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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