Osita C. Nwosu V. Imo State Environmental Sanitation Authority & Ors (1990) LLJR-SC

Osita C. Nwosu V. Imo State Environmental Sanitation Authority & Ors (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is a further appeal to this court against the judgment of the Court of Appeal, Enugu Division, Coram: Olatawura, Onu, and Omosun, JJ.C.A. That court had dismissed the appeal of the plaintiff, Osita C. Nwosu, against the ruling of an Owerri High Court, per Chianakwalam, J., that his jurisdiction to entertain the plaintiff’s suit had been ousted by Decree No. 17 of 1984.

Plaintiff’s claim before the High Court was finally amended by his amended statement of claim dated the 22nd day of May, 1986. For purposes of this judgment, I shall rely on the amended statement of claim set out at pages 131 to 136 of the record.

The salient points in the statement of claim could be summarized. The plaintiff averred that he was a civil servant and chief executive of the 1st defendant. He was appointed a civil servant in May, 1965, became secretary of the 1st defendant on 12/9/80, and its general manager/chief executive from 2/2/82.

On 12/2/82 the 3rd defendant directed the plaintiff to proceed on leave because a junior staff of the 1st defendant had petitioned against the plaintiff for misconduct. The leave had been extended twice. During the period a 5 man ministerial panel under the chairmanship of the 4th defendant was appointed to investigate the allegations in the petition, several witnesses had been called; but the plaintiff was not called to give evidence. Another panel, an audit panel was also set up under the chairmanship of the 3rd defendant. But it did not find anything against him. As his leave was being extended still, he had to petition the Military Governor.

Suddenly, on 15th June, 1985, he saw an advertisement in the Nigerian statesman, signed by the 2nd defendant,for the post of general manager of the 1st defendant, even though he had not been dismissed or his appointment terminated. His petitions and letter to the Military Governor inquiring whether he had been dismissed/terminated were not replied to. It was only in an application after he had instituted this action that a purported letter of his dismissal was exhibited; but none had been served upon him before then. The said dismissal was without any query and contrary to the opinion of the State Ministry of Justice. In paragraph 17, he amended his claim thus:

“(17) Wherefore the plaintiff claims against the defendants jointly and severally:

(1) A declaration that the appointment of the plaintiff as general manager of Imo State Environmental Sanitation Authority is still valid and subsisting.

(2) An order of court on the 1st, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him from June 1986 till date with immediate effect.

(3) An order of court setting aside the continuing compulsory leave imposed on the plaintiff by the 3rd defendant as being wrongful and ultra vires the powers of the 3rd defendant.

(4) An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever directly or indirectly, preventing the plaintiff from resuming his duty as general manager of the Imo State Environmental Sanitation Authority.”

Thus, from the plaintiff’s own showing;

(1) He was a civil servant as well as the general manager of the Imo State Environmental Sanitation Authority (hereinafter called the authority).

(2) He was aware that a letter of petition had been written against him by a staff of the authority alleging certain acts of impropriety and imminent collapse of the authority.

(3) He had been sent on indefinite leave pending an administrative inquiry into the allegations.

(4) He denied ever knowing that he had been dismissed from the service.

All the five defendants filed a joint statement of defence. They joined issues with the plaintiff on the above averments. It was averred therein that the plaintiff was merely seconded as general manager of the 1st defendant from his post in the Ministry of Health. It was pleaded that the 3rd defendant sent the plaintiff on compulsory leave in order to enable him carry out the directive of the Military Governor to investigate the allegations against the plaintiff in the petition. The plaintiff was given the opportunity to meet the case against him. In paragraphs 9, 10, 13, 14 and 21 of the statement of defence, it was pleaded as follows:

“(9) In answer to paragraph 8 of the statement of claim, the defendants state that the panel was set up in accordance with Decree No. 17 of 1984 and the directive of the Military Governor to whom the outcome of the investigation was submitted.

(10) In further answer to paragraph 8 of the statement of claim, the defendants state that the Military Governor directed that the plaintiff be dismissed and this was accordingly communicated to the plaintiff. Letter No. SS.96/T.1/7 of 5th June, 1985 is pleaded and the plaintiff is hereby given notice to produce this letter.”

(12) In further answer to paragraph 10 of the statement of claim, the defendants state that on 24th June, 1985, an officer of the Ministry of Health,the plaintiff’s present ministry was sent to the plaintiff’s house to deliver personally the dismissal letter to the plaintiff and could not do so as the plaintiff was not in. The wife of the plaintiff who was present refused to sign for the letter as she claimed that she had definite instructions from her husband not to sign any letter on his behalf. The Ministry of health’s despatch book is hereby pleaded and will be relied upon at trial.

(14) In further answer to paragraph 10 of the statement of claim the defendants state than on 26th June, 1985 another attempt was made by an officer of the Ministry of Health in company of two police escorts to serve the dismissal letter on the plaintiff in his house. This time the plaintiff was in but refused to receive the letter. . .”

(21) The defendants will further plead at the trial, lack of jurisdiction on the part of this Honorable Court to try the case in view of the Public Officers (Special Provisions) Decree 1984 Decree No. 17 of 1984 by virtue of which the plaintiff cannot maintain an action on breach of natural justice. ”

After the close of pleadings, the learned counsel for the defendants filed a motion on notice asking the court to strike out the suit on the ground that it lacked jurisdiction to entertain the same since the court’s jurisdiction had been ousted by Decree No. 17 of 1984. In support there was an affidavit of 12 paragraphs sworn to by one Christopher Uwunna Ohaja, acting general manager of the authority. In paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit he deposed as follows

“(5) That following a petition dated 14th December, 1984 which is exhibited and marked exh. ‘B’, the Military Governor directed an internal management audit panel into the affairs of the Environmental Sanitation Authority by letters SGI/S.0024/2/11/227 of 1st February, 1985 which letter is exhibited and marked exhibit ‘C’.

(6) Following the directive in exhibit ‘C’, the commissioner for local government set up an internal audit management panel into the affairs of the Environmental Sanitation Authority, appointed members of the panel and gave them the terms of reference-vide letter MLG/COM/S.290/142 of 13th February, 1985 which is exhibited and marked exhibit ‘D’. The panel sat, took evidence from all persons concerned or aggrieved including plaintiff/respondent, and submitted its report to the commissioner for local government who then forwarded the report to the Military Governor.

(7) The plaintiff/respondent duly testified and answered to allegations made against him before the panel.

(8) In paragraph 2.1.2 of the report the panel found as follows: ‘On the imminent collapse of the authority, the panel is satisfied that evidence abounds and that if nothing concrete and meaningful was done, the authority would undoubtedly collapse.”

(9) The Governor studied the report and by his letter No. GH/ PS.263/294 of 9th May, 1985 directed that the plaintiff/respondent be dismissed.

The said letter is exhibited and marked exhibit ‘E’.

(10) The dismissal was duly communicated to the plaintiff/respondent by letter SS.96/T.1/7 of 5th June, 1985 which letter is exhibited and marked exhibit ‘E’.

(11) That the Military Governor acted to improve and reorganize the authority along the lines decided by the executive council of Imo State.

(12) That I am informed by counsel L.C. Alinnor Esq., legal adviser, Ministry of Justice, Imo State and I verily believe same that the action taken by the Military Governor is covered by Decree No. 17 of 1984 and that no civil proceedings can lie in any court in respect of that action.”

Again, those documents were exhibited to the affidavit and numbered A to E. But I need only copy those, which I consider relevant to the issues that arise in this appeal. Exhibit “A” was a letter of appointment of the plaintiff to the post of general manager. It reads as follows:

“GOVERNMENT OF IMO STATE OF NIGERIA

MINISTRY OF HOUSING AND ENVIRONMENT,

COMMISSIONER’S OFFICE DIVISION,

OWERRI.

OUR REF: MHE/ENV./S.4/55

2nd February, 1982

Mr. Osita Christian Nwosu, Environmental Sanitation Authority, C/o. Ministry of Housing & Environment, P.M.B. 1543, Owerri.

APPOINTMENT OF THE GENERAL MANAGER

ENVIRONMENTAL SANITATION AUTHORITY.

I wish to convey to you His Excellency, the Governor’s directive to the effect that you be appointed the General Manager of Imo State Environmental Sanitation Authority. The appointment is with effect from 1st February, 1982. Other details of your appointment will be conveyed to you through the authority’s board.

2. It is hoped that you will live up to expectations for your high office.

Accept my hearty congratulations.

Yours faithfully,

Sgd. R.O. NWABUEZE

COMMISSIONER FOR HOUSING & ENVIRONMENT

I may observe that the letter did not state that the plaintiff should cease to be a civil servant on the appointment. Exhibit “B” was a petition to the Military Governor of Imo State headed “Imo State Environmental Sanitation Authortity: Mismanagement of Funds and Personnel and Eminent Collapse of the Authority.” It was dated 14th December, 1984 and covers 10 pages of typed script. I do not think I need to reproduce the petition here. Suffice it to say that it was signed by one Alex Onwudiwe Chimezie and made very serious allegations of acts of impropriety against the management of the authority and the plaintiff in particular.

From the issues that have arisen in this appeal, I deem it necessary that exhibit “C” be copied. It runs thus: “EXHIBIT ‘C’

CABINET OFFICE,

OWERRI.

DATE: 1ST FEBRUARY, 1985

SECRETARY TO THE MILITARY GOVERNMENT

AND HEAD OF SERVICE, IMO STATE.

OUR REF :SGI/S.0024/2/11/227

The Commissioner for Local Government,

Ministry of Local Government,

Owerri,

Dear Commissioner,

MANAGEMENT CONTRACT TO PHASE OUT THE CONSULTANCY TO

THE ENVIRONMENTAL SANITATION AUTHORITY DURING 1985.

The Military Governor has approved that you set up a small panel to investigate, in detail, the allegations contained in a petition dated 14th December, 1984 addressed to him by one Mr. Alexander Onwudiwe Chimezie.A photocopy of the petition is attached hereto.

2. The panel is expected to work quietly.

Furthermore, the Military Governor expects the panel’s report and all related comments within four weeks of the date of this letter. I am, therefore, to request that you insist on the panel’s report getting to you not later than the next three weeks so that your comments and the report can get to this office for further actions with the Military Governor within the deadline, please.

Yours faithfully,

Sgd. G. C. OKEZIE

AG. Secretary to

The Military Government

and Head of Service. ”

It is noteworthy that the setting up of the administrative panel of inquiry was approved by the Military Governor. It is also stated that the Military Governor would be expecting a report of the panel’s investigation. The permanent secretary Ministry of Local government proceeded to set up the inquiry by exhibit “D”. It does appear that after the panel’s investigation, the report was submitted to the Military Governor. Hence by exhibit “E” the reaction of the Military Governor to the report was conveyed to the commissioner for local government. Because of this appeal, I shall set it out in full. It runs thus:

“Exhibit ‘E’

GOVERNMENT HOUSE, OWERRI

9th May, 1985.

Our Ref: GHIPS.263/294:

The Commissioner

Ministry of Local Government

Owerri.

Dear Commissioner,

Environmental Sanitation Authority

Management Audit Findings

I am directed to refer to your letter to the Military Governor on the above subject and to convey the Military Governor’s directives as follows:

(a) The auditor general should investigate how the total sum of N5.3m which the Environmental Sanitation Authority received was expended.

The report should reach you in 3 weeks latest;

(b) that Mr. A.C. Nwosu be dismissed;

(c) that the appointment of Mr. B. S. Nwachukwu be terminated.

(d) that Mr. E. Ndiri, H.E.O., Mr. F. C. Okwuonu and Mr. E. C. Amanwa be retired;

(e) that the certificates of all the authority employees be screened immediately and anyone with faked or unauthenticated certificate should have his or her appointment terminated;

(f) that the appointments of Messrs. U. N. Onyejiaka, G. Opara and Engr. G. Igbokwe be terminated. They could reapply if the positions are advertised;

(g) that Mr. F. C. Okwuonu should refund the sum of N1,000.00 being the estimated cost of repairs of vehicle

No. IM 1048 UA which he misused.

2. The Military Governor agrees:

(a)that urgent steps be taken to reorganise the authority along the line of the exco conclusions;

(b) that now that the Environmental Sanitation Establishment (Amendment) Edict has been published, urgent steps should be taken to negotiate with progress bank for a loan and an overdraft facility to enable the authority put back on the road all the vehicles that are now stranded.

3. He further directs that the man who reported the discrepancies should be compensated.
4. More directives on the report will be made available to you in due course. Meanwhile, you are advised to release the retirements piecemeal pending the time their departure will not militate against the functioning of the authority.

Yours respectfully

Sgd. B. C. AGUNANNE

For: Principal Secretary.”

I may observe that this directive includes the statement that Mr. O. C. Nwosu be dismissed. It does not specify whether O. C. Nwosu to be dismissed was as general manager of the authority or as a senior environmental planning officer in the Ministry of Health. I think it is right to say that in the con of exhibit “E”, if the directive was validly given and properly carried out, it would be capable of covering his office in the two capacities. I shall return to this later in this judgment.

It also contains directives, based on exco decisions, on the re-organization of the authority. The next exhibit was exhibit “F”, a letter of dismissal of the plaintiff from the service of Imo State government dated 5th June, 1985. I shall also copy this. It reads:

“Exhibit ‘F’

SS.96/T.1/7

5TH JUNE, 1985

Mr. O.C. Nwosu,

Senior Environmental Planning Officer, u.f.s.

The Permanent Secretary,

Ministry of Health,

Administration Division, Owerri.

Sir,

Dismissal from the Service of

Imo State Government:

Mr. Nwosu, Senior Environmental

Planning Officer G1.10

I am directed to inform you that, by an order of the Military Governor, you have been dismissed from the service of the Imo State Government with immediate effect, following the Environmental Sanitation Authority

Management Audit findings.

I have the honour to be Sir,

Your obedient servant

Sgd. Y. O. ANOJENWERE,

FOR SECRETARY.

REF: NO. SS/96/T.1/17 A

Civil Service Commission,

P.M.B. 1225, Owerri,

5th June, 1985.

Copy to:

The Permanent Secretary,

Ministry of Health,

Administrative Division,

Owerri.

Above for information and necessary action.

2. Please deliver the attached original letter without delay to Mr. Nwosu who is on posting to the Environmental Sanitation Authority.

Sgd. Y. O. ANOJENWERE,

for Secretary.”

(Italics mine)

It is important to note that the plaintiff was regarded as being on posting to the authority. The plaintiff filed a counter-affidavit, of which the most relevant depositions were in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 in which he deposed as follows:

“(2) That I was never dismissed by the Military Governor nor by the commissioner for local government.

(3) That the Military Governor did not authorise any particular person to dismiss me as required by section 4(2)(i) of Decree No. 17 of 1984.

(4) That I was never involved in any inquiry affecting the Ministry of Health as I am not a staff of that Ministry not being employed in the civil service of the state.

(5) That my name was gazetted in the Imo State Gazette, No. 32 Volume to of 5th December, 1985 as having been dismissed in the Ministry of Health.

(6) That the Ministry of Health has nothing to do with the commissioner for local government.

(7) That I was a public officer on grade level 15 as general manager of the Environmental Sanitation Authority and nowhere is there a document in form of letter or gazette dismissing such an officer.

(8) That the Civil Service Commission of Imo State has no authority over the employees of the statutory corporation.

(9) That my suit is that there was no dismissal at all in which case, my lawyer Chief M. I. Ahamba informs me, and I verily believe him that Decree No. 17 will not apply.

(10) That the panel of inquiry did not find me responsible for the quotation cited in paragraph 8 of the affidavit of the respondents, in support of the motion, nor did the deponent complete the paragraph which has a following sentence thus:

“For example, most of the plants of the authority have broken down with minor faults that could easily be repaired.”

(11) That the respondent quoted that paragraph to find something to rest on the panel did not find me guilty of any fraud.”

I may note that he did not deny paragraph 7 of the affidavit in support, which deposed that he (plaintiff) attended the sessions of the investigating panel, gave evidence and asked questions. What he said of paragraph 8 was not a denial. He admitted it and added something more. Also, paragraph 4 of his counter affidavit contradicts his pleading in his statement of claim. For in the former, he denied being in the civil service of the state whereas in paragraph 1 of the former he pleaded that he was “at all times material to this incident… a civil servant and the general manager/chief executive of the 1st defendant…” It appears to me from other materials before the court at the trial that his averment of the pleading is more consistent with the true position, he was both a civil servant and the general manager of the authority. This point is important if we must understand the line of communication of his letter of dismissal.

The learned trial Judge in his considered ruling took into full account the affidavits on both sides as well as the documentary exhibits and came to the conclusion that the jurisdiction of the court to entertain the suit had been ousted by Decree No. 17 of 1984. He therefore struck out the case with costs. Plaintiff’s appeal to this court, the plaintiff shall be called the appellant and the defendants, the respondents. Counsel on both sides filed their clients’ briefs of arguments, which they also adopted before us before proceeding to address us orally.

The issues for determination arising from the grounds of appeal filed were formulated by the learned counsel for the appellant thus:

“(1) The claim reproduced in the lead judgment of the Court of Appeal (p. 243) as being the claim before the court which was the amended claim being different from the claim reproduced by the trial Judge (p. 158-159) which was the original claim on p. 9, was the Court of Appeals right to sustain a ruling based on a statement of claim which was no longer before the court, and which materially differed from what was actually before the court

(2) Considering that the purported letter of dismissal was not signed by the Military Governor, nor by any person duly authorised by him so to do, can the appellant be said to have been dismissed by any appropriate authority as required by Decree No. 17 of 1984

(3) The letter of dismissal having not stated which arm of section 1 (1) of Decree 17 applied to the appellant, can the purported act of dismissal be properly said to have been done under Decree No. 17 of 1984

(4) Where an act of dismissal is in issue would Decree No. 17 of 1984 be properly invoked prior to a finding of the existence of the fact of dismissal and can this fact be resolved without hearing evidence

(5) Can the purported dismissal of the appellant in a post he vacated in 1981 in the civil service be properly construed as a dismissal in his present position in a parastatal considering that section 277 of 1979 constitution makes a clear distinction between public service and civil service

(6) Was the trial Judge right to have decided the issue before the court, i.e. whether there was a dismissal or not, in order to decide whether Decree No. 17 of 1984 applied or not.”

The formulation of these issues by the learned counsel for the respondents is as follows:

“(1) Was the appellant dismissed by the Military Governor of Imo State by virtue of the powers conferred on the Military Governor, as the appropriate authority, by the Public Officers (Special Provisions) Decree No. 17 of 1984.

(2) Alternatively, can it be said that the appellant was dismissed by the Civil Service Commission of Imo State.

(3) Whether the decision of the trial court which was affirmed by the Court of Appeal was based on a statement of claim that was no longer before the court.

(4) Who was actually dismissed, the senior Environmental Planning Officer, or the general manager Imo State Environmental Sanitation Authority or Mr. O. C. Nwosu.”

I prefer the formulation of the issues for determination by the learned counsel for the respondents. Such issues should, rightly, be formulated in general practical terms, and tailored to the real issues in controversy in the case. It should also be shown of all argument, as such belongs to another part of the brief. In the instant case, the learned counsel for the appellant fell into the error of framing the issues in form of a miniature argument, with the result that it became too detailed, argumentative and too long. That ought to be avoided. I shall however consider the appeal on the basis of the issues formulated by the respondent supplemented by any relevant questions in the appellant’s brief which are not covered by the respondent’s formulation of the issues.

A lot of submissions in the briefs and in argument make it necessary that I begin my consideration of this appeal by asking myself the questions:- on what materials do I base my decision Can I take into account the affidavit evidence before the court Do I consider the pleadings or only the statement of claim

It was suggested in appellant’s argument that the learned trial Judge should have confined his consideration of the case to, and presumed the correctness of, the averment in the statement of claim. With respect, to have done so would have been tantamount to mixing up two different rules, prescribing two diametrically opposed procedures, that is to say order XXIX rules 1-3 and order XL rules 1 and 2 of the High Court Rules of Eastern Nigeria applicable in Imo State. The former is a procedure in lieu of a demurrer, and, in the ipsissima verbis of the rule:

“the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed. ” see Emembolu v. Emembolu (1974) 4 E.C.S.L.R. 125, at page 128.

The motion in this case was, however, brought not under order XXIX rules 1-3 but under order XL rule 2. That rule is cast in a different con, is intended for a different purpose, and prescribes a different procedure. The whole of order XL deals with trial. I provides thus

“ORDER XL-TRIAL

(1) The trial of every suit shall take place before the court and the court shall determine all questions of fact or of law, and partly of fact and partly of law, arising in such suit.

(2) If the court considers it conducive to justice, it may direct that anyone or more issues of fact or law arising in any suit may be tried before any other issue or issues. ”

These provisions are peculiar to the eastern and northern states (for the north, see order 24 rule 10 of the Civil Procedure Rules) and have no counterpart in the western states, Bendel and Lagos in which order 22 serves the same purpose as order XXIX (east).

It is clear that order XL rule 2 of the High Court Rules for Eastern Nigeria, applicable in Imo State, under which the motion was brought in this case is designed to be a form of trial. It was intended that the issue of ouster of jurisdiction should be tried. An issue is tried when there has been a judicial examination and determination of that issue in court, in accordance with the rules of the particular court, based on the evidence and other materials the parties have produced on the issue and having regard to the issues that have arisen on the pleadings.

So, a trial under order XL rule 2 implies that evidence shall be called on the issue, the nature of such evidence, of course, depending on the circumstances. Evidence, of course, includes affidavit evidence. For it is a matter of common knowledge that in any cause or matter begun by originating summons or originating motion, and on any application, evidence may be given by affidavit, unless the rules or the court otherwise directs, but that the court may order oral evidence to be given in edition thereto or for the affidavit evidence, when in conflict, to be tested.

It appears to me that, having regard to the nature of the issue of jurisdiction in this case and as it was one which, if it succeeded, was capable of disposing of the whole case, it was proper for the respondents to have sought that it be tried first and equally convenient that the evidence be by affidavits, with exhibits. If the appellant himself did not like such a procedure he could have resisted it see Samuel Atughue v. Okwuegbunam Chime and Anor. (1963) 1 All N. L. R. 208. But he did not. Rather, he went ahead and filed a counter affidavit, whereby in my opinion, he would be deemed to have endorsed or at least acquiesced to the procedure. Having done so, he must accept the fact that by the affidavit with exhibits and the counter affidavit, he and the respondents had put the learned trial Judge in a position in which he must adjudicate on the issue of ouster of jurisdiction, having due regard to the issues that arose on the pleadings. Appellant cannot now be heard to complain.

In considering the above issues, I must advise myself that what was really the function of the High Court at the stage at which the case was struck out was to inquire whether in fact the jurisdiction of the court had been ousted. The court had to be guided by the principle that every superior court of record guards its jurisdiction jealously. So, while a person’s access to have his civil right adjudicated upon by a court may be restricted or ousted by statute, the language of such a statute must be construed strictly. But once, with such an approach, it is clear that an ouster or restriction of the jurisdiction was intended and that, from the facts of the particular case, it comes squarely within the four corners of the statute, the court has no alternative but to hold that its jurisdiction has been ousted.

For, while a statute may provide that the jurisdiction of a court has been ousted with respect to a particular cause, the court always has the jurisdiction to inquire whether on the facts and circumstances of the particular cause, its jurisdiction has infact been ousted or restricted see on this Wilkinson v. Banking Corporation (1948) 1 K.B. 271, at p. 725, C. A. I shall, therefore, limit my inquiry to those issues which to go answer the question:- was the jurisdiction of the High Court of Imo State to entertain the suit ousted by Decree No. 17 of 1984, one way or the other. I shall first but briefly deal with the first issue in the appellant’s brief and the 3rd issue in the respondents. The gist of the appellant’s complaint in this regard is that in so far as the learned trial Judge based his ruling on jurisdiction on a statement of claim which had been amended by an amended statement of claim, the ruling cannot be sustained.

The learned counsel for the appellant, Chief Ahamba, submitted that whether or not a court has jurisdiction can only be determined from the averments in the statement of claim. The amended statement of claim superceded the original statement of claim. So, in so far as the ruling was based on the statement of claim which no longer existed because it had been superceded, the ruling cannot be sustained. He cited the following authorities in support of his submissions. Thomas v. Olufosoye (1986) 1 N. W. L. R (Pt. 18) 550; Salami v. Oke (1987) 4 N. W. L. R (Pt. 63) 1; Oguma v. I.B.W.A. Ltd. (1988) 1 N. W. L. R (Pt. 73) 658; Orizu v. Anyaegbunam (1978) L. R. N 216; and Overseas Construction Ltd . v. Creek Ent. Ltd. (1985) 3 NWLR (Pt. 13) 407.

In his own submission on behalf of the respondents, Mr. Alinnor, the learned Solicitor-General, on behalf of the respondents, while conceding it that there was a slip submitted that both the statement of claim and the amended statement of claim, which amendment was granted shortly before the ruling complained of, raise substantially the same issue of jurisdiction of the court of trial. So, the slip is not substantial, he submitted.

I may briefly recall the circumstances leading to the slip. The appellant commenced this suit on 20th June, 1985, when he was sent on indefinite leave.

The original claim was for a declaration that the post of general manager of the authority was not vacant and two injunctions restraining the respondent from filling the post. When it came to the notice of the appellant that the post had been filled, he amended his claim on 1st December, 1985 to read:

“WHEREOF the plaintiff prays the court against the defendants as follows:

“(1) An order of the court that the conduct of the defendants jointly and severally leading to the purported dismissal of the plaintiff is illegal, wrongful, unconstitutional, null and void and of no effect.

(2) An order of the court re-instating the plaintiff to the post of general manager/chief executive of the Imo State Environmental Sanitation Authority.

(3) An order of this court that the plaintiff is entitled to be paid arrears of his monthly salaries and other prerequisites of office with effect from June, 1985 until date of judgment in this case.

This amended claim was the basis of his statement of claim filed on the 16th of January, 1986. Again on the 18th March, 1986, he filed yet another motion for leave to amend his statement of claim. Having been granted leave, he filed his amended statement of claim on 22nd May, 1986. In that amended statement of claim, he pleaded fresh facts and amended the reliefs he claimed to read thus:

“Wherefore, the plaintiff claims against the defendants jointly and severally.

“(1) A declaration that the appointment of the plaintiff as general manager of Imo State Environmental Sanitation Authority is still valid and subsisting.

(2) An order of court on the 1st, 2nd and 3rd defendants to pay the plaintiff the arrears of salaries and emoluments due and accruing to him vires the powers of the 3rd defendant.

(4) An injunction restraining the 1st, 2nd and 3rd defendants from in any manner whatsoever directly or indirectly, preventing the plaintiff from resuming his duty as general manager of the Imo State Environmental Sanitation Authority.”

But importantly by 23rd April, 1986, that is about one month before the appellant filed his amended statement of claim, the respondents had filed a motion to strike out the suit on the ground that the court lacked jurisdiction to entertain the suit. It is true, therefore, that although the appellant was granted leave to amend his pleading the only pleading of the appellant that was extant and therefore in the contemplation of the parties at the date of filing the motion to strike out the suit was his statement of claim, filed on 16th January, 1986. The result is, in my view, that technically the appellant’s amended statement of claim filed on the 22nd May, 1986, superceded the existing statement of claim dated 16th January, 1986, for all the proceedings in the case. It is deemed to have related back to the date of the original statement of claim. See Sneade v. Wortherton Barytes & Leading Mining Co. (1904) 1 K.B. 295, p. 297 should have been the basis for the consideration of the motion before the court. To that extent, Chief Ahamba is correct. But that is not the end of the problem. For conceding, as I must, that the learned trial Judge committed a slip by basing his ruling on the existing statement of claim when he should have based it on the amended statement of claim, I must still have resolved the issue against the appellant. This is because in so far, as pointed out by both the Court of Appeal in its judgment and the learned counsel for the respondents in his brief, both the existing statement of claim and the amended statement of claim raises the issue of the jurisdiction of the court, I should resolve the issue against the appellant. As we have stated several times, the days when parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots which never deviate from a programmed course. They sometimes slip. But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onojobi v. Olanipekun (1985) 11 S.C. (Pt.II ) 156, at p. 163 also Jude Ezeoke and Ors. v. Moses Nwagbo and Anor. (1988) I NWLR (Pt. 72) 616 at p.626. In the instant case, as it is pretty clear that the issue of jurisdiction could have been raised either on the existing statement of claim or the amended statement of claim the reliance on the former instead of on the latter, even though in error, is not a ground for allowing the appeal.

I shall now take issues numbered 2 and 4 by the appellant and that numbered (ii) by the respondent. Put simply, they raise the questions:- was the appellant, if at all, dismissed from his office by the Military Governor of Imo State or by the Civil Service Commission of that state The peripheral question which has been raised by the fourth issue as formulated by the appellant is whether Decree No. 17 can be invoked without hearing evidence to prove that the appellant has been dismissed.

With respect, I am of the view that the second part of the issue numbered 4 in the appellant’s brief rests on a clear misapprehension in so far as it tends to say that the issue as to whether or not the appellant had been dismissed from the public service of Imo State could not be resolved. It assumes that inspite of the massive affidavit evidence in support and the counter affidavit before the court, as well as the six documentary exhibits exhibited, no evidence had been taken. But as I stated above, the issue of jurisdiction was, by the consent or acquiescence of both parties, tried before the High Court in accordance with the procedure accepted by them to wit under O.XL rule 2 and by affidavit evidence. Evidence by affidavit is, it must be noted is a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence. For true, it is the law that where there is a conflict of affidavit evidence called by both sides, it is necessary to call oral evidence to resolve the conflict see Falobi v. Falobi (1976) 9 and 10 S.C. 1, p. 15;

But I believe that it is not only by calling oral evidence that such a conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be a yardstick with which to assess oral testimony see Fashanu v. Adekoya (1974) 1 All N. L. R 35, at p. 48. In the instant appeal, for an example, I feel entitled to resolve the conflict as to whether or not the appellant was dismissed by or at the direction of the Military Governor of Imo State, a conflict that arose from paragraph 6, 9, 10, 11 and 12 of the respondent’s affidavit in support of the motion, on the one hand, and paragraphs 2, 3 and 9 of the appellant’s counter affidavit, on the other. In view of this, it may not be quite correct to say that I am limiting myself only to such facts in the affidavits which are not in conflict. By the above approach, I shall be able to examine the issue of jurisdiction judicially and determine it one way or the other, according to order 40 rule 2 and the rules of evidence.

It was therefore in error for learned counsel for the appellant in this case to argue that the issue of jurisdiction was not tried.

Part of the argument on behalf of the appellant suggests that the letter of his dismissal from the service ought to have been signed by the Military Governor of the State himself. I think this line of argument has ignored a fundamental principle of law which is represented by the maxim; qui facit per alium facit per se. It was expressed in Co. Littleton 258a thus qui per alum facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself). The maxim has been applied in the execution of many official acts and directives, particularly by high functionaries of government. It was for such situations in official acts that Wade had to write in his Administrative Law (3rd Edn.) at p. 67:”Although, therefore, the courts are strict in requiring that statutory power shall be exercised by persons on whom it is conferred, and by no one else, they make liberal allowance for the working of the official hierarchy at least so far as it operates within the sphere of responsibility of the Minister.”

It would be unrealistic to imagine that the Minister would enjoy this power of acting through officials in his Ministry but that a Governor would not. Howbeit section 6(9) of the constitution (Suspension and Modification) Decree No. 1 of 1984 gave a constitutional stamp to the power of a Military Governor to perform his executive functions either directly or through persons or authorities subordinate to him. It provides:

“Any executive function which by virtue of any such delegation as is mentioned in subsection (8) above is exercisable by the Military Governor of a state may, subject to any conditions imposed under subsection (6) above be exercisable by him either directly or through persons or authorities subordinate to him.”

There is nothing in subsection (6) that limits the powers of the Governor in directing any person, body or authority to sign a letter of dismissal of a public officer in the state from the public service of state. So he was capable under the law to direct his principal service of state. So, he was capable under the law to direct his principal secretary, any commissioner of the chairman or secretary of the Civil Service Commission to sign such a letter on his behalf.

The next question is whether there was evidence before the learned trial Judge that the Military Governor, in fact, so directed. A summation of the facts deposed to in the affidavit in support and the six documentary exhibits exhibited, shown of all facts contradicted by the counter affidavit, shows the following facts namely:

(1) That as a result of a petition to the Military Governor of Imo State by one Mr. Alex Onwudiwe Chimezie dated the 14th day of December, 1984 (exhibit “E”) which complained of gross acts of impropriety and inefficiency by the appellant which were threatening the collapse of the Environmental Sanitation Authority of the State, the Military Governor approved the setting up of an administrative and an audit panel of investigation.

(2) The approval of the Military Governor was conveyed by a letter dated 1/2/85, exhibit “C”, set out above, which was signed by the secretary to the Military Government and Head of Service. It is noteworthy that exhibit “C” not only expressed the Military Governor’s approval but also stated that the Military Governor was expecting “The panel’s report and all related comments within four weeks of the date of the letter” exhibit “C” I further observe, was addressed to the Commissioner for Local Government whose Ministry had supervisory control over the authority at the time.

(3) By exhibit “D”, the permanent secretary Ministry of Local Government signified the appointment of the investigation panel by the Commissioner for Local Government, and set out its composition and terms reference.

(4) It does appear from exhibit “E” that the report of the investigating panel was forwarded by the Commissioner for Local Government to the Military Governor. However, by exhibit “E” the Military Governor conveyed his reactions thereto and gave various directions on the fates of several members of staff, including the appellant, as well as diverse operations relating to the authority. This important document has been copied above. The portion of it that is relevant to this case is where it states:

“Environmental Sanitation Authority Management Audit Findings

“I am directed to refer to your letter to the Military Governor on the above subject and to convey the Military Governor’s directives as follows:

(a) XXX

Sgd. B. C. Agunanne

for: Principal Secretary.”

(5) By a letter, exhibit “F” dated 5th June, 1985, addressed to the appellant, he was informed that ”by an order of the Military Governor” he has been dismissed from the service of the Imo State Government with immediate effect, following the Environmental Sanitation Authority Management Audit Findings. Thus exhibit “F” gave effect to the directive of the Military Governor as conveyed by his principal secretary in exhibit “E”.

(6) On appellant’s own showing, in paragraph 5 of his counter affidavit, his dismissal has been gazetted in the Imo State Gazette No. 12 Vol. 10 of December 5, 1985. This put his dismissal beyond question.

A subsidiary question raised on behalf of the appellant in argument is that his dismissal had not been communicated to him and that before the question as to whether his dismissal was right or wrong could be decided, the fact of his proper dismissal must first be proved. Appellant made a very big issue of this in paragraphs 10, 11, 12 and 13 of his amended statement of claim and indeed, this was the basis of his claim from its inception on the 15th of June, 1985, until an amendment on the 22nd of May, 1986. The respondents in paragraphs 12, 13 and 14 of the statement of defence averred that the appellant was evading service of the said letter of his dismissal but that he had been duly served. This became an issue for trial. In the respondent’s affidavit in support of the application under order XL rule 2, it was deposed on their behalf as follows:

“(10) The dismissal was duly communicated to the plaintiff/respondent (i.e. appellant herein) by letter SS.96/T.1/7 of 5th June, 1985, which letter is exhibited and marked exhibit ‘F’.”

Though he filed a 13 paragraph counter affidavit in opposition to the motion for dismissal of the suit and replied to certain specific depositions in the affidavit in support, he never specifically denied that the dismissal was communicated to him by the letter, exhibit ”F”. It is, therefore, deemed to have been admitted. Besides, he himself in paragraph 5 of his affidavit quoted the particulars of the official gazette in which his dismissal was gazetted. This is a notice to the whole world. In the circumstance, it does not lie in his mouth to dispute that his dismissal was duly communicated to him.

On the above state of the facts, it appears pretty clear to me that by exhibit “A” the appellant was appointed the general manager and chief executive of the 1st defendant authority. A petition was addressed to the Military Governor of Imo State against him for misconduct, as per exhibit “B “. On the strength of exhibit “B”, the Military Governor directed that the petition be investigated by a panel. On the report being submitted to the Governor he reacted thereto by exhibit “E” whereby he, inter alia, directed that the appellant be dismissed from the Imo State Public Service. Because the appellant was still a civil servant as well as the chief executive of the 1st defendant authority his letter of dismissal exhibit “F” had to be signed by the secretary to the Military Government but routed through both the Civil Service Commission and his parent ministry, that is, the Ministry of Health. From my above conclusion that that dismissal was duly communicated to him, I am satisfied that all the holes the appellant has been trying to pick on the method of dismissal are not valid. It is also pretty clear that it was duly directed by the Military Governor.

Learned counsel on behalf of the appellant has attacked the fact that the letter of dismissal exhibit “F”, was signed by the secretary to the Civil Service Commission. As I have stated the appellant remained both a civil servant and the general manager of the authority. Although the commission could dismiss a civil servant in accordance with the Civil Service Rules, it did not in this case pretend to exercise its own powers. As exhibit “F” clearly says, it was carrying out the orders of the Military Governor following the Sanitation Audit Report. This distinguished his case from that of Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572 upon which the appellant relies.

Appellant has also argued that even if he had been duly dismissed as a civil servant by reason of the gazette and exhibits “E” and “F”, he still retains his position as the general manager of the authority which was created by statute as a legal person. Learned counsel on his behalf submitted that under section 277 of the constitution there is a great difference between “the civil service of the state and the public service of the state.” So, his dismissal as the former does not necessarily include his dismissal as the latter.

No doubt “civil service of a state” is service in a civil capacity such as the appellant was as a staff of the Ministry of Health or of Local Government at one time or the other. On the other hand, “public service of a state” includes a state of the authority which was established by law for the state. I may pause here to observe that the expression “public service of a state” is defined in section 277(1) of the constitution of 1979 to mean “the service of the meaning of Decree No. 17 of 1984 includes civil service. So, having said so, I am of the view that in the Decree No. 17 of 1984 and the true facts of this case, the two posts are not mutually exclusive. I believe I can take notice that under the present military administration many civil servants are deployed to work in corporations and government owned companies without loosing their status as civil servants. Besides, the appellant pleaded he was a civil servant and chief executive of the 1st respondent.

Now, on the facts, it must be noted that:

(1) In exhibit “A” by which he was appointed general manager of the authority it was not stated that his appointment as principal planning officer in the Ministry of Health had been terminated.

(2) In exhibit “E”, the Governor simply directed, this was wide enough to cover his dual functions as a civil servant as well as a public servant in the authority.

(3) This directive was duly carried out in exhibit “F” by which he was simply dismissed “from the service of the Imo State Government,” which again, is wide enough to embrace the two functions in that it was not stated whether O. C. Nwosu being dismissed from the service was the general manager of the principal planning officer.

Now sections 1 and 4 of Decree No. 17 of 1984, provide as follows:

(1) 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 organisation of the department or service to which a public officer belongs; or

(b) by reasons 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 anyway 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, the appropriate authority may at any time after 31st December, 1983:

(a) dismiss or remove the public officer summarily from his office; or

(b) retire or require the public officer to compulsorily retire from the relevant public service.

(1) In this decree, “public officer” means any person who holds or has held any office on or after 31st December, 1983 in-

(a) the public service of the federation or of a state within the meaning assigned thereto by section 277(1) of the constitution of the Federal Republic of Nigeria 1979;

(h) the service of a body whether corporate or unincorporated established under a federal or state law;

(c) a company in which any of the governments in the federation has a controlling interest.

(2) In the operation of this decree, the appropriate authority

(a) in respect of any office which was held for the purpose of any state, shall be the Military Governor of that state or any person authorised by him; and

(b) in any other case, shall be the Head of the Federal Military Government or any person authorised by him or the Armed Forces Ruling Council.

(3) In this decree, any reference to the constitution of the Federal Republic of Nigeria is a reference to that constitution as affected by the constitution (suspension and modification) decree 1984.”

Learned counsel for the appellant, relying on decisions of this court in Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C.I, at p. 25 and Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449, at p. 477 urged us to hold that, as this is a statute which takes away a citizen’s right of access to the courts, it ought to be construed narrowly and strictly. With that much I agree. But it is with his further submission that the principle was breached in this case that I find it difficult to agree. In saying so, I must advise myself that to construe a statute narrowly and strictly does not mean that the court should arbitrarily, in appropriate metaphor, wring a false meaning out of the language of the statute. Rather as applied to statutes generally, it means that the court should give a fair and natural interpretation to the statutory language as applied to the facts of the particular case and, not straining the meaning of the words unnecessarily but guided by certain principles, arrive at a reasonable construction. See Dyke v. Elliott. The Gauntlet (1872) L.R. 4 P.c. 184. Certain principles guide the court in such an exercise. If there should be any doubt, gap, duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or a deprivation of his right see London and Country Commercial Properties Investments Ltd. v. Attorney-General (1953) 1 All E.R. 436, at p. 441-442. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction. Tuck and Sons v. Priester (1887) 19 Q.B.D. 629 at p. 638. If there is any doubt as to whether the person to be penalised or to suffer a loss of the right comes fairly and squarely within the plain words of the enactment, he should have the benefit of that doubt I.R.C. v. Duke of Westminster (1936) A.C. 1 at p. 19. See on these Maxwell: On Interpretation of Statutes (12th Edn.) p. 239. If after the above approach and the application of the above principles the person to be affected comes squarely and fairly within and is affected by the words of the statute, the court has no alternative but to apply it.

Applying the above approach and principles to the instant case, and construing the words of Decree No. 17 of 1984 set out above accordingly, there can be no doubt that the appellant as the general manager of the authority is a public officer within the meaning of section 4(1)(a) and (b) of the Decree; nor that the Military Governor of Imo State is an “appropriate authority within section 4(2)(i); nor that he is the person empowered to dismiss an officer either personally or through appropriate functionaries, or organs of government, under powers vested in him by section 1 (1) of the decree.

It has been argued on behalf of the appellant that the Military Governor or persons or organs of government acting on his behalf ought to have stated under what section of the decree they acted. Learned counsel submitted that by analogy from the land use act, it was necessary for the Military Governor to have shown clearly under what subsection, or section, he dealt with the appellant. Decisions of the Court of Appeal in Obikoya & Sons Ltd. v. The Governor of Lagos State & Anor. (1987) 1 NWLR (Pt. 50) 285 at pp. 402-403 and Lagos State Development & Property Corporation & Ors. v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413, were cited in support. Learned counsel for the respondents argued that the same principle is not applicable to the two legislations.

I believe that an indubitable offshoot of the principle of construction that the courts must seek out the legislative intention and give effect to it is that every statute must be construed according to its tenor. If I am right, then cases decided under the land use act cannot be useful guides in the interpretation of Decree No. 17 of 1984. The land use act, in section 50 defines and categorizes “public purposes” for which a Governor may revoke a right of occupancy. In the cases cited by counsel, it was held that as the possessor of the right of occupancy had a right to petition or otherwise protest against the taking away of his right the Governor must state under which of the nine categories of public purpose he is acting. The tenor of Decree No. 17 of 1984 is different. It enables the Military Governor to dismiss, terminate, retire, etc. a public officer and goes further to oust the jurisdiction of the courts from adjudicating on “anything done or purported to have been done pursuant to the decree” see section

3(3) of the decree which provides:

(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceedings have been or are instituted before, on or after the making of this decree, the proceedings shall abate, be discharged and made void.

It is a drastic decree. Most courts do not like it; but they are all bound to give effect to the legislative intention, if there is no escape route. It appears to me that the clear intention of the words “or purported to have been done” is that even where the reason for the Governor’s action under the decree does not fall squarely within any of paragraphs (a)-(d) of subsection 1, if there is satisfactory evidence say, from the letter addressed to the public servant or from other surrounding circumstances that he believed and intended that he was acting under the decree, the ouster provision will apply.

For this reason, I do not see what useful purpose it will serve to insist that he ought to have specified under what paragraph of subsection 1 of section 1 that he acted. For this and other reasons, I shall mention annon, I agree with the learned counsel for the respondents that this was not necessary. The decree contains no such requirement, and it would be wrong in principle to read into it a condition it did not provide for. Moreover, dismissal and other disciplinary actions against civil and public officers are not a normal function of a Military Governor and chief executive of a state, but of such bodies as the Civil Service Commission and the heads of different parastatals. Decree No. 17 of 1984 conferred a special and unusual power to a Military Governor to dismiss public officers.

It was promulgated on the 27th day of June, 1984 and makes a special provision in section 1(2)( a) and (b) whereby persons dismissed, terminated or retired by or at the direction of the Military Governor between December 31st, 1983 and the date of promulgation of the decree would be deemed to have been duly dealt with under the decree. In the circumstance, I believe it would be unreasonable, having regard to the tenor of the decree, to hold that persons similarly dealt with since the promulgation of the decree cannot be deemed to have dealt with under the decree simply because no section of the decree was quoted in the letter of dismissal. I do not so hold.

The learned counsel for the appellant tried to make a heavy weather of the fact that the report of the investigating panel was not before the court. I note that both sides in their affidavit and counter affidavit quoted freely from the report. None disputed the correctness of what his/their adversary quoted. Be that as it may, to my mind, even if its production was desirable in order to give the court a complete picture of the facts, its omission is not fatal to the preliminary objection taken to the suit, for two reasons. First, under the decree the Military Governor was not obliged to set up a panel of inquiry at all. All that was necessary was that he should be satisfied from materials placed before him that he should act. As it is so, it appears to me unreasonable to hold that the respondents’ preliminary objection must fail because the report was not in evidence. If, on other facts placed before the court, it could reach the decision that the Military Governor acted under the decree, that would be enough. Secondly, at the stage that had been reached in the case, there was yet no inquiry as to whether or not the Military Governor acted properly. Indeed no court had the power to so inquire why its jurisdiction had been ousted. All it could inquire into was, as I have stated, whether or not its jurisdiction had in fact been ousted.

It is enough, in my view, that I limit my inquiry to whether the Military Governor had the power to dismiss the appellant and whether, on the facts proved in this case he dismissed the appellant pursuant to that power.

The obvious answer to the first questions is that he had the power to dismiss the appellant under the decree. On the second question, it was pleaded in paragraph 21 of the statement of defence that the Military Governor dismissed the appellant pursuant to his power under Decree No. 17 of 1984. There was no reply to that point. Again in paragraphs 11 and 12 of the affidavit in support of the motion, it was deposed that he acted in exercise of his powers under the decree.

There was nothing to the contrary from the appellant. In view of what I have said about trial under order XL rule 2 of the High Court Rules of Eastern Nigeria, applicable in Imo State, it appears to me inevitable that any court must find that the Military Governor acted under Decree No. 17 of 1984 and that he directed the dismissal of the appellant. From the contents of exhibits B, C, D and E, particularly exhibit E, it appears that pursuant to his powers and under Decree No. 17 of 1984, the Military Governor of Imo State decided to dismiss the appellant, Mr. O. C. Nwosu, from the public service of the state to facilitate improvements in the organization and operation of the authority, to prevent it from imminent collapse, and directed accordingly.

That was carried out. The admission of the appellant, a man who had the ultimate responsibility in the 1st respondent authority, in his counter affidavit, that motor vehicles and other machinery of the authority had been grounded due to minor repairs is a poor testimony of his sense of responsibility. These shortcomings entitled the Military Governor to dismiss him under section 1 (a) and (d) of the decree. It was not necessary to refer to these subsections in the letter directing his dismissal. As it was so, the jurisdiction of the High Court of Imo State to entertain the suit has been ousted. The courts below were right to have said so.

Therefore, for all I have said above, the appeal fails and is hereby dismissed. I assess and award costs against the appellant in the sum of N500.00.

OBASEKI, AG. C.J.N.:- I have had the advantage of a preview of the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C., and find that the opinions on all the issues expressed therein accord with mine. The appeal fails and is hereby dismissed with N500.00 costs to the respondents.

The main issue in this appeal is whether the appellant having been dismissed by the Military Governor in exercise of his powers under Decree No. 17 of 1984 titled Public Officers (Special Provisions) Decree 1984 section 1(1)(d), he can sue the defendants for the reliefs claimed herein. Section 3(3) of the decree deprives the plaintiff/appellant of any right to sue as it provides that ”no civil proceedings shall or be instituted in any court on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceedings have been or are being instituted before or after the coming into force of this decree, the proceedings shall abate or be discharged and made void.”

The appellant therefore has no cause of action and the court has no jurisdiction to entertain the claim of the plaintiff/appellant. It would have been otherwise if the Military Governor had not authorised his dismissal. See Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572; Garba v. Federal Civil Service Commission and Anor. (1988) I NWLR (Pt. 71) 449.

SC.207/1988