Saadu A. Saliman V. Kwara State Polytechnic & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The appellant herein, was the plaintiff before the Hon. Justice Gbadeyan of the High Court of Justice Kwara State, holden at Ilorin. The appellant instituted this action by way of originating summons pursuant to Order 6 Rule 2 of the High Court (Civil Procedure) Rules dated 13th day of July, 2004. The originating summons was asking the High Court to determine the following question:
“Is the purported dismissal of the plaintiff, a staff of the Kwara State Polytechnic by the defendants as conveyed in a letter dated 15th April, 2004, for no stated or known cause and without any notice or hearing of whatever nature not ultra vires, unconstitutional, illegal, null and void having regard to the Provisions of S.36 of the Constitution of the Federal Republic of Nigeria, 1999, (sic) and/or the State Polytechnic Edict, No. 13 of 1987, in particular Section 33 thereof?”
After which the appellant sought the following two reliefs:-
“1. A DECLARATION that the purported dismissal of the plaintiff from the employment of the 1st defendant is ultra vires, illegal, unconstitutional, null and void for want of fair hearing compliance with the laid down statutory procedures.
(2) AN ORDER restating the plaintiff back to his office in the 1st Defendant with all his rights and privileges attached and without loss of promotion with effect from the date of the purported dismissal”.
The 1st and 2nd defendants, in their joint Counter-Affidavits denied the allegation in the originating Summons and declared them “untrue” as the 1st defendant set up a committee in 2003, inter alia, to look at the activities of the Bursary Unit of the Polytechnic and that the Committee invited various people who have allegation against them including the plaintiff who was found wanting and the plaintiff and others were invited before the Disciplinary/ Investigation Committee to defend themselves. They again deposed in their counter Affidavit that the dismissal of the plaintiff was in accordance with the provisions of the, State Polytechnic Edict.
After considering the averments in both Affidavits including Counter-affidavits, and listening to the counsel on both, sides, the trial court found no merit in the claims of the plaintiffs and consequently dismissed them. The learned trial Judge J.Y. Gbadeyan held thus:-
“In my judgment, I find the procedure adopted as flawless, intra vires, legal and constitutionally (sic) because there is from the affidavit evidence of the 1st and 2nd defendants which I believe that there is no want of fair hearing and non-compliance with the laid down statutory procedures as the plaintiff was well aware of the case against him. I am fortified in my view that there is no more requirement for court pronouncing on allegation bordering on Criminality before dismissal is effected by the Supreme Court decisions in ARINZE Vs. FBN LTD. (2004) 12 NWLR (PT. 888) 663 AT 677 And ODUA INVESTMENT LTD. Vs. TALABI (1997) 1 SCJN 600 AT 646. I find the dismissal in the circumstance justified and proper. The plaintiff’s case is hereby dismissed”. See page 42 of the Record of Proceedings.
It is against this judgment that the plaintiff now appellant appealed to this court. The appellant in his Notice of Appeal dated 14/12/2004 raised six (6) grounds of appeal. I do not think that it is necessary to reproduce the said grounds at this stage.
In accordance with the rules of this Court Order 6RR 2 & 4 of the Court of Appeal Rules both parties filed and exchanged briefs of argument. While the appellant, in addition, filed a reply Brief. In the appellant’s Brief dated 17/2/2005, two issues for determination were formulated thus:-
(a) Whether the learned trial Judge was not wrong to have held that the dismissal of the appellant was proper regard being had to the affidavit evidence and the relevant statutory provisions in this case.
(b) Whether the learned trial Judge was not wrong to have held that there is no more requirements for court to pronounce on allegations bordering on criminality before dismissal bearing in mind the nature of the employment of the Appellant”.
The first and 2nd respondents distilled two issues for our consideration of the appeal as follows:-
“(1) Whether, having regards to the circumstances of this case, the appellant was properly and lawfully dismissed from the services of the 1st respondent.
(2) Whether pronouncement of guilt by a court of law on allegation bordering on criminality is a sinequanon to the validity of dismissal of an employee on allegation of gross misconduct”.
At the hearing of this appeal on 19/9/2005 learned Counsel for the Appellant Mr. Dayo Akinlaja adopted his Briefs of argument, reply brief inclusive, and urged the court to allow the appeal.
The 3rd respondent, Alhaji S.A. Isan the Hon. Attorney-General Kwara State, in his Brief of argument dated 20/5/2005 also similarly formulated two issues for determination of the appeal thus:-
(1) Whether the learned trial Judge was, right to have held that the dismissal of the appellant was justified and proper.
(2) Whether the learned trial Judge was right to have held that there is no more requirements for court to pronounce on allegation bordering on Criminality before dismissal”.
I have read and digested the issues formulated by all the parties, and found them, in substance, the same and therefore “shall be treated together by me.
The appellant on the first issue for determination submitted that the respondents violated the provisions of Section 33 of the State Polytechnic Law Cap. 20, Laws of Kwara State 1994 in the dismissal of the appellant from the employment of the 1st respondent. The appellant was not given the required notice of any allegation of misconduct, shortcoming or pending disciplinary action against him before Exhibit C, the dismissal letter was issued. Exhibit p2 – The suspension letter cannot qualify as the requisite notice under the provisions of Section 33 of the said law since it was not issued by the Council; i.e, 2nd respondent, who is the authority specified in Section 33(1) of the State Polytechnic Law to issue such notice. The same letter was issued on the directive of the Acting Rector, by a delegate of the Registrar of the Institution and that by virtue of Section 33(4) of the law, it is only the Chairman of the Council that can suspend a staff pending disciplinary proceedings and not the Rector.
It was also his contention that the appellant was not afforded the opportunity of making representation in person before the Investigation Committee to comply with Section 33(1)(c) of the law. The appellant referred to the letter of dismissal dated 13/4/2004, while Exhibit P1, the letter of suspension was dated 14/4/2004, he therefore queried, when was the appellant made to appear before the Investigation Committee between the issuance of the letters of suspension and dismissal. In order to support his submission that the alleged constitution of an Investigation Committee was a farce, he queried, who are the members of the Committee and when did they meet and at what time was the appellant made to appear before it? All these questions the answers to which were not provided by the respondents.
Furthermore, the appellant referred to Exhibit P1 – the White Paper which was dated January, 2004, while he was suspended in April, 2004, the purports of this, counsel continues, is that he had been found guilty before he was suspended on an alleged act of gross misconduct, he therefore submitted that this is a case of condemnation before trial.
He then quickly referred to the finding of the trial Judge where he held that the appellant probably saw the Secretary as mere conjecture, not based on the evidence before it. See page 42 of the record 1st paragraph thereof. This, he submitted is beyond the province of the trial Judge. He cited the case of ONAGORUWA V. ADENIJI (1993) 5 NWLR [PT.293] 317 AT 346; and NNPC VS. FEMFA OIL LTD. (2003) FWLR [PT.155] 794/812 where this court held that it is trite that courts of law do not act on speculation but on proved facts at p.812 per Oduyemi J.C.A.
Finally, he submitted that the dismissal is null and void as it was done outside the scope of the statutory procedure and therefore amounts to a breach of the appellant’s right to fair hearing. He relied on the cases of:-
(a) FEDERAL POLYTECHNIC, MUBI V. YUSUF (1991) 1 SCNJ 11 AT 17.
(b) UNTHMB V. NNOLI (1994) 10 SCNJ 71 AT 88 – 91.
The appellant is therefore entitled to be re-instated.
On the second issue, he submitted that the cases of ARINZE V. FIRST BANK OF NIG. LTD. (2004) 12 NWLR [Pt.888] 663; Or (2004) 5 SCNJ 183, is distinguishable from the facts of the instant case, the employment in issue in that case was a simple case of employee and employer not covered by Statute as it was in the case of FCSC V.
LAOYE (1989) 2 NWLR [PART 106] 625 OR GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR [PART 18] 550.
The 1st and 2nd respondents counsel on this issue submitted that the report of the Committee set up by the 1st respondent showed that the appellant was involved in acts of gross misconduct and that the appellant was aware of these facts since January, 2004, when the report of the Investigating Committee was out. The dismissal of the appellant was the letters of suspension and dismissal – Exhibit P2 and Pc respectively. Learned Counsel then submitted that the law is sacrosanct and in Order to establish a duty to act within the principles of fair hearing all that is required is that the body only needs to act fairly and not necessarily judicially. He cited the case of FALAMO V. LAGOS STATE PUBLIC SERVICE COMMISSION (1977) 5 SC P.32 AT PAGE 37. He submitted that the unchallenged facts in his counter Affidavit showed that appellant admitted that he was given notice of the allegations against him and he was given the opportunity to defend himself.
On the issue of re-instatement, the learned Counsel submitted that by virtue of “Exhibit A” the respondent may terminate his appointment by one month’s notice in writing or by payment of one month’s salary in notice thereof, hence the court cannot force the appellant on the respondents. He relied on the cases of:-
(i) OBO C. COMMISSIONER OF EDUCATION, BENDEL STATE (2001) 1 SC [PART 11] 52 AT 58, AND
(ii) OSAKWE V. FEDERAL COLLEGE OF EDUCATION ASABA (2002) 7 NWLR [PART 705] 222 AT 241.
Since the appellant was found to have earned the sum of N177,000.00 fraudulently, he would/could not be re-instated.
On the second issue, counsel submitted that since the appellant was given fair hearing before his dismissal, the said dismissal cannot be said to be invalid by reason of not subjecting him to criminal prosecution. He cited the cases of NNB PLC VS. IMONIKHE (2002) 5 NWLR [PART 760] 294 AT 324; BABA V. NCATC (1991) 5 NWLR [PART 192] 338 AND SALIHU V. FOUGEROLLE (NIG) P.L.C. (2003) 7 NWLR [PART 818] AT 15 – 16. He therefore submitted that where an employee has been given fair hearing in cases bordering on gross misconduct or criminality, he can be dismissed summarily without reference to court for prosecution – ARINZE V FBN LTD Supra at p. 663.
The learned Counsel to the 3rd respondent practically and correctly too adopted the submissions in the 1st and 2nd respondent’s joint Brief of argument and did not wish to add anything.
My Lords, let us take the bull by the horns. I would like to state from the outset that the relationship between the appellant and the respondents is governed by the provisions of the State Polytechnic Law Cap. 120, the Laws of Kwara State of Nigeria, 1994. Hence, the appellant’s employment has statutory flavour. Therefore, in order to determine whether the dismissal of the appellant was valid or not, a closer look has to be placed on the procedure leading to the dismissal i.e. whether the provisions of the law were complied with or not. In the instant case, the appellant alleged that he was not given any notice of allegation against him and neither was he afforded an opportunity to appear in person before any Investigation Committee to defend himself of any allegation while the respondents, on the other hand, submitted that all the procedures were dutifully followed. I think it is pertinent to reproduce the relevant provisions of the law as follows:-
Section 33(1) of the State Polytechnic Law of Kwara State 1994 provides thus:-
“33(1) If it appears to the Council that the Rector, Deputy Rector or any of the confirmed members of the Academic or Senior Administrative or Technical Staff of the Polytechnic should be disciplined or removed from office or employment, the Council shall:
(1) give notice to the person concerned specifying the reasons therefore;
(b) make arrangements for an Investigation Committee to investigate and report on The matter.
(c) afford the persons concerned opportunity of making representation in person, on the matter before the investigating committee” (Italics mine).
My Lords, these provisions with respect are made to guarantee fair hearing to the officers and men of the Polytechnic in case of any allegation made against him or her, and definitely accords with the spirit of the 1999 Constitution of the Federal Republic of Nigeria, Section 36 thereof. In the instant case, the appellant averred in the affidavit in support of the originating Summons as follows;-
“6. That since my employment with the 1st plaintiff (sic) I have striven to perform my duties and assignments with the highest sense of responsibility and to the best of my endeavours. That I have not at any time been queried or found wanting in the performance of my duties since I joined the 1st Defendant in 1983.
(8) That sometime in April, 2004, I was given a letter of dismissal from the service of the 1st Defendant supposedly on the directive of the 2nd and 3rd Defendants.
(9) That in the said letter dated 15th April, 2004, it is stated that I should be dismissed with immediate effect from the service of the 1st Defendant consequent upon the release of the Kwara State Government White Paper on the report of the “Committee on the Kwara State Polytechnic Crises”. Now shown to me and marked Exhibit “C” is a copy of the said letter of dismissal.
(10) That no reason is stated in the letter of dismissal for my dismissal from the employment of the 1st Defendant.
(11) That there was no notice of any disciplinary proceedings or whatever misconduct or short coming given to me prior to the receipt of the letter of dismissal.
(12) That I was not accused of any misconduct, wrong doing or short comings in respect of my employment prior to the receipt of the letter of dismissal.
(13) That I was not invited to appear and I never appeared before any committee or official of the Defendants to defend any allegation of misconduct, wrong doing or short coming of whatever nature before I was given the letter of dismissal.
(14) That I was never invited to appear and I never appeared before the committee on the Kwara State Polytechnic Crises referred to in the letter of dismissal to answer to any allegation in connection with the alleged Polytechnic Crises.
(15) That up till date, I do not know the reason or cause for my dismissal from my employment with the 1st Defendant”.
The 1st and 2nd defendants therein answered in their counter-affidavit as follows:-
“5. That I know as a fact that due to series of complaints from students and other members of the Polytechnic Committee in year 2003 among others, to look at the activities of the Bursary Unit of the Polytechnic.
(6) I know as a fact that the Committee invited various people who have allegations against them including the plaintiff.
(7) That in their report, the Committee found same staff in the Bursary Unit including the plaintiff engaged in fraudulent practices.
(8) That I know as a fact that in their findings the plaintiff was specifically found to be involved in the fraudulent practice of using his position as a bursary staff to alter his salary level upwards in the pay record.
(9) That I know as a fact that the committee in their findings discover that the plaintiff earned the sum of N177,840.00 above, what he should earn between 1998 and 2003. A copy of the extract of the White paper on the report of the Committee is hereto attached as p1.
(10) That I know as a fact that the plaintiff has been previously warned due to unsatisfactory performance arising out of improper conduct, dereliction of duty and other unsatisfactory conduct and behaviour which had led to series of queries and suspension. Thus, the plaintiff was suspended in April, 2004 to appear before the Staff disciplinary Committee consequent upon which he was dismissed. A copy of suspension letter is hereto attached and marked p.2.”
Again, my Lords for proper understanding of this case, it will not be out of place to reproduce the contents of Exhibits C and p2.
Exhibit C, letter of dismissal dated 15th April; 2004.
“Dismissal from the Service Kwara State Polytechnic.
Consequent upon the release of the Kwara State Government White Paper on the report of the Committee on the Kwara State Polytechnic Crises”
I have been directed by the Governing Council to convey to you the directive of the Visitor of the Polytechnic and Executive Governor of Kwara State that you be dismissed from the Service of Kwara State Polytechnic with immediate effect. You are required to hand over all Kwara State Polytechnic properties in your possession to your Head of Department who will clear you of same and any other indebtedness to the Polytechnic.
Thank you”.
Now exhibit p2, letter of suspension dated 14th April, 2004 says:
“Suspension from office for gross misconduct
Following your Involvement in act of gross misconduct as contained in Chapter 11 Subsection 2(b) of the Regulations Governing conditions of Service which is prejudicial to the best interest of the Polytechnic, the Ag. Rector has directed that you be suspended from office. This is in accordance with the power conferred on the Ag. Rector by Chapter 11 Section 6(b) of the Polytechnic Regulations Governing conditions of Service.
(2) The suspension will last until the case against you is disposed off and it will be without pay with effect from 15th April, 2004.
(3) During the period of suspension, you can only report to the Secretary, Staff Disciplinary Committee for further directives, you will cease to carry out your official duties or visit your place of work except with the express permission of the Registrar.
(3) In view of the above, you are hereby requested to hand over to your Head of Department any Polytechnic property in your possession before you proceed on the suspension”.
It is also pertinent to note that Government White Paper Exhibit p1, which formed the basis of Exhibit p2, according to the respondents, was released in January, 2004.
With due respect, can the 1st and 2nd respondents be said to have complied with the provisions of Section 323 of the Polytechnic law on the face of the above stated facts? From the facts state above the following findings can be made:-
(i) No letter giving Notice to the Appellant for any allegation against him was exhibited.
(ii) Though exhibit p1, the Government White Paper was attached, no report of the alleged investigation Committee was attached. If this has been done it would have revealed the following:-
(a) The place(s) of the sittings of the Committee,
(b) The members of the Committee.
(c) The number(s) of the people that appeared before it.
(d) The allegations against the appellant or any other persons; and
(e) The conclusion/ finding of the Committee.
(iii) The deponent to the counter-Affidavit on behalf of the 1st and 2nd respondents, Pastor M. O. Salami, never averred any where that he was a member of the Investigation Committee, and neither did he participate in the proceedings of the committee.
(iv) No letter of invitation requesting the appellant to attend the sitting of the alleged Investigation Committee was attached.
(v) Though the 1st and 2nd respondents averred that the appellant was involved in various act of misconduct, no query was attached except Exhibit p2, which discloses no act of misconduct”.
Nonetheless, with all the above, learned trial Judge held thus:-
“From the foregoing, it was crystal clear that the plaintiff was not left in any doubt that there were serious allegations against him or fraudulent practices which went on for a long time. The White Paper was out in January 2004. He was ordered to see the Secretary Staff Disciplinary Committee on 14/4/2004. He probably saw the Secretary. He was dismissed from Service on 15/4/2004”. See p.42 of the Record.
With tremendous respect to the learned trial Judge, this findings is without basis and definitely not based on the affidavit evidence placed before him. It is clear that Exhibit P1, the White Paper, had already found the appellant guilty of fraudulent practices as at January, 2004, before he was suspended in April, and consequently dismissed on the 15th April, 2004. The appellant could not be said to have been afforded an opportunity to defend himself when there was no evidence of fixing him with the allegation made against him, no report of the purported Investigation Committee was made available to allow the court opportunity to appraise the procedure adopted, and no evidence that the appellant was afforded the opportunity to attend the Committee in person to defend himself. I therefore hold that the respondents have failed to comply with the provisions of Section 33(1) of the State Polytechnic Law of 1994 Kwara State and as such the appellant has been denied the right to fair hearing. The appellant’s dismissal is outside the scope of the statutory procedure guiding the relationship between the parties and to that extent is null and void.
See the cases of FEDERAL POLYTECHNIC MUBI VS. MUSA (1998) 1 SCNJ 11 AT 17 -18; UNTHB V. NNOLI (1994) 10 SCNJ 71 AT 88- 91.
The cases of FALOMO V. LAGOS STATE PUBLIC SERVICE COMMISSION (1977) 5 SC 32 AT 37; RAYMOND DONROE VS. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 4 SC [PT.11] 56, cited by the respondents on the point, that when an administrative Tribunal has afforded a party the right of fair hearing, the party against whom allegation has been made can be dismissed summarily without recourse to court, do not apply to this case. I have earlier held that the appellant was not afforded a right of fair hearing in this case particularly as required by Section 33 of the Polytechnic Law, and therefore he cannot be summarily dismissed. On the second issue for determination, I entirely agree with the submission of the learned counsel to the 1st and 2nd respondents that while administrative tribunal cannot usurp the functions of the conventional courts in the hearing and determination of criminal cases, however in the cases of Master and Servant relationship, where an employee has been accorded the right of fair hearing by Administrative Tribunal and/or the employee had admitted his guilt, then the employer can summarily dismiss him without recourse to court for criminal prosecution. Two ingredients must be established that is:
(1) The administrative Tribunal acted fairly and justly but not necessarily judicially. See FALAMO V. LAGOS STATE PUBLIC SERVICE COMMISSION Supra at 37, and/or
(2) The employee must have admitted his guilt. See SALIHU V. FOU-GEROLLE- (NIG) PLC Supra at p.15 -16.
In the instant case, none of these situations has taken place. I therefore hold that the appellant was wrongfully dismissed in this case.
Having held that the appellant’s dismissal was null, void and unconstitutional and taking into consideration the nature of the employment i.e. the statutory flavour, the necessary order to make is that of re-instatement – THE COUNCIL OF FEDERAL POLYTECHNIC MUBI V. YUSUF & ANOR (1998) 1 SCNJ 11 AT 16 – 18.
Where the law says that the victim shall be re-instated the question of imposing on the respondent an unwilling employee shall not arise. The wisdom underlying the position of the law is much greater than any other consideration.
Finally, my Lords I hold that this appeal is pregnant with a lot of merits and it is accordingly allowed. The judgment of the trial court delivered on 2/12/2004 is hereby set aside. Consequently, the appellant’s claims are granted and it is accordingly ordered as follows:-
(i) The purported dismissal of the plaintiff from the employment of the 1st defendant/respondent is ultra-vires, illegal and unconstitutional for want of fair hearing and non compliance with the laid down statutory procedure.
(ii) The appellant is hereby ordered to be re-instated back to his office in the 1st respondent with all rights and privileges attached thereto and without any loss of promotion with effect from the date of the purported dismissal.
Costs shall be in the cause.
Other Citations: (2005)LCN/1832(CA)
