B.A. Shitta-bey V. Attorney General Of The Federation & Anor. (1998)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C
The appeal herein which concerns the ouster of jurisdiction of courts under a Decree of the Federal Military Government of Nigeria is against the judgment of the Court of Appeal holden in Lagos and delivered on the 10th day of May, 1991 (Coram: Babalakin, J.CA. as he then was and concurred in by Awogu and Kalgo. JJ.C.A.)
The genesis of the appeal is that the appellant as plaintiff had sued the respondents then defendants, in the High Court of Lagos State presided over by Segun, J. The claim therein was succinctly for a declaration that the decision of the respondents to retire him (appellant) from the federal civil service of Nigeria (with the letter issuing forth from 2nd respondent) Ref. No. FC 0017/Vol. VIII/969 of 14th January. 1986 (Exhibit B) which was preceded by an earlier one from the President and Commander-in-Chief of the Armed Forces – Exhibit A to 2nd respondent) notice of which was given in the statement of defence, was irregular, illegal, null and void.
By a notice of preliminary objection, the respondents contended that the trial court lacked jurisdiction to hear the appellant’s claim. The High Court in a considered ruling dismissed their objection as lacking in merit. Whereof, the respondents being aggrieved, appealed to the Court of Appeal (hereinafter referred to as the court below) which in a well considered judgment, allowed the appeal. It is against the latter judgment that the appellant has now appealed to this court on nine grounds contained in a notice of appeal dated 29th July, 1991.
Briefly stated, the facts of the case as proffered by the appellant, are that he was first appointed to the post of a Crown Counsel in 1961; that he had earned series of promotions in his civil service career as State Counsel Grade 1 in 1964; Senior State Counsel in 1966; Principal State Counsel in 1970; Legal Adviser in 1972 and Director on Salary Grade Level 16 by 1977. Thereafter, said he, he was promoted to the rank of Acting Director of Public Prosecutions of the Federation in November, 1985 – a post he held until by Exhibit B, he was abruptly retired from service. The appellant pleaded in his statement of claim to the effect that he wrote two letters to the 2nd respondent, both to which he received no response despite the failure in all his attempts at personal calls at its office. He finally averred in the penultimate paragraphs 19 to 21 of statement of claim thus:
“19. The plaintiff will also contend at the trial that the purported premature retirement from service was conceived and executed in very bad faith so as to frustrate the plaintiff’s acting appointment as the Director of Public Prosecutions of the Federation from being substantively confirmed by the Federal Civil Service Commission, the second defendant.
- The plaintiff will contend that the purported premature retirement from the Federal Civil Service was misconceived by the perpetrators of the action which is illegal, unjustifiable, unfair and totally indefensible.
- Whereof the plaintiff claims as per his writ of summons.”
After the respondents had categorically denied in their entirety paragraphs 1,3,6,9,12,13,14,15,16,17,18,19,
20 and 21 of statement of claim, they averred in paragraphs 8-10 of the statement of defence as follows:
“8. The defendants will further contend that the retirement of the plaintiff by the appropriate authority as stated in paragraph 7 above was in turn conveyed to the plaintiff by a letter dated 14th January, 1986 from the Federal Civil Service Commission. The defendants will rely on this letter and all other relevant documents at the trial of the action.
- In answer to the claim or declarations sought by the plaintiff, the defendants will raise by way of preliminary objection on point of law on or before the trial, the following issues:-
(i) The court has no jurisdiction to entertain this suit by virtue of the provisions of section 3 of the Public Officers (Special Provisions) Decree 1984 No. 17.
(ii) The defendant in addition to the above will further contend that by virtue of the provisions of section 5 of the Constitution (Suspension and Modification) Decree 1984 No.1 as amended, this action is void and it shall be so declared.
By virtue of the provision of Decree No. 13 Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984, no decision of any court will avail the plaintiff.
- Whereof the defendants contend that the plaintiffs action is frivolous, vexatious, speculative and an abuse of the court’s process and should be dismissed with substantial cost.”
Acting pursuant to the rules of this court, the parties filed and exchanged briefs of argument. While the appellant in his brief argued (contrary to the rules governing brief-writing) the grounds, the respondents in their brief submitted two issues as arising for the determination of this court. The argument by the appellant of the grounds of appeal is wrong. Since the art of brief-writing has been in practice in this court for upwards of two decades, issues and not grounds should be argued.
It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this court, must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal, See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 A-B; Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137 at 148; Momodu v.Momoh (1991) 1 NWLR (Pt. 169) 608 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. The above proposition is complemented by another which states that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal vide Chinweze v. Masi (1989) 1NWLR (Pt. 97) 254 and Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313. (Parenthesis are supplied by me).
Hence, as this court had occasion to poignantly point out in Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 421 in framing issues for determination the proper procedure is to argue issues and show how they relate to the grounds ….” See also Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. Irrespective of what the rules of court enjoin, on 18th May, 1998 when this appeal came up for hearing before us, the appellant relied on his brief by indicating that he would argue these nine grounds of appeal as contained in his brief of argument.
The learned Senior State Counsel for her part and on behalf of the respondents, adopted her brief in which, rightly in my view, she identified two issues as arising for determination, to wit:
- Whether the Court of Appeal was right in holding that the jurisdiction of the trial court to entertain this matter was properly ousted by the provisions of section 3(3) of Decree No. 17 of 1984.
- Whether the Court of Appeal was properly constituted while determining this matter.”
I take the view that the nine grounds framed by the appellant to attack the decision of the court below, were they to have been contracted into issues, would clearly and undoubtedly have overlapped and/or been concomitant with the respondents’ two issues set out above, with issue 1 covering grounds 1 to 8 and issue 2, ground 9 respectively.
All told, I deem these two issue as more precise and indeed enough to dispose of the matters in controversy in this appeal. I accordingly adopt the two respondents’ issues in my consideration of this appeal, the gravamen of whose complaint is pivoted on the purported retirement of the appellant from his civil service post for just or no just cause and which can, in my opinion, be decided on that single issue of whether such removal is illegal, unjustifiable, unfair and totally indefensible. Such issue in my firm view, is that epitomised in the respondents’ issue No.1 and not that in all or any of the eight grounds (1-8) of appeal which are unduly repetitive and prolix. Equally, my opinion is that appellant’s ground 9 covers the respondents’ issue 2 which is adequate to dispose of the matter in controversy raised therein. This is why in my consideration of this appeal, I do not hesitate for a moment in adopting the respondents’ issues 1 and 2 to aid me in my consideration of the appeal.
Before going into the merits of this appeal, however, I deem it pertinent, firstly, to consider albeit briefly, the issue of jurisdiction. As decided by this court in Obikoya v. Registrar of Companies & Anor (1975) 4 SC 31 at 34/35.
” ….. the existence or absence of jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial judge’s decision or order in respect of the relevant subject-matter”.
See also Ezomo v. Oyakhire(1985) 2 SC 260;(1985) 1 NWLR (Pt.2) 195 and Nwafia v. Ububa (1966) NMLR 219 at 221.
The question of jurisdiction can be raised at any time or stage in the proceedings or on appeal as a substantive point of law. (See Bronik Motors Ltd & Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296;(1985) 6 NCLR 1; (1983) 6 SC. 158 at 273 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, being mindful of the fact that any defect in jurisdiction is fatal to the whole proceedings and the-judgment obtained thereby is a nullity. See Gabriel Madukolu v. Johnson Nkemdilim (1962) 1 All NLR (Pt. 4) 587;(1962) 2 SCNLR 341. Thus, stressing the importance of jurisdiction, Bello CJN said in Utih & ors v. Onoyivwe & others (1991) 1 NWLR (Pt. 166) 166:-
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
Obaseki, J.S.C. in Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617 at 625 had this to say:
“Whenever the question of jurisdiction of any court is raised, it is a question that touches the competence of the court that is raised. It does not raise any issue touching the rights of the parties in the subject matter of the litigation or dispute. Indeed, in our jurisprudence, only a court of competent jurisdiction can adjudicate on issues touching the rights of the parties. A court that has no jurisdiction to entertain the matter before it cannot exercise judicial powers in respect of that matter, Any such exercise is a nullity and the proceedings and judgment as a result of that exercise are all null and void ….”
See also Timitimi v. Amabebe & Ors 14 WACA 374 and Teliat A.O. Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17 at 36 for the proposition that if a court has no jurisdiction to hear a matter any step taken in relation to the matter is void.
Thus, as decided by this court in Mrs. Victoria Okotie-Eboh v. Adolo Okotie Eboh (1986) 1 SC 479;( 1986) 1 NWLR (Pt. 16) 264 jurisdiction cannot be acquired by consent of parties nor can it be enlarged by estoppel.
Having examined the principles concerning jurisdiction – when to raise it, its strategic importance in proceedings before the courts and its effect when raised, the two issues I had hereinbefore indicated, I will consider them in their order of sequence as follows:-
ISSUE NO.1.
On 18th May, 1998 when this appeal came up for hearing the appellant appearing for himself and learned Senior State Counsel (Mrs Onuogu) for the respondents both adopted and elaborated on their respective briefs. The appellant in addition, applied and was granted leave to tender a certified true copy of proceedings in suit No. CA/L/137/89 before the Court of Appeal dated 10th May, 1991 and it was received as Exhibit SC 1.
The question posed in issue 1 (which is similar to issue 1 raised in the court below and resolved against the appellant) is, whether the court below was right in holding that the jurisdiction of the court to entertain the appellant’s action was properly ousted by the provisions of section 3(3) of the Public Officers (Special Provisions) Decree No. 17. I shall in the rest of this judgment refer to the latter Decree as Decree No. 17 of 1984 simpliciter.
Now. section 3(3) of Decree No. 17 provides:
“(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this act and if any such proceedings have been or are instituted before, on or after the making of this Act, the proceedings shall abate, be discharged and made void”
For the jurisdiction of the trial court to be said to have been properly ousted in this case, the appellant must have been retired by the appropriate authority and his retirement must fall within the provision of Decree No. 17(ibid). Who, one may then ask, is the appropriate authority The term appropriate authority has been defined in a number of judicial decisions of this court as well as in Decree No. 17 of 1984. Section 4(2) of Decree 17 states:
“In the operation of this Decree, the appropriate authority –
(i) 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.”
It is common ground that prior to his retirement, the appellant was director (Acting Director of Public Prosecutions to be precise) in the Federal Ministry of Justice. Section 4(2) (ii) above therefore properly or appropriately applies to him, having served in an office which he held under the aegis of the Federal Government. And as to who is or is not an appropriate authority two decisions of this court clearly illustrate this, namely:
(i) In Wilson v. Attorney General of Bendel State (1985) 1 NWLR (Pt. 4) 572, a case of unlawful dismissal in which the single issue was whether in purporting to dismiss the appellant, the Civil Service Commission is an “appropriate authority” by the combined effect of the provisions of Act No. 37 of 1968, Act No. 10 of 1976 and Act No. 18 of 1977, which oust the jurisdiction of the court to inquire into the validity of the purported dismissal, this court held inter alia:
“The appropriate authority” – which means either the Military Governor himself or any other person whom he has clearly and specifically authorised to act in that behalf.”
The above decision was upheld in another unanimous judgment of this court in Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449, where it was held that:
“Even if the action of the respondents had come within the period of operation of the Decree and within the act protected by the Decree, the respondents not coming within the definition of ‘appropriate authority’ cannot avail themselves of the protection of the Decree: Wilson v. A.G. of Bendel State (1985) 1 NWLR (Pt. 4) 572 applied.”
Although the above two cases dealt with offices undoubtedly held under a State Government, the definition is unquestionably applicable to an office held under the Federal Government where the appropriate authority accordingly becomes the Head of Federal Military Government (President) or Head of State or any person authorised by him or the Supreme Military Council (later Armed Forces Ruling Council) vide Section 4(2) (ii) of Decree No. 17 of 1984 (ibid). The appropriate authority to retire the appellant therefore is, in my opinion, the Federal Military Government personified in the Head of State who, before he could be said to have acted properly, must be doing so in respect of a public officer. For the retirement of the appellant to be said to be proper, his designation must fall within the definition of a public officer. In this regard, section 4(1) of Decree No. 17 of 1984 stipulates:
“In this Decree, ‘public officer’ means any person who holds or has held any office on or after 31st December, 1983 in –
(a) the public service of the Federation or of a State within the meaning assigned thereto by section 277(1) of the Constitution of the Federal Republic of Nigeria, 1979.”
The Constitution of the Federal Republic of Nigeria (hereinafter referred to as the 1979 Constitution) defines public service in section 277 as “The service of the Federation in any capacity in respect of the Government of the Federation.”
See also section 18(1)(b) of the Interpretation Act, 1964 where the term “public officer” is defined to mean “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State.”
From the foregoing, the appellant having been shown to have held office as a Director in the Federal Ministry of Justice until he was retired on the 14th day of January, 1986 by the receipt of the letter written to him, to wit: Exhibit B by the 2nd respondent, comes within the definition of a public officer under Decree No. 17 in section 1(1) as well as under the 1979 Constitution. See F.S. Uwaifo v. Attorney General of Bendel State (1982) 7SC 124;( 1983) 4 NCLR 1. For purposes of clarity, Exhibit ‘B’ is couched in the following terms:
“Retirement in the Public Interest
- I write to convey to you Government’s decision to retire you from the service in the public interest with effect from the 14th January, 1986.
- I also wish to take this opportunity to thank you for the service you rendered to the federal civil service and to wish you prosperity in all your endeavours in your retirement.
- It is usual on such an occasion to remind you to please hand over all Government property in your possession.
Yours faithfully,
(Sgd) S.B. Agodo
Permanent Secretary.”
Be it noted that Exhibit ‘B’ above was written by the 2nd respondent to the appellant after 2nd respondent’s Chairman had received a letter (Exhibit’ A”) from the Secretary to the Federal Military Government. Exhibit’ A’ which the appellant had argued strenously does not constitute admissible evidence set out in full, showeth:
“Cabinet Office
P.M.B. 12571
Lagos.
10th January, 1986.
Secretary to the Federal Government
Ref No S.F.M. G. 39/S.1/Vol. iv 1257
Alhaji Bagudu Shettima,
Chairman,
Federal Civil Service Commission,
Federal Secretariat, Phase II,
Ikoyi.
Retirement in the Public Interest
The President, Commander-in-Chief of the Armed Forces, Major General Ibrahim Babangida C.F.R., has directed that the following officers be retired from the service in the public interest with immediate effect:-
- I.I Iyeyemi, Accountant-General, Federal Ministry of Finance.
- C.C.E. Ugbodaga, Administrative Officer 1 Ministry of Industries.
- B.A. Shitta-Bey, Director, Federal Ministry of Justice.
- A. Ahmadu, Director of Prisons, Ministry of Internal Affairs.
Sgd (GAE. Longe C.F.R)
Secretary to the Federal
Military Government.”
It is crystal clear that appellant’s retirement contained in item 3 of Exhibit ‘A’ above was a direct act of the President who himself was the appropriate authority empowered to retire under Decree No. 17 of 1984. True it is that it was the Secretary to the Federal Military Government that signed it and not the Head of the Head of the Federal Military Government himself. The reason for this cannot albeit be far- fetched since section 6(3) of the Constitution (Suspension and Modification) Decree, 1984 provides:
“The executive authority of the Federal Republic of Nigeria may be exercised by the Federal Military Government whether direct or through persons or authorities subordinate to him.”
Also section 12(1) of the same Decree (ibid) provides:-
“The Head of the Federal Military Government may, subject to such conditions as he may think fit delegate any function conferred on him by any law (including the Constitution of the Federal Republic of Nigeria 1979) to the Federal Executive Councilor to any other authority in Nigeria, provided that this subsection shall not apply to the function of signing Decrees.”
As this court (per Nnaemeka-Agu, J.S.C.) in Nwosu v. Imo State Environmental Sanitation Authority (1990)( supra) at page 719 in respect of a State Military Governor, stated:-
“Howbeit section 6(9) of the Constitution (Suspension and Modification) Decree No.1 of 1984 gave a constitutional stamp to the power of a Military Governor to perform his executive functions either directly or through persons or authorities subordinate to him. It provides……… ”
Earlier on in his judgment, the learned Justice at page 718 of the report said:-
“Part of the argument on behalf of the appellant suggests that the letter of his dismissal from the service ought to have been signed by the Military Governor of the State himself. I think this line of argument has ignored a fundamental principle of law which is represented by the maxim: qui facit per alium facit perse. It was expressed in CO Littleton 258(a) thus: Qui per alium facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself)”
Be it noted that the above maxim has been applied in the execution of many official acts and directives, particularly by high functionaries of government. Thus, the learned author Wade, in his book: Administrative Law, 3rd Edition, page 67 said:
“Although therefore the courts are strict in requiring that statutory power shall be exercised by persons on whom it is conferred any by no one else, they make liberal allowance for the working of the official hierarchy least so far as it operates within the sphere of responsibility of the Minister.”
It would be unrealistic to imagine that the Minister would enjoy this power of acting through officials in his Ministry but that a Governor or (administrator) would not.”(Parenthesis mine). It follows therefore, in my opinion, that it is even more unrealistic or absurd to imagine that the President and Commander-in-Chief of the Armed forces cannot enjoy the privilege of having his documents signed by his Secretary. For instance, the appellant in his brief made heavy weather about the need to have admissible evidence in order to resolve the so-called conflicting claims as to who directed the retirement of the appellant. As has been amply demonstrated earlier on, there is no doubt that the President directed the retirement of the appellant from the contents of Exhibit A. As Nnaemeka-Agu, J.S.C. stated the law in Nwosu v. Imo State Environmental Authority (supra) at page 718:
“Evidence by affidavit is, it must be noted, a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence.”
In which case, documents attached to an affidavit as in the instant case, constitute admissible evidence. In view of the above pronouncement, I am of the firm view that the appellant cannot be right in thinking that inspite of the unequivocal statements made in each of Exhibits ‘A’ and ‘B’, particularly Exhibit A, there is still need to have admissible evidence.
The appellant further argued that his retirement did not fall within the provisions of Decree No. 17 of 1984 since he did not fall within the category of officers specified in section 1(1) thereof who can be removed by the appropriate authority. A cursory look at the title of the Decree depicts it as stating ‘Public Officers (Special Provisions) Decree, 1984′. As the title suggests, it applies to all public officers, in which case, any public officer could be removed under the Decree. The law, as it stands now therefore, admits of two ways of removing public officers – firstly through the normal civil service method or through Decree No. 17 of 1984.
As Nnaemeka-Agu, J.S.C. had occasion to explain in clearer and unambiguous language in Nwosu’s case (supra) at page 725:
” …. dismissal and other disciplinary actions against civil and public officers are not a normal function of a Military Governor and Chief Executive of a State, but of such bodies as the Civil Service Commission and the heads of different parastatals. Decree No.17 of 1984 conferred a special and unusual power on a Military Governor to dismiss public officers. It was promulgated on the 27th of June, 1984 and makes a special provision in section 1(2) (a) and (b) whereby persons dismissed, terminated or retired by or at the direction of the Military Governor between December, 31, 1983 and the date of the promulgation of the Decree would be deemed to have been duly dealt with under the Decree. In the circumstance, I believe it would be unreasonable … to hold that persons similarly dealt with since the promulgation of the Decree cannot be deemed to have been dealt with under the Decree simply because no section of the Decree was quoted in the letter of dismissal. I do not so hold.”
The appellant’s contention that Decree No. 17 of 1984 does not give anybody arbitrary powers to remove public officers overlooks the fact that the Decree invests in the Head of the Federal Military Government as appropriate authority with special powers to carry out this function. Although such powers have been said to be drastic and unpopular, in the words of Nnameka-Agu, J.S.C. in Nwosu’s case (supra), there is “no escape route”. If it is remembered that the Armed Forces Ruling Council, the maker of the legislation, is not a parliament and never pretended to be so, no matter how one construes the Decree, effect must be given to its provisions. Indeed, Decree No.17 of 1984 spells out clearly what types of facts are covered by it. For instance, section 1(1) of the Decree provides:
“The appropriate authority may at any time after 31st December, 1983 –
(i) dismiss or remove the public officer summarily from his office: or
(ii) retire or require the public officer to compulsorily retire from the relevant public service.”
In the case in hand, the act complained of by the appellant is his retirement by the appropriate authority which is well covered by sub-section (ii) of section 1 of Decree No. 17 (ibid). The appellant has argued in his brief that any act of the appropriate authority outside 31st December, 1983 and 27th June, 1984 when Decree No. 17 of 1984 was promulgated, is not automatically accepted to have been done under the Decree. There must be admissible evidence, he contends, to prove that the appropriate authority acted under the Decree. With due respect, the appellant’s argument is based on a misinterpretation of section 1(2) of the Decree whose purport is to give it retrospective effect. While under our law there is a presumption against retrospectivity – see Adegbenro v. Akintola (1963) 1 All NLR 299;(1963) 2 SCNLR 216 at 301-302; Adeshina v. Lemonu & ors (1965) 1 ALL NLR 233 and The Swiss Air Tranpsort Co. Ltd v. The African Continental Bank Ltd. (1971) 1 All NLR 37 at 45 and 46 -where, as in the instant case, a retrospective operation to Decree No. 17 of 1984 was clearly intended and spelt out, that legislation will not be declared incompetent vide Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 and Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 404. Indeed, in the case in hand, the retrospectivity propounded would appear clearly not to affect the pending proceedings before the law courts. See Uwaifo v. A.G. Bendel State (supra) and Eyesan v. Sanusi (1984) 1 SCNLR 353;(1984) 4 SC 115 at page 137. There is therefore no requirement under this Decree that any act done by the appropriate authority outside 31st December, 1983 and 27th June, 1984 must be proved. Decree No. 17 of 1984 is still a subsisting legislation; it was in existence at the time the appellant was retired in 1986; it is yet to be repealed and its existence must therefore be judicially noticed by all courts vide Section 74(1) (a) and (b) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. See also Adetipe v. Amodu (1969) 1 NMLR 62 at page 67 and Benson v. Ashiru (1967) 1 All NLR 184 at 185.
In both Exhibits A and B, it is unambiguously stated that the appellant’s retirement is in the public interest and this brings it under section 1(1) (d) of Decree No.17 (ibid) which provides:
“The general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest.”
The appropriate authority is not required by the Decree to state the reasons for his decision to retire a public officer under any of the sub-sections of the Decree. The reason for his action is personal and therefore subjective. Although, admittedly, it is desirable to state the reason for the decision of the appropriate authority to act under the Decree, the Decree makes no such requirement imperative. As Nnaemeka-Agu, J.S.C. in the Nwosu case (supra) puts it, what is necessary is that the appropriate authority “should be satisfied from materials placed before him that he should act”. Nor by the demands of the Decree, is the appropriate authority required to set up a panel to examine the case. It is for this reason that the case in hand is distinguishable from the cases of Wilson v. Attorney General of Bendel State (supra); Garba v. Federal Civil Service Commission (supra) and Anya v. Iyayi (1988) 3 NWLR (Pt. 82) 359. In none of the above cases was the retirement in question that of the appropriate authority. In the present case which is on all fours with Nwosu’s case (supra), the retirement was the act of the appropriate authority and the provisions of section 3(3) of Decree No.17 of 1984 properly and effectively oust the jurisdiction of the trial court and I so hold.
Issue 1 is accordingly resolved against the appellant.
ISSUE NO.2
The appellant’s grouse in issue 2 is whether the court below was properly constituted while determining this matter. He first of all pointed out how it is the appointment or Babalakin, J.C.A. to the Supreme Court that vitiated the record. This court promptly drew his attention to page 136 of the record which for its brevity and shortness I set out hereunder as follows:-
“CA/L/137/89
BOLARINWA OYEGOKE BABALAKIN, J.C.A
I agree.
(SGD)
B.O. BABALAKIN
JUSTICE COURT OF APPEAL”
Concentrating his attack on Exhibit SC.1, the appellant submitted that from Exhibit SC.1 only Justices Kalgo and Awogu sat and shown to have read the Court of Appeal’s judgment on 10/5/91. Justice Babalakin having ceased as at the latter date to belong to the Court of Appeal, appellant contended that since Exhibit SC 1. stated that the judgment of the court below was read, he would urge this court to remit the case to that court for rehearing on the ground that there was nothing to show that any of the two other Justices (Kalgo and Awogu) read Justice Babalakin’s judgment. He concluded his argument by submitting that since the judgment was not constitutionally determined, Justice Babalakin could not have legally been a member of that court.
The learned Senior State Counsel for the respondents in her reply, submitted shortly that as Babalakin, J.C.A. (as he then was) originally sat on the panel that heard the case, his judgment could be pronounced by another Judge even though Babalakin, J.C.A. had been elevated to the Supreme Court as at the date the judgment was read on 10/5/91. We were referred to the purports of sections 11 and 226 of the 1979 Constitution. She also cited in her brief the case of Ogbunyiya & Ors v. Obi Okuda & Ors (1979) ANLR 105 as the locus classicus on this issue after distinguishing it from the case in hand by demonstrating that the Ogbunyiya case was heard by Nnaemeka-Agu, J. (as he then was) sitting as a single Judge in the High Court, Onitsha before he was elevated to the Court of Appeal. She further contended that the case in hand was heard and determined by three competent Justices of the Court of Appeal. I think that her submission here is right and I agree with her. She also contended that section 11 of the Court of Appeal Act allows the views of a member of the Court of Appeal that is not present to be read by another member irrespective of the provisions of section 226 of the 1979 Constitution which provide that:-
“226. For the purposes of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Federal Court of Appeal shall be duly constituted if it consists of not less than 3 Justices of the Court of Appeal…. “.(Italics is mine for emphasis).
It is now firmly established by this court through a long line of judicial interpretation that a decision arrived at by the Court of Appeal or the Supreme Court in which a member who participated at the hearing and at conference and signified his views therein, could, on account of death, retirement, elevation, dismissal or other cause, have his judgment pronounced or read by another Justice as the case may be. See: section 258(2) of the 1979 Constitution. Thus, in the case of Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261 where the appeal in a chieftaincy case failed and was accordingly dismissed, Ogwuegbu, J.C.A. (as be then was) made the following pronouncement after Akpabio, J.C.A. who wrote the lead judgment had read it:
“Ogwuegbu and Agoro, JJC.A. concurred. Agoro, JC.A. gave his concurrence at the conference on the appeal before he retired in December, 1990.”
Considering the purport of section 226 vis-a-vis section 258 (2) of the 1979 Constitution (ibid) Iguh, J.S.C. elaborated in the Adegorolu’s case (supra) as follows:-
“It is beyond dispute from the record of proceedings that Agora, J.C.A. attended the conference on the appeal. It is also clear that he gave his consent to the dismissal of the said appeal before he retired in December, 1990. He had however retired from the Court of Appeal as at the 27th February, 1991 when judgment in the appeal was delivered by that court.
It cannot be doubted that if a Justice of the Court of Appeal, although he took full part in the hearing of an appeal, physically joins in the delivery of the judgment in the appeal in his capacity
as a Justice of the Court of Appeal after the date he ceased to be a member of that court, either by retirement, dismissal or elevation to a higher bench, he would be acting without jurisdiction. Such judgment would therefore be totally ineffective, null and void ….. There is however, the provision of section 258(2) of the Constitution of the Federal Republic of Nigeria, 1979 which provides thus –
258(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion, provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.”
A little further down in the judgment, the learned Justice expatiating said:
“It is clear that pursuant to section 258(2) of the 1979 Constitution, once a panel of the Court of Appeal Justices who heard an appeal is competent and properly constituted, it is not necessary for all the Justices who heard the cause or matter to be present at the delivery of judgment. But the opinions of any Justices who were in the panel that heard the appeal, but are unable to take part in the delivery of the judgment, may be read or pronounced at the time of the delivery of the judgment by any other Justice, whether or not he was present at the hearing.”
Pointing out that section 258(2) of the Constitution has received judicial interpretation in the decision of this court in Anyaoke and others v. Dr. Felix Adi and ors (1985) 1 NWLR (Pt. 2) 342 at 350, the learned Justice quoted with approval the views, of Irikefe, J.S.C. (as he then was) thus:
”’For the purpose of this appeal, only section 258(2) with the proviso thereto arises for interpretation. From the foregoing, it would appear that once the panel that heard the case on appeal was properly constituted, that is, competent, a judgment read within the following permutations would nevertheless be valid and unimpeachable:-
(a) One Justice sitting alone to read his own signed judgment to which the others who sat with him had earlier signified their concurrence in writing.
(b) All the Justices who sat in the case sitting together to read their own individual opinions one after the other.
(c) Justices, other than those who sat to hear the case sitting to read the judgments already signed and authenticated, produced by those who actually sat over the case.”’
See also the case of Alhaji Aminu Ishola v. Societe Generale Bank (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 where one of the issues for determination was whether the judgment of the Court of Appeal delivered by only two Justices of that Court was not a nullity after the third Justice that took part when the appeal was argued and judgment reserved, was no more de facto, de jure a member of the court before that Court of Appeal purported to have delivered the judgment therein. It was held by Iguh, J .S.C. writing the leading judgment of this court as follows:-
“Pursuant to section 11 of the Court of Appeal Act, 1976 and section 258(2) of the 1979 Constitution, once an appeal in any cause or matter has been fully heard before the Court of Appeal, and judgment is reserved, it is not necessary for all the three Justices who heard the appeal to be present together in court on the day of the delivery of the judgment. It is lawful if the written opinion of anyone of them who is unavailable is read by any other Justice of that court. (Ogbunyiya v. Okudo (1979) 3 LRN 318 distinguished). (Page 428 paragraphs E-F),”
The learned Justice at pages 428 paragraphs F-G 432-433. paragraphs C-C, further held:
“I need stress, therefore, that the fact that only two of the Justices who heard the appeal sat to deliver the judgment of court cannot be any matter of great moment as it is clearly unnecessary for all the three Justices who heard the appeal to be present together in court for the delivery of the judgment. Accordingly I am unable to accept learned counsel’s submission that the judgment of the Court of Appeal in this case was void simply because only two Justices or the court below who heard the appeal were present to deliver the judgment of court.”
“In the first place the proviso to section 258(2) of the 1979 Constitution provides that it shall not be necessary for all the Justices who HEARD an appeal to be present when judgment is to be delivered. Indeed, the second arm of that proviso provides that the opinion of an unavailable Justice who heard the appeal may be pronounced on judgment day by any other Justice whether or not he was present at the hearing. That section of the Constitution by natural interpretation, intendment or by necessary implication appears clearly to limit the meaning of ‘hearing’ therein stated up to the stage the parties have fully argued and concluded their respective cases and the appeal is thereafter adjourned for judgment.
It seems to me quite clear from a close examination of section 258(2) of the 1979 Constitution that the ‘hearing’ therein envisaged is that concluded when the parties have closed their respective addresses, arguments or cases and the appeal is adjourned for judgment. I therefore entertain no doubt that Uthman Mohammed, J.C.A., as he then was, took full part in the hearing of the appeal in issue notwithstanding the fact that he was not present when judgment in the appeal was delivered and that the pronouncement of his opinion by Okunola, J.C.A. was, to all intents and purposes, valid, constitutional and in accordance with the law.
Reverting once more to the decision in Onyeama Ezenwa v. Samuel Mazeli (supra). I think it ought to be observed that the interpretation of the word ‘hearing’ in that case was in relation to the issue of joinder of parties as plaintiffs under the provisions of Order IV, rule 5(1) of the then Supreme Court (Civil Procedure) Rules of Nigeria. Having regard to the said rules of court under consideration, the West African Court of Appeal arrived at the decision, and quite rightly in my view, that the hearing of a case continued up to the delivery of the judgment and that a trial judge may therefore properly reopen a case and order the joinder of parties at any stage of the proceedings before final judgment. The decision in that case needs not therefore be binding in the present case in so far as the meaning of the word ‘hearing’ in the con of the two enactments are entirely different.
I think I should point out that the provisions of section 258(2) of the 1979 Constitution of Nigeria which I have set out earlier on in this judgment govern both this court and the court below alike. I need only observe that this court has times without number exercised its undaunted jurisdiction pursuant to the said section 258(2) of the 1979 Constitution of Nigeria. This, it has done, by the opinion of an unavailable Justice, retired, elevated or dead, being pronounced by any other Justice of the court so long as such opinion was duly given at a time the retired, elevated or dead Justice was still a member of the Court. See U.B.A. Ltd and Anor v. Mrs Achoru (1990) 10 SCNJ
17;(1990) 6NWLR (Pt. 156)254; Alhaja Juradat Animashaun v. Olojo (1990) 10 SCNJ 43; (1990) 6 NWLR (Pt. 154) 111; Ademola Atoyebi v. Williams Odudu (1990) 10 SCNJ 52; (1990) 6 NWLR (Pt. 157) 384; The registered Trustees of Apostolic Church v. Mrs. Emmanuel Olowoleni (1990) 10 SCNJ 69; (1990) 6 NWLR (Pt. 158) 514; Globe Fishing Industries Ltd. & Ors v. Chief Folarin Coker (1990) 11 SCNJ 56;(1990) 7 NWLR (Pt. 162) 265; Chief Asuquo Oko and Ors v. Chief James Ntukidem and Ors (1993)2 SCNJ 33; (1993)2 NWLR (Pt. 274) 124; Dr Kwazeme Ofondu v. S.E. Niweigha (1993) 2 NWLR (Pt. 275) 253; Gregory Obi Ude v. Clement Nwara and Anor. (1993) 2 SCNJ 47;(1993) 2 NWLR (Pt. 278) 638; Jinadu Ajao and Ors v. Bello Adigun (1993) 3 SCNJ 1; (1993) 3 NWLR (Pt. 282) 389; C.C.B. (Nig.) Ltd v. Emeke Ogwuru (1993) 2 SCNJ 53 at 64; (1993) 3 NWLR (Pt. 284) 630; Ibrahim Kano v. Gbadamosi Oyelakin (1993) 3 SCNJ 65 at 89; (1993) 3 NWLR (Pt. 282) 399; The State v. Nnolim and Anor (1994)6SCNJ (Pt. 1) 48 at 66; (1994)5 NWLR(Pt. 345) 394; Eboigbe v. N.N.P.C (l994) 6 SCNJ 71 at 81; (1994) 5 NWLR (Pt. 347) 649; Alhaji Aliyu v. Dr. J.A. Sodipo (1994) 5 SCNJ 1 at 23; (1994) 5 NWLR (PI. 342) 1; Himman Merchants Ltd v. Alhaji Inuwa Aliyu (1994) 6 SCNJ (Pt. 1) 87 at 101; (1994) 5 NWLR (Pt. 347) 667.
“The procedure adopted by this court in the above cases was substantially applied by the court below in the determination of this appeal. In my view, there can be no reason whatever to fault this time-tested procedure which, speaking for myself, is unimpeachable, promotes speedy administration of justice, is in accordance with the law and the Constitution of the land and is incapable of occasioning any miscarriage of justice or undue delay in the determination of causes before this court or the Court of Appeal.”
The underlining above is mine for emphasis and it underscores the validity of the judgment of B.O. Babalakin. J.C.A., as he then was at page 136 therefor and when read in conjunction with what Kalgo, J.C.A. said in Exhibit SC. I the opinion of an unavailable Justice who had been elevated to the Supreme Court was being pronounced and that when the elevation came he BABALAKIN, J.C.A., (as he then was) wrote Exhibit SC.1 when he was a member of the court by reason of the presumption of regularity
I wish to touch on the point as to what in law is referred to as the presumption of regularity. Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The learned authors of Phipson on Evidence. Eleventh Edition have this to say on the subject:
“The presumption which is nearly akin to that of innocence is chiefly applied to a judicial and official acts, and though sometimes conclusive, is in general only rebuttable. Thus, the constant performance of divine service from an early period in a Chapel raises a rebuttable presumption of its due consecration. Common instances occur also with respect to the validity of a person’s appointment to a public office, from his acting therein; and as to the due execution of deeds and wills. User of a way by the public as of right for twenty years gives rise to a presumption of dedication. See also Eaglehill Ltd. v. J. Needham (Builders) Ltd. (1972) 3 All E.R. 895 (H.L.) especially at page 905. It should be noted that Lord Cross expressly disavowed the application of the presumption of regularity and relied instead on the principle of construction ut res magis valeat quam pereat. It is, with respect, hard to see why the latter should be applicable, or indeed the former inapplicable on the facts of the case. (Lord Dilhorne who reached the same result as Lord Cross – with whom the rest of the House agreed – preferred to rely no neither Latin tag). However, whatever the true description of the presumption involved, it seems clear that it cast a persuasive and not merely an evidential burden.” But it seems that the court is bound to draw the inference where, as in the instant case, there is no evidence to the contrary. See Ogbuanyinya v. Okudo (No.2) (supra). I therefore infer from Exhibit Sc. I dated 10th May, 1991 – the main body of which states:
“Parties absent but served. No appearance. Judgment delivered by Kalgo, J.C.A. Appeal allowed, and claim before the lower court struck out for want of jurisdiction. N500.00 costs in favour of the appellants in this court and N300.00 costs in respect of the trial at the lower court.”
as regular until the contrary is shown.
In the latest decision of this court in J.E.A. Shuaibu v. Nigerian Arab Bank Ltd. (1998) 5 NWLR (Pt. 551) 582 where one of the issues posed for decision was as to whether the Court of Appeal was properly constituted when judgment was delivered on 10th April, 1991, my learned brother Ogundare, J.S.C. opined inter alia at page 605 thus:
“…What it means is that even if Mukhtar, J.C.A. had dissented, her dissent would have had no effect on the judgment that the appeal was allowed. Therefore, in my respectful view, and having regard to the circumstances, the participation of Adio, J.C.A. in the judgment of the court below regrettable as it is, did not vitiate the proceedings of the court below. The position would have been otherwise had Okezie, J.C.A. or Ndoma-Egba, J.C.A. had dissented and Adio, J.C.A. had joined either of them to form a majority.”
I too made my humble contribution to the above views in the following words:
“Thus, although the plea of nullity of a judgment as raised in the case in hand, will be entertained at any stage of the proceedings of an appeal. (see Hakido Kpema v. The State (1986) 1 NWLR (Pt.17) 396 and Okoro v. I.G. of Police 14 WACA 370), the majority opinions of Ndoma-Egba and Okezie, J.J.C.A. having overwhelmed that of Adio, J.C.A. (as he then was), that majority decision prevails. The constitution of the court below cannot therefore, in my opinion, be successfully impeached or be declared a nullity.”
It is in the light of the above that I agree with the learned Senior State Counsel’s argument that where, as in this case, we had three competent Justices hearing and determining an appeal, it is of no moment that two only (Kalgo and Awogu. JJ.C.A.) were present at the delivery of the judgment or that the absence of the third unavailable Justice whose opinion was pronounced and forms part of the judgment of the court vitiates the proceedings, his elevation to the Supreme Court notwithstanding.
Again, it must be remembered that the judgment appealed against was a unanimous one as pointed out by this court in Shuaibu v. Nigeria Arab Bank Ltd (supra) and that the provisions of section 11 of the Court of Appeal Act (ibid) and section 258(2) of the 1979 Constitution were in no way breached. Even if Kalgo and Awogu, JJ.C.A. had agreed and Babalakin, J.C.A. dissented (which is not the case here) the respondents would still have succeeded.
It is for the above reasons that I also resolve issue 2 against the appellant.
The appeal herein lacks substance and it fails. I affirm the decision of the court below and award N10,000.00 as costs in favour of the respondents.
SC.47/1992
