University of Agriculture, Makurdi V. Grace Eleyi Jack (2000)
LawGlobal-Hub Lead Judgment Report
MANGAJI, J.C.A.
This is an appeal from the ruling of Ogbole J. sitting in the High Court of Benue State, Makurdi Judicial Division wherein he granted all the reliefs sought by the respondent as applicant in suit No MHC/749M/94 on 22nd September, 1995. The appellant as respondent felt aggrieved by the decision wherein it appealed filing six grounds of appeal in the original notice and grounds of appeal. On 17th November, 1998 however, and with the leave of this court Mr. Kondoun of counsel for the respondent at the court below amended the original grounds of appeal reducing the grounds to four. Out of the four grounds, the first three were retained from the original grounds of appeal while the fourth was an addition.
The facts giving rise to the case before the court below remain wholly undisputed. The applicant was employed by the respondent (the Federal University of Agriculture, Makurdi) on 4th June, 1990 as a Clinic attendant on the University Salary Scale USS 2 step 1 on an annual salary of N4,620.00. She resumed work there until 7/5/91 when she was transferred to the Bursary Department of the University to serve as Stores Assistant on the same salary level and conditions of service. The applicant remained in that Department until 23/9/93 when she was served with a letter of suspension and an internal inquiry was set up by the respondent to determine the involvement of the applicant in some misconduct in relation to the collection and issuance of receipts for fees and other dues from students. The Panel of Inquiry found the applicant guilty of some “misconduct” and accordingly dismissed her from service on 17/2/94.
Not satisfied with her dismissal, the applicant filed an application under the Fundamental Rights (Enforcement Procedure) Rules, 1979 seeking for the following reliefs:-
“RELIEFS SOUGHT”
(a) An order quashing letters of suspension and dismissal with Ref Nos. R/UAM/JP/1315/Vol.1/41 of 23/9/93 and R/UAM/JP/1314/Vol.1/52 of 17/2/94 as the said letters were issued to the applicant in breach of the rule of natural justice, the Federal Universities of AGRICULTURE, Decree No 48 of 1992 and the conditions of service of junior staff of the respondent.
(b) An order reinstating the applicant to her appointment with respondent prior to her purported suspension/dismissal.
(c) An order that all the benefits accrued and accruing to the applicant including salary and other allowances of the applicant be computed and paid to her within two weeks from the date this Hon. court may deem fit to make its final order.
(d) An order that the respondent or any of its agents/servants shall not harass or otherwise render the applicant incapable of performing her duties and or securing her salary, allowances and benefits accrued and or accruing to her.
(e) N50,000.00 general damages for breach of contract of employment.
ALTERNATIVELY
An order that the applicant be paid N450, 359.58k representing what the applicant could have earned in the next 33 years at N13,647.26k per annum.”
The grounds upon which the reliefs were sought were incorporated in the application and they are couched thus:-
“GROUNDS UPON WHICH RELIEFS ARE SOUGHT
(i) Applicant was never accused of any wrong doing or confronted with any case of misconduct and afforded an opportunity of defending herself before she was purportedly suspended/dismissed from the employment of the respondent.
(ii) The procedure to be followed in removing any staff for misconduct as provided in Decree No. 48 of 1992, was not attempted let alone followed before applicant was removed.
(iii) Throughout the period that the applicant appeared before the Panel investigating irregular payments on 16/8/93 and 1/9/93 she appeared as a witness.
(iv) Applicant is entitled to remain in the employment of the respondent until she reaches the retiring age of 65 years.”
The application filed by the applicant was obviously preceded by a motion ex-parte seeking for leave to file same which was argued and granted by the court below. The application was accordingly served on the respondent who filed a counter-affidavit. The court below therefore heard the application and in a reserved ruling granted the applicant all the reliefs she sought excluding of course her alternative claim. It is that ruling that is being questioned in this appeal. I shall henceforth refer to the applicant as “the respondent”, while the respondent at the court below will be referred to as “the applicant”.
In accordance with the rules of this court parties filed and exchanged briefs of argument. The appellant formulated two issues for determination as arising from the four grounds of appeal. The two issues identified by the appellant are the following:-
Did the trial court have the jurisdiction to try the respondent’s suit?
Assuming without conceding, that the trial court had jurisdiction, are the court’s findings sustaining the alleged denial of right to fair hearing not perverse and insupportable having regard to the totality of the evidence before it.
On the other hand the two issues identified by the respondent are couched thus:-
(i) “Whether the jurisdiction of the court below was ousted by virtue of S.230 (1) of 1979 Constitution of Nigeria as amended by Decree No. 107 of 1993, at the time it heard and determined the case of the respondent having regard to:
(a) the nature of the reliefs sought;
(b) the authors of exhibits “C” and “D”;
(c) the proviso to S-230(1) of the 1979 Constitution as amended; and
(d) the date of accrual of the cause of action.
(ii) Whether the respondent’s fundamental right to fair hearing was infringed upon by her suspension and subsequent dismissal from office having regard to the totality of evidence before the court below.”
The issues identified by the appellant are rather curt and tart so much so that the questions that are proposed find little or no materials to give them the required explanation. The live matters to be addressed in the issues hardly reared their faces in the issues. On the other hand, the first issue identified by the respondent appears rather too prolix. It however incorporated all the ideas proposed to be discussed in the question. But the way issue No.1 has been drafted certainly leaves much to be desired. For what it is worth however, the issues identified by the respondent are more comprehensive than those identified by the appellant. What is remarkable is that the two sets of issues for determination are respectively similar. What the appellant alluded to in his first issue is what the respondent amplified in her first issue for determination. Equally, the appellant’s second issue is the same with the respondent’s second issue. In the event I shall adopt the two issues identified by the respondent in dealing with this appeal the prolixity in it notwithstanding in order to be seen to be addressing the appeal in the light of the perception of it by both learned counsel.
While being heard in arguing the appeal, both learned counsel made verbal submissions in amplification of their respective case. I now deal with the two issues as they were argued seriatim:-
ISSUE NO.1
Mr. Kondoun of counsel for the appellant pointed out that the issue of lack jurisdiction on the part of the court below was never raised before that court. He nevertheless submitted that the issue of jurisdiction being so fundamental can be raised at any time, even for the first time on appeal. He relied on the following cases for so submitting vide:- Management Enterprises Ltd. vs Otusanya (1987) 2 NWLR (Pt. 55) 179 at 188; Obikoya v. Registrar of Companies (1975) 4 S.C 31 and Okpaku v. Okpaku (1947) 12 WACA 137.
Learned counsel recalled that Decree No.107 of 1993 in schedule B thereof had amended section 230 of the 1979 Constitution by its section 230(1) (q) and (s) in which the Federal High Court was vested with exclusive jurisdiction over causes and matters arising inter alia from any action or proceeding for declaration or injunction affecting the validity of an executive or administrative action or decision of the Federal Government or any of its agencies. Learned counsel itemized the factors that determine whether a cause or matter falls within the exclusive jurisdiction of the Federal High Court to include:-
“(i) if the suit is against the Federal Government, or any of its agencies; and
(ii) if the suit is any action or proceedings for declaration or injunction; and
(iii) if the suit affects or questions the validity of an executive or administrative action or decision of the Federal Government, or any of its agencies.”
Continuing, learned counsel said the word ‘agency’ was nowhere defined in either Decree No.107 of 1993 or in the 1979 Constitution. He said neither is it defined in Decree No. 48 of 1992 which established the appellant. He therefore adopted the definition contained in the Black’s Law Dictionary, 6th Edition at P. 696. He submitted that going by the definition, the appellant is an agency of the Federal Government. He referred to S.1(1) of Decree No. 48 of 1992 which established the appellant and submitted that the latter was so established to perform governmental functions of providing higher education as a form of public service. He further referred to S.13 of the Decree and stressed that the President of Nigeria has been made a visitor to the appellant university. Withal he said it is Government that funds the appellant. He therefore submitted on the above premises that the appellant is an agency of the Federal Government as contemplated by Decree No. 107 of 1993.
Further in submissions learned counsel said that respondent’s reliefs sought before the court below and those eventually granted are declaratory and injunctive. He pointed out that the order of the learned trial Judge declaring both the suspension and dismissal of the respondent null and void is but declaratory. That the other order restraining the appellant or any of its agents from harassing or otherwise preventing the respondent from performing her duties cannot be anything other than being injunctive.
Still in argument, learned counsel pointed out that Decree No.107 of 1993 as well as Decree 48 of 1992 did not define the term “administrative actions”. He however said the definition of the term contained in page 45 of the Black’s Law Dictionary, 6th Edition readily fits in. He therefore submitted that matters of staff discipline involving suspension or dismissal as in the case on appeal, fall within the scope of administrative decisions envisaged in S.230 (1) (s) of Decree No.107 of 1993 and S.15 (1) of Decree 48 of 1992.
Learned counsel submitted that S.42 (1) of the 1979 Constitution has been radically amended by S.230 (1) (q) and (s) of Decree No.107 of 1993 such that the powers of the High Courts hitherto exercised in respect of suits against the Federal Government or any of its agencies have been ousted. He said having regard to the suit before the court below, that court clearly lacked the jurisdiction to entertain the suit as it did.”
Still on the first issue, learned counsel submitted that the law applicable to a suit is the law in existence when the suit was instituted. He referred to some cases in so submitting. Learned counsel was quick to point out that the respondent instituted her suit on 1/11/94 and that Decree No.107 of 1993 was made effective on 17/11/93. He therefore submitted that on the date the respondent instituted her suit section 42(1) of the 1979 Constitution had since ceased to be operational. That since by the operation of Decree No.107 of 1993, the court below had ceased to have any jurisdiction over the respondent’s suit, the court was in error to have entertained it. He urged on the above, that the proceedings of the court below be declared null and void and the suit accordingly struck out.
On his part, Mr. Okutepa of counsel for the respondent submitted that notwithstanding Decree No.107 of 1993, the Benue State High Court had jurisdiction to hear and determine the respondent’s suit. Learned counsel, from the on set submitted that the issue of jurisdiction can be raised at any time, even in the Supreme Court for the first time. He relied in so submitting on the case of the State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33; Learned counsel further submitted that the appellant is indeed an agency of the Federal Government in the field of education. He however submitted that before the provision of S.230 (1) of the 1979 Constitution as amended by Decree No.107 of 1993 can be called in aid, the complaint before the court must question the validity of the action of the agent of the Federal Government. He further submitted that where what is being questioned is not validity of an action or decision but the effect that valid action or decision had, or would have had or was capable of having on the rights of a citizen, the provision of S.230(1) (s) of the 1979 Constitution as amended will not apply. Learned counsel recalled the case of the respondent before the court below and submitted that he case was premised on the violative effects of Exhibits ‘C’ and ‘D’ on her fundamental rights to fair hearing as guaranteed by S.33 (1) and (4) of the 1979 Constitution, S.15(1) of Decree 48 of 1992 and the rule of natural justice expressed in the maxim audi alteram partem. He stressed that the respondent was accused of criminal offences leading to her suspension and subsequent dismissal. He referred to exhibits DAM 12 and 13. He submitted that in as much as the accusation was criminal in nature neither the appellant nor any other person or authority was competent to suspend/dismiss the respondent without her guilt determined by a competent criminal court. He referred to Garba v. UniMaid (1986) 1 NWLR (Pt.8) 550 at 584.
Still in submissions learned counsel emphasized that the respondent’s case before the court below was not for a declaration or injunction affecting the validity of exhibits “C” and “D” but to obtain redress against the issuance of the exhibits which adversely affected and/or were capable of adversely affecting her fundamental right to fair hearing. He further submitted that S.230(1) (s) of Decree No.107 of 1993 only prohibits State High Court from issuing declaratory judgment and injunctive order that have the effect of affecting the validity of any executive or administrative action or decision. He said the respondent’s reliefs were in the nature of orders and not declarations. He submitted that Decree No.107 of 1993 did not prohibit citizens from seeking redress against the Federal Government before State High Court is at all.
Still on the first issue for determination, learned counsel submitted without conceding that even if the respondent’s reliefs before the court below were declaratory or injunctive, the suspension/dismissal of the respondent had been done otherwise than in the true spirit of Decree 48 of 1992. Learned counsel submitted that the suspension and subsequent dismissal of the respondent not having been done by or on behalf of the council of the appellant, the whole actions taken were of no effect.
Learned counsel has an alternative submission to the one immediately above. It is that the proviso to section 230(1) of the 1979 as amended does save the jurisdiction of a State High Court to hear and determine a suit in the nature of the one instituted by the respondent. He submitted that although the proviso did not contain the phrase, “before a State High Court,” by the nature of a proviso it is an exception to the main rule and thus it necessarily is an exception to the exclusivity of the jurisdiction of the Federal High Court. He referred to Abasi v. State (1992) 8 NWLR (Pt.260) 383; (1992) 10 SCNJ 113; Eme v. State (1964) 1 All NLR 416 and Anya v. State (1965) NMLR 62 on the principle that a proviso, where used in an enactment shall be taken as an exception to the main rule. He therefore reasoned that the respondent was right in approaching the State High Court for redress.
Still on the question of jurisdiction learned counsel submitted contrary to the view held by learned counsel for appellant that jurisdiction is determined by the state of the law at the time the cause of action arose and not the law when the suit is filed in court. He cited four decided cases in support. He pointed out that the respondent was suspended from office on 23/9/93 when Decree No.107 of 1993 was not in force. Learned counsel however conceded that when the respondent was eventually issued with the letter of dismissal, Decree No. 107 of 1993 was very much in force. He urged this court to invoke its powers pursuant to S.16 of the Court of Appeal Act, 1976 to transfer the suit before the court below to the appropriate Federal High Court if it eventually finds that the court below had indeed no jurisdiction to have entertained the suit as it did.
Now let me start with two points in respect to which both sides are agreed and for which therefore no issue is joined. Both learned counsel are agreed that even though the appellant never raised the question of jurisdiction before the court below nevertheless the issue can be raised now, as indeed the appellant did, of course the law is settled that the issue of jurisdiction can be raised at anytime even in the Supreme Court for the first time. See State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33; (1992) 2 SCNJ 1 at 11; Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (Pt.179) 188; Obikoya v. The Registrar of Companies (1975) 4 SC 31. The other issue for which parties had no axe to grind relates to the status of the appellant. At page 3 of the respondent’s brief learned counsel conceded thus:”
We further concede that the University of Agriculture Makurdi is an agent of the Federal Government of Nigeria, in relation to education.”
There being no dissenting view on these two vital issues, I shall take them as settled.
Undoubtedly the Constitution (Suspension and Modification) Decree No.107 of 1993 had radically amended and modified a good portion of the 1979 Constitution that was then extant. The main concern of this appeal relates to the amendment effected in section 230(1) of the said Constitution affecting the jurisdiction of the Federal High Court. The Decree provides in section 230(1) (s) and the proviso thereto thus:-
“230 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from; (1)(s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies:
Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
Where therefore any action or proceeding falls within the category listed in paragraph(s) of section 230(1) and indeed all the preceding sub-paragraphs as well as paragraph 1A thereof, the Federal High Court shall exercise jurisdiction to the exclusion of any other court. Paragraph(s) of section 230 (1) requires the following for any action or proceeding to come under its operation viz:
(i) If the action or proceeding is brought against the Federal Government or any of its agencies;
(ii) If the action or proceeding is for declaration or injunction;
(iii) If the action or proceeding affects the validity or any executive or administrative action or decision of the Federal Government or any of its agencies.
The first ingredient was undoubtedly settled since both learned counsel submitted that the appellant is an agency of the Federal Government in the field of education and in the pursuit of which the facts giving rise to the judgment now being appealed against arose. Learned counsel for the appellant is of the firm view that the reliefs sought by the respondent at the court below were partly declaratory and partly injunctive. Learned counsel for the respondent submitted the contrary. He is of the view that the reliefs sought at the court below were in the nature of orders and not declarations. The reliefs sought by the respondent were reproduced at page 2 of this judgment. Looking at the first relief sought one cannot escape concluding that the Court below was invited to declare the letters of suspension and dismissal of the respondent respectively invalid and to quash same on that premise. The respondent’s relief (d) obviously sought for an injunction to restrain “the respondent or any of its agents/servants,” from harassing or otherwise rendering, “the applicant incapable of performing her duties and/or securing her salary, allowances and benefits accrued and/or accruing to her.” That the reliefs sought by the respondent were in the nature of “orders” is but an ingenious way of arguing a case that is capable of swaying an undiscerning mind. It must be realised that a decision of a court of law is by and large an order of the Court. For learned counsel to contend that the respondent only sought for orders in respect of the declaration and injunction he sought and not stricto sensu the latter is but only a futile attempt at distinguishing Jesus of Nazareth from Jesus the son of Mary, the mother of the Lord. By and large some of the reliefs sought by the respondent and which the court below granted were declaratory and injunctive which were directed against the appellant; an agency of the Federal Government.
Learned counsel for the appellant submits that what the respondent questioned before the court below was the administrative action of the appellant. The stand of learned counsel for respondent is rather ambivalent and outright irreconcilable. Learned counsel said at paragraph 4.05 of his page 5 of the respondent’s brief that:-
“We further submit that even if what the respondent was questioning in the lower court was the validity of exhibits, “C” and “D” (although not conceding) the State High Court still has jurisdiction to hear and determine the claims, notwithstanding the provision of the Decree”. (Italic supplied by me for emphasis)
Inspite of the above stand, learned counsel went to state at the last paragraph of page 5 to paragraph 1 of page 6 as follows:-
It is further submitted that even if the nature of the reliefs sought in the court below were declarative and injunctive, S.230(1) (s) of the 1979 Constitution will not apply to oust the jurisdiction of the Benue State High Court to hear and determine the claims of the respondent. This is because, for S.230 (1) (s) of the Constitution to apply, the action or decision complained of must be that of the Federal Government or any of its agencies. Was the suspension/dismissal of the respondent strictly speaking an action or decision of the appellant within the meaning and or intendment of Decree No. 48 of 1992? For a proper appreciation of the answer to the question hereof, we must critically examine the provisions of Decree No.48 of 1992, to see if the purported suspension or dismissal can in law be regarded as the action or decision of the appellant, the suspension/dismissal having not been done by the persons who are by law vested with powers to act for the appellant. By S.1(2) of Decree No.48 of 1992, the appellant herein is a juristic person. S.3 (1) (e) gives the appellant powers to make law for the welfare and discipline of members of the university. By S. 3(4) of the said Decree No. 48 of 1992, the powers of the appellant shall be exercised on its behalf by either (a) the Councilor (b) the Senate or (c) In any other manner that maybe authorised by statute. By S. 6 (1) of Decree 48 of 1992, the general control, superintendence of the policy, finance and the property of the appellant is vested in the Council. S. 15 (1) of the Decree 48 of 1992, vests in the Council of the appellant disciplinary powers over members of staff of the appellant. Clearly S.16(4) of Decree 48 of 1992 shows that the only authority that has a final say for any disciplinary case against any member of staff of the appellant is the Council. We refer also to S.15(2), (3) and (4) of Decree 48 of 1992.
We submit that for any disciplinary action or decision such as suspension, dismissal or termination to be regarded as the action or decision of the appellant, within the meaning of the provisions of Ss. 15 and 16 of Decree No. 48 of 1992, read together with S. 230(1) (s) of the Constitution, such action or decision must have been taken by the authorities or persons legally and lawfully empowered to act for and on behalf of the appellant as provided by Decree No. 48 of 1992. A close look at exhibits ‘c’ and ‘D’ shows that the suspension and dismissal of the respondent was done for and on behalf of the registrar. It is submitted that the registrar not being one of the officers vested with disciplinary powers by virtue of Decree No. 48 of 1992, his action or decision, in the absence of clear evidence that he was authorised to do so by the Council, cannot be regarded as action or decision of the appellant within the meaning of S. 230(1) of the Constitution. We further submit that the issue of jurisdiction here cannot ex-facie be decided without a finding being made whether the registrar was authorized by the Council. There must be evidence of such authorization, either by the minutes of the Councilor an instrument duly issued by the Council. It cannot be presumed that the Council indeed delegated the registrar. As we submitted earlier where a Decree appears to oust the jurisdiction of court it must be construed strictly and against the person who desires to take advantage of it. Appellant herein had not shown by evidence that the registrar was authorised by Council to issue exhibits ‘C’ and ‘D’ to the respondent. It is also submitted that even if the council indeed delegated the registrar, the registrar could not have further delegated A Mtiswenem to sign for him (the registrar), because it is trite law that a delegate cannot delegate.”
Whereas the respondent is not conceding that he is questioning the validity of the administrative action of the appellant as contained in exhibits “C” and “D”, he went on in no distant paragraph in his brief to question the validity of the Exhibits. Clearly therefore, the respondent had questioned the act or purported act of the appellant as contained in exhibits “C” and “D”. Thus the respondent’s action undoubtedly was one challenging the validity of the administrative action or decision of the appellant and to that extent falls within the category of “action or proceeding”, contemplated by S-230 (1) (s) of the 1979 Constitution as amended.
I should say that learned counsel for the respondent was right (whereas learned counsel for the appellant was palpably wrong) when he correctly stated the law that jurisdiction of court is determined by the state of the law at the time the cause of action arose and not the law when the suit is filed in court. See Uwaifo v. Attorney- General of Bendel State & 3 Ors (1983) 4 NCLR 1; Chief Adam & ors v. Attorney-General Bendel State & ors (1982) 3 NCLR 676 Mustapha v. Governor of Lagos State & Ors (1987) 2 NWLR (Pt. 58) 539; Lipede v. Sonekan (1995) 1 NWLR (pt.374) 668, (1995) 2 SCNJ 184 at 203. The respondent herein was served with the letter of suspension on 23rd September, 1993. It is thus correct that as at that date the Constitution (Suspension and Modification) Decree No. 107 of 1993 had not come into operation, it, having come into force on 17th November, 1993. However, as at 23/9/93 the cause of action in the suit before the court below had not completely accrued. This can be discerned from the action instituted by the respondent. The first relief sought by the respondent was, “an order quashing letter of suspension and dismissal with Ref Nos R/UAM/JP/1315/Vol.1/41 of23/9/93 and R/UAM/JP/1314/Vol.1/52/ of 17/2/94…” The facts upon which the respondent based her action only became complete on 17/2/94 when she was served with the letter of dismissal. That prompted her to apply under the Fundamental Rights Enforcement Procedure Rules, 1979 for redress. Obviously, since the respondent’s action challenged her dismissal by the letter dated 17/2/94, the facts upon which she relied to justify the reliefs she sought could not have completely accrued before that date. And by that date Decree 107 of 1993 had come into operation effectively ousting the jurisdiction of States High Courts as specified in section 230(1) thereof. Evidently the respondent questioned the act of the appellant before the High Court of Benue State which said act was carried out after Decree No. 107 1993 had come into force. Withal the said Decree had effectively amended sections 42(1) and 236(1) of the 1979 Constitution vesting the Federal High Court with exclusive jurisdiction to entertain actions and proceedings of the nature instituted by the respondent. My clear position therefore is that the respondent was wrong in instituting her action at the High Court of Benue State, and the said court was in error in assuming jurisdiction because it lacked any. The effect of S.230 (1) (s) of Decree No.107 of 1993 is to oust jurisdiction of the State High Courts and to vest jurisdiction in the Federal High Court in actions and proceedings in which the reliefs sought are for declaration or injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies. See Ali v. C.B.N (1997) 4 NWLR (Pt.498) 192 at 203.
There is however proviso to section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993. That proviso (quoted earlier on in this judgment) to my mind only restates the exclusivity of the jurisdiction of the Federal High Court even in actions for “damages, injunction or specific performance where the action is based on any enactment, law and equity.” The proviso by no means confers state High Courts with any jurisdiction in matters provided for under S.230 (1) of Decree No.107 of 1993. Rather it only expands the jurisdiction of the Federal High Court where the action against the Federal Government or any of its agencies is for damages, injunction or specific performance and the action is founded on some enactment, law or equity. The submission by learned counsel for the respondent inviting me to read, “State High Court”, as a necessary part of the proviso is absolutely without foundation.Learned counsel appears only to dree his own weird, as the Scots would say. In the event I answer the first issue in the affirmative.
I shall proceed to consider the second issue in spite of my answer to the first issue for determination. I am enjoined to do so having regard to the plethora of decided cases in which courts are obliged to consider all the issues raised for consideration especially in this court, in order not to prejudice the appeal in case it goes on further appeal to the Supreme Court and the resolution of the first issue for determination in this appeal is arrived at otherwise than answered herein. See Bayol v. Ahemba (1999) 10 NWLR (Pt.623)381 at 393 – 393: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 at 627; Jamgbadi v. Jamgbadi (1963) 2 SCNLR 311; Uor v. Loko (1988) 2 NWLR (Pt. 77) 430.
ISSUE 2
The issue posits the question whether the respondent’s fundamental right to fair hearing was infringed by her suspension and subsequent dismissal from office. In dealing with the issue learned counsel for the appellant submitted that it is not a requirement of S.33 of the 1979 Constitution that before an employer summarily dismisses his employee for misconduct involving dishonesty bordering on criminality, the employee must first be tried in a court law. He relied on Yusuf v. E U.B.N Plc. (1996) 6 NWLR (Pt.457) 632;(1996) 6 SCNJ 203 at 214 and Ransome -Kuti v. A.G. Fed. (1985) 2 NWLR (Pt.6) 211. He submitted that at common law and subject to any written terms of contract of employment and/or statutory provisions an employer reserves the right to dismiss his employee for misconduct without notice and without wages. Learned counsel relied on some foreign cases in so submitting. He stressed that the respondent was dismissed for misconduct simpliciter. That by the question and answer procedure employed, the respondent had ample opportunity to respond to the accusation levelled against her. Learned counsel recounted how the respondent falsified the official receipts entrusted to her resulting in the loss of N11,535.00 which accrued to the appellant. He said the respondent did agree that the loss was incurred as a result of her act in inviting a third party to assist her in issuing the receipts. He submitted that the respondent exhibited gross negligence in the performance of her duties. He relied on Chitty Contracts 24th Edn, and two foreign cases to press home his argument. He said the respondent was directly confronted with the wrong doing she was alleged to have committed and she, not only had opportunity to respond but did give her own side of the story. He submitted that the court below did not advert its mind to that piece of evidence when it found albeit wrongly, that the respondent was not accused of any wrong doing.
Further in submissions, learned counsel said the respondent was afforded fair hearing having regard to exhibits UAM 4 and UAM 1. He urged us to allow the appeal on the above score.
On his part learned Counsel for the respondent submitted that the suspension of the respondent and her subsequent dismissal were done in violation of S.33 (1) of the 1979 Constitution and S.15(1) of the Federal Universities of Agriculture Decree No. 48 of 1992 hereinafter to be referred to as “Decree No.48 of 1992” for convenience. He said the respondent was suspended and subsequently dismissed from her employment for misconduct without first being told of the nature of the misconduct. That the respondent appeared before the Panel investigating irregular payments only as witness. Learned counsel submitted that the appellant lacked the power to suspend and/or dismiss the respondent without her guilt first determined by a competent court of criminal jurisdiction. He referred to Garba v. UniMaid. (1986) 1 NWLR (Pt.18) 550 at 584.
Continuing, learned counsel submitted that the relationship between the appellant and the respondent was statutory and not merely master and servant under the common law. He referred to S.15 (1) of Decree No. 48 of 1992. After referring to Exhibits DAM 2, DAM 3 and DAM 4 learned Counsel submitted that the respondent was invited only as a witness. He relied on Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426; (1993) 7 SCNJ (Pt.11) 304 at 326 – 327. He said even the report presented by the Panel to the appellant was not made available to the respondent which in essence is also a denial of fair hearing. He urged us to dismiss the appeal as lacking merit.
I think only one issue will settle this question one way or the other: and that is whether the respondent was confronted during the sitting of the investigating Panel as a person accused of a crime or that she was simply invited as a witness. If indeed, she was only invited as a witness, then she could not at the end of the day be found guilty without charging her of specific misdeed for which notice should be given her. In other words, if she was accused of some offence, the offence she was so accused of should be brought to her notice and her reaction received in order to satisfy the constitutional provision on fundamental right to fair hearing as guaranteed by S. 33 (1) & (4) of the 1979 Constitution. The appellant’s case is built around exhibits DAM 1, DAM 2, DAM 3 and DAM 4. Exhibit DAM 1 is a letter of invitation served on the respondent to appear before the Junior Staff Disciplinary Committee to testify in a case of alleged misappropriation of the appellant’s funds amounting to N12,020.00 Exhibit DAM 2 is the proceedings of the investigating Panel on irregular payments held on 6th August, 1993 where some people testified as witnesses including of course the respondent. Exhibit DAM 3 is yet another preceding of the investigating Panel showing minutes of the 6th meeting convened on 24th August, 1993 wherein witnesses were interviewed including the respondent. In the same vein Exhibit DAM 4 is the minutes of 26th August, 1993. In all these exhibits the respondent was invited not as an accused but as a witness. Thus she was never once confronted directly accused of a crime or misconduct except as matters arising from the testimony of some witnesses or the respondent herself. Obviously for a witness to be turned an accused, notice of the accusation has to be specifically made known to her.
It should be noted that the report of the Panel ought to form the basis of any accusation that might be levelled against anyone. The report however was not served on the respondent to afford her opportunity to respond. In the event the misconduct for which the respondent was dismissed remains unknown to her even if by the testimony of witnesses given during the investigating Panel’s sittings (including the respondent as a witness) it would have been clear to her that her act had resulted in economic adversity to the appellant and is obviously criminal in nature. But the fact remains as it is as the respondent was not formally charged for any misconduct especially the one disclosed from the evidence in the panel’s sittings, which appear criminal in nature. Not having been confronted with any charge bordering on misconduct therefore, the respondent was not afforded opportunity to be heard before she was dismissed. It would have been a different thing altogether if the respondent was dismissed under chapter 9 of the Provisional Regulations Governing the Conditions of Service of Junior Staff (EUSS B 01-05) otherwise than for a misconduct bordering on criminal offence without the offence first made known to the respondent and thus affording her opportunity to respond.
The age-long principle which requires an accused person to be afforded an opportunity to be heard before a decision is taken against him forms a fundamental pillar in our legal system. It has been further strengthened in that it has become a constitutional provision. Section 33(1) of the 1979 Constitution has guaranteed to citizens the right to fair hearing. It thus ceases to be an ordinary law by its inclusion in the Constitution, in which event it stands above the ordinary laws of the land. Ransome-Kuti v. A. G. Fed (1985) 2 NWLR (Pt.6) 211. Consequently, strict compliance with the said constitutional provision cannot be overemphasized. Indeed it cannot be compromised. It does appear clear to me that even though the appellant had a good cause to employ some disciplinary measure against the respondent having regard to the gross misconduct exhibited by her which prima-facie is criminal in nature, there was the need for the appellant to have observed all the necessary guarantees constitutionally provided to ensure that the respondent was afforded the right of fair hearing. Since she was interviewed as a witness as disclosed in exhibits UAM 2, UAM 3, and UAM 4, the need arose for the findings of the investigating Panel constituted by the appellant to be brought to the attention of the respondent as an accused in order to afford her the right to be heard before any disciplinary measure is taken against her. If, as things appear, she was dismissed because of the fraud she was said to have committed in the cause of her employment without specific criminal charges made known to her, the appellant would appear to be acting otherwise than in conformity with S.33 (1) of the 1979 Constitution. I am however not oblivious of the submission of learned counsel for the appellant that the respondent was dismissed for gross misconduct simpliciter. If her said dismissal was simply for gross misconduct then the disciplinary measure taken against her is neither here nor there for the obvious reason that the gross misconduct must be of an ascertained behaviour. The reprehensible behaviour in the case of the respondent obviously related to the allegation of falsification of receipts belonging to the appellant and the consequent misappropriation of N12,020.0 by the respondent. That is very clear form exhibits UAM 1, UAM 2, UAM 3, and UAM 4 any disciplinary measure that was contemplated which related to the criminal offences levelled against the respondent therefore must conform with the constitutional right of fair hearing. In this case caution was not exercised by making the criminal charges disclosed against the respondent made known to her in order to afford her the opportunity to respond. That in my judgment is a fundamental vice.
I now focus my attention to the submission of learned counsel for the respondent. Learned counsel is not absolutely correct in his submission that once an accusation bordering on criminality is made against a person. No disciplinary action can be taken against him without his case first tried and his guilt determined by a criminal court. The case of Garba v. Unimaid (supra) is no authority for such a proposition now given the Supreme Court’s decision in Yusuf v. UBN (Nig) Ltd (1996) 6 NWLR (Pt. 457) 632 at 644-645. Wali JSC in the leading Judgment put it clearly, most eloquently and admirably thus:-
“It is not necessary, not is it a requirement under S.33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality.
To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to enable him make a representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.
There is no doubting, from the above decision that the Supreme Court did not lay it down in Garba v. Unimaid supra as an immutable principle that once there is a criminal allegation in the act or conduct of an employee, the employer will have no power to exercise disciplinary measure on him unless his guilt or otherwise is determined in a criminal court. Far from it, all that the case lays is the necessity to preserve the constitutional right of fair hearing. It is by no means an authority which seeks to gag the power of the employer to sanitise its work force by removing undesirable elements in order to enhance the efficiency of its organization by putting in difficult if not impossible conditions by employing criminal jurisprudence in order to present the employer with a fait accompli. The concern of the Supreme Court obviously is the practicalisation of the principle of fair hearing before any action is taken against a person accused of a criminal act. See also Adeko v. Ijebu-Ode District Council (1962) 1 SCNLR 349, (1962) 1 All NLR 220 and Dongtoe v. C.S.C., Plateau State (1995) 7 NWLR (Pt.408) 448 which entrench the view that it is not the law that summary dismissal is wrongful where a person accused of a criminal act is not prosecuted and convicted in a court of law. See further the position of the Supreme Court in Fed. Civil Service Commission V. Laoye (1989) 2 NWLR (Pt.106) 652 Per Eso JSC. The argument of Learned Counsel for the appellant follows the heels of the eclipse of what appeared to be a very definite stand of the law as propounded in Garba v. Unimaid (1986) 1 NWLR (Pt.18) 550. The second issue for determination must be resolved in the favour of the respondent and I so resolve it.
I have earlier on answered the first issue for determination in the affirmative. My answer was simply that the High Court of Benue State lacked the jurisdiction to entertain the application filed before it and the learned trial Judge was therefore in clear error to have assumer jurisdiction in the matter.
The jurisdiction of the Benue State High Court was clearly ousted by S 230(1) (s) of the Constitution (Suspension and Modification) Decree No. 107 of 1993. That being so the proceedings conducted by the learned trial Judge are absolutely null and void and of no effect whatsoever. For the above reason therefore, this appeal must succeed. It is accordingly allowed. Suit No MHC/749M/94 filed before the court below and the proceedings thereto including the ruling of the Hon. Justice Ogbole dated 22nd September, 1995 are hereby set aside. Having declared that suit void on ground of want of jurisdiction I am loathe to ordering the transfer of the suit to any court of competent jurisdiction under S.16 of the Court of Appeal Act, 1976 as urged on us by learned counsel for respondent since that would tantamount to the use of newfangled jurisdiction.
Having regard to the resolution of the two issues for determination however I shall make no order as to costs
Other Citations: (2000)LCN/0785(CA)