Mr. A. O. Awokunle V. National Electric Power Authority [NEPA] (2007)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The Appellant was an employee of the Respondent until he was retired on the 16th of March 1992 for rejecting an offer of appointment as Officer III (Accts).
Upon retirement he collected his pension at the Ibadan District Office until May 1999 when he was directed to be collecting his pension at Oyo Town, which he complied with. In January 1999, the Federal Government announced a 150% pension increment for pensioners and the Respondent implemented the increment for all its retirees from July – December 2000.
The Appellant was paid for the month of July and August at the Ibadan District Office and was told to collect the balance at the Oyo District Office.
The Appellant however complained to the Respondent in a letter dated 17th April 2002 that he was not paid for the months of September – November and the Respondent replied him in a letter dated 15th May 2002, which reads –
“I hereby acknowledge the receipt of your letter–and wish to inform you that the District Management is not owing you any pension arrears since all your entitlements had been fully settled as shown in the pension Payment Voucher of February 2001. It was stated in your letter that you had earlier collected two months arrears of four months at Oyo as reflected in the Payment Voucher for the month of February 2001, it is clear that the District Management is not owing you. With the above in mind, I would want you to desist further from peddling false stories against the District Management as Management would not hesitate to ask Corporate Headquarters to change your Pay Point to another District should this act of yours persist”.
Almost two years later, the Appellant through his counsel wrote a Demand Letter dated 14th April 2004 to the Respondent; the last part of which reads –
“On the instructions of our client, we are hereby by this letter demanding the immediate payment to our client the unpaid 150% pension increase for the months of September, October, and November 2000 which by our client’s calculation total Seventy Thousand, Two Hundred Naira (N70, 000.00). Take notice that in the event of your failure to comply with this demand, this letter serves to give you notice of the intention of our client to institute legal actions against Your Authority on the subject matter”.
On the 29th of June 2004, the Appellant carried out his threat and instituted an action against the Respondent at the Oshogbo Judicial Division of the Federal High Court, which was subsequently transferred to the Ibadan Judicial Division of the same Court on the Orders of the Federal High Court, Oshogbo.
After pleadings were filed and exchanged at Federal High Court, Ibadan, and the matter set down for hearing, the Respondent filed a Motion on Notice dated 25th day of April 2005, praying the Federal High Court for the following-
(i) An Order of the Honourable Court setting aside/striking out the Plaintiff’s Suit as being grossly incompetent and abuse of Court process.
(ii) An Order of the Honourable Court striking out the Plaintiff’s Suit for lack of jurisdiction.
Grounds of this Application
(i) The suit is not properly instituted before this Court.
(ii) The action/suit against the Defendant is statute barred.
(iii) The action of the Plaintiff is barred by statute of limitation under the Public Officers Protection Act, Cap. 379 Laws of the Federation
(iv) The Plaintiff’s cause of action arose in May 15th 2002 and the Plaintiff brought his action in June 29th 2004.
The Application was supported by an 8-paragraph Affidavit wherein the deponent averred as follows in paragraphs 4 (f) – (H) & 5 (a) – (b)-
- That Engineer A. Hamzat, the Distribution Manager, National Electric Power Authority [NEPA], Oyo Station in Oyo State told me in our office on 3/3/2005 at about 10.00am and I verily believe him as follows –
(f) That the last communication between the Plaintiff and the Defendant was the letter dated 15/5/2002 wherein the Defendant denied the alleged Plaintiff outstanding payment of pension. A copy of the letter is attached – – as Exhibit ‘A’.
(g) That there was no further communication between the parties apart from Exhibit ‘A’, above and the Defendant thought the matter is settled until 14/4/2004 when the Defendant received another letter from the Plaintiff, a period of about 2 years. A copy of the letter dated 14/4/2004 is attached – – as Exhibit ‘B’.
(h) That I know as a fact that the Plaintiff has not institute (sic) any case against the Defendant in respect of this claim in any Court of law since May 2002 until this present case which was filed on 29/6/2004.
- That Chief Olasupo Ashaolu, the Principal Counsel in Olasupo Ashaolu & Co. told me in our office on 3/3/2005 at about 4p.m. and I verily believe him as follows –
(a) That the suit of the Plaintiff was not commenced within 3 months after Exhibit ‘A’ above.
(b) That as a matter of facts the Plaintiff action cannot be maintained before the Court.
In response, the Respondent himself filed an 8-paragraph Counter-Affidavit wherein he averred as follows in paragraphs 4 to 7 –
- That the injury or damages suffered by me in this matter is a continuing damage or injury for my unpaid 150% pension increase that
I am continually been deprived of by the Plaintiffs (sic) in this Suit.
- That the Plaintiffs (sic) had already paid part of the 150% pension benefit before the institution of this Suit and the balance is what they are now denying me of continuously up till date.
- That as long as the debt has been partly admitted and paid, and the injury I suffered is a continuous one depriving me of my pension benefit, I can institute and maintain this action as presently constituted.
- That this Application is misconceived and should be dismissed with cost.
The Application was argued on the 14th of June 2005, and in his Ruling delivered on the 29th of July 2005, the learned trial Judge, Molokwu, J., did not accept that the Application was misconceived, and held as follows –
“To my mind, since the Defendant had already declared its stand on the matter, that it was not owing the Plaintiff the said pension increment, it is at that point, the cause of action arose. It cannot therefore be continuous. – – The effluxion of time when the action was instituted, had stripped him of the right, to enforce the cause by judicial process, because it had become statute barred. The limitation period prescribed for the action having expired, the action is not properly instituted. Accordingly, it has to be struck out. That being the situation, this action is not properly placed before this Court. It therefore lacks the jurisdiction to entertain the same. For this reason, the Plaintiff’s action is hereby struck out”.
Dissatisfied, the Appellant filed a Notice of Appeal containing one Ground of Appeal, and in the Appellant’s brief prepared by Joseph Nwobike, Esq., it was submitted that the Issue arising for determination in this appeal is as follows-
“Whether or not the learned trial Judge was right in striking out this Suit on the ground that it was statute barred under Section 2(a) of the Public Officers (Protection) Act, Cap. 379, LFN 1990”.
The Respondent however submitted in its brief settled by Titus O. Ashaolu, SAN, that the sole Issue for Determination is as follows –
“Whether or not the Respondent being a creation of Statute and a corporate body (artificial person) is subject to the provision of Section 2 (a) of the Public Officers Protection Act CAP.379, LFN 1990”.
In my view, there is not much difference between the Issues formulated by both parties; they both raise the same question – whether the Respondent herein is a “public officer” within the meaning of Section 2 (a) of the Public Officers Protection Act (hereinafter referred to as the Act), which 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 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 ceasing thereof”. (Italics mine)
The Appellant’ position is that the Act is not applicable to this case and should not have been applied in the first place. It was submitted that until 1998, the state of the law had been that the protection provided under Section 2 (a) of the Act is not available to institutions but to public officers as individuals, citing Momoh V. Okewale (1977) 6.5C 181, Agboola V. Salibu (1991) 2 NWLR (pt 175) 566, FGN V. Zebra Energy Ltd. (2002) FWLR (pt. 92) 1749; however, that in Ibrahim V. J.S.C. Kaduna State (1998) 12 5C 20, the Supreme Court overruled all its former decisions and held that the said Section 2(a) can in appropriate circumstances avail a public institution; and that the question to be decided in this appeal is whether the Respondent is a public body within the con of the decision in Ibrahim VS. J.S.C. Kaduna State (supra) to be availed of the protection provided for under the Act. It is the Appellant’s contention that since officers of the Respondent do not form part of the public services of the Federation and/or State, the Respondent is not a public body to enjoy the protection under Section 2(a) of the Act, citing N.E.P.A V. Olagunju & Anor (2005) 3 NWLR (pt. 913) 602, wherein, it was submitted that in allowing the appeal, this Court per Omage, JCA held that protection under Section 2 (a) of the Act cannot avail the Respondent.
On its part, the Respondent submitted that the scope of the applicability of Section 2 (a) of the Act covers both natural persons and legal persons (artificial persons), and the protection therein could be enjoyed by Corporate bodies created by Statute like the Respondent herein, citing CBN V. Adedeji & 10 ors (2004) 13 NWLR (pt. 890) 226 & Ibrahim vs. J.S.C. Kaduna State (supra). It was further submitted that the Respondent, being a creation of a Statute, which renders direct services to the members of the public, is a public body within the meaning of Section 2 (a) of the Act; that the Appellant’s attempt to give a “restrictive interpretation” to the words “public officer” in the said Section runs contrary to the application of the Act; and that the cause of action in this case arose on 15th May, 2002, and the fact that the Writ of Summons was issued on the 29th of June 2004, 2 years after the cause of action arose, entitles the Respondent to avail themselves of the provision of Section 2 (a) of the Act, citing Christian I Yare V. National Salaries, Income and Wages Commission (2006)2 NWLR (pt 965) 548.
It was further submitted that the ratio of the lead Judgment in NEPA V. Olagunju (supra), was based on Section 2 (a) of the Act, and the Court allowed the appeal because the action was statute barred, thus the said Judgment weighs heavily in favour of the Respondent in this case and this Court was urged to so hold. It was further argued that the Appellant relied heavily on the minority/dissenting Judgment of Omage, JCA NEPA v. Olagunju (supra); that in that case, the lead Judgment was delivered by Ibiyeye, JCA, and agreed to by Okunola, JCA, to the effect that Section 2 (a) of the Act can avail NEPA, therefore the Judgment of Omage JCA is a dissenting/minority judgment that cannot be relied upon by the Appellant, citing Osagiede Ojo v. Dr. Gharoro (2006) 25 N5CQR 712, Bamaiyi v. The State & 4 ors (2001) 6 (Pt. 1) NSCQR 156. Furthermore, that Court of similar or concurrent jurisdiction are not bound to follow the decision of each other, thus the minority/dissenting decision of Omage, JCA, in NEPA v. Olagunju (supra), is not mandatory on this Court, citing Olutola v.University of Ilorin (2004) 20 NSCQR 256, This Court was therefore urged to uphold the decision of the lower Court to the effect that it’s jurisdiction was ousted by the provisions of Section 2 (a) of the Act, and dismiss the appeal.
The Appellant filed a Reply brief, but at the hearing of the Appeal, learned senior counsel for the Respondent, Mr. Titus O. Ashaolu, SAN, urged this Court to discountenance it because it does not correspond with the Respondent’s Brief as enjoined by Order 6 rule 5 of the Court of Appeal Rules, which allows the Appellant to file “a reply brief which shall deal with all new points arising from the Respondent’s brief”. I have gone through the Reply Brief and I do not see any merit to learned senior counsel’s line of objection.
The Respondent had argued in its brief that the minority/dissenting Judgment of Omage, JCA, in NEPA v. Olagunju (supra) is not mandatory on this Court, and the Appellant submitted in the Reply Brief that said Judgment of Omage, JCA, is not a dissenting Judgment but a concurring Judgment and this Court is ordinarily bound by it except where there exists other conflicting authorities on the subject, and he argued that there is none. I must also add that even if the Reply brief is discountenanced, this appeal cannot be determined without looking into the question of whether the Judgment of Omage, JCA, in NEPA v. Olagunju (supra) is a dissenting Judgment or not.
To start with, it is well settled that a dissenting Judgment, however powerful, learned and articulate, is not the Judgment of the Court; the Judgment of the Court is the majority Judgment, which is the binding Judgment – see Orugbo V. Una (2002) 16 NWLR (pt. 792) 175 SC, Daggash V. Bulama (2004) 14 NWLR Pt. 892) 144 & FGN V. Zebra Energy Ltd. (2002) 18 NWLR (pt. 798) 162 SC where Mohammed, JSC stated as follows @ 196 –
“I am not unmindful of the Judgment of Ogundare, JSC, in Ibrahim’s case [I.e. Ibrahim vs. J.S.C. Kaduna State [supra], wherein he considered the applicability of contract cases to the privilege provided in the Act. But that is a dissenting Judgment and although well founded, is not the binding decision on the issue” (Italics mine). It is also well established that there is a distinction between a ratio decidendi and obiter dictum. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory. Obiter dictum reflects, inter alia, the opinions of the Judge, which do not embody the resolutions of the Court. The expression of a Judge in a Judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and answers to those issues – see A.I.C. Ltd. V. NNPC (2005) 1 NWLR (937) 563 SC.
In NEPA v. Olagunju (supra), this Court had to determine whether the trial Court was right to consider the merit of the case when the Respondents sued more than three months after the Appellant dismissed them from its service.
This Court considered the provisions of the same Section 2 (a) of the Public Officers (Protection) Act Cap. 379 LFN 1990, as in this case and in allowing the appeal, Ibiyeye, JCA, who read the leading Judgment, stated as follows –
“In the instant case, both Statement of Claim – – and Writ of Summons respectively show that the cause of action arose on 14/3/97 when the Appellants were dismissed and the Respondents filed action against the alleged wrong as per the Writ of Summons dated 9(9/99. Simple computation of time between those two dates is a period of about two and half years, which is a distant cry from the three months within which the Respondents ought to have instituted action against the Appellant for ten alleged wrong. They failed to do so.
He then concluded as follows @ p. 627 –
”_ _ The trial court lacked the jurisdiction to go into the merit of the instant case when it was faced with naked averments that the Respondent’s action was brought about thirty months after the cause of action arose. The trial of the instant case in those circumstances were a nullity and liable to be struck out”. (Italics mine) Okunola, JCA agreed with the lead Judgment and allowed the appeal for the reasons so stated therein. In his Judgment, Omage, JCA, stated as follows –
“It is expedient to deal with the question whether the Defendant can employ the defence contained in Section 2(a) of the said Act. It is a fact which the Appellant must prove before he can rely on it. In his written address, the Defendant merely stated that the Defendant is a creation of statute. Unless the public corporation is specifically proved to be a public office affected by the provisions of Section 2 (a) it is not every corporate body created by statute that can claim to be entitled to the benefit of the provisions of Public Officers Protection Act. The Defendant in this appeal is NEPA, it is a corporation created by enactment of the parliament to serve the public. It is a business concern. Its staff is not public officers; and they are not entitled to the protection of the provisions of the Public Officers Protection Act Section 2 (a) _ -. The Defendant not being able to avail itself of the provision of Section 2 (a) of the – – Act can be sued after three months; and the action of the Plaintiff instituted nearly two years after the course of action arose is properly made’; (Italics mine)
Obviously, the Judgments of Ibiyeye, JCA and Okunola, JCA that the trial at the lower Court was a nullity because the Respondent’s action was brought about thirty months after the cause of action arose is the majority Judgment in NEPA v. Olagunju (supra), and that of Omage, JCA, to the contrary on this issue is a mere obiter dictum, which is not binding on this Court.
Be that as it may, the Respondent also submitted that the aim of paragraphs (q), (r) and (5) of sub-section 1 of Section 251 of the 1999 Constitution is to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party, therefore NEPA being an agent of Federal Government of Nigeria can enjoy the provision of Section 2 (a) of the Act. This Court was referred to the case of NEPA V. Edegbero 12 SCNJ 173, where the Supreme Court per Ogundare, JSC held as follows _
”It is not in dispute that the Defendant – NEPA is a Federal Government Agency, the two Courts below made a finding of fact to this effect and this has not been challenged by the Plaintiffs. It is also not disputed that the cause of action in this matter arose out of the administrative action or decision of the Defendant. – – – – It would appear on the surface, therefore, that the action would be one within the exclusive jurisdiction of the Federal High Court. (Italics mine)
I agree with the Respondents; particularly when the decision of the Supreme Court in NEPA V. Edegbero (supra) is measured alongside its decision in Federal Mortgage Bank of Nigeria V. Ollor (2002) 9 NWLR (pt773) 475, where the Supreme Court held that there was nothing in the Federal Mortgage Bank Act, which suggests that the Bank is an agency of the Federal Government, and even though the Bank was created by an Act of the National Assembly, it was no more than a business establishment given functions to perform; and neither of those functions nor the Bank itself had any connection with the affairs or the running of the Federal Government.
NEPA is in the same category as NNPC & NITEL; they are “organs established by law through which the Federal Government carries out its functions” – See University of Abuja V. Ologe (1996) 4 NWLR (pt 445) 705. Consequently,
I agree with the Respondent that the lower Court was right. The end result is that the appeal lacks merit and is hereby dismissed. No order as to Costs.
Other Citations: (2007)LCN/2349(CA)
