MR. UDUAK BERNARD OKON v. THE GOVERNOR OF AKWA IBOM STATE & ORS (2013)

MR. UDUAK BERNARD OKON v. THE GOVERNOR OF AKWA IBOM STATE & ORS

(2013)LCN/6589(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/C/180/2011

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

MR. UDUAK BERNARD OKON Appellant(s)

AND

THE GOVERNOR OF AKWA IBOM STATE & ORS Respondent(s)

RATIO

WHETHER OR NOT A PRELIMINARY OBJECTION SHOULD BE DETERMINED BEFORE THE SUBSTANTIVE SUIT

By way of prefatory remark, we note that a preliminary objection is a pre-emptive strike; its resolution will determine whether or not the appeal will be determined on the merit, per Ngwuta JSC in Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F. Indeed, that is why we are under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiag (2002) 10 NWLR (Pt 7760) 455, 468; UBA Plc v ACB [2005] 12 NWLR (Pt 939) 232; Goji v Ewete [2001] 15 NWLR (Pt 736) 273, 280.
Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L.M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ananeku v. Ekeruo (2002) NWLR (Pt 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (Pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (Pt 1006) 504, 521 – 2. PER NWEZE, J.C.A.

WHETHER OR NOT A NOTICE OF APPEAL IS THE FOUNDATION OF EVERY APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice of Akwa Ibom State, Uyo Judicial Division, the appellant in this appeal [as plaintiff] commenced the action culminating into this appeal against the respondents herein (as defendants). He claimed the following reliefs as per his Amended Statement of Claim:
(a) A declaration that it is unlawful for the officials of the second defendant to hinder the plaintiff from entering his office and also refused (sic) to pay his salaries from March, 2005 till date;
(b) An order of court directing the General Manager of the second defendant to pay all the salaries/allowances of the plaintiff from March, 2005 till date;
(c) The sum of N5,000,000.00 (Five Million Naira) only as special and general damages for embarrassing the plaintiff causing him and members of his family untold hardship by refusing to pay his salaries;
(d) An order of court directing (sic) the second defendant, their agents, assigns and privies from illegally causing the plaintiff to be arrested and detained by law enforcement agencies for the purpose of hindering the plaintiff from proving this case;
(f) A declaration that the processes leading to and the actual termination of the employment of the plaintiff through the second defendant’s purported letter of dismissal dated February 23, 2005 was unlawful and contrary to the principles of fair hearing.
The defendants/respondents greeted the suit with a preliminary objection predicated on section 1(1) of the Public Officers Protection Law Cap, 140, vol.5, Laws of Akwa Ibom State. The lower court’s order dismissing the said suit prompted this appeal.

FACTUAL BACKGROUND
Way back in 1983, the plaintiff/appellant was employed, by what used to be known as the Cross River Television Authority, as a Cameraman. Akwa Ibom State was carved out of Cross River State in 1987. Thereafter, the second defendant/respondent was incorporated to take over the staff, assets and liabilities of the then Cross River State Television Authority, including the plaintiff/appellant.
On August 19, 2002, the plaintiff/appellant wrote to the second defendant/respondent. He claimed to have obtained two additional qualifications, the National and Higher National Diploma certificates [(ND/HND) (Business Science) from the Institute of Management and Technology, Enugu, (hereinafter, simply, referred to as “IMT Enugu”]. He requested for conversion/transfer to any department in which his acquired skill would be, duly, expressed.
The second defendant/respondent wrote the Registrar of IMT, Enugu for confirmation and verification of the said Certificates. Lo! It was discovered that the said Certificates were forged. As expected, the said second defendant/respondent commenced disciplinary proceedings against him. He appeared before the Administrative Panel of Inquiry [hereinafter, simply, called “the Panel”] which was set up to look into the matter. He was directed to bring the originals of these certificates the next day.
He did not do this. Rather, he submitted a letter, titled “Appeal,” dated June 24, 2004. In that letter, he implored the Panel to discontinue further inquiries into the matter and discountenance the said certificates. The Panel did not oblige him. It concluded its assignment. It submitted a report in which it recommended his dismissal from service for misconduct. On February 23, 2005, the plaintiff/appellant was dismissed from service and his salary was stopped.
On May 19, 2008, more than three months after his dismissal, he took out the said Writ of Summons. He claimed the reliefs already set out above. In paragraph 22 of their joint Amended Statement of Defence, the defendants/respondents gave notice of their intention to challenge the competence of the suit. The notice was anchored on the ground that the suit was statute barred by virtue of section 1(1) of the Public officers Protection Law Cap, 140, vol.5, Laws of Akwa Ibom State having been commenced more than three months after the cause of action arose. After he had closed his case, he applied for the further amendment of his Amended Statement of claim. The lower court dismissed the application.
By their Notice of Preliminary Objection of March 18, 2009, the defendants/respondents entreated the lower court to dismiss the suit for want of jurisdiction as it was statute barred. The lower court deferred the ruling on the objection until after hearing the evidence of the parties. After its consideration of the case, the lower court upheld the said objection. It, accordingly, dismissed the suit. The plaintiff/appellant, being dissatisfied with the said judgment, appealed against it. He formulated six issues for the determination of his appeal against the said judgment of the lower court [Coram Unwana J].

ISSUES FOR DETERMINATION:
(1) Whether the judgment delivered by Hon. Justice Joy Unwana of High Court 8, Uyo, in suit No. HU/218/2008 on November 30, 2010, was against the weight of evidence?
(2) Whether the (sic, learned) trial Judge erred in law when he refused to grant the appellant’s application for amendment of the Amended Statement of Claim?
(3) Whether the (sic) trial Judge erred in law when he held that the case of the plaintiff/appellant was statute barred?
(4) Whether the (sic) trial Judge erred in law when he refused to rely upon exhibit ‘C’ (the judgment of Suit No. HU/148/99) in which the respondents were restrained from retiring the appellant from Service before his retirement age?
(5) Whether the (sic) trial Judge erred in law when he held that the appellant was aware of his dismissal from service even when the respondents could not prove service of the purported letter of dismissal on the appellant?
(6) Whether the learned trial Judge erred in law when he refused to hold that the processes leading to, and the actual termination of employment of the appellant through the second respondent’s purported letter of dismissal dated 23/2/2005 was (sic) unlawful and contrary to the principles of fair hearing?
(7) Whether the learned trial Judge erred in law when he refused to order the second respondent to release or hand over the appellant’s credentials that were kept or custodied by the second respondent?
On their part, the first to the third respondents concreted the following six issues:
(1) Whether the judgment of the learned trial Judge delivered on the 30th November, 2010 was against the weight of evidence?
(2) Whether the learned trial Judge had exercised his discretion judicially and judiciously in refusing to grant the further amendment sought by the plaintiff/Appellant?
(3) Whether the action of the appellant as constituted was statute barred?
(4) Whether the court’s order in exhibit C was made at large to subsist in perpetuity, (made at large)?
(5) Whether the appellant was aware of his dismissal from service?
(6) Whether the appellant had proved his case at the lower court to entitle him to judgment as per the reliefs he claimed in his Amended Statement of Claim?

ARGUMENT ON THE ISSUES
APPELLANT’S ARGUMENTS

ISSUE 1
When this appeal came up for hearing on October 21, 2013, neither the appellant his counsel was in court. They did not write to excuse their absence. On confirmation that they had due notice of that date slated for the hearing of the appeal, this court deemed the appellant’s brief filed on September 16, 2011 as having been argued pursuant to order 18 Rule 9(4) of the Court of Appeal Rules, 2011.
In the said brief, counsel contended that the appellant had prove his case in accordance with the Law and had tendered all the relevant documents to show that he was a statutory employee whose employment could only be terminated in accordance with the law. He had also stated in paragraph 4 of the Amended Statement of Claim that the condition of service or the terms of the employment relationship that existed between him and the second respondent were contained in the Civil Service Rules of Akwa Ibom State, citing Rule 04331(1) of Akwa Ibom State Civil Service Rules and Rule 04103 thereof.
He submitted that the second respondent did not comply with Rule 04333 of the Civil Service Rule which allowed the Civil Service Commission to set up a Board of enquiry to determine the case of the appellant before his dismissal, Miliki v Michael Imoudu Institute for Labour Studies ((2009) 21 WRN 35.
He pointed out that the appellant had pleaded in paragraph 34 of the Amended Statement of claim, page 96 of the record, that he worked for the second respondent as a principal cameraman and was paid a monthly salary of N36,655.23 as at February, 2005 which was Level 12 step 7. He urged the court to hold that the appellant had proved his case.

ISSUE 2
Counsel noted that the reason for seeking the amendment of the Statement of Claim was contained in paragraph 5(a) (b) of the supporting affidavit. He contended that the amendment that was sought was consistent with the evidence that was adduced, Yusuf v Obasanjo [2003] 112 LRCN 2066; Sani v. Abdulsalami (2009) 15 WRN 61, 85.
He noted that one of the issues in controversy was whether the purported letter of dismissal was served on the appellant. He cited authorities. He submitted that if the lower court had granted the amendment which the appellant sought, it would not have held that the appellant’s case was statute barred. He explained that the letter of dismissal was written in 2008 and attached to the court process that was served on the appellant.

ISSUE 3
Arguing this issue, counsel explained that, when the appellant saw for the first time, the purported letter of dismissal, exhibit ww, he had to apply to amend his Statement of Claim and brought new paragraphs 41(a)(b) and (c) of the Amended Statement of claim, page 102 of records. He submitted that the cause of action arose from the date of dismissal of the appellant.
He conceded that the date that the cause of action arose can be got from the Writ of Summons and the Statement of Claim. He pointed out that the original claim of the appellant was for the payment of arrears of salaries. So, it bordered on payment of debt, Amede v UBA (2009) 20 WRN 140, 166. He observed that the appellant’s case fell under the exception or proviso allowed in section 1 of the public Officers’ Protection Law (supra), Aremo II v Adekanye (2004) 121 LRN 4853 10; CBN v Amao [2011] All FWLR (Pt 558) 806, 827; Araka v Ejeagwu [2000] 82 LRCN 3406, 3454. He took the view that, in this case, the appellant had not been dismissed having not been served dismissal letter up till date, section 31(1)(b) of the Limitation Law, Cap 78, Laws of Akwa Ibom State 2000,
He pointed out that, from the appellant’s case, it was obvious that there was a concealment of fact. According to him, since the appellant was not served with the purported letter of dismissal till date, he was deprived of his right to react to the act of the second respondent. In his view, the cause of action would not accrue before he became aware of the letter of dismissal, Administrators/Executors of the Estate of General Sani Abachav Eke Spiff and Ors [2009] 121 LRCN 43, 76. He maintained that the Public Officers’ Protection was inapplicable in all situations, citing Nweze JCA in Tolorunleke v ARMTI (2009) 16 WRN 39, 75 – 76. He cited a host of other cases.

Counsel observed that the provisions of section 2 (supra) is in pari materia with sections 1 and 2 of the public officers, protection Law, Akwa Ibom state, Aiyelabegan v LGSC, Kwara State (2009) 22 WRN 108, 147 – 148. He canvassed the view that, for the purpose of limitation, time begins to run when the cause of action arises and not when it is discovered. He drew attention to page 354 of the record for the position which the lower court took. He argued that it erred when it placed reliance on Bakare v. NRC (2007) 17 NWLR (Pt.1064) 606.

ISSUE 4
Here, he contended that the plaintiff/appellant was entitled to be paid his salaries because, as at date, he was still an employee of the second defendant. He contended that the lower court erred when it held that exhibit C was not breached or disobeyed when the appellant was purportedly dismissed from service. He urged the court to allow the appeal on this ground by holding that the respondents were restrained from dismissing the appellant from work since the word “dismissal” still has the same effect and consequences as “retirement.”

ISSUE 5
Counsel submitted that service of the termination of employment on the employee was a condition that must be fulfilled by the employer before the termination/dismissal from service could be declared valid, citing Rule 04340 of the Akwa Ibom State Civil Service Rules. He submitted that the second respondent did not comply with the said provision when it, purportedly, dismissed the appellant from service, Imoloame v WAEC [1992] 11 – 12 SCNJ 121, 125; Bakare v LSCSC (1992) 10 SCNJ 173, 179; Ekanem v NNMC [2004] 1 NWLR 357, 394.
He observed that the appellant had denied that he was served the letter of dismissal, paragraphs 41(40 and 41(b) of the Amended Statement of Claim, page 96 of the record; paragraph 5 of the Reply to the Statement of Defence, page 31 of the record; Regtd Trustees of the Apostolic Church v Fatunde (2010) All FWLR (Pt 510) 678. He drew attention to the fact that the only witness who testified for the defendant did not know how the letter of dismissal was served or who served same. He urged the court to allow this appeal on this ground.

ISSUE 6
Counsel re-iterated the point that the purported letter of dismissal, exhibit ww, had not been served on the appellant yet. He pointed out that the appellant heard of his dismissal for the first time at the lower court. That was after he had filed this case against the respondents. He took the view that, being an employment that was regulated by statute, the second respondent had a duty to comply with the extant laws before terminating the appointment of the plaintiff, section 38 of the Broadcasting Corporation Law, Cap 20, Laws of Akwa Ibom State, 2000 and section 200, thereof. He maintained that only persons mentioned in section 200 above could dismiss the appellant from work. No any other person, therefore, could exercise that prerogative, Bamgboye v UNILORIN [1999] 70 LRCN 2146, 2200.
He pointed out that the letter of dismissal, dated February 23, 2005 was signed by one Asuquo Andem on behalf of the Chairman, Akwa Ibom Broadcasting Corporation Board of Directors. He opined that the said Asuquo Andem did not have the capacity to sign the letter on behalf of the said Chairman. He maintained the second respondent did not comply with the provision of section 200 in exhibit K. In his view, this could be seen from the queries that were issued to the appellant.
He pointed out that three members of staff of Trade Union were not members of the panel. Above all, the DW1, the plaintiff’s’ Head of Department and Head of Administration, was a member of the panel. In effect, the DW1 was the accuser and a Judge in his own case, LDPC v Fawehinmi [1985] 2 NWLR (Pt 300) 334.
He urged the court to hold that the plaintiff was not dismissed. He emphasizes that the processes leading to, and the actual, dismissal of the appellant were contrary to section 36 of the 1999 (as amended) and provision of Rule 04335 of the Akwa Ibom State Civil Service Rules.

ISSUE 7
On this issue, counsel pointed out that the appellant had, in paragraph 16 of the Amended Statement of Claim, page 96 of the record, stated that he had submitted the statement of result of his OND and HND
certificates obtained from IMT Enugu to Miss Mercy Otu, the administrative head of the second respondent. He pointed out that the respondents had admitted the appellant’s averment in paragraphs 2 and 18 of the Amended statement of Defence, page 140 of record.
He observed that, on February 18, 2009, while testifying, the appellant told the lower court that he appeared before the Panel and submitted all the original documents enumerated in exhibit ‘E’ to the second respondent. He noted that the respondents’ counsel did not challenge the plaintiff’s averment during cross examination. He submitted that, having proved that the second respondent was keeping the appellant’s documents enumerated in exhibit “E”, and having claimed for their return in claim 42(d) of the Amended Statement of Claim, it became imperative for the tower court to order their return. He viewed the court’s refusal to do as a miscarriage of justice. He urged the court to so hold, and consequently, direct the second respondent to hand over all the appellant’s documents to him forthwith.

FIRST – THIRD RESPONDENTS’ SUBMISSIONS
F.J. Ibanga (Mrs), DDCL, Ministry of Justice, Akwa Ibom State, who appeared with Sifon C. Isong, SSC, for the respondents, at the outset, intimated the court of the respondents’ Notice of Preliminary Objection. She drew the court’s attention to the arguments in support of the objection in the respondents’ brief deemed, properly filed on June 13, 2012. She adopted the said arguments.
In the said brief, she pointed out that the ground of the objection was that the appeal was incompetent as it was filed out of time without the leave of this court. She explained that the lower court delivered its judgment on November 30, 2010, pages 340-359 of the record. She submitted that it was a final judgment as it had disposed of the rights of the parties. So, it could only be reviewed or reversed by this court, section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Ohajunwa v. Obelle (2008) 3 NWLR (Pt.1073) 52, 73; Ogunmola v. Kida (2001) 12 NWLR (Pt. 726) 93, 106; Ibok v. Honesty II (2007) 6 NWLR (Pt.1029) 55 at 69. Counsel pointed out that, as it was a final judgment, an appeal could lie against the said judgment as of right to this court without the leave of this court.
She observed, however, that section 25(1)(2)(a) of the Court of Appeal Act prescribed the period for filing an appeal against a final decision; Chief of Defence staff v. Adhekegba (2009) 13 NWLR (Pt.1158) 332, 356; Maduabuchukwu v. Maduabuchukwu (2006) 10 NWLR (Pt. 986) 475, 494. She, further, noted that the said judgment, which the appellant was appealing against, was delivered on November 30, 2010, pages 340-359 of the record, while the Notice of Appeal was filed on April 1, 2011, pages 360-365 of the record. She opined that the Notice of Appeal was, therefore, filed four months after judgment was delivered. She submitted that the said Notice was filed outside the statutory period of three months as prescribed by law.
She drew attention to page 2, paragraph 1.0 of the appellant’s brief for the acknowledgement of this fact. Counsel for the appellant, in the said appellant’s brief, had explained the appeal was filed out of time because of the industrial action embarked upon by the staff of Akwa Ibom State Judiciary. He submitted, further, that his notice which he filed on April 1, 2011, out of time, was proper.
Mrs. Ibanga dismissed the above as misconceived. She maintained that the said notice, which was filed without the leave of the court, was improper. She noted that Order 7, Rule 10 of the Court of Appeal Rules empowers this court to extend time for the doing of anything provided for by the Rules. She observed that the proper approach, which the appellant’s counsel ought to have adopted, would have been to apply to this court for extension of time. The application would then state good and substantial reasons why the appeal could not be filed within time. She submitted that the appellant’s Notice of Appeal filed out of time would be competent if, and only if, he sought and obtained the leave of this court, Onwe and Ors. v. Oke and Ors. (2001) 3 NWLR (Pt.700) 406, 417; Maduabuchukwu v Maduabuchukwu (supra) pages 497 – 495.
Counsel, further, submitted that the Notice of Appeal filed on the April 1, 2011, out of time, without the leave of this court, was incompetent, Chief of Defence Staff v. Adhekegba (supra) page 357; Otu v. ACB Int. Bank Plc. She urged the court to hold that the said Notice of Appeal filed on April 1, 2011, outside the statutory period, without the leave of this court, was incompetent. She canvassed the view that a Notice of Appeal is the foundation and substratum upon which every appeal is built. Thus, as the notice of Appeal filed in this appeal was incompetent, this court lacked this jurisdiction to entertain this appeal. She urged the court to dismiss this incompetent appeal since it was filed outside the statutory period contrary to section 25 (sic) (1) (2) (a) of the Court of Appeal, without the leave of this court.

ARGUMENTS ON THE MAIN APPEAL
(ISSUES 1, 5 AND 6 TAKEN TOGETHER)
Counsel submitted that civil cases are determined on the preponderance of evidence. That is, when the evidence adduced by one party is weighed against that which is adduced by the other party, Atuyeye v Ashamu (1987) 1 NWLR (Pt 49) 267; Welle v Bogunjoko (2007) 6 NWLR (Pt 1029) 125. She drew attention to the claims of the appellant against the respondents, paragraphs 42(a-f) of the Amended Statement of Claim, pages 102-103 of the record. She took the view that the judgment of the lower court was not against the weight of evidence and that the appellant had not proved his case to entitle him to judgment.
She noted that, though both the appellant and the respondents led evidence in support of their cases, the lower court did not evaluate the evidence in determining the case of the appellant. Rather, the court predicated its judgment on the Notice of preliminary objection which the respondents filed challenging its jurisdiction to entertain the suit as it was statute barred. The main plank of the respondents’ objection was that the action was commenced more than three months after the cause of action arose contrary to section 1(1) of the Public Officers Protection Law, Cap 140 Laws of Akwa Ibom State, pages 134 – 137 of the record.
She maintained that the lower court, therefore, did not consider the merits of the case in arriving at the said judgment, page 359 of the record. Against this background, she contended that the plaintiff/appellant’s argument that the said judgment was against the weight of his evidence, as the appellant had proved his claim against the respondents to entitle him to judgment, was, therefore, misconceived. She re-iterated the fact that the said judgment was predicated on the Notice of Preliminary Objection challenging its jurisdiction. The merit of the case was not considered.

ISSUE 2
On this issue, counsel explained that, after concluding his evidence on March 16, 2009, the appellant moved his motion on notice filed on June 18, 2009, pages 278-289 of the record. He prayed the lower court, among others, for leave to amend his Amended Statement of Claim in the manner indicated and underlined in exhibit A attached thereto, pages 123-133 and 305-309 of the record.
She noted that, after a careful consideration of the argument by the counsel, the lower court delivered its ruling on February 16, 2010, dismissing the application. She pointed out that the said ruling dismissing the appellant’s application to further amend his Statement of Claim was an interlocutory decision, section 242(1) of the 1999 Constitution (supra); Maduabuchukwu v Maduabuchukwu (supra); Welle v Bogunjoko (supra). She contended that the grant or refusal of an application for amendment was a matter at the discretion of the court, which discretion must be exercised judicially and judiciously.
She opined that, in an interlocutory appeal where the ground of appeal is a challenge against the lower court’s exercise of discretion, as in this case, the refusal to grant the amendment is a ground of mixed law and fact. As such, leave of court ought to be obtained before the ground of appeal and, afortiori, the Notice of Appeal could be deemed competent, chief of Defence Staff v Adhekego (supra) 361; Olusunde v Eyialegun (2005) All FWLR (Pt 242) 503; Maduabuchukwu v Maduabuchuchwu (supra) 492.
She urged the court to hold that the failure of the appel6nt to obtain leave of either the State High Court or of the Court of Appeal rendered Ground 2 in the Notice of Appeal incompetent and this incompetence robbed this court of the jurisdiction to hear Ground 2 of the Notice of Appeal. She canvassed the view that, although the right of appeal either with or without leave is a constitutional right, section 25 (sic) (1) (2) (a) of the Court of Appeal Act sets the time frame within which to file the appeal, Maduabuchukwu v Maduabuchuchwu (supra).
She pointed out that the Ruling of the lower court which give rise to Ground 2 in the Notice of Appeal was delivered on February 16, 2010. On the other hand, the Notice of Appeal in the appeal was filed on April 1, 2011, a period of 13 months after the ruling. She indicated that Ground 2 in the Notice of Appeal was clearly filed outside the period of fourteen days contrary to section 25(1) (2) (a) of the Court of Appeal Act. She maintained that the appellant ought to have applied for extension of time and for leave to raise Ground 2 in the Notice of Appeal. She submitted that a Notice of Appeal filed, without the necessary leave, whether within or outside the period prescribed by section 25 (2) (a) of the Court of Appeal Act, was incompetent.

She, further, urged the court to hold that Ground 2 in the Notice of Appeal, which challenged the interlocutory decision of the lower court dismissing the plaintiff/appellant’s to further amend his Statement of Claim, which was filed without the leave of either the State High Court or this court and outside the fourteen days prescribed by section 25(1) (2) (a) of the Court of Appeal Act, was incompetent. This incompetence robbed this court of the jurisdiction to entertain the matter. He urged the court to dismiss Ground 2 in the Notice of Appeal filed by the appellant on 1-4-2011 as it is incompetent and urge my Lords to so hold.

ISSUE 3
Counsel re-iterated the sequence of events at the lower court. In paragraph 12 of the Amended statement of Defence, the respondents prayed the court to dismiss the suit as it was statute barred. In their submission, they were persons covered by section 1(1) of the Public Officers’ Protection law (supra). Thus, any action against them ought to be commenced within three months of the commission of the act complained of, pages 140 – 149 of the record.
The lower court opted to hear the evidence of parties before deciding on the Notice of Preliminary Objection which raised the issue of statute of limitation. The appellant had, in his counter affidavit, averred that he was only aware of his dismissal in 2008 in court as a result of the processes which the respondents filed. He referred to Hassan v Aliyu (2010) 17 NWLR (Pt 223) 547, 610 as authority for determining whether an action was caught by the period of limitation prescribed by a statute.
From the above, it is very clear that the act which the Appellant is challenging occurred in 2005.
The claim of the Appellant does not fall under the exception as canvassed by the Appellant’s counsel in his submissions. He submitted that the appellant was aware of his dismissal. He noted that he (the appellant) admitted in his pleadings and evidence in court that his salaries were stopped from March, 2005; he was denied access to his office in March, 2005 and, up till now, he has not gone to work. Counsel submitted that the action of the appellant, which has given rise to this appeal, is statute barred having been commenced more than three years after the cause of action arose against the respondents who are public officers/office. He urged the court to find that the action was statute barred.

ISSUE 4
Learned counsel explained that, before the commencement of the above suit, the appellant had obtained judgment in suit No HU/148/99 against the Attorney-General of Akwa Ibom State, the defendant in that suit. In that suit, the appellant challenged his compulsory retirement from the services of the second respondent. She noted that the contention of the appellant is this appeal is that exhibit C still subsists. Thus, the lower court erred in law when it refused to rely on exhibit C in arriving at the judgment.

He observed that it was a general principle of law that the judgment of a court subsists until it is set aside. She observed that that the order was not made at large to last in perpetuity. It was, therefore, not a shield behind which he could hide where he failed in the discharge of his duty. He urged the court to hold that the lower court did not err when it failed to rely on exhibit C in delivering its said judgment.

APPELLANT’S REPLY
The appellant’s reply brief filed on April 20, 2012 had, equally, been deemed argued under order 18 Rule 9(4) of the Court of Appeal Rules (supra). In the said brief, counsel responded to the issues canvassed in the said objection, paragraphs 1-3. He replied to the other issues on paragraphs 4-7 of the said reply brief.

RESOLUTION OF THE ISSUE
By way of prefatory remark, we note that a preliminary objection is a pre-emptive strike; its resolution will determine whether or not the appeal will be determined on the merit, per Ngwuta JSC in Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F. Indeed, that is why we are under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiag (2002) 10 NWLR (Pt 7760) 455, 468; UBA Plc v ACB [2005] 12 NWLR (Pt 939) 232; Goji v Ewete [2001] 15 NWLR (Pt 736) 273, 280.
Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L.M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ananeku v. Ekeruo (2002) NWLR (Pt 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (Pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (Pt 1006) 504, 521 – 2.
The parties were ad idem that the judgment being impugned in this appeal was delivered on November 30, 2010, pages 340 – 359 of the record. The Notice of Appeal against the said judgment was filed on April 1, 2011, four months outside the statutory period ordained in section 24(1); (2)(a) of the Court of Appeal Act, paragraph 1.0, page 2 of the appellant’s brief.
In our view, Mrs. Ibanga, for the respondents, rightly, contended that, in the soft of procedural quandary in which the appellant’s counsel found himself, the prudent option would have been to approach this court under Order 7 Rule 10 of the Rules of this court for extension of time.
If he had taken that option, the only thing that would have pre-occupied his professional mind, in the words of this court in Abubakar Muhammed Mansur and Ors v The Governor of Taraba State and Ors (2012) LPELR-15184 (CA), 16 – 17, paragraphs F-F [per Nweze JCA], was how his application could, conjunctively, surmount the twin conditions ordained in Order 7 Rule 10 (2) (supra), Alagbe v Abimbola (1978) 2 SC 89; Ibodo v Enarofia (1980) 5-7 SC 43; Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt 1) 1; Doherty v. Doherty (1964) 1 All NLR 299; Yonwurenv Modern Signs Ltd (1985) 1 NWLR (Pt 1) 143; Mobil Oil (Nig) Ltd v Agadaigho (1988) 2 NWLR (Pt 77) 385; Okere v Nkem (1992) 4 NWLR (Pt. 234) 132; Kotoye v Saraki (1995) 5 NWLR (Pt 395) 256; Balogun v Afokilu (1994) 7 NWLR (Pt 355) 206; F.H.A. v Abosede (1998) 2 NWLR (Pt 537) 177; Shanu v Afribank Nig Plc (2000) 13 NWLR (Pt 684) 392; Oloko v Ube (2001) 13 NWLR (Pt 729) 161.
Regrettably, he did not take that option. He, rather, filed his Notice of Appeal four months after the said judgment. Clear evidence that this option he embarked upon was, in his view, more viable could be gleaned from his contention that the said Notice of Appeal, filed out of time, was proper!
On our part, we have no hesitation in discountenancing this weak-kneed submission. We, entirely, agree with Mrs. Ibanga that, under the extant law for the initiation of appeals, a prospective appellant who intends to challenge a final judgment must file his Notice of appeal as prescribed under section 24(1) and (2) (a) of the court of Appeal Act (supra). These provisions have been construed in cases too numerous to mention here. However, we take the liberty to mention just one decision of the apex court, Azeez Akeredolu and Ors v Akinremi (1985) 11 SC 74.
Here, we, again, take the liberty to employ the metaphor we have borrowed from the Environmental Sciences.

In our view, the Notice of Appeal forms the most formidable, foundational building block in the architecture of every appeal, First Bank of Nig Ltd v T.S.A Ind Ltd (2007) All FWLR (Pt 352) 1719, 1750. Thus, without a valid Notice, the edifice of the appeal cannot stand, Awhinashi and Anor v Oteri and Ors [1984] 5 SC 38.
This rule is inviolable. As this court explained in Irumdu Jamari and Ors v Ijabani Yaga (2012) LPELR -15188 (CA) 26 – 27, per Nweze JCA, a court is only competent to entertain a matter when the Trinitarian preconditions which Bairamain JSC, eloquently, enunciated in Madukolu v Nkemdilim [1962] 2 SCNLR 241, have been complied with. These preconditions are so well-known that it would serve no useful purpose dwelling on them here. Suffice it to state that they remain the inviolable desiderata for the activation of the competence of a court, Oloriode v Oyebi [1984] 1 SCNLR 390; Osafile v Odi (No 1) [1990] 3 NWLR (Pt 137) 130; Nalsa and Team Associates v NNPC [1996] 3 NWLR (Pt 439) 621; Bronik Motors Ltd v Wema Bank Ltd [1983] 1 SCNLR 296; Obikoya v Registrar of Companies [1975] 4 SC 31; Nyame v FRN [2010] 7 NWLR (Pt 1193) 344, 393 – 394; Funduk Engineering Ltd v McArthur [1995] 4 SCNJ 240; AG, Lagos v Dosumu [1991] 1 SCNJ 162; Barclays Bank v CBN [1976] 6 SC 175; Okonkwo v Okonkwo [2011] 1 WRN 1, 22 – 23.
In all, we endorse the submission of Mrs Ibanga that the appeal is incompetent. However, we do not share her view that it should be dismissed. The appropriate order in the circumstance is an order striking it out, Oloriode v Oyebi [1984] 1 SCNLR 390; Awhinashi and Anor v Oteri and Ors. As noted above, since this preliminary objection on the competence of this appeal has succeeded, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L.M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (supra) citing Ananeku v. Ekeruo (supra); NPA v. Eyamba (supra); UBN v. Sogunro (supra).
In consequence, having found that the appeal is incompetent, we hereby enter an order striking it out, Nigerian Air Force v. Shekete (2002) 18 NWLR (Pt.798) 129; Hassan v Atanyi (2002) 8 NWLR (Pt.770) 581; Okan v. Ekanem (2002) 15 NWLR (Pt.789) 106; Nigerian National Supply Company Limited v. Establishment Sima Vaduz (1990) 7 NWLR (Pt. 164) 38; [1990] 3 NSCC 526, 527; Ifediorah v. Ume [1988] 2 NWLR (Pt. 74) 5, 16; UBAv. G.M.B.H. [1989] 3 NWLR (Pt. 110) 374, 582.
Appeal is hereby struck out. No order as to costs. This shall be the order of this court.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Centus Chima Nweze, JCA.
I join my learned brother in holding that this appeal is incompetent. It is therefore struck out. I also make no order as to costs.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Chima Centus Nweze JCA, striking out this appeal. I am in agreement with his reasoning and conclusion. I will only make these few comments in support.
By the extant provisions of Section 24(1)(a) of the Court of Appeal Act, 2004, an appeal against a final decision of a lower court must be filed within three months. An appeal filed outside this period, unless time is extended upon application, is incompetent or null and void. See: Re: Otuedon (1995) 4 NWLR (PT.392) 655; Ezenwosu vs. Ngonadi (1932) 1 KB 617 at 624; Tukur vs. Government of Gongola State (1988) 1 NWLR (Pt.68) 39.
I agree that the appropriate order to make in the circumstance is to strike out the appeal as this Corut is without jurisdiction to entertain it.

Appearances

Appellant’s appeal deemed argued pursuant to Order 18 Rule 9(4), Court of Appeal Rules, 2011For Appellant

AND

F. J, Ibanga (Mrs), DDCL, Ministry of Justice, Akwa Ibom State, with Sifon C. Isong, SSCFor Respondent