KAISER KONFA GEORGE v. PETROLEUM TRAINING INSTITUTE, EFFURUN & ORS.
(2010)LCN/3788(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/B/55M/2003
RATIO
LIMITATION LAW: ATTITUDE OF COURT TOWARDS STATUTE OF LIMITATION
It is settled law that where time for taking action in court are prescribed in a statute of limitation, the time so prescribed also dictate the time when the court shall have Jurisdiction to hear the case. In other words, even though courts are enjoined to do substantial Justice and avoid technicalities, it must be justice according to law. Once it comes to the issue of limitation of time, the courts are bound by the statute, if the statute provides that there shall be no jurisdiction if the time to institute an action is not adhered to, once a party strays outside that time, it automatically robbs the court of Jurisdiction. See OMOMEJI v. KOLAWOLE (2008) 14 NWLR (Pt.1106) P. 180. S.C. PER CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A
PROCEDURE: RATIONALE BEHIND THE GRANT OF APPLICATION TO SET DOWN THE POINT OF LAW
The application to set down the point of law for hearing as in this case, is usually granted where, in the opinion of the court, the point of law is such that a decision on it will substantially dispose of the action. See LASISI FADARE v. ATTORNEY GENERAL OF OYO STATE (1982) 4 S.C.1 where the Supreme Court held that the procedure is designed to ensure that Suits that can be expeditiously dealt with and disposed of on grounds of law are not carried through a long and expensive trial. If the points of law raised thereby substantially dispose of the whole action, the Rules vests the trial court with the power to dismiss the action. PER CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
KAISER KONFA GEORGE Appellant(s)
AND
1. PETROLEUM TRAINING INSTITUTE, EFFURUN
2. MR. I. FREGENE, REGISTRAR PETROLEUM TRAINING INSTITUTE
3. ENGR. ESSIEN, DIRECTOR OF STUDIES, PTI
4. ENGR. M.O. ONIPEDE, PRINCIPAL & CHAIRMAN, ACADEMIC BOARD, PTI
5. COUNCIL OF THE PETROLEUM TRAINING INSTITUTE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A: (Delivering the Leading Judgment): This is an appeal against the Ruling of Justice I.N. Auta of the Federal High Court Benin which ruling was delivered on the 30th of April, 2002 dismissing the Suit on the ground that it was statute barred by virtue of Section 2 of the Pblic Officers Protection Act Cap.379 Laws of the Federation 1990.
The Appellant, Kaiser Konfa George was offered admission into Petroleum Training Institute, Effurun (1st Respondent) for a Higher National Diploma in Petroleum Engineering in the 1994/1995 Academic Session. The academic requirements of the said Institute was that a student who failed to make a minimum G.PA of 1.75 at the end of two successive semester examinations may be asked to withdraw from the Institution. The Appellant scored a G.PA of 1.62 at the end of two successive semester examinations in 1994/1995 academic year and was therefore advised to withdraw from the Institution vide Respondent’s letter Ref. No. REG/AC/ER.10/VOL.1/19 dated the 22nd January, 1996.
By a Writ of Summons dated and filed on the 15th of April, 1998, the Appellant claimed against the Respondents thus:
“…………………… On or about the 26th day of January, 1996, the Defendants caused the Plaintiff to be served with a letter signed by the 2nd Defendant on behalf of all other Defendants, advising the Plaintiff to withdraw from P.T I. The Plaintiff took up the matter with the Head of Department who advised the Plaintiff to go on with his courses; and the Plaintiff proceeded, took all courses, examinations and wrote his project which was approved by his Head of Department. It was when the Plaintiff wanted to register for and Semester HND II courses that the Officer at the Exams and Records Unit notified him verbally of his expulsion from the Institute (P.T.I.). The Plaintiff was never invited to appear before a Panel neither did he perform below the required academic standard.
WHEREFORE by reason of the premise that Plaintiff claims against the Defendants jointly and severally as follows:
(a) A DECLARATION that the letter of the Defendant dated 22/1/96 by which said letter the Defendant advised the Plaintiff to withdraw from the Petroleum Training Institute is illegal, null and void for being in violation of the rights of the Plaintiff as contained in the various regulations governing the relationship between the Plaintiff and the Defendants.”
(b) A DECLARATION that the Plaintiff is still a bona fide student of the Petroleum Training Institute (P.T.I.) with all rights, privileges and benefits of all bona fide students of the Institute.
(c) AN ORDER directing the Defendants, their agents, privies and/or persons acting through or under them to release all results of the Plaintiff in the HND programme at P.T.I. in respect of Examinations which the Plaintiff actually sat for.
(d) AN ORDER directing the Defendants to release the certificate as well as the results of the Plaintiff upon the Plaintiff satisfying all requirements of the Institute (P.T.I.) for the release of the results and certificate.
(e) AN ORDER of injunction restraining the Defendants, their agents, privies and or persons acting through or under them from further interfering with the activities of the Plaintiff as a student in the Higher National Diploma (HND) programme in the Petroleum Training Institute.
(f) Cost of instituting and maintaining this action.”
The Respondents (Defendants at the lower court) upon service of the Statement of Claim, filed a joint Statement of Defence on the 14th of June 2001, whereby they pleaded that the suit was statute barred, being that it was not filed and initiated within three months from the 22nd of January, 1996 as provided for by the Public Officers Protection Act.
By a motion dated and filed on the 14/6/2001, the Respondents urged the court below to set down the points of law raised in the Statement of Defence for hearing. After hearing both parties, the court in a considered ruling delivered on the 30th of April, 2002 dismissed the suit for being statute barred.
Dissatisfied with the said Ruling the Appellant has appealed to this court on three Grounds set out in the Notice and Grounds of Appeal dated 3/7/2002, and filed on the 8/7/02 which without their particulars read:
“GROUND ONE
The learned trial Judge misdirected himself in law when he stated thus:
‘The Plaintiff in the Statement of Claim in paragraph 2 – 4 stated that the 1st Defendant is a statutory body while the 2nd – 4th Defendants are functionaries of the Defendant which makes them Public Officers. Therefore this settles the question of whether they are public officers or not as what is admitted need no proof.
GROUND TWO
The learned trial Judge erred in law in holding that the Defendants are Public Officers when the Defendants did not specifically plead the Particulars limitation law which they allege makes the Plaintiff’s Claim not maintainable.
GROUND THREE
The learned trial Judge erred in law by not considering the Case put forward by the Plaintiff when he pointed out that the status/capacity/identity of Defendants should be established by pleading.”
In his brief of argument, learned counsel for the Appellant, John Alele Esq. formulated three issues for determination in the following terms:
“(1) Is it right and this without more that upon the Plaintiff’s pleading that the 1st Defendant is a statutory body and the 2nd, 3rd and 4th Defendants are functionaries thereof. That this would entitle the lower court come to the conclusion that the said pleading makes them Public Officers vide page 19 of the record of proceedings?
(2) Is it right for the lower court to apply Section 2(a) of the Public Officers Protection Act to the Suit before it when this provision of the said Act was not specifically pleaded and in addition permitted evidence to be received in that behalf?
(3) Is it right for the lower court to have applied the principle of STARE DECISIS to the situation in hand as set out at page 19 of the record where the two cases cited before the lower court are saying the same thing?
For the 1st – 5th Respondents, their counsel C.A. Ajuyah formulated one issue for determination thus:
“Was the learned trial Judge wrong in dismissing the Suit on the basis that it was filed out of the time provided by S. 2(a) Public Officers Protection Act?”
In my view, all the issues formulated by counsel to the parties in this appeal as arising from the grounds of appeal, in their various wordings, form and content, are similar in content and can be summarized in one broad issue namely:
“Whether from the pleadings of parties the learned trial Judge was right in dismissing the suit as being statute barred as provided by Section 2(a) of the Public Officers Protection Act.”
All arguments of counsel for the parties in this appeal hinge on this single issue. It is, therefore, on the basis of this single issue that propose to determine this appeal.
In his argument in support of the appeal, learned counsel for the Appellant, Mr. John Alele referred to Paragraphs 2 – 4 of the Statement of Claim and submitted that the fact that the 2nd – 4th Respondents are functionaries of a statutory body cannot per se make them Public Officers. He argued that the said Paragraphs 2 – 4 of the Statement of Claim did not state that the Respondents “By virtue of the Petroleum Training Institute Act Cap.356 Law of the Federation of Nigeria are public Officers.” He therefore submitted that the lower court was wrong when it ruled that having described the Respondents are public officers in the Statement of Claim, that it follows that by virtue of the provisions of Section 2(a) of the public officers protection Act (POPA) no action can be commenced against any person for any act done except it is commenced within three months. He further argued that the lower court was wrong in relying on the case of IBRAHIM v. KADUNA STATE JUDICIAL SERVICE COMM. (1998) 14 NWLR (Pt.584) Page 1, and describing and treating the Respondents as members of the Federal Civil Service of Nigeria. Counsel attempted to draw a distinction and argued that not all statutory bodies are public officers nor the functionaries thereof. He cited and relied heavily on Sections 25 & 26 of the PORTS ACT. CAP.361 Laws of the Federation of Nigeria 1990, as well as Section 4(1) NNPC ACT CAP 320 LAWS OF THE FEDERATION 1990.
In his brief, learned counsel for the 1st – 5th Respondents, C.A. Ajuyah also referred to paragraphs 2 – 4 of the Appellant’s Statement of Claim in the lower court as well as the letter of 26/1/96 asking the Appellant to withdraw, and contented that the Appellant having been advised to withdraw form the Institute vide Respondents’ letter of 26/1/96, the Provisions of S. 2(a) of the Public officers Protection Act, limited the period within which to commence a Suit against Public Officers to within “three months next after the act, neglect or default complained of.” He argued that the Respondents being Public Officers, the three months provided by the Statute expired on 25/4/96.
By commencing this action on 15/4/98 one year, eleven months and 15 days after the expiration of the period provided by the Act, the legal consequence is that the action is statute barred.
Counsel submitted that since by his brief Appellant is not contesting the legal status of he 1st Respondent as a Public Officer within the Public Officers Protection Act, and had sued the 2nd – 5th Respondents in their official capacities and having made it plain in the Writ and Statement of Claim that the 2nd – 5th Respondents are functionaries of the 1st Respondent and that the letter which forms the substratum of the cause of action was written by the 2nd Respondent on behalf of the other Respondents, the 2nd – 5th Respondents who are functionaries of the 1st Respondents are entitled to the immunity provided by the Public Officers Act. He cited numerous .authorities including:
SCC NIG LTD v. ELEMADU (2005) NWLR (Pt.923) 28 at 59. HORIZON FIBRES (NIG) PLC v. M.V. BACO LINER (2002) 8 NWLR (Pt.769) 466. OGUNMADE v. FADAYIRO (1970) 1 All NLR (PT. 2) 232 at 241.
AKHIWU v. THE PRINCIPAL LOTTERIES OFFICER MID-WESTERN STATE & ANOR (1972) 1 All NLR (Pt.1) 229 at 234.
IBRAHIM v. KADUNA STATE J.S.C. (1998) 14 NWLR (Pt.584) Pg. 1. ETC ETC.
The Appellant filed a reply brief to the Respondents’ brief in which he referred to and compared the submission of the Respondents concerning the definition of Public Officers and submitted that in the lower court they argued that the Public Officer is well defined in Section 277 (c) of the 1999 Constitution while in this court they submitted that the Public Officer’s definition is at large, and described it as inconsistency.
In the determination of this appeal, for clearity of purpose I shall reproduce paragraphs 1 – 4 of the Appellant’s Statement of Claim at the court below. It states thus:
“1. The Plaintiff as at the time of filing this Statement of Claim is unemployed. He is a Nigerian and was at the material time when the cause of action in this suit arose in Effurun, Delta State within the jurisdiction of this court a final year Higher National Diploma (H.N.D.) student in the Department of Engineering, Petroleum Training Institute (P.T.I.) registered thereat as No. M94/REG/1749.
2. The first Defendant is a statutory body which among other things offers coursers) of studies to students desiring to qualify as Petroleum Engineers, it is based in Effurun, Delta State of Nigeria within the jurisdiction of this Court.
3. The second, third, fourth Defendants are functionaries of the 1st Defendant holding the offices, as at the time of the accrual of the cause of action in this suit, of Registrar, Director of Studies, Principal/Chairman Academic Board P.T.I. respectively.
4. The 5th Defendant is the Council of the 1st Defendant. It directs and gives meaning to the policy/policies of the 1st Defendant as enunciated in the statute creating it for the implementation thereof by the 2nd, 3rd and 4th Defendants inclusively.”
It is also important to look at Section 2(a) of the much talked about Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990. Section 2(a) of the Act 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) the action, prosecution, or proceeding shall not be 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.”
The 1st Respondent is not only a statutory corporation established by the Petroleum Training Institute Act Cap. 356 Laws of the Federation, 1990 (by virtue of S. 315 of the 1999 Constitution) but also an educational institution established and financed principally by the Government of the Federation. It cannot therefore be rightly suggested that the 1st – 5th Respondents are not Public Officers within the Public Officers Protection Act. The Appellant by his own Statement of Claim acknowledged that the 2nd – 5th Respondents are functionaries of the 1st Respondent and that the letter which is the crux of this appeal was written by the 2nd Respondent on behalf of the other Respondents, it stands to reason that being Public Officers under the Public Officers Act, the immunity provided by the said Public Officers Act is available to them.
The reference by the Appellant to the Provisions of the Ports Act Cap. 361 and the NNPC Act Cap. 320 Laws of the Federation of Nigeria are in my humble view, irrelevant and unnecessary since a look at the provisions of those Acts show that they are not the same as the Petroleum Training Institute Act, it does not in any way help the case of the Appellant. The relevant laws in my view are the Petroleum Training Institute Act, the Public Officers Protection Act and the 1999 Constitution of the Federal Republic of Nigeria. They are very clear on this narrow
issue before this court, I therefore see no need for any extraneous Act.
See OGUNMADE V. FADAYIRO (1972) 1 All NLR (Pt. 2) 232 at 241.
The Appellant is not contesting the fact that the Respondents wrote him a letter to withdraw from the institute on the 22nd of January, 1996, and that he filed the action at the lower court on the 15th of April, 1998, about two years later. What he is saying is that the Respondents are not Public Officers, and therefore Section 2(a) of the Public Officers Protection Act is not available to them, also that the lower court ought not to have dismissed his Suit the way it did which according to him denied him fair hearing.
The facts of this case are similar to those in IBRAHIM V. KADUNA STATE JSC Supra. The Appellant here sued the Petroleum Training Institute Effurun and its functionaries over the letter asking him to withdraw from the Institute, the same way the Appellant in Ibrahim’s case sued the Kaduna State Judicial Service Committee over his retirement as an Area Court Judge. The Supreme Court in the Ibrahim’s case held that the Public Officers Protection Law applied and that because the Appellant filed his action outside the three months period that his case was statute barred.
It is settled law that where time for taking action in court are prescribed in a statute of limitation, the time so prescribed also dictate the time when the court shall have Jurisdiction to hear the case. In other words, even though courts are enjoined to do substantial Justice and avoid technicalities, it must be justice according to law. Once it comes to the issue of limitation of time, the courts are bound by the statute, if the statute provides that there shall be no jurisdiction if the time to institute an action is not adhered to, once a party strays outside that time, it automatically robbs the court of Jurisdiction. See OMOMEJI v. KOLAWOLE (2008) 14 NWLR (Pt.1106) P. 180. S.C.
The application to set down the point of law for hearing as in this case, is usually granted where, in the opinion of the court, the point of law is such that a decision on it will substantially dispose of the action. See LASISI FADARE v. ATTORNEY GENERAL OF OYO STATE (1982) 4 S.C.1 where the Supreme Court held that the procedure is designed to ensure that Suits that can be expeditiously dealt with and disposed of on grounds of law are not carried through a long and expensive trial. If the points of law raised thereby substantially dispose of the whole action, the Rules vests the trial court with the power to dismiss the action.
In the instant case, the Respondents applied that the point of law in issue be set down for hearing, and after hearing arguments, the lower court found that the application had merit, and struck out the Suit.
It is my humble view that the Appellant’s complaint that he was denied a fair hearing when the lower court utilized this procedure lacks merit.
I find that the 1st Respondent, Petroleum Training Institute Effurun, Delta State is a statutory corporation established by the Petroleum Training Institute Act, Cap 356 Laws of the Federation, 1990 (an existing Act of the National Assembly by virtue of Section 315 of the 1999 Constitution, and also established and financed by the Federal Government. I also find that the 2nd – 5th Respondents are functionaries of the 1st Respondent and that the letter asking the Appellant to withdraw from the Institution was written by the 2nd Respondent on behalf of the Respondents.
Since the 1st Respondent is a statutory corporation established and financed by the Federal Government, and having held that the 2nd – 5th Respondents are Public Officers, by filing his action in the lower court on the 15/4/98, One year, Eleven months and Fifteen days after he received the letter, he has regrettably strayed from the three months provided for by Section 2(a) of the Public Officers Protection Act for filing of an action of this nature, the action is therefore statute barred. The Respondents who are functionaries of the 1st Respondent having been labelled Public Officers and having acted within their statutory and constitutional duties are entitled to the immunity provided by the Public Officers Protection Act.
The sole issue for determination is resolved against the Appellant in favour of the Respondents. All the grounds of appeal fail.
Accordingly, the action being statute barred, the learned trial, Judge was right in dismissing the Suit.
I hereby dismiss this appeal and affirm the Ruling of the lower court.
I make no order as to costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I was privilege to read in advance the judgment just delivered by my learned brother Chioma Egondu Nwosu-Iheme J.C.A. My Lord had exhaustively considered the issue for determination and the legal authorities cited. I agree with him that the sole issue for determination is resolved against the Appellant in favour of Respondent. All the grounds of Appeal fail and therefore liable to be dismissed and it is hereby dismissed as the action is statute barred. I also order no cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, NWOSU-IHEME, J.C.A. I fully agree with it. I also agree that this appeal lacks merit and ought to be dismissed. I shall also not make any order for costs.
Appearances
A.J. OSHIOKPELUAFor Appellant
AND
T.E. UWHUBETINA and LUCKY OYIBOFor Respondent
