Ex Captain Charles Ekeagwu V. The Nigerian Army & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
The appellant as plaintiff sued the respondents as defendants in the Federal High Court, Abuja claiming the following reliefs:
(1) A declaration that the compulsory retirement of the plaintiff by the 1st defendant through a letter (ref. NA/278/1/A) dated 18/6/01 is illegal, null and void, as it was based on a criterium that never existed.
(2) An order reinstating the plaintiff as a Captain of the Nigerian Army and directing an accelerated promotion of the plaintiff to the rank of a full Colonel or any other rank that he would have attained if the 1st defendant had not stagnated his growth in the Nigerian Army.
Alternatively:
N130,000,000.00 (One hundred and thirty million Naira) being general damages against the defendants for loss of expectation in the plaintiff’s chosen career as a result of the illegal action of the defendants, and for the trauma and psychological torture suffered by the plaintiff as a result of the illegal action of the defendants.
(3) N10,000,000:00 (Ten million Naira) being cost of all legal services and actions taken by the plaintiff from 1990 till date.”
Pleadings passed through the parties. The case proceeded to trial at the end of which the learned trial Judge, the Hon. Justice S. J. Adah upheld the plea of estoppel per rem Judicatam. The concluding part of the judgment reads as follows:
“… This no doubt has effectively precluded this plaintiff from vexing the defendants twice on the same issue. I hold therefore that the plea of res judicata set up by the defendants succeeds. The action is therefore dismissed.”
This judgment did not go down well with the appellant and so he appealed to this court. On 15/3/05 we granted the appellant leave to file an amended notice of appeal and amended appellant’s brief of argument. They were both filed on 16/3/05.
The appellant filed five grounds of appeal. They are reproduced without their particulars.
“Ground 1
The learned trial court erred in law by failing to distinguish the difference between the material issue before him – compulsory retirement and the other dissimilar issues of dismissal canvassed in the earlier suit No. FHC/L/CS/492/98 and thereby ran into wrong conclusion that one acted as estoppel against the other.
Ground 2
The learned trial Judge was in error when he wrongly applied the principle of res judicata against the appellant’s action whereas the material contradictions and procedure for such application were totally absent.
Ground 3
The learned trial Judge misdirected himself when he believed, accepted and acted on the erroneous view of DW1 that exhibits ‘7’ and ‘8’ were issued in compliance with the order of the Federal High Court in Suit No. FHC/L/CS/492/98 (exhibit ‘6’).
Ground 4
The weight and nature of the evidence before the court, were too weak to support the judgment of the trial court.”
In compliance with the rules of this court briefs of argument were filed and exchanged by the parties. The appellant distilled two issues for the determination of this appeal. They are:
“Issue 1
Whether the judgment in suit No. FHC/L/CS/492/98 created an estoppel per rem judicatam against the appellant, as to deny him the opportunity to challenge his compulsory retirement in suit No. FHC/ABJ/CS/286/01.
Issue 2
Whether the Hon. trial court was right in dismissing the appellant’s action considering the totality of evidence before the court.”
The respondents filed a joint brief of argument on 31/3/05. Two issues were formulated for determination of this appeal. They are:
“Issue 1
Whether the honourable trial court in the suit No. FHC/ABJ/CS/286/01 was right in holding that the judgment in the suit No. FHC/L/CS/492/98 constituted estoppel per rem judicatam against the appellant’s claim, having regard to the facts of the case and the totality of the evidence before the court.
Issue 2
Whether the learned trial Judge made a proper evaluation of the totality of the evidence before the court in dismissing the appellant’s action.”
At the hearing of the appeal on 18/10/05 learned counsel for the appellant, Mr. Chukwuma-Machukwu Ume adopted his amended brief of argument and urged us to allow the appeal.
Learned counsel for the respondents Mr. Kolapo Adebale adopted his brief of argument and urged us to dismiss the appeal as it lacks merit.
The Facts
The appellant was commissioned into the Nigerian Army in 1990, and rose to the rank of Captain. In 1990 he was accused of fraud and taken before a Special Military Tribunal for the recovery of public property. He was acquitted and discharged on 30/7/93 and redeployed to the Central Finance Department of the Army in Apapa, Lagos. Thereafter he was dismissed by the Army Council by a letter dated the 3rd of October 1994. He sued the respondents in suit No. FHC/ABJ/L/CS/492/98 for wrongful dismissal, reinstatement, payment of entitlements and N10,000,000 (Ten million Naira) as general damages. The suit was undefended. Hon. Justice E. O. Sanyaolu of the Federal High Court in a considered judgment delivered on the 28th day of September, 1999 declared the dismissal null and void and of no effect. The order for reinstatement and the claim for general damages were refused. Finally the trial Judge ordered that the appellant/plaintiff be paid all his entitlements to date.
By a letter ref. No: NA/226/MS dated 3/7/01, twenty two months after the judgment of Hon. Justice E. O. Sanyaolu the 1st respondent compulsorily retired the appellant.
Aggrieved the appellant filed the present suit challenging his compulsory retirement and claiming as follows:
“1. A declaration that the compulsory retirement of the plaintiff by the 1st defendant through a letter (ref. NA/278/1/A dated 18/6/01 is illegal, null and void, as it was based on a criterium that never existed.
- An order reinstating the plaintiff as a Captain of the Nigerian Army and directing an accelerated promotion of the plaintiff to the rank of a full Colonel or any other rank that he would have attained if the 1st defendant had not stagnated his growth in the Nigerian Army.”
Alternatively
N130,000,000.00 (One hundred and thirty million Naira) being general damages against the defendants for loss of expectation in the plaintiff’s chosen career as a result of the illegal action of the defendant, and for the trauma and psychological torture suffered by the plaintiff as a result of the illegal action of the defendants.
- N10,000,000.00 (Ten million Naira) being cost of all legal services and actions taken by the plaintiff from 1990 till date.”
To my mind the five issues for determination in this appeal are:
- Whether the judgment in suit No. FHC/L/CS/492/98 constituted an estoppel per rem judicatam to bar the appellant from challenging his compulsory retirement in suit No. FHC/ABJ/CS/286/01.
- Whether the appellant can challenge his compulsory retirement after accepting his entitlements.
Issue No.1
Learned counsel for the appellant argued that the judgment in suit No. FHC/L/492/98 for wrongful dismissal does not affect the right of the appellant to sue subsequently for compulsory retirement in suit No. FHC/ABJ/CS/286/01.
Relying on Ejitagha v. P.H.M.B. (1995) 2 NWLR (Pt. 376) P. 189; Ihenacho Nwaneri & 2 Ors. v. Nnadikwe Oriuwa & Ors. (1959) 4 FSC p.132; (1959) SCNLR 316.
He submitted that the plea of estoppel per rem judicatam ought not to have been sustained.
Concluding his submissions he argued that the trial Judge was wrong to consider the plea of res judicata as it can only be sustained if pleaded, observing that in this case it was not pleaded. Reliance was placed on-
Obanye v. Okwunwa (1930) 10 NLR p. 8;
Dedeke v. Williams (1944) 10 WACA p. 164;
Clay Industries v. Aina (1997) 8 NWLR (Pt. 516) 208; (1997) 7 SCNJ p. 501.
In his own address learned counsel for the respondents submitted that the plea of estoppel was properly raised and sustained since the subject matter of the suit, the parties, the issues and the reliefs sought in the previous case and the instant case are the same.
Reliance was placed on: Ikeni v. Efamo (2001) 10 NWLR (Pt. 720) 1; (2001) FWLR (Pt. 55) p. 411; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298; (2000) FWLR (Pt. 8) p. 1271.
Finally he submitted that it was no longer necessary to plead estoppel in any particular form.
Reliance was placed on Ito & Ors. v. Ekpe (2000) FWLR (Pt. 6) p. 927; (2000) 3 NWLR (Pt. 650) 678.
The defence of estoppel per rem judicatam cannot succeed unless it is shown to the satisfaction of the court that the parties, issues, and subject matter were the same in the previous case as those in the case which the plea is raised.
See Chinwendu v. Mbamali (1980) 3-4 SC p. 11;
Ladimeji v. Salami (1998) 5 NWLR (Pt. 548) p. 1.
The plea of the doctrine of estoppel per rem judicatam, if successful operates not only against the party whom it affects but also against the jurisdiction of the court. This is so because the party affected is estopped per rem judicatam from bringing a fresh action before the court and the court no longer has jurisdiction to hear and determine the case.
See Bassil v. Honger (1954) 14 WACA p. 569;
Afolabi v. Gov. of Osun State (2003) 13 NWLR (Pt. 836) p.119.
Public interest demands that there should be an end to litigation, consequently where a cause has been litigated upon and decided by a court of competent jurisdiction it cannot be the subject of subsequent litigation between the same parties.
For the plea of estoppel per rem judicatam to succeed, the party relying on it must be able to show that:
(a) the parties or their privies involved in both the previous and present proceedings are the same;
(b) the claim or issue in dispute in both proceedings are the same;
(c) the res or the subject matter of the litigation in the two cases is the same;
(d) the decision relied upon to support the plea is valid, subsisting and final; and
(e) the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.
See Achiakpa v. Nduka (2001) 14 NWLR (Pt. 734) p. 623;
Eko v. Ugwuoma (1940) 6 WACA p. 206;
Lateju v. Iyanda (1959) SCNLR p. 634.
All the conditions listed above must be established before the plea of estoppel per rem judicatam is sustained.
My Lords, (b) and (c) are not the same in the previous suit:
FHC/ABJ/L/CS/492/98 and this suit: FHC/ABJ/CS/286/01 – the suit appealed.
The earlier case was for unlawful dismissal while the latter suit is for compulsory retirement.
Dismissal or compulsory retirement of an employee by the employer translates into bringing the employment to an end, but there is a clear difference.
Dismissal is punitive, and usually without any terminal benefits to the employee. The employee stands disgraced and held in ignominy. On the other hand where an employee is compulsorily retired he receives his terminal benefits under the contract of employment.
The judgment in suit No: FHC/CS/492/98 does not constitute estoppel per rem judicatam against the appellant’s claim for compulsory retirement in suit No. FHC/ABJ/CS/286/01.
The position of the Law for a long time was that before the plea of estoppel per rem judicatam is considered it must be pleaded.
See: Dedeke v. Williams (1944) 10 WACA p. 164.
The reason is obvious. It was to enable the adverse party have good notice of the case he is up against. It cuts out surprises completely.
In Ito & Ors. v. Ekpe (2000) 3 NWLR (Pt. 650) 208; (2000) 2 SC p. 98, the Supreme Court stated the modern position to be that it was no longer necessary to plead estoppel in any particular form so long as the matter constituting the estoppel are stated in such a manner to show that the party pleading relies upon it as a defence or an answer.
Estoppel per rem judicatam was not pleaded in the court below, but both sides were given ample opportunity of being heard on it. No counsel complained. They addressed the court on it and the trial judge considered the arguments and made a finding. It is not a case of the trial judge ex proprio motu holding that they were estopped. The plea of estoppel rem judicatam was properly raised in the court below notwithstanding the fact that it was not pleaded.
ISSUE NO.2
In this appeal the appellant seeks the following reliefs:
“1. An order setting aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/286/01 delivered by Hon. Justice S. I. Adah on 8/1/2004.
- That the compulsory retirement of the Appellant by the 1st Respondent through its letter (ref: NA/278/1/A dated 18/6/01 is illegal, null and void.
(b) That grounds or reasons for the purported compulsory retirement of the Appellant as contained in exhibits 7 and 8 are unfounded, of no effect and void.
(c) An order of the court quashing the compulsory retirement of the appellant.
(d) An order that the 1st Respondent or any body acting on its behalf should not retire the Appellant for such reason (or among other things) as being above the mandatory age required of a Captain, or any other rank in the Nigerian Army as contained in the 1st Respondent’s Regulation (Terms and Conditions of Service, Nigerian Army Officers 1984), since his attaining the age above these ranks resulted not through his (Appellant’s) fault but through the fault of the 1st Respondent, the Nigerian Army.”
Learned counsel for the appellant observed that the salary of the appellant from 1994 to 1999 was paid but he did not receive his gratuity or pension. He referred to-
MRS. F. O. Balogun v. University of Abuja 2002 40 WRN p. 128.
On the other side of the fence learned counsel for the respondent observed that the appellant had been paid all his entitlements and should not be allowed to relitigate the same issues in the court. Reliance was placed on –
Akafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) p.659.
On page 82 of the Record of Appeal is a letter from the 1st respondent and it states inter alia regarding the appellant:
“HQ NAFC to pay all their entitlements from the date stopped up to date they are to be retired as in Annex A.”
Annexure A contains the names of six officers. The appellant is listed as the 6th and he is listed as to be retired on 28/9/99.
In the judgment of the Court below the learned trial Judge stated as follows:
“When cross-examined the plaintiff admitted suing the parties in this suit and in the earlier suit. That he said in Exhibit 6 because he was dismissed and he sued in the instant case because he was retired. He admitted that he was paid some money when he was retired but said what was paid to him was the arrears of salary. The plaintiff closed his case after his evidence.”
My lords, it is clear that the appellant received some money after he was compulsorily retired. The law is well settled that where an employee accepts salary or payment after employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined.
Acceptance of payment by the appellant has rendered the determination mutual. See-
DR. O. Ajolore v. Kwara State College of Technology (1986) 2 SC p.374.
In the circumstances this appeal fails and it is hereby dismissed. There shall be no order as to costs.
Other Citations: (2006)LCN/2070(CA)
