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):