Mr. Richard Omidiora & Anor V. Federal Civil Service Commission & Ors (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against part of the judgment of Hon. Justice Chukwura Nnamani of the Federal High Court delivered on 1/12/2005.
Therein a single judgment was given in respect of the consolidated cases of FHC/IL/CS/l0/2001, FHC/IL/CS/11/2001 and FHC/IL/CS/12/2001. The facts that led to this appeal are as follows:-
The Appellants had filed separate actions before the trial Federal High Court. Prior to the commencement of hearing the suits were consolidated as the cause of action, issues for determination and the Defendants were the same. Both Appellants were employed by the Federal Civil Service and were engaged as lecturers of different cadres in the Federal Training Centre Ilorin. They were dismissed on 6/5/99 from service after receipt and reply to a query based on an anonymous petition. They appealed through domestic channels of redress without a favourable outcome and filed an action at the lower court. The claim of the Appellants as adumbrated in the writ of summons is as stated below:
“The Plaintiff was a Senior Lecturer/Senior Education Officer with the Federal Training Centre, Ilorin, until 30th April, 1999 when purporting to act on the strength of an anonymous petition and without just cause the Defendant acting in concert dismissed the Plaintiff from service vide a letter dated 16th April, 1999 signed by an unauthorized officer. On assumption of office on the 29th May, 1999 the present Federal Government set up a panel to review the Plaintiff’s case among others but in a report of the panel published on 14/12/2000, Ref No. TSR.02/197/T/241 signed by one Dr. C.J.G. Orjioke, Permanent Secretary, and Public Service Office of the Plaintiff’s purported dismissal was affirmed as he was not one of those re-absorbed.
WHEREOF the Plaintiff claims against the Defendants jointly and severally as follows:
- A Declaration that his letter of dismissal dated 16th April, 1999 is null, void and of no effect as it is founded on an anonymous petition.
- A Declaration that the purported letter of dismissal dated 16th April 1999 is incompetent, null and void as it is signed by an unauthorized officer.
- An Order for the immediate re-instatement of the Plaintiff to the service of the 1st Defendant as a Senior Lecturer with the Federal Training Centre, Ilorin.
- An Order for the payment of all salaries and allowances due to the Plaintiff from May, 1999 until he is reinstated
- An Order for the restoration of all rights inclusive of all promotions due to the Plaintiff DATED this 15th day of January, 2001. ” (Page 2 of the Record of Proceedings)
Pleadings were filed and issues joined. After the trial court dismissed the preliminary objection of the Respondents to the jurisdiction of the court, the case went to trial. By the trial stage, the Respondents’ counsel had abandoned the defence and the court proceeded to trial pursuant to Order 15 r. 15 of the Federal High Court Civil Procedure Rules 2000. In a considered judgment the learned trial judge held that the action of the Respondents was a nullity, because the petition, the basis of the disciplinary action against the Respondents was anonymous, the letter of dismissal was not signed by the appropriate authority and finally that the procedure adopted in dismissing the Appellants breached the legal doctrine of fair hearing. The lower court decided that the Appellants’ dismissal is a nullity.
His Lordship however decided not to grant the claim for reinstatement and payment of the Appellants’ salaries and allowances during the period that he found that their appointment had been unlawfully terminated. It is against that aspect of the judgment of the lower court that an appeal has been lodged before this court.
The Appellants grounds of appeal with their particulars are set out below for clarity:
“1. The court erred in law when it held, ‘I have thoroughly perused the Plaintiffs’ Statement of Claim and no where did the Plaintiffs plead special circumstances to warrant reinstatement. The Court on its own had looked at the facts of this case to see if special circumstances can be deduced I am afraid I was unable to see any”
PARTICULARS OF ERROR IN LAW:
(i) The learned trial court agreed that the Appellants’ employment is one with statutory flavour and governed by the Civil Service Rules.
(ii) The learned trial court found that the dismissal of the Appellants is null and void and of no effect being in brazen breach of the Civil Service Rules, manual of employment, discipline and promotion in the Civil Service and all tenets of fair hearing.
(iii) It is now moot that a finding that a dismissal from an employment with statutory flavour is null and void is a finding for special circumstance and the only relief proceeding from such a finding is immediate reinstatement.
(iv) The maxim Ex nihilo nihil fit applies to say that when a dismissal is a nullity, the dismissal stands on no legal ground, it is void ab initio and a reinstatement is its natural consequence in the circumstance.
(v) The trial court has found for special circumstance with his order nullifying the dismissal and declaring the letter of 16/4/99 on which it is founded a nullity.
- The trial court erred in law when it held, “Rather, supervening events seem to weigh more on the scale. For instance, the Plaintiffs were purportedly dismissed from office on 6th April, 1999 (about 7years). There is no doubt in my mind that a lot of water must have passed under the bridge in 7years. By this, I mean supervening events such as restructuring, downsizing, monetization, privatization, computerization may have occurred in the Plaintiffs’ place of work within 7years which this court is expected by law to take judicial notice of”.
PARTICULARS OF ERROR IN LAW:
(i) There is no pleading whatever and afortiori no evidence before the trial court averring any supervening event which makes the reinstatement of the Appellants impossible.
(ii) Such supervening events as enumerated by his lordship, the trial Judge, are within the peculiar knowledge of the Respondents, if they exist at all, they are neither notorious facts nor facts of which the trial court can take judicial notice.
(iii) The trial court has not confined itself within pleadings and evidence led at the trial, none of which justify the findings on supervening events as done by the trial court.
(iv) The delay in the conclusion of trial is absolutely without the Appellants’ fault.
(v) The litany of alleged supervening events reeled out by the court are all speculation, and the trial court lacks the jurisdiction to speculate.
(vi) The speculation is not justified by the pleadings and evidence before the trial court. “(Pages 167- 168 of the Record of Proceedings)
After service of all process on the Respondents and time for them to respond had lapsed, they, being apparently unable or unwilling to appear to defend the appeal, the Appellants filed a motion on notice to set the case down for hearing. The motion was granted by this court on 15/3/2007. On 15/5/2007 when the appeal was heard, this court’s record shows that the Respondents were duly served on 17th and 18th days of April 2007. That is to say the 1st, 3rd and 4th Respondents were served on the 17th April 2007 while the 2nd Respondent was served on 18/4/2007. In the circumstances, since they appear unwilling to defend the appeal, this court proceeded to hear the appeal in their absence. Thus this appeal has been considered solely on the Appellants’ brief. The Appellants’ counsel identified two issues for determination. They are stated below:
“i. Whether the trial Federal High Court was correct in its decision refusing the two incidental prayers of immediate reinstatement of the Appellants into the Federal Civil Service, and payment of all outstanding salaries and allowances on the ground that they did not establish any special circumstance after declaring their respective letters of dismissal null and void.
i. Whether it is permissible in law for a trial court to refuse incidental reliefs after granting the principal one based solely on speculations and conjectures totally outside the confines of pleadings and evidence led before the court. ”
The first issue is whether the learned trial judge was correct in refusing the two consequential prayers of immediate reinstatement of the Appellants into the Federal Civil Service and payment of all outstanding salaries and allowances.
Learned Appellants’ counsel argued that the judgment of the trial court was to the effect that the Appellants’ dismissal from the employment of the Federal Civil Service was null and void. He also argued that since the learned trial judge had found that the Appellants’ employment was one with statutory flavour, they should have been reinstated to their position. He cited the following cases: FCDA v. JOSHUA GYUHU SULE (1994) 3 SCNJ 71; FEDERAL POLY MUBI v. T.L.M. YUSUF (1998) 1 SCNJ Pg. 11 at 17. He submitted that the fact that the Appellants’ dismissal was declared null and void constitutes special circumstances to warrant their reinstatement and payment of their outstanding salaries and allowances.
The learned trial judge reasoned thus:
“The court will now consider whether reinstatement is the appropriate order to make or Damages. The cases of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 at 56, that locus classicus on the cases of this nature along with other cases and legislations, such as Imoloame v. WAEC (1992) Pt. 265 Pg.303 at 318; NITEL v. Ikaro (1994) Pt. 320 Pg.350 at 364;Chukwumah v. Shell Petroleum (1993) 4 NWLR Pt. 289 Pg.512 at 560; Samuel Igbe v. Governor of Bendel State (1983)1 SCNLR 73; (1983) 2 SC 114; were all closely looked at. Also the recent case of the Supreme Court in Isievwore v. NEPA (2002) 13 NWLR Pt.784 Pg.417 at 413-437 is also very instructive.
The principles emanating from these cases regarding specific performance, reinstatement or Damages are to the effect that special circumstances will be required before a declaration is made to the effect that a contract of service still subsists and its making will normally be at the discretion of the court. Such special circumstances will arise when the contract of employment has a legal or statutory flavour, thus putting it over and above an ordinary master and servant relationship.
The court however will refuse to order reinstatement of an employee whose employment has statutory flavour and who has been removed in gross violation of the relevant provisions of the statute where supervening events have made it impossible for the employee to return to his post.
The court will however order payment of Damages. See Isievwore v. NEPA (supra) and the Damages would be what was due to him for the period of notice. See Adewunmi v. Nig. Produce Market Board (1972) 1 All NLR 433.
The pertinent question that arises in the instant case is whether there are Special Circumstances to warrant the reinstatement of the Plaintiffs or whether there are supervening events to reject reinstatement. “(Underlining mine) (Pages 163 – 164of the Record of Proceedings)
With the greatest respect to the learned trial judge, there seems to me to be a juxtaposition of the authorities relied upon by him. The medley of authorities cited by the learned trial judge included cases decided in consideration of employment with statutory flavour and others decided merely on master servant relationship at common law. To my mind, the long line of cases from SHITTA-BEY v. F.P.S.C. (1981) 1 SC 40 at 56; TEACHING HOSPITAL v. NNOLI (1994) 10 SCNJ 71 at 85-87, (1992) 6 NWLR Pt.250 Pg.752; OLANIYAN v. UNILAG (1985) 2 NWLR Pt.9 Pg. 599; EPEROKUN v. UNILAG (1986) 4 NWLR Pt. 34 Pg. 162; IDERIMA v. RIVERS STATE C.S.C (2005) 7 SCNJ 493 at 504, (2005) 16 NWLR Pt.951 Pg. 378 to GOV. KWARASTATE v. OJIBARA (2006) 18 NWLR Pt.l012 Pg.645 at Pg. 661-662 are to the effect that in this type of circumstances of the case at hand where there has been found an improper removal of an officer from an office specifically protected by law, the consequence of that finding is that in the eyes of the law, the Appellants had not been removed from office. Thus they are entitled to be placed de facto in the same position they are deemed to be de jure.
All the above authorities hold that once dismissal or retirement was declared null and void there is nothing legally standing in the way of the Plaintiffs from having their jobs back with its attendant rights, benefits and privileges. Thus a successful litigant on the issue of unlawful dismissal where it is an employment of statutory flavour is entitled to be restored to his/her status quo ante bellum. I mentioned earlier that confusion might have arisen in the mind of the learned trial judge because of the conflicting ratio in the various authorities he considered. If he had read the facts of these cases the confusion might have been avoided. A judicial precedent is authority for the legal principles it decides based on the facts placed before the court. In Isievwore v. NEPA cited supra by the learned trial judge, the facts are quite different from the facts in this case. The Supreme Court in that case considered a contract of service, not a contract with statutory flavour and refused to order reinstatement where it found the termination “wrongful” rather than “unlawful”. In law, the courts will not enforce specific performance of the mere contract of service or employment under common law. There is a wide difference between unlawful termination of appointment with statutory flavour and wrongful termination of appointment of contract of service or master servant relationship under common law. Learned trial judge was also probably confused by the decision in Igbe v. Gov. Bendel State also cited by him supra. In that case the Supreme Court held that an employee’s appointment had been unlawfully terminated in gross violation of the constitution. However, he was held to be only entitled to damages for breach of the contract of service including salaries and allowances for the unexpired term of his service. He could not be reinstated because of supervening events which made it impossible for him to return to his post. He was appointed as a Commissioner under the statutory commissions set up and deemed recognized by the 1979 Constitution with a term of five years. However, the Respondents n that case had appointed other persons as Public Service Commissioners. Thus his position had been filled hence the refusal of the Supreme Court to order reinstatement.
It is my humble view that the right to be reinstated is a right that follows consequent on a declaration that the termination was unlawful, null and void. It is to me quite a novel introduction to this aspect of the decision law, the view of the learned trial judge that the Plaintiff must establish special circumstances in order to be entitled to the consequential relief of reinstatement. With respect, I do not think that is the position of the law.
In Isievwore v. NEPA, the learned justices of the Supreme Court made the point that it is only in special circumstances that specific performance will be granted in cases of contracts of service. It is in such a situation of contract of personal service that the employee may prove special circumstances in aid of specific performance or reinstatement. This is quite different from the circumstances of this case where it was found that the contract of employment is guided by statute. There was no need for the Appellants to prove any special circumstances to entitle them to the consequential relief of reinstatement and payment of their salaries during the period they were deemed to have been employed in the Federal Civil Service. It is not part of the burden of proof required to be discharged by a Plaintiff who was an employee in statutory employment. The court should not unilaterally add what is not legally required to the evidential burden of a litigant. Issue one is resolved in favour of the Appellants.
Issue two is really an offshoot of issue one. The question raised in issue two is whether the learned trial judge’s reasons for refusing the consequential reliefs were proved or not. The argument of learned Appellants’ counsel is that the learned trial judge was wrong to refuse the incidental relief after granting the principal one based solely on speculations and conjectures outside the confines of pleading and evidence. Learned Appellants’ counsel argued that the case was fought on pleadings. There was no where in the statement of defence filed by the Defendants where they claimed inability for any reason to further engage the Appellants. He submitted that the learned trial judge suo motu thought up intervening events which the Defendants did not plead or prove and proceeded to take judicial notice of them. He submitted that the learned trial judge was wrong to make conjectures and speculations the basis of his judgment. He cited ODUBEKO v. FOWLER (1993) 9 SCNJ 185 at 196; MODUPE v. THE STATE (1988) 4 NWLR Pt. 87 Pt. 130; OKOROGBA v. THE STATE (1992) 2 NWLR Pt. 222 Pg. 244. He also submitted that apart from the general traverse, the Respondents did not join issues in the pleadings as to why it will be impossible to reinstate and pay the Appellants outstanding salaries etc if the court so ordered.
On this issue the learned trial judge opined as follows:
“I have thoroughly perused the Plaintiffs’ Statement of Claim and nowhere did the Plaintiffs plead special circumstances to warrant reinstatement. The court on its own had looked at the facts of this case to see if Special Circumstances can be deduced I am afraid I was unable to see any. Rather, supervening events seem to weigh more on the scale. For instance, the Plaintiffs were purportedly dismissed from office on 16th April 1999 (about 7 years). There is no doubt in my mind that a lot of water must have passed under the bridge in 7years. By this, I mean supervening events such as restructuring, downsizing, monetization, privatization, and computerization may have occurred in the Plaintiffs’ place of work within 7years which this court is expected by law to take judicial notice of The Plaintiffs, no doubt are entitled to damages which is the length of required notice the Plaintiffs are entitled to before being disengaged The Plaintiffs are officers of Federal Civil Service designated Principal Instructors at the Federal Training Centre, Ilorin. Ordinarily, the Plaintiffs ought to be given 3 months Notice prior to their disengagement but as this was not given, the Plaintiffs are entitled to three months salary in lieu of Notice.
Accordingly, I award three months salary in lieu of Notice to the Plaintiffs. I also grant reliefs (1) and (2) of the Plaintiffs’ Statement of Claim dated 15th January 2001. ”
(Pages 164 – 165of the Record of Proceedings)
I have carefully looked at the pleadings of the parties particularly the pleadings of the Respondents who were Defendants at the lower court. I cannot see from where the learned trial judge conjured the issue of the “supervening events” which persuaded him to refuse to grant the reliefs of the Appellants to reinstatement and payment of their accrued wages and allowances. The learned trial judge set out a litany of reasons why the Respondents would not be able to reabsorb the Appellants. These include restructuring, downsizing, monetization, privatization, computerization, etc in short any reason his lordship’s imagination could come up with. Certainly none of these reasons were set out in the Respondents’ pleadings. In any case, even if they were, pleading is not evidence. They never came to court to prove any of these reasons. His lordship talked about taking “judicial notice” of these “supervening events”. However, S.74 of the Evidence Act are not at large. It stipulates specific facts which the court must take judicial notice of. The issue of judicial notice is both a matter of fact and a matter of law. Parties must call upon the court to take judicial notice of notorious facts outside the list categorized under S.74. These facts taken “judicial notice” of by the learned trial judge are events that may or may not have taken place in the Federal Civil Service which would be within the personal knowledge of the Respondents for them to plead and prove in court. They must also prove why those events would prevent them from reabsorbing the Appellants.
To my mind, by saying that “a lot of water must have passed under the bridge” after seven years, thus causing the supervening events, the learned trial judge seemed to be punishing the Appellants for the long duration of the trial which fact from the records do not appear to be their fault at all.
To my mind, it is erroneous for judges to seek to unilaterally abridge or erode the rights of parties especially where such rights have not been disputed as in this case. The Appellants being Federal Civil Servants have their rights to employment protected by the Constitution and the Federal Civil Service Rules. Non compliance with those rules or the law in this case the Decree under which they were purportedly dismissed by the employer leads to a nullification of the dismissal action which entitles the Appellants to full restoration of their employment status. I agree with learned counsel for the Appellants that judges are not allowed to speculate moreso when such speculation was used to arrive at a decision. See OYINLOYE v. ESINKIN (1999) 6 SCNJ 278. It is trite that judgments should not be based on unpleaded and unproved facts. In ODUBEKO v. FOWLER the Supreme Court held –
“The court is precluded from speculating or making a case for either party to the proceedings by suo motu formulating the weakness in the case, if any, and resolving same in favour of one of the parties. On the pleadings and evidence the parties brought to Court the learned trial judge had no business trying to pick holes. ”
In sum, I am of the firm view that no supervening events were pleaded and proved by the Respondents at the trial court to warrant the court’s refusal of the grant of the reliefs 3, 4 and 5 of the Appellants’ claim. With respect, the reasons for making an order for payment of three months salary in lieu of notice are totally misconceived by the learned trial judge.
Contrary to the conclusion of the learned trial judge, the Appellants were not “disengaged” from the service of the Federal Government. His lordship had earlier made a finding that they were “unlawfully dismissed”. Disengagement connotes lying off, withdrawal, retrenchment or other like exercise as opposed to dismissal. If the issue of special and/or general damages arose at all, they must be proved by the Plaintiffs. The precedent had always been that where unlawful termination is proved and reinstatement is impossible, where claimed and proved, the Plaintiff would be entitled to the salaries and allowances of the unexpired term of employment. Words with different meanings and legal implications should not be used interchangeably. It causes confusion which led to the error of the trial judge. The consequence of the finding of unlawful dismissal is that the reliefs of reinstatement and payment of arrears of salary and allowances should have been granted. In the circumstances, the 2nd issue is resolved in favour of the Appellants.
This appeal succeeds in its entirety.
- It is hereby ordered that the Appellants be immediately reinstated to the service of the 1st Respondent in their former positions with the Federal Training Centre, Ilorin.
- It is hereby ordered that the salaries and allowances of the Appellants shall be paid to them by the 1st Respondent from May 1999 until they are reinstated.
- It is also hereby ordered that all rights due to the Appellants including promotion etc are to be restored forthwith.
Appeal Allowed. No order as to costs.
Other Citations: (2007)LCN/2458(CA)
