Francis Ofili V. Civil Service Commission (2007)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the judgment of Delta State High Court No. 3, Asaba. In a judgment dated 29th January, 2004, the learned trial judge held that the Plaintiffs/Appellant’s action in Suit No. A/166/2002 was statute-barred and accordingly struck it out. In a statement of claim dated 12th September, 2002 and filed on 16th September, 2002, the plaintiff/appellant prayed for the following reliefs before the lower court.

They are:

1. “A declaration that the purported termination of the plaintiff’s appointment by a letter dated the 4th day of August, 2000, reference No. AD/C.62/5/7 is improper, invalid, null and void and of no effect whatsoever;
2. An order that the plaintiff is still in the employment of the defendant;
3. An order directing the defendant to re-instate or restore the plaintiff to his position and/or status before the purported termination without loss of salary, allowances or seniority and without prejudice to entitlements and promotions which might have accrued to him during the period of purported termination; and
4. A perpetual injunction restraining the defendant, its servants and/or agents from interfering with the plaintiff’s performance of his duties with the defendant.”

The defendant joined issues with the plaintiff in a statement of defence filed on 26/02/03 out of time with the leave of the court below.

Upon further applications sought and granted this statement of defence was to be amended and further amended on about 3 subsequent occasions. The plaintiff opened his case and testified as PW1 on 19th March, 2003. The plaintiff was cross-examined by counsel to the Defendant/Respondent on 27/5/03 and closed his case accordingly. The defence opened its case on 29/7/03. A single witness, Mr. Imilar E. John, testified as the defence witness. The defence closed its case on 30th September, 2003. After the addresses of respective learned counsel on 5th November, 2003, and on 19th November, 2003, the court adjourned and delivered its judgment on 29th January, 2004. In this judgment, the learned trial judge, Diai, J. held that:-

“…the plaintiff s action is statute barred… Having found that this action is statute-barred, it is the order of this court that the suit be and is hereby struck out.” (see page 103-104 of record of appeal).

The plaintiff was dissatisfied with this judgment and therefore filed this appeal by way of a notice of appeal dated and filed on 3rd February, 2004.

The appellant’s brief was filed on 11th April, 2005 while the respondent’s brief was filed on 6th December, 2005. The respondent’s brief was filed out of time with the leave of this court. At the hearing of the appeal before us on 20th November, 2006, respective learned counsel adopted and relied on their respective briefs. From the lone ground of appeal, learned counsel to the appellant formulated a single issue for determination in this appeal. Learned counsel to the respondent adopted the issue for determination as formulated by the appellant. The issue for determination in this appeal as formulated by the appellant is:-

“Whether the learned trial judge was right in holding that the appellant’s action was statute-barred by virtue of S.2 (a) of the Public Officers Protection Law, CAP 137 Col.5 Laws of Bendel State of Nigeria 1976 as applicable to Delta State.”

Mr. Kanu for the Appellant began with a reproduction of the provisions of S.2 (a) of the Public Officers Protection Law, CAP 137 Laws of Bendel State 1976, as applicable to Delta State (hereinafter CAP 137). He then went on to explain that the cause of action in this case was the termination of the appointment of the Appellant by the Respondent in August, 2000. He explained further that it is a fundamental principle of law that rights of parties in litigation are decided on the basis of the law in existence or in force at the time of the act in question or when the cause of action arose.

This explanation of learned counsel was supported with the decisions in OLU ROTIMI 72 ORS V. MRS. MACGREGOR (1974) 11 SC 133 at 140-141. BOLA TINUBU V. I.M.B. SECURITIES (2001) 9 SCNJ 1 at 14 and MUSTAPHA V. GOVERNOR OF LAGOS STATE & 3 ORS. (1987) 5 SC 114 at 120-121.

According to learned counsel Mr. Kanu, the law applicable to this suit when it was instituted on 14th August, 2002 was the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution). He referred to the definition of a public officer in S.19 of part 2 of the 5th Schedule. He went to a great length to list all the public officers set out in the 1999 Constitution for the purpose of Code of Conduct. Based on this listing of 16 names and offices, learned counsel argued that the definition of a public officer does not include the respondent because it is a statutory body provided by S.1(1) in part 2 of the 3rd Schedule to the 1999 Constitution. He, upon this argument, submitted that any definition of a public officer in any law which is in conflict with the definition in the Constitution, is invalid, unconstitutional and void to the extent of its inconsistency with the provisions of the Constitution. In support of this submission, learned counsel, Mr. Kanu relied on the decisions in EREKU & 5 ORS V. THE MILITARY GOVERNOR OF MID-WESTERN STATE OF NIGERIA & 3 ORS. (1974) 10 SC 59 at 74, ONYUIKE V. EASTERN STATES INTERIM ASSETS & LIABILITIES AGENCY (1974) 10 SC 77 at 88 and ADISA V. OYINWOLA & 4 ORS. (2002) 2 SCNQR (PT.2) 1264 at 1322.

Learned counsel submitted that the decision of the learned trial judge that the appellant’s suit was statute-barred is not supportable in law and he urged us to so hold. In conclusion, learned counsel maintained that the learned trial judge erred when he held that this action was statute barred and also erred when he held that the appellant’s action against the respondent was an action against a public officer which ought to have been commenced within three months of the accrual of the cause of action. He urged the court to set aside the judgment of the lower court of 29th January, 2004 and to make what he chose to call other orders as the justice of this appeal demands.

In his reply, learned counsel to the respondent opened by introducing the provision of S.2 (a). According to learned counsel, the provisions of S.2 (a) of CAP 137 are pari material with S. 2 (a) of the Public Officers Protection Act CAP 379, Laws of the Federation of Nigeria 1990 (CAP 379). He added that by these provisions, where any action is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or any public duty or authority, in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the action or proceeding shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of. He added further that any action brought after the expiration of the stipulated period of 3 months is not maintainable in law. Learned counsel referred to the case of EBOIGBE V. NNPC (1994) 5 NWLR (PT.347) 659 and submitted that because the appellant did not bring his action within 3 months, it was statute-barred by virtue of S.2(a) of CAP 137.