ALABI v. FEDERAL CIVIL SERVICE COMMISSION & ORS
(2022)LCN/16173(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/A/418/2018
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
MR. A.A. ALABI APPELANT(S)
And
1. FEDERAL CIVIL SERVICE COMMISSION 2. ACCOUNTANT GENERAL OF THE FEDERATION 3. NIGERIA PRISON SERVICE RESPONDENT(S)
RATIO
WHETHER OR NOT A PUBLIC OFFICER PROTECTED BY THE PUBLIC OFFICERS (PROTECTION) LAW CAN LOSE HIS PROTECTION IF HIS CONDUCT IS NOT COMPLETELY DEVOID OF MALICE AND MALAFIDE
What this signifies is the fact that a public officer protected by this law can lose his protection if his conduct is not completely devoid of malice and malafide. Malice and malafide are allegations that the Court must consider when raised sufficiently. This was expatiated upon more in the case of Dr. Mathias Oko Offoboche v. Ogoja Local Government & Anor (2001) LPELR – 2265 (SC), where the Supreme Court Per Ayoola, JSC, held:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law of such protection. The burden is on the plaintiff to establish that the defendant had abused the position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which power was granted, for example personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of libel for some indirect purpose. The law has been put thus: “If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.” See generally for this proposition and others described in like terms, Gatley on Libel and Slander (op cit) para 16 – 4 and cases cited therein. An inquiry whether there is express malice as would defeat a defence of qualified privilege proceeds on an assumption that the occasion was privileged. The misuse of the occasion is malice that destroyed the privilege.” PER ADAH, JC.A.
WHETHER OR NOT THE PUBLIC OFFICERS PROTECTION LAW OFFERS AUTOMATIC PROTECTION TO ALL PUBLIC OFFICERS
From the settled position of our law, the Public Officers Protection Law does not offer automatic protection to all public officers. The public officer must be qualified to enjoy the protection before he can earn the protection. The application of the Public Officers Protection Law requires that the person seeking protection is:
(a) a public officer;
(b) that he acted in pursuance or in execution or intended execution of a law or public duty or authority; and
(c) that his action was not tainted by malice or abuse of office.
See – Hassan v. Aliyu & Ors. (2010) 17 NWLR (Pt. 1223) 547. PER ADAH, JC.A.
WHETHER OR NOT ANY PLEADING NOT COUNTERED IS DEEMED ADMITTED BY THE RESPONDENT
In our law of evidence, he who dare to assert must prove his assertion as required.
It is also in tandem with our procedural law that any pleading that is not countered is deemed admitted by the respondent. Since the allegations of malice and abuse of office raised were not countered, the only conclusion is that the respondents have accepted the assertion of the appellant. The trial Court was therefore wrong to hold that the action was statute-barred without any justifiable reason in the face of many decisions of the Supreme Court on this issue. PER ADAH, JC.A.
THE POSITION OF LAW WHERE PROVISION HAS BEEN MADE IN THE LAW FOR THE PERIOD WITHIN WHICH TO COMMENCE AN ACTION AFTER THE CAUSE OF ACTION HAS ACCRUED
It is hornbook law that where provision has been made in the law for the period within which to commence an action after the cause of action has accrued, then an action ought not to be brought after the prescribed period has elapsed. An action brought outside the prescribed period is offensive to the law and does not give rise to a cause of action. See OKO vs. A-G EBONYI STATE (2021) LPELR (54988) 1 at 25-26 and 57-58, HASSAN vs. ALIYU (2010) 17 NWLR (PT. 1223) 547 and BELLO vs. YUSUF (2019) LPELR (47918) 1 at 11. Nonetheless, the applicability of this trite principle of law on limitation of action admits of exceptions and where an exception applies, it will serve to preserve the claimant’s right of action. See CIL RISK & ASSET MANAGEMENT LTD vs. EKITI STATE GOVT (2020) LPELR (49565) 1 at 57-60. PER OGAKWU, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, Abuja, delivered on 26th July, 2013, in Suit No. NICN/ABJ/149/2012.
The appellant as claimant instituted this action at the trial Court and claimed against the Respondents as Defendants all the reliefs as per the statement of claim, thus:
1. A Declaration that the purported letter of retirement of the claimant by the defendants is wrongful, null and void unjustifiable and of no legal effect.
2. A Declaration that the 1st defendant cannot vide the letter of retirement with reference No. 6231. 5.5/S.S/VOL.II/T2/87 dated 25th October, 2006 purporting to retire plaintiff from the Federal Civil Service except upon recommendation of the 2nd defendant if any, indicting the plaintiff of any wrong doing/culpability in the alleged overtime payment giving rise to the query issued by the Comptroller General of the 3rd defendant to the plaintiff.
3. A Declaration that the subject matter of the query issued by Comptroller-General of the 3rd Defendant vide letter dated 30th January, 2004 consequent upon which the 2nd defendant through its inspectorate division investigated and exonerated the plaintiff cannot be sufficient ground to retire the plaintiff.
4. An Order of perpetual injunction restraining the 2nd defendant, its agents, privies, assigns or however described, from acting, carrying unto effect the content of the letter of retirement, issued by the 1st defendant to the plaintiff with reference No. 6231.5.5/S.S/VOL.II/T2/87 dated 25th October, 2006.
5. An Order of this Honourable Court re-instating the claimant into the service of the 2nd defendant without loss of promotion, privileges and entitlements, leave grants accruable generally to the staff of the 2nd defendant without loss of promotion, privileges and entitlements, leave grants accruable generally to the staff of the 2nd defendant so as to make the plaintiff be at par with his colleagues.
The 3rd Defendant, now 3rd Respondent denied the claim of the appellant vide a statement of defence on the 19th July, 2012 along with Memorandum of Appearance and a Notice of Preliminary objection.
At the close of trial, the trial Court in a considered judgment dismissed the claims of the claimant on the ground that the suit is statute barred and the Court lacks jurisdiction to entertain the suit. It is against this decision that this appeal was lodged vide the Notice of Appeal filed on 26th April, 2018 with (3) three Grounds of Appeal.
The Record of Appeal was compiled and transmitted to this Court on the 8th May, 2018. Brief of Arguments were filed and exchanged in the following manner:
Appellant’s Brief of Argument dated 22nd May, 2018, was filed the same date. 1st Respondent’s Brief of Argument dated 14th September, 2020, was filed on the 21st September, 2020.
Counsel adopted their respective briefs of argument at the hearing of this appeal. The appellant in his Brief of Argument formulated two issues from grounds 1, 2 and 3 of the Notice and Grounds of Appeal, thus:
1. Whether in view of the Appellant’s unrebutted and uncontroverted plea and evidence that the Respondents acted maliciously and in bad faith, the lower Court was correct in dismissing his suit for being statute barred pursuant to Section 2(a) of the Public Officers Protection Act. (Ground Three).
2. In view of the legal requirement that the Appellant ought to exhaust available internal or administrative remedies before having recourse to litigation, whether the lower Court was right in its decision that the Appellant’s cause of action arose on 25th October, 2006 rather than 7th November, 2007 the 1st Respondent by letter communicated him a refusal to reinstate him. (Grounds One and Two)
The 1st Respondent in their Brief of Argument adopted the two issues formulated by the counsel for the appellant in the determination of this appeal. The two issues formulated by the appellant are hereby set down for the consideration of this appeal. I shall now start with issue one.
Issue One:
This issue is – Whether in view of the Appellant’s unrebutted and uncontroverted plea and evidence that the Respondents acted maliciously and in bad faith, the lower Court was correct in dismissing his suit for being statute barred pursuant to Section 2(a) of the Public Officers Protection Act.
Learned counsel for the appellant submitted that the lower Court erred in law when it dismissed the appellant’s suit on the ground that it contravened Section 2(a) of the Public Officers Protection Act.
This is because the Public Officers Protection Act does not protect Public Officers who acted maliciously or in bad faith. The appellant vividly pleaded and led evidence of malice and bad faith against the respondents. In paragraphs 19 and 37 of his Amended statement of fact, the appellant pleaded and subsequently in his evidence-in-chief led evidence of malice, arbitrariness and bad faith against the respondents. Counsel relied on the cases of Bendel Newspaper Corporation v. Okafor (1993) 4 NWLR (Pt. 289), Nwankwere v. Adewunmi 1 All NLR 129 at 133-134, Offoboche v. Ogoja L.G (2001) 16 NWLR (Pt. 739) 458 at 485 A-D, Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 589 C-G and Muhammed v. A.B.U Zaria (2014) 7 NWLR (Pt. 1407) 500 at 534 E-H.
In response, learned counsel for the 1st Respondent submitted that the appellant having alleged that the 1st respondent acted maliciously and in bad faith, failed to understand the provision of Section 2(a) of the Public Officers’ Protection Act as it affects the official duties of the public officer. Counsel relied on the cases of Kwara State Pilgrims Welfare Board v. Alhaji Jimoh Baba (2018) 9 NWLR (Pt. 1623) 36 SC, INEC v. Chief Godwin Enasito & 4 Ors (2018) 2 NWLR (Pt. 1602) 63 SC.
The issues involved in this appeal are not complex. Section 2(a) of the Public Officers Protection Act has been a legislation that has gone through the crucible of interpretation and application by our superior Courts of record. The law expressly and clearly stipulates as follows:
“Where any action, prosecution or proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged right or default in the execution of any such act, law, duty or authority, the following provision shall have effect. (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months, next after the act neglected or default, complained of or injury within three months next after ceasing thereof.”
In the case of Rahamaniya United (Nig.) Ltd v. Minister of FCT & Ors (2021) LPELR – 55633 (SC), the Supreme Court per Oseji, JSC, held that:
“Section 2(a) of the Public Officers Protection Act is intended to protect public officers from undue litigation in the course of the discharge of their official assignments. See Offoboche v. Ogoja Local Government (2000) 16 NWLR (Pt. 739) 458. It must however be reiterated that the provisions of the Public Officers Protection Act does not provide an impenetrable shield for public officers. The protection is not absolute, hence it does not apply to actions for recovery of land, breach of contract or claims for work and labour done. See Roe Ltd v. UNN (2018) LPELR – 43855 (SC), F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162 at 196, Wema Securities and Finance Plc v. NAIC (2015) I-PELR – 24833 (SC) at 64 – 65, Bakare v. Nigeria Railway Corporation (2007) 17 NWLR (Pt. 1064) 606. The defence of the Public Officers Protection Act can only avail Public Officers whose act in the course of the execution of their duty is without malice.”
What this signifies is the fact that a public officer protected by this law can lose his protection if his conduct is not completely devoid of malice and malafide. Malice and malafide are allegations that the Court must consider when raised sufficiently. This was expatiated upon more in the case of Dr. Mathias Oko Offoboche v. Ogoja Local Government & Anor (2001) LPELR – 2265 (SC), where the Supreme Court Per Ayoola, JSC, held:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law of such protection. The burden is on the plaintiff to establish that the defendant had abused the position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which power was granted, for example personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of libel for some indirect purpose. The law has been put thus: “If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.” See generally for this proposition and others described in like terms, Gatley on Libel and Slander (op cit) para 16 – 4 and cases cited therein. An inquiry whether there is express malice as would defeat a defence of qualified privilege proceeds on an assumption that the occasion was privileged. The misuse of the occasion is malice that destroyed the privilege.”
In the instant case, the appellant had in his statement of claim raised the allegation of malice, bad faith and arbitrariness. He pursued it in his evidence before the trial Court. The respondents did not counter these allegations in any form. When a party raises an issue or allegation in any case, it is the requirement of the law and the party’s right to fair hearing that the issue be set down and considered by the Court. The Court cannot waive the allegations aside neither can the respondents ignore the allegations and expect that the Court should hold in their favour. The trial Court in this case, did not show in its judgment that he considered the allegations of the appellant before saying that the case of the appellant was statute barred. By the failure of the trial Court to consider the allegation of malice and bad faith which was timeously raised by the appellant, the trial Court had breached the right of the appellant to fair hearing under Section 36 of the 1999 Constitution.
From the settled position of our law, the Public Officers Protection Law does not offer automatic protection to all public officers. The public officer must be qualified to enjoy the protection before he can earn the protection. The application of the Public Officers Protection Law requires that the person seeking protection is:
(a) a public officer;
(b) that he acted in pursuance or in execution or intended execution of a law or public duty or authority; and
(c) that his action was not tainted by malice or abuse of office.
See – Hassan v. Aliyu & Ors. (2010) 17 NWLR (Pt. 1223) 547.
In our law of evidence, he who dare to assert must prove his assertion as required.
It is also in tandem with our procedural law that any pleading that is not countered is deemed admitted by the respondent. Since the allegations of malice and abuse of office raised were not countered, the only conclusion is that the respondents have accepted the assertion of the appellant. The trial Court was therefore wrong to hold that the action was statute-barred without any justifiable reason in the face of many decisions of the Supreme Court on this issue.
This issue is therefore, resolved in favour of the appellant.
Issue Two:
This issue is – In view of the legal requirement that the Appellant ought to exhaust available internal or administrative remedies before having recourse to litigation, whether the lower Court was right in its decision that the Appellant’s cause of action arose on 25th October, 2006 rather than 7th November, 2007 the 1st Respondent by letter communicated him a refusal to reinstate him.
Learned counsel for the appellant submitted that cause of action accrues when all facts have happened which are material to be proved to entitle the claimant to succeed. Counsel relied on the cases of Obaseki v. Orukwo (2007) 17 NWLR (Pt. 1068) 138, Nigerian Port Authority v. Ajobi (2006) 13 NWLR (Pt. 998) 477, Lamidi v. Ojo (2004) 21 WRN 126 at 142 Lines 40- 45.
Learned counsel further submitted that the appellants’ action commenced within three months of exhaustion of administrative remedies for his reinstatement cannot be said to be caught by the Public Officers’ Protection Act. This is because the administrative appeals embarked upon by the Appellant was mandated by the public service rules as a condition precedent to commencement of action for redress in Court. The administrative appeals embarked upon by the Appellant were therefore events necessary for the accrual of the Appellant’s cause of action. Counsel relied on the cases of Sunday Eguamwense v. James Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 25, Mr. Oladiti v. Alhaji Abidoye & Anor (1999) 12 SCNJ 16. Counsel urged the Court to allow the appeal.
In response, learned counsel for the 1st Respondent submitted that it is necessary to state that the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute or for prohibiting settlements to be made, notwithstanding that the statutory limitation period continues to run. Counsel relied on the case of Isaac Samuel Yarai v. Modibbo Adamawa University of Technology Yola (2016) All FWLR (Pt. 342) 1482 CA. Counsel urged the Court to uphold the judgment of the lower Court and dismiss the appeal.
Let me start this issue two by pointing out that the appellant who is a civil servant is governed by the laws of his employment. The Public Service Rules, 2007, as pointed out in the appellant’s brief is applicable to him. Section 2, paragraph 090201 (ii) of the Rules requires that officers should exhaust all avenues provided in the Public Service Rules and Circulars for redress before proceeding to the Courts. The appellant heeded this Regulation and wrote a Letter to protest his retirement and sought for redress. His complaint was turned down and the 1st respondent wrote a letter on 7th November, 2007 to that effect. It is with all due respect a miscalculation on the part of the trial Court to hold that the cause of action arose in 2006 and not 7/11/2007. The time started running against the appellant from the date his administrative appeal was rejected from the circumstances of this case. The case of the appellant from the foregoing was still current when the appellant came to Court to initiate this case. This issue is accordingly resolved in favour of the appellant.
From the foregoing consideration, this appeal has merit. The appeal is hereby allowed. The Judgment of the trial Court is set aside. The case is sent back to the trial Court for retrial before another Judge of the Court.
HAMMA AKAWU BARKA, J.C.A.: My learned brother Stephen Jonah Adah JCA, graciously availed me a copy of the judgment just delivered in draft.
The reasoning and the conclusions reached aligned with my own reasoning and thereby the inevitable conclusion that the appeal being meritorious ought to and is hereby allowed by me.
I also agree that this is a case for which a retrial is desirous, so as to settle the matter in dispute. I accordingly remit the case to the President of the National Industrial Court for assignment to a judge other than the trial judge.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is hornbook law that where provision has been made in the law for the period within which to commence an action after the cause of action has accrued, then an action ought not to be brought after the prescribed period has elapsed. An action brought outside the prescribed period is offensive to the law and does not give rise to a cause of action. See OKO vs. A-G EBONYI STATE (2021) LPELR (54988) 1 at 25-26 and 57-58, HASSAN vs. ALIYU (2010) 17 NWLR (PT. 1223) 547 and BELLO vs. YUSUF (2019) LPELR (47918) 1 at 11. Nonetheless, the applicability of this trite principle of law on limitation of action admits of exceptions and where an exception applies, it will serve to preserve the claimant’s right of action. See CIL RISK & ASSET MANAGEMENT LTD vs. EKITI STATE GOVT (2020) LPELR (49565) 1 at 57-60.
The Appellant, who was the Claimant in the lower Court pleaded and adduced evidence that there was malice, bad faith and arbitrariness in the manner in which he was retired, as a result of which the limitation was unavailing. Sadly, the lower Court failed to consider if the said exception was applicable before it held that the action was statute barred, Undoubtedly, the law is designed to protect the officer who acts in good faith and it does not apply to acts done with malice and bad faith. An act done where the defendant acted maliciously, arbitrarily and in bad faith is not an act that is done within the terms of the statutory authority and the defendant would not be entitled to the protection of the limitation law. See NWANKWERE vs. ADEWUNMI (1966) 1 ALL NLR 129 at 133-134, LAGOS CITY COUNCIL vs. OGUNBIYI (1969) 1 ALL NLR 297 at 299 and OFFOBOCHE vs. OGOJA LOCAL GOVT (2001) LPELR (2265) 1 at 16-17.
Given the law in this regard, and the fact that the Respondents did not controvert or challenge the pleadings and testimony of the Appellant that his retirement was actuated by malice, bad faith and arbitrariness; the said exception availed the Appellant such that his action was not statute barred. The lower Court was consequently wrong when it held that the action was statute barred.
It is for the foregoing reason and the more elaborate reasoning and conclusion explicated in the leading judgment of my learned brother, Stephen Jonah Adah, JCA, which I was privileged to read in draft, that I also join in allowing this appeal and on the same terms as set out in the leading judgment.
Appearances:
J.C. Njikonye, SAN, with him Ayodele Arotiowa Esq., and Isaac Ita, Esq. For Appellant(s)
…For Respondent(s)