Adio Suleiman V. Kwara State Polytechnic (2006)
LawGlobal-Hub Lead Judgment Report
MUHAMMED SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the Ruling of Hon. Justice Elelu-Habeeb J. of the State High Court, Ilorin, delivered on 16/05/2005 upholding the preliminary objection filed by the Defendant on the ground of the suit being statute barred. The Plaintiff now Appellant filed an action against the Defendant now Respondent.
A brief review of the facts that gave rise to the litigation will assist in further elucidating the appeal in this matter. The Appellant herein was in the employment of the Respondent herein. He was employed in the Department of Banking and Finance at the Kwara State Polytechnic, Ilorin, as an Editor of one of their magazines.
After some wrangling not unconnected with the cultists clash and after some investigation by the polytechnic authority he was expelled from the college on 5/8/2002 and the expulsion was published on 20th September, 2002.
On 14th day of September, 2004, the Plaintiff challenged his expulsion by filing a writ of summons and statement of claim as follows:
“(a) A declaration that the Plaintiffs expulsion by the Defendant is unlawful, and unconstitutional and
(b) An order of this honourable court directing the defendant (Kwara State polytechnic, Ilorin) to release the Plaintiff’s Certificate (HND) Certificate in Banking and finance.
(c) N100,000.00 (One Hundred Thousand Naira Only) special damages against the defendant.”
The Defendant now Respondent denied the claim, entered conditional appearance and filed a statement of defence and raised a preliminary objection, alleging that the action was statute-barred, as same was not instituted within the statutory period of three months after the accrual of the cause of action. In a nutshell the Defendant contended that the trial court lacks jurisdiction to exercise power on the Plaintiffs’ claims which were statute barred and urged that court to dismiss same as a flagrant abuse of courts processes.
The Learned trial Judge set the preliminary objection for hearing. After all rudimentary objections and counter objections the Defendant referred to paragraph 15 of the Statement of Defence which reads thus:
The defendant will at the trial of this action raised by way of preliminary objection that the plaintiff has no cause of action as his claims becomes non-justiciable by reasons of public officer protection Act.
Particulars of objection:
(a) The defendant is a public authority/person
(b) was expelled from the defendants institution on 5th August 2002; and he instituted this action on 14th September, 2004 a period of over 2 years.
(c) The honourable court has no jurisdiction to exercise judicial power on the plaintiff’s claims which are statute-barred.
Whereof the defendant prays the honourable court to dismiss the plaintiff’s claim as totaling (sic) lacking in merit; frivolous, after thought, and a flagrant abused (sic) of court’s processes.”
The Public Officers (Protection Law of Kwara State S.2 thereof was also referred to. It says:
“2. Where any action or prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution of any law or of any public duty of authority, or in respect of any alleged neglect default, in the execution of any such law, duty or authority, the following provisions shall have effect:-
(a) the action, prosecution 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 incase of damage or injury, within three month next after ceasing thereof”
Learned trial Judge relying on the Supreme Court cases of Egbe v. Adefarasin (1987) Vol.18 NSCCI, and John Ekeogu . Elizabeth Aliri (1991) 3 SCNJ P4 on page 8 of the Record of Proceedings held as follows:
“It therefore follows that based on the provisions of Section 2 of Public officers (protection) Law-Cap 135 Laws of Kwara State 1994; coupled with the decision of the Supreme Court cited supra, the action of the plaintiff herein is un-maintainable against the defendant for being statute – barred. The suit was instituted more than a period of 2 years after the Occurrence of the act contained of ………….this preliminary Objection is therefore meritorious and is hereby upheld. The suit is accordingly dismissed for being statute-barred.”
Apparently not satisfied with the above ruling the Plaintiff appealed against the same and filed a notice or appeal containing some grounds of appeal. With the consent of this court the Appellant filed an amended Notice of Appeal.
In compliance with the rules of this Court Learned Counsel for the parties filed their respective briefs of argument. On the hearing date, 1/612006 both Counsel adopted their briefs without any expatiation on behalf of their respective clients. The Appellant out of three grounds of appeal distilled two issues thus:
“1. Whether the Respondent is a creation of statute and a juristic person that can sue and be sued – Ground 1
- Whether the respondent is protected by section 2 of public officers protection law cap 135, Laws of Kwara State of Nigeria 1994 – Ground 1.”
The Respondent in turn formulated two issues for our consideration of the appeal as follows:
(a) Whether the appeal of the Appellant is properly brought before this Honourable Court so as to warrant any consideration.
(b) Whether the Learned trial Judge rightly held that the Respondent, being a juristic person is covered by Section 2 of the Public Officers Protection Law Cap 135 of Kwara State 1994.”
The grouse of the Appellant under the 1st issue is that the relevant law does not protect the Defendant (Kwara State Polytechnic) since it is a public institution and a creation of statute that can sue and be sued having a common seal and perpetual succession. According to the Learned Counsel the Defendant is “Kwara State Polytechnic” as provided by Section 3(1) and (2) Polytechnic Edict Cap 120 Laws of Kwara State 1994.
Learned Counsel submitted finally on this issue that the decision of the lower court to the effect that Section 2 of the Public Officers Protection Law Cap 135, Laws of Kwara State 1994 applied in this matter is wrong and had occasioned a miscarriage of justice and this court should order a retrial. He relied on the Supreme Courts case of Nnorodim v. Ezealin (2001) SCNJ 1 at Page 2 Per Iguh J.C.S at Page 6.
On issue 2 Learned Counsel for the Appellant maintained the position that the Kwara State Polytechnic (an institution) cannot enjoy the benefit of provision of section 2, of public officers protection law because the Defendant is not a public officer and only the staff of the institution can hide under the cover of the law as public officers.
He referred to 5th schedule Part II Constitution of Federal Republic of Nigeria, 1999. He also contended that the title of Public Officers Protection Law Cap 135 Laws of Kwara State 1994 refers to natural person that is, Public Officer in their capacity as individuals discharging public duties and not institution, office, person (Artificial) or Public Authority as the Defendant. He relied on:
- Refus Alli Momoh v. Mr. Afolabi Okewale & Anor (.1977) 6 SC 81/88-89 LINE 30-34 and P.89 line 1-5.
- Felix Onyejekwe v. Tile Nigeria policeCouncil & 1 Ors. (1996) NWLR (Part 463) at 712-713.
He stressed that what the law envisages is Public Officers as individuals executing public duties – 8.3(1) of interpretation Law Cap 78 Laws of Kwara State was referred. Learned Counsel then attacked the stance taken by Learned trial Judge to the effect that …. the Defendant (Kwara State polytechnic) is a Public Officer who can reap the benefit of Public Officers Protection Law Cap 135 Laws of Kwara State 1994.
Learned Counsel, Akanbi Esq, made a very strong submissions that for the provisions of section 2 of the Public Protection Law Cap 135 Laws of Kwara State 1994 to apply two conditions must be met:
(a) That it must be established that the person against whom an action is brought is a public officer within the meaning of the Law.
(b) That the act done by the person in respect of which the action is brought must be an act done in pursuance or execution of law or public duty.
He then urged us to discountenance the argument by counsel that the Defendant, Kwara State Polytechnic, now Respondent, is a public officer with all the authorities cited.
Learned Counsel referred to Section 2(2) and (3) of the Interpretation Law, Cap 52, Law of Northern Nigeria 1963 where
“Persons” are interpreted to include any company or association corporate or incorporated.” He further argued that S.18 (1) of Interpretation Act Cap. 192 Laws of the Federation of Nigeria (1990) defines “Persons” as:
“Persons includes anybody of (sic) persons corporate or un-incorporate.”
He finally submitted that the Respondent, being a legal person/body corporate or a juristic person who can sue and be sued is protected by S.2 of the Public Officers Protection Law (Cap 135) Laws of Kwara State 1994 as held by the Supreme Court in Alhaji Aliyu Ibrahim v. Judicial Service Commission Kaduna State (1998) 14 NWLR (Part 584) 1 at 37. He then urged this court to hold in favour of the Respondent that the Respondent is covered by S. 2 of the Public Officer Protection Law of Kwara State.
I have carefully considered the issues and all the submissions of the Learned Counsel. I must admit that at the initial stage and on a cursory look at the Public Officers Protection Law of Kwara State 1994 Section 2 thereof one should have thought that Public Officers is referring to a human person and therefore the law was promulgated in order to protect an individual human being rather than public office or corporation like Lagos State City Council in the case Momoh v. Okewale & Anor (1977) N.S.C.C. 365 where the Supreme Court satisfied and held that “the Learned trial judge was clearly wrong in law in holding that the 1st Defendant was a public officer, and therefore protected by the provisions of section 2 of the public Officers Protection Act Cap 168. We accordingly reverse that decision.”
The Supreme Court then stated that “having that conclusion, we are also satisfied that the Plaintiff ought to have succeeded. “Per Udoma, JSC. Also in Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1 at where:
Hon. Justice Adefarasin was covered by the limitation law of Lagos State S.10 thereof. The respondent in that case before the supreme Court was not a company, corporation or still hid under the cover of section 10 of the Limitation Law Cap 70 to say that the action of Egbe Esq was statute-barred. The alleged slander published by the Defendant to Messrs Aderemi Odofin and Allison Ayida was dismissed by the Supreme Court. After the cause of action has accrued the plaintiff in the lower court waited for more than 3 years i.e. until the 3 years allowed by the law has expired. Actually, the trial court held that the action must fail as it ought not to have been instituted since the action was statute barred by section 10 of the limitation law of Lagos State Cap 70 of 1973. The Plaintiff, having lost, after the split judgment of the Court of Appeal, (He lost in two Courts) appealed to the supreme court. after considering various issues involved the supreme court Per Aniagolu JSC held that the action was clearly caught by section 10 of the Limitation Law cap. 70 Laws Of Lagos State 1973 and, therefore, was statute barred. The Appeal must therefore be dismissed, and hereby dismissed.
In this matter decided supra, no company, Polytechnic, University or any corporation was the Defendant. The decision of the Supreme Court accepted that the limitation law helps and protects an individual, like Hon. Justice Adefarasin.
Now when I read the recent Supreme Court decision my mind is certain that person may include body corporate or a juristic person who can sue and be sued. Therefore the Limitation Law can well be extended to the Defendant. In the Supreme Courts case of Ibrahim – v. J. S. C. Kaduna State (1998) 14 NWLR (Part 584) 1 at 37 where it was held thus:
“….the words public officer or any person in public Office as stipulated in Section 2 of the Public Officer (Protection) Law 1963, not only refer to natural persons sued in their personal names, but that they extend to public bodies, artificial persons, institutions or persons sued by official names or titles” Per Iguh J. S. C.
This is a welcome liberal and wide interpretation of the statute. I am completely in agreement with the above decisions, in fact I am bound by it.
It was stated elsewhere that “the word “person” when used in legal parlance such as in a legislation or statute, connotes both a “natural person.’ that is, a human being and an “artificial person” such as a corporation sole or public bodies corporate or unincorporated, Sec Abdubakar v. Governor, Gombe State (2002) 17 NWLR (part 797) 533/561 where this Court Per Obadina, J. C. A. relying on Ibrahim v.. J. S. C held at P. 561 of the above report.
I also accept the case cited by the Respondents Counsel Akorede Esq, namely, Central Bank of Nigeria v. Mr. Olusupo Adedeji & Ors (2005) 26 WRN 38/46 After the cases of Ibrahim v. J.S.C (1998) 14 NWLR (pt.584) 1 and Ofoboche v. Ogoja L.G. (2001) 16 NWLR (pt.739) 458, I agree that the position of the law is that the provision of the Public Officers Protection act applies mutatis mutandi to natural persons, ratifications, like corporation sole or limited liability company or universities and polytechnics.
To avoid un-necessary repetition, which they say does not improve argument, I will hold that both parties agree (statement of claim and statement of defence) that the action of the Appellant was filed far beyond statutory period of three months. The cause of action cannot be valid if it was not filed within 3 months i.e that cause of action can not be maintained.
The most nagging question is whether or not the Respondent herein (Kwara State polytechnic) can be covered by section 2 of the Public Official Protection Law 1994.
After considering the submissions of both Learned Counsel in this appeal, I hold that the Respondent, Kwara State Polytechnic, is protected by the provisions of the said Kwara State Public Officers Protection Law as Public Officer. That being the case, the Plaintiff action which was instituted over two years after the cause of action has accrued could not disclose any reasonable cause of action at Law. The suit I Hold is stale and statute-barred because it was commenced more than 3 months after the cause of action accrued.
The lower court was right in declining jurisdiction to hear the matter. The position taken by His Lorshship of the lower court is faultless and un-assailable.
My Lords, once this Court agrees that the action is statute barred no further issue in the appeal need be further considered. I will therefore jettison the contention of the Respondents Counsel that issues not covered by any ground of appeal. It is not valid. I am not prepared to consider such argument at the moment and at the stage of this appeal.
In the final result and for all the reasons I stated this appeal is lacking in merits and same is hereby dismissed. The Judgment of ELELU – HABEEB J. delivered on 6/5/2005 is affirmed. The lower court lacks jurisdiction to entertain the Appellants suit and same is hereby dismissed. Had the Plaintiff brought the suit within three months allowed by the statute then the lower court could have opened the case for hearing and at the end of the case the Plaintiff may win or loose the action.
In the exercise of my discretion I refrain from awarding any costs in favour of the Respondent.
Other Citations: (2006)LCN/2052(CA)
