O. Igbinoba V. Delta Steel Company Limited (1994)

LawGlobal-Hub Lead Judgment Report

EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.

The appellant who was the plaintiff in the Court below sued the respondent claiming the following reliefs:-

“1. An order declaring that the letter from the defendant dismissing him from the services of the company dated the 2nd day of February, 1984 is null and void and of no effect.

2. An order restoring him to his recently promoted position of Senior Safety Inspector.

3. An order of perpetual injunction restraining the defendant itself its agents and its privies from acting on the said letter.

4. Any other relief deem (sic) necessary by this Honourable Court.”

The case was heard at the High Court Warri before Odita J. who on 30th May, 1986 dismissed the appellant’s claim. Dissatisfied with the said decision, the appellant has appealed to this Court on four grounds of appeal. He has also filed his brief of argument in which he formulated 4 issues for determination. They are:

“ISSUE 1
Does exhibit C not make it mandatory for the respondent to constitute a Disciplinary Board/Committee to try erring officers? Even if not, did the respondent comply with exhibit C in all material particulars in the handling of appellant’s case?

ISSUE 2
Can it be said in the face of the evidence believed by the learned trial Judge, that the appellant was given an opportunity to defend himself as required by the rules of natural justice as also by exhibits C and D?

ISSUE 3
Has the respondent the last word on what act amounts to gross-misconduct?

ISSUE 4
Did the Court of trial correctly evaluate the evidence?

On issue No. 1, the appellant contends that exhibit C makes it mandatory for the respondent to constitute the Disciplinary Board/Committee to try an erring officer like the appellant. Exhibit C also makes it mandatory for a formal charge to be preferred against the appellant who should be called upon to defend himself. He argued that the word “may” used in Exhibit C imports a mandate as when used in a provision creating an obligation or issuing a directive. Counsel for the appellant argues that the trial Judge failed to resolve the issue whether “may” as used in Exhibit C was mandatory or permissive.
The Judge, counsel argued, assumed that it was permissive without stating how he came to that conclusion. Exhibit C lays down the procedure to be followed in determining the appointment of an erring staff. Counsel argues that to “thoroughly examine” the case of an erring staff necessarily imports a “personal hearing” of the staff concerned.

Counsel further argues that even if the constitution of the Board/Committee is discretionary, the court is competent to determine whether in any given case the discretion was judiciously exercised.

Arguing the appellant’s issue NO.2, it is contended on behalf of the appellant that he was not given an opportunity to defend himself as required by the rules of natural justice and Exhibits C and D. It is submitted that after Exhibit G found him to be a suspect, he ought to have been charged or queried and called upon to defend himself. After he had answered the charge or query, counsel submits, the appellant would be invited for hearing. Thus, counsel contends, the principle of audi alteram partem was breached.
Counsel refers to O.A.U. V. Onabanjo (1991) 5 NWLR (pt. 193) 549 at 557; Federal Polytechnique Mubi vs. Yusuf (1991) 1 NWLR (pt. 165) 81 at 85.