Johnson Omale V. University Of Agriculture, Makurdi & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Makurdi Division delivered on 5th July, 2006 wherein the court found in favour of the plaintiff (appellant herein) but granted only some of the reliefs claimed. The appellant was dissatisfied with the judgment and filed a notice of appeal dated 23rd September 2006 containing four grounds of appeal.

The brief facts of the case that led to the appeal are as follows: The appellant was a porter employed by the 1st respondent. On 16/9/93, at the close of work, he was accosted by a security guard and questioned as to the contents of his bag. Upon a search of the bag, a large packet of Omo detergent was found. It was alleged that the Omo belonged to the respondents. The appellant stated that he purchased the Omo on his way to work from a supermarket and obtained a receipt. He said that he handed the receipt over to the security guard. On 14/10/93 he was suspended from duty. He was subsequently invited to appear before the respondents’ disciplinary committee where he explained that the receipt for the Omo was with the security guard who took the Omo from him. According to the appellant nothing was heard from the respondents thereafter until 1/9/99 (six years later) when he was invited to appear before the Presidential Visitation Panel pursuant to his letter of appeal to the said panel dated 23/8/99. It was the appellant’s contention that after his appearance before the panel, nothing was heard from the respondents again until he filed an action at the Federal High Court, Makurdi in February 2002.

On the other hand, the respondents alleged that the appellant admitted in writing that he stole the Omo. They also claimed that the appellant was issued with a letter of dismissal but refused to sign for it.

The appellant’s claims as per the writ of summons at pages 6 and 7 of the record were as follows:

1. “Declaration that the suspension of the plaintiff by letter no. R/UAM/JP/1315/VOL.1/40 dated 4th October 1993 in excess of 8 weeks and without pay in breach of Regulation 9(4) of the 1st defendant’s Provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS 01 – 05) is null and void.
2. Declaration that the failure of the defendants to come to a decision on the SUSPENSION within 8 weeks is contrary to the defendant’s Regulations (EUSS 01 – 05) and renders any decision, if any, thereafter null and void.
3. Declaration that the plaintiff has been in the employment of the 1st defendant since October 1993 and therefore entitled to the right, benefits and privileges including his total emoluments attached to the office of porter, deferred or accumulated leaves, promotions in line with what his mates are enjoying.
4. An order of the Court directing the defendants to pay all the arrears of monetary benefits due to the plaintiff from the date of the purported suspension in October 1993, forthwith.
5. Order of perpetual injunction restraining the defendants from interfering with the employment of the plaintiff except as provided for in the contract of service.

ALTERNATIVELY

1. Declaration that the suspension of the plaintiff by letter no, R/UAM/JP/1315/VOL.1/40 dated 4th October 1993 in excess of 8 weeks and without pay in breach of Regulation 9(4) of the 1st defendant’s Provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS 01 – 05) is null and void.
2. Declaration that the failure of the defendants to come to a decision on the SUSPENSION within 8 weeks is contrary to the defendant’s Regulations (EUSS 01 – 05) and renders any decision, if any, thereafter null and void.
3. Order of the court directing the defendants to pay to the plaintiff’s (sic) allowances from the time of the purported suspension until the plaintiff attains the age of 60 years.”

The parties filed and exchanged pleadings and the matter went to trial. The appellant, as plaintiff, testified and called one other witness. He tendered 4 exhibits: Exhibit A (letter of suspension), Exhibit B (letter of appointment), Exhibit C (appeal to Presidential Visitation Panel) and Exhibit D (acknowledgment of appeal letter). The respondents, as defendants, called two witnesses. They did not tender any exhibits. Thereafter both learned counsel addressed the court. In a considered judgment delivered on 5/7/2006 the learned trial judge held thus:

“Even though I have the view that the plaintiff took the Omo from the custody of the defendants, I hold the view that the suspension of the plaintiff in excess of 8 weeks is null and void contrary to the Provisional Regulations of the parties.

2, I declare that the failure of the defendants to come to a decision within 8 weeks is contrary to the defendants’ Regulations and renders any such decision, if any, null and void,

3. I cannot declare relief no. 3 because the plaintiff’s hands are not clean – the Omo he took cannot wash them clean.
4. The order here cannot be granted because the plaintiff allegedly committed a criminal offence of stealing. However, I order the defendants to pay to the plaintiff half of his salaries from the date of the aborted suspension till date of this judgment as damages for breach of chapter 9 paragraph 4 of the Provisional Regulations binding their contract of service. … The account department of the defendant shall write out the monetary entitlements as per the order granted damages for breach of chapter 9 paragraph 4 of the presidential (sic) regulation binding the plaintiff and the defendant. The money is only damages for breach, not allowances, not salaries nor terminal benefits.’

The appellant was aggrieved with this decision and filed this appeal.

In the appellant’s brief dated 10/9/07 and filed on 13/9/07 three issues were distilled for determination:

1. Whether the learned trial Judge erred in law when he refused to grant all the reliefs sought from it by the appellant in the circumstances of the case. (Ground 1)
2. Whether the learned trial Judge erred in law when he assumed criminal jurisdiction in a civil matter that appellant brought before him and in placing the burden of proving his innocence on appellant in criminal allegation sprang (sic) on the appellant at the course of defending the civil suit. (Ground 2)
3. Whether the decision of the learned trial Judge is sustainable by the evidence before the court, (Ground 3)

The respondents in their brief of argument dated and filed on 22/9/07 but deemed filed on 5/2/09, formulated a single issue for determination thus:

Whether the evidence before him amply supported the findings and holdings of the learned trial Judge on all the issues in controversy.

At the hearing of the appeal on 17/3/2011, Mr. S.O. Idikwu, learned counsel for the appellant, leading Mrs. A.A. Idikwu, E.O. Omenyi Esq., and Miss M.A. Popoola adopted and relied on the appellant’s brief and urged the court to allow the appeal. Mr. Timothy Dim, learned counsel for the respondents adopted and relied on the respondents’ brief and urged the court to dismiss the appeal.