National Electric Power Authority V. John Ojo Adeyemi (2006)

LawGlobal-Hub Lead Judgment Report

UWANI BAYANG AKAAHS, J.C.A.

This appeal deals with the following four issues viz:

1. Whether the learned trial Judge was justified in declining to accord exhibit “17” (the Ad-Hoc Report) any evidential value
2. Whether the respondent was granted fair hearing before his dismissal from the appellant’s establishment.
3. Whether from the circumstances of this case, the appellant is required to prove before the court the criminal allegation made against the respondent.
4. Having held that the respondent’s employment was wrongfully terminated, is it right to award him salaries and allowances from October, 1992 to January, 2001?

Before considering the above issues which the appellant adumbrated in its brief of argument, it is necessary to give the background facts leading to the appeal.

The respondent was, until his interdiction on 6/10/87 (exhibit 1) and eventual dismissal on 18/2/88 (exhibit 3), a Senior Technical Officer (Electrical) on a salary of N5,112.00 per annum on Grade Level 9 with the National Electric Power Authority (NEPA). He was promoted to that position on 30/10/85. It was conveyed to him via letter Ref. Staff/RO/6.1/Vo1.45/2421 which was received in evidence as exhibit 15B. His letter of appointment with Ref. STAFF/MRER/RO/4.2Nol. 16/8823 dated 7th October 1977 (exhibit 11) reads:

“Adeyemi Ojo John

UPS: Manager,

Training Centre, Ijora

Dear Sir,

OFFER OF APPOINTMENT

As a result of your success at the interview held recently, I have pleasure in offering you appointment with this Authority as Elec. Mtce. Tech. Trainee in our Training Department at a commencing salary of N 1,620 p.a. in the Authority’s Grade Level 05 i.e. N 1,476 x 72= N1,908. The appointment is however subject to good references from your referees, and also the following terms and conditions:

(a) The production of correct and genuine certificates and passing a medical examination which will be arranged as soon as you report to this office.

(b) That you will undergo training for at least twenty-four (24) months and if at any time, during the training you are found to be incapable of making a good grade, your appointment will be terminated.

(c) That unless dismissed, you or the Authority may terminate your appointment by a month’s notice or by payment of a month’s salary in lieu of notice.

(d) That as long as you remain in the Authority’s service you will be liable to work in any part of the Federal Republic.

(e) That in all other respects not covered by clauses (a) to (d) above, you will be subject to the Authority’s Conditions of Service dated July, 1973 and such other regulations and instructions as may be adopted by the Authority from time to time.

Should you be prepared to accept the appointment, please signify your acceptance in writing not later than 15th October, 1977 and report to the Manager, Training Centre, Ijora.

Yours faithfully,

Signed: Director of Personnel.”

The letter of interdiction which was tendered in evidence as exhibit” 1″ goes as follows:

“NATIONAL ELECTRIC POWER AUTHORITY MEMORANDUM

Date 6th October, 1987

From: Asst. General Manager (D)

HQS

TO: Mr. J.O. Adeyemi-Senior

Technical Officer (Elect)

UPS: Director of Distribution, Jos.

Ref: 20/201/D/2A/4.3/228

INTERDICTION

Reports reaching this office revealed that you were involved in the loss of 6 No. (six) transformers made up of 2. No (Two) 100 KVA 33/415V, 2 No. (Two) 200 KVA 33/415V and 2 No. (Two) 300KVA 33/415V from the Jos “C” substation stores.

Management considered it necessary that in the interest of the Authority you should cease to exercise the powers and functions of your office so as to give room for thorough investigation.

You are hereby interdicted with immediate effect in accordance with regulation 31.05 of the Authority’s Conditions of Service. You should leave your contact address with the Director of Distribution, Jos.

You should always make yourself available in the office at the request of the authority anytime your presence is needed, and failure to comply with this instruction will be regarded as absence from duty without leave or permission, and would be treated accordingly as provided in section 35. 01 of the Conditions of Service.

The District Accountant is being advised by a copy of this letter to pay you only one-half of your emoluments forthwith.

You should acknowledge receipt of this letter on the attached copies.

Signed: Engr. L. A. Adeniji-Fashola

Asst. General Manager (D)”

An Ad-Hoc Disciplinary Committee was set up which investigated the respondent’s involvement in the alleged theft of the transformers and a report was compiled which was admitted in evidence as exhibit “17”. The Committee found the respondent guilty and recommended his dismissal. A letter of the Authority dated 18th February, 1988 conveying the dismissal of the respondent was also received in evidence as exhibit 3. It is reproduce as follows:

“NATIONAL ELECTRIC POWER AUTHORITY MEMORANDUM

Date 18th February, 1988

From: Asst. General Manager

To: Mr. John O. Adeyemi-S.T.O (Elect)

UFS: Director of Distribution

Jos

Ref: 0221/2.1/200/88

DISMISSAL

The Ad-Hoc Disciplinary Committee that investigated the extent of your involvement in the alleged case of theft of 6 No. 33/415V Distribution Transformers at Jos “C” Stores found you guilty of the offence.

In accordance with the recommendation of the committee, Management has decided to dismiss you from the services of the Authority with effect from 29th May 1987 (the day you were placed on interdiction) vide section 33.02 (1), (4), (9) and (11) of the Authority’s Condition of Service 1978 Edition.

You have therefore ceased to enjoy all the rights and privileges applicable to members of staff of this Authority.

You will therefore surrender all the Authority’s property in your possession, including your identity card to the Director of Distribution, Jos

You should also make adequate arrangement to settle your indebtedness (if any) to avoid litigation.

Please acknowledge receipt of this letter by signing and returning the attached duplicate copy to this office promptly.

Signed: A. HASSAN

Asst. General Manager (Administration)”

On receipt of exhibit 3, the plaintiff/respondent wrote to the Authority protesting his innocence of the alleged theft of the transformers and requested the General Manager to revisit the case by calling for the tape recording of the investigation. He did not receive any response to his letter and so briefed his solicitors who wrote exhibit “5” dated 11th May, 88 demanding for his reinstatement. The Secretary/Legal Adviser of the Authority on receipt of exhibit “5” wrote on 1/6/88 to the Director of Personnel and copying the plaintiff’s Solicitors asking for a copy of the Ad-Hoc Committee’s report. He pleaded for time from the plaintiff’s solicitors. The solicitors wrote exhibit 7 on 15/6/88 pointing to the reply the defendant/appellant wrote to the plaintiff on 14/4/88 foreclosing the issue of reconsidering the dismissal of the plaintiff from his employment and giving the Authority 14 days within which to reverse the decision. Nothing happened and so the solicitors of the plaintiff served the 30 days notice of intention to sue and took out the writ of summons on 1/12/92 and claimed the following reliefs in paragraphs 2, 25, 26 and 27 of the statement of claim:-

“24. WHEREFORE the plaintiff claims as follows:

(a) Declaration that the dismissal of the Plaintiff dated 18th February, 1988 is wrongful, unlawful, null and void and of no legal effect.

(b) An order of the court reinstating the plaintiff to the post he should be now if not because of the action of the defendant and also the plaintiff be paid all his entitlements up to date.

(c) Special damages of:

PARTICULARS OF SPECIAL DAMAGES

(i) Basic Salary at N439.50 monthly from 6/10/87 – 31/10/92 N26, 370.00

(ii) Housing allowance at N44 from 6/10/87 – 31/10/92 N2, 640.00

(iii) Transport allowance at N45 monthly from 6/10/87 – 31/10/92 N2, 700.00

(iv) Annual leave allowance at N222.48 per annum from 6/10/87 – 31/10/92 N1, 112,40

TOTALLING N32, 822.40

25. That the plaintiff be paid the basic salary of N439.50 monthly, housing allowance of N4,400 monthly, transport allowance of N450.00 monthly and the annual leave allowance from the 1st day November, 1992 until this suit is finally determined.
26. The plaintiff also claims the sum of N364, 657.60 as general damages for wrongful and unlawful dismissal.
27. WHEREFORE the plaintiff claims the sum of N400,000.00 from the defendant as special and general damages for wrongful dismissal”

The case was heard initially by Galadima J. before the creation of Nasawara State where he became Chief Judge. It had to be started de novo before Ntiem J. Although the records show that the pleadings were amended, judgment was entered for the plaintiff on the statement of claim dated 29/10/92. The learned trial Judge granted the reliefs set out in paragraphs 24 and 25 of the statement of claim.

In addition she awarded N15,000 as general damages to the plaintiff for wrongful dismissal but dismissed the claim for N400, 000.00 special damages contained in paragraph 27 of the statement of claim holding that there was no evidence to prove that head of claim. The defendant is aggrieved and filed this appeal. The notice of appeal was amended and it contained 5 grounds from which 4 issues earlier reproduced in the judgment were formulated which were adopted in the respondent’s brief.

On issue No. 1 learned counsel for the appellant said that exhibit 17 is the hob nub of the appellant’s defence. He argued that if the learned trial Judge had properly considered exhibit “17” she would have come to a different conclusion. It is the contention of learned counsel that where a document is duly pleaded, certified and produced from proper custody, it should be accepted by the court as an authentic and genuine document to be used in the case. He therefore submitted that the learned trial Judge erred in law when she refused to accord any evidential value to exhibit “17” in the consideration of this case and it occasioned a miscarriage of justice. Reliance was placed on the case of N.A.B. Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450.

In reply learned counsel for the respondent adopted the reasoning of the learned trial Judge in refusing to accord any weight to exhibit “17” to argue that the reason given by the learned trial Judge is cogent and lawful. He also referred to section 10 of the Commission of Inquiry Law, Cap. 25 of the Laws of Northern Nigeria 1963 which provides:

“No evidence taken under this law shall be admissible against any person in any civil or criminal proceedings whatsoever except in the case of a person charged under section 12 of this Law with giving false evidence before the Commission.” and submitted that this law supports the reasoning of the learned trial Judge.

In the reply brief, learned counsel for the appellant argued that the Commission of Inquiry Law is limited to the State Government and is therefore not applicable to an Ad-Hoc Disciplinary Committee set up by a government agency as it is clearly stated in section 2 of the Commission of Inquiry Law, Cap. 25 of Laws of Northern Nigeria applicable to Plateau State.

In paragraphs 6, 7, 8, 10 and 11 of the statement of claim the plaintiff pleaded thus:

“6. That sometime in February, 1987, following a report of missing transformers in the store, the plaintiff and some other staffs were interrogated and detained by the Directorate of Investigations and Intelligence D 11 (formerly known as C.I.D) Jos for 14 days.

7. That the plaintiff was able to account for all the transformers collected and all were installed and all of them are still in their various locations where they were installed within the NEPA distribution network.
8. That after series of investigations by the police while the plaintiff was in detention, the police cleared the plaintiff of any involvement in the theft and/or missing transformers and as a result of this clearance by the police, the plaintiff was released from the police custody after 14 days and he was not prosecuted in any law court for any offence relating to the missing transformers.
9. That later the plaintiff was invited again by the police and was interrogated on some NEPA 33KV materials and he was cleared of every allegation on the same day after the explanation of the plaintiff.
10. That after the police clearance the second time, the defendant set up an ad-hoc committee to investigate the extent of involvement of any NEPA staff.”

In the amended statement of defence, it was averred in paragraphs 4, 5, 6, 7, 8, 9, 10 and 12 as follows:

“4. The defendant avers that sometime in February, 1987 it was discovered that six 33KV distribution transformers and some ancillary 33KV distribution materials were missing in its District Office store in Jos. This matter was reported to the Police who invited some of the defendant’s staff for interrogation.

5. While the Police investigation was going on, the defendant set up an administrative inquiry panel with the following terms of reference:

(i) To investigate thoroughly the case of theft of six 33KV distribution transformers and 33KV distribution materials allegedly consigned to Sokoto district from Jos ‘C’ stores.

(ii) To identify the members of staff involved in the theft and establish the extent of involvement in the case.

(iii) To apportion blame, where necessary, to any staff if involved and make appropriate recommendations to management to avoid any future re-occurrence.

6. The Ad-Hoc Disciplinary Committee invited thirty one persons including the plaintiff who was invited through the defendants letter Ref. No. 33/APO/Vol.1/21.00/2725 dated 13th September, 1987. At the conclusion of its sittings in October 1987 the Committee produced a comprehensive report of all that transpired including the documents tendered before it that were examined and used for its deliberation. The defendant at the hearing of this suit will use and rely on the report aforesaid and copies of all relevant documents therein.
7. The plaintiff appeared before the panel voluntarily. He was given ample opportunity to make representations to the assertion that he was linked with the missing items. He called witness in support of his defence. The Panel granted the plaintiff all rights to fair hearing and complied with the rules of natural justice during its deliberations.
8. The panel discovered that the plaintiff signed and received three 100KVA 33/415KV transformers with SR & INS Nos. 19574, 90456 and 90490 form the said stores but could not account for them.
9. The Committee also discovered that the plaintiff signed and received some ancillary 33KV distribution materials as show on SR & Ins Nos. 49910, 49915, 49923, 49911 and 49916 and was unable to give an account of the items.
10. It was also discovered that the plaintiff signed receiving some materials for non-existing projects and some alleged projects, which he said that he never visited the sites they were alleged to be conveyed to.
11. The plaintiff gave contradictory and unsatisfactory oral and documentary account on his role pertaining to the missing items which influenced the panel to disbelieve his story and recommended to the management to dismiss the plaintiff for dishonesty, being unfit to continue in the defendant’s employment for his negligence and misconduct having regard to the whole circumstances of the case.
12. The plaintiffs employment with the defendant is based on simple common law contract and does not enjoy any statutory flavor to entitle him to the relief’s sought herein. Furthermore, the Federal Civil Service Rules does not govern the plaintiff’s employment with the defendant, neither is it applicable to the defendant condition of service, the plaintiff was not employed or seconded or transferred or at any time interviewed by or through the Federal Civil Service Commission and the latter has no supervisory role, power over the defendant.

Exhibit “17” was tendered by consent of the parties. When Danlami Wambai, the Principal Manager in charge of Personnel and Administration of NEPA, Jos Zone was called to testify, he identified exhibit 17 as the record of the administrative panel that investigated the case of missing transformers and installation materials in Jos District store of NEPA. Issues were joined on what led to the setting up of the Ad-Hoc Disciplinary Committee which produced exhibit “17”.

The learned trial Judge in considering the reason for the dismissal of the plaintiff contained in exhibit 3 said in her judgment at page 56 of the records:

“The disturbing aspect of the case border on the reasons given for the dismissal which the employer was not obliged to give. But one (sic) reasons are given and they are disputed in court as in this case the onus lies on the employer to justify the reasons by evidential proof. The proof required here is proof beyond reasonable doubt as required by section 137 of the Evidence Act. The proof is necessitated by the allegation of criminal misconduct levied against the plaintiff for which he was suspended and later dismissed.”

This reasoning by the learned trial Judge cannot be faulted.

Could the appellant use the report of the Ad-hoc disciplinary committee to argue that the allegation of theft against the respondent has been proved beyond reasonable doubt? I do not think so. As held in Garba & Ors. v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; (1986) 1 NSCC 245, the offences for which the appellants were held liable by the board and panel were offences under the Penal Code and therefore triable only by the regular courts of law. Neither an investigating panel, disciplinary board nor a Vice-Chancellor of a University has the power to determine a criminal charge. Only a court or a judicial tribunal is competent to hear and determine the criminal charges brought against the appellants, Eso, JSC expressed the view in Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652 at page 679 that-

“…the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved, care must be taken that the provision of S. 33(4) of the Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all admit of their involvement in criminal acts.”

In his concurring judgment Oputa JSC stated at page 707-

When anyone is accused of a criminal offence, he should, in his own interest and in the interest of truth and justice, be tried by the ordinary courts of the land. No hush hush inquiry will take the place of open trial.

The right to fair hearing comprehends and includes the right to be heard in open court in defence of one’s character and good name, when accused of misconduct amounting to a criminal offence.”

The learned trial Judge was right when she observed at page 56 of the record:

“In this case the allegation of theft of transformers is not proved before the court. No witness was called to testify to the commission of the offence. DW 1 was only a formal witness who came to tender in evidence the report of the ad hoc panel …”

The respondent throughout maintained his innocence about the theft and even pleaded that the police cleared him of the allegation only for the appellant to turn round to set up the Ad-Hoc Committee which produced exhibit 17.

It is not the law that once a document had been admitted in evidence, due weight must be placed on the document. The admissibility of a document and the weight to attach to the document are two different things. Little or no weight can still be attached to a document that has been admitted in evidence. In such a case the document is as worthless as if it had not been admitted in the first place. See: Torti v. Ukpabi (1984) 1 SCNLR 214; See also: N.A.B. Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450 where the observation of Fatayi-Williams JSC (as he then was) in Ayeni v. Dada (1978) NSCC 147 was applied where he stated at page 160 thus:

“We wish to point out, however, that although the two exhibits (F and G) are admissible under either the Evidence Act or the Public Archives Act, the weight to be attached to their contents is another matter.”

If the respondent had admitted stealing the transformers when he appeared before the Ad-hoc panel and turned round to deny the theft at the hearing in the lower court, the appellant would be right to confront him with his admission under cross-examination to show that his denial in court was not true. The evidential value of exhibit 17 is that the respondent was given a hearing before he was recommended for dismissal. The learned trial Judge was to hold that the proceedings before the panel did not constitute evidence before her court and therefore were irrelevant. I therefore resolve issue 1 against the appellant.

Having conceded that the learned trial Judge was right in holding that the dismissal of the respondent was wrongful, it will be a worthless exercise to consider issues 2 and 3 which relate to fair hearing and whether the appellant was required to prove the criminal allegation made against the respondent. Suffice it to say that the respondent’s employment did not enjoy statutory flavour. Since the plaintiff had pleaded in paragraph 23 of the statement of claim that his dismissal is wrongful because it is contrary to the conditions of service of NEPA workers and therefore sought to be reinstated, notwithstanding that in the letters of interdiction and dismissal (exhibits 1 and 3 respectively) made reference to Regulation 31.05 and section 3 3.02 (1), (4) (9) and (11) of the Authority Condition of Service 1978 Edition, the burden of proving that he was entitled to reinstatement once his dismissal is wrongful lay on the plaintiff. See: Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 where it was held per Uwais JSC (as he then was) at page 519 that:

“In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial Judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which have been breached would be admissible at the trial; and this will be fatal to the actions since it will lacks foundation”

In Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370 Agbaje JSC held as follows:

“… since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave the 2nd defendant, his employers, a restricted right of dismissal over him.

I have no difficulty therefore in rejecting the submission of counsel for the plaintiff that the onus of putting in evidence in this case the conditions of service of the contract of employment between the plaintiff and the 2nd defendants was on the latter” The decision in Amodu v. Amode supra applies mutatis mutandis to the argument of learned counsel for the respondent. He cannot be heard to rely on section 149(d) Evidence Act in arguing that since the appellant relied on the condition of service of the Authority to interdict and dismiss the respondent from the Authority’s service, it (appellant) had the duty to tender the conditions of service and because of the non tendering of the said conditions of service, it should be inferred that the said conditions if tendered would have been unfavourable to the appellant. If there is any presumption it should go in favour of the appellant and not against it. It is the respondent who should be adversely affected if the said conditions are not tendered and not the appellant. In Ningi v. First Bank of Nigeria Plc (1996) 3 NWLR (Pt. 435) 220 where it was the appellants who, as plaintiff, instituted the action against the respondent claiming in the writ of summons that his dismissal was unlawful, it was held by Mohammed J.C.A. (as he then was) at pages 233 – 234 that-

“…having regard to the nature of this claim, the appellant as the plaintiff is required by law to plead and lead evidence to establish the following essential facts namely, that he is an employee of the defendant, how he was appointed and the terms and conditions of his appointment, who can appoint and remove him, the circumstances under which his appointment can be terminated and the person or authority who can terminate that appointment. See Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506 at 525 – 526…

I cannot therefore see how the appellant who instituted the action against the respondent alleging in his writ of summons that his appointment was unlawfully terminated by the respondent would have failed to plead in his statement of claim the terms and condition of his employment and the circumstances which made the matter in which his appointment was terminated namely his dismissal unlawful.”

This brings me to a consideration of issue No.4 i.e. having held that the respondent’s employment was wrongfully terminated, whether it was right to award to him salaries and allowances from October 1992 to January 2001. Learned counsel for the appellant referred to paragraph 12 of the amended statement of claim where it was pleaded that the plaintiff’s employment with the defendant is based on simple common law contract and does not enjoy statutory flavour to entitle him to the reliefs sought herein. It was argued that it is trite law that the remedy available to an employee who has been wrongfully dismissed or terminated from his employment under a common law contract of employment without statutory flavour is damages. The measure of damages recoverable in such cases is determined by what the employee would have earned over the period of notice required to properly determine his contract of employment and not salary for a long period of years as was done by the learned trial Judge.

The respondent’s answer to this argument is that in the circumstances of his dismissal which the trial court declared wrongful, it is difficult if not impossible for the respondent to secure any job from any organization since he has been tagged a thief. Relying on the case of Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303 learned counsel submitted that the measure of damages in a case of wrongful dismissal is prima facie the amount the plaintiff would have earned had the employment continued according to contract subject to deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing damages either had obtained or should reasonably have obtained. He submitted further that the damages should include pension and gratuity as provided by section 4(c) of the NEPA Act, Cap. 256, Laws of the Federation of Nigeria, 1990 which provides as follows:

“as regards any officers or servants in whose case it may determine so to do, to pay to, or in respect of them such pension and gratuities, or provide and maintain for them such superannuation scheme (whether contributory or not) as the Board may determine.”

The damages payable for any employment that has been wrongfully terminated are not at large. They are circumscribed by the conditions of service. Ogundare JSC put it cryptically thus in Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) at 512:

“Having held however that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as they stand, he is only entitled to what he would have earned over the period of notice” (Italics mine for emphasis).

As I stated earlier in the judgment the conditions of service were not tendered; instead the plaintiff tendered the Offer of appointment which was received in evidence as exhibit 11 and in clause (c) of the terms and conditions of the offer it was stated-

“(c) That unless dismissed, you or the Authority may terminate your appointment by a month’s notice or by payment of a month’s salary in lieu of notice.”

It follows therefore that if the Respondent’s appointment was wrongful, he would only be entitled to one month’s salary in lieu of notice and the period of notice would start running from the date the letter of termination was issued. The effect of this is that he is entitled to his monthly salary until the period of notice expires or he is paid a month’s salary in lieu of notice.

The letter of dismissal (exhibit 3) is dated 18th February, 1988.

It stipulated that the dismissal took effect from 29th May, 1987 (the day the respondent was placed on interdiction). But the letter of interdiction (exhibit 1) is dated 6th October, 1987. The learned counsel for the appellant submitted and rightly too that the effective date of termination should be 18th February, 1988. The one month’s salary in lieu of notice the respondent is entitled to should be with effect from 18th February, 1988. The appeal on damages is therefore allowed and the award calculated from 6/10/87 – 31/10/92 on all heads of claim is hereby set aside.

Learned counsel for the respondent sought to justify the award of damages made by the trial Judge by arguing that it is supposed to take care of the respondent’s pension and gratuity. The respondent never claimed for pension and gratuity. In any event, entitlement to pension and gratuity is a vested right which can only be taken away by the dismissal of the employee from his employment. Once the dismissal is declared unlawful, and the respondent had spent the number of years stipulated in the conditions of service in the appellant’s organization he should be entitled to draw his pension and be paid his gratuity. See Igwilo v. Central Bank of Nigeria (2000) 9 NWLR (Pt. 672) 302 at 339. The respondent spends 11 years in service and the issue whether he is eligible to pension and gratuity can be decided only by reference to the conditions of service. Since the allegation of theft of the transformers was not proved, the respondent’s remedy lies in an action for defamation against his accusers. See Ajayi v. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt. 62) 577.

The appeal on damages succeeds and it is allowed. The damages awarded to the respondent are reduced to one month’s salary in lieu of notice. The order nullifying the dismissal stands.

Each party to bear their own costs.

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Other Citations: (2006)LCN/2066(CA)