Shamsideen Abolake Bakare V. Nigerian Railway Corporation (2007)
LAWGLOBAL HUB Lead Judgment Report
M. CHUKWUMA-ENEH, J.S.C
The plaintiff, a former staff of the defendant sued the defendant in the High Court of Lagos State claiming the following reliefs:-
(a) A declaration that the letter references No. EDO.1028/ CON/172 dated 25th January, 1993 and letter reference No. 20663/CON/171 dated 8th of March, 1993 written by the defendant purportedly accepting the notice of withdrawal of service of the plaintiff to remain in its employment is irregular, illegal, null and void and of no effect.
(b) A declaration that the plaintiff’s employment has not been duly determined in accordance with the terms and conditions of his services.
(c) An order reinstating the plaintiff to the post and station without loss of seniority and privilege to contemporaries on officiating capacity in the employment of the defendant.
Having ignited this claim by serving the writ of summons on the defendant, parties filed and exchanged their pleadings. The core of the defendant’s defence as pleaded is the statutory bar in section 83(1) of the Nigeria Railway Corporation Acts, Cap. 323, Laws of the Federation, 1990 (NRC Act) that action shall not be brought against the defendant after 12 months from the accrual of cause of action. The plaintiff contended that sections 8(1)(a) of the Limitation Law of Lagos State, 1994 which provided for a limitation of 6 years instead of section 83(1) NRC Act applied to the matter. Thus implying that the instant case is not statute-barred. The matter eventually went to trial and both parties called one witness a piece. At the end of the day, the trial Court found in favour of the defendant that the plaintiff’s case fell within the ambit and scope of section 83(1) NRC Act and not having been instituted within the limitation period of 12 months of the accrual of cause of action as prescribed by section 83(1) NRC, the action is obviously incompetent. The action was accordingly declared statute-barred and struck out accordingly.
Aggrieved by the decision the plaintiff appealed to the Court of Appeal arguing in the main that the cause of action fell within the purview of section 8(1)(a) of the Limitations Law of Lagos State, Cap. 118 as against section 83(1) NRC Act upon which the decision of the trial Court was grounded. The Court of Appeal (Court below) in a considered judgment unanimously upheld the decision of the trial Court as correct and the plaintiff’s action was held statute-barred.
The decision of the trial Court was thus affirmed. The plaintiff still feeling aggrieved by the decision of the court below finally appealed to this Court upon a notice of appeal dated 12/2/02 and therein has raised 3 grounds of appeal against the decision of the court below. In this court the plaintiff is the appellant and the defendant, the respondent. The parties have filed and exchanged their briefs of argument in compliance with the rules of this Court. The appellant in his brief of argument filed on 7/3/2000 has identified 3 issues for determination as follows:-
“1. Is the termination of the contract of employment of the appellant within the purview of section 83(1) of the defendant Act, Cap. 323, LFN, 1990
- Better still, what is the exact extent of section 83(1) of the Nigerian Railway Corporation Act, Cap. 323, LFN, 1990
- If the answer to issue No.1 is no, what order should this Honourable Court make in the circumstances
The respondent also filed its respondent’s brief of argument on 6/08/02 and has distilled 3 issues for determination thereof, which are identical with the 3 issues identified in the appellant’s brief of argument. Short of so stating, it literally adopted the appellant’s 3 issues for determination in substance that it serves no use replicating them here. The appellant has in view of the invitation from him to overrule by this court’s earlier decision in NBC v. Bankole (1972) NSCC (Vol. 7) 220 applied for a full court to be constituted to hear and determine the instant appeal. And the court was so constituted. Before us the parties have adopted and relied on their respective briefs of argument. Nothing outside their respective briefs of argument has been urged at the oral hearing of the appeal. The facts of this matter are not in dispute and they are clearly and fully stated at p. 112 of the record from which they have been culled as follows:
“The plaintiff/appellant was employed by the defendant/ respondent on the 1st of July, 1975 as “A”. He was still in the respondent’s employment at its Divisional Office, lbadan when on the 16th November, 1992 he gave the respondent 3 months notice of his intention to withdraw his services as per exhibit C. Before the expiration of the notice the appellant changed his mind and on the 14th of January, 1993 wrote a letter of cancellation of this notice of intention to withdraw his service. See: exhibit D. On the 10th February, 1993 the respondent through its Divisional Manager (West), Ibadan accepted the cancellation. See exhibit F. On 15th of March, 1993 the plaintiff received another letter dated 8th March, 1993 from the Divisional Manager which has attached thereto a letter dated 25th January from the respondent’s Headquarter approving his withdrawal from service and regarded him as having left the service on his own volition. The appellant has commenced this action against the respondent as per the above claim.”
Appellant arguing issues 1 and 2 together and having referred to provision of section 83(1) of NRC Act has contended that the termination of the appellant’s contract of employment with the respondent cannot be said to come within the said provision; not even if one has to rely upon the construction put on a similar provision as per section 61(1) of the Nigerian Broadcasting Corporation Act (NBC Act) as construed in the decision in Nigerian Broadcasting Corporation v. Bankole (1972) N.S.C.C. (Vol. 7) 220 (NBC’s case).
It is submitted that the facts and circumstances in NBC’s case differ substantially from the instant case and so the principle emanating from the construction put on section 61 (1) by the Supreme Court should not bind this court in the construction of section 83(1) of the NRC Act. The appellant further submits that the Court below in construing the provision of section 83(1) has relied even then upon some other extraneous provisions of the N.R.C. Act leading it to the erroneous interpretation that section 83(1) (supra) applied to the appellant’s conditions of employment and so, bringing it within the direct pursuance of the execution of the respondent’s statutory duty.
It is the case of the appellant that it cannot be right that the provisions of section 17(2)(g)(i) and (ii) and section 48 of the NRC Act which the appellant regards as irrelevant and extraneous materials not helpful for arriving at the true meaning of section 83(1) (supra) have, as it were, been conjured up in construing self same section 83(1) of the NRC Act, with the result that upon the community reading of the aforesaid provisions and section 83(1) the court below has been misguided into holding that section 83(1) NRC Act is applicable to the appellant’s contract of employment with the respondent and to the untenable conclusion, that the instant action founded on it is statute-barred.He further submits that the provision of section 83(1) (supra) being clear and unambiguous should not otherwise be construed to lead to injustice as the injustice occasioned to the appellant in this respect. See Ebiriuku v. Ohanyerenwa (I959) SCNLR 146; (1959) FSC 212 and Nabhan v. Nabhan (I967) All NLR 47 and so has submitted that, section 17(2)(a)(i) and (ii) should not be used to clog the clear and unambiguous construction of section 83(1)(supra).
The position in this regard is contrasted with the position in NBC’s case and according to the appellant to highlight their dissimilarities. See Ifezue v. Mbadugha (1984) 1 SCNLR 427 and Toriola v. Williams (1982) 7 SC 27. The appellant has therefore berated the Court below for resorting to section 17(2)(g)(i) and (ii) and section 48(1) of the NRC Act vis-a-vis the respondent’s contention of construing the act of terminating the appellant’s employment as an act done by the respondent in the “execution or intended execution of its statutory duty”. It is posited that the instant contract being one of master and servant at common law is completely outside the purview of section 83(1) NRC Act: again, in the sense that it is not an act done in the execution of the respondent’s statutory duty. In these circumstances, it is submitted that the case of NBC v. Bankole (supra) cannot be a binding authority to apply to the instant case on its peculiar facts, and so, the respondent had acted wrongfully in terminating the appellant’s employment. Furthermore, it follows therefore that the matter cannot be affected under section 83(1) of the NRC Act by the provision to commence this action within 12 months; otherwise meaning that it is statute-barred.
On issue 3: the appellant has opined that the proper course to do justice in the matter is to uphold the appellant’s claim or order a retrial de novo.
On the application made pursuant to section 6(5)(4) of the Supreme Court Rules, 1985:
The appellant has invited this court to overrule its earlier decision N.B.C. v. Bankole (1972) NSCC (Vol. 7) 220 which interpreted a similar provision as per section 61(1) of the NBC Act in pari materia with the provision of section 83(1) of (NRC Act) and which held to the effect that section 61(1) (supra), “applies to and affords protection to all acts done in the circumstance contemplated by that section;” in other words, including contracts of employment as the instant one before this court. The appellant argues that to so interpret section 61(1) (supra) is too wide and has the potential of leading to miscarriage of justice as indeed it has occasioned in this case in the guise of furthering executing and intended executing of a statutory duty. It is submitted that the principle of law in NBC’s case is no longer good law as it is an instrument of oppression and injustice and should be done away with. He refers to Adisa v. Oyinwola (2000) NWLR (Pt.674) 116, (2000) 10 WRN 125 where this Court was invited to overrule Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198, Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151 and Oyeniran v. Egbetola (1997) 5 NWLR(Pt. 504) 122 this is so, as it serves as an instance of this Court rising to the occasion to overrule its decision on grounds of interest of Justice. See Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17; Bucknor-Mclean v. lnlaks (1980) 8 SC 1; Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162. In the last cited case this court laid down the guides as when to overrule its previous decisions, it is submitted. That is to say, that the decision was wrong or erroneous in law or that it was given per incuriam or that it has become an instrument of injustice. Upon any of the foregoing grounds, the court is urged to move towards more acceptable, purposeful and pragmatic interpretation of section 83(1) of NRC Act and save section 85(1) (supra) from becoming a monster to itself and an instrument of injustice. See Adisa v. Oyinwola (supra).
The respondent in response to the appellant also on issues 1 and 2 argued together has submitted that the appellant has misconstrued the terms – Act, law, public duty and authority as used in section 83(1) of the NRC Act. It submits that by the provision of section 83(1) of the NRC Act, the respondent has been given authority to maintain and regulate matters pertaining to its staff and more, in regard to the exercise of the power to make rules and regulation to guide the employment and conditions of service of its staff and so, it is argued that the appellant’s employment is clearly subject to the NRC Act. It has relied on the trial court’s findings that the termination has been done in pursuance or execution or intended execution of such Act, law, duty or authority to submit that the act of termination is covered under section 83(1) NRC Act. See Santana Medical Services v. N.P.A. (1999) 12 NWLR (Pt. 630) 189 at 191 – 192, Adelekan v. Nigeria Ports Authority (1968) NCLR 408; and in this regard the court below has not been faulted by the appellant. Referring to the case of NBC v. Bankole (supra) the respondent contends that the court construed section 61(1) of the Nigerian Broadcasting Corporation Act very similar to section 83(1) of the NRC Act and held it applies to rights exercised at common law or in contract. This court is urged to be guided by that decision. The respondent also has adverted to the case of NPA v. Construzioni General Farsura Cogefar SPA (1974) 1 All NLR 463 which construed section 97 Nigerian Ports Authority Act (NPA Act) of similar provision to section 83(1) of NRC Act and which came to the conclusion that the provision of the said section 97 of the Nigerian Ports Authority Act (NPA Act) does not apply to cases of breach of contract. He submits that the two cases are not on all fours. This case, he submits, is of master and servant relationship based on a contract of employment while the NPA’s case is one of building contract for the Second Apapa Wharf Extension in involving, an independent contractor under a specific contract. It has all the same, been submitted that NBC’s case is still good law. See Santana Medical Services Ltd, v. NPA (supra). On the submission of the appellant that the court below acted in error in construing together sections 17(2)(g)(i) and (ii) and 48 of the NRC Act with 83(1) of the NRC Act, the respondent has posited that the court below has power to take into consideration other provisions of the NRC Act in construing section 83(1) of the Act and to take judicial notice of all laws that will be helpful to it in resolving the matter before it and rightly has done so here. On the interpretation of section 83(1) the respondent submits that the provision is clear and unambiguous and should be given its ordinary and grammatical meaning unless some manifest absurdity is thereby occasioned – which is not the case. See Toriola v. William (supra). On issue 3: replying to the submission that because this case bordered on a breach of contract that section 83(1) of the NRC Act does not apply, he submits that it is not every contract that is outside section 83(1) of NRC Act and refers to the cases of NPA v. Construzioni General Farsura Cogefar SPA (supra). It is submitted that the view expressed in the cited case is too wide as it should not apply to a contract of master and servant as in this matter. He points out that the finding of the trial court to the effect that the termination complained of was not in breach of the Act but in exercise of statutory powers or authority given to the respondent by the Act. In opposing the application brought under section 6(5)(4) of the Supreme Court Rules; the respondent has referred to occasions when this Court can overrule itself and to submit that those features to ignite it’s power are not present in this matter to warrant overruling the decision in NBC v. Bankole (supra). And even moreso, the appellant on whom lies the burden on this point has not showed that any of the factors to ground the application in that regard is present in this matter. See Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Oduye v. Nigerian Airways Ltd. (1987) 2 NWLR (Pt. 55) 126; Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296.
And even then, specifically, that nothing as injustice or error perpetuated by not overruling the ratio in N.B.C. v. Bankole has been made out. Alleging that indiscriminate termination would result if not overruled is speculative and not tenable, the appellant has submitted. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Abakaliki Local Government Council v. Abakaliki Rice Mills Owners Enterprises of Nig. (1990) 6 NWLR (Pt. 155) 182 and Obaba v. Military Govenor, Kwara State (1994) 4 NWLR (Pt. 338) 326. Finally, it is submitted that court should exercise this power in deserving cases only and not in regard to this matter.
The court is urged to dismiss the appeal for want of merit and affirm the decision of the courts below.
I have taken a close look at the three issues formulated by the appellant in his brief of argument. The respondent has more or less adopted them. I think I should point out early enough that issue one appears to be gulped up by issue which in my view is too wide in its purport. Issue one on the other hand has rightly narrowed the question to be discussed with regards to the termination of the appellant’s employment with the respondent to the cause of action in this matter.
The appellant’s grouse in this matter in a nutshell is with the construction which the Court below placed on section 83( 1) of the NRC Act vis-a-vis the instant cause of action. Particularly, it is argued that the wrongful act of terminating the appellant’s employment is not one that can come within the provision of section 83(1) of the NRC Act. In other words that the act complained of does fall within ambit of.
” …. any act done in pursuance or execution or intended execution of any act or law, or of any public duty or authority … ”
Meaning, in effect, that any act not done in pursuance or execution or intended execution of any act or law or of any public duty falls outside of section 83(1) of the NRC Act. So, to put this finding in the words of the Court below and it respectfully held thus:
“As a corollary any act which is outside the category of acts set out in the section is outside the statute and will not enjoy the protection afforded by the section. See Omotayo v. NRC (1992) 7 NWLR (Pt. 254) 471.”
In other words, such act would not be caught by the period of limitation of 12 months as prescribed in section 83(1) of NRC Act, that is within which period of time a plaintiff, as the appellant here has to seek redress for any breach of his right in a Court of law.
Let me at this stage examine the definition of limitation of action which is the pit of this matter. Limitation of action is the principle of law requiring the plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. This principle is used as a defence in actions in tort and contract amongst other actions. The law requires that it must be sufficiently pleaded or otherwise it is deemed to have been waived. See 28 Halsbury Laws of England, 4th Edition. P 408 et. seq; and UBRBDA v. Alka (1998) 2 NWLR (Pt. 537) 328.
It should be noted that the provision of section 83(1) of the NRC Act is identical to the provision of section 2 Public Officers Protection Act which has been dealt with in numerous cases including Yare v. Nunka (1995) 5 NWLR (Pt. 394) 129, and Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1. The same is true in the case of section 61 of the Nigeria Broadcasting Corporation Act (NBC Act) which has been interpreted in the case of Nigerian Broadcasting Corporation v. Bankole (1972) NSC 220. Furthermore, the Court has had the opportunity of construing section 12(1) and (2) of the Nigerian National Petroleum Corporation Act, Cap. 320, Laws of the Federation giving protection in this regard not only to the Corporation itself but any member of the Board of the Corporation or an employee. It also provides that no action shall lie against these persons for any “act done in pursuance or execution of any Act or law or any public duties or authority “like in the instant section 83(1) of the NRC Act being construed here it has been construed in the case of Eboigbe v. N.N.P C. (1994) 5 NWLR (Pt. 347) 649. For purposes of presenting a holistic background to this matter, I have also to advert to the case of Nigerian Ports Authority v. Construzioni General Farsura Spadanor (1974) 12 SC 69 which construed section 97 of the Ports Act as the respondent has highlighted it in its brief of argument. Ibekwe, JSC (of blessed memory) in the cited case said:
“We too are of the opinion that de Comarmond SP has quite rightly stated the law in the passage of his judgment cited above” i.e. as Salako v. LE.D.B. & Anor:(20 NLR 169) which construed S. 2 of the Public Officers Ordinance. What was in issue in the above cited matter concerns pre-action notice of no relevance to this matter. I see no need to go into any further discussion of it here.
Before going into the question of construing section 83(1) of the NRC Act, I must state that I have not tried here to take for granted or gloss over the questions arising from the relationship of master and servant as between the parties and the cause of action as per the appellant’s statement of claim.
This is so in that to deal with this matter within the ambit of master and servant, the only way it can be resoundingly achieved is firstly by the establishment of the fact of employment of the appellant by the respondent and the breach of the terms and conditions of the same. Permit me to go a bit into this matter by stating that the appellant’s case in the court below is that there is a contract of employment between the parties. See paragraphs of 6 and 7 statement of claim. It is alleged that it is the two letters complained of that have prevented the appellant to continue working and thus have led to the breach of the instant contract of employment and so section 83(1) of the NRC Act does not apply as it is not an act done in pursuance of intended execution of a statutory duty. Furthermore, that being a master and servant relationship any infraction of the contract is a breach. The respondent has submitted that if there is a breach of contract it is in the nature of breach of contract of employment by way of termination and so section 83(1) of the NRC Act has to apply to govern the relationship.
The trial court found that the cause of action was the termination of the appellant’s employment and so subject to section 83(1) of the NRC Act. It is against the foregoing background that one has to examine the relationship of the parties and what is the cause of action.
It is settled and I will cite all the same a number of cases in support that the only place to look for it is the statement of claim. Cause of action is made up of two factors, that is, the wrongful act of the defendant and the consequential damage occasioned to the plaintiff.
See: Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt. 359) 676, Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176: Union Bank of Nigeria Ltd. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt. 240) 228. It is on these premises that the court below said at pp. 140 to 141 of the record thus:
“In other words, it is the alleged breach of the terms and conditions of service which is the foundation of the plaintiff/appellant’s case. Refusal to allow the appellant to remain in employment is an all-shoot of the alleged breach. This in my view, brings the plaintiff/appellant’s case within the purview of master/servant relationship for there is no way by which the case can be established without proof of fact of employment and the breach of the terms and conditions of same. I therefore reject the argument of the respondent that refusal to allow the plaintiff/appellant to remain in the employment is the main complaint of the plaintiff/appellant.”
I agree with the foregoing reasoning and findings and I approve the same as a proper statement of the law in this regard.
However, it appears to me from the state of the submissions on the issues for determination in this court, from both parties and as clearly articulated in their respective briefs of argument and upon the findings on these issues as per the decision of the court below that the cause of action has arisen from the breach of contract of appellant’s employment that is say in the relationship of master and servant based on the terms and conditions of the appellant’s employment. The respondent has not cross-appealed any of the above findings by the court below on the master and servant relationship as between the parties nor on the findings as to the cause of action in this matter as found by the Court below. These questions should therefore not be flogged any further.
In the premises, this takes me to the question of whether the instant action is caught by the provision of section 83(1) of the NRC Act and therefore statute-barred having been instituted outside 12 months of the accrual of cause of action. In this regard, the appellant has posited that it is section 8(1)(a) of the Limitation Law of Cap. 118, Laws of Lagos State, 1994 that applies to this case in contradiction to section 83(1) of the NRC Act as otherwise submitted by the respondent.
It must be noted that the court below found that it is section 83(1) of the NRC Act that is applicable to this matter and not section 8(1)(a) of the Limitation Law of Lagos State, 1994. This finding not having been challenged on appeal to this court is final. The appellant’s argument in this regard is not predicated on any ground of appeal before this court and it is to that extent otiose and should be discountenanced. See Okelola v. Boyle (1998) 2 NWLR (Pt. 539)533 SC. There is however, the finding of the court below on the issue of whether or not the instant action is statute-barred at pp. 144 – 145 of the record starting from the last paragraph at 144 as follows:-
“The writ was taken out on 25th August. 1994. The letter complained of although dated 8th March, 1993 came to the knowledge of the plaintiff/appellant on 15th March, 1993. The writ, undoubtedly, was taken out far in excess of the twelve-month period prescribed by section 83(1) NRC Act. The claim is therefore statute-barred” .
I think I should firstly dispel the erroneous impression created at P. 4 LL 1 -3 of the appellant’s brief of argument wherein he has submitted that a clause in the provision of section 83(1) NRC Act, that is to say, ” … any act done in pursuance or execution or intended execution or of any, act or law or of any public duty”, given its proper meaning takes the case outside section 83(1) as the respondent’s termination of the contract of employment cannot be said to be an act in pursuance or execution or intended execution of any Act or law or of any public duty, and to say respectfully that it is settled that it is the entire section 83(1) NRC Act that has to be read together as whole to get to the meaning of the section as the section in that truncated form should not be construed in bits and pieces. See: S.P.D.C. v. Isaiah (1997) 6 NWLR (Pt. 508) 236; Omoijahe v.Umoru (1960) 6 NWLR (Pt. 6 14) 178 at 188. It is trite that a statute should be construed as a whole and should be given an interpretation consistent with the object and general con of the entire statute. The provision of section 83(1) of the NRC Act is reproduced as follows:-
“No suit against the Corporation or any servant of the corporation for any act done in pursuance or execution or intended execution of any Act or law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of such Act or law, duty or authority, snail lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect, or default complained of or in the case of a continuance of damage injury, within twelve months next after the ceasing thereof.
Provided that, in the case of a claim for a refund of an overcharge in respect of goods accepted by the Corporation for carriage, or for compensation in respect of loss, damage, deviation, misdelivery, delay, or detention of or to any goods so accepted, the cause of action shall be deemed to have arisen on the day of such acceptance”.
The forgoing provision of section 83(1) of NRC Act is plain and unambiguous and it is settled that in that vain the words have to be “given their ordinary and natural meaning and that unless the meaning leads to absurdity it is unnecessary to resort to other canons of interpretation.
It is also the case that this court faced with the construction of a statutory provision in pari materia with one that has been previously construed by this court, it has to follow the principle laid down in the earlier case see Mobil Oil Plc v. IAL 32 Inc. (2000) 6 NWLR (Pt.659) 146; (2000) FWLR (Pt. 10) 1632 at 1640. In this regard, I have to advert to the decision in NBC’s case in so far as the principle of interpretation enunciated in that case applies here.
I agree with the respondent that the appellant has totally misconstrued the words: act, law, public duty and authority as per the enabling Act which created the respondent and has given it duties and authority including the power to make rules and regulations inter alia to guide employment of its staff and contracts with other persons. This is evident as per the provisions of section 17 and 48 of NRC Act and even moreso from the appellant’s averments as per paragraphs 6 and 7 of the statement of claim. Paragraphs 6 and 7 as follows:-
- It was an express term and conditions of service of the defendant that any of its employees could withdraw their services at the expiration of 3 months notice given by the employee.
- It was also an express term and condition of service of the defendant that employment of staff may be determined by notice in writing from either side.”
It is evident from the foregoing averments of the existence of rules and regulations in particular governing employment of its staff, and which rightly governs the instant contract of employment of the appellant. Therefore, to achieve a sensible meaning of section 83(1) and other provisions of the NRC Act it has to be read along with the section 17(2)(g)(ii) and section 48 to arrive at an interpretation which is otherwise consistent with the object and general con of the entire statute. See S.P.D.C. v. Isaiah (supra). Section 17(2)(g)(ii) provides:
“Subject to the provisions of this Ordinance and the Corporations Standing Tender Board Act. 1968 the powers conferred by sub-section (1) shall include all such powers as are necessary or advantageous and proper for the purposes of the Corporation and in particular but without prejudice to the generality of the foregoing sub-section or the board, shall include power:
(g) to enter into agreements with any person
(ii) for the performance or provision by that person if any of the services or facilities which may be performed or provided by the Corporation.”
Section 48 of the NRC Act provides:
“The Corporation may make regulations determining generally the conditions of service of servants of the Corporation and in particular, without prejudice to the generality of the foregoing power, may make regulations relating to (a) the appointment, dismissal, discipline hours of employment, pay and leave of such servant.”
If I may come properly to the construction of the foregoing provisions they are plain and clearly unambiguous and the words used thereof ought to be given their ordinary, grammatical and natural meaning. In fact, I do not share with the appellant the unfounded apprehension indeed the misgivings being entertained over a community reading of these provisions. It is the most sensible thing to do in order to achieve an interpretation of section 83(1) of the NRC Act that is consistent with the object and general intendment of the entire statute. The foregoing provision of section 83(1) in particular refers to acts done in pursuance of statutory duty as regards any neglect or default. And if I may reiterate any act not within the purview of the provision is outside the Act and is not afforded any protection under the Limitation Law. The point which the appellant has rightly taken here on construing section 83(1) in isolation is that the instant master and servant relationship may be one known at common law or not covered by statute that is, not within any act done in pursuance of statutory duty by the respondent. This will negate all known principles or interpreting statutory provisions. Surely, a community construction of section 83(1), 17 and 48 of the NRC Act gives a robust expression of the statutory duty and power of the respondent under the Act as gathered from the con of the entire statute.
Section 17 is quite explicit that the respondent is given the power to make rules and regulations regulating staff appointment and employment and furthermore as pertaining to the conditions of service of the respondent’s staff. The long and short of it is that it also is clothed with the statutory power to make conditions of service as to the appointment, discipline and dismissal of its staff as per section 48. To this end, the relationship between the parties cannot simply be one of master and servant at common law as it comes within the ambit of the foregoing statutory provisions as an act done under statutory authority and as averred in paragraphs 6 and 7 of the statement of claim there are materials on the ground or staff’s conditions of service in place. This being the case the relationship of the parties is therefore subject to section 83(1) and (2) of the NRC Act. Thus giving effect to the principle laid in NBC’s case. So for the instant action to enjoy the protection of section 83(1) it must be commenced within 12 months of the accrual of cause of action. Otherwise it is statute-barred.
Therefore, there is no gainsaying that N.B.C. v. Bankole is still good law. This conclusion naturally follows from my reasoning above.
What has emerged from a community reading of the three provisions , that is, of section 83(1), along with section 17(2)(g)(ii) and section 48, if I may recall, makes it abundantly clear the respondent has the power to enter into agreements with any person for the performance by that person of any services, duties, facilities being performed by the respondent. It can also make rules and regulations on the general conditions of service of its servants. There can be no doubt therefore, that it has the power to enter into a contract of employment and did so enter here, the breach of which is the object or this action. By the averment in paragraphs 6 and 7 of the statement or claim (reproduced herein) and supported by evidence given at the trial court, the instant contract of employment is undeniably governed by section 83(1) of the NRC Act. And I so hold.
The next question is whether the action is statute-barred. I have no hesitation in holding in the affirmative. It is common cause between the parties that the letter complained of and the cause of action is dated 15/3/93 when this action commenced on 15/6/93 that is over 12 months of the accrual of cause of action as prescribed by section 83(1) of the NRC Act. The action is definitely statute-barred.
And again I so find.
This court has been invited pursuant to section 6(5)(4) of the Supreme Court Rules, 1985 to overrule its decision in Nigeria Broadcasting Corporation v. Bankole (supra) (NBC’s case) which construed section 61(1) of the NBC Act in pari materia with the instant section 83(1). The appellant is particularly irked by the finding in this case (N.B.C’s case) that it “applies to and affords protection to all acts done in the circumstances contemplated by that section”
and by extension, including breach of contract of employment.”
It is contended that such a wide interpretation is a ready tool for “mischievous employers in these era of rising unemployment to back an indiscriminate termination without regard to the parties of the case.” It is submitted that Eperekun v. University of Lagos (supra) has laid down the guidelines to guide the exercise of this power. Where this court is minded to overrule its previous decision. It must be showed according to the cited case that the earlier decision is wrong or erroneous in law or that it is per incuriam or that it has become an instrument of injustice. The appellant has urged this court to follow in this regard the footsteps in Adisa v. Oyinwola (supra) where this Court has overruled it’s earlier decisions as showed herein.
It is alleged that section 83(1) of the NRC Act has turned into a monster not only to itself but also has become an instrument of injustice as in the instant case. The respondent has submitted in response to the application to overrule the ratio in NBC’s case that the appellant has not discharged the burden of identifying any factors as per Eperekun v. University of Lagos (supra) to ground the application. And moreso that the application is highly speculative and so has urged the Court to decline the invitation and dismiss the application.
I think that the conclusion I have reached in this matter which tolls a death knell to the application and which in addition as submitted by the respondent is founded-on speculation. In whatever respects the instant section 83(1) NRC Act has become an instrument of injustice and oppression are not matters to be treated lightly and it is a serious matter and respectfully cannot be rested on an empty grousing of the appellant. This court cannot pronounce on an academic or speculative matter and has said so on numerous occasions. See Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462 at 483 and Ivienagbor v. Bazuaiye (1999) 9 NWLR (Pt. 620) 552 at 561. On this ground alone, in the absence of any solid material grounding this application it is a non-starter and being baseless it is refused and hereby dismissed. On the whole I do not find any merit in this appeal. I therefore dismiss it with N10,000.00 costs in favour of the respondent.
SC.51/2002
