Francis Ofili V. Civil Service Commission (2007)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the judgment of Delta State High Court No. 3, Asaba. In a judgment dated 29th January, 2004, the learned trial judge held that the Plaintiffs/Appellant’s action in Suit No. A/166/2002 was statute-barred and accordingly struck it out. In a statement of claim dated 12th September, 2002 and filed on 16th September, 2002, the plaintiff/appellant prayed for the following reliefs before the lower court.
They are:
- “A declaration that the purported termination of the plaintiff’s appointment by a letter dated the 4th day of August, 2000, reference No. AD/C.62/5/7 is improper, invalid, null and void and of no effect whatsoever;
- An order that the plaintiff is still in the employment of the defendant;
- An order directing the defendant to re-instate or restore the plaintiff to his position and/or status before the purported termination without loss of salary, allowances or seniority and without prejudice to entitlements and promotions which might have accrued to him during the period of purported termination; and
- A perpetual injunction restraining the defendant, its servants and/or agents from interfering with the plaintiff’s performance of his duties with the defendant.”
The defendant joined issues with the plaintiff in a statement of defence filed on 26/02/03 out of time with the leave of the court below.
Upon further applications sought and granted this statement of defence was to be amended and further amended on about 3 subsequent occasions. The plaintiff opened his case and testified as PW1 on 19th March, 2003. The plaintiff was cross-examined by counsel to the Defendant/Respondent on 27/5/03 and closed his case accordingly. The defence opened its case on 29/7/03. A single witness, Mr. Imilar E. John, testified as the defence witness. The defence closed its case on 30th September, 2003. After the addresses of respective learned counsel on 5th November, 2003, and on 19th November, 2003, the court adjourned and delivered its judgment on 29th January, 2004. In this judgment, the learned trial judge, Diai, J. held that:-
“…the plaintiff s action is statute barred… Having found that this action is statute-barred, it is the order of this court that the suit be and is hereby struck out.” (see page 103-104 of record of appeal).
The plaintiff was dissatisfied with this judgment and therefore filed this appeal by way of a notice of appeal dated and filed on 3rd February, 2004.
The appellant’s brief was filed on 11th April, 2005 while the respondent’s brief was filed on 6th December, 2005. The respondent’s brief was filed out of time with the leave of this court. At the hearing of the appeal before us on 20th November, 2006, respective learned counsel adopted and relied on their respective briefs. From the lone ground of appeal, learned counsel to the appellant formulated a single issue for determination in this appeal. Learned counsel to the respondent adopted the issue for determination as formulated by the appellant. The issue for determination in this appeal as formulated by the appellant is:-
“Whether the learned trial judge was right in holding that the appellant’s action was statute-barred by virtue of S.2 (a) of the Public Officers Protection Law, CAP 137 Col.5 Laws of Bendel State of Nigeria 1976 as applicable to Delta State.”
Mr. Kanu for the Appellant began with a reproduction of the provisions of S.2 (a) of the Public Officers Protection Law, CAP 137 Laws of Bendel State 1976, as applicable to Delta State (hereinafter CAP 137). He then went on to explain that the cause of action in this case was the termination of the appointment of the Appellant by the Respondent in August, 2000. He explained further that it is a fundamental principle of law that rights of parties in litigation are decided on the basis of the law in existence or in force at the time of the act in question or when the cause of action arose.
This explanation of learned counsel was supported with the decisions in OLU ROTIMI 72 ORS V. MRS. MACGREGOR (1974) 11 SC 133 at 140-141. BOLA TINUBU V. I.M.B. SECURITIES (2001) 9 SCNJ 1 at 14 and MUSTAPHA V. GOVERNOR OF LAGOS STATE & 3 ORS. (1987) 5 SC 114 at 120-121.
According to learned counsel Mr. Kanu, the law applicable to this suit when it was instituted on 14th August, 2002 was the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution). He referred to the definition of a public officer in S.19 of part 2 of the 5th Schedule. He went to a great length to list all the public officers set out in the 1999 Constitution for the purpose of Code of Conduct. Based on this listing of 16 names and offices, learned counsel argued that the definition of a public officer does not include the respondent because it is a statutory body provided by S.1(1) in part 2 of the 3rd Schedule to the 1999 Constitution. He, upon this argument, submitted that any definition of a public officer in any law which is in conflict with the definition in the Constitution, is invalid, unconstitutional and void to the extent of its inconsistency with the provisions of the Constitution. In support of this submission, learned counsel, Mr. Kanu relied on the decisions in EREKU & 5 ORS V. THE MILITARY GOVERNOR OF MID-WESTERN STATE OF NIGERIA & 3 ORS. (1974) 10 SC 59 at 74, ONYUIKE V. EASTERN STATES INTERIM ASSETS & LIABILITIES AGENCY (1974) 10 SC 77 at 88 and ADISA V. OYINWOLA & 4 ORS. (2002) 2 SCNQR (PT.2) 1264 at 1322.
Learned counsel submitted that the decision of the learned trial judge that the appellant’s suit was statute-barred is not supportable in law and he urged us to so hold. In conclusion, learned counsel maintained that the learned trial judge erred when he held that this action was statute barred and also erred when he held that the appellant’s action against the respondent was an action against a public officer which ought to have been commenced within three months of the accrual of the cause of action. He urged the court to set aside the judgment of the lower court of 29th January, 2004 and to make what he chose to call other orders as the justice of this appeal demands.
In his reply, learned counsel to the respondent opened by introducing the provision of S.2 (a). According to learned counsel, the provisions of S.2 (a) of CAP 137 are pari material with S. 2 (a) of the Public Officers Protection Act CAP 379, Laws of the Federation of Nigeria 1990 (CAP 379). He added that by these provisions, where any action is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or any public duty or authority, in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the action or proceeding shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of. He added further that any action brought after the expiration of the stipulated period of 3 months is not maintainable in law. Learned counsel referred to the case of EBOIGBE V. NNPC (1994) 5 NWLR (PT.347) 659 and submitted that because the appellant did not bring his action within 3 months, it was statute-barred by virtue of S.2(a) of CAP 137.
In a further explanation, learned counsel opined that the public officers protection law as a limitation law gives full protection to all public officers or persons engaged in the execution of public duties who at the time of conducting public affairs acted within the confines of public duty.
According to learned counsel the term public officer has been defined in S.3(c) of the Interpretation Law, CAP 76, Laws of Bendel State, as applicable to Delta State. The section provides:-
“a public officer is every officer or department invested with or performing duties of a public nature.”
Still on the issue of definition, learned counsel suggested that the word “Person” in legal parlance includes both natural and artificial persons, such as corporations sole or public bodies. He submitted that “any person” in S.2 (a) of CAP 137 admits of artificial persons such as a corporation sole or public bodies. He submitted that” any person” in S. 2(a) of CAP 137 admits of artificial persons such as a corporation sole, company, or any persons corporate or incorporate such as the respondent herein. He supported this submission with the decisions in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 14 NWLR (PT. 584) 37 and ADIGUN V. AYINDE & 2 ORS. (1993) 8 NWLR (PT.313) 516 at 533. Furthermore, based on these 2 decisions, learned counsel suggested that the act of the respondent being complained by the appellant i.e. termination of his appointment, was done in pursuance of or execution of a public duty. He also added that the respondent is a statutory body established and provided under S.197 and part II of the 3rd Schedule to the 1999 Constitution. He referred to the duties of the respondent to include the appointment of persons to offices in the State Civil Service as well as to exercise disciplinary control over all such persons holding such offices. He explained that when the respondent sent a letter to the appellant terminating his appointment, it was performing a statutory duty.
While going into the circumstances and the nitty-gritty of this matter, learned counsel expressed the view that the termination of the appellant’s appointment gave rise to the cause of action. He maintained that the termination of appointment was effected precisely on 4th August, 2000.
According to learned counsel the appellant filed his action on 14th August, 2002, which to the day was more than 2 years since the cause of action arose. He then submitted that under S.2(a) of CAP 137, this suit ought to have been commenced within 3 months of the accrual of the cause of action. He added that the failure of the appellant to commence his suit within the stipulated period of 3 months rendered it out of time and therefore statute barred. This also, in the opinion of learned counsel, renders the cause of action unenforceable since the right of action has been extinguished by statute. He referred to IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra), OGOJA LOCAL GOVERNMENT COUNCIL V. of FOBOCHE (1996) 7 NWLR (PT. 458) 48, OLAOSEBIKAN V. WILLIAMS (1996) 5 NWLR (PT.449) 437 and SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT.179) 379.
In the opinion of learned counsel, although CAP 137 is a law to protect public officers, the term “public officer” has by law been extended to include a public department. He submitted that the respondent qualifies as a public officer because it is a statutory body established by the 1999 Constitution. He added that the respondent being a corporation aggregate and a legal personality capable of suing or being sued, ought to have been sued within 3 months in the circumstance of this case.
Learned counsel referred to the main argument of learned counsel to the appellant, Mr. Kanu, in his reference to the definition of a public officer under the 1999 Constitution in the 5th Schedule and submitted that the definition relied on by Mr. Kanu was only as it related to the Code of Conduct for public officers and no more, and added further that such definition cannot be used outside the provisions of the 5th Schedule relating to Code of Conduct for public officers. He supported this submission with OKOMU OIL PALM CO. LTD. V. ISERHIENRHIEN (2001) FWLR (PT. 45) 670. Upon this submission also, learned counsel explained that although the rights of parties are decided on the basis of the law in existence or in force when a cause of action arose, the position of the law is that where there is a specific law in respect of a specific issue, such a law will apply irrespective of the general principle governing that issue. He added further that this matter was decided on the provisions of S.2(a) of CAP 137 and the learned trial judge was right in holding that the appellant’s action was statute-barred and he urged this court to so hold.
In conclusion, learned counsel urged us to dismiss this appeal and uphold the decision of the learned trial judge because he was right to hold that the appellant’s action was statute-barred and was also right in holding that the respondent was a public officer and the appellant’s action against it ought to have been commenced within 3 months from 4th August, 2000.
I have carefully read through the briefs of respective learned counsel and all the arguments and submissions therein. I have also read some of the decided cases, that I found helpful in deciding the sole issue for determination in this appeal. Of all the decisions, I must say that the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) appears to be most apposite and germane to solve the lone issue in this appeal. I also think that it is proper to at this stage disabuse the mind of learned counsel Mr. Kanu in his referring to the 5th Schedule to the 1999 Constitution only for the determination of t his appeal as it relates to limitation of time and protection of public officers under S.2 (a) of CAP 137. To say the least, learned counsel Mr. Kanu merely chose to be narrow minded and myopic. I say so because, learned counsel to the respondent had referred to IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) in the respondent’s brief and I thought that being the fulcrum upon which the case of the respondent was rested, Mr. Kanu should have read same and should have either filed a reply brief or attempted to have amended his appellant’s brief to reflect a semblance of respect on his own part to an important decision of the Supreme Court on IBRAHIM V. JUDICIAL SERVICE COMMITTEE. Not just that, learned counsel, Mr. Kanu was in court when learned counsel to the respondent, as defendant before the lower court, Mrs. Omatsone addressed the court and made copious references to the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE. Also noticeable is the fact that Mr. Kanu had also made a half hearted attempt to distinguish the decision in IBRAHIM V. JUDICIAL SERVICE COMMITTEE in his address before the lower court at page 55 of the record of appeal. In his judgment of 29th January, 2004, the learned trial judge made copious references to the decision of the Supreme Court in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (see pp. 92-97 of the record of appeal).
Now turning to the issue at hand, having said that I found the decision of the Supreme Court in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) as most apposite to the determination of this appeal, I wish to underscore the touchstone effect of that decision. The main issue that arose for determination by the Supreme Court in IBRAHIM (supra) was the meaning to be placed on the expression “any person” in S.2(a) of the Public Officers Protection Law CAP III Laws of Northern Nigeria applicable to Kaduna State. That section provides inter alia:
“2. 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 alleged neglect or default in the execution of any such law, duty or authority the following provisions shall have effect:
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
This provision is pari materia with S.2(a) of CAP 137. After reviewing earlier decisions and S.18(1) of the Interpretation Act, CAP 192 Laws of the Federation of Nigeria, the Supreme Court in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) held that though the Judicial Service Committee (JSC) of Kaduna State was a statutory body, it was a “person” within the meaning and purview of the Public Officers Protection Law of Northern Nigeria, applicable to Kaduna State. The Court also held that it was entitled to the protection on public officers contemplated by S.2(a). The court further held that the word “person” in the public officers protection law must not be read as meaning a person in a limited sense, that is as referring only to natural persons or human beings because to ascribe any limited meaning to the word 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, an exercise the courts are not permitted in law to indulge in.
At page 97 of the record of appeal, the learned trial judge decided that the cause of action in the instant case accrued on 4th August, 2000. In his oral evidence before the lower court at page 19 of the record of appeal, the plaintiff/appellant told the court that his appointment was terminated in August, 2000. The letter of termination of appointment, tendered in evidence as Exhibit J, is dated 4th August, 2000. There is no dispute whatsoever that this matter was commenced on 14th August, 2002. If the cause of action arose on 4th August, 2000, which I very strongly believe so, then the action was commenced over 2 years since the right to sue crystallized and matured. Every material fact in the pleadings upon which oral and documentary evidence were offered in support would tend to indicate that this action is caught by the time limitation stipulation provided under S.2(a) of CAP 137.
Time begins to run for purposes of limitation law from the date of the accrual of the cause of action. In other words, time begins to run when there is in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See FADARE V. ATTORNEY GENERAL, OYO STATE (1982) 4 SC 1.
The period of limitation of action is determined by looking at the writ of summons and statement of claim. This is to ascertain the date on which the wrong complained of, giving rise to the plaintiff’s claim, was committed or when the rights sought to be enforced accrued, and to compare that date with the date on which the writ of summons was taken out or filed.
If the date pleaded by the plaintiff in his writ of summons and statement of claim as when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is statute barred and is incompetent. See WOHEREM V. EMERUWA (2004) 13 NWLR (PT. 890) 398.
In paragraph 14 of the statement of claim dated 12th September, 2002, the plaintiff/appellant averred as follows:
“14. In August 2000, the defendant by a letter dated 4th August, 2000, Ref. No. AD/C.62/5/7 purportedly terminated the plaintiff s appointment and the said termination letter shall be relied upon.”
As pointed out earlier the writ of summons is dated 13th August, 2002 and filed on 14th August, 2002. At page 19 of the record of appeal the plaintiff/appellant testified thus:-
“In August, 2000 the defendant terminated my appointment.”
There was no averment in the entire statement of claim that the plaintiff/appellant suffered any continued injury neither was any date pleaded when any continued injury ceased. There was no oral or documentary evidence to show any continued injury. Section 2(a) of CAP 137 definitely becomes apposite and applicable. By this token the suit of the plaintiff palpably appears to have been caught up by limitation of time, thereby being statute-barred and incompetent. The learned trial judge was equally right to so find.
Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to sue to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had expired. In the instant case, the appellant, having failed to bring the action within 3 months after the termination of his appointment, as he must do by S.2(a) of the Public Officers Protection Law CAP 137, lost the right to make good his case through the courts as it became statute barred. The respondent is one of the executive bodies provided for the States in Section A Part II of the 3rd Schedule to the 1999 Constitution. Also provided under the 1999 Constitution as an executive body for a State is a Judicial Service Commission under Section C of part II in the 3rd Schedule. If the Judicial Service Committee of Kaduna State was held to be a person in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra), there is no impediment, in my view, why this protection should not be extended to an executive body like the Respondent in the instant case.
The Appellant lost his employment in the course of a reorganization in the Delta State Civil Service.
In IBRAHIM V. JUDICIAL SERVICE COMMITTEE the appellant was dismissed or retired as a disciplinary measure. Since that decision of the Supreme Court in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) the courts of this country have remained consistent in holding that agencies of Federal or State Governments are public officers entitled to the protection envisaged and contemplated under S. 2(a) of the Public Officers (Protection) Act/Laws. For example, in the case of C.B.N. V. UKPONG (2006) 13 NWLR (PT. 998) 555, the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE was cited and applied. In that case the Central Bank of Nigeria was held to be a person within the meaning of the Public Officers (Protection) Act CAP 379 LFN 1990 and the Public Officers Protection Law of Oyo State. Also, in the case of MBONU V. NIGERIAN MINING CORPORATION (2006) 13 NWLR (PT. 998) 659, the respondent, Nigerian Mining Corporation, was held to be a public officer entitled to the protection contemplated by S.2(a) of CAP 379 (supra).
The learned trial judge remarked and held at page 94 of the record of appeal that:-
“In view of the position of the law on this issue, the court is of the view that the issue of whether statutory bodies such as the defendant in this case is entitled to the protection of the public officers law is now settled … Having found that the defendant is a person within the meaning of S. 2(a) of the Public Officer Protection Law, the court is of the opinion that she is entitled to rely on the protection offered by that section.”
I decided to re-echo this decision of the learned trial judge as a fulcrum upon which I would impose my earlier observation that the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE is the locus classicus on whether statutory bodies and government corporations are entitled to the protection envisaged under S.2(a) of the Public Officers Protection Act/Laws. The submissions and arguments of learned counsel to the appellant are utterly feeble and grossly unattractive. Based on the foregoing I hold that the learned trial judge was right in holding that the appellant’s action against the respondent was statute-barred and by virtue of S.2(a) of the Public Officers Protection Law CAP 137 (supra), applicable to Delta State. This action was commenced more than 2 years since the cause of action arose. The issue for determination is therefore answered in the affirmative. This appeal is unmeritorious and it is thereby dismissed. I assess costs in favour of the Respondent in the sum of N5,000.
Other Citations: (2007)LCN/2236(CA)
