Rasheed Balogun V. Nigeria Custom Services Board & Anor (2002)

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BULKACHUWA, J.C.A.

The appellant as plaintiff, before the Federal High Court, Abuja, initiated this action vide a writ of summons filed on the 15th day of April, 1998, whereby he claims the following reliefs:

“1. A declaration that, the letter reference No, NCS/ ABJ/AP & D/94/S.3/736, dated 1st of August, 1996, dismissing him from service is illegal unconstitutional, null and void.

2. An order that, he be reinstated as Assistant Superintendent of Customs with payment of all his salaries and allowances from 16th of May, 1996, and without loss of increment, promotions and other privileges, he may be entitled to as Assistant Superintendent of Customs.

Before the filing of pleadings, however, the respondent filed a notice of preliminary objection on the ground that, the action is statute barred, having not been filed within three months, when the cause of action arose as provided for by the Board of Customs and Excise (Amendment) Decree No. 77 1993.

The trial court heard argument of counsel on the preliminary objection and in a considered ruling, delivered on the 13th day of May, 1999, dismissed the action for being statute-barred.

The plaintiff now appellant, dissatisfied with the ruling appealed to this court on one ground to wit:

Ground One:

The learned trial Judge erred in law, when he held that Section 5 (a) (1) of Decree No. 77 of 1993, of the Board of Customs and Excise (Amendment) Decree of 1993, covers any act done by the Board, whether in contract or in tort,

Particulars:

(i) The superior courts of records in this country have consistently interpreted similar statutes as not applying to contract cases.

(ii) A true construction of the section, especially the use of the words “act or negligence” exclusively prove that, the act does not cover contract cases.

As is the practice in this court, both parties filed their respective brief of arguments. It is the appellant’s submission that this appeal depends entirely on the proper interpretation of S.5(A) (1) of Decree No. 77 of 1993, the Board of Customs & Excise (Amendment) Decree of 1993. That the provisions of Laws similar to the above law, have come up before our superior courts for interpretation, on several occassions and the courts have always held that where the action is based on contract the provision is not applicable, relying particularly in the case of NPA v. Construzioni General FSC and Anor. (1974) NCSC 622. where Section 97 of the Ports Act was found to be inapplicable.

It is his argument that, the provision is meant to protect the individual members of the Board its staff and/or agent and does not give any immunity to the Board nor does the immunity granted by the said provisions cover cases of contract of employment.

The appellant urges us to allow the appeal, set aside the decision of the trial and remit the case for trial on the merit before another Judge of the Federal High Court, Abuja.