Patrick Ziideeh V. Rivers State Civil Service Commission (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

This appeal is against the judgment of the Port Harcourt Division of the Court of Appeal delivered on 7/12/2000, dismissing the appellant’s appeal against the judgment of the Ahoada trial High Court of Justice, Rivers State of 29/11/1990 dismissing the appellant’s action against the respondent.

The appellant was a civil servant under the employment of the respondent in the Ministry of Commerce and Industry, Port Harcourt as a Store Assistant. In 1977, it was discovered in the store where the appellant was serving that 120 bales of stockfish worth N20,000.00 were missing. The appellant who was interdicted and placed on half salary, was charged to a Magistrate Court for the theft of the bales of stockfish. After the trial, the appellant was discharged and acquitted on 1-11-1978.

However, in 1984, a Board of Inquiry was instituted to investigate the loss of the 120 bales of stockfish from the appellant’s store. The appellant was invited to give evidence and testified before the Board of Inquiry which in its report, though found the appellant grossly negligent in causing the loss of the 120 bales of stockfish to his employers, recommended his reinstatement to his post in the civil service. The respondent however refused to act on this recommendation and proceeded to terminate the appointment of the appellant by a letter dated 1-6-1984. The appellant who was not happy with this step taken by the respondent inspite of the recommendation of the Board of Inquiry, filed his action at the trial High Court and claimed the following reliefs against the respondent as the defendant –

“(1) A declaration that the termination of the plaintiff by the defendant is null and void and of no effect whatsoever.

(2) A declaration that the plaintiff is still a member of Rivers State Civil Service holding the post of Store Assistant thereof and is therefore entitled to be paid all his salaries and entitlements with effect from January 1978 by virtue of the said employment.

(3) Plaintiff’s entitlements from January, 1978 to December 31st, 1985 is N11,560.29k.”

At the hearing of the case on pleadings, the appellant as plaintiff testified in support of his claims and in the course of his evidence tendered the letter of termination of his appointment and the report of the Board of Inquiry which were received in evidence as exhibits ‘A’ and ‘B’ respectively. Only one witness testified for the defendant. In the judgment dated 29-11-1990 but delivered on 4-12-1990, the appellant’s action was dismissed by the learned trial Judge. The appellant’s subsequent appeal against this judgment to the Court of Appeal was also dismissed on 7-12-2000. Still dissatisfied with the outcome of his appeal, the appellant has now further appealed to this court.

The appellant in his brief of argument raised three issues for the determination of the appeal from the three grounds of appeal filed by him. The issues read –

“1. Whether the appellant was given a fair hearing as far as the several offences referred to in exhibit A (the letter of termination) are concerned.

2. Whether the Coutrt of Appeal was right in holding that the appellant never pleaded the Civil Service Rules.
3. Whether the Court of Appeal was right in holding that the appellant did not plead that his appointment was one with statutory flavour.”

In the respondent’s brief however, the following two issues were identified.

“1) Whether the plaintiff/appellant was given fair hearing before his employment was terminated.

2) Was the Court of Appeal right in striking out issues 2 and 3 before it on the ground that the facts referred to therein were not pleaded and were being raised for the first time.”

In addition to the issues raised in the respondent’s brief, the respondent also raised a preliminary objection to ground 2 and issue 2, arising from it in the appellant’s brief as not having arisen from the decision of the court below because neither that court nor the trial court pronounced a decision on whether or not the Civil Service Rules were applicable to the case. Thus, being a fresh issue, leave was required to raise it in the appeal before this court in line with the decisions in Rockonoh Property Co. Ltd. v. NITEL Plc (2001) 14 NWLR (Pt. 733) 468 and Incar (Nig.) Plc v. Bolex Ent. (Nig.) (2001) 12 NWLR (Pt. 728) 646.