EDET v. NIGERIAN ARMY & ORS (2022)

EDET v. NIGERIAN ARMY & ORS

(2022)LCN/16408(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, January 28, 2022

CA/K/243/2016

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

EX – LCPL MONDAY EDET APPELANT(S)

And

1. NIGERIAN ARMY 2. THE CHIEF OF ARMY STAFF 3. MECHANIZED DIVISION, KADUNA RESPONDENT(S)

RATIO:

THE RIGHT TO ENFORCE A CAUSE OF ACTION WHERE AN ACTION IS STATUTE BARRED

The law is that where the law provides for bringing of action within a specified period after the cause of action has accrued to an intending claimant or Plaintiff, proceedings shall not be brought after the prescribed periodhas elapsed as any action brought outside the period has become statute barred and cannot give rise to a cause of action. Where an action is statute barred a Plaintiff who had a cause of action loses the right to enforce or ventilate that cause of action by Judicial process because the period stipulated by the limitation law for commencement of such action has expired. The action is no longer maintainable. See Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; CPC v. INEC & 41 Ors. (2011) 12 SC (Pt.v) 80 Texaco Panama Incorp. V. Shell Petroleum Dev. Corp. of Nig. Ltd (2002) 3 SCM 110; Bakare v. NRC (2007) 7 SCNJ 131.

When a defence that an action is statute barred is raised and sustained, the proper order of Court is a dismissal of the suit. See Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 649. ABUBAKAR MAHMUD TALBA, J.C.A.

THE DETERMINATION OF AN ACTION THAT IS STATUTE BARRED

It is settled law that for the purpose of determining whether an action is statute barred the period of limitation is determined by perusing the writ of summons and the statement of claim only in order to ascertain the date when the alleged wrong was committed which gave rise to the Plaintiff’s cause of action and by comparing same with the date the originating process was filed so as to know whether the action was commenced outside the period of limitation. See Woherem v. Emereuwa (2004) 6 – 7 SC 161(2004) 13 NWLR (pt. 890) 398; Popoola Elabanjo & Anor v. Chief (Mrs) Ganiat Dawodu (2006) 6 SCNJ 204;Alhaji Jibrin Babe Hassan v. Dr. Muazu Babangida Aliyu & 2 Ors (2010) 7 – 12 SC 21. ABUBAKAR MAHMUD TALBA, J.C.A.

THE COURT IS ENTITLED TO EXAMINE THE FACTS AND CIRCUMSTANCES UNDER WHICH A CAUSE OF ACTION

It is also trite law that where the Public Officers Protection law has been raised in a matter the Court is entitled to examine the facts and circumstances under which the cause of action or the act complained of was performed in order for it to determine the applicability of that law or whether the protection has been vitiated. See Egbe v. Alhaji (1990) 3 SC (Pt.1) 63. ABUBAKAR MAHMUD TALBA, J.C.A.

A COURT SHOULD EXERCISE SOME RESTRAINT IN DISMISSING AN ACTION

A Court should exercise some restraint in dismissing an action on the ground only that the action commenced against a Public Officer was filed outside three months from the date of accrual of the cause of action, unless the Court is satisfied that the act executed by the Public Officer did not fall within the exceptions that would deprive the Public Officer of the Protection of Section 2(a) of the Public Officers Protection Act that he would otherwise have been entitled to. See Hassan v. Aliyu(supra);Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458; Muhammad v. A.B.U Zaria (2014) 7 NWLR (Pt. 1407) 500; Mulinia v. Usman (2014) 16 NWLR (Pt. 1432) 160 and Energy Marine and Industrial Ltd v. Minister of the Federal Capital Territory (2010) LPELR-1977. ABUBAKAR MAHMUD TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the National Industrial Court sitting at Kano, delivered on the 12th of November, 2014 in suit no: NICN/KD/3/2014.

The Appellant while serving in the Nigerian Army with the rank of Lance Corporal, he was alleged to have been involved in a Conduct prejudicial to service discipline. He was alleged to have extorted money from motorist at a road block where he was posted alongside other soldiers. Lt. Co. M. F. Babayo the Officer in charge of the Army Surveillance Unit, set up by the General Officer commanding one Division Nigerian Army, to conduct Surveillance and Monitor soldiers who were stationed at the various road blocks on the Highway within the division, arrested, detained and investigated the Appellant. Following series of events the Appellant was found not to have followed the proper channel of complaint and seeking of redress in the Nigerian Army and as a result, he was summarily tried on the 8th of March, 2013. He was found guilty as charged and he was dismissed by Brigadier General O. Laleye. On the 27th of February, 2014 the Appellant filed a suit at the lower Court challenging the summary trial and his dismissal that was conducted on the 8th of March, 2013.

The Respondent raised a Preliminary Objection to the Jurisdiction of the lower Court on the ground that the suit was statute barred. The learned trial Judge upheld the preliminary objection and dismissed the suit, having found that the suit was statute barred. Aggrieved by the decision of the lower Court, the Appellant appealed to this Court vide the Original Notice of appeal filed on the 17th of December, 2014. Pursuant to the Appellant’s motion on notice dated the 7th of March, 2016, the Appellant was granted an extension of time within which to apply for leave to appeal against the decision of the National Industrial Court. The Appellant’s application was granted on the 10th of May, 2016. The Appellant filed a Notice of Appeal on the 17th of May, 2016. It contains seven (7) grounds of appeal.

At the hearing of the appeal on the 2nd of November, 2021, the Respondents were not in Court and they were not represented. The Court registrar informed the Court that the Respondents’ counsel was served with a hearing Notice Viaphone call on the 29th October, 2021. S. I. Unoake Esq., of counsel adopted the amended Appellant’s brief of argument filed on 2nd November, 2018 and it was deemed properly filed and served on the 22nd of November, 2018. The Appellant’s amended reply brief was filed on 7th of October, 2019 and it was deemed on the 22nd October, 2020. The Respondents’ Joint brief of argument filed on the 22nd of May, 2018 and deemed on the 22nd October, 2018, was deemed as having been argued.

From the seven (7) grounds of appeal, the Appellant distilled two issues for the determination of this appeal thus:
1. Whether the learned trial Judge was not wrong in dismissing the Appellant’s suit on the grounds that it is statute barred by reason of the Public Officers Protection Act, whereas the Appellant’s employment is regulated by the Armed Forces Act. (Grounds 1, 3 and 4).
2. Assuming that the Public Officers Protection Act can be applied to the Appellant’s relationship with the Respondents, which is not conceded. Whether from the facts and circumstances of this matter, the Appellants suit does not come within the exceptions to the application of the Public Officers Protection Act (Grounds 2, 5, 6 and 7).

The Respondents raised a sole issue for determination thus:
“Whether the learned trial Judge was right in upholding the Respondents’ preliminary objection on the ground that the suit was statute barred.”

I adopt the sole issue raised by the Respondent as the issue for the determination of this appeal. However, the Respondent raised a preliminary point of law with respect to the Appellant’s brief of argument. The learned counsel urged the Court to discountenance the said brief of argument for the reason that the two issues raised therein does not flow from the grounds of appeal in the notice of appeal dated 5th December, 2014 and filed on 17th December, 2014. And that the argument on the appeal is not based on the issue raised and this makes the entire argument incompetent. In its amended reply brief, the Appellant submitted that the notice of appeal being relied upon by the Respondent has been superseded by a subsequent notice of appeal dated 17th May, 2016 and filed on the same date. And therefore the amended Appellant’s brief has been filed to that effect. The submission of the Respondents’ counsel has been overtaken by events, hence the two (2) issues raised by the Appellant are distilled from the seven (7) grounds of appeal, contained in the notice of appeal filed on the 17th of May, 2016.

In view of the above, the submissions of the Respondent’s counsel on the preliminary point of law becomes otiose, and same is discountenanced.

The crux of this appeal is whether the learned trial Judge was right in upholding the Respondents preliminary objection on the ground that the suit was statute barred. The submissions of counsel are contained in their respective briefs, for and against the issue in contention. Section 2(a) of the Public Officer Protection Act provides:
“where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any act, law, duty or authority, such action, prosecution or proceedings shall not lie or be instituted unless it is commenced within 3months after the act, neglect or default complained of or in the case of continuance of damage or injury within three months next after the ceasing thereof…”
The provisions of Section 2(a) of the Public Officers Protection Act is clear and unambiguous and should be given its ordinary and natural meaning. Where a statute prescribes a time limit within which an action should be instituted, such law is referred to as statute of limitation. The raison d’etre for statute of limitation is to ginger up an aggrieved person to be vigilant. Equity aids the vigilant and not the indolent. The law discourage frivolous actions and to preserve the evidence by which a Defendant will defend the action. See A.P.C v. Lere (2020)1 NWLR (Pt. 1705) 254; Awolola v. Gov. Ekiti State (2019) 6 NWLR (Pt.1668) 247 and Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd (2017) 7 NWLR (Pt. 1563) 42; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245.
The law is that where the law provides for bringing of action within a specified period after the cause of action has accrued to an intending claimant or Plaintiff, proceedings shall not be brought after the prescribed period has elapsed as any action brought outside the period has become statute barred and cannot give rise to a cause of action. Where an action is statute barred a Plaintiff who had a cause of action loses the right to enforce or ventilate that cause of action by Judicial process because the period stipulated by the limitation law for commencement of such action has expired. The action is no longer maintainable. See Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; CPC v. INEC & 41 Ors. (2011) 12 SC (Pt.v) 80 Texaco Panama Incorp. V. Shell Petroleum Dev. Corp. of Nig. Ltd (2002) 3 SCM 110; Bakare v. NRC (2007) 7 SCNJ 131.

When a defence that an action is statute barred is raised and sustained, the proper order of Court is a dismissal of the suit. See Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 649.

There are two conditions that must exist before a person can avail himself of the Protection by the Public Officer’s Protection Act. The first is that the person must be a Public Officer and secondly that the act done by the person in respect of which the action was instituted was done in pursuance or execution of a law or public duty or authority. See Hassan v. Aliyu & Ors (2010) (supra).

The Public Officers Protection Act is intended as much as within the limits of the law to protect a public officer from distraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice. See A. G. Rivers State v. A.G. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123. The protection enjoyed by public officer under the Public Officers Protection Act is not automatic. In other words, there are exceptions to the application of the law. The exceptions are:
1. Any Public Officer who abused his office.
2. Any Public Officer who acted in bad faith.
3. Any Public Officer who acted maliciously.
4. Case of recovery of land.
5. Cases founded on contract or breach of contract.
6. Persons who acted outside the authority or Constitutional duty or without legal justification or in breach of the Constitutional provisions.

In this instant case, it is an undisputed fact that the Appellants enlistment into the Nigerian Army Created an employment contract governed by the Armed Forces Act, 2004. The Respondent’s counsel attempted to make a distinction between the contract of employment and a breach of a simple contract. The Respondent counsel submitted that the contract between the Appellant and the 1st Respondent is not one in contemplation in deciding the cases of C.B.N v. Adedeji (2005) ALL FWLR (Pt. 244) 912; F.G.N v. Zebra Energy Ltd (2002) FWLR (Pt. 92) 1749; Bank of the North Ltd v. Gena and N.B.N Ltd v. Arison Trading & Engr. Co. Ltd, which were relied upon by the Appellant at the trial Court and in this appeal. The Respondent counsel submitted that these cases were decided based on breach of simple contract between two contracting parties unlike the present one. It is settled law that a contractual right is not ordinarily affected by the affluxion of time. However in case of simple contract, an action shall not be brought in respect of any matter which arose more than six years before the commencement of the action. But in F.G.N v. Zebra Energy Ltd (supra), the Court held that the Public Officers Protection Act is excluded in breach of contract situations which relates to one with statutory flavour. And in the case of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 599) at 683 Para D-H, the Supreme Court held that the Appellant therein held their appointments under the University of Lagos Act No. 3 of 1967 hence both the University of Lagos and the University Council can only act within and under the powers conferred on them by that law with regards to the Appellants employment.
I have earlier stated that the Appellant’s enlistment into the Nigerian Army created an employment contract which is governed by the Armed Forces Act, 2004. The Act governs the terms and conditions of service of the Appellant including discipline and dismissal. In the case of N.R.M.A & F Commission & 2 Ors v. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 247 at 269-270 Para H-A; 270 F, the Supreme Court stated that the Public Officers Protection Act does not act as a bar to claims involving contract of service.

The Public Officers Protection Act does not avail the Respondents in the circumstances of this case. I therefore resolve the sole issue in favour of the Appellant. The judgment of the National Industrial Court sitting at Kano delivered on the 12th of November, 2014 in Suit No: NICN/3/2014 is hereby set aside. The case is remitted back to the National Industrial Court Kaduna Division for trial on merit.
Appeal is allowed.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment of my learned brother, ABUBAKAR MAHMUD TALBA, JCA just delivered.

The non-applicability of the Public Officers (Protection) Act Cap. P41, Laws of the Federation of Nigeria (LFN) 2004 tocases of breach of contract (including, notably, employment cases) has since been judicially acknowledged. The dictum of De Commammand, SPJ in SALAKO v L.E.D.B. 20 NLR 169 to the effect that “Section 2 of the Public Officers Protection Ordinance does not apply to cases of recovery of land, breaches of contract, claims for work and labour done, etc.” has been quoted with approval and applied in several binding decisions of the Supreme Court, including, notably, NPA v CONSTRUZIONI(1974) 1 All NLR (Reprint) 945 at 956, which was followed in the recent case of NRMAFC v JOHNSON[2019] 2 NWLR (PT. 1656) 247 at 270 – 277 – per Ariwoola JSC where the non-applicability of the 3 – month time bar in Section 2 of the Public Officers (Protection) Act to contracts of service was re-echoed. Yet, the said Act is still somehow being invoked to adjudge cases founded on contracts of employment as statute barred. This does not speak well of our jurisprudence.
The lower Court was in error to have declined jurisdiction to entertain and determine the Appellant’s suit challenging his summary trial and dismissal from the Nigerian Army on the basis that the suit was statute barredunder and by virtue of Section 2 of the Public Officers Protection Act.

I therefore concur with the leading judgment in allowing the appeal and setting aside the ruling delivered on 12th November 2014 in Suit No. NICN/3/2014. I equally abide by the consequential order remitting the case back to the National Industrial Court of Nigeria for trial on the merit.

Appearances:

S. I. Uwoakhe, Esq. For Appellant(s)

No Appearance For Respondent(s)