Mr. George Ochui Ojie & Ors V. Government of Cross River State & Anor (2016)
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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the decision of the High Court of Cross River State sitting at Calabar in the Calabar Judicial Division delivered by AKON B. IKPEME J. on the 10th December, 2012 in respect of an application for mandamus brought by the appellants against the respondents.
The appellants had lost their jobs pursuant to the privatization program of the 1st respondent embarked upon through the Cross River State Council on Privatization. They sought redress at the High Court of Cross River State but the respondents successfully objected to the said suit on the ground that pursuant to the provisions of the Cross River State Enterprises (Privatization) Law, recourse ought to have been made to the Cross River State Arbitration Panel provided for in Section 17 (1) of the said Law, upon which their suit was struck out.
Realizing that the said Cross River State Arbitration panel (hereinafter simply referred to as ‘Arbitration Panel) was not in place, the appellants through their counsel made several representations to the respondents to get the said Arbitration Panel established but all their
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efforts proved abortive.
The appellants then returned to the Court for an order of mandamus to compel the respondents to establish the said Arbitration panel but once again the respondents successfully objected to their action on the ground that the suit was statute barred.
Dissatisfied, the appellants invoked the appellate jurisdiction of this Court via the notice of appeal filed on 20th December, 2012 containing 6 grounds.
At the hearing of the appeal, Mr. Emori, the learned counsel for the appellants adopted his appellants’ brief filed on 22nd May, 2014 as well as the appellants’ reply brief filed on the 25th November, 2015 as the arguments of the appellants in furtherance of their appeal.
For the respondents, Mrs. Ekpo, Senior State Counsel adopted the respondents? brief filed on 9th February , 2015 but deemed properly filed and served on the 2nd June, 2015 as the arguments of the respondents in contesting this appeal.
The appellants distilled and formulated a lone issue for determination from grounds 2 and 3 of the notice of appeal, thereby abandoning the remaining four grounds, as follows:
Whether the learned trial
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Judge was not wrong when he held that the appellants, suit was statute barred on the ground that time started to run after 9th September, 2009 when the State Governor gave approval for the establishment of the state Enterprises Arbitration panel and that from 9th September, 2009 to 19th September, 2011, when the application for mandamus was filed, was clearly above the three months period contemplated by Order 40 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2001, which stipulated three months period within which to commence an action for an order of mandamus.
On her part Mrs. Ekpo formulated two issues for determination as follows:
1. Whether the failure of the appellant to first seek and obtain the leave of this Honourable Court to raise fresh issues is not contrary to Order 4 Rule 2 of the Court of Appeal Rules, 2011, if the answer is in the affirmative, whether this fresh issue is not liable to be struck out.
2. Whether the learned trial Judge was not wrong when he held that appellants, suit was statute barred.
The first issue of the respondents is obviously misconceived in view of the proceedings of this Court
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of 10th November, 2015 when this Court granted the appellants’ application for leave to raise a fresh point of law on appeal and deemed the fresh point of law already raised and argued in the appellants’ brief of argument as having been properly raised and argued. In the light thereof the said issue and arguments relating thereto shall be discountenanced.
The remaining issue formulated by the respondents is substantially in tandem with the sole issue raised by the appellants.
Arguing the said issue, Mr. Amori the learned counsel for the appellants submitted that the action of the appellants was not statute barred as the Privatization of Public Enterprises Law of Cross River State did not provide a time limit or set any condition precedent for the establishment the State Enterprises Arbitration Panel. He urged the Court to interpret the said statute in line with the intention of the legislature and referred to AGBAREH vs MIMRA (2008) 2 MJSC 134 at 165, SPDC (NIG) LTD vs ISAIAH & ORS (1997) 6 NWLR (PT 508) 236.
The learned counsel further submitted that from the uncontroverted affidavit depositions of the appellants, their grievances were still
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subsisting and that where what is prescribed by a statute is undone and the default persists, then the wrong emanating therefrom exists continuously.
Mr. Amori submitted that the steps taken by the respondents towards setting up the said Arbitration Panel could not in the absence of specific provisions in the statute constitute a time limit capable of vitiating the action of the appellant.
He concluded his arguments by stating that even if there was indeed a time limit of 3 months for the said Arbitration Panel to be established such would only be reckoned from the date following the last letter of the 2nd respondent on the issue which would place the action of the appellants within the stipulated time. He highlighted the appropriate computation of time and referred to NPA PLc vs LOTUS PLASTIC LTD & ANOR (2006) 2 MJSC 41 at 55-57 NUC vs OLUWO (2001) 3 NWLR (pt 699) 90 at 109-110, NIGERIA CUSTOM SERVICE vs BAZUAYE (2001) 7 NWLR (pt 712) 357 at 363.
He urged that the lone issue be resolved in favour of the appellants.
On her part, Mrs. Ekpo submitted that the cause of action of the appellants accrued on 9th September, 2009 when the
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Governor of Cross River State approved the setting up of the said Arbitration panel and was not revived by the letter of the 2nd respondent of 24th May, 2011 despite the submissions of the learned counsel for the appellants and that as such the action of the appellants was caught by the Limitation Laws of Cross River State. She referred to Section 28 (6) (b) of the said Limitation Law.
She submitted further that the said letter of the 2nd respondent was at best written during negotiations and was incapable of reviving the action. She referred to FRANCHAL (NIG) LTD vs NAB LTD (2000) 9 NWLR (PT 671) 1 and NNPC VS IORSHASE (2008) AA FWLR (PT 403) 1299 at 1320,
She urged the Court to hold that the default of the appellants goes to jurisdiction and accordingly dismiss the appear.
In his reply arguments, Mr. Emori submitted that the respondents misconceived the arguments of the appellants and failed to respond to the substance thereof.
He reiterated the relevance of the judicial authorities earlier cited by him and urged the Court to find for the appellants.
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I have given consideration to the arguments of the two sides in respect of the lone
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issue for determination.
As earlier recounted, the appellants approached the trial Court for an order of mandamus to compel the setting up of the Arbitration panel provided for under Section 17 (1) of the Cross River State Privatization Law.
The judicial order of mandamus has been described in the following words by ONNONGHEN, JSC:
MANDAMUS is simply on order issued by a Court of law, usually the High Court to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. See OHAKIM VS AGBASO (2011) 47 NSCQR 324 at 367. See also SHITTA- BAY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C 40.
The affidavit evidence of the appellants/applicants was unchallenged before the trial Court and materially disclosed the legal interest of the appellants/applicants. The main relief was to compel the performance of a public duty as stipulated in an extant law of cross River State.
The objection to the jurisdiction of the Court was predicated on the time limit provided for regarding applications for judicial review in Order 40, Rule 4 of the High Court of Cross River State (Civil Procedure)
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Rules, 2008 and Section 1 (a) of the Public Officers Protection Law of Cross River State. In his own words, the learned trial Judge held as follows on lines 14 ? 20 of page 150 in the record of appeal:
In the final analysis I find that this action is statute barred in that it offends against the three months limitation stipulated by Order 40 Rule 4 of the Cross River State High Court Civil Procedure Rules 2008 for applications of this nature. Being an action against a Public Officer as reflected in the 2nd Respondent, I also find that it offends against the limitation period stipulated by Section 1 (a) of the Public Officers Protection Law Cap page 17 Laws of Cross River State 2004 and therefore it is statute barred.
Order 40, Rule 4 of the Cross River State High Court (Civil Procedure) Rules provide thus:
4) An application for Judicial review shall be brought within 3 months of the dote of occurrence of the subject of the application.
Section 1 (a) of the Public Officers Protection Law of Cross River State, Cap 17, 2004 on its part states as follows:
Where any action, prosecution, or other proceeding is commenced against any
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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) Limitation of time
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 a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be of the instance of any person for cause arising while such person was a convicted prisoner, it may be commenced within three months after the discharge of such person from prison;
To progress further, it is imperative to determine the cause of action herein and when it actually accrued.
A cause of action can be described as the aggregate or totality of facts which give the plaintiff or claimant the legal right to sue. OPUTA, JSC described it thus:
It is admittedly an expression that defies precise definition. But it can safely be
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defined as the fact or facts, which establish or give rise to a right of action, it is the factual situation which gives a person o right to judicial relief .,,
See EGBE Vs ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20.
As earlier stated, the appellants approached the trial Court to compel the establishment of a body provided for in Section 17 (1) of the Cross River State Enterprises (privatization) Law thus:
17. Establishment and membership of the State Enterprises Arbitration panel
(1) There is hereby established under this Law an ad hoc body to be known as the State Enterprises Arbitration panel (in this Law referred to as ..the panel?) which shall be responsible for effecting prompt settlement of any dispute arising between on enterprise ond the Council or the Bureou or ony other person or organization involved in the privatization Process.
A calm perusal of the totality of the said law indicates clearly an intention by the Cross River State legislature to provide an avenue for redress for any party injured or aggrieved in the course of the privatization exercise envisaged therein.
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A calm perusal of the said Law, the Cross
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River State Enterprises (Privatization) Law, indicates no time limit for the establishment of the Arbitration Panel provided for in Section 17(1) thereof.
The respondents were duty bound to enforce the laws of Cross River state. The performance deficit or as the case is now, the dereliction cannot be imposed on the citizens such as the appellants. The appellants, attempts to seek legal redress for wrongs said to have been suffered by them as a result of the privatization activities of the respondent had been met by litigation tactics that are diametrically opposed to the intendment of the Cross River State Enterprises (Privatization) Law.
Legal practitioners, acting for the state and its organs must always be mindful that their forensic strategies should never be devoid of morality or inconsistent with governance ethics. Government itself is a trust exercisable with an eye for accountability. where legitimate avenues for redress are blocked via fascistic tendencies masquerading as legalism, alienation develops among the citizenry resulting in growth of nihilism that may degenerate into insurgencies. It must not be encouraged.
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As earlier stated,
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the duty on the respondents to establish the Arbitration Panel envisaged under the Cross River State Enterprise (Privatization) Law is continuous and not time bound.
It therefore seems very clear to me that it is a misconception to bring the action of the appellants within the unrelated and narrow time bound compass of Order 40 Rule 4 and Section 1 (a) of the Public Officers Protection Law, as the duty on the respondents is continuous.
I therefore resolve the lone issue in favour of the appellants against the respondents.
This appeal is meritorious and I accordingly allow it.
The decision of the learned trial Judge in suit No. HC/MISC 124/2011 hereby set aside.
Reliefs 2 and 3 in the application for Mandamus therein are incongruous with the main relief. They are to be canvassed before the envisaged Arbitration panel and are accordingly struck out.
It is therefore ordered that the respondents do forthwith establish the Cross River State Enterprises Arbitration panel under Section 17 of the Cross River State Enterprises (Privatization) Law to consider the grievances of the appellants.
The appellants are entitled to the cost of
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this action assessed at N100,000.00 against the respondents.
Other Citations: (2016)LCN/8867(CA)
