Lucky E. Avwunuketa V. National Electric Power Authority (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from the ruling delivered by Abutu, J, sitting at the Federal High Court, Benin City on 19th February, 1997, in suit No. FHC/B/19/95. The appellant, Lucky E. Avwunuketa, as plaintiff, had instituted the action against the respondent (NEPA) as defendant.

The plaintiff’s claim as endorsed on the writ of summons and repeated in paragraph 24 of the statement of claim is as follows:

“1. A declaration that the purported letter of termination issued by the defendant dated 25/10/94 is contrary to NEPA Staff Conditions of Service 1978 which governs the relationship between him and the defendant and is therefore wrongful, void and of no effect whatsoever.

2. A declaration that the plaintiff holds and is still holding a permanent pensionable appointment as officer IV (Stores) in the employment of the defendant at Sapele Power Station, Ogorode, Sapele.
3. An order reinstating the plaintiff as Store Officer (IV) in the employment of the defendant.

Alternatively,

4. An order directing the defendant to pay the plaintiff salaries and allowances attached to his post as Officer IV (Stores) until he attains the retirement age of 60 years in accordance with the defendant’s conditions of services, 1978″.

The respondent, as defendant, after filing its memorandum of appearance, it also filed its statement of defence. It thereafter filed a motion dated 19th June, 1996, in which the following relief was sought from the court:

‘An order to strike out this suit for want of jurisdiction.’

The motion was supported by a six paragraph affidavit deposed to by Oshodi Bamidele, a Personnel Manager with the defendant. Two documents were attached to the affidavit as Exhibits A & B. The main facts relied on in support of the motion are contained in paragraphs 3 and 4 of the affidavit. The two paragraphs read as follows:

3. That I am reliably informed by the Honourable Minister of Power and Steel, Alhaji Bashir Mohammed Dalhatu and Mr. S. A. Kida, General Manager (personnel Administration) of the defendant and I verily believe that the plaintiff’s appointment with the defendant was terminated by the defendant in a letter dated 25th October, 1994, after and pursuant to a delegation of authority so to do by General Sani Abacha the Head of State and Commander in Chief of the Armed Forces of Nigeria in a letter dated 8th August, 1994. A copy of the termination letter dated 25th October, 1994 and the Head of State’s letter dated 8th August, 1994 are attached hereto and marked Exhibits A and B respectively.
4. That I have been informed by the Solicitor to the defendant/applicant Adewoye O. Idode, Esq. and I verily believe that the plaintiff’s appointment with the defendant has been validly terminated in accordance with the provisions of the Public Officers (Special Provisions) Decree No.17 of 1984 which ousts the jurisdiction of this Honourable court”.

The first of the two documents attached to the affidavit is a letter dated 25th October, 1994 (Exh. A) titled ‘Termination of Appointment’, addressed to the appellant and signed by one S.A. Kida, General Manager (personnel/Administration) for the respondent. The letter reads as follows:

General Manager (Pers/Admin.) 25th October, 1994

L.E. Arwunuketa,

Officer IV (Store)

Headquarters ufs: AGM(G) Sapele Power Station

Ref: 02120.4/1356/94

TERMINATION OF APPOINTMENT

Management regrets to inform you that your services are no longer required by the Authority.

Your appointment is hereby TERMINATED with immediate effect.

You have ceased to enjoy all rights and privileges applicable to members of staff of the Authority. You should surrender your Identity Card to the Assistant General Manager (G), Sapele Power Station, Sapele.

You should arrange in your own interest, to liquidate your indebtedness to the Authority, if any, to avoid litigation.

The General Manager (Finance & Accounts), Headquarters has been advised by a copy of this letter to pay you your one month’s salary in lieu of notice.

Your entitlements, if any, will be computed and paid to you accordingly.

Acknowledge receipt of this letter by signing and returning the attached duplicate copy to this office promptly, through the Assistant General Manager (Gen.), Sapele Power Station, Sapele.

(SGD)

S.A. KIDA

GENERAL MANAGER (PERS/ADMIN)”.

The second document (Exh. B) is another letter dated 8th August, 1994, written and signed by General Sani Abacha, Head of State, Commander-in-Chief of the Armed Forces of Nigeria. It is addressed to the Hon. Minister Ministry of Power and Steel, lkoyi, Lagos. The letter is titled: ‘Case of sabotage to NEPA installations and has an attachment containing a list of two categories of names: 224 names of officers whose appointments were to be terminated and 40 names of those who were to be dismissed from the service. The letter reads as follows:

“State House

Abuja

8th August, 1994.

The Honourable Minister

Ministry of Power and Steel

Federal Secretariat

Phase 1

Ikoyi – Lagos.

CASE OF SABOTAGE TO NEPA INSTALLATIONS

Upon giving due consideration to the report you submitted concerning various acts of economic sabotage and willful damage to NEPA installations by identified NEPA employees, I hereby invoke and delegate to you my powers under the Public Officers (Special Provisions Decree) No. 17 of 1984 to terminate and/or dismiss the 264 persons whose names appear on the termination/dismissal list. It is deemed that their continued employment with NEPA would not be in the public interest. The termination or dismissal letters may be signed by yourself or any officer with the National Electric Power Authority and that this be done immediately.

(SGD)

SANI ABACHA

General

Head of State, Commander-in-Chief of the Armed

Forces of Nigeria”.

The appellant’s names appears as number 216 on the list of those whose appointments were to be terminated, (and on page 25 of the record of appeal). The motion was opposed by the appellant. To that end, an eleven paragraph counter-affidavit deposed to by the appellant was filed. The matter thereafter came up for hearing before Abutu, J. After taking submissions from counsel for the parties, the learned trial Judge delivered his reserved ruling on 19th February, 1997. The learned Judge held, inter alia, as follows in the concluding paragraph of his said ruling:

“In the result, I hold that the plaintiff was in the instant case removed from the office of the defendant in exercise of the powers conferred by section 1(1) of Decree No. 17 of 1984. I hold that having regard to the provisions of section 3(3) of the Decree that the jurisdiction of this court to hear and determine the present suit is ousted. I do therefore hereby decline jurisdiction. The suit is hereby struck out for want of jurisdiction”.

The appellant was very dissatisfied with the ruling and has, accordingly, appealed against it to this court. The parties filed their brief of argument in this court. The appellant originally formulated three issues in the appellant’s brief. But at the hearing, the third of the issues was abandoned and struck out. The two remaining issues read as follows:

“1. Was the letter of termination of appointment of the plaintiff/appellant, Exhibit A, issued by the appropriate authority as envisaged by Decree 17?

2. Whether any authority which does not come within the definition of appropriate authority comes within the provision of section 7(2)(i) of the Decree No. 17.

The respondent also formulated two similar issues in the respondent’s brief which I consider not necessary to reproduce. The two issues formulated by the appellant were argued together in the brief. It is submitted that in order to validly exercise the powers under the Public Officers (Special Provisions) Decree No. 17 of 1984, the following conditions must be satisfied:

(a) that the person whose appointment is affected must be a public officer within section 277 of the 1979 Constitution;

(b) that the grounds for the exercise of the power must come within those prescribed in section 1(i) of the Decree; and

(c) the power must be exercised by the appropriate authority or any person authorised by him.

It is submitted that in the instant case, the appropriate authority within the con of the Decree should be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council and that such does not admit of any enlargement by construction. This particular condition is said not to have been met in the instant case. This is because the management on whose behalf Mr. S.A. Kida wrote the letter, Exhibit A, is said not to be the appropriate authority as strictly envisaged by the said Decree. It is further argued that a look at paragraph 1 of the letter (Exh.A) shows that the said Mr. S.A. Kida did not act under the Decree but on behalf of the management of NEPA, which is not an appropriate authority. Since the management of NEPA was not equipped with the power conferred by the Decree on the appropriate authority, the learned trial Judge is said to have acted erroneously when he held that he lacked jurisdiction to entertain the plaintiffs action before him.

It is submitted in reply in the respondent’s brief that the conditions prescribed by the Decree for removal of public officers were met in the instant case. It is argued that it was not in dispute that the appellant was a public officer. Similarly, it was not in doubt that General Sani Abacha who authorised the removal of the appellant was the Head of State of Nigeria as at the time he issued the letter already reproduced above and that he was an appropriate authority as defined in section 4(2)(b) of the Decree.

It is therefore submitted that since the requirements of the Decree were met, the lower court is therefore said to be in order in declining jurisdiction in line with the provisions of section 3(3) of the Decree.

It is necessary to say that the law invoked in the instant case is the provision of section 3(3) of the Public Officer (Special Provisions) Act. Cap.381, Laws of the Federation of Nigeria. 1990. That provision expressly ousts the jurisdiction of the court in respect of any act done or purported to be done under the act. The subsection provides as follows:

“3-(3) No Civil proceedings shall lie or be instituted 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”

There is no doubt that section 3(3) of the Act reproduced above is aimed at taking away vested rights of citizens without the victim having recourse to the law court. The law is trite that the attitude of the courts to such provisions is that the courts usually construe such provisions narrowly and strictly in order to ensure that the jurisdiction existing is preserved and not withdrawn without very clear words to that effect. See Anya v. lyayi (1993) 7 NWLR (Pt.305) 290; Peenok Investment Ltd v. Hotel Presidential Ltd. (1983) 4 NCLR 122 and F.C.D.A. v. Sule (1994) 3 NWLR (pt.332) 257.It follows therefore that every court saddled with construing the provisions of such laws is required to carefully and meticulously scrutinize such provisions with a view to ensuring that the provisions of such laws are strictly complied with. This is because if it is discovered that there was any slip in strictly complying with any of the provisions, such omission or failure would give room for the court to intervene and assume the jurisdiction which was originally sought to be ousted. Applying the principles of law enunciated above to the present case, it is necessary to ensure that all the requirements prescribed by the Act are strictly met. The determining factor in the instant case is whether the letter of retirement of appointment written to the appellant was issued by the appropriate authority as prescribed in section 1(1) of the Act. It is clear from the facts of the case, as already set out above, that the letter of retirement of appointment written to the appellant was written and signed by one Mr. S. A. Kida, General Manager, Personnel/Administration of NEPA the respondent. But it is also clear from the evidence on record that the letter in question was written in compliance with a directive contained in a letter written and signed by General Sani Abacha, the Head of State, to the Hon. Minister of Power and Steel in which the Head of State directed the Hon. Minister to issue the letter in question to the appellant, among others named in a list of names attached to the said letter from the Head of State. It is also clear from the contents of the Head of State’s letter, already reproduced above, that the Head of State also authorised any official of the Ministry below the Hon. Minister to issue the letter in question to the appellant. The term ‘appropriate authority’:is defined in section 4(2)(b) of the act as: “in any other case, shall be the President or any other person authorised by him or the Armed Forces Ruling Council.”

In Anya v. Iyayi (supra), the phrase ‘or any person authorised by him’ in section 4(2)(a) and (b) of the Act was interpreted as providing for the delegation of the powers conferred on the appropriate authority or whomsoever he shall authorise to exercise such powers. That since the powers are exercisable personally or through a delegate, the method of delegation of the powers is said not to be exhaustive. It was also held that it might therefore be exercised by a mere directive to the official to exercise the powers, but there must be delegation.

I believe that all that is required is that there must be satisfactory evidence establishing that there was in fact a delegation of the power by the appropriate authority prior to the exercise of the powers before any act done in furtherance of the powers so delegated could be said to be validly done. In the instant case, I have no doubt in holding that the letter written and signed by Mr. S. A. Kida, was done in exercise of the powers delegated by the Head of State, who was the appropriate authority in the instant case. The evidence on record adequately supports this conclusion. I therefore hold that the lower court was right in holding that its jurisdiction to entertain the action under section 3(3) of the Act was effectively ousted.

In conclusion therefore, I hold that there is no merit in the appeal and I accordingly dismiss it with N5,000.00 costs in favour of the respondent.

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Other Citations: (2000)LCN/0725(CA)