IN THE COURT OF APPEAL (BENIN DIVISION)
UCHEOMO OMO JUSTICE, COURT OF APPEAL (Presided)
EMMANUEL, TAKON NDOA-EGBA JUSTICE, COURT OF APPEAL .(Read the Lead Judgment)
ISA AYO SALAMI JUSTICE, COURT OF APPEAL
FRANK E. A. OKORO APPELLANTS
1. DELTA STEEL COMPANY LTD. RESPONDENTS
2. PAT P. OKORO
NDOA-EGBA, J.C.A. (Delivering the Leading Judgment): In the substantive suit filed by writ of summons the plaintiff, who is plaintiff/respondent to the motion now being considered on appeal claimed against the defendant, herein referred to as the defendant applicant, as follows:
1. N100.000.00 (One hundred thousand naira) being damages for wrongful, unlawful and malicious dismissal of plaintiff on the 2nd day of March. 1984 as per defendants letter to the plaintiff on the same day at Ovwian-Aladja in Udu Clan within the jurisdiction of this Honourable Court.
2. A declaration that the purported dismissal of the plaintiff by the defendant is null and void.
3. An order of interim injunction restraining the defendants and their servants or agents or privies from quitting the plaintiff by force or by any other legal process from the house and premises at the Security Quarters of Delta Steel Township which plaintiff occupies as servant or tenant of the first defendant pending the determination of this suit.
4. An order of perpetual injunction to restrain their servants and agents and privies from quitting the plaintiff from the said house and premises occupied by plaintiff in the Security Quarters described under claim (3) above:
Pleadings were settled, filed and delivered in the main suit.
After the preliminary matters had been finally concluded, the defendant applicant filed a motion on notice under sections (1)(a)(d), 2(a)(b), 3( 1)(2)(3)(4) and (5) of the Public Officers (Special Provisions) Decree No). 17. 1984 of 31/12/83 and also under order 22(2)(3) Cap. 65 of the High Court (Civil Procedure) Rules, Laws of the Bendel State of Nigeria, 1976, praying the court below
for an order that the proceedings in this action are abated, discharged and made void because the action was instituted after the promulgation of the Public Officers (Special Provisions) Decree No. 17 of31/12/83, and for such further and any other orders as the Honourable Court may deem just to make in the circumstances.
The material paragraphs of the Better and Further affidavit sworn to in support of the application by an accredited representative of the defendant applicant read:
"2. That the 1st defendant/applicant is a corporate body established under a Federal Law by the Federal Republic of Nigeria whose operative base is al Ovwian/Aladja and it is owned by the Federal Government of Nigeria.
5. That at all material time to the cause of this action, I was a public officer, the Manager (Personnel Administration) under the employment of the 1st defendant applicant, but at present, i am in the Estate Management sector in the Estate Services Division of the Delta Steel Company limited.
6. That pleadings have been exchanged in this action.
7. That the plaintiff/respondent, at all material time to the cause of this action was a Public Officer under the employment of the 1st defendant applicant and was working in the Security Department of the internal security control at the premises of the 1st defendant/applicant at Ovwian/Aladja.
8. That I have carefully read and understood the contents of the summons to this action filed on 3O/3/84, the statement of claim filed on 19/7/84 and the statement of defence of both defendants filed on 4/6/85 and especially paragraph (2) of the statement of defence.
9. That our solicitor, Chief J.G. Bukata, informed me and I verily believe him, that under the provisions of the Public Officers (Special Provisions) Decree No. 17 of 31/12/83 that the proceedings in this action are abated, discharged and are made void.
10. That the plaintiff/respondent- a public officer -an employee of the 1st defendant applicant was written a letter of dismissal by the 2nd defendant applicant acting for the Acting General Manager who is also a public officer as well as the appropriate authority.
11. That at all material time to the cause of this action the said Acting General Manager of the 1st defendant/applicant had the authority and power to make any appointment, to remove, suspend, dismiss, re-appoint or reinstate any person or public officer who was an employee of the 1st defendant applicant.
12. That the letter of dismissal of the plaintiff respondent reference No. APA/B220/271/84 dated 2/3/84 signed by the 2nd defendant applicant for the Acting General Manager is herein attached and is marked Exhibit 'A',
14. That as at 3/10/79 the public officer as well as the appropriate authority in charge of the 1st defendant/applicant was called the Project Coordinator and the 1st defendant applicant was known then as Delta Steel Complex.
15. That the plaintiff/respondent a Public Officer and an employee of the 1st defendant/applicant was dismissed by his employer on 2/3/84.
16. That the action by the plaintiff/respondent against the two defendants/appellants is for wrongful, unlawful and malicious dismissal as pleaded by him.
17. That the general conduct of the plaintiff respondent as a public officer in relation to the performance of his duties has been such that his further or continued employment by the 1st defendant applicant in the relevant service would not be in the public interest and hence he was dismissed or removed summarily.
18. That reasonably believe that proceedings in this action have been frustrated by the operation of law, and as such, further continuation of this action is a gross abuse of court process in this Honourable Court."
In a counter-affidavit deposed to, opposing the motion, the plaintiff respondent swore:
''2. That I am familiar and conversant with the facts of the case.
3. That the motion paper filed by the defendants on 10/10/86 together with the attached affidavit hive been served on me and I have read and understood same.
4 That paragraphs I, 2, 5, 6 and 10 of the defendant/applicants' affidavit are true.
5 That paragraph 4 of the laid affidavit is true only to the extent that the 2nd defendant was the Manager (Personal Administration) under the employment of the 1st defendant.
6. That paragraph 8 of the said affidavit is false and misleading. The fact is that I was not dismissed in accordance with the Public Office (Special Provisions) Decree No. 17 of 31/12/83
7 That to support my assertion in Paragraph 6 above. I further stare as follows:-.
(a) That a letter from G.A.S. Longe (CFR), Secretary to the Federal Military Government reference No. SFMG.38/1 dated 7th February, 1984 spells out clearly the guidelines for the Removal or Retirement of officers from the Civil Service. The said letter and its annexures are hereto attached and marked Exhibit"A"
(b) That the aforementioned letter was forwarded to the Chief Executive of the 1st defendant/applicant via a letter reference Na.MMP,418/V.5/355 of 14th February, 1984 from the Ministry of Mines Power and Steel. The said letter is hereto annexed and marked as Exhibit "B
(c) That following the letter mentioned in paragraph 7 of counter affidavit the chief Executive of the 1st defendant/applicant in a letter ref. No. G/1000/38 of 16th February, 1984 set up two committees and I was a member of the committee. The said letter is hereto annexed and marked Exhibit C
(d) That by another letter issued by the 1st defendant/applicant reference NO G/1000/38 of 1st March, 1984, I was made a member of the second committee known as the Evaluation Committee. The said letter is hereto annexed and marked Exhibit D
(e) That the two aforementioned committees were to make comprehensive list of staff to be removed or retired from office u specified in Exhibit A."
8. That I was dismissed from the service of the 1st defendant applicant on the 2nd day of March, 1984.
9. That I know as a fact that my name was not in any list sent to the Supervising Ministry of the 1st defendant/applicant as one of those to be removed or retired from office.
10. That paragraph of the defendant & applicant affidavit is most untrue. The truth is that the satisfactory performance of my duties is evidenced by my appointment as member of the Collation and Evaluation Committees as shown in Exhibit C and "D."
13. That paragraph 13 of the defendant/applicants' affidavit is false as further continual of proceeding in this action is not in any way an abuse of the process of this Honourable Court.
14. That the application of the defendant/applicant was brought in bad faith."
From the affidavit evidence, it is not in dispute that the defendant/applicant is a corporate body established under a Federal Law by the Federal Republic of Nigeria whose operative base is at Ovwian/Aladja and it is owned by the Federal Government of Nigeria. It was also admitted that the plaintiff/respondent was at all material time a public officer under the employment of the 1st defendant/applicant. It was denied that the defendant/applicant had a solid defence to the plaintiff/respondents' suit but for the provision of the said Decree and that the action is an abuse of court process. The plaintiff/respondent did refute the face deposed to by the defendant/applicant that under the provision of the Public Officer's (Special Provisions) Decree No.17 of 31/12/83 that the proceedings in this action are "abated, discharged and are made void, although that aspect of the affidavit-evidence presumes argument of law. That being the crux of the application the procedural departure from section 84 of the Evidence Act may be overlooked in preference for the substance.
In a reserved Ruling, the learned trial Judge posed the following questions:
"(1) Was Exhibit" A" (the letter of dismissal) issued by the appropriate authority?
(2) Was (he respondent's dismissal in accordance with Decree No. A 17 of 1984?
(3) Does the interpretation law apply in view of section 3(2) of Decree No. 11 of 1984?
(4) Having regard to the authority in Wilson's case is Decree No. 17 of 1984 applicable to the matter of dismissal of the respondent?"
To each of the questions, my answer is in the affirmative. Accordingly, this application succeeds and proceedings in Suit No. W/44/84 are hereby abated discharged and made void.
It is on record that the appellant (now plaintiff/respondent/appellant) had through counsel and with leave of court applied to amend ground of the appeal appended to the notice of appeal to read thus:
"That the learned trial Judge erred in law and on facts when he held that Exhibit "A" attached to the appellant/applicant's motion (The plaintiff/respondent/appellant) was issued by the appropriate authority."
The periphery is mine.
It was indicated by learned counsel for the appellant that the particulars subjoined to the original ground of appeal No. 3 were still relevant to the amended ground of appeal aforementioned.
Pursuant to the rules of court, the parties to this appeal filed and exchanged their respective briefs or argument. Both parties also formulated and set out the issues for determination. These, I think, are variants expressed in different words, of the real questions for decision in this appeal. These, briefly, are:
(1) Was the letter of dismissal of the plaintiff/respondent/appellant, Exhibit A. issued by the appropriate authority within the contemplation of Decree No. 17?
(2) Whether the learned trial Judge was right in holding that the plaintiff respondent/appellants' action was caught by the provisions of Sections 1(a)(d), 2(a) and (b), 3(4) and (5) of the Public Officers (Special Provisions) Decree of 1984, hereinafter referred to as the Decree."
The efficiency, industry and the recommendations of the plaintiff/respondent/appellant by the defendant/respondent to this appeal in regard to the issues aforementioned are relevant only to the application in the determination of the substantive suit, depending on the outcome of this interloctory application nor is the application of the Civil Service Regulation are, at this stage, applicable. The submissions of counsel in that regard will, for the purpose of the matter under consideration be overlooked except in so far as they are relevant to the actual issues to be examined in the instant appeal
It was conceded for the plaintiff/respondent/appellant that the 1st defendant/respondent company has general power to either dismiss or terminate the plaintiff/respondent/appellant's employment, although that admission was qualified by learned counsel for the former that it can only do so upon reasonable grounds of any kind of gross misconduct. This aspect of the submission is, as aforesaid, pertinent in the consideration of the main suit and only in so far as it relates to the Decree No. !7 under which the defendant/applicant claimed to have dismissed the plaintiff/respondent. On the validity of Exhibit A (the letter of dismissal) which relates to appellant's issues numbers 2 and 6 with reference to ground 3 of the appeal, learned counsel for the plaintiff/respondent/appellant submitted that in accordance with section 4(2) of the Decree, the letter of dismissal aforementioned did not emanate from the appropriate authority. He remarked that it was not averred in the affidavit sworn to in support of the application under consideration that any such power was delegated by the President or Head of State to the General Manager of the defendant/respondent company to issue Exhibit A .Counsel then reiterated his submissions on that point at the hearing of the motion at the court below (see page 38 of the cyclostyled record, lines 6-33), and emphasised that only the President or Head of Slate could properly issue Exhibit "A", as he being the appropriate authority." Counsel argued that there were no documents produced and attached to the defendant/respondent's affidavit to substantiate the claim of the former that the plaintiff/respondent/appellant was dismissed under the Decree.
Continuing his submission, learned counsel argued further in support of the appeal, referring to his contention at the hearing of the motion (page54, lines 2S to 31, 38 to 42 of the records) contended that in the case of the plaintiff/respondent/appellant, the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council is the "appropriate authority. He also admitted in the course of his argument that the plaintiff/respondent/appellant is a staff of the 1st defendant/respondent company but maintained that Exhibit A" was not issued by the appropriate authority as defined in section 4(2) of the Decree. On this proposition, learned counsel relied on the decisions in A.I Wilson v. Attorney-General, Bendel State and 2 Ors. (1985) 2 S.C. 181 at 208, (1985) 1 NWLR (Pt.4) 572 and Saidu Garba v. Federal Civil Service Commission & Anor. (1988) 1 NWLR (P1.71) 449.
On the 3rd issue in the appellant's brief which relates to ground 4 of the appeal learned counsel submitted, on the authority of Wilson, supra, that the learned trial Judge did not avert his mind to the relevance of the said decision to the affidavit evidence in the present appeal.
He remarked that the submissions made on behalf of the plaintiff/respondent/appellant are pertinent only at the trial of the main suit and not to the application now being considered. He emphasised that Exhibit A" was issued by "the appropriate authority" who is the General Manager of the 1st defendant/ respondent company. Proceedings, he submitted, commenced on the 26th of March, 1984. The ouster clause of the Decree, counsel contended further, applied. He maintained his position that Exhibit A" was issued by the appropriate authority" and that the dismissal of the plaintiff/respondent/applicant was consistent with the Decree. He firmly supported the Ruling, contending that the Interpretation Law, Cap. 76, Laws of Bendel State was applicable and that the decision in Wilson, supra, is distinguishable in that the officer was dismissed after he had been retired. It is observed that the submissions of counsel for the defendant/respondent are not consistent with the issues he set out in the relevant brief for determination. However, all the issues will be considered together in view of the manner in which they are expressed and set out.
The letter of dismissal, Exhibit "A ", was signed for the 1st defendant/respondent, by the 2nd defendant/respondent who designated himself as the Acting General Manager of the company. The manner Exhibit "A" was couched leaves one in no doubt of the determination of the defendant/respondent to dispense with the Services of the appellant and, if necessary, employ the services of the police to retrieve the 1st respondent's property in his possession. That brings into question the good faith on the defendant/respondents part.
Before proceeding, I reproduce herein circular letter No.SEMG. 38/1 of 17th February, 1984 wherein the Head of the Federal Military Government (Major-General Buhari) expressed "great anxiety" at the way some public officers were being removed or retired, purportedly under the Decree. It reads:
"Removal or retirement of some officers from the Civil Service in the public interest
The attention of the Head of the Federal Military Government, Commander-in-Chief of the Armed Forces, Major-General Muhammadu Buhari has been drawn to the fact that rumors about an exercise being conducted for the removal of officer from the Federal Civil Service are causing great anxiety to civil servants. The Head of the Federal Military Government has directed me to confirm that an exercise is indeed going on to remove from the public service officers who it is considered no longer in the public interest to retain. I am to assure all public officers that the on-going exercise is not intended to be arbitrary or in the nature of a witch-hunt or to provide an opportunity for the victimization of any public persons.
2. On the contrary, the exercise is to be concluded along orderly lines. The guidelines are for the Federal Military Government to be satisfied that it is necessary to remove any officer summarily from his office where-
(a) an officer should have been removed from the service as a result of a disciplinary action which should have been concluded with despatch; or
(b) by reason of age or ill-health or due to any other cause further or continued employment of an officer would not be in the public interest.
3. The exercise is to be conducted through
(i) identification of suitable cases from within the Ministry; and
(ii) approval by the appropriate authorities through the Federal Civil Service Commission or the Minister of the Supervising Ministry.
4. In respect of Ministries/Departments will set up committees to conduct the; exercise and after due consultation with the Minister, submit the lists to the Federal Civil Service Commission for approval by the appropriate authorities. In respect of parastatals, the Chief Executive will set up committees to conduct the exercise and submit the list to the Minister of the Supervising Ministry for approval.
5. The exercise will be undertaken with despatch.
(G.A.E. Longe, OFR)
Secretary to the Federal Military Government."
The affidavit deposed to in support of the application is totally silent as to whether or not the guidelines aforementioned were complied with. Rather, the document was reproduced and annexed to the counter-affidavit as Exhibit A. It speaks for itself.
The effective date of Decree No. 17, herein referred to as the Decree was not restricted to the future. It is not controverted that the defendants/respondents application fell within the line the course of action arose and the "making of the Decree" nor was it disputed that the plaintiff/respondent/appellant was a public officer within the meaning of section 4(1) of it.
The intendment of the Decree is:
... in order to facilitate improvement in the organisation of the Department or service to which a public officer belongs."
It was enacted to improve efficiency, enhance productivity and rid the civil service structure of "corrupt practices." It was certainly not to operate in breach of existing contracts of employment or disrupt generally accepted conditions of service. The affidavit in support of the application did not show that the plaintiff/respondent/appellant was inefficient, unproductive or corrupt.
The general conduct of the plaintiff/respondent/appellant as a public officer in the employment of the 1st respondent, a Federal establishment,
"in relation to the performance of his duties has been such that his further and continued employment to the relevant service would not be in the public interest was not in issue in this motion.
is an issue of fact for consideration at the trial of the substantive suit on merit. It would be prejudging a pending matter on facts on a pretrial application. It is common knowledge that in certain matters in the course of the day to day administration of a company are considered for internal disciplinary action. Such matters, I am certain, cannot be accommodated within the ambit of the Decree and carried out in pursuance of it.
In a document verified as Exhibit "C"' in the affidavit evidence dealing with the "removal or retirement of public officers from the public service a series of directives from the Federal Government were received in the office of the 1st appellant/respondent. Collation Committee had been set up under the Decree to identify public officers who are unfit on grounds of poor rating, redundancy, age or on "some previously unidentified offence" to continue in service. According to the counter-affidavit sworn to in opposition to the application, the plaintiff/respondent appellant was a member of the collation and raring committees in the company. Whether or not he was in the category of those to be "dismissed or retired" under the Decree is irrelevant to the matter in hand.
In view of the pendency of the substantive suit and any other that may be considered appropriate in the circumstances of the interlocutory application in hand. I will avoid, as far as it is practicable, making observations on the merits or demerits of the plaintiff/respondent/appellants claims. I will therefore confine my consideration of this motion to the affidavit evidence before this court, and, f absolutely necessary and relevant, make some references to the pleadings in amplification of them.
What, in my view, is important to the determination of the issues involved in this interlocutory appeal are, first. whether Exhibit "A ", the letter of dismissal of the appellant signed and served on him (appellant) was done "in pursuance of the Public Officers (Special Provisions) Decree No. 17 1984" hereinafter referred to as "the Decree, which has retrospective effect and covers matters which vote before the making of it. Secondly, whether the 1st defendant/respondent, a company established by the Federal Government is, in the contemplation of the Decree, the Appropriate Authority in respect of:
"the dismissal, removal from office or compulsory retirement of any public officer." Thirdly, whether the 2nd defendant/respondent who signed Exhibit"A" and designed himself as Acting General Manager was "a person authorised" by the "Appropriate Authority and whether the 1st defendant/respondent had such authority and fourthly, whether the guidelines signed and circulated by the Secretary to the Federal Government on the scope and effect of the Decree were complied with. The circular letter was reproduced, verified and attached to the plaintiff/respondent/appellants counter-affidavit as "Exhibit A", as aforesaid.
The Head of the Federal Military Government and Commander-in-Chief of the Armed Forces was extremely concerned about the great anxiety it caused to civil servants who were purportedly dismissed, removed or compulsorily retired under the Decree and assured them that the exercise was not intended to be arbitrary or in the nature of witch-hunting. The entire contents of the circular teller quoted speak for themselves and is relevant as test of good faith in the actions presumed to have been taken under the Decree.
Section 3(3) of the Decree was calculated to give immunity to the appropriate authorities or persons authorised by them against civil claims in tort or contract in respect of acts performed in pursuance of the Decree, that is, the removal from office or compulsory retirement of public officers, It says:
No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, mailer or thing done or purported to be done by any person under this Decree and if any such proceedings have been or are instituted before or after the making of this Decree, the proceedings shall abate, be discharged and made void.
This immunity is only available to the 1st defendant/respondent company if, by section 1(2)(a) of the Decree, it is the appropriate authority in respect of the "dismissal, removal from office or compulsory retirement of public officer; or (b) the conduct of any inquiry into any aspect of the exercise by a public officer of duties."
"Appropriate Authority" is defined in section 4(1)(2)( 1) of the Decree 8 in respect of any office which was held for the purposes of any state, shall be the Military Governor of that state or any person authorised by him; and
(ii) in any other case ,shall be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council.
(The italics is ours).
There is nothing in the affidavit deposed to in support of the motion that the 1st defendant/respondent company is the "appropriate authority" or a person so authorised in the context of the Decree our is the 2nd defendant/respondent an authorised person. Both are therefore incompetent to dismiss the plaintiff/respondent/appellant under the Decree. His claims do not therefore constitute abuse of the process of the law. Rather the defendants/respondents' act in issuing Exhibit "A" under the Decree is ultra vires, rendering it a nullity.
The learned trial Judge did not, with profound respect, advert his mind to the intendment of the Decree or the mischief sought to be avoided by its promulgation. His conclusions were therefore abrupt. There was no effort made at interpreting or construing the text letter and spirit of the Decree. He merely answered the proposition he posed himself in the affirmative without expatiating on his conclusions.
Section 3(3), and indeed all other relevant provisions of the Decree are clear and unambiguous. They present no difficulty in their construction or interpretation, if necessary. In this case, the question of interpretation does not arise as the words employed in expressing the objective of the Decree do not admit of any other meaning. They mean what they said. In Chatenay v. Brazilian Submarine Telegraph Company, 1A.B. 79at page 85, Lindley, L.J., observed:
"The expression construction as applied to a document (including a statute) includes two things - first, the meaning of the words; and secondly, the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or legal document. The effect of the words is a question of fact."
The learned trial Judge did not consider the claim of the defendants/respondents to be "appropriate authority" in the context of the Decree. He merely cited, I must say with respect, certain provision of it and without examining their effect acceded to the defendant/respondents' application. In Ogunlesi v. Attorney-General of the Federation S.C. 90, Udo Udoma, J .S.C., stated:
"where the words of a statute are plain and unambiguous, it is the duty or the court to give effect to them."
Sections 3(1).3(2) and 3(3) of the Decree ought to have been read together to clarify the intention of the Federal Military Government proclaiming it. Its history ought also to have been considered. It is most desirable in that any court concerned with the interpretation and construction of statute, including a Decree, should ascertain and acquaint itself with its objectives, its history and the situation, preceding its promulgation so as to avoid precipitated conclusions. See CA/B/219/85, Johnson Obamwonyi &; Ors. v. Bendel State Transport Service & Anor of 24th February. 1989, yet unreported. In Escoigne Properties Ltd. v. I.R.C. (1955) A.C. (H.L.) at page 549, Lord Denning commented in that respect as follows:
"We do not refer to legislative history as they do in America do not look at the explanatory memoranda which preface bills before parliament and we do not have recourse to the pages of Hansard. All the court can do is to take judicial notice of the previous state of the law of other matters generally to well-informed people .
Lord Reid in Black-Clawson International Ltd v. Papierwerke Waldhot - A Schaftenburg, A.C. (1975), A.C. 591 adopted Lord Dennings distinguished observations. He stated:
"One must first read the words in the context of the Act read as whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself "in the shoes of the Law maker or makers and take in to account relevant (acts known to them when the document (Decree) was made
The learned trial Judge did not follow these dicta before arriving at the decision complained of.
Counsel on both sides in this appeal cited the decision in Wilson v. Attorney-General & Ors. (1985) I NWLR ( Pt.4) 572 S.C. ; (1985) 2 S.C. 191 Learned counsel for the plaintiff/respondent/appellant was of the view that the decision is applicable to the facts of the instant appeal but learned counsel for the defendants/respondents disagreed, contending that Wilson. supra, was distinguishable as the officer concerned was dismissed after his retirement. I think, with respect, that the facts in Wilson are substantially similar to those in the present appeal and the provisions of the Public Officers (Special Provisions) Act, No. 10, 1976 are in pari materia with those of the Decree. The definition of appropriate authority" and the intendment in both are identical. From the foregoing, I am inclined to support the argument of learned counsel for the plaintiff/respondent/appellant.
Supporting the lead judgment in Wilson. supra, read by Nnamani, J .S.C. , Sowemimo, C.J.N., stated:
"The main crux in this appeal is as to whether any person or authority, which does not come within the definition of "appropriate authority, comes within the provision of section 7, sub-section 2(1) and therefore becomes competent.
Section 2(1) of the Act, supra, says:
In respect of any office which was held in right for the purposes of the State, shall be the military Governor of that state or any person authorised."
His lordship continued:
The letter of dismissal, Exhibit A (as in this appeal), was signed by the person who described himself (as the Acting General Manager in this appeal did) as the Secretary of the Public Commission of Bendel State. There was no iota of evidence that he was authorised by the Military Governor of Bendel Slate to issue the relevant letter (nor was the 1st and 2nd defendants/respondents, so authorised in this appeal). The officer therefore becomes incompetent and the letter of dismissal a nullity."
The periphery is mine.
The aforementioned observations and conclusions are in point. I follow and apply them to the facts of the instant appeal. In the lead judgment, Nnamaru, J .S.C., observed and held:
It is clear from the perusal of this AC1 (No. 10 of 1976. similar to the Decree) that the actions envisaged therein are mainly those of the appropriate authority and it is these that are validated by the provisions of Act No. 18 of 1m referred to earlier. It seems clear to me too that if the provisions of this Act, i.e., No. 10 of 1976 are to apply the act of dismissal or removal of a public officer .......... must be specifically or clearly seen to have been done by the appropriate authority or any other person, where applicable under the Decree. "
These eminent observations and findings are also apt and applicable to the facts of the present appeal. Certainly, the defendant/respondents' in-genuity in seeking a short a short cut to Victory is acknowledged. It is however, regrettable that the intendment of the Decree was not sufficiently grasped. The end result is that this appeal succeeds on all the grounds argued. The Ruling of the court below is hereby set aside. In consequence, it is hereby ordered that the substantive suit filed by the plaintiff/respondent/appellant be heard on the merits by another Judge in Benin Judicial Division, Bendel Slate. Composite costs is assessed and fixed at N500.00 in favour of the plaintiff/appellant against the defendants/respondents, jointly or severally. A formal order to be drawn and served on the Chief Registrar of the Court below without delay.
OMO, J.C.A.: I agree with the conclusion arrived at by my learned brother, Ndoma-Egba, J.C.A., in his judgment just delivered that this appeal should be allowed.
The main and indeed the only point on which a decision in this appeal lies is whether or not the purported dismissal of the appellant was the deed of the "Appropriate Authority" as defined in Section 4(1)(2)(a) of the Public Officers (Special Provisions) Decree No. 17 of 1984. This definition is set out in the lead judgment and I do not propose to set it out in my judgment. Suffice it to say that the Acting General Manager of the respondent company, on the State of the evidence, does not qualify to be so described. The immunity granted by Section 3(3) or the aforementioned Decree does not therefore cover him. The decision of the Supreme Court in Wilson v. Attorney-General of Bendel State and Ors. (1985) 1 NWLR (Pt.4) 572 S.C. (1985) 2 S,C. 191 is certainly apposite. The ruling of the trial Judge to the contrary is therefore wrong.
Accordingly, this appeal is hereby allowed and it is further ordered that the action be heard on its merits by another Judge of the High Court of Bendel State. The appellant is entitled to costs in this court and the court below which I assess at N300.00 and N200.00 respectively.
SALAMI, J.C.A.; I have had the advantage of reading before now a copy of the judgment just delivered by my learned brother, Ndoma-Egba. J.C.A. I entirely agree with the conclusion arrived thereat.
However, I intend to put in a word or two in elaboration. Section 4(2) (i) and (ii) of the Public Officers (Special Provisions) Decree No. 17 of 1984 defines appropriate authorityj as follows:
" (2) In the operation of this Decree the appropriate authority
(ii)other theoftheMilitaryor himorSupremeCouncil.
To take advantage of the ouster of courts' jurisdiction or immunity conferred by the provisions of section 3(3)of Decree No.11 of 1984 the maker of exhibit A, the letter whereby the appellant was dismissed must bring himself within the intendment of section 4(2)(ii). The letter dismissing the appellant from the services of the 1st respondent which is a limited liability company. Exhibit A, was signed by one Pat F. Okaro who claimed to be acting on behalf of the acting General Manager. In their effort to establish that the jurisdiction of the court is ousted the respondents/averred in paragraph 10 of their better and further affidavit in support of the motion as follows;-
"10. That the plaintiff/respondent - a Public Officer -and an employee of the 1st defendant/ applicant was written a letter of Dismissal by the 2nd defendant/applicant
acting for the Acting General Manager who is also a public officer well as the appropriate authority.
Although paragraph 10 of the better and further affidavit in support of the motion was expressly admitted by the appellant in the counter affidavit, I think his admission notwithstanding, the burden still squarely lies on the respondent to show that the maker of exhibit A is the appropriate authority. The issue turns on the interpretation of section 4(2)(ii) of Decree No. 17 of 1984 which is a point of law, and is given to the appellant who deposed to the counter affidavit's interpretation.
It is trite law that when the word of a statute are clear and unambiguous, the court is not to turn to extraneous matters but to give effect to them.
Paragraph (ii) of subsection 25 of section 4 of Decree 17 of 1984 is very clear and unambiguous. It is therefore, goes without saying in the absence of further evidence that the General Manager of the 1st respondent is neither the head of the Federal Military Government nor Supreme Military Council. I am next to examine the third leg of the tripod to ascertain whether he is a person authorised in that behalf by the Head of the Federal Military Government. The onus of proof is on the respondents as the party asserting to show that the first respondent was accordingly authorised to determine which of its staff are to be slated for dismissal and its right to inform or communicate to them the fact of their dismissal. This they have failed to do either through an averment in their affidavit in support of the motion or attachment of the document whereby the
Head of the Federal Military Government delegated his power to the General Manager of the 1st respondent. Delta Steel Company Limited. They have a duty which has not been discharged to show that the power has been delegated to the General Manager by producing before the court below and consequently, this court their authorisation.
Having failed to show that the General Manager is in appropriate authority their plea of ouster of jurisdiction of courts collapses like a pack of cards. Be that as it may, Pat F. Okoro, the 2nd respondent was, at all material time, not the General Manager of the: company.
Assuming for purposes of argument that the power was delegated to the General Manager, it is exercisable by him directly and personally he is not competent to re-delegate it. It is a fundamental principle of law that delegatus non potest delegare
I am not unmindful of Exhibit B to the counter-affidavit, letter No. SFMG . 38/1 dated 7th February, 1984, which was forwarded to the Chief Executive of the 1st respondent undercover of letter No. MM P. 418/V.5/355 dated 14th February, 1984. Paragraph 4 of the Letter of the Secretary to the Military Government is relevant to the point in issue. The paragraph reads inter alia, as follows:
"In respect of parastatals, the Chief Executive will set up Committees to conduct the exercise and submit the list to the Minister of the Supervising Ministry for approval."
The purport of the above-quoted passage is that in respect of parastatals which 1st, respondent is, if at all, the powers of appropriate authority has been donated it has been delegated to the Minister of the relevant Supervisory Ministry. There is no evidence before me that the 1st respondents General Manager is the Minister of the Supervisory Ministry. Exhibit B also did not confer the 1st respondent's General Manager with powers of an appropriate authority.
In the absence of evidence that the General Manager is an appropriate authority, the appeal is bound to succeed. The appeal is, therefore, allowed. I abide with all the consequential orders including the order as to costs made in the lead judgment.
not stated in the judgment