ENGR. G.F.C. EZEANI v. NIGERIAN RAILWAY CORPORATION (2013)

ENGR. G.F.C. EZEANI v. NIGERIAN RAILWAY CORPORATION

(2013)LCN/6549(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/L/344/2011

RATIO

IMPLICATIONS OF A STATUTE BARRED ACTION

The law is elementary, that when an action is statute barred, the action loses the right to enforce the cause of action by judicial process because the period of limitation had lapsed.
In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period.
It is not out of place to state that it is the right of action’ or right to judicial relief of the Appellant that is affected.
In ABIOLA V. OLAWOYE (2006) 13 NWLR (PT.996) page 1 at 21, it was held that time starts to run from the date on which the right of action accrues or, where the right of action is concealed, from the time the owner discovers the truth or could have done so with reasonable diligence. This has to do with land matters and limitation of action. In PAUDOH TRADING CO. LTD v. ABERE (2001) 11 NWLR (Pt.723) 114 @ 129, it was held that a cause of action arose as soon as a combination of circumstances giving rise to the right to file a claim in Court for a remedy accrues, or happens, and that it is the act on the part of the Defendant which gives the Plaintiff a right to complain.
Where a plea that an action is statute barred is raised at the trial, as in the instant case, the court is to determine when the cause of action arose or when the suit was filed. The Court must decide, by looking into the Statement of Claim, for the date when the cause of action arose and the Writ of Summons for the date when the action was filed. However, where the date as to when the cause of action arose is disputed by the parties, the trial Court should not determine the issue until evidence has been called on the issue – CBN v. AHMED (2001) 1 NWLR Pt. 724 @ 369.

A cause of action is the entire set of facts or circumstance 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 – EMIATOR V. NIGERLAN ARMY (1999) 12 NWLR (Pt. 631) 362; SANI v. PRESIDENT F.R.N. (2010) 9 NWLR (Pt.1198) 153.

Before Their Lordships

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria

TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria

Between

ENGR. G.F.C. EZEANIAppellant(s)

AND

NIGERIAN RAILWAY CORPORATIONRespondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering The Leading Judgment): This is an interlocutory appeal against the decision of the Federal High Court Lagos Division Coram Justice P. I. Ajoku, delivered on the 13th day of April 2011. In it, he upheld the preliminary objection of the Respondent and dismissed the Appellant’s claims in its entirety as being statute barred.
SYNOPSIS OF FACTS
The action, the subject matter of this appeal was dated 2nd of June 2010.
At the lower Court, the Appellant (as Plaintiff) sued the Respondent (as Defendant) at the Federal High Court claiming the following:
(a) A declaration that the purported retirement of the Plaintiff from the employment of the Defendant on grounds of public interest was premature, unlawful and unconstitutional and locked due process.
(b) A declaration that the Plaintiff has at all material times been and continues to be in the employment of the Defendant.
(c) An injunction restraining the Defendant from evicting the Plaintiff from his official residence or office or in any way harassing him.
(d) An order re-installing the Plaintiff as Director (Civil) of the Defendant.
(e) An order that the Plaintiff be paid all the arrears of his salary and other entitlements,
(f) An order that the Defendant pay exemplary damages in the sum of One hundred million naira (N1,000,000) for the degrading and inhuman treatment meted out to the Plaintiff contrary to the provisions of the 1999 Constitution.
After the Respondent filed his memorandum of appearance, he also filed a notice of preliminary objection challenging the jurisdiction of the Court in that the suit was statute-barred.
Upon the filing of the notice of preliminary objection, to which the Appellant filed a counter-affidavit, the learned trial Judge after hearing arguments from counsel, upheld the preliminary objection.
The Appellant was an employee of the Nigerian Railway Corporation having been employed in October 1979. On the 15th of April 2007, he was notified of his promotion to Grade Level 17. Barely three days later he was retired from the service of the Defendant vide a letter dated 18th April 2007, on grounds of “public interest”.
Precisely on the 22nd of April 2007, some armed policemen, purportedly on the orders of one Mr. J.C. Nwankwo forcibly ejected the Appellant from his office and changed the lock. The Appellant was not allowed to retrieve any of his personal effects.
Irked by this, the Appellant petitioned to the Bureau for Public Service Reforms through its Steering Committee on Reforms, who then investigated the matter.
Sequel to this, the Chairman of the Steering Committee and the Secretary to the Government of the Federation by a letter dated the 1st of August 2008 to the Minister of Transport ordered the immediate reinstatement of the Appellant.
After a period of about five months, the Minister of Transport vide letter dated 5th January 2009 directed the Managing Director of the Respondent to re-instate the Appellant within one month.
The management of the Respondent, ignored and indeed disobeyed this directive.
The Appellant again wrote to the Secretary to Government vide letter dated 16th September 2009, briefing him of the situation report. The Director (Parastatals) also required a situation report from the Appellant.
On the 17th of May 2009, the Respondent wrote to the Appellant refusing to re-instate him.
Again by letter dated 18th December 2009, the Respondent communicated to the Appellant its refusal to re-instate him.
Consequent upon this, the Appellant instructed its Lawyers to issue a pre-action notice dated 2nd February 2010, in accordance with Section 83(2) of the Nigerian Railway Corporation Act Cap N129, Laws of the Federation 2004.
At the expiration of the three (3) months pre-action notice, the suit was instituted in the court below on the 22nd of June 2010 (page 4 of the Record of Appeal).
The Appellant filed his Notice of Appeal on the 14th of April 2011 encapsulating three (3) Grounds of Appeal – pages 184-188 of the Record of Appeal. This is pursuant to the Practice Direction of this Court.
On the 6th of July 2011, the Appellant filed its Brief of Argument within the time stipulated by the Rules of Court. It is settled by B. Orekyeh (Mrs). In his Brief of Argument, the Appellant has distilled and proffered two (2) issues for determination. They are
(a) Whether having regard to Section 83 (1) of the Nigerian Railway Corporation Act and all the circumstances of the case, the suit was statute barred.
(b) Whether the Public Officers (Protection) Act is relevant in this suit.
The Respondent filed its Brief of Argument on the 17th of October 2011 but same was deemed filed on the 20th of February 2012, the Respondent having obtained an order of Court extending time to file his Brief of Argument. It is settled by A.A. Adedeji Esq.
The Respondent had proffered just one issue for determination. It is
“Whether the learned trial judge was right in dismissing the Appellant’s suit for being statute barred having regard to the facts and circumstances of this case?’,
I can safely say that this issue portends of an adoption of the issues for determination distilled by the Appellant. I shall however consider this appeal on the issues for determination proffered by the Appellant.
ISSUE NO 1:
WHETHER HAVING REGARD TO SECTTON 83 (1) OF THE NIGERIAN RAILWAY CORPORATION ACT AND ALL THE CIRCUMSTANCES OF THE CASE, THE SUIT WAS STATUTE BARRED.
It is the contention of the Appellant, that the suit is not statute barred having regard to the provision of Section 83 (1) of the Nigerian Railway Corporation Act Cap 139 Laws of the Federation of Nigeria 1958.
The Section provides that;
1. “No suit against the corporation or any servant of the corporation for any act done in pursuance or execution or intended 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 such Act or Law, duty or authority shall be or be instituted in any court unless, it is commenced within twelve months next after the act, neglect or default complained of or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof”.
He argues that the provision of Section 83(1) has two limbs. The first limbs ends with “neglect, default complained of”. The second limbs is “or in the case of a continuance of damage or injury within twelve months next after the ceasing thereof”.
He argues that action under the first-limb must be instituted within 12 months next after the act, neglect or default complained of, while the second limbs is “or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof”‘
The Appellant contends that the injury complained of is at all material times continuing, and had not ceased.
He argues that, in determining the issue of limitation of action, it is important to consider the date in which the cause of action accrued.
He submits that the surrounding circumstances of this case makes the actual date of accrual of cause of action fall under the first limb of Section 83 (1). That the Appellant’s cause of action accrued, pursuant to the letter of 13th December 2009, therefore falling completely under the first limb of Section 83 (1) of the Nigerian Railway corporation Act.
He submits that the Appellant instituted the action timeously.
He submits that the event whereby the cause of action became complete, so that the Appellant (being the aggrieved party) could begin and maintain his action, was the Respondent’s letter of 18th December 2009 in which the Respondent finally refused the re-instatement of the Appellant.
ON ISSUE NO 2: WHETHER THE PUBLIC OFFICERS (PROTECTION) ACT IS RELEVANT IN THIS SUIT.
The Appellant submits that the Public Officers (Protection) Act is not applicable to this suit. He submits that the Public Officers (Protection) Act is a statute of General application, unlike that of the Nigerian Railway Corporation which was created by the Nigerian Railway corporation of N129 of the Laws of the Federation of Nigerian 2004. He submits that this Act, in its Sections 83 (1) and 83 (2), specifically deal with Limitation of actions against the Nigerian Railway Corporation.
He submits that the provisions of Sections 83 (1) and 83 (2) of the Corporation Act must be complied with before any action against it can be instituted. That however Section 2(a) of the Public Officers (Protection) Act states as follows:
“Where an action; prosecution or other proceeding is commenced against any person or any act done in pursuance or 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 such act, 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, with three months next after the ceasing thereof”
He submits that like Section 83 of the Nigerian Railway Corporation Act; Section 2(a) of the Public officers (protection) Act has two limbs. That the effect of the provisions is that claims against public officers must be instituted in court within three months next after the accrual of cause of action under the first limb, and under the second limb, within three months next after the ceasing of the act, neglect or default complained of.
He submits that the learned trial Judge erred when he held that the suit was statute barred under Section 2(a) of the Public officers (Protection) Act, because that provision is not relevant, nor applicable to this suit.
The Respondent had argued that the effect of the provisions of Section 83 (1) of the Nigerian Railway Corporation Act Cap N129 Laws of the Federation of Nigeria 2004, and Section 2(a) of the Public officers (Protection) Act Cap. 374 Laws of the Federation of Nigeria 2004, is to deny the exercise of any right of action hitherto accruing to any person and destroy the remedy which has not been exercised by such person after the expiration of twelve months, or three months as the case may be from the date on which the right of action accrued.
That decidedly, in determining whether an action is statute barred or not, the court examines the writ of summons and the statement of claim, alleging the time when the wrong was committed which gave the Plaintiff a cause of action, and by comparing this with the time when the writ of Summons was taken out. That if the date of filing the action on the Writ of summons is beyond the period permitted by the statute of Limitation, then the action is statute barred citing OKE v. OKE (2006) 17 NWLR (Pt.1008) 224; WOHEREM V. EMEREUWA (2004) 13 NWLR (Pt.890) 398.
He submits that in this case, the Appellant was compulsorily retired by the Respondent, on the ground of public interest vide its letter dated 18th April 2007, but he did not institute any action until 22nd of June 2010. That his action is caught by Sections 83(1) of the Nigerian Railway Corporation Act and 2(a) of the Public Officers Protection Act, which each provide for 12 months and 3 months period respectively, after the accrual of the cause of action.
He submits that negotiation between parties do not stop time from running for the purpose of limitation of time citing EBOIGBE v. N.N.P.C (1994) 5 NWLR (Pt.347) 649.
He submits that the provisions of the Public Officers Protection Act is available to the Respondent, because it is created by statute, and deserves therefore the protection offered by Section 2(a) of the Act, more so when the injury complained of by the Appellant was done by the Respondent in the execution of its public duties.
That assuming, but without conceding, that the law applicable to this case is Section 83(1) of the Nigerian Railway corporation Act, the Appellant’s action would still have been caught by the Act’ if the cause of action accrues as it did on the 17th day of May 2009 when the Respondent told the Appellant to regard the matter as closed.
I shall consider Issues No 1 and 2 together and in doing so perhaps it is necessary to consider the surrounding circumstances in this case, to enable one determine how well the Law fits in, in allowing or dismissing this Appeal.
But before that, I find it pertinent to view the Law as it is in relation to the “STATUTE OF LIMITATIONS” or more aptly “LIMITATION OF ACTIONS.”
By virtue of Section 2(a) of the Public Offices Protection Act, earlier reproduced in this Judgment, no action, or prosecution shall be 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 after the ceasing thereof (underlined by me) – EGBE V. BELGORE (2004) 8 NWLR. (Pt.875) 336; NEPA V OLAGUNJU (2005) 3 NWLR (Pt.913) 602; ALHAJI V. EGBE (1986) 1 NWLR (Pt.16) 361; YUSUF V. EGBE (1987) 2 NWLR (Pt. 56) 341.
Now, decidedly, abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such protection – HASSAN V. ALIYU (2010) 17 NWLR (Pt.1223) 547 @ 622.

By Section 2(a) of the Public Officer Protection Act, the Law gives generous protection or cover to all Public Officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority, and are not acting outside their statutory or constitutional duty.
Thus, a Public Officer can be sued outside the limitation period of three months if, at all times material to the commission of the act complained of, he was acting outside the colour or scope of his office or outside his statutory or constitutional duty.
Where a Public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.

The corpus of legal authorities shout out loud’ that in order to determine a period of limitation, consideration must be given to the writ of Summons, and the statement of claim, alleging when the wrong was committed, and by comparing that date with the date on which the Writ of summons was filed. If the time on the writ of Summons is beyond the period allowed by the limitation law, then the action is statute barred. NEPA V. OLAGUNJU (2005) 3 NWLR Pt.913 620; IBETO CEMENT CO. LTD. V. A-G FEDERATION (2008) 1 NWLR, (Pt.1069) 490; HASSAN V. ALIYU (supra) at 619-620.
A defence founded on a Statute of Limitation, Like the Public Officer protection Act, is a defence that the plaintiff has no right of action. It is a defence which can be raised in limine. If the date of taking action outside the prescribed period is disclosed in the Writ of Summons and the Statement of Claim, it suffices’

There are however exceptions to the three months limitation period for commencement of action against public officers. These exceptions are for instance, where a public officer fails to act in good faith, or acts in abuse of office, or maliciously, or with no semblance of legal jurisdiction – LAGOS CITY COUNCIL v. OGUNBIYI (1969) 1 ALL NLR 279; CBN V. OKOJIE (2004) 10 NWLR (PT.882) 488; OFFOBOCHE V. OGOJA LGA (2001) 16 NWLR (PT.739) 458.

The purpose of limitations, like equitable doctrine of laches, in their conclusive effects, are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber – SULGRAVE HOLDINGS INC V. F.G.N (2012) 17 NWLR (PT.1329) 309 @ 343 paragraphs e-f.
The Writ of Summons, from records was instituted on the 22nd of June 2010 – pages 4-5 of the Record of Appeal.
Is this action filed by the Plaintiff/Respondent on the 22/6/2010 caught by the statute of Limitation, having regards to the provisions of section 83(1) of the Nigerian Railway corporation Act Cap. 129 LFN 2004?
It would also be necessary to determine that too. That Act stipulates twelve months next after the act, neglect or default complained of or in the case of continuance of damage or injury, within twelve months next after the ceasing thereof.
It must be noted that the word “person” as used in Section 2(a) of the Public officers Protection Act is not limited to natural persons or human beings, but includes artificial persons, corporations sole company or anybody or persons corporate or incorporate IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT.584) P1 @ 36; GYANG V. N.S.C. (2002) 15 NWLR (PT.791) PG.454 @ 464 – 465.
Certain paragraphs in the Statement of Claim are apt. They are paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17, 18, 19, 20, 22, 23. I hereby reproduce these paragraphs.
1. The Plaintiff, an engineer, has been at all material times the Director (Civil) in the employment of the Defendant and resident in the Defendant’s premises at No. 49 Nnamdi Azikwe Rood, Railway Compound, Ebute-Metta, Lagos.
2. The Defendant is a statutory body set up under the Nigerian Railway Corporation Act Cap. 323 of the Laws of the Federation 1990, having its head office at Railway Compound Ebute-Metta, Lagos.
3. The Plaintiff has been on employee of the Defendant since October 15th 1979.
4. The Plaintiff avers that by a letter of promotion dated 15th April 2007 he was notified by the Defendant of his promotion to the post of Director (Civil) at Grade Level 17. The letter shall be founded upon at the trial.
5. The Plaintiff further aver that barely 3 days after receiving the aforesaid letter of promotion from the Defendant, he received a further letter from the Defendant dated 18th April 2007 notifying him of his retirement from is service “in the public interest”, The letter shall be founded upon at the trial.
6. The Plaintiff avers that there was no basis whatsoever for the aforesaid letter and that he had served the Defendant meritoriously for 28 years without blemish. He has never been queried or indicted or found guilty of any known offence by any Tribunal or Committee.
7. The Plaintiff further avers that the Defendant on 2nd April 2007 acting through the agency of one Mr. J.C. Nwonkwo an employee of the Defendant gave orders to armed policemen who forcibly ejected the Plaintiff from his office and changed the lock to the said office, with the Plaintiffs possessions still in the said office.
8. The plaintiff further avers that to date his personal effects are still locked in the said office and he has not been able to gain access to the same.
9. The Plaintiff complained and made representation to the then Head of Service of the Federation-the Bureau for Public Service Reforms-through it’s steering committee on Reforms and they investigated the matter.
10. The Plaintiff avers that after investigation the Steering Committee aforesaid ordered his reinstatement. The Chairman of the said Committee and Secretary to the Government of the Federation by a letter dated 1st August 2008 with Rel. No.BP9R/ADM1167/IV/31 ordered his immediate reinstatement (within one month). The said letter shall be founded upon at the trial.
11. The BPSR directive aforesaid was by letter dated 5th January 2009 Ref. No.T.4316/S.69/CST/141 conveyed to the Defendant by the Minister of Transport.
15. By a letter dated 16th September 2009, the Plaintiff made a further appeal to the Secretary to Government of the Federation (SFG) for his intervention. The said letter together with the acknowledgement dated 26th October 2009 would be founded upon at the trial.
16. By letters doted the 7th May 2009 and 8th December 2009 the Defendant indicated it’s refusal to reinstate him, insisting that its initial retirement of the Plaintiff remained. The said letter will be founded upon of the trial,
17. The Plaintiff avers that the Defendant has refused, ignored and neglected to obey the aforesaid order to reinstate him.
18. The Plaintiff aver that the Defendant has totally ignored the provisions of the Public Service Rules 2006 in purporting to retire him on grounds of “public interest”
19. In particular, the Defendant has totally foiled to give an opportunity to the Plaintiff to answer to any allegations or complaints it may have had against him, thus acting contrary to the dictates of natural justice, the Civil Service Rules, as well as the 1999 Constitution.
20. The Plaintiff, by a letter dated 11th January 2010, made a further appeal to the Defendant to permit him resume his duties. The said letter will be founded upon.
22. The Plaintiff further avers that by reason of the foregoing illegal acts of the Defendant, he has suffered degradation, untold financial hardship, humiliation, mental anguish and physical discomfort.
23. By a letter dated 2nd February 2010 the Plaintiff through his Solicitors wrote o letter before action to the Defendant stating that unless the aforesaid illegalities were regularized within three months, he would commence legal proceeding against the Defendant, Paragraph 23 – By a letter dated 2nd February 2010, the Plaintiff through his Solicitor wrote a letter before action, to the Defendant, stating that unless the aforesaid illegalities were regularized within three months, he would commence legal proceedings against the Defendant – pages 7-10 of the Record of Appeal.
From the facts averred in the Statement of Claim, certain facts are apparent.
They are;
That the Appellant was employed by the Respondent on the 15th of October 1979. That on the 15th of April 2007, he was promoted to the post of Director (Civil) Grade Level 17. On the 18th of April 2007, he was retired from service “in the public interest.”
On the 22nd of April 2007, he was forcibly thrown out of his office. By letter written by Secretary of the Federation of 1st August 2008, the Respondent was ordered to re-instate the Appellant within one month after the Appellant complained, and made representation to the then Head of Service of the Federation- the Bureau of Public Service Reforms – through its Steering Committee on Reforms and they investigated the matter.
This directive was by letter dated 5th January 2009, conveyed to the Defendant by the Minister of Transport.
The Appellant made further representation to the then Minister of Transport. This directive was ignored. On the 17th of May 2009, the Respondent wrote to the Appellant refusing to reinstate him.
From above, it seems to me that the cause of action arose when the letter of 17th May 2009, from the Respondent, refusing to reinstate the Appellant issued. But the injury, (mental and psychological) inflicted on the Appellant continued.
The very acts of the Respondent, which acts were in bad faith, in that they failed and indeed refused to heed the directives of their Superior leaves much to be desired. What did the Respondent mean by retiring the Appellant “in the public interest” that term is at large.
It was the function of the learned trial Judge to have taken these circumstances into consideration, which would have made him appreciate that the circumstances of this case are different, and the Rules and laws should apply to it differently.
Whether this matter comes within the purview and ambit of the Nigerian Railway Corporation Act or the Public Officers Protection Act, the Respondent cannot hide under the statute of Limitations.
When it was clear that the Respondent would not take back the Appellant, that was when the Appellant issued pre-action notice to the Respondent.
Again I ask, what is the meaning of retirement of an employee “in the Public Interest”? From records, on the 1st of August 2008 vide letter titled “RE-INSTATEMENT OF SEVERED OFFICERS FROM PARASTATALS” the Permanent Secretary, BPSR and Secretary to the Steering Committee on reforms wrote to the Honourable Minister, Federal Ministry of Transport Central Area Abuja thus. I shall reproduce the letter.
‘BPSR/ADM.157/IV/37    1st August 2008
The Honourable Minister
Federal Ministry of Transport
Central Area
Abuja.
REINSTATEMENT OF SEVERED OFFICERS FROM PARASTATALS
The steering committee on Reforms (SCR) has approved the reinstatement of some officers who were disengaged during the public service reforms personnel clean up in Parastatals. Their reinstatement was sequel to the absence of sufficient evidence to uphold the grounds for their severance.
In compliance with this approval, the chairman of the SCR and secretary to the Government of the Federation has directed the immediate reinstatement of the following two (2) severed officers in Parastatals of your Ministry
Nigerian Railway Corporation
S/N     NAME
1. Engr. G. F. C. Ezeani, Director (Civil)
2.  J. B. Dannana D (Admin.)
You are accordingly requested to direct the Chief Executive of these parastatals to issue recall letters to the reinstate officers not later than two weeks from the date of your directive and also ensure their immediate re-absorption in accordance with the attached Guidelines for the Re-absorption of Reinstated staff. I have also been directed to request that copies of both the letter from your Ministry directing the reinstatement and the one from the Parastatals conveying the recall should be sent to the SCR through the
Bureau of Public Service Reforms. The process of reabsorption should also be concluded not later than one month from the date of the letters recalling the reinstated Officers.
Please accept as always the chairman’s warrant regards.
S.D. Matankari, OON
Permanent secretary, BPSR and Secretary to the Ssteering
Committee on Reforms”
It is my view that the bad faith exhibited by the Respondent and this blatant failure to accede to the directive of his Superior to reinstate the Appellant, stopped the time from running.
Decidedly, negotiation by the parties does not prevent or stop time from running EBOIGBE V. NNPC (1994) 5 NWLR. Pt.347 @ 649.
In the present case, the Respondent exhibited bad faith in all its ramifications. Moreso the injury to the Appellant still continues.
At Page 13 of the Ruling of the lower Court (Page 179) of the Record of Appeal) he observed thus, inter alia.
“It is quite clear from the above that the cause of action of the Plaintiff arose on his retirement from the service of his employer on or about the 18th of April 2007 and legally speaking time began to run for the purpose of the enforcement of his right from that date…”
With respect, this is a misconception and I find it difficult to agree to this opinion. This is because it was on the 17th of May 2009 that the Respondent wrote to the Appellant refusing to reinstate him. If anything, this was when the cause of action ostensibly arose.
The learned trial Judge at page 16 of his Judgment (Page 182 of the Record of Appeal) had held that…..even if the final letter of 17/5/09 of the Defendant to the Plaintiff of its intention not to reinstate him as a deposed to by the Plaintiff in paragraph 16 of his statement of claim is to be considered for its worth, the commencement of an action by the Plaintiff on the 22/6/2010 is clearly more than the three months allowed by the Public Officers Protection Act Section 2(a). Hence I hold that this action is statute barred”
Again, with respect I do not accede to this line of reasoning. It is my view that when this issue of retirement on grounds of “in the public interest” came up, coupled with the bad faith exhibited by the Respondent, it was the duty of the learned trial Judge to have taken evidence, in order to know exactly when the cause of action began instead of upholding the preliminary objection. This is because there blatantly’ were unusual circumstances surrounding this particular matter.
It was one of those matters that worked against the Respondent and in favour of the Appellant when it came to the issue of limitation of actions. The case came clearly within the exception to that Law regarding statute of Limitation as it relates to section 83 (1) of the Nigerian Railway corporation Act and the Public Officers Protection Act for that matter.
Decidedly, the surrounding circumstances in a particular situation is a major factor to be considered in equitably deciding when the Statute of Limitation can be wielded.
Regrettably, the learned trial Judge did not take into consideration the surrounding circumstances inherent in this case.
In view of the surrounding circumstances in this case, the suit was not statute barred. Consequently Issue No 1 is answered in the negative and same is resolved in favour of the Appellant.
The Public Officers (Protection) Act is definitely relevant in this case because the Employees of the Nigerian Railway Corporation are “public Officers”. It is true that the term has not been defined under the public officers’ Protection Act. But Section 318 of the Constitution of the Federal Republic of Nigeria 1999 defines “Public Service of the Federation” and “Public Service of the State”.
By virtue of Part I of the Fifth schedule paragraph 19 of the Constitution of the Federal Republic of Nigeria 1999, a Public Officer is defined as a person holding any office as specified in Part II of that Schedule. It refers to “other persons in the public Service”.

The provisions of Section 2(a) of the Public Officers Protection Act are plain and unambiguous and must be literally interpreted. The Act covers both natural and artificial persons. The Respondent had acted apparently pursuant to their duties as Public officer, even though their motive for so acting smacks of want of good faith. They acted in bad faith’ without a doubt – MOMOH V. OKEWALE (1977) 11 NSCL 365; IBRAHIM V. J.S.C. KADUNA STATE (1998) 14 NWLR (Pt.584) 1; SULGRAVE HOLDINGS INC. V. F.G.N. (2012) 17 NWLR Part 1329 309 @ 338 paragraphs a – d.
The public officers (protection) Act is therefore relevant to this suit. But the Act gives full protection and cover to all public officers or persons engaged in the execution of public duties and who at all material times acted within the confines of their public duty. If they do not act in good faith, or step out of their statutory authority and work within the confines of what is not in their power, like in the instant case, firing an employee “in the public interest”, a term that is so vague and so unexplained’ then the public officer automatically loses protection of the law – EKEOGU v. ALIRI (1990) 1 NWLR (Pt.726) 345; GARBA V. SHUAIBU (2001) 8 NWLR (Pt.716) 730; SANI V. PRESIDENT F.R.N. (2010) 9 NWLR (Pt.1198) 153.
Even though the Appellant says that the Public officers Protection Act is not applicable to this suit, I am of the view that it does, but it does not avail the Respondent; because of the surrounding circumstances of this case. The Appellant is entitled to benefit from either the provisions of Section 83(1) of the Nigerian Railway Corporation Act and Section 2(a) of the Public Officers Protection Law or both. This makes the case of the Appellant stronger.
This issue is answered in the affirmative and same is resolved in favour of the Appellant.
The appeal succeeds in its entirety and accordingly, is allowed. The Ruling of the Federal High Court Coram P. I. Ajoku delivered on the 13th day of April 2011, whereby he upheld the Preliminary Objection filed on the 19th of October 2010 by the Defendant/Applicant (Respondent in the Appeal) in Suit No FHC/L/CS/754/2010 is hereby set aside.
The case shall be remitted to the President of the National Industrial Court for reassignment to any Judge of the National Industrial Court for hearing and determination on the merits.
No order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the comprehensive judgment of my learned brother, Rita Nosakhare Pemu, J.C.A. with which I agree and adopt as my judgment with these few words on Section 83(1) of the Nigerian Railway corporation Act cap. N.129 Laws of the Federation of Nigeria 2004 and Section 2(a) of the Public officers (Protection) Act cap,374 Laws of the Federation of Nigeria, 2004.
Section 83(1) of the Nigerian Railway corporation Act (supra) was lifted from the English Public Authorities Protection Act, which was considered by Scrutton, L.J., in the English case of Scammell and Nephew Ltd v. Hurley (1929) 1 K.B. 419, where the learned Lord Justice held that –
“To require the protection of the Public Authorities Protection Act, the acts must be acts not authorized by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power”.
(My emphasis).
The case of Scammel and Nephew Ltd. v. Hurley (supra) was followed by the Supreme Court in the case of Godwin Nwankere v. Joseph Adewunmi (1967) NMLR 45 at 48 – 49 where Brett, J.S.C., reading the judgment of the Court held inter alia that –
“We agree with Dufus, J., in reqarding that passage (the passage in Scammell v. Hurley (supra) quoted above) as applying equally to the public officers protection law. The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification…”
(My emphasis).
Bad faith or malice or acting without legal justification therefore disables the application of both statutes of limitation.
To underscore the bad faith or malice of the respondent it is imperative to copy paragraphs 15 and 16 of the affidavit of the appellant against the preliminary objection to the jurisdiction of the court below in page 148 of the record of appeal which was ignored by the respondent. It reads –
“15. That further to paragraph 14 above, the Plaintiff/Respondent’ petitioned several government agencies for his reinstatement namely:
(a) Bureau for Public Service Reforms through it’s steering committee on Reforms which investigated the matter and ordered the Plaintiff/Respondent’s immediate reinstatement by lettered dated 1st August 2008 Ref. No. BPSR/ADM/67/IV/31.
(b) That by a further letter dated 5th January 2009 the Minister of Transport directed the Defendant/Applicant to reinstate the Plaintiff/Respondent.
(c) That on the 16th September, 2009, the Plaintiff/Respondent appealed to the Secretary to the Government of the Federation (SFG) for intervention.
16. That the Defendant/Applicant, by its letters dated 17th May, 2009, 18th December 2009 respectively indicated its refusal to reinstate the Plaintiff/Applicant.”
The indifference of the respondent to the directive by its superior to reinstate the appellant into his erstwhile post therefore eliminated good faith in the respondent’s action that led to the demise of the employment of the appellant.
It is therefore clear at first sight that on the face of the facts presented at the court below the respondent acted in bad faith and/or in abuse of office in dispensing with the services of the appellant. The instances of bad faith emerged from the nebulous reason of “public interest” assigned by the respondent for putting an end to the appellant’s employment. The obstinacy, insubordination and impunity the respondent also displayed by its refusal to reinstate the appellant to his erstwhile position in total disregard of the directives from the respondent’s supervising ministry, the Ministry of Transport, also, smacked of bad faith and showed the respondent had ulterior motive other than public good in dispensing with the appellant’s services.
It follows that the respondent acted in bad faith in the circumstances of the case and cannot rely on or enjoy the benefit of Section 83(1) of the Nigerian Railway Act (supra) and Section 2(a) of the Public Officers (Protection) Act (supra). I think, with respect to the court below, that if it had looked at, the angle of malice or bad faith that characterised the act of the respondent in retiring the appellant from employment it would have reached a different result from the startling result it reached in striking out the suit of the appellant on ground of time-bar under Section 83(1) of the Nigerian Railway Act (supra) and Section 2(a) of the Public Officers (Protection) Act (supra.)
Accordingly, bad faith held the hand of the clock and prevented time from running against the institution of the action at the court below against the respondent for the purpose of Section 83(1) of the Nigerian Railway Act (supra) and Section 2(a) of the Public Officers (Protection) Act (supra).
It is for the reason given above and for the elaborate reasons contained in the lead judgment that I too see merit in the appeal and hereby allow it and abide by the consequential orders contained in the said lead judgment.

TIJJANI ABUBAKAR, J.C.A.: My learned brother PEMU, JCA no doubt stated the settled position of the law, that where there is apparent bad faith on the part of the public officer like the instant case, where the Respondent exhibited obvious desire to do malice by disregarding lawful appropriate and reasonable instructions to re-instate the Appellant under the cover of so called “public interest”, such action gives a very clear and undoubted impression of bad faith, the action ‘portrays the Respondent as a party who from the on-set, designed to commit an act against the Appellant totally lacking in slightest semblance of legal justification.
Onnoghen JSC in HASSAN vs. ALIYU (2010) 17 NWLR PART 1223 PAGE 547 AT 591 said
“It is however correct that when a Public Officer acts outside the scope of this authority or without semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.
I entirely agree with my learned brother PEMU, JCA that this appeal is meritorious and it is also allowed by me, the ruling of the lower court delivered on 13th April, 2011 upholding Defendants/Respondents preliminary objection is set aside.
I abide by all consequential orders including orders on cost.

Appearances

B. N. Orekyeh (Mrs) with C. R. Megafu (Mrs)For Appellant

AND

Adedeji Ade Esq. with Olusegun Idowu Esq. and Sola Afuwape Esq.For Respondent