ATANDA v. KWASU (2020)

ATANDA v. KWASU

(2020)LCN/14690(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IL/17/2019

RATIO

INTERPRETATION: PRINCIPLES GUIDING THE CONSTRUCTION OF STATUTE

A Court of law is without power to import into the meaning of a word, clause or section of the statute that which it did not say. It is a corollary to the rule of literal construction that nothing is added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Where the literal interpretation of the provision of a statute will result in some ambiguity, to resolve the ambiguity or to avoid doing injustice in the matter, the Court will adopt an interpretation which will not defeat the intention of law makers. See Okumagba vs Egbe (1965) 1 All NLR 62; Berliet (Nig) Ltd vs kachalla (1995) 9 NWLR Pt. 420 P.478; Ogbuanyinya vs Okudo (1979) 6 SC 32; Awuse vs Odili (2004) All FWLR Pt. 212 P. 1664, (2004) 18 NWLR pt. 876 P.481; Bronik Motors vs Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296 and Ojukwu vs Obasanjo (2004) All FWLR Pt. 222 P.1666, (2004) 12 NWLR Pt. 886 P.169. PER BDLIYA, J.C.A.
WORDS AND PHRASES: MEANING OF A PERSON

The word ‘Person’ when used in legal parlance, such as in a legislation or statute connotes both a “Natural Person” and an artificial “person” such as a corporation or public bodies, corporate or unincorporated. The definition of “any person” in the Public Officers (Protection) Law cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated.
See Ibrahim vs J.S.C (1998) 14 NWLR Pt. 584 P.1 @ 363. PER BDLIYA, J.C.A.
PUBLIC OFFICER: WHO IS A PUBLIC OFFICER

In Aiyelabagen vs Local Government Service Commission, Ilorin & Anor (2015) All FWLR Pt. 802 P.1697 @ 1730, the Court of Appeal, when considering who is a public officer, espoused that public officer has by law been extended to include public department, artificial person, public office or a public body. By the provision of Kwara State Interpretation Law No. 4 of 2006, public officer or department invested with or performing duties of a public nature whether under the immediate control of the President or of the Governor of a State or not. A reference in any law to any public officer by the usual or common title of his office shall, if there be such an office customarily in Nigeria and unless the contrary intention appears, be read and construed as referred to the person for the time being holding or carrying out the duties of that office in Nigeria.
The respondent, University of Kwara State is a creation of statute that is, Kwara State University Law, 2008, No 13 of 2008. It is therefore a public officer as held in the case of Ibrahim vs J.S.C (1998) 14 NWLR Pt. 584 P.1 @ 45, where Iguh, JSC enunciated thus:
“I have repeatedly stressed that all the Court of Appeal cases which established that the Public Officer 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. In my view, the set of cases of the Court of Appeal which purports to have applied the decision in the Okewale cases were decided per incuriam and ought not to be allowed to stand. Speaking for myself and for all other reasons I have advanced earlier in this Judgment, I entertain no doubt that the decision of this Court in the Balogun case remains a good law. It seems to me that to hold that the Public Officers (Protection) Law only covers public officers as individuals or as natural persons only will tantamount to an amendment of the relevant law by the addition of the words ”as individuals”, after the words against “any person”.” PER BDLIYA, J.C.A.
PUBLIC OFFICER: INTERPRETATION OF SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION LAW

Uwais J.S.C (as he was then) in Ekeogu vs Aliri (1981) 3 NWLR pt. 179 P.238, when considering the provision of Section 2(a) of the Public Officers Protection Law, postulated thus:
“Giving the section its natural and ordinary meaning, it appears to me that it was designed to protect;
(a) A Public Officer.
(b) Against any action, prosecution or other proceeding and
(c) For any act done in pursuance or execution or intended execution of any law, or public duty or authority or
(d) For any alleged neglect or default in the execution or intended execution of any law, duty or authority.

The Public Officers Protection Act is so widely applied that apart from providing protection to public officers, it covers government institutions, Ministries, Departments and Agencies.”
Now, applying the principles of law in the decisions of the Apex Court in the cases of Ibrahim vs Judicial Service Commission and Ekeogu vs Aliri supra, the respondent in the instant appeal before us qualifies as a public officer within the purview of the provision of Section 2(a) of the Public Officers Protection Law, Kwara State. As to whether the provisions of Section 2(a) of the Public Officers Protection Law, can be resorted to where the subject-matter of the litigation involves the dispute of termination of contract of employment, as in the instant appeal when same was litigated at the lower Court, the answer can be found in the case of Sunday vs Chief of Air Staff (2016) 1 NWLR Pt.1494 P.615 P. 624-625, wherein this Court when dealing with the vexed question whether the provisions of Section 2(a) of the Public Officers Protection Law, can be applied in a dispute involving termination of appointment/employment espoused that:
“Contrariwise, in the case of the Nigerian Broadcasting Corporation (NBC) v. Bankole (1972) 7 NSCC 220, the respondent, a staff of the appellant, brought an action to challenge his purported dismissal outside the 2 months prescribe by Section 61(1) of the Nigerian Broadcasting Act. The Supreme Court held that the action, on contract of employment, was statute-barred. Also, in the case of Ibrahim v. J.S.C. Kaduna (1998) 14 NWLR (Pt. 584) 1, the action involved a contract of employment and the provision of Section 2(a) of the Act was held applicable to it. Then, the case of Bakare v. N.R.C. (2007) 17 NWLR (Pt. 1064) 606 was rooted in contract of employment. It involved the interpretation of the limitation provision in Section 83(1) of the Nigerian Railway Corporation Act. At the behest of the appellant a full Supreme Court was constituted. It confirmed, with the air of finality, that contracts of employment were amenable to limitation law. The recent cases of Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 and Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (pt. 1366) 546 touched on contracts of employment and the Supreme Court indicated that limitation laws are applicable to them. Indeed, in the most recent case of Yare v. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367) 173, the provision of Section 2(a) of the Act was deployed, by the Supreme Court, to annihilate the appellant’s case which was a contract of employment.”
However, of recent, in the most recent case of NRMA & FC vs Johnson (2019) 2 NWLR pt 1656 P.247 @ 270, Ariwoola JSC considering the applicability of the provisions of Section 2(a) of the Public Officers Protection Law, whether it applies to disputes involving contract of service or contract of employment, held that:
“Generally, the law is that, where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action that is brought after the prescribed period is said to be statute barred. See; Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1.
In this matter, while the appellants maintain that the action is caught by Section 2(a) of the Public Officers Protection Act, the respondents argue that the act is inapplicable.
There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law, that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construzioni General, Farsura Cagefar Spa &Anor (1974) 1 All NLR (Pt. 2) 463; Osun State Government v. Dalami Nigeria Ltd (2007) 9 NWLR (Pt. 1038) 66; (2007) 2 SC (Pt. 1) 131; (2007) 6 SCM 145; (2007) LPELR – 2817. PER BDLIYA, J.C.A.

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Between

DAVID OLAYEMI ATANDA APPELANT(S)

And

KWARA STATE UNIVERSITY RESPONDENT(S)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Ilorin Division (the lower Court) delivered on the 17th day of November 2017, in suit No: NIC/IL/03/2011; by Justice O.O Oyewumi. The facts of the events leading to the institution of the case, suit at the lower Court culminating to this appeal are single and straightforward. By a General Form of Complaint filed on the 11th day of April 2017, the appellant (as claimant) sought the following reliefs:
i. A declaration that the Defendant acted ultra vires of its power when it assumed power to investigation allegations leveled against the Claimant when the said allegations are substantially criminal in nature.
ii. A declaration that the proceedings and procedure leading to the purported termination of the Claimant’s employment having violated the sacred principle of natural justice is unconstitutional and thereby null and void.
iii. A declaration that the allegation leveled against the Claimant having not been supported by evidence is speculative, unfounded, unproven and subsequent termination of

the Claimant’s employment is cruel, inhuman, degrading, callous, wicked, malicious, in bad faith, illegal and unlawful.
iv. An order reversing and/or setting aside the said purported termination of the Claimant’s employment and reinstating the Claimant to his due position.
v. An order directing the defendant forthwith to pay to the Claimant all his due entitlement from January, 2017 till date of the judgment of this Honourable Court.
vi. An order directing the defendant to pay the sum of N10,000,000.00 (Ten Million Naira) as general damages.
vii. An order directing the Defendant top pay to the Claimant the total sum of N2,000,000.00 (Two Million Naira) being the legal; fees and cost incurred in prosecution this case. (See pages 1 – 31 of the Records of Appeal).

Pleadings were filed and exchanged between the appellant and the respondent (then claimant and defendant). At the hearing of the suit on the 31st day of May, 2017, the lower Court ordered the parties to file written address on the competence or otherwise of the said suit, having regard to the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State.

The respondent (as defendant) filed written address on the 6th of June, 2017, wherein it argued that the suit of the appellant is incompetent being statute barred. The appellant (as the claimant) upon being served with the respondent’s written address filed his written address on the 7th of June, 2017 and contended that the provision of Section 2(a) of the Public Officers Protection Law, Kwara State, is not applicable to the said suit because the dispute involved contract of employment, therefore, same cannot be statute barred. The respondent filed a Reply written address in response to the written address of the appellant. The parties adopted their written addresses before the lower Court.

On the 17th day of November, 2017, the learned judge of the lower Court delivered her ruling, wherein, it was held that the suit filed by the appellant (as claimant) is statute barred under the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State, and in consequence dismissed same. Aggrieved by the decision of the learned Judge of the lower Court, a Notice of Appeal challenging the ruling was filed on the 15th of

February, 2018. The Notice of Appeal and their particulars are as follows as contained on pages 77 to 78 of the printed record of appeal:
GROUNDS OF APPEAL
A. The learned trial judge erred in law when he held that Section 2 of the Public Officers Protection Law of Kwara State is applicable to the Claimant suit in view of the subject matter being a contract of employment.
PARTICULAR
1. The Claimant/Appellant was an employee of the Defendant /Respondent University.
2. The Claimant/Appellant’s appointment with the Defendant/Respondent was unlawfully terminated.
3. The relationship between the Claimants/Appellant and defendant/Respondent was one of contract of employment.
4. Contract of employment is one of the exemptions to Public Officers Protection Law of Kwara State.
B. The learned trial judge erred in law when he held that Claimant’s suit is incompetent and statute barred.
PARTICULARS
(i) Upon the termination of the Appellant’s appointment by the respondent, the appellant exhausted an internal mechanism by lodging an appeal to the Respondent praying for the reversal of his

termination of appointment in compliance with the Regulation of the Respondent.
(ii) The Appellant also served on the Respondent a written notice to commence an action against it as enjoined by Section 39 of the Kwara State University Law.
(iii) The action of the Appellant is competent and not statute barred having complied with all these requirements.

The appellant sought the following reliefs in the event of allowing the appeal:
(i) An order of this Honourable Court allowing this appeal;
(ii) An order setting aside the judgment of the trial Court delivered on the 17th day of November, 2017 which dismissed the claimant’s case; and
(iii) Such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

The appellant’s brief of argument was filed on the 25th day of April, 2019. On page 4 thereof, two (2) issues for determination in the appeal have been distilled out of the grounds of appeal. The respondent’s brief of argument was filed on the 24th of January, 2020 out of time, which was deemed properly filed and served on the 14th of September 2020. On pages

2-3 thereof, two (2) issues for determination in the appeal have been culled out of the grounds of appeal, which are not dissimilar to the issues contained in the appellant’s brief of argument. The appellant, in response to the arguments canvassed in the respondent’s brief of argument, filed a Reply brief on the 11th of September, 2020, which have been deemed properly filed on the 14th of September, 2020.

As earlier allude to in this judgment, the issues for determination in the appeal which are contained in the appellant’s brief and the respondent’s briefs of argument are not dissimilar, such that one set of issues cannot be resolved without delving into the other, therefore, for precision, clarity, comprehension ability and brevity, the issues contained in the appellant’s brief of argument are hereunder taken to be resolved in the determination of the appeal. Afterall, it is the appellant who has appealed against the ruling of the lower Court. The respondent, having not appealed, is only to respondent to the appeal filed by the appellant.
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ISSUES FOR DETERMINATION IN THE APPEAL
Issue One (1)
Whether the learned judge of the lower Court was right when he held that Section 2(a) of the Public Officers Protection Law, Kwara State, is applicable to render suit No: NIC/IL/03/2017 filed by the appellant incompetent? (Ground 1)
Issue Two (2)
Whether having regard to the time of accrual of the cause of action, suit No: NIC/IL/03/2017 is statute barred having regard to the dates which the cause of action arose and the date the suit was filed at the lower Court? (Ground 2)

Issues 1 and 2 are taken together.
Submissions of counsel
On the first issue, Olumide Abifarin Esq., of learned counsel, who settled the appellant’s brief of argument, submitted that the subject-matter of suit No: NIC/IL/03/2017, is one of contract of employment, which is “sui generis” in nature, which is one of the exceptions to the applicability of the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State. It is learned counsel’s further contention that the employment of the appellant has statutory favour because it is governed by the provisions of the Kwara State University Law and the Kwara State University

Senior Staff Conditions of services. On the provisions of Section 2(a) of the Public Officers Protection Law Kwara State, it is learned counsel’s submissions that same is not absolute in that it is not applicable to certain actions, such as contract of employment, recovering of land, breach of contract, amongst others as enunciated in the decisions of the Superior Courts, such as Aiyelabegan vs Local Government Service Commission, Ilorin & Anor (2015) All FWLR Pt. 802 P.1697 @ 1730; University of Calabar Teaching Hospital & Anor vs J.K Bassey (2008) LPELR-CA 3152008 P.36-39 and Hassan & Ors vs Borno State Government & Ors (2016) LPELR-40250 (CA). The case of Alao vs Vice Chancellor, Unilorin (2008) 1 NWLR Pt. 1069 P.4211 @ 451, has been cited to reinforce the submissions supra. In view of the foregoing adumbration, learned counsel did urge the Court to resolve the issue in contention in favour of the appellant and to hold that the suit instituted by the appellant cannot be rendered incompetent by the provision of Section 2(a) of the Public Officers Protection Law, Kwara State.

On issue 2, Olumide Abifarin Esq., of learned

counsel, did submit that the Public Officers Protection Law cannot regulate the resolution of dispute arising from contract of employment, rather, it is the terms of the employment per the letter of appointment, conditions of service; the statute creating the employment and the limitation law applicable.

Learned counsel referred to the decisions of the Courts in the cases of Garba vs Shuaibu (2001) All FWLR Pt.56 p.715 @ 731 and Agboola & Ors vs Gabriel Saibu (1991) NWLR Pt.175 P.566, and submitted that the lower Court ought to have been guided by same in the determination of the appellant’s case before it rather than applying the provision of Section 2(a) of the Public Officers Protection Law, Kwara State in arriving at its decision that the suit was statute barred and dismissed same.

Even if the Public Officers Protection Law is applicable, learned counsel pointed out, the suit filed by the appellant was within the period of 3 months, having been filed on the 11th day of April, 2017, the cause of action having accrued on the 11th day of April 2017, after exhausting all the conditions precedent contained in the University of Kwara State

Law and the conditions of service for Senior Staff as provided by paragraph 8:3 of Chapter 8 of the Kwara State University Condition of Service and Regulations of senior staff as well as Section 39 of the University of Kwara State Law.

On how to determine when a cause of action arose or accrued under limitation law, learned counsel cited and relied on the principles of law espoused in the cases of Ajayi vs Adebiyi (2012) 11 NWLR Pt.1310 P.146; Archibong vs A.G Akwa Ibom State (2015) 6 NWLR Pt.1434 and Udoh Trading Co. Ltd vs Abere (2007) 5 SCNJ P.284 @ 288 and contended that, had the learned judge of the lower Court adverted his mind to same, he would not have arrived at the decision he took in deciding the appellant’s suit being statute barred under Section 2(a) of the Public Officers Protection Law, Kwara State. On page 14 of the appellant’s brief of argument, learned counsel concluded the arguments canvassed in support of the appeal as follows:
(i.) That Section 2 of the Public Officers Protection Law of Kwara State is not applicable to his suit owing to the fact that the subject of this appeal one of contract of employment;

(ii.) That the Respondent is a Public institution but not a Public Officer;
(iii.) That the essence of Public Officers Protection Law is to protect public officers as individuals in the discharge of their duties but not a public institution like the Respondent in this appeal.
(iv.) That this suit is competent and not statute barred having been filed within 6 years period provided for in Section 19 of Kwara State Limitation Law, or even within a month of the fulfillment of conditions precedent to bringing an action.

Learned counsel did urge that issue 2 be resolved in favour of the appellant.

For the respondent, A.F Isau Esq., of learned counsel who settled the brief of argument, argued that the purport of the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State, is that any action against any public officer or entity recognized as public office must be commenced or instituted within 3 months of the accrual of the cause of action, if not, such action will be incompetent being statute barred, therefore, cannot be maintained in a Court of law as propounded or postulated in the cases of Eboigbe vs NNPC (1994) 5 NWLR Pt.347

645 @ 659; Fred Egbe vs M.D Yusuf (1992) LPELR-1035; Egbe vs Adefarasin (1985) 1 NWLR Pt. 3 P.549 @ 569 and Shell Petroleum Dev. Co. vs Farab (1995) 3 NWLR Pt. 382 P.148 @ 156.On the status of the respondent under Section 2(a) of the Public Officers Protection Law, Kwara State, learned counsel submitted that being a creation of the Kwara State University Law, No 13 of 2008 and the principles of the law espoused in the case of Ibrahim vs J.S.C (1998) 14 NWLR Pt. 587 P.1 @ 45, the respondent is a public officer for purpose of Section 2(a) of the Public Officers Protection Law, Kwara State. The provisions of Section 3 of the Interpretation Act, Laws of the Federation, 2004 and the definition of a Public Officer therein have been cited and relied on to reinforce the contention that the respondent is a public officer.
It is learned counsel contention that the respondent is a public officer and the provision of Section 2(a) of the Public Officers Protection Law, Kwara State is applicable to any action instituted against it. Learned counsel referred to and relied on the decisions of the superior Courts in Oyadare vs Adeyemi College of Education Ondo

(2017) LPELR-43219; Sunday vs Chief of Air Staff (2016) 1 NWLR Pt.1494 P.615 P. 624-625 and Nweke vs Unizik Awka (2017) 18 NWLR Pt. 1598 P.454 @ 484 to reinforce the submissions supra.

In conclusion, learned counsel did urge that issue 1 be resolved against the appellant because by the decision of the Apex Court, the Court of Appeal and most recent case of NRMA & FC vs Johnson (2019) 2 NWLR pt 1656 P.247 @ 278 & 271, the provision of Section 2(a) of the Public Officers Protection Law, Kwara State, is applicable to contract of employment, amongst others.

On issue 2, A.F Isau Esq., of learned counsel, made extensive and elaborate submissions on pages 7 to 12 of the brief of argument, citing decisions of the Apex Court and this Court to support the position of the respondent that the suit instituted by the appellant is statute barred, having not been commenced within the 3 months prescribed in Section 2(a) of the Public Officers Protection Law, Kwara State. Specifically, learned counsel referred to paragraph 1 of the statement of Claim (facts) on page 1 of the record of appeal and pointed out that it was averred that the appellant’s

appointment was terminated on the 10th of October, 2016, whereas, the suit was filed on the 11th of April, 2017. Learned counsel did contend that by simple arithmetic, the period from 10th of October, 2016 to the 11th of April, 2017 is more than 3 months, which clearly exceeds the period prescribed for in Section 2(a) of the Public Officers Protection Law, Kwara State. It is learned counsel’s further submission that any suit or action instituted against a public officer for the breach or violation committed while performing an official duty, is statute barred by virtue of the provision of Section 2(a) of the Public Officers Protection Law, Kwara State. The principles of law espoused in the case of John Ekeogu vs Elizabeth Aliri (1991) 3 NWLR Pt. 179 was cited and relied on to buttress the submission supra.

As to whether the respondent is a public officer or not within the purview of the law, learned counsel cited Section 2(a) of the University of Kwara State, wherein who is a public officer has been spelt out and contended that by this definition, the respondent qualified as legal entity to sue or be sued in a Court of law. On when a cause of action

arises or accrues entitling a person to institute any action, learned counsel submitted that time begins to run the moment the act complained of accrued or taken place. The principles of law enunciated in the case of Sanni vs Okene Local Government (2005) 14 NWLR Pt. 944 P.60 @ 74; Ogoja Local Government vs Offobuche (1996) 7 NWLR Pt. 458 P.48 @ 57 and Sanda vs Kukawa Local Government (1991) 2 NWLR pt. 174 P.379 were cited and relied on to reinforce the submissions supra.

Responding to the arguments canvassed in the respondent’s brief of argument, on pages 1 to 7 of the Reply brief, learned counsel did submit that by the most recent decision of the Apex Court, the provision of Section 2(a) of the Public Officers Protection Law, Kwara State, is applicable to dispute involving contract of employment as espoused in the case of NRMA & FC vs Johnson (2019) 2 NWLR pt 1656 P.247 @ 269. In view of the recent decision referred to supra, learned counsel urged this Court to discountenance all other previous decisions of the Apex Court and this Court wherein it was held that dispute involving contract of employment are not subject to the provision of

Section 2(a) of the Public Officers Protection Law, Kwara State.

RESOLUTION OF ISSUES
Is the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State, applicable to suit No: NIC/IL/03/2017 which was instituted by the appellant against the respondent? Section 2(a) of the Public Officers Protection Law, Kwara State, reads:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuant or execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision shall have effect-
Limitation of time – the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within 3 months next after the ceasing thereof.
Provided that if the action, prosecution, or proceeding be at the instance of any person for cause or action arising while such a person was a convict prisoner, it may be commenced within

three months after the discharge of such person from prison.” (Underlining for emphasis)
Section 2(a) of the Public Officers Protection Law, Kwara State, is a statutory provision, where the words of a statute are clear and unambiguous, they should be construed as to give effect to their natural meaning. A Court of law is without power to import into the meaning of a word, clause or section of the statute that which it did not say. It is a corollary to the rule of literal construction that nothing is added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Where the literal interpretation of the provision of a statute will result in some ambiguity, to resolve the ambiguity or to avoid doing injustice in the matter, the Court will adopt an interpretation which will not defeat the intention of law makers. See Okumagba vs Egbe (1965) 1 All NLR 62; Berliet (Nig) Ltd vs kachalla (1995) 9 NWLR Pt. 420 P.478; Ogbuanyinya vs Okudo (1979) 6 SC 32; Awuse vs Odili (2004) All FWLR Pt. 212 P. 1664, (2004) 18 NWLR pt. 876 P.481; Bronik Motors vs Wema Bank Ltd

(1983) 6 SC 158, (1983) 1 SCNLR 296 and Ojukwu vs Obasanjo (2004) All FWLR Pt. 222 P.1666, (2004) 12 NWLR Pt. 886 P.169.
The word ‘Person’ when used in legal parlance, such as in a legislation or statute connotes both a “Natural Person” and an artificial “person” such as a corporation or public bodies, corporate or unincorporated. The definition of “any person” in the Public Officers (Protection) Law cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated.
See Ibrahim vs J.S.C (1998) 14 NWLR Pt. 584 P.1 @ 363.
In Aiyelabagen vs Local Government Service Commission, Ilorin & Anor (2015) All FWLR Pt. 802 P.1697 @ 1730, the Court of Appeal, when considering who is a public officer, espoused that public officer has by law been extended to include public department, artificial person, public office or a public body. By the provision of Kwara State Interpretation Law No. 4 of 2006, public officer or

department invested with or performing duties of a public nature whether under the immediate control of the President or of the Governor of a State or not. A reference in any law to any public officer by the usual or common title of his office shall, if there be such an office customarily in Nigeria and unless the contrary intention appears, be read and construed as referred to the person for the time being holding or carrying out the duties of that office in Nigeria.
The respondent, University of Kwara State is a creation of statute that is, Kwara State University Law, 2008, No 13 of 2008. It is therefore a public officer as held in the case of Ibrahim vs J.S.C (1998) 14 NWLR Pt. 584 P.1 @ 45, where Iguh, JSC enunciated thus:
“I have repeatedly stressed that all the Court of Appeal cases which established that the Public Officer 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. In my view, the set of cases of the Court of Appeal which purports to have applied the decision in the Okewale cases were decided

per incuriam and ought not to be allowed to stand. Speaking for myself and for all other reasons I have advanced earlier in this Judgment, I entertain no doubt that the decision of this Court in the Balogun case remains a good law. It seems to me that to hold that the Public Officers (Protection) Law only covers public officers as individuals or as natural persons only will tantamount to an amendment of the relevant law by the addition of the words ”as individuals”, after the words against “any person”.”
Uwais J.S.C (as he was then) in Ekeogu vs Aliri (1981) 3 NWLR pt. 179 P.238, when considering the provision of Section 2(a) of the Public Officers Protection Law, postulated thus:
“Giving the section its natural and ordinary meaning, it appears to me that it was designed to protect;
(a) A Public Officer.
(b) Against any action, prosecution or other proceeding and
(c) For any act done in pursuance or execution or intended execution of any law, or public duty or authority or
(d) For any alleged neglect or default in the execution or intended execution of any law, duty or authority.

Nigerian Broadcasting Corporation (NBC) v. Bankole (1972) 7 NSCC 220, the respondent, a staff of the appellant, brought an action to challenge his purported dismissal outside the 2 months prescribe by Section 61(1) of the Nigerian Broadcasting Act. The Supreme Court held that the action, on contract of employment, was statute-barred. Also, in the case of Ibrahim v. J.S.C. Kaduna (1998) 14 NWLR (Pt. 584) 1, the action involved a contract of employment and the provision of Section 2(a) of the Act was held applicable to it. Then, the case of Bakare v. N.R.C. (2007) 17 NWLR (Pt. 1064) 606 was rooted in contract of employment. It involved the interpretation of the limitation provision in Section 83(1) of the Nigerian Railway Corporation Act. At the behest of the appellant a full Supreme Court was constituted. It confirmed, with the air of finality, that contracts of employment were amenable to limitation law. The recent cases of Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 and Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (pt. 1366) 546 touched on contracts of employment and the Supreme Court indicated that limitation laws are applicable to them. Indeed, in the

most recent case of Yare v. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367) 173, the provision of Section 2(a) of the Act was deployed, by the Supreme Court, to annihilate the appellant’s case which was a contract of employment.”
However, of recent, in the most recent case of NRMA & FC vs Johnson (2019) 2 NWLR pt 1656 P.247 @ 270, Ariwoola JSC considering the applicability of the provisions of Section 2(a) of the Public Officers Protection Law, whether it applies to disputes involving contract of service or contract of employment, held that:
“Generally, the law is that, where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action that is brought after the prescribed period is said to be statute barred. See; Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1.
In this matter, while the appellants maintain that the action is caught by Section 2(a) of the Public Officers Protection Act, the respondents argue that the act is inapplicable.
There is no doubt, a careful reading of the respondents’ claim will show clearly

that it is on contract of service. It is now settled law, that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construzioni General, Farsura Cagefar Spa &Anor (1974) 1 All NLR (Pt. 2) 463; Osun State Government v. Dalami Nigeria Ltd (2007) 9 NWLR (Pt. 1038) 66; (2007) 2 SC (Pt. 1) 131; (2007) 6 SCM 145; (2007) LPELR – 2817.
In dealing with this issue, the Court below had found that a party’s right of action and access to relief cannot be extinguished on the basis of the Public Officers Protection Act as it does not apply to cases of contract. The Court below went further as follows:
“Assuming that the appellants had that statutory cover of the Public Officers Protection Act, it has to be restated at the risk of over flogging a legal principle that certain factors would debar that operation of the Act…
Abuse of office will deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Act. … [2019] 2 NWLR N.R.M.A. & F. C. v. Johnson (Ariwoola, J.S.C.) 271.
Officers (Protection) Law is use of power to

achieve ends other than those for such power was granted, for example, for personal gain or to show undue favour for another or to wreak vengeance on an opponent.”
The Court below finally concluded that the appellants are not covered by the provisions of the Act as to render the action’ statute barred.
I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred.
In sum, I hold that the learned Justices of the Court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents. This issue is accordingly resolved against the appellants.”
Aka’ahs J.S.C, on page 279 of the judgment referred to supra held thus:
“Since the action instituted by the respondent is a contract of employment, the Public Officer Protection Law cannot be involved to bar the action undertaken by the plaintiffs/respondents. The main appeal therefore fails and it is dismissed.”

It appears to me that the decision of the Apex Court in the cases of Ibrahim vs J.S.C (1998) 14 NWLR Pt. 584 P.1 @ 45 and Ekeogu vs Aliri (1981) 3 NWLR pt. 179 P.238 are in conflict with its recent decision in the case of NRMA & FC vs Johnson (2019) 2 NWLR Pt. 1656 P.247 @ 270 -271. The law is trite, where there are conflicting decisions of the Court, the latter in time prevails. This preposition of the law has support in the case of Alao vs V.C Unilorin (2008) 1 NWLR Pt. 1069 P.421 @ 450, wherein Sankey J.C.A faced with similar problem, espoused that:
I am also not unmindful of the decision of the Supreme Court in the case of Adigun v. Ayinde (supra) at page 533. There, the Court, in interpreting Section 2(a) of the Public Officers (Protection) Law, Cap. III, Laws of Niger State held that it applied without exception to “any action”. However, with due respect and deference to this decision, the law is that, where there are conflicting judgments of Courts of equal jurisdiction, the rule is that the decision later in time prevails. See Mkpedum v. Udo (supra). Since therefore the

decision of the same Court in FGN v. Zebra Energy Ltd. (supra) decided in 2002 is later in time to the decision in Adigun v. Ayinde (supra), it prevails.
The decision of the Apex Court in the case of NRMA & FC vs Johnson (2019) 2 NWLR pt 1656 P.247 @ 270, is latter in time vis-à-vis the decision in the case of Ibrahim vs J.S.C and Ekeogu vs Aliri supra. I am therefore, by the doctrine of stare decisis (precedent) bound by the latter decision of the Apex Court. By the decision in the case of NRMA & FC vs Johnson supra, the provision of Section 2(a) of the Public Officers Protection Law, Kwara State, cannot be applied to suit No: NIC/IL/03/2017, to render it statute barred, as held by the learned judge of the lower Court. The provisions of Section 2(a) of the Public Officers Protection Law, Kwara State, is therefore not applicable to the suit No: NIC/IL/03/2017, instituted by the appellant at the lower Court.
Whether suit No: NIC/IL/03/2017, is statute barred, therefore incompetent? On pages 67 to 74 of the printed record of appeal is the ruling of the learned judge of the lower Court. Specifically, on pages 73 to 74, the learned judge

of the lower held thus:
“Having held that the claimant case is outside the period of three months, what are his right if any? The law is long settled that a limitation law removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and leaves him with a bare empty cause of action which he cannot enforce if the alleged cause of action is statute-barred, that is, if such a cause of action is instituted outside the statutory period allowed by such law as it is in this case which is within three months is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or injured person to commence the action would have been extinguished by such law. See A.G Adamawa State & Ors vs A.G of Federation (2014) LPELR, 23221 SC; Ibrahim vs Judicial Service Committee Kaduna State (1998) 14 NWLR Pt. 584 P.1, differently, put any action instituted by the claimant after the statutory period of three (3) months has robbed him of his right to judicial reliefs or enforcement, in other words his right to ventilate his grouse is extinguished.

It is consequent upon all the reasons above, that this matter, i.e suit No: NIC/IL/03/2017 is statute barred and thus dismissed having divested this Court of its jurisdiction to entertain same.”

Was the learned judge of the lower Court right in arriving at the decision supra. Section 2(a) of the Public Officers Protection Kwara State provides thus:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect:-
Limitation of time: the action prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
What are the principles of law that guide the Court in determining whether a suit is statute barred or not? In Agi vs Eno (2010) 5 NWLR Pt. 1188 P.626

@ 641, the Court held that it is the cause of action as determined from the originating process and the statement of claim that are relevant in the determination of whether a suit is statute-barred. An essential part of the cause of action is that of its accrual, and as a general, rule, a Court cannot go outside the originating process and the statement of claim, to determine the accrual of the cause of action.
The documents the Court considers in determining whether an action is statute-barred or not, are the writ of summons and the statement of claim, or the originating summons and the affidavit in support. The Court considers these documents to determine when the alleged wrong was committed, i.e the cause of action, and when the action was commenced which are the requirement in determining a limitation period. See Adigun vs Ayinde (1993) 8 NWLR Pt. 313, 516. See also CAC vs Governing Council of ITF (2015) 4 NWLR Pt 1439 P.114 @ 131.
Where the plea that an action is statute-barred is raised before trial, the Court is to determine when the cause of action arose and when the suit was filed. The Court must decide by looking at the statement of claim

for the date when the cause of action arose, and the writ of summons for date when the action was filed. No other process can be considered. The defendant must rely on the date pleaded by the plaintiff rather than the date pleaded in the statement of defence, unless the date when the cause of action arose is admitted by the plaintiff in his reply. See Adeyemi vs Opeyori (1976) 9 – 10 S.C 31; Izeikwe vs Nnadozie (1953) 14 WACA 361; Aremo II vs Adekanye (2004) 13 NWLR Pt. 891 P.572 and Woherem vs Emereuwa (2004) 13 NWLR Pt. 890 P.398.
See also Kasandubu & Anor vs Ultimate Pet. Ltd (2008) 7 NWLR Pt. 1086 P.274 @ 297.
In determining whether a suit is statute barred or not, the time the cause of action arose or accrued and the time the suit has been filed or instituted are to be ascertained by looking at the pleadings contained in the statement of claim. In Chief Ikine vs Chief Edjerode (2002) FWLR Pt. 92 P.1775 @ 1795, the Supreme Court enunciated that in dealing with limitation of action by statutory provision, the precise date when the cause of action arose or accrued must be determined. The time from which the bar of an action begins to run is

measured by years, months and dates, that is, from the date the cause of action arose. See CAC v. Governor Council ITF (2015) 1 NWLR (Pt. 39) P. 114 @ 131 and JALLCO Ltd v. Owoniboys Tech Service Ltd (1995) 4 NWLR (Pt. 391) P. 534. The test for determining when a cause of action begins to run is when there exist, in favour of the person who can sue, all the facts that have happened, which are required to prove that the plaintiff is entitled to judgment. That notwithstanding, a cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another, and it is always the totality of the facts of the case, which give rise to a right of action, thus entitling a person to a judicial relief.
The yardstick for determining whether a suit or action filed before a Court of law is statute barred or not has been spelt out in the case of Ajayi vs Adebiyi (2012) 11 NWLR pt.1310 P.146, which are:
(i) The date when the cause of action accrued:
(ii) The date of commencement of the suit as indicted on the writ of summons (in this case the Complaint and

Statement of fact); and
(iii) The period of time prescribed to bring an action to be ascertained from the statute in question. On the determination of when a cause of action arises or occurs giving an aggrieved person the legal right to commence a suit before a Court of law, Garba JCA espoused in the case of Archianga vs A.G Akwa-Ibom State (2015) 6 NWLR Pt. 1454 P. 1 @ 55, that:
“In law, the period of limitation begins to run from the date on which the right or cause of action accrued to the party entitled to it and against another who is responsible for the grievance in respect of which cause of action arises. To determine whether an action or cause of action is statute barred, all that is required for the Court to do is to examine the writ of summons or other initiating process of action and the statement of claim wherein the facts as to the dates when the wrong complained of and giving rise to the cause of action was committed and then comparing it with the date on which the writ of summons or other processes initiating the action was filed. If the date on which the action was initiated was beyond the time or period prescribed, and

limited by Limitation law, then the action is statute barred by the law and so it cannot be maintained.”

In determining the date the cause of action arose or accrued and the date suit No: NIC/IL/03/2017 was commenced before the lower Court, a resort to the pleadings of the appellant (as the claimant) is pertinent at this juncture. Paragraphs 14, 15, 19, 20, 23, 24, 25 and 26 of the statement of claim which are located on pages 2 and 3 of the printed record of appeal are reproduced hereunder:
“(14.) Curiously too, despite the claimant’s insistence and proof of his innocence, the defendant causes the claimant’s appointment to be terminated vide a letter dated 10th of October, 2016 with reference number KWASU/ASSE/PF/454/VOL1/48. A copy of the said letter is pleaded and the defendant is given notice to produce the certified true copy of same.
(15.) The claimant avers that, as an employee of the defendant and by the term of his appointment contained in the letter of appointment, he ought to be given either 3 months-notice of the job termination or payment in lieu of the notice.
(18.) The claimant states that after he

received the letter terminating his appointment, he sought an audience with the Vice Chancellor of the defendant and he actually met with the said Vice Chancellor on Sunday 23rd October, 2016 at about 6pm at the Vice Chancellor lodge whereat the claimant was told to go and appeal the decision to terminate his appointment.
(19.) The claimant thereafter appealed to the defendant’s council and the Vice Chancellor vide a letter dated 25th October, 2016 for the vacation of the decision to terminate his appointment. A copy of the said letter is pleaded and the defendant is hereby given notice to produce the certified true copy of same at the trial of this case.
(20.) The claimant avers that despite live issues raised in his appeal, he was further served a letter dated 3rd of January, 2017 with reference number KWASU/ASSE/PF/454/54 stating that the claimant’s appeal has been turned down for lack of merit. The claimant’s said appeal was further referred by the Governing Council to the same disciplinary committee that interrogated the claimant. A copy of the said letter is pleaded and defendant is hereby given notice to produce the

certified true copy of same at the trial of this case.
(23.) The claimant further states that he instructed his counsel to issue the defendant notice of intention to commence legal action as required. The said notice of intention to commence legal action dated 8/02/2017 with reference number AOC/ATAND/2017/01 was addressed to the Registrar of the defendant and copied to (1) The Vice Chancellor and (2) The Chairman, Governing Council respectively.
(24.) The said letters were registered and sent vide EMS Nigeria on 9/2/2017. Copies of the said letters and EMS Nigeria posting certificates are pleaded. The defendant is given notice to produce the certified true copy of the letters.
(25.) The claimant states that the said letter were duly delivered to the defendant.
(26.) The claimant states that up till the time of filing this suit the defendant did not deem it fit to respond to his said letters.”

On the pleadings contained in the statement of claim reproduced supra, the following finding are made:
(i) The cause of action in the suit at the Lower Court arose on 11th March, 2017 and the Appellant filed this suit at the Court on

11th April, 2017 upon exhausting all the conditions precedent outlined in the Kwara State University Law and Kwara State University Senior Staff Conditions of Service.
(ii) The Appellant in his originating process deposed to the fact that he was employed by the Respondent as Lecturer 11 by a letter dated 13th December, 2012. His appointment was regularized by a letter dated 1st April, 2014.
(iii) However, the Appellant’s employment with the respondent was unlawfully terminated vide a letter with reference number KWASU/ASSE/PF/454/VOL.1/48 dated 10th October, 2016. (See pages 18 and 19 of the Record of Appeal). He lodged an appeal against the termination of his said appointment on 25th October, 2016. (See pages 20 – 22 of the Record of Appeal).
(iv) The Respondent’s verdict turning down the Appellant’s appeal was communicated to him on 9th January, 2017 by a letter with reference Number KWASU/ASSE/PF/454/1/54 dated 3rd January, 2017. (See page 3 of the Record of Appeal).
(v) The Appellant thereafter in compliance with Section 39 of the Kwara State University Law, caused his solicitors, Akeem Olaniyan & Partners,

to write and serve on the Respondent, a 30 day Notice of Intention to Commence a Lawsuit on 9th February, 2017. That 30 day notice expired on the 11th day of March, 2017. (See pages 24 – 29 of the Record of Appeal).

By the averments in the pleadings and the findings therefrom supra, the appellant’s right to ventilate his grievances or complaints against the respondent has been established as postulated in the case of Udoh Trading Co. Ltd. Vs Abere (2001) 6 SCNJ P.274 @ 238, wherein, the Court enunciated that:
“In law, a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed.”

The appellant has therefore made a case against the respondent worthy of consideration by the lower Court.

RESPONDENT’S NOTICE
On the 24th of January, 2020, the respondent filed a Respondent’s Notice of Intention to contend that the judgment of the lower Court delivered on the 17th day of November, 2017, be affirmed on grounds other than

those relied on by the learned judge in the said judgment. The grounds upon which the respondent intended to rely on are these:
“(1). Paragraph 5 of the Statement of facts (statement of claim) establishing the right of the appellant which can be found at pages 5 to 8 of the record shows that the appellant’s appointment was on probation and in the effect cannot enjoy full privilege of a confirmed employee.
(2). With regard to the appellant’s status at the respondent’s University as at the day his appointment was terminated, the appellant was not full-fledged employee of the respondent, thus, his appointment can be terminated anytime without following requisite process for termination of appointment of a confirmed employee.”

The appellant’s arguments canvassed supporting the Respondent’s Notice are located on pages 12-16 of the respondent’s brief of argument filed on the 24th of January, 2010 which was deemed properly filed and served on the appellant on the 14th of September, 2020. The appellant responded to the argument canvassed on the respondent’s brief on pages 3 to 7 of the Reply brief

filed on the 11th September, 2020 but deemed properly filed on the 19th of same.

The respondent formulated a sole issue for determination on page 12 of the brief of argument, which is thus:
“Whether the appellant having regard to his status at the respondent’s University as at the day of his appointment was terminated need (require) any procedure before his appointment could be terminated.”

Learned counsel to the appellant contended that the Respondent’s Notice filed on the 14th of September, 2020 is incompetent having not complied with Order 9 of the Court of Appeal Rules, 2016. The arguments in respect of the above contention are located on pages 3 to 7 of the Reply brief. The summary of the learned counsel’s arguments on the incompetence of the respondent’s Notice are hereunder reproduced, with profound gratitude:
“We submit specifically, that the contention of the respondent in her respondent’s Notice is incompetent owing to the following reasons:
1. The issue raised in the respondent’s Notice did not arise from the decision of the trial Court and as such it cannot be a

subject consideration of before this honourable Appellate Court;
2. The respondent in this Appeal did not file any pleadings at the trial Court and did not join issues in any way whatsoever with the appellant;
3. The honourable trial Court did not take evidence from either party and;
4. The honourable trial Court did not consider this case on merit.”

Furthermore, it is learned counsel’s contention that a Respondent’s Notice in an appeal must be predicated on an issue that has been tried and decision taken on same by the trial Court. The principles of law espoused in the case of Etiemone vs Apina (2019) 15 NWLR pt. 1096 P.557 @ 570 has been cited and relied on to buttress and reinforce the submission supra. This Court has been urged to discountenance the Respondent’s Notice and the arguments canvassed in respect of same, in the determination of the appeal.

Order 9 Rules 1, 2, and 3 of the Court of Appeal Rules, 2016 provides thus:
“RESPONDENT’S NOTICE OF CONTENTION
1. A Respondent who not having appealed from the decision of the Court below, desires to contend on the

appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
2. A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.
3. Except with the leave of the Court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rule, to apply for any relief not so specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a notice.
A careful perusal of the provision of Order 9 Rules 1, 2, and 3 of the Court of Appeal Rules, 2016, supra, reveals what the respondent is expected to do when he intends to file a

Respondent’s Notice of contention that the judgment of the Court be affirmed on grounds other than on which the learned judge of the lower Court decided the matter before it in the judgment delivered. Where the provision of the said Order 9 Rules 1, 2, and 3 have not been complied with, the Notice and the arguments canvassed thereon is to be discountenanced in the determination of the appeal as postulated in the case of Etiemone vs Apina (2019) 15 NWLR pt. 1096 P.557 @ 578, wherein it was held thus:
”The trial Court in its judgment did not decides on that aspect either and this is because it has never been the case before it. The law is clear that, the fact that a successful party is entitled to file a respondent’s Notice to contend that the judgment of the Court be affirmed on grounds other than those grounds relied by it, the new grounds, must be predicted upon issues litigated before the Court. In Labour Party vs INEC & Ors (2011) LPELR 4418: Ogunwumiju JCA held that:
‘Needless to say Order 9 of the Court of Appeal Rules can only be admitted where the issues contained in the respondent’s notice had been brought to

the attention of the trial Court who failed to use those reasons to arrive at its judgment in favour of the respondent. This Court cannot at this appellate level usurp the power of the trial Court to determine issues not submitted to it for determination. No respondent can use the respondent’s notice to make a case at the appellate Court that it did not make at the trial Court.’
The respondent’s notice as necessity, must be predicated upon pleadings before the trial Court, issues raised, evidence leas at trial and the decision of the Court. It is never used as a tool by the respondent on any conceivable issue that ought to be and was not litigated on at the trial Court; cannot be at large. Since the issue that the appellant had no valid money lender’s license at the time he entered into the money lending contract with the respondent was never raised at the trial Court, it is too late in the day to raise here at appellate stage. It is inappropriate. In the circumstances, the respondent’s notice; issues raised pursuant to the said respondent’s notice and argument predicated upon it cannot be considered by this Court and

the notice itself being a misconception on the purport of a respondent notice is hereby struck out with the argument thereon.”
Relying of the principles of law enunciated in the case Etiemone vs Apina supra, the respondent having not complied with the provision of Order 9 Rules 1, 2, and 3 of the Court of Appeal Rules, 2016, the Respondent’s Notice of intention filed on the 14th of September, 2020 is incompetent. For this reason the said Notice of Intention filed on the said date is incompetent, same is hereby struck out together with the entire arguments canvassed in respect of same by learned counsel. The Notice of Intention to content and the arguments canvassed in respect thereof are hereby discountenanced in the determination of the appeal.

Having held, herein before in this judgment, that the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State, is not applicable to the determination of suit No: NIC/IL/03/2017, because the subject-matter involved is contract of employment/appointment with the respondent, the Kwara State University, the two issues for determination in the appeal are hereby resolved in favour

of the appellant. The appeal therefore is allowed. The judgment of the lower Court delivered on the 17th day of November, 2017 in suit No: NIC/IL/03/2017, is hereby set aside. The said suit in hereby remitted to the lower Court to proceed with the hearing and determination of same on its merit. The appellant is entitled to costs. The sum of N100,000.00 is assessed and accordingly awarded to the appellant against the respondent.

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree with the judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA
I allow this appeal. The Suit is remitted back to the learned trial Judge to proceed with the hearing and determination of the case on its merit.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the leading judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA.

Section 2 (a) of the Public Officers Protection Act, Laws Kwara State, CAP. P15 is in pari material with Section 2 (a) of the Public Officers Protection Act, Laws of the Federation. The referred Kwara State Law provides:

Section 2
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or Injury within three months next after the ceasing thereof.
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.
The law is without controversy that a public officer is any person who is directly employed in government, public service, civil service or any public agency. See: Momoh V. Okewale & Anor (1977) LPELR-1908 (SC); Okomu Oil Palm Co. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660; Eze v. Okechukwu (2002) 18 NWLR Pt. 799 page 348.

The Statutory meaning of the term “Public Officer” has been set by the Apex Court thus: “The term ”Public Officer” is used synonymously with the term “Public Department” and is defined as follows- “‘Public Officer’ or ‘Public Department’ extends to and includes every officer or department invested with or performing duties of a public nature”. See: Ibrahim v. Judicial Service Commission (1998) 14 NWLR Pt. 584 page 1. Accordingly, the protection offered by the Public Officers Protection Act covers and protects all public officers, that is, all civil servants in their individual capacity and all government bodies, public institutions and agencies, ministries, and departments, by whatever name called and whether corporate or unincorporated. It follows therefore that, the holding of my learned BROTHER that the definition of “any person” in the Public Officers (protection) law cannot be read as meaning person in any limited sense, instead it includes artificial persons such as a corporation, company or anybody or persons, corporate or unincorporated, is my view.

On the determination of cause of action, it is a cardinal

principle of law that to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim for it is by examining them that a Court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the Court. After ascertaining the cause of action then by the very averments, the Court can discern the time that a cause of action arose. See: ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR-55(SC).
In the case of BELLO V. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (PART 45) PAGE 828, it was held:
“The law is settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving a Plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredients of an enforceable right.”

Again in AKILU VS. FAWEHINMI (1989) 2 NWLR (PART 102) PAGE 122, it was held:
“concisely stated, an act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action. “The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim. “Then again, in OGBIMI VS. OLOLO (1993) 7 NWLR (PART 304) PAGE 128 at 136, it was held that:
“A cause of action is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.” See also: OBIKA VS. OBIKA (2018) LPELR 4396.
Based on the meaning of cause of action attempted above owing to decided authorities, I am in consonance with the decision of my learned Brother, that the Appellant has a cause of action.
Finally, for what I have managed to say above and for the more detailed reasoning in the leading judgment, I agree with my learned BROTHER that the provisions of Section 2(a) of the Public Officers Protection Law, Kwara State,

is not applicable in the determination of Suit No: NIC/IL/03/2017. See UNIVERSITY OF CALABAR V. AMCON & ORS (2019) LPELR-47309 (CA).

I therefore allow the Appeal and set aside the judgment of the National Industrial Court delivered on 17th November, 2017 in Suit No: NIC/IL/03/2017.
I abide by the consequential orders and order as to costs.

Appearances:

Olumide Abifarin, Esq., with him, T.N Alatisa, Esq. For Appellant(s)

A.F Isau, Esq. with him, F.E Adisa, Esq. For Respondent(s)