Dornier Aviation Nig Aiep Ltd. V. Captain Tunde Oluwadare (2006)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

The respondent in this appeal as plaintiff, instituted an action against the appellant, as defendant, at the Kaduna State High court for the following reliefs as contained in his further and better amended statement of claim dated 17th April 2000:

1. “A declaration that the order from the Defendant to the Plaintiff to go through a complete type-rating Training Course on the DO 228, the suspension, demotion and dismissal of the Plaintiff by the Defendant under its employment is wrongful, unmerited, unwarranted and a breach of the Conditions of Service of the Plaintiff with the Defendant.
2. A declaration that the suspension, demotion, order to go through a complete Type-rating Training Course on the DO 228 and dismissal of the Plaintiff by the Defendant under its employment is wrongful and against the Principle of Natural Justice.
3. An order of this Honourable Court compelling and/or commanding the Defendant to pay unto the Plaintiff as Special Damages:

(a) the sum of N4, 397, 483.45 as special damages suffered by the Plaintiff as a result of the suspension, demotion which metamorphosed into dismissal.

(b) The Defendant (sic) contractual benefit i.e. Pension, National Provident Fund, Housing Scheme, worked out in accordance with the Rules and Regulations set out in the Defendant’s conditions of service and/or Rules and Regulations set out by the Federal Government of Nigeria.

4. An order of this Honourable Court compelling and/or commanding Defendant to pay unto the Plaintiff the sum of N53, 750.00 as GENERAL DAMAGES.
5. An order of this Honourable Court compelling and/or commanding the Defendant to pay unto the plaintiff the sum of N7, 000, 000.00 as NOMINAL DAMAGES.
6. An order of this Honourable Court compelling and/or commanding the Defendant to pay unto the Plaintiff

(a) Interest at the rate of 16% per annum of the total sum of special damages and general damages, items (3) (a), (b) and 4 above, from 30/08/98 till date of judgment.

(b) Interest at the rate of 16% per annum on the total sum of special damages and Nominal damages under items 3 (a), (b), (4) and (5) above from the date of judgment until payment of the judgment debt

7. Any other relief or order, which the Court may deem fit to grant or make in the circumstances.”

The facts that gave rise to this appeal, as can be gleaned from the printed record and the briefs of argument of the parties are as follows. The respondent was a senior captain in the employment of the appellant. On 1/2/98 he and a co-pilot were scheduled to fly a DO 228 aircraft when an incident occurred. After starting one of the engines the aircraft suddenly began to roll forward and all efforts to stop it were to no avail. The respondent was eventually able to manoeuvre the aircraft to a stop thereby avoiding colliding with another aircraft, which was parked directly ahead of it. In the process however the right wing tip of the aircraft hit a flag pole resulting in some damage to the wing tip bulb.

On 18/2/98 the management of the appellant set up an investigating panel to ascertain the cause of the incident. The investigating panel submitted its reports (majority and minority) to the Managing Director of the appellant. The investigating panel found that the improper use of the procedures laid down in the Pilot Operating Handbook led to the incident. As a result of the reports, by a letter dated 20/4/98, the respondent was suspended from duty for three months, demoted to the rank of Senior First Officer and ordered to go for a complete Type-rating training course on the DO 228. The respondent served the suspension. However he was eventually dismissed by the appellant vide a letter dated 30/7/98.

Following his dismissal the respondent instituted this action before the Kaduna State High Court. The parties exchanged pleadings and joined issues thereon. At the trial the respondent testified and called five other witnesses, while the appellant called one witness. Twenty-one exhibits were tendered. At the conclusion of the trial the learned trial judge entered judgment in favour of the respondent for most of his claims. The judgment is at pages 267- 294 of the record. At page 294 the learned trial judge held as follows:

“Accordingly I do enter judgment for the plaintiff against the defendant in the following terms:

1. “That the order from the defendant to the plaintiff to go through a complete Type-rating training course on DO 228, the suspension, demotion and dismissal of the plaintiff by the defendant are wrongful, unwarranted and a breach of the defendant’s condition of service.
2. That as a result of the wrongful and unwarranted actions of the defendant, the defendant shall pay to the plaintiff as SPECIAL DAMAGES:

i) N805, 646.45 being total loss of income b/w April and July 1998 as a result of the suspension and demotion of the plaintiff.

ii) N2, 091, 837.00 being gratuity payable to the plaintiff for the 8 years service with the defendant.

iii) N500, 000.00 being a reasonable amount for the legal service employed by the plaintiff.

3. That the defendant shall pay to the plaintiff the sum of N53, 750.00 being general damages.
4. That the defendant shall pay to the plaintiff an interest at 10% p.a. on the total judgment sum with effect from the date of this judgment until the judgment sum is fully paid.

No costs awarded.”

The appellant being dissatisfied with the judgment has appealed to this court. Three notices of appeal were filed. However the appellant abandoned the first two and for the purposes of this appeal relies on the Notice of Appeal dated 5/4/02 at pages 308-319 of the record containing 20 grounds of appeal.

In compliance with the Rules of this Court the parties duly filed and exchanged their briefs of argument. The appellant’s brief is dated and filed on 20/8/02. The respondent’s brief dated 20/1/05 was filed on 3/2/05 pursuant to an order of this court. The appellant’s reply brief dated 5/4/05 was filed the same day.

From the 20 grounds of appeal the appellant in its brief distilled the following issues for the determination of the appeal:

1. “Whether in the circumstances of this case the Trial Court was right in its finding and declaration that the suspension, demotion, the order for the Respondent to undergo a type-rating training course on DO 228 aircraft and the eventual dismissal of the Respondent by the appellant are wrongful, unwarranted and a breach of the Appellant’s Conditions of Service.
2. Whether the Trial Court was right in its conclusion that the Respondent was denied fair hearing by the Appellant with regards to the actions taken against the Respondent by the Appellant.
3. Whether the awards of damages in favour of the Respondent against the Appellant are justifiable in fact and in law.”

The respondent in his brief adopted the appellant’s issue 1 for determination but also proposed an alternative issue 1. The respondent therefore raised the following issues for determination:

1. “Whether having regard to pleadings, evidence adduced and documents tendered the learned trial judge was right or justified to have entered judgment in favour of the Plaintiff/Respondent.
2. Was the Plaintiff/Respondent in the circumstances, and at all events leading to his dismissal accorded a fair hearing by the appellant.
3. Whether in the circumstances, and having regard to the evidence, the Plaintiff/Respondent is entitled to the damages awarded by the learned trial judge.”

The issues for determination raised by the respondent are in my view the same as those distilled by the appellant although expressed in slightly different words. This appeal shall therefore be determined on the issues formulated by the appellant.

At the hearing of the appeal on 13/2/06, Mr. I. B. Odigie, learned counsel for the appellant adopted the appellant’s brief of argument and reply brief and urged us to allow the appeal. Mr. V.I. Asika leading Mr. Austin Odoyi for the respondent adopted the respondent’s brief. He drew the court’s attention to the fact that the respondent had raised and argued a preliminary objection in his brief and urged us to dismiss the appeal with costs.

Before going into the merits of the appeal it is necessary to deal with the preliminary objection raised and argued by the respondent in his brief of argument. Order 3 Rule 15 (1) of the Court of Appeal Rules 2002 provides:

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting forth the ground of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.” (Underlining mine)

The provision of Order 3 Rule 15 (1) above is mandatory and failure to comply therewith is fatal to the objection. See: Emir of Kano Vs Agundi (2006) 2 NWLR (965) 572 at 587 A-E; Oforkire Vs Maduike (2003) 5 NWLR (812) 166 at 178. The respondent in this appeal failed to file a notice of preliminary objection at least three clear days before the hearing of the appeal as required by the rules. The objection raised and argued in the respondent’s brief is therefore incompetent. See: Nsirim Vs Nsirim (1990) 5 SCNJ 174 at 182-183. The preliminary objection is accordingly discountenanced.

I shall now proceed to consider the merits of the appeal. Both the appellant and the respondent argued issues 1 and 2 together in their briefs of argument. I shall also consider them together followed by issue 3. Issues 1 and 2 relate to the breach of conditions of service and observance of the rules of natural justice, specifically fair hearing.

Issues 1 and 2

It was argued in the appellant’s brief that what makes a dismissal wrongful is not the notion of the breach of the rules of natural justice but non-compliance with the conditions of service. Reference was made to the cases of: Olarewaju Vs Afribank Plc. (2001) 13 NWLR (731) 691 at 705 E-G and Adams Vs L.S.D.P.C. (2000) 5 NWLR (656) 291 at 320. Learned counsel for the appellant also submitted that in a case of wrongful dismissal, the trial court is not sitting as a court of appeal over the decision of the employer but as a reviewing body dealing with the legality of the exercise. In other words whether the employer followed the procedure laid down in the conditions of service including the observance of the rules of natural justice. He submitted that it is unlike an appeal where the court is dealing with the merits of the case. He relied on: NEPA Vs EI-Fandi (1986) 3 NWLR (32) 844 at 899 A-B; Gov. of Imo State Vs Nwauwa (1997) 2 NWLR (490) 657 at 697 B-H.

Learned counsel referred to a portion of the judgment at page 289 lines 11-17 of the record where the learned trial judge held as follows:

“Exhibit P5 is the binding terms of the relationship between the parties. When the parties decided on the conditions and terms of their contract, the conditions and terms must be observed. See Exhibit P6 too. The procedure followed culminating in Exhibit P4 and dismissal of the Plaintiff without regards to Exhibit P5 Article 12 is defective in for (sic) and substance. The demotion, suspension and ultimate dismissal of the Plaintiff are therefore wrongful and in breach of the condition (sic) of service binding the parties.”

Learned counsel submitted that one of the reasons for the court’s finding above was its view expressed at pages 282-284 lines 10-3 of the record that the investigation panel reached a wrong conclusion that the accident occurred because of the respondent’s wrong use of procedure. He observed that the court held that the incident occurred because the aircraft DO 228 was not airworthy at the time of the incident because its brakes were defective and that the respondent was not to be blamed. He submitted that the court was not trying a case of negligence but wrongful dismissal and therefore ought not to have concerned itself with the merit of the finding of the appellant’s panel or its decision but with whether the appellant followed the correct procedure. He submitted further that the trial court cannot substitute its own finding for that of the panel.

Learned counsel for the appellant submitted that Exhibit P4 suspended, demoted and ordered the respondent to undergo a type-rating course on DO 228 for “endangering the safety of the appellant’s personnel and equipment”. He submitted that “endangering the safety of the appellant’s personnel and equipment” is covered by Article 12d of Exhibit P5 (the appellant’s conditions of service), which deals with serious or gross misconduct, while Article 12c covers cases of serious indiscipline. He argued that the finding of the learned trial judge at page 289 lines 3-5 to the effect that the appellant failed to comply with Article 12c and at 284-285 lines 27-2 to the effect that there was nothing in Exhibits P1 and P9 to suggest that the respondent endangered the safety of personnel and equipment was therefore made in error. He submitted that the act complained of was covered by Article 12d, which contains no provision for the setting up of an ad hoc disciplinary body to try the respondent, which procedure the learned trial judge stated at page 289 lines 3-5 of the record should have been followed.

Learned counsel submitted that endangering the appellant’s equipment and personnel is punishable under Article 12d by summary dismissal. He contended that the appellant properly exercised its power under Article 12d even though it imposed a lesser punishment than that provided for therein.

Learned counsel for the appellant referred to page 285 lines 2-5 of the record where the learned trial judge found that there was no evidence of the minutes of the meeting held between the appellant’s Managing Director and the respondent’s Association to justify the issuance of Exhibit P4 and submitted that the issue was not raised by the parties, either in their pleadings or evidence before the court. He submitted that the court had no right to raise the issue suo motu without giving the parties the opportunity of being heard. He relied on: Kafaru Oje & Ors. Vs Babalola & Ors. (1991) 5 SCNJ 110 at 121 lines 28-43; Ajuwon Vs Akanni (1993) 12 SCNJ 33 at 44. He submitted that the act complained of is administrative and that there is nothing in Article 12 of Exhibit P5 requiring discussions with the Association, if held, to be in writing. He observed that in any event the trial court found at page 288 line 25 of the record that the respondent’s case was discussed with the Association. He submitted that there is a presumption of validity of administrative acts where there is no evidence to the contrary. He cited the case of: Shitta-Bey Vs A.G. Federation (1998) 61 LRCN 4328 at 4363 G-I.

With regard to the order for the respondent to go for type-rating training course on the DO 228, it is contended on behalf of the appellant that contrary to the finding of the trial court that the competence of the respondent was not questioned, his competence was in fact put into question when he appeared before the investigating panel since he maintained before them that releasing the start lock after starting the first engine was the correct procedure contrary to the experts’ view and the order prescribed in Exhibits P8 and P10 that the start lock is only released after both engines have been started. Learned counsel referred to Exhibit p9 (minutes of the investigation panel) pages 56 lines 2-31, 25 last 4 lines-26 lines1-2 and 6-7 and 56 lines 24-26. He submitted further that the order was in line with the recommendations of the panel. He also referred to the evidence of PW3 that the appellant has the right to call its staff to the ground school when necessary.

Learned counsel for the appellant contended that even if the appellant had not followed the procedure laid down in Exhibit P5 (not conceded), since the respondent had served his suspension he is deemed to have accepted all the conditions attached to it and the issue was no longer a live issue before the trial court. He referred to the case of: Morohunfola Vs Kwara Tech. (1990) 4 NWLR (145) 506 at 528 F-H. He also referred to the respondent’s acceptance of the salary attached to his new post as evidenced by his endorsements on his pay slips in Exhibit 20, particularly those for May and June 1998.

On the issue of dismissal learned counsel for the appellant argued that what necessitated the respondent’s dismissal was his refusal to obey the order to resume at the ground school for type-rating training course in accordance with Exhibit P4. He argued that the learned trial judge was wrong to hold that the order to go for type-rating training was unreasonable because the reasonableness of the order was not part of the respondent’s case. He submitted that in relying on the reasonableness of the order the court below was setting up a different case for the respondent. Learned counsel for the appellant submitted that a decision not based on the issues raised by the parties cannot be allowed to stand. He relied on: Idika Vs Esiri (1998) 5 SCNJ 202 at 219; Yakassai Vs Incar Motors (1975) ALL NLR 287 at 292; Adeniji Vs Adeniji (1992) 4 SC 10 at 17.

Learned counsel submitted that the respondent’s dismissal was not unlawful because under Article 12d the appellant has the power to summarily dismiss him. He cited the case of: Osakwe Vs Nig. Paper Mill Ltd. (1998) 61 LRCN 4298 at 4304 C-D; (1998)10 NWLR (568) 1. He referred to Exhibit P21 written to the appellant by the respondent wherein he stated that he would only resume duty at the ground school on the condition that he was reinstated as captain and submitted that disobedience ranks as the worst form of misconduct in any establishment and usually attracts summary dismissal. He relied on: Olatunbasun Vs NISER (1988) 5 NWLR (80) 25 at 55; Yusuf Vs U.B.N. (1996) 6 NWLR (457) 632 at 647 D; Maja Vs Stocco (1968) ANLR 142 at 151.

Learned counsel submitted that under Article 12d only the Managing Director has the power to dismiss. He submitted that the reference to the power of the Departmental Manager to suspend or recommend dismissal does not fetter the discretion of the Managing Director to dismiss summarily. He contended that what Article 12d does is to limit the powers of the Departmental Manager. He argued further that in any event it is an administrative act, which is presumed correct. He referred to: Shitta-Bey Vs A.G. Federation (supra).

On the issue of fair hearing Mr. Odigie submitted that once the appellant had complied with the conditions of service the issue of fair hearing does not arise. He cited the following cases in support of this proposition: Olarewaju Vs Afribank Plc. (2001) 13 NWLR (731) 691; Adams Vs L.S.D.P.C. (2000) 5 NWLR (656) 291. He observed that the trial judge at page 288 lines 19-25 of the record held that the respondent was treated fairly but went on to hold that there was a breach of fair hearing arising from the wrong conclusion in Exhibit P4 that the respondent’s act amounted to gross misconduct and because the respondent’s case was referred directly to the Managing Director, the same person who set up the investigating panel. He submitted that a wrong conclusion could not be the basis of treating an administrative action as unfair. He referred to: NEPA Vs EI-Fandi (supra) at 898 G and Gov. of Imo State Vs Nwauwa (supra) at 697 B-H.

Learned counsel further submitted that under Article 12d only the Managing Director has the power to dismiss. He noted that the respondent did not challenge this provision of Exhibit P5 at the trial and therefore the trial court could not decide on the fairness of the action on this basis. He urged us to resolve issues 1 and 2 in favour of the appellant.

Before considering the submissions made on behalf of the respondent it is necessary to make some observations on the purpose of a respondent’s brief. In his reply brief learned counsel for the appellant observed that the respondent had advanced arguments in support of the judgment that are not based on any of the grounds of appeal filed.

A respondent’s brief is filed by the respondent to react to the specific issues for determination raised and argued in the appellant’s brief and to advance arguments in defence of the judgment appealed against. See: Ajomale Vs Yaduat (No. 21 (1991) 5 NWLR (191) 266 at 285 D-E. The issues argued in the appellant’s brief must be based on the grounds of appeal filed. The respondent is at liberty to formulate different or alternative issues for determination but such issues must be consistent with the grounds of appeal filed by the appellant. See: Onifade Vs Olayiwola (1990) 7 NWLR (161) 130 at 157.

Where the respondent desires the judgment appealed against to be affirmed on grounds other than those relied upon in the judgment he must file a respondent’s notice. This procedure is provided for in order 3 Rule 15 of the Court of Appeal Rules 2002. See also: Zimit Vs Mahmoud (1993) 1 NWLR (267) 71 at 87 F-G; American Cynamid Vs Vitality Pharmaceuticals Ltd. (1999) 2 SCNJ 42 at 52-54. In the absence of a respondent’s notice or a cross-appeal any arguments in the respondent’s brief in support of issues not based on any ground of appeal are irrelevant and will be discountenanced by the court. See: Okeke Vs Oruh (1999) 6 NWLR (606) 175 at 192 E-F.

In reaction to the appellant’s submissions regarding issues 1 and 2, Mr. Asika, learned counsel for the respondent agreed that in a master/servant relationship, where conditions of service exist, the termination of an employee’s appointment must be done in accordance with the conditions of service. He relied on: P.H.M.B. Vs Ejitagha (2000)11 NWLR (677)154 at 160 A-B.

In reply to the submission of learned counsel to the appellant that the demotion of the respondent was in order because his competence was called into question before the investigating panel and because Article 12 of Exhibit P5 provides for the demotion of an employee, Mr. Asika submitted that there was no evidence of incompetence against the respondent for the following reasons:

(a) that he underwent a proficiency flight test approved by the Minister of Aviation one and a half months after the incident, and passed;

(b) that he flew the aircraft in question two days after the incident and on subsequent days;

(c) that he did not receive a query regarding his competence; and

(d) that the order amounted to a revocation of his type-rating licence, which only the Minister of Aviation has the power to revoke.

A careful examination of the judgment shows that the learned trial judge did not base his decision on the respondent’s demotion on the issues canvassed above by the respondent. The submissions made on behalf of the respondent at pages 9-16 paras 1.01-1.02, 1.04, 2.00-2.06 of his brief in this regard, in the absence of a respondent’s notice must be and are hereby discountenanced.

At page 10 paragraph 1.03 of his brief, learned counsel for the respondent submitted that no evidence was elicited from either the respondent (PW1) or the training captain, Oluwale Adekola (PW4) under cross-examination to show that he was incompetent.

On the order to go for type-rating training course on DO 228 it was argued at pages 17-20 paragraphs 1.00-3.00 of the respondent’s brief that the order amounts to a revocation or cancellation of Exhibit 11, the respondent’s licence, which was validly renewed by the Minister for Aviation under Section 16 (3) & (4) of the Civil Aviation Act Cap. 51 L.F.N. 1990, and accordingly a usurpation of the Minister’s powers. It was also argued that the onus was on the appellant to prove that the Minister had empowered the appellant to cancel the appellant’s type-rating. Again these are issues not raised or argued in the appellant’s brief and there are no grounds of appeal filed in respect thereof. The respondent did not file a respondent’s notice. The submissions therefore go to no issue.

With regard to the suspension of the respondent, learned counsel submitted that the only officer who has the power to suspend an employee without pay or who can recommend his dismissal to his Departmental Manager. He referred to Article 12d of Exhibit P5 and the finding of the learned trial judge at page 289 lines 6-10 of the record. In response to the appellant’s contention that the respondent’s suspension was no longer a live issue before the court because he had served it, learned counsel submitted that the pleadings and evidence before the lower court bear out the fact that the respondent never accepted his suspension.

On the issue of dismissal, learned counsel for the respondent submitted that his dismissal was based on an allegation of absence from duty as contained in Exhibit P19 and not as a result of the incident of 1/2/98. He contended that Exhibit P4 concluded the incident of 1/2/98 and that the issue of absence from duty is a separate matter. He submitted that absence from duty is covered by Article 5f of Exhibit P5 and that it would only invoke the disciplinary measures spelt out in Article 12. In the succeeding paragraphs at pages 22-25 paragraphs 2.0-2.05 of his brief learned counsel went on to discuss the procedure for disciplinary action under Article 12a, b and c. The submissions in these paragraphs do not address the submissions of the appellant on the issue of dismissal and are not covered by any of the grounds of appeal. In the absence of a respondent’s notice, as observed earlier, these submissions go to no issue.

On the procedure for dismissal under Article 12d learned counsel for the respondent argued that even if the allegation in Exhibit P19 warranted summary dismissal, the respondent’s Departmental Manager must first recommend the dismissal and that before the dismissal there must be consultations with the Managing Director. He submitted that the Managing Director (PW 3) could not summarily dismiss the respondent without a query or without the recommendation of the Departmental Manager. He submitted that there was no such recommendation and that the respondent’s Association, NAAPE, was not informed of his impending dismissal within 5 working days as stipulated in Article 12d. He argued that the provision is mandatory. He submitted that where conditions of service exist the laid down procedure must be followed. He cited the case of: Edet Vs Chief of Air Staff (1994) 2 NWLR (324) 41 at 58 D.E; Chukwumah Vs Shell Petroleum (1993) 4 NWLR (289) 512 at 560. He submitted that the decision of the lower court that the appellant breached the conditions of service was correct. He submitted further that what is relevant is whether the decision of the court was right and not whether its reasons were. For this submission he relied on: Agbeje Vs Ajibola (2002) 2 NWLR (750) 127 at 145 F-G.

On the issue of observance of the principles of natural justice in relation to the dismissal of the respondent, learned counsel contended that the appellant did not allege gross misconduct to warrant dismissal but absence from duty and therefore the procedure to be followed is that laid down in Article 12a-c of Exhibit P5. He submitted that since the appellant failed to comply with the provisions the issue of natural justice arises. He further argued that even if a disciplinary committee were set up (not conceded) the respondent was not informed so as to express his desire for his Association to participate. He submitted that the query and the respondent’s subsequent dismissal are null and void for breaching the principles of fair hearing. He cited the case of: Obot Vs C.B.N. (1993) 8 NWLR (310) 140. On when the Court of Appeal would interfere with the findings of the trial court he relied on: Awara Vs Alaibo (2002) 18 NWLR (799) 484 at 520 E-H.

In the appellant’s reply brief, Mr. Odigie referred to the respondent’s contention that under Article 12d only PW2, the respondent’s Head of Department, could suspend him without pay or recommend his dismissal. He submitted that this issue is not covered by the grounds of appeal and that the trial court did not find against the appellant for want of authority by PW3 the Managing Director, but on the ground that there was no proof of serious or gross misconduct to justify the suspension of the respondent. He argued that in the absence of a respondent’s notice, the respondent could not validly canvass this point. He cited: Dantata Vs Mohammed (2000) 78 LRCN 1422 at 1459-1460; (2000) 7 NWLR (664) 176.

With regard to the contention of the respondent that he was dismissed for being absent from duty, learned counsel referred to the judgment of the court at page 287 lines 17-19 and noted that in considering the propriety of the appellant’s action what the court considered was whether he was dismissed for refusing to obey a reasonable order or because he endangered the safety of staff and property. He also submitted that the learned trial judge considered the respondent’s dismissal under Article 12d and therefore the procedures canvassed by the respondent before the appellant could exercise its powers of dismissal are inapplicable. He submitted that in the absence of a cross-appeal challenging the basis of the dismissal as found by the trial court the respondent could not argue other grounds. He submitted that the duty of the respondent is to defend the judgment. He referred to: Ceekay Tenders Ltd. Vs General Motors Co. Ltd. (1989) 2 SCNJ 151; Adefulu Vs Oyesile (1989) 5 NWLR (220) 377 at 417 D-E.

The parties in this appeal all agree that their relationship is that of master/servant and that it is governed by the conditions of service, Exhibit P5. Once conditions of service exist between the parties the provisions contained therein are binding on them. Any disciplinary measures taken by an employer against an employee upon an allegation of misconduct, such as termination of employment or dismissal, must be in accordance with the laid down procedure as provided by the conditions of service. See: PHMS Vs Ejitagha (2000) 11 NWLR (677) 154 at 160 A-B; Edet Vs Chief of Air Staff (1994) 2 NWLR (324) 41 at 58 D-E.

From the submissions of both learned counsel the first issue to be considered is which of the provisions of Exhibit P5 governed the conduct complained of by the appellant in Exhibit P4, which led to his suspension, demotion and order to go for type-rating training. The relevant portion of Exhibit P4 reads thus:

“In the light of all the above with respect to your professional conduct we are left with no option but to conclude that your actions in the course of that incident were a gross professional misconduct leading to endangering the safety of company personnel and equipment simultaneously.” (Emphasis supplied)

The learned trial judge at page 289 lines 3-5 of the record held thus:

“Punishments in Exhibit P4 were meted out without complying with Article 12c of Exhibit P5. After receiving Exhibit P15 and an adhoc disciplinary committee the M.D. will then give his final verdict.”

He also held at page 284-285 lines 27-2:

“In view of Exhibit P15 I do not see why Exhibit P4 should be based on P1 and P9. Strictly there is nothing in Exhibits P1 and P9 to suggest that the plaintiff has endangered safety of personnel and/or equipment.”

Article 12 of Exhibit P5 titled “Disciplinary Measures” is divided into four sub-paragraphs:

a. Disciplinary procedures.

b. Offences meriting termination.

c. Disciplinary Committee

d. Gross Misconduct.

Article 12b provides:

“For offences that can lead to the termination of an employee, the Departmental Manager will issue the official query requesting the employee to explain within 48 hours why disciplinary action should not be taken against him or her for an act of misconduct.”

Article 12c provides:

“Upon receiving the employee’s statement, an adhoc Disciplinary Committee consisting of appointed members of Management shall examine and deal with serious cases of indiscipline. If so desired by the employee, appropriate representatives of the respective union/association may be members of the committee.

Upon receipt of the report of the disciplinary committee, the Managing Director will give his final verdict on the appropriate disciplinary measure.” (Underlining mine)

Under Article 12d acts amounting to serious or gross misconduct, which may justify instant dismissal includes (a) endangering the safety of fellow employees, customers or customer’s representatives and (b) endangering the safety of company aircraft or other company vehicles.

It is clear from the provisions of Article 12 reproduced above that serious cases of indiscipline that could lead to the termination of an employee are different from acts amounting to gross misconduct, which may justify instant dismissal. I agree with learned counsel for the appellant that in so far as the appellant concluded in Exhibit P4 that the respondent’s actions were “a gross professional misconduct leading to endangering the safety of company personnel and equipment simultaneously” the applicable provision of Exhibit P5 was Article 12d. It follows therefore that the finding of the learned trial judge that the punishment in Exhibit P4 was meted out without complying with Article 12c was wrong and I so hold.

I have examined the pleadings of the parties and the evidence led at the court below and I agree with learned counsel for the appellant that the finding of the learned trial judge at page 285 lines 2-5 that there were no minutes of the meeting held between the respondent’s Association and the Managing Director to justify the issuance of Exhibit P4 is without basis as neither of the parties raised this issue. The learned trial judge had no right to raise it suo motu without affording the parties an opportunity to address the court on it. See: Yakassai Vs Incar Motors (1975) ALL NLR 287 at 292.

Now in Exhibit P4 the appellant clearly stated that although the respondent’s actions amounted to gross professional misconduct, it had decided in light of certain considerations to impose certain disciplinary measures on him. The measures spelt out therein were in lieu of summary dismissal provided for in Article 12d.

In: Olatunbosun Vs NISER (1998) 5 NWLR (80) 25 at 55 G the Supreme Court referred to its earlier decision in Sule Vs Nigerian Cotton Board (1985) 2 NWLR 17 at 19 where it held thus:

“A master who could lawfully dismiss a servant for disobedience and insubordination cannot be guilty of a wrongful act if he retired the same servant (on the same facts of disobedience and insubordination on humanitarian ground)…” (Underlining mine)

In light of the above, as held earlier, the provisions of Article 12d of Exhibit P5 governed the conduct complained of by the appellant in Exhibit P4 even though it imposed a lesser sentence than that provided for in Article 12d.

With regard to the demotion of the respondent and the order to go for type-rating training on the DO 228 aircraft the learned trial judge held at page 285 lines 21-28:

“From Article 12a of P5 it is clear that the defendant is vested with the power to demote an employee on the ground of incompetence. However the power could (sic) be exercised against the plaintiff in that the competence of the plaintiff was not questioned by the defendant, there is no evidence throughout to prove that the plaintiff was incompetent to operate the aircraft or that the incident was caused by his incompetence. His competence as a Captain has not been challenged. He cannot therefore be properly demoted under Article 12a of Exhibit P5.”

In my view the issue to be determined in this regard is whether under Exhibit P5 the appellant has the power to demote the respondent and order him to go for type-rating training and whether the procedure spelt out therein was duly followed with due observance of the rules of natural justice. It was held in NEPA Vs EI-Fandi (supra) at 898 G that the High Court is not meant to be another forum for the trial of the plaintiff. It was held that where an order of an inferior tribunal is correct in form, and the procedure leading thereto is also correct, the High Court would refuse to inquire into the reasonableness or other wise of the tribunal’s order.

This is because the High Court is not sitting as a Court of Appeal over the decision of the employer but as a reviewing body. See NEPA Vs EI-Fandi (supra) at 898-899 G-B. The court must not substitute its judgment for that of the inferior tribunal whose decision is being reviewed. What matters is the legality and not the correctness of the decision. See: Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (490) 657 at 697 B-H; Governor of Oyo State Vs Folayan (1995)8 NWLR (413) 292 at 322-323.

The learned trial judge in the portion of the judgment reproduced above rightly held that the appellant has the power to demote an employee on grounds of incompetence. He referred to Article 12a, which provides:

“In cases of incompetence, employees shall be given the opportunity to improve over a reasonable period, such period can be with or without demotion reflecting the level of competence, but the period shall not exceed six months maximum.”

In Exhibit P4 the respondent was demoted to the rank of Senior First Officer and given the opportunity to improve by being ordered to go for the type-rating training course. As to whether the correct procedure was followed and whether the appellant’s observed the principles of natural justice, the learned trial judge held at page 288 lines 19-25:

“On whether the plaintiff was treated fairly in accordance with the principles of natural justice and the rules governing the parties, it is my considered finding that the plaintiff was treated fairly in relation to the proceedings of the panel of investigation. He made personal appearances and was afforded adequate opportunity to state his case. See Exhibit P19 in general. Thereafter he was queried and he responded – exhibits P16 and P15 respectively. His case was discussed with the Association.” (Emphasis supplied)

He then went on to say at pages 288-289 lines 26-5:

“He was treated unfairly to the extent of the wrong conclusion in Exhibit P4 to the effect that his action in the course of the incident were gross professional misconduct. Additionally his case was directly referred to the M.D. who established the panel of investigation. Punishments in Exhibit P4 were meted out without complying with Article 12c of Exhibit P5.”

I have held in the course of this judgment that the provisions of Article 12c are not applicable to Exhibit P4. Having found that the rules of natural justice were duly complied with it was not for the learned trial judge to review the conclusion reached by the appellant that the respondent’s actions amounted to gross professional misconduct.

At page 286 lines 6-9 of the record the learned trial judge held that the appellant could not properly suspend the respondent because it failed to prove serious or gross misconduct arising from the incident of 1/2/98. Again, having found that the respondent was given a fair hearing before Exhibit P4 was issued, the learned trial judge, with due respect to him had no business re-investigating the incident of 1/2/98 or substituting his conclusions for that of the investigating panel.

In light of all that I have said above I hold that the suspension and demotion of the respondent and the order to go for type-rating training course were in accordance with the appellant’s conditions of service, Exhibit P5, and were therefore not wrongful.

With regard to the dismissal of the respondent, the learned trial judge held at page 287 line 23 – page 288 line 23 and at page 289 lines 6-10 as follows:

“By Exhibit P19 the defendant noticed that the plaintiff has failed to report for duty on the 22nd July 1998 following the expiry of the suspension and demanded for an explanation from the defendant.

The plaintiff responded with Exhibit P21…Apparently the plaintiff was finally dismissed because his response, Exhibit P21 was unacceptable to the defendant. By implication, Exhibits P19 and P20 considered, it is therefore apparent that the plaintiff was not dismissed for endangering the safety of personnel and equipment of the defendant. He was dismissed from the employment of the defendant for his failure to report on the expiration of his suspension. He did not report contrary to his oral testimony. This is made clear by the contents of Exhibit P21. Inter alia, he maintained that he was not going to report unless he was reinstated to his “rightful status as a Captain.”

By Article 12 (d) of Exhibit P5 the defendant can dismiss the plaintiff for refusal to obey a reasonable order. The point however that is the order to report to the ground schools a reasonable order? Based on the facts and circumstances of this case it is not. My earlier findings on the competence of the plaintiff are relevant in determining this point…

Likewise under Article 12 (d) of Exhibit P5 the Departmental Manager could suspend him without pay or could immediately recommend his dismissal. There is no evidence of compliance with Article 12 (d). Thus there is not (sic) evidence before the court that the Departmental Manager has suspended him or has recommended his dismissal” (Emphasis supplied)

Learned counsel for the appellant submitted that having found that the respondent failed to report to the ground training school after his suspension, the learned trial judge was wrong to hold that the order to go for type-rating training was unreasonable because the reasonableness of the order was not the respondent’s case.

Learned counsel for the respondent on the other hand argued that the dismissal was based on an allegation of absence from duty and that the procedure laid down in Article 12a-c ought to have been followed. As observed by learned counsel for the appellant the learned trial court made a definite finding that the respondent was dismissed for refusing to go for the type-rating training. He also held that by Article 12d of Exhibit P5 the appellant had the power to dismiss the the respondent for refusal to obey a reasonable order. The respondent has not challenged these findings by way of a cross-appeal. His contention that the dismissal was based on other grounds therefore goes to no issue.

Article 12d provides:

“In the case of gross misconduct by employee (sic) which may justify instant dismissal, the Dept. Manager may either suspend him without pay, or may immediately recommend his dismissal/termination. Prior consultation with the Managing Director shall be made before a decision to suspend, terminate or dismiss is effected.

Only the Managing Director has the right to dismiss or terminate an employee.” (Underlining mine).

I agree with learned counsel for the appellant that Article 12d prescribes the limits of the disciplinary powers of the Departmental Manager. The Departmental Manager may suspend without pay. However where he is of the opinion that the conduct warrants termination or dismissal, he may make recommendations to the Managing Director. The Departmental Manager must have consultations with the Managing Director before any decision on the suspension, termination or dismissal of the employee is effected. Thus the Departmental Manager cannot mete out any of the disciplinary measures without prior consultation with the Managing Director.

On the other hand there is no provision in Article 12d that places any restriction on the Managing Director’s right to summarily dismiss an employee. The court rightly found that the respondent refused to obey a lawful order. The appellant was therefore clearly at liberty to summarily dismiss the respondent for the flagrant act of disobedience and insubordination shown in Exhibit P21 and his subsequent refusal to report at the ground school. See: Olatunbosun Vs NISER (supra) at 55 F; Sule Vs Nigerian Cotton Board (supra).

I therefore hold that the suspension, demotion, the order for the respondent to undergo a type-rating training course on DO 228 aircraft and his eventual dismissal were in accordance with the conditions of service Exhibit P5 and accordingly with due observance of the principles of natural justice. Issues 1 and 2 are therefore resolved in favour of the appellant and against the respondent.

Issue 3

With regard to issue 3 learned counsel for the appellant submitted that the case is founded on contract and that general damages are not claimable in an action for breach of contract. He referred to: Barau Vs Cubbitts (1990) 5 NWLR (152) 630 at 646. On the award of N500, 000.00 as professional fees he submitted that being a claim for special damages it ought to have been strictly proved. He observed that although the learned trial judge noted in the judgment that there was nothing to support the evidence of PW6 that N1.5 million was paid he went on to award N500, 000.00 on the presumption that the plaintiff would pay for the services rendered to him. He also contended that there was no legal basis for the claim. He submitted that the award is not maintainable in law.

On the award of N805, 645.45 as special damages based on the loss of income during the period of the respondent’s suspension and demotion, he submitted that the success of this award depends on the resolution of issues 1 and 2 against the appellant. He submitted that the respondent did not work during the period and that allowances are only paid when on duty. He also referred to Section 17 (1) (b) of the Labour Act Cap. 198 Laws of the Federation of Nigeria 1990, and submitted that the appellant is not liable to pay the respondent because he was suspended for an offence. On the award of N2, 091, 832.00 as special damages, learned counsel submitted that if this court finds the dismissal wrongful the respondent would be entitled to the amount.

In response to the submissions on the award of damages, learned counsel for the respondent observed that the learned trial judge treated each head of claim separately and made findings on the specific items after properly evaluating the evidence before him. He referred to page 290 lines 26-29 of the record where the court found that the claim for N805, 646.45 was clearly established by Exhibits P14 and P20.

On the award of N2, 091, 832.00 he noted that the appellant in his brief had conceded this to the respondent if his dismissal was found to be wrongful. He also referred to page 292 line 20 of the record.

He submitted that the learned trial judge was justified in awarding the sum of N500, 000.00 as professional fees because PW6’s evidence that the fees had been paid even though no cheque was tendered was not challenged. He relied on: N.B.C. Plc. Vs Borgundu (1999) 2 NWLR (591)408.

He submitted further that the reference to the Labour Act in relation to the award of N805, 646.45 is a fresh issue, which this court ought not to countenance. He submitted that the sums of N2,091, 832.00 and N805, 646.45 are monies the respondent is entitled to whether his dismissal was wrongful or not. He referred to: Ulegede Vs Military Administrator Benue State (2001) 2 NWLR (696) 73 at 91-92. On the measure of damages in a case of wrongful dismissal he relied on: Nigerian Produce Marketing Vs Adewunmi (1972) 1 ALL NLR (Reprint) 199; Obot Vs C.B.N. (1993) 8 NWLR (310) 140 at 162-163 F-B.

Mr. Asika submitted that by Article 2 (i) of Exhibit P5 upon termination of his employment the respondent is entitled to his basic salary, which is N53, 750.00. He submitted that the learned trial judge correctly awarded this sum as general damages. He submitted that all the damages awarded flow from the established liability of the appellant to the respondent and that there is no reason for this court to interfere with the awards.

In his reply brief learned counsel for the appellant submitted that that award of N2, 091, 832.00 is predicated on gratuity. He submitted that under Article 12d of Exhibit P5 a dismissed employee is not entitled to gratuity.

With regard to issue 3, bearing in mind the fact that issues 1 and 2 have been resolved in favour of the appellant, I have considered the submission of learned counsel for the respondent that the respondent is entitled to his gratuity whether his dismissal was wrongful or not. The provisions of Exhibit P5, particularly Article 12, bind the parties. Article 12d provides that dismissal is immediate and without payment of terminal benefits such as gratuity, accrued leave, etc. This provision puts the issue of gratuity to rest. The other awards of special damages were based on the finding that the acts of the appellant were wrongful. In the light of my findings in respect of issues 1 and 2, issue 3 is resolved in favour of the appellant and against the respondent.

In conclusion this appeal succeeds. The judgment of the High Court of Kaduna State in Suit No. KDH/KAD/831/98 delivered by Hon. Justice T. Zailani on 15th January 2002 is hereby set aside.

Costs are assessed at N5, 000.00 in favour of the appellant.

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Other Citations: (2006)LCN/2153(CA)