CORAM
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
MOHAMMED MUSTAPHA
PARTIES
JOHN HOLT PLC
MR. ECHEZONA NZERIBE
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent was an employee of the Appellant since 1998 and rose to the rank of Regional Manager, North. His duties includes charge of sales, supervision of branches under his control, ensuring security of the company’s stock and other assets in his care as well as ensuring the prompt preparation of weekly KPI reports which is a primary assessment in terms of sales refund or request of stocks in a particular branch at any given week in the month. It was alleged that the Respondent colluded with the Branch Manager of Abuja, Mr. Mohammed to sell three generators of the Appellant without remitting the money to the Appellant or notifying the head office. The generators was discovered missing in December, 2011 but the Respondent did not bring it to the attention of the Appellant or reflect same in his KPI weekly or monthly report. That Mr. Chukwurah the sale Manager sold one of the 150 KVA generator and gave the money to the branch Manager Mohammed Aliyu who failed to remitted same to the Appellant. On the 1st of February, 2012 he summoned a branch meeting and in attendance were the Abuja Branch Manager, Aliyu Mohammed and the Branch Accountant Aroyo Tayo; Aliyu Mohammed failed to give account of the missing generators. In May, 2012, the Respondent sent emails, on the situation to the Divisional Chief Accountant and other superior officers seeking for assistance and asking for permission to get the police to arrest Mohammed Aliyu. On the 3rd of May, 2012, he was issued with a letter of indefinite suspension by the Appellant because of the three missing generators in Abuja Branch which is under his supervision and later dismissed by the Appellant. This caused the Respondent to institute an action against the Appellants at the National Industrial Court of Nigeria Abuja, claiming for a declaration that his suspension and eventual dismissal was unlawful; an order for payment of all his remunerations, allowances and arrears of salaries owed; an order for payment of exemplary and punitive damages and cost of the suit. The Appellant filed its statement of defence and counter-claimed and at the end of trial, the lower court entered judgment in favour of the Respondent. Aggrieved, the Appellant has appealed against the judgment of the lower court vide a Notice of Appeal to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the lower Court was right when it held that the suspension and subsequent summary dismissal of the respondent by the appellant are wrongful.”
RATIONES DECIDENDI
ISSUE FOR DETERMINATION – FORMAT OF AN ISSUE FOR DETERMINATION
“An issue for determination must be concise and devoid of irrelevant complexities and frivolities and must be such as to ease the comprehension of matters to be adjudicated upon by the Court. An issue for determination should not consist of multiple question or two different issues. See Unity Bank Plc Vs Olatunji (2015) 5 NWLR (part 1452) 203 at 219; Uwaifo Vs Uwaifo (2005) 3 NWLR (part 913) 479 and Ezeugo Vs State (2013) 9 NWLR (part 1360) 508. In the instant case, the issues formulated by the appellant consisted of multiple questions and therefore lacked the distinctive qualifies of well-crafted issues for determination. An issue for determination should not comprise of other issues as in the instant case. It should not be a composition of two different issues. See Ikare Community Bank (Nig.) Ltd Vs Ademuwagun (2005) 7 NWLR (Part 924) 275 and Iloabuchi Vs Ebigbo (2000) 8 NWLR (Part 668) 197. Learned Counsel for both parties did not indicate which issue relates to which ground of appeal. –
CONTRACT OF EMPLOYMENT – ON WHOM LIES THE BURDEN OF PROVING WRONGFUL DISMISSAL FROM EMPLOYMENT
“In an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of contract of employment and in what manner the said terms were breached by the employer. See Angel Spinning & Dyeing Ltd Vs Ajah (2000) 13 NWLR (part 685) 532 and U.B.A Plc Vs Oranuba (2014) 2 NWLR (part 1390) 1.-
CONTRACT OF EMPLOYMENT – WHETHER IN A CONTRACT OF EMPLOYMENT WITHOUT STATUTORY FLAVOUR, A MASTER CAN RELIEVE THE SERVANT OF HIS JOB WITH OR WITHOUT ESTABLISHING THE REASON
“It is settled law that in a contract of employment between a master and a servant without statutory flavour as in the instant case, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason. But where the master gives a reason, the burden rests on him to establish that reason -Olatunbosun vs Nigerian Institute of Social and Economic Research Council (1988) 3 NWLR (part 80) 25. See also Olaniyan Vs University of Lagos (1985) 2 NWLR (part 9) 599 and Oforishe Vs N.G.C. Ltd (2018) 2 NWLR (part 1602) 35 at 41 SC. The master must in addition give the servant a fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria. –
CONTRACT OF EMPLOYMENT – ON WHOM LIES THE BURDEN OF ESTABLISHING REASON FOR DISMISSAL, WHERE REASON IS GIVEN FOR SUCH DISMISSAL
“The law is that where reason is given for dismissal as in instant the case, the burden is on the appellant to establish that reason -UBA Plc Vs Oranuba (2014) 2 NWLR (part 1390) 1 at 5. See also Olatunbosun Vs Niser Council (1988) 3 NWLR (part 80) 25. Where allegations have been made against an employee, the employer is entitled to set up a panel to investigate the allegations. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written before it. Once the panel concludes its inquiry and found fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute or explain in defence thereto, before the employer can dispense with his services – Baba vs N.C.A.T.C (1991) 5 NWLR (part 192) 388. In the instant case, although an investigation was conducted, the respondent was not invited before the panel or committee of investigation. This fact was admitted by the appellant when it admitted that the respondent would not know of the investigation since he was on suspension. Where the appellant as defendant pleaded that the respondent as claimant was suspended for non-performance and concealing of information, his summary dismissal cannot be justified in the absence of opportunity given to the claimant/respondent to explain or deny or justify the allegation against him. The proper procedure to adopt in the situation is as laid down by the Supreme Court in the case of Baba vs N.C.A.T.C (supra) at 418 – 419 per Nnaemeka Agu JSC.
“Where some allegations have been made against an employee.the employer is entitled to set up a panel to investigate the allegations, such an investigating panel is not a Court of trial, so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source. The panel of inquiry not being a Court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had prima facie been made out which point to the fault of any person, the employer must first inform such an employee of points case against in the him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as basis for dispensing with his services.”
On the application of principles of fair hearing, the Supreme Court at page 415 of the case observed:
“Where a body, whether judicial quasi – judicial, administrative or executive in inception acts judicially in the sense that it is to determine the civil right and obligations of a person or to find him guilty or liable to a fault, then he must be given a hearing before the issue can be property decided. That is the intendment of Section 33(1) of the 1979 Constitution and is also the essence of fair hearing as a Constitutional right. In such cases, the hearing body must be seen to have observed all the implications and attributes of fair hearing.”
Also in the case of Olafimihan Vs Nova Lay – Tech Ltd (1998) 4 NWLR (part 547) 608 at 611 the Court held:
“In an action for wrongful dismissal where the employer contended that the employee was removed or dismissed for specific misconduct, the removal or dismissal cannot be justified in the absence of adequate opportunity afforded to the employee to explain, justify or defend the alleged misconduct.”
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SUMMARY DISMISSAL – EFFECT OF A SUMMARY DISMISSAL WHERE AN EMPLOYEE IS NOT GIVEN AN OPPORTUNITY TO DEFEND HIMSELF ON THE ALLEGATIONS MADE AGAINST HIM
“In the instant case since the respondent was not given any opportunity to defend himself on the allegations made against him, this summary dismissal was clearly wrongful. This is because with these principles the appellants did not observe the principle of fair hearing before dismissing the respondent summarily. In Onyekwuluje Vs Benue State Govt. (2015) 16 NWLR (part 1484) 40, the Supreme Court held that when a party who is entitled to be heard is denied fair hearing before a decision affecting him is made then by virtue of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, that decision cannot bind him because he is not given the opportunity of being heard”. –
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|
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