3PLR – IGP V. AIGBIREMOLEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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IGP
V.
AIGBIREMOLEN
COURT OF APEAL
3PLR/1999/52 (CA)
OTHER CITATIONS
13 NWLR (Pt.635) 443
BEFORE THEIR LORDSHIPS:
AKINTAN, JCA
BA’ABA, JCA
IBIYEYE, JCA
REPRESENTATION
- A. Akooh – for appellants
- O. Udaze for the Respondent
MAIN ISSUES
EMPLOYMENT AND LABOUR
PRACTICE AND PROCEDURE
– Discontinuation of action (Proper order to make)
– Exclusive jurisdiction of Fed. High Ct. over Fed Govt. & Its agencies
– Striking out & Dismissal (Distinction between)
– Issues of jurisdiction
{Facts}
Respondent was compulsory retired from the police with effect from 23rd September, 1993 and this was communicated to him in a dated 15th October, 1993. It was alleged that the respondent was queried for acts of misconduct on 23rd March, 1992 and he refused to defend himself against any of the allegations which were considered along with the query served in him. The respondent was found culpable and was therefore compulsory retired from the force under Decree No. 17 of 1984.
Appellant appealed that the decision to compulsorily retire him be reversed but his request was rejected. He then instituted an action at the High Court praying the court for a declaration that his compulsory retirement as Superintendent of Police from the Nigeria Police Force and the rejection of his appeals for reinstatement were irregular, unorthodox and of no effect; a declaration that the respondent is still a member of the police force. He also claimed special damages for unpaid salaries and other allowances.
Appellants did not enter any appearance nor file any pleadings in defence of the action.
Respondent filed a motion praying the court to enter judgment in default against the appellants for failure to enter appearance and or file pleadings. The motion was subsequently moved and granted as prayed.
The court held that the respondent’s retirement from the police force was null and void and of no effect: that the respondent was still a member of the Nigeria Police Force and is entitled to his salaries, emoluments and allowance without deductions and he is promotions or in the alternative that he is to be paid the sum of N2.5 million being special damages by way of unpaid salaries, emoluments, allowances and general damages.
Appellants then filed a motion to strike out the action against them for lack of jurisdiction. The trial court on the request of the respondent’s counsel dismissed the motion after the failure to turn up on repeated adjourned dates.
The appellants were aggrieved by the judgment and the order dismissing their motion, and appealed to the Court of Appeal.
{Issues}
- Whether the respondent’s claim comes within the matters of which the Federal High Court has exclusive jurisdiction.
- Whether the trial court was right in dismissing the appellant’s motion when in fact the matter was yet to be heard in full before the court.
{Held – Summary}
Unanimously allowing the appeal
- By section 230(1)(s) of the Constitution of the Federal Republic of Nigeria, 1979, as amended, exclusive jurisdiction was conferred on the Federal High Court in actions or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The proviso to the provision however excludes actions aimed at a person seeking redress against the Federal Government or any of its agencies in actions for damages, injunction or specific performance where such is based on any enactment, law or equity.
2 The issue of jurisdiction is so fundamental that it forms the foundation or pivot of adjudication. Thus, if a court lacks jurisdiction, it automatically lacks the necessary competence to try the case at all.
- In order to ascertain whether or not a court has jurisdiction to try a claim, the court only needs to look at the plaintiff’s claim. This is so because it is the claim of plaintiff that determines the jurisdiction of the court entertaining the suit.
- Where a court lacks jurisdiction to entertain a claim before it, the proper order which the court could make in such a situation is one striking out the claim.
- When case is withdrawn or discontinued for one reason or the other after commencement of trial, the proper order to make it is dismiss the suit or case and not merely to strike it out.
- There is a clear distinction between striking out and dismissing an action. Whereas a matter struck out can be resuscitated, a matter dismissed cannot generally be resuscitated. Also, while pleas of res judicata or estoppel per rem judicatam will apply to a matter dismissed, such will not be applicable to a case struck out. In other words, an order of dismissal puts an end to the matter while an order striking out or non-suit keeps the matter alive.
Lead judgement Delivered by Akintan JCA
The respondent, Francis O. Aigbiremolen, was until 15/10/93, a Superintendent of Police. The 2nd appellant, the Nigeria Police Council, was his employer; while the 1st appellant, the Inspector-General of Police, was the head of the Nigeria Police Force and the 3rd respondent is the Chief Law Officer of the Federal Government of Nigeria. The respondent was compulsory retired from the police force with effect from 23rd September, 1993 and this was communicated tom him in a letter with reference No. P.6417/120 dated 15th October, 1993. The letter reads, inter-alia, as follows:-
“Mr. Francis O. Aigbiremolen, S.P U.F.S.
Assistant Inspector-General, Zone 5 Headquarters, Benin City.
Letter of Compulsory Retirement
“You were queried for acts of misconduct on 23rd March, 1992.
Your refusal to defend yourself against any of the allegations have been considered along with the query served on you but found not to have in any way exculpate you from blame. In the circumstance, it has been decided that you be compulsory retired from the Force under Decree No. 17 of 1984 with effect from 7th September, 1993.
The authority to retire you from the Force is derived from the instrument of authority conferred on me by the Head of State and Commander-in Chief of the Armed Forces as the appropriate authority and as contained in the instrument of delegation given and issued on the 6th day of July, 1989.
You are to surrender all government properties in your possession, including Police Warrant Card, fire-arm etc, to the appropriate authority.
(Sgd.) Ibraham A. Commassie, NPM, MNI, Inspector-General of Police.”
The respondent, upon receipt of the above letter wrote two letters dated 1/11/93 and 24/1/94 respectively in which he appealed that the decision to compulsorily retire him be reversed. But his plea was rejected and this was communicated to him in a letter dated 3/3/94. When all further efforts made by the respondent to have a reinstatement yielded no result, he decided to institute the present action at Ekpoma High Court in Edo State as Suit No. HEK/29/94.
The plaintiff’s claim as endorsed in paragraph 11 of his statement of claim is as follows:
“(a) A declaration that the compulsory retirement of the plaintiff as superintendent of police from the Nigerian Police force as contained in the 1st defendant’s letter of 15/10/93 and the defendant’s rejection of plaintiff’s appeal(s) for re-instatement were irregular, unorthodox, wrongful, null and void, against the rules of Natural justice; are not commensurate with the alleged offence(s) or misconduct(s) committed by the plaintiff and are of no effect whatsoever.
(b) A declaration that the plaintiff is still a member of the Nigerian police force and is accordingly entitled to his salaries, emoluments, allowances and promotions without deduction(s) or reduction whatsoever.
(c) The sum of N129,819 being special damages for unpaid salaries and other allowance at the rate of N33,636 and N22,000.00 per annum respectively from October, 1993 to January, 1995, a period of 28 months.
(d) Salaries and other allowances from February, 1995 till date of Judgment at the rate of N33,636 and N22,000.00 per annum respectively.
The writ of summons was dated 3rd of June, 1994 but was issue on 15th June, 1994. The respondent, as plaintiff, filed his statement of claim dated 5/2/96 and filed on 7/2/96. None of the appellants, as defendants, entered any appearance and none of them file any statement of defence to the action. The plaintiff thereafter filed a motion dated 27/3/96 in which he prayed the court for an order –
“entering judgment by default against the defendants/ respondents herein for failure to enter appearance and or file statement(s) of defence.”
The motion was supported by a 12 paragraph affidavit deposed to by the plaintiff. The matter thereafter came up for hearing before Hayble J. sitting at Ekpoma high Court on 7/5/96. The defendants were however not represented by any counsel at the hearing on that day. The motion was however moved by learned counsel for the plaintiff and the court then adjourned the case to 7/6/96 for judgment The learned trial Judge delivered his said judgment on 7/6/96 as he had earlier indicated. In it, he said, inter-alia, as follows:-
“I have considered very carefully this application, the affidavit evidence in support as well as the submission of learned counsel. The record shows that plaintiff/applicant filed his statement of claim on 7/2/96.The writ and statement of claim were served on defendants at Abuja and Lagos on 14/2/96 and 15/2/96 respectively.
Since the filling of those papers the defendants have not deemed it necessary to file memorandum of appearance and statement of defence to this suit. There is therefore no other interpretation than that they are not interested in defending this action. The court should not prevent plaintiff/applicant from enforcing its right under the law. I am satisfied that the applicant has proved its case on its affidavit evidence which was not controverted.”
He then concluded by entering judgment for the plaintiff by declaring,
“(1) that the plaintiff’s retirement from the Police Force was null and void and of no effect;
(2) that the plaintiff is still a member of the Nigeria Police Force and is entitle to his salaries and emoluments and allowance without deductions and he is entitled to his promotions; or in the alternative;
(3) he is to be paid N2.5 million being special damages by way of unpaid salaries, emoluments, allowances and general damages from 7/9/93 till today.”
The defendants (now appellants) reacted to the above judgment of the court by filing a motion dated 17/7/96 in which they prayed the court for the following orders:
“1. Striking out the action against the defendants/applicants for lack of jurisdiction;
- Declaring as null and void the judgment of this court delivered on 7th June, 1996 in this matter as the said judgment was delivered without jurisdiction.”
The motion was supported by a 5 paragraph affidavit sworn to by one Victor Samuel, of the Police Affairs Office. The main facts relied on are contained in paragraph 4 of the affidavit. It is averred therein that:
“Mr. J. A.. Akooh, counsel handling this matter on behalf of the defendants/applicants informed me and I verily believe him that this Honourable Court’s jurisdiction over this matter has been affected by the provision of the law.”
The motion first came up for hearing on 24/9/96 before the same learned trial Judge, Hayble, J. The record of proceedings for that day shows that Mr. Akooh, learned counsel form the applicants started to move the motion. He told the court that he was abandoning prayer I and would proceed only with prayer 2. At a stage in the course of his argument in support of the motion, the learned counsel had to ask for an adjournment of the proceedings so as to enable him file a further and better affidavit in support of the motion. The request was granted and further proceedings in the matter were adjourned to 8/11/96 with N300.00 costs in favour of the plaintiff/respondent. A nine paragraph further and better affidavit also deposed to by the same Victor Samuel was filled. The learned counsel for the appellants did not turn up on the adjourned date. The learned Judge therefore on the request of learned counsel for the respondent, dismissed the motion. The present appeal is therefore against the judgment and ruling of the court.
The parties filed their respective brief or argument in this court. The appellants formulated the following two issues as arising for determination in the appeal.
“1. Whether by virtue of the provisions of section 230(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 107 of 1993, the State High Courts still have jurisdiction to entertain or adjudicate on matters which touch on the administration or management and control of the federal Government or any of its agencies.
2 Whether the learned trial Judge was right when he dismissed the appellants’ motion instead of striking it out when it was not heard on merit.”
The respondent also formulated 2 similar issues in the respondent’s brief also as arising for determination in the appeal and which I do not consider necessary to reproduce here.
It is submitted in the appellants’ brief on issue No. 1, that by virtue of the provisions of section 230(1) (s) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree (No.107 of 1993), the Edo State High Court lacked jurisdiction to entertain the plaintiff’s action. It is therefore argued that the lower court ought to have struck out the plaintiff’s claim and that the court was in error when it entered judgment for the plaintiff in the matter.
Section 230(1) (s) of the 1979 Constitution as amended reds as follows:
“230(1) Notwithstanding, anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by as Act of the National Assemble or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from – (s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies:
Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
It is submitted in reply, in the respondent’s brief, that the provisions of the said section 230(1)(s) of the 1979 Constitution as amended could only be applicable to actions or proceedings for a declaration or injunction affecting the validity of any decision by the Federal Government or any of its agencies. It is argued that the offices of the 1st and 3rd appellants do not constitute the Federal Government under the subsection so as to make the respondent’s claims cognisable at the Federal High Court. It is further argued that since it is trite law that the court guards its jurisdiction jealously and accordingly only clear words are required oust the courts jurisdiction, the provision s of the said section 230(1)(s) of the 1979 Constitution as amended are said not to be clear and direct enough to warrant holding that the jurisdiction of the Edo State High Court had been ousted.
The law is settled that in order to ascertain whether or not a court has jurisdiction to try a claim, one only needs to look at the plaintiff’s claim. This is because it is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court entertainment the suit: See Izenikwe v. Nndozie (1953) 14 WACA 361; Aseyemi v. Opeyori (1976) 9 & 10 S. C. 31; Egbuziem v. N.R.C. (1994) 3 NWLR (Pt.330) 23; First Bank of Nigeria Plc. v. Jimiko Farms Ltd. (1997) 5 NWLR (Pt.503) 81; Tukur v. Governor of Gongola State (1989) 4 SWLR (Pt.117) 517; Western Steel Workers (1987) 1 SWLR (Pr.49) 284, and Mattaradona v. Ahu (1995) 8 NWLR (Pt.412) 225.
The question raised in the instant case is whether the lower trial court’s jurisdiction has been ousted by the provisions of section 230(1)(s) of the 1979 Constitution as amended. If the submission is upheld, the entire proceeding before that court, including its judgment and ruling in the case would, for the reasons given above the null and void. It is clear from the provisions of the aforementioned section 230(1)(s) of the 1979 Constitution as amended that exclusive jurisdiction has been conferred on the Federal High Court in actions or proceedings for declaration or injunction affecting the validity of any executive or administrative action for decision by the Federal Government or any of its agencies. The proviso to the provisions, however, excludes actions aimed at a person seeking redress against the Federal Government or any of its agencies in actions for damages, injunction or specific performance where such is base on any enactment, law or equity. The first question to be resolved therefore is whether the respondent’s claim comes with matter of which the Federal High court is given exclusive jurisdiction.
There are three legs in the plaintiff’s claim. In the first and second legs of the claim, the plaintiff claimed declaration that his retirement from the Police Force is null and void; and declaration that he is still a member of the Nigeria Police Force. The third leg is a claim for damages by way of plaintiff’s unpaid salaries. The plaintiff’s action was based on the decision of the defendants conveyed to the plaintiff in the letter dated 15/10/93 and titled “Letter of Compulsory Retirement.”
The letter is already reproduced above. It was clearly stated in the letter, which was signed by the Inspector- General of Police (1st defendant/appellant), that the (1st defendant) acted by virtue of the authority conferred on him by the Head of State and Commander-in-Chief of the Armed Forces as the appropriate authority. It is not in doubt that the present action was instituted against the 1st and 3rd respondents public officers in their official capacities. The plaintiff’s claim therefore would come within the exclusive jurisdiction of the Federal High Court: See Akegbejo v. Ataga, supra. This view is strengthened by the fact that the claim, as already shown above, was mainly for declarations as to the validity of some executive or administrative action or decision by the Federal Government or any of its agencies, to wit: a decision to compulsory retire the plaintiff, a police officer, by the 2nd defendant/appellant, an agency of the Federal Government.
I have no doubt therefore in holding that the claim comes within those that could exclusively be tried at the Federal High Court by virtue of the provisions of the aforementioned section 230(1)(s) of the 1979 Constitution as amended. In the result, I hold that the lower court, that is, the Edo State High Court, holden at Ekpoma, lacked jurisdiction to entertain the claim.
The position of the law is that where a court lacks jurisdiction to entertain a claim before it, the proper order which the court could make in such a situation is one striking out the claim: See Etaluku v. Attorney General Delta State (1997) 8 NWLR (Pt.516) 308; Green v. Green (1987) 3 NWLR (Pt.61) 480; Olayioye v. Oso (1969) 1 All NLR 281; Okafor v. Nnaife (1973) 1 All NLR (Pt.1) 238; and Egwu v. odunkwu (1997) 4 NWLR (Pt.501) 574. The correct order which the lower court ought to have made in the instant case should therefore be one striking out the entire claim before it since it lacked jurisdiction to entertain the claim.
In the result I allow the appeal in respect of Issue No.1.
The question raised in the second issue is whether or not the lower court was right in dismissing the appellants’ motion when in fact the matter was yet to be heard in full before the court. The facts on record that the appellants’ learned counsel had started his argument on the motion. He had in fact abandoned the first prayer of the motion before he asked for an adjournment to enable him file a further affidavit in support of the motion. His request was granted and he in fact filed the further affidavit in support. But he failed to turn up on the adjourned day, hence the court dismissed his motion.
It is settled law that there is a clear distinction between striking out and dismissing and action. Whereas a matter struck out can be resuscitated. Also while pleas of res judicata or estoppel per rem judicata will apply to a matter dismissed, such will not be applicable to case struck out. In order words, an order of dismissal puts an end to the matter while an order striking out or non-suit keeps the matter alive. See Egwu v. Modunkwu (1997) 4 NWLR (Pt.501) 574; Craig (1966) 1 All NLR 173, Ikoro v. Safrap Nig. Ltd. (1977) 2 S. C. 123; Ogbechie v. Onachie (1988) 1 NWLR (Pt.70) 370; and Ishola v. Ajigboye (1994) 6 NWLR (Pt.352) 506. Similarly, when a case is withdrawn or discontinued for one reason or the other after commencement of trial, the proper order to make is to dismiss the suit or case and not merely to strike it out: See Rodrigues v. The Public Trustee (1977) 4 S.C. 29; Sonekan v. Smith (1967) 1 All NLR 329; Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46 and Egwu v. Modunkwu, supra.
Applying the law, as declared above to the facts in the instant case, the facts clearly show that learned counsel for the appellants had started arguing his motion before the lower court. He in fact applied to withdraw out on the prayers before it got stuck and had to apply for an adjournment to enable him file a further affidavit in support of his motion. His request was granted. But he failed to show up on the adjourned date. His case therefore, in my view commencement of trial. As already shown above, the proper order which the court ought to make in the matter would be one dismissing the motion. Since that was the order made by the lower court in the matter, there is totally no merit in the appeal as It relates to that issue since the learned trial Judge was right in the order of dismissal of the motion he made in the matter.
In conclusion and for the reasons already set out above, the appeal is allowed in that lower court lacked jurisdiction to entertain the action. I accordingly set aside the entire proceedings before the trial court and in their place I hereby substitute an order striking out the plaintiff/respondent’s entire claim with N1,000 costs in favour of the appellants.
Ba’aba and Ibiyeye JJCA concurred.
Cases referred to in the judgment:
Adeyemi v. Opeyori (1976) 9-10 SC 31
Akegbejo v. Ataga (1988) 1 NWLR (Pt.534) 459
Craig v. Craig (1966) 1 All NLR 173
Egbuziem v. N.R.C. (1994) 3 NWLR (Pt.330) 23
Egwu v. Modunkwu (1997) 4 NWLR (Pt.501) 574
Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46
Etaluku v. A.G Delta State (1997) 8 NWLR (Pt. 516) 308
FBN Plc v. Jimiko Farms Ltd. (1997) 5 NWLR (Pt.503) 81
Green v. Green (1987) 3 NWLR (Pt.61) 480
Ikoro v, Safrap (Nig.) Ltd. (1977) 2 SC 123
Isola v. Ajiboye (1994) 6 NWLR (Pt.352) 506
Izenikwe v. Nnadozie (1953) 14 WACA 361
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Mattaradona v. Ahu (1995) 8 NWLR (Pt.412) 225
Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370
Okafor v. Nnaife (1973) 1 All NLR (Pt.1) 238
Olayioye v. Oso (1969) 1 All NLR 281
Rodrigues v. Public Trustee (1973) 1 All NLR (Pt.1) 238
Sonekan v.Smith (1969) 1 All NLR 329
Tukur v Gov. Gongola State (1989) 4 NWLR (Pt.117) 517
Western Steel Works Union v. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284.
