Teliat A. O. Sule V. Nigerian Cotton Board (1985) LLJR-SC

Teliat A. O. Sule V. Nigerian Cotton Board (1985)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C. 

The plaintiff/appellant joined the Nigerian Civil Service on the 7th July, 1944. He then served in the Department of Agriculture. Sometimes in 1949, he was transferred to the Department of Marketing and Export and in 1962 he was again transferred to the Nigerian Produce Marketing Company Ltd.

On the creation of the Nigerian Cotton Board-the defendant company-the plaintiff was again “deployed thereto and deemed to have been appointed by the defendant Board with effect from 1st day of April, 1977”. By letter No. NCTB/CSTP-387/31 of 11th April, 1979, tendered as Exhibit Q, the defendant company retired the plaintiff from the service of the Board with full benefits, and requested him “to vacate the Board’s quarters, after a period of one month’s grace”. Thereupon the plaintiff sued the defendant in the High Court of Lagos State claiming as follows:

The plaintiff’s Writ of Summons in this case was dated 10th July, 1979 and was expeditiously filed on the very same day 10-7-79. This date is important especially to the issue of the jurisdiction of the Lagos High Court to entertain some aspects of this case. Pleadings were ordered, filed and exchanged. The plaintiff’s case on his pleadings was as follows:

“A sum of N108,731 being damages suffered by the plaintiff as a result of his unlawful and wrongful retirement in Lagos from the service of the defendant Board as per the defendant’s letters of 11th April, 1979 and 17th May, 1979.

1. This his ‘Terms and Conditions of Service’ with the defendant/Board were governed by the Civil Service Rules, Regulations and relevant Circulars and Directives-paragraph 32 of the Statement of Claim refers.
2. That when he was retired by the defendant/Board, he was only 53 years of age-paragraph 33 of the Statement of Claim.
3. That by Circular No. 4/1978, tendered as Exhibit U, the compulsory retiring age of public officers was raised from 55 to 60 years-paragraph 34 of the Statement of Claim.
4. That by retiring him at the age of 53 years the defendant/ Board prevented him from earning his salary for the period 22nd March, 1979 to 9th December, 1985; (see paragraphs 35 and 36 of the Statement of Claim).
5. That he committed no offence to warrant his forced and/or wrongful and unlawful retirement; (paragraphs 37 and 40 of the Statement of Claim).
6. That the procedure for retirement under Section 9 of the Pensions Act, namely giving the retiring officer six months’ notice in writing was not complied with in his case; (paragraph 42 of the Statement of Claim).
7. That an essential part of the Terms and Conditions of Employment between the defendant/Board and its employees (including the plaintiff) stipulated voluntary retirement at the age of 45 years and compulsory retirement at the age of 60 years (paragraph 45 of the Statement of Claim).

This was the plaintiff’s case as pleaded.

What were the defendant’s answers to the vital averments of the plaintiff The defendant’s case on the pleadings was:

1. The plaintiff was transferred to the Headquarters of the Board at Funtua and ordered to vacate his quarters at No. 13A Dakar Road, Apapa for Alhaji Jimeta who was simultaneously with the plaintiff transferred from Funtua to Lagos-paragraph 6 of the Statement of Defence.
2. That in spite of several letters from the Board requesting the plaintiff to vacate the Board House at No. 13A Dakar Road, Apapa, the plaintiff obstinately refused to vacate-paragraphs 6, 7, 8 and 9 of the Statement of Defence.
3. That because of the behaviour of the plaintiff, the defendant suspended him from the service of the Board and in spite of his suspension the plaintiff still refused to vacate the Board’s quarters at No. 13A Dakar Road, Apapa as requested-paragraph 9 of the Statement of Defence.

Note-The letters exchanged between the plaintiff and the defendant/Board over his transfer to Funtua and the Board’s order to the plaintiff to vacate the quarters at No. 13A Dakar Road, Apapa were tendered as Exhibits E, F, G, H, J, and K. The Query which the defendant/Board issued to the plaintiff was tendered as Exhibit L and the Suspension Letter written to the plaintiff was tendered as Exhibit N. The Retirement Letter which formed the basis of this action was tendered as Exhibit Q.

The most important paragraph of the Statement of Defence which raises the central and vital issue in this case is paragraph 10. I reproduce this paragraph hereunder:

“10. In spite of his suspension the plaintiff refused to comply with the instructions of the defendant/Board and continued up to this date in occupation of the Dakar Road property. In the circumstances the defendant/Board decided on humanitarian grounds to terminate the services of the plaintiff by retiring him from the services of the Board with full benefits in lieu of outright dismissal without benefits.”

From the pleadings of the parties, the core of this case, the central issue is:

1. Could the plaintiff have been summarily dismissed by the Board

If on the evidence and finding of the trial judge the answer is yes; then another issue and a less difficult issue will arise:

Was the retirement of the plaintiff with full benefits rather than outright dismissal unlawful and wrongful

To my mind every other issue in this case, namely, whether or not:

1. The Terms and Conditions of Service of the plaintiff were governed by Civil Service Rules and Regulation or by the Board’s Terms and Conditions.
2. whether either of these Terms and Conditions of Service were in fact established by the evidence-all these fall into comparative insignificance.

At best such other issues will be merely peripheral. I will deal with the plaintiff’s claim first before turning to the defendant’s counter claim that is with the plaintiff’s appeal before dealing with the appeal on the counter claim.

Now what was the finding of the learned trial judge on the main issue-whether or not the plaintiff was guilty of conduct amounting to disobedience of lawful order and instruction and also insubordination I will hereunder reproduce the ipsissima verba of the learned trial judge:

“The plaintiff’s claim is for damages for wrongful and unlawful retirement from the service of the defendant/Board. The circumstances leading to the decision of the Board have been stated. The question that has to be answered is the question as to whether or not the Board was justified in dispensing with the service of the plaintiff in the manner it did. I do not think the Board was not justified. The plaintiff was posted to Funtua and directed to vacate his quarter in Lagos. He resumed duty in Funtua quite alright but failed to vacate the quarters for his successor in spite of warnings from the Board that disciplinary action would be taken against him. There is no doubt that the plaintiffs conduct amounted to disobedience of a lawful order or instruction and also insubordination. The Board was justified in dealing with him in the manner it did. To my mind the plaintiff should be grateful to the Board for not dismissing him summarily. He was however, retired with benefits. The plaintiff cannot justify his disobedience of the instructions given to him on the ground that he had no place to put his wife and children. I therefore hold that the plaintiff has failed to prove that his retirement was either wrongful or unlawful.”

On the above findings, the learned trial judge, Oshodi, J. rightly in my view, dismissed the plaintiff’s claim.

The plaintiff then appealed to the Court of Appeal, Lagos Division. Both in his original and further additional Grounds of Appeal, the plaintiff/appellant in the Court of Appeal concentrated his fire-power on error in law and mis-directions. The main thrust of his attack was that he was compulsorily retired at the age of 53 rather than 60 years and that that ipso facto was wrong. There was also the argument as to what Terms and Conditions of Service were applicable to the plaintiff/appellant-the Civil Service Rules and Regulations or the Board’s Terms and Conditions which had not been ratified My humble view is that these matters are at the best peripheral and at the worst wholly irrelevant to the fundamental and main issue. I cannot conceive of any “Terms and Conditions of Service” be it the Civil Service Conditions or the Board’s that will legalise disobedience to lawful order and instruction to tolerate insubordination. The plaintiff/appellant did not in the Court of Appeal focus attention on the main issue-whether from the evidence before him the learned trial judge was right in holding that he-the plaintiff-was guilty of disobedience to lawful order and instruction and thus guilty of insubordination. This is a question of fact and the findings of fact of the trial court on this issue of fact can only be upset on a ground of appeal on the fact, directly challenging such a finding. There was no such ground filed and argued in the Court of Appeal.

Therefore even if all the grounds urged in the court below were decided in favour of the plaintiff/appellant, his appeal would still have floundered on the rock and capsized in the sea of the plaintiff’s disobedience and insubordination. It will be an example of winning the battles but losing the war. As found by the trial court, the Board on the evidence before that court could have legally dismissed the plaintiff. Is it not a reductio ad absurdum to contend that a master who could not have lawfully dismissed his servant for disobedience and insubordination will be guilty of a wrongful act if he retired that same servant, (on the same facts of disobedience, etc.), on humanitarian grounds This is the absurd conclusion the plaintiff/appellant was asking the court below to arrive at. The Court of Appeal did not arrive at such a conclusion. It dismissed the plaintiff’s appeal.

The plaintiff has now appealed to this court asking that the decision of the court below dismissing his appeal be set aside and that judgment be entered in his favour as per his writ of summons and/or paragraph 48 of his Statement of Claim.

Four grounds of appeal were filed. Grounds 1 and 2 complain of error in law and misdirection. These grounds deal with Exhibit U, the Circular No. 4/1978 raising the compulsory retiring age from 55 years to 60 years and Exhibit A dealing with “Conditions of Service” of employees of the defendant/Board pursuant to Section 4(1) of the Commodity Boards Decree 1977. At page 4 of the plaintiff/appellant’s Brief, the relevant Questions for Determination were formulated as follows:

1. Whether Exhibit “U” which is Circular No. 4/1978 conveying Decision of the Federal Military Government that compulsory age of retirement should with effect from 1st April, 1978, be increased from 55 years to 60 years is applicable to the appellant as an officer in the Nigerian Cotton Board under the Federal Ministry of Agriculture
2. Whether it was wrongful and/or unlawful to retire the appellant prematurely at the age of 53 years thus preventing him to put in his services to the respondent up to the compulsory age of retirement at 60 years
3. If the answers to questions 1 and 2 above are in the affirmative, whether the appellant is entitled to claim all his entitlements by way of salary, leave entitlement, Gratuity and Pension due to him as if he had been in the service up to the compulsory retirement age of 60 years on 9th December, 1985

Are these the real issues in this appeal I do not think so. Whether the plaintiff was unlawfully or/and wrongfully retired or not must, to a very great extent, depend on the facts and circumstances of his case. The facts and circumstances established before the trial court were that the plaintiff flagrantly and continuously disobeyed a lawful order and instruction of the defendant/Board. He was guilty of disobedience and insubordination and could have been summarily dismissed but was merely retired instead, on compassionate grounds. The trial court so found. As long as this finding stands-that the plaintiff was compulsorily retired because of disobedience and insubordination, it will be a misconception to regard the plaintiff/appellant’s “Questions for Determination” as formulated at page 4 of his Brief as correct. The real issue in this appeal simply is-whether the plaintiff compulsorily retired at the age of 53 years because of his disobedience and insubordination can complain that such retirement was “unlawful and wrongful”. It is not whether the plaintiff who under the Circular No. 4/1978 (Exhibit U) should have retired at the age of 60 years but who was compulsorily retired at 53 years, for no just cause, could complain of unlawful and wrongful retirement.

From the way these two grounds (Grounds 1 and 2) were argued, it was also very clear that there was some misconception about the real issue in the plaintiff’s appeal. If the issues were whether a plaintiff whose conditions of service entitle him to retire at 60 years and who was compulsorily retired at 53 years was wrongly retired then there will be some need to explore the “Terms and Conditions” of the plaintiff’s service with the defendant/Board. But that happens not to be the issue. The main issue is the legal effect of the finding of the trial court that the plaintiff was guilty of conduct amounting to disobedience and insubordination. In my humble views that effect will be the same whether the plaintiff’s “Terms and Conditions” of Service entitle him to retire at 45, 53 or 60 years. The compulsory retiring age, whether it is 53 or 60 years, will not affect the legal effect of disobedience to lawful orders in a contract of employment. Grounds 1 and 2 therefore fail as being totally irrelevant and therefore completely lacking in merit. I am in complete agreement with the learned trial judge that “the plaintiff should be grateful to the Board for not dismissing him summarily”.

Ground 3 of the plaintiff’s Grounds of Appeal complains that:

“3. The Federal Court of Appeal erred in law in failing to observe that the lower court was wrong in law and in fact to have taken the view that the retirement with full benefits of the Appellant was justified because of his disobedience to the instructions given him to vacate the premises he occupied which he fails (sic) to do.”

This is the only ground that attempts a direct confrontation with the facts around which the main issue revolves-was the retirement of the plaintiff on the ground of disobedience to instructions given to him to vacate the premises he occupied at No. 13A Dakar Road, Apapa justified by the facts and circumstances of the case The trial judge said yes. The plaintiff/appellant maintains that the learned trial judge and the court below were both in error and he gives reasons for their error he gives the “Particulars and Nature of Error”. I will consider these particulars of error one by one. The first particular and Nature of Error alleges that

“I. The Nigerian Cotton Board did not state in their letter of 11th April, 1979 the offence or offences committed by the Appellant which warranted the decision to retire the Appellant prematurely from service to enable the Appellant put up his representations of defences.”

Now the letter of 11th April, 1979 tendered as Exhibit Q did not just come out of the blue. It was as a result and in consequence of, and a culmination to a chain of events and correspondence between the plaintiff/appellant and the defendant/board. There was first a letter of 16th October, 1978 tendered as Exhibit E1 directing the plaintiff “to resume duty at the Head Office, Funtua” and to vacate his quarters at No. 13A Dakar Road, Apapa for the Assistant Shipping Manager, Alhaji Bala Jimete “who is also permanently transferred to Lagos”. Exhibit E1 clearly emphasised- “These permanent postings take effect from Monday, 16th October, 1978”. Did the plaintiff vacate the quarters as directed No, he did not. Rather he wrote Exhibit F dated 16-11-78 and Exhibit G dated 18-12 -78 complaining that he had his children in schools in Lagos. On the 25th January, 1979, the defendant Board wrote the plaintiff/appellant a further letter tendered as Exhibit J which contains the following significant passage:

“The Management is in receipt of your many petitions which are all considered untenable, and these attitudes are not expected of a Senior Officer like yourself… Your family must vacate the main part of the Board house at Apapa and move into the self-contained building annexed thereto… The above arrangements shall not extend beyond the end of the month of April, 1979.”

Did the plaintiff/appellant vacate the premises on receipt of Exhibit J No, he did not.

On the 26th January, 1979, the plaintiff wrote in reply to Exhibit J another letter tendered as Exhibit K in which he insinuated that his transfer to Funtua was a punitive measure and that he had committed no offence. He ended Exhibit K thus:

“It is the Children’s schools that keep me in the Board’s quarters temporarily………”

Following from Exhibit K, the defendant/Board issued the plaintiff with the Query tendered as Exhibit L. It may be necessary to reproduce this Query:

“EXHIBIT ‘L’ SUIT No. LD/798/79

NIGERIAN COTTON BOARD

(Established by Decree 1977)

HEAD OFFICE:

ADMINISTRATION DIVISION P.M.B. 6035

FUNTUA

February 6, 1979

KADUNA STATE

Our Ref. NCTB/CSTP-387/6

T.A.O. Sule

Nigerian Cotton Board,

Funtua

u.f.s. A.G.M. (Sales)

Nigerian Cotton Board

Funtua

Dear Sule,

QUERY

You are fully aware that you were given instructions and directives in respect of your transfer to Funtua from Lagos, amongst which is for you to vacate the Board’s quarters at Apapa which was allocated to you while at Lagos. But you unfortunately persistently refused to obey those instructions in a flagrant manner.

The language used by you in the above-mentioned correspondence is to say the least, impolite and discourteous. The language used is not expected of an officer in addressing his senior or superior officers.

Your attitude as a whole amounted to disobedience of a lawful order and instruction and insubordination. These are misconducts prejudicial to the discipline and proper administration of this Board.

You are hereby given up to 24 hours from the time you receive this letter to explain why a serious disciplinary action should not be taken against you.

Yours sincerely,

(Sgd) A.M. Koki

for General manager

Did the plaintiff vacate the premises at No. 13A Dakar Road, Apapa after this query No, he did not. Instead he wrote Exhibit M reiterating the same old story of his children being in schools in Lagos.

Now came the final scenes of this long drawn drama. As a result of Exhibit M, the Defendant/Board by letter dated 7th February, 1979 and tendered as Exhibit N suspended the plaintiff vacate the premises after that suspension No, he did not. Rather and as usual he wrote from the very same quarters he was asked to vacate since 16th October, 1978 in Exhibit E1, a letter dated 12th February, 1979 to enable my children in schools to complete the school session for the year. “It was thus clear from Exhibit 0 that the plaintiff had no intention of obeying the order to vacate No. 13A Dakar Road, Apapa until, as and when, it suited him. On 15th February, 1979, from the self same address, No. 13A Dakar Road, Apapa, the plaintiff wrote yet another letter tendered as Exhibit P repeating his request to be allowed to retain the quarters at No. 13A Dakar Road, Apapa till June 1979. It was as a result of all these that the Board wrote Exhibit Q retiring the plaintiff from its service. Can it be seriously contended, as was alleged in the plaintiff/appellant’s Particulars of Error No.1, that the letter of 11th April, 1979, Exhibit Q did not state “the offence or offences committed by the appellant who warranted the decision to retire the Appellant prematurely from service to enable the Appellant put up his representations or defences” To so contend will be to close one’s eyes to the chain of events, to the various letters between the parties which finally led to Exhibit Q. Exhibits E1 to Q form one continuous and related transaction. Reading the exhibits as a whole one cannot escape the following conclusions:

I am satisfied that the letter of 11th April, 1979, Exhibit Q, retiring the plaintiff after the Query, Exhibit L, spoke for itself. It clearly showed that the appellant was being retired because of disobedience an insubordination as contained in the query-Exhibit L. .

The second Particular of Error was

“(ii) The said Board did not give the appellant an opportunity of being heard or represented before the decision was taken without his knowledge and against the rules of natural justice”.

No one seized of the facts of this case can seriously urge this ground. The rules of natural justice are two-impartiality and fairness. How can the defendant/Board which had good cause to dismiss the plaintiff summarily, but which on humanitarian grounds only retired him with full benefits, be accused of bias against the plaintiff/appellant With regard to fairness and fair hearing, the plaintiff/appellant was given the undue license to write Exhibits F, K, M, O and P. No hearing could be fairer. This ground lacks substance. I only wish this court had the power to replace the retirement with summary dismissal. The third Particular of Error was that

“(iii) The respondent/Board had no power to retire or require the appellant to retire after he has attained the age of 45 years. That power could only be exercised by the Federal Commissioner charged with responsibility for pensions in accordance with the provisions of section 4 (2) of the Pensions Act 1979 (formerly) Decree No. 102 of 1979.”

Now the Pensions Decree Act No. 102 of 1979 was signed into law by the Head of the Federal Military Government on 28th September, 1979. The plaintiff/appellant was retired by Exhibit Q dated 11th April, 1979. In other words, the plaintiff/appellant’s retirement occurred before the promulgation of the Act. It is correct that Decree now Act No. 102 of 1979 was given a retrospective effect from 1st April, 1974 but that Act could not control transactions finished and concluded before it came into being. It cannot be invoked to recall an officer who had retired or been made to retire before it was signed into law. It can however control rights that derived and vested before it was passed, which are still subsisting and contingent like the power granted by its s.25 (2) to recalculate pensions already granted “in order to take account of the provisions of this Decree where applicable.”

Section 4 (2) of the Act No. 102 of 1979 merely stipulated

“4 (2) The Commissioner may require an officer to retire from the service at any time after he has attained the age of 45 years subject to three months’ notice in writing of such requirement being given.”

Section 4, subsection 1 provided for the statutory retiring age of 60 years. It was formerly 55 years. Subsection 2 is predicated on subsection 1 and merely kept open the power of the Commissioner to require an officer to retire after he has attained the age of 45 years. In other words, the word “may” used in subsection 2 merely permissive. It cannot properly be interpreted to mean that every retirement after the age of 45 years will be made by the Commissioner.

Again Section 1 of Act No. 102 of 1979 makes it abundantly clear that its provisions apply to persons retiring “from the Public Service of the Federation.” Did the plaintiff/appellant retire from the Public Service of the Federation it is common ground that the plaintiff was, with effect from 1st April, 1977 “deployed and deemed to have been appointed by the defendant/Board” (see paragraph 7 of the Statement of Claim which was admitted in paragraph 2 of the Statement of Defence). Under Section 4 of the Commodities Board Decree, 1977 the defendant/Board had power to approve Conditions of service for its staff including provisions for the payment of pensions. This means that Conditions of Service under the defendant Board are not necessarily the same as under the “Public Service of the Federation”. The onus was on the plaintiff/appellant to show with certainty and without equivocation that his “Terms and Conditions” of Service were under the Public Service of the Federation (to which the Pensions (Decree) Act No.102 of 1979 applies) and not under the defendant/Board or under the Nigerian Product Marketing Company Ltd. The trial court on this aspect of this case found as follows

“It seems to me that the Conditions of Service applicable to the plaintiff were the Conditions of Service of the Nigerian Produce Company Ltd. from where the plaintiff was deployed to the Nigerian Cotton Board. The plaintiff himself admitted that the Nigerian Produce Marketing Company Limited had its own Conditions of Service. These were never produced and it is my finding that it was never intended that a staff of any of the Boards set up by the Commodity Boards Decree be governed by the Rules of the Civil Service. (See Section 4(3) of the Commodity Boards Decree 1977).”

The Court of Appeal also considered whether the plaintiff/appellant’s service was governed by the Conditions of Service of the Civil Service of the Federal Republic of Nigeria and held per Ademola, J.C.A. (Kazeem and Kutigi, JJ.C.A. concurring).

“On the pleadings, it seems to me that it is not open to the appellant to contend that his conditions of service and terms of employment would be different from that which the Board would use for members of its staff. The appellant has also failed to prove that the conditions of service and terms of employment of either the Federal Civil Service or that of the Nigerian Produce Marketing Company Limited apply to him by the non-production of documents to that effect.”

I agree with the conclusion of the court below that the plaintiff/appellant failed to prove that the terms and conditions of service in the Federal Civil Service apply to him. I also agree with the court below “that this aspect of this appeal based on the provision of Section 4 and its bearing on Section 1(1) of the Pensions Decree Act No. 107 of 1979 cannot succeed.” It fails.

In the final result, all the grounds urged before us having failed, the plaintiff/appellant’s appeal also fails and it is hereby dismissed as totally lacking in both substance and merit. I shall now deal with the defendant/respondent’s appeal. The defendant/Board counter-claimed for:

6(a) Possession of No. 13A Dakar Road, Apapa.

(b) Mesne profits at the rate of N13, 500.00 with effect from 15-5 in respect of the plaintiff’s unlawful occupation of the premises at 13A Dakar Road, Apapa until possession is giving up;

and

(c) N5, 308.00 in respect of amount owing by the plaintiff to the defendant/Board for motor vehicle advance made to him whilst he was an employee of the said defendant.”

After due hearing, the learned trial judge, Oshodi, J. gave judgment for the defendant/Board on its counter-claim as follows:

“1. N2, 711.35 being balance of the motor vehicle allowance granted.

2. Mesne profits at the rate of N13, 500.00 per annum from the 17th May, 1979-a month after 17th April, 1979 when the plaintiff received the letter of his retirement. He was given a month’s grace to vacate the premises. The defendants are also entitled to an order of possession of the premises. The plaintiff is thereby ordered to give up possession of the premises-13A Dakar Road, Apapa on or before the end of February 1981.”

On appeal, the Court of Appeal, Lagos Division set aside the trial court’s judgment for the defendant/Board for possession and mesne profits at the rate of N13,500.00 per annum and 17th May 1979 until deliver of possession, observing:

“The appellant being a tenant under the Rent Control Law 1976, is entitled to the statutory notice in Form E under the Law. No such notice was served on the appellant to determine his tenancy. That being so, there could be no questions of unlawful occupation giving rise to the claim for mesne profit. Therefore the award of N13, 500.00 made by the learned judge in favour of the Respondent is hereby set aside.

The issue of jurisdiction of the High Court to entertain this aspect of the counter-claim was raised by the appellant in one of his grounds. There is certainly no answer to it in view of s. 34(1) of the Rent Control and Recovery of Residential Premises Law: Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S.C. page 1 at Pages 72 to 73.”

The result is that the Court below reversed in part the judgment of the trial court in favour of the defendant/Board on its counter-claim.

The defendant/Board has now appealed to this Court against the above decision of the Court of Appeal on three grounds, each dealing with error in law. Ground 1 complains that:

“1. The learned Judges of the Federal Court of Appeal erred in law in holding that the Lagos State High Court had no jurisdiction to entertain the defendant’s counter-claim in view of Section 34(1) of the Rent Control and Recovery of Residential Premises Law and the case of Pan Asian African Co. Ltd. (1982) 9 S.C. page 1 at pp. 72-73. When on a proper construction of the case of Diocesan Synod of Lagos v. Dedeke [1956] L.L.R. p. 30 , the learned Judges ought to have held that the tenancy was a service tenancy which did not come under the Rent Control and Recovery of Residential Premises Law, and therefore the jurisdiction of the State High Court was not ousted. ”

Now the issue of jurisdiction is radically fundamental and I therefore want to tackle it first as a decision of that issue may conclude the entire appeal.

There is no doubt that Section 34(1) of the Lagos State Rent Control and Recovery of Residential Premises Law No.9 of 1976 ousted the jurisdiction of the Lagos High Court to deal with “causes or matters mentioned in the foregoing provisions of this Edict” where such jurisdiction has been conferred by the Edict on the Tribunal established under Section 2 thereof. To determine whether the facts and circumstances of the counter-claim now on appeal fall within “causes or matters mentioned in the foregoing provisions of Edict No.9 or of 1976” two main questions and one subsidiary question will all have to be answered.

Question No.1: Does the premises at No. 13A Dakar Road, Apapa fall within the class of premises controlled by the Lagos State Rent Control Law No.9 of 1976

Question No.2: After Exhibit Q-the Board letter retiring Mr. Sule (the plaintiff and respondent in the cross-appeal), was there still subsisting any relationship of Landlord and Tenant between the Board and Mr. Sule

Question No.3: If the answers to questions Nos. 1 and 2 are in the affirmative, what was the forum competent for the defendant/ Boards’ counter-claim for recovery of possession and mesne profits.

I will now consider the first question. Paragraph 2 of the Board’s counter-claim described the premises at No. 13A Dakar Road, Apapa and ended by saying that it is “located in Low Density Area ‘A’ as specified in the schedule to the Lagos State Rent Edict.” Paragraph 3 of the counter-claim averred that:

“3. In accordance with the provision of the Edict aforesaid, the Standard Rent of the premises is N13, 500.00 per annum.”

From the pleadings and the evidence of the Board’s only witness, Samuel Chukwunwelunnwa Onwuegbusi, there can be no doubt that No. 13A Dakar Road, Apapa is a residential accommodation which under Section 1(1) of Lagos State Law No.9 of 1976 is subject to the control of Edict No.9 of 1976. The answer to question No.1 is therefore yes.

Was there any relationship of landlord and tenant between the Board and Mr Sule after Mr Sule’s compulsory retirement by Exhibit Q It is correct that Exhibit Q terminated the contractual relationship between the parties but Mr Sule in spite of Exhibit Q refused to relinquish possession of No. 13A Dakar Road, Apapa. He was still in occupation. As defined in Section 40(1) of the Rent Edict now Law No.9 of 1976, the Board as the “person entitled to the immediate reversion of the premises” fully qualifies as landlord and Mr. Sule being the “person occupying the premises” qualifies as a tenant. To borrow the language of my learned brother Aniagolu, J .S.C. in the Pan Asian case (supra) at page 85, Mr. Sule “had a lingering interest” in No. 13A Dakar Road, Apapa-an “interest” based on physical occupation, and protected under the Lagos State Rent Control and Recovery of Residential Premises Law No.9 of 1976. Mr. Sule became a statutory tenant under the Rent Control Law No. 9 of 1976 since his original entry and possession were both lawful. Whether one chooses to call Mr. Sule’s tenancy of No. 13A Dakar Road, Apapa “Service Tenancy” or part of his “fringe benefit”, it cannot be in dispute that his original tenancy arose out of his contract of service with the Board. On the termination of that contract and on his holding over, he became a statutory tenant under the Lagos State Rent Control Law No.9 of 1976. The answer to question No.2 is also yes.

With regard to question No.3, the whole scheme and tenor of the Lagos State Rent Control. . . Law No.9 of 1976 especially its Sections 15 and 18 are to provide security of tenure and protection to tenants including even a statutory tenant, and to restrict recovery of premises from tenants unless the landlord complies with the necessary formalities as “Notice to Tenant of Owner’s Intention to Apply to Recover Possession” as in Form E followed by the issuance of a “writ or Plaint Against Tenant OR Person Refusing To Deliver up Possession” as in Form F. In other words, unless a tenant (and this includes a statutory tenant) voluntarily delivers up possession he has to be ordered to do so by a judgment of the Tribunal. This seems to be the intendment of Section 24, 25 and 26 of Edict now Law No.9 of 1976 as well as Forms G and J of Schedule 1 attached to the said Edict or Law.

The Court of Appeal relied heavily on Section 34(1) and the decision of this Court in Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S.C.1 Ademola, J.C.A., who wrote the leading judgment in which Kazeem, J.C.A. (as he then was) and Kutigi, J.C.A., both concurred observed:

“The issue of jurisdiction of the High Court to entertain this aspect of the counter-claim was raised by the appellant in one of his grounds. There is certainly no answer to it in view of s. 34(1) of the Rent Control and Recovery of Residential Premises Law No 9 of 1976; Pan Asian African Co. Ltd. (1982) 9 S. C. p. 1 at pp. 72 to 73. In the Brief filed on behalf of the defendant/Board, it was suggested that the court below was in error and it was therein contended:

“The short answer to the foregoing argument is that it overlooks the fact that if the Supreme Court’s decision does in fact support it, then that Court must have acted per incuriam. The attention of the Court could not have been drawn to Section 8 of the Rent Control and Recovery of Residential Premises (Amendment) Edict 1978, No. 23 which deleted Section 34 of the Original Edict. The Edict also abolished the Rent Tribunals. In any event, the defendant must also submit that to the extent that the provision of any Edict mollifies or detracts from the jurisdiction conferred on the High Court of the State under Section 236 of the 1979 Constitution, such provision must be regarded as void.”

In view of the above submission, it becomes imperative to look more closely into the jurisdiction of the Lagos High Court to entertain the defendant’s counter-claim.

The first question that now arises is-was Edict No. 9 of 1976 amended and if yes, how did the amendment affect the ouster of the jurisdiction of the High Court contained in Section 34(1) of the original Edict Yes, Edict No.9 of 1976 was amended. The first amendment was by the Rent Control and Recovery of Residential Premises (Amendment Edict No. 14 of 1977. Section 1 of the new and amending Edict (No. 14 of 1977) stipulated:

1. Section 34 of the Rent Control and Recovery of Residential Premises Edict is hereby amended by deleting sub-section (2) and (3) thereof and substituting therefore the following new subsections:

‘(2) Nothing in the foregoing provisions shall affect the jurisdiction and other powers of the High Court to continue to hear and determine causes and matters which are before that Court at the date when jurisdiction is conferred on the tribunals, and any proceedings in such causes and matters which are before that court at the expiration of twelve months beginning from 1st August, 1977 shall abate on the expiration of that period.

(3) Nothing in the foregoing provisions shall affect the jurisdiction and all other powers of Magistrate Courts or any other court of the State to continue to hear and determine causes and matters which are part heard before such court at the date when jurisdiction is conferred on these tribunals and any proceedings in such causes or matters which are part heard at the expiration of twelve months beginning from 1st August, 1977 shall abate on the expiration of that period”.

The above amendment was clearly designed to save the jurisdiction of the High Court and Magistrates’ Courts but only over matters either pending (in case of High Courts) or part heard (in the case of Magistrate Courts) at the date when jurisdiction was conferred on the tribunals. This amendment did not abolish the Rent Tribunals. It did not restore in its entirety the former jurisdiction of the High Court and Magistrates’ Courts ousted by Section 34(1) of the original Edict.

The next amendment was by the Rent Control and Recovery of Residential Premises (Amendment) Edict No. 23 of 1978. On the issue of jurisdiction Section 8 of Edict No. 23 of 1978 provided:

“8. Section 34 of the principal Edict is hereby deleted and a new Section 34 is substituted as follows

34. Notwithstanding the provisions of this Edict, Magistrate Courts and High Courts shall continue to have jurisdiction in all pending matters before the 1st day of July, 1976.”

Edict No. 23 of 1978 did not as was suggested in the Brief filed on behalf of the defendant/Board “abolish the Rent Tribunals”. I should say it gave the Tribunals greater powers with regard to the fixing of rent and greater control over the ejectment of tenants by landlords. These powers were contained in the three new subsections added to the original Section 14 of Edict No.9 of 1976.

With regard to the issue of jurisdiction, the amendments introduced by Edict No. 23 of 1978 were:

(i) The original Section 33 of Edict No.9 of 1976 was deleted and a new Section 33 substituted.

(ii) This new Section 33 gave the High Court appellate jurisdiction over decisions of Rent Tribunals.

(iii) A new Section 34 was inserted giving Magistrate Courts and High Courts power to “continue to have jurisdiction in all pending matters before the 1st day of July, 1976.”

What was repealed by Section 9 of Edict No. 23 of 1978 was The Rent Control and Recovery of Residential Premises (Amendment) Edict No. 14 of 1977 and not The Rent Control and Recovery of Residential Premises Edict No.9 of 1976 which was the Edict the Court of Appeal relied upon in this case. That Edict is still intact.

This case did not come to the Lagos High Court on appeal. The only question one may now ask is:

Was the counter-claim of the defendant/Board a matter pending in the Lagos High Court before the 1st day of July, 1976

This case was started with a Writ of Summons filed on 10-7-79. The defendant’s counter-claim was filed on 1-8-79. By both dates, jurisdiction to order recovery of possession and mesne profits vested in the Rent Tribunals. The former jurisdiction of the High Court had been ousted by Section 34(1) of the Edict No.9 of 1976. The new jurisdiction conferred by the new Section 34 introduced by Edict No. 23 of 1978 is specifically limited to matters pending before the High Court before 1st July 1976. This does not include the defendant’s counter-claim filed on 1st August, 1979. The two amendments-No. 14 of 1977 and No. 23 of 1978 cannot and have not helped the defendant’s appeal on its counter

I shall now consider Section 236 of the 1979 Constitution.

It provides:

“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

Section 236 above will ordinarily comprehend the defendant/Board’s counter-claim. Ordinarily also it will be arguing against the obvious to contend that a State High Court in view of the provisions of Section 236 of the 1979 Constitution had no jurisdiction to entertain the counter, But Section 236 above is made “subject to the provisions of this Constitution” including Section 279(1) which stipulates:

“279(1) the provisions of this Constitution, except Section 262 thereof, shall come into force on 1st day of October, 1979.”

In other words, the “unlimited jurisdiction to hear and determine any civil proceedings” conferred on the High Court of a State by s.236 (1) of the 1979 Constitution “shall come into force on 1st day of October, 1979.” The counter-claim was filed on 1st August, 1979, two clear months, before the coming into force of the 1979 Constitution. Section 236(1) of the 1979 Constitution was not meant to have a retro-active effect or a retrospective validity. That section in my humble view will definitely control proceedings filed after 1st October, 1979 but not those filed before the 1979 Constitution was ever born.

On the 1st August, 1979, claims or counter-claims for recovery of possession and mesne profits were to be filed and heard in accordance with the provisions of Edict No.9 of 1976, as amended by Edict No. 14 of 1977 and Edict No. 23 of 1978. As at that date, the Lagos High Court had only appellate jurisdiction to hear appeals from decisions of Rent Tribunals but not an original jurisdiction which had been ousted by s. 34(1) of Edict No.9 of 1976. The only issue worth considering now is:

Where an action is filed in the wrong court, filed before a court that has no jurisdiction to hear it, is the act of such filing null and void

If the answer is yes, then the Board’s counter-claim in this case was still born. It died at birth and the principle of-ex nihilo nihil fit will apply. A court is said to have original jurisdiction in a particular matter when that matter can be initiated before it; while a court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a court of first instance. The combined effect of Edict No.9 of 1976 especially its S.34(1) and Edict No. 23 of 1978 especially its Sections 33(1) and 34 is to give the Lagos State High Court appellate jurisdiction from Rent Tribunals and to restore but delimit its original jurisdiction to “all pending matters before the 1st day of July, 1976.” The counter-claim of the Board did not come to the High Court on appeal; it was not a matter pending before the 1st day of July, 1976. That counter-claim could not therefore have been initiated before the Lagos State High Court on 1st August 1979 (before the coming into force of s.236 of the 1979 Constitution) because of the ouster of the jurisdiction of the High Court by Section 34(1) of Edict No.9 of 1976. The competence of a court is an essential element in determining its jurisdiction. In Gabriel Madulolu v. Johnson Nkemdilim [1962] All N.L.R. 587 the Federal Supreme Court discussed at some length the issue of competence and held that any defect in competence is fatal and the proceedings are nullity however well conducted and decided. I hold that on the 1st of August, 1979 the Lagos State High Court as the court of first instance was not competent to entertain the counter-claim because the subject matter-recovery of possession and mesne profits-was not within its jurisdiction. The claim for recovery of possession and mesne profits should have been properly filed in the Tribunal after the issuance of the relevant and necessary notices. In Adeigbe and Another v. Kusimo and Anor. [1965] N.M.L.R. 284 this Court approved a statement by Bairamain, J.S.C., in Madukolu Ors v. Nkemdilim (supra) that:

“A court is competent when

1. …………
2. …………
3. the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”

Under Edicts No.9 of 1976 and No. 23 of 1978, “Notice to the Tenant of Owner’s Intention to Apply to Recover Possession” is a condition precedent to the exercise of jurisdiction. This was not done in this case.

In the Brief filed on behalf of the Board, the Questions for Determination were listed as follows:

(a) Whether the High Court had jurisdiction to entertain the counter-claim.

(b) What is the status of the plaintiff in relation to the premises at No. 13A Dakar Road, Apapa

(c) In the light of the answers to question (b) is the defendant entitled to the sum awarded by the High Court as mesne profits”

My answer to (a) above is that the Lagos State High Court had no jurisdiction to entertain the counter-claim. That was a matter peculiarly within the competence of the Tribunal. As to question (b) above the answer is that after Exhibit Q, the plaintiff holding over became a statutory tenant under S.40(1) of the Rent Control and Recovery of Residential Premises Law No.9 of 1976. As to question (c) above, since the counter-claim was incompetent before the Lagos State High Court and since the High Court had no jurisdiction, it had no competence to make the purported award. The defendant cannot therefore have any entitlement to an award void for lack of jurisdiction. The appeal on the counter-claim therefore fails and should be accordingly dismissed.

I will therefore dismiss same and make the following orders:

(1) The counter-claim for possession and mesne profits before the High Court being incompetent is hereby struck out for want of jurisdiction.

(2) Since the plaintiff’s appeal failed as well as the Board’s appeal on its counter-claim, each party should bear its own costs.

SC.113/1984