Stephen A. Odeyemi V. Nigeria Telecommunications Plc (2009)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

This appeal is against the Ruling of the Federal High Court Lagos presided over by Gumel J. (as he then was) delivered on 12th July, 2002 dismissing the suit filed by the plaintiff now appellant on the ground that the action was statute – barred by virtue of S. 2 (a) of the public officers Protection Act Cap 41 Laws of the Federation of Nigeria 2004.

The Plaintiff now appellant instituted an action at the Federal High Court Lagos seeking among other things a declaration that the purported dismissal by the defendant now respondent was effected without authority and is therefore illegal, invalid and ineffectual. The reliefs sought are contained in paragraph 22 of the Statement of Claim appearing at pages 5 – 7 of the record. Respondent did not file any statement of defence. The learned trial Judge proceeded to hear the matter and appellant testified but did not call any witness. After the conclusion of trial and final address the matter was adjourned for judgment. In the interim the learned trial judge invited written address from counsel on whether the action is caught up by limitation of time under S.2 (a) of the Public Officers Protection Act. Only counsel to the appellant filed a written address. The learned trial judge found that the suit was time barred and consequently dismissed same. In doing so, learned trial judge in his considered ruling concluded as follows:-

“It is very clear that this suit was commenced almost three years since the dismissal of the plaintiff from the series (sic) of the Defendant. Based on the foregoing observations and remarks, I have no doubt in my mind that this action was commenced outside the period stipulated by law. It is therefore caught up by the limitation of time provisions under section 2(a).

This without doubt, leaves the plaintiff with an action that is statute – barred. It is a barren cause of action that is not capable of being legally enforced. On the consequence of this, the Supreme Court had decided in Egbe v. Adefarasin and Eboigbe v. N.N.P C that such actions must be dismissed for want of capacity on the part of the courts to adjudicate on same. This suit is therefore, hereby dismissed for, having been statute – barred.”

Dissatisfied with the decision of the learned trial judge, appellant filed notice of appeal on the 16th February, 2004 containing two grounds of appeal. The appellant’s counsel on 10th March, 2005 sought and obtained leave of this court to amend its notice of appeal and raise new points not canvassed at the lower court. The amended notice of appeal dated 15th March, 2005, contained three grounds of appeal. In accordance with the Practice and Procedure of this court appellant’s counsel Mr. Onamade filed brief of argument on 5/5/05. A reply brief to respondent’s brief was equally filed on 2/9/07. Respondent on the other hand filed respondent’s brief on 22/2/2007.

At the hearing of the appeal, appellant’s counsel relied and adopted appellants brief as well as the reply brief. Respondent’s brief was deemed argued because there was proof of service of the hearing notice on the respondent. Appellant’s counsel also abandoned issue 1 and ground 1 of the amended grounds of appeal and same were struck out.

In the appellant’s brief four issues were framed for determination in this appeal. Issue 1 has been struck out as such the relevant issues are (2) (3) and (4) which read as follows:-

(2). Whether the act of dismissal of the applicant by virtue of letter of dismissal dated 27th February, 1997 was in compliance with the Public Officers (Special Provision) Act Decree No. 17 of 1984, and if not, what is the effect.

(3). Whether in the circumstances of the case, the immunity under s. 2(a) Public Officers Protection Act will apply.

(4). What is the appropriate order to make where the court now finds that S. 2(a) Public Officers Protection Act does not apply.

The respondent, on the other hand, contends that these four issues arise for determination in this appeal.

1. Whether it is within the law to have issues in the appellant’s brief of argument than the grounds of appeal.
2. Whether the learned trial judge was wrong in dismissing the suit on the grounds that it was statute barred based on the Provision of S.2 (a) of the Public Officers Protection Act.
3. Whether the trial judge was right to raise an issue suo motu.
4. Whether the limitation of time was rightly computed by the trial Judge.

When the appeal was reserved for judgment both counsel were invited to further address the court as to whether Federal High Court has jurisdiction to hear and determine issue relating to contract of service and whether respondent is a Federal Government Agency. On 22/01/09 Respondent’s counsel though served failed to appear in court. Mr. Onamade contended that section 251(1) (P) (q) and (r) confers jurisdiction on Federal High Court to entertain subject matter of this appeal that is termination of contract of service. He referred to NEPA Vs Edegbenro (2003) Vol 9 Weekly Report of Nigeria 21 and Awokunle v. NEPA (2008) Vol. 39 WRN 172 at 190 to buttress his submission. Learned counsel urged the court to take judicial notice of the fact that NITEL is an acronym for Nigeria Telecommunications Plc and to hold that it is an organ of the Federal Government established by law through whom Federal Government carries out its functions. See Awokunle v. NEPA supra. He still urged the court to allow the appeal.

In determining whether a court has jurisdiction in a matter or not the court will examine or consider the nature of the Plaintiffs claim as disclosed in his writ of summons and statement of claim. See Mustapha v. Governor Lagos State (1987) 2 NWLR (Pt 58) 539; Tukur v. Govt Gongola State (1989) 4 NWLR (Pt 117) 392 and OHMB v. Garba (2002) 14 NWLR (Pt 788) 538.