Frank E. A. Okoro V Delta Steel Company Ltd & Anor (1988)
LawGlobal-Hub Lead Judgment Report
NOOMA-EG 8A, J.C.A.
In the substantive suit filed by writ of summons the plaintiff, who is plaintiff/respondent to the motion now being considered on appeal claimed against the defendant, herein referred to as the defendant applicant, as follows:
“1. N100.000.00 (One hundred thousand naira) being damages for wrongful, unlawful and malicious dismissal of plaintiff on the 2nd day of March. 1984 as per defendants letter to the plaintiff on the same day at Ovwian-Aladja in Udu Clan within the jurisdiction of this Honourable Court. 2. A declaration that the purported dismissal of the plaintiff by the defendant is null and void.
3. An order of interim injunction restraining the defendants and their servants or agents or privies from quitting the plaintiff by force or by any other legal process from the house and premises at the Security Quarters of Delta Steel Township which plaintiff occupies as servant or tenant of the first defendant pending the determination of this suit. 4. An order of perpetual injunction to restrain their servants and agents and privies from quitting the plaintiff from the said house and premises occupied by plaintiff in the Security Quarters described under claim (3) above:”
Pleadings were settled, filed and delivered in the main suit. After the preliminary matters had been finally concluded, the defendant applicant filed a motion on notice under sections (1)(a)(d), 2(a)(b), 3( 1)(2)(3)(4) and (5) of the Public Officers (Special Provisions) Decree No). 17. 1984 of 31/12/83 and also under order 22(2)(3) Cap. 65 of the High Court (Civil Procedure) Rules, Laws of the Bendel State of Nigeria, 1976, praying the court below “for an order that the proceedings in this action are abated, discharged and made void because the action was instituted after the promulgation of the Public Officers (Special Provisions) Decree No. 17 of31/12/83, and for such further and any other orders as the Honourable Court may deem just to make in the circumstances.” The material paragraphs of the Better and Further affidavit sworn to in support of the application by an accredited representative of the defendant applicant read:
‘2. That the 1st defendant/applicant is a corporate body established under a Federal Law by the Federal Republic of Nigeria whose operative base is al Ovwian/Aladja and it is owned by the Federal Government of Nigeria.
5. That at all material time to the cause of this action, I was a public officer, the Manager (Personnel Administration) under the employment of the 1st defendant applicant, but at present, i am in the Estate Management sector in the Estate Services Division of the Delta Steel Company limited. 6. That pleadings have been exchanged in this action.
7. That the plaintiff/respondent, at all material time to the cause of this action was a Public Officer under the employment of the 1st defendant applicant and was working in the Security Department of the internal security control at the premises of the 1st defendant/applicant at Ovwian/Aladja.
8. That I have carefully read and understood the contents of the summons to this action filed on 3O/3/84, the statement of claim filed on 19/7/84 and the statement of defence of both defendants filed on 4/6/85 and especially paragraph (2) of the statement of defence.
9. That our solicitor, Chief J.G. Bukata, informed me and I verily believe him, that under the provisions of the Public Officers (Special Provisions) Decree No. 17 of 31/12/83 that the proceedings in this action are abated, discharged and are made void.
10. That the plaintiff/respondent- a public officer -an employee of the 1st defendant applicant was written a letter of dismissal by the 2nd defendant applicant acting for the Acting General Manager who is also a public officer as well as the appropriate authority.
11. That at all material time to the cause of this action the said Acting General Manager of the 1st defendant/applicant had the authority and power to make any appointment, to remove, suspend, dismiss, re-appoint or reinstate any person or public officer who was an employee of the 1st defendant applicant. 12. That the letter of dismissal of the plaintiff respondent reference No. APA/B220/271/84 dated 2/3/84 signed by the 2nd defendant applicant for the Acting General Manager is herein attached and is marked Exhibit A,
14. That as at 3/10/79 the public officer as well as the appropriate authority in charge of the 1st defendant/applicant was called the Project Coordinator and the 1st defendant applicant was known then as Delta Steel Complex. 15. That the plaintiff/respondent a Public Officer and an employee of the 1st defendant/applicant was dismissed by his employer on 2/3/84.
16. That the action by the plaintiff/respondent against the two defendants/appellants is for wrongful, unlawful and malicious dismissal as pleaded by him. 17. That the general conduct of the plaintiff respondent as a public officer in relation to the performance of his duties has been such that his further or continued employment by the 1st defendant applicant in the relevant service would not be in the public interest and hence he was dismissed or removed summarily. 18. That reasonably believe that proceedings in this action have been frustrated by the operation of law, and as such, further continuation of this action is a gross abuse of court process in this Honourable Court.’ In a counter-affidavit deposed to, opposing the motion, the plaintiff respondent swore: 2. That I am familiar and conversant with the facts of the case. 3. That the motion paper filed by the defendants on 10/10/86 together with the attached affidavit hive been served on me and I have read and understood same.
4 That paragraphs I, 2, 5, 6 and 10 of the defendant’/applicants’ affidavit are true. 5 That paragraph 4 of the laid affidavit is true only to the extent that the 2nd defendant was the Manager (Personal Administration) under the employment of the 1st defendant. 6. That paragraph 8 of the said affidavit is false and misleading. The fact is that I was not dismissed in accordance with the Public Office (Special Provisions) Decree No. 17 of 31/12/83. 7 That to support my assertion in Paragraph 6 above. I further stare as follows:-.
(a) That a letter from G.A.S. Longe (CFR), Secretary to the Federal Military Government reference No. SFMG.38/1 dated 7th February, 1984 spells out clearly the guidelines for the Removal or Retirement of officers from the Civil Service. The said letter and its annexures are hereto attached and marked Exhibit’A’ (b) That the aforementioned letter was forwarded to the Chief Executive of the 1st defendant/applicant via a letter reference Na.MMP,418/V.5/355 of 14th February, 1984 from the Ministry of Mines Power and Steel. The said letter is hereto annexed and marked as Exhibit ‘B” (c) That following the letter mentioned in paragraph 7 of counter affidavit the chief Executive of the 1st defendant/applicant in a letter ref. No. G/1000/38 of 16th February, 1984 set up two committees and I was a member of the committee. The said letter is hereto annexed and marked Exhibit “C” (d) That by another letter issued by the 1st defendant/applicant reference NO G/1000/38 of 1st March, 1984, I was made a member of the second committee known as the Evaluation Committee.
The said letter is hereto annexed and marked Exhibit ”D” (e) That the two aforementioned committees were to make comprehensive list of staff to be removed or retired from office u specified in Exhibit “A.’ 8. That I was dismissed from the service of the 1st defendant applicant on the 2nd day of March, 1984. 9. That I know as a fact that my name was not in any list sent to the Supervising Ministry of the 1st defendant/applicant as one of those to be removed or retired from office. 10.
That paragraph of the defendant & applicant affidavit is most untrue. The truth is that the satisfactory performance of my duties is evidenced by my appointment as member of the Collation and Evaluation Committees as shown in Exhibit “C “and ‘D.’
13. That paragraph 13 of the defendant/applicants affidavit is false as further continual of proceeding in this action is not in any way an abuse of the process of this Honourable Court.
14. That the application of the defendant/applicant was brought in bad faith.’ From the affidavit evidence, it is not in dispute that the defendant/applicant is a corporate body established under a Federal Law by the Federal Republic of Nigeria whose operative base is at Ovwian/Aladja and it is owned by the Federal Government of Nigeria. It was also admitted that the plaintiff/respondent was at all material time a public officer under the employment of the 1st defendant/applicant.
It was denied that the defendant/applicant had a solid defence to the plaintiff/respondents suit but for the provision of the said Decree and that the action is an abuse of court process. The plaintiff/respondent did refute the face deposed to by the defendant/applicant that under the provision of the Public Officers (Special Provisions) Decree No.17 of 31/12/83 that the proceedings in this action are ‘abated, discharged and are made void, although that aspect of the affidavit-evidence presumes argument of law.
That being the crux of the application the procedural departure from section 84 of the Evidence Act may be overlooked in preference for the substance. In a reserved Ruling, the learned trial Judge posed the following questions:
‘(1) Was Exhibit’ A’ (the letter of dismissal) issued by the appropriate authority? (2) Was (he respondents dismissal in accordance with Decree No. A 17 of 1984? (3) Does the interpretation law apply in view of section 3(2) of Decree No. 11 of 1984? (4) Having regard to the authority in Wilsons case is Decree No. 17 of 1984 applicable to the matter of dismissal of the respondent?’ He concluded: To each of the questions, my answer is in the affirmative.
Accordingly, this application succeeds and proceedings in Suit No. W/44/84 are hereby abated discharged and made void.” It is on record that the appellant (now plaintiff/respondent/appellant) had through counsel and with leave of court applied to amend ground of the appeal appended to the notice of appeal to read thus: ‘That the learned trial Judge erred in law and on facts when he held that Exhibit ‘A’ attached to the appellant/applicants motion (The plaintiff/respondent/appellant) was issued by the appropriate authority.’
The periphery is mine. It was indicated by learned counsel for the appellant that the particulars subjoined to the original ground of appeal No. 3 were still relevant to the amended ground of appeal aforementioned. Pursuant to the rules of court, the parties to this appeal filed and exchanged their respective briefs or argument. Both parties also formulated and set out the issues for determination. These, I think, are variants expressed in different words, of the real questions for decision in this appeal.
These, briefly, are: “(1) Was the letter of dismissal of the plaintiff/respondent/appellant, Exhibit A. issued by the appropriate authority within the contemplation of Decree No. 17? (2) Whether the learned trial Judge was right in holding that the plaintiff respondent/appellants action was caught by the provisions of Sections 1(a)(d), 2(a) and (b), 3(4) and (5) of the Public Officers (Special Provisions) Decree of 1984, hereinafter referred to as the Decree.’
The efficiency, industry and the recommendations of the plaintiff/respondent/appellant by the defendant/respondent to this appeal in regard to the issues aforementioned are relevant only to the application in the determination of the substantive suit, depending on the outcome of this interloctory application nor is the application of the Civil Service Regulation are, at this stage, applicable.
The submissions of counsel in that regard will, for the purpose of the matter under consideration be overlooked except in so far as they are relevant to the actual issues to be examined in the instant appeal It was conceded for the plaintiff/respondent/appellant that the 1st defendant/respondent company has general power to either dismiss or terminate the plaintiff/respondent/appellants employment, although that admission was qualified by learned counsel for the former that it can only do so upon reasonable grounds of any kind of gross misconduct.”
This aspect of the submission is, as aforesaid, pertinent in the consideration of the main suit and only in so far as it relates to the
Other Citation: (1988) LCN/2392(SC)