Local Government Service Commission & Ors. V. Ezekiel Oluwole Bamidele Dada (1997)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

As plaintiff in the lower Court the respondent instituted an action against the appellant/defendant claiming the following reliefs:-

1. A declaration that the termination of the plaintiff’s appointment through a letter dated 26th November, 1987 signed by Alhaji M.O. Ashiru, the Executive Secretary to the first defendant, is null and void and of no effect whatsoever as it is contrary to the rules of Natural Justice and the provision of section 33 of the 1979 Constitution of the Federal Republic of Nigeria, and Staff Regulations 39F (iii) of the Local Government Staff Regulations Cap 63 Vol. IV of the Laws of Ogun State. 1978.
2. An order reinstating the plaintiff into the Local Government Service of Ogun State without any loss of benefit and/or salary.
3. In the alternative, an order by the court that the 1st defendant should pay to the plaintiff the following:-

(a) the sum of N287,469 as salary for 13 and half years at N21,294.00 per annum until year 2001 when the plaintiff will reach the retiring age of 60 years.

(b) The sum of N40,458.00 being gratuity for 28 years of service up to and including the year 2001 when the plaintiff will become 60 years old.

(c) The payment of Annual Pension of N20,221 from December, 1987.

(d) The sum of N10,221.12 as arrears of monthly pension for one year from December, 1987 to November, 1988.

(e) The sum of N50,000.00 as general damages for wrongful termination of the plaintiff’s appointment.

(f) The cost of this suit.

The case of the plaintiff as is averred in the statement of claim is that he rose to the grade of Administrative Officer Grade I in the employment of the 1st defendant, and has never received any query throughout his career in the Civil Service which spanned from 1/6/73, until 1987 when he received a letter from the 1st defendant reprimanding him for poor leadership role. Even though the decision to reprimand the plaintiff was based on a report of a panel set up to investigate an alleged uncooperative and inordinate behaviour of one Dr. Egunjobi, the report was not made available to the plaintiff to defend himself, and he was not queried on the said report before he was reprimanded. After the letter of reprimand the plaintiff’s appointment was terminated without being given a fair hearing.

In their defence the defendants averred that by virtue of being the Chief Executive of the state the Military Governor of Ogun State has overall control and authority in respect of termination of appointment of the staff of the Local Government in the state, and so plaintiff’s appointment was terminated by the Military Governor of Ogun State in exercise of his power. This was done in pursuance to the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984, by virtue of which the Court lacks jurisdiction. As regards the Administrative Panel of Enquiry, the plaintiff appeared before it, and in fact the reprimand was not the basis for the termination of his appointment. Besides, the 1st defendant has the right to do so with a month’s notice or payment in lieu, but in this case the plaintiff is not entitled to such. Evidence were adduced and addresses were made by counsel. After evaluation of evidence and consideration of the addresses learned trial judge found in favour of the plaintiff as follows:-

“All told, plaintiff’s action succeeds and both exhibits F and J are declared invalid, ultra vires, null and void and have no legal effect. Plaintiff is hereby awarded the total sum of N491,465.12 as damages for the wrongful termination of his appointment with defendants in lieu of the alternative order of reinstatement into his former employment and post.”

Dissatisfied with the decision the defendants appealed to this Court on eight grounds of appeal. In compliance with the Rules of this Court both parties exchanged briefs of argument, which were adopted at the hearing of the appeal. The following issues were formulated by the appellants in their brief of argument for determination.

1. Is Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation of Nigeria 1990 (hereinafter referred to as Decree 17 of 1984) the applicable law in the determination of the respondent’s appointment? If so was his appointment validly determined under that law?
2. Does the Court have jurisdiction to hear and determine the claim of the plaintiff/respondent?
3. Was the award of N491,465.12 as damages to the plaintiff not an erroneous estimate of the plaintiffs entitlements?
4. Whether the judgment was not unreasonable having regard to the evidence led in the case.

The issues were adopted by the respondent in his brief of argument. I will take the first issue first, and in doing so I will reproduce the relevant averments of the plaintiff in respect of this issue. They are:-

12. The plaintiff further states that, in that letter (No. PP.218.210/ of 26th November, 1987) i.e two days after the letter of reprimand the first defendant informed the plaintiff that the 3rd defendant had instructed it (first defendant) that the plaintiff’s appointment in the Local Government Services should be terminated with immediate effect on the ground of public policy. The first defendant then went ahead to terminate the plaintiff’s appointment with effect from 26th November, 1987.
13. The plaintiff will further contend that the purported instruction by the 3rd defendant for the termination of his appointment on the ground of public policy is wrongful and of no effect as the plaintiff was never given any hearing. The plaintiff contends that it was the duty of the first defendant to advise 3rd defendant on the correct procedure for dealing with Local Government staff, assuming that the 3rd defendant did in fact give the purported instruction for the termination of the plaintiff’s appointment.
14. The plaintiff finally avers that the petition to the 3rd defendant dated 11th December, 1987 asking for a review of his case in such away that his termination of appointment could be converted to retirement to take effect from 2nd July, 1988 when he would have put in fifteen years in the service to qualify for pension was not replied.

It is clear from the above averments that the plaintiff knew very well that the termination of his appointment was at the instance of the 3rd defendant. Whether he knew that this was done in pursuance to the provisions of Decree No. 17 of 1984 is another matter, but before I Answer this, I will reproduce the letter of termination Exh. ‘J’ which states inter alia:-

“Termination of Appointment

The State Military Governor has instructed the Commission that your appointment in the Local Government Service should be terminated with immediate effect, on the ground of public policy. Accordingly, your appointment is hereby terminated from the Local Government Service from the date of this letter that is, Thursday 26th November, 1987. However having spent more than ten years in the Local Government Service you will be entitled to gratuity which will be worked out by the Local Government Staff Pension Board.”

Prior to the above letter which bore 26th November, 1987, a memorandum was put up to the Military Governor jointly by the State Commissioner for Local Government and Chieftaincy Affairs and the Chairman of the Local Government, and it was sequel to that memorandum that the plaintiff’s appointment was terminated, as was testified by D.W.1. The memorandum dated 16th November, 1987 and admitted in evidence as Exh. ‘J’ was directed to the Military Governor of Ogun State and contains inter-alia the following:-

“Screening of Secretaries to the Ten Local Governments with view of the Removal of those of them who are senile, ineffective and unresourceful

In compliance with the directive of the State Military Governor on the issue of the existence of senile, ineffective and unproductive secretaries in some of our Local Government in the state, we have looked into the records of all the Administrative Officers in the Local Government Service who are either substantively holding the post of Secretary to the Local Government, GL. 15 or are functioning therein and we have discovered that the services of the underlisted four Secretaries could be dispensed with because their job performances, general abilities and potential for growth have declined considerably within the recent past to the extent that they could no longer stand the strains and stresses of the statutory functions of the post of a Secretary to the Local Government. They are:-

(i)

(ii) Mr. E.O.B. Dada, Administrative Officer, Grd. 1 G.L. 15, Secretary, Obafemi/Owode Local Government.”

It is the submission of learned counsel for the appellants that there is no equivalent provision to the expression “with immediate effect, with full benefits on the ground of public policy” in the Unified Local Government (Staff) Regulation, upon which the respondent relied in his pleadings. It is however the contention of learned counsel for the respondent that the use of the expression in Exh.J does not imply any special connotation. I agree, but then when one reads the content of Exhibits ‘F’ and’ J’ already reproduced supra together with S.4(2)(a) of the Public Officers (Special Provisions) Decree supra, carefully, one is bound to be convinced that there is a correlation. For the avoidance of doubt I will reproduce, the said S.4(2)(a) below. It reads:-

“4(2) In the operation of this Decree, the appropriate authority-

(a) 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…………. ”

Contrary to the submission of learned Counsel for the respondent that throughout the proceedings no evidence was given by the appellants or on their behalf that the provisions of Decree No. 17 supra were not invoked, the following averment in the amended statement of defence supported by the evidence I will reproduce below buttresses the appellants’ arguments.

“10. The defendants aver that the third defendant in ordering the termination of the plaintiffs appointment did not act pursuant to the Local Government Staff Regulations as his authority under the Public Officers (Special Provisions) Decree 1984 is not in any way fettered by the laid down procedure in the Unified Local Government (Staff) Regulations Cap. 63 Laws of Ogun State 1978.”

D.W.1 testified thus inter alia-

“I read this from plaintiff’s official file the then Military Governor approved or sanctioned the joint memorandum to him and thus authorized the termination of plaintiff amongst others vide Exh. J. The approval to terminate was duly executed vide Exh. ‘F’ herein.”

Then under cross examination

“Exh. F did not follow the normal procedure for discipline of a public servant in the position of plaintiff but on the extra ordinary one of the directive of the then Military Governor of the State.” I think the above amply applies or infers the invocation of the provision of the supra Decree. With the above materials in mind I have no doubt in my mind that the respondent knew that his appointment was terminated in pursuance to the supra Decree.

By virtue of S.3(2) of the Decree

“The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria 1979) relating to the matters to which this Decree applies or relating to the appointment, benefits, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.”

As such the Decree is superior to the said staff regulation of the Local Government, whose provision is not in line with the Decree on matters relating to appointment and dismissal etc. of Public Officers. See Garbo v. Federal Civil Service Commission & Anor. (1988) 1 NWLR (Pt. 71) page 449. It is instructive to note that although Exh. ‘F’ emanated from the office of the 1st defendant it is clear as crystal from its content that the 1st defendant merely carried out the instruction and wish of the 3rd defendant, who acted on Exh. ‘J’. See A.I. Wilson v. Attorney General of Bendel State & 2 Ors. (1985) 1 NWLR (Pt.4) 572; (1985) 2 SC. 191 relied upon by counsel to further buttress his view that the termination of the plaintiff’s appointment was predicated on Decree No.17 supra. Learned trial judge in his judgment found that none of the conditions stated in S.1(1)(a)-(d) applied to the plaintiff. For the purpose of clarity I will reproduce the said provisions which read:-

1(i) Notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that –

(a) It is necessary to do so in order to facilitate improvements in the organization of the department or service to which a public officer belong or

(b) by reason of age or ill health or due to any other cause a public officer has been inefficient in the performance of his duties or

(c) the public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or

(d) the general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest.

With due respect, I am of the view that it is inconceivable to say that none of the above conditions applied to the plaintiff, because for all intents and purposes I am of the firm conviction that the content of Exh. ‘J’ which facilitated Exh. ‘F’ can be directly linked with (a) (b) above. For the foregoing reasoning my answers to issue (1) supra are in the affirmative. Grounds of appeal Nos. (2), (3) and (4) related to the issue thus succeed.

I will treat issues (2) and (4) together. In arguing issue (2) supra learned counsel for the appellant relied upon the case of Professor C. Okeke v. Attorney General (Anambra State) and 4 Ors. (1992) 1 NWLR (Pt. 215) page 60 on the ouster of jurisdiction of the Courts. Learned counsel has submitted that once the court finds that the act in question is that of the appropriate authority then the Court ceases to have any further function to perform in respect of the matters as its jurisdiction automatically becomes ousted. The need to go into a detailed discussion of this submission is obviated because I have already held that the termination of the plaintiff’s appointment was done by the appropriate authority by virtue of Section 4(2)(a) of the Decree. Suffice to say therefore that by virtue of S.3(3) of the said Decree the lower Court lacked jurisdiction to hear the case, for by proceeding with the case the way he did, the end result would be, a nullity. “It is worth noting here that the learned trial Judge misconceived the intention of S.1(2) of the Decree supra, when after reproducing the provision which states-

“For the avoidance of doubt, it is hereby declared that any act or thing done at any time between 31st December, 1983 and the making of this Decree by the appropriate authority in respect of

(a) ………. shall be deemed to have been so done under this Decree.”

The learned trial Judge proceeded to remark that

“This presupposes that any act, conduct or thing done for which the said Decree No. 17 of 1984 will be applicable shall be such act, conduct, or thing done by or under it occurring not after, but between the 31st December, 1983 and or 27th June, 1984 when the Decree came into life. It cannot cover events, acts, conduct or thing done premised against the said decree beyond those dates such as exhibits F and J, which are dated respectively as 16th and or 18th November, 1987 for exhibit F.”

This is clearly a wrong interpretation of the intention of the above provision, as the learned trial Judge did not give it the consideration it deserves, for what the provision purported to do was to clarify the commencement and effective date of the Decree, bearing in mind the fact that the Decree bears 1984, a year later in time than the effective date. In this respect the cases of Babatunde v. Governor Western Region (1960) 5 FSC. 59, and Ikpassa v. A.G. Bendel State (1981) 9 SC. 7 cited by learned Counsel for the appellants are fortifying. Besides, if the learned trial Judge adverted his mind to the provision of S.5 of the Decree he would have found otherwise. The answers to these issues are in the negative, and so grounds of appeal Nos. (1) and (8) to which they are married succeed.

Issue (3) deals with the award of damages. In his amended Statement of Claim the plaintiff claimed as per paragraph 23 (iii). The learned trial Judge awarded

“His salary for 14 years at N21,294.00 per annum from now to the year 2001 (when plaintiff turns 60 years) N287,469.00”

That was after making the following comment in his judgment:-

“Without wondering a field, I adopt the non-contentious aspect of the case as sufficiently contained in the evidence of plaintiff with which defendants agreed and apply. I have on the basis that plaintiff will compulsorily retire at the age of 60 years at the year 2001 AD, by which time he has no choice or option left to exercise over his appointment. So his total entitlements monetarily as at that date will include his salaries for the unspent 13 and a half years from the date of the receipt of Exh. ‘F’.

It is on record that the Plaintiff testified on this head of claim as follows:-

“By the terms of my employment as an Administrative Officer Grade 15, I am to stay in service for some (thirteen) 13 and a half years from the date of the receipt of Exh. ‘F’. That is from 1987 to 2,000 by which time I will be 60 years old and to then compulsorily retire. I would have earned for the entire period of 131/2 years a total amount of N287 ,469 (Two hundred and eighty seven thousand, four hundred and sixty nine naira) as salaries…… I also would have been entitled to monthly pension at the rate of fifty six (56) percent of the terminal point scale of a level 15 officer which is N21,294.”

It is true that the above evidence was neither challenged nor debunked, and so ought to, and was accepted as admitted evidence which could be relied upon. See Omoregie v. Lawani (1980) 3-4 SC.108, and Wiri v. Wuche (1980) 1-2 SC. 1. However, in the course of cross examination the evidence that the plaintiff’s last scale of salary was N12,078.00 emerged.

The pertinent question here is was it right for the learned trial Judge to have swallowed the evidence hook, line and sinker (so to speak) without considering the excessive gap between the plaintiff’s last salary scale and the claimed terminal salary, even though the evidence was not attacked? I definitely don’t think so, for I believe it behove the learned trial Judge to have seen the vacuum created by the evidence in respect of the assessment of the salaries. This is to say there should have been evidence on when the salary would have fluctuated until it got to N21,294 the alleged terminal salary of the plaintiff, when he should have retired if he remained in the service. Having 131/2 years left, it cannot be envisaged that the salary of the plaintiff jumped abruptly from N12,078.00 to the said N21,294 at once. That would definitely be a feat. It is obvious from the calculation in the lower Court that the award was based on the terminal salary scale. I am satisfied that the assessment and award of the damages by the lower Court was wrong and the learned trial Judge fell into error in so awarding it. The cases of UwagbanebI v. Nigeria Palm Produce Board (1986) 3 NWLR (Pt. 29) page 489 and Adejumo v. UCH Board of management (1972) UILR (Pt. 11) 145, and Olatunbosun v. N.I.S.E.R. (1986) 3 NWLR (P.29) page 435 cited by learned counsel for the appellants are of assistance. At any rate the appellant reserves the right to terminate the appointment of the respondent by giving a month’s notice or a month’s salary in lieu of notice. In the light of the above discussion the answer to this issue is in the affirmative and so the related grounds 5, 6 and 7 of the appeal also succeed. The end result is that all the grounds of appeal succeed. In the final analysis the appeal is allowed, and the judgment of Somolu J. is hereby set aside. I make no order as to costs.

(Other Citations: 1997)LCN/0280(CA)