A. Evbuomwan & Ors. V. Integrated Data Services Ltd (I.d.s.l.) (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment)

By a Writ of Summons taken out at the Federal High Court Benin, the Appellants as Plaintiffs commenced proceedings in this case on 27/6/05 wherein in their Statement of Claim they claimed the following reliefs against the Respondents as Defendants:

“(a) DECLARATION that the failure, omission or neglect of the Defendant to terminate the appointments of the Plaintiffs after service with the Defendant for a period far in excess of 6 months is tantamount to an implied confirmation of the appointment of the Plaintiffs with the Defendant as to make them confirmed pensionable staff .

(b) A DECLARATION that the Plaintiffs as staff whose appointments are deemed confirmed are entitled to the benefits of the conditions of service of staff of NNPC and its subsidiaries the Defendant included.

(c) A DECLARATION that the purported disengagement of the Plaintiffs from the service of the Defendant is tantamount to being declared redundant under the Provisions of Article 16.2 or Article 16.3 of the NNPC Conditions of Service or retirement in the public interest.

(d) A DECLARATION that those of the Plaintiffs who have served at least 10 years but now contracted out by the Defendant to 3rd parties having stopped being staff of the Defendant are entitled under the NNPC Conditions of Service to benefits like permanent staff.

(e) A mandatory order of court compelling the Defendant to calculate and pay over to the Plaintiffs pension and/or gratuity as set out in Section 16.4 16.4.6 81 16.4.14 of the NNPC Conditions of Service.”

The Respondents filed their defence to the action and in paragraph 13 thereof challenged the competence of the action on the grounds that it was statute-barred having been brought more than three (3) months after the cause of action arose and that the Statement of Claim did not disclose a cause of action. Thereafter they also raised the same objections in a motion they filed. The motion was set down for hearing and after taking arguments from counsel on both sides, the learned trial judge, OLAYIWOLA J. in his ruling upheld the objections and struck out the action. The present appeal is against that ruling.

Two Grounds of Appeal were filed which, without their particulars, are herein set out thus:

“(1) The learned trial Judge erred when he held that the Appellants, action is statute-barred due to its being commenced 11 months after the cause of action arose.

(2) The learned trial Judge erred when he held that the Plaintiffs, Statement of Claim did not disclose any cause of action

From these two grounds the two issues set out by counsel for both parties in their respective briefs of argument are common ground, the first being, in summary, whether or not the action was statute-barred having regard to the Provisions of Section 2 of the Public Officers Protection Act and Section 12 of the N.N.P.C. Act and the second being whether or not the Suit disclosed a cause of action. Briefs were filed and exchanged.

In his brief of argument learned counsel for the Appellants Mr. Okhuorobo contended on the first issue that by virtue of Section 12 (i) of the Nigerian National Petroleum Corporation Act 1990, which limited the period of action against the corporation or any of its subsidiary to 12 months, the action brought by the Appellants within 11 (Eleven) months of the cause of action was not statute-barred and that in the face of the section which was limited to the corporation to the exclusion of other enactments, Section 2 of the Public Officers Protection Act was not applicable under the legal maxim of GENERALIA SPECIALIBUS NON DEROGRANT. On the second issue, he argued that to determine whether a Suit disclosed a cause it is the Writ of Summons and the Statement of Claim that have to be looked at and considered. Taking the totality of the averment in the Statement of Claim of the Appellants, counsel argued, a cause of action was disclosed.

In his reply, learned counsel for the Respondent, Mr. Orbi, submitted that the Respondent fell within the class of persons or bodies defined as Public Officers and therefore enjoys the protection offered by the Public Officers Protection Act and that the use of the phrase: “Notwithstanding anything in any other enactment” used in Section 12 of the N.N.P.C. Act did not exclude the operation of Section 2 of the Public Officers Protection Act in favour of the Respondent, and therefore, in his view, being a Public Officer the action against the Respondent which is a subsidiary of N.N.P.C. must be commenced within three (3) months of the accrual of the cause of action. This action filed after three months was therefore, statute-barred.