UNIVERSITY OF CALABAR v. IGNATIUS P. UMOH
(2010)LCN/3603(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/C/87/2008
RATIO
CONTRACT: WHETHER THE PUBLIC OFFICERS PROTECTION ACT APPLY IN CONTRACT-RELATED MATTERS
It has been held by high judicial authorities in the land that the Public Officers Protection Act does not apply in the case of contract-related matters or in actions grounding in contract. This one sounds in contract as the basis of the relationship between the parties is contract of employment which terms are statutory spelt out.” PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
UNIVERSITY OF CALABAR – Appellant(s)
AND
IGNATIUS P. UMOH – Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Federal High Court, Calabar Judicial Division, presided over by Hon. Justice A. O. Ajakaye. The said judgment was delivered on 14th November, 2002. Therein the Plaintiff/Respondent, a non-academic staff of the Defendant/Appellant was alleged to have committed gross-misconduct in that he collected money from members of the public with a promise to influence their admission contrary to the Rules and Relations which governed his employment. As a result, by a letter dated 2nd September, 2002, the plaintiff/Respondent was dismissed from the service of the Defendant for gross misconduct.
On the 30th day of July, 2004, the plaintiff/Respondent took out a writ of summons challenging his dismissal. At the end of the trial the trial Judge gave judgment in favour of the plaintiff, nullifying his dismissal and ordering his reinstatement and payment of all his salaries and allowances.
Dissatisfied with the said judgment the Defendant/Appellant filed this appeal on 13th February, 2008 on four grounds of appeal. From the said grounds of appeal, the appellant has formulated two issues for determination. The issues read as follows:-
1. Whether the learned trial Judge was right to hold that the provisions of the public Officers Protection Act had no application in this case. From grounds 1, 2 and 3 of the Grounds of Appeal).
2. Whether the learned trial Judge was right to hold that the Appellant acted ultravires in dismissing the plaintiff from their employment (From Ground 4 of the Grounds of Appeal).
On the other hand, the respondent has also formulated the following two issues for determination:-
1. Whether the Public Officers Protection Act is applicable to the dismissal of the Respondent from his employment with the appellant which act borders on contractual relationship.
2. Whether the appellant was justified in the circumstance in dismissing the Respondent from his employment and if not, was the Respondent not entitled to judgment.
The above is clear from the briefs of argument filed by both the appellant and the Respondent.
It is clear that the issues formulated in the appellant brief of argument are the same as the issues formulated in the Respondent’s brief of argument though differently worded. I will consider the issues as formulated in the appellant brief of argument.
The first issue as formulated in the appellant’s brief of argument is whether the learned trial judge was right to hold that the provisions of the Public Officers Protection Act had no application in this case.
The above is jurisdictional issue which the Defendant/Applicant raised even at the trial. It involves jurisdictional issue bordering on the competence of the action which was instituted later than three months after the cause of action arose.
The appellant counsel has referred this court to the holding of the trial Court which is as follows:-
“I must stop here to say that the provision of the law is that the provisions of the Public Protection Act is applicable to both natural persons and Institutionalized persons. A long line of authorities attest to this, one which is the case of Ibrahim Vs. Judicial Service Committee of Kaduna State (1998) 14 NWLR (Pt 584)1”
He has argued that the trial Judge, having held as above, should properly have concluded that the action was statute-barred in that the provision of the Public Officers Protection Act were applicable and enforceable against the Plaintiff/Respondent, rendering the suit incompetent.
The appellant counsel emphasized that the learned trial Judge on his own raised and considered whether the Public Officers Protection Act was applicable in cases of breach of contract. He has added that this issue was never raised by any of the parties and that even when the learned trial Judge raised it suo motu, the law enjoins him to have invited the parties to address him on that issue before giving decision on it. That the trial Judge failed to do this thereby denying the parties the right to address the court on that issue. He has concluded that in consequence the Defendant/Appellant’s right to fair hearing was breached and this occasioned a miscarriage of justice to the Defendant/Appellant against whom that issue was raised.
The appellant counsel has added that the learned trial Judge was in error when he went outside the issue in contention to hold as follows:-
“Apart from that, it seems to me that statute does not have application in this case having application in this case having regard to the nature of the cause of action and the situation in the case. The basic relationship between the parties is no doubt contractual. The question is that, does the Act contemplate a situation like this. What is complained of in this case is not that of wrongful act done by a Public Officer, it is a case of contractual breach which is actionable at the instance of any of the parties.
It has been held by high judicial authorities in the land that the Public Officers Protection Act does not apply in the case of contract-related matters or in actions grounding in contract. This one sounds in contract as the basis of the relationship between the parties is contract of employment which terms are statutory spelt out.”
The learned appellant counsel has maintained that so many issues were subsumed in that part of the judgment. One is the issue of the nature of the cause of action. Then the issue of the relationship between the parties. There is the issue of the wrongful act done by a public officer. Also, the issue of contract related matters or actions sounding in contract. The appellant counsel averred that the trial Judge raised, on his own, and considered all the issues or sub-issues without calling on the parties to address on them. That the law does not permit this. He has relied on the statement of the Supreme Court as per ONNOGHEN, JSC in UKPONG VS. COMM. FOR FINANCE (2006) 19 NWLR (PT 1013) 187 at 221 as follows:-
“Though a question of law and jurisdiction can be raised at any time in the proceedings, it is not a free for all exercise. Similarly, although the Court can raise a matter of law, constitution and jurisdiction at any time, the parties must be given the opportunity of addressing it on the matter so as not to breach the rules of fair hearing…”
The appellant counsel has added that even if the law were to permit a Judge to set the examination options, and answer them at the same time, the answer given to those options were erroneous in law, considering the facts and circumstances of this case.
The appellant counsel had averred that in the first place it was wrong for the learned trial judge to classify the nature of the cause of action as contractual. He has maintained that the relationship was more of a master-servant relationship involving the exercise of public duties in a public institution. That it was equally wrong for the trial Judge to hold that “what is complained of in the case is not that of a wrongful act done by a public officer.” That in actual fact, as borne of the facts, documents and evidence, the plaintiff complained of a wrongful act (that is the trial of criminal matter) done by a public officer (that is the Univesity of Calabar). He has added that the trial Judge also fell into a grave error to hold that “it is a case of a contractual breach” when there was no real breach of contract as the trial Judge himself later found as follows:-
“Section 16 of that Act sets out the procedure for the removal and discipline of Academic, Administrative and Professional staff, the cadre to which the plaintiff belongs in to which the plaintiff belong. I have carefully looked at the provisions vis-a -vis the processes followed in the removal of the plaintiff and I am satisfied that there is, at least, substantial compliance.”
The appellant counsel has maintained that if these issues as raised and considered suo motu by the learned trial Judge were allowed to stand, they will be such to have revolved round the principal issue of an alleged “wrongful act done by a public officer which invariably falls within, and is caught by the provisions of the Public Officers Protection Act. As to applicability of limitation of actions to actions in breach of contract the appellant counsel has maintained that the facts and circumstances of each case determine its applicability, relying on N.P.A Vs. LOCUS PLASTIC (2005) 24 NSCQR 566; 587-588.
The appellant counsel has reiterated that had the learned trial Judge exercised caution and given the Defendant/Appellant opportunity to address him on these issues, which he raised suo motu, his view on these issues will certainly have been different. That as the trial Judge did not invite the Defendant/Appellant to address on these issues he fell into grave error in law occasioning a miscarriage of justice.
Right to fair hearing is fundamental as its breach affects the whole trial. The learned trial Judge has not given the appellant opportunity to address the Court. This issue is therefore resolved in favour of the appellant.
The second issue is whether the learned trial Judge was right to hold that the appellant acted ultra vises in dismissing the plaintiff from their employment. It is to be noted that the trial court found as a fact that there was substantial compliance with the relevant provision of the University of Calabar Act, CAP 115 Law of the Federation of Nigeria, Vol. 15 2004. The University of Calabar Act empowers the Universities to exercise disciplinary control and measure over and against dishonest employees. However as the first issue which touches on question of fair hearing has already been determined in favour of the appellant there is no need to dwell much on this issue. The appeal is allowed on issue one. The proceedings and judgment of the trial court are hereby set aside. An order of retrial by another Judge is hereby given.
KUMAI B. AKAAHS. J.C.A: I read in draft the judgment of my learned brother, Mikailu, JCA. I agree with his conclusion that there was lack of fair hearing as the parties were not called upon to address the court on the issue it raised suo motu. The appeal has merit and it is hereby allowed. I endorse the order of re-hearing of the matter before another Judge.
NWALI SYLVESTER NGWUTA J.C.A: I Read in draft the lead Judgment delivered by my Learned Brother Mika’ilu JCA and I agree that the Appeal has merit.
A Court may raise an issue suo motu but it should not resolve same without affording the parties the opportunity to address it on the issue so raised.
To do so constitutes a denial of fair hearing.
I also allow the appeal and abide by orders made in the lead Judgment.
Appearances
OKON N. EFUT, ESQFor Appellant
AND
CHIEF G. A. UDOUSORO ESQ.For Respondent
