MUSA HAMMAWA ABBA v. JOINT ADMISSION AND MATRICULATION BOARD & ANOR (2014)

MUSA HAMMAWA ABBA v. JOINT ADMISSION AND MATRICULATION BOARD & ANOR

(2014)LCN/7590(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of December, 2014

CA/YL/7/2013

RATIO

ACTION: ACTION CHALLENGING TERMINATION; WHETHER, AN ACTION CHALLENGING TERMINATION DOES NOT PARTAKE OF THE NATURE OF AN ACTION FOR BREACH OF FUNDAMENTAL RIGHTS
In any event, an action challenging termination does not partake of the nature of an action for breach of fundamental rights. See: Uzondu V UBN Plc (2009) 5 NWLR (Pt.1133) 1; & Grace Jack V University of Agriculture, Makurdi (2004) 1 SCNJ 335 @ 346; (2004) 5 NWLR (Pt.865) 208.

STATUTE OF LIMITATION: PUBLIC OFFICERS (PROTECTION) ACT; THE EFFECT OF THE STATUTE OF LIMITATION IN AN ACTION AND THE CONDITIONS FOR THE APPLICABILITY OF SECTION 2 (a) OF THE PUBLIC OFFICERS (PROTECTION) ACT
Now, it must be said from the very onset that a statute of limitation, such as the Public Officers (Protection) Act, takes away the right of action, the right of enforcement, and the right to judicial relief in a plaintiff. Consequently, it leaves him with a naked and an empty cause of action which he cannot enforce if the alleged cause of action is statute-barred; that is to say, if such a cause of action is instituted outside the three (3) months statutory period allowed by such Law. It is the law that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the period prescribed by such statute. Any action that is instituted outside the time stipulated by the statute is totally barred, as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See the decision of the Supreme Court in the locus classicus Ibrahim V JSC (1998) 14 NWLR (Pt.584) 1 @32 per Iguh, JSC.
Therefore, before any Court will act to apply the provisions of this Act, which serves to shut the door to a prospective litigant to ventilate his grievance before a court of law and competent jurisdiction, all areas must be examined with a fine magnifying glass to sift the wheat from the chaff, as it were), from the arguments presented.
The conditions for the applicability of Section 2(a) of the Public Officers (Protection) Act are as follows:
(a) 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 of that law; and
(b) 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 in the execution of any such law, duty or authority.

COURT; JURISDICTION; THE JURISDICTION OF THE COURT TO DETERMINE THE ALLEGATION OF CRIMINAL WRONGDOING AGAINST A PERSON

LABOUR LAW: CRIMINAL ALLEGATION ON AN EMPLOYEE; WHETHER A PERSON ACCUSED OF COMMITTING A CRIMINAL OFFENCE MUST FIRST BE CONVICTED IN A CRIMINAL TRIBUNAL BEFORE DISCIPLINARY ISSUES CAN BE RAISED AND RESOLVED AND THE DEFINITION OF MISCONDUCT
The law is that if anyone is caught committing a crime, it is only a criminal tribunal that can convict him. Conduct amounting to a crime must first be a matter for the criminal court or tribunal before disciplinary issues can be raised and resolved. This is because, where a person is accused of committing a criminal offence, his civil right to freedom from arrest, prosecution and punishment is called into question. There are however exceptions to this. For instance, where the person accused of committing the offence accepts his involvement in the commission of the offence. See: Dongtoe V CSC Plateau State (1995) 7 NWLR (Pt.408) 448; Garba V University of Maiduguri (1986) 1 NWLR (Pt.18) 550 @ 584; FCSC V Laoye (1989) 2 NWLR (Pt.106) 652@679-680. @457-458. In Uzondu V Uba Plc (2009) 5 NWLR (Pt.1133) 1@14, this Court per Ogunwumiju, JCA, held as follows:
“The law in this regard is that where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial convicting the employee. Where however, as in this case, the employee is not dismissed on the basis of the criminal allegation but for “gross misconduct”…, and having given the appellant a fair hearing as evidenced by the exhibit 3, the respondent was quite entitled to dismiss the appellant in this case.”

The definition of “gross misconduct” given by the Supreme Court in the case of Nwobosi V ACB Ltd (1995) 6 NWLR (Pt. 404) 658, was also adopted by this Court in the above case, (at page 13 of the Report), as follows:
“Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer”.
Thus, the decision in Garba V University of Maiduguri (supra) should not be taken as an absolute prohibition from instituting disciplinary measures against civil servants whenever there has been a criminal allegation/accusation. Instead, other considerations do come in. The point however is that, as soon such criminal investigations are involved, care must be taken by administrative bodies to ensure that the provision of Section 36(4) of the 1999 Constitution pertaining to fair hearing is adhered to. This though is not so difficult where the person accused accepts his involvement in the acts complained of, and no criminal charges against him would be required. In such a case, he would be taken as having been confronted with the accusation and he admitted it. He could face discipline thereafter.

JUSTICES:

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

MUSA HAMMAWA ABBA – Appellant(s)

AND

(1) JOINT ADMISSION AND MATRICULATION BOARD
(2) THE REGISTRAR, JAMB – Respondent(s)

JUMMAI HANNATU SANKEY,J.C.A.(Delivering the Leading Judgment): This Appeal arose from the Ruling of the National Industrial Court, sitting in Yola delivered, on the 29th October, 2012. The Appellant, as Claimant, had approached the Lower Court via a Writ of summons seeking a declaration that the termination of his appointment by the Defendants, (now Respondents), is a breach of his contract of employment; and also claiming that the said action is null and void and a breach of the Claimant’s fundamental right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In addition, he sought five (5) other ancillary reliefs. After the Appellant had filed his Complaint before the Lower Court, as well as his Statement of Facts, the Respondents filed a preliminary objection to the hearing of the suit, and shortly thereafter, filed their Statement of Defence. The ground for the objection was that the action was statute-barred by virtue of Section 2 (a) of the Public Officers Protection Act. The Appellant, in response, argued that the suit was one for the enforcement of his fundamental right, and so it was exempted from the provisions of the Act. In a considered ruling, the trial Court rejected the Appellant’s contention, and instead, upheld the arguments of the Respondents that the Appellant’s suit before it was mainly a challenge to the termination of his appointment for which he sought redress for same. It therefore held that, having been filed in excess of 24 months after the cause of action arose, (which is significantly more than three (3) months), it was statute-barred. For that reason, it dismissed the suit. It is against the order of dismissal that the Appellant, now aggrieved, has appealed to this Court vide his Notice of Appeal comprised of three (3) Grounds, filed on 23-01-13.

On the 12-11-13 when the Appeal was called up for hearing, learned Counsel for the Appellant, Mr. Husseini G. Maidawa, adopted and relied on the arguments canvassed in the Appellant’s Brief of argument filed on 14-03-13, as well as the arguments in the Appellant’s Reply Brief of argument filed on 13-05-13, as the Appellant’s arguments in this Appeal. He urged the Court to allow the Appeal and to remit the case back to the National Industrial Court for trial. In like vein, the learned Counsel for the Respondent, Mr. E. O. Odo, holding the brief of Mr. Ibrahim Angulu, adopted and relied on the arguments canvassed in the Respondents’ Brief of argument filed on 30-04-13, as the Respondents’ arguments in this Appeal. He urged the Court to dismiss the Appeal and affirm the decision of the Lower Court.

Both the Appellant and the Respondents submit two (2) issues for the determination of this Appeal. Upon a close scrutiny, I am of the view that the Respondents’ issues better encapsulate the issues raised by the grounds of Appeal. I will, therefore, adopt them as the issues by which this Appeal will be determined. They are as follows:
(1) Whether the action at the Lower Court is one for the enforcement of a fundamental right, or one challenging the termination of employment simpliciter. (Distilled from Grounds 2 & 3).
(2) Whether the action at the Lower Court was statute-barred. (Distilled from Ground 1)
Issue 1: Whether the action in the Lower Court is one for the enforcement of a fundamental right, or one challenging the termination of employment simpliciter.
Learned Counsel for the Appellant defines a “fundamental right” as any of the fundamental rights provided for in Chapter (IV) of the 1999 Constitution, as was held by the Supreme Court in Fajemirokun V CB Nig Ltd [2001] 5 NWLR (Pt.1135) 588 at 611. He submits that, by the Complaint and the Statement of facts filed by the Appellant, especially relief 1 and paragraphs 24 and 25 respectively, the Appellant’s complain before the trial Court was that the Appellant’s right to a fair hearing under Section 36 of 1999 Constitution was breached by the Respondents. He submits further that whenever a person, as in this case, alleges that his appointment was terminated without giving him a fair hearing, this action violates the person’s constitutional right to a fair hearing under Section 36 of Chapter (IV) of the 1999 Constitution. Reliance is placed on WAEC V Akinkunmi (2002) 7 NWLR (Pt.776) 327 @ 339-340.

Counsel submits that in order to determine the propriety of the second leg of this issue which is, whether the Appellant’s claim of breach of fair hearing, is a subsidiary relief, the documents that the Court should look at are the Complaint and the Statement of Facts of the Appellant.` He however contends that that the gravamen of the complaint of the Appellant is the breach of his right to a fair hearing which resulted in the termination of his employment. He argues that the word “and” in relief 1 is to be construed conjunctively, thereby making the issue of fair hearing and termination of employment one and inseparable.
Counsel again relies on the decision in Fajemirokun V C B Nig Ltd (supra) to submit that the terms of the enforcement of rights under Chapter (IV) of 1999 Constitution includes the rights which are attached or intrinsic to any occasion e.g. rights of fair hearing. He submits that, based on this authority, the rights in the first part of Chapter (IV) of the Constitution i.e. the right of fair hearing, cannot be divorced from the occasion that gave rise to it. Therefore, he argues that, in the instant case, the claim of fair hearing cannot be divorced from the issue of termination of employment.
Furthermore, Counsel submits that once it is settled that the main and principal issue for determination in this case is the breach of the Appellant’s fundamental right to fair hearing in the course of the termination of his employment, the matter of the termination of employment will no longer be an issue. He urges the Court to resolve this issue in favour of the Appellant.

In his response to this issue, learned Counsel for the Respondent submits that the Appellant’s claim before the Lower Court principally challenges the termination of his employment. This is as opposed to seeking the enforcement of a fundamental right pursuant to Section 46 of the Constitution of the Federal Republic of Nigeria, in which case, the Fundamental Rights (Enforcement Procedure) Rules would have been applicable. Counsel submits that there is a distinction and a difference between matters commenced for the enforcement of a fundamental right pursuant to Section 46 of the Constitution of Nigeria, 1999, and other matters, in which reference is merely made to a right, such as the right to a fair hearing contained in Chapter 4 of the Constitution, as in this case. Learned Counsel therefore contends that this case falls within the latter case as it is a case where reference is made to fair hearing, but it is not a case for the enforcement of a fundamental right. He argues that it is only in cases of the enforcement of a fundamental right that an Applicant can benefit from Order 3 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules which states that:
“An application for the enforcement of a fundamental right shall not be affected by any limitation statute what so ever.”
He thus submits that this protection is not for each and every suit in which a mere reference is made to fundamental rights contained in Chapter 4 of the Constitution, as is in this case.

Counsel argues that, from the Appellant’s claims before the Lower Court, it is crystal clear that it is purely a case challenging the Appellant’s termination, and asking for reinstatement, damages, and arrears of his entitlements. There is no prayer is asking for the enforcement of his fundamental right. It merely states in the first prayer that the termination is a breach of his fundamental right to a fair hearing. Counsel thus submits that it is not in every suit where the claim alleges an infraction of a fundamental right, such as the right to a fair hearing, that it becomes a fundamental rights enforcement case.
Furthermore, learned Counsel submits that, in a case for the enforcement of a fundamental right, the enforcement of the fundamental right would be the principal issue. In addition, Counsel submits that, even if the suit had been filed pursuant to the Fundamental Rights (Enforcement Procedure) Rules, it would still not be a fundamental rights issue, as the main issue in the suit challenges the termination of his employment and seeks reinstatement,damages and arrears of entitlements during the period of termination,plus the cost of the suit. He relies on Unilorin V Oluwadare (2006) 14 NWLR (Pt. 1000) 755; WAEC V Adeyanju (2008) 9 NWLR (Pt. 1092) 274.
Learned Counsel sought to distinguish the cases of Fajemirokun V CB Ltd (supra) @ 588 AT 611; & WAEC V Akinkunmi (supra) 327 @ 339 relied upon by the Appellant. Indeed, in the latter case, he argues that the action was instituted in good time and it was not statute barred, unlike in this suit filed by the Appellant. Counsel therefore urges the Court to discountenance the arguments of the Appellant and to hold that the case was a claim of termination of employment simpliciter.
To my mind, the point to be resolved under this issue is very narrow. It is as follows: whether the claim of the Appellant before the Lower Court can be categorized as a claim seeking the Lower Court’s declaration that the termination of his appointment was wrongful, based on which he then seeks certain ancillary reliefs; or whether it is a claim for the enforcement of his fundamental right to a fair hearing, which he alleges was denied him before his appointment was determined?

In the determination of this issue, it becomes imperative that we pay close attention to the exact wordings of the claim of the Claimant before the Lower Court. I therefore set it out in extensio here below:
(1) “A declaration that the termination of the appointment of the Claimant by the Defendants is a breach of the contract of employment of the claimant and the said action is null and void and a breach of Claimant’s Fundamental Right to fair hearing as guaranteed by Section 36 of 1999 Constitution of the Federal Republic of Nigeria.
(2 An Order of the Honourable Court directing the Defendant to reinstate the Claimant to his position as Clerical Officer 1 with the 1st Defendant.
(3) An Order of the Honourable Court directing the Defendants to pay the Claimant his outstanding arrears of his entitlements and/or benefit with 1st Defendant as Clerical Officer 1 on Contiss 04 from 08/4/2010 to 30/04/2012 totaling N535, 736.40k (Five Hundred and Thirty Five Thousand Seven Hundred and Thirty Six Naira, Fourty Kobo).
(4) An Order of the Honourable Court directing the Defendants to pay the Claimant his entitlement from 30/4/2012 to the date of Judgment.
(5) The sum of N500,000. 00 as general damages to the Claimant for the hardship he suffered as a result of the breach of Contract by the 1st Defendant.
(6) The cost of the Suit.”
It is quite evident from the first relief, that the Appellant seeks a declaration that the termination of his appointment was a breach of the terms of his employment; and in consequence of this, such a termination is null and void and a breach of his right to a fair hearing. The suit was commenced before the National Industrial Court by way of a Writ of Summons. The principal complaint of the Appellant on his pleadings was that the Respondent, in terminating his appointment, breached the terms of his employment. Therefore, in proving his claim before the Lower Court, the Appellant was obliged to adduce evidence to prove which of the terms of his employment had been breached and how.

Thus, due to the manner, mode or style in which the Appellant chose to approach the Lower Court and the phraseology of his reliefs, which are binding on him, I am of the humble view that his principal or primary claim before that Court was indeed for a declaration that the termination of his appointment by the Respondent was in breach of the terms of his appointment. The reference made to the breach of his right to a fair hearing was merely ancillary to that claim. Indeed, by paragraphs 22 & 23 of his Statement of Claim, the Appellant elaborated his complaint thus:
“22.The Claimant also avers that after some weeks of the conclusion of the hearing of the Committee, without any query issued to the claimant, the claimant was redeployed to Yola office and assumed duty on the 11th January, 2010 at no cost to the 1st Defendants (sic) based on the recommendation of the Committee. The letters of redeployment dated 6/01/2010 and Assumption of duty certificate are hereby pleaded and shall be relied upon at the trial.
23. The claimant also avers that 3 months after his redeployment to Yola office, the 1st Defendant disengaged him from its service or (sic) the allegation of conniving with an outsider to access classified information of (sic) candidate as regard examination/registration details recommended by the Committee that investigated the claimant. The disengagement letter is hereby pleaded and shall be relied upon at the trial.
(Underlining supplied for emphasis)
It is therefore not in doubt that his principal claim was in respect of his termination which he complains was in breach of his contract of employment. I am thus constrained to agree with the Lower Court in its findings.
I am fortified in this finding by the decision of the Supreme Court in WAEC V Adeyanju (2008) 9 NWLR (Pt.1092) 274. Therein, the Respondent brought an action against the Appellant, for withholding his examination result, via the Fundamental Rights (Enforcement Procedure) Rules. His main grievance was the cancellation of the examination result by the Appellant. It was however the view of the hallowed Apex Court that, since the main issue was the withholding of the result, and this does not come within the purview of a fundamental right as guaranteed by the Constitution, the action should have been commenced by way of a Writ, and not by way of the Fundamental Rights Enforcement Procedure.
Hear Akintan, JSC in his erudite contribution to the lead Judgment of the Supreme Court @ page 298 of the Report:
“The main question raised and canvassed in this Appeal is whether the Respondent’s action could be brought under the Fundamental Rights (Enforcement Procedure) Rules. The answer to such question has long been resolved in a number of judicial decisions.
The position of the law is that, the procedure for instituting an action based on the infringement of a fundamental right under the Constitution is prescribed by the Fundamental rights (Enforcement Procedure) Rules, 1979. Only a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the procedure. Thus an action for wrongful dismissal from employment cannot be brought under the Rules since it belongs to a different class of action from actions on contravention or threatened contravention of a fundamental right. When therefore an application is brought under these Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement thereof should be the main claim and not an accessory claim. See Ebuonu V BRTC (1997) 12 NWLR (Pt. 531) 29; Tukur V Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; & Tukur V Government of Taraba State (1997) 6 NWLR (Pt.510) 549.”
Mohammed, JSC, in the lead Judgment of the Court, also held thus at page 295 of the Report:
“A person seeking relief under Section 46 (1) of the 1999 Constitution and Order 1 Rules 2 and 3 of the Fundamental Rights (Enforcement) Rules, 1979, must ensure that the main relief and the consequential reliefs sought, point directly to a fundamental right under Chapter IV of the 1999 Constitution, and a clear deprivation of the same by the other party being sued …”
In the case of Unilorin V Oluwadare (2006) 14 NWLR (Pt.1000) 755, the Supreme Court yet again unequivocally held that when an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of fundamental rights or the securing of the fundamental right thereof should be the main claim and not the accessory claim. Enforcement of the fundamental right or securing enforcement thereof should, from the Appellant’s claim as presented, be the principal or fundamental claim and not accessory claim. However, where the main claim or principal claim is not the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised, as it will be incompetent. In the case before the Supreme Court, the Respondents claim being a challenge to his expulsion as a student from the 1st Appellant Institution was held not to be one of those claims/reliefs envisaged by the Fundamental Rights (Enforcement Procedure) Rules.
In the instant case, the claim of the Appellant at the Lower Court was for a declaration that the termination of his appointment was in breach of his terms of employment. While his principal relief is his reinstatement to his previous position as a Clerical officer 1 and the payment of his outstanding entitlements, as well as damages. It is instructive that there is no consequential relief sought for the enforcement of his right to a fair hearing in his ancillary reliefs. Thus, the issue of the enforcement of a fundamental right according to the Fundamental Rights (Enforcement Procedure) Rules did not arise at all.
In any event, an action challenging termination does not partake of the nature of an action for breach of fundamental rights. See: Uzondu V UBN Plc (2009) 5 NWLR (Pt.1133) 1; & Grace Jack V University of Agriculture, Makurdi (2004) 1 SCNJ 335 @ 346; (2004) 5 NWLR (Pt.865) 208.
Thus, for all the above reasons, I am of the considered view that challenging the termination of the Appellant’s appointment and seeking reinstatement is not a claim envisaged by the Fundamental Rights (Enforcement Procedure) Rules. Consequently, I find that the claim before the Lower Court was one essentially and principally challenging the termination of the Appellant’s employment with the Respondents simpliciter, and not a claim for the enforcement of his fundamental right to a fair hearing. Accordingly, Order 3 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules which provides that:
“An application for the enforcement of a fundamental right shall not be affected by any limitation statute whatsoever,” does not apply to save the case. I therefore resolve this issue in favour of the Respondent.

Issue 2: Whether the action at the Lower Court was statute-barred. (Distilled from Ground 1)
Under this issue, learned Counsel for the Appellant submits that Section 2
(a) of Public Officers Protection Act offers protection for public officers, whether natural or artificial persons. However, that such protection is not absolute. He submits that the law is that where a public officer abuses his office or authority, acts unconstitutionally or acts outside the colour of his authority, he cannot be protected by Section 2(a) of the Public Officers Protection Act. He relies on Ibrahim V JSC (1998) 14 NWLR (Pt.584) 1 @ 32. He contends that by the letter of termination of appointment of the Appellant, (lines 4 and 5 thereof), the allegation against the Appellant is:
“collusion with an outsider to access classified information on a candidate with regard to examination/registration details”.
The Panel’s Report at page 1 also shows that there was also an allegation against the Appellant of collecting the sum of N1,000.00 from an outsider as a bribe. He argues that these allegations are of a criminal nature under Sections 96 and 122 of the Penal Code, respectively. Counsel further submits that the word ‘collusion’ is used interchangeably with the word ‘conspiracy’. He refers to Section 96 (i) of the Penal Code which defines conspiracy to mean, when two or more persons agree to do or cause to be done an illegal act; or an act which, not illegal by illegal means. Counsel therefore submits that, by this definition, collusion and conspiracy are elements of a crime. Hence, Counsel submits that, having ascertained that the allegations against the Appellant are criminal in nature and since Section 6 of the 1999 Constitution vests judicial powers in courts only, any administrative panel which usurps these powers is acting unconstitutionally. He relies on Egbuniwe V FGN (2010) 2 NWLR (Pt.1178) 348 @ 368; & Abia State University V Anyaibe (supra) @ 661.
Counsel thus submits that it is a serious constitutional breach for any administrative committee, like the one in the instant case, to try the Appellant for criminal allegations without taking him before a court of law. He submits that the act of the Respondents in trying the Appellant on criminal allegations, was outside their constitutional powers and they are therefore, not entitled to the protection available under Section (2) (a) Public Officers Protection Act. For this, he relies on Ali V Governor of Borno State (2008) All FWLR (Pt.408) 365 @ 378.
Furthermore, learned Counsel submits that the Public Officers Protection Act does not apply to constitutional matters, including matters involving fundamental rights. To hold otherwise, he submits, is to render the enforcement of constitutional rights against the State and its officers, in cases of violation, virtually impossible to proceed with thereby rendering the Constitution redundant. He relies on Bendel State V Obayawana (1983) 4 NWLR 96.

On the whole, learned Counsel submits that the Appellant has made out a prima facie case of a constitutional breach of his right to a fair hearing against the Respondents to be allowed to call evidence at the trial in order to prove to his case. He contends that the Lower Court, by its premature ruling on statute bar, had failed to do this and thus, he urged this Court to overrule it.
Concerning this issue, learned Counsel for the Respondent submits that the action before the Lower Court was statute-barred having been brought outside the statutory period of three (3) months allowed by Section 2 (a) of the Public Officers Protection Act. He also contends that the Respondents are within the protection offered by this provision because they did not act outside the colour of their office or outside their authority or constitutional duty.
Counsel argues further that the letter of termination, (at page 21 of the Record of Appeal), shows that the Appellant was disciplined for “collusion with outsiders to access classified information on candidates with regards to examination registration details”. He urged the Court to take judicial notice that the 1st Respondent is an examination body and that it is a misconduct of the duties of an examination body for staff to release classified information to outsiders. This, he argues, cannot by any stretch of the imagination be said to be a crime, as there is no such crime known to our law. He contends that, although the Appellant in his Brief of argument, has tried to label it a conspiracy, it is a mere misconduct of the Appellant’s duties as it does not amount to a conspiracy as defined in Section 96 of the Penal Code. He further argues that Section 96 of the Penal Code envisages a criminal collusion to commit an offence known to law. Whereas, in this case, releasing information is not an offence known to law. Secondly, he contends that, since the act had not yet been carried out by the officer, it is not a crime. He relies on Section 96 (2) which states thus:
“96. (2) Notwithstanding the provision of subsection (1) no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or more parties to such agreement in pursuance thereof”.
Counsel further submits that the Respondent did not discipline the Appellant for collecting the sum of N1,000.00 as contended. He contends that this sum of money was merely mentioned as evidence of an attempt to collect money in the Report of the Disciplinary Committee. (He refers to page 52 of the Record of Appeal). However, he argues that the letter disengaging the Appellant, (at page 21 of the printed Record), did not mention the sum of N1,000.00.
Furthermore, learned Counsel submits that it is settled law, that an organization, (like that of the Respondents), can punish its member of staff who commits a misconduct that does not amount to a criminal offence. This is more so where the member of staff admits to the misconduct. He refers to the report of the Disciplinary Committee, (at page 53 and 60 of Record); as well as Uzondu V Uba Plc (2009) 5 NWLR (Pt. 1133) 1. Counsel thus submits that the act of releasing classified information of an examination body, (like the Respondent), is an act of gross misconduct which entitled the Respondent to dismiss the Appellant. He insists that what the Appellant was dismissed for was not a crime and therefore cannot be a basis for derogation from the Public Officers Protection Act.

Counsel, relying on Uzondu V Uba (supra) submits that a person who had admitted to the commission of misconduct, as the Appellant did, cannot turn around and complain about fair hearing. He contends that in the report of the Disciplinary Committee, (at pages 52 to 60 of the Record), the Appellant did not only admit the misconduct, he disclosed how he got access to the computer. He therefore submits that facts admitted need no further proof and argues that the Appellant, at no stage attacked the integrity and authenticity of the report of the Disciplinary Committee.
Furthermore, Counsel submits that, where the law gives a right, it must be exercised timeously. Where a beneficiary sleeps over the right, (like the Appellant did), for 2 years and 29 days, it becomes extinguished by virtue of the Public Officers Protection Act. He therefore urged the Court to disallow the Appeal and affirm the decision of the National Industrial Court.
In his Reply Brief, learned Counsel for the Appellant drew a parallel between the facts in this case and those in WAEC V Akinkumi (supra) and submits that the law has long been settled that the enforcement of fundamental rights can be commenced by any process acceptable to the Court. He refers to Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Secondly, Counsel submits that the allegation of accessing classified information under Section 1(1) (a) of the Official Secrets Act Cap 03 Laws of the Federation of Nigeria, 2004, is punishable with imprisonment for a period not exceeding four (4) years under Section 7 of the same Act. Counsel therefore submits that, in view of this provision, the offence alleged against the Appellant is an offence known to law, contrary to the submissions of the Respondent’s Counsel. He again urged the Court to allow the Appeal.

Findings
The submissions and arguments under this issue are centered on the applicability or otherwise of the Public Officers Protection Act to the instant case. Whereas the Appellant vigorously contends that it is not applicable by virtue of the fact that the Respondent acted outside its colour or the confines of its duty by purporting to try and sanction the Appellant for an offence which, he alleges, amounts to a crime; the Respondent insists that the Act applies for two reasons: (1) that the suit was filed 2 years and 29 days outside the period prescribed by the Act; and (2) the conduct of the Appellant, for which he was investigated by the Disciplinary Committee and sanctioned, was not a criminal offence but a misconduct. In the alternative, the Respondent has argued that, even if the Appellant’s conduct could be said to amount to a crime, the Appellant admitted committing same before the Disciplinary Committee as recorded in its Report, (which Report has not been denied or impugned by the Appellant), contained at pages 52-66 of the Record of Appeal.
Now, it must be said from the very onset that a statute of limitation, such as the Public Officers (Protection) Act, takes away the right of action, the right of enforcement, and the right to judicial relief in a plaintiff. Consequently, it leaves him with a naked and an empty cause of action which he cannot enforce if the alleged cause of action is statute-barred; that is to say, if such a cause of action is instituted outside the three (3) months statutory period allowed by such Law. It is the law that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the period prescribed by such statute. Any action that is instituted outside the time stipulated by the statute is totally barred, as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See the decision of the Supreme Court in the locus classicus Ibrahim V JSC (1998) 14 NWLR (Pt.584) 1 @32 per Iguh, JSC.
Therefore, before any Court will act to apply the provisions of this Act, which serves to shut the door to a prospective litigant to ventilate his grievance before a court of law and competent jurisdiction, all areas must be examined with a fine magnifying glass to sift the wheat from the chaff, as it were), from the arguments presented.
The conditions for the applicability of Section 2(a) of the Public Officers (Protection) Act are as follows:
(a) 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 of that law; and
(b) 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 in the execution of any such law, duty or authority.
In considering the first condition, as in (a) above, to determine whether the Act is applicable to the facts of the case before us, no issue has been raised, either at the Lower Court or before this Court, to dispute the fact that the Respondents are public officers. Since that is so, it is presumed that the Respondents are indeed public officers within the meaning of the Act. And I do so find.
The next condition in (b) above is what we are most concerned with here. I have already stated the given positions of the parties on this matter.
Judicial powers under Section 6 of the 1999 Constitution are not vested in private persons, administrative tribunals or other authorities. The Constitution is clear as to who should perform judicial acts. And since it is the exclusive function of the Judiciary to exercise judicial function, any member of the executive or of an administrative body who interferes with those functions must be prepared to face the consequences of such interloping conduct by way of an action by a person aggrieved.

It is certain and brooks no argument that where there is an allegation of criminal wrongdoing against a person, the jurisdiction to determine the allegations is vested in the courts, and the exercise that jurisdiction cannot be usurped by any administrative tribunal. See: Egbuniwe V FGN (2010) NWLR (Pt. 1178) 348; Garba V University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Sofekun V Akinyemi (1981) 1 NCLR 135; Dongtoe V CSC (2001) 9 NWLR (Pt.717) 132.
Thus, in order to determine whether the act done by the Respondents, i.e. the termination of the Appellant’s appointment, was carried out by the Respondents within the confines of its public duty/authority and in respect of an alleged misconduct, (as against a criminal wrongdoing), on the part of the Appellant, the starting point must necessarily be the letter terminating the Appellant’s appointment. For clarity of argument therefore, the contents of the letter are set out hereunder:
“LETTER OF DISENGAGEMENT FROM SERVICE
The Board has approved your disengagement from its service, for services no longer required, after due consideration of the report of the Management’s Disciplinary Committee, on the allegation of your collusion with outsiders to access classified information on candidates, with regard to examination registration details….”
The bone of contention between the parties is whether the allegation for which the Appellant was investigated by the Disciplinary Committee was of a criminal nature. If the answer to this is in the affirmative, then the next question to be answered is: whether the Respondents, not being a competent court or tribunal vested with powers to so act, acted outside their boundaries by acting on the report of the Committee to terminate the Appellant’s appointment.
The law is that if anyone is caught committing a crime, it is only a criminal tribunal that can convict him. Conduct amounting to a crime must first be a matter for the criminal court or tribunal before disciplinary issues can be raised and resolved. This is because, where a person is accused of committing a criminal offence, his civil right to freedom from arrest, prosecution and punishment is called into question. There are however exceptions to this. For instance, where the person accused of committing the offence accepts his involvement in the commission of the offence. See: Dongtoe V CSC Plateau State (1995) 7 NWLR (Pt.408) 448; Garba V University of Maiduguri (1986) 1 NWLR (Pt.18) 550 @ 584; FCSC V Laoye (1989) 2 NWLR (Pt.106) 652@679-680. @457-458. In Uzondu V Uba Plc (2009) 5 NWLR (Pt.1133) 1@14, this Court per Ogunwumiju, JCA, held as follows:
“The law in this regard is that where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial convicting the employee. Where however, as in this case, the employee is not dismissed on the basis of the criminal allegation but for “gross misconduct”…, and having given the appellant a fair hearing as evidenced by the exhibit 3, the respondent was quite entitled to dismiss the appellant in this case.”

The definition of “gross misconduct” given by the Supreme Court in the case of Nwobosi V ACB Ltd (1995) 6 NWLR (Pt. 404) 658, was also adopted by this Court in the above case, (at page 13 of the Report), as follows:
“Gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer”.
Thus, the decision in Garba V University of Maiduguri (supra) should not be taken as an absolute prohibition from instituting disciplinary measures against civil servants whenever there has been a criminal allegation/accusation. Instead, other considerations do come in. The point however is that, as soon such criminal investigations are involved, care must be taken by administrative bodies to ensure that the provision of Section 36(4) of the 1999 Constitution pertaining to fair hearing is adhered to. This though is not so difficult where the person accused accepts his involvement in the acts complained of, and no criminal charges against him would be required. In such a case, he would be taken as having been confronted with the accusation and he admitted it. He could face discipline thereafter.
In the instant case, the Appellant’s Counsel has energetically argued that the allegation of ‘collusion to access classified information’ in respect of students registered with JAMB, (which is an acronym for ‘Joint Admissions And Matriculation Board’), is an allegation of a criminal nature which is triable only by a court of law. He relies on Sections 96 and 122 of the Penal Code, as well as Section 1 (1) of the Officials Secrets Act Cap 03 LFN, 2004. For the record, I accept the invitation by the Respondents to take judicial notice of the fact that the 1st Respondent, Joint Admissions and Matriculation Board (JAMB), is an examination body mandated by law to examine students with a view to placements in Universities within Nigeria.

That having been said, an examination of the Report of the Disciplinary Committee, (at pages 52 to 64 of the Record of Appeal), discloses that what the Appellant and some other members of staff of the Respondents were confronted with was an allegation of “illegal checking and printing of result slips”. At the sitting of the Committee, all the staff members accused of this infraction appeared before the Panel and made useful statements. In the Appellant’s case, he readily admitted checking the said candidate’s registration number on the Corper’s Computer located at the Programming Unit of the ITS Department, but alleged that, since he only assisted the candidate, he did not receive any gratification for the service rendered. When questioned further as to how he acquired the password to the computer since he did not work in that office and it did not form part of his duties, he explained that he stumbled on it by trial and error. He proceeded to give the Committee a practical demonstration of how he was able to do this and his ability to search for registration numbers after he had opened the system. I note that he however later retracted his earlier statement, and said instead that, even though he was in the process, he had not yet succeeded in checking the candidate’s registration number before he was apprehended. The other members of staff, starting with the security guard, (whom the Appellant said, introduced him to the candidate so he could render him assistance), were all similarly interviewed and they gave their sides of the story.
It was after all this that the Committee made its recommendations in respect of all the said officers. The recommendation concerning the Appellant is contained at page 62 of the printed Record, and it states as follows:
“1. Mr. Musa Hammawa, a Junior Staff, was cooperative and forthcoming with responses in the course of investigations. Having confessed to hustling and assisting candidates for eventual show of appreciation by them, he should be posted to the Board’s office in his State of origin at no cost to the Board and issued with a final warning to desist from such acts in future.”
The reason why I have gone to great lengths into the evidence in the printed Record is solely for the purpose of establishing whether or not the allegation which the Appellant was confronted with, when invited to appear before the Disciplinary Committee, was of a criminal nature. This is crucial in the determination of whether the Respondents went outside their colour to strip them of the protection offered by the Public Officers Protection Act. IT is also to determine whether or not the Appellant admitted the allegations, whether or not they were criminal in nature, before the Disciplinary Committee.

In my humble view, from the context of the facts in which the word ‘collusion’ was used by the Respondents in their letter terminating the Respondent’s appointment, ‘collusion’ meant no more than that, the Appellant, (and others un-named), secretly agreed together to do a dishonest act. Contrary to the submissions of learned Counsel for the Appellant, collusion does not necessarily equate to a conspiracy. The Oxford Advanced Learner’s Dictionary 8th Edition, defines collusion thus:
“secret agreement especially in order to do something dishonest or to trick other people…”
It goes without saying that on the flip side, the word ‘conspiracy’ in its criminal context as defined under the Penal Code, requires a whole lot more than secretly agreeing with someone to do a dishonest act or to trick someone. For avoidance of doubt, Section 96 (1) & (2) of the Penal Code provide thus:
(1) “When two or more persons agree to do or cause to be done –
(a) an illegal act; or
(b) an act which is not illegal by illegal means,
such an agreement is called a conspiracy.
(2) Notwithstanding the provision of subsection (1) no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or more parties to such agreement in pursuance thereof”.
I therefore find on this score that the allegation of collusion in this context does not denote or impute a criminal offence. Instead, it is in the nature of misconduct by a member of staff of an examination body to divulge un-authorized information in respect of examinations to un-authorized personnel.

Now, the attack on the allegation has been two-pronged. Learned Counsel for the Appellant has also submitted that the allegation of accessing ‘classified information’ is criminal by virtue of Section 1(1) (a) of the Official Secrets Act Cap 03 Laws of the Federation of Nigeria, 2004, which punishes it with imprisonment for a period not exceeding four (4) years under Section 7 of the same Act. Again, for clarity of argument, the provision of the law is set out herein below:
“1. Protection of official information, etc
(1) Subject to subsection (3) of this Section, a person who –
(a) transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit it; or
(b) obtains, reproduces or retains any classified matter, which he is not authorized on behalf of the government to obtain, reproduce or retain, as the case may be, is guilty of an offence.”
Counsel therefore submits that, contrary to the submissions of the Respondent, in view of this provision the offence alleged against the Appellant is an offence known to law. With all due respect, I am of the view that this submission is misconceived. The spirit behind the promulgation of this law was evidently to deal with persons in sensitive positions of State/Government entrusted with sensitive and top secret documents and materials and which are in a position to divulge such sensitive information, otherwise referred to as classified information, which could undermine and endanger the security, defense and/or safety of Nigeria as a Nation State. It is not expected to be applied to all positions, menial, junior and senior, in the civil service and/or government agencies, across board. If it were to be otherwise, it would be absurd and make nonsense of the law. For avoidance of doubt, ‘classified matter’ is defined in Section 9 of the Interpretation Section of the Act, as follows:
“classified matter means any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria.”
(Underlining supplied for emphasis)
Consequently, as ingenious and resourceful as this argument put forward by learned Counsel to the Appellant is, I find that it is totally out of place in relation to the facts before the trial Court. The Appellant was a Clerk working in an agency mandated to conduct examinations for persons aspiring to acquire a diploma or degree, (as the case may be), in a tertiary institution, i.e. a Polytechnic, Federal College of Education or a University. He was not employed by an arm or agency of Government where Government secrets are classified and its officers are subject to the Official Secrets Act. It is important to keep things in perspective here. Divulging information, in the instant case, cannot be equated to nor elevated to the level of compromising the security of Nigeria as a country. I therefore find that the allegation for which the Appellant was tried and sanctioned by the Respondents was not a criminal offence that would require trial before a court of law before the Respondents could proceed to apply any suitable sanction to him following disciplinary proceedings.

In conclusion, I have found that, after a proper examination and assessment of all the materials placed before the Lower Court, the issue of the enforcement of the fundamental right of the Appellant pursuant to the Fundamental Rights (Enforcement Procedure) Rules did not arise in this case. As afore-stated and for the avoidance of doubt, an action challenging the termination of employment does not partake of the nature of an action for breach of fundamental rights. This is more so as, it is not compulsory for an employer to ensure the prosecution of its employee for the commission of a crime, (should that be the case), before removing him. This is particularly so where the employee admits to the crime. See: Olanrewaju V Afribank Nig Plc (2001) 7 SCNJ 493. However, where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial convicting the employee.
Where however, (as in this case), the employee was not removed on the basis of any criminal allegation, but for misconduct as contained in the Respondents’ letter of disengagement, and the Appellant having expressly and explicitly admitted the misconduct, there was no call for the Respondents to stay action until such a time when a criminal trial would take place before a court of law. See: Uzondu V UBN Plc (2009) 5 NWLR (Pt.1133) 1.
In the instant case, there is no doubt that the action by the Appellant was begun before the Lower Court exactly 24 months and 29 days after the cause of action accrued. This certainly exceeds the three (3) months period allowed within which an action can be instituted against a public officer by a person aggrieved. The finding of the Lower Court in this regard is therefore faultless and I cannot see my way clear to interfere with same See: FCE Pankshin V Pusmut (2008) 12 NWLR (Pt.1101) 405; (Etim v. IGP (2001) 11 NWLR (Pt.724) 266). In consequence, I hold that the action before the Lower Court was statute-barred. I thus resolve issue 2 also in favour of the Respondent.
In the result, for all the above reasons stated, I find the Appeal lacking in merit and it fails. The Appeal is accordingly dismissed. The Ruling of the National Industrial Court, sitting in Yola delivered on the 29th October, 2013, is hereby upheld. I make no order as to costs.

JIMI OLUKAYODE BADA, J.C.A.: I had the privilege to read in advance the lead judgment of My Lord, JUMMAI HANNATU SANKEY, JCA, just delivered.
I agree with My Lord’s analyses and the conclusions reached on the issues in this appeal.
For the reasons so ably stated in the judgment, I too hereby dismiss the appeal.
I abide by the order on costs.

ADAMU JAURO, J.C.A.: I have had the opportunity of reading in advance the lead judgment just delivered by my learned brother, JUMMAI HANNATU SANKEY, J.C.A. I am in agreement with reasoning and conclusion contained therein to the effect that the appeal is lacking in merit.
I adopt the said judgment as mine, and join my brother in dismissing the appeal. I abide by the consequential orders contained in the judgment.

Appearances

Mr. Husseini G. Maidawa For Appellant

AND

Mr. E. O. Odo, holding the brief of Mr. Ibrahim Angulu For Respondent