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In The Supreme Court of
On Friday, the
13th day of July 2007
Before Their Lordships
S.C. 51/2002
Between
And
Judgment of Court
Delivered by
Chirstopher
Mitchel Chukwuma-Eneh.
J.S.C.
The plaintiff, a former staff,
of the Defendant sued the defendant in the
(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(l) (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 apiece. At the
end of the day, the trial court found in favour of the Defendant that the
Plaintiffs 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?
2.
Better still, what is the exact extent of Section 83(1) of the
Nigerian Railway Corporation Act Cap.323
LFN 1990?
3.
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 6/8/02 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 (1992) 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 Craft Apprentice on Grade Level 02. See Exhibit "A". He was
still in the respondent's employment at its Divisional Office Ibadan 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)
The appellant arguing issues 1
and 2 together and
having referred to the 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 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 conjured up in construing self same Section
83(1) of the NRC Act, with the result that upon the community reading of the
aforesaid Revisions 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 any injustice as the injustice occasioned
to the-appellant in his respect.
See
Ebiriuku v.
Ohanyerenwa (1959) F.S.C
212 and Nabhan v. Nabhan
(1967) ANLR 47 and so has
submitted that, section 17(2)(a)(i) and (ii)
should not be used to clog the clear and ambiguous 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 SCNJR
42 and Toriola v. Willams
(1982) 7 SC 27. The
appellant has therefore berated the court below for sorting to Section 17(2)
(g) (i) and (ii) and Section 48(1) of the NRC
Act vis-à-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 Sections 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, 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 has acted wrongfully
in terminating the
appellant's employment.
Furthermore, it therefore
follows 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 not 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 in
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
peri
material 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 NEC'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. Oyinwole (2000) 10 WRN
125 where this court was invited to overrule
Salati
v. Shehu (1986) 1 NWLR
(pt 15) 128. 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
it's decision on grounds of interest of justice. See
Odi v. Osafile (1985) 1
NWLR (pt. 1) 17, Bucknor-Maclean
v. Inlark (1980) 8 Sc 11,
Willams v. Daily Times of Nigeria Ltd. (1990) 1
NWLR (pt. 124) 1 and
Eperokun v.
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(i) of the NRC Act. It
submits that by the provision of Section 83(i)
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 for Section 83(1) NRC Act.
See Santana Medical Services
v. (1999) 12
NWLR (pt 630) 189 at 191-192,
Adelekan
v.
Nigeria Ports Authority (1968) NCLR 408; and
in this regard the court below is not been faulted by the
appellant.
Referring to the ease of
NBC v.
Bankole (supra) the respondent Intends 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
contract. This court is urged to be guided by that decision. The respondent
also has adverted to the case of NPA
v.
Contruzioni Generali
Faarsura
Coyefar
SPA (1974)
1
ANLR 463
which construed Section 97
Nigerian Ports Authority Act (NPA Act), 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 v 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 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
Extention 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 the court below
has power to take into consideration other provision, 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-latter 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. Williams (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
Generali Faarsura
Coyefar 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 its 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
Eperekun
v.
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 2, 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 that the court below placed on
Section 83(1) of the NRC Act vis-à-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 toes 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 fells 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 plaintiff as
the appellant here as 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's Laws of
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.
Nunku (1995) 5 NWLR
(pt344) 129, and Ibrahim v. Judicial Service
Commission (1998) NWLR (pt.584)
1. The same is true in the case of Section 61 of the
Nigerian Broadcasting Corporation
Act (NBC Act), which has been
interpreted in the case of
Nigerian Broadcasting Corporation v.
Bankole (1992)
NSC 220. Furthermore, the court
has had the opportunity of construing Section 12(l) 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
wholistic background to this matter, I have also
to advert to the case
of
Nigerian Ports Authority
v.
Construzioni Generali
Faarsura Spadanor
(1974) 12 SC 69 which construed Section 97 of the Port Act
as the respondent has highlighted it in its brief of argument
Ibekwe J.S.C (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. L.E.D.B & Anor.
(20 NLR
169) which construed S.2 of the Public Officers
Ordinance].
Words in
brackets supplied by me.
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 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 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 Act
does not apply as it is not an act done in pursuance of fended 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, Mohammed v.
Dantata (2000) 7 NWLR
(pt. 644) 176; Union Bank of Nigeria Ltd v. Peny-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 off-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 as 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 83(l) (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 predicted 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 construed in bits and
pieces. See:
S.P.D.C.
v.
Isaiah (1997)6
NWLR (pt.505)236:
Omoijahe v. Umoru
(1966) 6 NWLR (pt.614)
178 at 188. It is trite that a statute should be
construed as a whole and should be given an interpretation Insistent with
the object and general context 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 or 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, shall lie or be instituted in any
court unless it is commenced within twelve months next after the acts
neglect, or default complained of or, on the case of a continuance of damage
injury, within twelve month 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,
damages, 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 vien 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)
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 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 the
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 read as follows:
"6.
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.
7.
It was also an express term and condition of service of the defendant
that employment of staff may determine by notice in writing from either
side."
It is evident from the
foregoing averments of the existence of Rules 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(l) 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
context of 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 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 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
of 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 context 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 finder statutory authority
and as averred in paragraphs 6 and 7 of the statement of claim there are
materials on the ground of staffs conditions of service in place:. This
being the case the relationship of the parties is therefore subject to
Section 83(l) and (2) of the NRC. Thus giving effect to the principle laid
in NEC'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 of this action.
By the averment in paragraphs 6 and 7 of the Statement of 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 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, 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 Nigerian
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.
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 follow in this regard the footsteps
in
Adisa v.
Oyinwole (supra) which 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.
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)
NWLR (pt.270) 462 at
483 and
Ivienagor 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
Judgment delivered by
Aloysius
Iyorgyer Kastina-Alu.
J.S.C.
I have had the advantage of
reading in draft the judgment delivered by my learned brother
Chukwuma-Eneh, J.S.C
in this appeal. I agree entirely with it and, for the reasons he gives, I
too, dismiss this appeal for lacking in merit. There shall be costs of
Judgment delivered by
George
Adesola Oguntade.
J.S.C.
The facts leading to the
dispute out of which this appeal arose are simple and straightforward. The
plaintiff/appellant was an employee of the respondent. The plaintiff had
sent a notice in writing to the respondent indicating his intention to leave
respondent's service which said notice, the respondent accepted in writing.
Later, the plaintiff changed his mind and sought to withdraw the notice of
withdrawal of service earlier sent to the respondent. The respondent did not
countenance the withdrawal. It proceeded to terminate
plaintiffs employment. Under these circumstances, the plaintiff at
the Lagos High Court issued his writ of summons claiming the following
reliefs:
"(a)
A Declaration that the letter reference 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 and the refusal to allow the Plaintiff to remain
in its employment is irregular, illegal, null and void and of no effect.
(b)
A Declaration that the Plaintiffs employment has not been duly
determined in accordance with the terms and conditions of his service.
(c )
An Order reinstating the Plaintiff to his post and station without
loss of seniority and privilege to contemporaries on officiating capacity in
the employment of the Defendant.
(d)
$185,183.28 as special and General
damages."
Before the trial court, the
parties filed and exchanged pleadings. The cornerstone of the respondent's
defence was that the plaintiff, not having initiated his suit within 12
months of the accrual of his cause of action could no longer bring or
maintain his suit by virtue of section 83(1) of the Nigerian Railway
Corporation Act, Cap.323, Laws of the
Federation, 1990.
The trial judge, in his
judgment on 3rd November, 1997, upheld the respondent's
contention that the plaintiffs suit was
statute-barred. He accordingly struck out plaintiffs
suit. Dissatisfied, the plaintiff brought an appeal before the Lagos
Division of the Court of Appeal (hereinafter referred to as the court
below). The court below, on 14-01-2002 in its unanimous judgment, dismissed
plaintiffs appeal and affirmed the judgment of the trial court striking out
plaintiffs suit. Still dissatisfied, the
plaintiff has come on a final appeal to this Court. In his appellant's
brief, the plaintiffs counsel formulated the following issues as arising for
determination in the appeal:-
" 1.
Is the termination of the contract of employment within the purview of
S.83(l) of the Respondent Act, Cap.323
LFN 1990?
2.
Better still, what is the exact extent of S.83(1)
of the Nigerian Railway Corporation Act Cap.323
LFN 1990?
3.
If the answer to issue No. 1 is NO, what order .should this
Honourable Court make in the circumstances?"
In his appellant's brief,
learned counsel has canvassed very interest: argument as to why this Court
needed to overrule its decision in TV.B.
C. v. Bankole [1972]
NSCC (Vol. 7) 220. In that case, this
Court had stated the law whilst interpreting Section 61(1) of the Nigerian
Broadcasting Act which is similar to Section 83(1) of Cap. 323 thus:
"We are in no doubt that the
learned trial Judge was in error in taking the view that section 61(1) is
restricted to acts causing 'injury or trespass to a person or his property',
and does not apply to cases where the Corporation is exercising 'right
based on common law or on a contract'. Upon a proper interpretation of
section 61(1), we fail to see how it could be said that the section draws
such distinction. In our view, the wording of the section is clear and
unequivocable. It applies to
‘an act
done in pursuance or execution or intended execution of any Ordinance or
Law, •or of any public duty or authority, or in respect of any alleged
neglect or default in execution of such ordinance or Law, duty or
authority.'
and
affords protection to all acts done in the circumstances contemplated by
that section. Section 1 of the Public Authorities Protection Act, 1893,
which is similar to section 61(1) of the Nigerian broadcasting Corporation
Act was considered in Compton v. West Ham County Borough Council (1939) 3
All E.R. 193. In that case, it was held that
the breach of a contract which a public authority has the duty to make or is
by statute bound to make comes within the protection of the Act. We
respectfully adopt the views expressed by Crossman, J. at
PP.198 to 200 when he said:
'The defendant council relied
upon the provisions of that Act. Sect. 1 of that Act provides as follows:
'Where after the commencement
of this Act any action, prosecution, or other proceeding is commenced in the
United Kingdom against any person for any act done in pursuance, or
execution, or intended execution of any Act of Parliament, or of any public
duty or authority, or in respect of any alleged neglect or default in the
execution of any such act, duty or authority, the following provisions shall
have effect:
(a)
the action, prosecution, or proceeding shall not lie or be instated
unless it is commenced within 6 months next after the act, neglect, or
default complained of, or, in case of a continuance of injury or damage,
within six months next after the ceasing thereof .........
Counsel for the defendant
council says that the keeping back from the plaintiff of the half of his
salary which was kept back was an act done in pursuance or execution or
intended execution of an Act of Parliament, and that, the action not having
been commenced within 6 months next after the act so done, the action does
not lie. Counsel for the plaintiff says that the Act does not apply because
the action is for breach of contract, and he relies upon Clarke v.
Lewisham Borough Council and Sharpington
v. Fulham Guardians.
The
statement in Halsbury's Laws of England,
Hailsham Edn Vol.
26, p.294, para.
612, in the article on 'Public Authorities and Public Officers,' and in the
section which is concerned with the execution of a statute, duty or
authority, dealing with the Public Authorities Protection Act, 1893, is as
follows:
'The performance, or breach,
of a contract which a public authority has the power, but not the duty, to
make, is not within the protection (of the Public Authorities Protection
Act).'
I think that that is a correct
statement of the law, and I think that it-also would be correct to take that
in an inverted form, and to say that the breach of a contract which a public
authority has the duty to make is within the protection of the Act.
However, that does not make it at once possible to see how that applies to
the present case, because the question is, what was the act done here in
respect of which this action is brought? I think that it is only a breach of
contract which a public authority has the power, but not the duty, to make
which is not within the Act. I think that this appears from Bradford
Corpn. V. Myers and McManus v. Bowes.
I find it difficult, really,
to construe the authorities, and to arrive at the law applicable to this
case from them. I think that a beach of a contract which a public authority
is by statute bound to make does come within the Public Authorities
Protection Act, 1893 and as the defendant Council were by the Public
Assistance Order, 1930, art. 142(1), bound to make the appointment of the
plaintiff, I hold that an action for breach of the terms of that appointment
is an action within sect. 1 of the Act of 1893. Art. 142 provides as
follows:
'(1)
The council shall appoint a district
medical officer for every medical relief district and a relieving officer
for every general relief district formed pursuant to art. 20.
Thus, the appointment of the
plaintiff was an appointment which the defendant council were bound to make
under the Act. The action here has arisen in consequence of that
appointment, and it seems to me that the best conclusion at which I can
arrive as to the meaning of sect. 1 of the Act is that the section does
apply to an action which is to remedy a breach of a contract which the
defendant council were bound to make in pursuance of the Poor Law Act, 1930,
and the regulations thereunder. I should say
that, under the Poor Law Act, 1930, s. 136(2), the articles contained in the
Public Assistance Order, 1930, have the same effect as if they were enacted
in the Poor Law Act, 1930.'
In the instant case, it seems
to us that by the combined effect of section 53 of the Nigeria Broadcasting
Corporation Act by virtue of which the defendant/Corporation appointed its
staff, and the regulations made under section 5(1) for the dismissal of
staff, the plaintiff s contract of employment was one which the
defendant/Corporation was bound to make under the Act and as the present
action alleged a breach of that contract, the defendant/Corporation is
entitled to the protection offered by section 61(1) of the Nigeria
Broadcasting Corporation Act. It follows that the defendant's plea that the
action was statute barred under section 61(1) ought to have been upheld by
the learned trial judge."
Similarly is
Umukoro v. Nigerian Ports Authority
[1997] 4 NWLR(Pt. 506)656 at 667, this Court
considered Section 97(1) of N.P.A. Act which is
similar to section 61(1) of the Nigerian Broadcasting Act and
Kutigi JSC (as he
then was) said:
"I think Section 97(1) of the
Ports Act (Supra) is quiet clear and unambiguous. The imperative
nature of the provisions is not in doubt. I am in complete agreement with
the decisions of both the two lower courts (and as rightly conceded by Mr.
Eduvie) that the plaintiffs suit is statute
barred and therefore rightly dismissed."
It would appear however that
the two decisions of this Court above had not adverted to another decision
of this Court in Nigerian Ports Authority v.
Construzioni F.C.S. &
Anor [1974] Vol. 9 NSCC
622 at 630 where this court per Ibekwe
J.S.C. considered the position of Section 97(1)
of the same Ports Act thus:
"We shall now deal with the
other point which to our mind, does not seem to be well-settled, namely
whether the kind of statutory privilege which we have been considering is
applicable to an action founded upon a contract. We think that the answer to
this question must be in the negative. We agree that the section applies to
everything done or omitted or neglected to be done under the powers granted
by the Act. But we are not prepared to give to the section the stress which
it does not possess. We take the view that the section does not apply to
cases of contract. The learned Chief Justice, in deciding this point, made
reference to the case of Salako v.
L.E.D.B. and Anor.,
20 N.L.R. 169 where de
Commarmond S.P.J. as he then was,
construed the provision of S.2 of the Public Officers Protection Ordinance
which is almost identical with S.97 of the Ports Act, and thereafter stated
the law as follows:
'I am of opinion that
section2 of the Public Officers Protection
ordinance does not apply in cases of recovery of land, breaches of contract,
claims for work and labour done, etc.'
We too are of the opinion that
de Commarmond S.P.J.,
has quite rightly stated the law in the passage of his judgment cited above.
It seems to us that an enactment of this kind i.e. S.97 of the Ports Act is
not intended by the legislature to apply to specific contracts.
It is pertinent to point out
that the view which we have just expressed seems to be in consonance with
the trend of the judgments pronounced in English cases dealing with similar
provisions in certain English Statutes. We shall refer only to one case as
an example. In the Midland Railway Company v.
The Local Board for the District of Withington (1882-3) 11
Q.B.D., 788, the Court of Appeal construed
S.264 of the Public Health Act, 1875 (38 & 39 Vet. C.55)
which, more, or less falls in line with S.97 of the Ports Act, the
subject-matter of this appeal. We think that it is desirable that we
should here set out the provision of S.264 of the Public Health Act, 1875 as
follows:
'Sec.264.
A writ or process shall not be issued out against or served on any local
authority, or any member thereof, or any officer of a local authority, or
omitted to be done under the provisions of this Act, until the expiration
of one month after notice in writing has been served on such local authority
member, officer, or person ......'
Delivering the judgment of the
court at p.794, Brett, Mr., made the following illuminating observation:
'It has been contended that
this is an action in contract, and that whenever an action is brought upon a
contract, the section does not apply. I think that where an action has been
brought for something done or omitted to be done under an express contract,
the section does not apply; according to the cases cited an enactment of
this kind does not apply to specific contracts. Again, when goods have been
sold, and the price is to be paid upon a quantum
meruit, the section will not apply to the action for the price,
because the refusal or omission to pay would be a failure to comply with the
terms of the contract and not with the provisions of the statute.'
We agree with their Lordships'
exposition of the law on this point. Clearly, the appellants' claim and the
1st respondents' counterclaim in the present case are founded in
contract. The counterclaim, in brief, is for the payment of the balance of
money due from the appellants to the respondents as a result of the contract
they both entered into for the construction of the second
Apapa Wharf Extension."
More or less the same issue
arose in N.P.A.
Pic. v. Lotus Plastic Ltd. [2005] 19
NWLR (Pt. 959) 158. I approached the problem
by considering the nature of the contract which was under consideration. I
then came to the conclusion that if the contract in
issue is one which is a specific or special one in which it might
have been expected that the parties would have freely agreed the terms of
the relationship between them, the provision of the Law on Limitation would
not apply; but it would apply on matters bordering on the day- to-day
activities of the public corporation as protected by the provision of the
Law.
At pages 209-210 of the report
I said:
"I think, with respect, that
it would be unjust to cloth the Nigerian ports Authority with special
protection in all costs of contract as that would negate the general
principles upon which the Law of Contract is based.
In a contract, parties are
free to negotiate the terms of their relationship. It is therefore sound to
say that in a specific contract, section 72(1) of the Act No. 74 of 1993 may
not be invocable unless the Nigerian ports and
the party with which it is contracting have specifically made it a part of
the terms of the contract. In the Construzioni
case, the N>P.A. was involved in a specific for the construction of
Apapa Wharf Extension.
In the case on hand, there was
no averment that the plaintiff, entered into a specific contract with the 1st
defendant. There was no averment that the plaintiff handed its bus to the 1st
defendant for safe keeping. If the plaintiff was relying on a contract in
bailment, the foundation for such contract could only have been based on the
general duties placed on the 1st defendant under section 3(1) and
(2) of Act No. 74 of 1993. The plaintiffs vehicle could not otherwise have
found its way into 1st defendant's custody save only in the
performance of the 1st defendant's duties under section 3(1
)(a) to 'provide and operate in the ports, such port facilities as
appear to it best calculated to serve public interest.' This view draws
support from the averment in paragraph 12 of the statement of claim where
the plaintiff pleaded:
'12.
The plaintiff paid the freight and the warehousing fees to the
defendants whereof the defendants are in breach of contract for failure to
deliver the said bus in good condition or at all. The value of the car is
US$49,300.00.'
It is obvious that the
plaintiff was not relying on a specific contract with the 1st
defendant but rather on the fact that it paid warehousing fees. This is a
fee, which all importers generally pay for the services of the 1st
defendant.
The only conclusion to be
drawn is that plaintiffs suit arose from the
normal day to day operations of the 1st defendant under the Ports
Act and not under any specific contract. It seems to me that the language of
section 72(1) is very clear. It is to protect the Nigeria Ports Authority
in its day-to-day operations and as provided under the Act. A conclusion
that the 1st defendant/appellant could not derive protection
under the Act would amount in my view to a subversion of the clear language
of the law.
There may be valid reasons why
specific contracts should not be covered or protected by section 72(1). But
I think that the general day-to-day operations of the Nigerian Ports
Authority ought to be protected under the Act."
I still think in the same way.
This is why I agree with the lead judgment of my learned brother
Chukwuma-Eneh JSC. I
would also dismiss this appeal with costs as assessed in the lead judgment.
Judgment delivered by
Sunday
Akinola Akintan.
J.S.C.
The appellant was an employee
of the respondent. He was employed as a craftman
on 1st July, 1975 on the Corporation's salary grade level 02.
Between 1975 and 1993 he had earned a number of promotions as a result of
which he was in 1993 on the respondent's salary grade level 07. By a letter
dated 16th November, 1992, the appellant gave a three-month
notice of his intention to withdraw his services with effect from 17th
February, 1993. The letter was routed through his Divisional Manager in
The appellant therefore
instituted the present action at Lagos High Court as Suit No.
LD/3810/94 against the respondent as defendant.
His claim was, inter alia, for declaration that the refusal of the
respondent to accept his withdrawal of service notice and allow his service
to continue was irregular, null and void; declaration that his employment
was not duly terminated; and claim for various sums of money as damages
arising from the respondent's wrongful act. Pleadings were filed and
exchanged and the trial took place before Famakinwa,
J.
The respondent, as defendant,
apart from denying the plaintiffs claim in its statement of defence,
pleading as follows in paragraph 23 of its statement of defence:
"23.
The defendant further states that by reason of section 83 of the
Nigerian Railway Corporation Act (Cap 323, Laws of the Federation) the
plaintiffs action is statute-barred."
At the conclusion of the
trial, the learned trial Judge delivered his reserved judgment on 3rd
November, 1997 in which he upheld the defendant's contention that the action
was statute-barred. His conclusion is as follows:
"In the final analysis, the
whole claim in its entirety is thrown out because it is statute-barred. The
suit is therefore struck out. No order as to costs. Each party shall bear
his or its own cost of the action."
The appellant was dissatisfied
with the judgment and his appeal to the court below was dismissed. The
present appeal is from the judgment of the court below. In the lead judgment
of the court below delivered by Aderemi,
JCA (as he then was) with
Ige and Sanusi, JJCA
concurring, the court upheld the decision of the trial High Court that the
appellant's claim was statute-barred.
The Learned Justice said,
inter alia, as follows in the concluding paragraph of the lead judgment:
"The next question to answer
is whether the suit is statute-barred. The writ was taken out on 25th
August, 1994. The letter complained of although dated 6th March,
1993 came to the knowledge of the plaintiff/appellant on 13th
March, 1993. The writ, undoubtedly, was taken out far in excess of the
twelve-month period prescribed by section 83(1) of the Act. The claim is
therefore statute-barred. In the concluding part of the judgment of the
court below, the learned trial Judge having found that the action was
statute-barred made an order striking out the entire suit. The law has been
well laid down in a number of judicial decisions that where an action is
adjudged to be statute-barred, a plaintiff who might have had inured to his
benefit a cause of action for all times looses the right to enforce that
cause of action through judicial process because the period of time allowed
by the Limitation Law for instituting such a suit has elapsed. Such an
action can never be validly commenced again. Since the plaintiff has lost
the right to seek a redress in a court of law, his suit must stand
dismissed. See Eboigbe v.
N.N.P.C. (1994) 5 NWLR
(Pt. 347) 649. I would think that the trial Judge should enter an order
dismissing the entire suit instead of striking it out. I would order a
dismissal of the suit."
The parties filed their briefs
of argument in this court. The appellant formulated the following three
issues as arising for determination in the appeal, which the respondent also
adopted in its brief:
"1.
Is the termination of the contract of
employment of the appellant within the purview of section 83(1) of the
Respondent's Act, Cap 323 Laws of the Federation of Nigeria, 1990?
2.
Better still, what is the exact extent of section 83(1) of the
Nigeria Railway Act, Cap.
323, Law of the Federation of Nigeria 1990?
3.
If the answer to Issue No. 1 is No, what order should this Honourable
court make in the circumstances?"
Fred
Agbaje, Esq., learned counsel for the appellant had earlier indicated
to this court that he would like us to over-rule an earlier decision of this
Court in NBC v.
Bankole (1972) NSCC 220 where this
court had pronounced on section 16 of the NBC
Act which is in pari
materia with the
section 83(1) of Nigeria Railway Act under consideration in the
instant case. His request therefore led to the empanelling of a full court
to take the appeal.
The crux of the appellant's
case, as canvassed in Issues 1 and 2 of the appellant's brief, is that the
provisions of section 83(1) of the Nigeria Railway Corporation Act are
restrictive and do not cover the appellant's case as held by the two lower
courts. The termination of the appellant's employment is said not to be an
act covered by the provisions of the section. It is further submitted that
the facts and circumstances of the instant case differ substantially from
those of the NBC v.
Bankole case. The appellant's case is
therefore said not to be covered by the section 83(1).
It is submitted in the
appellant's Issue 3 that based on the submission that the provisions of
Section 83(1) of the Nigerian Railway Act are inapplicable to the
appellant's case as it was founded on breach of contract, it is then
submitted that the appellant's case should be upheld in the interest of
justice or remit the case back for hearing de novo before another
Judge.
Finally, this Court is urged,
in the appellant's brief that its decision in NBC
v. Bankole, supra, should be
over-ruled because the interpretation adopted in that case was too wide and
that continued adherence to that principle would lead to gross injustice and
miscarriage of justice. It is contended that while the principles in
the said NBC v.
Bankole case was good law in 1972 when it was decided, the
position is said not to be so today when the country is under a democratic
dispensation. It is said in conclusion that the situation in the instant
case warrant and justify the application of the principle of law which this
court laid down in its numerous decisions on when a previous decision could
be reversed.
It is submitted in reply in
the respondent's brief that it is a misconception of the provisions of
section 83(1) of Nigerian Railway Corporation Act to say that they
are not applicable to the appellant's case. It is argued that the action
taken in the case was part of the respondent's statutory authority to hire,
maintain, remunerate, promote or remove its own staff. The evidence led at
the trial was clearly in support of the fact that the respondent acted in
pursuance of or execution or intended execution of such Act, law, duty or
authority. Both the trial court and the court below are therefore said to
have correctly interpreted the provision.
On the request that this court
should over-rule its earlier decisions in its interpretation of the
provisions of section 83(1), it is submitted that a party inviting this
court to depart from its earlier decision must show that the earlier
decision was wrong or erroneous in law or that it was given per
incuriam or that it has become an instrument
of injustice. The appellant is said to have failed to establish the
existence of any of the required conditions precedent to taking such a step.
The main controversy in this
appeal rests on the interpretation of the provisions of section 83(1) of the
Nigerian Railway Act. That section provides as follows:
"83
(1)
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,
shall lie or be instituted in any court unless it is commenced within twelve
months next after the ceasing thereof:
Provided that, in the case of
a claim for a refund of an over-charge 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 or action shall be deemed to have arisen
on the day of such acceptance.
(2)
No suit shall be commenced against the Corporation until three months
at least after written notice of intention to commence the same shall have
been served upon the Corporation by the intending plaintiff or his agent;
and such notice shall clearly and explicitly state the cause of action, the
particulars of the claim, the name and place of abode of the intending
plaintiff and the relief which he claims."
The question therefore is
whether the action of the respondent in the instant case came within the
scope covered by the provisions of section 83(1) of the Act set out above. I
have no doubt in holding that the respondent is conferred in the Act with
the powers to employ, discipline and determine any appointment made. The
section provides that "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 ---------- shall lie or be
instituted in any court unless it is commenced within 12 months next after
the act..."
In addition to the above
requirement, it is also provided in section 83(2) that "no suit shall be
commenced against the Corporation until three months at least after written
notice of intention to commence the same shall have been served upon the
Corporation".
It is not in doubt that
section 83(1) of the Act provides for a form of limitation period within
which an action against the Corporation must be commenced while section
83(2) provides for pre-action notice which must be given to the Corporation.
The two requirements must be met before an action against the Corporation
can be said to be properly instituted. Failure to comply with either of the
provisions would lead to the action being, declared as incompetent: See
Madukolu v.
Nkemdilim (1962) 2 SCNLR 341.
The question in issue in this
case, therefore, is whether the wrong that formed the basis of the
appellant's action conies within the scope covered by the provisions of
Section 83(1) of the Act. The answer to that question was unequivocally
answered in the affirmative by this Court in a previous decision of this
Court in Nigeria Bottling Co. v. Bankole
(1972) NSCC and I do not think that the
decision of this court in that case can be faulted.
The other question raised is
that the decision in NBC v.
Bankole case, supra, be over-ruled. This
again brings to fore a consideration of the conditions that must be met
before this Court could embark on over ruling its previous decision.
The conditions that must exist
include that the party inviting the court to depart from its earlier
decision must show that the earlier decision was wrong or erroneous in law
or that it was given per incuriam or that
it has become an instrument of injustice. See
Eperokun v.
The request for a departure
from an earlier decision is not granted simply by merely asking. It is a
serious decision that must be given after strict compliance with the
conditions that must be met before making such a decision. In the instant
case, the reason given by the appellant is that the continued adherence
would lead to injustice. But it has not been shown how such injustice could
arise and as such the appellant has failed to make a good case to warrant
the grant of the request. In the result the request is refused.
For the above reasons I hold
that there is no merit in the appeal. I accordingly dismiss it with
Judgment delivered by
Aloma
Mariam Mukhtar.
J.S.C.
The reliefs claimed by the
appellant against the respondent as per the writ of summons in the High
Court of Lagos State are as follows:-
"1.
A Declaration that the letter reference No
EDO.1028/CON/172 dated 25th of
January, 1993 and letter Ref. No WP.20663/CON
171 dated 8th of March, 1993 written by the Defendant purportedly
accepting the Notice of withdrawal of service of the Plaintiff and refusal
to allow the Plaintiff to remain in its employment is irregular, illegal
null and void and of no effect.
2.
A Declaration
that the Plaintiffs employment has not been duly determined in
accordance with the terms and condition of his service.
3.
AN Order
reinstating the Plaintiff to his post and station without loss
of Seniority and priviledge to contemporaries on
officiating capacity in the employment of the Defendant.
4.
Famakinwa
J. in his judgment found no merit in the above reliefs and concluded his
judgment thus:-
"In the final analysis, the
whole claim in its entirety is thrown out because it is statute barred. The
suit is therefore struck out. No order as to costs. Each party shall bear
his or its own costs to the action."
Dissatisfied with the judgment, the
plaintiff appealed to the Court of Appeal, where the suit was in fact
dismissed. Again the plaintiff appealed to this court on three grounds of
appeal, from which the following three issues for determination were
distilled.
"1.
Is the termination of the contract of
employment of the appellant within the purview of Section 83(1) of the
Respondent Act, Cap. 323 LFN
1990?
2.
Better still, what is the exact extent of Section 83(1) of the
Nigerian Railway Corporation Act Cap.
323 LFN 1990?
3.
If the answer to issue No. 1 is No, what orders should this
Honourable Court make in the circumstances?".
The above issues were
virtually adopted by learned counsel for the respondent. The whole appeal in
my view, revolve around the provision of Section 83(1) of the Nigerian
Railway Corporation Act supra, so I will reproduce the said provision at
this juncture. The said Section 83(1) stipulates the following:-
"83(1)
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,
shall be 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 or injury, within twelve months next after the
ceasing thereof:
Provided that, in the case of
a claim for a refund of an over-charge in respect of goods accepted by the
corporation for carriage, or for compensation in respect of loss, damage,
deviation, misdelivery, debut 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 quarrel of the learned
counsel for the appellant is that the court below having accepted that the
appellant's case (except ‘any further material') does not peremptorily fall
within Section 83(1) of the NRC Act
supra. The portion of the
judgment the appellant seems to be attacking is as follows on page 10 of the
judgment of the lower court:-
"On a proper construction of
this section it seems to me that only an act which was done in pursuance or
execution or intended execution of any ordinance or law or of any public
duty or authority or in respect of any neglect or default thereto is covered
by it. As a corollary any act which is outside the statute and will not
enjoy the protection afforded by the section. See
Omotayo
vs N.E.C. (1992) 7
NWLR (pt. 254) 471. Although the appellant
was employed as a craft apprentice in 1979 he rose to the level of a Higher
Technical Officer (works) level 08 in the absence of any further material
before me I would have said, peremptorily, that section 83(1) of the
N.R.C. is not applicable to this case."
I do not see the reason for
the heavy weather made by the learned counsel for the appellant on the
above, for the invocation of the provisions of Sections 17(2) (a) (i)
b (ii) and 48 of the NRC Act (which the learned counsel thinks was uncalled
for) by the lower court was necessary, and Aderemi,
JCA (as he then was) was right to have
considered those provisions in the .course of his judgment. A judge in the
course of writing his judgment is at liberty to have recourse to any
provision of the law that is relevant to the subject matter of the case in
controversy in order to completely give the judgment the attention it
deserves, to do justice to it, and to avoid a miscarriage of justice. See
Onuoha
v. State 1988 3 NWLR part 83 page 460.
A judge is also enjoined to
interpret the provision of law and give it its grammatical and ordinary
meaning, and not to ramble and distort its construction. See
Amadi
v. N.N.P.C. 2000 10
NWLR part 674 page 76, First Bank of Nigeria PLC. V.
Ibennah 1996 5 NWLR
part 451, page 725, Shell Petroleum Development Co. (Nig.) Ltd v. Federal
Board of Internal Revenue 1996 8 NWLR part 461
page 256
and
Adisa v.
Ovinwola (2000) 10 NWLR part 674 page 116.
In the instance case, the two
lower courts gave the correct interpretation of section 83 (1) of the NRC
Act and applied it to the case. The subject matter of this case is one that
has statutory flavour, and which must be governed by provision of the said
relevant statute, and nothing else. In this respect I find no merit
whatsoever in the appeal before this court, and would also dismiss it. As
for the application of the appellant that this court should depart from its
earlier decision in Nigerian
Broadcasting Corporation v. Bankole 1972
NSCC page 220, I am afraid the application must
fail, because the principles to justify such departure have not been met or
established by the appellant. See
Eperekun
v. University of Lagos 1986 4
NWLR part 34 page 162. The application has
no legs to stand on. I have read in advance the lead judgment written by my
learned brother Chukwuma-Eneh,
JSC and I entirely agree with him that the
appeal lacks merit and substance. I abide by the consequential orders made
therein.
Judgment delivered by
Mahmud Mohammed.
J.S.C.
The Appellant in this appeal
was an employee of the Nigerian Railway Corporation now the Respondent in
this Court. A notice of withdrawal
from service was served by the Appellant on the Respondent which
notice was accepted by the Respondent. When the Appellant changed his
decision to leave the service of the Respondent
and attempted to withdraw the notice of
withdrawal from service, the attempt was resisted by the Respondent which
went ahead and terminated the employment of the Appellant. Aggrieved by the
action of the Respondent, the Appellant as Plaintiff filed his suit at the
trial High Court of Justice, Lagos and claimed the following reliefs: -
"(a) A
Declaration that the letter reference No
EDO.1028/CON/172 dated
25th
January, 1993 and letter reference
No. 20663/CON/171 dated 8th
of March, 1993 written accepting the Notice of withdrawal of service of the
Plaintiff and the refusal to allow 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 condition of his service.
(c)
An Order reinstating the Plaintiff to his post and station without
loss of seniority and privilege to contemporaries on officiating capacity in
the employment of the Defendant.
(d)
The case was heard on
pleadings in the course of the hearing, each of the parties called only one
witness. The main defence raised by the Respondent/Defendant to the
appellant/Plaintiff's case, was that the action not having been filed within
12 months of the accrual of the cause of action, the action was statute
barred by virtue of the provision of Section 83(1) of the Nigerian Railway
Corporation Act, CAP 323 Laws of the Federation of Nigeria, 1990. In his
judgment delivered on 3rd November, 1997, the learned trial judge
accepted the defence of the Respondent/Defendant and found the
Appellant/Plaintiff's action statute barred and struck out the same.
The Appellant/Plaintiff's appeal to the Court of Appeal against the
order of the trial Court striking out his action was also dismissed by the
Court of Appeal, hence his further and final appeal to this Court.
In the respective briefs of
argument filed by the Appellant and the Respondent before this appeal was
heard on 19th April, 2007, the following three identical issues
were formulated for the determination of the appeal. They are:-
"1.
Is the termination of the contract of
employment of the Appellant within the purview of Section 83(1) of the
Respondent's Act, CAP 323 LFN 1990?
2.
Better still, what if the exact extent of Section 83(1) of the
Nigerian Railway Corporation Act CAP 323
LFN
1990?
3.
If the answer to issue No. 1 is No, what order should this Honourable
Court make in the circumstances?"
Notwithstanding the
identification of these issues by the parties, I am of the view that the
answer to the question of whether or not the trial Court and the Court below
were right in their decisions that the action of the Appellant was statute
barred by virtue of Section 83(1) of
the Nigerian Railway Corporation Act, is enough
to determine this appeal. The Section reads -
"83(1) 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 on default in the execution of such Act or law, duty or Authority,
shall lie or be instituted in any Court unless it is commenced within twelve
(12) months next after the act, neglect or default complained of on, in the,
case of continuance of damage or injury, within twelve (12) months next
after the ceasing thereof."
From the records of this
appeal, it is quite clear that the complaint of the Appellant/Plaintiff
regarding wrongful termination of his employment by the Respondent/Defendant
was the cause of action which arose on 15th March, 1993 when the
Respondent/Defendant ordered the Appellant/Plaintiff to stay away from work.
The Appellant/Plaintiff, who was aggrieved by the order, did not take any
step to challenge it in Court, until 5th August, 1994, when the
action that gave rise to the present appeal was filed. In other words the
action was not filed until 17 months after the cause of action had accrued.
By the provisions of Section 83(1) of the Nigerian Railway Corporation Act,
the action was required to have been filed within the period of twelve
months from 15th March, 1993, when the act complained of took
place. Therefore on the facts placed before the trial High Court, and the
Court below, and taking into consideration the statute prescribing the
period within which actions on suits against the Respondent/Defendant should
be commenced, the trial Court and the Court below were quite right, in their
decisions that the Appellant/Plaintiff's suit against the
Respondent/Defendant, was statute barred. This is because from the
evidence on record which reveals the nature of the Appellant's contract of
employment and the manner the contract was terminated by the Respondent, it
is quite clear that the act complained of by the Appellant was done in
pursuance or execution or intended execution of such Act, law,
duty or authority. The Court of Appeal was therefore right when it found
that the act or breach complained of by the Appellant in his action was well
within the protection afforded to the Respondent by Section 83(1) of the
Nigerian Railway Corporation Act. The decision of the Court below in this
respect is fully supported by the decision of this Court in
Nigerian Broadcasting Corporation
v. Bankole
(1972) N.S.C.C.
220, in which the provision of Section 61(1) of the
Nigerian Broadcasting Corporation Act, which provision of Section
83(1) of the
Nigerian Railway Corporation Act, were considered and construed, leading to
the same result as in the present appeal.
Having regard to the clear
position of the law regarding the fate of the action as filed outside the
period prescribed in Section 61(1) of the Nigerian Broadcasting Corporation
Act, Section 83(1) of the Nigerian Railway Corporation Act, or similar Acts
providing protection to such Corporations created under statutes,
learned counsel to the Appellant is now asking this Court in the present
case to depart from its decision in
Nigerian Broadcasting Corporation v. Bankole
(supra), on the ground that the decision had generated injustice against
employees in search or pursuit of their rights against their employers.
The question is whether the
learned counsel has succeeded in showing any features in the present case
justifying this Court departing from its decision in
N.B.C.
v. Bankole (supra). This is to say, the
learned counsel has woefully failed to show that the earlier decision in
N.B.C.
v. Bankole (supra) was wrong or erroneous in
law or that it was given per incuriam or that
it has become an instrument of injustice. Indeed, where there is likelihood
of injustice being perpetuated, this Court has, in the recent past had
occasion to over-rule itself. See
Bucknor-Maclean
v. Inlacks Ltd. (1980) 8 - 11 S.C. 1
wherein this Court over-ruled its previous decisions
in Shell
B.P.
v. Jammal Engineering (1974) 1 All
N.L.R. 543 and
Owumi v. P. Z. (1974) 1 ALL
N.L.R. (Part 2)
107.
In my view, the onus lies squarely on the Appellant to show that
there have been new developments since
N.B.C.
v. Bankole (supra) which rendered the
decision of this Court therein no longer good law or which rendered the
application of that decision in the present case oppressive or unjust. See
Eperokun
& Ors. v. University of Lagos (1986) 4
N.W.L.R. (PT. 34) 162 at 175 - 176.
In the final result, as the
Appellant's learned counsel has failed to exclude the case of the Appellant
from the clutches of the provisions of Section 83(1) of the Nigerian Railway
Corporation Act, CAP 323 of the Laws of the Federation of Nigeria, 1990, or
show a real likelihood
of injustice being perpetuated to the Appellant
in the present case, the need to depart from
N.B.C.
v. Bankole (supra) which remains good law,
does not arise.
Accordingly this appeal fails
and it is hereby dismissed with
Judgment delivered by
Francis
Fedode Tabai. J.S.C.
I had the privilege to read,
in advance, the lead judgment prepared by my learned brother
Chukwuma-Eneh J.S.C.,
and I agree entirely with his reasoning and conclusion that the appeal lacks
merit. It is also accordingly dismissed by me with costs which I assess at
Counsel
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