Ajao v The Permanent Sectretary, Ministry of Economic Planning Budget Civil Service Pensions Office (CA/L/922/2010) [2016] NGCA 22 (13 June 2016)

In the Court of Appeal
Holden at Lagos








This is an appeal against the Ruling of K. C. ALOGBA J. of the Lagos State High Court delivered on 28th April, 2010. 
The suit in the lower court was commenced by the Appellant as Claimant vide a Writ of Summons and Statement of Claim dated 29th February, 2008 together with the lists of witness and documents to be relied upon by the Appellant as well as a written statement on oath.
Pleadings were exchanged by the parties and subsequently on the Defendants filed a notice of preliminary objection dated 15th March, 2010 on the ground that the Claimant/Appellant's action was statute barred. This objection was upheld by the trial court in its Ruling of 28th April, 2010.
The Appellant dissatisfied with the Ruling appealed vide an Amended Notice of Appeal dated 14th May, 2015 filed on 15th May, 2015, on three (3) grounds.
The Appellant's brief is dated 14th May, 2015, and filed 15th May, 2015 same was settled by Abiodun Adewunmi Esq. of A. R. Adewunmi & Co., wherein he settled three issues for determination thus:

(1)    "Whether the learned Judge of the lower court was right in failing to appreciate that the right of the Appellant to his pension is guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
(2)    Whether the learned trial Judge was right when he held that the argument of the Appellant's counsel that time could not begin to run against the Appellant whilst parties were still negotiating because such a negotiation ought to have started before the expiration of the limitation period.
(3)    Whether the learned trial Judge was right when he held that "... the action is therefore caught by the provision of Section 2(a) of the Public Officer (Protection) Law... The effect of that is that the action becomes unmaintainable at law"

The Respondents' brief is settled by Kemi Olugbode (Mrs.) from the Attorney General's Chamber, of the Lagos State Ministry of Justice. A sole issue has been formulated thus:

"Whether the Appellant can maintain a sustainable cause of action considering the provisions of Section 2(a) of Public Officer Protection Law Cap. 26 Laws of Lagos State 1994 which renders the Appellant's claims statue barred and therefore incompetent and unmaintainable ".

I have carefully perused the issues formulated by the parties to this appeal. I believe this appeal can be adequately determined on a sole issue incorporating the issues formulated by the respective parties. The issue is:

1. "Whether having regard to the right to pension guaranteed under the 1999 Constitution of the Federal Republic of Nigeria and the circumstances of the instance case, the learned trial judge was right when he held that the Appellant's action is caught by the provision of section 2(a) of the Public Officer Protection Law, Cap P26 Laws of Lagos State?"

Arguing the appeal, and as to whether the lower court was right in failing to appreciate that the right of the Appellant to his pension is guaranteed under the Constitution of the Federal Republic of Nigeria 1999 and not a simple contract that could be extinguished by time, Appellant's counsel referred to Section 210 (1), (2) and (3) of the Constitution which guarantees to a person in the Public Service of a State the right to a pension. Subsection 2 entitles him to it, and same shall not be withheld, while subsection 3 provides for the review of the pension every five years. Therefore, the court ought to have taken this into the consideration and cannot be caught by the provisions of the Public Officers Protection Act. 
He referred to ADEKOYE v NSPMC [2009]5 NWLR (PT. 1134) 322 where the Apex Court held that the Constitution supersedes any other provisions, law or Act, therefore the Public Officers Protection Act is in direct conflict with the Appellant's right to his terminal benefits being properly calculated. He further referred to ISHOLA v AJIBOYE [1994] 6 NWLR (PT 352) AT 506.
On whether negotiation between parties can revive cause of action, he submitted that it is trite that negotiation can revive a cause of action which has become otherwise statute barred. He relied on EBOIGBE v NNPC [1994] 5 NWLR (PT. 347) page 649; RCC (NIG.) v BURATIO [1993] 8 NWLR (PT. 312) 508.

He argued that the Respondent did not prepare the calculation of the Appellant's terminal benefits, neither was it prepared till February, 2003 and same was not received by him till long after the said date. He referred to page 30 of the record. That it was computed on 17th January, 2003, five (5) months after retirement and same examined and certified by February, 2003 which is six (6) months. It is the submission of counsel that the Appellant can only complain when he became aware of the fact that the calculation was wrong and therefore that the learned trial Judge erred as to when time started to run which he held to be when Appellant retired i.e. 1st August, 2002.

On whether the Appellant's action is caught by Section 2(a) of Public Officer Protection Laws, he submitted that it is common ground that the Appellant had brought his case as per his right and entitlement to pension in the lower court pursuant to the provisions of the Pensions Act 1974 which was the applicable law as at the time the Appellant retired from the Lagos State Public Service in the year 2002. It is the submission of counsel that the applicable law is the Limitation Law of Lagos State, Cap L67 Laws of Lagos State
2003 and that Section 8(1) (e) permits a Claimant to bring an action for the recovery of any sum recoverable by virtue of any enactment with six (6) years of accrual of the cause of action. He contended that the Appellant's action herein was filed on 3rd March, 2008 and that same was brought within time and cannot be statue barred.

Arguing the brief of the 1st and 2nd Respondents, O. A. Olugbode (Mrs.) referred to Section 2 (a) of Public Officers Protection Law of Lagos State, 1994 and the cases of ARAKA v EJEAGWU [2005] 15 NWLR (PT 642) 68; TEXACO PANAMA INC V. SPDC LTD. (2002) FWLR (PT 36) 579; ALHAJI ABBA SANNI v PRESIDENT FEDERAL REPUBLIC OF NIGERIA & AG FEDERATION (2010) 9NWLR (PT. 1198) 153 CA to submit that the Appellant misconceived the Ruling of the trial court to the effect that the provisions of the Public Officers Protection Law of Lagos State are in direct conflict with the Constitution. It is the submission of counsel that the issue to be considered is whether the action is statute barred and not as to the Appellant's right to pension. She contended that the provisions of the law only prohibit the court from entertaining the any action that was not brought within the stipulated time. She relied on KASANDUB v PETROLEUM LTD [2008] 7 NWLR (PT. 1086) page 274 CA; UDO TRADING CO. v ABERE (2001) SSCJN 274 at 290; NWAKA v H.O.S. EBONYI STATE [2008] 3 NWLR (PT 1075) 156 CA; UNITY BANK PLC v NWAKIKE [2009] 4 NWLR (PT 1131) 352 CA to submit that the time for bringing an action starts to run from when a cause of action arose. Relying on EGBOIGBE v NNPC [1994] 5 NWLR (PT 347 649; EZEREBO v IGP [2009] 11 NWLR (PT.1151) 117 CA, counsel submitted that the Appellant cannot sustain the action and that the action is incompetent and the court lacks jurisdiction and same should be dismissed in its entirety. He referred to NWAKA v H.O.S EBONYI STATE [2008] 3 NWLR (PT.1073) 156 C.A.

On the part of this court, I have considered the argument of the respective counsel of parties to this appeal. The narrow issue to be considered herein is whether the Appellant's action is caught by the provision of section 2(a) of the Public Officers Protection Law, Cap P26, Laws of Lagos State, 2003. It is beyond dispute that the Respondents in the instant appeal are public officers for the purpose of the Law, hence the application of the law. However, the right of a Claimant or an injured person to commence or institute an action against a public officer after three (3) months of the act or omission complained of becomes statute-barred by virtue of Section 2 of the Public Officers Protection Law, Cap P26 Laws of Lagos State 2003, which provides:

"Where any action, prosecution or other proceedings is concerned against any person for any act done in pursuance 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 proceedings 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 or injury within three months next after the ceasing thereof."

Needless to state that the Public Officer (Protection) Law was obviously enacted to protect a public officer from detraction and unnecessary litigation but I believe that it never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice. Consequently, the Public Officer (Protection) Law does not provide a blanket protection for public officers. Thus, the Apex Court has recognized that certain exceptions to the protection provided for under the Law. These exceptions are: (a) Instances of continuance of damage or injury; (b) situation where the public officer acted outside the bound of his office or outside his statutory or constitutional duty; (c) cases of recovery of land; (d) breaches of contract; (e) claims for work and labour done; and (f) good faith. See A-G RIVERS STATE v A G BAYELSA STATE & ANOR [2013] 3 NWLR (PT 1340) 123; FGN v ZEBRA ENERGY LTD, [2002] 18 NWLR (PT798) 162.

Meanwhile, it is settled beyond citing of judicial authorities that limitation period with respect to an action is determined by reference to the Writ of Summons and the Statement of Claim and nothing more. This is to ascertain the date when the rights sought to be enforced the aggrieved party accrued and this is done by comparing that date with the date on which the writ of summons was taken filed. Where it is found that the date pleaded by the plaintiff in his writ of summons and statement of claim with respect to the time when the right to sue accrued is beyond the limitation period of three months under the Public Officers Protection Law, the action is statute-barred and thus incompetent. See EGBE v ADEFARASIN (No.2) [1987] 1 NWLR (PT 47) 1 SC; WOHEREM v EMERUWA [2004] 13 NWLR (PT 890) 398 SC.
In the instant appeal, the Appellant claim against the Respondents the following reliefs:

1.    "A Declaration that the unnecessary withholding of his terminal benefits is wrongful, null and void.
2.    An order that the Defendants to pay the terminal benefits calculated in the sum of N247,000.00 monthly salary from 1st August 2002 the gratuity will be N8,892,000.00 (eight million eight hundred and ninety two thousand naira) and the pension arrears from 1st August 2002 to 31st March 2008 in the sum of N16,796,000.00 (sixteen million seven hundred and ninety six thousand naira). The total sum being N25,688,000.00 (twenty five million six hundred and eight thousand naira) with interest at the rate of 20% per annum will be N52,070,l 15.00 (fifty two million seven thousand one hundred and fifteen naira)
3.    The sum of N5m (five million naira) being general damages for the psychological trauma and untold hardship the delay in the payment of the Claimant's terminal benefits."
It is apparent from the reliefs sought by the Appellant as reproduced above that the Appellant's claim in predicated largely on his entitlement to pension from the date of his retirement up till when the action at the lower court was filed at the lower court. It is based on the Appellant's complaint as to the withholding without lawful justification of his terminal benefits.
The relevant paragraphs of the Statement of Claim are hereunder reproduced:

1.    The Claimant was in service for Lagos State Government for over 31 years and retired as a Permanent Secretary on 1st August 2002.
2.    The 1st Defendant is the Permanent Secretary in the Ministry of Economic Planning and Budget, Civil Service Pension Office which is responsible for payment of terminal benefits including pensions and gratuity.
3. The Defendant is responsible for all legal matters in Lagos State.
4.    Claimant avers that since his retirement on 1st August, 2002, he has not been paid his terminal benefits and after failing in his personal efforts to get his benefits; that in July 2007 he instructed his Solicitor, C. A. SHONEKAN & ASSOCIATES to handle the matter on his behalf.
5.    The Claimant avers that his Solicitor wrote a letter dated 27th July, 2007 to the 2nd Defendant on the computation of the Claimant's terminal benefits.
6.    The Claimant avers that his Solicitor received a copy of letter dated 24th August, 2007 addressed to Permanent Secretary, Civil Service Pension Office from the Ministry of Establishment and Training, that the amount of N247, 000.00, monthly salary should be used in computing the Claimant's terminal benefits and that the benefit should be for life as he had put in over 20 years continuous service as a career officer.
7.    The Claimant avers that the he instructed his Solicitor to reply the above letter in paragraph 6 supra with letter dated 12th September, 2007 asking for interest on the terminal benefits at the rate of 20% per annum.
8.The Claimant avers that the 1st Defendant replied his Solicitor in letter dated 17th October 2007 that the payment of interest on retirement benefit was not within their rules.
9. The Claimant instructed his Solicitor to write another letter dated 7th November, 2007, and the 2nd Defendant's reply dated 29th November 2007 confirmed that the Solicitor's letter had been appropriately dealt with.
11. The Claimant avers that he instructed his Solicitor to write a final demand dated 9th January, 2008 to the Defendants as the delay in receiving his terminal benefits had become too unbearable.
13. Further to paragraph 12 supra the 2nd Defendant replied vide letter dated 22nd January 2008 that a request had been made for audited computation sheet to process the Claimant's terminal benefits which still has not been made available to the Claimant.

In the case of pension the cause of action actually continues from month to month. I believe that the right of the Appellant, to be paid the correct terminal benefit .according to the computation made, in accordance with the applicable rules, is akin to the right of redemption, which is an incident of a subsisting mortgage, and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished.

To this extent and particularly as it relates to continuance of damage or injury resulting from failure of the Respondents to pay the Appellant his terminal benefits including his pensions guaranteed under section 210 of the 1999 Constitution, the Public Officer (Protection) Law undoubtedly permits actions as in the instant appeal, to be brought on the cessation thereof outside three months. This is the position of the law as expounded by GALADIMA, JSC in the case of A G of RIVERS STATE v A G BAYELSA STATE & ANOR. (supra) at pages 148-149, paras H-A thus:

"In cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the Defence is not available to the 1st Defendant...."

With respect, having examined the Writ of summons as well as the earlier reproduced paragraphs of the Appellant's statement of claim, I am of the firm view that the lower court erred in the conclusion it reached that the Appellant's claim is statute barred. The date the writ of summons was filed as well as the circumstances of the events leading to the action as per the statement of claim show that the Appellant's action is not statute-barred. The period and events covered by the claim of the appellant spans from 1st August, 2002 when he retired as a Permanent Secretary after thirty-one (31) of service to 22nd January 2008, the date of the last correspondence from the Respondents' to the Appellant and even continues further till the commencement of the action on the 29th of February, 2008 as it shows that the Respondent continually failed to deprive the Appellant of his entitlements. See AREMO II v ADEKANYE [2004] ALL FWLR (PT 224) 2113; BATTISHILL v REED (1856) 18 CB 696 at 714.
It must be conceded that as argued by the Appellant's counsel, A. Adewunmi Esq., the right of the Appellant's counsel to pension is a constitutional right guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 210 thereof reads:
1.    "The right of a person in the Public Service of a State to receive pension or gratuity shall be regulated by law.
2.    Any benefit to which a person is entitled in accordance with or under such law as is referred to in the subsection (1) of this Section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.
3.    Pensions shall be reviewed every 5 years or together with any state civil servant salary review whichever is earlier.

Therefore, pension is not merely a statutory right of the Appellant in the instant appeal. Ipso facto it is the fulfillment of a constitutional promise so that the relevant laws or rules made pursuant to section 210 of the Constitution are enacted for effective execution of the constitutional mandate entrusted to the government. Thus, the payment of pension does not depend on the discretion of the government but is governed by the rules and anyone entitled to pension can claim it as a matter of right. The learned trial judge ought to have considered the constitutional right of the Appellant to his pension which is a continuing right before holding that the Appellant's claim is statute-barred.

A fortiori, it is undisputed that the Respondents were in negotiation with the Appellant as to the computation of the correct sum to which the Appellant is entitled to. I believe if the learned trial Judge had considered the applicable legal principles ids a vis the statement of claim before him, he would have come to a contrary conclusion to the effect that even if the instant case does not fall within the exceptions earlier enumerated, hence within the ambit of section 2 (a) of the law, the Appellant's action will nonetheless not be statute-barred. With respect, and contrary to the argument of O. A. Olugbode (Mrs), the learned trial judge ought to have taken cognizance and considered the events of this case particularly the dates covered by the entire claim, including retirement of the Appellant on the 1st of August, 2002, the correspondences exchanged by the Appellant's solicitor on the one hand and the Respondents on the other hand as to the computation of the Appellant's terminal benefits. See paragraphs 3 to 13 of the statement of claim at page 3 to 4 of the record of appeal.

Without prejudice to my earlier decision that the action falls under the exception as to continuing wrong of the Respondent, I must say that the period when the cause of action should be deemed to accrue in relation to the instant case is 22nd January, 2008 and if three months is calculated therefrom, the Appellant's action commenced vide the writ of summons dated 29th February, 2008 is competent. Therefore, assuming as argued by the Respondent's counsel that the Public Officers Protection Law applies to the Appellant's claim, same is not statute-barred as the suit was filed within three months as prescribed under the law. A consideration of paragraphs 4 and 5 of the Statement of Claim vis a vis the reliefs sought shows clearly that after not being paid shortly after his retirement his entitlements and in response to the Appellant's letter, the Respondents' letter of 24/5/2007 was that they were yet to conclude the arrangement for proper computation of the benefits. Therefore, it cannot be successfully argued that the action is statute barred within three months of the Appellant's retirement.
The sole issue is resolved in favour of the Appellant. Therefore, the appeal is meritorious and it is hereby allowed. The Ruling of ALOGBA J., of High Court of Lagos State, delivered on 28th April, 2010 is hereby set aside. The matter is remitted to the Chief Judge of High Court of Lagos State for reassignment to another Judge of the court and same shall be accorded accelerated hearing. Costs of N50,000.00 is awarded in favour of the Appellant.
SIDI DAUDA BAGE I have had the honour of reading in draft the lead judgment of my learned brother A. O. OBASEKI-ADEJUMO, JCA. My brother has covered the entire space, leaving non to me to add anything useful.
Accordingly, this appeal is meritorious and is hereby allowed. The ruling of Alogba J. of High Court of Lagos State, delivered on 28th April, 2010 is also set aside by me.

I abide by the consequential order made in the lead judgment

JOSEPH SHAGBAOR IKYEGH, J.C.A. I had the honour of reading in print the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., with which I agree and add by way of emphasis that the cause of action accrued upon the completion of the computation of the terminal benefits of the appellant by the respondents and the communication of the same to the appellant by the respondents. See the case of Savage and Others v. Uwaechia (1972) A.N.L.R. 255 where the Supreme Court held inter alia that a cause of action is complete when the fact or combination of facts which give rise to a right to sue comprise the wrongful act of the defendant coupled with the cause of complaint and the consequent damage to the plaintiff.

In the result, time started to run on the date the completed computation of the terminal benefits by the respondents was served on the appellant; but the running of the time for the purpose of time bar would stop during the time the continuing wrong of non-payment of the pension due to the appellant was at all material times in progress.
I too would allow the appeal and abide by the consequential order(s) in the lead judgment.?

Not available.
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