Engr. Abraham Adebisi Gbadamosi V. Nigerian Railway Corporation (2006)

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CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the ruling of the Federal High Court silting in Lagos delivered on the 5th of April. 2004. The trial court struck out the suit of the appellant as plaintiff in the lower court on the ground that the pre-action notice served by the appellant on the respondent did not comply with the provisions of section 83(2) of the Nigerian Railway Corporation Act Cap 323 Laws of the Federation 1990.

The brief facts of this case are as follows:- The plaintiff/appellant was an employee of the defendant/respondent, who is a statutory corporation set up by the Nigerian Railway Corporation Act. Cap 323 Laws of the Federation 1990.

By a letter dated 4th January, 2002, the appellant was dismissed from the services of the respondent, his employers. The appellant was aggrieved by the dismissal and through his counsel, messrs O. Adekoya & Co. served on the Managing Director of the respondent a statutory three months Notice of intention to commence legal proceedings as contained in pages 147 – 148 of the record of appeal.

Upon the expiration of three months from the date of service of the notice to commence legal proceedings against the respondent, the appellant filed and served on the respondent a writ of summons and statement of claim dated 26th December, 2002 seeking the following reliefs”-

(i) A Declaration that the dismissal of the plaintiff as contained in the letter of dismissal dated 4th January 2002 was in contravention of the provisions of the standard conditions of service for senior staff of the defendant and in breach of his constitutional right to be heard and is therefore null and void and of no effect.

(ii) A declaration that the plaintiff is entitled to all the rights, benefits and emoluments attached to the post which he was dismissed, from the date of dismissal to the date of judgment.

(iii) An order re-instating the plaintiff in the service of the defendant.

(iv) The sum of N1,000,000.00 (one million Naira) being general damages suffered by the plaintiff and his family for unlawful dismissal, and ejection from the plaintiffs official quarters.

The respondent entered appearance to the suit by filing a notice of preliminary objection dated 14th November, 2003 challenging the jurisdiction of the lower court for non compliance of the appellant with the provisions of section 83(2) of the Nigerian Railway Corporation Act Cap 323, Laws of the Federation of Nigeria 1990. The plaintiff/appellant filed an eight paragraphs counter affidavit at pages 145 – 146 of the record to the objection and attached thereto as exhibit CO1, a notice of intention to commence legal proceedings, served on the respondent.

On the 20th January, 2004, the parties argued the preliminary objection and in its ruling delivered on 5th April, 2004, the lower court struck out the appellant’s suit for non-compliance with the provision of section 83(2) of the said Act. The appellant being dissatisfied with the said ruling has therefore lodged this appeal. At pages 162 – 164 of the record of appeal, the appellant on the 17th May, 2004 filed notice of appeal dated the same day and containing two grounds.

In accordance with the rules of court both parties filed their briefs of arguments. The appellant’s brief was dated 3rd and filed on the 4th March. 2005. That of the respondent was dated 19th August, 2005 but deemed filed and served pursuant to the order of this court sought and obtained on the 16th February, 2006. The appellant further filed a reply brief dated 12th April, 2006 but deemed filed and served on the 25th September, 2006.

On the said 25th September, 2006 both counsel Mr. O. A. Orewale and Chief Bisi Adegunle with Benjamin Siyaka represented the appellant and the respondent respectively. The learned counsel adopted their respective briefs. While the appellant urged that the appeal be allowed, the respondent sought for a dismissal of same.

Both counsel to the parties on their briefs of arguments each formulated two issues from the said grounds of appeal. Without having to proliferate issues, I see it appropriate to go alongside those formulated by the appellant’s counsel. This I say because the respondent’s issues are more or less a reproduction of those of the appellant which in other words are saying one and the same thing.