GOVT OF KOGI STATE & ORS v. JOHN
(2022)LCN/16754(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, October 13, 2022
CA/ABJ/CV/456/2020
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. GOVERNMENT OF KOGI STATE 2. KOGI STATE CIVIL SERVICE COMMISSION 3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE APPELANT(S)
And
OSHADERE SUNDAY JOHN RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CAN RAISE A GROUND OF APPEAL WHEN IT WAS NOT PART OF THE PROCEEDINGS IN THE LOWER COURT
The law ordinarily will not allow any party to raise a ground of appeal when such was not part of the proceedings in the lower Court except when leave has been filed. This general principle recognize an exception when it comes to the issue of jurisdiction. The law is that the issue of jurisdiction can be raised at any time and anyhow even in the appellate Court for the first time without seeking leave. The apex Court had held this position in a cloud of cases. I will just mention one. In Network Securities Ltd vs Dahiru & Ors (2022) LPELR- 57835 (SC), the apex Court held:
“As the Appellant submitted in its Brief, the Issue of whether the trial Court had jurisdiction to entertain the suit that led to this appeal is being raised for the first time in this Court. But the Appellant is right that being a threshold issue, jurisdiction can be raised for the first time in this Court, and it can be raised suo motu by this Court – see Galadima V. Tambai (2000) 6 SC (Pt. 1) 133, Jeric Ltd. V. Union Bank (2000) 6 SC (Pt. 1) 206, MPPP V. INEC (No. 2) (2015) 18 NWLR (Pt. 1491) 251, cited by Appellant. PER TOBI, J.C.A.
THE POSITION OF LAW ON THE INTENTION OF THE LEGISLATURE IN THE PUBLIC OFFICERS (PROTECTION) LAW
The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment. Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt.739) 458. The defence of the Public Officers Protection Law can avail public officers who act in execution of their duty without malice. Thus, motive on the part of the public officer is relevant but the mala fide of the public officer must be made an issue. Okeke vs. Baba (2000) 3 NWLR (Pt. 798) 644 at 652; Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379; Olaosebikan vs. Williams (1996) 5 NWLR (Pt. 449) 437. In Offoboche vs. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 739) 458, the Supreme Court held:- The Public Officers (protection) law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. Thus, the law will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case, he is not acting within the terms of the statutory or other legal authority. PER TOBI, J.C.A.
THE POSITION OF LAW ON THE PUBLIC OFFICERS PROTECTION ACT
I will refer to one case in this regard, this is the case of SULGRAVE HOLDINGS INC & ORS VS. FGN & ORS (2012) 17 NWLR (PT 1327) 309, where the Supreme Court held thus:
“The Public Officers Protection Act is a Statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within THREE Months of the act, neglect, or default complained or in the case of continuing damage or injury within THREE MONTHS next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaintiff. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred, and cannot be maintained. See FALAE V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC P.1. OBIEFUNA V. OKOYE (1964) 1 SCNLR 144; EGBE V. ADEFARASIN (NO.1) (1985) 1 NWLR (Pt.3) 549.”
The exception to the provision of Section 2 (a) POPA as clearly stated relates to recovery of land, breach of contract and when the public officer abuses his powers or acted arbitrarily, that is to say outside the law. I must also add that in a case involving violation of the fundamental right of a person, Section 2 (a) will not avail the public officer. PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Respondent, Claimant in the lower Court commenced an action against the Appellants challenging his disengagement from the service of the Kogi State Government. He commenced the action by way of originating summons but the lower Court had to order parties to file pleadings since by the facts disclosed in the affidavit in support and counter affidavit, there are contentious issues of facts which could not be resolved by affidavit evidence. Pleadings were exchanged and the case went to trial. The reliefs claimed by the Claimant in the lower Court as found at pages 2 and 3 of the record of appeal is as follows:
1. A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1st Defendant on 27th April, 2017 from the Civil Service of Kogi State upon unproven allegations made against the Claimant in the Report of the Kogi State Staff Screening/ Verification Appeal Committee is unlawful, illegal, void and of no consequence whatsoever.
2. A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1st Defendant upon the Report of the Kogi State Staff Screening/Verification Appeal Committee without affording the Claimant the opportunity of being heard in response to the allegations is a violation of the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria, as amended.
3. AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payments of all arrears of his salaries and benefits.
The Claimant’s case in the lower Court was that he was a staff of the Kogi State Government in the Ministry of Health, Kogi State Board of Inland Revenue, Kogi State Teaching Hospital and Kogi State Primary Education Board. There were several allegations of financial misappropriation against him which made him to face investigation and interrogation by security agencies and panels set up by the Appellants including the Kogi State Staff Screening/Verification Committee, Kogi State Staff Screening/Verification Review Committee and the Appeal Committee. In the investigation and interrogation at The State Investigation Bureau (SIB) and the Directorate of the State Security Services (DSS), he was cleared of the allegation of ghost workers in the payroll of Kogi State Government. He appeared before the Kogi State Staff Screening/Verification Committee where he was cleared and his salary was paid until July 2016. He again appeared at the Kogi State Staff Screening/Verification Review Committee where he was made to answer allegation for payrolling one Solomon Olabode who had retired from service. In the report released by the Review Committee, he was not cleared on the grounds of huge and unexplained cash flow in his account. An Appeal committee was set up to consider his case among others who were not cleared by the Review Committee. The Appeal Committee cleared on the allegation of huge and unexplained cash flow in his account. The finding and the report of the Appeal Committee stated that he was involved in fraudulent activities, employment racketeering, enriching self at the detriment of the State and abuse of office. Based on this report he was not cleared as a bonafide staff of Kogi State. His case is that he was not giving the opportunity to defend himself before the Appeal Committee and this violated his right to fair hearing. The 1st Appellant upon receiving the report on 27/4/2017 pronounced that those who were not cleared by the Appeal Committee should consider themselves disengaged from Kogi State Civil service with the liberty to go to Court. Since his name was among those not cleared and on the strength of the pronouncement by the 1st Appellant on 27/4/2017, he instituted the action in the lower Court on 26/7/2017.
The Appellants on disengaging the Respondent while admitting that due to the financial situation in the state, the Government has been unable to pay salaries to some civil servants in Kogi State which include the Respondent. The Appellants emphatically stated in the pleadings and the evidence in Court through DW1 that the Respondent is still a staff of the Kogi State Government and that investigation is still on, based on the findings of the Appeal Committee against him. The lower Court listened to the case of both parties, examined the documents tendered before it, considered the submission of counsel, evaluated the evidence, made its findings and took a decision on the matter in its judgment found at pages 302-321. of the record. The lower Court per Z.M. Bashir J. in the judgment dismissed reliefs 1 and 2 and part of relief 3 claimed by the Respondent. The lower Court however went on to hold that since the Appellants did not deny owing the Respondent salaries and allowance, the Respondent is entitled to be paid his salaries and allowances owed him. This means the lower Court granted part of the claim in relief 3 of the claim of the Respondent. The order of the Court is found at page 327 of the record as follows:
“I hold on the authority that the Claimant in this case is entitled to an order for the payment of his salaries and allowances from the date of his salary to date.
Issue 3 is accordingly resolved in favour of the Claimant to the effect that the employment of the Claimant is still subsisting with the Civil Service of Kogi State and is entitled to the payment of all arrears of his salaries and benefits.
The Defendants are ordered to calculate and pay to the claimant, salaries and allowance due to him.
The sum due to him must be paid within 30 days from the date of this judgment and if not paid within the period, the sum shall attract 10% interest per annum until paid.
Judgment is entered accordingly.”
The Appellants unhappy with the judgment filed a Notice of Appeal containing 3 grounds of appeal. The Notice filed on 10/6/2020 is found at pages 328- 332 of the record of appeal. The Appellants’ Counsel Abdulwahab Muhammad, Esq., who settled the Appellants’ brief on 2/7/2020 formulated two issues for determination from the three grounds of appeal. These issues are:
1. Whether the Court below had jurisdiction to entertain the Claimant’s suit in view of Section 2 (a) of the Public Officers Protection Act, Cap P41, LFN 2004.
2. Whether the Court below properly evaluated the evidence adduced before it in accordance with law before entering judgment for the Claimant, now Respondent.
The Respondent’s brief of 23/9/2020 settled by J. O. Ajewole, Esq., adopted the issues formulated by the Appellants. I will take a summary of the briefs starting with the Appellants’ brief.
Learned counsel for the Appellants, Abdulwahab Muhammed, Esq., in addressing issue 1 submitted that jurisdiction is the life wire of litigation and therefore it can be raised at any time referring to Saraki vs FRN (2016) LPELR-40013 (SC); Dawlang vs C.O.P. Enugu State & Anor (2017) LPELR-43449 (CA); Military Administrator Ekiti State vs Aladeyelu & Ors (2008) 1 FWLR (pt 403) 7845; Okorocha vs UBA Bank & Ors (2018) LPELR-45122 (SC). It is the submission of counsel that Section 2(a) of the Public Officer Protection Act (POPA) is applicable to this case and since the action was not commenced within 3 months, the action is statute-barred as the cause of action accrued when the Governor received and accepted the report of the Kogi State Staff Screening/verification Appeal committee on 27/4/2017. The action was filed on 26/7/2017 which is a period of 4 months from when the cause of action accrued. In this regard relying on Asaboro & Anor vs Pan Oceanic Oil Corporation (Nig) Ltd & Anor (2017) LPELR-41558 (SC); P.N. Udoh Trading Co Ltd vs Abere & Anor (2001) 11 NWLR (pt 723) 114, learned counsel submitted that the action is statute-barred. Counsel urged Court to resolve this issue in favour of the Appellants.
On issue 2, it is the firm submission of counsel that the lower Court was wrong to have ordered that the Appellants should calculate and pay the salaries and the allowance of the Respondent after it has specifically held that reliefs 1 and 2 was not proved by the Respondent. This submission is based on the premise that reliefs 1 and 2 are the principal reliefs while relief 3 is an ancillary relief. Counsel firmly submitted that having refused reliefs 1 and 2, it was out of order to grant relief 3. For this submission counsel relied on Nsugbe vs Okobi & Anor (2014) LPELR-24481 (CA); S. O. Odulaja Black and White Hotel Ltd vs Wema Bank Ltd & Ors (2014) LPELR-23822. It is the further submission of counsel that if the lower Court had acted on the unchallenged evidence of the financial situation of the State, the lower Court would not have arrived at the decision it did. The decision of the lower Court shows it did not properly evaluate the evidence before it, counsel submitted relying on Chukwu vs State (2012) LPELR-9829 (SC); SSS & Anor vs El- Rufia (2018) LPELR-45080; Odi & Ors vs Iyala & Ors (2004) LPELR-2213 (SC); Mkpinang & Ors vs Ndem & Ors (2012) LPELR-15536 (SC). On the whole, learned counsel urged this Court to allow the appeal.
J. O. Ajewole, Esq., Counsel to the Respondent submitted on issue 1 relying on a line of cases including NPA vs Construzioni Fasura Cogefar SPA & Anor (1974) ALL NLR 945; Mbonu vs Nigerian Mining Corporation (2006) 13 NWLR (pt 998) 659; Obi-Akejule vs Delta State Government (2009) 17 NWLR (pt 1170) 292 that Section 2 of POPA does not apply to contracts of employment and fundamental right proceedings. Learned Counsel submitted further that the issue of the application of Section 2 of POPA is a new issue before this Court as it was not raised in the lower Court and therefore this Court should not consider same. Learned counsel referred to Dakur vs Dapal (1998) 10 NWLR (pt 571) 573; Koya vs UBA Ltd (1997) 1 NWLR (pt 481) 251. He urged the Court to resolve this issue in favour of the Respondent.
On issue 2, learned Counsel submitted that the lower Court properly evaluated the evidence before it hence, it came to the conclusion it did. There was no way the Court could arrive at the decision without evaluating same. The admission of the Appellants through the evidence DW1 that they are owing the Respondent was enough ground for the lower Court to take the decision it did. It is the submission of counsel that the appeal should be dismissed as it lacks merit
The Appellants filed a reply brief which borders more on Section 2 (a) of POPA. There is nothing new in the brief on the said section apart from adding cases on the point that the POPA applies to this case.
The Appellants is challenging the judgment of the lower Court basically on three grounds which are namely, firstly that the lower Court had no jurisdiction to entertain the action since the provision of Section 2 (a) of POPA applies to the case. This means that since the Appellants are public officers, the action should have commenced within 3 months from when the cause of action accrued. Secondly, the lower Court should not have made any order for the payment of the salaries and benefits of the Respondent having held that the claim to declare the disengagement of the Respondent was dismissed basically on the premise that there is no evidence that the Respondent’s appointment was terminated or he has been disengaged by the Appellants. Thirdly, the lower Court did not properly evaluate the evidence before it in arriving at the decision it did.
Both counsels in this appeal in the respective briefs of the parties formulated two issues for determination. Both issues are similar, in fact, the Respondent adopted the Appellants’ issue. I will therefore adopt the issues as formulated by the Appellants in their brief. For ease of reference, I will reproduce the issues for determination in this appeal:
1. Whether the Court below had jurisdiction to entertain the Claimant’s suit in view of Section 2 (a) of the Public Officers Protection Act, Cap, P41, LFN 2004.
2. Whether the Court below properly evaluated the evidence adduced before it in accordance with law before entering judgment for the Claimant, now Respondent.
RESOLUTION OF ISSUES
I will start with issue 1 which deals with the issue of jurisdiction. The Appellants did not raise this issue at the lower Court. That is to say, there is nothing in the proceeding before the lower Court where the Appellants challenged the jurisdiction of the lower Court on the premise that the action is statute-barred since it offends Section 2 (a) POPA. The Appellants were therefore raising this issue for the first time on appeal. They did so without seeking leave from either the lower Court or this Court. The law ordinarily will not allow any party to raise a ground of appeal when such was not part of the proceedings in the lower Court except when leave has been filed. This general principle recognize an exception when it comes to the issue of jurisdiction. The law is that the issue of jurisdiction can be raised at any time and anyhow even in the appellate Court for the first time without seeking leave. The apex Court had held this position in a cloud of cases. I will just mention one. In Network Securities Ltd vs Dahiru & Ors (2022) LPELR- 57835 (SC), the apex Court held:
“As the Appellant submitted in its Brief, the Issue of whether the trial Court had jurisdiction to entertain the suit that led to this appeal is being raised for the first time in this Court. But the Appellant is right that being a threshold issue, jurisdiction can be raised for the first time in this Court, and it can be raised suo motu by this Court – see Galadima V. Tambai (2000) 6 SC (Pt. 1) 133, Jeric Ltd. V. Union Bank (2000) 6 SC (Pt. 1) 206, MPPP V. INEC (No. 2) (2015) 18 NWLR (Pt. 1491) 251, cited by Appellant. Even so, the Appellant addressed this Issue from two standpoints – that Federal High Court has no jurisdiction to try the causes of action; and the judgments and proceedings are nullities because they were based on improperly signed Court processes.
The issue of whether the proceedings and the lower Courts’ judgments are nullities must take centre stage in this appeal because this is not an issue that is treated lightly by this Court. The issue goes to the root of jurisdiction, which is aptly described as the pillar upon which the entire case stands, and once it is shown that a Court lacks jurisdiction, the case crumbles into pieces. ” Per AUGIE, J.S.C.
Permit me to cite one more case, that is the case of Sakati vs. Bako & Anor (2015) 6-7 S.C (pt 1) 37 where the Supreme Court jointly held on the issue as follows:
“The rules require a party raising an issue in appeal for the first time to do so by leave of Court. But the issue of jurisdiction is radical and at the foundation of adjudication and if a Court acts without jurisdiction the entire process is a nullity. See Osadebay v. AG Bendel State (1991) 1 NWLR (Pt. 169) 525. The Court cannot decline to deal with an issue of jurisdiction raised for the first time on appeal without leave. The issue of jurisdiction cannot be defeated by any provision of the rules of Court. See S. O. Akegbejo & 3 Ors v. Dr. D. O. Ataga & 3 Ors (1998) 1 NWLR (Pt. 534) 459 at 469.” Per NGWUTA, J.S.C
See also Socio-Political Research Development vs Ministry of FCT & Ors (2018) LPELR-45708(SC).
On the strength of the above authorities, this Court can consider the first issue since it is an issue that borders on jurisdiction.
Before I consider in some details the merit of the argument on issue 1, I will wish to comment on the argument of the Appellants’ counsel on this issue. In my opinion, the learned counsel did not really assist the Court on this point. All the learned counsel was addressing here is the effect of lack of jurisdiction and statute-barred action. He stated this general principle supported with a lot of cases. This does not really address the question whether Section 2 (a) of POPA applies to this case. The learned counsel should have done more than it did to assist this Court. It is not proper for counsel to expect Court to do research for them. Counsel in their address is supposed to give the Court enough materials to work with. This Court made this point in Loye & Anor vs Newlife Microfinance Bank Ltd (2022) LPELR- 57868 (CA).
“Counsel owes a duty to assist the Court by citing decided cases that are relevant to the enquiry before it, which duty was observed in the breach in the instant appeal.” Per AFFEN, J.C.A
I will start with issue 1 being the first issue formulated and much more than that, being an issue on jurisdiction, it has to be handled first because the determination of that issue will determine whether we will consider the merit of the appeal. On issue 1, the Appellants are saying that the lower Court lacked jurisdiction to entertain the matter because the action was not commenced within 3 months as required by Section 2(a) of POPA since the Appellants are public officers. The law is settled by the provision of Section 2 (a) of POPA that any grievance against a public officer must be commenced in Court within 3 months from when the cause of action accrued otherwise the action is statute-barred. See Hassan vs Aliyu & Ors (2010) 7-12 S.C. 21; Oba Awolola, The Ededa of Eda- Oniyo, Ekiti vs The Governor of Ekiti State (2018) LPELR-46346(SC). I will at this stage reproduce the provision of Section 2 (a) POPA and some decisions of the Courts.
Section 2 of the Public Officers Protection Act, Laws of the Federation, 2010 provides as follows:
“Where any action, prosecution, or other proceeding 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 such Act, law, duty or authority, the following provisions shall have effect:
(a) Limitation of time – 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 a continuance of damage or injury within three months next after the ceasing thereof”
By the above provision, it is clear that the provision only relates to public officers who are protected in the course of carrying out their legitimate public duty. It stands to reason that the law does not protect a person who is not a public officer or even a public officer who arbitrarily uses his power or act clearly outside his jurisdiction. Let us take a little excursion into the case law on the subject. In B.P.E. vs. Reinsurance Acquisition Group Ltd & Ors (2008) LPELR-8560 (CA) at pages 38-41, it was held:
“The persons whom the provisions of the Public Officer Protection Act would not cover are persons who are independent contractors for the provision of services for a public of (sic) services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles. See F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. (798) 162 at 195; Ibrahim v. J.S.C Kaduna State (1998) 14 NWLR (pt. 584) 1; Permanent Secretary Ministry of Works etc. v. Balogun (1975) 5 SC 57.
The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment. Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt.739) 458. The defence of the Public Officers Protection Law can avail public officers who act in execution of their duty without malice. Thus, motive on the part of the public officer is relevant but the mala fide of the public officer must be made an issue. Okeke vs. Baba (2000) 3 NWLR (Pt. 798) 644 at 652; Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379; Olaosebikan vs. Williams (1996) 5 NWLR (Pt. 449) 437. In Offoboche vs. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 739) 458, the Supreme Court held:- The Public Officers (protection) law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. Thus, the law will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case, he is not acting within the terms of the statutory or other legal authority. In such state of facts, he has abused his position for the purpose of doing wrong and the protection of the law would never apply to such a case. Nwankwere vs. Adewunmi (1966) 1 All NLR 129; Lagos City Council vs. Ogunbiyi (1969) 1 All NLR 297.
The object of the public officers’ protection law is to afford protection to public officers in respect of anything done in the execution of or carrying out their duty. The protection comes into play after the expiration of 3 months from the date of the commission of the act or acts which give rise to the cause of action. Per Uwais, JSC (as he then was) in Yabugbe vs. COP (1992) 4 NWLR (pt. 234) 152 at 176; Egbe vs. Adefarasin (1985) 1 NWLR (pt.3) 549, Egbe vs. Alhaji (1990) 1 NWLR (pt. 128) 546;Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258.”
The period within which an action can be commenced against a person covered by the said Section 2, POPA is 3 months from when the cause of action arose. Any action commenced against a Public Officer covered by this section after 3 months will be statute barred. The implication of this is that such an action is dead on arrival and no amount of legal oxygen by the most brilliant and articulate lawyer can bring such an action back to life. No matter how serious or good the case can be, it is all over for the party aggrieved as the Courts is deprived of any power to adjudicate on a statute-barred action. See Elukpo vs. Ibrahim & Anor. (2013) LPELR-20235 (CA). The implication is that people should not sleep over their right as equity does not aid the indolent. See Att. Gen. of Rivers State vs. Ude (2006) LPELR-626 (SC).
I must however hasten to add that there are exceptions to this principle. These are matters dealing with recovery of land, contract and when the public officer acts beyond his powers and duties. In such situations, Section 2 (a) of POPA will not apply. See Offoboche vs Ogoja LG & Anor (2001) 16 NWLR (pt. 739) 458 where it was held as follows:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is the use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of liable for some indirect purpose. The law has been put thus: “If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive. ” Per AYOOLA, J.S.C
Two more cases will not be out of place. This is the case of Rahamaniya United (Nig) Ltd v. Minister of FCT & Ors (2021) LPELR-55633 (SC), the apex Court held:
“Section 2(a) of the Public Officers Protection Act is intended to protect public officers from undue litigation in the course of the discharge of their official assignments. See OFFOBOCHE VS OGOJA LOCAL GOVERNMENT (2000) 16 NWLR (PT.739) 458. It must however, be reiterated that the provisions of the Public Officers Protection Act does not provide an impenetrable shield for public officers. The protection is not absolute, hence it does not apply to actions for recovery of land, breach of contract or claims for work and labour done. See ROE LTD VS UNN (2018) LPELR-43855 (SC), F.G.N. VS ZEBRA ENERGY LTD (2002) 18 NWLR (PT.798) 162 at 196; WEMA SECURITIES AND FINANCE PLC. VS NAIC (2015) LPELR-24833 (SC) at 64-65, BAKARE VS NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (PT.1064) 606.
The defence of the Public Officers Protection Act can only avail Public Officers whose act in the course of the execution of their duty is without malice.” Per OSEJI, J.S.C.
I will refer to one case in this regard, this is the case of SULGRAVE HOLDINGS INC & ORS VS. FGN & ORS (2012) 17 NWLR (PT 1327) 309, where the Supreme Court held thus:
“The Public Officers Protection Act is a Statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within THREE Months of the act, neglect, or default complained or in the case of continuing damage or injury within THREE MONTHS next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaintiff. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred, and cannot be maintained. See FALAE V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC P.1. OBIEFUNA V. OKOYE (1964) 1 SCNLR 144; EGBE V. ADEFARASIN (NO.1) (1985) 1 NWLR (Pt.3) 549.”
The exception to the provision of Section 2 (a) POPA as clearly stated relates to recovery of land, breach of contract and when the public officer abuses his powers or acted arbitrarily, that is to say outside the law. I must also add that in a case involving violation of the fundamental right of a person, Section 2 (a) will not avail the public officer.
It is not in dispute that the Appellants are public officers within the meaning of the Act. The first question is whether the action was commenced within 3 months from when the cause of action accrued? If it was commenced within 3 months then the next question will be whether this action falls within the exceptions to the provision? If the answer to the first question is positive then the lower Court was in order to assume jurisdiction but if it is negative then we proceed to answer the second question. If the answer to that question is in the positive, again the lower Court will be on good ground to have assumed jurisdiction. If on the other hand, it is negative, the whole proceeding and the decision of the Court will be a nullity.
At this stage, we need to determine when the cause of action accrued, compare same with the date the action was filed in determining whether it was filed within 3 months. The cause of action is what gave rise to the complaint upon which the Court will determine the right and liabilities between the parties. This is the basis of the complaint which the Court will decide on. This can be a fact or set of facts. The cause of action in the case leading to this appeal is the disengagement of the Respondent from the service of the Appellants. That is not difficult to deduce from the case stated by the Respondent and his reliefs before the lower Court. The Respondent is challenging his disengagement from service and therefore claiming for payment of his salaries and benefit. In determining the cause of action, a Court will look at the statement of claim. By the statement of claim and the evidence before the lower Court, the date the cause of action accrued in my opinion was the date the 1st Appellant received the report of the Appeal Committee, when he is alleged to have made the pronouncement that those who were not cleared by the Appeal Committee should consider themselves disengaged from the service of the Kogi State Civil service. This date is the 27th of April, 2017 (27/4/2017). Three months from this period will be the 27th of July, 2017 (27/7/2017) or worst case 26th July, 2017 (26/7/2017). If the action is filed on or before the 27th July, 2017, the action was filed within time and therefore the POPA will not apply to the case on appeal and therefore the lower Court was in order to have assumed jurisdiction. I have looked again at the submission of Appellants’ counsel, I cannot see anywhere he calculated the 3 months period. He did not state when the cause or action accrued and when the action was filed. This again is not good enough. I have looked at the record and it is clear to me that the action was filed on 26/7/2017. This is within the 3 months period. The implication of this is that since the action was filed within the 3 months period, Section of POPA does not apply and the lower Court was right in exercising jurisdiction over the matter. I am most unimpressed with the Appellants’ counsel, if he was a little more diligent in doing the simple calculation, this issue would not have been raised. Here we are and so, it only remains for me to hold that I resolve this issue in favour of the Respondent and against the Appellants. For avoidance of doubt, the lower rightly assume jurisdiction over the matter.
The more important and serious issue in my opinion is issue 2 which reads thus:
Whether the Court below properly evaluated the evidence adduced before it in accordance with law before entering judgment for the Claimant, now Respondent.
The lower Court entered judgment for the Respondent by asking the Appellants to calculate the salaries and entitlements of the Respondent from when they stopped paying him. This decision is based on the premise, according to the lower Court, that the Appellant admitted that he has not paid the Respondent for the period. This aspect of this decision is worrisome to the Appellants when the lower Court has clearly found as it did at pages 322- 326 of the record that there is no evidence that the Respondent was disengaged from the service of the Kogi State civil service. In fact, the Appellants have stated in most unequivocal terms that the Respondent has not been disengaged and he is in fact still a staff of the Kogi State Government though he is been investigated hence he was not cleared by the Appeal Committee. This piece of evidence was unchallenged and therefore the lower Court should have acted on it since the law is well established that a Court will act on unchallenged evidence. See APC vs INEC & Ors (2014) LPELR-24036(SC); Military Gov of Lagos State & Ors vs Adeyiga & Ors (2012) 2 S. C (pt I) 68. The Respondent, the lower Court held could not prove that he was disengaged from the service or the Kogi State Government. This finding is based on the premise that, the Respondent could not produce any letter of disengagement or termination. The lower Court rightly held in my view that the purported pronouncement of the Governor does not amount to disengagement from service. This was the finding of the lower Court at pages 322-326 of the record. I will quote the relevant part of those pages that highlights the findings. At page 322, the Court held:
“It is not enough that the claimant stated that he knew as a fact that the 1st Defendant said ‘any civil servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service’ without more. This does not in itself prove disengagement neither does it prove the approval of disengagement.”
At page 323, the lower Court went further to hold:
“This Court hereby declare that the contract of employment is still subsisting as maintained by the Defendant”
At page 324, the Court further held:
“No, useful material has been placed before this Court to establish the purported disengagement or approval of disengagement of the Claimant by the 1st Defendant on the 27th April, 2017. The Claimant did not establish before this Court how he knew of the purported disengagement or termination. Did he hear on the radio or TV? How was his employment terminated?”
The lower Court specifically held at page 325 thus:
“I therefore find and hold that the Claimant has not justified the grant by establishing his claim to the satisfaction of this Court with cogent and credible evidence.”
Finally at page 326, the lower Court held:
“…The fact that the claimant is an un-cleared staff does not establish the fact that he has been disengaged. In the final analysis, Relief 1 and 2 cannot be granted.”
This is a correct finding of fact by the lower Court, I cannot fault it. The lower Court has properly evaluated the evidence before it and soundly applied the position of the law in arriving at the above decision. The appointment of the Respondent was not made by announcement and so his removal cannot be made by pronouncement. He was given a letter of appointment and so, only a letter of termination will amount to proper termination or disengagement. A contract of employment entered into in writing can only be terminated in writing. The Respondent was therefore unable to prove his disengagement. To this extent, the lower Court properly evaluated the evidence before it in arriving at its decision in dismissing reliefs 1 and 2. The reason for that decision is that the Respondent could not prove that he has been disengaged. The purport of this is that the Respondent is still in service and so the talk of the unlawfulness and illegality of his disengagement does not arise. It follows therefore that he was not disengaged. If, as the lower Court has held, the Respondent was not disengaged by the Appellants, the talk whether the disengagement was lawful or legal does not arise as the foundation of the case of the Respondent has fallen. Similarly, the point whether he was giving fair hearing before his disengagement does not arise as the lower Court has held that the Respondent was not disengaged. The foundation of his case as it relates to reliefs 1 and 2 is that he was disengaged from service. His challenge on the disengagement is that the allegation against him is unproved and he was not given fair hearing. Since there is no disengagement, the issue of lawfulness, legality and fair hearing has nothing to stand on. The law on this is that no one can put something on nothing expecting it to stand. This is a legal and natural impossibility. See U.A.C. vs Macfoy.
Haven properly evaluate the evidence before it and dismissed reliefs 1 and 2, the question is whether the lower Court was right in the light of the finding to have granted part of relief 3 dealing with the payment of Respondent’s salaries and allowances? The lower Court concerning relief 3 made the following order in these words in the interest of justice:
“I hold on the authority that the Claimant in this case is entitled to an order for the payment of his salaries and allowances from the date of his salary to date.
Issue 3 is accordingly resolved in favour of the Claimant to the effect that the employment of the Claimant is still subsisting with the Civil Service of Kogi State and is entitled to the payment of all arrears of his salaries and benefits.
The Defendants are ordered to calculate and pay to the claimant salaries and allowance due to him.
The sum due to him must be paid within 30 days from the date of this judgment and if not paid within the period, the sum shall attract 10% interest per annum until paid.
Judgment is entered accordingly.”
It can be argued as the Appellants’ counsel has done that the case the Respondent made in its pleading and the evidence before the lower Court in oral and documentary evidence is that he is entitled to reinstatement and payment of salaries and benefit because he was wrongly disengaged from service. This can be a reasonable deduction however, on the other hand, it can also be argued as the Respondent’s counsel has done before this Court that relief 3 is severable and independent relief from reliefs 1 and 2? Which is of these two arguments meets the justice or the case? I must say with all sense of responsibility that the primary duty of a Court is to do justice and therefore all laws must be interpreted to ensure justice is done. I will at this stage reproduce relief 3 in determining whether the relief is severable from reliefs 1 and 2. AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payments of all arrears of his salaries and benefits
If I hold that the reliefs 1 and 2 are severable from relief 3 then I will uphold and affirm the decision of the lower Court but if I hold that the reliefs are not severable, I will set aside the decision or the lower Court. The main issue in this regard therefore is to determine whether the reliefs are severable. The reliefs are severable when they are not dependent on each other and when one is not a collateral of the other. That is to say that the granting or the refusal of one will not necessarily affect the other. Once relief 3 is not an auxiliary relief to reliefs 1 and 2 that is to say it is not tied to reliefs 1 and 2 meaning it can stand alone, the lower Court will be in order to grant relief 3 even if dismissing reliefs 1 and 2. It can stand alone.
From the reliefs sought, reproduced above the Respondent is claiming reinstatement and further to be paid the salaries and allowance for the period he has not been paid. There is evidence from the Respondent in the lower Court that he has not been paid his salary and allowances since July 2017. The Appellants did not deny the fact that the Respondent is still in his employment and further that the Respondent has not been paid since 2017. This admission, the lower Court saw as a motivation to invoke the principle of law to the effect that if any wrong is established, the law will provide a remedy as expressed in the Latin maxim of Ubi jus ibi remedium (where there is a right, there is a remedy). The implication of this is that no wrong should go without a remedy once the wrong has been established. That is to say, where the law has established a right there should be a corresponding remedy for its breach. This is what justice demands. See Lau v. PDP & Ors (2017) 6-7 S.C (pt 11) 18; BFI Group Corporation v. B. P.E (2012) LPELR-9339(SC)
I will refer to the very instructive Supreme Court case of Bello & Ors v. A.G. Oyo State (1986) 5 NWLR (pt 45) 825 where it was held:
“I think it is erroneous to assume that the maxim Ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the Plaintiff has established a right.
The Court obviously cannot do otherwise.
It is enjoined to eschew reliance on technicalities in the determination of disputes -see State v. Gwonto & Ors (1983) 1 SCNLR. 142 at p. 160. The substance of the action rather than the form should be the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).” Per KARIBI-WHYTE, J.S.C
The Respondent is still in the employment of the Appellants since he has not been disengaged. This means he is entitled to salaries and allowances as a staff. It is his right to be paid salaries and allowances. Whether he is disengaged or not, for the period he is a staff, it is his right to earn salaries for the period he has worked. The Appellants have not disengaged him or cleared him, the purport of that is that he is still a staff. By the admission of the Appellants, he is owing the Respondent his salaries and allowances since July 2017 when they stopped paying him. The Respondent has been wronged and therefore he is entitled to remedy. The Respondent has a right to salaries and allowances which he has established and it is clear even on the admission by the Appellants, that right has been breached for which the Respondent deserves a remedy. What remedy is he entitled to? The Respondent has claimed in relief 3 apart from reinstatement which fails, for the payment of his salaries and the allowance which the Appellants has not paid him. The remedy open to the Respondent for the breach of his right to be paid salary for work done is to seek for an order for payment. This is what the Respondent sought for which the lower Court granted. I make bold to say that this is a relief which is not tied to his disengagement but rather a right which must be protected by remedy and which meets the justice of the case. I am fortified in agreeing with the decision of the lower Court based mainly on the admission of the Appellants that they have not paid the Respondent salaries since July 2017. In view of the admission of the Respondent, he is therefore entitled to his claim.
I am further fortified by the fact that at worst relief 3 can be an auxiliary relief since it is a claim before the Court brought out in evidence before it and it is supported by evidence. A Court cannot grant an auxiliary relief which is not made out from the case before the Court. The apex Court made this point in Adenuga & Ors vs Odumeru & Ors (2001) 1 S.C. (pt I) 72 where it held thus:
“It is settled law which does not require citation of decided cases that any application for relief subsequent to the claim before the Court shall be within the purview and scope of the claim. This is because a plaintiff is limited by his claim as expressed in his writ of summons and statement of claim. Any departure from the claim so endorsed and to make a new claim gives rise to a new cause of action in respect of which the jurisdiction of the Court has not been invoked by the institution of an action. The jurisdiction of the Court is determined by the claim of the plaintiff. This is why any ancillary relief must fall within the scope of the claim in the substantive action.” Per KARIBI-WHYTE, J.S.C
This ancillary relief is made out in the case before the lower Court and therefore, the lower Court properly evaluated the evidence in arriving at the decision. I resolve this issue in favour of the Respondent.
On the whole, having resolved both issues in favour of the Respondent, the obvious order to make is to dismiss this appeal as lacking in merit while affirming the judgment of the lower Court.
I award cost of N300,000 against the Appellants in favour of the Respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity to read the draft of the leading judgment just delivered by my learned brother, his lordship, Ebiowei Tobi, J.C.A. I am in agreement with his reasoning and conclusions.
His lordship has commendably summarized the facts of the case leading to the appeal and addressed all the issues that were submitted to the Court for determination. After a close perusal of the facts in evidence in the record of appeal, I agree that while the Appellants rightly raised the issue of jurisdiction based upon the alleged infraction against Section 2(a) of the Public Officers Protection Act, as a new issue and for the first time in this Court without the leave of Court having been sought and obtained, it was bound to be looked into by this Court. This is because, as an issue of jurisdiction, it can be raised at any time, even for the first time at the Supreme Court. The issue of jurisdiction is no doubt central to the determination of any case. Any case decided by the Court without jurisdiction is a waste of time as it amounts to a nullity. I therefore agree that the issue touching on the jurisdiction of the lower Court to have entertained the claim of the Respondent, was rightly raised -Network Securities Ltd V Dahiru (2022) LPELR-57835(SC).
However, that is at far as it goes, as the Appellants failed to establish their contention on this issue. Learned Counsel for the Appellants clearly did a shoddy job in preparing his Brief of argument. One would have expected that the vital points to establish that the Respondent’s claim was statute-barred would have been clearly brought to the fore and established, in their Brief of argument. For the Appellants to fail to even state the date on which the cause of action accrued and the date on which the suit was filed, smacks of a lack of diligence on the part of Counsel. The Court, being an impartial umpire, is not expected to descend into the arena to fill in the gaps in the Appellants’ appeal. Rather, the Appellants must establish the contentions in their appeal all by themselves, as should the Respondent, before the Court can step in to resolve their dispute. As it stands, from the state of the submissions in the Appellants’ Brief of argument, there is no material for the Court to work on to come to a determination in the Appellants’ favour on this issue. They simply did not establish that the case at the lower Court was filed more than three months after the cause of action accrued, and so was caught by Section 2(a) of the Public Officers Protection Act – The Ededa of Eda-Oniyo, Ekiti V Gov. Ekiti State (2018) LPELR-46346(SC). Issue one is therefore rightly resolved against the Appellants.
The second issue complains that the learned trial Judge did not properly evaluate the evidence placed before the Court in arriving at his findings. From an examination of the proceedings in the record of appeal, this complaint is also not borne out. Clearly, the lower Court painstakingly reviewed the evidence placed before it and the submissions of Counsel before arriving at its decision. The claim of the Respondent was for declarations that his disengagement from the service of the Kogi State Government, i.e., the 1st Appellant, was illegal, null and void, and that it also breached his right to fair hearing. In responding to this, the Appellants vehemently denied that they had disengaged the Respondent from service, but admitted that he was under investigation. In addition, and more importantly, they admitted owing the Respondent his salaries and allowances and explained that it was as a result of the financial situation in the State. See the evidence of DW1. Based on these admissions, the lower Court evaluated the evidence on both sides and rightly found in favour of the Respondent. I cannot see my way clear to interfere with the decision.
On whether the lower Court was right to have granted a part of relief 3, i.e., the payment of his salaries and allowances, when reliefs 1 and 2 seeking declarations that his disengagement was unlawful, null and void, and it breached his right to fair hearing, I completely agree with the findings in the lead judgment that, where a right has been established, there must be a remedy – Ubi jus ibi remedium – Lau V PDP (2017) 6-7 SC (P. II) 18; Bello V AG Oyo State (1986) 5 NWLR (Pt. 45) 825. The peculiar facts of this case is that the Appellants themselves made admissions upfront against their interest when they stated that they had not disengaged the Respondent from their service and that he was still a staff of the 1st Appellant. Secondly, they admitted owing the Respondent his salaries and allowances from 2017 due to the fact that he was under investigation and also the financial difficulties experienced by Kogi State. That being the case, reliefs 1 and 2 had been overtaken by these admissions and were no longer in issue. Having admitted the part of relief 3 which claimed for arrears of salaries and allowances, the lower Court was right when he severed the claim and awarded it as claimed. It is based on these reasons that I also resolve both issues in favour of the Respondent.
In the result, for these reasons and the detailed reasons in the leading judgment of my learned brother, Ebiowei Tobi, J.C.A., that I too dismiss the appeal. I abide by the consequential orders made therein.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, EBIOWEI TOBI, JCA, where the facts and issues in contention have been set out.
The claim of the Respondent, as Claimant before the lower Court, is the following:
1. A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1st Defendant on 27th April, 2017 from the Civil Service of Kogi State upon unproven allegations made against the Claimant in the Report of the Kogi State Staff Screening/ Verification Appeal Committee is unlawful, illegal, void and of no consequence whatsoever.
2. A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1st Defendant upon the Report of the Kogi State Staff Screening/Verification Appeal Committee without affording the Claimant the opportunity of being heard in response to the allegations is a violation of the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria as amended.
3. AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payments of all arrears of his salaries and benefits.
The issues for determination formulated by the Appellants’ Counsel, adopted by the Respondent’s Counsel and the Court are the following:
1. Whether the Court below had jurisdiction to entertain the Claimant’s suit in view of Section 2 (a) of the Public Officers Protection Act, Cap P41, LFN 2004.
2. Whether the Court below properly evaluated the evidence adduced before it in accordance with law before entering judgment for the Claimant, now Respondent.
The 1st issue for determination turned on the question of whether this action is statute-barred, having not been commenced within 3 months, contrary to Section 2 (a) of the Public Officer Protection Act (POPA).
Section 2 of the Public Officers Protection Act, Laws of the Federation Supra provides as follows:
“Where any action, prosecution, or other proceeding 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 such Act, law, duty or authority, the following provisions shall have effect:
(a) Limitation of time – 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 a continuance of damage or injury within three months next after the ceasing thereof”
I agree with the conclusion of my learned brother that this Act was not applicable to this case to divest the lower Court of jurisdiction to entertain this action. The reason, in my opinion, is because the suit borders on the contractual rights of the Respondent under his employment with the Kogi State Government. It is settled that the Act does not apply in cases of contract.
It was held by the Supreme Court as follows, in the case of Wema Securities And Finance Plc V. Nigeria Agricultural Insurance Corp (2015) 16 NWLR Part 1484 Page 93 at 138 Para A-G per Nweze JSC:
“It is now settled law that Section 2 of the Public Officers (Protection) Act (and all such enactments similarly worded like it, for example, Section 26(1)(a) and (b) of the Nigerian Agricultural Insurance Act (supra) do not apply to cases of contract… To hold otherwise would be to negate the general principles upon which the law of contract is based per Rhodes-Vivour, JSC in Ugwuanyi v. NICON Insurance Plc (2013) LPELR -20092(SC); (2013) 11 NWLR (Pt. 1366) 546.”
This decision was cited with approval among a series of others in the case of Rahamaniya United (Nig) Ltd v. Minister of FCT & Ors (2021) 17 NWLR Part 1806 Page 481 at 502 Para A-D per Oseji JSC, as follows:
“…Section 2(a) of the Public Officers Protection Act is intended to protect public officers from undue litigation in the course of the discharge of their official assignments.
See Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458. It must however, be reiterated that the provisions of the Public Officers Protection Act does not provide an impenetrable shield for public officers. The protection is not absolute, hence it does not apply to actions for recovery of land, breach of contractor claims for work and labour done. See ROE Ltd v. UNN (2018) LPELR-43855 (SC), (2018) 6 NWLR (Pt. 1616) 420, F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (Pt.798) 162 at 196; Wema Securities and Finance Plc v. NAIC (2015) LPELR-24833 (SC) at 64- 65; (2015) 16 NWLR (Pt. 1484) 93 Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606.”
I hold, in consequence, that the Public Officers Protection Act Supra did not apply to divest the lower Court of jurisdiction to entertain this suit, the action being essentially for breach of the Respondent’s employment engagement with the Respondent. I also resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination, is:
Whether the Court below properly evaluated the evidence adduced before it in accordance with law before entering judgment for the Claimant, now Respondent.
The Respondent, in his 3rd relief before the lower Court, had sought the following relief:
“AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payments of all arrears of his salaries and benefits.”
The lower Court found that there is no evidence that the Respondent was disengaged from the service of the Kogi State Civil Service, as the Appellants had denied that the Respondent has been disengaged, insisting that he is still a staff of the Kogi State Government. They alleged that though he is being investigated, he has not been cleared by the Appeal Committee. The Court, in consequence, refused the order for reinstatement but granted the latter part of the prayer and entered judgment for the Respondent, by the calculation of the salaries and entitlements owed to him from when they stopped paying him.
The premise upon which this was based, according to the lower Court, was that the Appellants admitted that it had not paid the Respondent for the period.
Since, by the admission of the Appellants, it is owing the Respondent his salaries and allowances since July 2017 when they stopped paying him, the lower Court was right, I hold, to have made the order it made with respect to the salaries and allowances due to the Respondent. I accordingly agree with my learned brother that the Respondent was entitled to the remedy granted to him by the lower Court, he having claimed the same.
The Appellants, I hold, should not be allowed to get away with continuously withholding the emoluments of the Respondent on the ground that they have not disengaged him. The just policy should be, if you want him, reinstate him and pay him his arrears. If you don’t want him, disengage him and pay him whatever emoluments are due to him upon termination of his employment. You cannot keep a man’s fate hanging in the balance, with no decisions taken.
For these and the fuller reasons given by my learned brother, Ebiowei Tobi, JCA in the leading judgment, I also dismiss this appeal as being entirely unmeritorious and affirm the decision of the lower Court. I agree with the order for costs made.
Appearances:
A.N. Salau, Esq. with him, F.P. Tarka, Esq. For Appellant(s)
C.D. Anielozie, Esq. For Respondent(s)
