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Home » Nigerian Cases » Supreme Court » A. I. Wilson V. Attorney-general Of Bendel State & Ors (1985) LLJR-SC

A. I. Wilson V. Attorney-general Of Bendel State & Ors (1985) LLJR-SC

A. I. Wilson V. Attorney-general Of Bendel State & Ors (1985)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

The appellant herein (plaintiff in the suit) commenced this action in the High Court of Bendel State, Benin City by a Writ of Summons filed on 27th November, 1980. The particulars of claim were as follows:-“PARTICULARS OF CLAIM

  1. At all material times until the 6th day of June, 1975 the plaintiff was an Administrative Officer, Principal Staff Grade, in the Bendel (then Mid-Western) State of Nigeria Civil Service.
  2. On 7th June, 1975 the Plaintiff compulsorily retired from the Civil Service of Bendel (then Mid-Western) State of Nigeria on grounds of age, having on 6th June, 1975 attained the age of 55 years.
  3. Nevertheless, one year later, by letters dated 21st July, 1976, the Defendants purported to dismiss the plaintiff from the Bendel State Civil Service contrary to the Public Officers (Special Provisions) Decree 1976. AND the Plaintiff claims-

(a) A declaration that the purported amendment of his retirement from the Civil Service of Mid-Western State of Nigeria to dismissal from the Civil Service of the said State is invalid and void.

(b) A declaration that he is entitled to be paid N75,000.00 being Gratuity due to him upon Retirement, plus Pensions due for the months July, 1975 to July 1980.

(c) A declaration that he is entitled to the payment of further and continuing retiring benefits with effect from August 1980.

(d) An order for the said sums

(e) Further and other relief

(e) N500,000 being General Damages for loss of reputation and goodwill”

Pleadings were ordered, filed and delivered.

I do not consider it essential to set down all the paragraphs of the pleadings of the parties. It is sufficient to state those that indicate the crux of the matter between them. In his Statement of Claim, the Plaintiff averred in paragraphs 1, 2, 6, 7, 8, 9, 11 and 12 as follows:-

“1. Plaintiff was at all material times a Civil Servant in the Public Service of Mid-Western State of Nigeria (as it then was) until 7th (sic) 1975 when, on grounds of age (upon attaining 55 years on 6th June, 1975) he compulsorily retired from the service. In this connection, Plaintiff will at the trial rely on ‘a letter reference G.H.S.31/133 dated 2nd April, 1975 which issued from the Office of the 3rd Defendant to wit, the Military Governor’s Office (as it then was), Public Service Matters Department, Midwestern State of Nigeria (as it then was).

  1. At all material times until 6th July, 1975 plaintiff was an Administrative Officer, Principal Staff Grade, namely of the status and grade of a Permanent Secretary assigned to Special Duties. Plaintiff pleads and will at the trial rely on all relevant public documents.
  2. Over one year after Plaintiffs compulsory retirement on grounds of age, 2nd defendant on 21st July, 1976, purported to dismiss him from the Public Service of which the Plaintiff had ceased to be a member. Plaintiff will at the trial rely on 2nd Defendant’s letter No.S.100/T/27 dated 12th July, 1978, and more particularly on the attachment thereto, which attachment is dated 21st July, 1978.
  3. Plaintiff avers that he has never seen the Reports and/or Findings of the Bodies mentioned in 2nd Defendant’s letter of 21st July, 1976, referred to in paragraph 6 above, and that these were never made available to him. Plaintiff pleads that the 2nd defendant relied and used the said Reports and Findings without first giving him an opportunity to see them or to comment on them. Plaintiff will contend at the trial that 2nd defendant’s purported act of dismissal, even if otherwise valid, which it is not, is unconstitutional.
  4. Plaintiff pleads that the Findings of the body referred to by 2nd defendant as the Odje Commission of Enquiry are, in so far as they relate to plaintiff, null and void. Plaintiff will contend that the Commission of Enquiry refused jurisdiction under the instrument appointing it. Additionally plaintiff will contend at the trial that the said commission exceeded its jurisdiction.
  5. Plaintiff claims that the Odje Commission offended against Natural Justice Rule and acted in excess of jurisdiction conferred on it by Midwestern State Notice No. 399 of 1975, which super added an express obligation to follow a judicial- type procedure in arriving at decisions. The said Notice No. 399 made statutory provision for parties to be heard.
  6. Plaintiff pleads that at all material times 3rd defendant had no powers under any Act or law to authorise either directly or by delegation the purported dismissal of the Plaintiff. Plaintiff will contend that the purported act of the 3rd defendant in this regard is ultra vires, null and void.
  7. Plaintiff claims that 2nd defendant’s purported act in dismissing him from the service, as evidenced by their letter dated 21st July, 1976, is illegal, null and void.”

In their reply the defendants in a joint statement of -defence averred in paragraphs 3, 4, 5, 6, and 8 as follows:-

“3. The Defendants deny paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Statement of Claim and will at the trial of this suit require that the averments in those paragraphs be proved as required by law.

  1. In further reply to paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Statement of Claim, the defendants aver that the Plaintiff was dismissed, that his dismissal was in keeping with the law and particularly the Public Officers (Special Provisions) Decree (now Act) of 1976.
  2. In further answer to all the claims and allegations of the Plaintiff the defendants will contend at the trial as stated in the following paragraphs of this statement of defence.
  3. The defendants will further contend in further answer to the Plaintiff’s claim that the acts complained of were done in good faith and without malice by appropriate authority who had competence to do the acts and that the Constitution of the Federal Republic of Nigeria, 1979 which took effect on 1st October, 1979 did not have retrospective effect to invalidate “the acts done before it.
  4. In answer to all the claims of the Plaintiff the defendants will raise by way of preliminary objection on a point of law the following issues:-

(a) That the court has no jurisdiction to entertain this suit by reason of the provisions of the Investigation of Assets (Public Officers and other Persons) Decree 1968 and the Public Officers (Special Provisions) Decree 1976;

(b) The defendants, in addition to the above, will further contend that by virtue of the provisions of Tribunals of Inquiries (Validation etc.) Decree 1977 particularly Sections 2(1)(a)(b), 2(2), this action is void and shall be so declared and/or that by virtue of the provisions of sections 1, 2 and 3 of the said Decree, the issues raised in the claim cannot be questioned in court;

(c) That by virtue of the provisions of Sections 6(6)(d) of the Constitution of the Federal Republic of Nigeria, 1979, the Plaintiff cannot question the competence of the Military Governor or appropriate authority to make the laws or orders complained of.”

The challenge to the jurisdiction of the court to entertain this suit as pleaded in paragraph 8 of the joint statement of defence formed the main plank of the defendants’ defence in all the courts. This is why at the earliest opportunity in the High Court the defendants raised a preliminary objection in the terms of their plea in paragraph 8 of the joint statement of defence set down above. After admitting some documents by consent of the parties and listening to argument, Ekeruche C.J. ruled that his court had jurisdiction to entertain the plaintiffs suit holding that “there is nothing before me to show that the said laws are applicable in the present suit”. The matter proceeded to trial in which only the plaintiff gave evidence. No witness was called by the defence, nor were certain relevant documents tendered in evidence. These are matters the importance of which will become clearer later in this judgment. At the end of the trial, and after a careful examination of the relevant laws including Section 2(a) of the Public Officers Protection Law, Cap. 137 Laws of Bendel State of Nigeria, Section 2(1)(a) and (b) and 2(2) of the Tribunal or Inquiries (Validation, etc.) Act No. 18 of 1977, Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979, Sections 1 – 10 of the Public Officers (Special Provisions) Act No. 10 of 1976, the Investigation of Assets (Public Officers and other Persons) (Amendment) Act 1968 and the Tribunal or inquiries Act 1966 as amended by Tribunals of inquiries (Amendment) Act NO.2 of 1977 Ekeruche C. J. on 19th November, 1981 gave judgment in favour of the plaintiff though not in relation to all his Claims.

Some portions of that judgment need to be emphasised. On the question whether the Public Officers’ Protection Law Cap. 137 covered the defendants (i.e. the respondents herein) the learned Chief Judge concluded that it did not. He went on:

“For any of the defendants to be entitled to protection under that law, it must be shown that the Public Service Commission that purported to convert the retirement of the plaintiff into dismissal was invested by law with power to do so. It was not the appropriate authority as defined by law and clearly had no such powers.

There cannot be any suggestion that it had any duty to exercise the powers of the appropriate authority. The person who had power under the law to dismiss the plaintiff in pursuance of the recommendation made following investigations of his assets, was the Military Governor at that time. He only was the appropriate authority. Nothing in all the Laws cited shows that the Military Governor had authority to delegate that power to anybody and there is no evidence that the Military Government then delegated that power to anybody not even the Public Service Commission that purported to dismiss the Plaintiff. Nor is there any law or evidence that the Public Service Commission ordinarily can act of its own volition for the appropriate authority. It being an institution of the Government cannot make it competent to do so. So that in purporting to convert the plaintiff’s retirement into dismissal, the Public Service Commission acted without authority and illegally and that being so, the purported dismissal was invalid in law and so null and void.”

Though the report of the Odje Commission was never before the court, the plaintiff had both in his pleadings and evidence attacked it on various grounds including denial of his right to fair hearing, exceeding its jurisdiction etc. On this the learned trial Chief Judge concluded as follows:-

“If the main issue before this Court was limited to the question whether or not this Court can inquire into what the Odje Commission of Inquiry did, there would have been no difficulty in resolving that issue in favour of the defendants, that is, that this Court cannot entertain this suit. Section 2(2) of the Tribunal or Enquiry (Validation etc.) Act No. 18 of 1977 would have effectively operated to bar this Court from inquiring into what the Odje Commission did including their findings.

On the question whether or not the Plaintiff had had an opportunity of a hearing by the Odje Commission of Enquiry, I am satisfied that he had such an opportunity. On his own showing, he was summoned before the Commission to testify and he was questioned there. I do not believe that he was not given an opportunity of a hearing. In fact his evidence points to his having been given opportunity of a hearing and I find as a fact that he was so given”

The defendants (i.e. respondents herein) appealed to the Court of Appeal. The appellant also cross-appealed to the Court of Appeal mainly challenging the decision of the learned trial Chief Judge on whether he had a fair hearing before the Odje Commission and whether the plaintiff was entitled to general damages. Although the respondents herein filed 8 grounds of appeal before the Court of Appeal there is no doubt that the argument and decision of that court centres around ground 1 of the respondents additional grounds of appeal in which they complained that:

“The learned trial judge erred in law for entertaining Suit No.B/294/80 filed by the Respondent against the Appellants when he had no jurisdiction at all to entertain the said suit by virtue of the provisions of:-

(a) The Investigation of Assets (Public Officers and other persons) Decree (Now Act) No. 37 of 1968.

(b) The Public Officers (Special Provisions) Decree (now Act) No.10 of 1976.

(c) The Tribunals or Inquiries (Validation etc.) Decree No. 18 of 1977.”

In fact the Court of Appeal after referring to the decision of this Court in Uwaifo v Attorney General of Bendel State (1982) 7 S.C. 124 first decided to give a decision on jurisdiction and if need be a decision on the other issues later, but later heard argument on all the issues raised in the appeal.

On the 28th of April, 1983 a full court of the Court of Appeal, (Nasir, P, Omo-Eboh, Ete, Okagbue and Ikwechegh, JJ.CA.) decided that the Benin High Court had no jurisdictions to entertain the suit. In the lead judgment, Omo-Eboh concluded as follows:-

“I really do not consider it necessary to go further on to deal with the points raised by learned Counsel to the respondent in her submission as they relate to other aspects of the case as distinct from the issue of jurisdiction since I am of the view, and do hold, that the High Court, Benin City or any other court for that matter is precluded from inquiring into any act done in respect of Tribunals of Enquiry set up under the above mentioned Acts. May I add that the wording of Section 2(1)(a)(b) and also section 2(2) of the validation Act – No. 18 of 1977 is so clear and categorical that not only is it the clear intention of the law that the courts of the land shall not have or exercise jurisdiction in all matters coming under Act No. 37 of 1968 and Act No. 10 of 1976 but that all things made or done under both Acts shall be deemed to have been validly made or done. This to my mind, will be a complete answer to any complaint of irresponsibility that the appellant may have against any action meted to him pursuant to or arising from the findings of the Odje Commission of Enquiry”.

The Court of Appeal also considered the submissions made by the plaintiff in respect of the cross appeal and finding no merit in them dismissed that appeal.

The appellant has now appealed to this Court. Six grounds of appeal were filed complaining about various conclusions of the Court of Appeal. In ground 6 particularly, the appellant complained that “the learned Justices of the Court of Appeal misdirected themselves in law and in fact when, at page 8 of their judgment, they held in the instant case that the burden was on the plaintiff/appellant in the lower court of proving that the Military Governor as appropriate authority did not authorise or direct Exhibit 2A to be written”.

Learned counsel to both parties were given ample opportunity by this Court to expatiate on the briefs of argument which they had already filed. In her submission, learned counsel to the appellant, Miss Ayanka, dealt with the ouster clauses on the bias of which the Court of Appeal held that the Benin High Court had no jurisdiction to entertain the appellant’s suit. These are Section 6(3) of the Decree (Now Act) No. 10 of 1976 and 2(2) of Decree (Now Act) No. 18 of 1977. She contended that these ouster clauses should not preclude the Courts from looking strictly at the provisions of the Decrees themselves to see if the actor acted within the law. It was her view that the executive acts of government must be authorised by law when they affect private rights especially in this case where the rights were already vested. As regards Section 6(3) of Decree (now Act) No. 10 of 1976 she submitted that the appellant did not come within the purview of that Act since he was not a public officer within the meaning of Section 7(2)(1) of that Act. Besides, she said that while that Act came into effect on 29th July 1975 the appellant had retired on 7th June 1975. As regards the other ouster clause – Section 2(2) of Act No. 18 of 1977 – Miss Ayanka submitted that this was not applicable as the act to be so covered must be the act of the appropriate authority. Referring to Exhibit 2A, the letter of dismissal served on the appellant, she submitted that it was neither the appropriate authority who issued it nor is there anything to show that it was issued on his direction. She said that the State Public Service Commission could not act by delegated power as it was an institution established by law. Referring to the Uwaifo case supra Miss Ayanka distinguished it from the present suit saying that that case dealt with forfeiture of Assets under Act No. 37 of 1968. In his reply, Mr Akhigbe learned Solicitor-General of Bendel State, relied heavily on the decision of this Court in Uwaifo’s case contending that the appellant was caught by it. On the issue whether the appellant was a public officer he submitted that he was. Putting reliance again on Uwaifo’s case he referred this Court to Section 7 of Act No. 10 of 1976 and Section 13(1)(a) of Act No. 37 of 1968. Referring to Exhibit 2A, he submitted that if there was any error in its issuance it is covered by Section 1(1)(a) of Act No. 18 of 1977 and Sections 1,4 and 6(3) of Act No. 10 of 1976. He conceded that there was nothing on the face of Exhibit 2A to show that it was issued on the authority of the Military Governor but sought protection in the provisions of Section 6(3) of Act No. 10 of 1976 which ousted the jurisdiction of the court in respect of anything purported to be done by any person. He urged the Court to give Section 6(3) a very wide interpretation. Any person there should be any person whatsoever, he said. He submitted that any person has very extensive meaning and applies to any person purporting to act under the Act. It was his contention that this would cover Exh. 2A in this case. Any person applies to any person within government circles. Before dealing with the main issues raised in this appeal, there are some facts which need to be emphasised although they had appeared in both the particulars of claim and some paragraphs of the statement of claim set down above.

First is that as per Exhibit 1 in the proceedings the appellant received a letter of compulsory retirement. The letter dated 2/4/76 was in these terms

“Our Ref: GHS: 31/133

A. . Wilson,

Chairman/Managing Director.

Niger Agencies (International)

Nigeria Limited,

P. O. Box 553.

Benin City.

Compulsory Retirement

Your record of service shows that you were born on the 6th of June, 1920. You will therefore, attain the age of 55 on the 6th of June, 1975 which, according to paragraph 106 of the Government

White Paper on the Report of the Public Service Review Commission is the compulsory retirement age.

  1. In this regard, therefore, I am directed to inform you that you will be due to retire compulsorily from the Public Service of the Mid-Western State of Nigeria with effect from 7th June, 1975.
  2. The relevant retirement papers will be forwarded to you for completion in due course.

(Sgd.) E. a. Eziashi)

for Secretary to the Military

Government and Head of Service

Having thus retired from the public service of Bendel State on 7th June, 1975, the appellant received Exh. 2A which is the bone of contention in this suit. Its terms are:

“SECRET

No. S.10/T/22 21, July, 1976

Mr. A. I. Wilson,

Retired Permanent Secretary,

u.f.s. The Secretary to the Military

Government and Head of Service,

Military Governors Office,

(Public Service Mailers Department),

Benin City.

Dismissal from the Civil Service

I am directed to inform you, with regret, that after very careful consideration of the findings against you by the Nigeria Economic Welfare Services Ltd. and the Odje Commission of Enquiry with regard to your work and conduct while you were Chairman/Managing Director of the Niger Agencies (International) London and Niger Agencies (International) Nigeria Ltd., the Public Service Commission has decided to amend your retirement to dismissal.

  1. You are accordingly dismissed from the Civil Service of the State with effect from 7th June, 1975.

(Sgd.) V. E. Agherofo,

for Secretary

Public Service Commission”

The only other matter worth mentioning at this stage is that the Military Governor of Bendel State set up a Commission of Enquiry into the Constitution, structure, functions and operation of statutory corporations, boards and Government owned/sponsored companies. This is the adje Commission of Enquiry. The Instrument constituting it is Instrument No. 399 published as Midwestern State of Nigeria Extraordinary Gazette No. 46 Vol. 12 dated 22nd August, 1975. In that Instrument the Military Governor is said to have set up the Commission in exercise of his powers under Sub-Section (1) of Section 2 of the Commissions of Inquiry Law (Cap 23) and by virtue of all other laws enabling him in that behalf.

By his pleadings and evidence in the trial Court, the appellant agreed that he appeared before that Commission, albeit briefly, and that he later received a letter setting out what was said, that the Odje Commission had made certain findings against him and had called on him to pay N71 ,000 or face some consequences. He said he ignored the letter as he knew nothing about Odje Commission and the findings made. It is also pertinent to mention that as set down earlier in the judgment the learned trial Chief Judge decided that the appellant was given opportunity of a hearing by the Odje Commission of Enquiry.

Having set down the salient facts of this case the first major issue to deal with is naturally whether the Benin High Court had jurisdiction to entertain the complaints of the plaintiff/appellant. This will not only dispose of the appeal one way or the other but is in my view the right order in which to deal with the issues since in fact the judgment of the Court of Appeal against which an appeal has been lodged in this Court was based solely on that issue. The contention that the Benin High Court, or indeed any court, lacked jurisdiction to inquire into the appellants complaints is based on the ouster clauses contained in Section 6(3) of the Public Officers (Special Provisions) Act No. 10 of 1975 otherwise known as Act No. 10 of 1976, and Section 2(2) of the Tribunals or Inquiries (validation etc.) Act No. 18 of 1977 otherwise known as Act No. 18 of 1977 and Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979 as amended. These provisions are in these terms:-

Section 6(3) of Act No. 10 of 1976

“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 Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void”.

Section 2(2) of Act No. 18 of 1977

“(2) The question whether any Edict or subsidiary instrument or any act or thing to which subsection (1) of this section relates was validly made or done shall not be inquired into in any court and if any action or other proceeding whatsoever has been or is instituted in any court in respect of any such Edict or subsidiary instrument or act or thing the action shall be void”

Section 6(6)(d) of the 1979 Constitution

“(6) The judicial power vested in accordance with the foregoing provisions of this section – (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”

See also  C. Duclaud V. Mrs M. H. Ginoux (1969) LLJR-SC

Starting with Act No. 18 of 1977, it is to be noted that although it is dated 8th March, 1977 it is deemed to have come into effect on 29th July, 1975. Secondly, Section 1(1)(a) of that Act provides as follows:-

“1.(1) Where on or after the commencement of his Decree (but before 30th September, 1977) the appropriate authority in a State has instituted any tribunal or inquiry (however described or constituted) –

(a) to enquire into any matter concerning the administration of the affairs of any person or of anybody, whether corporate or incorporate in the State… the tribunal or inquiry as aforesaid shall not withstanding anything to the contrary in any enactment, law or rule of law, be deemed to have been validly instituted or constituted.”

By Section 4 of the Act “Appropriate authority” is defined as the Military Governor of a State and any person or authority acting under the direction of the Military Governor of the State. A close perusal of all the sections of the Act shows unmistakably that the validation provided by the Act relates solely to the acts of the Appropriate authority i.e. the edicts or statutory instruments made by him in regard to the report of an inquiry or the act of setting up the inquiry itself. Subsection 1 of Section 2 which is referred to in the ouster, Section 2(2), provides that “Any Edict or subsidiary instrument made by the appropriate authority in a State and any act or thing done by the appropriate authority in respect of the implementation of the report of any tribunal or inquiry to which section 1 of this Decree applies shall….” The explanatory note accompanying the Act though admitted not a part of the Act states the purpose of the Act as providing “a general validation in respect of all inquiries instituted by the Military Governor of a State and all actions taken in execution of the policy of the Government of the State on the matter in respect of which the inquiry in question was instituted”

It follows therefore that the ouster clause in this Act will only apply if the edict or statutory instrument being challenged is one made by the military governor or if the institution or constitution of the Inquiry made by the military governor as appropriate authority is being challenged. Relating this to the instant appeal, the ouster clause under this Act will only apply if Exh. 2A can be shown to be the act of the appropriate authority i.e. the military governor in the course of implementation of the report of the Odje Commission of Enquiry which he undoubtedly set up. I shall return to this after dealing with the ouster clause in Act No. 10 of 1976.

The Public Officers (Special Provisions) Act No. 10 of 1976 though made on 23rd February 1976 commenced on 29th July 1975. Sections 1 and 3 provide as follows;

“1. Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that-

(a) it is necessary to do so in order to facilitate improvements in the organisation of the department or service to which a public officer belongs….the appropriate authority may at any time before 1st January 1976-

(i) dismiss or remove the public officer summarily from his office, or

(ii) require the public officer to retire compulsorily from the relevant service.

3(1) For the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself or any other person, the appropriate authority may constitute a panel to conduct an investigation into any matter with which the officer has been concerned in the performance of his duties or to conduct an investigation into the assets of the public officer”.

Once more the appropriate authority is defined in Section 7(2)(i) of the Act “in respect of any office which was held in right for the purposes of a State shall be the military governor of that State or any person authorised by him”.

Although the action of dismissal of public officers or forfeiture of property by the appropriate authority is by Sections 1 and 5 of the Act to occur between 29th July, 1975 and 1st January 1976, it is necessary to remember that by Section 1 of Act No. 18 of 1977 to which reference has been made earlier in this judgment the period has actually been extended to 30th September, 1977.

It is clear from a close perusal of this Act that the actions envisaged therein are mainly those of the appropriate authority and it is these that are validated by the provisions of Act “No. 18 of 1977 referred to earlier. It seems clear to me too that if the provisions of this Act i.e. No. 10 of 1976 are to apply the act of dismissal or removal of a public officer, or the forfeiture of his assets, or the setting up of a commission or panel to investigate his assets must be specifically stated or clearly seen to have been done by the appropriate authority or any other person, where applicable, under the decree. The ouster clause, Section 6(3) must in my view be construed in this con. The act or purported act by any person or removal or dismissal of a public officer, or forfeiture of his property, or setting up of a panel to investigate his assets in respect of which no civil proceedings can be instituted in any court must be an act or purported act stated specifically or clearly seen to have been done under the decree. In the instant appeal, therefore, for Section 6(3) of Act No. 10 of 1976 to apply I think that it has to be shown first, that the Odje Commission of Inquiry, the findings at which purportedly led to the dismissal of the appellant was set up under that Act particularly due to the provisions of Sections 1(c) and 3(1) of the Act and second, that the act of dismissal of the appellant was clearly done under the decree.

I agree with the learned Solicitor-General of Bendel State that any person as used in Section 6(3) of Act No. 10 of 1976 is very extensive. It is wide enough to include the appropriate authority, the Public Service Commission and indeed and person in government. Dealing with the second condition mentioned above first, there is nothing on the face of Exhibit 2A to indicate that the dismissal of the appellant was done pursuant to any powers conferred by Act No. 10 of 1976. Although the respondents in their pleadings averred that the appellant was dismissed under that Act, no evidence was given in support of this nor were any documents tendered to substantiate it. Sections 1 and 3(1) of Act No. 10 of 1976 had as indicated earlier vested in the appropriate authority the power to remove or dismiss a public officer, or to forfeit property or to constitute a panel to investigate the assets of a public officer. There is nothing whatsoever in Exhibit 2A to indicate that the act of dismissal of the appellant was the act of the appropriate authority, nor is there any evidence either that he authorised or directed any person to so dismiss him. It is one of the strange aspects of this case that the solicitors to the respondents particularly at the trial court did not deem it necessary to lead evidence connecting the appropriate authority with Exhibit 2A – Such evidence would have indicated whether it was infact the military governor who authorised the appellant’s dismissal. Omo-Eboh, J.C.A. found this equally strange for he said in his judgment that

“the facts of this case though simple and straight forward, are peculiar in that whilst one party (the respondent (i.e. in the Court of Appeal) gave evidence in Court the other party (the respondents (sic)) neither gave evidence nor called any witness but simply relied on the ouster clauses in specified decrees or Acts to ground the defence that the High Court Benin City had no jurisdiction to entertain the plaintiffs claim”.

The appellant, in the trial Court, sought and obtained an order of Court to join the Military Governor of the State as the 3rd defendant for the sole purpose of affording the defence the oportunity of stating whether Exh. 2A was authorised by the Governor. That opportunity was never utilised by the respondents herein.

The contents of Exhibit 2A unmistakably show that it was the Public Service Commission that decided to amend the appellant’s retirement to dismissal. It can safely be-assumed that Mr. Agherofo who signed that letter “for Secretary Public Service Commission” was directed by the Public Service Commission. The Public Service Commission falls within “any persons” used in Section 6(3) of Act No. 10 of 1976 but as earlier indicated its purported action of dismissal can only be protected by that section if that action can be shown to have been taken under the Act. I have already shown that there is nothing on the face of exhibit 2A to suggest that the dismissal of the appellant was done under Act No. 10 of 1976.

Section 1(c)(i) of Act No.10 provide that

  1. “Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that-

(c) a public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person the appropriate authority may at any time before 1st January 1976 –

(i) dismiss or remove the public officer summarily from his office; or

(ii) require the public officer to retire compulsorily from the relevant service”

It would appear to me that the combined effect of Sections 1(c) and 3(1) (already set down earlier) of the Act is that if a public officer is to be dismissed for corrupt practices or for corruptly enriching himself it will be pursuant to the findings of a panel or committee set up by the appropriate authority to investigate his assets. In the instant appeal, the Public Service Commission which in my judgment wrote Exhibit 2A purported to be acting in pursuance of the findings of the Odje Commission of Enquiry. I am therefore of the view that since the accusation against the appellant was corrupt practices, the protection under Section 6(3) of Act No. 10 of 1976 will be available if the Inquiry set up by the appropriate authority i.e. the Odje Commission was under that Act. If infact the Odje Commission of Inquiry was set up under Act No. 10 of 1976 it would in my view follow that the Commission purported to act under the decree even if Exhibit 2A did not specifically state so.

In constituting the Odje Commission of Inquiry, the Military Governor of Mid-Western State of Nigeria (as it then was) acted “pursuant to the power conferred upon me by subsection 1 of Section 2 of the Commission of Inquiry Law (Cap. 23) and by virtue of all other laws enabling me in that behalf…” The instrument was dated 21st August 1975. On the face of it, it is clear that the Commission was not set up under Act No. 10 of 1976. By operation of law, Act No. 10 of 1976 came into operation on 29th July, 1975 and is therefore deemed “to have been in force at the date when this Commission was constituted. I was tempted therefore to give the words “by virtue of all other laws enabling me in that behalf” a broad interpretation and thereby import Act No. 10 of 1976 which undoubtedly authorises the Military Governor to set up the sort of Commission he set up. I have however recoiled from doing this as I am satisfied that such a broad interpretation would be unjust to the appellant. Although Act No. 10 of 1976 came into force on 29th July, 1975 it was actually promulgated on 23rd February 1976. It could not have been in the contemplation of the Military Governor on 21st August 1975. Besides, if one was to import other laws enabling the Governor to setup the Commission it will not be limited to Act No. 10 of 1976. It will certainly include the Investigation of Assets (Public Officers and other Persons) Act No. 37 of 1968. Furthermore, the dire consequences which will follow such an importation of Act No. 10 of 1976 dictate that those words be given a restrictive interpretation. Although we are not here dealing with a panel statute, the thinking is similar. In Tucks & Sons v. Priester (1887) 19Q.B.D. 629 the Court held that “if there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable construction we must give the more lenient one”

In the result Section 6(3) of Act No. 10 of 1976 is not applicable and cannot afford protection to the purported action of the Public Service Commission. As regards Section 2(2) of Act No. 18 of 1977 it must follow from what I have said about Exhibit 2A that it is also inapplicable. It was not the appropriate authority that issued Exhibit 2A, nor is any edict or statutory instrument issued by the appropriate authority in the course of implementation of any commission of inquiry being challenged, nor indeed are the proceedings or findings of any commission of inquiry being directly challenged in this suit.

The third ouster clause on which reliance was placed by the respondents is Section 6(6)(d) of the Constitution. The full scope of this provision of the Constitution was dealt with by this Court in F. S. Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C. 124 at pages 206 – 220 and 281- 287. At p. 213 Idigbe, J.S.C. said of that section –

“Indubitably, the provisions of Section 6(6)(d) aforesaid are aimed at proceedings which seek to detract from the binding force and or authority of any unrepealed law made by the military regime between 15th January, 1966 and 1st October, 1979 when the new Constitution came into force”

I held the view (which I still hold) that

“it was the intention of the framers of the Constitution, as can be gleaned from the wording of Section 6(6)(d), that no court, even after 1st October 1979, should have jurisdiction to question any Edict or Decree made between 15th January 1966 and 30th September 1979 on the ground that the person or authority that made it had no capacity or power to make it.”

From these passages it is clear that Section 6(6)(d) is totally irrelevant in these proceedings. This suit is not concerned with the challenge to any edict made by the Military Governor of Mid-western Nigeria or Bendel State. The three ouster clauses on which the respondents placed so much reliance are therefore not applicable and the Court of Appeal was with all respect in error in holding that the Benin High Court had no jurisdiction to entertain this suit.

Having held that the High Court had jurisdiction, I propose now to consider the other matters raised in this case. It was the contention of learned counsel to the appellant, Miss Ayanka, that the appellant could now no longer be dealt with by the Public Service Commission. Infact it was her view that the Acts I have been considering – Acts No. 10 of 1976 and No. 18 of 1977 – do not apply to him. All this as per her submission is because he was no longer a public officer having retired from the public service on 7th June, 1975. It was further her view that these two acts commenced operation on 29th July, 1975 long after the appellant’s retirement. Moreover she said, Act No. 10 had specifically provided that the period during which removals were to occur was 29th July, 1975 to 1st January 1976 but the letter purportedly removing the appellant from office was dated 21st July, 1976. I think, with all respect to Miss Ayanka, that these contentious arose from her failure to examine the provisions of the relevant acts thoroughly. It is clear from Section 1 of Act No. 18 of 1977 to which I made reference earlier that the period covered for the removals and dismissals was extended to 30th September, 1977. It follows that the letter Exhibit 2A falls within the prescribed period. As regards the question whether the appellant was still a public officer who could be dealt with by the appropriate authority or the Public Service Commission it is pertinent to mention that a similar question arose in the Uwaifo case (supra) and this Court answered it in the affirmative. Indeed in Uwaifo’s case, he had retired in 1972!.The answer given by this Court in that case was based on the interpretation of Section 7 of Act No. 10 of 1976 and Section 13(1)(a) of Act No. 17 of 1968. Section 7(1) of Act No. 10 of 1976 provides as follows:-

“7( 1) In this Act ‘public officer’ means any person who holds or has held any office in –

(a) the public service of the Federation within the meaning of the Constitution of the Federation or

(b) the public service of a State within the meaning of the corresponding provision of the Constitution of the State;

(c) the service of a body whether corporate or incorporate established under a Federal or State law;

(d) a company in which any of the Governments in the Federation has controlling or substantial interest – and for the purpose of this Decree includes any person who al any time before the commencement of this Decree held office as a member of the Supreme Military Council, or the Federal Executive Councilor as Military Governor (or Administrator) of a State or a Commissioner in the Government of the Federation or of a State”

Section 13(1)(a) of Act No. 37 of 1968 provides

“13(1) In this Decree unless the con otherwise requires “public officer” means

(a) any person who on or after 1st october, 1960 holds or has held any office in any of the public services of Nigeria.”

There is no doubt in my mind that those two provisions are applicable to the appellant. He is a person who has held office in the public service of a State – Midwestern State now Bendel State. Section 13(1)(a) takes the period covered back to 1st October 1960 I think that a journey back into history and a careful review of the events of 1966 and 1975 against the background of which the relevant Acts – No.10 of 1976, No. 18 of 1977 and No. 37 of 1968 – were promulgated would clearly show an intention on the part of the military regime to reach any person who holds or has held office on or from 1st October 1960 in the public service and against whom any impropriety has been alleged whether he had retired or not and whether the rights accruing to him on account of his retirement had vested. Although it is a rule of construction that statutes dealing with vested rights are construed strictly almost like penal laws, in view of the clarity of the provisions I have referred to which had no difficulty in sustaining the action against him if the respondents had kept within the provisions of those Acts particularly No.10 of 1976 and No. 18 of 1977.

The last main issues I would wish to deal with is whether having regard to the contents of Exhibit 2A the Public Service Commission validly dismissed the appellant. In examining this aspect of the case I am conscious of the fact that it is a cardinal principle of the construction of statutes that statutes which confer powers on statutory bodies are construed such as to prevent abuse of power. In such cases the court will inquire into the bona fide of a purported exercise of statutory power. “It is well settled” said Lord Macnaughten in Mayor etc of West minister v L. & N. W. Ry. Coy (1905) A.C. 426 at 430.

“that a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably”

See Harr v Military Governor of Rivers State & Ors. (1976) 2 Federation of Nigeria Law Reports 215 at 226 and 227. I have already shown in this judgment that the Public Service Commission in writing Exhibit 2A was not acting under the provisions of Act No. 10 of 1976. I had also shown that the act of dismissal of the appellant not being that of the appropriate authority the provisions of Act No. 18 of 1977 were equally inapplicable. The only matter which therefore remains to be resolved is whether by its rules and regulations as well as the law establishing it the Public Service Commission of Bendel State validly dismissed the appellant. The Public Service Commission was established under Section 61 of the Constitution of Bendel State of Nigeria Act 1964. Section 62 vested it with power to appoint persons to hold or act in offices in the public service of the State (including power to make appointments on promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices. Although the Public Service Commission undoubtedly had powers to discipline the appellant, the principles of natural justice demanded that the Commission ought to have given him an opportunity of being heard. The rules and regulations of the Commission normally make provision for this. The Public Service Commission Regulations of Mid- Western Nigeria which came into effect on 2nd May, 1963 (See v. N.L.N. 99 of 1963, M.S.L.N. 3 of 1963, M.S.L.N. 2 of 1975 and Vol. 7 Laws of Bendel State p. 4257), and adequate provisions for the procedure to be followed during discipline of officers. By Section 3 of the Regulations, the appellant herein belonged to the administrative class and would appear to have fallen within Category 1. Section 55 of the Regulations provides as follows:-

“Whenever a Head of Department considers it necessary to institute disciplinary proceedings against a public officer in Category 1 or 2 a public officer in Category 3 who has been confirmed in a pensionable office and he is of the opinion that the misconduct alleged against the officer is such as would, if proved, justify the officer’s dismissal from the public service, the following shall apply –

(1) If the officer is in Category 1-

(a) the Head of Department shall report the case with a statement of his opinion and the reasons for it to the Commission…

(c) The Head of Department shall immediately after the specified day either report to the Commission the fact that the accused officer has failed to furnish an exculpatory statement or shall forward to the Commission with his comments or recommendations any such statement as the officer may have furnished.

(e) The Committee shall inform the accused officer that on a specified day the charge made against him will be investigated by them and that he will be allowed or, if the Committee so determine, will be required to appear before them to defend himself…

(j) The Commission after consideration of the report of the Committee, may if it is of the opinion that the report should be amplified in any way or that further investigation is desirable refer the matter back to the Committee for further investigation and report or may itself hear evidence or examine any documentary evidence.

(k) The Commission’s decision on each charge preferred against the accused officer (but not the

reasons for the decision) shall be communicated to him”. Sections 40 and 41 of the regulations are also relevant.

There is no evidence that the Public Service Commission sought for or received any comments from the appellant before purporting to act on the findings of the Odje Commission. It never made the findings of that Commission available to the appellant before purporting to dismiss him. Indeed it is instructive that even the efforts of the appellant to obtain a copy of the Odje Commission Report pursuant to which he was dismissed were unsuccessful. In a letter dated 9th April, 1976 the Secretary to the Military Government of Bendel State wrote as follows:-

See also  Abdu V. State (2022) LLJR-SC

“Mr. A. I. Wilson, O.F.R.,

Plot D.38,

Reservation Road,

Benin City.

ODJE COMMISSION’S REPORT

I wish to refer to your letter dated 29th March, 1976, and to inform you that Government has not yet authorised the publication or release to the public of the Odje Commission Report. I regret therefore, that it would not be possible to make a copy of the Report available to you.”

In Denloye v. Medical and Dental Practitioners Disciplinary committee (1968) 1 All N.L.R. 306 this Court held that although the tribunal in that case had power to decide on its own procedure and lay down rules for the conduct of enquiries regarding discipline, it was of the utmost importance that the enquiry be conducted in accordance with the rules of natural justice.

It was a denial of justice to withhold from the appellant in that case the nature of the evidence which had been given against him at a previous hearing. Admittedly we are not concerned here with an enquiry in which there was a breach of natural justice, rather, if only by way of analogy, with a denial of justice brought about by the Public Service Commission not showing the appellant the report (and take his comments thereon) which it had considered before purporting to dismiss him.

What the Public Service Commission did in the instant case is not only a gross violation of its regulations but also a major breach of the principles of natural justice. In the circumstances on this ground too its action cannot stand. The purported dismissal was invalid and I so hold.

Finally, I would only wish to comment briefly on the decision of this Court in F.S. Uwaifo’s case on which the respondents, and indeed the Court of Appeal, placed so much reliance. Except perhaps as to the determination of the issue of “public officer” which this Court did there, that case is of no assistance to the respondents. The facts are totally different from those of the present appeal and the case is therefore easily distinguishable. First and foremost, the actions challenged in that suit emanated from the appropriate authority and it is not surprising that some provisions of Act No. 18 of 1977 were called in aid to resolve issues there. Be it noted that in this appeal the strength of the appellant’s case lies in the fact that there is nothing to show that the appropriate authority took any action against him – i.e. nothing whatsoever connects him with Exhibit 2A. Secondly, whereas so much time and space has been spent in this judgment determining whether the purported dismissal of the appellant was done under Act No. 10 of 1976, and indeed whether the inquiry pursuant to whose report the appellant was purportedly dismissed was set up under Act No. 10 of 1976, in Uwaifo’s case action actually started from that Act. By Instrument No. 89/90 published in the Bendel State Gazette No. 14, Volume 14 of 14th February, 1977, pursuant to Bendel State Gazette Notice No. 84 of 1977, the Military Governor of Bendel State, in exercise of the powers conferred on him under Section 3 of the Public Officers (Special Provisions) Act of 1976 i.e. Act No. 10 of 1976 appointed a Panel “The Maidoh Assets Verification Panel” to carry out an investigation into the assets of certain individuals including Uwaifo (incidentally unlike in the present appeal all the instruments and gazette notices were placed before the Court). At the end of their investigation, the Panel issued its report recommending the forfeiture of some assets of Uwaifo. It was in implementation of that report that the Military Governor – the appropriate authority – promulgated the Public Officers and other Persons (Forfeiture of Assets No.2 Edict of 1977) otherwise known as Edict No. 10 of 1977.

In the circumstances of that case the challenge by Uwaifo to the Edict made by the Military Governor as well as to the proceedings of the Maidoh Verification Panel failed. The Military Governor having acted under Act No. 10 of 1976 to set up a Panel, and having pursuant to the Report of that Panel issued Edict No. 10of 1977, no court had jurisdiction to entertain any questions as to the validity of his actions. Hence Sections 2(1) and 2(2) of Act No. 18 of 1977 (already set down) and the all pervasive Section 3(1) which provided that

“For the purpose of Sections 1 or 2 of this Decree it shall be immaterial

(a) that the Edict or instrument concerned was expressed as having been made in exercise of any particular law or power, or that any act or thing done was expressed as having been done in exercise of any power conferred under any particular law,

(b) that where applicable the procedure set out in the Investigation of Assets (Public Officers and other Persons) Decree 1968 or the Public Officers (Special Provisions) Decree 1976 or in any other Decree or enactment has or has not been followed or that the requisite consent under any of those enactments was or was not obtained”

were readily applied to oust the jurisdiction of the High Court. Furthermore as there was a direct challenge to the validity of Edict No. 10 of 1977, Section 6(6)(d) of the 1979 Constitution was equally applicable. Even at the risk of repetition, none of the circumstances mentioned above applies here. No action of the Military Governor has been shown to be involved in this suit, no Edict or statutory instrument made by the Military Governor is being challenged and the proceedings and findings of the Odje Commission of Enquiry have not been directly challenged, and as the learned trial Chief Judge observed, such a challenge would have been futile. In the final result this appeal must succeed and it succeeds. The appeal is allowed. The judgment of the Court of Appeal is hereby set aside. In its place I restore and affirm the judgment of the Benin High Court dated 25th November, 1981 (Ekeruche, C.J.) as well as the consequential orders made and that shall be the judgment of that court. For the avoidance of doubt however, I must add that nothing I have said in this judgment ought to be construed as being prejudicial to the decision of the Odje Commission of Inquiry that the appellant should pay N71,000, a decision which in his own words the appellant ignored. The appellant is entitled to costs which I assess at the Court of Appeal as N200 and in this Court at N300.

G. S. SOWEMIMO, C.J.N. (Presiding): The main crux of this appeal is as to whether any person or authority, which does not come within the definition of “appropriate authority”, comes within the provision of Section 7 sub-section 2(i), and therefore becomes competent. Sub-section 2(i) reads, thus:-

“(2)(i) in respect of any office which was held in right for the purposes of a State, shall be the Military Governor of that State or any person authorised by him,”.

Both sides agreed that the appellant was served with a letter, dismissing him from the Public Service of the State, despite the fact that he had retired prior to the notice of dismissal. The question is as to whether a civil servant could, having retired and therefore have vested rights to pension and gratuity, be justifiably deprived of such vested rights, by changing his retirement to one of dismissal.

The letter of dismissal, Exhibit ‘A’, was signed by a person who described himself as the Secretary of the Public Service Commission of Bendel State. There was no iota of evidence that he was authorised by the Military Governor of Bendel State to issue the relevant letter. The officer therefore becomes incompetent and the letter of dismissal a nullity.

In conclusion, it must be stated that any person or authority, who acts, I without the authority of the Governor, in a manner to divest a retired officer of his retiring benefits, is liable for his action, according to law, not being the appropriate authority.

I have read in draft, the exhaustive judgment of my learned brother, Augustine Nnamani, J.S.C., and I agree with all his reasons so meticulously set out in his judgment. Subject to the little I have said in the above paragraphs, I have nothing to add.

M. BELLO, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Nnamani, J.S.C. I agree with his reasoning and conclusion that the appeal should be allowed, the decision of the Court of Appeal set aside and the judgment of the High Court restored. I endorse the order as to costs and the observation relating to the liability of the Appellant to pay N71,000 arising from the Odje Commission.

I shall only add my reason for holding that the provisions of the Public Officers (Special Provisions) Act 1976, hereinafter referred to as the Act, are inapplicable to the case on appeal. The Odje Commission of Inquiry was appointed on 22nd August 1975 by the Military Governor of the then Midwestern State of Nigeria in the exercise of the powers conferred upon him by the Commission of Inquiry Law (Cap. 23), Laws of Western Region of Nigeria 1959 and by virtue of all other laws enabling him in that behalf. The Act was promulgated on 23rd February 1976 but with retrospective effect from 29th July 1975. Although the Odje Commission was in fact appointed before the enactment of the Act, it appears that because of the retrospective operation of the Act, the Court of Appeal thought that the Odje Commission was deemed to have been appointed pursuant to the Act. Furthermore, because the Public Service Commission purported to have relied on the findings of the Odje Commission in dismissing the Appellant, the Court of Appeal concluded that the Public Service Commission was protected by the immunity against civil proceedings under Section 6(3) of the Act which provides:

“(3) 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 Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.”

Consequently, the Court of Appeal held that the High Court has no jurisdiction to entertain the Suit. With respect, the Court of Appeal did not advert its mind to the provisions of Section 5 of the Act, which reads:

“5. For the avoidance of doubt, any act or thing done at anytime between 29th July 1975 and 1st January 1976 by the appropriate authority in respect of –

(a) the dismissal, removal from office or compulsory retirement of any public officer; or

(b) the conduct of an inquiry into any aspect of the exercise by a public officer of his duties; or

(c) the investigation or forfeiture of the assets of any public officer – shall, unless the act or thing in question was expressed as having been done by the appropriate authority under any other enactment or law, be deemed to have been done pursuant to this Decree.” (italics mine)

It is clear that the provisions of subsection (c) of the section specifically excluded the operation of the Act to any act or thing which was expressly stated as having been done by the appropriate authority under any other enactment or law. By virtue of the interpretative provisions of Section 7(2)(i) of the Act, the Military Governor of the then Mid-Western State was the appropriate authority in the case in hand.

Now, in the Instrument appointing the Odje Commission, Mid-western State Notice No. 399, the Military Governor expressly stated that he acted pursuant to the powers conferred upon him by the Commission of Inquiry Law. It follows therefore that the “unless clause” of subsection (c) of the Section excludes the Odje Commission from the operation of the Act. The Court of Appeal erred in law in according the immunity provisions of Section 6(3) of the Act to the Public Service Commission.

A. O. OBASEKI, J.S.C.: The appellant was a public officer in the service of Mid-Western State now Bendel State of Nigeria and on attaining the compulsory retirement age, retired from the service on the 7th day of June, 1975. This was during the Gowon Military Regime. There was a change of Government on the 29th day of July, 1975 which brought late General Murtala Mohammed to power. He, on assumption of the office as Head of the Federal Military Government, initiated the great purge of the Public services in respect of which Decrees No. 10 of 1976 – Public Officers (Special Provisions) Decrees, 1976 and No.18 of 1977 Tribunals of Inquiries (Validation etc.) Decree 1977 were promulgated.

Decree No. 10 of 1976 gave special powers to the appropriate authority to dismiss, remove and compulsorily retire certain public officers [see Section 1]. The said Decree No. 10 of 1976 also gave power to the appropriate authority to forfeit the retirement benefits of such public officers. For a further appreciation of the extent of the powers vested it is necessary to set out the provisions of the two sections in full. Section 1 reads:

“Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that –

(a) it is necessary to do so in order to facilitate improvement in the organisation of the department or service to which the officer belongs; or

(b) by reason of age or ill-health or due to any other cause a public officer has been inefficient in the performance of his duties; or

(c) a public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or

(d) the general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest;

the appropriate authority may, at any time before 1st January, 1976

(i) dismiss or remove the public officer summarily from his office; or

(ii) require the public officer to retire compulsorily from the relevant service.”

Section 2 reads:

“(1) Where a public officer is dismissed; removed or retired compulsorily, from his office pursuant to section 1 of this Decree, the appropriate authority shall direct:

(a) whether appropriate retirement benefits are to be paid in respect of that officer and if so what proportion of chose benefits are to be paid; or

(b) whether those benefits shall be forfeited.

(2) In this section, the reference to appropriate retirement benefits is a reference to any benefits payable under any enactment or law of the Federation or of a State or under any instrument, providing for the grant of pension, gratuity of compensation to any public officer in respect of his service or to the widow, children, dependants or personal representatives of that public officer in respect of such office.”

Investigations into assets of public officers had to be conducted to ascertain whether an officer had corruptly enriched himself and for this purpose, Section 3(1) of Decree No. 10 of 1976 provides:

(1) For the purpose of ascertaining whether any public officer has been engaged in corrupt practices or has corruptly enriched himself or any other person, the appropriate authority may constitute a panel to conduct an investigation into any matter with which the officer has been concerned in the performance of his duties or to conduct an investigation into the assets of the public officer.

Appropriate authority is defined in Section 7(2) of the Decree which reads:

“In the operation of this Decree, the appropriate authority

(i) in respect of any office which was held in right for the purposes of a State, shall be the Military Governor of that State or any person authorised by him; and

(ii) in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council.”

Section 6(1) excluded any protection of pension rights afforded by the Constitution of the Federation and the Constitution of a State. Section 6(2) made any enactment, law, or instrument (including the Constitution of the Federation and the Constitution of a State) relating to benefit to which the Decree No. 10 of 1976 applies subject to that Decree and Section 6(3) excluded the jurisdiction of the Court. These 3 subsections of Section 6 read:

“(1) For the purpose of this Decree, the operation of the provisions of Section 152 of the Constitution of the Federation and the corresponding provisions of the Constitution of a State which protect certain pension rights are hereby excluded.

(2) The provision of any enactment, law or instrument (including the Constitution of the Federation and the Constitution of a State) relating to the benefit to which this Decree applies, or relating to appointment, dismissal and disciplinary control of a public officer, shall have effect subject to this Decree.

(3) 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 Decree and if any such proceedings has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.”

On the 21st day of July, 1976, the Public Service Commission of Bendel State (Now Civil Service Commission) purported by letter to the appellant to convert the retirement with benefits – pension benefits to dismissal without benefit – pension etc. – The letter bearing date 21st July, 1976 reads:

“SECRET 21, July, 1976

Mr. A. I. Wilson,

Retired Permanent Secretary,

u.f.s. The Secretary to the Military

Government and Head of Service,

Military Governor’s Office,

(Public Service Matters Department)

Benin City.

Dismissal from the Civil Service

I am directed to inform you, with regret, that after very careful consideration of the findings against you by the Nigeria Economic Welfare Services Ltd. and the Odje Commission of Enquiry, with regard to your work and conduct while you were Chairman/Managing Director of the Niger Agencies (International) London and Niger Agencies (International) Nigeria Ltd., the Public Service Commission has decided to amend your retirement to dismissal.

  1. You are accordingly dismissed from the Civil Service of the State with effect from 7th June, 1975.

(Sgd.) V. E. Agherofo

for Secretary

Public Service Commission”

The tenor of the letter shows that the Public Service Commission was acting on its own authority and not under the authority of anybody. There is no indication in it that the Public Service Commission was acting under the authority of the Military Governor. Throughout the proceedings in the High Court, the Court of Appeal and this Court, no evidence was forthcoming to show that the Public Service Commission acted under the authority of the Military Governor so as to bring the Public Service Commission within the definition of appropriate authority.

Thus, in paragraph 12 of the statement of claim, the appellant averred:

“The plaintiff claims that 2nd defendant’s purported act in dismissing him from the service as evidenced by their letter dated 21st July, 1976 is illegal, null and void.”

The respondents, after traversing this paragraph, pleaded in paragraph 4 of their statement of defence:

“….. the plaintiff was dismissed, that his dismissal was in keeping with the law particularly the Public Officers (Special Provisions) Decree (now Act) of 1976”

And in paragraph 6 of the statement of defence, the respondents pleaded that:

“…the acts complained of were done in good faith and without malice by the appropriate authority who had competence to do the acts.”

The respondents would have been on safer ground, if, as alleged, the acts done were done on the authority of the Military Governor, the appropriate authority. Indeed, it was the appropriate authority that was, under the Decree No. 10 of 1976 and Decree No. 18 of 1977, competent to dismiss the appellant.

In the statement of defence, the respondents set themselves the task of establishing before the court the important fact that the dismissal of the appellant was carried out or effected by the appropriate authority. Hence, in paragraph 8 of the statement of defence, the respondents raised the objections as preliminary points of law:

“(a) That the court had no jurisdiction to entertain this suit by reason of provisions of the Investigation of Assets (Public Officers and other Persons) Decree, 1968 and the Public Officers (Special Provisions) Decree 1976;

(b) The defendants, in addition to the above, will contend that by virtue of the provisions of Tribunals or Inquiries (Validation etc.) Decree 1977 particularly Sections 2(1)(a),(b), 2(2), this action is void and shall be so declared and/or that by virtue of the provisions of Sections 1, 2, and 3 of the said Decree, the issues raised in the claim cannot be questioned in the court;

(c) That by virtue of the provisions of Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979, the plaintiff cannot question the competence of the Military Governor or appropriate authority to make the law or orders complained of.”

The Tribunals or Inquiries (Validation etc.) Decree 1977 validated acts, forfeiture orders and dismissals, retirement done or made by the appropriate authority. Relevant to this judgment is Section 2 and this reads:

“Any Edict or subsidiary instrument made by the appropriate authority in respect of the implementation of the report of any tribunal to which Section 1 of this decree applies respecting (a) the forfeiture or other disposal of the property of any person; or

(b) the dismissal, retirement or other exercise of disciplinary control over any public officer of the State or any member of any body, whether corporate or incorporate, in the State shall be deemed to have been validly made or done and shall have full effect in accordance with its tenor.”

Thus, the important question to be determined is whether the respondents have brought forward evidence to establish that the acts of dismissal complained of has been done by the appropriate authority. The answer to this question is clearly in the negative. That being so, the protection afforded by the 3 Decrees

(1) Investigation of Assets (Public Officers and other Persons) Decree 1968;

(2) Public Officers (Special Provisions) Decree 1976 and

(3) Tribunals or Inquiries (Validation etc.) Decree 1977 does not avail the respondents.

The learned Solicitor-General for Bendel State in his contention submitted that the word “any person” in subsection 3 of Section 6 of Decree No. 10 of 1976 is wide enough to embrace the Public Service Commission whose action is being challenged and secure for the respondents the immunity from civil proceedings afforded by that subsection. The relevant part of that subsection which reads:

“No civil proceedings shall be or be instituted on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree.”

requires that what is done should be done by any person under the Decree.

What was the intention of the makers of the Decree Was it their intention that anybody should act under the Decree Or was it their intention that only specified class of persons specified as appropriate authority should act under the Decree I ask these questions because in its natural and literal meaning the term “any person” embraces the whole world. The term has a very wide meaning and except for the con in which it is used, I would have given it the very wide meaning it connotes. This Decree No. 10 of 1976 is in nature similar to penal statutes. In interpreting it, the Rules in Heydons case and the rule of construction exposition ex visceribus actus will be my guide. These are established rules for construing an obscurely penal statute and may be stated as follows:

“That for the sure and true interpretation of all statutes in general be they penal, or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

(1) what was the common law before the making of the Act

(2) what was the mischief and defect for which the common law did not provide

(3) what remedy the Parliament had resolved and appointed to cure the disease of the commonwealth

See also  Michael Adedapo Omisade & Ors V. The Queen (1964) LLJR-SC

(4) the true reason for the remedy.

And the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for the continuance of the mischief and pro privata commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.”

These rules were laid down by the Barons of the Exchequer in Heydon’s case (1584)3 Co. rep. 7a. See 1 B1. Com. ed Hargrave p.87 note 38.

In order properly to interprete Section 6(3) of Decree No. 10 of 1976, it is as necessary now as it was when Lord Coke reported Heydon’s case to consider how the law stood when the Decree was passed, what the mischief was for which the old law did not provide and the remedy provided by the Decree to cure the mischief.

Re: Mayfair Property Co. (1889) 2 Ch. 23, 35 Lindley M.R.

Victoria Sporting Club Ltd. v. Hannem (1970) A.C. 55.

Additional to the Rules in Heydon’s case is a general rule applicable to all statutes alike referred to as construction ex visceribus actus – within the four corners of the Act.

“The office of a good expositor of an Act of Parliament” said Lord Coke in Lincoln College case (1595) 3 Co. Rep. 58B” is to make construction on all parts together and not of one part only by Itself – Nemo enim aliquam partem recte illeligere protest antequam tatum iterim perlegeril [for no one can rightly understand any part without perusing the whole again and again”.

Applying the above rules and considering subsection 3 of Section 6 with Sections 1, 2, 3, 4, 5 and 7 “any person” in Section 6(3) cannot but refer to the appropriate authority, i.e. the Military Governor or any person authorised by him. The Public Service Commission, therefore, on the state of the evidence, cannot and does not qualify as appropriate authority.

A detailed examination of Uwaifo v. Attorney-General of Bendel State & 2 Ors. (1982) 7 S.C. 124 which the respondents relied on heavily in support of their objection to the jurisdiction of the High Court, shows that it is distinguishable on the facts. In that case, the respondents pleaded facts and adduced evidence which established that the acts complained of by the appellant therein were acts done by the appropriate authority as defined under the Decree No.10 of 1976.

A detailed examination of the facts and the relevant decrees has been made by my learned brother, Nnamani, J.S.C. in his judgment just delivered the draft of which I had the advantage of reading in advance.

For the above reasons and the reasons set out in the said judgment of my learned brother, Nnamani, J.S.C. I too will allow the appeal and I hereby allow the appeal, set aside the decision of the Court of Appeal and restore the decision of the High Court, (Ekeruche, C.J.) with costs to the appellant fixed at N300.00.

M. L. UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Nnamani, J.S.C. I entirely agree with it. Accordingly, the appeal is dismissed with costs to the appellant as assessed in the said judgment.

B. O. KAZEEM, J.S.C.: In this appeal, the facts of which have been thoroughly set out in the lead judgment of my learned brother Nnamani, J.S.C., the appellant has sued the respondents in the High Court of Justice, Benin City for certain reliefs consequent upon his receipt of a letter dated 21st July, 1976 from the 2nd respondent – Exh. 2A – which converted the appellant’s compulsory retirement on the ground of age to one of dismissal with effect from the 7th of June, 1975. The High Court, Benin City on trying the issues granted all the reliefs claimed by the appellant after it had ruled on the preliminary objection that it had jurisdiction to entertain the suit.

Upon an appeal by the respondents to the Court of Appeal, Benin City, the issue of whether or not the High Court, Benin City, had jurisdiction to try the suit was again raised as grounds of appeal. It was contended that by virtue of the ouster clauses in the Investigation of Assets (Public Officers and other Persons) Act of 1968 (Act No. 37 of 1968). The Public Officers (Special Provisions) Act, 1976 (Act No. 10 of 1976), and the validating clause in the Tribunals or Inquiries (Validation etc.) Act, 1977 (Act No. 18 of 1977), the jurisdiction of the High Court to entertain the suit of the appellant has been ousted by the law. The point was also made that the appellant was a public officer within the meaning of Section 13(1) of Act No. 37 of 1968 and 7(1) of Act No. 10 of 1976. The Court of Appeal after considering the submissions of the respondents as well as the appellant decided that the jurisdiction of the High Court to entertain the appellant’s suit has been ousted. The appellant then further appealed to this Court against that decision.

In this Court the appeal was fought on two main issues namely:-

(i) That the appellant was no longer a public officer so as to be dealt with again at the material time in the manner provided for by the Public Service Commission of Bendel State (2nd respondent) in that he the appellant had already retired compulsorily from the Civil Service on the ground of age since 7th June, 1975, whereas the letter of the 2nd respondent – Exh. 2A – that purported to dismiss him was dated 21st July, 1976;

(ii) that the 2nd respondent that wrote the letter – Exh. 2A – was not an appropriate authority as defined in Act No. 18 of 1977. The Suit was therefore not affected by the ouster clauses in those laws and the respondents could not be saved from any litigation instituted against them.

The first issue has already been decided by this Court in the case of Uwaifo v. The Attorney-General of Bendel State (1982) 7 S.C. in which it was held that a person is a public officer if he comes within the meaning of Section 13(1)(a) of Act No. 37 of 1968 and Section 7(1) of Act No. 10 of 1976.

These sections provide as follows:-

In Section 13(1)(a) of Act No. 37 of 1968 the words “public officer” are defined to mean (a) any person who on or after 1st October, 1960 holds or has held any office in any of the public services of Nigeria.

In Section 7(1) of Act No. 10 of 1976, the same words are defined as “any person who holds or has held any office in –

(a) the public service of the Federation within the meaning of the Constitution of the Federation; or

(b) the public service of a State within the meaning of the corresponding provisions of the Constitution of the State:

(c) the service of a body whether corporate or incorporate established under a Federal or State law;

(d) a company in which any of the Governments in the Federation has controlling or substantial interest – and for the purpose of this Decree includes any person who at any time before the commencement of this Decree held office as a member of the Supreme Military Council, or the Federal Executive Council (or Administrator) of a State or a Commissioner in the Government of the Federation or of a State.”

In applying those definitions to the status of the appellant in this appeal, I am satisfied that he was a public officer at the material time even though he might have previously retired compulsorily on the grounds of age.

As regards the second issue, I have had the opportunity of reading in draft the very lucid judgment of my learned brother Nnamani, J.S.C. He has carefully considered the issue of ouster clauses in relation to the jurisdiction of the High Court, Benin City and I entirely agree with him that in so far as there is nothing on the face of the letter from the 2nd respondent – Exh. 2A showing that it was issued by or authorized by the appropriate authority of the Military Governor of Bendel State, the provisions of the ouster clauses could not affect the jurisdiction of the High Court of Benin City.

In the circumstances, I will also allow the appeal, restore the judgment of the High Court, Benin City and make the same orders made by the Honourable Chief Justice of Nigeria as well as those in the lead judgment.

C. A. OPUTA, J.S.C.: The main facts of this case are quite simple and straightforward. They are as follows:-

  1. At all material times until 6th June, 1975 the appellant was an Administrative Officer, Principal Staff Grade in the Public Service of the Bendel State Government.
  2. On 7th June, 1975 the appellant was compulsorily retired from the Bendel State Public Service having attained the retiring age of 55 years.
  3. In 1975 the Governor of Bendel State by Instrument No. 399 published as Mid-Western State of Nigeria Extraordinary Gazette No. 46 Vol. 12 of 22nd August 1975 appointed the Odje Commission of Inquiry to inquire “into the Constitution, Structure, functions and operation of Statutory Corporations, Boards and Government-owned/Sponsored Companies.”
  4. This Panel found that the appellant whilst a public officer corruptly enriched himself to the tune of N71,000.
  5. The Bendel State Government accepted the recommendations of the Panel and then wrote to the appellant to refund the said sum of N71,000.00
  6. The appellant neither paid the said amount of N71,000.00 nor did he challenge or dispute the Panel’s findings against him.
  7. In the words of the Appellant’s Brief “the appellant ignored the said letter.”
  8. Obviously angered by the appellant’s behaviour the Civil Service Comrnission the 2nd Respondent, issued a letter dated 21st July, 1976 tendered as Exhibit 2A retrospectively amending the retirement of the appellant of 7th June 1975 to read dismissal.

Thereupon the appellant brought an action against the Respondents in the Bendel State High Court claiming principally a declaration that his purported dismissal, one full year after his compulsory retirement, “is invalid and void” and another declaration that he is entitled to be paid N71,000.00 being Gratuity due to him upon Retirement plus all pensions as and when due and/or other retiring benefits.

The Plaintiff/Appellant succeeded in the Court of first instance – the Bendel State High Court which ruled that it had jurisdiction to entertain the appellant’s action but lost in the Court of Appeal Benin Division on the issue of ouster of jurisdiction. He now appeals to this Court. The main questions for determination as formulated by the appellant’s counsel in her Brief are two:

i. On the facts and evidence in this case as established in the trial Court and from the submission of Defence Counsel both in the trial Court and in the Federal Court of Appeal, can a finding be maintained that Exhibit 2A was issued on the authority of the Appropriate Authority as defined by Acts No. 37 of 1968; No. 10 of 1976 and No. 18 of 1977

ii. Does the immunity from Court proceedings conferred by the ouster clauses in the said Acts afford protection from Court proceedings to persons other than the Appropriate Authority or those expressly authorized by him

Six grounds of appeal were filed and argued in this Court. These grounds after his retirement, was still a public officer within the definition and meaning of that expression in the relevant Acts as well as the rejection by the Court below of learned Counsel’s submission that the Public Service Commission qua Public Service Commission is not the Appropriate Authority, and that it is only the act of the Appropriate Authority that is covered by the ouster clauses.

I have had the privilege of reading in draft the leading judgment just delivered by my learned brother Nnamani, J.S.C. I completely agree with his valid reasoning and conclusions. The first issue that calls for a decision is:-

On 21st July 1976 when Exhibit 2A was written by the Public Service Commission of Bendel State was the appellant still a person employed in the Public Service

It is common ground that the appellant was compulsorily retired from the Public Service of Bendel State on attaining the age of 55 years on 7th June 1975. In its ordinary and popular meaning retirement from the public service would imply a withdrawal from that service which itself will further mean that the appellant is no longer a member of that Service. Again ordinarily, dismissal imports a release from, a discharge from service or office. It follows then, and ordinarily also, that when a person has left an office or has retired from a certain service he cannot again be dismissed from that same office or service.

In law however 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 popular meaning will surely give way to their meaning as legally, or judicially defined.

The expression “Public Officer” has been defined in Section 7(1) of the Public Officers (Special Provisions) Decree now Act No. 10 of 1976 as:-

“Public Officer means any person who holds or has held any office in:-

(b) the Public Service of a State…..

(c) the service of a body whether corporate or unincorporated established under a Federal or State law;”

It is common ground that the appellant was at all material times until 6th June 1975 an Administrative Officer in the Bendel State Public Service. The definition in Section 7(1) of Act No. 10 of 1976 above is wide enough to comprehend and include both serving officers or retired officers, as well as officers who resigned or who were dismissed. The question whether the appellant in spite of his retirement in 1975 was, in 1976 when Exhibit 2A was issued, still a Public Officer, cannot but be answered in the affirmative. He was a Public Officer as defined by the relevant Act No. 10 of 1976.

There is no dispute that the appellant was dismissed from the public service of the Bendel State on 21st July, 1976. There can be no controversy over the powers of the Public Service Commission of Bendel State to dismiss public officers. It definitely has that power but the exercise by the Public Service Commission of its powers to dismiss public officers is subject to Public Service Rules and Regulations, to constitutional guarantees in Section 33 of the 1979 Constitution which provide for and stipulate fair hearing and compliance with the rules of natural justice. Another authority with power to dismiss a public officer under Acts No. 10 of 1976 and No. 18 of 1977 is the Appropriate Authority which expression is defined in Section 7(2)(i) of Act No. 10 of 1976 as ‘”the Military Governor of the State or any person authorised by him”. The difference in the powers of the Military Governor as the Appropriate Authority and those of the Public Service Commission qua Commission is that whereas the Appropriate Authority under Section 6(3) of Act No. 10 of 1976 enjoys an immunity from civil proceedings the Commission qua Commission does not. The main and substantial issue in this appeal is thus narrowed down to one simple straightforward question:-

Was Exhibit 2A (the letter dismissing the appellant from the Public Service of Bendel State) issued by the Public Service Commission qua Commission or was it issued by the Commission acting under the authority of the Military Governor of Bendel State

If Exhibit 2A was issued by the Public Service Commission qua Commission then all the arguments about ouster of jurisdiction are all misconceived and inapplicable. Those arguments will however be valid if the Commission was authorised by the Military Governor of Bendel State to issue Exhibit 2A for then the Commission will fit into the definition of Appropriate Authority” in Section 7(2)(i) of Act No. 10 of 1976. It will then claim the immunity from court proceedings provided by Section 6(3) of Act No. 10 of 1976.

At this juncture it may be at least convenient, if not imperatively necessary, to reproduce Exhibit 2A:-

No. S.100/T/22 Secret

Mr. A. I. Wilson, 21st July, 1976

Retired Permanent Secretary,

u.f.s. The Secretary to the Military

Government and Head of Service.

Military Governor’s Office.

Public Service Matters Department,

Benin City.

Secret

Dismissal from the Civil Service

I am directed to inform you, with regret, that after very careful consideration of the findings against you by the Nigeria Economic Welfare Services Limited and the Odje Commission of Enquiry with regard to your work and conduct while you were Chairman/Managing Director of the Niger Agencies (International), London and Niger Agencies (International) Nigeria Limited, the Public Service Commission has decided to amend your retirement to dismissal.

  1. You are accordingly dismissed from the Civil Service of the State with effect from 7th June, 1975.

(Sgd.) V. E. Agherofo

for Secretary,

Public Service Commission

Secret

From Exhibit 2A above it is obvious that it was “the Public Service Commission” that “decided to amend your retirement to dismissal”. There is nothing in Exhibit 2A that links the Military Governor with the dismissal of the appellant. It is true that Exhibit 2A started with the usual official cliche “I am directed” but in the absence of express mention of any other directing authority, it will be presumed that the Secretary to the Public Service Commission who wrote Exhibit 2A was directed by the Commission to write Exhibit 2A. That is the normal thing. If the direction to write Exhibit 2A came from any other Authority say from the Military Governor, the ONUS of proving the directing authority rested squarely on the 2nd Defendant/Respondent. The Court of first instance hinted this in its Ruling at p.2 of the records:

“…. There is nothing before me to show that the said laws are applicable in the present suit. There is no evidence before me of the acts purportedly done under those laws, if any acts were so done….”

The dismissal of the appellant is one of the acts that sparked off this whole case. The only available evidence of who dismissed the appellant is Exhibit 2A which ex facie attributes the act of dismissal to the Public Service Commission and to no one else. After the close of the Plaintiffs case at p.24 of the records, the Court of Trial made this note.

“Note: Adezmani says defendants are offering no evidence

We are now back to square 1, back to Exhibit 2A which is now the only evidence of who dismissed the Appellant. The conclusion one is driven to is that the Public Service Commission wrote Exhibit 2A qua Commission and not in the language of Section 7(2)(i) as “any person authorised by him” that is the Military Governor.

It has been submitted by learned leading Counsel for the Respondents that Section 6(3) of Act No. 10 of 1976 is elastic enough to include the Public Service Commission qua Commission within its ambit. That subsection provides:

S.6(3) “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 Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.”

It is correct that the above subsection refers “to act, matter or thing done or purported to be done by any person”. It is also true that the dismissal of the appellant is an act. It is conceded that the Public Service Commission qua Commission can answer to the definition of “any person”. So far so good. But that is not the end of the story. To avail oneself of the immunity from civil proceedings provided by the ouster clause, the person doing the act complained of must be “any person under this Decree” not just any person outside the Decree No. 10 of 1976 (now Act No. 10 of 1976). Now who are the person contemplated by the Act No. 10 of 1976 Section 1 and 2 specifically mention the” Appropriate Authority”.

Section 7(2)(i) of the same Act No. 10 of 1976 defined the Appropriate Authority as the Military Governor of the State or any person authorised by him. It is thus my humble view that “any person” referred to in Section 6(3) of the Act No. 10 of 1976 must be interpreted to agree with Sections 1 and 7(2)(i) of the self same Act. This then means that the immunity provided by Section 6(3) will apply to the acts done by the Military Governor and to acts done by any person authorised by the Military Governor. Exhibit 2A was not issued by the Military Governor. It was not issued under his authorisation by the Public Service Commission. I therefore hold the view that the Respondents in this case cannot successfully invoke the aid of the ouster clause in Section 6(3) of Act No. 10 of 1976.

That being so Ekeruche, C. J. was right in holding that the Bendel State High Court Benin Division had jurisdiction to hear the appellant’s then Plaintiff’s claims. The Court below with the greatest respect, was definitely wrong in holding that the ouster clauses in Act No. 10 of 1976 and Act No. 18 of 1977 robbed the Courts of jurisdiction. In the surrounding and peculiar circumstances of this case, the ouster clauses were inoperative as the act of dismissal of the appellant had not been shown to be the act of the appropriate authority to whom alone the immunity from judicial proceedings attaches.

As regards Decree, now Act No. 18 of 1977, it is to be noted that its main aim and intendment was to validate proceedings of tribunals or inquiries instituted by the Appropriate Authority. The ouster clause in its Section 1(2) will be an effective shield had the main issue in this case been the validity or otherwise of the appointment or constitution of the Odje Commission. From the facts of this case, it is true that it was the report of the Odje Commission and the appellant’s failure to comply with the panel’s recommendations that he refunds the sum of N71,000.00 corrupt enrichment, that led to his dismissal but all the same the central issue still is:

Was that dismissal unconstitutional, illegal and therefore void or was it constitutional, legal, valid and effective

What led to the dismissal becomes a subsidiary issue. In any event, the ouster clause in Section 1(2) of the Act No. 18 of 1977 will operate if this appeal was based on any defect of the Odje Commission. Furthermore it will operate if it is the act of the appropriate authority in setting up the panel or commission that is in issue.

I have not discussed other aspects of this appeal which were ably dealt with in the leading judgment. There will agree with and adopt the conclusions arrived at by my learned brother Nnamani, J.S.C.

In the final result and for the reasons given above and for the more detailed reasons given in the leading judgment of my learned brother Nnamani, J.S.C., I will allow this appeal, set aside the judgment of the Court of Appeal, Benin Division and affirm and restore the judgment of Ekeruche, C.J., dated 25th November, 1981. This judgment is without prejudice to the right of the Bendel State Government to recover the a month of N71,000.00 which the Odje Commission found against the appellant. The appellant is entitled to his costs which I assess at N300.00.

Appeal Dismissed,

Decision of the Court of Appeal set aside,

Decision of the High Court restored.


SC.93/1983

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