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In The Supreme Court of Nigeria  

On Friday , 27th day of April, 1990  

SC 207/1988

 

 

Before Their Lordships

 

Andrews Otutu Obaseki

......

Acting Chief Judge of Nigeria

Salihu Modibo Alfa Belgore

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

Osita C. Nwosu

.......

Appellant

 

And

 

Imo State Environmental Sanitation Authority & Ors.

.......

Respondents

   

 

Judgment of the Court

Delivered by

Philip Nnaemeka-Agu

 

This is a further appeal to this Court against the judgment of the Court of Appeal, Enugu Division, coram: Olatawura, Onu, and Omosun, JJ.C.A. That court had dismissed the appeal of the plaintiff, Osita C. Nwosu, against the ruling of an Owerri High Court, per Chianakwalam, J., that his jurisdiction to entertain the plaintiff's suit had been ousted by Decree No.17 of 1984.

 

Plaintiff's claim before the High Court was finally amended by his amended statement of claim dated the 22nd day of May, 1986. For purposes of this judgment, I shall rely on the amended statement of claim set out at pages 131 to 136 of the record.

 

The salient points in the statement of claim could be summarized. The plaintiff averred that he was a civil servant and chief executive of the 1st defendant. He was appointed a civil servant in May, 1965, became secretary of the 1st defendant on 12/9/80, and its General Manager/Chief Executive from 2/2/82.

 

On 12/2/82 the 3rd defendant directed the plaintiff to proceed on leave because a junior staff of the 1st defendant had petitioned against the plaintiff for misconduct. The leave had been extended twice. During the period a 5-man ministerial panel under the chairmanship of the 4th defendant was appointed to investigate the allegations in the petition. Several witnesses had been called; but the plaintiff was not called to give evidence. Another panel, an audit panel was also set up under the chairmanship of the 3rd defendant. But it did not find anything against him. As his leave was being extended still, he had to petition the Military Governor. Suddenly, on 15th June, 1985, he saw an advertisement in the Nigerian Statesman, signed by the 2nd defendant, for the post of General Manager of the 1st defendant, even though he had not been dismissed or his appointment terminated. His petitions and letter to the Military Governor inquiring whether he had been dismissed/terminated were not replied to. It was only in an application after he had instituted this action that a purported letter of his dismissal was exhibited; but none had been served upon him before then. The said dismissal was without any query and contrary to the opinion of the State Ministry of Justice. In paragraph 17 he amended his claim thus:-

 

 

(l7)    Wherefore the plaintiff claims against the defendants jointly and severally:

 

(1)    A declaration that the appointment of the plaintiff as General Manager of Imo State Environmental Sanitation Authority is still valid and subsisting.

 

(2)    An order of court on the 1st, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him from June, 1986 till date with immediate effect.

 

(3)    An order of court setting aside the continuing compulsory leave imposed on the plaintiff by the 3rd defendant as being wrongful and ultra vires the powers of the 3rd defendant.

 

(4)    An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever directly or indirectly, preventing the plaintiff from resuming his duty as General Manager of the Imo State Environmental Sanitation Authority.

 

Thus, from the plaintiff's own showing -

 

(1)    He was a civil servant as well as the General Manager of the Imo State Environmental Sanitation Authority (hereinafter called the Authority).

 

(2)    He was aware that a letter of petition had been written against him by a staff of the Authority alleging certain acts of impropriety and imminent collapse of the Authority.

 

(3)    He had been sent on indefinite leave pending an administrative inquiry into the allegations.

 

(4)    He denied ever knowing that he had been dismissed from the service.

 

All the five defendants filed a joint statement of defence. They joined issues with the plaintiff on the above averments. It was averred therein that the plaintiff was merely seconded as General Manager of the 1st defendant from his post in the Ministry of Health. It was pleaded that the 3rd defendant sent the plaintiff on compulsory leave in order to enable him carry out the directive of the Military Governor to investigate the allegations against the plaintiff in the petition. The plaintiff was given the opportunity to meet the case against him. In paragraphs 9, 10, 13, 14 and 21 of the statement of defence, it was pleaded as follows:

 

(9)    In answer to paragraphs 8 of the statement of claim the defendants state that the Panel was set up in accordance with Decree No.17 of 1984 and the directive of the Military Governor to whom the outcome of the investigation was submitted.

 

(10)  In further answer to paragraph 8 of the statement of claim, the defendants state that the Military Governor directed that the plaintiff be dismissed and this was accordingly communicated to the plaintiff. Letter No. 5S.96[f.l/7 of 5th June, 1985 is pleaded and the plaintiff is hereby given notice to produce this letter. . .

 

(12)  In further answer to paragraph 10 of the statement of claim the defendants state that on 24th June, 1985, an officer of the Ministry of Health, the plaintiff's present Ministry was sent to the plaintiff's house to deliver personally the dismissal letter to the plaintiff and could not do so as the plaintiff was not in. The wife of the plaintiff who was present refused to sign for the letter as she claimed that she had definite instructions from her husband not to sign any letter on his behalf. The Ministry of health's Despatch Book is hereby pleaded and will be relied upon at trial.

 

(14)  In further answer to paragraph 10 of the statement of claim the defendants state than on 26th June, 1985 another attempt was made by an officer of the Ministry of Health in company of two Police Escorts to serve the dismissal letter on the plaintiff in his house. This time the plaintiff was in but refused to receive the letters ...................

 

(21)  The defendants will further plead at the trial, lack of jurisdiction on the part of this Honourable Court to try the case in view of the Public Officers (Special Provisions) Decree 1984 Decree No. 17 of 1984 by virtue of which the plaintiff cannot maintain an action on breach of natural justice.''

 

After the close of pleadings, the learned counsel for the defendants filed a motion on notice asking the court to strike out the suit on the ground that it lacked jurisdiction to entertain the same since the court's jurisdiction had been ousted by Decree No.17 of 1984. In support there was an affidavit of 12 paragraphs sworn to by one Christopher Ugwunna Ohaja, Acting General Manger of the Authority. In paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit he deposed as follows-

 

(5)    That following a petition dated 14th December, 1984 which is exhibited and marked Exh. B', the Military Governor directed an Internal Management Audit Panel into the affairs of the Environmental Sanitation Authority by letters SGI/S.0024/2/II/227 of 1st February, 1985 which letter is exhibited and marked Exhibit C'.

 

(6)    Following the directive in Exhibit 'C', the Commissioner for Local Government set up an Internal Audit Management Panel into the affairs of the Environmental Sanitation Authority, appointed members of the Panel and gave them the terms of reference - vide letter MLG/COMIS.290/142 of 13th February, 1985 which is exhibited and marked Exhibit 'D'. The panel sat, took evidence from all persons concerned or aggrieved including plaintiff/respondent, and submitted its report to the Commissioner for Local Government who then forwarded the Report to the Military Governor.

 

(7)    The plaintiff/respondent duly testified and answered to allegations made against him before the panel.

 

(8)    In paragraph 2.1.2 of the Report the panel found as follows: 'On the imminent collapse of the Authority, the Panel is satisfied that evidence abound and that if nothing concrete and meaningful was done, the Authority would undoubtedly collapse.'

 

(9)    The Governor studied the Report and by his letter No. GR/PS.263/294 of 9th May, 1985 directed that the plaintiff/respondent be dismissed. The said letter is exhibited and marked Exhibit 'E'.

 

(10)  The dismissal was duly communicated to the plaintiff/respondent by letter SS.96/T.1/7 of 5th June, 1985 which letter is exhibited and marked Exhibit 'E'.

 

(11)  That the Military Governor acted to improve and reorganise the Authority along the lines decided by the Executive Council of Imo State.

 

(12)  That I am informed by Counsel L.C. Alinnor Esq., Legal Adviser, Ministry of Justice, Imo State and I verily believe same that the action taken by the Military Governor is covered by Decree No.17 of 1984 and that no civil proceedings can lie in any court in respect of that action.

 

Again, those documents were exhibited to the affidavit and numbered A to E. But I need only copy those which I consider relevant to the issues that arise in this appeal. Exhibit "A" was a letter of appointment of the plaintiff to the post of General Manager. It reads as follows-

 

Government of Imo State of Nigeria

Ministry of Housing and Environment

Commissioner's Office Division

Owerri

 

Our Ref: MHE/ENV./S.4/55

2nd February, 1982

 

Mr. Osita Christian Nwosu, Environmental Sanitation Authority, C/o. Ministry of Housing & Environment, P.M.B. 1543, Owerri.

 

Appointment of the General Manager Environmental Sanitation Authority

 

I wish to convey to you His Excellency, the Governor's directive to the effect that you be appointed the General Manager of Imo State Environmental Sanitation Authority. The appointment is with effect from 1st February, 1982. Other details of your appointment will be conveyed to you through the Authority's Board.

 

2.     It is hoped that you will live up to expectations for your high office. Accept my hearty congratulations.

 

Yours faithfully,

Sgd. R.O. NWABUEZE

Commissioner for Housing & Environment.

 

I may observe that the letter did not state that the plaintiff should cease to be a civil servant on the appointment. Exhibit "B" was a petition to the Military Governor of Imo State headed "Imo State Environmental Sanitation Authortity: Mismanagement of Funds and Personnel and Eminent Collapse of the Authority." It was dated 14th December, 1984 and covers 10 pages of typed script. I do not think I need to reproduce the petition here. Suffice it to say that it was signed by one Alex Onwudiwe Chimezie and made very serious allegations of acts of impropriety against the Management of the Authority and the plaintiff in particular.

 

From the issues that have arisen in this appeal I deem it necessary that Exhibit "C" be copied. It runs thus:-

 

Exhibit 'C'

Cabinet Office

Owerri.

Date: 1st February, 1985

 

Secretary to the Military Government and Head of Service,

Imo State

Our Ref: SGI/S.0024/2/II/227

The Commissioner for Local Government,

Ministry of Local Government,

Owerri,

 

Dear Commissioner,

 

Management Contract to Phase out the Consultancy to the Environmental Sanitation Authority During 1985

 

The Military Governor has approved that you set up a small Panel to investigate, in detail, the allegations contained in a petition dated 14th December, 1984 addressed to him by one Mr. Alexander Onwudiwe Chimezie. A photocopy of the petition is attached hereto.

 

2.     The Panel is expected to work quietly.

 

Furthermore, the Military Governor expects the Panel's Report and all related comments within four weeks of the date of this letter. I am, therefore, to request that you insist on the Panel's Report getting to you not later than the next three weeks so that your comments and the Report can get to this office for further actions with the Military Governor within the deadline, please.

 

Yours faithfully

Sgd. G. C. OKEZIE

AG. Secretary to The Military Government and Head of Service.

 

It is noteworthy that the setting up of the Administrative Panel of Inquiry was approved by the Military Governor. It is also stated that the Military Governor would be expecting a Report of the Panel's Investigation. The Permanent Secretary Ministry of Local government proceeded to set up the Inquiry by Exhibit "D". It does appear that after the Panel's Investigation, the report was submitted to the Military Governor. Hence by Exhibit "E" the reaction of the Military Governor to the report was conveyed to the Commissioner for Local Government. Because of this appeal, I shall set it out in full. It runs thus:-

 

Exhibit 'E'

 

Government House, Owerri

9th May, 1985

Our Ref: GH/PS.263/294:

The Commissioner

Ministry of Local Government

Owerri.

 

Dear Commissioner,

 

Environmental Sanitation Authority Management Audit Findings

 

I am directed to refer to your letter to the Military Governor on the above subject and to convey the Military Governor's directives as follows:

 

(a)    The Auditor General should investigate how the total sum of N5.3m which the Environmental Sanitation Authority received was expended. The report should reach you in 3 weeks latest;

(b)    that Mr. Q.C. Nwosu be dismissed;

(c)    that the appointment of Mr. B. S. Nwachukwu be terminated.

(d)    that Mr. E. Ndiri, H.E.O., Mr. F. C. Okwuonu and Mr. E. C. Amanwa be retired;

(e)    that the certificates of all the Authority employees be screened immediately and anyone with faked or unauthenticated certificate should have his/her appointment terminate;

(f)    that the appointments of Messrs. U. N. Onyejiaka, G. Opara and Engr. O. Igbokwe be terminated. They could reapply if the positions are advertised;

(g)   that Mr. F. C. Okwuonu should refund the sum of N1,000.00 being the estimated cost of repairs of vehicle No. IM 1048 UA which he misused.

 

2.     The Military Governor agrees:

(a)   that urgent steps be taken to reorganise the Authority along the line of the Exco Conclusions;

(b)   that now that the Environmental Sanitation Establishment (Amendment) Edict has been published, urgent steps should be taken to negotiate with Progress Bank for a loan and an overdraft facility to enable the Authority put back on the road all the vehicles that are now stranded.

 

3.     He further directs that the man who reported the discrepancies should be compensated.

 

4.     More directives on the Report will be made available to you in due course. Meanwhile you are advised to release the retirements piecemeal pending the time their departure will not militate against the functioning of the Authority.

 

Yours respectfully

Sgd. B.C. AGUNANNE

For: Principal Secretary. (Italics mine).

 

I may observe that this directive includes the statement

 

that Mr. 0. C. Nwosu be dismissed. It does not specify whether O. C. Nwosu to be dismissed was as General Manager of the Authority as a Senior Environmental Planning Officer in the Ministry of Health. I think it is right to say that in the context of Exhibit "E", if the directive was validly given and properly carried out, it would be capable of covering his office in the two capacities. I shall return to this later in this judgment.

 

It also contains directives, based on Exco decisions, on the reorganization of the authority. The next exhibit was Exhibit "F", a letter of dismissal of the plaintiff from the service of Imo State Government dated 5th June, 1985. I shall also copy this. It reads-

 

Exhibit 'F'

5th June, 1985

SS.96/T. 1/7

 

Mr. O.C. Nwosu,

Senior Environmental Planning Officer,

u.f.s. The Permanent Secretary,

Ministry of Health, Administration Division, Owerri.

 

Sir,

 

Dismissal from the Service of Imo State Government: Mr. 0. C. Nwosu, Senior Environmental Planning Officer G1 .10

 

I am directed to inform you that, by an order of the Military Governor, you have been dismissed from the service of the Imo State Government with immediate effect, following the Environmental Sanitation Authority Management Audit findings.

I have the honour to be Sir,

 

Your obedient servant

Sgd. Y. 0. ANOJENWERE,

for Secretary.

 

Ref: No. SS/96/T.1/17A

Civil Service Commission,

P.M.B. 1225, Owerri,

5th June, 1985.

Copy to:

The Permanent Secretary,

Ministry of Health,

Administrative Division, Owerri.

 

Above for information and necessary action.

 

2.      Please deliver the attached original letter without delay to Mr. Nwosu who is on posting to the Environmental Sanitation Authority.

 

Sgd. Y. 0. ANOJENWERE,

for Secretary. (Italics mine)

 

It is important to note that the plaintiff was regarded as being on posting to the Authority. The plaintiff filed a counter-affidavit, of which the most relevant depositions were in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 in which he deposed as follows:

 

(2)    That I was never dismissed by the Military Governor nor by the Commissioner for Local Government.

 

(3)    That the Military Governor did not authorise any particular person to dismiss me as required by Section 4(2)(i) of Decree No. 17 of 1984.

 

(4)    That I was never involved in any inquiry affecting the Ministry of Health as I am not a staff of that Ministry not being employed in the civil service of the state.

 

(5)    That my name was gazetted in the Imo State Gazette, No 32 Volume 10 of 5th December, 1985 as having been dismissed in the Ministry of Health.

 

(6)    That the Ministry of Health has nothing to do with the Commissioner for Local Government.

 

(7)    That I was a public officer on Grade Level 15 as General Manager of the Environmental Sanitation Authority and nowhere is there a document in form of letter or gazette dismissing such an officer.

 

(8)    That the Civil Service Commission of Imo State has no authority over the employees of the statutory corporation.

 

(9)    That my suit is that there was no dismissal at all in which case, my Lawyer Chief M. I. Ahamba informs me, and I verily believe him that Decree No.17 will not apply.

 

(10)  That the Panel of Inquiry did not find me responsible for the quotation cited in paragraph 8 of the affidavit of the respondents, in support of the motion, nor did the deponent complete the paragraph which has a following sentence thus:-

 

For example most of the plants of the Authority have broken down with minor faults that could easily be repaired.

 

(11) That the respondent quoted that paragraph to find something to rest on the panel did not find me guilty of any fraud.

 

I may note that he did not deny paragraph 7 of the affidavit in support which deposed that he (plaintiff) attended the sessions of the Investigating Panel, gave evidence and asked questions. What he said of paragraph 8 was not a denial: He admitted it and added something more. Also, paragraph 4 of his counter-affidavit contradicts his pleading in his statement of claim. For in the former, he denied being in the civil service of the state whereas in paragraph 1 of the former he pleaded that he was "at all times material to this incident . . . a Civil Servant and the General Manager/Chief Executive of the 1st defendant . . ." It appears to me from other materials before the court at the trial that his averment of the pleading is more consistent with the true position: he was both a Civil Servant and

the General Manager of the Authority. This point is important if we must understand the line of communication of his letter of dismissal.

 

The learned trial Judge in his considered ruling took into full account the affidavits on both sides as well as the documentary exhibits and came to the conclusion that the jurisdiction of the court to entertain the suit had been ousted by Decree No. 17 of 1984. He therefore struck out the case with costs. Plaintiff's appeal to this court, the plaintiff shall be called the appellant and the defendants, the respondents. Counsel on both sides filed their clients' briefs of arguments, which they also adopted before us before proceeding to address us orally.

 

The issues for determination arising from the grounds of appeal filed were formulated by the learned counsel for the appellant thus:-

 

(1)    The claim reproduced in the lead judgment of the Court of Appeal (p.243) as being the claim before the court which was the amended claim being different from the claim reproduced by the trial Judge (p. 158-159) which was the original claim on p.9, was the Court of Appeal right to sustain a ruling based on a statement of claim which was no longer before the court, and which materially differed from what was actually before the court?

 

(2)    Considering that the purported letter of dismissal was not signed by the Military Governor, nor by any person duly authorised by him so to do, can the appellant be said to have been dismissed by any appropriate authority as required by Decree No.17 of 1984?

 

(3)    The letter of dismissal having not stated which arm of section 1(1) of Decree 17 applied to the appellant, can the purported act of dismissal be properly said to have been done under Decree No.17 of 1984?

 

(4)    Where act of dismissal is in issue would Decree No.17 of 1984 be properly invoked prior to a finding of the existence of the fact of dismissal and can this fact be resolved without hearing evidence?

 

(5)    Can the purported dismissal of the appellant in a post he vacated in 1981 in the civil service be properly construed as a dismissal in his present position in a parastatal considering that Section 277 of 1979 Constitution makes a clear distinction between public service and civil service?

 

(6)    Was the trial Judge right to have decided the issue before the court, i.e. whether there was a dismissal or not, in order to decide whether Decree No.17 of 1984 applied or not.

 

The formulation of these issues by the learned counsel for the respondents, is as follows:-

 

(1)    Was the appellant dismissed by the Military Governor of Imo State by virtue of the powers conferred on the Military Governor, as the appropriate authority, by the Public Officers (Special Provisions) Decree No.17 of 1984.

 

(2)    Alternatively, can it be said that the appellant was dismissed by the Civil Service Commission of Imo State.

 

(3)    Whether the decision of the trial court which was affirmed by the Court of Appeal was based on a Statement of Claim that was no longer before the Court.

 

(4)    Who was actually dismissed, the Senior Environmental Planning Officer, or the General Manager Imo State Environmental Sanitation Authority or Mr. O. C. Nwosu.

 

I prefer the formulation of the issues for determination by the learned counsel for the respondents. Such issues should, rightly, be formulated in general practical terms, and tailored to the real issues in controversy in the case. It should also be shorn of all argument, as such belongs to another part of the brief. In the instant case the learned counsel for the appellant fell into the error of framing the issues in form of a miniature argument, with the result that it became too detailed, argumentative and too long. That ought to be avoided. I shall however consider the appeal on the basis of the issues formulated by the respondent supplemented by any relevant questions in the appellant's brief which are not covered by the respondents' formulation of the issues.

 

A lot of submissions in the briefs and in argument make it necessary that I begin my consideration of this appeal by asking myself the questions:- on what materials do I base my decision? Can I take into account the affidavit evidence before the court? Do I consider the pleadings or only the statement of claim?

 

It was suggested in appellant's argument that the learned trial Judge should have confined his consideration of the case to, and presumed the correctness of, the averment in the statement of claim. With respects, to have done so would have been tantamount to mixing up two different rules, prescribing two diametrically opposed procedures, that is to say order XXIX rules 1-3 and order XL rules 1 and 2 of the High Court Rules of Eastern Nigeria applicable in Imo State. The former is a procedure in lieu of a demurrer, and, in the ipsissima verbis of the rule:-

 

the defendant shall be taken as admitting the truth of the plaintiff's allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.

 

see Emembolu v. Emembolu (1974) 4 E.C.S.L.R. 125, at page 128.

 

The motion in this case was, however, brought not under order XXIX rules I~3 but under order XL rule 2. That rule is cast in a different context, is intended for a different purpose, and prescribes a different procedure. The whole of order XL deals with trial. I provide thus-

 

ORDER XL - TRIAL

 

(1)    The trial of every suit shall take place before the court and the court shall determine all questions of fact or of law, and partly of fact and partly of law, arising in such suit.

 

(2)    If the court considers it conducive to justice, it may direct that any one or more issues of fact or law arising in any suit may be tried before any other issue or issues.

 

These provisions are peculiar to the Eastern and Northern States (for the North, see order 24 rule 10 of the Civil Procedure Rules) and have no counterpart in the Western States, Bendel and Lagos in which order 22 serves the same purpose as order XXIX (East).

 

It is clear that order XL rule 2 of the High Court Rules for Eastern Nigeria, applicable in Imo State, under which the motion was brought in this case is designed to be a form of trial. It was intended that the issue of ouster of jurisdiction should be tried. An issue is tried when there has been a judicial examination and determination of that issue in court, in accordance with the rules of the particular court, based on the evidence and other materials the parties have produced on the issue and having regard to the issues that have arisen on the pleadings. So, a trial under order XL rule 2 implies that evidence shall be called on the issue, the nature of such evidence, of course, depending on the circumstances. Evidence, of course, includes affidavit evidence. For it is a matter of common knowledge that in any cause or matter begun by originating summons or originating motion, and on any application, evidence may be given by affidavit, unless the Rules or the court otherwise directs, but that the court may order oral evidence to be given in addition thereto or for the affidavit evidence, when in conflict, to be tested. It appears to me that, having regard to the nature of the issue of jurisdiction in this case and as it was one which, if it succeeded, was capable of disposing of the whole case, it was proper for the respondents to have sought that it be tried first and equally convenient that the evidence be by affidavits, with exhibits. If the appellant himself did not like such a procedure he could have resisted it:- see Samuel Atughue v. Okwuegbunam Chime & Anor. (1963)1 All NLR 208. But he did not. Rather, he went ahead and filed a counter-affidavit, whereby in my opinion, he would be deemed to have endorsed or at least acquiesced to the procedure. Raving done so, he must accept the fact that by the affidavit with exhibits and the counter-affidavit, he and the respondents had put the learned trial Judge in a position in which he must adjudicate on the issue of ouster of jurisdiction, having due regard to the issues that arose on the pleadings. Appellant cannot now he heard to complain.

 

In considering the above issues, I must advise myself that what was really the function of the High Court at the stage at which the case was struck out was to inquire whether in fact the jurisdiction of the court had been ousted. The court had to be guided by the principle that every superior court of record guards its jurisdiction jealously. So, while a person's access to have his civil right adjudicated upon by a court may be restricted or ousted by statute, the language of such a statute must be construed strictly. But once, with such an approach, it is clear that an ouster or restriction of the jurisdiction was intended and that, from the facts of the particular 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. For, while a statute may provide that the jurisdiction of a court has been ousted with respect to a particular cause, the court always has the jurisdiction to inquire whether on the facts and circumstances of the particular cause, its jurisdiction has infact been ousted or restricted:- see on this Wilkinson v. Banking Corporation (1948)1 K.B. 271, at p.725, C. A. I shall, therefore, limit my inquiry to those issues which to go answer the question:- was the jurisdiction of the High Court of Imo State to entertain the suit ousted by Decree No.17 of 1984, one way or the other.

 

I shall first but briefly deal with the first issue in the appellant's brief and the 3rd issue in the respondents'. The gist of the appellant's complaint in this regard is that in so far as the learned trial Judge based his ruling on jurisdiction on a statement of claim which had been amended by an amended statement of claim, the ruling cannot be sustained. The learned counsel for the appellant, Chief Ahamba, submitted that whether or not a court has jurisdiction can only be determined from the averments in the statement of claim. The amended statement of claim superceded the original statement of claim. So, in so far as the ruling was based on the statement of claim which no longer existed because it had been superceded, the ruling cannot be sustained. He cited the following authorities in support of his submissions. Thomas y,. Olufosoye (1986)1 NWLR (Pt. 18) 550; Salami v. Oke (1987) 4

 

NWLR (Pt. 63)1; Oguma v. l.B.W.A. Ltd. (1988)1 NWLR (Pt. 73) 658; Orizu v. Anyaeghunam (1978) LRN 216; and Overseas Construction Ltd. v. Creek Ent. Ltd. (1985) 3 NWLR (Pt. 13) 407. In his own submission on behalf of the respondents, Mr. Alinnor, the learned Solicitor-General, on behalf of the respondents, while conceding it that there was a slip submitted that both the statement of claim and the amended statement of claim, which amendment was granted shortly before the ruling complained of, raise substantially the same issue of jurisdiction of the court of trial. So, the slip is not substantial, he submitted.

I may briefly recall the circumstances leading to the slip. The appellant commenced this suit on 20th June. 1985, when he was sent on indefinite leave. The original claim was for a declaration that the post of General Manager of the Authority was not vacant and two injunctions restraining the respondent from filling the post. When it came to the notice of the appellant that the post had been filled. he amended his claim on 1st December, 1985 to read:

WHEREOF the plaintiff prays the court against the defendants as follows:

(1)    An order of the Court that the conduct of the defendants jointly and severally leading to the purported dismissal of the plaintiff is illegal, wrongful, unconstitutional,  null void and of no effect.

 

(2)    An order of the Court re-instatin2 the plaintiff to the post of General Manager/Chief Executive of the Imo State Environmental Sanitation Authority.

 

(3)    An order of this court that the plaintiff is entitled to be paid arrears of his monthly salaries and other perquisites of office with effect from June. 1985 until date of judgment in this case.

 

This amended claim was the basis of his statement of claim filed on the I 6th of January. 1986. Again on the 18th March. 1986, he filed yet another motion for leave to amend his statement of claim. Having been granted leave. he filed his amended statement of claim on 22nd May. 1956. In that amended statement of claim. he pleaded fresh facts and amended the reliefs he claimed to read thus:

 

Wherefore the plaintiff claims against the defendants jointly and severally.

(1)    A declaration that the appointment of the plaintiff as General Manager of Imo State Environmental Sanitation Authority is still valid and subsisting.

 

(2)    An order of court on the 1st, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him from June, 1986 till date with immediate effect.

 

(3)    An order of court setting aside the continuing compulsory leave imposed on the plaintiff by the 3rd defendant as being wrongful and ultra vires the powers of the 3rd defendant.

 

(4)    An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever directly or indirectly, preventing the plaintiff from resuming his duty as General Manager of the Imo State Environmental Sanitation Authority.

 

But, importantly by 23rd April, 1986, that is about one month before the appellant filed his amended statement of claim, the respondents had filed a motion to strike out the suit on the ground that the court lacked jurisdiction to entertain the suit. It is true, therefore, that although the appellant was granted leave to amend his pleading the only pleading of the appellant that was extant and therefore in the contemplation of the parties at the date of filing the motion to strike out the suit was his statement of claim, filed on 16th January, 1986. The result is, in my view, that technically the appellant's amended statement of claim filed on the 22nd May, 1986, superceded the existing statement of claim dated 16th January, 1986, for all the proceedings in the case. It is deemed to have related back to the date of the original statement of claim. See:- Sneade v. Wortherton Barytes & Leading Mining Co. (1904)1 K.B. 295, p.297 should have been the basis for the consideration of the motion before the court. To that extent, Chief Ahamba is correct. But that is not the end of the problem.

 

For, conceding, as I must, that the learned trial Judge committed a slip by basing his ruling on the existing statement of claim when he should have based it on the amended statement of claim, I must still have resolved the issue against the appellant. This is because in so far, as pointed out by both the Court of Appeal in its judgment and the learned counsel for the respondents in his brief, both the existing statement of claim and the amended statement of claim raises the issue of the jurisdiction of the court, I should resolve the issue against the appellant. As we have stated several times, the days when parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots which never deviate from a programmed course. They sometimes slip. But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this:- Onojobi v.Olanipekun (1985)11 S.C. (Pt. 11)156, at p. 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor. (1988)1 NWLR (Pt. 72) 616 at p. 626.

 

In the instant case, as it is pretty clear that the issue of jurisdiction could have been raised either on the existing statement of claim or the amended statement of claim the reliance on the former instead of on the latter, even though in error, is not a ground for allowing the appeal.

 

I shall now take issues numbered 2 and 4 by the appellant and that numbered (ii) by the respondent. Put simply, they raise the questions:- was the appellant, if at all, dismissed from his office by the Military Governor of Imo State or by the Civil Service Commission of that State? The peripheral question which has been raised by the fourth issue as formulated by the appellant is whether Decree No.17 can be invoked without hearing evidence to prove that the appellant has been dismissed.

 

With respect, I am of the view that the second part of the issue numbered 4 in the appellant's brief rests on a clear misapprehension in so far as it tends to say that the issue as to whether or not the appellant had been dismissed from the public service of Imo State could not be resolved. It assumes that inspite of the massive affidavit evidence in support and the counter-affidavit before the court, as well as the six documentary exhibits exhibited, no evidence had been taken. But as I stated above, the issue of jurisdiction was, by the consent or acquiescence of both parties, tried before the High Court in accordance with the procedure accepted by them: to wit-under O. XL rule 2 and by affidavit evidence. Evidence by affidavit is, it must be noted, a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence. For, true, it is the law that where there is a conflict of affidavit evidence called by both sides, it is necessary to call oral evidence to resolve the conflict! see Falobi v. Falobi (1976) 9 & 10 S.C. 1, p.15: Akinsete v. Akinduture (1966)1 All NLR 147. But I believe that it is not only by calling oral evidence that such a conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be a yardstick with which to assess oral testimony:- see Fashanu v. Adekoya (1974) 1 All NLR 35, at p. 48. In the instant appeal, for an example, I feel entitled to resolve the conflict as to whether or not the appellant was dismissed by or at the direction of the Military Governor of Imo State, a conflict that arose from paragraph 6, 9, 10, 11 and 12 of the respondents' affidavit in support of the motion, on the one hand, and paragraphs 2, 3 and 9 of the appellant's counter-affidavit, on the other. In view of this, it may not be quite correct to say that I am limiting myself only to such facts in the affidavits which are not in conflict. By the above approach I shall be able to examine the issue of jurisdiction judicially and determine it one way or the other, according to Order 40 rule 2 and the rules of evidence. It was therefore in error for learned counsel for the appellant in this case to argue that the issue of jurisdiction was not tried.

 

Part of the argument on behalf of the appellant suggests that the letter of his dismissal from the service ought to have been signed by the Military Governor of the State himself. I think this line of argument has ignored a fundamental principle of law which is represented by the maxim; qui facit per alium facit per se. It was expressed in Co. Littleton 258a thus Qui per alum facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself. The maxim has been applied in the execution of many official acts and directives, particularly by high functionaries of government. It was for such situations in official acts that Wade had to write in his Administrative Law (3rd Edn.) at p.67:

 

Although, therefore, the courts are strict in requiring that statutory power shall be exercised by persons on whom it is conferred, and by no one else, they make liberal allowance for the working of the official hierarchy at least so far as it operates within the sphere of responsibility of the Minister.

 

It would be unrealistic to imagine that the Minister would enjoy this power of acting through officials in his Ministry but that a Governor would not. Howbeit section 6(9) of the Constitution (Suspension and Modification) Decree No.1 of 1984 gave a constitutional stamp to the power of a Military Governor to perform his executive functions either directly or through persons or authorities subordinate to him. It provides:

 

Any executive function which by virtue of any such delegation as is mentioned in sub-section (8) above is exercisable by the Military Governor of a State may, subject to any conditions imposed under subsection (6) above be exercisable by him either directly or through persons or authorities subordinate to him.

 

There is nothing in sub-section (6) that limits the powers of the Governor in directing any person, body or authority to sign a letter of dismissal of a public officer in the State from the Public Service of State. So he was capable under the law to direct his Principal Service of State. So he was capable under the law to direct his Principal Secretary, any Commissioner of the Chairman or Secretary of the Civil Service Commission to sign such a letter on his behalf.

 

The next question is whether there was evidence before the learned trial Judge that the Military Governor, in fact, so directed. A summation of the facts deposed to in the affidavit in support and the six documentary exhibits exhibited, shorn of all facts contradicted by the counter-affidavit, shows the following facts namely:-

 

(1)    That as a result of a petition to the Military Governor of Imo State by one Mr. Alex Onwudiwe Chimezie dated the 14th day of December, 1984 (Exhibit "E") which complained of gross acts of impropriety and inefficiency by the appellant which were threatening the collapse of the Environ-mental Sanitation Authority of the State, the Military Governor approved the setting up of an Administrative and an Audit Panel of investigation.

 

(2)    The approval of the Military Governor was conveyed by a letter dated 1/2/85, Exhibit "C", set out above, which was signed by the Secretary to the Military Government and Head of Service. It is noteworthy that Exhibit "C" not only expressed the Military Governor's approval but also stated that the Military Governor was expecting "The Panel's Report and all related comments within four weeks of the date of the letter". Exhibit "C" I further observe, was addressed to the Commissioner for Local Government whose Ministry had supervisory control over the Authority at the time.

 

(3)   By Exhibit "D", the Permanent Secretary Ministry of Local Government signified the appointment of the Investigation Panel by the Commissioner for Local Government, and set out its composition and terms reference.

 

(4)    It does appear from Exhibit "E" that the Report of the Investigating Panel was forwarded by the Commissioner for Local Government to the Military Governor. However, by Exhibit "E" the Military Governor conveyed his reactions thereto and gave various directions on the fates of several members of staff, including the appellant, as well as diverse operations relating to the Authority. This important document has been copied above. The portion of it that is relevant to this case is where it states:

 

Environmental Sanitation Authority Management Audit Findings

 

I am directed to refer to your letter to the Military Governor on the above subject and to convey the Military Governor's directives as follows:

 

(a) .......

(b) That Mr. 0. C. Nwosu be dismissed: - .....

 

Sgd. B.C. Agunanne

for: Principal Secretary.

 

(5)    By a letter, Exhibit "F" dated 5th June, 1985, addressed to the appellant, he was informed that "by an order of the Military Governor" he has been dismissed from the service of the Imo State Government with immediate effect, following the Environmental Sanitation Authority Management Audit Findings. Thus Exhibit "F" gave effect to the directive of the Military Governor as conveyed by his Principal Secretary in Exhibit "E".

 

(6)    On appellant's own showing, in paragraph 5 of his counter affidavit it, his dismissal has been gazetted in the Imo State Gazette No. 12 Vol.10 of December, 5, 1985. This put his dismissal beyond question.

 

A subsidiary question raised on behalf of the appellant in argument is that his dismissal had not been communicated to him; and that before the question as to whether his dismissal was right or wrong could be decided, the fact of his proper dismissal must first be proved. Appellant made a very big issue of this in paragraphs 10, 11, 12 and 13 of his amended statement of claim and, indeed, this was the basis of his claim from its inception on the 15th of June, 1985, until an amendment on the 22nd of May, 1986. The respondents in paragraphs 12, 13 and 14 of the statement of defence averred that the appellant was evading service of the said letter of his dismissal but that he had been duly served. This became an issue for trial. In the respondents' affidavit in support of the application under order XL rule 2, it was deposed on their behalf as follows:-

 

(10) The dismissal was duly communicated to the plaintiff/respondent (i.e. appellant herein) by letter SS.96/T.1/7 of 5th June, 1985, which letter is exhibited and marked Exhibit 'F'. (Italics mine)

 

Though he filed a 13-paragraph counter-affidavit in opposition to the motion for dismissal of the suit and replied to certain specific depositions in the affidavit in support, he never specifically denied that the dismissal was communicated to him by the letter, Exhibit "F". It is, therefore, deemed to have been admitted. Besides, he himself in paragraph 5 of his affidavit quoted the particulars of the Official Gazette in which his dismissal was gazetted. This is a notice to the whole world. In the circumstance, it does not lie in his mouth to dispute that his dismissal was duly communicated to him.

 

On the above state of the facts, it appears pretty clear to me that by Exhibit "A" the appellant was appointed the General Manager and Chief Executive of the 1St defendant Authority. A petition was addressed to the Military Governor of Imo State against him for misconduct, as per Exhibit "B". On the strength of Exhibit "B" the Military Governor directed that the petition be investigated by a Panel. On the report being submitted to the Governor he reacted thereto by Exhibit "E" whereby he, inter alia, directed that the appellant be dismissed from the Imo State Public Service. Because the appellant was still a civil servant as well as the Chief Executive of the 1st defendant Authority his letter of dismissal Exhibit "F" had to be signed by the Secretary to the Military Government but routed through both the Civil Service Commission and his parent ministry, that is the Ministry of Health. From my above conclusion that that dismissal was duly communicated to him, I am satisfied that all the holes the appellant has been trying to pick on the method of dismissal are not valid. It is also pretty clear that it was duly directed by the Military Governor.

 

Learned counsel on behalf of the appellant has attacked the fact that the letter of dismissal Exhibit "F", was signed by the Secretary to the Civil Service Commission. As I have stated the appellant remained both a Civil Servant and the General Manager of the Authority. Although the Commission could dismiss a Civil Servant in accordance with the Civil Service Rules, it did not in this case pretend to exercise its own powers. As Exhibit "F" clearly says, it was carrying out the orders of the Military Governor following the Sanitation Audit Report. This distinguished his case from that of Wilson v. Attorney-General, Bendel State (1985)1 NWLR (Pt. 4) 572 upon which the appellant relies.

 

Appellant has also argued that even if he had been duly dismissed as a civil servant by reason of the gazette and Exhibits "E" and "F", he still retains his position as the General Manager of the Authority which was created by statute as a legal person. Learned counsel on his behalf submitted that under Section 277 of the Constitution there is a great difference between "the civil service of the State and the public service of the State." So, his dismissal as the former does not necessarily include his dismissal as the latter.

 

No doubt "civil service of a state" is service in a civil capacity such as the appellant was as a staff of the Ministry of Health or of Local Government at one time or the other. On the other hand, "public service of a state" includes a state of the Authority which was established by law for the state. I may pause here to observe that the expression "public service of a state" is defined in section 277(1) of the constitution of 1979 to mean "the service of the state in any capacity in respect of the government of the state. . ." This is obviously wide enough to include civil servants. So that public service within the meaning of Decree No. 17 of 1984 includes civil service. So, having said so, I am of the view that in the Decree No.17 of 1984 and the true facts of this case, the two posts are not mutually exclusive. I believe I can take notice that under the present Military Administration many civil servants are deployed to work in corporations and government owned companies without loosing their status as civil servants. Besides, the appellant pleaded he was a civil servant and Chief Executive of the 1st respondent.

 

Now, on the facts, it must be noted that:-

 

(1)    In Exhibit "A" by which he was appointed General Manager of the Authority it was not stated that his appointment as Principal Planning Officer in the Ministry of Health had been terminated.

 

(2)    In Exhibit "E", the Governor simply directed:- this was wide enough to cover his dual functions as a civil servant as well as a public servant in the Authority.

 

(3)    This directive was duly carried out in Exhibit "F" by which he was simply dismissed "from the service of the Imo State Government," which again, is wide enough to embrace the two functions in that it was not stated whether 0. C. Nwosu being dismissed from the service was the General Manager of the Principal Planning Officer.

 

Now sections 1 and 4 of Decree No.17 of 1984, provide as follows:-

 

(1)    Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that-

 

(a)    it is necessary to do so in order to facilitate improvements in the organisation of the department or service to which a public officer belongs; or

 

(b)   by reasons of age or ill health or due to any other cause a public officer has been inefficient in the performance of his duties; or

 

(c)    the public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or

 

(d)    the general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest, the appropriate authority may at any time after 31st December, 1983:-

 

(a)    dismiss or remove the public officer summarily from his office; or

(b)    retire or require the public officer to compulsorily retire from the relevant public service.

 

(1)    In this Decree, "public officer" means any person who holds or has held any office on or after 31st December, 1983 in

 

(a) the public service of the Federation or of a State within the meaning assigned thereto by Section 277(1) of the Constitution of the Federal Republic of Nigeria 1979;

 

(b) the service of a body whether corporate or unincorporated established under a Federal or State Law;

 

(c) a company in which any of the Governments in the Federation has a controlling interest.

 

(2)    In the operation of this Decree, the appropriate authority

 

(a)    in respect of any office which was held for the purpose of any State, shall be the Military Governor of that State or any person authorised by him; and

 

(b)    in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Armed Forces Ruling Council.

 

(3)    In this Decree, any reference to the Constitution of the Federal Republic of Nigeria is a reference to that Constitution as affected by the Constitution (Suspension and Modification) Decree 1984."

 

Learned counsel for the appellant, relying on decisions of this court in Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982)12 S.C.l, at p.25 and Garba v. Federal Civil Service Commission (1988)1 NWLR (Pt. 71) 449, at p.477 urged us to hold that, as this is a statute which takes away a citizen's right of access to the courts, it ought to be construed narrowly and strictly. With that much I agree. But it is with his further submission that the principle was breached in this case that I find it difficult to agree. In saying so, I must advise myself that to construe a statute narrowly and strictly does not mean that the court should arbitrarily, in appropriate metaphor, wring a false meaning out of the language of the statute. Rather as applied to statutes generally, it means that the court should give a fair and natural interpretation to the statutory language as applied to the facts of the particular case and, not straining the meaning of the words unnecessarily but guided by certain principles, arrive at a reasonable construction. See Dyke v. Elliott. The Gauntlet (1872) L.R. 4 P.C. 184. Certain principles guide the court in such an exercise. If there should be any doubt, gap, duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or a deprivation of his right: see London and Country Commercial Properties Investrnents Ltd. v. Attorney-General (1953) 1 All E.R. 436, at p. 44l - 42. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction. Tuck and Sons v. Priester (1887)19 Q.B.D. 629 at p.638. If there is any doubt as to whether the person to be penalised or to suffer a loss of the right comes fairly and squarely within the plain words of the enactment, he should have the benefit of that doubt: I.R.C. v. Duke of Westminster (1936) A.C. 1 at p. 19. See on these Maxwell: On Interpretation of Statutes (12th Edn.) p.239. If after the above approach and the application of the above principles the person to be affected comes squarely and fairly within and is affected by the words of the statute, the court has no alternative but to apply it.

 

Applying the above approach and principles to the instant case, and construing the words of Decree No.17 of 1984 set out above accordingly, there can be no doubt that the appellant as the General Manager of the Authority is a public officer within the meaning of Section 4(1 )(a) and (b) of the Decree; nor that the Military Governor of Imo State is an "appropriate authority within section 4(2)(i); nor that he is the person empowered to dismiss an officer either personally or through appropriate functionaries, or organs of government, under powers vested in him by Section 1(1) of the Decree.

 

It has been argued on behalf of the appellant that the Military Governor or persons or organs of government acting on his behalf ought to have stated under what section of the Decree they acted. Learned counsel submitted that by analogy from the Land Use Act, it was necessary for the Military Governor to have shown clearly under what subsection, or section, he dealt with the appellant. Decisions of the court of Appeal in Obikoya & Sons Ltd. v. The Governor of Lagos State & Anor. (1987)1 NWLR (Pt. 50) 285 at pp. 402-403 and Lagos State Development & Property Corporation & 0rs. v. Foreign Finance Corporation (1987)1 NWLR (Pt. 50) 413, were cited in support. Learned counsel for the respondents argued that the same principle is not applicable to the two legislations.

 

I believe that an indubitable offshoot of the principle of construction that the courts must seek out the legislative intention and give effect to it is that every statute must be construed according to its tenor. If I am right, then cases decided under the Land Use Act cannot be useful guides in the interpretation of Decree No.17 of 1984. The Land Use Act, in section 50 defines and categorizes "public purposes" for which a Governor may revoke a right of occupancy. In the cases cited by counsel it was held that as the possessor of the right of occupancy had a right to petition or otherwise protest against the taking away of his right the Governor must state under which of the nine categories of public purpose he is acting. The tenor of Decree No. 17 of 1984 is different. It enables the Military Governor to dismiss, terminate, retire, etc. a public officer and goes further to oust the jurisdiction of the courts from adjudicating on "anything done or , purported to have been done pursuant to the Decree: see section 3(3) of the Decree which provides:

 

(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceedings have been or are instituted before, on or after the making of this Decree, the proceedings shall abate, be discharged and made void.

 

It is a drastic Decree. Most courts do not like it; but they are all bound to give effect to the legislative intention, if there is no escape route. It appears to me that the clear intention of the words " or purported to have been done" is that even where the reason for the Governor's action under the Decree does not fall squarely within any of paragraphs (a)-(d) of sub-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 intended that he was acting under the Decree, the ouster provision will apply. For this reason I do not see what useful purpose it will serve to insist that he ought to have specified under what paragraph of sub-section 1 of section 1 that he acted. For this and other reasons I shall mention annon, I agree with the learned counsel for the respondents that this was not necessary. The Decree contains no such requirement, and it would be wrong in principle to read into it a condition it did not provide for. Moreover, dismissal and other disciplinary actions against civil and public officers are not a normal function of a Military Governor and chief Executive of a State, but of such bodies as the Civil Service Commission and the heads of different parastatals. Decree No.17 of 1984 conferred a special and unusual power to a Military Governor to dismiss public officers. It was promulgated on the 27th day of June, 1984 and makes a special provision in section 1 (2)(a) and (b) whereby persons dismissed, terminated or retired by or at the direction of the Military Governor between December 31, 1983 and the date of promulgation of the Decree would be deemed to have been duly dealt with under the Decree. In the circumstance I believe it would be unreasonable, having regard to the tenor of the Decree, to hold that persons similarly dealt with since the promulgation of the Decree cannot be deemed to have dealt with under the Decree simply because no section of the Decree was quoted in the letter of dismissal. I do not so hold.

 

The learned counsel for the appellant tried to make a heavy weather of the fact that the Report of the Investigating Panel was not before the court. I note that both sides in their affidavit and counter-affidavit quoted freely from the Report. None disputed the correctness of what his/their adversary quoted. Be that as it may, to my mind, even if its production was desirable in order to give the court a complete picture of the facts, its omission is not fatal to the preliminary objection taken to the suit, for two reasons.

 

First under the Decree the Military Governor was not obliged to set up a Panel of Inquiry at all. All that was necessary was that he should be satisfied from materials placed before him that he should act. As it is so, it appears to me unreasonable to hold that the respondents' preliminary objection must fail because the Report was not in evidence. If, on other facts placed before the court, it could reach the decision that the Military Governor acted under the Decree, that would be enough.

 

Secondly at the stage that had been reached in the case, there was yet no inquiry as to whether or not the Military Governor acted properly. Indeed no court had the power to so inquire why its jurisdiction had been ousted. All it could inquire into was, as I have stated, whether or not its jurisdiction had in fact been ousted.

 

It is enough, in my view, that I limit my inquiry to whether the Military Governor had the power to dismiss the appellant and whether, on the facts proved in this case he dismissed the appellant pursuant to that power. The obvious answer to the first questions is that he had the power to dismiss the appellant under the Decree. On the second question, it was pleaded in paragraph 21 of the statement of defence that the Military Governor dismissed the appellant pursuant to his powert under Decree No.17 of 1984. There was no reply to that point. Again in paragraphs 11 and 12 of the affidavit in support of the motion it was deposed that he acted in exercise of his powers under the Decree. There was nothing to the contrary from the appellant. In view of what I have said about trial under order XL rule 2 of the High Court Rules of Eastern Nigeria, applicable in Imo State, it appears to me inevitable that any court must find that the Military Governor acted under Decree No.17 of 1984 and that he directed the dismissal of the appellant. From the contents of Exhibits B, C, D and E, particularly Exhibit E, it appears that pursuant to his powers and under Decree No.17 of 1984, the Military Governor of Imo State decided to dismiss the appellant, Mr. 0. C. Nwosu, from the public service of the State to facilitate improvements in the organization and operation of the Authority-to prevent it from imminent collapse, and directed accordingly. That was carried out. The admission of the appellant, a man who had the ultimate responsibility in the 1st respondent Authority, in his counter-affidavit, that motor vehicles and other machinery of the Authority had been grounded due to minor repairs is a poor testimony of his sense of responsibility. These shortcomings entitled the Military Governor to dismiss him under section 1(a) and (d) of the Decree. It was not necessary to refer to these sub-sections in the letter directing his dismissal. As it was so, the jurisdiction of the High Court of Imo State to entertain the suit has been ousted. The courts below were right to have said so.

 

Therefore, for all I have said above, the appeal fails and is hereby dismissed. I assess and award costs against the appellant in the sum of N500.00

 

 

Judgment delivered by 

Obaseki. AG. C.J.N.

 

I have had the advantage of a preview of the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C., and find that the opinions on all the issues expressed therein accord with mine. The appeal fails and is hereby dismissed with N500.00 costs to the respondents.

 

The main issue in this appeal is whether the appellant having been dismissed by the Military Governor in exercise of his powers under Decree No. 17 of 1984 titled Public Officers (Special Provisions) Decree 1984 section 1(1 )(d), he can sue the defendants for the reliefs claimed herein. Section 3(3) of the Decree deprives the plaintiff/appellant of any right to sue as it provides that  no civil proceedings shall or be instituted in any court on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceedings have been or are being instituted before or after the coming into force of this Decree the proceedings shall abate or be discharged and made void.

 

The appellant therefore has no cause of action and the court has no jurisdiction to entertain the claim of the plaintiff/appellant. It would have been otherwise if the Military Governor had not authorised his dismissal. See Wilson v. Attorney-General of Bendel State (1985)1 NWLR (Pt. 4) 572; Garba v. Fedeial Civil Service Commission and Anor. (1988)1 NWLR (Pt. 71)449.

 

 

Judgment delivered by 

Belgore. J.S.C

 

The issue of jurisdiction is always fundamental and it is only prudent it be resolved first, otherwise the court that ignores that issue might finally find its going to the real trial of all issues a mere adventure. Jurisdiction is the power of the court to adjudicate in the subject-matter and it is either given by the Constitution or a specific statute on the subject in issue. To avoid unnecessarily wasting time of the Court, it is therefore desirable to ascertain first if there is jurisdiction by the Court to try the issue.

 

Order XL r 2 High Court Rules of Imo State is a rule designed to stop courts going on a wild goose chase. Jurisdiction should be tried first and the mode of trial, conveniently and most invariably is by way of affidavit evidence. When a preliminary objection is supported by an affidavit challenging jurisdiction of the court and there is counter affidavit and looking at parties pleadings along with the affidavits, the court is satisfied it has no jurisdiction to try the matter either because the jurisdiction if not vested by the Constitution or because the statute on the subject in issue does not confer jurisdiction in that court, the matter should there and then be struck out. Wilson v. AG. Bendel(1985) I N.W.L.R. (Pt. 4)572; Savannah Bank Ltd. v. Pan Atlantic (1987)1 N.W.L.R. (Pt. 49) 212; Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. (Pt. 5)17. Similarly, as in military regimes, decrees of the Federal Military Government clearly ousts the court's jurisdiction, there is no dancing round the issue to found jurisdiction that has been taken away. Lawyers trained and groomed under the notion of civil liberty frown on ouster provisions in any act of parliament; so do the judges of similar background. But it must be remembered that Armed Forces Ruling Council is not a parliament, neither does it pretend to be one. We have lived with their Decrees (whether by Supreme Military Council or Armed Forces Ruling Council, in fact nomenclature is not relevant) for long row that there should be no doubt as to the meaning of their ouster provisions. Their Decrees, they always emphasise for avoidance of doubt, are supreme even to the constitution. It is for that purpose that legal practice will attract more confidence if administrative avenues are pursued rather than journey of discovery inherent in court action in such matters.

 

I have read with absolute agreement, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. and agree that this appeal lacks merit. I also dismiss it with N500.00 costs to the respondent against the appellant.

 

 

Judgment delivered by 

Agbaje. J.S.C.

 

I have had the privilege of reading in draft the lead judgment of my learned brother Nnaemeka-Agu, J.S.C. I agree with him that the appeal must fail.

 

The plaintiff, Mr. Osita Nwosu, sued the defendants, Imo State Environmental Sanitation and 4 others in an Imo State High Court claiming as per paragraph 16 of his statement of claim dated 16/1/86 as follows:-

 

(i)    an order of the Court that the conduct of the defendants jointly and severally leading to the dismissal of the plaintiff from the civil service is illegal, wrongful, unconstitutional, null and void and of no effect.

 

(ii)    an order of the Court re-instating the plaintiff to the post of General Manager/Chief Executive of the Imo State Environmental Sanitation Authority.

 

(iii)   and order of the Court that the plaintiff be paid arrears of his salaries from June, 1985 till date of judgments in this suit.

 

By paragraph 21 of the statement of defence of all the defendants, dated 17/2/86 it was pleaded as follows:-

 

The defendants will further plead at the trial, lack of jurisdiction on the part of this Honourable Court to try the case in view of the Public Officers (Special Provisions) Decree 1984 (Decree No. 17 of 1984 by virtue of which the plaintiff cannot maintain action on breach of natural justice.

 

There was an application by the plaintiff dated 18/3/86 to amend his statement of claim. The application came on for hearing on 1/4/86 and was struck out for irregularity. On that day the learned trial Judge indicated that he would take arguments on the issue of jurisdiction raised in the statement of defence of the defendants on 9/5/86.

 

In the meantime the defendants filed a motion dated 23/4/86 in the following terms:-

 

Motion on Notice Order 40, Rule 2

 

TAKE NOTICE that this Honourable Court will be moved on Friday the 9th day of May, 1986 at the hour of 9 O'clock in the forenoon or soon thereafter as Defendants/Applicants or Counsel on their behalf may be heard for an order of court striking out the suit herein same on the grounds that the court lacks jurisdiction to entertain same since the court's jurisdiction has been specifically ousted by Decree No.17 of 1984 and other laws. And such other order(s) as the court may deem fit in the circumstance. Dated at Owerrie the 23rd day of April, 1986.

 

There was an affidavit sworn by one Christopher Ugwunna Ohaja Acting General Manager Imo State Environmental Sanitation Authority in support of the application. Exhibited in the affidavit were certain documents. The motion was brought under Order 40 Rule 2 of the Rules of Court applicable in the High Court of Imo State which says:-

 

(1)    The trial of every suit shall take place before the Court and the Court shall determine all questions of fact or law, and partly of fact and partly of law, arising in such suit.

 

(2)    If the Court considers it conducive to justice, it may direct that any suit may be tried before any other issue or issues.

 

There was a counter affidavit by the plaintiff.

 

For his part the plaintiff brought another application dated 3rd April, 1986 to amend his statement of claim in several particulars.

The proposed amendments I need to refer to for the present purposes are the following:

 

A new paragraph 17 to replace original paragraph 16 and to read

 

Wherefore the plaintiff claims against the defendants jointly and severally.

 

(i)    A declaration that the appointment of the plaintiff as the General Manager Imo State Environmental Sanitation Authority is still valid and subsisting.

 

(ii)    An order of court on the 1St, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him from June, 1985 till date with immediate effect.

 

(iii)    An order of Court setting aside the continuing compulsory leave imposed on the plaintiff by the 3rd defendant as being wrongful and ultra vires the powers of the 3rd defendant.

 

(iv)   An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever, directly or indirectly, preventing the plaintiff from resuming his duty as General Manager Imo State Environment Sanitation Authority.

 

It does not appear that the issue of jurisdiction was taken on 9/5/86 as indicated by the trial Judge on 1/4/86. It will appear that the plaintiff's application to amend his statement of claim and the defendants' application to dismiss the plaintiff's application to amend was granted and the motion to dismiss suit was adjourned till 17/9/86.

 

I must pause here to say that an amendment takes effect not from the date when the amendment is made but from the date of the original document which it amends. As regards pleadings once they are amended what stood before the amendment is no longer material before the court and no longer defines the issue to be tried. See Sneade v. Wotherton (1904)1 K.B. 295 at 297 and Warner v. Sampson (1959)1 Q.B.297 at 321. So in my judgment the defendants' motion to dismiss the plaintiff's claim for want of jurisdiction must be taken as an objection not to the original claim but to the claim as subsequently amended in the manner I have just indicated.

 

The motion to dismiss plaintiff's suit duly came on on 17/9/86 and was taken that day.

 

Before I go further I must again pause to observe that the learned trial Judge by taking the motion was in essence trying as a preliminary issue the issues as to the jurisdiction of the trial court to entertain the plaintiff's claims raised by paragraph 21 of the defendant's statement of defence which I have copied earlier on in this judgment. It is therefore only right to bear in mind the test to be applied when the question involved is whether or not a preliminary issue should be ordered. In this regard Denning, M. R. said in Carl-Zeiss-Stiftung v. Herbert Smith & Co. (a firm) and Another (1968) 2 All E.R. 1002 at 1004:-

 

I know that it has been said on one or two occasions that a preliminary issue should be ordered only when, whichever way it is decided, it is conclusive of the whole matter. That was said by Lord Evershed, M.R., in Windsor Refrigerator Co. Ltd. v. Branch Nominees, Ltd. (1); and by Harman, L.J. in Yeoman Credit, Ltd. v. Latter (2). 1 do not think that that is correct. The true rule was stated by Romer, L.J. in Everett v. Ribbands (3):

 

Where there is a point of law which, if decided in one way, is going to be decisive of the litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards." I have always understood such to be the practice. I quite agree that, in many cases, the facts and law are so mixed up that it is very undesirable to have a preliminary issue. I always like to know the facts before deciding the law;

 

So in my judgment unless all the facts to which the law is to be applied are known, it will not be proper to order a preliminary issue.

 

I must now reproduce the relevant sections of Decree No. 17 of 1984 upon which the defendants rely for their contention that the trial court has no jurisdiction to entertain the plaintiff's action:

 

THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:-

 

1-

 

(1)    Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that

(a)   it is necessary to do so in order to facilitate improvements in the organisation of the department or service to which a public officer belongs;

 

(b)   by reason of age or ill health or due to any other cause a public officer has been inefficient in the performance of his duties: or

 

(c)    the public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or

(d)   the general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest, the appropriate authority may at any time after 31st December, 1983-

 

(i)    dismiss or remove the public officer summarily from his office; or

 

(ii)    retire or require the public officer to compulsorily retire from the relevant public service.

 

(2)    For the avoidance of doubt, it is hereby declared that any act or thing done at any time between 31st December, 1983 and the making of this Decree by the appropriate authority in respect of-

 

(a)    the dismissal, removal from office or compulsory retirement of any public officer; or

 

(b)   the conduct of any inquiry into any aspect of the exercise by a public officer of his duties; shall be deemed to have been done pursuant to this Decree.

2-

 

(1)    Where any public officer is dismissed, removed or retired compulsorily from his office pursuant to section 1 of this Decree, the appropriate authority shall direct-

 

(a)    whether appropriate retirement benefits are to be paid; or 

(b)    whether those benefits shall be forfeited.

 

(2)    In this section, the reference to appropriate retirement benefits is a reference to any benefits payable under any enactment or law of the Federation or of a State.

 

3-

 

(1)    For the purposes of this Decree, the operation of the provisions of section 159 and 190 of the Constitution of the Federal Republic of Nigeria, 1979, which protect the pension rights of persons in the public service of the Federation or of a State respectively are hereby excluded.

 

(2)    The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria, 1979) relating to the matter to which the Decree applies or relating to the appointment, benefits, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.

 

(3)    No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceedings have been or are instituted before, on or after the making this Decree, the proceedings shall abate, be discharged and made void.

 

(4)    Chapter IV of the Constitution of the Federal Republic of Nigeria 1979 is hereby suspended for the purposes of this Decree and the question whether any provision thereof has been, is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be inquired into in any court of law.

 

4-

 

(1)    In this decree, 'public officer' means any person who holds or has held any office on or after 31st December 1983 in-

 

(a)    the public service of the Federation or of a State within the meaning assigned thereto by section 277(1) of the Constitution of the Federal Republic of Nigeria 1979;

 

(b)    the service of a body whether corporate or unincorporated established under a Federal or State law;

 

(c)    a company in which any of the Governments in the Federation has a controlling interest.

 

(2)    In the operation of this Decree, the appropriate authority

(i)     in respect of any office which was held for the purposes of any State, shall be the Military Governor of that State or any person authorised by him; and

 

(ii)    in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council.

 

(3)    In this Decree, any reference to the Constitution of the Federal Republic of Nigeria is a reference to that Constitution as affected by the Constitution (Suspension and Modification) Decree 1984.

5-

 

This Decree may be cited as the Public Officers (Special Provisions) Decree, 1984 and shall be deemed to have come into force on 31st December, 1983.

MADE at Lagos this 27th day of June 1984.

 

This decree contains a clause ousting the jurisdiction of the court in the matters to which it relates. The canon of interpretation applicable to it is the same as that applicable to special statutes or statutes which seek to deprive one of one's vested proprietary rights. In such statutes the principle upon which the courts have acted from time immemorial is to construe "fortissime contra proferentes" the provision of the statutes in question. See Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982)12 S.C.l at 12.

 

The following passages in the judgment of Coker, J.S.C., in Nigerian Ports Authority v. Panalpina World Transport Nig. Ltd. & Ors. (1974)1 NMLR 82 at 95 is relevant when a statute ousting the jurisdiction of the court is under consideration:-

 

Concerning the effect of section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.28 of 1970, the learned trial Judge observed in the course of his judgment as follows:

 

While I think that these provisions of the Supremacy and Enforcement of Powers Decree No.28 of 1970 completely ousts the jurisdiction of the court in matters within the contemplation of a decree, I do not consider that matters which are not in contemplation of the decree in question can enjoy the protection which the Supremacy and Enforcement of Powers Decree gives. In othe words I am saying that if by a decree a tribunal is set up the decisions of which are stated under the decree setting it up to be final; and the tribunal proceeds to take a decision completely outside or in excess of its jurisdiction it is my view that this court is in cases properly within its territorial jurisdiction, to make a declaration on it.

 

We are in agreement with the statement of the law as expressed by the learned trial Judge on this point. (Italics mine)

 

And with particular reference to Decree No.17 of 1984 this court has said in Garba v. Federal Civil Service Commission and Anor. (1988)1 NWLR (Pt. 71) 449 at 467 as per the lead judgment of Eso, J.S.C. in which the other Justices of the Supreme Court concurred:-

 

Sub-section (3) ousts the jurisdiction of the Court on account of or in respect of any act, any matter or anything done by any person (which includes the Respondents). But such act must have been done under the Decree. And what are these acts that could be done under the Decree? They are, again - 

the appointment 

benefit;

dismissal; and 

discipline

 

of a public officer (which includes the Appellant). (Italics mine)

 

I need only to add that the acts in question must have been done by the appropriate authority as defined in section 4(2) of the Decree.

 

It is my view that due regard should be given to the canon of construction I have mentioned earlier on in this judgment as being applicable to the Decree now in question namely it is to be construed '' fortissime contra  proferentes" that is to say it should be construed strictly against any one claiming its benefit. So the mere fact that the instrument by which an act or thing or under the Decree is not conclusive when any question arises as whether the act or thing or matter is done under the Decree. It still behooves the court to find out if the act or thing or matter done is within the contemplation of the Decree, before it can enjoy the immunity against the court proceedings granted by the Decree. By the same token I do not think that the fact that the instrument in question does not say on the face of it that the act or thing or matter is done under the Decree ipso facto deprives it of the benefit of immunity against court proceedings. The act or thing or matter will nevertheless enjoy this immunity if it is purported to be done under the Decree.

This now takes me to the construction of the expression "or purported to be done" in section 3(3) of the Decree.

 

I am of the view that the definition of the word "purports" given by Lord Denning, M.R., in Joseph v. Joseph (1966) 3 All E.R. 486 at 490 when considering the meaning to be attached to that word used in Section 38(1) of the Landlord & Tenant Act 1954 (U.K.) is apposite here. Re said "the word purports" as used in sub-section (1) and sub-section 2 of this section does not mean "professes". It means has the effect of. "Section 38(1) of the U.K. Act provides that an agreement to surrender is "void in so far as it purports to preclude the tenant from making an application or request" for a new tenancy.

 

In the case before him Lord Denning, M.R., held that the argument to surrender in question was void because it had the effect of precluding the tenant from applying for a new tenancy.

 

So in my judgment if the instrument by which an appropriate authority does an act or matter or thing, does not say on the face of it that is done under the Decree, but it has the effect of bringing the act or thing or matter done within the contemplation of the Decree, then the act, thing or matter is purported to be done under the Decree.

 

I have stated the law to be applied as I conceived it. It remains now for me to state the facts to which it is to be applied.

 

The preliminary issue as I have said above was tried on affidavit evidence. Before I state the facts I must set down the issues for determination in this appeal.

 

According to the appellant, the plaintiff, the issues are as follows:

 

(1)    The claim reproduced in the lead judgment of the Court of Appeal (p.243) as being the claim before the court which was the amended claim having (sic) different from the claim reproduced by the trial Judge (p. 158-159) which was the original claim on p.9 was the Court of Appeal right to sustain a ruling based on a statement of claim which was no longer before the court, and which materially differed from what was actually before the court?

 

(2)    Considering that the purported letter of dismissal was not signed by the Military Governor, nor by any person duly authorised by him so to do, can the appellant be said to have been dismissed by any appropriate authority as required by Decree No.17 of 1984?

 

(3)    The letter of dismissal having not stated which arm of section 1(1) of Decree 17 applied to the appellant, can the purported act of dismissal be properly said to have been done under Decree No.17 of 1984?

 

(4)    Where act of dismissal is in issue would Decree No.17 of 1984 be properly invoked prior to a finding of the existence of the fact of dismissal and can this fact be resolved without hearing evidence?

 

(5)    Can the purported dismissal of the appellant in a post he vacated in 1981 in the civil service be properly construed as a dismissal in his present position in a parastatal considering that section 277 of 1979 constitution makes a clear distinction between public service and civil service?

 

(6)    Was the trial Judge right to have decided the issue before the court, i.e. whether there was a dismissal or not, in order to decide whether Decree No.17 of 1984 applied or not.

 

According to the respondents the defendants the issues are as follows:-

 

(1)    Was the appellant dismissed by the Military Governor of Imo State by virtue of the powers conferred on the Military Governor, as the appropriate authority, by the Public Officers (Special Provisions) Decree No.17 of 1984.

 

(2)    Alternatively, can it be said that the appellant was dismissed by the Civil Service Commission of Imo State.

 

(3)    Whether the decision of the trial court which was affirmed by the Court of Appeal was based on a Statement of Claim that was no longer before the Court.

 

(4)    Who was actually dismissed, the Senior Environmental Planning Officer, or the General Manager, Imo State Environmental Sanitation Authority or Mr. O. C. Nwosu?

 

It appears to me that the issues posed for determination by the defendants, the respondents, are not radically different or for that matter, different from those raised by the plaintiff. I will therefore stick to the issues for determination as stated in the brief of arguments for the plaintiff/appellant.

 

I can now go back to the ascertaining of the facts from the affidavit evidence. Since issues (4) and (6) in the appellant's brief raise, in my view, the question as to whether it was proper for the learned trial Judge to have ordered the preliminary issue before the actual trial of the plaintiff action, I must bear it in mind in my endeavour to glean the facts from the affidavits including the documents exhibited in the affidavit that where a trial court is faced with irreconcilably conflicting affidavits, oral evidence should be taken to determine the truth. See Pharmacists Board v. Adebesin (1978) 5 S.C.43 and Falobi v. Falobi (1976) 9-10 S.C.1; and Eboh v. Oki (1974) S.C. 179. In the instant case no oral evidence was taken. That being so I am of the firm view that only admitted facts or facts deemed to be admitted in the affidavits could properly form the bases of the decision in the preliminary issue. It is on these facts alone that I will base my reason as to (1) whether the preliminary issue was properly ordered by the trial court and if so (2) whether the trial court's decision to accede to the prayer of the defendant to dismiss the plaintiff's action for want of jurisdiction, which decision was affirmed by the Court of appeal, Enugu Division was right or otherwise having regard, of course only, to the issues raised in this appeal.

 

As regards facts deemed to be admitted in the affidavit I have borne it in mind that paragraphs of affidavit not denied are deemed to be admitted. As regards the documents exhibited in the affidavit, S.E.S. Newspaper v. Anwara (1975) 9-11 S.C. 55 is authority for the proposition that a document can properly be tendered by referring to it specifically in an affidavit. There is of course the decision in Adejumo v. Governor of Lagos State (1970)1 All NLR. 183 to the effect that documents in an affidavit must not be objected to until the substantive action comes up for hearing. In the appeal before us nothing turns on the objection to the admissibility of any of the documents exhibited in the affidavit. The main issue in this appeal turns on the point whether on the facts disclosed in the affidavits and the documents exhibited in them, the preliminary issue was properly ordered or not. and, if so whether the defendants' preliminary objection was properly upheld.

 

The admitted facts or facts deemed to be admitted in the affidavits appear to me to be as follows:

 

As regards the affidavit of Christopher Ugwunna Ohaja in support of the application of the defendants to dismiss the plaintiff's action for want of jurisdiction. they are:

 

(3)    That the General Manager, Imo State Environmental Sanitation Authority is by law appointed by the Commissioner with the approval of the Governor by virtue of Imo State Environmental Sanitation Authority (Amendment) Law No. I of 1981.

 

(4)    That the plaintiff/Respondent was duly appointed the General manager. Environmental Sanitation Authority, Imo State. in accordance with the law and by virtue of letter dated 2nd February, 1982. This letter is exhibited and marked Exh. A

 

(5)    That following a petition dated 14th December, 1984 which is exhibited and marked Exh. 'B' the Military Governor directed an Internal Management Audit Panel into the affairs of the Environmental Sanitation Authority by letters SG1/S.0024/2/II/227 of 1st February, 1985 which letter is exhibited and marked Exh. 'C'.

 

(6)    Following the directive in Exh. 'C' the Commissioner for Local Governor set up an Internal Audit Management Panel into the affairs of the Environmental Sanitation Authority. appointed members of the Panel and gave them the terms of reference-vide letter MLG/COM/S.290/142 of 13th February. 1985 which is exhibited and marked Exh. 'D'. The panel sat. took evidence and submitted its report to the Commissioner for Local Government who then forwarded the Report to the Military Governor.

 

(7)    In paragraph 2.1.2 of the Report the panel found a~ follows: 'On the imminent collapse of the Authority. the Panel is satisfied that evidence abound and that if nothing concrete and meaningful was done, the Authority would undoubtedly collapse.'

 

(8)    The Governor studied the Report and by his letter No. GH/PS/ S.263/294 of 9th May 1985 directed that the Plaintiff/Respondent be dismissed. The said letter is exhibited and marked Exh. 'E'.

 

As regards Exh. 'E', I need only to reproduce for present purposes the following portions thereof:-

 

Exhibit E

9th May, 1985

Our Ref CH/PS.263/294:

The Commissioner,

Ministry of Local Government

Owerri.

 

 

Dear Commissioner

 

Environmental Sanitation Authority Management Audit Findings

 

I am directed to refer to your letter to the Military Governor on the above subject and to convey the Military Governor on the above subject and to convey the Military Governor's directives as follows:

 

(a)    The Auditor General should investigate how the total sum of N5.3m which the Environmental Sanitation Authority received was expended. The report should reach you in 3 weeks latest.

(b)    that Mr. O. C. Nwosu be dismissed;

 

(2)    The Military Governor agrees:

(a)    that urgent steps be taken to reorganise the Authority along the line of the Exco Conclusions;

 

Yours respectfully 

Sgd. B.C. AGUNANNE 

for: Principal Secretary.

 

Exhibit F says as follows:-

 

Sir,

 

Dismissal from the Service of Imo State Government: Mr. O. C. Nwosu, Senior Environmental Planning Officer GL. 10.

 

I am directed to inform you that, by an order of the Military Governor, you have been dismissed from the service of the Imo State Governmental Sanitation Authority Management Audit Findings.

I have the honour to be Sir,

Your obedient Servant

Sg. Y.O. ANOJENWERE,

For Secretary.

 

As regards the counter-affidavit of the plaintiff there appears to me to be no dispute about the following facts deposed to by him there:

 

(4)    That I was never involved in any inquiry affecting the Ministry of Health.

 

(5)    That my name was gazetted in the Imo State Gazette, No.32 Volume 10 of 5th December, 1985 as having been dismissed in the Ministry of Health.

 

(6)    That the Ministry of Health has nothing to do with the Commissioner for Local Government.

 

(7)    That I was a public officer on Grade Level 15 as General Manager of the Environmental Sanitation Authority.

 

(8)    That the Civil Service Commission of Imo State has no authority over the employees of the statutory corporation.

 

(10) That the panel of Inquiry did not find me responsible for the quotation cited in paragraph 8 of the affidavit of the respondents, in support of the motion, nor did the deponent complete the paragraph which has a following sentence thus:

 

For example most of plants of Authority have broken down with minor faults that could easily be repaired.

 

To the above facts must be added the following averments in plaintiff's statement of claim upon which his action was based:-

 

para. (1) The plaintiff at all times material to this incident is a Civil Servant and the General Manager/Chief Executive of the 1 St defendant and the plaintiff resides at plot 40, Road 3, Uratta Housing Estate Owerri. The plaintiffs appointment into the civil service took effect from May, 1965 and the plaintiff shall at the trial rely on a letter of appointment dated 1/5/65.

 

para. (3) About the month of February 1982 the plaintiff as per the letter, dated 2/2/82 was made the General Manager/Chief Executive of the 1st defendant and the said letter of appointment shall be founded upon at the trial of this case.  (Italics mine).

 

I will now go on to the consideration of the issues raised for determination by the plaintiff/appellant in his brief of arguments. I take issue one which can be disposed of very quickly. It appears to me from the ruling of the learned trial Judge on the defendant's application to dismiss the plaintiff's action for want of jurisdiction that what was present to his mind was the claim in the original statement of claim and not that in the amended statement of claim. From what I have said earlier on in this judgment this is evidently wrong for the original statement of claim no longer defined the claim before the court. It was the amended statement of claim which did.

 

Whether this error has occasioned a miscarriage remains to be seen after I shall have considered the other issues raised in this appeal.

 

I now take issue 2 concerning the letter Exh. F., headed dismissal from the service of Imo State Government. It is the true the letter was not signed by the Military Governor. But it says in unequivocal language that the order to dismiss the plaintiff was that of the Military Governor. In other words it says the decision to dismiss the plaintiff/appellant was taken by the Military Governor himself. It is not in dispute that the Military Governor is the appropriate authority under Decree No.17 to dismiss a public officer having regard to section 4(2) of the Decree.

 

I think counsel for the plaintiff/appellant missed the defendant's point about Exh. F. It was not the defendants' case that the plaintiff was dismissed by that exhibit. Their case was that the defendant's dismissal was communicated to him by the exhibit. In this regard I refer again to paragraph 10 of the affidavit of Christopher Ugwunna Ohaja Esq. in support of the defendants' application to dismiss the plaintiff's action for want of jurisdiction. For ease of reference I reproduce it again below:

 

(10) The dismissal was duly communicated to the plaintiff/respondent by letter SS.96/T. 117 of 5th June 1985 which letter is exhibited and marked Exh. 'F'.

 

It was the defendants' case that the order of the Military Governor to dismiss the plaintiff was contained in Exh. E, a letter from the Government House to the Commissioner, Ministry of Local Government, Owerri. See again paragraph 9 of the affidavit of Mr. Ohaja which says:

 

(9) The Governor studied the Report and by his letter No. GH/PS/ 5.263/294 of 9th May, 1985 directed that the plaintiff/respondent be dismissed. The said letter is exhibited and marked Exh. 'E'.

 

There is the fact disclosed in the plaintiff's counter-affidavit that his name was gazetted in the Imo State Gazette No.32, Volume 10 of 5th December, 1985 as having been dismissed in the Ministry of Health. With that fact it appears to me that Exh. F the letter of notification of the plaintiff's dismissal to him pales into insignificance. The averment in the plaintiff's counter affidavit is binding on him. I do not think in the circumstance it is necessary to require the defendants to produce the gazette. I say this because of Section 11 2(a)(i) of the Evidence Act which says:

 

(112) The following public documents may be proved as follows:

 

(a)    all proclamations, Acts of State, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any Region thereof or of any local or native authority-

 

(i)     which appear in the official Gazette of Nigeria or of a Region, by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.

 

The plaintiff has not attacked the contents of Exh. E in this case on any ground, in the trial court or the Court of Appeal or even before us. So the motion to dismiss the plaintiff's action can in my view properly be decided on Exh. E and the gazette the plaintiff alluded to in his counter affidavit and the other admitted facts or facts deemed to be admitted in this case.

 

It appears therefore to me that the facts on which the motion to dismiss based as it were on affidavit evidence and the pleading could properly have been decided were as follows:-

 

(1)    The plaintiff at all times material to this incident was a civil servant and the General Manager/Chief Executive of the 1st defendant.

 

(2)    That the General Manager of Imo State Environmental Sanitation Authority is by law appointed by the Commissioner with the approval of the Governor by virtue of Imo State Environmental Sanitation Authority (Amendment) Law No.1 of 1981.

 

(3)    That following a petition dated 14th December, 1984 the Military Governor Imo State ordered an Inquiry into the affairs of the Environmental Sanitation Authority.

 

(4)    Following the directive the Commissioner for Local Government set up an Internal Audit Management Panel to investigate the affairs of the Environmental Sanitation Authority.

 

(5)    The panel sat, took evidence and submitted its report to the Commissioner for Local Government who then forwarded it to the Military Governor.

 

(6)    The report inter alia contained the following:-

 

(i)     On the imminent collapse of the Authority, the Panel was satisfied that evidence, abounded and that if nothing concrete and meaningful was done, the Authority would undoubtedly collapse.

 

(ii)    (Supplied by the plaintiff)-"For example most of plants of Authority have broken down with minor faults that could easily be repaired."

 

(7)    There is nothing to show that the panel of enquiry did find the plaintiff guilty of any wrong doing.

 

(8)    The Military Governor studied the report and directed that the plaintiff be dismissed by name and that urgent steps be taken to reorganise the authority along the lines of his directives.

 

(9)    That the plaintiff was subsequently dismissed by name but the gazette publication carrying the dismissal described him as being in the Ministry of Health. 

 

From the above facts, it appears clear to me that:

 

(1)    The plaintiff was a public officer within Section 4(1) of Decree No.17 of 1984;

 

(2)    The Imo State Environmental Sanitation Authority of which the plaintiff was at all material times its General Manager/Chief Executive was in danger of imminent collapse;

 

(3)    In consequence of (2) it was decided by the Military Governor of Imo State to reorganise the Authority;

 

(4)    Because of (2) and (3) above it was ordered by the Military Governor that the plaintiff be dismissed by name;

 

(5)    All the acts relevant to this case took place after 31st December, 1983.

 

I have said earlier on in this judgment that it is not necessary for a Military Governor to say expressly when doing an act that it was done under Decree 17 of 1984 before the provisions of the Decree can apply to the Act provided what is done is within the contemplation of the Decree.

 

In the instant case, there was urgent need to reorganise the Imo State Environmental Authority the 1st defendant which was on the brink of collapse. It only stands to reason that the Chief executive of that authority which had piloted it to that sorry state must go in order to facilitate improvements in the Organisation of the Authority. This is regardless of the fact that the official has not been proved guilty of fraud or other wrong doing in his management of the officers (sic) of the Authority. The mere fact that the Authority was moribund was sufficient evidence that the general conduct of its Chief Executive in relation to the performance of his duties there had been such that his further or continuous employment in that service would not be in the interest of the Authority. This is all the more so when it is remembered that the authority came to this condition because, inter alia, even as pointed out in the plaintiff's counter-affidavit, minor matters, like minor repairs to machineries, were not attended to. This to my mind is the implication of the order of the Military Governor to dismiss the plaintiff in the circumstances of this case without the Military Governor saying so expressly.

 

In my judgment therefore the dismissal of the Chief Executive of the 1st defendant, the plaintiff, was within the contemplation of Decree 17 of 1984. It comes squarely within section 1(1 )(a) and/or 1(1 )(d) of the Decree.

 

The conclusion I reach is that on the admitted facts or facts deemed to be admitted in the matter now before us on appeal a decision can be arrived at as to whether or not the act complained of its within the contemplation of the Decree.

 

The plaintiff on the admitted facts was dismissed, in my judgment, by the Military Governor and not by the 5th defendant, the Imo State Civil Service Commission. The plaintiff was dismissed by name and not just by reference to the office he held. The plaintiff by paragraph 1 of his Statement of Claim pleaded that all times material to this case he was a civil servant and the General Manager of the 1st defendant. He pleaded that he was a civil servant and was then made the General Manager of the 1St defendant. His pleading showed he was combining both offices. His dismissal from the services of Imo State Government must necessarily relate to both posts. It does not matter that the notice of dismissal in the gazette described him as being in the Ministry of Health where he was when he was appointed to an office in the 1st defendant without being relieved of his post as a Civil Servant.

 

The point whether the plaintiff was heard or not by the panel which investigated the affairs of the 1st defendant raises issues relating to Fundamental Human Rights which have been suspended by section 3(4) of the Decree as regards the matters to which Decree 17 of 1984 relate. So that ground cannot in my judgment be valid for questioning any thing done or purported to be done under the Decree. The dismissal of the plaintiff may be harsh because as I have said above it does not appear the panel found him guilty of fraud or any other wrong doing, besides a general dereliction of duties by implication. Perhaps his retirement from the public service might have been adequate. However, once the act was within the contemplation of the Decree, as I have found it was, the jurisdiction of the trial court to question any aspect of the act was, in my view, on the authorities ousted.

 

The plaintiff was the Chief Executive of the 1st defendant dismissed by the Military Governor in the circumstances I have outlined in this judgment. Having regard to these circumstances I am satisfied that the plaintiff's dismissal was purported to be done under Decree No.17 of 1984 although the Military Governor did not expressly say he was doing the act under the Decree.

 

In sum, all the facts of this case including the dismissal of the plaintiff have the effect of bringing the dismissal within the contemplation of the Decree. Once this is the case I am of the view that the jurisdiction of the trial court to entertain either original claim or the amended claim of the plaintiff has been ousted. So the failure of the trial Judge to discountenance the original claim or of his duty to countenance only the amended claim could not have occasioned a miscarriage of justice. In my judgment the point taken by counsel for the plaintiff in this regard is well taken. But because of what I have just said I cannot allow the plaintiff's appeal because of the error of the trial court in this regard.

 

I am satisfied having regard too to what I have hitherto said that the preliminary issue was properly ordered by the trial court in this case because (1) the point of law raised if, decided one way was going to be decisive of the litigation and (2) the facts to which the law were to be applied were all discernable from the matters not in controversy in the affidavits before the trial court in this case.

 

It is for the above reasons that I agree to the decision of my learned brother Nnaemeka-Agu J.S.C. dismissing the appeal of the plaintiff/appellant. I too award the defendants/respondents N500.00 costs against the plaintiff/appellant.

 

 

Judgement delivered  by

Wali, J.S.C

 

I have had a preview of the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., and I agree with his reasoning and conclusions.

 

The appellant was a Senior Environmental Planning Officer in the Ministry of Health Owerri, Imo State. Following the creation of the Imo State Environmental Sanitation Authority in 1980, the appellant, on his own application was interviewed, selected and seconded to the Authority in 1981 as its General Manager.

 

In 1985, as a result of a written petition alleging corrupt practices in the Authority, the Commissioner for Local Government on the directive given by the Military Governor, set up a 5 man Ministerial Panel to investigate the allegation and the appellant was sent compulsorily on his annual leave. When the leave expired, he was not allowed to resume duty and the compulsory leave was twice extended.

 

The Ministerial Panel sat, took evidence from all persons concerned, the appellant inclusive, and submitted its report and recommendations to the Commissioner for Local Government who forwarded the same to the Military Governor. And the Military Governor, after studying the report, directed his Principal Private Secretary to convey his approval of the dismissal of the appellant to the Commissioner for Local Government which the Principal Secretary did-see Exhibit "E". Exhibit 'E" was written on 9th May, 1985. As a result of Exhibit "E", the contents of which were communicated to the Irno Sate Civil Service Commission, the Commission

addressed Exhibit "F" to the appellant in which he was informed that "You have been dismissed from the service of the Imo State Government with immediate effect following the Environmental Sanitation authority Audit findings." Exhibit "F" was written on 5th June, 1985 and was addressed to the appellant through the Permanent Secretary, Ministry of Health. Despite efforts by the appellant to evade service of the contents of Exhibit "F" on him, he was however finally served.

 

The main issue raised and canvassed in this appeal is the dismissal of the appellant from the Imo State Service under Decree No. 17 of 1984. The appellant's argument is that since the letter of his dismissal Exhibit "F" was not personally signed by the Military Governor who he submitted was the only authority competent to dismiss him under Decree No. 17 of 1984 or any such other person authorised by him, the dismissal is void. Respondents on the other hand submitted that the directive by the Military Governor to his Principal Private Secretary that the appellant "be dismissed" which directive was conveyed to the Commissioner for Local Government in Exhibit "E" is sufficient and valid authority of the exercise by the Governor of his powers as the "appropriate authority" through his principal Private Secretary who wrote and signed Exhibit "E". It was further submitted on behalf of the Respondents that Exhibit "F" is only meant to convey to the appellant the decision of the Governor as contained in Exhibit "E". The Governor needs not personally sign Exhibit "E". It is sufficient if it is signed by "any person authorised by him", which in this case is his Principal Private Secretary. By virtue of Section 3(3) of Decree No. 17 of 1984 jurisdiction of courts to entertain any civil proceedings for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree has been ousted." It was therefore submitted that with this ouster clause, the proceedings instituted by the appellant should be struck out for want of jurisdiction by the court.

 

The appellant complained that the trial court was wrong to have decided his case on a statement of claim which was amended and superceded I have gone through both the various statements of claim filed by the appellant and am unable to appreciate how that would affect the decision of the trial court as affirmed by the Court of Appeal. The purport of the original Statement of Claim as well as the subsequent amended ones is still the same to wit -Whether the appellant was validly dismissed by the Governor under Decree No. 17 from the Public Service of Imo State Government as the General Manager of the Imo State Environmental Sanitation Authority and from the Civil Service as Senior Environmental Officer in the Civil Service of the Government of Imo State. This point is more on the side of technicality than substantiality and unless it has resulted in a miscarriage of justice this Court will not disturb the decisions

of the courts below notwithstanding the impressive nature of the learned counsel's submissions on the point in his written brief and the oral argument.

 

On the issue of the appellant's dismissal under Decree No.17 of 1984, the learned trial judge after meticulously considering the affidavit and evidence before him came to correct conclusions in the following passages of his.

 

Ruling-

 

In this case, discrepancies in the management and organisation of the department in which plaintiff served were reported to the Military Governor. A panel was set up to investigate the allegations. The panel recommended that the department should be reorganised to prevent it from collapse. The Military Governor accepted the report. The reorganisation involved the dismissal of the plaintiff. The Military Governor took a decision that he be dismissed and that the person who reported the discrepancies should be compensated. He was so dismissed.

 

The Court is here dealing with purely a matter between the appropriate authority and public officer over whom the appropriate authority exercises authority under the law which in this case, is Decree No. 17 of 1984. On the peripheral question whether the plaintiff ought to remain in office as the General Manager or in any other capacity. I am satisfied from the evidence before me that the appropriate authority, that is to say, the Military Governor, did in accordance with the correct principles of the law under section 1 of the Decree No. 17 of 1984, exercise the powers given to him in such a manner that the Court is bound to adhere to section 3(3) of the same Decree.......

 

From the facts of this case plaintiff has no cause of action. Decree No. 17 of 1984 rendered the facts or combination of facts presented by him void ab initio for purposes of maintaining an action in Court. The circumstances which pertained in A. I. Wilson v. Attorney-General of Bendel State & Ors. are not similar to the material particulars of this case. Whereas in the former the Civil Service Commission of Bendel State purported to dismiss the appellant in the case acting wrongfully as 'the appropriate authority'-the Military Governor-actually dismissed the plaintiff. The Ministry of Health and the Imo State Civil Service Commission acted as mere conduit pipes through which the dismissal was brought home to the plaintiff.

 

The conclusion (supra) by the trial court was affirmed by the Court of Appeal in the following passages of its judgment.

 

It would appear that the case now is not that the appellant was not aware of his dismissal, but that he has not been dismissed by the appropriate authority. Section 4(2) of Decree No. 17 of 1984 appeals to have taken care of the doubt which might have existed in the mind of the Appellant because the appointment of the Appellant was the appointment made by a State Government and the appropriate authority under section 4(2)(i) of the Decree reads:

 

4(2)(i) In respect of any office which was held for the purposes of any State shall be the Military Governor of that State or any person authorised by him.

 

In other words, the Governor can by himself dismiss any public offices under this Decree or give his authority to any other person to do so. This is why in my view the letter Exhibit 'E' which was fully spelt out on page 122 of the record appears to me to have satisfied section 4(2)(i). The letter reads in part:

 

Dear Commissioner,

 

Environmental Sanitation Authority, Management Audit findings

 

I am directed to refer to your letter to the above subject and to convey the Military Governor's directive as follows:

 

(a)     That Mr. O. C. Nwosu be dismissed............

 

Yours respectfully, 

Sg. B.C. Agunanne

for: Principal Secretary

 

Also Exhibit F' on page 124 of the record is clear in its message and import as clearly shown on page 9 of the Respondents' brief. .

 

Even if there was no Exhibit 'F', the directive contained in Exhibit 'E' appears to me sufficient in law and is covered by Decree No.17 of 1984 that the Appellant has been properly dismissed.

 

These conclusion have not been faulted by the appellant. The directive of the Governor was that the appellant be dismissed from the service. This in my view tantamount to the appellant's dismissal from both the public service and the civil service of the Government of Imo State. If it is meant to be otherwise the directive would have been to terminate the appointment of the appellant as General Manager simpliciter, or to redeploy him into the civil service in his former capacity as Senior Environmental Planning Officer.

With these observations and with the comprehensive reasons contained in the lead judgment of my learned brother, Nnaemeka-Agu, J. S. C. which I hereby adopt, I also dismiss this appeal as lacking in merit and substance. The respondents are jointly awarded N500.00 costs against the appellant.

 

Counsel

 

Chief M. I. Ahamba

With V. I. Ifionu

 

For the Appellant

L. G. Alinor

Director of Civil Litigation, Ministry of Justice, Imo State.

For the Respondents