MR. ISAAC WAKEMA V. CIVIL SERVICE COMMISSION, TARABA STATE & ANOR
(2012)LCN/5503(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/YL/1/2010
RATIO
JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED
We do not agree with this submission by the appellant rather we agree with the Respondent that this statute of limitation Borders on jurisdiction of a court to try a case and since jurisdiction is so fundamental that it can be raised any time either at court of trial or in this court whether it was pleaded or not. The two cases cited by the appellant namely AGRIC DEVELOPMENT CORPORATED VS OKED (2004) 11 NWLR. (PT.84) P.? ratio 6 as well as case of EBENOGWU vs ONYEMAOBIN (2008) 2 NWLR (pt.1074) P.401 at ratio ARE BOTH DISTINGUISHED AND NOT APPLICABLE to this appeal. PER ABUBAKAR ALKALI ABBA, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
MR. ISAAC WAKEMA – Appellant(s)
AND
1. CIVIL SERVICE COMMISSION, TARABA STATE
2. ATTORNEY GENERAL OF TARABA STATE – Respondent(s)
ABUBAKAR ALKALI ABBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice M. A. Danjuma (J) (as he then was) sitting in the Taraba State High Court of Justice, holden at Jalingo delivered on 1st June, 2010.
The Appellant/plaintiff claim against Defendant/Respondent is for the following:-
(1) A declaration that the plaintiff was on the record up to the time of his retirement on 28th February,2008, as Auditor-General Local Governments, Taraba State.
(2) In the alternative to No. (i) above, A declaration that the purported removal of the plaintiff from office as the Auditor-General Local Governments, Taraba State by oral announcement through radio was altogether irregular, illegal, null and void as violating the plaintiffs fundamental human right to fair hearing under Section 36 of the 1999 Constitution and contrary to the Rules of the Taraba State Civil Service Commission.
(3) An Order that the plaintiff’s Retirement Benefits be computed as an Auditor-General under the Taraba State Political and Public Office Holders (Remuneration and other Benefits) Law No.5, 2000.
(4) The cost of this action.
(5) Further or better reliefs.
The appellant filed 6 grounds of appeal and formulated 3 issues for determination. The respondent adopted and formulated the same 3 issues.
The same 3 issues are raised by both the Appellant and respondent as follows:
(1) Whether the trial Court was right when it held that the Appellant’s appointment is a political appointment and he can therefore be removed at the whims and pleasure of the appointor without the benefits of the rules of the fair hearing or Notice (Grounds 1, 3 and 4) and in conformity with any law.
Issue 2
(2) Whether the Governor of Taraba State could terminate the appointment of the Appellant without any reason or justification by virtue of the Public Officers (Special Provisions) Act No. 17 of 1990.
Issue 3
(3) Whether the action of the Appellant is statute barred by virtue of Section 2(a) Public Officers Protection Law 1990 (Ground 2).
I would first consider the 3rd issue namely whether the action or claim by the appellant/Plaintiff against the respondent/defendants is statute barred by virtue of Section 2(a) Public Officers Protection Law 1990 (Ground 2).
If this claim of appellant/Plaintiff against the Respondent/defendants is statute barred then the Lower Court has no jurisdiction to try it because the Plaintiff/appellant has lost his right of action as he has slept on his right. The trial court fully and correctly determined the effect of statute of limitation namely Section 2 (a) of the Public Officers (Protection) Law Cap 115 Laws of Taraba State 1997. At page 107 line 6 to line 27 and at page 108 line 1 and 2 of the (Judgment) record of proceedings where the trial Judge correctly summarized and resolved the issue of the claim of plaintiff/appellant as been statute barred because the action or claim was instituted or filed not within 3 months but after 4 years 6 months 13 days after he was removed from office of Auditor-General of Local Governments.
The trial Judge summarized thus;
“The defence witness said the plaintiff was removed from office. This supports the plaintiffs complaint rightly relied upon by the defence. The removal took place over 4 years before this present action, It is a period put aside the limitation law applicable. The right, if any, cannot be enforced see the case of OFFICER IN-CHARGE GOMBI PRISON GPG VS GUDU (2010) 2 NWLR Part 117 pages 149 where a delay for a period of one (1) year (10) ten months was held to have made the action statute barred and it was held that EQUITY DOES NOT AID THE INDOLENT BUT THE VIGILANT (2) THAT THE PLAINTIFF SLEPT OVER HIS RIGHT.”
The Hon.Trial Judge continued in line 23 page 107 and said;
“Exhibit D, being a solicitors letter complaining about the plaintiffs right and the need to retire as Auditor-General and not as Director of Audit is dated 15th May 2008 a period of 4 years 6 months 13 days after he has left office. In the said Exhibit D1 plaintiff said he heard the announcement about his retirement or removal on 4th November, 2003 that is to say after he had been retried or relieved of his office and handed over on 3rd November 2008. The suit was instituted on 23/6/2008.”
The Hon. Trial Judge listed 6 reasons why he dismissed plaintiff/Appellant claim and the No.6 reason is that the action is statute barred and he said;
“The action is also statute barred and ought not to have been brought to the court.”
The Appellant under this issue 3; submitted that the statute of limitation i.e. Section 2(a) Public Officers Protection law does not cover an action for breach of contract. Appellant cited wrongly the case of Ibrahim vs JSC (1998) 14 NWLR (part 584) page 20 at ration. This case is misapplied and is not relevant to the facts and circumstances of this case where plaintiff/Appellant is claiming his right (wrongly or rightly) as a retiring civil servant who served for 35 years. We agree with the respondents as well with the trial Judge that the limitation act or Section 2(a) of the Public Officers protection Law is applicable and that this action is statute barred.
Appellant also submitted that his action is not statute barred because Section 2(a) was not pleaded by the defendant/respondent and that since it was NOT pleaded during the trial but only raised at the address stage during the trial the respondents cannot benefit from this provision. We do not agree with this submission by the appellant rather we agree with the Respondent that this statute of limitation Borders on jurisdiction of a court to try a case and since jurisdiction is so fundamental that it can be raised any time either at court of trial or in this court whether it was pleaded or not. The two cases cited by the appellant namely AGRIC DEVELOPMENT CORPORATED VS OKED (2004) 11 NWLR. (PT.84) P.? ratio 6 as well as case of EBENOGWU vs ONYEMAOBIN (2008) 2 NWLR (pt.1074) P.401 at ratio ARE BOTH DISTINGUISHED AND NOT APPLICABLE to this appeal. The appellant also relied on Constitution and other statute to support his claim as a retiring civil servant.
The more appropriate case is the case of officer in-charge Gombi prison Gombi GPG Vs GUDU (supra) cited by the trial Judge in his Judgment.
For the reasons given we resolve issue 3 in favour of the respondents.
We hold that Appellant has lost his right of action and since he has not been refused his retirement benefits he may sort out with relevant authorities without going to court.
Though 3rd issue is enough in disposing this appeal. We think the remaining issues (1) and (2) can be reformulated into one issue “whether Appellant proved his claim to deserve the declarations that he sought”. The 6th omnibus ground of appeal covers these 2 issues summarized into one issue above.
The 6th omnibus ground of appeal has no particulars and states thus;
“The Judgment of the Lower Court is against the weight of evidence.”
The summary of the Evidence by the trial Judge at page 108 of the record of the proceedings justify and fully support his reason for his dismissing the action. His Lordships summarised the evidence thus:-
“From the totality of the evidence led and in view of the analysis above I hold that the plaintiff has not proved his case as the manner of removal of the plaintiff has not been impugned.
(2) The office from whence he plaintiff was removed or retired is disputed by (him) Plaintiff’
(3) That he voluntarily retired not proved
(4) The office from where he voluntarily retired not proved
(5) plaintiff has not proved his entitlements as claimed”. End of the summary of the trial Judge.
We agree with the above 5 findings of the trial Judge and also agree that because of these reasons the plaintiff failed to prove his claim and that the Hon, Trial Judge was right in dismissing this claim, We also dismiss this claim of appellant/Plaintiff and we agree with the respondent that this Appeal has no merit at all and DISMISS it and confirm and affirm the Judgment of the Hon. Justice M. A. Danjuma (now Justice of the Court of Appeal) which said Judgment was delivered on 1st June, 2010 sitting at Jalingo, Taraba State High Court of Justice.
Appeal Dismissed with (N30,000.00) Thirty Thousand Naira cost for the respondent against the Appellant.
Appeal Dismissed.
M. B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother A. A. Alkali (JCA). I have nothing useful to add thereto.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
Appearances
P. S. Agabus Esq.For Appellant
AND
J. H. Gimba Esq.For Respondent
