MARTINS V. FEDERAL ADMINISTRATOR-GENERAL & ANOR.

• Pages: 85-88

MARTINS V. FEDERAL

ADMINISTRATOR-GENERAL & ANOR.

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65

I would not at present award the Administrative Officer costs, but would give

him leave to apply by Notice of Motion within four weeks if he wishes to ask for

them.

Unsworth, F.J.

I concur.

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Taylor, F.J.

I concur.

Appeal dismissed.

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MARTINS V. FEDERAL

ADMINISTRATOR-GENERAL & ANOR.

J. AYORINDE MARTINS

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APPELLANT

V

1.

FEDERAL ADMINISTRATOR-GENERAL

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RESPONDENTS

2.

FEDERAL PUBLIC SERVICE COMMISSION

SUIT NO. FSC 107/1961

FEDERAL SUPREME COURT

ADEMOLA,

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C.J.F.

UNSWORTH,

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F.J.

BAIRAMIAN,

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F.J.

5th March, 1962.

Practice and Procedure - Motion to Dismiss Action - Supreme Court (Civil

Procedure) Rules, 0. XXVII, r.1 - Summons for Declaration issued and served

- Plaintiffs pleading of facts not yet filed - Motion to Dismiss premature -

Rules of the Supreme Court of Judicature (England), 1888, 0.25 r.4.

ISSUE:

1. What is the effect of a motion to dismiss an action made before a plaintiff has

filed his pleadings?

FACTS:

Plaintiff/Appellant had retired from the public service by notice under s.9(1) of

the Pensions Act; later he sued for a declaration that the notice given was invalid

and his retirement wrongful. The defendants applied under 0. XXVIII, r.

1

of the

Supreme Court (Civil Procedure) Rules, asking that the suit be dismissed on the

ground that he, being a public servant, held his office during the pleasure of the

Crown and had no remedy for compulsory retirement. The trial Judge dismissed

the suit substantially on that ground. The facts relied upon by the plaintiff in sup-

port of his claim had not been pleaded at the time the Motion was heard. The

Plaintiff/Appellant appealed to the Federal Supreme Court.

It was argued before the Federal Supreme Court that the High Court confused

Compulsory Retirement under the Pensions Act with Dismissal; and that while the

Plaintiff/Appellant in the case of Compulsory Retirement would be entitled to ques-

tion the legality of such retirement of the Courts, no such right would exist in the

event of Dismissal.

The Federal Supreme Court stated that the question before it was whether, hav-

ing regard to the fact that the Defendants/Respondents moved the High Court under

Order XXVIII, r.1, it was competent for the High Court to dismiss the claim at the

stage reached in the proceedings.

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