C.N. Okocha V. Civil Service Commission (Edo State) & Anor (2003)
LawGlobal-Hub Lead Judgment Report
RABIU DANLAMI MUHAMMAD, J.C.A.
Mr. C.N. Okocha, started his civil service career in 1974, as a Typist Grade III, with the then Mid-Western State, which later became Bendel State. In 1977, he was appointed a stenographer. In 1981, he was appointed Assistant Education Officer. He was promoted to the rank of Education Officer, on grade level 8, in 1983. In 1985, he was transferred to the audit department as auditor grade two. On 15/9/86, while he was on his annual leave, he received a query, whereby, he was alleged to have dubiously received the sum of N15,000.00 from the cashier of Aniocha Local Government Council.
The matter was also reported to the police. He was eventually arraigned before the Ogwashi-Uku Magistrate Court. He was also interdicted. He was subsequently discharged by the Magistrate on the advice of the D.P.P, who wrote and stated that there was no prima facie case against him. After he was discharged ,he wrote to the audit department to reinstate him. This was not done. Instead, he received two further queries, dated 13/8/87 and 25/8/87. He was accused of cover up of loss of various sums of money. He replied to the two queries. Apparently, not satisfied with his explanations, he was dismissed from service with effect from 14/12/87.
He petitioned about his dismissal and urged the civil service commission to reinstate him. The civil service commission refused. He therefore, sued the then Bendel State Civil Service Commission. During the pendancy of the case, Bendel State was split into Edo and Delta States. The plaintiff then sought and was granted leave to amend the writ of summons and the statement of claim to sue the Civil Service Commission of both Delta and Edo States.
By his amended statement of claim, the plaintiff claims the following reliefs:
“1. A Declaration that letter No.B/SS/239/40 of 17th December, 1987, dismissing plaintiff from the civil service of the then Bendel State, is absolutely void and inoperative by reason of repugnancy to the applicable regulations of the civil service commission of the then Bendel State now applicable to both Edo and Delta States and to the Constitution of the Federal Republic of Nigeria, 1979.
2. A Declaration that the decision of the civil service commission of the then Bendel State refusing or failing or neglecting to reinstate plaintiff in his service in the then Bendel State after the Director of Audit’s query No.B/SS/237/41 of 15th December, 1986, had collapsed and continuing plaintiff’s said interdiction, while searching for new offences on the basis of which to institute a fresh and altogether new disciplinary proceeding and dismiss plaintiff from defendant’s service is illegal, unconstitutional, null and void on the ground of inconsistency with the applicable regulations of the Civil Service Commission of Bendel State now applicable to the Civil Service Commission of both Edo and Delta States.
3. An order setting aside the said letter No. B/SS/239/40 of 17th December, 1987; and the preceding order of interdiction of plaintiff by the defendants.
4. An order directing the defendants forthwith to reinstate the plaintiff in his office as auditor grade II in the civil service of either Edo State or Delta as may be appropriate and to pay to plaintiff the balance of plaintiff’s half salary, from 23rd December, 1986, to 14th December, 1987, and the arrears of plaintiff’s salaries and allowances as such Auditor II from 14th December, 1987, to the date of judgment in this action and thereafter to the date of his reinstatement in that office.”
After filing the amended statement of claim, the first defendant i.e. Edo State Civil Service Commission, filed an amended statement of defence. The Delta State Civil Service Commission i.e. the 2nd defendant, did not file any defence. At the trial, the plaintiff testified on his own behalf. He was not cross-examined because the defendants were absent from court. The plaintiff did not call any other witness. The defendants did not offer any evidence.
In a reserved judgment, the trial Judge dismissed all the plaintiff’s claim except the claim that the plaintiff be paid his half salaries that were withheld. This is what he said:
“The sum total of this judgment is that all the claims fail except the claim that the plaintiff be paid his half salaries that was withheld by the 1st defendant, during the interdiction of the plaintiff as from 13/12/86 to 14/12/87 when he was dismissed.”
Dissatisfied with this decision, the plaintiff appealed to this court. He filed two original grounds of appeal. With the leave of this court, he filed two more additional grounds of appeal. The grounds of appeal read:
“1. The learned trial Judge misdirected himself on the facts when he failed to distinguish between the allegation of the defendants in respect of an alleged cover up of N2,300.00 to which the appellant made written representation in defence thereof and a separate and distinct allegation of an alleged cover up of the sum of N5,120.00 communicated to the appellant vide his dismissal letter to which the appellant was not afforded an opportunity to be heard in defence thereof which misdirection occasioned a grave miscarriage of justice.
2. The learned trial Judge erred in law and on the facts when he held that “what I understand” “cover up” to mean is that the appellant was grossly negligent as an Auditor Grade II in not seeing or reacting to what happened or would have happened to the sum of N5,120.00, when he led a team of Auditors to audit the revenue of Oshimili Local Government Council, which thereby occasioned a grave miscarriage of justice.
PARTICULARS
(a) The usage of the word ‘cover up’ meant knowingly aiding and abetting in the concealment of the loss of the sum of N5,120.00.
(b) There was no evidence before the trial court from which the court could draw the inference that the alleged cover up occurred when the appellant led a team of Auditors to audit the revenue of Oshimili Local Government Council and the trial court speculated and conjured evidence in respect of this assertion.
3. The learned trial Judge erred in law, where he held that the employment of plaintiff/appellant is also governed by common law principles.
PARTICULARS OF ERROR
(a) Not supported by evidence on record.
(b) Relied on no authority to reach such a conclusion.
4. The learned trial Judge erred in law by refusing to grant the plaintiff/appellant’s reliefs 1, 2 and 3 in the plaintiff/ appellant’s claim in view of the evidence before the court.
PARTICULARS OF ERROR
(a) Denial of reinstatement of the appellant after dismissal of the charge that led to his interdiction.
(b) Denial for fair hearing before dismissal for a “cover up” of N5,120.00 to which no query was issued to the appellant neither did he have notice of same before the alleged dismissal.
(c) Failure to meet the provisions of civil service regulations and the Constitution before the dismissal of the appellant.”
In compliance with the rules of this court, briefs of argument were filed and exchanged. The appellant identified four issues for determination in his brief, while the 1st and 2nd respondents identified two issues each for determination in their respective briefs.
The issues formulated by the appellant are:
“1. Whether the learned trial Judge was right to hold that “cover up” means “gross negligence”.
2. Whether the learned trial Judge was right to speculate, conjure and supply evidence not borne out of the evidence before the court.
3. Whether the learned trial Judge was right, when he held that the employment of the plaintiff is also governed by common law principles.
4. Whether the learned trial Judge was right to have refused plaintiff’s reliefs in view of the evidence before the court and plaintiff’s right to fair hearing violently breached.”
The 1st respondent on the other hand formulated two issues for determination. They are:
“1. Whether in the circumstances of the case, the learned trial Judge was right in upholding the dismissal of the appellant.
2. Whether the interpretation placed on the word “cover up”, as contained in exhibit H and the findings of the learned trial Judge as to the nature of employment of the appellant occasioned a miscarriage of justice.”
The second respondent also identified two issues for the determination of this appeal:
“1. Whether the learned trial Judge properly evaluated the evidence adduced by the plaintiff/appellant at the trial of this suit.
2. Whether in the light of the evidence before the court, the plaintiff/appellant is entitled to the relief sought.”
Taking into consideration the grounds of appeal, I am of the opinion that the issues formulated by the appellant are more apt to the determination of this appeal. I will therefore use them.
I will now deal with the first issue, which is whether the learned trial Judge was right to hold that “cover up” means gross negligence. It was submitted in the appellant’s brief that “cover up” meant knowingly, aiding and abetting in the concealment of wrong doing. It is further submitted that “cover up” is a criminal offence and that the appellant could not be summarily dismissed without recourse to a court of law. It required proof beyond reasonable doubt and only a court of law or criminal tribunal can do so. Section 33(4) of the 1979 Constitution and the following cases were referred to in support: FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652 and Garba v. University of Maiduguri (1986) 1 NWLF (Pt.18) 550.
It was submitted that failure of the trial Judge to appreciate the correct meaning of “cover up” and the appellant’s complaint that the provisions of the civil service rules in respect of criminal allegation against an employee was not complied with should vitiate the judgment.
The 1st respondent in its brief, submitted that the trial Judge was right, when he held that the words “cover up” could not be inferred to mean that the plaintiff stole the money or that he did anything unlawful with the money. It was submitted that “cover up” meant grossly negligent. We were urged to hold that failure of the appellant not to see or react to what happened to the said amount of money amounted to gross negligence that was of a grave and weighty character as to undermine him and that the trial Judge was right in upholding the dismissal of the appellant.
“Cover-up” has been defined in Black’s Law Dictionary 5th Edition as, “to conceal. As a crime, the act of concealment, or hiding something wrong or criminal.” Also in New Webster’s Dictionary of English Language, Modern Desk Edition “cover-up” is defined as “anything done to conceal wrong doing.” From the above definitions, it is my considered opinion, that if one is accused of “cover-up”, he is accused of concealing or hiding something wrong or criminal. The trial Judge however, defined “cover-up” as gross negligence. In his judgment he stated:
“What I understand “cover up” to mean is that, the plaintiff was grossly negligent as an Auditor Grade II in not seeing or reacting to what happened or would have happened to the sum of N5,120, when he led a team of auditors to audit the revenue of Oshimili Local Government Council, the defendant did not allege that the sum was stolen by the plaintiff.”
I am afraid the learned trial Judge is in error, by arriving at this definition. This is moreso, if we look at exhibit F the letter of query and paragraph 20 of the joint statement of defence. It could be seen that the word “cover-up” as used by the respondents, connotes crime. Part of exhibit F reads:
Query
“Cover Up Of N2.300.00 By The Audit Team
It has come to my notice that in October, 1986, you led an audit team to Oshimili Local Government Council, to audit the accounts of the revenue collector. During the course of the audit, one Mr. Peter U. Nwanze, a revenue collector attached to Ogbogonogo, Motor Park Asaba, sustained a loss totaling N2,300.00. The loss was not officially reported to the Principal Auditor. Infact, your good self and your assistant Mr. K. Okoh colluded with the revenue collector to defraud the council with the sum of N2,300. 00 … This loss of fund came to your notice and you decided to cover it up.”
(italics mine).
Parts of paragraphs 19 and 20 of the joint statement of defence read:
“19. … Mr. P.U. Nwanze was therefore invited to say what happened. He there and then confessed that the plaintiff was aware of the issue and that he gave the plaintiff N500,000.00 to cover up the fraud. When this cover up was brought to the notice of 2nd defendant, the plaintiff and Mr. K. Okoh, who were the principal actors in the cover up were issued queries and a board of enquiry set up to look into the cover-up.
20. …The plaintiff wrote asking to be reinstated into the civil service as the Director of Public Prosecutions could not continue with the first case against him, which was involving the N15,000.00. The 2nd defendant could not reinstate him as the case of cover-up of fraud against him which was being investigated at this time was a serious one…”
It could be seen that the appellant was alleged to have covered up a fraud, which involved the loss of certain amount of money. He was also accused of receiving N500,000.00 to perpetrate the cover-up. It could be seen that the appellant was not being accused of being grossly negligent, but accused of either, aiding and abetting an offender or screening of an offender, whether as a crime. By accusing him of cover-up, the appellant is being accused of concealing a crime. The appellant was being accused of committing a crime.
The trial Judge was therefore wrong to hold that “cover-up” as used in the query and the dismissal letter meant “gross negligence.”
When a person is accused of committing a criminal offence, he must be taken before a court of law for trial and not merely be dealt with by a disciplinary tribunal. By virtue of section 33(1), (4) and (13) of the 1979 Constitution only, a court of law or ajudicial tribunal is competent to hear and determine a criminal charge against a person accused of committing a criminal offence. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt 18) 550. However, the decision in Garba (supra) should not be taken as a prohibition of instituting disciplinary measures against civil servants, where there has been a criminal charge or accusation. See F.C.S.C v. Laoye (1989) 2 NWLR (Pt 106) 652 at 679 where Eso, JSC stated:
“I would like to emphasize herein that, the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants, where there has been a criminal charge or accusation. However, other considerations might enter. For once, such criminal allegations are involved, care must be taken that the provision of S. 33(4) of the Constitution are adhered to.
It is not so difficult where the person so accused, accepts his involvement in the acts complained of and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all, admit of their involvement in criminal acts.”
In our present case, the appellant was accused of committing a criminal offence. He was issued with a query. He answered the query. He was ultimately dismissed. By virtue of S. 33(4) of the 1979 Constitution, since he was accused of committing a crime, he must be taken before a court of law or judicial tribunal to determine the criminal charge against him. He cannot be dealt with by a disciplinary tribunal. Infact, the appellant was never called before any Board of Enquiry.
In his evidence before the trial court, the appellant stated:
“The defendants in their statement of defence alleged that I appeared before a Board of Enquiry. This is not true. I was not invited to appear before any Board as far as the subject matter is concerned, and they said that they would rely on the report of the Board of Enquiry. My lawyer sent them notice to produce the report of Board of Enquiry… Nothing was produced.”
This testimony was not challenged. I therefore hold that, the dismissal of the appellant was in contradiction of the Civil Service Rules of the then Bendel State.
I will now deal with the third and fourth issues together. I will deal with the second issue later. The third issue is whether the learned trial Judge was right, when he held that the employment of the plaintiff is also governed by common law principles. It was submitted on behalf of the appellant that the trial Judge was wrong in law to have held that the appellant’s employment was also governed by common law, having said earlier that Civil Service Rules regulate the relationship between the appellant and respondent. It was submitted that there were four categories of employment as was held in Faponle v. U.I.T.H.B.M. (1991) 4 NWLR (Pt.183) 43 and they are: (a) Employment under common law where written agreement is absent. (b) Employment under a written contract. (c) Employment covered by statute and (d) Employment of public servant covered by Civil Service Rules and the Constitution.
It was then submitted that the appellant’s employment came under (d), which required different consideration for dismissal of an employee from employment governed by common law. It was further submitted that under category (d), the court could in appropriate cases, order reinstatement where an employee was wrongfully dismissed and the following cases were relied upon: Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40; Odiase v. Auchi Polytechnic (1998) 4 NWLR (Pt.546) 477 and UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) 376.
The appellant, before his purported dismissal, was a permanent and pensionable officer in the then Bendel State Civil Service Commission. At the time he was purportedly dismissed, he had put in thirteen years of service. His condition of service is governed by the Bendel State Civil Service Rules. As an officer of the government, the appellant has acquired a status which goes beyond ordinary or mere master and servant relationship.
In Shitta-Bey v. F.P.S.C. (supra) Idigbe, JSC stated at page 56 that:
“The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by virtue of the constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of section 160(1) of the 1963 Constitution Act, No. 20 of 1963. These Rules, therefore, in my view, have Constitutional force and they invest the public servant over whom they prevail a legal status; a status which makes his relationship with the respondent and the government although, one of master and servant certainly beyond the ordinary or mere master and servant relationship. Under these Rules (i.e. The 1974 Civil Service Rules which, as I already pointed out, have statutory force and, therefore, ought to be “judicially noticed”), paragraphs 04107 to 04121 provide the procedure which must be adopted in the removal or retirement from service., as well as the general disciplining, of public servants in the established pensionable cadre.”
It could be seen from above that the Civil Service Rules invests in public servants a legal status and they cannot be properly or legally removed until the said rules are strictly complied with. See rule 04107 of the Civil Service Rules, Bendel State, where the procedure to be followed in dismissing a public servant is prescribed and where it was categorically stated that an officer in the Bendel State Civil Service may be dismissed only in accordance with the provisions of the said Rules unless the method of dismissal is otherwise provided in the rules.
The said rules provides:
“(i) The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;
(ii) The matter shall be investigated by the appropriate authority with the aid of the head of the officer’s department and such other officer or officers as the appropriate authority may appoint;
(iii) If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;
(iv) No documentary evidence shall be used against the officer, unless he has previously been supplied with a copy thereof or given access thereto:
(v) If the officer does not furnish any representations within the time fixed, the Civil Service Commission may take such action as it deems appropriate against him:
(vi) If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly;
(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the service, but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate:
(viii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed, but that the facts of the case disclose grounds for requiring him to retire in accordance with rule 04114, it shall direct accordingly;
(ix) In exceptional cases, if upon considering the officer’s representations the commission is of the opinion that the case against the officer needs further clarification, it shall appoint a committee to enquire into the matter, the committee shall consist of not less than three persons, one of whom will be appointed Chairman by the commission. The members of the committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the inquiry. The head of the officer’s department shall not be a member of the committee;
(x) The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the committee;
(xi) If witnesses are examined by the committee, the officer shall be given an opportunity of being present and of putting questions to the witnesses on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto;
(xii) In exceptional cases, the committee may in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the committee permits the officer to be represented by counsel, the government shall similarly be represented by a counsel;
(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Civil Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds:
(xiv) The committee having inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The commission shall not itself hear witnesses;
(xv) If upon considering the report of the committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken:
(xvi) If the Civil Service Commission does not approve the officer’s dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted:
(xvii) If the commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate;
(xviii) If upon considering the report of the committee, the commission is of the opinion that the officer does not deserve to be dismissed, but that the proceedings disclose grounds for requiring him to retire, the commission shall, without further proceedings, direct accordingly.”
In dismissing the appellant from service, the respondents did not comply with any of the provisions of the Civil Service Rules. The dismissal is therefore null and void.
I now come back to the second issue i.e. whether the learned trial Judge was right to speculate, conjure and supply evidence not borne out of the evidence before the court. It was submitted that the trial Judge did not maintain either the semblance or the substance of impartiality in the case, but instead appeared from the judgment to have represented the respondents. It was also alleged that the trial Judge imported evidence into his judgment which had not been given in court. The appellant’s counsel then enumerated what in his opinion were the offending statements and/or conclusion made by the trial Judge, which were unsupported by evidence. I have very carefully considered what were called the offending statements and conclusions and the evidence adduced before the trial court. It is my considered opinion that the allegation of bias, speculation, conjuring and supplying of evidence made against the learned trial Judge was unfair and baseless.
There was nowhere in the judgment where he manufactured evidence. If counsel for the appellant had carefully read the exhibits tendered by the appellant himself, he would have seen where the trial Judge got his evidence. For example it was alleged that the statement by the trial Judge that:
“The plaintiff led an audit team to audit the accounts of the Revenue Collector of Oshimili Local Government Council.”
It was not borne out of the evidence before the court. This is not true. If we look at exhibit F we can see where the trial Judge got his facts. Part of exhibit F reads:
“It has come to my notice that in October, 1986, you led an audit team to Oshimili Local Government to audit the accounts of the Revenue Collector… “(italics mine)
The trial Judge cannot be said to have manufactured evidence in view of the above. Exhibit F was tendered by the appellant. Another alleged “offending” statement by the trial Judge is:
“The plaintiff as an auditor, is supposed to be a watch dog of Government’s money. If a watch dog closes his eyes to seeing whatever happens to government money.”
This statement, in my view, does not exhibit bias or speculation on the part of the trial Judge. He was simply expressing his opinion on how an auditor should behave. There is nothing wrong in doing that. I therefore, hold that the learned trial Judge did not manufacture evidence for the purpose of assisting the respondents.
I have earlier in this judgment held that the purported dismissal of the appellant was null and void for non-compliance with the Bendel State Civil Service Rules. Generally, when there has been a purported termination of a contract of service, a declaration will not be issued to the effect that the contract of service still subsists, because the court will not order specific performance of a contract of personal service, but there may be special circumstances which may require the making of such a declaration.
One of the special circumstance is where the contract of service has statutory flavour. See U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 664 where Belgore, JSC stated:
“… Except in employment governed by statute wherein the procedures for employment and discipline (including dismissal) of an employee are clearly spelt our, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect.”
The dismissal of the appellant which was done not in accordance with the Bendel State Civil Service Rules is null and void and I so hold. Since the employment of the appellant has statutory flavour, the court can order the reinstatement of the appellant. The appeal succeeds and is hereby allowed by me. The judgment of the lower court is set aside. In its place, I enter judgment in favour of the appellant as follows:
1. Letter No.B/SS/239/40 of 17th December, 1987, dismissing the plaintiff from the Civil Service of the then Bendel State is null and void and of no effect.
2. The letter No.B/SS/239/40 of 17th December, 1987, and the order of interdiction are hereby set aside.
The appellant is an indigene of Delta State. With the splitting of Bendel State into Edo and Delta States, the appellant would have been deployed to the Delta State, his state of origin. In the circumstance, I further order that:
3. The 2nd respondent i.e. Civil Service Commission, Delta State, reinstate the appellant in his office as Auditor Grade II and pay to the appellant the balance of his half salary from 23rd December, 1986, to 14th December, 1987, and the arrears of his salaries and allowances as such Auditor Grade II from 14th December, 1987, till the present date.
There is no order as to costs.
Other Citations: (2003)LCN/1391(CA)