JAMES A. IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012)

JAMES A. IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS

(2012)LCN/5315(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of April, 2012

CA/J/203/2005

RATIO

FAIR HEARING: RIGHT OF FAIR HEARING

The right of fair-hearing is a fundamental right conferred on every citizen in Nigeria and is entrenched in the Constitution of the Federal Republic of Nigeria, 1979. (See Section 33 applicable at the time of this suit). Any breach of that right vitiates the proceedings (including the decision based on it) where it occurs and renders both the proceedings and decision taken, as null and void. And any decision taken/given, without compliance with that provision of the constitution becomes a nullity and liable to be set aside. see Adigun vs A.G. Oyo state (1987) 1NWLR (pt. 53) 678, Military Gov. Of Imo State Vs Nwauwa (1997) 2 NWLR (pt. 490, and Okafor v. Action congress Anambra State (1991) 6 NWLR (pt.200) 659 at 678. PER MOHAMMED LADAN TSAMIYA, J.C.A.

FAIR HEARING: IMPORTANT ESSENTIAL OF FAIR HEARING

One important essential of fair-hearing is that the party involved must have an equal opportunity of being heard in addition to the adjudicator ensuring that he is acting fairly at all times. see: Adigun vs Action Congress Oyo state (supra).

See Okoye v. Central Bank Of Nigeria (1989) 1 NWLR (Pt.98) 419. PER MOHAMMED LADAN TSAMIYA, J.C.A.

PLEADINGS: BINDINGNESS OF PLEADINGS

It is settled law that parties are bound by their pleadings and that where a party fails to lead evidence in support of an averment contained in the pleadings such averment (s) will be taken as having been abandoned. See F.C.D.A. Vs Naibi (1990) 3 NWLR (pt.390) 380 at 427, and Esigbe v. Agholor (1990) 1 NWLR (pt 161) 234 at 248 paragraph thereof. PER MOHAMMED LADAN TSAMIYA, J.C.A.

EVIDENCE: BURDEN OF PROOF WHERE THERE IS AN ALLEGATION

The law is that, he who alleges must prove his case. This principle of law is true because it is the plaintiffs (or prosecution) that is asserting that a wrong has been done against him by the defendant.

See Sections 135,136,137 and 138 of the evidence Act. PER MOHAMMED LADAN TSAMIYA, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ALI ABUKAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

JAMES A. IKUMA Appellant(s)

AND

1. CIVIL SERVICE COMMISSION BENUE STATE
2. THE HON. ATTORNEY – GENERAL AND COMMISSONER OF JUSTICE BENUE STATE
3. PANEL ON RECOVERY OF PUBLIC FUNDS AND PROPERTY, BENUE STATE Respondent(s)

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the high Court of Justice sitting in Makurdi Judicial Division of Benue State in Suit No: MHC/99/1998 dated 15/02/2005, dismissing the suit.
The plaintiff (herein referred to as the appellant) until his dismissal was a staff of the State Ministry of information, youths and sports. He was duly employed in 1980 as clerical Assistant then rose to the rank of senior personnel assistant on grade level 07/1 in 1991. Within this period, his appointment was confirmed and was made permanent and pensionable. In 1996 he was issued with a query to answer some criminal allegations against him involving financial irregularities. He answered the query denying the allegations. He was suspended from service in 1996 and finally, in May 1998 he received a letter, dismissing him from service. Consequently, he filed this action claiming the following reliefs as contained in paragraph 28 of his amended statement of claim.
a. “A declaration that the suspension and subsequent dismissal of the plaintiff’s confirmed and pensionable appointment from the Benue State civil service by the first defendant vide letter Ref: No:09719/S/VOL. 1/6 dated 25th March 1998 is unlawful, contrary to the rules of natural Justice, null and void and of no effect whatsoever.
b. A declaration that the plaintiff is still a staff in the service of Benue State Government and is entitled to his full remuneration and all other entitlements up to and from the date of suspension and dismissal to the date of judgment of this Honourable Court.
c. An order of injunction restraining the defendants by themselves, agents, officers, servants or staff from interfering or preventing the plaintiff from performing the functions of his office, duties or enjoyment of the rights, privileges and benefits attached to the said office.
d. An order directing/compelling the first and second defendants to reinstate or restore the plaintiff to his post and or office with all the rights, privileges and benefits attached thereto.
e. An order setting aside the purported letters of suspension and dismissal afore stated including the directive that the plaintiff should refund the sum of N117, 207.13 or any part thereof to the Benue State Government.
f. An order of injunction restraining the third defendant from recovering the said sum of N117, 207.13 from the plaintiff and/or embarrassing, arresting, detaining or further inviting him in connection with the refund of the sum of N177,207.13 as contained in the letter of dismissal under reference.
ALTERNATIVELY
The plaintiff claims against the defendants jointly and severally the sum of N1.5M (One Million Five Hundred Thousand Naira only) being special, general and aggravated damages for unlawful dismissal, harassment and embarrassment.”
See pages 60 – 61 of the record of this appeal.
At the trial, the plaintiff gave evidence for himself and called no other witness while the defendants called only one witness as DW1. In his judgment the trial judge dismissed the suit in its entirety as having no merits.
Dissatisfied, the Appellant appealed to this Court with a notice of appeal containing six (6) grounds of appeal.
In the appellant’s brief of argument prepared by Mr. G.H. Usongo, Esq, four issues were raised from the six grounds of appeal for determination of this Court. This issues are as follows:-
1. “Whether the appellant was accorded/afforded fair hearing by the 1st respondent as required by law before his dismissal from service.
2. Whether the respondents, particularly the 1st respondent complied with the provisions of the Benue State Civil Service Rules before dismissing the Appellant from service.
3. Whether the respondents discharged the burden of proof concerning the criminal allegation of embezzlement of public funds/criminal miss-appropriation as required by law before the trial Court.
4. Whether the decision of the trial Court dismissing the case of the appellant before it can be justified having regard to the weight of evidence before it.”
The respondents adopted the above issues in their joint respondents’ brief of argument prepared by P.O. Ahemba Esq. On 20/02/2012 when hearing this appeal, learned counsel for the respective parties having identified their respective briefs of arguments adopted same.
In his brief of argument, learned counsel for the Appellant, Chief Agbo urged this Court to allow the appeal. The argument he advanced on issue No 1 is hinged on the fair hearing. He contended that the Appellant was not given fair- hearing as required by Section 33 (1) of the 1979 Constitution of Nigeria before his dismissal from the service.
He further contended that the 1st respondent did not formally initiate any disciplinary action against the appellant before his dismissal. Also no written complaint against was served on the appellant by the 1st respondent neither was he given opportunity to cross-examine his accuser, Furthermore, the Director of personnel’s panel Constituted by the Ministry of information was tainted by Bias due to its composition, in the sense that one of the panel members was the appellant’s accuser. That panel, therefore, cannot be said to be fair and just or in line with the said provisions of the Constitution of Nigeria 1979. He urged this Court to declare the purported dismissal based on the purported investigation conducted in breach of appellant’s right to fair hearing, null and void and of no effect whatsoever.
In response, learned counsel for the respondents, Ahemba, Esquire submitted that the appellant was afforded fair-hearing as required by law before his dismissal, On issue of bias, he submitted that this issue was raised in paragraph 17 of the Appellant’s amended statement of claim but during the trial the Appellant did not adduce any evidence of Bias against the alleged accuser in the person of the Director of finance and supply of any other staff of the Ministry. As such this issue was abandoned. He finally urged this Court to resolve this issue in favour of respondents.
Having stated in brief the submissions of both Counsel to the parties to this case the main complaint of Appellant under this issue No.1 is on fair-hearing to which he contended that it was not given to him before his dismissal from service.
The right of fair-hearing is a fundamental right conferred on every citizen in Nigeria and is entrenched in the Constitution of the Federal Republic of Nigeria, 1979. (See Section 33 applicable at the time of this suit). Any breach of that right vitiates the proceedings (including the decision based on it) where it occurs and renders both the proceedings and decision taken, as null and void. And any decision taken/given, without compliance with that provision of the constitution becomes a nullity and liable to be set aside. see Adigun vs A.G. Oyo state (1987) 1NWLR (pt. 53) 678, Military Gov. Of Imo State Vs Nwauwa (1997) 2 NWLR (pt. 490, and Okafor v. Action congress Anambra State (1991) 6 NWLR (pt.200) 659 at 678.

It follows, therefore, that a trial or hearing of any matter wherein any of the parties is refused a hearing or is denied the opportunity of being heard, or presenting his case through his witness or other means of evidence, cannot be said to be fair. It should be noted that in considering the right of fair-hearing its other basic attributes must be borne in mind. Apart from the injunction that the adjudicate must hear both sides, he must also give equal opportunity and consideration, to all parties and of course in every material aspect of the case, Justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See Okoye v. Central Bank Of Nigeria (1989) 1 NWLR (Pt.98) 419.
Now as to what the appellant is complaining of, learned counsel for the appellant submitted that no written complaint against the appellant was served on him by the 1st respondent, and Appellant was not given an opportunity to cross-examine his accusers and infact the 1st respondent did not initiate or participate in the disciplinary process leading to the dismissal of the Appellant, He further submitted that the panel Constituted by the ministry of information was tainted by Bias due to its composition as one of the members was the Appellant’s accuser. It is settled law that before an employer can dispense with the service of his employee under the common law all he needs to do is to afford the employee an opportunity of being heard before exercising his power of dismissal even where the allegation for which the employee is being dismissed involves accusation of crime.

In the instance, the record shows that a report was made to the Honourable Commissioner for Information that the appellant and other staff of the finance Department of the Ministry were engaged in financial irregularities involving inflation of salaries and over-time allowances. Consequently a preliminary investigation was ordered and infact, carried out and the appellant was found involved. However, a team of Auditors from the Auditor General’s Office were invited to conduct full investigation into the matter with a view to determine the extent of involvement of each staff in the allegation. The appellant was invited and appeared before both the panel carrying out the preliminary investigation as well as the team of Auditors from the Auditor General’s Office. On the appellant’s appearance he was informed of the allegation against him and he defended himself. Subsequently on the submission of the respective reports of the investigation, the appellant was issued with a query on 16/05/1998 informing him of the allegation and the findings against him. The appellant answered the query in which he denied any involvement, But by Exhibits 7 and 8 it was shown that appellant admitted the guilt. The appellant finally was dismissed.
From the above facts, the query was issued to the appellant, on 16/05/1996 (Exhibit 3,) and his answer to the query is Exhibit 4.
Also in the appellant’s evidence under cross-examination, he admitted that he was invited by the Director Personnel Management who told him of the allegation against him. He also said he denied the allegation. He also admitted appearing before the team of Auditors who questioned him on the allegation and in reply he said he denied any knowledge of fraud involving overtime inflation. It was that same allegation that was contained in the query issued to him.
I wish to point out that the query issued to the appellant was sufficient notice of complaint against him. The important thing required of the respondents, by the rules of natural Justice and the provisions of Section 33(1) of the Constitution of Nigeria 1979 applicable to the matter, is to convey to the appellant the allegation/accusation made against him. And this was done through the query issued to the appellant and as such one can say that the requirements of natural Justice were sufficiently complied with in the present case. There is, therefore no question as to the fact that the appellant was not given adequate notice of the allegation against him or opportunity to present his defence before the two panels. The appellant’s complaint on the fair hearing is baseless and lacks merits.
The learned counsel for the appellant contended that the panel Constituted by the Ministry of Information was tainted by Bias due to its composition since the officer who accused the Appellant was a member of such panel, hence sitting on appeal over his own decision. That the decision of the said panel cannot be said to be fair and just or in line with the provision of the 1979 Constitution particularly Section 33 thereof.
Issue of Bias was raised in paragraph 17 of the Amended statement of claim. At the trial, there was no where the appellant did adduce any evidence of Bias against the said Director of finance and supply or any other official of the ministry. It is settled law that parties are bound by their pleadings and that where a party fails to lead evidence in support of an averment contained in the pleadings such averment (s) will be taken as having been abandoned. See F.C.D.A. Vs Naibi (1990) 3 NWLR (pt.390) 380 at 427, and Esigbe v. Agholor (1990) 1 NWLR (pt 161) 234 at 248 paragraph thereof. The issue of Bias in my view was abandoned and that is why the trial court did not make any decision on it.
On the whole this issue No.1 is hereby resolved against the appellant and in favour of the respondents.

This takes me to issue No.2. In this issue the complaint of the Appellant is that the respondents, particularly, the 1st respondent did not comply with the provisions of the Benue State Civil Service Rules before dismissing the appellant from service, and this has occasioned a grave miscarriage of Justice. The appellant described the provisions not complied with as Sections 167 (i- iii) and (iv), and also Section 191 of the same Rules. He submitted that failure by the respondents to comply with the above mandatory provisions of the Rules have vitiated the dismissal of the appellant. He urged this court to resolve this issue in favour of the appellant and allow this appeal on this issue.
In response, the respondents contended that for the appellant to have the benefit of the said rules, he is expected not only to plead his appointment but also the terms or condition of service contained therein that Constitutes the basis for the foundation of the action, and in this case the appellant failed to plead and prove the applicability of the said Benue State Civil Service Rules, He also failed to plead and prove that any of the rules were breached by the respondents, therefore the Appellant’s reference to those Sections 167 ( i – iii) and (iv) and 191 (i) of the said Rules and the arguments therein go to no issue and ought to be discountenanced.
The respondents further submitted that having not pleaded or canvassed the points raised under this issue No:2 in the trial Court, and the Learned trial judge made no pronouncement on them. Therefore those issues raised become fresh issues. And to competently raise such issues by the Appellant at this stage the appellant requires the leave of this court, which leave the appellant neither applied for nor obtained. The case of Onowhosa Vs Odiuzuo (1991) 1 SCNJ 13 at 21.
The appellant seeks herein, for this court to vitiate his dismissal on the grounds of non-compliance with the provisions of Section 167 (i) (ii) (iii) and (iv) as well as Section 191 (1) of the Benue State Civil Service Rules. Where a plaintiff is seeking a declaration that his dismissal from Service is wrong and therefore a nullity for non-compliance with the Civil Service Rules, he must plead and prove his appointment, as well as the conditions of Service contained therein which constitutes the basis for the foundation of his action.
It is not in doubt that the appellant was in the Benue State Civil Service from where he was dismissed. It is also not in doubt that there is in existence Benue State Civil Service Rules. But for the Appellant to have the benefit of the said rules, he must not only plead his appointment but also the terms or conditions of Service contained therein. It is the principle of law that in action for declaration that dismissal is null and void, as in this case, the plaintiff must plead and prove the terms and conditions of appointment. See NITEL VS OSADIN (1999) 8 NWLR (pt.616) 528 at 341 and 544. Where the pleadings and evidence of the plaintiff fall short of the standard set out above it is fatal to the plaintiff case.

I have carefully read the facts pleaded by the Appellant and the evidence lead. The Appellant failed to plead and prove the applicability of the said Benue State Civil Service Rules. He also failed to plead and prove that any of the rules were breached by the Respondents. The Appellant’s pleadings and evidence therefore fall short of the above standard and his reference to these stated Sections and the arguments therein go to no issue and is discountenanced.
These points raised under issue No.2, were not pronounced upon by the Learned trial Judge, Having not pleaded or canvassed in the lower Court this Court will not generally allow them to be raised as they are fresh issues for which leave of this court is required. See Adediran v. Interland (1991) 12 SCNJ 27 at 40 line 10 -20.
In the final analysis on this issue, it is resolved against the appellant.

On issue No.3 for resolution the complaint of the appellant hinged on the fact that the respondent did not discharge the burden of proof in criminal cases to justify the decision of the trial Court. He contended that the allegation of embezzlement of public fund against him was not proved beyond reasonable doubt before the trial court as required by law. Based on this, the Appellant urged this Court to allow the appeal.
In his response, the respondents through their Counsel submitted that the appellant was not tried for any criminal offence by the trial Court and therefore they were under no duty to prove the case beyond reasonable doubt as canvassed by the appellant in his brief. They further submitted that the appellant’s argument alleging lack of proof beyond reasonable doubt or denial of right to cross examine his accusers are grossly misconceived and should be discountenanced.
From the facts and evidence of this case as shown in the record, it is clear that the dismissal of the appellant was based on administrative processes and not based on a trial or conviction by a Court of law, Administrative panel or Tribunal established.
Consequently the respondents, the 1st respondent in particular, is not bound by the Evidence Act, Section 138(1), as that Section applies to judicial proceedings in or before a Court of Law. See Section 1(2) of the evidence Act.
In consideration of these facts I must agree with the contention of the respondents that since the appellant was not tried for any criminal offence before or by the trial court, the respondents were not bound or under any duty to prove the case beyond reasonable doubt.

Moreover, the appellants’ case before the trial court was not for judicial review of the action of the 1st respondent nor for the quashing of the Administrative decision and it reports i.e. Exhibits 7 and 8 respectively. The arguments of the appellant therefore is misconceived.
In the final analysis on this issue No.3, it is resolved in favour of the respondents.

The final of the appellant’s issues is issue No 4. The complaint of the appellant under this is that the decision of the trial court, dismissing his suit, cannot be justified having regard to the weight of evidence before it. His contention is that his evidence before the trial Court was positive and sufficient to warrant verdict in his favour, but the trial Court failed to consider the weight of the evidence of the parties before arriving at its decision. He added that the decision reached by the trial Court was on an issue not established before it thus resulting to miscarriage of Justice on his side.
The respondent, in response to this, submitted that the trial court appraised and evaluated the evidence before it and made a finding which formed the basis of its judgment. That the judgement is supported by evidence of the respondents.
The law is that, he who alleges must prove his case. This principle of law is true because it is the plaintiffs (or prosecution) that is asserting that a wrong has been done against him by the defendant.
See Sections 135,136,137 and 138 of the evidence Act.

In the present case, the appellant seeks for courts declaration that his dismissal from service was illegal, null and void and of no effect. It therefore behoved him to adduce credible evidence in court before the declaration can be made in his favour. Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.

As I said above I have carefully read the facts pleaded by the appellant and the evidence therein. These fall short of the above standard. The Learned trial Judge therefore was right to hold that the appellant’s case lacks merit. The appellant having not established his case against the respondents which dismissed him from service he is not entitled to the reliefs he sought. This issue No.4 is therefore resolved in favour of the respondents. Having resolved all the four issues in favour of the respondents and against the appellant, the appeal lacks merit and must therefore be dismissed and is hereby dismissed. I make no order as to costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Tsamiya, JCA. I fully agree with the reasons and conclusions so ably set out therein. I adopt them as mine and do not have anything more to add.
I too dismiss this appeal and would also not make order for costs.

UCHECHUKWU ONYEMENAM, J.C.A.: Having had the opportunity before today of reading the lead judgment of my learned brother Mohammed Ladan Tsamiya, JCA which has just been delivered, I entirely agree with the conclusions that this appeal lacks merit and must be dismissed.
In commenting, I restate the general rule that a Plaintiff succeeds on the strength of his case and not on the weakness of the defence. In cases of termination of appointment, the claimant who seeks declaration that the termination of his appointment was wrongful has the onus to prove the terms and conditions of his employment. It is not in principle for the employer who is a defendant to an action brought by the employee to prove this. See Nigeria Gas co. Ltd. v. Dudusola (2005) 18 NWLR (pt. 957) 292.

In the instant appeal, the Appellant’s main grouse is that the Respondents, particularly the 1st Respondent did not comply with the provisions of the Benue State Civil Service Rules before dismissing him from service. The Appellant emphasized that Sections 167 (i- iv) and 191 of the said Rules were not followed which occasioned a grave miscarriage of justice. Based on this the Appellant urged on the court to allow the appeal.
In line with the response of the Respondents, I find nothing in the record to show that the Appellant either pleaded or tendered evidence to show the terms and conditions of his service. No effort howbeit unsuccessful was made by the Appellant to prove the application of Benue State Civil Service Rules to him. The Appellant merely swam in the ocean of the presumption that being employed by the Respondents the Court would without any evidence placed before it join him in speculations. Not only that the Court has no jurisdiction to conjecture or surmise as a court of law must circumscribe itself to the evidence before it and give judgment on the evidence alone. Olalomi Ing. Ltd. v. N.I.D.B. Ltd (2009) 16 NWLR (Pt.1167) 266; Ejezie v. Anuwu (2008) All FWLR (Pt.422) 1005 at 1017.

Adequate facts to establish that the Appellant was subject to Benue State Civil Service Rules were of necessity bound to be placed before the Court. This is inescapable since the Court is forbidden to infer the nature or rules of service that govern the Appellant’s employment. It requires evidential proof. C.B.N v. The Appellant having failed to establish that the mandatory provisions of Sections 167 (i – iv) and 191 of the Benue State civil service Rules were applicable to him, the court did the inevitable obvious which was to hold that he was rightly dismissed.
For the above and the more detailed reasons set out in the lead judgment, I too dismiss this appeal. I abide by the order as to costs.

Appearances

CHIEF S.O. AGBO E.N. (WITH E.N. TIONSHIA)For Appellant

AND

P.O.AHEMBA (D.C.L.) WITH M.E. OCHENGELE (PSCI)For Respondent