DR. TEMPLE R. ILUMA -VS- BAYELSA STATE AGENCY FOR THE CONTROL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: JUNE 11, 2018 SUIT NO: NICN/YEN/435/2016

BETWEEN:

TEMPLE R. ILUMA

CLAIMANT

AND

BAYELSA STATE AGENCY FOR THE CONTROL OF HIV/AIDS
THE EXECUTIVE GOVERNOR OF BAYELSA STATE
ATTORNEY GENERAL OF BAYELSA STATE
MR. ALEX OGREGADE

DEFENDANTS

REPRESENTATION

Mr. A.D Nda – ue Esq appearing for the Claimant.

Mr. Egene Flint Success Esq (State Counsel) appearing for the Defendants.

JUDGEMENT

INTRODUCTION AND CLAIMS

The Claimant by a Complaint dated 24^th November, 2016 and filed on the same date approached this court and sought for the following reliefs:

A DECLARATION that the purported removal of the Claimant as the Director General/Chief Executive Officer of the 1^st Defendant through radio announcement on 29/10/2016, 30/10/2016 and 31/10/2016 and/or howsoever thereafter by any of or all of the Defendants, their respective representatives, agents, privies or assigns is not in compliance with the extant law establishing the 1^st Defendant and therefore null and void, unconstitutional and of not effect whatsoever.

A DECLARATION that the Claimant is still the Director General/Chief Executive of the 1^st Defendant and he is entitled to the perquisite of office including but not limited to salaries, emoluments and accrued/accruing benefits associated with the office of Director General/Chief Executive Officer of the 1^st Defendant, pursuant to the Letter of Appointment and having not been lawfully, legally and constitutionally determined in accordance with the extant law establishing the 1^st Defendant.

AN ORDER setting aside the purported removal of the Claimant through radio announcement on 29/10/2016, 30/10/2016 & 31/10/2016 or any other date or howsoever thereafter by the Defendants from office as the Director General/Chief Executive Officer of the 1^st Defendant.

AN ORDER directing the 2^nd Defendant not to withhold or seize or freeze the payment of the Claimant’s salaries, entitlements, benefits and collecting the official vehicles and other property of the 1^st Defendant in his possession.

AN ORDER of perpetual injunction restraining the Defendants particularly the 2^nd Defendant from removing the Claimant as the Director General/Chief Executive Officer of the 1^st Defendant till he finishes his tenure on 10/07/2017.

AN ORDER of perpetual injunction restraining the 4^th Defendant from parading and/or claiming to be the acting Director General/Chief Executive Officer of the 1^st Defendant till the Claimant finishes his tenure on 10/7/2017.

AN ORDER directing the 1^st and 2^nd Defendants to pay the Claimant arrears of his salaries together with all his entitlements from the month of December, 2015 till date.

The payment of the sum of One Hundred Million Naira (N100, 000,000.00) to the Claimant for the embarrassment, humiliation, denigration and psychological trauma caused to the Claimant by the Defendants unwarranted acts of purported announcement of the removal of the Claimant through radio announcement by the agents of the 2^nd Defendant.

The Claimant alongside also filed Statement of Facts, Witness Deposition on Oath and List of Documents to be relied upon in the cause of trial. The Claimant also filed a reply to the Joint Statement of Defence filed by the Defendants dated 6^th December, 2017 and filed on the same date, The Claimant alongside also filed a further Written Statement on Oath and list of additional documents all dated and filed 6^th December, 2017.

The Defendants enter appearance properly on the 14^th December, 2017 after this court granted an application for leave to file their processes out of time. The Defendants filed Joint Statement of Defence, List of Witness, List of Documents to be relied in the cause of trial and Witness Deposition on Oath all filed on the 8^th November, 2017. In the cause of trial the Claimant testified on the 11^th day of January, 2018 as CW1 and he was equally cross examined on the same date. The Claimant also tendered 22 EXHIBITS (EXHIBITS CWDR 001 – EXHIBITS CWDR 021). DW1 (one Sampson Opokuma) testified on the 1^st day of February, 2018 on behalf of the Defendants and he was equally cross examined on the same date. The witness tendered two exhibits (Exhibit DW001 and DW002). At the close of the trial, this court ordered parties to file their Final Written Addresses which same were filed and adopted on the 21^st day of March, 2018.

THE CASE OF THE CLAIMANT

The Claimant’s case is that he was appointed by the 2^nd Defendant as the Director General/Chief Executive Officer of the 1^st Defendant vide letter of appointment dated 6^th August, 2012 with effect from 10^th July, 2012. And that the appointment is guided and regulated by the extent law, Bayelsa State Agency for the control of HIV/AIDS (Establishment) Law, 2012 (EXHIBIT CW002). And that the appointment is for a term of five years commencing 10^th July, 2012 and is to expire on 10^th July, 2017.

The Claimant further stated that since his appointment, he has served Bayelsa State Government dutifully and was not indicted or subjected to any manner of trial by either the 1^st or 2^nd Defendants. That at no time did the 1^st or 2^nd Defendants punish him in accordance with any extant rules governing his appointment as the Director General/Chief Executive Officer of the 1^st Defendant. The Claimant also averred in his testimony that he attracted funds from the International Donor Agencies to Bayelsa State. And that his salary has not been paid since November, 2015. He however, came to know of his removal from office through the 4^th Defendant who informed him that there was radio announcement made on 29/10/2016, 30/10/2016 31/10/2016 and that the 4^th Defendant claimed that he is appointed as the Acting Director/General of the 1^st Defendant and that the 2^nd Defendant directed the Claimant to hand over to him the 4^th Defendant; the 4^th Defendant equally gave the Claimant a copy of his appointment letter as the Acting Director General of the 1^st Defendant (EXHIBIT CW022).

The Claimant in his witness deposition also stated that many of his well wishers also drew his attention to the announcement removing him as the Director General of the 1^st Defendant on the aforementioned dates. The Claimant also stated that being a statutory appointee, his appointment cannot be determined contrary to the extant law establishing the 1^st Defendant. The Claimant being aggrieved by the unconstitutional mode of determining his appointment as the Director General of the 1^st Defendant seeks the reliefs as set out in the complaint as well as in paragraphs 34 (a) – (h) of his Statement of Facts.

CASE OF THE DEFENDANTS

The Defendants through their lone witness, one Sampson Opokuma, a staff of Radio Bayelsa in his Deposition on Oath stated that the Claimant was relieved of his appointment as a political appointee on the 15^th January, 2016 along with other political appointees through radio announcement made on Radio Bayelsa and the Claimant having not brought this action within three months from the date the cause of action arouse, i.e his removal from office, his action is statute barred. The Defendants tendered EXHIBITS DW1 001 and DW2 002 as the radio announcement.

THE SUBMISSIONS OF THE DEFENDANTS

The Defendants raised a lone issue for determination as follows:

Whether Claimant’s action is not statute barred having been commenced three (3) months outside the statutory period provided in the Public Officers (Protection) Law.

Counsel to the Defendants referred to the Provisions of Section 1 (a) of the Public Officers Protection Law Cap P18 Laws of Bayelsa State 2006, which provides as follows:

Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such 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 the case of continuance of damage or injury, within three months next after the ceasing thereof.

That Section 2 (a) of the Public Officers (Protection) Act 2004 is in pari materia with Section 1 (a) of the Public Officers (Protection) Law of Bayelsa State (hereinafter referred to as Public Officers (Protection) Law). The Court of Appeal in the case of ABUBAKAR VS GOV. GOMBE STATE (2002) 17 NWLR (PT. 797) 5333 @ RATIO 5 held that the Governor of a state is a public officer. In the case of AGBOOLA Vs. AGBODEMU (2010) ALL FWLR (Pt. 529) 1111 @ 1155 para E – F, the Court of Appeal in defining who a public officer is, held that a public officer or public department extends to and includes every officer or department invested with or performing duties of a public nature whether under the immediate control of the President or of the Governor or not.

That it is not in dispute that the Claimant is a political appointee of the 2^nd Defendant, and made reference to EXHIBIT CWDR 001 which reads as follows – “I wish to inform you that His Excellency, Hon. Henry Seriake Dickson, the Governor of Bayelsa State has approved your appointment as Director-General, State Agency for the control of HIV/AIDS with effect from July 10, 2012.” And it is trite law that the contents of a document speaks for itself, as best evidence – Cited OJOH Vs. KAMALU (2005) 18 NWLR (Pt. 958) 523 @ 535 RATIO 17.

It is the contention of the Defendants that the Claimant was not employed by the Board of the 1^st Defendant which has the power to do so under Section 3 (4) (1) (m) of the Bayelsa State Agency for the control of HIV/AIDS (Establishment) Law 2012 (hereinafter referred to as Agency for Control of HIV/AIDS Law). And by Section 9 (1) of the Agency for the Control of HIV/AIDS Law, the terms and conditions of service including remuneration, allowances, benefits and pensions of officers and employees of the agency shall be determined by the Board.

That the Claimant in his pleadings and evidence before this Honourable Court stated that he only came to know about his removal from office through the 4^th Defendant who told him that he had been removed through radio announcements made on 29/10/2016, 30/10/2016 and 31/10/16. (See paragraph 25 of the Statement of Facts and paragraph 23 of Claimant’s Statement on Oath filed on 24/11/2016). And at paragraph 30 of Claimant’s Statement of Facts, he averred that many persons and well wishers drew his attention to the purported announcement of his removal as Director – General of the 1^st Defendant.

The Claimant beyond the mere averments, as to the dates of his removal, had nothing in support of his case to show that such radio announcements were made on 29/10/2016, 30/10/2016 and 31/10/2016 as alleged. Referred to Section 131 and 132 of the Evidence Act 2011. Also failure to call vital witnesses is fatal to the case of the Claimant. Cited the case of IMHANRIA VS NIGERIAN ARMY (2007) 14 NWLR (PT. 1053) 76. The Claimant never brought as a witness the “many persons or any of his well wishers” nor tendered any evidence contrary to the evidence as contained in EXHIBIT DW 002.

It is the submission of the Defendants that the Claimant failed to discharge the burden of proof regarding the dates the radio announcements were allegedly made; thus, the only evidence left before this court is EXHIBITS DW001 and DW002, particularly, EXHIBIT DW002 which is a news item from Radio Bayelsa showing when the announcement relieving all political appointees of their appointments was aired. It is the law that it is duty of a plaintiff to prove the averments denied by the Defendants – Cited ONIGBEDE VS BALOGUN (2002) NWLR (PT. 726) 1 @ RATIO 1. The Defendants denied specifically the dates of removal averred in Claimant’s paragraphs 25 and 30 of the Statement of Facts in paragraphs 12, 14 and 15 of 1^st – 4^th Defendants Joint Statement of Defence. The evidence as given by the Claimant that it was the 4^th Defendant who told him about his removal and that the fact of his removal was drawn to his attention by many persons and well wishers are pieces of inadmissible evidence being hearsay evidence. Cited the case of EZEAZODOSIAKO VS OKEKE (2005) 16 NWLR (PT. 952) 612 @ 617 RATIO 7.

That having established the fact that Claimant is a political appointee (whether a tenured appointment or not) who holds his appointment at the pleasure of the Governor of Bayelsa State (his appointor), and the fact that Claimant could not substantiate his claim of being removed from office on 29/10/2016, 30/10/2016 and 31/10/2016 (the evidence being hearsay), the only evidence before this Honourable Court is that of EXHIBIT DW001. Submit that these acts of the Executive Governor (2^nd Defendant) in relieving all political appointees of their appointments were done in pursuance or execution of a public duty or authority. Further submit that it is evident the Claimant commenced this action on 24^th of November, 2016, almost 9 (nine) months after he as a political appointee along with other political appointees of the Governor of Bayelsa State, Hon. Henry Seriake Dickson were relieved of their appointments. And that by section 1 (a) of the Public Officers (Protection) Law, the Claimant’s action is statute barred having been commenced almost 9 (nine) months after the cause of action arouse. The cause of action in this case arouse on 15^th February, 2016. Cited the case of CENTRAL BANK OF NIGERIA VS AMAO (2007) ALL FWLR (PT. 351) 1490 @ 1526 paras F – G. And that a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. Refers to SANDA VS KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT. 174) 379; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT. 631) 362. It is the contention of the Defendants that whilst the Claimant may have an enforceable claim and a right of action, this has been caught up by time as statutorily provided for. Refers to the case of KASANDUBU VS ULTIMATE PETROLEUM LTD (2008) ALL FWLR (PT. 417) 155.

Also the Court of Appeal in CENTRAL BANK VS AMAO (SUPRA) @ PAGE 1526 PARA D held further that if the date on the initiating process is outside or beyond the period limited and allowed by the relevant statute, from the date of the accrual of the action, then the action is statute barred. The Claimant having failed to file his action on the date the cause of action accrued, can no longer enforce his legal right as the action was not commenced within the three (3) months as provided in Section 1 (a) of the Public Officers (Protection) Law. Cited the case of IBRAHIM VS J.S.C (1998) 14 NWLR (PT. 584) 1 @ 6 RATIO 2. Submit further that the provisions of Section 1 (a) of the Public (Protection) Officers Law is very clear and unambiguous and should be given its plain and ordinary meaning. Cited EDOZIEN VS EDOZIEN (1998) 13 NWLR (PT 580) 133 CA. Also cited the case of BAKARE VS N.R.C (2007) ALL FWLR (PT. 391) 1579 @ 1582 RATIO 1, Also cited the dictum of AGUBE JCA in his concurring judgment in the case of UNIVERSITY OF ILORIN VS ADEDIRAN (2007) ALL FWLR (PT. 382) 1187 @ 1914 – 1915 paras H – B. And that it is the law that the latent legal effect of a finding that an action is statute barred is that it affects the competence or jurisdiction of the court to entertain same. Refers to C.B.N VS. AMAO (Supra) @ PG 1495 RATIO 8. And also the case of MADUKOLU VS NKIEMDILIN (1962) 1 ALL NLR 587. And it has been held in a long line of cases that where a court finds an action to be statute barred, the proper order to make is an order of dismissal. Refer to the case of UNITY BANK PLC. VS NWADIKE (2009) 4 NWLR (PT. 1131) 352 @ 359 RATIO 5 CA.

Also that the Claimant averred in his Statement of Fact and also gave evidence to the effect that he was not paid his salaries and other entitlements since November, 2015. Under cross examination on 11/1/2018 by Defence Counsel, Claimant stated that in spite of the fact that his salaries and other entitlements were not paid from December 2015, he kept working until the expiration of his tenure, which he says is July, 2017. Claimant stated on oath under cross examination that he kept working even after he allegedly came to know of his removal. It therefore stands logic on its head and in fact, difficult to believe claimant’s story that he kept working from November, 2015 when his salary was stopped to July, 2017. Cited the case of AIGHUOKHIAN VS STATE (2004) 7 NWLR (PT. 873) 565 @ 576 PARA E – G PER PATS-ACHOLONU J.S.C. (as he then was). The evidence of Claimant as to his continuance on the job without pay for about a period of one year and nine months is manifestly hostile to reason.

SUBMISSIONS OF THE CLAIMANT

The Claimant in his written address dated and filed on the 16^th March, 2018 formulated two issues for determination as follows:

(i) Whether the Claimant whose contract of employment is governed by the provisions of the statute can be determined in a manner inconsistent with the statute.

(ii) Whether this suit is statute barred.

On the First Issue, that is whether the Claimant whose contract of employment is governed by the provisions of the statute can be determined in a manner inconsistent with the statute, the general principles of law governing the termination of employment depends on whether the termination is that of:

Termination of master and servant contract of employment; Termination of employment with statutory flavour; Termination of employment at will, and where there is a written contract of employment, it is outside the province of the court to look anywhere for the terms of termination of the contract other than in the written contract. Cited the case of KATTO VS CBN (1999) 6 NWLR (PT. 607) 390 @ 405 PARAS D – F.

The terms and conditions of contract of employment are the substratum of any case where the issue of wrongful termination of employment is called for determination. The importance of the terms of a contract of service in determining the question of termination of the contract was emphasized by MOHAMMED JSC in the case of IFETA VS. SPDC LTD (2007) 7 MJSC 121 at page 33 para 6. Submit that the documents i.e EXHIBITS CW001 and CW002 which constitute the contract between the Claimant and the 1^st & 2^nd Defendants invariably guide its interpretation. Section 4 of the extant law (EXHIBIT CW002) states that the Claimant shall hold office for a period of five (5) years and subject to a renewal of another term of five (5) years. Section 5 of the extant law establishing the 1^st Defendant states how the Claimant may be removed from office by the 2^nd Defendant and the reason of such removal is predicated on inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other case) or for misconduct. There is nowhere in the extant law to back the unlawful removal of the Claimant as the Director General of the 1^st Defendant as per announcements on 29/10/2016, 30/10/2016 and 31/10/2016. The Claimant’s appointment having a statutory flavour is protected by laid down procedure and not in accordance with the whims and caprices of the 2^nd Defendant. The Claimant’s piece of evidence that his appointment was not terminated in accordance with section 5 of the extant law remains unchallenged. That a contract of employment is governed by the provisions of a statute or where the conditions are derived from statutory provisions, it invests the employee with a legal status than the ordinary one of master and servant. Cited the authority of BALOGUN VS. UNIVERSITY OF ABUJA (2002) 13 NWLR (PT. 783) 43 at 53, A – C – H 62 @ paras D – G. It is the law that any employment which is protected by statute as in the instant case must be terminated in the way and manner prescribed by the extant law and any other manner of termination inconsistent with the statute shall be null and void and of no effect. The Defendants have not controverted this fact that the Claimant’s appointment is a statutory appointment with five (5) years tenor. Having not denied the existence of the five (5) year contract and the extant law cannot turn around to breach the provisions of the law. And it’s trite that where an employment is protected by statute, the employee who is unlawfully terminated would be entitled to re-instatement in his office and in addition damages representing his salaries during that period his contract was wrongfully terminated. Cited the authorities of SHITTA BAY VS. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 41; OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599.

And that Section 254C, Constitution of Federal Republic of Nigeria, 1999 (Third Alteration) gives this court powers to make orders for re-instatement and payment of all benefits the Claimant is entitled to as per the reliefs contained in the Complaint and Statement of Facts. Urge this Honourable Court to grant the Claimant the reliefs sought by him.

On the Second Issue, that is whether this suit is statute barred, that the sole issue raised by Counsel to the Defendants for the determination is that this suit is statute barred having commenced after three months outside the statutory period provided in the Public Officers (Protection) Law of Bayelsa State. It is trite that to know whether a suit is statute barred, the court will look at the date the cause of action arose and compare with the date when the suit was filed. When the period in-between is more than the period limited by the statute under reference, the suit is statute-barred. Cited SULGRAVE HOLDINGS INC VS. F.G.N. (2012) 17 NWLR (PT. 1329) 309. The Claimant’s cause of action as disclosed on the Complaint, is the determination of his employment. The Claimant’s averments in paragraphs 25, 26, 27, 29 of the Statement of Facts, paragraphs 23, 24, 25, 26 and 27 of the Claimant’s Written Statement on Oath filed on 24/11/2016 and paragraphs 9 and 10 of the Further Written Statement on Oath filed on 6/12/2017 show that the termination occurred in October, 2016. That the Claimant’s cause of action arose in October, 2016. The Originating Processes of the Claimant’s suit was filed on 24/11/2016, the period that was less than one month. EXHIBIT CW 022 (Letter of Appointment of the 4^th Defendant as Acting Director General of the 1^st Defendant) to replace the Claimant is clear and speaks for itself. It is the totality of the averments in the Statement of Claim that determines the accrual cause of action. Refer to the case of OMOMEJI VS. KOLAWOLE (2008) 14 NWLR (PT. 1106) 180 @ 205. The position of law echoed by Supreme Court in the case of ALGUOKHIAN VS. STATE (2003) FWLR (PT. 146) 822 @ 833 is that courts are more interested in doing justice to parties rather than by resulting in technical justice because technical justice is not justice according to law but justice on technical rules which no longer has any place in judicial discourse. The objection raised by the Defendant’s Counsel in the Final Written Address dwells in the realm of technicality attempting to challenge the Claimant’s claims before this Honourable Court and not the substance of the case.

Further submit that the argument of the Defendants by virtue of Section 1of the Public Officers (Protection) Law CAP P18 Laws of Bayelsa State, 2006, this suit is statute barred since it is instituted outside three months after the “cause of action accrued on 15/2/2016” is misconceived untrue and brought in bad faith. That paragraphs 11, 12, and 14 of the Further Written Statement on Oath and under cross-examination, the Claimant’s position that he was still discharging his duties as the Director-General of the 1^st Defendant remains unchallenged by the Defendants. This is supported by EXHIBITS CW003 – CW013 which clearly speak for themselves. That EXHIBITS DW001 & DW002 cannot even be relied upon by this Honourable Court as same has not complied with the relevant provisions of the Evidence Act, even just for the sake of argument there is nothing in EXHIBITS DW001 & DW002 to show that the Claimant was relieved of his appointment which is governed by statute. There is no mention of the name of the Claimant in the purported radio announcement which the Defendants claimed was made on 15/2/2016. EXHIBITS DW001 & DW002 are public documents within the meaning of Section 102 of the Evidence Act, 2011. The Defendants tendered EXHIBITS DW001 & DW002 as “Certified True Copies”. The Defendants claimed the documents were certified copies whereas they are not, having not complied with the requirements for admissibility of certified true copies. In this case, the Defendants tendered copies of EXHIBITS DW001 & DW002 as “Certified True Copies” but the Defendants did not comply with the requirements for admissibility of public document by secondary evidence. The purported “certified true copies” before this court are inadmissible in law. Refers to Section 104 (1) of the Evidence Act 2011.

EXHIBITS DW001 & DW002 have not met the requirements of Section 104 (1) Evidence Act. Apart from non-payment of legal fees by the Defendants, there is no certificate written at the foot of EXHIBITS DW001 & DW002. That having not satisfied the requirements of the provisions of Section 104 (1) Evidence Act, they do not qualify as properly Certified True Copies which can be admissible evidence of their contents. Cited AGBAN Vs. INEC (2009) ALL FWLR (Pt 449) 594 CA. And where an inherently inadmissible evidence which encompasses documentary evidence is admitted, even without opposition from the adverse party, a court which received it in evidence and as an appellant court have the power or duty to reject and expunge the inadmissible evidence at judgment stage and on appeal because a court of law acts only on legal evidence. Cited the case of TABIK INVEST LTD Vs. GTB (2011) LPELR SC 101/2005. The Defendants’ witness seemed to know nothing about the case from his testimony. And that EXHIBITS DW001& DW002 were made during the pendency of the proceedings of this case by the Defendants and therefore they are inadmissible in law and liable to be expunged by this court and/or appellate court. The Exhibits are caught by Section 83 (4) of the Evidence Act, 2011. That this Honourable Court is empowered to apply International best practices in Labour and Employment Matters before it. Cited Section 254C (f) Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2011. That Nigeria is a signatory to International Labour Organization Treaties and conventions are therefore enforceable in Nigeria under the CFRN, 1999 (Third Alteration) Act, 2011. This court has power to apply International Conventions on Labour and Employment. The court is therefore empowered to apply International Labour Organization Convention, 1982 (No. 158) and Recommendation No. 166 in matters of termination of employment by an employer. The purported termination of the Claimant vide radio announcement is in total breach of Article 4 of the Convention on Termination of Employment.

Finally, the Claimant’s employment being the one regulated and governed by statute setting the 1^st Defendant, he is entitled to reliefs of reinstatement as well as claim for damages. Urge this court to grant all the reliefs sought by the Claimant in this suit.

DEFENDANT’S REPLY ON POINT OF LAW

The Defendants filed a joint reply on points of law to the Claimant’s Final Written Address. The reply is filed on the 20^th March 2018, where Learned Counsel to the Defendants submitted that the issue of an action being statute barred as raised by the Defendants is applicable to both contract of employment governed by the statute and a written contract. This is because the Public Officers (Protection) Law is applicable as long as it is between a public officer and its servants/or employees. Cited the decision of the Court of Appeal in TAJUDEEN VS CUSTOMS IMMIGRATION & PRISONS SERVICES BOARD (2010) ALL FWLR (PT. 522) 1740 AT 1742 RATIO 2. The Court held that what is to be considered in determining the applicability of the Public Officers (Protection) Act to a public officer under a contract of employment is whether the facts constituting the Complaints in the case arouse out of a specific contract or a Complaint against an act done in the performance or execution of a public duty. The fact that the Defendants never challenged the averments in respect of the mode of removal of the Claimant is of no moment once an action is adjudged to be statute barred.

On the issue that EXHIBITS DW001 and DW002 are not admissible on the ground that they have not satisfied the Provisions of Section 102 and 104 of the Evidence Act same being public documents, And also that same were made during the pendency of this trial contrary to Section 83(4) of the Evidence Act 2011 and for this court to expunged same even though same were admitted in evidence; the Defendants submitted that the documents had satisfied all the requirements of the law and hence admissible. And this court can not expunged same since same were admitted already. Cited the authorities AWUSE VS ODILI (2005) 16 NWLR (PT. 952) 416 AT 477 PARAS G – H; OKELOLA VS ADELEKE (2004) 13 NWLR (PT.890) 307 AT 313 RATIO 6; The dictum of Peter Odili JSC in EZECHUKWU VS ONWUKA (2016) ALL FWLR (PT. 824) 148 AT 174 PARA B; TABIK INVESTMENTS LTD VS G.T.B PLC (2011) ALL FWLR (PT.602) 1592 AND AGAGU VS. MIMIKO (2009) FWLR (PT. 462) 1122 AT 1170 – 1171 PARAS G – A.

On the prayer of the Claimant on this court to apply International Labour Organization, treaties and conventions pursuant to Section 254 C (f) of the (Third Alteration Act) 2011 of the CFRN in deciding this case, counsel to the Defendants submitted that International treaties entered into between Nigeria and any other country or body has no force of law except enacted into law by the National Assembly. Cited the decision of the Supreme Court in the case of R.T.N.A.C.H.P.N vs. M.H.W.U.N (2008) 2 NWLR (Pt. 1072) 572 at 587 Ratio 6.

Finally the Defendants urged this court to uphold on their arguments and dismiss the case of the Claimant for being statute barred.

COURT’S DECISION

I have read and understood the processes filed by the Learned Counsels for the parties in this suit. I heard the testimonies of the witnesses called on oath by the parties, watched their demeanor and carefully evaluated all the Exhibits tendered and admitted. I also heard the Oral Submissions of Learned Counsel for either side. Having done all these, I narrow the issues for the just determination of this case down to the following:

(a) Whether the Claimant’s suit is statute barred thereby robbing this court of the jurisdiction to entertain same.

(b) Whether taking into consideration the circumstances of this case, the Claimant has proved his case to be entitled to all or some of the reliefs sought.

On the First Issue of whether Claimant’s suit is statute barred thereby robbing this court of the jurisdiction to entertain same, for the sake of clarity Section 1 (a) of the Public Officers Protection Law Cap P18 Laws of Bayelsa State 2006 provides:

Section 1:

“Where any action, prosecution, or other proceeding 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 such law, duty or authority, the following provision shall have effect –

(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof…”

From the wordings of this law any action sought to be commenced against a public officer, same must be brought within three (3) months next after the accrual of the cause of action. And in other to ascertain when a cause of action arose, the court should look into the Statement of Claim or the Complaint as the case may be, for the date when the cause of action arose and the date when the action was filed. That is to say time begins to run for the purpose of Limitation Law from the date the cause of action accrues. See BRITISH AIRWAYS PLC VS. AKINYOSOYE (1995) 1 NWLR (PT. 374) 3 NWLR (PT. 382) 148 AT 156; AGI VS. ENO (2010) 5 NWLR (PT. 1188) PG 626 AT PG 641 PARAS B – C.

It is of legal importance to note that a legal right to enforce an action is not perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings can not be commenced in respect of same because the period laid down by the limitation law or act had elapsed, see ADEOSUN Vs. JIBESIN (2004) 14 WRN 106. And where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be validly or properly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute barred. See OSUN STATE GOVERNMENT VS. DANLAMI NIG. LTD (2007) ALL FWLR (PT. 365) 438 SC.

Note that the rationale behind the Limitation Law, limitation of action is the principle of law requiring the Plaintiff (Claimant) as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period (like the Public Officers Protection Act) in respect of a cause of action, accruing to the Plaintiff (Claimant), proceedings shall not be brought after the period prescribed by law; except the claimant can show that the case comes within any of the laid down exceptions. See DR. CHARLES OLADEINDE WILLIAMS VS MADAM OLAITAN WILLIAMS (2008) 4 – 5 SC (PT. II) 253. Public officers are not immune from suit under the Public Officers Protection Act. However, the law is that such a suit against a public officer must be instituted within a stipulated time or period provided by the statute, otherwise it becomes stale or statute-barred. See THE MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR VS. EXPO-SHIPPING LINE (2010) 12 NWLR (PT. 1208) 26 SC.

Its not in doubt that all the Defendants are public officers. And also the Claimant alleged that his appointment was terminated without following the due process of law. One of the basis why the Claimant instituted this action against the Defendants is that, the Defendants had acted outside the colour of their office and also outside their constitutional duty. The general purpose of Section 1 (a) of the Public Officers Protection Law as stated by the Supreme Court in the case of IBRAHIM VS. JUDICIAL SERVICE COMMISSION (1999) 14 NWLR (PT. 584) is that for any section to avail any public officer protection then the following conditions must be fulfilled:

(a) It must be established that the person whom the action is commenced against is a Public Officer or a person acting in execution of a public duties within the definition of the act; and

(b) The act done by the person in respect of which the action is commenced must be an act done in pursuance of or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of such law duty or authority.

Note that but despite these, the law recognizes two very important exceptions to that general rule. In A.G RIVERS STATE VS. A.G BAYELSA STATE & ANOR (2013) 3 NWLR (PT.1340) AT PG 148 – 150 PARA F – A, the Supreme Court outlined or recognizes the two very important exceptions as follows:

(a) Firstly in the case of continuance of damages or injury, an action can be brought outside the statutory three (3) months limitation period.

(b) Where the person relying on the Limitation Law acted outside the colours of his office or outside his statutory or constitutional duty.

See also the Supreme Court of I.N.E.C Vs. OGBADIBO LOCAL GOVT. (2016) 3 NWLR (PT. 1488) PG 205.

Furthermore, the law is settled that a cause of action arises on the date the breach of duty occurs or when all the facts which are material to the success of the claim have occurred. And an action is commenced on the date the application for the issuance of the writ or other originating process is made and the necessary fees paid. See WHOHEREM VS EMERUWA (2004) 6 – 7 161 AT 168 PARA 40. And the yardstick for determining whether an action is statute barred include the following:

(a) The date when the cause of action accrued.

(b) The date of commencement of the suit as indicated on the writ of summon or other originating process.

See AJAYI VS ADEBIYI (2012) 5 SCNJ 458 at 481.

Having said all these by the provisions of Section 1 (a) of the Public Officers Protection Law Cap P18, laws of Bayelsa State 2006 an action against any public officer can not be maintained three months after the accrual of the cause of action. And from paragraph 25 of the Statement of Facts the Claimant averred that he only came to know about the termination of his appointment from the 4^th Defendant that his appointment was terminated through radio announcement on the 29/10/16, 30/10/16 and 31/10/2016. Therefore one can say that the cause of action accrued on the very day that the Claimant became aware about the termination of his appointment. And this suit was instituted on the 24^th November, 2016, that is to say almost 9 month after the alleged termination of appointment of the Claimant. But looking at EXHIBIT DW001 one can see that the announcement was made on the 15^th February, 2016, while the 4^th Defendant was appointed effective from 10^th October, 2016 (See EXHIBIT CWDR 021).

Assuming but not conceding to the fact that the Claimant’s appointment was terminated on the 15^th February, 2016 as per EXHIBIT DW 001 and the Claimant instituted this action on the 24^th November, 2016, that is to say nine months after the cause of action has accrued in contravention of Section 1 (a) of the Public Officers Protection Law Bayelsa State, But the ground upon which the Claimant instituted this action is that the 2^nd Defendant failed to comply with the procedure for removing the Claimant as contained in the Bayelsa State Agency for the Control of HIV/AIDS (Establishment) Law, 2012 which statutorily fixed the tenure of the Claimant for five years, his appointment or contract being one with statutory flavour. In other words the 2^nd Defendant acted outside the colours of his office or outside his statutory duty and as such can not enjoy any protection as same forms part of the exceptions outlined in the case of A.G RIVERS STATE VS. A.G BAYELSA STATE (SUPRA); KANU VS GOVT. OF ABIA STATE & ORS (2016) 67 N.L.L.R (Pt. 249) N.I.C.

In view of the foregoing facts as enumerated ab-initio it’s my ardent belief that this action is not statute barred and as such this court has the jurisdiction to hear same and I so hold. I resolved the first issue in favour of the claimant.

On the Second Issue of whether taking into consideration the circumstances of this case, the Claimant has proved his case to be entitled to all or some of the reliefs sought, it’s trite that there are roughly three categories of contract of employment, these includes those regarded as purely master and servant, those where a servant holds office at the pleasure of the employer; and those where the employment is regulated or governed by statute, otherwise known as having statutory flavour. See CENTRAL BANK OF NIGERIA Vs. IGWILLO (2007) 14 NWLR (pt. 1054) 393; LONGE Vs. FBN PLC (2010) 6 NWLR (Pt. 1189) 1 SC.

Furthermore, under a contract of employment with statutory flavour, the court is not entitled to look outside the contract of service as to the terms and conditions. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See the case of DAODU VS. U.B.A PLC (2004) 9 NWLR (PT. 878) 276 C.A; AKINFE VS. U.B.A PLC (2007) 10 NWLR (PT. 1041) 185.

Having said all these, there is no any doubt about it that by the combined effect of EXHIBITS CWDR 001 (Letter of Appointment) and EXHIBIT CWDR 002 (Bayelsa State Agency for the Control of HIV/AIDS (Establishment) Law, 2012 the appointment of the Claimant is one with statutory flavour. This is because section 8 (1) (a) of the law which established the 1^st Defendant (EXHIBIT CWDR 002) categorically stated that the Claimant is to be appointed by the 2^nd Defendant and he was indeed appointed by the 2^nd Defendant vide EXHIBIT CWDR001. And the tenure of the Claimant is statutorily fixed for five years as contained in section 8 (3) of the Bayelsa State Agency for the Control of HIV/AIDS (Establishment) Law, 2012 (EXHIBIT CWDR 002) and the procedure for the removal of the Claimant is provided in Section 5 (1) of EXHIBIT CWDR 002 which stated as follows:

“The Director General or any member of the board of the agency may be removed from office by the Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or misconduct.”

And there is no where either in the Joint Statement of Defence of 1st and 4^th Defendants or the testimony of DW1 to show or suggest that the Claimant was removed as a result of any or all of the reasons outlined in Section 5 (1) of EXHIBIT CWDR 002. The submissions made by Counsel to the Defendants that the Claimant holds the office of the Director General of the 1^st Defendant at the pleasure of the Governor is a total misconception of the law. And also the argument canvassed by the counsel that the Claimant was never removed as the Director General of the 1^st Defendant since EXHIBITS DW 001 and DW 002 does not contain the name of the Claimant; assuming that is true, then what is the position of EXHIBIT CWDR 021 which is the appointment letter dated 11^th October, 2016 and addressed to the 4^th Defendant intimating him of his appointment as the acting director general of the 1^st Defendant while the Claimant was neither on suspension or on leave?. The said Exhibit automatically tends to suggest that the Claimant was relieved of his appointment which is in contravention to Section 5 (1) of the law establishing the 1^st Defendant. And it’s trite that where the terms and conditions of contract of employment are specifically provided for by the statute or regulations made there under, it is said to be a contract protected by statute or in other words, an employment with statutory flavour. See KUTI VS. NSITFMB (2016) 67 N.L.L.R. (PT. 240) 426 NIC.

Furthermore where there are rules and regulations governing the termination of an appointment which is protected to some extent by the conditions of service (like in this case) such rules and regulations dealing with the procedure for bringing an employee’s employment to a lawful end must be complied with. Such an employee can not be removed from the service at the whim and caprice of his employer. See SHITTA-BEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1SC AT 40; UNIVERSITY OF CALABAR VS. INYANG (2016) 67 N.L.L.R. (PT. 241) 483 CA. Therefore its not the position of the law for the counsel to the Defendants to assert that the Claimant hold the office at the pleasure of the 2^nd Defendant. And to attest to the fact that the Claimant was removed from office, the last time that the Claimant received his salary as indicated in his GTB salary account was on 4^th December, 2015 which was his November, 2015 salary. (See paragraph 21 and 15 of the Witness Deposition on Oath and Further Witness Written Statement on Oath respectively).

Finally, the Court of Appeal in ADAMS Vs. L.S.D.P.C (2000) 5 NWLR (PT. 656) 291 CA stated that in an action for wrongful termination of appointment for the Claimant to succeed the Claimant must plead and prove that he was employed by the Defendant(s), the terms and conditions of his appointment including duration and termination, who can appoint and remove him, the circumstances under which his appointment can be terminated. The claimant has pleaded and proved all these vide EXHIBITS CWDR 001 which showed that it was the 2^nd Defendant who appointed the Claimant and by EXHIBIT CWDR 002 the tenure of office as stipulated in Section 8 (3) is for a period of five years. And the Claimant vide EXHIBIT CWDR 001 was appointed on the 10^th July, 2012as such his tenure will elapsed or expires on the 10^th July, 2017. And without complying with the provisions of Section 5 (1) (a) (b) of EXHIBIT CWDR 002 which provided for the procedure for the removal of the Claimant, the 2^nd Defendant vide radio announcement as contained in EXHIBITS DW 001 and DW 002 illegally removed the Claimant on 29/10/2016 and appointed the 4^th defendant in place of the Claimant thereby abruptly terminated or ended the tenure of the Claimant.

In view of the foregoing facts I enumerated ab-initio I felt the Claimant has satisfactorily proved his case and as such he is entitled to reliefs (a) (c) (g), while reliefs (b) (d) (e) (f) had been overtaken by events since the tenure of the claimant ought to terminate on the 10^th July, 2017.

On claim (h) which is payment of (N100, 000,000) One Hundred Million Naira to the Claimant against the Defendants for embarrassment, humiliation, denigration and psychological trauma caused to the claimant by the defendants unwarranted acts of purported removal of the Claimant through radio announcement by the agents of the 2^nd Defendant, its pertinent to state here that the Claimant is entitled to compensation or damages in any circumstance contemplated dealing with any matter that the court has jurisdiction. The Claimant having proved his case in line with the provisions of Section 19 (d) of the NIC Act 2006, I order the Defendants to pay the sum of N5,000,000.00 (Five Million Naira) to the Claimant as damages.

Finally for the avoidance of doubt and for all the reasons as stated in this judgment.

I declare that the purported removal of the Claimant as the Director General/Chief Executive Officer of the 1^st Defendant through radio announcement on 29/10/2016, 30/10/2016, 31/10/2016 and/or howsoever thereafter by any or all of the Defendants is not in compliance with the extant law establishing the 1^st Defendant and therefore null and void, and of no effect whatsoever.

The said purported removal of the Claimant by the 2^nd Defendant through announcement as the Director General/Chief Executive Officer of the 1^st Defendant is hereby set aside.

The 1^st and 2^nd Defendants are hereby ordered and directed to pay to the Claimant arrears of his salaries together with his entitlements from the month of December, 2015 to 10^th July, 2017 when his tenure officially ended.

The 1^st and 2^nd Defendants are hereby ordered and directed to pay to the Claimant the sum of N5,000,000 (Five Million Naira) as damages for the embarrassment , humiliation and denigration caused by the unwarranted acts of the Defendants.

Claims (b) (d) (e) (f) having been overtaken by events the Claimant’s tenure having been expired or extinguished on the 10^th July, 2017 same are hereby dismissed.