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NIGERIA PORTS AUTHORITY
ABU AIRADION AJOBI
COURT OF APPEAL BENIN DIVISION
5TH JULY 2000
BEFORE THEIR LORDSHIPS:
SUNDAY AKINOLA AKINTAN,
SAKA ADEYEMI IBIYEYE
KUMAI BAYANG AKAAHS
Mr. Dafe Akpedeye- for the appellant
Mr. M. A. Asugo- for respondent
EMPLOYMENT AND LABOUR LAW
GOVERNMENT AND ADMINISTRATIVE LAW
PRACTICE AND PROCEDURE – ACTION – Ground of Appeal – whether issue not arising therefrom is competent – if issue found incompetent – effect of.
PRACTICE AND PROCEDURE – ACTION – When limitation law begins to run
SUNDAY AKINOLA AKINTAN, J.C.A. (Delivered the leading judgment)\
This is an appeal against an interlocutory ruling delivered by Bazunu, J. on 22nd May 1995 at Warri High Court in Suit No. W/178/86. The present appellant, Nigeria Ports Authority, was the defendant in the case while the present respondent, Abu Airadion Ajobi, was the plaintiff. The plaintiff’s claim as endorsed on the writ of summons is as follows:
“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 plaintiff is ultra vires the defendant’s powers, null and void.
iii. An order compelling the defendant to pay to plaintiff all his entitlements including pension and gratuity forfeited by the defendant consequent upon the finding of the said Tribunal/Panel.
2.2. Following an order of court the plaintiff amended his writ of summons to include two alternative reliefs viz:-
Pleadings were filed and exchanged and the defendant thereafter filed a motion in which it prayed 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 with a 7 paragraph affidavit deposed to by Solomon Ekomafe, law clerk in the law firm of Akpedeye and Co. The main facts relied on are set out in paragraphs 4, 5 and 6 of the affidavit. The said paragraphs read as follows:-
“4. That the plaintiff/respondent was dismissed from his employment by the defendant/applicant on 6/12/84 vide the letter of dismissal dated the 6/12/84. The defendant/applicant shall ask the court to make use of the said letter already in evidence as Exhibit ‘B’, at the hearing of this motion.
The motion was opposed. To that end, a 16 paragraphs counter affidavit deposed to by the plaintiff was filed. The facts relied on in defence are set out in paragraphs 8, 9, 10, 11, 12 and 14 of the counter affidavit. The said paragraphs 8, 9, 10, 11, 12 and 14 read as follows:
“8. That during the pendency of the criminal trial a Disciplinary Tribunal set up by the defendant/applicant invited and tried me for the same offences for which I was standing trial at the Chief Magistrate Court Warri.
The motion thereafter came up for hearing before the learned Judge. After hearing learned counsel for each of the parties, the learned Judge, in his reserved ruling, refused the application and dismissed the motion. The learned Judge set out his reasons for dismissing the motion in the concluding portion of his said ruling as follows:-
“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 would terminate in his favour. For the foregoing reason, I hold that the application lacks merit and it is accordingly dismissed. No order as to costs.”
The defendant was dissatisfied with the ruling and has appealed against it to this court. One ground of appeal was filed against the ruling. The ground of appeal filed without its particulars read as follows:
“The learned trial Judge erred in law and on the facts when he held that for the purposes of limitation of this action, time began to run when the criminal action against the plaintiff/respondent terminated and Exhibit F was issued on 8/4/86 by the defendant and not when the plaintiff/respondent was dismissed on 6/12/84 as per Exhibit B”.
The parties filed their respective brief of argument in this court. The appellant formulated the following issue as arising for determination in the appeal.
“whether the suit of the respondent was not statue barred having regard to the provisions of section 97(1) of the Ports Ordinance Act, Cap. 155 Laws of the Federation of Nigeria 1958.”
The respondent, on the other hand, formulated four issues as arising for determination in the appeal. Apart from the first of the four issues which is the same as the one formulated in the appellant’s brief, the other 3 issues raised in the respondent’s brief never arose from the ground of appeal filed. They are therefore incompetent. I accordingly strike them out along with the submissions made on them.
The gravamen of the appellant’s case is that since section 97 (1) of the Ports Ordinance 1958 specifically provides, inter alia, that such suit shall not lie or be instituted in any court unless it is commenced “within twelve months next after the act, neglect or default complained of …………..,” the learned trial Judge was wrong in holding that the date to be used in computing the period is not the date the respondent was dismissed but the date he was acquitted of the criminal charge against him. Reference is made to the letter of dismissal written by the appellant to the respondent dated 6/12/84 (Exhibit B). It is then submitted that since the respondent’s writ of summons was filed on 22/9/86, it was wrong to hold that the action was not statue barred. It is further submitted that by law, limitation period begins to run from the date on which the cause of action accrued. The decisions in Shell Petroleum Development Co, Ltd v. Farah and Ors. (1995) 3 NWLR (Pt. 382) 148 and Utih v. Egorr and Ors. (1990) 5 NWLR (Pt. 153) 771 are cited in support.
Reference is also made to the definition of “cause of action” in the Utih v. Egorr case supra, where the term is defined as “the factual situation stated by the plaintiff which if substantiated, entitles him to a remedy against the defendant”. It is then submitted that since the cause of action in the instant case was the dismissal of the plaintiff/respondent, it was wrong of the learned Judge not to use the date of the letter of dismissal in his computation.
It is submitted in reply in the respondent’s brief that in order to determine whether an action is statute barred or not the first thing to be done would be to determine when the cause of action arose. This could only be done by considering the facts of each case. Thus, from the facts of the instant case, it is submitted that the facts which the plaintiff/respondent needs to prove in order to establish the fact that his termination was unlawful, null and void include the following; (1) that he was an employee of the defendant/appellant; (2) that he was accused wrongly of fraud by the defendant/appellant; (3) that the alleged fraud was investigated by the police and charged to court; (4) that he was discharged and acquitted by the Magistrate; and (5) that while the Magistrate Court case was still going on, the defendant/appellant wrongly terminated his appointment. It is then submitted that until the above stated facts are completed, it could not be said that a cause of action has accrued to the plaintiff/respondent. It is therefore submitted that the cause of action accrued when the respondent wrote his letter for reinstatement (Exhibit E) to the appellant and to which he received a reply, Exhibit F, by which his request for reinstatement was turned down. The decisions in Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt. 391) 534; and Turburville v. West Ham Corporation (1950) 2 K.B.D. 208 were cited in support of the above submission. The determining factor in this appeal is exactly what time should be taken as the time the limitation period should start to run. Section 97 (1) of the Ports Ordinance Act 1958 provides that:
“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 Ordinance or Law, or any public duties or authority, or in respect of any alleged neglect or default in the execution of such Ordinance, Law, duty or authority, such suit shall not lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or damage within twelve months next after the ceasing thereof.”
The question to be answered in the instant case therefore is whether the cause of action arose on the date on the letter of dismissal written by the appellant to the respondent, or on a later date such as the day the respondent was acquitted of the criminal charge preferred against him. Or yet another date- the day his request for reinstatement was turned down. In resolving the issue of the appropriate commencement date in every case, one has to take into consideration the facts of the case before deciding the “act” in question. The law is settled that the period for hearing an action under a limitation law begins from the date that an action could have been taken and the limitation period begins to run from the moment the cause of action arose. See Solomon v. Africa Steamship Co. (1929) 9 N.L.R. 99; Koney v. U.T.C. Ltd. (1934) 2 WACA 188; Utih v. Egorr and Ors. (1990) 5 NWLR (Pt. 153) 771 and Shell Petroleum Development Co. Ltd. v. Farah and Ors. (1995) 3 NWLR (Pt. 382) 148.
A cause of action would arise when the factual situation set out by the plaintiff which, if substantiated, would entitle him to a remedy against the defendant: See Utih v. Egorr and Ors. Supra, at 783; Egbe v. Adefarasin (1986) 1 NWLR (Pt. 3) 549; and Alese v. Aladetuyi (1995) 6 NWLR (Pt. 403) 527.
Applying the law as declared above to the facts of the instant case, one would see from the respondent’s claim before the lower court that legs (i), (ii) and (iii) of the claim wherein the plaintiff sought from the court, inter alia, a declaration that his trial by the disciplinary panel set up by the defendant was ultra vires, null and void; an order setting aside the findings made by the panel; and an order compelling the defendant to pay to the plaintiff all his entitlements, have nothing to do with the outcome of the criminal charge he faced at the Magistrate Court. In order words, the question whether the respondent’s trial before the disciplinary panel was ultra vires, null and void had nothing to do with the outcome of the criminal charge the respondent was facing at the Magistrate court. It follows therefore that the limitation period in respect of the first three legs of the claim would start to run from the date on which the disciplinary panel started its trial or shortly thereafter. The three legs of the claim are therefore statute barred since the action was not commenced within 12 months “next after the act” of constituting the said panel. The position with legs (iv) and (v) of the claim seems to be different from the first three legs I already discussed above. In leg (iv) the plaintiff prayed the court for an order reinstating him; and in leg (v) he prayed the court for an order that his salaries from September 1984 until the date of judgment be paid to him. The difference I mentioned earlier between the three earlier legs of the claim and the last two legs can be seen if one goes back to the genesis that led to the plaintiff instituting the action. The man was accused of committing fraud in the course of his official duties. The matter was reported to the police for investigation. On completion of the police investigation, he was arraigned before a Magistrate court. There, he was tried and found not guilty, discharged and acquitted of the charge preferred against him. His claim for reinstatement and payment of salaries pending judgment in the case, could only arise after his discharge in the Magistrate court. The cause of action in respect of those two legs of the claim therefore arose from the date the Magistrate delivered his verdict discharging the respondent of the criminal charge preferred against him. In the result, I hold that legs (i), (ii) and (iii) of the plaintiff/respondent’s claim are statute barred and they are accordingly dismissed. On the other hand, I hold that legs (iv) and (v) of the claim are not statute barred in that they were filed within twelve months of the act complained of. Those 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.
SAKA ADEYEMI IBIYEYE, J.C.A.
I have read before today the judgment delivered by my learned brother, AKINTAN J.C.A. I entirely agree with the manner he treated the only issue on accrual of cause of action in the matter before the lower court with particular reference to Section 97(1) of the Ports Ordinance Act 1958 which deals in essence with commencement of any suit against Ports Authority or its servant and the period of time within which such suit should commence or be instituted. Failing to comply with the provision will by necessary implication lead to voidity of such suit. In the instant case, the circumstances of the several legs of claim by the plaintiff/respondent have been meticulously dealt with in the lead judgment and I can hardly deviate from the conclusion therein that reliefs (i), (ii) and (iii) of the respondent’s claim are statute barred while reliefs (iv) and (v) of the same claim were filed within the period stipulated by Section 97 (1) (supra). I therefore agree that the appeal succeeds partially and I abide by the consequential orders.
KUMAI BAYANG AKAAHS, J.C.A.
I had a preview of the judgement of my learned brother, Akintan J.C.A. He has analysed the claim and found that the reliefs are severable; hence the holding that reliefs (i), (ii) and (iii) are statute barred while reliefs (iv) and (v) are not caught by Section 97(1) of the Ports Ordinance Cap. 155 Laws of the Federation of Nigeria 1958 and Section 118 of the Ports Act, Cap. 361 Laws of the Federation of Nigeria 1990. I equally hold that the appeal partially succeeds and the trial should continue in respect of the alternative reliefs. I too make no order as to costs.
Cases cited in the judgment
Alese v. Aladetuyi (1995) 6 NWLR (Pt. 403) 527.
Egbe v.Adefarasin (1986) 1 NWLR (Pt.3) 549.
Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt. 391) 534.
Koney v. U.T.C. Ltd (1934) 2 WACA 188.
Shell Petroleum Development Co. Ltd v. Farah and Ors. (1995) 3 NWLR (Pt. 382) 148.
Solomon v. African Steamship Co. (1929) 9 NLR 99.
Turburville v. West Ham Corporation (1950) 2 K.B.D. 208.
Utih v. Egorr and Ors. (1990) 5 NWLR (Pt. 153) 771.
Statutes referred to in the judgment
The Ports Act, Cap 361, Laws of the Federation of Nigeria 1990; Ss.110(1); 118.
The Ports Ordinance, Cap 155, Laws of the Federation of Nigeria 1958 s.97(1).