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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."
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