University of Calabar Teaching Hospital & Anor. V. Juliet Koko Bassey (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the judgment of Ajakaiye, J., sitting in the Federal High Court, Calabar, delivered in Suit No. FHC/CA/CS/102/2004 on 27/9/07.
The brief facts of the instant case on appeal are that the respondent, who was the plaintiff at the court below, joined the employment of the 1st appellant on the 26/9/97. After her probationary period of 2 years she was confirmed on the 10/1/2000 and later promoted to the rank of Accountant 1 on the 1/1/2001. She thus became a pensionable staff in the Federal Civil Service of Nigeria thereafter.
On the 1/7/2002, she was suspended from work without pay on the ground of alleged case of financial impropriety involving the sum of N2 million. On 10/7/02, a panel of enquiry was appointed after having already punished her with a suspension without pay. Following a complaint lodged by the appellants to the Police, the respondent was arrested on 28/8/02 and later released. She subsequently resigned her appointment in March 2004. Apparently, the appellants did not accept the resignation of the respondent and on the 3/5/04, she was given a letter of dismissal for alleged act of financial impropriety involving the sum of N11 million. The respondent, unhappy with the turn of events instituted proceedings against the appellants in the court below claiming in paragraph 23 of her statement of claim as follows:
“(a) A DECLARATION that the purported dismissal of the Plaintiff as Accountant 1 in the 1st defendant’s employ by the 2nd defendant vide letter with reference No. UCTH/PF/1710/40 of 3rd May, 2004, ultra vires, illegal, unconstitutional, null and void and contrary to the plaintiff (sic) conditions of service and rules of natural justice;
(b) A DECLARATION that the plaintiff is still in the employ of the 1st defendant;
(c) An Order directing the defendants to reinstate the plaintiff to her post of Accountant without prejudice to her entitlements, salaries, allowances, claims, benefits and promotions which accrued to her.”
To prove her case, the respondent testified in person but called no other witness. The appellants called two witnesses after which written address were filed and adopted by counsel for the parties. After a review of the evidence of witnesses, documentary exhibits and of course, the written addresses of counsel for the parties, the learned trial Judge entered judgment in favour of the respondent and declared at page 20 of the record as follows:
“(a) that the purported dismissal of the plaintiff as Accountant 1, in the 1st defendant’s employ by the 2nd defendant vide letter with reference No. UCTH/PF/1710/40 of 3rd May, 2004, is ultra vires, illegal, unconstitutional, null and void and contrary to the plaintiff (sic) conditions of service and rules of natural justice;
(b) That the plaintiff is still in the employ of the 1st defendant;
(c) I THEREFORE Order that the defendants shall reinstate the plaintiff to her post of Account Grade 1 and that she shall be paid all her salaries and allowances as from the date of her purported dismissal up to date.”
Being dissatisfied with the judgment, the appellants appealed to this court on five grounds from which the appellants distilled 3 issues for determination in their brief of argument dated 19/6/08 and filed the same day. The three issues for determination are:
“(1) Whether the respondent’s action was competent and maintainable as held by the learned trial Judge even though the respondent had earlier resigned her appointment and the suit was filed outside the statutory period allowed for actions against public officer?
(2) Whether on the face of the gamut of evidence before the lower court, the respondent was not given fair hearing and her dismissal not in conformity with the relevant statutes governing her employment.
(3) Whether the learned trial Judge was correct that the respondent ought to have been tried and convicted before she could be validly dismissed.”
On being served with the appellants’ brief, the respondent filed her brief dated 17/7/08 and filed the same day, wherein two issues for determination were formulated as follows:
“1. Whether the court below was right holding that the Public Officers (Protection) Act was inapplicable to an action founded on contract and that the respondent was still in the employment of the appellants at the time of her dismissal from the said employment.
2. Whether there was non-compliance with the provisions of sections 1(1), 5(5), 9(1) (a), (b), (3)(a) and (4) of the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act, CAP 463 and section 36 of the 1999 Constitution of the Federal Republic of Nigeria.”
The parties exchanged their respective briefs and same were adopted and relied upon before this court.
On Issue 1, the appellants contended that the respondent’s suit was incompetent and legally unmaintainable by reason of the fact that –
“(1) Prior to her dismissal, she had voluntarily resigned her appointment, and ipso facto no longer had protectable right over the appointment; and
(2) The suit was instituted outside the statutory period of three months within which the action ought to have been commenced against the appellants, being public officials.”
They referred to the evidence of the respondent at page 82 of the record where she testified under cross-examination that before she was dismissed by the appellants she had resigned her appointment. They also referred to the evidence of DW1 at pages 138 – 139, who corroborated the evidence of the respondent and submitted that an employee who voluntarily resigns his appointment is no longer competent to seek the protection of the said appointment either by a restraining order of injunction or an order for reinstatement. They relied in Yesufu vs. Governor, Edo State & Ors. (2001) MJSC 128, where the Supreme Court, per Kalgo, JSC, held that:
“Where a person has resigned from a position, such a person has no interest to protect in that position. He has no standing or right of action to sue on account of that position…”
On the issue of the respondent’s resignation, the appellants relied on the holding of Ogundare, JSC, at page 139 of the same report where he said thus:
“A letter of resignation from a post does not require acceptance such letter operates effectively as a resignation of appointment…”
See also Benson vs. Onitiri (1960) 5 FSC 67. The appellants contended that the respondent having resigned her appointment she can no longer seek its protection as she lacks the locus standi to do so and the court was denied of the jurisdictional competence it ordinarily would have had to entertain the matter. It was also contended that since the resignation of the respondent was effective, her purported dismissal was superflous and an exercise in futility because the appellants cannot revive a relationship which by law has been conclusively and irretrievably determined.
It was also contended for the appellants that the respondent was dismissed on 3/5/04 but she took out her writ of summons on 1/11/04, about 6 months later. By virtue of section 2(2) (a) of the Public Officers Protection Act, Cap 379 LFN actions against public officers to be competent must be instituted within 3 months when the cause of action arose. Therefore, the respondent’s action having been instituted outside the statutory period is incompetent and that robs the court of the jurisdiction to entertain the respondent’s suit. The appellants pointed out that section 2(2) (a) of the Public Officers Protection Act covers both public officers and public institutions. In support of that contention, the appellants relied on Adigun vs. Ayinde (1993) 11 SCNJ 1 at 15; Adebanjo vs. Ogun State Sports Council (2005) All FWLR (Pt. 279) 1319; Dandu & Ors. vs. University of Agric., Makurdi & 4 Ors. (2003) FWLR (Pt. 176) 687; Ibrahim vs. JSC, Kaduna State & Anor. (1998) 14 NWLR (Pt. 584) 1; Offobuche vs. Ogoja Local Govt. & Anor. (2001) 16 NWLR (Pt. 89) 397 at 458 and F. G. N. vs. Zebra Energy Ltd. (2003) MJSC 1.
It was submitted that section 2(a) of the Public Officers Protection Act applies to cases of contract of employment. The appellants sought to distinguish the cases of F. G. N. vs. Zebra Energy Ltd. (supra) and Amao vs. C. S. C. & Ors. (1992) 7 NWLR, which the trial Judge relied on to hold that the Public Officers Protection Act does not apply to actions sounding in contract and as such, the case of the respondent dealing with contract of employment does not come within the purview of the provisions of the Act.
Relying on Fajimola vs. University of Ilorin (2007) All FWLR (Pt. 350) 1361 and Bassey vs. Minister of Defence & Ors. (2006) FWLR (Pt. 343) 1042, it was submitted for the appellants that the provisions of the said Act applies to cases involving contract of employment. Therefore, the respondent’s action before the lower court was incompetent and unmaintainable.
On Issue No.2, the appellants contended that they fully complied with the Teaching Hospitals (Reconstruction of Boards, Etc.) Act, Cap 2115 LFN 2004 and Public Service Rule, 2000, which govern the respondent’s appointment, her dismissal and she was given fair hearing. Relying on Yissa vs. Benue State Judicial Service Commission (2005) All FWLR (Pt. 277) 856, it was contended for the appellants that what is required to satisfy the right of fair hearing is for the person to be affected by the disciplinary proceeding to be given adequate notice of the allegation against him to enable him make a representation in his defence. It was pointed out that the respondent was given queries in Exhibits G1 – G14 and a Panel of Inquiry constituted to investigate the allegation against her which she participated in. Therefore, the respondent was given fair hearing.
On Issue No.3, it was contended for the appellants that in a statutory employment, as in private employment, the employee can dismiss in all cases of gross misconduct. The appellants argued that there is an undoubted and evident modification of the law from the old cases of Sofekun vs. Akinyemi (1980) 5 – 7 SC; Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and concluded that it is now manifestly clear that an employer can dismiss an employee for a gross misconduct without first subjecting him to a criminal trial before the court of law. They relied on Arinse vs. FBN Plc. (2004) 18 NSCQR 429 at 437; Osagie vs. New Nigeria Bank Plc. (2005) All FWLR (Pt. 257) 1485; Yissa vs. Benue State Judicial Service Commission (supra); Bamgboye vs. University of Ilorin (2001) FWLR (Pt. 32) 12 at 70 – 71; Uzoho vs. Task Force on Hospital Management (2004) 5 NWLR (Pt. 867) 622; Yusuf vs. UBN (1996) 6 NWLR (Pt 457) 632 and Olaruwaju vs. Afribank (Nig.) Plc. (2001) FWLR (Pt. 72) 517. They urged the court to allow the appeal.
The respondent under Issue No. 1 contended that her contract of employment could be litigated upon three months after any alleged breach of the contract by the appellants. In support of this contention the respondent referred to Amao vs. Civil Service Commission (1992) 7 NWLR (Pt. 252) 214 at 218, where this court held that immunity from suits granted by section 2(2)(a) of the Public Protection Law does not extend to actions founded on contract and the trial court was in error in applying the provision of the Act to the suit which is challenging a breach of a contract of employment and the dismissal of the respondent based on it. See also CBN VS. Adedeji (2005) All FWLR (Pt. 244) 912 – 918; Ibrahim VS. JSC Kaduna State (supra) at page 20.
Regarding the status of the respondent at the time of her dismissal from the service of the 1st appellant, it was contended that:
“(1) She was suspended from work without pay on 1/7/02, (see page 88 of the record).
(2) She resigned her appointment in March 2004, (see page 82 of the record).
(3) The appellants gave her a letter of dismissal on 3/5/04, (see Exhibit “E”, page 80 of the record).
(4) DW1 in his evidence on 23/5/06 at page 89 of the record testified that the respondent’s resignation was not accepted by the appellants because to do so would have preempted the dismissal order of the appellants.”
The respondent then concluded that if her resignation had taken effect, there would not have remained any service to be terminated. It was the contention of the respondent that the provisions of section 9(3) of the University Teaching Hospitals (Reconstruction of Boards, Etc.) Act, provides that any member of staff may be suspended from his duties or his appointment may be terminated or he may be dismissed by the Board, therefore, she was still a member of staff at the time of her dismissal.
On Issue No.2, the respondent pointed out that she was suspended from duty with effect from 1/7/02 without pay on the ground of alleged case of financial impropriety involving the sum of N2 million levelled against her in Exhibit “D” at page 5 of the record.
After her suspension without pay and panel was set up to investigate the allegation. See Exhibit “J” at page 89 of the record. The panel interviewed the respondent on the allegation on 2/8/02 for the first time. However, the letter of dismissal dated 3/5/04 served on her was for another alleged act of financial impropriety involving N11 million levelled against her for which she was never confronted. She concluded that the appellants by their acts violated the provisions of section 9(1) & (3) of the University Teaching Hospitals (Reconstruction of Boards, Etc.) Act and section 36(1), (4) and (6) of the 1999 Constitution.
Furthermore, it was contended for the appellants that the allegations of stealing N2 million or N11 million is a very serious offence which carries a heavy penalty of 7 years imprisonment under sections 383 and 390 of the Criminal Code which should not be equated to gross misconduct, insubordination or misconduct. Reliance was placed on Jibril vs. Military Administrator, Kwara State (2007) 3 NWLR (Pt. 1021) 357 and Garba & Ors. vs. University of Maiduguri (supra) 550 at 576.
It was concluded for the respondent that her appointment is with statutory flavour since the procedure for her employment and discipline were governed by the University Teaching Hospitals (Reconstruction of Boards, Etc.) Act. She relied on NIIA vs. Ayanfalu (2007) 2 NWLR (Pt. 1018) 246 at 250; Dangtoe vs. JSC Plateau State (2001) 9 NWLR (Pt. 717) 132 – 139 and Amasike vs. Registrar General, CAC (2006) 3 NWLR (Pt. 968) 462 at 470.
Before going further, let me at this juncture appreciate the efforts of counsel in this appeal. They have brilliantly and intelligently presented their arguments in their respective briefs. No doubt the briefs were rendered with clarity of thought and articulation. This is the way it should be. Having said that much let me now go into the substance and merits of the appeal.
I have carefully examined the issues formulated or identified by the parties in the instant appeal and reflected on them. In my considered view, those formulated by the appellants appear more comprehensive, all encompassing and more derivable from the grounds of appeal filed. I, therefore, adopt same for the determination of this instant appeal.
Issue No.1 in this appeal involves two distinct sub-issues, namely:
“(1) whether the respondent was competent to sue having earlier resigned her appointment with the appellants.
(2) Whether the suit in itself is competent having been instituted outside the time limited by law.”
In respect of sub-issue (1), the appellants contended strenuously that the respondent lacked the competence to sue having earlier resigned her appointment with the appellants before her eventual dismissal.
Now, where an employee is placed on suspension, he or she cannot resign and if he or she applies for resignation, it will not be allowed. In this case, the appellants were correct to refuse the respondent from resigning because it was a pre-emptive action. The word “Suspension” was considered in Esiaga vs. University of Calabar (supra) at page 236 – 237, where Pats Achalonu, JSC, (of blessed memory) said:
“The word suspension cannot be construed to mean “terminate”, “extinguish”, or “bring to an end”. It means, “To cause to abate for a while or halt midway but not to bring to an end”. It always connotes a state of affairs that should wait until a certain event takes place…”
It is in evidence that the respondent was suspended and an Investigating Panel was constituted or set up to investigate the allegation against the respondent. There is clear evidence that the respondent was invited and interviewed by the Panel. In the circumstances, can the respondent resign her appointment before the result of the Panel is known? The answer must be in the negative and I say a resounding NO she cannot.
The appellant is, by virtue of her appointment under the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act, a public servant subject to the provisions of the Federal Government Public Service Rules, 2006. Section 4, Rule 030406 deals with “Suspension”. It provides as follows:
“Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in public interest that he/she should forthwith be prohibited from carrying out his/her duties, pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.”From the above, it is clear that the suspension of the respondent must continue until the investigation is concluded and the matter finally disposed of. See also the book “Public Servant and the Law” by Akin Emiola; page 89, paragraph 2. In Longe vs. FBN Plc. (2006) 3 NWLR (Pt. 967) 228, Salami, JCA, had this to say:
“The word “suspension” means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period, or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline”
The suspension of an employee is not an unusual procedure taken in order to facilitate investigation of an alleged impropriety. At that stage the interest of the business of the employer becomes paramount. Very often irregularities as crime, e.g., fraud, embezzlement or stealing do occur in government department, like the 1st appellant, an employee may be suspended until he is cleared of the allegation. See Longe vs. FBN Plc. (supra); University of Calabar vs. Esiaga (supra) and Lewis vs. Heffer & Sons (1978) 3 All E.R. 254 at 364, per Lord Denning.
Where an employee is suspended all his rights, privileges and powers attached to the employment cease until he or she is cleared of the allegation.
I have also considered the finding of Ogundare, JSC, (of blessed memory), in have also considered the finding of Ogundare, JSC, (of blessed memory), in Yesufu vs. Gov. of Edo State & Ors. (Supra) at page 130 of the report, that:
“A letter of resignation from a post does not require acceptance. Such letter operates effectively as a resignation of appointment.”
His Lordship referred to the case of Benson vs. Onitiri (supra). It is my humble and respectful view, that the principle is not immutable as it will depend on the facts and circumstances of each and every case. In the same case of Benson vs. Onitiri (1960) 1 NSCC 52, Ademola, and CJF (as he then was) at page 60 held thus:
“That there is a common law right to resign unless there is reason to show that the holder of the office cannot…”
At page 61 he went on to say that:
“……… That correct approach, in my view, is that there is a right to resign an office unless there is a reason or reasons to show that a man cannot resign.”
Suspension from service is a reason to show that the respondent cannot resign. The appellants having refused the respondent’s letter of resignation or resignation, so to speak, on the ground that it will pre-empt the Panel’s report, she was still and remained a staff of the appellants until she was dismissed.
In the circumstances, I agree with the findings of the trial court that, the action of the appellants had the effect of reverting the respondent’s situation to STATUS QUO. In other words, her employment was still intact, the suspension without pay was still effective and the respondent was still a staff of the appellants until she was dismissed by the appellants on 3/5/04. Obviously, if the resignation had taken effect, there would not have remained any service to be terminated by dismissal.
In the instant appeal, the main reason why the appellants rejected the resignation of the respondent was aptly stated by DW1 in his evidence. It is therefore ridiculous for the appellants to argue that it was immaterial that the appellants did not accept the resignation and that the non-acceptance of the resignation cannot and did not diminish the efficacy and effectiveness of the resignation. Appellants cannot probate and reprobate. Law is not a game of chess or gambling or a game of hide and seeks. Law deals with factual situation and with the truth and reality of a case. It is morally reprehensible for the appellants to be playing hide and seek with the career and means of livelihood of the respondent in the manner they have done in the instant case on appeal. The appellants placed heavy reliance on the case of Yesufu vs. Governor, Edo State & Ors. (supra) and argued that the respondent having resigned from her office she has no interest to protect in that office and therefore she has no standing or right to sue on account of that office.
It is instructive to note that every case must and should be decided according to the facts and circumstances of each and every case. For a court to be bound by a decision of a superior court or to be persuaded by the decision of another court, the facts of the case must be on all fours or in pari materia with the one before it. See Magit vs. University of Agric., Makurdi (2005) 19 NWLR (Pt. 959) 211 at 247 and 257. The case of Yesufu vs. Governor, Edo State & Ors. (supra) is distinguishable from the facts of this case. Prof. Yesufu resigned his appointment as the Pro-Chancellor and Chairman of the Governing Council of Edo State University, Ekpoma, in order to avoid any embarrassment in the event of the dissolution of the Council during the currency of his tenure. Subsequently, he filed an action, seeking the protection of the same office. The trial Court, the Court of Appeal and the Supreme Court all held the action was incompetent and unmaintainable. It should be noted that Prof. Yesufu resigned voluntarily. His resignation was not refused and he was not subsequently dismissed from office.
In the instant case on appeal, the respondent was on suspension following allegations of financial impropriety in the Drug Revolving Scheme of which she was the head or in-charge. She was actually suspended from work without pay for allegations involving the sum of N2 million. The following facts are also relevant:
1. The appellants set up a panel of enquiry to investigate her.
2. She was arrested by the police on the complaint of the appellants on 28/8/02 and later released.
3. Frustrated and hungry she resigned her appointment while still under suspension without pay in March 2004.
4. The appellants refused to accept her resignation
5. On the 3/5/04, the appellants handed her a letter of dismissal for alleged act of financial impropriety involving N11 million.
Clearly, as can be seen, the facts of this instant case on appeal are distinguishable from those in Yesufu vs. Governor, Edo State University, Ekpoma. (Supra).
Now, there is world of difference between, “Resignation” and “Dismissal”. In Black’s Law Dictionary (with Pronunciations) Sixth Edition, page 1310, the word “Resignation” is defined as:
“Formal renouncement or relinquishment of an office.
It must be made with the intention of relinquishing the office accompanied with the act of relinquishments.”
At page 469 of the same book, the word “DISMISS” means;
“To send away; to discharge; to discontinue; to dispose of; to cause to be removed temporarily or permanently; to relieve from duty…”
Where a person resigns from office voluntarily, he or she is left with some dignity and respect but where a person is dismissed from office he or she has lost all dignity, integrity and respect and such a person is left with a stigma and shame. Even if it is argued that indeed the respondent had resigned her appointment, what then happens to the letter of dismissal handed to her by the appellants? Is the respondent to remain mute with the stigma and shame of dismissal hanging around her neck like a noose? It is for this reason that I conclude that it would be absurd if the respondent is prevented from exercising her right to recourse to judicial remedy.
The principle of the law is “ubi jus ibi remedium”, meaning: “where there is a wrong there is a remedy”. In the light of the above, the contention of the appellants must be commuted to mere sophistry. It is devoid of substance. I, therefore, resolve this issue in favour of the respondent and against the appellants. Put simply the respondent had locus standi to institute the suit at the court below and to maintain same.
The second sub-issue is whether the respondent’s suit is statute barred or not, having been filed outside the 3 months period prescribed by section 2(a) of the Public Officers Protection Law. It is common ground that the respondent was dismissed on the 3rd of May, 2004 (see page 13 of the record). She took out her writ on 1st November, 2004, that is, about 6 months after her dismissal, which was the date the cause of action arose (see pages 3 and 4 of the record).
The appellants have contended that the neglect, failure or omission of the respondent to institute the action within three months render her suit incurably defective, incompetent and unmaintainable. The respondent’s contention on this issue is that the provisions of section 2(a) of the Public Officers Protection Law do not apply to cases founded in contract. This question was settled 55 years ago in Salako vs. L. E. D. B. & Anor. (1953) 20 NLR 169, that the provisions of section 2(a) Public Officers Protection Ordinance (Now Act) do not apply in cases of recovery of land, breaches of contract, claim for work and labour done, etc. In that case, de Comarmond S. P. J., relied on Milford Docks Co. vs. Milford Haven U. D. C. Empire Digest. Vol. 38, page 109 No. 780; Foat vs. The Mayor, and C. of Margate 11 QBD 299 and Halsbury’s Laws of England 2nd Edition Vol. XXVI, page 298.
Also in Alapiki vs. Governor of Rivers State (1991) 8 NWLR (Pt. 211) 575 at 602; Ogundare, JCA, (as he then was, of blessed memory) in considering a similar provision relied on the case of NPA vs. Construzion, General. FCS and Anor. (1974) 12 SC 84, where the Supreme Court considered the scope of section 97(1) of the Ports Act, which is similar to section 2 of the Public Officers Protection Act. Ibekwe, JSC, confirmed that de Comarmond S. P. J. rightly stated the law in his judgment in Salako vs. L. E. D. B. & Anor. (Supra).
Similarly in J. S. C. & Anor. v. Alaka (1982) 8 – 10 CA 42 at 65, Agbaje, JCA, (as he then was) also held that the Public Officers Protection Law does not extend to transaction founded in contract.
In Amao vs. C. S. C. (supra), this Court per Achike, JCA, (as then was) held at pages 228 – 229 thus:
“The immunity from suits granted by section 2(a) of the Public Officers Protection Law does not extend to actions founded on contract but only envisages situations where personal or proprietary injury has been occasioned to a person by the act of a Public Officer. In the instant case, the learned Chief Judge was in error in applying section 2(a) of the Public Officers Protection Law to this suit which is challenging a breach of contract of employment and the dismissal of the appellants based on it…”
Also in Ibrahim vs. J. S. C. Kaduna State (1998) 14 NWLR (Pt. 584), Ogundare, JSC, in his dissenting judgment held that:
“An action for breach of contract does not fall within the contemplation of section 2(a) of the Public Officers (Protection) Law.”
Again in F. G. N. vs. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 at 197, the Supreme Court held that:
“The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done…”
In Oduku vs. Govt. of Ebonyi State (2004) 13 NWLR (Pt. 891) 481, a case which is almost on all fours with the instant case on appeal, Fabiyi, JCA, held at pages 503 – 504 that the provisions of section 2(a) of the Public Officers Protection Law cannot avail a public officer in a claim founded on contract and the trial court was absolutely in error when it held that the appellants’ action is statute barred.
See also CBN vs. Adedeji (supra).
Only recently, the Supreme Court in Osun State Govt. vs. Dalami (Nig.) Ltd. (2007) 9 NWLR (Pt. 1038) 66 at pages 83 – 84 held, per Katsina-Alu, JSC, that:
“Section 2 of the Public Officers’ Protection Act does not apply to cases of contract. It does not apply in cases of recovery of land, breaches of contract or claims for work and labour done. In the instant case, section 2 of the Act was inapplicable, the action being rooted in contract.
The facts of the above case are in pari materia with the facts in the instant appeal. I am bound by the above decision. Therefore, I hold the view that the position of the law has been robustly settled.”
See also Mbanu vs. Nigeria Mining Corp. (2006) 13 NWLR (Pt. 998) 659 at 692, per Nzeako, JCA.
I have carefully read through the cases cited by the appellants, notably: Adebanjo vs. Ogun State Sports Council (supra); Dauda & Ors. vs. University of Agriculture, Makurdi & Ors. (Supra); Fajimolu vs. University of Ilorin (supra) and Bassey vs. Minister of Defence & 2 Ors. (Supra), it is my observation that the question whether the Public Officers Protection Law is applicable to breaches of contract was never raised and it was never considered therein. So they are of no assistance to the appellants. The decision of a court is confined to the issues validly raised in the case. A case is decided on the facts before the court and facts of the case erect the ratio decidendi of the case. See Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 435.
From the foregoing, it is my finding that cases founded on or dealing with contracts does not come within the purview or contemplation of the provisions of section 2(a) of the Public Officers Protection Act. I, therefore, resolve this sub-issue in favour of the respondent and against the appellants.
On the issue relating to fair hearing, I find it necessary to refer to the provisions of section 9 of the University Teaching Hospitals (Reconstitution of Boards, Etc.) Act, Cap U.15 Laws of the Federation, 2004 (hereinafter referred to as the Act). I have reproduced same herein below.
Section 9(1):
“lf it appears to the Board that there are reasons for believing that any person employed as a member of the clinical, administrative or technical staff of the hospital, other than the Chief Medical Director, should be removed from his office or employment, the Board shall require the secretary to –
(a) Give notice of those reasons to the person in question;
(b) Afford him an opportunity of making representations in person on the matter to the Board; and
(c) if the person in question so requests within a period of one month beginning with the date of the notice, make arrangements;
(i) For a committee to investigate the matter and report on it to the Board;
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Board, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Board may so remove him by a letter signed on the direction of the Board.”
To begin with section 9(1) of the Act makes it mandatory that if it appears necessary to consider the removal of an officer in the cadre of the respondent, the Board shall require the Secretary to give notice to the affected person of the reason why he may be considered for removal. All through the gamut of the evidence adduced by the parties at the court below particularly, Exhibits “G” to “G14”, there is no notice issued by the Secretary to the respondent as stipulated under section 9(1 )(a) of the Act.
Secondly, the respondent was not afforded an opportunity of making representations in person on the matter to the Board, not the Panel investigating the allegation. The foregoing is conditions precedent to effecting any disciplinary action on the respondent.
Thirdly, the setting up of an investigating committee may be done only if the respondent request for it. In the instant case there is no evidence that in the record that the respondent made any such request. Rather, an investigation Panel was instituted for her.
At this juncture, it is glaringly clear that the appellants blatantly violated the provisions of section 9(1) (a), (b) and (c) of the Act. In UNTH Management Board & Anor. vs. Nnoli (1994) 8 NWLR (Pt. 376), the Supreme Court held at page 402 of the report that the word “shall” in section 9(1) of the Act is mandatory and does not permit of any discretion, variation or circumvention of the mandatory procedure stipulated.
Now, where a member of staff of the 1st appellant is to be removed, there must be strict compliance with the provisions of section 9(1) of the Act. The Board must require the Secretary to give notice of the reasons for the removal to the staff in question in fulfillment of the provisions of section 9(1) of the Act, it is incumbent on the 2nd appellant, the Board, to require its Secretary to give the respondent a query to hear her own side. Failure to do so will amount to a denial of fair hearing to the respondent as enshrined in section 36(1) of the 1999 Constitution.
Where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the detail. The non-observance in the process of reaching any decision renders the decision itself a nullity.
The appellants having failed to observe the statutory requirement laid down in section 9(1) of the Act, the dismissal of the respondent is ultra vires and the dismissal is a nullity. See U. N. T. H. M. B. vs. Nnoli (supra) at page 413.
Moreover, where a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such procedure must be strictly followed. See UNTH Management Board & Anor. vs. Nnoli (supra) at 401. Also in C. C. B. (Nig.) Plc. v. A-G of Anambra State & 1 Or. (1992) 8 NWLR (Pt. 261) 528 at 556. It was held that it is settled law that where a statute provides a particular method of performing a duty regulated by the statute that method and no other must have to be adopted. In Amasike vs. Registrar-General, Corporate Affairs Commission (2006) 3 NWLR (Pt. 965) 462 at 500, this Court per Odili, JCA, held thus:
“A public body or authority invested with statutory powers must act within the law and take care not to exceed or abuse its power, it must keep within the limits of the authority committed to it. It must act in good faith and reasonably. (Psychiatric Hospital Management Board vs. Ejitagha (2000) 11 NWLR (Pt. 677) 154.”
The appellants’ non-compliance with the provisions of section 9(1) (a), (b) and (c) of the Act amounts to a denial of fair hearing to the respondent guaranteed in section 36(1) of the 1999 Constitution.
The appellants also suspended the respondent from duty with effect from 1/7/02 without pay on the ground of financial impropriety involving the sum of N2m. That action by the appellants violated the section 9(4) of the Act, which provides that any person suspended shall subject to section 9(2) and (3) of the Act be on half salary. In the instant case the respondent was on suspension without pay.
It is important to bring to the fore that there are two different and distinct allegations involved in the instant case. Firstly, the respondent was suspended without pay for an allegation of financial impropriety involving the sum of N2 million only against her. It was on this allegation that the Panel was constituted to investigate the respondent.
The second allegation, which is quite distinct and more serious than the first, was revealed for the first time in Exhibit “E”, the letter of dismissal. In Exhibit “E”, the respondent was dismissed for stealing the sum of N11 million. No details were given in the letter of dismissal, Exhibit “E”. Curiously enough the respondent was never confronted with the allegation.
DW2, Dr. Ita Thomas Essien, who was the Chairman of the Panel who investigated the allegation of financial impropriety testified on this issue at page 95 of the record as follows:
“Our investigation did not include the loss of N11 million so we did not confront her about that…”
It is therefore clear that the respondent was dismissed for an allegation she never knew of. That clearly is a violation of section 9(1) and (3) of the Act and section 36(1), (4) and (6) of the 1999 Constitution.
In the circumstances, the contention of the appellants that:
“It is hard to justify the conclusion of the learned trial Judge that a person who was repeatedly queried and a Panel constituted to investigate was not given fair hearing…”
is erroneous and grossly misconceived having regard to the evidence of PW1, the respondent, and DW2. The respondent was never given any notice of the allegation that she stole N11 million. She was never confronted with this allegation. She was never given an opportunity to make representation in person on the matter to the Board in compliance with the provisions of section 9(1) (a) and (b). The non-compliance is clearly a violation of section 9(1) (a) and (b) and more importantly, sections 36(1), (4) and (5) of the 1999 Constitution. A denial of a party of his right to be heard is a direct infringement of the fundamental principle encapsulated in the maxim audi alterem partem” i.e., “hear the other side”. That in effect is a serious denial of fair hearing. See Okafor vs. Administrator-General, Anambra State (2006) 12 NWLR (Pt. 993) 131.
The Act which established the appellants empowered them to employ staff and to discipline them, it behoves the appellants to adhere strictly to the provisions dealing with an erring staff. A staff of the appellants must be given notice of his or her wrong doing and informed about the reason for the disciplinary action. In the instant case on appeal, the appellants never complied with the principles of fair hearing as well as the provisions of section 9 of the Act. Where a person was never confronted with the allegation which formed the basis of the dismissal, the case of denial of fair hearing is firmly established. So the cases of Yissa vs. Benue State Judicial Service Commission (supra); Osumah vs. Edo Broadcasting Service (supra) relied upon by the appellants are inapplicable to the facts of this case.
It is a fundamental principle of natural justice that a person must be given an opportunity of a hearing, which hearing must be fair, before being deprived of his propriety right. See Nwokoro vs. Onuma (1990) 3 NWLR (Pt. 136) 22 and Lebile vs. Registered Trustees of Lands (2003) 2 NWLR (Pt. 804) 399.
On Issue No.3, which is whether the learned trial Judge was correct when he held that the respondent ought to have been tried and convicted before she could be validly dismissed, the appellants contended that the respondent was dismissed following allegations of gross misconduct. Therefore, they were justified in dismissing her without recourse to criminal prosecution because the prosecution of an employee before the law court is not a sine qua non to the exercise of the power of summarily dismissal by an employer.
There is a world of difference between “gross misconduct” and a “criminal offence”. They are neither synonymous nor interchangeable and they have different denotations and connotations. They mean different things with different legal implications and considerations.
In Jibril vs. Mil. Admin. of Kwara State (supra), this Court held that:
“There must be a clear distinction between gross misconduct, that is administer insubordination and dishonest, e.g., telling lies, which is not serious enough to be labeled as a “criminal offence” on the one hand, and the allegation of outright commission of an offence contrary to the penal of criminal code…”
The allegation against the respondent is that she stole the sum of N11 million. This is clearly and unambiguously stated in Exhibit “E”, the letter of dismissal. It is instructive at this juncture to refer to the appellants’ averments in paragraph 15 of their statement of defence where they said:
“Part of the money stolen by the plaintiff was used to open a Boutique called Option Boutique at Ndidem Usang Iso Road, Calabar, and to buy a Nissan car with Reg. No. AE 607 DUK. She also paid substantial sum of money into her personal Account No. 1013986414 at Standard Trust Bank instead of the DRF Account. Besides at various times, the plaintiff also took substantial sums of money home…”
From the averment in paragraph 15 of the appellants’ statement of defence, it is abundantly clear that the allegation against the respondent was a clear case of stealing and not a case of gross misconduct. The offence of stealing is a very serious criminal offence punishable under sections 383 and 390 of the Criminal Code.
The feeble attempt by the appellants to equate the criminal offence of stealing with mere misconduct or gross misconduct is cosmetic and mere sophistry. The issue here, as stated by the appellants themselves in paragraph 15 of their statement of defence, is stealing. In the circumstances, the cases of Yissa vs. Benue State Judicial Service Commission (supra); Osumah vs. Edo Broadcasting Service (supra); Osagie vs. N. N. Bank Plc. (supra); Bamgboye vs. Unilorin (supra); Uzoho vs. Task Force on Hospital Management (supra); Yusuf vs. UBN (supra); Olarewaju vs. Afribank (Nig.) Plc. (supra); are clearly distinguishable and they are inapplicable to the facts of the instant case on appeal.
At this juncture, I shall refer to the provisions of Section 36(4) and (5) of the 1999 Constitution. Section 36(4) provides that:
“Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal…”
And section 36(5) provides:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
A person accused of a crime is entitled to:
(a) Be confronted with his crime;
(b) Be told the nature and content of the case against him;
(c) Be brought face to face with his accusers and their witnesses;
(d) Be given the opportunity to test their veracity under the fire of cross-examination;
(e) Defend himself personally or with the assistance of a counsel of his choice;
(f) To call such witnesses that he wishes to call to support his case; and
(g) All the above within a reasonable time and before a court or tribunal constituted in such a way as to ensure its fairness and impartiality.
See Federal Civil Service Commission vs. Laoye (1989) 2 NWLR (Pt. 106) 652 referred to. (P. 403, paras. F-G).
Section 9(3) of the Act provides thus:
“For good cause, any member of the staff may be suspended from his duties or his appointment may be terminated or he may be dismissed by the Board and for the purposes of this section “good cause” means:
(a) A conviction for any offence which the Board considers to be such as to render the person concerned unfit for the discharge of the function of his office; or
(b) …..
(c) …..
(d) …..
From the above provisions, it is inferable that even under the Act, a person accused of a criminal offence should be tried and convicted before he can be dismissed from his employment.
In a master and servant relationship, where a criminal charge or accusation is involved care must be taken that the provision of section 36(4) of the 1999 Constitution is adhered to. In such a situation the employer is prohibited from instituting disciplinary measures against his employee. Therefore, there was a need to establish the guilt of the respondent on the theft of N11 million in a competent court or judicial tribunal before her dismissal. This has been the position of the law as established in a plethora of cases. See Sofekun vs. Akinyemi (1980) 5 – 7 SC 1; Denloye vs. M. D. P. D. C. (1968) 1 All NLR 306; Ekperokun vs. Unilag (1986) 3 NWLR (Pt. 34) 162; Olatunbosun vs. NISER (1988) 3 NWLR (Pt. 80) 25 and FCSC & 2 Ors. vs. Laoye (1989) 2 NWLR (Pt. 106) 652, just to mention a few.
In Dangtoe vs. C. S. C. Plateau State (supra) at page 158, Karibi- Whyte held thus:
“Where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the Commission of the offence has been proved beyond reasonable doubt. An administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases…”
At page 157 of the same report, his Lordship said:
“Where allegation of the commission of criminal offences has been denied and disputed, the burden rests on the accuser to prove the Commission of the alleged criminal offences beyond reasonable doubt. This burden can only be discharged by a court established by law and constitutional vested with powers to exercise criminal jurisdiction.”
Obaseki, JSC, in Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, had this to say:
“There is under our law no sliding scale of elements of satisfaction as to the guilt of a person of an offence. The appearance of guilt is not delusory appearance of guilt. The appearance of guilt which can satisfy this action is measured by the quantum of proof as laid down by law. It is for this reason that guilt in criminal matters is left for the ascertainment of court of law or other tribunals before it is accepted and acted upon by Administrative Tribunals.”
The respondent here never admitted stealing the sum of N11 million. She was not even confronted with the allegation before she was dismissed talkless of knowing and admitting the offence. The respondent in this case was never given any notice of the offence of stealing N11 million and neither was she given an opportunity of being heard on the allegation of stealing N11 million. Whatever the Investigating Panel did is confined to the allegation concerning the sum of N2 million and it has nothing to do with the allegation that the respondent stole N11 million.
Where there is an allegation of the commission of criminal offence against a person, which has been denied by the accused, the person making the accusation of the commission of the criminal offences must satisfy the constitutional requirement by establishing the guilt of the accused according to law. The appellants not having complied with the provisions of sections 36(1), (4) and (5) of the 1999 Constitution, the respondent was deprived of the right of fair hearing. It should be noted that judicial powers are not vested in the Investigating Panel established or constituted by the appellants. Therefore, any purported exercise of judicial powers by the Panel is a denial of the right of fair hearing under section 36(1) and (4) of the 1999 Constitution. The dismissal of the respondent is therefore null, void and of no effect whatsoever. I resolve this issue against the appellants.
In the final analysis, I find no merit in this appeal and it deserves to be dismissed.
Accordingly, this appeal be and is hereby dismissed. The judgment of Ajakaiye, J., of the Federal High Court, sitting at Calabar, in Suit No. FHC/CA/CS/102/2004 delivered on 27/9/07 is hereby affirmed. Costs is assessed and affixed at N10, 000.00 in favour of the respondent.
Appeal dismissed.
Other Citations: (2008)LCN/2966(CA)
