Mr. Fidelis Okirika Agboroh V. The West African Examinations Council (Waec) (2016)
LawGlobal-Hub Lead Judgment Report
ITA GEORGE MBABA, J.C.A.
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
1
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,
(See pages 2 and 7 of the Records of Appeal)
The Defendant (now Respondent) filed its defence but also filed a motion on 28/10/13, praying for the following relief:
(1) An order setting down for hearing and determination the following preliminary point of law raised in paragraph 3 of the Defendants statement of Defence on record, that is:
That this suit is statute barred, in that the claimant commenced the Suit against the Defendant a public officer, more than three months after the cause of action arose contrary to the provisions of Section 2(a) of the Public Officers Protection Act, Cap P41, Laws of the Federal Republic of Nigeria, 2004, thus robbing this Honourable Court of the jurisdiction to entertain the suit.
(2) An order dismissing the suit for being incompetent.
Further take Note that the grounds upon which this motion is brought are as contained in
2
the accompanying affidavit.
Appellant filed a counter affidavit on 4/11/13 to oppose the motion, and parties filed written addresses, which the trial Court considered upon the hearing of the application. The decision of the trial Court favoured the applicant and the suit was dismissed. The trial Court said on page 174 of the Records;
The claimant does not dispute the two basic facts above, namely the date the cause of action arose, and that on which he came to Court. He nonetheless argued that his case is not caught up by the limitation provided by Section 2a of POPA. His main defence is that the Defendant is not a public officer, therefore, not entitled to the protection under Section 2a of POPA. In the circumstances therefore, and for all the reasons given, I hold that the defendant is a public officer entitled to protection under Section 2a of the Public Officers Protection Act, Cap P41 LFN 2004. It is my holding that this action is statute barred, having been brought outside the three month period stipulated by Section 2a of the Public Officers Protection Act, Cap P41, LFN, 2004
That is the decision Appellant
3
challenged in this appeal, as per the Notice of Appeal on pages 176 to 177 of the Records of Appeal, which disclosed 2 grounds of Appeal. Appellant filed his brief of argument on 8/4/15 and donated two issues for the determination of the appeal.
The Respondent field its brief on 25/5/15, which was deemed duly field on 29/2/16. In the Brief the Respondent raised a Notice of Preliminary objection, saying that the two issues for determination of the appeal, by the Appellant, did not arise from any of the grounds of appeal. He, however, in the alternative, donated a sole issue for the determination of the appeal, as follows:
Whether the Respondent is a public officer entitled to the protection offered by Section 2(a) of the Public Officers Protection Act
Appellants two issues for determination were:
(1) Whether the defendant is a public officer and thus entitled to enjoy the protection under Section 2 (a) of Public Officers Protection Act (Ground 1)
(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. (Ground 2)
When the Appeal was heard on 6/6/2016, Counsel on behalf of the parties, adopted their briefs and urged us accordingly. The Respondent, surprisingly, did not argue the preliminary objection and did not even call any attention to it. What that means is that the Respondent had abandoned interest in the said preliminary objection, which it did not even file, separately, or at all, and pay for the process (that is, the preliminary objection).
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. See the case of Registered Trustees of the Airline Operators of Nigeria vs Nigerian Airspace Management Agency (2014) LPELR- 22372, where the Supreme Court said:
I think it is fair to say that the method of raising a preliminary objection, apart from giving the appellant three clear days notice from the date of hearing, is now firmly settled. The respondent may file a
5
separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the respondent or his Counsel to seek the leave of the Court to move the objection during the oral hearing of the appeal the effect of the failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See Tiza & Anor. Vs Begha (2005)15 NWLR (Pt.949) 616; (2005) 55C (Pt.11)1 at 7, where His Lordship Musdapher JSC stated, thus:
By virtue of Order 5 Rule 15(1) of the Court of Appeal Rules, a respondent intending to reply upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of the objection. Notice of preliminary objection can also be given in the respondents brief but a party filing it in the brief must ask the Court for leave to move the objection (when) the oral hearing of the appeal commences. See Nsirim vs Nsirim (1990)3 NWLR (Pt.138) 285; Okolo vs UBN (1995) 2 NWLR (Pt.
6
539) 618; Arewa Textile PLC vs Abdullahi & Brothers Owsawa Ltd (1998)6 NWLR (Pt.554) 508; Ajide vs Kelani (1985)3 NWLR (Pt.12)248.
I therefore strike out the preliminary objection, raised by the Respondent in its brief of arguments, same having been abandoned.
Arguing the appeal, learned Counsel for the Appellant, Nwabueze Okorie Esq (who settled the brief), on issue one, answered the poser in the negative. He argued that the Public Officers Protection Act did not define who a public officer is. He however noted that Section 18(1) of the Interpretation Act, Cap 123 LFN 2004, elucidate, thus:
A public officer means a member of the Public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999; or the Public Service of a state.”
Counsel also referred us to Section 318(1) (a) (h) of the 1999 Constitution, as amended, which defines Public Service of the Federation and said that from the said Provisions, it is indubitable that the Defendant is not a public officer, but an institution; that the defendant is an autonomous regional organization, having its headquarters
7
in Ghana and Controlled by a Registrar based in Ghana, whose term of office is rotational.
He added that the employment, salaries, promotion and dismissed of its Nigerian Staff are control by the Head of Nigeria Office (HNO) who reports directly to the office of the Secretary General, based in Ghana; that the Registrar can be a citizen of any member State. This is why the Head of Nigerian Office uses foreign Plate Number and his conduct is regularized by the regional office in Ghana. He said that the financial support enjoyed by the defendant from Nigerian government is merely that of a big brother role as the Nigeria Government does to other agencies in the African Region, as such the defendant is not a public servant. Counsel relied on Section 14 – 18 of the WAEC Act. He also relied on the case of Mr. Fidelis Okrika Agboroh vs WAEC (particulars not supplied).
On issue 2, whether the suit is statute barred, having commenced this case vide Lagos State High Court Suit No.LD/1845/09 of 5th November, 2009, Counsel answered in the negative. He submitted that this suit actually started on 5th November 2009 as No.LD/1845/09.
Counsel, however,
8
admitted that this fact was not stated in the earlier statement of claim of the Claimant, and that that fact was not even made clear to him when he took over the case. He insisted that Appellant started this case after exhausting all the necessary appeal procedures as laid down by the defendant organisation, that the defendant had earlier moved a motion on notice in the Lagos High Court, where it stated that the claimant has not exhausted all appeal procedures, when it knew that it will take time before all the appeal procedures could be met, and that that could not be done without exceeding the three months it now relied on. He said that the respondent was speaking from both sides of the mouth; that at the Lagos High Court the Respondent said Appellant did not exhaust the appeal procedures before seeking the intervention of the Court, but in the Lower Court (National Industrial Court) the Respondent said the matter was statute barred.
Counsel argued that the suit was started within the 3 months complained of at the High Court of Lagos, but it was struck out on 13/3/13 for want of jurisdiction, when the 1999 Constitution was amended to oust the
9
jurisdiction of the Lagos High Court to hear the case, in favour of the National Industrial Court. He referred us to the ruling of Hon. Justice A.A. Oyebanji on this.
Counsel urged us to resolve the issues for Appellant and allow the appeal.
The Respondents Counsel, Chief J.K. Ezebunwa, with
Him F.E. Ezebunwa Esq and N. J. Ezebunwa (Mrs), submitted that it is the claimants claim, as contained in the writ of summons and the statement of claim, that determines the jurisdiction of the trial Court; that Appellant had averred that the Respondent is a statutory body charged with the conduct of public examinations (see page 5 of the Records) and had deposed to that fact in paragraph 2 of his deposition at page 10 of the Record of Appeal.
Counsel submitted that the Respondent is a statutory body established in Nigeria under the West African Examinations Councils Act, Cap W4 Laws of the Federation of Nigeria (the WAEC, Act). He argued that a community reading of the provisions of the Act indicates, clearly, that the Respondent is a public officer, that is to say:
(a) The nature of its function to conduct public examinations in
10
Nigeria as contained in Section 1 of the Act;
(b) The proviso in Section 1 giving the President Power to give instructions to the Council
(c) The functions of the Respondent as defined in Section 2;
(d) The provision in Section 6 relative to the application of the Pensions Act to employees
as if the office were in the service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999; and
(e) The provision in Section 8 for the compulsory acquisition of the land on behalf of the Respondent.
Counsel relied on Section 18(1) of the Interpretation Act for the definition of Public Officer, and on Section 318 (1) of the 1999 Constitution, for the definition of public service of the Federation, to mean, the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:-
(a) ———
(b) ——
(c) Member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly;
(d) ——
(e) Staff of any statutory commission
11
established by an Act of the National Assembly;
Counsel submitted that the open-ended definition of public service of the Federation by the use of the word includes makes the Appellant (sic) fall within (c) and (e) above, or even outside them and still maintain its status as being in the public service of the Federation, on the authority of the Act creating it; he said that the list is not exhaustive.
He argued that there was no evidence to support the submission of the Appellant on the internal workings of the Respondent; that such evidence was not placed before the trial Court; he argued that the mere fact that government agencies belong to the sub-regional, Continental or international organisations does not rob them or their staff of the status of being in the public service of the Federation; that a statutory body, such as the Respondent, established by an Act of the National Assembly to execute public duties, cannot lose its statutory privileges, merely because it was foreign affiliates. Moreover, Counsel said, the provisions of the West African Examinations Council (Declaration of Pensionable offices) Order, made
12
pursuant to the WAEC Act, fortified his position that the Respondent was a public Officer. He said it is appropriate to conclude that the Respondent is a body or agency in the service of the federation, and relied on Section 8 of the WAEC Act.
Counsel said that the alleged earlier case of Mr. Fidelis Okrika Agboroh vs The West African Examiniations Council (WAEC), which Appellant referred to in his brief was not placed before the trial Court and was never made an issue in that Court. He urged us to discountenance any reference to the alleged judgment which emanated from it.
He further argued that though the Act specifically titled Public Officers Protection Act, its long title and main body properly define its scope and purpose, that is to say, it protects any person executing a statutory duty; he said that a combined reading of Section 318(4) of the Constitution and Section 18 of the Interpretation Act, shows that that person includes any body of persons, corporate or un-incorporate. He relied on the case of Alhaji Aliyu Ibrahim vs Judicial Service Committee Kaduna State and Ors (1998) 12 SC 20; Forestry Research Institute of Nigeria vs Gold (2007)5
13
SC 201.
He argued to show that the legal personality of the Respondent was not in doubt, and urged us to resolve the issue against the Appellant and to dismiss the appeal.
RESOLUTION OF ISSUE
I think the sole issue donated by the Respondent, which also agrees with the issue one by the Appellant, is more apt for the determination of this appeal.
That is; whether the Respondent is a Public officer entitled to the protection offered by Section 2(a) of the Public Officers Protection Act, cap. P41, Law of the Federation 2004?
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 Appellants Counsel had conceded, in paragraph 1.3.2 of his brief of argument as follows:
My lord, this case actually stated 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
14
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 (Underlining mine)
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 Appellants 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
15
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 at the Court below 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.
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. See Ossai vs FRN (2013) WRN 7, Onuegbu & Ors vs GOV. Imo State & Ors (2015) LPELR- 25968 (CA); Onowu vs Ogboko & Ors (2016)1 CAR 167 at 187; Shettima vs Goni (2012)18 NWLR (Pt. 1297) 413; (2011) LPERL- 417(SC).
The said issue 2 and the ground it arose from, are hereby struck out.
16
Was the trial judge right to hold that West Africa Examinations Council (WAEC) is a public officer, for the purpose of Public Officers Protection Act, and so dismissed Appellants case for being statute barred? That is the main and real issue for determination in this Appeal.
It is true, that Section 2(a) of the Public Officers Protection Act, provides coverage and protection to a public officer who discharges his official functions, lawfully, but is called to question thereon in the Court of law, or is otherwise indicated. That provision of the law comes to his rescue and protection, if the challenger did not take out the action within 3 months, next after the act or default complained of.
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
17
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.
Various judicial decisions have been made to explain the rationale and application of the above law, but it is always clear that the provisions did not intend to provide a cover or bunker for a public officer to hide to commit mischief or run there for refuge after committing the mischief. See Yabugbe vs COP (1992) NWLR (Pt.234) 152; Moyosore vs Gov. of Kwara State & Ors (2012)5 NWLR (Pt.1293) 242. See also the case of Fred Egbe vs Alhaji Abubakar Alhaji & 2 Ors (1990) LPELR- 1033 (Supreme Court), where it was held:
In my opinion, when a Defendant appears to be acting as a member of a public body under Statutory authority and pleads the Public Authorities Protection Act, the Plaintiff can defeat that claim by proving on sufficient evidence that Defendant was not really intending to act pursuance of the statutory authority, but was using his pretended authority for some improper motive,
18
such as spite, or a purpose entirely outside statutory justification.
When Defendants are found purporting to execute a statute, the burden of proof, in my opinion, is on the Plaintiffs to prove the existence of the dishonest motives above described, and the absence of any honest desire to execute the statute, such existence and absence should only be found on strong and cogent evidence.
In the Minister of Petroleum & Mineral Resources & Anor vs Expo Shipping Line Ltd (2010)12 NWLR (Pt.1208) 261 at 292, the Supreme Court, (Per Adekeye JSC) said:
It is not the law that Public Officers are immuned from suit under the Public Officer Protection Act, but that Suit against them must be instituted within a stated period, otherwise they become stale.
It has been interpreted that both natural and artificial persons (juristic personalities, be they human or legal institutions, incorporations/statutory bodies) are qualified to enjoy the protection of the Public Officers Protection Act. See Ibrahim vs JSC Kaduna State (1998)14 NWLR (Pt.584)1 at 38; see also Okonkwo vs INEC: CA/E/151/2008 (a recent decision of this Court,
19
delivered on 30/6/16), where my lord Ige JCA said:
The Public Officers Protection Act has been interpreted as offering protection or cover to both natural persons and juristic personalities like Federal Government parastatals institutions who are agents of Federal Government. It is a Limitation Law which is applicable at both Federal and State levels. (Page 47 thereof).
In the determination of who is a public officer resort is always had to the Interpretation Act, Cap 123 LFN, where Section 18(1) thereof interprets Public Officer to mean A member of the Public Service of the Federal within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public Service of the State.
And by Section 318(1) of the 1999 Constitution, as amended, Public Service of the Federation is defined as:
The service of the Federation in any capacity in respect of the Government of the Federation and includes service as:-
a) Clerk or staff of the National Assembly of each house of National Assembly;
b) Member of staff of the Supreme Court, the Court
20
of Appeal, the Federal High Court, the High Court of the Federal C.T. Abuja, Sharia Court of Appeal, the Customary Court of Appeal or other Courts established for Federation by this Constitution and by an Act of the National Assembly.
c) Member or staff of any Commission or authority established for the Federation by this Constitution or by an Act of the National Assembly
d) Staff of any area council
e) Staff of any statutory corporation established by an Act of the National Assembly;
f) Staff of any educational institution established or financed principally by the Government of the Federation;
g) Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and
h) Members of officers of the armed forces of the Federation or the Nigeria Police Force or other government Security agencies established by law.
(The Public service of a state is also interpreted in the said section in the same terms).
Of course, for the Respondent succeed to enjoy the Protection under Section 2(a) of the Public Officers Protection Act, Cap
21
P41 LFN, 2004, it has a duty to locate itself as “a public officer within the public service of the Federation, by identifying where it belongs in Section 318(1) (under the meaning of Public service of the Federation (or Public Service of a State) (a) to (h).
In the recent case of Ifeayichukwu Okonkwo vs CBN: CA/E/161/2008, delivered on 10/2/15, my lord, Emmanuel Agim JCA, in his contribution thereto, relying on the case of Ibrahim vs J.S.C. Kaduna State & Anor (1998)14 NWLR (Pt.548)1 at 38 said that the interpretation of the Section 2(a) of the Public Officers Protection Act, cannot be extended to:
Funds in the custody of an official who holds office that is not public and is not in the public service of the Federation or of the State. Example of such bodies include non public sector, Companies and other corporate bodies like commercial banks, non-governmental organization etc.
What that simply means, is that, there can be institutions, organizations, bodies and persons, who carry on business(es) or functions that touch on the interest of the general public and which are
22
legally incorporated or registered to carry on such functions in their private capacities and in the public interest, but the Officer/staff thereof cannot take advantage of the provisions of the Public Officers Protection Act, going by the legal definition of the word Public Officer by the Interpretation Act, and the meaning of Public Service of the Federation or of a State by Section 318(1) of the 1999 Constitution as amended. I think, to that set, belongs all the private Universities and other institutions/bodies like multi-national oil companies.
Was the National Industrial Court therefore right in holding that the Respondent, West African Examinations Council (WAEC) a Regional institution with international connections, which has both private and Public interests, and operates, under the Nigerian Law, qualified to enjoy the Protection of Section 2(a) of the Public Officers Protection Act?
That same question, whether WAEC can take advantage of the Public Officers Protection Act, came up for consideration in the case of Branch Controller WAEC vs Alade (2012) All FWLR (Pt.656) 526; (2011) LPELR- 8837 CA,
23
where my lord, Joseph S. Ikyegh JCA, in the lead judgment, made profound findings, about the law establishing WAEC and its operations and concluded, thus:
The West African Examinations Council It was created by the West African Examinations Council Act (CAP. W4) Laws of the Federation or Nigeria, 2004 (the WAEC Act). By Sections 14 (1) (a) and 24 of the WAEC Act, the sovereign nations of the Gambia, Ghana, Nigeria and Sierra Leone are member States of the 2nd appellant, showing the Federal Government of Nigeria does not own the 2nd Appellant as its organ. Its operation in Nigeria as an autonomous body is guaranteed or recognised by Section 1 (1) and (2) of the WAEC Act as follows:
(1) The institution known as the West African Examinations Council shall continue to be in existence in Nigeria and shall, in accordance with the provisions of this Act, continue to discharge its responsibility for holding such examinations in Nigeria as my be necessary in the public interest in the same manner as (pursuant to the laws respectively in force in the other territories of West Africa as defined in Section 24 of this Act) it may hold
24
examinations in such territories:
Provided that the President may, after consultation with the Council, issue directives to the Council as to what examinations are in the public interest in Nigeria and the Council shall in Nigeria comply with such directives.
(2) The Council shall be a body corporate with perpetual succession and a common seal. (My emphasis).
The proviso to Section 1 (1) of the WAEC Act (supra) appears to permit the president of Nigeria, after consultation with the 2nd Appellant, to issue directives to the 2nd Appellant on the type of examinations to conduct in Nigeria for the public in interest. I think the proviso gives the president of Nigeria limited powers confined only to his having prior discussion with the 2nd Appellant on the nature of examinations to hold in Nigeria in line with the non-justiciable Section 18 of the 1999 Constitution, as amended, without making the 2nd Appellant accountable to the Federal Government as its agency or organ. It is logical to conclude that by having prior consultation with the 2nd Appellant under Section 1 (1) of the WAEC Act, the 2nd Appellant cannot be said to be an appendage of
25
the Federal Government, as one is not required or expected to consult with another under him before taking a decision on something.
The function of the 2nd Appellant in Section 2 of the WAEC Act, its administrative and finance apparatus in Section 3 thereof, the composition and conditions of service of its Staff in Sections 4 and 5 thereof, ownership of its offices and premises under Section 7 thereof, the power to accept gifts etc under Section 9 thereof, the power to borrow money under Section 10 thereof and the power to maintain its fund under Section 11 thereof are exclusively vested in the 2nd Appellant, not in the control or supervision of the Federal Government.
Section 12 and 13 of the WAEC Act further enhance the autonomy of the 2nd appellant as follows:
12: Expenditure of the Council:-
(1) The council may from time to time apply the proceeds of the fund established pursuant to Section 11 of this Act:-
(a) to the cost of administration of Council;
(b) for reimbursing members of the Council or of any committee set up by the Council for such expenses as the Council thinks fit;
(c) to the payment of salaries,
26
fees or other remuneration or allowances and pensions, superannuation allowances and gratuities payable to the officers and servants of the Council, so however that no payment of any kind under this paragraph (except such as may be expressly authorized by the Council) shall be made in Nigeria to any person who is in receipt of emolument from the Federal Government or State:
(d) to the repayment of any money borrowed under Section 10 or of any interest payable thereon;
(e) for the maintenance of any property acquired by or vested in the Council; and
(f) For and in connection with all or any of the functions of the Council under this Act or any other written law.
(2) That Council may from time to time invest money standing to its credit in such manner and to such extent as the Council may think necessary or expedient,
(13): Accounts:-
(1) The Council shall keep proper accounts and other records relating thereto and shall cause to be prepared not later than 30 tune of each year a statement of accounts relating to the last preceding financial Year.
(2) The accounts of the Council shall be audited by auditors to be appointed by
27
the Council.
(3) As soon as the accounts of the Council have been audited, the council shall cause the statement of accounts together with the auditors, report thereon to be published in such manner as it thinks fit. (my emphasis).
Section 12 (1) (c) (supra) which excludes payment of salaries, fees or other remuneration or allowances and pensions, superannuation 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
28
it is clearly, in my opinion, demarcates the 2nd Appellant from the Public Service of the Federation. And to make the matter more explicit, the 2nd Appellants power over the application of the Pensions Act is, by Section 6 (3) of the WAEC Act (supra), reposed in the 2nd Appellant, not the Federal Government in these words:
For the purposes of the application of the Pensions Act in accordance with Sub-Section (2) of this Section, any power exercisable thereunder by a Minister or other authority of the Government of the Federation, other than the power to make regulations under Section 23 thereof is hereby vested in and shall be exercisable by the Council and not by any other person or authority. (my emphasis).
To further demonstrate the independence of the 2nd Appellant, its power of compulsory acquisition of land and payment of compensation therefore with the assistance of the Federal Government under Section 8 of the WAEC Act preserves the autonomy of the 2nd Appellant from the Federal Government in sub-section (3) thereof as follows:
the compensation, if any, payable for the acquisition of any land
29
under this section or payable under the land Use act for the revocation of any rights relating is the land, as the case may be, shall in the first instance he paid by the Federal Government, but the Council shall refund to that Government any compensation so paid and all incidental expenses incurred by that Government.
(my emphasis)
Also, to prove the international existence of the 2nd Appellant as a West African body comprising the Gambia, Ghana, Nigeria and Sierra-Leone, in the West Africa sub-region, Paragraph 1 (1) of the Schedule to the WAEC Act stipulates the international composition of the governing body thus:
The Council shall consist of the following members, that is-
(a) Two persons appointed by the Government of the Gambia;
(b) Four persons appointed by the Government of Ghana;
(c) Four persons appointed by the Government of the Federation of Nigeria;
(d) Three persons appointed by the Government of Sierra Leone;
(e) One person appointed by the Senate or equivalent academic body of each university or university college in the countries served by the Council;
(f) Two persons appointed by the
30
Chancellors of the Universities of Cambridge and London, each chancellor nominating one person;
(g) Not more than seventeen persons to be elected by the National committees in accordance with the provisions of this Act, the exact number from each National committee to be determined by the Council; provided that not more than nine members of the Council shall be appointed by any one National Committee.
The above statutory provisions have to be read in harmony following the canon of statutory interpretation enjoining community construction of related sections of an enactment for the purpose of discovering and implementing the intention of the legislature or draftsman from the clear words used in the enactment. See The Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors v. Medical and Health Workers Union Of Nigeria & Ors(2009) 1 S.C.N.J. 348, Inakoju & Ors v. Adeleke (2007) 1 S.C.N.J. 1, Amaechi v. Independent National Electoral Commission & Ors. (2008) 1 S.C.N.J. 1.
Taking a cue from the above interlocking Statutory Provisions establishing the nature, component and structure of the 2nd Appellant, it appears certain, in my modest view,
31
that the Federal Government merely provided the legal frame-work in the WAEC ACT to give the 2nd Appellant Statutory existence as an independent legal entity to facilitate the execution of its educational objectives of conducting public examinations in Nigeria under the watch, not control, of the Federal Government; as distinct from its ownership by the Federal Government as its ministry, department, agency or arm/organ.
The 2nd Appellant and the 1st Appellant who exists under the Appellant are, therefore, not an agency or part of Federal Government Structure/body; nor do the Appellants have any connection with the affairs and/or the running of the Federal Government, as rightly submitted by the Respondents who placed reliance on the analogous cases of F.M.B.N. V. Olloh (supra) and F.M.B.N. V. Lagos State Government (supra) and Cotecna Ltd V. Church Gate (Nig) and Anor. (2011) 18 WRN 1 @ 23. The objection to the jurisdiction of the Court below over the Appellants under Section 251 (1) of the 1999 Constitution, as amended, was accordingly not well taken and was rightly overruled or dismissed by the Court below, in my modest view.
I was part of
32
that decision in case cited above (Branch Controller WAEC vs. Alade supra) and I agreed completely with the lead judgment.
The above decision, which was reached on 18/11/2011, to the best of my knowledge, remains extant, as I am not aware of any decision of the apex Court overturning it, or to the contrary. I therefore have no reason to depart from it.
It is therefore obvious, from the above, that the learned trial Judge was in grave error, to have arrogated the right enjoyed by Public Officers in the Public service of the Federation or of the states in Nigeria, vis a vis, the Public Officers Protection Act, to the Respondent, WAEC, and to rely on it to dismiss Appellants suit for want of jurisdiction, alleging that the suit was statute barred.
This appeal, therefore, succeeds as I resolve the Issue for the Appellant and allow the appeal. I hereby set aside the decision of the Lower Court, dated 15/1/14, and remit the case back for hearing on the merit, by another Judge of the National Industrial Court, other than Hon. Justice O.Y. Anuwe.
The Respondent shall pay the cost of this Appeal, assessed at Fifty Thousand Naira (50,000.00)
33
only.
Other Citations: (2016)LCN/8943(CA)
