IGBE V. GOV. OF BENDEL STATE & ANOR

• Pages: 54-69

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NIGERIAN SUPREME COURT CASES

[1983] N.S.C.C.

'It is not necessary, in considering the question of

res judicata,

that there

should be an express finding in terms if, when you look at the judgment and

examine the issues raised before the court, you see that the point came to

be decided as a separate issue for decision, and was decided between the

parties.'

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5

Lord Romer, in delivering the judgment of the privy Council in

New Brunswick

Railway

Co. v.

British and French Trust Corporation Ltd.

(1939) A.C.1, 43 said

'It is no doubt true to say that whenever a question has in substance been

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decided, or has in substance formed the ratio or been fundamental to the

decision in an earlier action between the same parties each party is estopped

from litigating the same question thereafter'

(Italics mine).

The death of Aro Orija without issue and the devolution of title to his estate on

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Oronnaiye was decided in favour of the defendant by Owo Grade B Customary

Court and this should have earned the appellant dismissal of his action in the Grade

A Customary Court.

For the above reasons and the reasons set out in the judgment of my learned

brother, Aniagolu, J.S.C. I would also dismiss the appeal and I hereby dismiss it

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with N300.00 costs and affirm the decision of the Federal Court of Appeal.

Appeal dismissed.

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IGBE V. GOV

. OF

BENDEL STATE & ANOR.

SAMUEL O.V. IGBE



APPELLANT

V

1.

THE GOVERNOR

OF BENDEL STATE



RESPONDENTS

2.

THE ATTORNEY-GENERAL

OF BENDEL STATE

SUIT NO. SC 8/1982

SUPREME COURT OF NIGERIA

FATAI-WILLIAMS, C.J.N.

SOWEMIMO,



J.S.C.

BELLO,



J.S.C.

OBASEKI,



J.S.C.

ESO,



J.S.C.

ANIAGOLU,



J.S.C.

UWAIS,



J.S.C.

11th February, 1983

Commercial Law - Contract - Remedy for breach of contract of service of public

officer - Appropriate remedy - Award of damages.

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Constitutional

Law -

Interpretation of statutes - Reading provisions together -

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Subsections (1) and (2) of S.275 of 1979 Constitution wrongly read together.

IGBE V. GOV

. OF BENDEL STATE & ANOR.

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Words and Phrases - "Until other provisions are made" in subsection (1) of

S.275 of 1979 Constitution.

Practice and Procedure - For removal - Member of Public Service Commission

5

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(Civil Service Commission) of State - S.182 of 1979 Constitution.

ISSUES:

1.

What is the effect of a purported removal of a member of a State's Public Service

Commission (now Civil Service Commission) from office, announced through

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a State Proclamation?

2.

What is the correct procedure that ought to be adopted to lawfully remove a

member of the Public Service Commission of a State?

3.

What is the true and proper interpretation of section 275 of the 1979 constitution?

Should sub-sections (1) and (2) of the said section be construed together in

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determining whether the cessation of the Public Service Commission of a State

necessarily means the cessation of the appointment of a member thereof?

4.

Whether the phrase, "until other provisions are made" in Section 275 (1) of the

1979 constitution, refers to the function of an office or to the office holder.

5.

What is the appropriate remedy for a breach of a contract of service, where

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the post has been filled by somebody else?

FACTS:

The plaintiff/appellant was appointed a full time member of the Public Service

Commission of Bendel State on the 1st of August, 1979. He accepted the appoint-

ment, which was for five years, in writing. Some months later, there was a change

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in the administration of the state and by virtue of a State Proclamation the appoint-

ments of members of all statutory corporations in the state were revoked. The

plaintiff was not officially informed that his appointment had been revoked or ter-

minated, despite a letter written by his solicitor to the Government asking for clari-

fication. Sometime after this, the names of the newly elected members of the State

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Civil Service Commission (Substitute for the Public Service Commission) were an-

nounced through the media, whereupon the plaintiff instituted an action against the

defendants claiming a declaration that his purported removal be declared null and

void; a declaration that the procedure used was wrong, and damaging. The trial

Judge, after considering the evidence, found for the plaintiff, declared the pur-

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ported removal null and void and awarded damages for breach of contract of ser-

vice. This decision was however set aside by the Federal Court of Appeal which

was of the opinion that the provisions of Section 275 (1) and (2) of the 1979 con-

stitution should be read together, the result of this logic being that, since the body

of which the plaintiff was a member had ceased to exist by virtue of a constitutional

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provision, the plaintiff's appointment as a member of the defunct body should

cease to exist too. The plaintiff thus further appealed to the Supreme Court.

HELD:

1.

The removal of the plaintiff/appellant by the Governor as a full time member of

the Public/Civil Service Commission without complying with the proper

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procedure and without just cause is unconstitutional,

ultra vireq,

null and void.

Since the appellant held the office of member of the Bendel State Public Service

Commission by virtue of the 1964 constitution of Bendel State, he should have

been deemed to hold the office, notwithstanding the change of name of the

Commission to 'Civil Service Commission' under the 1979 constitution.

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2. If the appellant was to be removed from office at all, he could only be lawfully

removed by following the procedure laid down in section 182 of the 1979

constitution, and this procedure necessarily involves the State House of

Assembly.