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Before Their Lordships
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
Between
AKINOLA AROBIEKE –Appellant
AND
NATIONAL ELECTRICITY LIABILITY MANAGEMENT COMPANY –Respondent
…………………….A…………………….
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Judicial Division (Coram: Dalhatu Adamu, JCA, Christopher M. Chukwuma-Eneh JCA (as he then was) and Jean Omokri JCA, delivered on Monday, the 23rd day of May, 2005 in which it set aside the decision of C. C. Nwaogwugwu J, of the Federal High Court, Calabar.
The Federal High Court, hereinafter referred to as the trial Court had on the 6th day of October, 1998 made an order of certiorari, quashing the proceedings, findings and recommendations of the respondents Ad-hoc Disciplinary Committee on the basis of which the appellant’s appointment was terminated.
FACTS BRIEFLY STATED:
The appellant was an employee of the respondent. At all times material, he was deployed to the Calabar District Office and held the office of Assistant Manager (O & M). His schedule of duties included the supervision of Head of Fitters, Head of Cable, Head of 33KV Line Maintenance, Head of 11KV Line Maintenance, Trainee (IT) Officer 1 (O & M) and he reported to the Manager (Distribution).
On or about 26th June, 1996, the appellant was allegedly in a case of co-ordination and supervision of unauthorized extensive electrical maintenance works at the Calabar Wood Company Limited in conspiracy with one Mr. O. J. Oyira and using other workers of the Respondent for private monetary benefit from the said company. In engaging in his unauthorized venture (business) the appellant perpetuated his unlawful act using the servants of the respondent (under his official control), the official time of the respondent and the respondent’s filtration plant.
When these alleged activities came to the knowledge of management of the respondent, which was a clear violation and abuse of office by the appellant, the management conducted initial investigation which was followed by a query to the appellant dated 25th June 1996 – REF.3114.5 NOL.XI/96/3236. Queries were also issued to others found involved in the unauthorized works.
The appellant was also placed on interdiction. The query served on the appellant carried the offences and breaches levelled against him, properly formulated, which duly informed him of the penalty, which was dismissal as a possible result for which he was required to respond within 48 hours. He signed for same on 27th June, 1996.
The responses received from other workers similarly queried for the illegal and unauthorized maintenance works, were attached to the appellants query and served on him, (These were responses from Messrs Oyira J. Oyira and E. Akioyemen who colluded with appellant in the works). (See Exhibits KGA 3 & KGA 4 at Pages 26 – 27 of record attached to appellants affidavit).
Appellant responded to the queries:
Against this background, and being dissatisfied with the appellant’s response and that of the other accomplices/partners in the unauthorized works which was considered a grave breach of the authority’s regulation and abuse of office for private benefit, the respondent set up an AD-HOC DISCIPLINARY COMMITTEE to determine the magnitude and culpability of these officers. MR. A.I.C. EZE, Manager (D); Oyira J. Oyira Officer III (Fitter); A. A. Arobieke – Assistant Manager (O & M); M. E. Akioyemen Officer; (O & M) in particular and others in Calabar District and amongst other things apportion blame and also recommend appropriate disciplinary actions.
By a letter dated 10th July, 1996, the Chairman of the AD-HOC DISCIPLINARY COMMITTEE, Engineer J.I. Ahamioje invited the appellant to appear before the committee still on the issue of “Alleged case of Unauthorized Maintenance Work at Calabar Wood Company Limited. Noteworthy is the fact that the query earlier served on the appellant also charged him of Coordinating and Supervising the Unauthorized Extensive Electrical Maintenance hob at the Calabar Wood Company.”
The Ad-Hoc Disciplinary Committee duly discharged their assignment, the appellant duly appeared before the Committee and answered questions touching and relating to the Unauthorized maintenance Works aforesaid. Witnesses including officers who the appellant used to execute the works, who were by his schedule of works directly under his control, testified before the Committee in the presence of the appellant. The Committee promptly called one witness Mr. B. O. Ukeh, which the appellant mentioned for purposes of supporting his evidence in defence, that Mr. Oyira J. Oyira was not on duty between 12 and 24 September 1995, and he testified before the appellant and contradicted appellant’s testimony.
…………………….B…………………….
The Ad-Hoc Disciplinary Committee, took evidence on the issue of the unauthorized works and unlawful use of the authority’s workers and equipment for the private work by bringing all the sectional heads working under the appellant, and other co-accused persons, Mr. Oyira J, Oyira and Mr. Akioyemen to testify before each other and in the presence of each other and the appellant was afforded opportunity to put questions to them which he did.
It was during this session, when all the witnesses (the Head of Sections) who worked directly under the appellant confirmed the committee before the appellant that he coordinated the unauthorized Works; although he continued to deny that they were satisfied that the accusation against the appellant was made out.
The Committee in covering all the areas of their wider terms of reference, in the course of investigation, reached out to other persons and also interviewed others not in the presence of the appellant, that did not diminish the fact that on the primary issue of coordination of the unauthorized Works at Calabar Wood Limited fair hearing was completely complied with as the real witnesses (who carried out the physical works) testified unanimously and without any contradiction as to who sent them for such private works. These were workers placed under supervision of the appellant.
The Committee in their recommendation observed as follows:.
“He (Appellant) also co-ordinated and supervised this job because apart from Mr. Oyira, he delayed Cable Jointers and the Authority’s Filtration Machine to enable Mr. Oyira execute the unauthorized job.
The panel therefore found Mr. Akinola Arobieke blame worthy.”
The Ad-Hoc Disciplinary Committee’s Report is Exhibit “AA”. Following the submission of this report, the respondent on or about 19th November, 1996, terminated the appointment of the appellant. The appellant’s appeal against the termination was rejected after a careful consideration by the respondent’s management report.
On the 27th day of March, 1997 the appellant filed a motion ex-parte seeking the following reliefs:-
1. An order granting leave to the Applicant (Appellant) to bring up to this Honourable Court for the propose of being quashed the proceedings and findings of the Ad-Hoc Disciplinary committee set up by the respondent and headed by Engineer J. I. Ahamioje and the decision of the appellant terminating the appointment of the Applicant (Appellant) based on the said findings and recommendations the same being unconstitutional, null and void and being in excess of the powers and jurisdiction of the committee and the appellant and also a violation of the respondents’ right to fair hearing.
2. An order of injunction to restrain the respondent by itself or through its servant or any other person(S) otherwise howsoever described from enforcing or otherwise acting on the proceedings of the Ad-Hoc Disciplinary Committee and on the decision of the Management of the respondent terminating the appellants’ appointment.
3. Such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The trial Court delivered ruling on the 6th of October, 1998 and granted the prayers of the appellant declaring the entire trial, proceedings, findings and recommendation of the Ad-Hoc Disciplinary committee upon which the appointment of the appellant was terminated, unconstitutional, illegal, null and void and quashed same. It also issued an order of perpetual injunction restraining the respondent as claimed in the application.
Against that judgment, the respondent appealed to the Court of Appeal by Leave of that Court granted on 6/7/99. The Court of Appeal, heard the appeal, and on the 23rd day of May 2005, delivered unanimously their judgment wherein they up held the appeal, set aside the decision of the Federal High Court and dismissed the appellants’ application before the Federal High Court. It is against the decision of the Court of Appeal that the Appellant has filed this appeal.
On the 25th day of September, 2017 date of hearing, learned counsel for the appellant, E. O. E. Ekong Esq., adopted appellant’s amended brief of argument filed on 16/3/17 and deemed filed on the 28/3/17 and a Reply brief of argument filed on 19/3/17. He distilled a sole issue, viz:-
Whether, on a proper and balanced evaluation of the evidence before the trial Court, and on a fair consideration of the case before them, the learned justices of the Court of Appeal were right in accusing the learned trial judge of being biased against the respondent, and in setting aside the decision of the trial Court quashing the proceedings, findings, recommendations and decisions of the respondents Ad-hoc Disciplinary Committee on grounds of breach of fair hearing.
…………………….C…………………….
For the respondent, Imo Inyang Esq., of counsel adopted its brief of argument filed on 23/3/17 and deemed filed on 28/3/2017. Learned counsel crafted a single issue as follows:-
Whether on a fair, balanced and proper evaluation of the evidence before the trial Court, the learned Justice of the Court of Appeal were right in holding that the Ad-hoc Disciplinary Committee did not violate the rules of natural justice while considering the appellant’s disciplinary case and consequently in proceedings to set aside the decision of the trial Court.
The issues as differently formulated on either side are really asking the same question and it does not matter which one is utilised. However, I shall use that as drafted by the respondent as it is seems to me simpler and easy to handle in getting at the answer and thereby resolve the dispute in this appeal.
SOLE ISSUE:
Whether on a fair, balanced and proper evaluation of the evidence before the trial Court, the learned Justices of the Court of Appeal were right in holding that the Ad-hoc Disciplinary Committee did not violate the rules of natural justice while considering the appellant’s disciplinary case and consequently in proceeding to set aside the decision of the trial Court.
Mr. Ekong of counsel for the appellant contended that the Ad-hoc Disciplinary Committee that investigated the allegation of misconduct against the appellant and made the recommendations for the termination of his appointment was bound to observe the rule of natural justice. He cited Yusuf v Union Bank of Nigeria Limited (1996) 6 NWLR (Pt. 457) 632 at 644 to 645; Legal Practitioners Disciplinary Committee v Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300.
Learned counsel for the appellant stated that Exhibit KGA – 10, which is the invitation letter sent to the appellant to appear before the Ad-hoc Disciplinary Committee to see whether it contains the accusation of what the appellant was invited to do at the panel. That a perusal of the Exhibit shows that the charge or accusation or an information of any misconduct against the appellant was absent on the face of that letter of invitation, Exhibit KGA 10. That the respondent cannot hang on Exhibit B, an earlier query to the appellant to be adequate to meet the condition of fair hearing and its breach thereof. Mr. Ekong also submitted that the appellant’s answer to the said query which response is Exhibit would not settle for what was required for the fair hearing rule. He relied on Olatunbosun v NISER (1988) 3 NWLR (Pt. 80) Learned counsel for the appellant put forward the argument that the conditions of service of the respondent relating to appellant, Exhibit KGA 8 was breached in this instance as it stated the agreed terms in that contract of employment dealing with conduct of disciplinary proceedings especially as in this instance, an employment with statutory flavour. He relied on Ibama v Shell PDC Ltd (2005) 24 NSCQR 190; Baker Marine Ltd v Chevron (2006) 26 NSCQR (Pt. 2) 1121 etc.
It was canvassed for the appellant that there was no basis for the Court below interfering with the findings and conclusion of the trial Court as those findings were not perverse but came out from the evidence before Court as shown in the record. It was cited the cases of Udonwa v Otu(2001) FWLR (Pt. 51) 2006 at 2016; Ogunleye v Oni (1990) 2 NWLR (Pt. 135), Union Beverages Ltd v Pepsi Cola Int. Ltd (1994) 4 NWLR (Pt. 329) 1 at 12.
Responding, learned counsel for the respondent, Imo Inyang Esq., contended that the position of the law is that a body such as the Ad-hoc Disciplinary Committee is not expected to comply with and/or observe strictly the procedure of natural justice as applicable to the Courts but only to substantially observe the twin pillars of justice of audi alteram partem andnemo judex in causa sua by giving the appellant opportunity to know the case, against him and to answer it. That in this case, the appellant knew the case against him and was given the opportunity to answer it and as the law demands substantial compliance, the Committee met the requirement. He relied on the case of Federal Polytechnic Mubi v T. L. M. Yusuf (1991) 1 NWLR (Pt.165) 81.
…………………….D…………………….
For the respondent, it was submitted that the Court of Appeal exhaustively evaluated the evidence before the trial Court and his reasonings and conclusions and found them in grave error and justifying the Court below interfering by re-evaluating the evidence and coming to the proper conclusion. The cases of A. G. Ekiti State v Daramola (2003) FWLR (Pt.169) 1121; Awara v Alalibo(2003) FWLR (pt. 144) 415; Sokoto Furniture Fac Ltd v Societe Generale Bank Nig. Ltd. (2003) FWLR (pt.186) 693; Polo v Ojor (2003) FWLR (Pt. 137) 1085; Fari v Federal Mortgage Finance Bank Ltd (2004) All FWLR (pt. 235) 27.
In reply on point of law, learned counsel for the appellant contended that there is no such doctrine or principle of “substantial compliance” with the rules of natural justice in our jurisprudence. That fair hearing is a matter of substance and not form. He cited Mohammed v Kano Native Authority (1968) Pt. 1 ANLR page 424; CBN v Kotoye (1989) 1 NWLR (pt. 98) 419.
In a nutshell, the stance of the appellant is that the appellant was neither charged nor informed of the case against him at the Ad-hoc Disciplinary Committee Exhibit KGA 10 which invited him to appear before the said Committee as it contained no accusation, information nor did it give any notice of any allegation, wrongdoing or misconduct against the appellant was being invited to appear before the panel.
Disagreeing with that appellant’s position, the respondent stood firmly to the view that appellant knew that he was being accused of the offence of unauthorised extensive maintenance work at Calabar Wood contrary to the regulation of the authority. That he was given adequate opportunity to exculpate himself from those charges before the Ad-hoc Disciplinary committee which was substantially in compliance with the rules of natural justice and accorded the appellant fair hearing as guaranteed by the 1999 Constitution of Nigeria (as amended).
The decision of the learned trial judge went along the stand taken by the appellant as plaintiff and in finding for him, that Court of trial had held thus:-
Exhibit KGA 10 i.e. the letter inviting the appellant to the panel ought to have mentioned or specified the charge or allegation against the application for which he is invited to answer. There is nothing on that face of Exhibit KGA 10 to suggest the slightest charge against the applicant by any stretch of imagination.
The law does not only require that a person appearing before any judicial, quasi – judicial or administrative panel be informed of the charge against him, it also requires that he be informed adequately, timeously and in the language he understands even though the charge may not be exactly like a formal charge before a law Court. This view was re-adumbrated by the Supreme Court of Nigeria in the case of Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (pt. 457) 632 at ratio 2 when the Court said,
‘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 representation in his own defence. But the complaint need 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.”
The trial Court had taken that position in interpreting the said Exhibit KGA – 10 and that is that the Exhibit had not given the appellant notice of what he was accused of and appearing before the panel for. The full content of the said Exhibit KGA 10 does not bear out that stance of the Court of first instance and for a clearer view I shall recast it hereunder as follows:-
“From: The Chairman,
Ad-Hoc Disciplinary Committee
To: Mr. Akin Ariobieke
Asst. Manager(O&M)
District Office
Calabar.
AD-HOC DISCIPLINARY COMMITTEE PROBING THE ALLEGED CASE OF UNAUTHORISED MAINTENANCE WORK AT CALABAR WOOD COMPANY LIMITED, CALABAR.
INVITATION TO APPEAR
You are hereby invited to appear before the above named committee between 16th to 19th July, 1996 from 8.30am at the District Office, Calabar.
Please endeavour to appear.
Sgd: Engr. J. I. AHAMIOJE
CHAIRMAN.
…………………….E…………………….
It is a fact that the main body of the letter of invitation was tersely crafted to proffer that appellant appear at the committee at a specified time, date and place and no more. That cannot be read in isolation to the whole body of the letter as the title left nothing for conjecture or speculation on to what was at foot. That title of the letter stated clearly thus:-
“AD- HOC DISCIPLINARY COMMITTEE PROBING THE ALLEGED CASE OF UNAUTHORISED MAINTENANCE WORK AT CALABAR WOOD COMPANY LIMITED, CALABAR.”
Indeed Exhibit KSA-10 did not just fly in without a foundation on it had come after a query by the Authority to appellant and an interdiction. For case of reference, I shall quote the correspondences between the parties hereunder, viz:-
The query Exhibit B at page 52 of the record reads:-
“General Manager (D&M)
Enugu Zone
25th June, 1996
Ref: 31/4.5/00xi/96/3236 Mr. Akin Arobieke
Assistance Manager (O&M)
Ufs District Manager
QUERY
It has been brought to the knowledge of this management that you coordinated and supervised the unauthorized extensive electrical maintenance job at the Calabar Wood Company Limited, in conspiracy with Mr. O. J. Ojira and others, for monetary benefit from the Wood Company. The report received reveals that:-
1. You coordinated and supervised the maintenance and service work on 3 Nos. 750/CVA Transformers 1, 2 and 3.
2. You coordinated and supervised the maintenance works in 5 Nos. of 11 KV OCB panels.
Your action amounts to general misconduct and engagement in trade in competition with the Authority, or in conflict with the interest of the Authority, both punishable by dismissal from the service of the Authority in accordance with Regulation 33.62(5) of the Authority’s condition of service – 1978 Edition.
You are to show cause in writing within 48 hours of your receipt of this letter as to why you should not be disciplined in accordance with the above cited regulation.
You should acknowledge the receipt of this letter by signing on the attached copies.
Signed
Engr. J. O. Ogbonna
General Manager (D & M) Enugu Zone
“ACKNOWLEDGMENT
I hereby acknowledge the receipt of your letter mentioned above.
Name: A. Arobieke
Designation: A/M (O&M)
Date: 2216186
Signed…..
Time: 11.40 am”
The Court of Appeal faced with the appeal and the materials before it had no hesitation in holding as follows:-
“As I said earlier, if the learned trial judge had given due and equal regard or consideration to the appellant’s case, he would have clearly seen and held that the respondent has had sufficient notice of the allegation of misconduct against him which had been conveyed to him via the letter of query (Exhibit “B”) and that of his invitation to attend the panels proceedings. It is boldly written in the said letter of invitation (Exhibit – :KGA 10″) that the respondent was invited to appear before the Ad-hoc Committee probing the alleged case of unauthorized maintenance work at Calabar Wood Company. This is also the same allegation on which he was accused of in the earlier letter of query (Exhibit “B’). It is relevant to reproduce the content of Exhibit “KGA 10” (which is in a short form or wording) as follows:-
“Ad-Hoc Disciplinary Committee probing the alleged case of unauthorized Maintenance Work at Calabar Wood Company Limited”.
INVITATION TO APPEAR:
You are hereby invited to appear before the above named Committee between 10th to 19th July, 1996 from 8.30 am at the District Office Calabar.
Please endeavour to appear.
Signed:- Engr. J. I. Ahamioje
Chairman.”
For a fact, the Court below had tackled the matter of fair hearing or lack of it as postured by the appellant in these words:-
“Fair hearing and fair trial are said to be synonymous and the test for its observance is not based on technicality but on the substance of the proceedings and the objective view or opinion of a fair minded person who was present throughout the proceedings whether in his opinion justice has been done to the parties in the case See Mohammed v Kano Native Authority (1968)1 All NWLR 424 and CBN v Kotoye (1989) 1 NWLR (Pt. 98) 419.” (See also Bakoshi v Chief of Naval Staff (2005) All FWLR (Pt.248) 1719.
The Court below further stated as follows:-
“This finding or conclusion is with due respect to the said learned trial judge erroneous and was in total disregard of the plain contents of Exhibit “KGA-10” and the circumstances of the case in which the respondent had been issued with a query Exhibit “B” which he answered (In Exhibit “C) both on the same allegation of misconduct against him and on the same topic of carrying out an Unauthorized Maintenance Work at Wood Company.”
…………………….F…………………….
My Lords, having set out the differing conclusions of the trial Court as against that of the Court below, I need at this stage to restate the position of this Court which has been referred to again and again and that is, that what constitutes fair hearing depends on the circumstances of each case. However in doing that, it is the accepted law that the basic procedural and other requirements of the rule of natural justice must be served by every Tribunal or authority whose decision will affect the right of another. In this, I will seek in aid the case of Legal Practitioners’ Disciplinary Committee v Gani Fawehinmi (1985) 2 NWLR (pt. 7) 300 at 347 – 348 per Eso JSC thus:-
“It is not easy to place a Tribunal in the compartment of purely administering, predominantly administering or one with judicial or quasi-judicial function. In my view, a pure administrative Tribunal may turn judicial once it embarks on judicial or quasi-judicial adventure.
The test to mind should be the function the Tribunal performs at a particular time. During the period of in-course into judicial or quasi judicial function, an administrative body must be bound in process thereof to observe the principles that govern exercise of judicial function. ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence. Merely to describe a statutory function as administrative,judicial or quasi-judicial is not by itself sufficient to settle the requirement of natural justice. This certainly leaves it open for the Court to go into the substance of the very act of then Tribunal rather than form of description.”
In his own contribution Oputa JSC put across the following at page 392 paras. D-G thus:
“The debate over what constitutes a judicial Tribunal, a quasi-judicial Tribunal, a domestic Tribunal, a Tribunal simpliciter, arbitrament, arbitral proceedings, forum competent etc. will certainly go on as an academic exercise; but once a body of persons by whatever name called are vested with authority to hear and determine particular issues or dispute either by consent of the disputants or by an order of Court, or by provisions of a statue, such a body will be required to carry out its functions with that fairness and impartiality which the rules of natural justice dictate.
I may now deal with Chief Williams’ contention that the Disciplinary committee is not bound by the rules of natural justice because the respondent will have ample opportunity of being heard by the Appeal Committee. My learned brother, Aniagolu, JSC has dealt adequately with this issue.
I agree with him that the direction of the Disciplinary committee is a decision which may affect and, may be, adversely the civil right of the respondent. Whether it is final or not is irrelevant to the observance of the rule of natural justice in reaching the decision. I can see no valid reason why if the principle of natural justice have to be applied to a Tribunal entrusted with final decision, the same should not be true of a Tribunal which have to decide a preliminary point which may affect the right of the Parties.
It is now settled law that an administrative panel such as the AD-HOC disciplinary committee in the case at hand in its enquires may not necessarily strictly adhere to such rules of natural justice such as exist in a Court as known to our law however it is standard and I dare say basic that the rules of fair hearing- natural justice can neither be compromised nor waived. The reason is that any infraction to that basic rule of fair hearing should automatically bring to naught whatever had been done in the process of the inquires embarked upon by the panel, judicial or administrative. See Federal Polytechnic Mubi v T.L.M Yusuf (1991) 1 NWLR (Pt. 165) page 81 at 100; Olaniyan and Ors v University of Lagos & Anor. (1985) 2 NWLR (Pt. 80) 25.
Interestingly from what I can see, the principles of natural justice were well pushed up by learned counsel for the appellant and there is no dispute in that regard. The point of divergence starts from whether or not those basic rules were applied to the appellant by the Ad-Hoc Committee. The appellant posits negatively stating that he was invited without knowing what he was called for. In taking that stand, he anchored on just those two lines in Exhibit KGA-10 asking him to appear before the panel. The respondent disagreeing with that stance says the whole body of the letter of invitation, the same Exhibit KGA-10 ought to be fully read not picking a part of it and that when fully read, it would clearly be seen that appellant was not left in the dark on what he was being invited to appear for. The Court below went along the path trod by the respondent and said so in clear terms as follows – per Adamu J.C.A:-
…………………….G…………………….
It is also my view on the point so raised that I have already dealt with the said point in my above consideration and upon my findings that there was no breach by the Ad-Hoc Committee of the respondent’s (i.e. the appellant herein) right of fair hearing or any violation of the rules of natural justice on the part of the said committee in its proceedings. It is to be pointed out that although the respondent’s employment which was terminated by the appellant is one with statutory flavours in which was investigative or administrative panel is bound or required to observe the provision of the statue regulating the employment along with the common law principles, all the four conditions stipulated under Article 34.01 as reproduced in the respondent’s brief are based on and are in accord with the doctrine or rules of natural justice and fair hearing as agreed or conceded by the said respondent at page 24 of his brief. Consequently, my above findings that the Ad-Hoc Committee in the present case had complied substantially with the rules of natural justice has overtaken or provided an answer to the respondent’s complaint based on the alleged non-compliance with the said rules (on conditions of service) which are themselves based on the principles and rules of natural justice and fair hearing.”
Having considered the preliminary angle of whether in the first place, the appellant was given a full opportunity of knowing why he was invited before the panel with attendant advantage of preparing for his defence apart from cross examining the witnesses which I see as having been done in keeping with the law and in line with fair hearing or natural justice. The follow up would be, if in the course of the proceedings the facts were well laid out in such a way that the findings and conclusions of the panel would be adjourned meritorious. The Court below had reacted thus:-
“The learned trial judge in this judgment also failed to consider other pieces of evidence in the case in favour of the Appellant which show that the Respondent, apart from having a prior notice of the Appellant’s allegation against him also appeared before the Ad-Hoc Committee when some of the witnesses gave evidence and he in fact put questions to the said witnesses in cross examination… (see also Exhibit AA (the proceedings of the Ad-Hoc Committee at page 143 thereof where the Respondent asked one of the witness (Mr Akioyemen) a question in cross-examination. He could not have done so if the evidence was taken behind him as alleged by the learned counsel.”
From what I can see, the appellant seems to be guiding the Court on a narrow garden path in the belief that the panel not being legally trained would be hamstrung on the strict legal procedures of a properly constituted Court in which case they would be found wanting. Thoroughly, the Court below saw through this scheme and dispatched it as follows:-
“The calibre or status of the member of the panel who were laymen should also be considered thus the committee would not be required to observe or to follow the strict procedures similar to that of a Court of law and even when it refuses to give the Respondent oral hearing at all or the right to cross-examine the witnesses or even where it obtained some of its evidence from other quarters or sources beyond the Appellant, it would not be regarded as denying him fair hearing or acting contrary to the rules of natural justice.” Reliance was made on Queen v Director of Audit (1961) NSCC 292; Adedeji v Police Service Commission (1967) NSCC 292; Eperokun v Unilag (1986) 4 NWLR (pt. 34) 162 at 173 amongst others.
That dealt a mortar brow on what the trial Court which rendition of the trial Court is thus:-
“From the submission, the fundamental issue that calls for determination here is whether or not the Ad-Hoc Disciplinary Committee set up by the respondent on whose report and recommendation the respondent acted upon in terminating the Applicant’s the appointment accorded the applicant the right to fair hearing in their deliberations before arriving at their finding and decisions. If the answer is yes, this Court will uphold the proceedings, findings and recommendation of the committee, but if the answer is in the negative, the Court shall declare same unconstitutional, null and void and will quash it accordingly.
The Court below in setting aside the earlier decisions of the trial Court had held thus:-
“It is also my view on the point so raised that I have already dealt with the said point in my above consideration and upon my finding that was no breach by the Ad-Hoc Committee of the respondent’s
…………………….H…………………….
(i.e. the appellant herein) right of fair hearing or any violation of the rules of natural justice on the part of the said Committee in its proceedings. It is to be pointed out that although the respondent’s employment which was terminated by the appellant is one with statutory flavour in the investigative or administrative panel is bound or required to observe the provision of the statute regulating the employment along with the common law principle, all the four conditions stipulated under Article 34.01 as reproduced in the respondent’s brief are based on and are accord with the doctrine or rules of natural justice, and fair hearing as agreed or conceded by the said Respondent at page 24 of his brief. Consequently, my above finding that the Ad-Hoc Committee in the present case had complied substantially with the rules of natural justice had overtaken or provided an answer to the respondent’ complain based on the alleged non-compliance with the said rules (on the condition of service) which are themselves based on the principles and rules of natural justice and fair hearing.”
From what is available, the Court of Appeal was in order and went along the enabling law in upturning and setting aside the judgment of the trial Court which failed to evaluate the entire evidence before him and rather went into the narrow compass the appellant had led him thereby producing a decision perverse and invalid which I have no difficulty in discerning and intervening to reversal that wrong decision. The conclusion is that there is nothing on which I can justify on interference with what the Court below did. Rather the situation is such that I acknowledge that the Court below was correct in re-evaluating what the Court of first instance did and coming to the proper decision.
In light of the foregoing, I have no hesitation in stating that this appeal lacks merit and have no option than to dismiss it. Appeal is hereby dismissed and I affirm what the Court of Appeal did in setting aside the judgment of the trial High Court and for effect, the Disciplinary Committee of the respondent was correct in its findings and conclusions and the termination of the appellant’s appointment by the respondent correct and effective.
I make no order as to costs.
OLUKAYODE ARIWOOLA, J.S.C.: I have had the opportunity of reading in draft, the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning and conclusion that the appeal is devoid of any merit. It deserves to be dismissed. Accordingly, I too dismiss the appeal and affirm the decision of the Court below.
I abide by the consequential orders including the order on cost.
JOHN INYANG OKORO, J.S.C.: The judgment just delivered by my learned brother, Mary Ukaego Peter-Odili, JSC was made available to me in draft in which I read before now. For the reasons advanced to reach the conclusion that this appeal is devoid of merit, I agree entirely with the judgment. The facts upon which the appeal is anchored are well encapsulated in the lead judgment. I shall therefore make a few comments in support of the judgment only.
The main complaint of the appellant in this appeal is that the Ad-hoc Disciplinary Committee which investigated him did not observe rules of Natural Justice. That Exhibit KGA 10 which is a letter inviting him to appear before the panel did not disclose the case he was expected to face. It is his contention that the contents of Exhibit B, the query earlier issued to him does not contain adequate information to that effect.
As was effectively explained in the lead judgment, a combination of Exhibits B and KGA 10 – the query which explained the complaint against the appellant and the letter of invitation of the appellant to the Ad-hoc Committee investigation respectively, in my opinion, put the appellant on notice of the case he was expected to defend before the panel. Accordingly, his complaint against the Ad-hoc committee does not fly at all. Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before a Court or Tribunal, an Ad-hoc Tribunal inclusive. Where parties are given opportunity to be heard and the charge or complaint against the party standing trial or being investigated made available to them, they cannot complain of breach of fair hearing principles. See Darma v Ecobank Nig. Ltd. (2017) LPELR – 41663 (SC), Prof. Folarin Shyllon v Mrs Judith Asein (1994) LPELR 3071 (SC), (1994) 6 NWLR (Pt 353) 670.
…………………….I…………………….
I have carefully considered the judgment of the lower Court but have not seen where the principles of natural justice were breached by the Ad-hoc panel. Rather, they were properly complied with. The Court below was therefore right to set aside the judgment of the trial Court and to uphold the report of the Ad-hoc committee which investigated the appellant.
With the little I have said above and the fuller reasons marshaled in the lead judgment, I agree that there is no merit in this appeal. I also dismiss same, I abide by the order as to costs.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment just delivered by my learned brother, Peter-Odili, JSC, and I agree with him that this Appeal lacks merit.
The Appellant, who is an employee of the Respondent, allegedly co-ordinated and supervised unauthorised works at another Company. The Respondent issued him a query that clearly indicated the offences and breaches levelled against him. Dissatisfied with Appellant’s reply to the query and that of the other employees, who allegedly carried out the unauthorized works under the direct supervision of the Appellant, the Respondent set up an AD-HOC DISCIPLINARY COMMITTEE, and the letter inviting him to appear before the said committee reads – Ad-Hoc Disciplinary Committee probing the alleged case of Unauthorized Maintenance Work at Calabar Wood Company Limited. Calabar.
INVITATION TO APPEAR
You are invited to appear before the above committee named committee between 16th to 19th July, 1996 from 8.30am at the District Office, Calabar.
The Appellant contends inter alia that he was denied a fair hearing by the Committee because it is evident from the face of the invitation letter that the allegation against him is absent, and the Court of Appeal erred in setting aside the trial Court’s finding that he was denied fair hearing.
The trial Court held that the said letter [Exhibit KGA 10] ought to have mentioned or specified the charge or the allegation against him, and that there is nothing on the face of Exhibit KGA 10 to suggest the slightest charge against [him] by any stretch of imagination”.
The Court of Appeal, however, held that if the learned trial Judge had considered his case properly, he would have seen that the Appellant “had sufficient notice of the allegation of misconduct against him, which had been conveyed to him via the letter of Query Exhibit B] and that of his invitation to attend the panel’s proceeding”, and it is right. The Appellant was invited to appear before the Ad-hoc Committee probing the alleged case of unauthorized maintenance work, and the same allegation is set out in the earlier query, to which he responded.
So, the Court of Appeal’s conclusion that the trial Court’s finding was erroneous and in total disregard of the plain contents of the letter of invitation, and the circumstances of this case, in which the Appellant had been issued with a query, which he answered, on same allegation, cannot be faulted, and I see no reason to interfere with that decision.
Thus, I also dismiss this Appeal. I also make no order as to costs.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Mary Peter-Odili JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My Learned brother has, as usual, set out elaborately and comprehensively the facts of this case and the Law applicable in reaching his decision. I can therefore only add a few words in support of the lead judgment.
The Appellant’s main complaint against the decision of the lower Court is that he was not accorded fair hearing because there was no formal charge against him by the Ad-hoc Committee and that witnesses called before the committee testified behind him.
In dealing with this complaint, the lower Court before which the same complaint was raised, at pages 297-298 of the printed record of this appeal said:-
The law is well settled that what constitutes a fair hearing or its breach depends on the circumstances of each case and in the present case in which the ad hoc panel or committee was merely administrative, investigative or exploratory one, with power only to investigate the complaint against the respondent and to make appropriate recommendation to the management and without any power to decide finally on his right, the said committee was not exercising the role or function of a Court of Law by trying the respondent for any offence of crime. The caliber or status of the members of the panel who were laymen should also be considered.
…………………….J…………………….
I agree entirely with the lower Court that the ad-hoc committee that was set up by the respondent was an administrative panel which did not require framing of formal charges against the Appellant. Under the common Law, before an employer can dispense with the services of his employee, he needs to afford the employee an opportunity of being heard before exercising his power of dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. There is no requirement that there must be a formal charge against the employee. In Yusuf v. U.B.N. PLC (1996) 6 NWLR (Pt. 457) 632 at 645 Para A, this Court per Onu JSC held:-
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 representation in his own defense. 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.
In the instant case, the appellant was duly queried. The query Exhibit B, at page 52 of the printed record of this appeal contains all the allegations against the Appellant for which he was required to react. The title of the letter of invitation from the ad-hoc committee clearly informed the Appellant that he was invited in respect of the unauthorized maintenance work at Calabar wood Company Limited. The proceedings conducted by the Ad-Hoc Committee clearly shows that witnesses including officers who the Appellant used during the unauthorized works, testified before the committee in the presence of the Appellant who put questions to them. In my view, the lower Court was right when it held that the Appellant was accorded fair hearing. Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. It is synonymous with fair trial and implies that every reasonable and fair minded observer who watches the proceedings should be able to come to conclusion that the Court or Tribunal has been fair to all the parties. In the instant case, the Ad-Hoc Committee not only disclosed to the appellant the allegations against him, but took the testimonies of witnesses in his presence and he was allowed to cross-examine those witnesses. I am therefore satisfied that the Ad-Hoc Committee complied with the provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and so I hold. See Baba v N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388,Okafor v. The A.G- Anambra State (1991) 6 NWLR (Pt. 200) 659.
For these few words and the more detailed reasoning in the lead judgment of my Learned brother Mary Peter-Odili, this appeal shall be and it is hereby dismissed. I abide by all the consequential orders made in the said judgment including order as to costs.
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Judicial Division (Coram: Dalhatu Adamu, JCA, Christopher M. Chukwuma-Eneh JCA (as he then was) and Jean Omokri JCA, delivered on Monday, the 23rd day of May, 2005 in which it set aside the decision of C. C. Nwaogwugwu J, of the Federal High Court, Calabar.
The Federal High Court, hereinafter referred to as the trial Court had on the 6th day of October, 1998 made an order of certiorari, quashing the proceedings, findings and recommendations of the respondents Ad-hoc Disciplinary Committee on the basis of which the appellant’s appointment was terminated.
FACTS BRIEFLY STATED:
The appellant was an employee of the respondent. At all times material, he was deployed to the Calabar District Office and held the office of Assistant Manager (O & M). His schedule of duties included the supervision of Head of Fitters, Head of Cable, Head of 33KV Line Maintenance, Head of 11KV Line Maintenance, Trainee (IT) Officer 1 (O & M) and he reported to the Manager (Distribution).
On or about 26th June, 1996, the appellant was allegedly in a case of co-ordination and supervision of unauthorized extensive electrical maintenance works at the Calabar Wood Company Limited in conspiracy with one Mr. O. J. Oyira and using other workers of the Respondent for private monetary benefit from the said company. In engaging in his unauthorized venture (business) the appellant perpetuated his unlawful act using the servants of the respondent (under his official control), the official time of the respondent and the respondent’s filtration plant.
When these alleged activities came to the knowledge of management of the respondent, which was a clear violation and abuse of office by the appellant, the management conducted initial investigation which was followed by a query to the appellant dated 25th June 1996 – REF.3114.5 NOL.XI/96/3236. Queries were also issued to others found involved in the unauthorized works.
The appellant was also placed on interdiction. The query served on the appellant carried the offences and breaches levelled against him, properly formulated, which duly informed him of the penalty, which was dismissal as a possible result for which he was required to respond within 48 hours. He signed for same on 27th June, 1996.
The responses received from other workers similarly queried for the illegal and unauthorized maintenance works, were attached to the appellants query and served on him, (These were responses from Messrs Oyira J. Oyira and E. Akioyemen who colluded with appellant in the works). (See Exhibits KGA 3 & KGA 4 at Pages 26 – 27 of record attached to appellants affidavit).
Appellant responded to the queries:
Against this background, and being dissatisfied with the appellant’s response and that of the other accomplices/partners in the unauthorized works which was considered a grave breach of the authority’s regulation and abuse of office for private benefit, the respondent set up an AD-HOC DISCIPLINARY COMMITTEE to determine the magnitude and culpability of these officers. MR. A.I.C. EZE, Manager (D); Oyira J. Oyira Officer III (Fitter); A. A. Arobieke – Assistant Manager (O & M); M. E. Akioyemen Officer; (O & M) in particular and others in Calabar District and amongst other things apportion blame and also recommend appropriate disciplinary actions.
By a letter dated 10th July, 1996, the Chairman of the AD-HOC DISCIPLINARY COMMITTEE, Engineer J.I. Ahamioje invited the appellant to appear before the committee still on the issue of “Alleged case of Unauthorized Maintenance Work at Calabar Wood Company Limited. Noteworthy is the fact that the query earlier served on the appellant also charged him of Coordinating and Supervising the Unauthorized Extensive Electrical Maintenance hob at the Calabar Wood Company.”
The Ad-Hoc Disciplinary Committee duly discharged their assignment, the appellant duly appeared before the Committee and answered questions touching and relating to the Unauthorized maintenance Works aforesaid. Witnesses including officers who the appellant used to execute the works, who were by his schedule of works directly under his control, testified before the Committee in the presence of the appellant. The Committee promptly called one witness Mr. B. O. Ukeh, which the appellant mentioned for purposes of supporting his evidence in defence, that Mr. Oyira J. Oyira was not on duty between 12 and 24 September 1995, and he testified before the appellant and contradicted appellant’s testimony.
…………………….B…………………….
The Ad-Hoc Disciplinary Committee, took evidence on the issue of the unauthorized works and unlawful use of the authority’s workers and equipment for the private work by bringing all the sectional heads working under the appellant, and other co-accused persons, Mr. Oyira J, Oyira and Mr. Akioyemen to testify before each other and in the presence of each other and the appellant was afforded opportunity to put questions to them which he did.
It was during this session, when all the witnesses (the Head of Sections) who worked directly under the appellant confirmed the committee before the appellant that he coordinated the unauthorized Works; although he continued to deny that they were satisfied that the accusation against the appellant was made out.
The Committee in covering all the areas of their wider terms of reference, in the course of investigation, reached out to other persons and also interviewed others not in the presence of the appellant, that did not diminish the fact that on the primary issue of coordination of the unauthorized Works at Calabar Wood Limited fair hearing was completely complied with as the real witnesses (who carried out the physical works) testified unanimously and without any contradiction as to who sent them for such private works. These were workers placed under supervision of the appellant.
The Committee in their recommendation observed as follows:.
“He (Appellant) also co-ordinated and supervised this job because apart from Mr. Oyira, he delayed Cable Jointers and the Authority’s Filtration Machine to enable Mr. Oyira execute the unauthorized job.
The panel therefore found Mr. Akinola Arobieke blame worthy.”
The Ad-Hoc Disciplinary Committee’s Report is Exhibit “AA”. Following the submission of this report, the respondent on or about 19th November, 1996, terminated the appointment of the appellant. The appellant’s appeal against the termination was rejected after a careful consideration by the respondent’s management report.
On the 27th day of March, 1997 the appellant filed a motion ex-parte seeking the following reliefs:-
1. An order granting leave to the Applicant (Appellant) to bring up to this Honourable Court for the propose of being quashed the proceedings and findings of the Ad-Hoc Disciplinary committee set up by the respondent and headed by Engineer J. I. Ahamioje and the decision of the appellant terminating the appointment of the Applicant (Appellant) based on the said findings and recommendations the same being unconstitutional, null and void and being in excess of the powers and jurisdiction of the committee and the appellant and also a violation of the respondents’ right to fair hearing.
2. An order of injunction to restrain the respondent by itself or through its servant or any other person(S) otherwise howsoever described from enforcing or otherwise acting on the proceedings of the Ad-Hoc Disciplinary Committee and on the decision of the Management of the respondent terminating the appellants’ appointment.
3. Such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The trial Court delivered ruling on the 6th of October, 1998 and granted the prayers of the appellant declaring the entire trial, proceedings, findings and recommendation of the Ad-Hoc Disciplinary committee upon which the appointment of the appellant was terminated, unconstitutional, illegal, null and void and quashed same. It also issued an order of perpetual injunction restraining the respondent as claimed in the application.
Against that judgment, the respondent appealed to the Court of Appeal by Leave of that Court granted on 6/7/99. The Court of Appeal, heard the appeal, and on the 23rd day of May 2005, delivered unanimously their judgment wherein they up held the appeal, set aside the decision of the Federal High Court and dismissed the appellants’ application before the Federal High Court. It is against the decision of the Court of Appeal that the Appellant has filed this appeal.
On the 25th day of September, 2017 date of hearing, learned counsel for the appellant, E. O. E. Ekong Esq., adopted appellant’s amended brief of argument filed on 16/3/17 and deemed filed on the 28/3/17 and a Reply brief of argument filed on 19/3/17. He distilled a sole issue, viz:-
Whether, on a proper and balanced evaluation of the evidence before the trial Court, and on a fair consideration of the case before them, the learned justices of the Court of Appeal were right in accusing the learned trial judge of being biased against the respondent, and in setting aside the decision of the trial Court quashing the proceedings, findings, recommendations and decisions of the respondents Ad-hoc Disciplinary Committee on grounds of breach of fair hearing.
…………………….C…………………….
For the respondent, Imo Inyang Esq., of counsel adopted its brief of argument filed on 23/3/17 and deemed filed on 28/3/2017. Learned counsel crafted a single issue as follows:-
Whether on a fair, balanced and proper evaluation of the evidence before the trial Court, the learned Justice of the Court of Appeal were right in holding that the Ad-hoc Disciplinary Committee did not violate the rules of natural justice while considering the appellant’s disciplinary case and consequently in proceedings to set aside the decision of the trial Court.
The issues as differently formulated on either side are really asking the same question and it does not matter which one is utilised. However, I shall use that as drafted by the respondent as it is seems to me simpler and easy to handle in getting at the answer and thereby resolve the dispute in this appeal.
SOLE ISSUE:
Whether on a fair, balanced and proper evaluation of the evidence before the trial Court, the learned Justices of the Court of Appeal were right in holding that the Ad-hoc Disciplinary Committee did not violate the rules of natural justice while considering the appellant’s disciplinary case and consequently in proceeding to set aside the decision of the trial Court.
Mr. Ekong of counsel for the appellant contended that the Ad-hoc Disciplinary Committee that investigated the allegation of misconduct against the appellant and made the recommendations for the termination of his appointment was bound to observe the rule of natural justice. He cited Yusuf v Union Bank of Nigeria Limited (1996) 6 NWLR (Pt. 457) 632 at 644 to 645; Legal Practitioners Disciplinary Committee v Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300.
Learned counsel for the appellant stated that Exhibit KGA – 10, which is the invitation letter sent to the appellant to appear before the Ad-hoc Disciplinary Committee to see whether it contains the accusation of what the appellant was invited to do at the panel. That a perusal of the Exhibit shows that the charge or accusation or an information of any misconduct against the appellant was absent on the face of that letter of invitation, Exhibit KGA 10. That the respondent cannot hang on Exhibit B, an earlier query to the appellant to be adequate to meet the condition of fair hearing and its breach thereof. Mr. Ekong also submitted that the appellant’s answer to the said query which response is Exhibit would not settle for what was required for the fair hearing rule. He relied on Olatunbosun v NISER (1988) 3 NWLR (Pt. 80) Learned counsel for the appellant put forward the argument that the conditions of service of the respondent relating to appellant, Exhibit KGA 8 was breached in this instance as it stated the agreed terms in that contract of employment dealing with conduct of disciplinary proceedings especially as in this instance, an employment with statutory flavour. He relied on Ibama v Shell PDC Ltd (2005) 24 NSCQR 190; Baker Marine Ltd v Chevron (2006) 26 NSCQR (Pt. 2) 1121 etc.
It was canvassed for the appellant that there was no basis for the Court below interfering with the findings and conclusion of the trial Court as those findings were not perverse but came out from the evidence before Court as shown in the record. It was cited the cases of Udonwa v Otu(2001) FWLR (Pt. 51) 2006 at 2016; Ogunleye v Oni (1990) 2 NWLR (Pt. 135), Union Beverages Ltd v Pepsi Cola Int. Ltd (1994) 4 NWLR (Pt. 329) 1 at 12.
Responding, learned counsel for the respondent, Imo Inyang Esq., contended that the position of the law is that a body such as the Ad-hoc Disciplinary Committee is not expected to comply with and/or observe strictly the procedure of natural justice as applicable to the Courts but only to substantially observe the twin pillars of justice of audi alteram partem andnemo judex in causa sua by giving the appellant opportunity to know the case, against him and to answer it. That in this case, the appellant knew the case against him and was given the opportunity to answer it and as the law demands substantial compliance, the Committee met the requirement. He relied on the case of Federal Polytechnic Mubi v T. L. M. Yusuf (1991) 1 NWLR (Pt.165) 81.
…………………….D…………………….
For the respondent, it was submitted that the Court of Appeal exhaustively evaluated the evidence before the trial Court and his reasonings and conclusions and found them in grave error and justifying the Court below interfering by re-evaluating the evidence and coming to the proper conclusion. The cases of A. G. Ekiti State v Daramola (2003) FWLR (Pt.169) 1121; Awara v Alalibo(2003) FWLR (pt. 144) 415; Sokoto Furniture Fac Ltd v Societe Generale Bank Nig. Ltd. (2003) FWLR (pt.186) 693; Polo v Ojor (2003) FWLR (Pt. 137) 1085; Fari v Federal Mortgage Finance Bank Ltd (2004) All FWLR (pt. 235) 27.
In reply on point of law, learned counsel for the appellant contended that there is no such doctrine or principle of “substantial compliance” with the rules of natural justice in our jurisprudence. That fair hearing is a matter of substance and not form. He cited Mohammed v Kano Native Authority (1968) Pt. 1 ANLR page 424; CBN v Kotoye (1989) 1 NWLR (pt. 98) 419.
In a nutshell, the stance of the appellant is that the appellant was neither charged nor informed of the case against him at the Ad-hoc Disciplinary Committee Exhibit KGA 10 which invited him to appear before the said Committee as it contained no accusation, information nor did it give any notice of any allegation, wrongdoing or misconduct against the appellant was being invited to appear before the panel.
Disagreeing with that appellant’s position, the respondent stood firmly to the view that appellant knew that he was being accused of the offence of unauthorised extensive maintenance work at Calabar Wood contrary to the regulation of the authority. That he was given adequate opportunity to exculpate himself from those charges before the Ad-hoc Disciplinary committee which was substantially in compliance with the rules of natural justice and accorded the appellant fair hearing as guaranteed by the 1999 Constitution of Nigeria (as amended).
The decision of the learned trial judge went along the stand taken by the appellant as plaintiff and in finding for him, that Court of trial had held thus:-
Exhibit KGA 10 i.e. the letter inviting the appellant to the panel ought to have mentioned or specified the charge or allegation against the application for which he is invited to answer. There is nothing on that face of Exhibit KGA 10 to suggest the slightest charge against the applicant by any stretch of imagination.
The law does not only require that a person appearing before any judicial, quasi – judicial or administrative panel be informed of the charge against him, it also requires that he be informed adequately, timeously and in the language he understands even though the charge may not be exactly like a formal charge before a law Court. This view was re-adumbrated by the Supreme Court of Nigeria in the case of Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (pt. 457) 632 at ratio 2 when the Court said,
‘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 representation in his own defence. But the complaint need 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.”
The trial Court had taken that position in interpreting the said Exhibit KGA – 10 and that is that the Exhibit had not given the appellant notice of what he was accused of and appearing before the panel for. The full content of the said Exhibit KGA 10 does not bear out that stance of the Court of first instance and for a clearer view I shall recast it hereunder as follows:-
“From: The Chairman,
Ad-Hoc Disciplinary Committee
To: Mr. Akin Ariobieke
Asst. Manager(O&M)
District Office
Calabar.
AD-HOC DISCIPLINARY COMMITTEE PROBING THE ALLEGED CASE OF UNAUTHORISED MAINTENANCE WORK AT CALABAR WOOD COMPANY LIMITED, CALABAR.
INVITATION TO APPEAR
You are hereby invited to appear before the above named committee between 16th to 19th July, 1996 from 8.30am at the District Office, Calabar.
Please endeavour to appear.
Sgd: Engr. J. I. AHAMIOJE
CHAIRMAN.
…………………….E…………………….
It is a fact that the main body of the letter of invitation was tersely crafted to proffer that appellant appear at the committee at a specified time, date and place and no more. That cannot be read in isolation to the whole body of the letter as the title left nothing for conjecture or speculation on to what was at foot. That title of the letter stated clearly thus:-
“AD- HOC DISCIPLINARY COMMITTEE PROBING THE ALLEGED CASE OF UNAUTHORISED MAINTENANCE WORK AT CALABAR WOOD COMPANY LIMITED, CALABAR.”
Indeed Exhibit KSA-10 did not just fly in without a foundation on it had come after a query by the Authority to appellant and an interdiction. For case of reference, I shall quote the correspondences between the parties hereunder, viz:-
The query Exhibit B at page 52 of the record reads:-
“General Manager (D&M)
Enugu Zone
25th June, 1996
Ref: 31/4.5/00xi/96/3236 Mr. Akin Arobieke
Assistance Manager (O&M)
Ufs District Manager
QUERY
It has been brought to the knowledge of this management that you coordinated and supervised the unauthorized extensive electrical maintenance job at the Calabar Wood Company Limited, in conspiracy with Mr. O. J. Ojira and others, for monetary benefit from the Wood Company. The report received reveals that:-
1. You coordinated and supervised the maintenance and service work on 3 Nos. 750/CVA Transformers 1, 2 and 3.
2. You coordinated and supervised the maintenance works in 5 Nos. of 11 KV OCB panels.
Your action amounts to general misconduct and engagement in trade in competition with the Authority, or in conflict with the interest of the Authority, both punishable by dismissal from the service of the Authority in accordance with Regulation 33.62(5) of the Authority’s condition of service – 1978 Edition.
You are to show cause in writing within 48 hours of your receipt of this letter as to why you should not be disciplined in accordance with the above cited regulation.
You should acknowledge the receipt of this letter by signing on the attached copies.
Signed
Engr. J. O. Ogbonna
General Manager (D & M) Enugu Zone
“ACKNOWLEDGMENT
I hereby acknowledge the receipt of your letter mentioned above.
Name: A. Arobieke
Designation: A/M (O&M)
Date: 2216186
Signed…..
Time: 11.40 am”
The Court of Appeal faced with the appeal and the materials before it had no hesitation in holding as follows:-
“As I said earlier, if the learned trial judge had given due and equal regard or consideration to the appellant’s case, he would have clearly seen and held that the respondent has had sufficient notice of the allegation of misconduct against him which had been conveyed to him via the letter of query (Exhibit “B”) and that of his invitation to attend the panels proceedings. It is boldly written in the said letter of invitation (Exhibit – :KGA 10″) that the respondent was invited to appear before the Ad-hoc Committee probing the alleged case of unauthorized maintenance work at Calabar Wood Company. This is also the same allegation on which he was accused of in the earlier letter of query (Exhibit “B’). It is relevant to reproduce the content of Exhibit “KGA 10” (which is in a short form or wording) as follows:-
“Ad-Hoc Disciplinary Committee probing the alleged case of unauthorized Maintenance Work at Calabar Wood Company Limited”.
INVITATION TO APPEAR:
You are hereby invited to appear before the above named Committee between 10th to 19th July, 1996 from 8.30 am at the District Office Calabar.
Please endeavour to appear.
Signed:- Engr. J. I. Ahamioje
Chairman.”
For a fact, the Court below had tackled the matter of fair hearing or lack of it as postured by the appellant in these words:-
“Fair hearing and fair trial are said to be synonymous and the test for its observance is not based on technicality but on the substance of the proceedings and the objective view or opinion of a fair minded person who was present throughout the proceedings whether in his opinion justice has been done to the parties in the case See Mohammed v Kano Native Authority (1968)1 All NWLR 424 and CBN v Kotoye (1989) 1 NWLR (Pt. 98) 419.” (See also Bakoshi v Chief of Naval Staff (2005) All FWLR (Pt.248) 1719.
The Court below further stated as follows:-
“This finding or conclusion is with due respect to the said learned trial judge erroneous and was in total disregard of the plain contents of Exhibit “KGA-10” and the circumstances of the case in which the respondent had been issued with a query Exhibit “B” which he answered (In Exhibit “C) both on the same allegation of misconduct against him and on the same topic of carrying out an Unauthorized Maintenance Work at Wood Company.”
…………………….F…………………….
My Lords, having set out the differing conclusions of the trial Court as against that of the Court below, I need at this stage to restate the position of this Court which has been referred to again and again and that is, that what constitutes fair hearing depends on the circumstances of each case. However in doing that, it is the accepted law that the basic procedural and other requirements of the rule of natural justice must be served by every Tribunal or authority whose decision will affect the right of another. In this, I will seek in aid the case of Legal Practitioners’ Disciplinary Committee v Gani Fawehinmi (1985) 2 NWLR (pt. 7) 300 at 347 – 348 per Eso JSC thus:-
“It is not easy to place a Tribunal in the compartment of purely administering, predominantly administering or one with judicial or quasi-judicial function. In my view, a pure administrative Tribunal may turn judicial once it embarks on judicial or quasi-judicial adventure.
The test to mind should be the function the Tribunal performs at a particular time. During the period of in-course into judicial or quasi judicial function, an administrative body must be bound in process thereof to observe the principles that govern exercise of judicial function. ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence. Merely to describe a statutory function as administrative,judicial or quasi-judicial is not by itself sufficient to settle the requirement of natural justice. This certainly leaves it open for the Court to go into the substance of the very act of then Tribunal rather than form of description.”
In his own contribution Oputa JSC put across the following at page 392 paras. D-G thus:
“The debate over what constitutes a judicial Tribunal, a quasi-judicial Tribunal, a domestic Tribunal, a Tribunal simpliciter, arbitrament, arbitral proceedings, forum competent etc. will certainly go on as an academic exercise; but once a body of persons by whatever name called are vested with authority to hear and determine particular issues or dispute either by consent of the disputants or by an order of Court, or by provisions of a statue, such a body will be required to carry out its functions with that fairness and impartiality which the rules of natural justice dictate.
I may now deal with Chief Williams’ contention that the Disciplinary committee is not bound by the rules of natural justice because the respondent will have ample opportunity of being heard by the Appeal Committee. My learned brother, Aniagolu, JSC has dealt adequately with this issue.
I agree with him that the direction of the Disciplinary committee is a decision which may affect and, may be, adversely the civil right of the respondent. Whether it is final or not is irrelevant to the observance of the rule of natural justice in reaching the decision. I can see no valid reason why if the principle of natural justice have to be applied to a Tribunal entrusted with final decision, the same should not be true of a Tribunal which have to decide a preliminary point which may affect the right of the Parties.
It is now settled law that an administrative panel such as the AD-HOC disciplinary committee in the case at hand in its enquires may not necessarily strictly adhere to such rules of natural justice such as exist in a Court as known to our law however it is standard and I dare say basic that the rules of fair hearing- natural justice can neither be compromised nor waived. The reason is that any infraction to that basic rule of fair hearing should automatically bring to naught whatever had been done in the process of the inquires embarked upon by the panel, judicial or administrative. See Federal Polytechnic Mubi v T.L.M Yusuf (1991) 1 NWLR (Pt. 165) page 81 at 100; Olaniyan and Ors v University of Lagos & Anor. (1985) 2 NWLR (Pt. 80) 25.
Interestingly from what I can see, the principles of natural justice were well pushed up by learned counsel for the appellant and there is no dispute in that regard. The point of divergence starts from whether or not those basic rules were applied to the appellant by the Ad-Hoc Committee. The appellant posits negatively stating that he was invited without knowing what he was called for. In taking that stand, he anchored on just those two lines in Exhibit KGA-10 asking him to appear before the panel. The respondent disagreeing with that stance says the whole body of the letter of invitation, the same Exhibit KGA-10 ought to be fully read not picking a part of it and that when fully read, it would clearly be seen that appellant was not left in the dark on what he was being invited to appear for. The Court below went along the path trod by the respondent and said so in clear terms as follows – per Adamu J.C.A:-
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It is also my view on the point so raised that I have already dealt with the said point in my above consideration and upon my findings that there was no breach by the Ad-Hoc Committee of the respondent’s (i.e. the appellant herein) right of fair hearing or any violation of the rules of natural justice on the part of the said committee in its proceedings. It is to be pointed out that although the respondent’s employment which was terminated by the appellant is one with statutory flavours in which was investigative or administrative panel is bound or required to observe the provision of the statue regulating the employment along with the common law principles, all the four conditions stipulated under Article 34.01 as reproduced in the respondent’s brief are based on and are in accord with the doctrine or rules of natural justice and fair hearing as agreed or conceded by the said respondent at page 24 of his brief. Consequently, my above findings that the Ad-Hoc Committee in the present case had complied substantially with the rules of natural justice has overtaken or provided an answer to the respondent’s complaint based on the alleged non-compliance with the said rules (on conditions of service) which are themselves based on the principles and rules of natural justice and fair hearing.”
Having considered the preliminary angle of whether in the first place, the appellant was given a full opportunity of knowing why he was invited before the panel with attendant advantage of preparing for his defence apart from cross examining the witnesses which I see as having been done in keeping with the law and in line with fair hearing or natural justice. The follow up would be, if in the course of the proceedings the facts were well laid out in such a way that the findings and conclusions of the panel would be adjourned meritorious. The Court below had reacted thus:-
“The learned trial judge in this judgment also failed to consider other pieces of evidence in the case in favour of the Appellant which show that the Respondent, apart from having a prior notice of the Appellant’s allegation against him also appeared before the Ad-Hoc Committee when some of the witnesses gave evidence and he in fact put questions to the said witnesses in cross examination… (see also Exhibit AA (the proceedings of the Ad-Hoc Committee at page 143 thereof where the Respondent asked one of the witness (Mr Akioyemen) a question in cross-examination. He could not have done so if the evidence was taken behind him as alleged by the learned counsel.”
From what I can see, the appellant seems to be guiding the Court on a narrow garden path in the belief that the panel not being legally trained would be hamstrung on the strict legal procedures of a properly constituted Court in which case they would be found wanting. Thoroughly, the Court below saw through this scheme and dispatched it as follows:-
“The calibre or status of the member of the panel who were laymen should also be considered thus the committee would not be required to observe or to follow the strict procedures similar to that of a Court of law and even when it refuses to give the Respondent oral hearing at all or the right to cross-examine the witnesses or even where it obtained some of its evidence from other quarters or sources beyond the Appellant, it would not be regarded as denying him fair hearing or acting contrary to the rules of natural justice.” Reliance was made on Queen v Director of Audit (1961) NSCC 292; Adedeji v Police Service Commission (1967) NSCC 292; Eperokun v Unilag (1986) 4 NWLR (pt. 34) 162 at 173 amongst others.
That dealt a mortar brow on what the trial Court which rendition of the trial Court is thus:-
“From the submission, the fundamental issue that calls for determination here is whether or not the Ad-Hoc Disciplinary Committee set up by the respondent on whose report and recommendation the respondent acted upon in terminating the Applicant’s the appointment accorded the applicant the right to fair hearing in their deliberations before arriving at their finding and decisions. If the answer is yes, this Court will uphold the proceedings, findings and recommendation of the committee, but if the answer is in the negative, the Court shall declare same unconstitutional, null and void and will quash it accordingly.
The Court below in setting aside the earlier decisions of the trial Court had held thus:-
“It is also my view on the point so raised that I have already dealt with the said point in my above consideration and upon my finding that was no breach by the Ad-Hoc Committee of the respondent’s
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(i.e. the appellant herein) right of fair hearing or any violation of the rules of natural justice on the part of the said Committee in its proceedings. It is to be pointed out that although the respondent’s employment which was terminated by the appellant is one with statutory flavour in the investigative or administrative panel is bound or required to observe the provision of the statute regulating the employment along with the common law principle, all the four conditions stipulated under Article 34.01 as reproduced in the respondent’s brief are based on and are accord with the doctrine or rules of natural justice, and fair hearing as agreed or conceded by the said Respondent at page 24 of his brief. Consequently, my above finding that the Ad-Hoc Committee in the present case had complied substantially with the rules of natural justice had overtaken or provided an answer to the respondent’ complain based on the alleged non-compliance with the said rules (on the condition of service) which are themselves based on the principles and rules of natural justice and fair hearing.”
From what is available, the Court of Appeal was in order and went along the enabling law in upturning and setting aside the judgment of the trial Court which failed to evaluate the entire evidence before him and rather went into the narrow compass the appellant had led him thereby producing a decision perverse and invalid which I have no difficulty in discerning and intervening to reversal that wrong decision. The conclusion is that there is nothing on which I can justify on interference with what the Court below did. Rather the situation is such that I acknowledge that the Court below was correct in re-evaluating what the Court of first instance did and coming to the proper decision.
In light of the foregoing, I have no hesitation in stating that this appeal lacks merit and have no option than to dismiss it. Appeal is hereby dismissed and I affirm what the Court of Appeal did in setting aside the judgment of the trial High Court and for effect, the Disciplinary Committee of the respondent was correct in its findings and conclusions and the termination of the appellant’s appointment by the respondent correct and effective.
I make no order as to costs.
OLUKAYODE ARIWOOLA, J.S.C.: I have had the opportunity of reading in draft, the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning and conclusion that the appeal is devoid of any merit. It deserves to be dismissed. Accordingly, I too dismiss the appeal and affirm the decision of the Court below.
I abide by the consequential orders including the order on cost.
JOHN INYANG OKORO, J.S.C.: The judgment just delivered by my learned brother, Mary Ukaego Peter-Odili, JSC was made available to me in draft in which I read before now. For the reasons advanced to reach the conclusion that this appeal is devoid of merit, I agree entirely with the judgment. The facts upon which the appeal is anchored are well encapsulated in the lead judgment. I shall therefore make a few comments in support of the judgment only.
The main complaint of the appellant in this appeal is that the Ad-hoc Disciplinary Committee which investigated him did not observe rules of Natural Justice. That Exhibit KGA 10 which is a letter inviting him to appear before the panel did not disclose the case he was expected to face. It is his contention that the contents of Exhibit B, the query earlier issued to him does not contain adequate information to that effect.
As was effectively explained in the lead judgment, a combination of Exhibits B and KGA 10 – the query which explained the complaint against the appellant and the letter of invitation of the appellant to the Ad-hoc Committee investigation respectively, in my opinion, put the appellant on notice of the case he was expected to defend before the panel. Accordingly, his complaint against the Ad-hoc committee does not fly at all. Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before a Court or Tribunal, an Ad-hoc Tribunal inclusive. Where parties are given opportunity to be heard and the charge or complaint against the party standing trial or being investigated made available to them, they cannot complain of breach of fair hearing principles. See Darma v Ecobank Nig. Ltd. (2017) LPELR – 41663 (SC), Prof. Folarin Shyllon v Mrs Judith Asein (1994) LPELR 3071 (SC), (1994) 6 NWLR (Pt 353) 670.
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I have carefully considered the judgment of the lower Court but have not seen where the principles of natural justice were breached by the Ad-hoc panel. Rather, they were properly complied with. The Court below was therefore right to set aside the judgment of the trial Court and to uphold the report of the Ad-hoc committee which investigated the appellant.
With the little I have said above and the fuller reasons marshaled in the lead judgment, I agree that there is no merit in this appeal. I also dismiss same, I abide by the order as to costs.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment just delivered by my learned brother, Peter-Odili, JSC, and I agree with him that this Appeal lacks merit.
The Appellant, who is an employee of the Respondent, allegedly co-ordinated and supervised unauthorised works at another Company. The Respondent issued him a query that clearly indicated the offences and breaches levelled against him. Dissatisfied with Appellant’s reply to the query and that of the other employees, who allegedly carried out the unauthorized works under the direct supervision of the Appellant, the Respondent set up an AD-HOC DISCIPLINARY COMMITTEE, and the letter inviting him to appear before the said committee reads – Ad-Hoc Disciplinary Committee probing the alleged case of Unauthorized Maintenance Work at Calabar Wood Company Limited. Calabar.
INVITATION TO APPEAR
You are invited to appear before the above committee named committee between 16th to 19th July, 1996 from 8.30am at the District Office, Calabar.
The Appellant contends inter alia that he was denied a fair hearing by the Committee because it is evident from the face of the invitation letter that the allegation against him is absent, and the Court of Appeal erred in setting aside the trial Court’s finding that he was denied fair hearing.
The trial Court held that the said letter [Exhibit KGA 10] ought to have mentioned or specified the charge or the allegation against him, and that there is nothing on the face of Exhibit KGA 10 to suggest the slightest charge against [him] by any stretch of imagination”.
The Court of Appeal, however, held that if the learned trial Judge had considered his case properly, he would have seen that the Appellant “had sufficient notice of the allegation of misconduct against him, which had been conveyed to him via the letter of Query Exhibit B] and that of his invitation to attend the panel’s proceeding”, and it is right. The Appellant was invited to appear before the Ad-hoc Committee probing the alleged case of unauthorized maintenance work, and the same allegation is set out in the earlier query, to which he responded.
So, the Court of Appeal’s conclusion that the trial Court’s finding was erroneous and in total disregard of the plain contents of the letter of invitation, and the circumstances of this case, in which the Appellant had been issued with a query, which he answered, on same allegation, cannot be faulted, and I see no reason to interfere with that decision.
Thus, I also dismiss this Appeal. I also make no order as to costs.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Mary Peter-Odili JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My Learned brother has, as usual, set out elaborately and comprehensively the facts of this case and the Law applicable in reaching his decision. I can therefore only add a few words in support of the lead judgment.
The Appellant’s main complaint against the decision of the lower Court is that he was not accorded fair hearing because there was no formal charge against him by the Ad-hoc Committee and that witnesses called before the committee testified behind him.
In dealing with this complaint, the lower Court before which the same complaint was raised, at pages 297-298 of the printed record of this appeal said:-
The law is well settled that what constitutes a fair hearing or its breach depends on the circumstances of each case and in the present case in which the ad hoc panel or committee was merely administrative, investigative or exploratory one, with power only to investigate the complaint against the respondent and to make appropriate recommendation to the management and without any power to decide finally on his right, the said committee was not exercising the role or function of a Court of Law by trying the respondent for any offence of crime. The caliber or status of the members of the panel who were laymen should also be considered.
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I agree entirely with the lower Court that the ad-hoc committee that was set up by the respondent was an administrative panel which did not require framing of formal charges against the Appellant. Under the common Law, before an employer can dispense with the services of his employee, he needs to afford the employee an opportunity of being heard before exercising his power of dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime. There is no requirement that there must be a formal charge against the employee. In Yusuf v. U.B.N. PLC (1996) 6 NWLR (Pt. 457) 632 at 645 Para A, this Court per Onu JSC held:-
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 representation in his own defense. 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.
In the instant case, the appellant was duly queried. The query Exhibit B, at page 52 of the printed record of this appeal contains all the allegations against the Appellant for which he was required to react. The title of the letter of invitation from the ad-hoc committee clearly informed the Appellant that he was invited in respect of the unauthorized maintenance work at Calabar wood Company Limited. The proceedings conducted by the Ad-Hoc Committee clearly shows that witnesses including officers who the Appellant used during the unauthorized works, testified before the committee in the presence of the Appellant who put questions to them. In my view, the lower Court was right when it held that the Appellant was accorded fair hearing. Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. It is synonymous with fair trial and implies that every reasonable and fair minded observer who watches the proceedings should be able to come to conclusion that the Court or Tribunal has been fair to all the parties. In the instant case, the Ad-Hoc Committee not only disclosed to the appellant the allegations against him, but took the testimonies of witnesses in his presence and he was allowed to cross-examine those witnesses. I am therefore satisfied that the Ad-Hoc Committee complied with the provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and so I hold. See Baba v N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388,Okafor v. The A.G- Anambra State (1991) 6 NWLR (Pt. 200) 659.
For these few words and the more detailed reasoning in the lead judgment of my Learned brother Mary Peter-Odili, this appeal shall be and it is hereby dismissed. I abide by all the consequential orders made in the said judgment including order as to costs.
Appearances
E.O. E. Ekong, Esq. with him, I. M. ANANA For Appellant
AND
Imo Inyang, Esq. with him, Mfonobong Imo Inyang, Esq. For Respondent
Appearances
E.O. E. Ekong, Esq. with him, I. M. ANANA
For Appellant
AND
Imo Inyang, Esq. with him, Mfonobong Imo Inyang, Esq.
For Respondent