Mr. Omiete Michael Kalango V. The Governor Of Bayelsa State Of Nigeria (2009)
LAWGLOBAL HUB Lead Judgment Report
D. MUSDAPHER, JSC.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division in appeal No. CA/PH/l59/2000, delivered on 28/5/2002, in which the court dismissed the appeal of the appellant herein against the Ruling on a Preliminary Objection against the appellants suit on the grounds of jurisdiction. The trial court upheld the Preliminary Objection. The matter started this way: In the Federal High Court in the Port Harcourt Division and in Suit No. FHC/PH/936/96, the appellant herein, as the plaintiff challenged his compulsory retirement from the services of Bayelsa State Government whereby in his writ he claimed as follows: –
“1. A declaration of this Honourable Court that the purported “Compulsory Retirement” of the plaintiff from the civil service of Bayelsa State in “public interest” without any prior query, indictment or known offence is null and void and of no effect whatsoever in that it contravenes the provisions of the 1979 Constitution of the Federal Republic of Nigeria.
An Order of this Honourable Court compelling the defendants to reinstate the plaintiff back to his office as Accountant-General of Bayelsa State unconditionally.
An Order of this Honourable Court restraining the defendants, their servants, agents, privies or anyone from implementing the said retirement order or interfering with the performance of the plaintiffs duties as the Accountant-General of Bayelsa State in any manner whatsoever.”
An Order of the transfer of the matter to the Bayelsa State High Court was issued by the Federal High Court, Port Harcourt on the 18/11/1999. The suit then became Suit No.YHC/85/1999. On the 1/2/2000, the defendants filed a Notice of Preliminary Objection in these terms: –
‘Take Notice that this Honourable Court will be moved on Thursday 10th day of February, 2000, at the hour of 9 0 clock in the forenoon or so soon thereafter as counsel on behalf of the defendants/applicants can be heard praying for an Order;
(i) that this Honourable Court lacks jurisdiction to hear and determine this matter, and any
(ii) other order or orders that this Honourable Court may deem fit to make in the circumstance.”
An affidavit was filed in support of the objection. The affidavit contains documentary exhibits including an instrument signed by the Military Administrator of Bayelsa State compulsorily retiring the plaintiff from service. The plaintiff filed a counter-affidavit containing other documents. The trial court heard arguments on the Preliminary Objection and on the 20th day of April, 2000, delivered its Ruling upholding the Preliminary Objection and held that the court lacks the jurisdiction to entertain the plaintiffs claims because its’ “jurisdiction has been ousted by express provision of statute.”
The plaintiff appealed to the Court of Appeal, Port Harcourt Division against the Ruling and in its judgment delivered the 28th day of May, 2002, the plaintiffs appeal was dismissed and the decision of the trial court was affirmed. The plaintiff now referred to as the appellant has now further appealed to this court. The defendants shall hereinafter be referred to as the respondents.
It was with the leave of the Court of Appeal, that the appellant filed his notice of appeal containing three grounds of appeal. In his Brief for the appellant, the learned counsel has identified and submitted two issues arising for the determination of the appeal. The issues are:-
“1. Whether in considering the legality of the appellants compulsory retirement, the only letter of retirement served on him should not be construed or the said letter together with other documents not served on him should be considered together?
Whether the only letter of compulsory retirement served on the appellant conforms with the provisions of Section l (i)(a) of Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation, 1990, so as to oust the jurisdiction of the court in keeping with Section 3 of the said Act?”
Before discussing the issues submitted for the determination of the appeal it is convenient at this stage to set out the relevant background facts. The appellant joined the Civil Service of the Rivers State Government in September, 1974. When Bayelsa State was created in 1996, the appellants services were transferred to the new Bayelsa State. The appellant remained in the Civil Service of the Bayelsa State Government until 9/10/1998, when the Military Administrator of Bayelsa State executed an instrument under the provisions of Public Officers (Special Provisions) Act, compulsorily retiring the appellant from the services of Bayelsa State Government. The appellant was informed by a letter and that after compulsorily retiring the appellant, his former position as the Accountant General, Bayelsa State was filled by appointing another person to the position. Hence the appellant took the action and claimed the reliefs recited above.
The learned counsel for the appellant took the first issue. He submits that both issues identified revolve round the legality of the compulsory retirement of the appellant from the Civil Service of Bayelsa State. It is submitted that Section 3(3) of the Public Officers (Special Provisions) Act, Cap. 381 of the 1990 LFN, did not oust the jurisdiction of the court to deal with the claims of the appellant. It is submitted that the letter of compulsory retirement dated 9/l 0/1998, served on the appellant was the only one served on him and that the letter did not “refer to anybody as giving the directive nor did it refer to any document that could be credited to the appropriate authority” the Military Administrator. It is further submitted that the instrument issued by the Military Administrator was not communicated to the appellant. On the face of the document communicated to the appellant there was nothing to indicate that the compulsory retirement emanated from the appropriate authority. See: Wilson v. A.G. Bendel State & Ors. (1985) 1 NWLR (Pt.4) 572. The lower courts were in error to have read the two documents together because (1) the letter written by the Civil Service Commission cannot on the face of it be based on the Instrument emanating from the Military Administrator, (2) the letter from the Civil Service Commission did not express any “directional authority” in that it did not state who directed the Civil Service Commission to issue the letter. It is further stated that up to now, the appellant has not been served with the instrument issued by the “appropriate authority” the Military Administrator.
On the second issue, it is submitted that the letter served on the appellant and issued by the Civil Service Commission could not be said to conform with Section l (l)(a) of the Public Officers (Special Provisions) Act, so as to oust the jurisdiction of the court, in accordance with Section 3(3) of the said Act. It is submitted that the only letter communicated to the appellant was the one signed by one N. D. Igiran “for Permanent Secretary Civil Service Commission and it did not emanate from the “appropriate authority.” Learned counsel referred to the Wilsons case supra and Ebohon v. A.G. of Edo State (1997) 5 NWLR (Pt.505) 298. It is further submitted that statutes that oust the jurisdiction of the court should be interpreted strictly see Nwosus case supra, see also Onwucheya v. Military Administrator of Imo State (1997) 1 NWLR (Pt.482) 429, Graite Co. Ltd.v. Ministry of Housing and Local Government (1958) 1 All ELR 625.
The learned counsel for the respondents on the other hand has identified and submitted one issue for the determination of the appeal and it reads: –
“Whether the letter of compulsory retirement (Exhibit B) served on the appellant should be construed together with a prior public instrument terminating the appointment of the appellant in considering the application of Sections 1-4 of the Public Officers (Special Provisions) Act, Cap. 381, otherwise known as Decree No. 17 of 1984 now repealed.”
It is submitted that by a prior instrument under the hand of the appropriate authority issued on 9/10/1998, the appellant was compulsorily retired from the service of Bayelsa State Government under the provisions of the Act referred to above. It was later on the same day, the Civil Service Commission wrote Exhibit B informing the appellant of his compulsory retirement in accordance with the provisions of “Decree No. 17 of 1984.” It is submitted that under the relevant and existing law, the action of the appropriate authority could not be questioned in any court since the jurisdiction of the court to delve into such matters had been ousted. It is further submitted that the appellant as per paragraph 6 of the Statement of Claim heard on the radio that the appropriate authority had compulsorily retired him from the public service. Learned counsel referred to and relied on the case of Omo v. Judicial Service Committee, Delta State (2000) 7 S.C. (Pt.II) 1; (2000) FWLR (Pt.20) 676.
The learned counsel further submitted that by virtue of Sections 7-10 and 148(c) of the Evidence Act, the respondents followed due process in terminating the employment of the appellant. It is submitted that since the instrument of compulsory retirement was issued by appropriate authority, no action can lay and there is nothing in the Act which make it necessary to serve only the instrument on the appellant. It was enough that he heard its contents on the radio.
Now, there is no doubt that “the appropriate authority” issued an instrument which was in these terms: –
“Government of Rivers State of Nigeria, Public Officers (Special Provisions) Act. Cap. 381, LFN, 1990.
Compulsory Retirement of Public Officer.
In the exercise of the powers conferred upon me by Section 1(1)(a) of the Public Officers (Special Provision) Act,Cap.381, Laws of the Federation of Nigeria, 1990 and other powers enabling me in that behalf, I Lt. Col. Edoh Obi, Military Administrator of Bayelsa State, compulsorily retire with immediate effect from the Civil Service of Bayelsa State the person whose name is set out in subjoined schedule.
The compulsory retired officer is entitled to his retirement benefits.
Dated at Yenagoa the 9th day of October, 1998.
Signed.
Lt. Col. Paul Edor Obi.
Military Administrator,
Bayelsa State.
Schedule
Mr. Omiete M. Kalango
(Accountant-General)”
It was as a result of above instrument, that the Civil Service Commission issued the letter, Exhibit B which reads thus: –
“Government of Bayelsa State of Nigeria Civil Service Commission.
P.M.B. 15
Yenagoa.
Telegrams: BA YELSACOM
Telephone:
Your reference:-
Our reference: CCSC/PP/294/Vol. 1/11. 9/10/1998
Mr. O. M. Kalango,
(Accountant),
u.f.s. The Permanent Secretary,
Ministry of Finance and
Economic Planning, Yenagoa.
Compulsory Retirement
Government has considered your continued stay in the Civil Service of Bayelsa State is against Public Interest.
In view of the above, I am directed to inform you that you are hereby compulsorily retired as Accountant-General in accordance with effect from 9th October, 1988. Accordingly, you are hereby required to hand overall Government properties in your possession to the Permanent Secretary, Ministry of Finance and Economic Planning.
Signed
D. Igiran,
For: Permanent Secretary
Civil Service Commission.”
The appellant argued that the above was the only document communicated to him terminating his appointment by compulsorily retiring him from the public service. It is also submitted that the two documents i.e the letter communicated to him and the instrument issued by Military administrator should not be read together to render the termination of the appointment under the provisions of the Public Officers (Special Provisions) Act.
Now, there is no doubt and it is settled law that the provisions of Section 3 of the Public Officers [Special Provisions] Act, ousted the jurisdiction of the courts in matters or things done or purported to be done under the Act by the appropriate authority or any other authority acting on the direction of the appropriate authority. In other words, the provisions while subsisting, created an ouster provision. The attitude of courts to ouster of jurisdiction clauses has been well settled, see Pearlman v. Governor of Harrow School (1978) 3 WLR 736.
It is also settled law that, Statutes which overreach the citizen’s right or access to court are subject to very strict interpretation, Aniagolu, JSC., (as he then was) said in the case of Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt.9) 734 at 753:
“Again the courts have adopted the principle that statutes that overreach on the right of the subjects to whether as regards persons or property are subject to strict construction in the same way as Penal Acts. Therefore, it is recognized that such statutes should be interpreted, if possible, so as to respect such rights and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted. See David v. De Silva (1934) AC 106.”
See also Rabiu v. The State (1980) 8-11 S.C. 130 at 149; (1980) 8-11 S.C. (Reprint) 85, Anisimiwic v. Foreign Compensation (1969) 2 AC 147 at 170, Nwosu v. Imo State Environmental Sanitation Authority & Ors. supra, Attorney-General of Bendel Stale v. Aideyan (1989) 9 S.C. 127; (1989) 4 NWLR (Pt. 118) 646 at 674.
Now, where it applies, the tenor of the provisions of the Public Officers (Special Provisions) Act, is a very drastic legislation. It enabled the Appropriate Authority to dismiss, terminate or retire, a public officer and went further to oust the Jurisdiction of the court from adjudicating on a suit filed by the public officer. Section 3 of the Act provided:-
“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 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 void.”
It is as mentioned above a rather harsh provision but the courts, even if they did not like it, were duty bound to give effect to it if there is no escape route. It appears to me that the clear intention of the words “Or purported to have been done” is that even when the reason for the Appropriate Authoritys action under the Act did not fall squarely within paragraphs (a)-(a) of subsection 1, if there is satisfactory evidence, that the termination of the appointment or removal from the surrounding circumstances that the action was intended to be done under the Act. In the instant case, it was clear that the Appropriate Authority, the Military Administration of Bayelsa State had issued a legal Instrument compulsorily retiring the appellant from the public service of Bayelsa State. The Instrument was given on the 9/10/1998. It was on the same day, the Civil Service Commission communicated Exhibit B to the Appellant informing him, that he was “compulsorily retired in accordance with Decree No. 17 of 1984.” In my view the letter, Exhibit B could not be divorced from the Instrument signed by the Appropriate Authority. It is not the normal function of the Military Governor, or Military Administrator to convey to public servants the dismissal or other disciplinary action against them, but this is the normal functions of the Civil Service Commission and heads of different parastatals. It is therefore of no moment, that the Instrument was not served on the appellant, Exhibit B which was served on him clearly show that the appellant was compulsorily retired under the provisions of the Act.
There is no doubt that the Appropriate Authority may act or delegate to another person the duty to act on its behalf once it is shown that the action was done within the purview of the Act, that is enough. The appellant as per paragraph 6 of the affidavit he swore to during these proceedings on the 13/10/1998, clearly admitted that he heard on the radio that the first respondent herein announced over the radio that the appellant was retired from service. In my view, that is enough especially when coupled with the instrument and the letter, Exhibit B.
This appeal is clearly without any merit and is dismissed by me. I affirm the decisions of the courts below and the respondents are entitled to costs assessed at N50,000.00.
SC. 239/2002
