Idachaba & Ors V. University Of Agriculture, Makurdi & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Appellants were all senior staff and employees of the Respondent Institution, whose appointments were terminated at different dates from 1995 to 1999 because inter alia they were sent on various training overseas by the 1st Respondent and after the completion of their courses and allowed time, refused to return to the 1st Respondent. By an Originating Summons dated 17/7/2000, the Appellants sought the following reliefs before the Federal High Court, Abuja:

1. A declaration that there is no provision in Decree No. 48 of 1992 as amended by Decree No. 11 of 1993, that permits or allows the 1st, 2nd and 3rd defendants, their servants or agents to perform or do all or any of the functions/duties of the 4th defendant specified in Section 3(2), 6, 10, 11, 15 and 16 or any other Section of Decree No. 48 of 1992, in the absence of the 4th defendant being duty constituted and or without the approval/delegation of the 4th defendant; and consequently every action or decision taken by the 1st, 2nd and 3rd defendants which ought not to have been taken by the 4th defendant and which were taken by the

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1st, 2nd and 3rd defendants in the absence of the 4th defendant or without the approval or sanction of the 4th defendant between January 1997 – 11th July 2000 A.D; were ultra vires, null and void and of no effect whatsoever.

2. A declaration that there is no provision in Decree No. 48 of 1992 as amended by Decree No. 11 of 1993, that permits or allows the 5th defendant herein to step into the shoes and assume the role, functions and duties of the 4th defendant as specified in SS. 3(2), 6, 10, 11, 15 and 16 or any other Section of Decree No. 48 of 1992 when the said 4th defendant is not constituted and in place and consequently every approval purportedly given to the 1st, 2nd and 3rd defendants by the 5th defendant from January 1997 – 11th July 2000 A.D; on behalf of and or in place of the 4th defendant is ultra vires, null and void and a breach of Decree No. 48 of 1992 as amended.
3. An order quashing the warning letters issued to the 1st and 3rd plaintiffs, letters of suspension of the 2nd and 3rd plaintiffs from supervision of the postgraduate students, letters of termination of the appointments of the 4th, 5th and 6th plaintiffs on the grounds

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that the said warnings, suspension, termination and dismissal were done contrary to and in breach of the provisions of Decree No. 48 of 1992.

4. A declaration that the 4th-14th plaintiffs are still in employment of the 1st defendant and are entitled to their salaries, allowances and other benefits accruing thereto from the dates of their purported termination and dismissal until they leave office or removed from office in accordance with the provisions of Decree No. 48 of 1992 as amended.
5. A declaration that the 1st, 2nd and 3rd defendants herein cannot create in the 1st defendant new offices, schools, colleges, departments, units, posts, divisions and re-designating the office of the 1st plaintiff and split same into two, without the approval and sanction of the 4th defendant and consequently every such schools, colleges, departments, units, posts, divisions and re-designation of the office of the 1st plaintiff by the 1st, 2nd and 3rd defendants between January 1997 – 11th July, 2000 A.D is null and void and of no effect whatsoever.
6. An order restraining every member of the 4th defendant from ratifying or approving every action done or

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decision taken by the 1st, 2nd, 3rd and 5th defendants on behalf of or in place of the 4th defendants between January 1997 – 11th July, 2000 A.D.

7. Any other legal or equitable remedies that this Hon. Court may deem fit to grant in the circumstances of this case.

Before the Originating Summons was heard, the 1st-4th Respondents filed a motion on notice for the dismissal of the suit on the grounds amongst others that:

1. The suit of the Appellants was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act, Cap. 379, LFN, 1990, and
2. The Court lacks jurisdiction to entertain the claims of the Appellants herein by virtue of the provisions of Section 3(3) of the Public Officers Protection Act, Cap.379, LFN, 1990.

The trial Court in its ruling held that the suit of the Appellants was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act. On appeal by the Appellants to the lower Court, their case was equally dismissed, hence the appeal to this Honourable Court. The Appellants therefore, for the determination of this appeal, formulated these issues:

1. Whether the Court of Appeal

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was right to hold that the claim of the Appellants founded on contract of employment was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act, and when that called (sic) failed to consider all issues submitted for adjudication.

2. Whether the Court of Appeal was right to hold that the jurisdiction of the trial Federal High Court was ousted by virtue of the provisions of Decree No. 17 of 1984.

I shall consider this appeal on a combined issue formulated thus:

ISSUE FOR DETERMINATION:

Whether the action of the Appellants was caught by Section 2 (a) of the Public Officers Protection Act and whether the lower Court was not wrong to raise the issue of the jurisdiction of the trial Federal High Court suo motu.

It was the submission of the learned Counsel to the Appellants that the action of the Appellants is not barred by Section 2 (a) of the Public Officers Protection Act, as wrongly held by the two Courts below. His submission is that for the public officer to enjoy this protection, the acts complained of must be in execution of the law, public duty or authority and not in breach of the law. Thus, the

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disciplinary action carried out against the Appellants was done by persons not authorized to do so since Sections 15 and 16 vested the power to remove from office any academic, professional or administrative staff, in the 4th Respondent only. That the assumption of this duty by the 5th Respondent was contrary to Sections 15 & 16 of the Decree. His contention is that the removal of the Appellants was not done by the person empowered to do so.

Furthermore, he submitted that since the complaint of the Appellants was on breaches of their contracts of employment, Section 2 (a) of the Public Officers Protection Act does not apply to it. He relied variously on AMAO V. CIVIL SERVICE COMMISSION & ORS (1992) 7 NWLR (PT.252) AT 228-229, SALAKO V. L.E.D.B. 20 NLR 169, JUDICIAL SERVICE COMMISSION V. ALAKA (1982) 8-10 CA 42, ALAPIKI V. GOVERNOR OF RIVERS STATE (1991) 8 NWLR (PT.211) AT 575, OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) NWLR (PT. 1038) AT 83-84, FEDERAL GOVERNMENT OF NIGERIA V. ZEBRA ENERGY LTD (2003) FWLR (PT. 142) AT 176.

It was settled on the second issue that the decision of the lower Court suo motu that the trial Court lacked the

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jurisdiction to entertain the suit was a grave error. He argued also that the jurisdiction of the trial Federal High Court was not ousted by Section 3(3) of the Public Officers (Special Provisions) Act, CAP 381 LFN 1990, since by virtue of Section 230 of the 1979 Constitution, as amended by Decree 107 of 1993 together with Section 5(2) of Decree No.21 of 1990, the trial Federal High Court had the jurisdiction to hear the claims of the Appellants. He therefore urged this Court to invoke its power under Section 22 of the Supreme Court Act to consider this issue and resolve same in favour of the Appellants.

The 1st-4th Respondents in their joint response with the 5th Respondent on the other hand, submitted in argument that the Appellants’ suit was barred by virtue of Section 2 (a) of the Public Officers Protection Act in that their cause of action was for termination of their appointments and the splitting of the Physical Facilities Department by the 1st Respondent. Thus, that the Respondents being all public officers are entitled to the protection of Section 2 (a) of the Public Officers Protection Act. Reliance was made on LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY V. Z.O. OGUNWOBI (2006) 4 NWLR

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(PT.569) AT 589, DR. MATHIAS OKO OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 9 LRCN AT 2792.

It was submitted that since the Appellants have conceded that all the Respondents are public officers, the action of the Appellants ought to have been instituted within 3 months of the accrual of the cause of action. However, in the present case, the cause of action arose from 1995-1999 but the action was commenced about the 17/7/2000, well beyond the period of 3 months as stipulated by the Act.

It was further the contention of the learned Counsel to the Respondents that the removal of the Appellants by the Head of State and Commander in Chief of the Armed Forces of Nigeria, by an instrument dated 19/3/1999, who has the power to remove public officers pursuant to Sections 1 (1) and 4(2)(b) of the Public Officers (Special Provision) Act, LFN, 1990, was appropriate and legal. Thus, that removal by appropriate authority does not give access to Court as decided in NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 4 SCNJ 97, SHITTA-BEY V. ATTORNEY GENERAL OF THE FEDERATION (1998) 7 SCNJ 264.

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It was settled that Section 3(1)(a) of the Decree No. 48 of 1992 vested the entire supervision, control and discipline in the Federal Ministry of Agriculture, headed by the 5th Respondent and as at the time of the removal of the Appellants, the Council of the 1st Respondent was not in place. It was contended that since the institution of the Appellants’ action was done between 7 and 42 months after, outside the limitation period, it was therefore stale and barred. He cited in support EGBE V. ADEFARASIN (1985) 1 NWLR (PT.3) 549.

Furthermore, that the signing of the removal letters by Mr. M. T. Atsaka for the Acting Registrar was competent since it is trite that he who acts by another, acts himself. He cited the case of NWOSU V. IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 2 NWLR (PT. 135) 688.

It was also contended that the contract between Appellants with the Respondents was contract of service and not contract for service. Thus, for contract of service and contract of employment, Section 2 (a) of the Public Officers Protection Act applies as held conterminously in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (SUPRA) AT 236, CHRISTIAN YARE V. NATIONAL SALARIES, INCOME AND WAGES COMMISSION (2006) 2 NWLR

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(PT.965) AT 557, PHILIP OLUSEYI ADEBANJO V. OGUN SPORTS COUNCIL (2005) ALL FWLR (PT.279) AT 1337, MALLAM IBRAHIM MOHAMMED V. MRS. R.O. LAWAL (2006) 9 NWLR (PT.985) AT 421.

Again, that the removal by the Visitor, being the Head of State and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria pursuant to Section 19(a) of Decree No. 48 of 1992 was lawful.

On the second issue, the learned Counsel to the Respondents replied that although not conceding that the lower Court raised the issue of lack of jurisdiction suo motu, the Appellants must show how that has affected the judgment of the lower Court to warrant allowing the appeal. He cited in support OSENI V. DAWODU (1994) 4 SCNJ (PT.2) 209, FAMUROTI V. AGBEKE (1991) 6 SCNJ AT 64.

Besides, it was contended that the lower Court affirmed the decision of the trial Court not based on lack of jurisdiction of the trial Court but that the suit was statute barred. He therefore prayed for the resolution of this issue against the Appellants and the dismissal of the appeal.

RESOLUTION OF ISSUE:

The issue here borders on limitation of the suit filed by the Appellants against

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the Respondents. It is the law that the process filed by the Plaintiffs should be the mirror to look into in determining whether an action is caught by the statute of limitation or not. All that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Per EDOZIE, JSC in AREMO II V. ADEKANYE & ORS (2004) LPELR-544(SC) (P. 18, PARAS. B-D).

The yardsticks to determine whether an action is statute-barred are: (a) The date when the cause of action accrued. (b) The date of commencement of the suit as indicated in the writ of summons. (c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues. See Per GALADIMA, JSC in INEC V. OGBADIBO LOCAL GOVT & ORS (2015) LPELR-24839(SC) (PP. 32- 33, PARA. A).

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The Appellants, who were the Plaintiffs in this appeal commenced their action vide an Originating Summons dated 17/7/2000. See pages 3-10. In the said Summons, it was averred at page 5 paragraphs 2, 3 and 5(a) as follows:

(2). The 4th-14th plaintiffs herein were also senior staff of the University until by the publication in the “University of Agriculture Weekly News Bulletin” dated 23-27/11/98, they were purported (sic) terminated and dismissed from their employment in the University.

(3). Plaintiffs avers (sic) that the termination and the dismissal of the 4th-14th plaintiffs was due to “the recommendation of UAM Administrative Committee on Disciplinary cases that sat 3rd-5th September, 1998 and the subsequent approval of the Hon. Minister of Agriculture and Natural Resources, Abuja, on behalf of Council”.

(5). Plaintiffs aver that by Decree No. 48 of 1992 as amended by Decree No. 11 of 1993:

(a) Disciplinary proceedings and discipline of all categories of staff of the 1st defendant such as suspension from duties, issuance of warning, termination of appointments, and or dismissal from office are the exclusive preserve and duties of the 4th defendant.

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By Exhibit C, being the Weekly News bulletin dated 27/11/98, contained at pages 22-23 of the record, the purported dismissal and termination of the Appellants was published. By Exhibit C1 at page 24, “the effective date of removal of the affected Officers is as prescribed by the instrument but not later than 30th April, 1999.”

Going by the stretched date of 30/4/1999 when their termination and dismissal was published, which was subsequent or after it was communicated to them, the Appellants sued the Respondents on 17/7/2000. This is well over about 15 months thereafter. The issue of limitation of action is prescribed by different laws or Acts as applicable to the parties and the circumstances.

In the instant appeal, by the facts, pleadings and parties, it is deducible that the Appellants were employees of the 1st Respondent. It has been conceded by the Appellants already that both the Appellants and Respondents are public officers of the Federal Republic of Nigeria; the former in contract of employment or contract of service under the latter. It is without argument that they were both regulated by the Public Officers Protection Act.

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Section 2(a) of the Public Officers Protection Act states that:

2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect – (a) Limitation of time – the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after, the ceasing thereof – Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison…

Whatsoever might have brewed between the Appellants and the Respondents, what I have before me is that the Appellants’ appointments with the 1st Respondent were terminated sometime around 30/4/1999. By the above provision, they

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Appellants were by law supposed to institute their grievances, if any, within 3 months, of the purported termination of their employment. It is noted that the cause of action arose supposedly on 30/4/1999. Thus, the Appellants’ action was maintainable only within 3 months after the cause of action arose.

In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has waived or abandoned his right. See Per GALADIMA, JSC in INEC V. OGBADIBO LOCAL GOVT & ORS (2015) LPELR-24839(SC) (PP. 30- 31, PARA. D). It is therefore trite that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period.

On the illegality of the removal of the Appellants by the Head of State and Commander in Chief of the Armed Forces of Nigeria, by an instrument

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dated 19/3/1999, this question cannot hold water at all.

What the Appellants were supposed to do if the purported removal by the Head of State and Commander in Chief of the Armed Forces of Nigeria, vide the instrument of 19/3/1999, was inappropriate or illegal, was to institute an action in Court challenging the illegality or lack of authority within 3 months after their removal and not to have slept over it until the action became stale and unenforceable in law.

Besides, the removal or termination of the appointments of the Appellants was vide the circular from the Secretary to the Government of the Federation (SGF) pursuant to the Public Officers (Special Provisions) Decree, 1984, No. 17 (Instrument for Dismissal, Removal and Retirement of Certain Officers (Special Provisions) Decree, 1984), issued by the then Head of State and Commander in Chief of the Armed Forces, Gen. Abdulsalami Abubakar, dated 19/3/1999.

It is of course without question that the individual letters of Termination of Appointment of all the Appellants was signed by one M. T. ATSAKA, FOR: AG. REGISTRAR. This was pursuant to the delegated and devolved authority given and

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passed down from the then Head of State and Commander in Chief of the Armed Forces, Gen. Abdulsalami Abubakar through the SGF, down to the Acting Registrar. It is apparent that M. T. ATSAKA acted for and on behalf of the acting Registrar. He who acts by another, acts himself. See NWOSU V. IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 2 NWLR (PT.135) 688. The fact that M.T. ATSAKA acted for the Acting Registrar did not imply usurpation, denunciation or renunciation of the power of the Acting Registrar. An authority which delegates its power does not divest itself of the power. Delegation means that powers are committed to another person or body which is as a rule always subject to resumption by the power delegating. See Per MUHAMMADU LAWAL UWAIS JSC in J. O. ANAKWENZE V. LOUIS ANEKE & ORS (1985) LPELR-481(SC) (PP. 15-16, PARAS. P-B). Workings of any Government will come to a halt if there is no delegation of the exercise of power. The 5th Respondent, the Minister of Agriculture & Rural Development, can never remain in charge of implementation of decisions taken at the ministerial level. The implementation of ministry or government decisions must be

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delegated for the smooth working of government. However, a power or authority so given cannot be greater than that from which it is derived. A derived power can never be greater than that available at its source, hence the maxim – DERIVATIVA PROTESTAS NON POTEST ESSE MAJOR PRIMITIVA. These are done for general administrative purposes where discretion can be exercised.

Besides, Per AYOOLA, JSC in OFFOBOCHE V. OGOJA LG & ANOR (2001) LPELR-2265(SC) (PP. 18-19, PARA. E) opined that a person who claims the protection of Section 2(a) of the Law does not need to establish a defence of qualified privilege in order to succeed in his plea that the action is statute-barred.

Admittedly too, the Appellants averred and pleaded that as at the time of their purported discipline and removal, the 4th Respondent was not in place or constituted. See paragraph 7 at page 6. They cannot now resile from it to question the then appropriate authority that removed them. It is trite that parties are bound by their pleadings.

The Appellants’ second issue is predicated on the alleged issue of lack of jurisdiction by the trial Federal High Court to have entertained the

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suit of the Appellants, raised suo motu by the lower Court. This connection is noticeable at page 252 of the record wherein the lower Court observed in the 2nd and 3rd paragraphs thus:

However, this matter does not stop there, it will be necessary to know the legal consequences if a servant being dismissed or having his employment terminated under Decree No. 17 of 1984… hence pursuant to Section 53(3) of the Public Officers (Special Provision) Decree of 1984, the lower Court has no jurisdiction to entertain the claims of the set of appellants so dismissed or who had their employment terminated…

For the Appellants’ learned Counsel to bring this issue that the lower Court raised the issue of jurisdiction of the trial Federal High Court suo motu is to approbate and reprobate, pull the wool over the eyes of this Court, confuse matters or solicit for sympathy. Preliminarily, at the trial Court, the Respondents challenged the jurisdiction of the trial Court to entertain the suit of the Appellants based on lack of jurisdiction. See pages 59-60 and 157 respectively reflecting the motion on notice and the argument when the motion was moved in Court.

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Prayer (c) of the motion at page 60 specifically asked for an Order striking out the claims of some of the Appellants as the “Court lacks jurisdiction to entertain the matter…” It was this that spurred the ruling of the trial Court in dismissing the action of the Appellants. See page 168-170. It was the decision of the trial Court that caused the Appellants to approach the lower Court and now this Court.

It is glaring therefore that the issue of the jurisdiction of the trial Court has been from the onset. It cannot be fair to say that the lower Court raised the issue of the jurisdiction of the trial Court suo motu. It was not an issue incidental but necessary even in the present appeal.

Both the applicability of Section 2(a) of the Public Officers Protection Act and the jurisdiction of the trial Court to entertain the claims of the Appellants vis-a-vis the provision of Sections 19(9) of decree No. 48 of 1992 and provisions of Decree No. 17 of 1984 were tied together.

Of course, in considering the import and applicability of Section 2(a) of the Public Officers Protection Act on the claims of the Appellants, the lower Court by extension

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galvanized its reasoning by applying Section 53(3) of the Public Officers (Special Provisions) Decree, 1984, to declare that “the lower Court has no jurisdiction to entertain the claims of the set of appellants so dismissed…”

Furthermore, a judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. A Court is not a Zombie or robot to go along with the cliche “garbage in, garbage out”. The Court exists to determine and examine with due diligence and sense, matters before it in its pursuit of justice. Therefore, where it would enthrone injustice, the Court will not close its eyes to any irregularity however shown on the record without suo motu dealing with it. See Per PETER-ODILI, JSC in OGAR & ORS V. IGBE & ORS (2019) LPELR-48998(SC) (PP. 42-44, PARAS. C-A).

Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the

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Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO V. FRN (2013) LPELR-20184(SC) (PP. 37-38, PARAS. F-D), when he held that:

The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident.

This appeal, being the concurrent findings of the two Courts below, I cannot disturb the judgment of the lower Court. This issue is resolved against the Appellants and the appeal is hereby dismissed. Parties are to bear their costs.

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