AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS v. ANIEKAN WILSON AKPAN (2013)

AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS v. ANIEKAN WILSON AKPAN

(2013)LCN/6567(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of December, 2013

CA/C/37/2012

RATIO

WHETHER AN ACTION IS MAINTAINABLE UPON THE EXPIRY OF THE PRESCRIBED LIMITATION PERIOD

The period of limitation begins to run from the date on which the cause of action accrued. Therefore when dealing with a limitation statute, it is always necessary to ascertain the exact date on which the cause of action arose. See: Eboigbe v. N.N.P.C. (1994) 5 N.W.L.R. (Part 347) 649 at 663; Aremo II v. Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132 – 2133.

An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable. The court would have no jurisdiction to entertain a statute barred claim. Therefore legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. See: Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258.
It has been well pronounced in a number of judicial authorities that in order to determine whether an action is statute barred, all that is required is for the court to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action; and, comparing that date with the date on which the writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute barred: See the case of Egbe v. Adefarasin (supra); Aremo II v. Adekanye (supra); Woherem v. Emereuwa (2004) 6-7 SC. 161, (2004) ALL FWLR (Pt. 221) 1570 at 1581 -1582.
The statute of limitation does not take away the cause of action but it removes the right of action, the right of enforcement, the right to judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce. See: Egbe v. Adefarasin (1987) 1 NWLR (Part 47) 1, Araka v. Ejeagwu (2000) 12 SC (Part 1) 99. Per ONYEKACHI A. OTISI, J.C.A.

WHETHER A LEGAL RIGHT TO ENFORCE AN ACTION IS PERPETUAL

It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation clause in the POPA had elapsed.
Sadly, the Respondent has a cause of action but nowhere to litigate it.
See Adeosun v. Jibesin (2001) 4 WRN pg.106. Per UZO I. NDUKWE-ANYANWU, J.C.A

EFFECT OF PROCEEDINGS COMMENCED WITHOUT JURISDICTION

The question of jurisdiction is very fundamental that the court should determine before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amounts to a nullity. Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) pg. 527. Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) pg.623. Per UZO I. NDUKWE-ANYANWU, J.C.A

WHETHER AN ADMINISTRATIVE BODY HAS THE AUTHORITY TO CONDUCT A CRIMINAL TRIAL

The law is however well known now, since it is settled, that only a court of law or tribunal set up by law, has the judicial power and authority to try a person accused of the commission of a criminal offence or a crime. That an administrative body by whatever name called, has no such power and authority in the conduct of an administrative, executive or quasi-judicial investigations of allegations made against any person. Where a person is alleged to have committed a crime, acts or conduct/s which amount to the commission of a criminal offence in law, then such an allegation can only be laid before and tried by a court of law. Judicial authorities on this trite position of the law are many including the ones cited by the learned counsel for the Respondent and the High Court in its judgment. Others are Baba v. N.C.A.T.C. (supra); Biishi v. JSC (1991) 6 NWLR (197) 231; University of Uyo v. Essel (2006) ALL FWLR (315) 80; Egbuniwe v. F.G.N. (2010) 2 NWLR (1178) 348. Per MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. AKWA IBOM STATE CIVIL SERVICE COMMISSION
2. MINISTRY OF FINANCE & ECONOMIC DEVELOPMENT
3. THE ATTORNEY GENERAL OF AKWA IBOM STATE
4. THE AKWA IBOM STATE GOVT. Appellant(s)

AND

ANIEKAN WILSON AKPAN Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated and filed on the 3/7/2001 in the Registry of the High Court of Akwa Ibom State, at Eket, the Respondent had sued the Appellants and claimed as follows:-
“The Plaintiff claims against the Defendants jointly and severally as follows:-
a) A declaration that the purported dismissal of the plaintiff from the 4th Defendant’s service vide letter No. AKC/5/0076/S.S/Vol.1/34 signed by Francis U. Idiong on behalf of the Chairman of the 1st Defendant and dated 27th February, 2001 is incompetent, unlawful, null and void and a total breach of the principles of natural justice and the Civil Service Rules.
b) Reinstatement and promotion of the plaintiff as the Executive Officer (Accounts) with his entitlements from 1/3/2001 till judgment.
c) N500,000.00 being special and general damages for unlawful dismissal from services and wounded pride.”
After pleadings were settled by the parties, the case proceeded to trial at the end of which the High Court entered judgment in favour of the Respondent on the 10/8/2009 even though it found that the case was commenced outside the period of three (3) months after the cause of action arose contrary to the provisions of Section 1(1) of the Public Officers Protection Law of Akwa Ibom State, 2000. The High Court had held that the Appellants were not entitled to the protection of that law on the ground that “what the defendants did was not within the confines of the law and constitution to entitle them to protection. They were not discharging or executing their duties/officers (sic) when they passed the judgment in Exhibit 5.” See page 173, lines 15-19 of the record of appeal.

Being aggrieved by the decision of the High Court, the Appellants brought this appeal against it vide a notice of appeal dated the 21/6/2010 but filed with the leave of the court granted on 9/6/2011, on the 21/6/2011. In line with the Rules of the court, briefs of argument were filed by the learned counsel for the parties as follows. The Appellants’ brief filed on the 10/4/12 and the Respondent’s brief filed on 16/8/12 were both deemed properly filed on the 17/1/13.
At the oral hearing of the appeal on the 4/11/2013, the learned counsel for the parties adopted the briefs as their respective submissions in support of their positions in the appeal and urged the court to uphold same.
From the two (2) grounds contained on the notice of appeal, the learned counsel for the Appellants has raised the following issues for determination in the appeal.
“3.01 Whether the learned trial judge erred in law when he assumed jurisdiction in this matter and entertained same after he had agreed that the matter was brought about 5 (five) months after the issue of Exh. ‘5’ which conveyed the alleged notice of dismissal (Ground 1).
3.02 Whether the learned trial judge was right to have considered the merit of the case when he had no jurisdiction to do so (Ground 2).
For the Respondent, the issues for decision by the court, as set out in the Respondent’s brief are:
1. Whether section 1(1) of the Public Officers (Protection) Law, Akwa Ibom State will avail the defendants/Appellants who were not acting within their purview, powers and statutory duties.
2. Whether the learned trial judge did not have jurisdiction to entertain this matter.
The substance of the issues formulated by the learned counsel are clearly the same though put in different forms and since they are derivable from the grounds of the appeal, I intend to use the Appellants’ issues in the determination of the appeal.
ISSUE NO.1
The learned counsel for the Appellants had set out the provisions of section 1(1) of the Public Officers Protection Law, Cap 40, Vol. 5 of the Laws of Akwa Ibom State, to called Cap. 40 hereafter, and submitted on the issue that in order to determine whether an action is caught up by the period of limitation prescribed by a statute, consideration must be given to the writ of summons and statement of claim on when the cause of action arose and when the action was filed. If the time on the writ of summons was/is beyond the period allowed by the limitation, then the action is statute barred on the authority of Hassan v. Aliyu (2010) 17 NWLR (1223) 547 at 610 – 20; Sanni v. Okene L.G. (2005) 14 NWLR (944) 60 at 74; Kasandubu v. Ultimate Pet. Ltd. (2008) 7 NWLR (1086) 274 at 304.
Reference was made to the claims by the Respondent at pages 1-7 of the record of appeal and it was pointed out by counsel that both the writ of summons and the statement of claim were filed on the 3/7/2001. That the cause of the Respondent’s action arose when he was dismissed from service vide the letter dated 27/2/2001 and so since the action was filed in July 2001, it was clear that the action was filed five (5) months after the cause of action arose, a period outside the three (3) months prescribed by the provision of section 1(1) of Cap. 40. Learned counsel said that the High Court had found that the action was filed or brought by the Respondent “about 18 months of the alleged date of commencement of the dismissal or 5 months after the issue of Exh. 5 which conveyed the alleged notice of dismissal” in its judgment at page 173 of the record of appeal. Relying on the cases of Olagunju v. PHCN (2011) 197 LRCN, 76 at 88 and Unity Bank Plc v. Nwadike (2009) 4 NWLR (1131) 352, counsel submitted that the action was clearly statute barred and the right of an action extinguished by the effluxion of the prescribed period of three (3) months in section 1(1) of Cap 40 and that the Respondent no longer had an enforceable cause of action. Further, that where a law prescribes a period for instituting an action, proceedings cannot be instituted after the period as it is statute barred and therefore robs a court of jurisdiction to entertain the action. We are urged to hold that the High Court erred in law when it assumed jurisdiction and entertained the Respondent’s action when it had found that it was brought outside or after the expiration of the time limited in section 1(1) of Cap. 40. To resolve the issue in favour of the Appellants.
On the Issue 2, it was submitted by the learned counsel for the Appellants that the law is that where a defendant invokes the provisions of the Public Offers Protection Law in an action, a trial court is enjoined at that stage, to consider whether the action of the plaintiff is maintainable and not whether the defendants are liable. The cases of Egbe v. Alhaji (1989) 1 NWLR (128) 546 at 572; A.G.F. v. Abacha (2010) 17 NWLR (1221) 1 at 27 and Hassan v. Aliyu (supra) were relied on for the submission and it was argued that the High Court ought to have concerned itself with whether the action of the Respondent is maintainable and not whether the Appellants acted within the confines of the law or constitution to entitle them to protection, as it did in the judgment appealed against. We are urged to hold that the High Court erred in law when it assumed jurisdiction over the Respondent’s action on the ground that the Appellants did not act within the confines of the law or constitution and to allow the appeal on that ground.
It was then submitted that the law is trite that a court cannot make a case for the parties and that none of the parties in the Respondent’s case had contended that the Appellants were not discharging or executing their duties when they issued Exhibit ‘5’. Rather, it was contended, the parties are ad idem that the said Exhibit was issued by the Appellants to the Respondent in the course of their duties.
In further arguments, counsel said the law is that where a court has no jurisdiction to hear and determine a case, any step taken therein, is a nullity and void on the authority of NCC v. MTN Nig. Comm. Ltd. (2008) 7 NWLR (1086) 229 at 260 and Goji v. Ewete (2007) 6 NWLR (1029) 72 at 81. The court is urged to declare the judgment of the High Court a nullity for it was delivered without jurisdiction and in conclusion, once again, to allow the appeal and set aside the said judgment.
For the Respondent, it was submitted on issue 1, that Cap 40 is not a blanket provision to cover or condone irregularities and obvious wrongs by/of public officers. That to take advantage of the protection provided by the law, public officers must have to show or prove that they acted within the confines of their statutory or constitutional duties and powers. The cases of NEPA v. Olagunju (2005) 3 NWLR (913) 602 at 609 and Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (584) 1 were cited for the submission.
Learned counsel for the Respondent said DW1 had said under cross-examination that the respondent was found guilty of fraud; a criminal offence by the administrative panel that investigated the matter and that the report of the panel was the basis of the dismissal of the Respondent. Relying on section 36 of the Constitution of the Federal Republic of Nigeria, 2004 (sic) as well as inter alia, Ekundayo v. University of Ibadan (2007) 12 NWLR (681) 220 at 226; Dangote v. CSC, Plateau State (2001) 9 NWLR (777) 132 at 138 and Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (490) 675 at 682, he submitted that an allegation of a crime against a person can only be tried by a court of law and not by an administrative panel, in Nigeria. According to counsel, by trying the Respondent for a criminal offence of fraud and finding him guilty, the administrative panel of the Appellants had usurped the powers of a court of law under the constitution and so the Appellants acted outside the scope of the statutory duties and they cannot be protected by the laws they breached. Reference was made to the case of NEPA v. Olagunju (supra) among others, and we are urged to hold that the High Court was right to have held that the Appellants acted outside their statutory duties and so were not entitled to the protection of the provisions of Section 1(1) of Cap. 40. The court is urged to resolve the issue in favour of the Respondent.
On the issue 2, learned counsel had argued that the principle of law stated in the case of A.G.F. v. Abacha (supra) relied on for the Appellants has the qualification that the public officer acted within the colour of his office, as clearly stated therein, and that the Appellants were found by the High Court not to have acted within the colour of their offices when they dismissed the Respondent. That the High Court was entitled not only to enquire whether the Respondent’s action was maintainable but also whether the Appellants acted within the colour of their offices to be entitled to the protection of the law. Kapo v. Okorie (2012) ALL FWLR (612) 1778; Okeme v. C.S.C. Edo State (2000) 14 NWLR (688) 480 at 484 and University of Ilorin v. Oyalara (2001) 15 NWLR (737) 684 at 691 were cited on the law that public officers would only be entitled to the protection of the law if they acted within the scope of their authority and we are urged to hold that the High Court was right to have assumed jurisdiction over the Respondent’s case since the Appellants did not act within the scope of their statutory and constitutional powers in dismissing the Respondent even if the case was instituted after three (3) months of the dismissal. The court is urged to resolve the issue in the Respondent’s favour and in conclusion, to dismiss the appeal and affirm the decision by the High Court.
Let me start a consideration of the issues together by saying that the learned counsel are right that the law is now firmly established that where the provisions of a statute provide for or prescribe the period within which a particular action or group of actions shall be commenced or initiated through or by the use of the judicial processes of a court of law, for such an action/s to be proper, competent and therefore maintainable in law, it/they, has/have to be commenced or initiated within the prescribed or stipulated period of time in the statute. Such a statute is what is called, for the purposes of commencement or initiation of an action, a statute of limitation because the statute limits the period within which the action can be taken or brought by the party entitled in law to do so, in a court of law.

For the action to be competent and thereby properly and effectively invoke the statutory jurisdiction of the court to adjudicate over it, it has to be initiated or commenced by the processes of the court, within the stipulated period of time in the statute. The law generally, is that where such an action was initiated or commenced after the expiration or effluxion of the period of time stipulated or prescribed by a limitation statute applicable to it, it becomes statute barred thereby robbing a court of law the requisite statutory power and authority which together mean jurisdiction, to entertain and adjudicate over it. The statute of limitation of actions deals with and restricts or limits the time within which the right of a party to utilize or use the judicial processes of a court of law to seek or claim relief for alleged wrongs suffered from the act/s of another party. It relates to the enforcement of a right through the judicial processes of a court of law by limiting the time within the right can be exercised and does not take away the right of action itself, after the expiration of the time limited. However after the expiration of the limited period, a party is left with a right of action which cannot in law be enforced through the use of the processes of a court of law and so legally barren. In addition to the cases cited by learned counsel supra on the above principles of law. See Egbe v. Adefarasin (1987) 1 SCNJ, 1; Adimora v. Ajufo (1988) 6 SCNJ, 18; Sanda v. Kukawa L.G. (1991) 2 NWLR (174) 379; P. N. Udoh Trad. Co. Ltd. v. Abere (2001) 5 SC (Pt. II) 64 at 73 – 4; Hon. Kolo v. A.G.F. (2003) FWLR (184) 349; Olagbeji v. A.G., Ondo State (1984) 5 NCLR, 147 at 159.

The law is also settled that in order to determine whether an action is statute barred, a court would simply look at and consider the date on which the action was initiated, usually vide the writ of summons or originating process as the case may be, along with facts set out in the statement of the claim in the action disclosing when the cause or right of action was said to have arisen. If the date the initiating process was filed in court to commence the action is outside or after the expiration of the period of time stipulated or prescribed in the limitation law from the date when the cause or right of action was stated to have arisen in the statement of claim, then action is statute barred. University of Ibadan v. Adetoro (1997) 4 NWLR (185) 375; Jallco Ltd. v. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (391) 534 at 538; Ogunko v. Sheile (2004) 6 NWLR (868) 17; Osun State Govt. v. Danlami Nig. Ltd. (2007) ALL FWLR (365) 438; Aremo II v Adekanye (2004) 7 SC (Pt. II) 28.
In the present appeal, the parties are one that the cause of the Respondent’s action against the Appellants was the dismissal from service of the Respondent by the Appellants vide letter dated the 27/2/2001. Again, there is no dispute that the Respondent initiated or commenced the action against the Appellants vide the writ of summons which is at pages 1-3 of the record of the appeal and filed on the 3/7/2001. As stated elsewhere before now, this clearly shows that the action was taken or brought or initiated or commenced by the Respondent about five (5) months after the cause of the action arose and the right of action accrued to him upon the receipt of the letter of dismissal dated 27/2/2001. The provisions of section 1(1) of Cap. 40 are as follows:-
“1(1) where any action, prosecution or other proceedings is commenced against any person for any act in pursuance of execution or intended execution of any Act or Law of any public duty or authority or in respect of any alleged neglect or default in the execution of any Act, law, duty or authority, the following provisions shall have effect;
(a) the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of or in the case of continuance of damage or injury within 3 months next after ceasing thereof.
(b) provided that the action, prosecution, proceedings be at the instance of any persons for cause arising while such person was a convict prisoner, it may be commenced within 3 months after the discharge of such person from prison.”
Undoubtedly, by the provisions in section 1(1)(a) above, since the Respondent’s action against the Appellants was for an act in pursuance or intended execution of public duty or authority, it was to be instituted or commenced within three (3) months after the act complained of (dismissal) otherwise, “the action, prosecution or proceedings shall not lie”. Put simply, the action of Respondent was to be commenced, or brought in the High Court against the Appellants within three (3) months of the dismissal or it could not in law, be brought or commenced thereafter. The provisions limit the time within which the action could be commenced or initiated and so is a limitation law for such an action.
The parties are in agreement and the High court had found and held that the Respondent’s action was initiated or commenced by him outside the period of three (3) months stipulated in the above provisions of the law. This is what the High Court said in its judgment on the issue at page 123, lines 12 – 15 of the record of appeal:
“I, therefore, hold that this case is competent before me, even when it was brought about 18 months after the alleged date of commencement of the dismissal or 5 months after the issue of Exh. ‘5’ which conveyed (sic) the alleged notice of dismissal.”
So from the record, there is no doubt that the Respondent’s action was brought and commenced before the High Court outside of and after the expiration of the three (3) months limited by the provisions of Cap. 40 for the commencement or initiation of the action. There is also no record of a dispute on the applicability of Cap. 40 to the action of the Respondent between the parties. The only complaint by the learned counsel for the Appellants in the appeal is that the High Court in its judgment had held that even though the Respondent’s action was brought outside the period of time limited by the provisions of section 1(1) of Cap 40, since the Appellants did not act within the confines of the law and constitution in the dismissal of the Respondent, they were not entitled to the protection of that law. It should be noted that the Cap 40 which seeks to protect public officers in the discharge of their public duties is not interpreted and applied by the courts like other statutes of limitation such as relate to claims for recovery of land or in tort by which, save for the exceptions made therein, no excuse for their application is cognizable in law.

Over the years because Public Officers Protection Laws seek to provide the necessary protection to public officers from unwarranted inhibitions and distractions from the effective and lawful discharge of their statutory duties and functions for public good, the attitude of and position of the courts have been that for the public officers to be entitled to take refuge under and enjoy or benefit from the protection of the law, they have to act within the scope or purview of the powers or/and authority of their offices in the discharge of their functions or performance of the duties of such offices. Where a public officer acted within the limits, colour, scope, confines or purview of the statutory power/authority of his office and in pursuance of the execution of such public duty or function, he will be entitled to and be protected by the provisions of the law in actions commenced against him in respect of the act/s done in the course of discharging the duty or performance of the functions of his office. When however, a public officer acted outside the scope or colour of the power and authority of his office and duties or functions, he is not entitled to and is not protected by the limitation of action provided for in the relevant law. In the recent case of Hassan v. Aliyu, (supra), the position of the law was restated by the Supreme Court as follows:-
“On the purport and scope of Section 2(a) of the Public Officers Protection Act, it is well established that the Act given full 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. A public officer can be sued outside the limitation period of three months if, at all material times 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 he acted within the colour or scope of his office, he can only lose protection of the limitation laws if he is sued within three months. Ibrahim v. JSC, Kaduna State (1998) 14 NWLR (Pt. 584) Pg. 1.”
The provisions of section 2(a) of the Act considered in the case are the same with the provisions of section 1(1) of Cap 40, applicable to the Respondent’s case before the High Court. Dealing with the same provisions of the Act, the apex court in the more recent case of A.G., Rivers State v. A.G., Bayelsa (2012) 6-7 MJSC (Pt. III) 149 at 181 & 182 had said:-
“The Act is intended as much as within the ambit of the law to protect a public officer from detraction and unnecessary litigation, but never intended to deprive a party legal capacity to ventilate his grievance on the face of stark injustice. That is why public officers or heads of the Agencies of the Federation or State are protected, two most important exceptions are prescribed by the Act.
Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty.”
See Nwankwere v. Adewunmi (1967) NMLR 45 at 49; Anozie v. A.G.F. (2008) 10 NWLR (1095) 278 at 290-1; Aremo II v. Adekanye (supra); Agboola v. Saibu (1991) 2 NWLR (175) 566; Alapiki v. Gov. of Rivers State (1991) 8 NWLR (211) 575; Minister, P.M.R. v. E.L. Nig. Ltd. (2010) 12 NWLR (1208) 261; A.G.F. v. Abacha (supra).
Where a party therefore raises the defence of the limitation of action under the Public Officers Protection Law/or Act in a case, the defendant has the duty to adduce evidence that the act complained of was done within the confines and in the discharge of its statutory public function or in exercise of the statutory power and authority of the public office under which the act complained of was done. On its part, a trial court also has a duty in the consideration of the defence, to determine whether or not any of the exceptions enunciated in the above authorities applies to the action as far as the facts and evidence before it disclose such exceptions. Because the exceptions are provided for in the law itself, even if not alluded by any of the parties as long as the facts and evidence adduced by them show the existence of any of the two exceptions in the case, the trial court has the power and is under a duty to consider it in the determination of whether the act/s complained of enjoy/s the protection of the law. The courts have a duty not only to take judicial notice of existing statutes under the provisions of section 22(2)(a) and (b) of the Evidence Act 2011, applicable to cases before them whether or not any of the parties allude to them, but to also apply the provisions of the law wholistically and not to pick and choose parts or bits and pieces of specific provisions.
In these premises, the High Court did not have to wait for the parties to allude to the exceptions to the applicability of the protection provided for in the provisions of section 1(1) of Cap. 40 before considering them in its determination of whether or not the Appellants are entitled to the protection of the period of limitation of actions provided therein. Since the Appellants had raised the issue of the application of the provisions of the section to their action which gave rise to the case by the Respondent against them, the High Court was entitled to consider if the exceptions provided therein apply in the case.
It may be remembered that the exception considered by the High Court in its judgment was that the Appellants did not act within the confines of the law and constitution in the dismissal of the Respondent. This was what the High Court said on the issue at pages 170 – 171 of the record of appeal:-
“The Defendants cannot claim the protection of the Public Officers (Protection) Law in this case, to excuse their constitutional breaches, when they were acting against the law that established their office(s), and regulates their functions; they cannot run to the law for covering and protection, when pursued by the consequences of their unlawful act(s).
The Defendants had power to set up the Administrative panel to investigate or enquire into the alleged attempt to defraud the 4th Defendant. But they had no power to upgrade or turn the Administrative panel to a “court” or “Tribunal” to try and convict the plaintiff on a criminal allegation, and to act on the “verdict of guilt” passed by the said panel to punish the Plaintiff with dismissal.”

Apparently, the reason which appears from the above finding of the High Court that the Appellants did not act within the confines of the law and constitution in dismissing the Respondent was that the administrative panel which investigated the case of the Respondent was upgraded or turned to a “court” or “Tribunal” to try and convict him on a criminal allegation and then act on the verdict of guilt to punish him with dismissal.

From the facts and evidence before the High Court, was the administrative panel which investigated the allegations against the Respondent “turned or upgraded” to a court or tribunal which tried and convicted him of a criminal offence? Put concisely, did the said panel try and convict the Respondent for a criminal offence in the course of its investigations from the facts and evidence placed before the High Court?
The relevant facts in the Respondent’s Amended Statement of Claim dated and filed on the 19/6/2006 are in paragraphs 6-7 and 9 which are as follows:-
“6. Quite surprisingly, our client sometime in December, 1999 received a query from the 4th Defendant alleging that he was a member of a syndicate whose aim was to defraud the 4th Defendant to the tune of N2,121,430.70 (Two Million, One Hundred and Twenty-one Thousand, Four Hundred and thirty naira, seventy-two kobo). The said query is hereby pleaded.

7. The plaintiff avers that he replied to the query exhaustively explaining point by point all he knew about the issues raised in the query. The reply to the query dated 28/2/2000 is hereby pleaded to be founded upon at the trial of the suit, the 2nd Defendant is hereby put on notice to produce that original copy at the trial suit.

9. The plaintiff states further that he was summoned to appear before a panel of inquiry constituted by the Accountant-General of the 4th Defendant wherein he appeared and explained himself.”

The evidence of the Respondent in support of the above pleadings is at page 124 and at 128 – 129 of the record of appeal to the effect that he was issued a query which he answered and that he appeared before a panel and explained himself, thereafter. The Respondent repeated the same evidence under cross-examination.
The Appellants in the Amended statement of defence and evidence of DW1 presented the same case as that of the Respondent in respect of the query and appearance before the panel that investigated the allegations against him. See paragraphs 4, 6, 8 and 9 of the Amended Statement of Defence at pages 39 and 40 of the record of appeal and evidence of DW1 at pages 140 and 141 of the record of appeal.

In its judgment at page 171 of the record of appeal which I have set out earlier, the High Court had stated inter alia that:-
“The defendants had the power to set up the Administrative Panel to investigate or enquire into the alleged attempt to defraud the 4th Defendants.”
This statement by the High Court means clearly that by setting up or appointing the panel to investigate the allegation against the respondent, the Appellants had acted within the confines of the law since they have the power to do so and thereby acted in the discharge of their statutory duty within the scope or colour of such public duty of their offices.
The terms of reference given to the panel set up by the Appellants as contained in Exhibit ‘8’, were thus:-

a) To examine, investigate and obtain explanation from officer(s) concerned with a view to ascertaining the circumstances of the fraud.
b) To determine the actual amount of the fraud.
c) To ascertain whether the fraud was as a result of negligence on the part of any officer(s) and by whom.
d) To ascertain the degree of negligence on the part of officer(s) considered responsible for the loss and make recommendations for surcharge or any other disciplinary action other than surcharge against officer(s) involved in the fraud.
e) To recommend measures for the prevention of future occurrence, if any weakness in the system of control or security is revealed.”

By these terms of reference, the panel was mandated to enquire into, investigate, examine, check to discover, find out, ascertain or determine the facts of the allegation of fraud from all the officers against whom it was made, including the Respondent. In the discharge of the mandate given to it, the panel issued a query to the Respondent containing the specific allegation against him and the Respondent replied the query in Exhibit 3.
In addition, the panel invited the Respondent to appear before it in respect of the same allegation and he appeared and “explained myself”.
The issue of the query to the Respondent and his invitation to appear before it by the panel are undoubtedly within the scope and colour of the mandate or duty given it in the terms of reference set out above. It cannot therefore be said to have acted outside the confines of the law and constitution in so doing.
What then did the panel do in the course of discharging its mandate that can be termed or called as acting outside the confines of the law and constitution from the evidence before the High Court?
The relevant evidence of the Respondent is that page 134 of the record of appeal where he said:-
“After the fraud was detected a 5-man panel was set up by the 4th defendant and I was called to appear and I did. I gave evidence before the panel and was cross examined.”
The Report of the panel at the conclusion of its assignment was Exhibit ’10’ before the High Court and it, in brief, contains its findings of the facts of the allegation against the Respondent as well as its recommendations to the appointing authority.
From the record of the procedure adopted and used by the panel in the discharge of its mandate to investigate or enquire into the facts of the allegations against the Respondent it cannot, with respect, be seriously contended and correctly held that the Appellants “up graded or turned” the panel into a court or tribunal to try the Respondent for a criminal offence and to even convict him for the crime. The law is that generally, a body exercising powers which are of merely advisory, deliberative or investigative nature or character or which do not have legal effect until confirmed by another body or which is involved only in the making of a preliminary decision which is subject to approval by the appointing authority, will not normally be held to be acting in a judicial capacity. See Military Governor, Oyo State v. Adekunle (2005) 3 NWLR (912) 294. The mere fact that an administrative panel had invited and heard from the person it was investigating and/or witnesses in respect of the allegation it was to inquire into, would not mean that it had upgraded or turned itself into a court or tribunal. Such a procedure may be quasi judicial adopted in order to ensure compliance with the requirement of the principles of fair hearing in the discharge of its mandate which cannot be equated to the specialized, professional and statutory procedure of a court or tribunal wherein strict observance of the provisions of the Evidence Act was required. Such an administrative panel is required by the law in the discharge of its duty to observe the principles of fair hearing by affording adequate opportunity to the person/s against whom allegations were made, to know and answer to such allegations. In an inquiry or investigation by an administrative panel or body, the hearing can be oral, in writing or both. Since the requirement of the law is that the person against whom an allegation was made must be heard before he can be found to be at fault by the panel. See Hart v. Mil. Gov. Rivers State (1976) 11 SC, 211; Sokwo v. Kpongbo (2003) 2 NWLR (803) 111; Ibori v. Ogboru (2005) 6 NWLR (920) 102; Baba v. N.C.A.T.C. (1991) 5 NWLR (192) 388.
It was not the case of the Respondent before the High Court and in this appeal, that he was denied the opportunity of a hearing and thereby denied fair hearing by the panel in the discharge of its mandate. The complaint and the finding of the High Court is that the panel tried and convicted the Appellant for a crime, which it had no power to do and so said to have usurped the functions of a court. The basis of the complaint by the Respondent and the finding by the High Court on the issue was that the panel in Exhibit 10 said it found the Respondent guilty and the evidence of DW1 under cross-examination set out by the High Court in its judgment at page 171 of the record of the appeal, the Respondent was found guilty in Exhibit ’10’.
However, from the Exhibit ’10’ all that the panel did after a consideration of the facts gathered during its investigation, was to find that the Respondent did not do what he was supposed to have done in checking the vouchers in question and so indicted him for that failure. It was on that basis that the panel made its recommendations, as it was mandated to do in the terms of reference, on the disciplinary actions to be taken against the Respondent. From the Exhibit ’10’, there is nothing to show that the panel tried and convicted the Respondent of any crime whatsoever because all it did was to investigate the allegations against the Respondent, which may contain some features of a criminal offence, and made recommendations which had no legal effect until they were confirmed or accepted by the Appellants that appointed it. Because the recommendations of the panel have no legal effect but subject to being accepted by the Appellants, the Appellants are not in law bound to accept them but have and retain the right and power to either accept or reject all or some of them. Rejection of some or all of the recommendations of the panel cannot give rise, to a cause of action which is redressible in a court of law. Aremo II v. Adekanye (supra); Baba v. N.C.A.T.C. (supra). The use of the word “guilty” by DW1; an administrative officer II, in reference to the finding of the panel in Exh. ’10’ did not translate into support that the panel in fact, tried and convicted the Respondent for a criminal offence. All that the word used by witness means in the con in which it was employed by him, and as is contained in Exh. ’10’ to which the evidence related, is that the panel indicted the Respondent on the facts produced before it since he was at fault of not doing what he was supposed to have done. The witness did not say that the Respondent was tried at all by the panel, but that:-
“It was discovered, at the panel that the plaintiff used random sampling in checking the vouchers. It was now discovered at the panel that random sampling was not good enough, that he should have checked the vouchers line by line. After the panel’s sitting they sent the report, which found the plaintiff guilty”.
See page 141 of the record of the appeal.

This was the evidence he repeated and maintained under cross-examination at page 145 of the record that:-
“The panel deliberated over the matter and found the plaintiff guilty and issued a report – Exh. 10.”

Of course, the primary mandate of the panel was to investigate the allegation against the Respondent, make necessary findings of the facts and then the consequent recommendations arising from such facts to the Appellants for necessary action. That was all that the evidence of DW1 shows the panel to had done in exhibit 10 and nothing more or less.
The law is however well known now, since it is settled, that only a court of law or tribunal set up by law, has the judicial power and authority to try a person accused of the commission of a criminal offence or a crime. That an administrative body by whatever name called, has no such power and authority in the conduct of an administrative, executive or quasi-judicial investigations of allegations made against any person. Where a person is alleged to have committed a crime, acts or conduct/s which amount to the commission of a criminal offence in law, then such an allegation can only be laid before and tried by a court of law. Judicial authorities on this trite position of the law are many including the ones cited by the learned counsel for the Respondent and the High Court in its judgment. Others are Baba v. N.C.A.T.C. (supra); Biishi v. JSC (1991) 6 NWLR (197) 231; University of Uyo v. Essel (2006) ALL FWLR (315) 80; Egbuniwe v. F.G.N. (2010) 2 NWLR (1178) 348.
The facts and evidence before the High Court did not show or even suggest that the Respondent was tried for a crime by the panel set up by the Appellants to warrant or support the finding that the Appellants had upgraded or turned the panel it set up to investigate the allegation against the Respondent, to a court or tribunal which tried and convicted him of the criminal offence of fraud.
For the above reasons, I find that there was no evidence before the High Court to support the finding that the Appellants did not act within the scope or colour of their public duties or offices in setting up the panel that investigated the allegation against the Respondent. I also find and hold that there was no evidence before that court to support its findings that the Appellants had upgraded or turned the said panel to a court or tribunal and that they tried the Respondent for a criminal offence, thereby usurping the functions of a court of law. In my firm view, both the Appellants and the panel they set up, acted within the “confines of the law and constitution” as well as the scope and colour of the respective duties of their public offices in the disciplinary action taken against the Respondent over the allegation against him. For that reason, the provisions of section 1(1) of Cap. 40 on the limitation of the action by the Respondent in respect of his dismissal from the services of the 4th Appellant, avail the Appellants. They are entitled to the protection provided therein and because the action by the Respondent was admittedly initiated or commenced by him outside and after the expiration of the three (3) months stipulated or prescribed and limited for the action to lie, the action is incompetent. The High Court was thereby robbed or deprived of the requisite statutory jurisdiction to adjudicate over it. That court therefore erred in law to have held that the action was competent and to have adjudicated over it.
In the result, I resolve the issues in favour of the Appellants and consequently strike out the Respondent’s action before the High Court for being statute barred by virtue of the provisions of Section 1(1) of Cap. 40.
Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA.
The Appellant in the lower court had put up a defence that the suit was statute-barred having been brought more than three months after the cause of action arose. The lower court overruled the Defendant now Appellant.
The limitation clause of POPA stipulated three months. Immediately the suit was instituted, the Appellants put up their defence, that the suit is statute-barred. This means that the jurisdiction of the court is challenged.
The question of jurisdiction is very fundamental that the court should determine before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amounts to a nullity. Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) pg. 527. Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) pg.623.

It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted.
When the limitation period of three months expired, the suit became statute-barred.
It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation clause in the POPA had elapsed.
Sadly, the Respondent has a cause of action but nowhere to litigate it.
See Adeosun v. Jibesin (2001) 4 WRN pg.106.
The court cannot extend the limitation period in a statute except the statute makes provision for extension of time. Akinwoye v. MILAD, Ondo State (1997) 1 NWLR (pt.483) pg.564.
Once a suit is statute-barred, the only thing the court can do in the circumstance is to strike out the suit.
For this and the more comprehensive reasoning of my brother in the lead judgment, I also allow this appeal. I abide by all the consequential orders contained in the lead judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned brother, Mohammed Lawal Garba, JCA. The issues raised in this appeal have been completely addressed by my learned brother. I will only make a few comments in support.
The issues raised for determination border on the jurisdiction of a court when an action is alleged to be statute barred.
The period of limitation begins to run from the date on which the cause of action accrued. Therefore when dealing with a limitation statute, it is always necessary to ascertain the exact date on which the cause of action arose. See: Eboigbe v. N.N.P.C. (1994) 5 N.W.L.R. (Part 347) 649 at 663; Aremo II v. Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132 – 2133.

Appearances

Appellants’ Counsel saved but absentFor Appellant

AND

Comfort GladstoneFor Respondent