Gyang V. National Steel Council (Metalurgical Research Tests Division) Jos & Anor (2002)
LawGlobal-Hub Lead Judgment Report
T.MUHAMMAD, J.C.A.
The plaintiff was an employee of the 1st respondent which was a body corporate. Plaintiff claimed to have been employed by the Nigerian Steel Development Authority as a driver/mechanic in July, 1973. His appointment was confirmed vide letter Ref. No. SP/642/23 of 26th August, 1977, with effect from 1st day of July, 1974. He was therefore entitled to all rights conferred on him as a permanent employee of the 1st defendant. Such rights included security against wanton termination, dismissal or retirement from service. The last position held by the plaintiff was that of a Chief Motor Driver/Mechanic. Plaintiff’s appointment was determined by the 1st defendant by retiring him compulsorily for malingering, unproductiveness and redundancy. Plaintiff averred further that such allegations were never formally brought to his notice and was never afforded any chance to answer same.
Aggrieved by the 1st defendant’s action, plaintiff took a writ of summons from the Plateau State High Court holden at Jos (lower court) and endorsed the following claims:
“13. Wherefore the plaintiff claims from the defendants jointly and severally, the sum of:
(a) N13,334.20 as specific damages.
(b) N36,000.00 general damages for wrongful compulsory retirement.
(c) to be reinstated.
(d) all arrears of salary and entitlements until the date of judgment and posts.”
Pleadings were settled by the parties. In their amended statement of defence, the defendants denied plaintiff’s claim. Defendants raised a preliminary objection in their amended statement of defence. A counter-affidavit to the preliminary objection was filed by the plaintiff. The preliminary objection was heard and determined by the trial court. The learned trial Judge upheld the preliminary objection and dismissed the plaintiff’s claim.
Dissatisfied, the plaintiff filed his notice and a lone ground of appeal to the Court of Appeal.
In this court briefs were filed and exchanged by the parties after each had an order from the court extending time to do so. In his brief, learned counsel for the appellant formulated two issues:
“(i) Whether or not the provision of section 2(a) of Public Officers Protection Act (Cap. 168, Vol. V) Laws of the Federal Republic of Nigeria, 1958 (as amended) protects a public institution.
(ii) Whether or not the provision of section 2(a) of Public Officers Protection Act, Cap. 168, Vol. V. Laws of the Federal Republic of Nigeria, 1958 (as amended) is applicable to contractual relationship between an individual and an institution.”
In their joint briefs, the respondents adopted the issues formulated by appellant. Let me observe that the notice of appeal filed contained only one ground of appeal. There is no evidence in the record that additional ground(s) were later filed. This ground, without its particulars reads as follows:
“The learned trial Judge erred in law when he held that the suit of the plaintiff was statute-barred having regards to s. 2(a) of the Public Officers Protection Act, Cap. 168, Vol. V of Laws of the Federal Republic of Nigeria, 1958.”
By relating the above two issues to the ground of appeal, one can observe that learned counsel for the appellant was in a dilemma as a result of bad drafting of issues for consideration by this court. He should not have otherwise drafted two issues as shown above. It is also a pity that learned counsel for the respondents blindly adopted the issues formulated by the learned counsel for the appellant. It is the practice of this court as well as that of the Supreme Court that we do not condone proliferation of issues. The number of issues formulated must, in no circumstance, exceed the number of grounds of appeal set out in the notice of appeal or as may be added by leave of court granted to the appellant. See Owners (Home Savings & Loans) (Nig.) Ltd. v. Tojuomo (Nig.) Ltd. (1998) 5 NWLR (Pt. 549) 326; Mechanic v. Onisesin (1998) 2 NWLR (pt. 538) 446; Sale v. Yahaya (1998) 4 NWLR (Pt. 546) 462. Be that as it may, the inelegance of brief of argument cannot prevent this court to do justice to the matter placed before it. See Obaloja v. Etikan (1998) 6 NWLR (Pt. 553) 320; Okolo v. U.B.N. Ltd. (1998) 2 NWLR (Pt. 539) 618. In the circumstance, I shall merge the two issues into one and treat it as such. The two issues now congeal into the following:
“Whether or not the provision of section 2(a) of the Public Officers Protection Act (Cap. 168) Vol. V., Laws of the Federal Republic of Nigeria (as amended) applies to a public institution in its contractual relation with an individual”.
In his argument on the issue, learned counsel for the appellant submitted that section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation, 1958 (as amended) (the Act) is only applicable to individuals and not an institution. He cites and relies on some authorities including Tafida v. Abubakar (1992) 2 NWLR (Pt. 230) 51. Learned counsel argued further that the lower court was wrong to have dismissed the plaintiff’s case as being statute-barred as the claim was predicated upon contractual relationship. The time limit for the commencement of such an action is 6 years from the date of the wrong. He cited the Limitation Act, 1874; Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar SPA (1974) 12 SC 81 at 99. Learned counsel further stated that the action was filed on 26/1/87 whereas the plaintiff/appellant’s service was terminated in October, 1984. This, he said, gave barely a period of 3 years from the date of termination, which is far less than the statutory 6 years. He urged this court to allow the appeal and set aside the lower court’s judgment and order for trial of the case at the High Court.
Learned counsel for the respondents started by quoting the provision of section 2(a) of the Public Officers Protection Act. He argued that the emphasis is not on the subject that is undertaken as an act but nature of the act that is performed by the subject. To that extent, he added, any person (whether public or private) requires the protection of the act provided the act was done by him is “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 any such act, law, duty or authority”.
Learned counsel for the respondents submitted further that the principles involved in the cases cited by the learned counsel for the appellant were misconceived by the learned counsel. He argued further that the 1st and the 2nd respondents were legal persons capable of suing or being sued under Nigerian law. The words “any person” contained in section 2 thereof, connote their plain, ordinary and natural meaning and covers any person or persons against whom any action is commenced for any act done in pursuance of any law, public duty or authority. Both respondents were sued in the discharge of their official duties i.e. compulsory retirement of the appellant by a letter dated 15/10/85. They were therefore covered by the Act. Learned counsel cited the case of Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1, (1998) 12 SCNJ p. 255 at p. 277 that S. 2(a) of the Act (supra) protects public institutions as well as individuals. It was submitted for the respondents that the present action being one arising from a contract of employment is covered by the provisions of section 2(a) of Public Officers Protection Act (supra). Argued further is that the Limitation Act, 1874 does not apply in the face of the provisions of the Public Officers Protection Act (supra) and the case of Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar SPA (supra) does not apply to the appeal on hand. Further, the appellant had no right of action for judicial relief as he instituted his suit outside the three months, statutory period allowed by the law. Learned counsel for the respondent urged this court to dismiss the appeal and uphold the lower court’s decision.
In treating this lone issue, I think my first port of call is the Public Officers Protection Act, 1958 (as amended). This is to enable me unearth the provision of section 2 (a) thereof which provides:
“2. Where any section, prosecution, or other prosecuting is commenced against any person for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such ordinance, law, duty or authority, the following 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:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison”.
It is pertinent to raise this question: who is a person in law? The Supreme Court in Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 36 (1998) 12 SCNJ 255, had this to say:
“The definition of the word “person” in the legal sense under the Nigerian law is not limited to natural persons or human being only. It clearly admits and includes artificial persons, corporation, sole company or anybody of persons corporate or incorporate.”
Thus, the word “any person” used in the section under reference contemplates of both natural and artificial persons. In Ibrahim s case (supra) the Supreme Court interpreted the words to mean “any person” as provided in section 2 of the Public Officers (protection) Law, Cap. III, Vol. 3, Laws of the Northern Nigeria, 1963, not limited only to natural persons or human beings or to persons sued in their personal names. Thus, unless contrary intention is indicated those words in the Public Officers protection law include persons known to Law, inclusive of artificial persons, public bodies or body of persons corporate or incorporate as well as statutory bodies of persons whether sued in their official titles or not so long as they are sued in respect of an act or acts done in pursuance or execution of any law or of any public duty, or authority. The provision of the Northern Nigeria Law referred to above in the Supreme Court quoted has the same effect, in my view, with the provision of section 2(a) of the Public Officers Act under reference. Therefore, a person intended by the Act, in my view, contemplates of both natural and artificial persons including the 1st and the 2nd respondents in this appeal. Cases cited by learned counsel for the appellant can in no way be of assistance to the case in hand. So the 2nd respondent enjoys the protection given by the Act and I so hold. As a result, it is clear that the Act removes the right of action from the appellant as his claim is caught up by the cobweb of section 2(a) of the Act.
On the issues of the nature of the claim and the period of limitation within which to file an action, it is clear that the claim was on contract of service under which the appellant’s appointment was determined by the respondents. Section 2(a) of the Act covers such types of actions. Secondly, the section stipulates a period within which to file such actions i.e. 3 months “next after the action”. In other words, 3 months after accrual of the action. It is clear from the record that cause of action in terminating appellant’s appointment by compulsory retirement from service vide letter Ref. No. PF/J/13/92 dated 15th day of October, 1984 accrued on the 15th day of October, 1984. Action on same was filed on 26/1/87. 1984 – 1987 covers a period of 3 years not months. So the appellant’s action is statute-barred and can hardly be salvaged.
Finally, the appeal lacks merit. It is hereby dismissed. I affirm the lower court’s decision. Each party in this appeal to bear own costs.
Other Citations: (2002)LCN/1085(CA)
