Gladstone a. Udo V. Civil Service Commission Akwa Ibom State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

S. A. IBIYEYE, J.C.A

The Plaintiff in the Uyo Judicial Division of the High Court of Justice of Akwa Ibom State initiated an action against the three defendants by way of an Originating Summons supported by a seven paragraph affidavit sworn to by one Gladstone A. Udoh filed on 14/1/2000 in which he sought the following reliefs:

“1. A Declaration that the 1st Defendant’s letter of 23rd October,1997 dismissing the Plaintiff from the service of the Defendants is illegal, unlawful, ultra vires the Defendants and accordingly incapable of determining the employment of the Plaintiff.

2. A Declaration that the dismissal of the Plaintiff from the service of the Defendants upon the “Report of Administrative Panel to Investigate Fraudulent Payments in Oron and Etinan Sub-Treasuries from the period 1995-1996″ is ultra vires the powers of the Defendants and accordingly null and void.
3. An order re-instating the Plaintiff in the employment of the Defendants together with all his entitlements and emolument of office.
4. An injunction restraining the Defendants by themselves, servants, agents or privies from dismissing the Plaintiff in the manner stated above.”

In the same initiating process the Plaintiff raised the following questions for determination by the lower Court:

“1. Whether the defendants and particularly the 1st defendant can lawfully dismiss the Plaintiff from the Defendants’ employment based on an Administrative Panel’s Report set up to investigate fraudulent payment.

2. Whether it was constitutionally within the powers of the Defendants to have dismissed the Plaintiff based on an Administrative Panel’s Report which pronounced a verdict of guilt on the Plaintiff.
3. Whether the Plaintiff has been legally and lawfully dismissed from the employment of the Defendants by virtue of the Administrative Panel’s Report set up to investigate alleged fraudulent activities against the Plaintiff.
4. If Questions 1 – 3 are answered in the negative whether this Honourable Court cannot make an order reinstating the plaintiff in the services of the Defendants together with all his entitlements.”

The defendants in reaction to the Originating Summons, jointly filed memorandum of appearance dated 26th January, 2000. They filed a sixteen paragraph Counter Affidavit sworn to on 23rd January, 2000.

Aside the Counter Affidavit, the defendants jointly filed another affidavit titled “AFFIDAVIT IN OPPOSITION” of twelve paragraphs.

At the hearing of the originating summons by which the instant case was initiated, the learned counsel for the plaintiff and the learned counsel for the three defendants proffered submissions and arguments in support of the averments in their respective affidavits. The learned trial judge considered the submissions and arguments and in a reserved judgment at pages 70 to 76 of the record of proceedings arrived, inter alia, at the following conclusion by virtue of statutory and judicial authorities.

“1. Section 2, Public Officers Protection Law of Cross River State Cap 93 Vol. V protects both natural and statutory persons like all the defendants, in the exercise of their official duties.

2. In this case all the defendants are covered by and protected by Section 2, Public Officers Protection Law, Cap 93 Vol. V Laws of Cross River State.
3. Whereas the cause of action in this suit arose on the 23rd of October, 1997 and in as much as the Plaintiff commenced this action on the 14th of January,2000, a duration of two years and two months from the cause of action and whereas by Section 2 (a) of the Public Officers Protection Law, Laws of Cross River State which was applicable in Akwa Ibom State in 2000, the Plaintiff had a limitation period of three months from the date of the cause of action within which to institute his action but failed to do so, I hold that this action is statute barred and therefore not maintainable in Law. Equity aids the vigilant and not the indolent.
4. I accordingly dismiss the Plaintiff’s case in its entirety…”

The Plaintiff was utterly dissatisfied with the judgment of the lower Court and he appealed to this Court on two grounds of appeal.

The Plaintiff now the appellant and the defendants now the respondents in strict compliance with rules 2 and 4 of Order 6 of Court of Appeal Rules 2002 filed and exchanged briefs of argument, including a Reply brief of argument subsequently filed by the appellant.

In the appellant’s brief of argument the following two issues were distilled therein:

“(i) Whether the learned trial Judge was right in holding that the Public Officers Protection Law of Cross River State (as applicable in Akwa Ibom State) covers all forms and manners of actions including actions founded in contract.

(ii) Whether the learned trial Judge was right in failing to consider whether the defendant can validly dismiss the plaintiff from Public Service on the grounds of fraud and/or criminal allegations without first of all subjecting the plaintiff to trial in a competent Court of law or alternatively Whether an Administrative Panel which was set up by the defendants can validly try the plaintiff for criminal offences itself not being a Court of Law.”