Controller-general Of Prisons & Ors V. Mr. Ikponmwosa Idehen (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Respondent, an Assistant Superintendent of Prison then in charge of the Ogba Prison Farm, Oko, Benin City, was first removed from service on an allegation of theft and looting of government property, however, he was later re-instated vide letters dated 20th August 1996.

By a letter dated 15th August 1997, he was asked to proceed on his annual leave but when he resumed duty on the 29th of September 1997, he was served with a letter dated 1st September 1997, which notified him that he was dismissed from service with immediate effect for misconduct.

He took the letter to his Solicitors, and the action that led to this appeal was filed at the Federal High Court, Benin City on 11th December, 1997. His Statement of Claim was filed much later on 18th March 2002, and it was amended three times. The relevant pleading is the second Further Amended Statement of Claim filed on 13th January 2005, wherein the Respondent as Plaintiff claimed as follows in paragraph 55 –

1. A declaration that the purported dismissal of the Plaintiff by the Defendants vide letter reference No. IPS/REM/FCS/185/S.2/20 dated 1/9/97 is incompetent and in breach of the rules of natural justice and is ” therefore null and void and of no effect whatsoever.
2. An order of this Honourable Court compelling the Defendants to reinstate the Plaintiff forthwith and be paid all his arrears of salaries, wages and other entitlements from the 1st of September, 1997 up till the date of Judgment.

In the alternative to 2 above an order that the Plaintiff is entitled to salaries, wages and other allowances attached to his post as Assistant Superintendent of Prisons with effect from the date of dismissal until he attains the age of 60 years in the year 2024, and the sum of N2, 000.00 as damages. Any other equitable relief’.

The Appellants filed their Statement of Defence on 9th July 2002, and they also filed a number of processes objecting to the Respondent’s suit.

The first is a Notice of Preliminary Objection filed on 29th October 2002, wherein the lower Court was urged to dismiss the suit on Grounds that –

1. The action having been commenced after three months after the cause of action arose is contrary to Section 2 (a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria [LFN] 1990.
2. The cause of action arose on the 1st day of September 1997 and the action was filed on the 11th of December 1997, which is more than three months.
3. The action is not justiciable.

The Notice of Preliminary objection was struck out for want of diligent prosecution by G. O. Kolawole, J., but after the suit was transferred to Court 2, the Appellants filed a Motion on Notice on 29th April 2004 for –

“An Order setting down for hearing the point of law raised in paragraph 22 of the Applicants’ joint statement of Defence to wit that this suit is unamenable to the jurisdiction of this Court, as it is statute barred”.

The Application was argued before B. O. Kuewumi, J., and he held in his Ruling delivered on the 4th of November 2004 that the Public Officers Protection Act is not applicable to contracts of employment; and that the Appellants did not discharge the burden of showing that the Respondent was served with the letter of dismissal on the 1st of September 1997.

Kuewumi, J. was later transferred, and the Appellants filed yet another application on 14th December 2005, urging the lower Court presided over by C. V. Nwokorie, J. to dismiss the suit on the Grounds-

1. That the suit is statute barred, having been commenced after the three months statutory period required for the filing of this suit.
2. That the Defendants/Applicants being Public Officers are protected under the Public Officers Protection Act LFN 1990, and that-
3. The suit does not disclose any reasonable cause of action as same is a mere academic exercise, having been overtaken by effluxion of time.

However, nothing was said or done about this application before Nwokorie, J. delivered Judgment on 14th June 2006, wherein he said –

“I am bound to firstly decide on the issue of jurisdiction, because it has already been raised and commented on by both learned counsel. It is quite easy for me to dispose of it as I have already held that throughout the proceedings de novo in this Court no process was filed by any of the parties on the issue of jurisdiction based on the Public Officers Protection Act or any other grounds.

It is therefore not necessary to fall back on the said Ruling of Kuewumi, J., delivered on the 4th of November 2004….”. (Italics mine)

He concluded as follows at page 265 of the Record –

“In the final result, I hereby enter Judgment for the Plaintiff in line with Paragraph 55 of his Statement of Claim and I declare and order as follows –

1. The purported dismissal of the Plaintiff by the Defendants by the instrumentality of their letter dated September 1, 1997 …. is incompetent and constitutes a flagrant breach of the hallowed Rules of natural justice, equity and good conscience, and is therefore null, void and of no effect whatsoever. The said letter is hereby set aside along with the Report of the Mr. M. M. Chukwuma Investigation Report dated 27/11/95.
2. The Defendants are to re-instate the Plaintiff forthwith unto his pristine position in the service namely: Deputy Superintendent of Prisons (DSP) and he is entitled to be paid all his arrears of Salaries, Wages and other Entitlements/Emoluments from the 1st of September, 1997 up till today”.

Dissatisfied, the Appellants filed a Notice of Appeal with three Grounds of Appeal in this Court, and in their brief of argument prepared by S. O. Gegele, Esq., it was submitted that the Issues for Determination are.

Whether having regard to the pleadings and evidence led and/or adduced by the Respondent in support thereof, the Court was right in not holding that the suit was statute barred this has indeed occasioned a miscarriage of justice?

ii. Whether the Court rightly exercised its judicial power of adjudication by promoting the Respondent by judicial fiat? In other words, whether a Court of law can competently usurp the administrative power of promotion inherent in the Civil Service without recourse to the laid down procedure to promote a litigant civil servant?

iii. Whether upon the proper evaluation of the evidence led in Court the decision was not perverse and/or against the weight of evidence.

The Respondent, however, submitted in his brief prepared by Monday K. Agienoji, Esq., that the following Issues arise for determination in the appeal-

1. Whether the suit is statute barred.
2. Whether the Court was right in giving judicial effect to the promotion of the Plaintiff to the rank of Deputy Superintendent of Prisons.
3. Whether the decision of the Court is against the weight of evidence.

The Respondent’s issues are more succinct, but the issue of whether the suit is statute barred touches on jurisdiction, and must be resolved first.

To start with, the Appellants complained that the lower Court did not allow them to move their Application of 14th December 2005, which prayed for an order striking out the suit because it is statute barred.

The Respondent, however, argued that the Appellants’ counsel “must have developed cold feet” and jettisoned the motion when it dawned on him that the issue had been earlier canvassed and decisively determined by the Court, and they had not appealed against the Ruling; that the Court had become funtus officio and the issue res judicata; and that the Court lacked jurisdiction to re-open, review or revisit the issue, nor can it sit on appeal over a decision of another Court.

The Appellants submitted in their Reply Brief that the Respondent misconceived the principles of res judicata and what it means to start a case de novo,’ that the authorities cited are distinguishable from this case that started de novo; and that the issue relates to jurisdiction that can be raised at any stage, and this Court can even raise it suo motu.

Now, the Appellants filed three different processes objecting to the Respondent’s suit being heard on the ground that it was statute barred.

The first one was struck out by the Court for want of diligent prosecution.

The second was heard and determined by Kuewumi, J., and since there is no appeal against his decision, it cannot be the subject of this appeal.

The third Application puts a lie to the statement of Nwokorie, J. that “no process was filed by any of the parties on the issue of jurisdiction based on the Public Officers Protection Act”. The Record shows that he took over the proceedings from Kuewumi, J. on the 26th of October 2005, and the Application filed on 14th December 2005, is at pages 205/206.

But it is apparent that the application was not moved, and the Court’s attention was not drawn to it. What’s more, no pronouncements were made thereon that would necessitate this Court looking into whether the Court was indeed functus officio or that the issue became res judicata.

Suffice it to say that the Appellants are right; it would not have mattered anyway because the issue at stake is one that touches on jurisdiction, and it is very well settled that the issue of jurisdiction, by whatever name and under any shade, can be raised anytime anywhere. It can be raised at the Supreme Court for the first time even without leave of that Court, and it can be raised viva voce [orally] or the Court can raise it suo motu-see Omomeji V. Kolawole (2008) 14NWLR (Pt. 1106) 180 SC.

In effect, even if the lower Court glossed over the application or even if it had considered it and dismissed it for whatever reason, the bottom line is that this Court can on its own and it will address the issue squarely because any lack of jurisdiction on the part of a Court is fatal, and a plea that an action is statute barred is one that raises the issue of jurisdiction – see Adekoya V. F.H.A. (2008) 11NWLR (Pt. 1099) 539 SC.

The Public Officers Protection Act is a limitation law and the substance of its Section 2 (a) is that any action against any person for any act done in pursuance of any public duty must be commenced within three months of the act, neglect or default complained of. The said Section 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, or authority, or in respect 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, interim three months next after the ceasing thereof.”

The Appellants’ contention is that the lower Court lacked jurisdiction because the cause of action arose on the 1st day of September 1997, and the Respondent filed the action on the 11th day of December 1997.

The Respondent, on the other hand, argued that the said Section 2 (a) of the Act does not apply to a breach of contract of service or employment, citing Alakpiki V. The Governor of Rivers State & anor. (1991) 8 NWLR (Pt. 211) 575, Amao v. Civil Service Commission (1992) 7 NWLR (Pt 252) 218, and FRN V. Zebra Energy Ltd. (2003) 3 WRN 1.

The issue is easily resolved. Apart from the fact that the decisions in Alakpiki V. Gov. Rivers State (supra) and Amao v. C.S.C. (supra)were more or less set aside by the Supreme Court in Ibrahim V. JSC (1998) 14 NWLR (Pt. 584) 1, one of the many issues resolved in that case is that a similar limitation law applied to a breach of contract of service.

With particular reference to Alakpiki’s case (supra) and Amao’s case (supra), the Supreme Court per Iguh, JSC held as follows at page 45 –

“I have repeatedly stressed that all the Court of appeal cases, which establish that the Public Officers Protection Law only applies to protect public officers as individuals or natural persons … erroneously arrived at those decisions from the obiter dictum in the Okewale case. That obiter dictum, by no means, forms any part of ratio decidendi in the case. … The set of cases of the Court of Appeal which purports to have applied the decision in the Okewale case were decided per incuriam and ought not to be allowed to stand”.

Iguh, JSC further held as follows in the same Ibrahim V. JSC (supra)-

“Having held that the act complained of was an act done by the Respondents in the direct execution or in the discharge of a public duty, the conclusion I therefore reach is that the said respondents fall within the contemplation of the protection afforded by the Public Officers (Protection) Law.. The cause of action in the suit arose on the 8th of February 1984 on which date the Appellant was retired from the Judicial Service of Kaduna State. The present action, however, was not commenced until the 28th of April 1998, a period over two years since the cause of action in the suit arose. It is clear that the Appellant’s suit is caught by the provisions of the Public Officers (Protection) Law, 1963 and is therefore statute-barred”. (Highlights mine)

In this case, the Respondent is not contesting the fact that his letter of dismissal is dated 1st September 1997, and that he filed the action at the lower Court on 11th December 1997, rather his case is that time began to run when he was served with the said letter on 29th September 1997.

Again, the Respondent’s contention will not hold up, and this is thanks to the decision of the Supreme Court in Eboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649 cited by the Appellants, wherein Onu, JSC held-

“….This statute of limitation as with other such statutes, begins to run the moment a cause of action accrues, not when it is discovered’.

Sadly, the Respondent filed his action a mere ten days after the three months period allowed, but late is late, and his suit is caught by the provisions of the Public Officers Protection Act, thus, it is statute-barred.

The Appellants also raised another issue, which complains that the Nwokorie, J. promoted the Respondent by judicial fiat, in his Judgment.

But the effect of our decision that the Respondent’s suit is statute barred is that the entire proceedings at the lower Court are a nullity, and everything done at the lower Court in respect of this matter is wiped away as if they never happened. There is therefore nothing before us to stand on or base any pronouncements on what is clearly a vexed issue.

In the final analysis, the appeal succeeds and it is hereby allowed.

The Judgment of the lower Court delivered on the 14th day of June 2006, and the orders made therein are hereby declared null and void, and are therefore set aside in its entirety.

There will be no order as to costs.

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Other Citations: (2009)LCN/3463(CA)