Rasheed Balogun V. Nigeria Custom Services Board & Anor (2002)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
The appellant as plaintiff, before the Federal High Court, Abuja, initiated this action vide a writ of summons filed on the 15th day of April, 1998, whereby he claims the following reliefs:
“1. A declaration that, the letter reference No, NCS/ ABJ/AP & D/94/S.3/736, dated 1st of August, 1996, dismissing him from service is illegal unconstitutional, null and void.
- An order that, he be reinstated as Assistant Superintendent of Customs with payment of all his salaries and allowances from 16th of May, 1996, and without loss of increment, promotions and other privileges, he may be entitled to as Assistant Superintendent of Customs.
Before the filing of pleadings, however, the respondent filed a notice of preliminary objection on the ground that, the action is statute barred, having not been filed within three months, when the cause of action arose as provided for by the Board of Customs and Excise (Amendment) Decree No. 77 1993.
The trial court heard argument of counsel on the preliminary objection and in a considered ruling, delivered on the 13th day of May, 1999, dismissed the action for being statute-barred.
The plaintiff now appellant, dissatisfied with the ruling appealed to this court on one ground to wit:
Ground One:
The learned trial Judge erred in law, when he held that Section 5 (a) (1) of Decree No. 77 of 1993, of the Board of Customs and Excise (Amendment) Decree of 1993, covers any act done by the Board, whether in contract or in tort,
Particulars:
(i) The superior courts of records in this country have consistently interpreted similar statutes as not applying to contract cases.
(ii) A true construction of the section, especially the use of the words “act or negligence” exclusively prove that, the act does not cover contract cases.
As is the practice in this court, both parties filed their respective brief of arguments. It is the appellant’s submission that this appeal depends entirely on the proper interpretation of S.5(A) (1) of Decree No. 77 of 1993, the Board of Customs & Excise (Amendment) Decree of 1993. That the provisions of Laws similar to the above law, have come up before our superior courts for interpretation, on several occassions and the courts have always held that where the action is based on contract the provision is not applicable, relying particularly in the case of NPA v. Construzioni General FSC and Anor. (1974) NCSC 622. where Section 97 of the Ports Act was found to be inapplicable.
It is his argument that, the provision is meant to protect the individual members of the Board its staff and/or agent and does not give any immunity to the Board nor does the immunity granted by the said provisions cover cases of contract of employment.
The appellant urges us to allow the appeal, set aside the decision of the trial and remit the case for trial on the merit before another Judge of the Federal High Court, Abuja.
In his submission, the respondent contended that the intendment of the said provisions is to protect the Nigerian Customs Service Board against any action. That, from the clear and unambiguous provision of the said Decree, the Board assumes responsibility for “any act, neglect or default done or omitted to be done by any officer, servant etc, only when such act, neglect etc, relates to regulations made pursuant to Section 8(1 )(b) of the Decree.”
The respondent further submits that the act complained of by the appellant, the subject-matter of the suit is the dismissal of the appellant by the Board and by the said provisions no action shall be commenced against the Board in respect of a dismissal, unless it is commenced within three months next after the act. That the protection afforded under the provision is to protect both the public officer and the office for any act, neglect or default done or omitted to be done in the course of their duty. That the Board acts through the agency of human beings and/or officers and is therefore covered by the immunity and relies on the case of Ibrahim v. J.S.C. and Ors. (1998) 14 NWLR (Pt.584) 1.
The respondent further submits that the case of NPA v. Construzioni General FCS & Anor: (supra) relied on by the appellant, is not in pari materia with the instant case and therefore, not applicable. That the interpretation ascribed to S .5(A)(1) of Decree 77, must extend to cover acts enumerated under S. 8(1)(b) of the Decree, That since the appellant was out of time in bringing the action we are urged to affirm the decision of the trial court and dismiss the appeal.
For ease of reference, I will produce here under Section 5(A)(1) of the Customs and Excise Decree No. 77 of 1993, which provides:
“Not withstanding anything to the contrary in other law, no action shall be instituted against the Board in respect of any act, neglect or default done or omitted to be done by any officer, servant or agent of the Board in his capacity as an officer, servant, or agent of the Board with regard to the regulations made pursuant to Section 8(1)(b) of this Decree, unless it is commenced within three months, next after the act or negligence complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof.”
Section 8(1)(b) (supra) which is referred to above provides as follows;
(a) Subject to the provisions of this Decree, the Board may, with the approval of the Minister, make regulations relating generally to the conditions of service, including the power to fix salaries and allowances of the staff of the Board and of the department and without prejudice to the generality of the foregoing, such regulations may provide for:
(b) The appointment, promotion and disciplinary control including dismissal of staff of the Board and of the Department.”
The words used in the two sections, appear to be clear and unambiguous, it gives immunity to the Board in an action in respect of any act, neglect or default done or omitted to be done by any officer servant or agent of the Board pursuant to the appointment, promotion, disciplinary control, including dismissal of staff of the Board, if the action is not commenced within three months, next after the act complained of.
There is no other meaning to this law, the golden rule of interpretation is that where the provision of a law is very clear and unambiguous the words contained in them should be given their natural meaning. It relates to actions against the Board in respect of the dismissal of a staff of the Board.
The general principle of law is that, where a statute provides for the initiation of an action within a given time period, no proceedings should be brought after the period prescribed by the statute has elapsed. Any action instituted after the period is said to be, statute barred and any right of the plaintiff to commence the action is said to be extinguished by the said law – Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Obiefuna v. Okoye (1961) 1 SCNLR 144, (1961) All NLR 357.
In this case, the course of action is the dismissal of the appellant, by the Board of Customs and Excise. The letter of dismissal was dated 1st of August, 1996, and the action before the Federal High Court was initiated on the 15th day of April, 1998. His action, applying the above principle, is statute-barred according to the applicable law and there is no other way to it.
The learned trial Judge was therefore, right to have dismissed the suit before him for being statute-barred. This appeal has no merit and thereby, dismiss it in its entirely and affirm the ruling of Auta, J, of 13/5/99, dismissing the appellant’s claim.
I make no order as to costs.
Other Citations: 2002)LCN/1211(CA)
