CDR. F. S. Ebohon (Rtd) V. Attorney-general, Edo State & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C

The appellant, Lieutenant Commander Felix S. Ebohon, N.N. (retired) a Deputy Chief Engineer in the defunct Bendel State Civil Service was, by a letter dated 25th April, 1984 informed as follows:

“Pruning of the Civil Service of Bendel State

1. I am directed to refer to the Bendel State of Nigeria Civil Service Commission’s letter No. S.275/Vol./111/10 dated 19th April, 1984 on the above-named subject and to convey, with regret, the decision of the Commission to dismiss you and you are hereby dismissed, from the Civil Service, with immediate effect …………
2. You are advised, in your own interest, to hand over immediately to your Head of Division/ Local Head Department all Government property in your possession.

Sgd. for Permanent Secretary,

Ministry of Works and Transport,

Benin City.”

Thus the appellant was notified of his dismissal from the service of the State. The letter on its face, purported to intimate the appellant that the dismissal was by Civil Service Commission of Bendel State. In the ordinary course of Civil Service Commission Regulations, there cannot be dismissal without certain steps having been taken e.g. there is evidence that the appellant has been convicted of a criminal offence based on fraud or dishonesty; or the appellant has been found guilty, after a thorough hearing according to the Civil Service Rules, of some offences bordering on dereliction of duty, incompetence, or deliberate act or omission that caused loss to government etc. This is usually stated in the letter dismissing a civil servant. Therefore on its face the letter of 25th April 1984 did not look regular. To any observer, in the absence of any other lawful reason the dismissal would look wrongful and ultra vires.

In his statement of claim the appellant as plaintiff averred that he was in the Nigerian Navy from 1972 to 1980 and that thereafter by transfer of service he became an employee in the Bendel State Civil Service as an Engineer. By 1983 he was appointed to the Delta Boatyard Limited as a General Manager. It would appear the Bendel State Government had substantial interest in the Delta Boatyard Limited because the appellant averred that he was appointed by the State Governor himself. What is however not in dispute is that the appellant remained in the service of Bendel State. Apparently after he left the Nigerian Navy and while in the service of Bendel State, the former lodged a criminal complaint against him whereby he was tried and convicted by a Lagos High Court but on appeal to the Court the conviction was set aside. What followed was the letter quoted earlier in this judgment. After the exchange of pleadings the Attorney-General of Bendel State filed a motion on Notice reading as follows:-

“MOTION ON NOTICE BROUGHT PURSUANT TO ORDER 24 RULES 2 AND 3 OF THE BENDEL STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 APPLICABLE TO EDO STATE OF NIGERIA

TAKE NOTICE that this Honourable Court will be moved on Friday the 24th day of Jan. 1992 at the hour of 9 0’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the defendants/applicants praying this Honourable Court for the following orders:-

(i) Setting down for hearing and disposal the point of law raised in paragraphs 9 and 10 of the statement of defence attached hereto as Exhibit ‘C’

(ii) Dismissing the entire action on the grounds that the plaintiff/respondent was summarily removed (prunned) from the Civil Service of the defunct Bendel State by the Military Governor of the State in exercise of the powers conferred on him by Public Officers (Special Provisions) Decree No. 17 of 1984. Accordingly, no civil proceedings relating thereto shall lie or be instituted in any court of law.

AND for such further Order or other orders as this Honourable Court may deem fit to make in the circumstances .

DATED in Benin City this 18th day of December 1991.”

In support of this motion there is an affidavit which, from paragraph 5 thereof, reads up to paragraph 14 as follows:

“5. That I am informed by F.A. Osadiaye, Esq; a Senior Legal Officer in the Civil Litigation Division in the Ministry of Justice, Benin City, and I verily believe him that pleadings have been exchanged. Photostat copies each of the statement of claim and the statement of defence are attached herewith as Exhibits ‘B’ and ‘C’ respectively.

6. That I am further informed by the said Senior Legal Officer and I verily believe him that in paragraphs 9 and 10 of Exhibit ‘6’, a point of law that the action was not maintainable and that this Honourable Court lacks the jurisdiction to hear and determine this matter by virtue of the provisions of Public Officers (Special Provisions) Decree, 1984 was raised.
7. That by a letter reference No. C.S.M. 61/Vol.V1/286 dated 13th April, 1984, the 2nd defendant/ applicant was informed by the Secretary to the Military Government and Head of Service that the Military Governor had approved the dismissal, retirement or termination of the appointment of a list of Civil Servants and that the 2nd defendant/applicant should implement same immediately. A photostat copy of the said letter is attached as Exhibit ‘D’
8. That following the directive in Exhibit ‘D’ the 2nd defendant/applicant, by a letter reference No.S.275/Vol. 111/10 of 19th April, 1984, took prompt action and communicated same to the Permanent Secretary (now Director-General) of the 3rd defendant/applicant. To this letter was attached the list of Civil Servants prunned in the 3rd defendant/applicant’s establishment. A copy each of the letter and the attached list is attached herewith as Exhibits ‘E’ and “EI” respectively and by page 2 of Exhibit E, the action taken by the 2nd defendant/applicant was copied to the Secretary to the Military Government and Head of Service.
9. That in Exhibit ‘EI’, the name of the plaintiff/respondent appeared at No. 548.
10. That in compliance therewith the 3rd defendant/applicant communicated to the plaintiff/ respondent his dismissal from the Civil Service of the defunct Bendel State.
11. That on the 27th of June, 1984, the Federal Military Government promulgated the Public Officers (Special Provision) Decree 1984, with commencement date of 31st December, 1983.
12. That by section 1 (2) of the said Decree any act or thing done between the commencement date and the date of the promulgation of the Decree is deemed to have been done thereunder.
13. That by virtue of section 3(3) of the said Decree, this honourable court lacks the jurisdiction to hear and determine this action.
14. That I am informed by the Senior Legal Officer and I verily believe him that the points of law raised in Exhibit ‘C’ will substantially, if not wholly dispose of this action in the interest of all concerned. It is therefore necessary to set this point of law down for determination.”

It is in this motion and the supporting affidavit that letters dated 13th April 1984 and 19th April 1984 were alluded to and they are herein quoted for clearer grasp of the issues in this appeal:

A. ‘MILITARY GOVERNOR’S OFFICE OF THE SECRETARY TO THE MILITARY

GOVERNMENT AND HEAD OF SERVICE BENIN CITY BENDEL STATE OF NIGERIA

Our Ref: No. C.SM.61/Vol.VI/286 13th April, 1984

The Permanent Secretary,

Civil Service Commission,

Benin City.

(For the attention of Mr. V.A. Ayetuoma)

Pruning of the Civil Service of Bendel State

I forward herewith in duplicate, a list of officers in the Civil Service who have been ear-marked for dismissal or retirement or whose appointment are to be terminated in connection with the current pruning of the Bendel State Civil Service being undertaken by the present Military Administration. The list has been considered by the State Executive Council and approved by the Military Governor.

2. It will therefore be appreciated if you place the matter before the Commission for their immediate implementation.
3. The effective date of the decision in each case is the 1st of May, 1984 and, in the circumstance, appropriate letters should reach the individuals affected without delay.

Sgd. (P.LG. Onyeobi) .

Secretary to the Military

Government and Head of Service.”

CIVIL SERVICE COMMISSION P.M.B. 1066 BENIN CITY BENDEL STATE OF NIGERIA

Ref. No. S.275/Vol.111/10 19th April 1994

The Permanent Secretary,

Ministry of Works & Transport,

BENIN CITY.

(For The attention of Mr. L.O. Umunna)

Pruning of the Civil Service of Bendel State

1. With reference to the on-going pruning of the Civil Service, I wish to convey the approval of the Civil Service Commission for the retirement/dismissal or termination of appointment, as the case may be, of the officers in your Ministry/Department listed in the attached schedule. The effective date of retirement/dismissal or termination of appointment is as shown against the names of the officers concerned.
2. You are kindly requested to convey the Commission’s decision to all the officers in your Ministry/Department affected by the pruning exercise, as soon as possible but, in any case, not later than 1st May, 1984. It is perhaps, pertinent to advise that you should ensure that all Government properties in the custody of the affected officers are recovered from such officers before they bow out of the service.
3. Gazette publication of the retirement/dismissal or termination of appointment of the officers affected by this exercise will be handled by this office.
4. Copies of this letter and the attached schedule are being forwarded to the Director of Audit and the Accountant-General for their information and necessary action.

Sgd. (V.A. Ayetuoma)

Permanent Secretary,

Civil Service Commission.

SECRET”

The appellant filed a counter affidavit to the motion on Notice as follows:

I Felix Ebohon, Male, Nigerian, Christian resident at No. 21 Adolor Street, Benin City make Oath and state as follows:-

“That I am the plaintiff/respondent to the motion filed by the defendants on 18th December, 1991.

That I depose to this counter affidavit in opposition to the said motion and prayer sought by the defendants by asking that my action be dismissed.

That I am informed by my Counsel A. I. Uhunmwagho, Esq. and I verily believe him that the motion did not disclose any fact whatsoever ousting the jurisdiction of the Court.

That paragraph 7 of the supporting affidavit is misleading and therefore not true. That I was informed of my dismissal by letter Ref. S.502/T/230 dated 25th April, 1984 attached herewith as Exhibit “CA”.

That the applicant’s Exhibit ‘D’ i.e. letter CSM.61/Vol.V1/286 of April, 1984 is an after-thought and a frame-up to deceive this Court.

That I was not dismissed in accordance with the Public Officers (Special Provision) Decree No. 17 of 1984.

That my letter of dismissal Ref. S.502/T/230 of 25th April, 1984 hereby marked Exhibit “CA1″ read with the applicant’s Exhibit ‘E’ clearly show who was dismissing me from the Service of the 1st defendant.

That I know as a fact that my appointment was never terminated by the Military Governor of Bendel State but by the 3rd defendant who were not happy at my progress in the Service and colluded with 2nd defendant to frame up a purported dismissal in 1984.

That I performed my duties so creditably that I was appointed General Manager in February 1984.

That the application was brought in bad faith as the defendants know that they have no defence to my claim.

That I was not dismissed in accordance with the Provisions of the Civil Service Rules which the 2nd defendant was enjoined to follow in determining the appointment of an Officer.

That this Court has the jurisdiction to determine this suit.

Dated this………………day of January, 1992 at Benin City.

Sgd. DEPONENT.”

From the foregoing what was obvious was that the matter would be first tried by affidavits. The main issue of course is whether, on the motion on notice, the court’s jurisdiction was ousted or not. On the strength of the entire affidavits before the Court the issue raised, and seriously in contention, is whether the letters of 13th and 19th of April were an after-thought to cover up the letter of dismissal dated 25th April, 1984 (quoted earlier). This serious allegation could not be easily washed away; it must be tried, and the mode of trying it is not simply by annexing the letters to an affidavit and believing they would be presumed to have emanated from the sources they have on their headings. This could be so if the letters are not challenged. However, learned trial Judge, after hearing the counsel to the parties on the motion and relying on Section 3(3) Public Officers (Special Provisions) Decree, No. 17 of 1984 and the case of Nwosu v. Imo State Environmental Authority & ors. (1990) 2 NWLR (Pt. 135) 688, 718 in his ruling came to the conclusion that the dismissal of the appellant was caught by the provisions of S.3(3) of Decree No. 17 of 1984 (supra).

The Court of Appeal, in considering the only issue for determination i.e.

“In the opinion of the appellant, only one issue arises for determination in this

appeal:

(a) whether the appellant was proved to have been dismissed under and by virtue of section 3(3) of the Public Officers (Special Provisions) Decree No. 17 of 1984 thereby ousting the jurisdiction of the Court” came to the conclusion in majority decision [Akpabio and Ogebe, JJCA, with Ubaezonu, J.C.A dissenting] that the trial High Court was right. In arriving at its majority decision, Court of Appeal held that by virtue of S.4(2) of Decree No. 17 of 1984 the two parties having conceded that the Military Governor or any other person authorised by him was the appropriate authority to terminate or dismiss the appellant, the appellant ought to know that letters of 13th and 19th April,1984 were written on the directive of the Military Governor. The Justices relied on Nwosu v. Imo State Environmental Sanitation Authority (supra) and Judicial Service Committee & 2 ors. v. Michael Omo (1990) 6 NWLR (Pt. 157) at 407 and also on Wilson v. Attorney-General of Bendel State & 2 Ors.(1985) 1NWLR (Pt.4) 572.

The dissenting judgment of Ubaezonu, J.C.A. held the view that the fact that the Governor was purported to have authorised the dismissal was not enough in the circumstances of this case and those two letters of 13th and 19th of April 1984 were challenged as non-existent as at the time the letter of 24th April 1984 was written and was prepared purely for the motion being heard.

In my view, both Courts below overlooked a very fundamental aspect of trial by affidavit evidence. Where affidavits of the parties conflict on a very important and crucial aspect of the dispute between them, that conflict cannot be cured by addresses of the parties counsel. If the Court rules on the affidavits alone, as conflicting as they are, the issue in dispute is being lightly washed away. In such a situation injustice would be the result, for the parties will not thereby be heard on the conflicts in the affidavits. The logical next step for a Court faced with such affidavits with serious conflicts on the main issue, that is to say, as to jurisdiction in this case, is to hear evidence on the conflicts so as to resolve them. In the instant case, the conflicts are as to proper existence and origins of the letters of 13th and 19th April 1984. The deposition in the appellant’s counter-affidavit may appear even spurious, it should not be written off as speculative; it was essential to the fundamental issue of whether the Court had jurisdiction to try the case. The bigger issue of the appropriateness of the dismissal would naturally follow after resolving the conflicts in the affidavits.

Thus, I am not venturing into the lawfulness or wrongfulness of the dismissal; far from it. What I am alluding to is the failure to try the preliminary issue of whether letters of 13th and 19th of April 1984 really never existed when the letter of dismissal dated 24th day of April 1984 was written. This could have been resolved by hearing evidence viva voce where the two letters would have been tendered on oath. In such a case, there will be evidence in chief, cross-examination” and re-examination on the two documents. The Court would then have moved forward to try the main issue of jurisdiction and thus know whether the dismissal was caught by Decree No. 17 of 1984. By moving forward to determine the issue of jurisdiction without resolving the conflicts in the affidavits of the parties, the lower Courts were definitely in error. All the cases cited – Nwosu, Wilson, etc. (supra) are on their own facts different from this case in that the authenticity of the letters were not in question as in the case now at hand.

For the foregoing reasons this appeal succeeds only as to the preliminary issue of erroneous decision on affidavits, when those affidavits conflicts on material facts, and the Courts below holding that the Court’s jurisdiction was ousted. In the light of this, I order that the issue of the two letters be tried by evidence on oath before another High Court Judge other than Omoluabi, J. in the High Court of Edo State.

There will be no order as to costs.

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SC.100/1994