Agbefawo Aremu Tajudeen V. Customs, Immigration & Prisons Service Board (2009)

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ADAMU JAURO, J.C.A.

The plaintiff was employed by the defendant, namely Customs, Immigration and Prisons Service Board, by a letter dated 17th July, 1990 to work under the Prisons Services Department, as an Assistant Superintendent of Prisons. By another letter dated 3rd June, 1996 and served on the plaintiff that same day, he was dismissed from service, on grounds of absenteeism and misconduct. Dissatisfied with the state of affairs of having been thrown out of employment into the vagaries of labour market, the plaintiff instituted an action in the Federal High Court Lagos. The action was commenced by Writ of Summons and Statement of Claim dated and filed on 15th March, 2002 seeking for the following reliefs:

“(a). A DECLARATION that the abrupt termination of the applicant’s employment by the respondents without just cause and without following the due process of law in unconstitutional, illegal, null and void, as it breaches the applicant’s Fundamental rights to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

(b). AN ORDER re-instating the Applicant to his rank with all his full rights and entitlements as if he had not been dismissed from the services of the Nigeria Prisons Service.”

Having ignited this claim by serving the Writ of Summons on the defendant, a preliminary objection challenging the action was filed. The core of the objection is the statutory bar in Section 2(a) of the Public Officers (Protection) Act Cap 379, Laws of the Federation of Nigeria, 1990 that the action shall not be brought against the defendant after three months from the accrual date of the cause of action. Thus implying that the action was statute barred. The preliminary objection was argued and in a considered ruling, the trial court per M.L. Shuaibu, J, found in favour of the defendant to the effect that the plaintiffs case fell within the amplitude and latitude of Section 2(a) of the Public Officers (Protection) Act and not having been instituted within the limitation period of three months from the accrual date of the cause of action, it is statute barred. The action was accordingly dismissed.

Aggrieved by the decision of the court below, the plaintiff appealed against it to this court, pursuant to a notice of appeal dated and filed on 16th February, 2005. The original notice of appeal was amended by order of court made on 5th June, 2008. The amended notice of appeal raised 3 grounds of appeal against the decision of the lower court. In this court, the plaintiff will be referred to as the appellant and the defendant the respondent, respectively. The parties have filed and exchanged their briefs of argument, in compliance with the rules of this court.

The learned counsel for the appellant adopted the appellants brief of argument dated 27th June, 2008 and filed on 3rd July, 2008 and urged this court to allow the appeal. The respondent’s counsel was not in court, though served hearing notice on 9th March, 2009. Hence the respondent’s brief of argument filed on 12th August 2008 was deemed adopted and argued in line with Order 17 Rule 9(4) of the Court of Appeal Rules 2007. The respondent on the other, hand, urged this court to dismiss the appeal. The appellant in his brief of argument distilled 2 issues for determination from the three grounds of appeal, as follows:-

“(1). Whether the appellant’s claim as constituted in the court below, was for the enforcement of fundamental right (Ground one)

(2). Whether Section 2(A) of the Public Officers (Protection) Act, applies to the appellant’s (Plaintiff s) claim, so as to make it incompetent having been commenced after 3 months from cause of action arose (sic) (Grounds 2 and 3).”

The respondent on its part, identified a lone issue as apt and germane for determination in this appeal, which is almost identical to the appellant’s issue 2, namely:-

“Whether the appellant’s case was statute barred in accordance with the applicable law.”

For the purposes of resolving this appeal, I will adopt the two issues as couched and formulated by the appellant’s counsel, as they are more related and cover all the three grounds of appeal.

On issue one, learned counsel for the appellant stated that a plaintiff, cannot seek to redress any wrong by way of fundamental rights enforcement procedure, unless such a wrong amounts to a breach of fundamental human right. On this contention, learned counsel relied on the cases of Tukur v Govt of Taraba State (1997) 6 NWLR (Pt. 510) 549 and Egbonu v BRTC (1997) 12 NWLR (Pt. 531) 29. Learned counsel however argued, that the appellant did not approach the court below to enforce his fundamental rights, but rather complained of wrongful dismissal by way of writ of summons. In concluding, learned counsel submitted that the appellants claim was not constituted as one for the enforcement of fundamental rights as was wrongfully held by the learned trial judge. Learned counsel therefore urged this court to resolve this issue in favour of the appellant.

The respondent has not proferred any argument by way of response to this issue. The relevant aspect of the ruling under attack in this issue, is contained on page 35 of the printed record, where the learned trial judge stated thus:-