Mr A. S. Jombo (J.p.) V. Petroleum Equalisation Fund (Management Board) & Ors. (2005)
LAWGLOBAL HUB Lead Judgment Report
PATS-ACHOLONU, J.S.C.
The Synopsis of the case that gave rise to this appeal is that the appellant who was at one time a staff of the 1st respondent, had his appointment first terminated and later dismissed. He filed an action in the High Court seeking the reliefs of (a) Declaration that his termination was illegal, unconstitutional and therefore void,
(b) An order directing his reinstatement to the position he had hitherto held in the 1st respondent’s corporate body and,
(c) And directing that all his cumulative entitlements, salaries, and allowances be paid to him.
The appellant a former General Manager of the 1st respondent received an internal memo on the 16th February, 1998 in what was described as a dereliction of duty. On the 22nd February, 1998 he responded to the memo pointing out the latent problems assailing due performance in the institutional body and dutifully proffered possible solutions. On the 2nd of March 1998 a query was issued to him and this was promptly followed two days later by a suspension, and a committee was set up to investigate the allegations against him. In the same month, indeed to be factual on the 19th of March 1998, he was summoned to appear before the disciplinary committee set up by the 1st respondent on the authority and approval of the 2nd respondent. He appeared before the Committee on the 20th March, 1998 to answer to the summons. On the 28th of July, 1998 his appointment was terminated by a letter. Technically he ceased to be an employee of the 1st respondent after the termination. Three days after receiving the letter of termination, he filed an action in the Federal High Court challenging his termination. The 2nd respondent, interestingly, as though not to be beaten, by a letter of 21st April 1999 purported to dismiss him from the service of the 1st respondent. The effect of this, no doubt, is that the 2nd respondent under whom the appellant was not working was issued with the letter of dismissal from the service of the 1st respondent who had earlier terminated the service of the appellant who was its servant.
In the High Court, the issue of the jurisdiction having regard to the tenor and intendment of Special Provisions Decree No. 17 of 1984 (now rendered moribund by the Constitution of 1999) was raised. In that court, the learned trial Judge held that it lacked jurisdiction to entertain the case and accordingly the action was struck out. The appellant thereupon appealed to the lower court and the action was dismissed on the issue of lack of jurisdiction. The appellant therefore appealed to this court and framed two issues for consideration. The issues are as follows:
(i) Whether the Federal High Court was right to have declined jurisdiction in suit No. FHC/ABJ/CS/60/98 as held by the Court of Appeal.
(ii) Whether as in this case an employer can lawfully dismiss an employee during the pendency of an action by the employee filed in challenge of an earlier termination of his employment by the employer. The respondents on their own framed 2 issues more or less identical but in different words. Dealing with issue 1 the learned counsel for the appellant submitted that generally the courts have settled an important issue relating to a statutory provision that purports to or actually ousts the jurisdiction of the court. He referred to Anya v. Iyayi (1993) 7 NWLR (Pt. 305) p. 290 at 312 and argued that courts faced with the issue of interpreting ouster clauses tend to be strict as they invariably would affect a person’s fundamental right. During the military regime, this court took judicial notice of the fact that the Military Governments by their very nature of dictatorialism, and the use of imperial language in their numerous enactments, brooked no challenge and tended to remove the competence of the courts to examine their decrees. They frowned at attempts by courts to side-track or circumvent the operational of the dictates of their numerous laws which had ouster clauses. But, the courts imbued with the conscience to mete out justice that is in tune with civilized adjudication, and could stand the test of a living law in a modern society, tried to tamper the rigours of the ouster clauses by a resort to an interpretation that would be utilitarian.
Now section 1(1) of Public Officers (Special Provisions) Act states:
“Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that:
(a) ……….
(b) ………..
(c) …………
(d) the general conduct of a public officer in relation to the performance of his duties
has been such that his futher or continued employment in the relevant service
would not be in the public intrest.
(i) may 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.
Section 3(3) states:
“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.”
Who is the appropriate authority. The term appropriate authority is defined in section 4(2) of the Act as follows:-.
“(a) 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
(b) In any other case, shall be the President or any person authorized by him or the Armed Forces Ruling Council.
Was the letter of termination being complained against issued by the appropriate authority within the contemplation of the statute. Let me reproduce the letter of termination issued to the appellant on 28th July, 1998:
“1. I have been directed to convey to you this Ministry’s rejection of your withdrawal of resignation dated 22nd June, 1998.
- In view of the above, I have been instructed to convey to you the earlier decision of the Honourable Minister of Petroleum Resources of 6th May, 1998 to terminate your appointment from the services of the Petroleum Equalisation Fund with immediate effect.
3.This decision is based on the outcome of the report of the Investigation Committee which found you guilty of gross misconduct.
4.You are to hand-over all Government properties in your possession to the Executive Secretary of the Fund.”
The argument of the appellant is that even a mere bird’s eye view of the letter of termination issued to him does not show that it emanated from the appropriate authority. There are two points to be discerned from the argument proffered in issue No.1:
(i) Was the person who issued the letter of termination the appropriate authority,(ii)of what relevance was the letter of dismissal In other words can termination of appointment and dismissal co-exist at the same time. Termination of appointment is intended always to put paid to any job or assignment one is holding, or for the time doing. The issue of whether the person whose service is terminated accepts it or not does not arise. Even if the person whose appointment has been brought to an end by a letter of termination challenges it in court, that does not mean that the employer had any other intention other than to put an end to the job description held by the subject of the termination letter. The letter of termination did not state from whom the direction emanated. The appropriate authority as reflected in the statute was not named. Nothing prevents someone who does not like the face of an employee to hide under the ubiquitous ouster clause and the expression of “appropriate authority” to terminate the employment of someone. Where a law which has the feature of being punitive is a subject of interpretation, the court should launch out deeply (due in altum) into the forest of its jurisprudential knowledge and wisdom to give the matter a worthy and merciless scrutiny to ensure that in stricto sensu, its jurisdiction was taken away. It does not and should not merely wring its hands in desperation. In Okoroafor v. The Miscellaneous Offences Tribunal ( 1995) 4 NWLR (Pt.387) 59, 67, 70 I said in respect of ouster clauses which were then clustering the Military Government statute books;
“Courts are not frightened of an ouster clause. They respect it but when an ouster clause seeks to make it impossible for the courts to protect the common man, and make laws which cannot stand the test of reason or that is affront to decency and intelligence, then a court should be careful not to lend weight to a law that would make it enemies of common man and not the last hope of the common man” … “It is the eternal credit of the courts that it is the peculiar function of the Independent Judiciary comprising of highly qualified legal experts burning and imbued with zeal to give final and authoritative interpretations to our constitution and our laws, that we must as far as possible, given the framework and circumstances of our times, help to nurture a society that is governed by just laws,” Indeed the strange anomaly that is the feature of the termination and then dismissal of the appellant is that both were done by two bodies, to wit, the Ministry of Petroleum Resources through a director on behalf of the Permanent Secretary, and another one on dismissal purported to have been done on behalf of the Head of State. The letter of dismissal plays no part in this matter. It may perhaps feature in the trial of the main case hereafter.
I observe that the respondents have really nothing worthwhile to canvass on their stand beyond what is contained in the judgment of the Court of Appeal that the decision is in order. I am not satisfied that the court below could not exercise its jurisdiction in this matter because of the nebulously worded ouster clause and the fact that the letter of termination purporting to reflect the tenor and intendment of the Decree afore-said was writher. On the 2nd issue, the respondents have argued in this vein, “It is submitted that the court cannot assume jurisdiction over an executive act when the law under which the executive acted clearly ousts the jurisdiction of the court as was rightly held in the case of Attorney-General of the Federation and Anor. v. Sode and Anor. (1990) 1 NWLR (Pt.128) 500, (1990) 21 NSCC (Pt.1).” Their stand is that once the statute ousts the jurisdiction of the court, it has a tone of finality and the court has no business to encircle round it. I respectfully disagree, if that means that the court cannot try to find out whether its competence has been taken away. Since the right of an individual is affected the court seized of the matter ought to carefully examine all the circumstances of the case with a view to discovering whether it fits into the orbit of the intendment of the statute. To close its eyes to the sinister tenor of ouster provision of the statute would amount in my view to abrogation of its Constitutional responsibilities. The court should always see itself as knight errant in a shinning armour brandishing its sword to help the hopeless and evenly seen not to collaborate with forces that choke and asphyxiate the rights of people thereby forcing them into the limbo of disillusionment and frustration. For this I find myself utterly in agreement with Eso JSC in Garba v. F.C.S.C. & Anor (1988) 1 NWLR (Pt. 71)p. 449 at 469-470 when he said:
“What remains now is an examination of the act of the respondents in dismissing the appellant from office during the pendency of the action. Such action, I think is contemptuous of the judiciary which has been seized with the determination of civil rights under the Constitution and which has been left unscathed by all military coups. For the judiciary, a powerful arm of Government to operate under the rule of law, full confidence, and this must be unadulterated, must exist in that institution. It must indeed be demonstrably shown especially if it is the other arms of Government that are involved … The rule of law knows no fear, it is never cowed down, it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence”.
The two lower courts were obviously carried away by the imperial language of the statute and washed their hands clean of competence to adjudicate on the matter. In a case of this nature, as I said earlier the court whose jurisdiction is being thrown away should not readily lend its hand to forces that seek to emasculate and render it toothless.
In the final analysis the appeal succeeds and I set aside the decision of the lower courts. The case should therefore be remitted to another judge for proper trial. There shall be costs for the appellant in the High Court for N2,000.00, in the Court of Appeal for N5,000.00 and in this court for N10,000.00.
SC.18/2001