The Attorney-general of Kwara State & Ors. V. Alhaja Kike Ojulari (2006)
LawGlobal-Hub Lead Judgment Report
OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of Hon. Justice J. F. Gbadeyan of the Kwara State High Court of Justice, Ilorin, delivered on 30th March, 2004 entering judgment in favour of the plaintiff and dismissing the defendants’ counter-claim.
The facts which gave rise to this appeal are as follows:-
The respondent was employed by Kwara State Water Corporation in 1973. By 1975 she had risen to the rank of Principal Store Officer.
Sometime in December, 1995, the respondent was served a letter from the 2nd appellant alleging that she (the respondent) falsified store record which resulted in losses to the government to the tune of N7,970, 120.00 (Seven Million, Nine Hundred and Seventy Thousand, One Hundred and Twenty Naira) only and that she made away with materials belonging to the appellants without proper documentation resulting in loss of N7,970,120.00 (Seven Million, Nine Hundred and Seventy Thousand, One Hundred and Twenty Naira) only.
Sequel to above, the respondent wrote a reply, giving answers to the allegations levelled against her. Two panels were set up to investigate the matter and based on the findings of the panels, the respondent was sanctioned by the issuance of a letter dated 29th June, 1998, wherein her employment was terminated and she was told to refund the sum of N5,086,258.50 to the Government.
Aggrieved by the dismissal from service and the order to refund the sum of N5,086,258.50 the respondent as plaintiff filed an action in the lower court by a writ of summons dated 20/7/98, and an amended statement of claim on 18/11/2003. The appellant as defendant in the lower court filed on 8/2/2000 a statement of defence and a counter-claim dated 4/2/2000. The respondent filed a reply to the statement of defence and counter-claim on 8/5/2000.
The plaintiff in the lower court claimed the following reliefs:”
i. A declaration that report of Disciplinary Committee on losses of Japanese AID of Kwara State Water Corporation as it affects the plaintiff is null and void and of no effect whatsoever as the procedure adopted was irregular and the plaintiff denied fair hearing.
ii. An order quashing the white paper report of the Disciplinary Committee on losses of Japanese grant-aid materials, recovery of losses, ordering the plaintiff to refund the sum of N5,086,258.50 to Government coffers, being ultra vires.
iii. A declaration that the Disciplinary Committee on losses of Japanese aid materials of Kwara State Water Corporation has no power to try or determine the involvement of the plaintiff in any allegation of fraud or falsification of records which are criminal allegations except by law court created under the 1979 Constitution of the Federal Republic of Nigeria.
iv. A declaration that the purported dismissal of the plaintiff from the service of Kwara State Government as contained in the letter of 29th June, 1998 ref. No.KWRRD/S101/58 addressed to the plaintiff by the 2nd defendant is null and void and of no effect whatsoever.
v. An order of this Honourable Court re-instating the plaintiff to her position as Principal Stores Officer with the Kwara State Water Corporation without prejudiced (sic) to her entitlements and promotions accruable to her during the period of her purported dismissal.
vi. An order of perpetual injunction restraining the defendants through their servants, agents, privies, or anybody acting on their complaints or authority from giving effect or implementing the letter of 29th June, 1998 ref. No. KWRRD/S/101/58.
vii. An order of perpetual injunction restraining the defendants, by itself, or servants, agents, privies or anybody acting on their complaints or authority from interfering in any way or manner with the employment of the plaintiff and preserving her rights to disengage or retire from the services of Kwara State Government in a manner consistent with the totality of her rights and benefits under the Civil Service Rules of Kwara State.
viii. The sum of N5m being damages for wrongful dismissal”.
The defendants now appellants counter-claimed as follows in paragraphs 16-19 of the statement of defence and counter-claim:-
“16. The defendants repeat paragraphs 1 to 15 of their statement of defence.
The defendants aver that the sum of N5,086,258.50 was discovered to be the value of the missing materials under the care of the plaintiff.
- The defendants aver further that all documents relevant to the missing materials shall be found and rely (sic) upon at the hearing thereof.
- The defendants will contend at the trial of this action that the plaintiff is not entitled to claim as per her writ of summons and statement of claim and that the claim be dismissed with substantial cost as same is frivolous and mere gold-digging.”
Whereof the defendants claim against the plaintiff as follows:
“(a) The sum of N5,086,258.50 being the value of the materials misappropriated by the plaintiff.
10% interest on the judgment sum until same is liquidated.”
At the trial, the plaintiff now the respondent gave evidence on her own behalf as the sole witness and tendered eleven exhibits.
The defendants now the appellants called two witnesses and tendered two exhibits. The learned counsel on both sides submitted and later adopted written addresses.
In a considered judgment the learned trial Judge held as follows:
” … I am of the firm view that in the circumstances of this case, the dismissal of the plaintiff based on the unadmitted fraud and falsification, without proper criminal trial and conviction is wrongful (unlawful) null and void. It is trite that nothing stands on a void and stamp. See Ulegbede’s case at p. 226.
Having held the dismissal to be void, the order to refund any amount, inter-alia, cannot stand. The counter-claim cannot stand and it, accordingly, fails. In conclusion, the plaintiff’s case succeeds in its entirety and judgment is given as per the writ of summons.”
The appellants filed an amended notice of appeal on 23/8/05 which was deemed filed on 12/10105. The appellants’ counsel adopted the brief filed on 12/10/05. The respondent filed respondent’s brief dated 11/11/05 on 14/11/05. The appellants identified 3 issues for determination in this case. They are stated as follows:-
- Whether from the totality of pleadings and evidence, the respondent must be tried by a court of law before the appellants can dismiss her from service.
- Whether from the totality of the evidence and pleadings in this case, the respondent was given fair hearing prior to her dismissal from service.
- Whether the trial Judge’s refusal and subsequent dismissal without consideration on the merit of the appellants counter-claim was proper.
The respondent’s counsel formulated the following issues for determination.
“i. Whether the trial court is right to have held that the dismissal of the respondent is wrongful.
ii. Whether it was established that the respondent has committed any fraud to justify her dismissal.
iii. Whether the appellants proved their counter-claim against the respondent. I shall adopt the three issues as formulated by the appellants’ counsel since I am of the view that they adequately reflect the complaints in the grounds of appeal and they include the issues raised thereon by the respondent’s counsel.
The first issue for determination is whether or not the respondent must be tried by a court of law before the appellants can dismiss her from service. On this issue, Mr. C. O. Toyin Pinheiro argued that following Salihu v. Fougerolle-Fougerolle (Nig.) Plc. (2003) 7 NWLR (Pt. 818) pg. 1 at 14 – 16, the appellants as employer had a right to terminate the contract of employment between them and the respondent as employee more so if the employee had committed serious offences. He argued that since parties have both pleaded and relied on the Civil Service Rules of Kwara State which contains no provision that the appellants must prosecute a staff before terminating his/her service on grounds of fraud, the appellants had a right to terminate the respondent’s employment. He cited Ante v. Unical (2001) 3 NWLR (Pt. 700) pg. 239 at pg. 258. He submitted that an employer can dismiss an employee in breach of the contract of employment. He argued that the position of the law has shifted and that prosecution before a law court before dismissal of an employee is no more necessary. He cited Ogundare, JSC in Osakwe v. Nig. Paper Mills Ltd. (1998) 10 NWLR (Pt. 568) pg. 12 – 14 where His Lordship held inter alia that management may summarily dismiss any employee found guilty of serious misconduct like dereliction of duty, corruption, disregard of rules and regulations in force e.t.c. He submitted that the complaints against the respondent in the case at hand touched on gross misconduct and negligence of duty.
On this issue, the respondent’s counsel Mr. Lawal Rabana had submitted that whether an employee can be summarily dismissed is dependent on the conditions of service of the employee and the nature of offence committed or the allegations made against the employee.
He cited sections 17(1), 17(2), 19 of the Water Corporation Law.
The respondent’s counsel conceded that an employer can dismiss an employee on proven cases of misconduct but such dismissal must be done in accordance with the law or rules governing the employment. He adopted two different slants to the argument of this issue. He argued that exhibit 9 shows that the respondent’s appointment was terminated on the directive of the Military Administrator of Kwara State who is not synonymous with the Kwara State Civil Service Commission which applies to the Kwara State Civil Service Rules. He submitted that paragraph 02404(a) of the Civil Service Rules under which the respondent was dismissed did not provide for the unilateral termination of her appointment. He submitted that exhibit 10 is the contract of employment and the dismissal of the respondent by the Military Administrator is a nullity as she should have been dismissed in accordance with the Kwara State Water Corporation Law. He cited Mil Adm. Benue State v. Ulegede (2001) 17 NWLR (Pt. 741) pg. 194 at 225 – 226.
My humble view is that this argument is a complete departure from any of the issues or arguments raised by appellants’ counsel in his brief. The respondent neither pleaded nor led evidence on that aspect of the matter during the trial. In fact, paragraph 1 of the amended statement of claim states that the Water Corporation was under the management and control of the Ministry of Water Resources. The respondent brought up the issue of the wrong authority dismissing the respondent for the 1st time during counsel’s address at the trial court. The trial court held that since the disciplinary procedure was outside the Kwara State Water Corporation Law, everything done was null and void. See line 1 pg. 86 record of proceedings. However, the appellants’ counsel did not formulate any ground of appeal on this conclusion of the trial Judge and no issue or argument can therefore emanate from it.
Where argument or issue does not derive or is not based on the grounds of appeal, it must be struck out as incompetent see: Umeano Achiakpa v. Josiah Nduka & Ors. (2001) 14 NWLR (Pt.734) 623, (2001) 7 SCNJ 585; Madam Korede v. Prince Adedokun (2001) 15 NWLR (Pt.736) 483, (2001) 7 SCNJ 370; Ogidi v. Chief D. B. Egba & Ors. (1999) 10 NWLR (Pt.621) 42, (1999) 6 SCNJ 107. However, for what it is worth, my humble view is that the case of Military Administrator, Benue v. Ulegede supra should be distinguished from this case. Herein, the parties did not join issues on who should be the appropriate authority to dismiss the respondent. Both parties agreed that the respondent was an employee of the Kwara State Water Corporation, a statutory body under the supervision of the Kwara State Ministry of Water Resources. Thus, the question of the appropriate disciplinary body who ought to have issued the letter of dismissal was not an issue at the trial and should not be an issue now. In any event, neither party appealed against the finding of the trial court on this matter.
In answer to the appellants counsel’s arguments on issue 1, in the brief filed in this court, the respondent’s counsel, Mr. Lawal-Rabana, Esq. had argued on this point that since fraud is a criminal offence, for it to form the basis for dismissal, the respondent must have been tried and convicted by a court of competent jurisdiction. He argued that a criminal misconduct is different from civil or administrative misconduct. He cited Ekundayo v. University of Ibadan (2000) 12 NWLR (Pt. 681) pg. 220. He cited Savannah Bank v. Fakokun (2002) 1 NWLR (Pt. 749) pg. 544 at pg. 559; Sofekun v. Akinyemi (1980) All NLR 153 at pg. 164-5, (1980) 5-7 SC; Geidam v. NEPA (2001) 2 NWLR (Pt. 696) pg. 45 at pg. 59-60.
He submitted that all the above cases cited have crystallized into the principle that once an allegation of crime is made against an employee and it forms the basis of discipline it must first be determined by a competent court not by any administrative panel. He submitted that Salihu v. Fougerolle & Fougerolle supra departed from previous authority and should not be followed. He submitted that the respondent denied all allegations made against her and that only a court of competent jurisdiction can pronounce a verdict of guilt on a citizen. This right is protected by the Constitution.
I agree that there appears to be confusion as regards the state of the law on this matter. Let us examine recent judicial pronouncements.
It appears to me that the decision in Dr. G. O. Sofekun v. Chief N. A. Akinyemi & 3 Ors. (1980) All NLR pg. 153 has been substantially modified. The Supreme Court had held in that case that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated to ensure the accused gets a fair hearing as set out in subsections 4 – 10 of section 22 of the 1963 Constitution. It was their Lordships’ view that if an amendment of the Public Service Commission Regulation of Western Region seeking to provide for disciplinary proceedings and dismissal of public officers for criminal offences without prior institution of criminal proceeding was not struck down as ultra vires, the judicial powers of the courts would be wholly absorbed by various commissions or organs of the executive branch of the State Government. Hence a long line of cases emerged including Denloye v. MDPDC (1968) 1 All NLR 306, FCSC v. Laoye (1989) 2 NWLR (Pt. 106) pg. 652; Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) pg. 550, Ekundayo v. U. I supra; etc
Where an employee is sought to be removed in a contract with statutory flavour, that is a contract of employment wherein the procedures for employment and discipline including dismissal are spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is null and void and of no effect. See: Geidam v. NEPA (2001) 2 NWLR (Pt. 696) pg. 45 at pg. 55; UBN v. Ogboh (1995) 2 NWLR (Pt. 380) pg. 647. In both cases, cited above, it was held that since the allegations were of misconduct amounting to crime, the employer had no summary right of dismissal until the employee had been found guilty by the law court. In contrast, the Supreme Court in Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt. 888) pg. 663 held that in statutory employment as well as in private employment, the employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bothering on criminality, and in such a case, it is not necessary nor is it required under S.36(1) of the 1999 Constitution that an employee must first be tried in a court of law.
I agree with the learned appellants’ counsel that following the case of Yusuf v. Union Bank Ltd. (1996) 6 NWLR (Pt. 457) pg. 632, (1996) 6 SCNJ 201 the prosecution of an employee before the law court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct. It would all depend on the circumstances of each case. In Yusuf v. Union Bank Ltd., the employer’s decision to dismiss summarily without recourse to the law courts an employee who had committed gross misconduct which bordered on criminality was upheld by the Supreme Court. The trial court had found that indeed the employee had committed acts of gross misconduct which justified his summary dismissal.
The case of Salihu v. Fougerolle-Fougerolle supra must be distinguished from this case. In that case, this court held that where an employee accused of misconduct bothering on criminality not only admits that he actually committed the act of misconduct and the employee’s condition of service provide for the power of the employer to summarily dismiss without prior recourse to the law courts, the employer can summarily dismiss. To my mind, the case of Arinze v. FBN Ltd. supra must also be distinguished from the facts and circumstances of this case. In this instance, the respondent has been accused outright of forgery (a criminal offence) and stealing the sum of N5,086,258.50 (also a criminal offence for which the employer was demanding restitution). This is not a case of “allegation of offences bordering on criminality”. It is an outright charge of having committed serious offences falling under the category of felony. In Arinze v. FBN the employer with proven evidence of insubordination and fraudulent claim of money, the finding of the trial court was that he was given fair hearing. Moreover the trial court had considered the case on the facts and found the allegations “proven” against the employee.
It seems to me that there must be a clear distinction which the learned Justices of the Supreme Court have always taken into consideration between gross misconduct for instance administrative insubordination and dishonesty i.e. telling lies etc – not serious enough to be labeled a “criminal offence” on one hand, and an allegation of outright commission of an offence contrary to the Penal Code. The second paragraph of exhibit 9 – the letter of dismissal written to the respondent shows that she was dismissed because it was believed and accepted that she had committed ‘fraud’. The letter reads as follows:
“In view of the level of your involvement in the fraud, I am directed to inform you that you are dismissed from service with immediate effect. In addition, you are to refund the sum of N5,086, 258.50 to the Government coffers, being the value of missing materials in the store under your care. ” (Italics mine)
The Supreme Court held in Raymond S. Dongtoe v. C.S. C. Plateau State & Ors. (2001) 9 NWLR (Pt.717) 132, (2001) 4 S.C.N.J. 131 had found that it was not every allegation of crime against an employee that must be proved before the regular criminal courts. A domestic tribunal is competent to take action against an official accused in respect of his conduct where the official admits the commission of the misconduct on which the allegation is founded if otherwise, the official may not be disciplined until the official has been tried before a regular court – Admission of the official may be inferred from conduct or evidence e.g. his reply to a query. Also the contract of employment must empower the employer to summarily dismiss an employee in such an event. Thus, a domestic tribunal is not competent to usurp the constitutional function of regular courts of law. Karibi-Whyte, J.S.C. in Dongtoe v. Civil Service Plateau gave a very clear enunciation of the law on this issue. His Lordship stated that a decision is authority for what it actually decides and judgments should be read in the light of the facts on which they were decided. When there is an allegation of the commission of criminal offences against the employee by an employer which has been denied by the accused, the employer making the accusation of the commission of criminal offences as a basis of dismissal of the employee from service must satisfy the constitutional requirement by establishing the guilt of the employee according to the law. The burden of proof in criminal cases on an accuser is proof beyond reasonable doubt. An administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. Where there has been an admission of guilt the need to prove any allegation of crime does not arise. Dongtoe v. Civil Service supra at pg. 155 – 160.
Thus, my humble opinion is that the position of the decision law on this matter now is that where there is no admission of guilt on the part of an employee accused of not just administrative misconduct, but serious criminal offences, the employer is obliged to prosecute the employee in the law court to prove beyond reasonable doubt the allegation of crime. To my mind this cannot but be so. Administrative misconduct may not destroy a person’s name and reputation, but a criminal allegation may destroy name and careers for generations to come. Hence the need for the impartial arbiter – the law courts as opposed to domestic tribunals with its attendant limitations.
I am of the humble but firm view that in the circumstances of this case, in view of the consistent denial by the respondent of the charges of falsification of records, fraud, etc levied against the respondent which are serious criminal allegations, the appellants were obliged to prosecute her successfully before a court of competent jurisdiction before they could dismiss her. The report and findings of the panel of inquiry could have been used as the basis of the criminal prosecution. The appellants have not shown that the contract of employment authorized the government to dismiss summarily where there are serious allegations of crime. The first issue is resolved in favour of the respondent.
Another offshoot of the first issue is the 2nd issue as couched and argued by the respondent’s counsel in his brief. To my mind, this issue as set out by the respondent’s counsel did not arise from any of the grounds of appeal nor is it an off-shoot of issues raised by the appellants. The respondent’s counsel had raised the issue of whether or not the respondent had committed any fraud to justify her dismissal. The determination of whether a fraud was committed or not was not an issue before the trial court and the court rightly made no pronouncement on it.
As the trial court rightly said, only a court of competent jurisdiction can determine whether or not “fraud” which is a felony had been committed based on the evidence led before it. It is unrelated to any complaint in any ground of appeal. In the circumstances, I hold that this issue is incompetent and it is struck out.
The 2nd issue for determination is whether or not the respondent was given a fair hearing prior to her dismissal from service.
On this issue, the appellants’ counsel had submitted that the respondent was afforded a fair hearing and that the appellants complied with the Civil Service Rules. He argued that the respondent was served with a query containing complaints against her. She appeared 1st before the Investigation Panel and later before the Ministerial Disciplinary Committee. She made representations before both panels. Learned appellants’ counsel argued that the obligation of the appellants in accordance with the authority of Alamona v. Bida (2000) 8 NWLR (Pt. 668) pg. 186 at 192 – 193 did not exceed disclosure of the employer’s complaints to the employee and the employee given a chance to react to the allegations.
The respondent’s counsel on the other hand argued that the standard of fair hearing required in a criminal allegation is higher than that in ordinary cases of misconduct without imputation of criminality. Except where admitted, every criminal allegation must be proved beyond any reasonable doubt. This will include proof of all material facts against the employee, and opportunity for the employee to cross-examine his accusers. Anything short of this procedure will fall short of fair hearing.
The learned trial Judge on this issue had stated thus:
“There is no evidence from the defence of what transpired at the level of the investigation or studying panel headed by the then Honourable Attorney-General to debunk the claim of the plaintiff that she was not given a fair hearing as she was not confronted with her accusers and the documents allegedly falsified”.
He stated further at lines 19 – 28, page 84 of the records:
“One thing stands out clearly throughout the departmental investigation and investigation at any other level. The plaintiff maintained that the plaintiff never admitted any involvement or culpability in the whole saga. In such a situation the unbiased arbiter is the competent criminal court and not even the Chief Stores Officer if called as a witness but he never was called at any stage. The matter was not helped by the two defence witnesses who were at the best accusers, prosecutors and Judges and who in spite of their limited knowledge in this matter, still clamor before this court at trial of this case to have the plaintiff nailed”.
In essence, the trial Judge found that the appellants did not discharge the burden of evidential proof which had shifted on them by the consistent denial of the respondent throughout the disciplinary proceedings and the trial.
It is common ground between the parties that she was a civil servant governed by the Kwara State Civil Service Rules, the Water Corporation Law and the conditions of service of the Kwara State Utility Board. Paragraph 02404(a) of the State Civil Service Rules provides:-
“An appointment or contract may be terminated by the Government at any time in accordance with the terms specified in the contract itself.”
The evidence at the trial court was that it was the Kwara State Utility Board which metamorphosed into the Kwara State Water Corporation. The Utility Board had conditions of service which were binding on the employer and employees of the Kwara State Water Corporation. To determine whether indeed the respondent received fair hearing before the Ad hoc Committee to wit: “The Panel on investigating of stock of Japanese grant aid material”, the court must determine whether the Panel in its investigation followed the Civil Service Rules – exhibit 11, the Water Corporation Law – exhibit 10 and the conditions of service contained in exhibit D2.
The respondent tendered exhibit 11 which is the Civil Service Rules. She also tendered the Kwara State Water Corporation Law No.8 of 1992 as exhibit 10. The appellants also tendered exhibit ‘D2’ the conditions of service of the Kwara State Utility Board.
Chapter III of the conditions of service of the Kwara State Utility Board, exhibit D2 is headed “Discipline and Cessation of Appointment”. Paragraph 26 therefore provides for the “Conduct of Disciplinary Proceedings”. It sets out the procedure to be followed when taking disciplinary action against an employee of the Board.
It is set out hereunder:
“Dismissal
(a) The Board may dismiss an officer on grounds of dishonesty, gross misconduct or conviction which makes his continued employment prejudicial to the proper working of the Board.
(b) An officer who is dismissed shall only be entitled to his pay up to the date of dismissal.”
Conduct of Disciplinary Proceedings:
If the nature of an alleged offence is such as to warrant summary termination under section 21 (b) or summary dismissal under section 22 hereof the following procedures shall be followed –
(1) The officer shall be notified in writing of the grounds upon which it is intended to terminate his appointment summarily or to dismiss him and he shall be given full opportunity to exculpate himself.
(2) The officer shall be suspended from work by the Board on the recommendation of the Establishments Committee until the conduct or case has been fully investigated and/or decided. Suspension shall not normally exceed one month on the aggregate and during suspension the officer concerned shall be required to hand over any property of the Board in his charge to any other officer as the Board may direct and he shall be forbidden to carryon his duties or visit his place of work except with the express permission of the General Manager.
(3) The matter shall be investigated by the Establishments Committee.
(4) If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witness.
(5) An officer shall be given access to all pieces of documentary evidence which are intended to be used against him.
(6) If at the end of the investigation the Board does not find that the established offence justifies the full penalty of summary dismissal or termination a lesser penalty may be imposed.
(7) Notwithstanding the fact that a case carrying a penalty of summary dismissal or termination has been proved against an officer the Board may impose a lesser penalty for reasons, inter alia, etc …”
The Civil Service Rules exhibit 11 apply to all civil servants except where they conflict with specific terms approved by the government and written into the contract of employment or letters of appointment.
Chapter 4 stipulates the disciplinary procedure in paragraph 04107 headed “serious misconduct”. It is stated hereunder:
“Serious Misconduct”
04107 – The term ‘officer’ in this Rule refers to all officers in the Civil Service except the following:
(a) Officers on contract or month-to-month terms;
(b) unestablished staff, and;
(c) non-pensionable staff, etc.
An officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with the following rules unless the method of dismissal is otherwise provided for in these Civil Service Rules:
(i) The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;
(ii) The matter shall be investigated by the appropriate authority with the aid of the Head of the Officer’s Department, and such other officer or officers as the appropriate authority may appoint;
(iii) If any witnesses are called to give evidence, the officer shall be present and to put questions to the witnesses;
(iv) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;
(v) If the officer does not furnish any representations within the time fixed, the State Civil Service Commission may take such action as it deems appropriate against him;
(vi) If the officer submits his representations and the Commission is not satisfied that he has exculpate himself and considers that the officer should be dismissed, it shall take action accordingly;
(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;
(viii) If upon considering the representation of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but that the facts of the case disclose grounds for requiring him to retire in accordance with Rule 04114, it shall direct accordingly;
(ix) In exceptional cases, if upon considering the officer’s representations the Commission is of the opinion that the case against the officer needs further clarification; it shall appoint a Committee to enquire into the matter.
The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned and to the nature of the complaints which are the subject of the inquiry. The Head of the Officer’s Department shall not be a member of the Committee.”
It is obvious that the rules and conditions of service governing the employment of the respondent clearly provide exhaustive procedure to be followed when undertaking disciplinary action against an employee. Were these procedures followed in the respondent’s case? The trial Judge found that the conduct of the Investigation Panel was less than fair. He evaluated the evidence led before him as follows:-
“DW2 is Abdul Wahab Mohammed of Sawmill Garage Road, Ilorin. He is a civil servant of the Water Corporation working as the Chief Stock Verifier. He said that he called for the books and after verifying all the stocks in the area of electrical, mechanical and plumbering materials, he found irregularities and when the physical counting was done, discrepancies were detected and he reported same to the management. He identified their report of the committee which found fraud. He claimed that every document was shown to the plaintiff and she was given full opportunity to defend herself though, apparently, there is no document reflecting that she was given such opportunity. Under cross-examination DW2 claimed to be in charge of all stores of the Corporation but did not have anything to do with the arrival of the Japanese materials and the physical inspection of the items when they arrived. He further said that it is the Chief Stores Officer who kept the records of the items. The Chief Stores Officer was never called as a witness”.
“He admitted that exhibit D1 does not contain the list of the missing items and would not know if his employer reported the matter to the police. It is pertinent to note, however, that exhibit D1 shows that DW2 served on the investigating panel.”
Where an appointment of a civil servant is terminated in accordance with the Civil Service Rules, the civil servant has no valid cause of action against the terminating authority or body. A civil servant can only sue for wrongful dismissal or termination of appointment where the dismissal or termination is not within the Civil Service Rules. See Charles Udegbunam v. F.C.D.A. & Ors. (2003) 10 NWLR (Pt. 829) pg. 48.
From the evidence of the respondent at the trial which was not seriously controverted by cross-examination, she was not faced with her accusers nor the documents allegedly forged by her. She was not cross-examined during the trial on her evidence that paragraphs c, d, and e of exhibit D2 were violated during the panel’s investigation. The respondent also maintained that Rule 04107(iii), (iv) and (ix) of exhibit 11 were not followed.
The Chief Stock Verifier D.W.2 did not verify the stock in her presence and he also served as a member of the investigation panel.
In fact Rule 04107(ix) provides that the Head of Department of the employee cannot be a member of the committee investigating her.
In this case her boss or supervisor – DW2 and chief accuser investigated her Obviously the rules of natural justice had been breached. He was the main accuser – being the person who found the stock short and he was also on the panel. This is in breach of the legal maxim nemo judex in causa sua. The respondent said in her evidence on oath:
“The checking started on the 4th October, 1994 it was during this exercise that the store verifier one Mr. Bisi Mohammed called in our office and demanded for the S.I.Vs for all Japanese aid materials, SRVs the ledgers.
He then went into the store to do some checking. After the said Mr. Bisi Mohammed completed the checking.
He only informed me that he would call on me later. He never showed me the list of what he checked, and discovered and he did not give me any auditing book or the list of what he discovered for counter-signing as it is the normal procedure. I did not see this Mr. Bisi Mohammed until I appeared before the panel”.
See pg. 80 lines 27-41 of the records
Exhibit D2 the report of the Panel of Inquiry did not really help the appellants’ case since there is no record of proceedings of the panel to show that the respondent was given fair hearing. At the second inquiry conducted at the Governor’s Office, she was only asked questions and told to go away. Her answer to the query given to her exhibit 8 raised some questions and issues that should have been resolved at the inquiry stage and even at the trial court. The respondent made specific allegations in her answer to the query – exhibit 8. For example, she claimed that she did not open the crates until stock taking was ordered. D.W.1 said at pg. 72 of the record of proceedings that he broke open the crates himself. Also she was not there when the stock verifier did the stock taking and found her short.
The evidential burden of proving that she was given a fair trial had shifted to the appellants after her discharge of the legal burden in her pleading and her evidential burden on oath. In this context the trial Judge found:-
“There is no evidence from the defence of what transpired at the level of the investigation or studying panel headed by the then Honourable Attorney-General to debunk the claim of the plaintiff that she was not given a fair trial as she was not confronted with her accusers and the documents allegedly falsified”.
A statutory body must comply with the rules of natural justice before implementing the recommendation of a tribunal which involves the civil rights and obligations of a person. A. O. Adeyemi Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt.300) 426, (1993) 7 SCNJ 304. Those whom she accused should have been made to confront her. The doctrine of fair hearing and the rules of natural justice are not fanciful or esoteric. They are based on practical substantial doctrine and should be so implemented. All the regulations binding her employment provide that she should have had the opportunity to cross-examine her accusers. How could she do this when her major accuser was on the panel investigating her? Surely, the concept of fair hearing demands more than the provision of avenue for a question and answer session between the accuser and the accused. Fair hearing should be an opportunity not only to be heard but to be heard by an apparently impartial panel. It is my view that the rules of natural justice were not followed in this case and thus the respondent did not receive fair hearing and the appellants should not have dismissed her on the report and recommendation of the panel. See Dr. Tunde Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290, (1999) 6 S.C.NJ. 295. The 2nd issue is resolved in favour of the respondent.
The 3rd issue raised by the appellants and also adopted by this court is whether or not the appellants proved their counter-claim and the trial court was wrong to have summarily dismissed it. The appellants’ counsel had argued on this point that the appellants’ right to counter-claim at the lower court was not diminished by the outcome of the respondent’s claim. He cited Effiom v. Ironbar (2000) 11 NWLR (Pt. 678) pg. 344 at 347. He submitted that the counter-claim should have been treated as a separate and independent action.
He also cited Jeric (Nig.) Ltd. v. U.B.N. Plc. (2000) 15 NWLR (Pt.691) 447 at 450. Learned appellants’ counsel argued that the respondent never challenged or controverted the evidence led in proof of the appellants’ counter-claim and thus the decision of the trial court was perverse and should be dismissed.
The evidence before the trial court in respect of the counterclaim was as follows:-
“In the report the total amount found missing was N5,086,258.50, we priced the items and totaled the cost.
The missing items are contained in pages 5 & 6. The plaintiff was made to know of the missing items. We listed the items for the plaintiff to know all that went wrong. We want the plaintiff to refund to the Corporation the total sum with 10% as interest.”
The trial court held in respect of the counter-claim:-
“Having held the dismissal to be void, the order to refund any amount, inter alia, cannot stand. The counter-claim cannot stand and it accordingly fails”.
The respondent’s counsel argued that the appellants failed to prove the counter-claim at the trial court. The appellants relied heavily on exhibit D1 to prove the counter-claim. The respondent’s counsel argued that in spite of the evidence of exhibit D1, D.W.1 and D.W.2 there is no evidence of the quantity of items missing and the price per unit. The Japanese price and the conversion rate applied to give the total sum being counter-claimed was not in evidence before the trial court.
It is trite that a counter-claim is a separate and distinct action and should be treated as such. However, the law recognizes instances of exception to this general rule.
The counter-claim of the appellants in this case is a claim for restitution of the value of goods allegedly stolen by the respondent.
Thus the appellants’ counter-claim was dependent on the outcome of the respondent’s claim. Most of the defendants/appellants pleadings were taken up with answering the respondent’s claim. The gist of the defence was that items under the respondent care were found missing therefore she stole them and should refund their value.
To my mind, it is obvious from the facts and circumstances of this case that the claim and counter-claim are interwoven and intertwined as the facts relied upon by the appellants in the statement of defence are the same facts relied on by them as giving rise to the counter-claim. Thus no judgment could have been given for the appellants on the counter-claim without considering the evidence led in respect of the facts pleaded by the respondent in the statement of claim and reply to counter-claim. In this case the essential evidence and issues needed to determine the counter-claim had already been well articulated by the learned trial Judge in determining the respondent’s claim. See Dabup v. Kolo (1993) 12 SCNJ 1 at 12; (1993) 9 NWLR (Pt. 317) pg. 254.
The basis of the learned trial Judge’s dismissal of the counter-claim was his earlier finding and conclusion that without a prior finding of fraud by a court of competent jurisdiction against the respondent in the sum claimed by the appellants, the appellants’ counter-claim could not stand. In this case, once the trial court found that the respondent’s dismissal for fraud was wrongful the counter-claim fell to the ground. You cannot be asked to restore what you have not found to have stolen. Where common questions determinative of a claim and a counter-claim arise in a case, the trial court is not expected to consider the same questions separately in relation to the counter-claim. See Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253, (2000) 2 S.C.N.J. 180. I quite agree with the learned trial Judge and cannot in this context fault his reasons for the summary dismissal of the appellants’ counter-claim. The issue is resolved in favour of the respondent.
In the circumstances, this appeal totally lacks merit and it is hereby dismissed. I award N10,000.00 costs for the respondent against the appellants.
Other Citations: (2006)LCN/1952(CA)
