Executive Governor Of Osun State V. Barrister N. O. Folorunsho (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

By a writ of summons filed on 10/03/2009 and an Amended Statement of Claim dated and filed on 18/02/2011, the claimant (hereinafter called the respondent) commenced an action against the defendants (hereinafter called the appellants) before the High Court of Osun State sitting at Osogbo Judicial Division claiming the following reliefs:

1. “A declaration that the defendants’ letter Ref. No. HS/10/187 dated 9th day of May, 2005 purportedly determining his appointment as the Solicitor-General and Permanent Secretary in the Ministry of Justice of Osun State is unconstitutional, invalid, illegal, ultra vires, contrary to Osun State Service Regulations, null and void, in violation of due process of law and in contravention of the claimant’s constitutional right to fair hearing.
2. A declaration that the claimant’s termination from Osun State Civil Service is illegal, unconstitutional and contrary to Osun State Public Service Regulations and therefore invalid, ineffectual, null and void, and of no effect whatsoever.
3. Declaration that the claimant cannot be relieved of his post without following due process, and lack of which culminated in the infringement of his fundamental rights to fair hearing and therefore to justice.
4. An order on the defendants jointly and severally to reinstate the claimant to his former position as the Solicitor-General and Permanent Secretary, the position he held before his purported termination from service.

Alternatively, an order on the defendants to pay to the claimant all his arrears of salaries, allowances and other entitlements incidental thereto and all increments accruing to him from the date of his arbitrary retirement on 9th May, 2005, until judgment and from the date of judgment until he is due for retirement.”

The defendants did not file a defence to this action but raised a preliminary objection. The learned trial Judge, O. D. Afolabi, J. ordered the appellants to file their defence and incorporate the preliminary objection in it in view of the fact that demurrer proceedings has been abolished in Osun State by virtue of Order 22 of the High Court (Civil Procedure) Rules, 2008 of Osun State. The appellants attempted to heed this order and filed a motion for extension of time to file their defence. But the motion was struck out for failure to comply with the extant rules of court. The appellants did not attempt to re-file the motion.

Rather, the appellants sought to move their preliminary objection and the court ordered them to file their defence and include their preliminary objection to final Address of counsel in view of the respondent’s pending motion for judgment in default of defence, and the case was adjourned to enable the appellants file their defence. On the next date, the appellant still did not file their defence.

The respondent then opened his case and it was adjourned for three times to enable the appellants cross-examine the respondent and his witness. Rather than cross-examine them, appellants brought a motion for stay of proceedings and leave to appeal. In a considered ruling, the court granted leave to appeal but refused to stay proceedings and the prayer to deem as properly filed a Notice of Appeal that has not been filed. The matter was adjourned for adoption of Written Addresses.

On the next date, for adoption of Written Addresses, appellants brought another motion for stay of proceedings they just filed which has not been served on the respondent. The said motion was adjourned twice and in a considered ruling, the motion was dismissed for lacking in merit and an abuse of court process. The matter was again adjourned for adoption of counsel’s Final Addresses. And on that date, appellant orally applied for stay of proceedings on the ground that they had applied to the Court of Appeal for stay of proceedings.

The oral application was ruled against since no appeal has been entered on any of the rulings of this court. The respondent adopted his Written Address and the appellants in reply said they have nothing to say. In his judgment delivered on 19/12/2011, the learned trial judge granted respondent’s prayers 1, 2, 3 entirely, and 4 in the alternative. Aggrieved, the appellants appealed to this court via Notice of Appeal containing 4 grounds of appeal and filed on 21/12/2011.

The parties duly filed and exchanged their briefs of argument in compliance with the rules of this court. The appellants’ brief settled by Toyin Bolaji Adegoke (Mrs.) (Director of Civil Litigation and Advisory Services, Osun State) is dated 18/01/2013 and filed on the same day but deemed filed and properly served on 20/2/2013, while the respondent’s brief settled by N. O. Folorunsho (Esq.) is dated 15/2/2013 and filed on the same day.

At the hearing of the appeal on 20/2/2013, K. A. Tijjani (Esq.) (Assistant Chief State Counsel) for the appellants adopted and relied on the appellants’ brief of argument and urged us to allow the appeal and set aside the judgment of the trial court. N. O. Folorunsho (Esq.) while adopting and relying on his brief of argument, urged us to uphold the judgment of the trial court in this appeal.

From the four grounds of appeal contained in their Notice of Appeal, the appellants distilled the following three issues for determination:

1. Whether the court was right to have discountenanced the hearing of the preliminary objection of the appellants which challenged the jurisdiction of the court at the preliminary stage of the suit.
2. Whether the lower court has not denied the appellants fair hearing when it discountenanced the letter of adjournment written and submitted on behalf of the counsel to the appellants that he was otherwise engaged in the Court of Appeal, Akure.
3. Whether it was right for the lower court to have given judgment to the respondent without considering the jurisdiction of court to hear and determine the case as raised before him in the preliminary objection of the appellants before it.

The respondent on his part also distilled three issues for the determination of this appeal, thus:

1. Whether the appellants, without first filing their defence and specifically pleading the point of law they intend to rely upon on the strength of Order 22 Rules 1 and 2 of the High Court (Civil Procedure) Rules of Osun State (as Amended) 2008 which abolished Demurrer proceedings can be heard on the preliminary objection and more particularly in a situation in which the appellants have refused, failed/or neglected to file their defence and incorporate the point of law in line with the ruling of the trial court.
2. Whether the applicable law in the genre of cases of employment with statutory flavour as in the respondent’s case is not the limitation law of Osun State 2003 Cap 70 which puts the limitation period at 5 years from the date on which the cause of action arose with particular reference to the respondent’s contract of employment.
3. Whether by discountenancing a spurious letter of adjournment written by the appellants’ counsel’s that he was otherwise engaged in another matter at the Court of Appeal, Akure on the day the case was slated for definite hearing i.e. 8/4/2011, the trial Judge thereby denied the appellants fair hearing in the case.

Given the similarities in substance, I shall adopt the three issues as formulated by the respondent as being encompassing in resolving this appeal.

ISSUE ONE