J. Ayorinde Martins V. Federal Administrator General (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J 

This appeal is from the order made by Onyeama, J., on 24th October, 1960, dismissing the claim in Suit No. 346/1960 of the High Court, Lagos.

The claim is, briefly, for a declaration that the notice of 11th December, 1956, “purporting” to have been given under s. 9(1) of the Pensions Act, 1951, for the retirement of the plaintiff from the public service, was invalid and his compulsory retirement wrongful. The writ of summons was issued on the 27th September, 1960, and was returnable on the 24th October, 1960. On the 13th October, 1960, Crown Counsel filed a notice of motion, headed with the words “Application under Order XXVIII, rule 1, of the Supreme Court Rules”, that the Court will be moved for:–

“an order that the above mentioned suit be dismissed without any answer upon questions of fact, on the ground that the plaintiff, being a public servant held his office during the pleasure of the Crown and accordingly has no remedy for compulsory retirement.”

The affidavit in support states that the defendants have a good legal defence, which is set out in the notice of motion.

On the 24th October, 1960, when the parties appeared, Counsel for the defendants moved under the said rule, and argued that the plaintiff had no right to a pension, and held office at the pleasure of the Crown. Counsel for the plaintiff argued that dismissal and compulsory retirement were different in legal effect; he did not dispute that the plaintiff held office at the pleasure of the Crown; and he cited Dunn v. The Queen, (1896) 1 Q.B., 116 (a case of dismissal, which decided that, except in special cases where it is otherwise provided by law, servants of the Crown hold their offices during the pleasure of the Crown) and Wilkinson v. Barking Corporation, (1947) 1 K.B. 821 (which turned on the meaning of s. 35 of the Local Government Superannuation Act, 1937, where certain points were agreed to be tried first as preliminary points of law). The notes of the arguments are very meagre in the present case, and it is not possible to tell why those cases were cited. In the former of those cases it appears that there had been a trial, and in the latter pleadings followed by an agreement as aforesaid.

The decision of the learned Judge reads as follows:–

“Once it is conceded that the applicant held his office at the pleasure of the Crown it appears to me that there is no cause of action disclosed. The Crown may terminate its servants’ services in any way and at any time without thereby laying itself open to Court action; the effect of the declaration sought (if it was granted) would be that the plaintiff was entitled to remain in Crown service; there can be no declaratory judgment where there is no right.

“In my view the application should be granted and the claim dismissed. See Sunmola v. Attorney General LD/260/1955.

“Order accordingly.

“Claim dismissed.”

(In the argument on appeal neither side referred to Sunmola v. Attorney-General, of which nothing is known).

The grounds of appeal, are, briefly, that the learned Judge confused the present case, which was one of compulsory retirement under s. 9 of the Pensions Act, with a case of dismissal, in regard to which the power to dismiss at any time and without compensation is preserved in s. 6 of that Act.

At the hearing reference was made, on the plaintiff’s behalf, to Dyson v. Attorney-General, (1911) 1 K.B. 410, and on the defendants’ behalf to the notice of motion under Order. XXVIII, r. 1, and the affidavit in support, and to the admitted fact that the plaintiff held office at the pleasure of the Crown.

The short point for decision is whether, having regard to the fact that the defendants moved the Court under Order. XXVIII, r. 1, solely and expressly, it was competent to the Court to dismiss the claim at the stage reached in the proceedings. It will be useful to quote the whole of Order XXVIII; it reads:–

“1.Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plain-tiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this de-fence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

2.For the purposes of such application, 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.

3.The court, on hearing the application, shall either dismiss the suit or order the defendant to answer the plaintiffs allegations of fact, and shall make such order as to costs as shall be just.”

It is plain that those rules contemplate that the plaintiff has made allegations of fact, and the defendant raises a defence in law or equity that, even though the facts alleged were to be taken as true, the plaintiff cannot have judgment, and he, the defendant, should not be required to answer upon the facts. In other schemes of procedure, the defendant puts in his defence and includes that objection in it; and then the parties agree to have that objection heard first, or it is so ordered. In the rules quoted above, the defendant can move the court, before putting in his statement of defence, in the hope that he may be saved the trouble of answering on the facts. But, under either scheme, there has been a statement of the facts on which the plaintiff relies for his claim. If a defendant chooses to move under Order XXVIII, rule 1, the Court cannot deal with such a motion without first giving the plaintiff an opportunity of making his allegations of fact in support of his claim. In the present case, the defendant moved under that rule, but the claim was dismi-sed without the plaintiff being given that opportunity, so the order of dismis-sal of the suit was a mistake.

Dyson v. Attorney-General (supra), which was cited before us, is a mine of information and guidance. Here it is enough to note that a statement of claim had been delivered before the summons was taken out under O. 25, r. 4, of the English Supreme Court Rules, to strike out the statement of claim as disclosing no reasonable cause of action. Our Order seems to correspond to that Order 25, and the White Book can be consulted for guidance in various respects.

It remains to say that this judgment does not express any opinion on the claim of the plaintiff, or on any other aspect of the case: it is strictly confined to consideration of the meaning of Order XXVIII, under which the Court below was moved to dismiss the suit.

The order of dismissal made on the 24th October, 1960, is set aside with costs of appeal to the plaintiff assessed at twenty-five guineas, the costs in the Court below being left to be decided there as may be just hereafter.

Other Citation: (1962) LCN/0970(SC)