IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 11TH OCTOBER, 2018 SUIT NO. NICN/AK/41/2013
BETWEEN
LT. CDR F.S. EBOHON ………………………… CLAIMANT
AND
1. ATTORNEY GENERAL, EDO STATE
2. CIVIL SERVICE COMMISSION, EDO STATE
3. THE COMMISSIONER, MINISTRY OF ………………..DEFENDANTS
WORKS & TRANSPORT, EDO STATE
REPRESENTATION:
J.O Igbiefor for the claimant
I.O Kadir SSC, Edo State Ministry of Justice for the defendants
JUDGMENT
This is a transferred case from the High Court of Justice, Benin, Edo State. The case was transferred to this Court on 13th May, 2013.
Before going into the crux of this suit, I must first of all give a background/antecedent of this case. The claimant on the 5th of September, 1989 filed this matter before the High Court of Edo State High Court claiming the same reliefs as in this instance.
The defendants on the 13/7/90 filed their statement of defence, they also filed on the 18/12/91, a Motion pursuant to Order 24 Rules 2 and 3 of the Bendel Sate High Court (Civil Procedures) Rules 1988, Applicable to Edo State of Nigeria praying to the Court for the following orders;
“1. Setting Down for hearing and disposal the point of law raised in paragraph 9 and 10 of the statement of defence attached hereto as Exhibit C
2. Dismissing the entire action on the grounds that the plaintiff/respondent was summarily removed (prunned) from the Civil Service of the defunct Bendel State by the Military Governor of the State in exercise of the powers conferred on him by the public officers (Special Provision) Decree No 17 of 1984. Accordingly, no civil proceedings relating thereto shall lie or be instituted in any court of law”
The High Court on the 16th of April, 1992 after hearing both parties delivered its ruling and held that;
“Arising from all the above is the inescapable fact that the dismissal of the plaintiff/respondent herein is caught squarely by the provision of the Decree and, therefore, the matter of his dismissal is non-justiciable. Accordingly, this motion succeeds. Suit No B/351/89 must therefore be terminated forthwith. It is accordingly dismissed.”
The claimant/Appellant appealed against the decision of the High Court to the Court of appeal on the 30th of April, 1992 on the ground that
“Ground one
The learned trial judge erred in law when he held that; Arising from all the above is the inescapable fact that the dismissal of the plaintiff/respondent herein is caught squarely by the provision of the Decree and, therefore, the matter of his dismissal is non-justiciable whereas the writer of the letter of dismissal did not bring himself within the intendment of Section 4(2) of the same Decree
Particulars
1. Both the letter from the Second Respondent (Exhibit E) directing the 3rd respondent to dismiss the appellant and the letter of dismissal (Exhibit CA) expressly indicated that the approval and decision to dismiss the appellant was that of the 2nd Respondent;
2. The letter dated 13/4/84 from the Military Governor’s Office (Exhibit D) on which the trial judge materially relied on was not pleaded by the respondents and was thus wrongly considered;
Alternatively
Exfacie Exhibit D, the decision to dismiss or “prune the appellant was taken by the State Executive Council and merely approved by the Military Governor who did not give any consequential direction;
3. In the circumstances, there was no material or evidence or legally cognizable material or evidence to ground a finding or conclusion that the military Governor or any person authorized by him ordered the dismissal of the appellant.
4. Relief Sought from the Court of Appeal:
A reversal of the ruling herein appealed against and order directing the High Court, Benin City to hear and determine the case on its merits.”
The Court of Appeal on the 25th of March, 1994 by a Majority of two to one held that “that this Appeal fails and it be and is hereby dismissed with cost assessed at N500.00 (Five Hundred Naira against the appellant.)” the claimant further Appealed to the Supreme Court and on the 16th day of May, 1997 made the following orders;
“That this appeal succeeds only as to the preliminary issue of erroneous decision on affidavits, when those affidavit conflicts on material facts, and the Court below holding that the Court’s jurisdiction was ousted;
2. that it is ordered that the issue of two letters be tried by evidence on oath be tried before another High Court Judge other than Omoluabi J. in the High Court of Edo state….. ”
Now can this Court relitigate on this issue of jurisdiction having been litigated by the High Court of Edo State and the Court of Appeal and the apex Court of the land? It is apparent from all stated supra that the High Court of Edo state which is a Court of Co-ordinate jurisdiction with this Court has decided on the issue of jurisdiction, as well as the Court of Appeal and the Supreme Court. The general principle of law is that the law precludes a litigant from raising an issue that has already been decided between the same parties and in respect of the same subject matter, In essence the litigant is prevented from seeking redress from the Court because he failed to utilise an earlier opportunity to do so or because a competent Court of law has already considered and determined the same issue on its merits as between the same parties and/or their privies. See: Makum v. F.U.T. MINNA [2011] NWLR (1278) 190 @ 221 A-G; 227-228 D-D and 230 F-H. This is beautifully represented by the latin maxim Par in Parem imperium non habet which means that a Judge of Superior jurisdiction cannot review the decision of another judge of Coordinate jurisdiction. See the English case of R v. State [1975] 1 W.L.R 1084. Also in the Nigerian case of Mrs Esther I. Adesigbin v. Military Governor of Lagos State [2017] LPELR-41666SC; The apex Court in that case held that; “It is evident from the printed record of this appeal that the trial Court, the Lagos State High Court, being a Court of coordinate jurisdiction with the Lands Tribunal in Lagos State which earlier determined the suit of the parties herein, lacks the jurisdiction of re-litigating the same matter. It is settled that no judge can or is entitled to reverse vary or alter the order or decision by another judge of co-ordinate jurisdiction”.
However, this instance case is an exception to the general rule of law as expounded above, this is because in compliance with the order of the Supreme Court captured above in this judgment, parties on the 13th of January, 1998 filed at the High Court of Edo State, Benin Judicial Division for a retrial of this suit. This suit was however, transferred to this Court on the 13th of May, 2013, for retrial being the only Court in this clime that has exclusive jurisdiction to determine cases of this nature. It is in the light of this that this Court assumed jurisdiction to adjudicate on same.
It is the case of the claimant that he was enlisted in the Nigerian Navy as a sub-lieutenant on 1st August, 1972 and voluntarily retired on 1st June, 1980. That he joined the services of the 1st – 3rd defendants by an inter-service transfer from the Federal Ministry of Defence (Nigerian Navy) as a Principal Mechanical Engineer on 21st July, 1980. That he was posted to Ministry of Works and Transport upon his transfer to Bendel State Civil Service on salary Grade Level 12. That he was promoted to the rank of Deputy Chief Mechanical Engineer in 1983 before being appointed the General Manager and Chief Executive of Delta Boat Yard Limited, Warri with effect from 10th February, 1984. That on the 28th March, 1984, he was interdicted from duty through a letter Ref. No. CP. 5455/T/2 on the ground that he was to appear in Lagos State High Court, Ikeja on charges of forgery, uttering and stealing but refused at first to sign for the said letter. He stated that on the 11th of April, 1984, one Engineer L. Edenyabo with several other workers of the Ministry broke into his office and official residence and removed several official documents and all his personal properties including cash. He further stated that throughout the period that he was on interdiction, the defendants caused his salary to be stopped and contrary to the Civil Service Rules, half of his salary was not paid to him. He pleaded that despite his request to be reinstated based on the decision of the Court of Appeal, the defendants refused to do so as he received a letter dated 1st June, 1989 with Ref. No. PC.7950T/57 to that effect that he was being pruned from service in 1984 while he was on interdiction.
Based on the foregoing, the claimant claimed against the defendants jointly and severally as follows:
1. A Declaration that I am entitled to be reinstated to my position as a Deputy Chief Mechanical Engineer in the Edo State Civil Service.
2. A Declaration that I am entitled to be paid my salary and allowances from the 1st of April, 1984 and also to all the promotions and increments in emoluments that I would have been entitled to base on salary grade level 16 being my salary grade level before being purportedly pruned from service.
3. An Order that my properties and those of my family, including money all valued at more than £11.15m forcibly removed by the 1st – 3rd defendants or their agents from my office and official residence at No. 4, Jeffia Crescent, Warri on 11/04/84 be returned to me; or in the alternative, that the said sum of £11.15m Pounds Sterling be paid to me as special damages by the 1st – 3rd defendants.
4. A Declaration that my purported “pruning from the service” as contained in letter of pruning S./502/T/230 of 25/4/84 issued by the 3rd defendant is unlawful, null and void.
5. General Damages of N200,000,000.00.
The Claimant during trial testified for himself as CW, he adopted his statement on oath as his evidence in this case, he sought to tender some documents which were admitted in evidence by the Court and marked Exhibits FS-FS16.
The defendants by an amended statement of defence filed on 24th July, 2017 pleaded that the claimant was communicated about his being pruned from the service and that immediately he was interdicted; he personally handed over government properties in his possession to one Engineer L. Edojabor. It is the contention of the defendants that this court lacks jurisdiction to hear this matter as among other things, this suit was struck out at the Benin High Court and subsequently the Supreme Court ordered that the conflict in the affidavits accompanying the motion and the counter affidavit of the defendants should be resolved at the trial Court before the main matter could be heard and such have not be resolved. It is again the averment of the defendants that the claimant first filed this suit vide filing of his Writ of Summons on 5th September, 1989 and first filed his Statement of claim on 5th December, 1989 and that the cause of action in this suit arose in 1984, thereby making this suit statute barred. In denial of claimant’s pleading, defendants pleaded that the claimant voluntarily signed a document which contain the information of items being handed over to the company after his moveable properties were moved out in his presence. Whereof the defendants averred that the claimant’s action is grossly in want of merit and same should be dismissed with punitive cost.
The defendants during trial testified through one Ogbembe Boniface, he adopted his statement on oath dated as his evidence and sought to tender some documents which were admitted in evidence by the Court and marked Exhibit BO.
The defendants’ final written address was filed on the 29th March, 2018 wherein they raised two issues for the determination of this suit, viz:
1. Whether the claimant has successfully proved his claims and reliefs in this suit on the preponderance of evidence.
2. Whether any right that might accrue in this suit was not stale, ineffective and empty at the time this action was first initiated in 1989.
As regards issue 1, the defendants’ counsel submitted that the claimant failed to prove any claim, fact or pleading asserted in this suit on preponderance of evidence and that most of his claims is self-contradictory, which is a counter position to the legal requirement that he who asserts must prove (Section 134 of the Evidence Act, 2011), he referred to paragraphs 18, 34, 35(H) of the Further Amended Statement of Claim. Counsel also submitted that the pleaded fact of the claimant claiming his personal effects which worth £11.15m being carted away is unsupported by any witness before this Court as the testimonies rendered by Adam Osayande on 16/11/2006 (Exhibit FS 16) is of hearsay and in which the law enjoins this Court to discountenance and treat as inadmissible and inconsequential. He relied on Section 38 of Evidence Act, 2011 and the case of Zaki v. Magayaki [2002] FWLR (Pt. 135) 798 Ratio 9. He further submitted that Exhibit FS 16 is of material contradiction to Exhibit FS 13, he posited that the law also enjoins this Court to treat with suspicion, disbelief and then reject it’s the evidence as being unreliable. Again the cases of Akanmu v. Adigun [1993] 7 NWLR (PT. 304) 218 at 235 and Ogala v. The State [1991] 2 NWLR (Pt. 175) 509 were relied upon. It is the contention of counsel that the piece of Exhibit FS 12 is material before this Court in the determination of whether or not the claimant has any personal effect in the official residence on 11/4/1984 but that he has arbitrarily mutilated, altered and conscripted the fiscal value of the personal effects being claimed and that this action renders the said Exhibit and the entire papers of this suit worthy of disbelief of this Court. See Lawson v. Afani Construction Co. Ltd [2002] 2 NWLR (Pt. 752) Ratio 22. In furtherance of their argument, the defendant submitted that the claimant failed to adduce evidence in support of the facts that Exhibits FS 14 and FS 15 are afterthought as he pleaded in his Further Amended Statement of Claim filed on 2/3/2018. He posited that the law mandates this Court to resolve this suit against the claimant and he cited in support the cases of Ajao v. Ademola [2005] NWLR (Pt. 913) 636 at 663 at para E, Ratio 7 and Nwaga v. Registered Trustees Recreation Club (2004) FWLR (Pt. 190) 1360 Rations 2& 6.
Counsel submitted that the claim of special damage should be rejected as it is deficient or unsatisfactorily prayed by the claimant. Reference was made to the following cases: Ganiyu Badmus & Anor v. A.O. Abegunde [1999] 71 L.R.C.N Page 2912 at page 2925 Ratio 1 SC; Osuji v. Isiocha [1989] 3 NWLR (Pt. 111) 623 at 633 SC; Dumez Nigeria Ltd v. Ogbali [1972] 1 ALL NLR (Pt. 1) 241. He submitted that the claimant failed to place sufficient facts before this Court that he ever own anything of valuable consideration to the tune of £11.15m in the official residence he occupied on 11/4/1984 or having any other personal effects other than the ones he handed over in Exhibit FS 13 as he stayed in the apartment for a period less than 2 months, which is difficult for him to move all the said personal effects of £11.15m from Benin City to Warri, and that his salary was N841.00 as at the time he worked with the defendants in 1980. Counsel urged the Court to take judicial notice of the fact that a British pound equivalent in Nigeria legal tender in 1984 was N2.00. Counsel went on to submit that all the legitimate money accrued or at the disposal of the claimant from July, 1980 to March, 1984 (44 months) in British Pounds value was £18,502.00; less than £20,000, he therefore submitted that the claimant’s claim for £11.15m is at large and that whenever any evidence, is at large before this Court, the law bids the Court not to reckon with such evidence in its adjudication as it can only act on the basis of the evidence placed before it. Reliance was placed on the authority of N.B.C.I v. ALFIJIR Mining Nig. Ltd [1993] 4 NWLR (Pt. 287) 346 Ration 7. Counsel then fervently urged the court to find in favour of this issue as canvassed herein and resolve same in favour of the defendants.
On issue 2, it is the argument of the defendants’ counsel that the cause of action in this suit arose in 1984 when Exhibit FS7 was issued with its attached documents which compelled the pruning out of staff in the service of Bendel State Civil Service among whom was the claimant in Serial No. 548 of the said document. It is submitted that related action against this issuance was first filed in the Bendel State High Court Registry on 5/9/1989 (Exhibit BO), the filing which contravenes the provision of Section 2 of the Public Officers (Protection) Law, Cap 137, Laws of Bendel State, 1976 applicable in Edo State and it is argued that Exhibit FS8 does not cure this suit from being statute barred as same does not change the day that the cause of action in this suit occurred or establish any default on the part of the defendants. The Court was referred to the cases of Ekeogu v. Aliri (1991) 2 LRCN page 613 at page 630; Rahamaniya United Nig. Ltd v. Ministry of the Federal Capital Territory & Ors (2009) Vol. 43 WRN page 124 at page 132 Ration 10. As to when time begin to run to determine when an action becomes statute barred, the case of Aremo II v. Adekanye & Ors (2004) 8 S.C.M. page 9 at 14 Ratio 6 was cited. It is the counsel’s further submission that 25/4/1984 was the period of time the cause of action in this suit arose and that the claimant cannot claim ignorant of this fact, the court is therefore urged to find in this regard and uphold that the claimant’s original/first suit filed to redress this cause of action on 5/9/1989 (first Writ of Summons) and 5/12/1989 (first Statement of Claim) in Exhibit BO was filed thereafter 3 months next to the cause of action; about 5 years 5 months or 5 years 8 months and contrary to the provision of Section 2 of the Public Officers (Protection) Law, Cap 137, Law of Bendel State of Nigeria, 1976 as applicable to Edo State of Nigeria as reference was further made to Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) page 1 at page 31, paras G-H.
Hence, counsel submitted that the claimant’s action is statute barred and same was filed at the time when any right that might accrue to him in the action was stale, empty and ineffective and urged the court to so hold. Eboigbe v. NNPC (1994) 18A LRCN page 54 at page 64 and Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637.
Conclusively, the defendants’ counsel, in line with the submissions canvassed in this address, urged the court to find in favour of the two issues canvassed and ultimately dismiss this suit in its entirety for want of proof, merit and competence.
In the final written address of the claimant dated 28th May, 2018, a sole issue was formulated for the determination of this suit, which is:
Whether the claimant has proved his case on the balance of probability to warrant this honourable court to grant his reliefs as endorsed in paragraph 40 of the further amended statement of claim dated 02/03/2018
The claimant’s counsel sought the Court’s indulgence to argue on the issue of the conflict of affidavit evidence as ordered by Supreme Court and this Court before arguing on the sole issue for determination. In this regard, counsel referred to the Supreme Court’s judgment in the appeal against the dismissal of this case on the 16th May, 1997, reported in (1997) 5 NWLR (Pt. 505) 298 at 307, paras D-H; at page 308, paras A-F. It is stated that this Court further directed that the Order of the Supreme Court in respect to resolution of the conflicts in the affidavits of parties be taken together with the main case, and consequently, the claimant amended the statement of claim to bring in this issue as directed by this court and went further to tender the letters in evidence which were marked as Exhibits FS 7 (letter of 25/4/84), FS 14 (letter 13/04/84) and FS 15 (letter 19/04/84). Counsel then submitted that Decree No. 17 of 1984 was promulgated in July, 1984 and there was no way Exhibit FS 7 allegedly written on 25/4/84 could have envisage a decree that was yet at that time, to be promulgated and that the writer of the said Exhibit who signed “for Permanent Secretary, Ministry of Works and Transport, Benin City”, is unknown as the name of the writer was not endorsed thereto as to constitute “the Military Governor or any other person authorized by him” as to fall within the appropriate authority to terminate or dismiss the claimant. The cases of Adi-Byewi Salihu & Anor v. Shiddi Usman Danjuma & Ors (2015) LPELR-40621 (CA) (Pp. 59 – 60, paras F-D) and Gbadamosi & Anor v. Biala & Ors (2014) LPELR – 24389 (CA) (P. 20, paras A-D) were referred to. Counsel urged the court to hold that the said documents (Exhibits FS 7, FS 14 & FS 15) that were obviously made to authenticate it are bad in law and amount to an afterthought.
On the sole issue, claimant’s counsel submitted that the law is settled that in an action for declaration of right to anything, the claimant must succeed on the strength of his case, not on the weakness of the defence, though where the case of the defence supports that of the claimant, the claimant can rely on same to prove his case. In respect of burden of proof of declaratory rights, counsel relied on the guiding principle in the case of Vincent Bello v. Magnus Eweka (1981) 1 SC 101 and Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368 (SC) (P. 17, Paras A-D). It is submitted that the claimant, in proof of his case, testified and tendered a Certified True Copy of the evidence of his witness, one Mr. Adams Osayande, in the previous proceedings at the Edo State High Court of Justice and also tendered other documents in evidence which were collectively marked as Exhibits FS to FS 16. Counsel equally made reference to paragraphs 6 – 31 of the claimant’s written statement on oath and citing the case of Jiaza v. Bamgbose & Anor (1999) LPELR-1611 (SC) (P. 16, Paras D-F), submitted that the claimant’s evidence as stated above were never contradicted or shaking under cross examination and went on to submit that Exhibit FS 7 which in itself did not meet the minimum requirement of law which was issued during the pendency of the claimant’s interdiction is a violation of the rule of law and urged the court to so hold. Counsel referred to the evidence of the claimant in paragraphs 18, 19, 20 & 35 of his further amended statement of claim and Exhibit FS 16, which is the testimony of one Mr. Adams Osayande (claimant’s witness) and then submitted that the claimant has met the requirements required for the proof of special damages and consequently urged this court to so hold and grant his relief in respect of his special damages. The following authorities were relied upon: Okunzua v. Amosu & Anor (1992) LPELR-2531 (SC) (P. 24, Paras C-D); Ngilari v. Mothercat Limited (1999) LPELR-1988 (SC) (P. 28, Paras E-F) and Adim Nigerian Bottling Company Plc & Anor (2010) LPELR-181 (SC) (Pp. 13-14, Paras G-A).
In furtherance of his argument, claimant’s counsel contended that there is no fact pleaded neither was evidence led on the number of bedrooms in the official apartment occupied by the claimant neither was there any fact pleaded or put in evidence on when the claimant moved into his official quarters. Relying on the cases of Olatinwo v. State (2013) LPELR-19979 (SC) (P. 26, Para. B) and Lateef Adegbite & Anor v. Aminu Amosu (2016) LPELR-40655 (SC) (P. 10, Para B), urged the court to disregard the defendants’ counsel argument on this fact not pleaded.
On the defendants’ second issue for determination, claimant’s counsel submitted that for most actions, periods of limitation are prescribed by statute with the consequence that an action begin after the period of limitation has expired is not maintainable. It is posited further that to determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the claimant a cause of action and comparing that date with the date on which the writ of summons was filed, if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 – 21; Abiola v. Olawoye [2006] 13 NWLR (Pt. 996) 1 at 22, paras B-D and Oyebanji v. Lawanson [2004] 13 NWLR (Pt. 889) 62 at 74, Paras E-G. In the instant case, counsel submitted that writ of summons was issued on 05/09/89, paragraphs 21 – 25 of the statement of claim dated 05/12/89 which have the same facts with paragraphs 26 – 30 of the further amended statement of claim dated 02/03/2018 and filed same date and the claimant’s evidence particularly paragraphs 26 – 31 of his witness statement on oath shows that on 13/12/88, the defendants were informed by a letter through claimant’s Solicitors Adeniran & Adeniran of the decision of the Court of Appeal and requested that he (claimant) be re-instated; that having waited for sometimes to be re-instated, without any response, claimant wrote to the defendants on 21st April, 1989 and also sought interview with the Chairman of the then Bendel State Civil Service Commission and was informed that his matter was receiving attention but later received letter of 1st June, 1989 from the defendants of their refusal to reinstate him because he was pruned from service and that he was informed on the 21st September, 1989 by the 3rd defendant that he had been pruned from the service in 1984, while he was on interdiction. Counsel went on to submit that time begins to run for one purpose of limitation law when there is in existence a person who can sue and another who can be sued and that when facts happened which are material to be proved to entitle the claimant to succeed. Reference was made to the case of Williams v. Williams [2008] 10 NWLR (Pt. 1095) 364 at 383, paras C-E. It is consequently submitted that the cause of action in this case accrued on 21/09/89 when he was formally informed of his pruning from the service and that the period between the 21st of September, 1989 and the 5th of September, 1989 when the writ of summons was filed is a period not exceeding the prescribed time of three (3) months stipulated by the Limitation Law within which the claimant should seek redress in the court of law.
Premised on the above, counsel urged the Court to hold that the claimant has discharged the burden of proof placed on him by law, consequently, he is entitled to the reliefs sought. The court is therefore urged to grant the reliefs as claimed by the claimant.
The defendants replied on point of law to the claimant’s final written address and submitted that the claimant fails woefully in proving his case on balance of probability in this suit based on the following legal premises: that Exhibit FS7 was written pursuant to the order of the then Military Governor in Exhibit FS 14 and was addressed to the 2nd defendant, that Exhibit FS 15 was written by the 2nd defendant to the 3rd defendant’s Permanent Secretary for due execution of the order of the Governor in Exhibit FS 14 and further submitted that Exhibit FS 7 is still intact in purpose and substance, notwithstanding the fact that it may be seen to suffer some defects such as the mere irregularities of the absence of the name of the executing officer. They urged the Court to see this defect as mere irregularity and as a defect in form not affecting the substance of the order of the Military Governor of Bendel State which was spelt out in a letter dated Exhibits FS 14 and FS 15. Defendants argued further that the claimant neglected to submit the obvious before this court when he stated in paragraph 5.14 of his final written address that “the claimant’s evidence as stated above (Paragraphs 4.00 – 5.13) were never contradicted or shaken under cross-examination”, because they (defendants) were able to evince evidence from the claimant in their cross-examination which points to that he doctored his claim of £11.15m worth of personal effects in Exhibit FS 12 as well as the fact that he rather tarried too late in instituting the original action of this suit in 1989.
It is the consistent submission of the defendants that the claimant has not met any requisite standard of proof in his attempt to prove his reliefs as contained in paragraph 40 of his further amended statement of facts in that a period of 35 years or 60 years whichever comes first, from 1980 when the claimant pleads to have joined the Bendel/Edo State Civil Service has long lapsed by effusion of time in 2015 and that this exists against the relief of reinstatement. Also, that the relief B is statute barred because the original action to redress this wrong/cause of action was filed thereafter three (3) months next to the cause of action on 5/9/1989 and that relief C is void of substance in the face of the manipulations and alterations foisted in proof of the acclaimed sum and that the bogus claim was not filed in the original suit process of Exhibit BO on 5/9/89 and 5/12/89. The court is enjoined by law to only consider the facts placed before it by the parties in respect of this issue and hereby urged to discountenance the claimant’s claim in regard and refuse to grant this relief as prayed. The case of Okpanam v. S.G.E Nig Ltd [1998] 59 LRCN page 3901 at page 3915 H-I was commended to the court. Counsel also contended that relief D is statute barred as the original action was initiated more than five (5) years next to the cause of action, equally, it is submitted that relief E lacks substance, unproven and is also statute barred. Reliance was placed on Emiantor v. Nigeria Army [1999] 72 LRCN page 3132 at page 3133 E-F; Ekeogu v. Aliri [1991] 2 LRCN page 613 and Egbe v. Adefarasin (2002) 14 WRN page 57. Defendants’ counsel urged the Court to find that the cause of this action arose on 25/4/1984 when Exhibit FS 7 was made. On the whole, counsel urged the court to find in favour of the defendants and dismiss this suit in its entirety for want of proof, merit and competence.
Having carefully gone through the processes filed by parties in this suit, the written submission and arguments canvassed by counsel on both side of the divide in support of their respective case before this Court, also bearing in mind the direction of the apex Court stated earlier in this judgment, it is my considered view that the issue that requires determination in this suit is;
Whether after the testimonies of parties in this suit vide their affidavit evidence, this suit is competent as constituted?
It is noteworthy that the letters referred to by parties are the letters dated 13th of April, 1984 Exhibit FS14, emanating from the Military Governor’s office directing the 2nd Respondent to implement its decision on the list of officers in the Civil Service who have been ear-marked for dismissal or retirement or whose appointments are to be terminated in connection with the then pruning of the Bendel State Civil Service being undertaken by the then Military Administration and the letter dated 25th of April, 1984 Exhibit FS7 from the 3rd Respondent intimating the claimant that he has been dismissed from the Civil Service. The conflicts therein pertains to paragraphs 4 and 5 of the claimant’s counter affidavit which I reproduce for ease of reference thus;
“4. That paragraph 7 of the supporting affidavit is misleading and therefore not true. That I was informed of my dismissal by letter Ref. S. 502/T/230 dated 25th of April, 1984 attached herewith as Exhibit “CA”.
5. That the Applicant’s Exhibit ‘D’ i.e letter CSM.61/Vol.VI.286 of 13th April, 1984 is an afterthought and a frame-up to deceive this Court.”
And paragraphs 7 and 8 of the defendant’s affidavit in support of the motion’
“7. That by a letter reference No: CSM.61/Vol.VI.286 date 13th April, 1984, the 2nd defendant/applicant was informed by the Secretary to the Military Government and Head of Service that the Military Governor had approved the dismissal, retirement or termination of the appointment of a list of Civil servants and that the 2nd defendant/applicant should implement same immediately.
8. That following the directive in Exhibit D the 2nd defendant/applicant by a letter reference No.S275/Vol.III/10 of 19th of April, 1984, took prompt action and communicated same to the Permanent Secretary (now Director General) of the 3rd defendant/applicant. To this letter was attached the list of Civil Servant Pruned in the 3rd defendant/applicant’s establishment.”
The law is long settled that when affidavit evidence placed before the Court by both parties to an action conflict on material facts; oral evidence must be called to resolve the conflict as directed by the apex court. See Imoniyame Holding Ltd & Anor v. Soneb Enterprises Ltd & ors [2010] LPELR 1504 SC. In the case of Simon Ezechukwu & Anor v. I.O.C Onwuka [2016] LPELR 26055 (SC) the Court held that;
Now, counsel on both sides are one, and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court, the Court must resolve the conflict by calling oral evidence either from the deponents or other witnesses. The Court, in the face of such a persisting conflict, is not allowed to prefer one deposition to the other. Learned respondent counsel cannot be faulted in his further submission that the need to call oral evidence arises only where the conflict in the affidavits are significant and material. The need to call oral evidence, on authorities, is obviated where the conflict is narrow in which case the Court is in a position to overlook same.” See also LSDPC V. Adold Stamm Int’l (Nig) ltd [2005] LPELR 1746 SC; [2005] 2 NWLR (Pt. 910) 603
This Court in a bid to resolve this conflict on the 13th of March, 2017 ordered Parties to ensure the attendance of their witnesses in Court. On the 2nd of June, 2017 learned counsel to the defendants I.O Kadiri Esq informed the Court that “the deponent in the said affidavit is one Igbinedion Okoro a Staff of the Ministry of Establishment and Training, who is now retired and late”, so he sought and obtained leave to file the same affidavit but by another deponent who is also a staff of the Ministry of Transport. The Court also ordered parties to incorporate their averments in the statement of facts and the witness statement on Oath clarifying the conflict in the extant affidavits. In compliance with the order of Court made on the 12th December, 2017, both parties incorporated on the face of their amended pleadings facts clarifying the affidavit evidence as ordered by the Supreme Court. It is regarding this that I will consider the depositions of the parties in their respective amended pleadings.
It is the defendants’ contention that this suit is statute barred, to them the cause action arose in April 1984 when he was allegedly dismissed from service and that he filed his action on 5th of September, 1989 which is more than five (5) years after his dismissal and contrary to the provisions of the Public Officers Protection Act. The claimant on the other hand, posited that sequel to his discharged by the Court of Appeal on the 5th of December, 1988 of his criminal charges, he formally informed the defendants through his solicitors on the 13th of December, 1988 of the Court of Appeal’s decision and requested to be reinstated. He continued that having waited for some time to be re-instated, without any response, he wrote to the defendants on 21st April, 1989 and also sought the audience of the Chairman of the then Bendel State Civil Service Commission and was informed that his matter was receiving attention but later received a letter dated 1st June, 1989 Exhibit FS6 from the Civil Service Commission that the Commission is unable to review his case as he was pruned from service under Decree No. 17 of 1984 and stated that the only authority competent to review his case is the Military Governor’s office. On the 21st September, 1989 he was informed by the 3rd defendant that the reason for their refusal to reinstate him is that, he had been pruned from the service in 1984, while he was on interdiction.
It is an age long settled principle of Law that the question of Jurisdiction is the nervous system that propels adjudication of a Court on a case, it goes to the root, fibre, foundation and a threshold issue of a case and thus must first be considered as it forms the basis upon which a Court can entertain a suit. In the case of Hon. Ehioze Egharevba v. Hon Crosby Osadolor Eribo & ors [2010] 9 NWLR (Pt.1199) 411 SC the Court held that;
Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication.
Jurisdiction breaths or sniffs life out of a suit. It is so because jurisdiction is pivotal to a suit and touches on the competence of Court. When it is raised at any stage of trial, the Court will have to determine first whether the subject matter is within its adjudicatory power, if there is a feature in the case which prevents it from exercising its jurisdiction and whether the case is initiated by due process of law and all condition precedent to the exercise of its jurisdiction has been fulfilled. See the locus clasicus case of Madukolu v. Nkemdilim [1962] 2 All NLR (Pt. 11) 5. Once a Court finds that its bereft of the competence to adjudicate on the case, it should hands off, as the law is that no matter how well conducted a case, it becomes a nullity and unavailing to the parties. See N.N.P.C v. Orhiowasele [2013] 13 NWLR (PT.1371) PT 1371, P.211 @ 224 SC; Egunjobi v. F.R.N [2012] LPELR 15537. It is trite law that to determine whether or not a suit is filed within the period stipulated, the first document to consider are the writ of summons and the Statement of claim [in this Court known as the general form of complaint and the statement of facts] which will show the date of accrual of the cause of action and the date the suit was filed and compare it with the date of filing the suit. This will show whether or not the suit was filed outside the period allowed by the law.
I have gone through both the complaint and statement of claim of the claimant as the law expects a Court to do in determining if indeed it has jurisdiction, however, in deciding when the cause of action arose, a germane question that must be answered is when did the cause of action arise, is it in 1984 when Exhibit F14 the letter dated 13th of April, 1984 was allegedly written from the Military Governor’s office to the Permanent Secretary Ministry of Works or Exhibit FS8 the letter dated 21st of September, 1989 as argued by the claimant. A cause of action as defined in plethora of cases to mean the fact or community of facts which gives a person a right to judicial redress or relief against another. It also means a situation or state of facts which would entitle a party to sustain an action and seek judicial remedy. See Yare v. National Salaries Wages & Income Comm [2013] LPELR, 20520. It is appropriate to state that it is claimant averment at paragraph 13 of his amended statement of claim that by Exhibit FS3, a letter dated the 28th of March, 1984 he was interdicted from duty on the grounds that he was to appear before the Lagos State High Court, Ikeja on charges of Forgery, Uttering and Stealing and by paragraph 22 pleaded that he was convicted on one of the six count charges against him. It is appropriate to state that during the period of 1984 till 1988 the claimant was serving a term of imprisonment and thus confined and unable to seek redress in Court. The defendants on the other hand averred by paragraph 13 of their Statement of Defence that;
“a. that by a letter reference No. C.S.M. 61/Vol.VI/286 dated 13th of April, 1984 the 2nd defendant/Applicant was informed by the Secretary to the Military Government and Head of Service that the Military Governor had approved the dismissal, retirement or termination of the appointment of a list of Civil Servants and that the 2nd Defendant/Applicant should implement same immediately…
b. that following the directive in Exhibit “D” the 2nd defendant/Applicant, by a letter reference No. S. 275/Vol. 111/10 of 19th of April, 1984, took prompt action and communicated same to the Permanent Secretary (now Director General) of the 3rd Defendant/Applicant to this letter was attached the list of Civil Servant pruned in the 3rd defendant/Applicant establishment….
c. that in Exhibit “EI”, the name of the Plaintiff/claimant/Respondent appeared at No. 548.
d. that in compliance therewith the 3rd Defendant/Applicant communicated to the plaintiff/respondent his dismissal from Civil service of the defunct Bendel State.”
The defendants on the 25th of April, 1984 Exhibit FS7 wrote to the claimant informing him of his dismissal. Now a relevant question to answer here is, what is the effect of Exhibit FS7? A careful examination of the document discloses that the letter was written by the Ministry of Works and Transport (Establishment Division) Benin City, Bendel State of Nigeria to the claimant by the Permanent Secretary, Ministry of Works and Transport, Benin City. However the said letter bears no author as in the name of a natural person; it does not indicate the actual person who signed the letter. The document merely carries just a signature (for the Permanent Secretary, Ministry of Works and Transport, Benin City). It is obvious that this letter was not signed by the Permanent Secretary, Ministry of Works and Transport, as it was done on his behalf by an unnamed person, i.e. the name of the officer who did so on his behalf was not stated to authenticate the document. Its authenticity though admitted by the Court is lacking in probative value and it is trite that in the hierarchy of our adjectival law, probative value comes after admissibility. Thus a document may be admitted by the Court without attaching probative value. This can be so whilst writing its judgment, the Court may discover that it ought not to have admitted such document. The Court is required to discountenance same in reaching a just decision. See the case of Omega Bank (Nig) PLC v. O.B.C Ltd [2005] 8 NWLR (Pt 928) 547. It is upon this basis I discountenance and expunge Exhibit FS7 from the court’s record.
The next question to ask is when communication is deemed to be effected is it at the time the letter was written in 1984 or when it was being received in 1989. The law is well settled that a notice of termination/resignation takes effect not from the date of the letter or from the date of any purported acceptance, but from the date on which the letter was received by the employee/employer. See. WAEC v. Oshionebo [2015] 55 NLLR (PT187) 165 CA. In an English case of Horwood V. Lincoinshire County Council [2012] UKEAT,0462/11; it was held that where an employee’s contract of employment is terminated without notice as it is in this case, the effective date of termination is the day that notice is communicated. DW under cross-examination posited that in 1984 when the letter Exhibit FS7 was allegedly written, it was not brought to the notice of the claimant until 1989 because he was nowhere to be found. The claimant also via paragraph 28 of his Amended Statement of facts averred that;
“The claimant was however surprised to receive a letter No. PC 7950T/57 of 1st of June, 1989 form [sic] the defendants informing him of the refusal of the defendants to reinstate him based on the ground that he was being pruned from service”
Applying the position of the law to this present case, it thus means that the letter was effectively communicated to the claimant on the 1st June, 1989, signed by the Chairman civil service commission, intimating him that he has been pruned from service, was received by him and not exhibit FS7 of 25th April, 1984. The letter dated 1st June, 1989 exhibit FS6, in the eye of the law was the date claimant’s employment was determined. Assuming without conceding that the effective date of communication is the 21st of September, 1989, the pertinent question to ask is on which of the letters did the claimant act on when he filed this suit on the 5th of September, 1989, certainly not the letter of 21st of September, 1989, which was written by Ministry of Works informing him of the disapproval of his request for reinstatement by the Civil Service Commission. This leaves us to believe that the claimant acted on the letter of 1st of June, 1989 in filing his suit in Court, which effectively dismissed him from service.
Having held supra that communication of the claimant’s dismissal was effective on the 1st of June, 1989, is the claimant’s case stale or differently put, statute barred? The answer is in the affirmative, because given that the cause of action accrued on 1st June, 1989 and this suit was filed on the 5th of September, 1989, a comparism of the two dates will be 3 months and five (5) days from the date the cause of action arose. It is therefore contrary to the provision of Section 2(a) of the Public Officers Protection Act, Cap 14, LFN 2007, which provides that any action against a Public Officer must be instituted three months preceding the date of the accrual of the cause of action. It is plain on record and as stated above that the claimant took out this suit against the defendants after the period required by law. His right of action is therefore extinguished by law. In other words, even if he has a legal right to ventilate, that right has been extinguished by law, specifically Section 2(a) of Public Officers protection Act applicable in the then Bendel State of Nigeria. This was succinctly put by Lord Atkinson in Board of Trade v. Layser Irvine & Co. Ltd [1927] A.C. 610 at 628 stated thus-
The whole purpose of limitation Act is to apply to person who has good cause of action which they could if so dispose, enforced and to deprive them of power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to enforce.
See also the recent Court of Appeal decision of Adetula v. Akinyosoye & Ors [2017] LPELR-42130 CA where the Court held that “the raison d’etre for limitation law are to ginger up aggrieved persons to be vigilante, to discourage cruel actions and to peruse the evidence by which a defendant will defend the action.”
It is in the light of all stated above and the circumstances of this suit, that I find that this suit is incompetent for being statute barred. Consequently, this Court has no jurisdiction to entertain same, accordingly, the Claimant’s case is dismissed.
I make no order as to Costs
Judgment is accordingly entered.
Hon. Justice Oyebiola O. Oyewumi
Presiding Judge
