Christian I. Yare V. National Salaries, Income and Wages Commission (2005)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
T
his is an appeal against the decision of Adah, J. of the Federal High Court, Abuja, delivered on the 26th day of June, 2003, dismissing the appellant’s claim before him.
The appellant, a driver mechanic on GL 07 under the employment of the respondents, as plaintiff, before the lower court, instituted the suit vide a writ of summons dated 30th March, 2001, against his employers, the respondent, claiming the following reliefs:
(a) A declaration that the compulsory retirement of the plaintiff was wrongful as it did not meet the requirements of the civil service rules.
(b) An order setting aside the retirement of the plaintiff on the grounds that the antecedents leading to the retirement were unauthorized and unofficial, thus, cannot result in an official sanction.
(c) An order of court re-instating the plaintiff to his office without prejudice to any promotion or benefit he may have been entitled to;
(d) An order compelling the respondent to pay to the plaintiff all salaries, allowances and claims from the date of the purported retirement till date and from the date of judgment until the judgment is finally liquidated.
To the writ of summons was annexed a statement of claim of 18 paragraphs whereby in paragraph 18 thereof he claimed the same reliefs.
The respondents entered a conditional appearance on the 3/5/01 and also filed a notice of preliminary objection with a statement of defence of 10 paragraphs.
His grounds on the preliminary objections are;
- That the action be dismissed for being statute-barred;
- That the action be struck out for being frivolous, vexatious and an afterthought; and That the plaintiff was not entitled to any or all of the reliefs claimed.
The preliminary objection was moved on 8/2/2002 and in a considered ruling of 26/4/2002, the court overruled the preliminary objection and ordered that the matter proceed to full trial at the end of which the lower court delivered judgment and dismissed the plaintiff’s case on the ground that the action was statute-barred having been brought one year after the cause of action arose.
The plaintiff, who would henceforth be referred to as the appellant, was dissatisfied and had now appealed to this court on 3 grounds of appeal.
From these grounds he formulated 2 issues to wit:
- Whether the learned trial Judge was right, in considering only Exhibit 7 in determining when the plaintiff’s cause of action arose, while the plaintiff base his claims on “Exhibit 8” an Exhibit that was lawfully admitted and not objected to by the defendant.
- Whether it was right for the learned trial Judge to determine cause of action from the pleadings of the defendant.
- Whether the plaintiff was not denied his right of fair hearing by the trial judges non-consideration of his evidence, arguments and issues raised for his consideration.
The respondents similarly identified 3 issues, which are identical to the issues as raised by the appellant for the determination of the appeal.
On the day this appeal was heard, learned Counsel for the appellant applied to withdraw issues 2 and 3 and the court granted the application and struck out issues 2 and 3 with all argument based on them. This appeal is accordingly going to be determined solely on the 1st issue.
On this issue, the appellant contends that it is trite law that a cause of action is determined by the statement of claim of the plaintiff and not on the defence put forward by the defendant. That trial Judge erred in law, when he placed reliance on the statement of defence and on “Exhibit 7” as to the time the cause of action in the matter arose, instead of relying on the plaintiff’s pleadings, which challenges the defendant’s action as contained in Exhibit 8. Pointing out that neither in his pleading nor evidence before the court did he raise directly any issue complaining of any of the issues raised in “Exhibit 7” except in seeking that “Exhibit 7” be declared a nullity by virtue of “Exhibit 8.” Submitting that the cause of action arose out of the contents of “Exhibit 8” as against the date in “Exhibit 7” as found by the learned trial Judge.
The respondent, in reply, submitted that the act complained of by the appellant, i.e. his compulsory retirement happened on the 9th of December, 1999, as contained in Exhibit 7. That Exhibit 8 the reply of the Senior Management Committee to the appellant’s appeal to them in respect of his compulsory retirement received on the 4/1/2001, did not form part of he appellant’s cause of action. Rather, his cause of action arose as a result of the compulsory retirement of 9/12/1999. That the learned trial Judge was quite right to prefer “Exhibit 7” as against “Exhibit 8” as the appellant’s cause of action arose out of Exhibit 7. That as much as the appellant conveniently chose the 4th of January, 2001 as the date when his cause of action arose, it did not conform with his complaint in his statement of claim.
That from the pleadings the cause of action arose as at 9/12/1999. The action not having been initiated 3 months after the said date, the trial court’s jurisdiction was therefore ousted and the trial Judge was right to have held so. He urged us to dismiss the appeal.
To my understanding, the determining factor in this appeal is the date the cause of action was said to have arisen. The appellant has maintained that the date is as contained in Exhibit 8, i.e. 4/1/2001, when he received a reply from the respondents affirming his 3 compulsory retirement, while the respondents are contending that the date is 9/12/1999, when the appellant was compulsorily retired.
Now what is a “cause of action?”
Straud’s judicial dictionary, fourth edition had at page 406 defined a “cause of action” as the entire set of facts that gives rise to an enforceable claim. The phrase comprises of every fact which, if traversed, the plaintiff must prove in order to obtain judgment.
Similarly, the court faced with the same question have defined he phrase in the following terms;
“Every fact which is material to be proved to entitle a plaintiff to succeed, or all those things necessary to give a right to a relief at law or in equity” amounts to “cause of action”.
See Ogbimi v. Ololo (1993) 7 NWLR (Pt. 304) 128 at 136.
“A cause of action, 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 complaints and the consequent damage.” SAVAGE V. UWAECHIA (1972) 1 ALL NLR 255.
“When facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
See Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369 at 382-383.
In determining when a cause of action is said to have accrued, the courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim. See Ogbimi v. Ololo (supra); Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501; Ogbah v. B. D. U. (Jos Branch) (2001) 3 NWLR (Pt. 701) 579.
In the determination of the cause of action in this matter, I have examined the pleadings of the parties, the decision of the trial Judge based on the pleadings and in particular the contentious Exhibits 7 and 8. For a better understanding of the issue involved, I have produced hereunder some paragraphs of the appellant’s amended statement of claim and Exhibits 7 and 8.
Statement of claim
- The plaintiff is a senior driver/mechanic previously in the employment of the defendant.
- The defendant is a Federal Government of Nigeria Parastatal under the Presidency;
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10…
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- The plaintiff avers that prior to his compulsory I retirement, no warning or any type of punitive measures recommended by the Civil Service Rules were meted out to him.
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- The plaintiff avers that the compulsory retirement was actuated by malice and vicitimization, as the laid down procedures were not followed. Thereafter followed the claims which I had earlier reproduced in this judgment.
Exhibit 7
The Presidency
National Salaries, Incomes And Wages Commission
Ref: SWC/PP/PF.165/140
Wing B Third Floor
Telephone
Federal Secretariat Complex
Shehu Shagari Way
P.M.B. 346, Garki
Abuja, Nigeria
Date: 9th December, 1999
Mr. C. I. Yare
Senior Driver Mechanic 1
UFS: Director (F&S)
National Salaries & Wages Commission
Federal Secretariat
Abuja
Retirement From Service
I am directed to inform you that the Management of the Commission has approved that you be retired from the service with effect from 9th December, 1999. This action is based on the decision on the case of misconduct, negligence in your duty and gross insubordination leveled against you, in contravention of the Civil Service Rules (CSR) 04201.
- You are to hand over all government property in your possession, including the commission’s identity card issued to you, to the Head of your Department and obtain a clearance certificate. This certificate will be used to process your benefits.
Signed
Ibe Ochu Okoba
For: Chairman
Exhibit 8
The Presidency
National Salaries, Incomes And Wages Commission
File No. SWC07/S.6/Vol.I/85
Wing B Third Floor
Telephone
Federal Secretariat Complex
Shehu Shagari Way
P.M.B. 346, Garki
Abuja, Nigeria
Date: 4th January, 2001
Mr. C. I. Yare,
N.S.I.W.C.
Staff Quarters,
Mandalla.
Re: Appeal Against Compulsory Retirement From Service of The Commission
I am directed to refer to your appeal letter on the above subject, dated 3rd August, 2000, and covey to you the decision of the Senior Staff Committee on the issue. Consequent upon your appeal letter, the Senior Staff Committee of the Commission met on 31st October, 2000, and decided as follows:
(i) You, Mr. C. I. Yare, Senior Driver/Mechanic (GL06), who was retired on grounds of misconduct, negligence of duty and gross insurbodination should not be reinstated into the service in accordance with the existing rules and regulations.
(ii) Your request for payment of eleven (11) days duty tour allowance should not be granted because the former Director (PPID) actually housed, fed and even gave you money during the trips, only you contended that the money given to you was not adequate.
In addition, the trips were not official and that was the reason the then Director (PPID) did not recommend you for payment.
(iii) The period of your suspension should be converted to interdiction since your actions were not criminal. Consequently, you would be paid 100% of your salary withheld during the period, in line with the provision of part V paragraph 10(ii) of the “Guidelines on Appointments, Promotions and Discipline.” Published by the Federal Civil Service Commission.
You are required to hand over all government properties in your possession, including the Commission’s identity card issued to you, to the Head of your Department and obtain a clearance certificate. This certificate will be used to process your benefits.
Signed
- D. Adeola
Director (PM)
For: Chairman
In his pleadings and in the reliefs sought by the appellant in his statement of claim, reliance was placed on the compulsory retirement; no reference was made in the statement of claim to Exhibit 8 at all.
Exhibit 7 was a retirement letter from the respondent as employer to its employee, the appellant. That letter terminates in all intents and purposes the contract of employment between the two of them.
One of the relief’s, the appellant was seeking before the lower court was a re-instatement to his former post or position as a driver/mechanic under the employment of the respondent and thus an admission that there was no longer a contractual obligation between them.
Exhibit 8 is a reply to an appeal made by the appellant to the respondent to reconsider his compulsory retirement which was turned down and rejected. In effect, before the letter of appeal, there was no contract of employment between the parties.
If there was no Exhibit 7, there would not have been Exhibit 8 or this action. Consequently, this action arose out of the letter of retirement dated 9th December, 1999. The cause of action in this matter therefore arose on 9th December, 1999 not as contended by the appellant on 4th January, 2001.
I am fully in agreement with the finding of the learned trial Judge that the cause of action arose as at 9/12/1999.
The appellant having failed to initiate the case within 3 months of the accrual of the cause of action as required by the provisions of section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990 was out of time, and the matter being statute-barred, the lower court lacks the competence to try the matter.
On the whole, I find no substance in this appeal and hereby dismiss same. I affirm the decision of the lower court delivered on the 26/6/2003 dismissing the appellant’s claim before it.
I make no orders as to costs.
Other Citations: (2005)LCN/1743(CA)
