Kwara State Pilgrims Welfare Board V. Alhaji Jimoh Baba (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the decision of the Court of Appeal, Ilorin Division delivered on the 15th day of December, 2004, wherein the lower Court allowed the appeal by setting aside the judgement of the trial Court with its consequential Orders.
SUMMARY OF FACTS
The Appellant, as Plaintiff at the trial Court filed the suit leading to the instant appeal at the High Court of Kwara State, sitting in Ilorin. The Respondent was at all material time to this case, a finance clerk with the Appellant who was charged with the responsibility of assisting the Appellant’s accountant in lodgements of money in banks. On 11th April, 1994 both the Respondent and Appellant’s accountant went to the Kwara State Government House at Ilorin to retrieve the Appellant’s money for lodgement at the United Bank for Africa (UBA), Ilorin branch. The monies were kept in three separate bags containing N683,590:00; N782,550:00 and N310,201:00 respectively.
The Appellant’s accountant left the Respondent with the monies to attend to other urgent engagements relating to the yearly Hajj operations on the assumption
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that the Respondent would deposit the various sums at the designated bank. The Respondent deposited the money but kept the sum of N310,210:00 which, according to him, was not lodged in the designated account of the Appellant, as the Bank had heavy transaction on the particular day.
The day following, the Respondent failed to lodge the money. It was subsequently discovered that, the sum of N125,000:00 was missing from the bag containing N310,210:00 which was handed over to the Respondent for deposit in the bank. The Appellant then instituted this action at the High Court of Justice of Kwara State, sitting in Ilorin. The trial Court delivered its judgement on the 2nd of May, 2000 and found in favour of the Plaintiff (the Appellant herein) and granted the reliefs sought in part.
Being dissatisfied with the judgement of the trial Court, the Respondent (then as Defendant) filed an appeal at the Court of Appeal, Ilorin Division. The lower Court on 15th December, 2004 gave judgement in favour of the Respondent (as Appellant) on the ground that the suit at the trial Court was statute barred in view of the provisions of Section 2
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of the Public Officers Protection Law of Kwara State, Cap 135, Vol. 3, Laws of Kwara State, 1994. The lower Court then allowed the Appeal and set aside the judgement of the trial Court, as contained at pages 128-144 of the Records.
The Appellant’s displeasure at the judgement of the Court below led to the instant appeal. This appeal was brought pursuant to a Notice of Appeal filed on the 11th March, 2005 at the Registry of the lower Court, and is premised on two grounds.
ISSUES FOR DETERMINATION:
The Appellant formulated two (2) issues for determination at page 5 of its Appellant’s Brief dated 20th November, 2006 thus:
1)Whether the Defendant/Appellant (now Respondent) is entitled to Protection under the Public Officers Protection Law of Kwara State, Vol 3, Cap 135, 1994 as held by the lower Court of Appeal (Ground 1).
2) Whether the failure, refusal and/or neglect of the Court of Appeal to consider other issues properly formulated by the parties before it has occasioned miscarriage of justice against the Appellant herein (Ground 2).”
On its part, like the Appellant, the Respondent also formulated two (2) issues at pages 5-6 dated
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3rd of October, 2007, thus:
“(1) Whether or not the defendant/Respondent herein is a public officer, entitled to statutory protection from a legal action by the Plaintiff/Appellant herein, within the con of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.
(2) Whether the failure, refusal and/or neglect of the Court of Appeal to consider other issues properly formulated by the parties before it has occasioned miscarriage of justice against the Appellant herein.”
It is my considered view that all the issues could be summed-up and sufficiently answered under one (sole) issue for determination, as the Respondent has already adopted issue 2 of the Appellant as its issue 2 in its Respondent’s brief. I am also of the view that a resolution of issue 1 would naturally determine issue 2, which borders on whether or not a miscarriage of justice has been occasioned against the Appellant. Therefore, for the purpose of determining this appeal, I have adopted, with slight modification, issue 1 as formulated by the Respondent, thus:
“(1) Whether the Respondent is a public officer entitled to statutory protection from a legal
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protection from a legal action by the Plaintiff/Appellant herein. within the con of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
The contention of the Appellant is that, the lower Court gave a wrong interpretation of Section 2 of the Public Officers Protection Law of Kwara State, 1994 thus occasioning grave miscarriage of justice to the Appellant. This, the Appellant Counsel contended, was due to the fact that the lower Court failed to advert its attention to the provisions of Order 04118 of Chapter 4 of Kwara State Civil Service Rules under which the Appellant and Respondent contractual relationship arose.
Order 04118 provides that:
“Suspension should not be used as a synonymy for interdiction. It shall apply where a prima facie case (the nature of which is serious) have been established against an officer and it is considered necessary in the public interest that he should forthwith be Prohibited from carrying on his duties. Pending investigation into the misconduct, the State Public Service Commission or the Head of Department (if within his
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delegated Powers) shall forthwith suspend him from the exercise of the Powers and functions of his office and from the enjoyment of his salary.”
The learned appellants Counsel submits that by virtue of the provisions of the Order, any staff suspended for any misconduct like in this instance, is prohibited from carrying on his duties as a Public Officer and shall cease to exercise the powers and functions of his office as a Civil Servant. Counsel submitted that the above provisions is clear and unambiguous and the Court ought to have given its original meaning as required by law, citing the decision of this Court in KOTOYE VS SARAKI (1994) 7 NWLR (PT. 357) 414 at 460 at para H-G.
The learned counsel contended that the cause of action arose on 11th and 12th of April, 1994 and that the Respondent had been suspended as far back as 20th June, 1994 as stated in the evidence of PW3 as contained at page 41 of the Record of Proceedings, and contended that the Respondent has ceased to be a Civil Servant and/or public officer who is entitled to protection of the Public Officers Protection Law since 20th June, 1994 when he was suspended pursuant to Order
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04118, Chapter 4 of Kwara State Government Civil Service Rule (supra).
The learned Counsel for the Appellant further relied on the provisions of Section 54 of the Interpretation Law, Cap 78, Laws of Kwara State of Nigeria, 1994 to draw home his contention that the word “Public Office” or “Public Department” extends to every office or department performing the duties and functions of a public nature. The learned Appellant’s Counsel, now SAN, submitted that the case of AIYETAN V. NIFOR (1987) 3 NWLR (Pt. 59) 48 at 71 relied upon in the judgement of the lower Court is not applicable and that the lower Court would have arrived at a different conclusion if it had adverted its attention to the case of PDP v. INEC (1994) 7 SCNJ, 297 at 370.
Counsel further submitted that the Public Officers Protection Law (Supra) is intended to protect the officers who act in absolute good faith and who at all material time acts within the confines of their public authority and not those who breached the trust like the Respondent. Counsel cited the case of NWANKWERE VS JOSEPH ADEWUNMI (1966) All NLR, Page 119 at 124, where this Court held that “Law is designed to protect the officer who acts in good faith and does
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not apply to acts done in abuse of office and with no semblance of legal justification.” The learned Counsel to the Appellant also relied on the case of LAGOS CITY COUNCIL (TRADING UNDER THE NAME OF LAGOS CITY TRANSPORT) VS. S.S.J. OGUNBIYI (1969) ALL NLR 287 at 289 and prayed this Court to resolve issue 1 in favour of the Appellant.
On issue 2, the learned Senior Counsel to the Appellant submits that failure, refusal and/or neglect of the Court of Appeal to consider all the issues properly formulated by the parties before it in its judgement has caused a miscarriage of justice against the Appellant. This is because, the learned Counsel contended, the Appellant raised three other issues that were not considered by the Court of Appeal in its decision. counsel contended that the Courts are bound to pronounce on all issues properly placed before them, citing the case of BRAWAL SHIPPING LIMITED VS F.I. ONWADIKE CO. LIMITED (2000) 11 NWLR (Pt. 678) 387 at 403-404, GLOBAL TRANS OCEANIC CO. S.A V. FREE ENT. (NIG) LTD (2001) 5 NWLR (Pt. 706) 426 at 442, Paras C-D.
In his final submission, the learned Counsel prayed
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this Court to allow this appeal in its entirely and set aside the judgement of the lower Court.
The main contention of the learned counsel for the Respondent is that temporary suspension of the Respondent does not deny him of protection under the Public Officer Protection Law (supra), this, Counsel pointed out was well considered in the judgement of the lower Court per the late Ikongbeh, JCA., at page 141. He contended that even Order 04118 of Chapter 4 of the Kwara State Government Civil Service Rules relied upon by the Appellant clearly recognises that temporary discountenance of both work and pay of a public officer does not necessarily signify the end of the contract of employment. The learned counsel to the Respondent deployed and quoted extensively from the decision of the Court below to justify his position.
Counsel objected to the attempt of the Appellant to raise new issues in its paragraphs 3.10 to 3.15 that the Respondent acted maliciously and in bad faith to justify why he is not entitled to protection under the law. He contended that same was not covered by the two grounds raised in the Notice of Appeal. Counsel cited the case EMESPO VS. CORONA
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SHIFAH-RTSGESELLSCHAFT (2006) 5 SC. Page 19 at 29 to 30 and TIZA VS BEGHA (2005) 5 SC (Pt.11) at 1 per Kalgo, JSC at page 21.
In the alternative, the learned Counsel to the Respondent submitted by quoting the phrase of Obaseki, JSC in EGBE VS ADEFARASIN (1985) 1 NWL.R (Pt. 3) 549 at 581, thus:
“it does not take good faith to avail a defendant the specie of defence of limitation of action nor does it require malice to deprive him of the defence.” Counsel also quoted Nnamani, JSC., in EGBE VS ALHAJI ABUBAKAR ALAHAJI (1990) 1 NWLR (Pt. 128) 546 at 584.
On issue two, the learned Respondent’s Counsel acknowledged that the Supreme Court had admonished all Court to pronounce on all issues properly placed before them. However, counsel contended that this is a general rule with exception to the extent that where retrial is ordered or the judgement is considered a nullity, it would not be necessary to consider all issues so submitted. He cited the case of OKONJI VS. NJOKANMA (1991) 7 NWLR (Pt. 202) 131 and BRAWAL SHIPPING LTD Vs. F.I ONWADIKE CO. LTD (2000) 11 NWLR (Pt.678) 387 at 403 and ANYADUBA vs N.R.T.C. LTD (1992) 5 NWLR (Pt.243) 535.
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In his final submission, the learned Counsel for the Respondent contended that the lower Court correctly arrived at its view by considering only live issues. Counsel then urged this Court to hold that the decision of the lower Court did not amount to denial of fair hearing or miscarriage of justice, and admonished us to resolve both issues in favour of the Respondent and dismiss the appeal by affirming the decision of the lower Court.
I have taken note of the Appellant’s Reply dated 5th March, 2008. In its Appellant’s Reply brief, the Appellant merely re-argued or amplified the Respondent’s submission. Clearly, a Reply brief is meant to cause a reply to new issues (if any) raised in the Respondent’s brief and not meant to reappraise or rebuild the Appellant’s submissions in his or her briefs. See HARKA AIR SERVICES (NIG.) VS KEAZOR, ESQ. (2011) LPELR- 1353; LONGE VS F.B.N PLC (2010) 6 NWLR (PT. 1189), P.1; SHUABU VS MAILODU (1993) 3 NWLR (Pt. 284), 784; and POPOOLA VS ADEYEMO (1992) 8 NWLR (PT. 257) 1.
However, I observed that in its reply on the issue of whether or not the Appellant raised new issues bordering on bad faith on the part of the
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Respondent as basis for the submission that he was not covered or protected by the Public Officers Protection Law (supra); the learned Appellant’s Counsel contended that new line of argument on an issue is not synonymous with new issues. To buttress his arguments, the learned Counsel cited, as persuasive authority, the case of CEDAL STATIONARIES LTD vs. IBWA LTD (2000) 15 NWLR (Pt. 690) 338 at 347, Para H-B.
The learned Counsel for the Appellant responded further that, where the Defendant/Respondent acted in abuse of office that should constitute a defence in favour of the Appellant to defeat the claim of the Respondent. Counsel referred us to the case ofIBRAHIM VS JUDICIAL SERVICE COMMITTEE (1998) 12 SCNJ, 255.
I now turn to answer the issue: “Whether the Respondent is a public officer entitled to statutory protection from a legal action by the Plaintiff/Appellant herein, within the con of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.”
It seems the parties are at consensus that there was a third bag containing the sum of N310,210:00 and which bag was in the custody or control of the
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Respondent from which he held back the sum of N125,000:00. The evidence on this issue is settled, and seemingly incontrovertible. This singular act prompted the chain of reactions from the Appellant, ranging from suspension to filing of a suit at the High Court of Kwara State. To defeat the suit, the Respondent contended that being a public officer, he is entitled to statutory protection from a legal action from the Plaintiff/Appellant herein, within the con of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.
The issue in this appeal goes beyond the three months rule of limitation of action against a Public Officer. In the con of this appeal, the lower Court would have seen a bigger picture of fraud and financial infelicities or breach of public trust on the part of the Respondent, if it had not regarded the issue of limitation of 3 months rule as the most crucial issue to be determined in the appeal. This is because, the lower Court anchored its decision on the 3 months limitation without having the benefit of much more vital issues of whether the said protection is intended to be used to defeat the ends of justice.
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The error of judgement becomes more apparent looking at the last paragraph of page 138 of the Records, which contains the judgement of the lower Court. In its final remarks, the lower Court declared, and I think erroneously, that: –
“Finally, in this appeal the resolution of the most important issue i.e. issue No. 1, is in favour of the Appellant (now Respondent) the appeal has succeeded and must therefore be allowed. It is accordingly allowed by me. The judgement of the lower Court is hereby set aside with its consequential Orders. For the avoidance of any Possible doubt, all the reliefs awarded by the lower Court are hereby set aside. Appeal allowed (emphasis added).”
The question is, would the Public Officers Protection Law have intended to protect fraudulent public officials The answer is a capital NO. I’m in accord with Appellant that Section of the Public Officers Protection Law (supra) ought to read in consonance with the provisions of Order 04118 of Chapter 4 of Kwara State Civil Service Rules under which the Appellant and Respondent contractual relationship arose. This is because Order 04118 provides that: –
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“Suspension should not be used as a synonymy for interdiction. It shall apply where a Prima facie case (the nature of which is serious) have been established against an officer and it is considered necessary in the public interest that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the State Public Service Commission or the Head of Department (if within his delegated powers) shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his salary.”
The veil of any protection of the Respondent under the Public Officers Protection Law is lifted, removed, suspended or is kept in abeyance once he has been suspended from functioning or exercising the duties of a Public officer. Thus, by virtue of the provisions of the Order, any staff suspended for any misconduct like in this instance, is prohibited from carrying on his duties as a Public officer and shall cease to exercise the powers and functions of his office as a Civil Servant. This is the clear and unambiguous provision of the order and ought to be given its fullest effect to avoid defeating the objective of probity in public service.
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See KOTOYE VS. SARAKI (1994) 7 NWLR (Pt. 357) 414 at 460 at Para H-G. See also ATTORNEY-GENERAL OF ONDO STATE VS. ATTORNEY-GENERAL OF EKITI STATE (2001) 17 NWLR (Pt. 743) 706 at 756 where this Court declared that: –
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the Power and duty of the Court to travel outside them on voyage of discovery are strictly limited (see for example Magor and St. Mellon R.D.C VS NEWPORT (1951) 2 All E.L.R. 839, LONDON TRANSPORT EXECUTIVE VS BETTS (1959) AC 231, ATTORNEY-GENERAL OF BENDEL STATE VS ATTORNEY-GENERAL OF THE FEDERATION & ORS. (1981) 10 S.C. 1, (1981) 12 N.S.C.C. 314.).”
It is not, and cannot be the intention of the law to compensate dishonest public officers with statutory protection that defeats the essence of probity in public service. The question is, would it have been
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the intention of the Public Officers Protection Law to offer a shield and protect public officers found to have violated public trust The answer again is certainly NO. Doing otherwise would amount to incentivising dishonesty in public service by encouraging potential violators of public trust to benefit and reap the evil fruits of their dishonest behaviour at the expense of national good and public morality. This should never be allowed to happen.
I wish to make a quick reference to the case of Godwin NWANKWERE VS JOSEPH ADEWUNMI (supra) to the effect that the law (that is Public Officers Protection Law – an adaption of the Public Officers Protection Act), is designed to protect the officer who acts in good faith and does not apply to acts in abuse of office and with no semblance of legal justification whatsoever. See also LAGOS CITY COUNCIL VS. S.A.J OGUNBIYI (supra).
The duty of Court, particularly ours as the Apex Court, is to interpret the statute in accordance with the intention of the law makers. This point is apt in this appeal, as amplified in UGWU vs. ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 where this Court stated thus: –
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“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
Ours is a Court of law and of public policy. We are clear as to the public good behind the public policy intended in the regime of Public Officers Protection law at the Federal and States levels. We are also not unmindful of the intendment of the makers of the law and Order 04118 of Chapter 4 of Kwara State Civil Service Rules under which the Appellant and Respondent contractual relationship arose. We have reconciled and matched both against the facts and evidence before the Court in this appeal. Justice must not be allowed to be “slaughtered” on the altar of technicalities.
This Court has declared in several instances that we are not judicial technicians in the workshop of technical justice and the logic of our reasoning is, and as humanly possible, be devoid of technicalities in this case, as in several other previous and
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up-coming cases. The need to do substantial justice and avoid delving into the error of technicalities is well settled. See for example MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 at 476-477 where it was declared that: –
“The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON vs. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.
A number of points have been made that informed our final decision in this appeal. At this stage when respect for probity and public trust is probably, at its low ebb due to corruption and institutional decadences in public service, it would amount to disservice to the
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polity if this Court allows misplaced or misconceived technicalities to distort public service.
In the final analysis, it is my candid view, based on law and public policy, that no law worth even the piece of papers on which it is printed, if it dignifies corrupt and untrustworthy public servants with statutory protection for committing offences, misconduct and infraction of public interests, good conscious and morality.
In view of the foregoing, and to instil and set an agenda for public probity based on law, the sole issue for determination in this appeal is resolved in favour of the Appellant. This appeal succeeds and it hereby allowed. The judgement of the Court of Appeal delivered on 15th December, 2004 hereby set aside. The decision of the trial Court and its consequential orders dated 2nd May, 2000, is hereby restored.
There shall be no order as to cost.
SC.164/2006
