(2016) LPELR-41611(CA)

Transcription

1 ALI v. CBN & ORS CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna UWANI MUSA ABBA AJI IBRAHIM SHATA BDLIYA ON WEDNESDAY, 23RD MARCH, 2016 Suit No: CA/K/483/2014 Before Their Lordships: OLUDOTUN ADEBOLA ADEFOPE-OKOJIE MUHAMMED MUBARAK ALI Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) 1. CENTRAL BANK OF NIGERIA 2. GOVERNOR, CENTRAL BANK OF NIGERIA - Respondent(s) 3. HON. ATTORNEY-GENERAL OF THE FEDERATION RATIO DECIDENDI

2 1. ADMINISTRATIVE LAW - ORDER OF MANDAMUS: Meaning and nature of an order of mandamus; when the court will issue an order of mandamus "The definition of "Mandamus" was given by the Supreme Court in the case of Associated Discount House Limited v The Hon. Minister of The Federal Capital Territory (2013) 8 NWLR Part 1357 Page 493 at 509 Para B-D per Akaahs JSC, reading the lead ing judgment, as follows: Mandamus which is derived from the Latin word 'Mandare' meaning to enjoin is an extraordinary writ issued by a Court of competent jurisdiction to an inferior Tribunal, a public official, an administrative agency, a corporation, or any person compelling the performance of an act usually only when there is a duty under the law to perform an act, the plaintiff has a clear right to such performance, and there is no other adequate remedy available. It is also an extraordinary remedy which is issued usually to command the performance of a ministerial act. It cannot be used to substitute the Court's judgment for the defendant's in the performance of a discretionary act. It was held by Ogundore JSC in Governor of Oyo State v Folayan (1995) 8 NWLR Part 473 Page 292 at Para G-H that it is not an appeal. It is the legality of the decision and not the wisdom that the Court looks into. Comprehensively, the Supreme Court, in the locus classicus of Alade Shitta Bey v Federal Public Service Commission (1981) 7 SC Page at gave an expansive definition of this writ, per Idigbe JSC as follows: "It is well known that the principal purpose of mandamus is to remedy defects of justice; and although it is a discretionary remedy, Courts of justice must always bear in mind this principal purpose of the order. With very great respect to their Lordships of the Court of Appeal and of the Court of first instance, although "the Court" - as they have observed in their judgments, following a passage set down in Halsbury Laws of England - "will, as a general rule, and in exercise of its discretion refuse an Order of Mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective" see: [Halsbury Laws of England 3rd Edition Vol. II p. 107, Paragraph 200; also Halsbury Laws 4th Edition Vol. l, p. 135, Paragraph mandamus "may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."... It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good government there ought to be one..." The order of mandamus, of course, only issues to a person or corporation requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty; but if the duty imposed by a statutory provision leaves a discretion in whom it is imposed as to the mode of performance, mandamus will not issue to compel performance of that duty in a specific way. In compelling performance of public duty by an inferior Tribunal or a government functionary, the Court will consider carefully whether the duty is of a judicial, quasi-judicial or of a merely ministerial nature. lf the duty is of judicial, quasi-judicial nature, the order will issue only where there has been a refusal to perform that duty in any event, but not where it was performed one way in preference to another or in an alternative manner. lf, however, the duty is of a ministerial character the order of mandamus will issue to compel the specific act to be done in the manner which appears to the Court to be lawful...lt is said that, as a legal term, the expression "ministerial" has no single fixed meaning. lt is sometimes used to describe any duty the discharge of which does not involve any element of discretion or independent judgment; on some other occasions, it has been used, "more narrowly, to describe the issue of formal instructions, in consequence of a prior determination which may or may not be of a judicial character, that direct action be taken in relation to another's person or property..." Per ADEFOPE-OKOJIE, J.C.A. (Pp. 8-12, Paras. E-B) - read in context 2. ADMINISTRATIVE LAW - ORDER OF MANDAMUS: Who can be issued an order of mandamus "In determining whether the Respondents are persons against whom the writ can issue, they come, I hold, under the definition "a body, corporation, public official or a person" required to do some particular thing which appertains to his or their office". The Appellant, as staff of the 1st Respondent, is a Public Servant by virtue of Section 24 of the Pensions Act 1979 (then in force) and the 2nd Schedule thereto, as contained in Cap 346 Laws of the Federation 1990, with an entitlement, by Section 15(2) of the said Act to payment of pension.?by Section 173(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any benefit to which a person is entitled by way of pension or gratuity, shall not be withheld. The Section stipulates as follows: SECTION 173 (PROTECTION OF PENSION RIGHTS.) 1 Subject to the provisions of this Constitution, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law. 2. Any benefit to which a person is entitled in accordance with or under such law as is referred to in Subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct. 3. Pensions shall be reviewed every five years or together with any Federal civil service salary reviews, whichever is earlier. 4 Pensions in respect of service in the public service of the Federation shall not be taxed. It is clear from the foregoing, that the Respondents were "persons" to whom any order of Mandamus could be made. They also had a duty under the law to perform this duty and the Appellant had a right to the performance of this duty. See CBN v Amao (2002) 76 NWLR Part 1219 Page 271 from Para C-A per Onnoghen JSC. I accordingly hold, from the cases above that the Respondents can be compelled by an order of mandamus."per ADEFOPE-OKOJIE, J.C.A. (Pp , Paras. C-A) - read in context

3 3. ADMINISTRATIVE LAW - ORDER OF MANDAMUS: Whether an order of mandamus can be granted to protect private interest "It is undoubtedly true, as submitted by the learned Counsel to the Respondents and as held by the lower Court, that where rights emanate from a mere contract of master and servant and there is a breach thereof, the appropriate remedy is an action for wrongful dismissal. Where however, rights have been declared by a Court, under the contract of employment, as in this case, but which declarations have not been acted upon, the aggrieved employee can, in appropriate cases, I hold, bring an action to enforce the performance of those rights. Giving a blanket interpretation to the principle of mandamus to exclude all disputes with respect to master and servant, as both learned Counsel and the lower Court have done, will, I hold, be negating the very foundation of the principle for which the order was created. lt was held, by the Supreme Court in the case of Associated Discount House Ltd v FCT Supra that the principal purpose of the writ is to remedy defects of justice, adjuring Courts to always bear this principal purpose in mind. It should be used, the Court held, where there is refusal to perform a duty. Holding otherwise, would mean that a case, such as Shitta Bey v Federal Public Service Commission Supra, which was for an order of mandamus to compel the Federal Public Service Commission to issue a directive for the employee's resumption of duty in line with an earlier judgment of the Court declaring his suspension and retirement from service as illegal, null and void, would never have been granted, on the ground that it was a private matter, being between an employer and employee. Interpreting this doctrine as the lower Court and Respondents' Counsel desire, would also mean that this order should not have been allowed in the case of CBN v Amao Supra. In that case, the Respondents at the trial Court were granted declarations as to the invalidity of the form of payment of pension as being contrary to the conditions that governed their employment. An order of mandamus was granted directing the Appellant to pay to the Respondents all accrued pensions on emoluments earned. An appeal from the judgment of the Court of Appeal affirming this judgment was dismissed by the Supreme Court. This case, also against the CBN, as is the present one, was between employees against their employer. It was yet again held by the lower Court and submitted by learned Counsel to the Respondents that unless it is in the public interest mandamus will not lie in respect of an essentially private right nor to resolve a private dispute. Liman J having held that the relationship between the parties is that of master/servant for which reinstatement will not lie, the dispute is thus a private and not a public dispute. The learned authors of Halsbury's Laws of England Third Edition, Volume 11 at Page 52 Para 107 illustrating the requirement that the duties must be public and that it will not issue for a private purpose, for the enforcement of a merely private right, referred to the cases of R v London Assurance Co (1822) 5 B & Ald 899 at 901 and R v Bank of England (1819) 2 B & Ald 620. In the former case, a mandamus to inspect churchwarden's account was refused because the Applicant's had shown no special or public ground for such inspection. It was held "His right as a parishioner is a mere private right, for which the Court will not grant it." In the latter case, however, it was held that a mandamus will lie to compel a company to perform its statutory duties. In the English case of R v Registrar Joint Stock Companies (1888) 27 QBD 131 cited by His Lordship Idigbe JSC in the case of Shitta Bey v Federal Public Service Commission Supra, the Writ of Mandamus was issued to compel the Registrar of Joint Stock Companies to file a contract under Section 25 of the Companies Act 1857 which he had refused to file on the ground that it was insufficiently stamped and that there was another appropriate way of questioning his refusal. Also in the case of R v Thomas (1892) 1 QB 426, also cited in that case, mandamus was issued where an application for the license of a beer house was refused, without the grounds for such refusal having been stated. All these instances, it is clear, are in respect of private and not public agreements. Indeed a similar argument, as put up by the Respondents and which was the stance of the lower Court, was put to their Lordships in the case of Shitta Bey v Federal Public Service Commission Supra. ldigbe JSC set out this contention, thus: "It was submitted to us, on behalf of the respondent, that mandamus never issues to preserve or enforce a personal or a private (as opposed to a public) right. That submission, with respect to learned counsel for the respondent, seems to me a very wrong approach to the issue. The way to look at the point in issue is this: for a mandamus to be issued. the law is that "there must be a legal right on the part of the applicant to the performance by the person or body against whom he applies. of some duty of a public and nor merely private character" (see Short: op. cit. Paragraph 228 at page The legal right may be of a personal (i.e. private or public nature. In my judgment, the touchstone on this topic is to be found in the statement of Lord Ellenborough, O., in R.v. Archbishop of Canterbury 8 East 22, which I respectfully adopt, that "there ought in all cases to be a specific legal right as well as want of a specific legal remedy, in order to found an application for a mandamus." Underlining Mine. It is therefore clear that the argument that an action between an employer and its employee concerns a private right of an employee and can never be the subject of an action of mandamus is thus too wide a statement to be tenable, I hold. I must not be misunderstood to be saying that where there is wrongful termination of employment, a Plaintiff, rather than institute an action for the wrongful termination of his employment should bring an action for mandamus. To so hold would be running counter to decided authorities on the subject. What I am saying is that where declarations are sought and granted by the Court, in an instance such as the present, yet not complied with, as was also the case in Shitta Bey v. Federal Public Service Commission Supra, this refusal, I hold, can be the subject of an action in mandamus. The important question should be whether there is a legal right of the applicant to protect by the body against whom the relief is sought. This right, I hold, may be of a private or a public nature." Per ADEFOPE-OKOJIE, J.C.A. (Pp , Paras. A-E) - read in context

4 4. JUDGMENT AND ORDER - CONSEQUENTIAL ORDER: Whether an incidental order can be made where the court has refused the principal order "... In my oft cited case of Shitta Bey v Federal Public Service Commission Supra an argument was brought up by the Respondent that the Appellant should have asked for a positive declaratory relief that the Respondent should retain him in office. His Lordship ldigbe JSC rejected this argument summarily for having no substance, it having already been pronounced that the Appellant's retirement was invalid and that he still has a legal right to remain in office. His Lordship cited the case of State of Modhya Pradesh v. Bhoilol Bhai and Ors. (1964) A.I.R. (S.C.) 1007 where the Supreme Court of India held: "We see no reason to think that the High Courts have not got this power. lf a right has been infringed - whether a fundamental right or a statutory right - and the aggrieved party comes to the Court for enforcement of the right it will not be given complete relief if the Court merely declares the existence of such right or the fact that the existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the government or other statutory authority not to take action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed... the Courts would give necessary relief by making an order in the nature of an injunction. It will hardly be reasonable to say that while the Court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the Court must still refuse. where the right has been actually invaded to give consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely outshines the illegal order made. For the (above) reason... we are clearly of the opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment {i.e. mandamus to reply to Government) of the money realized by the Government without the authority of law..." Underlining Mine Applying the above principle to the instant case, the lower Court, further to the declaratory orders made by Liman J, had the power to give consequential orders for the enforcement of those rights, by way of the order of mandamus sought for payment of the outstanding salaries. These orders are, indeed, consequential to the declarations made by Liman J. As held in the case of Kayili v Yilbuk (2015) 7 NWLR Part 7457 Page 26 at 80 Para E-F per Fabiyi JSC, 'A Court con make an order which appears incidental and necessary for a proper and final determination of a cause before it. It can be made, though not claimed, so as to obviate further or later disputes between the parties. Defining "consequential order" the Supreme Court, per Ngwuta JSC,in the case of Eligwe v Okpokiri (2015) 2 NWLR Part 1443 Page 348 at Para G-A held it to be "an order following from the judgment...it is essentially one which makes the principal order effective and effectual or which follows necessarily as being incidental to the principal order in the matter"?it is indeed a correct principle of the law, as held by the lower Court, that once a principal claim is dismissed, no relief incidental to the principal claim can be granted as there would be no principal order on which such incidental order can stand or lean. See Eligwe v Okpokiri Supra at 373 Para A. Where, however, as in the instant case, two of the principal reliefs have been granted, a consequential relief to give effect to those orders should be granted."per ADEFOPE-OKOJIE, J.C.A. (Pp , Paras. F-A) - read in context 5. LABOUR LAW - WRONGFUL TERMINATION OF EMPLOYMENT: Remedies available for wrongful termination of employment "The law is that if the termination or dismissal of staff is wrongful, in a contract that does not have statutory flavour, as found by Liman J in this case, the remedy is in payment of his salary and other entitlements which had accrued and were payable for the period for which the employee should have been given notice of termination. See Osisanya v Afribank (Nig.) plc (2007) 6 NWLR part 1031 page 565 at 586 Para A-G per Ogbuagu JSC. See also First Bank of Nigeria plc v Mmeka (2015) 6 NWLR Part 1456 page 507 at 5zo Para E - G per saulawa JCA. In Jombo v Petroleum Equalisation Fund (Management Board) (2005) 14 NWLR Part 945 Page 443, the distinction was given by Oguntade JSC at Page 467 Para A-B between termination of the employee, where he is entitled to receive his terminal benefits, and a dismissal, which often entails a loss of terminal benefits."per ADEFOPE-OKOJIE, J.C.A. (Pp , Paras. F-D) - read in context

5 OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Kaduna Division, delivered on the 24th February 2014 by Evelyn Anyadike J in an application for judicial review. The facts leading to the application before the lower Court are that the Appellant was employed by the 1st Respondent on the 23rd day of December 1981 and was sometime in 1989 transferred to its Kaduna Branch, holding as his last office, Manager (Banking). In October 1993, he was issued with a query questioning why he signed cheques above his limits involving the revenue of Kaduna State. He replied, but he was charged before the Miscellaneous Offences Tribunal for causing wrongful loss of revenue to the Kaduna State Government. While the charges were pending before the tribunal, he was served, on 6/6/94, with a letter of dismissal from the service of the 1st Respondent. He was eventually discharged of the offences. Aggrieved, he instituted an action challenging the dismissal before the Federal High Court, Kaduna Division and requesting that he be reinstated to his former position. 1

6 Liman J, before whom the suit was heard, declared him to have been wrongfully dismissed. He however refused the claim for reinstatement, holding the employment to have been without statutory flavour. He observed that there was no claim for damages. The Appellant, in consequence of this judgment, requested for payment of his outstanding salaries and terminal benefits from the 1st Respondent, who refused same, on the grounds that the Judgment of the Court did not contain the claims sought. In consequence, he instituted an action for judicial review before the lower Court, seeking by his Motion on Notice dated 9/12/05 and filed on 12/12/05, the following reliefs: a. An order of mandamus compelling the respondents particularly the 1st and 2nd respondents acting through their servants and agents i.e Deputy Governor (policy and Corporate services) to pay to the Applicant all accrued entitlement by way of gratuity and pension inclusive of unpaid salaries pursuant to the effect of the judgment of this Honourable Court in M.M Ali v Central Bank of Nigeria suit No: FHC/KD/CS/21/97 delivered on the 77n of Moy 2005 at the Federal High Court Kaduna. 2

7 b. A declaration and an order that pursuant to the judgment of the Honourable Hon Mr Justice A.M Liman delivered in M.M Ali V Central Bank of Nigeria suit No: FHC/KD/CS/27/97 on the 17th of May 2005 at the Federal High Court Kaduna the applicant is entitled to all terminal benefits accruing from the determination of his contract of service as described above. c. An order directing the defendants to provide and render account of the quantum of the applicants' terminal benefits i.e pension and gratuity from the date of the purported dismissal from the employment of the 1st respondent till date. d. An injunction restraining the 1st defendant acting through her servants and agents from distorting the quantum of the applicants entitlements and terminal benefit or doing anything to obstruct the payment to the applicant of his due rights and entitlements to gratuity and pension at the prevailing rate. The lower Court, coram Anyadike J, refused the application on the grounds that the reliefs sought were not incidental to the Judgment of Liman J but were seeking fresh reliefs which did not flow from the judgment. In addition that an order of mandamus cannot 3

8 be granted in respect of a private duty. Aggrieved with this refusal, the Appellant has filed the instant appeal, dated 22nd May 2014 and filed on 23rd May Subsequent to the grant of leave by this Court, on 17/6/15, to file the Record of Appeal out of time and the deeming of the same as properly filed, the Appellant filed on 18/5/15 his Brief of Argument. The 1st and 2nd Respondents filed their Joint Brief of Arguments on 17/6/15. The Appellant, in response, filed a Reply on 3/7/15. The 3rd Respondent filed no Brief of Argument and did not participate in the appeal. In the Appellant's Brief of Arguments, E O. Isiramen Esq of J.B. Daudu & Co, formulated the following issues for determination: 1. Whether the trial Court was right to have held that the order of mandamus sought by the Appellant was a ploy to ask the Court to sit on appeal on its earlier judgment and not give effect to the Court's positive declaratory judgment? 2. Whether the Appellant is entitled to the benefits sought to be computed by an order of mandamus going by the condition of service with the 1st Respondent and the clear implication of the judgment declaring 4

9 his dismissal null and void? 3. Whether the relationship between the Appellant and the Respondents is such that the Respondents cannot be made to perform their public duty by an order of mandamus? 1st and 2nd Respondents, in their Brief of Arguments settled by Oladipo Tolani, Kabir Momo hand Nathan Dandien of Abdullahi Ibrahim and Co, formulated the following issues for the Court's determination: 1. Whether the Appellant's claim by way of judicial review for an order of mandomus at the lower Court flow directly and naturally from the judgment of the Federal High Court, corom Liman J, in suit No. FHC/KD/Cs/21/1997-M.M Ali v CBN delivered on 17/5/2005 (ground 1) 2. Whether the lower Court was right when it refused the Appellant's application for judicial review by way of Mandamus. The issues that I consider that arise for determination, culled from the issues raised by both counsel, summarized for succinctness, are the following: 1. Whether the 1st Respondent is a body that can be compelled by an order of mandamus. 2. Whether the Appellant was entitled to be paid retirement benefits by the 1st Respondent upon the 5

10 termination of his employment. 3. Whether the lower Court was right when it refused the Appellant s application for judicial review by way of Mandamus. In the resolution of these issues, there undoubtedly will be an overlap. The 1st issue for determination is: Whether the 1st Respondent is a body that can be compelled by an order of mandamus. Appellant's Counsel submits that the crux of the Appellant's case was to compel the Respondents to give effect to the judgment of Liman J and not to sit on appeal over it. Citing the cases of FBN PLC v Mmeka (2015) 6 NWLR part 7456 Page 507 and Jombo v PEFMB (2005) 74 NWLR Part 945 Page 443 he submitted that where a contract of employment is terminated, the employee is accorded the privilege of receiving terminal benefits. The failure of the Respondents to comply is a contravention of Section 173(2) of the 1999 Constitution thus requiring the application for mandamus to compel the 1st Respondent, which by the Pensions Decree No. 102 of 1979 now Pensions Act of 2004, Section 15(2) is a public service, to perform their public duty. Citing Adeyemi-Bero v LSDPC (2013) 5 NWLR Part 7356 Page 238 6

11 at 305 and Ogbolosingho v BSIEC (2015) 6 NWLR Part 7455 Page 377 on the principles of res judicata, he submitted that this principle cannot be sustained in this case. He cited in addition, the cases of Shitta Bey v Federal Public Service Commission (1981) 7SC Page 40 and CBN v Amoo (2011) All FWLR part 806 Page 883. Learned Counsel further contended that during the subsistence of the relationship, the Central Bank Decree No. 24 of 1991 was in force and the Appellant's employment was made pursuant to Section 14 of Decree No. 24 of By Section 14(3) of the CBN Decree No. 24 of 1991, the Board of CBN is empowered to stipulate pensions and other retirement benefits for CBN employees, which by the CBN Staff Manual, cannot prejudice the right of the employee to receive same. By the combined provisions of Section 15(2) of the Pensions Act, Section 318 (1) and Section 173 of the 1999 Constitution, the 1st Respondent qualifies as public service and imposed on them is a public duty to pay terminal benefits. The cases of Amasike v Registrar General CAC (2006) 3 NWLR Part 968 Page 462 and Atta v COP (2003) 17 NWLR Para 847 page 250 relied upon by the lower Court 7

12 in refusing the order on the ground that it was a private matter, were wrongly applied, he submitted. Learned Counsel to the 1st and 2nd Respondents (hereafter referred to by me as "Respondents"), citing the principles that apply for the order of mandamus to be granted, submitted that the Court in granting this order is acting in a supervisory and not appellate jurisdiction. No public duty of a public nature is imposed on the Respondents for the payment of terminal benefits. As the Appellant's application for mandamus is for reliefs which emanated from his contract of employment which is in the mould of master and servant, lacking statutory flavour, it is in the nature of a private right regulated by private law, for which mandamus does not lie and cannot issue. He referred to Judicial Remedies in the Public Law by Sweet and Maxwell and cited the cases of Governor of Oyo State v Folayan (1993) 8 NWLR Part 413 Page 292, Ngo v Green (2015) 7 NWLR Part 1459 Page 598. The definition of "Mandamus" was given by the Supreme Court in the case of Associated Discount House Limited v The Hon. Minister of The Federal Capital Territory (2013) 8 NWLR Part 1357 Page 8

13 493 at 509 Para B-D per Akaahs JSC, reading the lead ing judgment, as follows: Mandamus which is derived from the Latin word 'Mandare' meaning to enjoin is an extraordinary writ issued by a Court of competent jurisdiction to an inferior Tribunal, a public official, an administrative agency, a corporation, or any person compelling the performance of an act usually only when there is a duty under the law to perform an act, the plaintiff has a clear right to such performance, and there is no other adequate remedy available. It is also an extraordinary remedy which is issued usually to command the performance of a ministerial act. It cannot be used to substitute the Court's judgment for the defendant's in the performance of a discretionary act. It was held by Ogundore JSC in Governor of Oyo State v Folayan (1995) 8 NWLR Part 473 Page 292 at Para G-H that it is not an appeal. It is the legality of the decision and not the wisdom that the Court looks into. Comprehensively, the Supreme Court, in the locus classicus of Alade Shitta Bey v Federal Public Service Commission (1981) 7 SC Page at gave an expansive definition of this writ, per Idigbe JSC 9

14 as follows: "It is well known that the principal purpose of mandamus is to remedy defects of justice; and although it is a discretionary remedy, Courts of justice must always bear in mind this principal purpose of the order. With very great respect to their Lordships of the Court of Appeal and of the Court of first instance, although "the Court" - as they have observed in their judgments, following a passage set down in Halsbury Laws of England - "will, as a general rule, and in exercise of its discretion refuse an Order of Mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective" see: [Halsbury Laws of England 3rd Edition Vol. II p. 107, Paragraph 200; also Halsbury Laws 4th Edition Vol. l, p. 135, Paragraph mandamus "may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."... It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good 10

15 government there ought to be one..." The order of mandamus, of course, only issues to a person or corporation requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty; but if the duty imposed by a statutory provision leaves a discretion in whom it is imposed as to the mode of performance, mandamus will not issue to compel performance of that duty in a specific way. In compelling performance of public duty by an inferior Tribunal or a government functionary, the Court will consider carefully whether the duty is of a judicial, quasi-judicial or of a merely ministerial nature. lf the duty is of judicial, quasi-judicial nature, the order will issue only where there has been a refusal to perform that duty in any event, but not where it was performed one way in preference to another or in an alternative manner. lf, however, the duty is of a ministerial character the order of mandamus will issue to compel the specific act to be done in the manner which appears to the Court to be lawful...lt is said that, as a legal term, the expression "ministerial" has no single fixed 11

16 meaning. lt is sometimes used to describe any duty the discharge of which does not involve any element of discretion or independent judgment; on some other occasions, it has been used, "more narrowly, to describe the issue of formal instructions, in consequence of a prior determination which may or may not be of a judicial character, that direct action be taken in relation to another's person or property... In determining whether the Respondents are persons against whom the writ can issue, they come, I hold, under the definition "a body, corporation, public official or a person" required to do some particular thing which appertains to his or their office". The Appellant, as staff of the 1st Respondent, is a Public Servant by virtue of Section 24 of the Pensions Act 1979 (then in force) and the 2nd Schedule thereto, as contained in Cap 346 Laws of the Federation 1990, with an entitlement, by Section 15(2) of the said Act to payment of pension. By Section 173(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any benefit to which a person is entitled by way of pension or gratuity, shall not be withheld. The 12

17 Section stipulates as follows: SECTION 173 (PROTECTION OF PENSION RIGHTS.) 1 Subject to the provisions of this Constitution, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law. 2. Any benefit to which a person is entitled in accordance with or under such law as is referred to in Subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct. 3. Pensions shall be reviewed every five years or together with any Federal civil service salary reviews, whichever is earlier. 4 Pensions in respect of service in the public service of the Federation shall not be taxed. It is clear from the foregoing, that the Respondents were "persons" to whom any order of Mandamus could be made. They also had a duty under the law to perform this duty and the Appellant had a right to the performance of this duty. See CBN v Amao (2002) 76 NWLR Part 1219 Page 271 from Para C-A per Onnoghen JSC. I accordingly hold, from the cases above that the Respondents can be 13

18 compelled by an order of mandamus. I resolve the 1st issue for determination in favour of the Appellant. The 2nd issue for determination is: Whether the Appellant was entitled to be paid retirement benefits by the 1st Respondent upon the termination of his employment. The letter of employment of the Appellant as Senior Supervisor, dated 14/9/81, tendered as Exhibit A before Liman J, while stating his commencement salary stipulated "that the appointment is pensionable...,.your service with the Bank will be governed by the Bank's regulations in force from time to time". The Staff Manual of the 1st Respondent, tendered as Exhibit J and contained on Pages of the Record of Appeal, stipulates in Chapter 23 the pension rights of employees, which right is stated to be available to all staff who have served for at least 15 years. Also stated is the entitlement of staff to gratuity with stipulations as to the manner of calculation. The law is that if the termination or dismissal of staff is wrongful, in a contract that does not have statutory flavour, as found by Liman J in this case, the remedy is in payment of his salary and other 14

19 entitlements which had accrued and were payable for the period for which the employee should have been given notice of termination. See Osisanya v Afribank (Nig.) plc (2007) 6 NWLR part 1031 page 565 at 586 Para A-G per Ogbuagu JSC. See also First Bank of Nigeria plc v Mmeka (2015) 6 NWLR Part 1456 page 507 at 5zo Para E - G per saulawa JCA. In Jombo v Petroleum Equalisation Fund (Management Board) (2005) 14 NWLR Part 945 Page 443, the distinction was given by Oguntade JSC at Page 467 Para A-B between termination of the employee, where he is entitled to receive his terminal benefits, and a dismissal, which often entails a loss of terminal benefits. By the principles above, the Appellant, who was held by Liman J to have been wrongfully dismissed, was entitled, I hold, to payment of his outstanding salaries, his pension, gratuity and other terminal benefits. From the Appellant's claim, he was dismissed on 6th June By his letter of appointment, Exhibit A, his appointment may be terminated by the giving of one month's notice or payment of one month's salary in lieu of notice. The date of computation of his benefits should thus be from his 15

20 appointment on 14th September 1981 to 6th July 1994, taking into consideration the one month's salary he was entitled to in lieu of notice. It has not been disputed by the parties in this case that the Appellant was entitled to be paid retirement benefits by the 1st Respondent following the determination of his employment. The contention of the Respondents, however is that in the initial suit before Liman J, he did not plead nor make any alternative claim for terminal benefits, nor give evidence to serve as a basis for any monetary claim for pension or any form of entitlement. He can thus not by way of application for judicial review relitigate the action by praying for reliefs he had the opportunity to claim for in the initial action, since both emanate from the same breach. To do so, they said, would be litigating piecemeal and the suit before the lower Court, tantamount to creating a new cause of action. There being no appeal against the judgment of Liman J refusing to award damages, the claim before the lower Court cannot be sustained. The ultimate resolution of the 2nd issue for determination on whether the Appellant was entitled to be paid his 16

21 retirement benefits, will depend, in consequence on the resolution of the 3rd issue. The 3rd issue for determination is: Whether the lower Court was right when it refused the Appellant's application for judicial review by way of Mandamus. The lower Court, on whether it could grant an order of mandamus, cited the cases of Amosike v Registrar General CAC (2006) 3 NWLR part 968 Page 462 and Atto v COP (2003) 17 NWLR Part 847 Page 250, decided by the Court of Appeal and held that the remedy will not lie unless it is in the public interest, neither will it lie to order restoration to an office that is essentially of a private character, nor to resolve a private dispute. Liman J having held that the relationship between the parties is that of master/servant for which reinstatement will not lie, the dispute is thus a private and not a public dispute for which mandamus will not lie, she held. It set out the various submissions of Counsel and summarized the purport of the application before the Court, at Page 109 of the Record, thus: The grouse of the Applicant now is that, as contained in the affidavits in support, by setting aside the 17

22 dismissal of the Applicant, his right to receive gratuity, pension and other entitlements from the 15th Respondent was restored based on which an order of mandamus could be issued against him to carry out its public duty. By necessary implication therefore the Applicant is approaching this Court for a consequential order flowing from the judgment" It defined a consequential order as not merely incidental to a decision, but necessarily flowing from and consequent upon it, to give effect to the judgment and not one that will grant a fresh and unclaimed or unproven relief. It thence held: "I am of the view that the reliefs of the Applicant are fresh and have raised issues of fact which do not flow directly from the judgment and as such cannot be subject to review, See Minister of Lagos, Mines and Power and Another v Akin Olugbade and Ors (1974) Vol g NSCC 489. To grant any consequential order in the nature of the Applicant's Payer A-D would in fact contradict the substantive and operative part of the judgment and would amount to sitting on appeal over the Courts own judgment. Above all, once a principal claim or relief is sought in an 18

23 action and dismissed as in reliefs C,D and E in the judgment, it is logical that no relief incidental to the principal relief nor consequential thereto can be granted, Awoniyi v Register Trustees of the Rosicrucian Order Amorc (2010) 10 NWLR part 676 Page 522. It is for the above reasons that I hold that the facts of his application differ from the case of Shitta-Bey v FPSC Supra in many regards" The lower Court concluded: "In the final analysis my findings are that there is no missing link in the judgment, no ambiguity in its meaning and intention and it is a correct representation of the intention of the Court and cannot be revisited to make a consequential order entitling the Applicant to a relief he has not proved in law..." In support of the lower Court's decision that the remedy will not lie unless it is in the public interest, neither will it lie to order restoration to an office that is essentially of a private character or the resolution of a private dispute of master and servant, the Respondents' Counsel contends that the employment of the Appellant, being mere master/servant, as held by Liman J, is regulated by private law, for which 19

24 mandamus cannot issue. In "Judicial Remedies in Public Law" by Sweet and Maxwell, 1992, cited by the learned Counsel to the Respondents, the learned authors stated as follows: "The Courts have drawn a distinction between rights derived from contract which are classes (sic) as private law rights, and rights derived from public law. By "public law'' rights, the Courts generally mean the ability to invoke the supervisory jurisdiction of the Courts to ensure that public authorities perform their statutory duties and properly exercise their statutory (and sometimes prerogative) powers. This includes ensuring the observance of the principles developed by the Courts to control the exercise of discretionary powers. judicial review is concerned with the protection of rights derived from public law. Judicial review is not, however, available to enforce private law rights, such rights can only be enforced by way of ordinary action for damages, a declaration or on injunction. Thus, in R. v East Berkshire Area Health Authority, ex p, Walsh, the jurisdiction on a judicial review application to enforce rights derived from a control of employment. Such rights were 20

25 private law rights and the appropriate machinery for enforcing such private rights was an ordinary contractual action for wrongful dismissal," It is undoubtedly true, as submitted by the learned Counsel to the Respondents and as held by the lower Court, that where rights emanate from a mere contract of master and servant and there is a breach thereof, the appropriate remedy is an action for wrongful dismissal. Where however, rights have been declared by a Court, under the contract of employment, as in this case, but which declarations have not been acted upon, the aggrieved employee can, in appropriate cases, I hold, bring an action to enforce the performance of those rights. Giving a blanket interpretation to the principle of mandamus to exclude all disputes with respect to master and servant, as both learned Counsel and the lower Court have done, will, I hold, be negating the very foundation of the principle for which the order was created. lt was held, by the Supreme Court in the case of Associated Discount House Ltd v FCT Supra that the principal purpose of the writ is to remedy defects of justice, adjuring Courts to always bear this principal 21

26 purpose in mind. It should be used, the Court held, where there is refusal to perform a duty. Holding otherwise, would mean that a case, such as Shitta Bey v Federal Public Service Commission Supra, which was for an order of mandamus to compel the Federal Public Service Commission to issue a directive for the employee's resumption of duty in line with an earlier judgment of the Court declaring his suspension and retirement from service as illegal, null and void, would never have been granted, on the ground that it was a private matter, being between an employer and employee. Interpreting this doctrine as the lower Court and Respondents' Counsel desire, would also mean that this order should not have been allowed in the case of CBN v Amao Supra. In that case, the Respondents at the trial Court were granted declarations as to the invalidity of the form of payment of pension as being contrary to the conditions that governed their employment. An order of mandamus was granted directing the Appellant to pay to the Respondents all accrued pensions on emoluments earned. An appeal from the judgment of the Court of Appeal affirming this judgment was dismissed 22

27 by the Supreme Court. This case, also against the CBN, as is the present one, was between employees against their employer. It was yet again held by the lower Court and submitted by learned Counsel to the Respondents that unless it is in the public interest mandamus will not lie in respect of an essentially private right nor to resolve a private dispute. Liman J having held that the relationship between the parties is that of master/servant for which reinstatement will not lie, the dispute is thus a private and not a public dispute. The learned authors of Halsbury's Laws of England Third Edition, Volume 11 at Page 52 Para 107 illustrating the requirement that the duties must be public and that it will not issue for a private purpose, for the enforcement of a merely private right, referred to the cases of R v London Assurance Co (1822) 5 B & Ald 899 at 901 and R v Bank of England (1819) 2 B & Ald 620. In the former case, a mandamus to inspect churchwarden's account was refused because the Applicant's had shown no special or public ground for such inspection. It was held "His right as a parishioner is a mere private right, for which the Court 23

28 will not grant it." In the latter case, however, it was held that a mandamus will lie to compel a company to perform its statutory duties. In the English case of R v Registrar Joint Stock Companies (1888) 27 QBD 131 cited by His Lordship Idigbe JSC in the case of Shitta Bey v Federal Public Service Commission Supra, the Writ of Mandamus was issued to compel the Registrar of Joint Stock Companies to file a contract under Section 25 of the Companies Act 1857 which he had refused to file on the ground that it was insufficiently stamped and that there was another appropriate way of questioning his refusal. Also in the case of R v Thomas (1892) 1 QB 426, also cited in that case, mandamus was issued where an application for the license of a beer house was refused, without the grounds for such refusal having been stated. All these instances, it is clear, are in respect of private and not public agreements. Indeed a similar argument, as put up by the Respondents and which was the stance of the lower Court, was put to their Lordships in the case of Shitta Bey v Federal Public Service Commission Supra. ldigbe JSC set out this contention, thus: 24

29 "It was submitted to us, on behalf of the respondent, that mandamus never issues to preserve or enforce a personal or a private (as opposed to a public) right. That submission, with respect to learned counsel for the respondent, seems to me a very wrong approach to the issue. The way to look at the point in issue is this: for a mandamus to be issued. the law is that "there must be a legal right on the part of the applicant to the performance by the person or body against whom he applies. of some duty of a public and nor merely private character" (see Short: op. cit. Paragraph 228 at page The legal right may be of a personal (i.e. private or public nature. In my judgment, the touchstone on this topic is to be found in the statement of Lord Ellenborough, O., in R.v. Archbishop of Canterbury 8 East 22, which I respectfully adopt, that "there ought in all cases to be a specific legal right as well as want of a specific legal remedy, in order to found an application for a mandamus." Underlining Mine It is therefore clear that the argument that an action between an employer and its employee concerns a private right of an employee and can never be the subject 25

30 of an action of mandamus is thus too wide a statement to be tenable, I hold. I must not be misunderstood to be saying that where there is wrongful termination of employment, a Plaintiff, rather than institute an action for the wrongful termination of his employment should bring an action for mandamus. To so hold would be running counter to decided authorities on the subject. What I am saying is that where declarations are sought and granted by the Court, in an instance such as the present, yet not complied with, as was also the case in Shitta Bey v. Federal Public Service Commission Supra, this refusal, I hold, can be the subject of an action in mandamus. The important question should be whether there is a legal right of the applicant to protect by the body against whom the relief is sought. This right, I hold, may be of a private or a public nature. It was again held by the lower Court that by granting the orders sought, the Appellant is raising issues of fact which do not flow directly from the judgment, the grant of which would be contradicting the substantive and operative part of the judgment and sitting on appeal thereon. The learned 26

31 Counsel to the Respondents adds that the Respondents, having not claimed these reliefs before Liman J cannot now seek them before the lower Court. In response, the Appellants Counsel referred to the dictum in the leading Judgment of Idigbe JSC in the case of Shitta Bey v Federal Public Service Commission Supra on a similar contention. It is necessary at this stage to set out the reliefs sought in the claim before Liman J. The claim was for the following: 1. A declaration that the purported letter of dismissal dated 6th June 1994 and signed by the Assistant Director, Staff Relation Officer for and on behalf of the Director of Personnel for the defendant is wrongful null and void and of no effect in that the purported letter to the plaintiff is contrary to the conditions of service as contained in the staff manual between the parties. 2. A declaration that both the letters of suspension and query dated 7th October 1993 and 8th November 1993 and signed by Assistant Director Staff Relations Office and Assistance Director, Chairman Panel of Investigations Lagos respectively is (sic) illegal, null and void and of no effect in that the allegation of grove 27

32 misconduct leveled against the plaintiff ore allegations of crime which are presently pending at the Tribunal before the defendant s decision to dismiss the plaintiff which at amounts to an infringement of the plaintiffs right to fair hearing under Section 33 (1) of the 1979 Constitution of Nigeria as amended. 3. A declaration that the plaintiff is still an employee of the defendant. 4. The plaintiff be reinstated to his former office and is entitled to all his outstanding salaries and other emoluments as if the purported dismissal never took place. 5. An order of injunction restraining the defendant acting either by itself and privies from enforcing the terms of the purported letter of dismissal or carry into effect the terms of the said letter or acting on the alleged facts contained in the said letter in determination of the plaintiffs employment. The decision of Liman J, at Pages of the Record of Appeal, following a consideration of the evidence before him, is as follows: "In the circumstances therefore, I find that the dismissal of the plaintiff on ground of grave misconduct pending his trial before the 28