Lateef Babatunde Ajao V. The Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office & Anor (2016)

LawGlobal-Hub Lead Judgment Report

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. 

 This is an appeal against the Ruling of K. C. ALOGBA J. of the Lagos State High Court delivered on 28th April, 2010.
The suit in the lower Court was commenced by the Appellant as claimant vide a writ of summons and statement of claim dated 29th February, 2008 together with the lists of witness and documents to be relied upon by the Appellant as well as a written statement on oath.

Pleadings were exchanged by the parties and subsequently on the Defendants filed a notice of preliminary objection dated 15th March, 2010 on the ground that the Claimant/Appellant?s action was statute barred. This objection was upheld by the trial Court in its Ruling of 28th April, 2010.

The Appellant dissatisfied with the Ruling appealed vide an Amended Notice of Appeal dated 14th May, 2015 filed on 15th May, 2015, on three (3) grounds.

The Appellant’s brief is dated 14th May, 2015, and filed 15th May, 2015 same was settled by Abiodun Adewunmi Esq. of A. R. Adewunmi & Co., wherein he settled three issues for determination thus:
(1) ?Whether

1

the learned Judge of the lower Court was right in failing to appreciate that the right of the Appellant to his pension is guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
(2) Whether the learned trial Judge was right when he held that the argument of the Appellant’s counsel that time could not begin to run against the Appellant whilst parties were still negotiating because such a negotiation ought to have started before the expiration of the limitation period.
(3) Whether the learned trial Judge was right when he held that ?… the action is therefore caught by the provision of Section 2(a) of the Public Officer (Protection) Law… The effect of that is that the action becomes unmaintainable at law.?

The Respondents’ brief is settled by Kemi Olugbode (Mrs.) from the Attorney General’s chamber, of the Lagos State Ministry of Justice.
A sole issue has been formulated thus:
“Whether the Appellant can maintain a sustainable cause of action considering the provisions of Section 2(a) of public Officer Protection Law Cap. 26 Laws of Lagos State 1994 which renders the Appellant?s claims statute

2

barred and therefore incompetent and unmaintainable.”

I have carefully perused the issues formulated by the parties to this appeal. I believe this appeal can be adequately determined on a sole issue incorporating the issues formulated by the respective parties.
The issue is:
1. “Whether having regard to the right to pension guaranteed under the 1999 Constitution of the Federal Republic of Nigeria and the circumstances of the instance case, the learned trial judge was right when he held that the Appellant’s action is caught by the provision of Section 2(a) of the Public Officer Protection Law, Cap P26 Laws of Lagos State?”
?
Arguing the appeal, and as to whether the lower Court was right in failing to appreciate that the right of the Appellant to his pension is guaranteed under the Constitution of the Federal Republic of Nigeria 1999 and not a simple contract that could be extinguished by time, Appellant’s counsel referred to Section 210 (1), (2) and (3) of the Constitution which guarantees to a person in the Public Service of a State the right to a pension. Subsection 2 entitles him to it, and same shall not be withheld, while

3

Subsection 3 provides for the review of the pension every five years. Therefore, the Court ought to have taken this into the consideration and cannot be caught by the provisions of the Public Officers Protection Act.

He referred to ADEKOYE v. NSPMC (2009) 5 NWLR (PT. 1134) 322 where the Apex Court held that the Constitution supersedes any other provisions, law or Act, therefore the Public Officers Protection Act is in direct conflict with the Appellant’s right to his terminal benefits being properly calculated. He further referred to ISHOLA v. AJIBOYE (1994) 6 NWLR (PT 352) AT 506.