The Appellant was an employee of the Respondent, serving as a Senior Manager. Sometime in 1986, while he was the Principal of the Respondent’s Training School in Kano, an 11 KVA switch panel got missing under his watch. The loss of the switch panel was reported to the Police, and the prosecution of the Appellant and other suspects commenced. It was during the pendency of the trial, that the Appellant was dismissed from the employment of the Respondent. Prior to his dismissal, the Respondent had set up an investigation panel, to investigate the loss of the switch panel and various other allegations of official impropriety and corruption at the Respondent’s Training School, during the Appellant’s headship of the Respondent’s Training School. The Investigation Panel turned in a report in which the dismissal of the Appellant was recommended, and he was consequently dismissed.
Aggrieved, the Appellant filed an action at the Kano State High Court, challenging his dismissal on the grounds that it was unconstitutional, null and void. He also sought his reinstatement, and the payment of his entitlements. In proof of his case, the Respondent pleaded his employment history with the Federal Civil Service up to when the Respondent was established in 1985, at which point, the Respondent and other employees of the defunct Post and Telegraph Department, were given the option of remaining in the Federal Civil Service or moving over to the Respondent, and they exercised the option of moving over to the Respondent. The Appellant claimed that his movement to the Respondent was a continuum of his employment with the Federal Civil Service, hence his employment with the Respondent was governed by the Federal Civil Service Rules.
After taking evidence from both parties, the trial court gave judgement in favour of the Appellant, and ordered his reinstatement into the Respondent’s employment and the payment of his entitlements, from the date of his dismissal up to the date of his reinstatement. Dissatisfied, the Respondent appealed to the Court of Appeal which upheld the appeal. Further to this, the Appellant appealed to the Supreme Court. The parties filed and exchanged their respective briefs of arguments, in which they distilled issues for determination.
The Respondent also raised a preliminary objection, in which it challenged the Appellant’s additional grounds of Appeal Numbers 4, 5 and 6, and the issues derived therefrom. The Respondent argued that the Appellant failed to seek and obtain the leave of court before raising the said grounds, which it alleged were grounds of mixed law and fact. The Appellant argued that it obtained the requisite leave of court, before filing the said additional grounds of appeal. The Court held that, the Appellant indeed, sought and obtained leave of court on 26th February, 2008 in respect of the additional grounds of Appeal. The Court however, held that the Appellant’s additional Ground 6 was a fresh issue which did not emanate from the judgement of the lower court, and which the Appellant failed to obtain leave to raise as such. The Court held that, a party who seeks to file and argue a fresh issue which was not canvassed at the lower court, whether the issue pertains to law or procedure, must seek and obtain the leave of court first, else such an issue must be struck out. Consequently, while the Court allowed the Appellant’s additional Grounds 4 and 5, it struck out the Ground 6 and the issues formulated therefrom. The Court thereafter, proceeded to determine the issues which were competently before it.
ISSUES FOR DETERMINATION
1. Whether the Appellant by virtue of Section 277(1) of the Constitution of the Federal Republic of Nigeria 1979, is not a civil or public servant.
2. Was it of any consequence, that the Appellant was dismissed by the Respondent during the pendency of the criminal trial?
On the 1st issue, counsel for the Appellant submitted that, based on the evidence adduced by the Appellant which included his letter of employment into the Federal Public Service, the Appellant was a civil servant governed by the Civil Service Rules, and whose employment enjoyed statutory flavour.
Counsel for the Respondent argued conversely that, having opted to transfer his service from the Civil Service to NITEL, the Appellant was no longer a civil servant, but was a private employee governed by the Respondent’s conditions of service.
On the 2nd issue, counsel for the Appellant argued that, there was ample evidence that the Appellant was charged to court on the allegation of theft, and without waiting for the outcome, the Respondent dismissed him on the basis of the said allegation. He further argued that, it was illegal and unconstitutional for an administrative panel constituted by the Respondent to inquire into, investigate a criminal offence and recommend punishment, as the panel constituted by the Respondent had done in the instant case.
Counsel for the Respondent submitted that, the Appellant was not dismissed based on the issue of theft, but on his negligence, dishonesty and misconduct. He argued that, the lower Court was right to hold that the Respondent ought not to have waited for the criminal charge to end before dismissing him, as this would have been injurious to the Respondent’s Training Institute which the Appellant was in charge of.
On the 1st issue, the Court relied on its decision in OKOMU OIL PALM COMPANY LTD v ISERHIENRHEN (2001) 6 NWLR (Part 710) 660 @ 686 and held that, a limited liability company incorporated under the Companies and Allied Matters Act or any other law under which such company is registered, whether owned by the government or the private sector, is governed by its rules and conditions of service and not by the Civil Service Rules. The court held that, although the Respondent is wholly owned by the Federal Government of Nigeria, it remained a limited liability company with its own set of service rules and regulations, binding its employees separately from that of the Federal Civil Service. The Court held that, having voluntarily exited the Federal Civil Service when he opted to join the Respondent at its inception in 1986, the Appellant could no longer enjoy the protection of employment with statutory flavour under the Federal Civil Service Rules, as the Respondent, though owned by the Federal Government, was not part of the Federal Civil Service.
On the Appellant’s reliance on the definition of “Public Service of the Federation” in Section 277(1) of the 1979 Constitution, to buttress his contention that the Respondent is a public corporation owned by the Federal Government hence the Appellant was not in a private organisation, the court again relied on its decision in OKOMU OIL PALM COMPANY LTD v ISERHIENRHIEN (Supra) in which it held that, the classification contained in the said provision is not intended to be a general definition for all purposes, but is for the purpose of code of conduct of any person coming within it, to see that such person can be controlled by the Government in the way he acquires wealth and conducts himself in public affairs. It does not necessarily bring the person, under the authority of the Federal Civil Service Commission.
On the 2n d and 3rd issues which were decided together, the Court relied on its decision in ARINZE v FIRST BANK OF NIGERIA PLC (2004) 12 NWLR (Part 888) 663 that, in private employment, the employer can dismiss in all cases of gross misconduct. The Court held that, from the findings of the court below, the Appellant was dismissed based on other issues of misconduct and negligence which bordered on incompetence found against him by the Committee set up by the Respondent, to investigate the management of the Respondent’s Training School, and not necessarily on the issue of theft which had been reported to the Police.
Christopher Oshomegie Esq. with Felix Ipogah Esq., Emmanuel Ezeifedikwa Esq. and Chinwe Ohadinma Esq. for the Appellant
M. O. Liadi Esq. with Ime-Edem Nse Esq. and Emmanuela Osifo Esq. for the Respondent