Alhaji Bello Nasir Vs Civil Service Commission (2010)

LAWGLOBAL HUB Lead Judgment Report

A. M. MUKHTAR, JSC. 

The appellant as plaintiff in the High Court of Justice of Kano State sought the following reliefs against the respondents:-

“(a) A declaration that the plaintiff still (sic) in the service of the defendants and that he is entitled to his full remunerations and leave allowances since dismissal.

(b) A declaration that the letter of his dismissal dated 30th January, 1996 and letter of interdiction dated 22nd August 1995 are null and void and of no effect.

(c) A declaration that the plaintiff is entitled to all his allowances as an employee of the defendants.

(d) A declaration that the plaintiff who is an employee of the defendants be with immediate effect re-instated by the defendants.

” Pleadings were exchanged by the parties. After the appellant had given evidence and closed his case, the defendant/respondents filed their statement of defence. On 18/4/2000 learned counsel for the respondents moved a motion for the dismissal of the suit for being statute barred. The learned counsel for the appellant filed a counter affidavit. Both learned counsel addressed the court on the motion, but the learned trial judge rather than rule on it made the following observation:-

“I am of the opinion that the implication of this application will entail my giving a ruling which in effect would have the implication of a final judgment. And because of this I wish to serve my ruling until the end of the trial and make application and the ruling to form part of my judgment.” Indeed the learned trial after going through the gamut of appraising the evidence before him found as follows in his judgment in the final analysis:- “At the end of the day I find and hold that this suit was filed outside the 3 month period required by the law and is therefore statute barred.”

Aggrieved by the decision the plaintiff appealed to the Court of Appeal Kaduna division. The court affirmed the decision of the court of first instance and dismissed the appeal. Again the plaintiff was aggrieved by the dismissal of his appeal, and he has appealed to this court. As is the practice in this court and in accordance with the rules of court, both learned counsel for the parties exchanged briefs of argument to this appeal, which were adopted at the hearing of the appeal. Issues for determination were formulated in the briefs, and I will reproduce those in the appellant’s amended brief of argument here below. They are:-

“1. Whether the lower court was right in saying that the trial court considered all the issues raised by the Appellant in his reply to the preliminary objection raised by the respondent? If the answer is in the negative whether such denial or consideration of those issues amounted to the breach of rules of hearing as enshrined in the 1999 Constitution?……………………………………….

2. Whether the lower court has correctly interpreted and applied the provisions of order 24 Rules (2) and (3) and order 25 Rule 6 (1) and (35) of the Kano State High Court (Civil procedure) Rules 1988………………………………………
3. Whether the statute of Limitation can be applicable in the circumstance of this matter having regard to the case of OFFOBOCHE VS OGOJA LGS (2201) (sic) 7 SCNJ 468 AT 483, 490 – 49 AND EKEOGU VS ALIRI (1990) NWLR (part 126) 345 at 354, and the contractual nature of the relationship between the Appellant and Respondents……………………………………” It is on record that the grounds upon which the application that was brought (pursuant to Section 2(9) of the Public Officers (protection) Law Cap.121 Laws of Kano State for the dismissal of the suit) are as follows:-

“4(b) That following proof of allegation of gross misconduct of hiding of files the plaintiff/respondent was dismissed . (c) That the letter of dismissal was served on the defendant/respondent on 30th January, 1996. (d) That the plaintiff/respondent filed this action on 25th June, 1996 verily six months after he was served with the letter of dismissal. (e) That it will be in the interest of justice to dismiss the action. (f) That the dismissal of this action will not prejudice the plaintiff/respondent.”

The appellant filed a counter-affidavit, the vital depositions of which read thus:- “3 (c) That the Statement of Claim was served on the Defendant/Applicants counsel Amina Y. Yargaya (Mrs) on the 6/3/98. (e) That on the 6/3/97 when Appellant’s solicitor was in court the matter was adjourned to 30/4/97 to enable Applicant’s counsel file their Statement of Defence. (f) That on the 30/4/97, the Plaintiff/Respondent opened his case and same was adjourned to 23/6/97 for continuation of hearing. That the Applicants and their counsel were absent from court on the said 30/4/97 without giving any explanation.” The learned counsel for the appellant has submitted that the learned trial judged was in error when after considering the evidence before him he held interalia in his judgment as follows:- “It is evidence that the plaintiff was dismissed from service on the 30th January, 1990 whereas he filed and commence (sic) this suit on 28th June, 1996. The argument of Mr. Surajo Director of Civil Litigation are therefore in order that this suit was not commence (sic) within the three month required by the law to wit (sic) the public officers protection law. I am buttress (sic) in my opinion by the decision in Ibrahim vs JSC (1998) 14 NWLR (pt. 584) 1 at page 33. At the end of the day I find and hold that this suit was filed outside the 3 month period required by the law and is therefore statute barred.”

The finding of the lower court on the ruling of the trial court was also attacked by learned counsel, submitting that it cannot be supported having regards to what is contained in the record of proceedings of the trial court. According to him the breach of the failure of the trial judge not giving a detailed ruling deprived the appellant of knowing the position of the court on the issue raised and argued, and by this failure the right of fair hearing of the appellant has been infringed. He placed reliance on the case of Unibiz Nigeria Ltd. v. Commercial Bank Credit Lyonnais Ltd 2003 13 NSCQR 292 at 311. On moves to settle the matter, the learned counsel for the respondent has argued that the case of Nwadiaro v. Shell Petroleum (1990) 5 NWLR (pt.150) 322 relied upon by the PAGE| 5 appellant is inapplicable, because in that case, the court of Appeal found that the defendant did not file a statement of defence, the court of Appeal found that there was negotiation and admission of liability, whereas the reverse is the case in the instant case. It was further submitted that even on the authority of Nwadiaro’s case negotiation cannot stop time from running.

On the right to fair hearing, it was argued that the appellant was heard by the trail court as was found by the Court of Appeal, the appellant has no right to insist that the judgment should contain chapter and verse of all his submissions. He placed reliance on the case of Dike v. Nzeka 1989 4 NWLR part 34 page 144. On the point that the issue of Statute of Limitation was not raised in the pleading, and that demurer proceedings have been abolished, learned counsel has submitted that the respondents were within their rights to raise the objection on Statute of limitation before trial or in the course of the trial, and he referred to Aguda, Practice, & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, 2nd Edition, at page, 279. There is no gain saying that the application and objection that is the subject of controversy now was on point of law, being one on jurisdiction of the trial court to hear and determine the case. That being the case, all the learned trial judge needed to do was to consider the provision of the law under which it was brought and the affidavit evidence in support. This as can be seen on pages 76 – 77 of the record of proceedings was done by the learned trial.