O. Igbinoba V. Delta Steel Company Limited (1994)
LawGlobal-Hub Lead Judgment Report
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.
The appellant who was the plaintiff in the Court below sued the respondent claiming the following reliefs:-
“1. An order declaring that the letter from the defendant dismissing him from the services of the company dated the 2nd day of February, 1984 is null and void and of no effect.
2. An order restoring him to his recently promoted position of Senior Safety Inspector.
3. An order of perpetual injunction restraining the defendant itself its agents and its privies from acting on the said letter.
4. Any other relief deem (sic) necessary by this Honourable Court.”
The case was heard at the High Court Warri before Odita J. who on 30th May, 1986 dismissed the appellant’s claim. Dissatisfied with the said decision, the appellant has appealed to this Court on four grounds of appeal. He has also filed his brief of argument in which he formulated 4 issues for determination. They are:
“ISSUE 1
Does exhibit C not make it mandatory for the respondent to constitute a Disciplinary Board/Committee to try erring officers? Even if not, did the respondent comply with exhibit C in all material particulars in the handling of appellant’s case?
ISSUE 2
Can it be said in the face of the evidence believed by the learned trial Judge, that the appellant was given an opportunity to defend himself as required by the rules of natural justice as also by exhibits C and D?
ISSUE 3
Has the respondent the last word on what act amounts to gross-misconduct?
ISSUE 4
Did the Court of trial correctly evaluate the evidence?
On issue No. 1, the appellant contends that exhibit C makes it mandatory for the respondent to constitute the Disciplinary Board/Committee to try an erring officer like the appellant. Exhibit C also makes it mandatory for a formal charge to be preferred against the appellant who should be called upon to defend himself. He argued that the word “may” used in Exhibit C imports a mandate as when used in a provision creating an obligation or issuing a directive. Counsel for the appellant argues that the trial Judge failed to resolve the issue whether “may” as used in Exhibit C was mandatory or permissive.
The Judge, counsel argued, assumed that it was permissive without stating how he came to that conclusion. Exhibit C lays down the procedure to be followed in determining the appointment of an erring staff. Counsel argues that to “thoroughly examine” the case of an erring staff necessarily imports a “personal hearing” of the staff concerned.
Counsel further argues that even if the constitution of the Board/Committee is discretionary, the court is competent to determine whether in any given case the discretion was judiciously exercised.
Arguing the appellant’s issue NO.2, it is contended on behalf of the appellant that he was not given an opportunity to defend himself as required by the rules of natural justice and Exhibits C and D. It is submitted that after Exhibit G found him to be a suspect, he ought to have been charged or queried and called upon to defend himself. After he had answered the charge or query, counsel submits, the appellant would be invited for hearing. Thus, counsel contends, the principle of audi alteram partem was breached.
Counsel refers to O.A.U. V. Onabanjo (1991) 5 NWLR (pt. 193) 549 at 557; Federal Polytechnique Mubi vs. Yusuf (1991) 1 NWLR (pt. 165) 81 at 85.
On what constitutes “gross-misconduct”, it is submitted on behalf of the appellant” that it does not lie solely with the respondent to determine what amounts to gross-misconduct. What is gross-misconduct must be judged by reference to the society’s recognised moral values. Learned counsel therefore submits that the court is competent to enquire into a conduct declared by the respondent as gross misconduct to determine if it is in fact a gross misconduct or not. Counsel contends that the issue in this case is whether a conduct which was not proved against the appellant was gross misconduct.
Finally, the appellant contends that the trial court did not correctly evaluate the evidence.
Learned counsel relied on Fatuade vs. Onwoamanam (1990) 2 NWLR (pt.132) 322; Nwoba v. Ihebie (1990) 2 NWLR (pt; 134) 539; Union Bank Ltd. v. Ogboh (1991) 1 NWLR (pt. 167) 369 at 372.
The respondent also filed a brief of argument and also formulated 4 issues for determination viz:-
“(iii) Was the appellant given a fair hearing for the alleged misconduct before he was dismissed from the services of the respondent.
(b) Did the respondent comply with the provisions of Exhibit “C” and/or are the provisions of Exhibit “C” particularly with respect to constituting a disciplinary Board/Committee to try erring officers mandatory on the respondent.
(c) Did the act of misconduct as found by the respondent against the appellant grievous enough to warrant appellant’s dismissal?
(d) Assuming but without conceding that the dismissal of the appellant was wrongful, null, and void, what is he entitled to in Law?”
Arguing the issues, learned counsel for the respondent submits that the appellant was given a fair hearing for the alleged misconduct; that it is not necessary that a formal charge as in a criminal court should be preferred against the appellant.
He submits that the appellant knew the charge against him and had the opportunity of defending himself and did, in fact, defend himself. Counsel refers to Ayitan vs. NIFOR (1987) 2 NWLR (pt. 57) 48 ratio 5.
On the second issue of the respondent, learned counsel submits that the respondent complied with the provisions of Exhibit C in dismissing the appellant, and that it was not mandatory that a Disciplinary Board/Committee must be set up before the appellant could be dismissed. Moreover, the respondent contends that the role played by the Internal Audit Investigation Panel is the same as that to be played by the Disciplinary Board/Committee. The setting up of the panel was therefore a substantial compliance within the provisions of Exhibit C assuming that the setting up of the Board/Committee was mandatory.
On whether the conduct of the appellant was such a gross misconduct to warrant his dismissal, counsel submits that it was within the discretion of the respondent to decide whether appellant’s conduct was a case of gross-misconduct. Furthermore, counsel submits that a complaint which charged the appellant of presenting for payment fake or forged vouchers and/or abetting in the commission of such an offence was by all standards a gross-misconduct.
The respondent argues that even if it is found that the appellant was wrongfully dismissed his entitlement was one month’s salary in lieu of notice or damages for wrongful termination of his appointment.
It is submitted that it is only in a case of where the contract of employment has a statutory flavour that a court of law can order a reinstatement.
The onus is on the appellant, counsel agues, to prove that his appointment has a statutory flavour. It is further submitted that the appellant has not claimed any damages.
In a reply brief, the appellant contends that the respondent’s issue No.4 is not raised by any of the grounds of appeal. The lower court, counsel submits, did not consider what would have been the entitlement of the appellant if he had succeeded. The natural inference therefore is that the court would have granted the reliefs claimed. Learned counsel asks that issue 4 of the respondent’s brief be struck out as incompetent.
Counsel further argues that it is not only in cases of contract of employment with statutory flavour that a court can order re-instatement of a wrongfully dismissed staff. An order for re-instatement, counsel argues, is an equitable remedy which can be granted whether the contract of service has a “statutory flavour” or not. Counsel refers to Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599 at 681-685; Hill v. C.A. Parsons & Co. Ltd. (1972) 1 Ch. 305 at 313-315.
The main issue for consideration in this appeal is the appellant’s issue No. 2 and the respondent’s issue (a) i.e. whether the appellant was given a fair hearing as required by the rules of natural justice and also having regard to the provisions in Exhibits C and D. I shall deal with this issue of fair hearing together with the other issues raised in this appeal.
Before I deal with the law relating to fair hearing in so far as it concerns this appeal, let me deal briefly with the facts on which the law will hang.” Two Exhibits are relevant viz – Exhibits C and D. Exhibit C is a circular letter dated 3rd February 1981 ref. No. EST – Circular 1/1981 directed to all Heads of Divisions, all Heads of Department and all Sectional Heads of the respondent company streamlining the procedure to be adopted in taking disciplinary action against the members of the staff of the respondent. In view of the relevance of this exhibit in this appeal I shall set out the body of the exhibit verbatim. It provides as follows:
“DISCIPLINARY PROCEDURES
It has been observed with increasing concern in recent months that some officers issue queries, dismiss, terminate, suspend and interdict defaulting staff without reference to the Personnel Department.
For the voidance of doubt any letter of dismissal, termination, suspension and interdicting issued to serving staff not duly signed by a Personnel Officer following the approval of the management is null and void. For the purpose of proper harmonisation of functions, this unusual practice by some over zealous officers should be halted as its continued practice may have untold adverse effects on personnel administration in this young organisation. There should be a clear cut administration of functions.
2. Henceforth, the procedure to be followed when an erring officer is to be discipline is as follows:-
Any Head of Department or Division or Section could issue queries to any staff who is found wanting in the discharge of his legitimate duties. Copies of such queries together with the representations of the defaulting staff including the comments and recommendations of the appropriate Head of Departments/Divisions/Sections should be forwarded to the Assistant General Manager (Personnel & Training) for action. After a thorough examination of the case, the Personnel Department would take ultimate action if the staff falls within salary grade level 06 and below.
Where an officer on salary grace level 07 and above is involved his/her case would be referred to the management or General Manager with comments for a decision. In both cases, it may be necessary to constitute Disciplinary Boards/Committees to examine the charges levelled against the erring officer with a view to recommending to the management appropriate disciplinary action to be taken against a defaulting staff if adjudged guilty.
3. For the purpose of clarification disciplinary actions against any erring staff are as follows:
(i) Summary dismissal
(ii) Termination of appointment
(iii) Reduction in rank
(iv) with-holding of increment
(v) Reprimand
(vi) Warning
(vii) Suspension from duty
(viii) Interdiction
Items VII & VIII are temporary in nature, pending the determination of a case of misconduct against an officer.
4. Offences which are likely to be committed by staff and attract appropriate punitive measures are as follows:
(i) Absent from duty without permission.
(ii) Disclosure of Secret/Confidential official information to unauthorised persons without the permission of the Head of Department.
(iii) Unauthorised lifting of information from official files for dissemination to the members of the public.
(iv) Bankruptcy
(v) Fighting during office hours
(vi) Criminal offence giving rise to intervention by police
(vii) Engagement in private business thereby utilising official hours for the pursuit of personal and private enterprises.
(viii) Any act adjudged to be of moral turpitude anti pre-jusicial to the good name of the company.
(ix) Pool betting and gambling.
5. It must be emphasised that traffic offences do not attract punitive measures but officers who posses vehicles are duty bound to obtain valid particulars for their vehicles when due to avert embarrassment by law enforcement agents.
6. In the light of the foregoing, it is hoped that all cadres of staff would as from the date of this circular letter adhere strictly to the disciplinary procedures as enunciated in the preceding paragraphs. The substance (sic) of this circular letter should be promptly brought to the notice of all subordinate staff for strict compliance.
7. Any doubt arising from the interpretation of any section of this circular letter should be referred to the undersigned for clarification.”
Thus, for any member of the staff to be disciplined, the procedure laid down in the exhibit (Exhibit C) must be followed. Exhibit D contains the conditions of service of the staff of the respondent company. Pages 20-21, paragraph 3.48 contain matters relating to staff disciplined. Again, in view of the importance of paragraph 3.48 of Exhibit D in this appeal, I set it out hereunder:
“STAFF DISCIPLINE
Dismissal, or termination of appointment or suspension from duty shall be in accordance with the following disciplinary code:-
Gross Misconduct or Serious Negligence:
Summary dismissal may be effected by the company without notice or without any entitlement at any time in the event of an employee being guilty of any serious misconduct or non-observance of the company’s regulations. It shall be gross misconduct if member of staff:
(a) is convicted of any criminal offence (other than contravention)
(b) is guilty of fraud or forgery
(c) makes material false statement at the interview leading to his appointment
(d) is guilty of breach of secrecy or security relating to any matter affecting the company’s business
(e) derives any benefit in the course of his official duties which benefit placed him in such a position that his personal interest and his duty to the company is to any client of the company are in conflict
(f) involves the company or any person having business with the company in serious financial loss, death or damages through negligence or incompetence
(g) refuses to proceed on transfer or redeployment as when directed by management.
(h) absents himself without leave or other legitimate cause from the performance of his work and if such absence covers five or more consecutive days, the company reserves the right to consider that he has abandoned his employment.
(i) incites workers against management
(j) commits any other offence which may be adjudged by the management to be gross misconduct.”
For a member of the staff to be disciplined by dismissal, termination of appointment or suspension from duty, he must be guilty of a breach of an item or more of the disciplinary code as contained in paragraph 3.48 of Exhibit D. It must be observed that some of the items of what constitute a misconduct in Exhibit D are also contained in Exhibit C.
While Exhibit D specifies the misconduct which shall attract disciplinary sanction, Exhibit C lays down the procedure to be followed. The two exhibits shall therefore be married together in effecting a disciplinary measure on an erring member of the staff.
A failure to observe the procedure laid down in Exhibit C will amount to a breach of the principle of fair hearing. But first and foremost, the erring staff must be in breach of a condition of service as contained in exhibit D or has committed or be guilty of any of the “offences” contained in Exhibit C.
Now, the appellant was dismissed for being involved in a “syndicate of signature forgeries” See Exhibit F. Before his dismissal, he was suspended for “gross misconduct” – See Exhibit E. Paragraph 1 of Exhibit E states as follows:-
“In view of the case of gross misconduct in which you were both involved on 2nd and 3rd January, 1984, you are hereby suspended from work without pay for a period of one month pending the outcome of the investigations of your case.”
This letter of suspension was written to the appellant and one other member of the staff. The investigations referred to in Exhibit E seems to be contained in Exhibit G (See pages 68-72 of the record of appeal). Exhibit G is an “INTERNAL AUDIT REPORT ON INVESTIGATION INTO SIGNATURE FORGERIES & FALSE CLAIMS.” Exhibit G recommended the immediate dismissal of the appellant and one other (See paragraph 2 of the “RECOMMENDATIONS” at page 72 of the record of appeal). The appellant was accordingly dismissed. The question now is – was the appellant given a fair hearing before he was dismissed? Before I deal with what amounts to fair hearing in law, let me examine what attempts, if any, that were made to enable the appellant defend himself against his alleged “involvement in a syndicate of signature forgeries”, for that was why he was dismissed as stated by Exhibit F. Part of Exhibit F states:-
“DISMISSAL
Management has observed with utter dismay your involvement in a syndicate of signature forgeries and has decided to dispense with your services. You are hereby dismissed from the services of this company with effect from 3rd February, 1984.”
In his evidence in court the plaintiff testified as follows:-
“I was not asked for any explanation before I got the dismissal letter Exhibit F. There was no charge preferred against me. I did not appear before any audit panel of the defendant company.
I am not a party to signature syndicate in the defendant company.”
This piece of evidence was not challenged in cross-examination. Still on this point, D.W.3 in the concluding part of his evidence in-chief said that “the plaintiff was given a chance to defend himself during the audit investigation panel”. The nature of the chance was not stated. D.W.1 had also said that during the internal auditing, he found forged payment vouchers. He went on:
“I wanted to know those that were using the forged vouchers to claim money from the defendant company. I interrogated the plaintiff who made a statement. Plaintiff informed me that one Eyituoyor gave him the voucher. The plaintiff made a statement in writing. I called Mr. Eyituoyor in the presence of the plaintiff and Mr. Eyituoyor denied.”
D.W.1 then tendered Exhibit G. It is noteworthy that the statement in writing made to this witness was not produced.
In Exhibit G, the appellant was identified as a member of the “forgery syndicate”. Exhibit G recommended his dismissal. As stated earlier, the appellant was accordingly dismissed. There is nothing in Exhibit G to show that when the appellant was identified as a member of the forgery syndicate he was confronted with the allegation and called upon to defend himself against the charge.
I shall now deal with Exhibits C and D. Exhibit C lays down the procedure to be adopted in disciplining a member of the staff by way of dismissal, termination of appointment, suspension or interdiction.
According to Exhibit C, the procedure may be summarised as follows:
(i) A query shall be issued to the erring staff who is found to be wanting in the discharge of his legitimate duties.
(ii) Copies of the query together with the representation of the erring staff including comments and recommendation of the appropriate Head of Department/Division/Section should be forwarded to the Assistant General Manager. (Personnel and Training) for action”.
(iii) After a thorough examination of the case, the Personnel Department would take ultimate action if the staff falls within grade level 06 and below. Where the officer is on salary grade level 07 and above, his case would be referred to the management or the General Manager with comments for a decision.
(iv) In either case, it may be necessary to constitute a Disciplinary Board/Committee to examine the charge levelled against an officer with a view to recommending to the management appropriate disciplinary action to be taken against the defaulting staff if adjudged guilty.
It will be noticed that the above procedure laid down by the respondent for disciplining an erring staff will ensure fair hearing.
The portion of Exhibit D which deals with Staff Discipline has already been set out in this judgment.
Exhibit D, sets out what shall constitute gross misconduct for which an employee of the respondent may be summarily dismisses. Paragraph 3.48 (j) provides that an employee may be summarily dismissed if he “commits any other offence which may be adjudged by the management to be gross misconduct”. In the case of Werner Moeller v. Monier Construction Co. (Nig.) Ltd. (supra). Savage J. held that in such a situation where a clause similar to that in paragraph 3.48(j) of Exhibit D page 21 exists in the contract of service, the company has the sole responsibility of deciding what amounts to an act which is likely to bring the company into disrepute. Relying on the Moeller case (supra) the learned trial Judge of the lower court held as follows:-
“In the case under consideration, clause (j) at page 21 of Exhibit D clearly gives the defendant the discretion to say what is gross misconduct and once the defendant say (sic) that the plaintiff’s action amounted to gross misconduct, no court will consider (sic) exercise excessive and the dismissal of the plaintiff wrongful.”
The important point which appears to be lost sight of here is that the respondent must have committed the act which is alleged to be gross misconduct and he must have been given the opportunity of defending himself in respect of the alleged act. Has the appellant been given a fair hearing in respect of his alleged “involvement in a syndicate of signature forgeries” before he was dismissed?
What is “fair hearing” in law? There has been a number of judicial definitions (or should I say description) of what “fair hearing” imports. I would refer only to two of the several judicial pronouncements – one in an English Court, the other in a Nigerian Court. In Kanda v. Governor of Malaya (1962) A.C. 332 at 337, Lord Denning expatiated on the content of the Right to be heard or the right of fair hearing. Said the learned jurist:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence had been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representation did work to his prejudice.
Sufficient that they might do so … The risk of it is enough.”
In Garba vs. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 at 618, Oputa JSC (as he then was) expounded on ‘fair hearing’ as follows:
“It is my humble view that fair hearing implies much more than hearing the appellants testifying before the Disciplinary Investigation Panel; it implies much more than summoning the appellants before the panel; it implies more than other staff or students testifying before the panel behind the backs of the appellants, it implies much more than the appellants being given a chance to explain their own side of the story. To constitute a fair hearing whether it be before the regular courts or before tribunals and Boards of Inquiry the person accused should know what is alleged against him; he should be present when any evidence against him is tendered and he should be given a fair opportunity to correct or contradict such evidence. How else is this done if it be not by cross-examination?
I cannot add to the expositions of the aforementioned eminent jurists on fair hearing. Fair hearing therefore implies, that:-
(a) A person knows what the allegations against him are;
(b) What evidence has been given in support of the side allegations?
(c) Such person has a fair opportunity to correct and contradict such evidence;
(d) The body investigating the allegations against him must not receive evidence behind his back.
Applying the above requirement to the facts of the instant appeal, I am of the respectful view that the way and manner the allegations against the appellant were investigations followed by his dismissal based on the recommendation of the Audit Report Exhibit G, infringes the rule of fair hearing. The appellant was found in possession of one voucher of which the signature therein was alleged to be forged. He stated that the person who gave him the letter of authority to claim the proceeds of the voucher was one Mr. Eyituoyo who on being questioned denied doing anything with the appellant.
The Audit Panel held that Mr. Eyituoyo gave the appellant the authorisation. The panel then held that both of them were involved in a syndicate of signature forgeries and proceeded to recommend the dismissal of the appellant.
Forgery is a criminal offence a very serious offence. Being involved in a syndicate of forgeries imports conspiracy to commit the offence of forgery. The Audit Panel not being a court or a tribunal established by law was not competent to find the appellant guilty of involvement in such a criminal act and to proceed to recommend his dismissal based on such finding. The respondent was not right to act on such recommendation by dismissing the appellant. Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria provides that –
“In the determination of his civil rights and obligations…a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The Audit Panel which produced Exhibit G is not qualified as such a tribunal.
Assuming that the Audit Panel was so qualified, the haphazard manner in which it conducted its investigation deprived the appellant the opportunity of defending himself against the allegation of involvement in signature forgeries. The appellant ought to be informed of the allegations against him; he ought to know what evidence that was given in support of the allegation, he ought to be given a fair opportunity of correcting and contradicting such evidence; evidence against him ought not to be given behind his back. From the facts before the lower court, at no time was the appellant confronted with the allegation of membership of a syndicate of signature forgeries. No, person should be judged unheard.
Not even Adam and Eve were judged unheard.
In Prof. Olatunbosun v. National Institute of Social & Economic Research Council (1988) 3 NWLR (pt. 80) 25 at 49, Oputa JSC (as he then was) made the point in a very lucid way. Said the learned Justice:-
“That no man is to be judged unheard was as old as Creation, as old as Genesis and as old as the Garden of Eden. In R. v. Chancellor of the University of Cambridge (1723) 1 Str 557 at p. 567, we find Fortescue, J affirming that:-
… even God himself did not pass sentence upon Adam before he was called upon to make his defence…
And what was Adam’s defence? It was this:
“The woman whom thou gavest to be with me, she gave me the fruit of the tree and I did eat (Gen. 3:12).
God did not also condemn Eve unheard:
‘Then the Lord side to the woman what is this that you have done?’
What was Eve’s defence?” Eve said:
‘The serpent beguiled me and I did eat’. Gen. 3:13
(Passing the buck?)
Having heard both of them Almighty God proceeded to pass His sentence.
He expects us to do the same. Thus Coke that indomitable and fearless Lord Justice of the Common Plea was able to assert that, audi alteram partem, “was a principle of divine justice” proceeding with (1) vocat then (ii) Interrogat and finally (iii) Judicat.”
It is clear from the facts of this case that the principle of natural justice – of fair hearing was violently breached in dismissing the appellant.
What is more, the procedure laid down in Exhibit C for dismissing an employee of the company was not observed. The procedure has already been outlined in this judgment. There is no evidence that any query was issued to the appellant; there is no evidence that copy of any query together with the appellant’s representation and comments and recommendation of the appropriate Head of Department was forwarded to the A.G.M. (Personnel and Training).” As the appellant was on grade level 07, there is no evidence that his case was referred to the management or the General Manager with comments for a decision.” Compliance with the procedure as laid down in Exhibit C is made the No.1 issue in the appellant’s brief of argument. I do not however agree with the appellant that it is mandatory for the respondent to constitute a Disciplinary Board/Committee. Constitution of a Disciplinary Board/Committee is discretionary on the part of the respondent. Exhibit C says that “it may be necessary to constitute Disciplinary Board/Committee…”
It is within the discretion of the respondent to decide whether it is necessary to constitute one or not.
On the whole, I am of the view, and I so hold that no formal charge was preferred against the appellant before he was suspended and subsequently dismissed I am also of the view, and I so hold that a fair hearing as required by law was not given to the appellant before his suspension and subsequent dismissal. I would therefore declare his letter of dismissal null and void and of no effect.
The next question, and it is not going to be an easy question to answer having regard to the claim before the court is, what order will I make or what relief do I grant to the appellant? This is raised in the respondent’s 4th issue and the appellant’s reply brief. I have sufficiently reviewed them in this judgment.
Generally, where there has been a purported dismissal of an employee in a contract of service the court does not order re-instatement of the dismissed employee. The court does note impose on a master an unwanted servant. See Calaba Cement Co. Ltd. vs. Abiodun Daniel (1991) 4 NWLR (pt. 188) 750 at 758. But where the appointment of the employee is protected by statute; the appointment is said to have statutory flavour. In such a case the court may order re-instatement of the employee in an appropriate case – See the case of Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303 at 313; See also Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599; Shitta-Bay v. Federal Civil Service Commission (1981) 1 S.C. 40.In this case on appeal, there is nothing before the lower court to the effect that the appointment of the appellant is protected by statute. The relationship of the appellant and the respondent is that of a mere master and servant in a contract of service. In the circumstance, I cannot order a reinstatement of the appellant not to talk of his restoration to his recently promoted position of Senior Safety Inspector as claimed.
Similarly, I am unable to order an injunction restraining the respondent from acting on his letter of dismissal as that would in effect mean an order for his reinstatement. I have declared the letter null and void and of no effect.
That is the farthest I can go, having regard to the circumstances of the case especially where the confidence between the appellant and respondent has been destroyed – See Imoloene V. WAEC (supra), see also Sanders V. Ernest Neal (1974) 3 All E.R. 327.
The remedy of the appellant is in damages.
Mast unfortunately for the appellant there is no claim in damages before the lower court. The courts do not award what is not claimed – see Egonu v. Egonu (1970) 11-12 SC 111 at 133; Ekponyong v. Nyong (1975) S.C. 71; Okubele v. Oyagbola (1990) 4 NWLR (pt. 147) 723; Akinbobolu v. Plisson Fisko (1991) 1 NWLR (pt. 167) 270; U.B.A. Ltd. v. Achoru (1990) 6 NWLR (pt. 156) 254. The claim for “any other relief deem (sic) necessary by this Honourable Court” does not help the appellant. If a litigant in a case in this country, unlike England, is interested in damages, he must claim it. In Imoloeme case (supra) where the Court of Appeal awarded damages not claimed in a case of wrongful dismissal as in this case, the award was set aside by the Supreme Court. The appellant’s case in this appeal seems to be bedeviled by a number of self inflicted misfortunes, for in the “Relief sought from the Court of Appeal” in his Notice and Grounds of appeal, he stated as follows:-
“The said judgment of the High Court IV Warri be set aside and case DISMISSED.” (Capitals & underlining mine) See page 75, lines 1-3 of Record of Appeal.
Having found that the dismissal of the appellant is wrongful not having been given a fair hearing before his letter of dismissal dated 2nd February, 1984 was served and him, I can only declare the letter null and void and of no effect as clamed.
Beyond this, I can regrettably do no more. In the final analysis, this appeal succeeds in part only.
I allow the appeal against the dismissal of the first arm of the claim. I declare that the letter from the respondent dismissing the appellant from the services of the respondent dated 2nd day of February, 1984 is null and void and of no effect. The appeal against the dismissal of the other reliefs claimed is dismissed. The appellant shall have costs of this appeal fixed at N500.00.
Other Citations: (1994)LCN/0183(CA)
