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1990 3 NWLR (PT. 140) 525
MICHAEL EKUNDAYO OGUNDARE,
AKINTOLA OLUFEMI EJIWUNMI, JJ.C.A.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
ACTION ‑ Justiciability of an action ‑ How determined
EVIDENCE ‑ Facts not pleaded ‑ Evidence led thereon ‑ How treated
JURISDICTION ‑ Preliminary objection to jurisdiction of court ‑ How and when determined
PRACTICE AND PROCEDURE – Justiciability of an action ‑ How determined
PRACTICE AND PROCEDURE ‑ Pleadings ‑ Evidence on facts not pleaded ‑ How treated
PRACTICE AND PROCEDURE ‑ Preliminary objection on point of law ‑ Procedure for determination thereof
PRACTICE AND PROCEDURE ‑ Preliminary point ‑ When does a point cease to be so ‑ How
OGUNDARE, J.C.A. (Delivering the Leading Judgment): Following the dismissal of the appellant herein from the Civil Service of Ondo State by the State Civil Service Commission, he instituted the action leading to this appeal against the respondents claiming by paragraph 26 of his Statement of Claim as follows:
“The particulars of Damage suffered and now being claimed by the plaintiff are hereunder stated as follows:
(a) Salary for the unexpired period of service from 1985 ‑ 2003 at 8,6810 per annum N156,276.00
(b) Gratuity payable on retirement age 300% of N8,682.) 26,046.00.
(c) Housing Allowance for 18 years 11,580.00
(d) Annual Leave outstanding to be commuted to money 1,432.00
Total Amount claimed N495 ,334.00k”.
The respondents filed a joint statement of defence and raised in paragraph I thereof, an objection to the effect that the action was not justiciable.
Paragraph 1 reads:
“i. In answer to all plaintiff’s claims the defendant will at the trial of this suit raise byway of preliminary objection on point of law that the plaintiff’s action is not justiciable by virtue of the provisions of Sections 1, 2 and particularly 3(3) of the Public Officers (Special Provision) Decree, 1984 ‑ Decree No. 17.
PARTICULARS OF SPECIAL DEFENCE
(a) The plaintiff was a public officer who was dismissed from the service of the Ondo State Government on 4th December, 1985 as his further or continued employment was considered not to be in the public interest.
(b) The plaintiff knew that the disciplinary action taken against him was at the instance of the 1st defendant ‑ The Ondo State Military Governor
(c) The plaintiff knew that the Ondo State Civil Service Commission only acted as the agent of the 1st defendant in effecting the dismissal of the plaintiff. The relevant directives from the 1st defendant would be relied upon at the trial.”
When the case was set down for hearing and trial was to begin, defence counsel raised a preliminary objection as indicated in paragraph 1 of the statement of defence. In a short address, learned counsel submitted that by virtue of Section 3(3) of the Public Officers (Special Provisions) Decree, 1984, the dismissal of the plaintiff did not come within the court’s jurisdiction. Then followed this statement in the court’s notes for the day “witness to prove point of law.
Thereupon a witness, Isaiah F. Adetola, Senior Executive Officer, Ministry of Establishment and Training, Governor’s Office, was called to testify. He was, as disclosed in the subsequent ruling led in evidence by the learned Deputy Solicitor‑General, Mrs Onifade, who appeared as counsel for the defence. The witness was not questioned and further hearing was adjourned.
I need mention at this stage that prior to the proceedings of 12/1/87 mentioned above, counsel for the defence had filed a notice of preliminary objection. The notice reads:‑
“NOTICE OF PRELIMINARY OBJECTION ON POINTS OF LAW.
TAKE NOTICE, that the counsel to the 1st and 2nd Defendants intend to raise preliminary objection that:
(a) The 1st and 2nd defendants are not necessary parties in this suit.
(b) The relevant or necessary parties are not before the court.
PARTICULARS OF THE OBJECTION
(a) The plaintiff’s claim as endorsed on the writ of summons and his averments as contained in the statement of claim disclose no reasonable cause of action and sought no relief against the Defendants either severally or jointly.
DATED AT AKURE, THIS 9TH DAY OF JANUARY, 1987”
It would appear that when the trial of the suit commenced on 12/1/87 the preliminary objection raised in the above notice was pursued with, as nothing further was mentioned in respect thereof.
On 5/2/87 to which further hearing had been adjourned of l 12/1/87 two more witnesses were called to testify and were led in evidence by defence counsel. The two witnesses were Samuel Olaiya Oni, the Head of Service! B SMG ‑ he was cross‑examined by plaintiff’s counsel; and Samuel Ola Ojo, an administrative officer in the Civil Service Commission who was not cross‑ examined by Mr. Bello of counsel for the plaintiff. The two witnesses were referred to in the court’s notes “as witnesses for preliminary objection.” I need mention that the first witness tendered two documents marked Exhibits A and B whilst the second witness tendered Exhibit Cl and C2 and D. Further hearing was again adjourned to 16/2/87 when learned counsel for the parties addressed the court. It would appear from the record that the plaintiff was not called upon to testify or lead evidence in his own support on the preliminary point of law.
In a ruling delivered on the 12/3/87 the learned trial Chief Judge, after referring to the three witnesses called by the defence in support of the preliminary point of law raised in paragraph 1 of the Statement of Defence, held that the jurisdiction of the court to question the dismissal of the plaintiff was ousted by Section 3(3) of the Public Officers (Special Provisions) Decree, 1984. It is against this ruling that the plaintiff has now appealed to this court upon the following three grounds of appeal, to wit:-
“(1) The learned Chief Judge erred in law by declining jurisdiction to entertain the plaintiff’s claim on the grounds that the jurisdiction of the court had been ousted by the provisions of section 3(3) of the Public Officers (Special Provisions) Decree 17 of 1984.
(2) The learned Chief Judge erred in law by basing his decision to decline jurisdiction on inadmissible evidence; to wit: Exhibits B, C, Cl, C2 and D which were not pleaded and therefore could not F have gone to any issue.
(3) The learned Chief Judge erred in law in his ruling by holding that the Civil Service Commission of Ondo State is an appropriate authority in the context of the Provisions of Decree 17 and therefore a proper authority or organ to dismiss the appellant notwithstanding the absence of any expressed delegation or authorisation of the exercise of such powers by the Governor who is designated as the appropriate authority by the Decree and also in the absence of communication of such authorisation on delegation to the appellant”.
In the notice of appeal, the relief sought is to the effect that the said ruling be set aside and the case be remitted to the High Court to be tried on its merits.
In accordance with the rules of this court the parties filed and ex‑ changed their respective briefs of argument. A notice of preliminary objection filed by learned counsel for the respondents was not pursued with and was accordingly struck out. At the hearing of the appeal before us Mr. Bello for the plaintiff/appellant relied on his brief and only added two other authorities that is Civil Service Commission v. I. Okonjo (1987) 3 N.W.L.R. (Pt .59) 166 and S. Garbo v. Federal Civil Service Commission & Anor (1988) I N.W.L.R(Pt.71) 449; (1988) 19 N.S.C.C. 306. He urged the court to allow the appeal and remit the case to the court below for trial on its merits. Mr. Onipede, learned Senior State Counsel for the defence also relied on his brief. He conceded it, however, that the trial Chief Judge on a preliminary objection such as was raised in the court below in the present case could only look at the plaintiffs statement of claim in determining the objection. To a question by the court the learned Senior State Counsel further conceded it that the trial Chief Judge could not call evidence, as he did, to determine such an objection. He nevertheless urged the court to dismiss the appeal.
In the appellant’s brief the following two questions are set down for determination:
The two issues are re‑phrased in the respondents’ brief as follows:‑
“2.1 Whether a preliminary objection on point of law once taken by the Court, despite that it has specifically been pleaded, could not be argued with all necessary supporting evidence documentary or otherwise.
2.2 Whether or not there has not been strict compliance with the Provisions of Decree No. 17 before the letter dismissing the Plaintiff/Appellant from service was issued by the appropriate bodies as directed by Governor ‑ see the case of Saidu Garbo v. Federal Civil Service Commission & Anor. (1988) 1 N.W.L.R. (Pt.71) 449 ‑ 480.
2.3 Whether or not the trial Chief Judge was not right in his ruling in favour of the Defendants/Respondents”.
I will deal first with the issue one as contained in the two briefs.
I have examined carefully the arguments on this issue as contained in the two briefs. The preliminary objection raised in paragraph 1 of the statement of defence could only be determined at the stage it was taken by reference to the pleadings particularly the statement of claim. Once the learned trial Chief Judge found he could not determine the issue on the pleadings that were before him, he ought to proceed to the full trial of the case and decide the point after evidence might have been led. It ceased to be a preliminary point if the point could not be decided without evidence being led; it is indeed a defence to the action. The justiciability of an action is decided, as a preliminary point, with reference to the plaintiffs pleadings, that is, the statement of claim –
see: Shell‑BP Petroleum Development Co. of Nigeria Ltd. & 5 Ors. v. M.S. Onasanya (1976) 6 S.C. 89, 94.
Order 23 rule 2 of the High Court (civil Procedure) Rules of Ondo State (Cap.45) in force at the time of the hearing in the court below provided:‑
“Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial:
Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.”
The general law is that jurisdiction is determined by the nature of the plaintiff’s claim. It is therefore the statement of claim of the plaintiff that is to be looked at to determine whether or not the court had jurisdiction ‑ see Chief Numogun Sam Adeyemi v. Opeyori (1976) 9‑10 S.C. 31, 49, where ldigbe, J.S.C., delivering the judgment of the Supreme Court said:
“It is well known that jurisdiction is determined by the nature of the plaintiff’s claim….”
I have examined the statement of claim in this case. I can find nothing in it which raises ex facie an issue which can possibly be regarded as bringing the case within the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 (hereinafter is referred to as the Decree). The defendants/respondents raised in paragraph 1 of their statement of defence an objection to the justiciability of the appellant’s action, although in effect, it was being F challenged. Nowhere in the appellant’s statement of claim did he admit sub-paragraph (b) and (c) of the “particulars of special defence” contained in the said sub‑paragraph 1 of the statement of defence. In a situation such as this, in my respective view, the proper procedure to be adopted is as laid down by the Supreme Court in Barclays Bank of Nig. Ltd. v. Central Bank of Nig. (1976)6 S.C. 175, 193 where Fatayi‑Williams, J.S.C. (as he then was) said:‑
“It, therefore, follows that before the learned President of the Federal Revenue Court can determine whether or not the court has jurisdiction to entertain the claim, he must first of all examine what the plaintiffs/appellants contended to be their undischarged liabilities to their customers and determine, after pleadings have been delivered and evidence adduced in support of the facts pleaded, whether these undischarged liabilities relate to banking obligations, and, if they are, whether they are banking obligations which have been extinguished. In our view, it is only after he has determined that these obligations have been extinguished that he can rule that the court has no jurisdiction to order the refund asked for in the originating summons.
Since the learned President has not followed this procedure, we think that his ruling on the issue of jurisdiction is premature.”
There is no doubt that evidence would need to be led to establish subparagraph (b) ‑ (c) in order to bring the case within the ambit of the Decree.
In doing so, the learned trial Chief Judge would only have to go by the pleadings before him; he should not have allowed evidence to be led on any fact not pleaded to. It is trite law that evidence on a fact not pleaded goes to no issue. Paragraph 2 of the statement of defence reads:
“2. In the alternative to paragraph 1 above the defendants admit the averments in paragraphs 1,2,3,4,8,9, 10, 11, 13, 14, 15 and 16 of the statement of claim and will contend farther as follows:-
(i) The defendants admit the averment in, paragraph 6 of the statement of claim but will at the trial state further that the provisions of the Ondo State Public Service Regulations now have effect subject to the provisions of the Public Officers (Special Provisions) Decree, ‘984.
(ii) The defendants deny the averments in ,paragraphs 17 and 18 of the Statement of Claim and put the plaintiff to the strictest proof thereof.
(iii) In further answer to the averments in paragraphs 17 and 18 of the Statement of Claim the defendants state as follows:-
(a) That on or about the 26th September, 1985 the plaintiff was accused of being involved into the leakage of Government Secret.
(b) That the plaintiff along with two other suspects were handed over to the police by the 1st defendant for proper investigation and prosecution if necessary.
(c) That the plaintiff was as a result of the above interdicted in compliance with the directives of the 1st defendant. Letter No. CSI4/ 12 of 8th October, 1985 from the Governor’s Office to the Civil Service Commission Akure is hereby pleaded.
(d) That the Police conducted their investigation into the case against the plaintiff, sought and obtained the legal’ advice of the Ondo State Attorney-General of whether or not to prosecute the plaintiff for an offence under Section 3 of the Official Secrets Law Cap.75 Laws of Ondo State, 1978. Letter No. 1O/S6097/26 of 15th November, 1985 from the Department of Public Prosecutions, Akure, addressed to the Assistant Commissioner of Police Akure is hereby pleaded.
(e) That since the 2nd defendant declined to give consent for the prosecution of the plaintiff, the 1st defendant directed the Ondo State Civil Service Commission to take disciplinary action against the plaintiff for the grave misconduct alleged against him.
(iv) The defendants will contend in answer to paragraph 19 of the Statement of Claim that the appropriate procedure was followed by the Ondo State Civil Service Commission to effect the dismissal of the’ plaintiff notwithstanding the directive of the 1st defendant given in accordance with the powers conferred on him by the provisions of Decree No. 17 ‑ Public Officers (Special Provisions) Decree 1984, hereinafter referred to simply as Decree No. 17
(v) The defendants will also contend at the trial of this suit that it was within the competence of the 1st defendant to take disciplinary action against the plaintiff by himself or by somebody authorised by him in accordance with the provisions of Section 4(2)(i) of Decree No. 17 and that the 1st defendant had so authorised the Civil Service Commission before the plaintiffs letter of dismissal No. C. 10,007/23 of 4th December, 1985 was communicated to him.
(vi) The defendants state that the Civil Service Commission only acted as the agent of the 1st defendant in effecting the dismissal of the plaintiff from the Ondo State Civil Service. All relevant documents to this effect are hereby pleaded.
(vii) In answer to paragraph 25 of the statement of claim the defendants will contend that the Ondo State Government did not bargain to retain the plaintiff in his service until he reaches the retiring age.
(viii) The defendants deny the plaintiffs claims in paragraph 26 of his statement of claim and will at the hearing of this action aver further that the different items of claim are highly speculative and misconceived.”
With profound respect to the learned trial Chief Judge, the procedure adopted by him in this matter is highly irregular. Not only did he take evidence from the defence first but also failed to call on the plaintiff to give his own side. He equally admitted in evidence facts not pleaded to by either party. For instance, Exhibit ‘B’ was never pleaded, what was pleaded was different ‑ see paragraph 2(iii)(c) and (iv) of the statement of defence. If he was satisfied that on the statement of claim the objection raised in the statement of defence could not be sustained without evidence, he should have proceeded to the trial of the action and after evidence had been led on both sides, decide whether appellant’s case came within the ambit of the Decree. It is only then that he can rule that his court’s jurisdiction is ousted by the Decree. His ruling on the issue of jurisdiction, to use Fatayi‑Williams, J.S.C. ‘s, words, “is premature.”
Finally, it is my respectful view that this appeal succeeds and it is allowed, the decision of the court below together with the order for costs is hereby set aside; it is ordered that the case be remitted to the court below for hearing and determination before another Judge. The Judge before whom the hearing is conducted is at liberty to pronounce on the issue of jurisdiction raised by the defendants. The appellant is entitled to the costs of this appeal which I assess at N400.00 inclusive of out‑of‑pocket expenses. The costs of the abortive trial shall abide the result of the trial herein ordered.
MUSDAPHER, J.C.A.: I have had the preview of the judgment of my Lord Ogundare, J.C.A., just delivered. I agree with him that the learned trial Chief Judge had adopted a highly irregular and illegal procedure in his determination of the preliminary objection raised by the respondents as to the jurisdiction of the court to deal with the substantive matter. For the reasons contained in the aforesaid judgment which I adopt as mine, I too do hereby allow the appeal and set aside the decision and order of the court below. In its place I order that the case be remitted to the Ondo State High Court there to be determined by another Judge. The respondents may, if they so wish, yet raise the issue of jurisdiction for a proper pronouncement by the Judge. I agree with the order for costs proposed.
EJIWUNMI, J.C.A.: Having been privileged to have read the draft of the judgment just delivered by my brother, Ogundare, J.C.A., I find myself in entire agreement with his reasoning and the conclusion reached thereon. I do not have anything further to add, and I also allow the appeal.
In the result, I also abide with all the consequential orders made in the lead judgment.