Shamsideen Abolake Bakare V. Nigerian Railway Corporation (2007)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C

The plaintiff, a former staff of the defendant sued the defendant in the High Court of Lagos State claiming the following reliefs:-

(a) A declaration that the letter references No. EDO.1028/ CON/172 dated 25th January, 1993 and letter reference No. 20663/CON/171 dated 8th of March, 1993 written by the defendant purportedly accepting the notice of withdrawal of service of the plaintiff to remain in its employment is irregular, illegal, null and void and of no effect.

(b) A declaration that the plaintiff’s employment has not been duly determined in accordance with the terms and conditions of his services.

(c) An order reinstating the plaintiff to the post and station without loss of seniority and privilege to contemporaries on officiating capacity in the employment of the defendant.

Having ignited this claim by serving the writ of summons on the defendant, parties filed and exchanged their pleadings. The core of the defendant’s defence as pleaded is the statutory bar in section 83(1) of the Nigeria Railway Corporation Acts, Cap. 323, Laws of the Federation, 1990 (NRC Act) that action shall not be brought against the defendant after 12 months from the accrual of cause of action. The plaintiff contended that sections 8(1)(a) of the Limitation Law of Lagos State, 1994 which provided for a limitation of 6 years instead of section 83(1) NRC Act applied to the matter. Thus implying that the instant case is not statute-barred. The matter eventually went to trial and both parties called one witness a piece. At the end of the day, the trial Court found in favour of the defendant that the plaintiff’s case fell within the ambit and scope of section 83(1) NRC Act and not having been instituted within the limitation period of 12 months of the accrual of cause of action as prescribed by section 83(1) NRC, the action is obviously incompetent. The action was accordingly declared statute-barred and struck out accordingly.

Aggrieved by the decision the plaintiff appealed to the Court of Appeal arguing in the main that the cause of action fell within the purview of section 8(1)(a) of the Limitations Law of Lagos State, Cap. 118 as against section 83(1) NRC Act upon which the decision of the trial Court was grounded. The Court of Appeal (Court below) in a considered judgment unanimously upheld the decision of the trial Court as correct and the plaintiff’s action was held statute-barred.

The decision of the trial Court was thus affirmed. The plaintiff still feeling aggrieved by the decision of the court below finally appealed to this Court upon a notice of appeal dated 12/2/02 and therein has raised 3 grounds of appeal against the decision of the court below. In this court the plaintiff is the appellant and the defendant, the respondent. The parties have filed and exchanged their briefs of argument in compliance with the rules of this Court. The appellant in his brief of argument filed on 7/3/2000 has identified 3 issues for determination as follows:-

“1. Is the termination of the contract of employment of the appellant within the purview of section 83(1) of the defendant Act, Cap. 323, LFN, 1990

2. Better still, what is the exact extent of section 83(1) of the Nigerian Railway Corporation Act, Cap. 323, LFN, 1990
3. If the answer to issue No.1 is no, what order should this Honourable Court make in the circumstances

The respondent also filed its respondent’s brief of argument on 6/08/02 and has distilled 3 issues for determination thereof, which are identical with the 3 issues identified in the appellant’s brief of argument. Short of so stating, it literally adopted the appellant’s 3 issues for determination in substance that it serves no use replicating them here. The appellant has in view of the invitation from him to overrule by this court’s earlier decision in NBC v. Bankole (1972) NSCC (Vol. 7) 220 applied for a full court to be constituted to hear and determine the instant appeal. And the court was so constituted. Before us the parties have adopted and relied on their respective briefs of argument. Nothing outside their respective briefs of argument has been urged at the oral hearing of the appeal. The facts of this matter are not in dispute and they are clearly and fully stated at p. 112 of the record from which they have been culled as follows:

“The plaintiff/appellant was employed by the defendant/ respondent on the 1st of July, 1975 as “A”. He was still in the respondent’s employment at its Divisional Office, lbadan when on the 16th November, 1992 he gave the respondent 3 months notice of his intention to withdraw his services as per exhibit C. Before the expiration of the notice the appellant changed his mind and on the 14th of January, 1993 wrote a letter of cancellation of this notice of intention to withdraw his service. See: exhibit D. On the 10th February, 1993 the respondent through its Divisional Manager (West), Ibadan accepted the cancellation. See exhibit F. On 15th of March, 1993 the plaintiff received another letter dated 8th March, 1993 from the Divisional Manager which has attached thereto a letter dated 25th January from the respondent’s Headquarter approving his withdrawal from service and regarded him as having left the service on his own volition. The appellant has commenced this action against the respondent as per the above claim.”

Appellant arguing issues 1 and 2 together and having referred to provision of section 83(1) of NRC Act has contended that the termination of the appellant’s contract of employment with the respondent cannot be said to come within the said provision; not even if one has to rely upon the construction put on a similar provision as per section 61(1) of the Nigerian Broadcasting Corporation Act (NBC Act) as construed in the decision in Nigerian Broadcasting Corporation v. Bankole (1972) N.S.C.C. (Vol. 7) 220 (NBC’s case).

It is submitted that the facts and circumstances in NBC’s case differ substantially from the instant case and so the principle emanating from the construction put on section 61 (1) by the Supreme Court should not bind this court in the construction of section 83(1) of the NRC Act. The appellant further submits that the Court below in construing the provision of section 83(1) has relied even then upon some other extraneous provisions of the N.R.C. Act leading it to the erroneous interpretation that section 83(1) (supra) applied to the appellant’s conditions of employment and so, bringing it within the direct pursuance of the execution of the respondent’s statutory duty.

It is the case of the appellant that it cannot be right that the provisions of section 17(2)(g)(i) and (ii) and section 48 of the NRC Act which the appellant regards as irrelevant and extraneous materials not helpful for arriving at the true meaning of section 83(1) (supra) have, as it were, been conjured up in construing self same section 83(1) of the NRC Act, with the result that upon the community reading of the aforesaid provisions and section 83(1) the court below has been misguided into holding that section 83(1) NRC Act is applicable to the appellant’s contract of employment with the respondent and to the untenable conclusion, that the instant action founded on it is statute-barred.He further submits that the provision of section 83(1) (supra) being clear and unambiguous should not otherwise be construed to lead to injustice as the injustice occasioned to the appellant in this respect. See Ebiriuku v. Ohanyerenwa (I959) SCNLR 146; (1959) FSC 212 and Nabhan v. Nabhan (I967) All NLR 47 and so has submitted that, section 17(2)(a)(i) and (ii) should not be used to clog the clear and unambiguous construction of section 83(1)(supra).