University Of Calabar V. Ignatius P. Umoh (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of the Federal High Court, Calabar Judicial Division, presided over by Hon. Justice A. O. Ajakaye. The said judgment was delivered on 14th November, 2002. Therein the Plaintiff/Respondent, a non-academic staff of the Defendant/Appellant was alleged to have committed gross-misconduct in that he collected money from members of the public with a promise to influence their admission contrary to the Rules and Relations which governed his employment. As a result, by a letter dated 2nd September, 2002, the plaintiff/Respondent was dismissed from the service of the Defendant for gross misconduct.

On the 30th day of July, 2004, the plaintiff/Respondent took out a writ of summons challenging his dismissal. At the end of the trial the trial Judge gave judgment in favour of the plaintiff, nullifying his dismissal and ordering his reinstatement and payment of all his salaries and allowances.

Dissatisfied with the said judgment the Defendant/Appellant filed this appeal on 13th February, 2008 on four grounds of appeal. From the said grounds of appeal, the appellant has formulated two issues for determination. The issues read as follows:-

1. Whether the learned trial Judge was right to hold that the provisions of the public Officers Protection Act had no application in this case. From grounds 1, 2 and 3 of the Grounds of Appeal).
2. Whether the learned trial Judge was right to hold that the Appellant acted ultravires in dismissing the plaintiff from their employment (From Ground 4 of the Grounds of Appeal).

On the other hand, the respondent has also formulated the following two issues for determination:-

1. Whether the Public Officers Protection Act is applicable to the dismissal of the Respondent from his employment with the appellant which act borders on contractual relationship.
2. Whether the appellant was justified in the circumstance in dismissing the Respondent from his employment and if not, was the Respondent not entitled to judgment.

The above is clear from the briefs of argument filed by both the appellant and the Respondent.

It is clear that the issues formulated in the appellant brief of argument are the same as the issues formulated in the Respondent’s brief of argument though differently worded. I will consider the issues as formulated in the appellant brief of argument.

The first issue as formulated in the appellant’s brief of argument is whether the learned trial judge was right to hold that the provisions of the Public Officers Protection Act had no application in this case.

The above is jurisdictional issue which the Defendant/Applicant raised even at the trial. It involves jurisdictional issue bordering on the competence of the action which was instituted later than three months after the cause of action arose.

The appellant counsel has referred this court to the holding of the trial Court which is as follows:-

“I must stop here to say that the provision of the law is that the provisions of the Public Protection Act is applicable to both natural persons and Institutionalized persons. A long line of authorities attest to this, one which is the case of Ibrahim Vs. Judicial Service Committee of Kaduna State (1998) 14 NWLR (Pt 584)1”

He has argued that the trial Judge, having held as above, should properly have concluded that the action was statute-barred in that the provision of the Public Officers Protection Act were applicable and enforceable against the Plaintiff/Respondent, rendering the suit incompetent.

The appellant counsel emphasized that the learned trial Judge on his own raised and considered whether the Public Officers Protection Act was applicable in cases of breach of contract. He has added that this issue was never raised by any of the parties and that even when the learned trial Judge raised it suo motu, the law enjoins him to have invited the parties to address him on that issue before giving decision on it. That the trial Judge failed to do this thereby denying the parties the right to address the court on that issue. He has concluded that in consequence the Defendant/Appellant’s right to fair hearing was breached and this occasioned a miscarriage of justice to the Defendant/Appellant against whom that issue was raised.

The appellant counsel has added that the learned trial Judge was in error when he went outside the issue in contention to hold as follows:-