EUNICE N. NWOSU v. POWER HOLDING CO. OF NIG. & ORS.
(2011)LCN/4320(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/B/77/2009
RATIO
WHETHER ARGUMENTS IN A BRIEF OF ARGUMENT MUST BE RELATED AND CONFINED TO THE ISSUES FORMULATED FOR DETERMINATION BASED ON THE GROUND OF APPEAL CHALLENGING THE JUDGMENT APPEALED AGAINST
Arguments in a brief of argument must be related and confined to the issues formulated for determination based on the ground of appeal challenging the judgment appealed against. Thus any argument to the contrary is irrelevant and ought to be discountenanced. See BROWN V. BASSEY (2000) 4 NWLR Pt 651; I.OKOLO V. UNION BANK OF NIGERIA (1998) 2 NWLR (Pt.539) 618. PER GEORGE OLADEINDE SHOREMI, J.C.A.
WHETHER A BAD, FAULTY OR INELEGANT BRIEF WILL STILL BE CONSIDERED IN THE DETERMINATION OF AN APPEAL
A bad, faulty or inelegant brief will surely attract some adverse connects from the courts but such a brief will not be regarded as defective or void brief. It will still be considered in the determination of an appeal by an Appellate court in order to do substantial justice as between parties. EYA V. QUDUS (2001) 15 NWLR (Pt.737)587; (2001) 30 WRN 71. PER GEORGE OLADEINDE SHOREMI, J.C.A.
STATUTE BARRED ACTION: WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSE OF DETERMINING WHETHER AN ACTION IS STATUTE BARRED OR NOT
For the purpose of limitation of action time begins to run from the moment the cause of action arose or accrued. The cause of action accrues from the date on which the incident which gave rise to the cause of action occurred. In determining whether an action is statute barred or not it is pertinent to ask when time begins to run. And time begins to run when there is a party who can sue and be sued and all facts here happened which are material to be proved to entitle the Plaintiff to succeed. FADARE V. A.G. OYO STATE 1982 4 SC 1,1982 NSCC 52-60, BOARD OF TRADE V. CAYZER IRIME CO. LTD (1927) AC 610; U.B.A. PLC V. BTL INDUSTRIES LTD (2006)2 ALL NL REPORT 344. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
EUNICE N. NWOSU Appellant(s)
AND
1. POWER HOLDING CO. OF NIG.
(NATIONAL ELECTRIC POWER AUTHORITY)
2. ENGR. I. C. OKPALA
3. A. A. ONAEMO
4. A. A. ADENIYI Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice Awokulehin of the Federal High Court Benin delivered on 11th April 2008. The fact in this case are that the 1st Respondent who was the 1st Defendant in the lower court was at that time material to this case a Federal Government Agency called National Electricity power Authority (NEPA) created by an Act of the National Assembly i.e. NEPA Act Cap 256 Laws of the Federal Republic of Nigeria 1990 and Cap N33 Laws of the Federal Republic of Nigeria 2004.
The 2nd, 3rd and 4th Defendants now Respondents were all staff/officials of the 1st Respondent and public officers by S. 318 (1) Constitution of the Federal Republic of Nigeria 1999 and Section 18 interpretation Act Laws of the Federal Republic of Nigeria 1990.
Sometime in 2004 the Federal Government decided to commercialize the 1st defendant by changing its name to Power Holding Corporation of Nigeria for more efficient services to the public with all assets, liabilities and statutes remaining intact till the National Assembly comes up with a new law.
Appellant was employed as a clinic attendant on the 5th of August 1997 by the National Electric Power Authority (NEPA) Sapele power station Ogorode by a letter signed by one Engineer O.L. Momah and now had a contract of employment with NEPA through the N.E.P.A. Act Cap 256 laws of the Federation 1990 and N.E.P.A. condition of service 1998.
On the 20th day of December 2004, 1st Respondent through its officials determined the Plaintiff/Appellants appointment with 1st Respondent vide Regulation 41.6 of N.E.P.A. condition of service (1998) in pages 75 and 50 to 74 of the complied record after a plethora of queries, warning, redesignation, redeployment and serious warning shown also on pages 77 to 100 of the record with all her benefits. That after the Respondent action in paragraph 1.04 above, Appellant took out a writ and statement of claim in the Federal High Court No. 2 in Benin against the Respondents over the determination of her appointment on the 5th day of August 2005.
Respondents responded to this in the same court by filing a joint statement of defence and a motion on notice for setting down of points of law raised in Respondents joint statement of defence that Appellant’s claim was statute barred by filing her writ over eight months after the cause of action arose. This can be found in pages 14-17 of the compiled record of proceedings.
Appellant filed a counter affidavit which is in pages 20-22 in the records of proceeding.The court heard arguments from Counsel representing Parties on pages 107,112 and 116 respectively.
On the 11th day of April 2008, the trial Court ruled that the action was statute barred and dismissed it due to the provisions of the N.E.P.A. Act Section (4) Cap 256 Laws of the Federal Republic of Nigeria 1990 and the Public officers protection Act S.2(a) which provides for taking any cause of action against Respondents within three months. By these provision the Plaintiff/Appellant violated by commencing her action after eight months.
It is this decision that the Appellants are appealing against claiming the court did not look at the merits of the case and whether the appropriate authority signed the letter of determination.
After a consideration of the case put forward by the Appellant and Respondents as Plaintiff and Defendants the trial judge concluded as follows: I quote –
“From all the above, it is beyond dispute that the Defendants are persons within the meaning of section 2(a) of the said Act, Equally, they are public officers within the meaning of the law.
I agree with the learned counsel for the Applicants in the instant case that the cause of action arose on the 20th of December, 2004 following the averment of the Plaintiff in paragraph 19 of the Statement of Claim. That much was not contested by learned counsel for the Respondent. To determine when this action was instituted simply calls for reference to the Writ of Summons and Statement of Claim and from both, it is clear that this action was commenced on 5th of August, 2005 which is about eight months from the date the cause of action arose. It was the submission of OBADAN Esq. for the Applicant that having commenced the action outside the three months prescribed same is statute barred. On his part OJEKHEKPEN Esq. for the Respondent argued that the act cannot avail the Defendants as they acted in bad faith asking for time to investigate after the Plaintiff wrote complaining of the illegal act to which the Applicants replied with series of Memo only to later turn round and say the action is statute barred. That, according to the learned counsel is fraudulent and inequitable. EGBE VS. ADEFARASIN (1990) 1 NWLR (Pt.128) page 546 @ 584 NNAMANI, JSC. Said and I quote –
“Looking at Section 2(a) there is no bad faith or good faith contained therein expressly. What seems to stand out vividly are the words shall not unless commenced within three months. It seems to me that this is more a provision of limitation and is only one of Defence in the sense that a person sued after three months can rely on it to have the suit dismissed”. In my view the mandatory provision shall not lie, indicates that the action cannot be maintained or cannot take off unless brought within three months” (I respectfully adopt the above quotation as mine).
On the issue of correspondences between the parties, it is the law that such correspondence or negotiations, promises or whatever so called does not prevent or stop the period of limitation from running. The best option for a person to whom a right of action accrued is to institute the action against the other person so as to protect his interest or right in case the negotiation fails – see EBIOGBE VS. N.N.P.C. (1994) 5 NWLR (Pt.347) @ 649.
Going through the Statement of Claim, I have no doubt in my mind that the acts complained about against the Applicants were done in the performance of their public duties.
From the totality of my findings above, it is clear that the Plaintiffs Suit was not commenced within three months from the 20th of December, 2004 when the cause of action arose she is then left with a bare and empty cause of action which cannot be enforced.
I therefore find that the Defendants/Applicant’s preliminary objection succeeds and consequentially, the Plaintiff/Respondents action herein be and is hereby dismissed for being extinguished by operation of law.
That is the Ruling of this court.”
It is against this decision that the Appellant filed 4 original grounds of appeal quoted hereunder without particulars:
1) ERROR IN LAW
The learned trial Judge erred in law in dismissing the Plaintiff/Appellant suit on the ground that the suit is statute barred pursuant to the Public Officers Protection Act when the Public Officers Protection Act does not apply to the suit of the Plaintiff/Appellant.
2) ERROR IN LAW
The learned trial Judge erred in law in dismissing the Plaintiff/Appellant suit when the learned trial Judge has no jurisdiction to dismiss the Plaintiff/Appellant suit and his dismissal of the suit has occasioned a miscarriage of justice.
3) ERROR IN LAW
The learned trial Judge erred in law in dismissing the Plaintiff/Appellant suit based on the Parties affidavit and counter affidavit when the learned trial Judge cannot rely on affidavit evidence to determine the question of jurisdiction in the suit when pleadings have already been filed and his dismissal has occasioned a miscarriage of justice.
4) ERROR IN LAW
The learned trial Judge erred in law in dismissing the suit prematurely on the ground of jurisdiction when it would have been in the interest of natural justice for the court to hear evidence before determining the issue of jurisdiction.
In line with the practice of this court parties exchanged briefs of argument and on 1/12/10 when the appeal came up for hearing Mr. Odiete of counsel to the Appellant identified his brief of argument dated 13/2/09 filed on 16/4/09 and his reply brief dated 4/2/10 and filed same day. He adopted the briefs and relied on them as his argument and urged the court to allow the appeal and set aside the judgment of the lower court.
Mr. Obadan identified his brief dated 12/6/09 deemed properly filed and served on 4/2/10. He adopted same and relied on it as his argument that the appeal be dismissed.
From the grounds of appeal though not married to the grounds, the Appellant distilled 2 issues for the determination of the appeal thus I quote –
(i) Was the learned trial Judge right to have dismissed the case of the Appellant on the ground that the action of the Appellant has been extinguished by the operation of law (statute barred) that is by the Public Officers Protection Act?
(ii) Was the learned trial Judge right to have dismissed the case of the Appellant?
The Respondents also distilled 2 issues for determination in this appeal thus I quote –
ISSUE ONE
Whether the learned trial Judge was right in dismissing Appellants action with the provision of N.E.P.A. Act Section 1(4) laws of the Federation 1990 which is impari-materia with and synonymous with the Public Officers Protection Act S.2(a) Cap 379 laws of the Federation 1990.
GROUND 1
Should a cause of action that is unenforceable and bare by the laws stated in issue 1 above be allowed to litter courts record in the Country endlessly.
GROUND II
Should a contract of employment voluntarily entered into by parties not have its terms given effect to by the Court. If such contract is not illegal or there is no element of fraud.
GROUND III
Should limitation laws embedded in any statute creating any Organization or institution not be obeyed by parties having any contractual relationship with such institution or organization.
ISSUE TWO
Whether the trial court was bound by any law to look at the merits and demerits of this case when the limitation law raised as a defence by Respondent challenged its jurisdiction.
I must begin by saying that the appeal is premised on the question whether the suit was statute barred or not. This issue can effectively determine the appeal. The Appellant’s brief as drafted went beyond the necessary extent to the development of the argument. Briefs as in this case need not set out or summarise judgment of the lower court nor set our statutory provisions or contain accounts of proceedings below or the facts of the case. Arguments in a brief of argument must be related and confined to the issues formulated for determination based on the ground of appeal challenging the judgment appealed against. Thus any argument to the contrary is irrelevant and ought to be discountenanced. See BROWN V. BASSEY (2000) 4 NWLR Pt 651; I.OKOLO V. UNION BANK OF NIGERIA (1998) 2 NWLR (Pt.539) 618. A bad, faulty or inelegant brief will surely attract some adverse connects from the courts but such a brief will not be regarded as defective or void brief. It will still be considered in the determination of an appeal by an Appellate court in order to do substantial justice as between parties. EYA V. QUDUS (2001) 15 NWLR (Pt.737)587; (2001) 30 WRN 71.
With this in my mind I shall proceed to deal with the argument in the brief as much as relevant to the substance of the appeal. In his brief the Appellant quoted part of the judgment of the lower court and argued that: The Public Officers Protection Act as the court held no doubt intended to protect those in public offices and public Institutions. He cited the case of IBRAHIM V. J.S.C. (1998) 14 NWLR Pt.584 1. He argued that the interpretation given by the Supreme Court in that case not with standing does not apply to non governmental Institution, persons or business Organization.
He argued that the 1st Defendant N.E.P.A. had been changed to Power Holding Company. He argued that at the time the Appellant filed the suit NEPA had been privatized. He quoted Paragraph 1 of his Statement of Claim in the lower court. He said without conceding “was the trial right when he leaned on the on Public officers Protection Act to slip himself of jurisdiction to adjudicate on the suit?” He said to oust jurisdiction of a court the statute must be interpreted strictly. He referred to the cases of A.G. LAGOS STATE V. DOSUNMU (1998) 2 NSCC 545; ANYA v. IYAYI 1993 9 SCNJ 53.
He urged this court to interpret the Act the same way. He relied on the cases of FCDA V. JOSHUA SULE 1994 15 LRCN Page 221 at 237 lines 5-9. He argued further that the trial Judge was wrong to have applied Section 10(2) of the Interpretation Act as applicable to the Letter of Termination of the Appellant. He argued that Exhibit 10. i.e. the said letter of termination was not signed by the appropriate authority. He went further to contract an unimaginable situation to arrive at a conclusion that the termination of the Appellant was not done by the appropriate authority. He referred to the case of OWONIBOYS V. UNB. LTD. 110 LRCN 1725 at Pages 1745 Para Z.
He said NEPA’s condition of service should govern the termination of the Appellant. I have earlier commented on the way the brief was drafted, the Appellant’s counsel seems to be representing his case. An opportunity he did not have in the lower court; I therefore ignore the irrelevant part of the brief. He submitted that if the position of the Public Officers Protection Act is to be left as has been decided by the trial Judge a total absurd situation would have been created by the court.
He went further to say that there are authorities to the effect that when a public officer acts maliciously he cannot take the benefit of the Public Officers Protection Act. He relied on NWAKERE V. ADEWUNMI (1996) 1 ANLR 129 at 133; LAGOS CITY COUNCIL V. OGUNBIYI (1969) I ANLR 297 at 299. He said his Issue 2 is distilled from Ground 2 of his grounds of appeal in that the learned trial Judge did not give adequate consideration to law in dismissing the Appellant’s suit. He argued that the learned trial Judge ought to strike out the case rather than dismissing it. He said this court should allow the appeal, set aside the Ruling of the court and remit the case to the High Court before another Judge.
The Respondent on his own also as shown above distilled two issues and went further to state the relevant facts and said that the Appellant took out a writ and Statement of Claim on the 5th day of August 2005 in the Federal High Court Benin 8 (Eight) months after her termination. He referred to Pages 123-124 the Ruling of the trial Judge. He argued that the action was filed outside 3 months period as stipulated in the N.E.P.A. Act.
S.1 (4) Cap 256 Laws of the Federation 1990 which is impari – materia with S. 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation.
He relied on the case of EGBE V. ADEFARASIN (1990) 1 NWLR (Pt 128) Page 546 at 584 Nnamani JSC. OBIEFUNA V. OKOYE (1961) 1 ALL NWLR Page 357. He submitted that the trial Judge was right in holding that the Appellant’s action was statute barred. He argued that this court should hold that this borders on jurisdiction. He also relied on IBRAHIM V. JSC 1998 64 LRCN 5044 where it has been adjudged that: Any person in the Public Officers Protection Act includes artificial, persons and institutions, therefore the 1st Respondent is covered by this interpretation. He further submitted.
He pointed out that the Appellant’s counsel has misconceived the Law of Limitation of action to Public Officers Protection Act and N.E.P.A. Act for Decree 17 of 1984 which is the Public Officers Special Provision Act now repeal where appropriate authority was defined. He affirmed that the Judge was right in dismissing the suit.
On issue two the Respondent replied that the Laws of Limitation of action has no place for looking into the intention or malice, merits or demerits of cause of action. He cited the following cases EKEOGU V. ALIRI (1990) 1 NWLR (Pt 126) 345; LLOGDS V. BUTLER (149) 2 ALL ER 226 at 229. He also relied on ATIYAYE V. P.S. MIN. OF LOCAL GOVT BORNO STATE (1990) NWLR (Pt129)727.
He further argued that the S. 1(4) NEPA Act Laws of the Federation 1990 provides for 3 months within which any action can be commenced against the 1st – 4th Respondents. He urged this court to hold that the trial Judge was right to have dismissed the case. He said the Limitation Law does not contain any ouster clause that permits the court to look into any act done by the Respondent it only provides that action must be commenced within 3 months.
In his reply brief which merely contained a reargument of his case submitted that the Respondents argument did not follow from the grounds of appeal.
He said there is nothing sacrosanct in the Public Officers Protection Act as a procedural Law as the Respondent counsel seems to be relying on it by relying on ATIYAYE’S case.
Having carefully read the Ruling and the brief filed by the parties. I have come to realize that the grudge of the Appellant is that the Respondents can not claim the provisions of Public Officers Protection Act S.2 Cap 379 Laws of the Federation 1990 and S. 1(4) NEPA Cap 256 Laws of the Federation of Nigeria 1990 . Laws that are applicable as at the time the action was instituted.
The Provision of S.2 of Cap 379 Laws of the Federation provides I quote –
(2) Where any action, prosecution, or other proceeding is commenced against any person for any action done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the action, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
S. 1 (4) NEPA Act Cap 256 LFN 1990 also provides and I quote –
(4) The Public Officers Protection Act shall apply in relation to any action, prosecution or other proceedings in respect of any act, negligence or default done or committed by any officer, servant or agent of the Authority in his capacity as such officer, servant or agent as if the office of such person were an office in the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria.
The Appellant seems to appreciate that she is a civil Servant and that the 1st Defendant is a statutory body while 2nd – 4th are its servants. The above are evident in his Statement of Claim.
In Paragraph 17(e) the Respondent joint statement of defence pleaded that the cause of action arose on the 20th day of December 2004. In Paragraph 17 (f) it is stated that the Appellant commenced the action on 5th day of August 2004 about eight months after the cause of action arose.
There the Respondents contended that this defence been procedural the Judge upheld the defence and dismissed the Appellant’s case as having been statute barred. In EGBE ADEFARASIN (1990) NWLR (Pt. 128) 546 at 584 the court has this to say I quote
“What seems to stand out are the words shall not unless commenced within 3 months. It seems to me it is a provision of limitation and is only one of the defence in that person sued after 3 months can rely on it to have the suit dismissed.”
In my view the mandatory provisions “shall not lie” indicates that the action can not be maintained or can not take off unless brought within 3 months. See also OBIEFUNA V. OKOYE (1961) 1 ALL NLR Page 357.
For the purpose of limitation of action time begins to run from the moment the cause of action arose or accrued. The cause of action accrues from the date on which the incident which gave rise to the cause of action occurred.
In determining whether an action is statute barred or not it is pertinent to ask when time begins to run. And time begins to run when there is a party who can sue and be sued and all facts here happened which are material to be proved to entitle the Plaintiff to succeed. FADARE V. A.G. OYO STATE 1982 4 SC 1,1982 NSCC 52-60, BOARD OF TRADE V. CAYZER IRIME CO. LTD (1927) AC 610; U.B.A. PLC V. BTL INDUSTRIES LTD (2006)2 ALL NL REPORT 344.
The Public Officers (Protection) Act and the S.1 (4) of NEPA Act are limitation statute. It is a special defence like fraud, estoppels, res judicater and as such like those defence it must be specially pleaded by the Defendant before he can rely on it in any proceedings. This is to avoid taking the Plaintiff by surprise. In the instant case the Appellant was not taken by surprise as the Respondents raised same in their Statement of Defence see Paragraph 17 of the their pleadings.
In determining whether an action is statute barred, the court looks at the writ of summons and the statement of claim of the plaintiff alleging when the cause of action was committed which gives the party complaining a cause of action by comparing that date with the date on which the writ of summons in the action was filed. If the date on the writ is beyond the period allowed by limitation law, then the action is statute-barred.
Statutory limitation of right to institute action and effect of action being statute-barred on jurisdiction-
A legal right to institute an action is not a perpetual right but a right generally limited by statute. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer competently institute an action. A cause of action becomes statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law has elapsed. The latent effect of an action being statute-barred is that it affects the legal competence of the jurisdiction of the court. In the instant case, the plaintiff instituted the action outside the time prescribed therefore by the applicable statute, the trial court had no jurisdiction to entertain the action and rightly dismissed it. See (2010) All FWLR Pt 504 Pages 1585-1586.
In this case the trial Judge was in order when he held that the suit of the Appellant is statute barred having been instituted after the limitation period and the 2nd- 4th are well protected. The Appellant submitted that the trial court ought to have looked into the merits or demerits of the case.
In BUTLER’s case Supra stratfield said I quote –
“I agree that one of the principle of the Act (Limitation) is that those who go to sleep on their claims should not be assisted by the court in recovering property or damages.
In EKEOGU V. ALIRI (1991) 3 NWLR (Pt 179) 258 SC. The court held that where a public officer raises a plea of protection under the Protection Law the court should not pry into the conduct of such officer which gave right to the action. The issue before the court at trial stage will be whether the action was maintainable, and so malice is irrelevant.
From the above reasons the two issues are resolved against the Appellant and in favour of the Respondents. In event the appeal is unmeritorious and it is dismissed. The judgment of the trial Judge is affirmed. I make no order as to cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, G.O. Shoremi, J.C.A. I am at one with the reasons stated in the said lead judgment for holding that this appeal is unmeritorious. I also dismiss the appeal and abide by the consequential order contained in it. I equally make no order for costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother SHOREMI, JCA, and I agree with all his reasons and conclusions. I too would dismiss this appeal for being devoid of merit. No order for costs.
Appearances
A.B. Odiete Esq.For Appellant
AND
C. O. Obedan Esq.For Respondent
