Nigerian Ports Authority V. Mr. Christopher E. Okereke (2016)

LawGlobal-Hub Lead Judgment Report

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

The appeal is against the Ruling of the Federal High Court, Lagos Division delivered by D.D. ABUTU Ag. Chief Judge on the 9th day of October 2009 wherein the Appellant?s preliminary objection was overruled and dismissed.

The Respondent herein had as Plaintiff in the lower Court instituted an action against the Appellant as Defendant wherein he claimed as follows against the Appellant:-
1. A Declaration that the Plaintiff?s dismissal of 20th April 2005 by the Defendant was wrongful and therefore null and void.
2. Re-instatement of the Plaintiff?s pension and all other benefits attached thereto.
SPECIAL DAMAGES
3. The Plaintiff?s terminal benefit- N4,000,000.00
4. Legal and Medical expenses – N2, 000,000.00
AGGRAVATED DAMAGES
5. Malicious Prosecution – N 5,000,000.00
6. False Imprisonment – N 5,000,000.00
7. Defamation – N 4,000,000.00
_______________
TOTAL N 20,000,000.00

?The facts as can be gleaned from the Respondent?s claim is that he was employed by the Respondent as

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a messenger in 1981 vide a letter of appointment dated 20-8-1981.

However, sometimes in April 2004 he was issued a query by the Appellant to show proof that the primary school certificate bearing the name, NDUKWE OCHU was actually his and not that of someone else. He duly replied to the query but got no further response from the Appellant till April 2005 when he was issued with a letter of dismissal dated 20-4-2005 and the reason given for the dismissal was that a Management Administrative panel set up to investigate case of certificate forgery found the Respondent guilty of fraud.

?He was not aware that such a panel was set up neither was he invited before it to state his own case. He wrote a number of letters through a solicitor requesting for reinstatement or payment of his entitlements but to no avail. Rather sometime in August 2005, he was arrested by the ports police and this continued a number of times. He was eventually charged to a Chief Magistrates Court where he was tried for forgery but was eventually discharged and acquitted of the offence charged in June 2008. Thereafter he gave a pre-action notice to the Appellant before

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instituting the action vide a writ of summons and statement of claim dated 25-7-2008. (Vide pages 1 to 7 of the Record
of Appeal).

The Appellant upon being served with the processes reacted by entering a conditional appearance and followed it with Notice of Preliminary Objection dated 25-8-08 and filed on 26-8-2008 wherein the following orders were sought:-
(1) An order striking out the suit for want of the Court?s jurisdiction to entertain same.
(2) And such further or other orders as the Honourable Court may deem fit to make in the circumstance.

The grounds for the said objection are that:-
(1) The jurisdiction of this Honourable Court is as delineated by Section 251 of the Constitution of the Federal Republic of Nigeria 1999.
(2) The claim of the Plaintiff in the Suit does not fall within any of the heads of claims in respect of which the section confers jurisdiction of the honourable Court.
(3) The claim of the Plaintiff on tort and or simple contract of employment is not cognizable under Section 251 of the Constitution.
(4) The Court in the circumstance has no jurisdiction and ought not to exercise

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jurisdiction to hear the suit.

The said Notice of Preliminary Objection was supported by a ten paragraph affidavit.
The Respondent opposed same by filing an 8 paragraph counter affidavit.
Written submissions were filed, and exchanged. The parties adopted and relied on their written addresses at the hearing of the Notice of Preliminary Objection on 17-6-2009.

In a ruling delivered on 9-10-2009 the lower Court overruled the Preliminary Objection and dismissed same.

This prompted the Appellant to file a Notice of Appeal dated 22-10-2009.

It was followed with an amended Notice of Appeal filed on 18-11-2010 filed pursuant to the order of this Court made on 10-11-2010.

Brief of argument were subsequently filed and served by the parties who adopted same at the hearing of the appeal on the 7-6-2016.

The Appellant?s brief of argument settled by UCHE I. OBI Esq. is dated and filed on the 18-11-2010.
While the Respondent?s brief of argument dated and filed on 13-12-2010 was settled by H.O.OGUNGBMILA Esq.

The Appellant also filed a reply brief of argument dated 24-1-2011 and filed on 27-1-2011.
?
In the

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Appellant?s brief of argument the following three issues were formulated for determination:-
(1) Whether the Respondent?s suit is statute barred on the ground that it was instituted three years after his dismissal by the Appellant.
(2) Whether the conditions precedent to the Application of the public Officer?s Protection Act are present in the Respondent?s suit against the Appellant.
(3) Whether Section 251 of the Constitution of the Federal republic of Nigeria applies to the suit of the Respondent as to confer jurisdiction on the Federal High Court.

The Respondent?s brief of argument also contains three issues formulated for determination. To wit:-
(1) Whether the Respondent?s suit is statute barred on the ground that it was instituted three years after his dismissal by the Appellant.
(2) Whether the Public Officers Protection Act renders the Respondent?s suit against the Appellant in this matter ineffective.
(3) Whether Section 251 of the Constitution of the Federal Republic of Nigeria applies to the Respondent?s suit so as to confer jurisdiction on the Federal High Court.<br< p=””

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The three issues raised by the parties are no doubt similar. In the circumstance I shall adopt that of the Appellant in the consideration of this appeal.

ISSUE 1
Herein, it was submitted by Learned Counsel for the Appellant that the suit is statute barred by virtue of the Ports Act, Cap 361 Laws of the Federation 1990 under which the suit was instituted. He added that jurisdiction of the Court is determined by the statement of claim and no other process and cited the following authorities. ADETONA VS IGELE GENERAL ENTERPRISES (2005) 3 FWLR (PT 275) 867, NIGERIAN PORTS AUTHORITY VS EYAMBA (2005) 3 FWLR (PT 1145) 1169; ASSOCIATED DISCOUNT HOUSE LTD VS AMALGAMATED TRUSTEES (2006) 3 FWLR (PT 327) 4859; I.T.P.P. LTD VS UNION BANK PLC (2006) 3 FWLR (PT 328) 5026.

Learned Counsel referred to Sections 110(1) of the Ports Act 1990 which prescribed a time limit of twelve months within which a suit can be instituted against the Appellant, and paragraph 8 of the statement of claim showing that the Respondent was dismissed on the 20th of April 2005 but the suit was instituted on 25th July 2008 which is more than three years after the cause of action arose.

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He then submitted that the said suit is therefore statute barred by virtue of Section 110(1) of the Ports Act 1990.

It was further submitted vide SAVANNAH BANK OF NIGERIA PLC VS NDIC (2005) 4 FWLR (PT 290) 1807, that the cause of action is not a continuous one because the act of dismissal which occurred in 2005 is different from his prosecution by the police and which led to a discharge and acquittal in 2008, given that the police is not the Appellant?s agent simply because a matter was reported to the police for investigation. Also cited in support is the case of ELEBANJO VS DAWODU (2006) 4 FWLR (PT 335) 5970.

ISSUE 2
Dwelling on the issue, Learned Counsel for the Appellant referred to Section 2(a) of the Public Officers? Protection Act, Cap 379, Laws of the Federation 1990 to submit that it is another reason to hold that the suit is statute barred because the Appellant being a public officer as held in OKOH VS THE NIGERIAN NAVY (2007) 1 FWLR (PT 350) 475 at 490, the suit ought to have been filed within three months after the cause of action arose.
?
It was further contended that the Appellant?s act of dismissing the

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Respondent was in the execution of public duties within the meaning of the law as prescribed in Section 2(a) of the Public Officers? Protection Act, LFN 1990.

Reliance was also placed on the case of UNDER WATER ENGINEERING LTD VS DUBEFON (1995) 6 NWLR (PT 400) 156 to argue that the fact that the Respondent was discharged and acquitted by the Court has no effect on his dismissal by the Appellant because an employee can be dismissed for good or bad reason or even no reason at all.

ISSUE 3
The Appellant did not advance any argument on issue 3. The consequence of such omission is very obvious. The said issue 3 is accordingly deemed abandoned by the Appellant. See LEMBOYE VS OGUNSIJI (1990) 6 NWLR (PT 155) 210; ARE VS IPAYE (1986) 3 NWLR (PT 29) 416; AJIBADE VS PEDRO (1992) 5 NWLR (PT 241) 257; ONAMADE VS ACB LTD (1997) 1 NWLR (PT 480) 123; IKPUKU VS IKPUKU (1991) 5 NWLR (PT 193) 511.
The law is quite trite that where an Appellant fails to advance argument on an issue he submitted for determination, such issue must be deemed abandoned. In the instant case the Appellant is therefore taken to have submitted and relied on only 1 and 2 as

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formulated in the Appellant?s brief of argument.

Responding in their own issue 1, Learned Counsel for the Respondent pointed out that reliance by the Appellant on Section 110(1) of the Ports Act Cap 361 Laws of the Federation to contend that the suit filed in the lower Court was statute barred was totally misconceived because the said Act was repealed by the Nigeria Ports Authority Decree No 38 of 1999 which came into effect on 10th May 1999. Consequently, if the cause of action accrued in 2005, the applicable law should be the Nigeria Ports Authority Act of 2004 which incidentally does not contain any provision similar to Section 110(1) of the Ports Act Cap 361 L.F.N 1990.

It was further contended that the fact that the Respondent in paragraph 2 of the statement of claim erroneously referred to the Ports Act of 1990 does not mean that it must apply to the case, same having been repealed by the Nigerian Ports Authority Decree No 38 of 1999 Cap 126 LFN 2004 which does not have the same provision as in Section 110(1) of the former Act.

He then urged the Court to resolve the issue in favour of the Respondent.
?
On issue 2 Learned Counsel

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referred to Section 18 of the interpretation Act Cap 123 LFN, 2004 to concede that the Appellant renders public services and its officers are entitled to be protected by Public Officers? Protection Act 1990.

It was then submitted that the question to be answered is whether the Appellant can benefit from the provision of the Act having regard to the nature of the matter.

This bears on the fact that not all Public Officers are automatically protected under Section 2 of the Public Officers? Protection Act, vide the Supreme Court case of NWAKWERE VS ADEWUNMI (1966) 1 ALL NLR 129 at 133; OFFOBOCHE VS OGOJA LOCAL GOVERNMENT (2001) 36 WRN 1 at 7; LAGOS CITY COUNCIL VS OGUNBIYI (1969) 1 ALL NLR 297 at 299.

Learned Counsel further posited that abuse of office and bad faith are factors that deprive a party of the protection of Section 2(a) of the Act as in this case where the panel of investigation did not bother to visit the Respondent?s school to verify the genuineness of the certificate before having him dismissed from service. Therefore the Appellant is not entitled to the shield of the Public Officers? Protection Act in the

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circumstance.

On the Respondent?s issue 3, having earlier held that the Appellant is deemed to have abandoned issue 3 in the Appellant?s brief of argument, which issue is on all four with the Respondent?s issue 3, a further discourse on same shall be absolutely unnecessary given that the absence of an issue formulated therefrom, means that the ground of appeal is also deemed abandoned. In the instant case, and as earlier stated, the Appellant?s issue 3 was formulated from grounds 1 and 2 of the Amended Notice of Appeal filed on 18-11-2010. The law is that in an appeal where no argument is offered in support of a ground of appeal the ground of appeal is deemed abandoned and should be struck out. See UKIRI V GECO-PRAKLA (NIG) LTD (2010) Vol. 43 NSCQ R 268 at 278-279.

Focus will now be centered on issues 1 and 2 as above summarised. The Appellant filed a reply brief in response to the Respondent?s submissions in his brief of argument. The said Appellant?s reply brief was filed on 27-1-11.
?
Replying on issue 1, Learned Counsel for the Appellant submitted that the fact that the Ports Act of LFN 1990 was repealed by

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the Nigerian Ports Authority Act, LFN 2004 does not change the fate of the Respondent?s suit, same having been instituted on the basis of a repealed law as he has ended up placing something on nothing and this can only result on a collapse. Therefore, by pleading a repealed statute in his statement of claim, the condition precedent for the Court to assume jurisdiction has been removed, vide MADUKOLU VS NKEMDILI Supra.

On the issue 2, Learned Counsel submitted that the act of the Appellant in dismissing the Respondent was administrative in nature and the Courts are cautious in interfering with such. He cited the case of MILITARY GOVERNOR IMO STATE VS NWAUWA (1997) 2 NWLR (PT 490) 675 where the Supreme Court listed the yardstick for the intervention of the Court in purely administrative actions.

He added that in the instant case the Appellant?s act of dismissing the Respondent is an administrative action in which the Court can only intervene under the stated guidelines because it is not in doubt that an employer has unimpeded right to dismiss its employee and he was given fair hearing having been issued with a query which he also responded

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to.

As to the issue of malicious prosecution, it was contended that all the Appellant did was to report the case of forgery to the police who conducted investigation and found it necessary to prosecuted the Respondent in Court.

This Court was then urged to hold that the Public Officers? Protection Act applies in this case.

Now with respect to issue 1, it seems not in dispute that the Ports Act Cap 361 LFN 1990 was repealed by the Nigerian Ports Authority Act LFN 2004 and the extant statute does not contain any provision similar to Section 110(1) of the Ports Act relied on by the Appellant to contend that the suit in the lower Court was statute barred.

The Appellant?s argument is that, having pleaded the said Ports Act in his statement of claim and which Act has been repealed it amounts to putting something on nothing as the condition precedent for the Court assume jurisdiction to hear the case is not there.
?
Firstly, it is clear that the Respondent commenced the suit at the lower Court in 2008 during the Regime of the Nigerian Ports Authority Act LFN 2004 which has no provision on limitation of time as was the case under the

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ports Act LFN 1990.

The only snag here was that the Respondent in paragraph 2 of his statement of claim pleaded as follows:-
2:- ?The Defendant is a Federal Government Statutory Corporation, established to oversee all the sea-ports in Nigeria, under the Ports Act (CAP 361) Laws of the Federation of Nigeria 1990, with Head Office at 26/28 Marina Road Lagos.?

It must however be noted that the fact that a party referred to a wrong statute or section of a statute in his claim does not operate to frustrate his case or deny him of the reliefs sought. See FALOBI VS FALOBI (1976) 1 NMLR 169; BELLO VS AG OYO STATE (1986) 5 NLWR 9PT 45) 828; in FORESTRY RESEARCH INSTITUTE OF NIGERIA VS MR. I. A ENAIFOGHE GOLD (2007) 11 NWLR (PT 1044) 1, the Supreme Court made it clear that a party is not to be denied any relief to which he is entitled merely because he sought the relief under the wrong rule of Court or Law/Statute. Thus, where a person is entitled to a remedy or even seeks a remedy from the Court, it is not relevant whether it is applied for under the wrong law. What matters is whether he is entitled to the remedy he seeks from the Court. See

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also EDEWOR VS UWEGBA (1987) LPELR (1009) SC.

The Apex Court has made it a constant point of admonition that Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned given that justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasioned no miscarriage of justice. See FAMFA OIL LTD VS A.G FEDERATION (2003) 18 NLWR (PT 852) 453; OKONJO VS DR. ODJE (1985) 10 SC 267.
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In the instant case, there is no single element of miscarriage of justice, neither is it shown that the Appellant was deceived, confused or misguided on the intent and purpose of the suit. The fact that it is a Federal Government Corporation is not in doubt and clearly of public knowledge. Therefore reference to the Ports Act, Cap 361 LFN 1990 which has been repealed by the Nigerian Ports Authority Act Cap 126 LFN 2004 does not constitute putting something on nothing as contended by the Appellant?s counsel.
The bottom line is that this suit having been instituted in 2008 during the regime of the Nigerian Ports Authority Act cannot be held down to

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the application of the section of a law that has been repealed long before the Respondent commenced the suit in the lower Court.

This issue is therefore resolved against the Appellant.

On issue 2(a) which is whether the condition precedent to the application of the Public Officers Protection Act are present in the Respondent?s suit against the Appellant. The said Section 2(a) provides as follows:-
2(a) where any action, prosecution, or other proceedings against any person for any act done in pursuance or 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) the action, prosecution or proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof.?
?It seems to me that the above set out provisions of the Public Officers Protection Act is quite clear and unambiguous and should accordingly be

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given its ordinary and natural meaning. There are also numerous authorities on the principle, intent and purpose of the said Act. In A.G. RIVERS STATE VS A.G. BAYELSA STATE (2012) LPELR (9336) SC. The Apex Court per GALADIMA JSC held as follows:-
?The general purpose of Section 2(a) of the Public Officers (Protection) Act which is in pari materia with Section 2(a) of the Public Officers Protection Law of Northern Nigeria 1963, is exhaustively explained by this Court in IBRAHIM VS JSC (Supra). The Act is a statute of Limitation. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff on the injured person to commence the action would have been extinguished by Law. For the Section of the Act to avail any person two conditions must be cumulatively satisfied.
These are:
(i) It must be established that the person against whom the action is commenced is a public officer or a person

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acting on the execution of public duties within the meaning of that Law.
(ii) That act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.?

See also IBRAHIM VS JSC (1998)14 NWLR (PT 584)1 where the Court held that ?any person? as provided in Section 2 of the Law are not limited to natural persons or human beings or persons sued in their personal names, and unless indicated to the contrary, it includes artificial persons, public bodies, or body of person corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not, so long as they are sued in respect of an act or acts done in pursuance or execution of any Law or any public duty or authority.

In the instant case, the Appellant?s contention is that the act of dismissal of the Respondent was an act done in the execution of public duty or authority and as such the Appellant is covered by the provisions of Section 2(a) of the Act.

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Therefore the commencement of the suit by the Respondent more than three years after the cause of action arose is clearly outside the three months period allowed by the Public Officers (Protection) Act.

The Respondent in his brief of argument did concede that the Appellant renders public Services and its officers are entitled to be protected by the Act. His disagreement is premised on the point that not all acts of public officers entitles them to the protection of the Act and that in this case the Appellant acted out of malice and bad faith by instigating the police to arrest him and have him prosecuted for the offence of forgery just few days after his lawyer served the Appellant with a pre-action notice.

There are indeed authorities to the effect that where a public officer acts outside the scope of his authority or without a semblance of legal justification he cannot claim the protection of the provisions of the Public Officers (Protection) Act. See HASSAN VS ALIYU (2010)17 NWLR (PT 1223)547, EGBE VS ALHAJI (1990)3 SC (PT 1) 63: EKEOGU VS ALIRI (1991)3 NWLR (PT 179) 258; MADAKI VS GOVERNOR OF NASARAWA STATE (2011) LPELR (5115) CA. The question

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now is whether the Act of the Appellant in dismissing the Respondent from its service was done with malice and bad faith. From the Respondents story as per his statement of claim, field on 25-7-2005. He received a query sometime in April 2004 to show proof that the primary school leaving certificate he presented and with the name ?NDUKWE OCHU? was his own. He replied the query to show why he changed his name from NDUKWE OCHU to CHRISTOPHER EKUBIRI. He did not hear anything again until he received a letter dated 20-4-2005 stating that he had been dismissed from the Appellant?s employment based on the outcome of the report of Management Administrative panel set up to investigate cases of forged certificate which found him guilty of fraud. His lawyer wrote a letter dated 9-6-2005 to the Appellant to restate him or pay his entitlements and followed it up with a reminder dated 15-7-2005 but no positive response was received, rather the Appellant sent its port police after him, and he was arrested and detained for four days and 16 months after his dismissal on 20-4-2005. The police came again, got him arrested and eventually charged him for

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forgery. The trial lasted from 2006 to 2008 when he was discharged and acquitted by the Magistrate Court, Lagos on 16-6-2008. It is based on this discharge and acquittal of the said charge of forgery of Certificate that prompted him to commence the suit filed on 25-7-2008.

To answer the question earlier raised in this Judgment, it seems to me that from the Respondent?s own story, no evidence of malice or bad faith was shown by the Appellant in the whole transaction. In the first place, he was issued with a query to explain the circumstances surrounding the difference in the name on the primary school leaving certificate and the name he currently bears. He in turn answered the query and submitted same to the Appellant.

This no doubt showed that he was given the opportunity to explain himself, in which case it cannot be held against the Appellant that it denied the Respondent fair hearing.
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It must also be pointed out that what matters in the present circumstance is not the correctness of the act of the Appellant but whether such act is outside the bounds of its public duty or authority or borne out of malice, ill will or bad faith as to

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remove it from the protection of the Act.

The Respondent was dismissed from service in 2005 and he did not challenge the dismissal till 2008 when he was discharged and acquitted of the Criminal Charge of forgery which trial cannot be an impediment to the right of the Appellant to dismiss him except it is shown that by the enabling law or rule guiding his employment certain procedures for such dismissal are to be followed and in his own case it was not so done. Albeit this can also only be challenged within the time prescribed by the Act for bringing such action against a public officer.
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To my mind, therefore, the Respondent may have a right of action but he tarried too long after the cause of action accrued before instituting the present suit at the lower Court and having found that the Appellant did not act outside the scope of its authority or without a semblance of legal justification, it can claim the protection of the public Officers Protection Act. However, this cannot be said for the other claims for malicious prosecution, false imprisonment and defamation. The said claims flow from the arrest and prosecution of the Respondent which trial

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ended in an acquittal on 12-6-2008 while this suit was filed on 25-7-2008. Whether or not the claims succeed is an entirely different issue. What matters is the justice of the case. While the Respondent was late in the claim for a declaration that his dismissal on 20-4-2005 by the Appellant is null and void, the claims for malicious prosecution, false imprisonment and defamation flows from a recent event and he acted within time and which claim should not be allowed to die with the claim for dismissal because time for the said claims begins to run after his discharge and acquittal on 13-6-08.

On the whole, this appeal succeeds in part and it is accordingly allowed in part.
(1) The Respondent?s claims under items 1 to 4 of the writ of summons are hereby struck out for being statute barred.
(2) The claim for malicious prosecution, false imprisonment and Defamation is referred back to the Federal High Court, Lagos Division for hearing and determination.
Parties to bear their costs.

Other Citations: (2016)LCN/8920(CA)