The Trustees Of The Nigeria Railway Corporation Pension Fund V. Isaiah Okumade Aina (1970)

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LEWIS, J.S.C.  

On the 17th of June, 1970 we dismissed with 66 guineas costs the defendant’s appeal from the ruling by Kazeem, Ag. J. (as he then was) of the 10th of May, 1967 in suit No. LD/498/66 in the Lagos High Court, and we now give our reasons for so doing.
The plaintiffs’ writ originally claimed a declaration that:-

“(a) By virtue of the provisions in the Nigerian Railway Corporation Standard Conditions of Service Officers 1957 and subsequent amendments thereto the compulsory retiring age of the defendant remained 55 years subject only to the discretionary right of the Corporation to extend the said retiring age annually until the defendant attained the age of 60.

(b) The grant of any extension of time does not confer a legal right upon the defendant nor a duty upon the Corporation to keep the defendant in their service should any event arise that would justify relinquishing the defendant of his services to the Corporation.

(c) The defendant was not entitled to claim under abolition of office terms as provided for by the provisions of the Pensions Fund as he did not come within the category of officers who could be so entitled.

(d) Since the post of the defendant was not abolished nor deemed in law to be abolished that defendant is not entitled to the Oyero Arbitration award, and or any compensation, the calculation of which is based upon the strange principle of ‘Abolition in Spirit’ as contained in the arbitration award made in favour of the defendant.
(e) If the arbitrator in the said award is right in holding, as he in fact did hold, that the defendant’s employment was wrongly terminated by giving him an inadequate notice of three months instead of six, then what the defendant is entitled to claim will be a part of six months salary or a fair assessment of the loss occasioned by the inadequate notice.”

The defendant then filed a motion asking the High Court to strike out the case “on the ground that the matter had been decided by arbitration on the 29th June, 1966”, but this never seems to have been dealt with as the plaintiffs then applied by motion to set aside the arbitration and to amend their writ to add:-
“That the Plaintiffs’ claim against the defendant is for a declaration setting aside the arbitration award of Kunle Oyero, Barrister-at-Law, given on 31st May, 1966 to 29th June, 1966 in the dispute between the parties.”

This application by the plaintiffs was granted by Taylor, C.J. on the 30th of January, 1967 and an amended writ incorporating the additional prayer was filed. Pleadings were then filed and the defendant in his statement of defence in answer to the statement of claim pleaded in paragraphs 40 to 43 as follows:-
“40. The defendant will raise as a preliminary objection that the application to set aside this award was made out of time and hence the application should be struck out with costs.
41. The defendant will also raise as a preliminary objection that the reliefs claimed in paragraph (i) a-e of the writ cannot be looked into by the court until the application to set aside the arbitration award has been dealt with.
42. The defendant will also contend that the court cannot entertain any of the grounds put forward by the plaintiffs for setting aside the arbitration award.
43. On the whole of the plaintiffs’ claim their application to set aside the arbitration award constitutes a violent abuse of court procedure and should therefore be dismissed with substantial costs.”

When the matter came before Kazeem, Ag. J. on the 10th of May, 1967, Mr Oshinsanya for the defendant raised a “preliminary objection” on the basis of paragraphs 40 and 41 of the statement of defence which we have quoted. Mr Omotosho for the plaintiffs submitted that Mr Oshinsanya was raising what amounted to a demurrer and on that basis had not complied with the rules of court, and the learned trial judge then ruled as follows:-

“Court: The points raised in paragraphs 40 and 41 of the statement of defence on which the preliminary objection is being made are points of law which cannot be pleaded under our rules of court or raised for the purpose of getting the action dismissed on grounds of law without a proper application being made under Order 28 of the High Court of Lagos (Civil Procedure) Rules. There is no such application before me now and, for that reason alone, I cannot entertain the preliminary objection on the ground of law. It is of course open to the defendant either to adopt the procedure prescribed under Order 28 of the Civil Procedure Rules, or proceed with the hearing of the action and raise his point of law for the consideration of the court after the conclusion of the trial. The choice is entirely his.”

The defendant being dissatisfied with that ruling appealed to this Court complaining that the learned trial judge was wrong to treat his objection as a demurrer.

Mr Oshinsanya’s sole argument was that as he had filed on behalf of the defendant a statement of defence the time for a demurrer was passed and he submitted that he was nonetheless entitled to make an oral preliminary objection to the hearing of the action on the grounds that he had pleaded in the statement of defence.

He was unable to show us any rule of court that specifically permitted such a procedure but he relied on Order 52, rule 2 of the Lagos High Court Rules which reads:-

“2. Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
He further submitted that having regard to that provision the High Court could act as in England under Order 18, rule 11 and Order 34, rule 2 of the Rules of the Supreme Court in England in the 1966 Annual Practice.
We agree with Mr Oshinsanya that the time to take a demurrer under Order 28, rules 1-3 of the Lagos High Court Rules which read:-
“Order XXVIII