Mr. George Ochui Ojie & Ors V. Government of Cross River State & Anor (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

This is in respect of an appeal against the decision of the High Court of Cross River State sitting at Calabar in the Calabar Judicial Division delivered by AKON B. IKPEME J. on the 10th December, 2012 in respect of an application for mandamus brought by the appellants against the respondents.

The appellants had lost their jobs pursuant to the privatization program of the 1st respondent embarked upon through the Cross River State Council on Privatization. They sought redress at the High Court of Cross River State but the respondents successfully objected to the said suit on the ground that pursuant to the provisions of the Cross River State Enterprises (Privatization) Law, recourse ought to have been made to the Cross River State Arbitration Panel provided for in Section 17 (1) of the said Law, upon which their suit was struck out.

Realizing that the said Cross River State Arbitration panel (hereinafter simply referred to as ‘Arbitration Panel) was not in place, the appellants through their counsel made several representations to the respondents to get the said Arbitration Panel established but all their

1

efforts proved abortive.

The appellants then returned to the Court for an order of mandamus to compel the respondents to establish the said Arbitration panel but once again the respondents successfully objected to their action on the ground that the suit was statute barred.

Dissatisfied, the appellants invoked the appellate jurisdiction of this Court via the notice of appeal filed on 20th December, 2012 containing 6 grounds.

At the hearing of the appeal, Mr. Emori, the learned counsel for the appellants adopted his appellants’ brief filed on 22nd May, 2014 as well as the appellants’ reply brief filed on the 25th November, 2015 as the arguments of the appellants in furtherance of their appeal.

For the respondents, Mrs. Ekpo, Senior State Counsel adopted the respondents? brief filed on 9th February , 2015 but deemed properly filed and served on the 2nd June, 2015 as the arguments of the respondents in contesting this appeal.

The appellants distilled and formulated a lone issue for determination from grounds 2 and 3 of the notice of appeal, thereby abandoning the remaining four grounds, as follows:
Whether the learned trial

2

Judge was not wrong when he held that the appellants, suit was statute barred on the ground that time started to run after 9th September, 2009 when the State Governor gave approval for the establishment of the state Enterprises Arbitration panel and that from 9th September, 2009 to 19th September, 2011, when the application for mandamus was filed, was clearly above the three months period contemplated by Order 40 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2001, which stipulated three months period within which to commence an action for an order of mandamus.
On her part Mrs. Ekpo formulated two issues for determination as follows:
1. Whether the failure of the appellant to first seek and obtain the leave of this Honourable Court to raise fresh issues is not contrary to Order 4 Rule 2 of the Court of Appeal Rules, 2011, if the answer is in the affirmative, whether this fresh issue is not liable to be struck out.
2. Whether the learned trial Judge was not wrong when he held that appellants, suit was statute barred.

The first issue of the respondents is obviously misconceived in view of the proceedings of this Court