Emmanuel Okeme V. Civil Service Commission, Edo State & Ors (2000)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
This is an appeal from the judgment delivered by Aiwerioghene, J. on 11th February, 1994 at Benin High Court in suit No. B/313/89. The Appellant was the plaintiff while the 1st, 2nd and 3rd respondents were the original defendants. The 4th and 5th respondents were later joined as defendants. The plaintiff’s claim, which was filed on 16th August, 1989, is as set out in paragraph 24 of the further amended statement of claim. It is as follows:
a declaration that his purported dismissal from the Civil Service of Bendel State on the Authority of letter No.G. 304/74 of 11th March, 1987, is unconstitutional, null and void;
(ii) a declaration that Secretary for Administration, Finance and Establishment is at all times material incompetent, alone or in conjunction with other members of staff of the Ministry qua tales, to convict plaintiff on a criminal charge particularly of fraud, more particularly as no charges were preferred against him and no plea was taken;
(iii) an order for special damages, being in the amount of total emoluments due to plaintiff from the date of dismissal until retirement age, taking account of standard increments and allowances;
(iv) an order that the necessary calculations be made by the appropriate Dept. of the Government of Edo and/or Delta States as may be adjudged and directed by this Honourable court, and be filed in court and served on the parties to this suit.
(v) in the alternative to (iii) and (iv):
(a) an order for reinstatement with effect from 1st February, 1987;
(b) an order for payment to him of all emoluments due to him from 1st February, 1987, until reinstatement.
(vi) General damages.”
Pleadings were filed and exchanged. The plaintiff amended his statement of claim twice. The further amended statement of claim was filed after the plaintiff had concluded giving his evidence. The 1st, 2nd and 3rd respondents, who were respectively the 1st, 2nd and 3rd defendants were the only defendants as at the time the plaintiff gave his evidence and closed his case. The 4th and 5th respondents were joined as defendants after the former Bendel State was split into two States viz: Edo and Delta States in 1991 by the States (Creation and Transitional Provisions) Decree No. 37 of 1991. The only evidence given at the trial was that by the plaintiff. No evidence was given by the defence even though the 1st, 2nd and 3rd defendants filed a statement of defence. The 4th and 5th defendants did not file any defence after they had been joined. The plaintiff’s case as pleaded and given in evidence by him at the trial was that he was a civil servant in the public service of now defunct Bendel State. He was in the Cooperative Division of the Ministry of Commerce and Industry. In June, 1986 while at his duty station at Oleh, he and some other members of staff of the Cooperative Division based at Oleh were asked to carry out registration of business premises in Isoko Local Government Area with the headquarters at Oleh. He joined his other colleagues in carrying out the exercise. The exercise involved registration of business premises for which registration fees were collected. Treasury receipts were issued for the payments made. In the course of the exercise, the plaintiff said they received complaints of cheating from the chairman of the Revenue Task Force, Isoko Local Government Area. The complaints were from one Benjamin Igbebare and one French Edure. The complaint from both men was that the amount on the receipt issued to each of them was less than what each of them paid. About a week later, a story captioned “Fraud in the Ministry” was carried in the “Community Concord” newspaper issue of Friday, September, 26 1986 – (admitted in evidence as Exhibit C). The story as carried on the front page of the newspaper reads, inter alia, thus:
“A large- scale fraud has been uncovered in the Bendel State Ministry of Commerce and Industries, Oleh. The fraud which was said to have run into thousands of naira was allegedly carried out by some officials of the ministry under the pre that they were registering new business premises. Dependable sources at Oleh told Bendel Community Concord that following a directive from Benin, officials of the Commerce Ministry approached citizens in the area to register their business premises or face the risk of being sealed up. Following the threat, our source further revealed, traders promptly responded. But what baffled the traders, however, was that receipts so issued did not reflect the actual amount paid. For while traders who paid N25 were issued with N10 receipts others who paid N45 were issued with N25 receipts. When some of the curious traders demanded an explanation, the officials were said to have replied that the balance would be reflected on the certificate of registration of business premises to be issued to them later…”
The names of some traders who made payments but were issued receipts reflecting less than the amounts they paid were given together with the numbers and the amounts on the receipts issued to them were given in the newspaper report.
The plaintiff further told the court in the course of his evidence that he bought a copy of the newspaper (Exhibit C) and read the story. As a reaction to the publication, the Secretary for Administration, Finance and Establishment (hereinafter referred to as “SAFE”) of the Ministry of Commerce and Industries at the headquarters in Benin, paid a visit to Oleh on 30th September, 1986. The man was said to have made random sampling of shops, stores and business houses in the town for about 4 hours during the visit. Thereafter, he came to the Ministry’s branch office in the town. There, he invited the plaintiff and the other members of staff involved in the exercise to report at his office in Benin on 2nd October, 1986. The plaintiff said he complied with the directive by reporting at their Benin headquarters on 2nd October, 1986.
While in Benin as requested, he met the SAFE in his Benin Office. He said further that the man told him to narrate how they carried out their assignment of registration of business premises. The plaintiff said he told him how they carried out the assignment. He said further that the discussion was brief and that the entire interview lasted about 12 minutes. At the end of the interview, he said he was told to go away. The SAFE was said to be with only his secretary throughout the period of he interview. He said further that each of his about 4 other colleagues also went in to see the man in turns.
After the interview and about 10th November, 1986, he said each of them was issued with a query (his copy dated 10th November, 1986 was admitted as Exhibit A). He replied the query and his reply dated 11th November, 1986 was admitted as Exhibit B. after his reply to the query, he received a letter dated 21st March, 1987 (Exhibit D) from the Ministry. He was informed of his dismissal from the service in the said letter. On receipt of the letter of dismissal (Exhibit D), he appealed to the authorities to reconsider his case. His request was not granted, hence he decided to institute the present action.
The plaintiff also tendered a receipt booklet containing duplicates of some of the receipts mentioned in the newspaper publication. One of such receipts is with No.242075 issued on 8th July, 1986 to Benjamin Ebegbare for N10. The plaintiff admitted that he issued the said receipt.
The defence did not adduce any evidence in support of their pleadings. The plaintiff was, however, extensively cross-examined. He admitted during cross-examination that apart form the visit of the SAFE to Oleh after the newspaper publication, another officer from their headquarters, Mr. Omo who, also visited Oleh after the publication and in respect of the matter. But he said he did not meet the man because the man arrived in their office after closing time. The learned trial Judge, after taking submission from learned Counsel for the plaintiff thereafter reserved her judgment, which was delivered on 11th February, 1994.
The learned Judge held, in her said judgment that the plaintiff failed to prove any leg of his claim. The entire claim was accordingly dismissed. The plaintiff was dis-satisfied with the verdict of the court and he has therefore appealed against it to this Court, five grounds of appeal were filed against the judgment. The parties filed their briefs in this court. To that end, the appellant filed an appellant’s brief and a reply brief. A brief was filed on behalf of the 1st, 2nd and 3rd respondents and another one was filed on behalf of the 4th and 5th respondents. The appellant formulated the following 4 issues in the appellant’s brief.
“1. Whether the learned trial Judge has not misconstrued the nature of the case plaintiff took to court and has consequently gone on to try a case different from plaintiff’s case?.
- Whether the query Exhibit A in the proceedings does not imply a find of guilt without a trial- the guilt of the crime of fraud: so that the approach of the learned trial Judge together with her findings (as these appear in her Judgment) is other than what is reasonable; See page 43 of the record, lines 13 through 31 to and including page 44 of the same?.
- Whether there is vires in the learned trial Judge to reply on any of the Address of plaintiff’s counsel which is outside the evidence before the court or the law relating to such evidence or other issues that arise for determination in the case?.
- Whether when a material fact is pleaded, it is necessary to plead the oral or documentary evidence which it is proposed at the trial to establish the material fact?.”
The 1st, 2nd and 3rd respondents, however, narrowed the issues to two in their brief. The two issues are:
“1. Whether his Lordship was right to have dismissed the case based on the evidence before the court?.
- Whether the appellant being a native of Araba in Delta State can hold any claim against the 1st and 2nd and 3rd defendants?.”
In the 4th and 5th respondents’ the issues was narrowed down to only one. This is:
“Whether sufficient material particulars of each claim were pleaded and proved but were ignored by the trial court resulting in miscarriage of justice.”
Although I believe that the questions raised in the appeal could be resolved under the single issue formulated in the 4th and 5th respondents’ brief. I however intend to follow the submission made in the appellant’s brief. It is submitted in the appellant’s brief on issue No.1 that the learned Judge misconstrued the plaintiff’s case as a result of which she held the view that the claim was one based on a breach of contract. It is also submitted that since it was not in dispute that the plaintiff was a civil servant until his removal through the letter dated 11th March, 1987 (Exhibit D) and that, since it was pleaded that the plaintiff was a civil servant in the cooperative Division of the Ministry of Commerce and Industries and was at the material time based at Oleh, it is then argued that in every action for unlawful termination of employment the court has the duty to determine which class of relationship out of the three classes of employee relationship, the plaintiff’s claim would fall into. The 3 classes of employee-relationship said to be recognised are (1) employee-relationship at common law; (2) employee relationship arising from contract; and (3) employee relationship arising from statute, often referred to as employment with a statutory flavour. It is submitted that the plaintiff and the defendants are creatures of the 1979 Constitution and as such they are bound by the provisions of the said Constitution which guarantee to the plaintiff that if fraud or any criminal charge is levelled against him (plaintiff) and he denies it, the only place where he could be tried and convicted for such offence must be a competent court of law. It is submitted that the provision was not complied with in the instant case. This is because, since the allegation against the appellant was that he defrauded his employer (the government) the steps taken without ensuring that he was tried and convicted in a court with competent jurisdiction should have been declared null and void. Reference is also made to the appellant’s reply to the query (Exhibit B) wherein he denied the allegations. It is then submitted that at that stage, all the respondent ought to do was to ensure that the appellant was taken before a court with competent jurisdiction for trial for the criminal allegations. This is said to be because the relationship between the appellant and the respondents was not one founded on contract but principally constitutional by virtue of section 178, 187 and 189 of the 1979 Constitution. The decision in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 relied on by the learned trial Judge was inapplicable in that it is easily very distinguishable. The position in the instant case is said to be that the step taken by the respondents in dismissing the appellant was unlawful, null and void and as such it had no effect. The decision in Olaniyan & ors v. University of Lagos & anor (1985) 2 NWLR (Pt.9) 599 is cited in support of this contention. It is finally submitted that, the fact that the plaintiff did not plead and lead evidence on when he was employed and the conditions of his employment are said to be immaterial since it was already not in issue that the appellant was a civil servant who also testified that he had been in the service since May 1973. That evidence is said to be sufficient.
It is submitted in reply on this issue in the 1st, 2nd and 3rd respondent’s brief that the learned trial Judge properly evaluated the evidence led before her and came to a right conclusion in the matter. It is further submitted that since the reason for the appellant’s dismissal was not based on commission of fraud but that he committed gross misconduct unexpected of an officer of his grade, there was no need to refer his case to the police for investigation and possible prosecution before his dismissal. It is finally submitted that the dismissal was justifiable, that the laid down procedure was followed and that the appellant was heard before the decision to dismiss him was taken.
It is submitted, in the 4th and 5th respondents’ brief in respect of this issue, that since the appellant failed to plead and lead evidence in support of the material particulars of each of his claim as required by law, he was definitely not entitled to succeed. The learned trial Judge was therefore right in dismissing the entire case. Reference is made to the further amended statement of claim and its is argued that since the appellant failed to plead the terms and conditions of his employment, he therefore failed to lay any foundation as to what special conditions applicable to his employment. The court could therefore not speculate on such issue.
The crucial point raised under this issue is whether the stand taken by the learned trial Judge by coming to the conclusion that the appellant failed to prove any leg of his claim was justifiable having regard to the pleadings and evidence led at the trial. It was not in doubt from the pleading and the evidence led at the trial, that the appellant was a civil servant employed by the defunct Bendel State Government. It is settled law in Nigeria that public servants in the established and pensionable cadre do not hold their offices at the pleasure of the Federal Government. Rather, their appointments are based upon rules and regulation, statutes or memoranda of appointment as the case may be. See Olaniyan &. ors v. University of Lagos & anor (1985)2 NWLR(pt. 9) 599; and Shitta-Bey v. P.SC (1981) 1 SC. 40.
The position of the law therefore is that the removal of a civil servant in the afore-mentioned category without recourse to or in a manner not in line with the applicable rules and regulations, statutes or memoranda of appointment, would be invalid, null and void. The effect would be that the affected officer would continue to told his office with his rights and entitlements intact. See Olaniyan & Ors. v. University of Lagos & anor, Supra; and Shitta-Bay V. F. PS. C. Supra.
In the instant case, the appellant not only failed to plead and lead evidence in support of any details about his employment he also failed to point at any statute, public service rules or regulations breached as a result of the action taken against him. It is definitely not enough for learned Counsel for the appellant to merely argue that the action taken by the respondents against the appellant was illegal, null and void without pointing at the provisions of the very statute, rules or regulation breached by the action of the respondent.
Heavy reliance has been placed on the point that the appellant ought to have been taken before a properly constituted law court for trial since the allegations made against him were those involving fraud which the appellant had denied. Although no authority was cited in the appellant’s brief in support of this contention, there is no doubt that learned counsel for the appellant was probably relying on the decision of the Supreme Court in Garba & v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; and earlier cases like Dr. Denloye V. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; and Sofekun V. Akinyemi 1980) 5-7 9(1981) 1 NCLR 135 SC 1.
It is necessary at this stage to further examine the facts tendered at the trial. The dismissal of the appellant, communicated to him in the letter (Exhibit D), was preceded by a query (Exhibit A) issued and signed by Mrs I. O. Gbinigie-Afe; for Permanent Secretary, Ministry of Commerce and Industry. The query reads as follows:
“Mr, E. Okeme,
(Co-op. Officer)
U.f.s. The Asst. Chief Registrar of Co-op. Societies,
Ministry of Commerce and Industry,
Oleh.
Query
You will recall that following the publication by the Bendel Community Concord of Friday, 26th September, 1986 to the effect that, there was large scale fraud going on in the registration of business premises at Oleh and environs, you appeared before the Secretary for Administration, Finance and Establishments in his office on 30th September, to answer charges on the allegation in the course of investigation on the matter. The result of the investigation has revealed that all that was carried in that paper is correct, i. e that you and your colleagues engaged in the registration exercise defrauded those traders and possibly others of various sums of money ranging from N15- N25 .00 in the pre of registering their business premises. It was proved in most cases that while you collected N25.00 and N45.00 you issued in return N10.00 and N25.00 receipts respectively, with a promise that the balance amount would be reflected later in the registration certificates, which unfortunately was never done. As you will very well re-member, one of them Mr. Benjamin Egbegbare of 43B Oleh-Irri Road, whom you admitted you personally collected money from and issued receipt, had complained to your boss through the Revenue Task Force Chairman much earlier before the publication, that he paid N25. but in return got a N10.00 receipt vide receipt No.1242074 of 8/7/86.
- The investigation carried out also showed that you and your colleagues for reasons best known to you, either left many stores unregistered or even when you registered them, under-assessed them, thereby making Government to lose substantial revenue.
Cases of specific mention are Madam Atase’s Eating House conspicuously located at Emore Road by Atase Super Market, Oleh, which you and your colleagues did not assess and register, and Vincent Osibe and Sons Building Stores at 142A Emore Road, Oleh (two large twin stores which you and your colleagues under assessed and collected N12.50 for renewal fees vide receipt No.1242007 of 19/6/86, as against N25.00 you would have collected for each of the stores in accordance with the provisions of the edict.
- As the officer who usually led the registration team, it would appear that you equally led them in the malpractices, which have caused Government considerable loss of revenue, disrepute and embarrassment.
- In the light of the foregoing, this Ministry have been directed to request you to explain why severe disciplinary action should not be taken against you for these acts of gross misconduct, unexpected of an officer of your grade.
- Your explanation should reach me within 48 hours of the receipt of this letter.
Signed
(J. O. Gbinigie-Afe) Mrs
For: Permanent Secretary
Ministry of Commerce and Industry.”
As I have already set out earlier above, the events that eventually culminated in the plaintiff’s dismissal started with publication in the Community Concord edition of Friday September 26, 1986. The relevant portion of the publication has already been quoted above. Following the publication, the Ministry’s SAFE went to Oleh on fact finding mission about the serious allegations levelled against the official of his Ministry in the newspaper publication. While at Oleh, the man made random checks on some shop owners involved in the registration exercise and interviewed some of the workers of his Ministry at Oleh. The appellant was one of the workers interviewed. The appellant and some of his colleagues involved in the exercise were then invited to report at the headquarters in Benin. This request was complied with
The appellant was one of the officers that reported and was again interviewed at the Ministry’s Benin headquarters by SAFE. The appellant also told the Court that one of the receipts (No. 242075) issued and which was one of those mentioned in the newspaper publication, was in fact issued by him. There is no doubt that the inquiry conducted by the SAFE is an administrative one. An important point that needs to be considered, therefore, is that in the realm of administrative law, it is settled that two cardinal principles – namely, that no person shall be condemned unheard and that none shall be a judge in his own case are implicit in the concept of fair adjudication by any authority. Those two conditions must be met in every administrative inquiry before its outcome could be allowed to stand: See Dr. Falomo v. Lagos State Public Service Commission (1977) 5 SC 51, and Athanasius Kalada Hart v. Military Governor of Rivers State & Ors, (1976) 11 SC 211 at 238.
The learned trial Judge took this important legal point into consideration in her judgment when she said, inter alia, in the cause of her said judgment.
“In the present case, the plaintiff admitted that the Chairman of the Task Force had drawn his attention to the complaints being made; that he had seen the publication in the Community Concord on the same topic; that when he went to the SAFE’s office he (SAFE), drew his attention to the publication and asked him about it and how he (plaintiff) went about the process of registering business premises in Oleh. The plaintiff cannot say, therefore, that he did not know what allegations were being made against him and the other members of the team, or that he was not given the opportunity to put his own side of the matter. Furthermore, before the decisions was reached concerning the future of the plaintiff, the findings of the investigation were made known to him in the query Exhibit A and he was given a further opportunity to explain these findings and the allegation arising from them. It was after he had replied to the query, Exhibit B that the decision was taken to dismiss him from the service. The plaintiff was not deprived of a fair hearing and was given ample opportunity of putting his own view forward.”
The appellant was defnitely heard during the administrative inquiry conducted by the SAFE. The next question to be resolved, therefore, is whether the action taken against the appellant and communicated to him in the letter of dismissal (Exh. D could be allowed to stand having regard to the fact that some of the allegations made against the appellant in the query (Exh. A) are criminal in nature? – e.g. the following portion from the query:
“… that you and your colleagues engaged in the registration exercise defrauded those trader and possibly others various sums of money ranging from N15 – N25 in the pre of registering their business premises. It was proved in most cases that while you collected N25 and N45, you issued in return N10 and N25 receipts respectively, with a promise that the balance amount would be reflected later in the registration certificates which unfortunately was never done.
But apart from the above passage from the query, yet another allegation was also levelled against the appellant in paragraph 2 of the query. This is to the effect that;
“The investigation carried out also showed that you and your colleagues, for reasons best known to you, either left many stores unregistered or even when you register them, underassessed them thereby making Government to lose substantial revenue ….”
However, the appellant was called upon in the concluding paragraph of the query (Exh. D) that-
“in the light of the foregoing, this Ministry has been directed to request you to explain why severe disciplinary action should not be taken against you for these acts of gross-misconduct, unexpected of an officer of your grade.” (italics supplied for emphasis)
The allegations levelled against the appellant may be classified into two categories: issuing receipts for less than money collected from members’ of the public, thereby defrauding the Government of the difference not accounted for; and failure or omission to register some shops. The earlier definitely criminal in nature while the other may be classified as coming under negligence of duties or due to incompetent attitude of the applicant and his other colleagues to their duties.
One of the important points decided by the Supreme Court in Garba & ors v. University of Maiduguri, supra, was that by virtue of section 33 (1) (4) and (13) of the 1979 Constitution only a court of law or a judicial tribunal is competent to hear and determine a criminal charge against every individual. In other words, an administrative tribunal is incapable of entertaining criminal trials. The question then is whether what took place during the investigations conducted by the SAFE was in fact a trial of the appellant for the offence of fraud. I have no doubt in holding that the answer to that question is in the negative. This is because the concern of the top officials of the Ministry after reading the write up in the issue of the Community Concord was to fmd out exactly what happened and after finding out what happened, to take any necessary administrative action, if need be, against any of the officials found wanting. I also believe that whatever actions they took to this end could not be regarded as a bar to any possible prosecution for any criminal offence that might have been committed by any of the officials.
The learned trial Judge rightly made a correct finding of fact on this point in her judgment where she said:
“With regard to the nature of the allegations made against the plaintiff, it was the publication in the Community Concord that called it fraud. The Department to which the plaintiff was attached did not refer to it as such and called it gross-misconduct, unexpected of an officer of the plaintiff’s grade. As there has been no finding of crime made by the Department specifically then there was no need for them to refer the matter to the police for further investigation.”
The decision in Garba & Ors V. University of Maiduguri case, supra was based among others, on the contention that the Disciplinary Investigating Board set up by the University authority to identify the principal organisers and perpetrators of the students’ rampage which resulted in arson, destruction of property, looting and indecent assault and to apportion blame and recommend disciplinary measures, could not be fair in that the Vice-Chancellor, who headed the Board was a victim of the riot because his house was one of the houses burnt down during the riot. For this and other reasons relating to procedural defects adopted by the board and set out in the judgment, the expulsion orders imposed on the students (appellants) were set aside because the order were based on the recommendation of the said Board. The appellants were therefore said not to have been given fair hearing in that the rules of natural justice were breached by the Board.
The reasoning behind the Supreme Court’s decision in the Garba & ors v. University of Maiduguri case, supra, and the nature and scope of what type of criminal acts that must be referred to Court for trial are well set out in the following passage from the judgment of Uwais JSC (as he then was) at pages 608-609 of the report:
“Finally, I think it is important that the point should be made that by the decision in this case we are not condoning the gross misconduct committed by the students of the University of Maiduguri; nor are we curtailing the powers of the Vice-Chancellor to deal effectively with any misbehaviour by students.
Rather, we are stressing that in dealing with misconduct by students, the proper procedure ought to be followed with due regard to the provisions of the Constitution. If students commit serious criminal offences within University campuses, as in the present case, Vice-Chancellors or the Disciplinary Boards should not feel restrained or reluctant to report the improper conduct to law enforcement agencies. Crimes committed, even within the walls of the campuses, are crimes against public at large. No citizen is above the law and students should be made to understand that. It has since been the view of this Court that where a person is accused of committing a criminal offence, he must be taken before a court of law for trial and not merely by dealt with by a tribunal – see Dr. E. O. Denloye V. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All A.L.R. 306 at p.311 and Dr O. G. Sofekun’s case (supra) at p.17. However, this does not mean that every trivial or minor offence committed by students should become the subject of prosecution in a court of law. It is the responsibility of the Vice-Chancellor, in the exercise of his powers under section 17, to distinguish between serious and minor acts of misconduct which have given rise to serious or minor criminal offence.”
It is clear from the above passage of the judgment in the Garba s case that:
(1) it is not mandatory that disciplinary action could not be taken against an offender whenever any aspect of his act involved commission of any crime; and
(2) that not all matters involving commission of crime need be handed over to the law enforcement officers for criminal prosecution in a court of law. Thus, in the instant case, the two allegations levelled against the appellant are that of fraud; that is, issuing receipts for less than the amount collected on behalf of his employer, the Government of defunct Bendel State; and omitting to assess some shop owners and/or under assessing them. These are definitely not very serious criminal acts like arson, destruction or property and looting involved in the Garba & ors V. University of Maiduguri case. The appellant’s employers therefore had a discretion either to deal with the matter internally and/or hand the appellant over to the law enforcement officers for prosecution.
The fact that the employers chose to deal with the matter internally therefore could not exfacie render the action taken by them illegal, null and void. Such a result could only arise if there is proof that in the course of dealing with the appellant, they fall foul of any law or they were in breach of any of the rules of natural justice. As none of these had been proved against any of the actions taken by the respondents, there would be no cause to tamper with the respondents’ decisions in the matter.
The other questions left to be resolved are whether any of the actions taken by the respondents in the matter was ultra vires. In answering that question, the onus was on the appellant to plead and lead evidence in support of any breach of any statutory provision, regulations or rules. The appellant had totally failed to do this. As already set out earlier above, the query (Exh. A) was issued and served on the appellant after the visit of the SAFE to Oleh and followed by the appellant’s visit to Benin where he met the SAFE on the same issue.
Similarly, the letter of dismissal (Exh. D) emanated from the Permanent Secretary, Ministry of Commerce and Industry, Establishment Branch, Benin City. It is also clear from the contents of the letter that “the Civil Service Commission has approved” the said dismissal of the appellant. The onus therefore is on the appellant to plead and lead credible evidence in support of breach of any law, rule or regulation that could render the letter null and void. Since the appellant failed to do this, there is no doubt that the court was entitled to presume that everything done in the matter was done in accordance with the applicable laws and conditions governing the appellant’s service. It is necessary at this juncture to say that I entirely agree with the learned trial Judge that the appellant totally failed to prove any leg of his claim. I am also in complete agreement with the learned Judge’s reason for refusing the claim for special damages: being the emoluments due to the plaintiff from date of dismissal until retirement, taking account of standard increments and allowances. The learned Judge rightly made the following finding of facts in her judgment (at pages 42 to 43 of the record):
“At no time did the plaintiff lead evidence concerning his appointment, his conditions of service, the position that he held or the salary Grade Level that went with post. He said nothing of any fringe benefits to which he was entitled or the actual salary that he was earning at the time his appointment was terminated …. No letter of appointment was tendered nor its absence explained…”
The learned Judge thereafter gave the following reasons for rejecting the claim for payment of salary due to him up to his retirement age of 60 years at page 48 of the record.
“Also in such case, a man cannot sit down and do nothing and expect unearned wealth to drop into his lap. Even if the retiring age for the plaintiff were 60 years, there is no certainty that he would work with the defendant for that entire period or that he would even live that long to do so. An employer does not guarantee a job until retirement when he employs an individual. The time of retirement only set out the maximum duration possible for the employment to last under existing contract. It is not a guarantee. In the event as the first arm of the claim did not succeed, this one also cannot succeed.”
I entirely agree with the above views expressed by the learned trial Judge.
All the issues raised in the appeal having been resolved against the appellant, I hold that there is totally no merit in the appeal. I accordingly dismiss it. The judgment of the lower court in the matter is therefore affirmed. The respondents are awarded cost which I assess as follows: N2,500 to the 1st, 2nd and 3rd respondents; and N2,500 to the 4th & 5th respondents.
Other Citations: (2000)LCN/0830(CA)
