Civil Service and Public Service

Public Service

The Nigerian Public Service originated from colonial administration. The Public Service operates under the philosophy of good governance and transparency. Public service thus includes the Civil Service and Public Corporations. Owing to the Civil Service reforms, public corporations have become privatized. The Public Service is a broader concept than the Civil Service. The Public Service includes the Civil Service, Armed Forces, Parastatals, etc. Not every Public Servant is a Civil Servant, but every Civil Servant is a Public Servant.

The Public Service is established by section 169 of the 1999 constitution. The government, which operates Public Service, goes about their activities of making subsidiary laws and executing them through MDAs. The Civil Service consists of the several ministries, being a subsidiary under the Public Service. The Public Service contains the Civil Service, Armed Forces, Judiciary, Statutory Corporations, etc. which are owned and finances by government both at State and Federal level.

Most public service organizations are service oriented, rather than profit oriented (See Part 1 of the Fifth Schedule to the Constitution, Paragraph 19). Whenever "public service" is given to private institutions to control, regulatory bodies are usually established to control these private providers of services e.g. NCC, NERC, etc. These bodies are established in order to prevent these private institutions from exploiting the citizens owing to their profit-oriented status.

Civil Service

Section 318 defines the concept of Civil Service as follows:

"civil service of the Federation" means service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the government of the Federation assigned with the responsibility for any business of the Government of the Federation;

"civil service of the state" means service of the government of a state in a civil capacity as staff of the office of the governor, deputy governor or a ministry or department of the government of the state assigned with the responsibility for any business of the government of the state.

In the case of Alhaji Mohammed v Permanent Secretary, Borno State, the court described the civil service as a permanent body of officials that execute government policies. The time in office of a civil servant is not determined by the tenure of the president or governor. The civil service is meant to be an independent body. Section 206-210 of the Constitution states the existence of the Civil Service at Federal and State level.

The Civil Service is made up of ministries headed of a minister officially. Specifically, it is the permanent secretary who heads the activities of ministries, all subject to disposition of the President. The permanent secretary is usually a senior civil servant, and not a political appointee like a minister, and has experience needed.

The civil service has a perpetual nature, and so the civil service is endowed with some characteristics: Permanence, Anonymity, Neutrality, Impartiality, Technical-Know-How and Capacity. The civil service works under specific rules e.g. Code of Conduct. The civil service is made up of permanent officials, unlike the government which changes periodically.

Programme implementation, advice, policy formulation, programme planning, drafting bills, budget preparation and quasi-judicial function. Section 172-173 guarantees certain rights to Judges in the Civil Service e.g., their right to receive pensions receivable every five years. These sections also state that Civil Servants must conform to provisions of the Code of Conduct.

The Civil Service is a constitutional creature and so it carries a legal personality and so, can sue or be sued.

Differences between the Civil Service and the Public Service

According to Professor Smith in "Constitutional and Administrative Law", a civil servant is a government or crown servant other than the holder of a political office, judicial office or member of the armed forces that is appointed directly or indirectly by the Crown and is paid out of funds provided by parliament and employed by a department of government. In the case of Great Western Railway v Batter (1923) however, a public servant was described as one who occupies an office independent of his person. He is also any person who is employed and paid from the public revenue.

Also, the public service is broader than the civil service. It not only includes ministries, but statutory corporations also.

Legal Nature of Employment in the Civil Service and the Public Service

Looking at the common law and the modern position we have now, the common law position was that a public servant under the British crown, whether serving in military or civil capacity, holds no tenure. He holds his employment at the discretion of the crown, and this makes the employment relationship worse than the normal Master-Servant relationship. This notion was laid down in the case of Dunn v The Queen and in Shelton v Smith (1985). This was based on public policy that such employment in a public service is for the public good, and so such employment should cease to exist when the public service does not perform this function anymore. This justifies the common law rule in giving discretion to the Crown to hire and fire.

There were certain consequences of this common law position. For instance, public servants were inevitably removed without fair hearing or fair trial. Also, such dismissed public servants could not sue for specific performance or damages. In the case of Terrel v Secretary of State for the Colonies however, it was seen that some Public servants held office with good behaviour and could only be removed with good cause to be given notice of.

In relation to Nigeria, since we were colonies of the UK, we accepted the common law position due to historical relations. Since the rule was from a Statute of General application, it became applicable automatically. As a result, a lot of cases came up before the courts were in favour of the common law positions. In the case of Markins v Federal Admin. General, the court reaffirmed the rule as the applicable law in Nigeria relating to legal status of employment for public servants. In this sense, public servants held their offices at the pleasure of the State. This ran until the Supreme Court drastically changed the rule in the case of Shitta Bey v Federal Public Service Commission.

In that case, the Plaintiff obtained a declaration from the High Court of Lagos that his removal from office as a Federal Adviser in the Federal Ministry of Justice was not in accordance with Civil Service Rules. Despite this, the Public Service refused to reinstate him. The Court of Appeal gave approval to the stand of the public service in their refusal. The Supreme Court however took the view that the civil service governs the condition of service of public servants and these rules were made under powers conferred on the Federal Public Service Commission by virtue of section 160(1) of the 1963 Constitution. The Supreme Court therefore held that the rules have constitutional force and they vest the public servants with legal status which makes the relationship between public servants and the public service one going beyond mere Master-Servant relationship.

The terms of contract of employment stand governed by the statute enabling the existence of the public service (the modern rule) and not the State like before. The court then held that the appellant be reinstated since his employment should not have been terminated without recourse to Civil Service rules. Thus, in modern times, employments are statutorily flavoured. This has been applied in cases such as Olaniyan v UNILAG, adeniyi v Governing Council, Yabatech, inter alia.

The Legal Significance of the Modern Law position

A servant with legal status is protected by statute where the office which he occupies is specifically created and reinforced by a statute creating the office. In the case of P.C. Imoloame v WAEC, Karibi Whyte JSC stated the position when he said there is an employment with statutory flavour when the appointment and provision is subject to statutory enactment as in Olaniyan v UNILAG and said that an employment with statutory flavour arises when the body employing the servant is under some statutory restrictions as to the kind of contract which he makes with the servants or the grounds on which he can dismiss them.

Besides the above, a Statutory body can enter into an employment contract with an employee which creates a legal status outside those of Civil Service rules. An employment can thus be terminated only in the manner prescribed by the enabling statute or contract pursuant to it. A breach of the laid down procedure cannot give rise to a valid repudiation of the employment contract and this was the case in Shitta Bey v FCSC. The employment of public servants cannot be terminated without due notice. In such a case, misconduct or other causes would have to be alleged or proved before such termination can be held valid.

Another significance is that there is the right to fair hearing for the public servant before his termination is determined. Thus, the principles of natural justice dictates that the public servant cannot be dismissed without notice of cause and without him being allowed to defend himself against such causes. When the public servant, as part of his entitlement, takes such a civil case to court, he is not only entitled to damages in the event of unlawful termination of employment like the ordinary servant, but also other legal remedies such as specific performance, mandamus, order of reinstatement. The amount of time for reinstatement varies based on the provisions of the enabling act. Public servants are also protected by the Public Officers Protection Act [section 2(a)]. There must also be a notice given to public servants before taking them to court.