Felix Anozie V. Attorney General of the Federal Republic of Nigeria. & Ors (2007)
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JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the ruling of the Federal High Court, Enugu delivered on the 25th day of May, 2004 in suit No. FHC/E/CS/22/2003 – Felix Anozie AND Attorney General of the Federal Republic of Nigeria and others.
By paragraph 32 of the Statement of Claim, the Plaintiff now Appellant sued the Defendants now Respondents jointly and severally praying for the following reliefs:-
“(a) Declaration that the Plaintiff cannot be dismissed from the 3rd Defendant’s employ except as laid down in the Regulations governing the conditions of service of Staff Federal Colleges of Education in Nigeria.
(b) Declaration that the letter of 27th day of April, 1999 is null and void and of no consequence.
(c) Declaration that the Plaintiff is entitled to all his salary and promotions which became due to him from the 27th day of April, 1999 till the date of his retirement from service.
(d) Declaration that the Defendants have no reason whatsoever in the circumstance of this case to continue to treat the Plaintiff as if he is not a staff of 3rd Defendant.
(e) Declaration that the Defendants have no reason whatsoever not to pay the Plaintiff his remunerations as a staff of the 3rd Defendant.
(f) An order compelling the 4th Defendant to restore the Plaintiff to his position as a Staff of the 3rd Defendant.”
In a considered ruling, the trial court after listening to addresses from both counsel dismissed the Plaintiff’s suit for being statute barred.
The Plaintiff/Appellant being dissatisfied with the said ruling of the lower court now appealed to this Court.
The appellant formulated one issue for determination as follows:-
“Whether the Plaintiff’s suit is statute barred.”
The 3rd to 5th Respondents on the other hand also formulated one issue for determination as follows:-
“Whether from the facts of this matter the Plaintiff’s suit was statute barred.”
At the hearing, Learned Counsel for the appellant and 3rd to 5th respondents adopted and relied on their respective briefs of argument.
In determining this appeal, I think it will suffice to consider the sole issue formulated in the appellant’s brief of argument in view of the fact that the issues formulated on behalf of the parties are similar.
The Learned Counsel for the appellant submitted that the Plaintiff’s claim was based upon continuing wrong. He referred to paragraphs 17 to 22 of the Statement of Claim.
He went further in his submission assuming however without conceding that the Plaintiff did not make out a case of continuing injury, that Section 2(a) of the Public Officer’s Protection Act cannot apply where the action complained against involves:-
(i) Malicious act or outside the confines of Statutory Authority
(ii) A breach of contract.
He referred to the cases of:-
– Dr. Mathias Oko Offoboche Vs Ogoja Local Government & another (2001) 36 WRN Page 1.
– Abubakar Vs. Gov. Gombe State (2002) 17 NWLR Part 797 Page 533 at 576-577.
– Ibrahim Vs. J.S.C. (1998) 14 NWLR Part 584 at 32.
Learned Counsel for the Appellant submitted further that the Plaintiff/Appellant’s action was based on the termination of contract of service and that Section 2(a) of the Public Officer’s Protection Act has no application in action based on contract. He referred to the case of:-
– Oduka Vs. Ebonyi State (2004) 13 NWLR Part 891 Page 487 at 503-504.
The Learned Counsel for the 3rd to 5th respondents on the other hand submitted that the findings of the trial court that the appellant and respondents came within the purview of the Public Officer’s (Protection) Act and that there is no averment of continuing wrong in the appellant’s statement of claim stand since it was not challenged.
Learned Counsel also stated that it is the law that any person who fails to bring an action against a public officer within 3 months from the accrual of his cause of action loses the right to make good his case through the court and further that where an action is statute barred, the courts lacks competence to entertain the matter.
He referred to the following cases:-
– E. Emiantor V. Nigerian Army (1992) 72 LRCN 3132 at 3150. – Araka V. Ejeagwu (2001) 5 W.R.N. Page 1.
– Ndayako V. Dantoro (2004) 13 NWLR Part 889 at 187. – I.G.P. V. Nomiri (2006) 35 W.R.N. Page 117.
He submitted that the appellant should have instituted the action within three months and not almost four years as in this case.
He finally urged that the appeal should be dismissed.
The appellant was dismissed from the employment of 3rd Respondent by a letter dated 27th day of April, 1999. And he brought this action against the respondents at the lower court on the 5th day of February, 2003. He claimed that the action was based on continuing wrong. It was also submitted on behalf of the appellant that Section 2(a) of the Public Officer’s Protection Act will not apply where the action complained of involves:-
– Malicious Act.
– A breach of contract.
The lower court in its ruling concluded that the appellant’s case was statute barred based on the fact:-
(1) that the appellant and the respondent came within the purview of the Public Officers (Protection) Act.
(2) That there is no averment of continuing wrong in the appellant’s statement of claim.
The appellant did not appeal against the above findings.
It is trite that where a finding or a decision rightly or wrongly is not challenged on appeal, such a decision rightly or wrongly cannot be disturbed on appeal. In other words, where an appellant has filed no ground of Appeal against any part of the judgment of the trial court, which is adverse to him, it must be deemed that, that part of the judgment stands.
See the following cases:-
– Okonkwo V. INEC (2004) 1 NWLR Part 854 Page 242. – Okoye V. N.C.F.C. (1991) 6 NWLR Part 199 Page 501.
– Nwabueze V. Okoye (1988) 4 NWLR Part 91 at Page 664.
In view of the foregoing there is therefore no dispute that the letter of dismissal dated the 27th day of April, 1999 was the cause of action.
The appellant filed the action against the Respondents at the lower court on 5th day of February, 2003 as a result of the dismissal letter served upon him dated 27th day of April, 1999.
It was submitted on behalf of the 3rd to 5th Respondents that the appellant should have instituted the action within 3 months after the receipt of that letter.
The Public Officer’s Protection Act stipulates the period within which an action can be brought against a Public Officer.
Section 2(a) of the Public Officers Protection Act Cap. 379
Laws of the Federation of Nigeria 1990 provides:-
“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 act or law or of any public duty or authority or in respect of any alleged neglect or default in 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 damage, or injury, within three months next after the closing thereof.”
For Section 2(a) of the Public Officer’s Protection Act to avail any person two conditions must be satisfied.
(a) 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.
(b) The act done 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 vs. E. Aliri (1990) 1 NWLR Part 126 page 345.
In Ibrahim Vs. J.S.C. (supra) it was held among others that although the title of the Public Officer’s (Protection) Law implies a Law to protect “public officers” and not “public offices” government positions such as Attorney general, Permanent Secretary, Inspector General of Police etc. although “Public Offices” they are nonetheless “Public Officers in Law”. Permanent Secretary, Ministry of Works etc. V Balogun (1975) NSCC Page 292 referred to and followed)…
There is no doubt that the respondents are public officers and the letter of dismissal which was the cause of action was served on the appellant in accordance with the law.
A perusal of the letter of dismissal dated 27th day of April, 1999 vis-a-vis the Statement of Claim filed by the appellant at the lower court dated 5th day of February, 2003, upon which the appellant based his claim against the respondents showed clearly that the appellant brought the action more than three months after receipt of the letter of dismissal which is the cause of action in this matter.
Where a statute provides for the bringing of an action within a prescribed period in respect of a cause of action that had accrued to a claimant, proceedings cannot be brought after the time prescribed by such a statute. See the following cases:-
– Ndayako Vs. Dantoro (supra), – Ogoh Vs. Enpee Ind. Ltd (2004) 17 NWLR Part 903 Page 449.
– Dalfam (Nig) Ltd. Vs. Okaku Int’l Ltd. (2001) 15 NWLR Part 735 Page 203.
Section 2(a) of the Public Officer’s (Protection) Law gives full protection to all public officers or persons engaged in the execution of public duties who at all the 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 outside their statutory or constitutional duty they automatically lose the protection of that law. Where however a public officer 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 the following cases:-
– Nwankwere Vs. Adewumi (1967) NWLR Page 45 at 49. – Ekeogu Vs. Permanent Secretary. Ministry of Local
Government, Bornu State (1990) 1 NWLR Part 129 Page 728.
In the instant case, the appellant contended that the letter of dismissal served on him was as a result of malice on the part of the respondents, he referred to paragraphs 14 to 21 of the Statement of Claim.
In my own view, the said paragraphs referred to by the appellant are matters of evidence, but the most important question at this stage is – why was the appellant’s action not filed before the 5th day of February, 2003 when the cause of action accrued since the 27th day of April, 1999?
The simple answer is that the appellant had been careless, if he had been diligent enough he could have filed the action within 3 months from the date the cause of action accrued. He cannot raise the issue of malice since he was clearly outside the limitation period.
There is also nothing on the face of the claim before the lower court to show breach of contract. Furthermore the issue of breach of contract was not canvassed in the address at the lower court and before it could be raised on appeal the appellant must have obtained leave to do so but this was not done.
See – Ibori Vs. Agbi (2005) WRN Page 1 at 20. – Ejiofodomi Vs. Okonkwo (1982) 11 S.C. Page 74.
– Attorney General of Oyo State Vs. Fairlakes Hotel Ltd. (1988) 5 NWLR Part 92 Page 1.
In view of the foregoing, there is nothing from the appellant to show that the Respondents did not act within the confines of their public duty, therefore the lower court was right in dismissing the Plaintiff/Appellant’s claim because the period of three months specified in Section 2(a) of the Public Officer’s (Protection) Act for instituting an action had elapsed before the appellant filed his claim. Consequently the appellant lost his right to bring an action by judicial process.
See – Araka V. Ejeagwu (Supral – Ibrahim Vs. J.S.C. (Supra).
– J.E. Emiantor Vs. The Nigerian Army & others (Supra).
In the result, this appeal fails, and it is hereby dismissed.
The Respondents are entitled to costs which is fixed at (N7,500.00) Seven Thousand and Five Hundred Naira against the appellant.
Other Citations: (2007)LCN/2418(CA)
