NATIONAL INLAND WATERWAYS AUTHORITY & ANOR v. MR. JIMOH IBRAHIM & ORS
(2019)LCN/13386(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/24/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL INLAND WATERWAYS AUTHORITY
2. MRS. DIEZANI ALISON MADUEKE
(HON. MINISTER OF TRANSPORTATION) Appellant(s)
AND
1. MR. JIMOH IBRAHIM
2. MRE.E ODU
3. ABDULLAHI ALIYU
4. OSUWA IDRIS
5. R.A. ONI
6. STEPHEN AYODELE
7. YAHAYA LINDASAY
8. AZAMA ROMANUS
9. HINDERO GRACE
10. S.B. OWOLABI
11. S.A. DADA
12. OLUMOKO SHOLA
13. UMORU SHALO
14. AHMADU DAHIRU
15. UMORU ABDULLAHI
16. J.S. DENDE
17. SULEIMAN JIBRIN
18. BAAN-ALLAH MUHAMMAD
19. JOSEPH A. MALLAH
20. S.A. AJAYI
21. AMEIZA JAMES
22. A. MAMUDA
23. YAKUBU ADAMU
24. SALIHU IBRAHIM
25. YAHAYA SHAIBU
26. SANI YAKUBU
27. O. AHIA (MRS.)
28. P.S OBATIMEHI
29. ABDULLLAHI MOHAMMED
30. MAXWELL ETIBO
31. MUSA MOHAMMED
32. HARUNA ABUBAKAR
33. EGBUNU MAHAMMED
34. SALISU USMAN
35. ADAMU UMARU
36. M.O OSHASONA
37. ISMEAL TSEBAN
38. OMONILE AMOS
39. JOSHUA OGBEWE
40. D.D DAVID
41. BOLAJI AKINWALE
42. PIUS OKALO
43. ABU ADALI
44. SAMPSON OGUWUMU
45. PETER ONASHE
46. G.I OKERE
47. E. NWAIWU
48. IHEGHORO VINCENT
49. AYINDE J.S
50. F.A AHONSI
51. ABU KARIMU
52. SHIWONIKU MUKAILA
53. USMAN TANKO
54. EDWARD GBAGBENDA
55. ALABA IGBEKELE
56. BELKISU OGUNMODEDE
57. R. OLADELE (MRS.)
58. S.O ROTIMI
59. A.B ADAMU
60. MUSA ASIBITI IBRAHIM
61. JOHN ABEJIRIN
62. SIMEON ORIEGU
63. MOMODU SANI
64. ISA MOHAMMED
65. YUSUF MADUD
66. ISAH AMINU
67. AKELE EMMANUEL
68. LERAMA DANIEL
69. ESTHER ANIMAZU
70. MRS. GBEMUDU
71. FOLOFUNSHO ENOCK
72. M. SUMONU
73. MALIKI AZIKO
74. R.O. WILLIAMS
75. ADAMU ANGULU
76. AHMED BATURE
77. F.O AKPAJI
78. HALIDAY V.
79. SULIEMAN ALIYUU
80. ABU NANA
81. ANDREW ABA
82. S.L. AKAPALE
83. INDAKWOJI MOMODU
84. SHIBU MOHAMMED
85. YUSUF UMORU
86. ME. EZUOKEABA S. OBINUA
87. C.M. OGBULI
88. MR. ANYAWA A. AUGUSTINE
89. J. INE
90. O. OLUTU
91. S.O MALO
92. R.S. OJO
93. W. ABDULLAHI
94. O. OLUWOLE
95. J. ADEOBU
96. AGBEJE A.
97. AKINSOYE M.
98. R. BELLO
99. M. OLADIPUPO
100. JOSEPHINE EHIJEI
101. ENGR. S.K. WEST
102. A. OKOH
103. A.A ENUWARE
104. L.C IGBEKWE
105. B.N. OKWEYE
106. E. EJIM
107. AHMED OLUSHOLA
108. OHANU N. CHIRISTOPHER
109. OLUNTA D. BOMA
110. TIMOTHY D. IGANAH
111. ROSEMARY HART
112. NWORWI PEKPUGBI
113. BAYO AUGUSTINE
114. CHIKAMA JOSPH E. ORUGBAMI
115. OKON I.J
116. TANEM MONIKA FANEM
117. OKON P. TITUS
118. EMMAH AKPAN
119. EMMAH AKPAN
120. KELVIN IBALE
121. OSABORU D.O
122. OGWEZE C.
123. APARA C.
124. ORIJI J.
125. OWOLABI S.D
126. PM. PERE
127. ONI H.O
128. A. BASHORUN
129. OYETAYO C.A
130. EGUZO V.
131. R.O. O UZUMA
132. DOSUMU
133. OLUWA H.
134. BEBETU E.
135. SAIBU A.A
136. INIMOR J.
137. EZEKIEL D.
138. OLUTOKI T.M.
139. MR. S.U. MODONGHO
140. MR. J. ANAMAKU
141. MRS. RE.O. ETALOR
142. MRS. R. DOUGLAS
143. MR. G.O. NIKATERI
144. MR. A. OLABODE
145. MR. F. WILSON
146. MR. S. ATUMA
147. MR. E. ANIYIWE
148. MR. ILECHE
149. MRS. MOHIOMOBA
150. MR. E.M. OMASOLU
151. J.N. ADE
152. MRS. W. EKATS
153. MRS. OTONE
154. C.F. IFI
155. MR. S.I ODOBOR
156. MR. P. AJIE
157. MR. D. KPEREFBEYI
158. MRS. C. EMEKO
159. MRS. G. OMOEFE
160. MRS. T. EBIETOMERE
161. MRS. JOSEPHINE IHENYEN
162. MR. A SALAWU
163. MR. G.M. ABAMWA
164. ME. E.A JAMES
165. MRS. DORIS KPENU
166. MRS. M. WAWE
167. MRS. UDUFIA D.
168. MRS A. OMUERO
169. MRS. B. OLIGEBI
170. MRS. M MEJEBI
171. MRS. A. ONYEGHALE
172. MR. P. MYI
173. MR. I.F. ADEDEJI
174. MRS. P.A. POPO
175. MR. V.C. NDU Respondent(s)
RATIO
THE PURPOSE OF LIMITATION LAW
The contention of the parties borders on the stage in a suit when the issue of time limitation can be raised. Generally, it should be noted that limitation laws operate to forestall the right to access judicial process in enforcing a right or claim against another party. The cornerstone of the doctrine is premised upon the notion of vigilance. To this extent, where a statute has made provision for the period within which an action can be instituted, failure to commence same within the stipulated period will render the legal proceeding invalid. See Udoh & Ors v. Akwa Ibom State Government & Anor (2013) LPELR-21121(CA).
The issue of time limitation is inextricably linked with the question of jurisdiction. Jurisdiction forms the basis of the Court?s authority to adjudicate on a case effectively. It has been described as the live blood, threshold issue, bedrock, fundamental and crucial foundation, heartbeat and extrinsic cornerstone of a legal proceeding. See Ufondu v. Williams & Anor (2014) LPELR-23025 (CA). Usually, any action found wanting on jurisdictional basis is a nullity. Thus, because of its fundamental nature, the notion of jurisdiction underscores any legal action brought before a Court.
Although it is incorrect to say that a Court lacks jurisdiction simply because an action was instituted outside a limitation period, the jurisdiction of a Court to entertain a matter will be deprived only after the plea of limitation has been successfully raised and upheld. See Obatuga & anor v. Oyebokun & Ors (2014) LPELR-22344 (CA); Adetula v. Akinyosoye & Ors (2017) LPELR-42130 (CA). Thus, it is inevitable for a Court?s jurisdiction to be affected when an action is caught up by limitation law.
Being a question that calls the Court?s jurisdiction to entertain a matter into question, it is trite law that issues which affects the jurisdiction of a Court can be raised for the first time on appeal. See Adegbola & Ors v. Idowu & Ors (2017) LPELR-42105 (SC); Lafia Local Government v. Executive Govt. Nasarawa State & Ors (2012) LPELR-20602 (SC); Civil Service Commission & Anor v. Akwa Ibom State Newspaper & Anor (2013) LPELR-21138 (CA); Akinsanya & Ors v. Shoneye & Ors (2016) LPELR-41939 (CA).
The learned Counsel for the Respondents made an issue of the Appellants? Counsel failure to specifically plead the issue of time limitation in his pleadings at the trial Court. I do not agree with learned Respondents? Counsel that the Appellants has to comply with Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules 2000 which provides that the issue of time limitation has to be specifically pleaded. It has been held in plethora of cases that rules of Court are meant to be subservient to statutory provisions and not vice versa. See Katto v. CBN (1991) LPELR-1678 (SC); Elabanjo & Anor v. Dawodu (2006) LPELR-1106 (SC); Afribank (Nig) PLC v. Akwara (2006) LPELR-199 (SC).
While making pronouncement on a similar issue, the Supreme Court held in Forestry Research Institute of Nigeria v. Gold (2007) LPELR-1287 (SC) per Mukhtar JSC, Page 13-14, Para. C-A as follows:
?Learned counsel referred to the provision of Order 25 Rule 6(1) of the Oyo State High Court Civil Procedure Rules of 1988, which stipulates thus:
“6(1) A party shall plead specifically any matter for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”
There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The appellant in this case, realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.? (Underlining mine). PER OGUNWUMIJU, J.C.A.
THE FUNDAMENTAL IMPORTANCE OF JURISDICTION OF A COURT
In the leading judgment delivered by Mohammed JSC, the Supreme Court held that the issue of limitation is one of jurisdiction, since if an action is statute barred then the Court has no jurisdiction to entertain same. His Lordship stated emphatically that a trial without jurisdiction is a nullity. At page 116 of the NWLR, the Supreme Court held per Mohammed JSC that:
“It is quite clear from these decisions of this Court that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be any delay in raising it. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore JSC puts it plainly thus: Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity? … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court, a fortiori, the Court can suo motu raise it” It was also held that objection to jurisdiction can be taken on the basis of the writ of summons or statement of claim alone?I do not think that in the light of the new attitude of the Supreme Court that the issue of limitation or statute bar being one of jurisdiction, there is need to specifically plead it as it can be raised at any time even viva voce before the judgment.?
Similarly, in University of Jos v. Adam (2013) LPELR-20276 (CA), it was held Per Agbo JCA, Pg. 9-10, paras. E-D
“In F.R.I.N. v. Gold supra, Chukwuma-Eneh JSC raised the issue of non-compliance with the Rules of Court in pleading limitation statutes as special defence, the Supreme Court still held that limitation statutes vacated causes of action when breached and being an issue of jurisdiction can be challenged for the first time on appeal. This was again reiterated by Mukhtar J.S.C (as she then was) in Olagunju v. PHCN supra p.128 when she said – “If a statute provides a time limit for the initiation of an action in Court and that time was elapsed, such action becomes otiose with the effluxion of time.” At page 129 she said further – “It is a fact that the defendants did not give specific particulars of the defence the raised in paragraph 12 of their amended statement of defence which the learned counsel for defence has made heavy weather on. The fact still remains that it was matter of jurisdiction which could have been raised even in this Court for the first time.” The importation of the principle or doctrine of waiver in jurisdictional issues is yet to take hold in our jurisdiction. The suit at first instance having been taken more than 5 months after the cause of action had arisen, the cause of action had gone stale and fallen foul of Section 2(a) of the Public officers Protection Act.”
In Elabanjo v. Dawodu (2006) 15 NWLR Pt. 1001. Pg. 76, the Supreme Court went as far as to say that being a jurisdictional issue, statute bar can be raised on appeal without leave of Court first sought and obtained to raise a fresh issue on appeal. That is the current position of the law. PER OGUNWUMIJU, J.C.A.
FACTOR TO DETERMINE WHETHER OR NOT AN ACTION IS STATUTE-BARRED UNDER THE PUBLIC OFFICERS PROTECTION ACT OF 2004
The crux of the argument under this issue is predicated upon the time the cause of action arose for the purpose of determining whether or not the action is statute barred under the Public Officers Protection act of 2004. Section 2(a) of the Act provides as follows:
?Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.?
The above stated provision placed a time restriction for commencing an action against any public officer. Although subject to certain exceptions which includes an act of criminal liability, the provision of Section 2(a) of the Public Officers Protection Act operates as a statutory time limit against any person who wishes to maintain an action against a public officer or authority. See Nasir v. Civil Service Commission Kano State & Ors (2010) LPELR-1943 (SC).
The effect of the former is to extinguish any right that is commenced out the period of three months. See Sulgrave Holdings Inc & Ors v. Federal Government of Nigeria & Ors (2012) LPELR-15520 (SC); Ibrahim v. Lawal & Ors (2015) LPELR-24736 (SC);INEC v. Ogbadibo Local Govt & ors (2015) LPELR-24839 (SC). This is because when an action is statute barred, a person may have the legal right to a cause of action but the right to judicial remedy is voided as no proceeding can be brought in respect of the action. See AG. Adamawa State & Ors v. AG. Federation (2014) LPELR-23221 (SC).
It is trite law that for the purpose of determining when an action is caught up with time limit, recourse is often had to the day the cause of action arose. See ACN & Anor v. INEC & ors (2013) LPELR-20300 (SC); Iweka v. SCOA (Nig) Ltd (2000) LPELR-1563 (SC). A cause of action refers to facts which if proved, would entitle a person to a remedy against another. It is a right of action which entitles a person to right of relief. See Ag. Adamawa State v. AG Federation (2014) LPELR- 23221 (SC).
Usually, a cause of action matures from the period an act or a breach of duty causes an injury towards the legal right of a person. See Woherem v. Emereuwa & Ors (2004) LPELR-3500 (SC). And in giving consideration to this, regards will be had to the existence of a person who can sue and another who can be sued, as well as the conclusion of facts material in proving the success of a person whose right has been alleged to have been breached. See Adigun v. Ayinde & Ors (1993) LPELR-678 (SC); Williams v. Williams (2008) LPELR-3493 (SC); Jallco v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547. Thus, the moment a wrong has been occasioned to a person through the act or inaction of another person, a cause of action is said to have arisen. See Adekoya v. Federal Housing Authority (2008) LPELR-105 (SC); Woherem v. Emereuwa & Ors (2004) LPELR-3500 (SC).
It is well settled law that the writ of summons and the statement of claim are used to ascertain whether there is the existence of a cause of action. The Plaintiff has to show from his pleadings that he possess a cause of action against the defendant. And in order to consider when a cause of action arose for the purpose of limitation law, the filing date of the writ of summons is compared with the period the alleged injury or wrong took place. See Odebiyi v. Wema Bank Plc & Ors (2014) LPELR-22993 (CA). PER OGUNWUMIJU, J.C.A.
WHETHER OR NOT CONSIDERATION WILL BE GIVEN TO WHEN THE INJURY WAS OCCASIONED TO A PERSON’S LEGAL RIGHT FOR THE PURPOSE OF DETERMINING THE DAY OF ACCRUAL FOR A CAUSE OF ACTION
Generally, for the purpose of determining the day of accrual for a cause of action, consideration will be given to when injury was occasioned to a person?s legal right which would otherwise have entitled him to sue. See Arum v. Egbo (2016) LPELR-41542 (CA). And in order to determine this, it is firmly established that for the purpose of computing a limitation period, negotiation cannot preempt time from running for the purpose of determining when a cause of action arose. This was held by the Supreme Court in Eboigbe v. NNPC (1994) LPELR-992 (SC) per Adio JSC, Page 13-14, Para. F-B as follows:
?As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease merely because the parties engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest and right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should have be taken into consideration for the determination of the question whether a claim has been statute-barred. Negotiation by parties does not prevent or stop time from running.?
Also, this Court in Essien v. Cross River State Civil Service Commission & anor (2014) LPELR-23527 (CA) at Pg. 21-22, Para. E-D, per Nweze JCA (as he then was) had this to say:
?Whether it is negotiation or appeal, the fact is that such factors do not impugn on the limitation period ordained in the law. Eboigbe v. NNPC (supra); Odubeko v. Fowler (supra); Sanda v. Kukawa Local Government (supra) and of this Court, NBN Ltd v. A.T. Eng Co. Ltd (2006) 16 NWLR (Pt. 1005) 210; Ibeto Cement co Ltd v. AG Fed (2008) 1 NWLR (Pt. 1069) 470. PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Benin delivered by Honourable Justice M.B. Idris on 6/03/2009 wherein judgment was given in favour of the Respondents.
The facts that lead to this appeal are as follows:
On 5/4/2007, the 1st Appellant issued severance letters dated 29/3/2007 which took effect from 31/12/2006 to the Respondents informing them that they had been retired from the employment of the 1st Appellant. The Respondents alleged that their retirement was not in consonance with the tradition of the Federal Civil Service as they were still in the service of the 1st Appellant when the retirement took effect from 5/4/2007 as they had worked from 1/1/2007 up until that period.
The 1st Appellant made payment of 10% gratuity and 10% pension to the Respondents. However, the Respondents claimed to be entitled to the payment of three months? salary in lieu of notice and also to the 15% increment in the salaries of Federal Civil Servants which commenced on 1/1/2007 when they were still in service of the 1st
1
Appellant.
The Respondents then filed an action claiming the following reliefs:
a. Declaration that Plaintiffs are individually entitled to be paid by Defendants upon their retirement without notice of their 3 months? salary in lieu of notice.
b. Declaration that Plaintiffs are entitled to the salary increase of 15% awarded by the Federal Government to the Federal Government to the Federal Civil Servants whilst in the employment of Defendants for the period for the period 1-1-2007 up to date of their retirement on 5-4-2007.
c. Directing Defendants to pay Plaintiffs their 3 months? salary in lieu of notice to reflect the said 15% increase awarded by the Federal Government.
d. Directing Defendants to pay the Plaintiffs their accrued salary increase from 1-1-2007 to the 5-4-2007.
e. Directing Defendants to pay Plaintiffs interest on their 3 months? salary in lieu of notice at the rate of 21% per annum or at the prevailing bank rate whichever rate is higher from the 5-4-2007 until judgment is delivered and thereafter interest of 10% per annum on the judgment sum until same is finally liquidated and;
f. Other
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suitable reliefs.
At trial, the learned Trial Judge found in favour of the Respondents and ordered that the Appellants pay the accrued salary from 1/1/2007 and 5/4/2007 to the Respondents. Also, that the Respondents were entitled to the salary increase of 15% awarded to federal civil servants for the period 1/1/2007 and 5/4/2007 when they were in the employment of the 1st Appellant.
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal on 7/5/09 and an amended Notice of Appeal on 11/9/18. Record was transmitted on 31/01/11 and was deemed transmitted on 15/10/12. The Appellants? amended brief was filed on 11/9/18 and the reply brief was filed on 5/3/19. The Respondents? brief was filed on 4/2/19.
The Appellant in the brief settled by Ibrahim Umar Abere Esq., Kabir Yusuf Esq., Jameelu D. Haruna Esq., identified three issues for determination as follows:
1. Whether the suit filed by the plaintiffs are at the lower Court was statute barred by virtue of S. 2(a) of the Public Officers Protection Act Cap 41 LFN 2004.
2. Whether the Appellant (1st Defendant at the lower Court) can validly raise the issue of statute
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barred before the Court of appeal having not raised it at the lower Court.
3. Whether the trial judge had considered the material issues of facts before arriving at judgment in favor of the plaintiffs as contained on page 16 of the judgment dated 6-03-2009.
The Respondent in the brief settled by Sir Victor E. Akpoguma identified three issues for determination as follows:
1. Whether the suit filed by the plaintiffs are at the lower Court was statute barred by virtue of S. 2(a) of the Public Officers Protection Act Cap 41 LFN 2004.
2. Whether the Appellant (1st Defendant at the lower Court) can validly raise the issue of statute barred before the Court of appeal having not raised it at the lower Court.
3. Whether the trial judge had considered the material issues of facts before arriving at judgment in favor of the plaintiffs as contained on page 16 of the judgment dated 6-03-2009.
In determination of this appeal, I will recouch and re-arrange the issues as follows:
1. Whether the issue of limitation can be raised anytime even on appeal
2. Whether in law and fact, the action is statute barred
?3. Whether the learned
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trial judge was right to grant the claims of the Respondents
ISSUE ONE
1. Whether the issue of limitation can be raised anytime, even on appeal.
Appellants? Counsel argued that it is trite law that jurisdictional issues can be raised, for the first time on appeal, even at the Supreme Court. Counsel argued that the issue of statutory bar challenges the jurisdiction of the trial Court as it touches on the Court?s competence to determine the issue before it. Counsel cited Fabiyi v. Adeniyi (2000) 5 SC 31 at 42; Durwode v. The State (2001) 7 WRN 50 SC; Elugbe v. Omokhafe (2004) 18 NWLR (PT. 905) 319 SC; Akintaro v. Eegungbohun (2007) 9 NWLR (Pt. 1038) 103 CA.
Respondents? Counsel argued that when dealing with limitation of action, the opposing party ought to specifically plead it as a bar. Counsel cited Gulf Company (Nigeria) Limited v. Chief Ometa Oluba & Anor (2003) FWLR Part 145 at Page 712 at page 714 Para. F
?
Counsel argued that the defence of limitation was not pleaded by the 1st Appellant. This is because by virtue of Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules 2000, the Appellants ought to
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specifically plead that the Respondents? action has been caught by the provisions of the Public Officers Protection Act.
Counsel argued that it is a cardinal rule of pleading that specific matters as limitation law has to be expressly pleaded. Counsel argued that once the issue of limitation law isn?t pleaded, the Court would usually not grant its benefits so as to avoid the springing of surprises and acting against the rule of pleadings. Counsel further argued that the defence of time limitation cannot be subject to speculation or inference. Counsel cited Ishola Balogun Ketu & Anor v. Chief Wahabi Onikoro & Ors (1984) 10 SC Page 264 at Page 267-286; Oyebamiji v. Lawanson (2008) 7 SCNJ Page 176 at Page 182, Para. 5-15.
Counsel submitted that a special defence available at the time of an action must be specifically pleaded and where it is not pleaded, it cannot be raised on appeal. Counsel cited United Bank for Africa PLC v. BTL Industries Ltd (2007) All FWLR Pt. 352 Page 1615 at Page 1628 Para. D; Kano v. Oyelakin (1993) 3 NWLR Pt. 282 Pg. 399; Akintola v. Balogun (2000) 1 NWLR Pt. 642 Page 532; Atta v. Ezeanah (2000) 11 NWLR Pt.
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679 Pg. 363; FCDA v. Naibi (1990) 3 NWLR Pt. 138 Page 270.
Counsel further submitted that a party who challenges the competence of a Court on the basis of certain facts but fails to put them in issue stands the risk of being preempted from reopening those issue of facts when proceedings have been brought to a final conclusion. Counsel cited Mobil Producing Nigeria Unlimited v. Lagos State Agency & Ors (2003) FWLR Pt. 137 Pg. 1029 at Pg. 1038-1039 para. D-E; Kwaa v. Kwakwa 3 [WACA] at Pg. 176.
In his reply brief, learned Appellants? Counsel argued that it is settled law that either the Court or any of the parties can raise jurisdictional issues at any stage of the proceedings. Counsel argued that jurisdiction is the foundation of all proceedings and where it is found wanting, no valid proceedings can be conducted. Counsel cited AGF v. Sode (1990) 1 NWLR Pt. 126, Pg. 200 at 54, Ogunmokun v. Mil ad Osun State (1999) 3 NWLR 594, Pg. 261 at 265, Galadima v. Tambai (2000) 6 SC Pt. 1 Pg. 196 at 206-207.
?
Counsel further argued that the issue of statutory bar relates to jurisdictional issues and so can be raised at any time and stage of the
7
proceedings and even for the first time at the apex Court. Counsel cited Agi v. Eno (2000) 5 NWLR Pt. 1188 626; Bank of the North v. Gana (2006) All FWLR Pt. 296, Pg. 862; Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319 SC; Akintaro v. Eegungbohun (2007) 9 NWLR (Pt. 1038) 103 CA.
Counsel argued that the issue before the Court was whether the Respondents? action was statute barred at the time the action was instituted at the lower Court. Counsel argued that the provision of Section 2(a) of the Public Officers Protection Act limits the time in which an action can be brought against a public officer.
OPINION
The contention of the parties borders on the stage in a suit when the issue of time limitation can be raised. Generally, it should be noted that limitation laws operate to forestall the right to access judicial process in enforcing a right or claim against another party. The cornerstone of the doctrine is premised upon the notion of vigilance. To this extent, where a statute has made provision for the period within which an action can be instituted, failure to commence same within the stipulated period will render the legal proceeding
8
invalid. See Udoh & Ors v. Akwa Ibom State Government & Anor (2013) LPELR-21121(CA).
The issue of time limitation is inextricably linked with the question of jurisdiction. Jurisdiction forms the basis of the Court?s authority to adjudicate on a case effectively. It has been described as the live blood, threshold issue, bedrock, fundamental and crucial foundation, heartbeat and extrinsic cornerstone of a legal proceeding. See Ufondu v. Williams & Anor (2014) LPELR-23025 (CA). Usually, any action found wanting on jurisdictional basis is a nullity. Thus, because of its fundamental nature, the notion of jurisdiction underscores any legal action brought before a Court.
Although it is incorrect to say that a Court lacks jurisdiction simply because an action was instituted outside a limitation period, the jurisdiction of a Court to entertain a matter will be deprived only after the plea of limitation has been successfully raised and upheld. See Obatuga & anor v. Oyebokun & Ors (2014) LPELR-22344 (CA); Adetula v. Akinyosoye & Ors (2017) LPELR-42130 (CA). Thus, it is inevitable for a Court?s jurisdiction to be affected
9
when an action is caught up by limitation law.
Being a question that calls the Court?s jurisdiction to entertain a matter into question, it is trite law that issues which affects the jurisdiction of a Court can be raised for the first time on appeal. See Adegbola & Ors v. Idowu & Ors (2017) LPELR-42105 (SC); Lafia Local Government v. Executive Govt. Nasarawa State & Ors (2012) LPELR-20602 (SC); Civil Service Commission & Anor v. Akwa Ibom State Newspaper & Anor (2013) LPELR-21138 (CA); Akinsanya & Ors v. Shoneye & Ors (2016) LPELR-41939 (CA).
The learned Counsel for the Respondents made an issue of the Appellants? Counsel failure to specifically plead the issue of time limitation in his pleadings at the trial Court. I do not agree with learned Respondents? Counsel that the Appellants has to comply with Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules 2000 which provides that the issue of time limitation has to be specifically pleaded. It has been held in plethora of cases that rules of Court are meant to be subservient to statutory provisions and not vice versa. See Katto v. CBN
10
(1991) LPELR-1678 (SC); Elabanjo & Anor v. Dawodu (2006) LPELR-1106 (SC); Afribank (Nig) PLC v. Akwara (2006) LPELR-199 (SC).
While making pronouncement on a similar issue, the Supreme Court held in Forestry Research Institute of Nigeria v. Gold (2007) LPELR-1287 (SC) per Mukhtar JSC, Page 13-14, Para. C-A as follows:
?Learned counsel referred to the provision of Order 25 Rule 6(1) of the Oyo State High Court Civil Procedure Rules of 1988, which stipulates thus:
“6(1) A party shall plead specifically any matter for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”
There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The appellant in this case, realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after
11
leave was obtained.? (Underlining mine)
Also, in Kensal Farms Ltd & Anor v. Nigercat Construction Company (2013) LPELR-20162 (CA) Page 10-19, Para. E-E, copious opinion on the issue as canvassed by the Respondents? Counsel was rendered as follows:
?I have considered the interesting arguments of both learned counsel on this issue. I must emphasise that the position of decision law has shifted dramatically from the days of UBRBDA v. Alka supra and Odubeko vs. Fowler supra where the Courts including the Supreme Court have held that rules of Court are meant to be obeyed and that the rule of Court providing that where a Defendant relies on a special defence, that defence must be specifically pleaded, failure to do so by the Defendant estops the Defendant from raising that defence.
The attitude of the Supreme Court in Odubeko v. Fowler as shown by Onu JSC was that onus is on the Defendant to plead and prove that the action instituted against him is statute barred? As I said earlier, the position of the Supreme Court had changed since I delivered the judgment in Omotosho v. B.O.N (2006) 9 NWLR Pt. 986 Pg.573 where I relied
12
on previous authorities to hold that the Defendant is obliged to plead the facts of the Plaintiff’s case being statute barred before it can rely on such a defence and that the rules of Court in that regard must be obeyed.
The position of the Supreme Court now is as stated in Elabanjo v. Dawodu (2006) 15 NWLR Pt.1001 Pg.76 and (2006) 6 – 7 SC 24. In the leading judgment delivered by Mohammed JSC, the Supreme Court held that the issue of limitation is one of jurisdiction, since if an action is statute barred then the Court has no jurisdiction to entertain same. His Lordship stated emphatically that a trial without jurisdiction is a nullity. At page 116 of the NWLR, the Supreme Court held per Mohammed JSC that:
“It is quite clear from these decisions of this Court that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be any delay in raising it. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore JSC puts it plainly thus:<br< p=””
</br<
13
?Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity? … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to this Court, a fortiori, the Court can suo motu raise it” It was also held that objection to jurisdiction can be taken on the basis of the writ of summons or statement of claim alone?I do not think that in the light of the new attitude of the Supreme Court that the issue of limitation or statute bar being one of jurisdiction, there is need to specifically plead it as it can be raised at any time even viva voce before the judgment.?
Similarly, in University of Jos v. Adam (2013) LPELR-20276 (CA), it was held Per Agbo JCA, Pg. 9-10, paras. E-D
“In F.R.I.N. v. Gold supra, Chukwuma-Eneh JSC raised the issue of non-compliance with the Rules of Court in pleading limitation statutes as special defence, the Supreme Court still held that limitation statutes vacated causes of action when breached and being an issue of jurisdiction can be
14
challenged for the first time on appeal. This was again reiterated by Mukhtar J.S.C (as she then was) in Olagunju v. PHCN supra p.128 when she said – “If a statute provides a time limit for the initiation of an action in Court and that time was elapsed, such action becomes otiose with the effluxion of time.” At page 129 she said further – “It is a fact that the defendants did not give specific particulars of the defence the raised in paragraph 12 of their amended statement of defence which the learned counsel for defence has made heavy weather on. The fact still remains that it was matter of jurisdiction which could have been raised even in this Court for the first time.” The importation of the principle or doctrine of waiver in jurisdictional issues is yet to take hold in our jurisdiction. The suit at first instance having been taken more than 5 months after the cause of action had arisen, the cause of action had gone stale and fallen foul of Section 2(a) of the Public officers Protection Act.”
In Elabanjo v. Dawodu (2006) 15 NWLR Pt. 1001. Pg. 76, the Supreme Court went as far as to say that being a jurisdictional issue, statute bar can be raised on
15
appeal without leave of Court first sought and obtained to raise a fresh issue on appeal. That is the current position of the law.
Thus, the Respondents? Counsel argument cannot be tenable because the issue deals with a jurisdictional question which is termed as the life-wire of any adjudication. I therefore agree with the Appellants? Counsel that the issue of limitation can be raised for the first time on appeal.
This issue is resolved in favor of the Appellants.
ISSUE TWO
2. Whether in law and fact, the action is statute barred.
Appellants? Counsel argued that any action against any person for any act done in pursuance of executing a law or a public duty or authority with respect to neglect or default in the execution of such law, duty or authority can only be commenced within three months of the neglect or default complained of. Counsel cited Section 2(a) of the Public Officers Protection Act 2004; Ofili v. CSC (2008) FWLR (Pt. 407) P. 27 at 481-433. Counsel argued that the commencement of any action outside the stipulated 3 months period is not maintainable at law. Counsel cited Eboigbe v. NNPC (1994) 5 NWLR
16
(Pt. 345) Pg. 659.
Counsel argued that the crux of the action was the Respondents? termination from the 1st Appellants? employment through a termination letter dated 29th March, 2007 to be effective from 31st December, 2006. Counsel argued that the Respondents commenced the action before the trial Court on the 21st of January, 2008 which is outside the 3 months statutory period. Counsel argued further that time begins to run the day the cause of action arose. Counsel cited Jallco Limited v. Owoniboys Technical Services Limited (1995) 4 NWLR Pt. 391 Pg. 534 at 538 SC; Asaboro v. Pan Oil Nig Ltd (2006) 4 NWLR Pt. 971, Pg. 595, CA. Counsel argued that a legal right isn?t a perpetual right and so a cause of action would be statute barred if legal proceedings aren?t commenced within the laid down period in limitation laws. See Adeosun v. Jibesin (2001) 14 WRN 106 CA.
Counsel argued that Courts cannot extend the time imposed by statutes, decrees and edicts in respect of time limitation. Counsel cited Akinnuoye v. Mil Adm. Ondo CA at 566-567 (1997) 1 NWLR Pt. 483 P. 564.
?
Counsel argued that assuming but without conceding that the
17
Respondents termination was effective from the date on the letter which is 29/03/2007 as against 31/12/2006, the three months statutory period required by law would have expired.
Counsel argued that the failure to commence the action within the three months statutory period rendered the action statute barred and the cause of action unenforceable since the right has been extinguished by statute. Counsel cited Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 548) 37; Ogoja LGC v. Offoboche (1996) 7 NWLR (Pt. 488) 48; Sanda v. Kukawa LG (1991) NWLR (Pt. 179) 379; Ogunko v. Shelle (2004) 6 NWLR (Pt. 868) P. 17; Osun State Govt. v. Dalami Nig. Ltd (2007) All FWLR Pt. 365 Pg. 438 SC.
Learned Respondents? Counsel conceded that a claim can only be commenced within a statutory time period and any action instituted outside the said time has become statute barred. Counsel cited Central Bank of Nigeria v. Jacob Olabele Amao (2007) All FWLR Pt. 351, Pg. 1495, Para. A-B. Counsel argued that Section 2(a) of the Public Officers Protection Act placed a bar of three months on any action, prosecution or proceedings and so an injured person would have no
18
cause of action as his right would have been extinguished by law. Counsel cited Olaleye Fajimolu v. University of Ilorin (2007) All FWLR Pt. 350 at Pg. 361, Para. B. Counsel further argued that the legality of an action complained of cannot be in issue where a cause of action was instituted within three months.
Counsel submitted that a cause of action is the fact or combination of facts that gives rise to an action and the right to judicial reliefs. Counsel further submitted that it is a bundle or aggregate of facts which is recognized by law and which gives the substantive right for a claim to be made against the relief or remedy sought. Counsel cited Julius Berger Nigeria Plc v. R.I Omogu (2000) FWLR Pt. 64, Pg. 305 at 317, Para. G. Counsel submitted further that every material fact that requires proof, would entitle a Plaintiff at trial to succeed and is also necessary to give a right of relief in law and equity amounts to a cause of action. Counsel cited Akilu v. Fawehimi (No. 2) (1989) 2 NWLR Pt. 102, Pg. 122. Counsel further submitted that a cause of action is usually considered in relation to the particular act of a Defendant which forms the basis
19
of a Plaintiff?s complaint. Counsel cited Afolayan v. Ogunrinde (1990) 1 NWLR Pt. 127 at 373.
Counsel submitted that the Statement of claim has to be examined so as to identify the factual situation stated by the Respondents, which if substantiated, would afford the Respondents remedy against the Appellants. Counsel argued that in giving consideration to the factual situation, recourse would be had to events which may have occurred or circumstances which would constitute a grievance when the cause of action accrued when completed as no cause of action can be said to have accrued where the events are not completed. Counsel cited HRN Oba M. Aroyinkeye & Ors v. James A. Awoyinka & Anor (2005) All FWLR Pt. 240 Pg. 1 at Pg. 8, Para. H-B; Haruna Bako Kolo v. First Bank of Nigeria Plc (2003) FWLR Pg. 1303 at Pg. 1305, Para. D-F; Farine v. Coker (2003) FWLR Pt. 181, Page 1755.
Counsel argued that to determine whether an action is statute barred, recourse must be had to the writ of summons and statement of claim so as to examine when the alleged wrong was committed. Thereafter, a comparison would be made between that time and the date the writ
20
was filed. Counsel further argued that if the time on the writ is beyond the time allowed by statute, it will be time barred. Counsel cited Oba J.A. Aremo II v. S.F. Adekanye & Ors (2004) All FWLR Pt. 224, Pg. 2113 at Pg. 2120, Para. G-H; Egbe v. Adefarasin (1987) 1 NWLR Pt. 47.
Counsel further argued that the event and circumstances were not complete at the time the Respondents filed their action. Counsel argued that going by paragraph 9 of the Respondents? statement of claim, a meeting was held by the Respondents and the Managing Director of the 1st Appellant where confirmation was given to the fact that the Respondents were entitled to be paid three months? salary in lieu of notice. Counsel further argued that up until 21/1/2008 when the action was filed, the Managing Director of the 1st Appellant never refuted the fact that they were entitled to be paid three months? salary in lieu of notice and so the action cannot be said to be statute barred.
?
Counsel further argued that apart from the general traverse in the Appellants? statement of defence, the facts as contained in paragraph 9 of the statement of claim is deemed
21
to have been admitted by the Appellants because it was not specifically denied by them.
Counsel then submitted that in this case, the act that should determine when the cause of action arose had not been completed. This is because at the time the action was instituted by the Respondents, they had not received any feedback from the Managing Director of the 1st Appellant.
In his reply brief, Appellants? Counsel argued that the wordings of the statute relied upon is mandatory and as a condition precedent, failure to comply with it ousts the court?s jurisdiction.
?
Counsel further argued that the period the severance letter was issued on 5/4/2007 and 21/1/2008 when the writ of summons was filed isn?t less than 9 months. Counsel further argued that the damage had already been done from 5/4/2007 where it would have been expected that the Respondents would have taken action before a Court of competent jurisdiction as provided by law. Counsel further argued that the dialogue between the Respondents and the Appellants was just a mere meeting that does not affect the time within which the cause of action arose as they decided to
22
alternative means of settling the matter. Counsel then submitted that the Respondents claim was filed after the expiration of the time stipulated by law. Counsel cited Eboigbe v. NNPC (1994) 7 NWLR Pt. 347 Page 652-3; Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 247; NPA Plc v. Lotus Plactic Limited (2001) All FWLR Pt. 297 at 1023.
Counsel argued that it is settled law that facts admitted need no proof and that the Respondents requesting for 3 months salary in lieu of notice is an admission that the cause of action arose on 5th April, 2007. This is because the Respondents request for the payment of 3 months? salary in lieu of notice resulted from the issued severance letter that was made without notice. Counsel cited Sanda v. Kukawa LG (1991) 2 NWLR Pt. 174, Pg. 379; Odubeko v. Fowler (1993) 7 NWLR Pt. 308, Pg. 637; NNPC v. Eshiet (2018) LPELR-43681.
OPINION
The crux of the argument under this issue is predicated upon the time the cause of action arose for the purpose of determining whether or not the action is statute barred under the Public Officers Protection act of 2004. Section 2(a) of the Act provides as follows:
?Where any
23
action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.?
The above stated provision placed a time restriction for commencing an action against any public officer. Although subject to certain exceptions which includes an act of criminal liability, the provision of Section 2(a) of the Public Officers Protection Act operates as a statutory time limit against any person
24
who wishes to maintain an action against a public officer or authority. See Nasir v. Civil Service Commission Kano State & Ors (2010) LPELR-1943 (SC).
The effect of the former is to extinguish any right that is commenced out the period of three months. See Sulgrave Holdings Inc & Ors v. Federal Government of Nigeria & Ors (2012) LPELR-15520 (SC); Ibrahim v. Lawal & Ors (2015) LPELR-24736 (SC);INEC v. Ogbadibo Local Govt & ors (2015) LPELR-24839 (SC). This is because when an action is statute barred, a person may have the legal right to a cause of action but the right to judicial remedy is voided as no proceeding can be brought in respect of the action. See AG. Adamawa State & Ors v. AG. Federation (2014) LPELR-23221 (SC).
It is trite law that for the purpose of determining when an action is caught up with time limit, recourse is often had to the day the cause of action arose. See ACN & Anor v. INEC & ors (2013) LPELR-20300 (SC); Iweka v. SCOA (Nig) Ltd (2000) LPELR-1563 (SC). A cause of action refers to facts which if proved, would entitle a person to a remedy against another. It is a right of action which entitles
25
a person to right of relief. See Ag. Adamawa State v. AG Federation (2014) LPELR- 23221 (SC).
Usually, a cause of action matures from the period an act or a breach of duty causes an injury towards the legal right of a person. See Woherem v. Emereuwa & Ors (2004) LPELR-3500 (SC). And in giving consideration to this, regards will be had to the existence of a person who can sue and another who can be sued, as well as the conclusion of facts material in proving the success of a person whose right has been alleged to have been breached. See Adigun v. Ayinde & Ors (1993) LPELR-678 (SC); Williams v. Williams (2008) LPELR-3493 (SC); Jallco v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547. Thus, the moment a wrong has been occasioned to a person through the act or inaction of another person, a cause of action is said to have arisen. See Adekoya v. Federal Housing Authority (2008) LPELR-105 (SC); Woherem v. Emereuwa & Ors (2004) LPELR-3500 (SC).
It is well settled law that the writ of summons and the statement of claim are used to ascertain whether there is the existence of a cause of action. The Plaintiff has to show
26
from his pleadings that he possess a cause of action against the defendant. And in order to consider when a cause of action arose for the purpose of limitation law, the filing date of the writ of summons is compared with the period the alleged injury or wrong took place. See Odebiyi v. Wema Bank Plc & Ors (2014) LPELR-22993 (CA).
As rightly held by the learned trial judge on page 147 of the record, it is an undisputed fact that the Respondents received severance letters from 1st Appellant on 5/4/2007. Paragraph 4 of the Respondents? statement of claim which can be found on page 9 of the record revealed this fact. The said paragraph is set out below:
4. In or about 5-4-2007 Plaintiffs and some other workers of the 1st Defendant were each served with a letter captioned ?severance letter? dated the 29-3-2007. By the said letter dated 29-3-2007, Plaintiffs were informed that they had been retired from the employment of the 1st Defendant effective from 31st of December, 2006. Plaintiffs will at trial rely on one of such letters issued to them. Notice is hereby given to the 1st Defendant to produce the original of the said letter
27
at the trial of this action.
Similarly, this fact was admitted by the Appellants in paragraph 3 of their statement of defence which can be found on page 26 of the record clearly set out below:
3. The 1st defendant admit paragraph 4 of the statement of claim to the extent that the plaintiffs were served with severance letters in accordance with the Federal Government policy on public service reforms, and the original copies of the severance letters was issued to the plaintiffs.
Also, page 7 of the record showed the fact that the writ was filed on 21/1/2008.
Without doubt, the Respondents never denied the day the severance letters were served on them. The crux of the Respondents? argument is premised upon the fact that the cause of action cannot be said to have arisen on 5/4/2007 because negotiations were ongoing between them and the management of the 1st Appellants? company who never gave them a feedback as to the status of the negotiations. And as a result, the factual situation required for a cause of action to arise had not been completed.
?Generally, for the purpose of determining the day of accrual for a
28
cause of action, consideration will be given to when injury was occasioned to a person?s legal right which would otherwise have entitled him to sue. See Arum v. Egbo (2016) LPELR-41542 (CA). And in order to determine this, it is firmly established that for the purpose of computing a limitation period, negotiation cannot preempt time from running for the purpose of determining when a cause of action arose. This was held by the Supreme Court in Eboigbe v. NNPC (1994) LPELR-992 (SC) per Adio JSC, Page 13-14, Para. F-B as follows:
?As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease merely because the parties engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest and right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which
29
should have be taken into consideration for the determination of the question whether a claim has been statute-barred. Negotiation by parties does not prevent or stop time from running.?
Also, this Court in Essien v. Cross River State Civil Service Commission & anor (2014) LPELR-23527 (CA) at Pg. 21-22, Para. E-D, per Nweze JCA (as he then was) had this to say:
?Whether it is negotiation or appeal, the fact is that such factors do not impugn on the limitation period ordained in the law. Eboigbe v. NNPC (supra); Odubeko v. Fowler (supra); Sanda v. Kukawa Local Government (supra) and of this Court, NBN Ltd v. A.T. Eng Co. Ltd (2006) 16 NWLR (Pt. 1005) 210; Ibeto Cement co Ltd v. AG Fed (2008) 1 NWLR (Pt. 1069) 470. By the clear averments in the statement of claim, the Appellant 2 chose to first pursue and exhaust internal administrative remedies, paragraph 4-09 of the appellant?s brief, before taking out his writ against the respondent. We invited Adio JSC to advise the appellant on the proper cause he should have embarked upon; the best cause for a person to whom a right has accrued is to institute an action against the other
30
party so as to protect his interest or right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has been statute-barred. Eboigbe v. NNPC (Supra) 659, Per Adio.?
See also AG. Adamawa State & Ors v. AG. Federation (2014) LPELR-23221 (SC); Okoro v. Osim & Ors (2012) LPELR-14420 (CA); SPDC v. Ejebu & Anor (2010) LPELR-5025 (CA).
Going by the above decisions, the Respondents? Counsel argument as to the day of accrual for the cause of action cannot fly. I agree with Appellants? counsel that the cause of action arose on 5/4/2007 being the day the existence of facts that occasioned injury to Respondents occurred and was completed. The fact that the Respondents decided to opt for reconciliatory measures doesn?t stop time from running. Thus, a cursory look at the date the writ of summons was filed which was 21/1/2008 and the day the cause of action arose which was
31
5/4/2007 would reveal that the three months period for instituting an action against a public officer had lapsed. To this extent, the action is said to be statute-barred and the suit is left bare with nothing to stand on because the Public Officers Protection Act which is a statute of limitation had obviated the Respondents? right to enforce their cause of action.
In the circumstances of this case, having decided that the action is statute barred, it is liable to be struck out being spent. Accordingly, this issue is resolved in the Appellants? favour.
In the event that I am wrong in respect of the resolution of this issue, this is the penultimate Court and it is incumbent on us to decide all issues brought before us in order to ensure that in event of an appeal, the apex Court is given an opportunity to see the decision of this Court on that point in order to review same.
ISSUE THREE
3. Whether the learned trial judge was right to grant the claims of the Respondents?
Learned Appellant Counsel argued that before arriving at a decision, Courts are to examine the material issue of facts placed before them.
32
Counsel argued that it was through the evidence tendered through the Appellants? sole witness that the learned trial judge held that based on the Public Service Rule 2006 which was the extant rule when the cause of action arose, there was nothing suggesting the fact that the Respondents were entitled to three months salary in lieu of notice. Counsel argued that it does not accord with justice for the trial judge to hold in another vein that the Respondents were entitled to the 15% increment on their salary for the period of January to March when the severance letter took effect from 31st December, 2006.
Counsel argued that the orders made by the learned trial judge had no connections with the facts and evidence presented. Counsel further argued that a Court of law has no jurisdiction to speculate on conjectures as it must confine itself to the evidence before it. Counsel cited Ezezie v. Aminu (2008) 34 NSC or 1004
Counsel further submitted that the decision of the trial Court was perverse as the evidence was not evaluated on the basis of the available material facts before the Court.
Learned Respondents Counsel argued that it is the primary
33
duty of a trial Court to consider the totality of the evidence before it in order to determine whose favour the scale of justice tilts towards. Counsel argued that where that has been done by the trial judge, the Appellate Court cannot tamper with its evaluation. Counsel cited Chief Fatai Fatuga v. Chief E.O Aina & Ors (2008) All FWLR Pt. 398 pg. 394 at Pg.396, Para. H-B.
Counsel argued that the trial Court had the advantage of assessing the demeanor of the witnesses upon which the trial Court exercised its exclusive prerogative which no appellate Court can interfere with, in ascribing weight to the evidence adduced. Counsel cited Adamu v. Mohammed Gbedu & Ors v. Joseph I. Itie & Ors (2011) All FWLR Pt. 553, Pg. 1857 at 1866, Para. D-G; Nteogwuile v. Otuo (2001) FWLR Pt. 68 Pg. 1072; Owie v. Ighiwi (2005) All FWLR Pt. 248, Pg. 1762; Ajao v. Ademola (2005) All FWLR Pt. 256 at Pg. 1239. Counsel submitted that an Appellate Court cannot re-evaluate evidence of witnesses as an excuse for interfering with the findings of a trial Court. Counsel further submitted that an Appellate Court can only interfere with the findings of a trial Court where it is
34
perverse or violated some principles of law and procedure. Counsel cited Engineer Emmanuel Osolu v. Engineer Uzodima Osolu & Ors (2003) FWLR Pt. 172, Pg. 1777 at 1781.
Counsel argued that the findings of the learned trial judge that the Respondents were entitled to the 15% increase in the salary of all Federal Civil Servants was based on pleaded evidence and should therefore not be interfered with by the appellate Court. Counsel cited Ali Lawan v. Hon. Maina Yama & Ors (2004) All FWLR, Pt. 229 at Pg. 874 at 876, Para. F-G; Adeye v. Adesanya (2001) FWLR Pt. 41, Pg. 1849; Agidigbi v. Agidigbi (1992) 2 NWLR Pt. 221 Pg. 98; Balogun v. Agboola (1974) 10 SC at Pg. 111; Maurice Ibekwe v. Federal Republic of Nigeria (2004) All FWLR, Pt. 213, Pg. 1780 at 1789, Para. D; Ehibogwu v. State (2001) 4 NWLR Pt. 703, Pg. 267.
Counsel submitted that this Court should re-affirm the judgment of the lower Court as the orders made by the learned trial judge was in line with the pleadings and evidence adduced which does not amount to speculation.
Appellants Counsel in his reply brief argued that Courts are not allowed to approbate and reprobate in
35
evaluating evidence placed before it as doing so would lead to miscarriage of justice.
Counsel further submitted that where evidence isnt evaluated on the basis of material facts before arriving at a decision, such judgment would be categorized as being perverse.
OPINION
The Appellants Counsel predicated his argument upon the improper evaluation of the evidence placed before the trial Court in arriving at its judgment.
On page 148-149 of the record, the learned trial judge held as follows:
I have carefully perused the provisions of Chapter 2, Section 8 which is applicable to the 1st Defendant by virtue of Rule 160401 of the said Public Service Rules 2006, and by Rule 020810, the compulsory retirement age of all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. However, by clause 7 of the Schedule to Chapter 2 of these rules, the Government may at any time terminate the engagement of the person engaged by giving three months notice in writing or by paying one month?s salary in lieu of notice.
Based on the foregoing, there is nothing to suggest that the
36
plaintiffs were entitled to be paid three months salary in lieu of notice based on the Public Service Rules 2006 which was the applicable Rule at the time the cause of action arose. See generally MATANMI VS. GOVT. OGUN STATE (2004) 5 NWLR (Pt. 806) 255; AREMO II VS. ADEKANYE (2004) 13 NWLR (Pt. 891) 572; OBASANJO VS. YUSUF (2004) 9 NWLR (Pt. 877) 144.
As already pointed out above, the Plaintiffs were served with severance letters on the 5th day of April 2007. They had worked as staff of the 1st Defendant between 1st January 2007 and 1st April 2007, and they had no knowledge that they had been penciled down for disengagement as part of the Public Service Reform Programme. The severance letter itself is dated 29th March 2007, and the retirement was said to have taken effect from 31st December, 2006, 3 months before the severance letter was written and served on the Plaintiffs. In fact the advice by the Bureau of Public Service Reforms to the 1st Defendant to issue severance letters was itself dated 28th March, 2007. In the circumstances, is it justifiable for the plaintiffs not to enjoy the 15% salary increment made by the Federal Government of Nigeria to all
37
public civil servants while they were still in active service of the said Federal Government of Nigeria? Does this accord with common sense and justice? I humbly do not think so.
The contention of the Appellants? Counsel that the learned trial judge cannot hold that the Respondents were entitled to the 15% increase on the salary of all Federal Government workers is faulty. This is because when Exhibit P1, the severance letters were issued, the Respondents were still in the employment of the 1st Appellant. Also, Exhibit D4 which is the circular for the implementation of consolidated Federal Government salary structure for the year 2007 took effect from 1/1/2007 when the Respondents were still in service.
Learned Appellants Counsel misconceived the point when he said the learned trial judge approbated and reprobated the fact that the Respondents were respectively entitled to the payment of one month?s salary in lieu of notice and also to the 15% increment in their salary from the period of 1/1/2007 to 5/4/2007. This is because based on the Public Service Rule of 2006 which was the extant rule when the cause of action arose,
38
the procedure for disengaging a person from the public service is by giving a notice of three months in writing or the payment of a month?s salary in lieu of notice. This differs materially from the question of whether the Respondents should be entitled to the 15% increment on their salary. More so, the Appellants Counsel?s argument that it amounts to injustice for the learned trial judge to hold that the Respondents were entitled to a 15% increase on their salary when their disengagement took effect from 31st December, 2006 cannot hold water. It is trite law that the termination of a contract of employment cannot have retrospective effect. In Underwater Engineering Co. Ltd & Anor v. Dubefon (1995) LPELR-3379 (SC), Page 11-12, Para D-B, the Supreme Court per Ogwuegbu JSC held as follows:
“The next question is whether the dismissal or termination of the respondent with retrospective effect was proper. In which case, he would not be entitled to remuneration from May to October, 1982. The contract was oral and the respondent’s basic annual salary is N4,800.00 at N800.00 per month. His salary became due and his right to it vested at the end of
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each month. The respondent’s employment was in fact existing up to 12th October, 1982 when he was told that his services were no longer required. The right of the appellants to terminate the employment by reason of antecedent misconduct which was known to the appellants all along and for which the respondent had been tried and acquitted did not entitle them to treat the contract of employment as having been determined in May, 1982. The respondent was therefore entitled to recover his salary up to 12th October, 1982. I agree with the Court below that the effective date of the respondent’s dismissal was 12th October, 1982 and not earlier. See Healey v. Societe Anonyme Francaise Rubastic (1917) 1 K.B. 946.”
In Nnadi v. National Ear Care Center & Anor (2014) LPELR-22910 (CA) per Per Ita George Mbaba, J.C.A Pg. 23-24, Para. C, it was also held as follows:
“I do not think that in an employment with statutory flavour, a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st
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Respondent in this case, in complete disregard of the procedures stipulated in the conditions of service governing the contract of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously guarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice (usually, one month) or salary in lieu of the notice. To remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made there under, is to act capriciously and to destabilize the security of tenure of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and well being of the society. This, of course, does not include tenure of service in political appointments. See the case of NBTE vs Anyanwu (2005) All FWLR (Pt. 256) 1266; Kwara State Polytechnic, Ilorin vs Shittu (2013) 17 WRN 78; (2012) LPELR-9843 (CA); Olaniyan vs University of Lagos
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(2001) FWLR (Pt. 56) 778.” (Underlining mine).
In view of the foregoing, although on the substance of the case, the appeal has merit, however, having resolved the first and second issues in favour of the Appellants, the Respondents having lost their right to judicial intervention and adjudication of their claim, their action being statute barred, the claim at the trial Court is struck out.
Appeal allowed. No order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
I am in total agreement with the reasoning and conclusion therein that the appeal is meritorious and ought to be allowed. I hereby allow this appeal and strike out the claim at the trial Court.
I abide by the order as to cost in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA. I am in full agreement with the reasoning and conclusion therein.
?I agree that this appeal has merit. I
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also agree that the claim at the lower Court was statute barred and deserved to be struck out.
?I abide by the order as to cost in the lead judgment.
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Appearances:
D.J. Haruna Esq.For Appellant(s)
Sir Victor E. Akpoguma with him, E. A. Akpoguma, Esq. and O. M. EsievoadjeFor Respondent(s)
Appearances
D.J. Haruna Esq.For Appellant
AND
Sir Victor E. Akpoguma with him, E. A. Akpoguma, Esq. and O. M. EsievoadjeFor Respondent