Mr. Abdullahio. Enesi & Ors V. Federal Airports Authority Of Nigeria (Faan) (2009)
LawGlobal-Hub Lead Judgment Report
RAPHAEL CHIKWE AGBO, J.C.A.
The appellants were in 1995 servants of the respondent. In 1995, the respondent terminated the employment of the appellants along with several others claiming to have received the approval so to do from the Head of State and Commander-in-Chief of the Armed Forces and founding their authority so to do on S.1(1) of the Public Officers (Special Provisions) Act 1983 (Decree 17). All attempts to resolve the matter administratively failed and in 2003 each of the appellants filed a suit at the Federal High Court challenging the termination of their appointments. The three suits were consolidated. Upon service on the respondent of the appellants’ writs of summons and Statement of Claim, the respondent challenged the competence of the suits on the ground that they were statute barred contrary to S. 26 of the Federal Airport Authority of Nigeria Act NO.9 of 1996 which provides that any action against the respondent not brought within one year of the accrual of the cause of action was statute barred. The preliminary objection was argued at the court below and the court, in a considered ruling on 6th October 2004, declined jurisdiction and struck out the suit. Not satisfied with this judgment, the appellants have filed this appeal.
The only ground of appeal in the amended notice of appeal and its particulars are short and bear reproduction:
“GROUND 1
The learned trial judge erred in law in holding that Section 26(1) of the FAAN Act, NO.9 of 1996 applies to this case so as to rob it of jurisdiction to adjudicate over it.
PARTICULARS
The various requirements listed in Section 26(1) of the FAAN Act for the section to apply are not present in this case.
Briefs of argument were exchanged by the parties. The appellants filed their brief of argument on 4-/7/06 and their reply brief on 9/10/07. The respondent filed its brief of argument on 25-9-07. The appellants distilled only one issue for determination to wit: – “Whether the provision of S. 26 of FAAN Act NO.9 of 1999 as amended applied to this case?” The respondent adopted the issue as articulated by the appellants.
Before going into the arguments of the parties and for the full understanding of the issue, it is necessary to reproduce the letter of termination of appointment, the bone of contention in this disputation. This letter was written by the respondent to each of the appellants.
“LETTER OF TERMINATION
I am directed to inform you that the Head of State, Commander-In-Chief of the Armed Forces has approved the Termination of your appointment from the services of the Federal Airports Authority of Nigeria (FAAN) with effect from 1st December, 1996. This is in pursuance to Section 1(1) 2 of the Public Officers (Special Provision) Act – Decree No. 17, 1984.
I am also to inform you that your terminal benefits shall be paid to you in accordance with the Authority’s Condition of Service.
You are to hand over all Government property in your possession to your Head of Department accordingly.
E.I. Osibo (Mrs.)
For: Director of Admin. & Finance.”
It is also necessary to reproduce the contentious S. 26(1) of the Federal Airports Authority of Nigeria Act 1996
“S. 26(1) Provides:
Notwithstanding anything in any other enactment. No suit against the Authority, a member or any employee of the Authority for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or, default in executing such enactment or law, duties or authority shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.” In arguing the appeal, the appellants first argued that S.26(1) of the FAAN Act 1996 was an ouster clause and that in interpreting such provisions, the court should guard its jurisdiction jealously and interpret the provision strictly against the party seeking to take advantage of it. They relied on A.G. Bendel State vs. Agbofodoh (1999) 2 NWLR (pt 592) 476, Fasogbon vs. Layade (1999) 10 NWLR (pt 628) 542, Nwosu vs. I.S.E.S.A. & 4 Ors (1990) 2 NWLR (pt 135) 688.
They then proceeded to argue that for S.26 (1) of the FAAN 1996 to avail the respondent, the act complained of must
(a) Be done by the authority
(b) Be in pursuance of any enactment or law or any public duties or authority
(c) Be in respect of any alleged neglect or default in executing such enactment or law.
They argued that the act complained of i.e. the termination of their employment was an act of the head of State and not the authority. The appellants’ case is that from the terms of their contract, it was wrong for the respondent to terminate their contracts on the instruction of the head of state. The respondent in reply said the limitation in S.26 (1) of FAAN Act was a limitation against the act of the authority, its staff and members done pursuant to or in execution of any enactment or law or public duty and that in the instant case the appropriate authority acted on the recommendation of the respondent.
The appellants set out the position of the law correctly when they argued that S.26 (1) of the FAAN Act which is a limitation provision is an ouster clause in that it restricts the citizen’s right of access to court. It therefore should be construed narrowly and strictly against anyone claiming its benefit. That however does not mean that the court should arbitrarily ascribe a wrong meaning to the clear language of the statute. All what it means is that the court should give a fair and natural interpretation to the statutory language as applied to the facts of the particular case See Nwosu vs. I.S.E.SA. & 4 Ors supra p.723.
To situate this appeal one must first of all appreciate the provisions of the Public Officers (Special Provisions) Act 1983 otherwise known as Decree No. 17 1983.
S. 3(2), 4(1) & (2) are relevant and are reproduced hereunder:
“S. 1(1) notwithstanding anything to the contrary in any law, the appropriate authority if satisfied that-
(a) It is necessary to do so in order to facilitate improvements in the organization of the department or service to which a public officer belongs; or
(b) by reason of age or ill health or due to any other cause a public officer has been inefficient in the performance of his duties; or
(c) The public officer has been engaged in corrupt practices or has in any way corruptly enriched himself or any other person;
(d) The general conduct of a public officer in relation to the performance of his duties has been such that his further or continued employment in the relevant service would not be in the public interest,
The appropriate authority may at any time after 31st December, 1983
S.3.(2) The provisions of any enactment, law or instrument (including the Constitution of the Federal Republic of Nigeria) relating to the matters to which this Act applies or relating the appointment, benefits, dismissal and disciplinary control of a public officer shall have effect subject to this Act.
S.4 (1) in this Act, “public officer” means any person who holds or has held any office on or after 31st December, 1983 in-
(a) The public service of the Federation or of a State within the meaning assigned thereto by section 277(1) of the Constitution of the Federal Republic of Nigeria;
(b) The service of a body whether corporate or unincorporated established under a Federal or State law;
(c) A company in which any of the Governments in the Federation has a controlling interest.
(2) In the operation of this Act, the appropriate authority-
(a) in respect of any office which was held for the purposes of any State, shall be the Military Governor of that State or any person authorized by him; and
(b) In any other case, shall be the President or any person authorized by him or the Armed Forces Ruling Council.”
The combined effect of these provisions is that by operation of law, the State has intruded into all contracts of service in the public service and vested on the appropriate authority the competence to determine such contract. The appropriate authority in so acting becomes clothed in the cloak of the contracting ministry, department or government agency. The ministry, department or agency cannot avoid or deny the act of the appropriate authority nor divest from itself the consequences of the said act. The distinction the appellants have tried to make in this case cannot avail them. The letters of termination show that the respondent did in fact terminate the appointment of the appellants AFTER obtaining the approval of the head of State. The respondent therefore pursuant to S. 4(2) (b) of the Public Officers (Special Provisions) Act was the appropriate authority and acted properly to bring it within the ambit of S. 26(1) of the FAAN Act. There is no merit in this appeal and it is hereby dismissed.
There shall be no order as to costs.
Other Citations: (2009)LCN/3493(CA)
