Alhaji Bello Nasir v. Civil Service Commission Kano State & Ors

The appellant as plaintiff in the High Court of Justice of Kano State sought the following reliefs against the respondents:-

“(a) A declaration that the plaintiff still (sic) in the service of the defendants and that he is entitled to his full remunerations and leave allowance since dismissal.

(b) A declaration that the letter of his dismissal dated 30th  January, 1996 and letter of interdiction dated 22nd  August 1995 are null and void and no effect.

(c) A declaration that the plaintiff is entitled to all his allowances as an employee of the defendants.

(d) A declaration that the plaintiff who is an employee of the defendants be with immediate effect re-instated by the defendants.”

Pleadings were exchanged by the parties. After the appellant had given evidence and closed his case, the defendant/respondents filed their statement of evidence. On 18/4/2000 learned counsel for the respondents moved a motion for the dismissal of the suit for being statute barred. The learned counsel for the appellant filed a counter affidavit. Both learned counsel addressed the court on the motion, but the learned trial judge rather than rule on it made the following observation:-

“I am of the opinion that the implication of this application will entail my giving a ruling which in effect would have the implication of a final judgment.  And because of this I wish to serve my ruling until the end of the trial and make application and the ruling to form part of my judgment.”

P.1

Indeed the learned trial after going through the gamut of appraising the evidence before him found as follows in his judgment in the final analysis:-

“At the end of the day I find and hold that this suit was filed outside the 3 month period required by the law and is therefore statute barred.”

Aggrieved by the decision the plaintiff appealed to the Court of Appeal Kaduna division. The court affirmed the decision of the court of first instance and dismissed the appeal. Again the plaintiff was aggrieved by the dismissal of his appeal, and he has appealed to this court. As is the practice in this court and in accordance with the rules of court, both learned counsel for the parties exchanged briefs of argument to this appeal, which were adopted at the hearing of the appeal. Issues for determination were formulated in the briefs, and I will reproduce those in the appellant’s amended brief of argument here below. They are:-

“1. Whether the lower court was right in saying that the trial court considered all the issues raised by the Appellant in his reply to the preliminary objection raised by the respondent? If the answer is in the negative whether such denial or consideration of those issues amounted to the breach of rules of hearing as enshrined in the 1999 Constitution?….

2.Whether the lower court has correctly interpreted and applied the provisions of order 24 Rules (2) and (3) and order 25 Rule 6 (1) and (35) of the Kano state High Court (Civil procedure) Rules 1988………………….

3. Whether the statute of Limitation can be applicable in the circumstance of this matter having regard to the case of OFFOBOCHE VS OGOJA LGS (2201) (SIC) 7 SCNJ 468 AT 483, 490 – 49 AND EKEOGU VS ALIRI (1990) NWLR (part 126) 345 at 354, and the contractual nature of the relationship between the Appellant and Respondents………..”

P.2

It is on record that the grounds upon which the application that was brought (pursuant to Section 2(9) of the Public Officers (protection) Law Cap.121 Laws of Kano State for the dismissal of the suit) are as follows:-

“4(b) That following proof of allegation of gross misconduct of hiding of files the plaintiff/respondent was dismissed.

(c) That the letter of dismissal was served on the defendant/respondent on 30th  January, 1996.

(d) That the plaintiff/respondent filed this action on 25th  June, 1996 verily six months after he was served with  the letter of dismissal.

(e) That it will be in the interest of justice to dismiss the action.

(f) That the dismissal of this action will not prejudice the plaintiff/respondent.”

The appellant filed a counter-affidavit, the vital depositions of which read thus:-

“3’A9 That the Statement of Claim was served on the Defendant/Applicant  counsel Amina Y. Yargaya (Mrs) on the 6/3/98.

(e) That on the 6/3/97 when Appellant’s solicitor was in court the matter was adjourned to 30\4\97 to enable Applicants counsel file their Statement of Defence

(f) That on the 30/4/97, the plaintiff/respondent opened his case and same was adjourned to 23/6/97 for continuation of hearing. That the Applicants and their counsel were absent from court on the said 30/4/97 without giving any explanation.”

The learned counsel for the appellant has submitted that the learned trial judged was in error when after considering the evidence before him he held interalia in his judgment as follows:-

P.3

“It is evidence that the plaintiff was dismissed from service on the 30th  January, 1990 whereas he filed and commence (sic) this suit on 28th  June, 1996. The argument of Mr. Surajo Director of Civil Litigation are therefore in order that this suit was not commence (sic) within the three month required by the law to wit (sic) the public officers protection law. I am buttress (sic) in my opinion by the decision in Ibrahim vs JSC (1998) 14 NWLR (pt. 584) 1 at page 33. At the end of the day I find and hold that this suit was filed outside the 3 month period required by the law and is therefore statute barred.”

The findings of the lower court on the ruling of the trial court was also attacked by learned counsel, submitting that it cannot be supported having regards to what is contained in the record of proceedings of the trial court. According to him the breach of the failure of the trial judge not giving a detailed ruling deprived the appellant of knowing the position of the court on the issue raised and argued, and by this failure the right of fair hearing of the appellant has been infringed. He placed reliance on the case of Unibiz Nigeria Ltd. V. Commercial Bank Credit Lyonnais Ltd 2003 13 NSCQR 292 at 311.

On moves to settle the matter, the learned counsel for the respondent has argued that the case of Nwadiaro v. Shell Petroleum 1990 5 NWLR (Pt.150) 322 relied upon by the appellant is inapplicable, because in that case, the Court of Appeal found that the defendant did not file a statement of defence, the Court of Appeal found that there was negotiation and admission of liability, whereas the reverse is the case in the instant case.

P.4

It was further submitted that even on the authority of Nwadiaro’s case negotiation cannot stop time from running. On the right to fair hearing, it was argued that the appellant was heard by the trial court as was found by the Court of Appeal, the appellant has no right to insist that the judgment should contain chapter and verse of all his submissions. He placed reliance on the case of Dike v. Nzeka 1989 4 NWLR part 34 page 144.

On the point that the issue of statute of limitation was not raised in the pleading, and that demurer proceedings have been abolished, learned counsel has submitted that the respondents were within their rights to raise the objection on statute of limitation before trial or in the course of the trial, and he referred to Aguda, Practice, & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, 2nd  Edition, at page, 279.

There is no gain saying that the application and objection that is the subject of controversy now was on point of law, being one on jurisdiction of the trial court to hear and determine the case. That being the case, all the learned trial judge needed to do was to consider the provision of the law under which it was brought and the affidavit evidence in support. This as can be seen on pages 76 – 77, of the record of proceedings was done by the learned trial judge. On page 76, the learned judge considered the deposition in the supporting affidavit for dismissal of the suit, stating that date of dismissal of the appellant, and the relevant exhibit which I have already reproduced supra, and then even reproduced the relevant law which reads:-

2. Where any action prosecution or other proceedings commenced against any person for any act done in pursuance of execution or intended execution of any law or of any public duty or authority of any such law, duty or authority, the following provisions shall have effect:-

P.5

(a) the action, prosecution or proceeding shall not be or be instituted unless it is commenced within three month next after the act neglect or default complained of, or in case of a continuance or damage or injury, within three months after the ceasing therefore:- See Public Officers (protection) law Cap. 121 Laws of Kano State.

Now, it is obvious from the counter-affidavit that the plaintiff/appellant did not challenge or debunk the date of the dismissal of the appellant vis a vis the date of the initiation of the suit in the High Court of Kano state. There was therefore nothing in the appellant’s evidence to analyse or dwell on in detail, as the appellant would have wanted the learned trial Judge to do. Commonsense dictates that unless there are oral or documentary material before the court that is worth the while of a judge to consider extensively, he may not be obliged to make such detailed analysis. As a matter of fact, I would say the appellant’s counter-affidavit contained unnecessary facts that were not apposite to the objection raised. The learned trial Judge was in the circumstances at liberty to accept and rely on the respondent’s evidence as he did, for it is settled law that evidence that are relevant to the matter in controversy, and that have not been challenged or debunked remain good and credible evidence that may be used in the just determination of a dispute. See Adeleke v. Iyanda 2001 12 NWLR part 729 page 1, Aikhianbare v. Omoregie 1976 12 SC. 11, and Obembe v. Wemabod 1977 5 S.C. 115.

In this circumstance that the appellant’s supporting evidence was bereft of anything substantial to deserve and detailed analysis, what was the learned trial Judge supposed to do, stray into a blank discourse because he wanted to satisfy the appellant that he considered his own side of the story?

Definitely not.

P.6

Now, what are the issues the learned trial judge was alleged not to have analysed in detail? They are that the statute of limitation must have been pleaded specifically, the date when the injury complained of occurred, and the fact negotiation to settle the suit were on. I think that the fact that the learned trial Judge did not go into a detailed consideration of these complaints in his judgment is inconsequential as long as he has considered the most vital aspects of the application, briefly as it may have been. Inspite of that the lower court, as per Adamu JCA in his lead judgment correctly considered the surrounding circumstance of the motion on notice thus:-

“I am of the humble view that although the respondents in the present case did not specifically plead the statute of limitation in their statement of defence their subsequent motion introducing it was valid and proper as it was permitted by the learned trial Judge in his discretion and under the above principle on proceedings in lieu of demurrer. Moreover, I recall that when the learned counsel for the appellant was asked by this court during his oral argument of the appeal viva voce, he admitted or conceded that he did not take any step during the trial to challenge the validity or otherwise of the respondents motion on notice……………………………..

Equally, it is the law that where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on appeal on the particular point or procedure.

P.7

In the present case since the appellant did not object against the procedure under which the respondents motion on notice was brought at the trail court, he is thereby estopped under the principle of waiver to raise the point at this stage – see Tsokwa Oil Co. Ltd vs Bank of the North Ltd (2002) 5 SCNJ 176 at 192: Kossen (Nig) Ltd vs Savana bank Ltd (1995) 12 SCNJ 29; Ojomo vs Ije 91987) 4 NWLR (Pt.64) 216 at 244 -245, Kaduna Textiles Ltd vs Umar (1994) 1 NWLR (pt.319) 143……………”

As for the date of the injury I have already dealt with that, as the learned trial Judge relied on the affidavit evidence which was not debunked. On the issue of negotiation, there was no need to go into it because it did not materially affect the prayers sought. In all these wise, the issues of lack of fair hearing raised, by learned counsel for the appellant is of no moment.

There was therefore no infringement of the right of fair hearing.

In the final analysis, on this issue the objection raised being that of jurisdiction was properly raised, notwithstanding, the stage at which the ruling and the order made. The most important thing is that the substance of the objection was dealt with and the correct decision was arrived at. An elementary principle of the law and which has been dealt with in a plethora of authorities is that an objection to the jurisdiction of a court can be raised at the beginning or the end of a proceeding even just before judgment stage. It is fundamental that it can be raised even in an appellate court. See Ezomo v. Oyakhire 1985 1 NWLR part 2 page 195 Oloriode v. Oyebi 1984 1 SCNLR 390, and Mobil Oil Nigeria Plc v. Kena Energy International Limited 2001 1 NWLR part 659 page 555.

P.8

For the foregoing reasoning I resolve this issue in favour of the respondents and dismiss ground of appeal No. (1) to which it is married.

Issue (2) above is a spillover of issue (1), as the argument entails demurer which has already been touched in issue (1), most especially on the purport of order 24 of Kano State Civil Procedure Rules. The learned Counsel for the appellant in his brief of argument reproduced the following provision thus:-

“ORDER 24 RULE 1 STATES- No demurer shall be allowed.”

(2) Any party shall be entitled to raise by his pleading any points of law, and any points so raised shall be disposed of by the judge who tries the case at or after the trial. Provided that by consent the parties or by order of the court or a judge on the application of either party, the same may be set down for  hearing and disposed of at anytime before the trial.

(3) if in the opinion of the court or a judge the decision of such point of law substantially disposes of the whole action, or any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or judge may thereupon dismiss the action or  make such other therein as may be just”.

The purpose of pleadings and raising any point therein, as is required in Rule (2) supra is to avoid springing surprises on parties, and this is an elementary law of practice and procedure which does not require the interpretation of the said Rule (2) supra to understand. See George v. Dominion Flour Mills Limited 1965 1 All N.L.R. page 71, Aniemeka Emegokwu v. James Okadigbo 1973 4 S.C. 113, and Umoffia v. Ndem 1973 12 S.C. 69.

If the function of pleadings is to put the other party on notice of what to expect at the trial, then a motion on notice, (as was in the instant case) to dismiss a case on point of law precludes elements of surprises.

P.9

The appellant cannot feign ignorance of the point of law raised before the motion was moved. The appellant was very aware of what the respondents were seeking from the court, and had opportunity to meet it headlong. The appellant cannot say that he was prejudiced, for I believe even if that point of law on statute of limitation was raised in the statement of defence, he could not have proffered more argument than he did in the course of the proceedings in respect of the motion. As I have stated earlier in the judgment in the treatment of issue (1), the statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, and I will add here, even in the Supreme Court. In my words, in the very recent case of FRN  v. GOLD 2007 11 NWLR part 1044 page 1 which has been cited by the learned counsel for the respondents:-

“There is no doubt this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation at an appellant court, vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The appellant in this case realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.”

The above has in fact taken it beyond the position in the instant case, for it went further than what the appellant is quarrelling about. It is instructive to note that the rule referred to in the quotation above has the same provision as the rule discussed under this issue (2) supra. See also Olubanjo v. Dawodu 2006 15 NWLR part page 76.

Perhaps I should mention here again that a substantial part of the argument under this issue has already been dealt with, and for fear of repetition I will stop at this juncture. I resolve the issue in favour of the respondents and dismiss grounds (2) and (3) of appeal to which it is married as it lacks merits.

P.10

Having agreed and held that the action was caught by the statute of limitation, I am of the view that the need to consider the arguments covering issue (3) supra is obviated. Once the action was statute barred there was nothing to build on it. To proceed with the treatment of issue (3) is like chasing a wild goose, as the most important aspect of the appeal has already been dealt with above and disposed of. Issue (3) is therefore resolved in favour of the respondent, and the related ground of appeal No.(4) is dismissed. This is an appeal against concurrent finding of two lower courts found to be perverse and have caused miscarriage of justice. See Woluchem v. Gudi 1981 5 SC. 291, Overseas Construction Co. (Nig) Ltd. V. Greek Enterprises (Nig) Ltd 1985 3 NWLR part 13 page 407, and Adeye v. Adesanya 2001 6 NWLR part 708 page 1. The end result is that this appeal fails in its entirety. I will however make no order as to costs.