Mohammed Jibrin V. Nigerian Electric Power Authority (2003)
LawGlobal-Hub Lead Judgment Report
ZAINAB ADAMU BULKACHUWA, J.C.A.
The appellant as plaintiff before the Federal High Court, Abuja, initiated this action by a writ of summons, filed on the 6th September, 1995 and vide his amended statement of claim filed on the 1st of April, 1996, claimed the following reliefs:
1. A declaration that the purported dismissal of the plaintiff from the service of the Nigerian Electric Power Authority by the defendant is illegal, null and void.
2. A declaration that the plaintiff is still in the employment of the Nigerian Electric Power Authority.
3. An order of the court compelling the defendant to reinstate the plaintiff to his status as an employee of the defendant without prejudice to his entitlements and promotions which might have accrued to him during the period of his dismissal.
4. An order of the court compelling the defendant to pay all the plaintiff’s salary and the entitlements in arrears from July, 1994 when his salary was stopped to February, 1995 when he was purportedly dismissed by the defendant.
5. An order of injunction restraining the defendant, his servants, agents, etc, from further interfering with the plaintiffs performance of his duties as a civil servant.
Pleadings were filed and exchanged by the parties and trial started before Senlong, J. Before the determination of the case, however, Senlong, J. was transferred and the case was tried de-novo before Auta, J. and a fresh trial started on the 20th day of May, 1999. The plaintiff testified for himself and three witnesses testified for the defendant, and the trial court in determining the matter, dismissed the plaintiff’s claim who being dissatisfied, has now appealed to this court on these grounds of appeal:
Ground of appeal
1. The learned trial Judge erred in law, when he held that the adhoc committee upon whose findings plaintiff appointment was terminated was merely an investigatory and exploratory body and need not abide by the rules of fair hearing and natural justice as embodied in the staff regulation rules.
Particulars of error
Chapter 3 of the staff Rules deals with discipline of staff. Section 33:02 of this chapter, deals with dismissal of staff. Section 33: 16 of the Rules made provision for summary dismissal for absence of duty and the defendant refused to exercise that right, but still decided to give the plaintiff a hearing under section 33:4(1) and so the respondent ought to safeguard that the disciplinary rules regarding the conduct of that ad-hoc committee as enshrined in the Rules has to be complied with.
2. The learned trial Judge misdirected himself as to the facts and evidence before him when he held as follows:
“The plaintiff admitted that he has been absent from his duty post when he engaged himself playing football.”
Particular of errors
There was no strong evidence before the court to support the above assertion of the Honourable Judge.
Throughout the judgment, the Honourable Judge did not pronounce on exhs. D, E, F, G, H, J, K and L, as it affirms the fact that plaintiff has been very regular in his job throughout the period complained of in his query.
3. The learned trial Judge erred in law and reached a very wrong conclusion when he held as follows: “Therefore based on the provisions of Articles 35 of exh. B, the plaintiff is liable to be dismissed from his job without any formality if the defendant constituted a panel to investigate him before they terminated his appointment as far as this court is concerned, it is not a ground to challenge the termination of his appointment that he was not given the opportunity to cross-examine the people who testified before the panel.
Particulars of error
Once the defendant failed to exercise the right to dismiss the plaintiff summarily under Rules 33.2 of exh. B, they were bound to comply with the provision of Rules 33.05 to allow the plaintiff be present and to cross-examine the witness who testified against him. This right, defendant admitted they denied the plaintiff.
The findings of the ad-hoc committee was carried out in negation of the requirement of natural justice and the rules of fair hearing.
4. The learned trial Judge attached undue weight to the piece of evidence that plaintiff was defendant’s goalkeeper and training with the team during the football season.
Having held as follows: ‘As stated by the defendant counsel and I agreed with him that the ad-hoc committee was merely an investigating and exploratory body, the learned trial Judge therefore, erred when he introduced extraneous consideration which has no relevance to the issues calling for determination before him when he later concluded in court as follows: “The plaintiff from his conduct in court and the evidence in court gives the court the perfect picture of a person who doesn’t know what working with the government or government parastatal entails.”
Particulars of error
If the plaintiff has a good case against the defendant, it is wrong for the learned Judge to deprive him of judgment because of his personal assessment of the plaintiff demeanors in court. That the learned trial Judge erred when he made no pronouncement on paragraph 32(4) of the plaintiff’s statement of claim.
5. The learned trial Judge erred when he fails to make an order on claim 32(4) of the relief contained in the plaintiff’s statement of claim as plaintiff’s salary was stopped on July, 1994, but was dismissed on 13th February, 1995. Plaintiff is entitled to his salary between July and February 13th, 1995.
6. The whole judgment is against the weight of evidence.
The appellant had identified the following issues for the determination of the appeal:
1. Whether the learned trial Judge was right when it held that the adhoc committee upon whose findings plaintiff’s appointment was terminated was merely an investigating and exploratory body and as such need not comply with section 33.01 (1-3) of the staff Rules and Regulation (exh. B) which incorporates the constitutional provision of fair hearing and natural justice in the performance of their duties.
2. Whether it was right for the Judge to have held that the plaintiff was absent from his duty post for the period of 3/8/92 – 14/7/94 (2 years) in the face of exhs. ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘J’, ‘K’ and ‘L’ plus the fact that plaintiff received his monthly salary, till July, 1994.
3. Whether it was right for the learned trial Judge not to have granted claim 32(4) of the plaintiff’s statement of claim when same was never challenged by the defendant.
The respondent disagrees with the issues as formulated by the appellant and is of the view that the real issues arising from the grounds of appeal are as follows:
1. Whether the dismissal of the appellant was validly and lawfully done in accordance with the condition of service tendered and marked as exhibit ‘B’. (Ground 3)
2. Whether the plaintiff/appellant discharged the evidential burden of proof placed on him by law to warrant the learned trial Judge finding in his favour. (Grounds 2 and 6)
3. Whether the respondent in enforcing the provisions of exhibit B (the condition of service) breached any of the principle of fair hearing thereby breaching the appellant’s constitutional right to fair hearing.
As the issues raised by the appellant covers all the grounds of appeal, I will determine this appeal on the issues as raised by the appellant.
At the hearing of this appeal, only the respondent counsel addressed the court and the court used its powers under Order 6 rule (5) of the Court of Appeal Rules to treat the appellant’s brief and reply brief which had been duly filed as having been argued. The appellant counsel arrived shortly thereafter and apologized for his late arrival, which the court accepted.
The respondent in his brief of argument raised a preliminary objection on two grounds which are:
1) that grounds of appeal No.3 and 4 are incompetent for being vague, argumentative and lacking in precision;
2) that despite the manner grounds 1 and 2 were couched, they are grounds of mixed law and facts and are incompetent as no leave of the Court of Appeal was obtained.
He submitted on ground one of the preliminary objection that grounds 3 and 4 are incompetent for being vague and lacking in precision and urged us to strike them out putting reliance on the following cases; Governor of Kwara State & 2 Ors. v. Mr. Joseph Alabi Eyitayo (1997) 2 NWLR (Pt.485) 118; Alhaji Lawal Mohammed v. Patrick O. Nwobodo (2000) FWLR (Pt.15) 2546; Soetan v. Ogunwo (1975) 6 SC 67.
On the second ground of the preliminary objection, the respondent submits that grounds 1 and 2 are grounds of mixed law and facts and can only be competent for argument with the leave of the court. That the appellant having not sought and obtained the requisite leave the grounds become incompetent and ought to be struck out, for this submission, he relied on Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555; and Cross River State Newspapers v. Oni (1995) 1 NWLR (Pt.371) 270.
In reply, the appellant submitted on grounds 3 and 4 that the said grounds are not vague and argumentative and on grounds 1 and 2 submitted that no leave is required to appeal against a final decision of a High Court to the Court of Appeal, whether on grounds of law or of fact or of mixed law and fact. And further argued that on the whole preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of an appeal, he puts reliance on the case of NEPA v. Joseph Ango (2001) 15 NWLR (Pt. 737) 627, (2001) 17 WRN 142 and urged us to dismiss the preliminary objection as being incompetent. Order 3 rule 2 sub-rules 2, 3, 4, 6 and 7 of the Court of Appeal Rules, 2002, provides as follows:
“2(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection shall be clearly stated.
3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.
6) Notwithstanding the foregoing provisions, the court in deciding the appeal shall not be confined to the grounds set forth by the appellant;
Provided that the court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant, unless the respondent has had sufficient opportunity of contesting the case on that ground.
7) The court shall have the power to strike out a notice of appeal, when an appeal is not competent or for any other sufficient reason.”
The contention of the respondent on grounds 3 and 4 is that they are vague and lacking in precision and therefore not in conformity with the above provisions.
Generally, in filing a ground of appeal, an appellant is giving notice to the other party of the part of the decision he is complaining against and in doing so, he must give sufficient information of the complaint and the issues that will arise before the appellate court hence the grounds, and its particulars. See Aderoumnu & Anor. v. Olowu (2000) 4 NWLR (Pt. 652) 253, (2000) 2 SCNJ 480 particularly, at 191 where Ayoola, JSC said:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, not with standing that it did not conform to a particular form.”
See also Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372, (2001) 2 SC 26.
In the instant case, the 2 grounds disclose reasonable ground such that the respondent is given sufficient notice on which the appellant’s complain will be based upon. They are therefore competent. Similarly, the objection on grounds one and two cannot stand for as the appellant has pointed out the appeal is an appeal against a final decision of the trial court for which no leave is required.
In any case, the Supreme Court had in Aderounmu & Anor. v. Olowu (supra) decided that a ground of appeal alleging error in law and misdirection in fact, is not thereby incompetent if it otherwise complies with the rules of the court and discloses a reasonable ground such that the appellant is given sufficient notice of the precise nature of the complaint.
The preliminary objection on the two grounds is accordingly overruled and dismissed.
It is pertinent at this stage to state the facts that gave rise to this appeal for a better understanding of the issues raised therein.
The appellant was employed as a radio operator on 21/1/85, by the respondent and worked in their office located at Wuse, Zone 6, Abuja. He was transferred to Abaji in 1992, but complained that the Abaji office had no radio with which he could work with. He was at the same time the goalkeeper of the NEPA football team. Between 1992 to 13/2/95, when the appellant was dismissed from his employment with NEPA, he was redundant and only played football without the permission of his service head at Abaji.
He was issued with querries and warnings during that period which he replied to. In July, 1994, he was suspended from duty and it was during that period that the respondent set up an ad-hoc disciplinary and investigatory committee to look into the issue of the appellant’s absenteeism.
The committee sat and recommended that the appellant be dismissed and the appellant was thus, dismissed. He initiated the action before the lower court his main complaint being that he was not given a fair hearing before the committee as witnesses did not testify in his presence nor was he given a chance to cross-examine them.
He testified for himself before the trial court and the defence called three witnesses at the end of the trial the court dismissed the appellant’s claim before it hence this appeal.
As the issues as formulated by the appellant covers all the grounds of appeal, I will determine the appeal on the issues raise by the appellant. I will similarly, treat issues 1 and 2 together and the 3rd issue on its own.
Issues 1 and 2:
The appellant contends on this issue that in an action, where the plaintiff or an employee is alleging denial of fair hearing, the basic issue calling for consideration is not whether the allegation or grievances against the employee calling for investigation are true or did take place but whether the adverse party was given the opportunity by the party in position to act to state his own side of the story and was present to listen and cross-examine his accusers so as to test the veracity of their allegations or claims as enshrined in the rules and regulations of the employer.
That under rules 35.01 of exhibit B, the defendant can summarily dismiss the plaintiff for absence from duty without giving him any hearing. Where they however chose not to exercise the right of summary dismissal and decided to hear from an employee, the hearing procedure must comply with the provisions of section 4 of Chapter 3 of exhibit B and once this is done and the employee is called upon to appear before a committee a determination of the employees civil rights and obligations thereby arises and the committee must comply with the rules as provided for in section 34.01 of exhibit B which ensures that the plaintiff is given the opportunity to listen to his accusers and given the chance to cross examine them.
That the plaintiff had in his pleadings and testimony shown that he was neither given the opportunity to listen to nor cross examine those that testified against him before the ad-hoc committee upon whose findings his dismissal was based upon.
That the failure of the ad-hoc committee to abide by the rules of fair hearing renders its findings and report null and void and of no effect.
The respondent on the two issues submits that the relationship between the appellant and the respondent is that of master and servant and the conditions of their relationship is as contained in exhibit B. The respondent can therefore not determine the appellant’s employment, but in accordance with the terms of employment. That the ad-hoc committee set up by the respondent was in line with the provisions of exhibit B and it was to look into the allegation of absenteeism leveled against the appellant and the appellant did appear before the committee and gave evidence. It is their contention that all that the committee was required to do not being a tribunal or a judicial committee was to hear both sides, having done so it has not infringed the right to fair hearing of the appellant contending further that once the employment of the appellant was determined in accordance with the requirement of the condition of service there cannot be a violation of his right to fair hearing.
From the pleadings of the parties and the evidence before the court as adduced by the parties the following facts are not in dispute:
1. The appellant was appointed by the respondent on 20th January, 1988.
2. The appellant’s appointment was governed by the Nigerian Electric Power Authority condition of service 1978.
3. The appellant served as a radio operator at Wuse, Zone 6, Abuja after his appointment.
4. The appellant was on 17th August, 1992, posted on transfer to the Abaji office of the respondent.
5. The appellant was not at his duty post at Abaji, during the period of 17th August, 1992 – 11/7/94, when his salary was stopped for being absent from his duty post -within the said period the appellant was querried and warned by the respondent.
6. During the above period, the appellant, who was said to be playing football was promoted and received normal salary increments from the respondent.
7. In December, 1994, the respondent set up an ad-hoc committee to look into the appellant’s absenteeism from his duty post. The appellant and three other officers of the respondent including his station head testified before the committee.
8. The ad-hoc committee in its report recommended the dismissal of the appellant.
9. The appellant was dismissed from the services of the respondent by a letter dated 13th February, 1995.
Now, exh. B the Nigerian Electric Power Authority Condition of Service 1978, which governs the condition of service of the appellant with the respondent which was admitted before the trial court deals with the way and manner a staff could be disciplined. By section 35.01 thereof, the respondent can summarily dismiss the appellant for absence from duty without giving him any hearing. It is the contention of the appellant however, that the respondent having opted to try the appellant before the ad-hoc committee, he should have been given the chance to face and cross-examine his accusers as provided for in section 34.01(3) of the conditions of service rules of the respondent.
In exhibit R, which was the minutes of the ad-hoc committee set up to investigate the allegation of the appellant absenteeism for a period of two years, the appellant while testifying before the committee did admit that he was absent from his duty post for the said period. He also, admitted that he was playing football and also admitted that he was not officially released from his duty post for the said period.
It is trite that a body whether judicial, quasi judicial, administrative or executive in inception acts judicially when determining the civil rights and obligations of a person in finding him liable of a fault, the body must give him a hearing before any issue can be properly decided. See Baba v. NCATC (1991) 5 NWLR (Pt.192) 388; Olatubosun v. NISER COUNCIL (1988) 3 NWLR (Pt.80) 52. That is the intendment of section 36(1) of the 1999 Constitution and is also the essence of fair hearing as a constitutional right, for in such cases, the hearing body must be seen to have observed all the implications of fair hearing.
The circumstances of this case however are unique. The actions of the appellant justified his summary dismissal by the respondent. Even though, the respondent had opted to investigate him through an ad-hoc committee and then did not allow him to face or cross examine his accusers, he had admitted to the allegation of being absent from his duty post for two years without justification thus justifying the report of the committee recommending his dismissal.
For the committee could have equally found him guilty on his admission without having recourse to call the other witnesses. The allegation of the appellant that he was not accorded fair hearing by the ad-hoc committee can therefore not stand.
The trial Judge in the circumstances of this case was right to have held thus:
“The plaintiff admitted that he had been absent from his duty post, when he engaged himself in playing football. He did not tender any written permission exempting him from doing his job as a radio operator. He did not call any body to testify that it was as a result of being a goalkeeper, he was exempted from going to the office. He can therefore, not explain his absence from duty. The letter of dismissal clearly states that he was dismissed on the ground that he has been absent from his duty post…”
Issue 3:
It is submitted for the appellant that in the appellant’s statement of claim before the lower court the appellant specifically claimed.
“An order of the court compelling the defendant to pay all the plaintiff salary and entitlement in arrears from July, 1994, when his salary was stopped to February, 1995, when he was purportedly dismissed by the defendant.”
That this averment was never challenged by the defendant in their pleadings nor was it denied in the evidence of the defendant and the trial Judge negligently, refused to grant the claim in his final judgment and urged us to grant the said claim.
Any party who claims and desires that judgment be given for him on that claim on any legal right or liability, which is dependent on existing facts which he avers must prove that those facts exist. Where he fails to do so, then he will not be entitled to the relief sought. See Section 135 Evidence Act; Abiodun v. Adehin (1962) 2 SCNLR 305; Tewogbade v. Akande (1968) NMLR 404.
The appellant in the instant case is claiming his salary and entitlement for the period he was in suspension prior to his dismissal – July 1994 to Feb.1995. This is a claim in special damages in the sense that full particulars must be given by him as to his salary and other entitlement and the total accrued salary due to him for the period he is claiming and any other facts that may be necessary to enable the court calculate accurately as it can the amount due to the appellant. See Benin Rubber Co-operative Marketing Union Ltd. v. Ojo (1997) 9 NWLR (Pt.521) 388; Gbolade v. Oladejo (1994) 8 NWLR (Pt.362) 281; Oshinjinrin v. Elias (1970) 1 All NLR 153.
Special damages must be specifically pleaded and strictly proved – Obot v. Akpan (1998) 4 NWLR (Pt.546) 409. The appellant has failed to prove that particular claim he is therefore not entitled to judgment on it.
In as much as the claim is contained in his amended statement of claim. While he was testifying before the court, the appellant failed to give particulars in justification.
It is trite that where a party fails or refuses to adduce evidence in support of any of the averment in his pleadings or claim such claims are deemed to have been abandoned – Mobil Produce (Nig.) Ltd. v. Umenweke (2002) 9 NWLR (Pt.773) 543.
The appellant having adduced no evidence on the claim, is not entitled to the relief sought. This issue must also be resolved against the appellant.
All issues having been resolved against the appellant, the appeal must fail for lacking in merit.
It is hereby, dismissed with N5,000.00 costs to the respondent.
Other Citations: (2003)LCN/1388(CA)