E.A. Emuze V The Vice Chancellor, University Of Benin (2003)
LAWGLOBAL HUB Lead Judgment Report
D.O. EDOZIE. JSC
This appeal deals with wrongful termination and raises the vexed question as to whether the Head of State in exercising his power as the Visitor of the University of Benin can lawfully terminate the appointment of an employee of the University pursuant to Decree No. 17 of 1984, now known as Public Officers (Special Provisions), Act Cap 381 Volume 21, Laws of the Federation 1990, (Act for short)
The Appellant, E.A. Emuze was on 14th September, 1970 appointed by the University of Benin, the 2nd Respondent, as Executive Officer Accounts and in 1974, he rose to the post of Accountant. Thereafter, in 1977 he was deployed to the Internal Audit Department as a Principal Accountant. He remained in that department until 1987 when the Head of State, who was also the Visitor to the University set up a Visitation Panel to look into the affairs of the University between 1975 and 1985. On the completion of its assignment, The Visitation Panel submitted its report to the Visitor who thereafter issued a White Paper containing in paragraphs 28 and 29 thereof a directive to the Governing Council of the University to the following effect:-
“28. Recommendation:-
As early as possible, the Council should seek expert guidance for the purpose of ensuring that things are put right in the Internal Auditing aspect of the University operation.
Comment:-
The Visitor noted the serious indictment of the Internal Audit Department of the University and directs that all efforts should be made to put things right. As a first step, the Governing Council of the University is directed to terminate the appointment of the Chief internal Auditor, Mr. E.A. Emuze.”
In the implementation of the above directive, the Acting Registrar and Secretary of the Governing Council of the University, Mr. R.A. Williams addressed a letter No. REG/RO/C/38/199 of 20th May, 1987 to the Appellant terminating his appointment. The letter reads as follows:
“REG/R0/C/38/199
20th May, 1987
Mr. E.A. Emuze,
Internal Audit,
University of Benin,
Benin City.
Dear Mr. Ezume,
The Visitor’s View on the report of the Visitation Panel to the University of Benin, 1975 – 1985.
Consequent upon the White Paper arising from the above report, I am directed to convey to you the directive of the Visitor, the President, Commander in-chief of the Armed Forces of the Federal Republic of Nigeria, Major-General Ibrahim Badamosi Babangida, in exercise of the powers conferred on him as the Visitor to the University of Benin, that your appointment as Principal Accountant (Internal Audit) be terminated with immediate effect for lack of expert guidance in the Internal Audit and for your inability to ensure that things are put right in the Internal Auditing aspect of the University operation.
Accordingly, your appointment is hereby terminated with immediate effect.
By endorsement of this letter, the Acting Bursar is being requested to pay you your entitlements less any indebtedness to the University.
You should hand over all University properties in your possession to Mr. M.E. Ekeoba, Accountant Grade II and vacate your office quarters with immediate effect.
Yours sincerely,
R.A. Williams
A.g. R
The Appellant reacted by instituting an action culminating in the present appeal. In that action, filed at the Benin High Court as suit No. B/312/92 dated 8th June, 1992, he claimed against the Respondents, as Defendants, the sum of Forty-Five Thousand Naira special damages for wrongful termination of his appointment as Principal Accountant in the Internal Audit Department of the University of Benin. Pleadings were duly filed and exchanged. In paragraph 12 of the Respondents’ joint statement of defence, the Respondents maintained that the court lacked the jurisdiction to try the suit by pleading thus:-
“12. At or before the trial, the Defendant shall contend that under the Public Officers (Special Provisions) Decree No 17 of 1984 and the Federal Military Government Supremacy and Enforcement of Powers) Decree No 13 of 1984 respectively, the Plaintiff’s complaint in this case is not justiciable and this Honourable court consequently lacks the jurisdiction to entertain same.”
Subsequent to filing their statement of claim, the Respondents filed a motion on notice praying the trial court for an order setting down for hearing before the trial of the suit, the point of law raised in the aforementioned paragraph 12 of the statement of defence. The motion was supported by a 13 paragraph affidavit and a 7 paragraph further and better affidavit setting out the facts narrated above. Annexed to the supporting affidavit and further and better affidavit were respectively the letter dated 20th May 1987 terminating Appellant’s appointment, Exhibit ‘A’ and the relevant part of the Government white Paper Exhibits B, BI.
The motion came up for hearing before Akhigbe J, who after taking arguments from learned counsel on both sides delivered a reserved ruling on 30th November 1995 which he concluded as follows:-
“I am however satisfied that Exhibit ‘A’ was issued on the directive by(sic) the appropriate authority to the Governing Council of the University and therefore comes within the provision of Decree No. 17 of 1984 and I so hold. Accordingly, this application succeeds and this suit is hereby struck out for want of jurisdiction pursuant to Decree No. 17 of 1984. I make no order as to costs.”
Against that ruling, the Appellant lodged an appeal to the Court of Appeal, Benin Judicial Division which in a unanimous judgment delivered on the 1st day of April, 1998 dismissed the appeal when in the last paragraph of its judgment at page 96, it held thus:-
“In the result, I have no doubt in holding that the respondents clearly satisfied the lower court that the action taken against the appellant in their letter in question was authorised by the appropriate authority as defined under section 4(2)(ii) of the afore-mentioned Decree No. 17 of 1984. The effect, therefore, is that the jurisdiction of the lower court to entertain the action was effectively ousted under section 3(3) of the same Decree. There is therefore no merit in the appeal. I accordingly dismiss it. But I will make no order as to costs.”
Dissatisfied with that judgment, the Appellant has lodged a further appeal to this Court based on only one ground of appeal which reads:-
Ground of Appeal
The learned Justice of the Court of Appeal erred in law in dismissing the appeal of the Appellant when the High Court had jurisdiction to entertain the claim.
PARTICULARS OF ERROR
When Decree No. 17 of 1984 is not applicable to the case.
When it is clear that the appropriate authority did not terminate the appointment of the appellant.
The parties filed and exchanged briefs, which they adopted in the consideration of the appeal. In the appellant’s brief, one issue was identified as arising for determination. That issue which was adopted by the Respondents, reads thus:-
“Whether the learned Justices on Appeal were right in holding that the High Court lacked jurisdiction to entertain the case of the Plaintiff (appellant) having held that the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria acted as a Visitor to the University of Benin in directing the termination of the appointment of the Plaintiff (Appellant)?”
In arguing the lone issue for determination, learned counsel to the Appellant, in his brief of argument referred to the letter Exhibit ‘A’ by which the appointment of the Appellant was terminated pointing out that the letter disclosed that the Head of State in directing the termination of the appointment of the Appellant was exercising the power conferred on him as the Visitor of the University pursuant to the statute creating the University. Counsel cited the cases of Garba & Ors. V. University of Maiduguri & Ors (1986) 1 NWLR (Pt.18) 550 and Anya V. Iyayi (1993) 7 NWLR (Pt.305) 290 at 315 to submit that the powers of the Head of State are distinct and separate from those of the Visitor. He then submitted that the Head of State acted as Visitor to the University of Benin in terminating the appointment of the appellant and not as Head of State and the appropriate authority with powers to remove any public officer from office in accordance with the provisions of Decree No. 17 of 1984, or Public Officers (Special Provisions) Act Cap 381 Volume XXI, Laws of the Federation of Nigeria 1990.
In his response to the above submissions, learned counsel to the Respondents stated that the statute establishing the University of Benin is the University of Benin (Transitional Provisions) Act, Cap 452 of the Laws of the Federal Republic of Nigeria, 1990, and the Schedule to the Act titled University of Benin Law, 1995. Counsel referred to section 14(1) of Cap 452 of the Laws of FRN. 1990 which provided that the President shall be the Visitor of the University. It was then submitted that section 14(1) of Cap 452 of Laws of FRN 1990 did not draw any distinction between the exercise of the powers of the Visitor and that of the President. Learned counsel contended that the letter Exhibit A, by which the Appellant’s appointment was terminated, was issued at the instance of the appropriate authority as contemplated by section 4(2) of the Public Officers (Special Provisions) Act Cap 381 and therefore the Court of Appeal was right in holding that the trial court lacked the jurisdiction to entertain the Appellant’s suit.
Jurisdiction is a threshold issue. It is so radical that it forms the foundation of adjudication. If a court lacks jurisdiction, it also lacks the necessary competence to try the issue before it. A defect in competence is fatal for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be: Oloba V. Akereja (1988) 3 NWLR (Pt.84) 508, Barclays Bank Ltd V. Central Bank of Nigeria (1976) 6 SC. 115, Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350, Management Enterprises Ltd V. Otusanya (1987) 2 NWLR (Pt.55) 179.
In the instant case both the trial High Court and the Court of Appeal held that the Appellant’s suit was not justiciable by virtue of the ouster clause in the Public Officers (Special Provisions) Act, supra which ousted the jurisdiction of the court to try t. For better appreciation of the contentions of counsel, the relevant provisions of the Act are reproduced hereunder:-
PAGE| 8
“1 (i) 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 the relevant public service.”
(underlining for emphasis)
Section 3(3) of the Act provides that:-
“3(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 Decree and if any such proceedings have been or are instituted before, on or after the making of this Decree, the proceeding shall abate, be discharged and made void.”
The term “appropriate authority” is defined in section 4(2) as follows:-
“4(2) in the operation of this decree, the appropriate authority:-
(a) 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
(b) in any other case, shall be the President or any person authorised by him or the Armed Forces Ruling Council.”
By section 3(3) of the Act reproduced above, no civil proceedings shall lie or be instituted in any court in respect of any act done or purported to be done under the Act. The courts do guard their jurisdiction jealously and zealously and as such any enactment, which takes away a citizen’s right of access to the court ought to be construed very narrowly against anyone claiming its benefit, that is, fortissime contra proferentes. See Peenok Investment Ltd V. Hotel Presidential (1983) 4 NCLR 122. Ouster clauses are interpreted more liberally on the side retaining and preserving the court’s jurisdiction vide Barclays Bank of Nigeria V. Central Bank of Nigeria (1976) 1 All NLR. (Pt.1) 409.
In Nwosu V. Imo State Environmental Authority, (1990) 2 NWLR. (Pt.135) 688 at 723, this court laid down certain guiding principles in the interpretation of ouster clauses as follows:-
“Certain principles guide the court in such an exercise. If there should be any doubt, gap duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or a deprivation of his right: see London and Country Commercial Properties Investments Ltd V. Attorney-General (1953) 1 All E.R 436 at p. 441-402. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction: Tuck and Sons V. Priester (1887) 19 QBD 629 at 638. If there is any doubt as to whether the person to be penalized or to suffer a loss of the right comes fairly and squarely within the plain words of the enactment, he should have the benefit of that doubt, I.R.C V. Duke of Westminster (1936) AC 1 at P. 18. See on these, Maxwell: on Interpretation of Statutes (12 Edn.) p. 239. If after the above approach and the application of the above principles the person to be affected comes squarely and fairly within and is affected by the words of the statue, the court has no alternative than to apply it.”
In the instant case, for there to be a valid exercise of power under the Act, in question, three conditions must be satisfied viz, (a) the person whose appointment is affected is a public officer within section 277 of the Constitution 1979 (now section 318 of 1999 Constitution) (b) the grounds for the exercise of the power are laid within those prescribed in section 1(1) of the Act and (c) the power is exercised by the appropriate authority or any person authorised by him. In the instant case, there is no dispute over (a) and (b) above. The dispute centers on condition (c). The Appellant contends that his appointment was not terminated by the appropriate authority as defined in section 4(2) of the Act but the Respondents hold a contrary view. It is patent from Exhibit ‘A’ that is, the letter by which the Appellant was notified of the termination of his appointment that the termination was made by the Governing Council of the University of Benin at the instance of the Visitor of the University.
The Visitor is not an appropriate authority as defined in section 4(2) of the Act but the President or Head of State, who is the appropriate authority happens to be the Visitor of the University. The narrow issue to be resolved is whether the visitor in exercising his power as the Visitor of the University is deemed to be acting as the President or Head of State pursuant to the Act.
This issue arose for determination in the case of Anya V. Iyayi (1993) 7 NWLR (Pt. 305) 290 and in discussing it I can do not better than refer to the opinion of this court per Karibi-Whyte JSC at pp 314, 315 where he said-
“I do not find the rather imponderable submission of Dr. Odje that the Head of State acting as Visitor in a dual capacity both as Head of State was an appropriate authority in the exercise of powers under the University of Benin (Transitional Provisions) Act No 3 sufficiently persuasive. It is clear from S.I. No. 18 of 1986 and the recital therein, the Instrument constituting the Visitation Panel to the University of Benin 1975-85 that the Panel was constituted by the Head of State as Visitor in exercise of powers conferred upon him by S.13 of the University of Benin (Transitional Provisions) Act No 20 of 1975. It can hardly be disputed that the powers of the Visitor can hardly be exercised by virtue of and under that law. The enabling section 14(2) of the University of Benin Law provides that:
“The Visitor shall as often as he may consider necessary, conduct a visitation which shall be conducted by such persons and in respect of any such affairs of the University as the Visitor may specify in the direction.”
I agree with Mr. Femi Falana Learned counsel to the respondent that even if the Head of State acting also as the Visitor of the 4th appellant was acting under and by virtue of the University of Benin law he can only exercise powers under section 14 of that Law. He cannot also, as submitted by Dr. Odje, S.A.N be acting as Head of State. The two powers and circumstances, which are mutually exclusive are not interchangeable. There is no doubt that the powers of the Head of State are distinct and separate from those of a Visitor. The powers were intended to be separate and separable and to be exercised under separate circumstances and conditions. The powers of the visitor are expressly conferred by law.
It has always been the law, and consistent with common-sense and the intention of the legislation that where statue confers specific or special powers on any person or authority for the performance of certain acts, it is only that person or authority and no other that is contemplated in the performance of the duties under the law. Accordingly, since the appointment of the Visitation Panel was a creation of the University of Benin Law and the powers to make the appointment and give directives implementing the reports is vested in the Visitor, it is only the Visitor that was intended.
It is immaterial that the Visitor is also the Head of State. He cannot exercise the powers of a Visitor to the University when acting in that capacity even as Head of State. This clearly is the law. It is intended to avoid confusion, obey the rule of law and abuse of powers.
It would seem to me that Dr. Odje was misled by the fact that the S.I No 19 of 1986, the instrument setting up the Visitation Panel was signed by the Head of State who is also the Visitor to the University. The explanation is that the Head of State signed the instrument in his legislative capacity, which is quite different from the capacity of Visitor vested in him by the University of Benin Law. He was therefore not acting as Head of State when he was acting as a Visitor. As I have already stated above, I agree with the Court of Appeal that-
“Although the President, Commander-in-Chief of the Armed Forces s by law, the Visitor to all Federal Universities in Nigeria… but when he acts as Visitor to a University, he acts in accordance with powers vested in him by the statue creating the University and he cannot exceed those powers – See Garba & Ors V. University of Maiduguri & Ors (1986) 2 SC. 128, (1986) 1 NWLR (Pt.18) 550.”
The sum total of all that has been said above is that the Visitor of the University in implementing the report of the Visitation Panel was not acting or exercising the powers of the Head of State. Therefore, in the instant case, Exhibit A, the letter by which the appointment of the Appellant was terminated was not issued by the Head of State or by any person authorised by him. That being the case, the termination of the Appellant’s appointment did not fall within the ambit of the Public Officers (Special Provisions) Act so as to oust the jurisdiction of the court. The two lower courts were in error to have held otherwise.
In conclusion, the appeal is allowed. The judgment of the Court of Appeal is set aside. The appellant’s suit is transferred to the High Court, Benin for expeditious determination before another Judge other than Akhigbe J. The sum of N10,000.00 costs is awarded to the Appellant against the Respondents.
SC.102/1999
