Nigerian Postal Service V. Emayak Mendie (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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:-