Military Administrator Of Benue State V. Ulegede (2001)
LAWGLOBAL HUB Lead Judgment Report
AYOOLA, J.S.C.
In the High Court of Benue State, O. P. Ulegede, Esq and A. U. Abah, Esq, respectively the first and second respondents in this appeal, who were legal practitioners employed at the material time, respectively, as Chief Legal Officer and Principal Legal Officer in the Ministry of Justice of the Benue State (“the State”) sued the 8 appellants, the Military Administrator of the State and other agencies and functionaries of the State, claiming in the main, a declaration that their several “purported retirement” were “premature, malafide, improper, unconstitutional, null and void.”; a declaration that the purported retirement of the respondents was not done or purported to be done under Decree No. 17 of 1984 or other law applicable to the contract of employment of the respondents; some consequential reliefs; and, certain sums of money which were alleged to have accrued and were due and payable to them.
Initially, the case came before Idoko, (C.J., Benue State). Upon a point being taken in limine to the jurisdiction of the High Court to try the suit Idoko, C. J., struck out the declaratory reliefs sought on the ground that by virtue of the Public Officers (Special Provisions) Decree No. 17 of 1984 (Cap 381, LFN 1990) the High Court had no jurisdiction to grant those declarations. The respondents appealed to the Court of Appeal which allowed the appeal, set aside the decision of Idoko, C. J., and ordered that the case should proceed before another Judge upon a statement of defence to be filed by the present appellants (then respondents).
The rehearing came before Ikongbe, J., (as he then was). At the rehearing the parties amended their pleadings. In paragraph 41 of their amended statement of claim the respondents averred that:
” … after reaping the benefits of their hard work and excellent job performance, the 1st defendant on the instigation of the 2nd defendant decided to throw out the plaintiffs to pave the way for the 2nd defendant to come to Ministry of Justice as an Attorney- General in an atmosphere of intimidation, abuse of powers (sic), harassment and the creation of unconducive atmosphere for the performance of duties.”
By their joint amended statement of defence the appellants did not admit the above paragraph 41. They specifically denied paragraph 41 and went further in relation thereto, to aver as follows in their paragraph 34:
‘The defendants further aver in answer to paragraph 41 of the claim that the averment apart from being unethical offends Order 25 rule 20 of the High Court rules (sic) and the defendant will at the trial urge the court to strike same out for being embarrassing or scandalous as well as an abuse of the courts (sic) process,”
The case of the respondents as summed up by Ikongbe, J., (as he then was) was that by the terms of their employment each of them was entitled to continue in service until he attained the retirement age of 60 years or his employment was terminated by three months’ notice or three months’ salary in lieu thereof; and, that for “no just cause, however, and in utter disregard of the terms and conditions of their employment and of the rules of natural justice relating to fair hearing, they were sent on compulsory and premature retirement without any notice or salary in lieu.”
The learned trial Judge summed up part of the appellants’ case at the trial thus:
“The defendants do not deny that the plaintiffs were sent on compulsory and premature retirement without being given a hearing and without any notice. Their defence is that their retirement had been effected by the 1st defendant in exercise of his powers to do so under the relevant laws which preclude the court from inquiring into any aspect of his action in that regard.”
Ikongbe, J., (as he then was), found as a fact that the respondents knew that their removal was at a time when the 1st defendant was carrying out a general purge of the public service, and that at the time of the ruling of the Court of Appeal, those facts had not come out, and the averment in the amended statement of claim that it was the first appellant that removed the respondents had not been made. Being of the view that fresh evidence had come before him which was not placed before the Court of Appeal when that court gave its judgment in the appeal from Idoko, C. J’s ruling, he rejected the contention that the judgment of the Court of Appeal had settled conclusively the question of the jurisdiction of the High Court in favour of the respondents. In the result he proceeded to consider the question afresh and came to the conclusion that he had no jurisdiction to grant the declaratory reliefs sought by virtue of subsection 3 of section 3 of the Public Officers (Special Provisions) Act, Cap 381, LFN 1990 (“the Act”). Having considered the evidence in regard to the remaining part of the claim, he dismissed the respondents’ case.
On the respondents’ appeal from that decision to the Court of Appeal, the respondents put at the forefront of their appeal the question whether Ikongbe, J., was right in re-opening the issue of the jurisdiction of the High Court to entertain the suit. The Court of Appeal answered that question in the negative. Akpabio, JCA, who delivered the leading judgment of that court with which Muhammad and Umoren, JJ.C.A, agreed, held that the question whether the 1st appellant in this appeal had authorised or directed the 2nd appellant, herein, the writer of the letter of retirement, to retire the respondents so as to bring such retirement under the provisions of the Act had become res judicata by virtue of the decision of the Court of Appeal in the judgment of that court, Exhibit 4. The court below resolved all the other issues in the case in favour of the respondents. In the event, that court allowed the respondents’ appeal, set aside the judgment of the High Court and granted the declarations sort by the respondents. In addition, it gave judgment in their favour on the monetary claims and ordered that they be reabsorbed into the service of the State with payment of their emoluments from the date of the purported retirement to the date of the judgment of the court below.
The present appeal by the defendants in the High Court (“the appellants”) is from that decision of the court below. Of the four issues for determination raised in the appellants’ brief, it is expedient to deal, first, with the third and most important issue which was put thus: “Whether the learned Justices of the Court of Appeal were right in holding that the question whether 1st appellant had authorized Engr. S. N. Torsabo to retire the respondents had become res judicata.” Counsel for the appellants acknowledged that the determination of that issue revolved on an interpretation of the judgment of the court below, contained in Exhibit 4. In his understanding of that judgment, what the court below decided was “that the trial court was wrong in striking out the relevant claim because at that stage evidence had not been led to show that Engr. S. N. Torsabo had been authorised by the appellant to retire the respondents.” The appellants put their case on this appeal thus: Estoppel was not created by the decision of the court below because the parties were at liberty to lead evidence to establish the afresh facts at the resumed trial. The response of the respondents to this issue, put rather more clearly and succinctly in the brief of the second respondent, was that since the appellants had raised the question whether the respondents had been retired in pursuance of the provisions of the Act and had distinctly put that question in issue and had failed, he could not raise that issue again. Reliance was put on the case of F.C.D.A v. Sule (1994)13 S C.NJ 71; (1994) 3 NWLR (Part 332) 257.
It may well be noted that none of the parties raised the issue of res judicata at the trial. It was the trial Judge who by himself invited the parties to address him on the question whether the question of his jurisdiction to entertain the suit was still available for determination. What appears significant is that the trial Judge himself acknowledged that the question of the jurisdiction of the High Court to entertain the suit had earlier been raised and dealt with by the High Court and the Court of Appeal. The question, therefore, is whether where an issue has been raised and conclusively determined at an earlier stage of a proceeding, the same issue is available for fresh consideration and determination at a later stage. The emphasis is on the conclusiveness of the earlier determination. I venture to think that a decision is conclusive as to what it determines when it can only be set aside on an appeal being brought for that purpose. This is why there has always been a distinction between orders which can be reviewed by the court which made them and those which it has no power to review or set aside. These matters and the cases related to them are discussed to some extent by this court in Skenconsult (Nig.) Ltd. v. Ukey (1981) 6 SC 1, 12 NSCC 1. In the more recent decision of this court in FCDA v. Sule (1994) 3 SCNJ 71; (1994) 3 NWLR (Pt 332) 257, the appellant had raised the issue of the jurisdiction of the court to entertain an action on the ground that the jurisdiction of the courts were ousted by the provisions of the Act in limine. The trial court ruled against him. He did not appeal. At a later stage of the proceedings, in the course of the final address, he raised the same point. On the matter coming before this court, Ogundare, JSC, said, at pages 278-9 (NWLR):
“The defence counsel however, in her address … fell back on materials used in support of the application to dismiss the action in limine …. The defendant’s application to dismiss the action in limine was refused by the learned trial Chief Judge and there was no appeal against that ruling. In his ruling on that preliminary application the learned trial Chief Judge had held at pages 50 – 51 of the record:
‘I therefore hold the view the decision to terminate plaintiff is that of the Chairman FCDA under powers given to FCDA in Decree 6 of 1976 and as Decree 6 of 1976 has not ousted Chief fudge’s jurisdiction, I hold that this court has jurisdiction to entertain the suit.’
This finding remains subsisting until it is set aside. See – Rossek & Ors v. A. C. B. Ltd. (1993) 8 NWLR (Pt. 312) 382. As that finding has not been set aside at the time the final addresses were made in this case, it was not open, in my respectful view, for the defence to once again contend that the plaintiff was removed from office by the Minister.”
In this case, the relevant judgment to look at is the judgment of the court below delivered on 22nd February, 1996 in the appeal from the decision of Idoko, CJ, declining jurisdiction. Of the two issues on that appeal as formulated by the Court of Appeal the only one directly relevant for the purpose of this appeal is the second issue formulated thus:
“Whether the compulsory retirement of the appellants was made in compliance with the Public Officers (Special Provisions) Act Cap 381 Laws of the Federation of Nigeria to enjoy the protection of the ouster clause therein.”
The Court of Appeal ruled that it was not so made. Two grounds were given for that conclusion. One was that it had not been shown that the Military Administrator actually authorised the retirement of the respondents. The second, also given by Edozie, JCA, who delivered the leading judgment of the Court of Appeal, was that” it can hardly be said that from the letters of retirement addressed to the appellants or from the surrounding circumstances in the case as disclosed in the affidavit evidence of the parties that the Military Administrator believed or intended to act under the Act. ” It was on these alternative grounds that the Court of Appeal came to the conclusion that the jurisdiction of the court was not ousted.
Counsel for the appellants on this appeal had proceeded on the footing that the respondents having averred in their amended statement of claim that their retirement was at the instigation of the Military Administrator, the ground on which the Court of Appeal ruled ceased to hold. That, in my view, is a misconception for two reasons: First, when the question is whether a court can reconsider an issue it had conclusively pronounced upon and determined on a previous occasion at a later stage in the same proceedings, the primary question is not whether on the production of a better evidence it could come to a different conclusion, but whether it had the power even to re-open the issue. Secondly, in this case, the Court of Appeal gave two alternative reasons, whereas the only one the appellants have addressed on this appeal is the first of the two alternative reasons. The opinion of the Court of Appeal remains final and conclusive on both grounds.
In the decision which led to this appeal, the Court of Appeal held that “the learned trial Judge was in error to have re-opened the question of his jurisdiction under the Act when the said issue had been conclusively settled by the Court of Appeal judgment, which was still subsisting.” I feel no hesitation in agreeing that that was a correct conclusion.
The remaining issues can be disposed of shortly. The first two of these relate to the ground of appeal in the court below and what that court should have done in regard to those grounds which it found to have contained narrative or argumentative particulars and those in which he struck out the particulars. It is not necessary to set out those grounds since the issues concerning them can be disposed of without much ado. Where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complaint about its form becomes a technicality which does not occasion a miscarriage of justice and which ill-becomes a counsel to bring up at this level of appeal.
Although in this appeal counsel for the appellants argued that the Court of Appeal should have struck out the grounds that contained particulars that were argumentative or narrative, and those in which it had struck out the particulars, it has not been suggested that retaining those grounds had occasioned a miscarriage of justice. The appellants’ counsel must have overlooked the change in our appellate system by the introduction of the brief system. Appeals are now argued on issues distilled from the grounds of appeal and not on the grounds of appeal themselves. It follows that where the complaint is not that the issues do not flow from the grounds of appeal, any complaint about the form of the grounds of appeal is inconsequential.
Besides, in this case after looking at the grounds of appeal in question it is not at all difficult to conclude that the body of the grounds whose particulars were said to be narrative or argumentative and of those whose particulars have been struck out contained enough to convey the complaint of the respondents. The court below was right in not striking out those grounds.
The only remaining issue is whether by accepting three months salary paid to each of them the respondents are precluded from complaining about their retirement. This is an issue which can easily be disposed of on the authority of Adeniyi v. Governing Council of Yaba College of Technology (1993) 7 SCNJ (Pt. 11) 304; (1993) 6 NWLR (Part 300) 426. In that case Karibi -Whyte, JSC, delivering the leading judgment of this court said:
“The compulsory retirement of the appellant on grounds of misconduct under section 12(1) is void. It cannot be rendered valid because appellant had applied for benefits thereunder.”
The principle of that case applies with equal force to this case. There was nothing in the case to suggest that the respondents gave up their right of action by their conduct. Furthermore the case was not a case of mere breach of a contract of employment but one in which the retirement of the respondents was void because of non-compliance with the provisions of the statute which it was claimed, conferred power on the first appellant to retire them.
The conclusion that inexorably follows from all I have said is that there is no merit in this appeal. In the result I dismiss the appeal with N10,000 costs to the respondents.
SC.267/2000
