Rasheed Busari V. Osun State Water Corporation & Anr. (2007)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS J.C.A,
The Plaintiff was employed as a daily paid motor-cycle mechanic by the Water Corporation of Oyo State on 3rd July, 1978 (see Exhibit “P1”). On 22nd December, 1992 he received a letter with Ref. No. CP.161/160 (Exhibit P2) confirming his appointment. It was issued by Osun State Water Corporation (the State where he was deployed to after it had been carved out of Oyo State in 1991).
Exhibit P2 reads:-
“OSUN STATE WATER CORPORATION
P.M.B.216
Headquarters
Ede
22nd December, 1992.
Our Ref. No. CP/161/160
Mr. R.B. Busari
Senior Technical Assistant
Osun State Water Corporation
Okinni dam
Thro:
Officer-in-charge, Okinni
Confirmation of Appointment
I am pleased to inform you that the confirmation of your appointment with effect from the 1st April, 1992 has been approved. Please accept my congratulations.
Signed: S.A. Sanusi
For: General Manager
Osun State Water Corporation”
He gained promotion to the post of Senior Technical Assistant (Mech.) on salary grade level 07 step 4 which is N10,008.00 per annum with effect from 1st January, 1996. The letter conveying the promotion was dated 2nd September, 1997 and was tendered in evidence as Exhibit P3. Exhibit “P3” reads as follows:-
“OSUN STATE WATER CORPORATION
P.M.B. 216
ERINLE, EDE, NIGERIA
Our Ref. C.11/119/2 2nd September, 1997
Mr. R.B. Busari
Technical Assistant I (m)
Osun State Water Corporation
P.M.B. 4317
Oshogbo.
Thro’ Area Engineer/Manager, Oshogbo
Promotion to the Post of Senior Technical Assistant (Mech.)
I have pleasure in informing you on behalf of the Board of Osun State Water Corporation that you have been promoted to the post of Senior Technical Assistant (Mech.) on Salary Grade Level 07 step 4 i.e. N10,008.00 per annum, nominally with effect from 1st January, 1996 but with financial benefit from 1st January, 1997.
- Your new incremental date is 1st January.
- Please accept our congratulations on this well merited promotion. It is our hope that you will continue to work hard for the success of the Corporation and to justify your new status.
Signed: C.O. Gbenjo
For: General Manager.”
The Plaintiff was later suspended from duty following allegation of his involvement in the theft of 41/2 Nos. 680mn pressurized steel pipes stocked at Oke Aiyepe Reservoir Road, Oshogbo. The letter of suspension admitted as Exhibit “P6″ reads:-
OSUN STATE WATER CORPORATION
P.M.B. 216
ERINLE, EDE, NIGERIA
Our Ref. C.85/2/40
Your Ref.
21st September, 1998
Mr. R.B, Busari
Senior Tech. Asst. (m)
Osun State Water Corporation
Okinni Dam
Okinni.
Through: The Area Engineer/Manager, Oshogbo
SUSPENSION
A disturbing report has been received from the Divisional Police Officer, Oja-Oba, Oshogbo of your alleged involvement in the theft of 41/2 Nos. 680mm pressurized steel pipes stocked at Oke Aiyepe Reservoir Road, Oshogbo since 1979.
- Your involvement in the alleged theft has been considered by the Corporation and it has been decided that you be suspended from duty and you hereby stand suspended with immediate effect until the outcome of the Police investigation.
- You are hereby suspended in accordance with Section 46(2) of the Civil Service Commission Regulation (1978).
- During the period of your suspension, the following conditions shall apply:-
(i) You shall not be paid any salary in accordance with Section 49(2) of the Civil Service Commission Regulations (1978) until the investigation against you is disposed of;
(ii) You should not leave Osun State without the permission of Osun State Water Corporation and you should keep the Corporation informed of the address at which instruction to you can be delivered. If you fail to comply with instructions delivered at such address within 24 hours of such delivery, you would be regarded as having been absent from duty without leave in accordance with section 48 of the Civil Service Commission Regulations (1978).
(iii) You should hand-over all the properties of the Corporation in your custody to the Area Engineer/Manager, Oshogbo before vacating your office.
Signed: C.O. Gbenjo
For: General Manager”
The Plaintiff and one Friday Okpe were charged to the Chief Magistrate’s Court Oshogbo for the offences of conspiracy to commit a felony and stealing on 9th August, 1999 in charge No. MOS/93c/99 but were discharged and acquitted on 30th May, 2000, (see Exhibits P5 and P4 respectively) On 8th June, 2000, Mr. M.O. Agboola who defended them in the Magistrate Court wrote to the General Manager, Osun State Water Corporation notifying him of the outcome of the case and appealed for his reinstatement. Instead of his reinstatement, the Plaintiffs appointment was terminated via letter dated 27th November, 2000 (Exhibit P8). The letter reads thus:-
“OSUN STATE WATER CORPORATION
P.M.B. 216
ERINLE, EDE, NIGERIA
Our Ref: C.58/182
Your Ref:
27th November, 2000
Mr. R.B. Busari
Osun State Water Corporation
Ede.
Termination of Appointment
The Governor of Osun State has approved your termination of appointment from the Civil Service of the State in the Public interest. Your disengagement from the public service takes effect from the date of this letter. You will however be paid one month’s salary in lieu of notice.
- You are enjoined to surrender on receipt of this letter, any property of government in your care.
- The government appreciates your services to the State and wishes you the best in the future.
Signed: C.O. Gbenjo
For: General Manager”
The Plaintiff’s counsel wrote letters to the General Manager of Osun State Water Corporation and the Attorney-General of Osun State appealing for his re-instatement but to no avail. In the reply written by one Mr. J.A. Omisanmi on behalf of the General Manager of the Water Corporation, he stated that “the termination of appointment of Mr. Rasheed R. Busari was done in line with the Legal advice of the Ministry of Justice” (Exhibit P9). The legal advice given by the Ministry of Justice in respect of the outcome of the case was tendered as Exhibit “D1” and it is dated 18th December, 2000. The letter is as follows:-
“OS52/115/44 18th Dec., 2000
The General Manager,
Water Corporation of Osun State,
Ede.
Re: C.O.P. v. FRIDAY OKPE & RASHEED BUSARI
Charge No. MOS/93C/99
Your letter dated 21st June, 2000 reference C. 129/237 in respect of the above matter refers.
- I am directed to inform you that after a careful perusal of the Judgment of the Chief Magistrate’s Court Oshogbo, in respect of the two accused persons who are your employees, we have the following advice to offer:-
(1) The appointment of the first accused person i.e, Rasheed Busari be terminated
(2) The second (sic) accused person i.e. Friday Okpe be retired.
Thanks.
Signed: R. A. Shiyanbola
Director of Litigation and
Advisory Services
For: Solicitor-General and
Permanent Secretary.”
Having exhausted all avenues to get reinstated to his appointment the Plaintiff instituted an action in the High Court Oshogbo on 25th June, 2001 in suit No, HOS/110/2001 seeking the following reliefs in paragraph 20 of the statement
of claim:-
“20. WHEREOF the Plaintiff claims against the Defendant (sic) jointly and severally as follows:-
(1) A declaration that the Plaintiffs termination from the Osun State Civil Service by a lettered (sic) dated 27th November, 2000 issued by the first defendant is illegal, malicious, unconstitutional and contrary to the Public Service Regulations, Financial Regulations and General Orders and therefore improper, invalid, null and void and of no effect whatsoever and that the Plaintiff still remains an employee of Osun State Water Corporation in the Osun State Civil Service and should be paid all his arrears of salaries from November 2000 when the plaintiff’s appointment was wrongly terminated.
ALTERNATIVELY:-
An Order directing the 1st defendant to pay to the Plaintiff all his arrears of salaries and emoluments till the date of judgment as well as all his due retirement benefits, pension and gratuity for the period of over 20 years for which the Plaintiff has put in pensionable service with the 1st defendant”.
The Plaintiff’s claim was denied and in paragraph 3 of the Statement of Defence the defendants averred as follows:
“3 In reply to paragraphs 3,8,16 – 19 the defendants stated (sic) as follows:-
(a) That there was restructuring exercise carried out by the Government of Osun State sometime in October/November 2000.
(b) That the said restructuring exercise affected all government agencial (sic) and parastatals including the plaintiff’s corporation.
(c) That the restructuring exercise aforesaid has nothing to do with then plaintiff’s criminal case in connection with the stealing of the Corporation property.
(d) That all other staff of the Corporation including the Plaintiff were affected by the restructuring exercise which saw the exit of deadwoods in the service of the Government of Osun State.
(e) (sic)That the defendants shall contend at the trial of this suit that the appointment of the Plaintiff was validly terminated.
(f) That the said restructuring exercise has been carried out and plaintiff’s appointment terminated before the receipt of the legal advice of the Ministry of Justice.
(g) That the advice sought from the Ministry of Justice was in relation to the theft and what could be done to the Plaintiff in view of the judgment of the Plaintiff in the criminal case.
(h) That the advice was not in relation to the restructuring exercise which affected the Plaintiff and other staff of the Corporation.
(i) The defendant (sic) shall contend at the hearing of this suit that this Honourable Court lacks the jurisdiction to entertain the matter being status (sic) barred by virtue of Section 2(a) Public Officers Protection Law Cap. 379 LFN 1990.
(j) The defendant (sic) shall rely in all relevant documents referred to in the pleadings and those not pleaded but relevants (sic) and connected to the suit.
WHEREOF, the defendant avers (sic) that the claim lacks merit and should be dismissed with cost.”
The Plaintiff testified and tendered Exhibits P1 – P10 while the defendants called Joshua Omisanmi an Assistant Chief Executive Officer who testified and tendered Exhibit “D1” before the parties closed their case and learned counsel addressed the court. In a reserved judgment delivered on 26th April, 2004 the learned trial Judge dismissed the Plaintiffs claim by holding that the determination of the Plaintiff’s appointment by payment of one month’s salary in lieu of notice was valid.
The Plaintiff was dissatisfied with the judgment and appealed against it in his Notice of appeal dated 21st October, 2005 which contained five grounds of appeal from which he formulated the following three issues for determination in the appellant’s brief:-
- Whether the Plaintiffs employment enjoyed statutory flavour and whether statutory instruments were followed by the defendant in terminating the plaintiff’s employment?
- Whether the reason for terminating the Plaintiffs employment was proved before the lower court.
- whether the plaintiffs employment was validly terminated by notice?
On their part the respondents formulated the following two issues namely:-
(i) whether the termination of the appellant’s appointment was not proper having regard to the unencumbered right of the Osun State Government.
(ii) whether the lower court’s decision was not proper when the court took into consideration all the necessary issues and facts before arriving at its decision.
The appellant filed a reply brief in answer to the respondents’ submissions that the appellant’s appointment was terminated by the appropriate authority in accordance with the Public Officers (Special Provisions) Act Cap 381 Laws of the Federation of Nigeria 1990 and the action is statute-barred by virtue of Section 2(a) of the Public Officers Protection Act.
When the appeal was called the appellant and his counsel were present but the respondents though served were absent and unrepresented. The appeal was deemed as having been argued on the briefs according to Order 6 Rule 9(5) Court of Appeal Rules.
The main issues in this appeal which are subsumed in issue 1 are:
(a) whether the Plaintiff’s employment enjoyed statutory flavour; and
(b) whether statutory instruments were followed by the defendant in terminating the plaintiffs employment.
Learned counsel for the appellant contended that the only witness called by the defendants admitted that the regulations were applied to the plaintiff when he was suspended from office as specific sections of the Regulations were relied upon when Exhibit P6 was written. Also the learned trial Judge made a specific finding that the Plaintiffs employment was made permanent, thereby giving rise to the application of the Civil Service Regulations. Learned counsel then submitted that having put the plaintiff on suspension, the Regulations provide for what is to be done if the employee was later acquitted and the procedure for termination of appointment under the Regulations are outlined in part 6 of the Regulations. Learned counsel for the appellant argued that although the use of the words “public interest” in the letter of termination makes the Public Officers Special Provisions Act relevant, its applicability was not adverted to by the learned trial Judge and even if the Act applied, the defendants cannot justify the termination under it since Exhibit “8” was signed by someone for “General Manager” and there is no evidence of delegation of authority. It was therefore submitted that neither the “General Manager” nor “Ministry of Justice” constituted the appropriate authority under the Public Officers (Special Provisions) Act.
Learned counsel for the respondents argued that although the plaintiff was charged to a Magistrate’s Court on allegation of stealing and even though he was suspended in accordance with Regulations 46(2) and 49(2) of the Public Service Regulations 1978, the determination of his appointment was not based on the criminal trial. Furthermore, since it was the Osun State Government that terminated the appointment which it had power to do, the exercise of that power cannot be questioned. Learned counsel contended that the contract of employment that existed between the plaintiff and defendants was a mere servant and master relationship which lacked any statutory flavour and the only remedy available to an employee whose appointment was wrongfully terminated is the payment of salary in lieu of notice and any other legitimate benefits he may be entitled at the time the employment was put to an end. He submitted that since the employment confirmation and promotion letters were silent as to the period of notice, the length of notice is what the Judge considers to be reasonable which in this case was one month’s notice or salary in lieu of notice.
There is no running away from the fact that what triggered off this case was the allegation of conspiracy to commit a felony leveled against the Plaintiff and one Friday Okpe which led to their suspension and prosecution in the Chief Magistrate’s Court, Oshogbo from which they were eventually discharged and acquitted. In an effort to get re-instated back to his job, the plaintiff through his solicitors first notified his employers about the outcome of the case and appealed for his prompt re-instatement. On receipt of the letter (Exhibit 7A), the Osun State Water Corporation wrote to the Ministry of Justice on 21st June 2000. The Ministry of Justice in their reply dated 18th December, 2000 (Exhibit D1) advised that the appointment of the plaintiff be terminated while Friday Okpe was to be retired. This advice came after the plaintiffs appointment had been terminated on 27th November, 2000. The defendants were the ones who first invoked the Civil Service Commission Regulations to suspend the plaintiff and they cannot now resile from that position by treating the contract as a mere servant and master relationship. If the defendants were convinced right from the start that the contract lacked any statutory flavour, they should have relieved him of his appointment without first subjecting him to any disciplinary measures. Since the plaintiffs appointment was confirmed and he was subsequently suspended from his employment in accordance with the Civil Service Regulations, the logical conclusion which can be drawn on the nature of his employment is that it was not an ordinary contract which could be terminated at will but must follow the laid down procedure as stipulated in the Civil Service Rules. Regulation 47(5) of the Public Service Commission Regulations is relevant and it provides as follows:
“47(5) if the criminal proceedings against an interdicted or suspended officer result in his acquittal or if the disciplinary proceedings against him (including any disciplinary proceedings with a view to dismissal instituted or continued in pursuance of regulation 50) result otherwise than in his dismissal, he shall be reinstated in his office by the disciplinary authority with effect from the date of such result.”
The principle of law which states that you cannot force a willing servant on an unwilling master is not applicable in this instance as the plaintiff’s employment IS not at the pleasure of the Government or any of its parastatals. See BASHIR ALADE SHITTA-BEY v. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC 40, OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599 AT 613.
The strongest wicket on which the respondents are batting on the validity of the termination of the appellant’s appointment is predicated on the argument that it was carried out by the appropriate authority and that the act of the appropriate authority can be done by any “Public Servant”. This may well be so. The Issue was exhaustively discussed in NEPA v. OSOSANYA (2004) 5 NWLR (PT.867) 601. The Supreme Court considered the ouster clause in Section 3 of the Public Officers (Special Provisions) Decree NO.17 of 1984 (now Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation of Nigeria 1990 and when it can be invoked and held that under the Public Officers (Special provisions) Decree No. 17 of 1984, the Military Governor of any State or the Head of State of the Federal Republic of Nigeria or any person authorized by them had power to dismiss or remove a public officer from office summarily or to retire him from public service compulsorily. Once it is established that the officer was dismissed or retired and/or that his appointment was terminated under Decree No. 17 of 1984, a trial court pursuant to the provisions of Section 3(3) of the Decree would have no jurisdiction to inquire into such dismissal, retirement or termination. But if it is not established that the dismissal, termination or retirement is under the Decree then the ouster of jurisdiction clause in the Decree cannot be invoked or avail the terminating authority. Thus, once it is established that the appropriate authority or its delegate acted under the Decree that ipso facto puts an end to the matter as no other thing should be enquired into. In such circumstance, the court is precluded from going into the validity of the action. The reference or non-reference to Decree No. 17 of 1984 in the instrument, terminating the appointment of a public officer or removing him from office is not conclusive on the question of whether the act of termination or dismissal had indeed been carried out in accordance with the provisions of the Decree. What is decisive is that there must be evidence to satisfy the court that the decision to terminate or dismiss the public officer was taken by the appropriate authority and that the said letter was signed by the appropriate authority or by a person duly authorized by him. See: NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt.135) 688, F.C.D.A v. SULE (1994) 3 NWLR (Pt.332) 257.
In the lead judgment of Iguh J.S.C. at page 620 he said:-
“There can be no doubt that there was abundant evidence before the court which linked the letters of termination/dismissal to the appropriate authority acting under the provision of Decree No. 17 of 1984. By Exhibit PE1, the then Head of State, General Sani Abacha, in his letter to the Hon Minister of Power and Steel dated the 8th August, 1994 invoked and delegated his powers under the Public Officers (Special Provisions) Decree No. 17 of 1984 to the latter to terminate and/or dismiss the respondents with immediate effect. This letter also authorized the Minister or any officer of the appellant to sign the termination or dismissal letters of the respondents. Following Exhibit PE1, the Honourable Minister of Power and Steel by his letter of the 9th August, 1994 conveyed to the appellant the approval and/or directive of the Head of State to terminate and/or dismiss the respondents pursuant to the provisions of Decree No, 17 of 1984. It is pursuant to these two letters that the respondents were terminated and/or dismissed by the appellant’s letters of the 10th August, 1994 duly signed by their S.A Kida, the personnel officer of NEPA. These indisputable facts were before the court and it is absolutely difficult to accept that the respondents’ letters of termination/dismissal were not linked with the exercise of the powers of the Head of State under Decree No. 17 of 1984 as suggested by the Court of Appeal”
Exhibit “8” was written by C.O. Gbenjo on behalf of the General Manager. In the opening paragraph it was stated that “the Government of Osun State had approved your termination of appointment from the Civil Service of the State in the Public interest”. Before the termination of the appellant can be covered by the Public Officers (Special Provisions) Act, the respondents needed to produce evidence showing that the Governor of Osun State, who is the appropriate authority divested his powers under the Act in favour of the General Manager, Osun State Water Corporation and the latter then delegated the power to Mr. C.O. Gbenjo. If the power was delegated to the General Manager, he would not in turn delegate same to the officer that signed the letter-delegatus non est delegare. All that the respondents succeeded in showing was that an, officer of the Osun State Water Corporation wrote Exhibit 8, terminating the appellant’s appointment and claimed in their brief before this court that the termination was by the Osun State Government. It is an unsubstantiated claims that C.O. Gbenjo acted on the authority or directive of the Oyo State Government. On this basis the claim by the respondents must fail. No evidence was adduced to substantiate the claim in Exhibit 9 that the decision to terminate the plaintiff’s appointment was taken by the State Government and not the Water Corporation.
The recourse by the respondents on the action being statute barred by virtue of the Public Officers Protection Act Cap.379 Laws of the Federation 1990 cannot avail the respondents. As submitted by learned counsel for the appellant in the Reply Brief, the Act will only apply in respect of legal proceedings between Government of States or between the Government of the Federation and the Government of a State and not between an individual and the State Government. The Act contemplates actions in respect of items on the exclusive legislative list. The law which would have applied is the Public Officers Protection Law of the Old Oyo State which was repealed before Osun State was created by the State Proceedings Edict No.5 of 1990. It was recently applied by this court in AYORINDE V. OYO STATE (2007) All F.W.L.R (Pt.356) 709.
In which ever facet this case is viewed, it is clear that the termination was illegal, unconstitutional and contrary to the Public Service Regulations. It is therefore invalid, null and void and of no effect. The learned trial Judge made a correct finding that since the appointment was confirmed, it is governed by the Civil Service Regulations. Although Exhibits P1 and P3 did not say anything about determination of the appointment, the learned trial Judge was wrong in holding that the giving of one month’s salary in lieu of notice was reasonable. The action of the plaintiff ought to have succeeded and the termination of appointment nullified.
I find that the appeal has merit and it is hereby allowed. The judgment of the learned trial Judge delivered on 26/4/2004 is hereby set aside. I hereby declare that the plaintiff’s termination from the Osun State Civil Service is illegal, unconstitutional and contrary to the Public Service Regulations. It is therefore invalid, null and void and of no effect. I also declare that the Plaintiff is still an employee of Osun State Water Corporation and should be re-instated to his former position as a Senior Technical Assistant (Mech.) the position he held before his suspension from service and eventual termination and is entitled to be paid all his arrears of salaries from November, 2000 when his appointment was wrongly terminated.
He is entitled to costs which are assessed at N10,000.00 against the Respondents.
Other Citations: (2007)LCN/2538(CA)
