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OYADARE v. ADEYEMI COLLEGE OFEDUCATION, ONDO, ONDO STATE
CITATION: (2017) LPELR-43219(CA)
In the Court of AppealIn the Akure Judicial Division
Holden at Akure
ON TUESDAY, 14TH MARCH, 2017Suit No: CA/AK/20/2014
Before Their Lordships:
UZO IFEYINWA NDUKWE-ANYANWU Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealOBANDE FESTUS OGBUINYA Justice, Court of Appeal
BetweenMR. OLUFEMI OPEYEMI OYADARE - Appellant(s)
AndADEYEMI COLLEGE OF EDUCATION, ONDO, ONDOSTATE - Respondent(s)
RATIO DECIDENDI
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1. ACTION - CAUSE(S) OF ACTION: Effect of theabsence of a cause of action"As at 25/9/12, the cause of action, if any, had beenextinguished and did not exist any longer. Thatbeing so, the trial Court had no constitutional viresto adjudicate over the Suit as, a Court shall onlytake cognizance of existing or perceived injuries orrights as per its powers under Section 6 (6) of the1999 Constitution of the Federal Republic of Nigeria.Where there is no cause of action, a suit must bestruck out."Per DANJUMA, J.C.A. (P. 12, Paras. C-E) -read in context
2. COURT - JURISDICTION: Whether a Court is ajudge in determining its own jurisdiction"Where the jurisdiction of a Court is challenged, theCourt will under Section 6 of the 1999 Constitutionassume jurisdiction to decide whether it has thejurisdiction to entertain it. Adeleke v. O.S.H.A.(2006) 16 NWLR (Pt. 1006) pg. 608."Per NDUKWE-ANYANWU, J.C.A. (P. 6, Paras. B-C) - read in context
3. LIMITATION LAW - LIMITATION OF ACTION:Effect of a statute barred action"However, where there is a cause of action, butwhich has been defeated by its stalenessconsequent time effluxion as provided in anappropriate limitation law, as the Section 2 (a) of thePublic Officers Protection Act, Cap 41, LFN, 2004, theSuit must be dismissed, see NPA v. Lotus Plastic(2006) Vol. 134 LRCN 549 at 579kp."Per DANJUMA, J.C.A. (Pp. 12-13, Paras. E-A) - read incontext
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4. PRACTICE AND PROCEDURE - ISSUE OFJURISDICTION: Whether a question of jurisdictionmust be dealt with immediately it is raised"The question of jurisdiction has been established bya plethora of cases to be fundamental and should bedetermined first by the Court before starting anyproceedings. If the Court proceeds withoutjurisdiction, all proceedings however well conductedamount to a nullity. Ukwu v. Bunge (1997) 8 NWLR(Pt. 518) pg. 527. A.G. Lagos State v. Dosunmu(1989) 3 NWLR (Pt. 111) pg. 552. Nnonye v. Anyichie(2005) 2 NWLR (Pt. 910) pg.623."Per NDUKWE-ANYANWU, J.C.A. (Pp. 5-6, Paras. F-B) - read incontext
5. PRACTICE AND PROCEDURE - ISSUE OFJURISDICTION: How to raise an objection to thejurisdiction of Court"It is important that a party who perceives that aCourt has no jurisdiction to hear a cause must raisethe issue at the earliest opportunity. See: Nnonye v.Anyichie (supra)."Per NDUKWE-ANYANWU, J.C.A. (P.6, Paras. C-D) - read in context
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6. PUBLIC OFFICER - PUBLIC OFFICERSPROTECTION ACT: Application of the Public OfficerProtection Act"The Act allows an action against a public officer toinstitute any action against it within 3 months of theaccrual of the cause of action. See: The Minister ofPetroleum and Mineral Resources & Anor v. Expo-Shipping Line (Nig.) Ltd. (2010) LPELR-3189 whereOnnoghen, JSC stated clearlythat:"it is not the law that public officers are immunefrom suits under the Public Officers Protection Actbut that suits against them must be instituted withina stated period, otherwise they become stale."PerNDUKWE-ANYANWU, J.C.A. (Pp. 7-8, Paras. E-A) -read in context
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7. PUBLIC OFFICER - PUBLIC OFFICERSPROTECTION ACT: Whether a Public Officer can besued outside the limitation period"The Appellant in the lower Court commenced hisaction against the Respondents more than 3 monthsafter the cause of action accrued. Since the actionwas not commenced within the stipulated period, itautomatically became extinguished. This was thedecision of the Supreme Court in Egbe v. Adefarasin(1985) 1 NWLR (Pt. 3) pg. 549. Egbe v. Alhaji (1990)1 NWLR (Pt. 128). Egbe v. Yusuf (1992) NWLR (Pt.245) pg. 1.Nnamani, JSC (of blessed memory) held in the caseof Aiyetan v. The Nigerian Institute of Oil PalmResearch (1987) LPELR 275 that:"this law or Act is for the protection of public officersagainst action of persons acting in the execution ofpublic duties."Per NDUKWE-ANYANWU, J.C.A. (P. 8,Paras. B-E) - read in context
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8. PUBLIC OFFICER - PUBLIC OFFICERSPROTECTION ACT: Whether a Public Officer can besued outside the limitation period"The condition precedent in this Act is that allmatters against Public Officers must commencewithin 3 months of the accrual of the cause ofaction. Failure to commence the suit within 3months, the Statute of Limitation provided in Section2(a) of Public Officers Protection Act would beinvoked.Like rightly pointed out in Sunday v. Chief of Air Staff(2016) 1 NWLR (Pt. 1494) pg.615. per Ogbuinya,JCA, the contract of employment is also caught bySection 2(a) of Public Officers Protection Act. Seealso N.B.C. v. Bankole (1972) 4 SC pg. 94; Ibrahim v.JSC Kaduna (1998) 14 NWLR (Pt. 584) pg. 1, Bakarev. NRC (2007) 17 NWLR (Pt. 1064) pg. 606; Unijos v.Ikegwuoha (2013) 9 NWLR (Pt. 1360) pg. 478,Ugwuanyi v. NICON Ins. Plc (2013) 11 NWLR (Pt.1366) pg. 546; Yare v. NSW & IC (2013) 12 NWLR(Pt. 1367) pg. 174. Egbe v. Adefarasin (No. 2) (1987)1 NWLR (Pt. 47) pg. 1; Nasir v. C.S.C. Kano State(2010) 6 NWLR (Pt. 1190) pg. 253; Cotecna Int'l. Ltd.v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225)pg. 346; A.G. Rivers v. A.G. Bayelsa State (2013) 3NWLR (Pt. 1340) pg. 123.Since the action was instituted well over the 3months stipulated by Public Officers Protection Act,the action is therefore Statute Barred. This meansthat the Appellant has a cause of action which canno longer be ventilated in any Court of law. See:Olagunju v. PHCN Plc (2011) LPELR-2556. See alsoSection 2(a) Public Officers Protection Act."PerNDUKWE-ANYANWU, J.C.A. (Pp. 9-10, Paras. E-F) -read in context
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UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
(Delivering the Leading judgment): This is an appeal
against the ruling of the National Industrial Court, Akure
Division delivered on the 11th day of November, 2013 by
Hon. Justices A. N. Ubaka, wherein the lower Court
dismissed the Appellant's suit for being statute barred by
virtue of the provisions of Section 2(a) of the Public Officers
Protection Act.
The Appellant as Claimant instituted this action against the
Respondent as Defendants, claiming the following reliefs:-
i. A declaration that the purported dismissal of the
Appellant from the service of the Defendant by a letter
dated 6th September, 2011 is unlawful, unconstitutional,
invalid, null and void and of no effect whatsoever.
ii. An order setting aside the letter of dismissal dated 6th
September, 2011 purportedly written by the Defendant to
the Appellant.
iii. An order perpetually restraining the Defendant, their
servants, privies and agents from harassing intimidating,
dismissing and or terminating the appointment of the
Appellant on account of the facts prior to the filing of this
action or on account of the Court's
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action.
iv. N10,000,000:00 (Ten Million Naira) only general
damages for unlawful dismissal.
v. Cost of this action.
vi. Any other relief the Court may deem fit to make in the
circumstances of this case. (see page 1-2 of the record)
Upon being served with the originating processes, the
Respondent entered conditional appearance and filed a
notice of Preliminary Objection, objecting to the hearing of
the suit on the ground that:
"The Honourable trial Court lacks the jurisdiction to
entertain the Claimant's action by virtue of the
provisions of Section 2(a) of the Public Officers
Protection Act."
The application was heard. In its ruling the learned trial
judge upheld the preliminary objection and dismissed the
Appellant's action.
Dissatisfied with the ruling the Appellants filed a Notice of
Appeal on 6th December, 2013 consisting of one ground of
Appeal. In accordance with the Rules of this Court, parties
filed their respective brief of argument. The Appellant's
brief was filed on 23rd April, 2014 but deemed properly
filed on the 29th October, 2014; while the Respondent's
brief was filed on 27th January, 2015 but deemed
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properly filed on 17th May, 2016.
The Appellant, in his brief formulated a sole issue for
determination viz:
"Whether the claim of the Appellant is caught by the
provision of the Public Officers Protection Act."
The Respondent on its own part adopted the issue as
formulated by the Appellant.
SOLE ISSUE
Learned counsel for the Appellant submitted that it is trite
that the provisions of Section 2(a) of the Public Officers
Protection Act do not apply in cases of breach of contract of
employment. He relied on the cases of C.B.N. v. Adedeji
(2005) 26 WRN 38: Tolorunleke v. Armti (2009) 16
WRN 39; F.G.N. v. Zebra Eng. Ltd (2003) 3 WRN 1:
Olateju v. Comm. Land And Housing Kwara State
(2011) 12 WRN 36; Emi Ltd v. Fed. Capital Territory
(2011) 14 WRN 174: Dr. G. O. Abodunrin v. Governor
of Oyo State & 1 or (2013) 51 WRN 76: Ordia v. Gov.
Delta State (2008) 7 WRN 138; N.R.M.A.F.C. v.
Johnson (2007) 49 WRN 123.
It is the contention of counsel that the Appellant's case
being one founded on the breach of contract of
employment, the provision of Section 2(a) of the Public
Officers Protection Act is therefore not applicable to
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the instant case. He referred to paragraphs 48, 52, 53, 54,
56, 57, 58, 59, 62 and 63 of the Appellant's Statement of
facts at the lower Court.
Counsel also submitted that abuse of office and bad faith
are factors that will deprive a party who would otherwise
have been entitled to the protection of Section 2 (a) of the
Public Officers Protection Act. He relied on the case of
Offoboche v. Ogoja L.G (2001) 36 WRN 1: Kwara State
Civil Service v. Abiodun (2009) ALL FWLR (Pt. 493)
1315: Fed. College of Education v. Afam (2015) 18
WRN 171.
According to counsel, the Appellant having pleaded abuse
of office which deprived the public officer of protection
under the Act in paragraph 61 of his Statement of Facts, it
is the contention of counsel that that issue can only be
determined at the trial.
He urged this Court to allow this appeal by setting aside
the judgment of the lower Court and order the remittance
of this case to the lower Court for hearing.
Learned counsel for the Respondent on the other hand
submitted that where the words in a Statute are clear and
unambiguous, the Court is bound to give the words their
ordinary meaning. He
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contended that the words of Section 2(a) of the Public
Officers Protection Act are clear and unambiguous and that
the Section did not make exception to the applicability of
the provision to contract cases. He contended that the only
proviso in the section is in respect of action, prosecution or
proceeding that is at the instance of any person for cause
arising where such person was a convicted prisoner.
He also contended that there are Supreme Court
authorities such as Osun State Gov. v. Dalami Nig. Ltd
(2007) 148 LRCN 1311 and Yare v. N.S.W.I.C. (2013)
219 LRCN 53 where the Court did not make any exception
to the applicability of the Section with respect to contract
cases.
He thus urged this Court to resolve this issue against the
Appellant and dismiss this appeal.
RESOLUTION
The Respondent at the lower Court raised an issue of
jurisdiction i.e. whether the suit was statute barred. This
issue was treated expeditiously as the Respondent raised a
Preliminary Objection as to the competence of the suit.
The question of jurisdiction has been established by a
plethora of cases to be fundamental and should be
determined first by
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the Court before starting any proceedings. If the Court
proceeds without jurisdiction, all proceedings however well
conducted amount to a nullity. Ukwu v. Bunge (1997) 8
NWLR (Pt. 518) pg. 527. A.G. Lagos State v. Dosunmu
(1989) 3 NWLR (Pt. 111) pg. 552. Nnonye v. Anyichie
(2005) 2 NWLR (Pt. 910) pg.623.
Where the jurisdiction of a Court is challenged, the Court
will under Section 6 of the 1999 Constitution assume
jurisdiction to decide whether it has the jurisdiction to
entertain it. Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt.
1006) pg. 608.
It is important that a party who perceives that a Court has
no jurisdiction to hear a cause must raise the issue at the
earliest opportunity.
See: Nnonye v. Anyichie (supra).
The Respondent raised a Preliminary Objection in the lower
Court challenging the jurisdiction of the Court under
Section 2(a) of the Public Officers Protection Act CAP 41
LFN 2004 which provides:
"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
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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 other proceedings
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 continuance of
damage or injury, within three months next after the
ceasing thereof.
Provided that if the action, prosecution or proceeding
be at the instance of any person for cause arising
while such person was a convict prisoner, it may be
commenced within three months after the discharge
of such person from prison."
The Respondent had argued that the time to bring such an
action against it had since expired. The Statute of
Limitation provided by the Public Officers Protection Act
had taken effect.
The Act allows an action against a public officer to institute
any action against it within 3 months of the accrual of the
cause of action. See: The Minister of Petroleum and
Mineral Resources & Anor v. Expo-Shipping Line
(Nig.) Ltd. (2010) LPELR-3189 where Onnoghen, JSC
stated clearly
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that:
"it is not the law that public officers are immune from
suits under the Public Officers Protection Act but that
suits against them must be instituted within a stated
period, otherwise they become stale."
The Appellant in the lower Court commenced his action
against the Respondents more than 3 months after the
cause of action accrued. Since the action was not
commenced within the stipulated period, it automatically
became extinguished. This was the decision of the Supreme
Court in Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) pg.
549. Egbe v. Alhaji (1990) 1 NWLR (Pt. 128). Egbe v.
Yusuf (1992) NWLR (Pt. 245) pg. 1.
Nnamani, JSC (of blessed memory) held in the case of
Aiyetan v. The Nigerian Institute of Oil Palm Research
(1987) LPELR 275 that:
"this law or Act is for the protection of public officers
against action of persons acting in the execution of
public duties."
The learned jurist saw nothing which would necessitate the
exclusion of the Federal Government or any of its agents
from the application of the Act.
For avoidance of doubt, the Appellant in this appeal
instituted the case against the Respondent on 25th
September
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2012 against his termination by a letter dated 9th
September, 2009. This means that the cause of action
accrued on 9th September, 2009. Having instituted this
case on 25th September, 2012, way outside the period
envisaged by the limitation period stipulated by Public
Officers Protection Act i.e. the matter against any public
officer must be instituted within 3 months of the accrual of
the cause of action. The Appellant argued that this
provision of Section 2(a) of Public Officers Protection Act
does not apply in contracts of employment as the
Respondent had abused its office. How does the Court look
into the issue whether the Respondent abused its office?
The suit has to be competent, before the Court can assume
jurisdiction. The Court can only assume jurisdiction if the
condition precedent had been fulfilled.
The condition precedent in this Act is that all matters
against Public Officers must commence within 3 months of
the accrual of the cause of action. Failure to commence the
suit within 3 months, the Statute of Limitation provided in
Section 2(a) of Public Officers Protection Act would be
invoked.
Like rightly pointed out in Sunday v.
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Chief of Air Staff (2016) 1 NWLR (Pt. 1494) pg.615.
per Ogbuinya, JCA, the contract of employment is also
caught by Section 2(a) of Public Officers Protection Act.
See also N.B.C. v. Bankole (1972) 4 SC pg. 94; Ibrahim
v. JSC Kaduna (1998) 14 NWLR (Pt. 584) pg. 1,
Bakare v. NRC (2007) 17 NWLR (Pt. 1064) pg. 606;
Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) pg.
478, Ugwuanyi v. NICON Ins. Plc (2013) 11 NWLR (Pt.
1366) pg. 546; Yare v. NSW & IC (2013) 12 NWLR (Pt.
1367) pg. 174. Egbe v. Adefarasin (No. 2) (1987) 1
NWLR (Pt. 47) pg. 1; Nasir v. C.S.C. Kano State
(2010) 6 NWLR (Pt. 1190) pg. 253; Cotecna Int'l. Ltd.
v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225)
pg. 346; A.G. Rivers v. A.G. Bayelsa State (2013) 3
NWLR (Pt. 1340) pg. 123.
Since the action was instituted well over the 3 months
stipulated by Public Officers Protection Act, the action is
therefore Statute Barred. This means that the Appellant
has a cause of action which can no longer be ventilated in
any Court of law. See: Olagunju v. PHCN Plc (2011)
LPELR-2556. See also Section 2(a) Public Officers
Protection Act.
The learned trial Judge was therefore right when it held
that,
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the action instituted by the Appellant in the lower Court
was Statute Barred.
The sole issue is resolved against the Appellant. This appeal
is unmeritorious and therefore fails. It is dismissed. I affirm
the judgment of the lower Court.
I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been
availed the benefit of reading in draft the lead judgment
just rendered in this appeal, by my learned brother, Uzo I.
Ndukwe-Anyawu, JCA wherein His Lordship affirmed the
decision of the trial Court to the effect that the Suit,
leading to this appeal was statute barred. The Appellant's
appeal was dismissed.
I unreservedly, join in dismissing this appeal as I concur
therein.
The Appellant had taken out an action for which sundry
reliefs were sought. The details have been succinctly stated
in the lead judgment, thus obviating the need for any
repetive endeavour of a restatement. Suffice it to state,
however, that the relevant prayer (relief) that forms the
fulcrum of the issue for determination is the prayer No. 2
thereof, of the Appellant/Plaintiff which seeks thus "An
order setting
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aside the letter of dismissal dated 6th September,
2011 purportedly written by the Defendant to the
Appellant."
The cause of action which arose on 16th September, 2011
ought to have been ventilated by a suit filed within 3
months reckoned from the 6th of September, 2011.
The instant appeal is an offshoot of a suit filed on 25th
September, 2012, a period of 1 year 19 days as against
within 3 months!
As at 25/9/12, the cause of action, if any, had been
extinguished and did not exist any longer. That being so,
the trial Court had no constitutional vires to adjudicate
over the Suit as, a Court shall only take cognizance of
existing or perceived injuries or rights as per its powers
under Section 6 (6) of the 1999 Constitution of the Federal
Republic of Nigeria. Where there is no cause of action, a
suit must be struck out.
However, where there is a cause of action, but which has
been defeated by its staleness consequent time effluxion as
provided in an appropriate limitation law, as the Section 2
(a) of the Public Officers Protection Act, Cap 41, LFN,
2004, the Suit must be dismissed, see NPA v. Lotus
Plastic (2006) Vol. 134 LRCN 549
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at 579kp.
His Lordship's reasoning in the lead that, the action must
first be shown to be competent, such that it cannot be
dismissed before a consideration of whether it falls under
any of the exceptions may be gone into, is apt. I agree.
The appeal is also dismissed by me, and the trial judgment
is affirmed as in the lead.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the
opportunity to peruse, in draft, the leading judgment
delivered by my learned brother: Uzo I. Ndukwe-Anyanwu,
JCA. I endorse, in toto, the reasoning and conclusion in it. I,
too, visit a deserved dismissal on the appeal. I abide by the
consequential orders decreed in it.
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Appearances:
A. Giwa For Appellant(s)
A. A. Suleiman For Respondent(s)
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