Whether the time spent at wrong court would be counted for purpose of limitation law
CROSS RIVER UNI. OF TECH. v. AGBOR
CITATION: (2020) LPELR-50222 (CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON WEDNESDAY, 8TH JULY, 2020
Suit No: CA/C/190/2015
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of Appeal
HAMMA AKAWU BARKA Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU Justice, Court of Appeal
CROSS RIVER UNIVERSITY OF TECHNOLOGY -Appellant(s)
MRS. CHRISTIANA JOHN AGBOR
(Substituted by Order of Court made on 11/01/2017) -Respondent(s)
LEADING JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.
This appeal is against the judgment of the National Industrial Court, sitting in Calabar delivered on 3rd June, 2015.
The facts of the case are that the Respondent’s husband was engaged on a temporary appointment by the erstwhile Polytechnic, Calabar as Auditor in the Audit Department on 21st of November, 1991. He was subsequently offered permanent appointment as Internal Auditor and his appointment was confirmed vide a letter dated 9th May, 1994 with effect from 21st November, 1995. He rose to the position of Senior Internal Auditor before his appointment was terminated on allegations of serious misconduct; gross insubordination and dereliction of duty vide a letter dated 9th April, 2001.
Aggrieved by the termination of his employment, the Respondentinstituted an action by a complaint at the National Industrial Court, claiming as follows:
”(a) A declaration that the termination of the appointment of the Plaintiff was unwarranted, invalid, null and void as same was in violation of the right of fair hearing of the Plaintiff.
(b) A declaration that Plaintiff is entitled to his salary during the pendency of this action and part of his half salary during interdiction and other benefits like outstanding leave days during the pendency of this suit.
(c) Order of Court for the payment of all the Plaintiff’s accumulated salary during the pendency of the action, part of his half salary interdiction and other benefits.
(d) The sum of N30 million as special and general damages for the mental anguish suffered by the Plaintiff due to the act of the Defendant and the inherent health problems associating the gunshot on him while in service of the defendants.”
Pleadings were filed and exchanged and the matter proceeded to trial. At the end of the trial and in a considered judgment delivered on 3rd June, 2015, the Respondent’s claims were granted in part as follows:
“1. It is hereby declared that the termination of the appointment of the Claimant was unwarranted, invalid, null and void and a violation of the right of fair hearing of the Claimant.
2. It is hereby declared that claimant is entitled to his salary during the pendency of this action and part of his salary during interdiction.
3. The Defendant shall pay to the claimant the sum of N20, 014,317.67, being all the claimant’s accumulated salary during the pendency of the action and the balance part of his half salary during interdiction.
4. Cost of this suit put is at N50, 000, payable by the Defendant to the Claimant. All sums due under this judgment shall be paid within 60 days of this judgment.
Being dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.
Issues for determination
The Court determined the appeal on the following issues: 1. Whether from the facts and circumstances of this case and from evidence on record, the Claimant’s right to fair hearing was breached and whether the Claimant proved his case to entitle him to the reliefs sought. 2. Whether the trial Court lacks jurisdiction to entertain the substantive action before it as constituted.
The Court considered the second issue first being an issue of jurisdiction.
Arguing the second issue, learned Counsel for the Appellant contended that the cause of action arose on 9th April, 2001 whereas the originating process was filed on 1st November, 2014 a period of over V14 years and that by virtue of Section 16 of the Limitation Law of Cross River State 2004, the action should have been brought not later than five years from the date the cause of action arose. Assuming but not conceding the fact that the cause of action arose on 12th December, 2013 it was submitted that the action having been filed on 22nd September, 2014 was still outside the six months period provided for in Section 1(a) of the Public Officers Protection Law, Cap P. 17 Laws of Cross River State, 2004 (as amended) by Law No 1 of 2007.Counsel referred to OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (pt 9) 579.
On the first issue, Counsel contended that the role of the investigative panel was not to try the Respondent or any member of his department. Being an investigative panel, the issue of fair hearing could not have arisen. Counsel stated that Section 13 of Cross River University of Technology Law provides for setting up of investigative panel or committee who will forward their report to the council, and if it appears to the council that amisconduct has occurred requiring the disciplining of a staff, it is only then that the staff concerned will be given notice and afforded opportunity to be heard before a decision is taken. Counsel argued that the Respondent having being heard by the Governing Council Disciplinary Committee, which is the statutory body responsible to act as such, he cannot complain of breach of fair hearing. He referred to OLORUNTOBA OJU V.
ABDULRAHEEM (2001) 3 NWLR (pt 1157) 83 at 145 on the distinction between the recommendation of an investigative panel and that of statutory body.
Counsel argued further that whenever a party is challenging his termination or dismissal from employment, the party must produce and tender his condition of service. Thus, it is not theduty of the employer to prove any such breach. He referred to IBAMA V. SHELL PETROELUM DEVELOPMENT COMPANY NIGERIA LTD (2005) 17 NWLR (pt 954) 364 at 378 – 379; KATTO V. CBN (1999) 6 NWLR (pt 607) and SULE V. NIGERIA COTTON BOARD (1905) 2 NWLR (pt 8)1.
On issue 2, Counsel to the Respondent contended that right from 26/4/2001 when the original Respondent filed the suit to the date when the National Industrial Court delivered its judgment on 3/6/2015, the action remained a continuous proceedings and thus not statute barred. He submitted that the transfer of suit from the High Court of Cross River State to the National Industrial Court, as well as the journey to the Court of Appeal, did not affect the original date of the accrual of the cause of action since the rights of the parties had not been finally determined.
Still in argument, Counsel submitted that the Respondent having been granted an order to amend the writ of summons, the date of filing the writ of summons dated back to when the originating process was first filed, that is, on 26/4/2001. He referred to HOPE UZODINMA V. IZUNASO & 2 ORS (2011) 5 MJSC 27.
Arguing issue 1, Counsel contended that the Appellant was a judge in its own cause. He submitted that fair hearing is not limited to ensuring compliance with the rules of natural justice but entails a compliance with the provisions of Section 36 of the 1999 Constitution. He referred to SHELL PETROLEUM DEVELOPMENT COMPANY LTD V. OLANREWAJU (2008) 8 NWLR (pt 1118) 1 at 6 to the effect that the Court has a duty to be watchful in ensuring that the investigation or proceedings of a domestic panel culminating in the dismissal of an employee from his employment complies with the rules ofnatural justice. On the alleged failure to produce and tender the condition of service, Counsel stated that the Cross River University of Technology Lawwas specifically pleaded. He thus submitted that the Respondent had proved infractions of his fair hearing in terminating his appointment by the Appellant.
Resolution of the Issues
Resolving the second issue, the Court stated that in determining whether a cause of action is statute barred or not, the most crucial consideration is when the cause of action arose or accrued. See SAVANAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING TRANSPORT AGENCIES LTD (1987) 1 NWLR (prt 49) 212. The Court proceeded to consider the record of appeal which showed that the Respondent’s cause of action arose when his appointment was terminated vide a letter dated 9th April, 2001. The Respondent commenced an action challenging his termination at the High Court of Cross River State on 26/4/2001. The suit went on appeal to the Court of Appeal and same was determined on 24/3/2009 wherein the matter was remitted to the High Court for re-assignment to another judge for a hearing on the merit. Also being a labour related matter, the case was again transferred to the National IndustrialCourt on 27/11/2012, which heard and delivered its judgment on 3rd June, 2015.
The question to be answered was whether the time spent at the wrong Court and in the Court of Appeal ought not to be counted for the purpose limitation law. Answering the foregoing question in the negative, the Court stated that where a suit is struck out, the Plaintiff has another opportunity to commence the action after curing the deficiency, which resulted in the striking out of the suit. See SIFAX (NIG) LTD V. MGFO (NIG) LTD (2018) 9 NWLR (pt 1623) 138 at 191-192. The Court held that the effect of remitting the suit back for trial on merit as well as its transfer to the Court with requisite jurisdiction was a continuous process of a live action. Since the Respondent had filed the earlier suit expeditiously, the time spent at the wrong Court and on appeal does not count for the purpose of limitation law. Issue two was thus resolved against the Appellant.
Resolving issue 2, the Court stated that by virtue of Section 36(1) of the 1999 Constitution (as amended), the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the Constitution. The Court stated further that the twin pillars of natural justice, audi alteram partem and nemo judex in causasua are indispensable in the process of adjudication in any civilized society. See NDUKAUBA V. KOLOMO (2005) 4 NWLR (pt 915) 411; IKOMI V. STATE (1986) 3 NWLR (pt. 28) 340 and ARJIE V. ARJIE (2018) 16 NWLR (pt. 1644) 67.
Going further, the Court noted that the parties were ad idem as to the fact that the Respondent’s employment had a statutory flavor. The law is that when an office or employment has a statutory flavor, any person in that office enjoys a special status over and above the ordinary master and servant relationship. Thus, in the matter of discipline of such an employee the procedure laid down by such statute must be fully complied with, if not, any decision affecting the right or reputation or tenure of office of that employee willbe declared null and void. See OLORUNTOBA OJU V. ABDULRAHEEM (2001) 3 NWLR (pt 1157) 83.
The Court also stated that even though the recommendation of the panel of investigation does not affect the civil rights and obligation of the person investigated, acting upon such recommendation does. Hence, the implementation of the recommendation by statutory body must comply strictly with the rules of natural justice. See KENON V. TEKAM (2001) 14 NWLR (pt 732) 12, GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt 18) 550 AIYETAN V. NIFOR (1987) 3 NWLR (pt 59) 43, OLAYIOYE V. OYELARAN I (2019) 4 NWLR (pt. 1662) 351 at 375.
The crux of the Respondent’s complaint at the National Industrial Court was that the petition that led to his termination of appointment was generated by members of NASU and NASU members formed an integral part of the committee that investigated him which was contrary to the rule of natural justice. The Respondent had objected to the membership of some of the members of the panel of investigation whom he accused of having one serious issue or the other. As a result of his objection, NASU was asked to withdraw but did not and even went ahead to participate in the proceeding including signing the report.
On this basis, the Court, applying the above principles of law, agreed with the National Industrial Court that the proceedings of the Investigative Panel was conducted in breach of the right to fair hearing of the respondent because there was likelihood of bias which is all a plaintiff needs to show to succeed in an allegation of breach of right to fair hearing. See AHMED V. REGD. TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) 5 NWLR (pt 1665) 300 314 – 315.
In conclusion, the Court resolved both issues against the Appellant and dismissed the appeal.
Nta A. Nta, Esq. -For Appellant.
Chief Onyebukwe F. O. -For Respondent.
Compiled by LawPavilion.