OSUU S.C. ODUKO V. GOVERNMENT OF EBONYI STATE OF NIGERIA-2009

OSUU S.C. ODUKO V. GOVERNMENT OF EBONYI STATE OF NIGERIA

(2009) LCN/3694(SC)

In the Supreme Court of Nigeria

Friday, April 3, 2009


Case Number: SC.115/2004

 

JUSTICES:

ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE SUPREME COURT

ALOMA.MARIAM MUKHTAR, JUSTICE SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT

PIUS OLAYIWOLA ADEREMI(Lead Judgment), JUSTICE SUPREME COURT

CHRISTOPHER MITCHEL CHUKWUMA-ENEH , JUSTICE SUPREME COURT

 

APPELLANTS

OSUU S.C. ODUKO

 

RESPONDENTS

1. GOVERNMENT OF EBONYI STATE OF NIGERIA2. THE CIVIL SERVICE COMMISSION, EBONYI STATE3. CHIEF (DR.) I.E. ITUMA4. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, EBONYI STATE(Former Chairman, Civil Service Commission, Ebonyi State)

 

 

P.O. ADEREMI, JSC (Lead Judgment): This is an appeal against the order of the Court of Appeal, Enugu Division (hereinafter referred to as the court below) for a re-trial of the suit at the High Court, Ebonyi State before another judge. The judgment of the court below was delivered on the 15th of May 2003 sequel to an appeal against the ruling of the High Court of Justice in Abakaliki, Ebonyi State delivered on the 6th of June 2002 dismissing the suit of the plaintiff/appellant based on a preliminary objection taken against the jurisdiction of the trial court. Needless for me to say that by the ruling of 6th .June 2002, the preliminary objection was sustained.

 

Briefly, the facts of the case are thus: the appellant, who was the plaintiff before the trial court had claimed against the respondents, who were the defendants before that court, the following reliefs: –

 

“(1) A declaration that the third defendant’s letter with Reference No. EBS/CSC/S.009/1/22 dated 5th May 1999 but delivered to the plaintiff on the 2nd of June 2000, purporting to retire the plaintiff with effect from 1st May, 1999 is ultra vires the second defendant and on the third defendant and therefore is invalid, null, void and of no effect whatsoever.

 

(2) A declaration that the plaintiff was and is still a Permanent Secretary in the Civil Service of Ebonyi State Government of Nigeria and is entitled to all his emoluments including salaries, wages, overtime, leave allowances, commissions, fees, gratuity, benefits, advantages (whether or not that advantage is capable of being turned into money or money’s worth) allowances, pensions, loans or annuity paid; given or granted in respect of his office as a Permanent Secretary.

 

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(3) An order reinstating the plaintiff as a Permanent Secretary in the Ebonyi State Civil Service.

 

(4) A declaration that the plaintiff is the occupier of and is entitled to the possession and occupation of four (4 No.) BEDROOM EXECUTIVE BUNGALOW WITH APPURTENANCES SITUATE AT NO. 8 ILEZZA ROAD G.R.A. ABAKALIKI, EBONYI STATE pursuant to the Ebonyi State Government letters (a) No. SGE/ETB/69/36 dated 4th February, 1999 otherwise known as ESTABLISHMENT CIRUCULAR NO. 2/1999 and (b) NO. SGE.ETB/ 0017/185 dated 4th July, 1999.

 

(5) An order of injunction restraining the defendants or any of them by themselves, their servants, agents, associates, privies and/or cohorts from further disturbing the plaintiff’s quiet possession and occupation of the FOUR (NO.4) BEDROOM EXECUTIVE BUNGALOW WITH APPURTENANCES SITUATE AT NO. 8 ILEZZA ROAD GRA, ABAKALIKI, EBONYI STATE or otherwise ejecting or taking any further steps to eject the plaintiff from his said residential quarters of FOUR (4 NO.) BEDROOM EXECUTIVE BUNGALOW WITH APPURTENANCES SITUATE AT NO. 8 ILEZZA ROAD GRA, ABAKALIKI, EBONYI STATE.

 

(6) An order that the defendants do pay or cause to be paid to the plaintiff:-

 

(i) The sum of N504,000.00k (five hundred and four thousand naira) being the plaintiffs personal emoluments from the 1st day of May 1999 to the 30th day of April 2000 and continuing.

 

(ii) The sum of Nl60,000.00k (one hundred and sixty thousand naira) being the plaintiffs out of pocket expenses in respect of maintenance and running costs of his official Peugeot Saloon Car with Registration or Index Number EBO4A09 by the plaintiff prior to the purported retirement to wit 1st of May 1999.

 

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(iii)         The sum of N95,040.00k (ninety-five thousand and forty naira only) being the equivalent of £576.00 (five hundred and seventy-six pounds sterling) converting at N165:00 to £1 (one pound) being the cost of medical out-of-pocket expenses incurred by the plaintiff while on official duty in London in May 1999.

 

(iv)        The sum of N255,000.00k (two hundred and fifty-five thousand naira) being out-of-pocket expenses in respect of maintaining and running costs of the plaintiffs official Peugeot Saloon Car with Registration or Index Number EBO4A09 from the 1st of May 1999 to 30th April 2000 and continuing.

 

(v) Housing loan of Nl,500,000.00k (one million five hundred thousand naira) to the plaintiff on the same terms and conditions as granted to other Permanent Secretaries in the Ebonyi State civil Service by the second defendant to the plaintiff.

 

(7) An order that the 1st defendant do forward or cause its appropriate arms forward the plaintiffs application for lateral transfer of service to the Federal Government for necessary action.

 

(8) A declaration that the said purported letter of retirement if held valid can only be effective from the 2nd day of June, 1999, the date it was delivered to the plaintiff, or 5th day of May, 1999, the date it was written but not 1st day of May 1999.”

 

Suffice it to say that the statement of claim was filed along with the writ of summons. The defendants thereafter brought an application praying the trial court to dismiss the suit for (a) lack of jurisdiction and (b) that the action was statute-barred. The application was supported by an affidavit. The plaintiff filed a counter-affidavit. Sequel to taking the

 

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arguments of counsel to the parties in a reserved ruling delivered on the 6th of June 2002, the trial court upheld the preliminary object and consequently dismissed the suit. In so doing, the court reasoned: –

 

“There is clear evidence, even if not admitted by the plaintiff himself that he was removed from office by the Military Administrator by virtue of the Public Officers (Special Provisions) Decree No. 17 of 1984. Under that Decree the Military as the appropriate authority may direct the removal of a Public Officer, like the appellant, from office, or may delegate some one to do so. Once it is clear this was what happened, the court’s jurisdiction to entertain any claim to contest the removal from office is completely ousted.”

 

Being dissatisfied with the said ruling, the plaintiff appealed to the Court of Appeal, Enugu Division (hereinafter referred to as the court below). After taking the arguments of the counsel for both parties based on the issues they raised, the court below, in its judgment delivered on the 15th of May 2003, allowed the appeal and thus set aside the ruling of the trial court and remitted the case to Ebonyi State High Court of Justice to be tried by another judge. In so doing, the court below reasoned: –

 

“I need to stress the point that in dealing with ouster of court’s jurisdiction in a statute, the Judge has to be circumspect. He has to examine carefully the exhibit such as in this appeal Exhibit OSCO1 so as to find out whether in fact, the jurisdiction of the court has been ousted …………………………………………………………

 

I have given the ‘offending letter’ to wit Exhibit OSCO1 a close bird’s eye view. The 3rd respondent who issued it described himself as Chairman, Civil Service Commission. He is not the appropriate authority. He was not the Military Administrator of the State. There is no iota of evidence pointing to the direction that he was authorised by the appropriate authority to issue Exhibit OSCO1 to the appellant. The 3rd Respondent has not been shown

 

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as falling within the ambit of the definition of ‘appropriate authority’ under Section 4 Sub-section 2 of the Act. The Exhibit cannot be justified under the Act. ………………………………………………..

 

It is glaring that the 3rd respondent did not act under the provisions of the Act. Therefore, Exhibit OSCO1 issued by him without the authorisation of the appropriate authority is a nullity. I declare it so………………………………………………………….……….

 

It is clear that the Exhibit OSCO1, the offending letter, was received by the appellant on 2nd June 1999. And so, I find that the cause of action crystallised on the 3rd of June 1999 – that is a day after the stated exhibit was received by the appellant. …………………………………

 

Earlier in this judgment, the offending letter Exhibit OSC01 wrongly issued by the 3rd respondent to the appellant was declared a nullity. The letter has no legal consequence. It is as if nothing has happened to the appellant’s position before the letter was wrongly issued. The result is that I set aside the ruling of the court below dismissing the plaintiffs claim. The lower court has jurisdiction to hear and determine the suit.

 

It shall be heard on the merit by another judge of the Ebonyi State High Court of Justice other than Inva-Agha J.”

 

(The underlining is mine to emphasise what I shall later say about the judgment of the court below).

 

Being dissatisfied with the judgment of the court below, the appellant has again appealed to this court. He has raised six issues for determination by this court; and as set out in his brief of argument filed on 6th October 2005, they are as follows: –

 

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“(1) What is the future effect on the suit whose cause of action, on retirement order, was declared null and void for want of authority?

 

(2) In action challenging an order issued in pursuance to an enabling Act, what should be the ingredients in the proceeding that will result in a trial on the merits.

 

(3) What should be the proper order, substantive or consequential, that should naturally flow from a judgment which has declared the cause of action a nullity and lacking of legal force.

 

(4) Was the Court of Appeal right in speculating on evidence to back up their Lord’s order of re-trial on the merit when the order was not necessary to achieve substantial justice but merely to concede (sic) the trial court the reason for his action rather than ascertaining whether his decision was right or wrong which unnecessarily prolonged the suit rather than end it.

 

(5) Granting that the Court of Appeal ordered the retrial in compliance with Order 24 of the Imo State High Court (Civil Procedure) Rules, 1988, applicable to Ebonyi State pursuant to which the jurisdiction of the trial court was questioned, was the Court of Appeal to order a re-trial as a privilege to the Respondents to adduce evidence on facts having not been able to establish grounds to dismiss the Appellant’s suit when such a privilege has been vitiated by: –

 

(i) The Court of Appeal declaring the cause of action null and void and of no effect.

 

(ii) The cause of action having no legal root having been issued after the enabling Act had been repealed and cannot be a subject of re-trial.

 

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(iii)        The Respondents having statutory immunity not to give reason for removing a public officer (in the absence of (i) and (ii) above) but to rely on the authority of the enabling Act (see Nwosu v. Imo state Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at page 724 paras G – H) have not the necessity to give further evidence on facts and

 

(iv)        By the doctrine of stare decisis observed in this country, there is no evidence that will be given at the High Court that will set aside the decision of the Court of Appeal in respect of the cause of action declared null and void, it is unnecessary to require the Respondents to adduce further evidence of facts.

 

(6) Given the circumstances of the case, the evidence on the record and the judgment of the Court of Appeal, is the appellant entitled to reinstatement, payment of his salaries, allowances and granting of other emoluments.”

 

The lone issue raised by the respondents and as set out in their brief of argument is as follows: –

 

“Whether the appellant is entitled to all the reliefs claimed by him at the High Court upon the determination of his Appeal by the Court of Appeal when pleadings had not been filed and exchanged and no evidence has been led at the High Court.”

 

When this appeal came before us on the 20th of January 2009, Osuu S.C. Oduko, the appellant in person, adopted his brief filed on the 6th of October 2005 together with the Reply brief filed on the 26th of May 2006 and urged us to allow the appeal. Chief Jossy Eze,

 

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the learned Attorney-General for Ebonyi State also adopted the respondents’ brief of argument filed on the 12th of April 2006 and urged us to dismiss the appeal.

 

As I have said above, the plaintiff/appellant had filed the writ of summons along with his statement of claim. The only process filed by the respondents is the Notice of Preliminary Objection challenging the jurisdiction of the court to try the case; no statement of defence had been filed. And so the case had not proceeded to trial. Jurisdiction is the legal power or authority which a court must have to decide matters that are litigated before it; or to take cognisance of matters presented in a formal way for its decision. The limits of this legal power or authority are circumscribed by the statute or act of the National Assembly under which the court is constituted and may be extended or restricted by similar means. Let me hasten to say that the sole issue that arose from the decision of the trial court and which has travelled to this court is, whether that court (the trial court, High Court of Justice, sitting at Abakaliki, Ebonyi State) has the legal power or authority – jurisdiction – to entertain the suit. I shall therefore marry all the issues raised by the parties into this singular but fundamental issue. As I have said above, the singular point the trial court in reaching the conclusion that it lacked jurisdiction to entertain the suit is the provision of the Public Officers (Special Provisions) Decree No. 17 of 1984 under which according to it, the Military Governor, as the appropriate authority may direct the removal of a public officer, the like of the appellant, from office or the Military Governor may direct someone to so do. It (the trial court) went further to say that once it was clear that that was what happened, the court’s jurisdiction to entertain the suit was ousted. I pause to say that it is now a well-established principle of our law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the suit. See Adeyemi & Ors. v. Operoyi (1976) 9 & 10 S.C. 31. A careful study of the statement of claim filed along with the writ leaves me in no doubt that justiciable issues are therein contained. Thus when the court below, after reviewing all the arguments canvassed by the counsel before it, held inter alia:

 

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“The result is that I set aside the ruling of the court below dismissing the plaintiffs claim. The lower court has jurisdiction to hear and determine the suit.”

 

I cannot but agree with that conclusion. I also endorse its order to the effect that the case shall be heard on the merit by another judge of the Ebonyi State High Court of Justice other than that judge that first heard the preliminary objection. I would think that the court below should have stopped here, since it had directed that the case should be heard on its merit before another judge. This is because pleadings have not been completed and no evidence had been led. But, and this is very unfortunate, the court below went at length to subject a crucial document, yet to be tendered in evidence, to microscopic judicial examination and pronounced upon it. The findings made on this document are copious. With due respect, those findings in my view, are premature and ought not to have been made at this stage of the proceedings; pleadings have not been completed and no evidence had been led. All the issues raised by the appellant are, consequently resolved against him. The only issue raised by the respondents and which has encapsulated all the issues identified by the appellant, is answered in the negative.

 

Following all I have said, I hereby set aside all the findings of the court below on the document referred to in its judgment. I agree with the court below that the case be sent back to the High Court of Justice sitting at Abakaliki, Ebonyi State before another judge for re-trial. Consequently, the appeal is dismissed. There shall be no order as to costs.

 

KATSINA-ALU, JSC: I have read before now, in draft, the judgment delivered by my learned brother Aderemi, JSC. I agree entirely with his reasoning and conclusion. For the reasons

 

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given, I, too, dismiss the appeal and abide by all the consequential orders made therein including the order as to costs.

 

  1. M. MUKHTAR, JSC: Six issues for determination of this appeal were raised in the appellant’s brief of argument to cover eight grounds of appeal. In their joint respondents’ brief of argument, a single issue for determination was raised. The issue is:-

 

“Whether the appellant is entitled to all the reliefs claimed by him at the High Court upon the determination of his appeal by the Court of Appeal when pleadings had not been filed and exchanged and no evidence has been led at the High Court.”

 

The issues in the appellant’s brief of argument are so unwieldy that I tend to think that some of them are unnecessarily belabouring the essence of the appeal. I think a single issue in the respondents’ brief of argument supra would have sufficed for the purpose of this appeal, or in the alternative, an issue that reads as follows :-

 

“Whether it was right for the learned Court of Appeal to have gone to the extent of making the findings it made in the judgment (in the circumstance of the case), other than the one that may lead to the order ultimately made.”

 

After filing the plaintiff/appellant’s processes against the respondents, the respondents filed and moved a motion on notice for the following at the trial court:-

 

“1. an order dismissing suit No. AB/55/2000 in limine on the following grounds:-

 

  1. a) lack of jurisdiction;

 

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  1. b) the action is statute barred.”

 

The whole gamut of the argument on the motion in the High Court of Ebonyi State is centered on the jurisdiction of the court to entertain the suit before it, and this the learned trial judge considered and came to the conclusion that his court had no jurisdiction to hear the suit. On appeal to the Court of Appeal, Enugu division, the learned Justice who wrote the lead judgment decided to go into a deep consideration of the case itself, when pleadings have not been completed, basing his findings on the plaintiff/appellants processes, and the affidavits before the court. The court below definitely went too far in his determination of the appeal before the court. He should have confined himself to the issue of jurisdiction that was at stake, and not go into the detailed appraisal of what was before the court, which inevitably led to the findings he made.

 

At any rate he eventually made the correct order at the end of the day, and it is my view that the treatment of the argument that revolved around the order should have sufficed. In this wise, I believe he was in order when he held as follows at the end of his judgment:-

 

“The result is that I set aside the Ruling of the court below dismissing the plaintiffs claim. The lower court has jurisdiction to hear and determine the suit. It shall be heard on the merit by another judge of the Ebonyi State High Court of Justice other than Inya – Agha J.”

 

I agree with the above order and endorse and affirm it. In the light of this contribution, I agree completely with the conclusion in the lead judgment of my learned brother Aderemi, JSC. I abide by the consequential orders made therein.

 

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W.S.N ONNOGHEN, JSC: The appellant caused a writ of summons to be issued against the respondents claiming the following reliefs:-

 

“(1) A declaration that the third defendant’s letter with reference NO. EBS/CSC/S.009/1/22 dated 5th May, 1999 but delivered to the plaintiff on the 2nd of June, 1999, purporting to retire the plaintiff with effect from 1st May, 1999 is ultra vires the second defendant and or the third defendant and therefore is invalid, null, void and of no effect whatsoever.

 

(2) A declaration that the plaintiff was and is still a Permanent Secretary in the Civil Service of Ebonyi State Government of Nigeria and is entitled to all his emoluments including salaries, wages, overtime, leave allowances, commissions, fees, gratuity, benefit, advantages (whether or not that advantage is capable of being turned into money or money’s worth) allowances, pensions, loans or annuity paid; given or granted in respect of his office as a Permanent Secretary.

 

(3) An order reinstating the plaintiff as a Permanent Secretary in the Ebonyi State Civil Service.

 

(4) A declaration that the plaintiff is the occupier of and is entitled to the possession and occupation of four (4NO.) Bedroom Executive Bungalow with Appurtenances Situate at NO. S. 11 Ezza Road, GRA, Ababkaliki, Ebony State pursuant to the Ebonyi State Government letters (a) NO. SGE/ETB/69/36 dated 4th February, 1999 otherwise known as Establishment Circular NO. 2/1999 and (b) NO. SGE.ETB/0017/185 dated 4th May, 1999.

 

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(5) An injunction restraining the defendants or any of them by themselves, their servants, agents, associates, privies and/or cohorts from further disturbing the plaintiff’s quiet possession and occupation of the Four (4 NO.) Bedroom Executive Bungalow with Appurtenances Situate at NO S. 11 Ezza Road, GRA, Abakaliki, Ebonyi State or otherwise ejecting or taking any further steps to eject the plaintiff from his said residential quarters of Four (4 NO.) Bedroom Executive Bungalow with Appurtenances Situate at NO S. 11 Ezza Road, GRA, Abakaliki, Ebonyi State.

 

(6) An Order that the defendants do pay or cause to be paid to the plaintiff:-

 

(i)  The sum of N504,000.00k (Five Hundred and four thousand naira) being the plaintiffs personal emoluments from the 1st day of May, 1999 to the 30th day of April, 2000, and continuing.

 

(ii) The Nl60,000.00k (One hundred and sixty thousand naira) being the plaintiffs out-of-pocket expenses in respect of maintenance and running costs of his official Peugeot Saloon Car with Registration or Index Number EBO4A09 which was incurred by the plaintiff prior to the purported retirement to with 1st of May, 1999.

 

(iii)         The sum of N95,040.00k (Ninety-five thousand and forty naira only) being the equivalent of £576.00 (Five hundred and seventy-six British Pound Sterling) converting at N165,000 to £1 (One pound) being cost of medical out-of-pocket expenses incurred by the plaintiff while on official duty in London in May, 1999.

 

(iv)         The sum of N255,000.00 (Two hundred and fifty-five thousand naira) being out-of-pocket expenses in respect of maintenance and running costs of the plaintiffs official Peugeot Saloon Car with Registration or Index Number EBO4A09 from the 1st of May, 1999 to 30th April, 2000 and continuing.

 

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(v) Housing loan of’Nl,500,000.00k (One million, five hundred thousand naira) to the plaintiff on the same terms and conditions as granted to other Permanent Secretaries in the Ebonyi State Civil Service by the second defendant to the plaintiff.

 

(7) An order that the first defendant do forward or cause its appropriate arms forwardt the plaintiff s application for lateral transfer of service to the Federal Government for necessary action.

 

(8) A declaration that the said purported letter of retirement if held valid can only be effective from 2nd day of June, 1999, the date it was delivered to the plaintiff, or 5th day of May, 1999, the date it was written but not 1st day of May, 1999.

 

The facts relevant to the determination of the appeal are not in dispute. They include the following: The appellant was a civil servant who at the relevant time was of the rank of Permanent Secretary in the service of the Government of Ebonyi State. By a letter dated 5th May, 1999, the appellant was retired from the service of the said Government of Ebonyi State pursuant to the provisions of the now notorious section 1(1) of the Public Officers (Special Provisions) Act, Cap 381, Vol. XXI, Laws of the Federation of Nigeria, 1990 which has since been repealed. The instant action was instituted by the appellant to challenge the said retirement.

 

Upon being served with the writ of summons, the defendants/respondents filed a motion on the 27th day of April, 2000 praying the trial court for:

 

“An Order dismissing Suit. NO. AB/55/2000 in limine on the following grounds:-

 

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(a) Lack of jurisdiction,

 

(b) The action is statute barred”.

 

It is important to note that at the time the objection to the jurisdiction of the trial court was raised, the plaintiff/appellant had filed no statement of claim neither did the defendants file a statement of Defence to the action. In fact, that position between the parties subsists to this day.

 

However, the trial court, after hearing the arguments on the objections, sustained same in a considered ruling and dismissed the claim of the plaintiff which resulted in an appeal to the Court of Appeal, holden at Enugu which appeal was allowed by that court in a judgment delivered on the 15th day of May, 2003 in favour of the appellant. The court remitted the matter to the trial court for hearing and determination on the merit. The appellant is not satisfied with the aspect of the judgment remitting the case for hearing, hence the instant appeal to the Supreme Court, where six issues have been identified by learned counsel for the appellant, Osuu S.C Oduko Esq, who appears in person, in the appellant’s brief of argument filed on the 6th day of October, 2005, as follows: –

 

“1.  What is the future effect on the suit whose cause of action, a retirement order, was declared nulled and void for want of authority? (Grounds 1 and 2.

 

  1. In action challenging an order issued in pursuance to an enabling Act, what should be the ingredients in the proceeding that will result in a trial on the merits (Ground 3).

 

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  1. What should be the proper order, substantive or consequential, that should naturally flow from a judgment, which has declared the cause of action a nullity and lacking of legal force (Ground 4).

 

  1. Was the Court of Appeal right in speculating on evidence to back up their Lords’ order of retrial on the merit when the order was not necessary to achieve substantial justice but merely to concede the trial court the reason for his (sic) action rather than ascertaining whether his (sic) decision was right or wrong which unnecessarily prolonged the suit rather than end it (Grounds 5,6 & 7).

 

  1. Granting that the Court of Appeal ordered the retrial in compliance with Order 234 of the Imo State High Court (Civil Procedure) Rules, 1988, applicable to Ebonyi State pursuant to which the jurisdiction of the trial court was questioned, was the Court of Appeal right to order retrial as a privilege to the respondents to adduce evidence on facts having not been able to establish grounds to dismiss the appellant’s suit when such a privilege has been vitiated by.-

 

(i) the Court of Appeal declaring the cause of action null and void and of nom effect;

 

(ii) the cause of action having no legal root having been issued after the enabling Act had been repealed and cannot be a subject of retrial;

 

(iii) the respondent having statutory immunity not to give reason for removing a public officer (in the absence of i & ii above) but to rely on the authority of the enabling Act (see Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt 135) 688 at P. 724 Paras. G-H) have not the necessity to give further evidence of facts; and,

 

(iv)         by the doctrine of stare decisis observed in this country, there is no evidence that will be given at the High Court that will set aside the decision of the Court of Appeal in

 

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respect of the cause of action declared null and void, it is unnecessary to require the respondents to adduce further evidence of facts (Ground 8).

 

  1. Given the circumstances of the case, the evidence on the record and the judgment of the Court of Appeal, is the appellant entitled to reinstatement payment of his salaries, allowances and granting of other emoluments (Ground 9).

 

On the other hand, learned counsel for the respondents, the then A-G of Ebonyi State, Nwokpor Vin. Nduka, Esq, in the respondents’ brief filed on the 12th day of April, 2006, identified a single issue for the determination of the appeal.

 

The issue being:

 

“Whether the appellant is entitled to all the reliefs claimed by him at the High Court upon the determination of his appeal by the Court of Appeal when pleadings had not been filed and exchanged and no evidence has been led at the High Court”.

 

I am of the considered view that the issue formulated by the learned counsel for the respondents represents the real issue in controversy between the parties having regards to the facts of the case and the decisions of the lower courts. The issues formulated by the appellant are not only prolix but too generalized thereby making them hypothetical when put side by side with the facts of the case and the decisions on appeal, particularly as at the stage the objection was raised pleadings had neither been filed nor exchanged between the parties let alone evidence adduced before the court.

 

It follows therefore that for the purpose of this judgment, the issue to be considered by me is as formulated by the learned counsel for the respondents and reproduced supra.

 

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In arguing the issue, learned counsel for the appellant submitted that the lower court having held that the letter of retirement is a nullity as the same was not authorized by the appropriate authority, the court in effect declared the letter of no effect and as such it was wrong for that court to order that the matter be remitted to the trial court for retrial since there is no longer anything to be retried; that the lower court, having found as stated above should have entered judgment for the plaintiff/appellant in terms of the claim before the court and consequently urged the court to invoke its powers under section 22 of the Supreme Court Act, and Order 8 Rule 12(2) and (5) of the Supreme Court Rules to grant the reliefs.

 

On the other hand, learned counsel for the respondents submitted that the appellant is in error in arguing that since his appeal at the Court of Appeal succeeded, he is entitled to judgment on his claim; that since the preliminary objection failed the proper thing is for the case to proceed to trial on the merit; that any judgment given to the appellant as urged at this stage will amount to a miscarriage of justice as the defendants will be denied the opportunity of presenting any defence or counter claim in defence of the action and urged the court to resolve the issue against the appellant and dismiss the appeal.

 

It is not disputed that at the time the preliminary objection was filed and argued, no statement of claim and defence had been filed in the action let alone evidence taken in the proceedings.

 

The proceeding was initiated by a writ of summons, not originating summons or motion supported by affidavit. The affidavit evidence used in the determination of the objection raised was filed in support of or to counter the said objection and had nothing to do with the merit of the case to be determined at the appropriate stage.

 

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It follows therefore that the objection was purely on whether the trial court had the jurisdiction to entertain the suit as constituted having regards to the provisio

 

 

 

 

COUNSELS

 

Appellant appeared in person

 

Chief Jossy Eze, Attorney-General, Ministry of Justice, Abakaliki, Ebonyi State for the Respondents

with him, Mr. S. U. Ena, Deputy Director of Civil Litigation, Ministry of Justice, Abakaliki, Ebonyi State.

 

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