Charles Ejimofor & Ors. V. Nigerian Telecommunications Ltd. & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

In the Federal High Court sitting in Yola, Adamawa State of Nigeria, each of the seven appellants in this appeal, as plaintiffs and employees of the 1st respondents/defendants took out a writ of summons against them, and the other respondents in this appeal. Their claims arose out of the same events in the course of their employment with the respondents.

Each one sought the following reliefs:-

1. A declaration that the letter of dismissal issued by the respondents was null and void and of no effect.
2. Payment of unpaid salaries and allowances.
3. Special damages
4. General damages.

Each plaintiff set out the particulars of his claim as constituted in his pleadings. By order of the trial court, the suits were consolidated and heard together. After some delay, which looked as if the defendants were intent on obstructing the trial of the suits, the defendants filed their statement of defence. This was after the trial court had refused two applications filed in the course of time by them seeking to strike out the suits on the grounds that they were statute-barred. It was the contention of the defendants either, that the actions were not brought within 3 months after the cause of action arose or that the court had no jurisdiction over the matter by virtue of Decree 17 of 1984. The first of such motion filed on 30/8/99 to strike out the suit for being statute-barred, had the ruling delivered on 13/11/2000. The court held that the provision of Order 25 rule 1 of the Federal High Court Rules must be complied with – This requires that before such an issue as lack of jurisdiction will be entertained, pleadings must have been filed. The rule is mandatory and the application was declared premature. On the second motion by the respondents, the ruling of the trial Judge was delivered on 14/3/2001. The court below held that the action of the appellants had not been caught by Decree 17 of 1984 and that the court had jurisdiction to entertain it. That the respondent had not shown that Anurukem had authority to sign the letters of dismissal or act on behalf of the President and that the letters were null and void. He dismissed the application.

The consolidated suit later went to trial, and all the plaintiffs/appellants led copious evidence in support of their claims. The defence did not call any evidence. Rather, on 8/10/2001, learned counsel for the defendants/respondents once more, and a third time, applied for an order dismissing the suit on the ground that it was statute-barred. In his ruling, the learned trial Judge, Shakarho J., in a considered ruling, struck out the suits as prayed.

Dissatisfied, the plaintiffs have appealed to this court on 6 grounds.

Learned counsel for the appellants, Eyitayo Jegede, Esq and, for the respondents, M.S. Abubakar, Esq has filed briefs of argument in which they distilled issues for determination from the 6 grounds of appeal. The appellants’ 3 issues married to their grounds of appeal are: –

1. Whether the application of the respondents seeking to strike out the appellant’s suit was not itself an abuse of court’s processes having regard to the earlier pronouncement that the letter of dismissal was void.

(Ground 4).

2. Whether having regard to the facts disclosed in the pleadings and at the hearing, can it be said that the suit of the appellants are statute-barred (Grounds 1, 3, 5 and 6).
3. Whether the learned trial Judge’s refusal to consider the authorities cited by counsel for the appellants in his ruling did not occasion a miscarriage of justice (ground 2).

The respondents’ 2 issues are:

1. Whether the issuance of the dismissal letter by the respondents alone, a cause of action had accrued to the appellants (said to cover grounds 1,2,3,5 and 6).
2. Whether the trial Federal High Court has (sic) rightly directed himself in law in his consideration of the respondents’ application dated 5th October, 2001 and finally struck out the appellants’ suits. Before addressing the issues, I would set out some background facts concerning the suits filed in the court below on 2nd June, 1999 leading to its ruling on 6th November, 2001 and the appeal herein.

The appellants were permanent and pensionable employees of the 1st respondents and of various standing and years of service in its employment. Sometime and about the same time in 1996, they were rounded up and arrested by security agents. The averment in paragraph 5 of the statement of claim and the evidence of the appellants on record which were not controverted are that their arrest was in connection with alleged telecommunications offences. They were, over time, kept in detention at various detention centres, first at the State Security Service Detention Centre in Yola, Adamawa State, then, Criminal Investigation Department (C.LD) detention center, Yola, later C.I.D. Detention Centre, Bauchi, and Federal Prisons Bauchi. This was from February – November, 1996 when the Police and Task Force on Telecommunication Offences claimed that they were investigating some offences. The appellants were questioned about telephone installations and services which they handled in the course of their employment as employees of the first respondent – NITEL Plc. They were later arraigned before the Miscellaneous Offences Tribunal sitting at Jos, later in Lafia and then in Yola. All this was going on till 7th May, 1999 when, pursuant to an apphcation made on their behalf by their counsel, they were discharged for want of prosecution, over 3 years after their arrest. Sometime in October 1996 while in detention, the respondents, by an internal memo, placed the appellants on suspension from duty without pay. While the arraignment of the appellants was proceeding, by a letter of 10/3/97 signed by a Deputy General Manager of the respondents Dr. OJ. Anurukem, and one by Mr. Omeata, the appellants were, to their surprise, informed that they had been dismissed from the service of the respondents under Decree 17 of 1984.

In respect of this suit the appellants pleaded in their statement of claim and gave evidence of wrong deprivation of their liberty, humiliation, mental and physical torture and stress. They complained of denial of their salaries, entitlements, pension and other emoluments and that the purported dismissal was irregular, unlawful and null and void as they had never been queried for any offence by the 1st respondent. They were not yet due for retirement.

As the model of the reliefs sought by each appellant, let me set out the claim in paragraph 15 of the amended statement of claim of Charles Ejimofor, sometimes referred to in the records as the 1st appellant and at others, as 2nd appellant for reason I am unable to find.

Paragraph 15 –

“Wherefore the plaintiff claims against the defendants jointly and severally as follows: –

(i) A declaration that the purported letter of dismissal issued to plaintiff by the defendants dated 10th March, 1997 is invalid, illegal, highly irregular therefore null and void and of no effect whatsoever.

(ii) A declaration that plaintiff, a Senior Technician in 1st defendant’s establishment. And entitled to his salaries and allowances;

(iii) N365, 191.00 being unpaid salaries and allowances from November 1996 to May 1999.

(iv) N576, 313.00 unpaid salaries and allowances from June 1999 to December 2000.

(v) N656, 734.00 being gratuity payable to plaintiff.

(vi) 109, 455.00 reparation allowance.

(vii) Special damages of N3, 000,000.00

(viii) General Damages of N2, 000,000.00

In the alternative to (v) and (vi), order of reinstatement of plaintiff from January 2001.”

It is to be noted that the respondents filed a statement of defence and an amendment later, also adopting the averments in the original statement of defence. In paragraphs 4, 6, 7,8,9,14,15 and 16 thereof, the respondents had averred that: –

“4. The defendants deny paragraph 5 of the statement of claim and aver in response that it was at the instance of the plaintiff’s violation of the condition of service of his former employers i.e. NITEL Ltd. by way of intentional violation of operational procedure and infamous, dishonest and notoriously disgraceful conduct fraud and dishonesty that he was reported to the police.

But the defendants have no authority to order for the plaintiff’s arrest.

6. The defendants deny paragraphs 7 and 8 of the statement of claim and further aver that the defendants did not prosecute the plaintiff but he was found by the defendants to have acted in violation of the condition of service which the plaintiff and the defendants promised to uphold.
7. That the act of the plaintiff which gave rise to his final dismissal as in relation to fraudulent deal in some NITEL forms which the plaintiff handles as part of his duty.

That deal also lead to the conduct of investigation by the Police. The copies of the said forms and other related documents fraudulently signed and issued to some fake customers and the copy of the police report are herein pleaded.

8. The defendant deny paragraphs 9, 10, 11, 12 and 14 of the statement of claim and in response aver that at no point in time did the defendants humiliate or deprive the plaintiff of his liberty whatsoever.
9. That Dr. I. Anurukem (D.G.M.) P.T.M.D. was one of the management staff of the 1st defendant and therefore acted for and on behalf of that management. And by virtue of his position he has full authority to act the way he did.
10. The defendant avers that the action initiated by the plaintiff was out of time as prescribed by law to file action against the defendant.
11. That issuance of the dismissal letter to the plaintiff by the defendants is pursuance to powers vested in them by the Decree No. 17 of 1984.
12. Where of the defendants have acted rightly in accordance with the condition of service as well as the law of the land and therefore, the action is liable for dismissal as same is frivolous and abuse of the court process.”

Trial later commenced and the plaintiffs concluded their evidence on 11/7/2001. The court adjourned for defence to 17th and 18th September, 2001. Rather than proceed with their defence, the defendants brought yet another motion filed on 8/10/2001, once more seeking to dismiss the suit as aforesaid. This time the court below in its ruling found merit in the application and struck out the suits of the plaintiffs consolidated by it, on the grounds that they were statute-barred. It is against this ruling the plaintiffs have appealed to this court.

I now return to the issues for determination. I prefer the appellants’ issues and will adopt them for this judgment.

Issue No.1 raises the question whether the application of the respondents seeking to strike out the appellants’ suit, was not itself an abuse of the process of the court, having regard to the pronouncement of the court declaring the purported letter of termination void.

In his submission, learned counsel for the appellants Tayo Jegede, Esq recounted the three different motions to strike out or dismiss this suit by the Respondents which were filed on 30/8/99, 23/1/2001 and 8/10/2001. That the learned trial Judge heard full argument on all of them and gave a considered ruling on each, (as shown earlier in this judgment).

In particular, he dwelt at length on the second motion filed on 23/1/2001 in which the court below declared the letters of dismissal of the appellants null and void because the officers Anurukem and Omeata who issued and signed them had no authority so to do.

Learned counsel then referred to the third application of 8/10/2001, predicated on the same letter of dismissal already pronounced void by the same learned trial Judge, and submitted that even if the pronouncement was wrong or not properly made, the only way to challenge it was by way of appeal. He submitted that the third motion filed on 8/10/2001 is an abuse of the process of the Court. For, the respondents who therein contended that the appellants’ action was statute-barred relied on the same letters of dismissal declared void by the trial court. He argued, that those letters were not existing in the eyes of the law. For, as the learned trial Judge himself put it in his ruling, “you cannot put something on nothing.” Counsel urged that there was no termination upon which time would run. That the counter-affidavit of the appellants to this last motion with its annexures effectively takes the matter out of the statute of limitation. He submitted that if a transaction is void ab initio, it is void from the beginning relying on the case of Kpema v. The State (1986) 1NWLR (Pt. 17) 396 at 397 and 404 – 405 SC where the Supreme Court considered the import of a void judgment, per Uwais JSC (as he then was), Irikefe CJN (as he then was and Obaseki, JSC also as he then was).

He concluded that there was no valid letter of dismissal and none exists in the eye of the law, and that the effect of the ruling upholding that the claim is statute-barred, is to validate that letter which the court below had previously declared null and void in its ruling of 14/3/2001.

The respondents’ learned counsel, Mr. Abubakar on his part, and, it is their issue No.2 that is relevant, submitted thus:- That the trial court acted correctly. He argued that each of the 3 motions of the respondents were devoid of any link with the other.

That they were neither abusive nor harassing, because each had a legal basis upon which it rested. He cited Ikine v. Edjerode (2001) 92 LRCN 3288 at 3298 and 3291 and said it was, “for clarity on the abuse of court process” by the Supreme Court.

Counsel said “Section 9(sic) of the Federal High Court (Civil Procedure) Rules 2000 takes care of filing of motions at any stage of proceedings. It is even not an abuse of process to file another application after the initial one is refused when procedural step is to be taken.”

Proceeding further in his submission, learned counsel for the respondents posited, “the application challenging the jurisdiction of the court was even paramount because the action of the court lacking in jurisdiction was null and void” (sic).

He referred to Amoo v. Alabi (2003)112 LRCN 2163 at 2165 Ratio 1 and 2166 Ratio 2; (2003) 12 NWLR (Pt. 835) 532. It was learned counsel’s view that counsel for the appellants should not have relied on the case of Kpema v. The State (supra) because it is a criminal case when the present matter is civil and both are distinguishable.

Mr. Abubakar also commented on the other cases cited by the appellants’ counsel and urged this court to disregard them, for reasons which were not made clear in his brief of argument. So also, learned counsel, commenting on the dicta of Uwais, CJN, Lord Denning, Irikefe, CJN and Obaseki, JSC in the said cases, said they were “not of assistance in this case, being that the appellants’ argument on the finding of the trial court that the letter is void ab initio, is non-existent and therefore there is no time that would start to run (sic)”.

Learned counsel submitted further, that the appellants’ argument would have been more useful to them if the action at the trial court was instituted within 3 months from receiving the dismissal letter.

That, “the appellants’ (sic) case at the trial court is that the respondents (sic) neglected their right as employees and defaulted in their duty or authority by serving them with dismissal letter at a time when they were not supposed to get same” (sic). “That action of the respondents is what provision (sic) of Section 2(a) of the Public Officers Protection Act is all about, (sic). Therefore they cannot now lay complaint against the dismissal (sic)”.

Learned counsel finally submitted that the appellant’s argument that the criminal allegation against them was purportedly (sic) made at the instance of the respondent was gross speculation, which the court could not act on.

There are the following matters to address in relation to the appellants’ issue No.1 on the one hand and issues 2 and 3 on the other: –

“Important, is the issue arising from the reliance on the letter of dismissal of the appellants by the respondents in their application in the court below which was accepted and applied by the said court. The court had in a previous ruling, declared the letter null and void. It was argued for the appellants that this amounts to an abuse of the process of the court.

The other matter is the manner in which the respondents kept on seeking, by one application after another, to dismiss or strike out the suit of the appellants even after their previous motions were refused. The appellants describe this as bringing multiple applications by instalments filed by instalment meant to harass and upset the appellants. This also the appellant complained was an abuse of process of the court.

The above matters go with Issue No.1.

There is finally the issue of when the cause of action in the suit would be deemed to have arisen relating to issues 2 and 3. Was it from the date of the dismissal of the appellants when they received letters of suspension without pay and later, of dismissal from the service of the respondents?

Or, was it after they were discharged by the Miscellaneous Offences Tribunal.”

This last issue is interwoven with the use to which the lower court put the letter of dismissal which it had earlier, in another application in the same proceedings declared null and void, arising under this, issue No.1 of the appellant and issue 2 of the respondents.

This last matter will effectively be addressed under issues No. 2 and 3 of the appellant and No.1 of the respondents.

Regarding the complaint of the appellants about the raising of objections instalmentally, I should think that counsel appearing in a case should be advised to study the case carefully and seize an appropriate moment to raise objections which may be relevant.

“fishing expedition” or trial and error in the defence of so serious a suit, the facts of which show that the opposite parties, citizens of this country, had been put through serious trauma for years, through arrest, detention, trial, suspension from duty without pay, and the sword of loss of employment being waved at and hanging over them, is to my mind not acceptable.

That, however, is not to say that by itself, it is sufficient for the court below to refuse to hear the respondents’ third application to strike out the suit or for this court to set aside the ruling of that court. The more serious complaint is that relating to the use of the letter of dismissal of the appellants which the court below had in the previous application of the respondents to dismiss the suit, declared null and void, and yet, the same court proceeded to apply the contents of the same document to grant the respondent’s application and to strike out the suit.

I will therefore now address that issue described as abuse of process relating to reliance by the respondents on the letter of dismissal declared null and void. To my mind it is a crucial issue of law.

Here is what the learned trial Judge identified, and decided in his ruling of 14/3/2001 on the second application filed on 22/2/2001 by the respondents:-

That the bone of contention between the parties as counsel for the defendants/applicants, Mr. Abubakar submitted, was “the letter of dismissal issued to each of the plaintiffs.” and that these letters issued pursuant to Decree 17 of 1984 form the basis of the cause of action. (See page 146 of the records).

That counsel for the respondents, Mr. Jegede submitted that the defendants/applicants were relying on a letter purportedly signed by D.I. Anurukem, the 4th defendant/applicant and one Engr. E.C. Omeata and that they were purportedly exercising powers which they did not have. That the letters purportedly issued under Decree 17 were merely a pretence and a curious imitation of what it purports to be and therefore ineffective and invalid. (See page 147 – 148 of the records).

At page 149 of the records, the court identified the issue for determination thus:-

“The issue for determination in this application in my respectful opinion is whether the letter of dismissal which gave rise to the challenge of the court’s jurisdiction was validly issued.” (italics supplied).

The foregoing shows that the validity of the letter of dismissal was clearly identified as being in issue.

After setting out the relevant provisions of Decree 17 which he considered, as well as the Public Officers’ Protection Act, the learned trial Judge asked the question, who are those protected by Decree 17? He later came to the following decision: –

“Without much ado, I am of the very firm view that NITEL is an establishment or statutory corporation in which the Federal Government has controlling interest.

It is therefore clear that the plaintiffs fall within the definition of public officer both under Decree No. 17 of 1984 and under the 1979 Constitution, the Constitution which was prevailing at the time this action was instituted.

I agree with the counsel to the defendants/applicant that the law that is applicable to a matter is the law that was in force when the incident in question occurred. For this reason, the legislations that was applicable in this case was the provisions of Decree No. 17 of 1984.

See Lipede v. Shonekan (1995) 1 SCNJ page 184 at 189; (1995) 1 NWLR (Pt. 374) 668. Ratio 121 Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1996)12 SCNJ page 286 at 287 ratio 1; (1996) 10 NWLR (Pt. 746) 1.

“However the matter does not rest there for the jurisdiction of the court to be properly ousted there is a condition precedent. The law is common place that where an enabling statute or rule of procedure lays down a precondition or a collateral condition as a first step to the issuance of a main process, failure on the part of the applicant to satisfy that pre-condition or collateral will be prejudicial to the position of the applicant.”

He stated also:

“The 1st condition which the defendant/applicants must satisfy is that for a letter to be effective under Decree No. 17 of 1984 the appropriate authority must be satisfied before certain things are done. Section 1(1) reads – Section 1(1) notwithstanding anything to the contrary in any law the appropriate authority if satisfied that:

(a) It is necessary to do so in order to facilitate improvement in the organisation of the departments or service to which a public officer belongs, or

(b) By reason of age or ill health or due to any other cause a public officer has been inefficient in the performance of his duties; or

(c) The public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person; or

(d) The general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest, the appropriate authority may at any time after 31st December 1983: –

(i) dismiss or remove the public officer summarily from his office, or

(ii) retire or require the public officer to compulsorily retire from the relevant public service.

“The next issue to resolve is what constitute” appropriate Authority (italics is mine). Section 4(2) of Decree No. 17 of 1984 states thus:

“In the operation of this Act, the appropriate authority: –

(a) in respect of any office which was held for the purposes of any state, shall be the Military Governor of the State or any person authorized by him, and

(b) in any other case, shall be the President or any person authorized by him or the Armed Forces Ruling Council.

In respect of the defendants/applicants case, the appropriate Authority as defined in Section 4(2) is the President or any person authorized by him or the Armed Forces Ruling Council.

A careful perusal of each of the letters of dismissal issued to the plaintiff does not in the face of it show that the defendants or any person was authorized to issue the letter, to the plaintiffs. I agree with the plaintiffs/respondents counsel that there was no affidavit evidence to show that the President or the Armed Forces Ruling Council authorized the issuance of those letters.

“Where an enactment or statute takes away the right of a citizen or tries to limit the jurisdiction of a court, the courts are enjoined to give very strict and narrow interpretation against anyone claiming its benefits. See Wilson v. A.-G., Bendel State (1985) 1NWLR (Pt. 4) page 572 ratios 13& 14, Barclays Bank Ltd. v. CBN (1976) 10 NSCC page 291 ratio 2, FCDA v. Joshua Sule (1994) 15LRCN Pg 221 at 224; (1994) 3 NWLR (Pt. 332) 225 ratio 5 and 8.

Attorney-General of Lagos State v. Dosunmu (1989) 2 N.S.C.C. 545, (1984) 3 NWLR (Pt. Ill) 552; Anya v. Iyayi (1993) 9 SCNJ 53 at 237; (1993) 7 NWLR (Pt. 305) 2290 and Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1 at 25 where Irikefe, JSC as he then was restated the law in these words:

‘It is an accepted canon of interpretation of statutes that any law which seeks to deprive one of his vested proprietary rights must be construed strictly against the lawmakers. And this was amply emphasized by the Court of Appeal, Lagos in the unreported case of NEPA v. J.O. Ososanya & G.O. Mordo & Ors in suit Nos. CA/L/226/96 and CA/L/197/97 delivered on the 28th day of September, 2000.’

The Court below also went on: –

“What then is the position of Engr E.C. Omeata and D. T. Anurukem who signed the letters on behalf of the General Manager.? It is my candid opinion that both Engr E. C. Omeata and D.I Anurukem had no authority to sign exhibit 01 – 06 by which the plaintiffs were dismissed. There was no letter or document by which the President or the Armed Forces Ruling Council directed both officers to issue the purported letters of dismissal to the plaintiffs. Even at the pain of repetition, I reproduce one of the letters hereunder

Charles Ejimofor, ID. 140926, Subject: Dismissal

I am directed to inform you that in the public interest, your services with NITEL Ltd. are no longer required.

You are, therefore, dismissed with effect from 10th March, 1997, under the provisions of Decree No. 17 of 1984. You should hand over all the company properties in your possession to your Head of Department.

Sgn. D.I. Anurukem. Deputy General Manager (P). For General Manager (PTMD).”

After considering the foregoing, the learned trial Judge concluded thus: –

“It is clear that the officer who signed this letter – D.I. Anurukem had no authority to issue the said letter. The mere mention of the phrase dismissed with effect from 10th March, 1997 under the provisions of Decree No. 7 of 1984 does not by itself confer authority on D.I. Anurukem. There is no other document linking the acts of D.I. Anurukem with the action of the President. It was a letter written without authority. The letter was void ab initio. The said officer cannot put something on nothing and expect it to stand. ”

(The italics in the above excerpt from the ruling of the court below is mine for special attention, emphasis and effect).

The court below in the above decision has clearly declared the letters of dismissal “null and void”.

What then, it must be enquired, had changed after the foregoing, when the same defendants/applicants again applied in the same suit by another motion filed on 8/1012001, relying on the same letter of dismissal to get the suit struck out?

I do not see any thing that changed!!!

It is my view that the court below should have applied his decision above in its ruling now appealed against.

The basis for the prayer is the contents of the same letter of dismissal signed by the same persons, found by the same court in the same suit not to be authorized and declared to be null and void. There has been no appeal against that finding, declaration and ruling. A party who is aggrieved by a decision of a court ought to appeal against it, if he wishes to pursue his grievance, and not return to the same court to secure, as it were, a reversion of the decision or for that court to sit as it were on appeal against its own decision, as herein.

It was rather preposterous for the respondents to rely on a document which the court below in a considered ruling in the same suit had declared null and void to bring the 3rd application. I should think that rather than reapply to the same court to strike out the suit, relying on the contents of the said document declared void, including the date, what was open to the respondents was to appeal against the ruling of the trial court in their previous motion declaring the document null and void. See U.S.A. v. Okonkwo (2004) 5 NWLR (Pt. 867) 445 at 458.

It was not open to them to rely on that same document to repeat their application to strike out or dismiss the suit, and for the court below to acceed to them. The court was in grave error to fall into what could be called the trap set by the respondents, by applying the contents of the said void document to strike out the suit.

There is absolutely nothing new before the trial court after the second ruling to show, that Anurukem or Omeata had the power or authority to sign the letter of dismissal or that Decree 17 applied.

The argument by the respondents’ counsel that the motions filed by them and upon which the court below delivered his rulings were devoid of any link with each other, is to my mind begging the issue, unconvincing and totally unacceptable. In all three motions, the respondents’ claim of right to strike out or dismiss the suit derived from this same document, namely the letter of dismissal declared void. In the three motions, one single thread runs through them. On that, the respondents’ prayers to strike out/dismiss the claim hang.

That is, the letter of dismissal and Decree 17. With respect, it is therefore entirely ridiculous to argue as did learned counsel for the respondents, as set out above.

A document declared null and void has no effect and conveys nothing whatsoever. It conveys no rights, no powers or obligation.

It is a useless document. It cannot form the basis for any claim, action or deed. The document is plain paper with nothing thereon. It has no legal consequence. Under the law, it is as good as non-existent. When any act, is declared null and void by a court of law, it simply means that the act never existed, it binds no one whatsoever and any actions taken thereunder are also unlawful, null and void and of no effect. Indeed, that means that the act was never carried out. See Adejitlu v. Okulaja (1996) 9 NWLR (Pt. 475) 668 at 691.

This is what Ogundare, JSC said at page 693 of the report regarding an appointment, which a court had declared null and void: –

“When an appointment is declared null and void, all it means is that the appointment was never made and all acts of the purported appointee when he defacto held the appointment are unlawful, null and void and of no effect.

‘The result of a decree of nullity of marriages is that not only are the parties not now married, but they never were’ per Russell J. in Re Wombwell’s Settlement (1922) 2 CD 298 at 305.”

“As it was put in an American case of Zogby v. State 53 Misc 2d 740, 279 NYS 2d 665, 668 “Null and void” means that which binds no one or is incapable of giving rise to any lights or obligations under any circumstances, or that which is of no effect.

“By the judgment of the Court of Appeal, and affirmed by the Supreme Court in 1989, declaring the 1981 appointment of the 1st appellant null and void that appointment had no force or effect, it had no legal efficacy … It is not merely voidable but void ab initio, that is from the beginning. A nullified appointment cannot in my respectful view, be a legal foundation upon which any legal right could be hoisted.”

In Okafor v. A-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 678 Karibi-Whyte, JSC also stated-

“A nullity is in law a void act which has no legal consequence. The act is not only bad as was stated by

Denning L.J. in U.AC. Ltd. v. Macfoy (1961) 3 All ER 1169, it is incurably bad.”

Our attention was drawn by the appellant’s counsel to Blacks Law Dictionary, 6th Edition p. 1573 which defines the word “null” thus: –

“Null, ineffectual, nugatory having no legal force or binding effect, unable in law to support the purpose for which it is intended. An instrument or transaction which is wholly ineffective in-operative and incapable of rectification which thus has no force or effect so that nothing can cure it.”(italics supplied by me for emphasis).

I will also refer to the case of Kpema v. The State (1986) 1 NWLR (Pt. 17) 396 cited for the appellants. Therein, the Supreme Court considered the connotation of a void judgment and held that it is automatically null and does not exist. Uwais, JSC (as he then was, later the CJN) in his judgment referred to the age long and often cited case of Macfoy v. U.AC. (supra). In that case, that sage, Lord Denning, stated the sense of an act which is void in the eyes of the law thus: –

“If an act is void in law, it is a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much to do. Though it is sometimes convenient to have the court declare it to be so.”

I would in addition to gratefully adopting the foregoing, state, regarding the letters of dismissal in this case, that the learned trial Judge did to all parties the good service of declaring them “null and void” in accordance with the law, and full effect must be given to the declaration. It is even more imperative that the said trial Judge himself who made the declaration must hold himself bound by it until and unless there be an appeal setting it aside.

Learned counsel for the respondent’s submission belittling the effect of the wise words of the above respected jurists is with respect, ill motivated.

Only inconsistency leading to injustice follows the action of a court which in one breath declares a document null and void and in another applies its contents to determine the rights of the same parties affected by the said contents and his declarations. No matter which way one turns to examine the circumstances of this matter, the glaring injustice emanating from the court’s decision in this case, laps one on the face.

There certainly is no letter of dismissal from which the court below could identify the date, when the cause of action might have arisen. Indeed, the obvious effect is that there was no dismissal when the bottom had been knocked off its basis. I have no doubt that the learned trial Judge appreciates the foregoing, when he declared the letter null and void as set out above.

I agree entirely with learned counsel for the appellants that if the declaration of the court below in his previous ruling on the motion of 23/1/2001, were to be challenged, the only way open to challenge it is by an appeal. It is not only an abuse of the process of the court to seek to “resurrect” the same document declared null and void in the same suit and apply its contents, it is against the law.

The same court which had declared a document null and void cannot, in justice, turn round to apply the contents of the same document to determine an issue or matter based on it. A party to a suit cannot rely on a void document to pray a court of law which had declared the document null and void to determine the same matter dependent thereon, applying its contents. At the risk of repetition, I must state once more that when a document is declared null and void, its contents are of no effect whatsoever. They cannot be applied/or used for any purpose.

It is in the light of the above that issue No.1 is determined in favour of the appellants.

Issues Nos. 2 and 3 of the Appellant.

The questions therein are whether having regard to the pleadings and the facts disclosed at the hearing of the case, the suit can be said to be statute-barred and whether failure to consider the authorities cited for the appellants did not occasion a miscarriage of justice.

Before addressing this issue, I am bound to state that the answer to issue No.1 of the appellants (supra) ought to dispose of this appeal.

For, as there is no letter of dismissal the bottom has been knocked off the decision to strike out the suit, based on that document on the grounds that it is statute barred. No letter exists from which the date on which the cause of action accrues for purposes of calculating the three months enacted by Section 2 of the Public Officers’ Protection Act for filing a claim, must be calculated. In effect, the court below had no basis to strike out the suit.

In any event, issues 2 and 3 will be addressed only for completeness.

For the appellants, Mr. Jegede their learned counsel has submitted as follows: –

That the appellants’ claim was briefly that they were arrested, detained and arraigned before the Miscellaneous Offences Tribunal and in the process, they were allegedly dismissed by the respondents under Decree 17 of 1984 when they had no power or authority to dismiss. In their unrebutted evidence, the appellants testified that they were discharged of the allegations on 7th May, 1999, and they commenced this suit on 2nd June, 1999, less than one month after their discharge. That it was against this the court below in its ruling held that the actions of the plaintiffs had “been caught by Statute of Limitation i.e. the Public Officers Protection Act,” forbidding them from filing their action after the period of 3 months.

Counsel also submitted that the learned trial Judge was clearly in error as he failed to reflect on the facts and section 2 of the Public Officers Protection Act. That where there is a dispute as to whether or not an action is statute-barred, the answer can be found in the pleadings and the evidence already led – Olaogun Ent. Limited v. S.J M (1992) 4 NWLR (Pt. 235) page 361 at page 366 ratio 6 cited.

Also U.B.N. Limited v. Penny Mart Limited (1992) 5 NWLR (Pt. 240) page 228 at 230 ratio 2. That the cause of action is the bundle and aggregate of facts in the relationship between the parties which the court will recognize as enabling the plaintiffs to enforce a claim. Thomas v. Olufosoye (1986) 1NWLR (Pt. 8) page 669 at 682, cited.

Learned counsel contended that it was wrong for the learned trial Judge to hinge his decision on the reliefs the appellants are seeking and equate the relief to the cause of action. That a plaintiff decides what relief he desires. He may ask for less than he is entitled to or indeed limit his relief. But, he submitted, the proper place to decipher the cause of action is by looking at the aggregates of facts from the body of the pleadings.

He pointed out that the body of appellants’ pleadings consisting of the facts they intended to prove relate to the fact of their detention, prosecution, dismissal and discharge and each and everyone of these allegations must be proved to enable the appellant succeed.

Counsel referred to the testimony of the Registrar of Yola Zone Miscellaneous Tribunal who tendered in evidence the certified record of proceedings of charge No. MOT/J2/95/96 exhibit A, and to the 1st appellant himself who also testified in support of the pleadings especially about the arrest, detention, prosecution and eventual discharge. That it was after the discharge that 1st appellant wrote through his counsel to be re-instated and that his evidence at page 194 – 198 of the record of proceedings is relevant page 197 lines 1 to 11 of the records.

Counsel also referred to the evidence of the 2nd appellant Ejimofor in response to cross-examination at page 199 of the records, testifying to why he came to court – that he sued the defendants because he was illegally detained, tortured and his liberty was trampled upon and he was wrongly dismissed from the service of the 1st defendant. He then submitted that the foregoing showed the complaints and continuous nature of the injury of the appellants and the day it ceased – starting from 1996 when they were first arrested, charged through the time of assignment up to the time of suspension, dismissal and eventual discharge on 7th May, 1999. That indeed section 2(a) of the Public Officers Protection Act, Cap 379, 1999 made provisions for cases of “continuance of damage or injury” and that time shall not start to run until ceasing of the damage or injury.

Furthermore, that the learned trial Judge failed to give consideration to the submission of counsel on the continuance of damage and injury as argued at the lower court. That all the cases considered by the learned trial Judge do not relate to continuance of damage, or injury but were authorities for only one wrong or neglect and that the facts of this case are peculiar to itself and the most relevant authority was the case of Adimora v. Ajufo (1988) 1 NSCC Vol. 19 page 1005 at 1008; (1988) 3 NWLR (Pt. 80) 1, where the Supreme Court dealt with the issue of “cause of action,” its meaning when it accrues etc.

Counsel contended for the appellants that the facts alleged in the plaintiffs’ statement of claim up to the period of discharge from the Miscellaneous Tribunal were the aggregate of fact that appellants needed to prove at the lower court, to entitle them to judgment. That the entire cause of action of the appellants did not become complete until they were eventually discharged by the Tribunal, of the allegations against them, and that the fact of discharge was most relevant, given that it is a fact which all the plaintiffs/appellants needed to prove, to entitle them to the remedies sought not only in terms of illegality of the dismissal, but also in terms of compensation of N3 million and N2 million which appellants asked for as special and general damages.

He thought it regrettable that the learned trial Judge though fully aware that appellants at the lower court relied heavily on the case of Adimora v. Ajufo (supra) completely ignored that Supreme Court authority, did not advert his mind to it, proceeding to find for the respondents.

It was further submitted that the learned trial Judge on his own proceeded to cite authorities like Smith v. Selwyn (1914) 3 K.B. 98, a case neither cited by appellants nor even the respondents and held thereafter that, that case did not apply, rather, shying away from determining whether the case was relevant or not as he was bound to do while considering the argument of appellants. That this approach occasioned a miscarriage of justice to appellants.

Learned counsel considered that the learned trial Judge appeared to have taken the position that the appellants need not wait for their discharge or conviction before challenging the acts of the respondents, and submitted that the appellants could not have effectively prosecuted the totality of their claims given the circumstances, while they had not been exonerated from the allegation against them.

Counsel questioned that even if it was assumed without conceding, that the appellants should have filed an action in 1997 and they were eventually convicted of what use and importance would be the action filed while the proceedings were still on if they were eventually convicted. It was then submitted that, if the appellants had taken out a writ against respondents without verdict of discharge, they would have been resisted by respondents who would have contended that the action was premature, unduly hasty in that appellants were still undergoing trial for which they might be convicted. Learned counsel’s final point was that what called for consideration was the provisions of section 2 of the Public Officers Protection Act, and whether the appellants could initiate and prosecute the case at the time they did. He then submitted that it was not the submission of the appellants that they were convicted prisoners neither did they liken themselves to that. Rather, the appellants’ case simply was that the aggregate of facts and complaint of the appellants was not a single event but a chain of action all at the instance of the respondents and that the wrong injury and damage were continuous against the appellants whose action could only be effectively and completely prosecuted after the injury must have ceased upon their discharge by the tribunal on 7/5/99.

For the respondents, their learned counsel, Mr. Abubakar addressed these issues under his issue No.2, submitting as follows:

That the issue is whether by the issuance of the dismissal letters by the respondents, a cause of action had not accrued to the appellant. That his submission is that the aim of pleadings is for parties to know with certainty the issue in controversy between them, at the end of which a party must specially state his relief so as not to spring a surprise on his opponent.

Learned counsel noted that the appellants set out facts in their writ and statement of claim dated the 2/6/1999 which formed the bed rock for the relief as set out at pages 2 – 5 of the record of proceedings. That the court cannot change the relief of the appellants because doing so would amount to descending into the arena by the court and thereby evolving (sic) a case for the appellants, a practice the Supreme Court ruled against in the case of Udengwu v. Uzuegbu (2003) 110 LRCN page 1701 at 1704 R7; (2003) 13 NWLR (Pt. 836) 136. That the appellants amended their various statements of claim in which they maintained the reliefs they earlier sought. That, no matter how beautiful the pleadings and the testimonies are, the law is that the court does not give a party what it did not ask for. That, on 6/11/2001, the court below pronounced its well-considered ruling in favour of the respondent. He urged this court to uphold the position of law in the case of Badmus v. Abegunde (2001) 3 WLR page 40 at 43 ratio 6.

Counsel stated, that it was admitted that the appellants at the trial court dwelt on some extraneous facts of arrest, detention and prosecution, but which were issues that did not have nexus with the real matter at hand. That the averments touching on such issues are:

“without basis which the court would look into and make award for these issues were claims without relief which is the same as when there are prayers but without deposition” (sic). That in such a situation, the court must disregard each of them, as the court has no legal right to make award (sic). That this is the position of the appellants – the case of Adelaja v. Alade (1994) 6 SCNJ page 160 at 161 ratio 3; (1994) 7 NWLR (Pt. 358) 537, is cited. Counsel said he conceded that the appellants’ averments in their pleadings mentioned the story of arrest, detention and prosecution but could not show anywhere in the record that they challenged the perpetrators, also that it is presumed that the appellants at the time of their arrest and detention were all informed in writing within twenty-four hours in the language they understand, of facts and ground of their arrest and detention. That they were again given opportunity to consult their legal practitioners as provided for in section 32 of 1979 Constitution now section 35 (1) (2) of the 1999 Constitution. That the appellants, at one time were released back to their normal duty post on various occasions since 23-2-1996 till 27/11/1996 when they were granted bail by the Federal High Court, Jos is shown at page 196 and 197 of the records.

Counsel then argued that having had all the chances, the appellants “did not deem it cogent and compelling to avail themselves of the golden opportunity to file action challenging their unlawful arrest and detention against anyone they found responsible since February, 1996 till January, 1997 which is a reasonable period of time. That by their inaction, the appellants had all slept over their rights and cannot later be allowed to raise any claim more so when they made effort to connect it with the issue of dismissal.” (sic).

That equity aids the vigilant. That the appellants were indolent as far as their claim was concerned.

Counsel noted that the appellants repeated the same thing when they were served with the dismissal letter. He argued that even when they were in detention, they could still file a separate civil action within the prescribed period of 3 months challenging the dismissal, but they neglected and abandoned their chance and awaited the accumulation of other facts for their kind of action to accrue so that it could be regarded as an aggregate of facts forming a cause of action. That the position taken by the appellants was erroneous. That the purported arrest and detention would not avail the appellants having failed to show that they suffered any disability in law as would make time not to run against them. That the appellants could engage a lawyer as they did during their arraignment before the tribunal at Jos to take out a writ against the respondents on the issue of dismissal before the time ran out. That they were released on bail on various occasions, the final one being on the 27th November, 1996 by the Federal High Court Jos. The case of Eboige v. NNPC (1994) 6 SCNJ page 71 at page 74 ratio; (1994) 5 NWLR (Pt. 347) 649, cited.

Learned counsel further argued that the appellants misconstrued the provision of section 2 Sub (A) of the Public Officers Protection Act, Cap 379, Laws of the Federation, 1990 especially its proviso and assumed that the word “convict-prisoner” means a mere “accused person.” For, he stated in this suit, the appellants were not convicted and imprisoned as a result. That first, they were not convicted and were not even prosecuted or proceeded against at the instance of the respondent and no documents evidencing that the respondents lodged complaint against the appellants any where that led to their arrest and prosecution. That the testimonies of the appellants at the trial court was to the effect that they were only identified by the respondents’ official and this could not connect the respondents to the appellants’ arrest and detention because, those that arrested and detained the appellants came to the respondent’ premises to ask for the appellants and not the other way round.

It was further argued for the respondents that the issue of dismissal against which the appellants sought relief came before their final discharge after they were released on bail and it was a separate and distinct cause of action which must be pursued immediately. And it was further argued, if they had any reservations to whether to take out a writ against it or not, the law says that the best course for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right.

That the appellants should have instituted an action before they were discharged and especially after they were bailed out though they were not convict prisoners. Counsel placed reliance on the case of Eboigbe v. NNPC supra at page 73 ratio 7.

For the respondents, counsel also submitted (supra) in respect of the case of Adimora v. Ajufo that the case is distinguishable from the present case at hand which deals with public officers as against Adimora’s case, and, again in Adimora’s case the issue involved was land as peculiar as it might appear could be equated with contract of employment such as in the appellants’ claim. That the Supreme Court clearly set the place (sic) in the case of – Sanda v. Kukawa (1991) 3 SCNJ page 35 at page 3 6 ratio 5 or (1991) 2 LRCN page 632 at 634 ratio 4; (1991) 2 NWLR (Pt. 174) 379. Thus, that time starts running a day next after the dismissal letter was written and served just as in this case. That the above case has answered the questions posed by the appellants contained at page 227 of the records viz. “at what point does time start to run when the plaintiff is dismissed from his employment…”

On the appellants’ issue No.3, it was submitted for the respondents that the trial court in its effort to provide a sound judgment/ruling is not tied up intellectually only to the input of the litigants or their counsel. That the Supreme Court has given it considerable latitude to test other authorities. And this is the position in Orugbo v. Una (2002) 103 LRCN page 2354 at 2361 ratio 11; (2002) 16NWLR (Pt. 792) 175 and that is what the trial court did in this case when it placed reliance on the case of Smith v. Selwyn (1914) 3 KB 98.

It was further contended for the respondents that paragraphs 5.20 and 5.21 of the appellant’s brief were full of rebuttable presumptions and speculations. That nobody knew if the appellants , were to be discharged from their criminal trial before the tribunal, but that anyone seized of the facts of this case knows that the appellants had two chances: –

i. When they were arrested, detained and subsequently released, they could have challenged it because it was a clear cause of action accrued to them.

11. When the dismissal letter was served on the appellants, they could have challenged it because it is also a cause of action that legally accrued to the appellants, but in both circumstances the appellants were in slumber and could not wake up until well over two years.

Finally on this issue, counsel raised what he called an impol1ant question for the appellants:-

When they were first arrested, detained and released back to their duty post with respondents and when did their criminal trial begin at the tribunal? The answer being at page 194 to 196 of the records, the appellants were indolent and inactive.

He said it appeared to him that the appellants were all along during their arrest and detention waiting for the dismissal and after the dismissal they were waiting for their discharge from the criminal charge against them. He concluded that these were events that had no nexus as far as the appellant’s specific reliefs contained in their various sets of pleadings were concerned.

The argument on this issue in the appeal in summary, turns on the contention by the defendants in the court below, as noted by the trial court in its ruling of 6/11/2001, that the cause of action in the suit filed on 2/6/1999 accrued on 27/2/1997 and 10/3/1997 when the letters of dismissal, exhibits A1 – A7 were issued to them by the respondents, which is a Federal Government solely owned company and the 2nd – 5th defendants who were public officers. That the action was filed over 3 months after the cause of action accrued, and that the respondents were protected from the suit by virtue of section 2 of the Public Officers Protection Act, a statute which requires that actions against public officers must be brought not later than 3 months after the cause of action arose. That the action thus filed was statute-barred and should be dismissed.

On the other hand, as also noted by the trial court, it was contended for the plaintiffs that upon a proper construction of section 2 of the Act and having regard to the averments in the statement of claim and the evidence of the plaintiffs that their claim was property before the court because theirs was a continuous injury which only came to an end on 7th May, 1999 and their actions were commenced within 3 months, on 2/6/1999.

The court below identified the issue that he had to resolve which was whether the actions of the plaintiffs were filed timeously.

Thereafter, the court proceeded to consider the issue. Here is what the court below decided in its ruling:-

“That section 2 of the Public Officers Protection Law is meant to protect a public officer from any action in any court after the expiration of three months.”

He considered the effect of the provision and some legal authorities.

After re-identifying what each party urged on his court the learned trial Judge briefly stated the facts of the case. Then he went on:-

“The plaintiffs claim was that as a result of the continuous act of the defendants leading to their detention which did not come to an end until 7th May, 1997 …

“I am of the opinion that this submission is alien to the principles enumerated in the rule in Smith v. Selwyn (1914) 3 KB 98 which was elaborately discussed in the case of Att. Gen. of the Federation & Ors v. Idowu Dawodu & 7 Ors (1995) 2 NWLR (Pt.380)712

The learned trial Judge considered the above decisions at some length.

The court again discussed the plaintiffs’ reason for no suing before 7th May, 1997 which was that they were awaiting the outcome of the trial at the tribunal, important and material to their right to sue and they continued thus:-

“I think this would have been the argument of the defendants if the plaintiffs had gone to court during the pending of any action at the Federal High Court when a charge was still hanging against them at the Miscellaneous Offences Tribunal. This reasoning must have also prevented the plaintiffs from suing within three months of the issuance of exhibits A1 – A7”

He pointed out that the rule in Smith v. Selwyn no longer applies to Nigeria and held. –

“The plaintiffs I think do not have reason to abstain from filing their action as the rule in Smith v. Selwyn cannot prevent the plaintiffs from exercising their right of redress in any court of law … But the matter does not end there. By the provisions of section 2(a) an action is statute-barred if the action is not commenced within three months, but there is a proviso which I had reproduced above.”

The learned trial Judge added: –

“At the risk of repetition, I would like to reproduce the proviso:

‘Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. ‘

He went on:- The proviso covers a person who is a convict prisoner. Were the plaintiffs convict prisoners at any time? Could their period of incarceration be regarded as being in prison? Under the general rule of interpretation, words in a statute are given their ordinary meaning.

Ibrahim v. JSC, Kaduna State (supra) Iguh, JSC had this to say:

“Where a statutory provision is clear, it cannot be constructed and stretched beyond its con. If its language and legislative content are apparent, a court of law is not clothed with jurisdiction to distort its plain meaning in order to make it conform with its own views of sound social justice.”

The learned Justice of the Supreme Court went further and said: –

“The duty of the court is to interpret the words that the legislature has read, and even where those words infact present some ambiguity, the powers and duty of the court to travel outside them on a voyage of discovery are strictly limited.”

The learned trial Judge concluded as follows: –

“I do not think I have jurisdiction to stretch the words ‘convict prisoner’ to include persons who are in custody who have not been convicted of any offence and consequently not serving prison term. My duty is to strictly interpret the law and not to fill in gaps in any legislation or amend any law. The proviso in section 2(a) of the Public Officers (Protection) Act does not also avail the plaintiffs.”

With much respect, it appears to me that the learned trial Judge was in error. He seemed to have abandoned the link, the reasoning and the reasons put forward by the appellants, explaining the filing of their suit after their discharge from the criminal charge at the Miscellaneous Offences Tribunal, rather than after receiving the letter purporting to dismiss them, as put across by their counsel.

The appellants’ learned counsel did not at any time regard or represent them in his submission as “convicted prisoners” under the proviso in section 2(a) of the Public Officers Protection Act as the court below and learned counsel for the Respondents portrayed. Their case was clear which appellants’ counsel put forward – that the aggregate of the facts and complaint giving rise to the totality of their claim for special and general damages in the suit, arose from a chain of events to which the respondents were connected, and that the events terminated upon their discharge from prosecution. That the wrong and injury upon which their action could be completely prosecuted had come to an end on 7/5/99 upon their discharge after which they brought their suits on 2/6/99.

The learned counsel for the respondent, Mr. Abubakar was on firm grounds when he submitted that the aim of pleadings is to enable parties know the issue in controversy between them. His submission that the appellants at the court below, dwelt on extraneous facts of arrest, detention and prosecution which had no nexus with the real matter in hand is however misconceived. His other arguments relating thereto are only escapist and without basis. There is no way of escaping the fact that all the events from the arrest, detention, prosecution, suspension from duty, letter of dismissal from employment and discharge from prosecution are all linked up and constituted the whole of the events giving rise to the claim of the appellants for special and general damages, the particulars of which clearly appear in the plaintiffs’ pleadings and evidence in court. The position is as contained in the submission of the learned counsel for the appellant. The appellants took out their writ less than 3 months after the wrongs they were suffering and complained of, came to an end on 7/5/99.

With all due respect to counsel for the respondents’ voice, my concerns that his submission on this is issue set out at length above is so inconsistent and fail to address the pith of the matters which arose.

On the issue of when a cause of action arises, it is now trite law that the claim of the plaintiff stands out as the first basis to determine that.

If any evidence has been led, the next thing to look at is the evidence before the court. See: Olaogun Enterprises Ltd. v. S.J M. (1992) 4 NWLR (Pt. 235) 361; Union Bank Ltd. v. Penny Mart Ltd. (1992) 5 NWLR (Pt. 240) 228.

The cause of action in a case is usually determined by looking at the circumstances in the given case. It differs from case to case and is deduced from the facts of the case creating or giving rise to a right of action which entitles the person claiming the right to judicial relief.

See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, at p. 20 per Oputa, JSC; Yusuf v. Cooperative Bank (1994) 7 NWLR (Pt. 359) 76 at 629; Lagos University Teaching Hospital Management Board v. Adewole (1998) 5 NWLR (Pt. 550) 406; Alao v. NIDB (1999) 9 NWLR (Pt. 617) 103.

What is a cause of action?

This is how the Supreme Court defined it in Fadare v. A.-G., Oyo State (1982) 4 SC 1 at 6-7, also reported in (1988) NSCC 52 at 60 per Aniagolu, JSC defined this: –

“The term cause of action as has been stated in Read v. Brown (1888) 22 QB.D 128 at 131 per Lord Ester, M.R. denotes every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed to support his right to the judgment of the court.”

In Savage v. Uwechia (1972) 1 All NLR (Pt.1) 251 at 257, also reported in (1972) 3 SC 214 at 221, Fatayi-Williams, JSC (as he then was, later the CJN) said:-

“A cause of action is defined in Strouds Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and consequent damage. As Lord Ester said in Cooke v. Gill LR 8 CP 107 and later Read v. Brown (1888) 22 QBD 128 (CA), it is every fact that would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court. See: Kusada v. Sokoto N.A (1968) 1 All NLR 377 where the definition in Read v.Brown (supra) was referred to with approval.”

The foregoing pronouncements and dicta in the legal authorities referred to above support the appellants’ case and submissions herein.

In this case, the position is that the plaintiffs in their statement of claim averred to facts and claim remedies showing that they considered the totality of the facts from and upon which their claims emanated and were based. This is as required by law. See Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

They led evidence in support. Significantly, the defendants led no evidence in rebuttal. I see no support for the decision of the court below.

Let me refer to the evidence of the 2nd plaintiff – Ejimofor at page 199 of records. He stated under cross-examination that he sued the defendants because he was illegally detained and tortured, his liberty was trampled on and he was wrongly dismissed from the service of the 1st defendant. This is all in proof of the averments in his pleadings. There is no doubt that the suspension and later dismissal of the appellants took their root from the investigation into some alleged offence relating to their work as employees of the 1st respondent, so also their detention and subsequent arraignment before the Miscellaneous Offences Tribunal. (See paragraphs 4 – 9 of the statement of defence (supra). Is it not quite obvious that if the appellants were duly tried and found guilty of those offences charged, that they would not have had a leg to stand on to bring any action such as in this case, claiming special and general damages for unpaid wages and benefits, humiliation, wrong deprivation of liberty, torture, physical and mental stress between February, 1996 and May, 1999 (as averred in the plaintiffs’ statement of claim in paragraphs 5 – 15, particularly see paragraphs 5, 6, 9, 11 and 12).

It is fallacious for the respondent to posit that the appellants were only claiming their unpaid salaries and benefits when in the plaintiffs statement of claim they averred to facts as to unpaid wages and benefits, humiliation, deprivation of liberty etc and claimed special and general damages as follows:-

Para. 5 ” Plaintiff avers that sometimes in 1990 he was arrested in connection with alleged Telecommunications offences and detained at the State Security Services Detention Center in Yola, C.I.D detention center Yola, C.I.D. detention center Bauchi and Federal Prison Bauchi between the period February, 1996 to 27th November, 1996 and for these periods the Police and Task Force on Telecommunications Offences claimed they were investigating the alleged offences with a view to prosecute.

6. Plaintiff avers that he was indeed arraigned before the Miscellaneous Offences Tribunal sitting at Jos, Lafia and finally at Yola where plaintiff was discharged for lack of prosecution on 7th May, 1999. (Plaintiff shall rely on the proceedings relating to some).
7. Plaintiff avers that he has never committed any offence and was not found guilty of any either by the regular courts or any tribunal established by law.
8. Plaintiff avers that about 4th October, 1996 while he was in detention and while investigation into the offences he was alleged to have committed were in progress the 1st defendant through an internal memo placed the plaintiff on an indefinite suspension without pay. The internal memo is pleaded.
9. Plaintiff avers that he was wrongfully deprived of his liberty, humiliated, tortured and subjected to physical and mental stress between February, 1996 to May, 1999.
10. Plaintiff avers that while he was standing trial and in circumstances that has never ceased to baffle him, one D.I. Anurukem who was Deputy General Manager (P) purported to act for General Manager (PTMD) and purportedly dismissed plaintiff vide letter of 10th March, 1997 and further purportedly, under Decree No. 17 of 1984 when he had no power to do so.
11. Plaintiff avers that the purported dismissal was highly irregular, unlawful, illegal and void. Plaintiff avers that he was never queried for any offence by 1st defendant and plaintiff shall only be due for retirement after putting 35 years into service or when he is 60 years.
12. Plaintiff avers that he has been wrongfully denied his salaries, entitlement, pension and other emoluments as he has already put in 19 years of service. Plaintiff further avers that defendant were indebted to him in relation to his salaries and emoluments.

Particulars

(i) Salaries and allowances from November, 1996 to March 1997 – N33, 208.25

(ii) Salaries and allowances from April, 1997 to May 1999 – N331, 982.45 (Plaintiff avers that his allowances include furniture, housing, utility, transport, meal and annual leave allowances)

(iii) Salaries and allowances from June 1999 to October 2000 – N576, 313.00

16. Whereof plaintiff claims against the defendant jointly and severally as follows:

(i) A declaration that the purported letter of dismissal issued to plaintiff by defendants dated 27/2/97 is illegal, irregular, null and void and of no effect whatsoever.

(ii) An order of court that plaintiff as a staff of the 1st defendant is entitled to all his salaries and emoluments and allowances.

(iii) N373, 450.00 representing unpaid salaries and allowances from November 1996 to 1999 and N452,200.00 representing unpaid salaries and allowance from June 1999 to December 2000″.

I uphold the submission of the appellants’ counsel that the cause of action is the bundle of aggregate of facts in the relationship between the parties which the court will recognize as enabling the plaintiff to enforce his claim – See Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 682.The appellants’ claim justifies this, incorporating all the matters giving rise thereto.

I also hold the view that the plaintiffs’ claim arose from the continuous events starting from their arrest, their detention, arraignment and the attendant strains and stresses naturally involved, their denial of any hearing, suspension from work without pay and a letter of dismissal without any entitlements all rolled together.

No matter how the respondents may wish to wash their hands off, the arrest, detention, and arraignment of the appellants, their own words and admissions seen in the record of proceeding give them away. Such are:-

(1) the contents of the letter of dismissal.

(2) The respondents’ various affidavits in support of their motions to dismiss or strike out the suits etc. All of these set out reasons for their dismissal all linking to their detention etc.

(3) Their statement of defence.

Because the respondents were not seriously addressing the issues raised by the appellants’ counsel, the legal authorities which they cited on this issue have not been helpful even in propping up their own case.

On the issue raised by the appellants’ counsel that the court below failed to apply authorities cited by the appellants and applied one not relied on by any of the parties which arose as issue 3, I do not regard the complaint as entirely serious.

I agree however with the appellants that the issue and principles in Smith and Selwyn raised by the court below in its ruling did not arise from the case put forward by them. The raising of that issue was erroneous and helped to compound the injustice to the appellants which the ruling of the court conveyed. The issue came up when the court below ejected into the evaluation of the submission for the appellants the notion that they failed to file their suit after service on them of the letters of dismissal because they had to await the outcome to the criminal case in accordance with the principles as in Smith v. Selwyn. It has been stated clearly above what the case which they were making was. It need not be repeated.

The issue raised by the court below, swallowed and used by the respondents’ counsel in his submission (supra) did not arise and the court ought not to have ejected it into the case.

I must state however that the foregoing is not to say that the court had no power to rely on a case or legal authority not cited by parties, in its judgment as the appellants’ learned counsel seemed to portray in his argument, far from that.

The courts are regarded as the repository of the law. Such a proposition as is being put forward for the appellants is an erosion into the recesses of the court domain, to tie the Judge’s hand and foot. That cannot be allowed.

On this issue, I agree entirely with learned counsel for the respondents, Mr. Abubakar that the court is not tied only to the imput of litigants and their counsel. Surely, a court can refer to authorities to provide a sound judgment. See Orugbo v. UNA (2002) 103 LRCN 2354 at 2382 K-P; (2002) 16 NWLR (Pt. 792) 175, per Niki Tobi, JSC. The learned Justice of the Supreme Court stated in that case:-

“A court of law has no legal duty to confine itself only to authorities cited by the parties. It can in an effort to improve its judgment rely on authorities not cited by the parties.”

I would add that there can be no injustice to the parties in a court referring to legal authorities which strengthen, illuminate or explain and justify its decision. What would counsel who is opposed to the court referring to authorities not cited by parties or their counsel expect a court to do in a situation, and, it is not infrequent, where no legal authority is cited or a wrong one is cited? Would the court be expected to write a “naked” judgment when our jurisprudence is driven by the principle of precedents?

With respect, I will not take seriously that complaint by learned counsel for the appellants.

Having said this, the other answers which have been outlined above on issues 2 and 3 still resolve the issues in the appellants’ favour.

In the final analysis, this appeal is meritorious. It succeeds.

The ruling of the Shakarho, J., sitting at the Federal High Court, Yola, Yola Division delivered on 6th November, 2001, is hereby set aside. It is hereby ordered that the case of the appellants be remitted to the said High Court for retrial by another Judge.

Costs of N5000.00 is awarded to each of the appellants to be paid by the respondents.

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Other Citations: (2006)LCN/2162(CA)