COMMISSIONER FOR FINANCE, IMO STATE & ORS v. KOJO MOTORS LIMITED
(2018)LCN/11921(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/260/2016
RATIO
COURT AND PROCEDURE: WHERE A PARTY IS DISSATISFIED WITH A DECISION
“The settled position of the law has always been and still is, that any party in a case that is dissatisfied with any finding made by a Court in its decision, ruling or judgment, must ventilate his dissatisfaction in that regard by appealing against the same. This is because any finding of a Court not appealed against, is deemed as correct or right; and accepted by the parties, until set aside on appeal. Hence, any party to a case is not allowed to turn around in an appeal to argue against such a finding without formally appealing against the finding in question. See in this regard, the cases of POROYE V. MAKARFI (2017) LPELR 42738 (SC); C.C.C.T.C LTD V. EKPO (2008) LPELR 825 (SC), (2008) 6 NWLR (Pt. 1083) 362 S.C.; and AWOTE V. OWODUNNI (1986) LPELR 660 (SC), (1986) 5 NWLR (Pt. 46) 941 amongst many others.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. COMMISSIONER FOR FINANCE, IMO STATE
2. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE
3. COMMISSIONER FOR WORKS &TRANSPORT, IMO STATE
4. GOVERNMENT OF IMO STATE – Appellant(s)
AND
KOJO MOTORS LTD – Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the ruling delivered on 11/5/2015 by the High Court of Imo State, Owerri Judicial Division presided over by Hon. Justice N.B. Ukoha (hereafter to be simply referred to as the lower Court and the learned trial Judge respectively).
The Respondent as Claimant commenced its case by a writ of summons dated 23/10/2013 and which was issued on 24/10/2013. Having regard to the endorsements in long hand on the said writ of summons, the case was commenced under the undefended list procedure; it was also fixed as it were for pre-hearing on 29/1/2014 and equally transferred to the general cause list on the same date. The claims of the Respondent against the Appellants (as Defendants) jointly and severally as contained in the endorsement of the writ of summons are as follows: –
(a) A DECLARATION that the Defendants failure, neglect and/or refusal to pay the Claimant the total contract sum/debt of Thirty Seven Million, Fifty Thousand Naira (37,050, 000.00) only for the vehicles supplied to the Defendants was unwarranted, unlawful and amounts to a breach of contract.
(b) AN ORDER that the Defendants pay the Claimant the total contract sum/debt of Thirty Seven Million, Fifty Thousand Naira (37,050, 000.00) only being the value of the vehicles supplied to the Defendants.
(c) Thirty percent (30%) annual interest rate on the aforesaid contract sum/debt from the 10th day of November, 2010 until judgment is delivered.
(d) Twenty percent (20%) monthly interest rate from the date of judgment until the judgment sum is fully liquidated.
(e) Fifty Million Naira (N50, 000,000.00) being general, exemplary and punitive damages.
The writ of summons was apparently accompanied with a statement of claim in which the Respondent averred to facts considered appropriate in order to have the lower Court grant him the reliefs set out in paragraph 21 of the said statement of claim and which reliefs are ipsissima verbal with those contained in the endorsement on the writ of summons. The case of the Respondent against the Appellants as set up in the statement of claim, simply put is that the Appellants have committed a breach of the contract they had with him for the supply to them (Appellants) of various types of cars which were duly supplied and delivery of same taken by the Appellants, and which they (Appellants) have refused or neglected to pay for. The written statement on oath of the only witness the Respondent intended to field at trial in the proof of its case as well as the list of documents to be relied on by the said Respondent accompanied the statement of claim.
The Appellants did not file a statement of defense in the case. On 14/2/2014, they however filed a motion on notice dated 7/2/2014 in which they sought for an order dismissing this suit for want of jurisdiction. The ground for the application is: that the suit is incompetent and is statute barred, since action was commenced three years after the cause of action arose. The parties herein, filed affidavits and written addresses before the lower Court in respect of the motion and the said Court entertained the motion on 7/7/2014. The lower Court in its ruling delivered on 11/5/2015 (which spans pages 64- 69 of the record) amongst others said thus: –
COURT: I have gone through the Notice of Preliminary Objection, the ground upon which it was brought, the affidavit evidence of both parties and the submissions of both counsel. The Court is being called upon to make a finding whether the claimants’ (sic) suit is statute barred or not. In doing so, the defendants/applicants relied on Section 2[a] of the Public Officers Protection Act. It must be borne in mind at this point that the Public Officers Protection Act applies both to the Federal and State Public Officers. See ABUBARKAR VS. GOV. OF GOMBE STATE [2002] 17 NWLR pt. 797 pg 533.
The defendants/applicants are of the view that the provisions of the said Section 2[a) of the Act, includes all acts carried out by a public officer in the course of his official duties. The claimants’ counsel however argued that the said Protection Act does not include actions founded on contract. Section 2[a] of the Public Officers Protection Act states thus:-
“Any action, prosecution or proceedings commenced against any person for any act done in pursuance or execution or intended execution of any Act, Law or any Public duty or authority shall be brought within 3 months of the act, neglect or default complained of or in the case of a continuing damage or injury, within 3 months next after the ceasing thereof”.
I have gone through the statement of claim of the claimants. In the said averments, it could be deduced that there was a contract agreement between the claimant and the defendants during which the claimant is to supply the defendant with various types of cars. It could also be deduced from the said statement of claim that the claimant did supply the said vehicle but the defendants up to the time of institution of this case has (sic) refused to pay the claimant his money due from the sale of the said vehicles. It is not in doubt that by virtue of Section 18[1] of the Interpretation Act of 2004, the defendants are deemed to be public officers as envisaged by the Act. Defendants’ counsel had contended that the claimant who alleges the contract he entered into on 4/10/2010 which the defendant had been breached (sic) and that failure of the claimant to bring this action 3 months after the said breach is now statute barred. It is trite that Section 2[a] of the Public Officers Protection Act/Law is not all embracing as contended by the defendants’ counsel.
There are exceptions recognized by the law and these include where the injury is a continuing one, claims on contract for work or labour done and cases of recovery of land where there is evidence of bad faith malice or no legal justification. See IBRAHIM VS. JSC KADUNA STATE [1998] 14 NWLR pt. 584 pg. 608 and MOYOSORE VS GOV. KWARA STATE [2012] 5 NWLR pt. 1293 pg. 242 at 284-285. It therefore follows that the Public Officers Protection Act does not apply to cases of contracts, etc. See N.P.A. VS CONSTRUZIONI GENERALI [1974] ALL NLR pt. 945 at 572.
It could be seen from the statement of claim of the claimants, series of demands that he made to see if he could be paid for the supply of the vehicles but all in vain. On the hand (sic), the defendants are not saying that there is no contract they entered into with the claimant, they are merely relying on Section 2[a] of the Public Officers Protection Act/Law.
In my view and based on the provisions of Section 2[a] of the Act, it will be wrong to import into the Act that its provisions afford protection to acts framed in contract. It will be strange and preposterous if an express or specific contract entered into by a public officer as an agent of the State Government were to be affected by Section 2[a] of the said law in the event of failure of the public officer to honour the terms of the contract. See AMAO VS. C.S.C. [1992] 7 NWLR pt. 252 pg. 214 at 228 para D-E.
I therefore hold that contrary to the views of the learned state counsel, Section 2[a] of the Public Officers Protection Act/Law does not apply in the instant case. I have also seen the argument of the learned claimants’ counsel to the effect that this case could have been statute barred. (sic) If it was brought 5 years from the date on which the cause of action accrued. See Section 18 of the Limitation Law of 1994.
It is my view too that since this action was brought within the 5 years period provided by the above Limitation Law, this action can be sustained. In the light of the foregoing, the Preliminary Objection of the defendants is unmeritorious and cannot be allowed. It is accordingly dismissed.
Being dissatisfied with the ruling of the lower Court, the Appellants initiated the instant appeal against the same by lodging at the registry of the said Court on 13/5/2015 a notice of appeal dated 12/5/2015. The process contains one ground of appeal. The inelegantly couched ground with its particulars read thus: –
GROUND ONE: ERROR IN LAW.
The learned trial Judge erred in law when he held as follows: – (sic)
The learned trial Judge erred in law when he assumed jurisdiction to hear the matter despite the protection offered by the public officer’s protection Act.
PARTICULARS OF ERROR
(a) Recent Supreme Court decisions are to the effects that breach of contract is covered by provisions of the public officers’ protection Act.
(b) The assumption of jurisdiction by the learned trial judge occasioned, miscarriage of justice in this case.
The relief which the Appellants seek from this Court are (i) to allow the appeal; (ii) set aside the ruling of the learned trial Judge; (iii) grant the prayers of the Appellant in their preliminary objection.
The appeal was entertained on 17/4/2018 with N.M. Obioha (Senior State Counsel, Imo State) in urging the Court to allow the appeal, adopting and relying on the Appellants brief of argument dated 28/10/2016 and filed on 31/10/2016 but deemed as properly filed and served on 19/6/2017.
In the same vein, learned counsel, S.C. Imo adopted and relied on Respondent’s brief of argument dated 18/12/2017 and filed on 20/12/2017 in urging the Court to dismiss the appeal. The unreported decision of this Court delivered on 19/12/2017 in APPEAL CA/OW/271/2014 GOVERNOR OF IMO STATE & ORS. V. MONIER CONSTRUCTION CO. NIG. LTD. was relied on by the Respondent in support of its stance in the appeal.
The lone issue formulated for the determination of the appeal by the Appellants in their brief of argument reads thus: –
Whether the trial judge was right to have assumed jurisdiction to determine the suit in view of Section 2(a) of the Public Officers Protection Act, Cap 4, Vol. 14, Laws of the Federation of Nigeria, 2004 (Ground 1 of the notice of appeal).
The Respondent in its brief of argument adopted the issue formulated by the Appellants for the determination of the appeal.
Dwelling on the issue they formulated the Appellants submitted to the effect that the lower Court was wrong to have assumed jurisdiction to determine the suit in view of the provision of Section 2(a) of the Public Officers Protection Act, 2004 (hereafter to be simply referred to as the Act). This according to the Appellants is because there is no ambiguity in the provision of Section 2(a) of the Act regarding its application and intent.
Having argued to the effect that they (Appellants) are public officers and citing Section 18(1) of the Interpretation Act, 2004 and the cases of Abubakar v. Governor of Gombe State (2002) 17 NWLR (Pt. 797) 533 (CA) and Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) in aid, the Appellants further argued that the provisions of Section 2 of the Act inasmuch as it refers to any act was applicable to all causes of action. That the instant action was therefore caught by the provisions of the Act; hence it ought to have been instituted within 3 months of the accrual to the Respondent of its cause of action. The Appellants in aid of their stance cited the cases of Ekeogu Vs. Aliri (1991)3 NWLR (Pt. 179) 259, Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 at 616; Nigerian Broadcasting Corporation v. Bankole 1972 4 SC 94; NPA v. Construzioni Generali FCS (sic) (1974) 12 SC 81.
It is the stance of the Appellants that the Act ought to apply to the instant case and that the issue as to whether or not the suit is for recovery of land, contract or revocation becomes otiose because to do otherwise is to defeat the intendment of the law makers. The Appellants urged to the effect that this Court should hold that any neglect on their part in respect of the contract in this case, comes within the protection of the Act. That the fact that there was or might be some default or negligence on their part (Appellants) in the performance of their duty should not be the basis for depriving them of protection under Section 2 of the Act. That all that is relevant in this appeal is not their (Appellants) liability but whether the action is maintainable or not. That as the Respondent did not institute the instant action within three months, they (Appellants) are entitled to the defence of limitation of action as provided by the Act.
It is the position of the Respondent that two sub-questions are incorporated or subsumed in the lone issue formulated by the Appellant for the determination of the appeal and which he (Respondent) expressly adopted. The sub-questions are (a) whether the provisions of Section 2(a) of the Act, are applicable to public officers in the Imo State Government; and (b) whether the provisions of Section 2(a) of the Act apply to actions founded on contract?
Dwelling on the first of the sub-questions, it is the position of the Respondent that the provisions of Section 2(a) of the Act, 2004 do not apply to public officers in the Imo State Government and in this regard cited the case of Ibegbu v. Lagos City Council Caretaker Committee (1974) 1 All NLR 328. This Court was urged to hold that the 2004 Act being a federal statute, does not apply to public officers in Imo State. Having further argued to the effect that the Eastern Region of Nigeria’s version of the 2004 Act to wit: Public Officers Protection Law Cap. 106 (which in its Section 2(a) is ipsissima verba with that of Section 2(a) of the 2004 Act) was undoubtedly in operation and applicable to Imo State in years past, the Respondent submitted that the said enactment however ceased to be applicable in Imo State after or upon the promulgation in 1994 of the Limitation Law of Imo State 1994 which in its Section 44 provides that: –
Any enactment relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.
In the premises, the Respondent submitted that as the express provision of Section 44 of the Imo State Limitation Law, 1994, had abrogated or repealed Section 2(a) of the Public Officers Protection Law, Cap 106, Laws of Eastern Nigeria and therefore ceased to have effect, the relevant Limitation Law currently in force in lmo State is that of 1994 (supra). This Court was therefore urged to hold that Section 2(a) of the 2004 Act, being a provision of an Act of the National Assembly (i.e. a federal statute) is inapplicable to public officers in the lmo State Government.
The Respondent also argued to the effect (without so conceding) that even if the 2004 Act, applied to public officers in Imo State, the provisions of Section 2(a) of the said 2004 Act not being applicable to cases founded in contract, ipso facto, does not affect his (Respondent’s) action which is founded on a contract for the sale of goods, to wit, vehicles/cars. The Respondent cited the cases of Amao v. C.S.C (1992) 7 NWLR (Pt. 252) 214 at 228; FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 to 196; and NPA v. Construzioni Generali Farsura Cogefar SPA (1974) All NLR (Pt. 2) 945 at 955 in support of his position.
As it can be seen from the arguments highlighted herein before, it is the stance of the Respondent on the one hand that the provisions of Section 2(a) of the 2004 Act, do not apply to public officers in Imo State as Cap. 106 of the Laws of Eastern Nigeria 1963 that made the provisions of the said Cap. 106 Public Officers Protection Law applicable in Imo State, have been repealed by the Imo State Limitation Law, 1994.
Without prejudice to the correctness of the stance of the Respondent on the issue which was argued under sub-question (a) of the two sub-questions which the Respondent claimed were subsumed in the lone issue formulated by the Appellant for the determination of the instant appeal, I consider it expedient to remind the Respondent that the lower Court relying on the case of Abubakar v. Gombe State (supra) not only made a specific finding in the ruling delivered on 11/5/2015 that the Public Officers Protection Act applies to both the Federal and State Public Officers (albeit without considering the particular legislation of Imo State relating to Limitation of Action) but also that the Respondent who is the beneficiary of the ruling as it were, or in whose favour the ruling ended, and who is obligated in law to defend the said ruling, cannot properly take a position different from that of the lower Court on the issue inasmuch as he has not appealed against the finding in question.
The settled position of the law has always been and still is, that any party in a case that is dissatisfied with any finding made by a Court in its decision, ruling or judgment, must ventilate his dissatisfaction in that regard by appealing against the same. This is because any finding of a Court not appealed against, is deemed as correct or right; and accepted by the parties, until set aside on appeal. Hence, any party to a case is not allowed to turn around in an appeal to argue against such a finding without formally appealing against the finding in question. See in this regard, the cases of POROYE V. MAKARFI (2017) LPELR 42738 (SC); C.C.C.T.C LTD V. EKPO (2008) LPELR 825 (SC), (2008) 6 NWLR (Pt. 1083) 362 S.C.; and AWOTE V. OWODUNNI (1986) LPELR 660 (SC), (1986) 5 NWLR (Pt. 46) 941 amongst many others.
Against the backdrop of the position of the law as stated hereinbefore, the issue as to whether the provisions of Section 2(a) of the Public Officer Protection Act, 2004, are applicable to public officers in Imo State Government as argued by the Respondent in his brief of argument, in my considered view, is nothing short of a surreptitious attempt to appeal against a specific finding of the lower Court in its ruling of 11/5/2015, and which cannot be allowed by this Court.
I will therefore not dwell on the correctness or otherwise of the stance of the Respondent on the issue in question.
Having hereinbefore re-produced the issues for the determination of the appeal as contained in the briefs of argument of the parties, and against the backdrop of the fact that the parties are ad idem that the cause of action of the Respondent, is in contract or founded on contract, I am of the considered view that the second of the sub-questions formulated by the Respondent to wit: whether the provisions of Section 2(a) of the Public Officers Protection applies (sic) to actions founded on contract is more apt for the determination of the instant appeal.
As rightly stated by learned counsel for the Respondent at the hearing of the instant appeal, this very Court had cause to consider the applicability or inapplicability of the provisions of Section 2(a) to a cause of action in contract or a case founded on contract in the unreported decision delivered on 19/12/2017 in APPEAL CA/OW/271/2014 GOVERNOR OF IMO STATE & ORS. V. MONIER CONSTRUCTION CO. NIG. LTD.
Therein, after this Court had set out what the Supreme Court per Nnamani, JSC; (of blessed memory) and Uwais, CJN, respectively said in the case of EGBE V. ABUBAKAR ALHAJI (1990) LPELR 1033 (SC), (1990) NWLR (Pt.128) 546 in respect of a suit commenced against a public officer or officers in contravention of the provisions of Section 2 of the Act (since the introduction of the Act as Public Officers Protection Ordinance into the country’s statute books); and having also noted that there was no appeal against the specific finding of the lower Court that the Respondent’s action was rooted in contract (just as the lower Court had found in the instant case), and that the Appellants therein were not questioning the reliance placed by the lower Court on the case of OSUN STATE GOVT. V. DALAMI (2007) 9 NWLR (PT. 1038) 66, amongst others in coming to the decision that Section 2 of the 2004 Act, does not apply to a cause of action in contract, in that the said cases did not decide what the lower Court claimed they decided, or that the lower Court misapprehended the decisions in the cases, proceeded to state thus: –
I have had cause to read again, the case of OSUN STATE GOVT. V. DALAMI NIGERIA LTD (supra) and which having regard to the ruling of the lower Court appealed against was the clincher the said Court relied upon in dismissing the motion on notice of preliminary objection brought by the Appellants. In the said case the Supreme Court considered the following issues amongst others: –
1. Determination of jurisdiction of Court and the Court said thus: –
1“It is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the Court which entertains the claim.”
2. Whether Section 2 of Public Officers (Protection) Act applies to cases of contract and the Court said thus: –
“It is now settled law that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract.”
The above cited case is not the only one in which the Supreme Court after interpreting the provisions of Section 2 of the Public Officers Protection Act has held or decided that the provisions in question, are inapplicable to cases of contract. See in this regard the earlier case of FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (Pt. 798) 162. Also see the recent case of WEMA SECURITIES AND FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORP. (2015) LPELR 24833 (SC), (2015) 16 NWLR (Pt. 1484) 93 cited in the brief of argument of the Respondent and in which case the Supreme Court reiterated its position that Section 2 of the Public Officers Protection Act is not applicable to contracts.
Given the decision of this Court in the case cited hereinbefore, and in which some of the cases decided by the Supreme Court in recent times on the non-applicability of the provisions of Section 2(a) of the 2004 Act, to actions founded in contract were glaringly considered and applied to the appeal then at hand, it becomes clear as crystal in my considered view that the Appellants in the instant appeal, relying on the interpretation accorded provisions that are ipsissima verba with those of Section 2(a) of the 2004 Act, in some other cases without realising the fact that the causes of action in the said cases were not in contract at all, or even where the causes of action were in contract, that such contracts were not of the same nature with the one in the instant case, cannot successfully get this Court to reverse itself in the instant appeal. This is particularly so as it is even obvious that one of the cases to wit: NBC V. BANKOLE (1972) LPELR 2018 (SC) decided on 21st day of April, 1972, relied on by the Appellants in their stance that the provisions of Section 2(a) of the 2004 Act, apply to all manner of causes of action (and which case I believe the Appellants did not actually read in detail or properly comprehend), eloquently decided to the contrary.
This is because it is clear from the case under reference that even though the Supreme Court could be said to have held that provisions analogous to those of Section 2(a) of the 2004 Act applied to contracts, the said Court still made it clear that it was not every or all causes of action in respect of contracts, that could be rendered statute barred by virtue of such provisions. In this regard I consider it expedient to re-produce in extensor what the Supreme Court per Madarikan, JSC; said in the case. It goes thus: –
Although many grounds of appeal were argued before us, we consider it necessary to deal with only one of them, that is the first ground of appeal which reads as follows:
“The learned trial Judge is wrong in law when he holds that Section 61(1) of the Nigerian Broadcasting Corporation Act does not apply and consequently that the action is not statute barred.”
At the trial, there was uncontroverted evidence that the plaintiff’s dismissal took effect from the 8th of June, 1965, and that this action was commenced about 31 months thereafter, that is, on the 8th of January, 1968. It was on these facts that the defendant grounded the plea that the action was statute barred, and in rejecting that plea the learned trial Judge said:
“Counsel for the defendant submitted that since the dismissal of the plaintiff was on the 10th of June,1965, and the action was brought in 1968 it was statute barred. He drew my attention to Section 61 (1) of the Nigerian Broadcasting Act which reads:
“No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority or in respect of any alleged neglect or default in execution of such ordinance or law, duty or authority shall lie or be instituted in any Court unless it is commenced within 12 months next after the act, neglect or default complained of or in the case of continuance of damage or injury within 12 months next after the ceasing thereof.”
In my view, Section 61(1) contemplates the position where the Corporation on the authority of an Act does an act which causes injury or trespass to a person or his property. But it does not apply to a case where the Corporation is exercising its right based on common law or on a contract. An action for wrongful dismissal, especially one of this nature, is a specie of breach of contract. This is a common right and is not based on any statute. A master acting within the limits of his authority is entitled to dismiss an employee taking proper care that his action is within the terms of his contract with the employee but such an act cannot come within the provisions of Section 61(1) of the Nigerian Broadcasting Corporation Act.
We are in no doubt that the learned trial Judge was in error in taking the view that Section 61(1)is restricted to acts causing “injury or trespass to a person or his property”; and does not apply to cases where the corporation is exercising “right based on common law or on a contract. Upon a proper interpretation of Section 61(1), we fail to see how it could be said that the Section draws such distinction. In our view, the wording of the Section is clear and unequivocable. It applies to an act done in pursuance or execution or intended execution of any Ordinance or Law, or of any public duty or authority, or in respect of any alleged neglect or default in execution of such Ordinance or Law, duty or authority and affords protection to all acts done in the circumstances contemplated by that Section.
Section 1 of the Public Authorities Protection Act,1893, which is similar to Section 61(1)of the Nigerian Broadcasting Corporation Act was considered in Compton v. West Ham County Borough Council (1939) 3 All ER 193. In that case, it was held that the breach of a contract which a public authority has the duty to make or is by statute bound to make comes within the protection of the Act. We respectfully adopt the views expressed by Crossman, J., at pp. 198 to 200 when he said:
“The defendant council relied upon the provisions of that Act. Section 1 of that Act provides as follows:
Where after the commencement of this Act any action, prosecution, or other proceedings commenced in the United Kingdom against any person for any action done in pursuance, or execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, 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 6 months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof……..
Counsel for the defendant council says that the keeping back from the plaintiff of the half of his salary which was kept back was an act done in pursuance or execution or intended execution of an Act of Parliament, and that, the action not having been commenced within 6 months next after the act so done, the action does not lie. Counsel for the plaintiff says that the Act does not apply because the action is for breach of contract, and he relies upon Clarke v. Lewisham Borough Council (4) and Sharpington v. Fulham Guardians (5)
The statement in HALSBURY’S LAWS OF ENGLAND, Hailsham Edn., Vol. 26, p. 294, para.612, in the article on “Public Authorities and Public Officers,” and in the Section which is concerned with the execution of a statute, duty or authority, dealing with the Public Authorities Protection Act,1893, is as follows:
“The performance, or breach, of a contract which a public authority has the power, but not the duty, to make, is not within the protection (of the Public Authorities Protection Act).
I think that that is a correct statement of the law, and I think that it also would be correct to take that in an inverted form, and to say that the breach of a contract which a public authority has the duty to make is within the protection of the Act. However, that does not make it at once possible to see how that applies to the present case, because the question is, what was the act done here in respect of which this action is brought? I think that it is only a breach of contract which a public authority has the power, but not the duty, to make which is not within the Act. I think that this appears from Bardford Corpn. v. Myers (6) and McManus v. Bowes (7).
I find it difficult, really, to construe the authorities, and to arrive at the law applicable to this case from them. I think that a breach of a contract which a public authority is by statute bound to make does come within the Public Authorities Protection Act, 1893, and, as the defendant council were, by the Public Assistance Order, 1930, Art. 142 (1), bound to make the appointment of the plaintiff, I hold that an action for breach of the terms of that appointment is an action within Section 1 of the Act of 1893. Art. 142 provides as follows:
1. The council shall appoint a district medical officer for every medical relief district and a relieving officer for every general relief district formed pursuant to Art. 20.
Thus, the appointment of the plaintiff was an appointment which the defendant council were bound to make under the Act. The action here has arisen in consequence of that appointment, and it seems to me that the best conclusion at which I can arrive as to the meaning of Section 1 of the Act is that the Section does apply to an action which is to remedy a breach of a contract which the defendant council were bound to make in pursuance of the Poor Law Act, 1930, and the regulations hereunder. I should say that, under the Poor Law Act, 1930, Section 136(2), the articles contained in the Public Assistance Order, 1930, have the same effect as if they were enacted in the Poor LawAct, 1930.”
In the instant case, it seems to us that by the combined effect of Section 53 of the Nigeria Broadcasting Corporation Act by virtue of which the defendant/corporation appointed its staff, and the regulations made under Section 55(1) for the dismissal of staff, the plaintiff’s contract of employment was one which the defendant/corporation was bound to make under the Act, and as the present action alleged a breach of that contract, the defendant/corporation is entitled to the protection offered by Section 61(1)of the Nigerian Broadcasting Corporation Act. It follows that the defendant’s plea that the action was statute barred under Section 61(1) ought to have been upheld by the learned trial Judge.
Suffice, it to say that I am of the considered view, that it is obvious from the portion of the decision in the NBC case re-produced above, that even if the position of the Supreme Court in the said case, was still good law, (and I have so expressed myself against the backdrop of the position of the law as put in place by the Supreme Court itself, that where there are two inconsistent judgments of a Court with respect to the same case/matter, the one later in time is to be preferred see the cases of CBN V. OKOJIE (2015) LPELR 24740 (SC) and CARDOSO V. DANIEL (1986) LPELR 830 (SC)), the Appellants having not placed any evidence before the lower Court that the contract they entered into with the Respondent was one they had the duty to make (in contradistinction to power to make) or one they were by statute bound to make, cannot be said to come within the protection of Section 2(a) of the 2004 Act.
In any event, as it is now a settled position of the law as enunciated by Supreme Court in the cases cited in APPEAL CA/OW/271/2014 GOVERNOR OF IMO STATE & ORS. V. MONIER CONSTRUCTION CO. NIG. LTD (supra), that the provisions of Section 2(a) of the 2004 Act, are not applicable to cases of contract, it is this position that must prevail and be followed by this Court in strict adherence to the doctrine of stares decisis.
Flowing from all that has been said, and in direct answer to the issue formulated by the Appellants, is that the lower Court was right to have assumed jurisdiction to determine the Respondent’s case as Section 2(a) of the Public Officers Protection Act, Cap. 4, Vol. 14, Laws of the Federation of Nigeria, 2004, is inapplicable to the Respondent’s case that is in contract or founded on contract.
In the final analysis, the instant appeal is seriously lacking in merit given the resolution of the issue formulated by the Appellants for its determination against them. The ruling of the lower Court delivered on 11/5/2015 is accordingly affirmed.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft the lead judgment of my learned brother, A.O. Lokulo-Sodipe JCA just delivered. I agree with the reasoning and conclusions in the lead judgment, beautifully scripted and delivered.
We have always stated that it is highly immoral and offensive for a party to enjoy the benefits of a contract, and when called upon to pay for it, pleads statute of limitation, to escape responsibility, while still enjoying the proceeds of the contract. See First Bank Plc Vs Standard Polyplastic Industries Ltd (2018) LPELR – 44081 CA, where it was held.
Appellant in my view, cannot raise any issue of statute of limitation against the liability and claims of the Respondent, even if the doctrine of statute of limitation could be invoked, to stop recovery of debt accruing in a Contractual transaction as in this case. See A.G. Adamawa State Vs A.G. Federation (2014) 14 NWLR (Pt. 1428) 515 at 566, where the Supreme Court held:
As clearly shown, in the statement of claim of the Plaintiff, their cause of action arose at the acceptance and acknowledgment of indebtedness by the defendant in July 1983, and time therefore began to run effectively from then.
It should be appreciated that, in law relating to statute of limitation, time cannot run out in a situation of a continuous act of damage or injury. It should also be added that it would be immoral and legally offensive, in my opinion, for a party to seek to invoke the rule of statute bar, just to defeat a legitimate claim for refund of money, and escape responsibility, after taking advantage of a contract and benefit from the transaction for which he is called upon to account.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
N.M. Obioha (SSC, Imo State) For Appellant(s)
S.C. Imo For Respondent(s)
