NATIONAL ELECTRIC POWER AUTHORITY VS J. A. OSOSANYA & ORS.

NATIONAL ELECTRIC POWER AUTHORITY VS J. A. OSOSANYA & ORS.

(2004) LCN/3214(SC)

In the Supreme Court of Nigeria

Thursday, May 13, 2004


Case Number: SC. 17/2002

 

JUSTICES:

S. M. A. BELGOREU. MOHAMMED

A. I. IGUH

A. O. EJIWUNMI

D. MUSTLAPHER

 

APPELLANTS

NATIONAL ELECTRIC POWER AUTHORITY

 

RESPONDENTS

J. A. OSOSANYA & ORS.

 

RATIO

WHEN A JUDGMENT RESULTS IN A MISCARRIAGE OF JUSTICE

”A decision of a court is perverse when it ignores the facts or evidence before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate court is bound to interfere with such a decision and to set it aside.’‘ Per IGUH, J.S.C

LETTER OF TERMINATION OF APPOINTMENT 

”In deciding whether a public officer was dismissed or terminated on the authority or directive of the appropriate authority, the court must go beyond the four walls of the letter of dismissal. This is because it cannot be ruled out that an officer in a Ministry may write a letter of dismissal or retirement, purportedly acting on the authority or directive of the appropriate authority or directive given or, where such authority had, in fact, been given, he might not have recited it in the ultimate letter of dismissal/retirement due, perhaps, to faulty draftsmanship.” Per IGUH, J.S.C

PROVING THAT A TERMINATION OF APPOINTMENT WAS APPROPRIATE

The reference or non-reference to Decree No. 17 of 1984 in the instrument terminating the appointment of a public officer or removing him from office is not conclusive on the question of whether the act of termination or dismissal had indeed been carried out in accordance with the provisions of the Decree. What is decisive is that there must be evidence to satisfy the court that the decision to terminate or dismiss the public officer was taken by the appropriate authority.’‘ Per IGUH, J.S.C

 

 

ANTHONY I. IGUH, JSC. (Delivering the Judgment by the Court):

This is an appeal against the judgment of the Court of Appeal, Lagos Division, which had on the 28th day of September, 2000 dismissed two consolidated appeals by the defendant from the decisions of Jinadu, J. of the Federal High Court, Lagos delivered on the 2nd day of February, 1996 and the 23rd day of April, 1997 respectively. The Court of Appeal had affirmed the decisions of the trial court and held that the Federal High Court had jurisdiction to hear and determine the two suits instituted by the respondents, as plaintiffs/applicants, against the defendant, herein the appellant.

The suits challenged the termination/ dismissal of the appointments of the respondents by the appellant pursuant to the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984, hereinafter referred to as “Decree No. 17 of 1984.”

The plaintiffs/applicants, 271 in all, had filed two actions in representative capacities challenging their respective termination/dismissal from the defendant’s employment. The claims, in substance, are for the reinstatement of the plaintiffs and the nullification of their respective termination/dismissal. In the first action, the first set of plaintiffs claimed as follows:

“(1) A declaration that the purported termination of the applicants’ appointment, conveyed by the respondents’ letters dated the 10th day of August 1994 or sometime thereafter is wrongful, null and void and of no effect whatsoever and howsoever.

(2) An order reinstating the applicants herein as bona fide staff of the National Electric Power Authority.

3) An order of perpetual injunction restraining the respondent whether by itself, servants, agents and/or privies from further acting and/or implementing the contents of the letters dated the 10th of August 1994 or sometime thereafter in any manner whatsoever and howsoever.”

In the second action, the rest of the plaintiffs claimed against the defendant thus:

“(1) A declaration that the purported dismissal of the applicants conveyed by the respondent’s letters dated 10th of August 1994 or sometime thereafter is wrongful, null and void and of no effect whatsoever or howsoever.

(2) An order reinstating the applicants herein as bona fide staff of the National Electric Power Authority.

(3) An order of perpetual injunction restraining the respondent whether by itself, servants, agents and/or privies from further acting and/or implementing the contents of the letters dated 10th August 1994 or sometime thereafter in any manner whatsoever.”

The main ground for these actions is that the plaintiffs’ fundamental right to fair hearing was alleged to have been breached by the defendant in the matter of their termination/dismissal from the employment of the defendant Authority. In response to both suits, the defendant on the 6th day of February, 1995 filed Notices of Preliminary Objection contending, inter alia that the termination/dismissal of the plaintiffs were carried out pursuant to the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 which at all material times ousted the jurisdiction of the trial Federal High Court to entertain the suits. In the affidavit in support of its Notices of Preliminary Objection, the defendant deposed that the plaintiffs were employed by the defendant Authority at various times between 1977 and 1994. As a result of some trade dispute, the plaintiffs organised themselves and formed what they called Workers Welfare Association, (WWA) for short. When they were poised for a strike action, the Ministry of Labour and Productivity pointed out to them that any strike action would be illegal as the Union was not registered. When it became clear that the WWA were not ready to yield any ground, the defendant mobilised its top Management staff to man key positions in all the defendant’s Power Stations. On the 5th August, 1994, the defendant claimed that members of the WWA called out workers on strike, forced their way into some of the defendant’s Power Stations, damaged some of the defendant’s equipment in the process and thereby threw some parts of the country into total darkness.

It asserted that the illegal activities of the plaintiffs were reported to the then Head of State, Commander-in-Chief of the Armed Forces of Nigeria who directed by his letter of the 8th August, 1994 that the plaintiffs’ appointments with the defendant be terminated/dismissed forthwith pursuant to his powers under Decree No. 17 of 1984. The defendant in its Notices of Preliminary Objection exhibited the letters signed by the then Head of State, Commander-in-Chief of the Armed Forces of Nigeria, General Sani Abacha by which he authorised the termination/ dismissal of the plaintiffs and mandated the Hon. Minister of Power and Steel or any officer of the defendant Authority to sign the appropriate termination/dismissal letters. The names of all the plaintiffs were set out in the termination/dismissal list.

Arguments were duly heard by the trial court from learned counsel for both parties. For the defendant, it was argued that the jurisdiction of the trial Federal High Court was ousted by the said Decree No. 17 of 1984 under which the appointments of the plaintiffs were terminated/dismissed. In opposing the application, learned counsel for the plaintiffs submitted that the appointments of the said plaintiffs were not terminated pursuant to Decree No. 17 of 1984 and that the invocation of the Decree was an after thought.

In a considered ruling, Jinadu, J. dismissed the Preliminary Objections and held that the termination/dismissal of the plaintiffs were not in accordance with the provisions of the said Decree No. 17 of 1984. He observed

“But the crux of the matter is — did the writer of the dismissal/termination letter write the letter, exhibit JA.06, in strict compliance with the provisions of Decree No. 17 of 1984. I am afraid the answer is in the negative. Although Mr. Kida is an officer of NEPA to whom the Head of State’s power under the Decree was delegated, he chose not to act under the Decree. Instead paragraph 1 of exhibit JA 06 clearly shows that he acted on behalf of the “management” of the Authority, NEPA. Clearly, management of NEPA is not an appropriate authority under section 4(2) (b) of Decree No. 17 of 1984. This is the only reasonable interpretation that can be given to the contents of exhibit JA 06 in the circumstances.”

He then concluded:

“Having regard to all the above, I find and hold that the plaintiffs herein have not been dismissed or their appointments terminated under the provisions of Decree No. 17 of 1984. Therefore this court is not divested of its jurisdiction to hear and determine this matter on its merits. This court therefore has jurisdiction to hear and determine this case and the application of the respondent is hereby dismissed.”

Dissatisfied with this decision of the trial court, the defendant lodged appeals against the same to the Court of Appeal, Lagos Division. The Court of Appeal in a unanimous judgment on the 28th day of September, 2000 dismissed the appeals and affirmed the decisions of the trial court. It stated thus –

“In the instant case, apart from the letter of termination the contents of which I have reproduced above, there is no other material linking the termination with the exercise of any power under Decree No. 17 of 1984. Can I therefore hold that there was evidence to satisfy the court that the decision to terminate the appointments of the plaintiffs/respondents was that of the appropriate authority? While I have no hesitation in saying that the Honourable Minister of Power and Steel could lawfully delegate the signing of the letters of termination/dismissal to any officer of NEPA by virtue of Exhibit PE1, there must be clear evidence that such an officer in signing the letter of termination was acting under the authority and directive of the appropriate authority. There is no such evidence here. The letter of termination referred to cannot be linked with the Minister.”

PAGE| 6

Aggrieved by this decision of the Court of Appeal, the defendant has further appealed to this court. I shall hereinafter refer to the defendant and the plaintiffs in this judgment as the appellant and the respondents respectively.

Two grounds of appeal were filed by the appellant against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.

The two issues distilled from the appellant’s grounds of appeal set out on its behalf for the determination of this court are as follows:-

“1. Whether the learned Justices of Appeal were right in holding that the dismissal/termination letters of the Respondents did not emanate from the appropriate authority, in this case the then Head of State, Gen. Sani Abacha.

  1. Whether the learned Justices of the Court of appeal were right in holding that the letters of dismissal/ termination of the Respondents were not written pursuant to Decree No. 17 of 1984.”

The respondents, for their part, also submitted two issues for the determination of this appeal. These are as follows:

“1. Whether the Respondents’ employments were terminated by the Appellant pursuant to the Public Officers (Special Provisions) Decree No. 17 of 1984.

  1. Whether the learned Justices of the Court of Appeal were right in holding that the dismissal/termination letters issued to the Respondents were not written pursuant to Public Officers (Special Provisions) Decree No. 17 of 1984 and that as such the trial court had jurisdiction to entertain the Respondents’ claim”

I think both sets of issues are substantially identical and cover the same field that it would make no difference which of them is considered in the resolution of this appeal. For the avoidance of doubt however, I shall adopt the issues formulated by the appellant in my determination of this appeal.

At the oral hearing of the appeal, both learned counsel for the parties adopted their respective briefs of argument and briefly proffered additional submissions in amplification thereof.

The main argument of learned leading counsel for the appellant, Dr. B. A. Ajibade is that when the termination or dismissal of a public officer is shown to have been done with the approval of the appropriate authority or any person authorised by him, the court will have no option but to decline jurisdiction in the light of the provisions of Section 3(3) of Decree No. 17 of 1984. In this regard he relied on the decisions of this court in Ebohan V. Attorney-General Edo State (1997) 5 N.W.L. R. (Part 505) 298 and Anya V. Iyayi (1993) 7 N.W.L.R. (Part 305) 290. He urged the court to allow this appeal and to uphold the appellant’s preliminary objection, set aside the decisions of the trial court and the court below and hold that the trial court lacks jurisdiction to entertain the respondents’ suits. Learned leading counsel for the respondents, Mr. J. Ogunye, on the other hand, submitted that it was Management of the appellant that terminated/dismissed the respondents and not the Appropriate Authority under Decree No. 17 of 1984. He contended that the respondents’ letters of termination and/or dismissal are clear on the point. He referred the court to the decision in Ulegede V. Military Administrator Benue State (1996) 6 N.W.L.R (Part 457) 717 and argued that in-as-much-as it was the Management of the respondent that carried out the termination/dismissal exercise, the invocation of Decree No. 17 could hardly arise.

He therefore submitted that both courts below were right in holding that they had jurisdiction to entertain the suits.

A careful study of the two issues formulated by the parties respectively for the resolution of this appeal does clearly disclose that they are closely interrelated and that they revolve entirely on the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984. As the court below rightly put it:-

“The simple and narrow point for determination in this appeal is whether in dispensing with the employment of the plaintiffs/ respondents under Decree No. 17 of 1984, there is clear evidence of full compliance with the provisions of that Decree.”

It then went on: –

“Once there is an incontrovertible evidence of compliance with the provisions of Decree No 17 of 1984 in the exercise of the power to dispense with the services of a Public Officer in a particular case, the court is precluded from delving into the reasons that underlined the exercise of the powers or from examining the validity of the action. In effect, once the procedure adopted in putting an end to the services of a Public Officer conforms strictly with the provisions of Decree No. 17 of 1984 that puts an end to the matter as no other thing should be enquired into.”

I will now proceed to consider the issues for resolution in this appeal.

It seems to me desirable for easy reference to set out the more relevant of the provisions of Decree No. 17 of 1984 in so for as the present appeal is concerned. Section 1(1) thereof provides as fol

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