CASE SUMMARY OF:
Mr. Fidelis Okirika Agboroh v. The West African Examinations Council (WAEC) (2016) - CA
- Public officers;
Mr. Fidelis Okirika Agboroh
The West African Examinations Council (WAEC)
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, J.C.A
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- Nwabueze Okorie Esq;
* FOR THE RESPONDENT
- Chief J.K. Ezebunwa;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
Appellant filed this Appeal on 29th January, 2014 against the decision of National Industrial Court, Owerri Division, in Suit NO. NICN/EN.156/2013, delivered on 15th January, 2014, by Hon. Justice O.Y. ANUWE, whereof, the trial Court struck out the Claimant's suit for want of jurisdiction, following a preliminary objection, raised by the Defendant, that the suit was statute barred, pursuant to Section 2(a) of the Public Officers Protection Act, Cap P.41, Laws of the Federation of Nigeria, 2004.
The claims of the Appellant (who was the claimant at the Court below) filed on 12/7/2013, were for:
(a) A declaration that the purported dismissal of the claimant by the defendant via a letter of dismissal dated April 22, 2009 but received on 13th July 2009 is unconstitutional, illegal, null and void.
(b) A declaration that the claimant is still a staff of the Defendant and thereby entitled to all his salaries, allowances and remuneration from April 2009 till date.
(c) An order awarding the sum of five Million Naira (N5,000,000.00) only to the claimant as general damages suffered by the claimant for the psychological trauma and pains he was subjected to as a result of the illegal action of the defendant.
(d) And any other order or orders as this honourable Court may deem fit to make in the circumstances of this case.
1. Whether the defendant is a public officer and thus entitled to enjoy the protection under Section 2(a) of Public Officers Protection Act?
2. Whether the case is statute barred having commenced this case vide Lagos High Court suit No.LD/1845/09 of 5th November 2009 and not 12th July, 4 2013?
HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED WITH N50,000 COST AGAINST THE RESPONDENT]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT.
i. Section 12 (1)(c) (of the WAEC Act) which excludes payment of salaries, fees or other remuneration or allowances and pensions, superannuation of the Appellant from the Federal or State Government coffers and the auditing of the accounts of the 2nd Appellant by auditors appointed by the 2nd Appellant under Section 13(2) of the WAEC Act (supra), not by the auditor-General of the Federation or of a State also confirm the detached status of the 2nd Appellant, indicating it is not an organ or agency of the Federal government. Even the application of the pensions Act to the Staff of the 2nd Appellant under Section 6 of the WAEC Act does not transform the 2nd Appellant into an organ of the Federal government when it used the words "as if" the office were in the Public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999. The underlined phrase "as if" not "it is" clearly, in my opinion, demarcates the 2nd Appellant from the Public Service of the Federation.
2. THE COURT JUDGED ISSUE 2 AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. I do not think it is necessary to waste precious judicial time to discuss and consider the 2nd issue posed by the Appellant, that is, whether the case is statute barred having commenced vide Lagos State High Court Suit No. LD/1845/09 of 5th November 2009 and not 12th July 2013. The reason for my position, above, is that Appellant's Counsel had conceded, in paragraph 1.3.2 of his brief of argument as follows: "My lord, this case actually started on 5th November 2009 vide suit No.LD/1845/09 and not 12th July 2013 as stated by the Defendant. I am aware that this was not stated in the earlier statement of claim of the claimant. My lord when this case was handed over to me this fact was not made clear to me. As this is the last Court on this matter, it will be disservice on my fact (sic) if this fact is not made known to my lord. This case started on time and it was only struck out on 13/3/2013 for want of jurisdiction when our 1999 Constitution was amended". Of course, having admitted the non pleading of the facts of the earlier Suit, No. LD/1845/09 by the parties herein at the Lagos High Court, which was struck out, following the amendment of the 1999 Constitution (3rd Alteration Act, which enhanced the status of the National Industrial Court and took away the jurisdiction of the High Courts in labour matters, etc), and the fact that even Appellant's Counsel was not aware of that suit, Counsel cannot, in honesty, canvass that this suit (which resulted in this appeal) was a continuation, or extension of the said Suit No. LD/1845/09, said to have been struck out on 13/3/2013 by the Lagos High Court for want of jurisdiction.
I think if Appellant intended this Suit to be a continuation, or off shoot of the said earlier suit, he would have persuaded the Lagos High Court to transfer same to the National Industrial Court, on the former discovering it had no jurisdiction to continue hearing or entertaining that suit. Alternatively, Appellant would have pleaded the facts of the earlier suit, and how/why it was struck out, in the writ and statement of claim of this Suit, No.NICN/EN/156/2013, disclosing intention to rely on it at the trial.
Thus, since the said Suit. LD/1845/09 was not part of the issues considered by the trial Court and was not even contemplated in the Judgment, now on appeal, and so could not have formed a credible ground of appeal, it ceased to be relevant to this appeal.
S. 18(1) Interpretation Act, Cap 123 LFN;
S. 318(1) of the CFRN 1999;
Section 2(a) of the Public Officers Protection Act, states:
"Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of 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 any such act (Law, duty or authority) the following provisions shall have effect:
(a) The action, prosecution or proceeding shall not lie or be instituted, unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage, injury within three months next after the ceasing thereof."
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The law and practice is that a party who files a preliminary objection must take the stage, first, at the time the appeal comes up for hearing, and argue the said preliminary, before the appeal is heard, and where he fails to do so, the preliminary objection is deemed abandoned and has to be struck out. - Mbaba, J.C.A. Agborah v. WAEC (2016)
By law, an issue for determination of appeal must derive from and relate to the ground(s) of appeal, which must, inturn, arise from the judgment appealed against. - Mbaba, J.C.A. Agborah v. WAEC (2016)
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