Patrick Mbonu V. Nigerian Mining Corporation (2006)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

On the 12th of July, 2001, Okeke, J. sitting at the Federal High Court of Justice, Jos Division, Plateau State, Nigeria delivered in favour of the defendant, the ruling now appealed against by the plaintiff who was dissatisfied with it.

The brief background to this matter is that the plaintiff in an action which he filed on 22/11/99, claimed against the defendant, as shown in paragraph 22 of his statement of claim the following reliefs:

“1. A declaration that the plaintiff’s services with the defendant from 7th October, 1976 to 19th April, 1991 and from 1st August, 1991 to 31st July, 1998 are condonable, continuous and pensionable within the Public Service of the Federal Republic of Nigeria.

2. An order directing the defendant to condone the break which occurred in the plaintiff’s service from 19th April, 1991 to 31st July, 1991, as a result of the defendant’s letter of redundancy, which letter the defendant subsequently withdrew.

And to merge plaintiff’s period of casual employment from 15th March, 1976 to his regular appointment from 7th October, 1976.

3. An order directing the defendant to compute and pay the plaintiff’s gratuity and pension accruing to him for services rendered to the defendant from 15th March, 1976 up to and including 31st July, 1998 when the plaintiff voluntarily retired from the defendant’s service, less any previous payments made to him in whatever guise or description.
4. General damages in the sum of N50,000 (fifty thousand Naira only).
5. Cost of this action.”

The defendant filed a statement of defence. Therein in its paragraph 22, it raised an objection – a point of law as to the competence of the action thus: –

“Adverting generally to the claim, the defendant shall at or before the hearing of this suit contend that the cause of action herein having arisen on or about the 20/11/96 and the present suit having not been commenced until the 23/11/99 (a period of about 3 years and 3 days) the entire suit is statute-barred. The defendant shall on this find and rely on the provisions of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990.”

This objection was argued before trial, with leave of the court below. The defendant, relying on the Public Officers Protection Act, Cap. 379 of the Laws of the Federation of Nigeria, contended that the action was statute-barred in that it had not been commenced within three months from the date the cause of action arose. Being 20/11/96. A letter of the defendant of that date had declined the plaintiff’s plea for condonation of the short period of redundancy between April and July, 1991. But in the suit, the appellant was claiming remedies spanning beyond that.

The learned trial Judge heard the submission of learned counsel for the parties and upheld the preliminary objection, holding among other things, that by virtue of the Public Officers Protection Act the action was statute-barred, not having been brought within 3 months after the cause of action arose.

In the course of his ruling, the learned trial Judge also held: –

“It is my view and I so hold that by this letter reproduced above there was a break between the initial employment and the later one therefore the plaintiff cannot be asking for condonation when the nexus between the service periods has been broken by the contents of the letter reproduced above.”

Dissatisfied with all the foregoing, the plaintiff appealed to this court.

There were 4 grounds of appeal. I set them out:

Ground 1: The learned trial court erred in law and thus occasioned a miscarriage of justice when it held thus:

“it is my view and I so hold that by this letter reproduced above there was a break between the initial employment and the later one therefore the plaintiff cannot be asking for condonation when the nexus between the service periods has been broken by the contents of the letter reproduced above.”

Particulars of Error:

(a) The issue as determined by the trial court above never arose in the matter before the court.

(b) The question for determination in the objection of the respondent was whether from the statement of claim the cause of action of the appellant was statute-barred and not whether on the merit, the appellant was entitled to seek the relief he sought in the substantive suit.

(c) By holding as it did, the trial court went beyond the interlocutory matter before it and decided the substantive suit on the merit.

Ground 2: The learned trial court erred in law when it failed to consider in its ruling, the cases of N.P.A. v. Construzioni Generali Fasura Cogefar SPA & Anor. (1974) 1 All N.L.R. p. 945 at pp. 955-956; Santana Medical Service Limited v. N.P.A. (1999) 12 NWLR (Pt. 630) p. 189 at 202 and Peter Okeke v. Alhaji Saba (2000) 3 NWLR (Pt. 650) 644 at p. 653 cited by appellant’s counsel and thereby came to an unjust decision.

Particulars of Error:

(a) Counsel for the appellant cited the above cases to the trial court, to the effect that the provisions of the Public Officers Protection Act are not applicable to the appellant’s case being a matter of contract.

(b) The three cases being decisions of the Supreme Court and the Court of Appeal are binding on the trial court and it ought to consider them in its ruling. This, the trial court failed to do.

Ground 3: The learned trial court erred in law and thus occasioned a miscarriage of justice when it held thus:

“On whether the Public Officers Protection Act Cap. 379 applies to contract of employment, It is my view that the Act protects also such persons as corporation sole, company or anybody or persons corporate and unincorporated apart from natural persons. The Public Officers Protection Act has not differentiated what actions should be protected by the Public Officers Act therefore anyone seeking to enforce his right against public offices or officers must do so within the statutory period.”

Particulars of Error;

(a) It is not the law that there are no actions that are exempted from the operations of the Public Officers Protection Act, as seemingly held by the learned trial court.

(b) Indeed, it is the law that the Public Officers Protection Act does not apply to actions bordering on contract like is the case in the matter leading to this appeal.

Ground 4: The learned trial court erred in law when, relying on the case of Ibrahim v. Judicial Service Commission, it held that the action of the appellant was statute-barred and thus occasioned a miscarriage of justice.

Particulars of Error

(a) The case of Ibrahim v. Judicial Service Commission never decided that the Public Officers Protection Act applies to cases of contract.

(b) In the circumstance of the appellant’s case, he could not have brought this action while still in the respondent’s service, when all the facts to entitle him to succeed had not happened.

Parties to the appeal, as required by the rules of this court, duly filed their briefs of argument.

In the appellant’s brief, the following 2 issues were distilled from the 4 grounds of appeal: –

(1) “Whether the defendant’s letter dated 20/11/96 written while the plaintiff was still in the service of the defendant would operate to give the plaintiff immediate cause of action against the employers in the circumstances of this case.

(2) Whether Section 2(a) of Public Officers Protection Act as cited is applicable to contract of employment so as to bar the plaintiff’s action as constituted.

For the respondents, one issue was identified thus-

Whether the defendant/respondent’s corporation is a public officer within the meaning of the Public Officers Protection Act and therefore entitled to protection under the Act.

Having perused the issues for determination identified by the parties, and the grounds of appeal, it would appear to me that the appellant’s two issues better captures the grounds of appeal than the respondent’s lone issue. I therefore adopt the appellant’s issues for the determination of this appeal. Although parties did not align their issues for determination to the grounds of appeal, I deem issue No. 1 to arise from ground 1 and issue No.2 to arise from grounds 2, 3 and 4 (supra). The respondent’s lone issue is encapsulated in the appellant’s issue 2. I see the real issue in brief as, whether the action of the plaintiff is statute-barred having regard to the provisions of the Public Officer’s Protection Act.

It is common ground that the appellant was in the employment of the respondent/corporation between October, 1976 and 1st July, 1998 when he retired.

Before addressing the issues for determination, I will first set out the appellant’s claim and pleadings. It is only from the writ of summons and statement of claim that the period of limitation must be determined. It is in the claim of the plaintiff that the date on which the alleged cause of action arose as well as the date on which the suit is filed, appear.

See Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at 416 SC.

From the statement of claim there are the following relevant paragraphs: –

1. “The plaintiff, who resides at No. 49 Mallam Kure Street, Jos within the jurisdiction of this honourable Court, is a plumber by trade and was a public servant and an employee of the defendant until he retired voluntarily in July, 1998.
2. The defendant is a corporate body established by The Federal Republic of Nigeria, with its headquarters at the Federal Secretariat, Jos, Plateau State, also within jurisdiction.
3. The plaintiff joined the service of the defendant corporation on 15th March, 1976 as a casual worker without any formal appointment.
4. In October, 1976 the plaintiff was offered a full-time pensionable appointment as Artisan Grade III by the defendant. The plaintiff shall, at the trial of this suit, rely on the letter of appointment dated 7th October, 1976, and same is hereby pleaded.
5. The plaintiff avers that at various times in the service of the defendant, he was promoted to higher position and, by April, 1991, he was on salary grade level 06 step 5, a foreman.
6. The plaintiff further avers that on 19th of April. 1991, he was served with a letter declaring his position redundant by the defendant.
7. In furtherance of the redundancy as stated in paragraph 6 above, the plaintiff avers that he was paid some money by the defendant, as redundancy entitlement. The plaintiff hereby pleads and shall rely on the defendant’s letter of redundancy aforesaid.
8. The plaintiff avers that by its letter dated 10th July, 1991, the defendant withdrew the letter of redundancy aforementioned and re-instated him to his former job in the corporation. The plaintiff shall rely on the said letter of withdrawal and same is hereby pleaded.
9. The plaintiff by his letter dated 1st August, 1991 accepted the defendant’s withdrawal of the redundancy, and plaintiff’s letter is hereby pleaded and the defendant is given notice to produce same at the trial of this suit.
10. The plaintiff avers that he was reinstated into his former employment with effect from 1st August, 1991 and remained till 31st July, 1998 when he voluntarily retired from service.
11. The plaintiff further avers that he was issued two separate certificates of service by the defendant covering the following period of his service:

(a) 7th October, 1976 when his appointment was formalized to 19th April, 1991, when he was declared redundant;

(b) 1st August, 1991, when he was reinstated to 31st July, 1998, when he voluntarily retired from service.

12. The plaintiff avers that after his reinstatement in August, 1991, he requested the defendant to condone the break which occurred in his service as a result of the withdrawn redundancy, and to convert the redundancy entitlement paid to him to loan, recoverable on monthly installments or from his final entitlements on retirement.
13. Plaintiff shall place reliance on the relevant Federal Establishments Circulars as well as the Pensions Act, which are applicable to the defendant Corporation within the Public Service of the Federation.
14. Plaintiff further avers that while in service, after his reinstatement in 1991, he ran promotions and annual as follows:

1992- Promotion to Technical Officer on grade level 07/04 vide letter dated 16 November, 1992.

1993- Promotion to Technical Officer Grade Level 08/1 vide letter dated 23rd August, 1993.

1994- Normal increment to GL 08/step 2 vide letter dated 24th March, 1994

1995- Normal increment to GL 08 step 3 vide letter dated 6th January, 1995.

15. Plaintiff shall rely on all letters referred to in paragraph 14 above at the trial of this suit and same are hereby pleaded.
16. Paintiff avers that by the defendant’s conduct, he believed that he had a pensionable job, and hope that he would be treated as others in similar situations in the defendant’s employment.
17. Plaintiff avers that the defendant’s reply dated 20/11/96, to his request for condonation of the break in his service, is discriminatory and does not represent the practice elsewhere in the Federal Public Service or within the defendant’s service. Plaintiff hereby pleads the said letter. Plaintiff further put the defendant on notice to produce the personal file No.EST/IJ.503 of one Musa Haruna, driver in the defendant’s service, whose two services were condoned on 5th September, 1994 and money earlier paid to him treated as loan.
18. Plaintiff shall further rely on his letter dated 18th December, 1996 to the defendant, where he further pressed his demand for condonation of break and gave some more instances where the defendant had treated its staff accordingly. Defendant is put on notice to produce the said letter at the trial of this suit.
19. Plaintiff further avers that at all material time, he had always regarded any payment made to him by the defendant as only part of his terminal entitlement, having put in a total of 22 years in the defendant’s service.
20. Plaintiff avers also that when the defendant turned deaf ears to his numerous demands to be placed on the defendant’s pension list after his voluntary retirement in July, 1998, he engaged the services of solicitors to press his claim.
21. The plaintiff pleads and shall rely on the letter dated 5th October, 1998 by his solicitors to the defendant and the reply thereto dated 31st August, 1999. The defendant is given notice to produce the letter dated 5th October, 1998, at the trial of this suit.
22. The plaintiff avers that the action of the defendant in denying him pension is not only discriminatory, but dehumanizing, and has caused him and his family great grief, pain and untold hardship.”

The defendants averred in relevant paragraphs of their statement of defence thus: –

1. “Paragraph 1 of the claim is admitted only to the extent that plaintiff, a plumber, was a Public Servant and employee of the defendant until the 19/4/91 when he was declared redundant vide defendant’s letter of 19/4/91.
2. Paragraph 2 of the claim is admitted Paragraph 3 is vehemently denied and the defendant puts the plaintiff to strictest proof of the averments therein.
3. Paragraph 4, 5, 6 and 7 of the claim are admitted. The defendant admits paragraph 8 of the claim only to the extent that by its letter of redundancy and directed the letter of 10/7/91, it withdrew the letter of redundancy and directed the plaintiff to meet and discuss with the official(s) of the defendant, the modalities for his reengagement into the defendant’s service.
4. The defendant further states that in line with the practice of the Corporation, the plaintiff was asked (by the defendant) to refund the sum of N25,752.86k paid to him as benefits when his employment was determined in 1991, as a condition precedent to his re-engagement into the service of-the defendant.
5. The plaintiff, rather than refund the sum already collected by him or even request that same be treated as loan to him by the Corporation, wrote the defendant on 1st August, 1991 (in response to the defendant’s letter of 10/7/91) opting to be employed “as a new staff” of the defendant.
6. Defendant avers that the choice of the plaintiff to be employed as a new staff was to avoid re-paying the money he already collected to having same from his future entitlements.
7. Paragraph 9 of the claim is denied. The defendant further states that instead of accepting the offer of the defendant, the plaintiff in his reply of 01/8/91 opted to be employed afresh as a new staff.
8. In further answer to paragraphs 8 and 9 of the claim the defendant avers that as a result of the plaintiff’s choice to be employed as a new staff, the defendant by their letter of 23/9/91 offered the plaintiff a contract appointment as foreman-plumber with effect from 1st August, 1991.
9. The defendant states that the plaintiff commenced work as a contract employee of the defendant on 23/9/91 and so worked until 14/12/95 (a period of over 4 years) when, for the first time, he wrote the defendant requesting that his contract appointment be re-considered and converted to permanent appointment.
10. The defendant after due consideration of the plaintiff’s plea and realizing that a new relationship existed between the plaintiff and defendant since 23/9/91, refused plaintiff’s request that his contract appointment be condoned with the earlier service from 1976 to 1991.

This fact was conveyed to the plaintiff by defendant’s letter dated 20/11/96

11. Paragraph 10 of the claim is denied. In further answer the defendant contends that what it offered the plaintiff with effect from 1st August, 1991 was a contract appointment vide its letter of 23/9/91, and the plaintiff accepted the offer, worked and was paid as such until after 4 years when he sought for a change.
12. In further answer to paragraph 10 of the claim the defendant states that the plaintiff could not have been reinstated to his former employment when by his own letter he offered to be employed “as new staff’ of the defendant. The defendant shall at the trial hereof contend that with effect from 1st August, 1991 to 31st July, 1998, a new relationship being one of contract appointment subsisted between the plaintiff and the defendant independent of previous relationship between 7/10/76 to 19/4/91.

13, The defendant admits paragraph 11 to the extent that two (2) certificates of service were issued to the plaintiff by defendant. The defendant pleads, however that the first certificate dated ’22/5/91 was mistakenly issued to show that the plaintiff’s period of service (which commenced on the 7th of October, 1976 and terminated the 19th April, 1991) was 15 years instead of 14 years 6 months and 22 days.

14. The defendant denies paragraph 12 of the claim and states that the plaintiff’s request for condonation came over 4 years after he has (sic) been employed and paid as a contract employed (sic) of the defendant and same was refused.
15. The defendant admits paragraph 14 of the claim and states further that normal income to and promotion of its contract appointees are a normal practice in the Corporation and does not derogate from the contract status of such recipient contact employee.
16. Paragraph 16 of the claim is vehemently denied. In further answer the defendant states that the plaintiff was not any way (sic) deceived (but was aware) about the status of his employment with the defendant and particularly states that;

(a) between 1st August, 1991 and 31st July, 1998 the plaintiff worked and was paid as a contract employee of the defendant;

(b) Plaintiff’s knowledge of the status of his employment made him write his letter of 14/12/95 asking the defendant to condone his period of contract employment with that of his earlier employment;

(c) At the end of his contract employment in 1998 he signed for and collected his entitlements to wit: contract addition and repatriation allowance of N23,417.18 without any protest;

17. Defendant denies paragraph 17 and puts the plaintiff to the strict proof thereof. In further answer the defendant states that the case of Musa Haruna and the plaintiff are not the same in that unlike plaintiff, Musa Haruna was retired in error.
18. Paragraph 19 of the claim is false and same is vehemently denied. The defendant further states that the plaintiff at all times knew what he was paid was never part of his terminal benefit as a result of his years of service. Letter of the plaintiff to the defendant, particularly the letter of 26/9/91, showing that plaintiff knew what he was being paid for are hereby pleaded.
19. The defendant is not in a position to deny or admit paragraphs 20 and 21 of the claim but admits receiving a letter from the plaintiff’s solicitors.
20. The defendant denies paragraph 22 of the claim and puts plaintiff to the strictest proof.
21. Adverting generally to the claim, the defendant shall at or before the hearing of this suit contend that the cause of action herein having arisen on or about the 20/11/96 and the present suit having not been commenced until the 23/11/99) (a period of about 3 years and 3 days) the entire suit is statute-barred. The defendant shall on this find and rely on the provisions of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990.
22. The defendant shall at the trial of this suit find and rely on any file, letter or document mentioned in any paragraph of this statement of defence or in any manner relating to or relevant to any issue in this suit, and notice is hereby given to the plaintiff to produce the original of any such file, letter or document in his custody.
23. Wherefore the defendant urges the court to strike out and dismiss the plaintiff’s claim in its entirety.”

The plaintiff also filed a reply to the statement of defence. He averred as follows: –

“1. Plaintiff denies the averment in paragraph 5 of the statement of defence, and states that his reinstatement in August, 1991 was unconditional, and was done at the instance of the defendant without the plaintiff applying for same.

2. Plaintiff denies the averment in paragraph 6 of the statement of defence, and states that he never opted for any contract appointment.
3. Plaintiff denies paragraph 7 of the statement of defence, and puts the defendant to the strictest proof thereof. In reply, plaintiff states that his letter dated 1st August, 1991 clearly stated that he hoped to start from where he stopped (meaning the time of his arbitrary declaration of redundancy by the defendant), since he had already collected part of his entitlement.
4. Plaintiff denies paragraph 8, 9, and 10 of the statement of defence. Plaintiff further states that the purported offer of contract appointment was a negative reaction to his request for the condonation of the break, which occurred in his service as a result of the redundancy. The said letter dated 23rd September, 1991 was issued nearly 2 months after his reinstatement on 1st August, 1991.
5. In reply to paragraph 11 of the statement of defence, plaintiff states that the defendant’s letter dated 20/11/96 clearly states the reason for refusing to acced to his request to treat the money paid to him as loan, recoverable from his final entitlement, which reason was a fallacy, especially as the plaintiff was not receiving any pension at all.
6. In reply to paragraph 12, 13, 14, 15, 16 and 17, plaintiff states that the purported offer of contract appointment was for an initial tour of 12 months. Same was never renewed by the defendant. Instead, plaintiff ran his promotions and normal increments as a continuation of his service after reinstatement.
7. In reply to paragraph 18, plaintiff states that what occurred in his service between 19th April, 1991 and 31 July, 1991 was a temporary suspension of service within the meaning of the provisions of the Pensions Act, and was squarely similar to that of Musa Haruna, both having been caused by no fault of the victims.
8. In reply to paragraph 20, plaintiff states that the defendant’s company Secretary Legal Adviser, acting on behalf of the defendant, had two meetings with plaintiff’s Solicitors at which he assured them of defendant’s moves to settle the issue of plaintiffs claims.

Plaintiff further states that the self-same company secretary/legal officer at various times showed him plaintiff’s personal file in which he had recommended actions to defendant’s Management in order to resolve the matter and was surprised at the somersault in defendant’s letter dated 31/8/99, which gave rise to this suit. The defendant is put on notice to produce plaintiff’s personal file No. EST/P890 at the trial of this suit.

9. Plaintiff further replies generally that to the best of his knowledge:

(a) ‘Contract appointment is not offered to a Nigerian Officer in the Federal Public Service, except to retired officers receiving pension; in his circumstance, there was no need for a new appointment;

(b) No contract officer is promoted, or runs normal annual increment while in such service, as contract is for a fixed term and only renewable as a fresh appointment;

(c) Contract addition is not payable to a Nigerian in the Federal Public Service.”

Issue No.1:

It is the grouse of the appellant under this issue that the court below, while considering the interlocutory matter arising from the preliminary objection whether the appellant’s suit was statute-barred, deviated therefrom. That it proceeded to determine the entire suit which it ought not to have done, when it held as follows:

“It is my view and I so hold that by this letter reproduced above there was a break between the initial employment and the later one therefore the plaintiff cannot be asking for condonation when the nexus between the service period has been broken by contents of the letter reproduced above.”

Learned counsel complained that having stated as above, the court below had determined the entire suit. That what followed thereafter in the court’s subsequent ruling as to whether or not the action was statute-barred, became a mere fait accompli. That the statement of the court below had not heeded the warning of the Supreme Court in a number of cases, that in determining an interlocutory application the court must avoid making any observation in the ruling which might appear to prejudge the main issues in the proceedings and which may have the effect of affecting the merits of the substantive suit or remove its substratum. He cited a number of legal authorities. He concluded that the court below was in error, for his ruling definitely determined the entire suit.

In reply, learned counsel for the respondent took a completely different line. By way of a preliminary point, he objected to the hearing of the appeal. He submitted that ground 1, which complained of the passage dealt with under issue 1 above, did not constitute a decision and therefore could not be appealed against. He referred to the case of Wilfred Igbinovia v. University of Benin Teaching Hospital (2001) FWLR (Pt. 50) page 1745 at 1756, (2000) 8 NWLR (Pt.667) 53 where it was held that in law an appeal is cognizable where it relates to a decision of the trial court as defined in Section 277(1) of the 1979 Constitution and Section 318(1) of the 1999 Constitution and if a ground of appeal does not arise from the decision of the trial court, the ground is incompetent and liable to be struck out. He referred also to other authorities. In his view, that statement by the court below is only a passing remark not a decision and cannot be made the subject of an appeal, he called on us to pronounce ground 1 and the issue arising therefrom or predicated on it as incompetent and should be struck out.

I must with respect disagree with the view that the statement complained of in ground 1 of the grounds of appeal, and on which issue No. 1 of the appellant is predicated is not a decision, but a mere passing remark. The of the statement with the words, “I so hold” if not intended by the court below to be a decision would not be so couched. The court below believed it had made a finding and so stated that the letter dated 20/11/96 conveyed a break between the initial employment of the appellant and his later employment after he was declared redundant. The use of the word “I so hold” conveys this notion.

I agree with the submission of learned counsel for the appellant. In that statement, the court below had gone off the mark. Rather than simply determining the interlocutory issue before it, it first delved into determining the entire substantive suit. It is trite law that a court called upon to determine an interlocutory application must avoid making any statement, indeed touching any issue, or making any observation in its ruling tending to prejudge the main suit. See the case of Kotoye v. Saraki (1994) 7 NWLR (Pt.357) page 414 at 462 paras. E – F; The Registered Trustees of People S Club of Nigeria v. The Registered Trustees of Ansar-Ud-Deen Society (2000) 5 A NWLR (Pt. 657) 368 at 380- 381; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419, Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147 at 157 SC, per Kutigi, JSC; Orji v. Zaria Industries Ltd. (1992) 1 NWLR (pt. 216) 124; Tidex (Nig.) Ltd. v. NUPENG (1998) 11 NWLR (Pt. 573) 263; Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Odumem v. Adenuga (2000) 4 NWLR (Pt.652) 224; Okpokiri v. Okpokiri (2000) 3 NWLR (Pt. 649) 461 at 475; Ogunsola v. Usman (2002) 14NWLR (pt. 788) 636; North-South Petroleum (Nig.) Ltd. v. Federal Government of Nigeria (2002) 17 NWLR (Pt. 797) 639.

In the case of David Ejukorlem v. Alexander Ejukorlem (1994) 8 NWLR (Pt.365) page 652 at 663, cited for the appellant, the Court of Appeal, per Muhammad, JCA, set out the repercussions for breaching the above rule. He held that a court which by its ruling in an interlocutory application has determined the real issue in controversy, is clearly wrong in doing what amounts to prejudging the case without affording the parties the opportunity to adduce evidence. He added, that the court –

“…will create the impression that he has already made up his mind even before the trial commences. It is also against the rules of natural justice which demands that a party must be heard before passing judgment on him. The determination of the issues in an interlocutory application in my view vitiates the trial.”

I entirely agree with the foregoing views.

The court below in this case, ought to have limited itself to the issue raised by the respondent in paragraph 22 of its statement of defence by way of preliminary objection to the effect that the action filed by the appellant was statute-barred. It is trite law that the function of a court is to determine between parties, issues, which they have raised and canvassed in the matter before it. See Orizu v. Anyaegbunam (1978) 5 SC 21.

In this case the issue in the interlocutory matter was simply whether the action of the appellant was statute-barred and not whether the appellant was entitled for condonation of the break in his service, which the court below ought to have left to be determined – as the substantive issue in the action.

The resolution of this issue raised by the appellant qualifies ground 1 of this appeal to succeed. I overrule the objection by the learned senior counsel for the respondent that ground 1 of the grounds of appeal does not arise from the ruling of the court below appealed against. It does arise and I also determine the said issue No.1 in favour of the appellant.

Issue No.2:

There are in my view, two planks to this issue. They are covered by the appellant’s argument. The first, and in my view, it is the most crucial in the matter, is whether the suit as outlined in the statement of claim is statute-barred. The second, is the scope of the Public Officers Protection Act, and its application to a suit arising from a contract of service.

As to the first plank, learned counsel for the appellant submitted that these questions can only be answered by looking at the facts as are contained in the statement of claim and the reply to the statement of defence. Counsel gave a history of the services of the appellant from the time of employment till retirement and the appellant’s demand for the merger and condonation of service. Counsel submitted that it was on the 31st of August, 1999 that the respondents wrote to the appellant conveying its inability to merge the service.

He emphasized that rather than the letter of 20/11/96 written while the plaintiff was still in the service of the respondents, it was the letter of 31st August, 1999 that can be said to give the appellant a cause of action against his employers. Counsel reiterated that what the appellant was asking is the condonation of his service, submitting that assuming the court finds that the Public Officers Protection Act applies, that the cause of action is founded on the letter dated 31/8/99, and that the action was filed on 23/11/99. He emphasized that the Public Officers Protection Act will not bar the appellant from bringing an action in the circumstances of this case, despite the fact that recently so much reliance has been placed on the case of Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) I, (1998) 11-12 SCNJ 255 at 256-257 which is not applicable to the case.

In his brief of argument, learned counsel for the respondent did not address the question whether the action was statute-barred and the application of the principles as to when a cause of action accrues and accrued in the instant case. He only argued as follows:

That the appellant did not file any ground of appeal nor formulate any issue on the accrual of the appellant’s cause of action. That it is trite law that any discussion outside the issue formulated by the parties or the court is incompetent. He relied on Governor of Kogi State v. Hassan Yakubu (2001) 5 NSCQR 98 at 606, (2001) 6 NWLR (pt.710) 521.

He further submitted that the appellant is guilty of introducing an issue not covered by any ground of appeal and this should be ignored by this court.

I have decided to address this submission for the respondent first. For if upheld, then the appellant’s argument in issue 2 becomes of no moment. If not, appellant’s argument becomes relevant.

With due respect, the submission for the respondent on this is, to my mind, misconceived. Ground 4 of the grounds of the appeal and its particulars adequately complain of the issue whether the action is statute-barred. That indeed is the question arising from the respondent’s own preliminary objection in the court below and which the court below was called upon to determine before the trial of the main action. That is what the court below ruled upon in its ruling now appealed against. That same ground of appeal embodies the appellant’s complaint as to the manner of and reason tendered by the court below in its ruling declaring that the suit is statute-barred. I would add with respect that that part of the submission of learned counsel for the respondent that the appellant did not file any ground of appeal nor formulate any issue on the date of accrual of the appellants cause of action is entirely fallacious.

The respondent’s lone issue, which is, encapsuled in the appellant’s issue No.2 by itself, raises the question whether the, Public Officer’s Protection Act applies to the claim. The meaning is that if indeed the appellant is found to have failed to bring his claim within 3 months from when the cause of action arose, as provided in the Act, the same will be statute-barred. The question is, 3 months from when? This, without any iota of doubt, to my mind, calls inevitably for a discourse of the crucial questions as to, when did time start to run to meet the statutory provision, when did the cause of action arise in the case, and of course, the sister issue, what is a cause of action. The courts, in a plethora of decided cases, when called upon to determine whether an action is statute/time-barred, have addressed the issue as to when time begins to run, together with the other crucial questions (supra). Such is the position in the following cases:- Fadare v. A.-G., Oyo State (1982) 4 SC 1 at 24- 25, Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 and several others.

As was earlier stated in this judgment, issue No.2 of the appellant is distilled from grounds 2, 3 and 4 of the grounds of appeal. The issue arises from them. The respondent’s submission, which is without basis cannot be upheld.

I would point out further that in effect, the respondent has not addressed it fully. He left out the important element in the answer to that issue, namely, when does time begin to run, when a statute prescribes the time within which an action must be instituted and other ancillary issues set out above. It is these crucial questions, encapsuled in his grounds of appeal, which the appellant rightly addressed in his brief. There is therefore no merit in the respondent’s argument.

That being the case, I will now proceed to determine the issue, considering the appellant’s submission and the applicable law.

The relevant issue is whether the action is statute-barred and out of this, arises the first question which is when does time to institute an action begin to run, where time for instituting such an action is prescribed by law. The answer precisely, is that time begins to run from the date of the accrual of the cause of action.

Here is what the Supreme Court held in Fadare v. A.-G., Oyo State (1982) NSCC 52 at 60, also reported in (1982) 4 SC 1 at pp. 24-25, referring to Board of Trade v. Cayzer, Irvine Co. Ltd. 1927 AC 610: –

“Time begins to run when the cause of action arises”.

Then the apex court continued.

“Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed”.

(Per Nnamani, JSC at pp. 24-25). See also Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt. 391) 534 at 547, paras. E-G; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Cooke v. Gill (1873) LR 8CP 107 at 110 per Lord Esher; Letang v. Cooper (1965) 1 QB 232 at 242. See also Eboigbe v. N.N.PC. (1994) 5 NWLR (Pt.347) 649 also reported in (1994) 6 SCNJ (Pt. 1) 71 at 78-79; Nigerian Ports Authority v. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158.

The meaning of the expression “cause of action” is embedded in the above dictum of the Nnamani, JSC. In a plethora of legal authorities, it is also defined as the set of facts which establish or give rise to the right to sue and/or the factual situation which gives a party a right to judicial relief. The cause of action in a suit incorporates every fact (not evidence) which would support a party’s right to succeed or to have the judgment of the trial court. Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362. In a plaintiff’s claim, his cause of action includes every act or omission on the part of the defendant which gives the plaintiff the cause for his complaints. See Lasisi Fadare v. A.-G., Oyo State (supra) also reported in (1982) 4 SC 1 at 7 per Aniagolu, JSC; NPA v. Lotus Plastics Ltd. SC (supra).

A trial court, in the light of the foregoing, in order to identify the cause of action and when it arose examines the plaintiff’s claim so as to pick out all material events which constitute the cause of action and determine when they happened.

The courts have stated that the period of limitation is determined by looking at the writ of summons and statement of claim (and not the statement of defence). This is to ascertain the date on which the wrong complained of, giving rise to the plaintiff’s claim was committed, or when the rights sought to be enforced accrued, by comparing that date with the date on which the writ of summons was taken out or filed. If the date pleaded by the plaintiff in his writ of summons and statement of claim as when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is statute-barred and is incompetent. See, Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398 at 416 SC.; Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572 SC. In Egbe v. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) at p. 1, para. G, Oputa, JSC had this to say as to how to determine the period of limitation:

“The answer is simple – by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses”.

At times, several dates are pleaded in the statement of claim on which various events giving rise to the claim occurred. It is clear to me that if a defendant avers in his defence that the action is time/statute-barred, the trial court has a duty to examine the various events and dates in the statement of claim. This is in order to determine on which of the operative dates or several dates the cause of action actually arose or the right accrued and how long thereafter the suit was filed.

Applying the foregoing principles to this case, I am bound to state, with respect, having examined the processes and the statement of claim in this matter that the court below failed to apply these principles. The claim, the events and the dates in the writ of summons and statement of claim show that, the decision as to whether the action is statute-barred is not as determined by the court below. The action is not statute-barred. The period and events covered by the claim of the appellant spans from 15th March, 1976 when he was employed, to 31st July, 1998 when he finally retired. See particularly paragraphs 12-22(1)-(3) of the statement of claim. The events giving rise to his cause of action, cover and include his services rendered and all events occurring over the years of his employment, as well as his letter of demands when he retired in 1998, the denial of its liability by the respondent by letter of 31/8/99 etc. The action could therefore not be barred by 1996. For events on which he based his claim were still continuing after 1996.

The appellant in his pleadings prayed the court for an order to condone the break in his service from April, 1991 to 31st July, 1991, merge same with the period from 15th March, 1976 when he was first employed, together with the rest of the period of his employment up to 31st July, 1998 when he voluntarily finally retired from the services of the respondent. Undoubtedly, the period covered by the claim does not stop with the redundancy period in 1991 up to his recall the same year or up to his continued employment till 1996 only. In 1996, the appellant was still in employment and the issue of final terminal benefit remained at large till 1998.

In this case, all the events relevant to the claim or giving rise to the cause of action, did not occur by 1991 or 1996. The appellants services went up to July 31,1998 is included in the period sought to be merged with all the previous years services, appropriate to the computation of his final benefits as claimed by letter of his counsel which was only answered on 31/8/99 by the respondent. This is evident in particular, from paragraph 22(1)-22(3) of the statement of claim (supra). See also paragraphs 1-11 and 14-21 thereof, set out above.

I would add, with respect, that had the learned trial Judge considered the applicable legal principles and the statement of claim before him in the above light, he would have come to a different decision to the effect that even if the Public Officer Protection Act is applicable, that the claim is not statute-barred. This is, having regard to the events, the dates covered by the entire claim, including his retirement in 1998, the demand of 2/10/98 by the Solicitor, the consultations thereafter between the parties, the respondent’s reply and denial of liability thereof by its letter of 31/8/99 and the date of filing the action on 23/11/99. See paragraphs 14-22 of the statement of claim. I would uphold the submission of the learned counsel for the appellant. The period when the cause of action must be deemed to accrue is 31/8/99. From then till the date when the action was filed is not up to three months, that is from 31/8/99 – 23/11/99.

The foregoing has fully resolved the crucial issue in this appeal. I must conclude that even if the Public Officers Protection Act applies to the suit, as the respondent argues, since the cause of action did not accrue more than 3 months before the suit was filed, the action is not statute-barred and not incompetent.

It is for completeness only, that I have also decided to examine the argument of both parties on the second flank of issue No.2, which raises the question whether the above Act applies to the action arising from a contract of service as it relates to this matter.

In respect of that, learned counsel for the parties went into elaborate and long drawn arguments, which in my respectful view, were not particularly relevant. I reluctantly set them out before making my comments/ conclusions.

For the appellant, his learned counsel considered the issue so important that at the hearing of the appeal, he drew our attention to and elaborated further on the same. It was argued that the learned trial Judge had not correctly applied the Public Officer’s Protection Act when he stated thus at page 46 of the records:

“…the Public Officers Protection Act has not differentiated what actions should be protected by the Public Officers Act”.

He submitted that the Public Officers Protection Act, like the Nigerian Ports Authority Act, does not apply to cases of contract. He referred to the Supreme Court decision in the case of Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar SPA (1974) 1 All NLR (Pt. 145) at pg. 955 – 956, (1974) 12 SC 81; also Amao v. Civil Service Commission (1992) 7 NWLR (Pt. 252) page 214 at page 229 paras. D-E; Santana Medical Services Ltd. v. N.P.A. (1999) 12 NWLR (pt.630) page 189 at page 202, paras. A-E. Learned counsel pointed out that these cases cited to the court below were not considered by it. Also cited are Peter Okeke v. Alhaji Baba (2000) 3 NWLR (Pt. 650) 644 at 653 decided by the Court of Appeal. In that case, it was stated that it is settled law that the provisions of the Public Officers Protection Act are not absolute, and that they do not apply in actions for recovery of land, breaches of contract, claims for work and labour done.

A Counsel for the appellant further submitted that it was in error that the court below relied on the case of Ibrahim v. Judicial Service Commission (1998) 11-12 SCNJ 255 at 256-257. (1998) 14 NWLR (Pt.584) 1 to arrive at its decision, for in that case the issue whether the Public Officers Protection Act is applicable to contracts was not an issue and was therefore not considered. He concluded that the case while it decided the issue of legal personality of the public officer concerned vis-a-vis the Public Officers Protection Law, did not have a common ratio decidendi with the present case and the Construzioni case (supra) which the court below ought to have relied on in its ruling.

Learned counsel for the appellant in another flank of his argument submitted that whether the Public Officers Protection Act applies in this case or not, that the law is that the Act protects only public officers who act bonafide. He referred to the case of Offoboche v. Ogoja Local Government (2001) FWLR (Pt.68) page 1051 at page 1057, (2001) 16 NWLR (Pt.739) 458; Nwankwere v. Adewunmi (1966) 1 All NLR 129 at 133-134. The appellant’s counsel relied on appellant’s averments in paragraphs 17 and 18 of his statement of claim that the act of the respondent complained of is discriminating. He complained that it was wrong for the trial court to foreclose the appellant in the manner it did while considering the preliminary objection for he ought to have heard the case on its merits by taking evidence from the parties.

Before recording the submission of learned counsel for the respondent, I must here state that I adjudge all the foregoing submission virtually irrelevant. Having determined that the action is not statute-barred, all the definitions and argument whether the Act applies to claims sounding in contract may no longer arise if I am correct. The argument for the appellant regarding the application of the Act to acts of a defendant/employer which are bona fide etc. is a matter that can only be settled after leading evidence on the relevant facts.

I will here now record and comment on the respondent’s reaction to the appellant’s submission. For the respondent, the issue addressed was simply whether the respondent – Corporation was a public officer within the meaning of the Public Officer’s Protection Act and therefore entitled to protection under the Act.

It was submitted that the court below was justified in its finding that the respondent was a public officer within the Act. That the main complaint of the appellant was that the Public Officers Protection Act does not apply to the relationship between the appellant and the respondent since the Act does not apply to cases of contract such as theirs. That all the three legal authorities relied on by appellant’s counsel do not apply to this case. That these cases were distinguishable from the present one and the case of Ibrahim v. Judicial Service Commission (supra) applied by the court below. He conceded however that the Public Officers Protection Act does not apply in cases where the recovery of land, breach of contract and claims for work and labour done are in issue.

He however argued that in the matter before us, there was no written agreement between the appellant and the respondent. That the claim is for a declaration, orders and general damages, for a purpose not specified. That the appellant did not sue for breach of contract.

Learned counsel for the respondent also submitted that the learned trial Judge was right in relying on the case of Ibrahim v. Judicial Service Commission. That the respondent Corporation is a person within the Public Officers Protection Act, entitled to protection thereunder as shown in the Ibrahim case. That no issue was joined on the matter of bad faith, and/or malice and the appellant did not plead bad faith or malice allegedly committed by the respondent nor give particulars thereof. That while conceding that issues were joined on what the appellant called discrimination, bad faith was not pleaded. That there is a difference between discrimination and bad faith – which counsel defined. That a public officer losses his protection under the Act when an allegation of bad faith is made and proved, not when there is an allegation of discrimination the particulars of which the appellant did not give in his pleadings.

Learned counsel concluded his argument on this part of issue No.2 by submitting that the court below was right in not considering the issue of bad faith or malice in his ruling. I have observed that the respondent has not distilled his only issue in a manner to address in depth the complaint in the grounds of appeal and the basis for his preliminary objection. Its lone issue, above touches only a narrow aspect of grounds 2, 3 and 4 of the grounds of appeal.

Even in arguing the issues and reacting to the appellant’s counsel’s submission, learned counsel for the respondent, wrongly, in my view, also identified a rather limited aspect of the appellant’s complaint when he submitted thus:-

“there is no doubt that the main complaint of the plaintiff/appellant is that the Public Officers Protection Act does not apply to cases of contract”. That it is only an aspect of the complaint from which other elements and issues have emerged, appropriate to determining whether the action is indeed statute-barred by virtue of section 2 of the Act. These issues of substance have not been addressed in the respondent’s brief of argument.

As to the submission for the respondent that the court below was right in relying on the case of Ibrahim (supra), it seems to me that the issue in the case is not only whether the respondent is a public officer or not, but whether the limitation time prescribed by the Act is applicable to the claim. That is the issue here, which was not addressed for the respondent and by the court below. The court below went off track when it mainly pursued the issue of the definition of “public officer”, rather than also, the issue whether the action was instituted within 3 months after the act complained of or, in other words, after the cause of action arose and became statute-barred. This later issue is the crucial issue. It is indeed the real issue arising from the respondent’s objection in paragraph 22 of its statement of defence, which ought to have been determined in the ruling now appealed against, had the court below applied the test in Egbe v. Adefarasin (supra).

If the definition in the Act applies to the respondent, but the appellant filed his action within the 3 months enacted in section 2 of the Act, as I have determined that he did, then there is nothing else to argue about, and the appeal must succeed. I have however examined some of the issues and submission by counsel for the parties.

On the issue of good faith or bonafide, and/or discrimination and their connotation, raised by the parties in their pleadings and addressed in their briefs of argument, I hold the view that these cannot be addressed without evidence being adduced. It is well settled that pleadings do not amount to proof of the facts averred to, unless admitted by the opposite party, which is not the case in this matter.

As to whether the appellant’s action arose out of a transaction sounding in contract, to my mind, it is undoubtedly so. It took its root from his employment with the respondent. The decisions in the cases of Amao v. Civil Service Commission (1992) 7 NWLR (Pt. 252) 214; Santana Medical Services v. NPA, (supra) apply.

This is a second reason why the court below should not have declared the action statute-barred. The position is that despite the fact that the respondent is identified as a legal person, which can be protected by section 2(a) of the Act, it may not be protected in this case because the transaction whereof the action emanated is one sounding in contract. The courts have decided that in such actions, the public officer – party to the action, is not protected. Therefore, the 3-month period of limitation in section 2(a) of the Act does not apply.

I want to refer to the case of Ibrahim v. Judicial Service Commission (supra) relied on by the court below. That case is helpful in this case if the matter in issue is only whether section 2(a) of the Act applies to the Mining Corporation, as “a person” known to law. That is to say, if the issue is only to determine the legal personality of the Corporation in terms of the Public Officers Protection Act.

There is however more to this matter.

In my view, the corporation is no doubt a public officer. The meat and marrow of the matter herein however is really, whether the appellant brought his action within 3 months as required by section 2(a). Then, in arguing this, the appellant also raises a second point, that the suit arose from a transaction sounding in contract. He argued that by reason of the provisions of the Act and decisions of the courts, this action being one, which arose from transactions sounding in contract, section 2(a) limiting the time to file a suit against the Corporation to 3 months is inapplicable to the appellant’s suit.

I agree with that argument. To my mind, it is sound.

In Ibrahim’s case on the other hand, the appellant sought a declaration that his compulsory retirement from his appointment by the respondent by letter dated 8/2/85 was invalid, null and void etc. His action was instituted on 28/4/86. The period 8/2/85 – 28/4/86 is clearly more than 3 months. It is in the light of that, the Supreme Court determined that his case was caught by the limitation provision in the Public Officers Protection Law.

The second issue in the present suit, whether the action was rooted in contract did not arise in Ibrahim’s case. Thus as submitted for the Appellant, its application to this matter is limited.

On the whole, issue No.2 is also resolved in favour of the appellant and I find merit in the appeal. It succeeds and the ruling and Order of the Federal High Court, sitting in Jos is hereby set aside. In its place, it is hereby ordered that the action, not being statute-barred, is competent. It shall be remitted to the Federal High Court and assigned for trial on its merit before another Judge.

There will be N10,000.00 costs in favour of the appellant against the respondent.

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Other Citations: (2006)LCN/1931(CA)