Agbefawo Aremu Tajudeen V. Customs, Immigration & Prisons Service Board (2009)

LawGlobal-Hub Lead Judgment Report

ADAMU JAURO, J.C.A.

The plaintiff was employed by the defendant, namely Customs, Immigration and Prisons Service Board, by a letter dated 17th July, 1990 to work under the Prisons Services Department, as an Assistant Superintendent of Prisons. By another letter dated 3rd June, 1996 and served on the plaintiff that same day, he was dismissed from service, on grounds of absenteeism and misconduct. Dissatisfied with the state of affairs of having been thrown out of employment into the vagaries of labour market, the plaintiff instituted an action in the Federal High Court Lagos. The action was commenced by Writ of Summons and Statement of Claim dated and filed on 15th March, 2002 seeking for the following reliefs:

“(a). A DECLARATION that the abrupt termination of the applicant’s employment by the respondents without just cause and without following the due process of law in unconstitutional, illegal, null and void, as it breaches the applicant’s Fundamental rights to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

(b). AN ORDER re-instating the Applicant to his rank with all his full rights and entitlements as if he had not been dismissed from the services of the Nigeria Prisons Service.”

Having ignited this claim by serving the Writ of Summons on the defendant, a preliminary objection challenging the action was filed. The core of the objection is the statutory bar in Section 2(a) of the Public Officers (Protection) Act Cap 379, Laws of the Federation of Nigeria, 1990 that the action shall not be brought against the defendant after three months from the accrual date of the cause of action. Thus implying that the action was statute barred. The preliminary objection was argued and in a considered ruling, the trial court per M.L. Shuaibu, J, found in favour of the defendant to the effect that the plaintiffs case fell within the amplitude and latitude of Section 2(a) of the Public Officers (Protection) Act and not having been instituted within the limitation period of three months from the accrual date of the cause of action, it is statute barred. The action was accordingly dismissed.

Aggrieved by the decision of the court below, the plaintiff appealed against it to this court, pursuant to a notice of appeal dated and filed on 16th February, 2005. The original notice of appeal was amended by order of court made on 5th June, 2008. The amended notice of appeal raised 3 grounds of appeal against the decision of the lower court. In this court, the plaintiff will be referred to as the appellant and the defendant the respondent, respectively. The parties have filed and exchanged their briefs of argument, in compliance with the rules of this court.

The learned counsel for the appellant adopted the appellants brief of argument dated 27th June, 2008 and filed on 3rd July, 2008 and urged this court to allow the appeal. The respondent’s counsel was not in court, though served hearing notice on 9th March, 2009. Hence the respondent’s brief of argument filed on 12th August 2008 was deemed adopted and argued in line with Order 17 Rule 9(4) of the Court of Appeal Rules 2007. The respondent on the other, hand, urged this court to dismiss the appeal. The appellant in his brief of argument distilled 2 issues for determination from the three grounds of appeal, as follows:-

“(1). Whether the appellant’s claim as constituted in the court below, was for the enforcement of fundamental right (Ground one)

(2). Whether Section 2(A) of the Public Officers (Protection) Act, applies to the appellant’s (Plaintiff s) claim, so as to make it incompetent having been commenced after 3 months from cause of action arose (sic) (Grounds 2 and 3).”

The respondent on its part, identified a lone issue as apt and germane for determination in this appeal, which is almost identical to the appellant’s issue 2, namely:-

“Whether the appellant’s case was statute barred in accordance with the applicable law.”

For the purposes of resolving this appeal, I will adopt the two issues as couched and formulated by the appellant’s counsel, as they are more related and cover all the three grounds of appeal.

On issue one, learned counsel for the appellant stated that a plaintiff, cannot seek to redress any wrong by way of fundamental rights enforcement procedure, unless such a wrong amounts to a breach of fundamental human right. On this contention, learned counsel relied on the cases of Tukur v Govt of Taraba State (1997) 6 NWLR (Pt. 510) 549 and Egbonu v BRTC (1997) 12 NWLR (Pt. 531) 29. Learned counsel however argued, that the appellant did not approach the court below to enforce his fundamental rights, but rather complained of wrongful dismissal by way of writ of summons. In concluding, learned counsel submitted that the appellants claim was not constituted as one for the enforcement of fundamental rights as was wrongfully held by the learned trial judge. Learned counsel therefore urged this court to resolve this issue in favour of the appellant.

The respondent has not proferred any argument by way of response to this issue. The relevant aspect of the ruling under attack in this issue, is contained on page 35 of the printed record, where the learned trial judge stated thus:-

“In effect, whereas in the instant case, the alleged breach of Fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature; it is incompetent to constitute the claim as one for the enforcement of a fundamental right. See also FRN V IFEGWU (supra) and also TUKUR V GOVT. OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549. The Plaintiffs main claim is for wrongful dismissal and that the question of enforcement of his fundamental right to fair hearing is an ancillary claim and thus the provision of Section 2(a) of the Public Officers (Protection) Act can not in my view be restricted” (underlining supplied).

The above paragraph is very clear and unambiguous. It cannot by any stretch of imagination be construed as saying that the plaintiff s action as constituted is for the enforcement of fundamental right. The learned trial judge stated in clear and unequivocal terms, that the claim of the appellant was for wrongful dismissal and not enforcement of fundamental right to fair hearing, which is only ancillary to the claim. I cannot fathom out the complaint of the appellant in relation to this issue, as he merely repeated in his arguments what the trial court stated. It is therefore not surprising that the respondent, never deemed it necessary to make any submission on this issue by way of response. Based on the foregoing, I find the arguments canvassed on this issue very strange as they do not arise or constitute a complaint against the ruling of the lower court, hence incompetent. See Owie v Ighiwi (2005) 5 NWLR (Pt.917) 184 and Lambert v Nigerian Navy (2006) 7 NWLR (Pt.980) 514. Consequently, issue one hereby fails.

Issue number two is distilled from grounds 2 and 3, of the appellant’s amended notice of appeal. On issue 2, appellant argued that Section 2(a) of the Public Officers (Protection) Act, does not apply to his claim at the lower court. In buttressing this submission, learned counsel re-stated the claims of the appellant in the lower court and contended that the action is for wrongful dismissal based on contract of service. Learned counsel argued that Section 2(a) of the Public Officers (Protection) Act, does not apply to cases relating to contracts. Learned counsel further argued that a contract of employment is like any other contract and is also governed by ordinary rules of contract. Based on the foregoing submissions, learned counsel politely disagreed with the distinction made by the trial court between contract of service and other forms of contract. Hence learned counsel submitted that the law is specific to the effect that Section 2(a) of the Public Officers (Protection) Act, does not apply to cases relating to contract of service. In support of this contention, learned counsel relied on the following cases, namely: Baba v NCATC [1991) 5 NWLR (Pt. 192) 388, Amao v CSC (1992) 7 NWLR (Pt. 252) 214 Alapiki v. Gov. of Rivers State (1991)8 NWLR (Pt. 211) 575, CBN v. Adedeji (2004) 13 NWLR (Pt. 890) 226 and Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1.

In concluding, learned counsel submitted that the trial judge ought to have dismissed the preliminary objection, because Section 2(a) of the Public Officers (Protection), Act, does not apply to cases founded on contract. Consequently, learned counsel urged this court to resolve this issue in favour of the appellant and allow the appeal.

In response to this issue, learned counsel for the respondent submitted that the kernel of this appeal hinges on the jurisdiction of the Federal High Court, to entertain an action that is statute barred. By way of introduction learned counsel stressed the importance of jurisdiction as being fundamental in nature, and submitted that any trial conducted without jurisdiction is a nullity. In support of this submission learned counsel relied on the following cases: Moore v Taye (1930) 2 WACA 43 at 45, Adejumo v Johnson (1972) 1 All NLR 159 at 166 – 168 and Utih & Ors v Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 206 where Bello CJN (of blessed memory) while stressing the importance of jurisdiction stated thus:-

“Jurisdiction is the blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it will be an abortive exercise”

Learned counsel submitted that the intendment of Section 2(a) of the Public Officers (Protection) Act, is to protect public officers against any action done in the course of discharging their public duty. Learned counsel further argued that the respondent acted pursuant to its statutory responsibilities under Section 4(2)(b) of the Customs, Immigrations and Prisons Services Board Act Cap. 89 LFN 1990, hence enjoys protection under Section 2(a) of the Public Officers (Protection) Act. Learned counsel further submitted that the incorrect assertion of the appellant to the effect that Public Officers (Protection) Act does not apply to employment with statutory favour, has been debunked by the case of Ibrahim v JSC (1998) 14 NWLR (Pt. 584)1. Learned counsel therefore argued that the cases of Baba v NCATC .(supra), Amao v CSC (supra) and CBN v Adedeji (supra) are inapplicable to this case, as the facts are distinguishable.

In the course of submission, learned counsel defined cause of action to mean set of facts and circumstances giving rise to an enforceable claim. As to the definition of cause of action and the effect of an action filed outside the limitation period, thereby making it statute barred, learned counsel referred to the following cases. Eboigbe v NNPC (1994) 5 NWLR (Pt. 347) 649, Ibrahim v Osim (1987) 4 NWLR (Pt. 67) 365 and Patkum Industries Ltd v Niger Shoes Ltd (1985) 5 NWLR (Pt. 93) 134. On the method of calculating whether an action is statute barred, learned counsel referred to the cases of Yare v Nunku (1995) 5 NWLR (Pt. 394) 129 at 148 and Aina v Jinadu (1992) 4 NWLR (Pt. 233) 91.

In concluding, learned counsel contended that the cause of action accrued on 3rd June, 1996 but the suit was not instituted until 15th March, 2002. The appellant’s right of action according to counsel, died upon his failure to institute the action within 3 months from the accrual date of the cause of action. Learned counsel submitted that the action having been filed outside the 3 months limitation period provided by Section 2(a) of the Public Officers (Protection) Act, it is statute barred. Consequently learned counsel urged this court to resolve this issue in favour of the respondent and dismiss the appeal.

Section 2(a) of the Public Officers (Protection) Act, Cap 379 Laws of the Federation of Nigeria, 1990 provides thus:

“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or 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 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 damages or injury within three months next after ceasing there of……………… “.

The case at hand challenged the termination of the appellant’s employment by the respondent. It is not in dispute that this action was instituted over five years after the accrual of the cause of action. The question now to be determined is whether the above cited provision is applicable to cases arising from contracts of employment.

The Supreme Court lucidly stated the position of the law in the case of Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 628. In Bakare v. NRC (supra), the Supreme Court while interpreting the provisions of Section 83(1) of the Nigerian Railway Act Cap. 323 LFN 1990 followed its earlier decision in N.B.C. v. Bankole (1972) NSCC 220, that interpreted Section 61(1) of the Nigerian Broadcasting Corporation Act which is identical to Section 2(a) of the Public Officers Act. In the aforementioned case, the apex court held that where a case refers to a specific contract entered into by parties with distinct terms and conditions, the statutory privilege under Public Officers (Protection) Act will not avail a public officer where there is breach. However the protection will avail a public officer where the act complained of or the purported breach is in the performance or execution of a public duty. Hence this explains the decision in NPA v. Construzioni SPA (supra), where it was held, that the provision of Section 97 of the Ports Act which is identical to Section 2 of the Public Officers (Protection) Act is not applicable to contracts. This decision was also followed in FGN v. Zebra Energy (supra) and Osun State Government v. Dalami (2007) 9 NWLR (Pt. 1038) 60.

In order to drive back home the point, the facts of the last three cases cited will be reviewed briefly. The case of NPA v. Construzioni (supra) related to a contract entered into between the parties for the construction of the second Apapa wharf extension. The case of FGN v. Zebra Energy (supra) was in respect of a contract for the building and allocation of offshore oil block. While the case of Osun State Govt v. Dalami (supra), was in respect of a lease agreement for the management of Cocoa Products Industry in Ede, Osun State. From the facts of the aforementioned cases, it can be seen that they related to specific contracts, involving parties with specific terms and conditions, wherein any breach will amount to a failure to comply with the terms of the contract. Hence, Public Officers (Protection) Act cannot apply as it will negate the general principle upon which the law of contract is based.

Now turning back to the case at hand, what then is the position of the law as to contracts of employment. The position of the law has been stated earlier in this judgment, and what is to be examined is whether the facts constituting the complaint in this case arose out of a specific contract or a complaint against an act done in the performance or execution of a public duty. See NPA Plc v. Lotus Plastics (2005) 19 NWLR (Pt. 050) 158 and Umukoro v. NPA (1997) 4 NWLR (Pt. 502) 656. In Bakare v. NRC (supra) and NBC v. Bankole (supra), the plaintiffs in the two cases instituted actions for unlawful termination of their employment outside 12 months as provided by the relevant statutes. The Supreme Court held that the actions were statute barred and defendants enjoyed the statutory privilege provided by S.83(1) of the Railway Act and Section 61(1) of the Broadcasting Corporation Act, which are identical to the Public Officers (Protection) Act. See also the case of Forestry Research Inst. Of Nigeria v. Gold (2007) 11 NWLR (Pt. 1044) P1, where the Supreme Court also held that Public Officers (Protection) Act applies to contracts of employment.

The present case, complaints of wrongful termination of employment by the respondent. The said act was done in the day to day activities of the respondent, in the discharge of its public duty. Section 4(2)(b) of the CIPB Act, Cap 89 LFN 1990, gives the Board the power to dismiss and exercise disciplinary control over its staff. The circumstances of this case cannot be said to have arisen out of a specific contract. The cases of Bakare v. NRC (supra), NBC v. Bankole, and FRIN v. Gold (supra) are decisions of the Supreme Court to the effect that Public (Officers Protection) Act is applicable to contracts of employment. This court is bound by the decisions of the Supreme Court. See CBN v Ukpong (2006) 13 NWLR (Pt.998) 555, Ogboru v Ibori (2006) 17 NWLR (Pt.1009) 542 and Dalhatu v Turaki (2003) 15 NWLR (Pt.843) 310. The submission of the appellant and the authorities cited are of no relevance, in the light of Supreme Court authorities directly on the issue.

Consequent upon the foregoing, I hold that Section 2(a) of the Public Officers (Protection) Act, Cap 379, LFN 1990 is applicable to contracts of employment. As the present action was instituted outside the three months limitation period, it is statute barred. The second issue for determination is resolved in favour of the respondents.

Having resolved the issues in favour of the respondent, the appeal is clearly bereft of any merit. The appeal fails and is hereby dismissed, with N30,000 costs in favour of the respondent.

Other Citations: (2009)LCN/3361(CA)