NATIONAL POPULATION COMMISSION v. MR. O. O. WILLIAMS
(2016)LCN/8563(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of May, 2016
CA/L/479/2010
RATIO
APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION ARISE FROM
In a plethora of decisions of the Supreme Court, it has been settled that an issue for determination must arise from and relate to the grounds of appeal filed and no more. See: KALU V. ODILI (1992) NWLR (PT 34C); JOSIAH CORNELIUS LTD & S v EZENNA [1996] 4 NWLR (pt 443) 391; AJISA v AKEJI [1999] 7 NWLR (PT 40) 129;
MODUPE v STATE [1988] NWLR (PT 87) 130; SHETTIMA & ANR v GEMI (2011) LPELR – 417 (SC). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PUBLIC OFFICE: DISTINCTION BETWEEN PUBLIC OFFICERS AND PUBLIC AUTHORITIES
In RUFUS ALLI MOMOH v MR AFOLABI OKEWALE & ANOR (1977) LPELR 6 SC (REPRINT) 49, the Supreme Court drew the difference between Public Officers and Public Authorities and explained the fact that both were governed by separate Acts. The aims, objects and the purposes of the two Acts are also different, while the intention of the public Officers Protection Act is to protect the officer as individuals in the discharge of public duties. The Public Authorities Protection Act was to protect Public Authorities engaged in the discharge of responsibilities imposed upon them by Parliament.
In the later times, the Apex Court broaden the class in FGN v ZEBRA ENERGY (2002) 18 NWLR (PT 798) 162, where it was held the word Public officer or “any persons” in a public office as stipulated,. See Section 2(a) of Public Officers Protection Law 1963, not only refers to “natural person or persons sued in their personal names but that they extend to public bodies, artificial persons institution or persons sued by their official names or titles”. per MOHAMMED, JSC. See ATTORNEY GENERAL OF RIVERS STATE v ATTORNEY GENERAL OF BAYELSA STATE & ANOR (2012) LPELR 9336 SC; GALADIMA JSC concluded that:
“However, I need to emphasize a point here. Prior to the decision in lbrahim v. J.S.C. (supra) several decisions of our Courts were in conflict on the category of persons contemplated by the law, for whom protection is afforded or accorded. It was in that case this Court exhaustively reviewed the authorities on the point and concluded at page 37 of the Report thus: It is my view therefore that the words any persons as provided in Section 2 of the Public Officers (Protection) Law of Northern Nigeria,1963 are not limited only to natural persons or human beings or to persons sued in their personal names. Unless the contrary intention is therein indicated, and, no such intention is therein manifested, those words in the public Officers (Protection) Law include persons known to Law inclusive of artificial persons, public bodies or body of person corporate or incorporate as well as statutory or persons whether sued in their official titles or not so long as they are sued in respect of an act or acts alone in pursuance or execution of any law or any public duty or authority. This Court held that persons holding government positions such as Attorney General, permanent Secretaries or Inspector General of police etc are public officers covered by the law….
Therefore, in line with the above decision of the Apex Court, it is clear that the National Population Commission is an agency set up by the Federal Government of Nigeria and recognized by the Constitution under Section 213 thereof. Therefore it is a public body headed by a chairman and also, a body corporate.
The applicable law at the time the cause of action arose is the 1979 Constitution as suspended and modified by Decree No. 107 of 1993. Section 277 (c) thereof defines public service of the Federation in any capacity and includes:
“(c) member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly. In the light of the above, the appellant body qualifies as a public Officer within the meaning. see OFFOBOCHE v. OGOJA (2001) 16 NWLR 9(PT. 739)458. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PUBLIC OFFICER: DOES THE PUBLIC OFFICERS PROTECTION ACT APPLY TO CONTRACT OF EMPLOYMENT
The contention here is that the Public Officers Protection Act does not apply to contracts. I must say that the nature of the contract in this appeal is that of contract of employment. The lower Court relied on AMAO V. CIVIL SERVICE COMMISSION (1992) 7NWLR (PART 232) – 114, a decision of the Court of Appeal in reaching its conclusion.
However, the Supreme Court has since settled the issue where in FGN v. ZEBRA ENERGY LTD (supra) where it was declared that the public Officer Protection Act does not apply to case of Contract.
The Contract referred to herein is “Contract for service” but the confusion arises as to whether it covered Contract of employment but this is made more clear and apt without any controversy in the case Of YARE V. NATIONAL COMMISSION FOR SALARIES, WAGES, INCOMES COMMISSION (supra).
The Supreme Court in MINISTER. P.M.R v. EXPO-SHIPPING LINE (NIG) LTD [2010] 12 NWLR (PT 1208) 261 SC held that the public Officer Protection Act covers employment contract. This appeal is on all fours within the case of YARE V. NSW & I.C. (supra) where the Apex Court at pages 191-192 held that upon being relieved of his employment, the Appellant therein had a choice to quickly enforce his right by going to Court to retaliate his grievances. He elected to sleep away, he woke up late to allege that he was waiting the outcome of his appeal before he counters.
Having settled the thorny issue, the case of AMAO V. CIVIL SERVICE COMMISSION (supra), ought not to have been relied upon by the lower Court. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
NATIONAL POPULATION COMMISSION Appellant(s)
AND
MR. O. O. WILLIAMS Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of AJAKAIYE. J. of the Federal High Court, Lagos delivered on 14th July, 2009.
By a statement of claim dated 9/6/98 which was further amended filed on 10/04/2002 pursuant to an order of the Court dated 27th March 2002, the Respondent commenced an action against the following reliefs:
i. Declaration that the purported termination of appointment by the plaintiff by the defendant is wrongful, null and void and of no effect whatsoever.
ii. An order reinstating the plaintiff into the service of the defendant together with all rights and appurtenances attaching to his office without any diminution as if the events being the subject matter of this suit never occurred.
iii. An order that the defendant do compute and, pay to the plaintiff all his outstanding salaries, allowances and other remuneration and entitlements from April 1996 until judgment and his reinstatement.?
Alternatively, he claimed:
i. A declaration that the purported termination of appointment of the plaintiff by the defendant is wrongful, unlawful,
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null and void and of no effect whatsoever.
ii. Declaration that the plaintiff is entitled to recover from the defendant the sum representing his salaries and. allowances from the time of purported termination of his appointment in April 1996 and calculated to terminate at the time he should normally retire from the service upon attainment of the mandatory retirement age of 60yrs.
iii. A declaration that the plaintiff is entitled, to payment of pension and gratuity at the rate that should have been applicable had the plaintiff retired normally from service from upon attainment of the mandatory age of retirement.
iv. An order that the defendant do compute and pay to the plaintiff all the outstanding salaries, allowances remunerations and entitlement from April 1996- December 2001 as outlined in paragraph 24 above in aggregate sum of Nl,420,308.60 (One Million, Four Hundred’ and Twenty Thousand, Three Hundred and Eighty Naira, Sixty Kobo).
v. An order that the defendant do pay the aggregate sum of N3,578,903.40 (Three Million Five Hundred and seventy Eight thousand Nine Hundred, and Three Naira, Forty Kobo) being the plaintiffs salaries and,
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allowance from 2002 till August 2008 being the time his normal retirement would have occurred calculated at the rate of N536,836.60 per annum which represents the plaintiffs outstanding salaries and, allowance from 2001 or in the alternative, compute and pay to the plaintiff up front his salaries and, allowance for the same period.
vi. An order directing the defendant to compute and pay to the plaintiff his gratuity and pension as would, be applicable upon his having normally retired, from service and thereafter accord the plaintiff his subsequent pension rights and payments in line with the usual and normal ciuil service regulations and practice.
vii. General damages in the sum of N2 Million.
By a motion on notice dated 21st November, 2008, the Appellant as Defendant sought an order to strike out the suit in its entirety for want of jurisdiction on the ground that the suit was not brought within a period of three months and is therefore statute barred by virtue of the provisions of Section 2(1) of the Public Officers Protection Act.
The lower Court in a well considered Ruling dismissed the preliminary objection on the ground that Section
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2(1) of the Public Officers Act has no application in this suit.
Upon the granting of leave to appeal the Ruling, the Appellant filed a Notice of Appeal on 22/11/2010. Briefs of argument were filed and exchanged by the respective parties. The Appellant’s brief is dated and filed 12/12/2013; it is settled by Nelson Orji of the Legal Unit of National Population Commission. The Respondent’s Brief settled by Theophilus Ochonogor Esq. of Clarke, Paiko & Co. is dated and filed 17 /1/2014.
?The Appellant settled two issues for determination thus:
1. Whether the National population commission is a public officer within the meaning of public Officers protection Act?
2. whether the Court below is right to rely on AWAO v CIVIL SERVICE COMMISSION & 2 ORS [1992] 7 NWLR (PT.252) 214 at 219.?
While the Respondent submitted a sole issue as follows:
“1. whether the provisions of Section 2 (a) of the Public Officers Protection Act is applicable where subject matter relates to contract as in the instant case.”
?In resolving this appeal, I find that they are similar but I shall adopt the appellant’s issues as it is the one
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aggrieved with the decision of the lower Court and are identifiable with the grounds of appeal contained in the Notice of Appeal.
ISSUE 1
Appellant referred to Section 18 of Interpretation Act and 1979 Constitution as amended by Decree 107 of 1993 which is the applicable law at the time the cause of action arose and defined “Public Officer? to be a member of the public service of the federation within the meaning of the Constitution of the Federal Republic of Nigeria of a State ? in Section 277(C) definition of 1979 modified as “the service of the Federation in any capacity in respect of the government of the federation and includes service as: (c)member of staff or any commission or authority established for the federation by this constitution or Act of the National Assembly’. He referred to IBRAHIM v JUDICIAL SERVICE COMMISSION (1998) 12 SC 1- 36 where it has now been defined to include “public department” and therefore an artificial person, a public office or a public body.
?He submitted that the word “Public Officers” as described in Laws of the Federation Nigerian, 2004 excludes National population Commission. That this
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constitution was not in force at the time the suit was instituted in the Court below and this misled the Court. Therefore, he urged that National Population Commission is a “public service.”
The Respondent in response while submitting that decisions of the Supreme Court binds all other Courts, disagreed with Appellant’s submission on the applicability of IBRAHIM v JSC (supra) and submitted that the judgment of IGUH, JSC in that case was silent as to whether it applied or not; but that in FGN v ZEBRA ENERGY LTD (2002) 12 SC (PT 11) 136 at 149, MOHAMMED JSC stated that Ibrahim’s case did not consider whether the Act applies to cases of contract and therefore the Ibrahim’s case is not apt herein.
Respondent counsel relied on NIGERIAN PORTS AUTHORITY v CONSTRUZIONI GENERALI FCS & ANOR (1974) NSCC 622 at 630 – 631 wherein Section 97 of the Ports Act, which is in pari materia with Section 2 of Public Officers Protection Ordinance was considered and the Learned Chief Justice in that case made reference to SALAKO v L.E.D.B & ANOR 20 NLR 169 and that the Court held that the Act has no applicability to contract. He also referred to MIDLAND RAILWAY CO. V
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THE LOCAL BOARD FOR THE DISTRICT OF WITHINGTON (1882) 11 OBD 788 at 794. He submitted vide KOLO v A.G., FEDERATION [2003] 10 NWLR (PT 829) 602 at 623. Respondent distinguished all the cited cases and in conclusion submitted that the Learned Trial Judge was right in holding that the Section 2(a) of Public Officers Protection Act has no application to the case.
The Respondent submitted that the issue for determination must relate to the grounds of appeal contained in the notice filed. He relied on ALIYU v. CHAIRMAN, RENT TRIBUNAL (2003) 10 NWLR (pr. 829) 633 @ 643D; ADAH V. ADAH (2001) 2 SC 1 at 7; MOBIL PROD (NIG) UNLTD V. MONOKPO (2003) 18 NWLR (PT 852) 346 @ 423 C-F.
He submitted that the grounds are whether Section 2 of the Public Officers Protection Act is not applicable to the case and not whether the National Population Commission is a public officer within the meaning of the Public Officers Protection Act; and that the appellant did not appeal against the specific finding of the Court. The respondent therefore submitted that issue (1) is not based or related to or arise from ground (A) and same is academic and should be struck out.
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On Issue 2, the Appellant submitted that the decision of IBRAHIM v JSC binds all other Courts and referred to page 23 of the judgment and submitted that in this regard the Court below fell into grave error in relying on AMAO V. CIVIL SERVICE COMMISSION AND 2 ORS which is an earlier decision of the Court of Appeal. He referred to YARE v NATIONAL SALARIES, WAGES, INCOMES COMMISSION [2013] 5 ? 6 SC (PT 1) 108. He said the Court did not comment on the date of cause of action and time of commencement vis a vis effect of Section 2 (a) of Public Officer Protection Act. He concluded by submitting that it applies to contracts of employment and the issue be resolved in favour of the Appellant.
In response, the Respondent repeated the submissions made in Issue
RESOLUTION OF ISSUE I & II
Before resolving the issue before this Court, I must resolve the objection raised by the Respondent, albeit incompetently, as to whether issue one flows from the grounds of appeal. This is raised in the body of the Respondent’s brief at pages 8-9 of the brief, only it was not raised by way of preliminary objection but in reply to Issue 1 after responding to Issue 2 by
?Appellant.
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Issue 1 was distilled from ground one of the Notice of Appeal which is dated 22/11/10 thus:
GROUND OF APPEAL
A. The learned Trial Judge erred in law when it held that Section 2(a) of the Public officers Protection Act is not applicable to this case.
PARTICULARS OF ERROR
i. The defendant in this case is a public officer.
ii. The subject matter of the suit arose from a purported act of a public officer (Defendant)
iii. The public officers Protection Act seeks to protect public officers from prosecution for any action that is brought more than 3 months from when the case of action arose.
iv. That the plaintiff brought this action against the defendant after 3 months contrary to the Public Officers Protection Act”‘
Issue one distilled thereof is “whether the National Population Commission is a public officer within the meaning of the Public Officers Protection Act.? In a plethora of decisions of the Supreme Court, it has been settled that an issue for determination must arise from and relate to the grounds of appeal filed and no more. See: KALU V. ODILI (1992) NWLR (PT 34C); JOSIAH CORNELIUS LTD & S v EZENNA [1996] 4 NWLR (pt
9
443) 391; AJISA v AKEJI [1999] 7 NWLR (PT 40) 129;
MODUPE v STATE [1988] NWLR (PT 87) 130; SHETTIMA & ANR v GEMI (2011) LPELR – 417 (SC).
I have read the judgment of the lower Court; I believe it is obvious, contrary to the argument of Respondent’s counsel, that issue one is not formulated from it. The lower Court held that Section 2 (a) of Public Officers Protection Act is not applicable. The issue distilled is clearly on whether the National Population Commission is a public Officer within the meaning of the Act. The particulars of error give a detailed analysis of the reason for which the ground was formulated particularly and seeks to justify whether the Appellant National Population Commission is a Public Officer within the meaning and definition of the Public Officers protection Act.
The issue before the Court cannot be addressed without a consideration of the particulars which form the core ingredients of the definition thereof. I am unable to agree that the issue 1 is not related to the ground. The objection is incompetent and I hereby dismisses same. See, OLUROTIMI v IGE [1993] NWLR (PART 311) 257; SHETTIMA & ANOR v MOHAMMED
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GEMI & ORS (2011) LPELR – 417 SC. Having settled this issue, in considering the appeal on merit, a convenient point is in the apt definition.
In RUFUS ALLI MOMOH v MR AFOLABI OKEWALE & ANOR (1977) LPELR 6 SC (REPRINT) 49, the Supreme Court drew the difference between Public Officers and Public Authorities and explained the fact that both were governed by separate Acts. The aims, objects and the purposes of the two Acts are also different, while the intention of the public Officers Protection Act is to protect the officer as individuals in the discharge of public duties. The Public Authorities Protection Act was to protect Public Authorities engaged in the discharge of responsibilities imposed upon them by Parliament.
In the later times, the Apex Court broaden the class in FGN v ZEBRA ENERGY (2002) 18 NWLR (PT 798) 162, where it was held ?the word Public officer or “any persons” in a public office as stipulated,. See Section 2(a) of Public Officers Protection Law 1963, not only refers to “natural person or persons sued in their personal names but that they extend to public bodies, artificial persons institution or persons sued by their
11
official names or titles”. per MOHAMMED, JSC. See ATTORNEY GENERAL OF RIVERS STATE v ATTORNEY GENERAL OF BAYELSA STATE & ANOR (2012) LPELR 9336 SC; GALADIMA JSC concluded that:
?However, I need to emphasize a point here. Prior to the decision in lbrahim v. J.S.C. (supra) several decisions of our Courts were in conflict on the category of persons contemplated by the law, for whom protection is afforded or accorded. It was in that case this Court exhaustively reviewed the authorities on the point and concluded at page 37 of the Report thus: ?It is my view therefore that the words ?any persons? as provided in Section 2 of the Public Officers (Protection) Law of Northern Nigeria,1963 are not limited only to natural persons or human beings or to persons sued in their personal names. Unless the contrary intention is therein indicated, and, no such intention is therein manifested, those words in the public Officers (Protection) Law include persons known to Law inclusive of artificial persons, public bodies or body of person corporate or incorporate as well as statutory or persons whether sued in their official titles or not so long as
12
they are sued in respect of an act or acts alone in pursuance or execution of any law or any public duty or authority. This Court held that persons holding government positions such as Attorney General, permanent Secretaries or Inspector General of police etc are public officers covered by the law….?
Therefore, in line with the above decision of the Apex Court, it is clear that the National Population Commission is an agency set up by the Federal Government of Nigeria and recognized by the Constitution under Section 213 thereof. Therefore it is a public body headed by a chairman and also, a body corporate.
The applicable law at the time the cause of action arose is the 1979 Constitution as suspended and modified by Decree No. 107 of 1993. Section 277 (c) thereof defines public service of the Federation in any capacity and includes:
“(c) member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly.? In the light of the above, the appellant body qualifies as a public Officer within the meaning. see OFFOBOCHE v. OGOJA (2001) 16 NWLR 9(PT. 739)458.
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I therefore resolve Issue 1 in favour of the Appellant.
With respect to issue two, by virtue of the further Amended Statement of Claim filed on 10th of April, 2002, the Respondent averred:
?17. By letter of 17th April 1996, the Defendant purported, to terminate the plaintiffs? appointment from the Federal Civil Service with immediate effect “in the interest of the service. No reason was stated why the termination of the plaintiff?s appointment was concluded to be in the interest of the service. The plaintiff shall contend that this may not be unconnected within the subject matter of the previous letter to him dated 25th January 1996 referred to earlier in which event, the purported termination is unjustified.?
18. The Plaintiff shall further contend that at the trial that the Defendant has no exclusive power to exercise disciplinary action on him as an officer on Grade level 14 in the Federal Civil Service without any recourse to the Federal Civil Service Commission. In any event the termination of the Plaintiff?s appointment was clearly not the recommendation of the special committee of the commission who are said to
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have recommended, that the Plaintiff be retired from Service,.
19. The Plaintiff appealed against the termination of his appointment to the chairman of the Defendant by a letter dated. 7th June, 1996. A year and three months later, by a letter dated 22nd August, 1997; the Defendant insisted that the Plaintiff?s appointment remained terminated?
20. The Plaintiff further appealed, to the Federal Civil Service Commission by a letter dated, 27th August, 1997, to look into this matter to ensure that justice is done. The commission has till date failed to reply to the letter.?
21. The Plaintiff caused his Solicitors to address letters dated 4th November, 1997 and 11th December, 1997 to the Defendant demanding that the Plaintiff be reinstated and paid his arrears of salary. Notwithstanding the said letters the Defendant failed, refused and neglected to reinstate the Plaintiff and pay his outstanding entitlements”.
In Paragraph 19 and 20 of the Amended Statement of Claim, the plaintiff stated that he appealed against the termination to chairman of the Defendant and to Federal Civil Service Commission respectively which period
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spanned 7th June 1996 – 27th April 1997 .
The suit was commenced vide a Writ of Summons dated 9th of June 1998. This is evident from the page 2 of the record as per suit no FHC/L/CS/607/98.
In JOHN ELEAJUN v. ELEGBETA ALIMI [1991] 3 NWLR (PART 179) 258, the Court held that the action must be instituted against the public Officer before the expiration of 3 months from the date of the commission of the act complained of, if the action is brought after the three (3) months period, it will be un-maintainable.
The action herein was about 2 years statute barred, as at the time the Respondent was given the termination letter, it was 17th April 1996, of which the cause of action remains alive till 17th July , 1996 but rather appealed to higher authority for a period of two years which is apparently beyond the three (3) months prescribed and ipso facto does not stop time from running. See EBOIGBE v. NNPC [1991) NWLR (PART 347)649.
The contention here is that the Public Officers Protection Act does not apply to contracts. I must say that the nature of the contract in this appeal is that of contract of employment. The lower Court relied on AMAO V. CIVIL
16
SERVICE COMMISSION (1992) 7NWLR (PART 232) – 114, a decision of the Court of Appeal in reaching its conclusion.
However, the Supreme Court has since settled the issue where in FGN v. ZEBRA ENERGY LTD (supra) where it was declared that the public Officer Protection Act does not apply to case of Contract.
The Contract referred to herein is “Contract for service” but the confusion arises as to whether it covered Contract of employment but this is made more clear and apt without any controversy in the case Of YARE V. NATIONAL COMMISSION FOR SALARIES, WAGES, INCOMES COMMISSION (supra).
The Supreme Court in MINISTER. P.M.R v. EXPO-SHIPPING LINE (NIG) LTD [2010] 12 NWLR (PT 1208) 261 SC held that the public Officer Protection Act covers employment contract. This appeal is on all fours within the case of YARE V. NSW & I.C. (supra) where the Apex Court at pages 191-192 held that upon being relieved of his employment, the Appellant therein had a choice to quickly enforce his right by going to Court to retaliate his grievances. He elected to sleep away, he woke up late to allege that he was waiting the outcome of his appeal before he counters.<br< p=””
</br<
17
Having settled the thorny issue, the case of AMAO V. CIVIL SERVICE COMMISSION (supra), ought not to have been relied upon by the lower Court. The simple resolution of this case is that the action regrettably, is statute barred having regard to Section 2 (a) of Public Officers Protection Act.
I resolve issue two in favour of the Appellant.
The appeal succeeds and is allowed. The decision of AJAKAIYE J. in FHC/CS/607/1998 delivered on 14th July,2009 is hereby set aside.
No order as to cost.
SIDI DAUDA BAGE, J.C.A.: Having read in draft the lead judgment of my learned brother Abimbola Osarugue Obaseki-Adeiumo, JCA I agree with the reasonings and conclusion reached therein. And adopt same as mine.
The appeal succeeds and is also allowed by me. The decision of Ajakaiye J. in FHC/CS/607/1998 delivered on 14th July, 2009 is hereby set aside.
No order as to cost.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft of the lead judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI JCA and I adopt the judgment as mine with nothing to add.
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Appearances
ABSENTFor Appellant
AND
THEOPHILUS OCHONOGORFor Respondent
