NATIONAL EXAMINATION COUNCIL (NECO) v. SUNDAY OJO TOKODE
(2010)LCN/3622(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of March, 2010
CA/PH/376/2007
RATIO
INTERPRETATION: MEANING OF NOTWITHSTANDING WHEN USED IN A STATUTE
Therefore the words “Notwithstanding” means when used in a statute is construed as a term of exclusion,
In NIGERIA DEPOSIT INSURANCE CORPORATION V. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (pt. 880) 107 at 182-183 the Supreme Court. (Per UWAIFO JSC) stated as follows:
“when the term “notwithstanding” in a section of a statute is used, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section, may fulfill itself…..
See also: AG FEDERATION v. ABUBAKAR (2007) ALL FWLR (Pt. 389) 1264 at 1298; TOTAL (NIGERIA) PLC v. MAKOH (2002) 9 NWLR (Pt.773) 492; KOTOYE V. SARAKI (1994) 7 NWLR (Pt. 357) 414 at 478. PER SULAIMAN GALADIMA, J.C.A.
INTERPRETATION: WHETHER EFFECT SHOULD BE GIVEN TO UNAMBIGUOUS AND CLEAR WORDS
It is both elementary and also fundamental principle for the interpretation of statutes that where the words are clear and not ambiguous, effect should be given to them: See UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 SCNJ (Pt. 11) 442-443, AFRICAN NEWSPAPER V. NIGERIA (1985) 2 NWLR (Pt.6) 137. PER SULAIMAN GALADIMA, J.C.A.
INTERPRETATION: WHAT IS THE POSITION OF LAW WHERE A LATTER PROVISION IS INCONSISTENT WITH AN EARLIER ONE
The law is that where a latter provision is inconsistent with an earlier provision of a statute the legal presumption is that the latter has modified the former See N.P.A. SUPERNUATION FUND v. FASEL SERVICES LTD (2002)FWLR (Pt. 97) 719 at 736. PER SULAIMAN GALADIMA, J.C.A.
ACTION: WHAT DETERMINES WHEN THE CAUSE OF ACTION ACCRUED
It is the writ of summons and the statement of claim that is resorted to, in determining when the cause of action accrued: see SDC CEMENTATION NIG) LTD V. NAGEL CO. LTD (2003) FWLR (Pt. 156) 861 at pp 865 and 880; AKINBI V. THE MILITARY GOVERNOR ONDO STATE 3 NWLR (Pt.140) 525 at 531-532 and WOHEREM V. EMERUWA (2004) 7 SCNJ 119 at 133-134. EDBE V. ADEFARASH (1987) 1 NWLR (Pt.47) 1 at 4 IN FADARE V. A.G OYO STATE (1982)4 SC 1 at 24.25 the Supreme Court held as follow:
“Time begins to run when the cause of action arises…..
Time, therefore, beings to run when there is in existence a person who can sue one and another who can be sued, and when all the facts have happened which are material to be proved to entitle the Plaintiff to succeed.”
All the facts must have happened proved which are materials to be proved to entitle the plaintiff to succeed before the cause of action will accrue and time will begin to run for the purposes of accrue of the cause of action. PER SULAIMAN GALADIMA, J.C.A.
JUSTICES
SULEIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
NATIONAL EXAMINATION COUNCIL (NECO) Appellant(s)
AND
SUNDAY OJO TOKODE Respondent(s)
SULAIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment): The Plaintiff, now the Respondent herein, commenced the suit vide a writ of summons filed on 15/2/2006, against the Appellant who was the Defendant, an Examination body established by the Federal Government of Nigeria vide of NECO Act of 2002.
The Defendant is a body corporate having statutory powers and function over the general control of the conduct of Internal and External Senior Secondary School Certificate and West African Certificate Examinations. It has its Port Harcourt office along Creek Road Port Harcourt, Nigeria.
The plaintiff was admitted into Government secondary School Onne in Eleme Local Government Area of Rivers State in the year 1998 as a Senior Secondary 1 (SS1) student to read for his Secondary Certificate.
During his final year in 2000 the Plaintiff registered for the senior Secondary School Exanimation (otherwise known as NECO Examination) for Mathematics, English Language, physics, chemistry, Biology, Economics, Agricultural Science, Christian Religious Studies and Government. The plaintiff sat for the Examinations, for which result in the normal course of event ought to be released within one year, not later than the month of May, 2001. The result was however released sometime in that year, whereby the results for the centre where the plaintiff sat for the said NECO Examination were sent by the Defendant and published at Government Secondary School Onne. Mistakes were discovered in the results. The result for the subjects of physics and chemistry which the plaintiff sat for was not released, while the result for Government, which the plaintiff sat, was released with score as ‘A1’. The subject of Geography, which the plaintiff did not register for, was also included in the plaintiff’s result as one of the subject’s which the plaintiff sat for. The plaintiff was embarrassed and angry. He made all efforts humanly possible to see to the correction of omission, mistakes and errors, yet all his efforts proved abortive. He felt his result in physics and Chemistry was arbitrarily withheld. Felt aggrieved the plaintiff filed this claiming for inter alia, a mandatory order compelling Defendant to release his result in physics the May/June NECO and chemistry of Examination conducted by the Defendant. He also claimed N10 Million damages for losses and sufferings.
The Defendant by a Notice of preliminary objection dated 15/8/2006 and filed on 29/8/2006, urged the trial court to strike out the suit on the grounds that the suit is statute-barred, not having been commenced within THREE MONTHS from the case of action. In a considered Ruling delivered on 20/11/2006 the Learned Trial Judge dismissed the Defendant’s preliminary objection.
Dissatisfied with this Ruling the Defendant lodged this Notice of appeal on 20/11/2006 on one ground as set out on pages 50-51 of the Record of Appeal.
In compliance with the Rules of this Court, Learned counsel for the parties filed and exchanged their respective briefs of argument.
This appeal came up for hearing on 13/1/2010. Let it be noted that on 20/11/2008 this appeal was adjourned to 1/4/2009; the court did not sit and it was further adjourned to 15/6/2009 still, the court did not sit and the matter was adjourned to 13/1/2010.
Counsels for the parties were in court. Learned Counsel for the Appellant was clearly on Notice of the appeal. No reason has been proffered for his absence. Appellant’s brief of argument has been duly filed and by virtue of Order 17 Rules 9 (4) of the Court of Appeal Rules 2007, the argument therein presented in the Appellant brief is taken and deemed argued. The Appellant’s brief of argument settled by Ibrahim Isiyaku SAN, was dated 2nd day of November and filed on 30th day of November, 2007. The Appellant’s Reply Brief dated 28/12/2007 was filed on 14/1/2008.
Sole issue raised by the Appellant for the determination of this appeal is as follows:
“3.01. whether the suit is caught by the provision of section 2 (a) of the public officers protection Act cap. 379 Laws of the Federation of Nigeria 1990 as to oust the Jurisdiction of the Trial Court.”
However, on the said 13/1/2010 when this appeal was heard, Learned Counsel for the Respondent’s H.D.D. UWOM Esq. leading S.O. ELUKU Esq. identified the Respondents brief of argument he settled. It was dated 24/12/2007 and filed on that date. Learned counsel adopted the said brief in which single issue raised therein was substantially similar with that of the Appellant.
It is as follows:
“Whether the plaintiff/Respondent’s action/suit (No.FHC/PH/46/2006) in the Federal High Court Port Harcourt is affected by the Limitation period contained in Section 2 (a) of the Public Officers protection Act, Cap. 397 Laws of the Federation 1990”.
The sole issue presented by the parties for the determination of the appeal is similar. The crux of the matter is the interpretation of S. 2(a) of the Public officer protection Act, Cap 379 Laws of the Federation 1990 and Section 19 of the National Examinations Council (NECO) Establishment Act, 2002.
It is submitted by the Appellant that what section 19 (1) seeks to do is that: in relation only to “an officer or employee of the Council” the Public officer protection Act (POPA) shall apply subject to the provisions of the National Examinations Council Act (NECOA). It is further submitted that in relation to a member of the Board, the Registrar or the Council the provisions of POPA are not subjected to the Provisions of the NECOA. That if the lawmakers had intended to limit POPA only to “an officer or employee of the council, they would have inserted the world “only” after the word “shall” or “relation” or “Council”. It is contended that as section 19 (1) is presently couched only its protection of “an officer or employee of the Council shall be subject to the provisions of the NECO Act of 2002 (NECOA).
The Respondent’s response to the Appellant’s argument is that in respect of section 19 of the NECO Act 2002, it adopts the limitation period in the Public Officers Protection Act, but limits its application to Officers, Employees Registrar of the Council as well as members of the Board of Council only.
The Appellant’s argument under paragraphs 4.02-4.06 of its brief of argument is to effect that the Appellant is a “person” because under section 18 (1) of the Interpretation Act cap.192 Laws of the Federation 1990 “person” includes an artificial person.
Relying on the Supreme Court case of IBRAHIM v. J.S.C. (1998) 14 NWLR (Pt. 584) 1 at 36, it is submitted that though the case is related to the Public Officers Protection Law of Northern Nigeria applicable to Kaduna State both Section 2 (a) of that Law and Section 2 (a) of the Act and Section 3 of the Interpretation Law and Section 18 of the Interpretation Act are the same. That the act, neglect, or default complained of in the Respondent’s suit was done in pursuance, execution of a public duty and as such the suit is caught by section 2 (a) of the Public Officers Protection Act, Cap. 379 LFN, 1990 herein after, to be referred as “POPA” Act (having been filed commenced outside 3 MONTHS of the Act, neglect or default complained of.
Since the Appellant was set up by the National Examinations Council (NECO) (Establishment) Act 2002, its conduct, activities and operations are governed/regulated by that Act. Herein after to be referred to as “NECO Act.”
The provisions of both the said Section 2 (a) POPA Section 19 of NECO Act and seek to oust the Court jurisdiction they must be construed strictly. See UDOH v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD. (1973) 7 SCNJ (pt. 11) 436 at 445.
Section 19 of the NECO Act, 2002 which deals with legal proceedings provides as follows:-
“(1). Subject to the provisions of provisions of the public Officers Act, relation to any suit instituted against an Officer or Employee of the Council.
(2) Notwithstanding anything contained in any other enactment, no suit against a member of the Board or the Registrar or any other officer or Employee of the Council done in pursuance or execution of this Act or any enactment or law, or of any public duty authority in respect of any alleged neglect or default in the execution of this Act or any other enactment or law, duty or authority, shall lie or instituted in any court unless it is commenced-
(a) within three months next after the act, neglect or default complained of or
(b) in the case of a continuation of damage or injury, within six months next after the ceasing thereof.
(3) No Suit shall be commenced against a member of the Board or the Registrar or any other officer or Employee of the Council before the expiration of a period of one month after written notice of the intention to commence the suit shall have been served on the council by the intending Plaintiff or his agent”. (Underlining mine for emphasis).
My understanding of this section is that it restricts the application of the POPA to Officers and Employees of the Council only. Not only that, it goes ahead to create its own limitation period of THREE MONTHS, which is applicable to members of Board, Registrar, officers and Employees of the Council only.
Furthermore, I agree with the Learned Counsel for the Respondent that the Section streamlines or limits the extent to which POPA can apply to the council (the Appellant herein) and it’s Officers which are creations of the said NECO Act. That Section, adopts the limitation period in the POPA, but limits it application to officers, Employees, and Registrar of the Council as well as members of the Board of council only. The Appellant is not mentioned as one of those to be affected by the operation of the POPA, nor the limitation period provided under section 19 (2) of the NECO Act, 2002. The exclusion of the Appellant in Section 19 (1) and (2) by the draftsmen of the NECO Act 2002 was clear and intentional. It was intended to exclude it from the benefit of the limitation period.
Section 19 (2) of the NECO Act supports or buttresses that intention, when it begins with the words- “Not withstanding anything contained in any other enactment”. This show clear intention of the Legislation to exclude the general provisions of the POPA from the officers of the Appellant which were created or established by the NECO Act 2002. This shows an intention to limit the application of the limitation period to the Officers, Employees specifically named in section 19 of the NECO Act 2002.
Therefore the words “Notwithstanding” means when used in a statute is construed as a term of exclusion,
In NIGERIA DEPOSIT INSURANCE CORPORATION V. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (pt. 880) 107 at 182-183 the Supreme Court. (Per UWAIFO JSC) stated as follows:
“when the term “notwithstanding” in a section of a statute is used, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section, may fulfill itself…..
See also: AG FEDERATION v. ABUBAKAR (2007) ALL FWLR (Pt. 389) 1264 at 1298; TOTAL (NIGERIA) PLC v. MAKOH (2002) 9 NWLR (Pt.773) 492; KOTOYE V. SARAKI (1994) 7 NWLR (Pt. 357) 414 at 478.
It is both elementary and also fundamental principle for the interpretation of statutes that where the words are clear and not ambiguous, effect should be given to them: See UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 SCNJ (Pt. 11) 442-443, AFRICAN NEWSPAPER V. NIGERIA (1985) 2 NWLR (Pt.6) 137. In the instance case if the lawmakers had intended that the limitation period should apply to the council (the Appellant) they world have specifically mentioned that in section 19 (1) and (2) of the NECO Act (supra).
I agree with the Respondent’s counsel, that this is in contradistinction with sections 19 (3) and 20 of the NECO Act, where the “council” is specifically mentioned in relation to receipt of pre-action notice and service of documents respectively.
In section 12 (1) of the Nigerian National petroleum corporation Act, cap. 320 LFN, 1990 a limitation period of 12 months is stipulated and in respect of suits/actions. The “Corporation” is specifically named or mentioned therein as parliament intended that the corporation should benefit from the imitation period. It will be absurd to think that the provision in the NNPC Act respecting a limitation of 12 months should be jettisoned while the general provision in section 2 (a) of the POPA for a 3 MONTH-LIMITATION period should apply to the corporation. The specific provision in the NNPC Act excludes or prevails over the general provision in the POPA. The NNPC Act was passed specifically to govern or regulate the affairs of the corporation and the offices and bodies established by the Act. For it is well settled principle of construction of statutes that where a section names specific thing among many other alternatives, the intention is that those not named are not intended to be included.
Hence-the Latin maxirn “Expressio unius est exclusion alterius.”
See A.G. BENDEL STATE v. AIDEYAN (1989) 4 NWLR (Pt. 117) 646. See also OGBUINYINYA v. OKUDO (1979) 6-9 SC 32; MILITARY GOV. ONDO STATE V. ADEWUNMI (1988) 3 NWLR (Pt. 82) 280. The express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue:
In another example, in the case of BAKARI-V. NRC (20007) ALL FWLR (Pt. 391) 1579 at 1616 Section 83 (1) of the Nigerian Railway Corporation Act cap. 323 LFN 1990 provides a limitation period of 12 months in respect of suits against the Corporation (NRC) or any Servant of the Corporation. Since it is the intention of the legislators that the Corporation should benefit from the limitation period, it is specifically named or mentioned. Both the Appeal and the Supreme Courts in this case, did not apply the general provision in the POPA (which provides for a 3 MONTH limitation period) to the NRC but the specific provision in section 33 (1) of the NRC Act Cap 323 LFN 1990 respecting a 12-month limitation period is applied to the (NRC).
The incongruity and absurdity of the situation will result to abandon the provision in the NNRC Act specifically passed for its sake and try a general provision in the POPA. In the same vein, the NECO Act was passed specifically to control and regulate the affairs of the Appellant (NECO) and its offices and officers. The general provision in the Public Officers Protection, Act, should give way to the NECO Act in respect of matters concerning the Council and its Officials. I agree with the Learned Counsel for the Respondent that the provision in section 19 of the NECO Act 2002 being a provision in an Act that was specifically passed for that body, it prevails over the general provision in section 2 (a) of the POPA, because the law is that a specific provision in a statute prevails over a general provision in a statute.
See AKPAN V. THE STATE (1936) 5 SC 186 at 213-214 also MARTIN SCHRODER V. MAJOR & ALL CO. NIG.) LTD (2002) FWLR (Pt.128) 1304. A community reading of section 19 of the NECO Act, 2002 suggests a manifest intention on the part of the legislators to exclude the Appellant from the benefit or application of the 3-month limitation period in POPA and that in section 19 (2) of the NEC. Act 2002 which specifically named member of Board, Registrar, Officer, and Employee of the council but did not name the Council (Appellant). The effect is that the council is excluded and is not intended to benefit from the limitation period in section 2 (a) of the POPA and section 19 (2) of the NECO Act, 2002.
I have said before, that the POPA provides for the protection of Public Officers, generally. It is earlier in time than the NECO Act, 2002 which limits the protection period to the Registrar, officer, Employee and member of the board of the council only. The latter provision is section 19 of the NECO Act 2002 has modified the earlier general provision in section 2 (a) of the POPA.
The law is that where a latter provision is inconsistent with an earlier provision of a statute the legal presumption is that the latter has modified the former See N.P.A. SUPERNUATION FUND v. FASEL SERVICES LTD (2002)FWLR (Pt. 97) 719 at 736. By virtue of section 19 of the NECO Act, the words “subject to” in that Act subordinates section 2 of the POPA to the said NECO Act, 2002. The words “subject to” when used subordinate, in statute means subordinate, subservient or inferior to. See NDIC V. OKEM ENTERPRISES LTD (supra) at page 1233. See further TSOKWA MARKETING CO. V. BON LTD (2002) 1 NWLR (Pt.777) 163 at 193.
As to when the cause of action in this case accrued, with due respect to the Appellant, I disagree that the Respondent’s action was brought “5 years or 60 days” since after the refusal and/or failure of the Appellant to release the Respondent’s result. It is the writ of summons and the statement of claim that is resorted to, in determining when the cause of action accrued: see SDC CEMENTATION NIG) LTD V. NAGEL CO. LTD (2003) FWLR (Pt. 156) 861 at pp 865 and 880; AKINBI V. THE MILITARY GOVERNOR ONDO STATE 3 NWLR (Pt.140) 525 at 531-532 and WOHEREM V. EMERUWA (2004) 7 SCNJ 119 at 133-134. EDBE V. ADEFARASH (1987) 1 NWLR (Pt.47) 1 at 4 IN FADARE V. A.G OYO STATE (1982)4 SC 1 at 24.25 the Supreme Court held as follow:
“Time begins to run when the cause of action arises…..
Time, therefore, beings to run when there is in existence a person who can sue one and another who can be sued, and when all the facts have happened which are material to be proved to entitle the Plaintiff to succeed.”
All the facts must have happened proved which are materials to be proved to entitle the plaintiff to succeed before the cause of action will accrue and time will begin to run for the purposes of accrue of the cause of action.
The case against the Appellant is that it made a mistake or error in the release of examination result. The Respondent complained and wrote to the Appellant insisting on the correction and was given assurance by the Appellant that the correction would be effected. See paragraph 19 and 18 of the Respondent’s statement of claim. The Respondent waited in vain for the Appellant’s response. The Respondent averred that up till the moment he filed the suit in the Federal High Court there was no official communication from the Appellant to the Respondent agreeing to effect the correction and release the said result. The letter which the Appellant relied on to fix the date of accrual of the cause of action as at 22nd March, 2001, was addressed to the principal of the Respondent’s school. The Appellant has not established what date the Respondent got to know of what letter. See ADUBEKO V. FOWLER (1993) 9 SCNJ (Pt. 2) 185 at 201.
Since the Respondent was waiting for the Appellant’s response to demand for correction the cause of action did not accrued yet. See FADARE V. AG OYO SATAE (supra). I am of the opinion that it was when the Respondent knew of the Appellant’s refusal to effect the correction and when his university threatened to rusticate him that the cause of action accrued. I agree with the Learned Counsel for Respondent that since the issue of the date when the Appellant’s decline, to effect the correction was communicated to the Respondent and the date when the non-release of the result in Physics and Chemistry cannot be resolved on the face of the statement of claim it calls for evidence during; the trial so as to resolve same.
I do not agree with the Appellant’s argument that the cause of action arose and the suit became statute-barred before coming into force of the NECO Act 2002 and as such it is not the NECO Act that is applicable. That argument is inconsistent with the very basis for the Appellant’s appeal on the preliminary objection that was dismissed by the court below. This flaw in Appellant’s argument is further noticed under paragraph 4.03 of the Appellant’s brief of argument. Herein, the Appellant argued that under section 1 (1) and (2) of the NECO Act 2002, the Appellant is a body corporate and is consequently an artificial person under Section 18 (1) of the Interpretation Act cap 192 LFN 1990,which is protected by the POPA. The Respondent has rightly argued that if the NECO Act no longer applies to this case, as the Appellant contended, the cause of action had accrued before NECO Act 2002 came into force, then, there is no basis upon which the Appellant can claim that it is a body corporate that is entitled to the protection of the POPA. This is because the Appellant desire its very existence or corporate existence from the NECO Act, 2002 which it now turns round to exclude. Does this not amount to blowing hot and cold? The law frowns at approbating and reprobating.
In the same vein, a point has been made by the Respondent that the National Board for Educational Measurement established under the National Board of Educational Measurement Act No. 69 of 1993 which the Appellant relies on, does not apply to the Appellant and the case in hand. From paragraphs 2 and 24 of the Respondent’s statement of claim, the examination that gave rise to the present case is Senior School Examination (SSE). The Board set up under Act No. 69 of 1993 had the responsibility over the conduct of Junior School certificate of Education and Allied Institutions. (See Section 3 of Act No. 69 of 1993)
In any case, the Appellant, not being a public officer but a statutory establishment, or institution, is not entitled to the benefit of POPA. Let it be noted that the Act was passed to protect public officers as individuals and not institution, officers or public Authority. Thus the Supreme Court in MOMOH OKEWALE (1977) 6 SC 81 at 88-89, held as follows:
“There can be no doubt that there had been in tendency the past a confuse the ambit of operation of the provisions of section 2 of the public officers protections Act, cap. 168, with the relevant provisions of Section 1 of the English Public Authorities protection Act, 1893, (56 and 57 vict. C.61), because the provisions of Section 2 of the former Act were lifted almost wholesale from the provisions of section 1 of the English public Authorities protection Act, 1993. It seemed to have been over-looked that there is a vast difference between the titles of the two Acts. The Nigeria Act is entitled: “public officer’s protection Act”. The aims and objects and the purposes of the two Acts are also different. The intention of the British parliament in enacting the English Act was; to protect public Authorities engaged in the discharge of responsibilities imposed upon them by Parliament. The Nigerian law was aimed at protecting public officers as individuals in the discharge of public duties.”
See further the case of NWANKERE v. ADEWUNMI (1967) NWLR 45 at 49.
I have also read the case of IBRAHIM v. JSC (1998) 14 NWLR (Pt. 584) 1 relied by the Appellant. The case of MOMOH v. OKEWALE (supra) is based on the rear import of the Act. The reliance in the latter decision on the meaning of “person” in section 3 of the interpretation law to include artificial person like Appellant, is not the point: The Act provides for “Public Officers” not “Public Persons”. I agree with the Respondent that an artificial person does not by virtue of the Interpretation Act become an officer or Public officer. The public officer’s protection Act (POPA) does not apply to the Appellant who is not a “public Officer”.
For all I have said, having resolved the sole issue in favour of the Respondent, the appeal is dismissed for lacking in merit. The decision of the Lower court dismissing the Appellant’s preliminary objection to strikeout the Respondent suit is affirmed.
This suit is hereby remitted to the Learned Chief Judge of the Federal High court, for re-assignment to another Judge of that court for expeditious hearing and determination. In the circumstance of this case, I make no order as to costs.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading of in advance the Lead judgment of my Learned brother, Galadima JCA (OFR) just delivered. I am in complete agreement with the reasoning and conclusions arrived thereat by his Lordship.
A careful reading of section 19 of the NECO, Act, 2002 reveals the fact that the Section streamlines/limits the extent to which the public officers protection Act can apply to the Council (defendant/Appellant) and its organs/officers which are creations of the said NECO Act, 2002. That section, needless to say adopts the limitation period in the Public Officers Protection Act but limits its application to officers, employee’s registrar of the Council as well as members of the board of Council only.
It is to be observed that in section 19(1) and (2) of the NECO Act, 2002, the council is not named/mentioned as one of those to be affected by the operation of the public officer’s protection Act nor the limitation period provided under section 19(2) of the NECO Act, 2002. The not non-mention /inclusion of the council (defendant/Appellant in the said section 19(1) and (2) by the draftsmen of the Law (NECO Act, 2002) in my view was intentional. It was intended to exclude it from the benefit of the limitation period.
For these reasons and the more detailed ones ably presented in the lead judgment I too dismiss the appeal for lacking in merit and abide by all the consequential orders therein contained.
EJEMBI EKO, J.C.A.: the facts of this are well summarized in the lead judgment just delivered by my learned brother, SULEIMAN GALADIMA (OFR), JCA. I had the privilege of reading in draft the said judgment.
The only issue in this appeal is: whether the Appellant, National Examination council (NECO) belongs to the category or persons the provisions of section 2(a) of the Public officers (protection Act (PAPA) shield? The provisions are as follows:
NECO (ESTABLISHMENT) ACT, 2002
19. (1) Subject to the provisions of this Act, the provision of the public officer’s protection Act shall apply in relation to any suit instituted against any officer or employee of the council
(2)Notwithstanding anything contained in any other enactment, no suit against a member of the Board or the registrar or employee of the council done in pursuance or execution of this Act or any enactment or law or of any public duty or authority in respect of any alleged neglect or default in the execution of this Act or any other enactment or law, or authority, shall lie or be instituted in any unless it is commenced-
(a) within three months next after the act neglect or default complained of ,or
(b) in the case of a continuance of damage or in fury within six months next after the ceasing thereof.
(3) No suit shall be commenced against a member of the Board or the registrar or any officer or employee of the council before the expiration of a period of one month after written notice of the intention to commence the suit shall have been served on the council by the intending plaintiff or his agent.
PUBLIC OFFICERS PROTECTION ACT
2. 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 Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority the following provisions shall have effect-
(a) The action, prosecution or proceeding shall not lie or 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 in fury, within three months after the ceasing thereof.
Provided that if the action, prosecution or proccedings be at the instance of any person for cause arising while such person was convict within three months after the discharge of such person form prison.
Since the provisions of the above enactments seek to oust the jurisdiction of the court they must be construed strictly. See UDOH v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1973) 7 SCNJ (Pt.II) 436 at 445. from the opening phrase subject to in section 19 of the NECO (Establishment) Act it is obvious that the provisions of the public Officers Protection Act shall only apply if the provisions of NECO Act permit. See OKE V. OKE (1074) 1 ALL NLR 443 in which the Supreme Court was invited to interpret or construe the phrase, “subject to any customary relating thereto”, in section 3(1) of the Wills Law of Western Nigeria. Elias CJN, delivering the opinion of the court stated thus at p.450-
The introductory phrase “subject to any customary law relating thereto” necessarily makes the power given to the testator under the sub-section depend upon the particular customary law permitting it. In effect, the power of the testator to devise his real and personal estates by will is limited by the extent to which if any, its exercise is permissible under the relevant customary law.
Section 1(1) of NECO Act therefore clearly limits the operation of POPA IN its limitation provisions to only “any officer or employee of the council” of NECO and make the provisions of POPA dependant on NECO Act to the extent permissible by the said NECO Act, which is later in time to the POPA enacted in 1916 as an Ordinance. Since OKE v. OKE (supra) the Supreme Court in a number of decisions, has followed and adopted the construction placed on the phrase subject to by Elias CJN. The case include BRONIK MOTORS LTD V. WEMA BANK LTD (1983) 1 SCNLR 296; MANDARA V. A.G. OF FEDERATION (1984) 1 SCNLR 311; AFRICAN NEWSPAPER V. NIGERIA (1985)2 NWLR (Pt. 6) 137; SAVANNAH BANK NIGERIA LTD V. PANATLANTIC SHIPPING AND TRANSPORT etc (1987) 1 NWLR (Pt. 49) 212; TUKUR V. GOVERNMENT OF GONGOLA STATE (1987) 9 SC 1.
The NECO Act clearly intends that the council of NECO established pursuant to section 1 of the National Examination council (NECO) (Establishment) Act does not belong to the category of persons “protected” by the limitation provisions, either under NECO (Establishment) Act or the POPA. If the contrary was intended the Act would have so clearly state.
The settled principle of construction of statute is that where the provision names specific things out of the many, the intention is that those not mention are not intended to be included. In other words, those not mentioned are intended to be excluded. See MIL. GOVERNOR OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (Pt.82) 280. In Latin it is expressed as EXPRESSIO UNIS EST EXCLUSIO ALTERUS.
The category of persons protected by section 19 of NECO (Establishment) Act includes only the member of the Board of the Council, the registrar, employee or any officer of the council. The council itself their principal, is clearly excluded. This is further demonstrated in section 22 of the NECO (Establishment) Act that indemnifies the category of persons, being agent of the council protected thus:
“22. A member of the Board or the registrar or any officer or employee of the council shall be indemnified out of the assets of the council against any liability incurred by him in defending any proceeding whether or civil or criminal, if the proceeding, is brought against him in his capacity as a member registrar or other officer or employee of the council.”
For the foregoing reasons and the more detailed ones in the lead judgment, which I hereby concur, also dismiss the appeal for lacking in merits. I also affirm the order of the trial court dismissing the Appellants preliminary objection. I hereby adopt all the consequential orders in the lead judgment.
Appearances
APPELLANT AND COUNSEL ABSENTFor Appellant
AND
H.D.D. UWOM ESQ.For Respondent
