E.P. Iderima V. Rivers State Civil Service Commission (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The appellant was the Principal Accountant in the Rivers State Ministry of Works, and he was dismissed from service by the respondent, the Rivers State Civil Service Commission on 27th August, 1986. Appellant’s dismissal was consequent upon the theft of the sum of N32,037.29 which was in his custody and forming part of public revenue. The cause of the theft was investigated by a Board of Enquiry set up, by the Accountant General of Rivers State pursuant to the Rivers State Financial instructions/regulations and after a thorough investigation by the Board of Enquiry in which the appellant participated, the Board attributed the theft to the negligence and carelessness of the appellant and his failure to take necessary precautions.

A report containing a record of the proceedings of the Board of Enquiry in which the appellant participated and its findings was forwarded to respondent, being the body responsible for the discipline of public officers of the appellant’s cadre.

Subsequently, the appellant was issued with a query by the respondent, asking him to show cause why he should not be dismissed from the service of the Rivers State Civil Service in view of the carelessness, negligence and failure to take necessary precautions leading to the loss of Government funds. The appellant responded to this query but his response was considered inadequate by the Respondent which then held him (appellant) solely responsible for the loss and proceeded to dismiss him from service

Dissatisfied with his dismissal, the appellant commenced an action in the Port-Harcourt Judicial Division of the High Court of Rivers State claiming as follows: –

1. Declaration that-

(a) the plaintiff is still Principal Accountant in the Civil Service of the Rivers State of Nigeria.

(b) the purported dismissal of the plaintiff from the Rivers State Civil Service contained in the letter CPSC/6/3468/97 dated 27th August, 1986 is ultra vires the defendant and therefore null and void and of no effect whatsoever.

2. An injunction restraining the defendant, its servants and/or agents from preventing the plaintiff from performing the functions and duties of the office of Principal Accountant in the Civil Service of the Rivers State or from interfering with his enjoyment of the rights, privileges and benefits attached to the said office.
3. An order of the court restoring the plaintiff to his post and office or offices and to all rights and privileges attaching thereto.”

After the exchange of pleadings by both parties, evidence was led by either side. The learned trial Judge (lately Chief Judge of Bayelsa – K. D. Ungbuku, C. J) dismissed the appellant’s claim in its entirety.

The appellant being dissatisfied with the said decision appealed to the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the court below), canvassing that the Rivers State Civil Service Commission, did not comply with its own rules before dismissing the appellant. The learned Justices of the court below nevertheless dismissed the appeal, holding that reliance by the Civil Service Commission on the report of the Board of Inquiry set up under the Financial Instructions was in substantial compliance with the Civil Service Rules, thereby rendering the statutorily prescribed and mandatory investigation under the Civil Service Rules unnecessary.

In his notice of appeal dated 15th June, 2000 containing four grounds, the appellant submitted two issues as arising for determination.

ISSUES FOR DETERMINATION

(1) Whether the non-compliance by the Rivers State Civil Commission, with the Civil Service Rules in failing to investigate the allegations of impropriety against the appellant can be excused by reliance on the report of a Board of Inquiry that does not form part of the Civil Service Rules in terms of personnel, procedure and mission intendment.

(2) Whether the admission by the Court of Appeal that the trial Judge made a mistake by “treating the matter as if it was a simple case of master and servant” does not amount to a concession that there was a failure of justice, no consideration having been given to the statutory provisions which gave the appointment of the appellant “a statutory flavour.”

The respondent proffered from the two remaining grounds (the third having been abandoned) of appeal a sole issue for determination,to wit:

“Whether the finding made by the court below to the effect that the procedure by which the appellant was dismissed from service was in “substantial compliance”with Rule 04107 of the Civil Service Rules was not a sufficient ground upon which to base it’s judgment dismissing the appellant’s appeal.”

In my consideration of the appeal I am of the view that appellant’s Issues 1 and 2 would suffice to dispose of the appeal. I shall therefore proceed hereafter shortly to consider the appellant’s two issues as follows:

STATEMENT OF FACTS.

Facts which gave rise to this case may be briefly summarized as follows: –

On 8th December, 1985 at about 10.50 a.m. the appellant herein, a Principal Accountant, had gone to his office at the Ministry of Works and Transport to clear a backlog of work, and this not long after his posting to the said ministry where he was covering the duties of a Chief Accountant, his higher office than his substantive post.

Upon getting to his office, he found to his dismay that the office was burgled and the safe therein vandalized. At all times material to this incident, there were security guards on the ground floor housing the appellant’s said office.

The appellant complied with the Financial Regulations in the Civil Service by reporting the loss of the sum of N32,037.29 to the Permanent Secretary, Ministry of Works and Transport. Thereafter, the Accountant-General, Ministry of Finance and Planning Treasury Division, Port Harcourt set up a Board of Enquiry as required by the Financial Instruction to determine the amount of loss and recommend preventive and remedial measures.

By the report of the Board of Enquiry the appellant was recommended for transfer to Treasury Headquarters for deployment on treasury duties since, in their opinion, he (the appellant) is not conversant with treasury duties. It is pertinent to observe that the appellant was not surcharged for the loss.

Be that as it may, subsequently one Mrs. Kambi – Selema who testified against the appellant at the Board of Inquiry was transferred to the Civil Service Commission and she was the one who eventually issued a query to the appellant under Rule 04107 of the Civil Service Rules to which the appellant replied.

Without complying with the mandatory provisions of sub – rule 04107 the respondent proceeded to summarily dismiss the appellant, relying as it were, on the report of the Board of Inquiry. Sequel to his dismissal, however, the appellant sued the respondent claiming inter alia that the dismissal was ultra vires the respondent and therefore null and void. The trial court dismissed appellant’s claim. Being aggrieved, the appellant appealed to the court below.

On 17th May, 2000 the court below dismissed the appellant’s appeal, holding that the appellant whose employment is governed by the Constitution of the Federal Republic of Nigeria and the procedural rules contained in the Civil Service Rules, was properly dismissed when there was non-compliance with the said rules.

Further aggrieved by this decision, the appellant has appealed to this court by filing an appellant’s notice of appeal containing three grounds at pages 139 – 141 of the record.

In my consideration of this appeal, I am of the view that a consideration of the appellant’s arguments contained in his grounds 1, 2 and 3 distilled into Issues 1 and 2 will be enough to dispose of the appeal. I will therefore proceed to consider appellant’s two issues as follows:-

Firstly, the appellant is a senior civil servant of pensionable cadre and matters of discipline appertaining to such officers are governed by Rule 04107 of the Civil Service Rules. By the provision of Rule 04107 of the said Rules the aforesaid disciplinary proceedings are to be conducted in accordance with the provisions of the Civil Service Rules.

In other words, strict adherence to the provisions of the Rules is enjoined. It was further pointed out that by paragraph 4 of the table under Rule 04106(e) the inscription is boldly written no delegation for discipline against officers of pensionable establishment. Consequently, it is stressed, the Civil Service Commission is disentitled to delegate the performance of any of the procedural steps highlighted under Rule 04107 and a fortiori, where another department of government other than the Civil Service Commission, ignorantly veers into matters of discipline by recommending disciplinary steps against an officer in the cadre of the Appellant, such step issued is of no effect. It is not material, that it is a responsible government department as the Justices of the court below termed the Accountant General. Similarly, the Civil Service Commission cannot supplant the proceedings of the Board of Inquiry with the inquiry under Rule 04107. The court below was therefore, in my opinion, in error when it held that the appellant as plaintiff having pleaded in paragraph 25 of the statement of claim that the Board of Inquiry was to determine the correct amount of loss and recommend disciplinary or preventive remedies, he cannot complain when the Civil Service Commission decided to use the report of the Board of Inquiry to dismiss him.

With due respect to the court below, it failed to distinguish between the factual state of the instrument setting up the Board of inquiry and the requirement, purport and intendment of the Financial Instruction, on the one hand, and the mandatory provisions of the Civil Service Rules on the other hand.

Adverting to the Civil Service Rules, neither the Accountant General nor the Board of Inquiry set up by the Accountant-General has the power to discipline the appellant and until the Civil Service Rules otherwise provide, no other method of discipline or extraneous recommendation that should be adopted in the exercise. This is so expressed in Rule 04107 of the Civil Service Rules.

The pleadings, it must be stressed, expressed a factual state of affairs as contained in exhibit “E” especially paragraph (iv) of the terms of reference. With due respect, the court below failed to consider the pleadings of the appellant in its entirety especially paragraphs 30,31,32,33 and 34 of the statement of claim where the non-compliance with Rule 04107 by the respondent was put in issue. And in answer to those paragraphs especially paragraphs 31 – 32, 33 and 34, the defendant/respondent joined issues with the plaintiff/appellant, contending that the appellant was properly dismissed under Rule 04107 and alleging, as it were, that the financial instructions supplement the Civil Service Rules in matters of loss of government funds. It is further submitted that even though the respondent conceded that chapter 35 of the Financial Instructions provides in detail the nature and manner the investigations into the loss of Government Funds should be carried out, contending that compliance with Chapter 35 of the Financial Instruction satisfies the provisions of Rule 04107 of the Civil Service Rules. This contention, it is argued, is made without any evidence that the Civil Service Rules has any provisions in support of the above contention vide Rules 04107 of the CiviI Service Rules.

See again Rule 04104 and 04107.

Secondly, it is appellant’s submission that the conclusion by the Justices of the court below that investigation under the Civil Service Rules was unnecessary should not be sustained. During the Board of inquiry, it was pointed out, Mrs Kambi – Selema who was an Under Secretary in the Ministry of Works and Transport, testified that she was satisfied that fraud and negligence were involved in the loss. The same Mrs. Kambi – Selema was later transferred to the Civil Service Commission and she issued the query, Exhibit B.

The appellant then went ahead to allege unfairness against him by the said Mrs. Kambi – Selema in Exhibit D, the reply to the query. The said Under Secretary had sought to influence investigation against the appellant, poisoning the minds of those who had responsibility to take decision in the matter. The appellant, as indeed transpired, raised the same issue in his brief in the court below. Such matter, as alleged above, it is further added, touches on fair hearing and would have agitated the mind of the courts below nudging their lordships in the inner recesses of their minds that the respondent ought to have investigated the allegations with an independent panel. Having not investigated the allegations, it is further maintained, the fear of the appellant that his dismissal was a foregone conclusion was, in my view, confirmed when he received exhibit C, stressing that this court when faced with a similar situation in the case of Federal Civil Service Commission & ors v. Laoye (1989) 2 NWLR (Pt. 106) 652 at page 683 paragraph G – H made it to arrive at the conclusion:

“It was not the Commission that investigated the respondent. It was his accuser – The Ministry of External Affairs. And so the question of the commission applying rules of natural justice could never have arisen.”

The situation could not have been more apt for the two courts below to apply the sound decision above and appropriately nullify the dismissal of the appellant especially in the face of the cry for justice apparent in exhibit D. (Answer to query of 6/6/86).

It is for the above reasons that the appellant has urged us to consider his entire statement of claim and to hold that even though paragraph 25 thereof was admitted in paragraph 5 of the statement of defence, it does not mean that the Board of Inquiry set up by the Accountant General had the power to discipline the appellant in the face of the Civil Service Rules 04104, 04106(e) paragraph ‘A’ and 04107. The admission was to the extent that there was in existence such instrument having such content. I am of the firm view and so hold that such conclusion does not agree with paragraph (ii) of Rule 04107. What that Rule stipulates is that the matter should be investigated by the appropriate authority with the aid of the head of the appellant’s department and such other officers as the appropriate authority may appoint.

Following from the provision of Rule 04106(e) paragraph ‘A’, above, the appropriate authority in this case is none other than the Civil Service Commission. The court below, with due respect, was therefore clearly in error to hold as it did that:

“The Accountant General set up the Board of Inquiry and passed the result to the Civil Service Commission. This was substantial compliance with Rule 04107 of the Civil Service Rule.”

In this wise, I agree with the appellant’s submission that the Account-General is not the appropriate authority in para. (ii) of Rule 041071; rather he should aid the panel appointed by the Commission.

Furthermore, the Civil Service Rules does not prescribe that the Board of Inquiry’s report can be substituted for the investigation highlighted above to enable the said report to be in substantial compliance. Be it noted that substantial compliance here should be construed within the con of the provisions of the Civil Service Rules.

With utmost respect, the court below adopted a rule of convenience instead of the rule of law which has the effect of compromising the right of a citizen to fair hearing. See Otapo v. Sunmonu (1987) 2NWLR (Pt. 58) 587; Olatunbosun v. NISER (1988) 3 NWLR (Part 80) 25. See also Sections 236 and 33(1) of the 1979 Constitution of Nigeria. For the same reasons, I endorse this court’s rationale as propounded in Federal Civil Service Commission v. Laoye (supra) to the effect that the query did not emanate from the Commission and therefore it is improper that the investigation was not done by the Commission and reliance on it by it (Commission) is improper and entirely misplaced.

Besides, there is no evidence that the Board placed its report before the Civil Service Commission. At best, it can only amount to a mere presumption arising from exhibit “C” -the letter of dismissal.

However, in the absence of direct evidence in this regard, I hold the view that the presence of Mrs. Kambi – Selema at once, as a witness in the Board of Inquiry and the Judge in the Commission, is more apposite. What is more, no witness was called from the Commission to say what happened. Mrs. Kambi – Selema simply picked the report of the Board of Inquiry and fused it into the query which she issued and finally got the appellant dismissed from service despite all the circumstances begging for investigation by an independent body both in the report of the Board and the reply to the query by the appellant which could have salvaged the situation.

I hold that appellant rather than conceding that even when reliance is placed on the report of the Board of Inquiry by the Civil Service Commission, the investigation should dwell on matters arising from the query, namely, that the query should precede the disciplinary action after the investigation. If as in this case the investigation precedes the query and the investigation was done by the head of department, the accuser, and the query later issued by a witness to the accuser to whom a protest was raised by the appellant at the Board of Inquiry, that without investigation by the Civil Service Commission, would result in a total failure of natural justice. Consequently, by the application by this court of the principles enunciated in the case of Federal Civil Service Commission v. Laoye (supra), this appeal should be allowed vide page 714, paras C – D wherein Oputa, JSC made the following pronouncement:

“The 1st defendant (meaning the Civil Service Commission) is a creation of statute and for its dismissal of the respondent to be intra vires, it has to comply strictly with all the Rules (it made) governing the dismissal of its staff – here the Federal Civil Service Rules 04107. Failure to do that renders the dismissal ultra vires, null and void. This is the main plank of this court’s decision in Olaniyan v. The University of Lagos (supra) as well as Eperokun v. The University of Lagos (Supra) since Shitta-Bey’s case (supra), officers in the pensionable cadre of our Civil Service whose terms and conditions of service are governed by the Civil Service Rules made under the Constitution, and therefore having a constitutional flavour, acquired a distinct status which places their employment over and above the common law relationship of master and servant and introduced in these relationships the vires element of administrative law.”

See also the case of Union Bank of Nigeria Limited v. Chukwuelo Charles Ogboh (1995) 2 NWLR (Pt. 380) 647 at page 653 where this court held –

“Except in employment governed by statute wherein the procedure for employment and discipline including dismissal of an employee are clearly spelt out, 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 the relevant statute and any other manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void.

The only remedy is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master even where the master’s behaviour is wrong. For his wrongful act, he is only liable in damages and nothing more. (See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652; Akintemi v. Onwumechili (1985) 1 NWLR (Pt.1) 68; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Aiyetan v. NIFOR (1987) 3 NWLR (part 59) 48; Garba v. FCSC (1988) 1 NWLR (Part 71) 449; Sapara v. UCH Management Board (1988) 4 NWLR (Part 86) 581; Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128…”

I am therefore not in agreement with what the learned Justices of the court below referred to as “The little mistake the court made towards the end of the judgment.” It is not little after all. It assists to measure the extent of understanding by the learned trial Judge of the issues for determination before him for lack of understanding of the issues led to a total failure of justice. It must be emphasized at this juncture that the learned trial Judge did not consider the provisions of the Civil Service Rules especially on non-delegation of disciplinary powers in relation to officers of pensionable cadre, definition of misconduct and procedure for the exercise of disciplinary action. He indeed totally misinterpreted the appellant’s case when, he said “I observe that the plaintiff’s contention on wrongful dismissal is only on technical ground and that is that the query exhibit B did not refer to Rule 04107.” There is nowhere else in the record except in the judgment where this claim appears.

The learned trial Judge actually asserted that misconduct is not defined in the Rules. But Rule 04201 defines misconduct as a specific act of wrong doing, susceptible of investigation and proof and includes willful act or omission or general misconduct to the scandal of the public or to the prejudice or discipline and proper administration of the government e.g. corruption, dishonesty, negligence. This definition is to guide the determination of disciplinary measures against civil servants; noteworthy among which is that misconduct must be investigated and proved in accordance with the Civil Service Rules. This was woefully not done in this case. In this wise, what was dubbed “little mistake” had a profound effect on the final decision of the learned Judge it is for this reason that I am of the opinion that the court below was in error when it failed to probe, and pronounce on this. I therefore accordingly answer Issue No.1 in the negative.

ISSUE 2

As the argument proffered under issue 1 is adopted by the appellant in his brief for an answer to issue 2, I too will give a ditto answer by allowing the appeal and setting aside the judgment of the two courts below. I will also make an order that the dismissal of the appellant from the Rivers State Civil Service contained in the letter CPSC/6/3468/97 dated 27th August, 1986 is null and void and of no effect whatsoever. The appellant is accordingly restored to his post in the Rivers State Civil Service and he is also entitled to all the rights and privileges attached thereto. Respondent shall pay costs of N 10, 000.00 to the appellant.

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SC.45/2001