MILITARY ADMINISTRATOR, BENUE STATE AND 7 OTHERS v. ULEGEDE ESQ AND ANOTHER (SC 267/2000) [2001] 10 (19 October 2001);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 18TH DAY OF OCTOBER 2001

SC 267/2000

BETWEEN

MILITARY ADMINISTRATOR, BENUE STATE AND 7 OTHERS .......................... APPELLANTS

AND

ULEGEDE ESQ AND ANOTHER ......................................... RESPONDENTS

BEFORE: Adolphus Godwin Karibi-Whyte; Idris Legbo Kutigi; Uthman Mohammed; Aloysius Iyorgyer Katsina-Alu; Emmanuel Olayinka Ayoola, JJSC

ISSUES

The validity of the exercise of powers under the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990, to effect the compulsory retirement of public officers.

Whether grounds of appeal containing narrative content, in contravention of Order 3 rule 2 of the Court of Appeal Rules, may be allowed to stand?

Whether the issue of the retirement of the respondents by the officer in question, on the authorisation of the first appellant had became res judicata?

Whether the acceptance of three months salary paid in lieu of notice, two months after the purported retirement amounted to acceptance of the purported retirement by the respondents and precluded the respondents from complaining?

 

FACTS

The respondents were legal officers in the Ministry of Justice, Benue State. They first heard that they had been relieved of their appointments on a radio broadcast. On the same day, a government-owned newspaper carried the same news item. A few days later, each of the respondents received a letter, purportedly issued and signed by a retired public officer and former secretary to the Benue State Government, in which they were informed that they had been retired with immediate effect.

Two months after the purported retirement, the respondents accepted three months salary in lieu of notice.

The respondents instituted action against the appellants, challenging their purported retirement, and claiming damages.

Relying on the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990, the appellants applied to have the suit struck out, for want of jurisdiction. The High Court granted the application, which led to an appeal by the respondents to the Court of Appeal. That court allowed the appeal and the case went back before the High Court, with the respondents amending their Statement of Claim. Again, the High Court found that it lacked jurisdiction, and the respondents appealed to the Court of Appeal. In these proceedings, the appellants raised a preliminary objection to some of the respondents' grounds of appeal, averring that they were either narrative or argumentative and were in contravention of Order 3 rule 2 of the Court of Appeal Rules. The court agreed in part with the objection and struck out the offending Sections. The remaining grounds were found to be sound, and the appeal was allowed. The appellants then appealed to the Supreme Court.

 

HELD (Unanimously dismissing the appeal)

1.      On compliance with Order 3 rule 2(3) of the Court of Appeal Rules

Compliance with the provisions of Order 3 rule 2(3) is mandatory. Per Karibi-Whyte, JSC, at page 399.

 

2.      On the meaning of Order 3 rule 2(3) of the Court of Appeal Rules

The wordings of the rule are clear, simple and unambiguous and should be given their ordinary plain meaning. Sub-rule 3, provides that the grounds of appeal upon which appellant rely at the hearing should be framed devoid of narrative; and should be numbered consecutively. As long as the particulars of error or misdirection alleged had been incorporated in the text of the ground of appeal, and have been clearly stated, the absence of any heading indicating particulars of error will not affect the validity of the ground of appeal. It is competent to incorporate particulars of error in the body of the ground of appeal. Such a practice does not contravene the provision of the rule and does not render the ground incompetent. The Court of Appeal in this case, having struck out all the particulars of error in the offending grounds of appeal, allowed the impugned grounds to stand on the basis that they had built-in particulars. That approach was confirmed by the present court. Per Karibi-Whyte, JSC, at page 399.

 

3.      On the authority to effect the retirement of the respondents

The appellants bore the onus of proving that the officer, who had purported to retire the respondents, was authorised to do so by the first appellant. The appellants had failed to discharge that onus. Consequently, the provisions of the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990 did not apply, and the courts jurisdiction was not ousted. Per Karibi-Whyte, JSC, at page 399.

 

4.      On whether the issue of jurisdiction was res judicata

The issue, the parties and the subject matter being the same in the previous action before the High Court and then the Court of Appeal which had already determined the issue of the ouster of jurisdiction, the matter was res judicata. Per Karibi-Whyte, JSC, at page 399.

 

5.      On whether the acceptance of salary in lieu of notice precluded the respondents from subsequently challenging their compulsory retirement

The retirement being unlawful and void, a valid act cannot arise therefrom. Therefore, acceptance of three months' salary in lieu of notice could not in the circumstance preclude the respondents from complaining about the unlawful retirement which was void ab initio. Per Karibi-Whyte, JSC, at page 399.

 

S. C. Egede, Asst. Director Civil Lit, Min of Justice, Benue State for the appellants

Ochap Ulegede for the first respondent

Chief A. A. Ogiri, with Ms Ade Ogiri-Okpe, A. U. Abah. Esq. for the second respondent

 

The following cases were referred to in this judgment:

Nigeria

Adeniyi v Yaba College of Technology (1993) 7 SCNJ 304; (1993) 6 NWLR (Part 300) 426

Akanbi v Raji (1998) 12 NWLR (Part 578) 360

Ebohon v A-G Edo State (1994) 6 NWLR (Part 349) 190

Eseigbe v Agholor (1993) 12 SCJN 82; (1993) 9 NWLR (Part 316) 128

F.C.D.A v Sule (1994) 3 SCNJ 71; (1994) 3 NWLR (Part 332) 257

Garba v Federal Civil Service Commission (1988) 1 NWLR (Part 71) 449

Jallco Ltd v Owoniboys (1995) 4 SCNJ 256; (1995) 4 NWLR (Part 39) 534

Morohunfola v Kwara State College of Technology (1986) 4 NWLR (Part 38) 732

NITEL Ltd v Ikaro (1994) 1 NWLR (Part 320) 350

Ndaazoko v Nakariyi (1996) 1 NMLR (Part 2) 187

Nsirim v Nsirim (1990) 5 SCNJ 174; (1990) 3 NWLR 285

Nwosu v Imo State Environmental Sanitation Authority (1990) 4 SCNJ 97; (1990) 2 NWLR (Part 135) 688

Odife & another v Aniemeka & others (1992) 7 NWLR (Part 251)25

Odunsi v Bamgbala (1995) 1 SCNJ 275; (1995) NWLR (Part 374) 641

Oge v Ede (1995) 3 NWLR (Part 385) 564

Sanusi v Ayoola (1992) 9 NWLR (Part 265) 275

Skenconsult (Nigeria) Ltd v Ukey (1981) 6 SC 1; 12 NSCC 1

Union Beverages Ltd v Owolabi (1988) 1 NWLR (Part 68) 128

Uwagbenebi v Nigeria Palm Produce Board (1986) 3 NWLR (Part 29) 489

Wilson v A-G of Bendel State (1985) 1 NWLR (Part 4) 572

 

Foreign

UAC Ltd v Macfoy [1961] 3 All ER 1160

 

The following statutes were referred to in this judgment:

Nigeria

Evidence Act: Ss 20; 75

Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990: S 3(3)

 

The following rule of court was referred to in this judgment:

Nigeria

Court of Appeal Rules: Order 3 rule (3)

 

Ayoola, JSC (Delivered the Leading Judgment):- In the High Court of Benue State, O.P. Ulegede, Esq. and A.U. Abah, Esq. respectively the first and second respondents in this appeal, who were legal practitioners employed at the material time, respectively, as Chief Legal Officer and Principal Legal Officer in the Ministry of Justice of the Benue State ("the State") sued the 8 appellants, the Military Administrator of the State and other agencies and functionaries of the State, claiming in the main, a declaration that their several "purported retirement" were "premature, mala fide, improper, unconstitutional, null and void"; a declaration that the purported retirement of the respondents was not done or purported to be done under Decree 17 of 1984 or other law applicable to the contract of employment of the respondents; some consequential reliefs; and, certain sums of money which were alleged to have accrued and were due and payable to them.

Initially, the case came before Idoko (CJ, Benue State). Upon a point being taken in limine to the jurisdiction of the High Court to try the suit Idoko, CJ, struck out the declaratory reliefs sought on the ground that by virtue of the Public Officers (Special Provisions) Decree 17 of 1984 (Cap. 381, LFN 1990) the High Court had no jurisdiction to grant those declarations. The respondents appealed to the Court of Appeal which allowed the appeal, set aside the decision of Idoko, CJ, and ordered that the case should proceed before another judge upon a Statement of Defence to be filed by the present appellants (then respondents).

The rehearing came before Ikongbe, J, (as he then was). At the rehearing, the parties amended their pleadings. In paragraph 41 of their amended Statement of Claim, the respondents averred that:-

". . .after reaping the benefits of their hard work and excellent job performance, the first defendant on the instigation of the second defendant decided to throw out the plaintiffs to pave the way for the second defendant to come to Ministry of Justice as an Attorney-General in an atmosphere of intimidation, abuse of powers (sic), harassment and the creation of unconducive atmosphere for the performance of duties."

By their joint amended Statement of Defence the appellants did not admit the above paragraph 41. They specifically denied paragraph 41 and went further in relation thereto, to aver as follows in their paragraph 34:-

"The defendants further aver in answer to paragraph 41 of the claim that the averment apart from being unethical offends Order 25, rule 20 of the High Court Rules (sic) and the defendant will at the trial urge the court to strike same out for being embarrassing or scandalous as well as an abuse of the courts (sic) process."

The case of the respondents as summed up by Ikongbe, J, (as he then was) was that by the terms of their employment each of them was entitled to continue in service until he attained the retirement age of 60 years or his employment was terminated by three months' notice or three months' salary in lieu thereof; and, that for "no just cause, however, and in utter disregard of the terms and conditions of their employment and of the rules of natural justice relating to fair hearing, they were sent on compulsory and premature retirement without any notice or salary in lieu."

The learned trial Judge summed up part of the appellants' case at the trial thus:-

"The defendants do not deny that the plaintiffs were sent on compulsory and premature retirement without being given a hearing and without any notice. Their defence is that their retirement had been effected by the first defendant in exercise of his powers to do so under the relevant laws which preclude the court from inquiring into any aspect of his action in that regard."

Ikongbe, J, (as he then was), found as a fact that the respondents knew that their removal was at a time when the first defendant was carrying out a general purge of the public service, and that at the time of the ruling of the Court of Appeal, those facts had not come out, and the averment in the amended Statement of Claim that it was the first appellant that removed the respondents had not been made. Being of the view that fresh evidence had come before him which was not placed before the Court of Appeal when that court gave its judgment in the appeal from Idoko, CJ's ruling, he rejected the contention that the judgment of the Court of Appeal had settled conclusively the question of the jurisdiction of the High Court in favour of the respondents. In the result, he proceeded to consider the question afresh and came to the conclusion that he had no jurisdiction to grant the declaratory reliefs sought by virtue of subsection 3 of Section 3 of the Public Officers (Special Provisions) Act Cap. 381 LFN 381 ("the Act"). Having considered the evidence in regard to the remaining part of the claim, he dismissed the respondents' case.

On the respondents' appeal from that decision to the Court of Appeal, the respondents put at the forefront of their appeal the question whether Ikongbe, J, was right in re-opening the issue of the jurisdiction of the High Court to entertain the suit. The Court of Appeal answered that question in the negative. Akpabio, JCA, who delivered the leading judgment of that court with which Muhammad and Umoren, JJCA, agreed, held that the question whether the first appellant in this appeal had authorised or directed the second appellant, herein, the writer of the letter of retirement, to retire the respondents so as to bring such retirement under the provisions of the Act had become res judicata by virtue of the decision of the Court of Appeal in the judgment of that court, Exhibit 4. The court below resolved all the other issues in the case in favour of the respondents. In the event, that court allowed the respondents' appeal, set aside the judgment of the High Court and granted the declarations sort by the respondents. In addition, it gave judgment in their favour on the monetary claims and ordered that they be re-absorbed into the service of the State with payment of their emoluments from the date of the purported retirement to the date of the judgment of the court below.

The present appeal by the defendants in the High Court ("the appellants") is from that decision of the court below. Of the four issues for determination raised in the appellants' brief, it is expedient to deal, first, with the third and most important issue which was put thus:- "Whether the learned Justices of the Court of Appeal were right in holding that the question whether first appellant had authorised Engnr S.N. Torsabo, to retire the respondents had become res judicata." Counsel for the appellants acknowledged that the determination of that issue revolved on an interpretation of the judgment of the court below, contained in Exhibit 4. In his understanding of that judgment, what the court below decided was ". . .that the trial court was wrong in striking out the relevant claim because at that stage evidence had not been led to show that Engr S.N. Torsabo, had been authorised by the first appellant to retire the respondents." The appellants put their case on this appeal thus:- Estoppel was not created by the decision of the court below because the parties were at liberty to lead evidence to establish the afresh facts at the resumed trial.

The response of the respondents to this issue, put rather more clearly and succinctly in the brief of the second respondent, was that since the appellants had raised the question whether the respondents had been retired in pursuance of the provisions of the Act and had distinctly put that question in issue and had failed, he could not raise that issue again. Reliance was put on the case of FCDA v Sule [1994] 3 SCNJ 71; (1994) 3 NWLR (Part 332) 257.

It may well be noted that none of the parties raised the issue of res judicata at the trial. It was the trial judge who by himself invited the parties to address him on the question whether the question of his jurisdiction to entertain the suit was still available for determination. What appears significant is that the trial judge himself acknowledged that the question of the jurisdiction of the High Court to entertain the suit had earlier been raised and dealt with by the High Court and the Court of Appeal. The question, therefore, is whether where an issue has been raised and conclusively determined at an earlier stage of a proceeding, the same issue is available for fresh consideration and determination at a later stage. The emphasis is on the conclusiveness of the earlier determination. I venture to think that a decision is conclusive as to what it determines when it can only be set aside on an appeal being brought for that purpose. This is why there has always been a distinction between orders which can be reviewed by the court which made them and those which it had no power to review or set aside. These matters and the cases related to them are discussed to some extent by this Court in Skenconsult (Nigeria) Ltd v Ukey (1981) 6 SC1; 12 NSCC 1. In the more recent decision of this Court in FCDA v Sule (1994) 3 SCNJ 71; (1994) 3 NWLR (Part 332) 257, the appellant had raised the issue of the jurisdiction of the court to entertain an action on the ground that the jurisdiction of the courts were ousted by the provisions of the Act in limine. The trial court ruled against him. He did not appeal. At a later stage of the proceedings, in the course of the final address, he raised the same point. On the matter coming before this Court, Ogundare, JSC, said, at pages 278-9 (NWLR):-

"The defence Counsel however, in her address fell back on materials used in support of the application to dismiss the action in limine . . . The defendant's application to dismiss the action in limine was refused by the learned trial Chief Judge and there was no appeal against that ruling. In his ruling on that preliminary application the learned trial Chief Judge had held at pages 50-51 of the record:-

'I therefore hold the view the decision to terminate plaintiff is that of the Chairman FCDA under powers given to FCDA in Decree 6 of 1976 and as Decree 6 of 1976 has not ousted the Chief Judge's jurisdiction, I hold that this Court has jurisdiction to entertain the suit.'

This finding remains subsisting until it is set aside. (See Rossek & others v A.C.B. Ltd (1993) 8 NWLR (Part 312) 382. As the finding has not been set aside at the time the final addresses were made in this case, it was not open in my respectful view, for the defence to once again contend that the plaintiff was removed from office by the Minister."

In this case, the relevant judgment to look at is the judgment of the court below delivered on 22 February 1996 in the appeal from the decision of Idoko, CJ, declining jurisdiction. Of the two issues on that appeal as formulated by the Court of Appeal, the only one directly relevant for the purpose of this appeal is the second issue formulated thus:-

"Whether the compulsory retirement of the appellants was made in compliance with the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation of Nigeria to enjoy the protection of the ouster clause therein?"

The Court of Appeal ruled that it was not so made. Two grounds were given for that conclusion. One was that it had not been shown that the Military Administrator actually authorised the retirement of the respondents. The second, also given by Edozie, JCA, who delivered the leading judgment of the Court of Appeal, was that "it can hardly be said that from the letters of retirement addressed to the appellants or from the surrounding circumstances in the case as disclosed in the affidavit evidence of the parties that the Military Administrator believed or intended to act under the Act." It was on these alternative grounds that the Court of Appeal came to the conclusion that the jurisdiction of the court was not ousted.

Counsel for the appellants on this appeal had proceeded on the footing that the respondents having averred in their amended Statement of Claim that their retirement was at the instigation of the Military Administrator, the ground on which the Court of Appeal ruled ceased to hold. That, in my view, is a misconception for two reasons:-first, when the question is whether a court can reconsider an issue it had conclusively pronounced upon and determined on a previous occasion at a later stage in the same proceedings, the primary question is not whether on the production of a better evidence it could come to a different conclusion, but whether it had the power even to re-open the issue. Secondly, in this case, the Court of Appeal gave two alternative reasons, whereas the only one the appellants have addressed on this appeal is the first of the two alternative reasons. The opinion of the Court of Appeal remains final and conclusive on both grounds.

In the decision which led to this appeal, the Court of Appeal held that "the learned trial Judge was in error to have re-opened the question of his jurisdiction under the Act when the said issue had been conclusively settled by the Court of Appeal judgment, which was still subsisting." I feel no hesitation in agreeing that that was a correct conclusion.

The remaining issues can be disposed of shortly. The first two of these relate to the ground of appeal in the court below and what that court should have done in regard to those grounds which it found to have contained narrative or argumentative particulars and those in which he struck out the particulars. It is not necessary to set out those grounds since the issues concerning them can be disposed of without much ado. Where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complaint about its form becomes a technicality which does not occasion a miscarriage of justice and which ill-becomes a Counsel to bring up at this level of appeal.

Although in this appeal, Counsel for the appellants argued that the Court of Appeal should have struck out the grounds that contained particulars that were argumentative or narrative, and those in which it had struck out the particulars, it has not been suggested that retaining those grounds had occasioned a miscarriage of justice. The appellants' Counsel must have overlooked the change in our appellate system by the introduction of the brief system. Appeals are now argued on issues distilled from the grounds of appeal and not on the grounds of appeal themselves. It follows that where the complaint is not that the issues do not flow from the grounds of appeal, any complaint about the form of the grounds of appeal is inconsequential.

Besides, in this case after looking at the grounds of appeal in question it is not at all difficult to conclude that the body of the grounds whose particulars were said to be narrative or argumentative and of those whose particulars have been struck out contained enough to convey the complaint of the respondents. The court below was right in not striking out those grounds.

The only remaining issue is whether by accepting three months salary paid to each of them the respondents are precluded from complaining about their retirement. This is an issue which can easily be disposed of on the authority of Adeniyi v Governing Council of Yaba College of Technology (1993) 7 SCNJ (Part 11) 304; (1993) 6 NWLR (Part 300) 426. In that case Karibi-Whyte, JSC, delivering the leading judgment of this Court said:-

"The compulsory retirement of the appellant on the grounds of misconduct under Section 12(1) is void. It cannot be rendered valid because the appellant had applied for benefits thereunder."

The principle of that case applies with equal force to this case. There was nothing in the case to suggest that the respondents gave up their right of action by their conduct. Furthermore, the case was not a case of mere breach of a contract of employment but one in which the retirement of the respondents was void because of non-compliance with the provisions of the statute which it was claimed, conferred power on the first appellant to retire them.

The conclusion that inexorably follows from all I have said is that there is no merit in this appeal. In the result I dismiss the appeal with N10,000 costs to the respondents.

 

Karibi-Whyte, JSC:- I have read the judgment of my learned brother Ayoola, JSC in this appeal. I agree with his conclusion that this appeal should be dismissed.

The principal issue in this appeal is the very familiar and commonly disputed one of the validity of the exercise of powers under the Public Officers (Special Provisions) Act Cap. 381 Laws of the Federation 1990. It is the issue of the validity of the exercise of powers to retire public officers, compulsorily under the provisions of the Public Officers (Special Provisions) Decree. The facts of this case remain substantially undisputed.

 

The facts

Respondents, who were the plaintiffs in the Benue High Court, were Legal Officers in the Ministry of Justice, Benue State. First respondent was the Acting Assistant Director and Chairman of the Rent Tribunal. Second respondent was a Principal Legal Officer in the same Ministry of Justice. On 31 January 1994, at about 6:30 am, plaintiffs heard announcements over Radio Benue, that they and three other colleagues had been relieved of their appointments with the Benue State Government. The announcement was repeated every hour by the same medium throughout 31 January 1994. The Voice newspaper, owned exclusively by the Benue State Government, and widely circulated throughout the country carried the news item on its front page on the same date, 31 January, 1994.

On 2 February 1994, a Letter No S/MGO/BN/S/38/Vol. II/735 dated 28 January 1994 purportedly issued and signed by Engr S.N. Torsabo, a retired Public Officer and former Secretary to the Benue State Government was left at the door post of the first plaintiff by unknown persons. The letter purported to have retired the first plaintiff from service with immediate effect on the ground that his services were no longer required. A similarly worded letter of the same date purported to have been written and signed by the same person, was sent to second plaintiff.

Both aggrieved plaintiffs took out a joint Writ of Summons against the defendants/appellants challenging their purported retirements by first defendant/appellant from the Civil Service of Benue State. They also claimed general and special damages.

Defendants/appellants before filing a Statement of Defence, filed an application seeking to strike out the Suit No MHC/86/94 by the plaintiff/respondents for want of jurisdiction. Applicants relied on the Suit No MHC/86/94 by the plaintiffs/respondents for want of jurisdiction. Applicants relied on the provisions of the Public Officers (Special Provisions) Decree 17 of 1984, now Cap. 381 Laws of the Federation 1990. Plaintiffs/respondents filed a joint counter-affidavit opposing the application.

After argument before the Chief Judge of the Benue State High Court, the application was granted in part. The learned Chief Judge held he lacked jurisdiction to question the action of the first appellant retiring the respondents. He struck out the relief claiming for the unlawful retirement. He held that the other reliefs in the claim subsisted and were not affected by the ruling.

Respondents/plaintiffs appealed against the ruling to the Court of Appeal. Defendants did not cross-appeal. In a considered judgment dated 22 February 1996, the Court of Appeal allowed the appeal, the ruling of the High Court dated 27 July 1994, was set aside. It was ordered that the case should proceed before another judge upon a Statement of Defence to be filed by the defendants. The grounds on which the appeal was allowed were as follows:-

"(a) The premature retirements of the appellants does not come within the ambit of the Decree.

(b)     From the letters of retirement addressed to the appellants or from the surrounding circumstances in the case as disclosed in the affidavit evidence of the parties that the Military Administrator believed or intended to act under the Act.

(c)     The retirement of the appellants on the grounds relied upon by the respondents does not enjoy the immunity from civil proceedings."

The case now came before Honourable Justice Ikongbe where plaintiffs amended their Statement of Claim. Defendants filed a Statement of Defence. In paragraph 40 of their Statement of Defence, they averred as follows:-

"The defendants will contend at the trial:-

(a)     . . .

(b)     The retirement of the plaintiffs was done under the provisions of Public Officers (Special Provisions) Act Cap. 381 and all other relevant Laws enabling the Military Administrator to so retire them."

At the trial, appellants as defendants did not lead any evidence in support of their contention that plaintiffs were retired under the provisions of the Public Officers (Special Provisions) Decree. After the conclusion of evidence and addresses of Counsel, and parties asked to submit written addresses and the case had been adjourned for judgment, the learned trial Judge suo motu raised the issue of his jurisdiction and requested Counsel to address him on the issue. Parties addressed.

Plaintiffs/respondents in their written address contended that the issue of jurisdiction could not be raised again, having been determined by the Court of Appeal in the judgment dated 22 February 1996. There has been no appeal against that judgment.

The learned trial Judge, in a considered judgment, held that he had no jurisdiction to hear the action of plaintiffs/respondents as it concerned the retirement of the plaintiffs/respondents by the first appellant. He dismissed the action on the claim for wrongful and unlawful retirement and libel. He did not make any finding on the other heads of claim relating to general and special damages. Plaintiffs/respondents not satisfied, appealed again to the Court of Appeal.

In the Court of Appeal, parties filed and exchanged briefs of argument. Appellants filed and raised preliminary objection to Grounds 2, 3, 4 and 5 of the first respondent and Grounds 1, 2, 3 and 6 of the second respondents' grounds of appeal. The grounds of the objection were that the particulars of these grounds of appeal were either narratives or argumentative and were in contravention of Order 3, rule 2 of the Court of Appeal Rules.

The Court of Appeal agreed in part with the criticism. On the particulars of the grounds of appeal it was found that the particulars of the second and third grounds of appeal of the first respondent were built in the grounds of appeal and therefore good in law. The offending particulars to the grounds of appeal were struck out as unnecessary. Grounds 4 and 5 were held to be good in law. Grounds 1, 2, 3 and 6 of the grounds of appeal of the second respondent were held to be good. The appeal of the appellants was allowed in its entirety. It was held that the issue of jurisdiction was determined in the decision of the court in Appeal No CALJ/117/94 of 22 February, 1996.

Defendants have appealed against this judgment on the following grounds of appeal. Grounds of Appeal

"(1)    The learned Justices of the Court of Appeal erred in law in failing to strike out Grounds 2 and 3 of first respondent's grounds of appeal after having found that they are narrative and argumentative.

Particulars of Error

(a)     Grounds 2 and 3 of the first respondent's grounds of appeal were found to be 'narrative and argumentative' contrary to the provisions of Order 3, rule 2 (3) Court of Appeal Rules.

(b)     The above formed the basis of the preliminary objection by the appellants and upheld by the lower court.

(c)     The proper order to make in the circumstance was one striking out the said Grounds 2 and 3.

(2)     The learned justices of the Court of Appeal erred in law in failing to strike out Grounds 1, 2, 3 and 6 of second respondent's grounds of appeal on the basis that they have 'built-in' particulars.

 

Particulars of Error

(a)     The lower court upheld the preliminary objection of the appellants and struck out the particulars set out under Grounds 1, 2, 3 and 6 of the second respondent's grounds of appeal.

(b)     The lower court, however, refused to strike out the said grounds on the basis that they have 'built-in' particulars.

(c)     Order 3, Rule 2(2) Court of Appeal Rules does not contemplate 'built-in' particulars, but requires that the particulars be clearly stated.

(d)     The proper order to make in the circumstance was one striking out the said Grounds 1, 2, 3, and 6 of the second respondent's grounds of appeal.

(3)     The learned Justices of the Court of Appeal erred in law in holding that the question whether first appellant authorised or directed Engr Torsabo to retire the respondents had become res judicata by virtue of the decision of the Court of Appeal in Exhibit 4.

 

Particulars of Error

(a)     The Court of Appeal in Exhibit 4 allowed the appeal and ordered a retrial of the case.

(b)     At the fresh trial, the respondents amended their claim and admitted the contention of the appellants that they were retired on the directive of the first appellant.

(c)     The trial Judge was, therefore, right to have examined the issue of jurisdiction and consider if he could entertain the action.

(4)     The learned Justices of the Court of Appeal erred in law in holding that the acceptance of three months salary in lieu of notice did not amount to respondent's acceptance of their retirement.

 

Particulars of Error

(a)     Upon their retirement, the respondents processed and were paid their three months salary in lieu of notice.

(b)     The said acceptance of three months salary amounted to acceptance of their retirement.

(c)     The respondents were precluded consequently from complaining."

Appellants have filed four issues for determination as arising from the grounds of appeal as against three and two respectively on the part of the first and second respondents respectively. I reproduce hereunder the various issues for determination formulated by the parties.

 

"Issues for Determination

It is respectfully submitted that the following issues call for determination in this appeal:-

(a)     Whether the learned Justices of Appeal were right in failing to strike out the grounds of appeal that were found to be narrative and argumentative.

(b)     Whether having struck out the particulars set out under Grounds 1, 2, 3, and 6 of the second respondent's grounds of appeal, the learned Justices of Appeal were right in failing to strike out the said grounds.

(c)     Whether the learned Justices of the Court of Appeal were right in holding that the question whether first appellant had authorised Engr S.N. Torsabo to retire the respondents had become res judicata.

(d)     Whether the learned Justices of Appeal were right in holding that the acceptance of three months salary in lieu of notice did not amount to respondents' acceptance of their retirement."

"Issues for Determination (First respondent)

It is submitted that three issues fall for determination viz:-

1.      Whether the learned Justices of Court of Appeal ought to have struck out first respondent's Grounds 2 and 3 of the grounds of appeal.

2.      Whether the issue of the retirement of the respondents by Engr S.N. Torsabo, on the authorisation of the first appellant had became res judicata.

3.      Whether the acceptance of the three months salary paid in lieu of notice, paid piece-meal, two months after the purported retirement amounts to acceptance of the purported retirement by the respondents and precludes the respondents from complaining."

"Issues for determination (Second respondent)

3.1     It is submitted that two issues call for determination viz:-

(a)     Were the learned Justices of the Court of Appeal right in their views that the doctrine of estoppel was applicable to the appeal.

(b)     Were the learned Justices right in their decision that Grounds 1, 2, 3 and 6 of the second respondent's grounds of appeal were valid and in declaring the purported retirement of the second respondent as null and void.

Issue 1 covers Ground 3, while Issue 11 covers 2 and 4 of the appellant's grounds of appeal."

I have considered all the issues for determination. The three issues filed by first respondent appear to me, adequate and as covering the four issues filed by the appellant. I therefore adopt them. Issues 1 and 2 of the appellant are covered by Issue 1 of the first respondent and Grounds 1 and 2 of the grounds of appeal.

Issue 1 relates to the question of the compliance of the Grounds 2, 3, 4 and 5 of the grounds of appeal with the provisions of Order 3, rule 2(3) of the Court of Appeal Rules. The submission was firstly that the Court of Appeal having found that Grounds 2, 3, of the first respondent's grounds of appeal were narrative, argumentative and legal submissions, they were in contravention of the rules and ought to have been struck out as incompetent. Compliance with the provisions of Order 3, rule 2 (3) is mandatory. The decision of the Court of Appeal in Ndaazoko v Nakariyi (1996) 1 NMLR (Part 2) 187; Oge v Ede (1995) 3 NWLR (Part 385) 564; Sanusi v Ayoola (1992) 9 NWLR 275 were cited.

Again, the Court of Appeal upon hearing argument on the preliminary objection of the appellants, struck out all the particulars of error under Grounds 1, 2, 3, and 6 of the second respondents' grounds of appeal on the grounds that they were narrative/legal arguments. However, the grounds of appeal were allowed to stand for the reason that they had built-in particulars. The rule requires the particulars to be clearly stated. The Court of Appeal ought to have struck out the affected grounds of appeal.

I agree entirely with the reasoning of the Court of Appeal on this issue, and the submissions of learned Counsel to the respondents. The issue rests entirely on the interpretation of the provisions of Order 3, rule 2(4)(3) of the Court of Appeal Rules 1981, which state:-

"(2)    If the ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3)     The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively."

The two sub-rules of Order 3, rule 2, 3 of the Court of Appeal Rules 1981, inter alia, govern and are guides to the drafting of notices of appeal and the grounds of appeal in the notice. The words of the rule are clear, simple and unambiguous and should be given their ordinary plain meaning. Sub-rule 3, provides that the grounds of appeal upon which appellant rely at the hearing should be framed devoid of narrative and should be numbered consecutively. However, subrule 2 provides that the nature of all allegations of misdirection or error of law shall be clearly stated in the particulars. It seems to me that although the particulars of error of misdirection are usually appended to the grounds in the interest of clarity, the provision of rule 2(2) merely state that they shall be stated clearly. It follows however, that as long as the particulars of error or misdirection alleged had been incorporated in the text of the ground of appeal, and have been clearly stated the absence of any heading indicating particulars of error will not affect the validity of the ground of appeal. The contention of appellant will merely be servile to form rather than substance. It is competent to incorporate particulars of error in the body of the ground of appeal. Such a practice does not contravene the provision of Order 3, rule 2(2) and does not render the ground incompetent. (See Nsirim v Nsirim (1990) 5 SCNJ 174 (1990) 3 NWLR 285; Akanbi v Raji (1998) 12 NWLR 360).

The dictum of the Court of Appeal challenged states:-

"On the whole therefore, the preliminary objection succeeds partially, in that I have found that some of the particulars given under some grounds of appeal are truly narrative or legal arguments, and have therefore struck them out. But the main body of the grounds which have built in particulars are allowed to stand."

I am satisfied that the court below, here, is saying that although the particulars given under the caption contain narratives or legal arguments the particulars of error alleged are clearly incorporated in the grounds of appeal. This is what the court refers to as particulars being "built-in" in the grounds of appeal.

In striking out the particulars 1 till 3, the Court of Appeal found only Grounds 2 and 3 to contain narratives or argumentative. All other grounds and particulars filed by first appellant namely 1, 4, 5 were held to be good. The Court of Appeal reproduced Ground 2 of the ground of appeal and held that the "built-in" particulars are the expression underlined:-

"(2)    The learned trial Judge erred in law in re-opening the issue of jurisdiction of the court to entertain appellants suit when the matter had been put to rest by the Court of Appeal, Jos in Appeal No CA/J/117/94 decided on 22 February, 1996, for which the respondent never appealed."

The second appellant's six grounds of appeal were similarly considered. Grounds 1, 2, 3 and 6 of the grounds of appeal were alleged to "contain particulars that are narratives, legal arguments/submissions, irrelevant and contradictory." The Court of Appeal found the particulars in Grounds 1, 2, 3, 4 and 6 as containing narratives, and are struck out. The grounds of appeal are not affected. Ground 4 with its built-in particulars stand. Ground 5, the omnibus ground, also stands.

I agree with the submission of learned Counsel to the first respondents in his briefs of argument that although the court below considered the issue, appellants did not urge any reasons in support of the contention in the preliminary objection on Grounds 2 and 3 of the first respondents grounds of appeal. Appellants did not specify which particulars of which ground of appeal were narrative, argumentative or legal conclusions and in contravention of Order 3, rule 2(3) Court of Appeal Rules 1981. The preliminary objection was therefore abandoned in law and ought not to have been considered. (See Jallco Ltd v Owoniboys (1995) 4 SCNJ 256; (1995) 4 NWLR (Part 391) 534).

It seems to me that respondent should have appealed against the finding of the court below on this ground. Having not done so, respondent is not entitled to be heard on the issue. (See Odife & another v Aniemeka & others (1992) 7 NWLR (Part 251) 25).

Respondents have submitted and this is not disputed by the appellants, that all the grounds of appeal which have survived the preliminary objection have "built-in" particulars. The finding in the court below is justified in regarding the grounds of appeal with "built-in" particulars as valid and the finding is supported by judgments of the Supreme Court.

I also agree with the submission of first respondent's Counsel that the learned Justices of the Court of Appeal never found that the second and third grounds of appeal of the first respondent contravened Order 3, rule 2(3), but it was the particulars that were so held. This is because the main ground of appeal was held to contain "built-in" particulars. Appellant is therefore wrong in his submission that the justices of the Court of Appeal were in error for failing to strike out the grounds of appeal which were found to be narrative and argumentative. As I have already observed, it was not the second and third of the grounds of appeal of the first respondent, and Grounds 1, 2, 3, and 6 of the second respondent but the particulars of such grounds that were held to be narrative and argumentative. The grounds of appeal themselves contain "built-in" particulars and were therefore good in law.

Striking out the particulars which consist of narratives does not affect the main grounds of appeal which consist of "built-in" particulars. Accordingly, Issues 1 and 2 fail and are resolved against the appellant.

Issue 2 of the first respondent, which is the first issue by the second respondent is appellants Issue 3, all variously formulated come to:-

"Whether the Court of Appeal was right in holding that the question whether first appellant had authorised Engr S.N. Torsabo to retire the respondents had become res judicata."

Learned Counsel to the appellant referred to the grant of the application by the defendants to strike out the action of plaintiffs/respondents in limine, for want of jurisdiction, and the setting aside of the decision of the High Court by the Court of Appeal, which directed the action to proceed to trial before another judge. It was submitted that since evidence had not been led to show that Engr Torsabo had been authorised by first appellant to retire the respondents, the trial court was wrong to strike out the relevant claim. Estoppel was therefore not created by the decision, because the appellants were at liberty to establish the said fact at the resumed trial.

At the resumed trial, respondents in paragraph 41 of their amended Statement of Claim now averred that they were retired on the directive of the first appellant. It was further submitted citing Sections 20, 75 of the Evidence Act that on this averment appellant was no longer required to prove the allegation. In the circumstance, the trial court was right in raising the issue of jurisdiction, and to strike out the action for want of jurisdiction. He relied on Section 3(3) of the Public Officers (Special Provisions) Act and Ebohon v A-G Edo State (1994) 6 NWLR (Part 349) 190 and Nwosu v Imo State Environmental Sanitation Authority (1990) 4 SCNJ 97. It was submitted that Wilson v A-G of Bendel State (1985) 1 NWLR (Part 4) 572 relied upon by the Court of Appeal was not applicable.

In his brief of argument learned first respondent's Counsel submitted that appellants were in error to contend that there was no issue on estoppel; on the question whether Engr S.N. Torsabo had first appellants, appropriate authority, under Cap. 381 Laws of the Federation 1990 to retire the respondents. The error was based on the averment in paragraph 41 of the amended Statement of Claim where it was averred:-

"41. The plaintiffs aver that after reaping the benefits of their hard work and excellent job performance, the first defendant on the instigation of the second defendant decided to throw out the plaintiff."

This averment was denied by the defendants in paragraphs 33 & 34 of the amended Statement of Defence alleging that the decision to retire plaintiffs was to improve the Ministry of Justice and to wipe out apparent decay.

There is no doubt that by this denial in paragraphs 33 & 34 of the amended Statement of Defence of the averment in paragraph 41 of the amended Statement of Claim, the parties joined issues on the allegation. The averment in paragraph 41 of the amended Statement of Claim could not be in the circumstances regarded as an admission.

The burden was on the appellants who averred that Engr S.N. Torsabo, second appellant had the authority of the first appellant to retire respondents as he did as averred in paragraph 40(b) of the amended Statement of Defence to lead evidence in support to establish the authority. (See Odunsi v Bamgbala (1995) NWLR (Part 374) 641; (1995) 1 SCNJ 275; Eseigbe v Agholor (1993) 9 NWLR (Part 316) 128; (1993) 12 SCNJ 82. Appellants failed to establish the burden.)

The Court of Appeal in their judgment held that the Public Officers (Special Provisions) Decree 17 of 1984 now Cap. 381 Laws of Nigeria 1990 was not complied with in the mere issuance of the purported retirement letters to the respondents. It was held therefore, that appellants were not protected by the Decree. Accordingly, appellants did not establish that Engr Torsabo, second appellant was authorised by the first appellant, the appropriate authority, to effect the retirement of the respondents. (See Wilson v A-G Bendel State (1985) 1 NWLR (Part 4) 572; Garba v Federal Civil Service Commission (1988) 1 NWLR (Part 71) 449). The issue of jurisdiction was therefore decided against appellants.

There is no dispute that the issue, the parties and the subject matter are the same in the previous action before Idoko CJ, which went onto the Court of Appeal as the action before Ikongbeh, J. The Court of Appeal having determined the issue of the ouster of jurisdiction, the matter was res judicata. Issue estoppel bars a party from relitigating in subsequent proceeding an issue which had been raised and finally determined solemnly in an earlier proceeding. (See Balogun v Adejobi (1995) 1 SCNJ 242; FCDA v Sule (1994) 3 SCNJ 71; Ebba v Ogodo (2000) 6 SCNJ 100).

There is no doubt on the facts, the issue before the learned trial Judge was a proper case of issue estoppel. The issue of ouster of jurisdiction whether the learned trial Judge had the requisite jurisdiction to determine whether the respondents have been retired under the provisions of the Public Officers (Special Provisions) Decree 17 of 1984 having been determined between the parties, is res judicata and not subject matter for determination in the proceedings. The Court of Appeal has held that there was jurisdiction; the decision which is binding on the High Court is binding on Ikongbeh J.

I therefore answer the second issue in the affirmative.

I now turn to the third issue for determination, which is the fourth issue in the formulation by the appellants. This issue relates to the contention whether the Court of Appeal was right to hold that acceptance by respondents of three months salary in lieu of notice of dismissal from their appointments did not amount to acceptance of their retirement.

The submission of appellants was that the acceptance by the learned trial Judge of the evidence in proof of the averment that respondents were paid and collected three month's salary in lieu of their retirement was acceptance of the validity of their retirement. They could no longer complain. The decisions of Union Beverages Ltd v Owolabi (1988) 1 NWLR (Part 68) 128; Uwagbenebi v Nigeria Palm Produce Board (1986) 3 NWLR (Part 29) 489; Morohunfola v Kwara State College of Technology (1986) 4 NWLR (Part 38) 732 were cited in support.

It was submitted that the Court of Appeal relied on the authority of NITEL Ltd v Ikaro (1994) 1 NWLR (Part 320) 350 to hold otherwise where such acceptance was made under protest. It was argued that respondents did not protest before payments of the three months' salary in lieu of retirement was made. The court below, it was submitted, raised the issue of the protest suo motu, and that there was no protest at the time of the payment and collection of the three months' salary.

Both Counsel to respondents have opposed the submission both on the grounds of fact and on law. I agree with the submission that respondents had shown that defendants were unable to prove that their retirements by the letter written by the second appellant, Engr S.N. Torsabo was authorised or directed by the first appellant who is appropriate authority under the enabling law. The retirement of respondents was therefore not in compliance with the enabling law, that is, the Public Officers (Special Provisions) Act Cap. 381 Laws of Nigeria 1990. The retirement being unlawful and void, a valid act cannot arise therefrom. I agree therefore that acceptance of three months' salary in lieu of notice cannot in the circumstance preclude the respondents from complaining about the unlawful retirement which was void ab initio.

In Adeniyi v Yaba College of Technology (1993) 7 SCNJ 304, this Court held void a compulsory retirement under the enabling law based on ground of misconduct not in accordance with the provisions of the enabling law. It was also held that the appellants' application for and collection of three months' salary in lieu of retirement did not render valid the invalid and void act of unlawful and wrongful retirement.

There is on the facts no valid notice of retirement on the respondents, which could be accepted by them. The principle is now well settled that where an act is void ab initio, it cannot be validated by subsequent acts even if valid. This is because you cannot add something on nothing. (See UAC Ltd v Macfoy [1961] 3 All ER 1160). The retirement remains void, notwithstanding the acceptance of the payment of three months' salary in lieu of notice. I am satisfied therefore that the acceptance by the respondents of the three months' salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement.

I therefore resolve this issue against the appellants.

Having resolved all the issues for determination in this appeal against the appellants, this appeal fails in its entirety and is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed.

Appellants shall pay costs of this appeal assessed at N10,000 to each respondent.

 

Kutigi, JSC:- I read in advance the judgment just delivered by the learned brother Ayoola, JSC. I agree with his reasoning and conclusions. I will also dismiss the appeal with costs as assessed.

 

Mohammed, JSC:- I have had the preview of the judgment just delivered by my learned brother, Ayoola, JSC in draft, and I agree with him that this appeal has failed. For the reasons given in the judgment, I dismiss the appeal and affirm the decision of the Court of Appeal. I also award N10,000 costs to the respondents.

 

Katsina-Alu, JSC:- I have had the advantage of reading in draft the judgment of my learned brother Ayoola, JSC. I entirely agree with it. For the reasons which he has given, I would also dismiss the appeal with N10,000 costs to the respondents.

The appeal was dismissed.