Labour Law

 

Incorporating Procedural Fairness into Resolution of Employment Disputes in Nigeria

 

By

William Ameh Esq., LL.B, BL, Legal Practitioner and LL.M Research Student, Faculty of Law, Kogi State University, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Shedrack Ekpa Esq, PhD, BL, AMNIM, Senior Lecturer, Faculty of Law, Kogi State University, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

One of the fundamental rights that has been constantly and frequently litigated in courts, is right to a fair hearing as guaranteed by the 1999 Constitution of Federal Republic of Nigeria (as amended). Right to a fair hearing is sacred as it pervades all levels of our adjudicating jurisprudence. This right is equally considered as an immutable guide in decisions regarding termination or dismissal of employees especially where employment is regulated by statute, and in which case strict adherence to the principle of fair hearing is not only a procedural luxury but mandatory. This paper therefore examines right to fair hearing vis-à-vis dismissal from work place, the necessity for procedural fairness in termination of employment. Being doctrinal in nature, the paper relies on primary and secondary sources of data, namely; the Constitution, international instruments, domestic legislation and judicial authorities on one hand and textbooks, journal articles, and internet materials on the other hand. These sources were carefully synthesized and analysed before drawing appropriate conclusions. It founds that employers most often terminates employment of employee in utter violation of extant law and regulations governing contract of employment. The paper recommends strict adherence to spirit and letters which ensures procedural fairness as encapsulated in the statutes relating to employment relations in the determination of such contract.

Keywords:  Fair Hearing; Constitution; Employment; Dismissal; Employer; Labour

 

Introduction

 

The Principle of Fair hearing as a constitutionally guaranteed right is encapsulated in the extant Nigerian Constitution.[1] For the purpose of clarity, the said section provides that:

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.[2]

Implicit in this subsection are procedural safeguards such as; the notion of right to have one’s cause heard by a neutral arbiter,  fair trial, trial within a reasonable time and the fact that a citizen’s right in this area avails even against the government or any authority in the state.[3] Examining the above statutory provision, the Supreme Court in the case of Baba v Civil Aviation[4] held that the phrase “fair hearing” means that in a judicial or quasi-judicial trial, a hearing to be fair, must include:

a)              The right of the person to be affected to be present throughout the proceedings and to hear all the evidence against him;

b)              To cross-examine or otherwise confront or contradict all the witnesses that testified against him;

c)              To have read before him all the documents tendered in evidence at the hearing.

d)              To have disclosed to him the nature of all relevant material evidence, documentary and or oral evidence, prejudicial to the party, save in recognized exceptions;

e)              To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and

f)               To give evidence by himself, call witnesses if he likes and makes oral submissions either personally or through a counsel of his choice.[5]

 

Interestingly, in the case of Inakoju v. Adeleke[6], the Supreme Court emphatically stated thus:

 

Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for fair hearing in the determination of civil rights and obligations of a person. The Constitutional provision mainly stems or germinates from two known law principles of natural justice. They are; audi alteram partem and nemo judex in causa sua. It is the first of the two that is relevant to this appeal. The meaning of the latinism is “hear the other side, hear both sides. No man should be condemned unheard”. What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and that no party should be given more opportunity or advantage in the presentation of his case[7] (Black Law Dictionary, 6th edition, page 131

 

Captivatingly, this principle encompasses the ideals of natural justice in the narrow technical sense of the twin pillars of justice-audi alterem partem and nemo judex in causa sua- as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.[8]

The principle of fair hearing is so important that it pervades all legal jurisprudence. Under employment law especially those regulated by statutes, that is, those with statutory flavours or constitutional validation, in an event of determination, strict adherence must be had to the provisions of statute creating the employment as such requirement cannot be waived.[9] Thus in any event of a breach of the statutory provisions governing the contract of employment, for instance, such termination or dismissal of the employee will be declared invalid and inoperative.[10]And in that wise, the affected employee is endowed with legal right to be reinstated unless and until his employment is properly determined.[11]

In statutory employments, an employer can summarily dismiss the servant in all cases of gross misconduct, provided the employee is given a fair hearing.[12]

This work clearly examined the basis of incorporating principles of fair hearing in resolving labour related disputes with the principal objective of interrogating on the extent of application of a purely constitutionally originated concept to employment relations, loosely regarded in this wise as an unfamiliar or uncommon terrain.

 

Fair Hearing and Dismissal from Place of Work

In statutorily regulated employment, an employer can summarily dismiss the servant in all cases of gross misconduct,[13] provided the employee is given a fair hearing.[14]Whether a dismissed person is entitled to fair hearing (natural justice) or not depends upon the nature of his dismissal. This is because there is a distinction between wrongful dismissal, which merely entitles an employee to the usual damages in terms of what he would have earned, for the period of notice he is entitled to, for the determination of his employment and unlawful dismissal, which is ineffectual to end the employment.[15]The first is in respect of mere master and servant relationship and the second concerns employment governed by statute. In the latter one, an employee can insist on natural justice of fair hearing.[16]

It is important to note however, that the fact that an organization or institution is a statutory body does not mean that the conditions of service of its employees are protected by statute, the employment must be provided for in a statute as well as the conditions and service agreement.[17] Before a contract of employment can be said to have the coloration of statutory flavour, two ingredients must co-exist;

a)         The employer must be a body set up by statute; and,

b)         The statute must make express provisions regulating the employment of the staff, of the category of the employee concerned, especially in the matters of discipline.[18]

It must be stated that the appointment of a civil servant can be determined at any time subject to civil service rules and procedure.[19]Undoubtedly, a public servant other than a civil servant may be entitled to all the rights and benefits conferred by the common law in respect of all his entitlements accruing from the contract of employment.[20]

 

Express Contract to Afford Procedural Fairness

There is a principle in the law of contract upon which procedural fairness can be foisted on an employer prior to termination, dismissal or compulsory retirement.[21] One possibility is where the contract of employment contains express assurance that an employee shall be given hearing prior to his removal from office.[22]A recourse to common law jurisdiction will be apposite here. In the case of Ridge v. Baldwin,[23]Lord Reid in his dictum, has this to say:

But this kind case can resemble dismissal from an office where the body employing the man is under some statutory or other restrictions as to the kind of contract which it can move with its servants or the grounds on which it can dismiss him.[24]

In other words, an employer who is bound by statute, “or other restrictions” is not at liberty to remove an employee where he has bound himself to afford him pre-removal hearing.[25]

The House of Lords had opportunity to pronounce on this issue in the case of Malloch v Aberdeen Corporation,[26]where Lord Wilberforce held that agreement may serve as such restriction and suggested there are relationships in which all requirements of the observance of rules of natural justice may arise because of regulations or code of employment laid down by statute, or regulations or code of employment or agreement.[27]This was after he had noted that the common law rule which gives an employer power to remove an employee without hearing is illogical and bizarre.

After the above decision came the case of Stevenson v. United Road Transport Union.[28] In this case the plaintiff, a trade union official, was dismissed after disciplinary proceedings, in which he was denied an opportunity to defend himself. He successfully claimed a declaration that the decision to dismiss him from office was ultra vires. Although the court may have been influenced by the fact that meetings of trade union have always been afforded natural justice by the courts, the Court of Appeal approached the case as that of a “special” employee. The discretionary power to terminate the Plaintiff’s employment which was conditional upon investigation led the court to imply natural justice.[29]

It has come to be recognized as part of the English Common Law, outside the scope of employment protection statutes, that where a contract contains an express procedure for termination, this serves as an effective restrain on the employer’s power to terminate without affording an employee hearing. In Jones v Lee,[30]a headmaster was denied his contractual right to a hearing before the local education authority dismissed him. The Court of Appeal granted him an injunction. As Roskill LJ commented, the underlining implication of the decision is that the right to correct pre-dismissal procedure should be upheld. The injunction does not prevent the employer from dismissing the employee, provided it follows the correct procedure.

Similarly in Gunton v. London Borough of Richmond-Upon-Thames,[31]the Registrar of a college dismissed in breach of procedure was granted a declaration that the purported dismissal was ineffective and awarded increased damages to reflect the salary he would have received during the time it would have taken to operate the disciplinary procedure as restraining the power to terminate would be inconsistent with another term in the contract allowing termination by either party upon giving a month’s notice. Buckley LJ led credence to this argument by stating that the adoption of the disciplinary procedure into the contract did not affect the power of the council to terminate upon given one month’s notice on the other grounds but did “disenable the council from dismissing the plaintiff on disciplinary grounds until the procedure prescribed by those regulations had been carried out”.

The closest that a Nigerian judge has come to, in recognizing the liability of an employer for removing an employee without hearing is the diction of Cole J. in Fajemirokun v. Nigeria Airways Ltd,[32]where he stated:

If there is provision in the contract of employment that the appointment of any employee cannot be terminated unless and until certain procedures are gone through, then a failure to go through these procedures before terminating the employee’s appointment renders the employer liable to pay damages to the employee for the breach of his contract of employment.

It is uncertain whether his Lordship had employment with statutory flavour in mind or he was stating what he perceived to be the position at common law. Since there is nothing from the facts of the case that his Lordship adverted his mind to public employment, it may be assumed that he was merely restating a general principle of law applicable to private employment.[33]

It is surprising that while Nigerian courts insist that an employee should faithfully comply with the terms of the contract of employment, employers are often relieved of their obligation to abide by the pre-removal procedure they inserted. The law of contract is essentially ordained to see that reasonable expectations come true by the fulfilment of solemn promises.[34] Where the law is found to be a caricature of what labour relations are in the world of reality, the law loses the awe in which it should be held.[35]

A learned writer has urged that whether or not an employee should be afforded the right to fair hearing before his appointment is terminated is dependent on whether the right to  hearing is a term of the employment contract.[36]In other words, where the contract of employment provides for an investigating panel either prior to dismissal where there has been misconduct or following suspension, the court should uphold it, by holding the employer to his contract. It should be noted that it is not enough that an employee is not summarily dismissed but terminated or compulsorily retired.[37]Removal from office (whether on notice or summarily) entails grave consequences for the individual concerned, his family and the nation.

A writer lists the following as consequences of abuse of procedural fairness: poverty, broken families, and increase in number of street children, low esteem, and modification of self-image, rebellion or terrorism, retarded development in children, deaths; for the country serious brain drains.[38]

What is the justice in ruling that an employer may not summarily dismiss an employee without providing him opportunity to clear his name, to defend himself, whereas under the guise of sanctity of contract, he may be terminated with a month’s salary in lieu of notice without more? Such principle of law does not square with common sense, it is alien to human reason, to man’s will and all men’s wisdom.[39]

 

Attitude of the Courts

An employment with statutory flavour must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent therewith is null and void and of no effect. An employee whose appointment is terminated contrary to the procedure laid down in the statute which regulates the appointment will be entitled to automatic re-instatement.[40]

In Nigeria, public servants in the established and pensionable cadre of the Federal or State government do not hold their offices at the pleasure of the Federal or State government. Rather, their appointments are based upon rules and regulations, statutes or memorandum of appointment.[41]According to Aniagolu JSC (as he then was) in Olaniyan v. University of Lagos[42], to remove a public servant in flagrant contravention of the rules governing him, whether under contract or under provisions of a statute or regulation made there under, is to act capriciously and to destabilize the security of tenure of the public servants, frustrate his hopes and aspirations, and thereby act in a manner, inimical to order, good government and well-being of society. All rules, regulations and provisions of statutes concerning the removal of public servants[43] insist on the compliance with the rules of fair hearing (natural justice) by the person or body ordering the removal.

In fact, the principle of fair hearing must be applied in every determination of the rights of others. In Aiyetan v. NIFOR,[44] the Supreme Court held that:

The principle of natural justice as enshrined in the rules of common law and Section 33 (1) of the 1979 Constitution is not limited to courts or tribunals established under Section 6 (5) of the 1979 Constitution but to every situation wherever a person or authority is concerned in the determination of the rights of another…

In Olatunbosun v. NISER Council,[45]Oputa JSC (as he then was), after re-affirming the rule that where a contract has been terminated, motive is irrelevant, save that where an employer pleads that a plaintiff is removed for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct.

Explaining further on the issue, the Supreme Court per Wali JSC (as he then was) in Yusuf v. Union Bank of Nigeria,[46] states that before an employer can dispense with the service of his employee under the common law he needs to afford the employee an opportunity of being heard before exercising his power of summary dismissal.

The foregoing respected dicta of the highest standard are of limited value as they are obiter made in cases involving public employees; the last was made in a case where the employer actually granted the employee fair hearing prior to his dismissal, so the court was not indicting the employer for failure to do what he ought to do.[47]

In Akumechiel v. Benue Cement Co. Ltd,[48]it appeared in evidence that the appellant was accused of certain misconducts for which he was not given hearing. His appointment was terminated with no reason assigned. The appellant argued for pre-termination hearing, but the Court of Appeal believed the employee’s testimony that he was not terminated as a result of any allegation of misconduct. The termination was upheld, yet in the course of his judgment, Muntaka-Commasie JSC stated that where an employer “removes” an employee for misconduct, his “removal” cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend that alleged misconduct.

What then constitute ‘misconduct’ for the purpose of dismissal by employer and what is the place of procedural fairness in such circumstance? The answer can readily be found from the decision in Danmole v. AG Leventis & Co (Nigeria) Ltd,[49] where Ilori J. stated that absence from duty without leave is misconduct that justifies dismissal, but “the audi alterem partem principle imposes a duty upon an employer to act fairly by giving the employee an opportunity to explain himself before taking any decision which will affect the employee’s proprietary right”. 

In Oseni v. Brossette (Nig) Ltd,[50]the plaintiff, without being afforded hearing, was dismissed for selling his employer’s goods below the stated price. The local trade union executive intervened and pressed the employer to set up a panel to look into the matter. The employer obliged. On an appraisal of the facts, the panel recommended a less severe sanction than dismissal. The employer stuck to its guns and dismissed the plaintiff. Remarkably, the court upheld the panel’s conclusion and awarded the plaintiff’s damages for wrongful dismissal. Speaking of this panel, Onalaja J said: it is not a judicial proceeding, but since it’s likely to affect the civil rights of another person it is bound in law to observe the principles of natural justice.[51] Also, in the case of Tata v. Attorney-General Bauchi State,[52]the appellant was dismissed from service for alleged complicity in importation of non-addictive, mind-altering drugs belonging to the respondent government. He protested the dismissal on the ground that he was not afforded a hearing. There upon, an investigation was instituted, the appellant was given a hearing and he was absolved of complicity in the matter. In consequence, his dismissal was commuted to retirement some two years after the initial dismissal. If an employer manifests this level of responsiveness, why should a court of law not impose interlocutory injunction to restrain an employer from dismissing an employee until due dismissal procedures are complied with? At worst, such an order can be made subject to the employee undertaking to pay the employer damages for any loss sustained by reason of the order, it should be held at the trial that the employee was lawfully dismissed.[53]

It is no longer doubtful the application of procedural fairness to instances of investigation of gross misconduct committed by employer. This position was ventilated properly in Olatunbosun v. Nigerian Institute for Social & Economic Research,[54]Oputa JSC asserted that the right to fair hearing arises where there is an allegation of misconduct, which may result and in fact did result in some form of punishment, deprecation of some rights or loss of means of livelihood to the Appellant. In every case of dismissal or termination of appointment which may vitally affect a man’s career or his pension in such a case it is equally vitally important that the appellant is afforded ample opportunity to defend himself. Similarly, in Union Bank of Nigeria v. Ogboh,[55]Ogundare JCA held that the appellant’s failure to give the respondent fair hearing constituted a violation of section 33 of the 1979 Constitution (now S. 36 of the 1999 Constitution).

It must be pointed out most clearly, that where opportunity for hearing is given to an employee but the latter fails to make good use of it, he or she cannot be heard to complain or raise the issue of denial of right to fair hearing. This is so because the right to fair hearing is not the right that a party must be heard. In Udemah v. Nigeria Coal Corporation,[56]the appellant was an assistant general manager, having risen to that position after five years of loyal service. In 1982 an administrative panel of inquiry was set up to investigate some allegations of malpractices in the corporation. The appellant was invited twice to appear before the panel but he turned down the invitations. In November 1982 he was suspended and three month’s salary in lieu of notice paid. He unsuccessfully sought a declaration that his suspension was contrary to natural justice and therefore void. On the issue of natural justice, Uwaifo JCA held that:

Natural Justice or audi alterem partem is not a sleepless and restless ombudsman or an ever weeping jeremiah prying into or pleading over every private arrangement between parties for it to be modified in its implementation in order to achieve a particular result. When a valid and lawful contract has been entered between two parties, there can be no room for invoking or inviting natural justice to intervene if there are no particular rules and regulations in support of the course, or if there are no special occasions making a hearing or, indeed, that observance of the rules of natural justice imperative. The performance and obedience of such contract may well depend entirely on its terms and conditions not on the intervention of natural justice, as some hope, descended in white robes through the clouds as an arbiter.

Similarly, in Osakwe v. Nigerian Paper Mill Ltd,[57]Ogwuegbu JSC held that:

I have no hesitation in agreeing with the court below that the appellant was given fair hearing as enshrined in Section 33 of the 1979 Constitution (now S. 36 of the 1999 Constitution).

 

Fair Hearing and Dismissal of University Staff

Discipline is resorted to by universities authorities to punish a breach of university rules and regulations by a member or members of staff; for minor offences, a member of staff can be warned or reprimanded, or suspended, but for serious offences, his appointment could be terminated or he could be dismissed.[58] But in all of these, fair hearing must be the guiding principle.[59] In Olaniyan and 2ors v. University of Lagos and ors,[60]where the University acted on a visitation panel report and dismissed the professors, without granting them fair hearing, the Supreme Court per Aniagolu, JSC (as he then was),  stated thus:

The procedure adopted by the Council may be quick, convenient and time saving but the dictates of justice demand that the legal principle of audi alterem partem must be obeyed no matter how cumbersome and inconvenient it may appear to the council.

Oputa, JSC (as he then was), put it more brusquely but clearly thus:

That every act of the respondents like engagement or removal of staff must be done within the Statute-Act no. 3 of 1963 to render such acts intra-vires and right. The relationship that existed between the university and the appellants was not the simple common law relationship of master and servant… the removal of the appellants without recourse to the procedure outlined in Section 17(1) of the 1967 Act and Clause of their Agreement was ultra vires the powers of the respondents and therefore null &void…

In University of Calabar v. Essien,[61] the Supreme Court per Iguh JSC held thus:

Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all the employer needs establish to justify his action is to show that the allegation was disclosed to the employee, that he was given a fair hearing, that is to say, that the rule of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation.

The application of procedural fairness by Nigerian courts has become a growing phenomenon that is symptomatic of the general dictates of rule of natural justice which plays vital role in the administration of justice. In Egwu v. University of Port-Harcourt,[62]Muntaka-Coomassie JCA noted that the general trend has been to extend the application of the rule of natural justice entrenched in Section 33 (1) 1979 Constitution (now 36 of the 1999 Constitution), to any decision maker who determines questions affecting the right or legitimate expectations of individuals. This dictum is apt only to the effect that our courts are not averse to recourse to the use of human rights provisions to protect private employees. It may be that when the issue is fully argued, the employees may obtain the favour of the courts.[63]

In Bamgboye v. University of Ilorin,[64]one of those cases that fair hearing and contract of employment were comprehensively discussed. In that case, the Supreme Court held inter alia thus:

a)    When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of the discipline of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with, if not, any decision affecting the right or repudiation or tenure of office of that person may be declared null and void in an appropriate proceeding. In the instant case, Section 25 of the University of Ilorin Act confers on the University Staff a “Special Status” over and above the normal contractual relationship of master and servant. Consequentially, the only way to terminate such a contract of service with “statutory flavor” is to adhere strictly to the procedure laid down in the statute.

 

b)    In order to justify the dismissal or termination of appointment of an employee, the employer must prove to the trial court’s satisfaction that:

                               i) The allegation was disclosed to the employee;

                              ii) He was given a fair hearing; and

iii)   The panel believed that he committed the offence after hearing witnesses.

 

In the instant case, to justify the termination of the appellant’s employment, the respondents must prove to the trial court’s satisfaction that the council believed the appellant committed acts of gross misconduct after hearing the case. This was exactly what the trial court held in the instant case where the council was said to have believed that the appellant committed the alleged acts of gross misconduct.

c)    Allegations of malpractice, which amount to gross misconduct, are within the province and competence of an employer to investigate and take necessary disciplinary action against any of its erring officers. On this, Iguh JSC, further said:

 

I agree entirely that the various allegations of examination malpractices established against the appellant amounted to grave acts of misconduct which in my view, belong to the domestic jurisdiction of the University of Ilorin Governing Council. It seems to me clear also that they were carefully investigated by the council and disciplinary measure meted out to the appellant in accordance with the provision of Section 15 of the University of Ilorin Act, 1979.

Delightedly, in the case of University of Ilorin v. Adeniran,[65]the Court of Appeal, in clear terms, delineated the procedures for the termination of the appointment of staff of the universities, the court per Ogunwumiju, JCA,[66] held inter alia:

The issue at stake here is whether or not the appellant took the appropriate statutory steps in terminating the appointment of the respondent. The learned trial judge in my view was right in his decision that the appellant did not give the requisite notice of misconduct to the respondent to provide the legitimate foundation for the subsequent disciplinary decisions to terminate his appointment. Section 15 (1) of the Unilorin Act, provides for a mandatory procedure to be followed by the University. If a formal query is issued, the Senior Staff Disciplinary and Appeals Committee must be called into the issue to examine the defence of the respondent and make appropriate recommendation to the council.

For ease of reference and clarity, section 15 (1) of the Unilorin Act provides as follows:

If it appears to the council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the university, other than the vice-chancellor should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the council shall:

a) Give notice of those reasons to the person in question,

b) Afford him an opportunity of making representations in person on the    matter to the council, and

c) If he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements;

                                           i.        For a joint committee of the council and the senate to investigate the matter and to report on it to the council, and

                                          ii.        For the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.[67]

d) And if the council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the council may so recommend him by an instrument in writing signed in the direction of the council.

The peremptory termination of the respondent’s appointment by the council, side stepping the full disciplinary procedure, stipulated by section 15 (1) of the Unilorin Act copiously lifted above in our  considered opinion, amounts to denial of fair hearing.[68]

Therefore, if it appears to the council that there are reasons for believing that any of such people should be removed from his employment on the ground of misconduct or of inability to perform the functions of his office, the council[69] shall;

a)   Give notice of those reasons to the person in question,

b)   Afford him an opportunity of making representations in person on the matter to the council, and

c)   If he or any three members of the council so request within the period of one month beginning with the date of the notice, make arrangements;

 

                   i.       For a joint committee of the council and the senate to investigate the matter and to report on it to the council, and

                 ii.       For the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter.[70]

If the council, after considering any representation and the report made in pursuance of this subsection, found the person guilty of misconduct, the person affected may be removed by an instrument, signed on the direction of the council.[71]

The point being made out clear here is that where the staffs’ terms of employment is one governed by laws, rules and regulations id est., having statutory flavour, the employment cannot be terminated by way of discipline, except in accordance with rules and regulations governing the employment.[72]

 

Fair Hearing and Allegation of Crime in Work Place

It must be noted that where an allegation of crime is made against an employee or staff, such must be proved before dismissal.[73] In other words, where the dismissal of an employee of institutions in based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand. This is to give employee adequate opportunity to explain himself before a tribunal vested with criminal jurisdiction before his employer takes any disciplinary action against him. The focus is primarily on the right to fair hearing rather than on a vindictive exposure of the erring employee to the punitive sledge of the criminal law. However, it is not in every case that an employee must be arraigned before a court or before a disciplinary action can be taken against him. Once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such case can be taken without recourse to a criminal charge. All the employer needs to do, is to afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime.[74] However, in a plethora of cases, it has been held that the employee must not be tried first in a court of law before dismissal.[75]This was the position of the Court of Appeal in Eigbe v. NUT[76]and Ansambe v. BON.[77]Thus, it would be sufficient if a panel of inquiry set up to look into the matter ensures that the said employee is heard. On the other hand, the Supreme Court in Ziidee v. R.S.C.S.C.[78] held that an Administrative Tribunal cannot usurp the functions of the conventional courts in the hearing and determination of criminal cases. Thus, once criminality is alleged, the courts must be resorted to in order to determine the guilt or innocence of the employee.[79]

According to Katsina-Alu JSC in NPA v. Ajobi[80]the employee is only liable to dismissal if he was convicted by the court. The process of trial usually is time-consuming. In the meantime, employers’ resort to suspension, to await the result of the criminal proceedings, before dismissal, unless the act is misconduct for which law and practice recognizes the employer’s right to dismiss.[81]

 

Reinstatement Under the Law

Reinstatement means putting an employee back into employment as far as possible in the same position as he occupied prior to termination of his employment.[82] The Supreme Court in Dr Taiwo Oloruntoba-Oju & ors v. Professor Shuaib O. Abdulraheem & Others [83]after considering the case of the appellant came to the conclusion that the termination of the Appellants was wrongful but refused to bring the relationship to an end instead, they were reinstated. As the court maintained:

When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. Therefore, the discipline of such an employee, the procedure laid down by such statute must be fully complied with. Failure to comply will lead any decision being declared null and void.

There is no doubt that the relationship of the parties had turned sour. Considering the pains of the legal battle undertaken by the parties, the financial involvement from both sides, the grudges against each other during and after reinstatement will, certainly and practically continue to bring disaffection, hatred, lack of confidence or even not treating one another in good faith; which is the basic foundation of the relationship.[84]

According to the Counsel for the Respondent, Yusuf Ali (SAN), the reinstated lecturers were making demands for promotions among other things. The Appellant Counsel on the other hand, denied the allegation of his client’s refusal to resume work but never refuted the allegation of promotion as alleged by Yusuf Ali (SAN), Counsel for the University.[85]

The issue of re-instatement will continue to play a dominant role in the history of labour relation irrespective of whether the relationship between the employer and the employee is regulated by statute or not. The relationship is the paramount issue. In a situation where parties despite their misunderstanding, come to a round table for amicable discussion, before or during trial, they may agree on consent judgment or even withdraw the case and continue with their relationship. But in situation where parties involved themselves in a very serious legal battle, which invariably has soured good relationship built, the best option is the common law position. Where an employee is reinstated by Court his mind works towards placing him in the same position he was prior to disengagement and be accorded with all benefits as the case may be; which in most cases is practically impossible.

The issue of fair hearing and termination without observing due process of the law should attract heavy penalty or compensation rather than reinstatement. In the case of David Osuagwu v. A.G Anambra State,[86]Akintan JSC held as follows:

The position in Law is that where a contract of employment is for a specific period and the employee was wrongly dismissed or removed from office, then an award of damages in the full amount of salary, allowances and other entitlements which the employee would have earned, if the contract of service had run into full course, is the maximum amount that is recoverable except that the amount may be reduced slightly in respect of being payable immediately instead of the dates.

 

International Instruments and Procedural Fairness in Work Place

 According to a renowned writer,[87]  procedural fairness can be extended to employees of all categories if Nigerian Judges were willing to apply international instruments to alternate the common law. One of such international instruments of inputs is the ILO Philadephia Declaration of 1944 which proclaims: All human beings, irrespective of race, creed or sex, have the right to both their material well-being and their spiritual development in conditions of freedom, dignity, of economic security and equal opportunity.[88]

Furthermore article 4 of the ILO Termination of Employment Convention, 1982 provides that “the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker”. And article 7 provides that “the employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity”.[89]These provisions and proclamations are a derivation of an ever-widening opportunity of co-operative study and appreciation of human rights jurisprudence as developed by the courts on various jurisdictions against a background of diversity of social and economic circumstances and political culture and experience.[90]

Judges have opportunity of being brought up-to-date on emerging and ever-widening human rights jurisprudence as developed by international institutions and as embodied in international instruments.[91]

Where these international instruments are brought to the attention of judges, new vista is open in the human rights sphere. Municipal judges feel shackled by vision of law to assure litigants not merely freedom, liberty and equality but also a better life founded on the ideals of the concept of human rights.[92]

Municipal law should respond to the humanizing and reforming provisions of international documents using them as a formative element in the liberalizing of national system of law.[93]

 

Conclusion/Recommendation

Under labour relations, in the determination of proprietary rights and liability of employees, particularly in an employment with statutory flavour, fair hearing (natural justice) must be the guiding principle. That is to say, that an employee must be given an opportunity to explain himself before any decision affecting his or her rights is taken. In statutory employments or employment with statutory flavour or constitutional backing, for an employer to determine or terminate the appointment of an employee or staff, in the event of any allegation of misconduct, strict adherence must be had to the procedure governing termination and removal of staff or employees as encapsulated in the statute creating the employment. Where an employee or staff whose employment is peppered with statutory flavour is removed from office in utter disregard of the rule of natural justice, or contravention of the statute creating it, such act of violation or contravention must be greeted with form of disapprobation as an act which is ultra vires.[94] Therefore, it is concluded here that in the determination of any employment with statutory flavour, employers of labour must have full recourse to fair hearing of the employees. It is recommended therefore, that in the termination or removal of an employee or staff, especially where employment is regulated by statute, all rules, regulations and provisions concerning removal of public servants must be strictly complied with. There must also be an insistence on the compliance with the rules of fair hearing (natural justice) by the person or body ordering the termination of employment. It is also recommended that in ordinary master and servant’s relationship this cardinal principle of fair hearing should be applicable so that an employee will no longer be dismissed with no reason whatsoever by the employer.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

Books

 

Abbarrett, F.M., Nigerian Labour Law, Hamby Digital Prints, 2007.

Akintunde, E, Nigerian Labour Law, 4th Edition, Emiola (Publishers) Limited, 2008.

Igwenyi, B.O, Modern Constitutional Law in Nigeria, Nwamazi Printing & Publication Co. Ltd, 2006.

OJI, E.A, Employment & Labour Law in Nigeria, Mbeyi & Associates (Nig.) Ltd, 2015.

Okpara, O, Human Rights Law & Practice in Nigeria. Vol. 1 Chenglo Limited, 2005.

 

 

Journals/Internet Sources/Paper Presentation

 

Awosika, K, “Of ‘Isons’ and ‘Absolute-Isons”, The Guardian, August 21, 2002.

Chianu, E, Towards Fair Hearing for all Nigerian Employees, Review of Nigerian Law and Practice, Vol. 1 (1), 2007. Available online at www.nigerianlawguru.com>articles>t...

Mohammed, B,“The battle for termination and Reinstatement in contract of Employment,  Journal of Contemporary  Legal Issues, A publication of Nigerian Bar Association,  Idah Branch, Kogi State, Vol. 1, No. 1, 2009

Morris, G, “Public or Private? State Employees and Judicial Review”, Law Quarterly Review 298, 1991.

Grogan, J, “Dismissal in Public Sector: Triumph of Audi”. South African Journal, 1991

Ojumu, C. & Ocheja, C.P, “The Courts versus Ivory Towers: Lessons for Varsities Staffand Students”, Lokoja Bar Journal of Law and Practice (LJLP) Vol. 2, No. 1, 2018.

Okpaluba, C, “A Trade Union’s Right to Dismiss: A West Indian Decision” International and Comparative Quarterly, 1973.

 Popoola, A.O,“Law and Universities Administration in Nigeria: Issues, Challenges and Perspective” Paper Commissioned for presentation at the Executive Education Programme organized for Vice-Chancellor of Nigerian Universities by the Association of Vice-Chancellor of Nigerian Universities, Akwa-Ibom State, 2014.

Sholanke, O.O, “Termination of Contract of Employment: Are University Lecturers Sacred Cows”. Justice, 1991.

 

 

 

 

 

 

 

 

 



[1] Constitution of the Federal Republic of Nigeria 1999 (as Amended), Section 36(1); see also Article 10 of Universal    

   Declaration of Human Rights (1948); Article 14 of International Covenant on Civil and Political Rights (1966).

[2] Ibid. See also Article 7 of the African Charter on Human and Peoples Right. 

[3] Ben. O. Igwenyi; Modern Constitutional Law in Nigeria, (Enugu: Nwamazi Printing & Publication Co. Ltd;2006),

  p.369.

[4] (1991) 7 S.C.N.J (pt1)

[5] Worthy of note is that in the above case of Baba v. Civil Aviation (Supra), the Supreme Court held that the word

  ‘determination’ means ‘decision’.

[6] (2007) All FWLR  Part 353, p.3 at [pp. 108-109 paras H-B]

[7] See also the recent case of Eze v. F.R.N (2018) All FWLR (pt. 923) 123 at 151 paras A-B], wherein the apex Court 

  defined fair hearing as a trial conducted according to all the legal rules formulated to ensure that justice is done to the

  parties in the case.

[8] Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403, SC; Onyekwuluje v. Benue State Government (2005) 8 NWLR

  (pt. 928) 614 C.A.

[9] Menakaya v. Menakaya (2001) 16 NWLR (pt. 788) 203; Iderrima v. R.S.C.S.C (2005) 16 NWLR (pt. 951) 378; Olaniyan

   v. University of Lagos (1985) 2 NWLR (pt. 9) 599.

[10] Elizabeth, A. Oji, and Ohornze, D. Amucheazi, Employment & Labor Law in Nigeria, (Lagos: Mbeyi & Associates

    (Nig.) Ltd., 2015) p. 350.

[11] See Isievwore-Obu v. NEPA (2002) 2 NWLR (p.1805) 589, where the Supreme Court state that it is statutory flavor 

    that puts on employment over and above ordinary master and servant relationship. 

[12] Ziideeh v. R.S.C.S.C (2007) 3 NWLR (pt. 1022) 559.

[13] The term ‘gross misconduct’ is one of the most abused and misused in employment relations owing to its imprecise

    nature as it covers all wrongs- be it civil or criminal.

[14] Ziideeh v. R.S.C.S.C at fn 12.

[15]Okpara Okpara, “Right to Fair Hearing”, In Okpara Okpara (ed), Human Rights Law & Practice in Nigeria, Vol. 1,

   Chenglo Limited, 2005 p. 210.

[16]Ibid.

[17] See Nigerian Gas Company Ltd. V. Dudusola (2005) 18 NWLR (pt. 1957) 320 per Abba Aji JCA (as he then was).

[18] F.M. Abbarrett, Nigerian Labour Law, Hamby Digital Prints, 2007 p. 46.

[19]Akintunde Emiola, Nigerian Labour Law, Fourth Edition, (Lagos: Emiola Publishers) Limited, 2008) pp. 157-158

[20]Ibid.

[21]Emeka Chianu, “Towards Fair Hearing for All Nigerian Employee” Reviews of Nigerian Law and Practice, Vol. 1 (1) 2007, available online at www.Nigerialawguru.Com>article>t.Accessed on 6/02/19

[22]Ibid at fn. 18.

[23](1964) AC 40.

[24]Ibid., at p. 65

[25]Ibid.

[26](1971) 2 All ER 1278

[27] Ibid ., at p. 1295

[28](1997) 2 ALL ER 941

[29] At pp. 948-949 Buckley LJ suggests that natural justice should apply in any case where some restriction exists on the

    ground for dismissal from employment.

[30][1980] ICR 310. Just in case any thinks this case is of little value because it involved a public employee, it should be

   appreciated that English public employees do not enjoy the security of tenure that Nigerian counterparts enjoy; they are   

   subject to the doctrine of dismissal at will as private employees in Nigeria. See also Fredman, S. and Morris, G.,

   “Public or Private? State Employees and Judicial Review” (1991) 107 Law Quarterly Review 298

[31](1986) 3 All ER 577. In RV. Derbyshire Council, exp Noble (1990) LRLR 332 1000, Buckley LJ., suggests that procedural fairness should be implied into all contract of employment.

[32] (1979) 2 LRN 238, 242

[33]Ibid.,  at fn. 18.

[34] Per Fakajode J in Adebule v. West African Breweries Ltd. (1971) 2 ALR (Comm) 363, 375.

[35]Ibid

[36]Okpaluba, C, “A Trade Union’s Right to Dismiss: A West Indian Decision” International and Comparative Quarterly 22 (1973) pp. 557, 563. 

[37] “There (is) reason why procedural protection should be accorded to workers summarily dismissed for misconduct but

    denied to those whose employment was terminated on notice through no fault of their own”, Grogan, J, Dismissals in

    the Public Sector: “Triumph of Audi?” South African Law Journal 108, (1991) pp. 599, 600.

[38]Awosika, K, “of ‘Isms’ and ‘Absolute-isms’”, The Guardian, August 21, 2002, 51.

[39]Ibid.

[40] Ibid at fn. 12.

[41]Ibid

[42] See Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599 at 605

[43] For a Comprehensive list of employees as public servants, see Section 318 of the 1999 Constitution of the Federal

   Republic of Nigeria (as amended).

[44](1987) 3 NWLR (pt. 59) 48. See also the cases of Inoli v. University of Nigeria Teaching Hospital Management Board

   (1994) 10 SCNJ 71,(1994)8NWLR( part. 363) 376; University of Calabar v. Essien  (1996)10 NWLR(pt.477)225,262

[45] (1988) 3 NWLR (part 80) 25, 48 at p. 58, Eso JSC said: “once misconduct is alleged there must be the element of fair

    hearing.” 

[46] (1996) 39 LRCN 113,115.

[47]Ibid, n.12.

[48](1997) 1 NWLR (pt. 484) 685,703.

[49] (1981) 1-3 CCHC, 227.

[50](1981) 1-3 CCHCH, 310.

[51] Ibid at 324.

[52] (1993) 9 NWLR (pt. 317) 358.

[53]Sholanke, O.O., “Termination of Contract of Employment: Are University Lecturer Sacred Cows?”  Justice No. 5, (1991) pp. 136, 152.

[54](1988)3NWLR (Part 80) 25, 52.

[55] (1991) 1 WNLR (Pt. 169) 369.

[56](1991) 3 NWLR 477, 490, followed in Taduggoronno v. Goltom (2002) 4 NWLR (pt. 757) 453.

[57] (1998) 10 NWLR (pt. 568) 1, 15. In Bakare v. Lagos State Civil Service Commission (1992) 8 NWLR (pt. 262) 641, 699, Nnaemeka-Agu JSC held that S.33 of the 1979 Constitution (S.36 1999 Constitution) deals with determination of civil rights and obligations by a court or a tribunal established by law, not non-judicial bodies which decide rights and obligations. This diction is of doubtful value.

[58] Popoola A.O., “Law and University Administration in Nigeria: Issues, Challenges and Perspective” being a paper commissioned for presentation at the Executive Education Programme Organized for presentation at the Executive Education Programme Organized for Vice-Chancellor of Nigerian Universities by the Association of Vice-Chancellor of Nigerian Universities: Le Meredien Hotel Uyo, Akwa-Ibom State: 19-20 November, 2014, p. 30.

[59]Ibid.

[60] Cletus Ojumu & Christopher Paul Ocheja, “The Courts versus Ivory Towers: Lessons for varsities, staff and students” Lokoja Bar Journal of Law and Practice (LJLD). Vol. 2, No. 1, 2018, pp.107-120.

[61] (1996) 10 NWLR (pt. 477) 225, 262.

[62] (1995) 8 NWLR (pt. 414) 419, 447.

[63]Ibid.

[64] (1999) 10 NWLR (pt. 622) 290.

[65] (2007) All FWLR (pt. 382) pg. 187.1

[66] At (pp. 1910-1911, paras. D-E).

[67] See also Imasuenv.University of Benin (2010) 3 NWLR (pt. 1182) p. 591, pp. 613-614, paras. G-G. 

[68] See the case of Akinyanju v. University of Ilorin (2011) All FWLR (pt. 569) p. 1080; Oloruntoba-Oju v. Abdul-Raheem

   (2009) All FWLR (pt. 497) (2009) 13 NWLR (pt. 1137) 83. Olufeagba& 43ors v. Abdul-Raheem (2010) All FWRL (pt.

   512) 1033; Bamgboye v. Unilorin (1999) 10 NWLR (pt. 622) 290.

[69] See Section 16 (1) and (2) of the University of Benin Act 1990 and the case of Imaseun v. University of Benin (Supra)

[70] See Olufeagba v. Abdul-Raheem (Supra); Akinyanju v. University of Ilorin (Supra).

[71]Bamigboye v. Unversity of Ilorin (Supra).

[72] See Raji v. University of Ilorin (2008) All FWLR (pt. 435 p. 1832), see also Olaniyan v. University of Lagos.

[73]It must be noted that it is only the regular courts that can decide on the criminality of any person. See Section 36 (5) of

   the 1999 Constitution of the Federal Republic of Nigeria.

[74]Ibid.

[75]Ibid.

[76] (2008) 5 NWLR (pt. 1081) 604.

[77] (2005) 8 NWLR (pt. 928) 650.

[78] Supra.

[79]NEPA v. Adeyemi (2007) 3 NWLR (pt. 1021).

[80](2000)13 NWLR (pt. 998) 489.

[81]Ibid.

[82]Per Taylor C.J in Ejegi v. Agip (Nig.) (1968) 2 All NR151

[83]Dr. Taiwo Oloruntoba-Oju & ors v. Professor Shuaib O. Abdulraheem & Ors (2009) LPELE SC. 75/2007 p.15.

[84]Bala Mohammed, “The Battle for Termination and Reinstatement in Contract of employment, Journal of   

  Contemporary Legal Issues, Vol.  1, No. 1. Publication of Nigerian Bar Association, Idah Branch, Kogi Branch (2009)

  pp. 87-92.

[85]Nigeria Compass Tuesday, August 4, 2009 p. 5.

[86](1993) 4 NWLR 13, 45.

[87] Emeka Chianu at fn 21.

[88] Adapted from Lee “The Declaration of Philadelphia: Retrospect and Prospect”, (1994) 133 (No. 4) International 

    Labour Review, 467. On the strength of this provision it may be argued that if directors are entitled to a full-dress    

    hearing prior to removal (S. 262 CAMA 1990) why should employees under them not enjoy same right?

Convention 158 of 1982; it came into force on November 1985. This convention replaces Termination of Employment   Recommendation 1963 (Recommendation 119).

[90] Expressing the foresight of an eagle, a writer had in 1965 urged that industrial dispute settlement machinery should  

    conform with international obligations in regard to ratified International Labour Conventions: Yesufu, T.M, “Legal 

    Aspects of Labour Relations in Nigeria (2)”, (1965) International & Comparative Law Quarterly, (Supplementary

    Publication No. 10), 94, 108

[91] Ibid

[92] Justice Ayoola, “Fundamental Human Rights and the Judiciary”, Justice  No. 8., (1990) (No. 8)  pp.199, 120 

[93] Lloyd, D, “Law and Public Policup,  Current Legal Problems (1955)  42, 60

[94] University of Lagos v. Uche (2008) All FWLR (pt. 443), See also Akinyanju v. University of  Ilorin (Supra).