MR. IDONGESIT UDOM v. NATIONAL BUSINESS AND TECHNICAL EXAMINATION BOARD & ANOR (2014)

MR. IDONGESIT UDOM v. NATIONAL BUSINESS AND TECHNICAL EXAMINATION BOARD & ANOR

(2014)LCN/7083(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 2nd day of April, 2014

CA/B/132/2012

RATIO

STATUTE OF LIMITATION: IMPLICATION OF ACTION INSTITUTED AFTER THE TIME PRESCRIBED BY STATUTE

It’s a trite principle, that where a statute provides for the filing of an action within a limited time frame, no proceeding shall be instituted after the expiration of the statutory period. Thus, any action instituted outside the statutory commencement period is deemed extinguished or statute-barred.

In the case of IBRAHIM VS. KADUNA STATE JUDICIAL SERVICE COMMISSION (Supra), it was aptly held by the Supreme Court, thus:

The several principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the action would have been extinguished by such law. Per lguh, JSC @ 19. See also MICHAEL OBIEFUNA VS. OKOYE (1961) 1 All NLR 357; EGBE VS. ADEFARASIN (No.2) (1985) 1 NWLR (Pt.3) 549; FADARE VS AG. OYO STATE (1982) NSCC 643.

However, for the provision of Section 2 (a) of the Public Officers (Protection) Act (Supra) to effectively avail any person, there are two conditions that must be satisfied, viz:

(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning.

(ii) The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority, or in respect of an alleged neglect, or default of the execution of any such law, duty or authority. See IBRAHIM VS. KADUNA STATE JSC (Supra) per Iguh, JSC @ 20. See also JOHN EKEOGU VS. ELIZABETH ALIRI (1990) 1 NWLR (pt.126) 345. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

MR. IDONGESIT UDOM – Appellant(s)

AND

1. NATIONAL BUSINESS AND TECHNICAL EXAMINATION BOARD (NABTEB)

2. REGISTRAR, CHIEF EXECUTIVE (NABTEB) – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of the Federal High Court, Benin Judicial Division, holden at Benin City on March 5, 2010 in Suit No. FHC/B/CS/75/2006. By the ruling in question, the Lower Court, coram, M. B. Idris, J; dismissed the Appellant’s Suit for lack of jurisdiction. Thus, consequent upon the leave granted thereto, the Appellant filed the notice of appeal thereof on March 12, 2010 against the said ruling.

BACKGROUND FACTS:

The circumstances surrounding the appeal are not at all far-fetched. They are gleanable from the records of appeal. On 02/5/2006, the Appellant instituted the said suit in the Lower Court vide a Writ of Summons thereby seeking some declaratory reliefs against the Respondents. By paragraph 50 of the statement of claim thereof, filed along with the Writ of Summons, the Appellant has sought against the Respondents, the following reliefs:

(a) A declaration that (h)is termination was unlawful, wrongful and against regulations governing the service of his appointment.

(b) An order of reinstatement of his appointment.

(d) General damages of N2 million against the defendants jointly and severally.

OR IN THE ALTERNATIVE

A declaration that the plaintiff is entitled to his severance allowance pension scheme in accordance with the term in his letter of appointment and the staff pension scheme.

By the joint statement of defence thereof dated 14/12/06, the Respondents denied the Appellant’s claim, and thereby urged upon the Lower Court to accordingly – “dismiss the Plaintiffs claim in its entirety as same is speculative, frivolous, baseless and unmeritorious.”

On 12/01/07, the Respondents filed in the court below a motion on notice praying for the following relief:

An order of this Honorable Court setting down the points of law raised in paragraph 17 (a) (b) (c) and (d) in the Defendants’ Joint Statement of Defence and also as hereinafter set out in the schedule of this motion.

AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

SCHEDULE

(a) This suit is statute barred; the suit was not commenced within three months after the cause of action arose, contrary to the provisions of the public officers protection Act.

(b) The subject matter of this suit is an alleged Simple Breach of Contract. Consequently, this Honourable

Court lacks the jurisdiction under Section 251 of the 1999 Constitution to entertain it.

ALTERNATIVELY:

The 2nd Defendant is the Agent, a known principal and can therefore not be sued in an action for Breach of Contract.

The motion in question was argued by the learned counsel to the respective parties on February 8th & 18th, 2010. Whereupon the court delivered the vexed ruling on 05/3/10 to the conclusive effect, thus:

I therefore hold that the provisions of section 2 of the Public officers Protection Act is applicable to this suit.

It is therefore clear that the plaintiffs suit is caught by the provisions of the public officer protection Act, and is therefore statute barred….

Having resolved the first and third issues in favour of the defendants the proper order to make is one of dismissed and not a striking out. This matter is therefore hereby dismissed, N10,000 cost is awarded in favour of the defendants.

As alluded to above, consequent upon the leave granted thereto by this court, the Appellant filed the notice of appeal thereof on 12/3/12. See pages 333 to 336 of the Record. The said notice of appeal is predicated upon a total of four grounds, viz:

Ground 1 – ERROR IN LAW

The learned trial judge erred in law when he proceeded to address the issue of statute bar in his Ruling which the Respondent withdrew and judge accepted without giving the parties opportunities to address him on it.

PARTICULARS OF ERROR

(1) The Respondent who raised the issue of statute bar in his preliminary objection withdrew that issue before the Ruling and the court accepted his withdrawal.

(2) The learned trial judge never asked the parties to address him on whether he can still consider the issue before his Ruling when he raised the issue suo motu.

(3) As at the time of the learned trial judge Ruling, there was no prayer on statute bar before the court, as the Respondent had already withdrawn that prayer and the court accepted the withdrawal.

Ground 2 – ERROR IN LAW

The learned trial judge erred in law when he held that S.2 (a) of the Public Officers’ Protection Act applies to Appellant’s case which is based on breach of contract.

Ground 3 – MISDIRECTION IN LAW

The learned trial judge misdirected himself in law when he held thus “it is now settled that in determining

jurisdiction, the Plaintiffs statement of claim is a dependable determinant, in the long train of determinations, where it has been filed. This is done by carrying out a microscopic examination of the process.

Ground 4 – ERROR IN LAW

The learned trial Judge erred in law when he held that the 2nd Defendant is not a necessary party to this suit.

The Appellant’s brief of argument was settled by A. E. Okposin, Esq. and duly filed on 13/7/12. The Respondents’ brief was settled by Chief Ferdinand O. Orbih, SAN and F. E. Ebuehi, Esq. It was deemed properly filed on 23/9/13.

On 21/01/14, when the appeal lastly came up for hearing, the learned counsel adopted the submissions contained in the respective briefs of argument thereof, thus resulting in reserving the Judgment for delivery. Most particularly, at page 3 of the said brief thereof, the Appellant has raised two issues for determination, to wit:

I. Whether the learned trial judge was right to have raised the issue of statute bar suo motu and considered it in his ruling when the Respondents who raised the issue had withdrawn it before the ruling and the court accepted the withdrawal.

II. Whether the learned trial judge was right to have held that the 2nd Defendant was not a necessary party to this Suit.

Instructively, the Appellant’s brief spans a total of ten pages. The Issue No.1 was distilled from grounds 1, 2 & 3 of the notice of appeal and canvassed at pages 3 – 8 of the said brief. The learned counsel submitted, inter alia, that in addition to paragraph 17 (a) to (d) of the Statement of Defence thereof the Respondents also filed a motion on notice whereupon they sought to set down for hearing the point of law, namely –

(a) This Suit is statute barred, the Suit was not commenced within three months after the cause of action arose, contrary to the provisions of the Public Officers Protection Act.

Further submitted, that the respective learned counsel proffered arguments regarding the vexed preliminary objection. However, the Respondents counsel applied to withdraw the preliminary objection which was duly allowed by the Lower Court. See pages 237 -241 of the Record. However, unfortunately the Lower Court suo motu gave ruling on the said issue No. (a) which had been withdrawn. That, the issue was raised suo motu in the ruling without allowing the counsel to the respective parties to address the Lower Court thereon. Allegedly, this has amounted to a denial of fair hearing. See LEADERS OF CO. LTD VS. BAMAIYI (2011) Vol. 199 LRCN 185 @ 200 JJ & 201 AF.

It was contended, that the issue taken suo motu by the Lower Court was very substantial, and has led to a miscarriage of justice against the Appellant. Thus, should lead to a reversal of the decision so reached. Also contended that, the case of OSUN STATE GOVT. VS. DALAMI NIG. LTD (2007) Vol. 148 LRCN 1311, cited by the Appellant does not support the distinction the Lower Court tried to make between simple and specific contract. The pronouncement made on the issue in the ruling was made by the Lower Court without jurisdiction, as jurisdiction is conferred by the claim of parties. The Lower Court has allegedly acted as a charitable organization to give what has not been asked for by parties. See EKPENYONG VS. NYON (1975) 2 SC 77; JERIC NIG. LTD VS. UBN PLC (2000) 82 LRCN 3259 @ 3284 H.

The Appellant argued that the Public Officers Protection Act does not apply where the act of termination of appointment was actuated by malice or acts done in abuse of office and with no resemblance of legal justification. See DR MATHIAS OKO OFFOBA CHE VS. OGOJA LOCAL GOVT. AND ANOR (2000) FWLR 1051 @ 1067 FH.

Conclusively, it was postulated that the action of the Lower Court in raising the issue already withdrawn suo motu without giving the parties the opportunity of addressing it before ruling thereon, has amounted to a denial of fair hearing to the Appellant. See KAJA VS TARABA STATE GOVT. (2003) FWLR (Pt.178) 1036 @ 1051 G – H. The court is urged to so hold.

On Issue No. 2, it was submitted by the Appellant that the ruling of the Lower Court was erroneous because as the Chief Executive of the 1st Respondent, the 2nd Respondent is a necessary party. He’s deemed to have power to sue and be sued. See CARLEN (NIG) LTD VS. UNIJOS (1994) 1 NWLR (Pt. 323) 631.

In conclusion, the court has been urged upon to allow the appeal, overturn the decision of the Lower Court and remit the case to the said court for trial on the merits by another Judge.

On the other hand, the Respondents’ brief spans a total of 15 pages. At page 3 of the said brief, two issues have been distilled from the four grounds of appeal, viz:

1. Whether or not the learned trial judge was right to strike out this suit for want of jurisdiction on part of

the Honourable court to entertain it, on the ground that it was statute barred having regard to the facts and circumstances of the Suit.

2. Whether or not the learned trial Judge was right when he held that the 2nd Respondent was not a necessary party in the Suit.

Issue No. 1 has been canvassed at pages 3 – 11 of the Respondents’ brief. In a nutshell, it was submitted that the Appellant’s argument that the Lower Court raised suo motu the issue of the suit being statute barred is self contradictory. It would be inconsistent for the Appellant to maintain, on the one hand, that the issue of the Suit being statute barred was addressed upon both counsel, and on the other hand, that the issue was raised suo motu. Reference was made to page 241, lines 13 to 16 of the Record, to the effect that the Respondents counsel’s application (seeking to withdraw the objection grounded on the issue of the suit being statute-barred) was not ruled upon by the Lower Court immediately. However, the issue of withdrawal of the objection was ruled upon by the court below at pages 267 to 268 of the Record.

It was contended, that it is clear from the record that the Lower Court refused the Respondents’ counsel’s application to withdraw the said objection having regard to the Public Officers (Protection) Act. And that counsel cannot by consent confer jurisdiction on the court, where there is none.

The court is urged to uphold the findings and conclusion of the court below at pages 267 to 268 of the Record.

Further submitted, that the Appellant’s right to fair hearing was not breached because he had every opportunity to address the Lower Court on whether or not the suit was statute-barred, having regard to the provision of Section 2 of the Public Officers (Protection) Act.

The court is urged to uphold the reasoning and conclusion of the court below, to the effect that the suit was caught by the said provisions of the Public Officers (Protection) Act. See GYANG VS. NSC (2002) 15 NWLR (Pt.791) 454.

It was argued, that the reliance on OSUN STATE GOVT VS. DALAMI NIG. LTD (2007) Vol. 148 LRCN 1311 by the Appellants is misconceived. As that case was not [in respect of] an action for breach of contract by a civil servant or employee of a government parastatal. On the contrary, it was an action for breach of simple contract.

Paragraphs 4.18 to 4.19 of the Appellant’s brief allegedly raises fresh issue, to the effect that the Public Officers (Protection) Act does not apply where the act of termination of appointment was actuated by malice or acts done in abuse of office. Thus, the failure to obtain leave of court before raising the issue is fatal to the Appellant’s cause. See AREMU VS. UNILORIN (2008) All FWLR (Pt.411) 941 @ 954 – 955. The court is urged to thus discountenance the said fresh issue.

Alternatively, it was submitted, that as long as the Public officer acts in his usual function of his office, whether correctly or wrongfully, he is protected by section 2 (a) of the Public officers (Protection) Act. See SULGRAVE vs. FRN (2012) 17 NWLR (Pt.1329) 309 @ 335 D – F.

Accordingly, the court is urged to resolve issue No. 1 in favour of the Respondents, against the Appellant.

On issue No 2, the learned counsel cited the case of KALU vs. UZOR (2004) 12 NWLR (Pt.886) 1 @ 36, regarding the definition of necessary parties. In the instant case, the 2nd Respondent is alleged to be at best the agent of a known principal who is not triable in an action for breach of contract. See UBA PLC vs. OGUNDOKUN (2009) 6 NWLR (Pt.1138) 450.

It is contended, that the case of CARLEN (NIG) LTD VS. UNIJOS (1994) 1 NWLR (Pt.323) 637 is totally irrelevant to the issue under consideration. As there is nowhere in the vexed judgment the rower court holds that the 2nd Respondent cannot sue or be sued. It was the view of the Lower Court that the 2nd Respondent was not a necessary party. In conclusion, the court is urged to dismiss the appeal as one that is totally unmeritorious.

I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal. I am appreciative of the fact that the two issues raised by the learned counsel in the respective briefs thereof are not mutually exclusive. Therefore, I have deemed it expedient to adopt the two issues formulated by the Appellant at page 3 of the brief thereof for the determination of the appeal.

ISSUE NO. 1

The first issue raises the question of whether or not the Lower Court was right to have raised the issue of statute bar, suo motu, and considered it in the vexed ruling after the Respondents had withdrawn the objection thereof.

I think there is a need to reiterate the trite fundamental principle, that a court must not raise an issue or point, suo motu, without according the respective parties concerned the opportunity of hearing. And the wisdom inherent in that trite fundamental principle is not farfetched. As aptly held by the Supreme Court –

“This is to avoid being accused of descending into the arena.” See LEADERS OF CO. LTD VS. BAMAIYI (2011) 199 LRCN 185 @ 200 paragraphs EEJJ per Fabiyi, JSC.

Thus, flowing from the foregoing trite principle, where a court raises an issue suo motu without according the respective parties the opportunity to address it thereon, any decision thereby reached would tantamount to a nullity. Thus, the said decision is liable to be set aside on appeal. See LEADERS OF CO. LTD VS. BAMAIYI (Supra) @ 202 paragraph F.

Undoubtedly, the principle against hearing issues suo motu without according the respective parties an opportunity of hearing, is predicated upon the fundamental right of fair hearing cherishingly enshrined in the constitution of the Federal Republic of Nigeria, 1999 as amended. See most especially Section 36 (1) of the Constitution (Supra) thus:

36 (1). In the determination of his Civil Rights and Obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartially.

It is instructive to reiterate that when the case came up on 08/02/10, the learned counsel to the respective parties, Orbih Esq. and Okposin Esq. addressed the court on the motion on notice, dated 12/01/07. At the conclusion of the submission thereof, Orbih Esq. urged upon the Lower Court –

“to grant the reliefs sought in their application and struck (sic) out this suit for want of jurisdiction.” See pages 237 to 239 of the Record of Appeal.

On the part thereof, Okposin Esq. concluded the submission thereof by urging the court –

“to dismiss the preliminary objection of the plaintiffs.”

See pages 239 to 240 of the Record.

Whereupon, Orbih Esq. was recorded to have informed the court thus:

“We want to reply but there is something we are lacking.”

Consequent upon which, the court adjourned the matter to 18/2/10 for reply. See page 240 of the Record.

However, on the said 18/2/10, when the matter came up for reply, the following scenario unfolded –

ORBIH ESQ: We concede that the POPA does not apply for cases of breach of simple contract. We withdraw that anus of our objection to the suit, but urge the court to bring the full right of the constitution to hear on the matter.

The section does not allow this court to entertain matters boarded on breaching simple contract. See PAUL ENOKORO VS. GOVT. RIVERS STATE & ANOR (1991) 4 NWLR 322 AT 337 para C – D, F paras A – E. on the power of the 2nd defendant to sue and be sued. See NABTEB ACT and I submit that the right to sue and be sued is vested in the 1st defendant. See S.1 of the statute.

Thus, it was in consequence of the foregoing development that the Lower Court reserved the vexed ruling to the 05/3/10 for delivery.

The vexed ruling of the Lower Court spans a total of 89 pages. Specifically, it’s contained at pages 243 – 332 of the record. In the course of the oral submission thereof on 08/02/10, regarding the motion, Orbih Esq. raised three issues for determination, viz:

(1)Whether or not the action is statute barred having regard to S.2 (a) of the POPACT.

(2) Whether or not this court posses the requisite jurisdiction to hear and determine this action having regard to s.251 of the 1999 Constitution.

(3) Whether this action ought not to be struck out against the 1st defendant for means that he is not a legal person that can sue and be sued and being the agent of a disclosed principal whether he can be sued.

Particularly, the Issue No. 1 was canvassed by Orbih Esq. at pages 238-239 of the Record, to the conclusive effect that the suit was statute barred, thus, “the (lower) court lacks jurisdiction to hear and determine this matter”.

In response thereto, Okposin Esq. was recorded to have submitted thus:

Okposin Esq: in opposition, we filed a 14th (sic) paragraphs counter Affidavit dated 21/2/07 and a further counter-Affidavit dated 29/2/08. We shall take the issue raised by the applicant seriatim.

ISSUE 1: I submit that this case is not statute barred. The crux of this suit is a breaching contract of employment. It is trite law that the POPA does not apply to act aim for breaching contract.

Alternatively, we submit that under NABTEB Act S.11, provides for appeals by staff against dismissal… see item 7 of the Regulations. In construing the statute of limitation, regards had to the period on appeal is redeemed with. See EXHIBIT XX1 & XX5. Such period went on until XX5 was issued on 5/2/2006. It is, within 3 months.

As alluded to above, on 18/2/10, when the motion came up for reply to Okposin’s submission, Orbih Esq. submitted, inter alia, thus:

ORBIH ESQ; We concede that the POPA does not apply for cases of breach of simple contract. We withdraw that anus of our objection to the suit, but urge the court to bring the full right of the constitution to hear (sic) on the matter. The section does not allow this court to entertain matters boarded on breaching simple contract.

However, the fact that Orbih Esq. had purportedly withdrawn the objection thereof regarding the issue of statute bar (Issue No.1), notwithstanding. The Lower Court, in its own wisdom, discountenanced the purported withdrawal, and proceeded to determine all the three issues in question. Most particularly, at pages 267, lines 1 – 11, and 268, lines 3 – 5, of the Record, the court below observed thus:

I must mention that although in their respective submissions, counsel for the plaintiff had argued that the provisions of the Public Officers Protection Act did not apply to contracts, and counsel for the defendants had conceded that point and had withdrawn that arm of his objection to the suit, I shall nevertheless proceed and address that issue in this ruling. This is so because it is now settled that parties cannot by any guise give jurisdiction to courts where none exists. In short, jurisdiction is not amenable as a gift from parties to the courts. Also, parties cannot by their private contract or agreement collude to wrestle away the jurisdiction properly rendered to a court.

…In my view therefore, the issues for determination have been laid down by the parties and I shall adopt them as issue and will now proceed to address them seriatim.

I think, I cannot agree more with the above view held by the court below. In my considered view, the Lower Court was absolutely right in discountenancing the withdrawal of the said objection of the Defendant’s counsel in the eleventh hour. Arguably, the withdrawal of the objection by the learned counsel was an afterthought and highly preposterous to say the least. As copiously alluded to above, the issue No. 1 had earlier been argued by the two learned counsel. Thus, it would not be correct for the Appellant’s learned counsel to allege, as he did, that the issue of statute bar was raised by the court below suo motu. As clearly borne out of the record, the Appellant’s right to fair hearing had not in any manner been breached by the court below. This is so because he was accorded every opportunity to canvass his argument regarding the vexed issue of whether or not the suit was statute-barred, with particular regard to the provision of Section 2 of the Public Officers (Protection) Act (Supra).

The Appellant’s Amended Statement of Claim, dated 27/9/07 is contained at pages 116 to 126 of the Record. By paragraph 54 of the said Amended Statement of Claim thereof, the Appellant has sought, against the Respondents, the following reliefs:

a. A declaration that his termination was unlawful, wrongful and against Regulations governing the service of his appointment.

b. An order for reinstatement of his appointment.

c. Payment of his salary from 15th July 2004 to date.

d. General damages of N2 million against the defendants jointly and severally.

e. An order that the 1st Defendant publish a retraction and an apology to him in both local and national newspapers.

A critical, albeit dispassionate, perusal of the entirety of the 54 paragraphed Amended Statement of Claim in question would reveal that the nature of the claim of the Appellant borders on termination of appointment thereof by the Respondents. By virtue of paragraphs 1, 2, 3, 6, 43, 44 & 45 of the said Amended Statement of Claim thereof, the Appellant has averred thus:

1. The Plaintiff was a staff of National Business and Technical Examinations Board (NABTEB) and until his termination, he was Test Administration Officer 1 serving in the National headquarters, Ikpoba Hill,

Benin City.

2. the 1st Defendant is o Board established under Decree No. 70 of 1993 to conduct examinations leading to the award of the National Technical Certificate and National Business Certificate among others with notional Headquarters in Benin City, within the jurisdiction of this court.

3. The 2nd defendant is the Registrar/Chief Accounting Officer and Chief Executive of the first Defendant.

6. The Plaintiff avers that on the 5th of January 2000, his appointment was confirmed. The Plaintiff pleads and shall rely on confirmation of appointment letter Ref. No. BTEB/PM/9/SP.158 of 5th January 2000, photocopy is herewith attached as Exh, ‘B’.

43. The Plaintiff avers that right from when he enrolled for the PH. D Programme, his Acting Head of Department has never liked him as he keeps expressing the fear that he may be promoted to boss him after the completion of his PH.D. Programme.

44. The Plaintiff avers that he was surprised when few days later he was served with letter of termination,

The Plaintiff pleads and shall rely on the letter of termination at the Trial. A copy is herewith attached as Exh. ‘P’.

45. The Plaintiff avers that his termination of appointment was actuated by malice and not in accordance with the laid down rules governing the service of Senior Staff. The Plaintiff pleads and shall rely on the Regulations Governing the Service of Senior Staff and particularly section 6 and section 7 sub rules 5 of the Regulations. Photocopy is herewith attached as Exh. ‘Q’.

It is settled law, that public officers are not necessarily immune from Suits under the Public Officer Protection Act. However, the law is that such a suit against a public officer must be instituted within a stipulated time limit or period, otherwise it becomes stale or statute-barred. See THE MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR VS. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (pt.1208) 26 SC; 2010 LPELR – 3189 (SC) wherein the Supreme Court held thus:

It is not the law that public officers are immune from suits under the Public Officer Protection Act but that suits against them must be instituted within a stated period otherwise they become stale. In the circumstance it is necessary for the facts relevant to the invocation of that Act to be provided in the particulars of the appeal to make same apparent. Per Onnoghen, JSC @ 39 paragraphs B-D.

At page 269, second paragraph of the Record, the court below found to the effect, inter alia, thus:

It is not in dispute that the plaintiffs appointment was terminated on 15th July, 2004, and this action challenging the said termination was filed in the Registry of this court on the 2nd day of May 2006, a period more than 1 year after the act being complained about. It is therefore, clear that this action was instituted outside of the time limit prescribed by the Officers Protection Law.

Under Section 2 of the Public Officers (Protection) Act (Supra), it has been provided thus:

2. Where any action prosecution or other provision is commenced against any person for an act done in pursuance or execution or intended execution of any Act of Law or of any public duty or authority, or in respect of alleged neglect or default in the execution of any such Act, Law duty of authority, the following provisions shall have effect –

a. The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within the three months next after the act, neglect or default complained of in case of as continuance of damage or injury, within three months next after the ceasing thereof.

The provision of Section 2 (a) of the Public Officers (Protection) Act (Supra) has been a subject of far-reaching judicial interpretations.

In the case of IBRAHIM VS. KADUNA STATE JUDICIAL SERVICE COMMISSION (Supra), it was aptly held by the Supreme Court, thus:

However, for the provision of Section 2 (a) of the Public Officers (Protection) Act (Supra) to effectively avail any person, there are two conditions that must be satisfied, viz:

(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning.

Regarding the condition No (i) above, there is no dispute as to whether the 1st and 2nd Respondents are public officers within the purview of Section 2 of the Public Officers (Protection) Act (Supra). Most particularly, the status of the 1st Respondent is not in doubt. The 1st Respondent is a creation of the NABTEB Act (Supra). By virtue of Section 1 of the said Act, it’s duly provided thus:

1. Establishment of the National Business and Technical Examinations Board, etc. There is hereby established a body to be known as the National Business and Technical Examinations Board (in this Act referred to as “the Board”) which shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.

It is a statutory body, a corporation aggregate with a legal personality capable of suing and being sued. See IBRAHIM VS. KS JSC (Supra) wherein the Apex Court aptly reiterated the trite principle that-

It is beyond dispute that the word “person” when used in a legal parlance, such as in a legislation or statute connotes both a “natural person”, that is to say, a human being and an “artificial person” such as corporation, sole or public bodies corporate. See also ROYAL MAIL STEAM PACKET CO. VS. IBRAHIM (1877) 2 AC 381 @ 386 (PC); LESKE VS. SA REAL ESTATE INV. CO. LTD (1930) 45 CLR 22.

Afortiori, the aforementioned judicial interpretation of the term ‘person’ is in line with the provisions of Sections 3 and 18 of the Interpretation Act which are to the effect thus:

“Person including anybody of persons corporate or incorporote.”

In my considered view, to hold otherwise would tantamount to a sheer absurdity. I am fortified in that view by the aptly authoritative decision of the Supreme Court to the effect thus:

I have repeatedly stressed that all the Court of Appeal cases which establish that Public Officers (Protection) Law only applies to protect public officers as individuals or natural persons and not otherwise erroneously arrived at those decisions from the obiter dictum in the Okewale case. That obiter dictum, by no means’ forms any part of ratio decidendi in the case. In my view, the set of cases of the Court of Appeal which purports to have applied the decision in the Okewale case were decided per incuriam and ought not be allowed to stand. See IBRAHIM VS. KS JSC (Supra) per lguh, JSC @ 50.

In the instant case, it is obvious that the action was instituted outside the statutory time limit of three months allowed by the provision of Section 2 (a) of the Public Officers (Protection) Act (Supra). In my view, the Lower Court was right in declining jurisdiction in the circumstance. As the Appellant failed to file the action against the Respondents within the period stipulated by the law, the Suit thereof, was statute-barred. As authoritatively held by the Supreme Court –

“If the action was barred by statute, no amount of resort to the merits of Appellant’s contention will serve

to keep the action in being.” See EGBE VS. ADEFARASIN (No.2) (1982) 1 NWLR (Pt.47) 1 @ 13. See also JOHN EKEOGU VS ALIRI (1991) LPELR 1079 (SC); AROYAME VS. THE GOVERNOR OF EDO STATE (2007) LPELR – 8770; NWAKERE VS. ADEWUNMI (1967) NMLR 4s @ 49; ATIYAYE VS. PERM. SEC. BORNU STATE (1990) 1 NWLR (Pt.129) @ 739.

I have deemed it expedient to reiterate that the principles enunciated in each of the foregoing authorities are to the combined effect that where a public officer acted within the ambit and colour of his office, he can only loose protection of limitation law (statute-bar) if he is sued within three months of the act, neglect or default complained of.

The immunity or protection accorded a public officer under Section 2 (a) of the Public Officers (Protection) Act (Supra) shall apply where the public officer concerned has acted within the confines of the statutory duty thereof. See IBRAHIM VS KS JSC (1998) 14 NWLR (Pt.584) 1 @ 32 paragraphs B – F, per Iguh, JSC thus:

Once they (public officers) step outside the bounds of their public authority and are acting outside the colour of their statutory or constitutional duty, they automatically lose the protection of the law.

In other words, a public officer can be sued outside the limitation period of 3 months it at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty. Brackets added.

Hence, the position of the Apex Court is unequivocally clear. That a public officer can be sued outside the 3 months limitation period if at all times material to the act complained of, he acted outside the ambit and colour of his office or constitutional duty. See ADEYEMI VS. NIG TELECOMS PLC (2009) LPELR – 4982 (CA).

Instructively, some laid down judicial principles have recognised that in special circumstances and cases, fraud where established would provide a formidable exception to the general rule that time begins to run from the date when the cause of action accrued for the purpose of a limitation law (statute-bar).

See AREMO II ADEKANYE (2004) All FWLR (Pt.224) 211 @ 213; ADMINISTRATORS/EXECUTORS VS. EKESPIFF (2009) 2 NS QLR 364; OGOH VS. ENPEE LTD (2004) 7 NWLR (Pt.903) 44; DUZU VS. YUNUSA (2010) LPELR – 8989 (CA) @ 47 – 48 paragraphs F – F per Garba, JCA.

One other exception is where the public officer concerned is proved to have acted in abuse of his office with no semblance of legal justification whatsoever. See the case of JOHN EKEOGU VS. ELIABETH ALIRI wherein the Apex Court aptly held, inter alia, thus:

The law (i.e. Public Officers Protection Law) is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office with no semblance of legal justification. See (1991) 3 SC NJ 45; (1991) 3 SC 58; (1991) LPELR – 1079 (SC) per Saidu Kawa, JSC (of blessed memory).

In the instant case, it’s evident from the Record that by virtue of the Appellant’s pleading, most especially paragraphs 45, 52 & 53 of the Amended Statement of Claim, the termination of the appointment thereof was allegedly –

“actuated by malice and not in accordance with the laid down rules governing the service of senior staff…”

and that the Appellant –

“has never at anytime been accused of examination malpractices by the Defendants before his termination.”

In my considered view, the Appellant’s claim has a semblance of issue of abuse of office raised against the Respondents within the purview of the authoritative decision of the Supreme Court in EKEOGU VS. ALIRI (Supra), et al.

Thus, the court ought to have allowed the suit to proceed to trial to determine the veracity of the Appellant’s pleading. As pointed out above, the law is trite, that the Public Officers (Protection) Act was designed objectively to protect the officer who acts in good faith and does not apply to acts done in abuse of office, with no semblance of legal justification whatsoever. See EKEOGU VS. ALIRI (Supra) per Kawu JSC (of blessed memory) @ 19 paragraphs F – G.

Thus, in view of the foregoing postulations, there is every cogent reason for me to hold that the first issue ought to be, and same is hereby resolved in favour of the Appellant.

ISSUE NO. 2

The second and last issue raises the question of whether or not the court below was right to have held that the 2nd Respondent was not a necessary party. It is distilled from ground 4 of the notice of appeal.

In the course of the submission on the issue, the Appellant’s learned counsel alluded to the finding of the court below at page 285 lines 7 – 8 of the Record, to the following effect –

“I am of the view that the 2nd defendant is not a necessary party to this suit, the 2nd defendant is at best, a necessary witness.”

The above said finding of the court below is arguably a vindication of the 2nd Respondents’ averment in paragraph 17 (c) and (d) of the Statement of Defence at page 85 of the Record to the effect thus:

17….

(d) The 2nd Defendant is the Agent of a known principal and can therefore not be sued in an action for Breach of Contract.

The 2nd Respondent is indeed a creation of National Business and Technical Examinations Board Act CAP N12 Laws of the Federation of Nigeria, 2004 as amended. It is provided under Section 6 of NABTEB Act (Supra) thus:

(1) The President shall on the recommendation of the Minister appoint for the Board a Registrar who shall have appropriate qualifications.

(2)The Registrar shall be the chief executive of the Board and shall be responsible for the execution of the policy of the Board, and the day-to-day administration of the affairs of the Board subject to the general control of the Board.

(3)The Registrar shall hold office in the first instance for a period of four years and shall be eligible for reappointment for one further term of four years and no more.

(4) Subject to this Section, the Registrar shall hold office on such terms as to emoluments and otherwise as may be specified in his letter of appointment and as may, from time to time be approved by the President.

By virtue of Section 2 of the Act (Supra), the membership of the 1st Respondent shall consist of the chairman and 13 other members, including the Registrar of the Board (the 2nd Respondent).

Inarguably, the Act has not expressly conferred upon the 2nd Respondent a right to sue or be sued as unequivocally accorded the 1st Respondent under Section 1 (Supra). However, considering the fundamental functions, powers, duties and responsibilities expressly conferred upon the 2nd Respondent by the Act, the holder of that office is deemed to have been duly imbibed with the power to sue and be sued.

My above view is predicated on the well settled principle, that wherein a statute, the legislature has expressly created a body or thing with functions and powers conferred thereupon to own property, or to employ servants, or engage in any act likely to inflict injury on any person or thing, then it must be implied that the legislature has given it the power to sue or be sued in the name thereof.

See CARLAN (NIG.) LTD VS UNIJOS (1994) 1 NWLR (Pt. 323) 63, @ 658 paragraphs C – E, per Ogundare JSC (of blessed memory). See also THOMAS VS. LOCAL GOVT SERVICE BOARD (1965) 1 NMLR 310; THE PROVOST ALVAN IKOKU COLLEGE OF EDUCATION VS. AMUNEKE (1991) 9 NWLR (Pt.213) 49; WILLIS & ANOR VS. ASSOCIATION OF UNIVS. OF THE BRITISH COMMONWEALTH (1964) 2 All ER 39, @ 42 per Lord Denning MR.

In the case of CARLEN (NIG) LTD VS. UNIJOS (Supra), most particularly, the Apex Court was recorded to have aptly held, inter alia, thus –

The University of Jos Act has not expressly conferred on the Council of the University or the Vice-Chancellor such of right to sue or be sued eo nomine. If there be such right or obligation, it can only be derived by implication from the Act. Per Ogundare, JSC (of blessed memory) @ 658 paragraphs F-H.

In the instant case, by virtue of NABTEB (Supra), the 2nd Respondent is conferred with the overlord status of being the Chief Executive of the 1st Respondent. Thus, having amply considered the fundamental nature of the functions, powers, responsibilities and obligations conferred upon the 2nd Respondent e.g. the power to execute, the far-reaching policy and the day-to-day administration of the affairs of the 1st Respondent, I cannot but hold the view that in the exercising of such overwhelming powers, functions, responsibilities and obligations, the rights of third parties would necessarily be [adversely] affected. Thus, it would amount to a sheer injustice if such parties (as the present Appellant) cannot seek redress for any wrong done thereto by the 2nd Respondent.

Instructively, the above postulation predicated upon the rationale that informed the immutable dictum reiterated by the Apex Court over the years in a plethora of authorities. See THOMAS VS. LOCAL GOVT SERVICE BOARD (Supra); WILLIS VS ASSOCIATION OF UNIVERSITIES OF BRITISH COMMONWEALTH (Supra); THE PROVOST ALVAN IKOKU COLLEGE OF EDUCATION VS AMUNEKE (Supra); CARLEN (NIG) LTD VS. UNIJOS (Supra), et al.

Flowing from all the foregoing postulations, it’s my considered view that upon a community reading of the provisions of the entire 25 Sections of the NABTEB Act (Supra), the 2nd Respondent (Registrar of 1st Respondent) is by implication accorded a judicial personality that enables him to sue and liable to be sued eo nomine. Ironically, in the instant case, the Lower Court was recorded to have held at page 285 lines 7 – 8 of the Record, to the effect thus:

“I am of the view that the 2nd Defendant is not a necessary party to this Suit, the 2nd Defendant is at best, a necessary witness.”

I entirely disagree with the said finding of the Lower Court for the obvious reasons postulated above. That finding of the Lower Court, in my considered view, is not only erroneous, but it clearly amounts to a misdirection. This is so, because the 1st Respondent being an artificial legal personality can only have its policies, functions and powers executed vide the 2nd Respondent, the Chief Executive and principal agent, as well as other agents thereof.

However, one fundamental factor which distinguishes the case of CARLEN (NIG) LTD VS. UNIJOS (Supra), from the instant case, is that the latter case had to do with the issue of simple contract. In that case, the Appellant sued the Respondent at the High Court of Plateau State, Jos claiming the sum of N11,358,000 as general damages for breach of contract, over-head costs for delay in payment of unpaid money for work done, et al. Thus, not surprisingly, the Apex Court espoused the trite principle, to the effect thus:

The general law is that a contract made by an agent, acting within the scope of his authority for a disclosed principal, is in law, the contract of the principal, and the principal and not the agent is the proper person to sue or be sued upon such contract. Per Ogundare, JSC (of blessed memory) @ 659 paragraphs F – G.

Contrariwise, in the instant case, by the averments contained in the Amended Statement of Claim thereof, the Appellant has alleged that the –

“termination of his appointment was actuated by malice and not in accordance with the laid down rules governing the service of Senior Staff.”

And that –

“the malicious and reckless publication of deliberate falsehood by the Defendant have caused him damage to his reputation.”

What’s more, it’s equally averred by the Appellant in the said Amended Statement of Claim that –

“he has never at any time been accused of examination malpractices by the Defendants before his termination.”

See most especially paragraphs 45, 52 & 53 of the said Amended Statement of Claim contained at pages 116 to 126 of the Record of Appeal.

Thus, in the light of my above reasoning, I am of the firm view that the answer to Issue No. 2 ought to be in the affirmative, and same is hereby resolved in favour of the Appellant.

Hence, having resolved both issues in favour of the Appellant, there is no gainsaying the fact that the appeal is grossly meritorious, and it’s hereby allowed by me. Consequently, the vexed Ruling of the Federal High Court, Benin Judicial Division, delivered on March 5, 2010 by the Hon. Justice M. B. Idris in Suit No.FHC/B/CS/75/2006, is hereby set aside.

Consequent whereupon, the suit is hereby remitted to the court below for reassignment by the Hon. Chief Judge of the Federal High Court for trial by another Judge.

The Appellant shall be entitled to costs of N50,000.00 against the Respondents.

Before putting the last dot to this Judgment, I have deemed it expedient to reiterate the trite principle, that the court as a dispassionate umpire must at all times remain steadfastly focused at striking a balance between the need for fair hearing and determination of the matter within a reasonable time. The ultimate objective of fair hearing within a reasonable time is the attainment of substantial justice to the respective parties. Delay of justice is bad. But denial of justice to a party is undeniably outrageously worse. That’s so, because the denial of justice inflicts an excruciating pain, suffering and untold hardship upon the hapless parties that naturally rely on an impartial administration of justice. See ASHIRU vs. AYOADE (2000) 6 NWLR (Pt.976) 405 @ 425.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I am in complete agreement with his lordship’s reasoning and conclusions therein and have nothing to add.

In the circumstance, I too find the appeal to be meritorious and allow the same. Furthermore, I agree with the consequential orders made in the lead judgment including the order relating to costs.

TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read the draft of the judgment prepared and just delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA., who meticulously addressed the issues thrown up in the appeal, to my satisfaction.

I agree with his reasoning and the conclusion that the appeal is not lacking in merits. I have nothing more useful to add to it. The appeal is accordingly allowed by me.

The ruling of the Federal High Court, Benin Judicial Division, in Suit No. FHC/B/CS/75/2006 of 5th March, 2010 is set aside.

I adopt the consequential orders of retrial and of award of costs, as contained in the lead judgment, as mine.

Appearances

A. E. OkposinFor Appellant

AND

Dr. (Mrs) V. J. O. AzingeFor Respondent