Prof. E.L.C. Nnabuife -VS- Nnamdi Azikiwe University & 4 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.

DATE: OCTOBER 18, 2019 SUIT NO: NICN/AWK/14/2016

BETWEEN

Prof. Ezimma Kate Nnabuife
Mrs Ezinne Iloh

(substituted for late Prof. E.L.C. Nnabuife by

order of Court made on 21^st Nov 2018)- – – Claimant

AND

Nnamdi Azikiwe University
The Governing Council,

Nnamdi Azikiwe University

Prof. Joseph Ahaneku

(Vice Chancellor, Nnamdi Azikiwe University)

Dr. I.H. Isidienu

(Registrar, Nnamdi Azikiwe University)

Mrs. J. N. Ojukwu

(Bursar, Nnamdi Azikiwe University) – – – – – – -Defendants

REPRESENTATION:

P.A. Afuba with N.E. Awa, C.E.Odo, N. Nwodo, N.J.U Nwabunwanne, J.N Maduechsi for the Claimant

P.S. Ejimofor with H.N.C. Moghalu for the defendants

JUDGMENT

By an originating summons taken up against the defendants dated and filed 1^st June, 2016, the claimant (then Prof. E.L.C. Nnabuife) prayed for the determination of certain questions. By order of Court made on 21^st November, 2018 amending the originating summons, the 1^st and 2^nd claimants substituted late Prof. E.L.C. Nnabuife, the following questions are now submitted for determination:
Whether the deceased former claimant substituted by the extant claimants, whose employment with the 1^st defendant was wrongfully terminated on 11^th April, 2006 by the defendants and the said former claimant having been exculpated of the false charges leading to the wrongful termination of his employment and recalled by the defendants on 1^st May, 2010, was entitled to his full salaries during the period whose employment with 1^st defendant was wrongfully terminated by the defendants.
Whether the former claimant, who took appointment as a Lecturer in Anambra State University, Uli in mitigation of damages/injuries being suffered during the period of time whose employment with 1^st defendant was wrongfully terminated (11^th April, 2006 to 31^st July, 2010), was precluded by the provisions of chapter 14:3a of Nnamdi Azikiwe University Senior Staff Conditions of Service Rules from getting the difference between his salaries as a Professor in the 1^st defendant and the lesser salaries he earned at Anambra State University during the aforesaid period of time.

The claimants then prayed for the following reliefs:
a)A declaration that former claimant having been wrongfully disengaged from the service of the 1^st defendant on 11^th April, 2006 and recalled by the defendants on 1^st May, 2010, was entitled to receive his full salaries as a professor in the 1^st defendant during the period the wrongful termination of his employment lasted.
b)A declaration that the former claimant whose employment with the 1^st defendant was wrongfully terminated by the defendants and who took appointment as a Lecturer in Anambra State University in mitigation of damages being suffered as a result of the wrongful termination of his employment was entitled to receive from the defendants the difference between his salaries as a professor in the 1^st defendant and his lesser salaries as a professor in Anambra State University during the period he worked for Anambra State University.
c)An order directing the defendants to pay the claimants the sum of N7,489,595.42 (Seven Million, Four Hundred and Eighty Nine Thousand, Five Hundred and Ninety Five Naira, Forty Two Kobo) being the difference between the former claimant’s salaries as a professor in the 1^st defendant and his lesser salaries as a professor in Anambra State University for the period July 2006 to July, 2010.
d)Interest on the sum of N7,489,595.42 at the rate of 25% (Twenty Five percent) per annum from July, 2010 till the date of Judgment in this case.
e)Interest on the total Judgment sum at the rate of 25% (Twenty Five percent) per annum from the date of judgment to the date of liquidation of the judgment sum.
f)The sum of N2,000,000.00 (Two Million Naira) being the general damages.

In reaction, the defendants filed a preliminary objection supported by an affidavit and a written address urging this Honourable Court to strike out and/or dismiss the originating summons/suit for want of jurisdiction and competence on the part of the Court and for the cause of action being statute barred and an abuse of Court process. The grounds of this application are as follows:
That the claimants’ cause of action arose on the 10^th day of May, 2010 when the claimant(s) was recalled and required to resume work.
That by the provisions of Section 2(a) of the Public Officers Protection Act, the claimant(s) was supposed to bring his claim(s) within three months period prescribed by the said law
That the action of the claimants is statute barred having been filed outside the 3 months period as required under the Public Officers Protection Act.
That this Honuorable Court lacks jurisdiction to hear this suit of the claimant(s).
That all the defendants in the suit against whom the action is commenced are public officers acting in the execution of public duties within the meaning and context of the Public Officers Protection Act.
That it will be in the interest of justice to dismiss and/or strike out this originating summons/suit.

THE SUBMISSIONS OF THE DEFENDANTS ON ITS PRELIMINARY OBJECTION

It is submitted by the defendants that this suit filed by the claimant(s) against the defendants, is statute barred; that the above is so because all the defendants are public officers protected by the Public Officers Protection Act, Cap P41 Laws of the Federation, 2004. That the 1^st defendant is a public officer protected by Section 2(a) of the Public Officers Protection Act is not in doubt. Reliance was placed on University of Jos v. Dr M.C Ikegwuoha (2013) 9 NWLR part 1360 page 478.

The defendants went on that in his originating summons, the claimant clearly showed in Exhibits H and I that his cause of action in the originating summons arose in 2010 when the defendants refused and/or neglected and/or failed to pay him what he demanded; that by the operation of the above law, he was supposed to have commenced action against the defendants within three months from the date of accrual of the cause of action. That the claimant has now brought this action six years after the accrual of the cause of action against persons who are protected by Section 2(a) of the Public Officers Protection Act; that the effect of the above delay is that the claimant has lost his right to make the demand he is now making; that it is a legal maxim that delay defeats equity and equity aids the vigilante. That in the instant case, the case of the claimant is defected (sic) and cannot be remedied; and the Court is therefore urged to strike out and/or dismiss the originating summons

THE SUBMISSION OF THE CLAIMANT(S) IN OPPOSITION TO THE PRELIMINARY OBJECTION

The claimant submitted two issues for determination, namely:
Whether the instant suit is statute barred
Whether the 1^st and 2^nd defendants/ applicants are public officers for the purpose of the Public Officers Protection Act, 2004.

On issue (1), the claimant(s) submitted that in calculating when the cause of action in the matter arose for the purpose of determining whether or not this suit is statute barred, the Honourable Court would necessarily restrict itself to the originating summons and the affidavit in support of the originating summons in this suit and not take cognizance of any date set up by the defendants/applicants in any of their processes in this suit which includes their supporting affidavit to the notice of preliminary objection. See Moyosore v. Governor of Kwara State (2012) 5 NWLR (Pt. 1293) 242 at 284. That as the defendants/respondents have not filed any counter-affidavit in opposition to the substantive suit before filing this notice of preliminary objection, it is deemed that the defendants/applicants have for the purpose of the preliminary objection admitted all the facts deposed by the claimant/respondent in the supporting affidavit to the substantive suit. See Woherem v. Emerouwa (2004) 13 NWLR (Pt. 390) 398.

The claimants continued that the law is settle that a cause of action is the aggregate of facts which when proved, entitles a claimant to a relief under the law. See Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669. That claimant/respondent is by this suit asking the Court to determine whether by the provisions of Chapter 14:3a of Nnamdi Azikiwe University Senior Staff Conditions of Service Rules relied on by the defendants/applicants in Exhibit M, he is not entitled to the difference in the salaries he received as a professor under the employment of the 1^st defendant/applicant and the lesser salaries he received as a professor in Anambra State University, Uli between the period his employment was wrongfully terminated by the defendants/applicant (sic) and his later recall to his duty by the defendants/applicants. Claimant submitted that the Honourable Court cannot determine the instant suit without considering Exhibit M wherein the statutory provisions were relied on by the defendants/applicants to refuse the claimant/respondent’s request; that Exhibit M is the aggregate of facts which gave the claimant/respondent the right to take the instant action against the defendant/applicant (sic); that this action could not have been brought without it. That as shown in the supporting affidavit to the substantive suit and as submitted by the claimant’s Counsel, the cause of action in this suit arose on 23^rd March, 2016 when the claimant/respondent received Exhibit M- the defendants/applicants’ letter dated 13^th November, 2014, and not any other date before; that it was the date the fate of the claimant/respondent as to whether he would be paid the said difference in salaries or not was categorically stated by the defendants/applicants as well as the reason for their refusal to do so; that relying on the case of Unijos (sic) v. Ikegwuoha (supra) as cited by the defendants/applicants as the case does not support the defendants/applicants’ case but rather favours the claimant/respondent’s stance that the cause of action in this suit arose on 23^rd March, 2016 when he received Exhibit M. See particularly pages 493, 494 and 495 of Unijos (sic) v. Ikegwuoha (supra).

The claimant went on that when the Court looks at the originating complaint in this suit, the Court will find that the claimant/respondent instituted this suit against the defendants/applicants on 1^st June, 2016 which is within 3 months from 23^rd March, 2016 after he was served with Exhibit M; and urged the Court to so hold.

To the claimant, even in the event that the Court seeks to consider defendants/applicants’ letter of 10^th May, 2010, it is respectfully submitted that the said letter having been superseded by Exhibit M cannot be countenanced by the Court; that as stated by the defendants/applicants in Exhibit M, Exhibit M superseded the defendants/applicants’ ealier letters of 30^th August, 2012 and 11^th February, 2013. That in turn, the defendants/applicants’ letter of 30^th August, 2012 superseded their ealier letter of 10^th May, 2010; that the only letter from the defendants/applicants that is subsisting and upon which the claimant/respondent’s action could be properly founded and is indeed founded is Exhibit M, which superseded all the defendants/applicants’ ealier letters. On what ‘supersede’ means, claimant referred to Adewunmi v. A.G. Ondo State (1996) 8 NWLR (pt.464) 73 at 104 and Blacks Law Dictionary 5^th Edition.

Flowing from the authorities cited above, claimant submitted that the defendants/applicants had set aside all their ealier letters to the claimant/respondent on the subject matter of the suit in favour of Exhibit M; that Exhibit M is the only extant letter on which the instant action can be founded; that as the defendants/applicants averred in Exhibit M that the letter superseded all their ealier letters including the letter dated 30th August, 2012 which had superseded their letter dated 10th May, 2010, the defendant/applicants are estopped by conduct from relying on the letter dated 10th May, 2010 which they had expressly set aside, to found their argument in this suit. See Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755)699 at 714-715 and Alhaji A. Olalekan .v. Wema Bank Plc (2006) 13 NWLR (Pt. 998) 617 at 625-626. Specifically, the claimant’s point here is that the defendants/applicants having by their own act, expressly set aside, obliterated, annulled and voided their letter of 10th May, 2010 and all their other subsequent letters except of course their last letter of 13th November 2014, and the claimant/respondent having brought this action based on the defendants/ applicants only subsisting letter of 13th November, 2014, the defendant/ applicants can no longer be allowed to place reliance on their letter of 10th May, 2010; that indeed, the said letter of 10^th May, 2010 has since ceased to exist both in fact and in law.

It is the claimant’s contention that the conduct of the applicants in seeking to rely on their letter of 10th May, 2010 when they themselves had ealier obliterated, set aside, annulled and voided the said letter by way of suppression with another letter clearly amounts to an attempt to approbate and reprobate at the same time which the law completely prohibits. See Laloye & ors v. A.G. Osun State & ors (2014) LPELR 23795 (CA). The claimant went on to submit that the claimant/respondent having commenced this action on 01/06/2016 as endorsed in the originating summons in this suit, which is within three months from 23/03/2016 when the cause of action accrued in this suit upon his receipt of Exhibit M from the defendants/applicants, the instant suit is not statute barred pursuant to section 2(a) of the Public officers Protection Act, 2004; and urged the court to hold.

Regarding issue (2) whether 1st and 2nd defendants/applicants are public officers for the purpose of the Public Officers Protection Act,2004, claimant submitted that 1st and 2nd defendants are not even public officers for the consideration of whether or not the Public Officer Protection Act applies to this suit to arise; that the case of Unijos v. Ihegwuoha (supra) relied on by the defendants/applicants to submit that the 1st defendant/applicant is a public officer is rather an obiter dictum and not a ratio decidendi capable of binding the court by the doctrine of stare decisis. That the decision of Alagoa, JSC that the University of Jos is a public officer was a statement made in passing by the Justice of the Supreme Court as the question of whether or not the University is a public officer was not in issue in that case; that the said decision has no binding effect on this court; citing Ibrahim v. JSC Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 79 on the definition of obiter dictum. The claimant went on that in Oyo State Board of Internal Revenue v. University of Ibadan (2014) All FWLR (Pt.736) 595 at 608, it was held that the University of Ibadan was not a public officer for the purpose of the Public Officers Protection Act; and that Attorney General Rivers State v. Attorney General Bayelsa State (2013) All FWLR (Pt. 699) 1087, it was held that the National Boundary Commission was not a public officer for the purpose of the Public Officer Protection Act; and same held in respect of the Central Bank of Nigeria in CBN v. Njemanze (2015) 4 NWLR (Pt. 1449) 276 at 284 – 285 by the Court of Appeal per Agbo, JCA.

Flowing from the above authorities, claimant submitted that the 1st defendant/ applicant which is a Federal Institution and the 2nd defendant/ applicant, being unqualified to be members of the public service of the Federation under section 318 of the 1999 Constitution are therefore not public officers for the purpose of the Public Officers Protection Act, 2004; that the Public Officer Protection Act therefore does not apply to the 1st and 2nd defendant/applicant; and claimant urged the court to so hold. The claimant went on that where the court agrees with claimant’s submission that the 1st and 2nd defendants/ applicants are not public officers for the purpose of the Public Officers Protection Act, but holds (which is unlikely) that the suit is statute barred with respect to the 3rd to 5th defendant/ respondents (sic) and consequently strike their names out, the claimant urged the court in such circumstance to hold that the suit is still maintainable against the 1st and 2nd defendants/ applicants. That the law is settled that in such a situation, in so far as the court can effectively and effectually deal with the matter before it as regards the rights and interest of the remaining parties, the action would be sustained; placing reliance on Green v. Green (1987) 3 NWLR (Pt. 61) 480; and praying the court to hold that the suit is not statute barred; and to dismiss the notice of the preliminary objection.

DEFENDANTS/APPLICANTS’ REPLY ON PONIT OF LAW

In the main, the defendant/applicants reply on point of law is merely a rehash of its arguments in the final written address. I shall according highlights one or two points of their arguments that are appropriately replies on points of law. On claimants submission that the defendants/ respondents have not filed any counter – affidavit in opposition to the substantive suit before filing notice of preliminary objection, the defendants/applicants argued that a good ground of law when diligently canvassed by the defendants have (sic) the effect of dismissing the suit of the claimant “in limine” ; that this is always a complete defence to the action hence the defendants are not obliged to file any statement of defence or counter affidavit before raising the objection; citing Barry v. Eric (1998) 8 NWLR (Pt. 562) 405. That, alternatively, the defendants may in their statement rely on the grounds of law they consider a complete answer to the claim of the plaintiff/claimant.

Turning to whether the 1st and 2nd defendants/applicants are public officers for the purpose of the Public Officers Protection Act, 2004 the defendants maintained that 1st and 2nd defendant (sic) are a public officer (sic) protected by section 2 (a) of the Public Officer (sic) Protection Act; that the decision of the Supreme Court in Unijos v. Ikegweoha (supra) was a ratio decidendi as contained in Ratio 1(one) of the law report of that case; and capable of binding this Court by the doctrine of stare decisis, that the decision of CBN v. Njemanze (supra) heavily relied upon by the claimant/respondent was a Court of Appeal decision.

THE SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS

To the claimant, the law is settled that when an employee is wrongfully dismissed or when his employment is wrongfully terminated, the measure of damages to be awarded by the Court is Restitutio in Intergrum; that this principle is applicable to both private employment contract and employment with statutory flavour. That in the case of employment with statutory flavour as in the instant case, the position of the law is that the wrongfully dismissed employee will be reinstated, and upon being reinstated, he shall be paid all the salaries and entitlements which he would have received if not for the wrongful termination of his employment. See Barth Ozoana v. Public Service Commission (1995) 4 NWLR (Pt. 391) 629 at 623. That the defendants by Exhibits F, J and M, and having paid the claimant the balance of his salaries for the ten months he was placed under suspension with half salary and also paid his salary for the first two months of the period his employment was terminated when he was not employed at all, have conceded that the claimant is entitled to his full salary as a professor in the 1^st defendant between 11^th April, 2006 when his employment was wrongfully terminated and 1^st May, 2010 when he was reinstated. Claimant urged the Court to resolve the first question he raised in his originating summons in the affirmative.

The claimant went on that the next and main question to be resolved in this suit is whether the claimant is entitled to receive the difference between his salary as a professor in the employment of the 1^st defendant and the lesser salary paid to him at Anambra State University between 12^th July 2006 and 31^st July, 2010 – part of the period his employment was wrongfully terminated. To the claimant, it appears the defendants are ignorant of the age-long principle of mitigation damages in labour jurisprudence; that the principle is that when an employee is wrongfully dismissed from service, it is advisable for the employee to engage himself in any work in mitigation of damages/injuries being suffered as a result of the wrongful dismissal, pending when he is reinstated; that upon being reinstated, the employee will be paid the amount be would have earned had the employment continued according to the contract of employment less the amount earned by the employee from other employment during the period he was wrongfully dismissed. See Shell Petroleum Development Company Ltd v. Olanrewaju (2008) 18 NWLR (pt. 1118) 1; Okungbowa & ors v. Governor of Edo State & ors (2014) All FWLR (pt. 753) 1975 at 2017; G.B. Olivant (Nig) Ltd v. Agbabiaka (1972) 2 SC. (Reprint) 127 or (1972) LPELR- 1259 (SC).

The claimant continued that it is even a duty upon a wrongfully dismissed employee to seek other employment, if such other employment is available, pending when he is reinstated by the employer that wrongfully dismissed him. That the rationale for seeking such other employment is to minimize the losses being suffered by the wrongfully dismissed employee. See Akinbiyi v. Lagos Island Local Govt.Council & ors (2012) LPELR- 19839 (CA); Benin Rubber Producers Limited v. Ojo (1997) 9 NWLR (Pt. 521) 388. That the fact that a wrongfully dismissed employee took up an appointment in other organization in mitigation of losses being suffered for wrongful dismissal cannot be a ground for him not to be paid the salary due to him when he is reinstated. That what the law provides is that he will be paid the full salary he would have earned had his employment not being (sic) wrongfully terminated less the amount earned in other employment during the period the wrongful dismissal lasted. See Ekeagwu v. Nigerian Army (2010) 16 NWLR (Pt. 1220) 419; (2010) LPELR-1076 (SC).

The claimant submitted that in the instant case, his employment with 1^st defendant was wrongfully terminated on 11^th April, 2006; that he was reinstated on 1^st May, 2010; that in mitigation of damages, the claimant took up appointment at Anambra State University as a Lecturer on 12^th June, 2006 which lasted till 31^st July, 2010. That the claimant terminated his employment with Anambra State University on 31^st July, 2010 having been recalled and reinstated at the 1^st defendant on 1^st May, 2010; that the claimant worked with Anambra State University up to 31^st July 2010 because upon being recalled on 1^st May, 2010, he was required to give Anambra State University three-month Notice of termination of appointment. See Exhibit 1. That that being the case the defendants are liable to pay the claimant his full salaries as a professor in the 1^st defendant University from 11^th April, 2006 to 31^st July, 2010 less the amount of money earned by the claimant at Anambra State University between 12^th July, 2006 and 31^st July, 2010. That the defendants have paid to the claimant his salary for the months beginning from 11^th April, 2006 to 12^th June, 2006. See paragraph 22 of the supporting affidavit. That the claimant’s salaries that remain unpaid are the salaries for the period 12^th June, 2006 to 31^st July, 2010, less the amount the claimant earned at Anambra State University between 12^th July, 2006 (sic) and 31^st July, 2010 as shown in Exhibit O.

Furthermore, that the defendants in refusing to pay the claimant the arrears of his salaries as demanded by the claimant stated in Exhibit M that:

A public servant cannot hold two public offices at the same time and receive salaries simultaneously on the said service. The payment of salary for one automatically estops the payment of salary from the other.

That the defendant in arriving at their misconceived view as quoted above relied on the provision of Chapter 14:3(a) of Nnamdi Azikiwe University Senior Staff Condition of Service and Section 4: 030402(q) of the Federal Government Public Service Rules provides as follows:

A full time member of staff shall not accept another paid full time employment outside the University from whatever body or authority without having obtained prior approval from the Vice Chancellor.

Claimant submitted that the above quoted provision of the 1^st defendant’s Senior Staff Conditions of Service has no relevance to the issues for determination in this case, and is not applicable to the claimant in the instant case; that firstly, the above provision says absolutely nothing about payment of salaries, which is the central issue in this case; that secondly, the provision has no application to the claimant who was not a member of staff of the 1^st defendant, his appointment having been terminated, albeit wrongfully, at the time he accepted the appointment from Anambra State University in mitigation of damages being suffered as a result of the wrongful termination of his employment with the 1^st defendant. That for an employee to engage in other work in mitigation of damages when dismissed wrongfully cannot in law and in fact amount to engaging in two employments at a time.

Also, that the defendants in Exhibit M also relied on Section 4:030402(q) of the Federal Public Service Rules which provides that serious misconduct is a specific act of very serious wrong doing and improper behavior which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal; and that holding more than one full time paid jobs is an act of serious misconduct. It is further submitted by the claimant that this provision of the public service rules have no relevance whatsoever to the issue of payment of salary as raised by the claimant in this case. That claimant is not breach of these provisions of the public service rules; that claimant only demanded to be paid what he would have earned from the 1^st defendant, if not for the wrongful termination of his employment, less what he earned at Anambra State University in mitigation of damages. That the defendants should be praising the claimant for taking the appointment at Anambra State University during the aforesaid period of time; that this is because if the claimant did not work at Anambra State University, the defendants will be liable to pay the claimant his full salaries during the aforesaid period of time without the amount being minimized or mitigated by a kobo. That Exhibit O shows the total amount earned by the claimant at Anambra State University between 12^th July, 2006 and 31^st July, 2010; that the total salary the claimant would have earned as a professor in the 1^st defendant between 12^th July, 2006 and 31^st July, 2010 is N17,238,474.69; that if the amount earned at Anambra State University is subtracted from it, the balance will be N8,321,772.69. That N8,321,772.69 less 10% of it (being tax and compulsory savings) will give the sum of N7,489,595.42 being claimed by the claimant as relief (C). See paragraphs 30 to 33 of the supporting affidavit. Based on these submissions, claimant urged the Court to resolve the questions raised in this suit in the affirmative; and to grant all the reliefs sought by the claimant in this case.

THE SUBMISSIONS OF THE DEFENDANTS IN RESPECT OF THE ORIGINATING SUMMONS

The very issues and arguments the defendants raised in terms of their preliminary objection were the very issues and arguments they raised in opposition to the originating summons, that is, that this suit filed by claimant against the defendants is statute barred; that this is because all the defendants are public officers protected by the Public Officers Protection Act, Cap 41 law (sic) of the Federation 2004; that the 1^st defendant is a public officer protected by Section 2(a) of the Public Officers Protection Act is not in doubt; citing Unijos v. Dr. M.C. Ikegwuoha (supra). It will be idle to entirely repeat the said arguments here. The claimant did not reply on points of law to the defendants’ submissions.

The due date for the delivery of Judgment in this matter was on 20^th September, 2019. However, due to official engagements marking the retirement of the former President of the Court and the Inauguration of the incumbent Acting President of the Court, the parties and the court were in concurrence that judgment be rescheduled to 22^nd October, 2019. This was however, taken down to 18^th October, 2019 as judgment was ready for delivery. The parties were duly notified accordingly.

COURT’S DECISION

I looked through and considered all the processes filed in this suit and the submissions of counsel. The issues before the Court are twofold: 1. Whether the deceased former claimant substituted by the extant claimants, whose employment with the 1^st defendant was wrongfully terminated on 11^th April, 2006 by the defendants and having been exculpated of the false charges, and recalled by the defendants on 1^st May 2010, was entitled to his full salaries during the period his employment with 1^st defendant was wrongfully terminated by the defendants; and 2. Whether the former claimant who took appointment as a lecturer in Anambra State University, Uli in mitigation of damages/injuries being suffered during the period of time whose employment with 1^st defendant was wrongfully terminated (11^th April, 2006 to 31^st July,2010) was precluded by the provisions of Chapter 14: 3(a) of Nnamdi Azikiwe University Senior Staff Conditions of Service and Section 4: 030402 (q) of the Federal Government Public Service Rules from getting the difference between his salaries as a professor in the 1^st defendant and the lesser salaries he earned at Anambra State University during the aforesaid period of time. It is pertinent to address one or two preliminary issues before I delve into the substance of the suit.

First is the defendants/applicants’ reply on point of law which I indicated ealier was merely a rehash of the defendants/applicants’ argument in the final written address. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forget to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr. Augustine N. Mozie & ors v. Chike Mbamalu (2006) 12 SCM (Pt.1) 306; (2006) 27 NSCQR 425; Basinco Motors Limited v. Woermann Line & anor (2009) 13 NWLR (Pt 1157) 149; (2009) 8 SCM 103; Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors (2016) LPELR- 40220 (CA); UBA Plc. Ubokolo (2009) LPELR-8923 (CA) and Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC) I had accordingly only highlighted the issues that I think appropriately rank as replies on points of law.

The defendants/applicants raised a preliminary objection to the competence of this suit and to the competence and jurisdiction of the Court to hear and determine same on grounds that the claimant’s cause of action is statute barred by the provisions of Section 2(a) of the Public Officers Protection Act; that the claimant was supposed to bring this claim(s) within three months prescribed by the said law; that the claimant’s cause of action arose on the 10^th May 2010 when the claimant was recalled and required to resume work. In reaction the claimant argued that a look at the originating complaint in this suit will show that the claimant/respondent instituted this suit against the defendants/applicants on 1^st June, 2016 which is within 3 months from 23^rd March, 2016 after he was served with Exhibit M.

It is clear from the argument of the defendants/applicants that they seem to be claiming to be covered by the provisions of Public Officers Protection Law. In other words, if the provisions of the law is available to them, then the claimant/respondent’s action would be statute barred and unmaintainable.

Ordinarily, the purpose of the Public Officers Protection Law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months after the act, default, or neglect complained of. See Paul Yabugbe v. Commissioner of Police (1992) 4 SCNJ 116; (1992) 2 NWLR (Pt. 234) 152; (1992) LPELR-3505. The law is said to be designed to protect only the officer who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification. See Dr. Martins O. Offoboche v. Ogoja Local Government & anor (2001) 16 NWLR (Pt. 739) 458; (2001) 7 SC (pt.111) 107.

Section 2 (a) of the Public Officers Protection Law provides as follows:

“2. Where any action, prosecution or other proceedings commenced against a person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, neglect or default in the execution of any such law, duty or authority, the following provisions 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.”

In Fred Egbe v. Alhaji Abubakar Alhaji & ors (1990) NWLR (Pt. 128) 546; (1990) 3 SC (Pt. 1) 63; (1990) LPELR-1033, the Apex Court opined that where an act which had caused damage is done in the pursuance of any law or public duty, an injured party can recover damages or other relief whether the act was done in good faith or not.

Generally, the law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action that is brought after the prescribed period is said to be statute barred. See Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1. As I stated ealier in this matter, while the defendants/applicants maintain that the action is caught by Section 2 (a) of the Public Officers Protection Act, the claimant/respondent insists that the Act is inapplicable. Undoubtedly, a careful reading of the claimant’s originating summons will show clearly that it is on contract of service. The law is settled that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construzioni General Farsura Cagefar Spa & anor (1974) 1 AII NLR (Pt. 2) 463; Osun State Government v. Dalami Nigeria Ltd (2007) 9 NWLR (Pt. 1038) 66; (2007) 3 SC (Pt.1) 131; (2007) 6 SCM 145; (2007) LPELR-2817. In dealing with the issue of contract of service, the Apex Court in National Revenue Mobilization Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & ors (2019) 2 NWLR (Pt. 1656) 247 at 270-271 held thus:

In dealing with this issue, the Court below had found that a party’s right of action and access to relief cannot be extinguished on the basis of the Public Officers Protection Act as it does not apply to cases of contract. The Court below went further as follows:

“Assuming that the appellant had that statutory cover of the Public Officers Protection Act, it has to be restated at the risk of overflogging a legal principle that certain factors would debar that operation of the Act… Abuse of office will deprive a party who would otherwise have been entitled to the protection of Section 2 (a) of the Public Officers (Protection) Law, is use of power to achieve ends other than those for such power was granted, for example, for personal gain or to show undue favour for another or to wreak vengeance on an opponent.”

The Court below finally concluded that the appellants are not covered by the provisions of the Act to render the action statute barred.

The deceased former claimant in the originating summons in this suit who was a staff of 1^st defendant was accused of illegal operation of outreach programmes of the 1^st defendant; he was suspended and his appointment subsequently terminated. The Code of Conduct Tribunal that tried him found him not guilty and an order of acquittal entered in his favour; he was thereafter reinstated at the 1^st defendant. The matters in issue here have to do with his contract of service. I so find and hold. In sum, I have no slightest difficulty in holding that the claimant/respondent is not covered/inhibited by the provisions of the Public Officers Protection Act as to render his action statute barred. I so hold.

To the claimant it is settled law that when an employee is wrongfully dismissed or when his employment is wrongfully terminated, the measure of damages to be awarded by the Court is restitutio in interegnum; that this principle is applicable to both private employment contract and employment with statutory flavour. That in the case of employment with statutory flavour as in the instant case, the position of the law is that the wrongfully dismissed employee will be reinstated, and upon being reinstated, he shall be paid all the salaries and entitlements which he would have received if not for the wrongful termination of his employment. See Barth Ozoana v. Public Service Commission (supra). That the defendants by Exhibits F, J and M; and having paid the claimant the balance of his salaries for the ten months he was placed under suspension with half salary and also paid his salary for the first two months of period his employment was terminated when he was not employed at all, have conceded that the claimant is entitled to his full salary as a professor in the 1^st defendant between 11^th April, 2010 when his employment was wrongfully terminated and 1^st May, 2010 when he was reinstated. The claimant in consequence urged the Court to resolve the first question raised in this originating summons in the affirmative.

I have examined Exhibit D, the judgment of the Code of Conduct Tribunal, Exhibits F, J and M, all letters of recall to duty. I have also held that this matter having to do with contract of service, is not caught up by the Public Officers Protection Law. However, it bears noting that the Code of Conduct Tribunal only gave its order in its Judgment (Exhibit Q) that each of the three accused persons is found not guilty and an order of acquittal accordingly entered in favour of each. The law is that if an employment Tribunal or court decides that the claimant who approached it has been unfairly dismissed, it can order:

(a) Reinstatement ^__the claimant returns to his job, with arrears of pay, etc from a date specified by the Tribunal;

(b) Re-engagement^__the claimant must be engaged in employment comparable to that from which he was dismissed, or other suitable employment, or

c)Financial compensation.

The law requires the tribunal to consider the remedies available in the above order. See Pirelli General Cable Works Ltd v. Murray (1979) 1. R.L.R. 190. By Exhibits F, J, and M, defendants in this suit have already taken administrative steps to recall the claimant to the 1^st defendant with effect from 1^st May 2010. The argument of the 1^st defendant is that since the claimant was working in another public institution during the period of claimant’s termination of appointment it will be against public policy for 1^st defendant to make up for the difference between claimant’s earnings at 1^st defendant University and the other public institution; that the payment of salary for one automatically estops the payment of salary from the other. Reliance was placed on Chapter 14:3(a) of 1^st defendant Senior Staff Conditions of Service and section 4: 030402(q) of the Federal Government Public Service Rules. As such, claimant’s request for payment of the difference in salary could not be approved.

Order 3 Rule 3 of NICN (Civil Procedure) Rules, 2017 provides that:

Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria.

Originating summons will be ideal where there is a written instrument or document, and the question for the determination of the Court is what construction may be placed on the entire instrument or document, or any part of it. In 1907, Neville, J., clearly stated the principle in the English case of Re King, Mellor v. South Australia Land Mortgage and Agency (1907) 1 Ch.72 thus:

“In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable for, it is to be noted that originating summons is merely a method of procedure and not one that is meant to enlarge the jurisdiction of Court.”

It is my considered view that the procedure of originating summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who, without the need for pleadings, merely want, for example, a directive of the court on the point of law. Where, for instance, issues of mitigation of damages/injuries, rules regulating establishments, quantum of salaries and how arrived at, limitation laws, nature of reliefs sought and such discordant narratives are vagaries that challenged the sustainability of the process, it becomes a contentious issue/topic/subject. In the circumstance, I hold that this action is not one which ought to be commenced by originating summons. This suit is accordingly struck out.