Facts
THE Respondent, an employee and a management staff of the Appellant was accused by the Acting Chairman of the Appellant for being responsible for adverse publications against the Appellant.
Despite the Respondent’s denial, his computer and telephones were seized and he was made to write a statement.
Thereafter, the Acting Chairman redeployed him from heading the Training Institute and placed him in the Acting Chairman’s office without any designation or desk.
The Respondent was subsequently queried and suspended for two years without pay and, on recall, the Respondent was later demoted and made to write a letter of apology and was requested to forfeit his outstanding salaries.
The letter was signed by the secretary of the commission on the orders of the Acting Chairman.
The initial allegation against the Respondent was labelled offence against discipline but was demoted on the offence of breach of confidence.
The Respondent was proceeded against on the provisions of the Staff Hand Book which was not made by the commission as required by law but by the Chairman of the Appellant.
With issues joined by the pleadings, the matter proceeded to trial with the respondent as sole witness for the claimant while the Appellant called four witnesses.
Parties filed and adopted written address and after due consideration, the National Industrial Court of Nigeria sitting in Abuja partly entered judgment for the Respondent.
The Appellant aggrieved by the said decision appealed to the Court of Appeal.
Issues for determination
The Court determined the appeal on the following issues:
- Whether the judgment delivered on February 26, 2019 when the learned trial judge has lost his recollections of the facts in issue is not a nullity, having been delivered outside the ninety(90) days allowed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
- Whether the learned judge did not err in law when it held that the Chairman of the defendant (now appellant) and the defendant are two separate legal entities and that the defendant’s Staff Regulations Handbook 2007 is invalid on the ground that it was approved by the Chairman of the defendant and not by the defendant.
- Whether the learned trial judge did not err in law when it held that the defendant (now appellant) breached the claimant’s (now respondent) right to fair hearing.
- Whether the learned trial Judge, having nullified the appellant’s Staff Regulation, was right in re-instating the respondent to his former rank of Detective Commander on grade 17, a rank created by the appellant’s Staff Regulation.
Appelant’s Submission
The Appellant on issue one submitted that the proceedings were concluded on the 15th day of November, 2018 when the parties adopted their final written addresses, that from the day the proceedings were concluded on the 15th November, 2018 to when the trial Judge delivered his Judgment on February 26, 2019 the 90 days allowed by the Constitution has elapsed. The Appellant further contended that even though Subsection 5 of the 295 provided that the decision of the Court shall not be set aside or treated as nullity on this ground of non-compliance unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice, they submitted that the delay by the trial judge to deliver judgment within its time limit prescribed by the Constitution when the facts in issue were fresh in his memory led to muddling up issues in his judgment which occasioned a miscarriage of Justice.
As regards issue two, the Appellant submitted that the learned trial judge was wrong in holding that the Chairman of the Appellant and the Appellant are two separate legal entities and that the Staff Regulation Handbook 2007 is invalid on the ground that it was approved by the Chairman of the defendant and not by the Board of the Appellant. The Appellant contended that the Staff Handbook was made pursuit to Section 9 of the Appellant Establishment Act, 2004 which authorised the Appellant to make its own Staff Regulations providing for conditions of service for its staff, appointment, promotion and disciplinary control of its staff. That Sub-Section 9 (2) of the Act provides that the Staff Regulations shall not have effect until it is approved by the Appellant, and when approved the regulation may not be published in the gazette but the Appellant shall cause it to be brought to the notice of affected persons from time to time. That evidence was led at the lower Court that the handbook was approved by the Appellant but the trial Judge held that it was approved by the Chairman.
In arguing issue 3, the Appellant submitted that the learned trial Judge erred in law when he held that the defendant breached the claimant’s fundamental right to fair hearing. The Counsel argued that the law is trite that it is not in all cases that a party indicted of wrong doing must appear before an administrative panel of inquiry, the administrative panel of inquiry can dispense with the appearance of the party if on the evidence before the Tribunal, the Tribunal is of the opinion that the matter can be adequately dealt with without the appearance of the party. He cited the case of Obonganwan Mary Ntewo V University of Calabar Teaching Hospital & ANOR (2013) LPELR-20332 (CA).
Arguing issue 4, the Appellant submitted that the trial Court was wrong to have reinstated the Respondent back to his former rank when the Staff Regulation Handbook has been declared invalid by the trial Judge. The law is trite that a Court cannot approbate and reprobate, cited FRN V Iweka (2011) LPELR-9350 (SC) and Nwachukwu V Ekpiken (2014) LPELR-24263(CA).
Respondent’s submission
In arguing issue 1, the learned counsel to the Respondent submitted that the case of the Respondent at the trial was based purely on documentary evidence and the Appellant failed to show which part of the judgment of the trial Court where re-collection of facts were lost and those issues of facts muddled up.
On issue two, it was submitted that the Appellant erroneously assumed the Respondent’s case at the trial. Counsel argued that the case of the Respondent at the lower Court is that the EFCC Staff Regulation Handbook was not approved by the Board of the Commission as required by Section 9 of the EFCC Establishment Act. The Chairman had no powers to singlehandedly approve the Handbook.
Arguing issue three, the Respondent submitted that it is glaring that the Acting Chairman was the accuser, the initiator of the discipline, the author of the suspension and also the Judge who pronounced the judgment and meted out punishment. Counsel argued that the Commission had no say in the disciplinary action and the Respondent was not given the opportunity to appear before any panel for him to defend himself. The Respondent submitted that the whole disciplinary procedure is bereft of fair hearing and contrary to the safeguard and procedure provided under the Public Service Rules, 2008 meant to ensure that the requirement of Section 36 of the Constitution is met. The Respondent also submitted that the indefinite suspension of the Respondent for over two years is, to use the language of the Court in Sunday Emeje v. National Institute for Pharmaceutical Research and Development (2010) LPELR-8986(CA) was “a terrible thing”. It is also contrary to the provisions of the Public Service Rules and also a breach of his right to fair hearing within a reasonable time.
Resolution of the issues
Resolving issue one, the Court stated that the language of the provision of Section 294(1) of the 1999 Constitution is straight forward and does not require any special aid in its interpretation. The Court stated further that Section 294(1) is not read in isolation but always in conjunction with Subsection 5. The law is now firmly settled that failure per se by a trial court to deliver its decision within ninety days of conclusion of evidence and addresses of counsel would not render an otherwise competent decision or judgment invalid. See Obodo V. Olomu (1987) 3 NWLR (PT. 59) 111; Ojokolobo V. Alamu (1987) 3 NWLR (PT. 61) 377 and Eeigbe V. Agholor (1990) 7 NWLR (PT. 161) 234. The court held that a judgment delivered outside 90 days is voidable on one condition which is that, doing so occasioned a miscarriage of Justice. The burden is therefore on the party alleging such a constitutional breach to show that a miscarriage of justice occurred due to the non-compliance with the 90 days rule.
Resolving issue one against the Appellant, the Court held that the Appellant failed to establish the effect of the few weeks delay on the mind of the Judge with particular reference to the validity of the staff handbook, a document and the law, all within documentary evidence.
The compass for resolution of issue two by the Court was the Economic and Financial Crimes Commission Act, 2002 which created the Appellant. The contention canvassed by the Appellant under issue two revolved around the making and validity of the Staff handbook. On this the Court found the arguments of the Appellant’s Counsel that the Respondent’s office was created by the handbook preposterous.
The court held: “The Act that established the Appellant created the principal offices of the Commission and gave a framework for the operations of the Commission and the hand book is meant to give effect and lay out procedures for staff management and discipline.
“Section 8(3) of the Act particularly provides for the appointment or secondment of Staff from other sectors of the Federal Public Service and the conditions of such appointment is provided by Subsection 4 and as determined by the Commission and not the Chairman.
“It is certainly not the staff hand book that governs the appointment of the Respondent. The offices of the Commission cannot be tied to staff hand book in such a way as to divest the Respondent from a rank he is occupying by the nullification of the staff hand book. Fundamentally, the contract between the parties is created by the letter of employment and not the handbook. The handbook can only come into effect after the contract has been duly entered into.”
As regards the issue of challenging the finding of the trial Judge that the Appellant breached the Respondent’s right to fair hearing, the Court held that the argument of the Appellant that it is not in all administrative proceedings that the accused must attend the proceeding is flawed as the facts in the cases relied upon are distinguishable from the facts of this appeal. The Court held further that even if an employee may not attend disciplinary proceedings all the time, it is conditional on the fact that no evidence or witness is taken behind the back of the person being investigated.
On issue four, which questioned the propriety of the trial Judge in ordering reinstatement of the Respondent after nullifying the staff hand book because the rank of the Respondent was named in the handbook, the Court considering the provision of Section 8(3) & (4) of the EFCC Act, found that staff of the Commission are not enjoying their appointments by virtue of the staff hand book but their contracts of employment. The Court held that it is obvious that the making of staff regulations was left at the discretion of the Commission and therefore, employment of officers of the Commission cannot take root in the staff regulations. Furthermore, it is the letter of employment that create contract of service and not the handbook. The argument of the Appellant was held to be without basis. The court held that the order nullifying the staff hand book because it was not made according to law cannot affect the reinstatement of the Respondent who, the court below found enjoyed an employment with a statutory flavour and there is no ground of appeal against that finding. This issue was also resolved in favour of the Respondent.
Held
Having resolved all the issues donated for resolution in the appeal against the Appellant, the appeal was found to be lacking in merit and it was thereby dismissed.
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