Nigerian Broadcasting Corp. V .tunji D. Bankole (1972)
LawGlobal-Hub Lead Judgment Report
C. O. MADARIKAN, J.S.C.
The appellant was the defendant, and the respondent the plaintiff, in an action (Suit No. LD/8/68) in which the plaintiff’s writ was endorsed as follows:
“The Plaintiff’s claims against the defendants are as follows:
- A declaration that the purported dismissal of the plaintiff by the defendants as an Assistant Workshop Superintendent, being an employee of the Defendants which was finally made known to him (the plaintiff) on or about 7th November, 1967, is wrongful, illegal, unconstitutional and of no effect.
- The payment over of the sum of (pound)2,466: 15:0d to the plaintiff, being arrears of salaries and basic allowance due and payable to the plaintiff by the defendants from June, 1965 to October, 1967, inclusive.
PARTICULARS OF CLAIM
(a) Salaries from June, 1965, to October, 1967, at the rate of (Pound) 76 per month (29 months) (pound)2,036:=:=:
(b) Basic allowance from June 1965, to October, 1967, at the rate of(Pound) 14: 15:=: per month (29 months) (Pound)430:15:=:=:
TOTAL (Pound)466: 15:=:=:
OR IN THE ALTERNATIVE
- (Pound) 10,000 being general damages for the said wrongful dismissal of the plaintiff by the defendants.”
The plaintiff was engaged as a Mechanic Grade III by the defendant in 1956. He rose to the rank of an Assistant Workshop Superintendent in 1965 on a salary of 76 pounds per month. When the books of the defendant/ corporation were audited, it was suspected that thirty one motor tyres valued at 1 pounds,180.18.8d delivered to the corporation between the 25th of January, 1964, and the 13th of November, 1964, were not applied for the purpose for which they were bought; and, in consequence of this, the corporation addressed a letter (Exhibit A) dated the 28th of April, 1965, to the plaintiff demanding an explanation. The letter reads as follows:
“28th April, 1965
Mr. T.D. Bankole (S.N. 472),
N.B.C.
Lagos.
Thro’ C.E.
Dear Sir,
From a recent Audit Report, it was discovered that you signed for and received 31 motor tyres size 825 x 20 valued at (Pound)1,180.18. 8d between the 25th of January, 1964 and 13th of November, 1964. These tyres were said to have been bought and fitted onto N.B.C. vehicles. Please let me know the actual vehicles onto which the tyres were fitted. In your reply, please state the licence numbers of the vehicles as well as the make.
- It was also discovered that during the same period, no log book entries were made in respect of N.B.C. Thames Trador Lorry No. LE 3004, although previous to the 25th of January, the log book was properly kept in respect of this lorry in accordance with the instructions laid down by the Corporation.
- Please let me have your reply within 48 hours of your receipt of this letter, giving your explanation as required above and, giving your reasons why disciplinary action should not be taken against you for this excessive demand of motor tyres and for your failure to keep a properly entered up log book for the above mentioned vehicle.
Yours faithfully,
(sgd.) C.G.A. Okoh.
Ag. Director of Administration.
In response to the letter, the plaintiff offered an explanation which was not considered satisfactory by the corporation; and, for the reasons set out in another letter (Exhibit C) dated the 5th of May, 1965, he was interdicted from duty.
Exhibit C reads as follows
“5th May, 1965
“Mr. T.B.Bankole, S/No. 472,
Nigerian Broadcasting Corp.
Central Engineering Unit,
Lagos.
Thro’ C.E.
Dear Sir,
With reference to your letter dated 4th May, 1965, I am directed to inform you that your explanation has been placed before the Director – General. I regret to say that it has not been considered satisfactory, with reference, particularly, to the motor tyres. You acknowledged the receipt of the tyres but you have not shown that they were applied to the purpose for which they were purchased, nor have you given satisfactory explanation of their whereabout.
I am to say that in view of the above, the, Director-General has decided that you be interdicted from duty forthwith on half pay, under Staff Regulation 506, pending the disposal of this matter.
Yours faithfully,
(Sgd.) C.G.A. Okoh
Ag. Director of Administration.”
Whilst still on interdiction, the plaintiff heard a news flash on the radio on the 9th of June, 1965, that his appointment had been terminated. This put him on enquiries, and he subsequently found out that a Tribunal had investigated the complaint against him and recommended that he should be dismissed from the service of the corporation. One of his grievances was that he was not invited to present his case before the tribunal. On the 10th of June, 1965, the Corporation addressed a letter (Exhibit F) to the plaintiff terminating his appointment. Exhibit F reads as follows:
“10th June, 1965.
Mr. T.D. Bankole,
N.B.C.,
LAGOS.
Dear Sir,
I am directed to inform you that after considering your representations and the findings and recommendations of the Tribunal appointed to investigate the irregularities in purchase or other transactions carried out by certain officers of the Engineering Division of this Corporation, it has been decided that your continued employment by the corporation will be prejudicial to the corporation’s reputation and would reflect adversely on the honesty of its staff. I am, therefore, to convey to you with regret that your dismissal from the service has been approved by the Board of Governors with effect from the 8th of June, 1965.
Any property or money belonging to the Corporation which is on loan to you should be returned to the appropriate officer of the Corporation immediately, e.g. any outstanding debt in the form of money should be paid to the Chief Accountant, while any property should be handed over to the Head of Estates and. General Services. If you are in occupation of any official quarters this should be handed over to the Estate Manager or his duly authorised representative.
Yours faithfully,
(Sgd.) G.G.A. OKOH.”
In reply the plaintiff petitioned the corporation praying that
“his dismissal be set aside or at least suspended until he had been given a chance to put his case to the tribunal or to make a defence.”
The stand of the corporation was made clearer in another letter (Exhibit O) addressed to the plaintiff’s solicitor in which it was stated that:
“the Corporation already regards the case of the dismissal of your Client as closed and does not therefore intend to enter into any negotiation or further correspondence on the matter.”
The plaintiff then decided to seek redress in the court, and, on the 28th of November, 1967, he caused the notice (Exhibit P) to be sent to the Corporation under Section 61 (2) of the Nigerian Broadcasting Corporation Act. The notice is in the following terms:
“28th November, 67
The Director-General,
Nigerian Broadcasting Corporation,
Broadcasting House,
LAGOS
BY REGISTERED POST
Dear Sir,
LEGAL PROCEEDINGS:- NOTICE OF
INTENTION TO SUE
Section 61(2) of the Nigerian Broadcasting Corporation Act.
I am acting for and on the instructions of my clients, Mr. Tunji D. Bankole, of No. 54 Odo Street, Obalende, Lagos.
My client intends to commence an action against your corporation in the High Court of Lagos State, claiming as follows:-
(1) A declaration that the purported dismissal of the plaintiff, followed by series of Police investigations, petitions, and court action, and which was finally confirmed in a letter dated 7th November, 1967, by the Secretary to the Nigerian Broadcasting Corporation, is wrongful, illegal, unconstitutional and of no effect.
(2) Payment over of the sum of (pound)2,466,15s.0d. to the plaintiff, being arrears of salaries and basic allowance due and payable to the plaintiff by the defendants from June 1965 up to October, 1967 inclusive.
PARTICULARS OF CLAIM
(a)Salaries from June 1965 to October, 1967 at the rate of (pound)76 per month
(29 months) (Pound) 2.036:=:
(b)Basic allowance from June, 1965 to October, 1967 at the rate of
(pound)14.15/ per month (29 months) (pound)430:15:
TOTAL (Pound) 2,466:15:=
OR IN THE ALTERNATIVE:
(3) (pound)10,000 being general damages for the said wrongful dismissal of the plaintiff by the defendants.
Yours faithfully,
(Sgd.) O. Ade. Okenla
CHIEF A. ADE OKENLA
Solicitor for Mr. T.D. Bankole”
He subsequently took out a writ against the defendant. That was the substance of the plaintiff’s case.
The Director-General of the Corporation gave evidence for the defence. He testified that the plaintiff was invited by letter to the sitting of the tribunal which considered the complaint lodged against him by the corporation; that the letter was not delivered to him as it was not possible to locate him; that the tribunal carried out its duties in the absence of the plaintiff; that under regulation 503(a) of the Staff Regulations, the Establishment Committee decided to dismiss the plaintiff; and that the plaintiff was dismissed by the letter Exhibit F.
In a reserved judgment, the learned trial Judge carefully reviewed the evidence and made the following findings of facts:
“From the above it is clear that the plaintiff was dismissed by the Establishment Committee. It was the Establishment Committee that appointed him and they alone had the power to remove him.”
The plea raised by the defence that the action was statute-barred under Section 61(1) of the Nigerian Broadcasting Corporation Act was considered. and rejected by the learned trial Judge. Finally, the learned trial Judge came to the conclusion that the dismissal of the plaintiff was wrongful and he awarded 971pounds damages and 150 guineas costs to the plaintiff.
The defendant has now appealed against that decision.
Although many grounds of appeal were argued before us, we consider it necessary to deal with only one of them, that is the first ground of appeal which reads as follows:
“The learned trial Judge is wrong in law when he holds that Section 61(1) of the Nigerian Broadcasting Corporation Act does not apply and consequently that the action is not statute barred.”
At the trial, there was uncontroverted evidence that the plaintiff’s dismissal took effect from the 8th of June, 1965, and that this action was commenced about 31 months thereafter, that is, on the 8th of January, 1968. It was on these facts that the defendant grounded the plea that the action was statute barred, and in rejecting that plea the learned trial Judge said;
“Counsel for the defendant submitted that since the dismissal of the plaintiff was on the 10th of June, 1965, and the action was brought in 1968 it was statute barred. He drew my attention to Section 61 (1) of the Nigerian Broadcasting Act which reads:
“No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority or in respect of any alleged neglect or default in execution of such ordinance or law, duty or authority shall lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect or default complained of or in the case of continuance of damage or injury within 12 months next after the ceasing thereof.”
In my view, Section 61(1) contemplates the position where the Corporation on the authority of an Act does an act which causes injury or trespass to a person or his property. But it does not apply to a case where the Corporation is exercising its right based on common law or on a contract. An action for wrongful dismissal, especially one of this nature, is a specie of breach of contract. This is a common right and is not based on any statute. A master acting within the limits of his authority is entitled to dismiss an employee taking proper care that his action is within the terms of his contract with the employee but such an act cannot come within the provisions of Section 61 (1) of the Nigerian Broadcasting Corporation Act.”
We are in no doubt that the learned trial Judge was in error in taking the view that Section 61(1) is restricted to acts causing “injury or trespass to a person or his property”; and does not apply to cases where the corporation is exercising “right based on common law or on a contract.’ Upon a proper interpretation of Section 61 (1), we fail to see how it could be said that the section draws such distinction. In our view, the wording of the section is clear and unequivocable. It applies to
“an act done in pursuance or execution or intended execution of any Ordinance or Law, or of any public duty or authority, or in respect of any alleged neglect or default in execution of such Ordinance or Law, duty or authority.”
and affords protection to all acts done in the circumstances contemplated by that section. Section 1 of the Public Authorities Protection Act, 1893, which is similar to Section 61 (1) of the Nigerian Broadcasting Corporation Act was considered in Compton v. West Ham County Borough Council (1939) 3 All ER 193. In that case, it was held that the breach of a contract which a public authority has the duty to make or is by statute bound to make comes within the protection of the Act. We respectfully adopt the views expressed by Crossman, J., at pp. 198 to 200 when he said:
“The defendant council relied upon the provisions of that Act. Section 1 of that Act provides as follows:
Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any action done in pursuance, or execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, 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 6 months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof……..
Counsel for the defendant council says that the keeping back from the plaintiff of the half of his salary which was kept back was an act done in pursuance or execution or intended execution of an Act of Parliament, and that, the action not having been commenced within 6 months next after the act so done, the action does not lie. Counsel for the plaintiff says that the Act does not apply because the action is for breach of contract, and he relies upon Clarke v. Lewisham Borough Council (4) and Sharpington v. Fulham Guardians (5)
The statement in HALSBURY’S LAWS OF ENGLAND, Hailsham Edn., Vol. 26, p. 294, para. 612, in the article on “Public Authorities and Public Officers,” and in the section which is concerned with the execution of a statute, duty or authority, dealing with the public Authorities Protection Act, 1893, is as follows:
“The performance, or breach, of a contract which a public authority has the power, but not the duty, to make, is not within the protection (of the Public Authorities Protection Act).
I think that that is a correct statement of the law, and I think that it also would be correct to take that in an inverted form, and to say that the breach of a contract which a public authority has the duty to make is within the protection of the Act. However, that does not make it at once possible to see how that applies to the present case, because the question is, what was the act done here in respect of which this action is brought I think that it is only a breach of contract which a public authority has the power, but not the duty, to make which is not within the Act. I think that this appears from Bardford Corpn. v. Myers (6) and McManus v. Bowes (7).
I find it difficult, really, to construe the authorities, and to arrive at the law applicable to this case from them. I think that a breach of a contract which a public authority is by statute bound to make does come within the Public Authorities Protection Act, 1893, and, as the defendant council were, by the Public Assistance Order, 1930, art. 142 (1), bound to make the appointment of the plaintiff, I hold that an action for breach of the terms of that appointment is an action within Section 1 of the Act of 1893. Art. 142 provides as follows:
- The council shall appoint a district medical officer for every medical relief district and a relieving officer for every general relief district formed pursuant to art. 20.
Thus, the appointment of the plaintiff was an appointment which the defendant council were bound to make under the Act. The action here has arisen in consequence of that appointment, and it seems to me that the best conclusion at which I can arrive as to the meaning of Section 1 of the Act is that the section does apply to an action which is to remedy a breach of a contract which the defendant council were bound to make in pursuance of the Poor Law Act, 1930, and the regulations thereunder. I should say that, under the Poor Law Act, 1930, Section 136(2), the articles contained in the Public Assistance Order, 1930, have the same effect as if they were enacted in the Poor Law Act, 1930.”
In the instant case, it seems to us that by the combined effect of Section 53 of the Nigeria Broadcasting Corporation Act by virtue of which the defendant/corporation appointed its staff, and the regulations made under Section 55(1) for the dismissal of staff, the plaintiff’s contract of employment was one which the defendant/corporation was bound to make under the Act, and as the present action alleged a breach of that contract, the defendant/corporation is entitled to the protection offered by Section 61(1) of the Nigerian Broadcasting Corporation Act. It follows that the defendant’s plea that the action was statute barred under Section 61(1) ought to have been upheld by the learned trial Judge.
In the event, the appeal must succeed and it is hereby allowed. The judgment of the High Court, Lagos in Suit No. LD/8/68 including the order for costs is set aside and we make the following orders:
(1) The plaintiff’s case is hereby dismissed and this shall be the order of the court.
(2) The plaintiff/respondent will pay to the defendant/ appellant the costs, in this court fixed at 75 guineas and in the court below fixed at 100 guineas.
SC.191/1969
