A Critique of the Recent Decision of the Supreme Court in Aba v. Board of Directors, NIPOST (2023) 5 NWLR (Pt. 1878) 475

This short piece seeks to critique the recent decision of the Supreme Court in Aba v Board of Directors, NIPOST wherein the apex Court affirmed the decisions of the lower courts and dismissed the Appellant's claim against the wrongful computation of his pension and gratuity benefits, on the grounds that the suit was statute-barred.

Facts of the Case

The 1st Respondent (NIPOST) maintained a policy according to which gratuity and pension for its employees were computed based on the employee’s salary grade level at the time of the employee’s retirement. In 2001, the 1st Respondent promoted the Appellant from the position of a Chief Postal Controller on Grade Level 14 to Assistant Postmaster-General (Operations) on salary grade level 15.?The Appellant later retired in 2003. Meanwhile, the Respondents had in December 2002 (a year before the Appellant’s retirement) reversed his earlier promotion from grade level 15 and demoted him to grade level 14 on the grounds that the Appellant's qualification was a Higher National Diploma (HND), and that Level 14 was the compulsory career termination ceiling for all holders of Higher National Diploma (HND). Because of the reversal, the Appellant’s salary was deducted but later refunded upon his complaint. After the Appellant’s retirement in 2003, the Respondents sent him his payment Voucher for gratuity in September 2004. Upon perusal of the Voucher, the Appellant discovered that his gratuity and monthly pension were computed on Grade level 14 instead of level 15. He complained and made efforts to have the matter resolved until July 2007 when the Respondents wrote to inform him of their inability to accede to his requests. In 2008, the Appellant instituted an action against the Respondents wherein he sought inter alia for a declaration that the reversal of his promotion from grade level 15 to Grade level 14 was wrong, illegal, malicious, and therefore null and void,?and that his outstanding gratuity and pension should be computed based on level 15 instead of level 14.

At the address/argument stage, the Respondents' counsel argued that the suit was statute-barred because it was not instituted within the time frame (12 months) stipulated under section 59 (1) of the NIPOST Act, 2004. The learned trial Judge upheld the Respondents’ argument and dismissed the suit for being statute-barred. But, ex abundanti cautela, the trial judge considered the merits of the case and granted all the Appellant’s reliefs in the event the matter goes on appeal and the Court of Appeal holds that the suit was not statute-barred. Indeed, the Appellant appealed to the Court of Appeal, but the appeal was dismissed and the trial judge’s decision that the suit was statute-barred was upheld. A further appeal to the Supreme Court was also dismissed on the same ground.

Comment/Critique

Section 59 (1) of the NIPOST Act provides as follows:

“Notwithstanding anything contained in any enactment whatsoever, no action shall lie or be instituted in any court against the Postal Service, a member or an officer of the Postal Service, for any act done in pursuance of an execution of any enactment or law, of any public duty or authority or in respect of any alleged neglect or default in the execution of such enactment or law, duty or authority, unless it is commenced within twelve months after the act or default complained of or, in the case of a continuous damage or injury, within twelve months next after the ceasing thereof.”

In applying the above provision, the Supreme Court held that the cause of action arose in September 2004 when the Appellant discovered that his terminal benefits were computed on Grade level 14 instead of Grade level 15 in which he allegedly retired. The Court then held that instituting the action on the 18th of July 2008 rendered the suit statute-barred. Although the Court acknowledged that the Appellant made efforts between 2004 and 2007 to negotiate and resolve the issue with the Respondents, it held that the “time devoted to negotiation will not be excluded from the period which should be taken into consideration for determination of the question whether a claim has been barred”.

Generally, any action that is instituted after the period stipulated or allowed by statute will become statute-barred, meaning that the right of the injured person to commence the action would have been extinguished by such law. See Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 at 149. However, there are exceptions to the rule. This includes (a) where there has been a continuance of the damage or (b) where the person relying on it (in this case, NIPOST) acted outside the colour of his office or outside his statutory or constitutional duty. In Aba’s case, although the Supreme Court (in considering the first exception) agreed with the Appellant’s submission that failure to pay pension due to him for grade level 15 retirees amounts to a continuous breach in law, it held that the said breach does not extend to the extent of resurrecting his right of action against his alleged wrongful demotion. In other words, the Court held that the Appellant’s claim for pension was tied to the claim for wrongful demotion. The apex Court however did not extensively consider the second exception. Having noted (see page 496) that the ‘action’ of the Respondents was “unlawful” and “impudent,” the Court, with profound respect, should have invoked the second exception in order to save the Appellant’s suit from being statute-barred. Furthermore, it is arguable that the decision of the Court would have also been different if the Court's attention was drawn to its previous decision in Abdulrahman v N.N.P.C. (2021) 12 NWLR (Pt. 1791) 405 (a similar case) wherein it considered section 12 (1) of the NNPC Act which is in pari materia with section 59 (1) of the NIPOST Act. In Abdulrahman’s case, the Appellant’s employment was terminated, and he sued to recover his pension and gratuity. The Respondent challenged the suit on the grounds that it was filed outside the 12-month period stipulated under the NNPC Act. The trial court overruled the objection, but the Court of Appeal reversed the trial court’s ruling. The Appellant appealed to the Supreme Court which unanimously allowed the appeal on the basis of sections 173 and 210 of the 1999 Constitution. These constitutional provisions state that any benefit to which a person is entitled in accordance with or under such law (referring to pension and gratuity) shall not be “withheld or altered to his disadvantage” except to such extent as is permissible under any law. The Court relied on and judicially stamped the Court of Appeal’s well-considered decision in Ugbeche v. N.N.P.C. (2016) LPELR-42133(CA) which held that a Limitation Statute (section 2 of the Public Officers Protection Act) is not applicable to claims of pension and gratuity. The apex Court then held that in so far as the Appellant’s claim relates to pension and gratuity, section 12 (1) of the N.N.P.C. Act could not apply to bar the appellant from instituting an action on the ground that same is statute-barred and that the said section 12 “appears to be inconsistent with section 173 of the 1999 Constitution which safeguards every citizen's pension and gratuity rights.”?

In conclusion, the above cases (Abdulrahman & Ugbeche) and constitutional provisions (sections 173 & 210) constitute the jurisprudence in support of the stance that claims relating to gratuity and pension cannot (and should not) be statute-barred. In Abdulrahman’s case, the Appellant’s claim was that his pension and gratuity were withheld, while in Aba’s case, the Appellant’s contention in effect was that his pension and gratuity were altered to his disadvantage. Therefore, sections 173 and 210 of the Constitution ought to have been applied in the latter’s case (as was done in the former’s case) to save the Appellant’s case from being statute-barred. This approach, it is humbly submitted, would have ensured the triumph of substantial justice over technical justice, and probably enabled the Court (as a policy making court) to judicially pronounce on the seeming issue of workplace discrimination suffered by HND holders.

Wishing you a very happy workers' day!

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