Mr. Ibrahim Jibril V. The Military Administrator, Kwara State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of Hon. Justice B. Orilonise of the Kwara State High Court, sitting at the Ilorin Judicial Division of the court delivered on the 16th of November, 2001. The appellant herein was the plaintiff at the High Court of Kwara State and the defendants herein the respondents.

The appellant was a staff of the 4th respondent, Kwara State Water Corporation and was a Principal Works Officer Grade 1. He was in the project unit. Sometime in 1995 based on some perceived irregularities, the 4th defendant set up an investigation panel headed by the 5th defendant which panel found the appellant guilty of gross misconduct. A Ministerial Disciplinary Committee was subsequently set up by the 3rd defendant which queried the appellant and consequently recommended to the Military Administrator his dismissal from service.

The appellant dissatisfied filed an action at the High Court against the respondents and claimed the following:

1. A declaration that the constitution of the Disciplinary Ministerial Committee by the Kwara State Ministry of Water Resources is incompetent, null, void and of no effect.
2. A declaration that the white paper on the findings and recommendations of the Disciplinary Ministerial Committee on losses of Japanese Grant Aid Materials Secured through the assistance of the Federal Government headed by the 2nd defendant who is the Chief Legal Adviser to the Kwara State Government and a Member of the State Executive Council predicated on the report of the panel on the investigation of the losses of Japanese Grant Aid Materials is incompetent.
3. A declaration that his dismissal from the service of the Kwara State Water Corporation vide a letter dated 29th June, 1998 is without just, reasonable and lawful cause and thus null, void and of no effect.
4. A declaration that the Kwara State Ministry of Water Resources is not competent to dismiss the plaintiff from employment of the Kwara State Water Corporation and the letter of 29th June, 1998 emanating from it is null, void and of no effect.
5. A declaration that the direction for refund of N1,717,867.00 against the plaintiff vide the letter of dismissal dated 29th June, 1998 is without just, and lawful cause, and thus null and void.
6. An order directing the plaintiff’s reinstatement into the services of the Kwara State Water Corporation in his substantive rank of principle works superintendent 1 with full payment of his salaries and allowance:

ALTERNATIVELY the plaintiff claims as follows:

(a) Unpaid salaries and allowances for the period of suspension, November, 1995 to June, 1998 totals 32 months at N3,682.00 per month = N117,824.00

(b) Salaries and allowances from present age of 47 years up to retirement age of 60 years totals 13 years at N43,884 per year = N590,593.00

(c) Gratuity upon retirement at 108% x annual salary x 3 years = N 131,652.00

(d) Monthly pension at 70% monthly salary = N2,177.00

(e) Leave Bonus from 1995 till retirement age of 60 years at N2,000 a year = N34,000.00

Grand Total = N876,246.00

Pleadings were filed and exchanged. At the trial, the appellant gave evidence for himself and called no other witness. He tendered exhibits A, B, C, D, & E. He tendered exhibits F & F1 and F2. Also stores requisition Nos. JM/26/94 and JM/17/3/95 respectively. Stores requisition form 40 A No. JM/ln5 dated 25/1/1995 admitted as exhibit G. The appellant’s reply to query dated 11/12/1995 admitted as exhibit G 1.

The respondent’s called three witnesses. D.W. 1 tendered exhibit which is the report of the Panel on Investigation of Stock of Japanese Grant Aided Material dated 3/11/95. The report of the disciplinary panel set up by the State Government was tendered as exhibit J.

At the end of the trial, the trial Judge found that the disciplinary procedure in the 4th defendant’s condition of service was strictly followed in the dismissal of the plaintiff. He also held that the plaintiff had failed to establish that his dismissal was null and void. The trial court dismissed all the claims. The appellant has appealed to this court against that judgment. Mr. J.S. Bamigboye, Mr. L.O. Abdulsalam with him appeared for the appellant and argued the appellant’s brief dated 9/5/2005 and filed on 10/5/2005. It was deemed filed on 21/6/2005. Mr. C.O. Toyin Pinheiro for the respondents argued the brief dated 28/10/2005 filed on 31/10/2005 and deemed filed on 26/1/2006.

The appellant’s counsel identified six issues for determination:

1. Whether the Ministerial Disciplinary Committee was competent to have tried the appellant and caused his dismissal upon allegation of fraud.
2. Whether the composition of the membership of the Investigation Panel and the Ministerial Disciplinary Committee did not breach the appellant’s right to fair hearing.
3. Whether any prima fade case of misconduct was made out against the appellant on the evidence before the trial court as to justify his dismissal.
4. Whether the procedure for discipline as contained in the appellant’s condition of service was complied with in the manner of the appellant’s dismissal.
5. Whether the Kwara State Ministry of Water Resources is competent to take over the functions of the Management and Board of Directors of the Kwara State Water Corporation in the discipline of the appellant.
6. Whether the decision of the trial court is not patently against the weight of evidence.”

The respondents’ counsel formulated five issues for determination:

“(i) Was the learned trial Judge correct to have held that the Ministerial Disciplinary Committee was competent to examine the allegation of the appellant, having regard to the evidence before the court?

(ii) Having regard to the evidence before the court below, was the learned trial Judge correct in holding that there was no evidence of bias or breach of appellant’s right to fair hearing?

(iii) Was the learned trial Judge correct having regard to the evidence before the court in holding that evidence of misconduct was established against the appellant?

(iv) Whether having regard to the facts and the evidence that emanated during the trial, the learned trial Judge was correct in holding that the dismissal of the appellant from service of the 4th respondent was correct?

(v) Did the learned trial Judge properly evaluate the evidence led by the parties?

I will adopt the first five issues as enunciated by the appellant’s counsel, which to my mind also encapsulate the issues raised in the respondents’ brief.

The 6th issue is in my humble opinion a repetition or fusion of the other five issues and it is superfluous.

Issue one is whether the Ministerial Disciplinary Committee was competent to have tried the appellant and caused his dismissal upon allegation of fraud. On this issue, appellant’s counsel had submitted that the trial court cannot substitute an allegation of fraud for gross misconduct in order to find in favour of the respondents.

The trial court could not sidetrack exhibit D which had stated frontally and pointedly that the appellant was dismissed on the recommendation of the Ministerial Committee for fraud in respect of stainless pipes. Learned appellant’s counsel submitted that where an allegation is one of crime, it cannot be tried nor established by anybody that is less than a court vested with criminal jurisdiction. He cited Alh. Abdullahi Baba v. (Nig.) Civil Aviation Training Centre, Zaria & Anor. (1991) 5 NWLR (Pt.192) 388, (1991) 7 SCNJ. 1 at D 15, University of Ilorin & Anor. v. Idowu Oluwadare (2003) 3 NWLR, (Pt. 808) Pg. 557 at Pg. 577 – 78.

He argued that the allegation of diversion of Water Pipes belonging to the Government of Kwara State in aid of water supply scheme is in substance an allegation of crime against the State. He submitted that the purported ‘trial’ of the appellant or charges of fraud by the Ministerial Panel is illegal and the dismissal founded on it is thus a nullity.

On this issue, learned respondents’ counsel’s argument is that the appellant did not plead that he was tried by the Investigating Panel for a criminal offence. He argued that the position taken by the appellant’s counsel is not borne out by the evidence before the trial court on the nature of the allegation as contained in exhibit B and the finding of fact made by the learned trial Judge. He argued that the respondents as employers had the authority to conduct investigation on any allegation made against an employee. He cited Edet v. Chief of Air Staff (1994) 2 NWLR (Pt. 324) Pg. 41.

The respondents’ counsel argued adamantly that it is not the case of the appellant that he was tried by the 4th or 5th respondent of any crime. He argued that the evidence of the appellant was that he was called as a witness and that paragraph 11 of the statement of claim confirmed this. He argued that the appellant is now trying to set up a different case from the case in his pleadings. He submitted that since the case of the appellant was that he was not tried by the panel for criminal offences, the learned trial Judge was right in holding that the Investigation Panel and the Ministerial Committee were competent to look into or investigate the allegations in issue.

With the greatest respect, I feel this argument is misconceived. Paragraphs 18 – 20 of the appellant’s statement of claim are set out below.

18. The plaintiff avers that before the investigation panels no allegation whatever were against him, neither was he made to confront any witness, or was he informed he was on trial for fraud or any offence whatever.
19. The plaintiff aver that since April, 1996 he never heard anything about the alleged losses of the Japanese Grant Aid Materials until July, 1998 when he was served with a letter dated 29th June, 1998 dismissing him from services of the 4th defendant and emanating from the 3rd defendant alleging serious fraud against him and ordering a refund of N 1,717,867. The letter is pleaded. The plaintiff shall contend that the procedure for suspension, dismissal and general discipline applicable to him was not complied with. The condition of service is pleaded.
20. The plaintiff avers that fraud is a very serious criminal offence but till now he has not and has never being arraigned before any court of law.

It was clearly pleaded by the appellant that even though the appellant was called as a witness no allegation of the offence of fraud was made against him before the Disciplinary Committee advised that he be dismissed on allegation of fraud and he consequently dismissed.

In any case paragraphs 10 and 12 of the statement of defence answered that aspect of the appellant’s claim.

It is my view that the appellant pleaded this fact in issue at the trial court and the legal burden on him was discharged to make it an issue at the trial court and consequently in this court.

The appellant’s letter of dismissal exhibit D reads as follows:

“I am directed to inform you that the Military Administrator of Kwara State, Col. P.A.M. Ogar has approved the release of the White Paper Report of the Disciplinary Committee on losses of Japanese Aid Materials of the Kwara State Water Corporation Recovery of losses.

In view of the serious fraud perpetrated by you, I am directed to inform you that you are dismissed from service. In addition you are to refund to the Government coffers, a total sum of N1,717,867.00 being the value of 275 Stainless Pipes illegally collected from the Store and diverted to unknown destinations.” (italics mine).

It is apparent that the appellant was dismissed as a result of the conclusion of the Disciplinary Committee that he was fraudulent in the handling of the Government property he requisitioned for. I agree with respondents’ counsel that there is no gainsaying the powers of an employer to conduct an investigation when they suspect misconduct on the part of an employee. See Edet v. Chief of Air Staff supra.

The problem here is not with the employer’s power to conduct the investigation but the power to make the outcome of the domestic investigation the sole basis for the dismissal of the employee.

The learned trial Judge in his judgment on this issue held:

“The allegation against the plaintiff as contained in exhibit B did not amount to a Clime under the penal code. It is only where the allegations amount to a crime that they must be reported to the police for investigation and possible prosecution before a court of law. See Baba v. Nigerian Civil Aviation Training Centre Zaria & 1 Or. (1991) 7 SCNJ 1 and Garba v. University Of Maiduguri (1986) 1 NWLR (Para. 18) 500. I find that the Ministerials Disciplinary Committee set up by the Government of Kwara State to investigate and make findings on the allegation was not set up to determinate any of the civil lights or obligations of the plaintiff.”

I find with respect that the conclusion reached by the learned trial Judge in relation to the distinction between allegations bordering on criminality and outright allegation of crime in the con of this case is erroneous. It seems to me that there must be a clear distinction which the learned Justices of the Supreme Court have always taken into consideration, between gross misconduct i.e. administrative insubordination and dishonesty i.e. telling lies etc – not serious enough to be labelled as a “criminal offence” on the one hand, and the allegation of outright commission of an offence contrary to the penal or criminal code.

However, the letter of dismissal exhibit D is clear on the fact that the Government accepted the White Paper Report of the Disciplinary Committee that the appellant had committed fraud (an offence contrary to the Penal Code) and should consequently be dismissed. Exhibit B referred to by the learned trial Judge was merely a query served on the appellant to explain his own side of the story and was not conclusive of the issue and should not have been taken by the trial Judge as such.

The appellant’s pleadings in paragraphs 20 and 23 (3) show that he was objecting to his summary dismissal on allegation of fraud when he had not been convicted by a court of competent jurisdiction of same. The learned trial Judge should not have ignored exhibit D to hold that the appellant was accused of serious administrative misconduct bordering on criminality rather than outright allegation of clime. The respondents did not just investigate; they used the outcome of the investigation as the basis for the dismissal of the appellant. The issue of whether or not an employer can summarily dismiss an employee based on allegation of misconduct bordering on criminality or outright allegation of crime would depend on the circumstances of each case. There appears to be a plethora of conflicting authorities on this issue. However a careful reading of the case of Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt.717) 132, (2001) 4 SCNJ 131 would reveal a very clear enunciation of the law on this issue. A decision is authority for what it actually decides and judgments should be read in the light of the facts on which they were decided. There has been a modification of the decision of law flowing from Dr. Sofekun v. Chief Akinyemi (1980) All NLR. Pg. 153, F.C.S.C. v. Laoye (1989) 2 NWLR. (Pt. 106) Pg. 652 etc that whenever an employee faces any criminal allegation, he must first be tried by a law court before the employer can effect his dismissal. The new trend is that following the case of Yusuf v. Union Bank (1996) 6 NWLR. (Pt. 457) Page 632 the prosecution of an employee before the law Court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct or allegation of crime. It would all depend on the circumstances of each case. The Supreme Court in Dongtoe v. C.S.C. Plateau State decided that where there is allegation of the commission of a criminal offence against the employee by an employer which has been denied by the accused employee, the employer making the accusation of the commission of a criminal offence as a basis of dismissal of the employee from services must first satisfy the constitutional requirement of establishing the guilt of the employee according to the law. It is not every allegation of crime however that must be proved before the regular criminal courts. A domestic tribunal is competent to take action against an official accused in respect of his conduct where the officer admits the commission of the misconduct or crime on which the allegation is founded – if otherwise, the officer may not be disciplined until he has been tried before a regular court. Where there has been admission the need for proof before a regular criminal court no longer arises. Admission of the officer may be inferred from his conduct or from evidence e.g. his reply to a query. Also the contract of employment must provide for the powers of summary dismissal by the employer in such an event. See also Unilorin v. Idowu Oluwadare supra. In this case, the appellant had been dismissed on allegation of fraud which when given the opportunity he had denied. The findings of the Investigation Panel recommended to the Disciplinary Committee can be the basis of criminal action, but cannot be basis of the dismissal of an officer who has not admitted a criminal allegation. It is my humble view that the first issue is resolved in favour of the appellant.

Issue two is whether or not the composition of the membership of the Investigation Panel and the Ministerial Disciplinary Committee did not breach the appellant’s right to fair hearing. On this issue, learned appellant’s counsel had submitted that the composition of the Investigation Panel and the Ministerial Disciplinary Committee did not guarantee fair hearing for the appellant. He argued that the membership of Mr. Alade and Mr. Mohammed had been objected to by the appellant at both stages and that the presence of both men greatly compromised the outcome of their conclusions which were against the appellant. He argued that even the respondents’ witnesses D.W. 1 at Pg. 59 of the records and also DW2 corroborated the fact that the appellant had objected to the membership of the two men in the Investigation Panel at the earliest opportunity. He submitted that the Investigation panel suspended the appellant indefinitely without pay and was invested with enormous power and was a judicial panel and thus bound by the rules of fair hearing. He also argued that the two men were members of the panel set up to investigate the missing water corporation property and the Ministerial Disciplinary Committee respectively.

The learned respondents’ counsel’s argument on this issue is two pronged. On the one hand, he argued that the appellant did not plead that the said Mr. Alade belonged to the two administrative bodies. Paragraph 16 of the appellant’s statement of claim only shows that the appellant objected to Mr. Alade’s membership of the Investigation Panel and not the Ministerial Committee. Any evidence contrary to the pleadings should be expunged as it is inadmissible and it goes to no issue. He cited U.B.A. Plc v. Ayike (2000) 7 NWLR (Pt. 663) Pg. 83.

Learned respondents’ counsel also argued that the facts on which the allegation of bias was based was insufficient to support the complaint. He submitted that the appellant merely expressed suspicion against the two men, and that the suspicion was baseless.

I quite agree with learned respondents’ counsel that it was not the pleading of the appellant that Mr. Alade and Mr. Mohammed were both members of the Investigation Panel and Ministerial Disciplinary Committee respectively. Paragraph 16 of the statement of claim only objected to the participation of Mr. Alade’s membership of the Investigation Panel not the Disciplinary Committee. Any evidence or argument on evidence outside the pleadings goes to no issue. Savannah Ventures v. W.A.R. Ltd. (1997) 10 NWLR. (Pt. 524) Pg. 254.

The finding and decision of the trial court on this issue is as follows:

“The evidence of the plaintiff before me was that he raised objection to the composition of the Ministerial Disciplinary Committee for including Mr. Alade and Mr. W.B. Mohammed as members. I find that the investigation panel headed by the 5th defendant (Mr. Owoleke) was different from the Ministerial Disciplinary Committee headed by the Attorney General of Kwara State who is the 2nd defendant in this suit.

The composition of the Ministerial Disciplinary Committee did not include Mr. Alade and Mr. W. Mohammed, I find therefore that if the plaintiff merely appeared as a witness to testify before the investigation panel which did not accuse him of any wrong doing then his allegation of bias against that purely fact finding and administrative panel for including messrs Alade and Mohammed is unfounded and misplaced. This is because on the evidence all said and done the plaintiff was just a witness before the panel and he gave his evidence unhindered “to the best of his knowledge” and he was not on trial. Where then is the bias? Bias against a witness? The allegation of bias has not been established.”

With respect, I am of the view that even though the issue of bias or lack of fair hearing relates only to the Panel Investigating the loss of materials at the Water Corporation, the 5th respondent was obliged in the circumstances to obey the rules of natural justice.

A purely administrative tribunal with duties of investigation only has duty to give right of cross-examination to the “accused.” It can receive evidence through any means, oral or written. It is only required to act fairly and hear all sides before arriving at its decision. It may become a quasi-judicial one depending on the terms of reference and the real function it performs. Thus the determination of whether a body or panel gives fair hearing or observes the rules of natural justice depends on the intention or expected result. See Alh. Abdullahi Baba v. (Nig.) Civil Aviation Training Centre & Anor supra. Though not mandatory, the principles of natural justice must be complied with where civil rights and obligations are involved. See also A. O. Adeyemi Adeniyi v. Governing Council of Yaba Tech. (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ 304.

Exhibit H is the report of the Investigation Panel. Page 1 of exhibit H shows the terms of reference of the Panel. Clause IV of the terms of reference is as follows:

“Carry out any other relevant investigation that would assist to identify the individuals or syndicate responsible and profer punishments” (italics mine).

Once an administrative body acts judicially, the principles of fair hearing binding on judicial bodies are automatically imparted, though the manner of hearing will still depend on the particular circumstances of the case. The appellant had objected to the presence of two people on the basis of bias. He said there had been professional controversy between them before the inauguration of the Panel. The Panel’s terms of reference clause IV of exhibit H (the report) states that it had the power to profer In that con given the nature and purpose of the inquiry, the chairman ought not to have allowed two members out of a complement of five whose membership were objected to by the appellant at the earliest opportunity to decide the appellants rights and obligations. Nnemeka-Agu, J.S.C. in Baba v. N.C.A.T.C (1991) 5 NWLR (Pt. 192) Pg. 388 at Pg. 415, said inter alia

“Where a body, whether judicial, quasi-judicial, administrative or executive in inception, acts judicially in the sense that it is to determine the civil rights and obligations of the person, or to find him guilty or liable for a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of section 33(1) of the Constitution of 1979. That indeed is the essence of fair hearing as a Constitutional right. In such cases, the hearing body must be seen to have observed all the implications and attributes of fair hearing …”

This of course includes the observance of the rules of natural justice. In this instance, wasn’t the appellant’s fears regarding the presence of his “enemies” on the panel well founded when the panel after calling him as a witness, promptly suspended him indefinitely without pay three days later? I should think so. The facts of the case at hand are quite different from the case of Akinola v. V.C Unilorin (2004) 11NWLR (Pt. 885) pg.616.

In that case the court held that the appellant could not complain afterwards against the integrity of a panel which he had not challenged during the proceeding.punishment for those whom it had identified as responsible for the problem it was investigating.

I agree with learned appellant’s counsel that the Investigating Panel was at its inception apparently biased against the appellant and its report should not have been used by the Disciplinary Committee to form the basis of disciplinary action. This issue is hereby resolved in favour of the appellant.

The third issue for determination is whether on the evidence before the trial Court any misconduct was made out against the appellant to justify his dismissal. The appellant’s counsel submitted that paragraph 14 of the respondents’ joint statement of defence is not in compliance with Order 25 Rule 5(1) of the Kwara State High Court Rules regarding the quality of pleadings when fraud is to be proved in evidence. He argued that paragraph 14 was a general traverse which did not supply the necessary particulars e.g. dates and items as required by law. He submitted that the pleading is inadmissible in law. He cited Chief Onwuka Kalu v. Chief Victor 1. Odili (1992)5 NWLR (Pt.240) 130, (1992) 26 S.C.N.J. 76 at 79;

The Hon. Mr. Justice Kalu Anyah v. African Newspapers of (Nig.) Ltd. (1992)5 NWLR (Pt.240) 130, (1992) 7 S.C.N.J. 47 at 49; Oguma Associated Companies Ltd. v. IBWA Ltd. (1988)1 NWLR (Pt.73) 688, (1988) 3 SCNJ 13, 32. He also argued that the appellant had tendered exhibit F, F1 and G in relation to Galvanised Pipes and had nothing to do with Stainless Pipes. He argued that exhibit D, the respondents’ letter dismissing the appellant referred to loss of stainless steel pipes and not galvanised iron pipes. He submitted that the allegation of fraud against the appellant must be proved beyond reasonable doubt. He submitted that stainless pipes and galvanised pipes are not the same and that there was no evidence before the trial court to justify the dismissal of the appellant on the basis of fraud.

Learned respondents’ counsel in reply submitted that the learned trial Judge was correct in holding that there was justification for the suspension and dismissal of the appellant on the ground of o misconduct. Learned counsel argued that the evidence before the trial Court from DW 1 and DW3 was that the appellant was not entitled to make requisition on his own and could only do so on the express instruction of the General Manager. He argued that D.W. 1 and DW3 had given copious evidence to the effect that the appellant had collected materials from the store which he did not utilize. He argued that the appellant’s testimony was inconsistent and the learned trial Judge rightly disbelieved him.

On this issue the learned trial Judge held:

“The allegation against the plaintiff was that he collected some pipes both galvanized and stainless of various sizes for specific projects but did not make use of them for those projects … I accept the procedure for making requisitions as outlined by DW1 and DW3 in their evidence in preference to the evidence of PW1 and DW2 both of whom tried to cover up the malpractices and irregularities they had committed in making requisitions in exhibits and G.”

I agree that in pleading fraud where alleged, it must be pleaded specifically with particulars see High-grade Maritime Services v. First Bank (1991) 1 NWLR (Pt.167)290, (1991) 1 SCNJ 110. However, on the matter of quality of the respondents’ pleading on fraud raised by the appellant’s counsel, the argument is unfounded given the nature of the content of respondents’ pleadings in the matter which was explicit enough to my mind.

With reference to the finding of the trial Judge quoted above, it is obvious that in substance, the, learned trial Judge preferred the evidence of DW 1 and DW3 to that of DW2 and he based his finding of misconduct on their evidence. The evidence of D.W.2 had supported the procedure outlined by the appellant. The law is that evidence of the witness of a party which support the case of the other side is always accepted as evidence against the interest of the party and should not be rejected on the ground that it is contradictory and questionable See Kimdey & Ors. v. The Governor of Gongola State (1988) 2 NWLR (Pt.77) 445, (1988) 5 SCNJ 281. Thus, evidence from a party’s witness which is favourable to the case of the adverse party must be admitted as admission of case of the adverse party on the point affected because a party guarantees the reliability of his witness see Oseni Aboyeji v. Amusa Momoh & 2 Ors. (1994) 4 S.C.N.J. 302.

This is more so as in this case when the respondents’ counsel never treated DW2 as a hostile witness see Makanjuola Olatunji v. Alh. Muibi Adisa (1995) 2 NWLR (Pt.376) 167, (1995) 2 S.C.N.J 90.

My humble view is that the learned trial Judge should not have picked the evidence voluntarily called by the respondents which was unfavourable to the appellant’s case and completely ignored the favourable evidence of the witness who had not been declared hostile by the respondents to arrive at his finding that the allegation of misconduct was proven against the appellant.

The other leg of this issue is the submission by appellant’s counsel that the respondent must prove beyond reasonable doubt the allegation of fraud leveled against the appellant. I do not quite understand why the learned trial Judge persisted in using a euphemism inconsistent with and not adopted by the parties in holding that this was only an allegation of misconduct and not fraud.

The cause of action was made quite plain by the appellant in paragraphs 19, 20 and 24(3) of the statement of claim. It was to the effect that respondents were wrong to have dismissed him based on the finding of “fraud” by the various panels. The statement of defence also in paragraphs 10 and 13 state that the allegation was one of fraud for which they intended to demand restitution. On this issue, the learned trial Judge had this to say

“I am satisfied from the totality of the evidence before me that as a field officer in the project department it was the duty of the plaintiff to put up requisitions for materials needed at the sites of projects being executed by the water corporation. The procedure where by the General Manager of the Corporation merely gives oral directives to the plaintiff to put up requisitions for large quantities of materials without specifying where such materials would be used or the projects they are required for lives (sic) much to be desired and is suspect. In exhibit G1, which was his reply to query exhibit B; the plaintiffs admitted issuing SIV, form 40 or exhibit F on 24th December, 1994 on the directives of the General Manager, Assistant General Manager and project Manager but surprisingly, the Project Manager, DW2; in his evidence categorically denied ever signing exhibit F and said his signature is not on that exhibit…

I am satisfied that the conduct of the plaintiff in issuing exhibit F, F1 and G on mere oral directive of the General Manager and later collecting the materials requisitioned for directly from the store without being able to account for such materials or actually using them for the specific projects they were meant for was enough misconduct as to undermine the relationship of confidence which normally should exist between an employer and an employee.”

The onus of proof in all civil case is on one who asserts. The respondents’ statement of defence paragraphs 10 and 13 are to the effect that the appellant perpetrated fraud in relation to his employer’s property. The onus of proof in this regard was on the respondents. The standard of proof where crime is alleged in civil proceedings is proof beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR 1, Abitatu Folami v. Flora Cole (1990) 2 NWLR (Pt.133) 445, (1990) 4 S.C.N.J 13, Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137, (1990) 3 SCNJ 131.

As indicated earlier, doubt as to the culpability of the appellant had been cast by DW2 the respondent’s own witness and as in criminal cases, any doubt should be resolved in favour of the accused.

Alfred Aigbadion v. The State (2000) 7 NWLR (Pt.666) 686, (2000) 4 S.C.N.J. 1. For reasons given above, the 3rd issued is resolved in favour of the appellant.

The 4th issue for determination is whether the procedure for discipline as contained in the appellant’s condition of service was complied with in the manner of the appellant’s dismissal. On this issue, learned appellant’s counsel submitted that it is admitted by both parties that exhibit F2 is the condition of service governing the appellant’s employment with the 4th respondent. It is the basis of the contact of service and none of the parties can deviate from it. He argued that clauses 25 and 26 of exhibit F2 had been breached by the respondent in their treatment of the appellant’s matter. He argued that the appellant had been placed on indefinite suspension without pay before he was ever queried. The disciplinary committee contemplated by exhibit F2 is a disciplinary committee of the 4th respondent, the Water Corporation not the Disciplinary Committee of the parent Ministry. He submitted that exhibit F2 has statutory flavour and the dismissal contrary to it was incompetent. He cited F.C.D.A. v. Joshua Gyuhu Sule (1994) 3 NWLR (Pt.332) 257, (1994)3 S.C.N.J. 71 at 82, The Council of Federal Poly Mubi v. T.L.M. Yusuf & 1 Or: (1998) 1 NWLR (Pt.533) 343, (1998) 1 SCNJ 11 at 17, Obot v. Central Bank (1993) 8 NWLR (Pt.310) 140, (1993) 9 S.C.N.J. 268, 288.

The learned respondents’ counsel on this issue submitted that the appellant’s statement of claim paragraph 19 failed to plead specific provisions of the Civil Service Rules which the respondents violated in their procedure in dismissing the appellant. He submitted that in failing in his duty to plead these specific conditions and procedure infringed, the learned trial Judge was right in holding that the letter of employment of the appellant was not tendered and therefore the material facts needed to determine the conditions applicable to the appellant was not before the court for consideration. He cited Unilorin T.H.M.B. v. Issa Aluko (1996) 3 NWLR. (Pt 434) pg. 74 at pg. 83 – 84. He also submitted that the appellant refused to plead and tender his letter of appointment because it would be unfavourable to him and urged the court to invoke section 149(d) of the Evidence Act against him.

The learned trial Judge on this issue had this to say:

“In this case like in Amodu v. Amode (1990) 9 SCNJ 1 the plaintiff did not plead, produce or tender in evidence his letter of appointment which probably would have stipulated his conditions of service and mode of terminating it or the condition under which he could be summarily (sic). However I find that the rights of the plaintiff and the 4th defendant are governed by the

A condition of service for senior staff exhibit F2. It is therefore necessary for the defence to show that in summarily dismissing the plaintiff the conditions set out in clauses 25 and 26 of exhibit F2 have been followed.”

It is apparent that the reasoning and conclusion of the learned trial Judge on this matter was not based on the appellant’s failure to plead specifics of his condition of service in paragraph 19 of the statement of claim, but on the appellant’s failure to plead and prove his letter of appointment. This clearly removes the wind out of learned respondents counsel’s sails on this argument.

With respect, I do not see how this has diminished the substance of the appellant’s claim in the lower Court in relation to the issue at hand. It would have been entirely different if the appellant neither pleaded his letter of appointment or his conditions of service. In any case, it is common knowledge that detailed conditions of service are never incorporated into the letter of appointment. Both parties accepted exhibit F2 as the binding document between them and the trial Judge apparently also did so in the 2nd part of the paragraph quoted above. This finding of the trial Judge does not support the argument of learned respondents’ counsel on this issue. In fact, the learned trial Judge put the onus of proof that they followed the 4th respondent’s conditions of service on the respondents. With respect I do not think that is correct. The onus of proof that the conditions of service was not followed to my mind rested on the appellant. The learned trial Judge made only a passing reference to clauses 25 and 26 of exhibit F2. It is my humble view that therein lies the crux of the appellant’s claim and the answer to the issue at hand. Clause 25 of exhibit F2 provides that the appellant cannot be suspended without a written query and an opportunity to make a reply. Suspension was to be for only one month in the aggregate.

Clause 26(c) (d) and (e) of exhibit F2 stipulates that the Establishments Committee must investigate the matter. I agree that the Establishments Committee is that of the Water Corporation. Also the officer was to be confronted with documentary evidence against him and given him the opportunity to cross-examine any witness against him. The appellant had given evidence which was not seriously controverted that this employer did not follow clauses 25 and 26 of exhibit F2 the conditions of service of the Utility Board (now Water Corporation).

Where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and of no effect. See Obot v. C.B.N. supra; Geidam v. NEPA (2001) 2 NWLR (Pt. 696) Pg. 45 at Pg. 55, U.B.N v. Ogboh (1995) 2 NWLR (Pt. 380) Pg. 647.

I agree with the learned appellant’s counsel that the contract between the parties had statutory flavour and the means of termination is as provided in exhibit F2. The respondents in breach of same, their actions are hereby void and of no effect.

There is also a second leg to the argument on this issue. Suspension is a serious disciplinary measure. The appellant was merely orally invited on 6th November, 1995 by the respondent to explain the procedure for requisition of Japanese grants aid materials from the store of the 4th respondent. He was not issued a query exhibit until 6th of December a month after he received the letter of suspension exhibit A.

The contents of exhibit A is reproduced below:

“Letter of Suspension Without Pay Following the findings of the panel constituted by the management of this Corporation on the various anomalies and deficiencies on the Japanese Grant Aid materials and your subsequent interview made with the panel, the management of this Corporation viewed with much seriousness the embarrassment your involvement in the case has caused the Corporation and the Government of Kwara State. You have no been able to prove yourself unblamable from the loss of various materials of government valued at millions of Naira.

2. In view of the serious nature of the case and your involvement, I am directed to inform you to immediately proceed on indefinite suspension from duty without pay until the final determination of the case.
3. I am to further state that you should make yourself available for a Ministerial panel of enquiry which would be constituted soon please.”

The last sentence of paragraph 1 of exhibit A shows that the Investigation Panel had arrived at same unfavouable conclusions regarding the appellant before querying him.

The appellant had always maintained that before the Investigation Panel he was never queried or asked any questions and he was at all times treated as a witness. Thus the outcome of the Investigation indicting him should be declared null and void. In Egwu v. Uniport (1995) 8 NWLR (Pt. 414) Pg. 419 at pg. 448 – 9 it was held by Onalaja, J.C.A. that:

“It is trite law that a witness before an administrative body cannot be treated as an accused person conversion of treatment of a witness to an accused person is a breach of fundamental right of fair hearing the invitation to testify cannot be assumed that he was aware of the nature of the allegations against him as there is nothing known in our jurisprudence like to charge by presumption”.

See also Adedeji v. Police Service Commission (1968) NMLR Pg, 10. and Esho, J.S.C. in F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) Pg. 652 at 681.

In the case at hand, the Investigating Panel’s report which was made without fair hearing is incompetent and is hereby declared null and void.

The 5th issue for determination is whether or not the Ministry of Water Resources represented by the 3rd respondent is competent to take over the functions of the management and Board of Directors of the 4th respondent in the discipline of the appellant. On this issue, learned appellant’s counsel submitted that only the management and Board of the Water Corporation are the only properly constituted bodies concerned with his discipline. Issues were joined on this matter by the respondents in paragraph 15 of the statement of defence.

He argued that in matters of discipline, the 3rd respondent or his Ministry cannot take over the function of the Management or Board of Directors of the 4th respondent. The trial Judge on page 87 of the record found that since the Kwara State Government owned the grant aid and materials it could after following laid down procedures dismiss the plaintiff from service. The learned Judge also held that since the appellant did not prove the membership and minutes of the State Executive Council and those who took the decision to dismiss him, he had failed to prove his case. Paragraph 15 of the statement of defence is set out below:

“The defendant further says that the 3rd defendant has disciplinary power over the plaintiff’s employment as the parent Ministry of the defendant Corporation.”

Paragraph 22 of the statement of claim states as follows on this Issue:

“22. The plaintiffs avers that he is an employee of the 4th defendant a statutory corporation having power of discipline over him, and neither the 3rd defendant nor the Ministry of Water Resources has the power to discipline or dismiss him or set in motion the process of his discipline from the service of the 4th defendant.”

The question is on whom the burden of proof lie does in this case? The appellant had discharged the legal burden by his statement of claim and the evidential burden by his evidence during the trial -pg. 48 of the record of proceedings. It is trite that the burden in civil cases shift as the facts preponderates. It was left to the respondents to prove their assertion in paragraph 15 of their statement of defence that Mr. Adebayo Ajani Director P.F.S. for the Permanent Secretary of the Ministry of Water Resources and Rural Development could write on the direction of the Military Administrator of Kwara State a letter dismissing the appellant. I do not feel that they discharged this burden. The appellant had proved that he was employed by the Water Corporation with its own Board constituted by law. The respondents had to prove the nexus between the Water Corporation Board and the Ministry of Water Resources by tendering evidence of the authority of the latter on the former. It was incumbent on the respondents to lead evidence in support of the 1st respondent’s authority to direct the dismissal of the appellant. See Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) Pg. 641, Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) Pg. 128, Mil. Adm., Benue State v. Ulegede (2001) 17 NWLR (Pt. 741) Pg. 194 at 224.

The 5th issue is resolved in favour of the appellant.

In the circumstances, the judgment of the lower Court is set aside. The 1st – 5th heads of the appellant’s claim in the lower court succeeds. It is hereby ordered that the plaintiff/appellant be re-instated forthwith into the services of the Kwara State Water Corporation in his substantive rank of Principal Works Superintendent 1 with his salaries and allowances paid from the date of his suspension till the date of this judgment.

The appeal is allowed.

There shall be no order as to costs.

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Other Citations: (2006)LCN/1962(CA)