OLAWOLE AKINBODE V. CHIEF REGISTRAR (High Court of Oyo State of Nigeria) & ORS
In The Court of Appeal of Nigeria
On Thursday, the 21st day of March, 2002
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
OLAWOLE AKINBODE Appellant(s)
- CHIEF REGISTRAR (High Court of Oyo State of Nigeria)
2. JUDICIAL SERVICE COMMISSION OF OYO STATE OF NIGERIA
3. CHIEF REGISTRAR (High Court of Osun State of Nigeria, Osogbo)
4. JUDICIAL SERVICE COMMISSION OF OSUN STATE OF NIGERIA Respondent(s)
ONALAJA, J.C.A. (Delivering the Leading Judgment): The plaintiff now appellant in this judgment commenced the action that has resulted in this judgment at the Ilesa High Court of Osun State holden at ILESA with issuance of a writ of summons against the 1st, 2nd, 3rd and 4th defendants (now referred to in this judgment as 1st, 2nd, 3rd and 4th respondents) jointly and severally as follows in paragraph 37 of the statement of claim:-
The plaintiff therefore claims against the defendants jointly and severally the following reliefs:-
1(i) Declaration that the letter dated 28/3/88 from the Judicial Service Commission of Oyo State informing the plaintiff that he had been dismissed from the service of Oyo State Judicial Service from 25/3/88 is null and void as being retrospective and contrary to the OYO/OSUN STATES PUBLIC SERVICE REGULATIONS and the Constitution of the Federal Republic of Nigeria.
(ii) Declaration that the plaintiff being an indigene (sic indigine) of Osun State is still an officer in the judicial service of Osun State of Nigeria.
(iii) An order on the defendants that the plaintiff be paid all his salaries with all due increments from 25th day of March, 1988 to date in accordance with Osun State Public Service Regulation.
2.2. An order on the 4th defendant to reinstate the plaintiff into the Judicial Service of Osun State of Nigeria.
The writ was filed at the High Court Ilesa on 26th day of April, 1994.
I have relied on paragraph 37 of the statement of claim based on the accepted principle of law in our civil jurisprudence that the claims formulated in the statement of claim supercede the claims endorsed in the writ of summons. J. O. Lahan v. Chief Lajoyetan (1972) 1 All NLR (Pt. 2) 217,1972 6 SC 190; Ezekiel v. Wesminister Dredging Ltd. (2000) 9 NWLR (Pt. 672) 248 CA; Onyero v. Nwadike (1996) 9 NWLR (Pt. 471) 231 CA; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 SC.
After service of the writ of summons pleadings were filed, delivered and exchanged between the parties. Appellant filed a 37 paragraph statement of claim. The 3rd and 4th respondents jointly filed notice of preliminary objection that the action was statute barred and ought to be dismissed. In addition 3rd and 4th respondents jointly filed a six paragraph statement of defence.
The appellant averred in paragraph 33 of the statement of claim as follows:-
“33. The plaintiff avers that he had written about three letters of appeal for re-instatement because his dismissal from Oyo/Osun State Judicial Service was unconstitutional and wrongful. All his appeals were never considered.
The plaintiff shall rely on (i) letter of February, 1991 to then Military Governor of Oyo State. (ii) letter dated 12/12/91 to the Chief Judge of Oyo State and (iii) letter dated 27/12/91 to Chairman Oyo State Judicial Service Commission. Plaintiff also wrote to Osun State Judicial Service Commission. He will rely on letter dated 24/1/92 Ref. CROY/P.2309/236 from the Chief Registrar Ibadan; and letter dated 20/3/92 Ref. JSC/05/42/8 from Secretary Judicial Service Commission of Osun State. The plaintiff shall also rely on the letter dated 28/3/88 Ref. No.JSC/OY/C/7/136 which he received on 31/5/89.”
The 3rd and 4th respondents pleaded in paragraph 5 of the statement of defence thus:-
“5. The 4th defendant in reply to paragraph 33 admits that its secretary issues the letter ref. JSC/05/42/8”
The notice of preliminary objection was argued first. The 3rd and 4th respondents contended that the action was statute barred on the grounds that the 3rd and 4th respondents were public officers under every law relevant to the case and that the wrongful dismissal took place in or about 1988 which was beyond the 3 months statutory limits within which such actions could have been brought as averred in paragraph 25 of the statement of claim as follows:-
25. The plaintiff avers that he got a letter dated 28/3/88 Ref. No. JSC/OY/C/7/136 dismissing him from the service of Oyo State Judicial Service Commission. His dismissal was to take retrospective effect from 25/3/88. The letter is pleaded. The plaintiff avers that the dismissal letter referred to was based on an allegation of a CRIMINAL NATURE an offence for which he was never charged and tried before any court of competent jurisdiction.
In response to paragraph 25 of the statement of claim supra the 3rd and 4th respondents pleaded in paragraph 4 of the statement of defence thus:-
“4. The 4th defendant admits paragraph 25 of the statement of claim only to the extent that the letter of dismissal was issued after it had been established that the plaintiff’s case was one that deserved dismissal from service.
That by virtue of the interpretation Law Cap. 52, section 3 the 3rd and 4th respondents were public officers as decided in Atiyaye v. Perm. Sec., Borno State (1990) 1 NWLR (Pt.129) 728 at 736 paragraph 25 supra showed the time of dismissal which was beyond three months under the Public Officers Protection Act, 1990 as 3rd and 4th respondents were covered being public officers under section 2 of the said Act thereby the action was not maintainable, incompetent as the court lacked jurisdiction to entertain it. Ekeogu v. Aliri (1991) 3 NWLR (Pt.179)258. From the foregoing, appellant’s action be dismissed Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516 at 533.
The learned counsel to appellants submitted before the High Court on the issue of dismissal of the case on the preliminary objection that the submission of 3rd and 4th respondents lacked merit and should be dismissed. The Public Officers Protection Law did not avail respondents as the law by intention and judicial interpretations related to tortious action against public officers against injuries or damages personal in the execution of their duty and not based on contractual relationship. Ekeogu v. Aliri supra which was a case of tortious liability of assault.
The action was against respondents in their official capacity and not in their private capacity Atiyaye v. Permsec supra was irrelevant to the proceedings. That the relationship of the parties was governed under Labour Decree 1974 in particular by its section 79 and 80. By virtue of exhibits A, B and D the action had been revived therefore the application of respondents should be dismissed.
Respondents replied that exhibits A, B and D did not constitute a revival of the action.
In a considered ruling at pages 23 to 29 of the record of appeal the learned Judge after reviewing the contentions of the parties, the Public Officers’ Protection Law and legal authorities cited to him concluded that 3rd and 4th respondents were public officers and that exhibits A, B and D attached to the counter-affidavit of the appellant did not revive the action and concluded that as the action was not instituted within 3 months of the date of the dismissal of the appellant by 3rd and 4th respondents the action was statute-barred was accordingly dismissed it is the dismissal that generate this appeal.
Obviously, being dissatisfied with the said ruling appellant timeously filed a notice of appeal at pages 30 to 32 of the record of appeal. Appellant in paragraph 3 of the notice of appeal formulated Five grounds of appeal and in accordance with the rules of this court furnished the particulars. The notice of appeal was served on respondents. After the service on respondents, appellant filed in accordance with the rules of this court appellant’s brief of argument.
Based on the rule of practice of this court on brief writing in particular that the issues for determination must be based and correlate with the grounds of appeal, appellant formulated the issues for determination from the grounds of appeal as under at page 2 paragraph 5 in appellant’s brief of argument as follows:-
5. ISSUES WHICH ARISE IN THE APPEAL FOR DETERMINATION
The plaintiff respectively submits that the issues which arise for determination in this appeal can be summarized as follows:-
i. Whether the learned trial Judge was right to have applied the Public Officers Protection Act, 1990, when the incident complained i.e. dismissal of the appellant took place in 1988 at a time when the said Public Officers Protection Law, 1990 was nonexistent?;
ii. Whether the learned trial Judge was right to disregard the submission raised by the appellant’s counsel having regard to the additional written submissions filed on 17/1/95 and duly served on the respondents’ counsel;
iii. Whether it was right for the trial court to have applied the Public Officers Protection Act, 1990 thereby debarring the appellant seeking redress for wrongful dismissal when at that time, the Public Officers (Special Provisions) Act No. 17 of 1984 had in fact removed such powers from the defendants/respondents?.
iv. Whether the learned trial Judge was right to have disregarded the procedure as laid down in the Public Officers (Special Provisions) Act No. 17 Laws of the Federation of Nigeria 1984 which law was aimed at protecting Public Officers as individuals in the discharge of their public duties?.
v. Whether the trial Judge was right to have applied the Public Officers Protection Act, of 1990, when the respondents brought their motion for preliminary objection under and by virtue of Public Officers Protection Cap. 106 1978 Laws of Oyo State, a repealed legislation.
Respondents were served with appellant’s brief of argument they took a non chalant attitude towards the appeal. Respondents’ did not file respondents’ brief of argument. As a result appellant with the leave of this court sought and was granted leave to argue the appeal based on appellants’ brief of argument alone.
Upon the appeal coming up for argument appellant relied and adopted appellants’ brief of argument filed in this court on 10th June, 1996.
This appeal is going to be decided from appellants’ brief on a narrow compass after consideration of the grounds of appeal the issues based on them and the arguments advanced on the issues this court has encompassed all the five issues into a single issue:
“Whether this action based on contract of service or employment between the parties which was determined on 28th March, 1988 with the action for wrongful dismissal instituted on 26th day of April, 1994 was not statute barred more especially when there was no averment in the pleadings of the assignment of the rights and liabilities of Oyo State to Osun State thereby the claim was incompetent.
From the foregoing, the crux of this appeal is whether the cause of action was statute barred and thereby incompetent.
It is common ground that it was the letter dated 28/3/88 from Judicial Service Commission of Oyo State which informed appellant of his dismissal from the service of Oyo State Judicial Service from 25/3/88 that gave rise to this declaratory action to declare the said letter null and void being retrospective contrary to Oyo/Osun States Public Services Regulations and the Constitution of the Federal Republic of Nigeria and for reinstatement of appellant an indigene of Osun State as an officer in the Judicial Service of Osun State with claims for arrears of salaries with all due entitlements and averments from 25th day of March, 1988.
At the time the letter of 28th March, 1988 was written Osun State was an integral part of Oyo State until its creation and carved out of Oyo State that by the time appellant issued the writ and commenced this action on 26th April, 1994 Osun State had been created hence being an indigene of Osun State led to institution of action as set out in the writ and statement of claim against the four respondents.
It is common ground that the court and parties are bound by the pleadings as unpleaded facts go to no issue. Appellant pleaded the letter JSC/OY/C/7/136 dated 28/3/88 dismissing appellant from service of Oyo State Judicial Service Commission in paragraph 25 of the statement of claim. The statement of claim was ominously silent as to the creation of Osun State under the Constitution and that Osun State was assigned and succeeded to the rights and liabilities of Oyo State having not pleaded the succession and assignment of the rights and liabilities of Oyo State by Osun State the action against the 3rd and 4th respondents was incompetent as the assignment and succession to the rights and liabilities being material fact must be specifically pleaded to cloak the action to be competent against 3rd and 4th respondents, as competent parties must be before the court. As competence goes to the jurisdiction of the court it can be raised on appeal for the first time and suo motu by the Court of Appeal Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587, (1962) 2 SCNLR 341; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 SC; Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1SC; Ferdinand George & Anor. V US.A. (1972) 8/9 SC 264. On issue of the importance of succession to rights and liabilities and assignment Fatayi Williams, JSC (as he then was) stated in George & Anor. v. US.A. supra as follows:-
Plaintiffs’ pleadings averred that they were successors to British and French Bank. No assignment pleaded or particulars given. Held, allowing appeal, that since no assignment or particulars of assignment was pleaded by plaintiffs, the evidence adduced in support, even if adequate although in fact not adequate, goes to no issue and should have been discarded or ignored by learned trial Judge.
Applying George v. US.A. supra the action against 3rd and 4th respondents was incompetent and hereby set aside.
It is common ground that the relationship between the parties was contractual being contract of service or employment putting the case of appellant at the highest was that the letter of 28/3/88 was a breach of contract which contract had statutory flavour under States Public Service Regulation Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40, 40-41; Garba v. Federal Service Commission (1988) 1 NWLR (Pt. 71) 449 Sc. Appellant sought remedy for the breach by filing this action on 26th April, 1994.
The Limitation Law Cap. 64 Laws of Oyo State applicable in Osun State defines in section 2(1) Action includes any proceeding in a court of law.
Section 4(1) Limitation Law, Cap. 64, Laws of Oyo State provides as follows:-
4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say (a) actions founded on simple contract or on tort.
The rule of interpretation of statutes shall apply being the discovery of the intention of the draftsman through the words actually used, by looking at the words to discover whether they are ambiguous or not. Looking at section 4(1)(a) Limitation Law aforesaid they are not ambiguous therefore the ordinary plain, grammatical, natural meaning shall apply. Should this approach result in absurdity then the court shall call in Aid The Cannons Of Interpretation, The Popular Being (i) The Mischief Rule or The Rule in Heydons case (ii) The Literal Rule and (iii) The Golden Rule Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 402, SC; Toriola v. Williams (1982) 7 SC 27 at 47-48 SC; Chief Obafemi Awolowo v. President Shehu Shagari (1979) 6-9 SC 51 at 94, 96,105-106; Dr. Tunji Brathwaite v. Grassroot Democratic Party & Ors. (1998) 7 NWLR (Pt. 557) 307 C.A.
Applying the above authorities to the instant appeal having concluded after careful consideration that the words used in section 4(1)(a) Limitation Law, Cap. 64, aforesaid are not ambiguous the natural, grammatical, and ordinary meaning shall apply for the words used did not lead to absurdity. The breach of contract was on 28/3/88 whilst the action for the remedy of the breach was filed or commenced on 26th April, 1994 which was a period of more than six years when the breach occurred and accrued. The appellant’s action was caught by section 4(1)(a) Limitation Law, Cap. 64, aforesaid, there was a fundamental breach of the said section 4(1)(a) thereby it rendered the action incompetent having been statute barred Humbe v. A.-G. Benue State (2000) 3 NWLR (Pt. 649) 419 CA; Adekoya v. Federal Housing Authority (2000) 4 NWLR (Pt. 652) 215 CA; G and C Lines v. Olaleye (2000) 10 NWLR (Pt. 676) 613 CA.
The learned trial Judge was right to hold and conclude that this action was statute barred though he took a different route in reaching conclusion that the action was statute barred. The cardinal principle and essence of this court is to do trial justice according to law. Joseph O. Falobi v. Elizabeth (1976) 1 NMLR page 169 Sc. 1976 6-‘9 SC 1 wherein it Fatayi Williams, JSC. (as he then was) that:-
If a relief or remedy is provided for by any written law (or by the common law or in equity for that matter) that relief or remedy, if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law.
All the five issues formulated by appellant and the encompassed issue raised by the court are resolved against appellant that though in a circuitous way the learned Judge was right that the action of the appellant was statute barred therefore the appellant’s appeal lacks substance and hereby dismissed. The ruling of the lower court is hereby confirmed though on a different ground of law. As the respondents neither filed brief nor appear in this court there is no order for costs.
TABAI, J.C.A. I had the advantage of reading before now the leading judgment of my learned brother Onalaja, JCA. And I agree with the reasoning and conclusion therein. I also agree with the consequential orders including the order as to costs.
ADEKEYE, J.C.A. I had the privilege of reading in draft the judgment just delivered by my brother Onalaja, JCA. I reason in unison with the leading judgment that the germane aspect of the appeal is to determine whether the cause of action itself before the trial court was competent and maintainable – or was statute barred.
Cause of action means the facts or combination of facts which gives a person the right to judicial relief. The phrase is important as with reference most importantly to the limitation law and the jurisdiction of court. The cause of action is thereby determined by the plaintiff’s case. Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 S.C.; Omotayo v. NRC (1993) 7 NWLR (Pt. 254) 471; Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) S.C.; Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369; Sodipo v. Lemminkainen Oyo (1992) 8 NWLR (Pt. 258) 229; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637.
In deciding whether or not an action is caught by a statute of limitation the determining factors and questions raised are:-
1. Whether there is a cause of action?
2. When does the cause of action arise?
In the instant appeal, the facts reveal that there was a contract of employment in existence between the parties which contract was determined by a letter JSC/OY/C/7/136 dated 28/3/88, which emanated from the Oyo State Judicial Service Commission dismissing the appellant from its service. The appellant’s cause of action is therefore his dismissal from service which accrued on the 28th of March, 1988. Time began to run when the cause of action arose for the purpose of the limitation law. The letter dated 28/3/88 was a breach of the contract between the parties. The appellant thereupon filed an action in court for redress on the 26th of April, 1994.
The Limitation Law of Oyo State, Cap. 64, Laws of Oyo State, 1990 applicable in Osun State, where the appellant was deployed before his termination – section 4(1) reads:-
The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued that is to say –
(a) Action founded on simple contract or on tort.
This section is obviously applicable to the contractual relation of the parties. An action in contract must be filed within 6 years of the time when the cause of action arose. The cause of action in the instant appeal arose on the 28th of March, 1988 while the action in court was filed on the 26th of April, 1994. The time lag between the date the cause of action accrued and when the action was filed fall slightly outside the limitation period. By operation of law, this makes the action invalid, incompetent and unmaintainable. Julius Berger (Nig.) Plc v. Omogui (2001) 15 NWLR (Pt. 736) 401 SC; Humbe v. A.-G. Benue State (2000) 3 NWLR (Pt. 649) 419 CA; Bello v.A.-G. Oyo State (1986) 5 NWLR (Pt. 45) 828; Egbe v. Adefarasin (No 2) 1987 I NWLR (Pt. 47) 1; Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649.
It is the conclusion that the appellant’s appeal lacks merit and is hereby dismissed.
There shall be no order as to costs.
- O. Folorunso, Esq.For Appellant
Respondents absent and unrepresented.For Respondent