Francis Adesegun Vs Central Bank Of Nigeria (1991) LLJR-SC

Francis Adesegun Vs Central Bank Of Nigeria (1991)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C.

Decree No. 17 of 1984, that is, Public Officers (Special Provisions) Decree 1984, is revisited. The Decree enabled the appropriate authority at any time after 31st December, 1983 to dismiss or remove a public officer summarily from his office; or retire or require the public officer to compulsorily retire from the relevant public office. No civil proceedings could lie or be instituted in any court if the dismissal or removal or retirement was by the appropriate authority.

Amongst the issues for determination in this appeal is whether the plaintiff was removed pursuant to the Decree by the appropriate authority, that is, whether the Central Bank of Nigeria or its Board or Management was the appropriate authority in the circumstances of this case.

The plaintiff, Francis Adesegun Katto, was employed as a clerk on 8th April, 1968 by the defendant Bank, Central Bank of Nigeria. By 1st January, 1982, he had risen to the position of a Senior Manager on Grade Level 13 on a salary of N13,600 per annum at the time. On completion of fifteen years of service he was awarded a Certificate of Meritorious Service dated 28th December, 1983. About a year and half later, that is, on 1st June, 1984, he was served with a letter of termination of appointment for no apparent reason. When all representations to appropriate quarters to get him reinstated yielded no favourable result, he instituted an action, the subject matter of this appeal, claiming:

“(a) A Declaration that the Defendant’s purported termination of Plaintiff’s appointment on 1st June, 1984 by virtue of Defendant’s letter of that date was wrong in law, null and void and of no effect;

(b) Order on the Defendant to re-instate the Plaintiff to his former position in the defendant’s employment before the wrong (sic) termination with all necessary entitlements that would have accrued to him had he not be (sic) so wrongly terminated: OR

A declaration that Plaintiff is entitled to gratuity and pension according to the Defendant Staff Manual AND an Order to the Defendant to pay him his gratuities immediately and his pension to start to run at his 45 year anniversary;

(c) N200,000.00 (Two Hundred Thousand Naira) special and general damages for the wrongful termination of the Plaintiff’s appointment which claim include Plaintiff’s salary up to voluntary retirement age if Plaintiff is not re-instated; AND

(d) N100,000.00 (One Hundred thousand Naira) general (aggravated) damages for the defamation suffered by the Plaintiff as a result of the Defendant’s wrongful termination.”

It was the main defence of the Central Bank before the High Court of Justice, Niger State by way of oral submission by counsel, that the court had no jurisdiction to entertain the action because, according to it, the Public Officers (Special Provisions) Decree, No. 17 of 1984 empowered it to dismiss or remove its officers or employees, and that the Federal Military Government (Supremacy and Enforcement of Power), Decree 1984 and the Public Officers (Special Provisions) Decree No. 17 of 1981 ousted the jurisdiction of the Court.

In his judgment the learned trial judge, Umaru Agora, J., was of the view that since the defendant did not plead any specific Decree in its statement of defence which allegedly ousted his jurisdiction, counsel’s submission could not be a substitute for what was required by law to be pleaded. The learned trial Judge however went further to consider the effect of Decree No. 17 of 1984 which empowers “the appropriate authority” to dismiss or remove a public officer summarily from his office, and referred to Section 4(2) of the Decree which states that “in the operation of this Decree the appropriate authority – (i)-in respect of any office which was held for the purposes of any State, shall be the Military Governor of that State or any person authorized 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”.

The trial judge was of the view that it was only when the power to dismiss or remove under Section 1 (1) of the Decree has been exercised by an appropriate authority in conformity with Section 4(2) of the Decree that no civil proceedings could be instituted in any court. He pointed out that the Central Bank of Nigeria was neither a Military Governor nor the Head of the Federal Military Government. He also made the point that it was not shown that the Bank was authorised by the Head of the Federal Military Government or the Supreme Military Council (now the Armed Forces Ruling Council) to write and issue out Exhibit 8 terminating the plaintiff’s appointment. He referred to the fact that throughout the proceedings the defendant did not tender the Federal Military Government’s circular of 7th February, 1984 which it pleaded in paragraph 7 of the statement of defence that it would rely upon at the trial to prove that it had the authority to terminate the appointment or the plaintiff, The learned trial Judge therefore concluded that he had jurisdiction to hear and determine the suit.

In resolving the totality of the evidence adduced before him the learned trial Judge referred to the fact that no reason was given in Exhibit 8 for terminating the plaintiff’s appointment and that no allegation of misconduct against the plaintiff was pleaded in the statement of defence, He also found that no disciplinary committee, as opposed to an investigating panel, was set up as required by the Staff Manual of the Bank to deal with allegation of irregularities and misconduct against the plaintiff and that the termination of his appointment was not in accordance with Chapter 5 of the Staff Manual, Exhibit 7, which governed the appointment and termination of any staff of the Bank. He accordingly declared the termination of the plaintiff’s appointment null and void and of no effect.

The learned trial Judge was satisfied that the plaintiff was entitled to either reinstatement or to the payment of his gratuity immediately and his pension to start to run at his 45th year anniversary. He accordingly ordered that:

‘The defendant should reinstate the plaintiff to his former employment and be given all the entitlements that would have accrued to him as if his appointment had not been terminated i.e. to say promotions vis-a-vis his colleagues in the defendant’s employment, and all other necessary entitlements.”

He ordered in the alternative that the defendant should pay to the plaintiff his gratuity to an amount equal to his annual salary when he was 15 years in the defendant’s service and that the gratuity should be paid with immediate effect in accordance with Chapter 22 of Exhibit 7.

The plaintiff’s claim for the sum of N200,000.00 as special and general damages was rejected. In resolving the question of damages for defamation, the learned trial Judge inferred that Exhibit 8 the letter terminating the appointment of the plaintiff was published to the Manager, Account Office, Central Bank of Nigeria, Kaduna who was to pay the plaintiff one month’s salary in lieu of notice, and the Branch Controller to whom the plaintiff was to hand over all Bank’s Property in his possession.

He accepted the evidence that the general belief at the time the plaintiff was removed from office was that only corrupt and dishonest officials were dismissed or terminated and that the general inclination of the public was to look down on such officials and discredit them. For this and other reasons the sum of N70,000.00 was awarded the plaintiff as damages for defamation.

Against this decision the Bank appealed to the Court of Appeal on a number of grounds. The issues formulated in the appellant’s brief in the Court of Appeal as arising from the grounds of appeal for determination by that Court read:

“1. Whether the appellant can validly terminate the employment of its officer by complying with the requirement of Chapter 3 paragraph 2 of Exhibit 7 without regard for the requirement of any of the other provisions of Exhibit 7 including Chapter 5 clause 2.

2. Are the contents of Exhibit 8 defamatory of the respondent in their ordinary meaning
3. What meaning or meanings of the words complained of in Exhibit 8 make the words defamatory of the plaintiff
4. Is there any tort known to the law as defamation as a result of wrongful termination
5. Is there evidence of publication of Exhibit 8 sufficient to grand a case of libel
6. Is there any allegation of publication which is sufficient to ground a case of libel
7. Is the reference to the Branch Controller and the Manager, Account Office in Exhibit 8 adequate proof that Exhibit 8 was published to them
8. Did the plaintiff base his action on slander or libel
9. Were the actual words complained of in Exhibit 12 pleaded and what is the effect of failure to plead them
10. Is there proof of publication of Exhibit 12 by the defendant sufficient to ground a claim for libel
11. Is there any proof that the Manager of Bank of the Nonh, Minna received and/or read Exhibit 12
12. Is there any pleading to the effect that the Manager of Bank of the North, Minna received and/or read Exhibit 12 or a copy of it
13. Is the inference which the trial Judge drew that the Exhibit 12 was libellous correct in the light of the evidence before him and all the circumstances
14. Even if the action for damages lies, is the award of N70,000 not excessive in all the circumstances

Aikawa, JCA., in his judgment, concurred in by Ogundere and Achike, JJ.CA., raised suo motu the question whether the trial court had jurisdiction to entertain the suit in the light of Decree No, 17 of 1984, even though it was not an issue in the appeal. He was of the view that the trial Judge was misled in holding that he had jurisdiction to entertain the suit. The error was brought about, according to the learned Justice, by the objection of learned counsel for the plaintiff to the tendering in evidence of an extract of the minutes of the Bank’s Board Meeting. Because of the objection of counsel, which according to the learned Justice of the Court of Appeal was later withdrawn by counsel, the learned trial judge rejected the document. It was the view of Aikawa, JCA., that the document ought to have been received in evidence and that its rejection was “perverse”. It was therefore admitted in evidence by the Court of Appeal and marked Exhibit 16.

The Court of Appeal then proceeded to examine the Exhibit and noted that in the said Exhibit 16 another document which was pleaded in the defendant’s statement of defence as Federal Government circular was referred to therein. This document apparently provided the criteria for determining the officers whose appointment should be terminated. The learned Justice of the Court of Appeal drew attention to the portion of the circular which provides thus:

(a) “an officer should have been removed from the service as a result of disciplinary action which would have been concluded with despatch”, or

(b) “by reason of Age or ill-health or due to any other cause further or continued employment of an officer would least be in the public interest”.

The learned Justice of the Court of Appeal then concluded:

“In the circumstances I am of the opinion based on the foregoing observations that the appellant was properly authorized to act as the appropriate authority under section 4(2) (ii) of the said Decree. The appellant’s act of writing Exhibit 8 in terminating the appointment of the respondent falls within the protection provided by section 3(3) of the Decree (supra). Therefore, in effect, the trial court had no jurisdiction to entertain the respondent’s claim. This appeal is therefore allowed and the judgment of the lower court is hereby set aside. The costs of N400.00 are hereby awarded to the appellant.”

The plaintiff who was obviously dissatisfied with the judgment filed his notice of appeal consisting of four grounds. With the leave of this Court the defendant cross-appealed basing his complaint on two grounds. The two grounds read:

“I. The Court of Appeal erred in law in failing to consider the grounds of appeal which were put forward before it by Central Bank of Nigeria.

PARTICULARS

There were 7 grounds of appeal filed before the court of Appeal, none of which it considered.

2. The Court of Appeal erred in law in not calling upon parties to address it upon the issue of Jurisdiction which it raised suo motu ithout giving the parties an opportunity of addressing it upon the ssue before utilising the issue to determine the appeal.”

When the appeal came on for hearing on 14/10/91, the preliminary objection raised by the defendant’s counsel that ground one raised question of mixed law and fact and that no leave to file and argue the ground was upheld and the ground was therefore struck out. The second arm of the objection that “the particulars in ground two bear no relationship with the complaint in the ground” was also upheld and the particulars were accordingly struck out. Shorn of those particulars the said ground two however remains arguable. It reads:

“The learned Justice of Appeal erred in law when they held that the High Court of Minna, Niger State had no jurisdiction to entertain the plaintiff/respondent’s claim on the ground that Section 3 of the Decree No. 17 of 1984 ousted the jurisdiction of the court,”

In the plaintiff/appellant’s brief four issues were formulated for determination as arising from the four grounds of appeal. They read:

“7.1 Whether the court of Appeal has the Jurisdiction to set aside the decision of the learned trial Judge(refusing to admit in evidence an extract of the Central bank Board meeting marking same as €¢€¢ rejected”) and admit the said document into evidence as Exhibit 16 when there was no appeal on the rejection.

7.2 Whether the Court of Appeal was right in holding that the High Court of Niger State had no Jurisdiction to entertain the Plaintiff’s claims on the ground that section 3(3) of the Decrer No. 17 of 1984 ousted the jurisdiction of the Court, when there was no evidence that the Plaintiffs termination was by the Appropriate Authority.

7.3 Whether the Court of Appeal can take Judicial notice of a purported Federal Government Circular No. SF 38/1 dated 7th February, 1984 and found a Judgment on same when the said document was never produced by the Defendant at the trial.

7.4 Whether the Court of Appeal was not wrong when it allowed the appeal a relief the Defendant/Appellant did not ask for.”

Issue one relates to ground One which has been struck out.

The issues identified in the respondent’s brief are five.

They read:

“(1) Whether or not any or both of the grounds of appeal numbers 1 and 2 which have been filed by the appellant is or are valid for consideration under the law.

(2) Whether the Court of Appeal erred in law in admitting in evidence a document when same was rejected by the trial court because there was no appeal against the rejection.

(3) Whether Niger State High Court had jurisdiction to entertain plaintiffs claims on the ground that section 3 of Decree No. 17 of 1984 ousted the jurisdiction of the court on account of the matters specified in particulars to ground 2.

(4) Whether the Court of Appeal considered Federal Government Circular No. SF 38/1 dated 7/2/84 or the extract of it in exhibit 16 which it admitted and whether it acted properly in doing what it did because the document or the extract was not admitted in the trial court.

(5) Whether it is open to a respondent who was served with a notice of appeal which is defective in that it did not state the relief claimed, failed and neglected to raise an objection to the notice of appeal in limine and allows the appellant to file his brief of argument before coming on later in the proceedings to raise objection after he had been duly notified in regard to the reliefs claimed in the appellant’s brief of argument when no irreparable injury or loss had been caused to him thereby”.The appellant’s appeal will be resolved on the three remaining issues canvassed in the appellant’s brief but with an eye on the issues formulated in the respondent’s brief to serve as a guide.

The issue projected by the defendant/respondent in respect of its cross-appeal is “whether in the light of the facts and circumstances of the case judgment of the Court of Appeal ought to he disturbed”. This issue as framed, to my mind, does not correctly project the two grounds in the cross-appeal. It seems to me that the two issues arising from the two grounds are:

1. Whether the Court of Appeal was right in not considering and resolving any of or all the issues projected by the seven grounds of appeal filed by the defendant.
2. Whether it was proper for the Court of Appeal to raise suo motu an issue touching on the Jurisdiction of the trial court and resolving it without calling on the counsel for the parties to address it on it.

It is to be noted that the plaintiff/appellant filed no respondent’s brief in respect of the cross-appeal by the defendant/respondent. The appeal by the plaintiff will first be looked into. The first question arising for determination relates to issue No.2. It is whether the Court of Appeal was right in holding that the High Court of Niger State had no jurisdiction to entertain the plaintiff’s claim on the ground that section 3 (3) of the Decree No. 17 of 1984 ousted the jurisdiction of the court when there was no evidence that the plaintiff’s termination was by the appropriate authority. In answering this issue, it is to be assumed that the Court of Appeal was right in admitting in evidence an extract of the minutes of the Central Bank Board Meeting Exhibit 16. This is so because ground One, and therefore issue One, which raised the issue of the wrong admission of Exhibit 16 in evidence by the Court of Appeal has been struck out.

It must however be noted that ground 3, and therefore issue 3, rightly raised the question whether the Court of Appeal was competent to take judicial notice of an alleged Federal Government Circular No. SF 38/1 dated 7th February, 1984 and to base its judgment on it when the said circular was never produced by the defendant at the trial.

It seems to me convenient to take issues 2 and 3 together. In doing so it must also be borne in mind that the submissions of learned counsel for the plaintiff/appellant in respect of Issue No.2 based on the relevant particulars supplied in respect of ground 2 go to no issue. Therefore submissions touching on the fact that:

1. the question of Jurisdiction was not raised as a ground of appeal before the Court of Appeal;
2. the Court of Appeal has no supervisory Jurisdiction over the High Court; and
3. the learned Justices of Appeal failed to invite counsel to address them on a matter they raised suo motu.

Will not be considered when dealing with the appeal of the plaintiff.

It was the contention of learned counsel for the appellant, Mr. Akinyeye, a submission relevant to issues 2 and 3, that even granted that the appellant appealed to the Court of Appeal on Jurisdiction, which is not the case, the Court of Appeal was wrong to come to its decision that the High Court lacked Jurisdiction when it did not ascertain whether the removal of the plaintiff from office was by the appropriate authority. Learned counsel argued that Aikawa,JCA., over-looked the importance of the provision of section 2 (2) (ii) of Decree 17 of 1984 that “in the operation of this Decree, the appropriate authority ….. in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council.”

Learned counsel pointed out that the learned Justice of the Court of Appeal was more concerned with the reason for the removal of the appellant and not the authorization to remove him. The learned Justice of the Court of Appeal quoted an excerpt from Exhibit 16 relating to a circular which indicated the category of officers whose appointment could be terminated. Learned counsel submitted that the Court of Appeal had no material before it to have come to its decision that the trial court lacked jurisdiction. He made the point that the defendant pleaded at paragraph 7 of the Statement of Defence that the plaintiff’s appointment was terminated in compliance “with Decree promulgated by the Federal Military Government and Federal Government Circular issued and signed by the Secretary to the Federal Military Government dated 7th February, 1984” and that it “pleads and relies on the said circular at the trial of this suit”.

The said circular was not tendered at the trial in the High Court. Neither was it tendered in the Court of Appeal. According to learned counsel the purported admission in evidence of the circular by the Court of Appeal was speculative and imaginary. He argued that a Government Circular does not come within the purview of section 73 of the evidence Act as one of the documents the court could take judicial notice of.

It was however the submission of Mr. Aluko-Olokun, learned counsel for the defendant/respondent that there is no law which prohibits an appellate court from admitting a document which the trial court failed to admit if it considers that the rejection of same by the lower court was wrong. According to him the Court derives the power to do so from section 16 of the Court of Appeal Act and Order 1, Rule 2 of the Court of Appeal Rules. Learned counsel went on to submit:

“What the Court of Appeal admitted was a document which was rejected by the trial court. That document contained excerpts from the Federal Government Circular. In admitting the document all the contents it were-admitted including the extracts. The circular as a separate document was not before the trial court and the Court of Appeal. But surely the extracts were in evidence. Whether the extracts were properly used or not is a different matter which is not in issue in this appeal.”

I must say right away that I find it difficult to appreciate or understand the point being made by learned counsel that “whether the extracts were properly used or not is a different matter which is not in issue in this appeal.” Of course it is in issue. It is the contention of the appellant that the extract was wrongly received in evidence and improperly used. It was on the basis of the admission of the said extract of the alleged circular that the Court of Appeal seemingly came to the conclusion that the defendant was authorized to terminate the appointment of the plaintiff. I use the expression “seemingly” advisedly because Aikawa, JCA., did not specifically state that the authorization by the Head of the Federal Military Government was contained in the said circular.

Learned counsel for the respondent rightly in my view made no submission to suggest that there was evidence before the trial Court or the Court of Appeal that the termination of the appointment of the plaintiff/appellant was by any appropriate authority.

It is plain from section 4(2)(ii) and (iii) that the appropriate authority that could terminate the appointment of any officer was the Head of the Federal Military Government or any person authorised by him or the then Supreme Military Council. In respect of the State it was the Military Governor of the particular state or any person authorised by him that could remove an officer.

The important question to be resolved is whether the defendant advanced evidence to establish that the act of termination complained of was done by the appropriate authority. To put it in another way, does Exhibit 16 constitute evidence establishing that the act of termination complained of was by the appropriate authority.

Exhibit 16 is headed “Extract(s) from the 226th Meeting of the Board of Directors held on Thursday, 24th May, 1984”. It contains the fact that “management in consultation with the Board, (is) to pursue the purging of the Bank’s employees in line with the Federal Military Government’s guidelines without further delay.” It is recorded in Exhibit 16 that the meeting then proceeded to formulate criteria for the purging. The minutes went on to say:

“The above criteria were formulated in line with the Board’s guidelines as contained in the Government’s circular No. SF.38/1 dated 7th February, 1984, which states in part:

(a) “an officer should have been removed from the service as a result of disciplinary action which would have been concluded with despatch”, or

(b) “by reason of age or ill-health or due to any other cause further or continued employment of an officer would least be in the public interest.”

All that Exhibit 16 can be said to have established is that the Management of the Board purported to have acted in pursuance of a Government circular. It was not established before the trial Court and the Court of Appeal that there was in fact such a circular. The Court of Appeal did not claim to have knowledge of the circular as to take Judicial notice of it. No one testified on oath that there was in fact such a circular. Exhibit 16, the minutes of the Board’s meeting, is not an instrument or a subsidiary legislation issued or enacted pursuant to an enabling statute. The inference one can draw is that the Court of Appeal tended to hold the view that the defendant could not have terminated the appointment of the plaintiff if there was in fact no such circular authorizing it to do so.

In the administration of Justice, the courts have not the liberty to act on instinct. Cases are decided on proof by admissible and credible evidence and not on evidence not made available to the court. In effect decisions are not based on intuition that documentary evidence not placed before it must have existed. There is something in the submission of learned counsel for the plaintiff that the purponed admission of the circular by the Court of Appeal was “speculative and imaginary”.

Admittedly, intuitive perception, coming from the sub-conscious, often provides the right answer; but such answer not having been arrived at by the recognised Judicial process has no evidential value and serves no useful purpose. Having observed that Exhibit 16 made reference to a Federal Government Circular No. SF. 38/1 dated 7th February, 1984, the Court of Appeal, if it was so minded to be of assistance to the defendant, though to my mind such assistance would have been frowned at by this Court, ought to have ordered that the Circular be produced.

The trial Court rightly held that “throughout the proceedings of this action the defendant did not at any state tender the Federal Military Government Circular of 7th February. 1984, which he (sic) pleaded and averred he would rely on all the trial of this suit to prove that he (sic) had the authority to do so”. The Case of the defendant was not improved upon by the Court of Appeal admitting in evidence Exhibit 16 which was rejected by the trial Court. Exhibit 16 does not constitute evidence establishing that the act of termination complained of was done by the appropriate authority. The learned trial Judge was therefore right to hold that he had Jurisdiction to entertain the action.

It was in similar circumstance that Sowemimo. CJN., observed in Wilson v. Attorney General of Bendel State (1985) 1 NWLR (Pt.4) 572 (1985) 2 S.C. 191 at page 192 that :

“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 the instant case the letter of termination of appointment Exhibit 8 was signed by someone holding the post of Deputy Director of Personnel. There was nothing to suggest by way of evidence that he had the authority of the Head of the Federal Military Government to issue the letter. The termination of the appointment or the Plaintiff could not have been by virtue of the Public Officers (Special Provisions) Decree 1984.

It is the case for the appellant, going by the fourth issue that since the defendant in its notice of appeal to the Court of Appeal did not seek any specific relief, the Court of Appeal was wrong to have allowed the appeal. Order 3. Rule

2(1) of the court of Appeal Rules 1981 provides:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, shall State whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and SHALL State also the EXACT nature of the relief sought…”

In his notice of appeal to the Court of Appeal the defendant inserted erroneously in the column for the relief sought “such further relief or reliefs as this Honourable Court shall deem fit and proper to make in this circumstance.” Mr. Akinyeye submitted that by Order 3. Rule 2( 1) it is mandatory for an appellant to state the exact nature of the relief sought and argued that the purported relief prayed for the defendant was for a consequential order which did not entitle it to the relief granted by the Court of Appeal. In this regard he cited the case of Ekpenyong & Ors. Nyong & On. (1975) 2 SC. 71 at page 80 to the effect that the court is without the power to award to a claimant that which he did not claim. It was thus the case for the appellant that the appeal of the defendant to the Court of Appeal was incompetent since in essence no relief was sought.

It is true that by Order 3, Rule 2(1) an appellant “shall state also the exact nature of the relief sought”. The use of the word “shall” tends to give the impression that it is mandatory or imperative to specify the exact nature of the relief sought. Generally the term “shall” is a word of command and denote obligation and gives no room to discretion. It imposes a duty. The term is however sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where its being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory it carries the same meaning as the word “may”. As stated in the case of Liverpool Bank v. Turner (1860) 30 L.J., Ch. 379 to 381 (cited by Craies in his “Treatise of Statute Law” 4th Edition. page 233:

“No uinversal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.”

As mandatory Rules of Courts are not as sacrosanct as mandatory statutory provisions, Courts of Justice are more inclined to regard as directory or permissive any provision in Rules of Court which appears mandatory, if it is implicit in the provision in question or if combination of other provisions with the provision in question so dictates, or if the ends of Justice demand that it be so construed.

As stated by Oputa, JSC., in Oloha v. Akereja (1988) 3 NWLR (part 84) 508 at page 528, “all Rules of Court are made in aid of Justice. That being so, the interest of Justice will have to be given paramountcy over any Rule compliance with which, will lead to outright injustice.” It is implicit in Order 3, Rule 23 of the Court of Appeal Rules that the order the Court has power to make is not always dictated by the relief specifically sought by the appellant and that Order 3, Rule 2(1) is only directory in this wise. Order 3, Rule 23 reads:

“The Court shall have power to give any Judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

This Rule clearly shows that the case of Ekpenyong v. Nyong (supra) is inapplicable to the situation in this case. Rules of Court generally no doubt are to be complied with. Treating seemingly mandatory provision as directory or permissive will not necessarily amount to a breach of that provision. I find it difficult to accept the proposition that failure to specify the exact nature of the relief sought, will preclude the Court from granting the appellant the relief it thinks he is entitled to should his appeal succeed.

While it is desirable that the exact relief sought be stated in the notice of appeal so that the court may be guided in making its order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails. If I may confess, I hardly turn to the notice of appeal to verify the reliefs sought by an appellant before making an order following the success of his appeal. The order I make is that which appears to me to flow from the decision arrived at in the appeal.

Besides, as rightly observed by Mr. Aluko-Olokun, the defendant as appellant in the Court of Appeal subsequently prayed in his brief of argument that the appeal be allowed, the judgment of the trial court be set aside and that the plaintiffs claims be dismissed. See page 144 of the record of appeal. No preliminary objection was raised by the plaintiff against the reliefs contained in the appellant’s brief of argument nor was the notice of appeal attacked as incompetent on the basis that no valid relief was sought.

If there was any irregularity at all, it was waived by the plaintiff by taking steps in the appeal such as filing the respondent’s brief of argument. It is to be noted that the defendant who was the appellant in the Court of Appeal applied for leave to file and argue additional grounds of appeal and for extension of time within which to file its brief of argument, see pages 145 to 150 of the record of appeal. Learned counsel for the plaintiff did not oppose the application. See page 150A

of the record. The application was granted. By not opposing the application the plaintiff was saying in effect that the notice of appeal was valid.

The case of Saka Aluyeye v. Emmanuel Ashamu (1987) 1 NWLR (Pt.49) 267; (1987) I S.C.J.N. 82 at page 87 is relevant. There this Court (per Oputa. JSC) observed:

“I agree with Chief Williams that the plaintiffs (the present appellants) in the court below took steps which presupposed the existence of a valid appeal. When the present respondent as defendant/appellant in the court below filed a motion for stay of execution pending his appeal, the present appellants who were then plaintiffs/respondents filed a counter-affidavit opposing the motion, and took part in the arguments. During the appeal itself they, the respondents, filed a brief in answer to the defendant/appellant’s brief. I agree that all these steps taken by the plaintiffs are consistent with the existence of a valid appeal before the court of Appeal. It is too late now for the appellants in this Court after losing in the Court of Appeal to argue that there was no valid appeal. What were they fighting against in the court below”.

There is also the case of Jozebsan Industries & Ca. v. R. Lauwers Import-Export (1988) 3 NWLR (Pt.83) 429 at page 452 also reported in (1988) 7 S.C.J.N. 92 at page 112, where this Court per Agbaje, JSC, observed that “non compliance with rules of court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceeding by the party complaining about the breach of the rules of court he is said to have waived the breach. See Eboh v. Akpotu (1968) 1 All NLR 220”.

Even though the complaint relating to the fourth issue is untenable, the plaintiff’s appeal succeeds. It is allowed. The Judgment of the Court of Appeal holding that the trial court had no jurisdiction to entertain the plaintiffs claims is hereby set aside. Before making any consequential order or orders it is necessary to resolve the issues posed by the cross-appeal of the defendant.

I have earlier on in this Judgment identified two issues arising from the defendant’s cross-appeal. They relate to the failure of the Court of Appeal to resolve any of the issues arising from the seven grounds of appeal filed by the defendant before it and the question of that Court raising suo motu the issue of jurisdiction and resolving it without giving counsel a hearing. I have already held that the Court of Appeal fell into grave error and came to a wrong conclusion that the trial court had no jurisdiction. As a general rule an appellate court will not consider nor determine any question not in issue in the appeal. However by Order 3, Rule 2(6) the court in dealing with the appeal shall not be confined to the grounds set forth by the appellant “provided that the court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

It must be emphasized that the question of jurisdiction is that which the court can take suo motu and at any stage of the proceedings. See Oloriode v. Oyebi (1984) 5 SC. 1 at 32 to 33, (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 2 SC. 260 at 282. (1985) 1 NWLR (Pt.2) 195 and Oloba v. Akereja (1988) 3 NWLR (Part 84) 508 at 520. Jurisdiction is fundamental. It is the fiat, the stamp of authority to adjudicate. If it is not there the court labours in vain and all it does amounts to nothing, a nullity.

However in taking the question of Jurisdiction suo motu prudence and the principle of fair hearing demand that counsel be given opportunity to be heard on the issue before a decision is arrived at. This Court will however not set aside a correct decision that the trial court had no jurisdiction merely on the ground that counsel were not invited to address the trial court on it. In the instant case if the Court of Appeal had sought the views of counsel on the matter as it ought to have done, it probably would not have erred as it did.

Being of the opinion that the defendant was “properly authorised to act as the appropriate authority under Section 4(2)(ii) of the said Decree” and thus holding that the trial court had no Jurisdiction, the Court of Appeal did not consider it necessary to resolve any of the issues placed before it. In essence the appeal of the defendant was not determined.

As rightly submitted by Mr. Aluko-Olokun, the Court of Appeal ought to have proceeded in the alternative, on the basis that the trial court could have been right, to give its views and decision on the issues raised in the grounds of appeal. Where a trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate court of appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them. The position now is that issues which ought to have been resolved by the Court of Appeal in its Judgment dated 30th January, 1989, about three years ago, will now have to be sent back to it for hearing and determination.

The defendant’s appeal succeeds. It is accordingly allowed. The appeal of the defendant from the decision of the trial court is remitted to the Court of Appeal to be heard de novo. Since both parties have succeeded in their respective appeals there will be no order as to costs. Each party will thus bear his or its own costs.Decree No. 17 of 1984, that is, Public Officers (Special Provisions) Decree 1984, is revisited. The Decree enabled the appropriate authority at any time after 31st December, 1983 to dismiss or remove a public officer summarily from his office; or retire or require the public officer to compulsorily retire from the relevant public office. No civil proceedings could lie or be instituted in any court if the dismissal or removal or retirement was by the appropriate authority.

Amongst the issues for determination in this appeal is whether the plaintiff was removed pursuant to the Decree by the appropriate authority, that is, whether the Central Bank of Nigeria or its Board or Management was the appropriate authority in the circumstances of this case.

The plaintiff, Francis Adesegun Katto, was employed as a clerk on 8th April, 1968 by the defendant Bank, Central Bank of Nigeria. By 1st January, 1982, he had risen to the position of a Senior Manager on Grade Level 13 on a salary of N13,600 per annum at the time. On completion of fifteen years of service he was awarded a Certificate of Meritorious Service dated 28th December, 1983. About a year and half later, that is, on 1st June, 1984, he was served with a letter of termination of appointment for no apparent reason. When all representations to appropriate quarters to get him reinstated yielded no favourable result, he instituted an action, the subject matter of this appeal, claiming:

“(a) A Declaration that the Defendant’s purported termination of Plaintiff’s appointment on 1st June, 1984 by virtue of Defendant’s letter of that date was wrong in law, null and void and of no effect;

(b) Order on the Defendant to re-instate the Plaintiff to his former position in the defendant’s employment before the wrong (sic) termination with all necessary entitlements that would have accrued to him had he not be (sic) so wrongly terminated: OR

A declaration that Plaintiff is entitled to gratuity and pension according to the Defendant Staff Manual AND an Order to the Defendant to pay him his gratuities immediately and his pension to start to run at his 45 year anniversary;

(c) N200,000.00 (Two Hundred Thousand Naira) special and general damages for the wrongful termination of the Plaintiff’s appointment which claim include Plaintiff’s salary up to voluntary retirement age if Plaintiff is not re-instated; AND

(d) N100,000.00 (One Hundred thousand Naira) general (aggravated) damages for the defamation suffered by the Plaintiff as a result of the Defendant’s wrongful termination.”

It was the main defence of the Central Bank before the High Court of Justice, Niger State by way of oral submission by counsel, that the court had no jurisdiction to entertain the action because, according to it, the Public Officers (Special Provisions) Decree, No. 17 of 1984 empowered it to dismiss or remove its officers or employees, and that the Federal Military Government (Supremacy and Enforcement of Power), Decree 1984 and the Public Officers (Special Provisions) Decree No. 17 of 1981 ousted the jurisdiction of the Court.

In his judgment the learned trial judge, Umaru Agora, J., was of the view that since the defendant did not plead any specific Decree in its statement of defence which allegedly ousted his jurisdiction, counsel’s submission could not be a substitute for what was required by law to be pleaded. The learned trial Judge however went further to consider the effect of Decree No. 17 of 1984 which empowers “the appropriate authority” to dismiss or remove a public officer summarily from his office, and referred to Section 4(2) of the Decree which states that “in the operation of this Decree the appropriate authority – (i)-in respect of any office which was held for the purposes of any State, shall be the Military Governor of that State or any person authorized 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”.

The trial judge was of the view that it was only when the power to dismiss or remove under Section 1 (1) of the Decree has been exercised by an appropriate authority in conformity with Section 4(2) of the Decree that no civil proceedings could be instituted in any court. He pointed out that the Central Bank of Nigeria was neither a Military Governor nor the Head of the Federal Military Government. He also made the point that it was not shown that the Bank was authorised by the Head of the Federal Military Government or the Supreme Military Council (now the Armed Forces Ruling Council) to write and issue out Exhibit 8 terminating the plaintiff’s appointment. He referred to the fact that throughout the proceedings the defendant did not tender the Federal Military Government’s circular of 7th February, 1984 which it pleaded in paragraph 7 of the statement of defence that it would rely upon at the trial to prove that it had the authority to terminate the appointment or the plaintiff, The learned trial Judge therefore concluded that he had jurisdiction to hear and determine the suit.

In resolving the totality of the evidence adduced before him the learned trial Judge referred to the fact that no reason was given in Exhibit 8 for terminating the plaintiff’s appointment and that no allegation of misconduct against the plaintiff was pleaded in the statement of defence, He also found that no disciplinary committee, as opposed to an investigating panel, was set up as required by the Staff Manual of the Bank to deal with allegation of irregularities and misconduct against the plaintiff and that the termination of his appointment was not in accordance with Chapter 5 of the Staff Manual, Exhibit 7, which governed the appointment and termination of any staff of the Bank. He accordingly declared the termination of the plaintiff’s appointment null and void and of no effect.

The learned trial Judge was satisfied that the plaintiff was entitled to either reinstatement or to the payment of his gratuity immediately and his pension to start to run at his 45th year anniversary. He accordingly ordered that:

‘The defendant should reinstate the plaintiff to his former employment and be given all the entitlements that would have accrued to him as if his appointment had not been terminated i.e. to say promotions vis-a-vis his colleagues in the defendant’s employment, and all other necessary entitlements.”

He ordered in the alternative that the defendant should pay to the plaintiff his gratuity to an amount equal to his annual salary when he was 15 years in the defendant’s service and that the gratuity should be paid with immediate effect in accordance with Chapter 22 of Exhibit 7.

The plaintiff’s claim for the sum of N200,000.00 as special and general damages was rejected. In resolving the question of damages for defamation, the learned trial Judge inferred that Exhibit 8 the letter terminating the appointment of the plaintiff was published to the Manager, Account Office, Central Bank of Nigeria, Kaduna who was to pay the plaintiff one month’s salary in lieu of notice, and the Branch Controller to whom the plaintiff was to hand over all Bank’s Property in his possession.

He accepted the evidence that the general belief at the time the plaintiff was removed from office was that only corrupt and dishonest officials were dismissed or terminated and that the general inclination of the public was to look down on such officials and discredit them. For this and other reasons the sum of N70,000.00 was awarded the plaintiff as damages for defamation.

Against this decision the Bank appealed to the Court of Appeal on a number of grounds. The issues formulated in the appellant’s brief in the Court of Appeal as arising from the grounds of appeal for determination by that Court read:

“1. Whether the appellant can validly terminate the employment of its officer by complying with the requirement of Chapter 3 paragraph 2 of Exhibit 7 without regard for the requirement of any of the other provisions of Exhibit 7 including Chapter 5 clause 2.

2. Are the contents of Exhibit 8 defamatory of the respondent in their ordinary meaning
3. What meaning or meanings of the words complained of in Exhibit 8 make the words defamatory of the plaintiff
4. Is there any tort known to the law as defamation as a result of wrongful termination
5. Is there evidence of publication of Exhibit 8 sufficient to grand a case of libel
6. Is there any allegation of publication which is sufficient to ground a case of libel
7. Is the reference to the Branch Controller and the Manager, Account Office in Exhibit 8 adequate proof that Exhibit 8 was published to them
8. Did the plaintiff base his action on slander or libel
9. Were the actual words complained of in Exhibit 12 pleaded and what is the effect of failure to plead them
10. Is there proof of publication of Exhibit 12 by the defendant sufficient to ground a claim for libel
11. Is there any proof that the Manager of Bank of the Nonh, Minna received and/or read Exhibit 12
12. Is there any pleading to the effect that the Manager of Bank of the North, Minna received and/or read Exhibit 12 or a copy of it
13. Is the inference which the trial Judge drew that the Exhibit 12 was libellous correct in the light of the evidence before him and all the circumstances
14. Even if the action for damages lies, is the award of N70,000 not excessive in all the circumstances

Aikawa, JCA., in his judgment, concurred in by Ogundere and Achike, JJ.CA., raised suo motu the question whether the trial court had jurisdiction to entertain the suit in the light of Decree No, 17 of 1984, even though it was not an issue in the appeal. He was of the view that the trial Judge was misled in holding that he had jurisdiction to entertain the suit. The error was brought about, according to the learned Justice, by the objection of learned counsel for the plaintiff to the tendering in evidence of an extract of the minutes of the Bank’s Board Meeting. Because of the objection of counsel, which according to the learned Justice of the Court of Appeal was later withdrawn by counsel, the learned trial judge rejected the document. It was the view of Aikawa, JCA., that the document ought to have been received in evidence and that its rejection was “perverse”. It was therefore admitted in evidence by the Court of Appeal and marked Exhibit 16.

The Court of Appeal then proceeded to examine the Exhibit and noted that in the said Exhibit 16 another document which was pleaded in the defendant’s statement of defence as Federal Government circular was referred to therein. This document apparently provided the criteria for determining the officers whose appointment should be terminated. The learned Justice of the Court of Appeal drew attention to the portion of the circular which provides thus:

(a) “an officer should have been removed from the service as a result of disciplinary action which would have been concluded with despatch”, or

(b) “by reason of Age or ill-health or due to any other cause further or continued employment of an officer would least be in the public interest”.

The learned Justice of the Court of Appeal then concluded:

“In the circumstances I am of the opinion based on the foregoing observations that the appellant was properly authorized to act as the appropriate authority under section 4(2) (ii) of the said Decree. The appellant’s act of writing Exhibit 8 in terminating the appointment of the respondent falls within the protection provided by section 3(3) of the Decree (supra). Therefore, in effect, the trial court had no jurisdiction to entertain the respondent’s claim. This appeal is therefore allowed and the judgment of the lower court is hereby set aside. The costs of N400.00 are hereby awarded to the appellant.”

The plaintiff who was obviously dissatisfied with the judgment filed his notice of appeal consisting of four grounds. With the leave of this Court the defendant cross-appealed basing his complaint on two grounds. The two grounds read:

“I. The Court of Appeal erred in law in failing to consider the grounds of appeal which were put forward before it by Central Bank of Nigeria.

PARTICULARS

There were 7 grounds of appeal filed before the court of Appeal, none of which it considered.

2. The Court of Appeal erred in law in not calling upon parties to address it upon the issue of Jurisdiction which it raised suo motu ithout giving the parties an opportunity of addressing it upon the ssue before utilising the issue to determine the appeal.”

When the appeal came on for hearing on 14/10/91, the preliminary objection raised by the defendant’s counsel that ground one raised question of mixed law and fact and that no leave to file and argue the ground was upheld and the ground was therefore struck out. The second arm of the objection that “the particulars in ground two bear no relationship with the complaint in the ground” was also upheld and the particulars were accordingly struck out. Shorn of those particulars the said ground two however remains arguable. It reads:

“The learned Justice of Appeal erred in law when they held that the High Court of Minna, Niger State had no jurisdiction to entertain the plaintiff/respondent’s claim on the ground that Section 3 of the Decree No. 17 of 1984 ousted the jurisdiction of the court,”

In the plaintiff/appellant’s brief four issues were formulated for determination as arising from the four grounds of appeal. They read:

“7.1 Whether the court of Appeal has the Jurisdiction to set aside the decision of the learned trial Judge(refusing to admit in evidence an extract of the Central bank Board meeting marking same as €¢€¢ rejected”) and admit the said document into evidence as Exhibit 16 when there was no appeal on the rejection.

7.2 Whether the Court of Appeal was right in holding that the High Court of Niger State had no Jurisdiction to entertain the Plaintiff’s claims on the ground that section 3(3) of the Decrer No. 17 of 1984 ousted the jurisdiction of the Court, when there was no evidence that the Plaintiffs termination was by the Appropriate Authority.

7.3 Whether the Court of Appeal can take Judicial notice of a purported Federal Government Circular No. SF 38/1 dated 7th February, 1984 and found a Judgment on same when the said document was never produced by the Defendant at the trial.

7.4 Whether the Court of Appeal was not wrong when it allowed the appeal a relief the Defendant/Appellant did not ask for.”

Issue one relates to ground One which has been struck out.

The issues identified in the respondent’s brief are five.

They read:

“(1) Whether or not any or both of the grounds of appeal numbers 1 and 2 which have been filed by the appellant is or are valid for consideration under the law.

(2) Whether the Court of Appeal erred in law in admitting in evidence a document when same was rejected by the trial court because there was no appeal against the rejection.

(3) Whether Niger State High Court had jurisdiction to entertain plaintiffs claims on the ground that section 3 of Decree No. 17 of 1984 ousted the jurisdiction of the court on account of the matters specified in particulars to ground 2.

(4) Whether the Court of Appeal considered Federal Government Circular No. SF 38/1 dated 7/2/84 or the extract of it in exhibit 16 which it admitted and whether it acted properly in doing what it did because the document or the extract was not admitted in the trial court.

(5) Whether it is open to a respondent who was served with a notice of appeal which is defective in that it did not state the relief claimed, failed and neglected to raise an objection to the notice of appeal in limine and allows the appellant to file his brief of argument before coming on later in the proceedings to raise objection after he had been duly notified in regard to the reliefs claimed in the appellant’s brief of argument when no irreparable injury or loss had been caused to him thereby”.The appellant’s appeal will be resolved on the three remaining issues canvassed in the appellant’s brief but with an eye on the issues formulated in the respondent’s brief to serve as a guide.

The issue projected by the defendant/respondent in respect of its cross-appeal is “whether in the light of the facts and circumstances of the case judgment of the Court of Appeal ought to he disturbed”. This issue as framed, to my mind, does not correctly project the two grounds in the cross-appeal. It seems to me that the two issues arising from the two grounds are:

1. Whether the Court of Appeal was right in not considering and resolving any of or all the issues projected by the seven grounds of appeal filed by the defendant.
2. Whether it was proper for the Court of Appeal to raise suo motu an issue touching on the Jurisdiction of the trial court and resolving it without calling on the counsel for the parties to address it on it.

It is to be noted that the plaintiff/appellant filed no respondent’s brief in respect of the cross-appeal by the defendant/respondent. The appeal by the plaintiff will first be looked into. The first question arising for determination relates to issue No.2. It is whether the Court of Appeal was right in holding that the High Court of Niger State had no jurisdiction to entertain the plaintiff’s claim on the ground that section 3 (3) of the Decree No. 17 of 1984 ousted the jurisdiction of the court when there was no evidence that the plaintiff’s termination was by the appropriate authority. In answering this issue, it is to be assumed that the Court of Appeal was right in admitting in evidence an extract of the minutes of the Central Bank Board Meeting Exhibit 16. This is so because ground One, and therefore issue One, which raised the issue of the wrong admission of Exhibit 16 in evidence by the Court of Appeal has been struck out.

It must however be noted that ground 3, and therefore issue 3, rightly raised the question whether the Court of Appeal was competent to take judicial notice of an alleged Federal Government Circular No. SF 38/1 dated 7th February, 1984 and to base its judgment on it when the said circular was never produced by the defendant at the trial.

It seems to me convenient to take issues 2 and 3 together. In doing so it must also be borne in mind that the submissions of learned counsel for the plaintiff/appellant in respect of Issue No.2 based on the relevant particulars supplied in respect of ground 2 go to no issue. Therefore submissions touching on the fact that:

1. the question of Jurisdiction was not raised as a ground of appeal before the Court of Appeal;
2. the Court of Appeal has no supervisory Jurisdiction over the High Court; and
3. the learned Justices of Appeal failed to invite counsel to address them on a matter they raised suo motu.

Will not be considered when dealing with the appeal of the plaintiff.

It was the contention of learned counsel for the appellant, Mr. Akinyeye, a submission relevant to issues 2 and 3, that even granted that the appellant appealed to the Court of Appeal on Jurisdiction, which is not the case, the Court of Appeal was wrong to come to its decision that the High Court lacked Jurisdiction when it did not ascertain whether the removal of the plaintiff from office was by the appropriate authority. Learned counsel argued that Aikawa,JCA., over-looked the importance of the provision of section 2 (2) (ii) of Decree 17 of 1984 that “in the operation of this Decree, the appropriate authority ….. in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Supreme Military Council.”

Learned counsel pointed out that the learned Justice of the Court of Appeal was more concerned with the reason for the removal of the appellant and not the authorization to remove him. The learned Justice of the Court of Appeal quoted an excerpt from Exhibit 16 relating to a circular which indicated the category of officers whose appointment could be terminated. Learned counsel submitted that the Court of Appeal had no material before it to have come to its decision that the trial court lacked jurisdiction. He made the point that the defendant pleaded at paragraph 7 of the Statement of Defence that the plaintiff’s appointment was terminated in compliance “with Decree promulgated by the Federal Military Government and Federal Government Circular issued and signed by the Secretary to the Federal Military Government dated 7th February, 1984” and that it “pleads and relies on the said circular at the trial of this suit”.

The said circular was not tendered at the trial in the High Court. Neither was it tendered in the Court of Appeal. According to learned counsel the purported admission in evidence of the circular by the Court of Appeal was speculative and imaginary. He argued that a Government Circular does not come within the purview of section 73 of the evidence Act as one of the documents the court could take judicial notice of.

It was however the submission of Mr. Aluko-Olokun, learned counsel for the defendant/respondent that there is no law which prohibits an appellate court from admitting a document which the trial court failed to admit if it considers that the rejection of same by the lower court was wrong. According to him the Court derives the power to do so from section 16 of the Court of Appeal Act and Order 1, Rule 2 of the Court of Appeal Rules. Learned counsel went on to submit:

“What the Court of Appeal admitted was a document which was rejected by the trial court. That document contained excerpts from the Federal Government Circular. In admitting the document all the contents it were-admitted including the extracts. The circular as a separate document was not before the trial court and the Court of Appeal. But surely the extracts were in evidence. Whether the extracts were properly used or not is a different matter which is not in issue in this appeal.”

I must say right away that I find it difficult to appreciate or understand the point being made by learned counsel that “whether the extracts were properly used or not is a different matter which is not in issue in this appeal.” Of course it is in issue. It is the contention of the appellant that the extract was wrongly received in evidence and improperly used. It was on the basis of the admission of the said extract of the alleged circular that the Court of Appeal seemingly came to the conclusion that the defendant was authorized to terminate the appointment of the plaintiff. I use the expression “seemingly” advisedly because Aikawa, JCA., did not specifically state that the authorization by the Head of the Federal Military Government was contained in the said circular.

Learned counsel for the respondent rightly in my view made no submission to suggest that there was evidence before the trial Court or the Court of Appeal that the termination of the appointment of the plaintiff/appellant was by any appropriate authority.

It is plain from section 4(2)(ii) and (iii) that the appropriate authority that could terminate the appointment of any officer was the Head of the Federal Military Government or any person authorised by him or the then Supreme Military Council. In respect of the State it was the Military Governor of the particular state or any person authorised by him that could remove an officer.

The important question to be resolved is whether the defendant advanced evidence to establish that the act of termination complained of was done by the appropriate authority. To put it in another way, does Exhibit 16 constitute evidence establishing that the act of termination complained of was by the appropriate authority.

Exhibit 16 is headed “Extract(s) from the 226th Meeting of the Board of Directors held on Thursday, 24th May, 1984”. It contains the fact that “management in consultation with the Board, (is) to pursue the purging of the Bank’s employees in line with the Federal Military Government’s guidelines without further delay.” It is recorded in Exhibit 16 that the meeting then proceeded to formulate criteria for the purging. The minutes went on to say:

“The above criteria were formulated in line with the Board’s guidelines as contained in the Government’s circular No. SF.38/1 dated 7th February, 1984, which states in part:

(a) “an officer should have been removed from the service as a result of disciplinary action which would have been concluded with despatch”, or

(b) “by reason of age or ill-health or due to any other cause further or continued employment of an officer would least be in the public interest.”

All that Exhibit 16 can be said to have established is that the Management of the Board purported to have acted in pursuance of a Government circular. It was not established before the trial Court and the Court of Appeal that there was in fact such a circular. The Court of Appeal did not claim to have knowledge of the circular as to take Judicial notice of it. No one testified on oath that there was in fact such a circular. Exhibit 16, the minutes of the Board’s meeting, is not an instrument or a subsidiary legislation issued or enacted pursuant to an enabling statute. The inference one can draw is that the Court of Appeal tended to hold the view that the defendant could not have terminated the appointment of the plaintiff if there was in fact no such circular authorizing it to do so.

In the administration of Justice, the courts have not the liberty to act on instinct. Cases are decided on proof by admissible and credible evidence and not on evidence not made available to the court. In effect decisions are not based on intuition that documentary evidence not placed before it must have existed. There is something in the submission of learned counsel for the plaintiff that the purponed admission of the circular by the Court of Appeal was “speculative and imaginary”.

Admittedly, intuitive perception, coming from the sub-conscious, often provides the right answer; but such answer not having been arrived at by the recognised Judicial process has no evidential value and serves no useful purpose. Having observed that Exhibit 16 made reference to a Federal Government Circular No. SF. 38/1 dated 7th February, 1984, the Court of Appeal, if it was so minded to be of assistance to the defendant, though to my mind such assistance would have been frowned at by this Court, ought to have ordered that the Circular be produced.

The trial Court rightly held that “throughout the proceedings of this action the defendant did not at any state tender the Federal Military Government Circular of 7th February. 1984, which he (sic) pleaded and averred he would rely on all the trial of this suit to prove that he (sic) had the authority to do so”. The Case of the defendant was not improved upon by the Court of Appeal admitting in evidence Exhibit 16 which was rejected by the trial Court. Exhibit 16 does not constitute evidence establishing that the act of termination complained of was done by the appropriate authority. The learned trial Judge was therefore right to hold that he had Jurisdiction to entertain the action.

It was in similar circumstance that Sowemimo. CJN., observed in Wilson v. Attorney General of Bendel State (1985) 1 NWLR (Pt.4) 572 (1985) 2 S.C. 191 at page 192 that :

“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 the instant case the letter of termination of appointment Exhibit 8 was signed by someone holding the post of Deputy Director of Personnel. There was nothing to suggest by way of evidence that he had the authority of the Head of the Federal Military Government to issue the letter. The termination of the appointment or the Plaintiff could not have been by virtue of the Public Officers (Special Provisions) Decree 1984.

It is the case for the appellant, going by the fourth issue that since the defendant in its notice of appeal to the Court of Appeal did not seek any specific relief, the Court of Appeal was wrong to have allowed the appeal. Order 3. Rule

2(1) of the court of Appeal Rules 1981 provides:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, shall State whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and SHALL State also the EXACT nature of the relief sought…”

In his notice of appeal to the Court of Appeal the defendant inserted erroneously in the column for the relief sought “such further relief or reliefs as this Honourable Court shall deem fit and proper to make in this circumstance.” Mr. Akinyeye submitted that by Order 3. Rule 2( 1) it is mandatory for an appellant to state the exact nature of the relief sought and argued that the purported relief prayed for the defendant was for a consequential order which did not entitle it to the relief granted by the Court of Appeal. In this regard he cited the case of Ekpenyong & Ors. Nyong & On. (1975) 2 SC. 71 at page 80 to the effect that the court is without the power to award to a claimant that which he did not claim. It was thus the case for the appellant that the appeal of the defendant to the Court of Appeal was incompetent since in essence no relief was sought.

It is true that by Order 3, Rule 2(1) an appellant “shall state also the exact nature of the relief sought”. The use of the word “shall” tends to give the impression that it is mandatory or imperative to specify the exact nature of the relief sought. Generally the term “shall” is a word of command and denote obligation and gives no room to discretion. It imposes a duty. The term is however sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where its being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory it carries the same meaning as the word “may”. As stated in the case of Liverpool Bank v. Turner (1860) 30 L.J., Ch. 379 to 381 (cited by Craies in his “Treatise of Statute Law” 4th Edition. page 233:

“No uinversal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.”

As mandatory Rules of Courts are not as sacrosanct as mandatory statutory provisions, Courts of Justice are more inclined to regard as directory or permissive any provision in Rules of Court which appears mandatory, if it is implicit in the provision in question or if combination of other provisions with the provision in question so dictates, or if the ends of Justice demand that it be so construed.

As stated by Oputa, JSC., in Oloha v. Akereja (1988) 3 NWLR (part 84) 508 at page 528, “all Rules of Court are made in aid of Justice. That being so, the interest of Justice will have to be given paramountcy over any Rule compliance with which, will lead to outright injustice.” It is implicit in Order 3, Rule 23 of the Court of Appeal Rules that the order the Court has power to make is not always dictated by the relief specifically sought by the appellant and that Order 3, Rule 2(1) is only directory in this wise. Order 3, Rule 23 reads:

“The Court shall have power to give any Judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

This Rule clearly shows that the case of Ekpenyong v. Nyong (supra) is inapplicable to the situation in this case. Rules of Court generally no doubt are to be complied with. Treating seemingly mandatory provision as directory or permissive will not necessarily amount to a breach of that provision. I find it difficult to accept the proposition that failure to specify the exact nature of the relief sought, will preclude the Court from granting the appellant the relief it thinks he is entitled to should his appeal succeed.

While it is desirable that the exact relief sought be stated in the notice of appeal so that the court may be guided in making its order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails. If I may confess, I hardly turn to the notice of appeal to verify the reliefs sought by an appellant before making an order following the success of his appeal. The order I make is that which appears to me to flow from the decision arrived at in the appeal.

Besides, as rightly observed by Mr. Aluko-Olokun, the defendant as appellant in the Court of Appeal subsequently prayed in his brief of argument that the appeal be allowed, the judgment of the trial court be set aside and that the plaintiffs claims be dismissed. See page 144 of the record of appeal. No preliminary objection was raised by the plaintiff against the reliefs contained in the appellant’s brief of argument nor was the notice of appeal attacked as incompetent on the basis that no valid relief was sought.

If there was any irregularity at all, it was waived by the plaintiff by taking steps in the appeal such as filing the respondent’s brief of argument. It is to be noted that the defendant who was the appellant in the Court of Appeal applied for leave to file and argue additional grounds of appeal and for extension of time within which to file its brief of argument, see pages 145 to 150 of the record of appeal. Learned counsel for the plaintiff did not oppose the application. See page 150A

of the record. The application was granted. By not opposing the application the plaintiff was saying in effect that the notice of appeal was valid.

The case of Saka Aluyeye v. Emmanuel Ashamu (1987) 1 NWLR (Pt.49) 267; (1987) I S.C.J.N. 82 at page 87 is relevant. There this Court (per Oputa. JSC) observed:

“I agree with Chief Williams that the plaintiffs (the present appellants) in the court below took steps which presupposed the existence of a valid appeal. When the present respondent as defendant/appellant in the court below filed a motion for stay of execution pending his appeal, the present appellants who were then plaintiffs/respondents filed a counter-affidavit opposing the motion, and took part in the arguments. During the appeal itself they, the respondents, filed a brief in answer to the defendant/appellant’s brief. I agree that all these steps taken by the plaintiffs are consistent with the existence of a valid appeal before the court of Appeal. It is too late now for the appellants in this Court after losing in the Court of Appeal to argue that there was no valid appeal. What were they fighting against in the court below”.

There is also the case of Jozebsan Industries & Ca. v. R. Lauwers Import-Export (1988) 3 NWLR (Pt.83) 429 at page 452 also reported in (1988) 7 S.C.J.N. 92 at page 112, where this Court per Agbaje, JSC, observed that “non compliance with rules of court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceeding by the party complaining about the breach of the rules of court he is said to have waived the breach. See Eboh v. Akpotu (1968) 1 All NLR 220”.

Even though the complaint relating to the fourth issue is untenable, the plaintiff’s appeal succeeds. It is allowed. The Judgment of the Court of Appeal holding that the trial court had no jurisdiction to entertain the plaintiffs claims is hereby set aside. Before making any consequential order or orders it is necessary to resolve the issues posed by the cross-appeal of the defendant.

I have earlier on in this Judgment identified two issues arising from the defendant’s cross-appeal. They relate to the failure of the Court of Appeal to resolve any of the issues arising from the seven grounds of appeal filed by the defendant before it and the question of that Court raising suo motu the issue of jurisdiction and resolving it without giving counsel a hearing. I have already held that the Court of Appeal fell into grave error and came to a wrong conclusion that the trial court had no jurisdiction. As a general rule an appellate court will not consider nor determine any question not in issue in the appeal. However by Order 3, Rule 2(6) the court in dealing with the appeal shall not be confined to the grounds set forth by the appellant “provided that the court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

It must be emphasized that the question of jurisdiction is that which the court can take suo motu and at any stage of the proceedings. See Oloriode v. Oyebi (1984) 5 SC. 1 at 32 to 33, (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 2 SC. 260 at 282. (1985) 1 NWLR (Pt.2) 195 and Oloba v. Akereja (1988) 3 NWLR (Part 84) 508 at 520. Jurisdiction is fundamental. It is the fiat, the stamp of authority to adjudicate. If it is not there the court labours in vain and all it does amounts to nothing, a nullity.

However in taking the question of Jurisdiction suo motu prudence and the principle of fair hearing demand that counsel be given opportunity to be heard on the issue before a decision is arrived at. This Court will however not set aside a correct decision that the trial court had no jurisdiction merely on the ground that counsel were not invited to address the trial court on it. In the instant case if the Court of Appeal had sought the views of counsel on the matter as it ought to have done, it probably would not have erred as it did.

Being of the opinion that the defendant was “properly authorised to act as the appropriate authority under Section 4(2)(ii) of the said Decree” and thus holding that the trial court had no Jurisdiction, the Court of Appeal did not consider it necessary to resolve any of the issues placed before it. In essence the appeal of the defendant was not determined.

As rightly submitted by Mr. Aluko-Olokun, the Court of Appeal ought to have proceeded in the alternative, on the basis that the trial court could have been right, to give its views and decision on the issues raised in the grounds of appeal. Where a trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate court of appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them. The position now is that issues which ought to have been resolved by the Court of Appeal in its Judgment dated 30th January, 1989, about three years ago, will now have to be sent back to it for hearing and determination.

The defendant’s appeal succeeds. It is accordingly allowed. The appeal of the defendant from the decision of the trial court is remitted to the Court of Appeal to be heard de novo. Since both parties have succeeded in their respective appeals there will be no order as to costs. Each party will thus bear his or its own costs.

Other Citation: (1991) LCN/2452(SC)