Mr. Omiete Michael Kalango V. The Governor Of Bayelsa State Of Nigeria (2009)

LAWGLOBAL HUB Lead Judgment Report

D. MUSDAPHER, JSC.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division in appeal No. CA/PH/l59/2000, delivered on 28/5/2002, in which the court dismissed the appeal of the appellant herein against the Ruling on a Preliminary Objection against the appellants suit on the grounds of jurisdiction. The trial court upheld the Preliminary Objection. The matter started this way: In the Federal High Court in the Port Harcourt Division and in Suit No. FHC/PH/936/96, the appellant herein, as the plaintiff challenged his compulsory retirement from the services of Bayelsa State Government whereby in his writ he claimed as follows: –

“1. A declaration of this Honourable Court that the purported “Compulsory Retirement” of the plaintiff from the civil service of Bayelsa State in “public interest” without any prior query, indictment or known offence is null and void and of no effect whatsoever in that it contravenes the provisions of the 1979 Constitution of the Federal Republic of Nigeria.

An Order of this Honourable Court compelling the defendants to reinstate the plaintiff back to his office as Accountant-General of Bayelsa State unconditionally.

An Order of this Honourable Court restraining the defendants, their servants, agents, privies or anyone from implementing the said retirement order or interfering with the performance of the plaintiffs duties as the Accountant-General of Bayelsa State in any manner whatsoever.”

An Order of the transfer of the matter to the Bayelsa State High Court was issued by the Federal High Court, Port Harcourt on the 18/11/1999. The suit then became Suit No.YHC/85/1999. On the 1/2/2000, the defendants filed a Notice of Preliminary Objection in these terms: –

‘Take Notice that this Honourable Court will be moved on Thursday 10th day of February, 2000, at the hour of 9 0 clock in the forenoon or so soon thereafter as counsel on behalf of the defendants/applicants can be heard praying for an Order;

(i) that this Honourable Court lacks jurisdiction to hear and determine this matter, and any

(ii) other order or orders that this Honourable Court may deem fit to make in the circumstance.”

An affidavit was filed in support of the objection. The affidavit contains documentary exhibits including an instrument signed by the Military Administrator of Bayelsa State compulsorily retiring the plaintiff from service. The plaintiff filed a counter-affidavit containing other documents. The trial court heard arguments on the Preliminary Objection and on the 20th day of April, 2000, delivered its Ruling upholding the Preliminary Objection and held that the court lacks the jurisdiction to entertain the plaintiffs claims because its’ “jurisdiction has been ousted by express provision of statute.”

The plaintiff appealed to the Court of Appeal, Port Harcourt Division against the Ruling and in its judgment delivered the 28th day of May, 2002, the plaintiffs appeal was dismissed and the decision of the trial court was affirmed. The plaintiff now referred to as the appellant has now further appealed to this court. The defendants shall hereinafter be referred to as the respondents.

It was with the leave of the Court of Appeal, that the appellant filed his notice of appeal containing three grounds of appeal. In his Brief for the appellant, the learned counsel has identified and submitted two issues arising for the determination of the appeal. The issues are:-

“1. Whether in considering the legality of the appellants compulsory retirement, the only letter of retirement served on him should not be construed or the said letter together with other documents not served on him should be considered together?

Whether the only letter of compulsory retirement served on the appellant conforms with the provisions of Section l (i)(a) of Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation, 1990, so as to oust the jurisdiction of the court in keeping with Section 3 of the said Act?”