West African Examination Council & Ors. V. Mr. Monday T. Nkanta (2006)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE, J.C.A.
This is an appeal from the judgment of the Honourable Justice A. O. Ajakaiye sitting at the Federal High Court, Calabar Division delivered on the 21st day of October, 2004. The Respondent as Plaintiff brought an action against the Appellants herein as Defendants in the Calabar Division of the Federal High Court, vide an originating summons filed on the 2nd day of August, 1999 challenging his purported dismissal from service of the 1st Appellant by the appropriate authority prescribed under Decree No. 17 of 1984 (now Public Officers Special Provisions) Act Cap 381 LFN 1990 by virtue of a letter of dismissal dated 30th April, 1999.
The Appellants as Defendants filed a Notice of preliminary objection to the originating summons. The Plaintiff/Respondent subsequently filed a motion to amend the originating summons to which the Defendants filed a counter-affidavit. Leave to amend was given to the Plaintiff/Respondent and he did amend the originating summons, whereby the Defendants/Appellants filed a counter affidavit to the Amended-originating summons. Before the lower court, the bone of contention between the parties was whether the Plaintiff was dismissed by the appropriate authority prescribed under Decree No. 17 of 1984 by virtue of letter of dismissal dated 30th April, 1999. Against this question in his Amended originating summons, the Respondent as Plaintiff claimed the following reliefs:
1. A Declaration that the purported dismissal of the Plaintiff by the Defendants letter (Ref. L/P/6769) of 30th April, 2003 is null, void and of no effect as same did not comply with the provisions of Decree No. 17 of 1984.
2. A Declaration that Plaintiff is still an employee of the West African Examination Council.
3. An order directing the 1st Defendant to pay to the Plaintiff all his financial entitlements and other benefits up to date.
In a considered ruling the learned trial Judge upheld the claims of the Plaintiff/Respondent and held at page 67 of the Record as follows:
“Since the act of the Defendants in dismissing the Plaintiff was not done in compliance with the provisions of Sections 1 and 4 of the Public Officers (Special Provisions) Act (Cap 381) LFN 1990 or Section 5 of the West African Examination Council Act (Cap. 468) LFN 1990, his dismissal as contained in the letter dated 30th April, 1999 (Exhibit E) is hereby declared null, void and of no effect whatsoever. In effect I declare that the Plaintiff is still an employee of the 1st Defendant.
In consequence therefore, I hereby order the 1st Defendant to pay to the Plaintiff all his financial entitlements and benefits up to date.”
Dissatisfied with this judgment, the Appellant filed a notice and grounds of appeal, containing five (5) grounds of appeal on 20/4/2005.
In his brief of argument dated 26/11/2005 and filed on 27/10/2005 before this court, learned Counsel for the Appellants distilled three (3) Issues for determination from the five (5) grounds of appeal. They are:
“1. Whether the originating summons procedure used in commencing this suit in the light of disputed fact did not occasion a miscarriage of justice.
2. Whether the learned trial Judge was right in awarding the payment of all financial benefits to the Respondent without knowing what the benefits are, is not being speculative.
3. Whether the learned trial Judge was right to hold that there was no evidence that Respondent dismissal was authorized by the appropriate authority and so assumed jurisdiction to hear and determine the suit.
In his own brief of argument dated and filed in this court on 21/4/2006, the learned Counsel for the Respondent also formulated three (3) issues which are quite similar to those formulated by the Appellant’s Counsel.
I will therefore consider this appeal on the three (3) issues formulated by the Appellant’s Counsel.
On the propriety of the originating summons procedure adopted at the lower court, the learned Counsel for the Appellants submitted that the counter affidavit of the Appellants clearly stated that the dismissal of the Respondent was done with due compliance with the law and that there was no reply to the averment. The Appellants’ Counsel said, they need not exhibit the authorization of the Head of State to make the evidence acceptable. In as much as the Appellants said that the law was complied with, the Judge ought to have accepted same or if in doubt call oral evidence. Appellant’s Counsel further submitted that at best the affidavits were in conflict and so the court ought to here called oral evidence. The non-resolution of this conflict, said Counsel, led the Judge to erroneously believe the averment of the respondent and disbelieving theirs, thus occasioning a miscarriage of justice. In such a conflict, originating summons procedure cannot be adopted. Learned Counsel for the Appellants relied on the cases of Famfa Oil Ltd. v. A.G Federation (2003)18 NWLR (Pt. 852) 453 at 467, Doherty vs. Doherty (1968) NMLR 241, University of Lagos vs. Aigoro (1991) 3 NWLR (Pt. 179) 376 and then questions rhetorically, can the fact as to whether the Head of State authorized the dismissal of the Respondent which is being disputed by the Respondent not serious enough to have the matter heard or tried by ordinary writ?
On Issue No.1, he submitted finally that the procedure was irregular and led to a miscarriage of justice by the court entering judgment wrongly without appraising the evidence appropriately.
In response to Issue No.1, the Respondent submitted that the gravamen of the case is that the Appellants as Defendants in paragraph 6 of that counter affidavit to the Amended-originating Summons averred that the dismissal of the Plaintiff/Respondent was done in compliance with the provisions of Decree 17 of 1984. And that the only issue before the court was the interpretation of the letter of dismissal dated 30th April, 1999. Respondent’s Counsel added that the learned trial Judge relied on the Provisions of Order 2 Rule 2 (2) of the Federal High Court (Civil Procedure) Rules 2000 and came to the inevitable conclusion that the suit was rightly instituted through the originating summons procedure.
In deciding Issue NO.1, it would be seen that the contention of the learned Counsel to the Appellants that the lower court would have accepted the Defendants/Appellants averment or call oral evidence to resolve conflicts in affidavit evidence or that the originating summons procedure was not applicable are not true from the facts and circumstances of this case. Paragraphs 4 – 7 of the Plaintiffs’/Respondent’s affidavit in support of the Amended originating summons read thus:
“4. On the 7th May, 1999, I reported for duty at the Defendant’s Calabar office in the morning and was served with a letter of dismissal dated 30th April, 1999, and signed by the 2nd Defendant. The said letter is (sic)dismissal is Exhibit ‘E’.
5. Exhibit. ‘E’ stated that my dismissal was under Decree 17 of 1984.
6. I am informed by my Counsel Etim R. Akpan and Associates and I verily believe them that the purported termination of my employment by dismissal is not in compliance with the Provisions of the Decree No. 17 of 1984.
7. I am further informed by my Counsel that my employment with the 1st Defendant therefore, still subsists, and I verily believe them.”
The Defendants/Appellants counter-affidavit to the Plaintiff’s Amended originating summons denied the averments in paragraphs 6 and 7 by the Plaintiff/Respondent above and stated in paragraphs 6 – 8 of the Counter affidavit thus:
“6. That further to paragraph 6, I am informed by Joe Odey Agi, Esq. of Counsel and I verily believe him, that the Plaintiff’s dismissal was done with due compliance with the Provisions of Decree 17 of 1984.
7. That I am informed by Joe Odey Agi Esq. of Counsel and I verily believe him that the court lacks jurisdiction to entertain this case as same is ousted by the Decree.
8. That the Defendants shall at the hearing of this case urge the court to strike out this suit.”
From these facts (affidavit evidence) as presented by the parties before the lower court, it is clear that paragraphs 6 and 7 of the Plaintiff’s/Respondent’s supporting affidavit shifted the evidential burden of non-compliance with the provisions of the said Decree 17 of 1984 unto the Defendants/Appellants. The question that arises to my mind is not whether or not the disagreement as to non-compliance was outside the scope of the originating summons procedure but whether the burden so shifted was properly discharged by the averments in paragraphs 6 and 7 of the Defendants/Appellants counter-affidavit. For example, nothing would have stopped the Defendants/Appellants from stating or further stating by affidavit evidence that the letter of dismissal exhibit “E’ was written by the 2nd Defendant/Appellant on the directive oral or written or as a delegate of the Head of State, this with or without the exhibition of further documents. It is only at that stage that the learned Counsel for the Defendants/Appellants could then be heard to say or complain as he is now doing that the case before the learned trial Judge required the calling of oral evidence or a change from the originating summons procedure. Unfortunately for the Appellants, all that the lower court was confronted with was the interpretation of Exhibit ‘E’ itself, a document which purported to have dismissed the Respondent in compliance with the Provision of the said Decree 17 of 1984. From this perspective, the learned trial Judge was right to have said at page 64 of the record that:
“Let me briefly deal with one other aspect of the submission made by the learned Counsel to the Defendant. He has in his submission faulted the way and manner the suit was commenced. He contended that it ought not to have been commenced by originating summons since the claim evoked disputed facts. My quick answer to that is that the only issue that arose for determination is whether the letter of dismissal served ion the Plaintiff is in consonance with the Provisions of Section 1 and 4 of the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990. This is in line with Order 2 Rule 2(2) of this court’s Rules prescribing when a suit may be commenced by originating summons, that in my view takes care of that contention …. ”
The learned trial Judge was equally right when he held before the above, from the facts of the case that “in the instant case, as I have observed there is no evidence that the letter dismissing the Plaintiff was written by the appropriate authority and there is also no evidence that it was authorized by him. In essence, the dismissal is unlawful, null and void.” It must be pointed out that the cases of Doherty vs. Doherty (supra) Akibu vs. Race Auto Supply Ltd. (supra) and University of Lagos vs. Aigoro (supra) as applied by the Appellants Counsel did not say anything outside of the Provisions of Order 2 Rule 2(2) of the Federal High Court Rules 2000 in relation to the inappropriateness of originating summons proceedings where there are substantial disputes of fact.
Order 2 Rule 2(2) reads thus:
“(2) Proceedings may be begun by originating summons where the sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under a written law, or at any deed, will, contract or other document or some other question of law; or,
There is unlikely to be any substantial dispute of fact.
In the instant case and with great respect to the learned Counsel to the Appellants there was nothing in the affidavit evidence of the parties before the lower court which caused any substantial dispute of facts so as to warrant any other procedure outside the originating summons procedure. Indeed, Exhibit “E’ the letter of dismissal before the lower court could properly come within the purview of Order 2 Rule (2) (2) (a) as the “construction of an instrument made under a written law.” For those reasons, Issue No. 1 is resolved against the Appellants.
On Issue NO. 2, the Appellants complained that the award of financial benefits to the Respondent was in the circumstance speculative.
Appellants’ Counsel submitted that there was no evidence at the trial to support the award of financial benefits to the Respondent and that the learned trial Judge himself found that “neither the Plaintiff nor the Defendants put in evidence the condition of service of the Plaintiff.”
The Respondent, said Counsel did not plead his benefits or entitlements. He added, relying on the cases of Okoebor vs. Police Council (2003) 12 NWLR (Pt. 834) 444, Kotto vs. C.B.N. (1999) 6 NWLR (Pt. 607) 390, Morohun Fola vs. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506, that when an employee complains that his employment has been wrongly terminated or that he was wrongly dismissed, he has the burden of placing before the court not only the terms or conditions of his employment but the manner in which the said terms or conditions were breached by the employer.
Appellants’ Counsel also submitted that the finding of the learned trial Judge that “there is no evidence before me to show to which category of employee the Plaintiff belongs within the purview of Section 5 of the Act” is speculative. He relied on the cases of Kode vs. Yusuf (2001) 4 NWLR (pt. 703) 392 and Esene vs. Jsikuemen (1978) 2 SC 87 and submitted that the court is not to embark on speculation but to act upon facts tested before it.
In response to Issue NO.2, the Respondent reminded the court that Exhibits A-D which show the Respondent’s conditions of service and basic salary were annexed with the supporting affidavit in the court below. Respondent’s Counsel contend that the facts and the supporting Exhibit, as contained in paragraphs 2 and 3 of the Plaintiff’s/Respondent affidavit in support” were not countered by the Defendants/Appellants.
Respondent’s Counsel furthered that the learned trial Judge was right in further examining Exhibit ‘E’ the letter of dismissal in the light of the Provisions relating to staff discipline under Section 5 of the West African Examination Council Act Cap. 468 LFN 1990 in coming to the conclusion that the said letter of dismissal Exhibit ‘E’ did not remove the Plaintiff/Respondent from the service of the 1st Defendant/Appellant.
Counsel concluded, the trial Judge having held that the Plaintiff/Respondent is still in the employment of the 1st Defendant/Appellant rightly ordered that the incidents of his employment should accrue to him.
The first thing to note in respect of Issue NO.2 is the form of action before the lower court. The Plaintiff/Respondent did not approach the court on the basis of a breach of contract with a consequential claim for the award of damages. Rather, the Plaintiff/Respondent went to move the court to hold that the letter of dismissal served on him was a nullity having not been issued as purported by the “appropriate authority” and that if the court so holds, he remains an employee of the Defendant/Appellant.
In this situation, as well as in actions based purely on breach of contract and the award of damages, the authorities would seem to suggest that there must be evidence that such a Plaintiff was an employee of the Defendant and that the contract of employment has been terminated.
See e.g. J. S. Yusuf & Ors vs. Dornier Aviation Nigeria AIEP Ltd. (2004) 19 NWLR (Pt. 880) P. 1 at pp 14 – 15, Morohunfola vs. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506, Kaba Metal (Nig) Ltd. vs. Ativie (2002,) to NWLR (Pt. 775) 250 at 266 – 267.
There is no doubt that the affidavit evidence of the Plaintiff/Respondent coupled with Exhibit A – D met the above stated conditions. However, but contrary to the suggestion of the Appellants’ Counsel, the Plaintiff/Respondent never asked for and the learned trial Judge did not award any form of damages to the Plaintiff/Respondent.
Before the lower court, the Plaintiff/Respondent Amended originating summons asked the court for a determination of only one question, followed by a claim for two declaratory reliefs and a court order as follows:
“… for the determination of the following question.
(1) Whether the Plaintiff was dismissed by the appropriate authority prescribed under Decree No. 17 of 1984 by virtue of letter of dismissal dated 30th April, 1999.
Whereof the Plaintiff claims against the Defendants.
(1) A Declaration that the purported dismissal of the Plaintiff: by Defendants’ letter (Ref. L/P/6769) of 30th April, 2p03 (sic) is null, void and of no effect as same did not comply with the provisions of Decree No. 17 of 1984.
(2) A Declaration that Plaintiff is still an employee of the West African Examination Council.
(3) An Order directing the 1st Defendant to pay to the Plaintiff all his financial entitlements and other benefits up to date.”
Meanwhile, the contest between the parties before the lower court was limited to the question for determination and the declaratory reliefs sought by the Plaintiff/Respondent. In those circumstances, the learned trial Judge after finding for the Plaintiff/Respondent in terms of the sole question for determination could not be said to have acted wrongly to have granted the ‘reliefs and the order directing the payment of the Plaintiff’s/Respondent’s financial entitlements. In this respect, it is important to make a valid distinction between the award of damages and the grant of consequential orders. In Total Nigeria Plc vs. Victoria Island & Ikoyi Residents and Ors (2004) 7 NWLR (Pt 873) 446 at 461, the Court of Appeal (Lagos Division) per Aderemi JCA) defined damages “to be a sum of money given to a successful party as compensation for loss or harm of any kind resulting to him from the act of the defendant”.
In contrast the Kaduna Division of the same Court of Appeal defined consequential Order in the case of Peoples Redemption Party vs. The Independent National Electoral Commission & Ors (2004) 9 NW-LR (Pt.877) 24 at 51- 52 (per Ogbuagu JCA; as he then was) as follows:
“What is a consequential Order? One or I may ask, it is now firmly established, that a consequential order, is one that gives effect to the judgment/order decision. It follows that it cannot detract from it. In other words, as stated in the case of Obeyagbona vs. Obazee (1972) 5 SC 247, a consequence order, is “one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that other judgment or order duly prayed for and made. See Odofin vs. Agu (1992) 3 NWLR (Pt. 229) 350 at 372,19923 SCNJ 161; per Nnaemeka Agu, JSC; perhaps High Chief Albert Sanumi & 5 Ors. vs. The Military Governor of Ondo State & 3 Ors. (1998) 1 SCNJ 1 (1998) 1 NWLR (Pt.534) 365.”
Indeed, from the facts and circumstances of the present case, the learned trial Judge could not have simultaneously ordered the award of damages along with the retention of the Plaintiffs/Respondent’s position in the employment of the Defendant/Appellant. This, not only because damages is a form of compensation but also for the reason of the related and long standing rule that a person who is wrongfully dismissed or whose employment is wrongfully terminated cannot get both damages and reinstatement at one and the same time. See: Kabel Metals Nig. Ltd. vs. Ativie (2002) 10 NWLR (Pt. 775) 250 at 270 – 271, P.T.I vs. Nesimone (1995) 6 NWLR (Pt. 402) 477.
The other complaint of the Appellant on Issue No. 2 was the invocation of the provision of Section 5 of the WAEC Act (Cap. 468) LFN 1990 to justify as it were the Plaintiff’s/Respondent’s conditions of service. Learned Counsel for the Appellant was particularly disturbed by the conclusion of the trial Judge to order the payment of financial entitlements of the Respondent when according to Counsel the learned trial Judge had found that “neither the Plaintiff nor the Defendants put in evidence of the condition of service of the Plaintiff.”
The thinking of the learned trial Judge on the above would best be appreciated if he is quoted in full. At pages 65-66 of the Record he had this to say:
“What then is the remedy available to the Plaintiff in the circumstance? In leg (2) of the reliefs claimed, the Plaintiff seeks “A declaration that the Plaintiff is still an employee of the West African Examination Council” In leg (3) he seeks an order directing the 1st Defendant to pay to the Plaintiff all financial entitlements and other benefits up to date. These takes me to a consideration of the incidence of the Plaintiffs employment. Is the relationship between the Plaintiff and the 1st Defendant that of master/servant per se or is it something above that? Neither the Plaintiff nor the Defendants put in evidence the condition of service of the Plaintiff.
However, there is a statute creating the 1st Defendant, which I hereby take judicial notice of as I am entitled by law to do. That is the West African Examination Council Act (Cap 468) Laws of the Federation 1990. That statute created or established the 1st Defendant Section 5 of that Act dealt with staff discipline………………”
After quoting the provisions of Section 5 of the West African Examination Council Act, the learned trial Judge applied the same to the case before him as follows:
“It is very clear from a total consideration of subsection: (1) (2) and (4) of Section 5 of the Act set out above that the power to dismiss an employee of the 1st Defendant lies with the Council. There is no evidence before me to show to which category of employee the Plaintiff belongs within the purview of Section 5 of the Act. However, upon a clear interpretation, even the least of employee will take benefit from the provision of sub-section (4) of Section 5 of the Act. By that, he is subject to the authority of the Registrar and before the Registrar can dismiss him, it must be with the approval of the Council: That is not so in this case…………..”
In dealing with this aspect of Issue NO.2, one can approach it from the simple but right approach of the learned Counsel to the Respondent that the law is at the breast of the Judge – meaning that a court of law could and that their learned trial Judge was right in invoking necessary provisions of the law in writing his judgment or in support of his conclusions. But indeed, the matter is more than that. In this case, the limited manner in which the terms of the employment of the Plaintiff/Respondent was obstructed or breached has been put before the court. It was not the case before the lower court that the terms of the Plaintiff’s employment were breached, neither was it the case that the Appellant terminated the Respondent’s employment without stating reason. There was equally no question from any of the parties at the lower court of a dismissal by the Council of the Appellant as for example envisaged under the provisions of Section 5 of the WAEC Act Cap 468 LFN 1990. The only question before the lower court was whether the Head of State, that is the ‘appropriate authority’ which indeed had a right to dismiss the Respondent was the person who did or indeed did dismiss him. At page 64 of the Record, the learned trial Judge provided a negative answer to the above sole question as follows: “In the instant case, as I have observed there is no evidence that the letter dismissing the Plaintiff was written by the appropriate authority and there is also no evidence that it was authorized by him. In essence, the dismissal is unlawful, null and void.”
From that point onward, the learned trial Judge needed not refer to the provisions of Section 5 of the WAEC Act, before granting the 2nd and 3rd reliefs of the Plaintiff/Respondent, that is, that the Respondent employment still subsists and that all his financial benefits and entitlements be paid to him. At Common Law, even in simple contracts of personal service, an employer is not bound to state any reason why an employee’s appointment is being terminated. But where a reason is stated by the employer, why an appointment is being terminated, the burden of proving or establishing that reason will be on the employer or master. One, who alleges must prove.
Olaniyan & Ors vs University of Lagos & Ors (1985) 2 NWLR (Pt.9) 599, Ridge v. Baldwin (1964) 3 All E.C. 865.
In other words the further justification by the learned trial Judge of the Plaintiffs/Respondent tenure by reference to Section 5 of the WAEC Act was done Ex abundante cautella with the above, Issue No. 2 is resolved against the Appellants.
Issue NO.3 is whether the learned trial Judge was right to hold that there was no evidence that Respondent’s dismissal was authorized by the appropriate authority and so assumed jurisdiction to determine the suit. Appellant’s Counsel complained that the trial Judge found and relied on the statement of the Respondent that the Provisions of Decree No. 17 of 1984 was not complied with. And that the learned trial Judge misapplied the Supreme court case of Omo vs. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) 444, which he (the trial Judge) heavily relied on. Counsel contended further that even the case of Local Government Service Commission vs. Dada (1997) 8 NWLR (Pt. 516) 293 relied upon by the learned trial Judge supports the Appellants’ case. He concluded that by Section 3(3) of the Decree the court lacks jurisdiction where the termination was done by the appropriate authority and relied on the cases of Nwosu v. Imo State Environmental Sanitation Authority (1990) All NLR 379 and Jombo vs. Petroleum Equalization Fund (2005) 14 NWLR (Pt. 945) 443 at 457 – 458 to say that if the Court proceeds with the case, the end product will be a nullity.
In response to Issue No. 3 Respondent submitted that the learned trial Judge rightly found that Decree 17 of 1984 was not complied with because the second paragraph of the said letter clearly states the person or body that gave approval for the purported dismissal of the Plaintiff/Respondent. The trial Judge, said Respondent’s Counsel, further found that paragraph 2 of the said letter contradicts paragraph 1, in that, it states that it was the Nigeria Administrative and Finance Committee at its 133rd meeting in Lagos on 28th and 29th April, 1999, that approved the said dismissal and not the appropriate authority as stipulated by Decree No. 17 of 1984.
Respondent’s Counsel submitted further that in situations like this where it is claimed that termination of appointment was authorized by an appropriate authority, it is not sufficient to simply claim so or aver so, there must be evidence of such authorization. On this he relied on the cases of Omo vs. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) 444, Wilson vs. Attorney General & ors, Ulegede vs. Military Administrator, Benue State (2000) FWLR (Pt. 22) 981 at 996, Local Government Service Commission & Ors vs. Bamidele Dada (1997) 8 NWLR (Pt. 516) 293 at 303 – 304 and concluded that since there was no such evidence showing the letter of dismissal was written by the appropriate authority nor authorized by him, the learned trial Judge was right to have declared the Respondent’s dismissal unlawful, null and void.
In dealing with Issue No.3, it must first be noted that in spite of the attempt by the Appellants’ Counsel to use judicial dicta in the cases of Omo vs. J.S.C. Delta State (supra) to advantage, it is not in doubt that the decided cases pre agreed that in the application of the provisions of Decree No. 17 of 1984 there must always be evidence of authorization by the appropriate authority. Thus the simple question the learned trial Judge was confronted with and which this court is now confronted with is whether there was authorization by the appropriate authority.
Paragraph 6; of the Plaintiff’s/Respondent’s supporting affidavit claims that “dismissal is not in compliance with the provision of Decree No. 17 of 1984”.
Paragraph 6 of the Defendants/Appellants counter affidavit was no more than a mere denial of the Plaintiff’s averment when in turn it claims that “dismissal was done with due compliance with the Provisions of Decree 17 of 1984”.
Apparently, the Defendants/Appellants at that stage forgot that the burden of proof has been shifted to them and would have been wiser in further averting the mode of compliance and/or authorization.
Meanwhile, it is pertinent to reproduce the content of the letter of dismissal Exhibit ‘E’ itself.
West African Examinations Council
21 Hussey Street
Private Mail Bag 1022
Yaba, Lagos, Nigeria
Cable WAFEXLAGOS
Tel: 800190-7
Telex 26661 WAECNG
UP/6769
10th April, 1999
Nkanta, M. T.
WAEC
Calabar
Dear Mr. Nkanta,
DISMISSAL
This is to inform you that the Head of State, General Abdulsalami Abubakar has by virtue of the powers conferred on him under the Public Officers Special Provision Act (Decree 17 of 1984) removed you from Office in the public interest.
In compliance with the above directive, the Nigeria Administrative & Finance Committee at its 133rd Meeting held in Lagos on 28th and 29th April, 1999 approved that you should be dismissed. You are hereby dismissed from the services of the Council with effect from 30th April, 1999.
You are kindly requested to hand over all Council’s property in your possession including your identity card, to the Human Resources Management Department through your Head of Division/Zonal Coordinator/Branch Controller.
Your salary up to the date of your receipt of this letter will be paid into your bank account in the usual way as soon as possible or in cash payable at the Nigerian Life & Pensions Consultants’ office at 312 Ikorodu Road, on 31st May, 1999.
Please acknowledge receipt of this letter by signing the attached copy and return same to the undersigned.
I wish you good luck in your future endeavours.
Yours faithfully,
M.O. SHONEKAN CHIEF (MRS.)
SDR/Head of National Office
For The Registrar
The first paragraph of the letter of dismissal Exhibit ‘E’ declares that the Head of State, General Abdulsalumi Abubakar, has by the power conferred on him under the Public Officers Special Provision Act (Decree 17 of 1984) removed the Plaintiff/Respondent from office in the public interest. Note, that there was no reference to any form of authorization and the letter was not signed by or for the Head of State rather the letter was signed by M. O. Shonekan Chief (Mrs.) (2nd Appellant) for the Registrar.
The second paragraph of the letter reads thus:
“In compliance with the above directive, the Nigeria Administrative and Finance Committee at its 133rd meeting had in Lagos on 28th and 29th April, 1999 approved that you should be dismissed. You are hereby dismissed from the services of the Council with effect from 30th April, 1999.” )
In these circumstance, the learned trial Judge could not be said to have acted wrongly when he held first that the letter was not signed by the appropriate authority, second, that there was no evidence of authorization and third that paragraph 1 and 2 of Exhibit ‘E’ were contradictory. And because he felt obliged at law to construe the statute strictly, he held in favour of the Plaintiff/Respondent.
Clearly, the Head of State as the appropriate authority cannot remove in one breath for another authority not even the Appellant’s Council to approve the removal in another breath.
The suggestion that the ‘removal’ by the appropriate authority was approved by another body is indeed contradictory. This is because to approve is to sanction or to confirm authoritatively. The Compact Edition of the Oxford English Dictionary (O.U.P) (1971) reprinted (1988) U.S.A. at page 104 gives not less than ten (10) definitions of the word “approve” these include “to take good, ascent to as good, to show to be true, prove, demonstrate, to approve the truth, thereof against someone who questions, display, exhibit, make proof of, to confirm authoritatively to sanction (emphasis supplied).
From the above, it would be seen that the learned trial Judge was right when he found at pages 63 – 64 of the Record that; “In essence, if the Head of State had approved and directed the dismissal of the Plaintiff from service, what other “approval” did the Defendants need to have held another meeting which gave another approval. That position is patently self-contradictory and gives the impression that the only approval to the dismissal was only the one given at the meeting of the Nigeria Administrative and Finance Committee at its 133rd Meeting held in Lagos on 28th and 29th April, 1999. That seriously undermines the assertion or claim that the approval was that of the Head of State” And held thus:
“By virtue of Section 4 (2) of the Public Officer’s (Special Provisions) Act, the act of dismissal must be that of the Head of State or any person authorised by him. There is nothing in the affidavit evidence before me to show that the act of the dismissal of the Plaintiff was done or otherwise authorized by the Head of State. It has been held that in situations like this where it is claimed that termination of appointment was authorized by an appropriate authority. It is not sufficient to simply claim so or aver so there must be evidence of such authorization. See the cases of Omo vs. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) 444, and the case of Willson vs. Attorney General & Ors (1985) 2 SC 191 see also the cases of Ulegede vs. Military Administrator of Benue State (2000) FWLR 981 of 996 and 997 and Local Government Service Commission & 2 Ors vs. Bamidele Dada (1997) 8 NWLR (Pt 516) 293 at 303 and 304.”
I am in agreement with the above findings of the learned trial Judge. Accordingly, Issue NO.3 is also resolved against the Appellants.
As the three (3) Issues in this appeal have been resolved against the Appellant. I hold that the appeal lacks merit and it is hereby dismissed.
N10,000.00 cost is awarded in favour of the Respondent.
Other Citations: (2006)LCN/2122(CA)
