In The Supreme Court of Nigeria
On Friday , 27th day of April, 1990
SC 207/1988
Between
Osita C. Nwosu ....... Appellant
And
Imo State Environmental Sanitation Authority & Ors. ....... Respondents
Judgment of the Court
Delivered by
Philip Nnaemeka-Agu
This is a further appeal to this Court against the judgment of the Court of Appeal, Enugu Division, coram: Olatawura, Onu, and Omosun, JJ.C.A. That court had dismissed the appeal of the plaintiff, Osita C. Nwosu, against the ruling of an Owerri High Court, per Chianakwalam, J., that his jurisdiction to entertain the plaintiff's suit had been ousted by Decree No.17 of 1984.
Plaintiff's claim before the High Court was finally amended by his amended statement of claim dated the 22nd day of May, 1986. For purposes of this judgment, I shall rely on the amended statement of claim set out at pages 131 to 136 of the record.
The salient points in the statement of claim could be summarized. The plaintiff averred that he was a civil servant and chief executive of the 1st defendant. He was appointed a civil servant in May, 1965, became secretary of the 1st defendant on 12/9/80, and its General Manager/Chief Executive from 2/2/82.
On 12/2/82 the 3rd defendant directed the plaintiff to proceed on leave because a junior staff of the 1st defendant had petitioned against the plaintiff for misconduct. The leave had been extended twice. During the period a 5-man ministerial panel under the chairmanship of the 4th defendant was appointed to investigate the allegations in the petition. Several witnesses had been called; but the plaintiff was not called to give evidence. Another panel, an audit panel was also set up under the chairmanship of the 3rd defendant. But it did not find anything against him. As his leave was being extended still, he had to petition the Military Governor. Suddenly, on 15th June, 1985, he saw an advertisement in the Nigerian Statesman, signed by the 2nd defendant, for the post of General Manager of the 1st defendant, even though he had not been dismissed or his appointment terminated. His petitions and letter to the Military Governor inquiring whether he had been dismissed/terminated were not replied to. It was only in an application after he had instituted this action that a purported letter of his dismissal was exhibited; but none had been served upon him before then. The said dismissal was without any query and contrary to the opinion of the State Ministry of Justice. In paragraph 17 he amended his claim thus:-
(l7) Wherefore the plaintiff claims against the defendants jointly and severally:
(1) A declaration that the appointment of the plaintiff as General Manager of Imo State Environmental Sanitation Authority is still valid and subsisting.
(2) An order of court on the 1st, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him from June, 1986 till date with immediate effect.
(3) An order of court setting aside the continuing compulsory leave imposed on the plaintiff by the 3rd defendant as being wrongful and ultra vires the powers of the 3rd defendant.
(4) An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever directly or indirectly, preventing the plaintiff from resuming his duty as General Manager of the Imo State Environmental Sanitation Authority.
Thus, from the plaintiff's own showing -
(1) He was a civil servant as well as the General Manager of the Imo State Environmental Sanitation Authority (hereinafter called the Authority).
(2) He was aware that a letter of petition had been written against him by a staff of the Authority alleging certain acts of impropriety and imminent collapse of the Authority.
(3) He had been sent on indefinite leave pending an administrative inquiry into the allegations.
(4) He denied ever knowing that he had been dismissed from the service.
All the five defendants filed a joint statement of defence. They joined issues with the plaintiff on the above averments. It was averred therein that the plaintiff was merely seconded as General Manager of the 1st defendant from his post in the Ministry of Health. It was pleaded that the 3rd defendant sent the plaintiff on compulsory leave in order to enable him carry out the directive of the Military Governor to investigate the allegations against the plaintiff in the petition. The plaintiff was given the opportunity to meet the case against him. In paragraphs 9, 10, 13, 14 and 21 of the statement of defence, it was pleaded as follows:
(9) In answer to paragraphs 8 of the statement of claim the defendants state that the Panel was set up in accordance with Decree No.17 of 1984 and the directive of the Military Governor to whom the outcome of the investigation was submitted.
(10) In further answer to paragraph 8 of the statement of claim, the defendants state that the Military Governor directed that the plaintiff be dismissed and this was accordingly communicated to the plaintiff. Letter No. 5S.96[f.l/7 of 5th June, 1985 is pleaded and the plaintiff is hereby given notice to produce this letter. . .
(12) In further answer to paragraph 10 of the statement of claim the defendants state that on 24th June, 1985, an officer of the Ministry of Health, the plaintiff's present Ministry was sent to the plaintiff's house to deliver personally the dismissal letter to the plaintiff and could not do so as the plaintiff was not in. The wife of the plaintiff who was present refused to sign for the letter as she claimed that she had definite instructions from her husband not to sign any letter on his behalf. The Ministry of health's Despatch Book is hereby pleaded and will be relied upon at trial.
(14) In further answer to paragraph 10 of the statement of claim the defendants state than on 26th June, 1985 another attempt was made by an officer of the Ministry of Health in company of two Police Escorts to serve the dismissal letter on the plaintiff in his house. This time the plaintiff was in but refused to receive the letters ...................
(21) The defendants will further plead at the trial, lack of jurisdiction on the part of this Honourable Court to try the case in view of the Public Officers (Special Provisions) Decree 1984 Decree No. 17 of 1984 by virtue of which the plaintiff cannot maintain an action on breach of natural justice.''
After the close of pleadings, the learned counsel for the defendants filed a motion on notice asking the court to strike out the suit on the ground that it lacked jurisdiction to entertain the same since the court's jurisdiction had been ousted by Decree No.17 of 1984. In support there was an affidavit of 12 paragraphs sworn to by one Christopher Ugwunna Ohaja, Acting General Manger of the Authority. In paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit he deposed as follows-
(5) That following a petition dated 14th December, 1984 which is exhibited and marked Exh. B', the Military Governor directed an Internal Management Audit Panel into the affairs of the Environmental Sanitation Authority by letters SGI/S.0024/2/II/227 of 1st February, 1985 which letter is exhibited and marked Exhibit C'.
(6) Following the directive in Exhibit 'C', the Commissioner for Local Government set up an Internal Audit Management Panel into the affairs of the Environmental Sanitation Authority, appointed members of the Panel and gave them the terms of reference - vide letter MLG/COMIS.290/142 of 13th February, 1985 which is exhibited and marked Exhibit 'D'. The panel sat, took evidence from all persons concerned or aggrieved including plaintiff/respondent, and submitted its report to the Commissioner for Local Government who then forwarded the Report to the Military Governor.
(7) The plaintiff/respondent duly testified and answered to allegations made against him before the panel.
(8) In paragraph 2.1.2 of the Report the panel found as follows: 'On the imminent collapse of the Authority, the Panel is satisfied that evidence abound and that if nothing concrete and meaningful was done, the Authority would undoubtedly collapse.'
(9) The Governor studied the Report and by his letter No. GR/PS.263/294 of 9th May, 1985 directed that the plaintiff/respondent be dismissed. The said letter is exhibited and marked Exhibit 'E'.
(10) The dismissal was duly communicated to the plaintiff/respondent by letter SS.96/T.1/7 of 5th June, 1985 which letter is exhibited and marked Exhibit 'E'.
(11) That the Military Governor acted to improve and reorganise the Authority along the lines decided by the Executive Council of Imo State.
(12) That I am informed by Counsel L.C. Alinnor Esq., Legal Adviser, Ministry of Justice, Imo State and I verily believe same that the action taken by the Military Governor is covered by Decree No.17 of 1984 and that no civil proceedings can lie in any court in respect of that action.
Again, those documents were exhibited to the affidavit and numbered A to E. But I need only copy those which I consider relevant to the issues that arise in this appeal. Exhibit "A" was a letter of appointment of the plaintiff to the post of General Manager. It reads as follows-
Government of Imo State of Nigeria
Ministry of Housing and Environment
Commissioner's Office Division
Owerri
Our Ref: MHE/ENV./S.4/55
2nd February, 1982
Mr. Osita Christian Nwosu, Environmental Sanitation Authority, C/o. Ministry of Housing & Environment, P.M.B. 1543, Owerri.
Appointment of the General Manager Environmental Sanitation Authority
I wish to convey to you His Excellency, the Governor's directive to the effect that you be appointed the General Manager of Imo State Environmental Sanitation Authority. The appointment is with effect from 1st February, 1982. Other details of your appointment will be conveyed to you through the Authority's Board.
2. It is hoped that you will live up to expectations for your high office. Accept my hearty congratulations.