Patrick Ziideeh V. Rivers State Civil Service Commission (2007)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C
This appeal is against the judgment of the Port Harcourt Division of the Court of Appeal delivered on 7/12/2000, dismissing the appellant’s appeal against the judgment of the Ahoada trial High Court of Justice, Rivers State of 29/11/1990 dismissing the appellant’s action against the respondent.
The appellant was a civil servant under the employment of the respondent in the Ministry of Commerce and Industry, Port Harcourt as a Store Assistant. In 1977, it was discovered in the store where the appellant was serving that 120 bales of stockfish worth N20,000.00 were missing. The appellant who was interdicted and placed on half salary, was charged to a Magistrate Court for the theft of the bales of stockfish. After the trial, the appellant was discharged and acquitted on 1-11-1978.
However, in 1984, a Board of Inquiry was instituted to investigate the loss of the 120 bales of stockfish from the appellant’s store. The appellant was invited to give evidence and testified before the Board of Inquiry which in its report, though found the appellant grossly negligent in causing the loss of the 120 bales of stockfish to his employers, recommended his reinstatement to his post in the civil service. The respondent however refused to act on this recommendation and proceeded to terminate the appointment of the appellant by a letter dated 1-6-1984. The appellant who was not happy with this step taken by the respondent inspite of the recommendation of the Board of Inquiry, filed his action at the trial High Court and claimed the following reliefs against the respondent as the defendant –
“(1) A declaration that the termination of the plaintiff by the defendant is null and void and of no effect whatsoever.
(2) A declaration that the plaintiff is still a member of Rivers State Civil Service holding the post of Store Assistant thereof and is therefore entitled to be paid all his salaries and entitlements with effect from January 1978 by virtue of the said employment.
(3) Plaintiff’s entitlements from January, 1978 to December 31st, 1985 is N11,560.29k.”
At the hearing of the case on pleadings, the appellant as plaintiff testified in support of his claims and in the course of his evidence tendered the letter of termination of his appointment and the report of the Board of Inquiry which were received in evidence as exhibits ‘A’ and ‘B’ respectively. Only one witness testified for the defendant. In the judgment dated 29-11-1990 but delivered on 4-12-1990, the appellant’s action was dismissed by the learned trial Judge. The appellant’s subsequent appeal against this judgment to the Court of Appeal was also dismissed on 7-12-2000. Still dissatisfied with the outcome of his appeal, the appellant has now further appealed to this court.
The appellant in his brief of argument raised three issues for the determination of the appeal from the three grounds of appeal filed by him. The issues read –
“1. Whether the appellant was given a fair hearing as far as the several offences referred to in exhibit A (the letter of termination) are concerned.
- Whether the Coutrt of Appeal was right in holding that the appellant never pleaded the Civil Service Rules.
- Whether the Court of Appeal was right in holding that the appellant did not plead that his appointment was one with statutory flavour.”
In the respondent’s brief however, the following two issues were identified.
“1) Whether the plaintiff/appellant was given fair hearing before his employment was terminated.
2) Was the Court of Appeal right in striking out issues 2 and 3 before it on the ground that the facts referred to therein were not pleaded and were being raised for the first time.”
In addition to the issues raised in the respondent’s brief, the respondent also raised a preliminary objection to ground 2 and issue 2, arising from it in the appellant’s brief as not having arisen from the decision of the court below because neither that court nor the trial court pronounced a decision on whether or not the Civil Service Rules were applicable to the case. Thus, being a fresh issue, leave was required to raise it in the appeal before this court in line with the decisions in Rockonoh Property Co. Ltd. v. NITEL Plc (2001) 14 NWLR (Pt. 733) 468 and Incar (Nig.) Plc v. Bolex Ent. (Nig.) (2001) 12 NWLR (Pt. 728) 646.
The appellant however maintained that the issue relating to the application of the Civil Service Rules in this case was pleaded in paragraph 8 of the statement of claim while the respondent also responded in paragraph 5(b) of the statement of defence before the parties gave evidence in support thereof.
Looking at the pleadings of the parties at pages 4, 5, 27 and 28 of the record, particularly paragraph 8 of the statement of claim and paragraph 5 of the amended statement of defence, issue relating to the application of the Civil Service Rules was indeed pleaded.
Paragraph 8 of the statement of claim reads –
“8. Surprisingly, rather than act on the report, the defendant by their letter of 1st June, 1984, purported to terminate the appointment of the plaintiff. The letter bore reference No. CPSC/240/S.5/53.
(b) Several offences referred to in the said letter of 1st June, 1984 were never made known to the plaintiff.
(c) Plaintiff was never given the opportunity to defend, answer, admit or deny the alleged offences; in short, plaintiff was not given a fair hearing.
(d) Plaintiff was never told he was to be dismissed or terminated in accordance with the Civil Service Rules”
In reaction to the above paragraph, the respondent as defendant averred in paragraph 5 of the amended statement of defence the following facts –
“5. The defendant does not admit paragraphs 8 and 9 of the plaintiff’s statement of claim and will at the trial contend as follows:
(a) That the defendant acted on the report of the Board of Inquiry which found a case of negligence resulting in loss of government funds against the plaintiff.
(b) That the defendant was not obliged to accept the recommendation of the Board of Inquiry that
the plaintiff should be re-instated, since under Rule 04201 of the Civil Service Rules, negligence leading to loss of government funds is a very serious offence.
(c) The plaintiff was given a fair hearing in that he appeared and gave evidence before the Board of Inquiry whose main purpose was to find out how the loss of the 120 bales of stockfish occurred.
(d) That under the 1979 Constitution of the Federal Republic of Nigeria, it is only the defendant that has the legal competence to terminate the plaintiff’s appointment.”
There is no doubt whatsoever from these paragraphs of pleadings, that issues were joined between the parties on whether the appointment of the appellant was terminated in compliance with the specific Civil Service Rules and whether the appellant was given a fair hearing in the exercise. These same issues were raised by the parties at the court below and subsequently in this court. The issue of whether the Civil Service Rules were complied with in the termination of the appellant’s appointment by the respondent not being a new or fresh issue between the parties, was rightly raised by the appellant in this appeal. This takes care of the appellant’s preliminary objection.
Going to the appeal, the first issue is whether the appellant was given a fair hearing as far as the several offences referred to in exhibit A (the letter of termination) are concerned. Learned counsel to the appellant citing and relying on section 33(1) of the 1979 Constitution had submitted that the appellant not having been given the opportunity to defend himself on the various allegations of offences referred to in exhibit A, the letter terminating his appointment was served on him in breach of his right of fair hearing. Learned counsel explained that the appellant had no quarrel with the report of the Board of Inquiry exhibit ‘B’ on which both the trial court and the court below relied in dismissing his case. Citing a number of cases including F.C.D.A. P. v. Naibi (1990) 3 NWLR (Pt. 138) 270 and International Drilling Coy. Nigeria Ltd. P. Moses Eyeimofe Ajijala (1976) 2 SC 115 at 118-119, learned counsel concluded that the appellant’s appointment having been terminated by exhibit ‘A’ in breach of his right of fair hearing, must be declared null and void in accordance with the law to restore the appellant to his post in the Civil Service.
For the respondent however, it was argued that since the trial court and the court below were satisfied that the procedure adopted by the respondent in terminating the appointment of the appellant was in order, for the appellant to succeed in this appeal, he has to show that the decisions in the two courts below contravened the rules of natural justice enshrined in section 33(1) of the 1979 Constitution, which the appellant had failed to do. Respondent’s counsel observed that for an employer to dispense with services of his employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even where the allegation for which the employee is being dismissed involves accusation of crime as was decided in Jirgbaglz v. U.B.N. Plc (2001) 2 NWLR (Pt. 696) 11. Counsel finally submitted that the appellant having failed to give cogent reasons why this court should set aside two concurrent judgments of the two lower courts, this issue must be resolved against the appellant.
In this issue, the complaint of the appellant is that he was not afforded right of fair hearing before his appointment was terminated by the respondent. The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication. Fair hearing is not only a common law right but also a constitutional right. Thus, by virtue of section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, relied upon in the present case, in the determination of his civil rights and obligations, a person is entitled to a fair hearing within a rensonable time by a court or other tribunal established by law. The requirement of this provision of the Constitution entails the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. See Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909; UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 376 and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.
In the present case, the appellant has no quarrel whatsoever with the steps taken by the respondent for interdicting him from service on account of his role in the loss of 120 bales of stockfish from the store where the appellant was serving as a store assistant, the setting up of a Board of Inquiry to investigate the loss in the store, the appearance of the appellant before the Board of Inquiry to give evidence and the report of the Board of Inquiry a copy of which was given to the appellant. The complaint of the appellant is with the contents of exhibit’ A’, the letter terminating his appointment without giving him a fair hearing particularly when exhibit’ A’ came after the receipt of the report of the Board of Inquiry ‘B’ which recommended the reinstatement of the appellant to his post in the service of the respondent. There is no doubt that the respondent which is a domestic tribunal with quasi judicial jurisdiction, is bound to observe the rules of natural justice enshrined in section 33(1) of the 1979 Constitution. See Wilson v. A.-G., Bendel State (1985) 1 NWLR (Pt. 4) 572 and ex-parte, Olakunrin (1985) 1 NWLR (Pt. 4) 652. It is also well settled that the consequence of a breach of the rules of natural justice as contained in section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria is that the decision reached thereby is a nullity and liable to be set aside. See Adigun v. C A.-G. of Oyo State (1987) 1 NWLR (Pt. 53) 678; Olatunbosun v. NISER (1988) 3 NWLR (Pt. 80) 25; and Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652 at 699. The question is whether in the instant case the appellant has established that the respondent had acted in breach of the rules of natural justice in terminating his appointment. The stand of the respondent on the appellant’s claim is that it is not bound to accept the report of the Board of Inquiry to reinstate the appellant particularly when the same report found the appellant grossly negligent in causing the loss of 120 bales of stockfish from the store where the appellant was serving to his employer. On those rather undisputed facts, it is difficult to see where the appellant’s complaint of denial of fair hearing can be rooted. The relevant part of the letter exhibit ‘A’ which forms the basis of the appellant’s complaint in this issue in paragraph one reads: –
“Termination of appointment
In consideration of the fact that your records submitted to the Commission have been found to be stained with several offences which show that you are not amenable to discipline in the spirit of the present regime, your services are no longer required. Consequently, the Commission has decided that your appointment should be terminated with effect from 1st July, 1984.”
Taking into consideration that this letter is dated 1st June, 1984, while the termination of the appellant’s appointment was to take effect from 1st July, 1984, it means that the appellant was given one month’s notice before the termination of appointment. Since the appellant is not complaining of the termination of appointment with inadequate notice, his complaint of inadequate explanation of the nature of the offences mentioned in the letter as reasons for the termination of his appointment is quite irrelevant. This is because it has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. See Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390 at 405 and Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370. Thus, in the absence of even the appellant’s letter of appointment into the Civil Service of Rivers State stating the terms of his employment and the right of the appellant or the respondent to terminate the same, the appellant has failed to prove that the termination of his appointment by exhibit ‘A’ was a breach of his right of fair hearing resulting in that termination being null and void and of no effect as claimed by him. This issue is therefore determined against the appellant.
The next issue for determination is whether the Court of Appeal was right in holding that the appellant never pleaded the Civil Service Rules. This issue has been partially resolved earlier in this judgment where the preliminary objection of the respondent on ground 2 of the grounds of appeal and issue 2 raised in the appellant’s brief now under consideration. Having found that both parties pleaded facts relying on the Civil Service Rules at the trial court, the present issue must be resolved that the lower court was indeed wrong in holding that the appellant never pleaded the Civil Service Rules. What remains to be determined now is whether the point raised by the appellant in this appeal that his appointment not having been determined in accordance with the procedure laid down under Civil Service Rule, 04107, is null and void and of no effect. The recent decision of this court in Iderima v. Rivers State Civil Service Commission (2005) 16 NWLR (Pt. 951) 378 at 392-393 which the appellant claimed is on all fours with the present case which was cited and relied upon. Unfortunately, that case of Iderima v. RSCSC (supra) is not on all fours with the present case as claimed by the appellant. This is because in that case, the Civil Service Rule 04107 relied upon by the appellant exclusively dealt with the procedure to be observed in the dismissal of a civil servant. In that case this court in allowing the appellant’s appeal, held that the dismissal of the plaintiff/appellant not having been made in compliance with the procedure laid down under Civil Service Rule 04107, was null and void leading to the setting aside of the concurrent judgments of the trial court and the Court of Appeal. However in the instant case, the appellant cannot take the advantage of that decision because he was not dismissed from the service of the respondent under Civil Service Rule 04107. While at the trial court on pleadings and evidence the appellant cited and relied on Civil Service Rule 04107, the terms of which were not disclosed at the trial court, the Court of Appeal or at the hearing of the appeal in this court, the appellant shifted the basis of his claim to Civil Service Rule 04107 dealing with procedure for dismissal and the case of Iderima (supra). In the present case the appellant’s appointment was merely terminated in exhibit ‘A’ by giving him one month’s notice. Therefore, since dismissal from service does not form part of the case of the appellant in this appeal, he cannot expect to reap the benefit of the interpretation and application of the provisions of Civil Service Rule 04107 in Iderima’s case (supra) to justify the setting aside of the decisions of the trial court and the Court of Appeal in the present appeal. With this conclusion on the failure of the appellant to bring his case within the provision of Civil Service Rule, 04107 to warrant the declaration of the termination of his appointment null and void, the need to look into the third issue in the appellant’s brief as to whether or not the court below was right in holding that the appellant did not plead that his appointment was one with statutory flavour does not arise.
Finally, the attitude of this court to concurrent findings of fact is well settled. Where there are concurrent findings of fact by the Court of Appeal and the trial court against the appellant, such findings can only be interfered with by this court when exceptional circumstances have been shown by the appellant. The appellant in the instant case not having shown by any cogent argument the existence of such exceptional circumstances to disturb these concurrent judgments, this appeal cannot succeed. See Lengbe v. Imale (1959) SCNLR 640: Omoborinola II v. Military Government of Ondo State (1998) 14 NWLR (Pt. 584) 89; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Idundun v. Okumagba (1976) 1 NMLR 200 and Okorie Echi & Ors. v. Joseph Nnamani & Ors. (2000) 8 NWLR (Pt. 667) 1 at 12.
In the result this appeal fails and it is accordingly hereby dismissed. The judgment of the court below affirming the judgment of the trial court dismissing the appellant’s action is hereby affirmed.
There shall be N10,000.00 costs against the appellant in favour of the respondent.
SC.183/2001
