ENGR. EMMANUEL KENNETH UZOR V. THE HONOURABLE MINISTER OF WORKS HOUSING AND URBAN DEVELOPMENT & ANOR (2013)

ENGR. EMMANUEL KENNETH UZOR V. THE HONOURABLE MINISTER OF WORKS HOUSING AND URBAN DEVELOPMENT & ANOR

(2013)LCN/6322(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2013

CA/E/341/2010

JUSTICES

A.J. ABDUL-KADIR (PRESIDING JUSTICE) Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

ENGR. EMMANUEL KENNETH UZOR – Appellant(s)

AND

1. THE HONOURABLE MINISTER OF WORKS HOUSING AND URBAN DEVELOPMENT

2. FEDERAL CIVIL SERVICE COMMISSION – Respondent(s)

RATIO

THE PRIMARY DUTY TO SHOW FOR AN APPLICATION FOR THE COMMITTAL OF A PERSON FOR CONTEMPT ON THE GROUND OF DISOBEDIENCE OF COURT ORDER

In an application for the committal of a person for contempt on the ground of disobedience of court order, the primary duty to show that the person has disobeyed the order of court lies on the applicant who is asserting or alleging such disobedience. The standard of proof required to discharge this primary duty is the standard of proof in criminal cases. This is because an application to commit a person for contempt (civil or criminal) is in the nature of a criminal charge and the rules relating to criminal cases are therefore equally applicable to proceedings for committal of a person for contempt. See ABBAS & ORS V. SOLOMON & ORS (2001) 7 SC (pt 11) 45 per Iguh JSC. As this court held in FCDA & ANOR V. KORIPAMO – AGARY (2010) LPELR 4148 per Peter-Odili JCA (as she then was) “an application for committal for any disobedience of order of Court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject.” This court in this same case described proceedings for the committal of a person for contempt as a criminal or quasi-criminal proceeding. This court again in OBATULA & ORS v. WILKEY & ORS (2007) LPELR 4187 held per Okoro JCA that “proof beyond reasonable doubt is the standard of proof that is demanded in criminal matters, and a trial for contempt of court is in the nature of a criminal trial and the onus is therefore on the applicant in contempt proceedings to prove the guilt of the respondent beyond reasonable doubt.” This court referred to the cases of GREMA V. JANYUN (2001) 6 NWLR (pt 709) 414 and ALESINLOYE V. OYEDIRAN (1999) 12 NWLR (pt 631) 481 wherein it was held that “a contempt proceedings for disobedience of court order is quasi criminal and the standard of proof required is not that on a balance of probabilities but proof beyond reasonable doubt the liberty of the person(s) being at stake.” PER AGIM, J.C.A.

THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT

This decision is, clearly, not the result of a proper consideration of the totality of the affidavit evidence of all the parties. There is no doubt that a proper consideration of the evidence as it relates to the issue being tried entails a review and evaluation of the evidence thereon. The review and evaluation of the affidavit evidence on the point entails reference to the specific paragraphs of the affidavits of both sides containing evidence on the point, appraise and assess their probative value and expressly decide the point on the basis of these assessment. As this court held in ONWUGBELU V. EZEBUO & ORS (unreported judgment in CA/E/56/2009 delivered on 21-2-2013), “evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence the Court has a duty to consider the relation between the evidence and the issue as well as the probative value of such evidence. This will involve a thorough appraisal, analysis and assessment of the evidence that will logically result in a conclusion of Law or an inference of fact. See AWUSE V. ODILI (2005) 16 NWLR (pt. 952) 416 at 506. Evaluation of evidence provides or explains the factual basis of the reasoning or decision of the Court. It demonstrates the relationship or connection between the decision and the evidence before the Court. It helps an understanding of how the Court arrived at its conclusions on the facts. It is an indicator of whether the trial Court dispassionately considered and gave due regard to every admitted evidence before it.” PER AGIM, J.C.A.

WHETHER OR NOT IT IS EVERY ERROR THAT CAN CAUSE A MISCARRIAGE OF JUSTICE

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 3rd of October, 2002, the Federal High Court, sitting at Enugu per C.M.A Olatoregun J. rendered judgment in suit No. FHC/EN/CS/11/89 in favour of the appellant herein, as plaintiff therein ordering that:

1. “the continued suspension of the plaintiff is unlawful, null and void.

2. the plaintiff is to be reinstated without any loss of seniority and/or benefits.

3. the 3rd Defendant is directed to pay to the plaintiff all his legitimate claims and entitlements withheld by the 1st to 3rd Defendants prior to the plaintiff’s suspension from duty.

4. the plaintiff’s monthly Salary of N5,800.00 per month from October 1996 to February 1999 – N127.000.00 and from 1998 to today that is the date of this judgment is awarded to him. Such payments to take into consideration the various Federal Government Salary increases to date.

5. the plaintiff’s Leave Bonus from 1995 – 1998 at the rate of N4,500.00 per annum = N18,000.00 and from 1999 till this year that is the year of this Judgment is also awarded to him. Such payment to reflect the various Federal Government increases in Annual Leave Bonus.

6. Outstanding Receipts Incurred in the Maintenance of the Federal Highways in Benue State by the plaintiff = N70,000.00 is also awarded to him.

7. the sum of N100,000.00 (One Hundred Thousand Naira) is awarded as General Damages for the uncertainty and suffering which the plaintiff suffered in the last six years while he remained on suspension.

8. this shall be the judgment of this court.”

On the 20th November, 2006 the appellant filed a motion on notice praying for an order committing the respondents to prison for contempt of court for disobeying some of the orders of the trial Federal High Court made on 3rd October, 2002.

In the affidavits in support of the application and in the affidavits in opposition of the application, both sides agree that the respondents complied with the judgment and order of the court but disagreed on whether the respondents complied with orders 2 and 3 that the appellant be reinstated to his employment without any loss of seniority and/or benefits and that all his claims and entitlements withheld by the 1st to 3rd respondents prior to the appellant’s suspension from duty be paid to him. After considering all the affidavits filed and the written addresses by both sides, the trial Federal High Court per A. Abdul-Kafarati J held that the respondents had fully complied with the said orders of the court by reinstating the appellant to his employment and paid him all allowances and benefits. The trial court then dismissed the application for committal. Dissatisfied with this decision of the trial court, the appellant on the 18th November, 2010 filed a notice of appeal commencing this appeal No. CA/E/341/2010 on two grounds. The appeal was brought out of time with leave of court obtained in CA/E/208M/2009. Both sides have filed, exchanged and adopted their briefs of argument in this appeal. The briefs are the appellant’s brief, 1st respondents’ brief and appellant’s reply brief. The appellant in his brief of argument raised the following issues for determination.

1. Was the court below right in holding that the orders of court complained about by the Appellant in this appeal have been complied with by the respondents?

2. Did the court below properly consider the Appellant’s affidavit evidence and bundle of documents on his reinstatement with loss of seniority and/or benefits and failure to pay all legitimate claims and entitlements withheld by the respondents?

The 1st respondent in its brief, formulated, in other words, the same issues for determination as follows:

1. Was the court below right in holding that the orders of Honourable Justice OLATOREGUN complained about by the Appellant in this appeal have been complied with by the Respondents?

2. Whether or not the court below properly considered the affidavit evidence and bundle of documents at his disposal before arriving at the decision to dismiss the motion for committal.

I adopt the issues formulated by the appellant and will determine this appeal on the basis of those issues.

Let me start with the issue of whether the trial court was right in holding that the respondents had complied with the orders that the appellant be reinstated to his employment without any loss of seniority and/her benefits and be paid his withheld claims and entitlements.

Learned Senior Advocate for the appellant has argued that the trial court was wrong in holding that –

(i) “the said orders 2 and 3 were complied with by the respondents

(ii) the said orders did not say that the respondents were to place him on grade level 17 or a particular grade level.

(iii) because the appellant was reinstated to his employment and promoted to grade level 15, the respondents had complied with the order of court.”

The Learned Senior Advocate further submitted that –

(i) “The respondents failed to fully comply with paragraph 3 of the order of court to pay the plaintiff all his legitimate claims and entitlements withheld by the respondents by not properly placing the appellant on grade level 17 with effect from 1st January, 2005. The Appellant having lost his seniority and/or benefits, he also lost all his legitimate claims and entitlements withheld by the respondents prior to the appellant’s suspension from duty.”

(ii) “The affidavit evidence and the documentary exhibits filed by the appellant in support of his motion for committal shows that the respondents have not complied with paragraph 2 of the drawn up order having been reinstated with loss of seniority and/or benefits, the appellant has lost his legitimate claims and entitlements withheld by the respondents prior to the appellant’s suspension, the respondents thereby failing to fully comply with paragraph 3 of the drawn up order of court.” (sic)

Learned Counsel for the respondents has argued replicando that –

(i) The trial court was right in holding that the said orders were complied with by the respondents.

(ii) In compliance with the said orders, the appellant was reinstated and promoted from Assistant Chief Engineer on Grade Level 13 to an Assistant Director on Grade Level 15 with effect from January 2011;

(iii) The appellant was given double promotion so as to bring him to the same level with his mates

(iv) Backdating the effective date of promotion to January, 2001, was to ensure that the appellant does not lose his seniority.

(v) The appellant was paid all arrears of salaries, allowances/benefits to the tune of N9,000,000

(vi) The counter-affidavit to the affidavit in support of the motion for committal, the affidavit of proof of compliance by 1st respondent with the judgment of the trial court, and the counter-affidavit in opposition to the warrant to arrest Alhaji Usmanu Baffa establish the above facts and prove compliance with the said orders.

Learned Counsel for the respondents further submitted that –

(i) the procedure and requirements for appointment, promotion and discipline in the Federal Civil Service is regulated by the Public Service Rules and that promotion in the Federal Civil Service is not automatic but is dependent upon fulfillment of the criteria of availability of vacancy, completion of APER form, freedom from disciplinary, proceedings, passing of promotion examination, certification of good conduct and “seniority and maturity for promotion.”

(ii) The order that the appellant be reinstated without loss of seniority did not require or mean that he be promoted in disregard of the due process of law or that his case be treated outside the Public Service Rules and therefore that he be placed over and above even his seniors and irrespective of availability of vacancy.

The Learned Senior Advocate in the appellant’s reply brief, replying to the above arguments of Learned Counsel for the respondent argued that –

(i) The respondents delayed compliance with the said orders and the entire judgment till 18th October, 2004 and thereby deprived the appellant the opportunity of continuing his career progression earlier.

(ii) “If the respondents had recalled the appellant using his career progression chart, the appellant would have been on Grade level 16 by 1st January, 2001 as against Grade level 15 in 1st January, 2005. The implication is that by 2001 the appellant is duly placed on Grade Level 17.”

(iii) “The Submission of 2nd Respondent that the intention of Honourable Justice Olatoregun when he made the order was that the Respondent should place the appellant on appropriate grade level that will not unsettle the civil service as well as overreach, injure or work hardship on his erstwhile colleagues is a total misconception of the judgment of the lower court. To impute such intention is to discredit the unambiguous order of the trial court as to reinstating the Appellant without loss of seniority.”

(iv) “Furthermore, the submission of the 2nd Respondent that there is only one vacancy for grade level 17 which is already occupied is not applicable in this case. The court did not recognize such situation when the order was made. Even if there was no vacancy, and the court has made an order that the Appellant be placed on that level, invariably such order must be strictly complied with.

(v) “At the court below, the Respondent did not lead any evidence to the fact stated above to show that the grade level the appellant was placed is the same with his colleagues who were employed at the same time with him. The 1st and 2nd Respondents are statutory bodies that deal with records, such records would have shown the year appellant was employed with his other colleagues in the same cadre.

It is obvious from the arguments of both Counsel above that it is necessary to start the determination of this issue with a statement on the burden and standard of proof on parties in a proceeding for committal for contempt of court on ground of disobedience of order of court.

The evidence required to satisfy this standard include the following. The order alleged to have been disobeyed. This will show the existence of such an order and the terms of the order. It is from the terms of the order that it can be shown how and in what respect it has been disobeyed. This court in OBATULA & ORS V. WILKEY & ORS (supra) held that, “an applicant for committal proceeding must exhibit the order of court flouted by the respondent, because a judgment sought to be enforced by committal proceedings must contain a positive order, which can be a subject of a breach to warrant the proceedings. Secondly, there must be evidence of service on the respondent of the said order, a notice of consequences of disobedience of order of court (form 48) and notice to show cause why an order of committal should not be made against the person (form 49) to show that the respondent was given the opportunity to obey or retrace his steps in the disobedience of the court order. See NWOSU & ORS V. NZEADIBE (2010) LPELR 4897. Order IX Rule 13 Judgments (Enforcement) Rules Cap 407 Laws of the Federation 1990 make this requirement of service of the form 48 and 49 mandatory. As this court held in OJEME V. MOMODU II (1998) 6 NWLR (pt. 403) 583 at 597, this is “to ensure that a person being deprived of his liberty in respect of an order of judgment made in a civil litigation deliberately intended to flout the order of court. Furthermore, the law and its rules are made to ensure that, that person is given an opportunity to retrace his steps by service on him of Forms 48 and 49. If he remains recalcitrant, then the court will descend on him and commit him to prison.”

Thirdly it must be stated by the applicant in his affidavit that the person ordered to do a particular thing has not done that thing or refused to do it even after being served with the order, a notice of consequences of disobedience of order of court (form 48) and notice to show cause why order of committal should not be made against him (form 49). Evidence of all the above facts is sufficient to establish a prima facie case against the respondent or contemnor requiring him or her to adduce evidence to show that he has obeyed the order or explain why he has not obeyed the order. So once the applicant has discharged the primary duty to show that the respondents have not obeyed the said order, the evidential burden shifts to the respondent to show that he has obeyed the order or explain the reason for the failure or refusal to obey the order. As held by the Supreme Court in ABBAS & ORS V. SOLOMON & ORS (supra) and this court in a long line of cases an application to commit a person for contempt is in the nature of a criminal charge and the rules relating to criminal cases equally apply to proceedings for committal of a person for contempt. Therefore S. 135 of the 2011 Evidence Act prescribing the burden and standard of proof and when it shifts in criminal cases apply to proceedings for committal for contempt. As earlier stated herein, the primary burden is on the applicant to prove beyond reasonable doubt the disobedience of the order of court. By virtue of S. 135 (3) if the applicant proves the alleged disobedience of the Court order beyond reasonable doubt, the burden that shifts to the respondent is to prove reasonable doubt. By virtue of S.137 of the 2011 Evidence Act that the burden to prove reasonable doubt shall be discharged on the balance of probabilities.

Now, let me find out if the appellant discharged his primary burden to prove that the respondents have disobeyed the said orders Nos 2 and 3 in the judgment of the trial court. It is clear from the entire tenor of the appellant’s case that the disobedience alleged is that the respondents reinstated the appellant with loss of seniority and benefits in that they reinstated the appellant and placed him on salary grade level 15 instead of salary grade level 17. The primary burden was therefore on the appellant to prove that the reinstatement and placement of the appellant on salary grade level 15 amounted to reinstatement with loss of seniority and benefits contrary to the said orders named above.

It is important to recall that the basis of the appellant’s application at the beginning, as the facts in the affidavit in support of the motion for committal show, is that the respondents have refused to obey the entire judgment of 3rd October, 2002 of the trial court. This is clearly stated in the ground for the application in the motion paper and paragraphs 8 to 12 of the affidavit in support of the motion on notice for committal. It was the counter-affidavit and further and better counter-affidavit of the 5th respondent and other affidavits of the 1st respondent that exposed the facts that the respondents had recalled and reinstated the appellant to his employment placing him on salary grade level 15 in their belief that they have thereby complied with the judgment of the trial court particularly the Order that the appellant be reinstated without loss of seniority and benefits. Following this exposure by the respondents, the appellant changed the grounds of his application admitting that the judgment had been complied with but contended that his reinstatement had compromised his seniority and deprived him of benefits that would have accrued from the seniority that he lost and so it is not a reinstatement without loss of seniority or benefit as ordered by the judgment. He contended specifically that orders 2 and 3 in the judgment have not been complied with. The above pattern of the case as presented by the appellant has influenced my approach to the consideration of the evidence in this case in the determination of the question of whether the appellant discharged the primary burden of proving beyond reasonable doubt that the respondents disobeyed the said Orders 2 and 3 in the judgment. So that instead of first considering the evidence of the appellant to find out if he discharged the burden to prove the alleged disobedience beyond reasonable doubt before considering the evidence of the respondent to find out if it established reasonable doubt, I will consider the totality of the evidence together.

The respondents led evidence to show that they have reinstated the appellant to his employment. Such evidence is contained in paragraphs 10-13 of the 2nd respondents counter-affidavit deposed to on 7 -12-2006. The appellant in paragraph 3 of his further affidavit deposed to on 16-4-2007 admitted this fact but stated that “I have been reinstated to duty, but in a manner that compromised my seniority position contrary to the order of the Honourable court. I have been placed on salary Grade Level 13 which I attained on 1st January, 1991 more than 16 years ago.” This fact of reinstatement is also deposed to by the 1st respondent in paragraphs 5, 6(a) and 7 of its counter-affidavit sworn on 30-4-2007. It is also deposed to by Alhaji Baffa Usman in his counter-affidavit opposing the warrant of his arrest sworn on 16-5-2007 and his affidavit in proof of compliance with the judgment of the trial court sworn on 4-6-2007.

The letter of recall from suspension dated 18th October, 2004 which is annexed to the 1st and 2nd respondents’ counter-affidavits reads thus –

“I am directed to inform you that the commission at its meeting held on Tuesday 7th September, 2004 considered your appeal, and the various courts Chief Magistrate Court, Federal High Court and Court of Appeal judgment on your case and approved that you be recalled from suspension with effect from 7th October, 1996, being the date you were suspended from work and all your entitlements should be paid by the Ministry of works. You are therefore, by this letter recalled from suspension with effect from 7th October, 1996 and advised to report to duty on receipt of this letter.”

The 2nd respondent subsequently wrote to the appellant upgrading him to a rank it considered equal to that then held by his mates. The letter dated 28th November, 2006 and annexed to the further affidavit of the appellant of 16-4-2007 reads thus –

“Further to our letter Ref. No. FCSC/LUA/3/99/221 of 18th October, 2004, I am directed to inform you that the Commission has considered your appeal and the various courts’ judgments on your case and approved your proper placement to the post of Assistant Director (Engineering), SGL. 15 with effect from 1st January, 2001, being the date your colleagues were promoted to the grade, and all your entitlements arising from this decision should be paid by your Ministry. Notice to this effect will be published in the Federal Government Official Gazette shortly.”

The 1st respondent in paragraphs 8- 10- of its counter-affidavit in opposition to the affidavit in support of the motion for committal stated that by this proper placement the appellant has not lost any seniority in service. For ease of reference I reproduce herein the exact depositions in those paragraphs as follows –

8. “That the 5th Respondent has approved the placement of the Applicant to the post of Assistant Director (Engineering), SGL. 15 with effect from the 1st of January, 2001, being the date his colleagues were promoted to the grade. Now shown to me and annexed hereto as Exhibit “FMW6” is a copy of the 5th Respondent’s letter dated the 28th of November, 2006 which conveyed the approval to the Applicant.

9. That the Applicant has not lost his seniority in the service by his proper placement to the post of Assistant Director.

10. That the extant rule on promotion from one post to another in the Federal Civil Service is predicated on the following:

(a) Attending an interview and writing a promotion examination.

(b) Success at the promotion examination, and

11. That it is only one person that can be promoted to the post of Director at any material time and there is presently a substantive Director in the Highways Department of the 1st Respondent Ministry.

12. That the Applicant’s immediate past Acting Director, Engr. A.O. Ahiaba who is Senior to him professionally and in the service is a Deputy Director on SGL. 16.

13. That the payments made to the Applicant as shown in Exhibits “FMW5a” and “FMW5b” and his proper placement by the 5th Respondent as shown in Exhibit “FMW6″ have been done by the 1st Respondent in utmost deference to the Judgment and Order of the Honourable Court.”

Alhaji Baffa Usmanu, the 1st respondent’s director of Administration and supplies in paragraph 5(b) of his affidavit in proof of compliance with the said orders stated that –

“The Plaintiff/Applicant has been properly placed to the post of Assistant Director, Engineering with his colleagues and cannot be placed to the post of Director Engineering as that would make him to supersede his seniors. Now shown to me and annexed hereto as “Exhibit BU2” is the seniority list of the Highways Engineers in the 1st Respondent ministry which has the Plaintiff/Applicant as No. 23 in his grade.”

I have carefully read the said seniority list which is at pages 242 – 245 of the record of this appeal. It indicates the name of the engineer, his grade level, sex, state of origin, date of birth, date of first appointment, date of present appointment, rank, present posting, date of deployment, age and years in service. The first group of engineers listed under Grade level 16 are ranked DD (deputy director). The second group listed and Grade level 15 are ranked AD (assistant director), I observed that some of the deputy directors have been in service for lesser number of years than some of the assistant directors. Out of the 24 deputy directors 8 had their date of first appointment before 1979, 2 in 1979, 7 in 1980, 2 in 1982, 1 in 1983 and 2 in 1991. The list of 45 assistant directors show that 8 had their first appointment before 1979, 5 in 1979, 3 in 1980, 4 in 1981, 8 in 1982, 6 in 1983, 7 in 1984, 1 in 1988, 1 in 1991, 1 in 1992 and 1 in 1993. I have used 1979 as a reference year because that is the year of first appointment of the appellant. His name is not No. 23 on the list as stated in paragraph 5(b) of the affidavit of Alhaji Baffa Usmanu. It is listed as No. 47 at page 245 of the record of this appeal. 8 of the assistant directors have longer years of service than the appellant. For example Aloba, R.A. No. 45 on the list whose date of first appointment was 1973 was appointed assistant director. On 1-1-2001 Onyeador, O.D. (No. 40 on the list) first appointed on 20-7-1979 and Ekenna VC (No. 41 on the list) first appointed on 6-8-79 were appointed assistant directors on 1-1-2001. The appellant was first appointed on 19-7-1979 was appointed assistant director on 1-1-2001. 7 of those who were appointed assistant directors in 1999 and 2000 were first appointed before 1979, four of such engineers were first appointed in 1979.

It is clear from this list that seniority is reckoned according to salary grade level and rank. Such career progression is based on promotion by the 2nd respondent. This fact is clearly admitted by the appellant in paragraph 5 of his further affidavit sworn on 16-4-2007 at pages 146 – 147 of the record of this appeal. He stated that “It is the Department of Recruitments and Appointments (R&A) in the office of the Defendant/Respondent that deals with career progression as charted in the case of Engineer D.J. Jime, Ref. EC 58995/96, dated 14th July, 1999.” He proceeded to state in paragraph 6 of the same affidavit that it was in compliance with that duty that the said department issued the letter of proper placement of the appellant dated 28th November, 2006, earlier reproduced herein. It is stated in paragraphs 7 and 8 of the Further and Better Counter-Affidavit on behalf of the 2nd respondent that –

“7. That part of the conditions precedent to the promotion of an officer in the public service as contained in the guidelines on appointment, promotion and discipline are:

(a) availability of vacancy;

(b) Satisfactory conduct;

(d) Satisfactory performance in examination;

(e) Good behaviour, etc

8. That unless the above conditions, among others, are fulfilled, an officer may not be eligible to attend promotion examination.”

This evidence is not challenged or controverted by the appellant in his further Affidavit wherein he responded to and denied some of the paragraphs of the said further and better counter-affidavit. The case of the respondents is that the appellant has been properly placed on salary grade level 15 and has not lost his seniority in the service by that placement.

Rule 02106 of the Public Service Rules 2006 provide that “Seniority in any department shall be determined by the entry date/the assumption of duty certified by an authorized officer as reflected in the appropriate registry.” Career progression of staff is not based on seniority alone as is clear from the seniority list mentioned above and even Rule 020701 of the public Service Rules 2006 which state that-

(f) “Except where powers of appointment or promotion have been delegated, no promotion shall become effective until they have been approved by the Federal Civil Service Commission.

(g) All officers who fall within the field of selection for any promotion exercise shall be considered except those who are under disciplinary action. The minimum number of years that an officer must spend in a post before being considered eligible for promotion shall be as follows:

Grade Level of Staff Number of years in post

01 – 06 Minimum of 2 Years.

07 – 14 Minimum of 3 years.

15 – 17 Minimum of 4 years

(i) In assessing the merit of officers, a clear distinction shall be made between their records of performance or efficiency in lower grades and their potential for promotion, i.e. ability and competence to perform the duties and responsibilities of the higher post efficiently.

(ii) Seniority and previous records of performance will be taken into account in choosing between candidates with equal potential for promotion.

(iii) In all cases, however, a generally satisfactory record of conduct shall also be considered.

(d) The responsibility for the promotion of officers shall be as follows:

(i) G.L. 06 and below – by the Ministry/Extra-Ministerial Office.

(ii) G.L. 07 – 14 -by the Ministry/Extra-Ministerial Office or the relevant staff pool subject to confirmation by Federal Civil Service Commission.

(iii) G.L. 06 and below by the Ministry/Extra-Ministerial Office.

(iv) G.L. 15- 1 7 – by the Federal Civil Service Commission on recommendation from Ministry/Extra-Ministerial Office or the relevant pool routed through the Head of the Civil Service.

All promotions are subject to satisfying minimum requirements declared by Federal Civil Service Commission and availability of vacancies.”

The above explanations of the respondents, in my view raises the presumption that the respondents had obeyed the order of the trial court to reinstate the appellant to his employment without loss of seniority. It is clear that the 2nd respondent has the discretion to promote staff subject to the fulfillment of certain conditions. It has the prerogative to determine the career progression of staff in accordance with certain established criteria. It is clear from the Public Service Rules 2006, the undisputed evidence, particularly the seniority list of engineers in the Ministry and pre-conditions for promotion of staff that career progression is not based only on date of first appointment or number of years of service. The respondents maintain that they promoted the appellant from salary Grade level 13 to salary grade level 15 to enable him be on the same rank with his mates and that to place him on 17 will be put him above his seniors.

In the light of this explanation of the respondents, the appellant will fail to discharge the primary burden to prove that the respondents have disobeyed the said orders unless it rebuts the presumption of obedience that their explanation have given rise to.

The appellant in response to the case of the respondents stated in paragraph 7 of his further affidavit that “my correct grade level should have been S.G.1 17 with effect from 1st January, 2005 in accordance with the order of court, as my subordinate Engr. S.I. Obi as at the date of my suspension at Makurdi is now on SGL 16 since 1st January, 2005.” He further answered in paragraphs 8 and 9 of his said further affidavit that the restoration of his seniority position is not subject to the usual public service conditions for promotion and interview as it is ordered by court. According to him it is a question of compliance with court order and not compliance with public service conditions for promotion and is not derived from promotion interview. He stated in paragraph 18 of his further and better affidavit that “by placement on SGL 15 my seniority has been lost.” He again in paragraph 19 of the said further further and better affidavit stated that “this is a case of advancement and not promotion as laid down by Rules of Service and in recognition of that and the order of court, the said letter of 28/11/2006 was issued. There was no promotion interview, etc, conducted prior to the said letter.”

In view of the established conditions for promotion and the seniority list of Engineers, I do not think that it is right for the appellant to assume that since a former subordinate of his is now on salary grade level 16, then he should be on salary grade level 17. The Public Service Rules and the evidence show that number of years in service or date of first appointment is only one of several requirements for promotion. Some engineers who were first appointed before appellant are appointed promoted to salary grade level 15 on the same date (1st January, 2001) as appellant. Secondly, in view of the clear express words of the said order of the trial court above, the appellant is wrong to insist that he should have been on salary grade level 17 with effect from 1st January, 2005 in accordance with the order of Court. The order that the appellant “be reinstated without any loss of seniority and/or benefits” did not say that he should be placed on a particular grade level.

There is no doubt that the respondents are bound to reinstate the appellant to his employment and are bound to ensure that in reinstating him he does not loss his seniority/or benefits. There is nothing in the said order directing or indicating that the appellant’s reinstatement should not be in accordance with civil service rules or conditions. To be reinstated without loss of seniority in my view means that he should be reinstated to the salary grade level he would ordinarily have been if his career had progressed without the suspension. In other words, that the appellant was entitled to all the promotions that would have been due to him but not for the interruption of the appellant’s career progression by the suspension. The grade level he would ordinarily have been without the suspension can only be determined by reference to the established conditions for promotion, the seniority list of engineers, the career progression chart, annual performance evaluation reports, passing of promotion examinations and interviews and other requirements.

Since the order did not state the salary Grade level he was to be placed, the order left the placement of the appellant on a salary grade level to the discretion of the respondents. It is for the respondents particularly the 2nd respondent to place the appellant on a grade level that will not cause him to loss his seniority. The 2nd respondent who is the competent authority in charge of the appointment, promotion and discipline, and who has direct responsibility for charting the appellant’s career progression has decided that his proper salary grade level is salary grade level 15.

The appellant has not challenged or shown the decision of the respondents in placing him on salary grade level 15 as being contrary to the Public Service Rules or any law. He is not saying that the decision is an improper exercise of a ministerial discretion. He has not shown that his placement on salary grade level 15 amounts to non compliance with the order that he be reinstated without loss of seniority or benefits. The trial court was therefore right to have held that the respondents complied with the said order.

Let me now find out if the respondents complied with the order that the appellant be reinstated without loss of benefits and the order that he be paid all his legitimate claims and entitlements withheld by the respondents prior to his suspension from duty.

The respondent led evidence in paragraph 7(a)-(e) of the counter-affidavit sworn on 30-4 -2007 as follows – “That I am informed by Mr. Joseph Alejo, a Principal Executive Officer in charge of Highways, planning and Design Salary Section on the 27th of April, 2007 at 1.30pm in his office at the Federal Ministry of Works Headquarters, Mabushi, Abuja and believed him of the following:

(a) That the Applicant herein has been drawing his monthly salaries and other entitlements since his reinstatement.

(b) That the Applicant had applied for the payment to him of the arrears of his salary from October, 1996-December 2004 by an application dated the 27th April, 2006. Now shown to me and annexed hereto as Exhibit (FMW3” is a copy of the said application.

(c) That his application was treated and the Budget division of the 1st Respondent Ministry computed his arrears of salary and allowances and arrived at a figure of N2, 937,549.93 (Two Million, Nine Hundred and Thirty Seven Thousand, Five Hundred and Forty-Nine Naira, Ninety Three Kobo) only.

(d) That the Applicant agreed with the computation of his arrears of salary and allowances as stated in paragraph 7(c) above by his acknowledgment dated the 14th of June, 2006. Now shown to me and annexed hereto as Exhibit “FMW4” is a copy of the said acceptance of the computation.

(e) That the computed sum of N2, 937,549.93 (Two Million, Nine Hundred and Thirty-Seven Thousand, Five Hundred and Forty-Nine Naira, Ninety-Three Kobo) only has been paid to the Applicant herein in five (5) installments from July to November 2006. Now shown to me and annexed hereto as Exhibit “FMW5a” and “FMW5b” are copies of the salary card of the Applicant and a summary of payments made to him respectively showing the amount paid in each installment and the total amount paid.”

The appellant responded to the above deposition in paragraphs 7 – 14 of his further, further and better affidavit as follows-

7. “Paragraph 7(a) is partly admitted to the extent that salaries have been paid on Grade Level 13 only up to November 2006. All payments including salaries were stopped with effect from 1st December, 2006 till date by Alhaji Baffa Usmanu, arbitrarily and without justification. This fact was deposed to in paragraph 12 of the further affidavit I deposed to and filed on 16/4/2007 which is before the Honourable court.

8. Paragraph 7(b) is admitted while 7(c) is admitted to the extent that this figure (N2, 937,549.93K) was prepared by the field Headquarters Federal Ministry of Works Makurdi on 4/1/2005 and was sent to Abuja Headquarters for accurate analysis and computation.

9. The Budget Division of the Abuja Headquarters of Ministry of Works & Housing after analysis and proper computation arrived at a figure of (N3,090,354.74K) this figure was shown to me at the budget office via (file No. FMW/ADM/Sup/Bud/01/05) which is a short fall of (N152, 804.81K)

10. Instead of paying me the accurate figure of (N3, 090,354.74K) I was compelled to sign and collect the sum of (N2, 937,549.93K), therefore exhibit FMW4 should be discountenanced by the court. The Respondent should produce the file referenced to paragraph 9 for the Court’s inspection. The Respondent’s exhibit FMW3 will confirm this deposition.

11. In actual fact I am being owed a balance of (N152,804.81) which is the proper figure arrived at by the Budget Division of the Federal Ministry of Works.

12. That I signed Exhibit FMW4 under duress considering the length of time I had waited and the frustration that I had suffered, my application and the recommendation, thereto is annexed as Exhibit G1-5.

13. Paragraph 7(d) is admitted to the extent that the sum of (N2, 937,549.93K) which I signed was under duress as Alhaji Baffa Usmanu made it clear to me that unless I signed it nothing will be paid to me and after considering the financial pressure on me for the past 10 years I had no option but to sign. That does not mean I should forfeit the balance of (N152, 804.81K) in compliance with the Order of court.

14. Paragraph 7(e) is admitted to the extent that the amount paid was short of what the Budget Division calculated by (N152, 804.81K).”

On the 26th July, 2007 both sides in compliance with an earlier order of court that the respondents come on that day to give a situation report of compliance with the orders and Judgment of the court, both sides reported in open court as follows:

Mr. F.I. Bebu on behalf of the 1st respondent reported that –

“We have met as directed. Everything was computed with the active participation of plaintiff. All the outstanding payments were agreed upon and he was duly paid. He acknowledged receipt of the cheque. He is not being owed anything.”

The appellant responded to the above statement thus – “the arrears were paid on the old grade level. What is outstanding is seniority to grade level 17 with effect from 1/1/2005 i.e. for 5th defendant to do.” This response of the appellant is a clear admission that all that was outstanding and due to him was paid to him. Apart from the issue of being restored to his accommodation at Makurdi the only issue he said was outstanding was his placement on salary grade level 17. The trial court clearly understood that this was the position and held that “this matter will be adjourned to enable the parties sort out the following:

1. The issue of proper placement

2. The issue of accommodation. This matter is adjourned to 5/11/2007 for report.”

So as at 26-7-2007, the issue of payment of his benefits and entitlements withheld upon his suspension had been resolved. Both sides had agreed that the same had been fully paid to the appellant. What was left was his proper placement from 1st January, 2005 and the benefits he would have enjoyed or was entitled to if he had been placed on salary grade level 17. I have already held herein that he has not shown that his placement on salary grade level 15 is not proper and is therefore in disobedience of the order of court that he be reinstated without loss of seniority or benefits. The appellant clearly failed to discharge the burden on him to prove beyond reasonable doubt that the respondents disobeyed the said orders of the trial court. In the light of the foregoing I hold that the trial court was right to have held that the respondents complied with the said orders of court. Issue No. 1 is therefore resolved in favour of the respondents.

I will now consider the issue of whether the trial court properly considered the appellant’s affidavit evidence. It is obvious that the ruling of the trial court does not show any reference to specific portions or part of the appellant’s affidavit evidence and documents annexed thereto. There is also no reference to specific portions or part of the respondents’ affidavit evidence and documents annexed thereto. The trial court opened its ruling by listing each of the affidavits and the exhibits filed by each party herein and stating that “the appellant’s contention as per his affidavit evidence and the exhibits attached and the submission of Learned counsel is that he ought to be placed on GL. 16. Having failed to place him on GL. 16 the plaintiff/applicant filed forms 48 and 49 and the motion under consideration for committal to prison of the respondents.” The trial court followed this statement with a recap of the addresses of counsel to all parties. After restating all the addresses, the trial court then said “I have considered the facts of this case as found in the affidavit evidence and the exhibit filed.” It thereupon proceeded to dispose the preliminary point of law raised by the 1st respondent. The point of law was that the application for committal did not comply with Order 9 Rule 13 (2) Judgment Enforcement Rules. The trial court held that there was a clear breach of the said provision and that “since the liberty of individuals is involved, the failure to comply with the rules is fatal to the application to the committal. On this ground the application can be refused.” After this determination of the preliminary point, it proceeded to deal with the merit of the application for committal and said “On the merit of the application for committal, it is observed that the main complaint of the applicant is based on the second leg of the order of court i.e. “the plaintiff is to be reinstated without loss of seniority and/or benefits.” The order did not say the Applicant is to be placed on a particular grade level. From the affidavit of compliance deposed to by Alhaji Usman Baffa with the order of court, it is clear that the Applicant was being reinstated and was promoted to GL. 15. Since the order of court did not say he should be placed on the particular Grade Level, it is my view that the Respondents have complied with the order of court. As earlier said in this ruling the standard required in contempt proceedings is that of beyond reasonable doubt. On the face of the order and affidavit evidence before the court the Respondents have complied. The onus is on the Applicant to prove beyond reasonable doubt that they have not. It is my view that the onus placed on the applicant has not been discharged.”

The question that now arises is whether the decision of the trial court is vitiated by this error. It is trite law as restated by a long line of decisions, that it is not every error in proceedings that vitiates the proceedings and or judgment. Only such error that are substantial or cause miscarriage of justice in the sense that, if the error had not been made the decision could have been different or that if the error is corrected the decision would change. See DAKUR V. DAPAL (1998) 10 NWLR (PT 571) 573 at 586, 588-589. It is for the appellant to show that this error has occasioned a miscarriage of justice. An appeal on the ground of this error will fail if the appellant cannot show convincingly that the error occasioned a miscarriage of justice. The appellant in this appeal has not shown that the error occasioned a miscarriage of justice. In any case it is clear from the determination of issue No. 1 herein, that even if the error had not been made or if the evidence were properly considered on the issue of compliance with the said two orders, the decision would have remained the same. The decision of the trial court is clearly supported by the evidence. In the light of the foregoing, I resolve issue No. 2 in favour of the respondents.

On the whole this appeal fails. I hold that it lacks merit. It is accordingly dismissed. I make no order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read before now a copy of the judgment delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA. I agree with his reasoning and conclusions. I also hold that the appeal lacks merit and is accordingly dismissed. I also make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

Appearances

Dr. Amaechi Nwaiwu SAN with S.C. Enwere Esq, L.O. Unanwo Esq. and C.R. Onwuegbuchulam (Mrs.)For Appellant

AND

Fred Ibhadoborie Osagie Esq., A.M. Liman Esq.For Respondent