3PLR – BANKOLE V. NIGERIAN BROADCASTING CORPORATION

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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TUNJI D. BANKOLE

V

NIGERIAN BROADCASTING CORPORATION

HIGH COURT OF LAGOS .

20TH DECEMBER, 1968

SUIT NO. LD/8/68

3PLR/1968/26  (SC)

BEFORE

GEORGE, J

REPRESENTATION

Okenla – for the Plaintiff

Ayo Idowu (holding Shyngle’s brief) – for the Defendant

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

MAIN ISSUES

Master and Servant-Contract of Service-Dismissal of servant against whom a charge had been made—No opportunity to be heard granted the servant by the investigating tribunal—Whether contrary to principles of Natural Justice.

MAIN JUDGEMENT

GEORGE, J:

In this case the Plaintiff claims a declaration that his pur-ported dismissal by the Defendant is wrongful, illegal and unconstitutional; (2) payment over of the sum of £2,466.15s.0d. arrears of salaries and basic allowance due and payable to him for the period-June, 1965 to October 1967. In the alternative the Plaintiff claims £100,000 being general damages for wrongful dismissal.

The facts of this case are that the Plaintiff was at all material times an Assistant Workshop Superintendent employed by the Defendant Corporation. The Plaintiff was first employed in 1936 as a Mechanic Grade III. He rose from this grade by successive promotions to the rank of Assistant Workshop Superintendent in 1963 on a salary of 6 per month.

In January, 1965, the Plaintiff was sent to the United Kingdom for further studies in technology by the Defendant Corporation and he returned on the 23rd of March, 1965. He resumed duty in the Corporation on the 25th of March, 1965. On resuming duty, the Plaintiff received a query from the Defendant Corporation on the 28th of April, 1965 asking him to explain how he disposed of 31 motor tyres received by him in the course of employment. The Plaintiff wrote his explanation dated the 30th of April, 1965. These facts are not in dispute. One the 9th of June, 1965, the Plaintiff was shocked to hear on the news item of the Nigerian Broadcasting Corporation that he had been dismissed. Before his dismissal the Plaintiff had received a let-ter-Exhibit ‘C’-by which he was interdicted on half pay with effect from 25th of May, 1965. On the same day, he received another letter from the Chief Engineer in which he was informed that his explanation concerning the 31 motor tyres were not satisfactory. He was asked to state categorical-ly whether the tyres were actually handed over to him or not. The Plaintiff wrote another letter to the Defendant Corporation in which he explained that he was an Assistant Workshop Superintendent and that the distribution and use of the motor tyres were the responsibility of the Workshop Superintendent under whom he worked.

After his dismissal the Plaintiff wrote several petitioners to the Defendant Corporation but he did not receive any satisfactory answer. He therefore brought this action claiming damages for wrongful dismissal.

The Director-General of the Nigerian Broadcasting Corporation testified that as a result of several complaints, he appointed a Committee, the members of which he could not recollect, to investigate the allegations of the irregularities in the workshop. He could not remember the number of the people but the Committee submitted its report in March, 1965. The Committee was appointed while the Plaintiff was in the United Kingdom and their report was submitted in March, the month that he resumed duty.

Following the report of the Committee the Plaintiff was interdicted on half pay on his arrival in March. In February, the Committee considered the case of the Plaintiff when he was away in the United Kingdom. As a result of the report of the Committee, the Establishment Committee of the Corporation set up a Tribunal to investigate the irregularities in the stores and also to con-sider the method of disciplining the members of staff. The Tribunal recommended that the Assistant Chief Engineer, the Workshop Superintendent, the Engineering Stores Officer and the Assistant Workshop Superintendent should be dismissed. The report was placed before the Establishment Committee on the 7th of June, 1965 and it was there and then resolved that the Plaintiff be dismissed and that his dismissal be announced on the radio. From the above it is clear that the Plaintiff was dismissed by the Establishment Committee. It was the Establishment Committee that appointed him and they alone had the power to remove him.

The Plaintiff in his evidence testified that he was not aware that a letter had been sent to him inviting him to the Tribunal that submitted the report to the Defendant Corporation. While the other officers who were dismissed were given the opportunity to state their case the Plaintiff was deprived of his chance of exonerating himself. Undoubtedly, the Tribunal considered it necessary to invite the Plaintiff to their meeting to give evidence and to explain what he did with the 31 motor tyres hence they wrote a letter inviting him. This letter did not get to the Plaintiff until the Tribunal had submit-ted its report.

At the close of the case for the Defendant, Counsel for the Defendant sub-mitted that since the dismissal of the Plaintiff was on the loth of June, 1965 and the action was brought in 1968 it was statute barred. He drew my attention to section 61(1) of the Nigerian Broadcasting Corporation Act which reads:

“No Suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any orders or law or of any public duty or authority or in respect of any alleged neglect or default in execution of such orders or law due or authority shall lie or be instituted in any Court unless it is commenced within 12 months next after the act, neglect or default complained of or in the case of continuance of damage or injury within 12 months next after the ceasing thereto”.

In my view, section 61(1) contemplates the position where the Corporation on the authority of an Act does an act which causes injury or trespass to a person or his property. But it does not apply to a case where the Corporation is exercising its right based on common law or on a contract. An action for wrongful dismissal, especially one of this nature, is a specie of breach of contract. This is a common right and is not based on any statute. A master acting within the limits of his authority is entitled to dismiss an employee taking proper care that his action is within the terms of his contract with the employee but such an act cannot come within the provision of sec-tion 61(1) of the Nigerian Broadcasting Corporation Act.

Counsel also submitted that the Defendant acted under section 53 of the Act. This section merely gives the Corporation that power to employ or appoint servants and agents. It is true that power to employ implies power to dismiss and it is not disputed that the Defendant Corporation is vested with the power to dismiss an employee. What the Plaintiff contends is that the dismissal is wrongful. A very strong point taken by Counsel for the Defendant is that no evidence was submitted by the Plaintiff that he was not paid his salary from 1965 to 1967. I however must infer from the terms of Exhibit ‘C’ that the Defendant acted under Staff Regulation 506 and interdicted the Defendant. This letter is dated the 5th of May, 1965 and the last paragraph reads:-

“I am to say that in view of the above, the Director-General has decided that you be interdicted from duty forthwith on half pay under Staff Regulation 506 pending the disposal of this matter.”

In effect, it means that the Director of Administration had given instruction that the Plaintiff should be paid only half his salary from the 5th of May, 1965. The Defendant Corporation cannot now be heard to say that the Plaintiff earned his full salary between 5th of May, 1965 and the time of his dismissal, on the 10th of June, 1965. If the Plaintiff was paid any salary it was illegal and the officer responsible for paying his salary should bear the responsibility for paying the Plaintiff contrary to the instruction of the Director of Administration Counsel addressed me at length also on Exhibit ‘A’ which is the query addressed to the Plaintiff on the 28th of April, 1965. The Defendant Corporation alleged that it was discovered that during the period 25th of January, 1964 to 13th of November, 1964 no log book entries were made in respect of N.B.C. Thames Trador No. LE 3004 although previous to that date a log book was properly kept in respect of this lorry. In other words, Counsel for the Defendant said that the basis for the dismissal of the Plaintiff was the query Exhibit ‘A’ and the inability of the Plaintiff to give satisfactory explanation of the disposal of the 31 motor tyres.

I do not think this is a matter which could be satisfactorily dealt with by a query and an answer because the Plaintiff in his reply to Exhibit ‘A’, which is contained in Exhibit ‘Al’, stated that the operation of the vehicle was between the Workshop Superintendent and the Passages Officer. That the Workshop Superintendent allocated vehicles to the Passages Officer as often as required and (this is important to the Counsel’s submission) the keeping of log books was the job of the driver driving the vehicle. If the Defendants based their answer on the query and the reply, I am not prepared to accept the argument of Counsel that the fact that the Plaintiff’s explanation in this regard did not satisfy the Tribunal the Defendants were justified in dismiss-ing the Plaintiff. This case differs considerably from the case of Adedeji v. Federal Public Service Commission S.C. 518/66 referred to by Counsel for the Defence. All the earlier authorities on the issue of natural justice were examined by the Supreme Court. It appears from the authorities referred to in this case such as Byrne v. Kinemotgraph Reuters Society Limited and Another (1958) 2 All E.R. 579 etc; Kaunda v. The Government of the Federation of Malaya (1962) Appeal Cases pages 392 etc.; and in particular Board of Education v. Rice and Others (1911) A.C. 179, that a Tribunal can obtain information in any way that it thinks best provided it gives fair opportunity to those who are parties in the controversy, for creating or contradict-ing any relevant statement prejudicial to their views. Counsel for the Defendant sought to rely on this view expressed by Lord Loreburn at page 182 to defend the Corporation for not calling upon the Plaintiff to give oral evidence before the Tribunal. I must say that since the members of the Tribunal considered it necessary to call the Plaintiff and indeed did send a letter to him asking him to come and give evidence before them, I can infer from their action that they did not consider it satisfactory to dispose of this matter by correspondence between the Defendant and the Plaintiff. The action of the Tribunal in giving their decision without hearing the person against whom a charge has been made by the Corporation and whom they summoned to appear before them is contrary to the principles of natural jus-tice. Finally, Counsel submitted that if the Plaintiff was entitled to anything at all he was entitled only to six months salary and nothings else. For this proposition, he cited the case of Addis v. Gramophone Company Limited 1909 A.C. page 488 where at page 491 Lord Loreburn L.C. said:-

“If there be a dismissal without notice the employer must pay an indem-nity; but that indemnity cannot include compensation either for the injured feelings of the servant or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment”.

This observation of Lord Loreburn is to be read side by side with the obiter dictum of Lord Hereford where at page 499 he said:-

“The damages sustained by this illegal dismissal were (1) the wages for the period of six months during which his formal notice would have been current; (2) the profits or commission which would in all reasonable probability have been earned by him during the six months he had continued in the employment; and possibly (3) damages in respect of the time which might reasonably elapse before he could obtain other employment”.

Addis case shows that while an employee unlawfully dismissed is entitled to damages he cannot claim damages for his injured feelings or the hardship which he may sustain due to the manner in which he has been dismissed. This is the common law. It is left for the legislature if it so desires to correct this view. It is also said that it is the duty of the Plaintiff to mitigate damages. I shall deal with this aspect of the case later on in my judgement.

Counsel for the Plaintiff in the course of his address submitted that dam-ages should be awarded to the Plaintiff on the basis that he was dismissed in 1967 that is the time he received a letter from the Director of Administration that his case was regarded as closed. It should be remembered that this let-ter was written as a result of a petition and a series of interviews with the Director-General and the Director of Administration after the Plaintiff had sent a petition to the Director-General and the Supreme Commander. Counsel for the Plaintiff was on surer ground when he said that the dismissal of the Plaintiff was contrary to the Staff Regulation Exhibit ‘D’. The notice required to be given an employee of the status of the Plaintiff is six months. It was not necessary for the Plaintiff to ask that a Tribunal be appointed in his own case in accordance with the provision of section 504 of Exhibit ‘D’ since a Tribunal had already been set up. Section 505 sub-section C says:-

“The tribunal shall hear the evidence of the member of staff concerned in relation to the charge and also the evidence of any witness he may desire to call or shall at its discretion consider the facts of the charge without hearing such evidence.”

As stated above the Tribunal exercised its discretion, decided to hear the evidence of the Plaintiff, but the letter did not get to the Plaintiff even though the Plaintiff’s address was Obalende and that of the Defendant was also Obalende within the municipal area of Lagos. This is very strange.

It is my view, having given consideration to the fact that (1) a committee was set up which investigated the irregularities in the stores in the absence of the Plaintiff and submitted a report in his absence without hearing him; (2) a Tribunal was set up and commissioned to consider irregularities in the stores among other matters and that the Tribunal made recommendations without hearing the Plaintiff even though it desired to hear him; (3) the Plaintiff was not given notice of the intention of the Corporation to dismiss him, his dis-missal was wrongful.

The Plaintiff’s claim for a declaration that his dismissal was illegal is one which raises an important issue. It is contrary to the principle of the common law to force a master to accept a servant even if the dismissal of the servant is unlawful. He can only be compensated for the wrongful dismissal in dam-ages. This is not the case of a public officer whose appointment was wrong-fully terminated. In cases such as Adedeji v. Public Service Commission, he would be entitled to a declaration. A declaratory judgement is discretionary and in exercising my discretion not to grant the declaration I have given consideration to the rule of common law stated above.

The Plaintiff was interdicted on the 5th of May and dismissed on the 10th of June. He was entitled to his full salary form the 5th of May to the 10th of June. I assume from the wording of Exhibit ‘C’ that he earned half of his salary for the period 5th of May to 10th of June. He was entitled to £57 but I observed that the Plaintiff has claimed general damages in the alternative. It is admitted by Counsel for the Defendant Corporation that the Plaintiff is entitled to six months salary but as the Plaintiff has not claimed six months salary but preferred to claim £100,000 general damages I would award dam-ages according to paragraph 3 of his claim. The Plaintiff is entitled to £456, six months salary; £57 salary during interdiction i.e. £515; and following the dictum of Lord Hereford in Addis case, I would also award the Plaintiff dam-ages calculated with reference to the time which would reasonably elapse before he could obtain employment. It is difficult to conceive in this part of the world a mechanic who would immediately be employed on a salary of £76 per month. To obtain such an employment would probably take another six or even 12 months but on a fair estimate I would assume that the Plaintiff can reasonably obtain similar employment though with less remuneration within a period of six months and I would accordingly award him damages based on a further salary of six months. This would amount to £456. In all I award the Plaintiff damages assessed at £971. Judgement is therefore entered for the Plaintiff for sum of £971 damages for wrongful dis-missal with costs assessed at 150 guineas to the Plaintiff.

Judgement for the Plaintiff.