THE FEDERAL POLYTECHNIC NEKEDE, OWERRI & ANOR v. MR. LOUIS O. NWAOZOR (2014)

THE FEDERAL POLYTECHNIC NEKEDE, OWERRI & ANOR v. MR. LOUIS O. NWAOZOR

(2014)LCN/7638(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of December, 2014

CA/PH/166/2009

RATIO

COURT: JURISDICTION; THE FACTORS AT PLAY WHENEVER AN OBJECTION TO THE COURT’S JURISDICTION IS RAISED BY A PARTY TO AN ACTION, UNDER THE STATUTES OF LIMITATION

Whenever an objection to the Court’s jurisdiction is raised by a party to an action, under the Statutes of Limitation there are usually three (3) factors at play. The one is the date the cause of action arose, the other is the date of the commencement of action and the third is the period of time prescribed for the commencement of the said action by the relevant piece of legislation. per. FREDERICK O. OHO, J.C.A.

STATUTE OF LIMITATION; THE RELEVANCE OF THE STATUTE OF LIMITATION TO AN ACTION

The relevance of the Statute of limitation is to prevent tardiness and indolence in the litigation process. The situation, where a litigant decides to wake up from an undeserved slumber and remembers he has a cause of action to pursue, usually at his whims, and even at such situations where human memory may seem to have faded and failed must not be encouraged. Besides this, the necessity for limitation of actions carries the birth-marks of what is best for all of society and social interactions among people. Public Policy demands that at some point, there must be an end to all litigation. The imposition of time limits beyond which a dispute can no longer be validly contested is indeed meant to give effect to a basic idea of our legal thinking; that in the interest of society as a whole, not all disputes must necessarily end up in litigation. per. FREDERICK O. OHO, J.C.A.

STATUTE OF LIMITATION; SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION LAW) CAP. P41 LFN 2004

The Statute of Limitation which is the point of reference in this case, is Section 2 of the Public Officers (Protection Law) Cap. P41 LFN 2004, which, in the words of TOBI, JSC in the case of MERCANTILE BANK Nig. LTD. v. FETECO LTD. (1998) 3 NWLR (Pt. 540) 142 AT 156-157; “Removes the right of action, the right of enforcement and the right of judicial relief in a Plaintiff and leaves him bare and empty cause of action which he cannot enforce if the alleged cause of action is statute Barred; that is to say if such cause of action is instituted outside the three months statutory period allowed by such law.” per. FREDERICK O. OHO, J.C.A.

ACTION: CAUSE OF ACTION; THE DEFINITION OF A CAUSE OF ACTION

A cause of action is simply defined as the factual situation relied upon by a Plaintiff and which entitles him to a remedy against the Defendant. Indeed, the expression; “cause of action”, is defined at page 43, Nigerian Judicial Lexicon, as: “…the fact or combination of facts which gives rise to the right to sue. This right to sue consists of wrongful act of the Defendant which gives the Plaintiff the right to complain and the damage consequent to the wrongful act: ECOBANK (NIG.) PLC v. GATEWAY HOTELS LTD (1999) 11 NWLR (Pt. 627) 397 at 418 (CA) citing the Supreme Court in EGBUE v. ARAKA (1988) 3 NWLR (Pt. 84) 598 at 613 (SC)…” per. FREDERICK O. OHO, J.C.A.

COURT: ROLES OF THE JUDGE;WHETHER IT IS THE ROLE OF THE JUDGE TO SIGN WRIT OF SUMMONS OR ORIGINATING SUMMONS

The position of this Court on the issue, however, is that the Judge of the High Court has no roles assigned to him which includes the signing of writ of summons before they acquire the force of law, except under Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules 2000 applicable at the time of the commencement of the action at the lower Court. The position, however, must be distinguished from the case an Originating Summons which requires the Judge’s signature for same to be issued. But even at that, the signature of a Judge is not inviolable in order to breathe the force of law in an Originating Summons as that role can still be properly delegated to the Court’s Registrar whenever the need arises. Apart from these, errors or acts of omissions arising from the non-signing or irregularly endorsed writs or summons are mere procedural irregularities which do not affect the jurisdiction of the Court. See SHUAIBU v. MUAZU (2007) 7 NWLR (Pt. 1033) 271.

But as it specifically affects the validity or efficacy of a writ as an Order of Court, it is the signature of the Judge or Registrar as the case may be, that will give it the desired force of law it requires to be obeyed. In the case of ALTINE v. AFRIBANK PLC (2000) 15 NWLR (Pt. 689) 181 AT 197 per SALAMI, JCA, this Court had cause to observe as follows; “…A writ of summons can be prepared, signed and issued by a Registrar or other Officer of the Court on Application… it is the preparation, signing and issuance of the writ of summons that heralds the commencement of an action and not the payment of the filing fees…” per. FREDERICK O. OHO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. THE FEDERAL POLYTECHNIC NEKEDE, OWERRI

2. THE GOVERNING COUNCIL, FEDERAL POLYTECHNIC NEKEDE – Appellant(s)

AND

MR. LOUIS O. NWAOZOR – Respondent

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment): The Respondent (as Plaintiff in the trial Court) filed a writ of summons on the 16th day of September, 2002 against the Appellants (as Defendants at the trial court) and by an Amended Statement of Claim dated the 26th day of October, 2004 at paragraph 19 claimed the following reliefs.

“19 Wherefore the Plaintiff claims against the Defendants as follows:

1. A Declaration of the Honourable court that the dismissal of the plaintiff from the Federal Polytechnic Nekede, Owerri on the 30th April, 1999 and confirmed by the 2nd Defendant on 15-5-2002 is wrongful and therefore null and void.

2. An Order of the Court that the Defendants should reinstate the Plaintiff to the service of the Federal Polytechnic Nekede, Owerri with full payments to the Plaintiff of his salaries, entitlements, allowances and benefits without loss of seniority.

3. N500,000.00 General Damages.”

By a Further Amended Statement of Defence also dated the 26th day of October, 2004 the Appellants denied the Respondent’s claims and at paragraph 3 of the said Further Amended Statement of Defence, the Appellants indicated that at the trial or prior to the trial, that the Appellants as Defendants shall apply to the Honourable Court to set down and determine the preliminary points of law, to wit; that the suit is incompetent for want of jurisdiction and no justiciable cause of action when the suit was instituted by virtue of the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 (Cap 381) laws of the Federation of Nigeria, 1990.

On the 18th day of February, 2008, the Appellants carried through their earlier notice to so do as per their paragraph 3 of their Further Amended Statement of Defence by filing unto Court, a Motion on Notice in which they simply asked for;

“An Order of Court striking out this suit for lack of jurisdiction in that the action is statute barred and the suit is incompetent”.

This Application had in its support, an Affidavit of 10 paragraphs and to which the Exhibits ‘A’ and ‘B’ were attached. The Exhibit ‘A’ herein is a copy of the letter of removal of the Plaintiff from the employment of the Federal Polytechnic, Nekede, Owerri, Imo State dated the 29th day of April, 1999. The Exhibit ‘B’ is yet another letter titled; “RE-RATIONALIZED STAFF IN 1999” dated the 15th day of May, 2002 by which the Respondent was informed of the 2nd Appellant’s approval of an earlier recommendation under which the Respondent was dismissed from the Federal Polytechnic Nekede, Owerri, Imo State.

The Respondent’s Counter Affidavit of 13 paragraphs was filed on the 22nd day of April, 2008. There is attached to this Counter Affidavit a total of two Exhibits. The Exhibit ‘A’ is a copy of a letter dated the 21st day of March, 2001 by which the Respondent was advised to properly route his letter of Appeal for a review of his dismissal/request for re-instatement through the proper channel, i.e., through his last Head of Department, Director of School, the Rector and finally to the Chairman of Council. The Exhibit ‘B’ is the same as the one attached as the Exhibit ‘B’ to the Affidavit in support of the main application under consideration. Written arguments were ordered to be filed by Learned Counsel to the parties.

The brief facts of this case is that by a letter dated the 29th day of April, 1999 and titled; “Removal from the Federal Civil Service” the Respondent was informed of his dismissal from the Federal Civil Service with effect from the 30-4-1999 by the former Head of State and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, General Abdulsalami Alhaji Abubakar by virtue of the powers conferred on him under the Public Officers Special Provisions Act (Decree No. 17 of 1984) in the public interest.

On the 15th day of May, 2002 after considering the report of an Appeals Committee set up by the Appellants to look into the cases of those they termed: “Rationalized Staff” and by another letter headed; “Rationalized Staff in 1999”, they informed Respondent that due to the reasons in their said letter, and for which reasons his appeal was turned down that the earlier decision dismissing him was irreversible.

Following the receipt of this letter, the Respondent approached the lower Court on the 16th day of September, 2002,whereupon he sued for wrongful dismissal. After joining issues with the Respondent at the lower Court, the Appellant subsequently filed an Application challenging the lower Court’s jurisdiction to entertain the matter on grounds of Statute of Limitation. The Respondent commenced the action in the lower Court on the 16th day of September, 2002, whereas the letter of Dismissal served on him had been dated the 29th day of April, 1999. The Respondent insists that the cause of action in this case arose, not from the date of the letter of dismissal dated 29-4-1999, but from the date of a subsequent letter, dated the 15-5-2002 by which his dismissal was re-stated and declared irreversible by the Appellants.

The learned trial Judge received arguments from both sides of the divide and on the 14th day of October, 2008 delivered its Ruling. In its Ruling, the learned trial judge had this to say:

“Having held that the plaintiff’s suit commenced on the 8th of August, 2002 and not the 16th of September, 2002 (when His Lordship endorsed the Originating process upon resumption from the Court’s annual vacation, this Application fails in its entirety and is accordingly dismissed.”

It is against this ruling of the trial court dismissing the Appellants’ motion seeking the striking down of the Respondent’s action challenging his dismissal that the Appellants have appealed to this court for a reversal. There are three (3) Grounds of Appeal in all and which are reproduced here as follows:

GROUND ONE:

The learned trial Judge erred in law when he held that he has jurisdiction to entertain the suit and failed to hold that the suit is statute Barred and incompetent.

PARTICULARS:

(a) Exhibit ‘A’ was the Appellants letter dated 29-4-1999 dismissing the Respondent (the Cause of Action).

(b) Exhibit ‘B’ was the Appellants letter dated 15-5-2002 restating that the letter of dismissal was final.

(c) The Respondent commenced his suit against the Appellants on 16-9-2002 when the writ of summons was signed into being by the presiding judge.

(d) The time span from 29-4-1999 when the cause of action arose to 16-9-2002 when the action was commenced far exceeds the THREE MONTH LIMITATION mandatorily provided for in Section 2 of the Public Officers Protection Act Cap. P41 Laws of the Federation 2004.

GROUND TWO:

The learned Trial Judge erred in law in holding that Exhibit ‘B’ was the cause of action for the purposes of computation of time.

PARTICULARS:

(a) Exhibit ‘A’ of the 29-4-1999 (the letter of dismissal) was the actual cause of action.

(b) Exhibit ‘B’ of 15-5-2002 was not the cause of action but a letter stating that the Appellants would not go back on the letter of dismissal (EXHIBIT ‘A’).

(d) The action was statute barred by virtue of the provisions of Section 2 of the Public Officers Protection Act Cap. P41 Laws of the Federation 2004.

GROUND THREE:

The learned trial Judge erred in law in holding that the action was commenced before the presiding Judge signed the writ into existence on 16-8-2002.

PARTICULARS:

(a) The writ of summons was issued on 16-9-2002.

(b) Order 6 Rule 13 provides that the “issue of a writ takes place upon its being signed by a Judge in Chambers.

(d) An unsigned document is worthless.

Briefs of arguments were filed on both sides. Appellants’ briefs of argument was dated the 28-9-2009 but filed on the 13-1-2011. The brief was settled by L. A. Njamenze Esq. The Respondents brief, on the other hand, dated 20-1-2011 was settled by M. E. Ezeala, Esq. At the hearing of this appeal on the 17-11-2014, learned Counsel to the parties adopted their briefs of arguments on behalf of the parties.

The Appellants’ Counsel adopted the Appellants’ brief and prayed this Honourable Court to allow the Appeal and set aside the ruling of the trial Court while Counsel to the Respondent adopted the Respondent’s brief and urged the court to affirm the ruling of the lower court and dismiss the Appeal.

In the Appellant’s brief of argument, three (3) issues were distilled from the three (3) Grounds of Appeal as follows:

(1) Was the action statute barred by virtue of S.2 of the Public Officers Protection Act Cap P41 Laws of the Federation 2004.

(2) Which document between Exhibit A and B was the Cause of action.

(3) When was the cause of action commenced at law for the purpose of computation of time.

On the part of the Respondent the issues 1 and 2 nominated by Appellant were duly adopted by Respondent’s Counsel for Court’s determination. This Court shall determine this Appeal on the basis of the issues settled by Appellants.

ISSUES ONE and TWO;

(1) Was the action statute barred by virtue of S.2 of the Public Officers Protection Act Cap P41 Laws of the Federation 2004.

(2) Which document between Exhibit A and B was the Cause of action.

In canvassing his arguments before the court, learned Appellant’s Counsel took the issues 1 and 2 together and contended that of the two Exhibits, the Exhibit ‘A’ dated the 29-4-1999 is the letter by which the Respondent was effectively dismissed from the services of the Federal Polytechnic Nekede, in Imo State and that it is that letter that constitutes the cause of action in this case. Counsel further contended that the subsequent letter received by the Respondent which is the Exhibit ‘B’ dated the 15-5-2002 merely confirmed the Exhibit ‘A’ to the effect that the issue of the Respondent’s dismissal was final and would no longer be re-visited.

Learned Counsel contended that Exhibit ‘A’, which is the dismissal letter was the catalyst in this case and that its contents were clear, unambiguous and final regarding the communication of the Respondent’s dismissal and that the letter left no room after construing it for speculating that the intendment thereof was not categorical or that there was any room for doubt or ambiguity as to whether the Respondent had been dismissed by it or not.

Learned Counsel urged this Court to hold that the lower Court erred in law by holding that Exhibit ‘A’ was not the cause of action for purposes of computation of time when there was no literal, logical or rational reason for construing it otherwise. Counsel said that time began to run from the 29-4-1999 when the Exhibit ‘A’ was written and served on the Respondent. As far as the cause of action is concerned under the law, Counsel submitted that it accrues on the date when the incident giving rise to the complaint occurred. Learned Counsel referred Court to the cases of IBRAHIM OHIDA v. MILAD KOGI STATE (2000) 12 NWLR (Pt. 680) 24 MKPEDEN v. UDO (2000) 9 NWLR (Pt. 673); and also the case of IBRAHIM v. JSC (1998) 14 NWLR (Pt. 584) 1; EGBE v. ADEFARASIN (1985) 1 NWLR (Pt. 3) 549; ONYEJEKWE v. NPC (1996) 7 NWLR (Pt. 463) 704 and AGBOOLA v. SAIBU (1991) 2 NWLR (Pt. 175) 566, all in support. Learned Counsel finally urged the Court to resolve the issues 1 and 2 in favour of the Appellants.

In its counter argument, Respondent’s Counsel contended that Section 2 of the Public Officer’s (Protection Law) Cap. P41 LFN 2004 relied upon by the Appellants has no application to the suit of the Respondent which Counsel said commenced in 2002 when the applicable law was known as the Decree No. 17 of 1984 under which law the Appellants had argued their applications before the lower Court. Counsel submitted that Section 2 of the Public Officers (Protection Law) relied upon by the Appellant has no retroactive effect.

On account of the controversy dogging the question of which, out of the two Exhibits, between ‘A’ and ‘B’ constituted the cause of action in this case, Learned Counsel contended that Exhibit ‘A’ as far as the Respondent is concerned is the letter dated the 21-3-2001 signed by the Registrar of the Appellants in reaction to the Respondent’s letter of Appeal for a review of his wrongful termination and for his re-instatement. Counsel said that another letter dated the 15-5-2002 signed by the same Appellants’ Registrar was the cause of action shortly before the Respondent commenced his case against the Appellants at the lower Court on the 8-8-2002 within three (3) months of the receipt of the purported letter of dismissal. Counsel said that the lower Court was right in its decision in rejecting Appellants’ arguments on the issue and submitted that a party with a genuine complaint against a wrong done to him should not be shut out from the opportunity to ventilate his grievances and obtain justice as he should on ground that the action is Statute Barred. He urged that the Court should be in a position to adopt a much more liberal approach to issues of this nature. Counsel referred to the case of OGBUEHI v. GOVERNOR OF IMO STATE (1995) NWLR (Pt. 417) 53 in support and urged the Court to resolve these issues in favour of Respondent.

ISSUE THREE;

When was the cause of action commenced at law for the purpose of computation of time.

Learned Appellants’ Counsel drew this Court’s attention to the lower Court’s Ruling wherein the Court held that the Respondent’s suit at the lower Court was commenced during the Court’s Vacation when same was filed on 8-8-2002 and the contention of Appellants who are of the view that the suit was deemed to have commenced as soon as the writ of summons was issued on the 16-9-2002 when the Presiding Judge signed same. Learned Counsel with this at the background, submitted with respect that Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules 2000 applicable at the time of the commencement of the action, provides that the “issue of a writ takes place upon its being signed by a Judge in Chambers”.

For this reason, Counsel further argued that the issue of a writ cannot therefore take place when not signed by a judge in Chambers. According to Counsel, the writ in this suit was issued under the hand of the presiding Judge in Chambers on the 16-9-2002 and that the processes accompanying the writ show that they were presented at the Federal High Court for filing on 8-8-2002. Counsel referred Court to pages 12 and 14 of the records of Appeal.

Counsel said that the Exhibit ‘B’ in this regard is not material to the computation of time in this matter so long as it was not the cause of action, but was merely introduced in a desperate attempt to salvage the Respondent’s indolence in not commencing his action within the limitation period.

It was further argued by Counsel that the lower Court erroneously held the Exhibit ‘B’ to be the cause of action. And that should this be accepted, then this will raise the relevance of when the action was commenced at law for purposes of computation of time because the action would be time barred if the three month period is computed against when the presiding Judge signed the writ into life, which was the 16-9-2002. And that the action would not be statute barred if the date of presentation of the writ, that is the 8-8-2002 is used for computation.

Counsel said that it is the very act of signing the writ that breathes life of the law into the suit and that there was no suit at law before the lower Court signed the writ on the 16-9-2002. He further said that it is the date when the suit and writ were issued that is material to the computation of time. Counsel further enthused that an unsigned writ or document is a worthless piece of paper. In concluding, learned Appellants’ counsel contended that it is the Exhibit ‘A’, the letter of dismissal dated the 29-4-1999 that is the cause of action and not the Exhibit ‘B’ as argued by Respondent’s Counsel and by which the Respondent merely intended to resuscitate a moribund and obsolete cause of action. Counsel cited the case of ALTINE v. AFRIBANK Plc. (2002) 15 NWLR (Pt. 689) 181 AT 197 on when a suit is said to have commenced in law and Counsel urged the Court to resolve this issue in favour of Appellants.

In responding learned Counsel for the Respondent merely said that a litigant should not be made to suffer the fault of his Counsel or the Court’s Registry. According to Counsel it is the duty of the Respondent to file his suit within time in Court as the Respondent had done in this case and that it is not part of his duty to control the administrative process of the Registry and therefore cannot be punished for any lapses or mistakes on the part of the Registry. Counsel urged the Court to resolve this issue in favour of the Respondent dismiss this Appeal and affirm the Ruling of the lower Court.

RESOLUTION OF ISSUES;

“Removes the right of action, the right of enforcement and the right of judicial relief in a Plaintiff and leaves him bare and empty cause of action which he cannot enforce if the alleged cause of action is statute Barred; that is to say if such cause of action is instituted outside the three months statutory period allowed by such law.”

The Objection raised by the Appellants in the lower Court as Defendants is that suit instituted by the Respondent challenging his dismissal by the Appellants was Statute Barred. The Appellants had contended before the lower Court that the letter of dismissal, that is, the Exhibit ‘A’ served on the Respondent and by which his services with the Appellants were permanently determined was dated the 29-4-1999 and that the Respondent’s suit challenging his dismissal was filed on the 16-9-2002. By whatever arithmetic or mathematical formula by which the period of limitation is calculated, if this is accepted as correct, the answer to be derived from any such exercise, will definitely and most certainly point to the fact that three (3) months had elapsed before the Respondent’s action was instituted. The action would therefore be Statute Barred by virtue of Section 2 of the Public Officers (Protection Law) Cap. P41 LFN 2004.

But Learned Respondent’s Counsel, had argued that there was an Exhibit ‘B’ dated the 15-5-2002, by which the Appellants had notified the Respondent of the decisions of the Appellants Governing Council, confirming the contents of Exhibit ‘A’ to the effect that the issue of the Respondent’s dismissal was final and would no longer be re-visited. According to Respondent’s Counsel, that subsequent letter, that is the Exhibit ‘B’ was indeed the cause of action as against the Exhibit ‘A’. I have taken a very careful look at the said Exhibits ‘A’ and ‘B’ in the light of Respondent Counsel’s submission on the issue. For purposes of clarity and for the avoidance of any doubts, I have taken the pains to reproduce the letters as follows;

EXHIBIT ‘A’:

FPN/REC/328/1/194

Federal Ministry of Education

Date; 29th April, 1999

Federal Polytechnic Nekede

Owerri

Mr. Nwaozor L. A.,

Registry

Fed. Polytechnic

Nekede, Owerri.

Dear Sir/Madam,

REMOVAL FROM THE FEDERAL CIVIL SERVICE

I am directed to inform you that the Head of State, Commander in Chief of the Armed Forces, Federal Republic of Nigeria, General Abdulsalam Alhaji Abubakar, has by virtue of the powers conferred on him under the Public Officers Special Provisions Act (Decree No. 17 of 1984) dismissed you from the Federal Civil Service with effect from 30-4-99 in the public interest.

2. You are kindly requested to hand over all Government Property in your possession to the Head of Your Department or any other Officer designated by your Ministry/Extra-Ministerial Office for that purpose.

3. Please acknowledge receipt of this letter.

Yours Faithfully,

C. I. Osuoji (DR.)

Rector”…

EXHIBIT ‘B’:

“FPN/R/JSP/70/1V/208

MAY 15, 2002

Mr. Nwaozor L. O.

Isieke I Awo Omamma

Orlu West L.G.A.

RE: RATIONALIZED STAFF IN 1999

Council at its 8th meeting held on 8th and 9th April 2002 considered the report of Appeal Committee held on 22nd to 25th January 2002 on the case of rationalized staff in which you were affected.

Council observed that you had queries in your personal file, which you had previously denied on interrogation. It also noted that you colluded with one Dr. E. C. Echetama then at the General Hospital Owerri (now Federal Medical Center, Owerri) to defraud the Hospital, Council therefore approved an earlier recommendation that you stand dismissed from the service of the Federal Polytechnic, Nekede, Owerri.

You are hereby informed of Council’s decision.

Signed:

Dr. (Mrs.) G. T. U. Chiaha

Registrar/Secretary to Council.”

Having carefully reproduced both Exhibits and having carefully construed their contents, I practically see no basis for any controversies.

The Exhibit ‘A’ is clearly a letter of dismissal and by which the employment of the Respondent herein was effectively and permanently determined. There is absolutely no doubt about that. Consequently, in agreeing with Learned Appellants’ Counsel on the issue, I see no logical or rational reason for construing the Exhibit ‘A’ otherwise. The Exhibit ‘B’ on the other hand, dated the 15-5-2002, some three years and five months after, and mostly addressed in the past tense and appropriately titled; “Re: Rationalized Staff in 1999” refers to the Report of an Appeals Committee set up by the Appellants to look into the letters of appeal by those affected by the Rationalization Exercise of 1999 under which the Respondent was dismissed and to inform those affected that their fate concerning the dismissal of 1999 remained irreversible. The subsequent receipt of Exhibit ‘B’ dated the 15-5-2002 does not in the opinion of this Court, alter or in any way result in the shift of the date of dismissal of the Respondent which had been done on the 29-4-1999 and made to take effect on 30-4-1999. The Respondent’s cause of action actually accrued on the date when he was served with the said Exhibit ‘A’ and not on the date when he was served with Exhibit ‘B’ almost four years in the future. The Respondent should therefore, have commenced his action challenging his dismissal from the Appellants’ service within three (3) months after his receipt of Exhibit ‘A’ and not after.

“…the fact or combination of facts which gives rise to the right to sue. This right to sue consists of wrongful act of the Defendant which gives the Plaintiff the right to complain and the damage consequent to the wrongful act: ECOBANK (NIG.) PLC v. GATEWAY HOTELS LTD (1999) 11 NWLR (Pt. 627) 397 at 418 (CA) citing the Supreme Court in EGBUE v. ARAKA (1988) 3 NWLR (Pt. 84) 598 at 613 (SC)…”

In the instant Appeal, the Respondent could not in all seriousness say that he relied on the Exhibit ‘B’, issued on the 15-5-2002 and which did not categorically dismiss him as the Exhibit ‘A’ had done in such definite terms which also has the imprimatur or stamp of finality attached to it.

Generally, the law on the subject is that time begins to run against the Plaintiff from the moment or the occurrence of the cause of action.

In the instant case and from the clear and unambiguous wordings of the two Exhibits placed side by side. I hereby find and do hold that the Respondent was not dismissed by virtue of Exhibit ‘B’ as claimed by him, but by Exhibit ‘A’ dated the 29-4-1999. Time began to run from that date.

In the case of ADIGUN v. AYINDE (1993) 8 NWLR (Pt. 313) 516, it was held by the Supreme Court that the defense provided in Section 2 of the Public Officers (Protection Law) is that actions caught by the provision must be commenced within three months next after the cause of action arose. Thus an action for any act done in pursuance of or in execution of any public duty alleging act or omission which is not brought against a Public Officer within three months of the accrual of the cause of action shall not lie as the Court will lack the requisite jurisdiction to entertain the matter.

The submissions of learned Counsel for the Respondent on this issue are therefore untenable and are accordingly rejected.

Having said much, there is yet a last huddle to contend with. Learned Counsel for the Respondent had disagreed on the question of the date of the institution of the Respondent’s suit at the lower Court. What transpired at the lower Court was that after erroneously deciding that the Respondent’s Cause of action accrued by virtue of Exhibit ‘B’ dated the 15-5-2002, the Court next went ahead and committed yet a second error and that is to the effect that the date of commencement of Respondent’s suit was 8-8-2002 and not the 16-9-2002 when the writ of summons was actually signed by the trial judge.

Learned Appellants’ Counsel had contended in reaction, that even if the writ of summons had been filed on the 8-8-2002 as contended by Respondent, without the Judge’s signature that the said writ has no force of law as it is the signature of the Judge or Registrar as the case may be that breathes life into the suit. On account of this, Counsel submitted that before the 16-9-2002 when the Judge had not signed the writ of summons in this case, there was practically no suit at law. It may be proper, perhaps at this stage to mention here that this immediate controversy concerning the date of commencement of the Respondent’s suit at the lower court was the result of the lower Court’s erroneous acceptance that the Exhibit ‘B’ of the 15-5-2002 was the cause of action as against the Exhibit ‘A’ of the 29-4-1999.

“…A writ of summons can be prepared, signed and issued by a Registrar or other Officer of the Court on Application… it is the preparation, signing and issuance of the writ of summons that heralds the commencement of an action and not the payment of the filing fees…”

The proper interpretation to be accorded this Court’s position on the issue is that if the Respondent’s suit at the lower Court was indeed filed on the 8-8-2002, then that ordinarily remains the date of commencement of action. But if for any reasons, particularly due to absence of the Presiding Judge or Registrar of Court, after filing and the necessary “preparation, signing and issuance of the writ of summons” was not done by the Court’s Registry and had to await the arrival of the Presiding Judge who was away on Annual Vacation, until the 16-9-2002, then the date of commencement of action cannot be the 8-8-2002, but the 16-9-2002 when the necessary “preparation, signing and issuance of the writ of summon” was done either by the Registrar or the Judge, depending on the Practice prevalent in the Court under consideration. In a similar decision of this Court in the case of MR. GOKE v. PRINCE EMEKA IBENY & ANOR (2014) LPELR-22534, AGBO, JCA, had this to say on the subject;

“…A writ of summons is therefore an Order of Court summoning a Defendant to react to the Complaints contained therein. A process neither signed by a Judge nor Registrar of the Court cannot constitute an Order of Court…”

It is on this score that I have cause to disagree with the learned trial Judge on the issue at page 220 of the printed records, where he was recorded as having said the following;

“… in the instant case, the Judge (who was obviously on his annual vacation) was not able to sign the writ of summons commencing this suit until the 16th of September, 2002 upon his return from Holidays. There is therefore no way he could have endorsed it on the 8th day of August, 2002 as he was neither sitting in open Court nor was he in Chambers, in which case he would have promptly signed the document immediately same was filed on 8-8-2002”.

The Court is to administer the law as it is, and not as it ought to be. Making excuses for a litigant the way the lower Court had done is unfortunate and completely unacceptable. Here is a situation in which the Respondent had received a letter from the Appellants on the 29-4-1999 dismissing him outrightly from the services of the Appellants. Three years afterwards, and following series of letters of appeal and/or of review which he wrote to the Governing Council of the Appellants, a subsequent letter was addressed to him on the 15-5-2002 informing him of the irreversibility of his dismissed status from service done on 29-4-1999. Even though the lower Court in the instant case, had erroneously held the subsequent latter dated of 15-5-2002 as the source of cause of action, the Respondent could still not file his action challenging his dismissal from service within three (3) months of the receipt of the subsequent letter, thus necessitating the lower Court shopping for all and every manner of explanations to save the Respondent’s action from imminent strike down by virtue of Section 2 of the Public Officers (Protection Law) Cap. P41 LFN 2004 which requires that his action must be filed within three (3) months of the accrual of the Cause action and which he failed lamentably to have done in this case.

Apart from all of these, even if one decides to go by the very language of his first of three (3) Reliefs of the Respondent in its Further Amended Statement of Claim dated the 26th day of October, 2004 before the lower Court, it would be discovered that the Respondent knew without doubt that his dismissal was effectively, efficiently and conclusively done by the Appellants in 1999. By the Respondent’s own showing from the wordings of his first Relief thereof, it is of course glaring that it was not the dismissal of the Respondent purportedly done on the 15-5-2002 that he had gone to seek the lower Court’s intervention to set aside, but the one done on the 29-4-1999 and which took effect on the 30-4-1999. The said Relief one, even though already set out at the beginning of this judgment, same is reproduced here once again, for the avoidance of any doubts;

“A Declaration of the Honourable Court that the dismissal of the Plaintiff from the Federal Polytechnic Nekede, Owerri on the 30th April, 1999 and confirmed by the 2nd Defendant on 15-5-2002 is wrongful and therefore null and void. (Underline, mine for emphasis).

In the final analysis, the Appeal has merit and hereby succeeds and the Ruling of the Federal High Court, sitting at the Owerri Judicial Division delivered by Hon. Justice C. V. Nwokorie on the 14th day of October, 2008 is hereby set aside. Consequently, under Section 15 of the Court of Appeal Act 2004, the Plaintiff/Respondent’s suit No. FHC/UM/CS/79/2002 is hereby struck out for want of Jurisdiction. Parties to bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read in draft the ruling just delivered by my learned brother Oho, J.C.A. and I agree with him that the ruling of the trial court of 14th October, 2008 was based on a very faulty appreciation of the law and should be vacated. It having been established that the suit before the trial court is statute-barred, the said suit is hereby struck out. I abide by all the consequential orders made by my learned brother.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO, J.C.A. I agree with the reasoning and conclusion. I also abide with the consequential orders.

Appearances

L. A. Njemanze Esq.For Appellant

AND

M. E. Ezeala Esq.For Respondent