Federal Capital Development Authority V. Joshua Gyuhu Sule (1994) LLJR-SC

Federal Capital Development Authority V. Joshua Gyuhu Sule (1994)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C. 

This appeal has raised once again the interpretation of S.4(2) of the Public Officers (Special Provisions) Decree No. 17 of 1984. Before going into the said Decree (hereinafter referred to as Decree No. 17 of 1984), I ought to state the facts which led to the action filed by the respondent.

The respondent who was a Principal Architect under the appellant filed an action in the High court of Justice of Federal Capital Territory, Abuja and by his amended Statement of Claim claimed the following reliefs:

“(1) Declaration that the letter reference No. FCDA/55/S.4/Vol.1/149 dated 31st of December, 1985 and signed by Shehu Dawaki purporting to terminate his appointment as Principal Architect with the defendant is illegal, null and void having been issued in disregard of rules of Natural Justice.

(2) Declaration that the purported termination of the plaintiff’s appointment by a Permanent Secretary vide letter reference No. FCDA.55/S.4/Vol. 1/149 is irregular and/in bad faith, and/or in breach of rules of Natural Justice and/or done without any legal authority and is therefore null and void.

(3) Declaration that the purported ter

mination of the plaintiff’s appointment by a Permanent Secretary Federal Capital Development Authority, Abuja vide letter reference No. FCDA.55/S.4/Vol. 1/149 dated 31st of December, 1985 was not done or purported to be done under Decree No. 16 of 1984, or and Decree No. 17 of 1984, therefore is null and void.

(4) Declaration that the plaintiff has been an Architect in the Building Department of the Federal Capital Development Authority Abuja since 3rd of August, 1978 and is still a Principal Architect in the Federal Capital Development Authority Abuja, and therefore entitled to rights, benefits and privileges (including) salaries attached to his office as Principal Architect in the Federal Capital Development Authority Abuja.

ALTERNATIVELY:

(5) Declaration that the plaintiff is entitled to salaries and other allowances attached to his post as Principal Architect as damages for loss of his post as Principal Architect of the Building Department of Federal Capital Development Authority Abuja until he attains the age of 65 years.”

The appellant in paragraphs 10 and 13 of its Statement of Defence among other things relied on Decree No. 17 of 1984 and that the action filed by the respondent was frivolous and incompetent. To bring out this defence, I reproduce hereunder paragraphs 10 and 13 of the Statement of Defence which read as follows:

“(10) In answer to paragraph 18(3) of the Statement of Claim, the defendant avers that the plaintiff’s appointment was terminated as required under Decree No. 17 of 1984 which specifically ousts the jurisdiction of the court in this suit. The defendant will lead evidence to this effect and calls on the plaintiff to proof (sic) the contract strictly.

(12) x x x x

(13) The defendant urges this Hon. Court to strike out this case because it is frivolous, vexatious and most of all incurably incompetent as the Court has no jurisdiction to entertain the matter, and the defendant would before or at the hearing be heard to argue this paragraph pursuant to the provisions of order 10 Rule 21 of the Federal Capital Territory High Court (Civil Procedure) Rules 1985.”

I will now refer to the appellant and the respondent as defendant and plaintiff respectively.

It is common ground in the action that the plaintiff was employed by the defendant on 3rd day of August, 1978 as Architect Grade I in the Building Department of the defendant. He was promoted in the course of his employment and later became the Principal Architect and was in this position until 31st December, 1985. It was however on 8th October, 1985 that the plaintiff’s services were suspended by the defendant and he was asked to submit a written report on four issues. A committee was set up by the defendant to look into the entire operations of the Building Department. He and others appeared before the committee but that there was no specific allegation or wrong-doing put to him. He and others were merely asked routine questions without any specific allegation or accusation of any wrong-doing. It was through the defendant’s letter reference No. FCDA/55/S.4/Vol. 1/149 dated 31st December 1985 and signed by one Shehu Dawaki that his appointment was purportedly terminated. As at the time the said letter was handed over to him he was 33 years of age and by the terms of his employment he should be with the defendant until he has attained the age of 65 years. It was his case that the purported termination of his appointment was a violation of the Federal Civil Service Rules which govern his appointment.

The defence filed by the defendant admitted that the plaintiff was employed by the defendant in the capacity stated by him. It however averred that when the late Major-General Mamman Vatsa was the Minister in charge of the Federal Capital Territory, he carried out an official inspection of the building operations in Abuja. It was as a result of his findings that the Minister decided to suspend the Director of Building and 17 of his subordinates of which the plaintiff was one. It was after the suspension that a committee was set up by the Minister to investigate the operation and performance of the Building Department of the defendant. The committee submitted its report and recommendations. A White Paper was issued and that the Minister approved the termination of the plaintiffs appointment. As earlier stated, the defendant relied on Decree 17 of 1984 which ousts the jurisdiction of the Court.

The defendant later filed a motion on notice praying the Court to strike out the suit filed for lack of jurisdiction. There was an affidavit in support of the prayer. Paragraphs 10 and 11 of the affidavit are germane to the objection raised to the competence of the suit. They read:-

“10. That after the committee’s report and recommendation, a “White Paper” known as the Minister’s views and comments was issued on the committee’s finding and recommendations.

The Minister’s views and comments would be founded upon at the hearing of this motion: Annexure ‘B’.

11. That it was after the Minister had approved his termination of appointment that a letter to that effect reference No. FCDA.55/S.4/Vol.II/149 of 31st December, 1985 was issued and served on the plaintiff/respondent.

The Minister’s approval would be founded upon at the hearing of this motion: Annexure C.”

On 7th August, 1986, the learned Chief Judge, Saleh, C.J., over-ruled the objection raised as to his jurisdiction and the case was adjourned to 27th October, 1986 for hearing. On 27th October, 1986, the plaintiff gave evidence and tendered 10 documents as exhibits. He was not cross-examined on that day because learned counsel for the defendant, Mrs. C. C. Abalaka asked for adjournment to study the “papers”; apparently the exhibits tendered. The case was then adjourned to 11th November, 1986. From the record of appeal, the case came up on 11th November, 1986 but it was not until 19th September, 1988 that Mrs. Abalaka indicated that she had no questions. She did not cross-examine. The plaintiff then closed his case. Defence counsel did not call any witness. Mr. Tunyan addressed the court. After Mrs. Abalaka has reviewed the plaintiff’s case, the records reads thus:

“Abalaka: I wish to say I have no reply to the points of law and I wish to close my case.”

(See p. 56 lines 19-20 of the record of appeal).”

The Court then adjourned for judgment. On 15th December, 1988, Saleh, C.J., granted all the declarations sought as per the Amended Statement of Claim. The defendant appealed to the Court of Appeal, Kaduna Division. The Court of Appeal coram: Uthman Mohammed, J.C.A., (as he then was) Ogundere and Achike, JJ .CA., in a unanimous decision dismissed the appeal. The defendant has again appealed to this Court. The issue of jurisdiction raised in this Court was raised also in the lower court.

The parties filed their briefs. The defendant in its brief of argument formulated two issues:-

‘(a) Whether or not by approving the White Paper as a whole instead of item ‘iv’ in the Permanent Secretary’s minutes specifically the Honourable Minister, Ministry of Federal Capital Territory approved the termination of the respondent’s appointment and that his act was done for the purposes of the Public Officers (Special Provisions) Decree No. 17 of 1984.

(b) Whether the court below considered all the appellant’s complaints as contained in the grounds of appeal filed and argued before it and whether the court below determined fully the issue raised in the appellant’s appeal before it.”

The plaintiff did not formulate any issue but it would appear he agreed with the issues formulated by the defendant as the plaintiff’s brief was a reply to the two issues raised by the defendant. Suffice it to say the two grounds of appeal filed against the judgment of the lower court are covered by the two issues formulated in the defendant’s brief.

At the hearing of this appeal, Mr. Oyeyipo, the learned counsel for the defendant after referring us to pages 17B and 17C filed so as to complete the record of appeal adopted his brief filed on 29/2/91. Learned counsel said it was not in dispute that the Minister for the Federal Capital Authority is the appropriate authority by virtue of S. 1(1)(d) of Decree 12 of 1985 – Minister of the Federal Capital Territory (Delegation of Powers) Decree. According to learned counsel, the issue now is whether the Minister for the Federal Capital Development Authority took the decision to terminate the plaintiff’s employment. He pointed to Exhibit 10, the letter of termination of the plaintiff’s appointment which was not signed by him. He contended that the decision to terminate the plaintiff’s appointment was made by the Minister. He referred to Pages 13 – 20 of the record of appeal and Pages 17B and 17C and item 11 on Page 17C, and that paragraph 11 of the affidavit in support of the motion filed to strike out the plaintiff’s suit for lack of jurisdiction “supplied the missing link”. He finally urged the Court to allow the appeal. We did not call on Mr. Tunyan, the learned counsel for the plaintiff to reply.

Before going into the major argument and submissions in respect of Decree 17 of 1984, I will treat issue II, i.e. that the lower court made no pronouncement in respect of other grounds of appeal covered by issue II before that court.

The general rule is that all issues submitted for the consideration of the court should be treated. Non-consideration of the issue submitted by a party may lead to a miscarriage of justice. To this general rule there are exceptions. The issue of jurisdiction is so fundamental to every adjudication that it must be considered. Where the Court lacks jurisdiction, it is unnecessary to consider other issues: Madukolu & Ors. v. Nkemdilim (1962) All NLR 587. I agree with the conclusion reached by the defendant’s counsel where in his brief the learned Senior Advocate said:

“It is conceded that a Court of Appeal may determine an appeal by considering one ground of appeal only out of many grounds if determination of that ground finally determines the matter,”

(underlining supplied for emphasis).

He cited Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796 at 804-5. Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt. 38) 687/695. The major issue pursued was dealt with by the lower court, but even on the evidence adduced at the trial and the consideration given to the case of the parties, and even if these grounds of appeal covered by the issues raised in the lower court were not dealt with, it has not occasioned a miscarriage of justice: Balogun v. Labinran (1988) 1 NSCC 1056/1066; (1988) 3 NWLR (Pt.80) 66.

I now come to issue NO.1 which in the main is whether the termination of the plaintiff’s appointment was done by the appropriate authority. It is accepted by both sides that by virtue of Decree No.12 of 1985, i.e. Federal Capital Territory (Delegation of Powers) Decree, the Minister of the Federal Capital Territory is an appropriate authority. It is also not in dispute that the plaintiff up till the time of his purported termination of appointment was a public officer: See section 4(1) of Decree 17 of 1984. In the defendant’s brief, the learned Senior Advocate, in his attack on the conclusions reached by the lower court that the Honourable Minister for the Federal Capital Territory did not approve the recommendation that the plaintiff’s appointment be terminated, said:-

“The Court below however, in appellant’s submission erred when it held that Public Officers (Special Provisions) Decree No. 17 of 1984 did not apply in this case because as the Honourable Justice held the Honourable Minister did not authorise the termination of the respondent’s employment.”

Learned Senior Advocate then referred to the lead judgment of Ogundare, J.C.A., where the learned Justice said:-

“It is quite obvious that of the recommendations (i), (ii), (iii), (iv) the Minister only approved recommendation (ii) the publication of the White Paper on the report. Recommendation (iv) seeking Minister’s approval for the termination of the appointment of the officers listed in paragraph (xi) of the White Paper was not approved.”

Learned Senior Advocate then further submitted that the Honourable Minister did not approve recommendation (ii) only. The crucial point in this appeal is whether by the approval of the White Paper the Honourable Minister has approved, whether by implication, the termination of the plaintiff’s appointment. This argument is based on the assumption that once the White Paper was approved, the termination of the respondent’s appointment which was a part of the White Paper was also approved. The learned Senior Advocate’s submission overlooks the contents of the minutes which read:

“Minister’

Pages 1 to 7 contain the recommendations and the Minister’s suggested views on the recommendation. The highlight of the recommendations are contained in paragraphs (ix), (x) and (xi) on pages 6 and 7 in which certain named officers have been recommended for commendation, lifting of suspension and termination of appointments respectively.

2. You will wish to approve:-

(i) the minister’s suggested views;

(ii) the publication of the White Paper on the report;

(iii) the suspension of the termination of the officers listed in paragraph (x) of the White Paper;

(iv) the termination of appointment of officers listed in paragraph (xi) of the White Paper.

(Sgd.)

A. M. Wazirin Fika,

Permanent Secretary,

17th December, 1985.

‘A’

The White Paper is approved,

(Sgd.)

17.12.85”

I am sure learned Senior Counsel will admit that four matters were sent to the Honourable Minister for his approval. I believe also that the Permanent Secretary who minuted to the Minister knew the implication hence he specifically asked for approval of four issues. The approval of the White Paper is different from minute (iv) which specifically asked for the Minister’s approval of:-

“the termination of appointment of officers listed in paragraph (xi) of the White Paper.”

The requirement of Decree No. 17 of 1984 in so far as approval is concerned is spelt out under S.4(2)(ii) which defines appropriate authority as “the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council”. A specific request requires a specific answer. Inference or analogy or answer by implication will not meet the requirement that the termination of the appointment (as in this case) must be by the appropriate authority.

Any statute ousting the jurisdiction of the Court must be construed strictly as clear words are required to oust the jurisdiction of a court more so when such act cannot be questioned in any court of law: Attorney-General of Lagos State v. Dosunmu (1989) 2 NSCC 545; (1989) 3 NWLR (Pt.111) 552; Anya v. Iyani (1993) 9 S.C.N.J. 53. It has not been shown not even by evidence before the Court that the power to terminate the respondent’s appointment was done by the appropriate authority. The approval given by the Hon. Minister was to publish the White Paper.

Learned counsel has argued further that the minutes by the Permanent Secretary was not challenged. It appears to me patent on the minutes that there was nothing to challenge because the only reasonable interpretation one can place on the clear and unambiguous minutes of the Honourable Minister was his approval for the publication of the White Paper. Furthermore learned Senior Advocate has failed to distinguish between a mandatory approval for termination of appointment of a public officer by the appropriate authority and inference of termination of appointment “traceable to the Minister’s approval”. Learned Senior Advocate has relied on section 10(2) of the Interpretation Act which reads:-

“An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”

I have no hesitation in saying that section 10(2) of the Interpretation Act Cap 192 is inapplicable. What did Exh. ’10’ say and where did it emanate from

Exhibit “10” is a letter of termination signed by one Shehu Dawaki for the Permanent Secretary, Federal Capital Development Authority. As said earlier in this judgment, the Hon. Minister of the Federal Capital Territory is the appropriate authority. Exhibit 10 was signed on behalf of the Permanent Secretary who under Decree No. 17 of 1984 is not the appropriate authority. Was there any evidence before the trial court to show that Exhibit 10 was signed by the appropriate authority or on the authority of the Honourable Minister The answer is in the negative. As was the case in Wilson v. Attorney-General of Bendel State & Ors. (1985) 1 NSCC 191; (1985) 1 NWLR (Pt.4) 572, any termination of appointment under Decree No. 17 of 1984 not done by the appropriate authority is therefore ineffectual. See also S.1(d) of Decree No. 12 of 1985. I have therefore come to the conclusion that the appointment of the respondent was not properly terminated. I will therefore grant the following reliefs 1, 3 and 4 which read:

“(1) Declaration that the letter reference No. FCDA/55/S.4/Vol.1/149 dated 31st December, 1985 and signed by Shehu Dawaki purporting to terminate the plaintiff’s appointment as Principal Architects with the defendant is illegal, null and void having been issued in disregard of rules of Natural Justice.

(2) Declaration that the purported termination of the plaintiff’s appointment by a Permanent Secretary Federal Capital Development Authority, Abuja vide letter reference No. FCDA.55/S.4/Vol.1/149 dated 31st of December, 1985 was not done or purported to be done under Decree No. 16 of 1984 or/and Decree No. 17 of 1984, therefore is null and void.

(4) Declaration that the plaintiff has been an Architect in the Building Department of the Federal Capital Development Authority Abuja since 3rd of August, 1978 and is still a Principal Architect in the Federal Capital Development Authority Abuja, and therefore entitled to rights, benefits and privileges (including) salaries attached to his office as Principal Architect in the Federal Capital Development Authority Abuja.”

The appeal fails and is hereby dismissed with costs assessed at N1,000.00 in favour of the plaintiff.

SC.284/1990