Enugu State Civil Service Commission & Ors. V. Agu Geofrey (2006)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an appeal against the decision of an Enugu State High Court in suit No. E/683/2001 – Enugu State Civil Service Commission and 2 others v. Agu Geofrey, delivered on the 22nd day of September 2003 wherein it was held inter alia that the prevention of the plaintiff now respondent by the defendants now appellants from carrying out the functions and duties of his office is unconstitutional, illegal, null and void in that it is contrary to the provisions of the Anambra State Civil Service Rules (applicable to Enugu State) and that the plaintiff remains in the employment of the Enugu State Civil Service with all the rights and privileges of a bona fide civil servant in Enugu State including salaries and other benefits attached to his office.
In order to appreciate this appeal, it is necessary to refer to the facts leading to the appeal. Briefly the facts are that the respondent a public servant under the Public Service of Enugu State was disengaged by the appellants through a published statement sometimes in October 1999. Consequent upon the published statement, the respondent and others similarly affected by the publication protested by embarking on industrial action by way of strike. Subsequently a meeting was held between the disengaged workers including the respondent through his representatives and the appellants’ representatives on the 29th and 30th November, 1999.
Pursuant to the agreement reached at the meeting, the respondent resumed his duties and was paid his October and November 1999 salaries.
However, on or about 22nd May, 2000 the appellants in disregard to the agreement earlier reached between the parties prevented the respondent from carrying out the functions and duties of his office and refused to pay his salary from December 1999 till date.
The respondent after issuing the necessary pre-action notices to the appellants, challenged the action of the appellants in court and prayed for the following reliefs-
“(1) A declaration that the prevention of the plaintiff by the defendants from carrying out the functions and duties of his office is unconstitutional, illegal, null and void in that it is contrary to the provisions of the Anambra State Civil Service Rules (applicable to Enugu State).
(2) A declaration that the plaintiff is still in the employment of Enugu State Civil Service with all rights and privileges of bonafide civil servant.
(3) An order of perpetual injunction restraining the defendants, their servants, agents, privies whosoever or howsoever called from preventing the plaintiff from performing any of his functions and duties of his office or interfering with his employment, and the rights and benefits attached to his office.
(4) A mandatory order compelling the defendants to pay the plaintiff all his salaries, benefits and allowances accruing to him as a civil servant of Enugu State Civil Service with immediate effect from December 1999 to date.”
At the conclusion of hearing, judgment was delivered in favour of the respondent in part, only legs 1 and 2 of the claims were granted.
Being dissatisfied with the decision, the appellants appealed against the judgment while the respondent cross-appealed.
The appellants/cross-respondents formulated only one issue for determination as follows-
“Whether the trial court was right in holding that the case was not statute-barred as the respondent did not commence the action within 12 months after the cause of action arose as is required by section 11(1) of the State Proceeding Law, Cap. 131, Laws of Anambra State of Nigeria, 1986 (applicable to Enugu State).
The respondent/cross-appellant also formulated two issues for determination as follows-
“(I) Whether from the facts and circumstances of the case, the trial Judge was right in holding that the plaintiff/respondent’s case was not statute-barred, since the cause of action arose on or about 22nd May, 2000 and not October 1999 as contended by the defendants/appellants.
(2) Whether the learned trial Judge was right in law in refusing to grant the perpetual injunction and mandatory order sought by the cross-appellant having granted the declaration orders sought by the cross-appellant.”
At the hearing, learned counsel for the appellants adopted and relied on the appellants’ brief of argument although she did not file cross-respondents’ brief of argument and she did not respond to the issue raised in the cross-appeal.
The learned counsel for the respondent/cross-appellant adopted and relied on the respondent’s brief as well as cross-appellant’s brief of argument.
The issues formulated by learned counsel on behalf of the parties are similar. However, the issues set out by the respondent/cross-appellant are considered relevant and apt to determine this appeal.
Issue 1
The learned counsel to the appellants made reference to the fact that the respondent filed his suit dated 22nd day of May, 2001 at the Enugu State High Court against the appellants. She stated that the suit was filed after over 16 months after the act of disengagement took place contrary to the provisions of section 11(1) of the State Proceeding Law, Cap. 131, Laws of Anambra State, 1986 (applicable to Enugu State) which section states as follows –
“No action or proceeding should lie or be instituted under this law, unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof.”
It was contended by learned counsel for the appellants that the cause of action in this case arose in October 1999 when the respondent was disengaged from the service of Enugu State Government. She stated further that the action filed by the appellant on 22nd day of May, 2001 did not comply with the provisions of the relevant laws. She relied on the following cases –
– Udoh Trading Co. Ltd. v. Abere & Anor. (2001) 11 NWLR (Pt. 723) 114 at 134
– First Bank of Nigeria Plc. v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) 441.
Learned counsel for the appellants referred to exhibit “B” at page 39 of the record of appeal and contended that the negotiation as shown in the said exhibit cannot stop the period of limitation from running, she referred to the following cases –
– Ogbah & Anor. v. Bende Divisional Union, Jos Branch & 17 Ors. (2001) 3 NWLR (Pt. 701) 579 at 582.
– Eboigbe v. N.N.P.C. (1994) 6 SCNJ 71; (1994) 5 NWLR (Pt. 347) 649.
It was also the contention of the learned counsel for the appellants that the effect of an action being statute-barred is the loss of the right of the plaintiff to enforce the cause of action by judicial process and such action must be dismissed as not being proper before the court. She referred to the following cases
– Umukoro v. N.P.A. (1997) 5 KLR 954; (1997) 4 NWLR (Pt. 502) 656.
– Sanda v. Kukawa Local Government (1991) 1 NSCC 356; (1991) 2 NWLR (Pt. 174) 379.
In conclusion, she urged this court to hold that the respondent’s suit is statute barred having been filed more than 12 months after the cause of action accrued and accordingly should be dismissed. On the other hand, learned counsel for the respondent/cross-appellant submitted that the respondent’s action was not statute barred because the initial cause of action arose in October 1999 but that it was overtaken by events as evidenced by the communique’ dated November 29 and 30, 1999, particularly paragraphs 5 and 6 on page 39 of the record.
He went further in his submission that the legal interpretation of exhibit “B” which was the communique’ duly signed by the representatives of the respondent and the appellants’ representatives (see pages 39 – 40 of the record) is that the respondent went back to work and was paid his October and November salaries. It was after the 22nd day of May, 2000 following the communique’ that the respondent was again prevented by the appellants from carrying out the duties and functions of his office. He relied on the following cases –
– Abey & Ors. v. Alex & Ors. (1999) 14 NWLR (Pt. 637) 148 at 59.
– Obayiuwana v. Ede & Ors. (1990) 1 NWLR (Pt. 535) 670.
According to section 11(1) of the State Proceedings Law, Cap. 131, Laws of Anambra State 1986 (applicable to Enugu State): No action or proceedings should lie or be instituted under this law, unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof.
In Savannah Bank Nig. Ltd. v. Pan Atlantic Shipping & Trans Agencies Ltd. & Anor. (1987) 1 NSCC page 67 at 70; (1987) 1 NWLR (Pt. 49) 212 it was held that-
“A limitation law does not act in vacuo. It is the defendant who ought to plead and prove that the claim is statute-barred. This will lead to a consideration of the facts or combination of the facts which gave the plaintiff the right to sue …
Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with limitation statutes, to determine the precise date upon which the cause of action arose, without this basic fact it will be impossible to compute the time.”
In the instant case, the respondent’s action against the appellants was commenced on the 22nd day of May 2001 and according to the statement of claim, paragraphs 14 and 15, it was on 22nd day of May, 2000 that the appellants prevented the respondent from carrying out functions and duties of his office.
I agree with the submissions of the learned counsel for the respondent that the legal interpretation placed on exhibit B (on page 39-40 of the record) is that the respondent went back to work and was paid his October and November 1999 salaries. It was after 22nd day of May 2000 that the respondent was again prevented by the appellants from carrying out the duties and functions of his office.
The above position is supported by the view of the Supreme Court in Abey & Ors. v. Alex & Ors. (supra) that:
“parties are entitled to settle or compromise all or any of the questions or dispute between them on any term and condition on which they agree even without the approval or sanction of the court, or prior reference to the court. Such an agreement or out of court settlement between the parties supersedes the original cause of action altogether and the court has no further jurisdiction in respect of the original cause of action which has been so superceded.
If the terms of such new agreement or out of court settlement are breached or not complied with, the injured or aggrieved party must seek his remedy based on the agreement or out of court settlement.”
Also in Obayiuwana v. Ede & Ors. (supra) it was held that”-
“Where the parties compromise or settle pending proceedings, whether before, at or during the trial, without making provision, expressly or by necessary implication, for obtaining an order of court to embody the agreed terms, such a compromise or a settlement constitutes a new and independent agreement or bargain between the parties made for good consideration and its effect is as follows –
(a) it puts an end to the proceeding which have been compromised or settled, for they are thereby spent and exhausted.
(b) it precludes parties from taking any further steps in the action; and
(c) it supercedes the original cause of action altogether.”
Furthermore a careful reading of pages 83 to 97 of the record showed that PW1 and PW2 gave copious evidence to support the averments in paragraphs 1 to 25 of the statement of claim. Although the appellants filed a statement of defence, no evidence was led to ventilate the defence.
The position of the law is clear that averments contained in pleadings on which no evidence is adduced are deemed to have been abandoned. See Uwegba & 4 Ors. v. A.-G., Bendel Slate & 3 Ors. (1986) 1 NWLR (Pt. 16) 303.
Also a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiffs notwithstanding his general traverse.
See – F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 272.
In this case since the appellants failed to lead evidence at the lower court, the evidence called by the respondent on the issue of limitation of action and other issues were accepted by the learned trial Judge in arriving at the conclusion that the cause of action arose in May 2000.
The learned trial Judge was therefore right when he held –
“that the respondent’s action could not be said to be statute-barred because the cause of action is not the disengagement of October 1999, because that was settled and the plaintiff was called back to work and paid his salaries for October and November 1999. The cause of action is that after the plaintiff resumed work, in May 2000, he was again prevented from performing his duties.”
It must be emphasized at this juncture that where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down, by the limitation law for instituting such an action has elapsed. An action commenced after the expiration of the period, within which an action must be brought stipulated in a statute of limitation is not maintainable.
Consequently, it is my view that the respondent’s case was not statute-barred when the action was instituted on 22nd day of May 2001. This issue is therefore resolved against the appellants.
Issue 2
Learned counsel for the respondent/cross-appellant submitted that the employment of the respondent is governed by statute. He went further in his submission that a court can only grant the reliefs sought by the parties and further that a court is bound to base its decision upon the issues raised by the parties themselves.
He referred to the following cases –
– Olaniyan v. Unilag (1985) 3 NWLR (Pt. 9) 599 at 632
– The Registered Trustees Christ Apostolic Church, Nigeria v. Uffiem (1998) 10 NWLR (Pt. 569) 312, para. G.
Learned counsel contended that the court is entitled to rely on evidence adduced before it and not on speculation in the grant of relief before it.
The learned counsel for the appellant/cross-respondent did not file any brief in reply to the cross-appellant’s brief and she did not oppose the cross appeal at the hearing, rather she urged that the cross appeal be allowed.
It is the fundamental principle of law that findings of fact and conclusions from facts of a trial should be based on evidence adduced before the court and not on speculation or possibilities. See Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641 at 672.
The grant of the relief of perpetual injunction and mandatory orders are consequential orders, which should naturally flow from the declaratory orders granted by the court.
In the instant case, having held that:
(a) That the prevention of the plaintiff by the defendants from carrying out the functions and duties of his office is unconstitutional, illegal, null and void, in that it is contrary to the provisions of the Anambra State Civil Service Rules applicable to Enugu State, and
(b) That the plaintiff remains in the employment of Enugu State Civil Service, with all the rights and privileges of a bonafide civil servant in Enugu State including the salaries and other benefits attached to his office.”
The trial Judge should have granted the order of injunction as well as mandatory order compelling the appellants/cross-respondents to pay the respondent/cross-appellant all his entitlement as contained in paragraphs (3) and (4) of the prayers in the statement of claim. Moreso since the defendants were deemed to have accepted the fact adduced by the plaintiff in the statement of claim upon which evidence was given.
In the final analysis, it is my view that this appeal is unmeritorious. It fails and it is accordingly dismissed. The cross-appeal succeeds and it is allowed. The judgment of the learned trial Judge delivered on the 22nd day of September, 2003 and the declaratory reliefs granted therein are hereby upheld. Furthermore since the respondent has made out a case to be entitled to the consequential reliefs sought in paragraphs (3) and (4) of the prayers in the statement of claim, accordingly the said reliefs are granted in the following terms –
(a) An order of perpetual injunction restraining the defendants/appellants, their servants, agents, privies whosoever or howsoever called from preventing the plaintiff/respondent/cross-appellant from performing any of his functions and duties of his office or interfering with his employments and the rights and benefits attached to his office is hereby granted.
(b) Furthermore, a mandatory order compelling the defendants/appellants/cross-respondents to pay the plaintiff/respondent/cross-appellant all his salaries, benefits, and allowances accruing to him as a civil servant of the Enugu State Civil Service with immediate effect from December 1999 to date is hereby made.
The plaintiff/respondent/cross-appellant is entitled to the cost of this appeal, which is assessed as (N10,000.00) Ten thousand naira against the defendants/appellants/cross-respondents.
Other Citations: (2006)LCN/2091(CA)
