S.k. Williams V. Civil Service Commission, Ogun State (1997)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
The plaintiff/appellant was employed by the then Western State Civil Service as a cleaner in 1969 and he rose to the post of Senior Clerical Officer in the Civil Service in 1982. The plaintiff as a court clerk was alleged to have committed official corruption by extorting the sum of N2,400.00 from one Mr. Amoo a party to a suit No. AB/8/81, to influence the outcome of the judgment, and he was issued a letter of disciplinary proceedings for it, and for absence from duty without leave. The plaintiff denied receiving the money and submitted an excuse duty certificate issued by the State Hospital to cover his absence from duty. It turned out that the Certificate was a light duty one. On 11/10/82 he was interdicted vide letter Ref. CRPA/F.120/162, and on January 1983 he received a letter dismissing him from the public service on ground of absence from duty without leave and official corruption, despite the fact that he had been discharged and acquitted of the alleged official corruption. He has claimed that his dismissal from the Ogun State Civil Service was malicious, mala fide, irregular and contrary to natural justice and the Public Service Commission Regulations 1976. Consequently he has claimed as follows against the defendant:
(a) A declaration that the purported dismissal of the plaintiff from the public service by the defendant vide the defendant’s letter dated 17th January, 1983 is unlawful, null and void and of no effect.
(b) A declaration that the plaintiff is still in the defendant’s employment.
(c) An order reinstating the plaintiff into the Ogun State Civil Service.
(d) An order for the immediate payment of all the plaintiff’s salaries and other entitlements from the 11th of October, 1982 to date of judgment.
Alternatively
N50,000.00 (Fifty thousand Naira) being damages for the wrongful dismissal of the plaintiff by the defendant by a letter dated 17th January, 1983.
The defendant’s case on the other hand is that the plaintiff absented himself from work without leave from 16/8/82-20/8/82 from 23/8/82-30/8/82, but he produced a light duty certificate not excuse duty dated 30/8/82 covering the said days. There was also allegation of official corruption against the plaintiff, and the plaintiff was issued with a letter of disciplinary proceedings in respect of the alleged case of official corruption and absence from duty, which reply was not satisfactory and this led to the dismissal of the plaintiff. This was after he had been interdicted, and all actions were taken in accordance with the provisions of the Public Service Commission Regulations of 1976.
After the exchange of pleadings witnesses gave evidence and their Counsel addressed the Court. The evidence were evaluated and the addresses considered before the learned trial Judge dismissed the plaintiff’s case and pronounced as follows:-
“I am of the view that there was lawful cause for the dismissal for absence from duty without leave on the dates stated in Exhibit J wherein the plaintiff was placed on light duty on those days; the chief Registrar did not receive Exhibits A-A2. Furthermore the plaintiff’s absence from duty on September 13, 1983 also rendered him liable to dismissal, even if it is held that I erred in respect of my conclusion of Exhibits A -A2 and J.
The plaintiff was dissatisfied with the decision of the lower court, hence he appealed to this Court originally on two grounds of appeal which were increased to four after obtaining leave to amend the notice of appeal on 7/12/94. In compliance with Order 6 Rules 2 and 4 of the Court of Appeal Rules 1981 as amended, both parties exchanged briefs of argument which were adopted at the hearing of the appeal. Two issues were raised for determination in the appellant’s brief of argument and these issues were adopted by the respondent in the respondent’s brief of argument. I will treat the issues individually, starting with issue No.1 which is, whether the appellant has not sufficiently explained the reason for his absence from duty as to justify his dismissal from service under General Order 04201.
In arguing this issue learned Counsel for the appellants referred to Exh. ‘F’ the letter of dismissal which reads:-
“I wish to refer to my query Ref. No. C.113/30 of 5th November, 1982 in respect of the above subject matter and your reply of 11th November, 1982 thereto. I also have to inform you that having carefully examined your representations on the query, you are considered to have failed to exculpate yourself and are therefore found to be guilty of misconduct contrary to provisions of General Orders 04102 and 04201. In this connection, following the provision of regulation 56(2)(b)(I) of the Public Service Commission Regulations 1976 you are hereby dismissed from the Ogun State Public Service with immediate effect.”
The said order 04102 reads:-
(a) Any Government servant who absents himself from duty or from Western Nigeria without leave renders himself liable to be dismissed from the service and the onus will rest on him to show that the circumstances do not justify the imposition of the full penalty.”
Regulation 56(2)(c) provides:-
(2) If the officer is in category 3.
(b) If the officer does not avail himself of the opportunity to exculpate himself or if the Head of Department does not consider that the Officer has exculpated himself the Head of Department.
(i) decide the issue; or
(ii) appoint a public officer specified by or under paragraph
(1) of regulation 54 holding powers of inquiry to hold an inquiry into the charge.
(c) At an inquiry under this regulation, the accused officer shall be allowed to cross-examine any witnesses testifying against him, to make a statement and to call witnesses in his defence and to have access to all documentary evidence available against him.”
Learned Counsel for the appellant has submitted that by virtue of order 15801, a civil servant absent from duty owing to ill health and without obtaining leave is deemed to have been absent on sick leave on being established by him subsequently that his absence was as a result of ill health. Learned Counsel for the respondent has replied that Order 15801 does not avail the appellant. I will now look at the evidence to see if the plaintiff has successfully established that his absence on sick leave was established by him. In his evidence in chief the plaintiff testified inter alia as follows:-
“I never absented myself from duty without leave. I was sick between 16th August and 30th August, 1982. I went to the State Hospital Sokenu on 11th August. I was given 3 days excuse duty from 11th August to 13th August. I travelled to Lagos on August 16, it was not a work free day but all civil servants in Ogun State were on strike. I went straight to the General Hospital in Lagos. I was very sick; I was bleeding from the anus. I saw Dr. Solola there, he treated me as an out-patient. I reported daily for dressing. He gave me excuse duty certificates on three occasions during the period he treated me in Lagos. Exhibits A-A2 are the certificates. Initially, I submitted them to the High Court Registry here. I was told to go and exchange them for excuse duty certificate from Ogun State ………….
I took Exhibits A-A2 to Dr. Majekodunmi. He converted it to what I later discovered was a light duty certificate. I submitted the certificate to the Chief Registrar of the High Court here. He later called me and pointed out that what I presented was a light duty certificate. He refused to return it to me but he gave me photocopies. I took it to Dr. Majekodunmi, he rejected it on the ground that he could not issue a new one unless he had the original he had issued. That original was issued in error. I was later dismissed for absenting myself from duty. That is what Exhibit F says.”
Prior to the issuance of Exh. ‘F’ a query was written to the plaintiff, the relevant extract of which reads:-
“It is to be noted with regret that between the 11th August, 1982 when you escaped and the 14th September, 1982 when you reappeared in the High Court, you sent in only one medical ‘certificate excusing you from duty for 3 days viz 11th to 13th August, 1982.
You however submitted 2 other certificates on 15th September 1982 one of which was issued by Doctor Majekodunmi, Chief Consultant State Hospital Abeokuta placing you on light duty from 16th August, 1982 to 20th August, 1982, you nevertheless absented yourself from work without permission or leave on those 13 days and also on 13th September, 1982 making a total of 14 days.”
Sequel to the above query and the plaintiff’s unsatisfactory reply the appointment of the plaintiff was terminated vide Exh. ‘C’, which reads inter alia:”
I also have to inform you that having carefully examined your representations on the query, you are considered to have failed to exculpate yourself and are therefore found to be guilty of misconduct contrary to provisions of General Orders 04102 and 4201.”
I will now go back to the evidence of the plaintiff where under cross-examination he said:-
“I did not produce any excuse duty certificate for September 13, 1982. I was in the office that day. I only went to the State Hospital to see the doctor. I did not say so in my reply Exhibit D. I agree what I said in the second page of that letter is that I arrived from the hospital…………………..I submitted Exhibits A-A2 to the then Chief Registrar Mr. Sekoni on August 30. He said I should change them to that of Ogun State. I checked Exhibits A-A2. I did not check the one given to me by Dr. Majekodunmi. I did all I could to retrieve it but Mr. Sekoni said it had been pasted on a piece of paper on which he had minuted. I did not write any letter to the Chief Registrar to release the certificate to me.”
From the foregoing evidence in chief and cross-examination can be seen the fact that the plaintiff did not produce an excuse duty to the Chief Registrar to cover the period within which he was absent from duty, for if he had, Exhibits A – A2 would have been in possession of the respondents, being original copies, and would have been produced by them. In his reply to Exh. ‘C’, Exh. ‘D’ the plaintiff did not tell the Court that he presented the Chief Registrar with Exhibits A-A2 (as opposed to his oral evidence in Court). Although P.W.1, a Dr. Ajayi from the State Hospital produced Exhibits A-A2 from their record and tendered it, under cross examination he testified that on occasions when he had to convert excuse duty certificates from other hospitals he asked few questions and made notes for future reference, and that in the present case Dr. Majekodunmi did not ask any questions. It is not surprising that Dr. Majekodunmi refused to give an excuse duty when the plaintiff approached him, the second time, in place of the light excuse duty i.e. if PW1’s evidence of his refusal to issue another excuse duty until he saw the original copy of the light duty certificate he gave him is believed. I cannot fathom why the plaintiff did not read through the earlier certificate given to him by Dr. Majekodunmi to discover that it was not a light excuse one before presenting it to the Chief Registrar. In fact a cursory study of Exh. ‘J’ reveals that it was issued on 30/8/82 the very day Exh. A1 and A2 were issued. It is inconceivable that these papers will all bear the same date. In the light of the foregoing discussion the reasoning of the learned trial Judge on Exhibits A-2 cannot be faulted. It reads:-
“But the plaintiff himself did not say in Exhibit ‘D’ that he presented Exhibits’ A-A2 to the Chief Registrar, his oral evidence to that effect is, in my view, an after thought, particularly as there is no letter from him to the Chief Registrar calling for the return of Exhibit J to him, or any letter to Dr. Majekodunmi on the issue. I do not think that as a court clerk and with his experience in the judiciary he would have left the matter hanging as he did if indeed he had submitted Exhibits ‘A’ -A2′ to the Chief Registrar in the first place and had later asked Dr. Majekodunmi to correct the mistake, and the latter refused. In the circumstances, the Chief Registrar could only act on Exhibit “J” which he did.’
On the evaluation of evidence, which learned Counsel for the appellant has argued the learned trial Judge has failed to do, I am satisfied that the learned trial Judge adopted the procedure laid down in Mogaji v. Odofin (1978) 4 SC. 91 page 94, for he put the two sets of evidence on the imaginary scale, and saw that the pendulum tilted to the side of the defendant. I am satisfied that the plaintiff has not proved his case on the balance of probabilities as required by law. It is settled law that in civil cases parties must prove their cases on preponderance of evidence and the balance of probabilities. See Elias v. Omo-Bare (1982) 5 SC 25, and Woluchem v. Gudi (1981) 5 SC 291. For the foregoing reasoning the answer to the supra issue is in the negative, and so grounds of appeal Nos. (1), (2) and (4) to which the issue is married fail.
I will now proceed with the treatment of the second issue which revolves around the essence of pleadings, and more particularly the absence of the plaintiff from duty on 13/9/92. I will reproduce what I consider to be the relevant averments. In his statement of claim the plaintiff averred thus:-
- On 5th November, 1982, the plaintiff was issued a letter of disciplinary proceedings in respect of an alleged official corruption by extorting from one Mr. Amoo, a party in suit No. AB/8/81 still at the material time, pending before the High Court Hall 2, Abeokuta where the plaintiff is a court clerk, the sum of N2,400.00 to influence the outcome of the judgment and for absence from duty without leave.
- The plaintiff on 11th November, 1982, duly replied to the letter mentioned in paragraph 6 above, emphatically denying the allegation of official corruption and explained in details the reasons for his absence from duty. The plaintiff will rely on all the relevant letters at the hearing of this suit.
- As regards absence from duty, the plaintiff avers that he was sick during the period in question and duly submitted Excuse duty certificate issued by the State Hospital Abeokuta.
The defendant joined issues as follows in its statement of defence.
- The defendant avers that on 5th November, 1982 Chief C.A. Sekoni, Chief Registrar High Court of Justice, (as he then was) being the plaintiff’s head of department issued the plaintiff with a letter of disciplinary proceedings in respect of an alleged case of official corruption and absence from duty without leave, and called upon the plaintiff to state his defence in writing within 7 days of the said letter. The defendant will rely on the said letter at the trial of this case.
- The defendant avers with reference to paragraph 7 of the Statement of Claim that the plaintiff stated his defence in his reply denying the allegations contained in the said letter.
I think the content of Exhibits ‘C’ and ‘D’ covers the said 13th September, 1982, and to say that issues were not joined on this date is underscoring the point because the two letters pleaded, as shown above, and the detailed contents of the exhibits form the basis of the action. I have already reproduced the pertinent portion of the two letters above. In this respect I fail to see how the learned trial Judge erred in his finding on the plaintiff’s alleged absence from duty on the said September, 13, 1982. For this reason I find it unnecessary to continue with the arguments in the appellant’s brief of argument on this issue. To this end the answer to issue (2) above is in the affirmative, and so its related ground of appeal No. (3) fails.
In the final analysis the appeal fails in its entirety, and is hereby dismissed. The judgment of the lower court is affirmed. I make no order as to costs.
Other Citations: (1997)LCN/0281(CA)
