Shaidu Nda Maliki V. Michael Imodu Institute For Labour Studies (2008)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON WEST, J.C.A.

This is an appeal against the decision of the Federal High Court Holden at Borin delivered on 31st day May, 2005.

The facts of the case can be stated as follows: The Appellant joined the Respondent in January, 1990 as a Senior Administrative Officer after having passed through the due process of employment. He was issued a letter of appointment. He was in the service of the Respondent until the 13th day of October, 1992, when he was suspended indefinitely from work. The indefinite suspension was as a result of an inquiry into an allegation of contract racketeering which was contained in an article published in the Guardian Newspapers of 10th of August, 1992. The management of the Respondent empanelled a committee of enquiry to look into the allegation and to report back on its findings.

The Committee invited officers of the Respondent to appear before it and say what they knew about the “contract syndicate”. Appellant was also invited to appear before the committee to say what he knew about the syndicate. In the course of the Appellant’s appearance before the committee, he alleged that certain members of the committee testified against him, claiming that they had information at their disposal implicating the Appellant in the rumoured contract racketeering. The Appellant denied having anything to do with any such syndicate.

At the conclusion of hearing of the committee, a report was prepared and submitted by the committee, indicting the Appellant along with two other officers for their involvement in the rumoured syndicate. The management of the Respondent in reacting to the indictment of the Appellant suspended him from work indefinitely and the matter was reported to the supervisory minister, the Hon. Minister for Labour and Productivity for his information and necessary action. The suspension was followed by the termination of the appointment of the Appellant purportedly on the advice of the Hon. Minister for Labour and Productivity on the 2nd day of January, 1993.

Being dissatisfied with the indefinite suspension without pay and the purported termination of his appointment purportedly on the advice and authority of the Hon. Minister, the Appellant engaged the Hon. Minister in a series of correspondence to complain against the suspension and the purported termination of his appointment between January, 1993 and sometime in 1998, a period of about five years. Being not satisfied by the ultimate reply of the Hon. Minister confirming the fact of his dismissal from work, which was made by the Hon. Minister vide a reply to a letter which the Appellant’s counsel had written to the Hon. Minister on his behalf, the Appellant went before the Federal High Court, Holden at Ilorin in his amended Statement of Claim in 1999, seeking the following reliefs.

1. A DECLARATION that the purported letter of termination of his appointment 27/01/93 is ruse, inexistent and void;
2. A DECLARATION that his indefinite suspension from work without pay vide letter of 13/10/92 is wrongful, unconstitutional and void;
3. AN ORDER reinstating him into the Defendant’s employment with effect from 13/10/92 and his placement at the appropriate position as he would have attained but for the unlawful suspension and purported termination.

ALTERNATIVELY

Special and general damages for wrongful suspension.

Pleadings were filed and exchanged in the Court bellow, and at the end of trial, the learned trial judge entered judgment against the Appellant dismissing the claims of the Appellant in its entirety having found as a fact that same had been statute barred and also that the Appellant had failed to prove his case on the preponderance of evidence.

The Appellant, not being satisfied with the decision of the lower Court dismissing his claims, has appealed against the said decision to this Honourable Court, seeking an order of this Court to set aside the judgment of the lower Court. In his Notice of Appeal dated the 20th day of June, 2005 and filed the 21st day of June, 2005, he formulated five issues for the determination of this appeal which issues are distilled from the five grounds of appeal as contained in the Appellant’s Notice of Appeal. The essence of these grounds of appeal is of great importance in the determination of this appeal and are hereby reproduced.

The grounds of appeal with their particulars are as follows:

1. Error In Law:

The learned trial judge erred in law in holding that the Appellant’s claim is statute barred.

Particulars of Error:

(i) Contrary to the Respondent’s claim that the Appellant’s appointment had been terminated since 1993, Exhibits 9, 9A and DW13 unequivocally suggest that the Appellant’s appointment had not been terminated.

(ii) There was ample evidence in Exhibits 2, 9, 9A and DW13 to support Appellant’s claim of continuance of injury, especially as the Appellant was at all material times, on indefinite suspension.

(iii) The learned trial judge’s finding that the action was statute barred is therefore perverse.

2. Error In Law:

The learned trial judge erred in law when he admitted legally inadmissible evidence from the Respondent and based his judgment thereon.

Particulars of Error:

(i) Section 67 of the Evidence Act, CAP 112, Laws of the Federation of Nigeria, 1990 expressly renders evidence of character irrelevant (and inadmissible) in civil proceedings.

(ii) By the wrongful admission of Exhibits DW1-DWI2, and acting thereon, learned trial judge clearly lost focus of the issue between the parties and arrived at a decision which is perverse.

3. Error In Law:

The learned trial judge erred in law by failing to review properly or at all, the evidence adduced before him (especially by the Appellant) in coming to a decision in the case, and this led to a miscarriage of justice.

Particulars of Error:

(i) The learned trial judge did not review the evidence adduced by the Appellant before deciding the case.

(ii) The approach of the learned trial judge in writing his judgment ran contrary to all decided authorities on the point.

(iii) The judgment did not demonstrate an appreciation of the testimonies of the witnesses that testified before the learned trial judge.

(iv) The approach of the learned trial judge amounts to abdication of his sacred judicial responsibility.

(v) The learned judge’s style of writing his judgment unfairly prejudiced the Appellant’s case.

4. Error In Law:

The learned trial judge erred in law when he held that there was no breach of the Appellant’s right to fair hearing by the Respondent.

Particulars of Error:

(i) There was ample evidence by the Appellant (and corroborated by the Respondent) that the panel constituted to investigate the matters for which Appellant was punished was not properly constituted.

(ii) There was ample evidence from the Respondent’s self same witness to the effect that members of the panel carried out further investigations and submitted their findings to the panel without the Appellant being afforded opportunity of cross-examining on the findings.

(iii) Exhibit 3-3(0) unequivocally show that members of the panel gave evidence against the Appellant without an opportunity of being cross-examined by the Appellant, thus acting as judge and prosecutor.

5. The judgment is against the weight of evidence:

From these grounds of appeal the Appellant formulated five issues whilst the Respondent formulated three. The Appellant shall seek leave to file further grounds of appeal upon receipt of the judgment.

The five issues formulated by the Appellant for the determination of this appeal are:

Issue i:

Whether the Appellant’s claim before the lower Court is statute barred?

Issue ii:

Whether the learned trial judge, in admitting evidence of character against the Appellant and acting, relying thereon in dismissing his claim, did not thereby arrive at a perverse decision?

Issue iii:

Whether the learned trial judge was not in error when he failed to review the Appellant’s evidence before reaching a decision in favour of the Respondent?

Issue iv:

Whether, as held by he learned trial judge, there was no breach of the Appellant’s right to fair hearing before a purported termination of his appointment?

Issue v:

Whether upon a calm and dispassionate consideration of legally admissible evidence adduced by the parties, the learned trial judge was right in dismissing the Appellant’s claim?

The Respondent, on its part, has formulated three Issues for the determination of this appeal, namely;

Issue 1:

Whether having regard to Appellant’s admission in his pleadings and under cross-examination that he knew about the termination of his appointment from his counsel when he got Respondent’s reply of 18/05/98 (Exhibit 5); the commencement of Appellant’s suit on 23/08/99 did not render same statute barred.

Issue2:

Whether the learned trial judge was right when he admitted varying acts of the Appellant’s antecedents in evidence, and acted on same to dismiss the Appellant’s claims.

Issue 3:

Whether upon the totality of pleadings and evidence adduced by the parties, the learned trial judge was right in holding that the Appellant was afforded fair hearing before dismissing Appellant’s case.

When this appeal came up for hearing on the 8th day of May, 2008, the Respondent was not in court and was not represented by counsel. There had been an expression of interest on the part of the Respondent that the Respondent’s opposition to the appeal be taken as argued as per the Respondent’s brief of argument.

Arguing issue I, the learned counsel for the Appellant submits the question as to whether a claim is affected by Section 2 of the Public Officers Protection Act is one to be determined on the peculiar facts of each case. It is his argument that, though, the Respondent claimed that the appointment of the Appellant has been terminated through a letter of 27/01/93, it is the contention of the Appellant that the said letter of 27/01/93 does not exist and that it is only a fabrication of the Respondent. The existence or non-existence of this letter, to the learned Appellant’s counsel, is very germane to the consideration of the issue of statute bar, so much so that if the letter exists in fact the action will be statute barred, but if the letter does not exist, the action is saved from being caught by the statute of limitation. To the learned counsel, if the letter does not exist, the conclusion to be reached is that the Appellant has only been on an indefinite suspension without pay at the time of instituting this action.

The learned counsel further submitted that there is enough evidence on record to show conclusively that the purported letter of termination of Appellant’s appointment does not exist. In this submission he refers us to the record of proceedings in the Court below via: page 137, line 34; page 138, line 1; page 141, lines 13 – 25; page 142, lines 8 – 11; page 192, lines 24 – 34; page 193, lines 3 – 6; and page 194, lines 20 – 25 of the record which all go to show that the issues of the Appellant in the hand of the Respondent were referred directly to the Honourable Minister. To the learned counsel, all these and Exhibit D10 are in respect of the issue of Appellant’s suspension. These at a time when the Respondent would want the court to believe that the Appellant had been recommended for dismissal by the self same Honurable Minister are self contradicting on the part of the Respondent. He cites the case of Onu Vs. Idu [2006] 6 S.C 58 and

Sections 149 and 150 of the Evidence Act.

The learned counsel also argued that the Respondent, in a further bid to conceal the truth, had claimed that it was after Alhaji Usman Usman, the representative of the Honourable Minister finished his assignment on the case of the Appellant that it was discovered that certain documents in the Appellant’s file in the custody of the Respondent were missing. This, to the learned counsel, runs contrary to the earlier averment of the Respondent in the Amended Statement of Defense dated and filed the 27th day of March, 2001. He argued that, if as claimed by DW1, the contents of the Appellant’s file were intact prior to the arrival of Alhaji Usman Usman, the Respondent having been intimated of his impending visit, would have presented the file copy of the letter by which the appointment of the Appellant had been terminated to Alhaji Usman Usman to convince him that the case of the Appellant had been closed. To buttress this submission of his, he argued that Exhibits 9 and 9A followed in July, 1996 on the instructions of the Honourable Minister. He cited Section 150 (1) & (2) of the Evidence Act to support the unassailability of Exhibits 9 & 9A.

He submitted finally on this issue that the conclusion is an irresistible one that Exhibit IIA does not exist, only an after thought and a fabrication made by the Respondent, and he urged us to resolve this issue in favour of the Appellant and to hold that Appellant’s case is not statute barred.

On issue 2, the learned Appellant’s counsel submitted that by Section 67 of Evidence Act, evidence of character is made irrelevant and therefore inadmissible in a civil proceeding. Admissibility of evidence, to the learned Appellant’s counsel, is governed by relevancy as provided by Section 6 of the Evidence Act. He submitted further that the gamut of the Respondent’s claim is based on the inadmissible evidence of character of the Appellant as can be garnered from the testimony of DW1. Despite this error in reasoning, the issue, according to counsel, was again raised in final address, with the learned trial judge failing to consider the Appellant’s objection to this in his summing up. The learned counsel cited the case of Diokpa Francis & 2 Ors. Vs. Furgueson Odogu & 7 Ors. [2006] 2 S.C. (Pt.11) 153 @ 160, 161-164,174-177; and the case of Alli vs. Alesinloye [2000] 4 S.C. {Pt.1) 111 @ 142 to support the submission that the lower Court ought rightly to have expunged evidence of Appellant’s character record. He submitted finally that it is now beyond doubt that the inadmissible evidence of Appellant’s character weighed heavily in the mind of the learned in the mind of the learned trial judge in coming to his conclusion in the case. He therefore urged us to so hold and set aside the decision of the lower Court dismissing the Appellant’s claims before it.

While arguing issue 4, as to whether the Appellant was denied his right to fair hearing by the panel set up to investigate his involvement in the contract scam or not denied same, the learned Appellant’s counsel submitted that it is a cardinal principle of our law as enshrined in Section 33 of the Constitution of the Federal Republic of Nigeria, 1999 that parties to a dispute must be accorded a fair hearing before a panel constituted in a manner as to secure its independence and impartiality. He argued that it is common ground that DW1 confirmed that the panel which sat on the case of the Appellant would not be properly constituted if any of its members is below the Appellant in rank. He went further that contrary to the denial made by DW1 in his evidence-in-chief, Exhibit DW8 tendered by the same DW1 confirmed the Appellant’s claim that some of the members of the panel were junior to him in rank. He referred specifically to one Mr. R. A. Ibrahim, listed as number 20 in Exhibit 3 who served as the Senior Public Relations Assistant on Grade Level 07 who served on the panel as a member/secretary, while Appellant is on Grade level 10.

It is also his argument on this issue that apart from the constitution of the panel which to him is improper, Exhibit 3 – 3(0) and the testimonies of the Appellant and DWl, it is evident that the Nemo Judex In Causa Sua rule of natural justice was breached by the panel in the course of its investigating the complaints against the Appellant. This, to him, is in addition to not affording the Appellant the opportunity to cross-examine those people who testified against the Appellant in the course of the panel’s proceedings. This, to the learned counsel, is in view of the failure of the panel to make available to the Appellant, for the purpose of cross -examination, those people whom members of the sub-committee raised by the main panel interviewed and on whose testimony formed part of the report of the sub-committee submitted to the main panel and since this report formed part of the panel’s findings and recommendation on the case against the Appellant. He finally urged us to resolve this issue in favour of the Appellant and to hold that the Appellant’s right to fair hearing was breached by the Respondent.

The learned counsel to Appellant, in his argument on issues iii and V which he argued together, urged us to answer issue iii in the affirmative and to answer issue v in the negative. On this he submitted that since the learned trial judge confined himself only to the testimony of DW1 and neglected or failed to consider the testimony of the Appellant, he had by that failed in his duty to review the evidence adduced by both parties before arriving at his decision in the case. He made specific reference to page 246 of the record where the learned trial judge held as being established the fact that the purported letter of termination of appointment of the Appellant was actually served on him in police custody through the divisional Police Officer. To him, if the learned trial judge had not confined himself to the testimony of DW1, but had in addition considered the testimony of the Appellant in this regard, he would have arrived at a decision which accord with the claim of the Appellant that the purported letter of termination of the Appellant’s appointment, Exhibit ’11A’ is a ruse, inexistent, null and void. This, he submitted, would have brought home more forcefully had the learned trial judge not ignored the evidence of the Appellant via; Exhibits 9, 9A and DW3, in addition to the Appellant’s evidence which is at page 142 of the record.

He argued further that since the existence of the purported letter of termination of Appellant’s appointment is in issue, the finding that it was actually served on the Appellant cannot arise until the existence of the said letter has been established with a definite finding made on it. This, he argued, the learned trial judge failed or neglected to do before arriving at the decision dismissing the Appellant’s claims. To him, if the learned trial judge had appreciated the evidence adduced in the case via; Exhibits 5, 6, 6A, 9, 9A and DW13, he would have arrived at the conclusion that Exhibit 11A is a ruse and his decision would have been different from what it is now. This is because, to him, the existence of the purported instruction from the Honourable Minister culminating in Exhibit 11A would have obviated the need for Exhibits 9, 9A and DW 13. The facts that the Appellant is still in possession of his staff identification card and the keys to his office, in addition to the purported indebtedness of the Appellant to the Respondent, argued the learned Appellant’s counsel, which the Respondent has not been able to disprove and for which the Respondent has not counter-claimed, all further go to strengthen the case of the Appellant.

He also argued that at all material time, the Appellant’s contact address had been No.33,Gaa Akanbi Road, Ilorin to which address all correspondence were addressed and at which the Appellant received same from the Respondent’s parent ministry in Abuja, yet the Respondent could only serve an all important letter of termination of appointment at a police station through a Divisional Police Officer without proof that the Appellant received same from the said D. P. O.

Equally disagreeable to the learned Appellant’s counsel is the learned trial judge’s want of appreciation of the Appellant’s evidence and the improper appraisal of same by him. Arising from this, to the learned counsel, is the learned trial judge’s finding that the Appellant knew the case against him and for which he was summoned to appear before the panel. This finding, the learned counsel argued, has no basis. He also argued that another incident of this is the non-consideration by the learned trial judge of the Appellant’s evidence in respect of the receipt by him of the sum of N2,500.00 as alleged by the Respondent.

The learned Appellant’s counsel also submitted that the learned trial judge was wrong in not accepting the contention of the Appellant that the panel that investigated him was no properly constituted as to qualifications of its members most of whom were junior to him in rank. On this submission, he commended Exhibits DW8 and DW9 tendered by DW1, respondent’s sole witness in the Court below to us. He also cited Section 131 of the Evidence Act and referred us to the case of Bunge Vs. Governor of Rivers State [2006] 6 S. C. 81.

He went further in his submission on this issue that where a trial court’s lack of appreciation of issues and evidence before him has occurred as in the instant case, an appellate court is not only entitled but justified to interfere with the trial court’s findings. He cited the following cases to support this submission:

1. Saesy Jastobery Maskinfabric A/S Vs. Olaogun enterprises Ltd. [1999] 10- 12 S. C. 46 @ 53;
2. Oba Joseph O. Oyedele Fasiku II & 3 Ors Vs. Oba Samuel O. Oyeleye Oluronke II & Ors [1999] 1 S. C. 16 @ 32;
3. Yesufu Adeosun & Anor Vs. Madam Ayisatu Jibesin & Ors [2001] 11 NWLR {Pt. 724} 290 @ 309-310; and
4. Alhaji Raufu Gbadamosi Vs. Olaitan Dairo {supra}.

He also argued that if the learned trial judge had considered the case before him in line with established principles, placing the evidence adduced by either party on both sides on an imaginary scale, his decision in the case would have been different from the one which dismissed the Appellant’s claims. On this submission, he cited the decision of the Supreme Court in the case of Odofin vs. Mogaji & ors 1 LRN 212.

To the learned counsel, the learned trial judge erred and misdirected himself when he admitted the legally inadmissible evidence of the Appellant’s character thus unfairly and prejudicially tilting the scale against the Appellant and in favour of the Respondent. To him, evidence of character of the Appellant is inadmissible in view of the provision of Section 67 of the Evidence Act and the decision in the cases of Agbi Vs. Ogbeh [2006] 5 S. C. (Pt.11) 129 and Onochie Vs. Odogwu (Supra).

He submitted finally that the learned trial judge failed to grant the claims of the Appellant because his findings are speculative and not based on legal evidence; he took into consideration matters which he ought not to have taken into consideration; and he shut his eyes to the obvious.

Opposing the appeal, the learned counsel for the Respondent in its brief of argument, formulated three issues for the determination of this appeal, viz:

1. Whether having regard to Appellant’s admission in his pleadings and under cross-examination that he knew about the termination of his appointment from his counsel when .he got Respondent’s reply of 18/05/98 [Exhibit 5]; the commencement of Appellant’s suit on 23/08/99 did not render same statute barred.
2. Whether the learned trial judge was right when he admitted varying acts of the Appellant’s antecedents in evidence, and acted on same to dismiss the Appellant’s claims.
3. Whether upon the totality of pleadings and evidence adduced by the parties, the learned trial judge was right in holding that the Appellant was afforded hearing before dismissing Appellant’s case.

Arguing issue I, the learned Respondent’s counsel submitted that one major relief claimed by the Appellant at the Court below, is a Declaration that a purported letter of termination of his appointment is a ruse, null and void. After making reference to Section 2 (a) of the Public Officers Protection Act, he submitted that contrary to Appellant’s submission on the issue of Statute of Limitation, the situation provided for in the second limb of Sub-Section (a) of Section 2 of the law does not apply to the Appellant’s case. This, he argued, is in view of the fact that the act of termination of the Appellant’s appointment is not a continuous one. He argued further that since the Appellant had admitted both in his pleadings and evidence in open court that he had known about the termination of his appointment by the Respondent through his counsel when the Respondent replied his letter on 18/05/98. To the learned Respondent’s counsel, if this is taken as the date on which the Appellant became aware of the termination of his appointment (which is not conceded), his cause of action arose on that date. The learned Respondent’s counsel contended that that is not the actual date of accrual of the Appellant’s cause of action which to the counsel actually arose on 27/01/93, which was the date his appointment was terminated by the Respondent. Counsel goes further to argue that the Appellant having failed, neglected or omitted to take action until 23/08/99, a period of more than three months limited by law for taking action, his action must indeed be statute barred. In further arguing this issue, he submitted that it is the law that limitation period begins to run from the date an action arose and not the date it is discovered. On this line of argument, he commended to us the cases of Elema Vs. N. E. P. A. [2000] 2 NWLR {Pt. 644} 337 and Aremo Vs. Adekanye [2000] 2 NWLR {Pt. 644} 259. He submitted here that no intervening event can in fact affect the limitation period required for bringing an action. He cited the cases of U. T. A. Airlines Vs. Williams (2000) 14 NWLR {Pt. 687} 280 and Humber Vs. A. G. Benue State (2000) 3 NWLR {Pt. 649} 419.

He further submitted that this action is time barred by referring to the finding made by the learned trial judge wherein he found:

“The letter of suspension was conveyed to the Plaintiff by letter of 13/10/92.

The letter of termination was served on him by 28/01/93 or came to his notice by his evidence on 18/05/98. This suit was however not commenced until 23/08/99 when the writ was issued. This certainly is more than three months.”

He commended the finding above to us. This he submitted, leaves the Appellant with bare and empty cause of action which he cannot enforce. He again cited the cases of Attorney General of the Federation Vs. Sode [1990] NWLR {Pt.128} 1; Egbe Vs. Adfarasin [1987] 1 NWLR {Pt. 47} 1; and particularly, Ibrahim Vs. Judicial service Commission [1998] 14 NWLR {Pt. 584} 1 @ 6, and urges to resolve this issue in favour of the Respondent.

On respondent’s issue 2, the learned Respondent’s counsel submitted that the learned trial judge was right when he admitted varying acts of the Appellant’s antecedents in evidence and acted on same to dismiss the Appellant’s claims. He referred to paragraph 9 of the Appellant’s Amended Statement of Claim before the Court below wherein the Appellant averred that the indefinite suspension placed on him and purported termination this appointment were all done in bad faith and actuated by malice. This averment, he submitted, necessitated the Respondent’s need to traverse the said averment of bad faith and malice vide paragraphs 10 (i), (ii), (iii), (iv), (v), (vi) and (viii) in its Amended Statement of Defense pleading the Appellant’s antecedents which culminated in the events for which he was placed on suspension and later termination of his appointment. According to counsel, the grouse of the Appellant in this appeal against the tendering and admission of evidence showing his previous misconduct is that such evidence amounts to evidence of character which the Appellant considers to be irrelevant in a civil proceeding. He submitted that the Appellant’s submission on this issue is misconceived. The acts of misconduct which has been detailed in the Statement of defense of the Respondent and established during trial by the Respondent through DW1, according to him, are not imputation as to the character of the Appellant, but are rather aggregate of instances of misconducts perpetuated by the Appellant.

He also submitted that parties are bound by their pleadings and since the Appellant did not deem it fit to rebut the evidence adduced by the Respondent in this regard during trial, the Court can legally rely on it. He cited the case of Obmiami Brick and Stone Vs. A.C.B. Ltd. [1992] 3 NWLR {Pt. 229} 260. He argued further that since the Respondent enumerated and proved by evidence the Appellant’s misconduct, it was then the duty of the Appellant to advance reasons to deny the allegations. He argued that the Appellant, instead of doing this, when confronted with the allegation during trial under cross-examination by the Respondent did not only merely deny the allegation but became evasive.

He finally urged us to hold that the evidence of misconduct pleaded and established by the Respondent through DW1’s evidence-in-chief is admissible and that the lower Court was right in acting on it to dismiss the Appellant’s claims – same not having been rebutted, denied, contradicted or dislodged by the Appellant.

The learned counsel while arguing issue 3 of the Respondent’s issues for determination, submitted that the Appellant’s pleadings in paragraph 9 only obliquely complains about the alleged non-observance of rule of fair hearing in his case, the main issue canvassed therein, according to counsel, being accusation of malice and bad faith. He argued that this issue of breach of the Appellant’s right to fair hearing as alleged by him, that the essence of fair hearing is that a person is heard before being punished on an allegation.

He submitted that the Respondent has established that the Appellant was given adequate and ample opportunity to clear himself from the allegation of being involved in the rumored syndicate of offering fictitious contracts to contractors. He submitted further that the Appellant, at the hearing of the committee empanelled to investigate the allegations against him, when confronted with the facts, admitted receiving the sum of N2,5000.00 from a contractor and went further to give a promissory note to refund the said sum of N2,5000. 00. This, according to the learned counsel, is admission of culpability by the Appellant. He cited the case of Arinze Vs. First Bank Plc. [2000] 1 NWLR {Pt. 639} 78 @ 103 -104, H. A.

He submitted further on this issue that the Supreme Court has settled the law on what an employer need to do to satisfy the requirement of fair hearing before dismissing an employee summarily, in its decision in the case of Yusuf Vs. Union Bank of Nigeria Ltd. [1996] 6 NWLR {Pt. 457} 632, wherein the Apex Court held that to satisfy the requirement a person likely to be affected by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make representation in his own defense. It is sufficient if the complaint against him as formulated conveys to him the nature of the accusation against him.

He summed up on the issue by submitting that the learned trial judge was right when he held that the Appellant was given fair hearing because he found as a fact that:

1. He knew the case in respect of which he was summoned to appear before the panel; and
2. He appeared before the panel and admitted receiving the sum of N2,500.00 from a contractor giving a promissory note to refund same per Exhibit 3 (F) – 3 (L).

Arguing the second limb of this issue, counsel submitted that the case of the Appellant is bereft of merit. He argued that the attempt made by the learned counsel for the Appellant to impeach the judgment of the Court below for want of proper evaluation and appreciation of Appellant’s evidence betrayed the learned counsel’s misconception of the law. He submitted that it is settled law that cases in the High Courts and superior courts are fought on pleadings and that parties are bound by their pleadings. He cited Odumeru Vs. Adenuga [2000] 12 NWLR {Pt.682} 467 @ 473-474.

He also submitted that it is trite law that he who asserts an allegation must prove the allegation by credible evidence. He submitted further that the law is that a plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case. He cites Odumeru Vs. Adenuga (supra) and the case of Nwokora Vs. Nwosu [1994] 4 NWLR {Pt. 337} 172 @ 178. He argued that since it is the claim of the Appellant that the letter of termination of his appointment does not exist, it is his duty to adduce credible evidence to prove that the letter is non-existent contrary to the averment of the Respondent and the testimony of DW1 which say that that the said letter exists and that it was actually received by the Divisional Police Officer, Mr. Awelewa, on behalf of the Appellant when the latter refused to collect same while in police custody at the ‘A’ Division of the Nigeria Police, Ilorin. He urged us to compare and evaluate the reply of the Appellant under cross-examination when asked as to his whereabouts between the 20th of January, 1993 and 9th of February, 1993, thus:

“My employer told lie against me and I was with the police but fortunately I was released”; with the evidence of DW1 on the issue of the whereabouts of the Appellant at the material time, thus:

“On 20/01/93 whilst the plaintiff was on suspension we received a letter from the police informing us of the arrest of the plaintiff for matter of theft and that he was in detention with them.”

He submitted finally that it is trite law that facts admitted need no further proof, that the admission by the plaintiff as to his whereabouts at the material time is conclusive of the fact that the said letter of termination of Appellant’s appointment exists. He therefore urged us to resolve this issue against the Appellant, dismiss the appeal and affirm the judgment of the Court below in the case.

The above represents the case of the parties in this appeal. Having given careful and due consideration to the submission of counsel on both sides to this appeal via their respective briefs of argument in this matter, I will now determine the issues in controversy between the parties. The Appellant has formulated five issues for determination distilled from the five grounds of appeal identified in his notice of appeal. The Respondent, on its part, has raised three issues for determination in this appeal, also distilled from the five grounds of appeal identified by the Appellant.

In view of my consideration and analysis of the issues raised by each of the parties, I am of the firm opinion that it will be adequate to merge the issues raised by both sides to the appeal so as to arrive at a point where we will have just four issues for determination after a marriage of the Appellant’s issues with the Respondent’s issues. This in view of the fact that upon careful consideration of the issues it is discovered that the Appellant’ s issues 3 and 5 are similar, Appellant’s issue I and Respondent’s issue 1 are the same, Appellant’s issue 2 and the Respondent’s issue 2 are the same and Appellant’s issue 4 is the same as Respondent’s issue 3. Issues for determination in this appeal shall now be reformulated thus:

1. Whether the appellant’ claim before the lower is statute barred?
2. Whether the learned trial judge, in admitting evidence of character against the Appellant and acting relying (sic) thereon in dismissing his claim, did not thereby arrive at a perverse decision?
3. Whether, as held by the learned trial judge, there was no breach of the Appellant’s right to fair hearing before the purported termination of his appointment?
4. Whether a calm and dispassionate consideration of legally admissible evidence adduced by the parties, the learned trial judge was right in dismissing the Appellant’s claim?

I shall now start to resolve the issues, beginning with the first issue.

This issue asks the question whether the claim of the Appellant herein before the lower Court is statute barred. Counsel to the Appellant has in this appeal canvassed the position that the Appellant’s claim is not statute barred. He hinged this position on the non-existence of the purported letter of termination of the Appellant’s appointment. To him, if the said letter does not exist, Appellant’s claim will not be caught by Statute of Limitation and therefore saved. But if it does exist, which he does not concede, the Appellant’s claim will be statute barred and no longer enforceable. In direct opposition to the submission of the learned Appellant’s counsel, the learned Respondent’s counsel argued that the said letter indeed exits and that same was served on the Appellant while in police custody through the Divisional Police Officer.

To determine this issue and indeed this appeal, one must not only inquire into the existence or non-existence of the said letter of termination of Appellant’s appointment, but go further to inquire into what actually in law brings the Appellant’s cause of action into existence and when such can be said to have arisen, The answer to this question, in my humble opinion, is decisive of this issue. Is the letter of termination of appointment qua letter of termination of appointment what brings the Appellant’s cause of action into existence or the actual act of termination of his appointment which he challenges as being wrongful? Is it the issuance of the said letter that the Appellant now challenged as being wrongful or what he considers as the wrongful termination of his appointment? If the grouse of the Appellant is with the said letter, then its existence or non-existence determines this appeal on this issue. Again, if in law it is the existence of the said letter that gives the Appellant his right or cause of action, then its existence or nonexistence will decide this appeal on this issue.

My answer to the questions above is that it is not the existence of the said letter of termination of appointment that gives the Appellant his cause or right of action in this case. To my mind the fact of the termination of the Appellant’s appointment would still have been actionable as being wrongful even when such has been brought to his notice by word of mouth without the ceremony of issuing a letter of termination of his appointment. This is notwithstanding the damning evidence on record that the Appellant refused to collect the said letter of termination of his appointment when same was to be served on him at the police station. I must hasten to disagree with the learned trial judge in his finding when he held that he was convinced that the said letter was served on the Appellant at the police station. There is no piece of credible evidence to ground this finding of the learned trial judge.

The service of the letter on the Divisional Police Officer evidenced by his endorsement of the Respondent’s dispatch book cannot ground this finding that the letter was in fact served on the Appellant through him. The letter of termination of Appellant’s appointment ought not to have been served through a Divisional police Officer. It ought to have been served personally, directly on the Appellant.

Apart from the refusal of the Appellant to receive the letter, there is not enough evidence on record to ground the finding that the Appellant knew that his appointment had been terminated, which fact, was not acceptable to him. It is of note that the Appellant, in some, of, his correspondences to the Honourable Minister, implored the Minister to believe that his appointment had not been terminated as the Director would want the Minister to believe. His letter of 23/5/95, to the Minister refers. When all these are accepted as being evidence that the. Appellant at least knew of the termination’ of his appointment from as far back as 1995, and still failed or neglected to sue, but instead went into negotiations with his employers, his action must not and cannot be statute barred. Negotiations by a dismissed employee with his employer on a case of summary dismissal have been held not to operate to stop the limitation period from running. On this see the case of Nigerian Customs Service Vs. Bazuaye (2001) 7 NWLR (Pt.712) 357.

However, when an employee rightly believes as in this case, that his , employment is still on, although he is on suspension, gives cause for the employee to at place. It is an established rule of our law that limitation period for the purpose of bringing an action against a public officer begins to run from the date the cause of action arose and not when it is discovered. See the case of Aremo Vs. Adekanye [2000] 2 NWLR [Pt.644] 259.

Limitation laws have been justified on the need to prevent stale actions-where recollection of facts may have become blurred due to lapse of time and necessary document and facts may have been lost to time as in the instant case where the unduly delay of the Appellant in instituting the action has occasioned the loss of some vital documents in his file kept by the Appellant.

The Appellant’s case will still have been caught by the limitation law and same will be statute barred even if it is accepted that he only came to notice of the termination of his appointment through his counsel via Respondent’s reply of 18/10/98. This is because the period between the time when he admitted in his pleadings as when he came to knowledge of the termination of his appointment by the Respondent on 18/10/98 and when he instituted his action in the lower Court is a period of about fifteen months well over the three months period limit prescribed for instituting the action. Even if it is assumed that the Appellant did not know of the fact of the termination of his appointment, which I do not concede, this action instituted almost five years after the Appellant’ cause of action arose is not one that is maintainable in view of the fact that ignorance of a plaintiff about the fact that those facts whose existence give him his cause of action were in existence at the material time. See the case of Mkpedem Vs. Udo (2000) 9 NWLR (Pt. 673) 631.

In view of the foregoing, issue 1 of the Appellant’ issues for determination is hereby answered in the negative, same is hereby resolved in favour of the Appellant as his claim against the Respondent at the Court below is not statute barred. Accordingly, I hold that the Appellant’s claim before the lower Court is not statute barred and therefore still enforceable by him.

The proceed to the consideration of issue 2, whether, the learned trial court, in admitting evidence of character against the Appellant and acting having (sic) thereon in dismissing his claim, did not thereby arrive at a diverse decision? While counsel for the Appellant-argued-that the-instances of the misconduct of the Appellant itemized by the Respondent and admitted by the court below amount to evidence of character against the Appellant therefore inadmissible in evidence as being rendered irrelevant by section 67 of the Evidence Act. The learned counsel to Respondent argued the other hand that these instances of the misconduct of the Appellant are antecedents of the Appellant which were discovered by the Respondent in course of watching the Appellant while in his probationer period. After a thorough consideration of the submission of counsel on both sides, I prefer to align my position with that of the learned counsel for the Appellant that what the Appellant considers as evidence of character against him is nothing more than instances of minor misconduct-on the job.

It is the submission of the learned counsel for the Respondent that the Respondent tendered in evidence the Appellant’s antecedents of misconduct in order for the Respondent not to be caught by the rule which says that a defendant who fails to specifically deny an allegation in a plaintiffs Statement of Claim which has substance will be deemed to have admitted same.

It is settled law that when a party to a civil proceeding fails or neglects to traverse an averment in the pleadings of the opposing party, he is deemed to have admitted the facts averred in the leadings. See the cases of Adesanoye Vs. Adewole [2000] 9 NWLR {Pt. 671} 127, Daramola Vs. A. G. Ondo State [2000] 7 NWLR {Pt.665) 440, Mojekwu Vs: Ejikeme 12000] 5 NWLR (Pt. 657) 402 and Akintola vs. Balogun [2000] 1 NWLR (Pt.642) 532. I am in agreement with .the submission of the learned Appellant’s counsel that the Respondent pleaded and led evidence in support of the Appellant’s previous misconduct in reply to the allegation of bad faith and malice made against the Respondent by the Appellant in his Statement of Claim.

In view of the foregoing, I am of the firm opinion that the learned trial judge was wrong when he accepted and relied on the evidence of previous misconduct of the Appellant ill evidence in dismissing his claims. Issue 2 is hereby resolved in favour of the Appellant.

I shall now consider issue 3, which asks the question whether the “Appellant’s right to fair hearing was not breached by the panel set up ‘by the Respondent to investigate the allegation against the Appellant. The said issue 3 is hereby reproduced hereunder:

Issue 3: Whether, as held by the learned, trial judge, there was no breach of the Appellant’s right to fair hearing before the purported termination of his appointment?

This issue complains about the breach by the Respondent of the right to fail hearing of the Appellant. Right to fair hearing is so fundamental to adjudication that if it is proved to have been breached in a proceeding in respect of a party, the whole proceeding will be rendered a nullity. See the case of F.M.B.N. Ltd. Vs. Adu [2000] 11 NWLR {Pt. 678} 309.

It has been established by our courts in a line of cases that for a proceeding to qualify as one in which, there has been fair hearing it must meet certain conditions, viz;

1. The panel seized of the matter must be constituted in such manner as to secure its independence and impartiality; and
2. The party against whom an allegation has been made must be afforded ample opportunity to make his defense, must be given the opportunity to be heard in his defense.

On the basis of the aforesaid, can we say that the Appellant was not afforded ample opportunity to make his defense to the allegation or that the panel was properly constituted? Having given due consideration to the judgment of the learned trial judge, I am inclined to disagree with him in his finding that the Appellant was afforded ample opportunity to’ make his defense before the panel set up to investigate the allegation of corruption made by the Respondent against the Appellant.

It is trite law that an employer does not need to wait for an employee against whom there is an allegation of misconduct bordering on crime to be prosecuted and convicted by a court before he can exercise his power to dismiss such an employee summarily. It is enough if he is given such notice as would make the nature of the allegation (s) against him clear to him so as to enable him put in a defense. See the decision of the Supreme Court in the case of Yusuf Vs. Union Bunk (Nig.) Ltd. (1996] 6 NWLR (Pt.457} 632 wherein the Apex Court held:

“….to satisfy the rule of natural justice and fair hearing, a person likely to be directly affected by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make a representation in his own defense. The complaint against him must not necessarily be in the form of a .formal charge. It is sufficient if the complaint as formulated complaint as formulated conveys to him the nature of the accusation against him. ”

Also in the case of Bamgboye Vs. University, of Ilorin (1999) 10 NWLR {Pt. 622} 290 the Supreme Court held:

“For an employer to successfully justify the termination of the employment of his employee of his employee which is with statutory flavour, such employer must prove to the satisfaction of the trial court that the allegation made against the employee was disclosed to him, whereby he was given a fair hearing, and that the disciplinary panel believed that the employee committed the offence after hearing him.”

Flowing from the foregoing, I am convinced that the Appellant was not afforded a fair hearing by the panel set up by the, Respondent to investigate the allegation made against him before he was summarily dismissed. In Chief Mene Kenon & Ors Vs. Chief Albert Tekem & Ors. [2001] 7 SCNJ 620, the Apex Court held inter alia:

“That fair hearing depends on the circumstances of each case, Lack of fair hearing is a constitutional issue that goes to the root of any adjucation no matter how well conducted, it would go to no issue if it offends against the provisions of Section 36 (I) of theConstitution of the Federal Republic of Nigeria, 1999, whereunder it is provided thus:

Section 36 (1):

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, 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 .

See: Zakari Vs. I G. P. [2000] 8 NWLR (Pt.670) 666 and Agwuegbo Vs. Kagoma [2000] 14 NWLR (pt.687) 252. The setting up by the Respondent of the Committee to try the Appellant and the allegations by the Appellant that the Committee was not properly constituted and that same partial in its handling of the Appellant’s case, in my humble view renders the Committee’s findings and its report based on it which was submitted to the Respondent unacceptable. Since it is was the same report that grounded the indefinite suspension of the Appellant from work by the Respondent from work and the ultimate dismissal of the Appellant, the suspension and dismissal which followed it becomes wrongful, null and void for not being in accord with the dictates of natural justice and fair play. See: Adebayo ,Ogundoyin & Ors. Vs. David Adeyemi [2001] 7 SC NJ 187 @ 197, per Onu, JSC (Rtd.) emphasized on the twin pillars of justice and the very need that each party to a dispute before a court of law or any other tribunal must be given fair hearing to allow each party to state his own case in court or before a tribunal, when he said:

“The hearing must be fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua. See Mohammed & Anor Vs. Olwunmi [1968] 2 NWLR 458 @ 485 B – C. In Urhata Vs. Menta Ltd. [1968] NMLR 55 @ 58, it was held that the principle of audi alteram partem is a fundamental principle of justice which legislation alone can derogate. Any judgment or ruling based on breach of the constitutional provision of fair hearing as provided in Section 33 (1) of the Constitution of the Federal Republic of-Nigeria, 1979 will not be allowed to stand on appeal. It is fatal to the judgment appealed against on that ground. See Ntukedim Vs., Oko [1986] 5 NWLR {Pt. 45} 909. Thus, in Sheldon Vs. Bromfield [1964] 2 Q. B. 573 @ 578, it was held that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned in a case.

It is little wonder that this court has firmly held that when a represented party is not heard or given the opportunity of being heard in a case, the principles of natural justice are abandoned vide Otapo Vs. Sunmonu [1987] 2 NWLR 605 and Olatunbusun Vs. NISER [1988] 3 NWLR {Pt. 80} 25. Put in another way, it was the decision of this court in Paul Unongo Vs. Aper Aku & 3 Ors.[19873] 115 -129 @ 151-c152that ‘.neither a court nor the National Assembly should curtail the power of the court to ensure a fair hearing to a party within a reasonable time as enshrined . in Section 236 and 33 (1) of the 1979 Constitution (in the latter now Section 36(1) of the 1999 Constitution). This right of fair hearing, it has been held in Ramoni Ariori & Ors. Vs. Muraino Elemo & Ors. [1983] 1 S. C. 13 @ 15 “is that “…the principle of fair hearing not only demands but also dictates that the parties to a case must be heard on the case formulated by them”. See: Nwokoro Vs. Onuma [1990] 3 NWLR {Pt. 136} 22 @ 33 per Karibi-Whyte, JSC. For as Nnameka-Agu JSC plainly put it in Kotoye vs. C.B.N. [1989] 1 NWLR {Pt. 98} 419 @448:

“For the rule of fair hearing is not a technical doctrine. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that the party entitled to be heard before a decision was reached but was not the given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.”

Conclusively on this issue, I hold that right of fair had been breached by the Respondent in respect of the Appellant, in view of the manner that the panel which the Respondent set up to investigate the allegations against the Appellant was not such as to secure its independence and impartiality and the fact that members of the panel conducted the proceedings in a way that they could not have been regarded as unbiased umpires. Members of the panel did not only descend into the arena but acted both as accusers and judges in the case, thereby breaching the fundamental principle of nemo judex in causa sua.

Consequent upon the above, I resolve Issue 3 in favour of the Appellant against the respondent. Finally, in view of the foregoing, I am obliged not to consider issue 4 as it would serve no useful purpose since the foundation ,of any trial or adjudication has been violated by lack of fair hearing. In consequence of the foregoing, I hold that this appeal has merit and same is accordingly allowed. The judgment of the lower Court delivered on the 31st day of May, 2005 dismissing the claims of the Appellant as being statute barred is hereby set aside. The Respondent cannot be forced to retain in its services an employee it does not want any more. See: Taduggoronno Vs. Gotom [2002] 4 NWLR (Pt.757) 453. This appeal has been allowed on the ground of lack of fair hearing as regards the composition of the committee set up by the Respondent to investigate the allegation against the Appellant and the conduct of its proceedings.

It is usual that specific performance is not ordered in the case of master and servant relationship. See: Balogun Vs. University of Abuja (2002) 13 NWLR (pt.783) 42. The Appellant can only be given the usual statutory one month’s salary in lieu of notice since the so called letter through which the Respondent purportedly terminated his appointment has been found not to exist as same cannot be said to have come to the notice of the Appellant as to constitute the required notice of termination of appointment. To further ameliorate the hardship which resulted from the wrongful dismissal the Respondent subjected the Appellant to since January of 1993 to date, the Respondent shall pay to the Appellant the sum of N300,000.00 (Three Hundred Thousand Naira) only as nominal damages. This sum will be inclusive of the costs the Appellant has incurred so far to get redress against the unjust treatment he has received in the hands of the Respondent. The Appellant having not enjoyed fair hearing in respect of the allegations made against him by his employers as herein determined, should nevertheless be warned that it is not only necessary but also desirable for him to live above board always and avoid any acts of misconducts.

No further order as to costs is made.

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Other Citations: (2008)LCN/2903(CA)