The Council of Yaba College of Technology V. Nojeem Olukemi Awoniyi (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

TIJJANI ABUBAKAR, J.C.A.

This appeal is against the Ruling of the Federal High Court, Lagos delivered by I. N. Auta J. (Now C.J.) on the 2nd day of February 2007 in suit No. FHC/L/CS/124/2003 wherein the Court below granted all the prayers of the Respondent as contained in his Motion on Notice dated 17/02/2003. Aggrieved by the decision, the Appellant herein filed a Notice of Appeal dated 17/04/2007 challenging the whole decision of the Court below.

The Respondent herein was employed by the Appellant in 1991 as an academic staff, however the Respondent was dismissed from the services of the Appellant by a letter of dismissal dated 29/04/1999 and signed by the then Rector of the College, Chief (Mrs.) Felicia Odugbesan.

Unhappy with the dismissal, the Respondent filed suit No: FHC/L/CS/124/03 against the Appellant at the Federal High Court Lagos in 2003, the Appellant filed a Preliminary Objection challenging the jurisdiction of the Court on the ground that it lacked Jurisdiction over the suit because the suit was predicated on the Public Officers (Special Provisions) Act, otherwise

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known as Decree No. 17 of 1984. Abutu J, (later C.J.) of the Federal High Court declined Jurisdiction and struck out the suit on account of the Preliminary Objection. The Respondent Appealed against the said decision in Appeal No: CA/L/345/03 wherein this Court in its Judgment delivered on 22/07/2005 set aside the Ruling of Abutu J. upon considering whether the Provisions of Section 3(3) of the Public Officers (Special Provisions) Act is not illegal on ground of its inconsistency with the provisions of Article 7 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10, LFN 1990 and ordered that another Judge of the Federal High Court other than Abutu J. be assigned the suit to be heard and determined on the merit.

The suit eventually ended up coming before Auta J, (Now C.J.). The reliefs sought by the Respondent at the court below are as follows:
I. AN ORDER OF CERTIORARI quashing the letter of dismissal from the Federal Public Service issued by Chief Mrs. Felicia Odugbesan, then Rector of the Respondent Polytechnic and dated 29th of April, 1999 and purporting to dismiss the Applicant from the service of the Respondent

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upon the grounds set forth in the statement herewith filed with this application and for the under mentioned reliefs namely:
II. A DECLARATION that the decision of General Abdulsalami Abubakar (Rtd.) the then Head of the Federal Military Government of Nigeria to dismiss him from the services of the Appellant through a letter dated the 29th of April 1999 and signed by Chief Felicia Odugbesan, the then Rector of the Appellant? Polytechnic is illegal, null, void and of no effect whatsoever.
III. A DECLARATION that under and by virtue of all enabling laws in Nigeria, the appointment of the Respondent cannot be lawfully terminated without compliance to the applicable law.
IV. A DECLARATION that the decision of Chief Felicia Odugbesan, the then Rector of the Appellant’s Polytechnic and/or General Abdulsalami Abubakar (Rtd.) the then Head of State to issue or terminate the appointment of the Respondent is malicious, null, void and of no effect whatsoever.
V. An ORDER setting aside the letter of dismissal dated the 29th of April 1999 issued and signed by Chief Felicia Odugbesan, Rector of the Appellant Polytechnic purporting to dismiss the

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respondent from the services of the appellant.
VI. An ORDER reinstating forthwith the Respondent back into his employment as Senior Lecturer of the department of Business Administration of Yaba College of Technology.
VII. An ORDER directing the Appellant to pay and accord the Respondent his accrued emoluments, pre-requisite of office and all relevant entitlements that would have accrued to him since the 29th of April 1999 till when judgment is delivered and complied with.
VIII. Any other equitable relief which the Court may deem fit to grant under the circumstance.”

The suit was heard by Auta J. of the Federal High Court who delivered his Ruling on the 2nd day of February 2007 in favor of the Respondent after considering the arguments of both parties as proffered by their respective Counsel.

The Appellant became aggrieved by the ruling of the lower Court and therefore filed a Notice of Appeal containing three grounds dated 17th April 2007 challenging the whole decision of the Court below. The Notice of Appeal is at page 341-343 of the Record of Appeal, the grounds of appeal less their respective particulars are reproduced as

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follows:
1. The Learned Trial Judge erred in law and fact when he discountenanced all the documents relied upon by the Appellant at the hearing of the case on the ground that they were photocopies of public documents.
2. The Learned Trial Judge misdirected himself when he held that it was only the Governing Council of the Appellant that can terminate the appointment of the Respondent.
3. The trial Court misdirected itelf when it held that the dismissal of the Respondent was done by the Rector, an agent of the Appellant and that being the situation, the Rector cannot be a judge in his own cause.

Learned Counsel for the Appellant Chief J. Akingbola filed the Appellant’s Brief of Argument on the 16th day of July 2008. Ohi Eseile, Esq. Learned Counsel for the Respondent filed the Respondent’s Brief of Argument on the 11th day of September 2008. The Appellant filed a Reply Brief on the 7th day of November 2008.

The issues distilled for determination by the Appellant are set out as follows;
1. Whether the photocopy of a certified True copy of a Public Document is admissible in law.
2. Whether under the Public Officers

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(Special Provisions) Act CAP 381 Laws of the Federation 1990, the Head of State is the appropriate authority to summarily dismiss Public Officer.
3. Whether in the light of the answer to No.3 above (No.2 herein) such authority can be delegated.

On the part of the Respondent two issues for determination were also crafted and submitted for determination, Respondents issues are also reproduced as follows:
1. Whether the lower Court was right in rejecting in evidence documents filed by the Appellant in opposition to the notice of motion of the respondent for being uncertified photocopies of public document.
2. Whether the lower Court was right in holding that the Rector of the Appellant polytechnic who signed and issued Exhibit NOA “1” (the letter of dismissal) to the Respondent, without reference to the Appellant council, acted ultra vires.
3. Whether an order of certiorari will lie to quash the letter of dismissal, Exhibit NOA”1″, issued by Rector of the Appellant Polytechnic to the respondent ultra-vires her power.

The issues for determination set out above have set the stage for discourse in this appeal, the Respondent

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interjected by filing Notice of preliminary objection and sought to deal with it before the appeal is heard and determined on the merit. Preliminary objection at the hearing of an appeal is an opposition to the hearing of the appeal and should be raised promptly and timeously at the beginning of the appeal, if the objection succeeds it terminates the hearing of the appeal in limine either partially or in toto see: OKAFOR v. NWUDE (1999) 7 SC (Pt. 1) 106, SULEIMAN MOHAMMED & ANOR v. LASISI SANUSI OLAWUNMI [1990], 4 SCNJ 23 at 40 and NJEMANZE v. NJEMANZE (2013) 1-2 S.C (Pt. 1) 105. Preliminary objection must be dealt with first before the Court embarks on dealing with the substantive appeal if necessary, See: UWAZURIKE v. A.G. FEDERATION (2007) 8 NWLR (Pt. 1035) 1. I will therefore determine the objection first before proceeding to determine the appeal if so doing becomes necessary after resolving the preliminary objection.

The grounds upon which the Respondents objection is predicated are as follows:
(a) Grounds 2 and 3 of the Notice and issues 2 and 3 formulated in the Appellant brief raise the issue of Jurisdiction predicated on the Public

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Officer (Special Provisions) Act, Decree No. 17 of 1984, and which said grounds and issues are caught by the doctrine of Issue Estoppel in that they challenge the validity of the earlier unanimous decision of this Honorable Court delivered, in this suit, on July, 22, 2005 in Appeal No: CA/L/345/03 which had already decided upon same issue and which said judgment was never appealed against by the Appellant.
(b) Grounds 1, 2 and 3 of the Notice of Appeal and issues 1, 2 and 3 formulated in the Appellant’s brief raise fresh issues which were never considered or pronounced upon by the lower Court in it’s judgment and for which the requisite leave of Court was neither sought nor obtained.
(c) Grounds 1, 2 and 3 of the Notice of Appeal raise issue of fact and/or mixed law and fact and for which the Appellant failed to seek and obtain the leave of this Honorable Court.
(d) All the above-identified grounds of Appeal as well as the issues formulated thereon in the Appellant brief (i.e. issues Nos. 1, 2 and 3) are incompetent and are liable to be struck out.

Arguing the preliminary objection; on ground one learned counsel for the Respondent

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submitted that, it is the law that once one or more of any issues have been distinctly raised in a cause of action and determined between the same parties in a Court of competent jurisdiction, neither the party nor his privies, agents or servants is allowed to re-open or re-litigate any of such issues all over again in another action between the same parties, agents or privies. He referred to AJIBOYE v. ISHOLA [2006] 13 NWLR (Pt. 998) 628 at 643-644, and submitted that this Court settled the issue of jurisdiction as it relates to the provisions of the Public Officers (Special Provision) Act, Decree No. 17 of 1984 entirely in its judgment delivered on the 22nd day of July, 2015 in suit No. CA/L/345/03, which was not appealed against by the Appellant in the instant appeal. Learned counsel argued that the Appellant having failed to appeal against the final decision of this Court in suit No. CA/L/345/03 between the same parties is estopped from raising the same issue of jurisdiction based on the Public Officers (Special Provision) Act, Decree No. 17 of 1984 in this instant case. He urged this Court to hold that a plea of issue estoppel has been successfully raised

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by the Respondent on Grounds 2 and 3 of the Notice of Appeal and issues 2 and 3 formulated in the Appellant’s brief, and urged this Court to strike out the said grounds and the issues distilled therefrom. He referred to ANWOYI v. SHODEKE [2006] 13 NWLR (Pt. 996) 34 at 45.

On the need for grounds of appeal to be based on the decision appealed against, learned counsel contended that ground 1 of the Notice of Appeal and the particulars of error thereunder are incompetent, confusing and misleading. He contended further that the Appellant did not put before the Court below photocopies of certified true copies of public document, rather what was in issue before the lower Court was the admissibility of uncertified photocopies of public documents filed by the Appellant as Exhibits OOF1-OOF5. Learned counsel further argued that the Appellant’s Motion dated 26th September, 2006 which was an attempt to regularize the Appellant’s position was struck out by the Court below, and therefore the issue of admissibility of photocopies of certified public documents never came up before the lower Court.

Learned counsel submitted that ground 1 of the Appellant’s

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Notice of Appeal and issue 1 of its brief are not based on the ratio decidendi of the judgment of the Court below; it is clearly a fresh issue being raised by the Appellant for the first time in this Court without leave and therefore ought to be struck out. He urged this Court to so hold and referred to LAWSON v. AFANI CONSTRUCTION CO. LTD [2002] 2 NWLR (Pt. 735) 585 at 626 and BOSIEC v. KACHALLAH [2006] 1 NWLR (Pt. 962) 587. Learned counsel further submitted that it is only when a photocopy of a public document is certified in accordance with Section 111 of the Evidence Act that it is called a public document. He referred to OBA OKIKI II v. JAGUN [2000] 9 NWLR (Pt. 655) 19 and FAWEHINMI v. IGP [2000] NWLR (Pt. 655) 481-525.

In the same vein, learned counsel for the Respondent argued that Ground 2 of the Notice of Appeal and issue 2 in the Appellant’s brief are also new, because the lower Court never considered and or pronounced on the Public Officers (Special provisions) Act, Decree No. 17 of 1984. He therefore submitted that the ground and the issue are incompetent and should be struck out since leave of Court to raise and argue fresh issues was not

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obtained by the Appellant. He referred to FABIYI v. ADENIYI [2002] 6 NWLR (Pt. 661) 532. Learned counsel also submitted that Ground 3 of the Notice of Appeal and its particulars of error is vague or general in terms and does not disclose any reasonable ground of appeal and it is outside the ratio decidendi of the judgment of the lower Court. He argued that the said ground 3 contravenes Order 6 Rule 3 of the Rules of this Court and therefore incompetent and can only be allowed if prior leave of this Court is sought and obtained and since that is not the case, the ground ought to be struck out and he so urged this Court.

Learned counsel further submitted that Ground 1 of the Notice of appeal filed by the Appellant is not predicated on accepted, undisputed or admitted facts between the parties, and is at best a ground of mixed law and facts and therefore requires the leave of Court. He relied on C.S.S. BOOKSHOP LTD v. R.T.M.C.R.S. [2006] 11 NWLR (Pt. 992) 530 at 557 and T.A.S.A. LTD v. I.A.S. CARGO AIRLINE [1999] 7 NWLR (Pt. 2002) 159 at 170. Learned counsel further submitted that Grounds 2 & 3 of the Notice of Appeal and the particulars of errors are

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grounds of facts, which require the leave of this Court. He cited NWADIKE v. IBEKWE [1987] 4 NWLR (Pt. 67) at 721 and OJUKWU v. ONYEADOR (1991) 7 NWLR (Pt. 203) 286 at 289 and urged this Court to uphold the objection and strike out the Appeal in its entirety.

In his reply on the question of issue estoppel raised in the Respondent’s Preliminary Objection, Appellant’s counsel submitted that it is a litigant’s constitutional right to appeal to a higher Court on a cause or matter when he feels aggrieved by the decision of the lower Court. He cited FADIORA v. GBADEBO (1978) 3 SC 219 and OYEDE v. OLUSESI [2005] 16 NWLR (Pt. 951) 341 and submitted that the party relying on the plea of Issue estoppel must be able to prove that the issue(s) sought to be answered by the other party at the Appellate Court is same on all ramifications with that already answered by the trial Court. Learned counsel contended that the grounds upon which this present appeal is brought and the issues formulated are radically different from that which formed the basis of this Court’s judgment delivered on 22/07/2005 in Suit No:  as the lone issue before this Court in the suit

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bordered on jurisdiction, while the issues in the instant appeal are not on all fours on question of jurisdiction.

Learned counsel contended that Exhibits OOA1-OOA5 were photocopies of Certified True Copies of Public Documents issued under the hand of the appropriate authority and duly certified in accordance with the provisions of the Evidence Act. He submitted that the issue in this Appeal borders on admissibility of evidence and not jurisdiction, and that Grounds 2 & 3 and Issues 2 & 3 sought to be struck out by the respondent are competent. He further submitted that if the trial Court had admitted in evidence Exhibit OOA3, the decision would have been different and this appeal will not be necessary, he urged this Court to so hold.

???On the Respondent’s submissions that the Appellant’s Grounds 1 – 3 of its Notice of Appeal and Issues 1-3 formulated for determination in its Appellant Brief raised fresh issues, learned counsel for the Appellant then submitted that the Appellant did not raise any fresh issue and therefore does not require the leave of this Court, he said the grounds and the issues crafted therefrom are competent. He

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submitted that the crux of this matter had always been that the appropriate authority who was then the Head of State by virtue of an operative valid legal document dismissed the Respondent.

On whether the Appellant needs the leave of Court to raise its Grounds of appeal, learned counsel for the Appellant referred to Section 241 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria to submit that the leave of this Court is not necessary where an Appellant’s ground of appeal involves question of law and law alone. He submitted that the grounds of appeal border on questions of law and need no leave of this Court before they are raised, and that the trial Judge erred in law when he took the Rector of the Appellant for the authority that dismissed the Respondent instead of the Head of State. Learned counsel urged this Court to so hold.
The crux of the Respondent’s submission in ground 1 of its Preliminary Objection argued at page 12-16 of the Respondent’s brief of argument is that Grounds 2 and 3 of the Notice of Appeal filed by the Appellant and issues 2 and 3 formulated for determination in the Appellant’s brief raise the issue of

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Issue estoppel on the ground that this Court settled the issue of jurisdiction as it relates to the provisions of the Public Officers (Special Provision) Act, Decree No. 17 of 1984 entirely in its judgment delivered on 22nd of July, 2015 in suit No. CA/L/345/03. The Appellant has not appealed against the Judgment of this Court in CA/L/345/03, between the same parties; the Appellant is therefore estopped from raising the same issues. The Learned Counsel for the Appellant counsel held contrary view.

The Supreme Court of Nigeria, in ADEBAYO v. BABALOLA [1995] 7 NWLR (Pt. 406) 383, explained the doctrine of Issue estoppels where the Court stated as follows and I quote:
“The doctrine of res judicatam of which issue estoppels is a specie, is a fundamental doctrine of all Courts that there must be an end to litigation, public policy also demands that once a Court of competent jurisdiction has settled by final decision, the matters in contention between the parties, they should leave the Courts alone.”
The Court further highlighted the conditions for the application of the doctrine of issue estoppel; they are:
1. The same question was decided in earlier

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proceedings;
2. The judicial decision said to create the estoppel was final; and
3. The parties to the judicial decision or their privies were the same as the parties to the proceedings in which the estoppel is raised or their privies.
See: MICHAEL EZENWA v. OLALEKAN KAREEM [1990] 3 NWLR (Pt. 138) 258 at 264, 267-268.

The decision of this Court in suit No: CA/L/345/03, is at pages 124-146 of the Records of appeal, it was delivered by my learned brother M. D. Muhammad (Now JSC) on the 22nd day of July 2005. The parties in the suit are: Nojeem Oluwakemi Awoniyi as Appellant and The Council of Yaba College of Technology as Respondent. In the instant case, the parties are same, this time the Appellant in the former suit is the Respondent herein, vice versa. In effect therefore the parties are the same.

There is therefore no doubt that the decision of this Court in the earlier decision between the parties is final. The only condition on Issue estoppel, which the parties herein disputed, is that the question decided in the earlier proceedings differs from the question determined in the instant suit. The Appellant’s argument is that,

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the lone issue before this Court in Appeal No: CA/L/345/03 bordered solely on jurisdiction, while the issues in the instant appeal are not on all fours. The Respondent on the other hand maintains that the issue herein is the same as the issue of jurisdiction already decided upon by this Court.

It thus becomes necessary to determine whether or not Grounds 2 and 3 of the Notice of Appeal and issues 2 and 3 formulated in the Appellant’s brief raise the same issue of jurisdiction as it relates to the provisions of the Public Officers (Special Provisions) Act, Decree No. 17 of 1984 which has already been decided by this Court in its judgment delivered on 22nd day of July, 2015 in Appeal No: CA/L/345/03 between the same parties. The said grounds and issues have been earlier reproduced in this judgment.

What led to appeal No: CA/L/345/03 is the ruling of Abutu J. of the Federal High Court, Lagos division delivered on 21/7/2003 in suit No: FHC/L/CS/124/2003 (found at page 118-123 of the Records of Appeal), wherein the Court declined jurisdiction upon the Preliminary Objection raised by the Defendant (Appellant herein) that the Court lacked jurisdiction

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on the ground that the Applicant (Respondent herein) is a public officer and that his dismissal cannot be questioned in a Court of law by virtue of S.3 (3) of the Public Officers (Special Provisions) Act, 1990. The last paragraph of the Ruling at page 123 of the record of appeal reads as follows:
“In the result I hold that this action is caught up by the provisions of S.3 (g) of the Public Officers (Special Provisions) Act, 1990. The jurisdiction of this Court has been effectively ousted. The suit is struck out for want of jurisdiction”.

In appeal No: CA/7/345/03 wherein the present Respondent appealed against the ruling which is partly referred to above, this Court set aside the ruling of the lower Court to decline jurisdiction and further remitted the case back to the Federal High Court to be determined by a judge other than the judge that was seized of the matter initially. In the said judgment, part of which is below reproduced, the issue considered by this Court as can be found at pages 134 -135 & 137 of the records of appeal, it reads as follows and I quote:
“Appellant’s sixty-seven page brief contain the five issues drawn from the

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five grounds in his Notice of Appeal considered to have arisen for the determination of the appeal. The 5th issue being the most relevant and indeed crucial to the determination of this appeal reads:-
‘Whether the provisions of Section 1, and 3(3) of the Public Officers (Special Provisions) Act Decree No. 17 of 1984 is not illegal or the ground of its inconsistency with the provision of Article 7, 13(2) and 15 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria 1990?’
On Respondent’s part, four issues have been formulated the 4th of which for all intent and purpose is the same with Appellant’s 5th issue is hereunder reproduced for ease of reference:-
‘Whether the provision of Section 3(3) of the Public Officers (Special Provisions) Act is invalid on grounds of inconsistency with the provisions of Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federal 1990.’
It is instructive to explain why this appeal will be determined purely on the basis of Appellant’s 5th issue which is the same as

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Respondent’s 4th issue for determination as drawn from the 5th ground of appeal as reproduced.
…The only question to answer is, therefore, whether or not the lower is right in declining jurisdiction over Appellant’s cause of action.”

It is evidently clear from the above that the only issue considered by this Court in that appeal was whether or not the lower Court was right to have declined jurisdiction having regard to the matter brought before it. On the other hand, in the instant appeal, neither of the grounds in the notice of appeal at pages 341-342 of the records nor the three issues formulated in the Appellants brief (already reproduced in this judgment) raise or question the jurisdiction of the trial Court, the issues in this instant Appeal include inter alia, whether the photocopy of certified true copy of a public document is admissible and whether the Head of State is the appropriate authority to summarily dismiss Public Officers under the Public Officers (Special Provisions) Act CAP 381 Laws of the Federation 1990. The Order of this Court in Appeal no. CA/L/345/03 is that the ruling of the Federal High Court declining jurisdiction was

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reached per incuriam and same was therefore set aside. It is on this basis that this Court ordered that the matter be remitted to the Chief Judge of the Federal High Court for re-assignment to another judge of the Court who subsequently heard and determined the matter on its merits and judgment was then delivered on the 2nd day February, 2007 which led to the instant appeal. Having said this much on this point, I am of the view that, the objection of the Respondent on grounds of issue estoppel is devoid of substance and is hereby discountenanced.

On the 2nd ground of objection, it is the contention of Respondent’s counsel that ground 1 of the Appellant’s Notice of Appeal and issue 1 in its brief are not based on the ratio decidendi of the judgment of the Court below, and is therefore clearly a fresh issue being raised by the Appellant for the first time in this Court without the leave of Court having been obtained and therefore ought to be struck out.

The law is trite that a ground of appeal must arise from the live issues that were determined by a lower Court, that is, such issue(s) must relate to the decision and should be a challenge to the

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validity of the ratio of the decision appealed against. See: MRS. F. M. SARAKI & ANOR. v. N. A. B. KOTOYE [1992] NWLR (Pt. 264) 150, CHAMI v. U.B.A PLC [2010] 6 NWLR (Pt. 1191) 474 at 492 and NDULUE & ANOR v. OJIAKOR & ORS [2013] LPELR-1989 (SC). InIKWEKI v. EBELE (2005) LPELR-1490 (SC) page 20, Para. C-G. The Supreme Court per Oguntade, JSC held as follows and I quote:
“An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate Court. The appellate jurisdiction of this Court inter alia is to review the decisions/and or judgments of the Court of Appeal. If therefore, an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out. See: Uhunmwangho v. Okojie

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(1999) 5 NWLR (Pt. 122) 471 at 491″.

Ground 1 of the Notice of appeal has already been reproduced in this judgment; for purposes of clarity let me reproduce it again as follows:
1. The Learned Trial Judge erred in law and fact when he discountenanced all the documents relied upon by the Appellant at the hearing of the case on the ground that they were photocopies of public documents.

In the particulars of error that follow, the Appellant stated as follows:
a. The Appellant relied on Exhibits OOA1-OOA5, which were, photocopies of Certified True Copies of public documents and ought to be admissible in evidence.
b. Exhibit OOA3 is an Instrument of the Head of State of the Federal republic of Nigeria, which the Court ought to take judicial Notice.

Contrary to the contention of the learned counsel for the Appellant, it is apparent from the records before this Court that Exhibits OOA1-OOA5 tendered before the trial Court are uncertified photocopies of public documents. The records at pages 227-234 reveal that upon hearing of the Respondent’s (Plaintiff therein) motion on 20/7/2006, the Court adjourned to 27/9/2006 for further

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hearing. However on the 27/9/2006, the Appellant (as Respondent) brought a motion dated 25/9/2006 for leave of Court to file a further counter affidavit, the motion was supported by 13 paragraph affidavit deposed to by one Eric Igbedion. See: pages 235-241 of the records.

Paragraphs 4-7 of the said affidavit are reproduced as follows:
4. That the Respondent/Applicant had earlier filed a further and better counter Affidavit in response to the Applicant/ Respondent’s Originating Motion.
5. That in the said further and better Counter Affidavit the following documents were exhibited:
i. Copy of letter ref. TSR/02/197/T/140 dated 25th March 1999 from the Secretary to the Government of the Federation to the permanent Secretary, Federal Ministry of Education, Abuja.
ii. Copy of letter ref. TSR/02/197/T/155 dated 9th April 1999 from the Secretary, Federal Ministry of Education, Abuja.
iii. A copy of an instrument for Dismissal, Removal and Retirement of certain officers under the Public officers (Special Provisions) Act Cap, 381 Laws of the Federation of Nigeria 1990 otherwise known as Decree 17 of 1984, dated 19th March 1999 and

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signed by the then Head of State, General Abdul-salami Abubakar; attached and sent to the Rector under cover of the letter referred to in (ii) above.
iv. Copy of a letter ref. FME/DG/900T3/62 dated 21st April 1999 from the Minister of Education addressed to the Rector.
v. Copy of a list sent to the Rector under cover of the letter referred to in (iv) above, which includes the name of the Applicant in this action.
6. That the aforementioned documents are public documents, which ought to be certified in order to be admissible as evidence in this matter.
7. That the aforesaid documents have now been certified by the appropriate authority. (Underline Mine)

As at the time the Appellant filed the ‘further and better Counter Affidavit in response to the Applicant/Respondent’s Originating Motion’ dated and filed 18/07/2006 (at pages 194 to 197) referred to in paragraph 4 reproduced above of the Affidavit in support of the Motion for leave to file a further counter affidavit dated 25/09/2006 at page 235 to 241, the public documents referred therein were uncertified. The Respondent (plaintiff at the lower Court) at page 264 of the

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record of appeal opposed the application on the ground that hearing had commenced in the matter and that they had made submissions that the documents had not been certified. Subsequently, in a considered Ruling at page 265 of the records, the learned trial judge held as follows and I quote:
“This application is an afterthought. The plaintiff has already addressed the Court on the said documents. The defendants (sic). The defendant are (sic) now by this application trying to correct what was not done, when they filed their reply to his application. This is very old case and there has to be an end to litigation. The case was adjourned to today for the defendant to make his own submission and not to entertain a motion on notice. It will not be in the interest of justice to grant this application. It is accordingly struck out.”

The effect of striking out the Appellant’s application by the lower Court is that the documents, which the application sought to bring in as evidence, were never before the Court. It is as if those documents never existed. Ipso facto, the lower Court did not consider the issue of photocopies of certified true copies of public

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documents. Perhaps, the exhibits filed by the Appellant before the Court were uncertified public documents. The Ruling of the lower Court is contained at page 275-289 of the records, particularly at page 286 thereof, where the learned trial judge noted as follows:
“It is pertinent to note that all the documents filed by the Respondent are photocopies. They are suppose to be public documents emanating from the Head of State and Secretary to the Government, they are therefore public documents, and ought to have been certified, since they have not been certified, this Court cannot look at them. Court has the jurisdiction to entertain this matter.”

I am of the firm view that ground 1 of the Notice of appeal and issue 1 crafted therefrom do not arise from the judgment of the lower Court. The objection of the Respondent on this ground is therefore sustained. Ground 1 of the Appellant’s Notice of Appeal and Issue 1 nominated for discourse in this appeal by the Appellant are accordingly struck out, having been raised as fresh issues by the appellant without the leave of this Court.

The 3rd objection is that all the grounds of appeal

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contain mixed law and facts and that the leave of Court must first be obtained where the ground of appeal contains mixed law and facts. Appellant in his reply contended that the grounds of appeal border on questions of law and law alone and leave of Court is therefore not required.

The law is settled that an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance. Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is reproduced as follows:
241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
In FHA v. KALEJAIYE [2010] 19 NWLR (Pt. 1226) 147 SC 12, the Supreme Court of Nigeria per RHODES-VIVOUR, JSC. Held as follows:
“By the clear provisions of Section 241 (1) (a) of the Constitution a

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right of appeal is conferred on a dissatisfied party to appeal to the Court of Appeal on any ground, be it pure Law, mixed Law and fact or fact???”
See: also; FIRST FUELS LTD. v. N.N.P.C. [2007] 2 NWLR (Pt. 1018) 276, ABUBAKAR v. CHUKS [2008] WRN (Vol. 20) 27 at 34, and NIGERIAN LAB. CORP & ANOR v. PACIFIC MERCHANT BANK LTD [2012] LPELR-7859 (SC) 21-23.
From the above settled position of the law and the decided authorities cited, it is the settled position of the law that grounds of appeal whether of law, mixed law and facts or purely facts are immaterial where the decision appealed against is the final decision of either the Federal or State High Court sitting at first instance. In the light of the foregoing, the Appellant herein has a right of appeal without first obtaining the leave of this Court pursuant to Section 241(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

On the whole, therefore Respondents preliminary objection succeeds in part. Ground 1 of the Notice of Appeal and issue 1 nominated therefrom by the appellant having been raised as fresh issues without the leave of this Court are

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hereby struck out. This therefore means the surviving grounds of appeal and issues in this appeal are grounds 2 & 3 and issues 2 & 3 crafted therefrom by the Appellant.

The surviving issues nominated by the Appellant will be adopted for the purpose of determining this appeal on its merit. Again, looking at the surviving issues for determination, I am of the view that, the issues may be collapsed into one sole issue for determination, as the argument submitted by the parties, effectively deal with the sole issue for determination identified by this Court. The issue is therefore reproduced below as follows:
“Whether under the Public Officers (Special Provisions) Act CAP 381 Laws of the Federation 1990 the Head of State is the appropriate authority to summarily dismiss Public Officers and if affirmative, such authority can be delegated”.

Learned counsel for the Appellant cited Sections 4 (2) (b); 4 (1) (a-c); and 1 (1) of the Public Officers (Special Provisions) Act, Cap 381 Laws of Federation of Nigeria, 1990 and the case of BELLO v. HADEJIA-JAMA’RE RIVER BASIN DEVELOPMENT AUTHORITY [1996] 9 NWLR (Pt. 471) 147 at 158 to submit that

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the Head of State or his appointed authority is the appropriate authority to summarily dismiss, remove or retire any Public Officer. He contended that the Respondent was dismissed by the Head of State through Exhibit OOA3 which was personally signed by the then Head of State, on the grounds of examination malpractice; that the Letter of Dismissal signed by Rector of the Appellant College was done on the directive of the Head of State, and that the Court erred in facts when it misconstrued the said letter to have emanated from the Rector of the Appellant College instead of the Head of State. He submitted further that the learned trial Judge misdirected himself when he held that it was only the Governing Council of the Appellant that can terminate the appointment of the Respondent, learned Counsel therefore urged this Court to so hold.

???On whether the authority of the Head of State to dismiss a public Officer can be delegated, Appellant’s counsel argued that the Head of State or the Armed Forces Ruling Council can delegate the power to dismiss, remove or terminate Public Officers only to the extent that the delegated personnel merely communicate an

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already exercised power. He contended that the Rector as a delegated authority was merely communicating the already exercised powers of the Head of State to the Respondent. Learned counsel submitted that the learned trial Judge misdirected himself by holding that it was the Rector that dismissed the Respondent from service and that the Rector cannot be a Judge in her own cause. He urged this Court to allow the appeal and set aside the judgment of the lower Court in this suit.

In response, Learned counsel for the Respondent contended that the letter of dismissal did not state any reason for the dismissal, and that 15 days before the dismissal, the Respondent was issued with a query accusing him of gross misconduct, the query specifically alleged disrespect to the Rector; that the panel that sat to determine the fate of the Respondent was headed by the Rector, Chief (Mrs.) Felicia Odugbesan herself who equally appointed the other members of the panel and 15 days after the trial, the Respondent was dismissed. Learned counsel argued that the Appellant failed to establish the fact that the Respondent was dismissed by the former military Head of State,

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General Abdul-salami Abubakar pursuant to the Public Officers (Special Provisions) Act, Decree No. 17 of 1984, as not even an official government gazette where the Head of State dismissed the respondent was tendered.

Learned counsel also submitted that the dismissal of the Respondent was carried out by Chief (Mrs.) Felicia Odugbesan single-handedly without the knowledge of the Respondent’s employer, the Council that was dissolved in 1993 and was only reconstituted in the year 2000. He contended that by the provisions of Section 12 of the Federal Polytechnic Act, Cap 139, Laws of the Federation, 1990, only the Appellant Council has the power to dismiss or discipline the Respondent, the Rector therefore acted ultra-vires in issuing Exhibit NOA ‘1’ without any legal authority. He referred to the case of ADENIYI v. THE COUNCIL OF YABA COLLEGE OF TECHNOLOGY [1993] 6 NWLR (Pt. 300) 426 at 461.

Learned counsel submitted that the Appellant refused to carry out the Orders of the Court below delivered on 2nd of February 2007 notwithstanding the fact that there is no Court Order staying the execution of the said judgment of the lower Court. He submitted

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further that the lower Court was right to have declared as null, void and ultra-vires the act of the Rector in issuing Exhibit NOA ‘1’, letter of dismissal to the Respondent having been done without any legal authority whatsoever. Learned counsel urged this Court to affirm and uphold the decision of the Court below that the Appellant Polytechnic acted ultra-vires in issuing the letter of dismissal to the Respondent.

It was further contended by learned counsel for the Respondent that it was the then Rector of the Appellant Polytechnic without the knowledge of the Appellant council, that was dissolved since 1993 that plotted and executed the illegal manner the Respondent was thrown out of office via Exhibit NOA ‘1’, letter of dismissal, and that the Court below was right to have held that the Rector acted ultra-vires her powers and that following the principle of fair hearing, an Order of certiorari will lie to quash it. He referred to ONUZULIKE v. COMMISSIONER FOR SPECIAL DUTIES [1992] 3 NWLR (232) 791 at 815, RE KUBENJI (1974) 11 SC 79 at 125-126 to submit that once it is established that a public authority has done an act without legal authority, such

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as the act of the Rector of the Appellant Polytechnic in issuing Exhibit NOA ‘1’, letter of dismissal from service to the Respondent, certiorari will lie. Learned Counsel further submitted that the Court below was right in it’s decision quashing the act of, and the letter issued by the Rector being an act done without any legal authority. Learned counsel therefore urged this Court to uphold the decision of the Court below, and dismiss the Appeal with substantial cost.

The Appellant in its Reply brief filed on the 7th day of November 2008 relied on ODUWOLE v. FAMIKINWA [1990] 4 NWLR (Pt. 143) 239 at 244-245 and NEBEDUM v. LABISI [2001] 1 NWLR (Pt. 693) 82 at 94-95 to submit that an Order of certiorari will only lie to quash the decision of an authority where it appears that the decision of the acting authority was erroneous in law; and where it is the decision of an inferior Court or Tribunal, then it must be established that there are errors of law on the face of the record of the lower Court or Tribunal or same acted in excess of its jurisdiction, or legal authority or the decision was obtained by fraud, perjury or collusion. Learned counsel contended

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that it was the then Head of State, General Abdul-salami Abubakar that dismissed the Respondent by virtue of the powers derivable under the provisions of Public Officers (Special Provisions) Act, Cap 381 Laws of the Federation of Nigeria 1990, and there was nothing erroneous in law in the exercise of the powers by the then Head of State in dismissing the Respondent as he reserves the power to do so and he never acted ultra-vires. Learned counsel urged this Court to hold that Certiorari will not lie to quash the action of the then Head of State in dismissing the Respondent as it was done within the confines of the applicable law.

To determine the sole issue for determination in this appeal, it is necessary to consider the relevant statutory provisions that constitute the pivot in this appeal. I will consider the provisions of Section 4(2) of the Public Officers (Special Provisions) Act, Cap 381 Laws of the Federation of Nigeria, 1990 which provides as follows and I quote:
“In the operation of this Act, the appropriate authority-
(a) In respect of any office which was held for the purpose of State, shall be the Military Governor of that State,

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or any person authorized by him; and
(b) In any other case shall be the president or any other person authorized by him or the Armed Forces Ruling Council.”
In the interpretation of Statutes, unless there is a contrary intention in the context or object in which the words are used in the Statute, or in the context in which reference is made to them, so as to show a contrary intention different from the ordinary grammatical meaning, the words used therein must be interpreted in their natural and ordinary grammatical meaning. See: ADETAYO v. ADEMOLA [2010] 15 NWLR (Pt. 1215) 169, AMASIKE v. REGISTRAR GENERAL, CAC [2010] 13 NWLR (Pt. 1211) 337 SC, ARAKA v. EGBUE [2003] 17 NWLR (Pt. 848) 1.
It is obvious from the above provisions that the President or any person delegated by the President or the Armed Forces Ruling Council, or Military Governor or any other person delegated by the Military Governor as the case may be, is the appropriate authority with respect to the powers conferred under the Act.
Section 4(2) of the Act has no doubt expressly provided that the President or Military Governor, as the case may be, may validly authorize any

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person to exercise the powers conferred upon them under the Act, including but not limited to dismissal of public officers. It must however be said that this delegation of powers by the President or Governor cannot be capriciously delegated. Being a statutory power conferred as such, it will be expected that any delegation of such powers shall be expressly done via Government gazette. I must say without any hesitation that there is no concrete and cogent evidence on record showing expressly that the power conferred on General Abdul-salami Abubakar, the then Head of State, was in fact delegated to Mrs. Odugbesan, the then Rector of the Appellant Institution at the relevant time. Although, by the tenor of Exhibit NOA1 at page 8 of the record of appeal, signed by Chief (Mrs.) F. A. Odugbesan, the Rector of the Appellant Institution, the letter noted that the Head of State had delegated the powers to dismiss the Respondent to her. For the purpose of clarity, part of the letter reads as follows and I quote:
“DISMISSAL FROM THE FEDERAL PUBLIC SERVICE
I am directed by the Head of State, Commander in Chief of the Armed Forces, Federal Republic of Nigeria,

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General Abdulsalami Alhaji Abubakar to inform you that by virtue of the powers conferred on him under the Public Officers Special Provisions Act, (Decree No. 17, 1984) you are hereby dismissed from the Federal Public Service with effect from 29th April, 1999″

It is apparent from the above that there was no reference to any instrument of delegation of the power of dismissal that was allegedly conferred upon the then Rector. A fortiori, no evidence was led or exhibit tendered by the Appellant indicating the delegation of the powers of the then Head of State on the then Rector. The above letter is at best a document written by the Appellant claiming the delegation of authority to dismiss; it certainly cannot serve as valid and legitimate instrument conferring delegated powers on the Rector to dismiss. I think it is far from it.

Before the President or the Military Governor in the case of a State or any person who has been so authorized exercise his power to summarily dismiss a public officer, it must be established that the person sought to be dismissed qualifies for dismissal as provided by the Act. The power to dismiss does not exist

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independently; it is predicated on the need for the exercise of the power being in existence. Section 1 of the Public Officers (Special Provisions) Act provides grounds for which a Public Officer can be dismissed. Section 1 states that the appropriate authority must be satisfied that:
(a) It is necessary to do so in order to facilitate improvements in the organization 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 has been inefficient in the performance of his duties; or
(c) The public officer has been engaged in corrupt practices or has in anyway 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 above statutory provision was given judicial interpretation and explanation by the Supreme Court of Nigeria in THE GOVERNOR OF KWARA STATE & ORS. v. DADA [2011] LPELR-8132 (SC) Page 29-30, where the Court held Per ADEKEYE, JSC as follows:

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“The crucial aspect of this case is the interpretation of a Statute. It is trite that the legislature does not intend creating injustice or an absurdity; hence the Court must always adopt a construction or interpretation, which will reduce legislation to futility. In interpreting Section 1 (1) of Decree No, 17, there is emphasis on the point that the appropriate authority has to be satisfied that the dismissal, removal or retirement of a public officer falls within any of the four grounds listed in Section 1. Each of the grounds enumerated is independent of each other – it is disjunctive – hence there cannot be recourse to a combination of the grounds to dispense with the service of a public officer.
The law makes special and specific provisions for the removal or dismissal of public officers and no general provision or reasons can override the specific reasons or grounds.
Public officers (Special Provisions) Act as piece of legislation with its ouster clause is one of a kind. The public officer (Special Provisions) Act with all respect is a law that encroaches on vested rights of public officers and in interpreting such laws, the Courts have always

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insisted upon strict construction in view of its far reaching effects and consequences.
Obikoya v. Gov. of Lagos State (1997) 7 NWLR (Pt. 50) pg.385; Bello v. Diocesan Synod of Lagos (1973) 3 All NLR (Pt. 1) pg.330 at pg.344; Wilson v. A-G Bendel State (1985) 1 NWLR (Pt. 4) pg. 572.”
The Supreme Court also held in N.E.P.A. v. OSOSANYA [2004] NSCQR Vol. 17 Page 285-286 per A. I. IGUH, JSC that:
“There can be no doubt that under the Public Officers (Special Provisions) Decree 17 of 1984, the Military Governor of any State or Head of State of the Federal Republic of Nigeria or any person authorized by them had power to dismiss or remove a Public Officer from office summarily or to retire him from public service compulsorily. Once it is established that the officer was dismissed or retired and/or that his appointment was terminated under Decree No, 17 of 1994, a trial Court pursuant to the provisions of Section 3(3) of that Decree would have no jurisdiction to enquire into such dismissal, retirement or termination. But if, on the other hand, it is not established that the dismissal, termination or retirement is under the Decree, then the ouster of

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jurisdiction clause cannot be invoked or avail the terminating authority.”

Now, in the instant case, while the contents of Exhibit NOA5 at page 12 signed by one Lawson Adekunle, the Acting Registrar of the Appellant Institution at the relevant time, indicate that a query was issued against the Respondent as to the alleged “act of negligence and insubordination”, there is nothing on the face of Exhibit NOA1 evidencing that the dismissal of the Respondent is with respect to the alleged negligence and/or insubordination. This is contrary to the intention of Section 1 of the Act, which provides for the circumstances in which the power conferred upon the appropriate authority under Section 4(2) of the Act may be exercised. In the recent case of M.C.S.N (Ltd/Gte) v. CONTINENTAL BROADCASTING SERVICE LTD (Unreported No. CA/L/574/2014) decided by this Court on 29th day of December 2015, this Court observed as follows:
“Ipso facto, it is trite that where a Statute prescribes that a particular act be performed, failure to perform same will lead to whatever consequences that have been provided for under the Statute. In ADESANOYE v. ADEWOLE (supra) at page

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22-23, the Supreme Court, Per TOBI, JSC held:
“Where a Statute clearly provides for a particular act to be performed; failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provisions. In such a situation, the consequences of non-compliance with the statutory provision follow notwithstanding that the Statute did not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply with the statutory provision is against the party in default.”
See: also GAMBARI & Ors v. GAMBARI & Ors [1990] 5 NWLR (Pt. 152)”

In the instant case, Appellant has failed to show that the dismissal of the Respondent was done in accordance with the unambiguous provision of Section 1 of Cap 381.

Even though I am inclined to agree with the Learned Counsel for the Appellant that the learned trial Judge ought to have considered the relevant provisions of the Public Officers (Special Provisions) Act, Cap 381 Laws of the Federation, 1990 and that, as it

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relates to the instant appeal, the President is the appropriate authority conferred with the relevant powers of dismissal of public officers under the Act, which powers can be delegated, there is no evidence on record to show that the President indeed delegated the powers to dismiss the Respondent to Chief (Mrs.) Olugbesan, the author of Exhibit NOA1, who was the then Rector of the Appellant Institution. The learned trial Judge was therefore right when he held that the Respondent was entitled to judgment as per the reliefs claimed.

On the basis of the foregoing therefore, this issue is hereby resolved against the Appellant in favor of the Respondent.

In the result therefore, this appeal is devoid of any scintilla of merit it is hereby dismissed. The decision of AUTA J. (now C.J) of the Federal High Court delivered on 2nd day of February 2007 is hereby affirmed by me.
Cost of N50,000.00 is awarded in favor of the Respondent against the Appellant.

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Other Citations: (2016)LCN/8758(CA)