DR. G. O. ABODUNRIN V. THE GOVERNOR OF OYO STATE & ANOR
(2013)LCN/6340(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2013
CA/I/42/07
JUSTICES:
MONICA B. DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
DR. G. O. ABODUNRIN – Appellant(s)
AND
1. THE GOVERNOR OF OYO STATE
2. ATTORNEY GENERAL OYO STATE – Respondent(s)
RATIO
WHETHER OR NOT A LAW FIRM CAN SIGN ORIGINATING PROCESSES
A look at the originating processes the writ of summons and amended statement of claim, there is no doubt that they were endorsed by a law firm.
By the provision of Sections 2(1) and 24 of the Legal Practitioners’ Act, Laws of the Federation of Nigeria, 2004, Section 2(1) provides thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
Section 24 of the Act provides thus:
“In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say ………. Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
The effect of the above provisions may seem harsh on matters that were nearing conclusion as in the present case but the necessity of it and the longer lasting effect of protecting the interest of members of the legal profession practicing law is far better in the long run. Otherwise, any staff of the firm or worse still anybody out there could sign court process and all he would require is the name of any law firm beneath his signature. A lawyer whose name is on the roll of practitioners should and ought to sign legal documents, with the name written in black and white, anything short of this is incompetent and unacceptable, In the case of FIRST BANK OF NIGERIA PLC & ORS V. SALMANU MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 483 PARAGRAPHS B-C, the Apex Court (Panel of the full court) re-emphasised the position of the law and the reasoning behind it as follows:
“The purpose of legislation is of permanent factor. The purpose of Section 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession.”
No doubt, Bandele A. Aiku and Co. is not a person on the roll of legal practitioners who could practice law. A law firm is simply not a lawyer on the call roll of the Supreme Court of Nigeria. Further, in the case of OKETADE V. ADEWUNMI (2010) ALL FWLR (PT. 526) 511 at 516 (2010) 8 NWLR (pt. 1195) 63 at 74 PARAGRAPHS D-H the Apex court stated the position of the law thus:
“There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is a name qua solicitor and advocate of the supreme court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonymous. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner in Nigeria … and that it violates Section 2(1) and 24 of the Legal Practitioners Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner and the definition of the regal practitioner in Section 24 of the Act does not include Olujimi and Akeredolu. This to me, is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal process that brought this case on appeal. I am in entire agreement with Counsel for the Respondent that as the process which brought the appeals are incompetent the appeal itself is incompetent.”
See, SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) P. 317 at 337-338 PARAGRAPHS H-A where His Lordship Rhodes Vivour, JSC explained how processes filed in court are to be signed thus:
“All processes filed in court are to be signed as follows:
(a) First the signature of Counsel, which may be any contraption;
(b) Secondly, the name of Counsel clearly written;
(c) Thirdly, who counsel represents;
(d) Fourthly, name and address of legal firm.
Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the Legal Practitioners Act. There must be strict compliance with the law.”
The resultant effect is that a signature without the name of Counsel beneath it is incurably bad, see, ALAWIYE V. OGUNSANYA (2013) 5 NWLR (PT. 1348) PAGE 570, 611-612, 617-618, and MIN. OF WORKS AND TRANSPORT, ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) PAGE 481 at PAGE 496 PARAGRAPH A-B. PER UWA, J.C.A.
WHETHER OR NOT AN ORIGINATING PROCESS NOT PROPERLY INITIATED IS INCOMPETENT
His Lordship Muntaka-Coomassie, JSC reiterated thus:
“I have no doubt in my mind that the originating process having not being (sic) properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent. See: also OKAFOR V. NWEKE (2007) ALL FWLR (PT. 360) 1016 at 1025-1027, (2007) 10 NWLR (PT. 1043) 521, THE REGISTERED TRUSTEE OF APOSTOLIC CHURCH LAGOS AREA V. AKINDELE (1967) NMLR 263 at 265, 1967 SCNLR 205.”
The competence and validity of the originating processes in any proceeding is fundamental and cannot be dispensed with. In the case of KIDA V. OGUNMOLA (2006) ALL FWLR (PT. 327) 402 AT 412, (2006) 13 NWLR (PT. 997) 327 AT 394 PARAGRAPHS E-F the Apex court held thus:
“The originating processes in a proceeding before a court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.” PER UWA, J.C.A.
WHETHER OR NOT THE SUPREME COURT MUST PRONOUNCE ON OTHER ISSUES PLACED BEFORE IT WHERE IT FINDS THE TRIAL COURT HAS NO JURISDICTION IN THE CASE
The Supreme Court, being the final court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court had no jurisdiction in this case, since the stance of the Court of Appeal on incompetence of the originating processes may be faulted by the Supreme Court, this Court ought not to ignore the issue raised in the appeal, it should be pronounced upon. See, NIPOL LTD V. BIOKU INVESTMENT & PROM LTD. (1992) 23 NSCC (pt. 1) 606 AT 618; (1992) 3 NWLR (pt. 232 727 AT 747, FRANCIS ADESEGUN KATTO V. CBN (2000) 18 WRN 108; (2001) FWLR (pt. 56) 778, (1990) 22 NSCC (PT. 2) 736; (1991) 9 NWLR (pt. 214) 126 AT 149, see the observations of Akpata, JSC in both cases and a decision of this Court in AWOJOLU v. ODEYEMI (2013) 14 WRN PAGE 28 AT PAGES 77-80 and 81-83, the view I also expressed therein, while also relying on the above decisions. In FRANCIS ADESEGUN KATTO V. CBN (Supra) His Lordship Akpata, JSC while also relying on his previous decision in Bioku’s case (Supra) made the following observations in this regard:
“Where trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both Counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted bar the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.” (Italics supplied). PER UWA, J.C.A.
CHIDI NWAOMA, UWA, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff in the lower court. From his amended statement of claim in the Oyo State High Court, sitting at Ibadan, he claimed to have been appointed a full time member of the Oyo State Independent Electoral Commission (OSIEC) (herein after referred to as the Commission) that he had not been lawfully removed in accordance with the provisions of the 1999 Constitution of Federal Republic of Nigeria and an order of payment to him by the defendants the sum of N4,326,522.52 being salary, allowances and other entitlements for the unexpired period of his five years term of office as a member of the commission.
The defendants’ case is that the plaintiff was removed from office because of the review of the membership and composition of Oyo State independent Electoral Commission, and filed a preliminary objection dated 12th April, 2006 to the effect that the plaintiff’s action is statute barred pursuant to the provisions of Section 2(a) of the Public Officers Protection Act, CAP 41, Laws of the Federation of Nigeria, 2004 and prayed for an order striking out the suit.
The trial judge in respect of the preliminary objection, in his ruling delivered on 18th December, 2006 upheld the defendants’ preliminary objection and dismissed the plaintiff’s claim as being statute barred, pages 8 – 13 of the records.
Aggrieved by the decision, the plaintiff appealed to this court.
A sole issue was formulated by the appellant for the determination of this appeal. It is as follows:
“Whether in view of the available materials and the state of law, the lower court was right in dismissing the plaintiff’s claim on the ground that it was statute barred”.
The respondents adopted the sole issue raised by the Appellant for the determination of the Appeal. In arguing the Appeal, the learned counsel to the appellant Seni Adio Esq. with Nkechi Okoye (Miss) for the Appellant adopted and relied on the Appellant’s Brief dated 18/5/09 filed on 25/5/09, deemed filed on 7/3/13, in urging us to allow the appeal.
It was submitted on behalf of the appellant that he was under a contract of five years as a member of the Oyo State Independent Electoral Commission and was removed from office in breach of his contract of service for purpose of review of membership and composition of the commission, a ground not provided for by Section 201 of the Constitution of the Federal Republic of Nigeria, 1999 (the Constitution), the defendant was said to have admitted that the plaintiff was removed for the purpose of review of membership and composition of the plaintiff’s commission. It was contended by the appellant that the trial court taking 1st June as the date the cause of action arose was wrong. It was argued that the removal of the plaintiff from the office was not communicated to him as at 1st June, the date the trial court held the cause of action arose even though the plaintiff claimed salaries from 1st June, 2003. We were urged to hold that the cause of action arose at the end of June, 2003 when the defendants’ refused to pay arrears of salary. It was argued that the cause of action arose at the end of June, 2003 therefore the action was not statute barred; see IROLO V. UKA (2002) 14 NWRL (pt.788) 195 at 238 C-F ARAKA V. EJEAGWU (2009) 15 NWLR (pt. 692) 684 at 718 A and IBRAHIM V. JSC (1998) 14 NWLR (pt. 584) 1 at 32 E-F.
It was further submitted that Section 2 (a) of the Public Officers Protection Act is not applicable to breach of contract cases. It was submitted that the trial court found as a fact that the plaintiff’s contract of appointment was breached by the defendants, and that Section 2(a) of the Public officers Protection Act is not applicable to breach of contract cases.
We were urged to exercise our power under Section 15 of the Court of Appeal Act to consider and determine the issue which the trial judge failed to consider and determine, see OWNERS OF THE MV. V. NAK (2008) 11 NWLR (pt. 1097) 182 at 209 C-E.
In response, the learned Counsel to the Respondents Adegboyega Salawu Esq. Principal State Counsel Oyo State Ministry of Justice appearing with Kuforiji Kehinde Esq. adopted and relied on the Respondents’ brief dated 8/4/13 filed on 12/4/13 and argued that the bone of contention is that the action is statute bared since the Suit was filed three months and twenty four days after the occurrence of the cause of action, reliance was placed on the case of EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) PAGE 1 at page 3 ration 8 where the meaning of a statute barred action was defined and Section 2(a) of the Public Officers protection Act.
It was argued that from the Appellant’s Writ of Summons, Statement of Claim and the Amended Statement of Claim, he was appointed his post by a letter dated 30th December, 1999 and was paid his salaries and allowances up to 30th day of May, 2003.
From the Appellant’s Amended Statement of Claim, the 1st Respondent on the 1st day of June, 2003 requested the Oyo State House of Assembly to review the composition and membership of the Oyo State Independent Electoral Commission. Also, that the Appellant in his Writ of Summons and Amended Statement of Claim, claimed salaries, allowances and all other entitlement for the unexpired period of five years term of office as the member of Oyo State Independent Electoral Commission from 1st June, 2003 to December, 2004. The learned Counsel contended that from these, it is clear that the cause of action arose on the 1st day of June, 2003.
It was argued that the Appellant’s case would have been favourable from his pleadings, if he had filed his Writ of Summons and Statement of Claim before the expiration of the three months stipulated by law, page 6 of the Respondents’ brief, last paragraph.
It was further argued that the Appellant failed to show that the Respondents acted outside the colour of their offices or outside their statutory or constitutional duties. Also, contrary to the argument of the learned Counsel to the Appellant, it was submitted that the Respondents pleaded that they are Public Officers in their defence as required by law following the order of grant of amendment of the Statement of Defence. Reliance was also placed on the case of NWAKANMA v. MILITARY ADMINISTRATOR OF ABIA STATE (1995) 4 NWLR (PT. 388) PAGE 185 at Page 188 ratio 1(a) and (b) and Order (s) 24 Rule 2 and 25 Rule 6 of the Oyo State High Court Civil Procedure Rules (1988).
It was concluded that the lower court was right in refusing and dismissing the reliefs sought by the Appellant. We were urged to dismiss the appeal.
After the appeal had been fully argued, the judgment was reserved. The Court on a later date suo motu invited learned counsel to both parties to address it on the competence of the originating processes of the action, these are the writ of summons at Pages 1-2 of the printed records of appeal which was issued by Bandele A. Aiku & Co. with a signature above it, and the Amended Statement of Claim at pages 3-4 of the records of appeal which was similarly endorsed. These were processes filed in the lower court by the Appellant as plaintiff.
In reaction, the learned counsel to the Appellant Seni Adio Esq. appearing with Nkechi Okoye (Miss) aligned himself with the arguments of the learned counsel Ademola Bakre Esq. who appeared for the Appellant in a sister case Appeal No. CA/I/41/207 CHIEF OJO MORAKINYO V. THE GOVERNOR OF OYO STATE & ANOR in which Mr. Bakre had urged us to distinguish the case of OKAFOR V. NWEKE (2007) ALL FWLR (PT. 360) 1016; (2007) 10 NWLR (PT. 1043) 521, from the present case in that the writ of summons was signed by a learned Senior Counsel in the firm who also typed the name of his firm on the writ and amended statement of claim, reliance was placed on COLE v. MARTINS (1968) SC NLR 215; ALL NLR p. 161 at 165 and N.N.B. PLC V. DENCLAG LTD. (2005) 4 NWLR (PT. 916) 549.
In alternative argument, it was argued that even if the writ of summons was wrongly signed, the Notice of Appeal was signed by Babatunde Aiku Esq. We were urged to hold that it was the same person that signed the writ, which is not disputed.
Learned Counsel conceded that where a process is initiated by an irregular mode, it affects the jurisdiction of the court but, we were urged not to sacrifice justice for technicality, we were urged to exercise our discretion in favour of the Appellant, since the signature on the writ of summons is the same as that on the Notice of Appeal. Mr. Adio urged us to distinguish the decision in OKAFOR V. NWEKE (SUPRA) and determine the appeal on its merits.
On their part, the learned Counsel to the Respondents M. O. Adebayo Esq., the Honourable Attorney General of Oyo State appearing with A. Salawu Esq., Principal State Counsel, submitted that the defect is fundamental and is incurable in that the writ of summons and statement of claim were issued by a law firm contrary to S. 2(1) of the Legal Practitioners Act, reference was made to OKAFOR v. NWEKE (SUPRA); F.B.N. V. MAIWADA (2013) 5 NWLR (PT. 1348) P. 444, which considered the decision in COLE V. MARTINS, we were urged to strike out the appeal.
It was submitted in the alternative that this Court had no jurisdiction to consider this appeal but, in the interest of justice, decisions having been given on the merits in the sister appeals, in CA/I/40/07 delivered by this Court on 11/12/12 and CA/I/39/07 delivered on 11/6/13 we were urged to determine the appeal on the merits.
A look at the originating processes the writ of summons and amended statement of claim, there is no doubt that they were endorsed by a law firm.
By the provision of Sections 2(1) and 24 of the Legal Practitioners’ Act, Laws of the Federation of Nigeria, 2004, Section 2(1) provides thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
Section 24 of the Act provides thus:
“In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say ………. Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
The effect of the above provisions may seem harsh on matters that were nearing conclusion as in the present case but the necessity of it and the longer lasting effect of protecting the interest of members of the legal profession practicing law is far better in the long run. Otherwise, any staff of the firm or worse still anybody out there could sign court process and all he would require is the name of any law firm beneath his signature. A lawyer whose name is on the roll of practitioners should and ought to sign legal documents, with the name written in black and white, anything short of this is incompetent and unacceptable, In the case of FIRST BANK OF NIGERIA PLC & ORS V. SALMANU MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 483 PARAGRAPHS B-C, the Apex Court (Panel of the full court) re-emphasised the position of the law and the reasoning behind it as follows:
“The purpose of legislation is of permanent factor. The purpose of Section 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession.”
No doubt, Bandele A. Aiku and Co. is not a person on the roll of legal practitioners who could practice law. A law firm is simply not a lawyer on the call roll of the Supreme Court of Nigeria. Further, in the case of OKETADE V. ADEWUNMI (2010) ALL FWLR (PT. 526) 511 at 516 (2010) 8 NWLR (pt. 1195) 63 at 74 PARAGRAPHS D-H the Apex court stated the position of the law thus:
“There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is a name qua solicitor and advocate of the supreme court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonymous. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner in Nigeria … and that it violates Section 2(1) and 24 of the Legal Practitioners Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner and the definition of the regal practitioner in Section 24 of the Act does not include Olujimi and Akeredolu. This to me, is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal process that brought this case on appeal. I am in entire agreement with Counsel for the Respondent that as the process which brought the appeals are incompetent the appeal itself is incompetent.”
See, SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) P. 317 at 337-338 PARAGRAPHS H-A where His Lordship Rhodes Vivour, JSC explained how processes filed in court are to be signed thus:
“All processes filed in court are to be signed as follows:
(a) First the signature of Counsel, which may be any contraption;
(b) Secondly, the name of Counsel clearly written;
(c) Thirdly, who counsel represents;
(d) Fourthly, name and address of legal firm.
Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the Legal Practitioners Act. There must be strict compliance with the law.”
The resultant effect is that a signature without the name of Counsel beneath it is incurably bad, see, ALAWIYE V. OGUNSANYA (2013) 5 NWLR (PT. 1348) PAGE 570, 611-612, 617-618, and MIN. OF WORKS AND TRANSPORT, ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) PAGE 481 at PAGE 496 PARAGRAPH A-B.
His Lordship Muntaka-Coomassie, JSC reiterated thus:
“I have no doubt in my mind that the originating process having not being (sic) properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent. See: also OKAFOR V. NWEKE (2007) ALL FWLR (PT. 360) 1016 at 1025-1027, (2007) 10 NWLR (PT. 1043) 521, THE REGISTERED TRUSTEE OF APOSTOLIC CHURCH LAGOS AREA V. AKINDELE (1967) NMLR 263 at 265, 1967 SCNLR 205.”
The competence and validity of the originating processes in any proceeding is fundamental and cannot be dispensed with. In the case of KIDA V. OGUNMOLA (2006) ALL FWLR (PT. 327) 402 AT 412, (2006) 13 NWLR (PT. 997) 327 AT 394 PARAGRAPHS E-F the Apex court held thus:
“The originating processes in a proceeding before a court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”
In the prevailing circumstances, the originating processes the writ of summons and the Amended Statement of Claim having not been properly initiated is incompetent and the appeal from it is also incompetent. For these reasons, I set aside the processes and proceedings of the trial court for being incompetent and a nullity. In consequence the Ruling of the lower court is set aside for lack of jurisdiction. The suit before the lower court is also struck out.
Having set aside the processes and proceedings of the lower court for being incompetent and a nullity, this appeal should end here, but this Court is an intermediate court that could be wrong in its views and I could be wrong, more so the issue that disposed of the suit and the I processes was raised by the court suo motu before learned counsel addressed the court on the issue of competence of the originating processes. I am duty bound and expected to resolve the sole issue raised by the parties when the appeal was argued. The Supreme Court, being the final court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court had no jurisdiction in this case, since the stance of the Court of Appeal on incompetence of the originating processes may be faulted by the Supreme Court, this Court ought not to ignore the issue raised in the appeal, it should be pronounced upon. See, NIPOL LTD V. BIOKU INVESTMENT & PROM LTD. (1992) 23 NSCC (pt. 1) 606 AT 618; (1992) 3 NWLR (pt. 232 727 AT 747, FRANCIS ADESEGUN KATTO V. CBN (2000) 18 WRN 108; (2001) FWLR (pt. 56) 778, (1990) 22 NSCC (PT. 2) 736; (1991) 9 NWLR (pt. 214) 126 AT 149, see the observations of Akpata, JSC in both cases and a decision of this Court in AWOJOLU v. ODEYEMI (2013) 14 WRN PAGE 28 AT PAGES 77-80 and 81-83, the view I also expressed therein, while also relying on the above decisions. In FRANCIS ADESEGUN KATTO V. CBN (Supra) His Lordship Akpata, JSC while also relying on his previous decision in Bioku’s case (Supra) made the following observations in this regard:
“Where trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both Counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted bar the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.” (Italics supplied)
I shall proceed to resolve the sole issue as identified by each of the learned counsel to the parties, whether the lower court was right in dismissing the plaintiff’s claim on the ground that it was statute barred.
The Respondents contended that the action of the Appellant as plaintiff is statute barred since the suit was filed three months and twenty four days after the occurrence of the cause of action. I would start with the definition of a cause of action that is statute bared which has been interpreted as follows:
A cause of action in which proceedings cannot be brought because the period laid down by the Limitation Law or Act has elapsed. The writ of summons and statement of claim would show when the alleged wrong occurred giving rise to the cause of action. If the time on the writ is beyond the period allowed by the Limitation Law, the action is statute barred. The Apex court in the case of ALHAJI JUBRIN BALA HASSAN V. DR. MUAZU BABANGIDA ALIYU & ORS (2010) 17 NWLR (PART 1223) PAGE 547 at 619-620, His Lordship, Adekeye, J.S.C. in this respect held 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.”
See also FRED EGBE V. HON. JUSTICE J. A. ADEFARASIN (NO. 2) 1987 1 NWLR (PT. 47) 1 AJAYI V. MIL. ADM., ONDO STATE (1997) 5 NWLR (PT. 504) 237 AT 273. A cause of action is said to be statute barred when no proceedings can be brought in respect of it because the period laid down by the Limitation Act had elapsed. The time begins to run when there is in existence, a person who can sue and another who can be sued and all the facts have happened, which are material to be proved to entitle the plaintiff to succeed, see, UBN LTD. V. OKI (1999) 8 NWLR (PT. 614) 244 at 252. The cause of action in this case was the unlawful removal from office of the Appellant as a member of the Commission for which he lost pay, from 1st June, 2003 till the period or date he would have completed his term of five years.
The Appellants writ of summons in the lower court was endorsed as follows:
(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.”
(Underlined mine for emphasis.)
While in his Amended Statement of Claim the Appellant claimed as follows:
(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 defendants of the total sum of N4, 326,522.52 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 2904 as particularized in paragraph 15 herein.”
(Underlined mine)
The Appellant’s appointment as a member of Oyo State Independent Electoral Commission in 1999, was precisely on 30th December and earned his salaries till May, 2003. In the Appellant’s writ of summons at pages 1-2 of the printed records and Amended Statement of Claim, pages 3-4 of the records, the Appellant claimed his salaries, allowances and all other entitlements from the Respondents for the unexpired period of his five (5) years term of office from 1st June, 2003 to December 2004.
The Amended Statement of Claim showed that the 1st Respondent on the 1st June, 2003 made the request to the Oyo State House of Assembly to review the composition and membership of the Oyo State Independent Electoral Commission. Therefore, from the writ of summons and the Amended Statement of Claim the cause of action arose on the 1st day of June,2003. From Page 1 of the printed records the Appellant’s writ of summons was filed in the registry of the High Court on 24th September, 2003.
The learned Appellant’s Counsel had argued that the lower court did not take into cognizance the fact that the Respondents did not communicate to the Appellant any decision to dissolve the Appellant’s Commission, and he would therefore not have known that his salary for the month of June, 2003 was not paid until the end of that month, when the cause of action would then arise, and the computation period would commence within the stipulated period of three months. The Appellant’s writ of summons, paragraph (2) was specific as to when the salaries, allowances and all other entitlements for the unexpired period of the plaintiff’s term of five years as a member of the Commission, as 1st June, 2003. In Paragraph 2 of the Appellant’s Amended Statement of Claim, in the second relief claimed Salaries, allowances and other entitlements from 1st June to December 2004. Paragraphs 7, 8 and 9 of the Appellant’s amended statement of claim, page 3 of the records also was specific as to the Appellant’s removal from office and earned salaries and allowances till May, 2003, see paragraph 8.
I hold that the cause of action arose on 1st June, 2003 undoubtedly from when the Appellant also claimed unearned salaries and allowances.
The learned Counsel to the Appellant had argued that assuming the action was brought outside the stipulated period provided by the Public Officers Protection Act, as I have held, that the suit was still competent as the Act does not apply to breach of contract cases where the res as in this case, the Respondents acted outside the colour of their constitutional duty. Reliance was placed on Section 201 of the Constitution which provides as follows:
“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.”
(Underlined mine for emphasis.)
The Constitution in the above provision made a specific provision concerning the removal of members of the Commission amongst others.
The learned Attorney General of Oyo State had argued that the action was brought outside the stipulated period by Section 2 of the Public Officers Protection Act, which stipulates a period of three months within which to bring an action if any one has a grievance over any act done in pursuance of the execution of any Act or Law or any public duty or authority by the Respondents, in the present case, the removal of the Appellant from office by the Respondents.
Section 2 of the public Officers Protection Act provides as follows:
“When any action, prosecution or other proceedings commenced against any person for a an 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.”
In the present case, did the act of removal of the Appellant fall within the provision above of the three months limit to bring an action, rendering the action statute bared? In this case the Appellant’s removal did not fall under any of the categories above provided for under Section 2(a) of the Public Officers Protection Act, therefore it would not apply in this case.
The Respondents did not comply with the provisions of Section 201 of the Constitution and cannot be protected by Section 2(a) of the Public Officers protection Act.
The learned trial Judge also acknowledged the fact that the Respondents acted outside the scope of their authority when he held thus at Page 11 of the records thus:
”I am not unaware of the provisions of Sections 197, 198 and particularly 201 of the constitution. 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.”
(Underlined mine.)
Further at page 11 still,
“It is also not in controversy that the plaintiff’s contract of appointment was for five years but that he was removed prematurely before the expiration of these five years.”
(Underlined mine.)
It was also held by the learned trial judge 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.”
Having held that the Respondents acted outside the colour of their offices, and cannot hide or take cover under the Public Officers Protection Act for protection, the effect is that the Appellant’s remedy is still open to him. In IBRAHIM v. JSC (1998) 14 NWLR (PT. 584) 1 at 32 E-F the Apex Court, Iguh JSC in this respect held thus:
“In other words, 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 of his office or outside the statutory or constitutional duty.”
Similarly in ALAO V. UNIVERISITY OF ILORIN (2008) 1 NWLR (PT. 1069) 421 AT 446 – 450 A-C 451 B-C this court considered the applicability and held that the provisions of the Act do not apply to contract cases or in an action founded on breach of contract.
Also, in the case of ALHAJI JUBRIN BALA HASSAN v. DR. MUAZU BABANGIDA ALIYU & 2 ORS (2010) 17 NWLR (pt. 1223) P. 547 at 61 the Apex Court, His Lordship, Adekeye, JSC held 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.”
Further, at P. 591, his Lordship Onoghen JSC held thus:
“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.”
I therefore agree with the learned Counsel to the Appellant that the Respondents acted outside their constitutional duty, the learned trial judge was, with respect wrong to have dismissed the action for being statute bared and not holding that the Respondents acted unconstitutionally having removed the Appellant for reasons not covered by Section 201 of the Constitution and they cannot and will not be protected by the Public Officers protection Act.
The conclusion is that the provisions of the Public Officers Protection Act do not apply in contract cases, or in an action founded on breach of contract as in the present case where the Appellant was removed from office before the expiration of his five year term as a member of the Commission, See, also the cases of CBN V. ADEDEJI (2004) 13 NWLR (PT. 890) 226; N.P.A. V. CONSTRUZIONI GENERALI FARSURA COGEFAR SPA (1974) 1 ALLNLR (PT. 2) 463); F.G.N. V. ZEBRA ENERGY LTD. (2002) 18 NWLR (PT. 798) 162; ADIGUN v. AYINDE (1993) 8 NWLR (PT. 313) 516, IBRAHIM v. JSC (SUPRA) and GYANG v. N.S.C. (2002) 15 NWLR (PT. 791) 454. In FGN v. ZEBRA ENERGY LTD. (2002) (SUPRA) at P. 197, the Supreme Court held 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.”
In the final analysis I hold that the Respondents acted outside the scope of their authority, statutory or constitutional duty. This case is therefore not caught up by the Public Officers Protection Act. The Ruling of the learned trial judge B. O. Adeniji, J (as he then was) of the Oyo State High Court, delivered in Suit No. I/756/2003 holding that the action is statute barred and dismissing same is hereby set aside.
In sum, the appeal has merit and is hereby allowed. I would grant the alternative prayers sought by both Counsel (but, for a different reason), that the matter be tried on the merits. I remit same to the Chief Judge of Oyo State High Court for trial on the merits before another judge other than B. O. Adeniji, J.
Parties to bear their respective costs.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Chidi Nwaoma Uwa JCA, and I adopt all consequential orders made therein.
ADAMU JAURO, J.C.A: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother, C.N. Uwa, JCA.
I am in complete agreement with the said judgment and adopt same as mine.
I abide by the orders contained therein.
Appearances
Seni Adio Esq. with Nkechi Okoye (Miss) For Appellant
AND
Adegboyega Salawu Esq. Principal state counsel with Kuforiji-Kehinde Esq.
Later:
M. O. Adebayo Esq., Attorney General of Oyo State with A. Salawu Esq. Principal State counsel For Respondent