MR. ELEAGU CHRISTIAN CHUKS -vs- ABIA STATE UNIVERSAL BASIC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: 2^ND MARCH 2018

SUIT NO. NICN/OW/56/2017

BETWEEN:

ELEAGU CHRISTIAN CHUKS………….………………………..CLAIMANT

AND

ABIA STATE UNIVERSAL BASIC EDEUCATION BOARD………DEFENDANT

REPRESENTATIONS:

U. APO, HOLDING BRIEF OF I.P. UWON, FOR THE CLAIMANT
C. IKEDIEZE, SENIOR STATE COUNSEL, MINISTRY OF JUSTICE, ABIA STATE, FOR THE DEFENDANT

JUDGMENT

This suit was commenced by way of originating summons on the 28^th September 2018. The reliefs sought by the claimant are as listed hereunder:

A declaration that the purported retirement of the Claimant by the Abia State Universal Basic Education Board via the purported letter with reference No: PEN/S.15/V/28 dated 7/9/2016 by the Defendant is ultra vires, illegal, wrongful, null and of no effect whatsoever.
An order of the Honourable Court setting aside the purported retirement of the claimant from the employment of the Defendant.

A declaration that the Claimant’s [sic] employment with the Abia State Universal Basic Education Board is still valid and subsisting.

An Order directing the Defendant [sic] to reinstate the Claimant [sic] to his post and or status as Head Master Special Class and for the payment of all his outstanding salaries and other entitlement from the month of November, 2016.
Any other further order or orders as the Honourable Court may deem fit to make in the circumstances.

The following questions were set down for the determination of the Court:

Whether the Defendant was right in his purported retirement of the claimant who has never attained the statutory retirement age of 60 years or the service years of 35 years. [sic]
Whether the Defendant in her retirement of the claimant was right in relying on the claimant’s date of birth wrongly captured instead of the Claimant’s [sic] date of birth contained in the Dossier filled by the Claimant [sic] as well as the Statutory Declaration of Age submitted by the Claimant [sic] during his employment in 2001.[sic]
Whether the purported retirement of the Claimant [sic], was unlawful and void ab-initio [sic], the Defendant having failed to follow the laid down procedure for retirement. [sic]
Whether the Defendant, who failed to communicate the Claimant of his purported retirement or serve him with a notice of the purported retirement can be said to have lawfully retired the Claimant on the 10^th of November, 2016. [sic]
Whether the Honourable Court can make an order setting aside the purported retirement of the Claimant by the Defendant. [sic]

The originating summons was accompanied with an affidavit, to which were annexed copies of instruments, exhibits and a written address. By a Motion on Notice dated 20^th December 2017 and filed 21^st December 2017, the defendant filed its memo of appearance, counter affidavit and written address in opposition to the suit. The claimant filed a Further Affidavit on the 16^th February 2018 accompanied with a written address. On the 11^th January 2018, the defendant’s counsel moved his Motion on Notice for extension of time to defend the suit by filing the necessary processes. The prayers contained in the motion were granted and the Memo Of Appearance, the Counter Affidavit and the Written Address filed in defence were deemed properly filed and served. The suit came up on the 20^th February 2018 for hearing. Counsel to the parties relied on their respective affidavits and adopted their individual written addresses. In addition, counsel to the claimant also relied on his further affidavit and also adopted the written address titled “Claimant’s Reply to the Defendant’s Preliminary Objection”. Thereafter, the matter was adjourned till 27^th February 2018 for judgment. The judgment was not ready at this date; hence, further adjournment till today the 2^nd March 2018.

Let me now carefully summarise the addresses filed by the parties through their respective counsel. I start with that of the claimant’s counsel. In the written address settled by I.B. UWON, counsel adopted the questions set out for the determination of the Court as earlier reproduced as the issues arising for the determination of the suit and argued them seriatim. I too, take them seriatim.

ISSUE 1:

Whether the Defendant was Right in Its Purported Retirement of the Claimant who has Never Attained the Statutory Retirement Age of 60 Years or the Service Years of 35 Years?

Arguing issue 1, the learned counsel submitted that the answer to the above question is in the negative. Counsel submitted further that the claimant was employed in 2001 vide a letter of appointment dated 23^rd April 2001 which is now Exhibit A and the claimant did his documentation as usual by submitting all the necessary documents, amongst which was the Statutory Declaration of Age, which is now Exhibit B, on which the claimant’s date of birth was stated as 11^th November 1959. Counsel submitted that consequently the defendant issued the claimant with a Staff Identification Card [ID Card], which is now Exhibit E. Counsel submitted that in accordance with the Abia State Public Service Rules [ASPSR], the retirement age is 60 or 35 years of pensionable service, whichever one is earlier. Counsel argued that arising from these, the claimant has not reached the 60 years retirement age nor the 35 years length of service and as such, not due for compulsory retirement. On the basis of the above submissions, counsel urged the Court to resolve Issue 1 in favour of the claimant and against the defendant. Counsel thereafter moved to issue 2.

ISSUE 2:

Whether the Defendant in Her Retirement of the Claimant was Right in Relying on the Claimant’s Date of Birth Wrongly Capture Instead of the Claimant’s Date of Birth Contained in the Dossier Filled by the Claimant as well as the Statutory Declaration of Age submitted by the Claimant During His Employment in 2001?

In arguing this issue, counsel urged the Court to answer the question in the negative. Counsel argued that the failure of the defendant to use the information contained in the dossier of the claimant as well as his statutory declaration of age with the defendant and the use of the date of birth erroneously filled in a form in 2001 is wrong. Counsel argued that the wrongness is shown when it is realized that the defendant issued the claimant with an ID Card stating the claimant’s date of birth as 1959 and correctly put the retirement date as 2019. Counsel submitted that the Pension Reform Act [PRA] Act has settled this issue in favour of the claimant by stating that the authentic age of retirement of an employee shall be that submitted on entering service or taking up employment. On the basis of the foregoing, the learned counsel urged the Court to resolve this issue in favour of the claimant and against the defendant.

ISSUE 3:

Whether the Purported Retirement of the Claimant, was Unlawful and Void Ab Initio, the Defendant Having Failed to Follow the Laid Down Procedure for Retirement?

In arguing this issue, the learned counsel to the claimant submitted that since the claimant’s employment is with statutory flavour, he could not be retired arbitrarily without following laid down procedures. Counsel submitted that Rule 02808 of the ASPSR specified the procedures to follow to lawfully retire an employee, and that the Supreme Court has held in the case of PHCN v. Offoelo (2012) 52 (Pt. 105) at 313 [the specific law report not mentioned] that, to force public servant into premature retirement is wrong and that failure of the employer to retire an officer properly would be declared null and void. Counsel submitted that it is obvious that the claimant, whose salary was suddenly stopped without recourse to procedure and without informing him of the reason for the stoppage until his solicitor served the defendant with pre-action notice when the defendant now wrote an undated letter to the solicitor, to which was attached the retirement notice of the claimant, was retired wrongly. Counsel cited PHCN v. Offoelo [supra] and Idufueko v. Pfizer (2014) 58 NSCQR (Pt. 1) 601 at 622-623 to the effect that the Supreme Court held that, this type of impunity could not be tolerated, and that unlawfulness arises in termination once the proper procedure was not followed. Counsel thereafter urged the Court to resolve this issue in favour of the claimant and against the defendant. Thereafter, counsel moved to issue 4.

ISSUE 4:

Whether the Defendant, who failed to communicate the Claimant of the purported retirement or serve him with a notice of the purported retirement can be said to have lawfully retired the Claimant on the 10^th of November, 2016?

Counsel submitted that, even though, the defendant belatedly, via Exhibit H, written in reaction to the pre-action notice, accused the claimant of serious misconduct under section 4 (iv) & (xx) of the ASPSR, the fact the defendant did not observe the rules of natural justice in dealing with this allegation by failing to give the claimant fair hearing makes the abrupt termination of the claimant unlawful. Counsel submitted that since the defendant failed to serve the claimant with retirement notice, it could not rely on section 25(1) of the Abia State Universal Basic Education Board Law [ASUBEB Law] to argue that this action is statute barred. Counsel argued further that, the attitude of the defendant in not serving the claimant retirement notice amounted to fraudulent concealment and evidence of intention to deprive the claimant his right of action under limitation law. Counsel cited the Supreme Court in PHCN v. Offoelo [supra] at 130-131 to the effect that, non-service of retirement notice makes the retirement void.

Counsel argued that it was very incongruous and against human nature that the claimant would deliberately write a date of birth that would make him retire earlier than the original date of birth submitted would have entitled him to, and that, what is normal would be for a person to alter his date of birth to elongate his service. Counsel urged the provisions of section 167 of the Evidence Act to the effect that Courts should take note of the natural course of events and human conduct. Counsel submitted that it is to checkmate alteration of age that section 4 of the PRA was enacted. Counsel later cited Omidiora v. FCSC (2008) ALL FWLR (Pt. 415) 1807 at 1819-1820 to the effect that once a dismissal is declared null and void, the claimant must be reinstated. Counsel finally urged the Court to resolve the issue in favour of the claimant and grant all the reliefs claimed. Thus, the address in support of the originating summons came to an end.

I now turn to the written address filed against the originating summons by the defendant. This address was settled by ENYINNAYA OKEZIE, ESQ. The learned counsel formulated 4 issues for the determination of the suit, to wit:

Whether the claimant’s pre-action notice dated 14^th July, 2007 is sufficient to sustain the present suit, same having a different cause of action from the one made out in this suit. [sic]
Whether the Claimant is right to have commenced this suit by an originating summons instead of a writ of summons as there are contentious facts that need oral evidence in this suit. [sic]
Whether this suit is statute barred having been brought outside the three months period stipulated both Section 2 (A) of both POPA and POPL; and Section 25(1) of the ASUBEB Law. [sic]
Whether this court has the jurisdiction to entertain this suit. [sic]

ISSUE 1:

Whether the Claimant’s Pre-Action Notice Dated 14^th July, 2017 is Sufficient to Sustain the Present Suit, Same Having a Different Cause of Action from the One Made Out in this Suit?

Counsel submitted that by virtue of section 25(2) of the ASUBEB Law, which prescribed that a pre-action notice of one month be served on the defendant before a suit could be lawfully commenced against it, the pre-action notice dated 14^th July 2017 would not sustain this action, as the cause of action indicated in the purported pre-action notice is different from the one indicated in the instant suit. Counsel cited some authorities on the meaning of cause of action. Counsel stated that in the pre-action notice, the cause of action was that the claimant’s date of birth was wrongly captured whereas, in the affidavit supporting the originating summons, the claimant changed by saying he mistakenly wrote the wrong date of birth. Counsel submitted that for this reason, the pre-action could not sustain this suit, as it was a notice for different suit; and that, as such, the action is incompetent. Thereafter, counsel moved to issue 2.

ISSUE 2:

Whether the Claimant is Right to have Commenced this Suit by an Originating Summons Instead of a Writ of Summons, as there are Contentious Facts that need Oral Evidence in this Suit?

Counsel argued that Order 3 of the National Industrial Court Rules, 2017 [NICN Rules] made it abundantly clear that, only actions relating to construction of constitution, statutes, documents and any other instrument relating to employment, labour and industrial relations that could be commenced by originating summons. Counsel argued that, this suit is not about the construction of any instrument but purely about contention on the date of birth of the claimant; and cited Fagbola v. Titilayo Plastic Industries Ltd (2005) 2 NWLR (Pt. 909) 1 CA and Noibi v. Fikolat (1987) 1 NWLR (Pt. 52) 619 SC, on the fact that once there are disputed facts, a suit should not be commenced by originating summons. Counsel also cited Adesanya v. Adewole (2006) 14 NWLR (Pt. 1000) 242 to the effect that once a mode is prescribed for doing a thing, that mode must be followed. Counsel thereafter urged the Court to hold that the commencement of this action by way of originating summons is wrong and therefore makes the action incompetent. Counsel thereafter moved to issue 3.

ISSUE 3:

Whether this Suit is Statute Barred having been Brought Outside the Three Months Period Stipulated both by Section 2(a) of both POPA and POPL; and Section 25(1) of the ASUBEB Law?

The learned counsel submitted that the Public Officers (Protection) Act [POPA] and the Public Officers (Protection) Law of Abia State [POPL] of Imo State both provide 3 months limitation periods for bringing actions against public officers; and that the ASUBEB Law also provided a three-month period of limitation to commence actions against public officers. Counsel argued that by Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1 at 33B 36A, the defendant is amongst those protected by the ASUBEB Law. Counsel argued that Exhibit H2 of the claimant dated 7^th September 2016 conveyed to the claimant that his appointment was terminated with effect from 11^th November 2016 at the attainment of 60 years retirement age; and that, by this, it is clear that the retirement of the claimant on 11^th November 2016 is the cause of action in this suit. Counsel submitted that since this suit was brought on 28^th September 2017, 10 months after the cause of action arose; limitation laws bar it. Counsel cited Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 547 at 568-569; Obiefuna v. Okoye (1961) 1 ALL NLR 387; Hassan v. Aliyu (2010) 7 12 SC 21 at 53; and Musa v. NIMR (2010) 11 NWLR (Pt. 1205) 271 at 290, B-E on this point. Thus, counsel ended arguments on issue 3 and moved to issue 4.

ISSUE 4:

Whether this Court has the Jurisdiction to Entertain this Suit?

In arguing this issue, counsel cited Rivers State Government of Nigeria & Ors. v. Specialist Consult (Swedish Group) (2005) 21 NSCQR 612 at 643, E-H on the conditions that must exist before a court could assume jurisdiction on a suit. Counsel submitted that since this suit was not instituted within three months next the cause of action, the condition precedent to its institution was not met; and thus, the Court is robbed of jurisdiction in the instant case. On this, counsel cited Musa v. N.I.M.R. & Anor. (2010) 11 NWLR (Pt. 1205) 271 at 291, A-C; Shell Petroleum Development Co. (Nig.) Ltd v. Isaih (2001) 11 NWLR (Pt. 723) 168; and Peenok Investment Ltd v. Hotel Presidential Ltd (1983) 4 NCLR 122. Counsel submitted on the basis of these authorities that this suit is statute barred and urged the Court to make an order of dismissal, being the only order the Court could make in the circumstance. Counsel cited Nigerian Ports Authority v. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 158.

I now move to the reply on points of law settled by the claimant’s counsel: I.B. UWON. Counsel submitted that there is no authority prescribing the contents and formats of pre-action notice. Counsel relied on Nigercare Development Co. Ltd v. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498 at 526-527, H-C and S.P.D.C.N Ltd v. X.M. Fed. Ltd (2006) 6 JNSC (PT. 22) 329 at 331; and Ports v. Beecham (2012) 52 Pt. 2 NSCQR 219 AT 241 on what constitute cause of action. Counsel submitted that the cause of action made out in the pre-action notice is in consonance with the one set out in the affidavit in support of the originating summons; and therefore, in accordance with Order 3, Rule 17(1)(a) of this Court. Counsel submitted that the contention on the inadequacy of the pre-action notice is a mere academic exercise. On this counsel cited NDP v. INEC (2012) 52 NSCQR 661 at 669 on the need to throw out the objection to the pre-action notice. Counsel thereafter urged the Court to resolve issue 1 of the defendant in its favour. Counsel thereafter moved to issue 2.

On issue 2 of the defendant, counsel to the claimant replied on points of law to the argument that this action ought not have been commenced by originating summons, counsel submitted that the case of the claimant is properly brought since it called for construction of documents and instruments in relation to the termination of the claimant’s employment. Counsel submitted that even if this suit was wrongly commenced by originating summons, the proper order to make is not one striking it out, but one converting it to one fought on pleadings by ordering the parties to file their pleadings.

Counsel argued further that this case did not raise issues of substantial dispute of facts as claimed by the other side but merely asked the Court to determine the lawfulness or otherwise of terminating the appointment of the claimant with regard to the regulations and specified mode of determining the employment. Counsel also submitted that even if there were conflicts in the affidavit evidence of the parties, these would not necessitate the calling of oral evidence as the Court could resolve these conflicts via available documents. Counsel cited Bob Manuel v. Briggs (1995) 7 NWLR (Pt. 409) 537 at 541 to the effect that, where conflicts in affidavit evidence could be resolved via documentary evidence at the disposal of the Court or on points of law, it is not necessary to call oral evidence. Counsel also cited Jev. v. Iyortom (2014) (Pt. 1428) [sic] 575 at 615 on this same point. Counsel submitted further that the mode of commencement of this action by way of originating summons is in accordance with the Supreme Court’s decision in Olleys v. Tunji (2013) ALL FWLR 625 at 666. On this note, counsel urged the Court to discountenance the arguments of counsel to the defendant that this suit was wrongly commenced by originating summons. Thereafter, counsel moved to issue 3 of the defendant.

On issue 3 of the defendant’s address, counsel submitted that the POPA, the POPL and the ASUBEB Law do not bar this action contrary to the assertion of the counsel to the defendant because, time started running against the claimant when he became aware that he had been retired; and that this was in July 2017 when the claimant’s counsel served on the defendant a pre-action notice, [exhibit G], prompting it to write Exhibit H. Counsel submitted that time began to run when the claimant’s counsel informed the claimant that in the reply to the pre-action notice, the defendant attached an undated Retirement Notice, exhibit H, purporting to retire the claimant from service. Counsel posed that how could the claimant be expected to commence an action against a retirement he was not aware of. Counsel submitted that the law is that time never runs against a plaintiff until when he becomes aware of the action of the defendant. Counsel relied on Jallco Ltd v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547; and PHCN v. Offoelo [supra] for this submission. Counsel, relying on A-G Rivers v. A-G Bayelsa (2012) 52 NSCQR 239 at 243, submitted that the POPA is inapplicable in a situation wherein the defendant acted outside the colour of his office and outside his statutory or constitutional duty. On the basis of the foregoing, counsel urged the Court to resolve this issue in favour of the claimant. Thereafter, counsel moved to the defendant’s issue 4. On this issue, counsel argued that it is clear from the submissions so far that the claimant has fulfilled all the conditions precedent to the institution of this action. At this stage, counsel brought the reply on points of law to an end and urged the Court to dismiss the PO of the defendant and determine the suit on its merits.

As could be seen, I have carefully summarized the addresses of counsel in respect of the suit. As is usual, when radical points are raised in a suit, which could put an end to such suit, it is pertinent to thrash out such issues first, before going on to consider the case on the merit. The defendant has raised three radical points of law, viz: (1) that, the suit is caught by the provisions of the POPA, POPL and ASUBEB Law, which all provide that once a suit is filed outside three months next the cause of action, it becomes statute barred; (2) that, the affidavit and the counter-affidavit filed for and against the action are in conflict, and as such, the action ought not to have been brought by originating summons; and (3) that, the pre-action notice issued is in dissonance with the action filed, and as such, the action has no pre-action notice on which it was anchored, and therefore incompetent.

Let me take the issue of limitation law first. In doing this, I preface my answer by quoting from a decision of this Court in Suit No. NICN/OW/51/2017: Awuzie v. Governor of Imo State & 3 Ors delivered on 6/02/2018, p. 10 wherein this Court held:

By section 6 of the 1999 Constitution, the legislative powers of a State of the Federation are vested in the House of Assembly of the State. It follows that it is the limitation laws enacted by the House of Assembly of Imo State that would be applicable to limit an action commenced in Imo State against the functionaries of Imo State or the creations of its statute: the Imo State University. To this extent, it follows that the POPA is totally inapplicable to the suit filed against the functionaries of Imo State and an institution created by Imo State House of Assembly.

By the reasoning contained in this authority, the POPA, which is a federal enactment, is inapplicable to a suit instituted against Abia State Universal Basic Education Board, a parastatal of the Abia State Government. Still relying on the same authority, at p. 10 [supra] wherein it was held:

However, the snag still remains in that there are two different Imo State limitation laws cited in the POs. There is section 2(a) the [POPLEN], as applicable in Imo State and section 22(2) of the ISUL. Between the two, which one is applicable? The law is settled that when one law makes general provisions and another makes very specific provisions, the one that makes specific provisions prevails. The POPL makes provisions applicable to all public institutions and functionaries in Imo State, while section 22(2) of the ISUL makes specific provisions regarding the limitation of actions against the Imo State University, its functionaries and officers.

I hold that it is only ASUBEB Law that is applicable to this action. The next thing is to determine whether section 25(1) of the ASUBEB Law actually bars the institution of this action. Counsel to the defendant claimed the limitation period should be reckoned from 11^th November 2016, when the retirement took effect, against the 28^th September 2017 that this action was commenced. The claimant’s counsel is of the view that the limitation period must be reckoned from the date the retirement notice was communicated to the claimant after it was received in his office and after the service of the pre-action notice on the defendant. This controversy can only be resolved by knowing the cause of action and when it arose. Is the cause of action the stoppage of the salary of the claimant or the termination of his appointment? The cause of action herein is the termination of the appointment of the claimant and not the stoppage of the salary. This much, counsel to the defendant admitted in paragraph 3.35 of the written address in support of the counter affidavit, when it was written, “It is clear my Lord that the cause of action in this suit is the retirement of the claimant from the employment of the Defendant on 11^th of November 2016”. Then, the next question is: when did the retirement or termination of appointment of the claimant take effect? There is an authority to the effect that a letter takes effect from the date it was received – see Eka v. Kuju (2013) LPELR-22124 (CA) 16, para. A, where it was held that: “It is trite that a letter becomes effective upon delivery”.

Was the notice of retirement terminating the appointment of the claimant served on him, if, when? Claimant had contended that he only got to know of the termination of his appointment through his solicitor to whom the letter was sent by attachment with the reply to the solicitor’s pre-action notice. There is no dispute that this letter was attached to the reply to the pre-action notice. The dispute is that the claimant had been served a copy earlier before this attachment. How is this conflict to be resolved? I take guidance in the Supreme Court’s decision in Nwosu v. Imo State Environmental Sanitation Authority & Ors. (1990) LPELR-2129 (SC) 32-33, paras. G-B, wherein it was held:

But I believe it is not only by calling oral evidence that such a conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be yardstick with which to assess oral testimony.

The instant case is trial by affidavits, wherein the affidavits of parties take the places of pleadings – Gbajabiamila v. CBN & Ors. (2014) LPELR-22756 (CA) 36-37, paras. E-D. There is no dispute that the reply to the pre-action notice by the defendant had a retirement notice attached to it as evidence of the termination of the appointment of the claimant. However, what is curious is that, there is no evidence of the when this retirement notice was served on the claimant. I take judicial notice that, in the ordinary course of official duties, once a letter or any document is served on any person, there would be an endorsement on another copy of the letter or document that the original copy was received by the addressee, with the name and the date of receipt clearly endorsed. There is always in existence evidence of service in whatever form. It is therefore against natural course of events that such an important letter like this would be served without evidence of its delivery whatsoever. It simply means the letter was never served on the claimant and that the first time he would see it is when his solicitor drew his attention to it. He who asserts the contrary has the duty to prove. It is the case of the defendant that the notice of retirement was served on the claimant: it is therefore its duty to provide the evidence; failing, which it would be deemed the letter was never served or brought to the notice of the claimant.

The puzzle becomes more so, when it is realized that the claimant deposed that he had all along continued to perform his duties [para. 12 of the affidavit in support]. This deposition is not countered by the defendant in their counter affidavit. It is therefore deemed admitted – see Adelaja & Ors. v. Alade & Anor. (1999) LPELR-109 (SC) 17, para. G. Could he have been served the notice of retirement and he still continued to go to work and performing his duties? Who was posted to take over from him or did he prevent that person from taking over? What did the defendant do when he kept coming to office? Or is it that the defendant is claiming ignorance about his still coming to office? These questions, which are unanswered, put a lie to the defence of the defendant that the notice of retirement was served on the claimant. A court of law is not bound to believe an improbable evidence simply because it was deposed to in an affidavit; so, this Court is not bound to believe in the improbable story that the retirement notice was served on the claimant before the one attached to the reply sent to his solicitor – Anzaku v. Gov., Nassarawa State (2005) 5 NWLR (Pt. 919) 448 at 502 paras. C – F; and Chukwu Construction Company Limited v. Uwechia (1999) LPELR-5508 (CA) 14, paras. A-C, where the Court of Appeal held that:

It is long settled that evidence in opposition which is conflicting, vague, uncertain and improbable will not dispel an inference as a matter of law but an inference will be dispelled as a matter of law when opposed by evidence which is clear and positive not open to doubt and contradictions.

The evidence of the defendant that it earlier served the notice of retirement on the claimant without evidence of the service is not only self-contradictory but also clearly improbable and gives rise to serious doubt as to whether the letter or notice was ever issued and served on the claimant. Curiously again, the reply to the pre-action notice [Exhibit G] did not contain a date. The necessary inference of law arising from this uncertain, vague, self-contradictory and improbable evidence is that the document was never served as deposed by the claimant. Since there is no dispute on the fact that this retirement notice was attached to the reaction of the defendant to the claimant’s solicitor’s pre-action notice, it follows that the evidence of the claimant that he only became aware of this letter when his counsel drew his attention to it, is probable and clearly unassailable; and I so hold.

However, I have observed that the claimant also did not give the exact date the retirement notice attached to the reply of the defendant to the pre-action notice was brought to his notice. The implication of the above is that there is no effective date from which the limitation law could be reckoned from. However, it needs be pointed out that if the date the pre-action notice was written – 14/07/17 – is taken as the starting point, and that is the earliest date, it would be observed that the action filed on 28/09/17 was filed within time. But that is even irrelevant in the law relating to how to calculate limitation period. The Court of Appeal has held in Akinsete & Ors. v. Kiladejo (2013) LPELR-20215 (CA) 22-23, paras. D-B that:

In the case of Savannah Bank Vs Pan Atlantic Shipping and Transport Agencies Ltd. (supra) at 259 F-H, Oputa, JSC stated inter alia as follows: “Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with limitation of statute to determine the precise date upon which the cause of action arose. Without the basic fact it will be impossible to compute the time. Thirdly since the defendant is the party relying on the defence of limitation the onus is on him to establish when the cause of action accrued to the plaintiff. It is not enough to plead a particular date for if that date is not admitted by any reply of the plaintiff to the defendant’s statement of defence, then there is nothing on which the necessary computation can be made. Fourthly, it is not permissible and it would be wrong for a court to compute time from a date pleaded in the statement of defence, not admitted in the reply and not proved by credible evidence.

From the above authority, it is clear that it is only on credible evidence, unopposed by the claimant that a court can rely on a date supplied by the defendant to anchor the computation of limitation period. There is no iota of evidence in this case to show exactly when the termination of appointment of the claimant was communicated to him, which is the effective date the cause of action arose. The defendant exhibited no endorsement copy evidencing the receipt of the retirement notice. The Counter-Affidavit of the defendant is silent or evasive on this. The inference is that the action is not statute barred and I so hold. Assuming that the position of law is not even as stated above, section 25(1) of the ASUBEB Law, which is impari materia with section 2(a) of the POPA, would not still bar the action, as there is serious allegations of acting without semblance of authority against the defendant. It is trite that the POPA, and in this case, the ASUBEB Law, only protects a public officer who acts without flagrant disregard of the law. I quote this Court in Suit No. NICN/ABJ/107: Gad Barminas v. Nigeria Police & 3 Ors. [Unreported ruling delivered on 19^th September 2014 by Court 1, Abuja Division] pp. 6 – 7 where it was held that:

[…] the issue of acting outside the lawful duties of the defendants or allegedly committing patent illegality has also been raised as bringing the action outside the web of the POPA. I must say that the law on this issue appeared to have been rested by the highest Court of the land. Wherever the issue of acting outside the toga of a public officer’s lawful authority is raised, the POPA cannot be urged to terminate the action in limine. The action must proceed to trial on the merits to determine this. The Supreme Court emphatically held in Hassan v. Aliyu & Ors. [2010] LPELR – 1357 [SC] pp. 36 – 37, paras. G – A:

“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act”.

Looking at the Statement of Facts which contains the facts relied on by the applicants for this NPO, one can safely deduce at paragraph 17 and reliefs 2 and 3 thereof, that the claimant raised the allegation that the Police has failed to comply with a legal duty to reinstate him after a verdict of discharge and acquittal by the Court of Appeal and it acted maliciously by allegedly wrongly setting the law against him. It is therefore clearly in issue that the defendants are purportedly acting without legal justification.

The claimant has given evidence that his appointment was terminated in total disregard of all relevant laws and without any toga of authority at all. This is an accusation of patent acts of illegality. Hence, when this type of allegation is made, the case must be heard on its merits to thrash out the issue of whether or not the allegation of crass illegality is proved. For this additional reason, I hold that this case falls within one of the exceptions to the applicability of the POPA, and by necessary implication, arising from the logic of impari materia of section 25(1) of the ASUBEB Law with section 2(a) of the POPA.

Let me now examine whether the case ought not to have been brought via originating summons. The defendant’s counsel has argued that because there are serious disputes of facts, the action ought to have been commenced by writ and pleadings. The only dispute of facts shown by the defendant’s counsel is that relating to the date of birth of the claimant, which is in serious dispute between the parties. But let me quickly observe that this dispute is misplaced because of failure of the defendant to appreciate the grouse of the claimant. The cause of action of the claimant is alleged illegal termination of appointment. In proving this, the claimant only needs to show three things: (1) that he was sacked, (2) that in sacking him, the defendant did not follow the proper procedure as laid down in the relevant laws; and (3) that, once failure to follow the proper procedure is established, the proper orders to make by the Court are reinstatement and payment of areas of salaries. In all these, the claimant need not prove that he made a mistake in filling the wrong date of birth or that the defendant captured the wrong date of birth. These are very much irrelevant to his case. It might well be that the filling of the wrong date of birth is the cause of action of the defendant in sacking the claimant: that is, the reason why the defendant sacked the claimant. That is understood. It is the consequence of the action of the defendant: that is, the sacking of the claimant that is the cause of action of the claimant; and in this, his main complaint is about the manner of the sacking. So, a distinction must be drawn between cause of action of the defendant and the cause of action of the claimant: they are not coterminous as shown above.

Flowing from this is that, there is no dispute as to the manner of sacking the claimant that would warrant trial by pleadings and oral evidence. It is only when the issue of the manner of sacking the claimant is settled, and if settled in favour of the defendant, that the issue of whether or not the claimant altered his date of birth would arise. And there are specific documents referred to by the claimant’s counsel which construction of their provisions would show whether or not the claimant had been indeed sacked in accordance with the laid down procedures and laws. It is my respectful view that this case is mainly about the construction of few provisions of two or three documents and/or statutes: the Abia State Public Service Rules, the Pension Reform Act, and the rules of natural justice, as encapsulated in section 36 of the 1999 Constitution. And it is my view too, that, any dispute that might exist on the evidence presented by both sides, which I have not seen, could be well catered for within the compass of the documentary evidence that abound.

When situations like these occur, there is no need to order pleadings – see Jev & Anor v. Iyortyom & Ors. (2014) LPELR-23000 (SC) 46-47, paras. F-B. I therefore hold that this action is properly commenced by originating summons.

I now come to the issue of incompetent pre-action notice. Counsel to the defendant argued that because of the fact that the claimant stated in the pre-action notice that his date of birth was wrongly captured and later in the suit that he was the one that inadvertently wrote the wrong date of birth, the present suit did not originate from the pre-action notice, as it was not countenanced in the pre-action notice and as such, no pre-action notice was issued on this suit; and therefore, this suit is incompetent having been filed without the requisite pre-action notice. Let me state first that the essence of pre-action notice, as the name implies, is to give notice of an intending suit to public authorities, so that they could initiate settlement out of court, if they wish. The pre-action notice is not the suit and it cannot forestall how the processes in the suit are to be couched or drafted or the correction of any error or misstatement made in drafting the pre-action notice in the proper suit. I think the important thing is, if the subject matter of the suit remains essentially the same with that of the pre-action notice, any pre-action notice issued would be good, notwithstanding variations in the details when a suit is eventually commenced – see International Tobacco Company Plc v. NAFDAC (2007) LPELR-8442 (CA) 21-22, paras. A-A.

The main grouse of the claimant in the pre-action notice is that his name was wrongly removed from the payroll, which was in accordance with the state of information at the disposal of the claimant as at when the pre-action notice was issued, in this suit, his grouse is that he was illegally retired, this was in accordance with the facts available at the stage the suit was filed. These two grouses are in essence, the two sides of the same coin and therefore one and the same. Thus, the grouse of claimant has remained constant in both the pre-action notice and the extant suit, notwithstanding the conciliatory language of the pre-action notice. On the whole, I hold that the pre-action notice issued properly anchored this suit. This issue is therefore resolved against the defendant and in favour of the claimant.

Having got to this juncture, it follows that there is no factor affecting the jurisdiction of the Court. The merits of the case must be examined. The defendant made allegations of serious misconducts bordering on criminality against the claimant. He was accused of having falsified his age and mutilated records and that the his file in the Open Registry developed wings, all in an attempt to elongate his service and that the defendant relied on the information contained in the claimant’s file in the Secret Registry to ascertain the true date of birth of the claimant, yet the defendant did not deem it fit to exhibit this document containing the alleged correct information from the Secret Registry. Even with regard to the issue of falsification of date of birth, the claimant had stated that he filled an initial form at resumption [the dossier], from which, by law, the defendant is supposed to take his correct date of birth. The claimant also stated that he submitted a Statutory Declaration of Age [Exhibit B, but actually marked Exhibit D], the CTC of which is exhibited; and gave the defendant notice to produce it [paras. 4 & 18 of affidavit in support]. The defendant who claimed that the date of birth presented by the claimant is altered and that the one on his ID Card [Exhibit E] is not genuine while the claimant’s file in the Open Registry had developed wings but that it relied on the one in the Secret Registry, failed woefully to exhibit it or its CTC in its counter affidavit. I have checked the CTC of the said Statutory Declaration of Age, though I found a space between 19 and 59, and a darker 5 in the 59; these raise a suspicion, but it is not sufficient evidence of mutilation or alteration, especially in view of the original being in public custody and could be consulted and CTC of it obtained. It is only by comparison of the two that evidence of mutilation and alteration would be brought out clearly. It should be noted that this is an allegation of crime, which must be proved beyond reasonable doubt in civil causes – see Anazodo v. Audu & Ors. (1999) LPELR-6770 (CA) 17-18, paras. G-A. And I wish to point out that CTC is an authentic means of tendering public document. The defendant who in effect alleged that this CTC is not genuine and admitted having the authentic one in its sanctuary, is, by common sense, expected to exhibit it to put a lie to the claim of the claimant or collect another CTC from the High/Chief Magistrate’s Court Registry, Okigwe and exhibit it to show that the one presented by the claimant is fake. It has failed to do either of these; and any doubt that that exists as a result, must be resolved in favour of the claimant – see Isiaka v. The State (2011) LPELR-8833 (CA) 14, paras. D-F. The legal implication of this is that the evidence contained therein is unfavourable to it. I have even said this issue might not really be relevant in the circumstance of this case where the issue is whether or not the claimant was properly retired. The defendant too had not said anything about the legal contention that the only date of birth that could be legally used on issues connected with retirement is the one contained in the form he filled at resumption of duty. The provisions of section (3)4 of the Pensions Reform Act 2004 [No. 2] which enjoined an employer to use this date of birth in issues connected with retirement was not controverted, which shows the illegality of the defendant’s action in terminating the appointment of the claimant or more still, that the proper procedure was not followed in terminating his appointment.

Now, that is not even the issue. It is abundantly clear that the defendant did not depose to the fact that the claimant was issued any query to explain why disciplinary action should not be taken against him for acts considered to be serious misconducts bordering on criminality. There is also no deposition to the fact that the procedure laid down before a staff could be disengaged on retirement was followed.

Rule 02808 of the Abia State Public Service Rules provides mandatory steps government must follow before officers could be legally retired. Government must:

Ensure that the record of each is up-to-date;
Forward in the month of January every year the names of officers due to retire during the year to the Bureau of Establishment Training and Pensions;
Ensure that pension form is given to each retiring officer in good time to enable him complete and submit to the Department of Administration of his Ministry at least six months before he is due to proceed on retirement;
Ensure that completed pension form, together with, an up-to-date and certified record of service and a statement of the officer’s indebtedness to Government; are forwarded to the Bureau of Establishment, Training, Pensions at least three months before the officer is due to retire.

These are the rules governing retirement from service in Abia State. These pre-conditions are cumulative and not in the alternative. I cannot find anywhere in the depositions of the defendant where it stated that it complied with these pre-conditions. If these pre-conditions had been complied with, especially, conditions (i), (iii) & (iv), all the arguments on falsification of date of birth would not have arisen. This would have been discovered and ironed out before the time the claimant would have been due for retirement. And the claimant would have been aware beforehand his due date of retirement or would not have been able to perpetrate and maintain any fraud (if there is) with regard to his date of birth or pull a fast one on the defendant. In fact, it is to obviate this kind of situation that these provisions were made in the Abia State Public Service Rules and the Pension Reform Act. It is has been settled that the cause of action herein is retirement without following procedure and the claimant has shown that Rule 02808 of the Abia State Public Service Rules, section 3(4) of the Pension Reform Act and the rules of natural justice were flagrantly breached in retiring him. It simply meant the procedure to retire public officer in Abia State was not followed in retiring the claimant: period! I have earlier found that the defendant did not serve the claimant with the notice of retirement as envisaged by law up till the present moment. This letter is supposed to be served on him personally and not by proxy. It is also clear that the claimant who was accused of serious misconducts bordering on crimes [falsification of date of birth and mutilation of records] was not, at any time, called upon to explain himself before the termination. In Nnadi v. National Ear Care Centre & Anor (2014) LPELR-22910 (CA) 23-24, paras. C-C, the Court of Appeal held that:

I do not think that in an employment with statutory flavour, a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by the 1^st respondent in this case, in complete disregard of the procedures stipulated in the conditions of service governing the contract of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously guarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice (usually, one month) or salary in lieu of notice. To remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilize the security of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society. This, of course, does not include tenure of service in political appointments.

In Arinze v. First Bank of Nigeria Ltd (2004) LPELR-551 (SC) 11, paras. A-E, the Supreme Court held and I quote:

It is not necessary, nor is it a requirement under section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a court of law where the accusation against the employee is gross misconduct bordering on criminality…to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him.

The cumulative effect of all these breaches as shown above is that, the proper procedure was not followed in terminating the appointment of the claimant. The purported retirement of the claimant was therefore unlawful and illegal and is hereby declared null and void and of no effect whatsoever. Arising from these, the claimant is still in service, and by law entitled to be reinstated with full payment of his areas of salaries – see Abdulraheem & Ors. v. Olufeagba & Ors. (2006) LPELR-11817 (CA) 92, paras. D-E; and Maliki v. Michael Imodu Institute for Labour Studies (2008) LPELR-8467 (CA) 52, paras. B-D, where the Court of Appeal held, and I quote:

Where, however, an appointment governed by statute is terminated unlawfully, for example, because the employee was not afforded fair hearing, a court will not hesitate to void such a purported act of termination. In deed, the court, in such a situation, will not only vacate the termination, it will equally order the employer to reinstate him/her.

In the final event, reliefs (i), (ii), (iii) & (iv), claimed in the originating summons, are granted. The claimant must be reinstated and paid his areas of salaries accordingly within 60 days next. After the 60-day grace, his arrears of salaries would attract 10% annual interest rate till the date the areas are paid.

I make no order as to cost.

…………………………..

Hon. Justice O.O. Arowosegbe

Presiding JUDGE

Owerri Division, National Industrial Court of Nigeria