Mrs. Aviazu Chukwu Nwaka V. The Head of Service, Ebonyi State & Ors (2007)

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DENTON-WEST, J.C.A.

This is an appeal against the ruling of Ekuma Nkama, J. sitting at Abakaliki Judicial Division of the High Court of Ebonyi State in which he struck out the suit of the appellant as plaintiff, following a preliminary objection filed by the defendants questioning the jurisdiction of the court to hear and determine the suit.

The plaintiff/appellant had by an originating summons commenced her action against the defendant in the court below in the following terms:

“1. Whether the defendants are not bound by the rules and regulations, particularly “criterion for 1994/1995 promotions of teaching staff in Abia State of 22/11/95″ existing and in force in Abia State before the promulgation of Decree No. 36 of 1996 which carved out Ebonyi State from Abia State.

2. Whether the 1st defendant in calculating and assessing the plaintiff’s benefit is at liberty to ignore the guidelines and criteria for promotion in force at Abia State at the time the plaintiff got her promotion as headmaster principal class on grade level 12.
3. Alternatively, whether in law, the defendants could, at the retirement of the plaintiff unilaterally alter those guidelines and regulations to the detriment of the plaintiff so as to invalidate her promotion in 1995, based on those guidelines and regulations which were in force in Abia State at the time she was promoted headmaster principal class on grade level 12.
4. If the answer to (1) and (2) are in the negative, a declaration that the plaintiff” is entitled to have her retirement benefits calculated based on grade level 12(9) earned by her at the time of her retirement on the 31st day or December, 2000 having fully satisfied the criteria for promotion to that grade under the guidelines and criteria in Abia State on the 1st day of October, 1996.

However, before the suit could be heard, the 1st and 2nd defendants/respondents raised a preliminary objection on the ground that plaintiff’s action was statute-barred by virtue of section 2 of the Public Officers Protection Act, Cap. 379, Laws of the Federal Republic of Nigeria and that the Court lacked the jurisdiction to entertain the suit. The learned trial Judge upheld the preliminary objection of the 1st and 2nd defendants and struck out the suit.

The plaintiff now appellant in this Court appealed against the decision. In the appellant’s brief filed by her counsel, the following three issues were formulated for the determination of this appeal.

“(a) Whether the trial court was right in striking out the suit at the time it did, on the ground that the suit was statute barred, when the defendants had not filed a counter affidavit to the plaintiff’s affidavit.

(b) Whether having held that “the main point for determination in this argument is whether a preliminary point of law can be raised at this point in time by the learned counsel for the defendants when he has not filed counter-affidavit, the learned trial Judge was in order to have gone ahead to strike out the plaintiff’s action without hearing further argument as to whether the plaintiff’s claims, are in the circumstance of this suit statute-barred.

(c) Whether this suit was indeed statute-barred as claimed by the defendants and as held by the lower Court.”

The 1st and 2nd respondents raised two issues – (a) and (b) which are similar in all material particulars with appellant’s issues (a) and (c). The 3rd respondent adopted the issues raised by the 1st and 2nd respondents and argued in similar vein. I shall therefore consider this appeal with the issues (a) and (c) for determination raised by the appellant.

Arguing issue (a) the learned counsel for the appellant admitted that limitation of action, if properly raised and proved affects the jurisdiction of the Court. He contended that the question of jurisdiction has to be properly raised whether at the Court of first instance or at the appellate court. Arguing along this line, counsel contended that limitation of action was a special defence which must be specifically pleaded by the party seeking its protection? In his view, the defendants cannot avail themselves of the protection provided by limitation of action unless it is pleaded. Counsel referred to Order 24 of the Imo State High Court (Civil Procedure) Rules 1988 applicable to Ebonyi State and submitted that any preliminary point of law to be raised by either party to the suit has to be made part of the pleading of that party which can be heard, before at or after the trial. (Italics mine).

The learned counsel for the appellant observed that upon proper construction of rules of court applicable in Ebonyi State, raising the defence of statute of limitation by way of notice of preliminary objection could not satisfy the requirements of the law. Adding that points of law could only be raised by pleadings. Learned counsel contended that subsection 2 allowed one exception which was that after exchange of pleadings, based on consent of parties, the Court may hear and dispose off the objection before hearing the substantive suit. He submitted that the court was bound to differentiate the two situations that is where there is need to incorporate the objection in pleadings and where such can be dispensed with by virtue of the fact that demurrer is allowed. Adding that where demurrer is not allowed, the proper approach was dismissal or striking out of the defendants’ preliminary objection. Counsel referred to the case of Adesanya v. Olayeni (1999) 2 NWLR (Pt. 592) 558. He submitted that allowing defendants to raise objection before filing their defence would amount to reviving the plea of demurrer which had been dead and buried. He referred to Disu v. Ajilowura (2001) 4 NWLR (Pt. 702) 76. Rounding off his argument on this issue, the learned counsel submitted and insisted that a defendant who wanted to raise a defence of limitation must plead that defence and that defendants’ failure to plead that defence effectively denied them the protection of the law. He cited the following cases in support of that contention: Nwakanwa ” Military Administrator of Abia State (1995) 4 NWLR (Pt. 388) 185 at 188: Ketu & Anor: v. Onikoro & Ors. (1984) 10 SC 265 at 267: Lasisi Fadare & Ors. v. A.-G of Oyo State (1982) 4 SC 1 at 19; Oruobu v. Anekwe (1997) 5 NWLR (Pt. 506) 618 at 623 – 624.

He finally contended on this issue that a counter-affidavit was to an originating summons what statement of defence was to the writ of summons and therefore submitted that since the defendants failed or neglected to file a counter-affidavit to the plaintiff’s originating summons the defence of limitation could not avail them. He referred this court to the case of Ajagungbade III. Adeyelu II (2001) 16 NWLR (Pt. 738) 126 at 195-196. He urged this court to resolve the issue in favour of the appellant.

In response, learned counsel for the respondent’s comended that the learned trial Judge was right in striking out the suit at the time he did on grounds that the suit was statute-bared when the defendant had not filed a counter-affidavit in response to the plaintiff/appellant’s affidavit in support of the originating summons. To support his argument, the learned counsel referred to the case of Texaco Panama Inc. v. Shell Pet. Dev. Corp. of Nig. (2000) 4 NWLR (Pt. 653) 480 at B 484. He stressed that actions commenced by origination summons were tried via affidavit evidence and not by exchange of pleadings as contended by the plaintiff/appellant’s counsel. Counsel referred to Order 38 rule 4 of the Imo State High Court (Civil Procedure) Rules, 1988 to Ebonyi State and the case of Anatogu v. Anatogu (1997) 9 NWLR (Pt. 519) 49. Learned counsel submitted that Order 24 rule 2 High Court (Civil Procedure) Rules of the Imo State High Court (Civil Procedure) Rules applicable to Ebonyi State did not apply in the instant case as Order 24 rule 2 could apply where the action was commenced by writ of summons. Learned counsel to the respondents argued that since the action was commenced by originating summons in which the facts were not in dispute, pleadings were not necessary for the determination of the suit and thus the failure or neglect of the respondents to file a statement of defence wherein the defence of the limitation of action ought to have been specifically pleaded was not fatal to the respondents’ objection. It was counsel’s contention that rule 2 of Order 24 of Imo State High Court (Civil Procedure) Rules was intended to apply in action commenced by writ of summons.