AUGUSTINE MAIKYO
V
1. W.E. ITODO
2. LOCAL GOVT. SERVICE
COMMISSION, BENUE STATE
3. J.S. EWACHE
4. AUDITOR GENERAL, LOCAL
GOVT. AUDIT, BENUE STATE
5. A.G. BENUE STATE
(2007) 7 NWLR (Pt. 1034) pages 443-465
Idris Legbo Kutigi J.S.C. presided while
Sunday Akinola J.S.C. read the leading judgment. Other Justices of the Supreme
Court on the panel include Aloysius Katsina-Alu, Niki Tobi and Dahiru Musdapher
JJ.S.C.
The Appellant (Maikyo) was a Senior
Personnel Officer on Grade Level 10 employed by the Local Government Service
Commission of Benue State; such being permanent employment and pensionable
one. While serving at Guma Local Govt Council between 1992 and 1993, he was
appointed to serve as the Secretary of the Yelwata Market Reorganization and
Construction Committee. In such capacity, he was granted an imprest of N92,
000.00 for a job to be carried out by the committee. He was later transferred
from Guma Local Govt to Buruku Local Govt where he was served with a letter of
termination dated 20th August 1996. The termination was later
changed to retirement. The retirement was as a result of the views of a
committee set up by the State Government in 1996 to look into the activities of
the Local Govts in the state. The committee indicted the appellant for failure
to rehabilitate the Yelwata Market for which the imprest of N92,000.00 was
granted. The appellant was asked to refund the money which he did. A Government
white paper was published in December 1996 which contained the Government’s
decisions and views on the committee’s report.
The appellant, being dissatisfied with the
decision of the Government to retire him sued and claimed that the decision of
his employer to retire him should be set aside and so should the order on him
to refund the N92,000.00. The appellant contended that the amount he received
was used for the purpose of the committee’s assignment (which was probably
another assignment different from the rehabilitation of the market). He also claimed
that on completion of the assignment, he returned the said sum in accordance
with the procedure of the Local Govt. Service Commission and was issued a
Treasury Receipt.
The major issue of the appellant in this
case is that he was not granted a fair hearing before he was retired from the
Service. He contended that since his appointment was one with statutory
clothing, it was wrong for the 2nd Respondent to retire him from
service without giving him a hearing in respect of the allegation against him.
On the other hand, the Respondents contended that since the investigation was
conducted solely on documents and not on oral evidence, the appellant was not
denied fair hearing.
By way of evidence, it was made clear that
the decision to retire the appellant was based on a directive from the then
Military Administrator of the State pursuant to the powers conferred on him by section 1 (1) of the Public Officers (Special Provisions) Act
Cap. 381 LFN 1990. The trial court dismissed the action.
Dissatisfied with the decision, the appellant, Augustine Maikyo, appealed to the Court of Appeal
and the appeal was dismissed. The appellant further appealed to the Supreme
Court where the appeal was once again dismissed.
It was also held that the burden is on the party alleging breach of a fair hearing in a case to prove the breach and he must
do so in the light of the facts of the case. This is because only the facts of
a case donate acts that constitute non-compliance with the principle of fair
hearing.
With regard to the N92,000.00 he allegedly
spent on a project different from that for which the money was earmarked, the court held that there is a presumption to the effect that the money he
collected was to be spent on a job he was to carry out and not for a job he had
carried out on behalf of his employer.
Another contention of the appellant that the disciplinary action
taken against him should not have been embarked upon until after his trial by a
competent court since the allegation made against him is criminal in nature was held untenable. This is because what the appropriate
authority needed to ascertain against an officer before taking necessary steps
under section 1 (1) of the Act
include showing that the action to be taken would facilitate improvement in the
organization or that the general conduct of the public officer in relation to
the performance of his duties has been such that his further or continued
employment would not be in the interest of the public. This was covered in the
instant case.
The appeal was therefore dismissed and no
order was made as to costs.
Of the various issues which arose in this
matter, the issue of ouster clauses seems to be somewhat more appealing to me
and central to the matter.
First off, an ouster clause has been
defined as a clause that seeks to exclude the jurisdiction of the court. Such a clause gives the parties involved the allowance to settle their issue quickly
and amicably. An example is an arbitration clause. From the above, my
understanding of what an ouster clause means is that it is a clause that is
aimed at stripping the courts of any power they might have had over the matter
had the clause not been added to the agreement or legislation or any document
in issue. There are however different
rules or systems that seek to limit or allow such clauses.
In the instant case, the Supreme Court held
that the attitude of the courts to ouster provisions is that they are regarded
as aberrations, outrageous provisions and should be treated with extreme
caution since they are regarded as an unwarranted affront and unnecessary
challenge to the jurisdiction of the courts which the courts guard jealously.
As protected by the Constitution of the Federal Republic of Nigeria, 1999 as amended¸
everyone has the right of access to the courts. Where a person’s right of access to court is taken away or
restricted by any means, the language of such provision is usually construed strictly. This means that the words used in such provisions are given the
strictest meaning and the language of such provisions will not be extended
beyond its least burdensome meaning unless clear words are used to justify such
extension. Thus, words used in an ouster clause are given their strictest
meanings to ensure everything is done in compliance with such provision and no
miscarriage of justice is wrought. Where the court finds there is a failure to
comply strictly, such an act purported to be done under the Act/Legislation is
ultra vires and of no effect. See INAKOJU
v ADELEKE (2007) 4 NWLR (Pt 1025) 423.
Section
3 (3) of the Public
Officers (Special Provisions) Act Cap. 381 LFN 1990 ousts the jurisdiction
of the court in respect of acts done under the Act. It creates an ouster clause
in that the rights of an aggrieved person to challenge actions taken away by
the provision.
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