Mr. Philip Ikhanoba Aroyame V. The Governor Of Edo State & Anor (2007)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

The Appellant in this case who was the plaintiff in the lower court by Originating Summons claim as follows:-

“ORIGINATING SUMMONS

Let the 1st and 2nd defendants of Government House, Benin City, Edo State and ministry of Justice, Ezoti, Benin City, Edo state respectively in the Benin Judicial Division within Eight days after the service of this Summons on them, inclusive of the day of such service cause an appearance to be entered For them to this summons which is issued upon the application of Philip Ikhanoba Aroyame of 9, Emovon Street, Benin City For the determination of the following issues:

(a) A Declaration that the Plaintiff is entitled to continue with his service in the Edo State civil Service until he Attains the age of 60 and the unilateral act of the 1st Defendant to abridge the Plaintiff’s service years is a violation of Section 4(1) of the Pensions act Cap. 346 Laws of the Federal republic of Nigeria, 1990 and therefore ultra vires, unconstitutional, null and void and of no effect whatsoever.

(b) A Declaration that the 1st defendant’s letter number Ts.2.20 Dated 29th September, 2000 titled Disengagement from service and addressed to the Plaintiff purportedly abridging the Plaintiff’s service years without any cause whatsoever is ultra vires, unconstitutional, null and void and of no effect whatsoever.

An Order of this Honourable Court setting aside the said letter.

(c) An Order of this Honourable Court reinstating the Plaintiff as the Auditor-General, Local Government, Edo State until he attains the compulsory retirement age of 60 years.

(d) An Injunction restraining the 1st Defendant whether by himself, agents, servants or workmen howsoever from implementing in any manner whatsoever the aforementioned letter and interfering in any manner whatsoever with the Plaintiff’s career in the Edo State Civil Service without complying with the relevant laws of the federal Republic of Nigeria.”

The Originating Summons was supported by an affidavit in which the Plaintiff deposed as follows:

“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

Philip Ikhanoba Aroyame, Nigerian and Auditor General, Local Government Edo State of 9, Emovon Street, Owongban, Ikpoba Hill, Benin City, do hereby make oath and state as follows:

1. That I am the plaintiff in the aforementioned originating Summons.
2. That I was born on 31/12/1947 as indicated in the Senior Staff List of Bendel State herewith attached and marked As Exhibit “a”.
3. That I was appointed Executive Officer-Accounts on 1/11/1971 vide the mid Western State Public Service Commission letter herewith attached and marked as Exhibit “B”
4. That the said appointment eventually took effect from 1/11/1971 by virtue of the Gazette of the Mid Western State herewith attached and marked as “C”
5. That I continued service in the government of the Mid-Western State and later the defunct Bendel State and now Edo State until 4th March, 1999 when I was appointed the substantive Auditor General (Local Government) by virtue of letter number S.136/71 dated 4th March, 1999 attached herewith and marked as Exhibit “D”.
6. That the said appointment was published in the Edo State Gazette herewith attached and marked as Exhibit “E”.
7. That the Governor – in – Council, Edo State confirmed the said appointment on 18/12/1999 by virtue of a letter number SGA.13/28/1/91 dated 18/12/1999 herewith attached and Marked as “F”.
8. That I continued to discharge my duties as the Auditor General (Local Government) Edo State without any let or Hindrance until 28th September, 2000 when the 1st Defendant Instructed the secretary to the State Government to relieve Me of my duties.
9. That the letter from the Secretary to the State Government Purported removing me from office is herewith attached and Marked as Exhibit “G”.
10. That on 29/9/2000 the Secretary to the State Government on The instructions of the 1st Defendant issued me another letter retiring me from service which letter is herewith attached, and marked as Exhibit “H”.
11. That the office of Auditor-General (Local Government) of Edo State was existence before the enactment of the Constitution of the Federal Republic of Nigeria, 1999.
12. That I have not attained the age of 60 years and therefore cannot be forced into a premature retirement.
13. That unless the defendants are restrained by this Honourable Court, they will continue to prevent me from Continuing with my lawful duties as the Auditor- General (Local Government) of Edo State.
14. That the defendants will suffer no injury if I am reinstated As the Auditor-General (Local government) of Edo State.
15. That I am abiding civil servant of Edo State and citizen of Nigeria.
16. That it is the interest of justice that all existing laws of the Federal Republic of Nigeria and the Constitution are respected by the defendants.
17. That I make this solemn declaration conscientiously believing the same to be true and in accordance with The provision of the Oath Act”

To this supporting affidavit, the Respondents through their counsel filed a Counter-affidavit. The relevant parts are as follows:

“COUNTER AFFIDAVIT TO ORIGINATING SUMMONS FILED ON THE 3RD DAY OF APRIL, 2001 UPON THE APPLICATION ON BEHALF OF THE PLAINTIFF HEREIN

I, ERHAHON IGBINOSA, a Nigerian Citizen, Christian, State Counsel of the Ministry of Justice, D.P.P. Department, Benin City, hereby make oath and state as follows:

1. That I am the State Counsel assigned to defend this Suit No. B/210/2001.
2. That I have the authority of the 1st and 2nd Defendants to swear to this affidavit and to handle this Suit No.B/210/2001.
3. That as a result of paragraphs (1) and (2) above, I am conversant with the facts of this Suit No. B/210/2001.
4. That I have read the Original Summons and the affidavit in Support of the said Summons filed by the Plaintiff on the 3/4/2001.
5. That I have also perused all the documents annexed to the Affidavit and marked Exhibits A-H.
6. That the Plaintiff was until 29th September, 2000 under the Employment of the Edo State Government represented by the 1st and 2nd Defendants.
7. That by virtue of paragraph 6, the Plaintiff was a ‘Servant’ Called in its proper name “a Civil Servant” under the Employment of the Defendants.
8. That the 1st Defendant is the Chief executive Officer of the State.
9. That the 1st Defendant as the chief Executive officer of Edo State has the right to appoint and dismiss or retire any Officer through the Edo Civil Service Commission on Any of the Government apparatus via, the Secretary To the State Government who in turn uses the State Machinery thereto.
10. That the act of the 1st defendant was guided by the Constitution of the Federal Republic of Nigeria and therefore acted in trivires the Constitution.
11. That the 1st Defendant acted within the law and his Authority to have retired the plaintiff, the age of the Plaintiff not withstanding.
12. That the retirement was in good faith, and done within the law.
13. That the law did not specify the age of employee of the State Government to be affected by the act of the Government.
14. That the law specifies the category of Officers to be affected If the 1st Defendant desires to act by appointing, dismissing or retiring the officers that fails within the class of such Category wherein the plaintiff belongs.
15. That the Plaintiff was a Chief Executive of the Audit Department, (Local Government) of the Edo State and Therefore falls within the category of Officers that the Power to appoint or remove such officers by the 1st Defendant’s affect.
16. That no particular age is specified by law that the 1st Defendant must consider before appointing or removing or removing or retiring such officer under the Constitution of Federal Republic of Nigeria.
17. That this suit should be dismissed as it will work in Justice on the 1st and 2nd defendants if granted.
18. That the plaintiff has since stopped to function as Auditor-General (Local Government) Edo State.
19. That there is already a substantive Auditor-General (Local Government) Edo State and to reinstate the Plaintiff will work in Justice and will be an affront on public interest.
20. That the plaintiff is not dismissed from Public Service But retired and removed so that he can continue to enjoy his retirement within the law.”

The letters complained of are in two parts.

One is dated 28th September, 2000 headed “Disengagement from the Civil Service”. While the second letter is dated 29th September, 2000 also headed “Disengagement from the Civil Service”. The two letters are reproduced hereunder.

“GOVERNOR’S OFFICE OFFICE OF THE SECRETARY TO THE STATE GOVERNMENT

P.M.B.I081

BENIN CITY

EDO STATE OF NIGERIA

Your Ref.:

Our Ref: TS.2/22

Mr. O.1. Aaroyame

28th September, 2000

Disengagement from the Civil Service

I write to inform you that in exercise of the powers conferred on him by Section 208 of the 1999 Constitution of the Federal Republic of Nigeria, His Excellency, and the Executive Governor of Edo State, Chief Lucky Nosakhare Igbinedion has approved your removal from the Civil Service as Auditor-General (Local Government) with effect from 1st October, 2000.

2. You are expected to handover over all Government Property in your possession to the next most senior officer in Your Department.
3. His Excellency the Executive Governor has asked me to express his appreciation for working with him and wishes you all the best in your future endeavor.

SGD.

Prof. Patrick O. Erhabor

Secretary to the State Government”

“GOVERNOR’S OFFICE OFFICE OF THE SECRETARY TO THE STATE GOVERNMENT

P.M.B.1081

BENIN CITY

EDO STATE OF NIGERIA

Your Ref:

Our Ref: TA.2/20

Mr. P. I. Aroyame,

29th September, 2000

Disengagement from the Civil Service

I write to inform you that in exercise of the powers conferred on by Section 208 of the 1999 Constitution of the Federal Republic of Nigeria, the Executive Governor of Edo State Has approved your retirement from the State Civil Service as Auditor-General (Local Government) with effect from 30th September, 2000.

2. You are expected to handover all Government property in your possession to the next most senior office in your Department.
3. His Excellency, the Executive Governor has asked me to express his appreciation for working with him and wishes you all the best in your future endeavour.

SGD.

Prof. Patrick O. Erhabor

Secretary to the State Government.”

By a motion dated 20/1 0/03 the defendants in pursuant to Order 24 Rules 2 and 3 of the Bendel State High Court Civil Procedure Rules 1988 Applicable to Edo state prayed the Court for orders as follows:

“1. An order to set down for hearing the point of Law raised in paragraph 11 of the Defendant/Applicant Further Counter Affidavit to wit:-

“The Defendant shall before and/or during the hearing raised the point of law to wit that this suit is statute barred by virtue of the provisions of the Public Officer’s Protection Law, Law of Bendel State of Nigeria 1976 applicable in Edo State Of Nigeria and will urge the Court to dismiss The case on that ground.”

2. An order to dismiss the suit for being statute barred By virtue of the provisions of the Public officers Protection Law, Laws of Bendel State of Nigeria 1976 applicable in Edo State.
3. AND TAKE FURTHER NOTICE that the Defendants/Applicants will rely on the Originating Summons and Affidavit in Support of the Originating Summons in moving this application.” Arguments were taken on both sides and at the conclusion of arguments, the learned trial Judge Ehansele J on 27/5/04 delivered a considered judgment in which the concluding part reads. I quote:

“The import of this uncontroverted averment is that the defendants while carrying out the act which formed the basis of this action were public officers or persons engaged in the execution of public duties who at all material time acted within the confines of their public duty. There is no averment in the affidavit in support of the originating summons that the defendants stepped outside the bonds of their public authority or acted outside the colours of their office or outside their statutory or constituted duty.

That being so and considering the fact that the plaintiff filed his action against the 1st and 2nd Defendants who are public officers outside the 3 months period allowed by S.2 (a) of Public Officers protection law, Cap. 137, Laws of Defunct Bendel State applicable in Edo State, I hold that his action is caught by limitation law. The effect of this is that S.2 (a) of Public Officers Protection Law which avails the defendants has removed plaintiff’s right of action, the right of enforcement and the right of judicial relief and left him with a bare and empty cause of action which cannot be enforced.

In Udoh Trading Co. v. Abere (2001) 87 LRCN 1815, the Supreme Court per KALGO at page 1835 stated –

“.it appears to me therefore that if an action which is statute barred cannot be maintained, and cannot be properly and validly instituted, then it must be struck out as not being properly before the Court.”

Following the above, as the present action is statute Barred and cannot be properly being before this Court, It is hereby struck out.”

It is from that judgment that the appellant being dissatisfied appealed to the Court of Appeal.

The grounds of appeal read:

“Grounds of Appeal

(1) The learned trial Judge erred in law when he struck out the plaintiff’s Originating Summons on the ground that the reliefs therein were caught by the provisions of Public Officer’s Protection

Law, Cap. 137, Laws of Bendel State.

PARTICULARS OF ERROR

(a) The plaintiff’s was an employee of the Civil Service Commission of Edo State.

(b) The plaintiff could only be removed from Office by the Civil Service Commission of Edo State.

(c) Section 202 of the Constitution of the Federal Republic of Nigeria, 1999 prohibits the defendants from interfering with the appointment of the Plaintiff.

(d) The Plaintiff’s appointment was not terminated by the Civil Service Commission of Edo State.

(e) The Defendants’ conduct in terminating the appointment of the plaintiff was not in accordance with the provisions of any law.

(f) The conduct of the defendants in respect of the termination of the plaintiff’s appointment was not in accordance with the exercise of any authority known to law.

(g) The Public Officers protection Law of Bendel State is inapplicable in the instant case.

(2) Other grounds of appeal will be filed on receipt of the Record of proceedings.”

This notice was filed on 13/7/04. The appellant filed his brief of argument dated 12/5/05 and filed the same day and within time.

The respondents brief was filed out of time with the leave of Court.

At the hearing Chief Adogah for the appellant adopted his brief of argument and urged the Court to allow the appeal.

Learned Chief Legal Officer Mr. Akhidero for the respondents also adopted his brief of argument, relied on it and urged the Court that the appeal be dismissed.

In the appellant’s brief of argument, the only issue for determination in his view is “Whether the Public Officers Protection Law’” Cap. 137 Laws of Bendel State is applicable to the claims of the appellant.”

In his argument, he said the defendant can not claim to be Public officer as far as the 5th Schedule, Code of Conduct under the Constitution. He said the Court should not give an interpretation negating the intention of the provision of the Constitution. He relied on the case of IFEZUE V. LIVINUS MBADUGA & 1 OR. (1984) 5 SC 79 at 160.

He said the learned trial Judge was wrong in his conclusion. In the consideration of the Public Officers Protection Laws Cap. 137 of Bendel State, he says a Public Officer for the purpose of the Protection must be an employee of either the Public Service of the Federal Republic of Nigeria or the Public Service of a State. The Respondents he says are not employee of the Public Service. He said in case this Court holds a contrary view the law will not assist the defendants as they are not the “Civil Service Commission”. He said the Civil Service Commission which employed him did not remove him and therefore his removal can not stand. He relied on some authorities amongst which are NIG. PORTS AUTHORITY V. CONSTRUZIONI GENERALI FARSURAL LEGEFAR SPA & ANOR. (1974) 1 ALL NLR Part 2 463.

The Respondents in answer distilled one issue for determination as follows:

“Whether the cause of action of the appellant is statute barred by virtue of the provisions of the Public Officers Protection Law Cap 137 Laws of Bendel State applicable to Edo State.”

The Respondents argued that by virtue of Part 11 of the 5th Schedule to the Constitution of the Federal Republic of Nigeria 1999 the two Respondents are Public Officers. He also refer to Section 3 of the Interpretation Law Cap 16 Vol. 111 Laws of Bendel State 1976 applicable to Edo State a Public Officer defined as every officer invested with or performing duties of a public nature whether under the immediate control of the Governor of the State or not.

He argued that the test is not based on the Status of the Public Officer but on the function and authority citing ATIYAYE V. PERM SEC. BORNO STATE (1990) 1 NWLR Pt. 129 page 737.

He concluded that the Respondents are Public Officer and that the action of the Appellant is statute barred and the retirement of the appellant in valid in law.

I will now proceed with consideration of the issue that calls for decision in this appeal. The appellant issue for determination is whether the Public Officers Protection Law Cap 137 Laws of Bendel State is applicable to the claim of the appellant. For a person to claim under the provision of Section 2 of the Public Officers Protection Law of Bendel State, two conditions must be fulfilled.

(i) It must be established that the person against whom the action is concerned 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 concerned 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 or authority. See JOHN EKUAGU V. ELIZABETH ALIRI (1990) NWLR Pt. 126, 345.

It can therefore be said that, that section 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 confine of their public duties.

Where a Public officer acted within the colour of his office he can only loose protection of Limitation Law if he is sued within three months of the act, neglect or default complained of.

See NWAKERE V. ADEWUNMI (1967) NMLR 45 at 49

ATIYAYE V. PERM. SEC. MINISTRY OF LOCAL GOVERNMENT, BORNO STATE

EKEAGU V. ELIZABETH ALIRI (supra)

Having started on that premises one can now ask whether the defendants/respondents in this case are Public Officers or not. Part 11 of the fifth Schedule of the Constitution of the Federal Republic of Nigeria 1999 provides as follows –

Public Officers for the purpose of the Code of Conduct

“(1)

……………………………………………

……………………………………………

“4 Governor and Deputy Governors ……………………………………………

6. Attorney General of the Federation and Attorney-General of Each State.

10 Secretary to the Government of the Federation, Head of Service, Permanent Secretary, Directors General and all other persons in the Civil Service of the Federation and all other person in the Civil Service of the Federation or the State etc.”

By Section 3 of the Interpretation Law Cap 16 Vol. 111 Laws of Bendel State 1976 applicable to Edo State a Public Officer is defined as every officer invested with or performing duties of a public nature whether under the immediate control of the Governor of a State or not.

There is no doubt that the Governor through his secretary to the State government was performing a public duty or authority.

Section 208 of the Constitution of the Federal Republic of Nigeria 1999 provides as follows:-

“208(1) Power to appoint’ persons to hold or act in the office to which this section applies and to remove persons so appointed from any such office shall vest in the Governor of the State.

(2) The offices to which this section applies: are, namely-

(a) Secretary to the Government of the State;

(b) Head of the Civil Service of the State;

(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State however designated and,

(d) Any office on the personal staff of the Governor.

(3)An appointment to the office of the Head of the Civil Service of any State shall not be made except from among permanent Secretaries or equivalent rank in the civil service of any State or of the Federation.

(4) In exercising his powers of appointment under this Section “the Governor shall have regard, to the diversity of the People within the State and the need to promote national unity.

(5) Any appointment made pursuant paragraphs (a) and (d) of subsection (2) of this section shall cease at the pleasure, of the Governor and shall cease when the Governor ceases to hold office Provided that where a person his been appointed from a public service of the Federation or a State he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.”

From these provisions the appellant was the Chief Executive of the Local Government Audit Department and he holds office at the pleasure of the governor and the law gives the Governor the powers of appointment and removal. This is by the way because this aspect is not seriously in contention.

From this provision the appellant was the Chief Executive of the Local Government Audit Department and he holds office at the pleasure of the governor and the in Udoh Trading law gives the Governor the powers of appointment and removal. This is by the way because this aspect is not seriously in contention. From the foregoing it is obvious that the Respondents are Public officers performing public duties.

The trial Judge concluded as follows:

“Following the above as the present action is statute barred and can not be properly before this Court it is hereby struck out.”

Section 2 of the Public officers Protection Law Cap 137 Laws of the Bendel State of Nigeria 1976 applicable to Edo State provides as follows:

“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) that action, prosecution, or proceeding shall not tie 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”

The letters disengaging the appellant from service were issued on 28th and 29th September, 2000 respectively. The action was filed on 3rd of April, 2001 a time lag of about six months.

Having held that the act complained of by the appellant was an act done by the respondents in the direct execution or in discharge of a public duty, the conclusion is that the respondents fall within the contemplation of the protection afforded by the Public Officers (Protection) Law Cap 137 Laws of Bendel State of Nigeria applicable in Edo State. The cause of action arose on 29th September, 2000 on which date the appellant was retired from the service of Edo State. The present action was not commenced until 3rd April, 2001 a period of about 6 months since the cause of action in this suit arose. It is clear then that the appellant suit is caught by the provision of the Public Officers (Protection) Law Cap 137 Laws of Edo State and it is therefore statute barred.

See IBRAHIM V. JSC KADUNA STATE (1998), (64) LRCN Page 1.

The issue whether the Public Officers Protection Law cap 137 Laws of Bendel State is applicable to the claims of the appellant is answered in the affirmative and the issue whether the cause of action of the appellant is statute barred by virtue of the provision of Public Officers Protection Law Cap 137 Law of Bendel State is also answered in the affirmative in favour of the Respondents.

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Other Citations: (2007)LCN/2294(CA)