National Examination Council (Neco) V. Sunday Ojo Tokode (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SULAIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment)

The Plaintiff, now the Respondent herein, commenced the suit vide a writ of summons filed on 15/2/2006, against the Appellant who was the Defendant, an Examination body established by the Federal Government of Nigeria vide of NECO Act of 2002.

The Defendant is a body corporate having statutory powers and function over the general control of the conduct of Internal and External Senior Secondary School Certificate and West African Certificate Examinations. It has its Port Harcourt office along Creek Road Port Harcourt, Nigeria.

The plaintiff was admitted into Government secondary School Onne in Eleme Local Government Area of Rivers State in the year 1998 as a Senior Secondary 1 (SS1) student to read for his Secondary Certificate.

During his final year in 2000 the Plaintiff registered for the senior Secondary School Exanimation (otherwise known as NECO Examination) for Mathematics, English Language, physics, chemistry, Biology, Economics, Agricultural Science, Christian Religious Studies and Government. The plaintiff sat for the Examinations, for which result in the normal course of event ought to be released within one year, not later than the month of May, 2001. The result was however released sometime in that year, whereby the results for the centre where the plaintiff sat for the said NECO Examination were sent by the Defendant and published at Government Secondary School Onne. Mistakes were discovered in the results. The result for the subjects of physics and chemistry which the plaintiff sat for was not released, while the result for Government, which the plaintiff sat, was released with score as ‘A1’. The subject of Geography, which the plaintiff did not register for, was also included in the plaintiff’s result as one of the subject’s which the plaintiff sat for. The plaintiff was embarrassed and angry. He made all efforts humanly possible to see to the correction of omission, mistakes and errors, yet all his efforts proved abortive. He felt his result in physics and Chemistry was arbitrarily withheld. Felt aggrieved the plaintiff filed this claiming for inter alia, a mandatory order compelling Defendant to release his result in physics the May/June NECO and chemistry of Examination conducted by the Defendant. He also claimed N10 Million damages for losses and sufferings.

The Defendant by a Notice of preliminary objection dated 15/8/2006 and filed on 29/8/2006, urged the trial court to strike out the suit on the grounds that the suit is statute-barred, not having been commenced within THREE MONTHS from the case of action. In a considered Ruling delivered on 20/11/2006 the Learned Trial Judge dismissed the Defendant’s preliminary objection.

Dissatisfied with this Ruling the Defendant lodged this Notice of appeal on 20/11/2006 on one ground as set out on pages 50-51 of the Record of Appeal.

In compliance with the Rules of this Court, Learned counsel for the parties filed and exchanged their respective briefs of argument.

This appeal came up for hearing on 13/1/2010. Let it be noted that on 20/11/2008 this appeal was adjourned to 1/4/2009; the court did not sit and it was further adjourned to 15/6/2009 still, the court did not sit and the matter was adjourned to 13/1/2010.

Counsels for the parties were in court. Learned Counsel for the Appellant was clearly on Notice of the appeal. No reason has been proffered for his absence. Appellant’s brief of argument has been duly filed and by virtue of Order 17 Rules 9 (4) of the Court of Appeal Rules 2007, the argument therein presented in the Appellant brief is taken and deemed argued. The Appellant’s brief of argument settled by Ibrahim Isiyaku SAN, was dated 2nd day of November and filed on 30th day of November, 2007. The Appellant’s Reply Brief dated 28/12/2007 was filed on 14/1/2008.

Sole issue raised by the Appellant for the determination of this appeal is as follows:

“3.01. whether the suit is caught by the provision of section 2 (a) of the public officers protection Act cap. 379 Laws of the Federation of Nigeria 1990 as to oust the Jurisdiction of the Trial Court.”

However, on the said 13/1/2010 when this appeal was heard, Learned Counsel for the Respondent’s H.D.D. UWOM Esq. leading S.O. ELUKU Esq. identified the Respondents brief of argument he settled. It was dated 24/12/2007 and filed on that date. Learned counsel adopted the said brief in which single issue raised therein was substantially similar with that of the Appellant.

It is as follows: