Labour Law

• Pages: 1126-1316

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LABOUR LAW.

APPOINTMENT OF AN EMPLOYEE.

Can appointment to office where there is no vacancy be valid? “You cannot place something

on nothing and expect it to stand. It will fall like a pack of cards. Per Lord Denning inMacfoy v.

U.A.C.(supra). An appointment to a post where there is no vacancy is no appointment.”– Per

Ogunwumiju, J.C.A., in Okungbowa v. Gov., Edo State Suit No. CA/B/324/07; (2015) 10

N.W.L.R. (Pt. 1467) 257 at 302.

How appointments to the Federal Civil Service are made. (1) Rule 02101 provides: -

“Appointments to Public Office of the Federal Civil Service are made on the authority of the Federal

Civil Service Commission either by a letter written by the discretion of the Federal Civil Service

Commission or by formal agreement between the Officer and the Federal Government or its appointed

agents.The Rules further provide that subject to Rules 02205to 02207, Permanent Secretaries/Head or

Extra Ministerial Departments are authorised to appoint eligible candidates to posts in respect of which

the powers of appointment have beendelegated to them.”– Per Abba-Aji, J.C.A., in F.M.C., Ido-

Ekiti v. Alabi Suit No. CA/EKT/23/2010; (2012) 2N.W.L.R. (Pt. 1285) 411 at 442. (2) “By the

evidence of the respondent as corroborated by the appellants’ testimonies, the 1st appellant is an agency

of the Federal Government of Nigeria under the Supervision of the Federal Ministry of Health, the 3rd

appellant. That being the status of the 1stappellant, therefore this 1stappellant is an extra Ministerial

Department of the Federal Government and by that status it is conferred by law with the delegated

power of appointment of officers of its centre. The 1st appellant has therefore, by necessary implication

adopted the Public Service Rules as the condition of Service governing the appointment of their staff

as applicable in cognate institutions within the Federal Public Service of the Federation.”– Per Abba-

Aji, J.C.A., in F.M.C., Ido-Ekiti v. Alabi Suit No. CA/EKT/23/2010; (2012) 2N.W.L.R. (Pt.

1285) 411 at 443.

How members of Staff of Local Government are appointed. “Members of staff of Local

Government are statutorily appointed by the Local Government Service Commission.” – Per Okoro,

J.C.A., in Nadabo v. Dubai Suit No. CA/K/EP/NA/29/2008; (2011) 7 N.W.L.R. (Pt. 1245) 155

at 172.

Implication of the power to hire or appoint. “Members of staff of Local Government are

statutorily appointed by the Local Government Service It appears that the axiom, the power to

appoint is the power to remove, is supported by Interpretation Act. Section 11(1) of the

Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990 provides as follows:

- “11(1) where an enactment confers a power to appoint a person either to an office or to

exercise any functions, whether for a specific period or not the power includes: (a) --(b)power

to remove or suspend him.”It follows from the above that the removal of the appellant by the

respondent's board which appointed him is covered by the above provision. The invocation of

the principle of the power to 'hire' is the power to “fire” by the learned trial Judge is supported

by the statutory provisions. The directors of the respondent employed or appointed him; that

body, therefore, has reciprocal power to remove him. The Articles of Association, to my mind,

is a subsidiary legislation made pursuant to Companies and AlliedMatters Act.” – PerSalami,

J.C.A., in Longe v. F.B.N. Plc Suit No. CA/L/492/2003; (2006) 3 N.W.L.R. (Pt. 967) 228 at

273.

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Right of employee to salary and emolument. “I hold that there is nothing to show that the

appointment of the cross-appellants have been dispensed with, and as such their appointment is still

subsisting, with all the accrued salaries and emoluments.” – Per Pemu, J.C.A., in N.B.C. Plc v.

Edward Suit No. CA/L/679M/2006; (2015) 2 N.W.L.R. (Pt. 1443) 201 at 235.

CIVIL SERVICE RULES.

Effect of Civil Service Rules on the employment of civil servants. “InShitta-Bey v. F.P.S.C.

(supra) Idigbe, J.S.C.stated at page 56 that: "The Civil Service Rules of the Federal Public

Service govern conditions of service of Federal Public Servants and they aremade pursuant to

the powers conferred on the respondent by virtue of the constitutional provisions in the 1963

Constitution; and the rules relevant to these proceedings were made in 1974,pursuant to the

provisions of section 160(1) of the 1963 Constitution Act, No. 20 of 1963. These Rules,

therefore, in my view, haveConstitutional forceand they invest the public servant over whom

they prevail, alegal status:a status which makes his relationship with the respondent and the

government although one of master and servantcertainly beyond the ordinary or mere master

and servant relationship. Under these Rules (i.e. The 1974 Civil Service Rules which, as I

already pointed out, have statutory force and, therefore, ought to be “judicially noticed”,

paragraphs 04107 to 04121 provide the procedure whichmustbe adopted in the removal or

retirement from service, as well as the general disciplining, of public servants in the established

pensionable cadre.” –Per R.D. Muhammad, J.C.A., in Okota v. C.S.C. Edo StateSuit No.

CA/B/40/2000; (2004) 3 N.W.L.R. (Pt. 861) 494 at 509 - 510.

Effect of non-compliance with Civil Service Rules in disciplinary action against civil

servants. (1) “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 context 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) 2 N.W.L.R

(Pt.58)587; Olatunhosun v.NISER(1988) 3 N.W.L.R (Part 80)25. See also Sections 236 and

33(1) of the 1979 Constitution of Nigeria.” – PerOnu, J.S.C., in Iderima v. R.S.C.S.C. Suit No.

S.C. 45/2001; (2005) 16 N.W.L.R. (Pt. 951) 378 at 394. (2) “This Court, when faced with a

similar situation held that failure to investigate the allegation by the Civil Service Commission

itself amounted to a denial of natural justice. I refer tothe case ofFederal Civil Service

Commission v. Laoye(1989) 2 N.W.L.R (Part 106) 652at 683. This Court per Eso J.S.C noted

thus: “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.” This Court then dismissed the appeal by the Commission.” –

PerKatsina-Alu, J.S.C., in Iderima v. R.S.C.S.C. Suit No. S.C. 45/2001; (2005) 16 N.W.L.R.

(Pt. 951) 378 at 399. (3) “Although the Civil Service Commission had not followed the

procedure prescribed under Civil Service Rule 04107, it stated that it was dismissing the

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plaintiff in accordance with the said rule 04107. When the procedure, prescribed under Rule

04107, is contrastedwith the procedure adopted in dismissing the plaintiff from Service, it is

seen that the relevant rule was not followed. Rather, the principle of fair hearing was clearly

not followed. When the plaintiff/appellant made appearance before the Board of Inquiry set up

by the accountant-General, he went there as a witness and not as a person being accused of any

wrong doing or misconduct. When the report of the Board of Inquiry was ready, the plaintiff

was not given a copy thereof to enable him react to any adverse comments contained therein

against him. Although, the plaintiff had not been enabled, to react to the contents of the report

of the Board of Inquiry, the Civil Service Commission in deciding to dismiss the plaintiff relied

on the contents of the report.” – PerOguntade, J.S.C., in Iderima v. R.S.C.S.C. Suit No. S.C.

45/2001; (2005) 16 N.W.L.R. (Pt. 951) 378 at 413 - 414.

Effect where civil servant absconds from duty. Paragraph 4202 of the Federal Civil Service

Rules provides as follows: "Any officer or employee who absents himself fromduty. without

leave renders himself liable to bedismissed from service without formality and the onusshall

rest on him to show that the circumstances do notjustify the imposition of the full penalty.”–

PerTobi, J.S.C., in Udegbunam v. F.C.D.A. Suit No. S.C. 81/1999; (2003) 10 N.W.L.R. (Pt.

829) 487 at 502 - 503.

Nature of Civil Service Rules and effect thereof on employment of civil servant on

pensionable cadre. “In the first place, it cannot be forgotten or overlooked that the appellant

was a very senior civil servant in the established pensionable cadre. His status qualified him to

be disciplined and or dismissed only in accordance with Rule04107. InBashir Alacle Shitta-

Bey v. The Federal Public Servi ce Commission(1981) 1 S.C q 26 (Reprint) at page 35-36, this

Court said of the status of senior civil servant on a pensionable cadre and Rule 04107: “The

Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public

Servants and they are made pursuant to the powers conferred on the respondent by virtue of

the Constitutional provisions in the 1963 Constitution; and the rules relevant to these

proceedings were made in 1974, pursuant to the provisions of Section 160 (1) of the 1963

Constitution, Act No. 20 of 1963. These Rules, therefore, in my view,have Constitutional force

and they invest the public servant over whom they prevail, a legal status; a status which makes

his relationship with the respondent and the government although one of master and servant

certainly beyond the ordinary or mere master and servant relationship. Under these Rules (i.e.

the 1974 Civil Service Rules which, as I already pointed out, have statutory force and,

therefore, ought to be 'judicially noticed') paragraphs 04107 to 04121 provide the procedure

which must be adopted in the removal or retirement from Service, as well as general

disciplining of public servants in the established pensionable cadre” – PerOguntade, J.S.C., in

Iderima v. R.S.C.S.C. Suit No. S.C. 45/2001; (2005) 16 N.W.L.R. (Pt. 951) 378 at 408 - 409.

Purport of regulation 02905 of the Lagos State Civil Service Rules. Regulation 02905 states

as follows:-“In any case which it appears to the commission to be desirable that a pensionable civil

servant who has held a pensionable appointment for at least fifteen years continuously or has attained

the age of forty-five years should retire or that the appointment of a contract officer should be terminated

before the expiration of the term of engagement stipulated in the officers agreement or that the

appointment of the holder of temporary appointment should be terminated, the commission may