The Governor Of Kwara State V. Jerome Oladele Dada (2011)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.C.A.
This is an appeal against the judgment of the Court of Appeal, Ilorin Division (‘the court below’ for short) delivered on 28th October, 2004. Therein, the decision of the trial court declining jurisdiction was set aside on the ground that the dismissal of the respondent from the service of the 1st appellant was not done under the provisions of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation 1990. The court below felt that the jurisdiction of the trial High Court was not ousted by the provision of section 3(3) of the above stated Act.
The respondent, as plaintiff at the trial High Court, claimed against the appellants as defendants in paragraph 17 of the statement of claim thus:-
“17 WHEREOF the plaintiff claims against the defendants jointly and severally as follows:-
(i) A DECLARATION that the purported dismissal of the plaintiff from the service of the Kwara State Government vide a Letter Ref. No. S.04144/261 dated 28th June, 1996 emanating from the office of the 3rd defendant and purportedly written on behalf of the 1st defendant is illegal null and void and of no effect whatsoever.
(ii) AN ORDER setting aside the purported dismissal of the plaintiff from the service of the Kwara State Government as contained in the said letter of the defendants.
(iii) AN ORDER commanding the defendants to re-instate the plaintiff into the service of the Kwara State Government and pay him all the salaries, allowances and entitlements.
(iv ) AN ORDER OF INJUNCTION restraining all the defendants either by themselves, servants, privies, agents or through any person or persons howsoever from putting into effect and/or continuing to put into effect the letter of 28th June, 1996 particularly from treating the plaintiff as a dismissed public servant.”
It is apt to state the relevant background facts leading to this appeal briefly. The respondent, an employee of the 1st appellant had risen to the position of ‘Director of Lands’ as at 28th June, 1996 when he was served with a letter of dismissal from service – Exhibit 4. The dismissal was authorized by the Military Administrator of the State vide a letter personally signed by him as extant in Exhibit 20.
The appellants, at the trial court, objected to the court’s jurisdiction by virtue of the provisions of the Act. It appears that they were not happy with the manner in which the respondent processed an application of Kwara Animal Feeds Ltd, to Panat Company Ltd. for Deed of Assignment and alleged misconduct under the Civil Service Rules. There was also the issue relating to improper authentication of Certificate of Occupancy No.4357 by the respondent.
The learned trial judge was properly addressed by learned counsel to the parties on the point relating to the ouster of jurisdiction of the court. The issue was carefully considered and Adebara, J. concluded as follows:-
I therefore have no hesitation in holding that the provision of section 3 (3) of the Act properly and effectively ousts the jurisdiction of this court to entertain this suit and I so hold.”
The learned trial judge struck out the respondent’s claim and thereafter determined the merit of same. The respondent’s dismissal was found to be wrongful, illegal, null and void and of no effect whatsoever.
The respondent was not satisfied with the portion of the learned trial judge’s decision declining jurisdiction and striking out the case. He appealed to the court below on same
Thereat, it was found that the dismissal of the respondent was not done under the provisions of the Act. The decision of the trial judge declining jurisdiction was set aside. The court below further found that since there was no appeal against the judgment on the merit as given by the trial court, the same stands.
The appellants were not happy with the stance posed by the court below and have appealed to this court, briefs of argument were filed and exchanged by learned counsel on behalf of the parties. They were duly adopted and relied upon when the appeal was heard on 15th March, 2011.
The two issues formulated for determination by the appellants read as follows:-
“1. Whether the decision of the Court of Appeal setting aside the judgment of the trial court declining jurisdiction on the ground that the dismissal of the respondent was made not under the provision of the Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation is right and has not occasioned a miscarriage of justice.
- Whether the failure of the Court of Appeal to make pronouncement on the trial courts decision on the merit of the case simply because it has not been made a ground of appeal before the court is right and has not occasioned a miscarriage of justice.”
On behalf of the respondent, two issues were also decoded with slight variation in tone as follows:-
“1. Whether considering the content of the respondent’s letter of dismissal against the antecedents of this case, the lower court was not right in holding that the dismissal was not done under the Public Officers (Special Provisions) Act, Cap. 381 Laws of the Federation and that the jurisdiction of the trial court was not ousted.
- Whether the lower court was not right in its view that the trial court’s judgment on the merit, having not been appealed against, stands.”
Arguing issue 1, learned counsel for the appellants submitted that the learned justices of the court below erred in law and misinterpreted the decision of this court in Nwosu v. Imo State Environment Sanitation Authority (1990) 3 NWLR (Pt.135) 688. He felt that the court below erred when it found that for a dismissal to fall within the purview of the Act so as to oust the jurisdiction of the court, the reason for dismissal of a public officer must fall with those stated in section 1(1) (a) – (d) of the Act. He submitted that the decision in Nwosu’s case which is in pari materia with this case is that the reason for the dismissal of a public officer need not be stated if it can be deduced from the letter of dismissal and the surrounding circumstances of the case that the act of the Governor was made pursuant to the Act.
Learned counsel further submitted that from the letter addressed to the respondent – Exhibit 4 and the surrounding circumstances of this case, the dismissal falls within the provisions of the Act. He alluded to the fact of alleged misconduct in the manner the respondent hurriedly carried out the assignment of Animal Feeds Ltd. to Panat Feeds Limited. He contended that all these show that the author of the letter of dismissal intended that the respondent was dismissed pursuant to the provisions of the Act, in particular paragraph (d) of section 1(1) of same.
Learned counsel further submitted that the expression – “Your service is no longer required” as contained in Exhibit 4 has been given judicial interpretation for termination of appointment or dismissal to be in accordance with section 1(1) of the Act so as to enjoy the ouster clause in section 3(3) of the Act. He cited the case of NEPA v. Ososanya (2001) FWLR (Pt.60) 1441 at 1451.
Learned counsel felt that the court below over-stretched the interpretation of section 1(1)(a) – (d) and 3 (3) of the Act. He referred to the cases of Wilson v. Attorney General, Bendel State & Ors. (1985) 1 NWLR (Pt.4) 572; Attorney-General Bendel State v. Chief C. O. M. Agbofodoh & 2 Ors. 1 (1999) 2 SCNJ 111 at 144. Learned counsel urged that the decision of the court below should be set aside.
On behalf of the respondent, learned counsel submitted that considering the antecedents of the case with particular reference to Exhibits 20, 4 and the provisions of section 1(1) (a)-(d) of the Act, the court below was right in its decision that the dismissal of the respondent was not done under same so as to oust the jurisdiction of the court. He felt that the respondent’s dismissal was not rooted on any of the grounds specified in the Act as directed by the Military Administrator. He submitted that the immunity against proceeding granted by the Act cannot be called in aid against the respondent’s case.
Learned counsel submitted that the court has the jurisdiction to find out if the dismissal was actually done within the contemplation of the Act. He referred to Nwosu’s case (supra) (1990) 21 NSCC (Pt.11) 108 at 135 as well as FCDA v. Sule (1994) 3 NWLR (Pt.305) 257 at 286; Anya v. Iyayi (1993) 2 NWLR (Pt.305) 230 at 312.
Learned counsel submitted that the dismissal of the respondent having been premised on the reason – ‘Your service is not longer required’ which is not one of those expressly provided by the Act, the trial court wrongly declined jurisdiction.
Let me state it briefly that jurisdiction of a court the process of adjudication is very fundamental. It should determine at the earliest opportunity. If a court has no jurisdiction to hear and determine a case, its proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. See: Gabriel Madukolu v. Johnson Nkemdilim (1962) All NLR 587 at 595, Utih & Ors. V.Onoyivwe & Ors (1991)1 NWLR (Pt.166) 66 and Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.
As objection was taken to the jurisdiction of the trial court to try the action, it has an abiding duty at that point in time to inquire whether in fact its jurisdiction has been ousted. It has to be guided by the principle that every superior court of record guards its jurisdiction jealously.
In the interpretation of a statute ousting jurisdiction as in this matter, the court is not imbued with power to inquire as to why its jurisdiction has been ousted. It can only inquire into whether or not, on the prevailing facts and circumstances, the jurisdiction had been ousted or restricted.
It is the duty of the court to construe the provisions of a statute ousting jurisdiction strictly. But once it is clear that an ouster of jurisdiction was intended and from the facts of the case, it comes squarely within the four corners of the statute, the court has no alternative but to hold that its jurisdiction has been ousted. It does not behove on the court to attempt to dance round it and wring a false meaning out of the language of the statute.
A citizen’s right of access to court is of paramount important and should, as much as it is practicable be guided jealously. In deserving cases, a statute which ousts jurisdiction ought to be construed narrowly and strictly against any one claiming its benefit. See: Peanok International Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1 at 25. Garba v. F.C.S.C. (1988) 1 NWLR (Pt.71) 449 at 447.
All the above views are for guidance for due consideration of maters like this one.
From the tenor of the Act, the Military Administrator (as then called) was imbued with power to dismiss, terminate, or retire a public officer. It further goes on to oust the jurisdiction of the courts from adjudicating on “anything done or purported to have been done pursuant to the ‘Decree’. It as in some quartets branded as the “Almighty Decree” because of its sting. Section 3(3) of the Act reads as follows:-
“3 (3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act mater 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 above Provisions sound drastic and abhorrent. The court is however bound by its provisions, if there is no escape route. The clear intention of the words ‘or purported to have been done’ is that where the reason for the Governor’s action under the Act does not fall squarely within any of paragraphs (a)- (d) of such-section 1, if there is satisfactory evidence say, from the letter addressed to the public servant or from other surrounding circumstances that he believed and/or intended that he was acting under the Act, the ouster provisions will apply. See Nwosu’s case (supra) at Page 724.
Now then, the letter of authority to dismiss the respondent along with two others was written by the Military Administrator of Kwara State himself. It is Exhibit 20 which reads as follow:-
“GH/KW/99/111/682
The Chairman
Civil Service Commissioner,
Ilorin,
Kwara State.
25th June, 1996
AUTHORITY PURSUANT TO SECTION 4(2) OF THE PUBLIC OFFICERS (SPECIAL PROVISIONS) ACT NO 17 OF 1984.
- Pursuant to the power conferred on me by sections 1-4 of the Public Officers (Special Provisions) Act No. 17 of 1984 and all other powers enabling me in that behalf I hereby authorize the Kwara State Civil Service Commission through its Chairman to dismiss the following officers from the Public Service of Kwara State:-
(i) Mr. J. O. Dada – Director of Lands
(ii) Mr. Patrick Atolagbe – P.E.O. (GL.12)
(iii) Mr. J.O. Obafemi – A.C.E.O. (GL. 13)
on any or all of the grounds specified in section 1 of the afore-mentioned Act.
- I further direct and authorize the Chairman of the Kwara Stare Civil Service Commission to sign the letter of dismissal.
(Sgd)
BA IYAM
Group Captain
Military Administrator
Kwara State,”
The Chairman of the 3rd appellant complied with the directive of the Military Administrator. He wrote Exhibit 4 and addressed it to the respondent. It reads as follows:-
“Ref. No. S.04144/261
CIVIL SERVICE COMMISSION
Private Mail Bag 1390
ILORIN
KWARA STATE
NIGERIA.
DATE 28TH June, 1996
Mr. Jerome Oladele Dada
Director (Lands)
Dept of Lands, Surveys
& Physical Dev.
Military Administrator Office,
Ilorin.
DISMISSAL FROM THE KWARA STATE CIVIL SERVICE
I am directed by the Government of Kwara State of Nigeria to inform you as follows:-
(a) That you are hereby dismissed from the service of the Kwara State Government pursuant to the provisions of Decree No. 17 of 1984 this is necessary because your service is no longer required in the State Civil Service.
(b) That your dismissal is with immediate effect.
(2) You are to surrender every Government property in your custody to your Head of Department.
(Sgd)
(ALHAJI A. H. KAIAMA)
CHAIRMAN
KWARA STATE CIVIL
SERVICE COMMISSION.”
It is not in doubt that the Military Administrator of Kwara State at the material time was the Chief Executive of the State and the appropriate authority. He personally signed the letter written by him as extant in Exhibit 20. Therein, he authorised the dismissal of the respondent and directed the Chairman of the 3rd appellant to convey same to the respondent. The directive was complied with vide Exhibit 4.
Further more, there was the issue relating to the manner in which the respondent processed an application of Kwara Animal Feeds to Panat Feeds Ltd. for Deed of assignment as well as authentication of Certificate of Occupancy No. 4357 by the respondent. From the surrounding circumstances, it goes without saying that the Military Administrator believed that he acted or intended to act under the Act. There is evidence of compliance with the Act. The court is precluded from delving into the reason upon which the powers for the action is based See: National Electric Power Authority v. Ososanya (supra); Wilson v. Attorney-General, Bendel State (supra): Shitta-Bey v. Attorney-General, Federation & Anor. (1998) 7 SCNJ 264 at 281.
It is not in contention that the respondent was a public officer until he was served with Exhibit 4 on 28th June, 1996. As a Director of Lands, he was within the meaning of section 4 (1) (a) and (b) of the Act read together with section 277 of the 1979 Constitution a public officer See: Uwaifo v. Attorney-General Bendel State (1982) 7 SC 124.
It has been shown that the respondent was dismissed from service on the authority of the Military Administrator of Kwara State who believed he acted or intended to act under the Act. Section 1 (1) (a) of same is of moment.
In my view, the provision of section 3 (3) of the Act effectively ousts the jurisdiction of the trial court as found by it. The court below over-stretched the language of the statute. It attempted to dance round it. It is not the duty of a court of ‘wring’ as false meaning out of the language of the statute. In this respect, the court below embarked upon same; to no avail.
In sum, the main issue is whether the respondent who was dismissed by the Military Administrator in exercise of his powers under the Act can sue for the reliefs claimed by him. Section 3 (3), of the Act forbids same. The respondent has no cause of action and the court has no jurisdiction to entertain the claim of the respondent. The order that is clearly warranted is one striking out the suit as initially done by the trial court. I endorse same. See: Wilson v. Attorney-General Bendel State (supra) Savanah Bank Ltd. v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17.
Issue 1 is hereby resolved in favour of the appellants and against the respondent.
Issue 2, in the prevailing circumstance, has become spent. I only wish to say it that having determined that it had no jurisdiction and struck out the suit, proceedings by the trial court thereafter remain a nullity as pronounced earlier in this judgment. I say no more on this point.
I come to the unalloyed conclusion that the appeal is meritorious. It is hereby allowed by me. The judgment of the court below delivered on 28th October, 2004 is hereby set aside. The respondent’s suit is struck out. In the prevailing circumstance, I make no order on costs.
SC.36/2006
