Nigerian Telecommunications Plc V. Emmanuel O. Awala (2001)
LawGlobal-Hub Lead Judgment Report
OMAGE, J.C.A.
The respondent was until 6/4/87, in the employment of the appellant known now as Nitel. Prior to this, the respondent was appointed into the service of the Ministry of Communication, and in the service of the federal public service, under the Ministry of Establishment. By the admission of the respondent, the entire staff in the public service, in the Ministry of Communication were in 1984, given an option to elect which of the existing three bodies will be its employer. The three bodies are: (1)(i) the Ministry of Establishment (ii) the Nitel, and (iii) Nipost. The evidence of the respondent in this appeal in the court below, show that he elected to go to the Nitel. Before the conversion in 1984, when the respondent elected to go to the Nitel, his status with the Ministry of Establishment was one of the Chief Engineer. Upon the election of the respondent to go to the Nitel he was designated as Senior Manager. The respondent was given a letter of appointment dated 17/6/85. At the inception of the Nitel, the appellant in this appeal, a new condition of service was created, and the respondent admits that the new condition of service governed his relationship with his new employer except that he averred that he remained a civil servant. In his claim before the court below, the respondent averred that:
(1) he remained a public servant,
(2) that even if his appointment was to be determined by dismissal by Nitel, it must be by a decision made by the Board of Nitel, and not the management. Sometime in the course of the respondent’s appointment with the Nitel, in a position of the principal of Nitel Training School in Kano, a report was made of the theft of 11 KVA Panel.
The Nitel instituted a panel of inquiry. The terms of reference of the panel of inquiry is contained in Exhibit 15 tendered at the hearing. Upon the recommendation of the panel which is proceeded by the suspension of the respondent, the respondent was subsequently dismissed from the service of Nitel when the report of the panel was submitted to the management of the Nitel. The above is the substance of the matter in the court below and the said court, gave judgment in favour of the plaintiff. The defendant was dissatisfied he filed this appeal.
I wish to consider the issues formulated by the parties in this appeal but, before then, it is worth while to start from the beginning, as contained in the plaintiff’s record.
In this appeal, the plaintiff sought in the Kano High Court the reliefs listed in his amended statement of claim. The reliefs are:
“(a) A declaration that the dismissal or purported dismissal of the plaintiff by the defendant as contained in the dismissal letter ref. No. DDIR/IND/2290/d3/BF of or dated 15/9/80, from the service of the Nigerian Telecommunication; Nitel, with effect from 16/9/86 is unconstitutional, unlawful, null, void and of no effect, in that:
(i) It is against the principle of natural justice, equity and good conscience.
(ii) The said dismissal is ultra vires the power of the 3rd and 2nd defendants, who purportedly effected same as such power of dismissal only reside in the Board of Nitel duly constituted.
(b) An order directing the defendants to reinstate the plaintiff to his status without prejudice to entitlement and promotion on which might have accrued to him during the period of his purported dismissal.
(c) A declaration that the plaintiff is still in the service of the Nigerian Telecommunication (Nitel) and is entitled to his full remuneration and leave bonus from the date of the purported dismissal.”
Thereafter the plaintiff supplied 26 items of particulars of his entitlement, up to March, 1993. These include annual salary from 1986-1989, leave allowance, transport allowance etc.
After filing the memorandum of appearance, the defendant now appellant denied in its amended statement of defence, the averments and claim in the plaintiffs statement of claim. The defendant admits that it is a limited liability company, owned by the Federal Government of Nigeria. That the condition of service of Nitel staff is as provided for in the Nitel’s condition of service only. The defendant admitted that it constituted an administrative enquiry to investigate generally the reported crisis impropriety and corruption at its training centre in Kano, where the respondent was a principal.
Subsequently, it issued a query to the plaintiff/respondent specifically, requiring the respondent to explain his alleged involvement in the negligence resulting in the theft of the 11 KVA panel in the school premises. The defendant concluded its claim by saying viz’.
“Whereof the defendant pray this honourable court to dismiss plaintiff’s claim, on account of it being frivolous, vexatious, misconceived, speculative and an abuse of the court process. The learned trial court of the Kano High Court received the evidence of all the witnesses and ruled as follows:
Judgment is hereby, entered in favour of the plaintiff, Engineer Emmanuel O. Awala Senior Manager of Nitel, against the defendant, Nitel Company Ltd for wrongful dismissal, and the court orders for his immediate reinstatement and grant of all his entitlements due as from the period of his suspension on 28/4/86 up to today 26/4/96”
Thereafter, the court below declares the dismissal or purported dismissal of the plaintiff by the defendant as contained in the dismissal letter Exhibit 15 from the service of Nitel as unconstitutional, unlawful, null and void and of no effect.
The defendants were dissatisfied with the judgment of that court, they filed initially an omnibus ground of appeal. Subsequently the defendants filed six more grounds with their particulars. From the seven grounds of appeal, the appellant formulated four issues for determination. Here they are:
“(1) Whether the respondent was at the time of his dismissal, a civil servant and whether his service in the appellant, was governed by the civil service rules.
(2) Whether it was the appellant, who presented the respondent in the criminal charge of which, he was ultimately acquitted in appeal number CA/K/195/90.
(3) Whether the respondent was dismissed from the service of the appellant on the ground of the appellant, having found him guilty of a criminal offence.
(4) Whether in all the circumstances of the case, the respondent was entitled to any and or all of the reliefs granted him by the court below.”
The respondent filed a brief and formulated the following three Issues:
(1) Whether the trial court was wrong, when it held that the respondent, is a public servant.
(2) Whether the trial court was wrong, when it resolved that if the respondent was not being accused of any crime, he should not have been charged to court, but once charged to the court in a criminal allegation, the appellant should have waited for the outcome before dismissing him.
(3) Whether the trial court was wrong, in the light of the circumstances of this case evidence adduced, in support of pleadings to have granted all the relief of the respondent.”
In this appeal, I shall treat the issues of the parties, either alone, or may join the respondent’s issue with the appellants’ where they are similar, or where after consideration both issues may have the same answer. I now proceed to treat the issues. Issue one reads as follows:-
“The learned trial judge held that the plaintiff is a public servant in the establishment pensionable cadre, of the civil service, and has a legal status and a right to remain in service until properly removed in accordance with the civil service rules, and Nitel condition of service, we respectfully, submit that this declaration is wrong.”
The declaration of the trial quoted above, irresistibly compels the question, how many conditions of service is the respondent alone subject to? Clearly, the evidence before the court on the conditions of service of the respondent repeats the pre-eminence of the condition of Nitel staff, it is only in the case of a lacuna in Nitels condition of service that civil service condition may operate. If there is no lacuna in Nitels condition of service, it governs the respondent’s condition of service. On the issue of condition of service of the respondent in this appeal, the respondent has shown in Exhibit 13 that Nitels condition of service exists and relate to him. The respondents issue 2 asks whether the trial court was wrong when it held that the respondent is a public civil servant. Because of the contiguity of the respondents issue 2 with the appellants’ issue one, I have decided to treat the two issues together, in order to be able to answer the respondents question in issue 2. Issue 3 in the respondent’s brief is a form of an omnibus issue which traverses the whole gambit of the appeal. The answer to the question asked however, by the respondent will be answered in the consideration of appellants issue 4, and 2. The respondents issue 4 asked:-
“Whether the trial court was wrong in the light of the circumstances, of the case, evidence adduced in support of pleading to have granted all the reliefs of the respondent.”
I have written above that, the propriety or not of the decision of the court below will be determined as in the respondents issue 2, when the appellants issue one is considered. The appellants’ one issue, is whether the respondent was at the time of his dismissal, a civil servant, and whether his service with the appellant was governed by civil service rules.
The printed record, shows that the evidence before the trial court is to the effect that the respondent was initially, at the commencement of his employment absorbed into the public service with the Posts and Telegraphs; and the documents of the appellants were all tendered. Evidence in the record shows that in 1984, a questionnaire (to use the respondents word in describing the document) was given to all P & T staff, to elect where each would work. The respondent also was to make a choice or to make an option, whether he wanted to remain in the public service, or to go with Nitel or the Postal Service. By the testimony of the respondent in the court below, he elected to go to Nitel. Upon the option being made by the respondent to go to Nitel, the respondent as plaintiff in the court below deposed that, he who had been a Chief Engineer, was converted to Senior Manager with Nitel. It is pertinent to state that from that time of the election by the respondent, he became a staff of Nitel, and his condition of service is as prescribed by Nitel. The respondent himself tendered Exhibit 13 the condition of service of the staff of Nitel. In that position in the service of Nitel, the respondent ceased to be a civil servant and has with the Nitel, a position of a master and servant. The respondent being the servant and Nitel the master. The respondent had submitted in the court below, and it may be that the court below was swayed by that submission, to rule that the respondent is a civil servant, when the respondent submitted that Nitel, his employers’ shares, are owned wholly by the Federal Government of the Federation, and that it has created a statutory body in Nitel, which in turn, makes the respondent a civil servant.
The supposition is untrue. Nitel may be a public company, its staff are not civil or public servants and the appointment or condition of service does not possess any statutory flavour.
Many decision of respected jurists have settled the issue. Among these is the decision of Uwaifo, JSC, when he was in the Court of Appeal. In it, the learned Justice remarked thus:
”The fact that an employer is a statutory body, does not mean that the condition of service of its employees must be presumed to be of any special character.”
The onus to show that his employment was of the public or civil service is on the employee/claimant to show or prove it. See Udemah v. Nigeria Coal Corporation (1991) 3 NWLR (Pt.180) at 479.
In the instant appeal, the condition of service of the respondent is as contained in Nitel staff conditions of service tendered at the hearing in the court below as Exhibit 13. The respondent did not prove that his appointment was of public service. In the present dispute, the said Exhibit 13 contains all the requirements for determination of the appointment of its staff, including that of the respondent, there is therefore, no need to fill any lacuna by reference to the condition of service of a civil servant. In answer therefore, to the question whether the respondent was a civil servant at the time of the respondent’s dismissal in 1991? The simple answer is that the respondent was not a civil servant, after 1984, when he opted to go to his new employer in Nitel, up to the time of the respondent’s dismissal. See Sea Trucks Nig. Ltd. v. Pyne (1999) 6 NWLR (Pt.607) 514. The reply to respondent’s question in issue 2 is yes, when he asked whether the court was wrong, when it held that the respondent is a public servant. The answer to the respondent’s question, is in the affirmative, because as at the time of the respondent’s dismissal from the service of Nitel, he was no longer a public servant by the terms and condition of his service with Nitel. The respondent’s condition of service was as prescribed entirely by the Nitel conditions of service.
It is relevant to observe that the judgment of the court below is largely based, in my respectful opinion, on the misconception of the law on the cadre, and category of service to place the respondent. In the light of the evidence tendered in court on the terms of service of the respondent, it is clearly an error of law for the trial court to rule that the respondent being a staff of Nitel is a public or civil servant, when Nitel is admitted to be a limited liability company. Even if the Federal Government owns all the shares in the company, Nitel staff are not civil servants. Therefore, in reply to issue four, the court below was in error to grant the respondent’s relief which sought a proof that respondent was a civil servant. The respondent ceased to be a civil servant in 1984.
Issue 2 in appellants brief reads:-
“Whether it was the appellant, who presented the respondent in the criminal charge, of which he was ultimately acquitted in Appeal No. CA/K/195/90?”
This question seems to me, to be of the same pedigree with the respondent’s question in issue 3, (21) in respondents brief, when the respondent asked:-
“Whether the trial court was wrong when it;
(i) resolved that, if the respondent was not being accused of any crime, he should not have been charged to court?;
(ii) but once charged to the court on criminal allegation, the appellant should have waited for the outcome before dismissing him? Or
I intend to take first, the first part of the two questions or issues contained in the respondent’s issue quoted above. The first part of the question leads to the answer to the question raised in issue 2, in the appellants brief. Put succinctly it is this, who instituted the criminal action against the respondent? Was it the appellant? It is settled law and practice that the prosecution of a criminal trial in a court of law is by the Director of Public Prosecution to whom the power of Attorney General is delegated to prosecute all criminal proceedings in this country. The D.P.P. prosecutes the trial of offences on behalf of the State. In the Magistrate Court, the power to prosecute a criminal infraction of the law, is sometimes delegated to the Police whose function includes the investigation of allegation made against a person, who is said to breach the law. See sections 4, 5 and 3 of the Police Act. An individual who complains to the police of a criminal offence committed by another does not unless he makes a special application and obtains a fiat of the Attorney General, prosecute the offence by himself, the offence he complained to the Police. The decision therefore, to prosecute an offence is done by the State. It is wrong therefore, to say that Nitel prosecuted the respondent.
Consequently, it is the State agency on behalf of the people of Nigeria, who instituted the action in a criminal trial against the respondent. The complainant is only a witness, and not a party to the criminal proceedings. The provision of the Evidence Act, LFN, which demonstrates the above is section 35 of the Evidence Act. The effect is this, that the record of criminal proceedings in which a party is a victim, and in which the party testified, is not admissible in a subsequent trial, in a civil action in which the victim institutes claim for damages, because the person who reported it, was not a party to the criminal proceedings. This to my mind, shows that the appellant is not the prosecutor of the respondent in the criminal trial.
In effect, even if the appellant first lodged a complaint against the respondent with the Police, the decision as to whether or not to initiate criminal proceedings against the respondent is that of the State agencies i.e., the Police or the D.P.P. In answer to the respondent’s first question about the respondent, being charged to the court because he was accused of a crime, the above exposition of the law should have shown that the act of charging the respondent to the court belongs to the State not the appellant.
The appellant did not obtain a fiat to prosecute the respondent. He is only allowed to have made a report of an alleged infraction of the law to the police. The decision to prosecute the respondent, by charging him to the court, belongs absolutely to the police on behalf of the State. Consequently, the appellant is not liable for carrying out a duty, which infact it did not. The above also, answers the appellant’s issue two, when he asked whether it was the appellant who prosecuted the respondent and my analysis of the issue above, gives an answer in the negative.
The appellant did not prosecute the respondent in the criminal charge.
Respondent’s issue 3 has a second part which I shall treat presently in this judgment. The answer to the 2nd part of respondent’s issue 3 will show in the treatment of appellant’s issue 4, and issue 4 of the respondents. It is whether or as the appellant was not the prosecutor of the respondent, did the appellant need to wait until the determination of the charge in court against the respondent, before the appellant carry out its function of re-organisation? I have held above, that the respondent was the servant of the appellant by the option he made in 1984. Having elected to go to Nitel the appellant, the nature of the appointment of the respondent was bound solely by the written conditions of service of the Nitel. This is contained in Exhibit 13, which was tendered in the proceedings in the court below. Besides claiming to be in the public service under the civil service condition of service, the respondent claimed also that the parties he sued, as his employers that is Nitel and the management staff did not observe the condition of service as contained in Exhibit 13 before he was dismissed from the service of Nitel. The printed record shows that the respondent’s complaints, include the incompetence of the people, who took the decision to dismiss him; and the alleged unconstitutionality of the method of his dismissal. By the evidence in the court below, of the respondent, he received a letter from the headquarters of Nitel on 28/4/86, which placed him on an indefinite suspension for an alleged involvement in the theft of an 11KVA panel. The letter was tendered as Exhibit 14. Shortly after, the respondent said he received another letter, a memo, which informed him of a panel, a body of Nitel staff constituted by the management to look into the crisis, at the Training Centre in Kano where the respondent was the head. Among the terms of reference of the panel, set up by Nitel is to recommend any administrative punishment to be meted out to all those found guilty irrespective of Police investigation or court process. One may pause at this stage and ask if the appellant does not have a right and responsibility, to institute an enquiry into its own staff to look into the allegation of theft alleged to have occurred in its own premises?
My view is that the landlord of an enclosed area, has the right and responsibility to investigate any alleged infraction of the law which occurs on its premises. Was it wrong for an employer of the respondent, to ask the person to whom the power thereon is delegated to preside over its enclosed area to account for complaints on the premises?
After all, the power over the training school was delegated to the respondent; why should he not be asked to account for complaint on the premises? The status of each of the members of the panel doing the investigation, is irrelevant each of them appear to be of management level. It is the joint contribution by the member of the panel in the report, which is. In the process, there is evidence that the committee asked the respondent some relevant questions, after which the respondent was given an opportunity of being heard. The respondent does not deny that the report made by the investigation committee was forwarded to the management, who took the decision to dismiss the respondent. The grouse of the respondent includes the complaint that the management who decided to dismiss him was the board, which he said has no jurisdiction to dismiss him.
The appellant had testified in the court below, that there was no board in existence at the Nitel at the time that the decision to dismiss the respondent was taken; and that the function of the board at the time was being performed by the management. It is conduct evident that the journal shown to the 1st defendant witness which purported to the contrary was not tendered in evidence at the proceedings and the journal does not form part of the proceedings. The only evidence before the court is that of DW1 which shows that there was no board constituted at the time that the respondent was dismissed, and the management was entitled to take the decision as it did upon the report of the committee, which recommended respondent’s dismissal, to dismiss the respondent. Now what is the recommendation of the findings of the committee. The record in the appeal shows that the committee found the respondent to be negligent, to be tyranical, fraudulent, dishonest and to be guilty of theft and misconduct. It is the duty and function of the Police and court to deal with the issue of theft concerning the respondent. It is the absolute right of the appellant to determine the kind, or type of a person they want in their establishment; particularly, the kind of a person they want as the head of their Training School in Kano. If they decided that they do not want to leave their training school, to a person who is sufficiently negligent as not to know that a panel, or switch belonging to a contractor who is working in the premises, is stolen without the knowledge of the head of the school. Why should the appellant not remove such a person from their service, if they found negligence proved. My respectful view is that, the appellant may so decide, and were right to do so. The appellants are not saying that the head of the School has committed the theft himself, but that he was negligent in his care of contents and properties in the premises. In my view, the employer has a right to determine the services of its servant if he finds the employee negligent.
It should therefore, be clear to the respondent that it was on the reason of negligence of the respondent, that he was dismissed. In my view, the appellant has an unquestionable right once they have observed their own rules for determination of the appointment of their staff. To so determine it, it must comply with the rule of natural justice.
See Federal Service Commission v. Laoye (1989) 2 NWLR (Pt.l06) 652, (1989) 4 SC (Pt.11) at 160 per Karibi-Whyte of SC.
On the complaint of not receiving a copy of the report, the respondent is not entitled to receive a copy of the report. He did not commission it, he has no right to it. What is relevant is whether the respondent was given a hearing, before the report was written and given to the management. The record shows that the respondent was heard. See Federal Civil Service Commission v. Laoye. In answer therefore to the second part of issue 3, of the respondent, why did the appellant, not want to see the result of the trial in court? I would say, the evidence before the court, shows that the dismissal of the respondent is not because of the theft which issue was before the court but for negligence of respondent not before the court. It was because of misconduct, negligence and other sins attributed to the respondent in the report of the committee which investigated the crisis, where the respondent was the head. I held and rule, that the appellant were within their right to terminate the service of their servant, whose conduct is no longer acceptable to them. See Taiwo v. Kings Way Stores Ltd. (1950) 19 NLR 122.
I now treat the question in issue 4 of the appellants’ brief, which asked:
“Whether in all the circumstances of this case, the respondent was entitled to any or all of the reliefs granted him, by the court below?”
The respondent also in issue 4 asked:
“Whether the trial court was wrong in the light of the circumstances of this case, the evidence adduced in support of the pleading to have granted all the reliefs of the respondent?”
In my understanding, the interpretation of issue 4 of the appellant and of the respondent above is simply this, was the respondent not entitled to the judgment as made by the court below and while the appellant expects in the appeal conclusion that the respondent was not entitled to the judgment, having regards to the inadequacy of proof of his claim, in law and infact, the respondent’s expectation having regard to the overwhelming evidence tendered, is that the respondent was duly entitled to the judgment of the court below? The above opposite expectation of each of the parties to the appeal is the foundation for the expression in their separate issue 4. The facts of the case are as stated above. The main issue on which the appeal lies, is on the nature of the contract of employment between the parties and the terms of the contract. In 1984, when the respondent opted to go with the appellant, he entered into a contract of service of master and servant with the appellant, and the respondent’s tenure of service with the civil service was determined. The respondent from the date of election to be with Nitel, ceased to be a civil servant. Consequently, exhibits 1-9, evidence of his previous appointment which were tendered at the court below ceased to be relevant and should have been discountenanced by the court below. In the respondent’s new term or conditions of service with Nitel, the respondent’s position changed from one of Chief Engineer to Senior Manager, irrespective of respondent’s length of service. In the new condition of service, opted into by the respondent, he stood in a position of a servant to Nitel. No special condition distinguished the new status. The respondent’s condition of service was governed only by the appellant, Nitel’s condition of service and the court will not look outside those condition: see Katta v. CBN (1999) 6 NWLR (Pt.607) 390 Sc. The testimony, in the court below shows that the conditions were substantively complied with, when the appellant dismissed the service of the respondent. It is not the practice of the court, unless special circumstances are shown, to compel an employer to employ an employee. See Olatunbosun v. Niser (1988) 3 NWLR (Pt.80) 25. The only relief granted by court in such an event is damages, where the conditions of dismissal of the employee are not complied with.
In this case, I am of the view that in the light of the situation at Nitel, at the time of respondent’s dismissal, there was no board established, the previous one having been dissolved, the functions attributed to the board was at the time being performed by the management. The management of Nitel was in a position to determine the respondent’s appointment and it was properly done. I answer in the affirmative, the respondent’s issue 4, that the court below was in error to grant the relief prayed for by the respondent to this appeal, and I respond to the appellant’s issue that, the respondent was not entitled to any of the reliefs granted to him in the court below. In conclusion, I resolve the entire issues in favour of the appellant. I rule that the appeal succeeds and set aside the order of the trial court in its entirety. In my judgment, the findings and conclusion of the trial court was based on an error of law of the status of the respondent with Nitel his employer. The respondent was a servant of the appellant, and the respondent’s condition of service was as provided by the appellant. Respondent’s service had since 1984, ceased to be under the civil service terms. The employer Nitel had the power, and it properly dismissed the respondent when it received complaint through the panel it set up that the respondent, was negligent. I found the conclusion of the trial court wrong, when it held that, the respondent’s appointment was dismissed for the theft of the 11 KVA panel. The evidence before the court did not so show. What the evidence shows is that, the Nitel as the employer of the respondent instituted a committee of its choice who found the respondent negligent, and for other sins. In the investigation the respondent was given a hearing, which the respondent did. It is my conclusion that the court below, as the above particulars show was in error to award judgment to the respondent. I hereby, set aside the judgment, in its entirety and rule that the appeal succeeds. The claim in the court below is also dismissed. There will be no order for costs.
Other Citations: (2001)LCN/1035(CA)
