IHEUKWUMERE EGESI v. SECONDARY EDUCATION MANAGEMENT BOARD (SEMB) & ORS
(2014)LCN/7596(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/OW/174/2010
RATIO
LABOUR LAW: EMPLOYMENT WITH STATUTORY FLAVOUR; WHETHER A PERSON HOLDING AN OFFICE WITH STATUTORY FLAVOUR ENJOYS A SPECIAL STATUS OVER AND ABOVE THE ORDINARY MASTER/SERVANT RELATIONSHIP
In the case of University of Ilorin Vs Abe (2003) FWLR (Pt.164) it was held:
“It is now firmly established by a long line of decided cases by the apex Court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by statute or regulation made there under, a person holding that office enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be strictly complied with”.
See also New Nigerian Newspapers Ltd. Vs Atoyebi (2013) LPELR – 21489 (CA), See also Nnadi Vs National Ear Care Centre & Another (2014) LPELR – 22910 (CA), where we held:
“I do not think that in an employment with statutory flavour a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st Respondent in this case, in complete disregard of the procedures stipulated in the conditions of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously quarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice (usually, one month) or salary in lieu of the notice. To remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destablize the security of tenure of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society. This, of course, does not include tenure of service in political appointments. See the case of NBTE V. Anyanwu (2005) All FWLR (Pt. 256) 1266; Kwara State Polytechnic, Ilorin V. Shittu (2013) 17 WRN 87; (2012) LPELR-9843 (CA); Olaniyan V. University of Lagos (2001) FWLR (Pt. 56) 778. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FOLAYEMI OLABISI OHO Justice of The Court of Appeal of Nigeria
Between
IHEUKWUMERE EGESI Appellant(s)
AND
1. SECONDARY EDUCATION MANAGEMENT BOARD (SEMB)
2. THE HON. COMMISSIONER FOR EDUCATION, IMO STATE
3. THE HON. ATTORNEY-GENERAL & COMM. FOR JUSTICE Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Imo State High Court in Suit NO.HOW/247/2004, delivered by Hon. Justice Duroha Igwe, on 3/5/2007, whereof the trial Court dismissed the claims of the Plaintiff (Appellant herein). The claim of the Plaintiff was declaratory in nature, namely:
“(1) A declaration that the inclusion of the name of Plaintiff as No.30 at page 9 of the Government white paper on the report of the Panel to investigate illegal employment in the Secondary Education Management Board from 1999 to May, 2003 is wrongful, void and of no effect.
(2) A declaration that the Plaintiff is still an Administrative Officer II on Grade Level of step 2 in the Imo State Secondary Education Management Board and as such he is entitled to all his salaries, allowances and/or emoluments.
(3) A declaration that the purported dismissal of the appointment of the Plaintiff as contained in the letter reference IM/SEMB/NT/11108/1/89 of 15/6/04 is wrongful, void and of no effect.
(4) Injunction restraining the Defendants, their agents, servants from preventing the Plaintiff from performing the functions and duties of his office or interfering with the enjoyment of his right, privileges and benefits attached to his office.
(5) An Order compelling the defendants, to restore the Plaintiff to his post and office and to all the rights and privileges and benefits attached to his office”.
(See paragraph 23 of the statement of claim filed on 6/7/2004 (pages 6 and 7 of the Records of Appeal).
A brief facts of the case at the Court below showed that the 2nd Defendant (Honourable Commissioner for Education, Imo State) on 3/9/03, inaugurated a panel of 5 Persons to investigate what it called illegal employment in the 1st Defendant from 1999 to 2003. The Plaintiff had taken a study leave, without pay, in 1987 for 4 years at the University of Calabar and returned in 1992 for reinstatement. He was told there was embargo on employment that, he should wait for the embargo to be lifted. He waited till 7/8/2003, when the 1st Defendant reinstated him on salary grade level 08 step 2. The Panel inaugurated by the 2nd defendant, however, included his name in their report, as one of those illegally employed and recommended his dismissal.
The Plaintiff said he was never invited for questioning by the Panel, and could not have been invited, because he was employed in 1984 and reinstated after his study leave on 7/8/2003, which period was outside the investigation by the Panel. The 2nd defendant accepted the recommendation of its Panel and dismissed him on 15/6/2004. The Respondents maintained that Appellant was purportedly granted study leave by the 1st Defendant for 4 years in 1990, with retrospective effect from 1987, contrary to the circular on study leave; that the study leave expired in 1991 but Appellant did not return to work and did not apply for reinstatement, until 17/2/2003, as per Exhibit H; that the Board of the 1st Defendant (Appellant’s employer) rejected Appellant’s application for reinstatement (Exhibit G), but the Secretary of the Board of 1st Defendant, subsequently, re-instated Appellant, as per Exhibit C.
Respondents argued that the Edict establishing the Board of the 1st Defendant did not give the Executive Secretary the power to re-instate officers. The trial Court gave judgment in favour of the Defendants (Respondents herein), and dismissed Applicant’s claims.
Appellant filed this appeal on 3/7/2007 and raised twelve (12) grounds of appeal, as per pages 162 to 168 of the Records of Appeal, transmitted to this Court. Appellant filed his Brief of arguments on 15/7/10 and distilled three (3) issues for determination, as follows:
(1) Whether the 1st and 2nd Defendants are at liberty to terminate the employment of the Plaintiff without recourse to the Provisions of the Civil Service Rules, relating to termination of employment and without giving (sic) him any hearing (Grounds 1, 3, 4, 8, 9, 12)
(2) Whether due process was (sic) followed in the re-instatement of the Plaintiff via Exhibit C, to render the said reinstatement null and void and of no effect. (Grounds 2, 5, 6, 7)
(3) Whether the Administrative Panel set up by the 2nd defendant on the 3rd September 2003 to specifically investigate illegal employments in the 1st Defendant from 1999 to May 2003 was right in indicting the Appellant, whose employment was in 1984 and reinstatement in August 2003, which period does not come within the said period. (Grounds 10 and 11).
The Respondents filed their Brief of arguments on 02/11/2012 and the same was deemed duly filed on 19/3/13. They also distilled 3 issues for determination, similar to those of the Appellant, except for semantics. They were:
(1) Whether the 1st and 2nd Respondents terminated the employment of the Plaintiff/Appellant without giving him fair hearing and without recourse to the provisions of the Law and Civil Service Rules.
(2) Whether due process was not followed by the Executive Secretary of the 1st Respondent in reinstating the Appellant by virtue of Exhibit C, to render the reinstatement null, void and without effect.
(3) Whether the Administrative Panel was right in considering the case of the Appellant and made recommendations concerning his employment.”
When this case was heard on 30/10/14, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.
Arguing the Appeal, U.C. Osuji Esq for Appellant, submitted that the 1st and 2nd Defendants (Respondents) had no power to terminate the employment of the Plaintiff (Appellant) without recourse to the provisions of the Civil Service Rules and without giving him any hearing. He relied on Chapter 4 of the Imo State Civil Service Rules, on disciplinary Procedure, Section 1 paragraph 04102. He also relied on Rules 04107 and 04107 (i) to (XVIII) on steps and procedure to be adopted before an officer can be dismissed, which include notification in writing of the grounds on which the dismissal is proposed, and the officer should file a defence to the allegations, if any, and if any person is called upon to give evidence, the Officer shall be entitled to cross examine the witness, and no documentary evidence shall be raised against the Officer, unless he had been, previously, supplied with a copy.
Counsel submitted that none of the above procedures was followed in this case; that Appellant was not even aware that he was being investigated! He relied on page 47 of the Records of Appeal and on the case of E.P. Viderima vs. Rivers State Civil Service Commission (2001) FWLR (Pt.42) 200 at 205, where it was held:
“… the insistence that the appropriate authority should comply with the Civil Service Rules before dismissing a Civil Servant is not just for its own sake. It is to ensure that such civil servant gets fair hearing as commanded by the Constitution.”
Counsel submitted that Appellant’s employment was one with statutory flavour and that to end his appointment strict compliance with the statute must be followed. He relied on the case of Fakuade vs. Obafemi Awolowo University Teaching Hospital (1993) 5 NWLR (Pt.291) 47; Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Sluttabey vs. Fed. Public Service Commission (1981) 1 SC 40, Olamiyan vs. University of Lagos (1985) 2 NWLR (Pt.34) 162; Haruna vs. University of Agriculture, Makurdi (2008) ALL FWLR (Pt.304) 432, 465-466.
On Issue 2, Counsel submitted that the reinstatement of Appellant in August 2003 was proper and followed due process; that the trial Court had found as a fact that Appellant proceeded on study leave with approval, as per Exhibit A; that the Court also found, as a fact that the Defence averred that there was a general reinstatement of Officers by the 1st Respondent in 1990, 1991 and 1992, but that the Appellant did not apply then; but that since there was no evidence on that, it went to no issue. Thus, Appellant submitted, that Appellant’s evidence on the point, that he applied for reinstatement and was told to wait, was unchallenged and uncontroverted and should have been relied upon by the trial Court; that the trial Court was wrong to say that the Appellant did not apply for reinstatement until 17/2/2003, via Exhibit H. Even then, Counsel submitted that the trial Court was wrong to uphold the termination of appellant’s employment as it did, considering the fact that Exhibit C, issued by the Executive Secretary of the 1st Respondent, reinstating him, with effect from 7/8/03. Counsel also relied on the Exhibit D – a reply to letter by Appellant for adjustment of his salary, which was refused by the 1st Respondent on the excuse that:
“From 1992 to 7th August, 2003, the Plaintiff has been awaiting reinstatement and the period is considered as leave of absence.”(Page 98 of the Records).
Counsel submitted that with the above admission, the issue of whether the Appellant applied, timeously, for reinstatement or not, no longer existed. Counsel pointed out that when the 1st Respondent issue Exhibit G to refuse reinstatement of the Appellant, he Appellant protested through his Counsel, and the Executive secretary (1st Respondent) reconsidered their earlier position and wrote Exhibit C to reinstate the Appellant. Thus, he said the Exhibit G was issued in error; that the 1st Respondent had a duty to prove that the Executive Secretary did not have authority to issue Exhibit C or that he took upon himself to review a matter already considered and concluded by the Board of the 1st Respondent, without authority, permission or direction; that the Respondents did not discharge that burden. He relied on page 91 of the Records which disclosed the powers of the Executive Secretary and his functions.
Counsel wondered, since the Executive secretary of the 1st Respondent was also its chief Executive Officer and accounting officer and kept the records of proceedings of the Board of the 1st Respondent, whether that did not vest prima facie validity on all his actions, until the contrary was proved! He urged us to invoke that presumption and hold that Exhibit C was duly issued.
On Issue 3, Appellant’s Counsel submitted that the dismissal of the Appellant on 15/4/04, through the report of the Administrative Panel, was wrongful and unlawful, especially as Appellant’s case did not fall within their terms of reference (period of consideration for the Administrative Panel); that Appellant was employed in November 1984 and confirmed in 1985. He relied on the Government white paper page 1 thereof (Exhibit E) – pages 99 to 100 of the Records.
He submitted that the Panel went outside its terms of reference to include the Appellant in its recommendation on page 30 of the Report – See Page 108 of the Records of Appeal. Counsel urged us to hold that, that was ultra vires the powers of the Administrative Panel and so the recommendation relating to Appellant was null and void. He relied on the case of Madukolu vs. Nkemdilim (1962) ALL NLR 587; Skenconsult Nig Ltd vs. Ukey (1981) 1 SC 6; RSGN vs. Specialist Konsult (2005) ALL FWLR (Pt.254) 875 at 899.
He urged us to allow the appeal and set aside the judgment of the lower Court and enter judgment for the Appellant, as plaintiff in the Court below.
The Respondents’ Counsel, E.L. Aguta (Mrs), on issue 1, took us through the law establishing and loading the 1st Respondent with functions (sections 3 and 6 and 37 of Imo State Secondary Education Management Board Edict, No.3 of 1989). She submitted that, by virtue of these provisions, especially section 6 (a), 1st and 2nd Respondents had power to terminate the employment of the Appellant; that section 6 (b) of the law empowers the 1st Respondent to employ and that the law is trite that, whoever has the power to employ, can also dismiss. She relied on the interpretation law, Cap 66 Laws of Eastern Nigeria, 1963. She submitted that, contrary to Appellants’ argument, the Civil Service Commission was not the employer of the Appellant and so the Civil Service Rules would not apply to Appellant’s case. Counsel, however, submitted that chapter 15 Rule 15111 of the Civil Service Rules, of 31/12/79 provides that:
“An officer or employee may be granted by the Government, special leave without salary for the purpose of undertaking a course of study which is considered likely material to enhance his value to Government. Such leave will be subject to such conditions as may be specified in chapter 13 Rule 13113”.
Counsel added that, that same provision is contained in Public Service Rules, revised to January 1986; that Appellant’s study leave was subject to conditions as per Exhibit J, on page 160 of the Records; that by that circular letter, any officer who proceeded on study leave without permission would be taken as having abandoned the employment, and risked dismissal, but where leave was granted but the officer failed to return at the expiration of the study leave, he will have the appointment terminated, automatically.
Counsel submitted that Appellant had abandoned his job when he proceeded on study leave without first getting approval; that he lost his employment when he did not return immediately after the expiration of the purported study leave granted by his employer, contrary to the rules, and did not tender any application for reinstatement between 1991 and January 2003.
RESOLUTION OF ISSUES
I do not think the Respondents’ Counsel properly appreciated the issue one and/or was really arguing the issue. While saying that 1st Respondent was the employer of the Appellant, not the Civil Service Commission, she however relied on the Civil Service Rules and Public Service Rules, on the Provisions for study leave to Civil Servants (which she admitted Appellant was one). Also while arguing that Appellant went on study leave without first obtaining approval, she also argued that the Appellant failed to return to his job at the expiration of the study leave, granted to him and that he failed to apply for reinstatement! (See page 6 of the Respondents’ brief).
She was approbating and reprobating at the same time, or blowing hot and cold. That is an evidence of confusion, and shows that the Respondents had nothing to present to Counter the assertion/claims of the Appellant. Of Course, the learned trial Court, on page 85 of the Records (judgment), had found as a fact that Appellant, in fact, applied for study leave, without pay and the application was approved by the 1st Respondent. Exhibit A was the application for study leave. The trial Court held:
“So plaintiff was right and truthful when he said that he proceeded on study leave with the approval of 1st Defendant. Under cross-examination and after viewing Exhibit A, DW1, the only witness called by defence conceded that plaintiff had approval to proceed on study leave. From Exhibit A, plaintiff should have resumed or reported back to his employer in 1991 or 1992, if the period of National Youths Service is taken into account”.
The Court further held:
“An officer cannot be said to have abandoned his appointment, if he has approval to absent himself from duties”.
But on the issue of application for re-instatement, the Court said:
“From the above evidence plaintiff on completion of his studies and National Youths Service reported back to 1st Defendant and also wrote to that effect. The crux of the matter hinges on this piece of evidence. Apart from Exhibit ‘H’ dated 17-02-03, plaintiff tendered no other letter or application for reinstatement. If there were other letters, plaintiff would have tendered them… Sadly, or do I say curiously he did not. On the other hand as I had earlier observed, defence denied granting any study leave at all in their pleadings… However, in their paragraph 10 the (Defendants) averred that there was general re-instatement of officers by the 1st Defendant in 1990, 1991 and 1992 but that the plaintiff did not apply for re-instatement within this period… Defence led no evidence in support of this position or averment so it goes to no issue. So all I have before me is Exhibit ‘A’ which was written by plaintiff on 17/2/03. What was the plaintiff doing from 1991 or 1992 to 2003 – a period of 11-12 years? Where was he and why did he not apply for re-instatement? I am satisfied and I believe as a fact that the only application for re-instatement made by Plaintiff was Exhibit H dated 17-02-03… Plaintiff abandoned his employment”.
I think that was a very washy and confused reasoning by the learned trial judge, after holding based on evidence, that:
“… Plaintiff on completion of his studies and National Youth Service, reported back to 1st Defendant and also wrote to that effect”.
The Court allowed the Defendants’ confused position (which the Court even overruled), to mislead it to wander from its earlier correct findings, into absurdities and perversity, when it used Exhibit H as the only basis of determining that Appellant applied for reinstatement.
There was evidence, even from the Respondents in Exhibit D (when 1st Respondent replied to Appellant’s request for salary adjustment). They said:
“I am directed to refer to your above captioned letter dated 16th March, 2004 and to inform you that: From 1992 to 7th August, 2003 you have been “awaiting re-instatement” and the period is considered as leave of absence since the Board re-instated you. Leave of absence does not attract neither salary nor increment or promotion. Being outside the School System for over 11 years, you have no counter parts in Secondary Education Management Board. The year of your appointment or graduation cannot be used as the only reason for salary adjustment… on re-instatement Secondary Education Board placed you on salary Grade level 08, step 2 which is the correct placement”. (Emphasis mine). See page 97 of the Records.
The above letter, among other things, admitted that Appellant was duly re-instated by the Board after his application for reinstatement, which was affirmed by Exhibit A.
In Exhibit A, Appellant had stated:
“Since graduation, I have applied for a re-instatement over seven times, but my applications never saw the light of the day, not to talk of entering your office. They could not even be traced in any register…” (See page 152 of the Records).
Of Course, the 1st Respondent never disputed the above evidence by the Appellant, either at the trial or when it issued the ‘Approval for Reinstatement’ to the Appellant on 12/8/2003 (Exhibit C), which stated at (page 96 of the Records):
“I am directed to refer to your letter dated 17th February, 2003 on the above subject and to inform you that the Executive Secretary has approved your re-instatement into Imo State School System. You are hereby re-instated”.
The conditions of the reinstatement are…
A) Effective date: August, 7th 2003
B) Rank: Administrative Officer II
C) Salary Placement: Salary Grade Level 08, step 2.
D) Deployment:… Secondary Education Management Board Owerri Zone”
After such clear documentary evidence, supported by the unchallenged oral evidence of the Appellant on his re-instatement, after waiting for many years for the same, it is therefore strange and perverse, in my opinion, for the lower Court to hold that Appellant abandoned his job for 11-12 years before applying for re-instatement on 17/2/2003, after it had held that:
“Plaintiff on completion of his studies and National Youths Service reported back to 1st Defendant and also wrote to that effect”.
I therefore resolve the issue one for the Appellant.
The issue two appears to have been taken care of in the resolution of the issue one, having acknowledged that the 1st Respondent wrote to the Appellant in Exhibits C and D (Reinstatement letter and reply to request for adjustment of salary respectively) to formally reinstate him to service, with effect from 7/8/03 and after having admitted that Appellant had awaited the reinstatement from 1992 to August 2003.
The Respondents made a feeble argument that the Executive Secretary of the 1st Respondent, who wrote the Exhibit C, to reinstate the Appellant, had no power to do so. Of course, the burden was on the Respondents to establish absence of vires in the act of the Executive Secretary; that he had no lawful authority to issue the letter of reinstatement. See sections 132 and 133 of the Evidence Act, 2011, on whom the burden of proof lies in civil cases; that he who asserts the existence of a thing has the onus to prove it. See also Blessed Innoma Ext. Nig. Ltd. And Anor Vs Union Bank of Nig. Plc (2013) LPELR – 21234 CA; Jack Vs Comm. Of Police, Rivers State & Ors (2013) LPELR – 2286 (CA), and CPC VS INEC & ORS (2011) LPELR – 8257 (SC) where the Supreme Court re-stated the law:
“whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist…”
Of course, there is presumption of regularity and validity of Exhibit C, that it was duly issued, with authority. By section 168 of the Evidence Act 2011:
“(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”.
(2) When it is shown that a person acted in a public capacity, it is presented that he had been duly appointed and was entitled so to act”.
Exhibit C, issued by K.C. Njoku, for the Executive Secretary of the 1st Respondent, enjoyed such presumption, especially as the Respondents had admitted that the letter was issued by the Executive Secretary of the 1st Respondent. The Exhibit D, also issued by the Executive Secretary, in April 2004 (it was signed by V. Ikwagwu (Mrs) for the Executive Secretary) further confirmed the regularity and validity of the Exhibit C – (Appellant’s reinstatement) when it stated (in paragraph 2):
“From 1992 to 7th August, 2003 you have been “awaiting reinstatement” and the period is considered a leave of Absence Since the Board reinstated you…” (Emphasis mine)
That shows that Appellant’s reinstatement was the decision of the Board of the 1st Respondent! The Respondents were therefore not sincere, when they struggled to disown the Exhibit C, claiming that the Executive Secretary acted without lawful authority of the Board of the 1st Respondent. What did they do to the Executive Secretary, if he acted without the authority of the Board, and who else was authorized to communicate the official decision of the Board of the 1st Respondent to the Appellant or to the public, if not the Executive Secretary?
The Respondents did not supply any answer to the above posers and could not have, since, the law establishing the 1st Respondent had stated that the Executive Secretary of the Board shall:
“(a) Keep record of the proceeding of the Board
(b) be the chief accounting officer of the Board
(c) perform such other duties as the Board may from time to time assign to him”.
See section 14 of the Edict No.3 of 1989, which established the 1st Respondent. (page 90 of the Records of Appeal).
That simply excludes any document or evidence from any quarters, outside that of the Executive Secretary of the 1st Respondent, on issues of decisions or reports purporting to be that of the Board of the 1st Respondent! The Respondents had tried to place premium on Exhibit G, which was earlier issued by the same Executive Secretary on 3/4/2003 and signed for him by the same K.C. Njoku, declining to reinstate the Appellant on the ground that he abandoned his appointment for some 12 years. (See page 151 of the Records).
It is difficult to understand why the learned trial Court, would rather have respect for Exhibit G (which had been superseded by Exhibit C, after a reconsideration of Appellant’s appeal) and the two documents were signed by the same person for the Executive Secretary! What made the Court to believe the Respondents’, that Exhibit G remained the Board decision and that Exhibit C was issued without the Board’s authority?
The sole witness of the Respondents at the trial, had under cross examination, said:
“I can see it now”, (when it was put to him that: “After Exhibit G was written, Plaintiff protested and his application was reconsidered and Exhibit C written to him”) See page 59 of the Records.
The learned trial Court should have made use of that clear evidence to hold that the Exhibit C remained the only proper and valid decision of the 1st Respondent on the reinstatement of the Appellant. I therefore resolve the issue 2 for Appellant.
Did the Administrative panel, set up by the 2nd Defendant, have any power to consider the case of the Appellant and to indict him?
It is noteworthy that the assignment given to the Administrative Panel spanned 1999 to May 2003; that is, to investigate illegal employment in the 1st Defendant from 1999 to May 2003. There was no where the Appellant’s case could have come within the competence of the said Administrative Panel for consideration, in the circumstances of this case. It is note worthy that:
1) The panel was to investigate cases of illegal employment in the 1st Respondent (whatever that meant!). Of course, Appellant’s employment was not illegal and could not have been a subject of the panel’s investigation, since the Respondents never questioned how the Appellant was employed in 1984.
2) The Panel was to consider employments within 1999 to May 2003. On the face of it, that sounds like a cloak for political mischief or witch hunting. Why 1999 to 2003 – a 4 year term of given political regime? One prays the politicians who succeed their opponents in office do not use such pretences of administrative investigation to undermine or try to nullify decisions taken by their predecessors in office, just to satisfy narrow political or private interests of political actors!
Appellant’s case clearly fell outside the catchment of the terms of reference given to the Administrative Panel, being 1999 to May 2003. Evidence, even by the Respondents, showed that Appellant was employed on 10th November, 1984 and the employment was confirmed in 1985, after which Appellant continued to serve until 1987, when he was granted approval to go on study leave, without pay, and he returned in 1992, after his National Youths’ Service, for reinstatement, but was kept waiting for same, until August, 2003! The Administrative Panel, therefore, had no powers over the Appellant, to consider his case. It was therefore acting ultra vires, when it recommended the Appellant as No: 30 on its list for dismissal.
The purported letter of dismissal of the Appellant issued to him on 15/6/2004 based on the purported Report of the said Administrative Panel, or based on the allegation that Appellant had abandoned his employment was therefore null and void, and without effect whatsoever.
Appellant’s emloyment, being a Civil Servant, was regulated by the Civil Service Rules on issues of discipline/termination of his employment. See Section 1 paragraph 04102 and 04107 (1) (xviii) of the Imo State Civil Service Rules. It should also be appreciated that being a Civil Servant, Appellant’s employment was insured with statutory flavour, and so his dismissal, or termination of his employment could not be at the whims and caprices of any mischievous, disgruntled officer of government or panel, without due compliance with the relevant laws/rules regulating his condition of service. See the case of Kwara State Poly vs Saliu (2012) 41 WRN 26, where it was held:
“In employment with statutory flavour, that is, employment governed by statute… the procedure for employment and dismissal of employees are clearly spelt out and the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination, inconsistent with the statute is null and void (2005) All FWLR (Pt.253) 773 at 787 … Such is applicable in contract of employment under the Public and Civil Service of the Federation, states, Local Government and agencies of Government…”
In the case of University of Ilorin Vs Abe (2003) FWLR (Pt.164) it was held:
“It is now firmly established by a long line of decided cases by the apex Court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by statute or regulation made there under, a person holding that office enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be strictly complied with”.
See also New Nigerian Newspapers Ltd. Vs Atoyebi (2013) LPELR – 21489 (CA), See also Nnadi Vs National Ear Care Centre & Another (2014) LPELR – 22910 (CA), where we held:
“I do not think that in an employment with statutory flavour a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st Respondent in this case, in complete disregard of the procedures stipulated in the conditions of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously quarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice (usually, one month) or salary in lieu of the notice. To remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destablize the security of tenure of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society. This, of course, does not include tenure of service in political appointments. See the case of NBTE V. Anyanwu (2005) All FWLR (Pt. 256) 1266; Kwara State Polytechnic, Ilorin V. Shittu (2013) 17 WRN 87; (2012) LPELR-9843 (CA); Olaniyan V. University of Lagos (2001) FWLR (Pt. 56) 778.
I therefore resolve this issue too for the Appellant, and on the whole, hold that the appeal is meritorious and is allowed. I hereby set aside the decision of the trial Court in the suit No. HOW/247/2004, and instead, enter the judgment which the learned trial Court ought to have made in the case, Appellant (as plaintiff) having established that he was wrongly dismissed from service. It is therefore hereby declared, pursuant to section 15 of the Court of Appeal Act. 2004, that:
(1) The dismissal of the Appellant from service, as per the letter of dismissal Ref. IM/SEMB/NI/1108/1/59 of 15/6/04 was wrongful, null and void, as the Administrative Panel of the 2nd Respondent had no powers over him (Appellant).
(2) Appellant is still in the service of the 1st Respondent and entitled to all his rights, entitlements including his salaries and allowances, and other entitlements, of his office/posting.
The Respondents shall pay the cost of this Appeal, assessed at Fifty Thousand Naira (50,000.00) only, to the Appellant.
PETER OLABISI IGE, J.C.A.: I have read in advance the illuminating judgment of my Lord MBABA, JCA just delivered.
I agree with the said Judgment including the Order relating to costs contained therein.
FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned Brother, Ita G. Mbaba, JCA in this Appeal. I agree with his reasoning and conclusions that the Appeal deserves to succeed and it is accordingly allowed in view of the wrongful nature that the issues relating to the dismissal of the Appellant from service was carried out with little or no regard to the dictates of due process.
I too will set aside the judgment of the learned trial Judge in suit No. HOW/247/2004 and invoke the powers of this Court conferred by virtue of section 15 of the Court of Appeal Act 2004 in ordering the re-instatement of the Appellant to his position as Staff without loss of seniority, remunerations and/or other prerequisites of office.
Appearances
U.C. Osuji Esq.For Appellant
AND
E.C. Aguta (Mrs) DLD, MOJ, OwerriFor Respondent
