DR. NDUKA NICHOLAS NWANKPA -VS- AKWA IBOM STATE UNIVERSITY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

DATE: 29^TH NOVEMBER, 2018 SUIT NO: NICN/UY/26/2018

BETWEEN:

NDUKA NICHOLAS NWANKPA CLAIMANT/RESPONDENT

AND

AKWA IBOM STATE UNIVERSITY DEFENDANT/APPLICANT

PROF. ENO IBANGA

REPRESENTATION:

Kunfre B. Okon for the Claimant/Respondent.

Ekemini Udim for the Defendants/Applicants.

JUDGMENT

The Claimant was offered appointment as Lecturer 1 in the Department Mass Communication of the 1^st Defendant vide a letter dated 12^th March, 2013. By a letter dated 22^nd March, 2016 the 1^st Defendant terminated the appointment of the Claimant effective from 18^th March, 2016. Not satisfied and believing that the termination was irregular, unlawful, null and void, the Claimant filed a complaint on 2^th July, 2018 praying for the following reliefs against the Defendants:

A declaration that the purported termination of appointment of the Claimant by the Defendants vide letter dated 22^nd March, 2016 is unlawful, invalid, null and void and is contrary to the statute establishing the 1^st Defendant.
A declarationthat the procedure adopted by the Defendants to purportedly terminate the appointment of the Claimant is unconstitutional, unlawful and a gross violation of my Fundamental Human Right and it negates the principle of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP 10) Laws of the Federation of Nigeria, 1999, Sections 8 and 20 of the Akwa Ibom State University Law, 2009 and the relevant Sections of the Approved Staff Conditions of Service of Akwa Ibom State University, 2011 particularly Chapter 8 thereof.
An Orderof immediate reinstatement of the Claimant with all financial entitlements including but not limited to arrears of salary, annual leave grant and promotion arrears.
An Order directing the Defendants to jointly and severally pay the sum of N7,461,506. 73k (Seven Million, Four Hundred & Sixty-One Thousand, Five Hundred & Six Naira, Seventy-Three Kobo) only to the Claimant being the arrears of salary and annual leave grant owed the Claimant from April 2016 to June 2018.
An Order directing the Defendants to jointly and severally pay to the Claimant the sum of N268,739.43k (Two Hundred & Sixty-Eight Thousand, Seven Hundred & Thirty-Nine Naira, Forty-Three Kobo) only per month with effect from July 2018 until judgment is given.
The sum of N20,000,000.00 (Twenty Million Naira) only being general and exemplary damages for the psychological trauma and deprivation suffered by the Claimant, his wife and children as a result of the cruel, unfair and unlawful act of the Defendants.
The sum of Nl,000,000.00 (One Million Naira) only being the cost of this action.
22% interest on judgment sum from the date of judgment until final liquidation.

The Defendants entered Conditional Appearance on 10^th August, 2018 and by leave of court filed Defendants’ Statement of Defence. The Defendant filed a Notice of Preliminary Objection on the same date, pursuant to Section 1 (1) of the Public Officers Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000.

The grounds for the objection are:

By careful reading of the Claimant’s Statement of Facts, Written Statement on Oath and the reliefs contained in the Complaint filed in this court (particularly reliefs 1 and 4), the cause of action in this suit arose in March, 2016 when the Claimant became aware of the decision of the 1^st Defendant terminating his appointment.
Claimant filed this action against the Defendants for the first time on the 2^nd day of July, 2018, (a cumulative period of not less than 27 months from March, 2016 when the cause of action arose).
The Defendants are public officers and by Section 1 (1) of the Public Officers’ Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000 any action for any act, neglect or default complained against them, ought to be commenced within 3 months next after the act complained of.
The Claimant’s action was commenced more than 3 months after the cause of action arose and therefore robs this court of the jurisdiction to entertain same.

The Notice of Preliminary Objection was supported by Affidavit of 9 paragraphs with 2 exhibits and a written address settled by Ekemini Udim. In opposition the Claimant filed a Counter-Affidavit of 10 paragraphs with a written address on 17^th August, 2018 settled by Kunfre B. Okon. The Defendants also filed a Rejoinder on points of law on the 21^st September, 2018 thereby setting the stage for parties to adopt their arguments for and against the motion on 7^th November, 2018.

SUBMISSION OF DEFENDANTS/APPLICANTS

The Defendants/Applicants submitted one issue for determination:

Whether this suit commenced 27 months after the cause of action arose is still competent having regards to the provision of Section 1 (1) of the Public Officers’ Protection Law, Laws of Akwa Ibom State, 2000 which provides that all actions against public officers must be commenced not later than 3 months next after the act complained of.

The Defendants/Applicants noted that the case of the Claimant was that his employment was wrongly terminated on 22^nd March, 2016 by the Defendants on the allegation that the Claimant secured employment based on fake West African School Certificate without setting up or referring the allegation to any disciplinary committee for investigation. And that since the termination was unlawful, invalid, null and void and contrary to the statute establishing the 1^st Defendant, the Claimant was entitled to arrears of salary and annual leave to be calculated from April, 2016 to June, 2018.

It is the submission of Defendants/Applicants that from the above facts, the Claimant became aware of the termination of his employment or the cause of action since March, 2016 and that the right of action (for purpose of computation of the period of limitation) accrues and becomes actionable from the moment the complainant becomes aware of the wrong done to him. The Defendants/Applicants cited the Sifax (Nig) Ltd v. Migfo (Nig) Ltd (2018) 9 NWLR (Pt. 1623) 137 at 178, paras. E – H. It is the further submission of the Defendants/Applicants that by virtue of Section 1 (1) of the Public Officers’ Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000, the Claimant/Respondent ought to have instituted this action against the Defendants within the first three months after the cause of action arose. The Defendants/Applicants therefore submitted that since the Claimant/Respondent instituted this suit on 2^nd July, 2018, the suit was file about 27 months after the cause of action arose and therefore statute barred having not been filed within 3 months as stipulated by Section 1 (1) of the said Law.

Thereafter the Defendants/Applicants reproduced the provision of Section 1 (1) of the Public Officers’ Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000 for ease of reference:

“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any law, duty or authority, the action or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of …”

The Defendants/Applicants posited that to determine the period of limitation, the court looks at the Writ of Summons and the Statement of Claim to see when the wrong which gave the Plaintiff a cause of action was committed by comparing it with the date on which the Writ of Summons was filed referring to the Supreme Court cases of Ibrahim v. Lawal (2015) 17 NWLR (pt. 1489) 490 at 522 and Abubakar v. Bebeji Oil & Allied Products Ltd (2007) 18 NWLR (pt. 1066) 319 at 360 para. H. The Defendants/Applicants further referred to the case of Sifax (Nig) Ltd v. Migfo (Nig) Ltd (2018) 9 NWLR (pt. 1623) 137 at 170 where Amina Augie, JSC held:

“To ascertain a cause of action, the immediate materials a court should look at are the writ of summons and the averments in the statement of claim.”

For purpose of proceedings before this court, the Defendants/Applicants stated that “Complaint” takes the place of Writ of Summons while “Statement of Facts” take the place of Statement of Claim.

The Defendants/Applicants maintained that a careful look at the originating processes filed by the Claimant revealed two causes of action: the termination of appointment and the stoppage of salary which arose in in March, 2016. It is the argument of Defendants/Applicants that since it is manifest on the face of the “Complaint” that the suit was filed on 2^nd July, 2018, a period of not less than 27 months from the accrual of the cause of action, the suit is statute barred having not been filed within 3 months as stipulated by Section 1 (1) of the Public Officers Protection Law, Cap. 104, VoI. 5, Laws of Akwa Ibom State, 2000. Also in support, the Defendants/Applicants cited the case of Fred Egbe v. Justice Adefarasin (1985) 1 NWLR (pt) 549 at 568, where the Supreme Court (while considering a similar provision as cited above) held that:

“The general principle of law is that where the law provides for the bringing of an action within a prescribed period, in respect of a cause of action accruing to the Plaintiff, proceeding shall not be brought after the time prescribed by the statute.”

The Defendants/Applicants further referred the court to the case of Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1, where the Supreme Court per Iguh, JSC held that:

“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings 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 or the injured person to commence the action would have been extinguished by such law.”

The Defendants/Applicants strongly submitted that having not brought this action within 3 months next after the act complained of, the Claimant is guilty of sleeping over whatever right he may have had and therefore, the Public Officers’ Protection Law of Akwa Ibom State which is a statute of limitation renders the Claimant’s action statute barred and robs the court of the jurisdiction to entertain the suit.

The Defendants/Applicants submitted further that Defendants are Public Officers in the eyes of the law and therefore protected by Section 1 (1) of the Public Officers’ Protection Law of Akwa Ibom State. The Defendant/Applicants called into aid judicial authorities (Supreme Court, Court of Appeal and NICN) and statutory provisions to buttress this beginning with the decision of the Court of Appeal in the recent case of Mallam Nasir Ahmed EI-Rufai v. Senate of the National Assembly (2016) 1 NWLR (Pt. 1494) 504 , where it was held that:

“The law is settled that the Public Officers’ Protection Act protects both artificial and natural persons who act in the public service of the Federation of Nigeria or of a State of the Federation of Nigeria.”

The Defendants/Applicants also referred to Section 18 of the Interpretation Act, Laws of the Federation of Nigeria, 2004 where the word “person” has been defined to include any body of persons, corporate or unincorporated and submitted that the use of the words “any person” in Section 1 (1) of the said Law is not only limited to natural persons (such as the 2nd Defendant) but also includes artificial persons (such as the 1^st Defendant).

The Defendants/Applicants went on to refer to the case of Ibrahim v. Judicial Service Commission (supra) where the Supreme Court, per Iguh, JSC held inter alia:

“It is beyond dispute that the word “person” when used in a legal parlance, such as in a legislation or statute, connotes both a “natural person”, that is to say a “human being” and an “artificial person” such as a corporation sole or public bodies corporate or in- corporate.”

The Defendants/Applicants also referred to dictum of Galadima, JSC, in Attorney General of Rivers State v. Attorney General of Bayelsa State (2013) 3 NWLR (Pt.1340) 123 thus:

“It is my view that “any person” as provided in Section 2 of the Public Officers (Protection) Law of Northern Nigeria 1963 are not limited only to natural persons or human beings or to persons sued in their personal names. Unless the contrary intention is indicated, and no such intention is therein manifested, those words in the Public Officers (Protection) Law include persons known to law inclusive of artificial persons, public bodies or body of persons 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 in pursuance or execution of any law or any public duty or authority.”

Next was the recent case of Central Bank of Nigeria v. Shipping Company para B. V. (2015) 11 NWLR (pt. 1469) 131 at 154 paras D-E, where the Court of Appeal per Obaseki-Adejumo, JCA held thus:

“Public Officer refers not only to natural person or persons sued in their personal names but extends to public bodies, artificial persons, institutions or persons sued in their official names.”

Finally on the point, the Defendants/Applicants quoted extensively from the persuasive decision of my learned brother, Hon. Justice E. N. Agbakoba, in the case of Bassey Essien & 6 Others v. College of Education, Afaha Nsit & 2 Others – Suit No: NICN/CA/51/2014 delivered on 3^rd March, 2015.

On the strength of the decisions from virtually all strata of courts, the Defendants/Applicants submitted as public officers and being sued for a wrong allegedly committed in the course of their duties as public officers, they are covered and protected by the Public Officers Protection Law, Cap. 104 Vo1.5, Laws of Akwa Ibom State, 2000.

By way of conclusion, the Defendants/Applicants submitted that equity aids the vigilant and not the indolent and a Claimant who waited for 27 months to bring an action against a wrong is guilty of tardiness and therefore urged the court to dismiss the suit in its entirety.

SUBMISSION OF CLAIMANT/RESPONDENT

In opposing this application, the Claimant/Respondent formulated a lone issue, which is: Whether in the circumstances of this case, the suit of the Claimant is statute barred.

The Claimant/Respondent started by stating that defendants made heavy weather of the issue that the claimant filed this suit outside the stipulated limitation period of 3 months next after the act complained of heavily relying on the provisions of Section 1 (1) of the Public Officers’ Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000.

The Claimant/Respondent noted that the Section 1 (1) of the Public Officers’ Protection Law, Laws of Akwa Ibom State, 2000 is in part materia with Section 2 (a) of the Public Officers (Protection) Act, 2004, which in a plethora of judicial authorities were held to have exceptions to the application of the three months’ limitation period for commencement of action against public officers. The Claimant/Respondent gave example of several cases. For instance, in the case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 @Ratio 3, 6 & 10, the Supreme Court held succinctly as follows:

Ratio 3: “Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2 (a) of the Public Officers Protection Law of such Protection”.

Ratio 6: “Where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim protection of the provisions of the Public Officers Protection Act”.

Ratio 10: “Where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of section 2 (a) of the Public Officers Protection Act as to three months time limit for commencement of action against him.”

The Claimant/Respondent submitted that the apex court also had reasons to restate the above position of the law subsequently in the cases of A. G. Rivers State v. A. G. Bayelsa State & Anor. (2013) 5 NWLR (Pt. 1340) 123 and A. G. Adamawa State & Ors v. A. G. Federation (2014) 14 NWLR (Pt. 1428) 515 Ratio 22. Similarly, in the case of Muhammed v. A.B.U., Zaria (2014) 7 NWLR (Pt. 1407) 500 @ Ratio 17, the court held:

“The Public Officers Protection Act is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. The Act will not apply if it is established that the defendant had abused his position for purposes of acting maliciously. In that case, he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts, he has abused his position for the purpose of doing a wrong and the protection of the Act never could apply to such a case. Thus, abuse of office and bad faith are factors that can deprive a party of the protection of section 2 (a) of the Public Officers (Protection) Act he would otherwise have been entitled to. The protection enjoyed by public officers under the Public Officers Protection Law or Act is not automatic. The law does not automatically protect any public officer who had abused his position. Therefore, a court should not immediately dismiss an action on the ground that the action commenced against a public officer was filed outside three months from the date of accrual of the cause of action. The court has to be satisfied that the act executed by the public officer was not done in bad faith or did not amount to abuse of office, that is to say, using the power to achieve personal gain, to show undue favour to another or wreck vengeance on an opponent, or was not exercised in breach of his statutory or constitutional duties, etc…”

On the same point, the Claimant/Respondent also referred to the cases of N.P.A. v. Okereke (2017) 7 NWLR (Pt. 1564) 323 Ratio 3 and Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (Pt. 1445) 139 Ratio 6 & 9.

The Claimant/Respondent admitted ab initio that the defendants are Public Officers within the meaning and contemplation of the Public Officers Protection Law, Akwa Ibom State but set out to now consider whether the act or action of the defendants in the instant case constitute an exception to the application of the three months’ limitation period for commencement of action against public officers.

The Claimant/Respondent submitted that in the case of Muhammed v. A.B.U., Zaria Supra @ Ratio 18, the court in explaining what abuse of power by a public officer entails, had this to say at Ratio 18:

“Abuse of power may take the form of non-compliance with the rule or rules of procedure prescribed for that body. It may be exemplified in the denial of the right to be heard in one’s defence. It may consist of irregularities which are tantamount to a denial or breach of the rules of natural justice…”

In bringing the facts of the instant case within the exceptions alluded earlier, the Claimant/Respondent posited that looking at the Writ of Summons, Statement of Claim and the Claimant’s Written Statement on Oath, it is apparent that the principle of natural justice was assaulted by the defendants in terminating the appointment of the claimant.

To demonstrate this assault, the Claimant/Respondent reiterated some of the reliefs, which at the risk of repetition are:

A declaration that the purported termination of appointment of the claimant by the defendants vide letter dated 22^nd March, 2016 is unlawful, invalid, null and void and is contrary to the statute establishing the 1^st defendant and its Approved Staff Conditions of Service, 2011.
A declaration that the procedure adopted by the defendants to purportedly terminate the appointment of the claimant is unconstitutional, unlawful and a gross violation of the Claimant’s Fundamental Human Right and it negates the principle of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (CAP 10) Laws of the Federation of Nigeria, 1999, Sections 8 and 20 of the Akwa Ibom State University Law, 2009 and the relevant Sections of the Approved Staff Conditions of Service of Akwa Ibom State University, 2011 particularly Chapter 8 thereof.

iii. The sum of N20,000,000.00 (Twenty Million Naira) only being general and exemplary damages for the psychological trauma and deprivation suffered by the claimant, his wife and children as a result of cruel, unfair, unlawful and wrongful act of the defendants.

The Claimant/Respondent also in his desire to demonstrate abuse of office, bad faith, malice etc in the instant case, reproduced verbatim paragraphs 13, 14, 15, 19, 20, 21, 22, 23, 24 and 25 of the Claimant’s Statement of Facts. In the same vein, a reproduction of paragraphs 13, 14, 15, 20, 21, 11, 13, 24 and 25 of the Claimant’s Written Statement on Oath to corroborate the fact that the defendants acted maliciously and in grave violation of the principles of natural justice in terminating the appointment of the claimant were made. It is therefore the contention of the Claimant/Respondent that the defendants did not comply with Chapter 8 of their Approved Conditions of Service and Sections 8 and 20 of the Akwa Ibom State University of Law, 2009 in terminating his appointment, in not constituting or referring the allegation of gross misconduct against the Claimant to a Disciplinary Committee thereby not according the claimant fair hearing.

On the strength of the foregoing judicial authorities cited, the Claimant/Respondent strongly submitted that the protection offered by the Public Officers Protection Law of Akwa Ibom State, 2000 cannot avail the defendants as the facts of the instant case incontestably and unmistakably constitutes an exception to the general rule.

The Claimant/Respondent also argued that where there is continuing injury being suffered or the wrong is a continuing one, as in this case, the position of the law is that the limitation period shall not be operational and referred to the case of A.G. Rivers State v. A. G. Bayelsa State (2013) 5 NWLR (Pt. 1340) 123. Similarly, he cited the case of Akwa Ibom State University v. Ikpe (2016) 5 NWLR (Pt. 1504) 146, @ Ratio 11, where the court aptly held:

“The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused. In the instant case, the trial court was correct when it held that the action filed less than two months after the respondent’s counsel wrote demanding that he be reinstated was filed within time”.

The Claimant/Respondent took time to supply a brief facts of the case of Akwa Ibom State University v. Ikpe Supra, which to him, has a striking similarity with the instant case to the following effect:

“The respondent took out a writ of summons against the appellants challenging his dismissal from the service of Akwa Ibom State University. The appellants filed a preliminary objection to the respondent’s suit on the ground that the suit was statute barred under the Public Officers Protection Law. The objection was duly argued and in a considered decision, the trial court overruled it and held that the suit which was filed less than two months after the respondent’s counsel wrote demanding that he be reinstated was filed within time. The Akwa Ibom State University appealed against the decision and the appeal was dismissed.”

The Claimant/Respondent argued that the facts of Akwa Ibom State University v. Ikpe supra is in pari materia with the facts of the instant case, in that the claimant’s counsel in the instant case also wrote a letter to the defendants on 3^rd May, 2018 and this suit was filed on 2^nd July, 2018, within 2 months after the claimant’s counsel wrote to the defendants demanding that the claimant be reinstated.

At the point of adopting his written reply, counsel to the Claimant/Respondent orally attacked the Reply on Point of law filed by the Defendant/Applicant for being intended to reopen and reargue the issues raised in the final written address. He cited the cases of Eko Bank Nigeria Limited v. Anchorage Leisure Limited & ors (2016) LPELR 40220 CA and UBA Plc v. Obokolo (2009) LPELR 8923 CA and further posited that a reply on point of law is not meant to improve the quality of a written address. He therefore urged the court to discountenance paragraphs 2.09, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.16 of the said reply for seeking to reargue the case.

In conclusion, the Claimant/Respondent urged this court to dismiss this preliminary objection with substantial cost against the defendants as same is unfounded, baseless and otiose.

DEFENDANTS’/APPLICANTS’ REJOINDER ON POINTS OF LAW

By way of rejoinder the Defendants/Applicants responded to the submissions of the Claimant/Respondent on the exceptions to the limitation law in the instant case due to:

The fact that the termination of the Claimant was done inbad faith, abuse of office and ill motive on the part of the defendants, with no recourse to the terms rules of fair hearing.
The injury or wrong done to the Claimant is continuing one thereby rendering the limitation law to be inapplicable.

iii. The writing of the series of letters for reversal and reinstatement as a reason why the limitation period should not be counted against the claimant.

And like the Claimant/Respondent, the Defendants/Applicants considered or re-joined the above issues together. To start with, the Defendants/Applicants listed the six (6) cases cited and relied upon by the Claimant/Respondent for seeking to bring his case within the exceptions of the limitation law. By way of laying a foundation for distinguishing these cases with the facts of the instant case, the Defendants/Applicants posited that that every case is an authority for what it decides, citing the dictum of Ogbuagbu, J.S.C. in the case of Skye Bank Plc v. Chief Moses Akinpelu (2010) 9 NWLR (Pt. 1198) 179, thus:

“It must be borne in mind that each case must be considered on its own particular or peculiar facts or circumstances. No one case is identical with the other or another, they may be similar but never identical. This must be so, as it is settled that a decision is only an authority for what it decides and nothing more.” For this reason, what is applicable in one case may not be the law for other cases especially where the facts and circumstances are clearly distinguishable.”

For clarity and completeness, I will reproduce verbatim the facts of the listed six (6) cases bringing out their points of divergence and distinguishing features as advanced by the Defendants/Applicants:

Attorney General of Rivers State v. Attorney General of Bayelsa State (2013) 5 NWLR (Pt. 1340) 123 (cited in paragraph 4.03 of the Claimant’s Written Reply)

Facts of the Case:

In this case, the Government of Rivers State approached the Supreme Court sitting in its original jurisdiction and prayed the court to determine whether the Soku Oil Field is located in Rivers State or in Bayelsa State. In presenting its case, the plaintiff narrated the history of the two states and submitted that Bayelsa State was a part of Rivers State until 1996 when it was calved out by the then Military Head of State and made a separate State with full rights and privileges. The plaintiff claimed that in spite of the creation of Bayelsa State from Rivers State, the Soku Oil Field remains is within the maritime boundaries of Rivers State and not in Bayelsa. It contended further that it was wrongful for the Federal Government to pay derivation money from the Soku Oil Field to Bayelsa instead of Rivers State. Plaintiff argued that the wrongful payment is done on a monthly basis and that the injury caused the people of Rivers State is continuous. Responding to the suit, counsel for Bayelsa State raised a preliminary objection, cited S.2 of the Public Officers’ Protection Act and argued that, in view of the fact that the alleged wrong was committed many years before the filling of the suit, the suit is statute barred, having not been filed within three months after the cause of action arose. Counsel therefore urged the Supreme Court to dismiss the suit for being statute barred.

Held:

The Supreme Court, in a full panel of 7 Justices dismissed the preliminary objection and proceeded to hear the suit, for reason that, since the alleged wrongful deductions complained of occur every month and are still continuing, the suit was not statute barred. In the lead judgment of the court, Suleiman Galadima, J.S.C held:

“Where public officers or head of agencies of the Federation or State are protected by the Public Officers’ Protection Act. Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the amended statement of claim and as equally deposed to in his counter affidavit, the plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased, the defence is not available to the 1^st defendant where such allegation of continuing damage or injury has been raised.”

The court went on to explain the phrase ‘continuing damage or injury’ when it held thus:

“In Aremo II v. Adekanye (2004) All FWLR (Pt. 224) 2113 at 2132, the court stated the position of the law as to what constitutes ‘continuing damage or injury’. It is stated thus:‘Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused; Battishill v. Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action.”

It is therefore clear from the facts of the case and the decision of the apex court that the injury complained of by the Government of Rivers State occurred from month to month and therefore continuous, there is no such situation in the present case. Claimant has not shown that the termination of his employment (the cause of action in his case) occurs every month neither has he shown that after the termination of his employment in March, 2016, same has been terminated again and continuous, to warrant the non-applicability of the provisions of the Public Officers’ Protection Law of Akwa Ibom State, 2000. We therefore urge the court to rule that the above cited case is not helpful to the case of the Claimant.

Hassan v. Babangida Aliyu (2010)17 NWLR (Pt. 1223) 547 (cited in paragraph 4.02 of the Written Reply).

Learned counsel has cited what he calls Ratios 3, 6 and 10 to support his position that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim protection under the Public Officers’ Protection Act. May we quickly observe that what counsel refers to as ‘Ratios’ are not the ratio decidendi of the apex court on the said matter but the ratios as fashioned by the law reporters. As a matter of fact, the apex court was unequivocal that the allegation of acting outside authority or legal justification in that case was not proved against the alleged public officer — INEC, for which reason the court dismissed the suit. Such “ratios” of the editors of the law report must therefore be read with great circumspection.

Facts of the Case:

On the 13th day of December, 2006, the Peoples’ Democratic Party (PDP) conducted its primary election to nominate its candidate for the Gubernatorial Election for Niger State which was scheduled for April, 2007. The primary election was won by Alhaji Jibrin Hassan. His name was accordingly forwarded to INEC as the sponsored candidate of the PDP. Babangida Aliyu did not participate at the primaries as he was still a federal civil servant at the time of the primaries. Few months to the Gubernatorial Election, Alhaji Hassan’s name was replaced by the PDP with the name of Babangida Aliyu and the name forwarded to INEC as the new candidate of the party. Alhaji Jibrin Hassan protested the substitution and made solicitations to various quarters for reversal, to no avail. On the 7th day of November, 2007, he filed a suit at the Federal High Court challenging his substitution. He prayed the court to sack Babangida Aliyu and declare him (Hassan) as the Governor of Niger State. On being served with the originating processes, Babangida Aliyu, through his counsel, raised a preliminary objection to the suit namely, that the action being a complaint against the steps taken by a Public Officer (in this case, INEC) the suit is statute barred, having regard to the provisions of the Public Officers’ Protection Act, the suit having not been filed within 3 months from the day the cause of action arose. The trial court heard the arguments on the objection and in a judgment delivered on the 14th day of December, 2007, the court upheld the objection and struck out the suit for being statute barred. Aggrieved, Alhaji Hassan appealed to the Court of Appeal. The appeal was heard and dismissed for want of merit. The Court of Appeal affirmed the judgment of the trial court and also held that the suit was statute barred. Alhaji Hassan then made a further appeal to the Supreme Court. At the Supreme Court, the appeal was also dismissed for being statute barred. The apex court held that the suit which was filed 9 months after the cause of action arose was in contravention of the provision of the Public Officers’ Protection Act.

Held:

Per Onnoghen, J.S.C:

“It should, be noted that there is clear distinction between a cause of action and a right of action or the right of action to enforce the cause of action or the right of judicial relief. The distinction must be constantly kept in view to avoid confusion. There is no doubt that the appellant in the case has a cause of action. The cause of action is founded on the fact that the appellant, who alleged that he was the duly nominated candidate of the 2’ respondent for election into the office of Governor of Niger State scheduled for 14th April, 2007, was by a letter of 5^th and 13^th February, 2007 substituted by the 1^st respondent as the sponsored candidate for that election contrary to the provisions of sections 34 (2) and 36 (1) and (2) of the Electoral Act, 2006. The above cause of action accrued on the 13th day of February, 2007 when the substitution was effected. It is the accrual of the cause of action that confers on the appellant the right to institute an action to enforce the cause of action or right to a judicial relief. The effect of a statute of limitation such as the provisions of section 2 (a) of the Public Officers’ Protection Act on the cause of action and right of action is that it bars the right of action and not the cause of action. The effect of a statute of limitation on the action of a plaintiff is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though without the right to enforce same or right to judicial relief.”

He went on to hold as follows:

“It is the duty of the plaintiff/appellant to adduce evidence or facts to establish bad faith, lack of semblance of legal justification, etc. The facts to be produced must exist to enable the court find the absence of semblance of legal justification, otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the court will have no justification to entertain same.”

Like it was in the above case, it is our submission that the claimant’s case is statute barred having not been filed within 3 months from when the cause of action arose. We also submit that the claimant has failed to adduce facts to substantiate his claim that the defendants acted in bad faith and outside the scope of their authority. We submit that the phrase ‘bad faith’ means, ‘an intentional dishonest act, aimed at misleading or deceiving another; dishonesty of belief or purpose.’ (See: Black’s Law Dictionary, 9th Edition, page 159). We submit that the claimant has not established any such intentional dishonest act against the defendants in his Complaint before this court. Claimant had a duty in law to have filed this suit within 3 months from when the cause of action arose.

Engr. Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (Pt.1445)139 (cited at paragraph 4.05 of the Written Reply)

Facts:

Engr. G.F.C Ezeani was employed into the services of the Nigerian Railway Corporation in October 1979. He rose through the ranks and was promoted to Grade Level 17 in a letter dated the 15th day of April, 2007. Few days after his promotion, precisely on the 18th day of April, 2007, he received a letter from the Corporation, informing him that he has been compulsorily retired from service on ground of ‘public interest’. Aggrieved by his sudden retirement and the reason given for the retirement, the appellant petitioned the Bureau of Public Service Reforms (BPSR) which investigated the matter. After listening to his complaint, the Chairman of the Steering Committee of the Bureau of Public Service Reforms who also doubled as Secretary to the Federal Government, in a letter dated the 1^st day of August, 2008, ordered the Minister of Transport to immediately re-instate the appellant. The Minister of Transport then directed the Managing Director of the Railway Corporation to re-instate the appellant in compliance with the directive of the SGF. The Managing Director refused to re-instate the appellant and communicated his refusal to him in a letter dated the 18th day of December, 2009. Consequently, the appellant instructed his lawyers to issue pre-action notice to the Railway Corporation and at the expiration of the notice, the appellant instituted an action at the Federal High Court, Lagos, challenging his compulsory retirement. The respondent (the Railway Corporation) after filing its memorandum of appearance raised a preliminary objection challenging the jurisdiction of the court to entertain the suit. Its ground was that the suit was statute barred, having not been filed within three months. The Federal High Court upheld the objection and struck out the suit. The appellant was aggrieved and therefore appealed to the Court of Appeal sitting in Lagos. The Court of Appeal held that the suit was not statute barred in view of the supervening instances, especially the order of the SGF and of the Minister which directed the re-instatement of the appellant. The court held further that the respondent acted in bad faith and abuse of office when its Managing Director refused to heed the directive of the SGF and that of the Minister, for which reason the court held that the protection given to public officers in the law does not avail the respondent.

Held: Per Pemu, JCA at pages 164 and 165 paragraphs A and F:

“The very acts of the respondent, which acts were in bad faith, in that they failed and indeed refused to heed the directive of their superiors leave much to be desired. What did the respondent mean by retiring the appellant ‘in the public interest’? That term is at large. It is my view that the bad faith exhibited by the respondent and this blatant failure to accede to the directive of his superiors to reinstate the appellant, stopped the time from running.”

Per Joseph lkyegh, JCA at pages 169 and 170 paragraphs F-D:

“The indifference of the respondent to the directive by its superior to reinstate the appellant into his erstwhile post eliminated good faith in the respondent’s action that led to the demise of the employment of the appellant. It is therefore clear at first sight that on the face of the facts presented at the court below, the respondent acted in bad faith and/or in abuse of office in dispensing with the services of the appellant. The instance of bad faith emerged from the nebulous reason of ‘public interest’ assigned by the respondent for putting an end to the appellant’s employment. The obstinacy, insubordination and impunity the respondent also displayed by its refusal to reinstate the appellant to his erstwhile position in total disregard of the directives from the respondent’s supervising ministry, the Ministry of Transport, also smacked of bad faith and showed the respondent had ulterior motive other than public good in dispensing with the appellant’s service, it follows that the respondent acted in bad faith in the circumstances of the case and cannot rely on or enjoy the benefit of section 83 (1) of the Nigerian Railway Act and Section 2 (a) of the Public Officers’ Protection Act. Accordingly, bad faith held the hand of the clock and prevented time from running against the institution of the action at the court below.”

It is our submission that the facts and circumstances of the above case are clearly distinguishable and different from the facts of the case before this court. The reason given by the Railway Corporation for the sack of the appellant (public interest) – which the appellate court described as being vague and unacceptable-is not the same reason in the case at hand. Most importantly, there was an intervening factor in the case above, which stopped the hand of the clock from running against the appellant, that is, the directive of the SGF and the Minister for Transport directing that the appellant be re-instated. The Claimant in this case has not pleaded any similar directive made in his favour by any superior officer of the Akwa Ibom State University or that of the Akwa Ibom State Government; owners of the University. In the absence of a similar directive the case of Ezeani (supra) is only but an authority for what it decided and not applicable to the claimant’s case.

Nigerian Ports Authority v. Christopher Okereke (2017) NWLR (Pt.1564) 323 (cited in paragraph 4.05 of the written address)

Facts:

The respondent was employed by the NPA as a messenger in 1981. Sometime in April, 2004, he was issued a query to show proof that the primary school certificate bearing the name Ndukwe Ochu was his own and not that of someone else. He was investigated by the administrative panel of the Port Authority and found to be guilty of fraud for which reason his appointment was terminated. In April, 2005 he was arrested by the ports police and charged to court for forgery. He stood trial but was later discharged and acquitted of the offence. He thereafter gave a pre-action notice to the appellant before instituting a suit against them. On receipt of the originating processes of the Complainant, the appellant filed a notice of preliminary objection challenging the jurisdiction of the Federal High Court to hear the suit. It was the contention of the appellant that by virtue of section 251 of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court was not empowered to adjudicate on a suit bordering on simple contracts of employment. The learned trial judge dismissed the objection and assumed jurisdiction to hear the matter. Aggrieved, the port authority (appellant) approached the Court of Appeal sitting in Lagos where the issue was raised whether the suit of the respondent was not statute barred in view of the fact that the suit was filed three years after the cause of action arose. In his response, counsel for the respondent argued that the protection afforded public officers in the Public Officers’ Protection Act does not avail the appellant because the appellant acted in bad faith and abuse of office against the respondent. That the appellant ought to have visited the respondent’s secondary school to verify the genuineness of the certificate and that having not done so, the appellant acted in bad faith and outside the colour of official duty. He therefore urged the Court of Appeal to dismiss the appeal and revert the case to the FHC for trial.

Held:

Per Oseji, JCA at pages 339-341:

“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 argument is premised on the point that not all acts of public officers entitle them to the protection of the act and that in this case, the appellant acted out of malice and in 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. 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.”

His Lordship went on to hold at page 341:

“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… To my mind, 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 (appellant) can claim the protection of the Public Officers’ Protection Act.”

It is our submission that the above case which was cited by the claimant’s counsel in his written reply is rather in support of the position of the defendants. We also add that the complainant in the above case principally complained of bad faith which he said was manifested in his arrest and prosecution by the police at the behest of the Port Authority. We submit that there is no such allegation in the present case against the defendants.

Bauchi State Judicial Service Commission v. Danjuma (2017) 7 NWLR (Pt. 1565) 432

Facts:

The respondent was a Magistrate in Bauchi State. In the course of the exercise of his duty, he convicted and sentenced an accused person to a term of imprisonment not provided for by law and also gave an option of fine equally not provided for by law. This action led to the breach of peace in the Bauchi Metropolis. He was queried by the State Judicial Service Commission and later dismissed from service. He then instituted a suit at the Bauchi State High Court wherein he challenged his dismissal. Counsel for the State raised an objection to the suit. That the trial court lacked the jurisdiction over the suit because same was statute barred, having been instituted outside the prescribed period permitted by the Public Officers’ Protection Law of Bauchi State. That, while the respondent’s employment was terminated on 30/12/2010 the respondent filed the suit at the National Industrial Court, Jos on 14/2/2012 (14 months after the cause of action arose). It is interesting to note that before the filing of the said suit at the NIC, the respondent had previously filed the same suit in the Bauchi State High Court and upon the amendment of the 1999 to accord original jurisdiction in labour matters to the NIC, the State High Court Judge deemed it important to decline jurisdiction in the matter owing to the amendment. Claimant therefore approached the NIC where the suit was filed afresh.

Held:

Per Abdullahi, JCA at pages 449 -450:

“The facts which remain notorious to the trial court and which it judicially noticed is that the respondent, then complainant, initially instituted this action on 4/1/2011 after receiving the termination letter from the 1st appellant on 31/12/2010 against the appellants, then defendants before the High Court of Bauchi presided over by Justice M.A. Sambo. Upon coming into force and or enactment of section 254 of the 1999 Constitution which conferred jurisdiction (to the exclusion of any other court) to the National Industrial Court to deal with all matters related to and/or connected with labour, employment, the workplace and other industrial disputes, Justice M.A. Sambo transferred the suit to the National Industrial Court sitting in Jos and was listed on the cause list as Suit No. NICN/ABJ/77/2011. At the preliminary stage of the suit, the Presiding Judge, considering the provision of section 24 (3) of the NIC Act, 2006 observed that the Bauchi State High Court lacks the jurisdiction to transfer Suit No. BA/0l/2011 to the National industrial Court. With the consent of all parties, the case was withdrawn on 13/2/2012 and re-filed the following day, 14/2/2012 at the same NIC, Jos and was relisted as NICN/77/2012 and is the present suit being determined on this appeal. With holistic diligence exhibited by the respondent right from 4/1/2011 when he initiated an action, the arguments on statute barred cannot hold water and are therefore discountenanced.”

It is our submission therefore that the facts of the above case are remarkably different and therefore distinguishable from the facts of the present case. The dismissed Magistrate had timeously filed his complaint at the Bauchi State High Court, which was the proper court at the time. Upon the amendment of the constitution to vest exclusive jurisdiction in labour matters on the NIC, the matter was transferred to the NIC. The Judge of the NIC looked into the enabling Act and held that there is no provision in the Act authorizing the Bauchi State High Court to transfer the matter to the NIC for which reason the matter was struck out on its first arrival at the NIC. The following day, the matter was refiled. These instances stopped the hand of the clock from running against the complainant. My Lord, there are no such instances in the case before this court. While it is clear that the dismissed Magistrate Danjuma was quick and timeous in the pursuit of his right, same cannot be said of the claimant in this case who only took his complaint to this court, 27 months after the cause of action arose. We therefore submit that the case of Danjuma is not applicable to the facts of his case.

Abubakar Alhassan Muhammed v. Ahmadu Bello University, Zaria (2014) 7 NWLR (1407) 500 (cited in paragraph 4.04 of the Written Reply) is not also applicable in this case as the facts which led to the expulsion of the appellants from the Faculty of Law, ABU are different from the facts of this case. Moreso, there are numerous decisions of the Supreme Court on the position of the law on period of limitation which, by application of the principle of stare decisis, supersede the decision of the Court of Appeal on the same subject matter.

Akwa Ibom State University v. Thompson Ikpe (2016) 5 NWLR (Pt. 1504)146 (cited at paragraph 4.16 of the written reply)

In this suit, the respondent took out a writ of summons challenging his dismissal from service as Acting Director of Administration at the Akwa Ibom State University. The University raised an objection to the suit and argued that the suit was filed for the first time at the National Industrial Court, many months after the cause of action arose and was therefore statute barred. Responding, counsel for Thompson lkpe argued that the suit was first filed (within the first three months) at the Akwa Ibom State High Court sitting in Uyo before the matter was taken to the National Industrial Court following the amendment of the 1999 Constitution which vested exclusive jurisdiction on labour and industrial matters in the NIC. Counsel also argued that there was an intervening factor in the suit which stopped the hand of the clock from counting against his client. That factor, according to counsel, was that following the complaint of his clients and written representation to the then Governor of the State, a letter was written by the then Commissioner for Education – Dr. Ebebe Ukpong – directing the Vice Chancellor at the time to stay action on the dismissal of the respondent and others pending further directives from the State Government. It was as a result of the above reasons that the Court of Appeal, sitting in Calabar held that the injury against the respondent was continuous and therefore the Public Officers’ Protection Act did not apply to stop the respondent from going to court.

It is our submission that the facts of the above case are different from the facts of the present case. Whereas there was a letter from the supervising Ministry of Education in Akwa Ibom State instructing the then Vice Chancellor to maintain status quo pending further directive, there is no such directive in the present case to justify the claimant’s decision to wait for about 27 months before filing this suit as against the requirement that such suit must be filed within 3 months.

This ends the verbatim analysis by the Defendants/Applicants of the cases cited by the Claimants/Respondents.

It is the further submission of the Defendants/Applicants that the facts of the cases cited by the claimant’s counsel are different and distinguishable from the facts of the present case and are therefore not authorities to warrant a departure from the position of the law on statute of limitation against public officers.

On the Allegation of bad faith and abuse of office, the Defendants/Applicants re-joined by referring the court to the case of Dr. Mathias Oko Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458 at 485 paras. D-F, where the Supreme Court held:

“Abuse of office is the use of power to achieve ends other than those for which power was granted, for example for personal gain, to show undue favour to another or wreak vengeance on an opponent. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith and abuse of office.”

The Defendants/Applicants further submitted that there is no evidence in the Complaint (Writ) to show that the defendants used their powers as public officers in such a manner as to achieve ends other than those for which power was granted, or for personal gains, or to show undue favour to another or wreak vengeance on the claimant.

On the re-production of the claimant’s reliefs and averments in the written deposition on oath to show to the court why the case of the claimant should be treated as an exception to the law on limitation, the Defendants/Applicants submitted that at this stage of the proceedings, what the court considers is the date the cause of action arose and when the case was filed. On this, Defendants/Applicants placed reliance on the case of Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (Pt. 1445) 139 at page 160 paras. C-D where the Court held:

“Where a plea that an action is statute barred is raised at the trial, as in the instant case, the court is to determine when the cause of action arose and when the suit was filed. The court must decide, by looking into the statement of claim, for the date when the cause of action arose and the writ of summons for the date when the action was filed.”

Similarly, Defendants/Applicants cited the dictum of Abiru, J.C.A. in the case of Mrs. M. Danladi Kpati v. Plateau Investment & Property Development Company Ltd. (2017) LPELR-43365 at page 24-34, paras. C-D:

“The issue of limitation law in the instant case was constituted as a preliminary issue by the Appellants and thus the obligation on the lower Court was to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Respondent a cause of action and to compare that date with that on which the writ of summons was filed, and nothing more. Counsel to the Appellants predicated his entire arguments in the lower Court, and in this Court, on the contents of the written statement on oath of the proposed witness of the Respondent and he berated the lower Court for not relying on the contents of the written deposition on oath to resolve the question of date of accrual of cause of action. A written statement on oath of a witness is required to be filed along with pleadings for the sole purpose of giving the adversary an idea of the nature of the evidence that the proposed listed witnesses of the party are coming to Court to render. The correct position of the law on the status of a written statement on oath of a witness is as stated by the learned Justices in Idris v. All Nigeria Peoples Party (2008) 8 NWLR (Pt. 1088) 1 supra that it is only a proposed evidence of the witness and its contents do not constitute actual evidence and cannot be given probative value and/or relied on by a trial Court, unless and until the written statement is adopted by the witness in open court in the witness box as his testimony and he is subjected to cross-examination by the adversary, if necessary. A witness statement on oath of a witness does not form part of and cannot be considered as pleadings of the party who filed them. The reliance placed by the counsel to the appellants on the contents of the written statement on oath of the witness of the respondent in canvassing his preliminary objection that the action of the respondent was statute barred was inapposite and very wrong.”

Still on this point, the Defendants/Applicants referred to and quoted Nnamani, J.S.C in Fred Egbe v. AIhaji Abubakar Alhaji (1990) 1 NWLR (Pt. 128) 546 at 584 paras. F-G thus:

“In my view, it is only when an action can be maintained, that is, where there is a cause of action that the question of whether the act complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty without reference to whether the action was brought within three months would mean that a public officer could even be sued several years after his retirement for an act which he carried out in execution of his public duty. That, to my mind, would completely destroy the main protection which the statute gives a public officer.”

Finally, the Defendants/Respondents referred to the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and submitted that having not filed this suit within 3 months from when the cause of action arose, this suit is statute barred and this feature robs the court of the jurisdiction to entertain the suit, urging the court to so hold.

DECISION OF THE COURT

I have carefully gone through the processes, the arguments of the parties and most of the authorities thereof and the issue for determination in my candid view is: Whether this suit as presently constituted is statute-barred.

This case is predicated on Section 1 (1) of the Public Officers Protection Law, Cap 104, Vol. 5, Laws of Akwa Ibom State, 2000, a statute of limitation, a point of law touching on the jurisdiction or competence of a court to adjudicate upon a matter before it. It is a fundamental and a threshold issue that needs to be dealt with at the earliest opportunity. 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 and the right of action would have been extinguished by such law. This position is however not absolute as the law have some notable and recognized exceptions.

Before going into the issue proper, it is pertinent from the onset to consider the submission of the Claimant/Respondent on some paragraphs in the Defendants’/Applicants’ Rejoinder on Point of Law. The Claimant/Respondent attacked paragraphs 2.09, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.16 for being a ploy to reargue and improve the quality of arguments in the Final Address which is not the function of a reply. I have read the paragraphs in contention and I agree with the submission that paragraphs 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.16 have no place in a reply and are hereby discountenanced for the suppose of this application. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial brief of argument but to address new issue raised therein. See the Supreme Court case of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238 per Niki Tobi, J.S.C. The same cannot be said of paragraph 2.09, which is clearly a reaction to the reliance by the Claimant/Respondent on the averments and depositions on his Statement of Facts and Statement on oath to bring the case within the exceptions to the limitation law. So paragraph 2.09 is a proper subject of a reply and I so hold.

In the consideration of the instant application, two general principles of law on this area of the law and which are pertinent to a just determination of the matter should be noted. The first is for the Public Officers Protection Law to avail any Applicant, two conditions must cumulatively be satisfied:

(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in 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.

This is on the authority of the Supreme Court cases of A.G, Rivers v. A.G, Bayelsa (2012) 7 S.C.N.J. 84, Bala Hassan v. Babangida Aliyu (2010) 43 N.S.C.Q.R. 217 and Ibrahim v. Judicial Service Commission, Kaduna State (1998) 4 NWLR (Pt. 584).

The Second is the yardsticks to determine whether an action is statute-barred, which 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.

See the Supreme Court case of Ajayi v. Adebiyi (2012) 5 S.C.N.J. 480-481, per O. O. Adekeye, J.S.C.

I will therefore attempt to apply the facts of this case and the arguments of parties thereof to the foregoing principles in the determination of this case and will only have a recourse to the positions of the parties where necessary.

So the starting point is, are the Defendants in this case Public Officers to benefit from the protection of the said law? There is a consensus by the parties that they are. Since the Claimant/Respondent agreed that the Defendants are public officers, there is no need going into the issue any further. Next, is the whether the act or default leading to the commencement of this action is in pursuant of the execution of any law or authority. Although this issue was overlooked by the parties, I think it suffices to say that since Defendants were the employers of the Claimant, without more has satisfied the condition placed before the Defendants/Applicants. It is therefore save to say the two cumulatively conditions required by the Public Officers Protection Law to avail any Applicant are satisfied in this case.

Now to the crux of the matter. Is this suit statute-barred? The law has a simple formula for the determination of this, and that is by:

“……looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.”

These are the words of the famous wordsmith and jurist, Oputa, JSC (of blessed memory), in Egbe v. Adefarasin (1987) 1 N.W.L.R. (pt.47) 1, which have been re-echoed in most cases on the subject.

For the application of the above formula and a summary of the gist of the instant case is most appropriate. The Claimant who was employed as lecturer 1 by the Akwa Ibom State University had his appointment terminated effective from 18^th March, 2016 by a letter dated 22^nd March, 2016. The Claimant wrote two letters dated 28^th August, 2017 and 4^th December, 2017 to the Defendants for a reversal of the termination. The 1^st Defendant replied the Claimant on 23^rd January, 2018 to say that he can re-apply for appointment when vacancy exists. On 3^rd May, 2018, solicitors to the Claimant wrote a letter to the Defendants demanding for the reinstatement of the Claimant. It is against this background that the Claimant took out a Complaint against the Defendants on 2rd July, 2018.

The question now is given the above scenario, when does time start to run for the application of the 3 months imposed by Section 1 (1) of the Public Officers Protection Law of Akwa Ibom State. To the Defendants, a careful look at the originating processes revealed that the cause of action arose in March, 2016 when the letter terminating the appointment of the Claimant was issued. So a simple calculation from March, 2016 to when the Claimant filed the suit on 2^nd July, 2018 is a period of not less than 27 months thereby exceeding three (3) months allowed by the Limitation Law of Akwa Ibom State. But the Claimant only made a feeble attempt when citing the case of Akwa Ibom State University v. Ikpe (supra) when he submitted that the Claimant Solicitor’s wrote the Defendants a letter and filed this suit on 2^nd July, 2018, a period of two (2) months.

Again to sort out this contention, recourse must be had to the case law. It was O. O. Adekeye, J.S.C. who put it tersely in Bala Hassan v. Babangida Aliyu (2010) 43 N.S.C.Q.R. 220, thus:

“For the purpose of the limitation of action, time begins to run from the moment the cause of action arose or accrued. Therefore in determining whether an action is statute-barred or not, it is pertinent to ask when time begins to run. Time begins to run when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”

The Claimant/Respondent argued that he wrote a series of letters to the Defendants/Applicants to reverse the termination but to no avail and suggesting that the time will begin to run only after the last letter which was two (2) month before the filing of this case on 2^nd July, 2018 relying on the case of Akwa Ibom State University v. Ikpe (supra). I have no difficulty in agreeing with the distinction advanced by the Defendants/Applicants to holding that case is inapplicable to the facts of this case. After all, negotiation or correspondence does not stop the period of limitation from running as in the cases of Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 SC and Nwadiaro v. Shell (1990) 5 NWLR (Pt. 150) 233.

The task before me is now simple, that is, to determine when the Claimant’s cause of action arose and when the suit is instituted in accordance with the formula provided for in the case of Egbe v. Adefarasin (1987) 1 N.W.L.R. (pt.47) 1. A casual reading of the letter of termination shows that the termination of Claimant’s appointment is effective from 18^th March, 2016, that is, when the cause of action arose. Since the date of filing this case is 2^nd July, 2018, the period is about 27 months and therefore caught by the provision of the limitation law of Akwa Ibom State. Accordingly, my finding and holding is that this suit is statute-barred and I have no discretion to hold otherwise. See the case of Adekoya v. Authority (2008) 4 S.C.N.J. 162, where F. F. Tabai, J.S.C. put it in no uncertain language:

“It is a matter of calculation of raw figures in the determination of whether an action is statute barred or not. A court has no discretion in the matter. It is as stringent as that.”

Since a suit must be declared statute barred before it comes within the exceptions of the law, this is the time to consider the efforts of the Claimant/Respondent to take his case within the notable exceptions of the Public Protection Law of Akwa Ibom State. He sought to do that on two fronts, namely:

Thedefendants in in terminating the appointment of the claimant, failed to act in good faith, acted maliciously, acted in abuse of office and acted with no semblance of legal justification without according the Claimant fair hearing.

The injury caused by the termination of Claimant’s appointment is continuous.

In his bid to justify non-applicability of the limitation law to the facts of this case, the Claimant/Respondent gave a run-down of his reliefs, statement of facts and statement on oath relating to acts of bad faith, abuse of office and violation of fair hearing. These are violation of the Approved Staff Conditions of Service, failure to constitute a Disciplinary Committee to investigate allegation against him and failure of the Defendants to contact the West African Examination Council to verify the alleged fake result. The Claimant/Respondent tried to fortify this stance with judicial authorities, to wit, Attorney General of Rivers State v. Attorney General of Bayelsa State (2013) 5 NWLR (Pt. 1340) 123, Hassan v. Babagida Aliyu (2010) 17 NWLR (Pt. 1223) 547, Muhammed v. Ahmadu Bello University, Zaria (2014) 7 NWLR (Pt. 1407) 500, Nigerian Port Authority v. Okereke (2017) 7 NWLR (Pt. 1564) 323, Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (Pt. 1445) 139 and Akwa Ibom State University v. Thompson Ikpe (2016) 5 NWLR (Pt. 1504) 146.

In the rejoinder on points of law, the Defendants/Applicants embarked on an elaborate analysis of the above cases cited to highlight the points of divergence and distinguish them from the facts of the case at hand. I have painstakingly studied the distinguishing features of these cases and have no hesitation in agreeing with the Defendants/Applicants that the authorities cannot guarantee a departure from the dictates of the limitation law for the benefit of the Claimant/Respondent. I so hold.

The attempt to show elements of bad faith, abuse of office and violation of fair hearing through a rehash of the reliefs, statement of facts and statement on oath is totally misconceived. This is because all is required at this stage, is as long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the Section. The dictum of Niki Tobi, JSC in the case of Sulgrave Holdings v. FGN (2012) 7 S.C.N.J. 273-274, is a case in point:

“My understanding of this provision is that the Act gives the parameter within which a public officer can take protection under the Act. As long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the Section. It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. However, as I have said where a public officer on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official functions, that is, he acts outside the colour of his office, he cannot claim protection under the Act: See Ibrahim v. J. S. C. (supra) and Bamaiyi v. Bamaiyi (2005) 5 NWLR (Pt.948) 334.”

See also Fred Egbe v. Alhaji Abubakar Alhaji (1990) 1 NWLR (Pt. 128) 546 @ 584 paras. F-G, per Nnamani, JSC.

It should also be noted that depositions and statement of facts have to be proved like averments in pleadings. See the Supreme Court case of UBN v. Astra Builders (2010) 41 (Pt. 2) N.S.C.Q.R. 1040. So the alleged bad faith, abuse of office, ill-motive and violation of fair hearing remained otiose and ineffectual to deprive the protection of the Public Officers Protection Law.

The Claimant/Respondent submitted that where there is a continuing injury or the wrong is a continuing one, as in this case, the position of the law is that limitation period shall not be operational referring to Attorney General of Rivers State v. Attorney General of Bayelsa State (2013) 5 NWLR (Pt. 1340) 123. That is the correct position of the law. What is not correct is the Claimant/Applicant brandishing the case in support of claim. In the face of the lucid exposition of what constitute continuing damage or injury in the case, which is in complete variance with the Claimant’s case, that submission is totally misconceived, to say the least. The Claimant/Respondent has woefully failed to bring his case within the exceptions of the Public Officers Protection Law of Akwa Ibom State. I so hold.

On the whole, I find and hold that this suit is statute-barred and hereby dismissed. I am fortified in this regard by the dictum of Mahmud Mohammed, J.S.C. (as he then was now retired CJN) in N.P.A. v. Lotus (2005) 12 S.C.N.J. 183:

“Where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the trail court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out.”

Judgment entered accordingly.

………………………………………

HON. JUSTICE M. A. NAMTARI