EZE v. ESBS & ORS (2020)

EZE v. ESBS & ORS

(2020)LCN/14131(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/E/139/2015

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

ELIAS AMBROSE EZE APPELANT(S)

And

ENUGU STATE BROADCASTING SERVICE (ESBS) 2. THE MANAGING DIRECTOR, ENUGU STATE BROADCASTING SERVICE (ESBS) 3. HON. COMMISSIONER FOR INFORMATION, ENUGU STATE 4. THE HON. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE ENUGU STATE RESPONDENT(S)

RATIO

THE DOCTRINE OF COVERING THE FIELD

It was also submitted that the Public Officers Protection Act applies to Enugu State by the operation of the doctrine of covering the field. This doctrine applies where there are two conflicting legislations, one by the Federal Legislature and the other by a State Legislature with respect to a matter in respect of which both are competent and in which case the Federal Legislation would be applied as having covered the field and the State legislation would be invalidated. See A.G. OGUN STATE VS. A.G. FEDERATION (1982) 3 NCLR 166, A.G. ABIA STATE VS. A.G. FEDERATION (supra), OLAFISOYE VS FRN (supra) and AG LAGOS STATE VS.EKO HOTELS LTD & ANOR(2017) LPELR-43713(SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>The doctrine of covering the field cannot be applied to the present situation. It is therefore erroneous to apply the Public Officers Protection Act (supra) in striking out the action instituted by the Appellant against the Respondents who were all public officers in the Enugu State public service.
In the entire circumstances therefore, I resolve the lone issue herein in favour of the Appellant and against the Respondents. PER OYEWOLE, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court, Enugu Judicial Division, holden at Enugu, delivered on the 12th December, 2014 by IBRAHIM, J.

The Appellant in contesting his retirement from the services of the 1st Respondent took out an action at the trial Court wherein he sought the following reliefs:
i. An order setting aside the pre-mature retirement letter written by 1st Respondent dated 15/3/2011, ref. No. ESBS/NCA/PS: 41/213 to him and a declaration that same is null and void and of no effect whatsoever.
ii. A declaration that his purported retirement from the services of 1st Respondent based on the facts contained in the said letter of 15/3/2011, is PREMATURE, and therefore wrongful, unlawful and illegal hence his appointment subsists, and that he still occupying his position as Deputy Director, News and Current Affairs of the 4th Defendant.
iii. A declaration that he should occupy the post of Director, News and Current Affairs of the 1st Respondent Enugu as the most senior staff in the Department thus nullifying the letter to him:

Ref: ESBS/NUA/PS.41/207 dated October 28, 2010.
iv. A declaration that the claimant should be entitled to stay in the services of 1st Respondent until the claimant attains the mandatory 60 years of age or 35 years of service.
v. An order for his immediate re-instatement into office and payment of all the entitlement from 1st March, 2011 when the purported retirement took effect within a stipulated period.
vi. That the sum of (N5m) five million Naira only paid to him within a stipulated time as general damages for wrongful retirement of claimant from the services of the 1st Respondent.
vii. An injunction restraining the 1st Respondent, its agents, servants and privies from interfering with employment, seniority or rank, until the claimant attains the mandatory age of 60 years or 35 years of service.

The Respondents contested the action and joined issues via pleadings upon which trial started. In the course of trial, the Respondents raised an objection to the jurisdiction of the Court on the grounds that the action was statute barred.

The said objection was contested by the Appellant and in a reserved ruling delivered as aforesaid

on the 12th December, 2014, the trial Court found that the Appellant’s action was statute barred pursuant to the Public Officers Protection Act and consequently struck it out.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on 31st December, 2014 containing 3 grounds which said Notice of Appeal was amended via the Amended Notice of Appeal filed on the 8th May, 2015 containing 5 grounds.

At the hearing of the appeal, Mr. Iheanacho who held the brief of Mr. Odo the learned counsel for the Appellant adopted the Appellant’s brief settled by his principal, Mr. Odo and filed on the 16th June, 2015 but deemed properly filed and served on the 11th March, 2020 as the arguments of the Appellant in furtherance of his appeal.

For the Respondents, Mrs Umeobika, a principal legal officer in the Enugu State Ministry of Justice, adopted the Respondents’ brief filed on the 10th November, 2017 but equally deemed properly filed and served on the 11th March, 2020 as the arguments of the Respondents in contesting the appeal.

The Appellant distilled four issues for determination thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether in the circumstances of the case the lower Court was right to apply Section 2 (a) of the Public Officer Protection Act, 2004 instead of Section 30 (1) of the Enugu State Broadcasting Service Law of Enugu State 2004 as a result of which it did not breach the right of the Appellant.
2. Whether the Court below didn’t breach the right of the Appellant when it did not give the Appellant the opportunity to engage a lawyer of his choice.
3. Whether the Court below was correct to interpret the phrase “Public Officers” to include the Respondents and so didn’t breach the right of the Appellant by the effect of the interpretation.
4. Whether the Appellant’s right to fair hearing has not been breached in the circumstance of this case.

The Respondent however formulated a lone issue in the following terms:
Whether the learned trial Judge was right in striking out the case since it found that it had no jurisdiction to entertain same having been caught up by the Public Officers Protection Act Cap. P.41, LFN 2004.

It seems evident, that the lone issue of the Respondent captures the entire grievances of

the Appellant against the decision of the trial Court in issue, as contained in the grounds of appeal and I shall adopt it accordingly. It was submitted for the Appellant that Section 2 (a) of the Public Officers Protection Act (supra) was wrongly applied by the trial Court to breach the Appellant’s right to fair hearing in striking out his case.

Learned counsel further submitted that since the Appellant was employed by the 1st Respondent, the applicable law was the enabling statute of the said 1st Respondent wherein Section 30 (1) thereof stipulate a time limit of twelve months for institution of any action against the said 1st Respondent. He also drew attention to Section 11 (1) of the State Proceedings Law of Enugu State, 2004 which similarly provided for a twelve month time limit. He submitted that these laws ought to have been applied by the trial Court instead of the Public Officers Protection Act (supra) which is a federal legislation enacted by the National Assembly which had no competence to legislate for Enugu State on the issue and which legislation was applicable exclusively to officials of the Federal Government.

Learned counsel submitted further that the refusal of the trial Court to grant adjournment to the Appellant to engage a counsel of his choice breached his right to fair hearing and referred to OGBONNA VS UKAEGBU (2005) 17 NWLR (PT 954) 432.

It was contended for the Appellant that the contemplation of public officers under the Public Officers Protection Act (supra) does not extend to offices but only covers occupiers of such offices and as such the Respondents were not public officers within the context of the said Act. Learned counsel referred to TAFIDA VS ABUBAKAR (1992) 3 NWLR (PT 230) 511 at 523 and ASOGWA VS CHUKWU (2003) 4 NWLR (PT 811) 540.

Learned counsel concluded by submitting that in striking out the Appellant’s case without evaluating the adduced evidence, the trial Court breached the Appellant’s rights to fair hearing. He therefore urged this Court to set aside the decision of the trial Court.

Contrariwise, Mrs. Umeobika submitted that Section 2 (a) of the Public Officers Protection Act applied to the Appellant’s action as it was commenced more than three months after the accrual of the cause of action while the Respondents were

public officers who acted in the course of their public duties and that public officers within the contemplation of the said Act included artificial persons. He referred to IBRAHIM VS JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT 584) 1 at 38, NIGERIAN BROADCASTING CORPORATION VS BANKOLE (1972) NSCC 220, SULGRAVE HOLDINGS INC. VS FGN (2012) 17 NWLR (PT 1329) 309 at 340 and F.R.I.N. VS GOLD (2007) 1 NWLR (PT 47) 1.

The learned counsel further submitted that the action of the Appellant did not fall within any of the stated exceptions to the Public Officers Protections Act as claims against officers of the State Government did not constitute such exceptions. He referred to NPA VS CONTRUZIONI GENERALIS F.C.S (1974) 1 ALL NLR (PT 2) 463 and FGN VS ZEBRA ENERGY LTD (2002) 18 NWLR (PT 798) 162.

He further submitted that the said Act applies to public officers generally, whether State or Federal and that the subject matter being labour was within the legislative competence of the National Assembly which has covered the field with the said Act and in respect of which a State legislature would not vary. He referred to A.G. ABIA VS A.G. FEDERATION

(2002) 6 NWLR (PT 763) 264 at 435 and OLAFISOYE VS FRN (2004) 4 NWR (PT 864) 540 at 656-658.

He distinguished the case of TAFIDA VS ABUBAKAR (supra) relied on by the Appellant and submitted that the Appellant was not denied fair hearing as he failed to bring in any other counsel apart from the counsel who represented him throughout the action despite his expression of intention to change the said counsel.
He urged the Court to dismiss the appeal.

In striking out the action of the Appellant, the learned trial Judge stated on page 369 of the record of appeal thus:
In the circumstance, I do not accept the argument of the Learned Claimant’s Counsel that the relevant legislation to apply are Sections 30(1) & (2) of the Enugu State Broadcasting Service Law, Cap 42 Laws of Enugu State and Section 11 (1) of the State Proceeding Law, Cap 146 Laws of Enugu State. Rather it is the provisions of Section 2 (a) of the Public Officers Protection Act, Cap P41, CFN, 2004 that apply to the case.

That public officers include inanimate or artificial bodies is no longer in contention as the point was laid to rest by Supreme Court in a long number of

cases including IBRAHIM VS JUDICIAL SERVICE COMMITTEE, KADUNA STATE (supra) cited by the learned counsel for the Respondents. The Respondents are therefore public officers.
The main question to be answered in this appeal, in my considered view is whether the Public Officers Protection Act, applies to protect public officers of a State, specifically, Enugu State.
There is no doubt that pursuant to Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereinafter referred to as ‘the Constitution’ law making is the exclusive preserve of the Legislature with the National Assembly having exclusive preserve with regards to matters in the Exclusive Legislative List. Item 53 in the said Exclusive Legislative List is “Public service of the Federation including the settlement of disputes between the Federation and officers of such service.”
The legislative competence of the National Assembly therefore does not extend to the public service of States including Enugu State and the legislature of each of the States of the Federation has the responsibility to enact appropriate legislations to regulate its

public service. This legal position was made abundantly clear by the Supreme Court, per EKO, JSC thus:
The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the “public service of the Federation”. It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a matter within the residual list, that is matter neither in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution. The public service of Ekiti State, being a residual matter, only the Ekiti State House of Assembly, by dint of Section 4(6) & (7) of the Constitution, 1999, as amended,

to the exclusion of the National Assembly or any other State House of Assembly, can constitutionally legislate on it. This basic Constitutional Law eluded the Respondents and the two Courts below. The resort to the Federal statute, the Public officers Protection Act, to scrounge a statutory defence for officers in Ekiti State public service is no doubt ultra vires. See CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565(SC) at 5-6 per EKO, JSC.
It was also submitted that the Public Officers Protection Act applies to Enugu State by the operation of the doctrine of covering the field. This doctrine applies where there are two conflicting legislations, one by the Federal Legislature and the other by a State Legislature with respect to a matter in respect of which both are competent and in which case the Federal Legislation would be applied as having covered the field and the State legislation would be invalidated. See A.G. OGUN STATE VS. A.G. FEDERATION (1982) 3 NCLR 166, A.G. ABIA STATE VS. A.G. FEDERATION (supra), OLAFISOYE VS FRN (supra) and AG LAGOS STATE VS.EKO HOTELS LTD & ANOR(2017) LPELR-43713(SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The doctrine of covering the field cannot be applied to the present situation. It is therefore erroneous to apply the Public Officers Protection Act (supra) in striking out the action instituted by the Appellant against the Respondents who were all public officers in the Enugu State public service.
In the entire circumstances therefore, I resolve the lone issue herein in favour of the Appellant and against the Respondents.

I find merit in this appeal and I accordingly allow it. Consequently, the decision of the trial Court delivered on the 12th December, 2014 in Suit No. NICN/EN/38/2012 striking out the said suit is hereby set aside.

The said Suit No. NICN/EN/38/2012 is hereby restored to the cause list and remitted to be heard on the merit de novo by another Judge of the National Industrial Court of Nigeria other than A. IBRAHIM,J.
Cost of N100,000.00 to the Appellant against the Respondent.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that this appeal has merit. I too allow the appeal. I

abide by the consequential orders made therein.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the privilege of reading before now, the draft of the lead judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree entirely with the reasoning and conclusion reached.

I also find merit in this appeal and accordingly allow it. It is erroneous for the trial judge to apply the Public Officers Protection Act, (which exclusively is for the Public Officers of the Federation …and officers of such service, and does not extend to the public services of the States including Enugu State) in striking out the action instituted by the Appellant against the Respondents who were all public officers in the Enugu State Public Service.

The decision of the National Industrial Court, Enugu Judicial Division, Holden at Enugu, delivered on the 12th December, 2014 per Ibrahim J., in Suit No: NICN/EN/38/2012 striking out the said suit is hereby set aside.
I abide by the consequential order in the lead judgment.

Appearances:

Mr. H. Iheanacho holding brief of O. Odo For Appellant(s)

Mrs. I. Umeobika (Principal Legal Officer, Ministry of Justice, Enugu State) For Respondent(s)