FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA & ANOR v. MR. ATTACHEGBE ANTHONY
(2019)LCN/13374(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/22/2004
RATIO
DELEGATION OF POWER UNDER DECREE NO. 17 OF 1984
On how the powers of the appropriate authority in the said Decree No. 17 of 1984 can be delegated, the Supreme Court in Hon. Justice Kalu Anyah & Ors. V. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 305) 290 at 316, per Karibi-Whyte, JSC, comprehensively stated as follows:-
It is well settled that where a word or phrase has been defined in an enactment that meaning must be restricted to the words so defined in the statute, the definition governs, – see Apampa v. State (1982) 6 S.C. 47. The phrase appropriate authority as defined is limited to (i) the Military Governor of the relevant State or any person authorized by him, in respect of offices held for the purposes of the state; and (ii) in any other case, the Head of the Federal Military Government, or any person authorized by him or the Supreme Military Council. Thus the appropriate authority is limited to the Head of the Federal Military Government, or the Military Governor of a State or any person authorized by them or the Supreme Military Council see Apampa v. State (1982) 6 S.C. 47.
It is conceded that the definition provides for delegation of the power, since the appropriate authority shall be the Head of the Federal Military Government, Supreme Military Council, or any other person authorized by them. Since the powers may be exercised personally or through officials, the method of delegation of the exercise of the power is not exhaustive see Are v. Adisa (1967) 1 All NLR 148. It may be exercised by a mere directive to the official to exercise the power as was in Nwosu v. Imo State Environmental Authority & Ors. (1990) 2 NWLR (Pt. 135) 668. But delegation, there must be.
(Emphasis supplied by me).PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
DELEGATION MUST BE EXPRESSIVE AND CANNOT BE INFERRED OR PRESUMED
The law is that, although the mode of delegation is not exhaustive, delegation must be express and cannot be inferred or presumed. See Okomu Oil Palm Company Ltd. v. O.S. Iserhienrhien (supra).PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA
2. DR. P.O. NWOKOLO – Appellant(s)
AND
MR. ATTACHEGBE ANTHONY – Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent, as the plaintiff in Suit No. FHC/B/20/2000 commenced in the Federal High Court sitting at Benin City, claimed against the appellants (who were the defendants) as follows: –
“a) A declaration that the purported removal from office of the plaintiff by the defendants was wrongful, illegal, malicious, unconstitutional, null and void and of no effect whatsoever.
b) That the plaintiff be re-instated/re-called to work in the service of the 1st defendant.
c) That the defendants should pay the plaintiff his salaries/allowances in full from the month of his purported removal.
d) In the alternative that the plaintiff be retired from the service of the defendant with full benefits including gratuity and pension.
The above claim was denied by the appellants in their joint statement and the case proceeded to trial. Judgment of the trial Court was delivered on 19/01/2004 and in it the trial Court granted relief (a), (b) and (c), reproduced earlier in this judgment. This appeal is against the said decision.
Learned counsel for the
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appellants formulated the following issues for determination:-
ISSUE NO 1
Whether Exhibit G: the letter of dismissal of the plaintiff/respondent comes within the requirement of Decree No. 17 of 1984, herewith attached. (Distilled from ground 1 of the notice of appeal).
ISSUE NO. 2
Whether the trial Court has jurisdiction to entertain this suit in view of the decree No. 17 of 1984. (Distilled from grounds 3 and 4 of the notice of appeal).
ISSUE NO. 3
Whether the trial Court did not err in law when it held that failure to produce the instrument of delegation was fatal to the appellants case. (Distilled from ground 2 of notice of appeal).
On behalf of the respondent, the following four issues were framed for determination:-
i.Whether the learned trial judge erred in law and on the facts when he held that Exhibit G(the letter of the purported removal of the respondent) does not come within the requirements of Decree No. 17 of 1984.
ii. Whether the trial learned judge erred in law and on the facts when he stated in his judgment that the defendants
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(appellants) failure to exhibit the instrument of delegation of authority by the Head of State for the removal of the plaintiff (respondent) from office is fatal to the case of the defendants. (appellants).
iii. Whether Decree No. 17 of 1984, ousted the jurisdiction of the lower Court to entertain this suit considering the totality of the defendants (appellants) evidence during trial.
iv. Whether this honourable Court should attach any probative value to the content of the instrument authorizing the 2nd appellant to issue Exhibit G adduced as further and additional evidence on the 14/11/2017.
For the determination of this appeal, I adopt the three issues identified by the appellants counsel. However, Issues 1 and 2 will be taken and treated together.
ISSUES 1 & 2
ISSUE NO 1
Whether Exhibit G: the letter of dismissal of the plaintiff/respondent comes within the requirement of Decree No. 17 of 1984, herewith attached.
ISSUE NO. 2
Whether the trial Court has jurisdiction to entertain this suit in view of the decree No. 17 of 1984.
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Learned counsel for the appellants argued that the respondents action was caught by the ouster of Court jurisdiction of Section 3 (5) (b) of the Public Officers (Special Provisions) Decree, 1984 and that the above Decree was the applicable Law at the time the cause of action arose and it clearly ousted the jurisdiction of the Court. In support of his contention, learned counsel referred the Court to the cases of Okeke v. A.G., Anambra State (1992) 1 NWLR (Pt. 215) 60 at 86, per Uwaifo, JCA (as he then was) and Ajayi v. Military Admin., Ondo State (1997) 5 NWLR (Pt. 504) 237.
The learned counsel for the appellants submitted that Exhibit G the letter of dismissal was issued by the 2nd respondent (sic 2nd appellant) informing him that the Head of State has by virtue of the powers conferred on him under Public Officers (Special Provisions) Act (Decree No. 17 of 1984) directed his removal with benefit from 30th April 1999 in the public interest. Counsel contended that Exhibit G the letter of dismissal comes within the purview of Decree No. 17 of 1984.”
Learned counsel for the
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respondent, however, submitted that there was no evidence of any delegation of power by the Head of State to him (the 2nd appellant) to sign Exhibit G.”
Section 1(1) of the Public Officers (Special Provisions) Decree No. 17, 1984 provides that:-
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 organization of the department or service to which a Public officer belongs: or
b) By reason of age or ill health or due to any other cause a Public 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;
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or
ii. Retire or require the public officer to compulsorily retire from the relevant public service.
Then Section 4(2) of the Decree provides that:-
4(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 or the Supreme Military Council.
ii. In any other case, shall be the Head of the Federal Military Government or any person authorized by him or the Supreme Military Council.
On how the powers of the appropriate authority in the said Decree No. 17 of 1984 can be delegated, the Supreme Court in Hon. Justice Kalu Anyah & Ors. V. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 305) 290 at 316, per Karibi-Whyte, JSC, comprehensively stated as follows:-
It is well settled that where a word or phrase has been defined in an enactment that meaning must be restricted to the words so defined in the statute, the definition governs, – see Apampa v. State (1982) 6 S.C. 47. The phrase appropriate authority as defined is limited to (i) the Military
6
Governor of the relevant State or any person authorized by him, in respect of offices held for the purposes of the state; and (ii) in any other case, the Head of the Federal Military Government, or any person authorized by him or the Supreme Military Council. Thus the appropriate authority is limited to the Head of the Federal Military Government, or the Military Governor of a State or any person authorized by them or the Supreme Military Council see Apampa v. State (1982) 6 S.C. 47.
It is conceded that the definition provides for delegation of the power, since the appropriate authority shall be the Head of the Federal Military Government, Supreme Military Council, or any other person authorized by them. Since the powers may be exercised personally or through officials, the method of delegation of the exercise of the power is not exhaustive see Are v. Adisa (1967) 1 All NLR 148. It may be exercised by a mere directive to the official to exercise the power as was in Nwosu v. Imo State Environmental Authority & Ors. (1990) 2 NWLR (Pt. 135) 668. But delegation, there must be.
(Emphasis supplied by me).
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The trial Court, in its judgment, reproduced Exhibit G the letter removing the respondent from the Federal Civil Service. The said letter, copied on page 60 of the record of appeal, is as follows:-
FEDERAL COLLEGE OF EDUCATION
(TECHNICAL)
P.M.B. 1044,
ASABA, Delta State, Nigeria.
046/280331
Our Ref: FCE(T)/AS/PROV.12/301
Your Ref:
Date: 30th April, 1999.
PROVOST:
Dr. Pius O.E. Nwaokolo,
B.A. (Hons) M.A. PhD.,
F.S.T.B., FNABE, MNVA
Mr. Attachegbe Anthony
U.f.s. Dean. Sch. Of Edu.,
Fed. Col. Of Edu. (Tech),
Asaba.
Dear Sir/Madam,
REMOVAL FROM THE FEDERAL CIVIL SERVICE
I am directed to inform you that the Head of State, Commander-in-Chief of the Armed Forces, Federal Republic of Nigeria, General Abdulsalami Alhaji Abubakar, has by virtue of the powers conferred on him under the Public Officers Special Provisions Act (Decree No. 17 of 1984) removed you with benefit if applicable from the Federal Civil Service with effect from 30th April, 1999 in the public interest.
2. You are kindly requested to hand over all
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Government property in your possession to the Head of your Department.
3. Please acknowledge receipt of this letter.
Yours faithfully,
Sgd.
Dr. P.O. Nwaokolo
Provost.
The content of Exhibit G reproduced above, is clear and unambiguous and it should be read together and interpreted literally.
There is nothing in Exhibit G which shows that the 2nd appellant, who signed the said document, was delegated by the Head of State under the Public Officers (Special Provisions) Decree No. 17 of 1984 or any other Act or Law or at all to remove the respondent from the Federal Civil Service. The 2nd appellant, by the said letter, did not disclose the person or authority that directed him to convey the information in Exhibit G to the respondent.
In the case of Okomu Oil Palm Company Ltd. v. O.S. Iserhienrhien (1996) 1 NWLR (Pt. 422) 94, this Court interpreted the provisions of the Public Officers (Special Provisions) Decree No. 17, 1984 and, per Ubaezonu, JCA, held at page 106 as follows:-
“Where therefore the exercise of the power by the appropriate authority under
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the Decree is challenged, it behoves the party that claims that the power was exercised by the appropriate authority to show by evidence oral or documentary that as a matter of fact, the power was exercised by one of the persons designated as the appropriate authority. If the power is exercised by a person to whom the power was delegated, the party asserting that delegation has to show evidence of that delegation the delegation could be general or specific. In the case under consideration there is no evidence of any such delegation by the persons who purported to exercise the power.
From the decided cases, for the provisions of the said Decree Decree No. 17 of 1984, to apply, where the powers thereunder have not been directly exercised by the appropriate authority, there must be evidence of express delegation. See Hon. Justice Kalu Anyah & Ors. v. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 305) 290 at 316, per Karibi-Whyte, JSC.
The law is that, although the mode of delegation is not exhaustive, delegation must be express and cannot be inferred or presumed. See Okomu Oil Palm Company Ltd. v. O.S. Iserhienrhien (supra). In
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this case, there was no evidence from the appellants or at all that the 2nd appellant was delegated to act under Decree No. 17 of 1984 by his letter Exhibit G, which purportedly removed the respondent from the Federal Civil Service.
The learned trial Judge, I.N. Auta, J. (as he then was) was precisely and concisively correct when His Lordship held on pages 60 to 61 of the record of appeal as follows:-
“It means that the 2nd defendant acted on his own without authority. The letter headed paper does not emanate from the head of state office. The 2nd defendant just wrote that I am directed to inform you that the Head of State who directed him, was not disclosed or evidenced before the Court. The letter Exhibit G was also signed by the 2nd defendant, as provost. That said letter of removal from the Federal Civil Service, Exhibit G does not come within the requirement of Decree No. 17 of 1984. It is just a mere piece of paper, it has no backing of the law. It is illegal and therefore of no effect.
As stated before, the above findings and decision of the
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trial Court were justified in the circumstances of this case and I am unable to find any reason to tamper with them.
For all the above reasons, issues 1 and 2 are hereby resolved against the appellants.
ISSUE 3
Whether the trial Court did not err in law when it held that failure to produce the instrument of delegation was fatal to the appellants case.
Learned counsel for the appellants referred to pages 51 67 of the record of appeal, where the trial Court held, inter alia, that failure by the appellants to exhibit the instrument of delegation is fatal to their case, and contended that:
Whereas Section 1(1) of the Public Officers (special provision) Decree 1984 provides that notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that:
It is necessary so to do in order to facilitate improvement in the organization of the department or service to which a public officer belongs the appropriate authority may at any time after 31st December 1983 dismiss or remove the public officer summarily from his office.
And whereas, the Decree in Section 4(2)
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(b) provides that in the operations of the Decree, the appropriate authority, for the purpose of that section, shall be the Head of State, Commander-in-Chief of the Armed Forces OR ANY OTHER PERSON AUTHORIZED BY HIM or the provisional Ruling Council.
In response, learned counsel for the respondent argued that the trial Court was right when it stated the obvious that the failure of appellants to exhibit the instrument of delegation of authority for the issuance of Exhibit G was fatal to their case.
As stated earlier, delegation of the powers granted to the appropriate authority under Decree No. 17 of 1984 must be express, as it cannot be inferred or presumed. In this case, the failure by the appellants to provide or produce evidence of delegation was fatal to their case. The trial Court was, therefore, right in its finding and decision.
I also resolve issue 3 against the appellants and in favour of the respondents.
CONCLUSION
Having resolved all the issues against the appellants, this appeal is bereft of any merit and it is hereby dismissed.
The judgment of the trial Court, per I.N. Auta, J. (as he then was)
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delivered on the 20th day of January, 2003 in Suit No. FHC/8/CS/20/2000 is hereby affirmed.
The sum of N300, 000.00 (Three Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondent and against the appellants.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the draft copy of the leading judgment just delivered by my learned brother, Moore Aseimo Abraham Adumein, JCA.
The issues in contention have been exhaustively and adequately addressed in consonance with established authorities and relevant statutory provisions. I adopt the reasoning and conclusion reached therein as mine without the need for further elucidation.
Accordingly, I hold that the appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the leading judgment inclusive of that of cost.
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Appearances:
Mrs. U.C. IkpeFor Appellant(s)
A.N. Onyejose, Esq.For Respondent(s)
Appearances
Mrs. U.C. IkpeFor Appellant
AND
A.N. Onyejose, Esq.For Respondent
