Benin Electricity Distribution Company Plc. V. Mr. Napoleon Esealuka (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court sitting at Benin delivered by Hon. Justice Awokulehin on 23rd January, 2010. The facts that led to this appeal are as follows:

The Respondent herein was Plaintiff at the trial court and he was the employee of the Appellant who was Defendant at the trial court. The Respondent’s employment was confirmed in 1987 and became officer III in 1996. In 1995, a fraud took place in the Appellant’s office and the Respondent and others were arrested and charged to the Magistrate Court. In October 1996, he was interdicted and placed on half salary. He stood trial for two years and was discharged and acquitted.

During the subsistence of Magistrate Court proceedings, Respondent by a letter was invited to appear before an Ad-Hoc Administrative Panel. He denied all the allegations leveled against him.

After his discharge and acquittal by the Magistrates’ court he instructed his solicitors to write to the Appellant demanding that he be recalled to duty as he was still under interdiction. The Respondent claimed that the last letter the Respondent received from the Appellant was the letter inviting him to the Ad-Hoc panel. He did not receive any letter of dismissal OR termination of his appointment. He insisted that the outcome of the Ad-Hoc panel was never communicated to him. The Respondent said he did not move out of his residence which he moved into in 1996 and the address is well known to the Appellant.

The Appellant claimed the Respondent was dismissed from its service and the letter was sent by registered post. The Respondent filed a writ insisting that his employment was still subsisting. He claimed the following reliefs.

(a) A Declaration that the appointment of the plaintiff is subsisting having not been reviewed by the appropriate authority vested with the competence to legally do so.

(b) A Declaration that having been cleared of any complicity with regards to the allegation leveled against the plaintiff, the defendant is stopped from withholding the financial benefits, allowances and salary due to the plaintiff.

(c) A Declaration that the letter of interdiction issued to the Plaintiff in October, 1995 is not a Letter of Termination of employment or Dismissal from service.

(d) A Declaration that having failed to come up with anything negative against the Plaintiff after subjecting him to the constituted Ad-Hoc Committee by the Defendant in 1997, the Defendant is stopped from taking any step howsoever from preventing the plaintiff from continuing with his job in the Defendant’s establishment.

(e) An order directing the Defendant to immediately recall the Plaintiff to work, pay to plaintiff all his outstanding salaries/allowances from October, 1996 until completion of employment in accordance with the terms and condition of Employment. The salaries and allowances, etc. are set out below as special damages.

The Appellant insisted during the trial that the Respondent was dismissed from its service vide a letter dated 17th December, 1999 which was sent to the Respondent by registered post. The postal registration slip was tendered and admitted without objection.

The Appellant claimed that Respondent was dismissed from its service and that the letter of dismissal was sent to Respondent by registered post. However, Appellant could not show by way of any evidence that the dismissal letter was in fact received or signed for by the Respondent. The Respondent went to court insisting that his employment with the Appellant is still subsisting.

The learned trial judge in his judgment delivered on the 23rd January, 2009 declared the dismissal of the Respondent invalid on the grounds of non-delivery of the dismissal letter to the Respondent and ordered his reinstatement including the payment of all his outstanding entitlements from the date of interdiction until the date he is recalled.