Saidu Garba V. Federal Civil Service Commission & Anor (1988)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
This appeal arose as a result of the incident that followed the unfortunate fire inferno which took place in “NECOM HOUSE” building in Lagos. The fire fiercely gulped the tall sky-scraper on 24th January 1983. Two people died, but over 600 other lives were saved.
The Appellant, who was a fireman, was there with his men, for so he said, to put off the fire. They eventually succeeded after a grueling grind. In any event, the Appellant claimed he put out the fire, while the Respondents denied that he performed the feat. That however was not the gravamen of the trouble to come.
On 31st January, 1983, a week after the fire incident, the Appellant, with nineteen others, was arrested and charged with the murder of the two men that died. Two weeks after he was charged with the murder, the Appellant, precisely on 16th February 1983, brought an application before the High Court, under the Fundamental Rights (Enforcement Procedure) Rules, to have the indictment quashed and the indictment was quashed by the Court, (Bada J.).
The Appellant’s ordeal was just starting. For, on 21st February, 1983, he was interdicted by a letter and this interdiction was renewed in yet another letter. Again, he went to Court, but this time, he sought
“A declaration setting aside as illegal, invalid, unconstitutional null and void and of no effect whatsoever the two letters dated 21st February, 1983 and 6th of April, 1983 with reference Numbers MIA/5194/S.1/2 and MIA/5194/S.1/T/27 respectively from the Permanent Secretary Federal Ministry of Internal Affairs to the Plaintiff interdicting the Plaintiff.”
In a nineteen-paragraphed Statement of Claim, he averred, inter-alia-
“that at no time after the charge of murder was quashed by the Lagos High Court on the 16th of February 1983 was he again charged or re-arrested for murder.
that he has since not been charged before any court of law for any offence.”
The Plaintiff then said he would contend, at the trial of this action that his interdiction was illegal, invalid, null and void for the following reasons:-
“(a) It is contrary to RULE 04115 of the Federal Government Civil Service Rules.
(b) Since no criminal charge has been preferred against the Plaintiff in a court of law there is no basis for the interdiction of the Plaintiff.
(c) The process of interdiction of the plaintiff is contrary to RULE 04116 of the Federal Government Civil Service Rules in that the process of Interdiction has been violated by the Permanent Secretary Federal Ministry of Internal Affairs.
(d) That the interdiction violated the principle of Natural Justice in that the Plaintiff was not heard before the interdiction was made.”
The Statement of Claim was filed on 23rd May 1983 and the Respondents joined issue in a Statement of Defence filed on 27th June 1983. Eventually, it was the Statement of Defence filed on 12th October 1983, that was acted upon, and therein the Respondents claimed-
“With further reference to paragraph 5 of the Statement of Claim, the Defendants admit that there was fire at NECOM HOUSE BUILDING IN LAGOS, and that the Federal Fire Service fought the fire but deny that the fire was put out by the Department under the control of the Plaintiff.
With further reference to paragraph 16 of the Statement of Claim, the Defendants aver that the plaintiff was re-arrested along with others for the offence of murder. The Defendants hereby specifically plead the relevant document and will rely on it at the trial.
With further reference to paragraphs 16 and 17 of the Statement of Claim, the Defendants admit that the plaintiff has not been charged to Court for any offence but that the matter has been referred to the Director of Public Prosecution Lagos State Ministry of Justice, for legal advice. The Defendants hereby specifically plead the letter from the Police dated 7th June 1983 and will rely on it at the trial.
With further reference to paragraph 18, Defendants deny that the interdiction of the Plaintiff is contrary to the provisions of the Federal Government Civil Service Rules. Whereupon the Defendants aver that the action of the Plaintiff be dismissed in all respect with costs.”
The matter was listed before Jinadu J. with an order that it be set down for hearing on 28th and 29th November 1984.
That Order reads –
“1. This Cause shall be heard in the High Court of Lagos State sitting at the Tafawa Balewa Square, Lagos or any other place to which it may be transferred.
- It shall be heard in open Court upon the oral and documentary evidence of witnesses.
- It shall be heard on 28th and 29th November, 1984 respectively.”
Eventually, the action, after several applications for accelerated hearing, contempt proceedings and some other preliminaries, was heard, and judgment was delivered on 27th July,1984.
Before the determination of the action by Jinadu J., the Defendants had brought an application before the Judge to the effect that in view of section 3(3) of the Decree No. 17 of 1984 which was promulgated on the 27th June 1984, with the commencement date set at 31st December 1983, the Court could no longer continue with the case. Jinadu J. rejected the application and gave judgment as I had indicated above. That was not all. Even, during the pendency of the case before the learned trial Judge, the Appellant got a letter from the Federal Public Service Commission dismissing him from the public service as from 11th April 1984! And so, the position was – The Appellant was arrested and charged with murder, Bada J. quashed the indictment. He was interdicted. He took an action to declare the letters of interdiction null. Before the Court gave an answer to his prayer, he was dismissed! Surely it was not a pleasant experience for the Respondent.
Though the dismissal was not an issue in the Court of Appeal, when the appeal came before this Court, learned counsel for the Appellant, A. B. Adegbesan applied to and obtained an order from the Court to add a new declaration to declare the dismissal illegal and void. Mr. Adio, for the Respondent, showing a most mature responsibility did not oppose the application. But let us return to the Court of Appeal.
After arguments before the Court of Appeal, Adenekan Ademola, J.C.A. delivering the judgment of the Court of Appeal held-
“Having thus set down the submissions of learned counsel, I now go into the consideration of those submissions. I agree that the key section to this appeal can be found in Section 3 subsection 3.
As it is important to the submissions of learned counsel, it is hereby set out in full:
“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 proceedings shall abate, be discharged and made void.”
The other provisions of the decree affect the pension rights of public servants; fundamental human rights provision of the Constitution as regards the terms and conditions of employment of public servants; the rights of public servants as guaranteed by the Constitution; the retrospectivity of the enactment to events as from 31st day of December 1983 though the decree was published on 27th day of June 1984.
In my view the whole tenor of this decree is to establish a regime of a public servant not being worthy of his hire! With such characterisation of the Decree as I have done, it is difficult to agree with the learned counsel for the Respondent that certain well-known presumptions have not been jettisoned in the promulgation of the Decree.
In my view, the presumptions that have suffered are: retrospective effect of legislation relating to pending actions; alteration of existing laws; the fundamental human rights of the provision of the Constitution of 1979 and the Constitution itself as far as conditions and terms of employment of public officers are concerned.
The question then may be asked what interpretation does one give to Section 3 subsection 3 of the Decree To my mind, the provision contemplates two situations. First, it has forbidden proceedings in court for anything done or purported to be done under this decree on one part and on the second part, it took care of pending proceedings in court instituted before even this decree saw the light of the day or after it has seen it questioning matters of discipline or removal of public officers. This second part of the Decree deals with the statement of such actions. While the first part confers no right of action.
Abatement of an action is, in my view, a different thing from ouster of jurisdiction. It concedes that before the abatement provision of a legislation comes into operation, the court has jurisdiction to entertain proceedings hitherto pending but as soon as the abatement provision comes into operation the pending proceedings to that extent is vacated and removed from the record of the court. Again, to my mind, the distinction between it and ouster of jurisdiction lies even in the attitude of the courts towards such abatement provision of legislation. While it is true, as it has been submitted by learned counsel for the Respondent, that courts of law being jealous of their jurisdiction must watch enactments ousting their jurisdiction closely and meticulously and would only bow to the ouster of jurisdiction if the words doing so are clear and unambiguous.
The same cannot be said of proceedings pending before it. The courts do not have to look for express and clear words about abatement of action. It is sufficient that the word is simply used and like a magic word the action disappears from the court List.
Abatement of action has been defined according to Black’s Law Dictionary 5th Edition as follows:
“Abatement of action. Abatement is an entire overthrow or destruction of the suit so that it is quashed and ended. Carver v. State. 217 Tenn. 482, 398 S.W. 2d 719. By local Court rule in certain U.S. district courts a civil action may be abated (dismissed) if service of process is not made within a specified period after filing of the complaint.”
So also Jowitt’s Dictionary of English Law by John Burke Volume 1, 2nd Edition on page 3:
“Abatement, termination, destruction, reduction, intrusion (Britt. 122b, 155, 161; Co. Litt. 134b, 277a; 3BI, Comm. 167; Cowek).”
Since abatement means termination, destruction, intrusion of a pending action, it is likened in my view to abatement of a nuisance, which means to put an end to such nuisance, which is a Common Law right of anybody. Abatement of pending proceeding in court is the sovereign right of any legislative body in a modem state. It may well be that the promulgator of the Decree sees that any court action relating to the removal, discipline and all matters relating to the employment of public servants are nuisances which ought to be put an end to. But when such an enactment just comes to operation, it automatically, without much ado, destroys any such pending proceedings. It matters not in my opinion whether the right had been vested or not. Therefore, it is against the presumption that pending rights and actions are not taken away by legislation that come into effect after such action had been filed. To that extent, the submission and the authorities cited by learned counsel for the respondent are of no avail in the instant case.
It is true that the action of the Respondent had been pending in court since 1983 and that the commencement of the Decree is to begin on the 31st of December, 1983. It is in the nature of abatement of action legislation that such legislation takes care of pending matters in the court before the enactment of the abatement legislation.”…………………………………………………
Learned counsel for the Respondent has in my opinion overlooked the abatement part of Section 3 subsection 3 and has devoted a considerable part of his submission upon the issue of the ouster of jurisdiction. Thus his argument and submission are misconceived. The issue before Jinadu, J. by the application of the Appellants in the court below, is the issue of abatement of action not ouster of jurisdiction. It is still in my opinion the issue in this Court.
It has been argued on behalf of the respondent that what is being contested in the proceedings is not the dismissal of the respondent by the letter – Exhibit CA1 but the issue of his interdiction and that therefore the question of interdiction is not covered by Decree No. 17 of 1984. I do not agree with this submission.
The issue of interdiction is subsumed into the issue of his dismissal. This Decree in my view having regard to Subsection (1)(1)(b), 1(1)(d) is wide enough to cover matters of discipline which interdiction is as in this case. In any event, on the principle of de minimis or on the principle of the lesser being included in the greater, I do not think there is any substance in the distinction learned counsel is making. If even one were to hold that the interdiction is null and void and unconstitutional which is what the learned trial Judge did, can one ignore the dismissal of the Respondent which had taken place during the pendency of the suit and thereby grant a declaratory relief on the interdiction The answer to that is in my opinion NO. The declaratory relief which is being asked for is a discretionary remedy and the court could not grant such a remedy that cannot be enforced.
The net result is that this appeal succeeds. I do not need to go to the subsidiary question raised in the second issue for determination. The proceedings in the lower court and in this Court have abated. There shall be no order as to costs in this Court and in the court below.”
This then was the judgment of the Court of Appeal, against which the Appellant has appealed to this Court, for the Court of Appeal allowed the appeal of these Respondents against the Order made in his favour by the High Court.
Both Mr. Adegbesan for the Appellant and Mr. M. O. Adio Legal Adviser who represented the Respondents placed before us excellent briefs. Indeed, they both adopted and relied upon their briefs and this was in fact sufficient.
On the abatement of the action the following facts were placed before us. The Decree No. 17 of 1984 was passed on 27th June 1984. Section 5 thereof made it retrospective to 31st December 1983. It provides-
“5. This Decree may be cited as the Public Officers (Special Provisions) Decree 1984 and shall be deemed to have come into force on 31st December, 1983.”
Now the action, subject matter of this appeal had been filed since 25th May 1983. The letter interdicting the Appellant signed on 21st February 1983 reads-
“LETTER OF INTERDICTION
I am directed to bring to your notice that a report has been received to the effect that you were arrested by the Police in connection with the offence of Murder. The offence was committed on 24/1/83 during the NECOM HOUSE fire incident where two persons lost their lives.
In view of above, it has been decided that you should be interdicted, and you are hereby interdicted in the public interest with immediate effect in accordance with CSR.04115.
You are to receive half pay of your salary while on interdiction, until the case is finally disposed of.
You are strongly advised in the public interest to keep away from the premises of the Federal Fire Service until the case is finally disposed of.”
It is, however, the interpretation to be placed upon Section 3(3) of the Decree – The Public Officers (Special Provisions) Decree No. 17 of 1984 which provides –
“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 the Decree, the proceedings shall abate, be discharged and made void.”
that is the core of contention before us.
The Appellant’s counsel has set out in his Brief a catalogue of the events leading to this Appeal in such chronological order that I would safely rely on that catalogue in this judgment, especially as it was never challenged by the Respondents’ counsel, except for the inconsequential dispute as to who put out the fire. Also, a careful reading of the record confirms the correctness of the catalogue. It reads-
24th January, 1983 – There was a fire incident at “NECOM HOUSE” building which was put out by the Appellant and men under his department.
31st January, 1983 – The Appellant was charged with 19 other persons for the murder of the two persons who unfortunately died in the inferno.
16th February, 1983 – Upon an application brought by the Appellant before the High Court, Lagos, under the Fundamental Rights, (Enforcement Procedure) Rules his indictment was quashed by the Hon. Justice Charles Bada.
21st February, 1983 – The Appellant was interdicted by a letter with reference No. MIA/5194/S.1/2 – Exhibit B pages 145 – 146 of the Record.
6th April, 1983 – The interdiction was renewed in a letter reference number MIA/5194/S1/T/27. – Exhibit D pages 148 – 149 of the Record.
25th May, 1983 – The Respondent filed his writ of summons and statement of claim. pages 2 – 7 of the Record.
11th April 1984 – The Appellant was dismissed vide letter with reference number MIA/S1516/99, dated 11th April, 1984. Exhibit C A 1.
27th June, 1984 – Decree No. 17 of 1984 passed and the commencement date thereof was put as 31st December, 1983.
19th July, 1984 – The Respondents filed a motion on Notice, objecting to the jurisdiction of the trial court to continue with the suit in view of the provisions of the said Decree No 17 of 1984. Pages 111 – 113 of the Record.
26th July, 1984 – The trial Court delivered a Ruling on the said application to strike out the suit for want of jurisdiction and held that he had jurisdiction. Page 119 of the Record.
27th July, 1984 – The Trial Court delivered judgment in the substantive Suit granting the Appellant’s declarations and ordered his reinstatement. Pages 120 – 124 of the Record.
In other words, the action for determination had been commenced long before the coming into force of Decree No. 17 of 1984 or even the conception of the military putsch that led to the taking over of Government from those who interdicted the Appellant and against whom the Appellant proceeded in the Court of Law. To put it in another form, the act of interdiction of the Appellant and the legal proceedings that followed could not have been intended by the Federal Military Government that promulgated Decree No. 17 of 1984. Be it noted however that it was the Federal Military Government that dismissed the Appellant.
The issues for determination in this appeal were also well set out in the aforesaid Brief of the Appellant and it is the Appellant’s case that must necessarily be considered as a challenge to the decision of the lower Court and the Respondents Brief is meant to answer those points as have been raised by the Appellant, I will adopt the Appellant’s Brief in regard thereto.
The Issues as set down by the Appellant therefore, are-
“1. Whether Section 3(3) of Decree No. 17 of 1984 can operate to affect proceedings commenced and pending in court before the commencement date of the Decree.
- Whether the Decree No. 17 of 1984 covers interdiction of a public officer.
- Can an employer, during the pendency of an action by its employee for unlawful interdiction lawfully dismiss the employee
- Whether the letter of dismissal of the Appellant Exhibit CA1 was valid in law.
- Whether the Court of Appeal was right in failing to consider the issue of the validity of the order of reinstatement of the appellant made by the trial Judge.”
Learned counsel for the Appellant contended on the first issue, that as regards the effect of section 3(3) of Decree No. 17 of 1984 on proceedings commenced prior to the commencement date of the Decree, a statute which purports to take away the jurisdiction of the Court must be strictly construed and the provision of ouster contained in the Decree will only affect acts done on 31st December 1983 and thereafter but certainly not in respect of acts done before that date. Learned counsel relied on the decision of this Court in Broniks Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296. Counsel then urged that we should consider the history leading to the enactment of the Decree.
It is gratifying to note that the Respondents’ Brief also dwelt so much on the history behind the enactment of the Decree. With regard to history, the Respondents claimed that the whole tenor of the Decree is “to establish a regime of a public servant not being worthy of his hire!”
It is clear that both learned counsel lay premium on the interpretation to be placed on section 3 of this Decree No. 17. The pronouncement of the Respondents, coming with the weight of the Attorney-General’s chambers, and to the effect of an establishment of a regime of a public servant not being worthy of his hire must send terror through the spine of public servants. It is therefore worth close examination, for if the learned Attorney-General’s chambers is right, a fundamental revolution, deleterious to the public service, has gone quietly and it has only surfaced with this case.
The essence of section 2(1) of Decree No.1 of 1984 – the Constitution (Suspension & Modification) Decree 1980 which gives the Federal Military Government power –
“to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever”
must be examined and the question must necessarily be asked whether “laws ……….. with respect to any matter whatsoever” is not limited to laws for the peace, for the order and for the good government of this country and whether or not the determining body of what is “peace”, “order”, and good government is the Federal Military Government itself subjectively or it is the Court, objectively, under section 6 of the Constitution of 1979 which provision is still extant notwithstanding so many amendments made to the Constitution by the Military. In other words, would any law made by the Federal Military Government be automatically interpreted as having been made for the peace or order or good government just because it has been made by the Government or will the Court still not have a say in determining what is good government What is peace What is order These, no doubt, are weighty issues and they raise the issue of the ultimate “power” or, if I may use the word “grundnorm” of this nation. The simple attitude is let the government make laws, but let the Court only interpret the laws and not make laws. The matter is not easy and may not be strictly necessary for partisan pronouncement in the present appeal. Therefore let us go back to the History of Decree No. 17 of 1984.
On 31st December 1983, there was a military coup d’etat which removed the Civilian government and installed a military government with a ruling junta known as the Supreme Military Council. Section 1 of Decree No. 17 sets out the reason for the promulgation of the Decree in so far as it concerns public officers, who in such circumstances must be and in fact affected by the military putsch. It provides
1.-(1) 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.
(2) For the avoidance of doubt, it is hereby declared that any act or thing done at any time between 31st December 1983 and the making of this Decree by the appropriate authority in respect of –
(a) the dismissal, removal from office or compulsory retirement of any public officer; or
(b) the conduct of any inquiry into any aspect of the exercise by a public officer of his duties; shall be deemed to have been done pursuant to this Decree.
Surely, if one pauses here for the moment, this provision is still in consonance with Decree No.1 of 1984, that is the Constitution (Suspension and Modification) Decree, which empowers the Federal Military Government to make laws for the peace, order and good government of this country or any part thereof and which in fact is not in conflict with section 4(2) of the Constitution of the Federal Republic of Nigeria 1979 which gave similar power to the National Assembly except that those powers in the National Assembly are now vested in the Federal Military Government.
Surely, section 1 of Decree No. 17 is necessary to cover the Federal Military Government which chose, after the enforced change, voluntarily, to continue a rule of law, rather than an unnecessary imposition of a rule of undisguised force. I use the words “unnecessary and undisguised” advisedly. As would be expected though the Decree was dated December 1983, the date they seized power vi armis.
We now go to section 3 of the Decree which I have said is the one for real interpretation in this appeal. The Section provides-
“3.-(1) For the purposes of this Decree, the operation of the provisions of sections 159 and 190 of the Constitution of the Federal Republic of Nigeria 1979, which protect the pension rights of persons in the public service of the Federation or of a State respectively, are hereby excluded.
(2) The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria 1979) relating to the matters to which this Decree applies or relating to the appointment, benefits, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.
(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 proceedings shall abate, be discharged and made void.
(4) Chapter IV of the Constitution of the Federal Republic of Nigeria 1979 is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been, is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be inquired into in any court of law.”
Subsection (2) thereof subjects all enactments, instruments and even the Constitution of 1979, or whatever is left of it, yet unrepealed, to the Decree, once the provisions relate to the matters to which the Decree applies or whenever it relates to-
the appointment;
benefits;
dismissal; and
disciplinary control of a public officer
It is “dismissal” and “disciplinary control” of a public officer that we are concerned with in this appeal.
Subsection (3) ousts the jurisdiction of the Court on account of or in respect of any act, any matter or anything done by any person (which includes the Respondents). But such act must have been done under the Decree. And what are these acts that could be done under the Decree They are, again-
the appointment
benefit;
dismissal; and
discipline
of a public officer (which includes the Appellant). Of course, Chapter IV of the Constitution, that is Fundamental Rights provision, were suspended for the purposes of the Decree.
Before dealing with whether or not the facts in the instant are covered by the Decree when subsection (3) of section 3 talks of voidity of any proceedings instituted before the making of the Decree, that is proceedings before 31st December, 1983, let me say that it is from the above exposition that one finds the history of the Decree not supporting the submission of learned counsel for the Respondents as to the tenor which he postulated of the Decree.
I shudder to think that the Decree was ever contemplated to be penal or that a regime that comes in corrective stance and legislates to correct the ills and stamp out the corrupt practices and inadequacies of the past regime, would mean Decree No. 17 to create a regime that would reduce a public officer to a status of not being worthy of his hire! With utmost respect to the learned counsel for the Respondent, I cannot accept that proposition. I think the tenor is to safeguard the Military Government from avalanche of litigation that might necessarily follow acts of dismissal, removal or compulsory retirement of, the public officers affected, that is those-
“by reason of age or ill health or due to any other cause who have been inefficient in the performance of their duties, or those engaged in corrupt practices or corruptly enriched themselves or other persons.”
Surely a Government that is ruthless against such public officers as indicated above could only be regarded as having, as its tenor of legislation, the upliftment of good public officers as being worthy of their hire and not very good public officers as being irrelevant to the word of change! Even in an ordinary interpretation of the words of the statute, I would refer to Idigbe J.S.C. in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 who said, and I respectfully adopt this, that words are not used in a statute without meaning. He added –
“But there is the other rule of construction of statutes that words in an enactment are primarily used in the ordinary meaning or common or popular sense and generally are used as they would have been ordinarily understood.”
– see p.345
As the learned counsel for the Appellant has said, section 1(2) of the Decree seems to put it beyond par that the Decree would only apply to any act or thing done, or could only be in regard to anything done after 31st December 1983. The subsection brings in the period from 31st December 1983 to the date of the enactment of the Decree as inclusive of the period the Decree would have effect.
I do not think any act of interdiction that took place, or any court proceedings that followed the act, before 31st December 1983, could ever be covered by the Decree.
But then, the issue of abatement of proceedings was argued with so much vigour by both learned counsel. Learned counsel, for the Respondents, put up a most interesting and a most powerful argument. He said that Section 3(3) of the Decree takes care of pending proceedings in Court even where the proceedings were instituted before the promulgation of the Decree that is before 31st December 1983. The following is the portion he has thus interpreted –
“and if any such proceedings have been or are instituted before …… the making of this Decree the proceedings shall abate”
If he is right, then these proceedings taken out before 31st December 1983 would be affected by the Decree. Now in Virginia v. Tennessee, 148 U. S. 503 reference was made to a rule of construction of statute which is known as noscitur a sociis. The Court said-
“The obscurity or doubt of any particular word may be removed by reference to associated words. And the meaning of a term may be enlarged or restricted by referring to the object of the whole clause in which it is used.”
(emphasis mine)
Also Brett J. in Stone v. Yeovil Corporation (1896) 1 CPD 691 at p. 701 said-
“if it be possible, effect must be given to every word of an Act of Parliament”
Relying on both dicta, supra, what I intend to do herein, is to analyse that portion of subsection (3) of section 3 of the Decree which I have already set down supra and in respect of which I have set out the submission of Mr. A Adio. I would as a result lay emphasis on the words “such proceedings” therein and read those words, A SOCIIS the words –
“any act matter or thing done or purported to be done by any person under this Decree.”
For the words “such proceedings” in the subsection to have meaning, and escape from obscurity, it must be clear that the proceedings which are sought to be abated under Section 3(3) of the Decree must be proceedings which are in respect of any act, matter or thing done [or purported to be done] under the Decree itself. Indeed, anything under the Decree could only be done during the life of the Decree and it only saw life, for the first time, on 31st December, 1983.
Thus, we are back to square one. And it would be seen that from whichever angle one looks at it the date of birth of the Decree, which is 31st December 1983, will have to be borne in mind whenever one considers anything done” or “proceedings taken out in respect of anything done” under the Decree. It is this consideration that would make the proceedings to be “such proceedings.”
Whether or not Decree No. 17 of 1984 covers interdiction would therefore become academic, once I have held, as I hold, that the action or proceedings herein fall outside the Decree. Had I held that the proceedings fall within the Decree, then it would still have been my opinion that subsection (1) of section I of the Decree limits the power of the “appropriate authority” only to “dismissing” or “summarily removing” the public officer from his office “retiring or “requiring the public officer to retire compulsorily” from the service and would not extend to “interdicting” the public officer. There is no question of taking a media via view of interdiction. Interdiction cannot be synonymous with summary dismissal or compulsory retirement. The subsection connotes action which takes away the public officer from office with immediate effect. Once the element of interdiction enters, there is no urgency. There is no “immediate effect.” indeed, there would be no need for this type of Decree. And so, in any event, the issue of interdiction, as in this case, could never be slotted into the Decree.
What remains now is an examination of the act of the Respondents in dismissing the Appellant from office during the pendency of the action. Such action, I think is contemptuous of the Judiciary, which has been seised with determination of civil rights under the Constitution and which has been left unscathed by all military coups. For the Judiciary, a powerful arm of government to operate under the rule of law, full confidence, and this must be unadulterated, must exist in that institution. It must indeed be demonstrably shown especially if it is the other arms of government that are involved. In civil days both the Executive and the Legislature must show to the entire nation their demonstrable confidence in the Judiciary. The responsibility is greater during military rule.
The military in coming to power is usually faced with the question as to whether to establish a rule of law or rule of force. While the latter could be justifiably a rule of terror, once the path of law is chosen the mighty arm of government, the militia which is an embodiment of legislature and executive, must in humility bow to the rule of law thus permitted to exist.
The rule of law knows no fear, it is never cowed down; it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence.
In Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 this Court expressed its view fully on the essence of the rule of law. Obaseki J.S.C. said-
“Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course.”
I was of the view that one organ of government must never exist in sabotage of the other. I said further –
“I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution. When the Executive is the Military Government which blends both the Executive and the Legislature together and which permits the Judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.”
The act of dismissal of the Appellant while the action was still pending is patently illegal and void.
I must allow the appeal and it is hereby allowed.
The judgment and order of the Court of Appeal dated 6th March 1986 including its order as to Costs are hereby set aside. In its place the following order is made:
- The interdiction and subsequent dismissal of the Appellant Saidu Garba are hereby declared illegal and void. The order of interdiction and dismissal are hereby set aside.
- The Appellant, Saidu Garba, is hereby reinstated and his service shall be regarded as unbroken but continuous from the period prior to the purported interdiction and dismissal till the present date.
- For the avoidance of doubt he shall be entitled to all his emoluments for the entire period prior to the purported interdiction and dismissal till the present date.
Costs in the Court of Appeal are assessed at N500.00 and Costs in this Court are also assessed at N500.00.
And so be it.
SC.128/1986
