C. T. Tyonzughul V. Hon. Attorney-general, Benue State & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
OLUDADE OLADAPO OBADINA, J.C.A
This is an appeal against the decision of the Benue State High Court sitting at Makurdi, contained in the judgment of Ogbole, J. delivered on 21/9/98. The appellant was the plaintiff at the trial court, while the respondents were the defendants.
According to the appellant, the plaintiff/appellant is a medical doctor and was at all times material to this case, the Acting Director of Primary Health and Disease Control with the Benue State Ministry of Health, Makurdi. In that capacity, he was the Administrative Head of the Department, the major function of which was the prevention and combating of diseases and epidemics. In January, 1995, there was an outbreak of cerebrospinal meningitis in several Local Government Areas of Benue State, including Oju and Kwande Local Government Areas.
The appellant through his Commissioner, sought for and obtained funds from the Military Administrator of the State to purchase vaccines. The vaccines were supplied and dispensed in combating the epidemic. The vaccines were bought for (N667,000) six hundred and sixty-seven thousand Naira. The vaccines were not enough. Consequently, the appellant placed a further order for vaccines worth three million Naira (N3,000,000), when he travelled to Lagos. The order was made on the directive of his Commissioner. On his return from Lagos, his Commissioner sent one Mr. Femi Sawyer with an offer to supply the CSM vaccines, even though, Mr. Femi Sawyer did not submit any quotation for supply of vaccines.
The appellant demanded for quotation. Mr Femi Sawyer submitted a quotation which was less favourable in terms than that of Cillon Pharmaceuticals Ltd., who supplied the earlier vaccines. The appellant preferred that Cillon Pharmaceuticals Ltd. should supply the vaccines and gave his reasons to the Commissioner. The Commissioner agreed and wrote to the Military Administrator requesting for funds to pay Cillon Pharmaceuticals Ltd. The Military Administrator was equally briefed on the up to date situation of the epidemics in Benue State on 8/3/95.
On 13/3/95, the substantive Commissioner for Health re-opened the matter. A committee was constituted to investigate the way and manner the vaccines were procured. The committee found that the appellant misappropriated some funds and recommended that the appellant be relieved of his post in the ministry and be made to refund a sum of (N667,000) six hundred and sixty-seven thousand Naira to the Government of Benue State. The Ministry of Health, Benue State, then summoned a meeting of Personnel Management Board, which, according to the appellant, no longer existed, to rubber stamp the decision of the investigation committee. Consequently, the appellant was dismissed by the military administrator who also directed the 2nd respondent to recover the sum of (N667,000) six hundred and sixty-seven thousand Naira from the appellant. That is the appellant’s version of the story.
According to the respondents, the appellant was a medical doctor and Acting Director of Primary Health Care and Disease Control with the Ministry of Health, Benue State. He was the administrative head of the Department and his major function was prevention and combating of diseases and epidemics.
In January, 1995, there was an outbreak of cerebrospinal meningitis (CSM) in Oju and Kwande Local Government Areas of Benue State. According to the respondents, on 6th of February, 1995, the Federal Ministry of Health donated 30,000 doses of cerebrospinal meningitis (CSM) vaccines to the State for vaccination exercise. As the quantity of the vaccine was inadequate, the Commissioner for Health wrote to the Military Administrator on 8th February, 1995 requesting for release of (N3,798,000) three million, seven hundred and ninety-eight thousand Naira for purchase of 200,000 doses of CMS vaccines. On 10th of February, 1995, the request was approved and the money was released to the Ministry for the purpose. On 16th February, 1995, the appellant placed order for the supply of vaccines by way of contract without necessary directive and approval, and thereby committed funds in excess of (N3,000,000.00) three million Naira without relevant authority and in disregard of laid down financial procedures.
A disciplinary action was therefore instituted against the appellant and consequently, he was dismissed from the service by the Military Administrator under the provisions of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990. He was also directed to refund the sum of (N667,000.00) six hundred and sixty-seven thousand Naira to the government, being the amount misappropriated by him during the purchase of the CSM vaccines. The appellant repeatedly appealed to the Military Administrator to re-consider the matter. When the Military Administrator refused to reconsider the matter, the appellant instituted this action against the respondents, claiming (15) fifteen reliefs.
The case went into full trial before the trial court. After the plaintiff/appellant closed his case, the respondents raised a preliminary objection to the competence of the action. In his considered ruling dated 21st of September, 1998, the learned trial Judge upheld the objection and dismissed the action. It is against the decision contained in the said ruling that the appellant has appealed to this court.
The appeal is predicated on six (6) grounds of appeal. From the six grounds of appeal, the appellant formulated six (6) issues.
The issues read as follows:-
“(1) Whether the learned trial Judge was right in dismissing the entire suit when the relief sought in the preliminary objection was that of striking out prayers 56(6), (7), (9) and (15) which deal with the dismissal of the appellant? (Based on ground 1);
(2) Whether the learned trial Judge was right in dismissing the suit instead of striking out same after having ruled that he lacked jurisdiction to hear it? (Based on ground 2);
(3) Whether mere admission by a party or parties to a suit can discharge the burden of proving a statutory requirement? (Based on ground 3);
(4) Whether or not the trial court was correct in holding that the Military Administrator was acting within the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990, when he dismissed the appellant from service and imposed monetary fine on him? (Based on ground 4);
(5) Whether or not Cap. 381, Laws of Federation of Nigeria, 1990, is an inferior legislation to the unsuspended provisions of the 1979 Constitution as amended? (Based on ground 5)
(6) Whether or not the trial court can suo motu join a stranger to a suit as a party? (Based on ground 6).”
The respondents did not formulate any issue. They adopted the six (6) issues formulated by the appellant as issues for determination of the appeal. I will now consider the issues in the order set out by the appellant.
Issue No.1
“Whether the learned trial Judge was right in dismissing the entire suit when the relief sought in the preliminary objection was that of striking out prayers 56(6), (7), (9) and (15) of the claim which related to the issue of dismissal of the appellant?.”
The learned counsel for the appellant, in arguing the issue, referred to the preliminary objection and argued that the respondents’ counsel was specific on the prayers he was challenging. The prayers were those related to the appellant’s dismissal. He said that no objection was raised to the other diverse claims by the appellant; the tribunal was urged to strike out only the prayer that related to the dismissal of the appellant.
He referred to many cases including Imoloame v. WAEC (1992) 9 NWLR (Pt.265) 303, (1992) 11-12 SCNJ 121; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt.363) 376, (1994) 10 SCNJ 71;Ajakaiye v.Military Governor, Edo State (1994) 9 SCNJ 102 and Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275, (1992) 11 – 12 SCNJ 142.
He submitted that the court had no jurisdiction to grant a relief or a prayer that was not specifically asked for. He submitted that the order dismissing the entire suit was granted without jurisdiction.
He urged the court to resolve the issue in favour of the appellant.
In his own brief, the learned counsel for the respondents conceded that the respondents in their preliminary objection prayed the court to strike out prayer 56(6), (7), (9) and (15) of the statement of claim. He argued that the dismissal of the appellant from the service formed the main/principal claim of the appellant before the trial court. According to the counsel, all the other claims were ancillary to the principal claim. He said that the primary complaint of the appellant in the case was that he was wrongfully dismissed as a civil servant.
He submitted that whereas in this case, the court lacked jurisdiction to hear the primary/main complaint, the entire action ought to be struck out. He conceded that a court could not grant a relief or prayer not specifically asked for. He, however, submitted that a court could go ahead and dismiss an action if the action merited dismissal, even though the counsel prayed that it should be struck out. He submitted that having held that it had no jurisdiction to entertain the principal claim of wrongful dismissal, the trial court was right in dismissing the entire action, which included the other ancillary reliefs.
He relied on Turkur v. The Government of Taraba State (1997) 6 NWLR (Pt.510) 549, (1997) 6 SCNJ 81 at 108-109; Egbuonu v. Borno Radio (1997) 12 NWLR (Pt.531) 29, (1997) 12 SCNJ 99 at 108.
There is no dispute by the parties that the Military Administrator of Benue State dismissed appellant under the provisions of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation, 1990.
The purpose or object of Cap. 381 of the Laws of Federation of Nigeria, 1990 is to provide for the dismissal, removal, or compulsory retirement of certain public officers for diverse reasons and to prevent any civil proceedings being instituted against the appropriate authority’s action. For purpose of appreciating the purport of the Act, the relevant sections provide as follows:-
“1.(1) Notwithstanding anything to the contrary in any law, the appropriate authority, if satisfied that:-
(a) It is necessary to do so in order to facilitate improvements in the organisation of the department or service to which a public officer belongs; or
(b) by reason of age; or ill health or due to any other cause, a public officer has been inefficient in the performance of his duties, or
(c) the public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or
(d) 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 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 service.
2.(1) Where any public officer is dismissed, removed or retired compulsorily from his office pursuant to section 1 of this Act, the appropriate authority shall direct:-
(a) Whether appropriate retirement benefits are to be paid; or
(b) Whether those benefits shall be forfeited.
(2) In this section, the reference to appropriate retirement benefits is a reference to any benefits payable under any enactment or law of the Federation or of a State.
(3)(1) For the purposes of this Act, the operation of the provisions of sections 159 and 190 of the Constitution of the Federal Republic of Nigeria, which protect the pension rights of persons in the public service of the Federation or of a State respectively, are hereby excluded.
(2) The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria) relating to the matters to which this Act applies or relating to the appointment, benefits, dismissal and disciplinary control of a public officer shall have effect subject to this Act.
(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 proceeding shall abate, be discharged and made void.
(4) Chapter IV of the Constitution of the Federal Republic of Nigeria is hereby suspended for the purposes of this Act and the question whether any provision thereof has been, is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Act shall not be inquired into in any court of law.”
From the provisions of the Act, the provisions are very clear and unambiguous. As it relates to the instant case, section 1(1)( c) of the Act empowers the appropriate authority, if satisfied, that a public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person, to authorize the dismissal, removal from office or compulsory retirement of such officer. The same sub-section also empowers the appropriate authority to conduct an inquiry into any aspect of the exercise by the public officer of his duties.
Section 2(1) of the Act also enjoins the appropriate authority, where he authorized the dismissal, removal or compulsory retirement of a public officer, to direct whether entitlements of the officer should be paid or be forfeited. Section 3 of the Act excludes the operation of the provisions of sections 159 and 190 of the 1979 Constitution which protect the pension rights of the officer concerned, and makes the provisions of any enactment, law or instrument, including the Constitution of the Federal Republic relating to the appointment, benefits, dismissal and disciplinary control of a public officer subject to the Act, i.e., Cap. 381. The Act also ousts the jurisdiction of the court to inquire into, hear and determine any matter on account of or in respect of any act, matter or thing done or purported to be done by any person under the provision of the Act. The Act defines the appropriate authority to mean the President or any person authorized by him or in the case of a State, the Military Governor of that State or any person authorized by him.
The law is settled that it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. See Egbuonu v. Bomo Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29 at 43.
In the instant case, paragraphs 1- 16 of the statement of claim and the evidence led by plaintiff show clearly that the plaintiff was a public officer within the meaning of section 4(1) of the Public Officers (Special Provision) Act, Cap. 381, Laws of Federation of Nigeria, 1990. They also show how he was performing his duties. Paragraphs 17, 18 and 19 of the statement of claim and the evidence of the plaintiff also show how the plaintiff/appellant committed a public fund in the sum of N3,003,000.00 (three million, three thousand Naira) while his Commissioner was out of the State and was scheduled to be away for sometime.
Paragraphs 28, 29, 30, 31 and 38 show that the plaintiff/appellant was queried and how Investigating Committee was set up to investigate the actions of the plaintiff/appellant in the matter, and how the report of the Investigating Committee was approved. In paragraphs 44, 50 and 52 of the statement of claim, and the evidence led, the plaintiff/appellant acknowledged that he was dismissed by the Military Administrator.
From the statement of claim of the plaintiff/appellant and the evidence led by him, it is very clear that the plaintiff/appellant was a public officer. It is also clear that he placed an order costing (N3,003,000.00) three million, three thousand Naira CMS vaccines while the Commissioner i.e. the State Commissioner for Health was out of the State. In other words, that the plaintiff committed public funds to the sum of N3.003m without approval of the Commissioner when the Commissioner was out of the State. It is also clear that investigation was conducted into the activities of the plaintiff/appellant, subsequent to which the Military Administrator authorized his dismissal and ordered the plaintiff/appellant should refund a sum of (N667,000) six hundred and sixty-seven thousand Naira.
The issue now is whether the court can look into the claim of the appellant challenging the validity of the dismissal and the order for refund of the sum of (N667,000) six hundred and sixty-seven thousand Naira. In other words, whether the jurisdiction of the court is ousted.
The law is well settled, that an act is not immuned from being litigated upon simply because, ex-facie, the offending act is said to have been done under an enabling Decree or Act. To take cover under the sting of the Decree or Act which ousts the jurisdiction of the courts, it must be transparently shown that the offending act has been actually done under the Act.
In Obi Ebo v. Nigerian Television Authority (1996) 4 NWLR (Pt.442) 314 at 330 – 331, where Achike, J.C.A., (as he then was) stated the law as follows:-
“In my opinion, it is the responsibility of a serious legal practitioner to painstakingly find faults with the executive’s exercise of rights covered by ouster clause provisions under any legislation, be it in a Decree, statute, constitution or law, and the rest of the problem is squarely within the duty of the court to examine closely whether the executive act is ‘done actually under the provision of the law. It is only where the act is done actually under the enabling law that the immunity of ouster clause avails the executive and not otherwise.
Therefore, any act complained of, such as one under reference, purported to be done by any person as asserted by respondent’s counsel and is alleged to be done under the Decree cannot be immuned under the Decree unless there is ample evidence that the purported act is done by a person designated as appropriate authority or one so authorized by him. Any contrary interpretation of section 4(2)(i) and (ii) will produce strange consequences and make nonsense of these clear words of Decree No. 16. In the proper case, it seems to me that many acts of the executive may not always or be easily designated as acts of the appropriate authority without sufficient foundation laid by evidence with reference to the doer of the act, unless the doer is, for example, a Governor of a State or Head of the Federal Military Government etc. The burden is clearly on the doer of the act complained of to bring himself or herself within the purview of appropriate authority under section 4(2) of the Decree.”
In interpreting statutes which affect the civil rights and obligations of citizens or deprive them of their properties, the attitude of court is to construe it ‘fortissime contra preferentes’ that is strictly and narrowly against acquiring authority but sympathetically in favour of the citizen whose right is being deprived – See Garba v. F.C.S.C. (1988) 1 NWLR (Pt. 71) 449; see also Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688. See also Nzeribe v. Imo State Attorney-General (1996) 10 NWLR (Pt. 478) 322 at 339.
What is distillable from the foregoing discussion is that for immunity conferred under the Public Officers (Special Provisions) Act, Cap. 381 (i.e., the inclusion of ouster clause) to avail the party seeking to rely on it, it must be manifestly established by conclusive evidence that the actor did so in his status as the appropriate authority within the provision of section 4(2) of the Act. See Garba v. Federal Civil Service Commission & Oth. (supra) and Nwosu v. Imo State Environmental Authority (supra). Today, ouster clauses replete in many of the Decrees and Edicts passed by the successive Military Administrations since 1966 to 1999, which latter became Acts and Laws. While one may decry such ouster clauses as being monstrous and inimical to the normal operation of democracy, it must be clearly noted that ouster clauses are not novel. They have been long with us even before the advent of military rule, for example, they existed in chieftaincy laws of the former regions in the country, and will continue to be with us after the regime of force.
In the instant case, I am convinced and satisfied as indeed was the learned trial Judge at the lower court, that the Military Administrator was the one who authorized the dismissal of the appellant under the provision of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990, and by virtue of section 3(3) of the Act there is nothing the court can do but to blow a mute trumpet. The jurisdiction of the court has been ousted by section 3(3) of the Act.
On the specific issue as to whether the trial Judge was right when he dismissed the entire suit, when the relief sought in the preliminary objection was the striking out of prayers 56(6), (7), (9) and (15) of the plaintiff’s/appellant’s statement of claim, it would be necessary to critically examine and consider together the entire claims as to whether or not all the claims are principal claims or some are ancillary to the others.
On a critical examination and consideration of the totality of the averments contained in the statement of claim and the statement of defence along with the evidence led by the parties it is very clear that the Military Administrator authourized the dismissal of the appellant, having been satisfied, that the appellant committed the State Government financially without due directive. It is also clear that the main complaint of the appellant is the order of the Military Administrator for dismissal of the appellant is the order of the Military Administrator for dismissal of the appellant and for refund of the sum of (N667,000) six hundred and sixty-seven thousand Naira by the appellant to the State Government.
Therefore, the principal or main claims of the plaintiff in paragraph 56 of the statement of claim are the claims in paragraph 56, sub-paragraphs 6, 7, 9 and 15 of the statement of claim. All the other claims in paragraph 56 sub-paragraphs 1, 2, 3, 4, 5, 8, 10, 11, 12, 13 and 14 of the statement of claim are off shoots of the main and principal claims and therefore incidental or ancillary to the main and principal claims before the court.
The law is well settled that where incidental or ancillary claims of a party are so inextricably tied to or bound up with the main claims before the court in the same suit, a court of law cannot adjudicate over them where it has no jurisdiction to entertain the main claims if such incidental or ancillary claims cannot be determined without a determination at the same time of the main claims or where the determination of such incidental or ancillary claims must involve a consideration or determination of the main claims. See Abubakar Umaru Abba Tukur v. The Government of Taraba State & Oths. (1997) 6 NWLR (Pt. 510) 549 at 582 – 583.
In the instant case, the main claims 56(6), (7), (9) and (15) are claims relating to dismissal of, and refund of funds misappropriated by the appellant and are so inextricably bound up with the appellant’s subsidiary or incidental claims 56(1), (2), (3), (4), (5), (8), (10), (11), (12), (13) and (14) of the statement of claim. Therefore, the trial Judge having found that he had no jurisdiction to entertain the main claims, could not adjudicate over the incidental or ancillary claims. See Basil Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt. 531) 29 at 44.
In that regard, what befell the main claim should also befall the incidental or ancillary claims. A In the circumstances, issue No.1 is hereby resolved against the appellant.
Issue No.2
Issue No.2 reads as follows:-
“Whether the trial Judge was right in dismissing the suit instead of striking out same after having ruled that he lacked jurisdiction to hear it.”
In arguing the issue, i.e., issue No.2, the learned counsel to the appellant referred to the preliminary objection raised by the respondents at a point that the plaintiff/appellant had closed his case.
He argued that the respondents had not entered their defence. He submitted that the case was yet to be determined on its merits. He submitted that when the court had no jurisdiction to entertain a matter the proper order to make was an order striking out and not an order of dismissal. He urged the court to resolve the issue in favour of the appellant.
In his own brief of argument, the learned counsel to the respondents referred to Order 24 rule … of the Benue State High Court (Civil Procedure) Rules, 1988 which abolishes demurrer, and rule 2 thereof which provides that any party is entitled to raise by his pleading any point of law and any point so raised must be disposed of by the Judge who tried the case at or after hearing application, may either dismiss the suit or order the defendant to answer the plaintiff’s allegations of facts. He argued that the respondents gave notice of objection on ground of incompetence of the action by virtue of the Public Officers (Special Provisions) Act, Cap. 381. He referred to paragraph 27 of the statement of defence, and argued that by consent of both counsel, the objection was set down for hearing and the learned trial Judge upheld the objection and thereupon dismissed the action pursuant to Order 24 rule 3 of the rules of court. He urged the court to answer the question posed in the affirmative.
The general principle is that where the court has no jurisdiction to hear and determine a case, it has no jurisdiction to dismiss it. The appropriate order to make in such a situation is an order striking the case out. In Hon. Samuel Omotunde Ilori v. Chief Theophilous Shobowale Benson & Oths. (2000) 9 NWLR (Pt. 673) 570 at 580, this court per Aderemi, J.C.A. stated as follows:-
“Generally, unless a case is heard on its merits and adjudged to be unmeritorious, it should not be dismissed. The proper order to make in putting to an end a case that has not been heard on its merit is one striking it out, and not a dismissal order.”
In the instant case, the appellant led evidence and closed his case. The respondents then raised an objection based on the evidence led by the appellant that the court had no jurisdiction to entertain the action and the lower court upheld the objection that the court lacked jurisdiction to look into the case. Since the issue raised in the objection was that of jurisdiction and the court agreed that it lacked jurisdiction, the court could not turn round and dismiss the action; all the court could do was to strike out the action. The court can dismiss an action only where it has jurisdiction to hear and determine the action. I think the order of dismissal was wrong in the circumstance of the case. The appropriate order to make in the circumstance is an order striking out the action.
However, it seems to me that there was no miscarriage of justice occasioned by the appellant since no civil proceedings shall lie or be instituted in any court in the country for or on account of or in respect of the act, or matter forming the subject matter of the case. See section 3(3) of Cap. 381, Laws of the Federation of Nigeria, 1990:
Issue No.3
“Whether mere admission by a party or parties to a suit can discharge the burden of proving a statutory requirement.”
In arguing the issue, the learned counsel referred to the case of Ulegede v. The Military Governor of Benue State (2001) 17 NWLR (Pt.741) 193, (2000) FWLR 98 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, (1990) All NLR 379. He also referred to the argument of the learned counsel to the respondents to the effect that the two cases are distinguishable from the instant case, in that there is evidence that the Military Administrator of Benue State actually directed the dismissal of the appellant, and that where an issue has been admitted by both parties further proof of that fact becomes unnecessary. The learned counsel then referred to the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990 and submitted that the appropriate authority could at any time dismiss or remove or retire a public officer from office or the public service.
He again referred to the case of Ulegede v. Military Administrator, Benue State (supra) and submitted that the Military Governor or Military Administrator as the case may be, could act in person pursuant to the provisions of the Act, or may authorize any other person to so act on his behalf, and that section 3(3) of the Act excludes the jurisdiction of the courts from entertaining any proceedings with respect to anything done under the provisions of the Act. He submitted that statutes such as Cap. 381 aforesaid that take away the citizen’s rights of access to court must be construed strictly and narrowly. He said that if the appropriate authority delegated his powers to a subordinate officer to act on his behalf the instrument delegating the power must be produced in evidence. He submitted that mere admission or consent by the parties could not dispense with the necessity for this proof as it is mandatory. He cited the case of Nwosu v. Imo State Environmental Sanitation Authority (supra) as authority.
He submitted that there must be evidence that it was the appropriate authority that actually dismiss the appellant. He added that the respondents in this case could not use the blind admission of the appellant as a cover up for not discharging their statutory duty. He submitted that there was no evidence that the Military Administrator was the one who directed the Secretary to the State Government, Mr. D. S. Ede, to dismiss the appellant. He urged the court to resolve the issue in favour of the appellant.
In his own brief, the learned counsel to the respondents referred to the pleadings of the parties and in particular, paragraph 39 of the statement of claim. He also referred to paragraphs 19 and 20 of the statement to defence and submitted that the facts that the Military Administrator actually dismissed the appellant had been admitted by the appellant and did not require any further proof. He submitted that the cases of Ulegede v. Military Administrator of Benue State (supra) and Nwosu v. Imo State Environmental Sanitation Authority (supra) are distinguishable from the present case. He urged the court to dismiss the appeal.
The main question for determination in the issue under consideration is whether the Military Administrator was the one who actually dismissed the appellant or authorized his dismissal. In paragraph 39 of the statement of claim, the appellant made it clear that it was the Military Administrator that actually dismissed him and directed that he should refund a sum of (N667,000) Six hundred and sixty-seven thousand Naira. Paragraph 39 of the statement of claim reads as follows:-
“(39) – Based on the report, the Military Administrator dismissed the plaintiff from the services of Benue State Government and further directed that he should refund the sum of N667,000.00 to the Government, the letter of dismissal is pleaded.”
In answer to paragraph 39 of the statement of claim, the defendants admitted paragraph 39 of the statement of claim as follows:-
“(20) The defendants admit paragraph 39 of the claim only to the extent that the plaintiff was dismissed by the Military Administrator but deny that the action (dismissal) was based on the recommendation of the Personnel Management Board.”
Section 75 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 provides that facts admitted in a pleading need not be proved.
It says:-
“(75) – No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”
In his evidence before the trial court, the appellant stated, inter-alia as follows:- .
“After my dismissal, I wrote several letters to the Military Administrator to reconsider his decision. I am aware that my dismissal is on the order of the Military Administrator.”
It is the law that what is admitted need no further proof – See section 75 of the Evidence Act: Olugbode v. Sangodeyi (1996) 4 NWLR (Pt. 444) 500 at 516; Okparaeke v. Egbuonu (1941) 7 WACA 53 at 55 and Lawal Owosho & Oths. v. Adebowale Dada (1984) 7 SC 149 at 163 – 164.
In Ebo v. N.T.A. (1996) 4 NWLR (Pt. 442) 314 at 332, the Court of Appeal, per Achike, J.C.A., (as he then was) stated as follows:
“It is true that by the provisions of the Evidence Act, section 75, a fact which is admitted need not be proved.”
With the averments in paragraph 39 of the statement of claim and paragraph 20 of the statement of defence as well as the evidence of the appellant on oath that he was aware that his dismissal was on the order of the Military Administrator, I do not think it was necessary for the respondents to further prove that it was the Military Administrator that dismiss the appellant. In that regard, I think that the submission of the learned counsel to the appellant that mere admission by the appellant that it was the Military Administrator that dismissed him would not relieve the respondents of the burden of further proving that it was the Military Administrator that dismissed the appellant is without substance.
The submission cannot be right. It is a misconception of the statutory effect of section 75 of the Evidence Act. What is more, the admission is not a mere admission. The appellant pleaded the facts in paragraph 39 of his statement of claim and led evidence in proof of the fact at page 64 of the record of appeal, where he stated inter-alia-
“I am aware that my dismissal is on the order of the Military Administrator.”
The cases of Ulegede v. Military Administrator (2000) (supra) and Nwosu v.Imo State Environmental Sanitation Authority (supra) are quite distinguishable from the instant case. They are cases in which there was no evidence that it was the Military Administrator and the Military Governor respectively that actually authorized the dismissal of the respective officers.
In the circumstances, issue No.3 is resolved against the appellant.
Issue No.4
“Whether or not the trial court was correct in holding that the Military Administrator was acting within the Public Officers (Special Provisions) Act, Cap. 381, LFN, 1990, when he dismissed the appellant from service and imposed monetary fine on him?.”
In arguing the issue, the learned counsel for the appellant argued that, assuming the Military Administrator actually directed the dismissal of the appellant, the exercise of such power ultra-vires the Administrator, when in addition, he imposed monetary fine, namely, the refund of the sum of N667,000 (Six hundred and sixty-seven thousand Naira) allegedly misappropriated by the appellant.
He referred to section 1(i) of the Public Officers (Special Provisions) Act, Cap. 381 and argued that the imposition of monetary fine was not within the contemplation of the Act. He referred to the case of Anya v. Iyayi (1993) 7 NWLR (Pt. 305) 290 at 313 and submitted that the ground for the exercise of power under the Act must be laid within those prescribed in section 1(1) of the Act. He submitted that the order for the refund of the sum of (N667,000) Six hundred and sixty-seven thousand Naira was oppressive, arbitrary, capricious, null and void and ultra-vires the powers of the Military Administrator.
He urged the court to resolve the issue in favour of the appellant. In his own brief of argument, the learned counsel to the respondents argued to the contrary. He submitted that the Military Administrator did not act beyond his powers under the Act, and even if he acted ultra-vires, the ouster clause would apply to avail him, in that the court could not inquire into any action done by the Military Administrator under the Act. He referred to Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, (1990) 4 SCNJ 97 at 121 – 122. He submitted that the Military Administrator was right in ordering the refund of the sum of (N667,000) Six hundred and sixty-seven thousand Naira misappropriated by the appellant. He urged the court to resolve the issue in favour of the respondents.
To answer the question posed in the issue under consideration, the provisions of the Public Officers (Special Provisions) Act aforesaid have to be critically examined. The Act provides as follows:-
“1(1) Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that:-
It is necessary to do so in order to facilitate improvements in the organization of the department or service to which a public officer belongs; or by reason of age or ill health or due to any other cause, a public officer has been inefficient in the performance of his duties; or the public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or 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 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.
2.(1) Where any public officer is dismissed, removed or retired compulsorily from his office pursuant to section 1 of this Act, the appropriate authority shall direct:-
(a) whether appropriate retirement benefits are to be paid?; or
(b) whether those benefits shall be forfeited…?
3(1) …
(2) …
(3) No 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.”
From the provisions of section 1(1)(c) of the Act, the appropriate authority if satisfied that a public officer has been engaged in corrupt practices or had in any way corruptly enriched himself or any other person, the appropriate authority may dismiss or remove the public officer summarily from his office or retire him compulsorily from the service and where a public officer is so removed or dismissed or retired, the appropriate authority shall direct whether the retirement benefits of such officer shall be paid to him or be forfeited. Where a public officer is dismissed on the ground of having corruptly enriched himself or misappropriated the public funds, as in the instant, the appropriate authority can direct under section 2(1) of the Act that the funds so misappropriated by the public officer be refunded by such an officer; and by virtue of section 3(3) of the Act, no proceedings shall lie or be instituted in any court for or in account of or in respect of such an order to refund the funds so misappropriated.
I think the phrase any act, matter or thing done or purported to be done by any person under this Act, appearing in section 3(3) of the Act covers the order directed by the Military Administrator that the appellant must refund the sum of (N667,000) Six hundred and sixty-seven thousand Naira alleged to have been misappropriated by the appellant. The court cannot inquire into any act, matter or thing done or purported to be done by the Military Administrator under the Act; whether or not he acted properly. – See Nwosu v. Imo State Environmental Sanitation Authority (supra) See also Okoro v. Delta Steel Co. Ltd. (1990) 2 NWLR (Pt. 30) 87.
The Military Administrator’s satisfaction that the appellant misappropriated public funds to the tune of (N667,000) Six hundred and sixty-seven thousand Naira is subjective and by virtue of section 3(3) of the Act, anything done or purported to be done by the Military Administrator pursuant thereto cannot be challenged in any court in the country.
The court has no jurisdiction to entertain the action. Issue No.4 is accordingly resolved against the appellant.
Having come to the conclusion that the court has no jurisdiction to entertain the action as instituted by the appellant in this case, I do not see the need for me to go into consideration of issue No.5 namely, whether or not the Public Officer (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990 is an inferior legislation to the unsuspended provisions of the 1979 Constitution of the Federal Republic of Nigeria. It is merely an academic exercise within the con of this case. The issue as to whether the Public Officer (Special Provisions) Act is inferior to the unsuspended provisions of the 1979 Constitution is irrelevant in the circumstance of this case. What is important is that the provisions of section 3(3) of the Act ousting the jurisdiction of the court is very clear and unambiguous, clearly showing the intention of the law makers. The intention of the law makers having been very clearly discovered, the court is bound to give effect to that intention.
As regards issue No.6 formulated by the appellant, namely, whether or not the trial Judge can suo motu join a stranger to a suit as a party, the learned counsel to the respondents conceded rightly in view that the learned trial Judge was wrong to have suo motu joined the 3rd respondent in this case; he however submitted, also rightly in my view that the joinder did not lead to a miscarriage of justice.
In the final analysis, I am convinced and satisfied that there is no merit in the appeal. Therefore, the appeal fails and it is accordingly dismissed. There shall be no order as to costs.
Other Citations: (2004)LCN/1572(CA)
