KALU v. GOVT OF ABIA STATE & ORS (2020)

KALU v. GOVT OF ABIA STATE & ORS

(2020)LCN/14277(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, June 19, 2020

CA/OW/337/2019

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

BARR. OKECHUKWU KALU APPELANT(S)

And

GOVERNMENT OF ABIA STATE 2. ABIA STATE CIVIL SERVICE COMISSION 3. ABIA STATE HEAD OF SERVICE 4. AUDITOR-GENERAL OF ABIA STATE 5. ATTORNEY-GENERAL OF ABIA STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE PUBLIC OFFICERS (PROTECTION) LAW IS DESIGNED TO PROTECT OFFICERS WHO ACT IN GOOD FAITH AND DOES NOT APPLY TO ACT DONE IN ABUSE OF OFFICE

The Section 2(a) of the Public Officers (Protection) Law, states:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or indented execution of any law, or any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:
(a) 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.”
The Appellate Courts have given clear interpretations to the above provisions law, to show where and when a Public Officer can benefit from the provisions. The Courts have also been rebuking unscrupulous public officers, who seek to employ the provisions of that law to cover their mischief and to promote fatal wrongs and injustice.
In the case of A.G. Rivers State Vs A.G. Bayelsa State (2013) ALL FWLR (Pt.699) 1087; (2012) LPELR – 9336 (SC), the Supreme Court, relying on Aremo II Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2132), had stated the limits of the Public Officers (Protection) Act, thus:
“The Act is intended as much as within the Limit of the law to protect a public officer from distraction and unnecessary litigation, but never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice… Where such allegation of continuing damage or injury has been raised, in such a situation, there is need to for the trial Court to take evidence before determining the point.”
In Nwankwere Vs Adewunmi (1966) 1 ALL NLR 129 at 133, the Supreme Court held:
“The law is designed to protect the officer who acts in good faith and does not apply to act done in abuse of office and with no semblance of legal justification.”
In Offoboche Vs Ogoja LG (2001) 7 SCNJ 468 at 483, the Supreme Court said:
“Abuse 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.”
In Lagos City Council Vs Ogunbiyi (1969) 1 ALL NLR 297 at 299, the Supreme Court held:
“… the Act necessarily will not apply if it is established that the defendant had abused his position for purpose of acting maliciously. In that case, he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavoring to carry it out. In such a state of facts, he has abused his position for the purpose of doing wrong and the protection of this Act, of course, never could apply to such a case.”
I believe it was by the strength of the above Supreme Court decisions, deprecating the abuse of Section 2(a) of the Public Officers (Protection) Law or Act, that this Court, in several Cases, have stated that the attempt by a Public Officer, who seeks the cover of the Public Officers Protection Law, after committing mischief, is akin to the public officer “throwing the punch of lack of jurisdiction” and using it as ”a cover or bunker for him to hide away from justice, or stay there to continue his mischief against the Plaintiff.” See Moyosore Vs Gov. of Kwara State & Ors (2011) LPELR – 8813 CA; (2012) 5 NWLR (Pt.1293) 242; University of Ibadan Vs Kwara State Govt (2012) LPELR – 14326 (CA); Agboroh Vs WAEC (2016) LPELR – 40974 (CA). PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the decision of National Industrial Court of Nigeria in Suit No. NICN/OW/108/2014, delivered on 21/1/2016 by Hon. Justice O.Y. Anuwe, wherein the Learned Trial Judge up held the preliminary objection by the Defendants, that the Suit was statute barred, and dismissed it. Appellant, being dissatisfied brought this Appeal.

At the Court below, Appellant as Claimant, had sought the following reliefs:
(1) A declaration that the Claimant’s employment with the Defendants has statutory flavor and that the employment was for 35 years of the Claimant’s service or until the Claimant reaches 60 years (whichever is earlier).
(2) A declaration that the Defendants’ Circular No. HAS/S.0074/11/91 of 1st August, 2011, which sought to cut short the Claimant’s employment is ultra vires, unlawful, null and void and of no effect, whatsoever.
(3) A declaration that the Federal Public Service, Circular No. HCSF/061/S.1/111/68 of August 26, 2009 applies to the Federal Public Service only; hence is neither binding nor has any effect whatsoever

on the Public Service of Abia State.
(4) A declaration that as at 1/1/2012, when the Claimant was purportedly retired by the Defendants, the Claimant had worked for only 22 years and 7 months of his service years thus remaining 12 years and 5 months of his service years.
(5) A declaration that the claimant is entitled to be paid his full salaries and allowances for the said remaining 17 years and 5 months of his service years computed on Salary Grade level 17 Step 9, as applicable to Law Directors in the Defendants’ Ministry of Justice, since the Claimant left the service at the instance of the Defendants, but not based on any disciplinary measure.
(6) A declaration that the Claimant is entitled to 100% computation of his Gratuity as Law Director on Salary Grade Level 17 Step 9, amounting to N7,307,182.43 (Seven Million, Three Hundred and Eighty Two Naira and Forty Three Kobo) only, instead of prorated calculation of same base on 22 years and 7 months he had worked, amounting to N4,714,872.43 (Four Million Seven Hundred and Fourteen Thousand, Eight Hundred and Seventy Two Naira, Forty Eight Kobo) only.
(7) A declaration that the

Claimant is also entitled to 100% computation of his Monthly Pension as Law Director on Salary Grade Level 17 step 9, amounting to N253,820.70.. per month, instead of the pro-rated calculation, based on 22 years and 7 months he had worked, amounting to N107,751.55… only.
(8) A declaration that the Claimant is entitled to be paid his severance allowance of 300% of his annual salary for the premature termination of his career and service years and for lose of expectation amounting to N13,053,636.00 (Thirteen Million Fifty Three Thousand, Six Hundred and Thirty Six Naira) only.
(9) A declaration that the tenure policy of the Defendants as directed and approved by the Governor of the 1st Defendant is nepotistic and aimed at displacing those in the Public Service of the State who comes (sic) from outside his community and replacing them with his kinsmen and women.
(10) A declaration that it is malicious, cruel, high-handed, outrageous, oppressive, flagrant, disregard of law and every principle of a civilized society for the Defendants to prematurely retire the Claimant with four months notice for no wrongful act or conduct of the Claimant,

regardless of the Claimant’s disability condition, which elicited the special waiver for his appointment into the Civil Service, and at the same time refuse to pay the Claimant his Severance Allowance, Gratuity, and to compute the Claimant’s retirement benefits (pension and gratuity) based only on the number of years the Claimant had worked.
(11) A declaration that the Claimant is entitled to the award of Special, Exemplary and Aggravated damages sequel to paragraph (8) above.
(12) An Order to pay the Claimant the Sum of N54,027,549 (Fifty-Four Million and Twenty-Seven Thousand, Five Hundred and Forty Nine Naira) only, being the Salaries and allowances of the Claimant for the remaining 12 years and 5 months of his remaining service years.
(13) An Order to pay the Claimant the Sum of N200,000,000.00 (Two Hundred Million Naira) only for loss of expectation of the Claimant in his chosen career, including the psychological torture which the Claimant has been subjected to as a result of the unlawful action of the Defendants.
(14) An Order to pay the Claimant the Sum of N7,307,182.43…, being 100% computation of his Gratuity

based on Salary Grade Level 17 step 9, as a Law Director.
(15) An Order to pay the Claimant the Sum N253, 820.70…, monthly as pensions, being 100% computation of his monthly pensions, based on 35 years of service and on salary Grade Level 17 step 9, as a Law Director, commencing from 1/1/2012 till date, less the Sum of N106,672.99…, only being the Claimant’s current monthly pension.
(16) An Order to pay the Claimant the Sum of N500,000 (Five Hundred Thousand Naira) only as Special damages and Exemplary and Aggravated damages of N10,000,000 (Ten Million Naira) only.
PARTICULARS OF SPECIAL DAMAGES
(a) Production and filing of Court processes = N200,000
(b) Transport to and from Court = N700,000.00
Total = N900,000.00
(17) An Order of perpetual injunction restraining the Defendants, their agents, privies, servants, workers etc from stopping, withholding, distorting or otherwise interfering with the payment of the Claimant’s Gratuity and Monthly Pension as Claimed and entitled to in this Suit.
ALTERNATIVELY
(18) (a) An Order to reinstate the Claimant to his former position as Law Director on

Salary Grade Level 17 Step 9, as at 1/1/2012 without prejudice to the Claimant’s seniority position in the Defendants’ Ministry of Justice as at that date; and
(b) An Order to pay the Claimant his full Salaries and Allowances from 1/1/2012 till the date of his reinstatement, less the amount of pensions paid to him as at date of such reinstatement.” (See Pages 8 to 11 of the Records of Appeal).

The Plaintiff filed his pleadings, and upon service of same on the Respondents (as Defendants), they filed their statement of defence, accompanied with a Notice of Preliminary Objection to the Suit, on the ground that the Suit was statute barred, pursuant to the provisions of Section 2(a) of the Public Officer’s Protection Act, 2004 (Section 2(a) of the Public Officer’s Protection Law of Abia State.

The trial Court heard the parties on the preliminary objection and ruled that the Suit of the Claimant was statute barred and dismissed the same. It held:
“Having considered the submission of Counsel on the preliminary objection and all the other facts relevant to the determination of the preliminary objection, I find

that the Claimant’s Suit is statute barred. The facts are clear that this Suit was filed more than 3 months from the date the cause of action arose. The action is no longer maintainable even as this Court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the Suit. With the finding that the Suit of the Claimant is statute barred, it is no longer necessary for the Court to go into the Claimant’s motion for interlocutory injunction, as this Court lacks jurisdiction to entertain this action in the first place. Delving further into other issues would therefore be academic. Accordingly, this Suit is hereby dismissed. I make no order as to cost.” (See page 186 of the Records of Appeal).

Peeved by the above decision, Appellant filed this Appeal, as per the Notice and grounds of Appeal filed on 5/7/2019, with the leave of this Court, obtained on 19/6/2019 (See pages 187 to 197 of the Records of Appeal).

Appellant filed his brief of arguments on 19/9/2019 and distilled five (5) Issues for the determination of the Appeal, as follows:
(1) Whether the refusal of the Respondents

to properly compute the retirement benefits of the Appellant, namely gratuity and monthly pension, amounted to continuance of damage or injury, thereby constituting an exception to the operation of the Public Officers (Protection) Act//Law in the instant case (Grounds 1, 5, 6 and 10)
(2) Whether the Public Officers (Protection) Act/Law protects a public officer who acted outside the colour of his office, in bad faith or beyond his powers. (Ground 9)
(3) Whether the Appellant was denied fair hearing by the failure of the lower Court to consider and make pronouncement on all the issues and defences duly raised and available to the Appellant. (Grounds 3, 4, 7, 8, 9 and 11)
(4) Whether a statute of limitation such as the Public Officers (Protection) Act/Law applies to a Government Policy Circular No. HAS/S.0074/11/91 of 1st August, 2011 and which was perpectually (sic) operational until repealed or suspended and which had not been repealed or suspended at the time of instituting this Suit. (Ground 2)
(5) Whether the Public Officers (Protection) Act/Law is discriminatory and unconstitutional for protecting a class of persons against another. (Ground 8)

The Respondents filed their Brief on 13/3/2020, which was deemed duly filed on 16/3/2020. They raised 4 Issues for the determination of the Appeal, as follows:
(1) “Whether the Learned Judge of the lower Court was right to have declined jurisdiction to hear the Suit on the ground that the Suit was statute barred against the Respondents.
(2) Whether in the circumstance, the learned Judge of the lower Court was to examine and determine the motive of the Respondents, whether they acted outside the colour of their office or in bad faith, before availing them the protection of the Public Officers (Protection) Law Cap 140, Laws of Abia State, 2005.
(3) Whether the Appellant was denied fair hearing by the lower Court in the determination of the preliminary objection filed by the Respondents
(4) Whether the Public Officers (Protection) Act/Law is discriminatory or impedes the Constitutional right of access to Court.”

When this case was heard on 4/6/2020, Appellant’s attention was drawn to the way he related the issues for the determination of the Appeal to the grounds of the Appeal. He answered that he did

the proper thing, though some of the grounds of appeal were repeated in the issues for determination. Appellant, indeed, did not relate or marry some of the grounds of Appeal to the Issues for determination, properly, as he repeated the grounds 8 and 9 in two separate issues, respectively, distilled for the determination of the Appeal.
Appellant had distilled the Issue 2 from ground 9, but also included the said ground 9 (together with grounds 3, 4, 7, 8 and 11) to formulate Issue 3 for the determination of the Appeal. He also used the ground 8, already included in the grounds that distilled Issue 3, to donate Issue 5 for the determination of the Appeal. That was a serious flaw that visited disabilities on those 2 Issues, which Appellant repeated the said grounds 8 and 9. Thus, the Issues 3 and 5 of the Appeal are vitiated for being proliferated.
I shall, however, save the issue 2, as Appellant had distilled same from ground 9. Of course, after having distilled that Issue from said ground 9, the ground was no longer available to donate any other Issue for the determination of the Appeal. The said Issues 3 and 5 are hereby struck out. See the case of

A.G. Imo State & Anor Vs Imo Rubber Estates Ltd & Ors (2019) LPELR – 47579 (CA), where it was said:
“Appellants, in particular, committed proliferation or multiplicity of the Issues, as they raised multiple issues for determination of the Appeal from same ground(s) of Appeal, and misled the other parties into that same error. They (Appellants) distilled their Issue one from grounds 2, 5 and 6 of the Appeal, and at the same time, distilled issue 2 from grounds 1, 3, 4 and 5; and Issue 3 from the same grounds 3, 5 and 6, while also using the same grounds 2 and 5 to distil Issue 4; and the same grounds 1, 5 and 6 (together with ground 9) to distill Issue 5. Thus, grounds 1, 2, 3, 4, 5 and 6 were split to generate different issues – 1, 2, 3, 4 and 5, resulting in unpardonable procedural/legal confusion, absurdities and impossibilities, when it comes to rules of argument of appeal…”
In the case of Onyerika Vs Uzoukwu (2016) LPELR – 40417 CA, this Court held:
“The position of the law is that an Appellant cannot split a Ground of Appeal into two or more Issues, such as have been done by

Appellant…The rule is that a number of grounds of Appeal may raise a single Issue for determination, but a single ground of appeal… which has been split between issues… amount to…proliferation of some kind, which the law abhors…”
See also Aduba & Ors Vs Aduba (2018) LPELR – 45756 (CA); Nwankwo & Ors Vs Yar’Adua & Ors (2010) LPELR – 2109 (SC); Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA); Ukpabi Vs Ukpabi & Ors (2019) LPELR – 48481 CA; Ogar & Anor Vs Ogar & Ors (2019) LPELR – 48977 CA and Amodu Vs The Commandant Police College, Maiduguri & Anor (2009) LPELR – 467 (SC); (2009) 15 NWLR (Pt.1163) 75.
This Appeal shall therefore be considered on the remaining Issue 1, 2 and 4, saved from the virus of proliferation.

Arguing the Issue 1, Appellant (who appeared in person) relied on the cases of Bamgboye Vs University of Ilorin (1999); (2010) NWLR (Pt.622) 290 and Olatunbosun Vs NSIER Council (1988) 3 NWLR (Pt.80) 25, as to the only situation a contract with statutory flavor can be terminated; that the same can only be

done by strict compliance with the provisions of the statute. Appellant said that in the computation of what was due to him, on retirement, the Respondents erred, and the wrong done to him was continuing. He relied on the case of A.G. Rivers State Vs A.G. Bayelsa State (2013) ALL FWLR (Pt.699) 1087 at 1106, where the Supreme Court, adopting the ratio in Aremo II Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2114, held:
“Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time as often as damage is caused.”

Appellant therefore argued that, in this case, the circumstances show that the Plaintiff’s action falls squarely within the exception to the Public Officers (Protection) Law, where the damage and injury against him is a continuing one; that the wrongful computation of retirement benefits by the Respondents has persisted till date, thereby giving rise to continuance of his injury or damage. He argued that it becomes clear that continued deprivation of the due allocation, every month to him, of his retirement benefits, due to the wrongful computation, following the premature retirement

constituted a continuing damage or injury to him. He relied again on Aremo II Vs Adekanye (supra), where the Supreme Court held:
“Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused…”

Appellant said that the Supreme Court has recognized that a deprivation of due monthly pension constitutes a continuing injury or damage. He relied on the ratio of Onnoghen JSC (as he then was) in the case of CBN Vs Amao (2011) ALL FWLR (Pt.558) 806 at 827, who said:
“The appellant pays monthly pensions to the respondents, less than what is provided in the white paper and the two circulars every month, thereby leaving part of their entitled monthly pension, unpaid. This clearly demonstrates the fact that the cause of action in the circumstance arises every month, when appellant pays less pension to the respondents than their full harmonized pensions… It is therefore very clear that there is

continuance of injury, the cessation of which cannot be determined other than as harmonized. There is therefore no way by which one can calculate the “three months next after the ceasing thereof…” It follows, therefore, that each month the respondents are paid pension, less than the harmonized pension, a cause of action arises, in respect of the balance or sum outstanding.”

In this case, at hand, Appellant said the necessary question and consideration is as to what he (Appellant) is entitled to, as his monthly pension. He complained that his pension should not be calculated, pro-rata, based on 22 years 7 months of service but 100%, based on his full service of 35 years (or age of 60) when he ought to retire from service, as his retirement was force on him, not on account of disciplinary measure, which retirement, he said, was ultra vires. He relied on Eze Vs Gov. of Abia State (2015) ALL FWLR (Pt.791) 1399, to say that he was entitled to full pension and gratuity, not pro-rated.

He argued that the mode of his disengagement from service was novel, uncontemplated and unenvisaged by the Civil Service Rules of old Imo State 1979,

and the Pensions Act, which were in operation at the time of his employment in 1989; he said that the position remained, even under the current Public Service Rules of Abia State, 2005 (though not applicable to his case). He argued that the public service enjoys certainty of tenure, sequel to statutory flavor. He relied on the case Comptroller General of Customs Vs Comptroller Abdullahi B. Gusau (2017) LPELR – 42081 SC, where it was held:
“The main object and intention of the Constitution in vesting in the Federal Civil Service Commission the power not only to appoint persons to offices in the Federal Civil Service but also to make rules regarding the manner they retire or the manner they are compulsorily retired, therefrom, are clear. They are to engender in the civil servants security of tenure which they psychologically need for patriotic and honest discharge of their duties. Where the main object and intention of a statute are clear, the Court in its interpretative power, must give effect to the main object and intention.” Per Eko JSC

Appellant said that he was retired by the Respondent. Not because of any disciplinary action;

that the least that can be paid to him is full retirement entitlements, otherwise his premature retirement becomes, punitive; he said that that is a continuing injury, to be determined in the Suit, and that the Public Officers (Protection) Law cannot be applied to shut him out; that the lower Court ought to hear him, to determine whether his employment, in the peculiar circumstances, was properly determined, and his benefits properly calculated as the damage and injury was continuing.

On Issue 2, whether the Public Officers (Protection) Act/Law protects a public officer, who acts outside the colour of his office, in bad faith, or beyond his powers, Counsel answered in the negative. He relied, again, on the case of Comptroller General of Customs Vs Comptroller Abdullahi B. Gusau (supra). Counsel said that the Circular No. HSA/S.0074/11/91 of 1/8/2011, assuming (but not conceding) it was made by the 2nd Respondent, that it (2nd Respondent) had no power to do so, because it could not:
(a) Negatively, affect and alter the already vested rights of the Appellant, under his existing contract of employment which was conclusive, certain and binding;

(b) Retroactively, introduce new terms to the contract, unilaterally in the 22 years 7 months of his service, without any justifiable cause.

Appellant also argued that the policy was not even applicable to the Abia State Service. He relied on the case of University of Ilroin Vs Adeniran (2006) LPELR – 11801 CA; Macfoy Vs UAC Ltd (1962) AC 152; University of Ibadan Vs Govt., of Kwara State (2012) LPELR – 14326 CA; Moyosore Vs Gov. of Kwara State & Ors (2011) LPELR – 8813 CA, to say that the circular was illegal and ultra vires, and so the act of the Respondents did not enjoy any protection. Appellant, found his argument on the ratio in Moyosore Vs Gov. of Kwara State (supra) where this Court held:
“… Care must be taken by the Court… to refuse any ploy by the Defendant to short change the Plaintiff and deny his access to redress, on frivolous challenge of jurisdiction. Thus, the defendant’s penchant to throwing the punch of lack of jurisdiction, should not be allowed to provide a cover or bunker for him to hide away from justice, or stay there to continue his mischief against the claimant… Even if the

defence of limitation of time were to apply in such a case, can the Respondent invoke such provision – Public Officers Protection Act, to deny the Appellant a hearing, and take the land, in the face of such damaging accusation of bad faith and abuse of office, which are yet to be determined? To answer such question in the affirmative, would be to use the legal process to enthrone illegality, absurdity and impunity.” (Per Mbaba JCA)

Appellant relied on the case of Nwankwere Vs Adewunmi (1966) 1 ALL NLR 129, to say that the Public Officers (Protection) Law was designed to protect an officer who acts lawfully, and in good faith. See also Offoboche Vs Ogoja LGA (2001) 7 SCNJ 468; Lagos City Council Vs Ogunbiyi (1969) 1 ALL NLR 297; Egbe Vs Alhaji (1989) 1 NWLR (Pt.128) 546; Eronini Vs Iheuko (1989) 2 NWLR (Pt.101) 46.

On Issue 4, whether a statue of limitation, such as the Public Officers (Protection) Act/Law, applies to a Government Policy such as the Respondents’ Circular No. HAS/S.0074/11/91 of 1/8/2011, Appellant answered in the negative. He said the Circular was not an enactment and was not made by the 2nd Respondent; that the

circular needed to be challenged, in view of the existing rights of the Appellant. He added that the Circular was not, and cannot be subject matter of any limitation law, especially as it was ultra vires, unlawful, null and void.

Appellant urged us to resolve the Issues for him, and allow the Appeal and order the trial Court to take evidence in the Suit and to hear it on the merits.

Learned Counsel for Respondents, P.U. Ogubunka, Esq, D.C.L, Abia State, on the Issue 1, said the trial Court was right to dismiss the Suit for being statute barred, via the preliminary objection; he said that the cause of action was the compulsory retirement of the Appellant, which came to effect on 1/1/2012; that Appellant’s cause of action accrued on that date, but he filed the Suit on 1/12/2014. Thus, the lower Court had no difficulty arriving at the conclusion, that the period of bringing the Suit – 1/12/2014 – was outside the three (3) months, prescribed by the Public Officers (Protection) Law of Abia State (or Public Officers (Protection) Act, relied on by the Respondents.

Counsel said the cases of A.G. Rivers State and A.G. Bayelsa State

(supra) as well as CBN Vs Amao (supra) relied upon by Appellant did not apply to this case, because the Issues relating to the continuing damages/injury, per the calculation of the monthly pension, was not the main relief sought by Appellant. He relied on Adeogun Vs Ekunrin (2004) 2 NWLR (Pt.856)52. He said that the main claim was the retirement of Appellant, not the consequences of the retirement. He relied on Obi-Akejule Vs Delta State Government (2009) 17 NWLR (Pt.1170) 292 at 308.

Counsel said it has been decided, in a long line of cases, that even where ancillary or incidental or necessary claims are inextricably tied to or bound up with the main claim, a Court cannot adjudicate over them, where it has no jurisdiction to entertain the main claim(s). He relied on Gafar Vs Govt of Kwara State (2007) 4 NWLR (Pt.1024) 375 at 398 – 399; Tukur Vs Govt of Gongola State (1984) 4 NWLR (Pt.117); he said that ancillary or incidental relief means a relief which aids or is attendant upon another relief. He relied on NDIC Vs Savannah Bank Plc (2003) 1 NWLR (pt.801) 311 at 422. He asserted that Reliefs 5, 6, 7 and 8 of the Appellant are attendant upon reliefs

1, 2, 3 and 4 of the claim; that where the Court lacks jurisdiction to entertain the main claims, hoisted on Appellant’s compulsory retirement from service, which are statute barred, the Court cannot adjudicate on the ancillary reliefs, grounded on computation of retirement benefits. He relied on Nwaogwugwu Vs President F.R.N. (2007) 6 NWLR (Pt.1030) 237 at 275; Gafar Vs Govt of Kwara State (supra) at 406 – 407.

On Issue 2, Counsel answered to say that the Respondents did not act outside the colour of their office and did not act in bad faith or beyond their powers. He added that the crucial question was whether a proper interpretation of Section 2(a) of the Public Officers (Protection) Act, admits of or permits an allegation of bad faith, where the defence of limitation of action under the Public Officers (Protection) Act, is raised, in limine. He answered the poser in the negative and reproduced the provision of Section 2(a) of the Public Officers (Protection) Act, and said that, giving the provision their plain or ordinary meaning (as enjoined by rules of interpretation of statute), the law leaves no room for any inference of bad faith by a

Public Officer who acts; that any Suit, not brought within the 3 months stipulated, is extinguished by law. He relied on Ibrahim Vs JSC, Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 34; Rabiu Vs State (1982) 2 NCLR 117; Egbe Vs Adefarasin (1985) 1 NWLR (Pt.3) 549.

He argued that the decisions in Nwankwere Vs Adewunmi (supra); University of Ibadan Vs Kwara State Govt (2012) LPELR – 14326 CA and Moyosore Vs Gov. of Kwara State (2011) LPELR – 8813 CA, did not avail the Appellant, as the bad faith in each of the above cases, related to allegations of crimes or acts done outside the purview of the statutory duties of the said Public Officers.

On Issue that the Public Officers (Protection) law would not apply to the Circular No. HAS/ S.0074/11/91 of 1/8/11, Counsel answered that it would. He said that it is not in dispute that the Respondents are public officers and that the Circular, No. HAS/S.0074/11/91 of 1/8/2011, was written by the 3rd Respondent, in the course of his official duties; that bad faith or malice is therefore irrelevant for the purpose of their protection under the Public Officers Protection Act or Law; that the preliminary

objection was not to examine whether or not Respondents acted in bad faith or outside the colour of their office.

Appellant had filed a Reply Brief, but I think the issues raised in the Reply Brief amounted to a rehash of his arguments in the main Brief, to improve upon it. That is not what a Reply Brief is for, as a Reply Brief is meant to rebut new points of law, raised by the Respondent in his brief, so as to properly guide the Appellant Court. See Aduba & Ors Vs Aduba (2018) LPELR – 45756 (CA); Eco Bank Plc Vs Honey Well Mills Plc (2018) LPELR – 45124 (SC); Mathew Vs State (2019) LPELR – 46930 (SC).

RESOLUTION OF ISSUES
I think the real Issue for the determination of this Appeal is one – whether the trial Court was right to dismiss Appellant’s Case, on the strength of the preliminary objection, that the Suit was statute barred, notwithstanding the claim that damage and injury on the Appellant was continuing, pursuant to the wrongful calculation of his purported retirement benefits; and the fact that the Circular No. HAS/S.0074/11/91 of 1/8/2011, upon which his retirement was based, was unlawful, null and void.

Reliefs 5, 6, 7 and 8 of the Appellant (earlier reproduced in this judgment) had asserted that the Respondents had wrongly calculated his retirement benefits, pro-rata, based on the 22 years and 7 months service he put in, instead of the 100% he was entitled to, if he had put in 35 years of service (or had retirement, upon reaching 60 years of age); that since the retirement was imposed on him and was not based on any disciplinary measure, he was entitled to full benefits. He also argued that the Respondents had no vires to issue the Circular and to retire him compulsory, based on the said Circular No. HSA/S.0074/11/91 of 1/8/2011; that the said Circular was ultra vires, unlawful, null and void and of no effect, whatsoever. That second argument was the purport of Reliefs 2, 3 and 4 of the Appellant’s Case.

In Paragraph 12 of the Statement of claim, Appellant had pleaded that his employment had statutory flavor, being regulated by the Public Service Rules, which spelt out the conditions of service, disciplinary procedures and or retirement of Appellant. He also pleaded in paragraphs 17 to 20 of the Statement of claim and alleged that, the

Respondents, after he had served for 22 years and 7 months, suddenly purported to retire him, forcefully, based on a Circular which had no bearing to his contract of employment; that the Circular was ultra vires, unlawful, null and void, as the Respondent had no power to retire him based on the said Circular, and/or were acting in bad faith, by retiring him.

I think the above had, clearly, set out the real issues for the trial Court to determine in the case, especially as the Respondents had joined issues with the Appellant on the said paragraphs 12, 17 to 20 of the Statement of claim. In paragraph 4 of Respondents’ pleading, they denied the facts in paragraph 12 of the appointment of the Appellant, saying the same was not absolute, though they admitted the 35 years of service or 60 years of age (whichever comes earlier). They also admitted the Public Service Rules of the old Imo State, 1979, and the new Rules of Abia State 2001 as the document governing the contract. Respondents admitted the Paragraph 17 and denied paragraphs 18 – 19, to the extent of the effect or implication of the Circular No. HSA/S.0074/11/91 of 1/8/2011. They also

admitted that the contractual relationship between Appellant and Respondents was governed by the letter of offer of appointment, dated 6/6/1989, issued to Appellant and the same was made subject to the condition of service, as stipulated by government, including the said Circular No. HSA/S.0074/11/91, of 1/8/2011.

I think, having clearly joined issues with Appellant on the said paragraphs, the natural and proper thing would have been to hear the parties on the issues, by taking evidence and examining witnesses to establish, whether or not the Circular No. HSA/S.0074/11/91 of 1/8/2011 was lawful and proper to truncate Appellants appointment, and forcefully retire him, and whether the 3rd Respondent had the vires to issue and act on the said Circular against the Appellant, and if the Respondents were right, whether the calculation of the Appellant’s retirement benefits did not inflict damages and injuries on him, continually, up till date. At this stage, one cannot delve into the merits of those pleadings. But the preliminary objection, therefore, came prematurely to abort the case and deny the Appellant opportunity to prove his claims, while, at the

same time, giving the Respondents undue advantage to overreach and short change the Appellant, without hearing him. After boasting in their (Respondents) pleading, that they will meet Appellant in Court, and challenged him to prove his case, they (Respondents) resorted to mischief of ambushing or self help, in my opinion, by introducing the Section 2(a) of the Public Officers (Protection) Law, to abort the trial and using the Court to truncate the case, and in doing so, dismissed the Suit (not even striking it out, as it should be, if the Court could not hear the case on the merits!)
That was a condemnable ambush by the Respondents, in my opinion, going by the usual exceptions, which the Courts have always upheld, to check or discourage blind application of the Section 2(a) of the Public Officers (Protection) Law or Act).
The Section 2(a) of the Public Officers (Protection) Law, states:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or indented execution of any law, or any Public duty or authority, or in respect of any alleged neglect or default in the

execution of any such law, duty or authority, the following provisions shall have effect:
(a) 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.”
The Appellate Courts have given clear interpretations to the above provisions law, to show where and when a Public Officer can benefit from the provisions. The Courts have also been rebuking unscrupulous public officers, who seek to employ the provisions of that law to cover their mischief and to promote fatal wrongs and injustice.
In the case of A.G. Rivers State Vs A.G. Bayelsa State (2013) ALL FWLR (Pt.699) 1087; (2012) LPELR – 9336 (SC), the Supreme Court, relying on Aremo II Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2132), had stated the limits of the Public Officers (Protection) Act, thus:
“The Act is intended as much as within the Limit of the law to protect a public officer from distraction and unnecessary litigation, but never intended to deprive a

party of legal capacity to ventilate his grievance on the face of stark injustice… Where such allegation of continuing damage or injury has been raised, in such a situation, there is need to for the trial Court to take evidence before determining the point.”
In Nwankwere Vs Adewunmi (1966) 1 ALL NLR 129 at 133, the Supreme Court held:
“The law is designed to protect the officer who acts in good faith and does not apply to act done in abuse of office and with no semblance of legal justification.”
In Offoboche Vs Ogoja LG (2001) 7 SCNJ 468 at 483, the Supreme Court said:
“Abuse 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.”
In Lagos City Council Vs Ogunbiyi (1969) 1 ALL NLR 297 at 299, the Supreme Court held:
“… the Act necessarily will not apply if it is established that the defendant had abused

his position for purpose of acting maliciously. In that case, he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavoring to carry it out. In such a state of facts, he has abused his position for the purpose of doing wrong and the protection of this Act, of course, never could apply to such a case.”
I believe it was by the strength of the above Supreme Court decisions, deprecating the abuse of Section 2(a) of the Public Officers (Protection) Law or Act, that this Court, in several Cases, have stated that the attempt by a Public Officer, who seeks the cover of the Public Officers Protection Law, after committing mischief, is akin to the public officer “throwing the punch of lack of jurisdiction” and using it as ”a cover or bunker for him to hide away from justice, or stay there to continue his mischief against the Plaintiff.” See Moyosore Vs Gov. of Kwara State & Ors (2011) LPELR – 8813 CA; (2012) 5 NWLR (Pt.1293) 242; University of Ibadan Vs Kwara State Govt (2012) LPELR – 14326 (CA); Agboroh Vs WAEC (2016) LPELR – 40974 (CA).
And, in the

recent case of NDLEA and Ors Vs Owerebulam (2020) LPELR – 49556 (CA), this Court had opportunity to consider a similar situation posed in this Appeal, where the Plaintiff had alleged unlawful acts and abuse of office by defendants, but the Defendants ran to the cover of the Public Officers Protection Act, to abort the trial. We held, as follows:
“I think it has to be resolved, first, whether or not, in fact, the 2nd to 7th Appellants, while in the course of exercise of their duties, unlawfully wounded, unlawfully assaulted and illegally detained the Plaintiff and violated his fundamental rights, before it can be determined whether they can take the benefit, of the Section 2 of the Public Officers Protection Act… In interpreting the above law, the Court is always consistent that “such an officer who acted within the confines of his duties, cannot be sued outside the limitation period of three months.” CBN & Anor. Vs Michael (2018) LPELR – 44251 (CA); Ibrahim Vs Judicial Service Commission Kaduna State (1998) 14 NWLR (Pt.584) 1; Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547. In the case of Sule & Ors Vs Orisajimi

(2019) LPELR – 47039 (SC), it was held that the Public Officers Protection Act was meant to protect officers who act in good faith, and my Lord, Bage JSC, said “On the issue of Section 2(a) of the Public Officers Protection Act, I am in agreement with the Court below. The law is now settled that, that Section 2(a) of the Public Officers Protection Act had been enunciated by the Supreme Court in the case of Nwankwere Vs Adewunmi (supra)… 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.”
As I earlier stated, in this judgment, the parties had joined issues on the allegation that the Respondents acted ultra vires, or were unlawful, when relying on the Circular No. HSA/S.0074/11/91 of 1/8/2011, to retire him, forcefully; that 3rd Respondent had no power to issue it (the Circular) and that the retirement benefits of Appellant was wrongly calculated, causing him continued damage and injury, monthly and up to date. I think those issues should have been resolved by taking evidence and considering the Suit, on the merits, before determining

whether or not the Respondents could benefit from the Public Officers (Protection) Law. The trial Court, therefore, jumped the gun, in my opinion, and even erroneously dismissed the Appellant’s Case, when the same was not even heard!

On when an act is said to be a continuing act, causing continuous damage or injury, the Supreme Court in the case of A.G. Rivers State Vs A.G. Bayelsa State (2012) LPELR – 9336 SC, said:
“… Where such allegation of continuing damage or injury has been raised, in such a situation, there is need for the trial Court to take evidence before determining the point.”
This is because, where there is a continuance of the damage or injury, the cause of action revives, from time to time, as long as the injury or damage occurs. See A.G. Rivers State Vs A.G. Bayelsa State (supra).

I therefore see merit in this appeal, as I resolve the Issue for the Appellant, and allow the Appeal. The decision of the Lower Court is hereby set aside, and I order that the case proceeds to trial, on the merits, but to be heard by another Judge in the jurisdiction, order than his Lordship, O.Y. Anuwe J.

The Respondents shall pay the cost of this Appeal, assessed at N100,000.00 (One Hundred Thousand Naira) only, to the Appellant.

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

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in draft the judgment just delivered by my brother HON. JUSTICE ITA GEORGE MBABA, JCA, I cannot agree more with him that this appeal is meritorious. I therefore allow same and abide by the orders as to cost.

Appearances:

In person For Appellant(s)

P.U. OGUBUNKA ESQ (D.C.L – ABIA STATE), with him M.U. AMOS (SSC) and O.J. ASONYE (SSC). For Respondent(s)