Davidson Obianwuna V. National Electric Power Authority (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

This appeal is sequel to the judgment of Ajakaiye, J., of the Federal High Court, holden at Enugu, delivered on 18th March, 2004,

?The appellant was employed in the services of the Respondent on 29th April, 1981 and was until his dismissal, Officer Grade 1 Programmer in the Computer Department. The appointment was subsequently confirmed. The position is pensionable. The Respondent was a body established pursuant to an Act of the National Assembly. By a letter dated 5th October, 1994 the Plaintiff was dismissed from the services of the Respondent based on the allegation that the Appellant committed fraud between 1989 till the date of the query i.e 14th February, 1994 while heading the Computer Centre Owerri. The Appellant brought an action at the Federal High Court, Enugu seeking inter alia: a declaration that his purported dismissal from the services of the Respondent was invalid, illegal, and null and void, thus challenging his dismissal. The Appellant also sought, inter alia: an order of Court reinstating him to his status as a staff of the Respondent. The Appellant complained that he was not

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given a fair hearing and that the Provisions of the Conditions of Service admitted in evidence was not complied with before his dismissal. The Appellant claimed that although he was accused of fraud, he was not first tried by a Court of competent jurisdiction before he was dismissed from his employment.

Pleadings were filed and exchanged between the parties. The suit then proceeded to hearing and at the end of it, the learned trial judge found for the respondent and dismissed the appellant’s claim. The appellant, dissatisfied with the said judgment appealed against it to this Court, anchored on five grounds of appeal. In order to prosecute the appeal, the appellant?s brief of argument, settled by Ogochukwu Onyekwuluje, Esq., was filed on 26th September, 2008. The same was deemed as properly filed and served on 26th September, 2008. In it, three issues were identified for the determination of the appeal. They are, to wit:
1, Whether from the contents of the Query, Exhibit M, the offence for which the Appellant was accused of was not a criminal offence requiring a fair determination of a competent Court before the Plaintiff’s employment could be

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determined. Ground 3.
2. Whether the Court was not wrong in relying heavily on the evidence of DW. 1 who was not fully cross-examined at the trial. Ground 1.
3. Whether the Plaintiff’s employment was an employment with statutory flavour and whether in view of same the Appellant’s employment was properly determined in accordance with the provisions of the Constitution, the staff conditions of service and the Act creating the Respondent (NEPA). Ground 2, 4, 5.

On the part of the respondent, Emeka Oko, Esq., settled the Respondent’s brief of argument which was filed on 23rd May, 2011 and deemed properly filed and served on 12th November, 2014. Three issues were also identified therein for the resolution of the appeal, thus:
i. Whether from the contents of Exhibit ‘M’ (the query) and Section 3 Sub-section 33:02 Paragraph 1 of Exhibit “Q” (Condition of Service) the Appellant was dismissed on allegation of criminality requiring determination of a Court of competent jurisdiction before the Plaintiff’s employment could be determined. Ground 3.
ii. Whether placing a probative value by the trial Court on the evidence of Dw1 who was not fully

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cross-examined at the trial amounts to a denial of fair hearing. Ground 1.
iii. Whether the trial Court was right in dismissing the plaintiffs case having found as a fact that Plaintiff did not enjoy appointment with a statutory flavour. Grounds 2, 4 and 5.

I am satisfied with and adopt the three issues nominated by the appellant’s learned counsel for the determination of the appeal. I shall consider and determine them together.

Arguing issue 1, it is the contention of the appellant’s learned counsel to the effect that upon a perusal of Exhibit M which was the query issued to the appellant with respect to some fraud perpetrated at the Computer Centre, Owerri between May, 1989 till the date of Exhibit M, a criminal offence was suggested as having been committed, but that the learned trial judge, only considered Paragraph 2 of Exhibit M. He submitted that a document ought to be construed a whole and not paragraph by paragraph. He referred to CBN v. Igwillo (2007) 4 NWLR (Pt.1054) 393; Royal Exchange Assurance Nigeria Ltd v. Aswani ile Industries Ltd (1991) 2 NWLR (pt. 176) 639. He furthermore, submitted that although an employer in writing

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