Permanent Secretary, Ministry Of Works, Kwara State & Anor V. S. Balogun (1975) LLJR-SC

Permanent Secretary, Ministry Of Works, Kwara State & Anor V. S. Balogun (1975)

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G. B. A. COKER, J.S.C. 

The issues raised on this appeal are of exceptional importance for although they were based substantially on the pleas of res judicata and limitation, they concern as well the consequential orders to be made after these issues shall have been disposed of.

The plaintiff, now respondent, had sued the 1st defendant and the Permanent Secretry, Ministry of Works, etc., Kwara State, to set aside a Certificate of Occupancy in the possession of the 1st defendant and issued to him by the 2nd defendant, i.e. the Permanent Secretary, on account of the fraud or misrepresentation of the 1st defendant to the 2nd defendant at the time of obtaining the grant. At the trial in the High Court, Lokoja, the defendants resisted the claim of the plaintiff on two grounds, in limine, as follows:-
“(i) res judicata, as the matters sought to be canvassed in the case had been so adjudicated upon in a previous case between the plaintiff and the 1st defendant;

(ii)  limitation, as the action of the 2nd defendant complained about took place on the 16th October, 1967 (when he granted the Certificate to the 1st defendant) and the present proceedings were not commenced until the 16th June, 1969.  So Section 2(a) of the Public Officers Protection Law, Cap. 111 was invoked.

The learned trial Judge upheld the plea of estoppel by res judicata and struck out the plaintiff’s case as against the 1st defendant leaving only the 2nd defendant, i.e. the Permanent Secretary. The learned trial Judge then overruled the plea of time-bar by virtue of the Public Officers Protection Law, proceeded with the case as against the Permanent Secretary only and at the end of the day gave judgment in favour of the plaintiff setting aside the Certificate of Occupancy which was at all material times claimed by and in the possession of the 1st defendant.

Both defendants have now appealed to this Court against the judgment and had argued that the plea of time-bar against the 2nd defendant should have been upheld and that in any case the plaintiff could not, at least in the present proceedings, defeat the plea of res judicata by adding a nominal party to the proceedings. The argument was sternly resisted by learned counsel for the plaintiff but we are convinced that the contention of the defendants is well founded. We do not agree with the learned trial Judge that the plea of time-bar did not succeed and we point that he was in error in basing his ruling on its inapplicability on an issue which was not pleaded by the parties.

But apart from this even if the plea is not sustained, after the 1st defendant was dismissed from the action the action as against the 2nd defendant only became improperly constituted and should at that stage have been struck out.  The learned trial Judge did not do this and he had proceeded erroneously to give judgment against the 1st defendant who then had no opportunity of defending his title to and possession of the Certificate of Occupancy. For these reasons at least we are satisfied that the judgment must not be allowed to stand.

The appeals succeed and they are allowed. The judgment of the High Court, Lokoja in Suit No. KWS/11/69, including the order for costs, is set aside and it is ordered that the plaintiff’s case be dismissed against both defendants. This shall be the judgment of the Court. The plaintiff shall pay to each of the defendants the costs of these proceedings fixed in this Court at N161 and in the court below at N50.

Other Citation: (1975) LCN/2025(SC)