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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: September 27, 2011 SUIT NO. NIC/LA/41/2010 BETWEEN Mr. Adeyemi Saliu OlaotanVS Lagos State Government and 2 others REPRESENTATION Mrs. B. C. Anyanwu for the claimant. Mrs. O. A. Olugbode, Assistant Director, Lagos State Ministry of Justice for the defendants and with her is Adeolu Odugbemi. JUDGEMENT The claimant filed a complaint on the 18th of November 2010 against the defendants seeking the following reliefs: 1. A declaration that the purported termination of the claimant’s employment by the defendants vide their letter dated 11th April 2003 with effect from 20th March 2003 is wrongful, unlawful, illegal, null and void and of no effect whatsoever being contrary to the provisions of the Lagos State Civil Commission Law Cap. 76 Laws of Lagos State of Nigeria, 1994 and the Civil Service Rules 1982. 2. A declaration that the purported termination of the claimant’s employment by the defendant vide its letter dated 18th August 2010 with effect from 30th June 2005 is wrongful, unlawful, illegal, null and void and of no effect whatsoever being contrary to the provisions of the Lagos State Civil Commission Law Cap. 76 Laws of Lagos State of Nigeria, 1994 and the Civil Service Rules 1982. 3. A declaration that the claimant is entitled to his salaries and allowances without loss of position and privileges from 1st November 2002 to 30th June 2005. 4. An order setting aside the purported termination of the claimant’s employment. 5. An order mandating the defendants to pay to the claimant his full salaries and allowances from 1st November 2002 to 30th June 2005 in line with the defendants’ salary scale for civil servants under the 1st defendant’s employment on grade level 10 as at 30th June 2005. 6. An order mandating the defendants to pay to the claimant his salaries and allowances from the 1st July 2005 until the date of judgment in this suit in line with the defendant’s salary scale for civil servants under the 1st defendant’s employment on grade level 10 as at date of judgment. 7. An order mandating the defendants to pay to the claimant damages for wrongful termination of his employment in the sum of N5,000,000 (Five Million Naira only). Accompanying the complaint is the statement of facts, list of witnesses and the list of documents. By an order of court dated 8th March 2011, leave was granted to the claimant to file an amended statement of facts together with three additional documents. The defendants entered appearance on the 10th December 2010 and on the 5th January 2011 filed their statement of defence, list of witnesses and list of documents. Both parties urged the court that they be permitted to argue the case on the record thus dispensing with the need to call witnesses. Consequently, parties were directed to file and serve their respective final written addresses. The claimant’s address is dated 28th April 2011 but filed on the 29th April 2011. The defendants’ reply address is dated 11th May 2011 but filed on the 24th May 2011. The claimant did not file a reply on points of law. Both parties adopted their written final addresses as their arguments in support of their case. In a nut shell, the case of the claimant on the pleadings is that he was employed by the 1st and 2nd defendants in October 1983 as a clerical officer on grade level 04 and rose through the ranks to the position of Principal Executive Officer (Accounts) on grade level 10. In November 2002, the claimant was queried for facilitating the preparation of tax relief for officers of the Lagos State Civil Service without adherence to due process as a variation officer. Specifically, he was alleged to have taken bribes from some officers to assist them in processing their tax reliefs. He was subsequently invited by the Personnel Management Board (Disciplinary Committee) set up by the 1st and 2nd defendants to defend his alleged involvement in the tax scam by officers of the Lagos State Civil Service committed against the 1st defendant. Thereafter, the claimant was placed on indefinite suspension without pay by a letter dated 29th November 2002 written by the 2nd defendant. By another letter dated 11th April 2003, the 1st and 2nd defendants terminated the claimant’s appointment with effect from 20th March 2003. The claimant then wrote letters of appeal to the 2nd defendant on 23/09/04, 03/01/05 and 09/11/06 that he be re-absorbed into the civil service. Again, by another letter dated 18th August 2010 written by the 1st and 2nd defendants, the claimant was informed that his appointment had been compulsorily terminated with effect from 30th June 2005. The case of the defendants on the pleadings is that in year 2002, there were incidents of illegal computation of tax for civil servants in Lagos State and the claimant was one of the officers affected who faced disciplinary action and was dismissed from service for his involvement in the incident. That being dissatisfied with the disciplinary action, the claimant along with some others instituted an action in the High Court of Lagos State against the defendants in Suit No. ID/1417/2006. That they as defendants in that suit pleaded the statute of limitation in defence and judgment was entered in their favour. They pleaded the judgment of the High Court of Lagos State as their defence to this suit. That instead of the claimant appealing against the decision of the High Court, he has filed a similar suit in this court which amounts to an abuse of the court process. The claimant’s counsel framed two issues for determination as follows: a) Whether the claimant is by virtue of the ruling of Hon. Justice K. O. Alogba of the Lagos High Court delivered on 14th December 2009 in Suit No. ID/1417/2006 estopped from bringing the present action and whether the present action constitutes an abuse of judicial process. b) Whether the claimant is entitled to the reliefs sought. In arguing issue a) learned counsel to the claimant submitted that a plea of estoppel per rem judicatem as a special defence to an action has to be specifically pleaded by the defendants before they can rely on same, citing MV ‘Delos’ v. Ocean Steamship (Nig) Ltd [2004] 17 NWLR (Pt. 901) 44 at 105 B – D. That the defendants cannot rely on a plea of estoppel as a defence having not specifically pleaded same. In the alternative counsel argued that the defence of estoppel per rem judicatem cannot avail the defendants because the facts averred by the defendants and the ruling of the High Court have not met the conditions precedent to the applicability of the defence. She submitted that the conditions are: (a) the parties or their privies as the case may be in the previous case are the same as in the present case; (b) the issue and subject matter or res litigated upon in the previous action is the same as in the present action; (c) the adjudication in the previous case must have been given by a court of competent jurisdiction; (d) the previous judgment relied upon must have finally decided the issue between the parties. The claimant’s counsel referred to Abubakar v. B. O. & A. P. Ltd [2007] 18 NWLR (Pt. 1066) [no page number was supplied] and MV ‘Delos’ (supra) and argued that even though the parties in this suit and the earlier suit filed by the claimant in the Lagos High Court are the same, the question is whether the issues and subject matter are the same and whether the ruling of the High Court finally decided the issues between the parties. She argued that the pertinent factor is whether the cause of action in the present suit is the same as that filed in the High Court by the claimant and cited Oduka v. Government of Ebonyi State [2004] 13 NWLR (Pt. 891) 487 at 501 F – H for the time a cause of action accrues in a contract of employment. The claimant’s counsel submitted that the cause of action in this suit accrued in September 2010 when the claimant received the defendants’ letter dated 18th August 2010 which terminated his employment with effect from 30th June 2005 while the cause of action in Suit No. ID/1417/2006 filed in the High Court and relied on by the defendants to raise a plea of issue estoppel accrued on 11th April 2003 when the claimant was given the letter terminating his employment with effect from 20th March 2003. She argued that the defendants’ letter dated 18th August 2010 terminating the claimant’s employment with effect from 30th June 2005 superseded the earlier letter dated 11th April 2003 terminating the claimant’s employment with effect from 20th March 2003. That by the time the claimant received the defendants’ letter dated 18th August 2010, a fresh cause of action arose for his benefit thus reviving his right of action over the issue of termination of his employment. On whether the decision of the High Court finally decided the issues between the parties, the claimant’s counsel submitted that the High Court struck out the suit for being statute-barred by virtue of section 2(a) of the Public Officers Protection Law of Lagos State Cap. L67 Laws of Lagos State, not having been commenced within 3 months of the accrual of the cause of action. She argued that the court did not go into the merits of the case and that the right of the parties regarding the issues in controversy were not decided on by the High Court. She urged the court to hold that the decision of the Lagos State High Court did not finally decide the issues between the parties. On the issue of abuse of court process, learned counsel submitted that this only occurs where a party is deliberately and wrongly using or initiating a court process or a multiplicity of suits to frustrate, annoy, or irritate his opponent or to frustrate the efficient and effective administration of justice, citing Ogbaru v. Ibori [2004] 7 NWLR (Pt. 871) 192, Ayorinde v. Ayorinde [2004] 13 NWLR (Pt. 889) 83. That where these ingredients are not present, an abuse cannot be said to have occurred. Arguing further counsel submitted that there is a fresh cause of action in this suit, there is no pending proceeding commenced by the claimant on this same cause of action and, therefore, there is no wrong use of the judicial process by the claimant to annoy the defendants or to frustrate the due administration of justice. She urged the court to hold that this suit is not an abuse of the court process and dismiss the defendants’ defence. On the second issue raised on whether the claimant is entitled to the reliefs sought, the claimant’s counsel submitted that parties are bound by their pleadings and where an averment is made on a fact by a party to a proceeding in his pleadings and same is not specifically denied by the other party, that fact will be deemed to have been admitted and thus unchallenged, citing Nigergate Ltd v. Niger State Government [2005] 1 NWLR (Pt. 907) 342 at 362 C – D, Ezinwa v. Agu [2004] 3 NWLR (Pt. 861) 431 at 458 and Onbrechere v. Esegine [1986] 1 NWLR (Pt. 19) 799. The claimants counsel argued that the defendants have not denied any of the facts in the claimant’s pleadings and urged the court to deem same as having been admitted. She contended that the claimant’s employment is one with statutory flavor and, therefore, the question is whether his termination is in accordance with the procedure laid down by the statute governing his employment which is the Lagos State Civil Service Commission Law Cap. 76 Laws of Lagos State 1994 and the Civil Service Rules made thereunder. She submitted that any termination not in accordance with the procedure prescribed by the statute is null and void and of no effect, referring to Raji v. University of Ilorin [2007] 15 NWLR (Pt. 1057) 259, Ndili v. Akinsumade [2000] 8 NWLR (Pt. 668) 293 and University of Nigeria Teaching Hospital Management Board v. Nnoli [1994] 8 NWLR (Pt 363) 376. Learned counsel referred to section 6(1) of the Lagos State Civil Service Law Cap. 76 Laws of Lagos State 1994 and submitted that it is only the Commission that has the power to dismiss and exercise disciplinary control over Lagos State Civil Servants. That section 10 of the Act empowers the Commission to make Regulations in matters of appointment, dismissal and disciplinary control of such officers. She reproduced Regulation 39 which provides that the Commission may direct the Head of Department to initiate disciplinary proceedings against a civil servant and submitted that the Civil Service Rules and Regulations have been held by the Supreme court to have constitutional force in the cases of Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40, Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 and Busari v. Edo State Civil Service Commission [1999] 4 NWLR (Pt. 599) 365. The claimant’s counsel then went on to state that the offence alleged against the claimant bothers on misconduct as defined by Rule 04501 of the Civil Service Rules. That the disciplinary proceeding against the claimant was initiated and carried out by a body known as Personnel Management Board and the Head of Service. That neither this body nor the office of the Head of Service has the power to exercise disciplinary control over the claimant by virtue of the provisions of the Civil Service Rules and Regulations. She referred to Rules 01003, 04508 and 04511 in support of this contention and went on to state that the 2nd defendant failed to carry out its duty to initiate and carry out or direct the claimant’s Head of Department to initiate disciplinary proceedings as required by the Regulations. Learned counsel then submitted that the disciplinary proceeding leading to the termination of the claimant’s employment, not being carried out by the body duly authorised to exercise disciplinary control, was not in accordance with the procedure prescribed by law and the termination is, therefore, null and void and of no effect and urged the court to so hold. She submitted that the fact that the actual termination was carried out by the Commission does not remedy the defect in the proceedings as the law does not permit for a variation or circumvention of any clear procedure. The claimant’s counsel then went on to argue that the claimant was tried for crimes under the criminal code without being tried by a court of competent jurisdiction. That he was accused of illegal computation of tax relief for officers, a fraudulent act which is clearly a misconduct bothering on crime. She submitted that establishing the claimant’s guilt before a court of competent jurisdiction is a constitutional requirement. Therefore, not establishing the claimant’s guilt before the termination of his employment is null and void for non-compliance with the requirement of the law, citing Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 and Jubril v. Milad Kwara State [2007] 3 NWLR (Pt. 1021) 357. She further submitted that where the termination of an employment which has statutory flavor is found to be wrongful, null and void, the appropriate order for the court to make is re-instatement of the employee and the payment of his salaries for the intervening period, citing Busari v. Edo State Civil Service Commission [1999] 4 NWLR (Pt. 599) 365. She finally urged the court to nullify the termination of the claimant’s appointment, and make an order for the payment of his salaries and allowances until the date of judgment and damages for wrongful termination in lieu of reinstatement. In reply, learned counsel to the defendants raised two issues for determination as follows: 1. Whether this court has jurisdiction to adjudicate on a matter determined at a court with co-ordinate jurisdiction. 2. Whether this suit is an abuse of court process. She began by stating that jurisdiction is the authority a court possesses to decide matters litigated before it or to take cognisance of matters presented in a formal way for its decision and that jurisdiction is the pillar or foundation upon which the entire case stands, citing National Bank of Nigeria v. Shoyeye [1977] 5 SC 181, Enugwu v. Okefi [2000] 3 NWLR (Pt. 650) 620 and Shell Petroleum Development Company Nigeria Ltd v. Isaiah [2001] 5 SC (Pt 11) 1. She submitted that jurisdiction is given to superior courts of record by the Constitution. That the National Industrial Court as a superior court of record has all the powers of a High Court referring to section 1(3) (a) (b) of the National Industrial Court Act 2006. That any litigant not satisfied with the decisions of either the Federal High Court, National Industrial Court or State High Court has a right of appeal only at the Court of Appeal pursuant to the provisions of section 240 of the Constitution of the Federal Republic of Nigeria. Counsel to the defendants stated that the claimant filed a similar suit at the Lagos High Court wherein they as defendants raised an objection that the court lacked jurisdiction to hear the suit because it was statute-barred and the court upheld their objection. She argued that the option open to the claimant is to challenge the decision of the High Court at the Court of Appeal and not file a similar suit in a court of co-ordinate jurisdiction with the High Court. Learned counsel submitted that the claimant’s argument that the letter written by the Civil Service Commission on 18th August 2010 has revived the cause of action does not hold weight as an administrative process cannot redress or change the status of a court decision. That it is an elementary principle of law that a court decision is binding until pronounced otherwise by an appellate court, citing Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156. The defendant’s counsel further submitted that it is trite law that only an admission of liability can revive the cause of action or stop time from running in a matter in which limitation of actions is in issue, citing University of Ibadan v. Adetoro [1991] 4 NWLR (Pt. 185) 375 and Nwadiaro v. SPDC Nig. Ltd [1990] 5 NWLR (Pt. 150) 322 at 339. Counsel argued that the letter written by the defendants on the 18th August 2010 is not an admission of liability or negotiation but rather, a confirmation of its decision stating that the claimant’s termination remains effective in line with the decision of the court. That as the High Court has given a decision on the matter which was premised on lack of jurisdiction, the claimant’s right to legal redress is to appeal against the decision. She concluded this issue by submitting that this court is functus officio of this matter having been adjudicated and determined by the Lagos High Court, a fact not denied nor controverted by the claimant and, therefore, urged the court to dismiss this suit for being incompetent. On the second issue raised, the defendants’ counsel argued that the process of court must be used properly, honestly and in good faith and must not be abused. That an abuse of court process will arise when a party improperly uses the judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent, citing Okafor v. A. G. Anambra State [1991] 6 NWLR (Pt. 200) 659 and Akpan v. Julius Berger Nig. Plc [2002] 17 NWLR (Pt. 795) 1. Learned counsel contended that this is what the claimant has done as any decision given by a court in respect of a challenge to jurisdiction is a final decision. She stated that courts have been enjoined to be cautious when a similar matter brought before it is also before a court of co-ordinate jurisdiction, citing NIM Bank Ltd v. Union Bank of Nig. Ltd & ors [2004] 1 SC 143 at 158. She finally urged the court to dismiss this suit for want of jurisdiction. Having considered the processes filed, submissions made and the authorities referred to by the parties, we are of the opinion that there is only one critical issue to be resolved, which is that of competence of the action itself. Specifically, whether this court can assume jurisdiction in this matter having regard to the fact that the Lagos State High Court had in a similar matter in year 2006 in Suit No. ID/1417/2006 between the same parties (Mr. Adeyemi Saliu Olaotan and Lagos State Civil Service Commission, Commissioner for Finance Lagos State, Attorney General of Lagos State) assumed jurisdiction and on the 14th December 2009 in a considered ruling, dismissed the suit in its entirety for being statute-barred and unmaintainable. The arguments of the claimant as to the merit of the case in terms of the claimant being a statutory employee and hence not accorded the protection of the Lagos State Civil Service Rules can only be entertained if this court rules that the present action is competent. There is no dispute by parties regarding the fact that the claimant had earlier filed an action at the Lagos State High Court in which a decision had been given. Furthermore, the defendants had pleaded this suit and the court’s ruling in paragraphs 14, 15 and 16 of their statement of defence as their defence to this present suit. It is, therefore, wrong for the claimant’s counsel to argue and submit that the defendants cannot rely on the plea of estoppel per rem judicata as a bar to this suit on the grounds that the defendants did not specifically plead it. The claimant’s counsel argued that though the parties in this suit and that adjudicated upon at the Lagos State High Court are the same, the cause of action in this suit is different from that in the High Court because the cause of action in the High Court accrued on 11th April 2003 while the cause of action in this suit accrued in September 2010 when the claimant received the defendants’ letter dated 18th August 2010. She also contended that the ruling of the High Court did not finally decide the issues between the parties. In both suits, the issue is the termination of the claimant’s employment from the services of the 1st and 2nd defendants. It is clear from the reliefs being sought by the claimant particularly claims 1, 2 and 3 that the cause of action in this suit arose on 11th April 2003 when the claimant’s employment was terminated. A cause of action is the combination of facts and circumstances giving rise to the right to file a claim in court for a remedy. See P. N. Udoh Trading Company Ltd v. Sunday Abere & anor [2001] 5 SC (Pt. 2) 64 and Union Bank of Nig. Plc. v. Umeoduagu [2004] All FWLR (Pt. 221) 1552. The claimant’s right accrued on the 11th April 2003 as can be seen from the claims and paragraphed 30 of the statement of facts. Furthermore, at page 2 of the ruling of the Lagos High Court, the learned trial Judge stated as follows – As to the facts, parties have agreed that the cause of action herein arose on 11th April 2003 when the claimant’s employment was determined. The claimant’s counsel’s submission that the cause of action in this suit is a fresh one is, therefore, unmaintainable. It is the same cause of action that gave rise to the suit earlier filed at the Lagos High Court by the claimant. On the submission by the claimant that the ruling of the Lagos State High Court did not finally decide the issues between the parties, we reproduce the decision as contained at page 5 of the ruling as follows – In all therefore, the claimant having commenced this action more than three months after the accrual of his cause of action herein, (howsoever construed or calculated) his action is caught by the provisions of section 2(a) of the Public Officers Protection Law of Lagos State, and by the tenor of the decision in SANI’s case (supra) his action cannot be competent. It is statute-barred and unmaintainable. It is liable to be dismissed. It is hereby dismissed in its entirety. By this ruling, the learned trial judge declined jurisdiction to entertain this matter. We find and we agree with the defendants’ counsel that the ruling of the Lagos High Court is a final decision. A final decision is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court except on appeal. The appropriate action for the claimant is to file an appeal at the Court of Appeal against the decision of the Lagos High Court. In Nigeria Union of Teachers (NUT) v. Kogi State Teaching Service Commission & anor unreported Suit No. NIC/34/2007 delivered on May 20, 2008, this court was called upon to look into issues that had already been pronounced upon by the Kogi State High Court. Not only did this court decline to entertain the matter, it opined that the best course of action open to the applicant is to appeal the decision of the High Court and not file another action in this court on the same issues. Following therefrom, we hold that the defendants have successfully raised a valid plea of res judicata because the ruling of the Lagos State High Court is a final decision and the questions raised in that suit are the self-same questions raised in this suit. In other words, it is the self-same questions that are substantially in issue in the two suits. See Onyeabuchi v. INEC [2002] 8 NWLR (Pt. 769) 417 SC. We agree with the learned counsel to the defendants that the filing of the same case in this court amounts to an abuse of the process of court and hereby hold that the present suit which has already been adjudicated upon by the Lagos State High Court, a court of co-ordinate jurisdiction with this court is an abuse of the process of court. See Onyeabuchi v. INEC (supra), Okafor v. A. G. Anambra State [1991] 6 NWLR (Pt. 200) 659 at 681 and Okorodudu v. Okoromadu [1977] 11 NSCC 105. Having, therefore, held that this suit is incompetent, we do not deem it fit to consider the arguments of the claimant that he was not accorded the protection of the Lagos State Civil Service Rules when his employment was terminated. The reason for this is naturally the reason for which we declared the present action incompetent, which is that the claimant ought to go on appeal to the Court of Appeal. Filing an action in this court is tantamount to asking this court to sit on appeal over the decision of the Lagos State High Court. This we are incompetent to do. For all the reasons given above, we cannot entertain this suit and so we dismiss it in its entirety. Judgment is entered accordingly. We make no order as to costs. …………………………… Hon. Justice B. B. Kanyip Presiding Judge . Hon. Justice O. A. Obaseki-Osaghae Judge Hon. Justice J. T. Agbadu-Fishim Judge