Professor Mvendaga Jibo V. Ministry of Education & Ors (2016)
LawGlobal-Hub Lead Judgment Report
FREDRICK OZIAKPONO OHO, J.C.A.
This is an Appeal against the decision of the Federal High Court sitting at Umuahia presided over by F. A. OLUBANJO, J in a ruling delivered on the 29th day of October, 2013 dismissing the Appellant’s case for being statute barred by virtue of the Public Officers’ Protection Act. The Plaintiff took out this action on 5th November, 2012 claiming against the Defendants jointly and severally whereupon he at paragraph 49 as follows:
1. A DECLARATION that the purported dissolution of the Governing Council of the Michael Okpara University of Agriculture, Umudike chaired by the Plaintiff by the 4th Defendant upon the advice of the 1st Defendant on 19th October, 2011 is unconstitutional, illegal, capricious, oppressive, mala fide, ultra-vires the powers of the 4th Defendant and in reckless disregard of the enabling Act, the Universities (Miscellaneous Provisions) Act 1993 (as amended) and the White Paper which did not approve the recommendation for the removal of the Plaintiff but only noted it and is therefore null and void and of no effect whatsoever.
1
2. A DECLARATION that the Plaintiff is still the Chairman of the Governing Council of the Michael Okpara University of Agriculture Umudike, Abia State, having not been officially notified in writing of any dissolution of the Council by the Visitor as required by law, Federal Civil Service Rules and Practice.
3. A DECALARATION that the tenure of the Governing Council of the Michael Okpara University of Agriculture, Umudike which the Plaintiff is the Chairman, and which tenure is for a four year period is still subsisting having commenced from February, 2009 and shall only elapse on 19th February, 2013 as prescribed by the Enabling Act, The Universities (Miscellaneous Provisions) Act, 1993 as amended.
4. A DECLARATION that the appointment of the Visitation Panel comprising the 5th to 11 Defendants by the 1st and 2nd Defendants on behalf of the 4th Defendant on 14th February, 2011 was whimsical, mala fide, with the sole aim of witch hunting the Plaintiff and therefore illegal and unconstitutional and in total disregard to the enabling Act which stipulates that a Visitation Panel shall be empanelled every five years, having being misled by the 2nd
2
Defendant.
5.A DECLARATION that the visitation panel comprising the 5th to 11th Defendant acted mala fide and under corrupt influence and was therefore biased in its findings and recommendations by singling out the Plaintiff from 20 members of the Governing Council and Principal Officers of the 3rd Defendant to recommend his removal on the ground of management style and not on the ground of corruption and incompetence, which is the only valid ground that a Chairman of Council can be removed under the enabling Act.
6. A DECLARATION that the Visitation Panel comprising the 5th to 11th Defendants and appointed by the 1st, 2nd and 4th Defendants was wrong to indict the Plaintiff for allegedly opting to stay in a hotel instead of the Pro-Chancellor?s Lodge, when available records shows that the Plaintiff stayed in the hotel based on the advice of the 3rd Defendant that the lodge was not safe due to the rampant cases of kidnappings and armed robbery in Abia State and in any case, the Plaintiff paid for the hotel from his pocket at an expense greater than his statutory Duty Tour Allowance which he as legally entitled to.
7. A DECLARATION that the
3
Visitation Panel comprising the 5th to 11th Defendants and appointed by the 1st, 2nd and 4th Defendants lacked the legal and moral justification to indict the Plaintiff for allegedly opting to stay in a hotel instead of the Pro-Chancellor?s Lodge, when available records showed that the panel corruptly collected the sum of N3,846,682.00 (Three Million, Eight Hundred and Forty Six Thousand, Six Hundred and Eight Two Naira) for feeding and accommodation from the 3 Defendant after same was already catered for the 2nd Defendant which fact was brought to the attention of the 1st Defendant by the Governing Council of the 3rd Defendant University.
8. A DECLARATION that the Visitation Panel comprising the 5th to 11th Defendants and appointed by the 1st, 2nd and 4th Defendant abused and acted outside their mandate, which was to conduct visitation into the affairs of the 3rd Defendant from 2004 ? 2010, by whimsically and capriciously expanding their scope of authority without prior lawful authorization of the appointing authority thereby delving into matters that took place in 2011 and therefore lacked the vires to make any findings, observations and
4
recommendations on such matters.
9. A DECLARATION that any findings, observations and recommendations made by the 5th ? 11th Defendant in respect of matters outside the scope of their authority and mandate, any comments and consequential action by the 1st and 4th Defendants built on such abuse of mandate as illegal, null and void and of no effect whatsoever.
10. A DECLARATION that the Governing Council of the 3rd Defendant is not a Board, Parastatal or Extra Ministerial Department but a body created by statute with a fixed term of four years and cannot be dissolved in the manner the 1st Defendant did by a blanket announcement of dissolut8ion of Board and Parastatals.
11. AN ORDER of the Honourable Court setting aside the purported dissolution of the Governing Council of the 3rd Defendant, Michael Okpara University of Agriculture, Umudike by the 1st, 2nd and 4th Defendants and restoring the Plaintiff to his position as the Chairman of the Council and directing that his allowances and emoluments from the time of the purported dissolution on 19th October, 2011, be paid in full up to the time judgment is entered.
12. The sum of Five
5
Hundred Million Naira (N500,000,000.00) exemplary and aggravated damages.
The Plaintiff also made claims in the alternative as follows;
CLAIMS MADE IN THE ALTERNATIVE;
a. The sum of Four Million, Six Hundred and Forty Thousand, Forty-Three Naira and Seventeen Kobo, (N4,640,043.17) being Special Damages for illegally and unlawfully interfering with the tenure of the Plaintiff as the Pro-Chancellor and Chairman of the Governing Council of the Michael Okpara University of Agriculture Umudike.
b. The sum of Five Hundred Million Naira (N500,000,000.00) exemplary and aggravated damages.
c. The cost of filing and prosecution this action, including filing, legal and solicitors? fees.
Upon being served with the Plaintiff?s processes the 2nd, 5th-11th Respondents/Defendants on 28-2-2013 filed a Notice of Preliminary Objection on the ground that the Plaintiff?s claim was statute barred and also that the Lower Court lacked the jurisdiction to entertain the matter which they contended is a Labour or Industrial dispute. See the motion at pages 514 to 528 of the records. In opposition of the grant of the Notice of Objection,
6
the Appellant filed a Counter-Affidavit and a written address. See pages 539-560 of the records. On the part of the 1st and 4th Respondents they filed a written address in support of the Notice of Objection. See pages 561 to 569 of the Records. Arguments were taken from learned Counsel for the parties on the 4-6-2013 and on the 29-10-2013 the learned Judge of the Lower Court delivered a considered Ruling and in the process dismissing the Plaintiff’s action in its entirety. The Court’s Ruling is at pages 584 to 601 of the printed Records of Court. The Appellant, seriously dissatisfied with the Ruling of the Federal High Court has appealed to this Court vide a Notice of Appeal dated the 11-11-2013. There are six Grounds of Appeal and from which two issues were nominated for the Court’s determination as follows;
ISSUES FOR DETERMINATION;
1. Whether or not the trial Federal High Court was right in dismissing the Appellant’s matter before it instead of transferring same to the National Industrial Court after holding that it lacked the jurisdiction to hear and determine same. (Distilled from Grounds 5 and 6 of the Grounds of
7
Appeal).
2. Whether or not the Appellant’s action was statute barred by virtue of the Public Officers’ Protection Act, in view of his allegations in his originating processes that the Respondents’ acts complained of were in bad faith, ultra vires their powers and outside the scope of their duties. (Distilled from Grounds 1, 2, 3 and 4 of the Grounds of Appeal).
On the part of the 1st and 4th Respondent only one issue was nominated for the determination of this Court as follows;
“Whether in the circumstance of this case, the learned trial Judge was right in dismissing the Appellant’s case in its entirety for being statute barred by virtue of Section 2(a) of the Public Officers Protection Act, Cap. P41 LFN 2004 in view of allegation of bad faith, exercise of ultra vires powers outside the scope of duties leveled against the 1st and 4th Respondents’. (Distilled from ground 1, 2, 3, 4, 5 and 6)
The 2nd, 5th to 11th Respondents, as well as the 3rd and 12th Respondents on their part adopted the issues nominated by the 1st and 4th Respondents and upon which they addressed Court extensively citing a plethora of
8
decided cases in support of their positions. The Appellant’s Brief was dated 20-1-2014 and filed on the same date. The Appellant’s Brief of Argument was settled by T. OSCAR AORABEE Esq. The 1st and 4th Respondent’s Brief of Argument was dated 11-12-2014 and filed on the same date. The said Brief of Argument was settled by UGWUSHIME C. IKPE (Mrs.). The 2nd, 5th to 11th Respondents Brief of Argument was dated the 10-2-2014 and filed on the 13-2-2014. The said Brief was settled by CHIDI AGOR Esq. The undated Brief of Argument of the 3rd Respondent was filed on the 23-2-2015 but deemed properly filed and served on the 25-2-2015 and settled by AGOGU WILLIAMS Esq., while the Brief of Argument of the 12th Respondent dated 28-2-2014 was filed on the 3-3-2014 and settled by CHIEF MIKE A. A. OZEKHOME, SAN. At the hearing of this Appeal on the 11-4-2016, Learned Counsel to the parties adopted and relied on their Briefs of Argument and urged the Court to decide this Appeal in favour of their clients.
ARGUMENTS OF LEARNED APPELLANT’S COUNSEL;
ISSUE ONE;
Whether or not the trial Federal High Court was right in dismissing the
9
Appellant?s matter before it instead of transferring same to the National Industrial Court after holding that it lacking the jurisdiction to hear and determine same. (Distilled from Grounds 5 and 6 of the Grounds of Appeal)
It was contended by Counsel that when a Court lacks jurisdiction to hear and determine a matter, it cannot decide the matter on its merit and in the process dismiss same or make a positive order to the benefit of either of the parties. In the instant case Counsel said that the trial Federal High Court found that it lacked the jurisdiction to hear and determine the matter and went ahead to dismiss same. Counsel said that in the process of deciding the matter the Lower Court delved into the merit of the substantive case and refused to transfer the matter to the National Industrial Court which the Court held possessed the requisite jurisdiction to hear the matter. It was submitted that it was not the duty of the trial Court to embark on a voyage of finding substance in the suit that can be transferred to the National Industrial Court of Nigerian and that when once the Court had found that it lacked the jurisdiction to adjudicate in
10
the matter it was handicapped and had only one of two options opened to it; either to strike out the matter or, in view of the provisions found in both the Federal High Court (Civil Procedure) Rules 2009 and the National Industrial Court Rule 2009 and the enabling Act, transfer the matter wholesale to the National Industrial Court.
?
It was also contended by Counsel that the settled position of the law whenever a Court is confronted with the question of whether it has jurisdiction over a matter or not, has been decided in a plethora of cases some of which Counsel cited as follows; EKWEREMADU vs. OHAJURUKA (2001) 43 WRN 53; OKOYE vs. NIGERIAN CONS. & FURNITURE CO. LTD (1991) 6 NWLR (PT. 199) 501 AT 534; INAKOJU vs. ADELEKE (2007) 4 NWLR (PT. 1025) 427 AT 574; OGBEBO vs. INEC (2005) 15 NWLR (PT. 948) 376. It was further contended that the other option apart from striking out the suit that was legally open to the trial Court was to transfer the matter to the National Industrial Court. It was argued by Counsel that under Section 24(3) of the National Industrial Court Act Cap N155 LFN 2004 and Order 3 Rule 9 of the National Industrial Court Rules the Lower
11
Court had power to transfer the suit to the National Industrial Court rather than having it struck out and that this power is in line with the extant provisions of the law and the Rules of Court on the issue. Counsel referred Court to Section 22(2) of the Federal High Court Act and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules in this regard, which mandates a Judge of the Federal High Court to transfer a matter over which it has no jurisdiction to the appropriate Court.
Learned Counsel further argued that Section 24(3) of the National Industrial Court Act also forbids the striking out of any Labour and Industrial matter by the Federal High Court or High Court of the State or Federal Capital Territory on the ground of lack of jurisdiction but to transfer it to the appropriate Division of the National Industrial Court when it provides as follows:
?24(3);
Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of the State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the
12
appropriate Court in which it ought to have been brought, and the Court before whom such a cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall be virtue of this subsection deemed also to include the power to make rules of Court for the purpose of this subsection?.
It was therefore the submission of Counsel that the above provisions, being that of an Act of the National Assembly and which is in conformity with Section 22 of the Federal High Court Act and Order 49 Rule 5 of the Federal High Court Rules is binding on the Federal High Court Judge who upon discovering that the Court lacked the jurisdiction to hear the matter was under an obligation to transfer the matter to the appropriate Division of the National Industrial Court for hearing and determination. The dismissal of the suit at the Lower Court, rather than transferring same as required by law, Counsel submitted occasioned a
13
miscarriage of justice on the Appellant and he urged this Court to decide this issue in favour of Appellant.
ISSUE TWO;
Whether or not the Appellant’s action was statute barred by virtue of the Public Officers’ Protection Act, in view of his allegations in his originating processes that the Respondents’ act complained of were in bad faith, ultra vires their powers and outside the scope of their duties. (Distilled from Grounds 1, 2, 3 and 4 of the grounds of Appeal)
On this issue, learned Counsel contended that the Public Officers’ (Protection) Act did not apply in the instant case, to limit the action at the suit of the Appellant who had alleged that the Respondents’ action complained of were in bad faith and outside the scope of their authority and duties. In this regard, Counsel referred Court to Pages 3 to 5 and 28 to 31 and of the printed records where the Plaintiff had made claims in its reliefs 8 and 9 that the Respondents had acted beyond the scope of their authorities, thus making their actions null and void and clearly excluded from one of the circumstances to which the Public Officers’ (Protection)
14
Act was applicable. Counsel said that the Plaintiff gave copious particulars of bias by the 5th to 11th Respondents of how they went off their ways to find reasons to indict him and recommended his for removal and they particularly were biased against him and singled him out for victimization even though their terms of reference required them to assess the leadership of the Governing Council and Principal Officers.
Learned Counsel told Court that during the hearing of the Notice of Preliminary Objection that attention of the trial Court was drawn to extant judicial authorities by the superior Courts of records which limit the applicability of the Public Officers (Protection) Act. To this end Counsel cited the cases of NWANKWERE vs. ADEWUNMI (1967) NMLR 45 AT 49; ALHASSAN vs. ALIYU (2011) 195 LRCN 177-178; IBRAHIM vs. JUDICIAL SERVICE COMMITTEE OF KADUNA STATE (1998) 14 NWLR (PT. 581) 1 AT 32. Learned Counsel finally urged the Court to resolve this issue in favour of the Appellant.
ARGUMENTS OF LEARNED 1st & 4th RESPONDENTS’ COUNSEL;
SOLE ISSUE;
Whether in the circumstance of this case, the learned trial Judge was right in
15
dismissing the Appellant’s case in its entirety for being statue barred by virtue of Section 2(a) of the Public Officers Protection Act, Cap. P41 LFN 2004 in view of allegation of bad faith, exercise of ultra vires powers outside the scope of duties leveled against the 1st and 4th Respondents.(Distilled from ground 1, 2, 3, 4, 5 and 6).
Learned 1st and 4th Respondents’ Counsel opened his arguments on the sole issue nominated by citing the case of SULGRAVE HOLDINGS INC & OTHERS vs. FGN & OTHERS (2012) 17 NWLR pt. 1329 P. 309 AT 334 paras B-E where the Supreme Court per GALADIMA, JSC had this to say on the issue:
“The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained of or in the case of continuing damage or injury
16
within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained. SEE FADARE vs. ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA vs. OKOYE (1964) 1 ALL NLR 96; EGBE vs. ADEFARASIN (NO 1) 1985) 1 NWLR (PT. 3) 549.”
In the instance case, Counsel argued that it is not disputed that all the Respondents are Public Officers either as natural or artificial persons in the wise of the decision of the Supreme Court in IBRAHIM vs. JUDICIAL SERVICE COMMITTEE OF KADUNA STATE (1998) 14 NWLR (PT. 584) 1. See page 595 of the Record. It was further argued by Counsel all the Respondents by virtue of their statuses as Public Officers they are entitled to the protection afforded to them by virtue of Section 2(a) of the Public Officers Protection Act Cap LFN 2004 whenever an action was not commenced within 3 months in respect of any act done in
17
pursuant and in execution of their duties. It was therefore submitted that since Section 2(a) of the Public Officers Protection Act provides for bringing of an action in respect of a cause of action accruing to the Appellant within 3 month against the Respondents (public officers), any action brought outside the prescribed period renders the said action statute barred. He cited and relied on the cases of ADIGUN vs. AYINDE (1993) 8 NWLR (PT. 313 P. 516. IBRAHIM vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT. 584) P.1; AJAYI vs. ADEBIYI & OTHERS (2012) 11 NWLR (PT. 1310) 131.
Counsel informed Court that in the instant case, the Appellant’s suit was filed on 5th November, 2012 more than three months when the cause of action accrued; the cause of action having accrued in June, 2011 when the 4th Respondent’s White Paper was released and on 19th October, 2011 when the Governing Council of the 3rd Respondent was dissolved and the Appellant relieved of his position as the Pro-Chancellor/Chairman of Council of the 3rd Respondent.
Counsel further informed Court that the grouse of the Appellant against the Ruling of the Lower
18
Court is that the Public Officers Protection Act ought not to avail the 5th-11th Respondents because in the statement of claim of the Appellant he averred that the 5th-11th Respondents acted in bad faith against him and therefore ultra-vires their power. Learned Counsel at this point queried whether a mere allegation of bad faith and ultra-vires act contained in a Statement of Claim in respect of an action filed outside three months is capable forestalling the application of the Public Officers Protection Act against the Respondents. Counsel answered this in the negative and submitted that a public officer is entitled to the protection afforded by Section 2(a) of the Public Officers Protection Act if an action is filed against him outside the three months period and that the validity or illegality of the act of a public officer would not arise for consideration unless an action was filed within the prescribed three months period. In this connection, Counsel cited the case of EGBE vs. ADEFARASIN (1985) 1 NWLR (PT. 3) 549 AT 569 where the Supreme Court held thus;
“It is on the facts clear that Appellant has no cause of action against
19
2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action ? (See ADEYEMO vs. ADEGBOYEGA & COMMISSIONER OF POLICE (1973) VOL. 3, PART 11 ECSLR. 991, OLATAWURA J). Again where the Defendant has raised an unanswered plea of protection under the Public Officers Protection Law on the uncontested facts: as 2nd Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was relevant consideration in determining the liability of the 2nd Respondent. The issue before the Court was whether the 2nd Respondent was liable. I therefore agree entirely with the Appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd Respondent was not actuated by malice. Similarly, Appellant was in error to contend that the question of the malice with respect to the conduct of the 2nd Respondent was an issue before the Court of Appeal. As I have already stated there was no cause of action against the 2nd Respondent in respect
20
of which he is answerable to the Appellant. The case of INSPECTOR-GENERAL OF POLICE vs. OLATUNJI (SUPRA) and NWANKWERE vs. ADEWUNMI (1967) N.M.L.R. AT 45 are all irrelevant to the determination of this appeal.
See also EGBE vs. ALHAJI (1989) 1 NWLR (PT. 128) 546 AT 584; AGBOOLA vs. SAIBU (1991) 2 NWLR (PT. 175) P. 566 AT 574; SULGRAVE HOLDINGS INC & OTHERS vs. FGN & OTHERS (2012) 17 NWLR (PT. 1329) P. 309 SC; FAJIMOLU vs. UNIVERSITY OF ILORIN (2007) ALL FWLR (PT. 350) 1361; NATIONAL INSURANCE COMMISSION vs. SHEHU AMINU & ANOR (2012) 2 NWLR (PT. 1302) 330.
Arising from the foregoing Counsel submitted that the element of bad faith, malice, ill motive, deliberate exercise of power without authority and such like can only be raised if the suit is filed within the three months period; putting this differently, he said that the conduct of the Public Officer as to whether it was malicious or not will be irrelevant in the determination whether the cause of action if it is statute barred under Section 2(a) of the Public Officer Protection Act if the action was filed outside the three months period. He further submitted that the learned trial
21
Judge was right when he discountenanced the allegations of bad faith, mala fide, ultra-vires acts canvassed against the Respondents by the Appellant while considering the Notice of preliminary objection against Appellant?s suit filed outside the three months period and with no evidence to substantiate the allegations made.
On the Appellant?s submission that the learned trial Judge committed a grave error in law in dismissing the entire suit instead of transferring same to National Industrial Court, Counsel told Court that the submission is totally misconceived. He said that if the suit had been brought within time the National Industrial Court would have had the jurisdiction to entertain Appellant?s action by virtue of Section 254(c)(1) of 1999 Constitution (as amended). It was therefore contended by Counsel that both the Federal High Court and National Industrial Court lacked the jurisdiction to entertain the entire claims of the Appellant as constituted in the writ of summons; that the claim of Appellant having become statute barred, the trial Court lacked the competence to sever the claims and took the right step of dismissing the
22
entire suit as there is nothing substantial to transfer to the National Industrial Court. Counsel further contended that when a Court holds that an action is statute barred, it means that it lacks jurisdiction to entertain or rule on the merit of the case. See MILITARY ADMINISTRATORS OF ONDO STATE (1997) 5 NWLR (PT. 504) 237 at 254; See also NEPA vs. OLAGUNJU (2005) 3 NWLR (PT. 913) 603. Counsel urged the Court to resolve the sole issue in favour of the 1st and 4th Respondents.
ARGUMENTS OF LEARNED 2nd, 5th to 11th RESPONDENTS’ COUNSEL;
SOLE ISSUE;
“Whether in the circumstance of this case, the learned trial Judge was right in dismissing the Appellant’s case in its entirety for being statute barred by virtue of Section 2(a) of the Public Officers Protection Act, Cap. P41 LFN 2004 in view of allegation of bad faith, exercise of ultra-vires powers outside the scope of duties levied against the 2nd, 5th to 11th Respondents. (Distilled from ground 1, 2, 3, 4, 5 and 6)
Learned Counsel began his arguments on this issue by citing the decision of the Supreme Court in the case of SULGRAVE HOLDINGS INC & OTHERS vs. FGN
23
& OTHERS (2012) 17 NWLR (PT. 1329) 309 AT 334 where GALADIMA, JSC made far reaching observations on the defense as follows;
“The Public Officers Protection Act is a statute of limitation and the import of section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any law, duty or authority, the act, prosecution or proceeding shall not lie or the instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of act, the right of enforcement act and the right to judicial relief in a Plaint. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred, and cannot be maintained. See FADARE vs. ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA vs. OKOYE (1964) 1 ALL NLR 96; EGBE vs. ADEFARASIN (NO. 1) (1985) 1 NWLR (PT.3) 549″
24
In the instant case, Counsel contended that all the Respondents are Public Officers either as natural or artificial persons in the wise of the decision of the Supreme Court in IBRAHIM vs. JUDICIAL SERVICE COMMITTEE OF KADUNA STATE (1998) 14 NWLR (PT. 584) 1. See page 595 of the Record. He said that and as such all the Respondents are entitled to the protection afforded to them by virtue of Section 2(a) of the Public Officers Protection Act Cap LFN 2004 when an action was not commenced within 3 months in respect of any act done in pursuant and in execution of their duties. According to Counsel the Appellant’s suit was filed on 5th November, 2012 more than three months when the cause of action accrued. He said that the cause of action accrued in June, 2011 when the 4th Respondent’s White Paper was released and on 19th October, 2011 when the Governing Council of the 3rd Respondent was dissolved and the Appellant relieved of his position as the Pro-Chancellor/Chairman of Council of the 3rd Respondent. Counsel submitted that the learned trial judge held that the Respondents are public officers and section 2(a) of the Public Officers
25
Protection Act protects them against the action of the Appellant. See page 595 of the Record. Learned Counsel contended that the grouse of the Appellant against the judgment of the trial Court is that the Public Officers Protection Act ought not to avail the 5th -11th Respondents because the Appellant pleaded in his statement of claim that they acted in bad faith against him and ultra vires their powers.
Counsel submitted that a public officer is entitled to the protection afforded by Section 2(a) of the Public Officers Protection Act if an action is filed against him outside the three months period irrespective of the validity or illegality of the act of a public officer, which would also not arise for consideration unless an action was filed within the prescribed three months period. Counsel cited the case of EGBE vs. ADEFARASIN (Supra); and the cases of INSPECTOR-GENERAL OF POLICE vs. OLATUNJI (SUPRA) and NWANKWERE vs. ADEWUNMI (1967) NMLR AT 45 which Counsel said are all irrelevant to the determination of this appeal. Learned Counsel also made similar arguments as Counsel for the 1st and 4th Respondents and which would only make a repetition
26
if the substance of the argument is reproduced here. In the end however, learned Counsel urged Court to resolve this issue in favour of 2nd, 5th to 11th Respondents.
ARGUMENTS OF LEARNED 3rd RESPONDENT’S COUNSEL;
SOLE ISSUE:
Whether in the circumstance of this case, the learned trial Judge was right in dismissing the Appellant’s case in its entirety for being statute barred by virtue of Section 2(a) of the Public Officers Protection Act. Cap. P. 41 LFN 2004 in view of allegation of bad faith, exercise of ultra-vires powers outside the scope of duties leveled against the 3rd Respondent. (GROUND 1, 2, 3, 4, 5 and 6)
Learned 3rd Respondent’s Counsel having tailored his arguments on the sole issue for determination and having made similar arguments citing the same legal authorities, it would be the reverse of plausibility to repeat the whole of learned 3rd Respondent’s arguments root, stem and branch. It may however, be sufficient to simply state here that Counsel like Counsel for the other Respondents had asked this Court to resolve this issue in favour of the 3rd Respondent.
27
ARGUMENTS OF LEARNED 12th RESPONDENT?S COUNSEL;
Learned 12th Respondent Counsel also adopted the sole issue raised by the 2nd, 5th ? 11th Respondents in this Appeal and upon which he also made his arguments which are in substance same as that of the 1st and 4th and 3rd Respondents. There will therefore be no need to repeat these here, except of course the fact that Counsel urged Court to resolve this Appeal in favour of the 12th Respondent.
RESOLUTION OF APPEAL
The facts of the case are clearly not in controversy. They are very well set out in the briefs of arguments of the parties. The Appellant was the former Pro-Chancellor/Chairman of the Governing Council of the 3rd Respondent. One aspect of the matter was that he was relieved of his position following the dissolution of the Governing Council of the 3rd Respondent by the 4th Respondent on 19-10-2011. The other aspect of the matter was that the Visitation Panel constituted by the 4th Respondent to look into the affairs of the 3rd Respondent in its Report made remarks which the Applicant found distasteful. The Visitation Panel Report was released in June, 2011. Aggrieved by these developments, the Appellant
28
as Plaintiff on the 5-11-2012 instituted a suit at the Federal High Court claiming against the Respondents jointly and severally various reliefs set out in the Appellant’s Statement of Claim already reproduced in this Judgment.
Appellant’s suit at the Lower Court, however, did not see the light of day as it was dismissed in its entirety following the success of the Notice Preliminary Objection filed against the hearing of the suit by the 2nd, 5th-11th Respondents. In urging the Lower Court to strike out Appellant’s suit, the 2nd, 5th -11th Respondents canvassed two Grounds, the first of which was that the Plaintiff’s suit was statute barred; the Plaintiff having failed to commence his suit within three (3) months from the date the cause of action arose pursuant to Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 and secondly, that the Plaintiff’s reliefs 1, 2, 3, 10, 11 and 14 are related to Labour and Industrial Relations matter which the Lower Court had no business entertaining by virtue of Section 254(c) of the 1999 Constitution (As amended) as only the National Industrial Court of Nigeria can
29
entertain same. At the conclusion of hearing of the notice of objection, the Lower Court spared no moments in throwing the matter out. This has been the cause of this Appeal in this Court. The question here is was the Lower Court right in throwing out the Appellant’s suit the way it did? The answer to this question shall be made known in the course of this judgment.
The exegesis of any meaningful discourse on the Public Officers’ Protection Act must begin with the Act on the subject of 1916 which was enacted to replace the received English law of 1893 on the subject – which is a statute of general application. While the 1893 Public Authorities Protection Act was enacted to protect public authorities, in their corporate personality, when engaged in the discharge of public responsibilities imposed by parliament, the Nigerian version of 1916 was aimed at protecting public officers as individuals in the discharge of public duties. See the Long Title to the Act and MOMOH vs. OKEWALE (1977) NSCC 365, ALAPIKI vs. GOV. OF RIVERS STATE (1991) 8 NWLR (PT.211) 575. Thus, Section 2 of the Nigerian legislation provides that:
30
?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-
Limitation of time
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.?
This was the observation of the Supreme Court in the case of RUFUS ALI MOMOH vs. AFOLABI OKEWALE and ANOR (Supra) where UDOMA, JSC (as he then was) stated thus:
?It seemed to have been overlooked that there is a
difference between the titles of the two Acts. The Nigerian Act is entitled ?Public Officers Protection Act?, whilst the English statute bear the title of ?Public Authorities Protection Act?. The aims, objectives and purposes of the
two Acts are also different.
31
The intention of the British parliament in enacting the English Act was to protect public authorities engaged in the discharge of responsibilities imposed upon them by parliament. The Nigerian law was aimed at protecting public officers in the discharge of public duties.?
The Supreme Court in IBRAHIM vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1997-1998) ALL NLR 302 per IGUH, JSC expanded the protection of the Public Officer Protection Act/Law to include public authorities (unwittingly incorporate the repealed English Public Authorities Protection Act into the Public Officer Protection Act.) The Supreme Court in other words abolished the dichotomy which hitherto existed between the protection accorded to ?Public Officers? on the one hand and ?Public Offices? which did not enjoy recognition in the scheme of things before the Supreme Court?s decision. In the Court?s judgment this was what the Court said;
?It is thus clear to me that the term; Public Officer? has by law been extended to include a ?Public Department? and therefore, an artificial person, a public Officer or a public
32
body. I do not think that it can be suggested with any degree of seriousness that the Public Officer (Protection) Law Cap. 52 of the Northern Nigeria, 1963 while it protects Public Officers, cannot in the same way protect a public department, an artificial or public body, so long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap. 52 does not protect persons sued by their Official titles such as Attorney-General, Inspector General of Police or Permanent Secretary. As I have repeatedly stated, the words of the section of the law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title as against the full con of the legislation, which suggests that any suggests that any special meaning is to be given the words ‘any person in that law other than their ordinary and plain ‘meaning. I therefore find myself unable to introduce any limitation words to qualify the words ‘any person’ in the legislation is issue.”
In the case of CENTRAL BANK OF NIGERIA vs. UKPONG the Court of Appeal in the course of interpreting
33
Section 2(a) of the Public Officers (Protection) Law, Cap 106, Laws of Oyo State, 1978 which is impari materia with Section 2(a) of the Public Officers Protection Act, Laws of Kaduna State opined that:
“There are two conditions precedent to the application of Section 2(a) of the Public Officers (protection) Law. The two conditions are: (a) it must be established that the person against whom the action is commenced is a Public Officer or a person acting in the execution of public justices within the meaning of the law; and (b) the act done by the person in respect of which the action is commenced must be one done in pursuance of execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law or authority”.
The question of who is a public officer and whether his act was done in pursuance of execution of any law, public duty or authority, must be resolved before the limitation period will apply. On the question of the definition of a Public Officer it may be proper to disclose at this point that the Act did not define who a Public Officer is; but the decisions of the Nigerian Courts,
34
including the Supreme Court followed the English common law interpretation of a Public Officer in the cases of R vs. BEMBRIDGE (1783) 3 DOUG KB 32; R vs. WHITAKER (1914) KB 1283 thus:
?A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.?
Apart from this, the Interpretation Act Cap 149 LFN 1990, that also defines a Public Officer thus;
?A Public Office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.?
See the case of ASOGWA vs. CHUKWU (2003) 4 NWLR (PT. 811) 540 AT 551 where this Court per ABOKI JCA defined a Public Officer thus;
“The term Public Officer referred to in the interpretation Act can only be described to be referable to those enjoying employments with statutory flavour as reflected in Section 318 (1) of the 1999 Constitution”.
In the case of CHIEF JOHN EZE vs. DR. COSMAS I. OKECHUKWU (1998) 5 NWLR (PT. 548) 43 AT 73 the Court was of the view that a
35
‘Public Officer’ is a holder of a public office in the public sector of the economy as distinct and separate from the private sector and that he is entitled to some remuneration from the public revenue or treasury. In addition that he has some authority conferred on him by law, with a fixed tenure of office that must have some permanency or continuity; above all else that a public officer has the power to exercise some amount of sovereign authority or function of government. It is, however important to note that the ratio in the case of IBRAHIM vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (Supra) has been followed and applied in a number of cases ever since.
The word ‘Person’ for instance, was defined in the case of KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) CA 274 to mean both artificial and natural persons and includes sole or public bodies-corporate or incorporate. More importantly, the word ‘person’ is the decision of the Supreme Court in the case of UNIVERSITY OF JOS vs. IKEGWUOH (2013) 9 NWLR (PT. 1360) 478, the phrase; ‘any person’ used in Section 2 of the Act was held to apply to both
36
natural persons or human beings or persons sued in their natural names, and also artificial persons, public bodies or body of persons, whether sued by their official titles or not. See also ADIO SULEIMAN vs. KWARA STATE POLYTECHNIC (2006) LPELR-11648(CA).
On the question of when the Public Officer’s act would be said to have been done in pursuance of the execution of any law, public duty or authority, it may well be necessary to go over a few popularly decided cases on the subject preparatory to the analysis to be conducted by this Court on the subject. In the case of EKEOGU vs. ALIRI (1991) 3 NWLR (PT.179) 258 the Supreme Court held the view that the Act is designed to protect a public officer against any action, prosecution or other proceeding; and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority. In FASORO vs. MILBORNE (1923) 4 NLR 85, where a District Officer ordered a policeman to slap the Plaintiff, the suit against him was commenced three months after the incident of assault and no reasons was given for the delay in
37
commencing the action. The suit was of course rightly held to be statute barred. In the case of OBIEFUNA vs. OKOYE (1965) ALL NLR 357 the Plaintiff was injured while driving his motor bike, which was knocked down by the defendant who was in turn was driving a police truck. He commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held that his claim must fail as one that is statute-barred. The single thread, which seem to have linked majority of the cases decided under in relation to the Protection accorded the Public Officer under the provision of Section 2 of the Public Officers protection Act is that the express letters of the statute had to be adhered to despite the yearning expectation of justice by the aggrieved. See in this connection, the case of EKEOGU vs. ALIRI (Supra), the Plaintiff was injured in the eye by her class teacher in a public school. She went through different hospitals for treatment during which time three months had passed. But, quite unfortunately, she lost the eye. She sued for damages by her next friend (the mother). It was held that the
38
action was statute ? barred. Perhaps, the proper way to see the problems usually posed under the Act, is that the limitation period of three months within which actions may be brought is the crux of the matter and for which the Courts would not compromise.
In the more recent decision of the Courts on the subject, the position has not changed. See the case of – SULGRAVE HOLDINGS INC & OTHERS vs. FGN & OTHERS (2012) 17 NWLR (PT. 1329) 309 AT 334 where the Supreme Court per GALADIMA, JSC had this to say;
?The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of
39
action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained. SEE FADARE vs. ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA vs. OKOYE (1964) 1 ALL NLR 96; EGBE vs. ADEFARASIN (NO 1) 1985) 1 NWLR (PT. 3) 549.”
It may be recalled that the grouse of the Appellant against the judgment of the Lower Court is that the Public Officers Protection Act ought not to avail the 5th-11th Respondents because in the Appellant’s statement of claim it was averred that the 5th-11th Respondents acted in bad faith against him. It should perhaps, be stated here that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three months period anything short of that is bound to fail. See the case of EGBE vs. ADEFARASIN (1985) 1 (PT. 3) 549 AT 569 where the Supreme Court held as follows:
“It is on the facts clear that Appellant has no cause of
40
action against 2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action (See ADEYEMO vs. ADEGBOYEGA & COMMISSIONER OF POLICE (1973) VOL. 3, PART 11 ECSLR. 991, OLATAWURA, J.) Again where the Defendant has raised an unanswered plea of protection under the Public Officers Protection Law on the uncontested facts: as 2nd Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was relevant consideration in determining the liability of the 2nd Respondent. The issue before the Court was whether the 2nd Respondent was liable. I therefore agree entirely with the Appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd Respondent was not actuated by malice. Similarly, Appellant was in error to contend that the question of the malice with respect to the conduct of the 2nd Respondent was an issue before the Court of Appeal. As I have already stated there was no cause of action against the 2nd
41
Respondent in respect of which he is answerable to the Appellant. THE CASE OF INSPECTOR-GENERAL OF POLICE vs. OLATUNJI (SUPRA) and NWANKWERE vs. ADEWUNMI (1967) N.M.L.R. at p.45 are all irrelevant to the determination of this appeal?.
Once again in the case of EGBE vs. ALHAJI (1989) 1 NWLR (PT. 128) 546 AT 584, the Supreme Court per NNAMANI, JSC was rather straightforward on the issue when he clearly puts it across thus:
?It does appeal to me that the words used in this legislation are plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statues that statutes are to be construed in their ordinary and natural meaning of the words. See ATTORNEY-GENERAL vs. MUTUAL TONTINE WESTMISTER CHAMBER ASSOCIATION LTD (1976) 1 EX. D. 469. It is also a rule of interpretation to assume that, the legislature mean what they have actually expressed. See R. vs. BANBURY 2(a), there is no bad faith or good faith contained therein expressly. What seems to standout so vividly are the words shall not lie unless commenced within three months it seems to me that this is more a provision of limitation and is only of
42
defense in the sense that a person sued after three months can rely on it to have the suit dismissed. In my view, the mandatory provision shall not lie indicates that the action cannot be maintained or cannot take off unless brought within three months. In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty with reference to whether would mean that a public officer can even be used several years after his retirement for an action which he carried out in the execution of his public duty. That to my mind would completely destroy the main protection which the statue gives a public officer.”
On account of the facts pleaded in the Appellant’s statement of claim which learned Appellant’s Counsel seem to have made a heavy weather of, the Supreme Court per NNAMANI JSC at page 597 para F-G in EGBE vs. ALHAJI (Supra) had this to say on the subject;
43
?Not only was evidence not taken but contrary to the contention of the Appellant, the pleadings of the Plaintiff cannot be taken as admitted for Order 22 Rule 1 of the High Court of Lagos Civil Procedure Rule stated clearly that no demurrer is allowed. The application in this suit was brought under Rules 3 and 4 of the same order. It is admitted that in Order 22 of the High Court Civil Procedure Rules of Western Nigeria under which FOKO vs. FOKO (1968) NMLR 441 was decided Rule 1 has abolished demurer Nevertheless, the trial Judge in the case still held that where there is a dispute in the pleadings the Defendant must be taken as admitting the facts as stated by the Plaintiff. Finally, it is my view that there is a sense in which a distinction can be drawn between those line of cases by saying that if a Public Officer is obviously acting outside the colour of his office, or outside his statutory or constitutional duty as in Nwankwere, he loses the protection of Act without question. Where, however, he is acting within the colour of his office, he can only lose protection of the Act if he is sued within three months, and if on the evidenced in the case, he is
44
shown to have acted in pretended execution of his lawful duty, having acted from improper motives.”
In his own contributions in EGBE vs. ALHAJI (Supra) AT P. 512 UWAIS, JSC (as he then was) was rather terse when he said:
“In a civil action, when the Defendant invokes in limine, the provisions of the Public Officer Protection Act, it is not proper for the trial Court to conclude or infer from the pleadings that the protection afforded the Defendant by the Law has been vitiated by malice or bad faith. What the trial Court is obliged to decide at that stage in whether the action is maintainable and not whether the Defendant is liable.”
Arising from the foregoing, I cannot help but to agree entirely with learned Respondents Counsel on the fact that the element of bad faith, malice, ill motive, deliberate exercise of power without authority and such like can conduct raised against the Respondents can only be raised if the suit is filed within the three months period. Where the cause of action is already statute barred it would be needless waste of time under the scheme of things. In the case of FAJIMOLU vs. UNIVERSITY OF ILORIN
45
(2007) ALL FWLR (PT. 350) 1351 AT 1374-1375 this Court per OGUNWUMIJU, JCA had this to say:
“Where the protection is not raised as a shield in limine and is merely pleaded, and issues are joined and evidenced led on it by the parties, the trial Court is entitled to examined the circumstances under which the cause of action of the act complained of was performed, in order for it, in determining liability; to decide whether the protection has been vitiated by malice or bad faith.”
On this issue, the learned trial judge’s finding is contained at page 578 of the records where the Court had this to say;
“The cause of action which gave rise to the Plaintiff/Respondent’s Claim is the Government White Paper titled “Views of the Government of the Federal Republic of Nigeria on the Visitation Panel report into the Affairs of Michael Okpara University of Agriculture, Umudike 2004 to 2010′, which was printed by the Federal Government Printer, Lagos, in June 2011 (see Annexure 36 attached to the Plaintiff/Respondents Statement of Claim) and the circular dated 20-10-11 by which the 3rd
46
Defendant/Respondent?s Council was dissolved. This suit was filed on 5-11-12, over a year after the Plaintiff/Respondent?s cause of action arose. This is well in excess of the 3rd month period provided for in Section 2(a) of the Public Officers (Protection) Act (supra).?
The learned trial Judge stated at pages 599-600 of the record thus:
?Upon considering the Plaintiff/Respondent?s pleadings, he has at Paragraph 37 of the Statement of Claim, copiously enumerated the particulars of the bad faith which he alleges the Defendants exhibited to his detriment. Let me pause to note that he Plaintiff/Respondent?s Counsel appears to have conceded the fact that this suit was filed outside 3 months period allowed by Section 2(a) of the Public Officers Protection Act. His Contention is that, notwithstanding this, since the Plaintiff/Respondent had made allegations of bias against the Defendants, the Public Officers (Protection) Act does not apply in this instance. I am however, of a contrary view. And this is that motive, bad faith or deliberate exercise of power without lawful authority can only be questioned if the suit was
47
filed within the limitation period. I am fortified in holding this view by the decision of the Supreme Court in EGBE vs. ALHAJI (1989) 1 NWLR (PT. 128) P. 546 AT 596-597 per KARIBI WHYTE, JSC and of the decision of the Court of Appeal, Ilorin Division in FAJIMOLU vs. UNIVERSITY OF ILORIN (2007) ALL FWLR (PT. 350) P.1361 AT 1372-1373 per OGUNWUMIJU, JCA. Even though the Plaintiff/Respondent has made allegation of bad faith and abuse of office against the Defendants, since this suit was not filed within 3 months after his cause of action accrued, this action is statute barred. I so hold.”
On the question of the Lower Court’s failure to transfer the instant suit to the National Industrial Court and the submission of the Appellant on the issue, the learned 1st and 4th Respondent’s Counsel contended that if the suit was brought within time the National Industrial Court would have had the jurisdiction to entertain Appellant’s reliefs 1, 2, 3, 10, 11, 13 and 14 in the statement of claim by virtue of Section 254(c)(1) of 1999 Constitution (As amended) but would have lacked jurisdiction to entertain Appellant’s reliefs 4, 5,
48
6, 7, 8, 9, 12 and 15.
Perhaps, the proper way to see this issue is that the suit having become statute barred rendering both the Federal High Court and National Industrial without the requisite jurisdiction to entertain the entire claims of the Appellant as constituted in the writ of summons, the Lower Court, in agreement with learned Counsel for the 1st and 4th Respondent, cannot be said to be possessed of the jurisdiction or competence to sever the claims, and for this reason I am unable to fault the decision of the Lower Court in dismissing the matter as there is practically nothing to transfer to the National Industrial Court. The Plaintiff’s right of action having been caught by the statute of limitation literally speaking is said to have gone with the winds. In the final analysis, this Appeal is moribund and has failed and therefore dismissed with cost of Fifty-thousand (N50,000.00) against Appellant.
Other Citations: (2016)LCN/8679(CA)
