University Of Calabar V. Frampton Godwin Akpanika (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

On the 17th day of October, 2002, the plaintiff/Respondent took out a writ of summons at the Federal High court, Calabar claiming against the Defendant/Appellant the following reliefs:-

“1. A declaration that the purported dismissal of the plaintiff from the service of the Defendant contained in a letter Reference Number UC/EST/JO1:00702 dated 12th August, 2002 is in breach of his constitutional right, wrongful, unlawful, irregular, null and void and of no effect whatsoever.

2. An Order of the Court setting aside the said letter.
3. A declaration that the plaintiff is still in the employment of the defendant and entitled to all his dues in form of salaries, allowances and emoluments from the purported date of dismissal (12th August, 2002) until he attains the age of retirement as prescribed by law or until he is otherwise retired as lawfully provided.”

The Writ of Summons was accompanied with a Statement of Claim. The defendant who earlier filed a Statement of Defence later withdrew same and to defend the action by relying on facts as averred by the Plaintiff in his Statement of Claim. The plaintiff testified in person and tendered Exhs. ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’. He denied the allegation of stealing which was labeled against him. The learned trial Judge considered the evidence adduced by the plaintiff and entered judgment in his favour on 14/11/2007 and declared as follows:

“1. That the purported dismissal of the plaintiff from the services of the defendant contained in a letter with reference number UC/EST/JO1:

00772 dated 12th August, 2002 is null, void and of no effect.

2. That the Plaintiff is still in the employment of the defendant and is entitled to his salaries, allowances and all other entitlements incidental to his employment with the defendant from the date of his purported dismissal.”

The Court ordered for the reinstatement of the Plaintiff to his employment and payment of his salaries, allowances and other entitlements due to him from the date of his purported dismissal. Dissatisfied with this judgment, the defendant filed a Notice of Appeal dated 13th February, 2008 containing three grounds of appeal from which the following two issues were distilled:-

1. Whether the learned trial Judge was right in nullifying the dismissal of the Plaintiff from the employment of the Defendant (Distilled from Grounds 1 and 2)
2. whether the learned trial Judge was right to have ordered reinstatement of the plaintiff (Distilled from Grounds 3).

The respondent also formulated two issues for determination as follows:

1. Whether the disciplinary powers contained in the condition of service of the Appellant Exh. ‘F’, can lawfully be exercised to try and penalize a staff accused of stealing a third parties (sic) property.
2. whether the learned trial Judge was right in ordering the reinstatement of the Respondent.

Learned Counsel for the Appellant argued that the Respondent was dismissed for gross misconduct or behaviour unbecoming of a security personnel. That being the case, the only duty placed on the Appellant was to afford the Respondent adequate opportunity to explain or defend himself and this was done through the query (Exh. ‘B’) issued to him and his reply which was tendered as Exh. ‘D’. He was equally given the opportunity to defend himself before the Disciplinary Panel and it was after this that he was dismissed from service. He submitted that the dismissal cannot be faulted since it was done in accordance with the University’s Regulations and the dictates of fair hearing as enshrined in Section 36 of the 1999 Constitution. He said that the Supreme Court held in ARINZE v. FIRST BANK OF NIG. LTD. (2004) 1 NWLR (pt.888) 663 at 665 that –

“In statutory employment as well as in private, where the accusation against such employee is of gross misconduct, involving dishonesty bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself ……..”

It was submitted on behalf of the Respondent that from the query issued it is obvious that the alleged complaint bordered on stealing items enumerated in paragraph 1 of Exh. ‘E’ valued at N900.00. These items were not the properties of the Appellant but were said to belong to a third party operating a stall within the University. Despite his denial the Appellant went ahead to dismiss him for stealing the said items. Learned counsel argued that the allegation of stealing is a grave criminal offence especially if it is against a security personnel as the Respondent. ‘He contended that once it is denied by the suspect, the duty rests with the police to properly investigate same and prosecute where necessary since the property allegedly stolen was not that of the appellant but a third party.

This he said would have eliminated the element of planned bias against the Respondent. The allegation should not have been dealt with by a disciplinary committee. He relied on the following cases to submit that where a person is accused of committing a criminal offence, he must be taken before a court of law or judicial tribunal to determine the criminal charge against him and should not be dealt with by a disciplinary tribunal: OKIKE v. L.P.D.C. (2005) All FWLR (Pt. 274); SOFEKUN v. NWAUWA (1997) 2 SCNJ 60; OKOCHA v CIVIL SERVICE COMMISSION EDO STATE (2004) FWLR (Pt. 190) 1304. He sought to draw a distinction between this case and that of ARINZE v FIRST BANK OF NIG. LTD. supra which was relied on by learned counsel for the Appellant by maintaining that the particulars or property over which Mr. Arinze’s dismissal was based was that of his employer and not that of a third party.

I do not accept the postulation by learned counsel for the respondent that if a person is accused of stealing and the property allegedly stolen belongs to the employer, he can be proceeded against by a disciplinary tribunal. I fail to fathom the difference between the employer’s property and that of a third party. As a security personnel, he should be able to safeguard both his employer’s property and that of a third party who is licenced to stay on the employer’s premises. After all no employer will be willing to employ a security personnel who has had a dubious record from a former employment. If items placed under his exclusive charge disappear without any reasonable explanation from him as to their disappearance, he can be held responsible without resort to due legal process. This informed the decision of the supreme court in BABA v N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388.

Learned counsel for the appellant relying on Section 36 of the 1999 Constitution and ARINZE v FIRST BANK OF NIG. LTD. supra submitted that his dismissal cannot be faulted since the procedure set out in the University’s Regulations for disciplining an officer was followed and the Respondent was accorded fair hearing before the final disciplinary action was taken against him.