Iderima v. Rivers State Civil Service Commission (2002)

[2002] 1 .
Iderima v. R.S.C.S.C.
715

                                                                    E.P. IDERIMA

            V.

            RIVERS STATE CIVIL SERVICE COMMISSION

COURT OF APPEAL

(PORT HARCOURT DIVISION)

CA/PH/182/94

JAMES OGENYIOGEBE, J.C.A. (Presided and Read the Leading Judgment)

IGNATIUS CHUKWUDIPATS-ACHOLONU, J.C.A.

ABOYI JOHN IKONGBEH, J.C.A.

WEDNESDAY, 17TH MAY, 2000

LABOUR LAW – Dismissal of civil servant – Steps required therefor – Rule 04107 Rivers State Civil Service Rules.

LABOUR LAW – Dismissal under Civil Service Rules – Need for employer to follow Civil Service Rules – Purport of

MASTERAND SERVANT – Dismissal ofcivil servant – Steps required therefor – Rule 04107 Rivers State Civil Service Rules.

MASTER AND SERVANT – Dismissal under Civil Service Rules – Need for employer to follow Civil Service Rules – Purport of.

PUBLIC SERVICE – Dismissal of civil servant – Steps required therefor – Rule 04107 Rivers State Civil Service Rules.

Issues:

1.
Whether the trial court was right to go beyond the issues settled by its order and to condemn the appellant based

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21 January 2002

    on the evidence before the Board of Inquiry.

2.
Whether, in the circumstances of the case, there was compliance with rule 04107 of the Rivers State Civil Service Rules before the appellant was dismissed.

Facts:

The appellant was a Principal Accountant in the Civil Service of Rivers State of Nigeria. A safe where he kept some money in the office was broken into and the sum of N32,000.00 or thereabout was stolen. He reported the matter to the police and to the Permanent Secretary, Ministry of Works and Transport. The Accountant- General set up a board of inquiry which investigated the matter and the appellant testified before the board.

On 28th May, 1986 the appellant received a letter from the respondent querying him about the incident which he replied to and on 27th August, 1986 the appellant was served with a letter of dismissal.

Thereafter, the appellant sued the respondent for declarative reliefs that he was still a Principal Accountant in the Rivers State Civil Service and that his purported dismissal was ultra-vires and void. He also prayed for an injunctive order restrainning the respondent and its servants or agents from preventing him from performing his duties as the Principal Accountant and re-instatement to his former post and the privileges attached thereto. At the trial the appellant filed an application which was granted and the issues in controversy were settled as follows:

“1.
From the facts admitted and denied on the pleadings of both parties, whether or not the dismissal of the plaintiff by the respondent was in accordance with the provision of Rule 04107 of the Civil Service Rules.

2.
Whether the plaintiff is not entitled to be fully restored to the office of Principal Accountant in the Rivers State Civil Service with all the entitlements accrueable during the period of his dismissal.”

The respondent called one witness at the trial, who gave evidence that the appellant was queried in exhibit “B” by the Civil Service Commission, that he repliedin exhibit “D” and was dismissed vide exhibit “C” The report of the board of inquiry set up was also admitted as exhibit “E”.

At the end of the trial, the court dismissed the appellant’s claim

[2002] 1 .
Iderima v. R.S.C.S.C.
717

on the ground that the appellant did not prove that he was not properly dismissed under the civil service rules. Dissatisfied, the appellant appealed to the Court of Appeal which in its judgment considered the provision of Rule 04107 of the Civil Service Rule which reads as follows:

“(i)
The officer shall be notified in writing of the groundson 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 ground 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 Federal Public 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.”

Held (Unanimously dismissing the appeal):

1.
On Purport of compliance with Civil Service Rules before dismissing civil servant –

The insistence that the appropriate authority should comply with the Civil Service Rules before dismissing a civil servant is not just for its own sake. It is to ensure that such civil servant gets a fair hearing as commanded by the Constitution. If it is established that the dismissed civil servant got a prior fair

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21 January 2002

hearing it will be sheer legalism to declare his dismissal wrongful merely because every letter of the Civil Service Rules had not been followed. In the instant case, the appellant averred in paragraph 25 of his statement of claim that a board of inquiry was set up not only to determine the correct amount of the loss resulting from the alleged theft but also to apportion blame on the person responsible and recommend disciplinary or preventive remedies. Therefore if an inquiry has already been conducted by a responsible Government Department and placed before the Civil Service Commission and the Commission was satisfied with the report and issued a query based on that report to the officer and the officer replied, then there is substantial compliance with the civil service rules and therefore no need for another separate inquiry. (Pp. 723, paras.D- E;724,paras. G-H;725,paras. D-E)

2.
On Steps required before dismissing a civil servant under Civil Service Rules –

Before a public officer can be dismissed under the Civil Service Rules by virtue of rule 04107 of the said Rules, the following procedure must be followed, that is:-

  (a)
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 ground upon which he relies to exculpate himself;

  (b)
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;

  (c)
if any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;

[2002] 1 .
Iderima v. R.S.C.S.C.
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(d)
no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

(e)
if the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

(f)
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.

In the instant case, the appellant’s contention was that the Civil Service Commission should have set up another independent panel to investigate the allegation against him other than the board of inquiry set up by the Accountant-General. However, the appellant appeared before the board and testified; he also gave evidence that he saw the report before he sent his representation to the query of the respondent even though he was not formally served with the copy. In essence, the appellant had every opportunity to defend the allegation levelled against him before he was dismissed. Even though the appellant was working in the Ministry of Works and Transport he was accountable to the Accountant-General who was the head of his department. 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 Rules.(Pp. 72-724,paras. A-B;F-E)

Nigerian Case Referred to in the Judgment:

Federal Civil Service Commission v. Laoye (1989) 2 . (Pt.106) 652

Appeal:

This was an appeal against the judgment of the High Court of Rivers State, Port Harcourt which dismissed the appellant’s claims. The Court of Appeal, in a unanimous decision, dismissed the appeal.

720
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21 January 2002
(Ogebe, J.C.A. )

A

B

C

D

E

F

G

H

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which appeal was brought: Court of Appeal, Port Harcourt Names of Justices that sat on the appeal: James Ogenyi Ogebe, J.C.A. (Presided and Read the Leading Judgment); Ignatius Chukwudi Pats-Acholonu, J.C.A.; Aboyi John Ikongbeh, J.C.A.

Appeal No.: CA/PH/182/94

Date of Judgment: Wednesday, 17th May, 2000

Names of Counsel: E. U. John, Esq. – for the Appellant Respondent absent and unrepresented.

High Court:

Name of the High Court: High Court of Rivers State, Port Harcourt

Name of the Judge: Ungbuku, J.

Counsel:

E. U. John, Esq. – for the Appellant

Respondent absent and unrepresented.

OGEBE, J.C.A. (Delivering the Leading Judgment): The appellant sued the respondent before the High Court of Justice, Port Harcourt claiming as per paragraph 35 of the statement of claim as follows:

                    “Wherefore the plaintiff claims against the defendant –

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 viresthe defendant and therefore null and void and of no effect whatsoever.

     2.
     An injunction restraining the defendant, its servants

[2002] 1 .
Iderima v. R.S.C.S.C.
(Ogebe, J.C.A. )
721

A

B

C

D

E

F

G

H

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 the post and office or offices and to all rights and privileges attached thereto.”

Pleadings were exchanged and the matter went to full trial. During the course of the trial the appellant brought a motion before the trial court to determine the real questions in controversy between the parties and settling such questions in the form of issues. The court granted the application and settled the issues in controversy as follows:

“Issues for Trial

” 1.
From the facts admitted and denied on the pleadings of both parties, whether or not the dismissal of the plaintiff by the respondent was in accordance with the provision of rule 04107 of the Civil Service Rules.

2.
Whether the plaintiff is not entitled to be fully restored to the office of Principal Accountant in the Rivers State Civil Service with all the entitlements accrueable during the period of his dismissal.”

Thereafter, the appellant gave evidence on his own behalf stating how the safe where he kept some money in the office was broken into and the sum of about N32,000.00 was stolen. He reported the matter to the police and to the Permanent Secretary, Ministry of Works and Transport. The Accountant-General set up a Board of Inquiry which investigated the matter and the appellant testified before that board. The report of the board is Exh. E.

On the 28th of May, 1986 he received a letter from the respondent quering him as per Exhibit B. He replied that letter as per Exhibit D. Thereafter he was served with a letter of dismissal, Exh. C dated 27th day of August, 1986. He said that his dismissal did not comply with the Civil Service Rules especially rule 04107. He therefore wanted the court to grant him the reliefs sought for in his statement of claim.

The respondent called one witness, DW1 Prayer Amadi who gave evidence that the appellant was queried in Exh. B by the Civil Service Commission. He replied the query in Exh. D and was dismissed in Exh. C.

722
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21 January 2002
(Ogebe, J.C.A. )

A

B

C

D

E

F

G

H

After addresses by counsel on both sides, the learned trial Chief Judge, Ungbuku, dismissed the appellant’s claim on the ground that the appellant did not prove that he was not properly dismissed under the Civil Service Rules.

Dissatisfied with that decision the appellant had appealed to this court and in accordance with the rules of court filed a brief of argument and identified three issues for determination as follows:

“1.
Whether there was any legal basis for the learned trial Judge to go beyond the issues settled by his order and to condemn the appellant based on the evidence before the oard of Inquiry.

2.
Whether compliance with the financial instructions tantamounts to compliance with the Civil Service Rules or there is need for distinct compliance with each according to its provision.

3.
Whether the learned trial Judge properly and adequately summarised and evaluated the evidence before him, in the dispute between the appellant and the respondent before dismissing the appellant’s claim.”

The respondent did not file any brief and the appellant was granted leave to argue his appeal only on his brief.

On the 1st issue the learned counsel for the appellant argued that the trial court was wrong to go outside the issues in controversy settled by the court to decide the case. He said that the respondent did not carry out an independent investigation of the allegations against him before dismissing him, rather it relied purely on the report of the Board of Inquiry set up by the Accountant-General, and this was contrary to rule 04107 of the Civil Service Rules. He further submitted that the trial Judge was wrong to use the evidence at the Board of Inquiry as a basis for dismissing his case. He relied heavily on the case of the Federal Civil Service Commission v. Laoye (1989) 2 . (Pt.l06) 652.

I have read that case and the facts of that case are different from the present case. In that case the respondent was working with the Ministry of External Affairs and was accused of fraud. He was queried by the Ministry and he replied to the query and without any query from the Federal Civil Service Commission he was served with a letter of dismissal based on the query issued by the Ministry of External Affairs and his dismissal was found to be wrongful by the trial High Court and this was confirmed by the Court of Appeal and

[2002] 1 .
Iderima v. R.S.C.S.C.
(Ogebe, J.C.A. )
723

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B

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the Supreme Court.

In the present case the appellant was given a query by the Civil Service Commission and he replied to that query before he was dismissed. His main argument is that the Civil Service Commission should have set up another independent panel to investigate the allegations against him other than the Board of Inquiry set up by the Accountant-General.

This argument has ignored his own averment in paragraph 25 of the statement of claim which reads:

“25.
On the 30th December, 1985, the Accountant-General Ministry of Finance and Planning, Treasury Division, Port Harcourt, set up a Board of Inquiry to determine the correct amount of loss, identify the cause, the persons responsible for the loss and recommend disciplinary or preventive/remedial measures.”

Paragraph 25 of the statement of claim was admitted in para. 5 of the statement of defence which means that it does not require any further proof. From para. 25 of the statement of claim, the Board of Inquiry was not only to determine the correct amount of the loss but also to apportion blame on the persons responsible and recommend disciplinary or preventive remedies. The appellant cannot therefore complain that the respondent was wrong to use this report in dismissing him. ThereportoftheBoardoflnquiryisExhibitE. It was tendered as an exhibit before the trial court and the trial court had duty to look at it to determine whether or not the appellant was properly dismissed. The appellant appeared before this board and testified. The appellant gave evidence that he saw the report before he sent his representation to the query of the respondent even though he was not formally served with the copy.

In my view the appellant had every opportunity to defend the allegations against him before he was dismissed. Even though the appellant was working in the Ministry of Works and Transport, he was accountable to the Accountant-General who was the Head of his department. The Accountant-General setup the Board of Inquiry and passed the result to the Civil Service Commission. This was substantial compliance with rule 04107 of the Civil Service Rules which reads:

“(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

724
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21 January 2002
(Ogebe, J.C.A. )

A

B

C

D

E

F

G

H

(which day must allow a reasonable interval for the purpose) any ground 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 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 Federal Public 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.”

On the 2nd issue the appellant is complaining of non-compliance with the Civil Service Rules. I have already held that there was substantial compliance with the Civil Service Rules. There is no need therefore to repeat the argument under issue 2.

On the 3rd issue the appellant is still complaining that the board of inquiry set up by the Accountant-General is distinct from the inquiry required under rule 04017 of the Civil Service Rules.

My reply is that the appellant averred that board of inquiry was set up among other things for the purpose of disciplinary action. He cannot now insist on another panel of inquiry. In my respectful view, if an inquiry has already been conducted by a responsible Government Department and placed before the Civil Service Commission and the Commission is satisfied with the report and issues a query based on that report to the officer and the officer replies, there is no need for another separate inquiry.

From all I have said in this judgment, I am satisfied that the trial Judge was right in dismissing the appellant’s claim. The little mistake the court made towards the end of the judgment in treating the matter as if it was a simple case of master and servant instead of

[2002] 1 .
Iderima v. R.S.C.S.C.
(Ikongbeh, J.C.A. )
725

A

B

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D

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              a case of public officer whose appointment has a statutory flavour has not seriously affected the merit of the case. Consequently, I see no merit in this appeal and I hereby dismiss it. I make no order as to costs.

PATS-ACHOLONU, J.C.A.: I have read in draft the leading judgment and I agree. There is no merit whatsoever in the appeal. I too dismiss the appeal and abide by the costs made thereunder.

IKONGBEH, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Ogebe, JCA. I agree with his reasoning and conclusion.

The insistence that the appropriate authority should comply with the civil service rules before dismissing a Civil Servant is not just for its own sake. It is to ensure that such civil servant gets a fair hearing as commanded by the Constitution. If it is established that the dismissed civil servant got a prior fair hearing it will be sheer legalism to declare his dismissal wrongful merely because every letter of the civil service rules has not been followed.

I too would dismiss this appeal. I abide by all the consequential orders.

Appeal dismissed.

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