Nigerian Ports Authority Vs Abu Airadion Ajobi (2006)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the High Court of Justice holden at Warri, the plaintiff’s claims as endorsed on the amended writ of summons read thus: –

“(i) Declaration that the trial of plaintiff by the Disciplinary Panel/Tribunal set up by the defendant to investigate matters involving fraud and other associated criminal offences allegedly committed by the plaintiff is ultra vires the defendant, null and void.

(ii) Order setting aside the findings made by the said Disciplinary Panel Tribunal wherein the plaintiff was found guilty of committing fraud and other associated criminal offences.

(iii) An order compelling the defendant to pay to plaintiff all the entitlements including pension and gratuity forfeited by the defendant consequent upon the findings of the said tribunal/panel.

In the Alterative

(iv) An order reinstating plaintiff in the employment of the defendant authority.

(v) An order that the plaintiff’s salaries from September, 1984 until the date of judgment be paid to him by the defendant authority.”

After the filing and exchange of pleadings, the case proceeded to trial. The plaintiff gave evidence for himself he was cross-examined and closed his case. The case was then adjourned for the defence. The defendant now filed a motion on notice praying the court for an order-

“Dismissing this suit on the ground that by section 97(1) of the Ports Ordinance Cap. 155 Laws of the Federation of Nigeria, 1958 and section 110(1) of the Ports Act, Laws of the Federation 1990 Cap. 361 the action is statute barred.”

The motion was supported by an affidavit and the defendant filed a counter-affidavit in opposition. The motion was argued and in a reserved ruling, the learned trial Judge concluded as follows –

“It was agreed on both sides that at the time of the purported dismissal of the respondent (meaning defendant), he was still standing trial in a criminal charge brought by the applicant (meaning defendant). Learned counsel for the respondent submitted that the respondent could not have taken out this action while the criminal case against him was still pending and that time began to run as from the date the criminal trial terminated in favour of the respondent. I agree with this submission because at the time of the purported termination of the appointment of the respondent, he was not in a position to determine whether or not the criminal case will terminate in his favour. For the foregoing reasons I hold that the application lacks merit and it is accordingly dismissed. No order as to costs.”

Aggrieved by the ruling, the defendant appealed to the Court of Appeal holden at Benin City. The only issue submitted for resolution was:-

“Whether the suit of the respondent (plaintiff) was not statute barred having regard to the provisions of section 97(1) of the Ports Ordinance Act Cap. 155 Laws of the Federation of Nigeria, 1958.”

In a unanimous judgment, the Court of Appeal allowed the appeal in part only. The lead judgment concluded as follows-

“In the result, I hold that legs (i), (ii) and (iii) of the plaintiff/respondents claims are statute barred and they are accordingly dismissed. On the other hand, I hold that legs (iv) and (v) of the claims are not statute barred in that they were filed within twelve (12) months of the act complained of. These legs of the claim are therefore valid. I therefore order that the trial in respect of legs (iv) and (v) of the claim should proceed. In conclusion I hold that the appeal partially succeeds in that the first three legs of the claim are dismissed in that they are statute barred while the trial in respect of the two remaining legs should continue. I make no order on costs. ”

Still aggrieved by the decision of the Court of Appeal, the defendant has further appealed to this court. There is no cross-appeal. Parties filed and exchanged briefs of argument in obedience to the rules of court. These were adopted by counsel at the hearing of the appeal. Only one issue was submitted for determination in the appeal.

It reads-

“Whether the learned Justices of the Court of Appeal were right in holding that the claims of the plaintiff for reinstatement and payment of the salaries could only arise after plaintiff was discharged by the Magistrate Court of the criminal charge preferred against him.”

The issue directly arose from the Court of Appeal’s interpretation of section 97(1) of the Ports Ordinance Cap. 155 Laws of the Federation of Nigeria, which is in pari materia with section 110(1) of the Ports Act, Laws of the Federation 1990. The section reads –

“When any suit is commenced against the Authority or any servant of the Authority for any act done in pursuance or execution, or intended execution of any act or law or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such Act, law, duty or authority such suit shall not lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect, or default complained of, or in the case of a continuance of injury or damage, within twelve months next after the ceasing thereof” (emphasis mine).

This appeal, being an interlocutory appeal, care must be taken not to comment on any issue or issues yet to be decided or tried in the substantive suit. I intend therefore to be brief.

A summary of the undisputed facts of the case is that the plaintiff was an employee of the defendant. The plaintiff was accused of acts bordering on fraud in the course of his official duties. The defendant reported the matter to police for investigation. The police on completion of their investigation arraigned the plaintiff before a Magistrate Court. He was tried and found not guilty, discharged and acquitted of the charge preferred against him. This was on 23/12/1985. The plaintiff then applied to the defendant for reinstatement (see exhibit E). This was refused. The plaintiff thereafter proceeded to issue and file his writ of summons herein against the defendant on 22/9/1986 which time is clearly within twelve (12) months of the discharge by the Magistrate Court on 23/12/1985 vide exhibit D, and as prescribed by section 97(1) above.

It is important to state here now that while the trial in the Magistrate Court was still pending and in progress, the defendant had purportedly dismissed the plaintiff from its employment vide its letter dated 6/12/1984 (see exhibit B) It was therefore contended by the defendant in the lower courts and in this court that the plaintiff’s cause of action arose from the date of his dismissal by the defendant on 6/12/1984 and not from the day of his discharge and acquittal by the Magistrate Court on 23/12/1985. Consequently therefore under section 97(1) of the Ports Ordinance (supra) the plaintiff ought to have instituted his action within twelve months of the occurrence of the cause of action i.e. 6/12/1984. That the plaintiff filed this action twenty-one and a half (211/2) months after his dismissal by the defendant/appellant. The suit was therefore statute-barred. It was also submitted that the Court of Appeal was wrong when it held that the plaintiff’s claims for reinstatement and payment of salaries could only arise after his discharge in the Magistrate Court because the plaintiff’s cause of action arose from his dismissal by the defendant and not from his trial in the Magistrate Court. We were urged to allow the appeal and ‘dismiss the suit.

The plaintiff on the other hand contended that in deciding when time started to run against him in respect of reliefs or claims (iv) and (v) subject matter of the appeal, the court should have regard to the facts and be guided by the observation of this court in the case of Fadare & Ors. v. Attorney General of Oyo State (1982) Vol. 13, N.S.C.C. 62 at 80; (1982) 4 S.C. 1 at 25 to the effect that- “Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.”

In other words, time will start to run when all the facts which constitute the plaintiff’s cause of action arose.

That in this case the plaintiff needed evidence amongst others to prove that he was discharged and acquitted of the offences on which his dismissal was based. And that being the case time started to run when the plaintiff was discharged and acquitted on 23/12/1985. The Court of Appeal was therefore light in its decision. The Court was urged to dismiss the appeal.

This appeal as indicated earlier relates only to claims or reliefs (iv) & (v) of the amended writ of summons above. As also earlier indicated there is no cross-appeal.

Now, applying the law as declared by this court in Fadare & Ors. v. Attorney General of Oyo State (supra), I have no hesitation in agreeing with plaintiff’s submissions above and in coming to the conclusion that the Court of Appeal was right in holding that claims (iv) and (v) above, are not statute barred (see also Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1. The claims or reliefs should proceed to trial with utmost despatch. The suit was filed twenty (20) years ago. The case is remitted to the High Court, Warri for continuation of trial before Bazunu, J. or in his absence, a fresh trial before another Judge as may be directed by the Chief Judge of Delta State. The plaintiff/respondent is awarded costs of N10,000.00 against the defendant/appellant.

PRONOUNCEMENT: (Section 294(2) of the Constitution) Hon. Justice I.C. Pats-Acholonu who participated in the appeal agreed at the conference that the appeal be dismissed.

SC.402/2001