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.