Border Bother – Disciplinary panel can try an employee on allegations of misconduct bordering on criminality
ADENIYI v. EJIGBO LOCAL GOVERNMENT
COURT OF APPEAL (AKURE DIVISION) (DENTON WEST; OWOADE; JOMBO-OFO, JJ.CA)
Until his dismissal on allegations of fraud and embezzlement, the Appellant was employed in the Respondent’s Primary Health Care Centre as a payment voucher clerk. The Respondent alleged that the Appellant defrauded it of N527,189.44 (Five Hundred and Twenty Seven Thousand One Hundred and Eighty Nine Naira, Forty Four Kobo) and established a panel of inquiry to investigate the allegation.
While the matter was being investigated by the panel of inquiry, the Respondent laid a complaint with the police against the Appellant and five other persons and the police commenced the prosecution of the matter. The charge against them was however withdrawn.
The Respondent eventually dismissed the Appellant vide a letter signed by its Chairman on the grounds that the report and recommendation of the panel of inquiry indicted him for fraud and embezzlement of public funds. The letter also stated that his dismissal was in line with Regulation 39(f) of the Unified Local Government Staff Regulations 1978 (as amended) (“the 1978 Regulations”).
The Appellant commenced an action at the High Court of Osun State seeking among other things, a declaration that his dismissal is illegal, unlawful, null and void and of no effect whatsoever; and an order of mandatory injunction compelling the Respondent to reinstate him with immediate effect.
The trial court dismissed the Appellant’s claims. Dissatisfied, he appealed to the Court of Appeal. One of the questions asked of the appellate court was:
“Whether having regards to the circumstances of this case the plaintiff/appellant was properly and lawfully dismissed by the defendant/respondent.”
In arguing the appeal, counsel to the Appellant contended that from the provisions of paragraph 39(f) of the 1978 Regulations, it is clear and that the Local Government Service Board (now Local Government Service Commission) was the authority vested with power to dismiss the Appellant. He argued that none of the five members of the panel of inquiry set up by the Respondent was a member of that board.
He further argued that the contract of employment is statutory and it must be terminated in accordance with the procedures clearly contained in the relevant statute, and any other method or manner of dismissal that is contrary to that envisaged by the statute is null and void.
Counsel also argued that where an employee has been dismissed on an allegation of crime, the allegation must first be proved before a competent court of law or judicial tribunal before the dismissal can stand. He stated that the employee must be given adequate opportunity to explain himself before a court clothed with criminal jurisdiction.
Counsel to the Respondent on the other hand argued that the Appellant’s verdict of guilt as found by the panel was justifiable as it was proved beyond reasonable doubt. It was the Respondent’s contention that it is not a requirement of the Constitution that an employee must be tried by a court of law before he can be summarily dismissed for gross misconduct involving dishonesty and bordering on criminality. He also contended that it is not the correct position of the law to state that an employer will have no power to exercise disciplinary measures on an employee unless his guilt or otherwise is determined in a criminal court.
The Court of Appeal in unanimously allowing the appeal found that while a disciplinary panel may try an employee for misconduct bordering on criminality, the panel of inquiry as constituted by the Respondent was incompetent to make any findings on the criminal offence of stealing.
The court held as follows:
“The case of Yusuf v. U.B.N. (supra) merely confirms the ability of inferior tribunals to try employees for misconducts as distinguished from criminal offences even when factually the facts leading to the misconduct do bother [sic] on criminality.
In Yusuf v. U.B.N. Ltd. (supra), the appellant who had been in the employment of the respondent was dismissed from service for gross misconduct. This was in connection with his involvement in the negligent and irregular paying of the sum of N4,665.00 which was wrongly diverted to the account of his friend. The dismissal of the appellant was upheld by the trial court and confirmed by the Supreme Court.
A glaring difference between the facts of Yusuf v. U.B.N. Ltd. (supra) and the instant case is that the appellant herein was not dismissed from his employment for reason of gross misconduct but through Exhibit A5 for fraud and embezzlement, the appellant herein was not tried for misconduct but through Exhibit D3 for the offence of stealing.
In the circumstances and with great respect to the learned counsel for the respondent the case of Yusuf v. U.B.N. Ltd. (supra) is distinguishable from the facts and circumstances of the instant case and the case does not in any way help the respondent to this appeal.
The broad rationale that runs through the decisions of the Supreme Court in the cases of Denloye v. Medical and Dental Practitioners Committee (supra) Dr. Sofekun v. Akinyemi & Ors. (supra) and Garba & Ors. v. University of Maiduguri (supra) is that an employee or student as the case may be, may not be justifiably labelled as “criminal” by an inferior and/or administrative panel or tribunal which has no authority, competence or jurisdiction to try criminal offence; any decision based on such trial of criminal offences strictly so called by such inferior Tribunal is accordingly a nullity.
In the instant case, the investigating panel of enquiry set up by the respondent lacks the competence to find the appellant guilty of the criminal offence of stealing.”
Counsel:
E. A. Gbadegesin for the Appellant
Rotimi Akintola for the Respondent
This summary is fully reported at (2014) 1 CLRN
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