B.A. SHITTA-BEY VS ATTORNEY GENERAL OF THE FEDERATION & ANOR (1998)

B.A. SHITTA-BEY VS ATTORNEY GENERAL OF THE FEDERATION & ANOR

(1998) LCN/2815(SC)

In the Supreme Court of Nigeria

Wednesday, June 17, 1998


Case Number: SC. 47/1992

 

JUSTICES:

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

EMANUEL OBIOMA OGWUEGBU,JUSTICE, SUPREME COURT

UTHMAN MOHAMMED

SYLVESTER UMARU ONU JUSTICE, SUPREME COURT

JUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT

 

APPELLANTS

B.A. SHITTA-BEY

 

RESPONDENTS

ATTORNEY GENERAL OF THE FEDERATION

FEDERAL CIVIL SERVICE COMMISSION

 

RATIO

FORMULATION OF ISSUES FOR DETERMINATION

“It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this court, must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal.” “…that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal.”- per Onu, JSC.

WHEN CAN THE ISSUE OF JURISDICTION CAN BE RAISED

“The question of jurisdiction can be raised at any time or stage in the proceedings or on appeal as a substantive point of law being mindful of the fact that any defect in jurisdiction is fatal to the whole proceedings and the judgment obtained thereby is a nullity.”- per Onu, JSC.

 

S.U.ONU, JSC. (Delivering the Judgment of the Court):

The appeal herein which concerns the ouster of jurisdiction of courts under a Decree of the Federal Military Government of Nigeria is against the judgment of the Court of Appeal holden  in Lagos and delivered on the I0th day of May, 1991 (Coram: Babalakin, JCA., as he then was and concurred in by Awogu and Kalgo, JJCA.)

The genesis of the appeal is that the appellant as plaintiff had sued the respondents then defendants, in the High Court of Lagos State presided over by Segun, J. The claim therein was succinctly for a declaration that the decision of the respondents to retire him (appellant) from the Federal Civil Service of Nigeria (with the letter issuing forth from 2nd respondent) Ref. No. FC. 0017/Vol. VIII/969 of 14th January, 1986 (Exhibit B) which was preceded by an earlier one from the President and Commander-in-Chief of the Armed Forces – Exhibit A to 2nd respondent) notice of which was given in the statement of defence, was irregular, illegal, null and void.

By a notice of preliminary objection, the respondents contended that the trial court lacked jurisdiction to hear the appellant’s claim. The High Court in a considered ruling dismissed their objection as lacking in merit. Whereof, the respondents being aggrieved, appealed to the Court of Appeal (hereinafter referred to as the court below) which in a well considered judgment, allowed the appeal. It is against the latter judgment that the appellant has now appealed to this court on nine grounds contained in a notice of appeal dated 29th July, 1991.

Briefly stated, the facts of the case as proffered by the appellant, are that he was first appointed to the post of a Crown Counsel in 1961; that he had earned series of promotions in his civil service career as State Counsel Grade 1 in 1964; Senior State Counsel in 1966; Principal State Counsel in 1970; Legal Adviser in 1972 and Director on Salary Grade Level 16 by 1977. Thereafter, said he, he was promoted to the rank of Acting Director of Public Prosecutions of the Federation in November, 1985 – a post he held until by Exhibit B, he was abruptly retired from service. The appellant pleaded in his statement of claim to the effect that he wrote two letters to the 2nd respondent, both to which he received no response despite the failure in all his attempts at personal calls at its office. He finally averred in the penultimate paragraphs 19 to 21 of statement of claim thus:

“19. The plaintiff will also contend at the trial that the purported premature retirement from service was conceived and executed in very bad faith so as to frustrate the plaintiff’s acting appointment as the Director of Public Prosecutions of the Federation from being substantively confirmed by the Federal Civil Service Commission, the second defendant.

20. The plaintiff will contend that the purported premature retirement from the Federal Civil Service was misconceived by the perpetrators of the action which is illegal, unjustifiable, unfair and totally indefensible.

21. Whereof the plaintiff claims as per his writ of summons.”

After the respondents had categorically denied in their entirety paragraphs 1,3,6,9,12,13,14,15,16,17,18,19,20 and 21 of statement of claim, they averred in paragraphs 8-10 of the statement of defence as follows:

“8. The defendants will further contend that the retirement of the plaintiff by the appropriate authority as stated in paragraph 7 above was in turn conveyed to the plaintiff by a letter dated 14th January, 1986 from the Federal Civil Service Commission. The defendants will rely on this letter and all other relevant documents at the trial of the action.

9. In answer to the claim or declarations sought by the plaintiff, the defendants will raise by way of preliminary objection on point of law on or before the trial, the following issues:-

(i) The court has no jurisdiction to entertain this suit by virtue of the provisions of Section 3 of the Public Officers (Special Provisions) Decree 1984 No. 17.

(ii) The defendant in addition to the above will further contend that by virtue of the provisions of Section 5 of the Constitution (Suspension and Modification) Decree 1984 No.1 as amended, this action is void and it shall be so declared.

(iii) By virtue of the provision of Decree No. 13 Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984, no decision of any court will avail the plaintiff.

10. Whereof the defendants contend that the plaintiff’s action is frivolous, vexatious, speculative and an abuse of the court’s process and should be dismissed with substantial cost.”

Acting pursuant to the rules of this court, the parties filed and exchanged briefs of argument. While the appellant in his brief argued (contrary to the rules governing brief-writing) the grounds, the respondents in their brief submitted two issues as arising for the determination of this court. The argument by the appellant of the grounds of appeal is wrong. Since the art of brief-writing has been in practice in this court for upwards of two decades, issues and not grounds should be argued.

It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this court, must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal, See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 A-B; Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137 at 148E; Momodu v. Momoh (1991)1 NWLR (Pt. 169) 608 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. The above proposition is complemented by another which states that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal Chinweze v. Masi (1989) 1S.C.(Pt.II)33,1 NWLR (Pt. 97) 254 and Opebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313. (Parenthesis are supplied by me).

Hence, as this court had occasion to poignantly point out in Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 421 “in framing issues for determination the proper procedure is to argue issues and show how they relate to the grounds ….” See also Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. Irrespective of what the rules of court enjoin, on 18th May, 1998 when this appeal came up for hearing before us, the appellant relied on his brief by indicating that he would argue these nine grounds of appeal as contained in his brief of argument. The learned Senior State Counsel for her part and on behalf of the respondents, adopted her brief in which, rightly in my view, she identified two issues as arising for determination, to wit:

“1. Whether the Court of Appeal was right in holding that the jurisdiction of the  trial court to entertain this matter was properly ousted by the provisions of Section 3(3) of Decree No. 17 of 1984.

2. Whether the Court of Appeal was properly constituted while determining this matter.”

I take the view that the nine grounds framed by the appellant to attack the decision of the court below, were they to have been contracted into issues, would clearly and undoubtedly have overlapped and/or been concomitant with the respondents’ two issues set out above, with issue 1 covering grounds 1 to 8 and issue 2, ground 9 respectively.

All told, I deem these two issue as more precise and indeed enough to dispose of the matters in controversy in this appeal. I accordingly adopt the two respondents’ issues in my consideration of this appeal, the gravamen of whose complaint is pivoted on the purported retirement of the appellant from his civil service post for just or no just cause and which can, in my opinion, be decided on that single issue of whether such removal is illegal, unjustifiable, unfair and totally indefensible. Such issue in my firm view, is that epitomised in the respondents’ issue No. 1 and not that in all or any of the eight grounds (1-8) of appeal which are unduly repetitive and prolix. Equally, my opinion is that appellant’s ground 9 covers the respondents’ issue 2 which is adequate to dispose of the matter in controversy raised therein. This is why my consideration of this appeal, I do not hesitate for a moment in adopting the respondents’ issues 1 and 2 to aid me in my consideration of the appeal.

Before going into the merits of this appeal, however, I deem it pertinent, firstly, to consider albeit briefly, the issue of jurisdiction. As decided by this court in Obikoya v. Registrar of Companies & Anor (1975) 4 SC 31 at 34/35.

“….. the existence or absence of jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial Judge’s decision or order in respect of the relevant subject-matter.”

See also Ezomo v. Oyakhire (1985) 2 SC .260;(1985) 1 NWLR (Pt.2) 195 and Nwafia v. Ububa (1966) NMLR 219 at 221.

The question of jurisdiction can be raised at any time or stage in the proceedings or on appeal as a substantive point of law (See Bronik Motors Ltd. & Anor v. Wema Bank Ltd. (1983) 1 SCNLR 296;(1985) 6 NCLR 1; (1983) 6 SC. 158 at 273 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, being mindful of the fact that any defect in jurisdiction is fatal to the whole proceedings and the judgment obtained thereby is a nullity. See Gabriel Madukolu v. Johnson Nkemdilim (1962) 1 All NLR (Pt. 4) 587; (1962) 2 SCNLR 341. Thus, stressing the importance of jurisdiction, Bello, CJN said in Utih & Ors v. Onoyivwe & others (1991) 1 NWLR (Pt. 166) 166:-

“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”

Obaseki, JSC., in Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617 at 625 had this to say:

“Whenever the question of jurisdiction of any court is raised, it is a question that touches the competence of the court that is raised. It does not raise any issue touching the rights of the parties in the subject matter of the litigation or dispute. Indeed, in our jurisprudence, only a court of competent jurisdiction can adjudicate on issues touching the rights of the parties. A court that has no jurisdiction to entertain the matter before it cannot exercise judicial powers in respect of that matter. Any such exercise is a nullity and the proceedings and judgment as a result of that exercise are all null and void……”

See also Timitimi v. Amabebe & Ors. 14 WACA 374 and Teliat A.O. Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17 at 36 for the proposition that if a court has no jurisdiction to hear a matter any step taken in relation to the matter is void.

Thus, as decided by this court in Mrs Victoria Okotie-Eboh v. Adolo Okotie–Eboh (1986) 1SC 479; (1986)1 NWLR (Pt. 16) 264 jurisdiction cannot be acquired by consent of parties nor can it be enlarged by estoppel.

Having examined the principles concerning jurisdiction-when to raise it, its strategic importance in proceedings before the courts and its effect when raised, the two issues I had hereinbefore indicated, I will consider them in their order of sequence as follows:-

ISSUE NO. I

On 18th May, 1998 when this appeal came up for hearing the appellant appearing for himself and learned Senior State Counsel (Mrs. Onuogu) for the respondents both adopted and elaborated on their respective briefs. The appellant in addition, applied and was granted leave to tender a certified true copy of proceedings in suit No. CA/L/137/89 before the Court of Appeal dated 10 May, 1991 and it was received as Exhibit SC 1.

The question posed in issue 1 (which is similar to issue 1 raised in the court below and resolved against the appellant) is, whether the court below was right in holding that the jurisdiction of the court to entertain the appellant’s action was properly ousted by the provisions of Section 3(3) of the Public Officers (Special Provisions) Decree No. 17. I shall in the rest of this judgment refer to the latter Decree as Decree No. 17 of 1984 simpliciter .

Now, Section 3(3) of Decree No. 17 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 act and if any such proceedings have been or are instituted before, on or after the making of this Act, the proceedings shall abate, be discharged and made void”

For the jurisdiction of the trial court to be said to have been properly ousted in this case, the appellant must have been retired by the appropriate authority and his retirement must fall within the provision of Decree No.17 (ibid). Who, one may then ask, is the appropriate authority? The term appropriate authority has been defined in a number of judicial decisions of this court as well as in Decree No. 17 of 1984. Section 4(2) of Decree 17 states:

“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 authorized by him; and

(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.”

It is common ground that prior to his retirement, the appellant was director (Acting Director of Public Prosecutions to be precise) in the Federal Ministry of Justice. Section 4(2) (ii) above therefore properly or appropriately applies to him, having served in an office which he held under the aegis of the Federal Government. And as to who is or is not an appropriate authority two decisions of this court clearly illustrate this, namely:

(i) In Wilson v. Attorney General of Bendel State (1985) I NWLR (Pt.4) 572, a case of unlawful dismissal in which the single issue was whether in purporting to dismiss the appellant, the Civil Service Commission is an “appropriate authority” by the combined effect of the provisions of Act No. 37 of 1968, Act No. 10 of 1976 and Act No 18 of 1977, which oust the jurisdiction of the court to inquire into the validity of the purported dismissal, this court held inter alia:

“The appropriate authority” – which means either the Military Governor himself or any other person whom he has clearly and specifically authorized to act in that behalf.”

The above decision was upheld in another unanimous judgment of this court in Garba v. Federal Civil Service Commission (1988) I NWLR (Pt. 71) 449, where it was held that:

“Even if the action of the respondents had come within the period of operation of the Decree and within the act protected by the Decree, the respondents not coming within the definition of ‘appropriate authority’ cannot avail themselves of the protection of the Decree: Wilson v. A. G. of Bendel State (1985) I NWLR (Pt. 4) 572 applied.”

Although the above two cases dealt with offices undoubtedly held under a State Government, the definition is unquestionably applicable to an office held under the Federal Government where the appropriate authority accordingly becomes the Head of Federal Military Government (President) or Head of State or any person authorized by him or the Supreme Military Council (later Armed Forces Ruling Council) vide Section 4(2) (ii) of Decree No. 17 of 1984 (ibid). The appropriate authority to retire the appellant therefore is, in my opinion, the Federal Military Government personified in the Head of State who, before he could be said to have acted properly, must be doing so in respect of a public officer. For the retirement of the appellant to be said to be proper, his designation must fall within the definition of a public officer. In this regard, Section 4(1) of Decree No. 17 of 1984 stipulates:

“In this Decree, ‘public officer’ means any person who holds or has held any office on or after 31 st 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.”

The Constitution of the Federal Republic of Nigeria (hereinafter referred to as the 1979 Constitution) defines public service in Section 277 as “The service of the Federation in any capacity in respect of the Government of the Federation.”

See also Section 18(1)(b) of the Interpretation Act, 1964 where the term “public officer” is defined to mean “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State.”

From the foregoing, the appellant having been shown to have held office as a Director in the Federal Ministry of Justice until he was retired on the 14th day of January, 1986 by the receipt of the letter written to him, to wit: Exhibit B by the 2nd respondent, comes within the definition of a public officer under Decree No. 17 in Section 1(1) as well as under the 1979 Constitution. See F.S. Uwaifo v. Attorney General of Bendel State (1982)7SC 124; (1983) 4 NCLR I. For purposes of clarity, Exhibit ‘B’ is couched in the following terms:

“Retirement in the Public Interest

  1. I write to convey to you Government’s decision to retire you from the service in the public interest with effect from the 14th January, 1986.
  2. I also wish to take this opportunity to thank you for the service you rendered to the Federal Civil Service and to wish you prosperity in all your endeavours in your retirement.
  3. It is usual on such an occasion to remind you to please hand over all Government property in your possession.

Yours faithfully,

(Sgd) S.B. Agodo

Permanent Secretary.”

Be it noted that Exhibit ‘B’ above was written by the 2nd respondent to the appellant after 2nd respondent’s Chairman had received a letter (Exhibit ‘A’) from the Secretary to the Federal Military Government. Exhibit ‘A’ which the appellant had argued strenuously does not constitute admissible evidence set out in full, showeth:

“Cabinet Office

P.M.B.12571

Lagos.

10th January, 1986.

Secretary to the Federal Government

Ref No S.F.M. G. 39/S.I/Vol. iv/257

Alhaji Bagudu Shettima,

Chairman,

Federal Civil Service Commission,

Federal Secretariat, Phase II,

Ikoyi.

Retirement in the Public Interest

The President, Commander-in-Chief of the Armed Forces, Major-General Ibrahim Babangida C.F.R., has directed that the following officers be retired from the service in the public interest with immediate effect:–

  1. I.I.Iyeyemi, Accountant-General Federal Ministry of Finance.
  2. C.C.E.Ugbodaga,Administrative Officer 1 Ministry of Industries.
  3. B.A. Shitta-Bey, Director, Federal Ministry of Justice.
  4. A. Ahmadu, Director of Prisons, Ministry of Internal Affairs.

Sgd (G.A.E. Longe C.F.R

Secretary to the Federal Military Government.”

It is crystal clear that appellant’s retirement contained in item 3 of Exhibit ‘A’ above was a direct act of the President who himself was the appropriate authority empowered to retire under Decree No. 17 of 1984. True it is that it was the Secretary to the Federal Military Government that signed it and not the Head of the Head of the Federal Military Government himself. The reason for this cannot albeit be far-fetched since Section 6(3) of the Constitution (Suspension and Modification) Decree, 1984 provides:

“The executive authority of the Federal Republic of Nigeria may be exercised by the Federal Military Government whether direct or through persons or authorities subordinate to him.”

Also Section 12(1) of the same Decree (ibid) provides:-

“The Head of the Federal Military Government may, subject to such conditions as he may think fit delegate any function conferred on him by any law (including the Constitution of the Federal Republic of Nigeria,1979) to the Federal Executive Council or to any other authority in Nigeria, provided that this subSection shall not apply to the function of signing Decrees.”

As this court (per Nnaemeka-Agu, JSC.,) in Nwosu v. Imo State Environmental Sanitation Authority (1990) (supra) at page 719 in respect of a State Military Governor, stated:-

“Albeit Section 6(9) of the Constitution (Suspension and Modification) Decree No. I of 1984 gave a constitutional stamp to the power of a Military Govern or to perform his executive functions either directly or through persons or authorities subordinate to him. It provides…….”

Earlier on in his judgment, the learned Justice at page 718 of the report said:–

“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 aliun facit perse. It was expressed in CO Littleton 258(a) thus: Qui per alium facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself)”

Be it noted that the above maxim has been applied in the execution of many official acts and directives, particularly by high functionaries of government. Thus, the learned author Wade, in his book: Administrative Law, 3rd Edition, page 67 said:

“Although therefore the courts are strict in requiring that statutory power shall be exercised by persons on whom it is conferred any by no one else, they make liberal allowance for the working of the official hierarchy 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 or (administrator) would not.” (Parenthesis mine).

It follows therefore, in my opinion, that it is even more unrealistic or absurd to imagine that the President and Commander-in-Chief of the Armed forces cannot enjoy the privilege of having his documents signed by his Secretary. For instance, the appellant in his brief made heavy weather about the need to have admissible evidence in order to resolve the so-called conflicting claims as to who directed the retirement of the appellant. As has been amply demonstrated earlier on, there is no doubt that the President directed the retirement of the appellant from the contents of Exhibit A. As Nnaemeka-Agu, JSC., stated the law in Nwosu v. Imo State Environmental Authority (supra) at page 718:

“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.”

In which case, documents attached to an affidavit as in the instant case, constitute admissible evidence. In view of the above pronouncement, I am of the firm view that the appellant cannot be right in thinking that inspite of the unequivocal statements made in each of Exhibits ‘A’ and ‘B’, particularly Exhibit A, there is still need to have admissible evidence.

The appellant further argued that his retirement did not fall within the provisions of Decree No. 17 of 1984 since he did not fall within the category of officers specified in Section 1(I) thereof who can be removed by the appropriate authority. A cursory look at the title of the Decree depicts it as stating ‘Public Officers (Special Provisions) Decree, 1984’. As the title suggests, it applies to all public officers, in which case, any public officer could be removed under the Decree. The law, as it stands now therefore, admits of two ways of removing public officers- firstly through the normal civil service method or through Decree No. 17 of 1984.

As Nnaemeka-Agu, JSC., had occasion to explain in clearer and unambiguous language in Nwosu’s case (supra) at page 725:

“….  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 on a Military Governor to dismiss public officers. It was promulgated on the 27th 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 the promulgation of the Decree would be deemed to have been dealt with under the Decree. In the circumstance, I believe it would be unreasonable … to hold that persons similarly dealt with since the promulgation of the Decree cannot be deemed to have been 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 appellant’s contention that Decree No.17 of 1984 does not give anybody arbitrary powers to remove public officers overlooks the fact that the Decree invests in the Head of the Federal Military Government as appropriate authority with special powers to carry out this function. Although such powers have been said to be drastic and unpopular, in the words of Nnameka-Agu. JSC, in Nwosu’s case (supra), there is “no escape route.” If it is remembered that the Armed Forces Ruling Council, the maker of the legislation, is not a parliament and never pretended to be so, no matter how one construes the Decree, effect must be given to its provisions. Indeed, Decree No. 17 of 1984 spells out clearly what types of facts are covered by it. For instance, Section 1(1) of the Decree provides:

“The appropriate authority may at any time after 31st December, 1983-

(1) 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.”

In the case in hand, the act complained of by the appellant is his retirement by the appropriate authority which is well covered by sub-Section (ii) of Section I of Decree No. 17 (ibid). The appellant has argued in his brief that any act of the appropriate authority outside 31st December, 1983 and 27th June, 1984 when Decree No. 17 of 1984 was promulgated, is not automatically accepted to have been done under the Decree. There must be admissible evidence, he contends, to prove that the appropriate authority acted under the Decree. With due respect, the appellant’s argument is based on a misinterpretation of Section 1(2) of the Decree whose purport is to give it retrospective effect. While under our law there is a presumption against retrospectivity – see Adegbenro v. Akintola (1963) 1 All NLR 299;(1963) 2 SCNLR 216 at 301-302; Adeshina v. Lemonu & Ors (1965) 1 All NLR 233 and The SwissAir Transport Co. Ltd v. The African Continental Bank Ltd. (1971) 1 All NLR 37 at 45 and 46 -where, as in the instant case, a retrospective operation to Decree No. 17 of 1984 was clearly intended and spelt out, that legislation will not be declared incompetent vide Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 and Ojokolobo v. Alamu (1987 ) 3 NWLR (Pt. 61) 377 at 404. Indeed, in the case in hand, the retrospectivity propounded would appear clearly not to affect the pending proceedings before the law courts. See Uwaifo v. A.G. Bendel State (supra) and Eyesan v. Sanusi (1984) 1 SCNLR 353;(1984) 4 SC 115 at page 137. There is therefore no requirement under this Decree that any act done by the appropriate authority outside 31 December, 1993 and 27th June, 1984 must be proved. Decree No. 17 of 1984 is still a subsisting legislation; it was in existence at the time the appellant was retired in 1986; it is yet to be repealed and its existence must therefore be judicially noticed by all courts vide Section 74(I) (a) and (b) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. See also Adetipe v. Amodu (1969) 1 NMLR 62 at page 67 and Benson v. Ashiru (1967) 1 All NLR 184 at 185.

In both Exhibits A and B, it is unambiguously stated that the appellant’s retirement is in the public interest and this brings it under Section 1(1) (d) of Decree No. 17 (ibid) which provides:

“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 is not required by the Decree to state the reasons for his decision to retire a public officer under any of the sub-Sections of the Decree. The reason for his action is personal and therefore subjective. Although, admittedly, it is desirable to state the reason for the decision of the appropriate authority to act under the Decree, the Decree makes no such requirement imperative. As Nnaemeka–Agu, JSC., in the Nwosu case (supra) puts it, what is necessary is that the appropriate authority “should be satisfied from materials placed before him that he should act.” Nor by the demands of the Decree, is the appropriate authority required to set up a panel to examine the case. It is for this reason that the case in hand is distinguishable from the cases of Wilson v. Attorney General of Bendel State (supra); Garba v. Federal Civil Service Commission (supra) and Anya v. Iyayi (1988) 3 NWLR (Pt. 82) 359. In none of the above cases was the retirement in question that of the appropriate authority. In the present case which is on all fours with Nwosu’s case (supra), the retirement was the act of the appropriate authority and the provisions of Section 3(3) of Decree No. 17 of 1984 properly and effectively oust the jurisdiction of the trial court and I so hold.

Issue I is accordingly resolved against the appellant.

 

COUNSELS

B.A. Shitta-Bey , in person, for the Appellant.

C.I. Onuogu (Mrs.) Legal Adviser, Federal Civil Service Commission (with her, Okey Nwanba, Esq. Assistant Legal Adviser, Federal Civil Service Commission, for the Respondents.

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