G.O. Dudusola Vs Nigeria Gas Company Limited (2013)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKAAHS, JSC
The appellant was employed by the Nigeria National Petroleum Company (NNPC) in October, 1983 as an Administrative Officer II. In 1986 he was promoted to Administrative Officer I and subsequently seconded to the Nigeria Gas Company Limited (a subsidiary of the NNPC) in 1989. He was thereafter promoted to Senior Administrative Officer which rank he retained until the 26th September, 1990 when his employment was terminated. The ground for the termination of his appointment as stated in the said letter was that his services were no longer required. He thereupon sued the respondent as defendant before the Delta State High Court, Warri claiming the following reliefs in paragraph 15 of the statement of claim:- ‘(1) A declaration that the letter of termination dated 26’ day of September, 1990 issued to the plaintiff by the defendant is wrongful, void and of no effect whatsoever in that the termination was based on an allegation of crime which was never investigated by the Nigeria Police nor brought before any court of law. PAGE| 2 (2) A declaration that the letter of termination dated 26th day of September, 1990 is contrary to the rules of Natural Justice and therefore void and of no effect, as same was an outcome of the defendants management decision on an alleged crime of stealing against the plaintiff (3) A declaration that the plaintiff is still an employee of the defendant and entitled to all the benefits of his office from the 26th day of September, 1990. (4) An order of court directing the defendant to re – instate the plaintiff to his office of employment and pay him all outstanding salaries emoluments and benefits from the date of the purported termination. IN THE ALTERNATIVE An order compelling the defendant to pay all the plaintiffs salaries and allowances at the rate of N1, 814.00 per month from the date of the alleged termination up till September, 2019 when the plaintiff would ordinarily be expected to retire from the services of the defendant at the age of 60 years. PARTICULARS (i) The plaintiffs salaries from September, 1990 to September, 2019 at the rate of N1,814.00per month……..N631,272.00 (ii) Allowances: Leave bonus, retirement benefit unspecified amount N631,272.00 The respondent also filed its statement of defence. The appellant testified and tendered his letters of appointment, promotions and termination. Mr. Hayatu Yusuf Jafaru testified for the respondent. At the conclusion of hearing the trial court entered judgement in favour of the plaintiff/appellant. Being dissatisfied with the judgement the defendant now respondent appealed to the Court of Appeal, Benin Division which allowed the appeal set aside the decision of the trial court and dismissed the plaintiffs claim. It is from the decision of the Court of Appeal Benin Division (herein referred to as the lower court) that the appellant has appealed to this Court in his Notice of Appeal dated 22nd day of April, 2005 containing six grounds of appeal from which he distilled two issues for determination. The issues formulated are:- 1. Whether the learned Justices of the Court of Appeal were right in holding that the appellant did not prove that his employment by the respondent was based on an unproven criminal allegation which rendered same wrongful 2. Whether the learned Court of Appeal Justices were right in holding that the appellant was not entitled to be reinstated as ordered by the trial High Court and if so whether they were not wrong in failing to consider the appellants alternative claim for damages. The respondent also submitted two issues for determination which read – (1) Whether the appellant established before the trial court that the termination of his employment was predicated on an allegation of a criminal act and a violation of his conditions of service (2) If issue No. 1 is resolved in the positive, whether this entitles the appellant to the relief being claimed. Arguing the first issue the appellant referred to paragraphs 6 – 9 of the statement of defence where the defendant confirmed in paragraph 8 that it will lead evidence to show the involvement and complicity of the plaintiff in the theft of the items over which the investigation report was issued. He therefore submitted that having admitted the relevant facts in the statement of defence the appellant is relieved of the burden of proof. In paragraphs 7, 8, 9 and 10 of the statement of claim, the appellant as plaintiff narrated how Mr. Obiapi drew his attention to the missing items in the warehouse from which he invited his written response and this led to the recommendation for his dismissal which facts were admitted in paragraph 8 of the statement of defence. In paragraphs 7, 8, 9 and 10 of the Amended Statement of Claim, the plaintiff averred as follows:- ‘7. However on or about the 27th of July, 1990 the officer – in – charge of Security and Investigation Department of the defendant, Mr. L.N. Obiakpi called the plaintiff to his office and therein orally questioned the plaintiff about missing items from the defendants warehouse, within the unit of the plaintiffs employment. 8. The said Mr. L. N. Obiakpi informed the plaintiff that the items missing from the warehouse included 122 umbrellas, 8 rain coats and 2 pairs of rain boots all valued at N21,127.00. The plaintiff was made to reduce his response to the confrontation into writing which he did. The plaintiffs role in respect of the warehouse is supervisory over the Store Supervisor and the Store Keeper. He denied knowledge about the missing items. PAGE| 3 9. However in Mr. L. N. Obiakpis report dated 14th August, 1990 on his investigation into the said missing items, as submitted to the defendants management, he accused the plaintiff of stealing the said missing items from the defendants warehouse, and recommended that the plaintiff be dismissed from the defendants services on (sic) reason of having stolen the missing items. 10. Acting on the Mr. L. N. Obiakpis aforesaid report, the defendants management without further steps to ascertain or hear from the plaintiffs merely terminated the plaintiffs employment in the services of the defendant vide defendants letter ref. No. NGC/APD/WR.37of26,h September, 1990. The decision was taken at the defendants Board of Directors Meeting of 26′ September, 1990. The defendant is hereby put on notice to produce at the hearing of this case, the minutes of the said meeting held on 26′ August, 1990 and Mr. L. N. Obiakpis said report to the defendants management dated 14′ August, 1990’. The defendant filed a statement of Defence dated 17th day of September, 1992. In paragraphs 5 (f), 6, 7 and 8, the defendant averred:- ‘5. Defendant vehemently denies paragraphs 5 to 15 of the plaintiffs statement of claim. In further answer thereto the defendant avers as follows: (f) That the plaintiffs employment terminated vide letter dated 26′ day of September, 1990 was done according to the term of conditions of service and so validly terminated 6. ALTERNATIVELY defendant aver (sic) that the plaintiff was clearly not bound to be convicted acquitted or charged for any alleged criminal conduct before the defendant can exercise its right to terminate or dismiss the plaintiff. 7. Defendant will contend that even if all the allegations averred to in paragraph (sic) 7 -11 of the plaintiffs Statement of Claim give rise to a criminal offence, the question for answer by this Court is not whether the plaintiff committed the crime but whether the defendant company acted reasonably in the circumstances in terminating the plaintiffs appointment. 8. At the hearing of this suit defendant will lead cogent and credible evidence of the theft of the 122 umbrellas, 8 rain coats and 2 pairs of rain boots all valued N21,117.00 property of Nigerian Gas Company, Ekpan and evidence to show the involvement and complicity of the plaintiff Defendant pleads and relies on the investigation report pleaded in paragraph 10 of the plaintiffs Statement of Claim. The termination of the plaintiffs appointment is a reasonable act by the defendant company. Plaintiff was given opportunity to defend himself and he made use of it’. Although the defendant later brought an application to amend the Statement of Defence denying all the averments in the Statement of Claim, the application was opposed on the ground that the plaintiff had closed his case. The trial Judge in his ruling dated 4th October, 1994 held that what the defendant was attempting to do was to substitute the statement of defence already filed and not to amend it and the application for amendment was refused. So the subsisting statement of defence on which the matter was heard and determined is the one dated 17th day of September, 1992. The averments made in paragraph 6 of the statement of defence cannot be glossed over. In the said paragraph 6 the respondent as defendant pleaded that- ‘6. ALTERNATIVELY defendant aver (sic) that the plaintiff was clearly not bound to be convicted acquitted or charged for any alleged criminal conduct before the defendant can exercise its right to terminate or dismiss the plaintiff. The letter terminating the appellants appointment tendered as Exhibit A did not give any reason for the action taken against him. I would have differed with the lower courts finding that the appellant needed to adduce evidence to prove his averments in paragraphs 7, 8 and 9 of the statement of claim as they were tacitly admitted in paragraph 8 of the statement of defence if the declaratory reliefs were not sought. See: Igbinovia vs U. B. T. H (2000) 8 NWLR (Part 667) 53. What the appellant would have needed to establish is the fact that the respondent had no power to dispense with his services. Exhibit B the letter of appointment had no provision forbidding the respondent from proceeding as it did to disengage the appellant from its employment. If there was such a provision spelt out in the Conditions of Service, it was the duty of the appellant to produce the document. His evidence to the effect that the National Industrial Court ruled in PENGASSAN vs NNPC that before a senior staff is terminated, a reason must be given for such an action and he belonged to that category of staff will not suffice unless the said condition was clearly stated in his contract of service which was not produced before the trial court. Even though the appellant was not subjected to the criminal process to determine his guilt before relieving him of his employment as was suggested by Obaseki JSC in Garba vs University of Maiduzuri (1986) 1 NWLR (Part 18) 550 which dealt with the expulsion of students from the University where the Vice Chancellor set up an Investigation Panel to determine the culpability of students involved in rampage in which he was a victim, there is the latter decision in Baba vs Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Part 192) 388 that the appellant was heard before his services were terminated and so the rules of Natural Justice that required that the appellant should be given fair hearing were observed. In his contributory judgement Bello CJN held that an administrative panel is not bound to follow the procedure and practice of the court of law; that although it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him, but also to answer it, the absence of oral hearing or an opportunity to be heard before an administrative tribunal does not necessarily tantamount to denial of natural justice. PAGE| 4 As stated in the judgement of the lower court, a contract of service is the bedrock upon which an aggrieved employee may found his case, he succeeds or falls on the terms thereof. Since neither of the parties tendered the contract of service, the court can only fall back on the common law principle of master and servant relationship. It has not been alleged that the appellants employment had statutory flavour. If this were the case, the respondent would be bound to comply with the conditions of service otherwise any action taken to bring to an end the appellants employment would be declared null and void and any other act based therein will also be void. See: Olaniyan vs UNILAG (1985) 2 NWLR (Part 9) 599; Shitta – Bey vs Federal Public Service Commission (1981) Vol. 12NSCC 26 at 28. From the evidence presented, it is clear that the relationship between the appellant and the respondent is a mere master and servant relationship. In such a case the respondent who is the master has an unfettered right to terminate or even dismiss the appellant, who is the servant. The motive in exercising the right does not render the exercise of the right ineffective. In order words the respondent is at liberty to terminate the appellants employment with or without any reason. See: Fakuade vs Obafemi Awolowo University Teaching Hospital (1993) 6 SCNJ 35 at 44; (1993) 5 NWLR (Part 291) 47 at 58; UMTHMB vs Dawa (2001) 16 NWLR (Part 739) 424. Termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. The law is trite that a servant (employee) even though willing and able cannot be imposed on an unwilling master (the employer). Where parties to a contract mutually agree that the condition for termination is the giving of notice or payment of equivalent salary in lieu of notice, the only valid way to discharge a party from his obligations under the notice stipulated is the payment of the equivalent salary for the period of the notice. See: Chukwumah vs Shell (1993) 4 NWLR (Part 289) 512. In Exhibit A the appellant was offered one months salary in lieu of notice. In the absence of the conditions of service, it is presumed that the appellant was entitled to one months notice or a months salary in lieu of notice. The appointment was therefore validly terminated. Having found that the appellant was entitled to one months salary in lieu of notice, there is nothing left to consider in the second issue whereby the appellant sought to advance the argument that he was entitled to the alternative claim for damages. This line of argument was abandoned by learned counsel and what he sought for was reinstatement which cannot be ordered. I find that there is no merit in the appeal and it is hereby dismissed. I affirm the judgement of the lower court. I make no order on costs. M. S. MUNTAKA-COOMASIE: I have an opportunity of reading in advance the lead judgment just delivered by my learned brother Kumai Akaahs JSC. I entirely agree with the reasons and conclusions herein adumbrated in the lead judgment. This appeal further reinstated the law vis-a-vis the master servant relationship. The judgment of the lower court is hereby affirmed while the main appeal is dismissed. MAHMUD MOHAMMED, JSC: The appeal is from the judgment of Court of Appeal Benin delivered on 26th January, 2005 by U. M. Abba-Aji, JCA in leading judgment of the Court allowing appeal from the judgment of a Warri High Court by Bozimo J. (as she then was) given in favour of the Plaintiff now Appellant in his claims against the Defendant/Respondent for terminating the employment of the Appellant on giving him one months salary in lieu of notice. The Respondents letter of termination of Appellants appointment is dated 26th September, 1990. From the record of appeal the following facts are not at all indispute. 1. Employment relationship between the Appellant and the Respondent had no statutory flavour. It was purely master/servant relationship. 2. With the master/servant relationship between the parties, the right of the Respondent to terminate the appointment of the Appellant for any reason or for no reason at all is not curtailed under the law of contract of employment. 3. The fact that the Appellant was found to have been involved in some dishonest conduct resulting in the termination of his employment having been given one months salary in lieu of notice the Appellants complaint of denial of natural justices has no basis whatsoever in law. As the letter of termination shows that the services of the Appellant were no longer required by the Respondent, that was quite in order under the law. I am therefore in complete agreement with my learned brother Akaahs, JSC that this appeal lacks merit and ought to be dismissed. Accordingly, I also dismiss this appeal and abide by the orders in the lead judgment including the order on costs.