Hon. Justice Kalu Anyah & Ors Vs Dr Festus Iyayi (1993)
LawGlobal-Hub Lead Judgment Report
KARIBI-WHYTE, J.S.C.
This appeal of the appellants has raised again, the now common issue of the proper application of the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1994, relating to the exclusion of the jurisdiction of the courts in respect of acts done pursuant to the Decree. The Facts .- The facts of this case material to the action before the court are not in dispute.
Summarily stated, the 3rd appellant purporting to be acting in implementation of the Report of a Visitation Panel into the 4th appellant University, and on the directive of 1st and 2nd appellants terminated the appointment of the respondent, a member of the academic staff of the 4th appellant University. When plaintiff brought an action challenging the exercise by appellants of powers under Section 16 of the University of Benin Edict No. 3 of 1971, the appellants have now invoked the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 seeking to strike out the action on the ground that the Court lacked the requisite jurisdiction.
Fully stated the facts are as follows: By an instrument dated 11th day of July, 1986 under the hand of the President. Commander in-Chief of the Armed Forces, Federal Republic of Nigeria, and made by virtue of powers conferred by Section 13 of the University of Benin Law, 1971 as affected by Section 2 of the University of Benin (Transitional Provisions) Act, 1975, a Visitation Panel was constituted, and the members appointed. The general objective of the Visitation was “for the purposes of advising on the effective fulfillment of the objects and the due exercise of the function of the University as prescribed by law.” Of the seven terms of reference of the Visitation Panel, it seems to me (c) appears to concern the action instituted by plaintiff.
It reads: “(c) study the general atmosphere of the University over the period in question and, in particular, comment on the general disciplinary tone of the University, and the collective conduct and deportment of all die personnel of the University, especially the students, the staff and the Managers, and advise as to whether proper academic traditions and standards obtain and how any necessary or desirable corrections may be made including relationship between the University, on the one hand, and the host community and the wider society, on the other, over the period the question.”
The Visitation Panel concluded its assignment, and submitted its report of the visitor. The Visitor accepted the Report, expressed his views on the Report and directed the 4th appellant to implement the Report generally in the manner directed by him. The Visitation Panel found the respondent guilty of a serious breach of his terms of office as a public officer and recommended that he be relieved of his post as & public officer. Respondent was at the time, Lecturer Grade 1 in the University of Benin. The Visitor accepted this recommendation, and went further to spell out in considerable detail, the breach relied upon. I think I should add in amplification of the directive of the visitor that the 3rd appellant Governing Council before receiving this directive, and on the 20th May, 1987, had already independently considered respondent’s case and on the basis of the facts before them about and for the same reasons terminated respondent’s appointment forthwith giving him three months’ salary in lieu of notice. The visitor endorsed this action. The action in the High Court On the 2 1st May, 1987, respondent issued a writ of summons, claiming from the defendants as follows:
“(a) A Declaration that the purported termination of the plaintiffs appointment conveyed in the defendant’s letter dated 20th May, 1987 is ultra vires the defendants, contrary to the provisions of Section 16 of the University of Benin Edict No. 3 of 1975 and the University of Benin (Transitional Provisions) Decree No. 20 of 1975 and contrary to the principles of natural justice, null and void and of no effect whatsoever.
(b) A Declaration that the proceedings and decision of the Council of the defendants held on the 19th May, 1987 wherein it was decided to terminate the appointment of the plaintiff is null and void and of no effect whatsoever.
(c) An Injunction restraining the defendants, their, servants, agents and/or privies, from preventing the plaintiff from performing his functions and duties as Lecturer Grade 1 in the Department of Business Administration, University of Benin or from interfering with the enjoyment of the plaintiff’s rights, privileges and benefits attached to his office.”
On the 2nd June, 1987, other persons who were also affected by the Report of the Visitation Panel, applied to he joined as co-plaintiffs to the action; and for an order amending the writ of summons to select the joinder. They also sought an interlocutory injunction against the defendants pending the determination of the suit. They are Professor, I.E. Sagay, Dr. B.A. Agbonifoh, Engr. P.A.S. Otaigbe, Prof. J.S. Omene and Prof. L. I. L Ndika. The action was fixed for Monday the 8th June, 1987 for mention. The application to join the others affected by the Report of the Visitation Panel came up for hearing, the same day. The appellants, by their learned counsel, Mr. Mudiaga Odje, SAN raised a preliminary objection to the jurisdiction of the court. He submitted that by virtue of die Public Officers (Special Provisions) Decree No. 17 of 1984, the High Court lacked jurisdiction to hear the action. He asked that the claim be struck out. The joinder of the co-plaintiffs was also objected to. Learned counsel to the respondents opposed the application. The learned trial Judge overruled the objections. He held that the respondent was competent to institute the action, and that the other co-plaintiffs could be joined in the action. The prayer for interlocutory injunction was refused. In the Court of Appeal Appellants appeal to the Court of Appeal succeeded in part.
On the 13th January, 1988 the Court of Appeal unanimously dismissed the appeal on the issue of jurisdiction. The appeal against joinder of the 2nd-6th plaintiffs was allowed. 2nd-6th plaintiff have not appealed against the decision setting aside their joinder as co-plaintiffs. “The Court of Appeal in considering the question of the jurisdiction of the learned trial Judge to hear the action relied on its construction of the University of Benin (Transitional Provisions) Decree No. 20 of 1975 and the Public Officers (Special Provisions) Decree No. 17 of 1984, to hold as follows: “It is my view that while it can be said that sub-section (4) of Section 3 of Decree No. 17 clearly and ambiguously ousted the court’s jurisdiction. This is only so in respect of disciplinary decisions taken by, the appropriate authority in respect of public officers.
It is my view that where such decisions are not taken by some one or body not covered by the definition of appropriate authority in Section 4(2)(ii) of the Decree, such decisions do not come within the ambit of Decree No. 17 so as to render them unchallengeable in court if improperly or invalidly taken.” In the application of this interpretation to the facts of this case, the court below said:- “The 1st respondent’s appointment was terminated on 20th May, 1987 by a decision of the 3rd appellant and conveyed to the 1st respondent by a letter of that date. That termination is the subject matter of 1st respondent’s claims in these proceedings. The 3rd appellant obviously took the decision to terminate the appointment of the 1st respondent in exercise of the powers vested in it by Section of Law No. 3 of 1975, of Mid-Western (now Bendel) State, (hereinafter is referred to as Law No. 3) as incorporated into Act No. 20 of 1975 by Section 3(l) thereof. Law No. 3 remains in force subject to repeals in Section 7 and power of amendment in Section 6 of Act No. 20 of 1975. There is nothing to show that in taking that decision the 3rd appellant was acting on the authorisation of the Head of the Federal Military Government as provided for in Section 4(2)(ii) of Decree No. 17” Quoting paragraph 5 of 2nd appellant’s affidavit which deposed in part as follows “.
The plaintiff was removed from his post by the 3rd defendant on the ground inter alia, of his breach of die code of conduct for Public officers and his said removal from office was subsequently endorsed by the visitor of the 4th defendant, being the Head of ,State.” The Court of Appeal concluded that the above deposition, showed “clearly that the 3rd appellant took the decision to terminate in its best judgment and not as a result of any one’s urging.” The Court of Appeal also agreed with the learned trial Judge in his construction of the provision of Section 4(2)(ii), of Decree No. 17 of 1984, that die visitor is not an “appropriate authority” within the decree. The Court agreed that the President, Commander-in-Chief of the Armed Forces, is also the visitor to the University. It was held that when acting as visitor in accordance with the powers vested in him by the statute creating the University, he cannot exceed those statutory powers. The Court of Appeal then concluded as follows: “When acting as a Visitor to a University, the President Commander-in-Chief of the Armed Forces is not an ‘appropriate authority’ within the meaning of that expression in Decree No. 17 as the Visitor is not covered by the definition of the expression in Section 4(2)(ii) thereof” The Court went on to hold relying on paragraph 13 of the 2nd appellant counter-affidavit, and Exhibits 6,7 in these proceedings that the President, Commander-in-Chief acted throughout in this matter as visitor to the 4th appellant.
The Court of Appeal having held that the President acted as Visitor and not as Head of State, and that the Visitor is not an “appropriate authority” as defined in Section 4(2) (ii), it came to the conclusion that the provisions of Section 3(3) and (4) of Decree No. 17 of 1994 were not applicable to this case: Wilson v. Attorney-General of Bendel State & Ors was relied upon.
In the Supreme Court Appellants with leave of the Court below granted on the 26th January, 1988 have appealed against the judgment of the court delivered on the 13th January, 1988. The notice of appeal filed contained four grounds of appeal. Each of the grounds of appeal was directed at the construction of the applicable provisions of the Public Officers (Special Provision) Decree No. 17 of 1984. These findings have been challenged before us as they were challenged in the Court below. Dr. Odje SAN for the appellants submitted before us that the construction by the Court of-Appeal of the provisions of Sections 1, 3 and 4 of the Public Officers (Special Provisions) Decrees No. 17 of 1984 and S. 2 of the University of Benin (Transitional Provisions) Act No. 20 of 1975 in their combined effect to their application to the facts of this case was erroneous.
He argued that the claim of the respondent being one based on, or arising from the removal from office, the court lacked jurisdiction to entertain the Suit. Grounds I and 3 impugned the holding that neither the Council of the University of Benin nor the President, Commander-in-Chief are within the definition of “appropriate authority” in S.4(2)(ii) of the Decree. Ground 2 was a challenge of the view that the President, Commander-in-Chief was acting only as Visitor and
Other Citation: (1993) LCN/2504(SC)
