Mrs M. E. Enaboifo & Anor V. Iboroabasi Francis Umoren (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Appellants were the defendants in Suit No.FHC/CA/CS/33/2008 commenced by the Respondent through the writ of Summons and Statement of claim filed on 26th June, 2008 at the Federal High court, Calabar. The Respondent had sought a declaration that he was entitled to payment of his unpaid entitlement when he was in service of Federal Government at Federal Training Centre, Calabar and an order for payment of that entitlement being a total of N287, 829.89.

The appellants’ statement of defence filed on 2nd February 2008 was on 4th February 2008 deemed as properly filed and the respondent thereafter filed a Reply to that statement of defence. After completion of the pleadings, the appellants by the motion on notice filed on 9th February, 2009, sought declarations that the action was statute barred and did not disclose any cause of action as well as an order striking out the action.

The motion was supported by affidavit of 5 paragraphs against which the respondents filed a Counter affidavit of 9 paragraphs on 25th day of February, 2009.

The objection was argued through written addresses of counsel and on 30th June, 2009 the learned trial judge, Hon. Justice A. F. A. Ademola gave a Ruling which he concluded in the following manner on page 103 of the Record of Appeal:

“Having regard to the provision of Order (sic) Rules 1 (5) and (4) and Order 29 of the Courts, new rules as well as in the interest of justice, the Defendants’ solicitor’s application dated 16th February, 2009 along with the written addresses of counsel will be taken at the conclusion of trial.”

Dissatisfied with the above decision of the learned, trial judge the appellants appealed to this court on three grounds with the particulars as on pages 105-108 of the Record of Appeal. The two learned counsel filed their respective Briefs of Argument and formulated therein the issues for determination.

Appellants’ counsel, E. O. Omonowa set down the following two issues:

“1 Whether the trial court was not wrongful when it held that, this suit is not “a part herd matter’, within the meaning of Order 1 Rule 3 (1) of the Federal High Court (Civil Procedure) Rules, 2009 when pleadings were completed, motion challenging the competence of the suit on the ground of being statute barred had been filed with the Counter Affidavit opposing same received; and on the Order of the Court, the arguments of counsel on the motion were reduced into writing, filed and served before 30th April, 2009 when the new Federal High Court (Civil procedure) Rules 2009 came into operation.

2. Whether the trial court was not wrongful when it set down for taking of oral evidence of witnesses in the hearing of the plaintiffs case without pronouncing on the merit of the Appellants’ application which was challenging the competence of the suit on the ground that, the matter was statute barred.”

In his own Brief, learned counsel to the Respondent, F. E. Ekanem Esq. raised the following issues for determination:

“(a) whether the filing of a suit, filing of defence and written addresses on the application filed by the defendants which written addresses were argued after the new Rules of the Federal High court 2009 came into operation without parties giving evidence amount to PART-HEARD MATTER on merit and therefore governed by the old Rules of the Federal High Court 1999.

(b) Whether Section 2 (a) of the Public Officers Protection Act is applicable to employment with statutory flavour which is contractual in nature and whether the Respondent having worked in the Federal establishment and retired honourably is entitled to collect his monetary benefits paid to him by his employment (sic) but withheld by the 1st appellant.”

On his issue 1, the Appellants’ counsel stated that Order I Rule 3 (1) and (2) of Federal High Court (Civil Procedure) Rules 2009 clearly established the situation in which a matter can be said to be part-herd so as to exclude such matter from the application of the new Rules and when a matter may be said to have commenced under the same Rules.

He submitted that by the provisions of Order 1 Rule 3 (1) and (2) of the Federal High Court (Civil procedure) Rules 2009, “when: