NIGERIAN POSTAL SERVICE V. EMAYAK MENDIE
(2011)LCN/4546(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of May, 2011
CA/C/36/2008
RATIO
ADMITTED FACT: WHETHER ADMISSION MADE BY AN ADVERSE PARTY NEED FURTHER PROOF
As rightly submitted by the Respondent citing Section 75 of the Evidence Act and placing reliance on U.B.A. v JARGABA (2007) 5 SCNJ 127 and VEEPEEE IND. LTD V COCOA IND. LTD (2008) 4 SCNJ 482, with the clear admission made by the Appellant, the respondent did not need to prove the fact that his service with the Appellant is governed by the Civil Service Rules; PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN POSTAL SERVICE Appellant(s)
AND
EMAYAK MENDIE Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Olotu J. of the Federal High Court, Uyo delivered on 24/10/2007.
The plaintiff now respondent was employed by the Post and Telecommunication Department which later metamorphosed into Nigerian Postal Service as a Driver/Mechanic on 31/2/80 on Grade Level 04. The letter of employment was admitted in evidence as Exh. ‘A’. He rose to the position of Senior Works Assistant on Grade Level 07 with effect from ‘B’. On 13th March, 1996, the Plaintiff was issued with a query, Exhibit “C”. The substance of the query was that he caused the Defendant Mercedes Benz Lorry with registration No. 5 FBN 26 under his control to knock engine while on official engagement IN Lagos. He was alleged to have had an accident with a live animal and he concealed the accident from the TSO who travelled with him. The plaintiff replied the query vide Exhibit ‘D on 14th March, 1996 denying having an accident with the vehicle. Thereafter he was dismissed from service with effect from 26th April, 1996 via Exh. “E”. He sued and claimed against the Defendant the followings reliefs contained in paragraphs 30 and 30 (a) of the Amended Statement of Claim:-
“30 WHEREFORE the plaintiff claims against the defendant as follows:
1. A declaration that the purported dismissal of the plaintiff by the defendant vide letter No. APM/AKT/AD/4/2/VOL.IX/3 of 26th April, 1996 is unlawful invalid and ineffectual.
2. An order setting aside the purported letter of dismissal No. APM/AKT/AD/4/2/VOL. IX/3/of 26th April, 1996.
3. A declaration that the plaintiff continues and is still in the employment of the defendant and is entitled to all his emoluments of the defendant and is entitled to al his emoluments and perquisites from 26/4/96, the purported dismissal being invalid and ineffectual.
4. An order directing the defendant to reinstate the plaintiff to his position in the service on (sic) the Defendant and accord the plaintiff all his right and benefits from 26/4/96.
ALTERNATIVELY
1. A declaration that the purported dismissal of the plaintiff from the service of the defendant was wrongful
2. Damages made up of:-
(i) N425, 040.00 being the plaintiff emoluments on salary grade level 07 step 6 and all other perquisite as per paragraph 26 and 27 above, from 1st May, 1996 to the year 2011 when the plaintiff will be 34 years old to retire lawfully.
(ii) N121, 464.00 being the plaintiff gratuity calculated as per paragraph 28 above.
(iii) N728, 784.00 being the plaintiff pension calculated as per paragraph 28 and 29 above.
30(a) all claims of salaries, allowance, pension and gratuity are subject to any review of salaries and entitlement in the defendant’s Establishment applicable to the plaintiff grade level as at the time of judgment.”
The matter went to trial after the parties had filed and exchanged pleadings. The plaintiff testified and tendered some exhibit and the defendant did likewise. Counsel also addressed the court. In a well considered judgment, the learned trial judge entered judgment in favour of the plaintiff by granting the reliefs in paragraph 30(1) – (4) and 30 (a) of the Amended Statement of Claim and dismissed the alternative reliefs. It is against this judgment that the defendant filed its Notice of Appellant dated 28th January, 2008 containing two grounds of appeal from which the following two issues were submitted for determination:-
1. Whether on the state of the pleading and evidence adduced at the trial the learned trial Judge was right in holding as he did, that the Federal Civil Service Rules apply to the Plaintiff contract of employment.
2. Whether the learned trial judge was right to direct the reinstatement of the plaintiff when the incidence of the case do not warrant such an order.
The Respondent distilled the following lone issue for determination:
“Whether on the state of the pleadings and evidence adduced at the trial, the learned trial Judge was right in holding as he did that the Federal Civil Service Rules apply to the plaintiff’s contract of employment and thus ordered the reinstatement of the Respondent.”
The appellant attacked the learned trial judge finding that the instrument relating to the plaintiff’s condition of service as provided in Section 9(1) of the NIPOST Act is the letter of offer of appointment Exh. ‘A’ which incorporated the Federal Civil Service Rules and argued that the respondent did not plead nor prove that the regulations relating to his conditions of service was not made by the Board or was made and incorporated the Civil Service Rules.
In paragraph 21 of the Statement of claim, the plaintiff had averred as follows:-
“21 The plaintiff states that hiss service with the defendant is governed by the Federal Civil Service Rules. The plaintiff shall at the trial rely on his letter of appointment No. APP.767/80.”
In paragraph 15 of the Statement of Defence, the defendant admitted the facts pleaded in paragraph 21 by simply stating “Paragraph 21 is true.”
Later the defendant sought to amend the Statement of Defence to retract the admission earlier made in paragraph 15 of the Statement of Defence but an objection was taken to the amendment sought and the learned trial Judge upheld the objection when he ruled as follows:
“The Defendant’s application to amend its pleadings is coming after the plaintiff has closed its (sic) evidence. Following the decision of the Supreme Court -SAGAY V NEW IND. RUBBER COY (1977) 5 SC 143 AT 146/148 the amendment sought after plaintiff has closed its (sic) case cannot be proper because they raise issue which the plaintiff will, not have an opportunity of be (sic) heard. Therefore the amendments and (sic) prejudice the plaintiff.”
Exhibit ‘A’ is the Offer of Appointment Letter No. APP 767/0 dates 13th February, 1980. It was addresses to the Respondent. Paragraph 1 of Exh. ‘A’ contains the offer of appointment and conditions service and states:
“In the light of the information quoted in your application for appointment dated… and subject to your passing a Medical Officer as to your fitness for employment in the Government Service and showing evidence of successful (sic) in the vaccination, I have the honour to offer you appointment as DRIVER/MECH at a commencing salary of N1, 362 per annum in the Government Salary Scale GL. 04 in (sic) the following conditions (sic):-
(a) That, when (sic) appointment will be “on probation” for two years or for such longer period as may be deemed advisable
(b) That within the probationary period, if it is established to the satisfaction of the Head of Department in which you are serving that you are not qualified from efficient service your appointment may be terminated at any time in accordance with paragraph (c) below without any compensation other than free transport for yourself only, to the place from which you were engaged, and that such free transport will be granted only if your conduct has been good and you claim it within two months of the day of the termination of your appointment.
(c) That while you remain on probation unless you are dismissed the government may, at time terminate your engagement by a month’s notice writing or by payment of a month’s salary in lieu of notice.
(d) That at time, unless you are dismissed, you may terminate your engagement by a month notice in writing, or with the contest in writing, or your Head of Department, by the payment of a months salary in lieu of notice.
(e) That so long as you remain in the Government service you will be liable to be employed in any part of the Federation of Nigeria.
(f) That you will be subject in all respects to all conditions of service stipulated in civil Service Rule (sic) and other Government regulations and instructions…”
As rightly submitted by the Respondent citing Section 75 of the Evidence Act and placing reliance on U.B.A. v JARGABA (2007) 5 SCNJ 127 and VEEPEEE IND. LTD V COCOA IND. LTD (2008) 4 SCNJ 482, with the clear admission made by the Appellant, the respondent did not need to prove the fact that his service with the Appellant is governed by the Civil Service Rules; nevertheless the Respondent testified and tendered Exh. ‘A’ where it was clearly stated that he will be subject in all respect to all conditions of service stipulated in the civil Service Rules and other Government regulations and instructions. If the Appellant case was based on the facts that respondent’s condition of service were governed by regulation made by the Board pursuant to Section 9 (1) of the NIPOST Act, then the onus was on the Appellant to prove that the rules were actually made and not for the Respondent to prove that the rules were not in existence as posited by the Appellant.
It is the contention of learned counsel for the appellant that a corporate legal entity such as the appellant (notwithstanding the provision of section 9(1) even if it has not drawn up its own rules governing discipline of its staff and having not been delegated full disciplinary powers by the Public Service Rules cannot apply the Public Service Rules in the matters of discipline of its staff. Learned counsel went on to state that it is only when it has been established that the Respondent was appointment under the Civil Service Rules or that this employers do not have any regulations relating to the condition of service of its employees or that here is a proviso in the Act which incorporates the applicability of the Civil Service Rules without any limitations that the question of his removal in compliance with the relevant provisions of the Civil Service Rules can arise.
I wish to point out that counsel had preferred the same argument before the lower court and to resolve the issue raised the learned trial Judge found that by the time Exh. ‘B’, ‘C’ and ‘D’ were issued to the plaintiff (now respondent) the P & T Department had metamorphosed into Nigerian Postal Service Department by virtue of the Nigerian Postal Service Department Act No. 18 of 1987 and the Nigerian Postal Service Act No. of 1992. The learned trial Judge found and held that with the metamorphosis, the NIPOST assumed the status of a statutory corporation and ceased to be a department in the Federal Government Service. The court also found that the Board of NIPOST empowered by Section 9(1) of the 1992 Act with the approval of the Minister to make regulations in respect of the conditions of service of its employees had not yet made the regulations so if any problem arose bordering on staff discipline the provisions that were in place before NIPOST became a statutory corporation will apply to fill in the lacuna so created. Dealing specifically with the plaintiff case the learned trial Judge held as follows:-
“Obviously, the plaintiff is one of the employees which Section 9 (1) had in mind. The immediate predecessor in-title to the defendant, the NIPOST Department is one of the bodies dissolved by the Act. See Section 63 and Schedule 2. Schedule 2 preserved all the rights, obligations, liabilities and contracts of the NIPOST Dept and also the contracts of service of person employed in NIPOST Department like the plaintiff. The NIPOST Dept Act No. 18 of 1987 did not make any provisions with respect to conditions of service of its staff. What is clear therefore from both enactments it that the only instrument relating to the plaintiff conditions of service as employee of the defendant to be presented by the Plaintiff is the letter of his appointment Exh. ‘A’. Exhibit ‘A’ in paragraph 1 (f) thereof incorporated the Federal Civil Service Rules and other Government regulations and instruments…”
“There was no express revocation of the contract of employment under the civil service rules between the plaintiff and defendant. Rather there was a quiet acquiescence and adoption of the plaintiff’s contract of employment under the Federal Civil Service Rules” (See page 96 II 22 – 43).
The learned trial Judge properly interpreted the transitional provisions of the NIPOST Department Acts No. 18 of 1987 and 41 of 1992 in relation to plaintiff’s employment. It will amount to asking the Plaintiff/Appellant to prove his case beyond all reasonable doubt if the submissions of learned counsel for the appellant were to be accepted which required the Plaintiff/Appellant to plead and lead evidence to show that the Board did not make regulations regarding his conditions of service.
Learned counsel again repeated the arguments he had advanced in the lower court that it is the common law principle that applied to the plaintiff’s employment with the defendant when he argued in the appellant’s brief that the relationship between the appellant and the respondent was that of mere master and servant which had no statutory flavor since the terms and conditions of the contract of employment between the appellant and respondent as provided for under NIPOST Act is non existent. He cited in support the case of IDONIBOYE OBU v NNPC (2003) 2 NWLR (Pt. 805) 589 and several other cases to AIYETAN V NIFOR (1987) 3 NWLR (Pt.59) 58 and IDONIBOYE OBU v NNPC supra at pages 97 – 98 of the Record of Appeal when he said:-
“I have read the two cases and I observed as follows:-
(1) Aiyetan v NIFOR (supra) Aiyetan was an employee of the Nigerian Institute of Palm Oil Research which was established by a 1964 statute. The plaintiff flied a suit in the High Court of Bendel State challenging his dismissal on the ground that it was unlawful, void and contrary to natural justice. The Act did not provide any ground for the removal of its staff. Section 7 of the Act empowered the Council of each institute to make regulations generally for its purpose under the Act. The regulations were to provide for the disciplinary control of the staff of the institute but no such regulations had been made. Obaseki JSC held at page 791 lines 15 – 17 that-
“That Rules of Common Law and Equity and the provisions of section 33(1) of the constitution must be invoked in the examination of the act or omission of the respondent.”
I wish to distinguish this case from the present one. The statute establishing NIFOR did not contain similar provision as Section 9 (1) of the NIPOST Act which provided a filing for the vacuum left by the absence of the non enactment of the regulations made by the Board. Therefore, it is not all fours with this case and so cannot apply.
(2) Idoniboye Obu was employed by NNPC. The terms and conditions of employment by the Board of the NNPC in respect of all their staff were contained in Exhibit ‘B’. The Supreme Court applied same in determining the plaintiff suit challenging the termination of her appointment. The facts of this case show that the conditions of service of the plaintiff were Exhibit ‘B’ before the Court. So the circumstances in those cases are different from the circumstance of this case. This defendant in this case does not have any contract of service for the employee’s strictu sensu, so the case cannot be applied to this case.”
There is nothing new in the argument of learned counsel for the appellant to sway me otherwise from the standpoint taken by the learned trial Judge in reaching the conclusion that the procedure for dismissing a pensionable officer as stated in paragraph 04102 of the Federal Civil Service Rules was not complied with. Consequently the Appellant did not dismiss the Respondent validly and the said dismissal is therefore declared null and void and the appellant is entitled to be resonated.
The appeal therefore lacks merit and is hereby dismissed with costs assessed at N30, 000.00 in favour of the Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity to read in draft, the lead judgment written and just delivered in this appeal by my learned brother, Kumai Bayang Akkahs, JCA. I entirely agree with his reasoning and the conclusion reached therein. I am therefore in agreement that the appeal lacks merit and it ought to be dismissed. Accordingly, the appeal fails and it is dismissed by me. Indeed, I endorse and abide by the consequential order made in the said lead judgment of my learned brother, Akaah, JCA, inclusive of the order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the draft of the lead judgment jus delivered by my learned brother, Kumai Bayang Akaahs, JCA. The issues raised in the appeal have been comprehensively dealt with in the lead judgment and I agree with the reasoning and conclusion that the appeal lacks merit. I therefore dismiss the appeal and abide by the order for costs assessed at N30, 000.00 in favour of the Respondent.
Appearances
S.O. SangotayoFor Appellant
AND
Usungurua BasseyFor Respondent
