KEMDIRIM v. UNIPORT (2022)

KEMDIRIM v. UNIPORT

(2022)LCN/16996(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, March 02, 2022

CA/PH/424/2016

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. PROTUS O. KEMDIRIM APPELANT(S)

And

UNIVERSITY OF PORT HARCOURT RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE A DEFENCE UNDER THE PUBLIC OFFICERS PROTECTION ACT IS RAISED

That the law is settled, whenever a defence under the Public Officers Protection Act is raised, the duty of the presiding Judge is to check the date the cause of action accrued and when the suit was filed, to come up with a decision. The Court was referred to Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47)1; INEC Vs Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167; Ibrahim Vs Lawal & Ors LPELR 24736 and Forestry Research Institute of Nigeria Vs Gold (2007) 11 NWLR (Pt. 1044) 1 SC. PER HASSAN, J.C.A.

THE POSITION OF LAW WHERE ANY ACTION, PROSECUTION OR PROCEEDINGS 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

By virtue of Section 2(a) of the Public Officers Protection Act, LFN 2004, where any action, prosecution or proceedings 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 failure in the execution of any such Act, law, duty or authority, the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, within three months next after the ceasing thereof.
For emphasis Section 2(a) of the Public Officers Protection Act state:
“The action, prosecution 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 ceasing thereof.”
To determine whether an action is statute barred, the Court looks at the plaintiff’s writ of summons and statement of claim alleging when the wrong was committed by the defendant. In other words, when the cause of action accrued and when the writ of summons was filed in Court. If the date of filing is beyond that permitted by the statute then the action is statute barred. See Egbe Vs Adefarasin (1987)1 NWLR (Pt. 74)1.
The exception, is where there has been a continuance of damage or injury, a fresh cause of action arises from time to time and as often as the damage or injury is caused – Aremo II Vs Adekanye (2004) 13 NWLR (Pt.891) 572 SC and Nweke Vs Unizik; Awka (2017) 18 NWLR (Pt. 1598) 454.
It is to be noted that the appellant conceded that Section 2(a) of the Public Officers Protection Act would affect a suit against a public officer brought outside three months next to the cause of action, but it is not without exception, and that the act of the respondent constitute continuing damage and injury and the suit was not caught up by the limitation law. PER HASSAN, J.C.A.

THE POSITION OF LAW WHERE A STATUTE PROVIDES ON THE INSTITUTION OF AN ACTION WITHIN A PRESCRIBED TIME

Where a statute provides on the institution of an action within a prescribed time, the time so prescribed also dictates the time when the Court shall have jurisdiction over the said action. Thus, even though Courts are enjoined to do substantial justice and eschew technicalities, when it comes to the issue of limitation of time a Court is bound by what the statute stipulates. See Ajayi vs. Military Administrator of Ondo State (1997) 5 NWLR (pt. 504) 237.
Therefore any action that is instituted after the stipulated period by the statute is barred as the right of the plaintiff or injured person, to commence the action would have been extinguished by law. See Ibrahim vs. JSC (1998) 14 NWLR (pt. 584) 1; Obiefuna vs. Okoye (1961) 1 ANLR 357; Egbe vs. Adefarasin (supra); Awolola vs. Ekiti State (2019) 6 NWLR (pt. 1668) 247 and Uniport vs. John (2020) 10 NWLR (pt. 173) 106). PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Appellant as Claimant at the National Industrial Court, Nigeria Yenagoa Judicial Division instituted an action by way of Complaint against the respondent as defendant therein claiming as follows:
1. A Declaration that the purported compulsory retirement of the claimant from the employment of the defendant is ultra vires, unlawful, null and void, for want of fair hearing and/or non compliance with the procedure laid down in the University of Port Harcourt Act, Cap. U13 LFN 2004 and the Constitution of Nigeria, 1999 (as amended).
2. An Order reinstating the claimant back to his office in the defendant with all his rights and privileges attached thereto and without loss of all due/accrued benefits and or promotions with effect from the suspension date of 25/6/2009 which is retroactive and effective date of the purported compulsory retirement conveyed by the defendant’s letter of 8/10/2010.

In response to the complaint, the defendant/respondent filed a memorandum of appearance and a notice of preliminary objection both on the 18th of September, 2014.

The preliminary objection sought for an order of the trial Court to strike out the suit for want of jurisdiction on the ground that the suit is statute barred. After the submissions of counsel on the preliminary objection raised, the trial Court in a considered Judgment/ruling dated the 5th of October, 2015 upheld the preliminary objection and dismissed the case.

Aggrieved by the decision of the lower Court, the appellant appealed to this Court. The Notice of Appeal was dated the 17th day of December, 2015. It is anchored on a sole ground of appeal with its particulars and reliefs sought.

The appellant’s brief dated 20th September, 2016 was filed on the 22nd of September, 2016. Learned counsel for the appellant S.K. Asuru Esq. distilled a sole issue for determination of the appeal which reads:
“Whether in view of the facts of this case and the relief against the respondent for denial of fair hearing, the Honourable Trial Judge was right when he held that the suit filed by the appellant was statute barred?

The appellant’s reply brief dated 16th November, 2016 was filed on the 24th of November, 2016 but deemed properly

filed on the 18th of October, 2018. Learned counsel for the Appellant adopted the brief and the reply brief. He urged the Court to allow the appeal and set aside the judgment of the Court below.

The respondent’s brief settled by N.E. Chukwu was dated 3rd November, 2016 and filed on the 4th of November, 2016 but deemed properly filed on the 18th of October, 2018. In it a sole issue was identified for determination thus:
“Whether the Appellant’s suit filed outside the 3 months period as prescribed by Section 2 (a) of the Public Officers Protection Act LFN 2016 against the Respondent, is statute barred.”

Learned counsel for the respondent adopted the brief and urged the Court to dismiss the appeal and affirm the Judgment of the trial Court.

I adopt the respondent’s sole issue with modification to read;
“Whether the Appellant’s suit filed outside the 3 months period as prescribed by Section 2 (a) of the Public Officers Protection Act LFN 2004 against the Respondent, is statute barred.”

Arguing on this issue, learned counsel for the appellant in conceding that Section 2(a) of the Public Officers Protection Act would affect suit against a public officer, brought outside three months next to the cause of action, it is submitted that the Public Officers Protection Act is not without exception. That for Section 2(a) of the Public Officers Act, the public officer must have acted within the confines of his lawful or statutory duties. He must not have acted maliciously or flagrantly violated the fundamental right of anybody. The Court was referred to the provisions of Section 2(a) of the Public Officers Protection Act, CAP P41, Laws of the Federation, 2004 which provides
“The action, prosecution 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 ceasing thereof.”

Learned counsel submitted that, from the above wordings of Section 2(a), the continuance of injury is an exception to the application of the provision. Counsel referred to paragraphs 51-54 of the claimant\appellant’s statement of facts, to submit that the paragraphs smack of serious allegation of violation of the constitutional right of the appellant to fair hearing, besides depicting continuation of injury and damages when read along with the averments in paragraphs 47 and 50 thereof on denial of salary and benefits to the appellant. That continuation of injury or damage being an exception to the application of Section 2(a) of the Public Officers Protection law, the trial Court was wrong in upholding the preliminary objection without taking evidence. He relied on the case of A – G Rivers State Vs A-G Bayelsa State (2012) 7 KLR (Pt. 316) 2519 at 2533. He said the relief sought by the appellant from the lower Court, clearly shows that it is anchored on denial of the appellant’s constitutionally guaranteed right to fair hearing.

Counsel referred to Section 1 of the Constitution of Nigeria as the grund norm which supersedes the provisions of any other Act or statute. That for its supremacy, its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. He relied on this submission in the cases of Nigeria Army Vs Yakubu (2013) 8 NWLR (Pt.1355) 1387; and Kayili Vs Yilbuk (2015) 7 NWLR (Pt. 1457) 26 at 55-56 paragraphs H – A and Section 36 of the 1999 Constitution (as amended). He referred to paragraphs 7 -10, 22, 26 – 29, 35, 37- 39, 41 – 42, 44 – 45, 51 and 53 of the statement of facts of the claimant/appellant disclosing envy/jealousy, collusion, malice, hatred and denial of fair hearing and letter of 31/3/2016 which re-echoed the fact. It is the submission of the counsel that the facts were not in any form controverted, except that the respondent took as a shield the provisions of the Public Officers Protection Act to truncate the Court’s hearing of the parties on merit.

Learned counsel referred to Section 16 of the University of Port Harcourt Act, Cap. U13 LFN, 2004; El-Rufai Vs Senate of the National Assembly (2016) 1 NWLR (Pt. 1494) 504 at 510; Mohammed Vs A.B.U. Zaria (2014) 7 NWLR page 500 at 536 paragraphs D – F and Onofowokan Vs Wema Bank PLC (2011) 5 – 7 MJSC (Pt. 11) 1 at 19 – 21 paragraph G – C, to submit that failure of the respondent to file a defence at the lower Court constitutes demurrer, the legal implication of which is an admission of facts averred in the statement of facts by the appellant. The Court was referred to An Almanac of Contemporary Judicial Restatements by 1A1 Oshitokunbo Oshiasanya Vol. I pages 309 – 311 particularly paragraph 918.

Relying on Mohammed Vs A.B.U. Zaria (supra), it is submitted that the admitted fact being denial of fair hearing has defeated the application of the provision of Section 2(a) of the Public Officers Protection Act, 2004 and obviates the need for evidence in proof of the allegation. Also referred are Offoboche Vs Ogoja LG (2001) 16 NWLR (Pt. 739); Nwankwere Vs Adewunmi (1966)1 SCNLR 356 and Lagos City Council Vs Ogunbiyi (1969) 2 SCNLR 39.

Counsel submitted further that limitation law does not apply where a party prevented the other from bringing an action or denied him the opportunity to sue timeously. That from the unchallenged facts of this case, the respondent was guilty of delay in hearing the appeal against the suspension and compulsory retirement of the appellant. The Court was referred to paragraphs 40, 41, 43, 44, 46, 48 and 49 of the claimant/appellant’s statement of fact and Section 16 of the University of Port Harcourt Act. It is submitted that the delay in hearing the allegation against the appellant including the appeal timeously constitutes conscious effort by the respondent to prevent the appellant from bringing his action within time. He referred to Nigerian Army Vs Yakubu (supra) at page 17 paragraphs F – H; Admin/Exes, Estate, Abacha Vs Eke Spiff (2009) 7 NWLR (Pt. 1139) 97 at 109- 110.

It is also the submission of the appellant’s counsel that the Senior Staff Disciplinary Committee of the respondent is a quasi Judicial body constituted to investigate the allegations against the appellant and so is the appeals committee and they are therefore bound to observe the Constitutional provision of fair hearing under Section 36 of the 1999 Constitution of Nigeria and Section 16 of the University of Port Harcourt Act. He relied on this submission on the case of Mohammed Vs A.B.U. Zaria (supra) and Garba Vs University of Maiduguri (1986) 1 NWLR (Pt. 85) 550, to submit that the respondent did not meet the requirement in handling the case of the appellant.

It is finally submitted that the preliminary objection anchored on Section 2 (a) of the Public Officers Protection Act is an issue of technicality sought to defeat a constitutional right and defeat the doing of substantial justice. That Court is enjoined to eschew technicality in the interest of Justice. Dangote General Textile Product Ltd Vs Hassan Assurance Nig. Ltd (2013) 16 NWLR 9Pt.1379); and Registered Trustees of A.O.N. Vs N.A.M.A (2014) 7 NWLR (Pt. 1401) 1 at 9 were referred to. The Court is urged to resolve in favour of the appellant.

For his part, learned counsel for the respondent referred to Section 2(a) of the Public Officers Protection Act Cap 41, Laws of the Federation, to submit that for the protection to be available for a party claiming under it, it must be shown that such a party is a public officer or authority. That the act complained of in respect of which the action commenced must be done in pursuance or execution of any public duty or authority. The Court was referred to Morgan Vs Palmer (1824) 2 B&C 729 and Ibrahim Vs Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 SC and Fajimolu Vs. Unilorin (2007) 2 NWLR (Pt. 1017) 74.

It is the submission of the respondent’s counsel, that it is not in doubt the respondent is a public authority created by the University of Port Harcourt Act, Cap. U13, LFN, 2004. That the Public Officers Protection Act operates in Nigeria to protect both the institution and the officers. He referred to Ibrahim Vs. Judicial Services Committee Kaduna State (Supra), to submit that the Public Officers Protection Act covers and avails the respondent in this appeal. He said the acts complained of, by the appellant are within the scope and power of the respondent, by virtue of Section 16 of the University of Port Harcourt Act, which section gives the respondent the power to discipline any member of its staff and that discipline extends to suspension and dismissal.

That the law is settled, whenever a defence under the Public Officers Protection Act is raised, the duty of the presiding Judge is to check the date the cause of action accrued and when the suit was filed, to come up with a decision. The Court was referred to Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47)1; INEC Vs Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167; Ibrahim Vs Lawal & Ors LPELR 24736 and Forestry Research Institute of Nigeria Vs Gold (2007) 11 NWLR (Pt. 1044) 1 SC.
The contention of the respondent’s counsel is that, the appellant’s attempt to invite this Court to conduct an investigation into the case by calling evidence is not the position of the law. He referred to Chigbu Vs Tonimas (Nig.) Ltd (2006) 4 SC where the Supreme Court held that the propriety or otherwise of the act of the defendant is not a relevant consideration for the applicability of the Public Officers Protection Act. The Court went further to hold that if an action against a Public Officer or Public Institution or organization is statute barred having not been brought within the prescribed period of three months, there will be no basis for investigation on the conduct of the Public Officer which gave rise to the action. The case of Egbe Vs Alhaji (1990) 1 NWLR (Pt. 128) 546 was referred to.

Referring to page 18 of the record of appeal, learned counsel said, the appellant was placed on suspension by the respondent vide a letter dated 25/6/2002. That the appellant’s employment was further terminated by the respondent vide a letter dated 8th October, 2010. The Appellant’s suit at the lower Court was filed on the 27th of June, 2014 which is about 3 Years, 8 months after the letter of termination was issued on the 8th of October, 2010. Learned counsel, submitted that by Section 2(a) of the Public Officers Protection Act, the appellant’s suit is clearly statute barred having been filed outside the three months period prescribed by that law. That legal right to enforce an action is not a perpetual right but a right limited by statute. He referred to Nwaogwugwu Vs President Federal Republic of Nigeria (2007)6 NWLR (Pt. 1030) 237. Counsel referred to page 21 of the record where the appellant stated that he chose to follow administrative procedures/due process to achieve redress instead of resolving to early litigation. It is submitted that appellant entirely chose not to seek redress in Court by his own volition and not because he was consciously delayed by the need to exhaust i.e respondent’s internal mechanism as stated in paragraph 3.26 to 3.30 or the appellant’s brief. That Section 2(a) of the Public Officers Protection Act does not admit of foot dragging or late coming. He referred to Crutech Vs Obetan (2011) 15 NWLR (Pt. 1271) 459. Counsel referred to Section 16 of the University of Port Harcourt Act replicated in paragraph 3.26 of the appellant’s brief which did not extinguish the constitutionally guaranteed rights of the appellant to approach the Court of law within the time prescribed by law to seek redress.

In response to the appellant’s argument that the acts of the respondent are continuous, as such the cause of action has not accrued, the case of A-G Rivers State Vs A-G Bayelsa State (supra) relied upon by the appellant’s counsel is distinguishable with the instant case, in the sense that the cause of action in this suit is of a different nature, unlike the cause of action in A-G Rivers Vs A-G Bayelsa (supra) which relates to debt accruing from oil wells belonging to Rivers State. He referred to INEC Vs Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 where the Supreme Court defined the term “Continuance of injury” under Section 2(a) of the Public Officers Protection Act as follows:
“Continuance of Injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury.” Pages 205, 209 and 210 of the report referred to.

That the above case being the current position of the law in this regard, the Supreme Court did not enlist fair hearing as an exception to the defence under Section 2(a) of the Public Officers Protection Act. Counsel also argued that the case of Mohammed Vs A.B.U. Zaria (supra) is not applicable to this case as the principle therein does not represent the current position of the law. That Section 2(a) of the Public Officers Protection Act does not preclude a litigant from being heard by a Court or tribunal, but only prescribes a time frame within which a litigant can enforce a cause of action. The Court was referred to Military Adm. Ekiti State Vs Aladeyelu (2007) 14 NWLR (Pt. 1055) 619 and Egbe Vs Alhaji (supra).

It is finally submitted that by the decision of the Supreme Court, malice is not an exception to the applicability of Section 2(a) of the Public Officers Protection Act. That it is not a condition that a Court is required to consider in the applicability of the section.

Relying on the cases of A.T. Ltd Vs A.D.H. Ltd (2007) 15 NWLR (Pt. 1056) 118 SC and Akins & Ors Vs The State (1989) CLRN 107 at 112, it is submitted that where words used in a statute are clear and unambiguous, the Court ought to give it the literal interpretation.

Referring to the submission of the appellant’s counsel that the Senior Staff Disciplinary Committee is a quasi Judicial body, counsel submitted that the issue does not arise at the lower Court but raised for the first time on appeal without the leave of Court as required by the law. He referred to Zakari Vs Nigerian Army (2015) 62 (Pt. 1) NSCQR 214 and urged to discountenance the submission of the appellant’s counsel on this fresh issue raised without seeking and obtaining leave of the Court. The Court is urged to resolve in favour of the respondent.

The appellant’s reply brief is discountenanced for re-arguing what has already been canvassed in the main brief.

By virtue of Section 2(a) of the Public Officers Protection Act, LFN 2004, where any action, prosecution or proceedings 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 failure in the execution of any such Act, law, duty or authority, the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, within three months next after the ceasing thereof.
For emphasis Section 2(a) of the Public Officers Protection Act state:
“The action, prosecution 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 ceasing thereof.”
To determine whether an action is statute barred, the Court looks at the plaintiff’s writ of summons and statement of claim alleging when the wrong was committed by the defendant. In other words, when the cause of action accrued and when the writ of summons was filed in Court. If the date of filing is beyond that permitted by the statute then the action is statute barred. See Egbe Vs Adefarasin (1987)1 NWLR (Pt. 74)1.
The exception, is where there has been a continuance of damage or injury, a fresh cause of action arises from time to time and as often as the damage or injury is caused – Aremo II Vs Adekanye (2004) 13 NWLR (Pt.891) 572 SC and Nweke Vs Unizik; Awka (2017) 18 NWLR (Pt. 1598) 454.
It is to be noted that the appellant conceded that Section 2(a) of the Public Officers Protection Act would affect a suit against a public officer brought outside three months next to the cause of action, but it is not without exception, and that the act of the respondent constitute continuing damage and injury and the suit was not caught up by the limitation law.

Paragraph 36 of the statement of facts of the appellant is to the effect that the claimant/appellant received a letter of 25/6/2009 from the office of Defendant/Respondent’s Registrar suspending him (appellant) from duty sequel to allegation of immoral tendencies against him and being investigated by the Senior Staff Disciplinary Committee. By a letter of 12/11/2009 he was invited to appear before the said committee of senior staff Disciplinary committee.

In paragraph 40 the claimant/appellant deposed therein that the defendant/respondent’s Governing Council at its meeting of 27/9/2010 acted on the recommendation of senior staff Disciplinary Committee (SSDC) and he was issued a letter of purportedly compulsory retirement on the 8th of October, 2010.

The question to be answered is whether the Respondent can rely on the exception of Limitation to escape liability? Looking at the statement of facts and when the suit was filed, the appellant was issued a letter of compulsory retirement on the 8th of October, 2010 and the action was filed on the 27th of June, 2014, which is a period of 3 years 8 months (Three years eight months) after the accrual of the cause of action. This is contrary to the provisions of Section 2 (a) of the Public Officers Protection Act. The claim is statute barred and unenforceable in the Court of Law. This is because while the Public Officers Protection Act allows for the commencement of an action against a Public Officer within three months next after the happening of an act, the appellant filed this action after three years, eight months after the act complained had occurred. The Suit is clearly statute barred and unenforceable. See Araka vs. Ejeagwu (2000) 15 NWLR (pt. 692) 684.

Now the appellant contended that the act complained of constitutes a continuing act or injury to the appellant which is an exception to the applicability of Section 2(a) of the Public Officers Protection Act. He argued that the act of the respondent is malicious and he was denied fair hearing guaranteed constitutionally by the Constitution of Nigeria 1999 (as amended), that the respondent did not observe the constitutional provision of fair hearing under Section 36 of the 1999 Constitution of Nigeria (as amended) and Section 16 of the University of Port Harcourt Act Cap U13 LFN, 2004. It is also his argument that the delay in hearing the allegation against him including the appeal timeously, constitutes conscious effort by the respondent to prevent the appellant from bringing his action within time. That the Limitation Law does not apply where a party is prevented from bringing an act or denied him the opportunity to sue timeously.

The appellant also argued that the Senior Staff Disciplinary Committee of the respondent is a quasi-judicial body constituted to investigate the allegation against him and so is the appeal committee.

The respondent’s contention is that the acts complained of by the appellant is within the scope and power of the respondent by virtue of Section 16 of the University of Port Harcourt Act which section gives the respondent the power to discipline any member of its staff and that discipline extends to suspension and dismissal. The respondent argued that the appellant on his own chose to delay the institution of his action when he stated that he chose to follow administrative procedures/due process to achieve redress. That the appellant was not consciously delayed by the need to exhaust the respondent’s internal mechanism.

With regard to the appellant’s submission on denial of fair hearing, and the acts of the respondent are continuous, learned Counsel for the respondent argued that the case of A.G. Rivers vs. A.G. Bayelsa (supra) relied on by the appellant is distinguishable with this case and he referred to INEC vs. Ogbadibo LG (supra) where the Supreme Court decided “continuance of injury” to mean continuance of the legal injury and not continuance of the injurious effects of Legal injury and that the above authority did not enlist fair hearing as an exception to the defence under Section 2(a) of the Public Officers Protection Act.

And that by the decision of the Supreme Court, malice is not an exception to the applicability of Section 2(a) of the Public Officers Protection Act.

It is also the submission of the respondent that the appellant’s reference to Senior Staff Disciplinary Committee as a quasi Judicial body, counsel said the issue did not arise at the lower Court but is raised for the first time on appeal without leave of the Court.

The Public Officers Protection Act stipulated that where there is a continuance of damage or injuries, it can be said that a cause of action arises from time to time as often as damage or injury is caused, the cause of action will be considered as continuing act. Continuance of injury means the continuance or repeat of the act which caused the injury. See Olaosebilkan vs. Williams (1996) 5 NWLR (pt. 449) 437 at 456 where Salami JCA held that:
“Continuance of injury or damage means merely continuance of injury or damage within the meaning of Public Authorities Protection Act 1893.”
In Curey vs. Metropolitan Isorough of Bermptidy (1903) 671, P. 447, the Court of Appeal held that continuance of injury or damage means the continuance of the act which caused the damage. See also INEC vs. Ogbadibo LG (supra).
It follows therefore from the above decision that the commission of the act caused damage or injury, and the act committed must be continuous. In other words, it must be proved that an act must be committed, that the commission of the act caused damage or injury, the act must be continuous. Where a single act is committed, unless it can be shown that the effect of that act is continuing and not just continuance of the injurious effect of a legal injury. The fact that the respondent compulsorily retired the appellant is a complete act incapable of being repeated. Therefore the exception under Section 2(a) of the Public Officers Protection Act does not avail the appellant in the circumstance of this case.

Where a statute provides on the institution of an action within a prescribed time, the time so prescribed also dictates the time when the Court shall have jurisdiction over the said action. Thus, even though Courts are enjoined to do substantial justice and eschew technicalities, when it comes to the issue of limitation of time a Court is bound by what the statute stipulates. See Ajayi vs. Military Administrator of Ondo State (1997) 5 NWLR (pt. 504) 237.
Therefore any action that is instituted after the stipulated period by the statute is barred as the right of the plaintiff or injured person, to commence the action would have been extinguished by law. See Ibrahim vs. JSC (1998) 14 NWLR (pt. 584) 1; Obiefuna vs. Okoye (1961) 1 ANLR 357; Egbe vs. Adefarasin (supra); Awolola vs. Ekiti State (2019) 6 NWLR (pt. 1668) 247 and Uniport vs. John (2020) 10 NWLR (pt. 173) 106).

By the appellant’s statement of facts, he was suspended from duty by the respondent on the allegation of immoral tendencies by a letter of 25th June, 2009. A Senior Staff Disciplinary Committee was constituted to investigate the allegation to which he was invited by the committee. The Senior Staff Disciplinary Committee recommended to the Governing Council of the Institution for his dismissal.
Section 16(1) of the University of Port Harcourt Act reads:
(1) “If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the university other than the Vice Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall:
(a) Give notice of those reasons to the person in question.
(b) afford him an opportunity of making presentations in person on the matter to the Council.”
It is the case of the appellant that he was denied fair hearing by the respondent. From his statement of facts, he was invited by the Senior Staff Disciplinary Committee to present his case on the allegation made against him. It does not therefore lie in his mouth to say that he was denied fair hearing. It has become a habit by litigants to make wrong allegations of denial of fair hearing on appeal in order to cover their inadequacies at the trial Court. In this case, the allegation of denial of right to fair hearing by the appellant would not stand because the appellant on his showing said he was invited by the Senior Staff Disciplinary Committee on the allegation made against him. His invitation obviously is by virtue of Section 16(1)(b) of the University of Port Harcourt Act to present his case, the said section which he said was breached. Where a party is given the opportunity to present his case he cannot complain of breach of right to fair hearing. See Orugbo vs. Una (2002) 16 NWLR (Pt. 792) 175 at 211-212 paragraphs. H-A, Umar vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 35 and Agbabiaka vs. F.B.N Plc (2020) 6 NWLR (Pt. 1719) 77.

The appellant stated in his statement of facts that after his suspension by the respondent in the year, 2009, he was issued a letter of compulsory retirement on the 8th of October, 2010.
His cause of action starts on the 8th of October, 2020 when he was issued with a letter of compulsory retirement. The appellant instituted the action on the 24th of June 2014 which is outside the three months period prescribed by Section 2(a) of the Public Officer Protection Act. His suit is statute barred. Once a defence of limitation of time is raised as in the instant case, and it is established, it bars the Plaintiff’s remedy and extinguishes his right of action, there would be no basis for the trial Court to adjudicate on the conduct of the appellant which gave rise to the action. Consequently, the Court must decline to entertain the action. See INEC vs. Ogbadibo LG (supra); Amadi vs. NNPC (2000) 10 NWLR (pt. 674) 76 and Inakoju vs. Adeleke (2007) 4 NWLR (pt. 1025) 423. This in effect means that there is absolutely no basis for prying into the conduct of the appellant howsoever which gave rise to the action even as being suggested here by the learned counsel for the appellant. See Chigbu Vs. Tonimas (Nig) Ltd (2006) 4 SC (pt. 11) 186 (supra) and Egbe vs. Adefarasin (supra).
Where the hand of the Court is tied as in the circumstance of this case, which disallows it to go into the merit of the case, it will have no objection but to decline to entertain the matter. The correct position of the law was that the three months period started to run when the appellant was issued a letter of compulsory retirement in 2010. Thus, the trial Court was right when it held that the institution of the Suit on 27th June, 2014 from the 8th of October, 2010 is a time difference of 3 years 8 months, the right to judicial relief in the Claimant’s case is removed, thereby leaving him with a bare and empty or hollowed cause of action which he can no longer enforce.

With regard to the issue of the Senior Staff Disciplinary Committee which the appellant’s counsel referred to as quasi judicial body, an appellant will not be allowed to raise on appeal a question that was not raised or tried or considered by the lower Court. Although a party can raise a fresh issue on appeal, he must seek and obtain the leave of Court, to do so. See Nweke vs. Unizik, Awka (2017) 18 NWLR (pt. 1598) 454 at 463.
In the instant case, the issue of quasi judicial body was not raised or tried or considered by the trial Court and the appellant did not seek leave to raise the issue, the appellant’s arguments thereon are out of place in this appeal and they are discountenanced. See Owei vs. Ighiwi (2005) 5 NWLR (pt. 917) 184 and Koya vs. UBA (1997) 1 NWLR (pt. 481) 251.

On the allegation of malice by the appellant against the respondent where a party acted within the scope of his power and authority the allegation of malice will be destroyed. In the instant case, the allegation of immoral tendencies was made against the appellant. The respondent constituted a committee pursuant to Section 16 of the University of Port Harcourt Act, 2004 to investigate the allegation against appellant. The Committee invited the appellant for his presentation against the allegation. At the end of the exercise, the committee recommended to the Governing Council of the respondent for dismissal of the appellant. The fact that the operating University of Port Harcourt under which the compulsory retirement was made, and there was due compliance with the Act from which it has been seen to be done in the communication to the appellant, the allegation of malice under Section 2(a) of the Public Officers Protection Act will not avail the appellant. The Supreme Court in Egbe Vs. Adefarasin (1985) 1 NWLR (Pt. 3) 549 at 560 Nnaemeka Agu JSC said:
“The issue of malice in connection with Section 2(a) of the Public Officer Protection Law may arise in two circumstances. A public officer might have done an act in pursuance of or executing of a law or his public duty with ulterior motive, such as helping himself or his friend or injuring the plaintiff. Another public officer may, while a public officer and under cover of an office do an act contrary to or do not authorized by the law or not in accord with his public duty. If both acts result in an inquiry to the plaintiff it may be said that they acted maliciously”.
In the instant case, there was compliance with the procedure laid down in the University of Port Harcourt Act to which the appellant was communicated in all the stages. Therefore the allegation of malice will not avail the appellant in the circumstance of this case, where the respondent acted bona fide and within the terms of its legal authority. It will not therefore be regarded as having acted maliciously. See Board of Management, FMC Makurdi, Vs. Abakume (2016) 10 NWLR (Pt. 1521) 356.

In the circumstance, the respondent having established that the appellant’s Suit is caught up by Section 2(a) of the Public Officers Protection Act having commenced his suit at the trial Court more than three years after the accrual of action, the action is stale and unenforceable. See Uniport vs. John (supra).

The issue is resolved against the appellant and in favour of the respondent. The appeal is devoid of merit and it is accordingly dismissed. The Judgment/Ruling of the trial Court delivered on the 10th of October, 2015 by Honourable Justice J. T. Agbadu-Fishim in Suit no. NICN/PH/122/2014 is hereby affirmed. Parties to bear their respective costs.

PAUL OBI ELECHI, J.C.A.: The judgment just delivered by my learned brother Tani Yusuf Hassan, JCA represents my views in this appeal.

I adopt both his reasons and conclusion that there is no merit in this appeal and deserve an order of dismissal.
Appeal dismissed.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, TANI YUSUF HASSAN, JCA.
I agree with the reasoning and order stated in the judgment, which I hereby adopt as mine.