Legalpedia Citation: (2014-05) Legalpedia (SC) 92011

In the Supreme Court of Nigeria

Fri May 9, 2014

Suit Number: SC.194/2005

CORAM

PARTIES

E. A. UTOMUDO APPELLANTS

MILITARY GOVERNOR OF BENDEL STATE & ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff and two others were charged at the Chief Magistrate Court Ekpoma, for Forgery of Road Worthiness Certificate No. 58546, conspiracy and stealing. While the matter was in court, the Plaintiff was purportedly dismissed from the service of Bendel State Government. The Chief Magistrate dismissed the charge, discharged and acquitted the Plaintiff. The Plaintiff thereafter instituted an action in the High Court, Benin City against the Defendants claiming a declaration that the purported dismissal from the Civil Service by a letter is null and void and of no legal effect and that he is entitled to his full remuneration and emoluments as a public servant in the Bendel State Civil Service. The learned trial Judge dismissed the suit on grounds of lack of jurisdiction to entertain the suit. The Plaintiff appealed to the Court of Appeal which in turn dismissed the appeal upholding the decision of the trial High Court. The Plaintiff, dissatisfied has come before the Supreme Court on appeal.

HELD

Appeal dismissed.

ISSUES

1. Were the Honourable Justices of the Court of Appeal, Benin City right in holding that the Appellant was dismissed from public office of Bendel State by the Military Governor pursuant to Decree No. 17 of 1984 and as a result dismissing Appellant’s appeal on the ground of lack of jurisdiction of the Court?

2. Whether the concurrent findings and decisions of the two courts below, trial and appellate, can be upset by this court?

3. Whether the Decree NO. 17 applied to actions commenced and pending before its commencement date?

 

RATIONES DECIDENDI

MILITARY GOVERNOR – CONDITIONS WHERE A MILITARY GOVERNOR CAN TERMINATE THE EMPLOYMENT OF A PUBLIC OFFICER

“Once a Military Governor is satisfied that a public officer has displayed inappropriate or infamous conduct, e.g. corrupt practices, etc, acting under Decree 17 of 1984, the Public Officers (Special Provisions) Decree, the Military Governor can dismiss, terminate, or retire the public officer, and the courts have no jurisdiction to inquire into what the Military Governor did. The disgruntled public officer cannot seek redress from the court even if his action was brought to court before the Decree came into force.” PER RHODES-VIVOUR JSC

JURISDICTION – IMPORTANCE OF JURISDICTION – WHEN IT CAN BE RAISED

“Jurisdiction is the life wire of a court as no court can entertain a matter where it lacks the jurisdiction to do so. Issue of jurisdiction can be raised at any time and even for the first time on appeal in this court.” PER OKORO JSC

CONCURRENT FINDINGS OF FACTS BY THE LOWER COURTS – GROUNDS FOR INTERFERENCE BY THE SUPREME COURT

“Concurrent findings of fact of both the trial Court and the Court of Appeal would not be disturbed by the Supreme Court except there are cogent and compelling reasons shown to justify disturbing the findings of fact, such as, where the findings cannot be supported by evidence or are perverse, patently erroneous, where there is a miscarriage of justice or not the result of a proper exercise of judicial discretion.” PER PETER-ODILI JSC

INSTRUCTIONS BY A MILITARY GOVERNOR OR CHIEF EXECUTIVE – WHETHER EVERY INSTRUCTION BY A MILITARY GOVERNOR TO THE SECRETARY TO THE MILITARY GOVERNMENT MUST BE IN WRITING TO RENDER EVIDENCE ON IT ACCEPTABLE

“It would not accord with normal official relationship to expect that every instruction given by a Military Governor or Chief Executive, for that matter, to the Secretary to the Military Government or other subordinates of his must of necessity is in writing to render evidence on it capable of acceptance. To hold otherwise, will be tantamount to ignoring Section 75 of the Evidence Act.” PER PETER-ODILI JSC

CONCURRENT FINDINGS OF FACT BY LOWER COURT – WHEN AN APPELLATE COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF FACT BY LOWER COURTS

“The Supreme Court will not disturb concurrent findings of fact of the lower courts unless appellant demonstrates special circumstances, warranting an interference with the findings.” PER ONNOGHEN JSC

“PUBLIC OFFICER” – DEFINITION OF”PUBLIC OFFICER”

The expression “Public Officer” has been defined in Section 7 (1) of the Public Officers (Special Provision) Decree NO. 10 of 1976 to include any person who holds or has held any office in the Public Service of a State etc. and is wide enough to comprehend and include both serving or retired officers, as well as officers who resigned or who were dismissed.” PER PETER-ODILI JSC

MILITARY GOVERNMENT – EFFECT OF THE RULE OF MILITARY GOVERNMENT

“Where there is a successful military coup Democratic Government no longer exists. The Executive and Legislature no longer function. The judiciary remains but with limited jurisdiction. The Constitution or parts of it are suspended. In its place are Decrees. The Military Government rules by Decrees. Decrees are superior to the Constitution. The jurisdiction of the courts to hear certain matters are usually taken away by provisions in these Decrees called ouster clauses. A gentle reminder that political power flows through the barrel of the gun”. PER RHODES-VIVOUR JSC

OUSTER OF JURISDICTION – SECTION 3(3) OF THE PUBLIC OFFICERS (SPECIAL PROVISIONS) DECREE

“By Section 3(3) of the Public Officers (Special provisions) Decree No. 17 of 1984, the trial court had no jurisdiction to entertain the matter, its jurisdiction having been ousted by the said Decree.” PER OKORO JSC

INTERPRETATION OF STATUTES – HOW THE WORDS OF A STATUTE SHOULD BE CONSTRUED

“Where the words in a statute are and free from any ambiguity they should be read and understood as they are without any embellishments.” PER RHODES-VIVOUR JSC

MILITARY GOVERNOR – POWERS OF THE MILITARY GOVERNOR IN RETIRING PUBLIC OFFICERS- WHETHER SUCH POWERS CAN BE DELEGATED

“The Military Governor is conferred with power under Decree No.17 of 1984 to dismiss, terminate, retire erring public officers in the Civil Service of the State and no court has jurisdiction to question such an act by the Military Governor. In exercising his powers he can delegate them if he so desires.” PER RHODES-VIVOUR JSC

ACTS OF THE MILITARY GOVERNOR – APPLICABILITY OF DECREE NO. 17 OF 1984 WITH RESPECT TO ACTS OF THE MILITARY GOVERNOR

“It was not mandatory for the Military Governor to expressly state when carrying out or doing an act that the act was done under the decree before the provisions of Decree No. 17 of 1984 can be said to apply. It is sufficient if the act was carried out or done within the contemplation of the said Decree. It is also my view that a directive by the Military Governor under the Decree which was carried out by another did not derogate from the provisions of the Decree.” PER OKORO JSC

INTERPRETATION OF WORDS – SUPERIORITY OF JUDICIALLY DEFINED WORDS OVER THE ORINARY MEANING

“In law words have their ordinary meaning if and only if no legal meaning has been attached to them. If any word or expression has been either statutorily or judicially defined, then, the legal meaning supersedes the ordinary meaning. When words have been legally or judicially defined, their ordinary meaning will surely give way to their meaning as legally or judicially defined. PER PETER-ODILI JSC

CASES CITED

Are V. Ipaye (1990) 2NWLR (PT.132) 298Anya V Iyayi (1993) 9 SCNJ 53.Attorney-General Lagos State V Dosunmu (1989) 2 NSCC 545Atuyeye V. Ashamu (1987) 1 NWLR (PT.49) 267.Chief Etuedor Utihe & Ors V. Jacob Umurhuru Onoyirwe & Ors (1991) 1 NWLR (PT 156) 766 ;(1991) 1 SC (PT. I) 61Ebohon V Attorney-General Of Edo State (1994) 6 NWLR (PT. 349) 190 at 213Enang V. Adu (1981) 11 -12 SC,25Eze V Spring Bank Plc (2011) 18 NWLR (PT. 1278) 113 at 135. F. A. Akinbobola V. Plisson Fisko Nigeria Ltd & Ors (1991) 1 NVVLR (PT.167)270.Federal Capital Development Authority V Sule (1994) 15 LRCN 221Garba V. Federal Civil Service 1988 VOL. 19 PT 1 NSCC P. 306Harka Air Service (Nig.) Ltd V Keazor (2011) 13 NWLR (PT. 1264) 320 AT 348Mobil V. FBIR 1977 3 SC P. 53Njoku V. Eme (1973) 5 SC 293, Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT. 135) 688 AT 733Omo V Judicial Service Commission (2000) FWLR (PT. 20) 698Shitta-Bey V Attorney-General Federation (1998) 10 NWLR (PT. 510) 302 AT 416Tariola V. Williams 1982 7 SC P. 27Wilson V Attorney-General Bendel State & Ors (1985) 16 NSCC (PT.L) P.191

STATUTES REFERRED TO

The 1979 Constitution of the Federal Republic of NigeriaPublic Officers Special Provisions Decree No. 17 of 1984Constitution and suspension and modification Decree NO. 1 of 1984

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