MR. Bathelomew Odey Oniga V. Government Of Cross River State & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Honourable Chief Judge Okoi I. Itam of the Cross River State High Court, Calabar delivered on the 22nd day of June, 2011, whereby the Appellant’s case which was commenced by Originating Summons in Suit No. HC/134/2010 was dismissed for being statute-barred.

ISSUE FOR DETERMINATION:

(1) “Whether there was no evidence on Record to show that the Governor acted Ultra vires his power thereby making the claims of the Appellant bordering on breach of Contract of Employment.

(2) Whether the Judgment of the trial Court is not a nullity, the Court having being divested of jurisdiction by virtue of Section 254 (C) (1) (a) of the 1999 Constitution (as altered) .”

On his own part, the Respondent only adopted Issue No. 2 of the Appellant and formulated one new Issue for determination thus:

(1) “Whether the Respondents can be protected by the Public Officers (Protection) Law of Cross River State, 2004, Cap P 17 as Amended in 2007 , in view of the circumstances of this case.

(2) Whether the Judgment of the trial

Court is not a nullity, the Court having been divested of jurisdiction by virtue of Section 254 (C) (1) (a) of the 1999 Constitution (as altered).”

In arguing Issue No. 1 above on whether there was no evidence on Record to show that the Governor acted Ultra vires his power thereby making the claims of the Appellant bordering on breach of contract of employment justifiable, Learned Appellant’s Counsel submitted that the trial Judge failed to consider the material averments and Exhibit pleaded before reaching a conclusion and referred to the clear provisions of Section 8 of the Fire Service Law of Cross River State, 2004.

The Appellant, he maintained, was compulsorily retired after 35 years of service while he was just 54 years of age contrary to Section 8 (1) of the Fire Service Law of Cross River State, 2004. See Buhari vs. Obasanjo (2003) 13 NWLR (Pt.941) 1, Amadi vs. NNPC (2006) 10 NWLR (Pt 674) 51, Kato vs. CBN (1991) 9 NWLR (Pt 214) 126.

According to Learned Counsel, the position of the Law is now well established that the Public Officer Protection Law can only cover acts of relevant Public Officers done within the confines of their public duty in

accordance with the relevant Statutory or Constitutional Authority bestowed on them. See Ibraham vs. JSC (1998) 14 NWLR (Pt. 584) 1 at 32 per Iguh JSC. Ekeogu vs. Aluri (1990) 1 NWLR (Pt. 120) 345.

From the above, Learned Appellant Counsel Stated that it is in evidence that the Governor acted in total disregard to the Statutory provisions and cannot be said to have acted within the confines of his public duty. As an action founded on a breach of Contract of Employment, it is excluded from the Public Officer Protection Act placing reliance on the authority of Oduko vs. Government of Ebonyi State (2004) 13 NWLR (Pt. 98l) – 503.