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