Edward Aiyetan V. The Nigerian Institute Of Oil Palm Research (1987)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
In this Suit which began in the Benin Division of the High Court of Bendel State, the appellant, who was Plaintiff therein, sued the respondent Institute claiming the following reliefs:
“(1) A declaration that the dismissal or purported dismissal of the Plaintiff by the Defendant as contained in a letter reference No. P.C. 1030/238 dated the 15th day of September, 1980 from the services of the Nigerian Institute for Oil Palm Research with effect from 15th September, 1980 is unlawful in that it is against the principle of natural justice, ultra vires, null and void and of no effect.
(2) A Declaration that the Plaintiff is still in the service of the Nigerian Institute for Oil Palm Research and is entitled to his full remuneration and leave Bonus from the date of the purported dismissal.
(3) A Declaration that the Plaintiff is also entitled to all his entitlements as an employee of the Defendant.
(4) A Declaration that the Plaintiff who is an employee to the Defendant be immediately re-instated.”
It is necessary to set down briefly the facts which culminated in this Suit. The Plaintiff as per his evidence was employed by the defendant on the 3rd day of March, 1952 as a daily paid worker at the rate of 2s, 3d, per day. When his appointment was confirmed in 1958 his post was made pensionable. He became an Assistant Executive Officer on Grade Level 06 in 1974 and was posted to the Plantations Management Division, General Duties under one Mr. J. N. Uwangue. As a paymaster the Plaintiff accompanied Mr. Uwangue and one Monday Okenwa and one Sadiku Jonali to the Standard Bank Benin City from NIFOR on 17th September, 1979 to collect salaries of daily paid workers. Owing to shortage of change, the plaintiff collected and took away from the Bank the denominations of monies that he originally asked for contrary to the specifications earlier supplied to the bank.
The Plaintiff claimed that he was advised on arrival at NIFOR, by Mr. Uwangue to send Monday Okenwa, his assistant, with the sum of N12,000 to the accountant to be changed into smaller denominations of N5 and N1 notes respectively. When Monday Okenwa did not return from the accounts division after 30 minutes, Plaintiff reported first to Mr. Uwangue and later to the Police that Monday Okenwa did not return with the N12,000.
As a result of Police investigation of the complaint lodged by the Plaintiff, the Plaintiff was charged along with Monday Okenwa and 4 others to Igue Kenwan Magistrate’s Court with the offence of conspiracy and stealing the sum of N12,000. During the course of the trial, the Plaintiff received a letter of interdiction which was tendered in these proceedings as Exhibit’ A’. The Plaintiff was subsequently discharged and acquitted of the charge on 3rd March, 1980.
By a letter dated 4/7/80 and received in evidence in these proceedings as Exhibit “C”, the Plaintiff was invited by the respondent to appear before the Board of Inquiry. The nature of the invitation, terms of reference of the Board of Inquiry. its report, are matters which are crucial in this case and I intend to deal with them later. For the moment the appellant claimed that the suggestions he made at the Board of Inquiry were subsequently implemented by the Respondent.
The report of the Board of Inquiry was tendered in the proceedings as Exhibit “G.” Subsequent to the report of the Board of Inquiry, the Plaintiff was dismissed by a letter dated 15th September, 1980 and tendered in the proceedings as Exhibit “D.” It is also pertinent to add here that the plaintiff claimed that he was entitled to pension and gratuity at the time he was dismissed. He also claimed that prior to that dismissal he did not receive any query and no charge was levelled against him. It is also pertinent to mention at this stage that the respondent, who was the defendant therein, counter-claimed as follows:- as set down in paragraphs 17 and 21:-
“(17) The Defendant avers that the Plaintiff took for his use instead of the use of the Defendant, the said N12,000 belonging to the Defendant entrusted with him as a servant. In the alternative the Defendant will contend that the Plaintiff by giving the said money to Monday acted negligently and in defiance of instructions and caused the loss of N12,000 to the Defendant ….
(21) The Plaintiff has failed to pay back to the Defendant the said sum of N12,000 despite repeated demands. Wherefore the Defendants Counterclaim against the Plaintiff is for N12,000 being that part of the Defendant’s money given to the Plaintiff to pay over to the Defendant’s employees as salaries on 17th September 1979 in NIFOR within Benin Judicial Division which amount the Plaintiff failed to pay to the Defendant’s employees or negligently caused to be lost in the course of his duties as paymaster in the Defendant’s employment.”
Following the claim by the Plaintiff set down above, pleadings were ordered, filed, and delivered. I do not propose to set down the entire pleadings. I will only set down paragraphs 10, 12, 13 of the Statement of Claim and paragraphs 4, 5, and 13 of the Statement of Defence which touch on the main issues on which this appeal revolved. These paragraphs were in these terms.
First the Statement of Claim:-
“(10) The Plaintiff says that on the 9th day of July, 1980, he was invited amongst others by the Defendant to appear before a Departmental Board of Inquiry set up by the Defendant to look into the loss of N12.000. The letter inviting the Plaintiff shall be founded upon at the hearing. The Plaintiff shall contend:-
(a) That the letter inviting the Plaintiff did not contain any formal charge or allegation of misconduct against the Plaintiff.
(b) That the Plaintiff attended the fact finding Enquiry
“ONLY” as a “WITNESS” and NOT as a person against whom a charge was made
(c) That the letter contained no terms of reference and that terms of reference, if any, cannot be regarded as formal charges preferred against the plaintiff.
(d) That at the enquiry. the plaintiff was asked to put up suggestions as to how best to avoid further loss of money. The Plaintiff gave some suggestions to the Board which the Defendant’s Institute had since implemented.
(11) That by a letter reference No. PC. 1030/238 dated the 15th day of September, 1980, under the signatory of B.O. Irusole, the Defendant purported to dismiss the Plaintiff from the services of the Defendant Institute. The said letter shall be founded upon at the hearing.
(12) The Plaintiff says that the letter of dismissal did not state:-
(a) the reason for his summary dismissal after 29 years meritorious services with the defendant Institute
(b) the alleged fact that arose from the Department Enquiry were never brought to the notice of the Plaintiff before his dismissal
(c) that the signatory on the letter did not say who directed him to dismiss the Plaintiff
(13) The Plaintiff shall contend:-
(a) that before dismissal, there was no formal charge of misconduct preferred against the Plaintiff
(b) at no time was there any query issued to the Plaintiff alleging any misconduct on the part of the Plaintiff
(c) the Plaintiff was never given an opportunity to defend himself if any, of any misconduct before he was dismissed
(d) that the Defendant unlawfully dismissed the Plaintiff for an alleged offence for which he had been adjudged innocent by a Court of competent jurisdiction.”
Then the Statement of Defence –
“(4) The Defendant admits paragraphs 2, 4, 8, 9 and 11 of the Statement of Claim
(5) The Defendant denies paragraphs 3, 5, 6, 7, 10, 12, 14, 15, 16 and
17 of the Statement of Claim and puts the plaintiff to the strictest proof thereof…………………………………..
(13) As a result of the conduct of the Plaintiff, the Defendant set up a Board of Enquiry into the loss of the N12,000 which Board found the Plaintiff grossly negligent in his handling of the money and the Plaintiff was dismissed. The Report of the Board of Inquiry will be founded upon at the hearing of this Suit.”
There was no specific averment as regards paragraph 13 of the Statement of Claim set down above. The appellant and respondent at the trial court gave evidence and called witnesses. On 23rd November, 1981 the learned trial Judge, Mojie Bare, J. gave judgment in which he dismissed the plaintiff/appellant’s claims in their entirety. “It does appear” he concluded “that from the stance of the plaintiff in this Court vis-a-vis his pleading in paragraph 6 of his Statement of Claim, this action was prompted by the threat posed by defendant’s Solicitor’s letter in demanding a refund of the N12,000”
The Appellant herein then appealed to the Court of Appeal (Omo-Eboh, Ete and Pepple J.J.C.A.) which on 13th December, 1984 dismissed the Appeal and Cross-Appeal of the Respondent herein. On the crucial matter of the breach or otherwise of the rules of natural Justice, the Court of Appeal, (per Pepple J.C.A. who wrote the lead judgment) referred to the Board of Inquiry Report Exhibit “G” and said-
“Reading through it, I cannot bring myself to agree with the Plaintiff that he was not given a fair hearing. Exhibit G shows that the Plaintiff was made aware of the defendant’s grievances against him and he was given an opportunity to answer them. He was not invited as a witness for no one person was on trial.”
He went on ………To satisfy the rules of natural justice it is not an immutable condition that a formal charge should be drafted and served on the person to be disciplined, and his representation called for. What is essential is that he should know the charges against him and be given an opportunity of answering them before he is punished.
Going by Exhibit G, extracts of which I have reproduced above, I am of the view that the defendant before it dismissed the Plaintiff from its services satisfied the requirements that he be informed of his wrong doing and be afforded the opportunity to defend himself” (Italics mine).
The Appellant then appealed to this Court. 4 Grounds of Appeal were originally filed but on 9th March, 1987 this Honourable Court struck out ground 4. While grounds 1 and 2 dealt with the peripheral issue of whether the Civil Service Rules applied to the Appellant and the relationship between the appellant and his employer, Ground 3 dealt with the complaint of breach of natural justice and indeed it was this ground that was argued before this Court. It is pertinent to mention that the respondent cross- appealed to this Court against the decision of the Court of Appeal which dismissed its counter-claim. I regard it as a peripheral issue in this appeal and I propose to refer to it briefly later in this judgment if only to correct what, with all respect, I regard as a misconception in the approach of the Court of Appeal to the issue.
Learned Counsel to the Appellant, F.H. Eduvie, Esq. had in appellant’s brief of argument set down in paragraphs (d) and (e) of the questions for determination the matters which I have stated are the main issues arising in this appeal.
These are –
“(d) whether the disciplining proceedings adopted by the Respondent could pass all legal tests as enunciated in relevant legal principles
(e) whether the rules of Natural Justice had been transgressed”
In argument before this Court, he complained of the use of Exhibit G against the appellant in the High Court and the Court of Appeal, Referring to Exhibit G the letter inviting the appellant to the Board of Enquiry, he contended that contrary to well established principles, the appellant was not informed that he was to explain the loss of N12,000, nor was he accused of any misconduct. For his part Learned Counsel for the Respondent, Chief C.A. Adogah, contended that Exhibit G complied with the rules of natural justice. He argued that from the contents of Exhibits C and G. the appellant would have known that his conduct was in issue. He claimed that after the Inquiry disciplinary action followed and the appellant was dismissed.
This Court is once more called upon to examine the principles of natural justice as they relate to disciplinary action taken against employees by public institutions. It is a healthy development that the Supreme Court, as the Court of last resort, should constantly and firmly pronounce on it, for it cannot be said too often that the twin pillars of the principles of natural justice carry our whole structure of a free society based on the Rule of law. Fair hearing and the principle of fairness are also entrenched in the provisions of Section 33(1) of our Constitution, the Constitution of the Federal Republic of NIGERIA, 1979. Besides, as public and private institutions have to deal with matters of discipline as they affect long serving staff, the Courts have a duty to point to the proper procedure that must be used in such matters. What then are these twin pillars They are usually expressed in the Latin maxims Nemo debet esse judex in propria causa (no man shall be a judge in his own cause) and audi alteram partem – the right to be heard. It is with the second that we are particularly concerned in this case. It simply means that each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it. See Cooper v. Wandsmith Board of Works 14 C.B. (N.S.) 1180. The rule requires that a person liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that be can make representations. More directly, a person against whom disciplinary action is proposed, must be clearly informed of the allegations against him and be given an opportunity to answer those allegations or charges before action is taken against him. Perhaps in more graphic and reverent terms, it was said in Dr. Bentley’s case (1723) R v. Chancellor of Cambridge University (1716) 1 Str 557
“Even God Himself did not pass sentence upon Adam before he was called upon to make his Defence.”
In Ridge v. Baldwin (1964) A.C. 40, 71-79 Lord Reid put the applicable principle in these words –
“So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence and explanation Req v Smith was another case of dismissal of a parish clerk and Lord Derman C.J. held that even personal knowledge of the offence was no substitute for hearing the officer; his explanations might disprove criminal motive or intent and bring forward other torts in mitigation.”
But perhaps the more positive statement on the applicable principles is the one made by Lord Denning in Kanda v Government of Malaya (1962) A.C. 322,337,338 P.c. In that case Inspector Kanda was dismissed purportedly pursuant to an article of the Constitution of Malaya which provided that on Merdeka Day “No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard’; The Inspector was obviously not given such opportunity for it was following the intervention of the Court at the hearing of the suit he instituted that a Report of a Board of Inquiry was made available to him. That report dealt with the evidence of each witness heard by the Board, and expressed views as to the credibility of each witness. It presented a most damning indictment against Inspector Kanda as an unscrupulous scoundrel, who had suborned witnesses both police and civilian to commit perjury. Inspector Kanda was never previously given an opportunity of contradicting that report which was available to the adjudicating officer in his case. Said Lord Denning, –
“In the present case Inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard. If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.”
See also Board of Education v Rice (1911) A.C. 179, 182 and Ceylon University v. Fernando (1960) 1 W.L.R. 223; (1960) I All E.R. 631 P.C; Malloch v. Aberdeen Corporation (1971) 1 W.L.R, 1578. These principles have been followed by this Court in several decisions. Perhaps the earliest in this line of cases is Adedeji v. Public Service Commission (1968) N.M.L.R. 102. There an Assistant Superintendent of Police accused of corruption was dismissed pursuant to General Orders No. 4107. Although he was previously served with a letter alleging misconduct to which he replied, it was contendered on his behalf on appeal that the full statement of the facts and evidence on which the Police Service Commission relied for his dismissal was never communicated to him in breach of the rules of natural justice. _Ademola, CJ.N. delivering the judgment of this Court said at page 107 ”
We are therefore not satisfied that when the circumstances of this case are looked into that adequate opportunity was given to the appellant to meet the case or the facts of the case known to the Commission. It is possible the appellant is corrupt and did not commit the offence alleged against him; this is not what we have to consider. Was the case against him sufficiently brought home to him that one can say that the requirements of natural justice were sufficiently observed on the facts and circumstances” (Italics mine)
This Court has in recent time examined these principles in the Cases of Buzugbe v. Civil Service Commission (1984) 7 S.C. 40; Falomo v. Lagos State Public Service Commission (1977) 5 S.C. 51, 61.; Attorney-General of Bendel State v. Wilson (1985) 1 N.W.L.R. (Pt.4) 572; The State Exparte Joseph Ajidele Olakunrin and 6 Ors. v. Oba Alaiyeluwa Ogunnoye, Olowo of Owo and 6 Ors. (1985) 5 S.C. 161, 193,283; Olaniyan v. University of Lagos (1985) 2 N.W.L.R. 599, 623 and Garba v. University of Maiduguri (1986) 1 N.W.L.R. (Pt. 18) 550, 603, 618. Some of which I shall presently advert to. How does all this affect the present case It is not in dispute that the appellant together with Monday Okenwa were prosecuted in the Magistrate’s Court for conspiracy and stealing of the sum of N12,000; that while Monday Okenwa was convicted of stealing and sentenced to 3 years 1 H.L. with no option of fine, the appellant was discharged and acquitted; that both Monday Okenwa and the appellant were discharged on the count charging them with conspiracy and that in the course of the trial the appellant was interdicted as per Exhibit “A” in these proceedings. Exhibit A stated in paragraph 2 that “pending the full report of the Police Investigation, the courts findings and a final decision on the role you have played, you should in the public interest, cease to exercise the powers and functions of your office.”
Subsequent to the discharge and acquittal of the appellant on 3rd March, 1980, he received Exhibit C dated 4th July, 1980. I ought to set down Exhibit ‘C’. It was a letter of invitation sent by Mr. A.O. Akpade, Member/Secretary. It was in these terms:
“Mr. E. Aiyetan,
A.E.O.,
N.I.F.O.R.,
DEPARTMENTAL BOARD OF INQUIRY INTO N12,000 (TWELVE THOUSAND NAIRA) INSTITUTE FUNDS REPORTED MISSING ON 17TH SEPTEMBER, 1979
As a result of the institution of the Board of Enquiry by the Institute, I am directed by the Board to invite you to appear before it on the 9th July, 1980 in the E.R.L.S. Division Hall at 10.00 a.m. prompt, to testify to the report of the loss of the Institute Funds of N12,000 on the 17th September, 1979. Please note that punctuality will be briefly observed” (Italics mine). There is nothing on the face of this invitation which could have given the appellant the notion that he was in the line of fire, or that his conduct was to be probed particularly as he must have felt that he had been discharged and acquitted by a Court. He was invited to testify to the loss of N12,000, not to his role in the loss. The heading of Exhibit C seems to suggest the nature of the Inquiry to which the appellant was being invited. The position seems even clearer on a close perusal of Exhibit G, the Report of the Board of Inquiry on which the Court of Appeal relied so heavily. In that Report the terms of Reference of the Board of Inquiry were stated to be:
“(i) To examine the circumstances of the loss of the N12,000 (Twelve Thousand Naira) being government funds
(ii) To examine the conduct and role and the part played by, any employee of the Institute in the matter;
(iii) To apportion blame and recommend disciplinary action where appropriate
(iv) To recommend any measures and safeguards which will prevent any re-occurrence of the loss of public funds in the institute
(v) To make any other recommendations which the committee may deem appropriate;
(vi) To submit a report on our findings and recommendations to the Director of the Institute, in fifteen (15) copies not later than four weeks from the date of this letter.”
Apart from paragraphs (ii) and (iii) above there is nothing which can remotely be said to affect the appellant. When the Board examined the role of any staff of the Institute, his role would inevitably be examined, but so would be roles of others including that of appellant’s boss, Mr. Uwangue. It cannot therefore be said that when on invitation the appellant was preparing to attend the sessions of the Board he would have felt that there was any charge against him.
In the course of the Inquiry, the appellant and 17 other members of staff were interviewed. At pages 8 – 10, and 69 – 77 of Exhibit G the appellant was asked several questions about this incident but, with all respect to the Court of Appeal, there was nothing in them that could suggest that the appellant was anything but a Witness in the Inquiry. The Panel started by saying to the appellant-
“This Panel is set up to look at the whole episode at a departmental level and we know you were one of the people responsible for effecting payment to workers on that particular day, can you tell us in detail what led to the loss of this money”
The appellant started his testimony by saying-
“I don’t think I should say much as the judgment has been forwarded to the Director” (The judgment was of course the judgment of the Magistrate’s Court discharging and acquitting him). During the question and answer session the Panel after asking questions more directly related to the incident and the respective roles of the appellant. Mr. Uwangue and Monday Okenwa, asked such general questions as-
“When you came back to the Head Office you were told to go back to the same Plantations Management Division where you have worked, before us, what will be your suggestion to safeguard any further loss of money”
To which the appellant replied –
“I will suggest that most of the senior workers should receive their money through the bank e.g. from level 04 downwards should be paid in the Station. The clerical set-up in Plantations Management Division is not good at all. It does not embrace efficiency. It must be well staffed. Again I suggest that the Police should remain on the spot of pay until after payment. Furthermore, it is very improper for the administrative staff to handle such a huge sum of money when he is not a trained accountant. If Accounts Branch cannot do the payment of other workers they should send Account forms.”
The exchanges were no more than could be expected between a witness, which is what the appellant was, and a Panel. It has never been the law that merely being a witness in such an inquiry satisfies the requirements of natural justice. In the Garba v. University of Maiduguri case (Supra) 104 witnesses, including the students who were ultimately expelled as being Involved in the rampage, gave evidence but this Court held that there was no fair hearing. At page 603 of the report of that case I said that –
“The appellant being among the 104 witnesses allegedly interviewed can be said to have been “heard” but they cannot having regard to the principles of natural justice discussed above, be said to have had an opportunity of knowing the case they were to meet or an opportunity of being heard in reply to the serious allegations made against them”
Oputa, J.S.C. in the same case, at page 618 put it this way-
“It is my humble view that fair hearing implies much more than hearing the Appellants testifying before the Disciplinary Investigating Panel; it implies much more than summoning the Appellants before the Panel, it implies much more than staff and students testifying before the Panel behind the backs of the Appellants, it implies much more than the Appellants being “given a chance to explain” their own side of the story” To constitute a fair hearing whether it be before the regular Courts or before the Tribunals and Boards of Inquiry, the person accused should know what is alleged against him.”
The Board of Inquiry in the instant Appeal recommended that Mr. E. E. Aiyetan (appellant herein) be dismissed from the services of NIFOR as a lesson to other workers. It was the view of the Board that “it (was) the height of indiscretion that an officer of Mr. Aiyetan’s status and experience should give out N12,000 public funds entrusted to his care to a daily paid office attendant for whatever reason without providing adequate transport and security coverage for the money in accordance with Financial Regulations”
Without any further query to the appellant, and without even making available to the appellant the report of the Inquiry which had made such adverse comments, if any, the Respondent dismissed the appellant as per a letter, Exhibit D in these proceedings. It read –
“Dismissal
I am directed to inform you that arising from the findings against you by the Departmental Board of Enquiry into the loss of N12.000 Institute fund on the 17th of September. 1979, it has been decided to dismiss you from the service with effect from today, the 15th September, 1980.”
I cannot come to any conclusion on this part of the appeal without adverting to the case of The Head of the Federal Military Government and Commander-in-Chief of the Armed Forces v The Military Governor of Mid-Western State of Nigeria (1973) 12 S.C. 23 which was brought to the attention of this Court by a letter dated 1st April, 1987, a letter which arrived after the conclusion of arguments. In that case, an applicant Ambrose Iguade Obiyan, brought an ex-parte application in the High Court Benin in which he sought leave to apply for an order of certiorari to remove into the court for the purpose of being quashed the revocation of his appointment as a member of the Public Service Commission of the Mid-Western State. Among the grounds of complaint was that –
“the 1st Respondent acted contrary to rules of natural justice in that, (a) he revoked the appointment of the applicant without affording the applicant sufficient opportunity to defend himself;”
The grounds specified in Section 61(5) of the Constitution of Mid-Western Nigeria as modified by Sections 3 and 4 of the Constitution (Suspension and Modification) Decree No. 1 of 1966 were-
“A member of the Public Service Commission may be removed from office by the Military Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour”
The Learned Chief Justice of Mid-Western Nigeria refused leave and an appeal was filed to this Court. After extensive argument and references to Dicta by Law Lords in Wiseman v. Bornman (1969) 3 All E.R. 275; Pearlberg v. Varty (1972) 2 All E.R. and Furnell v. Mangari High Schools Board (1973) 1 All E.R. 400 on the issue whether where a statute does not provide for a particular mode of removing a public officer, as well as in those cases where a set of regulations prescribed a clear procedure, the Court should import the principles of natural justice, this Court concluded that-
“We therefore think that there was no unfairness about either the dismissal or the mode of dismissal of the appellant by the Governor who was not required by statute to conduct an inquiry or to obtain his explanation before acting as he did in the exercise of his administrative function. And the law does not permit the Court to re-draft the relevant provision of the Constitution, namely, Section 61(5), in order to oblige the Governor to observe the principles of natural justice.”
This Court held that courts should be slow to import the principles of natural justice where the statute has deliberately provided for the mode of removal without incorporating the principles of natural justice. With respect, the situation in the instant appeal is different. Section 61(5) of the Constitution of Mid Western Nigeria provided for the grounds of the removal of the applicant in the case just discussed.
The Nigerian Research Institutes Act, 1964, under which the Respondent was set up did not provide for any grounds for the removal of its staff. Even Section 7 thereof which had empowered the council of each Institute to make regulations generally for its purposes under the Act, which regulations were to provide for the disciplinary control over staff of the Institute, had not been given effect to. In such circumstances, it is my view that recourse must he had to the rules of the common law and equity and of course to Section 33(1) of our 1979 Constitution.
Further, it is correct, as contended by the learned counsel to the Respondent in the letter earlier referred to that the principles of natural just1ce ought to be considered in the circumstances of each case., but it may be rewarding to look at a fuller statement of Tucker L J, in Russell v. Duke of Norfolk (1949) 1 All E.R. 109, 118-
“The requirement of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which had been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. In the present case I can see nothing manifestly unfair about the procedure which the statute enjoins to be followed by the tribunal set up under Section 28 of the Finance Act, 1960”
The Court of Appeal was right in holding that it is not necessary that the person concerned be served with a formal charge, but were certainly in error when they proceeded to hold that the respondent satisfied the requirement that appellant be informed of his wrong doing and be afforded the opportunity to defend himself. From all I have said therefore, I hold that the appellant was not informed of the case against him nor given an opportunity to defend himself. This was a serious and fatal breach of the principles of natural justice. This should have been all that needed saying to dispose of this appeal. I shall, however, touch on one of the peripheral issues if only because of the cross-appeal of the respondent. On that counter-claim the respondent had claimed N12,000 from the appellant. The Court of Appeal dismissed the respondent’s cross-appeal on it. In the lead judgment of the Court Pepple, J.C.A. said at page 117 of the record-
“Defendant as the employer of plaintiff could dismiss him from its service for being so negligent as to occasion the loss of the huge sum of N12,000. Defendant could also recover from him the said sum of N12,000. But I am not convinced that defendant can justifiably inflict both penalties on plaintiff for the one offence”
Although I do not see much substance in the counter-claim, I do not agree that this is a credible reason for refusing it. The learned trial judge had rather dismissed the counter-claim on the ground that it was statute-barred. The Court of Appeal disagreed with this holding that the Public Officers Protection Law Cap. 76, Laws of Bendel State could never give protection to the appellant. There is no doubt that the appellant was a public officer. “Public Service of the Federation” is defined in Section 277 of the 1979 Constitution of the Federal Republic of Nigeria as “service of the Federation in any capacity in respect of the Government of the Federation and includes service as-
(d) staff of any statutory corporation established by an Act of the National Assembly.”
By Section 274(1) (a) of the same Constitution the Research Institutes Act 1964 is an existing law and therefore is deemed to be an Act of the National Assembly. The respondent was therefore deemed to have been established by an Act of the National Assembly and the appellant was therefore a public officer in the service of the Federation. Section 2(a) of the Public Officers Protection Law of Bendel State provides that –
“2. Where any action; prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or indeed execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of ….. ”
The appellant was alleged to have taken for his own use N12,000 property of the Respondent on 17th September, 1979. The counter- claim was not raised until 14th April, 1981, a period of 19 months. I am of the view that the learned trial Judge was right in holding the claim statute-barred.
The Court of Appeal accepted a proposition that the Public Officers Protection Law does not protect a public officer against his master; that it does not protect the appellant against the Federal Government or its agents on whose behalf the public officer was performing the duty. No authority was cited in support of this very wide proposition for, as the Court rightly pointed out. I.G. P. v. Olatunji 21 N.L.R. 52 which held that protection is only available to a public officer who does the act in good faith in the execution of his public duty, was not of any assistance. The Public Officers Protection Act, Cap 16X Laws of the Federation, which is in the same terms as the Bendel State Law to which reference was earlier made is an Ordinance “to provide for the protection against actions of persons acting in the execution of public duties” I see nothing which would necessitate the exclusion of the Federal Government or any of its agents from the application of the Act. Even if the Public Officers Protection Act was not applicable, the counterclaim would still have failed. The Respondent was claiming the N12,000 ostensibly because of the appellant’s negligence. There was, however, no evidence on which such a claim could have been based. There was no evidence of the limit of authority of Monday Okenwa to whom appellant entrusted the N12,000. Although Monday Okenwa was said to be on leave, there was nothing to indicate that the appellant was officially notified of this. Indeed from the suggestions which the appellant made to the Board of Inquiry as set down in this judgment, it is doubtful if a case of negligence could have been made out against him.
In the light of all I have said, it seems to me superfluous to deal with the other matter which is whether the Civil Rules applied or not. Perhaps I should merely refer to the views of this Court as per Idigbe J.S.C. in Bashir Alade Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 at p. 56.
In the result, I would allow this appeal and it is hereby allowed. The judgment of the High Court of Bendel State dated 23rd November. 1981, and the judgment of the Court of Appeal, Benin Judicial Division, dated 13th December, 1984, are hereby set aside. In their place, I enter judgment for the appellant as per his claim in the High Court. For the avoidance of doubt, I grant the following declarations:-
(a) A Declaration that the dismissal of the Plaintiff (appellant herein) as contained in a letter Reference No. pc. 1030/238 of 15th September, 1980 from the services of the Defendant Institute with effect from 15th September, 1980 is unlawful in that it is against the principles of natural justice, ultra vires, and of no effect
(b) A Declaration that the Plaintiff (appellant herein) is still in the service of the Defendant (Respondent) Institute, and that he is entitled to his full remunerations and leave bonus since his interdiction and dismissal.
(c) A Declaration that the Plaintiff (appellant herein) is also entitled to all his dues as an employee of the Defendant (Respondent)
(d) A Declaration that the Plaintiff (Appellant herein) who is an employee of the Defendant (Respondent) be immediately re- instated by the Defendant Respondent.
The respondent’s counter-claim is hereby dismissed. I award costs fixed at N300 in favour of the appellant.
SC.189/1985
