ALHAJI BELLO NASIR CHARANCHI v. CIVIL SERVICE COMMISSION, KANO STATE & ORS
In The Court of Appeal of Nigeria
On Thursday, the 12th day of December, 2002
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
ALHAJI BELLO NASIR CHARANCHI – Appellant(s)
- CIVIL SERVICE COMMISSION, KANO STATE
2. COMMISSIONER FOR LANDS AND REGIONAL PLANNING KANO STATE
3. ATTORNEY GENERAL KANO STATE – Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): The Appellant as Plaintiff sued the Respondents jointly and severally at the High Court of Justice Kano State sitting at Kano claiming the following reliefs:
“1. A Declaration that the purported dismissal of the Plaintiff (i.e. the Appellant) is unconstitutional, null and void.
2. An Order of immediate reinstatement to his due position in the employ of the Defendants with arrears of his unpaid salaries.
And in the alternative, the Plaintiff claims N500,000.00 being Special and General Damages for, wrongful dismissal.”
The facts leading to the Appellant’s Suit are as follows:
The Appellant was employed by the 1st Respondent into the service of Kano State Government with effect from 19/7/77. At the time of his employment he was a holder of a Diploma in Estate Management. When the Appellant was employed, he was posted to serve under the 2nd Respondent on a salary scale of Grade level (G. L) 06. He served under the said Respondent for a period of Eighteen (18) years and Seven months during which period, he attended various in-service courses which earned him promotions until he attained the post of Chief Estate Assistant on salary of G.L. 13. Throughout his employment and unto his attainment of that post, the Appellant was never queried or warned and no disciplinary action was ever taken against him in the course of his employment. However, on 17/8/95, the Appellant was issued with a query and asked to reply within 24 hours to which he promptly responded. He was subsequently placed on interdiction on 25/8/95 and a committee was set up to investigate the allegation against him. At the end of the investigation, the Appellant was dismissed vide a letter dated 30/1/96. The dismissal was backdated to take effect from 1/6/94. Being dissatisfied with the manner of his dismissal from service, the Appellant instituted the present action against the Respondent for wrongful dismissal. His Writ of Summons and the endorsed Statement of Claim were both filed on 31/1/97.
After the entry of appearances and the parties filing and exchange of Pleadings, the trial commenced. It was in the course of trial that a Motion (or and application) was brought by or on behalf of the Respondents for the suit to be dismissed for being statute-barred by the Limitation Law to wit Public Officer (Protection) Law (Cap 121) Laws of Kano State 1991.
The Appellant filed a Counter-Affidavit to the said Motion which was heard by the learned trial Judge. Ruling on the Motion on Preliminary Objection was deferred and reserved until the final judgment at the end the trial. In his judgment, the learned trial Judge found and held that the Appellant’s dismissal was wrongful but his action was statute-barred.
The Appellant being dissatisfied with the judgment of the trial court has now filed his Appeal against it in this Court.
In his Notice of Appeal, dated the 23rd day of November, 2002 and filed on the next date, the Appellant filed three (3) Grounds of Appeal. Also in his Amended Brief of Argument filed with the leave of this Court on 14/11/01, which was adopted at the hearing of this Appeal on 3/10/02, the Appellant formulated the following three (3) issues for determination in the Appeal:
“3.0 ISSUES FOR DETERMINATION
3.1 Whether it was correct for the trial Judge in arriving at his Judgment to consider issues which were outside the Pleadings filed by the parties. Ground One of the Appeals.
3.2 Based on Exhibit 16, when is the effective date of the dismissal of the Appellant from the service of the Respondents. Ground two of the Appeal.
3.3 Whether failure by the trial Court to consider the case of the Appellant in his Reply to the Preliminary Objection raised by the Respondents amounted to breach of the rules of fair hearing. Ground three of the Appeal.”
At the hearing of this Appeal the Respondents and their counsel were absent. On the application of the Appellants counsel who pointed out that they were duly served with Hearing Notice and had filed their Respondents’ Brief, this Court heard only the Appellant’s counsel and deemed the Respondents’ Brief as adopted without oral argument in accordance with order 6 Rule 9 (5) of the Court of Appeal Rules, 2002. In the said Respondents’ Brief which was filed on 28/3/02 the Appellants three Issues are rejected and instead only one issue is identified as calling for determination in the Appeal. The lone issue is simply put in the said Respondents’ Brief as “whether the action of the Plaintiff is statute barred.” For the purpose of this Judgment, I will adopt the Appellant’s three Issues as reproduced above. However before dealing with those issues, I will pause to consider the preliminary point or objection raised in the Respondents’ Brief.
As stated above the preliminary point is merely and tacitly raised in the Respondents’ Brief (see page 4 paragraph 3.01 thereof). Although this is an improper way of raising a Preliminary Objection in accordance with Order 3 Rule 15 (1) of the Court of Appeal Rules 2002 (No formal Notice of Objection was filed) I will still consider it because the Objection has substance. Moreover the Appellant has notice of it and has responded to it and it affects the Notice of Appeal. I also found the point raised (i.e. absence of the Appellant’s Notice of Appeal from the Record) to be true. The point raised by the Respondent is that there is no where in the Record of Proceedings where the Appellant’s Notice of Appeal can or will be found or seen. I found this assertion to be true and the only Notice of Appeal at page 188 – 190 is that of the Respondents (may be when they wanted to Cross Appeal) whose Application for leave and extension of time to file a Cross Appeal was struck out by this Court on 7/3/02. However the Appellant’s counsel has responded on this absence of the Notice of Appeal by filing a Reply to Notice of Preliminary Objection.” In this Reply, the Appellant tendered the revenue receipt No. 0000319446 of 24/11/2000 issued to him by the registry of the lower Court when he filed the Notice of Appeal. He also tendered the letter written to the Registry of this Court by the lower Court’s registry admitting its mistake in not attaching the Appellant’s Notice of Appeal when forwarding the Record of Proceedings to this Court. The Appellant’s Notice of Appeal was therefore attached to the said (letter with sufficient copies) and was also duly served on the Respondents. With this latest development I think the issue raised by the Respondent on the absence of the Appellant’s Notice of Appeal from the Record has consequently been laid or put to rest. As it was due to the mistake on the part of the lower Court’s registry, the Respondent’s Preliminary Objection though found to be true has been sufficiently answered and rectified. It is to be noted that the Record of Proceedings in the present case was compiled and forwarded by the Registry of the lower Court to this Court rather than by the Appellant. Under the circumstances, it is the duty of the Registry of the lower Court rather than that of the Appellant to transmit the Record of Proceedings to this Court in accordance with Order 3 Rule 13 of the Rules of this Court, 2002 – see Effiong V. Ironbar (1998) 13 NWLR (pt 528) 367. It is my humble view that the objection of the Respondent should be overlooked and struck out. I hereby strike it out. I will now proceed to consider the Appellant’s submission under his (3) Issues, and the relevant Reply from the Respondents’ Brief.
In arguing the first issue of the Appellant’s Brief, reference is made in the said Brief to the Pleadings of the parties and to the relevant paragraphs of both the Statement of Claim and the Defence where issues were joined on the legality or otherwise of the letter of dismissal (Exhibit 16). The relevant averments are said to be contained in paragraphs 19, 20 and 21 of the Statement of Claim and paragraphs 10 and 11 of the Statement of Defence (see pages 183 – 187 and 176 or the Record respectively for two sets of paragraphs in the Pleadings referred to in the Appellant’s Brief). It is then pointed out in the said Brief that the action was instituted at the trial Court under or pursuant to the High Court (Civil Procedure) Rules 1988 Order 25 Rule 6 (1) which specifically provides on the Pleadings of the parties whereby the said parties, are enjoined to plead any matter or statute (e.g. the Statute Of Limitation), fraud or any fact “which if not pleaded might take the opposite party by surprise” (underlining supplied for emphasis). It is then submitted that it is mandatory for the Rules of Court (including order 25 Rule 6 (1) (supra) to be strictly compiled with. And should not or can not be compromised. See Gana Helma Malgwi V. Gadzama (2001) 11 NWLR (pt 678) 258 at 268. Also the use of the mandatory word “shall” in Order 25 Rule 6 (1) (supra) is said in the Brief to enjoin or indicate the need for mandatory compliance with the said provision, Gana Helma Malgwi V. Gadzama cited in support of the proposition. It is contended in the said Brief that the lower Court’s failure to strictly comply with the above Rule on pleadings by allowing the Respondent to raise an issue which they did not plead (i.e. on the Statute of Limitation) breached the said Rule and allowed the Respondent in the present case to spring or introduce any element of surprise on the Appellant. See Achineku V. Ishagba (1988) 4 NWLR (pt 89) 411 at 420 on the interpretation the Court gave the word “shall” in the context of order 25 Rule 6 (1) (supra).
In another arm of the Appellant’s submission under Issue 1, it is stated in the said Brief that a Defendant relying on a Statute of Limitation (like the Public Officers Protection Law) (supra) must specifically plead it as a special defence before he can be allowed by the Court to raise a Preliminary Objection on it – See Domingo V. George (1959) 2 FSC 198; Akinola Aguda on practice and procedure in the Supreme Court, Court of Appeal and High Court in Nigeria page 227 paragraph 18.7; Unical V. Essien (1996) 12 SCNJ 204 at 326; and Eigbejale V. Oke (1996) 5 SCNJ 4 at 63 cited in the Brief in support of the principle. Reference was also made in the Brief to pages 76 – 77 of the Record where the learned trial Judge is said to have erroneously considered and upheld the Respondents’ Motion on Notice in which the, Preliminary Objection, was wrongly raised by the Respondents based on the Statute of Limitation which was not pleaded as a special defence see also Mobil Oil (Nig) Plc V. IAL 36 INC (2000) 6 NWLR (pt 659) 146 at 162; Gold Coast and Ashanti Electric Power Development Corporation V. The Attorney General of Gold Coast (1977) 3 WACA 215; Aina V. Trustees Nigeria Railway Corporation Pension Fund (1970) (Vol. 16) NSCC 255; Ege Shipping & Trading Industries V. Tirgris International Corporation (1999) 4 NWLR (pt 637) 70 cited and relied upon in the Brief where the Courts decided on or against the impropriety of taking or initiating demurrer proceedings after the filing of Statement of Defence or after issues are joined. Finally this Court is urged in the Appellant’s Brief to hold that the Preliminary Objection filed by the Respondents at the lower Court was baseless as the fact relied upon was not pleaded as required by law and as the said Respondents had already filed their Statement of Defence and issues were therefore joined.
As earlier indicated, the Respondents’ Brief which only framed and argued one lone issue has no answer or reply to the above submissions of the Appellant under Issue 1. Nevertheless, and despite the Respondents silence on the issue I will not take the Appellants submission on it for granted. I will rather consider the said Issue 1 and the submission canvassed thereto on their merits. Let me begin by dealing with the option taken by the learned trial Judge in the present case when after hearing the Motion of the Respondents where the Preliminary Objection of issue was raised as to the competence of the Appellant’s suit, he deferred his Ruling on it until the final judgment.
This delay in determining the fate of the Preliminary Objection by the learned trial Judge was a wrong approach and was the cause of the problem in the present case. It should be noted that the Motion on Notice filed by the Respondents in which the Preliminary Objection was raised attacked the competence of the Suit for its being statute-barred. In other words the objection was based on the grounds that the action was caught by the Statute of Limitation to wit Public Officers (Protection Law Cap 121) Laws of Kano State, 1963. In effect the Limitation Law (supra) by its Section 2 (a) apart from making the action statute-barred also ousted the jurisdiction or competence of the trial Court to hear and determine the suit which was instituted outside the limitation period (of three (3) months). It is a settled principle of law that whenever a Preliminary Objection is raised as to the competence of the trial court to hear a matter such a Court is duty bound to determine the said Objection one way or the other before going into the substantive matter or case. Even where the Objection raised is or appears to be frivolous; it should not be ignored or deferred (as in the instant case). Thus the learned trial Judge in the instant case was duty bound to express in writing (in his Ruling) whether or not he agreed with the Preliminary Objection raised by the Respondents so that the fate of the Objection would be known by the said Respondent before going into the substantive case – see Onyekwuluje Deje V. Animashaun (1996) 3 NWLR (pt 439) 637 at 644; Chief Bright Onyemeh V. Lambart Egbuchulam & Ors (1996) 5 NWLR (pt. 448) 255 at 265 at 265; Tambco Leather Works Ltd V. Abbey (1998) 5 NWLR (pt 579) 548 at 554 – 555; and Onuoha V. NBN (1999) 13 NWLR (pt 636) 621 at 624. By not deciding or pronouncing in limine on the Preliminary Objection or issue raised by the Respondents in their Motion on Notice dated the 13th of October, 1999, the learned trial Judge acted contrary to the practice and principles of dealing with Preliminary Objection or issue of law when raised and when they are meant to attack the competence of the suit or the jurisdiction of the Court to hear and determine the suit. The learned trial Judge in the instant case wrongly held in his short Ruling of 18/4/2000 as follows:
“Court: I am of the opinion that the implication of this Application will entail my giving a Ruling which in effect would have (sic) the implication of a final judgment.
And because of this, I wish to reserve my Ruling until the end of the trial and make the application and the Ruling on it to form part of my judgment.” (Underlining is supplied for emphasis).
It is my humble view that the above quoted decision or option adopted by the learned trial judge (particularly the underlined part) apart from offending the principle and practice of dealing with Preliminary Objection or Issue has also defeated the aim and objective of the Respondents’ Objection. I am not unmindful of the fact that the Respondents did not bring that Motion timeously until after the close of Pleadings and even after they have called all their witnesses except the last one. Nevertheless since the learned trial Judge decided to hear the parties (and he in fact heard them) on the Preliminary Objection, he should have decided or determined it in limine by making a definite pronouncement on it before continuing with the substantive proceedings. It is trite that the issue of jurisdiction, because of it’s fundamental nature once raised has to be decided in limine by the Court one way or the other before dealing with other issues in the proceedings which can or are likely to be rendered a nullity (in absence of jurisdiction) no matter how well conducted they might have been and there is thus the need to avoid embarking or continuing with exercise in futility – see Madukolu V. Nkemdilim (1962) 2 SCNLR 341; A.G. of Federation V. Sode (1990) 1 NWLR (pt 128) 500; Nalsa Team Associate V. NNPC (1996) 3 NWLR (pt 439) 621; and Bright Motors Ltd V. Honda Motors Co. Ltd (1998) 12 NWLR (pt 577) 230 at 246.
The Respondents’ Application to dismiss the case in limine in the present case was made not only after the completion of Pleadings and the joining of issues but after hearing of witnesses had not only commenced but was almost completed (i.e. only the last of the Defendants witnesses was yet to testify). It is also commonly accepted and agreed by both parties in the instant case that the Respondents did not plead the Public Officers (Protection) Law (supra) in their Statement of Defence or some facts indicating their reliance on that statute as a bar or limitation against the Appellant’s suit. The contention of the Appellant is that since the Limitation Law or Statute was not pleaded the Motion on Notice which introduced the Preliminary Objection based on the said Law or Statute was not properly before the trial Court and it should not have been allowed or considered to introduce an un-pleaded matter. I will readily agree with the learned counsel for the Appellant on this point and on the principles or rule of Pleadings as binding on the parties and the Court so that neither party would be allowed to introduce and un-pleaded matter. This cardinal rule of pleadings is to ensure that the parties in the proceedings are accorded due and proper notice of their opponent’s case and neither of them would be taken by surprise. They would also have adequate time and opportunity to prepare on the issues raised or joined in their respective pleadings – see George V. Dominion Flour Mills (1963) 1 SCNLR 117; Esso Petroleum Co. Ltd V. South Port Corporation (1956) AC 218; J.O. Idahosa & Anor V. D. N. Oronsaye (1959) 4 FSC 166, (1959) SCNLR 407; Metalinpex V. A.G. Leventis & Co. Ltd (1976) 2 SC 91; and Pasaitto V. Adecentio (Nig) Ltd (1997) 11 NWLR (pt 539) 467 at 481 – 482. It follows from the above elementary rule or principle of pleadings that where a Defendant wishes to rely on a special defence like the Statute of Limitation (or the Public Officers Protection Law) as in the instant case such, defence has to be specifically pleaded – see Odubeko V. Fowler (1993) 7 NWLR (pt 308) 637; and U.B.R.B.D.A V. Alka (1998) 2 NWLR (pt 537) 328 at 339.
Although the Motion on Notice dated 13/10/99 which contains the Respondents’ Preliminary Objection to the Appellant’s suit did not state in its heading, the law under which it was brought – (see page 173 of the Record), it is clearly stated in the said Motion (in its middle) that it was “brought pursuant to Section 2 (a) of the Public Officers (Protection) Law Cap 121 Laws of Kano State.” Thus it is clear that the Motion was brought under the Statute of Limitation rather than under the High Court (Civil Procedure) Rules of Kano State 1998 (Order 25 thereof) as wrongly speculated in the Appellant’s Brief. It is also to be observed that even though a demurrer procedure or process is expressly forbidden or abolished under Order 24 of the High Court (Civil Procedures) Law of Kano State (supra) as rightly pointed out in the Appellant’s Brief, there is nothing prohibiting a procedure or process in lieu of demurrer whereby either party may or is permitted to raise a preliminary point of law either arising from his Pleadings or with the permission of the Court or Judge calling or asking for dismissal in limine of action or suit see – Order 24 Rule 3 of the said High Court Rule (supra); Fadare V. A. G. Oyo State (1982) 4 SC 1; Dada V. Ogunsanya (1992) 3 NWLR (pt 232) 745; Madu V. A. G. of Anambra State (1992) 2 NWLR (pt 226) 258; Akinade V. NASU (1999) 2 NWLR (pt 592) 570. I am of the humble view that although the Respondents in the present case did not specifically plead the Statute of Limitation in their Statement of Defence, their subsequent Motion introducing it was valid and proper as it was permitted by the learned trial Judge in his discretion and under the above principle on Proceedings in lieu of demurer. Moreover, I recall that when the learned counsel for the Appellant was asked by this Court during his oral argument of the Appeal viva voce, he admitted or conceded that he did not take any step during the trial to challenge the validity or otherwise of the Respondents Motion on Notice. Thus he did not object to the introduction of the non-pleaded Statute of Limitation by the Respondents at or before the trial Court. Instead of doing so, the Appellant’s counsel in fact condoned, submitted to and participated in the hearing of the said Motion by filing a Counter-Affidavit and arguing in reply on the applicability of the Statute of Limitation to the suit. I am of the firm view that the Appellant’s conduct and his silence or acquiescence on the validity of the Respondents’ Motion of 13/10/99 amounted to a waiver even if the said Motion is conceded or regarded to be wrongly brought as it was not in compliance or strict compliance with the High Court (Civil Procedure) Rules (supra). The law is settled that where a party to a suit has been given reasonable and adequate opportunity of being heard in the manner prescribed by the law or Rules of Court and for no satisfactory reason he fails or neglects to utilise such an opportunity he has thereby waived his right and he is estopped or can not subsequently be heard to complain. Equally, it is the law that where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on Appeal on the particular point or procedure. In the present case since the Appellant did not object to the procedure under which the Respondents’ Motion on Notice was brought at the trial Court, he is thereby estopped under the principle of waiver to raise the point at this stage – See Tsokwa Oil Co Ltd V. Bank of the North Ltd (2002) 5 SCNJ 176 at 192; Kossen (Nig) Ltd V. Savana Bank Ltd (1995) 12 SCNJ 29; Ojomo V. Ijeh (1987) 4 NWLR (pt 64) 216 at 244 – 245; Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (pt 319) 143. In the instant case the non compliance with the rules of procedures alleged by the Appellant in his submission under Issue 1 amounts only to a simple as opposed to fundamental irregularity in the procedure which can be waived and by his conduct in participating or taking step in the hearing of the Respondents’ Motion without any complain, he has not only acquiesced but accepted the validity of the said Motion and he will not be allowed to complain against it thereafter in the Appeal as he is attempting to do in the present Appeal – See Ogbonna V. A. G. Imo State (1992) 1 NWLR (pt 220) 647; Noibi V. Fikolati (1987) 1 NWLR (pt 52) 619 and Effiong V. Ikpeme (1999) 4 NWLR (pt 606) 260 at 272.
The Appellant’s counsel also devoted a considerable effort and time (in his Brief) on the interpretation of the mandatory term “shall” as contained or used in Order 25 of the High Court (Civil Procedure) Rules of Kano State (supra). I consider this as a merely wasted effort. It is an over adherence to the technical rules of procedure aimed at defeating the doing of justice in the case. It is trite that rules of procedure are made for the convenience and orderly hearing of cases, in Court. They are therefore directory and aimed at aiding and achieving justice with ease and dispatch. Consequently they should not be read or interpreted in absolute or slavishly as masters rather than as an aid to achieving justice as sought or advocated by the Appellant in the present case. Where the rules are sought to be employed to cause havoc to justice as in the present case they should be jettisoned by the Court whose duty is to hear the case on merits and to do substantial justice – See U.T.C. V. Patriotei (1989) 2 NWLR (pt 103) 244; F.S.B International Bank Ltd V. Ihano Ltd (2000) 11 NWLR (pt 697) 620; Irukwu V. T.M.I.B (1997) 12 NWLR (pt 531) 113 at 132 – 133; and Monye V. P.T.F.T.M. (2002) 15 NWLR (pt 789) 209 at 233 – 224.
Moreover, since the Appellant did not raise the issue of challenging the Motion on Notice filed by the Respondents at the trial court, the said issue is consequently a fresh or new issue which is being raised at this level (i.e. in the Appeal) and which was not raised or canvassed at the trial court. It is elementary that such a fresh or new issue raised by the Appellant on Appeal in this Court is incompetent and cannot or will not be allowed to be raised by the said Appellant without the leave of this Court sought for and obtained. Consequently, any argument both oral and written by the Appellant in respect of the new or fresh issue for which leave was not sought for and obtained from this Court will be discountenanced and disregarded.
Since the Appellant in the instant case did not obtain the requisite leave of this Court before raising the issue attacking the Motion on Notice, that issue (i.e. Issue: 1) is therefore incompetent and is hereby discountenanced See Mogaji V. Cabdury (Nig) Ltd (1985) 2 NWLR (pt 7) 393; Kurfi V. Mohammed (1993) 2 NWLR (pt 277) 602; and Alade Toyinbo V. Adewunmi (1990) 6 NWLR (pt 154) 98.
On my above consideration of the Appellant’s Issue 1, I am inclined to resolve the said issue with its related Ground of Appeal (Ground 1) against the Appellant. I hereby accordingly so resolve them.
Issues 2 and 3 of the Appellant’s Brief are argued together in the said Brief. This is said to be due to their similarity or affinity with one another.
I will adopt a similar approach in this Judgment by also considering or dealing with the two issues together. The Respondent’s lone issue and the submissions canvassed therefore are also relevant to the Appellant’s Issues 2 and 3 and will accordingly be considered as a Reply thereto. Under the twin issues as argued together in the Appellant’s Brief, the Appellant’s main grudge is against the holding of the learned trial Judge that by virtue of the letter of his dismissal from service (Exhibit 16), the effective date of his dismissal was the date borne by the said Letter (i.e. 30/1/96). It is the Appellant’s contention that the effective date of his dismissal should not be the date of the said letter but the date from which the dismissal of the Appellant was backdated and made or said to take effect (i.e. from 1/6/94). It is vehemently argued in the Brief that by holding that the effective date of the Appellant’s dismissal was 30/4/96 instead of 1/6/94, the learned trial Judge was wrong and he allowed oral evidence to contradict a written document or instrument contrary to Section 133 (2) of the Evidence Act, 1990. Reliance is also placed by the Appellant on the authorities of Union Bank of Nigeria V. Ogizi (1994) 3 SCNJ 42 at 55; Iweka V. SCOA (Nig) Ltd (2000) 7 NWLR (pt 664) 325 at 342; Smart Gabari Ogbimi V. Mrs. Beauty Ololo & Ors (1993) 7 NWLR (pt 304) 128 at 136; Toriola V. Arewa (1949) 12 WACA 505; Onwonta V. Minaise (1952) 14 WACA 77; Nasiru Bello & Ors V. Attorney General of Oyo State (1986) 5 NWLR (pt 45) 828; Sanda V. Kukawa L.G. (1991) 2 NWLR (pt 174) 379 at 388 on the definition of a cause of action and when it accrues for the purpose of computing the limitation period under a Statute of Limitation as in the present case. It is also contended that the retrospective nature of the Appellant’s dismissal has rendered the notice in Exhibit 16 invalid.
Secondly the Appellant’s Brief attacks the learned trial Judge’s treatment of the Respondent’s Motion on Notice whereby he only considered the Respondent’s arguments on the Preliminary Objection without giving equal or similar consideration to the Appellant’s arguments or Reply before coming into his conclusion that the Public Officers Protection Law of Kano State applied to the Appellant’s case. The case of Ibrahim V. JSC (1998) 14 NWLR (pt 584) 1 at 33 relied upon by the learned trial Judge is said in the Brief to be inapplicable and was wrongly applied by the said trial Judge to the facts and circumstances of the present case. The non consideration of the Appellant’s arguments or Reply before coming to this conclusion on the Motion on Notice is also said in the Brief to be a denial of the Appellant’s constitutional right of fair hearing as enshrined in Section 36 of the 1999 Constitution – see Mohammed V. Kano N.A. (1968) 1 ALL NLR 41; Deduwa V. Okorodudu (1976) NWLR 236; and Adigun V. A.G. Oyo State (1987) 1 NWLR (pt 53) 678 at 709.
In the Respondent’s Brief, the lone and single issue formulated therein replies to some extent the Appellant’s arguments on the twin Issues as above reproduced. It is argued in the Respondent’s Brief that even if the Appellant’s contention is accepted that the letter of his dismissal (i.e. Exhibit 16) is said to be effective from 1/6/94 (as it was backdated) still that Appellant was late in going to Court by two and a half (2(1/2)) years. The learned trial Judge however held that the Appellant’s effective date of dismissal as per Exhibit 16 was 30/1/96 and he was late in going to Court by three (3) months when he commenced or instituted the present action on 28/6/96.
I think this computation by the Respondent must be wrong as it should be about 5 months from 30/1/96 to 28/6/96. What the learned trial Judge said in his Judgment (at page 77 of the Record) and as I confirmed is that the Appellant’s action was not commended within the 3 months period.
In any case I will readily agree with the Respondents that the Appellant’s arguments as to the effective date of Exhibit 16 are very shallow and illogical. Whichever date is taken or regarded as the effective date of the Appellant’s dismissal or the date of the accrual of his cause of action, he is still late in commencing his suit which was filed outside the statutorily limited period of three (3) months. I also found that it is the Appellant rather than the trial Judge who is blowing hot and cold or approbating and reprobating on the point. In one breath the Appellant is urging this Court to uphold the backdated effective date of his dismissal as 1/6/94 rather than 30/1/96 – the date of the letter in Exhibit 16. In another breath however the same Appellant is attacking Exhibit 16 for containing a retrospective date of dismissal and he consequently urges this Court to hold that it is invalid null and void and having no legal effect ab initio – see page 10 of the said Appellant’s Brief. It is therefore my humble view that whether we regard the date of Exhibit 16 or the backdated date which is preferred by the Appellant, it does not make any difference on the application of the Public Officers (Protection) Law of Kano State as in either case the 3 months period has elapsed and the Appellant’s action instituted after the three months period of limitation is consequently statute-barred under the law (supra).
The issue of the accrual of a cause of action, its definition and relationship with limitation of action has been aptly considered and we settled in a long line of decided cases- see Egbe V. Adefarasin (1987) 1 NWLR (pt 47) 1; Savannah Bank of Nigeria Ltd V. Atlantic Shipping Agencies Ltd (1987) 1 NWLR (pt 49) 212; Sanda V. Kukawa L.G. (supra – cited in the Appellant’s Brief); Solomon V. African Steamship Co 9 NLR 99; Ibrahim V. Ossim (1987) 4 NWLR (pt 67) 965; Patkun Ind. Ltd V. Niger Shoes Manufacturing Ltd (1988) 5 NWLR (pt 93) 138; and Emiafor V. Nigerian Army (1999) 12 NWLR (pt 631) 326 at 369 – 370. I agree with the Appellant’s submission that Ibrahim V. JSC (supra) relied upon by the learned trial Judge is not a directly relevant authority for the purpose of computing the period of limitation vis-a-vis the accrual of the cause of action. Rather that authority concentrates and is more relevant in defining the word “person” for the purpose of the application of the Public Officers Protection Law (supra) – i.e. whether the term includes public bodies or authorities (i.e. artificial persons or body corporate) in addition to the natural persons (human beings). That however is not the issue in the present case. I am not however saying that the case is not relevant at all to the present case.
It is certainly relevant on the application of Section 2 (a) of the Public Officers (Protection) Law (supra) to the present case as a statutory bar to the Appellant’s action at the trial Court which was commenced outside the limitation period of three months. The only exceptions provided under the Section are where the complain is a continuous damage or where the cause of action arose while the Plaintiff was a convicted prisoner and serving a prison term or sentence when the act occurred or when the cause of action arose. In the former case the period is to be computed from the date the continuous damage ceases while in the later case, the time will start running from the date the prisoner was discharged. Another exception is where the Public Officer of Office concerned was acting outside the colour of his or its office. Thus the contention of the learned counsel for the Appellant that if the earlier date of 1/6/94 is regarded as the date of the accrual of the cause of action (as he meticulously canvassed in the Appellant’s Brief) then the limitation period had elapsed without him knowing about it or having notice of his dismissal is devoid of any substance since that does not fall within the above exceptions to the application of the Limitation Law – see Ibrahim V. JSC (supra); Gyang V. NSC (2002) 15 NWLR (pt 791) 454 at 464; and Grains Production Agency Ors V. Ezegbulem (1999) 1 NWLR (pt 587) 399 at 406 – 407. I have already stated above that it does not matter whether we accept or adopt either of the two dates (30/1/96 or 1/6/94) in the instant case since in either case the period of limitation (3 months) had expired before the Appellant’s commencement of the suit in the present case and without any reasonable or recognized excuse on his failure to do so within the statutorily accepted or recommended period (of 3 months) under the law (supra).
On the Appellant’s complain that the learned trial Judge considered only the Respondent’s submissions on the Preliminary Objection and thereby acted in breach of the Appellant’s right of fair hearing. I found from the Record that the Appellant’s allegation in this regard is not true. It is pertinent here to note or recall that the said Appellant had filed a Counter-Affidavit against the Motion on the Preliminary Objection (see pages 177 – 178 of the Record). In addition to that, the Appellant’s counsel appeared in court and was duly heard by the learned trial Judge in his Reply to the Preliminary Objection on 18/4/2000. (See pages 64 – 56 of the Record). Under the circumstances of the case therefore the Appellant cannot complain about any breach of his right to fair hearing. Although the learned trial Judge actually referred to the submissions or arguments of Mr. Surajo (DCL) of counsel to the Respondent and did not refer to those of the Appellant’s counsel (Mr. Bulama) at the end of his judgment where what is regarded as the Ruling is contained, this in my opinion does not mean that he did not consider at all the Appellant’s submissions on the issue of the Limitation Law. Apart from the full Record of the submissions of the Appellant’s counsel on the Preliminary Objection at pages 54 – 56 the Record, the learned trial Judge also held and stated in his said Ruling as follows:
“It is in evidence that the Plaintiff (i.e. the Appellant) was dismissed from service on 30th January 1996 whereas he filed and commence (sic) this suit on the 28th June, 1996.”
The above Ruling or conclusion by the learned trial Judge clearly shows that he considered the evidence adduced by both parties in the case. The concept or principal of fair hearing as embodied in the natural justice maxim of audi alteram partem and enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a double-edged concept of justice and fairness in a judicial or quasi-judicial proceedings and it is applied for the benefit of both parties to the said proceedings. The concept should not be viewed under or from the perspective of or impression of only one of the parties in the proceedings but rather on the objective view of an outsider or third party or a reasonable observer who has been present through-out the proceedings – See Mohammed V. Kano N.A. (supra); A.S.R. Co. Ltd. V. O.O. Biosah & Co. Ltd (1997) 11 NWLR (pt 523) 145 at 158; Garba V. University of Maiduguri (1989) 1 NWLR (pt 18) 550; Federal Civil Service Commission V. Laoye (1989) 2 NWLR (pt 106) 652; and Adedeji V. Police Service Commission (1968) NMLR 102. As the Appellant in the instant case is not complaining that he was not heard or given an opportunity of being heard by the learned trial Judge, his complain that he was denied fair hearing has no substance and cannot be sustained. On my above consideration of the Appellants Issues 2 and 3 the said twin Issues together with their related Grounds of Appeal (Grounds 2 and 3) must also be resolved against the said Appellant. They are also hereby so resolved.
On my overall resolution of all the three Issues in this Appeal against the Appellant, his Appeal must consequently fail and be dismissed. I accordingly hereby dismiss the Appeal. The judgment of the trial Court is hereby affirmed. Under the circumstances of the case, and in sympathy to the Appellant’s condition I will make no order as to costs.
ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother, Adamu, JCA. I agree with the reasoning contained therein and the conclusion arrived thereat.
I have nothing further to urge. I, too, for the reason contained in the lead judgment of my learned brother, Adamu, JCA, find the Appeal unmeritorious and consequently dismiss it.
I abide by all the consequential orders proposed in the said lead judgment including the order as to costs.
BABA ALKALI BA’ABA, J.C.A.: I read before hand the judgment of my learned brother, Adamu JCA, and I am in full agreement with him that this Appeal has no merit.
A cause of action is said to be statute barred when no proceedings can be brought in respect of it because the period laid down by the Limitation Act has lapsed. When an action is statute barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation Law for instituting such an action has elapsed.
In the instant Appeal, the Defendant/Respondent relied on the provision of Section 2 (a) of the Public Officers (Protection) Law Cap 121, Laws of Kano State in challenging the jurisdiction of the trial court to entertain the action as it was not commenced within the three months period in accordance the said Law which reads:
“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or any authority or in respect of any alleged neglect or default in the execution of any such Law, duty or authority or in respect any alleged neglect or default in the execution of any such Law, duty or authority the following provisions shall effect:
(a) The action, prosecution of proceedings shall not lie or to be instituted unless it is commenced within three months next after the act, neglect or default complaint of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof;”
At page 77 of the Record, the learned trial Judge, delivering his judgment, held;
“It is in evidence that the Plaintiff was dismissed from service on 30/1/90 whereas he filed and commenced this suit on 28/6/96.”
In view the finding of the learned trial Judge quoted above and the provisions of Section 2 (a) of the Public Officers (Protection) Law Cap 121, Laws of Kano State, it can not be disputed that the action of the Appellant as Plaintiff, in respect of this action is statute barred. I therefore hold the view that the judgment of the learned trial judge, Umar, J, delivered on 7th June, 2000, is right and there is no reason whatsoever for interfering with the judgment.
For this reason and the fuller reasons contained in the judgment of my learned brother, Adamu, JCA, I also dismiss the Appeal and make no order on costs.
- Bulama For Appellant
Fadludeen A. Ladan For Respondent