Evaristus D. Egbebu V. The Inspector General of Police & Ors (2005)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
This is an appeal against the decision of the Federal High Court, Holden at Port Harcourt, declining jurisdiction to hear and determine the suit of the Appellant.
The Appellant, as Plaintiff before the trial Court (and shall herein after be referred to simply as the Appellant), had taken out a suit No. FHC/PH/54/97 at the Federal High Court, Port Harcourt, seeking the following reliefs:
- A declaration that non of the three investigating panels set up to investigate the Hausa Traders armed robbery incident of 1990, found the plaintiff guilty of any collusion with the Armed Robbers or of any dereliction of duty.
- A declaration that compulsory retirement of the plaintiff having been based on the incident of the Okigwe Hausa Traders incident of 1990, of which the Plaintiff has been absolved of any complicity is wrongful, unfair and unsustainable.
- An order of Court setting aside the compulsory retirement of the contained in a letter No F.1036/95 dated 6th March, 1991.
- An order of Court for the reinstatement of the plaintiff to his rank in the Nigeria Police Force without loss of seniority, and payment of all salaries, emoluments and entitlements from 27th October, 1990, till determination of this case.
OR IN THE ALTERNATIVE
- An order of court that plaintiff be paid his salaries and entitlement from 27/10/90 (date of compulsory retirement) 31st July, 2013, being the date plaintiff complete 35 years in service as provided in the civil service Rules.
The Appellant had obviously been compulsorily retired from the Nigeria Police Force, his chosen career.
Upon Notice of Preliminary Objection field by the Defendants (two shall hereafter be referred to simply as the Respondent) the jurisdiction of the Federal High Court to hear and determine the suit of the Appellant was challenged. The Respondents cited and relied upon the ouster clause of section 3(3) of Decree No 17 of 1984 as having taken away the jurisdiction of the Federal High Court.
After taking arguments from both sides, the learned judge of the Federal High Court delivered a Ruling declining jurisdiction and thereby striking out the suit of the Appellant.
Dissatisfied by the decision of the Federal High Court, the Appellant has come before this Court upon a total of four grounds of Appeal urging us to reverse the decision of the trial Federal High Court and to remit the suit for trial on the merit by the Court.
The Appellant formulated two issues upon the four grounds of Appeal filed. These are:
- Whether the defendant/respondents complied with the provisions of Decree No 17 of 1984 to warrant the enforcement of this ouster clause.
- Whether the ruling of the lower Court is sustainable in view of the provisions of the AFRICA CHARTER ON HUMAN AND PROBLEMS RIGHT (RATIFICATION AND ENFORCEMENT) ACT CHAPTER 10 LAWS OF THE FEDERATION OF NIGERIA 1990.
- Whether the lower Court had jurisdiction to entertain the matter.
The Respondents abandoned the third issue formulated as no argument was proffered on same. Issue No. 3 accordingly hereby struck out.
The appeal shall be determined on the issues formulated by the Appellant which issues I find as flowing directly from the grounds of appeal.
The Appellant’s stance is to fault the Respondents’ reliance on the ouster clause in section 3(3) of the Decree No 17 of 1984. It is the submission of the learned Counsel that although the Appellant was said to have been compulsorily retired under the provisions of Decree No.17 of 1984, no evidence was placed before the trial Court to convince the Court that the provisions of the said Decree were actually complied with. The trial court was thus, not in a position to determine that the 1st Respondent the Inspector-General of Police, who signed the letter of compulsory retirement actually had the requisite authorization to take such a decision. Counsel cites the authority of the case of FCDA V. Alh. Musa Naibi (1990) 3 NWLR (pt 138) 270 at 280 to buttress his argument.
It is further the postulation of the learned Counsel that Exh PF, the letter which conveyed to the Appellant, the fact of his compulsory retirement state that the 1st Respondent derives his powers to issue those orders from the instrument of authority conferred on him by the President, Commander in Chief of the Armed Forces as contained in the instrument of delegation given and issued on the 6th day of a July, 1989.
The said instrument was however not placed before the trial Court. Calling in aid the authority of the Supreme Court decision in the case of Katto v. CBN (1981) 9 NWLR (Pt 214) p 126 at 145, the learned Counsel submits that a mere assertion in Exh PF is not sufficient. Counsel maintains that the non-production of the said instrument of authorization was an invitation to the Court to act on instinct which a court of law is allowed to do.
It is further the assertion of the counsel that in determining whether it has jurisdiction, the trial court is obliged to determine whether the Respondent acted properly and in accordance with the provisions of the said Decree No. 17 of 1984.
The trial court, declared, the learned Counsel, failed to so determine the legitimacy of the decision and therefore delivered a Ruling without the requisite evidence essential for such a decision. The learned Counsel also relies on the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) p 688, and urges us to hold that the trial Court was wrong holding that the power to retire the Appellant was given to the Inspector General of Police via the instrument of delegation dated 6/7/89.
Referring to the ouster clause in section 3(3) of the Decree No. 17 of 1984, and its judicial interpretation, the learned Counsel to the Respondents asserts that there is no law which requires the Head of State (President) to personally sign a document before it could be admitted. Counsel cites the decision of the Supreme Court in the case of the Att-General of the Federation v. Shita Bay (1998) 10 NWLR PT 570 P 392 as his authority. Also relied upon is the case of Nwosu v. Imo State Environmental Authority (supra).
It is further the submission of Counsel that upon the provisions of section 150(1) of the Evidence Act, when it is shown that any person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act. The learned Counsel reasons that the Inspector-General of Police who issued Exh. PF is a person authorized by the President to issue such letters as contained in section 4 (2) (b) of Decree No. 17 1984 and also as stated in the case of Att.-General v. Shita-bay, (supra). Counsel states that the case FCDA & Katti CBN (supra) V Alh. M Naibi (supra) are not applicable.
It is also the contention of the learned Counsel that by virtue of Para 55-58 of the Plaintiff’s statement of claim, he admitted that he was retired from the public service under the provision of Decree No. 17 of 1984, which position, argues Counsel, was re-enforced by Exh PF annexed to the Plaintiff counter -affidavit. Having so admitted, purports Counsel, the Appellant cannot challenge his retirement as he is bound by the ouster clause of section 3(3) of the said Decree.
Counsel portends that by the decision of Judicial Service Commission v. Omo (1990) 6 NWLR Pt 157 p 407, the fact that an instrument by which appropriate authority does an act or matter or thing does not say on the race of it that the act or matter or thing was done under Decree No. 17, 1984 will not deprive the appropriate authority of the benefits of immunity against civil proceedings, if it is shown that the act or thing or matter was purported to be done under-the Decree.
The crux of this appeal appears to be the perceived haste with which the learned Judge of the Federal High Court, declined jurisdiction at the dawn of a preliminary objection raised by the Respondents before the trial Court.
By the argument preferred before us the Appellant claims that the Federal High Court was not, at that preliminary stage, presented with the essential evidence of the authority, which enabled the IGP to issue Exh. PF, the letter of compulsory retirement to the Appellant.
A close look at the terms of the relevant sections of Decree No. 17 of 1984 is imperative.
Section 1 (1) of the Decree authorizes an appropriate authority to:
“(i) …dismiss or remove a Public Officer summarily from his office OR:
(ii) retire or require the public Officer to compulsory retires from the relevant Public Service.”
(iii)
An “appropriate authority” is defined in section 4(2) of the Decree as:
“(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 authorized by him”
AND
“(b) in any other cases shall be the President or any person authorized by him or the Armed Forces Ruling council.
By this definition five categories of persons are made out as appropriate authority”.
These are: – the case of a State
(a) “i. The Military Governor; or
ii. any person authorized by him”
In any other case,
(b) “iii The President; or
iv. any person authorized by him; OR
v. The Armed Forces Ruling Council”.
The bone of contention of the Appellant is who is “any person authorized” and what is the instrument of authorization in order to determine that the letter of compulsory retirement to emanated from the “appropriate authority?”
Exh. PF recorded on page 15 of the Records of this Appeal is the letter of compulsory retirement served on the Appellant. The 1st Respondent, the Inspector General of the Police, not being one of the person clearly named by section 4(2)(a) & (h), states that the derives he powers of summary dismissal from an instrument of delegation of authority conferred on him by the President, Commander in Chief of the Armed Forces. The instrument of delegation is said to have been given and issued on the 6th day of July 1989. The said instrument was not produced before the Court. This is what agitated the Appellants and rightly so, I must say. As rightly submitted to by learned Counsel to the Appellant, a mere assertion of the possession of an instrument of authorization is not sufficient.
It is the contention of the learned Counsel for the Respondent that the document delegating need not be before the Court once Court is convinced of a particular assertion. How, one is wont to ask, is the Court convinced of the existence of the document except by its production in Court? If such exist, why was it not produced before the trial Court?
The argument that by virtue of para. 55-58, the Plaintiff himself admitted and therefore bound by the ouster clause of section 3 (3) of the said Decree is of no consequence, being totally untenable.
The point is that a public officer was compulsorily retired purportedly under a law which oustered the Jurisdiction of the Court to inquiry in to the proprietary of such a decision. The enormous effect of such a law is one which requires a special provision for the manner of its being executed.
Section 4 says persons named, if specifically so authorized may issue such weight orders of compulsory retirement. Thus, for an act to be valid, it must be shown to have been by the appropriate authority/authorized person.
Only when it is established unequivocally that the act was done by the appropriate authority may the coercive powers of the ouster clause come in to operation. In other words, the decision to retire compulsorily becomes unquestionable or non-challengeable in Court only when it is done by the appropriate authority. If it is done by the appropriate authority, then, the court of law must move to remedy the illegality. This, in my humbly opinion is the case of the Appellant. This view is borne out by the provisions of section 3(3) of the Decree No. 17 of 1984.
“No civil proceeding shall lie or be instituted in any Court for or on account of or in relation to any act, matter or thing done or purported to be done by any person under this decree and if such proceedings have been or are instituted before, or after the making of this decree, the proceeding shall abate, be discharged and made void”
What then is the effect of the non- production of the said instrument of 6th day of July, 1989? The simple answer is that without the said instrument, the learned trial Judge of the Federal High Court was bereft of the requisite information/evidence to decline jurisdiction. The production of the said document was an essential part of the affidavit evidence at the hearing of the preliminary objection.
Issue No. 2 as formulated has not been adjudicated upon by the trial Court. This Court is not one of 1st instance and cannot therefore address the said issue as presently formulated. No decision of the trial Court on the said issue has been presented to us for review. We must therefore refrain from considering the said issue which is hereby discountenanced.
The end result is that the suit of the Appellant must be and is hereby remitted to be heard and determined by another judge of the Federal High Court on the merit.
Consequentially, the Ruling of the High Court Coram P.E. Olayiwola delivered on the 26th is hereby, set aside.
I make no order as to cost.
Other Citations: (2005)LCN/1802(CA)
