Raymond S. Dongtoe V. Civil Service Commission, Plateau State (2001)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE, J. S.C

The appeal in this case is again one of the now familiar cases in which the aggrieved resorts to the procedure for seeking relief under the fundamental rights provisions of the Constitution for wrongs where the breach of the Constitutional provision is not applicable and stricto sensu merely ancillary. See Ndigwe v. lbekendu (1998) 7 NWLR (Pt.558) 470; Osazuwa v. E.S.C.S.C (1999) 4 NWLR (Pt.597) 155 SC. UNTHMB v, Nnoli (1994) 8 NWLR (Pt.363) 376;Bamgboye v. Univ. of Ilorin (1999) 10 NWLR (Pt.622) 290, Nnamdi Azikiwe University v. Nwafor (1999) 1 NWLR 116, The principal claim and all the reliefs claimed in this case relate to dismissal of the appellant from his employment. None of the reliefs is within the provisions of Chapter IV of the Constitution; The claim was by motion on behalf of the applicant praying this court for an order or orders:

1. Granting the applicant leave to apply for an order enforcing his fundamental rights against (1) Plateau State Civil Service Commission, (2) Board of Internal Revenue Plateau State, (3) The Attorney-General and Commissioner for Justice Plateau State in terms of the reliefs set out below:

(a) A declaration that the letter reference No, S/RE/397/VoL.1 /29 dated the 8th day of January, 1992. signed by S,G, Gokum (for Administrator of Internal Revenue), and addressed to the applicant purportedly terminating the appointment of the applicant from the service of Plateau State Civil Service Commission is null, void and of no effect whatsoever in that it contravenes the rights guaranteed the applicant by section 33 of the 1979 Constitution of Nigeria,

(b) A declaration that the applicant is still in the employment of the Board of Internal Revenue, Plateau State.

(c) An order directing the Plateau State vii Service Commission and the Board of Internal Revenue Plateau State, their agents servants, and other representatives however called, to reinstate the applicant to his status as civil servant without prejudice to his entitlements and promotions which might have accrued to him during the period of his termination.

(d) An injunction restraining the Plateau State Civil Service Commission and Board of Internal Revenue Plateau State their agents, servants, and other such representatives however called from further interfering with the applicant’s performance of his duties as a civil servant.

There was also a prayer for further order or orders as this Honourable Court may deem fit to make in the circumstance.”

This appeal is against the decision of the Jos Division of the Court of Appeal. which had on the 8th December, 1994, dismissed the appeal against the decision of the Plateau State High Court Appellant as I have stated had claimed before the High Court for leave for an order pursuant to Order 1 rules 2 (2) and (3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 enforcing his fundamental human rights and seeking a declaration that the purported termination of his appointment in a letter dated 8th January, 1992 was null and void and of no effect whatsoever.

A summary of the facts

The appointment of appellant a permanent and pensionable employee of the Plateau State Government service was terminated by the 1st respondent on behalf of his employers on the 8th January, 1992 in a letter reference No S/RE/397/Vol.1/29 dated 8th January, 1992, and Exhibit “E” in these proceedings. Appellant started his working career with the Plateau State Government as a Community Development Assistant with the Ministry of Local Government on the 15th January, 1968. He was subsequently posted to the Board of Internal Revenue as a Senior Inspector of Taxes. On the 23rd January, 1987, he was promoted to the post of Principal Inspector of Taxes. In July, 1989 he was appointed Acting Director in the State Civil Service.

In August, 1991, appellant, with others, was accused of stealing the sum of N 10,984.12k, property of his employers, the Plateau State Government. He was accordingly accused by the 2nd respondent on behalf of his employers formally demanding explanation in a letter of the commission of criminal offences, namely, of conspiracy and theft. Appellant replied the query issued him by the 2nd respondent to explain why disciplinary action should not be taken against him for his gross act of misconduct. The query is Exhibit “D” in these proceedings and is letter Ref. No,S/DIR/102/V01. dated 19th August, 1991. Appellant replied to the letter of 2nd respondent. The 2nd respondent was not satisfied with the explanation by appellant in his answer to the query and consequently terminated his appointment.

The reaction of appellant to the termination of his appointment was the proceedings described above in the Jos High Court seeking leave to enforce his fundamental right by the nullification of the letter of termination of his appointment, and an order of reinstatement into his previous position of employment with all attached benefits and for an injunctive order restraining the respondents from interfering with his employment.

The learned trial Judge dismissed the application for the enforcement of the fundamental right of the appellant. The learned trial Judge declined the exercise of his discretion to grant leave in favour of the appellant to enforce the rights claimed, because of the failure of the Appellant to disclose a material fact essential to the exercise of his discretion. The material fact in issue being the omission of the appellant to depose to his reply to the query issued him accusing his of the commission of the offences of conspiracy and theft.

The learned trial Judge concluded as follows: