Mr. Benjamin Ukwuom V. Federal Ministry Of Sports And Social Development & Ors (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal against the ruling of the Federal High Court (Abuja) dated 23rd July 2003 delivered by the Honourable Justice Binta Nyako. The Appellant as Plaintiff in the court below instituted the action by way of Originating Summons and claimed 16 reliefs as follows:-
1. A declaration that the purported termination of employment, retirement of the applicant from service is wrongful unlawful and null and void.
2. A declaration that the letter purporting to retire the Applicant from service dated 6th May, 1999 is irregular, null and void.
3. A declaration that the Senior Staff Committee of the Federal Ministry of Sports and Social Development acted beyond its powers under the Rules of Public Service Rules (part v) Rules 4, 8(ii)
4. A declaration that the procedures adopted by the Ministry of Sports and Senior Staff Committee of the Ministry were irregular and in violation of the Civil Service procedure on discipline particularly part v Rules 4,8 (ii), 17, 18, 19, 20, 21, 22 and 23 (i) and (ii) and part iv of the Guidelines for Appointments Promotion and Discipline and chapter 4, Rules 04302, 04303, 04304, 04305, 04306, 04401, 04402, 04405 and 04601 of the Federal Government Public Civil Service Rules 2000.
5. A declaration that the procedure adopted by the Senior Staff Committee, the 1st Respondent violates the applicants fundamental Right to fair hearing.
6. A declaration that the procedures adopted by the 1st Respondent, the Senior Staff Committee of the 1st Respondent in investigating and the trial of the allegation of theft of iron rods from the National Stadium, Lagos were irregular, unconstitutional. 7. A declaration that the 4th Respondent was negligent in framing an allegation of theft against the Applicant based on purported Newspaper report 8. An injunction restraining the 5th Respondent, its agents or privies from interfering with the official accommodation of the Applicant pending the determination of the case. 9. An order of mandamus directing the 1st and 2nd Respondents to reinstate the applicant in the service and to pay him all the arrears of his emoluments.10. A declaration that the purported query given to the applicant by the 4th Respondent is irregular, null and void being contrary to the procedure laid down by the Rule 043021, 04303 and 04304 of the Civil Service Rule and the Guidelines for Appointments, Promotion and Discipline particularly part v, Rules 1, 2 and 4 thereof.
11. A declaration that the purported suspension and retirement from service, based on the query of the 4th Respondent is irregular, null and void.
12. A declaration that the purported proceeding, meetings, considerations of the applicants case by the Senior Staff Committee of the 1st Respondent is irregular unconstitutional null and void and of no effect. 13. A declaration that the failure of the Senior Staff Committee of the 1st Respondent to invite the applicant to testify before it, to defend himself against the allegation of the 4th Respondent violates the applicants fundamental and constitutional, null and void.
14. A declaration that the composition of the Senior Staff Committee which tried/deliberated on the allegation of the 4th Respondent violates the cardinal principle of natural justice and is unconstitutional and void.
15. An order of mandamus directing the 1st and 4th Respondents to pay the Applicant the sum of
N10 million naira damages for inducing the wrongful/unlawful and premature suspension and termination of the employment of the applicant.
16. Any further order (s) as this Honourable Court may deem fit to make in the circumstances.
FACTS:-
The Appellant’s written address in the suit of his case was filed and adopted.The said written address contained arguments in furtherance of its case on the Originating Summons. The 1st and 4th Respondents as 1st and 4th Defendants in the court below filed written addresses in reply to the Appellant’s Address. The 2nd Respondent as 2nd Defendant in the court below filed a counter-affidavit in response to the appellant’s Originating Summons and did not file a written address. The 2nd Respondent as 2nd defendant at paragraph 19 of the counter-affidavit raised the issue of limitation of time and jurisdiction. The Appellant’s substantive application by way of Originating Summons was heard on the 30th day of April 2002 and adjourned to 27th of June 2002 for the Defendants to reply.The 2nd Respondent as 2nd Defendant appeared in the action on the 27th June 2002 and by their counsel moved an application for extension of time to enter appearance. The objection to the appellant’s suit was eventually taken on the 28th of May 2003 and the counsel to the 2nd Respondent’s replied on points of law on the 16th of June 2003.
The Court adjourned ruling to the 23rd of July 2003 and on that day ruled that the suit was statute barred and ought to have been brought by a writ of summons and not originating summons and so the case was dismissed by her. It is against that decision that the Appellants have appealed to this court.
ISSUES FOR DETERMINATION
The Appellant by a Brief of Argument filed on the 8/4/05 formulated three issues for determination which are:-
1. Whether the learned Judgment at first instance was right in law and on the facts in holding that the Appellant’s action (as plaintiff in that Court) was statute barred.
2. Whether the learned Judge at first instance was right in law and on the facts to hold that the action ought to have been commenced by Writ of Summons.
3. Whether the learned Judge at first instance is right in law in upholding the objection of the 2nd Respondent. 1st, 2nd, 4th Respondents filed no briefs.
The 3rd Respondent by Brief of Argument filed on 6/8/04 and deemed filed on 14/11/05 framed two Issues for determinatlon:-
1. Whether the court below was right in law and on the facts in holding that the Appellants action was statute barred.
2. Whether in view of the contentions nature of the Applicants affidavit in support on the originating motion on notice/ the trial court was right in law and on the facts in holding that the action ought to have been commenced by a writ of summons.
For ease of reference and convenience I shall utilise the issues as formulated by the 3rd Respondent.
ISSUES NO. 1:-
Learned counsel for the Appellant submitted that the Appellants case was filed after the internal remedies had been exhausted. That the trial Judge fell into an error in holding that the appeal by the Appellant to the Civil Service Commission in accordance with the Public Service Rules amounted to negotiations. He referred to the letter dated 24th May 2001 in which the Federal Civil Service Commission communicated to the Appellant its decision to disallow the appeal to the Commission. He cited the cases of Akibu v. Azeez (2003) 5 NWLR (pt 814) 643 at 673; Akinbode v. Chief Registrar (2003) 3 NWLR (pt 808) 585 at 602 – 603 paras G – A; Abacha v. Eke Spiff (2003) 1 NWLR page 114 at 201 – 202.
Learned counsel further contended that Exhibit 11 showed that on the 6th May 1999 the Appellant’s employment at the Ministry was terminated and he was effectively retired. That Exhibit 12 is a letter dated 24th May 2001, wherein the Federal Civil Service Commission notified the appellant that his appeal against retirement had been refused and thereby affirming the decision of the Federal Ministry of Sports, Exhibit 11. That since the Federal Civil Service Commission has the power within its administrative functions to overrule or set aside the decision of the Federal Ministry of Youth and Sports, then it must be accepted that time does not begin to run until the decision of the Commission is given. That the appellant filed his action in the Federal high Court on the 23rd of August 2001 which exactly 3 months short of one day and so the Appellant’s action was well within the statutory period. He cited the case of Amaghizenwen v. Egwawense (1993) 9 NWLR (pt 315) 1.
Learned counsel for the Appellant went on to say that a party has a right to exhaust all the internal remedies of a body i.e. the Civil Service before his/her decision to file an action. That if the Appellant had filed the action after the letter of termination by the Ministry of Sports, he would have been open to an objection that the action was premature because the Public Service Rules 2000 allows and provides for an internal appeal machinery. That this appeal process that the appellant took advantage of and which point the trial Judge disregarded. That exercising a right which is provided for by the Public Service Rules, cannot be referred to as negotiation, and this court should so hold.
The learned counsel for the 3rd Respondent referred to Rule 04305 of the Federal Government Public Service Rules and submitted that the Civil Service Commission being the overall boss, merely oversees what steps Ministries and
if found that the steps were in conformity with Rule 04305. That therefore the Respondents are covered by the provisions of Section 2(a) of the Public Officers Protection Act, Cap 379 Laws of the Federation of Nigeria 1990.
Learned counsel for 3rd Respondent said Exhibit 10, the letter of suspension was issued on 10/9/98, while Exhibit 11, the letter of retirement was issued on 6/5/99 and the Appellant commenced the suit on 30/8/2001 well out of the stipulated period of 3 months. He cited Grains Production Agency & 2 ors v. Ezegbulem (1999) 1 NWLR (pt 587) 399 at 408 – 409; Omotayo v. NRC (1992) 7 NWLR (pt 254) 471; Anigboro v. Seatrucks (Nig.) Ltd (1995) 6 NWLR (pt 399) 35; Lawan Sanda v. Kukawa local Government & anor (1991) 2 NWLR (pt 174) 379 at 390.
He further stated that the Respondents are by constitutional creation persons in law and are public officers. He referred to Ibrahim v. Judicial Service Committee (1998) 14 NWLR (pt 584) 1 at 12.
learned counsel for 3rd Respondent went on to say that the period of negotiation has been held to be of no consequence in the defence against being statute barred. He cited Eboigbe v. NNPC (1994) 5 NWLR (pt 347) 649 at 660.
He stated that the Appellate body either ratifies the action of the 1st Respondent or disagrees with it and where it affirms the action of the 1st Respondent, the affirmation dates back to the date the cause of action had arisen which in this case is 6th May, 1999 and so this court should hold that negotiation by the parties did not prevent or stop time from running.
On the related matter concerning whether or not the cause of action is statute barred I refer to Akinbode v. Chief Registrar, High Court of Oyo State (2003) 3 NWLR (pt.808) 585:
1. Cause of action means the facts or contribution of facts which give a person the right to judicial relief. The phrase is important with reference to the limitation Law and jurisdiction of court Cause of action is determined by the plaintiff’s case: Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1; Omotayo v. N.R.C (1992) 7 NWLR (pt 254) 471; Bello v. A-G Oyo State (1986) 5 NWLR (pt 45) 828; Afolayan v. Ogunrinde (1990) 1 NWLR (pt 288) 227; 5odipo v. Leinukainens Oyo (1992) 8 NWLR (pt 288) 229; Sosan v. Ademuyiwa (1986) 3 NWLR (pt 27) 24; Odubeko v. Fowler (1993) 7 NWLR (pt 308) 637.
2. In deciding whether or not an action is caught by a statute of /imitation the determining factors and questions are:-
(a) Whether there is a cause of action.
(b) As the competence of a court goes to its jurisdiction/ the issue thereof can be raised on appeal for the first time and suo motu by the Court of Appeal. See Madukolu v. Nkendulu (1962) 2 SCNLR341; Oredoyin v. Arowolo (1989) 4 NWLR (pt 114) 172; Galadima v. Tambai (2000) v. UBA (1972) 8 – 9 SC 264.
When a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. In other words, an action commenced after the expiration of the period stipulated by the statute of limitation is not maintainable. Consequently, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See Eboigbe v. NNPC(1994) 5 NWLR (pt 346) 649) at 659 0 – E; Odubeko v. Fowler (1993) 7 NWLR (pt 308) 637; Ekeogu v. Aliri (1991) 3 NWLR (pt 179) 258.
The dispute between the parties in this Issue is straight forward and that is whether or not the suit in the Court below was statute barred as held by the learned trial Judge. The Appellant contends strongly that their suit is not statute barred because he had to await the decision of the appellate authority and in this instance the Head of Service as to whether the termination of his employment was proper or not. The Respondents contention disagreed stating that since the cause of action arose more than 3 months before the institution of the suit the fact of the pending appeal to the Higher Authority was of no moment since it fell within what is termed “negotiation” which does not prevent the passage of time for the purpose of coming within time for commencing the suit. This position of the Respondent was accepted and acted upon by the court below.
Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of setting the dispute generally such a negotiation by parties does not prevent or stop the period of limitation stipulated by a statute from running. The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails; see Eboigbe v. NNPC(1994) 5 NWLR (pt 346) 649; Nwadiaro v. Shell Petroleum (1990) 5 NWLR (pt 150) 322.
To answer this matter on which part of the divide to stand, it seems necessary to refer to the Federal Government Public Service Rules applicable for the purpose of this appeal and the suit in the court below.
“SECTION 2 – PETITION RULES”
11201- For the purpose of this Section a “petition” is a formal appeal to ultimate authority that is to the Head of Government for special consideration of a matter affecting an officer personally; it must be distinguished from a letter of representation addressed to an appropriate senior officer of Government in the normal way.
11202- Petition by an officer (or by an ex-officer on matters relating to his conditions of employment as an officer or his condition as a pensioner of Government) must be submitted in accordance with the rules set out in this Section.
11203- An officer must not attempt to bring political or other outside influence to support his individual claims.
If he is dissatisfied, his proper course is to make representations to his immediate superior officer or Permanent Secretary/Head of Extra – Ministerial Department. If his representations are not successful, it is open to him to submit a formal petition to the appropriate authority under Rules 11101.
Rule 11101-Every officer who has any representations of a public or private nature to make to the Government should address them to:
(a) The Chairman, Federal Civil Service Commission, in respect of matters relating to appointments (including acting appointments) promotion, transfer and discipline: OR
The Rules then went on to prescribe what would disqualify a petition in “Rules 11208 – (a) A petition which:
(i) does not comply with Rule 11029,
(ii) deals with a case in which legal action is pending in a court of law.
(ii) is illegible or meaningless,
(iv) is anonymous,
(v) is worded in abusive, Improper or foul language or
(vi) merely repeats the substance of a previous petition without introducing new relevant matter,
WILL NOT BE ENTERTAINED
The Rules above stated particularly Rules 111208 have excluded any matter already in court as disqualified to be entertained as a petition to have a decision taken at the departmental level either reviewed, affirmed or dismissed. This to my understanding must be exhausted before any suit can be instituted by the aggrieved. The Rules are explicit and left nothing for either conjecture or fanciful imagination. The Rules cannot therefore be termed or simply dismissed as negotiation which does not affect the effluxion of time. No, infact the petition or appeal to the Federal Civil Service Commission must be got out of the way and in the event of the failure of such a petition when the suit can be undertaken.
Not even the fact that in the event as in this instance the commission affirmed that termination and agreed with the date of announcement being 6/5/99 can the situation be said to have changed in order to being the Public Officers Protection Act into effect to jettison the right of the Appellant. This is because the peculiar circumstances must be taken in con to ward off a miscarriage of justice and also give effect to the relevant rules governing the parties in the course of the contract of employment binding them.
It is in the light of the foregoing that I do not hesitate in answering Issue NO.1 in favour of the appellant. That is that the suit was not statute barred.
ISSUE NO.2:
Learned counsel for the Appellant contended that from the reliefs sought in the court below the declarations are consequent upon facts, which are not in dispute and are in totality an interpretation of the Public Service Rules 2000. That the Respondents in no way, by affidavit evidence controverted the facts stated in the supporting affidavit of the Originating Summons. That 1st and 4th Respondents did not file a counter affidavit and the 5th Respondent was not represented. He stated further that assuming without conceding that 2nd Respondent contradicted the averments or certain averments in their counter affidavit a perusal of the reliefs claimed in the Originating Summons question the procedure by which he was dismissed from the service. He referred to Order 40 Rules 1 & 2 of the Federal High Court (Civil Procedure) Rules 2000; Din v. Attorney-General Federation (1986) 1 NWLR 471 Olaniyan v. University of Lagos (1985) 1 NWLR (pt. 1) 106; Learned counsel for the Appellant said the learned trial Judge erred in law and on the facts in holding that such an action ought to have been commenced by way of writ of summons.
Learned counsel also contended that the trial Judge fell into grave error in upholding that preliminary objection. That the trial Judge failed to appreciate the serious procedural error that the said objection was fraught with. That the counter affidavit filed by 2nd respondent ought to have been discountenanced because it was in flagrant breach of the rules of court and the principles enunciated in Nweke v. Orji (1989) 2 NWLR (pt.104) 48; Magoroh v. Fassasi (1986) 5 NWLR (pt. 40) 243.
He stated on that at the time 2nd respondent filed the said counter affidavit, arguments had been concluded by the appellant’s counsel and the leave of court was not sought before the said affidavit was filed. That the objection raised in the said affidavit was incompetent as an objection or prayer cannot be raised in an affidavit and the said paragraph 19 of the counter affidavit consists of both an objection and a prayer. He referred to Section 87 of the Evidence Act Cap. 112 Laws of the Federation 1990.
Learned counsel said what is clear is that the court has a discretion whether or not to allow a party to use the said affidavit. That it is not automatic and the party intending to use same is not completely shut out either. That inspite of the argument proffered on this issue in the court below the learned trial Judge did not address same in her judgment. That that judgment should be set aside.
In reply, learned counsel for the respondent said it is trite law that the court cannot act on what is not before it. That the procedures the appellant merely indicated but which he did not exhibit before the court are:-
(i) Disciplinary Committee’s meeting held,
(ii) Decisions taken;
(iii) Minutes f the meetings taken.
On the Appellant’s choice of filing his action by an originating summons rather than by a write of summons at the court below, learned counsel referred to Fidelis Nwadialor in his book titled Civil Procedure In Nigeria at pages 193 – 194. Learned counsel said there is no way issues raised in prayers 3, 4, 5, 6 and 7 can be clearly settled without the use of documents which are not before the court and the court cannot speculate.
He referred to Order 2 Rule 2 (2) of the Federal High Court (Civil Procedure) Rules 2000. That it is when those documents are made available to the court that it can make findings as to whether the procedures adopted were legal or illegal. That those declaratory reliefs 3, 4, 5, 6 and 7 are contentious and the appellant ought to have come by way of the writ of summons.
It is necessary in answer to this Issue to seek some settled principles of law and practice.
In Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1. It was held:
1. It is accepted that an action for declaration is a useful and important procedural method for ascertaining and determining a point of law or the construction of a document, and for the determination of the validity of orders or decisions of inferior courts or tribunals
2. A declaratory action is a discretionary remedy which is only granted subject to certain conditions. The discretion has to be exercised sparingly, with a proper sense of responsibility and judicial action. See Egbunike v. Muonweokwu (1961) 1 SCNLR 97.
3. The general theme of judicial observations has been to the effect that declarations are to be granted with great care and jealously, with the utmost caution and with extreme moderation. In other words, they are not to be lightly granted” but granted with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. It is of the utmost importance for a court to consider, before granting a declaratory relief, the conduct of the parties or the presence of alternative remedies or other factors which would influence the final decision of the case. See Ibeneweka v. Egbunike (1964) 1 NWLR 219.
4. An action for a declaration is used in a great variety of circumstances and is usually accompanied by ancillary Reliefs. The declaratory procedure is commonly adopted in cases of:
(a) disputes as to title to land under customary law;
(b) Disputes as to title to Chieftaincy. see Fabunmi v. Agbe (1985) 1 NWLR (pt. 2) 299; Gbokoyi v. Minister of Chieftaincy Affairs (1965) NMLR 7.
The power of a court to make a binding declaration is discretionary and therefore the court may or may not exercise it according to the surrounding circumstances.
The court will refuse to exercise the jurisdiction where it is to determine an academic or hypothetical question, so that where the declaration sought is already a decision of a statutory tribunal, the court will decline to exercise its discretionary jurisdiction to grant a declaration. Conversely, a declaratory judgment will be granted where the justice of the case demands it more than any other remedy. See Igbinweka v. Egbuna 91964) 1 WLR 219; Bello v. Emeka (1981) 1 SC 101; Irregular proceedings could be acquiesced in or regularized but where the proceedings are a nullity there is nothing to be acquiesced. See Ramon v. Jinadu (1986) 5 NWLR (pt 39) 100.
The main task before the court was to see if there was indeed a proper dispute or cause of action between the parties shown effectively by the Plaintiff and if the inelegant presentation or the choice of the mode of coming to the court should be of a secondary status and not to over shadow the main business of the court which is to do justice. I would however agree with the learned trial Judge on the matter of the action being stated by a writ of summons instead of the Originating Summons utilised by the Appellant as plaintiff. This is so because the questions to be answered by the trial court are disputed by the parties or even have the capacity to be contentious and so to appropriately deal with those issues or questions there arises the need to come properly before court so that the right approach would be used to get to the root of the dispute and have the issues resolved one way or the other. See Anatogu v. Anatogu (1997) 9 NWLR (pt 519) p. 49: Olumide v. Ajayl (1997) 9 NWLR (pt 517) 433.
Furthermore since the need would arise for the Appellant as plaintiff to proffer the necessary evidence to establish his case and discharge the onus upon which the declarations he sought would be accommodated no other option was open to him than to have the matter commence by a writ of summons and pleadings filed. See Kupoluyi v. Philips (2001) 13 NWLR (pt 731) 736. I would like to conclude by referring to the decided cases on what the attitude of an appellate court should be on findings of a trial court. I refer to the case of: Salati v. Shehu (1986) All NLR 53.
The attitude of court has been that of not allowing a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts except where the new grounds involved substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.
See Otun v. Otun (2004) 14 NWLR (pt. 893) 381 where it was held:
“where there are findings of a trial court, the Court of Appeal will not interfere with the decision of that court except where there are special circumstances to do so.
For instance? if it is shown that the findings are not based on the evidence or the pleadings before the trial court”.
From all that I have stated above I allow this appeal and set aside the decision/ruling of the Court below. I remit this suit to the Federal High Court Abuja for full trial by a court other than that presided over by Justice B. M. F. Nyako, and Appellant to file the writ of summons and pleadings before commencement of trial.
Other Citations: (2007)LCN/2177(CA)
