Alhaji Musa Abubakar & Anor V. The Executive Governor, Gombe State & Ors (2002)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

The appellants were the chairman and permanent commissioner respectively of the Gombe State Civil Service Commission appointed by the State’s former Military Administrator, Group Captain J.I. Orji in 1997 under section 179 of the 1979 Constitution of the Federal Republic of Nigeria. By a letter dated 27th of October, 1999, signed by the secretary to the State Government, the appellants were informed of the dissolution of the state Civil Service Commission with effect from 27th day of October, 1999 by the State Government.

Apparently dissatisfied with the decision of the 1st respondent in dissolving the Gombe State Civil Service Commission the appellants filed an originating summons dated 27th of March, 2000 but filed on 21st of March, 2000, for the determination of the following questions:-

“(1) Whether the Executive Governor of Gombe State is empowered under the Constitution of the Federal Republic of Nigeria, 1999 to dissolve the State Civil Service Commission, a body created under section 197 of the 1999 Constitution, by means of letter dated 27th October, 1999, Ref. No. GO/SS/POL/S/27/71.

(2) Whether the Executive Governor of Gombe State on his own without recourse to the House of Assembly can be said to have acted under S. 201 (1) & (2) 1999 Constitution when he removed from office the 1st plaintiff and 2nd plaintiff as chairman and permanent commissioner 1, respectively, of the State Civil Service by a letter dated 27th October, 1999 Ref. No. GO/SS/POL/S/27/71.

(3) Whether the Executive Governor of Gombe State could be said to be acting within his Constitutional powers when he reconstituted a new Civil Service Commission and purportedly appointed Ambassador Ali Gombe as chairman and Alhaji Yunusa Kaltungo, Alhaji Muhammadu A. Bajoga and Mr. Yilwa as members of the Commission.

(4) Whether the 1st and 2nd plaintiffs are not entitled to the following reliefs:-

(a) A declaration that the Executive Governor of Gombe State acted in excess of the executive powers vested in hi m under the 1999 Constitution when he purportedly dissolved the State Civil Service Commission by a letter dated 27th October, 1999.

(b) A declaration that the letter dated 27th October, 1999 emanating from the Executive Governor of Gombe State is unconstitutional, null, void and of no effect.

(c) A declaration that the removal of the 1st and 2nd plaintiffs as chairman and permanent commissioner 1, respectively of the Gombe State Civil Service Commission by a letter dated 27th October, 1999 is unconstitutional.

(d) A declaration that the 1st and 2nd plaintiffs be reinstated into office and are entitled to be paid all salaries and benefits accruing to them, owed them by the Gombe State Government.

(e) A declaration that the purported appointment of the 3rd, 4th, 5th, 6th,and 7th defendants by the 1st defendant, as chairman and members of the Gombe State Civil Service Commission is unconstitutional, null, void and of no effect whatsoever.

(f) An injunction restraining any person whatsoever and howsoever purportedly appointed by the Executive Governor of Gombe State into the offices of chairman and members of the Gombe State Civil Service Commission from assuming and occupying these offices until the final determination of this case.

(g) An injunction restraining the Executive Governor of Gombe State, his agents, representative or assigns and the 3rd, 4th, 5th, 6th, and 7th defendants their agents, representatives, or assigns from doing any acts which may prejudice the interest of the 1st and 2nd plaintiffs from discharging the functions or duties of their office pending the outcome and determination of this suit.”

After filing a memorandum of appearance to the summons, the respondents on the 20th of June, 2000, filed a motion on notice dated A 20th of June, 2000 praying for an order that the action commenced by the appellants by way of originating summons dated 27th of March, 2000 was statute-barred by virtue of section 2(a) of the Public Officers (Protection) Law, Cap. 127, Laws of Gombe State, 1991 and should be dismissed. The application was supported with affidavit. The appellants, as plaintiffs, filed a counter-affidavit against the application. After hearing arguments from counsel on both sides, the learned trial Chief Judge in a considered ruling upheld the preliminary objection and struck out the appellants’ suit. It is against the said ruling dated 13th of October, 2000, that the appellants appealed to this court.

The appellants filed three (3) grounds of appeal, from which they formulated three (3) issues for the determination of the court.

The issues read as follows: –

“(1) Whether the learned trial Judge was right when he held that the 1st respondent was a public officer within the meaning of section 2(a) of the Public Officer (protection) Law, Cap. 127 of the Laws of Gombe State.

(2) Whether, even if the 1st respondent is a public officer within the meaning of the Public Officers (protection) Law, the 1st respondent, in dissolving the Gombe States Civil Service Commission, could be said to be acting within his statutory or constitutional authority or duty as to entitle him to the protection of the law.

(3) Whether the learned trial Judge was right in holding that the appellants suit was statute-barred.”

From the same three (3) grounds of appeal filed by the appellants, the respondents also formulated three (3) issues as follows:-

(1) Whether the learned trial court erred in law in holding that the appellants’ suit is statute-barred by reason of section 2(a) of the Public Officers (Protection) Law, Cap. 127, Laws of Gombe State, 1991.

(2) Whether the trial court was wrong to have held that the first and second respondents (i.e. the Executive Governor and the Attorney-General of Gombe State) are Public Officers within the meaning of section 2(a) of the Public Officers (Protection) Law and therefore entitled to the protection under the law.

(3) Whether the appellants in their capacities as chairman and member of the dissolved State Civil Service Commission are under a contract of service and therefore the law is applicable to their suit instituted by way of an originating summons, a limitation law and not Public Officers (Protection) Law.”

A close study of the issues formulated by the parties shows that issue No. 1 in the appellants’ brief and issue No 2 distilled by the respondents are similar and the same in substance. They both raise the question as to whether the 1st and 2nd respondents are public officers within the meaning of the Public Officers (Protection) Law, Cap. 127 of the Laws of Gombe State, 1991. I will therefore treat issue No. 1 in the appellants’ brief and No. 2 distilled by the respondents together.

In treating the issue learned counsel for the appellants referred to the finding of the learned trial Judge at page 32 of the record of appeal. He also referred to section 2(a) of the Public Officers (protection) Law and the case of Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Others (1998) 14 NWLR (Pt.584) 1 and submitted that the learned trial court was in error when it held that the Governor of a State is a Public Officer within the meaning of section 2 (a) of the Public Officers (Protection) Law. He argued that the mere fact that the office of the Governor was a creation of the Public Officers (Protection) Law. He further argued that the office of the Governor was not comparable with that of the Attorney-General or Inspector-General of Police in that the office of the Governor was a political elective office. He referred to the definition of Public Officer as defined in the Interpretation Law and submitted that a Governor is not a public officer. He relied on the case of Onyia v. Governor – in – Council & Other (1962) All NLR (Part 1) 174 at 179. He urged the court to resolve the issue in favour of the appellants.

In arguing the issue in his own brief, the learned counsel for the respondents submitted that the 1st respondent is a public officer, like the other six respondents. He referred to section 176 of the 1999 Constitution of the Federal Republic of Nigeria and argued that the office was a creation of the Constitution like section 195 of the Constitution created the office of Attorney-General. He submitted that a State Governor was a public officer, or a person acting in the execution of public duty within the meaning of section 2(a) of the Public Officers (Protection) Law and the 1999 Constitution. He urged the court to resolve the issue in favour of the respondents.

What the court is being called upon to decide in the issue under consideration is whether the 1st respondent, the Executive Governor of Gombe State is a public officer or a person acting in the execution of public duty within the meaning of section 2(a) of the Public Officers (protection) Law.

Section 2(a) of the Public Officers (Protection) Law, Cap. 127, Laws of Bauchi State, 1991, applicable in Gombe State, provide as follows:-

2) Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or any public duty or authority or in respect of any alleged neglect or default in the execution of any 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 damage or injury, within three months next after the ceasing thereof….”

It is clear from the above provisions that section 2(a) of the Public Officers (Protection) Law aforesaid stipulates three months statutory period of limitation for commencing any action against a public officer for act done in the execution of his official duty.

The question that arises is, who is a public officer? or in other words, is a State Governor a public officer?

The office of a State Governor is a creation of the Constitution. Section 176 of the Constitution of the Federal Republic of Nigeria, 1999 establishes the office of a State Governor, it provides: ”

176(1) There shall be for each State of the Federation a Governor.

(2) The Governor of a State shall be the Chief Executive of that State.”

Similarly, the office of the Attorney-General of a State is also a creation of the Constitution. Section 195 of the 1999 Constitution established the office of Attorney-General for each State of the Federation. It says: –

“195(1 )There shall be an Attorney-General for each State who shall be the chief law officer of the State and Commissioner for justice of the Government of that State.”

Furthermore, the office of the 3rd – 7th respondents are also creation of the Constitution. Section 197(1)(a) of the 1999 Constitution establishes for each State of the Federation, a State Civil Service Commission, while part II of the third schedule to the said Constitution, item (A) paragraphs (a) and (b) provide for the chairman and members of the commission.

Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990, defines “Public Officer” as meaning “a member of the public services of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or public service of a State.

Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defines “the public service of a State” as meaning “the service of the State in any capacity in respect of the government of the State and includes service as:-

(a) …..

(b)……

From the above definition, a public officer is a member of the public service, either of the Federation or of the State in any capacity in respect of the Government of the Federation or the State as the case may be. Paragraph 19 of part 1 to the fifth schedule to the Constitution defines a public officer to mean a person holding any of the offices specified in Part II of the fifth schedule. Paragraph 4 of part II lists the Governor of a State as among public officers: paragraph 6 specifies the Attorney-General as a public officer, while paragraph 16 names chairman and members of commission or councils as public officers. In that regard, Governor of a State is a member of the Public Service of the State in the capacity of a Governor in respect of the Government of the State. In other words, a State Governor is a public officer.

The question still arises, as to whether a State Governor is a public officer within the meaning of section 2 (a) of the Public Officers (Protection) Law, Cap. 127 of the Laws of Gombe State, 1991; in other words, whether a State Governor is a person within the meaning of section 2(a) of the Public Officers (Protection) Law aforesaid.

It must be noted that the person being protected by the law under section 2(a) thereof, is “any person” against whom, an action, prosecution, or proceeding is commenced for any act done, in pursuance or 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 such Act, law, duty or authority. Section 2(a) of the Public Officers (Protection) Law does not say “any public officer”. What it says is “any person”. The question therefore is whether, a State Governor is “any person” within the meaning of the said law.

The definition of ‘any person” in the Public Officers (Protection) Law cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated. – See Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Others (1998) 14 NWLR (Part 584) 1 at 36; where the Supreme Court, per Iguh, JSC stated the law as follows:-

“It is beyond dispute that the word “person” when used in a legal parlance such as in a legislation or statute, connotes both a “natural person’. That is to say, a “human being” and an “artificial person” such as a corporation sole or public bodies corporate or incorporate. See Royal Mail Stream Packet Co. v. Graham (1877) 2 A.C. 381 at 386 (P.C.).”

Also in the Australian case of Leske v. S.A. Real Estate Investment Co. Ltd. (1930) 45 CLR 22, the position was stated per Rich and Dixon, J.J. at page 25 as follows:-

“The time has passed for supposing that the legislature would use the word ‘person’ only to signify a natural person in dealing with a class of business in which the utility of the proprietary company has long been made manifest. Indeed, it may be said that in modern business, as elsewhere, few ‘persons’ remain natural.”

In Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Others (supra) at pages 35-36. His Lordship, Iguh, JSC. Goes further to say:-

“Now to come nearer home, there is the Interpretation Law, Cap. 52, Laws of Northern Nigeria, 1963 which is of particular relevance and significance to the Public Officers (Protection) Law, Cap. 111, Laws of Northern Nigeria, 1963. That law makes provision for the ‘construction’ of laws and of the ‘terms’ and ‘provisions’ adopted in the Laws of Northern Nigeria. Section 2 thereof provides as follows: –

“(2) This law shall apply to this law, to all laws in force at the date of this law and to all laws thereafter enacted, and to regulations, orders, rules of court, appointments, notices and directions made, issued or given in Northern Nigeria consequent upon authority vested in any person or body by Act of Parliament or Order of the Queen-in-Council.”

In that regard, the point must be made that the interpretation and construction of the terms in the provisions of the public officers (Protection) Law, 1963 are fully covered by the definition contained in the said interpretation law.”

Section 3 of the Interpretation Law, Cap. 52, Laws of Northern Nigeria, 1963 defines the word ‘person’ by way of inclusion as follows: –

“Person” includes any company or association or body of persons corporate or unincorporated.’ See also section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990, which says: –

“Person” includes anybody of persons corporate or unincorporated”.

In that regard, it seems to me very plain that the definition of the word ‘person’ in the legal sense under the Nigerian Law is not limited to natural persons or human beings only. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate.

His Lordship Iguh, JSC further stated in Ibrahim v. Judicial Service Committee (supra) at page 36, as follows:-

“In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of ‘any person’ in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded. This is because to ascribe those words any limited meaning would tantamount to importing into the words of a statute, such qualifying or additional words that were not provided there in the first instance by the legislature. This exercise the courts are not permitted in law to indulge in. See Obafemi Awolowo v. Shehu Shagari (1979) 6-9 SC 51 at 68.”

To my mind, the key word that calls for interpretation in the section i.e. section 2(a) of the Public Officers (Protection) Law is “person”. The law itself did not provide definition for the word ‘person’. So we have to fall back on the Interpretation Law, Cap. 52, Laws of Northern Nigeria, 1963 applicable also to Gombe State and section 3 thereof defines the word ‘person’ as follows:-

Person’ includes any company or association or body of persons corporate or unincorporated.”

In addition to this wide definition of ‘person’ in the Interpretation Law (supra) the head notes of the law also provides additional information why the law was enacted, to wit:-

“A law to provide for the protection against actions of persons acting in the execution of public duties.”

The provisions did not use the word ‘officer’ but instead the word ‘person’. In my view, the purpose of using the word ‘person’ is obviously to widen the scope of the law to cover both human being and legal or artificial person such as corporate and unincorporated. The intention of the legislature is to provide protection for public officers, corporate and unincorporated bodies in the discharge of their public assignments. Used in the wide sense, the term any person will cover both natural human being and other bodies, corporate and unincorporated, thus covering the State Executive Governor and the Attorney-General of Gombe State as well as the members of the State Civil Service Commission. See Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Others (supra) at page 49.

In that regard, issues NO.1 in the appellants’ brief and NO.2 raised by the respondents are resolved and are hereby answered in the affirmative namely, that the 1st respondent is a public officer within the meaning of section 2(a) of the Public Officers (protection) Law.

ISSUE NO. 2

Issue No.2 formulated by the appellants reads as follows:-

“Whether, even if the 1st respondent is a public officer within the meaning of the Public Officers (Protection) Law, the 1st respondent, in dissolving the Gombe State Civil Service Commission could be said to be acting within his statutory or constitutional authority or duty as to entitle him to the protection of the law.”

This issue and issue No.2 raised by the respondents are also similar and the same in substance, I will therefore treat the two issues together. The question being asked in the two issues under consideration, is whether the 1st respondent as a public officer could be said to be acting within his statutory or constitutional authority or duty to justify any protection under the law, when he dissolved the Gombe State Civil Service Commission.

In arguing the issue, the learned counsel for the appellants referred to the findings of the learned trial Chief Judge at page 35 of the record of appeal. He also referred to sections 197, 198 and 201 of the Constitution of the Federal Republic of Nigeria, 1999 and submitted that the learned trial court was in error, when it held that the 1st respondent dissolved the Gombe State Civil Service Commission in the execution or intended execution of sections 197, 198 and 201 of the 1999 Constitution, and that his action was protected under section 2(a) of the Public Officers (Protection) Law. He argued that there was no evidence before the learned trial court as to the law relied upon by the 1st respondent in dissolving the said commission. He submitted that there was no law empowering the 1st respondent to dissolve the Gombe State Civil Service Commission. He argued further that for a public officer to enjoy the protection provided by section 2(a) of the Public Officers (Protection) Law, the officer must show that he acted within the bounds of his public duty or authority, otherwise, the officer would lose the protection. He relied on Aliyu Ibrahim v. Judicial Service Committee (supra) at page 21 and Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Part 245) 1 at 12. He submitted that the learned trial court was wrong to have assumed that the 1st respondent has constitutional authority to dissolve the Commission.

In his own argument on the issue, the learned counsel for the respondents referred to section 197, 198,201 and 316(4) of the 1999 Constitution of the Federal Republic of Nigeria and argued that when the 1st respondent dissolved the Gombe State Civil Service Commission and caused the Secretary to the State government to communicate the decision to the appellants, the 1st respondent was performing a statutory duty by virtue of the provisions of section 197, 198, 201 and 316(4) of the Constitution. He submitted that the 1st respondent was performing a statutory duty by virtue of the provisions of section 316(4) of the Constitution to dissolve the State Civil Service Commission and to remove the appellant. He argued that the propriety or otherwise of the act of the 1st respondent is not a relevant factor to be taken into account in the application of the provisions of section 2(a) of the Public Officers (Protection) Law. He urged the court to resolve the issue in favour of the respondents. The appellants filed appellants’ reply brief. They referred to the case of Igbe v. Governor of Bendel State (1983) 2 SC 114 and submitted that the 1st respondent was not entitled to the protection to public officers under section 2(a) of the Law.

The question that calls for an answer under this issue is whether the 1st respondent had the power to dissolve the Gombe State Civil Service Commission or whether he did dissolve the Commission in the execution or intended execution of his duty.

Section 2(a) of the Public Officers (Protection) Law Cap. 127, Laws of Bauchi State, 1991, applicable in Gombe State, provides:-

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty 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 in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

It is mainly the interpretation of the above section of the law, short and plain as it seems to be, that calls for decision in this appeal and in particular in the issue under consideration.

The Public Officers (Protection) Law, as its head note indicates is a law.

“to provide for the protection against actions of persons acting in the execution of public duties.”

It is a limitation law and the substance of section 2(a) is that where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof. It is the law that a statute of limitation, such as the Public Officer (Protection) Law, Cap. 127, Laws of Bauchi State, 1991, applicable in Gombe State, removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute-barred, that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such law.

The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or injured person to commence the action would have been extinguished by such law. See Michael Obiefuna v. Alexander Okoye (1961) 1 All NLR 357; Fred Egbe v. Adefarasin (1985) 1 NWLR (part 3) 549; Fadare v. Attorney-General, Oyo State (1982) NSCC 643.

However, for section 2(a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied, namely:-

(i) It must be established that the person against whom the action is commenced is a public officer within the meaning of that law;

(ii) That the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority:- See John Ekeogu v. Elizabeth Aliri (1991) 3 NWLR (Part 179) 258.

It can therefore be said that section 2(a) of the Public Officers (Protection) Law, 1991 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside limitation period of three months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty. Where, however, he acted within the colour of his office, he can only lose protection of the limitation law if he is sued within three months of the act, neglect or default complained of – See Nwankwere v. Adewunmi (1967) NMLR 45 at 49; Atiyaye v. Permanent Secretary Ministry of Local Government Borno State (1990) 1 NWLR (Part 129) 728; John Ekeogu v. Elizabeth Aliri (1991) (supra).

In their originating summons, filed by the appellants against the respondents, the question being asked is whether the 1st respondent as Executive Governor of Gombe State, has the power under the Constitution of the Federal Republic of Nigeria, 1999, to dissolve the State Civil Service Commission by means of a letter dated 27th October, 1999 as he did, and to remove the appellants without recourse to the House of Assembly of the state and reconstituted a new Civil Service Commission.

Section 197(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 established for each State of the Federation, the State Civil Service Commission. Section 198 of the said Constitution empowers the State Governor, in this case, the 1st respondent to appoint the chairman and members of the commission subject to confirmation by a resolution of the House of Assembly. By virtue of section 201 of the Constitution, the chairman and members of the Commission having been so appointed as stipulated in section 198 of the Constitution shall only be removed from office by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office or for misconduct.

Section 316 of the 1999 Constitution while making provisions in respect of existing offices, courts and authorities established under the 1979 Constitution provides as follows:-

“316 (1) Any office, court of law or authority which immediately before the date when this section comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder.

(2) Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.

(3) Notwithstanding the provisions of sub-section (2) of this section, any person holding such office, a member of a court of law or authority, who would have been required to vacate such office, or where his membership of such court of law or authority would have ceased but for the provisions of the said sub-section (2) of this section, shall at the expiration of the period prescribed therefor after the date when this section comes into force vacate such office or as the case may be, his membership of such court of law or authority shall cease, accordingly.

(4) The foregoing provisions of this section are without prejudice to the exercise of such powers as may be conferred by virtue of this Constitution or a law upon any authority or person to make provisions with respect to such matters as may be prescribed or authorised by this provision with respect to such matters as may be prescribed or authorised by this Constitution or such law, including the establishment and abolition of offices, courts of law or authorities, and with respect to the appointment of persons to hold offices or to be member of courts of law or authorities and their removal from such office, courts of law or authorities.

As indicated earlier in this judgment, section 197(1) (a) of the 1999 Constitution established the State Civil Service Commission. Section 198 of the said Constitution empowers the State governors, in this case, the 1st respondent, to appoint and constitute the chairman and members of the Commission. Section 201 has ensured that the chairman and members of the Commission by virtue of their having previously held office, shall continue for the duration of their remaining term. They are not new appointees but are deemed to be duly appointed. They can however be removed before their terms expires if section 201 (i) of the 1999 Constitution is complied with.

It is pertinent to note that the appointments of the appellants were made under the provisions of the 1979 Constitution. Section 316 (1) of the 1999 Constitution deals with the function of an office which was in existence by virtue of the 1979 Constitution. It went on to say that such office shall be deemed to have been duly established. The same sub-section (1) further provides that the office shall continue to be charged with such function, ‘until other provisions are made, as if the office, was established and charged with the said function by virtue of the 1999 Constitution or in accordance with any law made thereunder. It is therefore clear that the subsection deals with the function of the office and not with the holder of that offices: – See Samuel O. U. Igbe v. The Governor of Bendel State & Others (1983) 2 SC 114 at 134.

Section 316(2) of the 1999 Constitution, on the other hand, provides that any person who holds office by virtue of the 1999 Constitution, such as the appellants, immediately before the 29th of May, 1999, when the 1999 Constitution came into force, shall be deemed to be duly appointed to that office by virtue of the 1999 Constitution or by the Governor of Gombe State in pursuance of that Constitution.

Sub-section 3 of the same section 316 then made provisions for the term of office of the office holder whose office was saved by subsection (2) thereof. The sub-section states that such office holder who would have been required to vacate such office but for the saving provision of sub-section (2) shall vacate such office at the expiration of the period prescribed for the office.

The tenure of office of chairman and members of the Gombe State Civil Service Commission established by section 197 (1) of 1999 Constitution is prescribed in section 199(1) as follows:-

“199(1) A person who is a member of any of the bodies established as aforesaid shall, subject to the provision of this part, remain a member thereof:-

(a) in the case of an ex-officio member, whilst he holds the office by virtue of which he is a member of the body.

(b) in case of a person who is a member by virtue of his having previously held an office, for the duration of his life; and

(c) in the case of a person who is a member otherwise than an ex-officio member or otherwise than by virtue of his having previously held an office, for a period of five years from the date of his appointment.”

The appellants’ term of office would appear to come within the provisions of section 199(1)(c) above. This subsection, to my mind, preserves the remainder of their five-year term.

Moreover, since the appellants held the offices of the chairman and member respectively of the Gombe State Civil Service Commission by virtue of the 1979 Constitution, it is my view, that they would be deemed to have held the office, notwithstanding the change from military rule to civilian under the 1999 Constitution. See S.O.U. Igbe v. The Governor of Bendel State & Other (Supra) at page 138.

This construction, of course, implies that, if the appellants were to be removed from office as chairman and member respectively of the Gombe State Civil Service Commission, they could only be lawfully removed by following the procedure which will necessarily and rightly involve the House of Assembly, instead of the 1st respondent waking up one morning and instructing that the appellants be informed that the commission has been dissolved, without any legal instrument whatsoever. Section 201 (1) reads:-

“201(1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the state praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconducts.

2. This section applies to the offices of the chairman and members of the state Civil Service Commission, the State Electoral Commission and the State Judicial Service Commission.”

Consequently, the appellants’ appointments could not and did not cease when the new body (the State Civil Service Commission), already established by section 197 (1) of the 1999 Constitution, started function, as canvassed by the learned counsel for the respondents in his brief: – See Igbe v. The Governor of Bendel State (1983) 2 SC 114 at 139

Although the 1st respondent has the power to appoint and constitute chairman and members of the Commission under section 198 of the 1999 Constitution, he also has an implied power to remove or dissolve, provided the exercise of the implied power is invoked in the manner and subject to the limitations and conditions, if any, applicable to the power to appoint. In that regard, section 11(1) of the Interpretation Law Cap. 52, Laws of Northern Nigeria, 1963, applicable in Gombe State, provides as follows:-

“11(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:-

(a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b) Power to remove or suspend him;

(c) Power exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint

(i) to reappoint or reinstate him;

(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.”

It is pertinent to note that the alleged dissolution of the said State Civil Service Commission that eased out the appellants from the Commission was not effected by any legal instrument, but by an instruction to the Secretary to the State Government to inform the appellants that the Commission has been dissolved. How was the Commission dissolved? By what means. The Commission was established by section 197 of the 1999 Constitution. Can it just be dissolved by mere instruction? The answer is certainly in the negative. In view of all the reasons given above, I cannot subscribe to the contention that, in dissolving the Commission, the 1st respondent acted within his statutory or constitutional authority or duty as provided by the 1999 Constitution. He certainly did not. In truth and in fact what he wanted to do is to remove the appellants and appoint another chairman and members; the objective he could not achieve without complying with section 201 of the Constitution and which he did not comply with. In that regard, issue No.2 is hereby resolved in favour of the appellants.

ISSUE NO. 3

“Whether the learned trial Judge was right in holding that the appellants suit was statute-barred.”

This issue, from the argument canvassed by counsel on both sides is similar and the same in substance as issue No.3 in the respondents brief and they shall be treated together.

In arguing issue No.3, the learned counsel for the appellants submitted that the learned trial court was in error when it held that the suit of the appellants in the lower court was statute-barred. He argued that the appellant in their capacities as chairman and member of the Gombe State Civil Service Commission before the purported dissolution of the Commission were under a contract of service. He referred to the case of Samuel O. U. Igbe v. The Governor of Bendel State & Others (1983) 2 SC 114 at 139. He argued that on the authority of Igbe v. The Governor of Bendel State & Other (supra) the learned trial Chief Judge was in error when he held that the suit of the appellants at the lower court was caught by a statute of limitation, as all the conditions necessary to make the respondents avail themselves of the protection granted under section 2(a) of the Public Officers (Protection) Law existed. He said that the respondents failed to show that they were entitled to the protection of the public officers. He argued that the appellants were under a contract of service and that the applicable limitation law is not the Public Officers (Protection) Law, but the Limitation law. He relied on the case of Hassan Amao v. Civil Service Commission & 2 Others (1992) 7 NWLR (part 252) 214 at 228-229 and Peter I. Okeke v. Alhaji Baba & Other (2000) 3 NWLR (Part 650) 644. The learned counsel referred to section 42 of the limitation Law, Cap. 86 and submitted that the suit of the appellants was within the ambit of the general Limitation Law and not the Public Officers (Protection) Law. He urged the court to allow the appeal.

The learned counsel for the respondents in his own brief referred to ground 1 of the grounds of appeal to which, issue No.3 in the appellants’ brief relates, and submitted that it was entirely a fresh issue introduced by the appellants on appeal. He referred to paragraph (1) of the particulars of the said ground 1 of the grounds of appeal and submitted that the issue was a fresh issue being raised in the Court of Appeal. He said that issue of contract of service between the parties was not part of the issues raised at the trial court and was also not part of the issue raised at the trial court and was also not part of the trial court’s decision. He urged the court not to grant leave to the appellants to raise the fresh issue.

The learned counsel argued in the alternative, should leave be granted to the appellants to raise the fresh issue of contract of service, that the Gombe State Civil Service Commission to which the appellants belonged had been dissolved and therefore the appointment of the appellant had ceased, and that the argument of the appellants that they were under a contract of service and the Public Officers (Protection) Law was not applicable was misconceived.

He argued that the subject-matter of the appellants’ suit was not based on any contract between the parties; rather it was founded upon the exercise by the 1st respondent of the statutory or Constitutional power or duty vested in the 1st respondent. He urged the court to dismiss the appeal.

The appellants filed appellants’ reply brief in respect of issue No.3 for determination. It was argued in the appellants reply brief that the contention of the respondents that the appellants were importing ideas not contemplated by 1999 Constitution was without any basis. They argued that there was clear evidence before the trial Chief Judge as to when the appellants were appointed to their posts in the Gombe State Civil Service Commission. The learned counsel argued that the process by which the appellants were appointed was identical with the situation in the case of Igbe v. Governor of Bendel State (supra), and submitted that the findings clearly established the contractual nature of the appellants appointment, with some of the terms clearly spelt out in the Constitution.

Although the appellants did not relate issue No.3 raised by the appellants to any of the grounds of appeal, a cursory look at the said issue No.3 formulated by the appellants along with the grounds of appeal and the particulars thereunder as filed by the appellants shows clearly that issue NO.3 was distilled from ground No. 1 of the grounds of appeal. Ground one of the grounds of appeal reads as follows:-

“The learned trial Judge erred in law in holding that the appellants’ suit in the trial court is statute-barred.

PARTICULARS OF ERROR

(i) The Public Officers (Protection) Law, Cap. 127, Laws of Gombe State, 1991 will not avail the respondents against the suit brought by the appellants as the suit is founded on breach of the conditions of the appellants’ appointments as chairman and member of Gombe State Civil Service Commission.

(ii) The Public Officers (Protection) Law can only avail the respondents if they acted within the law.”

What ground 1 of the grounds of appeal is saying is that the suit between the parties was founded on the breach of the conditions of appointments of the appellants by the respondents, and therefore Public Officers (Protection) Law is not applicable, and the general Limitations Law is the applicable law.

The learned counsel for the respondents submitted that the issue of conditions of appointments or service of the appellants was never raised before the trial court. He argued that the appellants must first seek and obtain the leave of this court before they could raise the issue shown in paragraph (1) of the particulars to ground 1 of the grounds of appeal.

The issue raised for determination of the trial court are contained in the originating summons at pages 1 to 3 of the record of the record of appeal, which reads inter-alia as follows:-

“(1) Whether the Executive Governor of Gombe State is empowered under the Constitution of the Federal Republic of Nigeria, 1999 to dissolve the State Civil Service Commission, a body created under section 197 of the 1999 Constitution by means of letter dated 27th October, 1999.

(2) Whether the Executive Governor of Gombe State on his own and without recourse to the House of Assembly can be said to have acted under section 20(1) and (2) 1999 Constitution when he removed from office the 1st and 2nd plaintiffs as chairman and permanent commissioner respectively, of the State Civil Service Commission by a letter dated 27th October, 1999.

(3) Whether the Executive Governor of Gombe State could be said to be acting within his constitutional powers when he reconstituted a new Civil Service Commission and purportedly appointed Ambassador Ali Gombe as the chairman and Alhaji Yunusa Kaltungo, Alhaji Muhammadu A. Gwani, Alhaji Abubakar A. Bajoga and Mr. Yilwa as members of the Commission.

(4) Whether the 1st and 2nd plaintiffs are not entitled to the following reliefs:-

(a)………..

(b)………..

(c) A declaration that the removal of the 1st and 2nd plaintiffs as chairman and permanent commissioner 1, respectively of the Gombe State Civil Service Commission by a letter dated 27th

October, 1999 is unconstitutional.

(d) A declaration that the 1st and 2nd plaintiffs be reinstated into office and are entitled to be paid all salaries and benefits accruing to them, owed them by the Gombe State Government………

A close reading of the originating summons shows that claim 4(c) and (d) clearly reveals that issue as to the constitutionality of the removal of the appellants from office was raised before the trial court. The appellants clearly raised the issue of unconstitutionality in their removal from office. In paragraphs (a), (b), (i) and (j) of the affidavit in support of the originating summons, the appellants averred that they were appointed in 1997 for a statutory period of five years and the five years had not expired at the time of the dissolution of the Commission and their consequent removal from the office. In that regard, I think the issue of a breach of the conditions of appointments of the appellants was raised before the trial court and the appellants need not to first seek and obtain leave of this court before raising the issue in this appeal.

The learned counsel for the appellants argued that the appellants were under a contract of service in the Commission and therefore the applicable law is the general Limitation Law and not the Public Officers (Protection) Law. He relied on the case of Igbe v. The Governor of Bendel State (supra). I have carefully read through the case of Igbe v. The Governor of Bendel State (supra) the issue of limitation of action was never raised and decided in that case. The case of Igbe v. The Governor of Bendel State is certainly not relevant on the issue of limitation of action arising in this case. Similarly, the issue of the appellants having a contract of service as the basis for non applicability of the Public Officers (Protection) Law was never raised or decided in Igbe v. The Governor of Bendel State (supra).

As regards the question of whether the appellants’ suit was caught by the Public Officers (Protection) Law, it was the contention of the appellants that the suit was not caught by the Public Officers (Protection) Law, as the 1st respondent did not act within his constitutional or statutory authority or duty.

In Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Part 584) 1 at 32, the Supreme Court, per, Iguh, JSC stated the law as follows:-

“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law”. See Michael Obiefuna v. Alexander Okoye (1961) 1 All NLR 357; Fred Egbe v. Adefarasin (No.2) (1985) 1 NWLR (part 3) 549: Fadare v. Attorney-General, Oyo State (1982) 13 NSCC 52.

However, for section 2(a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied, namely:-

(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law;

(ii) the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of any neglect or default in the execution of any such law, duty or authority. See John Ekeogu v. Elizabeth Aliri (1990) 1 NWLR (part 126) 345.

It can therefore be said that section 2(a) of the Public Officers (Protection) Law, gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the Commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty.”

Earlier in this judgment I had found and held that in dissolving the Commission, the 1st respondent did not act within his constitutional or statutory authority or duty. He indeed acted outside the colour of his constitutional duty. In that regard it is my view that the respondents are not covered or protected by section 2(a) of the Public Officers (Protection) Law and the action was not statute barred.

In the final analysis, I find merit in the appeal and it is accordingly hereby allowed. I therefore set aside the decision of the learned trial court, contained in its ruling delivered on the 13th of October, 2000 in suit No. GM/6612000. There shall be costs of (N5,000.00) Five Thousand Naira to the appellants against the respondents.

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Other Citations: 2002)LCN/1204(CA)