Davidson Obianwuna V. National Electric Power Authority (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

This appeal is sequel to the judgment of Ajakaiye, J., of the Federal High Court, holden at Enugu, delivered on 18th March, 2004,

?The appellant was employed in the services of the Respondent on 29th April, 1981 and was until his dismissal, Officer Grade 1 Programmer in the Computer Department. The appointment was subsequently confirmed. The position is pensionable. The Respondent was a body established pursuant to an Act of the National Assembly. By a letter dated 5th October, 1994 the Plaintiff was dismissed from the services of the Respondent based on the allegation that the Appellant committed fraud between 1989 till the date of the query i.e 14th February, 1994 while heading the Computer Centre Owerri. The Appellant brought an action at the Federal High Court, Enugu seeking inter alia: a declaration that his purported dismissal from the services of the Respondent was invalid, illegal, and null and void, thus challenging his dismissal. The Appellant also sought, inter alia: an order of Court reinstating him to his status as a staff of the Respondent. The Appellant complained that he was not

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given a fair hearing and that the Provisions of the Conditions of Service admitted in evidence was not complied with before his dismissal. The Appellant claimed that although he was accused of fraud, he was not first tried by a Court of competent jurisdiction before he was dismissed from his employment.

Pleadings were filed and exchanged between the parties. The suit then proceeded to hearing and at the end of it, the learned trial judge found for the respondent and dismissed the appellant’s claim. The appellant, dissatisfied with the said judgment appealed against it to this Court, anchored on five grounds of appeal. In order to prosecute the appeal, the appellant?s brief of argument, settled by Ogochukwu Onyekwuluje, Esq., was filed on 26th September, 2008. The same was deemed as properly filed and served on 26th September, 2008. In it, three issues were identified for the determination of the appeal. They are, to wit:
1, Whether from the contents of the Query, Exhibit M, the offence for which the Appellant was accused of was not a criminal offence requiring a fair determination of a competent Court before the Plaintiff’s employment could be

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determined. Ground 3.
2. Whether the Court was not wrong in relying heavily on the evidence of DW. 1 who was not fully cross-examined at the trial. Ground 1.
3. Whether the Plaintiff’s employment was an employment with statutory flavour and whether in view of same the Appellant’s employment was properly determined in accordance with the provisions of the Constitution, the staff conditions of service and the Act creating the Respondent (NEPA). Ground 2, 4, 5.

On the part of the respondent, Emeka Oko, Esq., settled the Respondent’s brief of argument which was filed on 23rd May, 2011 and deemed properly filed and served on 12th November, 2014. Three issues were also identified therein for the resolution of the appeal, thus:
i. Whether from the contents of Exhibit ‘M’ (the query) and Section 3 Sub-section 33:02 Paragraph 1 of Exhibit “Q” (Condition of Service) the Appellant was dismissed on allegation of criminality requiring determination of a Court of competent jurisdiction before the Plaintiff’s employment could be determined. Ground 3.
ii. Whether placing a probative value by the trial Court on the evidence of Dw1 who was not fully

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cross-examined at the trial amounts to a denial of fair hearing. Ground 1.
iii. Whether the trial Court was right in dismissing the plaintiffs case having found as a fact that Plaintiff did not enjoy appointment with a statutory flavour. Grounds 2, 4 and 5.

I am satisfied with and adopt the three issues nominated by the appellant’s learned counsel for the determination of the appeal. I shall consider and determine them together.

Arguing issue 1, it is the contention of the appellant’s learned counsel to the effect that upon a perusal of Exhibit M which was the query issued to the appellant with respect to some fraud perpetrated at the Computer Centre, Owerri between May, 1989 till the date of Exhibit M, a criminal offence was suggested as having been committed, but that the learned trial judge, only considered Paragraph 2 of Exhibit M. He submitted that a document ought to be construed a whole and not paragraph by paragraph. He referred to CBN v. Igwillo (2007) 4 NWLR (Pt.1054) 393; Royal Exchange Assurance Nigeria Ltd v. Aswani ile Industries Ltd (1991) 2 NWLR (pt. 176) 639. He furthermore, submitted that although an employer in writing

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the query to the employee may employ and use the word misconduct in respect of the questionable action of the employee, where the allegation against the employee borders on the commission of a crime, it would be taken that a criminal allegation was being made against the employee by the employer. He placed reliance on Savannah Bank Plc v. Fatoku (2002) 1 NWLR (Pt.749) 544 at 559 and that the particulars of fraud are contained at paragraph 8 of the respondent’s statement of defence.

He submitted also that fraud being a criminal offence, the investigating panel set up by the respondent to try the appellant was without power to so do. He referred to the Supreme Court decision in Bamgboye v. University of Ilorin (1999) 10 NWLR (PT. 622) 290 to the effect that the supporting judgment of Ayoola, JSC, which held that the council of the said University could try a criminal offence, was an Obiter, it not representing the pronouncement in the lead judgment rendered by Onu, JSC. He insisted that where views expressed in a concurring judgment appear different from the lead judgment, the views in the concurring judgment becomes an obiter dictum. He referred to Elijah

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Idise & Ors v. Williams International Ltd (1995) NWLR (pt. 370) 142 at 150; Abacha v. Fawehinmi (2000) 6 NWLR (PT. 660) 228 N 322 – 328 (SC). He persisted in his submission to the effect that it is only a Court or Tribunal that exercise judicial powers that can try an allegation bordering on the commission of a criminal offence. He referred to Dongtoe v. Plateau State Civil Service Commission (1995) 7 NWLR (Pt. 408) 448; Sofekun v. Akinyemi & 3 Ors (1980) 5 – 7 SC 1; FCSC v. Laoye (1989) ? NWLR (pt.106) 652; Garba v. University of Maiduguri (1986) 1 NWLR (pt.18) 652; Anosike v. United Bank of Nigeria Ltd (1994) 1 NWLR (pt. 322) 577; Aiyetan v. NIFOR (1987) 3 NWLR (pt. 59) 49; Osagie v. NNB PLC (2005) 3 NWLR (pt. 913) 513 at 516.

Arguing issue 2, the appellant’s learned counsel submitted that the appellant’s right to fair hearing was breached at the trial Court because according to him, the DW1 Joseph Awoyemi Oshiowo was not fully cross examined by the appellant before the respondent’s case was foreclosed by the trial judge. He also submitted that since the said DW1 with the document – Exhibit S tendered into evidence by him, was not available for

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a full cross examination by the appellant, the evidence of DW1 and Exhibit S had no probative value, hence the learned trial judge ought not have accorded no probative value to the DW1’s evidence and Exhibit S. He insisted that if the DW1 was fully cross examined by the appellant, the former’s evidence would have been weakened, neutralized or demolished which is the essence of cross examination. He placed reliance on Ajao v. Alao (1986) 5 NWLR 802 at 882 (sic) Agbonifo v. Aiwereoba (1988) 1 NWLR 325 (sic).

?With respect to issue 3, the appellant’s learned counsel submitted that, the respondent being a creation of statute – that is, the National Electric Power Authority Act, Cap 256 Laws of the Federation 1990, the employment of the appellant was governed by the National Electricity Power Authority Conditions of Service, 1978 edition which was made pursuant to the Statute, Cap 256 of 1990, therefore according to him, the appellant’s employment enjoyed statutory flavour. Hence, there must be strict adherence to the provisions of the Staff Conditions of Service of the respondent, read together Section 33(1) and 4 of the 1979 Constitution. It is the contention

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of appellant’s learned counsel to the effect that in proceedings leading to disciplinary sanctions against persons accused of criminal offences which the officer in question denies and disputes, that such accusation must be first determined by a Court of competent jurisdiction before any disciplinary sanction is imposed on such an officer. He referred to Sofekun v. Akinyemi Denloye (supra). He submitted that in the instant case, the respondent did not comply with Paragraph 34.01 of Section 4 of the 1978 edition of the Staff Condition of Service of the respondent, because not all the documents used against the appellant at the disciplinary committee trial were made available to him. He referred to paragraph 26 of the appellant’s statement of claim vis-a-vis paragraph 13 of the respondent’s statement of defence and that parties to any judicial proceeding and the Court itself are bound by the parties pleadings. He relied on Abraham v. Olorunfemi (1991) 1 NWLR (Pt.165) 53; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 30; Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668 at 686; Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641 at 655.

?Furthermore, he submitted to

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the effect that where a decision is given by a Court, in violation of the rules of natural justice or fair hearing, or the provisions laid down in the Staff Conditions of Service, such a decision is null and void and of no effect whatsoever. He relied on Adigun v. A. G, Oyo State (1987) 1 NWLR (pt. 53) 678.

It is also the contention of the appellant’s learned counsel that the learned trial judge was in error for holding that the appellant’s employment was not with any statutory flavor because the National Electric Power Authority Act, Cap. 256 of 1990 which created the respondent, did not provide for the appointment and discipline of staff of the respondent and that such provisions were only contained in the Staff Hand Book and Manual and not in the Act, aforesaid. He relied on Central Bank of Nigeria v. Igwillo (supra) to the effect that the Staff Manual of the Central Bank which was made pursuant to the Central Bank of Nigeria Act conferred the employment of its staff with statutory flavour. He also referred to Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40, Ledo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732) 116;

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Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 5) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 301. He insisted that since the Staff Manual or Hand book in the instant case, was made pursuant to the NEPA Act, aforesaid, the appellant’s employment was with statutory flavour and the said employment was clothed with tenure and legal status.

In responding to the contention of the appellant, learned respondent’s counsel submitted that, indeed the law is settled to the effect that where there is no admission of guilt on the part of an employee accused of not just an administrative misconduct, but a serious criminal offence, the employer is obliged to prosecute the employee in a Court of law to prove the allegation beyond reasonable doubt. He referred to A.G. Kwara State v. Ojulari (2007) 1 NWLR (pt.1016) 551 at 571 – 572. He however, submitted that in the instant case, the query contained in Exhibit M, issued to the appellant, merely accused him of misconduct prejudicial to discipline and proper administration of the authority which is an offence under Section 3:33:02 of the Conditions of Service – Exhibit Q. He submitted that the

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appellant was properly investigated and participated at the respondent’s disciplinary panel and found wanting, And that there is nothing providing that the appellant ought to have been first tried by a competent Court and found guilty before he could be dismissed from the services of the respondent. He referred to Francis C. Arinze v. First Bank of Nigeria (2004) 18 NSCQR 429 at 440; Augustine Maikyo v. W. E. Itodo & Ors (2007) 29 NSCQR 1408 at 1429. He insisted that the use of the term or word “fraud” by the respondent, in the description of the activities of the appellant, was immaterial because the allegation against him was really of misconduct prejudicial to discipline.

Arguing issue 2, respondent’s learned counsel submitted to the effect that it was the fault of the appellant’s counsel at the trial who had earlier applied for an adjournment for further cross examination of DW1, who on the return date and with the absence of the same DW1 from Court, prayed the Court to foreclose the respondent’s defence. Therefore according to him, the appellant’s counsel at the trial Court, ought to have asked for another adjournment of the matter, for the DW1

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to be in Court for his further cross examination, instead of calling on the Court to foreclose the respondent’s defence. He further submitted that the trial Court had the power to attach probative value to the evidence-in-chief of the DW1. He referred to Mafidoh Okwa v. Iyere Iwerebor & Ors (1969) 1 All NLR 87. He insisted that since it was the appellant’s counsel who hurriedly applied for the foreclosure of the defence at the trial, the appellant cannot benefit from his own wrong, placing reliance on Attorney General of the Federation v. Chief (Dr.) Zebolum Meschech Abule (2005) 31 WRN 9 at 37. He also submitted that in the circumstances of this case, where the appellant had every opportunity to present his case and he was not prevented from doing so, but refused to utilize the opportunity provided by and within the law, he cannot turn round to complain of a denial of fair hearing. He referred to Bill Construction Co. Ltd v. I & S/S. T Ltd (2007) 7 WRN 152.

He furthermore submitted that the learned trial judge, having properly evaluated the evidence adduced before him and made findings therefrom which are not perverse, the appellate Court will

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not disturb such findings of facts, just because a counsel failed to cross examine a witness in the case. He placed reliance on Madam Ayisatu Ogunmuyiwa v. Chief Kessington Odukoya (2008) 49 WRN 77 at 91; Crown Flour Mills Ltd & Anor v. Pastor Kunle Aluko Olokun (2008) 3 WRN 40 at 53 – 54.

With respect to issue 3, the respondent’s learned counsel submitted that in the instant case, it is only in the respondent’s Hand book Exhibit Q that the terms of the appellant’s appointment, are contained and not in the NEPA ACT, hence the appellant’s employment was not clothed with statutory flavour. He referred to Fakuade v. OAUTH (1993) 5 NWLR (Pt. 791) 47, Idoniboye Obu v. NNPC (2005) 2 NWLR (PT. 805) 589 AT 631. He insisted that since Exhibit Q was not tied to the National Electric Power Authority Act, the appellant’s employment was not with statutory flavour. He also insisted that the fact that the appointment of a party is with statutory flavour does not, without more, make it an employment with statutory flavour, placing reliance on Ekeuola v. CBN (2006) 14 NWLR (pt.1000) 292 at 324. He however, submitted that where an employment is with statutory flavour in

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a contract of service, the employee must be removed from office in accordance with the provisions spelt out in the statute. He referred to Geidam v. NEPA (2001) 2 NWLR (pt. 696) 45 at 55 56, and that where an employment is not governed by a statute but by an agreement, the removal of an employee from such employment must be in accordance with the agreement entered into by the Parties.

Learned respondent’s counsel insisted that since the employment of the appellant was not attached to the statute which created the respondent, but attached to Exhibit Q only, the contract of Service between the parties is a mere master and servant relationship which may be determined by the respondent at anytime with or without reasons.

Resolution of issues:
The starting point of my discourse of the issues thrown up in this appeal, naturally is the complaint by the appellant that he was not afforded a fair hearing because according to him, he did not fully cross-examine the DW1 before the case was concluded and judgment was entered against him at the Court below. It is a truism that nothing rankles the soul and spirit of any human being more than the resonating

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and recurring feeling that he was denied a fair hearing and consequently denied justice in any give case and circumstance, premised on a failure to accord him the opportunity of putting up his case and being heard before a decision is taken for or against him. Hence, it is said that fairness is the touchstone of justice. Therefore, a hearing particularly in a judicial proceeding can only be said to be fair, if all the parties in the case are given every opportunity to present their case to the best of their abilities.

The law is well settled to the effect that the consequences of a breach of fair hearing in any matter leads to the nullification of such proceedings and declaring the same as null and void. CITEC International Estate Ltd & Ors v. Francis & Ors (2014) LPELR – 22314 (SC); Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 975) 411 at 430 – 431; Salu v. Egeibon (1994) 6 NWLR (pt. 348) 23 at 44; Olatubosun v. NISER (1988) 3 NWLR (Pt .80) 25; Adigun v. Attor. Gen. Oyo State (1987) 1 NWLR (Pt. 53) 678; Federal Civil Service Commission v. Laoye (1987) 2 NWLR (Pt.106) 652.

The law is equally well settled that where a party had every opportunity to

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present his matter as it deemed fit and not prevented from so doing, but fails to avail itself the opportunity of conducting its case unlimited and unhindered by the Court, such a party is on its own and its failure cannot be blamed on the Court, but on itself, that is, it is its own funeral. N.A.C.B. Ltd v. Ozoemenam (2005) 7 NWLR (pt. 925) 552; Bill Construction Co. Ltd v. Imani & Sons Ltd (2006) 19 NWLR (Pt.1013) 1 at 14; (2007) 7 WRN 152; Akinduro v. Alaya (2007) All FWLR (Pt. 381) 1653 at 1672 – 1673, (SC) – all to the effect that where the Court creates the enabling environment for fair hearing in any matter before it to all the parties and a party fails and does not take advantage of that environment, the fault is that of the party and not that of the Court.

Now, to the facts of this case, with respect to the complaint of denial of fair hearing put forward by the appellant. I have perused the record of appeal, for the proceedings at the Court below on 23rd Jan., 2002 and 8th April, 2003 reflected on pages 77 – 78 thereof. It is clearly manifest that at the end of DW1’s evidence-in-chief, appellant’s counsel began to cross examine him and at the

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instance of appellant’s counsel, the case was adjourned to a further date for the continuation of his cross examination of DW1. Then on resumption of hearing on the return date, 8th April, 2003; whereas the appellant and his counsel were in Court, the respondent and her counsel were absent. DW1 was also absent. The appellant’s counsel then applied that since the respondent and her counsel were absent from Court, their defence should be closed. The trial Court agreed with the appellant’s counsel and the defence was closed. Perhaps, appellant’s counsel forgot that with the closure of the respondent’s defence at his instance, he unwittingly lost the chance and opportunity of further or continued cross examination of the DW1, which he needed, in order to wrap up the appellant’s case. Was that the fault of the Court or of the appellant’s counsel? The answer is obvious and not farfetched. The blame is that of the appellant’s counsel who lost the opportunity of a continuation of the cross examination of the DW1; if he the appellant’s counsel, had not applied for the foreclosure of the defence, when DW1 was not in Court on 8th April, 2003. To my mind, prudence ought

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to have dictated to the appellant’s counsel to take another course of action to guarantee the attendance of DW1 in Court at a later date, for the continuation of his cross examination by the appellant’s counsel.

I therefore fail to see how the appellant was denied a fair hearing. I think that it is a lame argument that the learned trial judge ought not to have relied on the evidence of DW1 because of the appellant’s failure to fully cross examine him. I am of the considered opinion that the learned trial judge had the power to accept the DW1’s evidence, if he found that the pieces of evidence proffered by the witness were relevant, cogent and reliable/credible. The learned trial judge was well within his province, to do that. Melford Agala & Ors v. Chief Benjamin Okusin & Ors (2010) 4 SCNJ 1 at 18.

I am satisfied that issue 1 has no onions and it is resolved against the appellant.

The respondent had set up an Ad-Hoc Disciplinary Committee to investigate allegations of fraud in the Computer Centre, Owerri from 1989 to 26th April, 1994. The said Committee in her observations and recommendations found the appellant wanting and invariably

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the appellant was dismissed from the services of the respondent. It is noteworthy that before the Ad-Hoc Disciplinary Committee was set up to investigate the allegation of fraud in question, a query was first issued to the appellant, for his representations with respect to the allegations of fraud at the Owerri Computer Centre. The said query is represented by Exhibit ?M? which says; in part:
“Report received in this office has shown that between May 1989 till date, there was fraud in the Computer Centre, Owerri. Information also reveals that at one time or the other during the period you were heading/overseeing the Computer Centre, Owerri. Your action and omission led to this.
Your conduct amounts to action prejudicial to discipline and proper administration of the authority which is an offence under Chapter 3, Section 3, Sub-section 33.02 Paragraph 1 of the … Conditions of Service.”

?The appellant in his representation in response to Exhibit M, denied the allegation of fraud against him. His response is Exhibit N. In his statement of claim, he again denied the – allegation of fraud made against him. The respondent,

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especially at Paragraph B(a) to (f) of her statement of defence, averred to the effect that:
?…the plaintiff during the period he acted as the Computer Centre Manager, Owerri was known to have
(a) without authority tampered with Owerri Computer Programs which led to software corruption, and failure of the system which in effect led to late production of bills.
(b) made arbitrary alteration of consumer tariff codes into staff and pensioners (S & P)Tariff codes without CRMD from the sales section in respect of Aba and Owerri Districts.
(c) deleted tariff code columns from RMC Report from March to July 1993 thereby making it difficult for anyone to notice a change in tariff codes.
(d) created fake new consumer accounts without CRMD from the sales section.
(e) illegally transferred accounts into status codes (unbilled accounts) thereby preventing detection of frauds.
(f) created fake accounts in order to balance the books thereby causing confusion for sale section by duplicating consumer accounts,”

?The learned trial judge at page 48 of the record of appeal, after setting out and a perusal of the

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allegations made against the appellant in Exhibit M and the findings of the disciplinary committee, found that:
“There is no doubt that some of the allegations found may constitute ingredients of one or two criminal offences, but they are in general term acts of misconduct”‘

Generally, where an employee is directly accused of the commission of a criminal offence cognizable under the criminal or penal code as the case may be, such an accusation must be proved beyond reasonable doubt in a Court of competent jurisdiction before an employer can rely on it, in order to dismiss an employee. For example, where the offence of forgery is alleged in a civil action, it inputs criminality and it must be proved beyond reasonable doubt. Eya & Ors v. Olopade & Anor (2011) 5 SCNJ 98 at 118 – 119; Dongtoe v. Civil Service Commission Plateau State (2001) 9 NWLR (Pt. 712) 132, (2001) LPELR – 959 (SC). The appellant’s contention is that the allegation of fraud levelled against him by the respondent ought to have been tried and proved beyond reasonable doubt before a Court of competent jurisdiction before the respondent could rightly dismiss him. Now, is the

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allegation of fraud made against the appellant in the circumstances of this case, in the general sense as found by the learned trial judge or it is intended to input criminality with the criminal code flavour. If the allegation of fraud is with the criminal code flavour, then such an allegation must be proved beyond reasonable doubt against the employee at a Court of competent jurisdiction before an employer can take advantage of such conviction and dismiss the employee. For, “the law requires that fraud must be distinctly alleged, with all necessary particulars and distinctively proved.” Per Nnaemeka – Agu JSC in Ojibah v. Ojibah (1991) 6 SCNJ 156. Further see: Ezenwa v. Oko & Ors (2008) 1 – 1 SC 1; (2008) LPELR – 1206 (SC) at p.22. However, where fraud is alleged in a general sense such as in a contract of employment as in the instant case, it is not the same as fraud understood and cognizable under criminal law, therefore the employee need not be prosecuted in a criminal Court and found guilty before he can be dismissed by his employer. Hence, where the word “fraud” is used in a general sense, it connotes an act which “involves moral obliquity; the act of

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obtaining a material advantage by unfair or wrongful means and that it does not carry with it the sense in which it is used in the criminal or penal code or criminal law” – per Onnoghen, JSC in B. A. Imonikhe v. Unity Bank Plc (2011) LPELR – 1503 (SC) at p.17; (2011) 5 SCNJ 73 at 92.

In the instant case, it is clear as crystals that the acts attributable to the conduct of the appellant as chronicled at page 163, particularly at Paragraph 6 of the report of the Ad Hoc Disciplinary committee, are cognizable under paragraph 33.02 of Section 3 of the respondent’s conditions of service, that is, Exhibit Q. If those acts are found proved against an employee, such as the appellant, he would be liable to dismissal on account of general misconduct because his actions are considered to be prejudicial to discipline and proper administration of the respondent. In other words, the confidence which ought to exist between an employer and an employee is eroded and undermined such that the employee could no longer be trusted by the employer. Hence, both parties cannot be said to be any longer compatible and to work together. There would be no love lost between them. I am

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satisfied that issue 2 is not available for the appellant.

I have also considered the appellant’s contention to the effect that his employment with the respondent enjoyed statutory flavour and that he was not dismissed in accordance with the provisions of the conditions of service of the respondent. The law is well settled to the effect that where an employment or contract of service is protected by the statute, the enabling law which created the governmental agency ? the employer, the removal, termination, dismissal or retirement of the employee must be predicated upon and in compliance with the statutory provisions, governing the employment or contract of service. Thus, a non-compliance with the enabling statute, in the dismissal, or retirement of an employee, renders such dismissal or retirement, as null and void. Adeniyi v. Yaba College of Technology (1993) 7 SCNJ (Pt.II) 304 at 336 & 338; Central Bank of Nigeria & Anor v. Mrs. Agnes Igwillo (2007) 5 SCNJ 52.

On the other hand, a wrongful termination of employment which does not have statutory flavour cannot be declared null and void and the remedy for such an employee is only in damages

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to be paid to him. So, he cannot be ordered to be reinstated by the employer. Union Bank of Nig Ltd v. Chukwuego Ogboh (1995) 2 SCNJ 1 at 16.

Undeniably, the respondent was a creation of statute, that is, the National Electric Power Authority Act, Cap. 256 Laws of the Federation of Nigeria, 1990. I agree with the learned trial judge that the said Act did not say anything with respect to the appointment and discipline of staff. However, it is glaring to me that from the contents of the National Electric Power Authority Handbook – Exhibit Q, the details of the conditions of service of the staff of the respondent are clearly spelt out.

I am of the considered opinion that although Exhibit Q was not stated to have been made pursuant to the Act establishing the respondent, I am satisfied that the said Exhibit Q clearly governed the employment of appellant with the respondent, such that I am prepared to hold and do hold that the appellant’s employment was with statutory flavour. However, I do not see how that finding will add any prosperity to the appellant’s case. He woefully failed to demonstrate that his dismissal was not in accordance with Exhibit Q

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and a fortiori, not in accordance with the Act which set up the respondent. Having found earlier in this judgment that the dismissal of the appellant was pursuant to Paragraph 33.02 of Section 3 of Exhibit Q, on account of gross misconduct, I am of the considered opinion that the dismissal of the appellant was not irregular nor null and void. In sum, I also resolve issues 2 and 3 against the appellant.

The appeal fails on all the issues ventilated and canvassed herein. In the end, the appeal is dismissed.

The judgment of Ajakaiye, J., in re suit No.FHC/E/CS/79/97 delivered at the Federal High Court, Enugu on 18th March, 2004 is hereby affirmed.

Each side shall bear own costs.

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Other Citations: (2016)LCN/8616(CA)