Mr. Michael A. Omo Vs Judicial Service Committee Of Delta State & Ors-2000

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, JSC. 

This is an appeal from a decision of the Court of Appeal Benin Division which overturned the decision of the trial High Court, Benin-City which had earlier held first that the removal of the Plaintiff as a Chief Magistrate was not covered by decree 17 of 1984 which ousted the jurisdiction of the Court and secondly that the removal was unlawful.

The Plaintiff Micheal A. Omo was a Chief Magistrate in the then Bendel State judiciary. By a letter dated 21 march 1985 Exhibit ‘C’ written by the 1st Defendant – Judicial Service Committee. It was stated that the Military Governor had approved the removal of the Plaintiff with immediate effect. He made fruitless efforts to get the decision to retire him rescinded and be reinstated. Subsequently he brought an action against the Judicial Service Committee and the Attorney-General of Bendel State claiming the following reliefs:

(a) A declaration that the plaintiff’s (sic) purported retirement as per a letter dated 21st March, 1985 is wrongful, unconstitutional, null and void and of no effect.

(b) A declaration that the Plaintiff is still in the employment of Bendel State Judicial Service.

(c) An order that the Plaintiff be reinstated to his position as Chief Magistrate Grade 1.

(d) A declaration that the Plaintiff is entitled to his salaries from 21st March, 1985 till date of judgment.

(e) An injunction restraining the Defendants and/or any agent of the Defendants from giving effect to the contents of the said letter pending the determination of this suit. Thereafter, the Plaintiff sought and obtained an order of court to join the Military Governor of Bendel State as third Defendant in the suit. In the affidavit in support of the application, he deposed, inter alia, as follows:

“4. That I know from my personal knowledge and correspondence with the Military Governor of Bendel State – the Party sought to be joined as the 3rd Defendant that the Military Governor was personally and directly responsible for my purported retirement and or removal from office as Chief Magistrate Grade 1.

9. That to the best of my knowledge and belief the Military Governor – the Party sought to be added as 3rd Defendant in this suit was personally and directly responsible for giving rise to the cause of action necessitating the insuance of this Writ of Summons.”

When the Plaintiff filed and served his Statement of Claim, the defendants moved the court for an order dismissing the claim on the ground that the action was not maintainable by virtue of the Public Officers (Special Provisions) Decree, 1984. In the supporting affidavit to this application one Patricia Ifeoma Okoye, a State Counsel in the Ministry of Justice, Bendel State deposed, inter alia, as follows:-

“4. That the Military Governor of Bendel State approved the immediate retirement of Plaintiff/Respondent in the exercise of his power as the Military Governor.”

In a counter-affidavit the Plaintiff deposed in para. 2,3 and 6 as follows:-

2. That para. 4 and 8 of the affidavit in support of Defendants/Applicants motion are false.

‘3. That in further reply to para. 4 of the Applicants affidavit that the retirement of the Plaintiff/Respondent by the Military Governor of Bendel State was a wrongful exercise of his power as Bendel State Military Governor.

6. That the Respondent herein did not apply for retirement nor was his retirement recommended by anybody before the Military Governor went ahead to retire him.” After learned counsel for the parties had addressed the court on the application to dismiss, the learned trial judge refused the application. He held that: “…….it has not been established to my satisfaction that the retirement of the respondent, was made pursuant to Decree No.17 of 1984.” The Defendants thereafter filed their Statement of Defence and the case proceeded to trial. The Plaintiff called one witness in support of his claim while the Defendants called four (4) witnesses amongst whom was the Secretary to the Military Government and Head of Service. In a reserved judgment the learned trial judge found in favour of the Plaintiff.

The Defendants’ appeal to the Court of Appeal Benin Division was allowed on the ground that the jurisdiction of the court had been ousted by Decree No.17 of 1984. The Plaintiff in this appeal has raised 5 issues for determination. They are:-