Dr. G. O. Abodunrin V. The Governor Of Oyo State & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA, UWA, J.C.A. (Delivering the Leading Judgment)

The appellant was the plaintiff in the lower court. From his amended statement of claim in the Oyo State High Court, sitting at Ibadan, he claimed to have been appointed a full time member of the Oyo State Independent Electoral Commission (OSIEC) (herein after referred to as the Commission) that he had not been lawfully removed in accordance with the provisions of the 1999 Constitution of Federal Republic of Nigeria and an order of payment to him by the defendants the sum of N4,326,522.52 being salary, allowances and other entitlements for the unexpired period of his five years term of office as a member of the commission.

The defendants’ case is that the plaintiff was removed from office because of the review of the membership and composition of Oyo State independent Electoral Commission, and filed a preliminary objection dated 12th April, 2006 to the effect that the plaintiff’s action is statute barred pursuant to the provisions of Section 2(a) of the Public Officers Protection Act, CAP 41, Laws of the Federation of Nigeria, 2004 and prayed for an order striking out the suit.

The trial judge in respect of the preliminary objection, in his ruling delivered on 18th December, 2006 upheld the defendants’ preliminary objection and dismissed the plaintiff’s claim as being statute barred, pages 8 – 13 of the records.

Aggrieved by the decision, the plaintiff appealed to this court.

A sole issue was formulated by the appellant for the determination of this appeal. It is as follows:

“Whether in view of the available materials and the state of law, the lower court was right in dismissing the plaintiff’s claim on the ground that it was statute barred”.

The respondents adopted the sole issue raised by the Appellant for the determination of the Appeal. In arguing the Appeal, the learned counsel to the appellant Seni Adio Esq. with Nkechi Okoye (Miss) for the Appellant adopted and relied on the Appellant’s Brief dated 18/5/09 filed on 25/5/09, deemed filed on 7/3/13, in urging us to allow the appeal.

It was submitted on behalf of the appellant that he was under a contract of five years as a member of the Oyo State Independent Electoral Commission and was removed from office in breach of his contract of service for purpose of review of membership and composition of the commission, a ground not provided for by Section 201 of the Constitution of the Federal Republic of Nigeria, 1999 (the Constitution), the defendant was said to have admitted that the plaintiff was removed for the purpose of review of membership and composition of the plaintiff’s commission. It was contended by the appellant that the trial court taking 1st June as the date the cause of action arose was wrong.

It was argued that the removal of the plaintiff from the office was not communicated to him as at 1st June, the date the trial court held the cause of action arose even though the plaintiff claimed salaries from 1st June, 2003. We were urged to hold that the cause of action arose at the end of June, 2003 when the defendants’ refused to pay arrears of salary. It was argued that the cause of action arose at the end of June, 2003 therefore the action was not statute barred; see IROLO V. UKA (2002) 14 NWRL (pt.788) 195 at 238 C-F ARAKA V. EJEAGWU (2009) 15 NWLR (pt. 692) 684 at 718 A and IBRAHIM V. JSC (1998) 14 NWLR (pt. 584) 1 at 32 E-F.

It was further submitted that Section 2 (a) of the Public Officers Protection Act is not applicable to breach of contract cases. It was submitted that the trial court found as a fact that the plaintiff’s contract of appointment was breached by the defendants, and that Section 2(a) of the Public officers Protection Act is not applicable to breach of contract cases.

We were urged to exercise our power under Section 15 of the Court of Appeal Act to consider and determine the issue which the trial judge failed to consider and determine, see OWNERS OF THE MV. V. NAK (2008) 11 NWLR (pt. 1097) 182 at 209 C-E.

In response, the learned Counsel to the Respondents Adegboyega Salawu Esq. Principal State Counsel Oyo State Ministry of Justice appearing with Kuforiji Kehinde Esq. adopted and relied on the Respondents’ brief dated 8/4/13 filed on 12/4/13 and argued that the bone of contention is that the action is statute bared since the Suit was filed three months and twenty four days after the occurrence of the cause of action, reliance was placed on the case of EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) PAGE 1 at page 3 ration 8 where the meaning of a statute barred action was defined and Section 2(a) of the Public Officers protection Act.

It was argued that from the Appellant’s Writ of Summons, Statement of Claim and the Amended Statement of Claim, he was appointed his post by a letter dated 30th December, 1999 and was paid his salaries and allowances up to 30th day of May, 2003.