ADAH v. GBERKON & ANOR
(2022)LCN/15985(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, February 03, 2022
CA/J/274/2002
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
J. A. ADAH APPELANT(S)
And
1. JOHN GBERKON
(CHAIRMAN, BENUE STATE CIVIL SERVICE COMMISSION, MAKURDI) 2. THE ATTORNEY GENERAL OF BENUE STATE RESPONDENT(S)
RATIO
THE PURPOSE OF A PRELIMINARY OBJECTION
Accordingly, there is no doubt that the intent or purpose of Preliminary Objection is to terminate a Case at the earliest stage of proceedings. This is particularly so because the law is trite that only issues that are free from any known legal handicap should proceed for trial. See the case of YARO V. AREWA CONSTRUCTION & ORS (2007) 6 SCNJ 418. It suffices to say that since issues 2 and 3 of the original Appellants Brief of Argument were/are no more in existence, the Preliminary Objection is of no moment and same is hereby struck out. However, in the event that I am wrong, the substantive issues would be resolved hereunder. PER AGUBE, J.C.A.
WHETHER THE COURT CAN APPROBATE AND REPROBATE
The law is settled that a Court of law which is a Court of justice has no business approbating and reprobating. It would certainly loose the confidence of the litigating public if they cannot be sure of what the Court is up to even after making decision in their favour. It was for the above reason that GALADIMA, JSC in the case of FEDERAL REPUBLIC OF NIGERIA V. FAITH IWEKA (2011) LPELR-9350 (SC) opined thus:
“…this is in tandem with the settled principle of law that a Court cannot approbate and reprobate at the same time.” PER AGUBE, J.C.A.
THE DOCTRINE OF DELEGATED POWER
The doctrine of delegated power is an administrative process where functions are assigned to subordinates in other to make them perform those duties that were originally meant for superior authority. Delegation is basically a sine qua non for an institution or organization to function effectively in order to achieve its objectives. The English Court in the case of CARLTONA LIMITED V. WORKS COMMISSIONERS (1943) 2 ALL ER 560 held that:
“In the administration of government, the functions which are given to Ministers are functions so multifarious that no Minister could ever personally attend to them. Therefore the duties imposed upon the Ministers and the powers given to the Ministers are normally exercised under the authority of the Ministers by responsible officials of the department.” PER AGUBE, J.C.A.
THE REQUIREMENT TO GIVE A DISMISSAL, TERMINATION OR RETIREMENT UNDER THE PUBLIC OFFICERS (SPECIAL PROVISIONS) ACT,1990 CAAP 381
Again, on another score, the Apex Court in the case of ULEGEDE & ANOR V. MILITARY ADMINISTRATOR, BENUE STATE (2000) FWLR (PT. 22) 981 AT 996-997 opined that:
“It is now well established that in order for a given dismissal, termination or retirement to come under the purview of the Public Officers (Special Provisions) Act, 1990 Cap. 381, the Letter conveying such dismissal, termination or retirement to the affected persons must be signed by either the Head of Government i.e the Governor, Military Governor or Administrator as the case may be, as the appropriate authority under the Act, or any other person authorized or directed by him. In the instant case, the letter of retirement served on the Appellant was signed by one Engineer S. N. Tarsabo, and not by the appropriate authority (i.e Military Administrator himself). It becomes necessary therefore for the Respondents who were defending the said retirement to tender some evidence usually a Letter from the Government, Ministry or Department concerned to retire the person. Such a letter would provide a nexus between the appropriate authority and the person who issued the Letter of termination or retirement.”
Again, the Law Lord of the Apex Court per KARIBI-WHYTE, JSC in the case of HON. JUSTICE KALU ANYAH & ORS V. DR. FESTUS IYAYI (1993) LPELR-510 (SC) opined that:
“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 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 34 SC. 47.” PER AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Benue State sitting in Makurdi and delivered by Hon. Justice T.U.F PUUSU on the 17TH day of April, 2002 whereof the trial Judge declined jurisdiction by striking out the application of the Appellant on the ground that his dismissal was in accordance with the provisions of the Public Officers (Special Provisions) Decree No. 17 of the 1984. Dissatisfied with the decision, the Appellant invoked the jurisdiction of this Court by a Notice of Appeal dated 20th of June, 2002 containing Three (3) Grounds of Appeal which I hereunder reproduce albeit without their respective particulars to wit:-
“GROUNDS OF APPEAL:
GROUND ONE:
The judgment is against the weight of evidence.
GROUND TWO:
The learned trial Judge erred in law when he held the dismissal of the Appellant to be in order.
GROUND THREE:
The learned trial Judge misdirected himself in law when he held the dismissal of the Appellant proper on the principle of law that he who does an act through another is deemed in law to do for himself.”
RELIEFS SOUGHT:
a. Order of Court setting aside the judgment of the trial Court dated the 17th of April, 2002.
b. Order of the Court granting the Appellant’s reliefs before the trial Court.
STATEMENT OF FACTS:
The summary of the Appellant’s case is that in 1978, he was employed as an Executive Officer (Accounts) under the Benue State Government and his appointment was thereafter confirmed in 1980 where he later rose to the rank of a Chief Executive Officer (Accounts) on Grade Level 13. He was then transferred to the Bureau of Lands and Survey as an Accountant where he later became the Head of Department of Finance in the Bureau.
According to the Appellant, in 1998, the Military Administrator of Benue State set up a Judicial Commission of Inquiry to investigate the activities of the Bureau and in the cause of the investigation, the Commission found him to be involved in an alleged malpractice and recommended him to be dismissed therefor. It was his further case that he challenged the purported dismissal at the Benue State High Court and sought for the following reliefs:
1. An order of Court quashing the report of the Bureau of Lands and Survey Judicial Commission of Inquiry and the Government decisions on it as it affected the Applicant.
2. An order of Court quashing the letter referenced no. 269/S/Vol.1/19 purporting to dismiss the Applicant from service and to declare the purported dismissal as null and void.
3. An order of Court that the Applicant has been a Chief Finance Officer in Civil Service of Benue State and still remains so; a fortiori, an order of Court that he is entitled to all the rights, privileges and benefits attaching to that office including his total emoluments.
4. An order of Perpetual Injunction restraining the Respondents, the Benue State Government or any of her agents, servants or privies acting through her in whatsoever capacity from interfering with the contract of his employment.
According to the Appellant, in spite of the reliefs sought, his case was dismissed on the ground that the dismissal was in accordance with the provision of Decree No.17 of 1983.
On the other hand, the case of the Respondents was that the Appellant as an employee of the Benue State Government was dismissed on the grounds of culpable negligence, inefficiency, illegal lending of government fund and concealment of a discovered missing receipt booklet. See page 1 of the Respondents’ Brief of Argument.
It was the further case of the Respondents that the decision of the Council and directive of the Military Administrator was conveyed to the 1st Respondent vide Exhibit “1” by the Secretary to the State Government. According to the Respondents, it was categorically stated in the said Exhibit “1” that the Appellant should be informed that the Military Administrator was exercising his powers under Decree No.17 of 1983. The Respondents contended that the High Court lacked jurisdiction to entertain the matter and that the Military Administrator acted under the Public Officers’ (Special Provisions) Decree No. 17 of 1984 which ousted the jurisdiction of the Court.
It was also their (Respondents’) case that the matter was heard and the learned trial Judge gave a ruling on the 17th day of April, 2002. See pages 69-84 of the Record. Aggrieved by the decision, the Appellant filed a Notice of Appeal dated 20th June, 2002 as earlier indicated. See pages 85-87 of the Record. The Records of Appeal was thereafter compiled, transmitted and entered into this Court and the Briefs of Argument were filed and exchanged by the learned Counsel to the respective parties. In the Appellant’s Amended Brief of Argument dated 19th of March, 2020 and filed on the 23rd day of March, 2020 but deemed properly filed and served on the 25th of October, 2021 which was settled by Ocha P. Ulegede Esq., Two (2) Issues were distilled for determination to wit:
“ISSUES FOR DETERMINATION:
1. Whether the dismissal of the Appellant by the Respondents can be sustained under Decree No.17 of 1983 and or Decree No.17 of 1984 (Cap. 381 LFN 1990) in the circumstances of this case? (Distilled from Ground 2).
2. Whether the principle of law that he who does an act through another is deemed in law to do it himself is applicable to Decree No.17 of 1983 (Cap. 381 LFN 1990) which is a special legislation giving specific powers to specific person(s) exercisable in strict and specific manner, which was not complied with by the Respondents in dismissing the Appellant? (Distilled from Ground 3).
Upon receipt of the Appellant’s Brief of Argument, the Respondents’ Brief of Argument dated 17th September, 2003 and filed on the 16th of October, 2003 but deemed properly filed and served on the 25th day of October, 2021 was settled by M.E Ojeh Esq., whereof three issues were distilled for determination to wit:
“ISSUE FOR DETERMINATION:
1. Whether the wrong citation (or non-citation at all) of the Public Officers (Special Provisions) Decree No.17 of 1984 renders invalid the dismissal of the Appellant?
2. Whether the Public Officers (Special Provisions) Decree No. 17 of 1984 is applicable in Benue State?
3. Whether the dismissal of the Appellant was in conformity with the provisions of the Public Officers (Special Provisions) Decree 1984?
However, it would be recalled that the Respondents raised a Preliminary Objection challenging the Appellant’s issues 2 and 3 on the ground that there were not raised at the trial Court and that leave of this Court was not sought and obtained before the issues were argued.
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE ONE (1):
WHETHER THE DISMISSAL OF THE APPELLANT BY THE RESPONDENTS CAN BE SUSTAINED UNDER DECREE NO.17 OF 1983 AND OR DECREE NO.17 OF 1984 (CAP. 381 LFN 1990) IN THE CIRCUMSTANCES OF THIS CASE? (DISTILLED FROM GROUND 2).
On this issue, the learned Counsel for the Appellant relied on the Letter of Dismissal dated 8th of March, 1999 which said letter was based on Decree No.17 of 1983. He maintained that after perusing the entire Statute Books between the years 1983-1990, nothing was found to reckon with Decree No. 17 of 1983. According to him, Decree No. 17 of 1983 does not exist in the Statute Books of the Federal Republic of Nigeria.
It is the argument of the learned Counsel for the Appellant that Nigeria was under the Civilian Democratic Rule in the year 1983 up to December, 31st 1983 and there was no Decree in 1983 in the Statute Books of the Federal Republic of Nigeria to sustain the dismissal of the Appellant. He argued that Decree No. 17 of 1983 now Cap. 381 LFN, 1990, was promulgated in April, 1984 by the Military Regime headed by Gen. Buhari and that the Decree took effect from December, 1983. According to him, the Decree was promulgated by the Supreme Military Council which was then the Legislative Authority at the Federal Level.
It is the contention of the learned Counsel for the Appellant that the Military Governors controlled the affairs at the State level and the applicable Legislations were the Edicts and that under the Military Regime, the Federal Civil Service and the State Civil Service were regulated differently which was evident in their salary scales. He maintained that Decree No. 17 of 1983 was meant for the Federal Civil Servants and not the State; for the Decree was later transformed to Cap. 381 LFN, 1990 whose operation is no more.
The learned Counsel for the Appellant contended that Exhibit “1” which was the Benue State Executive Council’s Minutes of the meeting where the decision was taken to dismiss the Appellant showed that the meeting was held on the 3rd day of February, 1999 and that Decree No. 17 of 1983 was no more in force as of then. The learned Counsel cited Section 132 (1) of the Evidence Act, 1990 now Section 128 of the Evidence Act, 2011 and the authorities of AGBAREH V. MIMRA (2008) ALL FWLR (PT. 409) 559 AT 584 PARAS E-F; OLUBODUN V. LAWAL (2008) ALL FWLR (PT. 434) 1468 AT 1525 PARAS B-C; OSUNBOR V. OSHIOMHOLE (2009) ALL FWLR (PT. 463) 1363 AT 1408 PARAS F-H in submitting that the trial Judge accepted the Appellant’s letter of dismissal in evidence as Exhibit “D” and specifically stated that the action was taken under Decree No. 17 of 1983 but thereafter made a somersault that the Appellant was dismissed under the Public Officers (Special Provisions) Decree No. 17 of 1984.
He argued that the learned trial Judge was not the one who issued Exhibit “D” and that it was not within his purview to dismiss the Appellant nor was he allowed to vary the content of Exhibit “D” from what it was. It was the further argument of the learned Counsel for the Appellant that the Trial Judge failed in his duty to maintain his position as an impartial umpire and that he has no power to dismiss the Appellant from the employment of the Benue State Civil Service as he did by reverting the Appellant’s purported dismissal under Decree No.17 of 1983 to Decree No.17 of 1984.
The learned Counsel to the Appellant contended that the action of the trial Judge, with due respect, was a nullity and same has occasioned grave miscarriage of justice on the Appellant. He cited the provisions of Sections 2 (1)(a) and 5 (1) of the Decree No. 21 of the 1990 in submitting that it was a Federal enactment and not State enactment. He further argued that Section 156 of the Constitution of the Federal Republic of Nigeria 1979, provided for the Public Service of the Federation while Section 187 of the same Constitution provided for the State. He maintained that on the assumption that Decree No.17 of 1984 Cap. 381 was/is applicable to the State Civil Service, it would imply that the Decree ought to be inconsistent with the provisions of Section 33 of the 1979 Constitution and Section 36 of the 1999 Constitution and to the extent of such inconsistencies, shall be null and void.
The learned Counsel for the Appellant submitted that the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 4 SCNJ 97 is distinguishable from the instant case and that the application of Decree No.17 of 1984 in dismissing the Appellant was done without availing him the right of fair hearing which was a tripled error in law. He further submitted that the learned trial Judge was aware of the above position of the law and that of his learned brother Eko, J at the time he delivered his Judgment. He referred us to pages 83-84 of the record. Still on the same score, he maintained that the trial Judge appreciated the fact that the Case of Terlumum Orhungul was dismissed under the same decree and circumstances like the Appellant here.
Citing Section 74 (1) of the Evidence Act, 1990 now Section 122 of the Evidence Act, 2011, the learned Counsel for the Appellant submitted that both the trial Court and this Court are to take judicial notice of our laws so that issues are to be decided on the true state of the law. He concluded his argument by further submitting that the learned trial Judge erred in law by refusing to apply the true state of the law on the Appellant’s case as it were in the Case of Terlumum Orhungul. He therefore urged us to resolve this issue in favour of the Appellant against the Respondent.
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE TWO:
WHETHER THE PRINCIPLE OF LAW THAT HE WHO DOES AN ACT THROUGH ANOTHER IS DEEMED IN LAW TO DO IT HIMSELF IS APPLICABLE TO DECREE NO.17 OF 1983 (CAP. 381 LFN 1990) WHICH IS A SPECIAL LEGISLATION GIVING SPECIFIC POWERS TO SPECIFIC PERSON(S) EXERCISABLE IN STRICT AND SPECIFIC MANNER, WHICH WAS NOT COMPLIED WITH BY THE RESPONDENTS IN DISMISSING THE APPELLANT? (DISTILLED FROM GROUND 3).
The learned Counsel for the Appellant contended that the dismissal of the Appellant was initiated under Decree No.17 of 1983 which the Learned Trial Judge amended to Decree No.17 of 1984 and that the Trial Judge lacked the power to do so. To buttress his case, he referred this Court to the Case of OKORO V. DELTA STEEL CO. LTD & ANOR (1990) 2 NWLR (PT. 49) 89 at 99-101. He submitted that the author of Exhibit “D” was not the appropriate authority within the meaning of Section 2 of the Decree and that the Respondents did not show that the Military Administrator of Benue State delegated his power to anybody including the author of Exhibit “D” as there was no evidence of instrument of delegation from the appropriate authority. Again, he referred us to the authorities of ANYAH V. IYAYI (1993) 9 SCNJ (PT. 1) 53 at 70-71; ULEGEDE & ANOR V. MILITARY ADMINISTRATOR, BENUE STATE (2000) FWLR (PT. 22) 981 at 996-997. Flowing from the above, the learned Counsel for the Appellant submitted that there was no delegation of authority by the Military Governor of Benue State under Section 2 of the Decree to John Gberkon to carry out the removal/dismissal of the Appellant. Accordingly, the learned counsel submitted in the light of the foregoing that, the purported dismissal of the Appellant cannot be sustained in law and that the principle of he who does the act through another is deemed in law to do it himself was/is not applicable to Decree No.17 of 1984. Thus, he insisted that the removal of the Appellant was a nullity and therefore this Court is urged to resolve this issue in favour of the Appellant against the Respondents, allow the appeal and set aside the decision of the trial Court.
THE RESPONDENTS’ PRELIMINARY OBJECTION:
In canvassing the Preliminary Objection, the learned Counsel for the Respondents contended that the Appellant’s issues two and three were not raised and argued at the Trial Court and that the trial Judge only mentioned the Issue of the applicability of Decree No.17 of 1984 (Public Officers Special Provisions) Act, Cap. 381 LFN, 1990 in passing and nothing more. He referred us to page 83 of the record.
It is the argument of the learned Counsel for the Respondents that any issue not raised before the trial Court cannot be raised afresh and argued on appeal except with leave of the Court. He relied on the authorities of HIS ROYAL HIGHNESS EREJUWA & ORS V. E. O.KPEREGBEYI & ORS (1994) 4 SCN (PT. 2) 241 AT PAGE 263; MOHAMMED JUWO V. ALHAJI SHEHU & 1 ORS (1992) 10 SCNJ 26 AT 32 to strengthen his case.
The learned Counsel to the Respondents submitted that the Appellant’s issues two and three were not raised at the Trial Court and that such arguments should be expunge from the record.
ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE ONE:
WHETHER THE WRONG CITATION (OR NON-CITATION AT ALL) OF THE PUBLIC OFFICERS (SPECIAL PROVISIONS) DECREE NO.17 OF 1984 RENDERS INVALID THE DISMISSAL OF THE APPELLANT?
On this issue, the learned Counsel for the Respondents contended that there was/is no Law known as Decree No.17 of 1983 in the Statute Books and that what is known to law is the Public Officers (Special Provisions) Decree No.17 of 1984. According to him, Decree No.17 of 1984 was later printed out in the Laws of the Federation, 1990 and further appeared as Public Officers (Special Provisions) Act and that the reference to Decree No.17 of 1983 in the dismissal Letter of the Appellant was a wrong citation which did not affect negatively the acts of the Military Administrator in dismissing the Appellant.
The learned Counsel for the Respondents argued that even if the dismissal letter fails to refer to any Law under which the Military Administrator was acting on, Decree No.17 of 1984 would still be applicable once the actions of the Military Administration falls within the contemplation of the Decree. He referred us to the authority of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 4 SCN to strengthen his Case.
Accordingly, he submitted that the Appellant was not in any way misled by the wrong citation of the decree and that all the authorities cited by the Appellant at the trial Court was centered on Decree No.17 of 1984. Therefore he urged this Court to resolve this issue in favour of the Respondents against the Appellant. ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE TWO:
WHETHER THE PUBLIC OFFICERS (SPECIAL PROVISIONS) DECREE NO. 17 OF 1984 IS APPLICABLE IN BENUE STATE?
The learned Counsel for the Respondents contended that the cause of action in this case accrued during the immediate past Military regime and so, it is the position of the law at that time that would be applicable in the determination of this case. Citing Section 2 (1) of the Constitution (Suspension and Modification) Decree No.17 of 1993, he submitted that the Federal Military Government had power to make laws for the State on any matter irrespective of whether the matter is on the Exclusive, Concurrent or Residual Legislative List.
He further submitted that the mere inclusion of Decree No.17 of 1984 in the Revised Editions of the Laws of the Federation of Nigeria, 1990 does/did not rendered the operation of the Decree ineffective because Decree No.17 of 1984 was still an existing Law until the 29th day of May, 1999 when it was repealed by the Constitution (Certain Consequential Repeals) Decree No.63 of 1999. The learned Counsel for the Respondents maintained that the Appellant in the instant case was dismissed under Decree No.17 of 1984 and not under the Public Officers (Special Provisions) Act, (Cap.381 LFN, 1990) and that Decree No.17 of 1984 was promulgated with the contemplation that it would also be applicable on the States. He referred this Court to Sections 4 (1)(a); 4 (2)(i) to buttress his case.
Placing reliance on Section 1 (2), (3) of what Act or Constitution and the authority of D.A. LABIYI & ORS V. ALHAJI M.M. ANRETIOLA (1992) 10 SCNJ 1 AT 14, the learned Counsel for the Respondents submitted that a Decree was/is superior to the unsuspended provisions of the Constitution and that Section 33 (1) of the 1979 Constitution has to be read subject to a Decree. Accordingly, he urged us to resolve this issue in favour of the Respondents against the Appellant.
ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE THREE:
WHETHER THE DISMISSAL OF THE APPELLANT WAS IN CONFORMITY WITH THE PROVISIONS OF THE PUBLIC OFFICERS (SPECIAL PROVISIONS) DECREE 1984?
On the question posed, the learned Counsel for the Respondents submitted that under Section 1 (1) of Decree No. 17 of 1984, the appropriate authority (Military Administrator of Benue State) has all the powers to dismiss or remove any Public Officer summarily from office for any of the reasons stated in paragraphs (a) – (d) of Section 1 (1) supra. Citing Sections 4 (1)(a);4 (2)(a) of Decree No.17 of 1984, he further submitted that from the facts of the case, it was/is never in doubt that the Appellant was a Public Officer as stated under the Decree. Therefore, from the foregoing, the Military Administrator of Benue State was vested with the appropriate authority to remove the Appellant from office.
Relying on the authorities of HON. JUSTICE KALU ANYAH & ORS V. DR. FESTUS IYAYI (1993) 9 SCNJ (PT. 1) 53 AT 95; ARE V. ADISA (1967) 1 ALL NLR 148, the learned Counsel for the Respondents again submitted that though Decree No. 17 of 1984 did not specifically state the mode of authorization of another person to act on behalf of the appropriate authority but that the mode can be either Oral, Written Instrument or even by an endorsement in the subject file. He referred us to Section 6 (10) of the Constitution (Suspension and Modification) Decree No.107 of 1993.
On another score, the learned Counsel for the Respondents relied on the case of NWOSU V. IMO STATE ENVIRONMENTAL AUTHORITY supra in submitting that the doctrine of the law stating that he who does an act through another is deemed to have done it himself is correct and applicable to the instant case and that the Military Administrator of Benue State acted under the power conferred on him by Decree No. 17 of 1984 in dismissing the Appellant from the service of Benue State Government.
The learned Counsel for the Respondents urged this Court to resolve issue three in favour of the Respondents against the Appellant and to further dismiss the appeal and affirmed the decision of the trial Court.
RESOLUTION OF THE PRELIMINARY OBJECTION
In resolving these issues, it is noteworthy to assert that the learned Counsel to the Appellant upon filing the Appellant’s Amended Brief of Argument on the 23rd of March, 2020 which was deemed filed on the 25th day of October, 2021 distilled two issues for determination as against the three issues earlier raised which gave rise to the Preliminary Objection. Consequently, as can be gleaned from the Record, the issues that gave rise to the Preliminary Objection were no more in existence because of the amendment and with this development, the said Preliminary Objection becomes worthless, otiose and of no effect.
Accordingly, there is no doubt that the intent or purpose of Preliminary Objection is to terminate a Case at the earliest stage of proceedings. This is particularly so because the law is trite that only issues that are free from any known legal handicap should proceed for trial. See the case of YARO V. AREWA CONSTRUCTION & ORS (2007) 6 SCNJ 418. It suffices to say that since issues 2 and 3 of the original Appellants Brief of Argument were/are no more in existence, the Preliminary Objection is of no moment and same is hereby struck out. However, in the event that I am wrong, the substantive issues would be resolved hereunder.
RESOLUTION OF ISSUE ONE:
WHETHER THE DISMISSAL OF THE APPELLANT BY THE RESPONDENTS CAN BE SUSTAINED UNDER DECREE NO.17 OF 1983 AND OR DECREE NO.17 OF 1984 (CAP. 381 LFN 1990) IN THE CIRCUMSTANCES OF THIS CASE?
The crux of this issue is whether or not Decree No.17 of 1983 was/is applicable in the circumstances of the case. It is pertinent to note that the letter of dismissal Exhibit “D” issued to the Appellant dated 8th March, 1999 read thus:
“DISMISSAL FROM SERVICE
The Military Administrator of Benue State, Colonel Dominic O. Oneya has by virtue of the powers conferred upon him by Decree No. 17 of 1983, which powers, hereby directed that you Mr. J. O. Adah be dismissed from the service of Benue State Government in the public interest.
2. The dismissal which is with effect from 8th March, 1999 is hereby conveyed to you on the orders of the said Military Administrator.
3. This letter is copied to the Secretary to the State Government and Head of Civil Service, the Accountant-General and the Attorney General, Benue State for their information and necessary action.
(JOHN I. GBERKON)
JIG/OGEZI Chairman
Civil Service Commission”
From the foregoing, it is crystal clear that the dismissal of the Appellant was based on Decree No.17 of 1983. It is also instructive to note that Decree No. 17 of 1983 now Cap. 381 Laws of the Federation, 1990 was promulgated in April, 1984 by General Buhari led Administration but took effect from December, 1983. However, the rationale for this retrospective effect was to enable the Buhari led Administration remove, dismiss or compulsorily retire Civil Servants whom the Government had considered deadwoods from the Civil Service of the Federation and to further prevent them from challenging their removal in Court.
Again, there is no doubt that the trial Court accepted the Appellant’s letter of dismissal in evidence as Exhibit “D” and specifically stated at page 78 lines 24-27 of the Record/Ruling that:
“Exhibit “D” makes reference to Decree No.17 of 1983 as the purported dismissal was purportedly done under the said Decree No. 17. Therefore the applicable law in this case is the said Decree.”
On the same score, the learned trial Judge further held at pages 78-79 lines 28-35 that:
“The Appellant was purportedly dismissed under the Public Officers (Special Provisions) Decree No. 17 of 1983 but the correct citation should have been the Public Officers (Special Provisions) Act, No. 17 of 1984 (Cap.381 Laws of the Federation, 1990). The relevant question is whether the Respondents complied with the provisions of Decree No.17 of 1984.”
The law is settled that a Court of law which is a Court of justice has no business approbating and reprobating. It would certainly loose the confidence of the litigating public if they cannot be sure of what the Court is up to even after making decision in their favour. It was for the above reason that GALADIMA, JSC in the case of FEDERAL REPUBLIC OF NIGERIA V. FAITH IWEKA (2011) LPELR-9350 (SC) opined thus:
“…this is in tandem with the settled principle of law that a Court cannot approbate and reprobate at the same time.”
Accordingly, the learned Counsel to the Respondents at page 4 of their Brief of Argument conceded to the fact that there was/is no law known as Decree No.17 of 1983 and that such cannot be found in the Statute Books. Thus, since Decree No.17 of 1983 did not exist and was never in existence, the purported action of the Respondents in dismissing the Appellant under a non-existing Law/Decree was a non-starter. This also points to the fact that the dismissal of the Appellant from the Civil Service was not tied to any known law. To this effect, the question agitating my mind is whether Decree No.17 of 1984 would suffice in place of Decree No.17 of 1983 in the dismissal of the Appellant from the Civil Service? My answer is no, this is particularly so because from the wordings and intent of the Letter of Dismissal as rightly couched by the Chairman, Civil Service Commission, Benue State, Decree No.17 of 1983 was meant to be the extant Law and no other.
Consequently, the trial Court was wrong to have brought the Appellant’s dismissal under Decree No.17 of 1984. This is so because the Respondents did not contemplate Decree No.17 of 1984 to be the applicable law in respect of the Appellant’s dismissal. Flowing from the above, it is my considered view that the trial Court was wrong to have held that Decree No.17 of 1984 was the applicable law with regard to the Appellant’s dismissal. This issue is resolved in favour of the Appellant against the Respondents.
RESOLUTION OF ISSUE TWO:
WHETHER THE PRINCIPLE OF LAW THAT HE WHO DOES AN ACT THROUGH ANOTHER IS DEEMED IN LAW TO DO IT HIMSELF IS APPLICABLE TO DECREE NO.17 OF 1983 (CAP. 381 LFN 1990) WHICH IS A SPECIAL LEGISLATION GIVING SPECIFIC POWERS TO SPECIFIC PERSON(S) EXERCISABLE IN STRICT AND SPECIFIC MANNER, WHICH WAS NOT COMPLIED WITH BY THE RESPONDENTS IN DISMISSING THE APPELLANT?
The doctrine of delegated power is an administrative process where functions are assigned to subordinates in other to make them perform those duties that were originally meant for superior authority. Delegation is basically a sine qua non for an institution or organization to function effectively in order to achieve its objectives. The English Court in the case of CARLTONA LIMITED V. WORKS COMMISSIONERS (1943) 2 ALL ER 560 held that:
“In the administration of government, the functions which are given to Ministers are functions so multifarious that no Minister could ever personally attend to them. Therefore the duties imposed upon the Ministers and the powers given to the Ministers are normally exercised under the authority of the Ministers by responsible officials of the department.”
However, the gravamen of the learned Counsel to the Appellant’s contention is that the doctrine of delegated power was/is not applicable to Decree No.17 of 1983. It is clear that the Letter of Dismissal Exhibit “D” specifically cited Decree No.17 of 1983 and not Decree No.17 of 1984. I have earlier said elsewhere that Decree No.17 of 1983 was never in existence and so for the principle of “qui facit per alium facit per se” being a Latin Maxim which stipulates that he who does an act through another is deemed in law to do it himself should be applicable, the foundation which gave rise to the invocation of the principle must be correct and sound.
There is no doubt that the Respondents conceded to this fact when they categorically submitted in their Brief of Argument at page 4 lines 13-14; 17-18 inter alia:
“The Respondent conceded that there is no law known as Decree No.17 of 1983 in our Statute Books…the reference of Decree No.17 of 1983 in the Dismissal Letter of the Appellant was a wrong citation.”
Accordingly, citing and relying on a wrong Decree in the purported dismissal of the Appellant was not just misleading but incurably misleading. This is particularly so because the State Executive Council together with the Chairman Civil Service Commission acted on that premise in dismissing the Appellant. It suffices to further assert that every action founded on the Decree No.17 of 1983 was misleading and of no moment. This finds expression in the celebrated case of MACFOY V. UNITED AFRICA COMPANY LIMITED (1962) 3 ALL ER 1160 where LORD DENNING opined that:
“You cannot put something on nothing and expect it to stay there, it would collapse.”
The law is now settled that where a wrong Law or Decree is cited pursuant to the dismissal or termination of one’s appointment or employment and the authorities involved so acted on that premise in dismissing the person concerned, the purported dismissal would amount to nothing since the foundation upon which the dismissal was made was faulty.
Again, on another score, the Apex Court in the case of ULEGEDE & ANOR V. MILITARY ADMINISTRATOR, BENUE STATE (2000) FWLR (PT. 22) 981 AT 996-997 opined that:
“It is now well established that in order for a given dismissal, termination or retirement to come under the purview of the Public Officers (Special Provisions) Act, 1990 Cap. 381, the Letter conveying such dismissal, termination or retirement to the affected persons must be signed by either the Head of Government i.e the Governor, Military Governor or Administrator as the case may be, as the appropriate authority under the Act, or any other person authorized or directed by him. In the instant case, the letter of retirement served on the Appellant was signed by one Engineer S. N. Tarsabo, and not by the appropriate authority (i.e Military Administrator himself). It becomes necessary therefore for the Respondents who were defending the said retirement to tender some evidence usually a Letter from the Government, Ministry or Department concerned to retire the person. Such a letter would provide a nexus between the appropriate authority and the person who issued the Letter of termination or retirement.”
Again, the Law Lord of the Apex Court per KARIBI-WHYTE, JSC in the case of HON. JUSTICE KALU ANYAH & ORS V. DR. FESTUS IYAYI (1993) LPELR-510 (SC) opined that:
“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 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 34 SC. 47.”
Accordingly, Section 4 (2) of the Public Officers (Special Provisions) Act, Cap 381 Laws of the Federation of Nigeria, 1990 provides as follows:
“In the operation of this Act, the appropriate authority –
(a). In respect of any office which was held for the purpose of State, shall be the Military Governor of that State, or any person authorized by him; and
(b). In any other case, shall be the President or any other person authorized by him or the Armed Forces Ruling Council.”
Flowing from the above, there is no doubt that the Benue State Executive Council or Chairman Civil Service Commission were not the appropriate authorities to dismiss the Appellant as enshrined in the Act. Again, assuming the proviso “any person authorized by him” would suffice, there was absolutely nothing to support the fact that the Benue State Executive Council or Chairman Civil Service Commission were authorized by the Military Administrator to dismiss the Appellant. Thus, there is no instrument to validate such purported authorization.
Consequently, it is instructive to assert that the trial Judge was wrong to have amended Decree No.17 of 1983 to Decree No.17 of 1984. This is particularly so because as an unbiased umpire, he ought to have decided the case on the merit rather than amending the case for the Respondents. See page 78 lines 28-31 of the Record/Judgment. In UCHA V. ELECHI (2012) 13 NWLR (PT. 1317) 330, the Apex Court held that:
“A Judge is to descend from his heavenly abode, no lower than the tree tops, to resolve earthly dispute and return to the Supreme Lord. His duties entail examining the case as presented by the parties in accordance with the standards well laid down. Where a Judge abandons that duty and starts looking for irregularities in electoral documents, investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.”
From the foregoing, it is my considered view that the principle of “qui facit per alium facit per se” being a Latin Maxim which stipulates that he who does an act through another is deemed in law to do it himself is not applicable to Decree No.17 of 1983 on the ground that such Decree was never in existence. This is particularly so the principle is only applicable to Decree No.17 of 1984. This issue is resolve in favour of the Appellant against the Respondents.
Accordingly, this appeal is meritorious and is hereby allowed.
The judgment of the trial Court delivered by Hon. Justice T.U.F PUUSU on the 17th day of April, 2002 is hereby set aside. Consequently, all the reliefs sought by the Appellant in the lower Court are hereby granted. Parties are to bear their respective costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother HON, JUSTICE IGNATIUS IGWE AGUBE, PJCA. I agree entirely with the reasoning and conclusion arrived therein, that the appeal has merit and be allowed. I also allow same and dismiss the judgment of the trial Court delivered by HON. JUSTICE T.U.F. PUUSU on the 17th day of April, 2002.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I completely identify with him that this appeal is imbued with merit and I hereby set aside the decision of the trial Court in like terms as the lead judgment. Just for purpose of emphasis, I wish to state that it is a settled principle of law that a Court cannot act on speculation nor rely on a non-existing law. There must be evidence or relevant laws on which the Court would base judgment. See the case of NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (2010) LPELR-201S(SC).
The crux of this issue is whether Decree No.17 of 1983 is applicable to the dismissal of the Appellant from his employment. The Letter of Dismissal was couched by the Chairman, Civil Service Commission, Benue State, dismissing the Appellant from employment based on Decree No.1 7 of 1983 which is a non-existent law. Even the Respondents conceded to the fact that there is no law known as Decree No17 of 1983 and that such cannot be found in the Statute Books. Thus, since Decree No.17 of 1983 did not exist and was never in existence, the purported action of the Respondents in dismissing the Appellant under a non-existing Law/Decree was invalid and a nullity.
It is trite that one cannot put something on nothing and expect it to stand. No! It would simply collapse like a pack of cards. See the case of BENJAMIN LEONARD MACFOY V. LIMITED (1962) AC 152, and NERC V. ADEBIYI & ORS (2017) LPELR-42903(CA), therefore, if a dismissal letter was based on a non-existing law, it becomes a nullity hence, it is as good as though it never existed being void ab initio.
Flowing from the above, it was wrong for the trial Court to hold that Decree No. 17 of 1984 was the applicable law with regard to the Appellant’s dismissal. I too find that the appeal is meritorious and therefore allowed.
Appearances:
Ocha P. Ulegede Esq., For Appellant(s)
M.E Ojeh Esq., For Respondent(s)