Kwara State Civil Service Commission Ors & V. Joshua Dada Abiodun & Ors (2009)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A

By an Originating Summons dated the 24th day of August, 2007, and filed in the High Court of Kwara State, Ilorin Judicial Division on the same date, the Claimants (now) Respondents sought for determination of the following questions:-

“1. Whether the purported dismissal of all the Claimants from the service of kwara State Government based upon their convictions by the Miscellaneous Offences Tribunal is still justifiable, lawful and valid when the said convictions and entire criminal trial had been invalidated, nullified and declared unconstitutional by the Court of Appeal in Joshua Dada Abiodun v. Attorney-General of the Federation CA/IL/67/2006 delivered on Tuesday, the 3rd day of July, 2007.

“2. Whether or not the Claimants herein are entitled to reinstatement into the service of kwara state Government; payment of all their unpaid salaries, emoluments and promotion from 1997 till date of judgment based upon the nullification of their convictions and criminal trial by the Court of Appeal’s judgment in Joshua dada Abiodun & Ors v. Attorney-General of the Federation (supra).

“PARTICULARS”

1. The Claimants were tried and convicted for the commission of a criminal offence, to wit: obtaining money by false pretences by knowingly defrauding the Federal Republic of Nigeria to the tune of N72, 000, 000.00 contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Decree, 1995.
2. The Claimants were tried and convicted by the Miscellaneous Offices Tribunal at Ilorin. The Tribunal’s judgment was delivered on 27th day of May, 1998 and, as a result, the Claimants were sentenced to various terms of imprisonment on 28th May, 1998.
3. Consequent upon the convictions, all the Claimants were allegedly dismissed from Kwara State Government Service in 1997 or thereabout.
4. By the Court of Appeal decision in Joshua Dada Abiodun v. Attorney General (supra) the said convictions and criminal trial the bases of claimants’ alleged dismissal from Kwara State Government Service, were declared null, void, unconstitutional and of no effect whatsoever.
5. With the nullification of Claimants’ convictions, the parties should go back to the status quo ante bellum before their arrests, nullified trial and convictions; and that is, their reinstatement to the service of Kwara State Government.
6. A dismissal letter as a form of notice of severance of master and servant relationship does not take effect until it is appropriately served.”

The Claimants then claimed for the following Reliefs:-

“1. A DECLARATION that the purported dismissal of the Claimants from the service of Kwara State Government is unlawful, invalid and of no effect whatsoever.

“2. A DECLARATION that base upon the Court of Appeal decision in Joshua Abiodun Dada v. Attorney General of the Federation (supra), which nullified the criminal trial and convictions of the Claimants, the said Claimants are entitled to their reinstatement into the service of the Kwara State Government, and consequentially, their unpaid salaries, emoluments and promotions as at when due from 1997 till the date of judgment.

“3. AN ORDER mandating the defendants to reinstate the Claimants to the service of Kwaro State Government and pay them the unpaid salaries, emoluments, and promotions as at when due from 1997 till the date of judgment.

“4. AN ORDER of injunction restraining the Defendants and/or anybody however from determining any of the Claimants’ service with the Kwara State Government without recourse to the laid down rules and regulations, and/or any other applicable laws safeguarding their master and servant relationship with the Kwara State Government.”

The Originating Summons was supported by a fifteen paragraph Affidavit deposed to by the 1st Claimant Joshua Abiodun Dada, on behalf of the Claimants. See pages 5 – 7 of the Records. Annexed to the Affidavit in support were Exhibits JDA1 – JDA6 – the documents relied upon by the Claimants to prove their case in the lower court.

The Defendants entered appearance on the 10th day of October, 2007 by a Memorandum or Notice of Appearance dated 8th October, 2007 and the Claimants subsequently brought a motion on Notice dated 2nd November, 2007 and filed on the 6th November, 2007 for leave to amend the Originating Summons for the purpose of joining the Kwara State Civil Service Commission as a party to the suit. The Originating Summons was also supported by a Written Address. See pages 171- 184 of the Records.

By a Motion on Notice dated 26th November, 2007, the Defendants sought and were granted leave to file their Counter-Affidavit and Written Address out of time. The Counter – Affidavit can be seen at pages 193 – 195 of the records, while the Written Address is contained in pages 196 – 202 thereof. Annexed to the Counter- Affidavit and Address of the Defendants were also series of documentary Exhibits marked MOJ 1- MOJ 3.

From what is recorded at page 257 of the Records, the Claimants also filed a reply to Defendants’ Written Address dated 7th of December, 2007 on the same date while the Defendants filed what they termed “REPLY ON POINT OF LAW TO CLAIMANTS’ REPLY TO DEFENDANTS’ WRITIEN ADDRESS”, on the 10th day of December, 2007.

Issues having been joined, adoption of the respective Addresses of parties was concluded on the 11th of December, 2007 and the case adjourned to the 29th day of January, 2008 for judgment. In his considered judgment, the learned trial Judge held at page 13 of the judgment (page 284 lines 22 -28 and page 285 lines 5 -10 of the Record of Proceedings) as follows:-

“I quite agree with the learned counsel to the Claimants’ submission that the condition precedent for the dismissal of the Claimants was utterly disregarded. The case of OLANIYAN V UNIVERSITY OF LAGOS cited by him is apposite and relevant.

I also refer to the case of DR. TUNDE BAMIGBOYE V. UNIVERSITY OF ILORIN AND ANOTHER (2001) FWLR (PART 32) PAGE 23 where the Supreme Court said in situations where the employment is of statutory flavour:-

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Declaring the dismissal null and void means the parties are back to status quo and automatic reinstatement. I therefore hold that the claimants herein are entitled to reinstatement and arrears of their salaries and emolument and promotions as at when due from 1997 till the date of judgment.

In conclusion, I hold that the Claimants’ case is meritorious and I hereby grant the four reliefs sought by the Claimants in this suit.”

Aggrieved by the judgment of the lower court, the Appellants on the 10th day of March, 2008, filed a Notice of Appeal with two (2) Grounds on the same date and followed same with a motion for stay of execution of the said judgment. Following the transmission of the Record of Appeal to this Court, the Appellants by a Motion On Notice dated the 17th of October, 2008 and filed on 20th October, 2008, which motion was granted on the 23rd October, 2008, sought the leave of this Court to amend the Notice of Appeal earlier filed by adding Additional Ground 3 to the original Notice of Appeal. In line with the rules of this Court, briefs were dully exchanged by the parties and on the 12th of February, 2009 when the appeal came up for hearing, J. A Mumuni Esq. the learned Director of Public Prosecutions Kwara State (herein after to be referred to as D.P.P) who appeared for the Appellants and T. O. S Gbadeyan Esq. (Mni) with him T. A. Giwa Esq. for the Respondents, adopted their respective briefs after minor corrections were made with leave in the Appellants’ Brief.

In the Briefs settled by J. A Mumuni Esq., the learned Director of Public Prosecutions and T. O. S Gbadeyan Esq. for the respective parties, three (3) Issues similarly couched were formulated for determination from the three Grounds of Appeal filed by the Appellants which are here under reproduced inter alia:-

“1. Whether the Appellants herein not being parties to Appeal No. CA/IL/67/2006

BETWEEN JOSHUA ABIODUN DADA V. ATTORNEY-GENERAL OF THE FEDERATION, are bound by the decisions contained therein (Ground 3 of the Grounds of Appeal).

“2. Whether in the light of evidence in the trial court, the learned trial Judge was right to have concluded that the dismissal of the Respondents from the service of Kwara State Civil Service was not in line with the Civil Service Rules (Relates to Ground 2).

“3. Whether the Respondents’ claim as constituted before the trial court was not statute barred. (Relates to Ground 1):’

Arguing Issue Number 1, the learned D.P.P. on behalf of the Appellants submitted that the Appellants not being parties to Appeal No. CA/IL/67/2006, BETWEEN JOSHUA ABIODUN DADA V. ATTORNEY – GENERAL OF THE FEDERATION, is not bound by the decision in that appeal. He recalled the chequered history of the case in question from its genesis at the Federal High Court where the Respondents joined the Appellants as parties along with the Attorney-General of the Federation but for reasons best known to the Respondents they applied that the names of the Appellants be struck out despite the vehement opposition by the Appellants to that effect and the prayer for the striking out of the names of the Appellants was eventually granted.

The learned counsel for the Appellants observed that the only action before the trial court was the interpretation of the judgment obtained from the above stated procedure and that the Respondents could not have sought for the trial court to enforce a judgment which was not against the Appellants, the said Appellants not being parties to the judgment, having not been given the opportunity of being heard and were completely excluded from the proceedings despite their protest, Citing the case of Kotoye v. CBN (1989) 1 N. W.L.R (pt. 98) 418 at 448; he contended that the procedure adopted by the trial court is a violation of principle of fair hearing as enshrined in section 36 (1) of the 1999 Constitution.

Alluding to reliefs 1, 2, 3, 4, and 5 as contained on page 11 of the Record of Proceedings, the learned D.P.P. further contended that they were all predicated on the judgment of this Honourable Court in Suit No. CA/IL/67/2006 to which they were not only denied their rights to be heard, but were totally foreclosed at the instance of the Respondents and the said reliefs were against the Attorney- General of the Federation alone. Unfortunately, the learned counsel noted, the court below granted all the reliefs sought by the Respondents against the Appellants who were not parties. Still on the principles of fair hearing and the making of orders against a non-party in a suit, he placed reliance on the cases of A.G. Lagos State v. A.G. Federation (2004) 18 N. W.L.R (pt. 904) 1 at 94 -95; Awoniyi v. Reg. Trustees of AMORC (2000) 10 N. W.L.R (pt. 676) 522 at 529 (S. C); to submit that the reliefs sought for by the Respondents before the Federal High Court as contained in page 100 of the Records reveal that no claim was made against the Appellants and it was not until after the Respondents had successfully claimed all their reliefs against the Attorney -General of the Federation in Suit NO. CA/IL/67/2006 that they thought it wise to raise other heads of reliefs against the Appellants who were not parties in the suit.

On the holding by the learned trial Judge at page 278 of the Records wherein he allegedly jettisoned the fundamental principle of justice by explaining away that he did not consider a deprivation of the Appellants right to be heard as a fundamental issue because the claim of the Respondents did not fall within the jurisdictional competence of the Federal High Court, the learned D.P.P. again argued that that was not enough reason for the denial of the Appellants’ right to be heard in a case, the result of which ought to have affected them. Reflecting further on the issue of the jurisdiction of the Federal High Court to entertain the suit against the Appellants, it was further asserted that in the peculiar circumstance of the case, since the Respondents main claim was against the Attorney-General of the Federation, nothing stopped the Respondents from seeking from the same court ancillary reliefs of the nature they have brought before the court below which would have enabled the Appellants to be opportuned to be heard.

Finally on this issue, the learned D.P.P on the authority of Obasanjo v. Buhari (2003) 17 N.W.L.R (pt. 850) 423 at 578; submitted that the proceedings of the court below was a nullity, having been conducted in violation of the principles of fair hearing by entering judgment against someone who would be affected directly by its decision but who was not made a party thereto.

In response to the Arguments proffered by the Learned Counsel for the Appellants, the learned counsel for the Respondents stated as follows:-

(a) That the decision of this Honourable Court in Exhibit JDA2 (Suit No. CA/IL/67/2006) Joshua Abiodun Dada v. Attorney General of the Federation is not the subject of any appeal to the Supreme Court and is therefore an extant judgment which cannot be disturbed as sought to be done by the Appellants herein.

(b) That the efficacy of Exhibit JDA2, a judgment of this Court, based on an alleged miscarriage of justice, cannot be questioned or made a whole sale issue before this Honourable as sought by the Appellants to be done as this would be contrary to the time honoured doctrine of stare decisis and functus officio which does not allow us to sit on appeal over our decision.

(c) That contrary to the position of the Appellants herein, the action was not instituted with any aim to execute the judgment of this Honourable Court in Exhibit JDA2 as the Judgment is against the Attorney General of the Federation and nobody else and directed at the Federal Government to pay Five Million Naira to each of the Respondents herein and finally declared the Respondents’ trial and convictions as unconstitutional, null and void.

Referring to their assertion in Exhibit JDA6 at pages 76 – 78 of the Records in reply to the Attorney-General’s letter, Exhibit JDA5 on pages 74 and 75, he noted that action, the subject – matter of this appeal is not meant to execute the earlier judgment of this Honourable Court in Exhibit JDA2 as the Court did not order for reinstatement of the Claimants to the service of the kwara State Government and/or payment of their unpaid salaries and emoluments and the judgment could not have affected the present Appellants.

According to the learned counsel for the Respondents, they brought an action against the Honourable Attorney General of the Federation and Appellants in the Federal High Court claiming for reinstatement and payment of unpaid salaries and emoluments which claims so thereon contract of employment between Kwara State Government and her employees of which the Federal High Court had no jurisdiction and to shut their eyes, this obvious situation by the confirmation of the case as wished by the Appellants against them, would have resulted in an exercise in futility and this necessitated their (Respondents) withdrawal of the case against the Appellants in the Federal High Court.

It was therefore submitted that Issue Number I as formulated by the Appellants is otiose, moot, hypothetical, academic and irrelevant as it was well treated by the trial court at pages 278/279 of its Judgment/Record of Proceedings, the findings thereof which he relied upon to urge us to uphold the decision of the trial Court in respect of this issue and resolve same in favour of the Respondents.

I have taken time to reproduce almost verbatim the submissions of the learned counsel for the contending parties on Issue Number I. In order to resolve this issue, it is only fit and proper to have a resume of the facts of this case as can be gathered from the Record of Proceedings and the Briefs of the respective parties.

The facts material to this Appeal are that the 1st to 11th Respondents were civil servants of pensionable cadre deployed to the Ministry of Finance while the 12th Respondent also of the same cadre was deployed in the Governor’s Office here in Ilorin, Kwara State prior to the 29th day of November, 1996. They were in their respective duty posts on the 29th of November, 1996, and were arrested by a detachment of Military Intelligence Officers from the Sobi Military Barracks, Ilorin and interrogated concerning a perceived fraudulent conversion of the Federal Government grant for Military and Civilian Pensioners. Even though at the end of the exercise, the Military gave a report exonerating all the Respondents and subsequently released them on bail to be reporting only at the verification office opposite the Kwara State Government House daily, the said Report did not go down well with some of the verification officers who were intent on wreaking havoc on the Respondents.

Accordingly, contrary to the Civil Service Rules and Regulations governing the Respondents’ contract of employment the Respondents were arrested, incarcerated and tortured by the Military Officers at the Sobi Barracks, Ilorin but neither the Respondent’s Director – General nor the Commissioners for Finance could utter any word in defence of the said Respondents, or challenging the Military Officers for what they had done to the Respondents.

After about five months of the Respondents unjustified arrest incarceration and torture, a formal charge was preferred against them on the 4th day of March, 1997 (see Exhibit A at page 208 of the Record of Proceedings), and they were subsequently arraigned before His Lordship, Hon. Justice Ahmed Belgore, Chairman of the Miscellaneous Offences Tribunal, Abuja Zone, then Holden at Ilorin.

The trial lasted for fourteen (14) months during which the Respondents were still incarcerated against the provisions of The Advanced Fee Fraud and other Fraud Related Offences Decree, 1995 under which the Respondents were charged with “Conspiracy to defraud and actually defrauding the Federal Republic of Nigeria to the tune of N72, 000.00 (Seventy-Two Million Naira) contrary to section 8 (a) and 1(1) and (2)” and punishable under Sections 8 and 1(3) of the Decree.

In the course of the trial according to the Respondents’ affidavit in support of the Originating sermons in suit No. FHC/IL/CS/1/2001 (page 204 – 207), one Mr. Dauda Lawal the then Accountant-General of Kwara State, the Head of Treasury Division of the Department under which the 1st – 11th Respondents then worked, testified on Oath that no money whatsoever, either belonging to the Federal Government or Kwara State Government and over which he was entrusted, was lost through the Respondents and so no conspiracy to defraud the Federal Government or anybody was committed.

For so testifying in favour of the Respondents, the Accountant-General was suspended forthwith the next day by the then Military Governor of Kwara State, Colonel Peter Ogar and later sent on compulsory retirement because the said Accountant-General under the Financial Instructions of Kwara State was the only person capable of declaring authoritatively that there was any financial misappropriation or loss from the treasury of the State.

Also, the sum of N72 Million allegedly misappropriated, could not have come to the State except authorisations for such monies were collected by the Accountant-General in person at the monthly Federation Accounts meetings and the said Kwara State Accountant-General (Mr. Dauda Lawal) denied receiving such authorizations and confirmed that no money was appropriated or swindled in his Department. To this effect the Accountant-General tendered documents emanating from the Federal Accountant-General’s Office amongst others to demonstrate that no money was lost.

On Monday the 11th day of May, 1998, the Tribunal Chairman reserved judgment till 20th May, 1998 because of the absence of vital witnesses which according to the Chairman did not help the Tribunal to probe the root of the case and determine the culpability of the Respondents. (See Exhibit B at page 212 of the Record of Proceedings). Notwithstanding the absence of the said vital witnesses, the Tribunal delivered the judgment on Wednesday May, 27, 1998 sentencing each of the Respondents to three years imprisonment except two of them who bugged two years imprisonment each. See Exhibit C at page 213 of the Record of Proceedings and also Exhibit MOJ B5Q at page 240 of the Records – the Conviction Order of the Tribunal.

Based on the conviction of the Respondents and the issuance of the warrant, the Respondents were all detained pending confirmation by the then Head of the Federal Military Government of Nigeria. The Respondents were not availed the copy(ies) of the judgment of the tribunal throughout their stay in prison and up to May 29, 1999, when the current democratic Government took over the mantle of governance and no confirmation was given to the conviction of the Respondents.

Indeed upon being released from prison of the service of their various terms, they kept on making futile attempts for procurement of the Record of Proceedings of the

Tribunal which was never availed them and as such the legal firm of Deji Gbadeyan & Co. who were briefed to file an appeal on behalf of the Respondents could not do so until the 6th day of September, 1999, when the said firm of solicitors, wrote a letter to the Attorney-General of Kwara State for the judgment. The said letter is Exhibit D as contained in page 214 of the Record of proceedings and a reply to the letter from the Learned Attorney- General is also marked Exhibit Eat page 215 of the Records.

Meanwhile following the conviction of the Respondents, the Kwara State Government wrote letter of dismissals which according to the Learned Counsel for the Respondents at page 4 paragraphs 2.02 of the Respondents Brief, were “Meant to be served on each of the Respondents but only the 12th Respondents (Rotimi Oladipo) was successful served.” The said letter was tendered in the Lower Court as Exhibit JDA1.

Subsequently, the Respondents instituted the action in the Federal High Court, Ilorin Division in suit Number FHC/IL/CS/1/2001, challenging the validity and constitutionality of the trial and eventual conviction and sentences imposed on them by the Miscellaneous Offences Tribunal, Abuja Zone, holding at ilorin which action the Federal High Court dismissed and on appe1alto this court in Appeal No. CA/IL/67/2006 between Joshua Abiodun Dada v. Attorney-General of the Federal, the entire proceedings and convictions the respondents were d1c1ared null, void and of no effect. See exhibit JDA2 a copy of the said Judgment at page 11 thereof.

On the 11th day of July, 2007, following the question of the conviction of the Respondents by this court, the Respondents by Exhibit JDA3 and JDA4, wrote to the Kwara State Commission demanding for their reinstatement back to the service of the Kwara State Government which letter the Commission discountenanced but the Attorney-General of the State replied by Exhibit JDA5 as can be seen at pages 70-75 of the Records.

Counsel to the Respondents T. O. S. Gbadeyan (Mni) replied to the learned Attorney-General’s letter by Exhibit JDA6 demanding for a reply from the Civil Service Commission but the Civil Service Commission refused to oblige the Respondents their reinstatement thus culminating in the suit which is now the subject of this appeal.

Now, from the facts as elicited above and the submissions of counsel on both sides, it is clear that following the conviction of the Respondents by the Miscellaneous Offences Tribunal in 1998, the said Respondents were dismissed from the service of the Kwara State Government and having successfully challenged the entire proceedings of the Tribunal and their eventual conviction here in this court which set aside the judgment of the Federal High Court dismissing the suit, the natural and legal consequences should be the reinstatement of the Respondents without much ado.

The learned trial judge aptly captured the basic position of the law as decided by this court and in particular the apex court in matters of this nature when he held that:-

“Declaring the dismissal null and void means the parties are back to the status quo and automatic reinstatement.”

See Iderima v. Rivers state Civil Service Commission (2005) ALL F.W.L.R (pt. 285) 431 per Edozie J.S.C at 452; shitta-Bey v. the Federal Public Service Commission (1981) 1 S.C 26 (Reprint) NEPA v. Ango (2001) 17 W.R.N 142; Okoroafor v. Minister of Internal Affairs & 4 Ors (2004) ALL F.W.L.R (pt. 209) 1108 and Dr. Tunde Samigboye v. University of Ilorin & Anor (2001) F.W.L.R (pt. 32) at 23.

Notwithstanding the decisions in the above cases, the learned Director of Public Prosecutions contends that they were not parties either to the suit in the Federal High Court and the Court of Appeal so as to be bound by the Appellate decision of the court of Appeal setting aside the conviction of the Respondents which decision has given rise to the suit in the High Court of Kwara State, the subject of the present appeal.

This is the more so as the Appellants were initially sued along with the Federal Attorney-General but for reasons which have been given by the Respondents’ counsel in paragraphs 4.03 and 4.04 of their brief and the judgment of the lower court at pages 278/279; the Respondents withdrew against the Appellants.

Basically, the Respondents and the court’s positions are anchored on the fact that the Federal High Court had no jurisdiction to entertain the issue of reinstatement and payment of the Respondents unpaid salaries and emoluments which are matters within the purview of the contract of employment between of Kwara State Government and its employees.

According to the learned counsel for the Respondents, the court below could not have closed its eyes to the “statutorily imposed jurisdictional limit of the Federal High Court to hear and determine the issue of reinstatement and payment of their unpaid salaries and emolument between the Respondents and the Appellants herein at the Federal High Court.”

Confronted with the above scenario, the learned trial Judge took the view that:-

“On the issue of jurisdiction the Federal High Court could not have entertained that aspect of the suit affecting these defendants the claimants are employees of the Kwara State Government and any dispute arising between them cannot be settled by the Federal High Court. The State High Court has exclusive jurisdiction to entertain the matter. Also the Miscellaneous Offences Tribunal is a creation of the Federal Government. The 1st defendant in that case too, that is the Attorney-General of the Federation is an agent of the Federal Government so he can only be sued at the Federal High Court.”

On the contention by the Appellants as they have here done citing Kotoye v. CBN. (1989) 1 N.W.L.R (pt. 98) 418 at 448; A.G Lagos State v. A-G Federation (Supra), Awoniyi v. Reg. Trustees of Amore (Supra) that they were denied fair hearing, the learned trial Judge continued in his judgment thus;-

“In the light of this I do not consider the withdrawal or discontinuance of the case against the 2nd and 3rd defendants at the Federal High Court as a denial of fair hearing”

On the complaint by the Appellants that they were excluded from participating in the proceedings even after they had vehemently opposed their being excluded, the learned trial judge further asserted;-

“They could not have participated at the Court of Appeal level and the judgment obtained at the Court of Appeal was a declaration that the judgment of the Tribunal was unconstitutional and compensation of N5, 000, 000.00 each which the Court of Appeal awarded to the chairman for their unlawful detention and imprisonment was against the Attorney-General of the Federation.”

Commenting on the submission by the learned D.P.P that the only action before the trial court which is now the subject of this appeal was the interpretation of the judgment obtained in proceedings wherein they were no parties having been so excluded against their wish and judgment was given in that case not against them but against the Federal Attorney-General but which judgment the respondents now seek through their action in the lower court to enforce against them (Appellants); the learned trial Judge thus recalled the submissions of learned counsel for the Respondents which has been replicated in page 8 paragraph 4.02 that the action now on appeal was not meant to execute the judgment of the Court of Appeal as the said judgment (Exhibit JDA2) is against Attorney -General of the Federation alone and for the Federal Government to pay the Respondents Five Million Naira

(N5, 000, 000.00) each their trial and convictions having been quashed and declared null, void and unconstitutional.

Moreover, the judgment did not order for the reinstatement of the Respondents to the service of the Kwara state government or for the payment of the arrears of their unpaid salaries and emoluments. His lordship made very pertinent findings which to my mind savours of sound logic when he posited at page 278 line 37 to lines 1- 2 at page 279 inter alia:-

“I also hold that this Suit is not meant to execute the Court of Appeal judgment against the Defendants because they are not parties in that case neither were they parties in the case at the Miscellaneous Offences tribunal before they (sic) base, the dismissal of the Claimants on the conviction of the Claimants by that Tribunal. The parties before the Tribunal (sic) are FEDERAL REPUBLIC OF NIGERIA VS. ALHAJI SULAIMAN AROWOSAYE & OTHERS.

I refer to Exhibit MOJ5 a letter from the Minister of Finance addressed to the Secretary to the State Government, Military Administrator’s Office, Ilorin dated 14th August, 1998 which is headed:-

DISCIPLINARY ACTION AGAINST THE GOVERNMENT OFFICIAL CONVICTED BY THE MISCELLANEOUS OFFENCES TRIBUNAL.”

If the Defendants based the disciplinary action against the Claimants on the conviction by the Tribunal without being parties in the case, why should they complain of not being made a party to the redress they needed on the verdict of the Tribunal? The Claimants have gotten the redress they needed on the verdict of the Tribunal and they have came home to address the issue of their employment with their employer based on the declaration made on the judgment upon which they were dismissed or suspended. ”

From the holdings of the Court and the submissions of the learned counsel for both the Appellants and the Respondents some crucial sub-issues appear to have been thrown up which are:-

1. Whether the Federal High Court had jurisdiction to entertain a suit seeking for the reinstatement of civil servants dismissed from the service of the kwara state Government on grounds of conviction by the Miscellaneous Offences Tribunal in a case in which the Federal Government was so to say the Complainant?
2. Should the Kwara State Civil Service Commission, Attorney-General of Kwara

State and the Governor of Kwara State, have been joined or having been so joined were the Respondents and indeed the court right to have discontinued against the said parties and struck out the names of the present Appellants even when they insisted on being joined?

3. Having not been joined in the Federal High Court, and subsequently in the Court of Appeal which judgment led to the setting aside of the trial and conviction of the Respondents and their subsequent suit which is the subject of this appeal, can the Appellants be bound by the outcome of the said proceedings without being heard?

On the first issue of jurisdiction, Sections 251 and 272 of the 1999 Constitution of the Federal Republic of Nigeria provide for the jurisdiction of the Federal High Court and the High Court of a State.

To be precise, Section 251 (1) states that:-

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters ….” relating to the items mentioned in sub-paragraphs (a) to (s).

As for Section 272 (1), it categorically states thus:-

“Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment, or other liability, in respect of an offence committed by any person.”

The provisions of sections 251 and 272 of the Constitution begin with “Notwithstanding anything to the contrary contained in the Constitution” and “subject to the provisions of section 251 and other provisions of this Constitution” respectively which clauses were pronounced upon by this Court in Ayeni v. Unilorin (2000) 2 N.W.L.R 290 at 302 while interpreting Section 230 (1) and 236 of the 1979 Constitution which were in pari materia with sections 251 (1) and 272 (1) of the 1999 Constitution and it was held that when read together, the provisions of section 251 shall prevail over 272 should there be a conflict and the state High Courts would no longer have jurisdiction to hear and determine any civil causes or matters itemized under Section 251 (a -s) of the 1999 Constitution.

In the celebrated case of NDIC v. OKEM ENTERPRISES LTD. (2004) 10 N.W.L.R (pt. 880) 107 at 182 -183, the Supreme Court held that the provisions of section 251 (1) of the 1999 Constitution renders the Federal High Court a sovereign in its own sphere as its exclusive jurisdiction restricts, limits governs and prevails over the jurisdiction conferred on the State High Court. See per Uwaifo J.S.C. who posited thus:-

“In regard to section 272 of the Constitution, section 251 is directly relevant in that the former is made subject to it. The expression “Subject to” means liable, subordinate, subservient, or inferior to, govern or affected by, provided that or provided, answerable for. See Blacks Law Dictionary; 6th Edition, page 1425.”

Now the contention of the learned counsel for the Respondents nay the Court below on the exclusion of the Appellants from the proceedings of the Federal High Court was/is that the Attorney- General who was sued by the Respondents in the suit culminating in the appeal which quashed the respondents’ conviction, was an agent of the Federal Government and that the Respondents could not have brought an action against the Appellants herein who are Kwara State Civil Service Commission, the Attorney – General of Kwara State, and the Governor of Kwara State for their (Respondents’) reinstatement following their dismissal by Appellants from the Civil Service of kwara State.

I am of the candid view that the contention of the learned counsel for the Respondents and the learned trial Judge’s findings at pages 278/279 are well grounded in view of the provisions of Section 251 of the Constitution. More particularly, Section 251 (1) (p) and (r) are very instructive that the Federal High Court shall have exclusive jurisdiction in matters pertaining “to the management and control of the Federal Government or any of its agencies” and “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

By the above provisions since the Attorney – General of the Federation who was sued in the Federal High Court is an agent of the Federal Government which the Kwara State Civil Service Commission, the Attorney – General and the Governor of Kwara State are not, the Federal High Court had exclusive jurisdiction to hear the matter while the State High Court had exclusive jurisdiction to hear the claim for reinstatement, arrears of unpaid salaries and emoluments against the Appellants.

Tobi, J.S.C in NEPA v. EDEGBENRO (2003) F.W.L.R (Pt. 139) 1556 at 1573 -1574, laid down the guidelines for ascertaining when the Federal High Court has exclusive jurisdiction under Section 230 (1) (p), (q), (r), and (s) [now S. 251 (1) (p), (q), (r), and (s)] when he posited that in construing the sections, two salient factors are relevant – the parties and the subject – matter of the litigation and that the first factor is not difficult to discern but the second is rather difficult to identify. His lordship however, pointed out that the Federal High Court would have exclusive jurisdiction when the subject matter is a civil matter emanating from the administration, management and control of the Federal Government or any of its agencies. It must also entail any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative or decision by the Federal Government or any of its agencies. See Adegbite v. NEPA (1995) 12 N.W.L.R (pt. 577) 219.

Indeed the eminent and erudite law ford further illuminated the foggy crevices of the determination of this vexed issue when he succinctly posited quite admirably inter alia:-

“Administration is a large term in business and commerce, so too is management.

Etymologically, the words are synonymous in our context. Administration is the management or direction of affairs of a business. Management is the art or practice of management, especially a business. Both words have business as a common denominator. Entering into a contract of employment is a business relationship which clearly, comes within section 230 (1) (q) of the 1979 Constitution”, (now

Section 251 (q) of the 1999 Constitution.

See Ikongbe J.C.A of blessed memory in Professor Oba Abdulraheem & 3 Ors v.

Professor S. O. Oduleye & 5 Ors (2005) s N.W.L.R (pt. 926) 244 and the dicta of Uwais C.J.N and Ogundare J.S.C in the Edegbenro case supra at page 1571 paras F and H where Ogundare, J.S.C, specifically held that a careful reading of paragraphs (q) (r) and (s) of section 251 (1) of the 1999 Constitution, (then section 230 (1) (q) (r) and (s) of the 1979 Constitution), would reveal that the intention of the law makers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. He explained that while paragraph (s) talked of actions for declaration or injunction, the proviso extended this to actions for damages, injunction or specific performance but did not say as the learned trial Judge in the case in question had read into the proviso that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court.

What emerges from the principles enunciated by the cases cited is that since the claim in reinstatement related to the employment of the Respondents by the Kwara state Civil service, only the Kwara State High Court had exclusive jurisdiction to entertain same, the Respondents not being agents of the Federal Government which the Federal Attorney-General is or was in the circumstances of the case in question.

The submissions of the learned D.P.P that since the Respondents’ main claim was against the Attorney -General of the Federation, nothing stopped them from seeking from the same court ancillary reliefs of the nature they had brought to the High Court of kwara State to enable the Appellants be afforded the opportunity of being heard, is therefore an invitation to the Respondents nay the Federal High Court to expand the jurisdiction of the said court which they can ill afford to do.

As one of our legendary emeriti oracles of the Supreme Court had aptly put it:-

“The quarrel over jurisdiction of courts is by no means new but these quarrels have left certain significant beacons of light to guide the courts when dealing with jurisdiction or lack of it:-

(i) Judges ought not to encroach or enlarge their jurisdiction because by so doing, the court would be usurping the functions of the legislature – per Holt C.J. in Ashby v. Whyte (1703) Lord Ryan 938;

(ii) Nothing shall be intended to be out of the jurisdiction of the Superior courts but that which specifically appears to be so; Peacock v. Bell & Kendall (1667) 1;

(iii) Although the court has great powers yet these powers are not unlimited. They are bound by some lines of demarcation – Abbot, C. J, The King v. Justices of Devon (1819) 1 CHIT REP.37. Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it;

(iv) The court is not hungry for jurisdiction – Sir William Scott; The Two friends (1799) I. C. Rob. AD. Rep. 280;

(v) Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expand it. Per Kekewich, J. in Re Montagu (1897) L. R ICO (1997);

(vi) A court cannot give itself jurisdiction by misconstruing the statute. Per Pollock, B. Queen v. County Court of Lincolnshire and Dickson (1897) LG(NS) 57 QBD 137; per Oputa J.S.C in African Newspapers of Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 N.W.L.R (pt. 6) 137.

The above analyses put to rest the issue of jurisdiction as canvassed by the parties.

Next to the crucial issue of jurisdiction is the question as to whether the Appellants ought to have been joined and having been so joined in the Federal High Court, whether the Respondents were right to have withdrawn against them thereby warranting the court to strike out the Appellants’ names from the Suit inspite of their insistence to be joined.

The answer can be found in the provisions of Order 12 of the Federal High Court

(Civil Procedure) Rules, 2000. Rule 3 thereof which is material to our case herein states thus:-

“3. All persons may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendments”

By Order 12 Rule 5 (1):-

“If it appears to the Court at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either Plaintiffs or Defendants in the suit as the case may be”.

Under Rule 5 (3):- “The court may, at any stage of the proceedings and on such terms as appear to the court to be just, order that the names of any party or parties whether as plaintiffs or defendants, improperly joined, be struck out”

The provisions of these rules which deal with joinder or misjoinder of parties to a suit are very clear. In the case in question, the Claimants (now Respondents) sued the Federal Attorney -General challenging their arrest, incarceration, torture and eventual trial and conviction which necessitated their dismissal by the Kwara State Government from the Civil Service of the State. They also sued for reinstatement and payment of their arrears of unpaid salaries and emoluments and joined the present Appellants initially albeit erroneously.

In line with the provisions of Rule 5 (3) of the Federal High Court (Civil Procedure) Rules, which has been cited earlier, the court (Federal High Court Ilorin Division) before which the suit was pending struck out the names of the Appellants for mis-joinder despite the vehement protests of the Appellants who thought rightly or wrongly that they had been deprived of their right to fair hearing.

The philosophy behind the provisions of Order 12 of the Federal High Court (Civil

Procedure) Rules, 2000, can be gleaned from the operative words of Rules 3 and 5 (1) thereof which are that all persons may be joined as Defendants “against wham the right to any relief is alleged to exist” and “all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, who may be likely to be affected by the result,” of the litigation ought to be joined either as Plaintiff(s) or Defendant(s.)

The provisions of these Rules are replicated in almost all previous and extant High Court Rules in this country as they derive their origin from the English Rules of the Supreme Court 1960. See Order 16 Rule 11 R. S. C. 1960 which is in pari materia with Order 12 Rules 3 and 5 (1) and was interpreted by Ruckley J. in McCheane v. Gyles (No.2) (1902) 1 Ch.D. 911 at page 917 thus:-

“Looking at the rule, you must in order to say that a person who is not a party ought to be added, find either that he ought to have been joined, or that his presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”

Generally speaking, where a person(s) complains of non- joinder as the Appellants seem to be doing, the only reason why he should be joined is that he is a necessary party who should be bound by the result of the action and the crucial question to be determined as to whether he is a necessary party is whether the issue(s) in the action cannot be effectually and completely settled unless he is a party: See Oriare v. Govt. of Western Nigeria (1972) 1 ALL N.L.R 138; Uku & Ors v. Okumagba & Ors (1986) 3 S.C. 431 and Alhaji Raji Oduola & Ors v. Coker (1981) 3 S.C197.

In the celebrated case of Peenock Investment Ltd. v Hotel Presidential Ltd. (1982) 12 S.C 1 at 52; the learned law lord Idigbe J.S.C of blessed memory, posed the question as to whether Plaintiffs should have joined the Rivers State Government in order for the suit to effectually and completely settle all the questions in controversy. See also Oputa J. (as he then was) in Edward Egonu & 3 Ors v. Eziamaka Egonu & Anor (1973) 3 E.C.L.R 664 at 667 where he posited rightly in my view that, the rules as to joinder of parties do not intend and are not intended to add more Defendants to an existing suit just for the convenience of the Defendants on record. See further Norris v. Beasley (1874) – (1880) ALL E.R (Reprints) 774 where it was held that the rules were not intended to add a Defendant who had no interest in the action but that “all persons who may be entitled to or who claim some share or interest in the subject matter of the Suit or who may be likely to be affected by the result”, the court can join either suo moto or on application by either party.

Where however, the presence of such a person is not necessary for the court’s adjudication, the Plaintiff as in our instant case, can apply under Rule 5 (3) for the name of the defendant(s) to be struck out. Following the authorities above cited, the crucial question in this appeal is whether the Appellants then joined in the Federal High Court were necessary parties so as to be joined in the proceedings. Put differently, could the Federal High Court have determined the issue of conviction of the Respondents by the Miscellaneous Offences Tribunal effectually and completely without the joinder of the Appellants, taking into consideration the fact that the claim for reinstatement and arrears of salaries and emoluments which would have affected the interest of the Appellants, was circumscribed by the jurisdictional limitations imposed by the Constitution and Statute on the Federal High Court?

The answer to my mind is in the affirmative in view of the admission by the parties that the Appellants were neither complainant in the Miscellaneous Offences Tribunal nor were they parties at the Court of Appeal in Suit No. CA/IL/67/2006. The Appellants accordingly were not bound by the reliefs sought in that court which were against the Federal Government and infact no order was made against the Appellants and as such the Federal High Court was right to have excluded them as the case before it could be effectually and completely determined and indeed had been determined without the Appellants thereat.

The exclusion of the Appellants however, does not preclude them from enforcing the judgment of the Court of Appeal nay the Federal High Court in view of the provisions of section 287 (2) and (3) of the 1999 Constitution to the effect inter alia that: – “The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons …. It is submitted with the greatest respect that the Appellants are Governmental authorities who should abide by the provisions of the Constitution above cited on the enforcement of the judgment of the Court of Appeal more so as they purported to dismiss the Respondents from the service of the Government of Kwara state upon their conviction by the Miscellaneous Offences Tribunal. Thus, they cannot pick and choose which court order to obey and enforce as they are purporting to do. See also section 6 (6) (a) and (b) of the 1999 Constitution.

Finally, on the issue of fair hearing as canvassed by the learned D.P.P, I am not oblivious of the decisions in Kotoye v. CBN, AG. Lagos State v. AG. Federation; Awoniyi v. Reg. Trustees of AMORC; and Buhari v. Obasanjo (2003) 17 N.W.L.R (pt. 850) 423 at 578 etc cited by the learned counsel which cases may have been decided on their peculiar facts and circumstances and on sound principles. However, in our instant appeal, the issue of fair hearing did not arise and even if the Appellants had any interest in the case at the Federal High Court and Court of Appeal as they alleged in paragraph 2.00 of their Reply Brief that it was wrong for the Respondents to assert in their Brief that they (the Appellants) were not parties at the Miscellaneous Offences Tribunal; as according to the Appellants, it is apparent from the Records that the prosecutor was the Director of Public Prosecutions from Kwara State and the witnesses were all from the Treasury Division of the State; where the Appellants were excluded in accordance with the Constitutional limitation of the Court’s jurisdiction and the rules of Court, the question of fair hearing does not arise.

It is immaterial therefore that the Appellants were either witnesses or prosecutors. They have not told the court that they were Complainants in the case and indeed they have conceded in the said paragraph 2.00 of their Reply Brief that the charge against the Respondents was a Federal charge and that the money allegedly embezzled by the Respondents was a Federal Grant for the pensioners from Kwara State. To demonstrate that the amount allegedly embezzled belonged to the Federal Government who was the Complainant, the charge at the Tribunal was made in the name of the Federal Attorney-General who was a Federal public officer as against the Appellants who are State public agency and officers. Most especially, the Tribunal was a Federal Tribunal whose jurisdiction has now been inherited by the Federal High Court.

As I had held earlier, sections 251 (1) (p), (q), (r) and (s) are meant to place a judicial control of the Federal Government under the Federal High Court. In Akegbejo v. Ataga (1998) 1 N.W.L.R 459, section 230 (1) (q) and (s) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 which was in pari materia with section 251 (1) (p) and (s) of the 1999 Constitution, this court held that where Federal public officers are sued in their official capacities, the matter is within the exclusive jurisdiction of the Federal High Court. See also Onyenucheya v. Mil. Administrator Imo State (1997) 1 N.W.L.R 429; and University of Abuja v. Ologe (1996) 4 N.W.L.R 706.

I therefore agree with the holding of the learned trial Judge and the submissions of learned counsel for the Respondents that the suit at the said court was not meant to execute the judgment of the Court of Appeal but that since the Appellants based their dismissal of the Respondents from service on their conviction by the Miscellaneous Offences Tribunal, once the Tribunal’s decision was set aside by the Court of Appeal and the said Court of Appeal judgment has not been appealed against, that judgment is subsisting and ought to be obeyed and enforced in accordance with sections 6 (6) (a) and (b) and in particular section 287 (2) of the 1999 Constitution.

In conclusion, I hold that there was no violation of the audi alteram partem rule and neither the Federal High Court nor the Court of Appeal in Suit Nos. FHC/IL/CS/1/2001 and CA/IL/67/2006 ever gave judgment against the Appellants without hearing them so as to have breached the provisions of Section 36(1) of the 1999 Constitution of Federal Republic of Nigeria.

Issue Number ONE is therefore resolved in favour of the Respondents.

Issue Number 2:- “Whether in the light of the evidence before the trial court, the learned trial Judge was right to have concluded that the dismissal of the respondents from the Kwara State Civil Service was not in line with the Civil Service Rules?”

On this issue, the learned D.P.P. urged the court to answer the question posed in the negative, submitting with reference to the holding of the learned trial judge at page 283 of the Record of Proceedings that the conclusion of the learned trial Judge that the dismissal of the Respondents was unlawful, cannot stand. Placing reliance on the cases of Ibama v. SPDC NIG. Ltd. (2005) 17 N.W.L.R (Pt. 964) 304 at 378-379 and Nigeria Gas. Co. Ltd. v. Dudusola (2005) 18 NWLR (pt. 957) 292 at 318, he contended that an employee alleging wrongful termination of his employment as in the instant case, has the onus to establish certain legal prerequisites to entitle him to judgment, but the Respondents neither disclosed nor complied with these legal requirements from a perusal of the affidavit in support of the Originating Summons as they neither pleaded nor led evidence on their terms of employment.

According to the learned D.P.P. the two exhibits at pages 8 & 9 of the records were in respect of Mr. M. O. Oladipo who is not listed as a Respondent before the court ditto the letter of dismissal addressed to the said Mr. Oladipo and there is no nexus between these exhibits. He maintained still on the authority of Nigeria Gas Co. Ltd. v. Dudusola (supra) that it is not the duty of the Appellants herein as employers to prove any breach of contract of employment in an action of this nature, having been sued as Defendants.

It was further submitted by the learned Director that there was no evidence as to the nature and terms of employment of the Respondents before the court granted Relief 1 (One) of the Respondents prayers and that even if the 12th Claimant Rotimi Oladipo was the same as Mr. Michael Oladipo whose documents were attached as exhibits before the trial court, those exhibits cannot avail the other Respondents in proof of the most rudimentary element of their case before the court. The learned D.P.P. submitted further that a court cannot form a legal opinion merely on speculation as the lower court did on the issue of improper procedure in the dismissal of the Respondents when there was no evidence of the Respondent’s status as civil servants.

He also alluded to the fact that the facts in Appeal No. CA/IL/67/2006 are entirely different from the issues before the trial court which follows that the Respondents ought to place all materials before the trial court to give effect to judgment upon which the Appellants were not a party and where in the issues raised therein are entirely different.

It was the learned D.P.P.’s final submission on this issue that the failure of the Respondents to place sufficient materials before the court on the nature of their employment was a grave error which the trial court failed to appreciate.

He therefore urged this court to resolve the issue in favour of the Appellants.

In response to the argument of the Appellants on this issue, Learned counsel to the Respondents countered that the issue of not placing before the trial court evidence as to the nature of employment and status of the Respondents is being raised for the first time in this court as the nature of the Respondent employment was never disputed at the trial court.

As the regards the contention that no evidence was given at the trial court, Learned Counsel for the Respondents pointed to the affidavit in support of the Originating Summons at pages 169/170 of the records which evidence according to him was neither challenged nor controverted and was therefore deemed admitted. Honda Place Ltd. v. Globe Motors Holding (Nig) Ltd. (2005) 7 S.C. 182 at 189 and 190; and Haston (Nig.) Ltd. v. A.B.C. PLC. v. Aisowieren (2002) FWHL (pt. 116) 959 at 990 were cited in support of the above submission.

Still on the evidence in support of the status of the Respondents, particular references were made to paragraphs 5 and 6 of the Further And Better Affidavit in support of the Originating Summons which warranted the holding of the Court at pages 281/282 of the Records and subsequently at page 284, to submit that the Position of law is that an Appellate court cannot entertain a fresh point of law which did not arise before the lower court except by leave of court. Ojeme v. Punch (Nig.) Ltd. (1996) N.W.L.R (pt. 427) 701 at 703 and Ndukwe v. Barone; (1994) a N.W.L.R (pt. 367) 241 at 246 were cited in support of the above submission and to contend that the only application filed by the Appellant before this court was a motion for leave to amend their notice of Appeal and to deem their said Awarded Notice as duly filed and served which application was granted on the 23rd October, 2008.

There being no grant of leave to the Appellant to raise and argue the fresh point contained in Ground 2 of the Appellants Grounds of Appeal, and their submissions in support of issue Number 2 of their Brief, Learned Counsel for the Respondents insisted that the leave to file additional Grounds cannot extend to argument of new points. Umeji v A.G. Imo State (1995) 4 N.W.L.R (pt. 391) 552 at 564 Kaigama v. Namnai (1996) 4 N.W.L.R (pt. 441) 162 at 164 referred.

Finally on this issue the Learned Counsel for the Respondents, urged us to hold that the issue is incompetent and since the Appellant cannot be allowed to raise the said issue at this stage without leave of this honourable court, the Appellant submissions should be discountenance and Ground 2 of the Amended Notice of Appeal should be struck out along with the issue formulated there from.

The cases of Ofelete v The State (2002) S.C. (Pt. 80) at 83 and Lebile v. Registered

Trustees of c 7 5 (2003) (S.C. Pt. 1) 25 at 32/33 were cited as authorities for the above submission.

I have taken a cursory look at the submissions of counsel on the issue and I shall begin its resolution with the submissions of the Learned Counsel for the Respondents which is an objection as to the competence of issue Number 2 of Appellants Brief.

The law is settled that a new point of law will not be allowed on appeal for the first time without leave of court. Even if such a point of law is raised with leave, the Appellate court will refuse to entertain such a point particularly where it would tantamount to affording the Appellant an opportunity of arguing a case inconsistent with or contradictory to the case previously argued at the trial court. See Uor v. Loko (1988) 2 N.W.L.R 430; Mogaji & Ors V. Cadbury Nig. Ltd. and Ors. (1985) 7 S.C. 59 at 88; Dweye v Iyomahan (1983) 8 S.C 76 and Okenwa 64 v Military Governor (1996) 6 S.C.N.J. 221, at 232.

In order to determine the question as to whether the issue of the nature of employment of the Respondents, their status and terms and the nature of breach of the terms arose in the trial court, a look at the Record of Proceedings is necessary.

At page 201, lines 21-32 of the Record of Proceedings, the Learned Attorney General in his submission on issue Number 3 at the lower court which posed the question as to whether the claimants’ dismissal from the services of the defendants was justifiable or not – a question akin to issue Number 2 as formulated herein – he submitted as follows:-

“Submit that when an employee complains that his employment has been wrongfully terminated or that he was wrongfully dismissed, he has the burden of placing before the court not only the terms or conditions of his employment but the manner in which the terms or conditions were breached by the employer. See Okaebor v. Police Council (2003) 5 S.C.N.J 55. The claimants ought to have vented this case of whether their dismissal was wrongful or not at their earlier opportunity at the Federal High Court.”

On the part of the claimants issue Number One (1) formulated by them also posed the question as to whether the purported dismissal of all the claimants from the service of Kwara State Government based on their convictions by the Miscellaneous Offences Tribunal was still justifiable following the nullification, invalidation and the declaration by the court of Appeal in Suit No. CA/IL/67/2006.

In the argument in support of that issue the learned counsel posed the question as to whether the 1st – 12th Claimants’ contract of employment was one with statutory flavour. The Learned Counsel after citing the dictum of Karibi-Whyte J.S.C. in Imaloame v. WAEC (1992) 9 N. W.L.R (Pt. 265) at 303 submitted that the master and servant relationship was premised on the application of the Civil Service Rules; and that going by The Supreme Court decision in Iderima v. Rivers State Civil Service Commission, (2005) 7 S.C. (Pt. II) 135, the contract of service with the Kwara State Government was one with statutory flavour. The reason advanced there for was that the dismissal letter served on the other claimant was purportedly made pursuant to Rules 04201 and 05110 of the Kwara State Civil Service Rules.

From the foregoing, the contention of the learned counsel for the Respondents that the issue of the status of the Respondents, the nature of their employment and the manner of breach is a fresh issue in this court that would need the leave of the court to argue is therefore unfounded.

In Comptroller of Nigeria Prisons v. Adekanye (2002) 7 S.C. (Pt. II) 188 at 206,

Ejiwunmi J.S.C. of blessed memory had course to state the position of the law on issues for determination by an Appellate Court as follows:-

“It is settled law that the Court of Appeal being an Appellate Court can only consider issues based on grounds of appeal filed before it. It has been said that the rationale for this is that a trial Court is generally required to make primary findings of fact and to express its opinion on the law in regard to the findings. The Appellate court relies on the opinion of the court below for its determination of the appeal before it. The jurisdiction of the Appellate court is essentially confined to the correction of the errors of the court from which it hears appeals. It can only do so, naturally, where the points argued before it consist of allegation of errors made by that court and not on matters not canvassed before it. See Bankale v. Pelu (1991) 8 N.W.L.R (Pt. 211) 523 at 547 per Karibi – Whyte, JSC, relying on United Marketing Co V. Kora (1963) 2 All E. R. 553.”

The fact that the issue in contention arose at the court of first instance is informed by the holding of the learned trial Judge at pages 281, 282 and 284 of the Record of Proceedings that the defendants are not contending the fact that the Claimants’ employment is statutories clothed or garnished with statutory flavour, in which case they cannot be properly or legally removed until the Civil Service Rules are strictly complied with.

Again, even the Claimants themselves raised the issue of the status of the claimants in paragraphs 5 & 6 of the Further and Better Affidavit in Support of the Amended Originating Summons. Accordingly, the contention by the Respondents and all the submissions based thereon shall therefore be discountenanced

Turning to the main issue for determination, there is no doubt as was rightly contended by the learned D.P.P. on behalf of the Appellants that on the authority of Ibama v. SPDC (Nig.) Ltd. (2005) 17 N.W.L.R 378 – 379, the Supreme Court had expressly stated that the onus is on an employee who alleges the wrongful termination of his employment or his wrongful dismissal by his employers to place before the court the terms of the contract of employment before proceeding to prove the manner of its breach by the employer and that it is not the duty of the defendant so to do.

Agbaje J.S.C. had aptly and succinctly given his judicial assent to this assertion when he stated thus is Amodu v. Amode (1990) 5 N.W.L.R (Pt. 150) 356 at 370 inter alia:-

“It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service between them it is for the Plaintiff to plead and prove the conditions of service regulating the contract of service in question.” (See Iwuchukwu V. Nwizu (1994) 7 N.W.L.R (Pt. 352 & 379)

In the instant case, I have searched through the entire gamut of the Originating Summons but cannot find where the contract of service documents or Appointment letters of the Respondents were tendered and ordinarily, the submissions of the learned Counsel for the Appellants would have been unassailable considering the state of the law.

However, as was rightly submitted by the Learned Counsel for the Respondents and approved by the Learned trial Judge, the Respondents had pleaded in their paragraphs 5 & 6 of the Further and Better Affidavit in support of the Originating Summons inter alia:-

“5. That all of us, the Claimants herein, were officers in Kwara State Government Service on pensionable cadre; and liable to be disciplined under the Civil Service Rules of Kwara State by Kwara State Civil Service Commission.”

“6. That from 1996 till date, our parent ministries, that is the Ministry of Finance and Governor’s office, did not have cause to give any of us query nor tried for any misconduct by the Kwara State Civil Service Commission.”

With the greatest respect, the Respondents have pleaded their respective status as

Senior Officers on Pensionable Cadre whose employments savour of statutory regulations as regard their mode of discipline, determination either by way of dismissal or termination of their employments. See Idermia v. Rivers State Civil Service Commission (supra).

The court also found out from the totality of the evidence before it that the Appellants did not contest the status, terms and conditions of the Respondents’ employment and their manner of breach. (See pages 281-282) where the court was categorical that having conceded that the Respondents could not have been legally removed until the Civil Service Rules is strictly complied with, the dismissal of the Respondents without complying with the said Rules is null and void.

To demonstrate the status of one of the Respondents, Exhibit MOJ BSA captioned:

“RECOMMENDATION FOR DISCIPLINARY ACTION”; with Reference No. ACF/457/T/2 of 19th July, 1999 and addressed to the Chairman Civil Service Commission Ilorin, states as follows:-

“I recommend Disciplinary action as follows against the officer whose particulars are given in paragraph 2 below.

2. (a) Name and Age: Mr. Micheal O. Oladipo.

(b) Date of first appointment: 1st April, 1986.

(c) Present post and date of appointment to it: Administrative Officer 1 w.e.f. 1/7/95.

(d) Present salary: GL.09.

(e) Status (whether confirmed pensionable officer, on probation, on contract, on temporary month-to-month, e.t.c.) confirmed Officer.” See page 223 of the Records.

Exhibit MOJ BSc and MOJ BSd two other letters from the Appellants addressed to the Head of Service one informing him of the disciplinary action taken against the said Michael O. Oladipo and the other, the letter of his dismissal dated 24th September, 1999, purported to have dismissed the 12th Respondent in accordance with the CSR.04201 and 04110. In those letters, the said 12th Respondent was described also as a Personnel Officer 1. Moreover, the learned Attorney General had also submitted at page 202 of the Record of Proceedings with reference to Exhibit MOJ BSD attached to Exhibit MOJ1, that the claimants were dismissed from service in line with the relevant Civil Service Rules 04201 and 04110 respectively.

Now, Rule 04110 of the Kwara State Civil Service Rules provides that:

“04110 – If an officer is convicted on a criminal charge, the State Public Service Commission shall consider the proceedings of the Criminal Court and if it is of the opinion that the officer should be dismissed or subjected to some lesser penalty on account of the offence for which he has been convicted, the officer may there upon be dismissed or otherwise punished without any of the proceedings prescribed in Rule 04107 and 04108.”

Rule 04201 on the other hand defines misconduct in the civil service to mean “a specific act of Serious wrong – doing susceptible of investigation and proof’ and includes the acts or omissions or general misconduct enumerated in sub- Rules (i) to (x) and particularly as far as the present appeal is concerned, sub- Rule (ii) conviction for any criminal offence (other than a minor traffic or sanitary offence or the like; cases of doubt should be referred to the Public service Commission for guidance).

The purport of the submission of the learned Attorney -General as stated above is a concession that the employment of the Respondents was/is statutorily regulated and the Respondents ought not to be ordinarily dismissed without compliance with the regulatory statute, in this case, the kwara State Civil Service Rules 04107 and 04108. Rule 04107 deals with serious misconduct by officers in the public service and defines the term ‘officer’ as used in the Rules to refer to all officers in the Public Service except the following:-

(a) Officers on contract or month -to – month terms;

(b) Unestablished staff, and;

(c) Non- pensionable staff, etc. Indeed, the said Rule specifically provides for the mode of dismissal of pensionable officers in the service in the following terms:-

“An officer in State Public Service may be dismissed by the State Public Service Commission only in accordance with the following Rules unless the method of dismissal is otherwise provided for in this Civil Service Rules:”

The procedures/methods to be adopted before such a pensionable officer is dismissed are laid down in sub-Rules (i) – (xviii). As a first step, the officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing before a day to be specified (for which day must allow a reasonable interval for the purpose) any ground upon which he relies to exculpate himself. By sub- Rule (ii), the matter shall be investigated by the appropriate authority with the aid of the Head of Service and such other officer(s) as the authority may appoint. If witnesses are called in the course of investigation to give evidence, the officer shall be present and to put question to the witnesses and no documentary evidence shall be used against him unless he has been availed the opportunity of seeing such a document in advance. Where the officer fails to make representations within the time fixed for the investigations, the State Public Service Commission may take action as it deems fit.

If the officer however submits his representations and the Commission is dissatisfied that he has exculpated himself, the Commission shall take action immediately. But where the Commission is satisfied that the officer does not deserve to be dismissed from service but deserves some other punishment or retirement from service, such punishment or retirement shall be imposed by the Commission accordingly. See sub -Rules (iii) – (viii).

In exceptional circumstances, particularly where the representations need clarification, the Commission shall set up a committee of not less than 3 persons, the composition and character of the members which have been stipulated in sub – Rule (ix) and such an officer shall be informed of the specific day he shall be required to appear before the committee to defend himself, call witnesses if necessary, and to also cross-examine witnesses called by his accusers (sub-Rule x and xi).

The officer shall also be entitled in exceptional cases to be represented by counsel of his choice and where in the course of the enquiry further grounds for his dismissal are disclosed, he shall accordingly be furnished with a written statement on the new grounds and the enquiry shall observe the same procedure as in the original grounds. (See sub- Rule xii and xiii). The committee at the conclusion of enquiry shall submit a report to the Commission which upon consideration thereof is satisfied that the officer should be dismissed, shall take immediate action to that effect. However, where the Commission does not approve of the officer’s dismissal, or that any penalty should be imposed, the officer shall be reinstated with immediate effect and shall be entitled to his full salary hitherto denied him if he was interdicted. (See sub – Rules xiv – xviii).

From the foregoing provisions of the Civil Service Rules, the rules of natural justice as encapsulated in the maxim audi alteram partem and of fair hearing as enshrined in Section 36 of the 1999 Constitution, have been replicated to guide the procedure for the dismissal of a civil servant in the pensionable cadre like the Respondents in this case, the breach of which as was rightly held by the trial Judge would render such a dismissal an exercise in futility and null and void.

It is pertinent to note that the 1st – 11th Respondents were allegedly dismissed for misconduct; they pleaded and contend herein as they had done in the lower court that they were not served with any dismissal letters which fact was never contradicted or challenged throughout the counter -affidavit of the Appellants. All that was stated in their counter – affidavit against the Originating Summons was that they were not parties at the Federal High Court and as averred in paragraphs 13 – 18, the action of the Claimants was statute barred. For the avoidance of doubt, the relevant paragraphs of the counter -affidavit state as follows:

“13. That the Defendants herein were not parties to the said appeal and were not notified at any time.

“14. That the cause of action between the Claimants and the Defendants accrued on 24th day of May, 2000.

“15. That the claimants filed the suit before the Federal High Court on the 4th day of January, 2001.

“16. That the period between 24th day of May, 2000 when the cause of action accrued and 4th day of May, 2001 when the suit was instituted was well over seven months.

“17. That between 2000 and January 2001 the period allowed for institution of suit against the Defendants therein as public officers had elapsed.

“18. That the Claimants deliberately struck out the names of the 2nd and 3rd Defendants at the Federal High Court in order to get jungle justice.”

Accordingly, the issue of the status of the Respondents was never disputed by the Appellants in their pleadings. However, in their respective addresses on issue No.3 of the Defendants and issue No. 2 of the Claimants before the lower court, learned counsel on both sides then raised the issue of the nature of contract of service between the parties, the status of the Claimants (now Respondents) and the manner of breach of the contract.

Although, it may be conceded that by virtue of Rule 04110 an officer may be dismissed or otherwise punished without the Commission undertaking any of the proceedings prescribed in Rules 04107 and 04108 where an officer has been convicted on a criminal charge, it is mandatory for the Public Service Commission to consider the proceedings of the Criminal Court and if it is of the opinion that the officer shall be dismissed, or subjected to lesser penalty, proceed to dismiss the officer or impose the appropriate penalty as may be prescribed against the officer. In this appeal however, although Exhibit MOJ BSJ from the Ministry of Finance to the Secretary to the State Government captioned ‘DISCIPLINARY ACTION AGAINST THE GOVERNMENT OFFICIAL CONVICTED BY THE MISCELLANEOUS OFFENCES TRIBUNAL’ and dated 14th August, 1998, in paragraph 1 thereof states that:

“I am directed to inform that the Senior Staff Management Committee (SSMC) of

this Ministry had deliberated and mode recommendation for disciplinary action against the eleven (sic) official of this Ministry, convicted by the Miscellaneous Offences Tribunal for the fraud committed in the payment of pensions,”

and Exhibits MOJB5K, MOJB5l are reports on the completion of trial of the 16 persons arraigned before the Tribunal for defrauding the Federal Government of about N72 million, there is nothing from the Records to show that the 1st to 11th Respondents were dismissed or that they received their dismissal letters apart from the 12th Respondent whose letter of dismissal and other documents relating to disciplinary action against him were tendered.

In any case, Rule 04112 of the Kwara State Civil Service Rules has provided in clear terms that although an officer acquitted of a criminal offence shall be penalized for any charge of which he has been acquitted and that nothing shall prevent his being dismissed or otherwise punished on any other charges arising out of his conduct in the matter, there is a proviso that charges should not raise substantially the same issues as those of which he has been acquitted. Thus, the equitable Rule of estoppel that a man should not be vexed twice on the same issue and the statutory defence of autre fois acquit shall apply in full force to the case of an officer who has been dismissed from service on account of a conviction on a criminal charge but has been acquitted by a court of law as in the case of the Respondents.

Finally, I reiterate that the court below was right in holding that the dismissal of the Respondents was null and void and on the authorities of Iderima v. Rivers State Civil Service Commission (supra), Edet v. Chief of Air Staff (supra); Okoroafor v. Minister of Internal Affairs (supra); Olaniyan v. Unilag (supra); Dr, Tunde Bamigboye v. Unilorin & Anor (supra) all cited by the learned trial Judge in his judgment are most apposite to the this appeal. In line with the Supreme Court cases of Nnoli v. UNTH Management Board (1994) 13 K.L.R (pt.25) 163 at 183; Per Onu J.S.C., Hart v. Military Governor of Rivers State (1976) N.S.C.C (Vol. 10); Shitta- Bey v. The Federal Public Service Commission (1981) 1 S. C 26 (Reprint) at 35 -36 and UBN. (Nig Ltd). v. Ogboh (1995) 2 N. W.L.R (pt. 360) 647 at 669; once the dismissal has been declared null and void, it is as if the Respondents were never dismissed and their contract of employment which was in the circumstance unilaterally repudiated, still subsisting and they were/are entitled to be restored to their status quo ante.

Accordingly, I resolve issue NO.2 in favour of the Respondents.

ON ISSUE NUMBER 3, which is whether or not, the Respondents’ claim, as constituted before the trial court, was statute barred, the learned D.P.P referred to the claims of the Respondents at pages 3, and 11 – 12 of the records submitting that it is trite that actions against public officers and authorities should be commenced within 3 months of the act complained of otherwise the Plaintiff’s right would be extinguished by effluxion of time.

Reliance was placed on section 2 of the Public Officers Protection law Cap. 135, laws of Kwara State and the Supreme Court decision in Ibrahim v. J.S.C (1978) 14 N.W.L.R (pt. 578) 1. He further posed the question as to when the cause of action arose in this matter having defined what a cause of action is, citing per Adekeye J.C.A (as he then was) in Aiyelabegan v. Local Government Service Commission a decision of this Honourable court in suit No. CA/IL/ 68/2007 delivered on 24th October, 2007.

It was submitted therefore that in the determination of the date of accrual of a cause of action, the court must examine the Plaintiff’s claim as expressed in the Writ of Summons and Statement of Claim. According to counsel, that time begins to run from the date of occurrence of the cause of action and that the court begins to calculate the time when there is in existence a person who can sue or another who can be sued and all the facts which are material to be proved in order for the Plaintiff to succeed have happened. Eboigbe v. NNPC (1994) 5 N.W.L.R (pt. 347) 649 and Eboigbe v. Adefarasin (No.2) (1987) 1 N.W.L.R (pt. 47) 1 were cited as authorities for the above submission.

The learned D.P.P. further submitted that a careful perusal of the circumstances of the case would reveal that all the facts necessary to institute an action against the Appellants were available to the Respondents as at when the Respondents filed the suit in the Federal High Court which was the subject of appeal in Appeal No. CA/IL/67/2006. It was the learned Director’s contention that as at the 4th January, 2001, all the facts upon which the Respondents could have predicated their reliefs were already available to them as they were already aware of the facts that the Records of their conviction was untraceable, were already out of prison and that as at that date no further correspondence in respect of the subject matter transpired between the parties until after the Court of Appeal judgment. It was finally submitted that this present action having been instituted more than 3 months after the cause of action arose is incompetent. He then urged the court to resolve the issue in favour of the Appellants allow their appeal and dismiss the Respondents’ claim for the reasons highlighted in the Appellants’ submissions in their Brief of Argument. Reacting to the submissions of the Appellants on this issue, Mr. Gbadeyan for the Respondents noted that the issue has been extensively dealt with by this Honourable court in its judgment in Exhibit JDA 2 at page 41 thereof. It was submitted that in the instant case, the cause of action arose after the judgment of this Honourable court which was delivered on 3rd July, 2007, declaring the Respondents’ conviction by the Miscellaneous Offences Tribunal null and void and this action was instituted by the Respondents via the Originating Summons on 24th August, 2007, less than 2 months after the delivery of the court’s judgment. According to learned counsel for the Appellants, the basis for the Respondents’ claim is well captured by the learned trial Judge’s decision on this issue at pages 281 and 283 of the Records. He also alluded to the Respondents’ claim in their Originating Summons which is reproduced as follows:-

“(1) A DECLARATION that the purported dismissal of the Claimants from the service of Kwara State Government is unlawful, invalid and of no effect whatsoever.

“(2) A DECLARATION that based upon the Court of Appeal decision in Joshua Abiodun Dada v. Attorney General of the Federation (supra), which nullified the criminal trial and convictions of the Claimants, the said Claimants are entitled to their reinstatement into the service of the Kwara State Government, and consequentially, their unpaid salaries, emoluments and promotions as at when due from 1997 till the date of judgment.

“(3) AN ORDER mandating the defendants to reinstate the Claimants to the service of Kwara State Government and pay them the unpaid salaries, emoluments, and promotions as at when due from 1997 till the date of judgment.

“(4) AN ORDER of injunction restraining the Defendants and/or anybody however from determining any of the Claimants’ service with the Kwara State Government without recourse to the laid down rules and regulations, and/or any other applicable laws safeguarding their master and servant relationship with the Kwara State Government.”

Learned counsel for the Respondents referred to the above reliefs especially Relief

No.1 which reveals that it would be impossible for the Respondents to successfully prove their case before the trial court without this Honourable court’s judgment in Exhibit JDA2 wherein the Respondents’ conviction by the Miscellaneous Offences Tribunal was declared a nullity. Having decided not to appeal against the said judgment, counsel further submitted, it would have been expected that the Appellants would reverse the dismissal order and recall the Respondents immediately but that it was the failure of the Appellants to do what was expedient that informed the writing of a letter by the Respondents through their solicitor wherein the Respondents demanded for their reinstatement by Exhibit JDA 3 and v JDA 4 via Exhibit JDA 5 and the Respondents also replied to Exhibit JDA 5 through Exhibit JDA 6, and when there was no response to Exhibit JDA 6, the Appellants were left with no option other than to seek legal redress in the court of law by instituting this action.

He therefore, submitted that considering the facts of this case and the Respondents’ claim in their Originating Summons in this case, the cause of action accrued after the judgment of this Honourable court which was delivered on 3rd July, 2007 nullified the Respondents’ conviction by the Miscellaneous Offences Tribunal and the refusal of the Appellants to reinstate the Respondents as demanded in Exhibit JDA 3 and JDA 4. The Respondents having instituted the action before the expiration of 3 months thereafter, the Respondents’ claim as constituted before the trial court is not statute barred.

Submitting further that the provisions of the Public Officers Protection Law, Cap. 135, Laws of Kwara State is not applicable in this case, more so, when the 1st Appellant is a public institution and the 2nd and 3rd Appellants are not being sued in their personal capacities as public officers acting in the execution of public duty, he stressed that this action is not even instituted against the incumbent Attorney General of Kwara State and Governor of Kwara State. He cited Oyejekwa v. The Nigeria Police Council (1996) 7 N.W.L.R. (pt. 463) 704 at 712/713, paragraphs H – A where the court held as follows:-

“It is now settled low that the Act protects an institution, office, or public authority. See Nwankwere v. Adewunmi (1967) N.W.L.R. 45. In Tafida v. Abubakar (1992) 3 N. W.L.R. (pt. 230) 511, it was held that the office of Attorney-General is an institution or a public office and there fare is not protected by the Act. It is my considered view that the learned trial Judge merely glossed over the Agboola’s case (supra). It is beyond any doubt that the Appellant sued the office of the Inspector General of Police and not the person of the Inspector General of Police. It is the office that is established by Section 5 of the Police Act Cap. 359 of the Laws of the Federation of Nigeria. It is an institution and the action was not filed against the incumbent Inspector General of Police in his individual personal capacity acting in the execution of public duty. From the authorities cited above, I am satisfied that the office of the Inspector General of Police is not protected under the Public Officer (Protection) Act.”

He then urged this Honourable court to resolve this issue in favour of the Respondents by holding that the Respondents’ action is not statute barred.

I have carefully considered the submissions of learned counsel for the respective parties on this issue and I must commend them for their industry in the articulation of the issue at stake. Section 2 of the Public Officers (Protection) Law, Cap. 135, Laws of Kwara State 1994 Edition stipulates as follows:-

“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect:-

(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof:

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

In the case at hand, the Appellants have rightly submitted which submission has been conceded to by the Respondents that:-

“In determining the dote of accrual of a cause of action, the court must examine the

Plaintiffs claim as expressed the Writ of Summons and the Statement of Claim so as to identify the material incident which constitute the cause of action and determine when they occurred. For the purpose of limitation law time begins to run from the date of the occurrence of the cause of action. The court must begin to calculate when there is in existence a person who can sue or another who can be sued and all the facts that have happened which are material to be proved to entitle the Plaintiff to succeed.”See Eboigbe .v. NNPC (1994) 5 N.W.L.R. (pt. 347) 649 and Eboigbe v. Adefarasin (No.2) (1987) 1 N.W.L.R. P 147 pg 1.

Going by this authority and the proviso to section 2 (a) of the Public Officers (Protection) Law earlier cited, the Appellants contend that the cause of action had arisen on the 4th of January, 2001 when the Respondents instituted the action in the Federal High Court having been seized of all the facts which were material to be proved to entitle them to succeed in this case. The Respondents on the other hand have contended that going by the reliefs sought, particularly Relief No. 1 which is for a declaration that the purported dismissal of the Claimants from the service of Kwara State Government is unlawful, invalid and of no effect whatsoever, the Respondents could not have successfully proved their case before the trial court without the judgment of this court in CA/IL/67/2006 quashing the conviction of the Respondents. Having not appealed against the judgment of this court, it was expected that the Appellants would return the Respondents to their status quo ante as if they had not been dismissed from service but they failed, refused and/or neglected to reinstate the Respondents despite the correspondences through Exhibit JDA 3, JDA 4, JDA 5 and JDA 6. It was the failure to accede to the request of the Respondents as contained in Exhibits JDA 3 and JDA 4 that broke the Carmel’s back thereby warranting the institution of the action – the subject of this appeal in the Kwara State High Court. The judgment of this court nullifying the convictions and sentences imposed on the Respondents was delivered on the 3rd July, 2007 while the suit in the High Court of Kwara State was instituted on the 4th day of August, 2007.

Thus, I agree with the submissions of learned counsel for the Respondents that the cause of action arose on the 3rd of July, 2007 when this Court set aside the judgment of the Miscellaneous Offences Tribunal convicting the Respondents. Since that suit was initiated in less than three months of the accrual of the cause of action, the claim of the Respondents was not statute barred as contended by the Appellants. In Suit No. CA/IL/67/2006, my lord Sankey, J.C.A, when confronted with the same argument that the Suit earlier filed in the Federal High Court on the 4th January, 2001 which gave rise to the appeal in question, admirably dealt with the nuances of this vexed issue of Public Officers (Protection) Act and limitation of actions and I make bold to reproduce excerpts as contained in page 41 of the judgment inter alia:-

“Finally, on the issue of the Appellants’ action being caught by the provisions of the Public Officers’ protection Act, 1990, the law is trite that where the injury complained of is a continuing one, time does not begin to run until the cessation of the event leading to the cause of action. In the instant case, the lost/missing/untraceable judgment is still not available or accessible. The injury arising from this loss is still a continuing one. At the time this suit was filed on 4th January, 2001, the demand letters by the Appellants far the judgment and the record of proceedings of the Tribunal had still not yielded any positive answer. The Notice of Appeal filed by the 11th Appellant still subsists and no progress can be made in that line without the judgment and the record. Besides the Supreme Court has held that the Public Officers Protection Act does not apply to bar a relief sought in connection with an error committed in a purely judicial capacity, as in this case.

“Where the remedy sought is to enforce a constitutional right contravened by a court acting judicially, the time within to seek that remedy is not subject to the time limit prescribed by the Public Officers’ Protection Act. See Federal Republic of Nigeria v. Ifegwu (2003) 5 S.C. this issue is again resolved against the Respondent.”

I cannot but agree with the erudite reasoning of my lord Sankey, J.C.A and I adopt same as mine since the above holdings are on all fours with the circumstances of this case. That the action of the Respondents in the Lower court was not statute barred also warranted the learned trial Judge to uphold the submissions of the learned counsel for the Respondents at pages 281 and 283 of the Records thus:-

“In the case at hand, reliefs 1 and 2 seek a declaration that the purported dismissal of the claimants from the service of the Kwara State Government is invalid, null and void in view of the judgment of the Court of Appeal that nullifies their conviction; and that they are entitled to reinstatement. As have earlier said, the dismissal of the claimants is based on their conviction by the Miscellaneous Offences Tribunal. I refer to Exhibit MOJ 5. If such a conviction is declared a nullity by the Court of Appeal, then there is no basis again far the dismissal of the Claimants by the Defendant.” Page281

At page 283, his Lordship further held thus:

“Having held that the case is not statute barred the dismissal of the Claimants which was based on their conviction by the Tribunal if the said verdict was declared null and void by the Court of Appeal, then dismissal also based on the conviction becomes null and void and of no effect whatsoever.

“Once on act is declared a nullity following the detection of fundamental vice it is null and void and it is as if that act has never taken place before. See Abilawon Ayisa v. Olaoye Akanji and 25 others (1995) 7 S.C.N.J. 246. Having declared the Claimants’ dismissal null and void, the effect is as if nothing has happened. They are automatically returned to status qua and are entitled to their arrears of salaries and emoluments. The Court of Appeal’s judgment Exhibit JDA2 is still valid and subsisting. Having decided not to appeal against the said judgment one would expect that the Defendants would have reversed the dismissal order and recall the Claimants immediately. I therefore, hold that the Claimant herein are entitled to be reinstated and paid their arrears of salaries and emoluments. The Claimants stand restored. I refer to the case of Okoroafor Alfred C. v. Minister of Internal Affairs and 4 Ors. (2004) All F.W.L.R. (pt. 209) 1108.”

I am of the considered view that the findings and decisions of the learned trial Judge on this issue are unassailable and I have no course to disturb same.

Having held that the case of the Respondents was not statute barred, this issue is again resolved against the Appellants and in favour of the Respondents. On the whole, this appeal therefore lacks merit and it is accordingly dismissed.

The judgment of the Kwara State High Court of Justice, Ilorin Division delivered by M. A. Folayan. J, on the 22nd day of February, 2008, is hereby affirmed.

Parties shall bear their respective costs.

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Other Citations: (2009)LCN/3252(CA)