HOSPITAL MANAGEMENT BOARD & ORS v. UNYAH (2021)

HOSPITAL MANAGEMENT BOARD & ORS v. UNYAH

(2021)LCN/15107(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/C/357/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. HOSPITAL MANAGEMENT BOARD 2. THE HON. COMMISSIONER FOR HEALTH, AKWA IBOM STATE 3. THE HON. ATTORNEY GENERAL OF AKWA IBOM STATE APPELANT(S)

And

MICHAEL SUNDAY UNYAH RESPONDENT(S)

RATIO

INTERPRETATION OF SECTION 1(1) OF THE PUBLIC OFFICERS PROTECTION LAW OF AKWA IBOM STATE REGARDING WHEN AN ACTION AGAINST A PUBLIC OFFICER FOR ANY ACT, NEGLECT OR DEFAULT IN THE EXECUTION OR INTENDED EXECUTION OF ANY LAW, PUBLIC DUTY OR AUTHORITY MUST BE COMMENCED AND EFFECT OF SUCH FAILURE

Section 1(1) of the Public Officers Protection Law of Akwa Ibom State provides as follows: 1. (1) 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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any law, duty or authority, the action, or proceedings 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 of such action. The above provision of the Law is a limitation statute. It is the law that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such action had elapsed. See the decisions of the Supreme Court in Mobil Oil (Nig) Ltd v. Coker (1975) 3 SC 175 and Emiator v. Nigerian Army (1997) 12 NWLR (pt. 631) 362. Any action against any public officer in respect of his official conduct or duty as provided by Section 1(1) of Public Officers Protection Law of Akwa Ibom State, shall be brought within three months of the official conduct or duty or action complained of or in the case of a continuing damage or injury within three months next after the damage has ceased. PER JAMES SHEHU ABIRIYI, J.C.A.

WHAT IS A CONTINUING DAMAGE OR INJURY

WHAT THE COURT WILL TAKE INTO CONSIDERATION IN DETERMINING WHETHER OR NOT AN ACTION IS STATUTE BARRED

For the purpose of determining whether or not an action is statute barred, the Court will consider when the cause of action accrued, that is the date on which the incident which gave rise to the cause of action occurred. See the decision of this Court in N.I.I.A. v. Ayanfalu (2007) 2 NWLR (pt. 1018) 246. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 28th September, 2017 in the National Industrial Court of Nigeria in the Uyo Judicial Division holden at Uyo.

In the National Industrial Court (the Court below), the Appellants were the Applicants while the Respondent was the Respondent.

In the Court below, in an amended statement of claim, the Respondent claimed for:
1. A declaration that he was still an employee of the Akwa Ibom State Hospital Management Board.
2. A declaration that the stoppage of his salaries from September, 2007 is unlawful, wrongful and illegal.
3. A declaration that he was entitled to his salaries from September, 2007 until his employment duly comes to an end.
4. An order mandating the payment of N1,932,128.16k being his salaries and other entitlements due to him from September, 2007 by the Appellants.
5. An order of perpetual injunction restraining the Appellants from preventing the Respondent from performing his duties or enjoyment of his right to his office as a principal Nursing Officer (PNO) with the Appellants.
6. Salaries and

allowances from September, 2007 to October, 2010.
7. Salaries and allowances after judgment or until commencement of payment as shall be ordered by the Court.

The Respondent adduced evidence and closed his case. The Appellants immediately thereafter raised a preliminary objection to the hearing and determination of the suit by the Court below by filing a notice of preliminary objection on 5th April, 2017 on the ground that the suit offends Section 1 (1) of the Public Officers Protection Law (Cap. 78) Vol. 4, Laws of Akwa Ibom State 2000 and is statute barred.
The Court below dismissed the preliminary objection of the Appellants and held that the suit was not statute barred.

The Appellants have appealed against the ruling to this Court on one ground of appeal. From the ground of appeal, the Appellants in their brief of argument filed on 24th January, 2020 but deemed duly filed and served on 18th January 2021 presented the following lone issue for determination:
(1) Whether by the provisions of Section 1 (1) of the Public Officers Protection Law CAP. 104, Vol. 5 Laws of Akwa Ibom State, 2000, Suit No. NICN/CA/46/2012 was not caught up

with the limitation time and therefore liable to be dismissed (ground 1 of the Notice of Appeal).

The Respondent also submitted a single issue for determination in a Respondent’s brief filed on 3rd July, 2020 but deemed duly filed and served on 18th January, 2021. The issue is reproduced immediately hereunder:
3.0 Whether the trial Court was right to hold and/or ruled that the Respondent’s action was not statute barred pursuant to S.1 (1) of the Public Officers Protection Law CAP, 104, vo. 5 Laws of Akwa Ibom State, 2000.

Learned counsel for the Appellants submitted that in determining whether or not an action is statute barred the Court must consider the averments in the statement of claim as to when the cause of action arose and when the suit was filed against the defendants. The Court was referred to Oyuncc v. Ajimot (2011) All FWLR (pt. 328) 332 at 338 and Ayayi v. Adebiyi (2012) 11 NWLR (pt. 1310) 137 at 169 – 170.

From the facts disclosed in paragraphs 14, 15, 16 and 21 of the amended statement of claim, it was argued, the 1st appellant stopped the salary of the Respondent in September, 2007 and since then the

Respondent did not approach the Court for redress but kept on writing letters of plea and reminders as shown in paragraph 21 of the amended statement of claim. From the writ of summons, the Respondent’s suit against the Appellants was filed on 1st November, 2010 over three years and two months since the 1st Appellant officially stopped the salary of the Respondent, it was argued.

The Court was referred to Section 1(1) of the Public Officers Protection Law Cap. 104, vol. 5, Laws of Akwa Ibom State, 2000. The suit learned counsel for the Appellants maintained, was instituted after the expiration of three months provided by Section 1(1) of the Public Officers Protection Law. That the action was instituted three years and two months after the alleged act complained of by the Respondent. The Appellants, it was submitted, were protected by the Public Officers Protection Law from litigation after the expiration of three months after their official actions.

It was submitted that the Court below erred in law when it held that there was a continuance of injury and so the protection offered the Appellants could not avail. It was submitted that the

exception of continuance of damage or injury envisaged in Attorney General of Rivers State v. Attorney General, Bayelsa State (2012) 6-7, MJSC (pt. 3) 149 at 155 is in respect of a situation where damage is continuous or injury re-occurring. It was submitted that the injury complained of took place in September, 2007 and since then never re-occurred at a subsequent date.

It was submitted that for the exception of continuance of injury to avail the Respondent the act of removing the name of the Respondent from the payroll should be a continuous activity which is happening now and then not the injury the Respondent suffered in September, 2007 from the removal of his name from the payroll which was a one time event and not a re-occurring event. The Court was referred to Okafor v. Attorney-General, Anambra State (2001) FWLR (pt. 58) 1127 at 1146.

Learned counsel for the Appellants maintained that the cause of action was the stoppage of salary in September, 2007.
It was submitted that correspondence does not stop time from running. It was submitted that the action was statute barred.

Learned counsel for the Respondent submitted that the cause

of action did not arise in September, 2007.
It was submitted that from the point of view of the Court below, the Court does not apply the general principle of limitation law hook, line and sinker.

It was submitted that the cause of action in this case is a continuing one and refreshed as a result of the continuing injury occasioned the Respondents. Therefore the cause of action did not arise in September, 2007 or even within the three months window period.

In his reply brief which he adopted, learned counsel for the Appellants submitted that the case of the Respondent did not fall within the exception of continuance of damage or injury. It was submitted that the exception of continuance of damage or injury envisaged in the case of A. G. Rivers State v. A. G. Bayelsa State is in respect of a situation where damage continues or injury re-occurs. Also that the Court in Okafor v. A. G. Anambra State (2001) FWLR (pt. 58) 1127 at 1146 held that the definition of ‘continuance of injury’ is continuance of the acts which caused injury and not the injury itself. It was submitted that the case of the Respondent does not fall within the

exception contemplated by law.

Section 1(1) of the Public Officers Protection Law of Akwa Ibom State provides as follows:
1. (1) 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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any law, duty or authority, the action, or proceedings 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 of such action.
The above provision of the Law is a limitation statute. It is the law that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such action had elapsed. See the decisions of the Supreme Court in Mobil Oil (Nig) Ltd v. Coker (1975) 3 SC 175 and Emiator v. Nigerian Army (1997) 12 NWLR (pt. 631) 362. Any

action against any public officer in respect of his official conduct or duty as provided by Section 1(1) of Public Officers Protection Law of Akwa Ibom State, shall be brought within three months of the official conduct or duty or action complained of or in the case of a continuing damage or injury within three months next after the damage has ceased.

A continuing damage or injury is the continuance of the act which caused the damage. It is not merely a continuation of the effects of a legal injury but a continuation of the legal injury itself. See the decision of this Court in UNICAL & ORS. v. Bassey (2015) LPELR – 40311 CA p.20-21 per Otisi, JCA.
For the purpose of determining whether or not an action is statute barred, the Court will consider when the cause of action accrued, that is the date on which the incident which gave rise to the cause of action occurred. See the decision of this Court in N.I.I.A. v. Ayanfalu (2007) 2 NWLR (pt. 1018) 246.
In the instant case, the Court below held that the action was not statute barred because “the injury caused the claimant is continuous” and in any case the Court below did not

“see how a statute of limitation can act as a bar to the recovering of money owed the claimant.”
With respect to the Court below, it is the continuance of the act which caused the damage that the Court will consider and not merely the effect of the injury. The Court below in the instant case considered the effect of the stoppage of the salary. If it had considered the act that caused the damage it would have had no difficulty in arriving at the conclusion that the salary was stopped once only in September, 2007.

It is clear from paragraphs 14, 15, 16, 20, 21, 23, 24, 25 of the amended statement of claim and reliefs 2, 3 and 4 that the Respondent’s cause of action is the stoppage of his salary in September, 2007. The Respondent’s salary was stopped once only in September, 2007. That is to say the legal injury occurred once. The Respondent therefore ought to have instituted the action three months from September, 2007 when his salary was stopped.

The Respondent’s case is not for recovery of money owed him by the Appellants. The case of F.G.N. v. Zebra Energy Ltd. relied upon by the Court below is not relevant to this

case. That case is in respect of a contract entered into by the parties and the Supreme Court held that the Public Officers Protection Act did not apply in that case involving a contract between the parties.

As this is not a case of continuing damage or injury but a completed act in September, 2007, the Respondent ought to have instituted the action within three months of the stoppage of his salary. Instead he took out the writ against the Appellants on 1st November, 2010 over two years after the cause of action arose.
In the circumstances, therefore, the Court below had no jurisdiction to entertain the suit.

The only issue for determination is therefore resolved in favour of the Appellants and against the Respondent and the appeal allowed.
Suit No. NICN/CA/46/2012 Michael Sunday Unyah v. Hospital Management Board & 2 Ors is hereby struck out for want of jurisdiction.
Parties shall bear their costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother J. S. Abiriyi, JCA. I agree with the reasoning and the conclusion reached in the judgment based on the

sole issue nominated and adopted by the contending parties.

My learned brother who delivered the lead judgment was right to have said that if the Court below had considered the act that caused the damage, that is the stoppage of the Respondent’s salary, it would have had no difficulty in coming to the conclusion that the salary was stopped once only in September, 2007. The cause of action therefore arose in September, 2007, when the Respondent’s salary was stopped by the Appellants.

The Respondent, therefore ought to have instituted the action three months from September, 2007 when, his salary was stopped. For this reason, I also allow the appeal. I abide by the consequential orders and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of previewing the judgment of my learned brother, James S. Abiriyi, JCA. I agree with the reasoning and conclusion reached in allowing the appeal.

In particular, I agree with the lead judgment that the respondent’s cause of action was not continuous and therefore the statute of limitation aptly applied to the case.
I too allow the appeal and abide by all the consequential

orders contained in the lead judgment.

Appearances:

U. Udonnah Esq., Assistant Chief State Counsel, Ministry of Justice, Akwa Ibom State For Appellant(s)

Moses, Esq. For Respondent(s)