Aroyame V. Governor Of Edo State & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellant herein was employed as an Executive Officer in the defunct Bendel State Public Service Commission on 1st November 1971. He rose to the position of Auditor General (Local Government), Edo State with effect from 25th May 1998. The 1st respondent, pursuant to powers vested in him under Section 208 of the 1999 Constitution, removed him from office as Auditor-General with effect from 1st October 2000. The information was conveyed to him via a letter dated 28th September 2000, signed by the Secretary to the State Government. By a further letter dated 29th September 2000, he was retired from the Civil Service with effect from 30th September 2000. As at 30th September 2000, he was 53 years old. It was his contention that his retirement was unlawful as he had not reached the mandatory retirement age of 60 years.

He therefore filed an Originating Summons before the High Court of Edo State holden at Benin City on 3/4/2001 praying for the following reliefs:

​a) A Declaration that the Plaintiff is entitled to continue with his service in the Edo State Civil Service until he attains the age of 60 and the unilateral act of the 1st Defendant to abridge the Plaintiff’s service years is a violation of Section 4(1) of the Pensions Act Cap. 346 Laws of the Federal Republic of Nigeria, 1990 and therefor ultra vires, unconstitutional, null and void and of no effect whatsoever.

b) A Declaration that the 1st Defendants letter number TS.2/20 dated 29th September, 2000 titled Disengagement from Service and addressed to the plaintiff purportedly abridging the plaintiff’s service years without any cause whatsoever is ultra vires, unconstitutional, null and void and of no effect whatsoever.

c) An Order of this Honourable Court setting aside the said letter,

d) An Order of this Honourable Court reinstating the Plaintiff as the Auditor General, Local Government, Edo State until he attains the compulsory retirement age of 60 years.

e) An injunction restraining the 1st Defendant whether by himself, his agents, servants or workmen however from implementing in any manner whatsoever the aforementioned letter and interfering in any manner whatsoever with the Plaintiff’s career in the Edo State Civil Service without complying with the relevant laws of the Federal Republic of Nigeria.

The Originating Summons was supported by a 17-paragraph affidavit with 8 Exhibits attached thereto. The respondents entered appearance and filed a counter-affidavit in opposition to the Summons.

By an application dated 20th October, 2003, the respondents sought an order to set down a point of law for hearing. To facilitate the speedy hearing of the suit, it was agreed that the point of law would be taken along with the hearing of the Summons.

The point of law raised was that the suit was statute-barred/ the plaintiff having failed to comply with the provisions of the Public Officers Protection Law, Laws of Bendel State 1976, applicable in Edo State, which require an action against Public Officers to be commenced within 3 months from the date the cause of action accrued.

​The learned trial Judge, in a considered judgment delivered on 27/5/2004, found and held that the suit was indeed statute-barred and struck it out. The appellant was dissatisfied with the judgment and appealed to the Court below. In a unanimous judgment delivered on 29/3/2007, the Court found the appeal to be unmeritorious and accordingly dismissed it. The judgment of the trial Court was affirmed.

The appellant is still aggrieved and he has filed a final appeal before this Court. The Amended Notice of Appeal filed on 10/1/2022 but deemed filed on 11/1/2022 contains a single ground of appeal.

At the hearing of the appeal on 11/1/2022, K.O. OBAMOGIE ESQ., adopted and relied on the Appellant’s Amended Brief of Argument filed on 10/1/2022 in urging the Court to allow the appeal. Prof. F.O. OSADOLOR, Solicitor General and Permanent Secretary, Ministry of Justice, Edo State, adopted and relied on the Respondents’ brief filed on 30/6/2009 but deemed filed on 11/1/2022, in urging the Court to dismiss the appeal.

The appellant formulated the following issue for the determination of the appeal:

“Whether the Public Officers Protection Law Cap 137, Laws of the defunct Bende/ State applicable in Edo State is applicable to the claims of the Appellant.”

The respondents’ issue reads thus:

“Whether the cause of action of the appellant is statute-barred by virtue of the provisions of the Public Officers Protection Law, Cap 137, Laws of Bendel State, now applicable to Edo State.”

The respondents’ issue is succinct and addresses the issue in contention squarely. I shall adopt it for the determination of the appeal.

In support of the issue in contention, learned counsel for the appellant concedes that the suit was instituted on 3rd April 2001, a period of about 6 months from the date the cause of action accrued. He referred to Section 2 of the Public Officers Protection Law, which provides thus:

“2. Where an action, prosecution or other proceeding is commenced against any person for an act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority the following provisions shall have effect —

(a) The action, prosecution, or proceeding shall not lie or be constituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within three months after the ceasing thereof.”

​He submitted that the law omitted to define a public officer for the purpose of the law. He sought assistance in Section 18(1) of the Interpretation Act, which defines a public officer thus:

“18(1) “Public Officer” means a member of the public service of the Federation within the meaning of the Constitution of the Federation or the public service of a Region within the meaning of the Constitution of the Region.”

He submitted that since the 1st Respondent is neither an employee of the Public Service of the Federation nor that of Edo State, he cannot be described as a public officer in any form whatsoever and is therefore not entitled to seek refuge under the Public Officers Protection Law.

He contented further that the appointment and removal of the appellant falls within the powers of the Edo State Civil Service Commission and not the 1st respondent. He submitted that for the law to avail a public officer, two conditions must be satisfied:

(a) The person must be a public officer; and

(b) The act of the public officer must be done in pursuance or execution or intended execution of a law.

​He argued that the appellant’s claim seeks redress for the breach of a contract of employment. He referred to the textbook, Chitty on Contracts Vol. II, 24th edition at paragraphs 3501 to 3671, where the learned authors described employment as a specific contract. He submitted that the decision of this Court in N.P.A Vs Construzioni Generali Farsura Cogefar SPA & Anor. (1974) 1 ALL NLR 945 would have protected the appellant’s claims had it been favourably considered. He noted that the case was followed in a subsequent decision of this Court in Osun State Government Vs Dalami Nig. Ltd. (2007) 148 LRCN 1311 @ 123; (2007) LPELR-2817 (SC) 24-25 D. He urged the Court to allow the appeal.

In response, learned counsel for the respondents submitted that the first question to be answered is whether the respondents are Public Officers within the meaning of the Public Officers Protection Law of Bendel State, applicable to Edo State. He answered in the affirmative, relying on Part II of the Fifth Schedule to the 1999 Constitution. He also referred to Section 3 of the Interpretation Law Cap 16 Vol. III, Laws of Bendel State 1976, applicable to Edo State, which defines a Public Office as:

“Every officer invested with or performing duties of a public nature, whether under the immediate control of the Governor of a State or not”

He argued that the Public Officers Protection Law (POPL) under consideration is a State law and therefore the relevant interpretation law is the Interpretation Law of Bendel State, applicable to Edo State. He referred to Section 2 of the Interpretation Law. He submitted that the Interpretation Act, on the other hand, provides for the construction and interpretation of Acts of the National Assembly. He referred to the preamble to the Act as contained in Cap 192 Vol.8 LFN 1990 as well as Sections 1 and 2 thereof.

​Learned counsel submitted that the purpose of the POPL is to protect public officers against any person for any act done in the execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, where the action is not filed within three months of the accrual of the cause of action. He submitted that the appointment and removal of the appellant falls within the powers of the 1st respondent and that the alleged injury complained of by the appellant was done by the 1st respondent in the execution of his public duty as the Chief Executive of Edo State. He submitted that the lower Court was right to so find.

He submitted that it is not in dispute that the suit was filed six months after the cause of action accrued and was therefore caught by Section 2 of the POPL. He referred to Ibrahim Vs Judicial Service Committee Kaduna State (1998) 64 LRCN 1; (1998) LPELR-1408 (SC) @ 19 C- F; (1998) 12 SC 20. He argued further that the test for the applicability of the law is not based on the status of the Public Officer but on his function and authority. He referred to: Atiyaye Vs Permanent Secretary, Borno State (1990) 1 NWLR (Pt. 129) 737 (CA). He submitted that in the absence of any malice or bad faith, the 1st respondent, acting in the performance of his public duty as in the instant case, is entitled to the protection provided under the law.

In response to the appellant’s counsel’s submissions as regards the State Civil Service Commission, he submitted that Part II of the Third Schedule to the Constitution merely sets out the composition and powers of the Commission while its establishment is pursuant to Section 197 thereof. He submitted that the power of the commission to appoint, dismiss and exercise disciplinary control over public servants is without prejudice to the powers vested in the Executive Governor of the State. He referred to Section 2 of Part II of the Third Schedule to the Constitution.

He submitted that by virtue of Section 208 (2) of the Constitution, the Governor has the power to appoint and remove, among others, the Permanent Secretary or other Chief Executive in any Ministry or Department of the Government of the State, howsoever designated. He argued that the Auditor General, Local Government is the Chief Executive in the Department of Audit, Local Government in the state and that by virtue of Section 208(5), he holds such office at the pleasure of the Governor.

On the status of the appellant’s employment as being one of specific contract and the authority of Osun State Government Vs Dalami Nig. Ltd. (supra), cited in support, he submitted that the issue does not arise from the appellant’s ground of appeal, nor is any issue formulated thereon.

​An appropriate place to commence the determination of this appeal is an understanding of the nature of a limitation law such as Section 2(a) of the Public Officers Protection Law of Bendel State, 1976 applicable to Edo State.

The effect of a limitation law was elucidated in the case of Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47)1; (1987) LPELR- 1032 (SC) @ 33 E-F, per Oputa, JSC, thus:

“A statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce.”

In Amadi & Anor vs INEC (2012) LPELR-7831 (SC) @ 31-32 D—E, it was held that the essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity but a right generally limited by statute. Thus, where the action is brought outside the prescribed period, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue. The purpose of a limitation law is to require diligent prosecution of known claims, thereby providing predictability and finality in legal affairs. See: Sulgrave Holdings Inc, & Ors Vs Federal Government of Nigeria & Ors. ​(2012) LPELR-15520 (SC) @ 36 A-D; Hassan vs Aliyu (2010) 17 NWLR (Pt. 1223) 547; Abubakar Vs Michelin Motor Services Ltd. (2020) LPELR-50837 (SC) @ 18-20 B-A; Osun State Government Vs Dalami Nig. Ltd. (supra).

In a recent decision of this Court in Sani Vs The President FRN & ANOR (2020) LPELR-50990 (SC) @ 6-7 F-A and 8-9 A-A, per Nweze, JSC, the purport of Section 2 of the Public Officers Protection Act (which provisions are in pari materia with Section 2(a) of the POPL), was further explained thus:

“The said enactment was promulgated for the protection against actions of public officers acting in the execution of public duties. It protects public officers who have acted pursuant to the duties of their offices from being harassed with litigation … It is important however to note that what the statute bars is the action and not the cause of action. Whereas the cause of action as shown above refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts … Put differently, a plaintiff’s right of action eventuates from the existence of a cause of action … In the context of this distinction, what emerges is that whereas the plaintiff’s cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him (the plaintiff) of his action, that is, his right of enforcement, the right to judicial relief… To be able therefore to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute.”

It is to be noted that abuse of office and bad faith have been held to be factors that would deprive a public officer of protection under the law. It was held in Offoboche Vs Ogoja Local Government (2001) 7 SC. (Pt.III) 107; (2001) LPELR-2265 (SC) @ 17-18 A-D per Ayoola, JSC:

“The burden is on the plaintiff to establish that the defendant has abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties, or that he acted in error of judgment, or in honest excess of his responsibility will not amount to bad faith or abuse of office.

Abuse of office is use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent to mention but a few.”

Having examined the nature and effect of a limitation law, it is appropriate at this stage to determine whether the two Courts below were right when they held that the appellant’s suit was statute barred. It is the appellant’s contention that both Courts were wrong because the 1st respondent does not fall within the purview of Public Officers protected by the law or to put it differently, that the 1st Respondent is not a public officer envisaged by the law.

​It is important to note that recourse will only be had to the Interpretation Act/Law where the applicable statute or the Constitution is unclear or does not define or explain the term or phrase in issue. Sections 176 and 195 of the 1999 Constitution, as amended, provide for the establishment of the office of the Governor of a State and the Attorney General and Commissioner for Justice of State respectively. By Section 185(1) of the Constitution, a person elected to the office of Governor of a State shall not begin to perform the functions of that office until and unless he has declared his assets and liabilities and has taken and subscribed to the Oath of Allegiance and Oath of Office prescribed in the Seventh Schedule to the Constitution. By his oath of office, a Governor swears, inter alia to abide by the Code of Conduct contained in the Fifth Schedule to the Constitution. Paragraph 19 of Part 1 of the Fifth Schedule provides:

“Public officer” means a person holding any of the offices specified in Part II of this Schedule.”

Paragraphs 4 and 6 of Part Il of the Fifth Schedule list the Governors and Deputy Governors of States and Attorney General of each State as Public Officers. There can be no doubt whatsoever that the respondents are Public Officers.

​Learned counsel for the appellant’s reliance on Section 18(1) of the Interpretation Act, which defines a public officer as a member of the public service of the Federation, as rightly observed by learned counsel for the respondent, is misconceived. The Interpretation Act is an Act of the National Assembly. In its preamble, it states inter alia that it is “an Act to provide for the construction and interpretation of Acts of the National Assembly,” Thus, it cannot be used to interpret the POPL, which is a law made by the Bendel State (now Edo State) House of Assembly.

The Interpretation Law Cap 16 Vol. Ill Laws of Bendel State 1976 applicable to Edo State, at the risk of repetition defines a Public Officer as:

“every officer invested with or performing duties of a public nature, whether under the immediate control of the Governor of a State or not.”

The Constitution of the Federal Republic of Nigeria, which is the grundnorm and the fountain from which every other law derives its legitimacy, had clearly and unambiguously defined the Governor of a State and the Attorney General of a State as Public Officers. Furthermore, as rightly held by the Court below, these officers are invested with the performance of public duties. That the 1st respondent, through the Secretary to the State Government, was performing a public duty when he dismissed the appellant from the civil service of the State.

Section 208(1) (2)(b) and (5) of the 1999 Constitution, as amended, provides thus:

“208(1) Powers to appoint persons to hold or act in the offices to which this Section applies and to remove persons so appointed from any such office shall vest in the Governor of the State.

(2) The offices to which this section applies are namely —

(a) Secretary to the Government of the State;

(b) Head of Civil Service of the State;

(c) Permanent Secretary or other Chief Executive in any Ministry or Department of the Government of the State, however designated; and

(d) any office on the personal staff of the Governor.

(5) Any appointment made pursuant to paragraphs (a) and (c) of subsection (2) of this Section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office.”

(Underlining mine for emphasis)

I am in complete agreement with learned counsel for the respondents that the Auditor General is the Chief Executive in the Department of Audit, Local Government, in the state and that the holder of that office holds it at the pleasure of the Governor. In other words, the appellant held his office at the pleasure of the Governor who had the power of appointment and removal. It is also quite evident, as held by the Court below that the letters disengaging the appellant from service were issued by the 1st respondent in the performance of his public duty.

The appellant has neither alleged nor shown that the 1st respondent acted in bad faith or in abuse of his office, or outside the scope of his authority. He is therefore entitled to the protection offered by the POPL. See: Sani Vs The President, Federal Republic of Nigeria (supra); Offoboche Vs Ogoja Local Govt. (supra).

It is not in dispute that the letters disengaging the appellant from service were issued on 28th and 29th September, 2000 respectively. The suit was filed at the trial Court on 3rd April 2001, almost six months thereafter. The two Courts below were therefore correct when they held that the action was statute barred.

The appellant has failed to advance any superior argument to warrant interference with the sound reasoning of the lower Courts.

The sole issue in contention in this appeal is resolved against the appellant and in favour of the respondents. The appeal is devoid of merit and is hereby dismissed.

The parties are to bear their respective costs.

Appeal dismissed.

SC.131/2009