Forestry Research Institute Of Nigeria V. Mr. I. A. Enaifoghe Gold (2007)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

The case of the plaintiff, (who is now the respondent) in the High Court of Oyo State holden in Ibadan, is that he was employed as a clerical officer by the defendant (who is now the appellant), in 1974. He was appointed an Assistant Secretary in 1981, after obtaining a degree on study leave without pay between 1977 and 1980, and thereafter he was promoted to the post of Assistant Secretary 1 , a post in which his duties included disbursement of money. In 1986 he was given a query by the management of the defendant for alleged irregularities in the disbursement of cash advance granted to him. A sub-committee was set up to investigate the irregularities, and he made written memorandum, which the committee considered, and recommended that the plaintiff be warned. In 1987, a Ministerial Administrative Panel of Inquiry into the affairs of the defendant visited the defendant, and the 1986 irregularities were again raised before the panel and the plaintiff was invited again to defend himself, and he submitted a written memorandum to the allegations against him for which he had already been punished in 1986. At the end of the investigation the plaintiff was dismissed, vide a letter of 5th October, 1988, and according to him the dismissal was illegal, unlawful, unconstitutional, null and void. The plaintiff, stated that he had been searching for alternative job to mitigate the sufferings brought by his dismissal, but to no avail. The reliefs sought by the plaintiff were as follows:

“(i) Declaration that the purported letter of dismissal dated 5th October, 1988 written by the defendant to the plaintiff and the dismissal of the plaintiff emanating there from are null, void, unconstitutional and of no effect at all.

(ii) Declaration that the plaintiff is for all time and purposes and in spite of the letter of dismissal of 5th October, 1988 was Assistant Secretary 1 of the defendant as at October, 1988.

(iii) An order of this Honourable court reinstating the plaintiff as an Assistant Secretary 1 of the defendant.

(iv) Declaration that as such Assistant Secretary I of the defendant, the plaintiff is entitled to be paid all his salary or wages, allowances or any other entitlement made up as hereunder …..”

In its statement of defense the defendant denied some of the allegations above, but admitted some to the extent that the plaintiff was eventually dismissed, in 1988, but that the earlier investigation of 1986 was not conclusive, and so the plaintiffs promotion was deferred. In view of this, the plaintiff’s matter was investigated by a Ministerial Panel of Inquiry in 1987, as the first and only panel or body to sit on the allegation against the plaintiff. The defendant has stated that the plaintiff has since his dismissal been gainfully engaged in trading activities to wit he has bagged contracts of supply from the defendant. On completion of leadings, evidence were adduced, and they were evaluated by the learned trial Judge, who at the end of the day found in favour of the plaintiff, and granted the reliefs sought by the plaintiff. Dissatisfied with the judgment, the defendant appealed to the Court of Appeal on several grounds of appeal. The appeal was dismissed, and the defendant has appealed to this court again, and this time on three grounds of appeal. As is the practice in this court parties exchanged briefs of argument, to wit there was also an appellant’s reply brief which were adopted at the hearing of the appeal. Three issues for determination were raised in the appellant’s brief of argument, and the issues are:

“(i) Whether the respondent’s action was not statute-barred by the provisions of section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990 thereby ousting the jurisdiction of the court.

(ii) Whether the learned Justices of the Court of Appeal were right in holding that the respondent’s employment was statutorily protected and therefore entitled to an order of re-instatement.

(iii) Whether the learned Justices of the Court of Appeal were right when they held that there was no evidence to the contrary that the respondent could be disciplined by way of exhibit J not withstanding the previous disciplinary action taken by the appellant.”

In his own brief of argument, the respondent raised only two issues for determination, which are:”(a) Whether the learned Justices of the Court of Appeal were right in affirming the findings, and judgment of the trial court that the respondent’s employment was statutorily protected to justify the order of reinstatement of the respondent.

(b) Whether the Court of Appeal was right in holding that the respondent could not be punished twice for the same offence.”In his brief of argument, the respondent raised a preliminary objection on ground (i) of the grounds of appeal, which according to learned counsel raised an issue which was never raised before the lower court and no leave was sought by the appellant in order to raise same. According to learned counsel, the appellant was granted leave by the Court of Appeal to amend its notice of appeal on 23/2/2000, and in pursuant to the said leave, the appellant filed an amended notice of appeal on 29/2/2000, and no where in the appellant’s brief or the amended notice of appeal was the provision of section 2(a) of the Public Officers Protection Act, Cap. 379 Laws of Nigeria 1990 mentioned. Learned counsel set out cases where conditions that a party must satisfy before he can raise fresh point at the Supreme Court were laid down. These cases are Skenconsult ( Nig.) Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 SC 6; Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) p.212; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) p. 514;

and Agbaje v.Adigun (1993) 1 NWLR (Pt. 269) p. 261.

Learned counsel for the appellant in its appellant’s reply brief of argument submitted that the notice of preliminary objection to the first ground of appeal is misconceived and ought to be dismissed. He said the issue was raised in the court below with leave of the court and the learned Justices fully considered it but decided the issue against the appellant in the judgment. It is on record that the learned counsel for the appellant on 23/ 2/2000 moved a motion on notice dated 10/12/99, in which the following prayers were sought: