MR. ONU AGHA UDUMA V. ATTORNEY-GENERAL OF EBONYI STATE & ORS
(2013)LCN/6216(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2013
CA/E/237/2011
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. ONU AGHA UDUMA – Appellant(s)
AND
1. ATTORNEY-GENERAL OF EBONYI STATE
2. CIVIL SERVICE COMMISSION, EBONYI STATE
3. MINISTRY OF AGRICULTURE AND NATURAL RESOURCES, EBONYI STATE – Respondent(s)
RATIO
DISTINCTION BETWEEN SUBSTANTIVE LAW AND PROCEDURAL LAW
The learned Justice of the Supreme Court (Oguntade JSC) recognized that sometime the distinction between substantive law and procedural or adjectival law could be thin perhaps difficult, thus at page 274 he adopted the test laid down by ONU JSC in the case of Atolagbe v. Awuni (supra) at page 575 when he held thus: “It is pertinent at this juncture to point out that the distinction between substantive law and procedural law can be quite difficult at times. Broadly speaking however, procedural or adjectival law relates to practice and procedure, that it rules according to which substantive law is administered. It prescribed the method for enforcement of rights as well as the enforcement of obligation or duties. On the other hand. Substantive law is concerned with the creation, definition, limitation of obligation. See Gafari v. Johnson (1986) 5 NWLR (Pt.39) 66 at 71”. In the Chigbu v. Tonimas case (supra) Oguntade JSC accepted that procedural law or adjectival law including rules of court normally fixes time for doing an act or the taking of a step in the proceedings and did not hesitate to hold that the Limitation Edict of 1994 of Imo State is a procedural Law and being such a procedural law, it operates retrospectively.See also Ifezua v. Mbadugba (1984) 5 S.C. 79 at 82 per Obaseki JSC. The supporting pronouncement of S.M.A. Belgore JSC was more emphatic on the Issue of Limitation Law being a procedural law. At page 276 of the report (4 S.C.N.J.) the learned jurist held thus: “The Limitation Law is certainly procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statutes on this all important subject must be read as a whole …….” PER OWOADE, J.C.A.
TIME LIMITS FOR ACTION AGAINST THE STATE AND PUBLIC AUTHORITIES AND OFFICES
Section 42 of the same law provides for time limits for action against the State and Public authorities and offices as follows:-“42. Notwithstanding anything contained in any other enactment or rule of law to the contrary all actions to which this law applies howsoever arising against the state or against any State Public authority or officer thereof or any person acting in the stead of such Public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual”. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of B.A.N. Ogbu J, delivered in the Abakaliki Judicial Division of the High Court of Ebonyi State on 29th day of March 2001 in Suit No. HAB/27/2010.
On 18th day of May 2010, the Appellant as Plaintiff filed a writ of summons accompanied by a statement of claim against the Respondents.
Paragraph 34 of the Appellant’s statement of claim is as follows:-
34. Whereof the Plaintiff claims against the defendants jointly and severally as follows:-
(a) A Declaration that the letter No. EBS/CSC/09/002/1/248 headed “Dismissal of Mr. O.A. Uduma, for serious Acts of Misconduct” dated 20th May 2009 and signed by the Permanent Secretary/Secretary Ebonyi State Civil Service Commission which purports to dismiss/terminate the appointment of the Plaintiff as Chief Accountant in the Ebonyi State Civil Service is null and void, ineffective in law to terminate the appointment.
(b) A Declaration that the purported termination of the Plaintiff as Chief Accountant was in complete violation of his fundamental Human Right of fair hearing as provided for in Section 36 of the 1999 constitution.
(c) A Declaration that the purported termination of the Plaintiff’s appointment as Chief Accountant was in complete violation of the contract agreement entered into between the plaintiff and the Civil Service Commission on 16th January, 1987 and the provisions of the Public Service Rules and Guidelines for Appointment, Promotions and Discipline in the Civil Service.
(d) A Declaration that subject to good conduct and continuing efficiency the Plaintiff is entitled to continue in the service of Ebonyi State.
(e) A Declaration that subject to good conduct and continuing efficiency the Plaintiff is entitled at all material time including the period of his purported termination to receive all his salaries and emoluments and other benefits including promotion accruable to him under the terms of his employment.
(f) An order of the court setting aside the said letter dated 25th May 2009 which was signed by the Permanent Secretary/Secretary to Ebonyi State Civil Service Commission.
(g) An order of the court compelling the 2nd Defendant to reinstate the Plaintiff to his office and duty as Chief Accountant.
(h) An order that the Plaintiff be paid all his accrued salaries allowances and emoluments from 19th May 2009 when he was wrongfully and unlawfully dismissed.
The statement of claim of the Appellant as Plaintiff in the court below was supported with an affidavit, statements on oath, List of Witnesses and List of documents.
The Respondents/Defendants did not file a statement of Defence. Notwithstanding, they filed an Amended Motion on notice dated 21/1/2011 on 24/1/2011. By the said motion, the Respondents prayed the court below for an order striking out the plaintiff’s Appellant’s suit for want of jurisdiction. The ground for the application was that the suit is statute barred since it was not filed within the period stipulated by S.2, 2a of the Public Officers (protection) Law, Laws of Eastern Nigeria, 1963 as applicable to Ebonyi State.
Counsel for the parties exchanged written addresses on the Respondents motion on notice.
The learned trial judge agreed that the issues for determination on the motion on notice are as formulated by the learned counsel for the Plaintiff/Appellant to wit:-
1. Whether it was proper for the defendants to file a preliminary objection challenging the competence of this suit on the ground that it was statute barred without first filing a statement of defence.
2. Whether this action is statute barred as to invoke the statute of limitation.
3. Whether limitation of action can be used as a defence in all situations.
The learned trial judge found in favour of the Respondents on the three (3) issues submitted for determination. More particularly, on issue No. 3, the trial court held at pages 193 – 194 as follows:-
“This court has no authority to disagree with the Plaintiff’s counsel that the issue of bad faith, abuse of office etc as exceptions to the applicability of a statute of limitation are issues of fact to be proved by credible evidence. However, this court is equally, of the firm view that the facts about the allegations of bad faith, abuse of office etc. must appear on the face of the Plaintiff’s pleadings. That is, they must be pleaded by the Plaintiff first before their proofs by credible evidence would arise. Therefore, the prayer by the Plaintiff’s counsel to hear the Plaintiff’s suit on its merits to enable him prove allegations of bad faith, abuse of office, etc may not be granted where the facts about such allegations were not pleaded.
What was clear from the entire statement of claim, the writ of summons filed by the Plaintiff and the facts contained in his counter affidavit are not facts of allegations of bad faith, abuse of office, acting outside the scope of the defendant’s authority etc. but the facts in support of the Plaintiffs cause of action which may succeed if the Plaintiff’s suit is not statute barred”.
At page 195 of the Record, the learned trial judge concluded that “the Plaintiff’s suit in this matter in the peculiar facts and circumstances of this case, is statute barred. And being so, the suit is hereby struck out because this court lacks the jurisdiction and competence to hear the suit on its merit”.
Dissatisfied with this Ruling, the Plaintiff/Appellant filed a Notice of Appeal containing seven (7) grounds of appeal in this court on 27/06/11.
The relevant briefs of argument for this appeal are as follows:-
(a) Appellant’s brief of argument dated 30/11/2011 and filed on 1/12/2011 – settled by F.S.N. Ogazi Esq.
(b) Respondents brief of argument dated 16/7/2012 and filed on 16/7/2012 settled by P.M. Awada Esq., Director of Civil Litigation, Ministry of Justice, Ebonyi State.
(c) Appellant’s Reply to Respondents brief of argument dated 14/8/2012 and filed on 15/8/2012 – settled by F.S.N. Ogazi Esq.
Learned counsel for the Appellant formulated four (4) issues for determination namely:-
1. Whether the lower court was right in relying on Section 2 of the Public Officers Protection Law, Laws of Eastern Nigeria 1963 to hold that the Plaintiff/Appellant’s case is statute barred when the said section 2 of the Public Officer’s Protection Law, Laws of Eastern Nigeria, 1963 had been repealed by Existing/applicable Laws of Ebonyi State (grounds 1, 2 and 4).
2. Whether the lower court was right in its holding that it had no jurisdiction to entertain the Plaintiffs case on ground of the provision of Section 2 of the Public officers (Protection) Law, Law of Eastern Nigeria 1963 when the Plaintiffs case is founded on breach of contract (ground 2).
3. Whether the trial court was right in its holding and application of the Public Officers Protection Law as a substantive Law and not a Procedural Law (ground 3 and 5).
4. Whether this court can grant the reliefs sought by the Plaintiff/Appellant at the lower court(ground 7).
Learned counsel for the Respondents on the other hand framed the following issues for determination:
1. Whether the learned trial judge was right when he declined jurisdiction to hear and determine the Appellant’s suit.
2. Whether the employment of a Public Officer in the Public Service of a state amounts to a contract for the purpose of a (sic) the Public Officers Protection Act 2004.
3. Whether the Court of Appeal can grant the reliefs set out in the statement of claim, at the court below when evidence had not been made.
I observe that the Appellant did not formulate any issue in relation to ground 6 of the Notice and Grounds of Appeal, the said ground 6 on which no issue has been formulated is deemed abandoned and accordingly struck out.
I have also carefully gone through the record of proceedings and the briefs of argument and I do not have any doubts that the following two issues would adequately meet the requirements of justice in this appeal.
1. Whether the learned trial judge was right when he declined jurisdiction to hear and determine the Appellant’s suit.
2. Whether this court can grant the reliefs sought by the Appellant at the court below.
Learned counsel for the Appellant approached Issue No. 1 from three main angles. The first is that the learned trial judge was wrong to have relied on the provisions of Section 2(a) of the Public Officer Protection Law of Eastern Nigeria to hold that the Appellant’s case is statute barred when in fact the said Section 2 of the Public Officers Protection Law, Laws of Eastern Nigeria 1963 had been repealed by Sections 42 and 44 of the Limitation Law of Ebonyi State Cap. 102 Laws of Ebonyi State 2009 and also by Sections 42 and 44 of the Limitation Law of Abia State 2001, both extant and applicable Laws in Ebonyi State on the subject matter of Limitation and therefore applicable to the Plaintiff’s/Appellant’s case.
On this first leg of Issue No. 1, learned counsel for the Appellant referred to the cases of Adesanoye v. Adewole (2007) 1 FWLR (Pt.353) 856 and Moro Local Govt. v. Lawal (2007) 2 FWLR (Pt. 362) 1914 and submitted that the trial court does not have the powers to revive a repealed law.
He argued that the impact of the provisions of Sections 42 and 44 of the Limitation Law of Ebonyi State 2009 is that Limitation of time in actions against Public Officers should be calculated as the same period of limitation against private individuals. In other words, the discrimination in the calculation of Limitation period which was previously in favour of Public Officers has been removed.
Learned counsel submitted that this legislative innovation is against the backdrop of Public and Judicial outcry against the observed injustice for using the Public Officers Protection Law to provide underserved shield for public officials. He cited the cases of Nwako Aviazu v. H.O.S. Ebonvi State (2008) 3 NWLR (Pt.1073) 237 at P.177.
Adigun v. F.C.S.C. (1993) 8 NWLR (Pt 313) 516 at 536 – 537, where the various courts trenchantly excoriated the application of the Public Officers Protection Laws and called for its review.
Counsel submitted that the change in the law is also in accord with the current trend in other jurisdictions. He referred to Halsbury’s Laws of England 4th Edition vol. 28 at p.266 paragraphs 604 where the learned authors state”…………..the current trend is that periods of limitation applicable in actions against public officers should be the same as those applicable in similar actions against private person.
He referred further to the Limitation Law, Cap 80 Laws of Rivers State 1990 and the case of S.P.D.C.N. LTD. v. Amadi (2010) 13 NWLR (Pt.1210) 82 at 119, where the repeal of Public Officers (Protection) Law, Laws of Eastern Nigeria 1963, was judicially upheld.
Learned counsel submitted that by the provision of the Limitation Law of Ebonyi State, 2009, the 3 months period of Limitation Law in the Public Officers Protection Law, Law of Eastern Nigeria had been repealed. The current Limitation Period in actions against Public Officers in a contractual matter as in the instant case is 5 years as provided for under Section 18 of Limitation Law of Ebonyi State 2009.
He argued that the provision of Section 18 of the Limitation Law of Ebonyi State, 2009 was cited before the trial court (pages 164 and 185 of the Record).
However, the court below in resolving the Issue of applicability of the Limitation Law of Ebonyi State 2009 vis-‘E0-vis the application of Section 2 of the Public Officers Protection Laws, Laws of Eastern Nigeria, 1963 wrongly reasoned in page 187 of the Record as follows:-
” . . .. . . and the substantive Law in existence when the cause of action arose in the Plaintiff’s suit in the instant case is the Public Officers Protection Law, Laws of Eastern Nigeria 1963 as applicable to Ebonyi State. The Ebonyi State Limitation Law, 2009 which had the effect of abolishing the Public Officers Protection Law, applicable to Ebonyi State is not the applicable law in this suit because it came into effect on 23/10/09 while the cause of action in the Plaintiffs suit was in 2/7/09………….”
Learned counsel submitted that the above reasoning is gravely in error. That, there is no basis for the trial court’s reasoning that the Limitation Law of Ebonyi State came into effect on 23/10/09.
That, in determining the commencement of a statute, the court has to look at the date provided as the commencement date. That, a clear look at the commencement date indicate that the commencement date of the Limitation Law of Ebonyi State is 21st May 1990. He submitted that where a commencement date is provided for within a statute, it is not open to the court to embark on a voyage of discovery outside the statute to import another commencement date extraneously.
Learned counsel submitted that for the purpose of clarity, the Limitation Law of Ebonyi State (Cap 102) 2009 was not enacted in 2009. The year 2009 was the year of compilation of the revised Laws of Ebonyi – where all existing/Pre-existing Laws were compiled in series of volumes. That, the reasoning of the trial court is akin to suggesting that a pre-existing law contained in the Laws of the Federation, 2004 such as the Criminal Code Cap. C. 38 2004 came into effect in the year 2004.
Learned counsel submitted that assuming but not conceding that the Limitation Law of Ebonyi State (Cap. 102) 2009 was not in force when the cause of action arose, the applicable Limitation Law in Ebonyi State as at 2/7/09 when the Plaintiff (Appellant) was purportedly dismissed from office would be the Limitation Law of Abia State Cap. 24 Laws of Abia State vol. II, 1998 – 2000 which has the same provision as the Limitation Law of Ebonyi State. That the said limitation law of Abia State has been an existing/applicable law in Ebonyi State by virtue of Ebonyi State (Applicable Laws) Edit (now Law), 2009 which made the laws applicable in Abia State applicable to Ebonyi State.
Learned counsel invites us to examine the provision of Section 44 of Limitation Law of Abia State Cap. 24 Laws of Abia State Vol. II, 1998 2000 and observe that it also repeated the Public Officers (Protection) Law, Law of Eastern Nigeria, 1963. Its commencement date is 21st May 1990. Infact, the Public Officer’s (Protection) Law, Law of Eastern Nigeria 1963 had earlier on been repealed by Limitation Law of Imo State which was the statutory predecessor to Limitation Law of Abia State.
The trial court, said counsel, was in grave error when it invoked and applied the repealed Public Officers (Protection) Law of Eastern Nigeria, 1963 instead of the aforesaid Laws. That, the trial court was duty bound to consider and give effects to Sections 42, 44 and 18 of Limitation Laws of Ebonyi State, Abia State and Imo State whether cited by counsel or not.
He referred to the case of Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 and said that the court is presumed to know all the laws and bound to have judicial notice of all existing laws.
Learned counsel submitted that a clear examination of Section 42, 44 and 18 of the Limitation Law of Ebonyi State and its statutory predecessors shows that Section 2 of Public Officers (Protection) Law, Laws of Eastern Nigeria has been expressly repealed. He submitted that the trial court anchored its decision on the premise that the Limitation Law of Ebonyi State, 2009 is a general law while the Public Officers Protection Law is a specific law which prevails over the former. This, counsel said, is misconceived. That, Section 42 of the Limitation Law of Ebonyi State, 2009 and its statutory predecessors as contained in Laws of Abia State and Laws of Imo State are specifically directed at actions against the state and Public authorities. Furthermore, that, Section 44 of the Limitation Law, Ebonyi State, 2009 specifically/expressly List the Laws/situations exempted from the application of the Limitation Law of Ebonyi State.
If it had been the intention of the legislature to exempt the Public Officers (Protection) Law from the application of the law, it would have expressly stated so.
The Law, said counsel, is that where a legislation has been passed to change the law, its operation shall not be minimized or neutralized by introducing notions taken or inspired by the old law which words of the legislation intended to abrogate.
He referred to the cases of Rose v. Ford (1937) A.C. 826 cited in .Moro Local, Govt. V. Lawal (2007) 2 FWLR (Pt. 362) 1914.
Learned counsel submitted further that Section 2 of Public Officers (Protection) Law, Laws of Eastern Nigeria 1963 is an expropriatory legislation encroaching on the citizen’s right of access to court, consequently, it has to be given a strict construction.
The law, he said is that where there are two competing statutes, one tending to take away the right of access to court and the other tilting towards the preservation of such right, the court should tilt towards preservation of right.
He referred to the case of Joseph Manstup Din v. A.G. Federation (1988) S.C.N.I. 14 at 47.
The second approach of the learned counsel to Issue No. 1 is his submission that the learned trial judge erred in law when he held that the Public Officers Protection Law, 1963 is a substantive law and not a procedural law.
He argued that the Public Officers Protection Law (Laws of Eastern Nigeria) 1963 is a limitation law and thus a procedural law. It is a law setting out a time frame within which an action against Public Officers must be brought. The Ebonyi Limitation law, 2009 is also a limitation law. Every limitation law is a procedural law not a substantive law.
He referred to the cases of
Nze Bernard Chigbu v. Tonimas Nigeria Limited & Another (2006) 4 SCNJ 262.
Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377
Learned counsel submitted that the import of the trial court’s conclusion is that the Public Officer’s Protection Law is a substantive law and not a procedural law, and thus amenable to the presumption against retrospectivity thereby making the Limitation Law of Ebonyi State 2009 inapplicable to the Appellant’s case. If the court had held/concluded that Public Officers Protection Law is a Procedural Law, then it would have been duty bound to apply the Limitation Law of Ebonyi State 2009 even if the provisions of the said law are to have a retrospective effect.
Learned counsel submitted that it is a common principle of law that statute of limitation such as the Ebonyi State Limitation Law, 2009, being a procedural law apply retrospectively, as the presumption against retrospectivity does not apply to procedural law. This is based on the principle that there is no vested right in any course of procedure. A litigant only has the right to reply on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.
He referred to the cases of Adamu v. State (1991) 4 NWLR (Pt. 530) at 541.
Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 394.
Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 380.
Costa Rica v. Evlanger (1874) 3 Ch.D. 69.
Learned counsel submitted that the learned trial judge’s misconception of the Limitation Provision of the Public Officers Protection Law of Eastern Nigeria as a substantive law led to the error of concluding that the Limitation Law of Ebonyi State 2009 did not apply to the case.
That the case relied on by the court below namely:
Nduka v. Ogbonna (2011) 1 NWLR (Pt. 1227) 153 and
Hassan v. Alivu (2010) 17 NWLR (Pt. 1223) 547 are not apposite.
The issues raised and considered by the courts in those cases did not include the question as to whether the issue of Limitation of actions is a matter of substantive or procedural law? Thus, the reliance on those cases were out of con and not flowing from the ratio decidendi of those cases.
Learned counsel submitted that even if the Limitation Law of Ebonyi State is a substantive law, a clear perusal of the law particularly the commencement date (21st May 1990) and the clear provision of Section 44, 45 of the law show that it is the intention of the legislature that the law wilt operate retrospectively.
The law is that where there is an expressed intention of the legislature that an enactment should operate retrospectively, the court should enforce that intention. And, that in such circumstance, the presumption against retrospectivity will not apply.
He referred to the cases of Adesanoye v. Adewole (2007) 1 FWLR (Pt. 353) 856.
Osadebe v. A.G. Bendel State (1991) 1 NWLR (Pt. 169) 525.
Learned counsel submitted that Section 44 of the Limitation Law of Ebonyi State, 2009 provides that any enactment relating to limitation of action which were in force in the state immediately before the commencement of this law shall cease to apply.
The only exceptions made are cases listed under Section 43 and Section 45 of the Law. Actions against Public Officers are not among the exceptions.
Counsel submitted that it is obvious that Section 44 and 42 have expressly repealed the application of the Public Officers Protection Law. Also, by provision of Section l8 of the Limitation Law, it is obvious that the Plaintiffs action will become statute barred after 5 years and not after 3 months as held by the learned trial judge.
The third approach of the learned counsel for the Appellant to issue No. 1 lies in his submission that the Public Officers Protection Law is not applicable in a case of contract as the Plaintiff’s Appellant’s case. On this, counsel relied on a long list of authorities including the cases of Osun State Government v. Danlami (Nigeria) Ltd. (2007) 9 NWLR (Pt. 1073) 156.
Oduko v. Government of Ebonyi State (2004) 13 NWLR (Pt. 891) 487.
C.B.N. v. Adedeji (2004) 13 NWLR (Pt. 890) 226.
Minister F.C.T. v. M.H. Nigeria Limited (2011) 9 NWLR (Pt.1252) 272.
Nigerian Ports Authority v. Construction General Forsura S.P.A. (1974) ALL NLR (Pt. 2) 945.
Learned counsel further submitted that with specific reference to contract of employment, in Oduko v. Government of Ebonyi State (2004) 13 NWLR (Pt. 891) 487 at 504, the Court of Appeal per Fabiyi JCA. (as he then was) held as follows:-
“I come to the conclusion that the 3rd respondent’s action leading to the instant appeal, being founded on a contract of employment, Section 2(a) of the Act cannot avail the respondents.
The appellant’s claim is one founded on contract.
The learned trial judge, with due respect, was in error when he held that appellant’s action was statute barred”.
Learned counsel submitted that Oduko’s case (supra) is substantially on all fours with the present case. Further, that it is instructive to note that the Court of Appeal in the case of Oduko (supra) specifically interpreted the same Public Officers (Protection) Law, Law of Eastern Nigeria 1963 and held that the law is not applicable to cases of contract of employment.
Learned counsel urged us by the principle of stare decisis to be bound by the case of Oduko v. Govt. of Ebonyi State (supra).
On the principle of stare decisis, he referred to the cases of Okeke v. State (1995) 4 NWLR (Pt. 392) 676.
Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540.
Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293 where it was variously held that the Court of Appeal is bound by its previous decision.
Learned counsel for the Respondent submitted on Issue No. 1, First, that the conclusion of the Appellant’s counsel that Section 2(a) of the Public Officers Protection Law has been repealed by existing laws in Ebonyi State as at the time the cause of action arose and that the Public Officers Protection Law upon which the Respondent based their preliminary objection is a procedural law instead of substantive law are erroneous and misconceived.
Learned counsel for the Respondent submitted that Ebonyi State was created out of the then Enugu and Abia States on 1st October, 1996 and by virtue of the State (Creation and Transitional) Decree, No. 36 of 1996, the laws applicable in Enugu State came into force in the state. That, by the Ebonyi State (Applicable Laws) Law, Cap 40 Laws of Ebonyi State 2009, all the laws or edicts which were in force in Abia State of Nigeria as at 1st October 1996, were, without further assurance made to apply in Ebonyi State. The Public Officers Protection Law, Laws of Eastern Nigeria, 1963 was in force in Abia State as at 1st October 1996.
Learned counsel submitted that this legislation, i.e. the Public Officers Protection Law is borne out of the equitable principle of equity not aiding the indolent. The law was made to prevent the mischief on the defendant where an aggrieved person would go to sleep only to wake up any time and rush to court to challenge the action which a public officer performed in good faith knowing quite well that the facts for the defence of the action are subject to the vagaries of death, transfer of officers who will serve as witnesses, destruction of relevant documents etc.
Learned counsel submitted that the Appellant admitted that the cause of action in the suit accrued on 2nd July 2009, the day he received the letter of Dismissal. That, it is equally on record that the appellant waited for nearly twelve months before seeking judicial remedy. This, counsel said, was about nine months outside the period provided by the law. He submitted that a statute of limitation like the Public Officers Protection Law removes the right of action, the right of enforcement and the right for judicial relief in a Plaintiff once the alleged cause of action is statute barred. This leaves him with a bare and empty cause of action which he cannot enforce.
He referred to the cases of Awokunle v. NEPA (2007) 15 NWLR (Pt. 1057) 340 at 357.
Nwaogwugwu v. President of Nigeria (2007) 6 NWLR (Pt. 1030) 237 at 274, 275 and Bello Nasir v. Civil Service Commission (2010) 41 NSCOR (Pt. 1) 267 at 295, 296.
Learned counsel submitted that the cause of action in this suit having accrued on 2nd July 2009, the applicable law is the Public Officer’s Protection Law, Laws of Eastern Nigeria as then applicable in Ebonyi State. He argued that the Limitation Law, Cap. 102, Laws of Ebonyi State with which the Appellant supports the Plank of his contention came into force on 23rd October, 2009.
The vexed Issue, according to counsel is as to whether the Public Officers Protection Law or any Limitation Law for that matter is a procedural Law and not a substantive law. That, the Appellant cited Chigbu v. Tonimas (2006) 26 NSCOR (Pt. 1) to submit that all Limitation Laws are procedural. But, that, recent decisions of this court and the apex court are in agreement that an objection anchored on the Public Officers Protection Act or Law is a jurisdictional Issue.
On this, learned counsel referred to the cases of
Nduka v. Ogbonna (2011) 1 NWLR (Pt. 1227) 153
Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547
That, it is rather absurd to contemplate that an issue as cardinal as jurisdiction is merely procedural. Courts, he said, are creation of the Constitution, Statutes, Laws and Edicts. These instruments confer the courts with jurisdiction.
Therefore, jurisdiction itself is ‘created’ by constitution, statutes, Laws and Edicts and vested on the courts which they have created. Rules of procedure are creations of the courts.
He referred to the case of Oloruntoba – Olu v. Abdul-Raheem (2009) 39 NSCOR 105 at 142.
Learned counsel submitted that regard being had to a later decision of the Supreme Court, the decision in Chigbu v. Tonimas (supra) and all other decisions tending to support it are now bad law. That, the legislature either expressly enacts a law to repeal an existing law or makes a new law inconsistent with an earlier one thereby impliedly repealing that other law. That, in the same vein, a Supreme Court’s decision that is inconsistent with an earlier decision makes the law enunciated by that earlier decision inoperative. This way, said counsel, the court impliedly overrules itself. He admitted that the decision in the Chigbu case (supra) was not specifically considered in Veepee Ind. Ltd. v. Cocoa Ind. Ltd (2008) 34 NSCOR (Pt. 2) 904.
Oshoboja v. Amida (2009) 40 NSCOR 651, he submitted nevertheless that a later decision of the Supreme Court inconsistent with an earlier one undeniably overrules the latter.
Learned counsel for the Respondent submitted further that the courts have consistently not held employment in the Civil Service to be a contract for the purpose of exempting it from the applicability of the Act
He referred to the cases of Unilorin V Adeniran (2007) 6 NWLR (Pt. 1031) 498 at 521.
Ibrohim v. JSC (1998) 14 NWLR (Pt. 584) 1
Learned counsel conceded that the Limitation Law of Ebonyi State excepts contracts from its application, but the position is that employment in the Public Service of a State or the Federation is not a contract envisaged by the Public Officers Protection Law, more so, said counsel, as it does not apply in the instant case. He argued that Public Officers Protection Law is a specific and special law and it is settled that where there is conflict between a law making general provisions to govern certain proceedings and a law making specific provisions to govern certain proceedings, the general law will give way to the specific one.
Learned counsel submitted that assuming but not conceding that employment in the Public Service of a State is a contract in Stricto Sensu, the specific provision protecting the Public Officer from actions brought after three months of the accrual of the cause of action removes it from the general exception. The principle of law is expressio unius est exclusio ulterius (the express mention of one thing implies the exclusion of the alternative).
Learned counsel urged us to hold that employment of a Public Officer in the Public Service of a State does not amount to a contract for the purpose of exception provided by the Public Officer’s Protection Law, 2004 or Public Officers Protection Law, Laws of Eastern Nigeria 1963 as applicable to Ebonyi State, the law being a specific and special law designed to protect Public Servant while in the performance of official duties.
In his reply brief, learned counsel for the Appellant further contended that the legion of cases cited by the learned counsel for the Respondents are not apposite and thus not applicable to the instant case. That, in all the cases relied on by the Respondents, the Issue of repeal of Public Officers Protection Laws by the applicable Limitation Law were neither raised nor an Issue before the court. He argued that the crux of the present case is the repeal of S.2 of the Public Officers Protection Law of Eastern Nigeria, 1963 by the applicable limitation law of Ebonyi State Cap. 102 or Limitation Law of Abia State with commencement date as 1st May 1990. Such intervening factor did not occur in the cases cited and relied on by the Respondents.
Learned counsel for the Appellant submitted that the Respondents contention that the decision of the Supreme Court in Chigbu v. Thomas (2006) 26 NSCOR (Pt. 1) to the effect that all limitation laws are procedural is now bad law having regard to the decisions in Nduka v. Ogbonna (supra) and Hassan v. Alivu (supra) is misconceived. That Issues of jurisdiction could be either procedural or substantive. Thus, to say that limitation law is a procedural law or an Issue of procedural does not foreclose it from raising issue of jurisdiction.
Furthermore, that, a clear reading of the cases of Nduka v. Ogbonna (supra) and Hassan v. Aliyu (supra) will show that the issue considered by the court was never issue of whether the limitation law is a procedural law or substantive law. Also, the court in those cases never considered and overruled the decision in Chigbu v. Thomas (supra).
The question of whether the learned trial judge should have applied the provision of the Limitation Law Cap. 102 of Ebonyi State, 2009 rather than the Public Officers Protection Law, Laws of Eastern Nigeria 1963 to the Appellant’s case is intricately interwoven with the issue of whether a Limitation Law as the public Officers Protection Law is a substantive law or a procedural law.
From the facts of the case, the Appellant’s cause of action arose on 2nd July 2009 but the Writ of Summons was issued on 18th May 2010.
The Limitation Law of Ebonyi State Cap. 102 of 2009 took effect on 23rd October 2009.
By the above stated facts, it follows that if a Limitation law is a substantive law, it takes effect when the cause of action arose as such an action would be caught by the presumption against retrospectivity.
On the other hand, if the Limitation law is procedural, there is no presumption against retrospectivity and the applicable law would be the law at the hearing of the suit and not necessarily when the cause of action arose.
The learned trial judge himself appreciated the above logic but leaned in favour of the idea that a limitation law is a substantive rather than procedural law and therefore that the applicable law is the law in force at the time the cause of action arose.
At pages 225 – 226 of the Record, he had this to say:
“The second reason why the provision of Section 18 of the Limitation Law of Ebonyi, State 2009 will not apply is that the said Limitation Law was not the applicable law when the cause of action arose. The Limitation Law of Ebonyi State, 2009 came into force on 23/10/09 but the cause of action arose on 2/7/09; and it cannot operate retrospectively. However, if the issue of statute barred is a matter of practice and procedure as contended by the Plaintiff’s counsel, the applicable law would have been the law in existence at the hearing of the case before the court which invariably would have been the Limitation Law, Laws of Ebonyi State 2009. But in this case, the issue of whether an action is statute barred is a substantive issue of jurisdiction to be governed by the law in existence when the cause of action arose. The bottom line of the resolution of this second issue for determination is that the issue of whether the Plaintiff’s suit in this case is statute barred for not being in compliance with Section 2(a) of the Public Officers Protection Law, Laws of Eastern Nigeria 1963 applicable to Ebonyi State is an issue of jurisdiction which is a substantive law and not an issue of practice and procedure.
Thereby, it does not admit of the applicability of the Limitation Law of Ebonyi State, 2009 which was not in existence when the cause of action arose in this matter on 2/7/09.
Therefore, the second issue for determination is resolved in favour of the defendant”.
The Supreme Court decision in the case Nze Bernard Chigbu v. Tonimas Niseria Limited and 1 Or. (2006) 4 S.C.N.J. 262 essentially concerns the termination of an agency relationship by a letter of dismissal of the Plaintiff/Appellant therein and claims for commission, return of goods and damages.
The solitary issue before the Supreme Court was whether the Imo State Limitation Edict of 1994 or the English Limitation Act of 1623 applied, the latter having been repealed by the former. It was common ground that the Plaintiff’s/Appellant’s cause of action accrued on 17/7/91 and that the Appellant’s suit was brought on 23/12/96. Under the Limitation Act of 1623, the Appellant had 6 years within which to bring his suit whereas under the Imo State Limitation Edict of 1994, he had 5 years.
The 1994 Edict came into force on 30/1/94. The Edict repealed the 1623 Act.
Because, the Plaintiff’s Appellant’s reliefs (c) and (d) were in the tort of detinue which would not be complete until there have been a demand and a refusal, the Supreme Court allowed the Appellant’s appeal in part but agreed with the Court of Appeal that:
“The trial judge failed to determine whether or not the Limitation Edict of 1994 is a Substantive or Procedural Law………….
The Limitation Edict of 1994 of Imo State is a Procedural Law, it does not give any rights or obligations to the parties, it only limits the right of action by a party and that is purely procedural”.
In agreeing with the Court of Appeal in the case of Chigbu v. Thomas (supra) that statutes of limitation are part of procedural law and that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of the Courts, Oguntade JSC who delivered the lead judgment of the apex court gave incisive analysis to previous decisions on the subject matter both in England and Nigeria.
In the process, the Learned Justice of the Supreme Court reviewed amongst others the cases of Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 394.
Costa Rica v. Evlanser (1974) 3 Ch. D 62.
Re-Athlumnev (1898) 2 OB 551 at 552.
Raleigh Industries Ltd. v. Nwaiwu (1994) 9 NWLR (Pt. 431) 760 at 771.
Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 66.
The Ydun (1899) p.236.
Akinnuoye v. Military Administrator of Ondo State & Ors. (1977) 1 NWLR (Pt. 483) 564.
Ifezun v. Mbadugha (1984) 5 S.C. 79 at 82.
At page 273 of the Law Report (4 S.C.N.J.), Oguntade JSC remarked thus:
” ………..In Ojokolobo v. Alamu (supra), this court would appear to have accepted that limitation laws are matters of practice and procedure only by quoting with approval the observation of Vaughan Williams L.J. in THE YDUN (1899) P. 236 where dealing with a statute of limitation, he observed.
“I also agree that the Act is retrospective, for though, no doubt the general rule of construction is that ‘nova constitutio futuris forman imponere debet non praeteritis; it is pointed out in Moon v. Durden (1884) 2X EX22 at 43) that rule of construction yields to a sufficiently expressed intention of the legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactment which affect only procedure and practice of the court”.
The learned Justice of the Supreme Court (Oguntade JSC) recognized that sometime the distinction between substantive law and procedural or adjectival law could be thin perhaps difficult, thus at page 274 he adopted the test laid down by ONU JSC in the case of Atolagbe v. Awuni (supra) at page 575 when he held thus:
“It is pertinent at this juncture to point out that the distinction between substantive law and procedural law can be quite difficult at times. Broadly speaking however, procedural or adjectival law relates to practice and procedure, that it rules according to which substantive law is administered. It prescribed the method for enforcement of rights as well as the enforcement of obligation or duties. On the other hand. Substantive law is concerned with the creation, definition, limitation of obligation.
See Gafari v. Johnson (1986) 5 NWLR (Pt.39) 66 at 71”.
In the Chigbu v. Tonimas case (supra) Oguntade JSC accepted that procedural law or adjectival law including rules of court normally fixes time for doing an act or the taking of a step in the proceedings and did not hesitate to hold that the Limitation Edict of 1994 of Imo State is a procedural Law and being such a procedural law, it operates retrospectively.
See also Ifezua v. Mbadugba (1984) 5 S.C. 79 at 82 per Obaseki JSC.
The supporting pronouncement of S.M.A. Belgore JSC was more emphatic on the Issue of Limitation Law being a procedural law. At page 276 of the report (4 S.C.N.J.) the learned jurist held thus:
“The Limitation Law is certainly procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statutes on this all important subject must be read as a whole …….”
Learned counsel for the Respondent in this appeal, tried to impugn the authority of the decision of the Supreme Court in Chigbu v. Tonimas (supra) on the basis that the latter decision of the Supreme Court in Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 and the Court of Appeal decision in Nduka v. Ogbonna
(2011) 1 NWLR (Pt.1227) 153 regarded the Issue of statute barred as an Issue of Jurisdiction and therefore could not be procedural. Curiously, enough, the learned counsel for the Respondent without cross-checking or checking out the logic of his proposition boldly declared the decision of the Supreme Court in Chigbu v. Tonimas (supra) to be bad law.
The first case relied upon by the learned counsel for the Respondent is the decision of the Supreme Court in Alhaji Jibrin Balu Hassan v. Dr. Mu’azu Babangids Aliyu and 2 Ors. (2010) 17 NWLR (Pt. 1223) 547. The case concerns the action of the Independent National Electoral Commission in the substitution of candidates for election under Section 34(2) of the Electoral Act 2006.
The Supreme Court upheld the preliminary objection based on Section 2(a) of the Public Officers Protection Act Cap. 379 LFN 1990 and Section 308 of the Constitution of the Federal Republic of Nigeria 1999.
In particular it held, that a suit against a Public Officer for any act done in pursuance of execution or intended execution of any Act, Law or of any Public duty etc. must be commenced within 3 months of the cause of action.
In that case, the Supreme Court upheld the preliminary objection by the Respondents that the suit was statute barred and accordingly dismissed the appeal.
The case of Julius Nduka v. Edwin Ogbonna (2011) 1 NWLR (Pt.1227) 153 equally relied on by the learned counsel for the Respondent was a decision of the Enugu Division of the Court of Appeal per Amiru Sanusi JCA. which construed the time limit for actions founded on contract and tort under the provision of Section 20(1) of the Action Law, Anambra State. The Court of Appeal allowed the appeal in part in that case and held that the action for slander was caught up by the provision of Section 20(1) of Action Law, Cap 3 of Revised Laws of Anambra State of 1991. But, that the claim for malicious prosecution was not so caught. In none of the two cases above relied on by the learned counsel for the Respondent did the court had to tackle the question of whether or not Limitation Laws are substantive or procedural Laws as was done in the case of Chigbu v. Tonimas (supra). In none of the cases was the decision in Chigbu v. Tonimas cited or referred to. And, in none of the cases was the decision in Chigbu v. Tonimas (supra) overruled or even impugned directly or indirectly.
In all of the above circumstance, I make bold to say that the decision of the Supreme Court in the case of Chigbu v. Tonimas (supra) remains good law and as authority for the proposition that Limitation Laws are Procedural Laws and are therefore and are retroactive in nature and/or that the presumption against retrospective construction has no application to such enactment.
Now, Section 44 of the Limitation Law of Ebonyi State Cap. 102 Laws of Ebonyi State 2009 specifically repeals the Public Officers Protection Law of Eastern Nigeria, 1963 in the following words:
“44. Any enactments relating to the Limitation of action which were in force in the state immediately before the commencement of this law shall cease to apply”.
Section 42 of the same law provides for time limits for action against the State and Public authorities and offices as follows:-
“42. Notwithstanding anything contained in any other enactment or rule of law to the contrary all actions to which this law applies howsoever arising against the state or against any State Public authority or officer thereof or any person acting in the stead of such Public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual”.
The import of the above provision as rightly suggested by the learned counsel for the Appellant is that Limitation of time in actions against Public Officers should be calculated as the same period of Limitation against private individuals.
In otherwords, the discrimination in the calculation of Limitation period which was previously in favour of Public Officers has been removed.
In the instant case, even though the cause of action arose on 2nd day of July 2009, the Plaintiff’s/Appellant’s commenced the action by a writ of summons dated 18/5/2010 after the commencement of the Ebonyi Limitation Law Cap. 102 on 23rd October 2009. It follows that the applicable procedure law in this case is the Limitation Law of Ebonyi State and not the Public Officer (Protection) Law, Laws of Eastern Nigeria 1963 as erroneously held by the learned trial judge.
The reasoning of the learned trial judge and the submission of the learned counsel for the Respondent that since Limitation Laws are matters of jurisdiction, Limitation Laws are necessarily Procedural Laws are equally not well founded.
As pointed out by the learned counsel for the Appellant, jurisdiction could be either procedural or substantive. Indeed when a party raises an objection under a Limitation Law, he has raised a jurisdictional objection but not an objection to the jurisdiction of the court simpliciter. In other words, it is when an objection as to Limitation becomes successful or is upheld that the question of the lack of jurisdiction of the court to try such a matter arises.
Jurisdiction is therefore secondary or collateral to an objection as to Limitation. Consequently, Limitation Laws do not cease to be procedural or adjectival Laws merely because the success on objections based on such laws would lead to decline of jurisdiction by the courts. Limitation Laws remain as Limitation Laws and are necessarily procedural or adjectival Laws, they are only collaterally or effectually connected to jurisdiction when successfully pleaded. A plea of Limitation is a procedural defence for a defendant and until it is successfully invoked no question of jurisdiction arises. Limitation therefore is a potent but latent weapon for the invocation of jurisdiction.The learned trial judge was in error to have held that Limitation Laws are substantive Laws because they are matters of jurisdiction.
Still on Issue No. 1, learned counsel for the Appellant was right to have said that by Section 18 of the Limitation Law of Ebonyi State Cap. 102, 2009, the Appellant could bring his action in contract of employment not later than 5 years period from the time the cause of action accrued and that in any, event the Public Officers Protection Law purportedly relied on by the learned trial judge does not apply to contracts including contracts of employment.
Truly, as a matter of history and content, the Public Officers Protection Act (Law) was not intended to apply to contracts.
The Public Officer Protection Act came into our statute book for the first time as ordinance No. 39 of 1916 as “An act to provide for the Protection against actions of persons acting in the execution of public duties” and remains since order 47 of 1951 till today in its present form.
The Public Officers Protection Act (Law) gave Procedural Protection to Public Officers as a compliment to the colonial vestige of the “king can do no wrong” Since the sovereign or Government would not accept vicarious liability for torts committed by its servant, the officers that would now be individually liable must be safeguarded “to obviate the inconvenience and embarrassment to defendants whose witnesses, be they members of staff or people having dealings with them may no longer be available; and documents for defence must have been out of circulation, in some cases already destroyed and cannot be found in archives or will otherwise take inordinate length of time to locate”.
See e.g. Belgore JSC in Chigbu v.Tonimas (supra) at page 276.
Earlier cases which invoked the provisions of the Public Officers Protection Act involved various torts and other actions in execution of public duties by Public Officers more especially District/Administrative Officers and Police Officers. These cases which set the pace for the interpretation of the Public Officers Protection Act include D. Fasoro v. Melbourne and Nwagu Onyeji (1923) 4 N.L.R 85.
Micheal Obiefuna v. Alexander Okoye (1961) ALL N.L.R 537.
Ekemode v. Alausa (1961) ALL N.L.R 13 to mention a few.
At this time and indeed up till today, there was no question of the sovereign or the state not been liable in contract to members of the community.
Indeed, subject to the provisions of the Law Reform (contract) Act No. 64 of 1961, the state will be liable for breach of contract with any other member of the community.
Furthermore, by the time the Regions and then States of Nigeria started adopting the Provisions of the Public Officers Protection Act, the law operated side by side with other various Action and/or Limitation Laws that govern time limit for contracts, torts and land by and among private individuals.
The Public Officers Protection Act (Law) had been and remains limited in operation “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…”
In the case of Osuu S.C. Oduko v. Govt of Ebonyi State and 3 others (2004) 13 NWLR (Pt.891) 487 at 503 – 504, the court of Appeal (Enugu Division) per Fabiyi, JCA (as he then was) painstakingly reviewed earlier authorities and reiterated that Section 2(a) of the Public Officers Protection Act Cap. 379 Laws of the Federation of Nigeria 1990 and Public Officers Protection Law Cap. 106, Laws of Imo State of Nigeria as applicable in Ebonyi State do not apply to actions founded on breach of contract of employment.
Starting from page 503 to 504 of the Law report (13 NWLR), the learned justice remarked as follows:-
“I need to point it out here that it was held about five decades ago in Salako v. L.E.D.B. & Anor. (1953) 20 NLR 169 that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc. de comarmond, S.P.J. relied for his stance on Milford Docks Co. v. Milford Haven U.D.C. Empire Digest, vol. 38 page 109 No. 780
Foat v. The Mayor & C of Margate 11 QBD 299
Halsbury’s Law of England, 2nd Edition vol. XXVI P.298
In Alapiki v. Governor of Rivers State (1991) 8 NWLR (Pt.211) 575 at 602 Ogundare, JCA., as he then was considering a similar provision referred to the case of Nigerian Ports Authority v. Construzioni Generali F.C.S. & Anor. (1974) 12 S.C. 81, (1974) NSCC 622 where the Supreme Court considered the scope of Section 97(1) of the Ports Act. Ibekwe JSC confirmed that de Commermand S.P.J., quite rightly stated the law in the passage of his judgment as given in Salako v. L.E.D.B. (supra)
He concluded by saying:
“It seems to us that an enactment of this kind i.e. S.97 of the Ports Act is not intended by the Legislature to apply to specific contracts. See also Midland Railway Company v. The Local Board for the District of Withington (1882) 11 O.B.D. 788. Brett M.R. observed that where an action has been brought for something done on omitted to be done under an express contract an enactment of the same kind does not apply to specific contracts”.
The then learned justice of the Court of Appeal also referred to the case of Judicial Service Commission & Anor v. B.U. Alaka (1982) 8 – 10 CA 42 at 65, where Agbaje JCA (as he then was) delivering the judgment of the court said:
“I have no doubt therefore that counsel for the Plaintiff Mr. Ihensikhen, was right in this other submission of his which I have stated above. So even if I had held that the Protection given by S.2 of the Publc Officers Protection Law can be extended to protect institutions like the first defend ant, which I don’t, I would have held that in an action sounding in contract like the one in hand, the protection does not extend to the transaction the subject matter of this action i.e. a contract.
Still at page 504, Fabiyi JCA (as he then was) concluded in the case of Oduko v. Govt. o” Ebonyi, State & Ors. (supra) as follows:
“Let me stress the point here that the facts of the cases of Alapiki and Alaka are on all fours with the facts of this appeal. Judicial opinion highlighted thus far appears weighty. I too, must come to the conclusion that the 3rd Respondent’s action leading to the instant appeal, being founded on contract of employment, Section 2(a) of the Act cannot avail the respondents. The appellant’s claim is one founded on contract. The learned trial judge, with due respect was in error when he held that appellant’s action was statute barred”.
I do agree with the learned counsel for the Appellant that the instant case is on all fours with the case of Oduko v. Govt. of Ebonyi State & Ors. (supra).
The learned trial judge was in error to have held Appellant’s case as statute barred when the claims in the writ of summons and statement of claim relate to breach of contract of employment.
Having held in favour of the Appellant in the consideration of the various legs making up Issue No.1, I hold that the learned trial judge was wrong when he declined jurisdiction to hear and determine the Appellant’s suit. The Appellant’s suit is not caught up by any Limitation Law.
Issue No. 1 is accordingly resolved in favour of the Appellant.
On Issue No. 2, on whether this court can grant the reliefs sought by the Appellant in the court below, learned counsel for the Appellant referred to Section 16 of the Court of Appeal Act, 2004 and order 4 Rules 3 and 4 of the Court of Appeal Rules 2011. He argued that in order to settle completely and finally the maters in controversy between the parties and avoid multiplicity of legal proceedings, this court can grant any remedy or make any other to which any of the parties before it may be entitled.
He referred to the case of Ado Ibrahim & Co. Ltd. v. B.C.C. Ltd. (2007) 15 NWLR (Pt. 1058) 538 that this court has full jurisdiction and control over the whole proceedings as if the proceedings were or have been initially instituted before it as court of first instance and rehear the whole case wholly or in part as the case may be.
Learned counsel for the Appellant submitted that the practice whereby the Court of Appeal assumes complete jurisdiction of the trial court is a desirable practice usually resorted to by the Court of Appeal to avoid unnecessary delay in the final settlement of disputes.
He referred to the cases of Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172.
Okotie-Eboh v. Okotie-Eboh (1986) 17 NSCC (Pt. 1) 183 at 190 and Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 45.
He submitted that in the peculiar circumstances of this case, the Plaintiff/Appellant filed a statement of claim, statements on oath and exhibited relevant documents. That, the Plaintiff/Appellant at the court below also filed a 34 paragraphs affidavit of fact in support of the statement of claim and documents in support of his claim.
Learned counsel submitted that the Respondents did not file any defence but exercised the option of filing a Notice of Preliminary Objection. He argued that where a defendant exercises such option, he is deemed to have accepted as true all the statement of facts contained in the Plaintiff’s pleading.
He referred to the case of IFS INV. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495.
Furthermore, said counsel, no counter-affidavit was filed in challenge of the affidavit of facts in support of the statement of claim.
The court is entitled to treat the non-rebuttal as admission of the truth of the facts contained in the affidavit.
Also, that the facts stated in paragraphs 5, 6, 7, 8 and 10 in the counter affidavit of the Plaintiff/Appellant were not controverted. These uncontroverted depositions are deemed admitted.
He referred to the case of Balonwu v. Obi (2007) 5 NWLR (Pt.1028) 488.
Learned counsel submitted that the uncontroverted deposition in paragraph 6(a) (b) and (c) of the Plaintiffs/Appellant’s counter-affidavit in page 122 of the Record to the effect that Respondent did not comply with the prescribed procedure for termination of employment suffices for this court to grant the reliefs sought by the Appellant.
This, counsel said, is because the law is that where there is a prescribed mode for termination of employment in an employment with statutory flavour and that mode is not strictly complied with, the termination of employment is null and void.
He referred to the case of Iderima v. River State Civil Service Commission (2005) 16 NWLR (Pt.951) 378.
Learned counsel for the Respondent referred to the case of Inakoju v. Adeleke (supra) and went on to say that the Section 16 power of the Court of Appeal is not limitless but should be determined case by case. That, in the instant case, the Respondents challenged the jurisdiction of the trial court on the ground that the action was statute barred.
That, the real question in controversy in this appeal, is whether the decision of the trial court declining jurisdiction to entertain the action is right. The real question before the court is certainly not the declaration of the dismissal of the appellant as being null and void. That, is before the trial court.
On the conditions for the invocation of Section 16 of the Court of Appeal Act, 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011, learned counsel submitted that evidence not having been led, defendants are yet to file their statement of defence, the condition as to the availability of necessary material to consider and adjudicate on the matter as laid down in Inakoiu v. Adeleke (supra) cannot be said to have been met.
In deciding Issue No. 2, I do agree with the learned counsel for the Respondent that the actual Issue in this appeal or the real question in controversy is not the reinstatement of the Appellant as the Chief Accountant of the 3rd Respondent by the 2nd Respondent nor is it the declaration of the dismissal of the Appellant as being null and void.
Rather, the real question in controversy as donated by the Notice of Appeal in this case is whether the decision of the trial court declining jurisdiction to entertain the action is right. In such circumstance, the court cannot invoke its Section 16 power to grant the reliefs sought by the Appellant in the court below.
In the cases of Inakoju v. Adeleke (2007) 29 NSCOR (Pt. 2) 958, (2007) ALL FWLR (Pt. 353) 3 and
Ezeigwe v. Nwawalu (2010) 41 NSCOR (Pt. 1) 500 amongst others, the Supreme Court adumbrated the following conditions which must co-exist for the Court of Appeal to exercise its Section 16 powers to include.
(a) Availability of necessary material to consider and adjudicate on the matter.
(b) The length of time before the disposal of the action at the trial court and the hearing of the appeal.
(c) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court and the hardship such an order would bring or would cause on either or both parties in the case.
(d) The lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it.In the instant case, the Respondents objected to the jurisdiction of the court by raising a defence of limitation after the Appellant had filed his writ of summons and statement of claim. The Respondents are yet to respond to the Appellant’s statement of claim by filing defence to the substantive action. In such circumstance, it could not be said that this court is possessed of the necessary material to adjudicate on the substantive matter in the court below.
For this reason, the invitation of the Appellant for this court to grant the relief sought in the court below cannot be accepted and it is accordingly refused.
Issue No. 2 is resolved against the Appellant.
In this appeal, Issue No. 1 is resolved in favour of the Appellant, but the second Issue is resolved against the Appellant.
The appeal is allowed in part.
The consequence of resolving Issue No. 1 in favour of the Appellant is that the substantive suit, Suit No. HAB/27/2010 is remitted to the Hon. Chief Judge Ebonyi State for assignment to another Judge of the High Court of Ebonyi State other than Hon. Justice B.A.N. Ogbu for trial on merit.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the judgment of my learned brother, MOJEED ADEKUNLE OWOADE JCA. The appeal has recorded partial success and I am in agreement with the order remitting the suit No. HAB/27/2010 to the Hon. Chief Judge of Ebonyi State for assignment to another Judge for trial on merit.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read a copy of the judgment delivered by my learned brother MOJEED ADEKUNLE OWOADE JCA. I am in complete agreement with his reasoning and conclusions. I also hold that the appeal succeeds on issue No. 1 and fails on the 2nd issue. I abide by all the orders therein.
Appearances
F.S.N. Agazi with I. AgboFor Appellant
AND
P.M. Awada Dcl. Ebonyi State with H.I. Ogidu (Miss) (NYSC) State counselFor Respondent
