Chief (Barr) I.e. Nwufo V. Federal Judicial Service Commission (2005)

LawGlobal-Hub Lead Judgment Report

V.A.O. OMAGE, J.C.A.

This is an appeal against the judgment of Egbo-Egbo J., then of the Federal High Court, Abuja. The Judgment/ruling of the Court was delivered on 2/4/2003. The judgment/ruling was on the preliminary objection raised by the plaintiff/Appellant to the writ of summons filed and statement of claim filed by the Plaintiff. The writ of summons was filed; 28/5/02 and the statement of claim shows the following reliefs:-

(1)Q Declaration that the purported dismissal of the plaintiff, a principal legal officer, enter the Federal Capital Development; Authority released to the Federal Judicial Commission or secondment; not transfer of service for ruling a memorandum not petition dated 9th December, 1999 to the 6th Defendant as conveyed to the plaintiff vide defendant letter’s of 16th and 30th May, 2000 and reaffirmed by letter of 5th February, 2002, delivered to the plaintiff on 27/02/02 is null and avoid and of no effect whatsoever;

(2) Declaration that the plaintiff not having transferred his service from the Federal Capital Development Authority to the service of the 1st defendant was not subject to the…. powers of the 1st defendant as at 10th May, 2000, when the 1st defendant purportedly lack the decision to dismiss the plaintiff at deputy Chief Registrar of Court of Appeal.

The statement of claim of the Plaintiff filed on 30/5/2002, includes nine other reliefs prayed for, with thirty two annexure. They are contained in pages 9 – 33 of the record of proceedings filed in this appeal. The Plaintiff sued eight defendants, namely:

(1) The Federal Judicial Service Commission

(2) The Hon. Justice M.L. Uwais,

(3) The Hon. Attorney-General and Minister of Justice of Federation

(4) M. Justice M.M. Akanbi

(5) Hon. Justice Nzo Anyanwu

(6) Hon. Justice Umaru Abudulalhi

(7) Accountant General of the Federation

(8) The Inspector-General of Police.

All but the eight defendants entered in appearance to the plaintiff’s claim. The 1st, 2nd and 6th defendant’s were represented by one counsel, while the 4 and 5 defendants were respectively represents by different counsel.

The counsel each filed a notice of preliminary object dated 23/1/03. the grounds of the preliminary objection is that the plaintiff’s suit in incompetent and should be truck out or dismissed. The reason being that the complaints of the plaintiff in the reliefs sought by them in the statement of claim are of the performance of the function of the defendants as public officers. (2) The action against them was not filed within three months as required by the law. In that the letter of dismissal which is the origin of the plaintiff’s complaint was issued on 30/5/2000, while the plaintiff’s suit was filed or commenced on 28/5/02.

This is well over one year after and against the provisions of the Public Officer’s Protection Act Cap. 379 Laws of the Federation of Nigeria. In arguing the motion filed first by Abdullahi Ibrahim SAN, of counsel submitted that the suit of the plaintiff been filed outside the prescribed period of three months provided by law, render the suit incompetent and the trial court has no jurisdiction to adjudicate on it. The effect of the provision is to extinguish the plaintiff, right to present the claim in any court of law in Nigeria, because the suit is statute barred. Counsel urged the court to strike out and dismiss the plaintiff’s suit. Gaffa Ayodele SAN, for the 4th defendant referred to the Preliminary Objection filed by him; on the issue of statute bar, and agreed with the submission of the Senior Advocate as stated above. In addition, counsel urged the court to dismiss the action/claim against the 4th defendant as none of the nine items of claim in the writ discloses any cause of action against the 4th defendant and referred to the relevant paragraph were references were made against the 4th defendant and that none discloses any cause of action against the 4th defendant. Counsel for the 5th defendant Mr. Ukelonu adopted the submissions of the counsel for 1, 2, & 6th respondent quoted above and urged the court to strike out plaintiff’s claim. Igwuoson of counsel for the 5th defendant referred to the Preliminary Objection filed by him and associated himself with the submissions made by the counsel for the 1st, 2nd, and 6th defendants and also urged the court to dismiss the suit. Each counsel in this submission objected to the counter affidavit filed by the Defendant/Plaintiff/Appellant. The Preliminary Objection filed by each of them is purely on grounds of law; and not supported by an affidavit, there is therefore nothing to file a counter-affidavit on, as the objection was not supported by an affidavit. Each counsel submitted that the counter-affidavit filed by the plaintiff was an excuse to making farther the defendant. They all urge the court to strike out same.

In his ruling, the trial court upheld the submission of the counsel to the 1st, 2nd & 6th defendants, and of the objection of the 4th & 5th defendants for reasons of the claim been filed after the expiration of three months, infact for the claim been filed well over one-year; when it is apparent that the defendant are public service, and that they acted in the course of their apparent public duties. In the case of the 4 and 5th defendant it is evident from the statement of claim, that the paragraphs which made references to the 4th defendant disclose to the cause of action against him. The court below held that such an objection need not be raised in a statement of defence when it is apparent that the court has no jurisdiction ab initio. The court rejected as misconceived the submission of the Plaintiff/Respondent to the preliminary objection that the action of the defendant was performed in a different colour by which the plaintiff/respondent submitted and suggested that the period of three months protection for public servants will not apply in an action for fraud until such an action is manifest the court below ruled that the plaintiff claim contain no claim for fraud against the defendants only allegation against some of the defendant which is not the substance of the plaintiff’s claim for reinstatement to service or for damages therefore. The court below struck out the suit with six thousand Naira damages against the plaintiff/respondent. The plaintiff was dissatisfied with the ruling of the court below, he has filed grounds of appeal describe as A and B each with copious particulars. He seeks an order of the Court of Appeal to set aside the ruling of the Federal High Court. In his brief, the appellant recorded that the person affected by the appeal are the appellant ad the 1st respondent only, namely the Federal Judicial Service Commission. The 2-5th defendants were not cited in the appeal. It is necessary at this stage to record that the order of the Court below to strike out the plaintiffs claim is in response to; and in upholding the submissions made by counsel to the 1st, 2nd and 6th respondent and to counsel to 4 and 5th defendants; which is duly recorded in the record of proceedings. The appellant filed this brief of argument on 10/3/05 and formulated the issues for determination of the appeal as follows:-

Whether the respondent in dismissing the Appellant from his duty post – post was acting within its statutory or constitution authority or duty as to entitle it to the protection afforded by the public officers protection Cap – 379 L.F.N, 1990.

(2) Whether the trial court was right in holding that the appellant suit was statute barred. The appellant flied also a reply brief in which the appellant submitted that the period of commencement of action, and of the filing of the writ should not include the date of the occurrence of the event. The Appellant argued and submitted that since the date he received the last communication from the respondent is 27th day of February, 2002, and the action commenced on 28/5/2002, the three months period of protection should count from 28th not 27th February, 2002, and the date of last communication to him should not count until 29th May, 2002. The reply is in response to the issue raised in the respondent brief. The respondent also raised what they, the counsel described as the Preliminary objection to the effect that the plaintiff claim is against the eight Defendants in favour of whom the court made its ruling to strike out the suit. The appeal filed by the appellant against the 1st defendant’s only suggest a devious plan of the plaintiff to seek to appeal against the other defendant one by one. The 1st Respondent counsel refers to order 3, rule 2 Rules of the Court of Appeal 202. He urged the court to hold that the appeal as constituted is improper and fundamentally defective, and should be dismissed. Subject to the above, the respondent formulated issue for the determination of the appeal thus:-

“(1) Whether the honourable court in considering the Provisions of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria, 1990, rightly held that the Respondent’s did not act outside the colours of their offices

(2) Whether the honourable trial court was right in the computation of time when it held that the action was statute barred.”

The two sets of issues of the appellant and of the respondent are on the same theme. I will deal with the two sets of issues together treating issue one of the appellant with issue one of the Respondent and issue 2 in both cases similarly. On issue one of both parties, one of the grounds, indeed, the main ground submitted by the appellant for objection to the exercise of jurisdiction on the appellant which groused the appellant in saying that the 1st Respondent has no power to dismiss him from the Services at the Deputy Chief Registrar is because he the appellant- said he is on Secondment to the service of the Federal Judicial Service Commission and that at worse he the appellant should have been sent back to the body that seconded him to the Federal capital Territory. I find in such a submission, absolute fallacy. The letter of appointment offered the appellant as Deputy Chief Registrar supports no suck averment.

The appellant applied for appointment as a Deputy Chief Registrar to the Chief Registrar Court of Appeal by his application dated 9th February, 1997, exhibit in the proceedings below. Apart from stating in the application that he “was currently a legal officer with the Federal Capital Development authority; the appellant did not state in the application that he wished to be considered on Secondment from any previous or current employer; and the appellant had responded to an advertisement for the post of a Deputy Chief Registrar see page 35 of the record of proceeding. On page 36 of the said record is the letter of offer of appointment to the appellant. Nothing is contained in the said offer of appointment made to the appellant by the Federal Judicial Service Committee; about the appointment of the appellant being on Secondment from anywhere; or from the Federal Capital Territory Authority. In particular in paragraph 2 of the letter of offer of appointment the following are recorded “Your appointment is subject to the terms and condition laid down in the Federal Public Service of Nigeria, and to the rules and regulations of the Federal Judicial Service Commission.” Please see page 36 of the record of proceedings.

At no time during the Service of the appellant with the 1st respondent did the 1st respondent participate in the vainglorious communications shown as exhibit in the record of proceedings which the appellant indulged in, with the Federal Capital Authority. The letter in response to the several letters written by the appellant was never endorsed to the Federal Judicial Service Committee and the latter did not know of the day dream of the appellant that he simultaneously belong in the Services of “two separate arms of Services” of the Federal Government of Nigeria. By the acceptance of letter of appointment as the Deputy Chief Registrar, the appellant has accepted the terms of his appointment to be bound by the conditions laid down in the Federal Public Service of Nigeria and the Rules and Regulations of Federal Judicial Service Committee. Consequently, the submission is false, that the appellant was not on a full time Service of the Federal Judicial Service Committee or that the Respondent “acted out of colour” when the appellant was dismissed from Service. In my view and I so rule the appellant by his acceptance that his appointment was subject to:

(i) Condition and rules laid down in the public service;

(ii) That he is subject to the rules and regulations of the Federal Judicial Service Commission is under the Sole and direct control and authority of Federal Judicial Service Committee; and subject to the rules of the Judicial Service Commission.

The Appellant cannot with parol statement vary or contradict the term and conditions of his appointment which is writing see Akpare v U.M 20 NLR. The order made of the dismissal of the appellant was properly made. If therefore the appellant wishes as he did, to exercise a right to go to court on the issue of his dismissal he must and should have done so within three months of the receipt of the letter of dismissal, as provided in the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria. Indeed, if the issue raised by the appellant is to be treated facetiously the answer should be, since the appellant claim to have a right of return to the Federal Capital Territory office; he should suo motu return to the latter; and the question may be asked why commence litigation, why does the appellant not just proceed to his original employer in another government as he submitted. The clear answer is that the appellant seeks to engage in unprofitable semantic argument; which in this case goes to no avail. I resolve issue one against the appellant.

Issue two of both parties is on the method of calculation of the three months period from when the cause of action arose to be caught by the Public Officers Protection Act.

The cause of action in the instant appeal of the appellant arose the date on the letter of dismissal from the service of the plaintiff/appellant unless the letter states otherwise. The letter which issued from the Federal Judicial Service Commission to the appellant is dated 30th May, 2000, but the date of the dismissal in the letter is 16/5/2000. Within three months of the date after 16/5/2000 the plaintiff/appellant may, acting within the provision of the Public Officers Protection Act Cap 397 commence an action against the Public Servants cited in the Writ of Summons if the respondents are acting within their judicial jurisdiction. The letter is contained all page 140 of the record of proceedings and it states the dismissal is with effect from 16/5/2000.

Any subsequent letter from the defendant which does not change the date of dismissal, and which conveys nothing differently from letter of the 16/5/2000 is a confirmation, of the contents of the earlier letter. The confirmation became necessary for the avoidance doubt as a result of representation made to the Federal Judicial Service Commission by the appellant. The reliance by the appellant of the respondent’s letter of confirmation of dismissal on a subsequent date as creating the fresh cause of action is idle. The subsequent letter did not renew the date the cause of action arise as that date. So certain of his dismissal from service of the Respondent that he wrote several petition to the head State appealing against his dismissal. The petition are dated 23/5/2000; see page 141 of the record. The Senate President 23/5/2000 pages 171. A letter to the Inspector General of Police praying for the reversal “the criminally” motivated dismissal from the service to name a few. The letter is also dated 23/May/2003. All the letters petitions and representations were made by the appellant in the expectation and hope that his dismissal from service on 16/5/200 which was conveyed in a letter dated 30/5/2000 could be reversed. If the appellant claimed to have received a letter from the respondent on 27/March/2002, which does not reverse the decision conveyed to him of his dismissal from the service, the cause of action and remained a date after 16/5/2000. Therefore, the date from which the appellant can institute his right of Action is 16/5/2000 if interpreted liberally 17/5/200 not 27th March, 2002. The suit was commenced against the defendants on 28th May, 2002, see The Registrars Certificate on page 1 of the record of proceedings, and the writ was issued by the Registrar on 30th May, 2002 from the time the cause of action arose on 16 or 17/5/200, to 28/May, 2002 is a period of over one year, which exceeds the three months period within which the appellant as plaintiff in he court below can commence proceedings against a public officer. In the instant case, the period has elapsed and the right of the plaintiff/ appellant to institute the action in a court below is extinguished and lost for all times See IBRAHIM V JSC (1998) 14 NWLR (pt 584) p.1. Per Iguh JSC; (ii) JARE v NUNKU 1995 5 NWLR Pt 394 129 SC.

In the instant appeal, the appellant in the court below has failed to show to the court below the true condition of service as being under the Federal Judicial Service Committee/Commission; instead he affects to be still under another service which is not alien to the Federal Government of Nigeria. It is a sufficient reason why his claim should be determined adversely against him. There is nothing in his written terms of service which suggest that the appellant is on secondment service to the lot Respondent. It is not so contained in the letter of appointment to the appellant. The appellant merely hoped to compound issue by engaging in an oral evidence to his service situation. It is settled law, that parole evidence is not admissible, to add, to vary or contradict a written document. See OLANYILE V AFRO CONTINENTAL NIGERIA LTD (1996) 7 NWLR (Pt 458) 29, 40;

(ii) MRS BISI OLATOYE V MADAM SARAH A BALOGUN (1990) 7 SCNJ 205, at 207.

There is no issue of secondment of service in the appellant’s appointment with the Respondent. Admittedly after receiving the letter of dismissal from the service of the Respondent the appellant wrote to several people, including the respondent in the hope of seeking a reversal of the letter of dismissal and hoping to be registered to his former position, such period may be described as a period of negotiation. The period of negotiation does not stultify; or renew the date of the cause of action arose.

The situation arose in the case of EBOGBE V NNPC (1994) 5 NWLR (Pt 347) 649 at 659. The Supreme Court in a majority decision held that the period of negotiation since a cause of action arrives does not revive or affect the date the cause of action arose. This decision it held despite the humane obiter dictum in the reasoning of the Hon Justice S. Onu JSC. Consequently, once the cause of action has arisen unless an intervening event alter the original event the date after the event remains the date from which calculations of applicable date should commence. See BRITISH AIRWAYS PLC V AKINSOYE 1995, 1 NWLR Pt 374, at 724; (ii) JALCLCO LTD V OWONILOYE TECH. SERVICES LTD. 1995 4 NWLR Pt 391 534 at 583 SC. The cause of action in this instant appeal is 16th May, 2000, from which date three months within which the appellant should have commenced his action against the Defendants in the court below, or Respondents in this court to fall within the period to sue under the Public Offices Protection Law Cap 397. LFN the appellant has failed to do so, his right to sue is extinguished.

I wish now to comment on the observation recorded in the respondents brief who expressed the anxiety that the ruling of the court below affects all the parties, in favour of all of whom the court struck out the plaintiffs claim, but the appeal filed is against the 1st Respondent alone. This sufficient to state here that this court is not in the habit of pronouncing judgment on hypothetical issue. Until the appellant seeks to appeal against any other of the affected parties in favour of whom the judgment of the court below is given this court will keep its peace on that issue. The appellant has complained that the objection to the jurisdiction of the court made by the Respondent months after the cause of action arose under the Public Officers Protection Act Cap 397 Laws of Federation of Nigeria and the learned trial Judge below has properly so rule. I resolve issue 2 also against the appellant in favour of the Respondent. I affirm the decision of the court below, and dismiss the appeal. I make an order against the appellant of N10,000.00.

Other Citations: (2005)LCN/1851(CA)