Mrs. Aviazu Chukwu Nwaka V. The Head of Service, Ebonyi State & Ors (2007)
LawGlobal-Hub Lead Judgment Report
DENTON-WEST, J.C.A.
This is an appeal against the ruling of Ekuma Nkama, J. sitting at Abakaliki Judicial Division of the High Court of Ebonyi State in which he struck out the suit of the appellant as plaintiff, following a preliminary objection filed by the defendants questioning the jurisdiction of the court to hear and determine the suit.
The plaintiff/appellant had by an originating summons commenced her action against the defendant in the court below in the following terms:
“1. Whether the defendants are not bound by the rules and regulations, particularly “criterion for 1994/1995 promotions of teaching staff in Abia State of 22/11/95″ existing and in force in Abia State before the promulgation of Decree No. 36 of 1996 which carved out Ebonyi State from Abia State.
- Whether the 1st defendant in calculating and assessing the plaintiff’s benefit is at liberty to ignore the guidelines and criteria for promotion in force at Abia State at the time the plaintiff got her promotion as headmaster principal class on grade level 12.
- Alternatively, whether in law, the defendants could, at the retirement of the plaintiff unilaterally alter those guidelines and regulations to the detriment of the plaintiff so as to invalidate her promotion in 1995, based on those guidelines and regulations which were in force in Abia State at the time she was promoted headmaster principal class on grade level 12.
- If the answer to (1) and (2) are in the negative, a declaration that the plaintiff” is entitled to have her retirement benefits calculated based on grade level 12(9) earned by her at the time of her retirement on the 31st day or December, 2000 having fully satisfied the criteria for promotion to that grade under the guidelines and criteria in Abia State on the 1st day of October, 1996.
However, before the suit could be heard, the 1st and 2nd defendants/respondents raised a preliminary objection on the ground that plaintiff’s action was statute-barred by virtue of section 2 of the Public Officers Protection Act, Cap. 379, Laws of the Federal Republic of Nigeria and that the Court lacked the jurisdiction to entertain the suit. The learned trial Judge upheld the preliminary objection of the 1st and 2nd defendants and struck out the suit.
The plaintiff now appellant in this Court appealed against the decision. In the appellant’s brief filed by her counsel, the following three issues were formulated for the determination of this appeal.
“(a) Whether the trial court was right in striking out the suit at the time it did, on the ground that the suit was statute barred, when the defendants had not filed a counter affidavit to the plaintiff’s affidavit.
(b) Whether having held that “the main point for determination in this argument is whether a preliminary point of law can be raised at this point in time by the learned counsel for the defendants when he has not filed counter-affidavit, the learned trial Judge was in order to have gone ahead to strike out the plaintiff’s action without hearing further argument as to whether the plaintiff’s claims, are in the circumstance of this suit statute-barred.
(c) Whether this suit was indeed statute-barred as claimed by the defendants and as held by the lower Court.”
The 1st and 2nd respondents raised two issues – (a) and (b) which are similar in all material particulars with appellant’s issues (a) and (c). The 3rd respondent adopted the issues raised by the 1st and 2nd respondents and argued in similar vein. I shall therefore consider this appeal with the issues (a) and (c) for determination raised by the appellant.
Arguing issue (a) the learned counsel for the appellant admitted that limitation of action, if properly raised and proved affects the jurisdiction of the Court. He contended that the question of jurisdiction has to be properly raised whether at the Court of first instance or at the appellate court. Arguing along this line, counsel contended that limitation of action was a special defence which must be specifically pleaded by the party seeking its protection? In his view, the defendants cannot avail themselves of the protection provided by limitation of action unless it is pleaded. Counsel referred to Order 24 of the Imo State High Court (Civil Procedure) Rules 1988 applicable to Ebonyi State and submitted that any preliminary point of law to be raised by either party to the suit has to be made part of the pleading of that party which can be heard, before at or after the trial. (Italics mine).
The learned counsel for the appellant observed that upon proper construction of rules of court applicable in Ebonyi State, raising the defence of statute of limitation by way of notice of preliminary objection could not satisfy the requirements of the law. Adding that points of law could only be raised by pleadings. Learned counsel contended that subsection 2 allowed one exception which was that after exchange of pleadings, based on consent of parties, the Court may hear and dispose off the objection before hearing the substantive suit. He submitted that the court was bound to differentiate the two situations that is where there is need to incorporate the objection in pleadings and where such can be dispensed with by virtue of the fact that demurrer is allowed. Adding that where demurrer is not allowed, the proper approach was dismissal or striking out of the defendants’ preliminary objection. Counsel referred to the case of Adesanya v. Olayeni (1999) 2 NWLR (Pt. 592) 558. He submitted that allowing defendants to raise objection before filing their defence would amount to reviving the plea of demurrer which had been dead and buried. He referred to Disu v. Ajilowura (2001) 4 NWLR (Pt. 702) 76. Rounding off his argument on this issue, the learned counsel submitted and insisted that a defendant who wanted to raise a defence of limitation must plead that defence and that defendants’ failure to plead that defence effectively denied them the protection of the law. He cited the following cases in support of that contention: Nwakanwa ” Military Administrator of Abia State (1995) 4 NWLR (Pt. 388) 185 at 188: Ketu & Anor: v. Onikoro & Ors. (1984) 10 SC 265 at 267: Lasisi Fadare & Ors. v. A.-G of Oyo State (1982) 4 SC 1 at 19; Oruobu v. Anekwe (1997) 5 NWLR (Pt. 506) 618 at 623 – 624.
He finally contended on this issue that a counter-affidavit was to an originating summons what statement of defence was to the writ of summons and therefore submitted that since the defendants failed or neglected to file a counter-affidavit to the plaintiff’s originating summons the defence of limitation could not avail them. He referred this court to the case of Ajagungbade III. Adeyelu II (2001) 16 NWLR (Pt. 738) 126 at 195-196. He urged this court to resolve the issue in favour of the appellant.
In response, learned counsel for the respondent’s comended that the learned trial Judge was right in striking out the suit at the time he did on grounds that the suit was statute-bared when the defendant had not filed a counter-affidavit in response to the plaintiff/appellant’s affidavit in support of the originating summons. To support his argument, the learned counsel referred to the case of Texaco Panama Inc. v. Shell Pet. Dev. Corp. of Nig. (2000) 4 NWLR (Pt. 653) 480 at B 484. He stressed that actions commenced by origination summons were tried via affidavit evidence and not by exchange of pleadings as contended by the plaintiff/appellant’s counsel. Counsel referred to Order 38 rule 4 of the Imo State High Court (Civil Procedure) Rules, 1988 to Ebonyi State and the case of Anatogu v. Anatogu (1997) 9 NWLR (Pt. 519) 49. Learned counsel submitted that Order 24 rule 2 High Court (Civil Procedure) Rules of the Imo State High Court (Civil Procedure) Rules applicable to Ebonyi State did not apply in the instant case as Order 24 rule 2 could apply where the action was commenced by writ of summons. Learned counsel to the respondents argued that since the action was commenced by originating summons in which the facts were not in dispute, pleadings were not necessary for the determination of the suit and thus the failure or neglect of the respondents to file a statement of defence wherein the defence of the limitation of action ought to have been specifically pleaded was not fatal to the respondents’ objection. It was counsel’s contention that rule 2 of Order 24 of Imo State High Court (Civil Procedure) Rules was intended to apply in action commenced by writ of summons.
The learned counsel explained that the notice of preliminary objection raised by the respondents questioned the jurisdiction of the court to hear and determine the suit. He contended that the appellant had failed to address the issue of limitation as raised by the respondents when argument for striking out the suit by reason of preliminary objection was taken on the 16th day of July, 2002. He submitted that the issue of whether a suit was caught up by limitation was an issue that touches on the jurisdiction of the court. He referred to the case of Raleigh Ind. (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760 at 764: N.D.I.C. v. CBN & Anor: (2002) 7 NWLR (Pt. 766) 272 and Emiator v Nigerian Army (1999) 12 NWLR (Pt. 631) p. 362 at 634.
Learned counsel submitted further that the issue of jurisdiction can be raised at any stage in the proceedings and in any court even on appeal. He referred to N.D.I.C. v. CBN (supra) and Araka v. Ejeugwu (1999) 2 NWLR (Pt. 589) 107 at 11. The learned counsel finally submitted that the learned trial Judge was right in upholding the respondents’ objection at the time he did irrespective of the fact that the respondents failed to file counter-affidavit to the appellant’s affidavit in support of the originating summons.
Shun of embellishment, this appeal revolves on the construction of section 2 of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990 as applied in the determination of this appeal by the trial Judge. It has been held in a plethora of cases by the Supreme Court that in construing the provisions of a statute where the words are clear and unambiguous, it is the words used that prevail and not what the Court says the provision means, unless where giving it a literal interpretation might lead to absurdity. In Mobil Oil (Nig.) Ltd. v. Federal Board of Inland Revenue (1977) 3 S.C. 53, the Supreme Court said:
“The general rule for construing a statute has been stated by this Court in a number of cases. The rule is where the words of a statute are clear, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice.”
See Balogun v. Ode (2007) 4 NWLR (Pt. 1023) 1. In Abubakar v. Attorney-General of Federation and five others (2007) 3 NWLR (Pt. 1022) 601 at 635-6, the President of this Court, His Lordship Umaru Abdullahi, in this land mark judgment whilst considering the interpretation of certain constitutional provision in the case adopted the clear and unambiguous approach to the interpretation of the Constitution when he adopted the dictum of Sir Udo Umoma, JSC of the blessed memory thus:
“I am about to embark on the interpretation of the provisions of the Constitution in an area in which I respectfully hold to be novel in the sense that never in the annals of this country had a court been invited to examine and determine that the second highest office in the realm is vacant. It behoves me to take the assignment with the highest sense of responsibility and caution in the interest of the country and posterity. I will therefore, be guided by the principles of interpretation of the Constitution enunciated in the case of Nafiu Rabiu v. State (1981) 2 NCLR 293. It seems to me to be locus classicus on construing our Constitution. It discountenanced frivolity and requires court, in construing the Constitution, to do so with liberalism and should avoid construing it in a manner that one section would defeat the intent or purpose of another. At page 326 thereof, His Lordship, Sir Udo Udoma, JSC of the blessed memory said:
“… it is the duty of this Court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that is was made, enacted and given to themselves by the people of the Federal Republic of Nigeria … that the function of the Constitution is to establish a framework and principles of government broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best Carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valent quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution so as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.
Having set out the parameter on which to proceed, I propose to consider the various sections of the Constitution.”
Therefore since the provisions of the Public Officers Protection Act is very clear, I see no reason in effecting its interpretation to marry it along with the issue of demurrer or the provisions of the Imo State High Court (Civil Procedure) Rules, 1988 as applicable to Ebonyi State. The provision of the Act is very clear and so the court is obliged to give effect to its literal meaning. This is no ambiguity whatsoever.
The crux of the appellant’s argument in this appeal is that the preliminary objection of the respondents was premature. The respondent on the other hand, contended that the issue of limitation of action was a jurisdictional issue, which could be raised at any stage in the proceedings. In the case of Raleigh Industries (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760 at 764, it was held that once an action is caught up by the Limitation Act, the courts lack jurisdiction to entertain it. It is also trite that the issue of jurisdiction is fundamental to the proper adjudication of any matter or cause before any court.
Jurisdiction has been defined as the power of the court to hear and determine the subject matter in controversy between the parties. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; Alhaji Atiku Abubakar v. The Attorney-General of the Federation & Others (2007) 6 NWLR (Pt 1031) 626 at page 646 para E; Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt. 746) 524.
It is trite that any pronouncement by a court without jurisdiction is an act in futility. The Supreme Court and indeed this Court have through several decided cases made it clear that the issue of jurisdiction can be raised at any stage of the proceedings. See Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt. 746) 524. It can also be raised by any of the parties or suo motu by the Court. See Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 and Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305. Limitation of action when properly raised and successfully proved affects jurisdiction. The appellant admitted this much when he said:
“It is admitted that limitation of action once it has been properly raised and successfully proved affects the jurisdiction of the court”
I am therefore of the firm view that limitation of action being an issue of jurisdiction can be raised at any stage in the proceedings irrespective of whether or not the action started by way of originating summons, It is also the law that wherever a challenge is made to the competence or jurisdiction of the Court to entertain a matter, the court should deal with the issue at the earliest opportunity. See Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616, Unilorin v. Adeniran (2007) 6 NWLR (Pt 1031) 498, Prof Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416, (2005) All FWLR (Pt. 245) 1151.
I find the appellant’s argument that limitation of action has to be properly raised as misconceived. So also is his contention that limitation of action “must be specifically pleaded”. It is the law that limitation of action is matter of jurisdiction and any act or determination by any court without jurisdiction is null and void. It follows, in my view, therefore that limitation of action being an issue that affects the jurisdiction of the Court can be raise at any stage of the proceedings irrespective of the nature of the proceedings. See Bronik Motors v. E Wema Bank (supra); Adeyemi v Opeyori (1976) 9-10 S.C. 31, Shell BP Petroleum Dev Co. (Nig) Ltd. v Onasanya (1976) 1 All NLR (Pt. 1)425.
I agree with the learned counsel for the respondents that they were not obliged to file counter-affidavit to the appellant’s affidavit in support of the originating summons before raising their preliminary objection, I am also of the view that Order 23 rule 2 of the Imo State High Court (Civil Procedure) Rules applicable to Ebonyi State does not apply in the instant case. In view of the foregoing therefore, I am obliged to resolve this issue in favour of the respondents.
As I have stated earlier in this judgment the 2nd issue (b) of the respondents as well as the third issue (c) of the appellant are the same in every material particular. Issue (b) of the appellant’s issue for determination has been adequately covered by issue (a) considered above. Issues (c) and (b) reads:-
“Whether the suit was indeed statute-barred as claimed by the defendants and held by the trial court?”
Arguing this issue, the learned counsel for the appellant contended that the case of the appellant before the lower court was that the defendants/respondents were wrong in calculating her retirement benefit on grade level 10 instead of grade level 12 steps 9. And that the Court should make an order directing the respondents to do the right thing by calculating her retirement benefits based on her last promotion on grade level 12 steps 9. The learned counsel submitted that the claims and reliefs contained in the originating summons could not be caught or affected by section 2 or of Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990 or section 2 or 2(a) of the Public Officers Protection Law, Cap. 106, Laws of Eastern Nigeria. It was the contention of learned counsel for the appellant that none of the defendants had committed or had been accused of committing any act or making any omission for which they might be liable to be sued to Court, which might compel them to seek the protection of the Public Officers Protection Law. Learned counsel submitted that for the respondents to avail themselves of the protection of section 2 of the Act, they must as public officers, have done something, whether by way of action, deed or neglect or default in the discharge or execution of their public duties for which they might be sued. He referred to the case of Mr. Gamu Yare (Chun Mada) v. Alhaji Adamu Nunku & Ors. (1995) 5 NWLR (Pt. 394) 129.
The learned counsel for the appellant further submitted that neither the Public Officers Protection Act nor the Public Officers Protection Law was applicable to the appellant’s suit and that the learned trial Judge erred in law when he stated that “in the instant case, the action filed by the plaintiff against the defendants who are public officers, far exceeds the three months of limitation and therefore statute-barred”.
Learned counsel further contended that it had been held by several authorities that section 2(a) of the Public Officers Protection Law does not apply incases of recovery of land, breach of contract, claim for work and labour done. He referred this court to the following authorities: Salako v. L.E.D.B. & Anor: (1953) 20 NLR 169: NPA v. Construzioni Generali FCS & Anor: (1974) NSCC 622; Judicial Service Commission v. Alaka (1982) 8-10 SC 42; Oduko v. Government of Ebonyi State (2004) 13 NWLR (Pt. 891) 487; CBN v. Adedeji (2004) 13 NWLR (Pt 890) 226. He finally submitted that the lower court was in error to strike out the case, as according to him. “The case that gave rise to this appeal sounds in contract” and urged this court to resolve the issue in favour of the appellant.
Learned counsel for the respondents submitted that the action of the appellant was indeed statute-barred. It was contended on behalf of the respondents that the action was filed on 22nd day of May, 2002 by way of originating summons within a period of one year and five months after the cause of action had arisen which was outside the three months allowed by section 2(a) of the Public Officers Protection Act.
He argued that a cause of action is statute-barred when no action can be brought in respect of it because the period laid down by law has elapsed. He referred to the case of Texaco Panama Inc. v. Shell C Dev. Corp. of Nigeria (2000) 4 NWLR (Pt. 653) p. 480 at 483. He contended further that a cause of action accrued from the date on which the incident that gave rise to it occurred. He contended that in the instant case, it was clear that the suit was instituted outside the three months allowed by law for the commencement of action against the respondents who were public officers. It was also his contention that the effect of the Public Officers Protection Act was to make a cause of action unenforceable if the action was not instituted within three months after the acts or neglect complained of. He referred to the case of Okeke v. Baba (2000) 3 NWLR (Pt. 650) 644 at 646-647.
Learned counsel for the respondents rounded up his arguments that where the law stipulated a precondition for putting a legal process in motion, any action instituted in contravention of the precondition is incompetent and a Court of law lacks jurisdiction to entertain it. He finally submitted that the learned trial Judge was right to strike out the suit for want of jurisdiction.
The question, this court is called upon to determine in this issue, is whether the action of the appellant was indeed statute-barred. To answer the question, I take recourse to section 2 of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria. The relevant section states:
“2. Where any action, prosecution, or any other proceeding 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 alleged neglect or default in the execution of any such Act, Law or duty or authority, the following provision 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.”
The appellant’s counsel has urged on us that section 2(a) of Public Officers Protection Act reproduced above does not apply in some category of cases which include breach of contract, claim for work and labour done, recovery of land etc. In support of this contention, learned counsel referred to several authorities. I regret however to say that the case in hand, is not in this category and therefore all the authorities cited by counsel are not relevant to the resolution of this issue. I am also not persuaded by the appellant’s argument that the Public Officers Protection Act and Public Officers Protection Law do not apply in the instant case. His subtle suggestion that the case, which gave rise to the present appeal “sound in contract” is also not persuasive. Even then the defendants in this appeal are all public officers and public institution.
They had urged that the court was required to look at the process filed by the plaintiff in order to determine whether or not the case was statute-barred. A closer look at the process filed by the appellant show clearly that the appellant’s action was filed on the 22nd day of May, 2002 while the cause of action accrued on the 31st day of December, 2000 which was a period of one year and five months after the accrual of the cause of action. From the foregoing, it is clear that the action was instituted after the three months stipulated by section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990. The Public Officer Protection Act was well considered by this court in Nwaogwugwu v. President of Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1030) p. 237, when it deliberated on whether a public officer is entitled to protection under section 2(a) of the Act. The Court of Appeal in the above case and in a plethora of other cases, like Unilorin v. Adeniran (2007) 6 NWLR (Pt. 1031) p. 498, came to the conclusion that a public officer of whatever description including public institutions are entitled to the protection conferred by the said section 2(a) of the Act.
The apex court too in its various pronouncements has also declared protection to public officers under the Act. Sec Prof: Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416, (2005) All FWLR (Pt. 245) 1151.
Therefore, I am obliged, in view of the foregoing, to agree with the observation of the learned trial Judge when he said:
“In the instant case, the action filed by the plaintiff against the defendant who are public officers far exceeds the three months of limitation and therefore statute-barred.”
In view of my findings above, I have no difficulty in resolving appellant’s issue (c) and the respondents’ issue (b) in favour of the respondents.
However, before I conclude this judgment, I am obliged to comment on the unfortunate outcome of this case. There is no doubt that the appellant may have indeed suffered some wrong in the hands of the respondents. As could be gleaned from a very close study of the record of appeal, it is quite clear that the Public Officers Protection Law, the controversy in this appeal arose from an administrative tangle of the appellant with the respondents in relation to her retirement benefits which could have been resolved without recourse to the law courts. Despite the outcome of this appeal, parties are enjoined if they so desire to sue for peace and endeavour to settle their administrative differences amicably. It appears to me that Public Officers Protection Act is providing an undeserved shield for public E officials against ordinary citizens who as it were may be ignorant of the provisions of the Act. It is my humble view that laws should operate to enhance the lives of citizens and not to deprive the citizenry the opportunity to ventilate his grievances especially when there is an infraction of their entitlements and constitutional rights.
Consequently, the appeal lacks merit it is therefore dismissed.
In the special circumstances of this appeal, there is no order as to costs.
Other Citations: (2007)LCN/2437(CA)
