Sylvester Johnson Mayaki V. Lagos City Council Caretaker Committee (1977)
IDIGBE, J.S.C.
This appeal is from the judgment of Candide Johnson, J., sitting in the Lagos State High Court in an action which, indeed, had a very chequered history. Originally the plaintiff, the appellant herein instituted a declaratory action against three defendants namely, the respondent herein, His Excellency Brigadier Mobolaji Johnson and the Attorney-General of the Federation of Nigeria.
After several multifarious interlocutory applications were entertained in the lower court, the learned Chief Justice of the High Court of Lagos State (Taylor, CJ.) before whom one of these applications was brought ruled that the action against the second defendant – His Excellency, Brigadier Mobolaji Johnson – was incompetent and dismissed the claim against him. At the time of the said ruling, the claim against the three defendants had by leave of the lower court, been amended to read:
“….. the plaintiff claims
(1) jointly and severally against 1st, 2nd, 3rd defendants, a declaration:
(a) that the plaintiff is a pensionable officer of the Lagos City Council (now Lagos City Council Caretaker Committee) and as such is entitled to payment of pension and gratuity from the funds of the council in accordance with the provisions of the law for the time being applicable in the service of the said Council.
(b) that the dismissal of the plaintiff from the office of the Town Clerk in the service of the 1st defendant by the second defendant as contained and conveyed in a letter No. AL/3 dated 28th November 1966 was ultra vires, against the rules of natural justice, illegal, void and of no effect.
(2) An order severally against the 1st defendant for the sum of N150,000 (75,000 old Nigerian Pounds) as damages for wrongful dismissal of the plaintiff by the 1st defendant from the office of the Town Clerk in the service of the 1st defendant.
(3) An order jointly and severally against the 2nd and 3rd defendants for the sum of N150,000 (75,000 old Nigerian Pounds) as damages for unlawful interference with the contractual relationship between the plaintiff and the 1st defendant.
Particulars of Damages
(4) (i) loss of salary for 14 years N84,000
(ii) loss of gratuity N20,000
(iii) loss of pension N46,000
(iv) General damages N150,000”
(underlining supplied)
After the claim against the second defendant was dismissed, the plaintiff, by the leave of the lower court, filed an amended statement of claim in which he asked for a total sum of N103,725.80 as “damages for wrongful dismissal” against the first defendant only (i.e. The Lagos City Council Caretaker Committee). The plaintiff gave evidence and tendered a number of documentary exhibits in support of his claim; and at the close of his case, the defendant rested its case on that of the plaintiff and called no evidence.
After a careful review of the evidence before him the learned trial Judge held that:
“It is true that the court has found that the plaintiff has de facto ceased to be in the employment of the defendant Council but the question is, who was responsible for this The answer from the evidence led by the plaintiff himself is “The Administrator of Lagos, Major Mobolaji Johnson”. This, however, is not the defendant before the court and reference to his part in this suit is merely incidental as it goes to no issue which the court has to determine. Although it is the finding of the court that the plaintiff was wrongfully dismissed from the service of the Council. The present defendant before the court is not answerable for the act of the Administrator and therefore cannot be adjudged liable to the plaintiff in this suit ….” (Underlining supplied)
In the event, the claims were dismissed by the learned trial Judge. This appeal is from the said judgment. Henceforth in this judgment the plaintiff and the defendant will be referred to, respectively, as the appellant and the respondent.
In the lower court the case of the appellant was that he was in 1961, appointed town clerk in the Lagos City Council by that council under the provisions of Section 74(1) of the Lagos Local Government Act 1959, and in that capacity he served the council continuously until 1st December, 1966, when the respondent, as he alleged, “wrongfully ceased further to employ” him “in their service as town clerk or at all without telling him of the complaints against him and without affording him an opportunity of being heard in his own defence.” In his testimony, the appellant also claimed that at the time of his “dismissal” from the service of the respondent he still had 14 more years to serve since, as he claimed, he was entitled to remain in office – subject to good behaviour and satisfactory service – until November, 1980. He, therefore, claimed as total loss of salary, the sum of N11,880, (which represents the total salary he would have received between 1st December, 1966, and 25th November, 1980); and he also claimed a sum of money representing loss of “car basic allowance” for the same period and a certain amount of money due to him as a result of his “loss of pension” (i.e. monies he would otherwise have received under the Pension Regulations applicable to his office, had he not been summarily removed or dismissed).
Under cross-examination, the appellant admitted that the Administrator of the Capital Territory of Lagos in 1966, performed the functions of the Minister for Lagos Affairs who until then was in complete charge and control of the Lagos City Council – the predecessor of the respondent; that Council (i.e. the Lagos City Council), as the respondent also admits, was dissolved in April, 1966. The following Exhibits 5, 6, and 7 – which were put in evidence through the appellant under cross-examination by the respondent show quite clearly that the dismissal of the appellant from his office of Town Clerk of the Lagos City Council was by the Administrator of the Capital Territory of Lagos – His Excellency, Major Mobolaji Johnson – acting on the decision of the Federal Military Government, and that the appellant not only was, at the time of his dismissal from service, fully aware of the situation but also made representations against his dismissal from office to the said Administrator of the Capital Territory of Lagos (hereinafter, referred to as “the Administrator”) and not to the respondent. It is interesting to note that in Exhibit 7 (his note of protest and petition) the appellant asked the Administrator – to whom the same was addressed – to forward a copy of the said note of protest to His Excellency, The Supreme Commander of the Armed Forces of the Republic (but did not ask that a copy be forwarded to the respondent).
We pause to review the events which took place in 1966, prior and up to, the dismissal of the appellant from the office of Town Clerk of the Lagos City Council and of which we are, and as, indeed, the trial court was, bound to take judicial notice. There was on 15th January, 1966, following a revolution in the Army a change of government, which brought into existence the Federal Military Government of the Republic of Nigeria. On the 19th of April, 1966, pursuant to the provisions of Decree No. 25 of 1966 (The Lagos City Council (Dissolution) Decree 1966) (hereinafter referred to as the “Dissolution Decree”) the Lagos City Council was dissolved and the administration of that Council was vested in a Caretaker Committee to be appointed by the Head of the Federal Military Government. By the Military Administrator of the Capital Territory (Delegation of Powers) Notice 1966, published on the 27th day of July, 1966, and retrospectively operative as from the 2nd day of July, 1966, the exercise of the functions conferred on the Executive Council and, in particular, the Hon., The Minister of Lagos Affairs under Sections 68, 74, 79, 82 and 85 inter alia of the Lagos Local Government Act (as amended) (No. 18 of 1959) became delegated to the “person for the time being holding office as Military Administrator of the Capital Territory”. (i.e. Lagos) (See Legal Notice No. 68 of 1966 published in the Laws of the Federal Republic of Nigeria 1966); and in October, and November, 1966, His Excellency, Major Mobolaji Johnson was the Military Administrator of the Capital Territory of Lagos. In June, 1966, the Head of the Federal Military Government appointed a Tribunal of Inquiry (the Chairman of which was Mr. A. Saville) to inquire.
“(a) into the administration, management and financial policy of the Lagos City Council for the period 15th October 1962 to 18th April 1966” and
(b) in particular, inter alia into “the irregularities (if any) committed by any member of the Council, by members or any member of its staff … which may come to the notice of the tribunal at any time in the course of the inquiry and which the tribunal may consider sufficiently serious to require probing; and make recommendations …as the tribunal may think fit”
(See L.N. 43 of 1966 in the Laws of the Federal Republic of Nigeria 1966. On the 21st day of October, 1966, the Military Administrator of Lagos under powers conferred on him by Section 82(4) of the Lagos Local Government Act, 1959, amended the Regulations of the Lagos City Council by providing a further section i.e. “Section 60A” (in an enactment known as “Lagos City Council Staff (Amendment) Regulations 1966”) which reads:-
“Whenever the Federal Executive Council is of the opinion that it is in the interest of the public or of the Lagos City Council to suspend the town clerk from the exercise of the duties of his office, or to dismiss him, on the grounds of misconduct, financial embarrassment, inefficient or unsatisfactory work, or for some other sufficient cause it may accordingly suspend or dismiss the town clerk or issue a directive to that effect and such directive shall be carried out by the Lagos City Council.”
(Underlining supplied)
The tribunal aforesaid was required to submit its report to the Head of State within three months of the 2nd day of June, 1966, or within such extended period as may be thereafter allowed in writing (see Legal Notice 43 of 1966 in the Laws of the Federal Republic of Nigeria 1966).
In due course, the Saville Tribunal of Inquiry appointed under Legal Notice No. 43 of 1966 (i.e. L.N. 43 of 1966) aforesaid, duly held an inquiry and, as appears from his testimony under cross-examination, the appellant appeared and gave evidence at that inquiry. It appears from Exhibit 5 that the Saville Tribunal did submit a report before the 22nd October, 1966, and that acting on the said report, the Federal Government recommended that the appellant be suspended from the exercise of his duties as town clerk to the respondent. Exhibit 5 addressed to the appellant dated 22nd October, 1966, reads:
“Lagos City Council Tribunal of Inquiry:
You are probably aware that the Report of Saville Tribunal of Inquiry into the affairs of the Lagos City Council has been submitted to Government and therein, it has been recommended that you should be suspended from office forthwith. While the whole report is being considered by the Government, it has been decided to implement this aspect of the tribunal’s recommendation immediately.
- In the circumstances, you are hereby suspended from office with effect from today the 22nd day of October, 1966, until further notice.
- Please acknowledge receipt of this letter.
(Sgd) Major M.O. Johnson
Administrator of Lagos.”
Again, we pause to observe that although enacted on the 21st day of October, 1966, the Lagos City Council Staff (Amendment) Regulations 1966 had a retrospective effect, in that its recommencement date was the 20th October, 1966. (The Public was notified of this enactment by a publication in the Supplement to Official Gazette Extraordinary No. 99 Vol. 58 of the 21st day of October, 1966.) The appellant in a note of protest – Exhibit 7 dated 24th October, 1966, – petitioned and pleaded with His Excellency Major M.O. Johnson, the Administrator of Lagos to whom that exhibit was addressed for a reversal or, at least, a stay of the decision of the Government. Parts of Exhibit 7 read:-
“I have not seen the report. The Caretaker Committee of the Lagos City Council (i.e. the respondent, herein), I am sure; either has not seen it or has not studied it. I would be greatly surprised if either the Commander or the Administrator has had time to study the report and the recommendations, as supported by the findings.
- If it is decided to suspend me as town clerk and Head of the Administration of the Council, such suspension must be in accordance with any one of the following Regulations or Orders:
(a) Lagos City Council Departmental Regulations, or
(b) The General Orders of the Caretaker Committee, or
(c) The Government General Orders where (a) and (b) are silent.
(1) Part IV of the Lagos City Council Departmental Regulations deal with procedure for dealing with suspension and the formalities necessary for same… I know of my part in the Tribunal of Inquiry. As Head of the Lagos City Council Administration, the setting up of an Inquiry was a challenge to my administration. I put up a spirited defence of my administration. A copy of my memorandum in defence of the Lagos City Council is attached for your information. I would be surprised if the report and recommendations of the tribunal were anything outside the document which I submitted. My memorandum defending my administration remained undefeated throughout the entire proceedings …”
(Underlining and brackets supplied)
On the 28th November, 1966, however, the Military Administrator of Lagos, by Exhibit 6 addressed to the appellant, dismissed him from the office of Town Clerk in the Lagos City Council. Part of Exhibit 6 reads:-
“Further to my letter …… ….. of 22nd October, 1966 suspending you from office as Town Clerk of the Lagos City Council, I have to inform you that the Federal Military Government has accepted the recommendation of the Saville Tribunal of Inquiry that you should be dismissed from the office of Town Clerk.
- Accordingly, in exercise of the powers conferred by Regulation 60A of the Departmental Regulations of the Lagos City Council (which powers have been delegated to me), you are hereby dismissed from the office of Town Clerk with effect from December 1, 1966…
(Sgd) Major M.O. Johnson
Administrator of Lagos.”
It is clear from the foregoing, and we are in complete agreement with the learned trial Judge, that it was the Administrator of Lagos State (His Excellency, Major M.O. Johnson) acting on the decision of the Federal Military Government that dismissed the appellant from the office of Town Clerk of the Lagos City Council. In doing so, the Administrator was exercising his powers under Section 60A of the Lagos City Council Staff (Amendment) Regulations 1966, which he made pursuant to the powers conferred on him by the Military Administrator of the Capital Territory (Delegation of Powers) Notice 1966. (See Legal Notice No. 68 of 1966). Under the provision of Section 60A of the Lagos City Council Staff (Amendment) Regulations aforesaid, the respondent was bound to give effect to the directive of the Administrator.
After this appeal had been entered in this court, the appellant by a motion on notice to the respondent sought and obtained leave of this court to substitute the Lagos Island Local Government and the Lagos Mainland Local Government (hereinafter referred to as the “substituted respondents”) “jointly and severally” as respondents in the said appeal in place of the Lagos City Council Caretaker Committee which has since been dissolved by the Government by virtue of the “Dissolution Decree”. Altogether ten grounds of appeal – most of them defective and improper – were filed by the appellant.
The court, however, in its discretion entertained argument by the appellant on nearly all of them. We need concern ourselves with one aspect only of the arguments and submissions in support thereof put to us by the appellant who conducted this appeal. In a nutshell, the appellant submitted that the learned trial Judge erred in law in his finding that the dismissal of the appellant from the service of the respondent was an act of a third party (who was not before the court) and not by the respondent, in consequence of which he dismissed the appellant’s claim, because, as the appellant argued, the respondent did not plead any such defence. This submission overlooks the provisions of Section 73 of the Evidence Law Cap 39 in Vol. 2 of the Laws of Lagos State applicable and in force in Lagos during the hearing of these proceedings in the trial court, and also the effect of Exhibits 5, 6 and 7 on the entire proceedings in the trial court. Under the section aforesaid, the trial court, was, and this court is, bound to give effect to the provisions of subsection (1) of Section 73 of Cap 39 which stipulates that the court shall take judicial notice of “all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria”. Under the provisions of Section 73(1) of Cap 39 aforesaid, the laws and enactments which the trial court was expected to take judicial notice of include inter alia:
(1) The Military Administrator of the Capital Territory (Delegation of Powers) Notice of 1966.
(2) The Instrument Constituting The Lagos City Council Tribunal of Inquiry (i.e. The Saville Tribunal of Inquiry) published under Legal Notice No. 43 of 1966 in the 1966 Laws of the Federal Republic of Nigeria.
(3) The Lagos City Council Staff (Amendment) Regulations 1966 published under Legal Notice No. 87 of 1966 in the 1966 Laws of the Federal Republic of Nigeria.
The foregoing enactments undoubtedly compel the trial court and, indeed, this court to take into consideration the part played by “a third party” (in this case, the Military Administrator of Lagos – His Excellency Major Mobolaji Johnson) in these proceedings. In addition, Exhibits 5, 6 and 7 were received in evidence, apparently by consent of parties, and these exhibits show clearly that it was the Administrator (the third party) acting on the decision of the Federal Military Government who dismissed the appellant from the service of the respondent who was under the provisions of the Law (i.e. Section 60A of the Lagos City Council Staff (Amendment) Regulations 1966) bound to give effect – even if they did not agree with that decision and directive – to the decision of the Federal Military Government and directive of the Administrator.
We are, therefore, of the considered view that the submission of the appellant (himself, incidentally, a lawyer by profession) is entirely devoid of substance and merit. Accordingly, we are satisfied that, in the circumstances of these proceedings, the learned trial Judge was right in his view that “the present defendant before the court is not answerable for the act of the Administrator and cannot be adjudged liable to the plaintiff in this suit …”
This appeal fails and it is hereby dismissed with costs assessed at N178.00 to be paid by the appellant to each of the 1st and 2nd “substituted respondents”.
Other Citation: (1977) LCN/1915(SC)
