C. T. Tyonzughul V. Hon. Attorney-general, Benue State & Ors. (2004)

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OLUDADE OLADAPO  OBADINA, J.C.A

This is an appeal against the decision of the Benue State High Court sitting at Makurdi, contained in the judgment of Ogbole, J. delivered on 21/9/98. The appellant was the plaintiff at the trial court, while the respondents were the defendants.

According to the appellant, the plaintiff/appellant is a medical doctor and was at all times material to this case, the Acting Director of Primary Health and Disease Control with the Benue State Ministry of Health, Makurdi. In that capacity, he was the Administrative Head of the Department, the major function of which was the prevention and combating of diseases and epidemics. In January, 1995, there was an outbreak of cerebrospinal meningitis in several Local Government Areas of Benue State, including Oju and Kwande Local Government Areas.

The appellant through his Commissioner, sought for and obtained funds from the Military Administrator of the State to purchase vaccines. The vaccines were supplied and dispensed in combating the epidemic. The vaccines were bought for (N667,000) six hundred and sixty-seven thousand Naira. The vaccines were not enough. Consequently, the appellant placed a further order for vaccines worth three million Naira (N3,000,000), when he travelled to Lagos. The order was made on the directive of his Commissioner. On his return from Lagos, his Commissioner sent one Mr. Femi Sawyer with an offer to supply the CSM vaccines, even though, Mr. Femi Sawyer did not submit any quotation for supply of vaccines.

The appellant demanded for quotation. Mr Femi Sawyer submitted a quotation which was less favourable in terms than that of Cillon Pharmaceuticals Ltd., who supplied the earlier vaccines. The appellant preferred that Cillon Pharmaceuticals Ltd. should supply the vaccines and gave his reasons to the Commissioner. The Commissioner agreed and wrote to the Military Administrator requesting for funds to pay Cillon Pharmaceuticals Ltd. The Military Administrator was equally briefed on the up to date situation of the epidemics in Benue State on 8/3/95.

On 13/3/95, the substantive Commissioner for Health re-opened the matter. A committee was constituted to investigate the way and manner the vaccines were procured. The committee found that the appellant misappropriated some funds and recommended that the appellant be relieved of his post in the ministry and be made to refund a sum of (N667,000) six hundred and sixty-seven thousand Naira to the Government of Benue State. The Ministry of Health, Benue State, then summoned a meeting of Personnel Management Board, which, according to the appellant, no longer existed, to rubber stamp the decision of the investigation committee. Consequently, the appellant was dismissed by the military administrator who also directed the 2nd respondent to recover the sum of (N667,000) six hundred and sixty-seven thousand Naira from the appellant. That is the appellant’s version of the story.

According to the respondents, the appellant was a medical doctor and Acting Director of Primary Health Care and Disease Control with the Ministry of Health, Benue State. He was the administrative head of the Department and his major function was prevention and combating of diseases and epidemics.

In January, 1995, there was an outbreak of cerebrospinal meningitis (CSM) in Oju and Kwande Local Government Areas of Benue State. According to the respondents, on 6th of February, 1995, the Federal Ministry of Health donated 30,000 doses of cerebrospinal meningitis (CSM) vaccines to the State for vaccination exercise. As the quantity of the vaccine was inadequate, the Commissioner for Health wrote to the Military Administrator on 8th February, 1995 requesting for release of (N3,798,000) three million, seven hundred and ninety-eight thousand Naira for purchase of 200,000 doses of CMS vaccines. On 10th of February, 1995, the request was approved and the money was released to the Ministry for the purpose. On 16th February, 1995, the appellant placed order for the supply of vaccines by way of contract without necessary directive and approval, and thereby committed funds in excess of (N3,000,000.00) three million Naira without relevant authority and in disregard of laid down financial procedures.

A disciplinary action was therefore instituted against the appellant and consequently, he was dismissed from the service by the Military Administrator under the provisions of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990. He was also directed to refund the sum of (N667,000.00) six hundred and sixty-seven thousand Naira to the government, being the amount misappropriated by him during the purchase of the CSM vaccines. The appellant repeatedly appealed to the Military Administrator to re-consider the matter. When the Military Administrator refused to reconsider the matter, the appellant instituted this action against the respondents, claiming (15) fifteen reliefs.

The case went into full trial before the trial court. After the plaintiff/appellant closed his case, the respondents raised a preliminary objection to the competence of the action. In his considered ruling dated 21st of September, 1998, the learned trial Judge upheld the objection and dismissed the action. It is against the decision contained in the said ruling that the appellant has appealed to this court.
The appeal is predicated on six (6) grounds of appeal. From the six grounds of appeal, the appellant formulated six (6) issues.

The issues read as follows:-
“(1) Whether the learned trial Judge was right in dismissing the entire suit when the relief sought in the preliminary objection was that of striking out prayers 56(6), (7), (9) and (15) which deal with the dismissal of the appellant? (Based on ground 1);

(2) Whether the learned trial Judge was right in dismissing the suit instead of striking out same after having ruled that he lacked jurisdiction to hear it? (Based on ground 2);

(3) Whether mere admission by a party or parties to a suit can discharge the burden of proving a statutory requirement? (Based on ground 3);

(4) Whether or not the trial court was correct in holding that the Military Administrator was acting within the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990, when he dismissed the appellant from service and imposed monetary fine on him? (Based on ground 4);