower court. He contended that where evaluation of evidence is satisfactorily made by the lower court, the appellate court’s interference abates. He relied on the case, of Samuel Mbanefo Agusiobo & Ors. v. Anthony Akume Okagbue & Ors. (2001) 15 NWLR (Pt. 737) 502. He submitted that an appellate court would however interfere and reverse the findings of the lower court where such findings are perverse. He relied on the case of Messr v. Ibrahim (1974) 5 SC 55. It is the learned counsel’s view that the present case is an appropriate case that deserves the intervention of this Honourable Court. He contended that the reason given for re-instating the respondent to his former post by the lower court was based on an erroneous premise that the averment in paragraph 14 was abandoned by the appellant. He urged the court to resolve the issue in favour of the appellant.
In his reply to the above, Obamogie, Esq. of counsel, submitted that the additional ground of appeal filed by the appellant is invalid and incompetent. He submitted that a ground of appeal cannot be both an error in law and a misdirection at the same time. In his view, a ground that is an error in law and that which is a misdirection on fact are mutually exclusive. He urged the court to strike out the additional ground. And, further to discountenance all submissions made in relation thereto. He relied on –
Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744;
Amadi v. Orisakwe (1997) 7 NWLR (Pt. 511) 161;
Obijuru v. Anokwuru (2002) 17 NWLR (Pt. 743) 685.
The learned counsel submitted in the alternative that even if the ground is competent, the issue of the re-instatement of the respondent to his position as Assistant Executive Officer with the appellant cannot be open to question. He repeated his former submission that the dismissal of the respondent by exhibit G was in breach of the statutory procedure set out in section 26(1) & (2) of the Auchi Polytechnic Law, and Chapter XXI, and, Clauses 1(a), (c), (d) and 2 of exhibit E – the Handbook of Administrative Procedures which governed the respondents’ appointment. The dismissal, according to the learned counsel was a complete nullity. In that case, the respondent’s position in the employment of the appellant was never vacant. Consequently, it was not available to be filled. He relied on –
(1) Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599
(2) Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) page 162
(3) U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 303) 317.
It is the learned counsel’s view that the mistake made by the lower court by glossing over the evidence that the position left by the respondent had been filled is of no moment. He submitted that the slip or error has not occasioned a miscarriage of justice as the respondent’s dismissal was invalid. He relied on –
(1) Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt. 578) 546 at 559.
(2) Ugochukwu & Ors. v. Eric & Ors. (1997) 7 NWLR (Pt. 514) 535.
He urged the court to resolve the issue in favour of the respondent.
I now consider the submissions made by the learned counsel. It is trite that a ground of appeal which complains of error in law and misdirection on facts is an incompetent ground which is liable to be struck out. Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605. The additional ground filed by the appellant in this case suffers from this misdescription. It cannot therefore stand. Consequently, it is struck out. So also is the issue formulated from it and submissions made thereon.
It is observed that the learned counsel for the respondent conceded that the record of proceedings contain evidence that the position left by the respondent has been filled. Consequently, there is no vacant position to which the respondent may be reinstated.
The learned counsel observed however that-
(1) the dismissal of the respondent by exhibit G was in breach of the statutory procedure set out in section 26 of the Auchi Polytechnic Law and, Chapter XXI of the Handbook exhibit E. He submitted in that case, the dismissal is invalid and ineffectual. It was a complete nullity. In consequence, the respondent’s post was never vacant or available to be filled. He relied on a number of cases, including,
(i) Olaniyan v. University of Lagos (supra)
(ii) Eperokun v. University of Lagos (supra)
(2) the mistake made by the learned trial Judge by wrongly stating that paragraph 14 of the statement of defence was abandoned by the appellant as there was no evidence led in support of the averment is of no moment.
I agree that an appellate court will not interfere with the finding of facts of a trial court unless the finding can be pigeon holed into any of these headings, i.e, the finding is, –
(1) not supported by evidence;
(2) perverse;
(3) based on legally inadmissible evidence; and
(4) fraught with error in law;
whereby it could lead to a miscarriage of justice. Dr Kamoze Ofondu v. S. E. Niweighe (1993) 2 NWLR (Pt. 275) page 253.
From what I have said, it is common ground that there is no evidence on which the learned trial Judge arrived at his conclusion that the appellant abandoned paragraph 14 of the statement of defence. The finding is perverse. This court should therefore interfere. The issue is therefore resolved in favour of the appellant.
The question however is how does the foregoing affect issue 3 which is: whether the trial Judge was right in holding that the respondent was still in the employment of the appellant and therefore is entitled to the emolument of his office?
Arguing the above, Orbih, Esq. of counsel contended that the Law requires the person wronged to take all steps to mitigate the loss consequent upon the wrong, and, refuses to award the victim any damages in respect of any loss which could be avoided by reasonable effort. He relied on the case of British Westing House Co. v. Underground Rey (1912) AC 673 at 689. The learned counsel referred to the age of the respondent at the time of dismissal which was 41 years. He observed that there is no evidence that the respondent looked for an alternative employment without success. He urged the court to take all these into consideration in arriving at its decision.
On the other hand, it is the view of Obamogie, Esq. of counsel, that the respondent’s post in the employment of the appellant was never vacant. Consequently, it was not available to be filled. He referred to a number of authorities and urged the court to dismiss the appeal.
I have carefully examined the submissions of the learned counsel in the light of the existing laws and the decisions of the court of last resort. The present action was instituted in 1988. We are in year 2005. It is very unlikely that the respondent will have a post in the appellants’ establishment to go to after seventeen years of disengagement.
It is important therefore that I take into account the following factors in arriving at my decision viz –
(1) Whether a third party has now a legal interest in the post formerly held by the respondent? Or
(2) Whether it is likely that the post is vacant since the respondent was disengaged?
It is not for this court to speculate as to what would have been the decision of the lower court if it had taken into consideration the evidence of the sole witness for the appellant that the post has been filled. However, considering all the facts, it is my view that the justice of the case demands that the respondent should be paid all his entitlements from December, 1984 (when he received his last salary) to 18th day of May, 1993, the date of the judgment of the lower court. And, thereafter, honourably be retired with full benefits. And, that is the order of this court.
I find no merit in this appeal. Accordingly, it is dismissed with costs which I assess at N5,000.00.
Other Citations: (2005)LCN/1706(CA)
