MR. STEVE OLUSOJI BAMIDELE OLUSA VS. NATIONAL INSTITUTE FOR CULTURAL ORIENTATION & ORS

CORAM

STEPHEN JONAH ADAH, JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JUSTICE, COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JUSTICE, COURT OF APPEAL

PARTIES

MR. STEVE OLUSOJI BAMIDELE OLUSA

APPELLANTS

1. NATIONAL INSTITUTE FOR CULTURAL ORIENTATION

2. THE HEAD OF THE CIVIL SERVICE OF THE FEDERATION

3. THE HON. ATTORNEY-GENERAL OF THE FEDERATION & MINISTER OF JUSTICE

RESPONDENTS

AREA(S) OF LAW

ACTION, ADMINISTRATIVE LAW, APPEAL, CONSTITUTIONAL LAW, COURT, JUDGMENT AND ORDER, JURISDICTION, LAW OF EVIDENCE, LEGISLATION, LIMITATION LAW, PRACTICE AND PROCEDURE, STATUTE, WORDS AND PHRASES

SUMMARY OF FACTS

The Appellant served as a Director in the employment of the 1st Respondent until 2/2/2016, when he was mandatorily retired after a tenure of eight years as a Director under the erstwhile “Tenure Policy”, which was introduced in the Public Service by the Federation sometime in August 2009, to the effect that all Permanent Secretaries and Directors who have spent eight years on their duty post are to be compulsorily retired from the Civil Service of the Federation. The said policy was subsequently incorporated as Rule 020810 (iv) (a) & (b) of the Federal Government Public Service Rules, 2009. However, after his retirement, the Federal Government vide a letter referenced No.SH/COS/100/A/1462 dated 17/6/2016, directed the suspension of the said Tenure Policy with immediate effect and consequently, the 2nd Respondent issued Circular No. HCSF/428/S.1/139, dated 20/6/2016. The Appellant then formally wrote to the 1st Respondent for reinstatement through the Executive Secretary since his employment was subject to the Public Service Rules, 2009 with compulsorily retirement upon the attainment of the mandatory age of 60 years or 35 years of Service, none of which he attained as at the time he was compulsorily retired from service having served for only a cumulative period of 22 years and under the age of 60. While the 1st Respondent’s position is that it was the Appellant who himself notified the 1st Respondent of his intention to proceed on retirement in accordance with the extant Civil Service Rules and retired from service on 2/2/2016. Thus, having retired, he was no longer a beneficiary of the change in policy introduced by the suspension of the 8 years tenure policy as contained in the Federal Government letter No. SH/COS/100/A/1462 dated 17/6/2016, which came into effect over 4 months after his retirement since it has no retrospective effect.

The Appellant commenced an action before the National Industrial Court of Nigeria, Abuja Judicial Division, wherein vide an Originating Summons, he sought for the determination of certain questions and for the following reliefs: a declaration that the purported compulsory retirement of the Appellant as a Director in the service of the 1st Respondent was unlawful; an Order for immediate recall and reinstatement; and an Order for payment of all of the Appellant’s salaries, allowances and entitlement from 2nd February, 2016 until recalled and reinstated. In reaction, the 1st Respondent filed a Counter -affidavit and a Notice of Preliminary Objection challenging the competence of the Originating Summons on the ground that it was statute barred. In its ruling/judgment, the lower Court dismissed the claims of the Appellant against the Respondents on the preliminary objection of the 1st Respondent for being statute barred. Aggrieved, the Appellant pursuant to the leave of the Court of Appeal, Abuja Division, granted filed his Notice of Appeal containing three grounds of appeal.

HELD

Appeal Dismissed

ISSUES

Whether having regards to the circumstances of this case, the lower Court was right when it held that the Appellant’s claim was statute barred?

Whether Appellant’s right to fair trial was not violated by the lower Court when it failed to give full consideration to Appellant’s claims?

RATIONES DECIDENDI

REPLY BRIEF – PURPOSE OF A REPLY BRIEF

“In law, such mere repetitions ought simply to be discountenanced. In George Ekhator Obasuyi V. Michael Owenbiugie Eguagie (2021) LPELR -56119(CA),this Court per Georgewill JCA, had cause to reiterate the position of the law as it relates to proper use of a Reply brief by an Appellant inter alia thus:

“In law, the reply brief is not an avenue to reargue or reiterate earlier submissions or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).”

-PER B. A. GEORGEWILL, J.C.A

LIMITATION OF ACTION – WHETHER THE ISSUE OF LIMITATION OF ACTION AFFECTS THE JURISDICTION OF A COURT TO ADJUDICATE ON ANY MATTER BEFORE IT

“The issue of limitation of action is now regarded as a threshold question of jurisdiction and jurisdiction is fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding, if need be, to determining the substantive claim.

The above is so because jurisdiction is radical and sine qua non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such a situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31”. -PER B. A. GEORGEWILL, J.C.A