Forestry Research Institute Of Nigeria V. Mr. I. A. Enaifoghe Gold (2007) LLJR-SC

Forestry Research Institute Of Nigeria V. Mr. I. A. Enaifoghe Gold (2007)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

The case of the plaintiff, (who is now the respondent) in the High Court of Oyo State holden in Ibadan, is that he was employed as a clerical officer by the defendant (who is now the appellant), in 1974. He was appointed an Assistant Secretary in 1981, after obtaining a degree on study leave without pay between 1977 and 1980, and thereafter he was promoted to the post of Assistant Secretary 1 , a post in which his duties included disbursement of money. In 1986 he was given a query by the management of the defendant for alleged irregularities in the disbursement of cash advance granted to him. A sub-committee was set up to investigate the irregularities, and he made written memorandum, which the committee considered, and recommended that the plaintiff be warned. In 1987, a Ministerial Administrative Panel of Inquiry into the affairs of the defendant visited the defendant, and the 1986 irregularities were again raised before the panel and the plaintiff was invited again to defend himself, and he submitted a written memorandum to the allegations against him for which he had already been punished in 1986. At the end of the investigation the plaintiff was dismissed, vide a letter of 5th October, 1988, and according to him the dismissal was illegal, unlawful, unconstitutional, null and void. The plaintiff, stated that he had been searching for alternative job to mitigate the sufferings brought by his dismissal, but to no avail. The reliefs sought by the plaintiff were as follows:

“(i) Declaration that the purported letter of dismissal dated 5th October, 1988 written by the defendant to the plaintiff and the dismissal of the plaintiff emanating there from are null, void, unconstitutional and of no effect at all.

(ii) Declaration that the plaintiff is for all time and purposes and in spite of the letter of dismissal of 5th October, 1988 was Assistant Secretary 1 of the defendant as at October, 1988.

(iii) An order of this Honourable court reinstating the plaintiff as an Assistant Secretary 1 of the defendant.

(iv) Declaration that as such Assistant Secretary I of the defendant, the plaintiff is entitled to be paid all his salary or wages, allowances or any other entitlement made up as hereunder …..”

In its statement of defense the defendant denied some of the allegations above, but admitted some to the extent that the plaintiff was eventually dismissed, in 1988, but that the earlier investigation of 1986 was not conclusive, and so the plaintiffs promotion was deferred. In view of this, the plaintiff’s matter was investigated by a Ministerial Panel of Inquiry in 1987, as the first and only panel or body to sit on the allegation against the plaintiff. The defendant has stated that the plaintiff has since his dismissal been gainfully engaged in trading activities to wit he has bagged contracts of supply from the defendant. On completion of leadings, evidence were adduced, and they were evaluated by the learned trial Judge, who at the end of the day found in favour of the plaintiff, and granted the reliefs sought by the plaintiff. Dissatisfied with the judgment, the defendant appealed to the Court of Appeal on several grounds of appeal. The appeal was dismissed, and the defendant has appealed to this court again, and this time on three grounds of appeal. As is the practice in this court parties exchanged briefs of argument, to wit there was also an appellant’s reply brief which were adopted at the hearing of the appeal. Three issues for determination were raised in the appellant’s brief of argument, and the issues are:

“(i) Whether the respondent’s action was not statute-barred by the provisions of section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990 thereby ousting the jurisdiction of the court.

(ii) Whether the learned Justices of the Court of Appeal were right in holding that the respondent’s employment was statutorily protected and therefore entitled to an order of re-instatement.

(iii) Whether the learned Justices of the Court of Appeal were right when they held that there was no evidence to the contrary that the respondent could be disciplined by way of exhibit J not withstanding the previous disciplinary action taken by the appellant.”

In his own brief of argument, the respondent raised only two issues for determination, which are:”(a) Whether the learned Justices of the Court of Appeal were right in affirming the findings, and judgment of the trial court that the respondent’s employment was statutorily protected to justify the order of reinstatement of the respondent.

(b) Whether the Court of Appeal was right in holding that the respondent could not be punished twice for the same offence.”In his brief of argument, the respondent raised a preliminary objection on ground (i) of the grounds of appeal, which according to learned counsel raised an issue which was never raised before the lower court and no leave was sought by the appellant in order to raise same. According to learned counsel, the appellant was granted leave by the Court of Appeal to amend its notice of appeal on 23/2/2000, and in pursuant to the said leave, the appellant filed an amended notice of appeal on 29/2/2000, and no where in the appellant’s brief or the amended notice of appeal was the provision of section 2(a) of the Public Officers Protection Act, Cap. 379 Laws of Nigeria 1990 mentioned. Learned counsel set out cases where conditions that a party must satisfy before he can raise fresh point at the Supreme Court were laid down. These cases are Skenconsult ( Nig.) Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 SC 6; Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) p.212; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) p. 514;

and Agbaje v.Adigun (1993) 1 NWLR (Pt. 269) p. 261.

Learned counsel for the appellant in its appellant’s reply brief of argument submitted that the notice of preliminary objection to the first ground of appeal is misconceived and ought to be dismissed. He said the issue was raised in the court below with leave of the court and the learned Justices fully considered it but decided the issue against the appellant in the judgment. It is on record that the learned counsel for the appellant on 23/ 2/2000 moved a motion on notice dated 10/12/99, in which the following prayers were sought:

“(i) Leave to amend the notice of appeal dated 16th April, 1998 by filing additional grounds of appeal as set out in the schedule hereto attached.

(ii) Leave to raise a fresh point on appeal namely the jurisdiction of the trial court, which issue was not raised during trial in the court below.

(iii) ……..”

In the supporting affidavit to the motion, one Ademola Busari deposed to the following averments amongst others:

“6. Upon discovery of the said record he commenced its study and thereafter informed me and I verily believe that it will be necessary to seek leave of this court to amend the prior notice of appeal filed and dated April, 1998 in order to prosecute the appeal properly. The said counsel further informed me and I verily believe that it would also be necessary to obtain leave of this Honourable Court to raise a fresh issue which was not canvassed to the trial court namely: the jurisdiction of the trial court to sit on the suit.” The prayers sought were granted, the orders of which included the following:

“Leave is also given to the appellant/applicant to raise a fresh point on jurisdiction of the trial court which was not raised during final in the court below.”

Contrary to the submission of learned counsel for the respondent that the notice of appeal in the Court of Appeal made no mention of section 2(a) of the Public Officers Protection Act, ground (7) of the amended notice of appeal on page 52 of the record of proceedings is very clear on this. I will reproduce this ground (7) here below. It reads:

“7. The trial court erred in law when it entertained and determined the suit when the said court lacked jurisdiction to entertain or adjudicate in the proceedings.Particulars

(i) The jurisdiction of the court was ousted by the provision of the Public Officers’ Protection Law Cap. 106, Cap. 103, Laws of Oyo State of Nigeria which were applicable to the suit and was manifest on the pleadings.

(ii) The said law had terminated the respondent’s cause of action and thereby robbed the court of jurisdiction as the cause of action accrued on 5th October, 1988 while the suit was not filed until 7th October, 1991.”

Particular (1) above talks of the Public Officers Protection Law,so I am at a loss as to why learned counsel made that submission, or did he do so because particular (i) is based on Laws of Oyo State not Laws of Nigeria Is there an obvious difference in the two laws Perhaps I should look at the two laws to consider any existing difference in the provisions. It is instructive to note that whilst the preamble in the Public Officers Protection Act, Cap. 379, of the 1990 Laws of the Federation of Nigeria reads as follows:

“An Act to provide for the protection against actions of persons acting in the execution of public duties:”, the preamble in the Oyo State Law Cap. 103 is,

“A law to provide for the protection against actions of persons acting in the execution of public duties.”

Section (2) of the two laws have the same provisions and are in pari materia, so the fact that the exact relevant law was not stated is inconsequential, considering the nature of the issue, which is on jurisdiction. It is instructive to note that paragraph (b) of the Supporting affidavit, which I have reproduced above is inter related with ground of amended notice of appeal, equally reproduced above. It follows that what the appellant sought to raise as fresh issue was an issue on jurisdiction. Then in its brief of argument in the court below, the appellant raised as an issue for determination, the following:

“Whether the respondent’s cause of action against the appellant having accrued since 5th October, 1988 was not barred by the Public Officers’ Protection Law of Oyo State as the suit was not filed until 8th October, 1991.” The learned justice of the Court of Appeal dealt with the above issue and indeed found on it in his judgment. See page 192 of the printed record of proceedings. Besides, the issue is one of jurisdiction which can be raised at any stage of proceedings. See Oloriode v. Oyebi (1984) 5 SC 1; (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 21 SC 260; (1985) 1 NWLR (Pt.2) 195; and Oloba v. Akereja (1988) 3 NWLR (Pt. 84) p. 508.

I think I have said enough on this preliminary objection, and I need not over flog the issue as there is no merit in it. I therefore overrule the objection, and hold that ground (ii) of this appeal is valid and competent and will remain so. The authorities cited by learned counsel on conditions to be satisfied before raising fresh point at the Supreme Court, though apposite are not relevant.

The treatment of this appeal will be based on the appellant’s issues supra, starting with issue (1). In arguing this issue learned counsel for the appellant argued that although great emphasis was placed in the court below on the provisions of the Public Protection Officers Law of Oyo State which was held inapplicable, the court declined to countenance submissions made to it on the applicability (in the alternative) of the provisions of the Public Officers Protection Act, Cap. 379, LFN. Learned counsel submitted that the appellant, being a body statutorily established by Federal Legislation is entitled to the protection afforded by section 2(a) Public Officers Protection

Act being a person within the provisions of the said law and the interpretation of the word ‘person’ in the cases of Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (Pt. 584) p.1; Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) p. 458; Kolo v. A.-G., Federation (2003) 10 NWLR (Pt. 829) p. 602; and Daudu v. University of Agriculture Makurdi (2003) FWLR (Pt. 176) p. 687; (2002) 17 NWLR (Pt.796) 362.

Learned counsel further submitted that since the respondent’s cause of action accrued by virtue of exhibit J on 5th October, 1988, time began to run and in order to bring an action against the appellant, the plaintiff/respondent ought to have filed his action within three months of 5th October 1988, but the action was not filed until 8th October, 1991. It is his submission also that on the authority of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) p.1, that since the respondent failed to file the suit within three months, the Public Officers protection Act removed his right of action, the right of judicial relief and left him with a bare and empty cause of action which he could not enforce. He placed reliance on the cases of Texaco Panama Inc. v. S.P.D. C. Ltd. (2002) 5 NWLR (Pt. 759) page 209; Fred Egbe v. Alhaji A. Alhaji & Ors. (1990) 1 NWLR (Pt. 128) p.546; and Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Pt. 245) p.1. The legal consequences of the respondent’s claims being statute barred is that in such circumstance no court has jurisdiction to entertain the action. Learned counsel referred to the cases of John E. Emiator v. Nigerian Army & Ors. (1999) 12 NWLR (Pt. 631) p. 362; and Andrew A. Ajayi v. Military Administrator Ondo State & 2 Ors. (1997) 5 NWLR (Pt. 504) p. 237.

The learned counsel for the respondent did not pay attention to the submissions of learned counsel for the appellant on this issue in his argument on the main appeal. It is only in his argument on the preliminary objection that learned counsel addressed the issue in a way, by submitting that as a matter of pleading, the appellant is not entitled to raise this issue, the same not having been raised in its pleadings before the trial court. Learned counsel referred to the provision of Order 25 rule 6(1) of the Oyo State High Court Civil Procedure Rules of 1988, which stipulates thus:

“6(1) A party shall plead specifically any matter for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”

There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate court, vide leave to do so even if he did not do so at the court of first instance, because such issue borders on the fundamental issue of jurisdiction. The appellant in this case, realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.

In its appellant’s reply brief, learned counsel for the appellant has submitted that there exists exception to the requirement in the said Order 25 rule 6(1) above namely: where the date or time of accrual of cause of action is clearly stated in the writ of summons or statement of claim and there should be no need to call evidence to prove and or disprove same, the defendant need not plead it to be able to raise the defence. He placed reliance on the cases of Amata v.Omofuma (1997) 2 NWLR (Pt. 485) p. 93; Oyebanji & Ors. v. Lawanson & Ors. (2004) 13 NWLR (Pt.889) 62. As much as the former case is relevant to the issue of limitation of action, it was a counter claim that triggered off the issue. In the former case what was in controversy was how and when an action could be determined to be statute barred, the controversy here is also the necessity to specifically raise the defence of statute of limitation, as provided in Order 25 rule 6(1) of the Oyo State Court’s Rules. It is instructive to note however, that although the principle propounded in the Amata ‘s case (supra) could be applied to this case, (i.e. that the plaintiff’s pleading was enough to determine whether this plaintiff/respondent’s action was statute barred or not) the issue of limitation did not arise in the court of first instance. This issue arose on appeal, as a fresh issue. Indeed a thorough perusal of the respondent’s amended statement of claim and the writ in this case is illuminating enough of the period that has elapsed between the date of the respondent’s dismissal from the appellant’s employment vide exhibit J which was dated 5/10/88, which is when the cause of action arose and the date the suit was commenced, which was dated 7/10/91. More so, the respondent’s amended statement of claim gave a clear graphic picture of the sequence of events, which clearly shows that time within which the respondent was allowed by law to commence the action has elapsed, vide the provision of the Public Officers Protection Act

(supra) which stipulates thus:

“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect –

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof…”

Paragraph (2) of the respondents, amended statement of claim clearly shows that the plaintiff’s action was taken outside the period stipulated above. The said paragraph (2) reads as follows:

“20. The plaintiff shall contend that his dismissal vide the letter of October, 5th 1988 by the defendant is illegal, unlawful, unconstitutional, null and void.” I will state here that the dismissal of the respondent having taken place in 1988, the respondent’s cause of action arose three months thereafter, and not three years after. In this respect, I find solace in the dicta of Oputa, JSC in the case of Fred Egbe v.Honourable Justice Adefarasin (supra) which is encapsulated thus:

“A cause of action is thus said to be statute-barred if in respect of its proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. How does one determine the period of limitation. The answer is simply – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”

In this appeal, the respondent having not brought the action within the time prescribed by the Public Officers Protection Act (supra), he was definitely statute-barred from commencing the action. The action he brought, (having been outside the prescribed period) is against the provisions of the said law and so does not give rise to any cause of action. Again, the High Court was bereft of jurisdiction to hear the matter, as the law governing the action has not been complied with. Once a court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication will be adjudged a nullity by an appellate court. The case of A. lbegbu v Lagos City Council Caretaker Committee and Anor. (1974) 1 All NLR 363 relied upon by the lower court to refuse the appellant’s ground of appeal hinged on the statute of limitation is not apposite. Jurisdiction is a very fundamental issue that robs on the competence of a court to hear and decide a matter. A party that submits itself to a Court for adjudication of a matter for which he is seeking redress, but without cause of action, cannot clothe the Court with jurisdiction to hear and determine the matter, and even if by an oversight the court vests itself with jurisdiction and decides the case, an appellate court is bound to nullify the decision.

Indeed, I repeat the principle of the law that it is trite that an issue on jurisdiction can be raised at any stage of legal proceedings, be it in the Court of Appeal, or even this court. See Oloriode v. Oyebi and the other cases on this position of the law.

A proceeding that emanated from a Court without jurisdiction is like one that never took place at all, because the Court should not have entertained the suit, for it is incompetent to do so. This is the exact position in this appeal. The court of first instance had no jurisdiction to hear the matter, and so its decision was a nullity and has to be treated as such (even if at that stage the issue of limitation of action was not raised). See Shell Petroleum Development Co.(Nig.) Ltd. v.Abel Isaiah and Ors. (2001) 11 NWLR (Pt. 723) p.168; and Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122. In the circumstance, issue (1) above is resolved in favour of the appellant. Ground of appeal No. (1) to which the issue is married succeeds, and it is hereby allowed. I think the determination of this issue about jurisdiction disposes of the entire appeal, and the need to treat the other issues raised is obviated. The end result is that the appeal succeeds and it is hereby allowed. The respondent’s claims in the High Court of Oyo State are hereby struck out. I hereby order costs of N10,000.00 in favour of the appellant against the defendant.

SC.40/2004