Institute Of Health Ahmadu Bello University Hospital Management Board V. Mrs. Jummai R. I. Anyip (2011)
LAWGLOBAL HUB Lead Judgment Report
S. MUNTAKA COOMASSIE. J.S.C,
The respondent herein Mrs Jummai R. I. Anyip, was an employee of the appellant and was interdicted by the appellant on an allegation of theft of expired drugs. In exhibit 3, the appellant clearly stated that the respondent’s fate would be determined by the outcome of the report of an Administrative Disciplinary Committee which was set up to investigate the allegations against her. The committee went into action and conducted investigations into the allegation made against the respondent. In its report which was tendered as Exhibits 5 and 6 the respondent was exonerated and recommended to be reinstated to her employment. Nonetheless, the appellant dismissed the respondent from its employment.
Dissatisfied, with the action of the appellant the respondent instituted this action against the appellant at Kaduna State High Court herein referred to as the trial court.
The respondent as plaintiff claimed against the appellant thus:-
“(a) AN ORDER declaring the purported dismissal of the plaintiff’s appointment by the defendant as null, void, and of no effect;
(b) AN ORDER declaring the appointment of the plaintiff by the defendant as valid and subsisting.
(c) Payment of all arrears of salaries, allowances and other benefit to which the plaintiff has been entitled from the 11th of June, 1995, being the date of her interdiction from duty, until the determination of this suit”.
(d) AND, IN THE ALTERNATIVE to (a) (b) and (c) above, the sum of N350,000.00 as damages for wrongful dismissal”.
After the closure of the pleadings, both parties called their respective witnesses after which the counsel addressed the court. In its judgment the trial court dismissed all the plaintiff’s claims.
Dissatisfied with the trial court’s decision, the plaintiff successfully appealed to the Court of Appeal Kaduna Division herein called (lower court). The lower court found merit in the appeal and allowed same. The lower court unanimously held thus:-
“The condition of appointment of the Institute, as contained in Chapter 2 Section 5 of the Institute of Health Staff Regulations includes the following;
“The Institute may at anytime for good course terminate your engagement by two months salary in lieu of notice”.
No provision is made in the said condition of service for dismissal on an unproved allegation of stealing which charge is generally in a contractual relationship, an employer is not bound to state the reasons why an employee’s appointment is terminated. See Taiwo V. Kingsway Store Ltd 19 NLR 122, (ii) Obe V. Nigersol Construction Co. Ltd (1972) 2 University of Ife Law Report (pt. 2).
The appointment and termination of an employee is a matter strictly between the parties. However, the dismissal of the appellant by the respondent which is the fact in issue is subject to intervention of the court since the disciplinary committee has no jurisdiction to try the appellant for a criminal offence. There is therefore no hesitation in holding that the dismissal of the appellant’s appointment on the ground of stealing is null and void. The court will rule that the appellant is entitled to claim her salary and allowances from the date of interdiction to the date of the ceasing of the appointment, not dismissal. The court has no jurisdiction to impose a servant on an unwilling master, unless the appointment has a statutory flavour. In the case the onus will be on the employee who alleged that he was wrongly removed from the appointment to so show. See College of Medicine V. Adegbite (1973) 5 SC. See also Nigeria Airways Ltd V. Yahaya Ahmadu (1991) 6 NWLR (Pt. 198) at 493. Afri-Bank Nigeria Plc V. Christopher Obi Nwuaeze (1988) 6 NWLR Pt. 553 at 286.
There is no right of re-instatement for the appellant. In sum I find issue 1, 2, and 4 in favour of the appellant, and I allow the appeal in part”. See pp. 109 – 110 per Victor Omage JCA.
The appellant being dissatisfied with the judgment of the lower court had appealed to this court. In accordance with the provisions of the Rules of this court, both parties filed and exchanged their respective briefs of argument, The appellant in its amended brief of argument dated 30/10/2009 and filed on 19/2/2010 formulated two (2) issues for determination as follows:-
“1. Whether from the peculiar circumstance of this matter the court below was right when it held that the appellant’s dismissal was founded on an un-proven allegation of theft and thus rendering the dismissal null and void.
- Whether the appellant was deprived of her right to fair hearing in the disciplinary committee’s proceeding”.
Whilst the respondent in her brief of argument dated 30/6/2010 and filed on 5/8/2010 distilled a sole issue for our consideration as follows:-
“Whether in the entire circumstances of this appeal, the respondent has admitted or has been found guilty of the offence of theft as to warrant her dismissal from service by the appellant on the basis of the alleged offence”.
At the hearing of this appeal before us the learned counsel to the appellant adopted his amended brief of argument and urged this court to allow the appeal and set aside the judgment of the lower court and also to restore the decision of the trial court.
On the first issue for determination, it was submitted by the appellant’s counsel that the matter was fought on whether the respondent’s dismissal from service was right for her participation in the unauthorized removal of drugs and that parties were ad idem that the respondent removed the said drugs. It was therefore submitted that the conduct of the respondent amounted to gross misconduct in accordance with Section 811 Chapter 8 of the Rules And Regulations of the Institute of Health. The appellant’s counsel contended that the respondent made a voluntary admission of removing the said drugs and as a result where an employee has committed acts involving criminal offence, the employer can treat same as gross misconduct and liable to dismissal. Learned counsel continued and submitted that the employer is at liberty not to insist on prosecution of the employee for commission of crime, before dismissing him or her particularly where such an employee admits the commission of the crime. The following authorities were cited in support of the above submissions:-
(i) Olanrenwaju V. Afribank (2001) FWLR (pt. 72) 2008.
(ii) Yusuf V. U.B.N. Plc (1996) 6 NWLR (pt. 459) page 632 and
(iii) Uzendu V. U.B.N Plc (2009) 5 NWLR (pt. 1133) 1 at 13.
Learned counsel to the appellant further submitted that the issue of confession and compliance with the judge’s rules does not apply to this case as it is not a criminal trial. It was the contention of the learned counsel to the appellant that what transpired before the disciplinary committee is a mere matter of investigation of the removal of drugs without authorization which the respondent in her written statement admitted.
Now, learned counsel to the respondent adopted his brief of argument at the hearing before us and urged this court to dismiss the appeal. In support of the sole issue formulated by the respondent, the learned counsel submitted that the following facts are not in dispute i.e,
“(a) That the allegation of the theft against the respondent is a criminal offence.
(b) That the appellant set up an administrative disciplinary committee to investigate the allegation of the theft against the respondent and which committee issued its report, and
(c) That the appellant purports to dismiss the respondent from her employment based on the allegation of theft”.
Learned counsel contended that the appellant set up an administrative panel of investigation to investigate the allegation of theft of expired drugs against the respondent and the panel at the end of its investigation exonerated the respondent and recommended that she be recalled from interdiction and re-instated to her employment. Nonetheless the appellant dismissed the respondent. Learned counsel referred to the finding of the lower Court to the effect that the appellant is not competent to overturn the recommendations of its administrative panel when it did not have the benefit of hearing the respondent. It was further submitted that once the disciplinary panel exonerated the respondent of the allegation of theft against her, the proper venue to establish her guilt rests not on the appellant or the panel but on a court of competent jurisdiction, he relied heavily on the case of Dangote V. C.S.C. Plateau State (2001) 9 NWLR (Pt. 717) p. 132.
As earlier pointed out in this Judgment that the appellant in its brief of argument formulated two issues for our consideration, out of which only issue 1 was argued in the brief. Having failed to proffer any argument in respect of the second issue, the legal consequences is quite clear in my view, that the said issue has been abandoned. As a result, issue No. 2 in the appellant’s brief of argument is hereby struck out. I am fortified by the decision in the case of Odedo V. INEC (2008) 17 NWLR (Pt. 1117) 554 at 630 and Biariko V. Edeh-Ogwunke (2001) 12 NWLR (Pt.726) 235 at 266.
The issues for determination formulated by the parties in their respective briefs of argument are inter-related and inter-woven, and in the determination of this appeal, I will prefer the issue No.1 formulated by the appellant and I shall utilize same in determining this appeal.
The appellant has strongly submitted that once the respondent has admitted the commission of the crime, the appellant could summarily dismiss the respondent without having recourse to a court for the determination of whether she was guilty or not. While the respondent submitted that it was only a court of competent jurisdiction that could determine whether the respondent was guilty of the allegation or not. The lower court in considering this issue opined as follows:-
On the reversal of the recommendations of the disciplinary committee, by the appellant, the lower Court held as follows:-
“The disciplinary committee received the evidence of the appellant and that of the respondent, the committee did not recommend the dismissal of the appellant it is therefore not competent of the respondent who did not have benefit of hearing the appellant, to reverse the findings of the disciplinary committee, which it has constituted. I have written above that the dismissal of the appellant for unproven allegation of theft was wrongful. The evidence before the court below shows that the appointment of the appellant was made subject to certain terms and conditions contained in the letter of appointment dated 11th August, 1989” Per Omage JCA at page 109 of the record.
There was no ground of appeal, in my view, challenging the later findings of the lower court, it is my candid view therefore, that the said finding is still valid and subsisting. I refer to Odedo V, INEC Supra at 630.
My Lords, with this finding of the lower court which is subsisting, the lack of competence of the appellant to reverse the decision of the disciplinary committee has been decided and this would have put an end to this appeal. However, the question that is agitating my mind is, if the respondent in fact admitted the commission of the crime alleged, why did the appellant proceed to set up a “disciplinary committee” to investigate the allegation The appellant, in the letter of interdiction given to the respondent, clearly stated that the respondent’s fate would be determined by the outcome of the investigation by the “disciplinary committee”. It is therefore obvious that the appellant itself did not believe in the respondent’s guilt that was why it submitted the matter to the “disciplinary committee, to investigate. Thus having investigated the matter and found the respondent not culpable, the respondent ought to have been re-instated to her job. However, if the appellant strongly believed in the respondent’s guilt, the proper thing to do, is to submit the matter to a court of competent jurisdiction to determine since the allegation of crime or commission of crime is allegedly involved. See Dangote v. C.S.C. plateau State supra at P. 156. The respondent ought to be granted fair hearing. I refer to the statement of Fatayi Williams CJN in the case of Sofekun Vs Akinyemi (1981) 1 NCLR 121 or 1980) 5 – 7 SC.1 thus: –
“Once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair trial.”
It is necessary for a prior judicial determination before further disciplinary action could be meted out on a person accused of the commission of criminal offence to be heard. The Supreme Court has this to say in F.C.S.C. V. Laoye (1989) 2 NWLR (pt.106) p.652 at 706 – 707 per Oputa JSC thus:-
“Our system arrogates to the court the burden or some duty of pronouncing his guilt in an open court, where the facts are subjected to the acid test of effective cross-examination. To do otherwise will constitute an un-warranted attack on our system of criminal justice. …”
It is to be noted my Lords that the ‘disciplinary committee’, heard both the appellant and the respondent before concluding that the respondent herein, was not culpable. The only authority, I dare say, that could hold otherwise when an issue of criminality is involved is a court of competent jurisdiction.
In the circumstances this appeal lacks merit and is accordingly dismissed. The judgment of the lower Court is affirmed.
I must say, with tremendous respect, that the judgment of the lower court is a little bit confusing, and as it is, it may be very difficult for the respondent to execute the judgment and orders of the Court of Appeal. That being the case and this court being the final court of the land, something must be done to correct the situation. I invoke my powers under Section 22 of the Supreme Court Acts to correct the judgment of the lower court thus:
Judgment is hereby entered in favour of the respondent. General damages for wrongful dismissal is awarded to the respondent in the sum of one hundred thousand naira (N100,000.00).
The respondent is entitled to fifty thousand naira (N50,000.00) costs to be paid to her by the appellant.
Appeal dismissed.
SC.119/2003
