Controller-general Of Prisons & Ors V. Mr. Ikponmwosa Idehen (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Respondent, an Assistant Superintendent of Prison then in charge of the Ogba Prison Farm, Oko, Benin City, was first removed from service on an allegation of theft and looting of government property, however, he was later re-instated vide letters dated 20th August 1996.

By a letter dated 15th August 1997, he was asked to proceed on his annual leave but when he resumed duty on the 29th of September 1997, he was served with a letter dated 1st September 1997, which notified him that he was dismissed from service with immediate effect for misconduct.

He took the letter to his Solicitors, and the action that led to this appeal was filed at the Federal High Court, Benin City on 11th December, 1997. His Statement of Claim was filed much later on 18th March 2002, and it was amended three times. The relevant pleading is the second Further Amended Statement of Claim filed on 13th January 2005, wherein the Respondent as Plaintiff claimed as follows in paragraph 55 –

1. A declaration that the purported dismissal of the Plaintiff by the Defendants vide letter reference No. IPS/REM/FCS/185/S.2/20 dated 1/9/97 is incompetent and in breach of the rules of natural justice and is ” therefore null and void and of no effect whatsoever.
2. An order of this Honourable Court compelling the Defendants to reinstate the Plaintiff forthwith and be paid all his arrears of salaries, wages and other entitlements from the 1st of September, 1997 up till the date of Judgment.

In the alternative to 2 above an order that the Plaintiff is entitled to salaries, wages and other allowances attached to his post as Assistant Superintendent of Prisons with effect from the date of dismissal until he attains the age of 60 years in the year 2024, and the sum of N2, 000.00 as damages. Any other equitable relief’.

The Appellants filed their Statement of Defence on 9th July 2002, and they also filed a number of processes objecting to the Respondent’s suit.

The first is a Notice of Preliminary Objection filed on 29th October 2002, wherein the lower Court was urged to dismiss the suit on Grounds that –

1. The action having been commenced after three months after the cause of action arose is contrary to Section 2 (a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria [LFN] 1990.
2. The cause of action arose on the 1st day of September 1997 and the action was filed on the 11th of December 1997, which is more than three months.
3. The action is not justiciable.

The Notice of Preliminary objection was struck out for want of diligent prosecution by G. O. Kolawole, J., but after the suit was transferred to Court 2, the Appellants filed a Motion on Notice on 29th April 2004 for –

“An Order setting down for hearing the point of law raised in paragraph 22 of the Applicants’ joint statement of Defence to wit that this suit is unamenable to the jurisdiction of this Court, as it is statute barred”.

The Application was argued before B. O. Kuewumi, J., and he held in his Ruling delivered on the 4th of November 2004 that the Public Officers Protection Act is not applicable to contracts of employment; and that the Appellants did not discharge the burden of showing that the Respondent was served with the letter of dismissal on the 1st of September 1997.

Kuewumi, J. was later transferred, and the Appellants filed yet another application on 14th December 2005, urging the lower Court presided over by C. V. Nwokorie, J. to dismiss the suit on the Grounds-

1. That the suit is statute barred, having been commenced after the three months statutory period required for the filing of this suit.
2. That the Defendants/Applicants being Public Officers are protected under the Public Officers Protection Act LFN 1990, and that-
3. The suit does not disclose any reasonable cause of action as same is a mere academic exercise, having been overtaken by effluxion of time.

However, nothing was said or done about this application before Nwokorie, J. delivered Judgment on 14th June 2006, wherein he said –

“I am bound to firstly decide on the issue of jurisdiction, because it has already been raised and commented on by both learned counsel. It is quite easy for me to dispose of it as I have already held that throughout the proceedings de novo in this Court no process was filed by any of the parties on the issue of jurisdiction based on the Public Officers Protection Act or any other grounds.

It is therefore not necessary to fall back on the said Ruling of Kuewumi, J., delivered on the 4th of November 2004….”. (Italics mine)