Gladstone a. Udo V. Civil Service Commission Akwa Ibom State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

S. A. IBIYEYE, J.C.A

The Plaintiff in the Uyo Judicial Division of the High Court of Justice of Akwa Ibom State initiated an action against the three defendants by way of an Originating Summons supported by a seven paragraph affidavit sworn to by one Gladstone A. Udoh filed on 14/1/2000 in which he sought the following reliefs:

“1. A Declaration that the 1st Defendant’s letter of 23rd October,1997 dismissing the Plaintiff from the service of the Defendants is illegal, unlawful, ultra vires the Defendants and accordingly incapable of determining the employment of the Plaintiff.

2. A Declaration that the dismissal of the Plaintiff from the service of the Defendants upon the “Report of Administrative Panel to Investigate Fraudulent Payments in Oron and Etinan Sub-Treasuries from the period 1995-1996″ is ultra vires the powers of the Defendants and accordingly null and void.
3. An order re-instating the Plaintiff in the employment of the Defendants together with all his entitlements and emolument of office.
4. An injunction restraining the Defendants by themselves, servants, agents or privies from dismissing the Plaintiff in the manner stated above.”

In the same initiating process the Plaintiff raised the following questions for determination by the lower Court:

“1. Whether the defendants and particularly the 1st defendant can lawfully dismiss the Plaintiff from the Defendants’ employment based on an Administrative Panel’s Report set up to investigate fraudulent payment.

2. Whether it was constitutionally within the powers of the Defendants to have dismissed the Plaintiff based on an Administrative Panel’s Report which pronounced a verdict of guilt on the Plaintiff.
3. Whether the Plaintiff has been legally and lawfully dismissed from the employment of the Defendants by virtue of the Administrative Panel’s Report set up to investigate alleged fraudulent activities against the Plaintiff.
4. If Questions 1 – 3 are answered in the negative whether this Honourable Court cannot make an order reinstating the plaintiff in the services of the Defendants together with all his entitlements.”

The defendants in reaction to the Originating Summons, jointly filed memorandum of appearance dated 26th January, 2000. They filed a sixteen paragraph Counter Affidavit sworn to on 23rd January, 2000.

Aside the Counter Affidavit, the defendants jointly filed another affidavit titled “AFFIDAVIT IN OPPOSITION” of twelve paragraphs.

At the hearing of the originating summons by which the instant case was initiated, the learned counsel for the plaintiff and the learned counsel for the three defendants proffered submissions and arguments in support of the averments in their respective affidavits. The learned trial judge considered the submissions and arguments and in a reserved judgment at pages 70 to 76 of the record of proceedings arrived, inter alia, at the following conclusion by virtue of statutory and judicial authorities.

“1. Section 2, Public Officers Protection Law of Cross River State Cap 93 Vol. V protects both natural and statutory persons like all the defendants, in the exercise of their official duties.

2. In this case all the defendants are covered by and protected by Section 2, Public Officers Protection Law, Cap 93 Vol. V Laws of Cross River State.
3. Whereas the cause of action in this suit arose on the 23rd of October, 1997 and in as much as the Plaintiff commenced this action on the 14th of January,2000, a duration of two years and two months from the cause of action and whereas by Section 2 (a) of the Public Officers Protection Law, Laws of Cross River State which was applicable in Akwa Ibom State in 2000, the Plaintiff had a limitation period of three months from the date of the cause of action within which to institute his action but failed to do so, I hold that this action is statute barred and therefore not maintainable in Law. Equity aids the vigilant and not the indolent.
4. I accordingly dismiss the Plaintiff’s case in its entirety…”

The Plaintiff was utterly dissatisfied with the judgment of the lower Court and he appealed to this Court on two grounds of appeal.

The Plaintiff now the appellant and the defendants now the respondents in strict compliance with rules 2 and 4 of Order 6 of Court of Appeal Rules 2002 filed and exchanged briefs of argument, including a Reply brief of argument subsequently filed by the appellant.

In the appellant’s brief of argument the following two issues were distilled therein:

“(i) Whether the learned trial Judge was right in holding that the Public Officers Protection Law of Cross River State (as applicable in Akwa Ibom State) covers all forms and manners of actions including actions founded in contract.

(ii) Whether the learned trial Judge was right in failing to consider whether the defendant can validly dismiss the plaintiff from Public Service on the grounds of fraud and/or criminal allegations without first of all subjecting the plaintiff to trial in a competent Court of law or alternatively Whether an Administrative Panel which was set up by the defendants can validly try the plaintiff for criminal offences itself not being a Court of Law.”

The defendants, on their part, adopted the two issues identified for the determination of this appeal by the appellant.

At the hearing of the appeal, the learned counsel for the appellant adopted and relied on the appellant’s brief of argument and the Reply brief. The two issues adumbrated by the appellant were adopted and relied upon by the respondent.

Neither the learned counsel for the appellant nor the learned counsel for the respondents proffered any argument in amplification of their respective parties’ briefs of argument. On Issue 1, the learned counsel for the appellant made copious submissions to sustain the said issue. Salient among those submissions shall be reproduced. Thus, the learned counsel pointed out that the relationship between the appellant and the respondents was founded in contract of employment. He argued that learned counsel for the respondents contended that, that relationship was covered by Section 2(a) of the Public Officers Protection Law (hereinafter referred as the law). He pointed out that the learned trial Judge agreed with the contention on behalf of the respondents when he (the learned trial Judge) relied on the Supreme Court case of ALHAJI ALIYU IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PART 584); (1998) 14 LRCN 5044. He argued that he is at a loss to see where Iguh, JSC in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (supra) said the law protects all forms and manners of action including actions founded on contracts. He further argued that there is a long line of cases in this country which decided that the shelter offered by Section 2 (a) of the Law or Act as the case may be does not include action founded in contract and referred to the cases of AMAO V. C. S. C. (1992) 7 NWLR (PART 252); J.S.C. & ANOR. V. ALAKA (1982) 8-10 CA 42 (BENIN DIVISION); 3 NWLR (PART 650) 644 AT 647. ALAPIKI V. GOVERNOR RIVER STATE (1991) 8 NWLR (PART 211) 575; OKEKE V. BABA (2000) 3 NWLR (Part 650) 644 at 647. The learned counsel submitted that the “public officer” is only protected by the Act or Law “for any act, default or negligence which occurs while discharging a public duty, authority or executing or intending to execute any law”. He contended that the respondents were therefore not entitled to the protection of Section 2(a) of the Law when they dismissed the appellant from their employ and the learned trial Judge was in error when he sustained the plea of the respondents that the appellant’s action was statute barred.

In reply to the submissions of the learned counsel for the appellant as regards the applicability of Section 2(a) of the Law as a shield for the respondents, the learned counsel for the respondents submitted that the Law covers all forms and manners of actions including actions founded on contract and he relied on the case of ALHAJI IBRAHIM v. JUDICIAL SERVICE COMMITTEE (supra). He further submitted that the appellants are entitled to be protected by the law as the appellant’s rights had been extinguished having instituted the suit in point on 14th day of January, 2000 whereas the cause of action arose on the 23rd day of October, 1997, that is to say a period of about two years and two months. He equally submitted that “any person” as used in the Law admits and includes artificial persons such as corporation sole, company or any body or persons corporate or incorporate such as the respondents in this case. He expatiated that Section 2(a) of the Law is a limitation law and where a statute or law provides for the institution of an action within a prescribed period proceedings shall not be properly instituted after the time so prescribed. 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 action would have been extinguished.

The gravamen of Issue 1 is whether the provisions of the Law (supra) covers all forms and manners of actions including action founded in contract. In other words, does the limitation law of Akwa Ibom State apply to any action founded in contract?

Before answering this question, it is pertinent to consider if the several averments deposed to in the affidavits in support and in opposition to the initiating process which is the Originating Summons in which certain reliefs were sought are sufficient enough to sustain the reliefs sought by the appellant.

I am of the view that paragraphs 1, 2, 4, 5 and 6 of the Originating Summons are of moment and they read:

“1. That I am the plaintiff herein.

2. That I was employed by the 1st defendant on 18/5/89 as Accountant lion a salary Grade Level 08 (Step 4) and subsequently posted to the services of the 2nd defendant.
3. That sometime in 1997, the Government of Akwa Ibom State set up an Administrative Panel to study the Report of Investigation into fraudulent payments in Oron and Etinan Sub-Treasuries for the period 1995/96 and to come up with appropriate recommendations.
4. That the Panel in its report submitted to Government found me guilty of making unauthorized payments, recommended a surcharge and dismissal from service. A copy of the Panel’s Report is attached as Exhibit ‘A’.
5. That the Government in its White Paper accepted the Panel’s recommendation and I was surcharged and also dismissed from service. The Government White Paper is attached as Exhibit “B’ while the dismissal is contained in Exhibit ‘C’…”

(Underlining mine for emphasis).

Exhibit “C’ referred to paragraph 6 (supra) read in material particulars as follows:

“GOVERNMENT OF AKWA IBOM STATE OF NIGERIA”

Mr. Gladstone Udo Civil Service Commission

(Accountant 1) Secretarial Complex

U.F.S. The Ag. Accountant General, Block 3 (3rd Floor)

Ministry of Finance P.M.B.1080

Uyo. Uyo.

23rd October, 1997.

DISMISSAL FROM SERVICE

1. …………………………………………………………..
2. Accordingly, you are hereby dismissed from Akwa Ibom State Civil Service with effect from 2nd October, 1997 in the public interest. In addition, Government has also decided that you be surcharged the sum of N981 ,875 (Nine Hundred and Eighty-One Thousand, Eight Hundred and Seventy-Five Naira) for the part you played in the loss suffered by Government. You are by this letter advised to handover all Government property currently in your possession to your Head of Department for custody and necessary inventory taking.
3. …………………………………………………………….

…………………………………………………………….

…………………………………………………………….

Barr. Atim E. Ekpo (Mrs)

Director-General.

for. CHAIRMAN.”

Paragraphs 6, 7, 8, 10 and 11 of the respondents’ titled..” AFFIDAVIT IN OPPOSITION” which appertain to the nature of offence committed and limitation of time read:

“6. That paragraph 5 is false, the Panel did not find the Plaintiff guilty, but the Plaintiff admitted before the Task Force on Recovery of Public Property that he made unauthorized payments to various people.

7 That paragraph 6 is false but the Defendants inform me and I verily believe them that making of unauthorised payments or playing part by their servants in such a transaction is regarded as serious or gross misconduct. (sic)

8. That our counsel, Elder A. Ekereke-Udo informs me and I verily believe him that at the hearing of this case, he will raise issues of law and will urge the Court to dismiss the action for incompetence.
9. That the Defendants inform me and I verily believe them that when the plaintiff was interviewed on the issue of making unauthorized payments, the Plaintiff admitted having committed the offence which is viewed seriously by the Defendants.
10. That counsel informs me and I verily believe him that the Plaintiff slept for too long over whatever right he might have had since he did not take steps to challenge the Defendants’ action which took place in 1997.
11. That the Administrative Panel set up to investigate fraudulent payment in Oron and Etinan Sub-Treasuries for the period 1995-1996 did not pronounce a verdict of guilt on the Plaintiff.”

The purport of the foregoing extracts from the different affidavits is that the appellant was dismissed from the respondents’ employ on 23rd October, 1997. The basis of dismissal was as per the report of an Administrative Panel set up by the Akwa Ibom State Government to investigate and report on alleged fraudulent payments made by the appellant in particular. It is also apparent from those averments that the appellant was an employee in the service of Akwa Ibom State. The relationship between the appellant and the 1st respondent can best be described as contract of employment.

It is apparent from the copious submissions of the learned counsel in this appeal that it is common ground that limitation of action is relevant but the contention of the appellant is that the Law which is a limitation law does not apply to any action founded on contract.

I have observed from the state of the record of appeal at its page 1 that the appellant filed his Originating Summons on 14th January, 2000.

It is pertinent to consider the Law which is mutually agreed by the appellant and the respondents as relevant to the resolution of Issue 1. Section 2(a) of the law is no doubt relevant to the live issue of this appeal. It reads:

“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any law or 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:

…………………………………………………………….

…………………………………………………………….

(Underlining mine for emphasis)

I am of the strong view that it is the interpretation of the above section of the Law that calls for decision in this appeal. I have considered the myriads of authorities referred to and relied upon for the resolution of Issue 1 by the learned counsel and I am of strong opinion that the opinions of the Supreme Court in the case of IBRAHIM v. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR. (1998) 12 SCNJ 255 are comprehensive enough and of material moment to the instant issue. At pages 272 and 273, Iguh, JSC, held inter alia –

“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 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 action prosecution or proceedings shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of or in the exercise of a continuance of damage or injury within three months next after the ceasing thereof. There is a proviso to Section 2(a) of this enactment. With this proviso this appeal is not now concerned. It suffices to state that a statute of limitation such as the Public Officer (Protection) Law…removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this 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 learned Justice of the Supreme Court further stated:

“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 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) 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 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 an alleged neglect or default in the execution of any such law, duty or authority.”

See JOHN EKEOGU v. ELIZABETH ALIRI (1990) NWLR (Part 126) 345. It can therefore be said that Section 2(a) of the Public Officer (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. Where, however, he acted within the colour of his office, he can only lose protection of the Limitation Law if he sued within three months of the act, neglect or default complained thereof. See NWANKWERE v. ADEWUNMI (1967) NMLR 45 at 49; ATIYAYE v. PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT, BORNO STATE (1990) 1 NWLR (Part 129); JOHN EKEOGU v. ELIZABETH ALIRI (supra).”

From the state of the record and submissions of the learned counsel for the appellant and the respondents, the appellant does not seem to have any qualms against the status of the respondents as public officers within the meaning of the law, nor did they step outside the colour of their offices in the performance of their official duties. The grievance of the appellant in the instant appeal is that actions founded on contracts in which public officers are involved are not within the confines or operation of the law. The appellant also appears not to take any offence at the calculation of over three months from the inception of the cause of his action on 23rd October, 1997 to the time of filing the action as culled from the record of appeal on the 14th January, 2001. The appellant’s counsel’s bone of contention is that Section 2(a) of the Law does not apply to any action founded on contract between him and the respondents. He went on to fault the reliance placed on the case of IBRAHIM v. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (supra) by the respondents’ counsel who argued that that Section 2(a) of the Law covers all forms and manners of actions including actions founded on contract. I agree with the observation of the learned counsel for the appellant that no such opinion is contained in that judgment. It will, however, serve the best interest of justice if a critical look is taken at Section 2 of the Law. The Section, at the risk of repetition reads:-

“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 Act or Law or any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect:

a) the action, provision 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 …”

(Underlining mine for emphasis).

The operative words in the foregoing provisions are “any action” and “the action”. The use of word “any” in relation to the contention of the appellant counsel is in my respectful opinion all embracing as far as litigations of whichever nature are concerned. Such litigations can be either civil or criminal in nature. The use of the word “any” does not admit any restriction unless it specifically states so in the wording of the provision. There is nothing in the reproduced provision to suggest that any special meaning should be given to it apart from its plain and ordinary meaning which is all embracing in the sense that the words any action could refer to any manner of initiating proceedings either in contracts, torts or matrimonial causes to mention but a few. All of them when used in any proceedings come under the generic term of “actions” and can aptly be referred to as any action. In these circumstances, I find it difficult to give any special meaning to the words “any action” in the Law other than their ordinary and plain meaning. This view is strengthened by the fact that in Section 2 of the Law, words such as prosecution, and proceedings which are synonymous to action were part of this provision. It is also apparent that this provision contains the actual limitation period. I therefore find it unconscionable to exclude any action founded on contract from the operation of Section 2(a) of the Law.

It is not in doubt that the appellant instituted the instant action which is on contract very well beyond the three months prescriptive period for venting his grievance in the Eket Judicial Division of the Akwa Ibom State High Court of Justice. The law is settled 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 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. It is also trite that a statute of limitation such as the Law (supra) removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred. See IBRAHIM v. JUDICIAL SERVICE COMMITTEE & ANOR (supra) at page 272; MICHAEL OBIEFUNA v. ALEXANDER OKOYE (supra); FRED EGBE v. ADEFARASIN (supra); FADARE v. ATTORNEY-GENERAL, OYO STATE. In the instant case, the action of the appellant is caught by Section 2(a) of the Law and it is accordingly statute barred. In effect, his right of action is totally barred and/or extinguished. In these circumstances, Issue 1 is resolved against the appellant.

In view of the foregoing decision that the appellant’s action is now bare and empty or better still extinguished, it will, in my view, amount to an academic or idle exercise to consider Issue 2 because there is no longer any basis for doing so as it will serve no useful purpose.

I am not oblivious to the general rule that it is now settled that an appellate Court has a duty to consider all the issues placed before it. But where it is of the view that a consideration of one issue is enough to dispose of the appeal, as it is in this appeal, it is not under any obligation to consider all other issues raised for deliberation. Such failure will not in any way occasion a miscarriage of justice. See ANYADUBA v. N.R.T.C. LTD (1992) 5 NWLR (part 243) 535 at 561; OKONJI v. NJOKANMA (1991) 7 NWLR (Part 202) 131; 7UP BOTTLING CO. & ORS. v. ABIOLA & SONS BOTTLING CO. LTD (2001) 13 NWLR (Part 730) 469 at 493/494 514 and 516.In the final analysis there is no merit in this appeal and it is dismissed. The decision of Court below is affirmed.

Costs are assessed at N10,000.00 to the respondents against the appellant.

---

Other Citations: (2006)LCN/1982(CA)