Nnamdi Azikiwe University, Awka V. Prof. C. C. Nweke (2007)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A,
The respondent sued the appellant in the Federal High Court Enugu claiming the following reliefs in paragraph 15 of the statement of claim:
“(15) Where the plaintiff claims against the defendant as follows:-
(a) A declaration that the report of the Senate Panel on three cases and adopted by the 107th meeting of the Senate of the defendant held on Wednesday 26th January, 2005 as it affects the plaintiff is null and void and of no effect.
(b) A declaration that setting up a Senate Panel or any domestic or administrative committee by the defendant to try the plaintiff is pre-mature.
(c) An order setting aside the suspension of the plaintiff as a staff of the defendant.
(d) An order restraining the defendant from suspending, continuing to suspend or terminating the appointment of the plaintiff.
(e) An order restraining the defendant from implementing the report of the Senate Panel on three cases adopted by the 107th Meeting of the Senate of the defendant held on Wednesday 26th January 2005 as it affects the plaintiff.
(f) An order restoring the plaintiff to his full salary and entitlements as Professor in the department of Psychology of the defendant.
(g) An order paying to the plaintiff all the arrears of his unpaid salaries and other entitlements and allowances.”
On the 24th of February, 2005 the respondent filed a notice for interlocutory injunction seeking the following reliefs:
“An order of interlocutory injunction restraining the defendant, her agents or privies from terminating the plaintiff/applicant’s appointment with her or renewing/prolonging his suspension and from in any other manner whatsoever denying/holding back from the plaintiff/applicant all the privileges, entitlements and perquisite of his office of professor of psychology in the University, pending the determination of the substantive suit.
A further order of mandatory injunction compelling the respondent to start paying to the applicant forthwith, his full salaries, allowances and other income appertaining to his office of professor of psychology Nnamdi Azikiwe University Awka, pending the determination of the substantive suit.”
On the 15th of March, 2005 the appellant filed a notice of preliminary objection praying the court to dismiss the suit on the ground that it was statute-barred.
On the 20th of July, 2005 the notice of preliminary objection and the motion for injunction were argued and the trial court delivered its ruling on the 5th of October, 2005 in which it dismissed the notice of preliminary objection and granted the reliefs in the motion for injunction.
Dissatisfied with the ruling the appellant appealed to this court and the learned senior counsel for it filed a brief in which he formulated 3 issues for determination as follows:
“(i) Whether the learned trial court was right in law when it held that the suit was not statute barred as it was not based on the suspension of the plaintiff but on the subsequent sittings of the Senate Committee and that the suit was not premature.
(ii) Whether the learned trial court was right in law when in its ruling on the interlocutory application for injunction it granted all the claims of the plaintiff contained in the substantive suit.
(iii) Whether the learned trial court was right in law when it held that once there are conflicting affidavits that it shows that there is a triable issue and this supports the claim for the grant of an order for injunction.”
The learned counsel for the respondent also filed a brief and formulated 2 issues for determination as follows:
“(i) Whether the trial court had the jurisdiction to hear the suit as constituted and was the suit statute barred under S.2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990.
(ii) Did the ruling of the trial court have the effect of determining the substantive suit at the interlocutory stage and did the plaintiff/respondent make out a proper case to be entitled to the order of interlocutory injunction made in his favour by the court.”
The learned senior counsel for the appellant filed a reply brief.
I will adopt the 2 issues formulated by the respondent’s counsel for the determination of this appeal as the 2 issues adequately sum up the substance of the controversy in the appeal.
The learned senior counsel for the appellant drew the court’s attention to the fact that the respondent was suspended from office on the 22nd of September, 2004 and placed on half salary as contained in paragraph 15 of the respondent’s statement of claim.
The respondent commenced his action against the appellant on the 9th of February, 2005 which was over 3 months after his suspension. The leaned counsel submitted that the suit was statute barred under section 2(a) of the Public Officers Protection Act.
He relied on the cases of Ibrahim v. Judicial Service Committee of Kaduna State (1998) 14 NWLR (Pt.584) I; and Ambode v. Ministry of Foreign Affairs (2004) 14 NWLR (Pt.894) 506. He urged the court to hold that the trial court was wrong in failing to dismiss the suit on the ground that it was statute-barred.
On the second issue the learned senior counsel for the appellant submitted that in granting the interlocutory injunction the trial court decided the reliefs sought in the substantive case contrary to the decisions from the Supreme Court and the Court of Appeal in a number of cases that a trial court should avoid deciding the reliefs sought in the substantive claim while considering an interlocutory application.
He relied on the cases of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266; and Ogbuehi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53. He urged the court to allow the appeal on this ground also.
In reply the learned counsel for the respondent submitted that the action was not statute-barred because the suspension of the respondent from office was a continuing act and was done in bad faith. It was therefore not caught by the section 2(a) of the Public Official Protection Act. On the second issue it was the contention of the learned counsel for the respondent that the order of interlocutory injunction made by the trial court did not decide the substantive suit. He submitted that the basic duty of a court of law is to preserve the subject matter of a suit to ensure that neither of the parties destroys the same until the suit is determined. He relied on the case of Ojukwu v. Governor of Lagos Stale (1985) 2 NWLR (Pt.10) 806.
Section 2(a) of the Public Officers Protection Act, Cap. 379 of the Laws of the Federation, 1990 reads:
“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 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, 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:
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;”
From the facts of this case it is clear that the respondent was suspended on the 22nd of September, 2004 while he commenced his suit on the 9th of February, 2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act. There is no basis for the argument of the learned counsel for the respondent that the suspension was a continuing act which was not caught by the Public Officers Protection Act. The suspension started on a definite date which was the date of the cause of action for all intents and purposes.
The respondent had a duty to ensure that he acted timeously if he was to hold the appellant to account for his suspension. See the case of Almbode v. Ministry of Foreign Affairs (2004) 14 NWLR (Pt.894) 506 in which the Court of Appeal held that the cause of action accrued on the 31st of August, 1999 when the letter of retirement was served on the appellant and not on the 16th of May 2000 when his effort to negotiate with his employer became fruitless.
On the second issue it is trite law that courts are enjoined not to decide substantive suit at an interlocutory application stage. See the cases of Akapo v. Hakeem-Habeeb and Ogbaehi v. Governor of Imo State (supra). It is beyond dispute that the learned trial Judge in granting the reliefs for the interlocutory application had decided the reliefs in the main case. There was nothing left for him to decide in the substantive suit. This was clearly irregular and cannot be allowed to stand.
Consequently, I allow this appeal and set aside the ruling of the trial court in its entirety. In its place I uphold the preliminary objection of the applicant in the court below and dismiss the respondent’s claim for being statute-barred.
From the circumstances of this case, I make no order as to costs.
Other Citations: (2007)LCN/2422(CA)
