MR M. A. D. UKIRI V. FEDERAL CIVIL SERVICE COMMISSION & ANOR (2010)

MR M. A. D. UKIRI V. FEDERAL CIVIL SERVICE COMMISSION & ANOR

(2010)LCN/3698(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of April, 2010

CA/A/147/08

RATIO

WORDS AND PHRASES: MEANING OF A CAUSE OF ACTION

What then is a cause of action?

in P. N. Udoh Trading Company Limited Vs Abere (2001) 11 NWLR Part 723 Page 114 at 129 it was stated as follows:-

“Cause of action had been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for remedy. It includes all things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed.”

See Also – Savanah Bank of Nigeria Limited Vs Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR Part 49. PER JIMI OLUKAYODE BADA, J.C.A.

JUDGMENT: EFFECT OF A TRIAL BASED ON PLEADINGS ON THE JUDGMENT

In Unical Vs Essien (1996) 12 SCNJ Page 304 at 306. It was held among others that :-

“It is a cardinal principle of our Jurisprudence that where a trial is by pleadings the Judgment of the court must be based on the pleadings. It is not the business of the court to make a case for the parties different from the case set up by them in their pleadings.”

See also the following cases:-

– Okweiiminor Vs Gbakeji (2008) 5 NWLR Part 1079 Page 172

– Adeosun Vs Babalola (1972) 5 S.C. Page 292

– Kuti Vs Jibowu (1972) 6 S.C. Page 147. PER JIMI OLUKAYODE BADA, J.C.A.

ACTION: STATUTE BARRED ACTION; HOW IS A CAUSE OF ACTION DETERMINED IF IT IS STATUTE BARRED

In Adekoya Vs Federal Housing Authority ( Supra) TOBI J.S.C held thus:-

“A cause of action is said to be statute barred if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Act or Law has elapsed. Limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the Writ of Summons was filed. See Egbe Vs the Hon Justice Adefarasin (Supra).

In order to determine whether an action is statute barred or not, the court must be involved in the exercise of calculation of years, months and days to the minutest detail.

It is really an arithmetic exercise which needs a most accurate answer. Using the limitation period in the enabling statute (in this case Section 8 of the Limitation Law of Lagos State 1973) as the baseline, the Judge then works out when the cause of action arose and when the plaintiff actually instituted the action. If in the course of his calculation, there is a plus on the baseline year, then the action is statute barred. But if there is a minus, then the action is competent. PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBADE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

MR M. A. D. UKIRI – Appellant(s)

AND

1. FEDERAL CIVIL SERVICE COMMISSION

2. THE ACCOUNTANT GENERAL OF THE FEDERATION – Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court sitting at Abuja in Suit No-FHC/ABJ/563/05 which was delivered on 20th day of February, 2008.

Briefly the facts of the case are that the appellant as plaintiff commenced an action at the lower Court in which he claimed against the Respondents the following reliefs:-

“(a) A declaration that the verbal directives given by the Defendants that the plaintiff be suspended and/or stopped from the exercise of his duties as a Deputy Director and the actual suspension and/or stoppage from duty without pay since September 2003, is irregular illegal null and void.

(b) A declaration that the directives given by the Defendants that me plaintiff assume duty as Assistant Chief Accountant in grade level 13 is irregular, illegal, null and void.

(c) An order directing the Defendants to recall the plaintiff as a Deputy Director without any prejudice to his rights and privileges.

(d) An order directing the Defendants to pay all the arrears of his salary and entitlements forthwith.”

Upon the service of the Writ of summons and the Statement of Claim on the Respondents, the first Respondent entered a conditional appearance (See page 19 of the records). The second Respondent, the Office of the Accountant General of the Federation did not enter appearance at all.

The 2nd Respondent in effect did not contest and/or defend this case at all.

At the conclusion of hearing, the learned trial Judge in a considered Judgment held that the Appellant’s case was statute barred. The Appellant dissatisfied with the said Judgment now appealed to this court.

The Learned Counsel for the Appellant formulated two issues for determination as follows:-

“(1) Whether the Public Officer’s Protection Act can avail a public officer who acted outside scope of his Public duty

(2) Whether the Appellant is not entitled to Judgment given that his evidence is unchallenged and uncontroverted.”

The learned counsel for the Respondents also formulated three issues for determination set out as follows:-

“(1) Whether the Respondents are Public Officers within the meaning of Public Officers Protection Act Cap 379 laws of the Federation of Nigeria 1990.

(2) Whether the 1st Respondent having the constitutional powers to appoint, discipline and promote can validly delegate some of its powers to a Ministry, Department and/or Agencies of the Federal Government.

(3) Whether this Honourable Court has been divested of Jurisdiction and competence in respect hereof in the light of the fact that the Appellant commenced this case outside the three months period preserved by law.”

At the hearing of this appeal Learned Counsel for the Appellant referred to the Appellant’s Brief of argument filed on 18/6/2009 and the Reply brief of argument dated 7/10/2009 and filed on 8/10/2009. He adopted the two briefs of argument in urging that the appeal be allowed.

On the other hand, the Learned Counsel for the Respondents referred to the Respondents’ brief of argument deemed filed on 5/10/2009. He adopted the said brief in urging that the appeal be dismissed. He also argued that, the reply brief of argument of the Appellant does not relate to any part of the Grounds of Appeal and he urged that the said Appellant’s reply brief should be discountenanced.

I have carefully examined the issues formulated for determination on behalf of the parties in this Appeal and it is my view that Issue No 3 formulated on behalf of the Respondents is the fulcrum upon which this Appeal rotates and it is capable of determining this appeal. Therefore I adopt the said issue as issue for determination of this appeal.

The issue is set out as follows:-

“Whether this Honourable Court has been divested and jurisdiction and competence in respect hereof in the light of the fact that, the Appellant commenced this case outside the three months prescribed by the law.”

The Learned Counsel for the Appellant in his own submission stated that the Learned trial Judge was wrong to have held that the cause of action arose in May 2004.

He referred to Exhibit ‘G’ and submitted that the said Exhibit ‘G’ was not conclusive, as it indicated that the matter of reversal to GL 13 was still pending and depended on the final determination of the source of the offer of temporary appointment.

He referred to the following cases:-

Ikire Vs Edierok (2001) 18 NWLR Part 745 Page 466 at 472:

Unical v. Essien (1996) 12 S.C.N.J. Page 304 at 306.

Okwejimnor v Gbakeji (2008) All FWLR Part 409 at 405 at 447 Paragraph C to D.

Okere v. Amadi (2005) All F.W.L.R. part 267 page 1925 at 1934 paragraph G – H.

Habib Nig Ltd v. Nashtex International Nig Ltd (2006) All FWLR Part 326 page 311 at 329 Paragraph A – C.

It was submitted on behalf of the Appellant that the learned trial judge erred in law, when the placed reliance on Exhibit ‘G’ because that was not the case of the 1st Respondent.

Learned counsel for the Appellant also submitted that assuming without conceding that the Appellant filed this case outside the statutory period, the public officers protection act will not avail the Respondent because the whole action taken against the Appellant was done by the 2nd Respondent and outside its jurisdiction and therefore out of malice.

He referred to the case of:- Offoboche v. Ogoja L. G. (2001) 16 NWLR Part 739 page 458 at 485 paragraphs A – D.

On the other hand, the Learned counsel for the Respondent submitted that it is the law that commencement of an action against a public officer within the contemplation of the Public Officers Protection Law must be done within 3 months from the period, the cause of action arose.

He referred to Section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990.Adekoya v. Federal Housing Authority (2008) 4 S.C. Page 181

Onadeko v. U.B.N. Plc (2006) All FWLR Part 301 page 1872 at 1876.

He also submitted that what the court will do is to take a cursory look at the date when the writ of summons was filed along with the statement of claim and juxtapose same with the date the cause of action arose. And by this the court would easily determine whether the case was instituted within the period prescribed by law or not.

He contented that the Appellant commenced this case on the 1st of November, 2005 as shown on the Writ of Summons. He also referred to paragraphs 8 and 11 of the Statement of Claim.

He submitted that the cause of action arose on the day the Respondents communicated Appellant’s demotion from Grade Level 16 to Grade Level 13 and that the cause of Action arose in September 2003. But that the plaintiff commenced this case on the 1st of November, 2005, i.e. two years after the accrual of cause of action.

The Learned Counsel for the Respondents submitted that where the limitation of time is imposed by a statute, unless the said statue makes provision for extention of time, the courts cannot extend it.

He referred to the following cases:-

– Akinnuoye Vs Military Administrator Ondo State (1997) 1 NWLR Part 483 Page 564 at 566-567.

– Adeosun Vs Jubesub (2001) 14 W.R.N. Page 106.

– Yusuf Vs Egbe (1987) NWLR Part 56 Page 34.

– Eboigbe Vs NNPC (1994) 5 NWLR Part 347 Page 349 at 659.

He finally urged that this appeal should be dismissed. Section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 provides thus:-

“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or 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 act, neglect, or default complained of or in case of a continuance of damage or injury, within three months next after the ceasing thereof:

Provided that if the action, prosecution or proceedings be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison”.

Flowing from the above quoted Section of the law is the fact that an action commenced after the expiration of the period stipulated is not maintainable, consequently, where 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 Public Officers Protection Act for instituting such as action has elapsed. See- Ekeogu Vs Aliri (1991) 3 NWLR Part 179 Page 258.

The pertinent question at this juncture is:- Whether the Plaintiff/Appellant’s suit was caught by the Public Officers Protection Act?.

It is instructive to look at paragraphs 8 and 11 of the Statement of Claim.

The paragraphs are set out as follows:-

“(8) Sometime in September 2003, the Director Administration in the 2nd Defendant’s Office, invited the plaintiff and verbally instructed him to stop reporting to his office pending the determination of an allegation of forgery suspected to have occurred in the 1st Defendant’s Office. And that the Commissioner in charge of Delta State, Bayelsa State and Rivers State with the 1st Defendant wrote and instructed her to do so.

(11) On or about September 2005, the Plaintiff received a letter dated July 5th, 2005 from the Defendants directing his postings to the 2nd Defendant’s office as an Assistant Chief Accountant, a position that he held before his new appointment. And the plaintiff quickly wrote to the 2nd Defendant on the consequences of such a humiliating demotion without any reason or justification.”

At the hearing the Plaintiff/Appellant testified in line with his pleadings. In the course of his examination in chief, the plaintiff stated that in May 2004, he was given a letter which instructed him to report to the Attorney General of the Federation’s Office as Assistant Chief Accountant. The letter was admitted in evidence as Exhibit ‘G’ (See Page 42 of the Record of Appeal).

The said letter Exhibit ‘G’ is reproduced below for ease of reference.

Office of the Accountant-General of the Federation,

Federal Ministry of Finance,

Administration & Supplies,

Garki, Abuja.

Ref No-A17837/1/CA/(Disc)

Date: 7th May 2004.

Mr D.M. Ukiri ACA,

Ufs: Director Admin & Supply,

OAGF,

Abuja.

Re-Stoppage of Salaries

Letter of Recall

(1) I am directed to refer to our letter Ref No A17837/Vol 17/22 of 24th February, 2004 which directed the stoppage of your salaries and to recall you to the OAGF Headquarters as an Assistant Chief Accountant SGL 13.

(2) Accordingly, the embargo placed on your salary with effect from September 2003, is hereby lifted pending the final determination of the source of the offer of temporary appointment letter Ref No FC 5300/C.9288/12 of 16th June 2003 by the Federal Civil Service Commission.

(3) You are to acknowledge receipt of this letter in the copy attached please

SIGNED

M. A. Ogunnusi

CA (Disc)

For: ‘Accountant General of the Federation’

The above letter was received by the Plaintiff/Appellant on 17/5/2004.

The Defendants/Respondents filed their statement of Defence with the leave of the lower court granted on 25/4/2007 but they did not call any evidence. The Learned trial Judge relied on the above letter i.e. Exhibit ‘G’ in coming to the conclusion that the Plaintiff/Appellant became aware of his demotion to the position of Assistant Chief Accountant salary Grade level 13 in May 2004. He stated that the cause of action arose in May 2004. The learned trial Judge stated that the letter of 5th July, 2005 (referred to in paragraph 11 of the Statement of Claim) which the Plaintiff/Appellant claimed he received in September 2005 cannot extend the date the cause of action arose.

The plaintiff commenced the suit at the lower court on 1/11/2005.

In cases of this nature, especially when dealing with statute of limitation, the time will start to run as from the date the cause of action arose.

See – Ikine Vs Edieroke (Supra).

What then is a cause of action?

in P. N. Udoh Trading Company Limited Vs Abere (2001) 11 NWLR Part 723 Page 114 at 129 it was stated as follows:-

See Also – Savanah Bank of Nigeria Limited Vs Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR Part 49.

A perusal of Exhibit ‘G’ relied upon by the lower court when read as a whole revealed that, the said Exhibit ‘G’ was not conclusive as it indicated that the matter was still pending as at the time the letter was written. Furthermore as at that time the cause of action had not crystallized because Exhibit ‘G’ does not wear the toga of finality. Anything could still have happened after the letter was written either to restore the Appellant back to Grade Level 16 or even further down grade him, or dismiss him outright.

The next letter received by the Appellant from the Respondent was Exhibit ‘M’, that is, the posting instruction dated 6/7/2005 which the appellant testified that he received on 25th September, 2005 and which evidence was not controverted.

In my view, it was Exhibit ‘M’ that placed the Appellant on his toes in view of the firm tone of the letter.

In respect of Exhibit ‘G’, it is my view that the damage or demotion of the Appellant was to continue pending the final determination of the source of the offer of temporary appointment letter.

The ‘final determination’ never came and there was no evidence from the Respondents at the trial about it. The averment that the case of the Appellant before the lower court was statute barred could not be supported by tangible evidence at the trial.

Furthermore, it was not the case of the Respondents that Exhibit ‘G’ brought about the cause of action. Their contention that the cause of action in this case happened in September 2003 was not supported by evidence.

In Unical Vs Essien (1996) 12 SCNJ Page 304 at 306. It was held among others that :-