Evaristus D. Egbebu V. The Inspector General of Police & Ors (2005)

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MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

This is an appeal against the decision of the Federal High Court, Holden at Port Harcourt, declining jurisdiction to hear and determine the suit of the Appellant.

The Appellant, as Plaintiff before the trial Court (and shall herein after be referred to simply as the Appellant), had taken out a suit No. FHC/PH/54/97 at the Federal High Court, Port Harcourt, seeking the following reliefs:

1. A declaration that non of the three investigating panels set up to investigate the Hausa Traders armed robbery incident of 1990, found the plaintiff guilty of any collusion with the Armed Robbers or of any dereliction of duty.
2. A declaration that compulsory retirement of the plaintiff having been based on the incident of the Okigwe Hausa Traders incident of 1990, of which the Plaintiff has been absolved of any complicity is wrongful, unfair and unsustainable.
3. An order of Court setting aside the compulsory retirement of the contained in a letter No F.1036/95 dated 6th March, 1991.
4. An order of Court for the reinstatement of the plaintiff to his rank in the Nigeria Police Force without loss of seniority, and payment of all salaries, emoluments and entitlements from 27th October, 1990, till determination of this case.

OR IN THE ALTERNATIVE

5. An order of court that plaintiff be paid his salaries and entitlement from 27/10/90 (date of compulsory retirement) 31st July, 2013, being the date plaintiff complete 35 years in service as provided in the civil service Rules.

The Appellant had obviously been compulsorily retired from the Nigeria Police Force, his chosen career.

Upon Notice of Preliminary Objection field by the Defendants (two shall hereafter be referred to simply as the Respondent) the jurisdiction of the Federal High Court to hear and determine the suit of the Appellant was challenged. The Respondents cited and relied upon the ouster clause of section 3(3) of Decree No 17 of 1984 as having taken away the jurisdiction of the Federal High Court.

After taking arguments from both sides, the learned judge of the Federal High Court delivered a Ruling declining jurisdiction and thereby striking out the suit of the Appellant.

Dissatisfied by the decision of the Federal High Court, the Appellant has come before this Court upon a total of four grounds of Appeal urging us to reverse the decision of the trial Federal High Court and to remit the suit for trial on the merit by the Court.

The Appellant formulated two issues upon the four grounds of Appeal filed. These are:

1. Whether the defendant/respondents complied with the provisions of Decree No 17 of 1984 to warrant the enforcement of this ouster clause.
2. Whether the ruling of the lower Court is sustainable in view of the provisions of the AFRICA CHARTER ON HUMAN AND PROBLEMS RIGHT (RATIFICATION AND ENFORCEMENT) ACT CHAPTER 10 LAWS OF THE FEDERATION OF NIGERIA 1990.
3. Whether the lower Court had jurisdiction to entertain the matter.

The Respondents abandoned the third issue formulated as no argument was proffered on same. Issue No. 3 accordingly hereby struck out.

The appeal shall be determined on the issues formulated by the Appellant which issues I find as flowing directly from the grounds of appeal.

The Appellant’s stance is to fault the Respondents’ reliance on the ouster clause in section 3(3) of the Decree No 17 of 1984. It is the submission of the learned Counsel that although the Appellant was said to have been compulsorily retired under the provisions of Decree No.17 of 1984, no evidence was placed before the trial Court to convince the Court that the provisions of the said Decree were actually complied with. The trial court was thus, not in a position to determine that the 1st Respondent the Inspector-General of Police, who signed the letter of compulsory retirement actually had the requisite authorization to take such a decision. Counsel cites the authority of the case of FCDA V. Alh. Musa Naibi (1990) 3 NWLR (pt 138) 270 at 280 to buttress his argument.

It is further the postulation of the learned Counsel that Exh PF, the letter which conveyed to the Appellant, the fact of his compulsory retirement state that the 1st Respondent derives his powers to issue those orders from the instrument of authority conferred on him by the President, Commander in Chief of the Armed Forces as contained in the instrument of delegation given and issued on the 6th day of a July, 1989.

The said instrument was however not placed before the trial Court. Calling in aid the authority of the Supreme Court decision in the case of Katto v. CBN (1981) 9 NWLR (Pt 214) p 126 at 145, the learned Counsel submits that a mere assertion in Exh PF is not sufficient. Counsel maintains that the non-production of the said instrument of authorization was an invitation to the Court to act on instinct which a court of law is allowed to do.