MRS. COMFORT E. BASSEY v. CIVIL SERVICE COMMISSION CROSS RIVER STATE & Ors
(2010)LCN/3874(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/C/166/08
RATIO
TRIBUNAL: THE POSITION OF THE LAW ON GIVING A HEARING TO A PARTY APPEARING BEFORE AN ADMINISTRATIVE TRIBUNAL
The position of the law on giving a hearing to a party appearing before an administrative tribunal is as stated in BABA v N.C.A.T.C. (1991) 5 NWLR (P. 192) 388 where Bello CJN made the following pronouncement at pages 427 – 428-
“An administrative tribunal is not bound to follow the procedure and practice of the court of law; that although it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitle to be given adequate opportunity not only to know the case against him but also to answer it. However, he is not entitled to oral hearing unless such a hearing is expressly prescribed. The absence of oral hearing or an opportunity to be heard before an administrative tribunal does not necessarily tantamount to a denial of natural justice.” PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWATU Justice of The Court of Appeal of Nigeria
Between
MRS. COMFORT E. BASSEY Appellant(s)
AND
1. CIVIL SERVICE COMMISSION CROSS RIVER STATE
2. GOVT. OF CROSS RIVER STATE
3. CROSS RIVER STATE L0CAL GOVT COMMISSION, CALABAR
4. THE COMMISSIONER OF POLICE CROSS RIVER STATE Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Appellant, at the time of her dismissal from service, was a Chief Typist with the Cross River State Local Government Service Commission where she had been deployed to work since 5/6/2003. Before her dismissal from service via letter Ref. CRC/S/7015/Vol.1/104 of 3rd September, 2003 she had put in 15 years in the service of the Cross River State Government. The letter of dismissal dated 3rd September, 2003 admitted as Exhibit ‘E’ reads:-
GOVERNMENT OF CROSS RIVER STATE OF NIGERIA CIVIL SERVICE COMMISSION, NEW SECRETARIAT P.M.B. 1048, CALABAR
Our Ref: CRC/S/7015/Vol.1/104
Sept., 3, 2003
Mrs. Bassey, Comfort
(Chief Typist)
u.f.s: The Chairman
Local Government Service Commission Calabar.
DISMISSAL FROM SERVICE
I am directed to convey the Commission’s decision in the disciplinary charge preferred against you for forgery and issuance of fake appointment letters to unauthorized persons at the Unified Local Government System, Calabar. Based on the evidence before it, the Civil Service Commission has found you guilty of perpetrating fraud, which constitutes serious misconduct punishable under Civil Service Rules.
2. Accordingly, you are by this letter DISMISSED from the service of Cross River State Government with effect from 3rd September, 2003.
3. You are hereby directed to immediately handover all Government property in your possession, if any, to your Head of Department.
4. Copies of this letter are hereby forwarded to head of Civil Service the Permanent Secretary, Department of Establishments and management Service, the Accountant-General and State Auditor-General, for their information and necessary action.
Signed: Obo, Fidelis E. (KSM)
Permanent Secretary
For Chairman, Civil Service Commission.”
paragraph 16 of the Statement of Claim, claimed the following reliefs:-
“16. WHEREOF, the Plaintiff claims against the Defendants jointly and severally as follows:
(a) A declaration that the dismissal of the Plaintiff from the employment of the first Defendant, and the Defendants is unconstitutional, ipso facto null and void and of no effect whatsoever, and the allegation giving rise to the queries/dismissal are frivolous and unfounded.
(b) An order on the Defendant re-instating the Plaintiff to her post as the Chief Typist in the Office of the first Defendant (deployed to the third Defendant) and reinstatement/payment of all her salary arrears, benefits, entitlements and allowances, etc.
(c) General damages of N10,000,000.00 (Ten Million Naira) for the psychological dislocation, damage to Plaintiff’s reputation, integrity and career, as a result of the Defendants’ overzealous, bias, unwarranted, rash and harsh actions, and the cost of this action.”
The Defendants denied the claim and averred in paragraphs 7 and 15 of the Statement of Defence as follows:
“7. The Defendants aver that the plaintiff issued fake letters of appointment, fake and illegal posting of staff to many Local Government Councils in the State including Obanliku, Ikom, Bakassi, Calabar South, Calabar Municipality, etc. and personally sent memos and also contacted some principal officers of these Councils to press for regularisation and pay rolling of these illegal staff. The list of these fake staff is annexed hereto.
15. The Defendants aver that the plaintiff’s dismissal was in accordance with her conditions of service because-
(a) The plaintiff was queried severally in an attempt to change her for better performance but she became stubborn, incorrigible and unrepentant.
(b) The plaintiff was granted fair hearing by the 1st and 3rd defendants before she was disciplined in accordance with the terms of the contract of employment.
(c) There is no law prohibiting instituting disciplinary measures against a Civil Servant whose conduct is both a crime and a breach of the terms of the contract of employment; and
(d) the conduct of the plaintiff in issuing fake and unauthorized appointment/posting letters as well as authorized and pressing for payment of salaries to undeserving persons by some Local Government Councils in the State at a time when these Council were owing arrears of salaries to genuine Council Staff is an embarrassment to the Defendants, a breach of trust and a serious misconduct.
(e) The Defendant plead and will rely on the following documents:
i) The query dated 4/8/98, reply thereto, the decision thereon dated 10/9/98 and the plaintiffs apology and undertaking
ii) Anther query/observation dated 8/9/98
iii) Reply thereto dated 9/9/98
iv) The plaintiffs Memos/Notes dated 5/5/02, 6/5/02, 17/11/02, etc
v) A letter dated 12/11/03 and
vi) Other relevant documents.”
The Plaintiff filed a Reply to the Statement of Defence She in person and tendered two queries which were received in evidence as Exhs ‘A’ & ‘C’. She said she replied to the queries but it is the Reply dated 6 June, 2003 that was marked Exh ‘B’ The letter inviting her to appear before the Civil Service Commission was admitted as Exh. ‘D’ while the letter of dismissal was marked Exh ‘E’. After her dismissal she retained the services of a lawyer who wrote a letter to the Attorney-General. The letter was received in evidence as Exh. ‘F’. Exhibits G, G1, H, H1, H2, H3 and J were tendered through her in cross-examination. The defendants called four witnesses who testified and tendered other exhibits. Counsel addressed the court and in his judgment delivered on 21/7/2008, Ita J. dismissed the plaintiffs claims, hence the Notice of Appeal filed on 20/8/2008 containing 7 grounds of appeal.
The appellant formulated the following six issues for determination:
1. Whether the learned trial Judge erred in law when he caved into sentiments to guide his sense of judgment thus: “On this point, I prefer to believe DW2 a high officer in government who had no reason to lie.”
2. Whether the learned trial Judge erred by relying on and upholding the dismissal of the plaintiff by the Cross River State Civil Service Commission which dismissal was predicated on lack of fair hearing.
3. Whether the learned trial Judge erred in law when he failed to take cognizance that for an employment that enjoys statutory flavour, it is illegal and improper for an ad hoc commission to suo motu dismiss a staff upon criminal charges without taking her to police for investigations and to court for trial and sentence or acquittal.
4. Whether the learned trial Judge erred when he gave judgment on the premise of DW2’s evidence that Civil Service Rules provide for dismissal upon three queries without recourse to the particular section of the rule and also by not very well referring to other issues canvassed.
5. Whether the learned trial judge erred in law by failing to draw a distinction between the allegations against the plaintiff from that of her scheduled duties whereupon she was dismissed.
6. Whether the learned trial Judge erred in law to refuse the Plaintiff/Appellant justice in its entirety on grounds that she demanded for both reinstatement and damages.
The Respondents also formulated six issues for determination.
They are:
1. Whether the learned trial Judge’s comment that “on this point, I prefer to believe DW2, a higher officer in government who had no reason to lie” occasioned a miscarriage of justice.
2. Whether the appellant was given fair hearing before she was dismissed.
3. Whether in all cases of employment with statutory flavour, the employer must take the employee to the police for investigation and to court for trial and sentence or acquittal of the alleged crime before disciplinary action can be taken.
4. Whether the learned trial Judge solely relied on the evidence of DW2 that Civil Service Rules provide for dismissal upon three queries to hold that the Respondents dismissed the Appellant from their service lawfully.
5. Whether the learned trial Judge was right in not making a distinction between the allegation of forging appointment letters and schedule duties of the appellant.
6. Whether the learned trial Judge was right to hold that re-instatement and damages cannot be granted together.
The complaint of learned counsel for the appellant is that the learned trial Judge showed bias in preferring the evidence of DW2 to the appellant’s claim that at the time she was dismissed from service, no panel had been set against her, neither had she been suspended or interdicted and that she was not heard in response to the allegations by her accusers. Learned counsel for the Respondents argued that the Appellant appeared before a panel as borne out in paragraph 4 of the Reply to the Statement of Defence and the evidence given by the appellant herself.
If the appellant was dismissed without a hearing, the dismissal is unlawful especially considering the reasons for dismissal contained in Exhibit ‘E’.
In paragraph 11 of the Statement of Claim and paragraph 4 of the Reply to the Statement of Defence, what the Plaintiff complained about was lack of fair hearing or fair trial and not lack of hearing. It is the court that can decide whether the plaintiff was given fair hearing and not the plaintiff herself. In paragraph 11, she pleaded thus:
“11- Plaintiff further avers that despite the frivolity and baselessness of the allegations giving rise to the queries, the uncoordinated and unfounded nature of it, the factual and precise replies thereto, and in the absence of fair hearing of the Plaintiff, the Defendants, who have already made up her mind on the matter even before lifting the query went ahead to serve the Plaintiff with a Dismissal from Service’ in the second Defendant’s letter Ref.CRC/S/7015/Vol.1/104 of 3rd September, 2003. Plaintiff pleads and shall rely on the said dismissal letter at the course of trial of this case.”
As against this pleading, the Defendants averred in paragraph 6 of the Statement of Defence as follows:
“6. In further and specific reply to paragraph 11 of the Claim the defendants maintain that the plaintiff was given adequate opportunity to make her oral and written representations by the 1st and 3rd Defendants and cannot therefore raise the issue of absence if fair hearing.”
In her evidence in chief, the Plaintiff stated how she was queried on 5th June, 2003 and 15th July, 2003 and her replies to the queries. Later she was invited to appear before the Civil Service Commission and subsequently served with the letter of dismissal.
I think the appellant’s complaint about not being given a fair hearing relates to what took place when she appeared before the Civil Service Commission before she was served with the letter of dismissal.
I wish to observe that contrary to the submission of learned counsel for the appellant, the appellant was not dismissed before she was invited to appear before the Civil Service Commission. The letter of invitation, Exh. ‘D’ is dated 11th August, 2003 and not 11th September, 2003 as contained on page 18 of the records while Exhibit ‘E’ is dated 3th September, 2003 but was served on the Appellant on 23rd September, 2003.
The position of the law on giving a hearing to a party appearing before an administrative tribunal is as stated in BABA v N.C.A.T.C. (1991) 5 NWLR (P. 192) 388 where Bello CJN made the following pronouncement at pages 427 – 428-
“An administrative tribunal is not bound to follow the procedure and practice of the court of law; that although it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitle to be given adequate opportunity not only to know the case against him but also to answer it. However, he is not entitled to oral hearing unless such a hearing is expressly prescribed. The absence of oral hearing or an opportunity to be heard before an administrative tribunal does not necessarily tantamount to a denial of natural justice.”
The records are not clear on what took place when the Appellant appeared before the Civil Service Commission. According to her, she was not given any hearing before being issued Exhibit ‘E’. She was not allowed to ask questions neither could she say anything. She said she informed the Chairman of the Panel that the proper persons to question on the issue was one Mr. Francis Efa Senior Personnel Officer of the Local Government Service Commission.
What appears clear is that after the appellant had been issued with the queries and she replied to one of them, she appeared before a Panel of the Local Government Service Commission and it was the Chairman of the Local Government Service Commission who had earlier reported the case to the Police, withdrew same and recommended the dismissal of the appellant to the Civil Service Commission. I agree with learned counsel for the Respondents that the appellant was given a hearing before she was recommended for dismissal.
The issue that merits a more critical consideration is that the appellant was dismissed on criminal charges without being arraigned for trial and conviction. In response to this learned counsel for the respondents argued that the appellant had admitted through Exhs G, G1. H, H1, H2, H3 and J that she was involved in the forgery of the letters of employment and letters of postings and claimed that she was lured into it by one Bassey Edim who was dismissed along with her.
Exhibit ‘A’ is the query which was issued to the appellant. It is dated 5th June, 2003 and reads as follows:
“CROSS RIVER STATE
LOCAL GOVERNMENT SERVICE COMMISSION
ADMINISTRATION DIVISION
NO. 18 KING STREET
BIG QUA TOWN
P.M.B. 1279
CALABAR.
JUNE 5, 2003.
Our Ref: LGSC/PS/539/15
Comfort E. Bassey (Mrs)
(Chief Typist)
Local Government Service Commission Calabar.
QUERY – SERIOUS MISCONDUCT
It has been observed that between October 2002 and May 2003, a series of fake letter were purportedly issued by the Local Government Service Commission to some Local Government Councils in the State as well as some individuals. The letters allegedly offered appointments to/appointed some individuals into the Unified Local Government Service while others were posting letters transferring staff from one Council to the other.
One of the letters directed a council to pay personal emoluments to staff who were allegedly involved in a road accident. These fake letters however bore the supposed signature of the Director and Secretary of the Commission.
Findings from preliminary investigations have linked you to this matter in cognizance of the fact that some of the individuals who obtained these fake appointments are known to you as well as the fact that at the time you were responsible for the production of letters of appointment and postings.
Accordingly, a prima facie case of serious misconduct (corruption dishonesty and falsification of official documents) having been established against you, and in line with the provisions of Civil Service Rule 04108 (i) you are hereby notified that the foregoing will form the grounds upon which it is proposed to commence proceedings to dismiss you from the Cross River State Civil Service.
Furthermore, your written representations regarding this matter (if any) should reach this office not later than 48hrs from the date on this letter failing which you will be summarily dismissed.
Sgd:
B. A. Archibong (Mrs),
Director/Secretary,
for: Chairman”
The appellant sent her reply to the query and it was admitted as Exh. ‘B’ wherein she stated –
“Accounts Division
Local Govt. Service Commission
18 King Street
Big Qua Town
Calabar.
6 June, 2003
The Chairman
Local Govt. Service Commission Calabar.
Thro:
The Director/Secretary
Local Govt. Service Commission, Calabar.
REPLY TO QUERY
With reference to your query – Serious Misconduct, No. LGSC/PS/539/15 dated June5, 2003, I wish to state thus:-
That the period (October 2202 and may 2003) mentioned in your query, I was no more in the Administration Division of the Commission as I was posted out from there barely a year now (since June 2002) to be precise. That with reference to paragraph (v) of your query I was only responsible for production of promotion letters. Postings and appointment were typed by any of us in the Computer Unit as could be directed by the Director. Paragraph (vi) of your query accused me of corruption, dishonesty and falsification of official documents, which is not true about me as I was doing my job diligently and sincerely. I have never ever issued or typed any letter to any individual without the consent and approval of the Director/Secretary.
I therefore plead that a prima facie case of a serious misconduct should not be established against me as I was doing my job effectively and efficiently in the interest of the Cross River State Government.
Sgd:
Mrs. Comfort Effiom Bassey
(Chief Typist).”
The query Exh. ‘A’ was for serious misconduct. This misconduct for which a prima facie case had been made out against the appellant was for corruption, dishonesty and falsification of official documents. Rule 04401 of the Cross River State Public Service Rules 2001 defines serious misconduct as a specific act of very serious wrongdoing and improper behaviour, which can be investigated and proved and it includes among others conviction on a criminal charge (other than a minor traffic or sanitary offence or the like) absence from duty without leave; corruption, dishonesty, falsification of records. Rules 04305 and 04306 set out the disciplinary procedure to be adopted in dealing with cases of misconduct and serious misconduct. The Rules state as follows:
“04305 If it is presented to the State Civil Service Commission that an officer has been guilty of misconduct and the Commission does not consider the alleged misconduct serious enough to warrant Proceedings under Rule 04306 with a view to dismissal, it may cause an investigation to be made into the matter in such manner as it considers Proper and the officer shall be entitled to know the whole case made against him, and shall have adequate opportunity of making his defence. If as a result the Commission decides that the allegation is proved, it may inflict any other punishment upon the officer such as reduction in rank, withholding or deferment of increment or otherwise.
04306 unless the method of dismissal is otherwise provided for in these Rules, an officer in the State Civil Service may be dismissed by the State Civil Service Commission only in accordance with this Rule-
(i) The officer shall be notified in writing of the grounds on which it is proposed to discipline him. The query should be precise and to the point. It must relate the circumstances of the offence, and the rule and regulation which the officer has broken and the likely penalty. In serious cases which are likely to result in dismissal, the officer should be given access to any such documents. The officer shall be called upon to state in writing, within the period specified in the query any ground upon which he relies to exculpate himself.
(ii) The query, or preliminary letter, shall be in the format shown below
QUERY OR PRELIMINARY LETTER
………………….
1. ………………
2. ………………
3. ………………
4. ………………
(iii) If the officer submits his representations and the State Civil Service Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly. Should the officer however fail to furnish any representations within the time fixed, the Commission may take such action against the officer, as it deems appropriate.
(iv) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service but deserves some other punishment as it considers appropriate;
(v) Where necessary, the Commission may set up a board of inquiry which shall consist of not less than three persons one of whom shall be appointed Chairman by the Commission. The members of the board shall be selected with due regard to the status of the officer involved in the disciplinary case and to the nature of the complaint which is the subject of inquiry. The head of the officer’s department shall not be a member of the board;
(vi) The officer shall be informed that, on a specific day, the question of his dismissal shall be brought before the board and he shall be required to appear before it to defend himself and shall be entitled to call witness. His failure to appear shall not invalidate the proceedings of the board;
(vii) Where witnesses are called by the board to give evidence before it, the officer shall be entitled to put questions to the witnessed and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof given access thereto;
(viii) If during the course of the inquiry further grounds for dismissal are disclosed, and the State Civil Service Commission thinks it fit to proceed against the officer upon such grounds, the officer shall, by the direction of the Commission, be furnished with a written statement thereof and the same steps shall be taken as prescribed above in respect of the original grounds;
(ix) The board having inquired into the matter shall make a report to the Commission. If the Commission considers that the report should be amplified in any respect or that further inquiry is desirable, it may refer any matter back to the board for further inquiry or report. The Commission shall not itself hear witnesses.
(x) If upon considering the report of the board together with the evidence and all material documents relating to the case the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty shall be imposed the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him if he was interdicted or suspended;
(xii) If upon considering the report of the board the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclosed grounds for requiring him to be terminated or retired, the Commission shall, without further proceedings, direct accordingly”
I wish to observe that the two queries (Exhibits ‘A’ and ‘C’) issued to the appellant made reference to Civil Service Rule 04108 (i) and 04107 respectively. The said provisions relate to the Federal Civil Service Rules 1974. The reference to these provisions cannot invalidate the said queries as Rule 04306 of the Cross River State Public Service Rules 2001 essentially replicates Rule 04107 of the Federal Civil Service Rules 1974 and the two provisions deal with the procedure for dismissal of a civil servant.
What appears to have happened in the instant case is that the Chairman, Cross River State Local Government Service Commission wrote a petition addressed to the Commissioner of Police, Cross River State Command reporting a case of forgery and fraud against the appellant, Bassey Effiong Edim and Michael Okon who were all employees of the Cross River State Local Government Service Commission requesting for a discreet investigation into the allegations. The Police were on this assignment when the Chairman wrote another letter admitted as Exh. V withdrawing the case from the Police because of the re-constitution of the State Civil Service Commission. Before the case was withdrawn, the appellant had made several statements to the Police and had written the Reply (Exh. ‘B’) to the query (Exh. ‘A’). She had also been served with another query dated 15th July, 2003 for being absent from duty without due permission and approval contrary to Civil Service Rules No. 04107 which was admitted as Exh. ‘C’. Even though the appellant said she replied to this query, no document to that effect was tendered. However, her dismissal was not predicated on her absence from duty without permission but for the forgery that was reported to the Police. The recommendation for the dismissal of the appellant was made based on the query and the Reply given by the appellant. The Police recovered a letter written by the Appellant dated 6 May, 2002 to Mr. Ngaji tendered as Exh. ‘G’ and an offer of appointment letter to Vivian Bassey-Eyo admitted as Exh. ‘R’ and ‘R1’.
As stated earlier learned counsel for the appellant argued that since the appellant was not convicted before her dismissal for forgery, the dismissal is unconstitutional, null and void. In reply learned counsel for the respondents submitted that she admitted committing the fraud. Section 36 (5) of the 1999 constitution provides that-
“35(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts.”
The appellant was not charged to court before she was dismissed for forgery and issuance of fake appointment letter. In Exh. ‘B’ the appellant made a clean breast of the accusation made against her in the query (Exh. ‘A’). As explained by Eso J.S.C. in FED CIVIL SERVICE COMMISSION & ORS v. LAOYE (1989) (pt.11) Vol. 20 NSCC 101 at 114 which reviewed several cases of dismissal of employees whose employment enjoyed statutory favour on allegation of crime that was not determined by the courts before their dismissal from service, his Lordship said:
“I would like to emphasis herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge of accusation. However, other considerations might enter. For once such criminal allegations are involved care must be taken that the provision of S.33(4) of the Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all, admit of their involvement in criminal acts.”
His Lordship proceeded to review the following cases: DENLOYE v. MEDICAL DISCIPLINARY COMMITTEE (1968) 1 ALL NLR 306; DR. O.G. SOFEKUN v. CHIEF N.O.A. AKINYEMI & 3 ORS (1980) 5-7 SC 1; EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (pt.34) 162; OLATUNBOSUN v. NISER (1988) 3 NWLR (Pt.80) 25. What happened in FCSC v. LAOYE supra is similar to the situation in this case. The facts in the Laoye’s case may be briefly stated as follows:
Mr. Laoye was employed as an Executive Officer (Accounts) in 1964. Before his posting to the Ministry of External Affairs, he served in various Ministries. He served in the Consulate General, New York from 7973 to 7977. When he returned to Lagos after serving in New York, he was interrogated by the Police and he made a statement to the police. He was thereafter queried to which he sent replies denying the allegations of collusion and receipt of two cheques worth $10,000.00 from Mr. E. E. Akwara because of the endorsements he made on the reverse side of the cheques. Despite his explanations on how his endorsed signatures on the cheques came about, the Federal Civil Service Commission went ahead and dismissed him from the service and this led to his instituting the action seeking declaratory reliefs and reinstatement as well as injunction to restrain the 1st defendant from further interfering with the performance of his duties as a Civil Servant.
Exhibits G, G1, H, H1 H2, H3 & J were tendered by the Respondents through the appellant under cross-examination. In the said Exhibits, learned counsel for the respondents argued, the appellant admitted the allegation of forgery and issuance of fake letters of appointment. Also the learned trial judge in his judgment said Exhibits ‘R’ and ‘R1’ were traced to the plaintiff and she failed to move it from herself to someone else and concluded that since the plaintiff failed to direct the source of the forged letters of employment particularly Exhs. ‘R’ and ‘R1’ away from herself, her dismissal from service was lawful. In the appellant’s statement to the police on 12/6/2003 admitted as Exhibit ‘H’ concerning Exhibits ‘R’ and ‘R1’ she said she typed the original posting of 17th July, 2002 and sent it to the Director for signature. Exhibits ‘R’ and ‘R1’ carry 5th July, 2002 and 23rd July, 2002 respectively thereby suggesting that she did not type the said Exhibits which goes to the allegation of fake appointment letters. She however admitted writing and typing the names of Akaninyene M. Ekpenyong, Oku Essien Okpo, Florence A. Ikpeme and Mary Essien Okpo which are indicated on a letter dated 14th November, 2002 to the treasurer of Obanliku Local Government council, Mrs. Comfort Idagba for the payment of salaries without the consent of the Local Government Service Commission, Calabar. It is contained in her statement of 24th July, 2003 marked Exh. ‘H 111’. Two of the names, Oku Essien okpo and Mary Essien Oko also appear in Exh. ‘G’ which she wrote to Mr. Ngaji on 6th May requesting him to send their record of Service and last Pay Certificate, Mr. Ngaji however refused to oblige her. Mrs. Bernadette Archibong noticed that her signature had been forged on the letters of appointments, postings and authorization of payment of salaries and she then alerted the Chairman of the Local Government Service Commission.
There was clear evidence of culpability by the appellant in what she did and explanation she gave is untenable. Learned counsel for the Respondents rightly submitted that the act of the Appellant in forging letters of appointment was not only against the deep interest of the respondents, it was of a grave and weighty character bordering on dishonesty and falsification of official documents as to the confidence which the Local Government Service Commission reposed in her. It is an act of serious misconduct which entitled the respondents to dismiss her from service.
I find that there is no merit in the appeal and I accordingly dismiss it. I affirm the judgment of E.E. Ita, J. delivered on 21st July, 2008 in Suit No.HC/511/03.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my brother Kumai Bayang Akaahs, JCA. I am in complete agreement with the reasons given in it and the conclusion reached.
It is to be noted that a party appearing before an administrative tribunal is entitled to be heard. The apex court had made it clear in BABA v. N.C.A.T.C. (1991) 5 NWLR (pt.192) 388 in the following words at pages 427-428.
“An administrative tribunal is not bound to follow the procedure and practice of the court of law, that although it is bound to observe and comply with the principles of natural justice, that a person who would be adversely affected by its decision is entitled to e given adequate opportunity not only to know the case against him but also to answer it. However, he is not entitled to oral hearing unless such a hearing is expressly prescribed. The absence of oral hearing or an opportunity to be heard before an administrative tribunal does not necessarily tantamount to a denial of natural justice.”
It is to be noted that the appellant was dismissed on criminal charges without being arraigned before ordinary court. However there was a clear evidence of culpability of the appellant in what she did and she had no good explanation for the same. For this and the other reasons as given in the lead judgment I find no merit in this appeal and I dismiss it. The judgment of the lower court is hereby affirmed.
NWALI SYLVESTER NGWATU, J.C.A.: I read before now the lead judgment just delivered by my learned brother Akaahs, JCA and I agree with the incisive reasoning and conclusion reached. Learned Counsel for the Respondents was being charitable when he said that the act of the appellant bordered on dishonesty and falsification of official document. The appellant was dishonest and falsified official document. She shamelessly betrayed the trust reposed on her by her employers – Her dismissal by her employers.
I agree that the appeal has no merit and consequently I also dismiss and affirm the judgment of the lower court.
Appearances
Chris O.C. Ogbogu with JackFor Appellant
AND
I.E. Ikona, DDCL, Cross River StateFor Respondent
