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Yusuf v. National Teachers Institute.

EMMANUEL KADIRI YUSUF

V

NATIONAL TEACHERS INSTITUTE

COURT OF APPEAL

( ABUJA DIVISION )

M. S. M-COOMASSIE, JCA ( Presided and Read the Lead Judgment )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/47/2000

TUESDAY, 27TH NOVEMBER, 2001

MASTER AND SERVANT - Misconduct which may justify dismissal of servant - Degree and nature of

MASTER AND SERVANT - Terms and conditions of employment as bedrock of plaintiff’s case - Duty of plaintiff to plead

MASTER AND SERVANT - Wrongful dismissal - Complaint of breach of fair hearing - When will be refused

MASTER AND SERVANT - Wrongful dismissal - Failure to specifically plead terms and conditions allegedly breached - Effect of

PLEADINGS - Importance and essence of

PRACTICE AND PROCEDURE - Order of non-suit - Essence of

Issues:

1.            Whether the learned trial Judge was right in his holding that the appellant did not discharge the burden of proof on the alleged breaches of conditions of service including the Civil Service Rules.

2.            Whether the learned trial judge was correct in his holding that the allegation of misappropriation of funds was not a criminal one that warrants prior trial and conviction of the appellant before a competent Court or Tribunal and that in any case the appellant had admitted his guilt which needed no further proof in a court of law before any administrative action could have been taken against him notwithstanding exhibit ‘L’.

3.            Whether the learned trial Judge was right in his holding that the appellant was given fair hearing by the respondent having regard to the circumstances of this case vis-a-vis exhibit ‘U’ . 4. Whether the retroactivity of the letter of dismissal to wit:

exhibit ‘K’ can be said to be a non-issue having been leaded and tendered.

5. Whether the learned trial Judge was right in non-suiting the respondent on its counter-claim instead of dismissing it since no evidence was led in support thereof.

Facts:

The appellant herein as plaintiff brought an action at the Federal High Court, Abuja against the defendant/respondent claiming declaratory reliefs and order of reinstatement in respect of his appointment with the defendant/respondent.

The respondent herein as defendant also at the trial court counterclaimed the sum of N278,389.00, 31% interest of the sum claimed.

The accounts of the plaintiff, as the Principal Accounting Assistant IV of the defendant, was audited in 1994 due to some discrepancies discovered. A committee was set up to investigate the alleged discrepancies noticed in the account as a result of the failure of the plaintiff to lodge the monies due to the defendant. The plaintiff and other people mentioned or implicated therein appeared and testified before the panel.

The investigation committee subsequently recommended that the plaintiff should refund the money that fell short, since he was the head of the Account Department. He was therefore suspended indefinitely. Thereafter, the plaintiff made a refund of N10,000 and collected a receipt marked exhibit H. He was subsequently arrested by the police and charged to the Magistrate Court for criminal Breach of Trust, falsification of account, causing disappearance of evidence  and criminal mis-appropriation of the sum of N226,039.00k. The case was however struck out for want of diligent prosecution. While under cross-examination, the plaintiff admitted most of the evidence adduced against him.

At the close of trial and conclusion of the arguments of the counsel for the parties, the trial court dismissed the claim of the plaintiff while the counter-claim of the defendant was non-suited.

The plaintiff/appellant was dissatisfied with the said judgment of the trial court and brought this appeal.