DEACON GOKE OJEDIRAN V. THE GOVERNOR OF OYO STATE & ANOR
(2013)LCN/6489(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2013
CA/I/M39/2007
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
DEACON GOKE OJEDIRAN Appellant(s)
AND
THE GOVERNOR OF OYO STATE & ANOR Respondent(s)
RATIO
DUTY OF THE COURT IN COMING TO A DECISION ON WHETHER AN ACTION THAT IS SUBJECT TO A LIMITATION STATUTE IS STATUTE-BARRED OR NOT
The law is quite clear on what the court should do in coming to a decision on whether an action that is subject to a limitation statute is statue barred or not. All that the court has to do is to look at the time that the cause of action arose as shown in the writ of summons and the statement of claim, and compare it with when the action was filed. If a comparison of the two dates puts the case within the period of the time stipulated in the limitation statute, the action is competent. If not, the action is statute barred. The role of the Judge is limited or restricted to a prima facie examination of the processes aforementioned. He is not required to go further afield. In the case of Alhaji Jubrin Bala Hassan v. Dr. Muazu babangida Aliyu & Ors. (2010) 17 NWLR part 1223 page 547 at p.619 – 620; the Supreme Court, per Adekeye JSC stated the position of the law thus:
“In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the limitation law, then the action is statute barred”.
The court also said in that case at p.619 thus;
“It is sufficient if prima facie the date of taking the cause of action outside the prescribed period is disclosed in the Writ of Summons and Statement of Claim”.In the writ of summons, the plaintiff endorsed his claim thus:
(1) A DECLARATION that the removal of the plaintiff as full-time member of the Oyo State Independent Electoral Commission by the defendants without just cause is unconstitutional, ultra-vires, null and void.
(2) AN ORDER for payment to the plaintiff of salary, allowances and all other entitlements for the unexpired period of the plaintiff’s five year term of office as a full-time member of the Oyo State Independent Electoral Commission from 1st June, 2003 to December, 2004″. PER DANIEL-KALIO, J.C.A.
DEFINITION OF A CAUSE OF ACTION
A cause of action of course is any fact relied upon by the plaintiff which results from the act of the defendant which gives rise to a justiciable complaint. See Ogbimi v. Ololo (1993) 7 NWLR part 304 p.130 at p.136. Cause of Action is also defined as the factual situation stated by the plaintiff which if substantiated, entitles him to a remedy against the defendant. See Alhaji Jubrin Bala Hassan v. Dr. Muazu Babangida Aliyu & Ors (supra) at 589. See also Nosiru Bello & Ors v. Attorney General, Oyo State & ors (1986) 5 NWLR part 45 p.828. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT THE PUBLIC OFFICERS PROTECTION ACT APPLIES TO CONTRACTS
In FGN vs. Zebra Energy Ltd (2002) 18 NWLR part 798 p.162 at p.197, the Supreme Court stated thus:
“The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done”.
Also in the case of Osun State Government v. Dalami (Nig.) Ltd (2007) 9 NWLR part 1038 p, 66 at p.100, the Supreme Court approved the statement of the law as made by Commarmond SP.J in Salako vs. LEDB (1953) 20 NLR p.169 thus:
“I am of the opinion that Section 2 of the Public Officers (protection) Ordinance does not apply in cases of recovery of land, breaches of contract, claims for the work and labour done, etc”. PER DANIEL-KALIO, J.C.A.
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal in this case is over a decision of the High Court of Oyo State in Suit No. I/753/2003 that the appellant could not maintain his action against the respondents by reason of the limitation period stipulated in the Public Officers Protection Act.
The appellant was the plaintiff in the lower court. His case as gathered from the Amended Statement of Claim before the lower court in summary is this: by a letter dated 30/12/99 he was appointed a full-time member of the Oyo State Independent Electoral Commission. Under the Constitution of the Federal Republic of Nigeria 1999, the tenure of his appointment was a period of 5 years. The Constitution also provided for the way and manner in which he could be removed from office. He accepted the appointment, served as a member of the said Independent Electoral Commission and earned his salary and allowances up to the end of May, 2003. On 1/6/2003, the Governor of Oyo State (sued as the 1st defendant in the lower court) gave an address at the Oyo State House of Assembly in which he made a request of that House for a review of the composition and membership of the Oyo State Independent Electoral Commission. In that same month of June 2003, there was a publication on radio, television and the Nigerian Tribune Newspaper to the effect that the Oyo State Independent Electoral Commission had been dissolved. That same media statement was contained in the official report or hansard of the Oyo State House of Assembly. No letter was written to the appellant about the dissolution of the Commission. Shocked, the appellant instructed his Solicitors to write to the Secretary to the Government of Oyo State to enquire if he was affected by the dissolution of the Independent Electoral Commission. His Solicitors by a letter dated 20/6/2003 complied with the instruction. There was however no reply to the letter, instead an announcement was made over the radio and television about the appointment and swearing in of some persons as Chairman and Members of the Oyo State Independent Electoral Commission, Aggrieved, the appellant filed a suit at the lower court where he sought the following:-
1. A DECLARATION that the plaintiff has not been lawfully removed as a full-time member of the Oyo State Independent Electoral commission in accordance with the provisions of the constitution of the Federal Republic of Nigeria, 1999.
2. AN ORDER for payment to the plaintiff by the defendant of the total sum of N4,326,522:52k being salary, allowances and all other entitlements for the unexpired period of the plaintiff’s five year term of office as full-time member of Oyo State Independent Electoral Commission from 1st June, 2003 to December, 2004.
The respondents on 21/4/2006 filed a Notice of preliminary Objection dated 12/4/2006 challenging the jurisdiction of the lower court to entertain the suit on the ground that the action is statute barred, having been brought in contravention of section 2(a) of the public officers protection Act, Cap 41, Laws of the Federation of Nigeria, 2004. The trial Judge considered the preliminary objection and on 18/12/2006 delivered a ruling in which he held that the suit was statute barred. He accordingly dismissed it.
Dissatisfied with the ruling, the appellant through his counsel Babatunde A. Aiku Esq. filed a Notice of Appeal on 21/2/2011 challenging it on two grounds. The said brief by an order of this court was deemed as properly filed on 17/4/2012. The Respondents Brief of Argument was prepared by Adegboyega Salawu Esq., Senior Legal Officer, Oyo State Ministry of Justice. It was filed on 15/5/2012.
Appellant’s counsel identified a single issue for determination; viz –
Whether in view of the available materials and the state of the law, the lower court was right in dismissing the plaintiffs claim on the ground that it was statute barred.
Learned counsel referred to section 201 of the constitution of the Federal Republic of Nigeria 1999 on the removal of any person holding office as chairman or Member of the state Independent Electoral commission. He submitted that from the pleadings it is clear that the dissolution of the Oyo State Independent Electoral commission and the constitution of a new one, did not take place during the address of the Governor of Oyo State at the Oyo State House of Assembly on the 1st of June, 2003. He contended that the removal of the appellant from office as a member of the Oyo State Independent Electoral commission was also not communicated to the appellant on the 1st of June, 2003.
Learned counsel argued that although no date was pleaded for the purpose of calculating the date in which the cause of action arose, the learned trial Judge held in his ruling that the cause of action arose on the 1st of June, 2003. He submitted that the request of the 1st respondent (the Governor of Oyo State) to the House of Assembly on the 1st of June, 2003 did not constitute a completed act of removal under section 201 of the 1999 constitution and therefore did not give rise to a cause of action.
He argued that the trial Judge was wrong in taking the 1st of June 2003 as the date that the cause of action arose. The trial Judge took that date he submitted, merely because the appellant claimed his salary from that date. He contended that the correct position of the law given the facts of the case can only be that the cause of action arose by the end of June 2003 when the respondents failed to pay the appellant’s salary. He submitted that the trial Judge ought to have taken judicial notice of the fact that salaries are payable in arrears at the end of each month. He contended that if the limitation period had been computed from the end of June 2003, the trial Judge would have found that the appellant’s action was commenced within time.
Appellant’s counsel submitted that the respondents acted outside their statutory or constitutional duty as contained in section 201 of the 1999 Constitution and in clear abuse of their office.
Counsel submitted that if the trial Judge had directed himself correctly, he would have held even if the action was filed outside the limitation period of three months, that the appellant’s action is competent since the respondents acted outside the colour of their offices or outside their constitutional duty and therefore were not entitled to the protection of Section 2(a) of the public Officers protection Act.
Learned counsel submitted that although the appellant made the case that the Public officer’s protection Act did not protect public officers who were in breach of their duty, the trial Judge failed to consider that case. His failure in that regard he contended, led to a miscarriage of justice.
Appellant’s counsel referred the court to FGN vs. Zebra Energy Ltd. (2002) 18 NWLR part 798 p. 196 where it was held that the Public officers Protection Act was not intended to apply to contract cases. He also cited the case of Alao vs. University of Ilorin (2008) 1 NWLR part 1069 p.421. He referred to the judgment of the trial Judge at page 12 lines 17 – 19 of the Record of Appeal and submitted that the trial Judge in effect found as a fact that the appellant’s contract of appointment was breached by the respondents. He urged the court to exercise its power under section 15 of the Court of Appeal Act and consider and determine the issue which the trial Judge failed to consider and determine.
The respondents counsel adopted ipsissima verba the sore issue for determination as formulated by the appellant’s counsel. He contended that from the appellant’s writ of summons and Amended statement of claim, it is clear that the cause of action arose on the 1st of June, 2003. The said Writ of Summons and the initial Statement of Claim he pointed out, were filed on the 24th of September 2003, meaning that they were filed 24 days after the time allowed by section 2(a) of the public officers protection Act. Learned counsel submitted that having not filed the writ of summons and the statement of claim within three months as required by section 2(a) of the Public Officers Protection Act, the appellant’s action was statute barred.
Learned counsel contended that the appellant’s pleading that he was under contract of service as a full-time member of the Oyo State Independent Electoral commission for a term of 5 years and that his removal from office was a breach of his contract of service, were points which would have been in his favour had he filed his writ of summons and statement of claim before the expiration of the statutory period of three months fixed by the public officers protection Act. He referred to the case of Egbe vs. Adefarasin (1987) NWLR part 47 where the Supreme Court held that however meritorious issues might be, their merit will count for nothing if the action is statute barred. He referred also to Ibrahim v. JSC (1998) 14 NWLR part 584 page 1 at p.6; Obiefuna vs. Oloye (1961) 1 SCNLR p, 144. He urged the court to dismiss the appeal as it lacks merit.
The issue for determination as agreed by the parties to this appeal is whether on the available materials and the state of the law, the lower court was right in dismissing the appellant’s claim on the ground that it is statute barred. The argument of the appellant’s counsel, it seems to me, rests on a tripod. The first leg of the tripod is that it was erroneous to have held as the trial Judge did, that the action was filed outside the time limited by the Public Officers Protection Act, the second leg of the tripod is that even if the action was filed outside the time limited by the public officers Protection Act, it was still validly filed since the respondents acted outside the colour of their offices or outside the colour of their constitutional duty; the third leg of the tripod is that the public officers protection Act does not apply in cases that have to do with breach of contract. Now to the first part of the tripartite argument: Applicant’s counsel as will be recalled submitted that the cause of action arose by the end of June 2003 when the respondents failed to pay the appellant’s salary. He urged that the trial Judge ought to have taken judicial notice of the fact that salaries are payable in arrears at the end of each month. Is the trial Judge required to take such judicial notice? The law is quite clear on what the court should do in coming to a decision on whether an action that is subject to a limitation statute is statue barred or not. All that the court has to do is to look at the time that the cause of action arose as shown in the writ of summons and the statement of claim, and compare it with when the action was filed. If a comparison of the two dates puts the case within the period of the time stipulated in the limitation statute, the action is competent. If not, the action is statute barred. The role of the Judge is limited or restricted to a prima facie examination of the processes aforementioned. He is not required to go further afield. In the case of Alhaji Jubrin Bala Hassan v. Dr. Muazu babangida Aliyu & Ors. (2010) 17 NWLR part 1223 page 547 at p.619 – 620; the Supreme Court, per Adekeye JSC stated the position of the law thus:
“In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the limitation law, then the action is statute barred”.
The court also said in that case at p.619 thus;
“It is sufficient if prima facie the date of taking the cause of action outside the prescribed period is disclosed in the Writ of Summons and Statement of Claim”.In the writ of summons, the plaintiff endorsed his claim thus:
(1) A DECLARATION that the removal of the plaintiff as full-time member of the Oyo State Independent Electoral Commission by the defendants without just cause is unconstitutional, ultra-vires, null and void.
(2) AN ORDER for payment to the plaintiff of salary, allowances and all other entitlements for the unexpired period of the plaintiff’s five year term of office as a full-time member of the Oyo State Independent Electoral Commission from 1st June, 2003 to December, 2004″.
In the Amended statement of claim, the appellant claimed thus –
(1) A DECLARATION that the plaintiff has not been lawfully removed as a full-time member of the Oyo State Independent Electoral Commission in accordance with the provisions of the constitution of the Federal Republic of Nigeria, 1999.
(2) AN ORDER of payment to the plaintiff by the defendants of the total sum of N4, 326,522:52k being salary, allowances and all other entitlements for the unexpired period of the plaintiff’s five year term of office as full time member of Oyo State Independent Electoral commission from 1st June, 2003 to December 2004 ….”
It is clear from the claims as endorsed in both the writ of summons and the Amended statement of claim shown above, that prima facie, the cause of action arose on the 1st of June, 2003. A cause of action of course is any fact relied upon by the plaintiff which results from the act of the defendant which gives rise to a justiciable complaint. See Ogbimi v. Ololo (1993) 7 NWLR part 304 p.130 at p.136. Cause of Action is also defined as the factual situation stated by the plaintiff which if substantiated, entitles him to a remedy against the defendant. See Alhaji Jubrin Bala Hassan v. Dr. Muazu Babangida Aliyu & Ors (supra) at 589. See also Nosiru Bello & Ors v. Attorney General, Oyo State & ors (1986) 5 NWLR part 45 p.828.The cause of action in this case is the unlawful removal from the office of the appellant as a member of the Oyo State Independent Electoral Commission. That fact of removal caused him loss of pay and entitlement from 1st June 2003 to when his appointment would have ended by effluxion of time. That being the case, I regard the argument of appellant’s counsel on what happened when the Governor addressed the Oyo State House of Assembly on 1st June 2003 and its legal effect as a mere red herring. The fact is writ large that the appellant claimed his salary and entitlements from 1st June 2003. He would not have done so if the cause of action did not arise on that day. He did not put that date in his processes for the fun of it.
I now turn to the second leg of the appellant’s argument which is that even if the appellant brought the action outside the period stipulated by the Public Officers Protection Act, the action was still competent because the respondents acted outside the colour of their constitutional duty.
Section 2 of the public Officers protection Act provides:
“When any action, prosecution or other proceedings commenced against any person for any act done in pursuance of 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 –
(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 continuance of damage or injury, within three months next after the ceasing thereof”.
The above provision shows that the protection of a public officer by the Public officers Protection Act is within a defined compass. Therefore to hold that the Public Officers Protection Act is available to protect a public officer from being sued three months next after cause of action has arisen, the court must ask itself the following questions with regard to the Public officer sued.
1. Did he carry out the act for which he is sued in pursuance of an act, law, public duty or authority?
2. Did he intend to execute an act, law, public duty or authority in respect of which he had the capacity?
3. Was he alleged to have neglected or defaulted in the execution of any act, law, duty or authority?
If the answer to the above questions is in the affirmative then the Public officers Protection Act will avail the public officer and any action brought against him after three months of the accrual of the cause of action will be statute barred. If on the other hand the answer to the above questions is in the negative, the Public Officers Protection Act will not avail the public officer.
In this case there was a statutory provision, a provision of the constitution for that matter, which governs the removal of someone in the position of the appellant. The constitutional provision (Section 201 of the Constitution) reads:
1. Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by the two-thirds majority of the House of Assembly of the State praying to be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
2. The section applies to the offices of the Chairman and Members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.
The above provision empowers the Governor to remove someone such as the appellant from office when he acts on an address supported by two-thirds majority of the House of Assembly. The questions that arise are:
(1) Can the address made to the Oyo State House of Assembly by the Governor of Oyo State on 1/6/2003 be said to be in pursuance of Section 201 of the Constitution?
(2) Did the Governor of Oyo State have the capacity to remove the appellant from office through his address to the House of Assembly on 1/6/2003?
It is my considered view that the answer to both questions will have to be in the negative. It will appear that the learned trial Judge also came to the same conclusion when he held thus:
“I am also quite aware that the plaintiff was removed from office because of a review of the members of Oyo State Independent Electoral Commission and not as a result of any of the grounds for removal stipulated in Section 201 of the 1999 Constitution”. (The underlined is for emphasis)
Instead of proceeding to further hold that the respondents acted outside their constitutional duty and therefore could not benefit from the Public Officers protection Act, the trial Judge concluded thus:
“All these points would have favoured the plaintiff if he had filed his Writ of
Summons and Statement of Claim before the expiration of the three months”
In the case of Alhaji Jubrin Bala Hassan v. Dr. Muazu Babangida Aliyu & 2 Ors (2010) 17 NWLR part 1223 p.547 at p.621, the Supreme Court per Adekeye JSC stated thus?
“A Public officer can be sued outside the limitation period of three months, if at all times material to the commission of the act complained of; he was acting outside the colour or scope of his office or outside his statutory or constitutional duty”.
At p.591 of the law report, Onnogen JSC put it this way in the same case:
“It is however correct that when a Public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act”.Appellant’s Counsel was right when he submitted that the respondents acted outside their constitutional duty and were therefore not entitled to the protection provided by Section 2(a) of the Public Officers Protection Act. The trial Judge was in error in not coming to the conclusion that the respondents could not have the protection of the Public Officers Protection Act having accepted that the appellant was not removed pursuant to Section 201 of the Constitution,
I now turn to the third plank of the appellant’s argument which is that the Public Officers Protection Act was not intended to apply to contract cases. On this issue, the trial Judge arrived at the conclusion that there was a contract which the respondent’s breached. His words at page 12 of the Record of Appeal:
“It is also not in controversy that the plaintiff’s contract appointment was for five years but that he was removed prematurely before the expiration of these five years”.
Having come to the above conclusion, the trial Judge ought to have given the required legal effect of that conclusion which is that the public Officers Protection Act could not avail the respondents. In FGN vs. Zebra Energy Ltd (2002) 18 NWLR part 798 p.162 at p.197, the Supreme Court stated thus:
“The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done”.
Also in the case of Osun State Government v. Dalami (Nig.) Ltd (2007) 9 NWLR part 1038 p, 66 at p.100, the Supreme Court approved the statement of the law as made by Commarmond SP.J in Salako vs. LEDB (1953) 20 NLR p.169 thus:
“I am of the opinion that Section 2 of the Public Officers (protection) Ordinance does not apply in cases of recovery of land, breaches of contract, claims for the work and labour done, etc”.The rational for the provision that the Public Officers Protection Act does not apply to cases of contract is probably rooted in the maxim pacta sunt servanda i.e. agreements must be kept. It seems to me that it will be a negation of the age old concept of sanctity of contracts if a parry to it being a public officer when sued, takes refuge under the Public Officers Protection Act.
In view of the state of the law, it is clear that the appellant’s suit is not one that is statute barred. It is one in which the respondents acted outside the colour or scope of their statutory or constitutional duty and one that arose out of a contract, and therefore not one that is limited by the Public Officers Protection Act. In the final analysis, the appeal has merit. It is ordered that the case be heard on its merits before the Oyo State High Court. I make no order as to costs.
MONICA B. DONGBAN-MENSEM, J.C.A: I have read the lead Judgment of my learned brother Daniel-Kalio JCA.
In view of the presumptuous pronouncements of the learned trial Judge as to the manner in which the Appellant was removed, I agree that the suit of the Appellant should be heard on the merit,
The Hon. Chief Judge of Oyo State shall assign this matter to another Judge for trial and determination. I too make no order as to cost.
CHIDI NWAOMA UWA, J.C.A.: I agree.
Appearances
L. A. O. NylanderFor Appellant
AND
M. O. Adebayo Attorney-General Oyo State with A. Salawu Principal State CounselFor Respondent