Nigerian Maritime Administration And Safety Agency V. Stephen Ad Odey (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Calabar Division delivered on 31st October, 2008 setting aside the dismissal of the respondent by the Appellant.

The respondent was a staff of the Joint Maritime Labour Industrial Council whose assets and liabilities were transferred to the Appellant after the establishment of the Appellant in 2007.

Sometime in June, 2006, the Appellant discovered some irregularities and started investigations. The respondent was issued with a query to explain the money traced to his account with Fin Bank Plc and many other aspects of the respondent’s activities. Respondent’s answer was not satisfactory to the Appellant who subsequently suspended him. The Respondent was thereafter summoned before the Appellant’s disciplinary committee. The respondent was consequently dismissed on those grounds on 31st day of July, 2006.

After this dismissal, the police on their own charged the respondent to Court for stealing. The victim of the theft did not show up and the respondent was discharged on a no-case submission in Suit No. MC/28C/2007 on 14th day of February, 2007. After the discharge of the respondent, he filed a suit against the Appellant, challenging his dismissal before the Federal High Court, Calabar. The trial Judge set aside the dismissal of the Respondent and held that the decision in the change at in the Magistrate Court operated as estoppel in the whole matter.

Dissatisfied, the Appellant filed a notice and eight grounds of appeal on 25th January, 2010. The Appellant filed its Appellant’s brief on 28th September, 2010 and articulated three issues for determination as follows:

“1. Whether the learned trial Judge was right when he held that the dismissal of the Respondent was based solely on criminal offences which only a court can entertain and as such, a violation of Respondent’s right to fair hearing. (Grounds 2 & 5).

2. Whether the discharge and acquittal of the respondent in a charge of stealing by the Magistrate Court ought to operate as estoppel and a vindication to the Respondent who was dismissed on separate acts of misconduct (Ground 6).
3. Whether the Respondent had established his claim to employment with statutory flavour to warrant an order for reinstatement. (Ground 8).”

The Respondent filed his brief and adopted the three issues articulated by the Appellant.

ISSUE 1:

The learned counsel to the Appellant submitted that the respondent was dismissed after the disciplinary committee which he appeared before found him guilty of serious misconduct to wit false representation, fraudulent conduct and forging of official documents. Counsel argued that Rule 030401 of the Public Service Rules provides as follows:

“Serious misconduct is a specific act of serious wrong doing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.”

Learned counsel contended that the Public Service Rules provides the categories of acts of misconduct which are not closed, so long as they are found to be injurious to the employer’s interest and undermine the confidence in employment relationship: See Osakwe vs. Nigerian Paper Mill Ltd. (1998) 7 SC Pt.11 page 108. Counsel contended that the bulk of the acts of misconduct predicating his dismissal have less criminal profile tending towards deceits and dishonesty as follows.

1. False representative or misrepresentative.
2. Fraudulent conduct or fraudulent act.
3. Forging of official documents and falsification of record.

Each of these grounds of respondent’s misconduct would on its own and independent of the other, constitutes a specific act of serious wrong doing and improper behaviour pursuant to Rule 030401 of the Public Service Rules. Rule 030411(b) Public Service Rules provides thus:

“An officer acquitted of a criminal offence shall not be penalized for any charge of which he/she has been acquitted, but nothing in this rule shall prevent his/her being dismissed or otherwise punished on any other charges arising out of his/her conduct in the matter…”