NELMCO LTD v. ONIFADE & ANOR
(2022)LCN/17199(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/IB/273/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
NIGERIAN ELECTRICITY LIABILITY MANAGEMENT COMPANY LIMITED APPELANT(S)
And
1. OLUWADEMILADE PIUS ONIFADE (SUBSTITUTED BY THE ORDER OF COURT ON 15TH DAY OF October, 2021) 2. IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE SCOPE AND APPLICABILITY OF THE PUBLIC OFFICERS PROTECTION ACT
Generally, the scope and applicability of the Public Officers Protection Act was discussed in the case of KWARA STATE PILGRIMS WELFARE BOARD V. BABA (2018) LPELR-43912(SC) and Section 2(a) of the Public Officers Protection Act provides as follows: –
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provision 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 continuance of damage or injury, within three months next after the ceasing thereof…”
In HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547 AT 591 the apex Court while considering the scope of Section 2(a) of the Public Officers Protection Act, 1990, said: –
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal jurisdiction, he cannot claim the protection of the provisions of the public officers Protection Act.”
The facts to be produced must exist to enable the Court find the absence of semblance of legal jurisdiction, otherwise, once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same. It is in essence a limitation provision with the same effect as a limitation Law. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON THE PURPOSE OF THE LIMITATION ACT
The whole purpose of the Limitation Act is to apply to a person who has good causes of action which they could if so disposed, enforce, and to deprive them of power of enforcing them after they have laid by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use. The apex Court, in the case of AJAYI V. ADEBIYI (2012) ALL FWLR (PT. 634) 1, (2012) 11 NWLR (PT. 1310) 137 AT 169, on the essence of statute of limitation stated as follows: –
“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings, cannot be properly and validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had passed. An action which is not brought within the prescribed period, offends the provision of the law and does not give rise to a cause of action. The yardstick to determine whether an action is statute barred are: –
(a) The date when the cause of action accrued;
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”
In AMADI V. I.N.E.C. (2012) ALL FWLR (PT. 621) 1415, (2012) 4 NWLR (PT. 1345) 607, the apex Court held that the conspicuous effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Also, that the Court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form. PER NIMPAR, J.C.A.
THE ESSENCE OF THE PUBLIC OFFICER PROTECTION ACT
The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2(a) of the Act. In all action, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his right, or has led the opposite party responsible for or guilty of such infringement to believe that he has left or abandoned his right. See on this, OSUN STATE GOVERNMENT V. DALAMI (NIG.) LTD (2007) ALL FWLR (PT. 365) 438, (2007) 9 NWLR (PT. 1038) 66; CHIGBU V. TONIMAS (NIG.) LTD (2006) ALL FWLR (PT. 320) 984, (2006) 9 NWLR (PT 984) 189; SHETTIMA V. GONI (2011) 18 NWLR (PT. 1279) 413, (2012) ALL FWLR (PT. 609) 1007; P.D.P. V. C.P.C. (2011) ALL FWLR (PT. 603) 1786, (2011) 17 NWLR (PT. 1277) 485.
The Court in HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007, (2010) 17 NWLR (PT. 1223) 547 gave some exceptions and held that:
“Where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of Section 2 (a) of the Public Officers Protection Act as to three months’ time limit for commencement of action against him.
The law is settled that it is the duty of the plaintiff to adduce evidence or facts to prove that the officer acted outside the scope of his authority or without semblance of legal jurisdiction. The facts to be produced must exist to enable the Court find the absence of semblance of legal jurisdiction, otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time-barred and the Court will have no jurisdiction to entertain same. PER NIMPAR, J.C.A.
WHETHER OR NOT THE PUBLIC OFFICERS PROTECTION ACT APPLIES TO BREACHES OF CONTRACT OR RECOVERY OF LAND
The law, however, is that the Public Officers Protection Act does not apply to breaches of contracts, claims for work or labour done and recovery of land. See WEMA SECURITIES AND FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PART 1484) PAGE 913 AT 138 JSC and F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PART 798) PAGE 162 AT 197.
A perusal of the writ of Summons and the statement of claim shows that the cause of action of the Respondent lies in tort of negligence and not labour or employment related. It purportedly arose in the course of employment but not a labour matter. The alleged Negligence is the failure or omission to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. See ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1 and ABUBAKAR V JOSEPH (2008) 13 NWLR (PT. 1104) 304.
There are indeed exceptions to the applicability of the Public Officers Protection Act such as cases relating to specific contracts or the defendant acting outside the colour of his office.
Section 2(a) of the Public Officers Protection Act provides therein protection for a public officer in respect of any action, prosecution or other proceedings for any neglect or default in the execution of any Act, Law, duty or authority by such an officer. The word neglect in its verb form means,
“To fail to take care of somebody/something.” In its noun form it means; “The fact of not giving enough care or attention to something/somebody.” See Oxford Advanced Learner’s Dictionary 7th Ed. P. 981. The complaint of the respondent before the trial Court is in essence that the 2nd appellant did not give enough or the required attention to his driving in the cause of executing his public duty which resulted in damage to him and his vehicle. This brings his case within the purview of Section 2(a) of the Public Officers Protection Act.
In Ekemode v Alausa (1961) 1 ALL NLR (Pt. 1) 135, 137-138, Charles J, stated that;
“…the effect of Section 2 of the Public Officers Protection Ordinance appears to me as follows:-
(i) An act or omission on the part of a person to whom the section relates is within the section if it is proved that it was done or it occurred:-
(a) In the course of commencing to discharge, or in the course of discharging a public duty, or
(b) In the course of doing something incidental to the discharge of such a duty, or
(c) In the course of commencing to exercise, or in the course of exercising an authority or power conferred for a public purpose, or
(d) In the course of doing something incidental to the exercise of such authority or power.
(ii) An act on the part of a person to whom the section relates is also within the section if it is proved that it, by itself was incidental to the discharge of such a duty, or the exercise of such an authority or power, as above mentioned.
(iii) A total failure to discharge any duty or to exercise any authority or power as above mentioned on the part of a person to whom the section relates is also within the section. “PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court sitting in Ibadan and delivered by HON. JUSTICE J.D. PETERS on the 19th March, 2019 in Suit No.: NICN/AB/08/2015 wherein the lower Court entered judgment in favour of the 1st Respondent and awarded the sum of N150,000,000.00 against the Appellant and 2nd Respondent as damages for the permanent injuries the 1st Respondent sustained while at work. The Appellant dissatisfied with the decision, filed a Notice of Appeal on the 2nd day of March, 2020 setting out 5 Grounds of Appeal.
Facts leading to this appeal are straightforward and amenable to brief summary. The Appellant was the 2nd Defendant at the National Industrial Court, Ibadan Division, the 1st Respondent’s deceased father was Plaintiff at the lower Court and later substituted by this Honourable Court for the 1st Respondent on October 15th, 2021 upon his death on the 19th day March, 2021. The 2nd Respondent was the 1st Defendant. The 1st Respondent instituted this action via a General Form of Complaint and Statement of Claim both filed and dated the 15th day of September, 2015 and sought the following reliefs:
a. Negligence for the failure of your company to put off the 11kva cable in safe condition to prevent it, from been harmful N50,000,000 (Fifty Million Naira).
b. Cost of pains suffered, burnt, serious bodily injuries and amputation of the hands N50,000,000 (Fifty Million Naira).
c. Loss of enjoyment of life amenities N250,000,000 (Two Hundred and Fifty Million Naira).
d. Permanent disability N500,000,000 (Five Hundred Million Naira). Total claim is N850,000,000 (Eight Hundred and Fifty Million Naira
e. And also an interest on such damages at such rate for such periods as the Court shall think just.
f. Cost of litigation as assessed by the Honourable Court.
In response, the Appellant and the 2nd Respondent filed their statement of defence separately on the 24th February, 2017 and 9th June, 2016 respectively and denied liability. The matter proceeded to trial and the 1st Respondent called a sole witness and tendered 18 documents which were admitted as Exhibits CH1-CH18 while the 2nd Respondent also called a sole witness and tendered one document which was admitted as Exhibit D1. The Appellant did not call evidence but relied on the evidence of the 2nd Respondent in defence of its case. After due consideration, the trial Court entered judgment in favour of the 1st Respondent and awarded the sum of N150,000,000.00 against the Appellant and 2nd Respondent as damages for the permanent injuries the 1st Respondent’s father suffered. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s amended brief settled by DR. MUIZ BANIRE, SAN is dated 5th November, 2021 and filed on 8th November, 2021. The Appellant distilled 3 issues for determination as follows:
1. Whether the lower Court was right to have held that the 1st Respondent was an employee of the Appellant and the 2nd Respondent. (Distilled from grounds 1, 2, 3 and 7)
2. Whether the lower Court was right when it dismissed the Appellant’s objection that the Appellant is protected by the provision of Section 2(a) of the Public Officers Protection Act. (Distilled from ground 5).
3. Whether the damages of N150 Million awarded in favour of the 1st Respondent by the lower Court was excessive and incompetent. (Distilled from grounds 4 and 6)
The 1st Respondent’s Brief settled by JOSIAH O. OGUNWALE, ESQ dated 8th November, 2021 filed on the same day. The 1st Respondent formulated 3 issues for determination, as follows:
1. Whether the Honourable lower Court rightly held that the 1st Respondent was an employee of both Appellant and the 2nd Respondent at the lower Court. (Distilled from grounds 1 and 2)
2. Whether the lower Court was right in awarding the sum of N150,000,000 (One Hundred and Fifty Million) when the Appellant did not defend the N850,000,000 (Eight Hundred and Fifty Million) claimed by the 1st Respondent at the lower Court. (Distilled from grounds 3 and 4).
3. Whether Section 2 of the Public Officer Protection Act is applicable to contract of labour. (Distilled from grounds 5)
The 2nd Respondent’s Brief settled by DELE ADESINA (SAN) FCIARB dated 17th December, 2021 filed on the same day. The 2nd Respondent formulated 2 issues for determination, as follows:
1. Having regards to the Appellant’s pleadings, the evidence before the lower Court, as well as Section 22(1) of the Electric Power Sector Reform Act, whether the lower Court came to the right conclusion that the 1st Respondent was an employee of the Appellant and the 2nd Respondent. (Distilled from grounds 1, 2 and 3)
2. Whether the lower Court came to a right conclusion when it awarded the sum of N150,000,000.00 (one Fifty Million Naira) in damages. (Distilled from grounds 4 and 5).
Thereafter the Appellant filed a Reply to the 1st and 2nd Respondent’s brief dated 19th November, 2021 and 17th January, 2022 respectively.
APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that the trial Court was wrong to have held that the 1st Respondent was an employee of both the Appellant and 2nd Respondent at the same time rather, the 1st Respondent worked as an employee of the 2nd Respondent because it was the 2nd Respondent that served the 1st Respondent the disengagement letter. Continuing, the Appellant reproduced the holding of the trial Court at page 227 of the records of appeal to argue that the trial Court was wrong to conclude that the Appellant did not dispute the fact that the 1st Respondent was not an employee of the Appellant and by Exhibit C17, the Appellant disengaged the services of the 1st Respondent.
The Appellant reproduced paragraphs 5, 6, 7 and 20(d) & (e) of its statement of defence contained at pages 120 to 122 of the record of appeal to argue that the Appellant did not call any witness in view of the fact that the above averments were supported by documentary evidence already tendered by the 1st Respondent and the 2nd Respondent which are Exhibits C13, C14, C16, C17 and D1 and documentary evidence is the best form of evidence as held in S.S. GMBH V. T.D. IND. LTD (2010) 11 NWLR (PT. 1206) 589, AKINBISADE V. STATE (2006) 17 NWLR (PT. 1007) 184, DIVINE IDEAS LTD V. UMORU (2007) ALL FWLR (PT. 380) 1468, EZOMO V. N.N.B. PLC (2007) ALL FWLR (PT. 368) 1032 and GOVERNOR OF OGUN STATE V. MR. ADEGBOYEGA ADEBOLA COKER (2008) ALL FWLR (PT. 406) 1900, therefore, it was wrong for the trial Court to hold that the Appellant did not dispute the fact that the 1st Respondent was an employee of the Appellant.
The Appellant argued that the trial Court was wrong to hold that the Appellant did not dispute the fact that the 1st Respondent was not an employee of the Appellant because Exhibit C17 clearly showed that it was the 2nd Respondent that disengaged the services of the 1st Respondent and not the Appellant, for the reason that upon privatization of PHCN, the 2nd Respondent took over the core assets of the PHCN while he Appellant was purposely established to take over the non-core assets of PHCN, automatically, the 2nd Respondent took over the benefit and burden of PHCN. The Appellant urge the Court to resolve this issue in favour of the Appellant.
ISSUE TWO
The Appellant argued that the trial Court lacks the jurisdiction to entertain the instant suit on the ground that the instant action was not commenced by the 1st Respondent within the three months of the Appellant’s accident as required by Section 2(a) of the Public Officers’ Protection Act and OLAGUNJU & ANOR V. PHCN (2011) LPELR-2556(SC), INEC V. OGBADIBO LOCAL GOVT (2016) 3 NWLR (PT. 1498) 167, INEC V. ONOWAKPOKO (2018) 2 NWLR (PT. 1602) 134 and IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1. Continuing, the Appellant submitted that the Appellant is an agency of the Federal Government of Nigeria and has qualified to enjoy the protection of the Public Officers protection Act.
It is the submission of the Appellant that the pertinent question to asked is: when did the cause of action arose and when did the 1st Respondent institute the instant action in order to determine whether the instant action was commenced within the three months period as required by the Public Officers’ Protection Act and by a close examination of the record of appeal, it will reveal that the cause action arose on the 3rd of November, 2010 when the 1st Respondent suffered electric shock while the instant action was instituted on the 15th day of September, 2015 which is about 5 years after the cause of action arose, consequently, from the time the cause of action arose to the time of commencement of the instant action, the three months period has lapsed and as such, it deprives the lower Court of jurisdiction to entertain the instant suit, however, instead of striking out the Appellant’s name on the ground of lack of jurisdiction, the lower Court misdirected itself by holding that the 1st Respondent is an employee of the Appellant. The Appellant relied on NRMA V. JOHNSON (2019) 2 NWLR (PT. 1656) 247.
The Appellant submits that having established the fact that there was no contract of service between the 1st Respondent and the Appellant, the provision of Section 2(a) of the Public Officers’ Protection Act extinguishes the 1st Respondent’s right of action against the Appellant and as such, the lower Court lacked the jurisdiction to entertain the 1st Respondent’s matter as against the Appellant.
The Appellant urge the Court to hold that the instant suit was statute barred as against the Appellant and the trial Court lacked jurisdiction to entertain same and also resolve this issue in favour of the Appellant.
ISSUE THREE
In arguing this issue, the Appellant submits that assuming without conceding that the Appellant and the 2nd Respondent were the employers of the 1st Respondent, the award of damages of N150,000,000.00 awarded in favour of the 1st Respondent by the lower Court was excessive and incompetent because it is a well settled principle of law that where a statute has already made provisions on a subject matter, the common law principle will cease to apply and as such, common law principle will give way to the statutory provision as held in PATKUN IND. LTD V. NIGER SHOES LTD (1988) 5 NWLR (PT. 93) 138.
Continuing, the Appellant submitted that in awarding the monetary sum, the trial Court relied and adopted cases that applied the common law principle on negligence without resorting to the provisions of Employees’ Compensation Act 2010, Cap E7A Laws of Federation, 2010 which has already made provision for the quantum of compensation or damages to be paid to an employee for any injury sustained. The Appellant relied on Sections 7, 21, 22, 23, 24, and 25 of the Employees’ Compensation Act to submit that the Act has listed the percentage of disability against the type of injury sustained by an Employee and in the instant case, the accident that resulted in the 1st Respondent losing both hands has been provided for under Section 23 of the Act, therefore, the damages of N150 Million awarded in favour of the 1st Respondent without resort to the Employees’ Compensation Act is excessive and incompetent.
The Appellant urged the Court to resolve this issue in favour of the Appellant and allow this appeal.
1ST RESPONDENT SUBMISSION
ISSUE ONE
The 1st Respondent submits that he was an employee of both the Appellant and the 2nd Respondent as shown in Doc C18 and C19 at pages 137 and 138 which were letters sent to the 1st Respondent for severance benefit and disengagement by the Appellant and the 2nd Respondent and also both the Appellant and the 2nd Respondent paid off joint liability as shown in page 139. Continuing, the 1st Respondent contends that the Appellant equivocally admitted paragraph 1 and unequivocally admitted the averments in paragraph 7, 8, 12, 13, 14, 15, 16, 17 and 18 of the 1st Respondent Statement of Claim and the law is settled that facts admitted require no further proof as provided in Sections 75, 123 and 21 of the Evidence Act and the cases of OWOO V. EDET (2012) ALL FWLR (PT. 642) 1791, ATT. GEN NASARAWA V. ATT-GEN PLATEAU STATE (2012) ALL FWLR (PT. 630) 1262, ALLI V. ALESINLOYE (2000) FWLR (PT. 15) 2613 SC, UBA PLC V. JARGABA(2007) 11 NLWR (PT. 1045), AJEIGBE V. ODEDINA (1988) 1 NWLR (PT. 72) 584 SC, BFI GROUP V. BUREAU OF PUBLIC ENT (2013) ALL FWLR (PT. 676) 444 and OLUJINLE V. ADEAGBO (1988) 2 NWLR (PT. 75) 238.
According to the 1st Respondent, the Notice of Appeal before the Court has 5 grounds however, the Appellant relied on grounds 1, 2, 3 and 7 to formulate issue one as there is no ground 7 contained in the Notice of Appeal, therefore, the 1st Respondent urge the Court to strikeout issue one because Grounds of Appeal must not be formulated in abstract as held in KENNETH NDUKA AGBAKWURU & ANOR V. HON. RAPHAEL NWANNA IGBOKWE & ANOR (2012) NG SC, 6 and EGBE V. ALHAJI (1990) NWLR (PT. 128) 546. The 1st Respondent also urge the Court to resolve this issue in favour of the 1st Respondent.
ISSUE TWO
It is the argument of the 1st Respondent that the Appellant filed a statement of defence at the lower Court but failed to call witnesses to prove same nor offered any defence to the claims of the 1st Respondent and the law is trite that when such happens, it is deemed abandoned and Court cannot look for evidence for parties who have abandoned his pleadings as held in REMALO LTD V. N.B.N LTD (2003) 16 NWLR (PT. 846) 235, BUA V. DAUDA (2003) FWLR (PT. 172 1892, MORIYAMO ADESANYA V. A.O. ODUEWU & ORS (1993) 1 SCNJ 77 and BROAD LINE ENTERPRISES LTD V. MONTEREY MARITIME CORPORATION (1995) 10 SCNJ 1. The 1st Respondent submits that the effect of failure to call evidence by the Appellant in support of their case, is that the case of the 1st Respondent shall be accepted by the Appellant as held in MILITARY GOVERNOR OF LAGOS STATE V. ADEYIGA (2012) LPELR 783 SC, MIRCHANDANI & ANOR V. BABATUNDE PINHEIRO (2001) 3 NWLR (PT. 701) 557, OMOREGBE V. LAWANI (1981) 3 SC 108 and ODUOLA V. COKER (1981) 5 SC 197. The 1st Respondent urge the Court to uphold the sum of N850,000,000.00 (Eight Hundred and Fifty Million Naira Only) awarded by the trial Court.
Continuing, the 1st Respondent argued that the sum of N150,000,000.00 (One Fifty Million Naira) awarded by the lower Court was 17.6% of the claims of the 1st Respondent and it will serve the interest of justice to review the sum upwards by the Court because the injury sustained by the 1st Respondent is unceasing and continuance for life. The 1st Respondent relied on A.G. RIVER STATE V. A.G. BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) 123. Furthermore, the 1st Respondent further argued that the Appellant did not contest issue of damages at the lower Court and facts admitted needs no proof as held in OWOO V. EDET (SUPRA) and IGHRERINIOVO V. S.C.C NIGERIA LTD (2013) ALL FWLR (PT. 700) 1240 and the civil jurisdiction of the National Industrial Court in Nigeria has being settled by the provision of Section 243(4) of the Constitution of the Federal Republic of Nigeria, 1999.
As noted earlier, the 1st Respondent submits that the Notice of Appeal before the Court has 5 grounds however, the Appellant relied on grounds 4 and 6 to formulate issue three as there is no ground 6 contained in the Notice of Appeal, therefore, the 1st Respondent urge the Court to strikeout issue three because grounds of Appeal must not be formulated in abstract as held in KENNETH NDUKA AGBAKWURU & ANOR V. HON. RAPHAEL NWANNA IGBOKWE & ANOR (2012) NG SC, 6 and EGBE V. ALHAJI (1990) NWLR (PT. 128) 546. The 1st Respondent urge the Court to resolve this issue in favour of the 1st Respondent.
ISSUE THREE
The 1st Respondent defined an employee as provided in Section 73 of Employee Compensation Act, 2010 to submit that the Appellant cannot claim protection under the Public Officer Protection Act, until the payment under Section 23 of Employee Compensation Act is paid which is fraudulently withheld by the Appellant. The 1st Respondent referred the Court to ESSIEN ESIEN OBOG & 7 ORS V. NIGERIA SECURITY and CIVIL DEFENCE CORPS-SUIT NO. NICN/CA/106/2012 (UNREPORTED), AREMO II V. ADEKAYE (2004) 13 NWLR (PT. 891) 572, FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162, OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD (2007) NWLR (PT. 1038) 66, ALAPIKI V. GOVERNMENT OF RIVER STATE (1991) 8 NWLR (PT. 211) 575 and SALAKA V. LEDB (1953) 20 NLR 169. Continuing, the 1st Respondent argued that Section 2 of Public Officer Protection Act does not apply in case of recovery of land, breach of Contract, claim for work and labour done, contract of employment etc.
According to the 1st Respondent, the statute of limitation is not applicable to claims made under the contract of service, as held in NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS V. AJIBOLA JOHNSON & 10 ORS (2019) 2 NWLR (PT. 1656) 247, OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD (2007) 9 NWLR (PT. 1038) 66 and NIGERIAN PORT AUTHORITY V. CONSTRUZIONI GENERAL FARSURA COGEGAR SPA & ANOR (1974) ALL NLR (PT. 2) 463. Furthermore, the 1st Respondent urge the Court to resolve the issues raised by the Appellant against the Appellant and in favour of the 1st Respondent and to dismiss the appeal with substantial cost for being an academic exercise with no substantial argument in support as held in LAWAL V. ATT.GEN KWARA STATE (2012) ALL FWLR (PT. 618) 958.
2ND RESPONDENT SUBMISSION
PRELIMINARY POINT
The 2nd Respondent relied on IFEGWU V. UBN (2011) 16 NWLR (PT. 1274)555, LAGOS CITY COUNCIL V. AJAYI (1970) 1 ALL NLR 291, ELIOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (PT. 14) 47 and BUHARI V. OBASANJO (2003) 17 NWLR (PT. 850) 587 to submit that the 2nd Respondent is aware of the traditional role of a Respondent in an appeal, however, in this instant appeal, the 1st Respondent is seeking reliefs jointly and severally against the Appellant and the 2nd Respondent in which the trial Court granted same and the 2nd Respondent also filed its own appeal against the decision of the trial Court in Appeal NO.:CA/IB/155/2021 BETWEEN IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC V. OLUWADAMILARE PIUS ONIFADE & ANOR, therefore, this preliminary statement seeks to justify the unique position taken by the 2nd Respondent which is contrary to the traditional role of a Respondent to defend the judgment of the lower Court, hence, all the argument contained in the 2nd Respondent’s brief cannot be aimed at defending the judgment of the lower Court.
ISSUE ONE
In arguing this issue, the 2nd Respondent submits that contrary to holding of the trial Court at pages 227, the 1st Respondent was not an employee of the 2nd Respondent, therefore the finding of the lower Court is perverse and ought to be set aside. Continuing, the 2nd Respondent argued that under cross-examination the 1st Respondent admits to not have been an employee of the 2nd Respondent, therefore the trial Court ought to have acted upon the admission and to hold that the 1st Respondent is not an employee of the 2nd Respondent because the 1st Respondent might have been a staff of Power Holding Company of Nigeria (PHCN) but his engagement was terminated before the privatization of the PHCN to the 2nd Respondent. The 2nd Respondent reproduced the averment of the 1st Respondent where he admits to not been an employee of the 2nd Respondent and submits that it constitutes an admission which the lower Court ought to have acted on as held in INNTRACO V. UBN (2020) 11 NWLR (PT. 1734) 138, ADUSEI V. ADEBAYO (2012) 3 NWLR (PT. 1288) 534, UBA V. JARGABA (2007) 11 NWLR (PT. 1045) 237, NAS LTD V. UBA PLC (2005) 14 NWLR (PT. 945) 421, ALAHASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) 230, THE ESTATE OF OLUSOLA POPOOLA V. ACCESS BANK PLC (2020) 16 NWLR (PT. 1751) 539, GAJI V. PAYE (2003) 8 NWLR (PT. 823) 583, MTN V. CORPORATE COMM. INVS LTD (2019) 9 NWLR (PT. 1678) 427 and SECTION 20 and 123 of the Evidence Act, 2011. According to the 2nd Respondent, the evidence elicited from the 1st Respondent supported the case of the 2nd Respondent as pleaded, therefore the decision of the trial Court was wrong.
It was the contention of the 2nd Respondent that the conclusion reached by the trial Court in respect of the Appellant’s liability to the 1st Respondent was correct because when PHCN was privatized, all the staffs of PHCN were subsequently disengaged and the Appellant is the specific entity created for the purpose of assuming all employee liabilities of PHCN after the privatization, this fact was contained in the pleadings and evidence before the trial Court and also enumerated as the statutory functions and duties of the Appellant in the Memorandum and Article of Association of the Appellant as contained at pages 61, 67-70 and 120-124 of record of Appeal. Continuing, the 2nd Respondent argued that the decision of a Court must be predicated on the facts as contained in the pleadings and evidence and evaluation of evidence which entails consideration of both oral and documentary evidence before reaching a decision must be carried out with efficacy and probative value as held in FREDICK V. IGBEKWE (2019) 17 NWLR (PT. 1702) 467, ADETULA V. AKINYOSOYE (2017) 16 NWLR (PT. 1592) 492, FAGUNWA V. ADIBI (2004) 17 NWLR (PT. 903) 544, OGUNDALU V. MACJOB (2015) 8 NWLR (PT. 1416) 96, B.L.L.S COMPANY LIMITED V. M.V. WESTERN STAR (2019) 9 NWLR (PT. 1678) 489, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 and AMAEFULE V. STATE (2012) LPELR-7943.
According to the 2nd Respondent, had the Court performed its evaluation function, it would have considered Section 8 and 10 of the Electric Power Sector Reform Act, as well as Exhibit D1, to hold that the 1st Respondent was not entitled to any compensation in light of the fact that, in privatization of PHCN, the core assets were acquired and transferred to several distribution companies including the 2nd Respondent and no single pre-existing liability was transferred to any of the distribution companies, therefore, the holding of the trial Court which places liability on the 2nd Respondent is perverse and should be set aside. The 2nd Respondent urged the Court to resolve this issue in favour of the 2nd Respondent.
ISSUE TWO
The 2nd Respondent submits that the order of the trial Court for damages ought to have been directed solely at the Appellant and after reproducing the reliefs sought by the 1st Respondent at the lower Court contained at pages 98-106 and 231-232 of the Record of appeal, the 2nd Respondent argued that there is no basis for the quantum of damages awarded the 1st Respondent because it was not predicated on the specific relief sought by the 1st Respondent, therefore the decision of the trial regarding the award of damages is grossly perverse as held in AFRICAN NEWSPAPERS NIG. PLC V. USENI (2015) 3 NWLR (PT. 1447) 464, JAMES V. MID MOTORS LTD (1978) 11-12 SC 31, WILLIAMS V. DAILY TIMES (1990) 1 NWLR (PT. 124) 1, GUARDIAN NEWSPAPERS LTD V. AJEH (2011) 10 NLWR (PT. 1256) 574, AFRICAN NEWSPAPERS OF NIGERIA V. CIROMA (1996) 1 NWLR (PT. 423) 156, USONG V. HANSEATIC INT’L LTD (2009) 11 NWLR (PT. 1153) 522, BALA V. BANKOLE (1986) 3 NWLR (PT. 27) 141, UBN LTD V. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT. 421) 558, UMOETUK V. UBN PLC (2001) FWLR (PT. 81) 1849 and EBERE V. ABIOYE (2005) FWLR (PT. 264) 945.
According to the 2nd Respondent, the 1st Respondent’s reliefs at the lower Court was a mixture of general and special damages and the trial Court awarded a lump sum without clarification as to which reliefs were granted and which were refused and also, the award was not predicated on any evidence tendered because no reference was made to any evidence before the trial Court. The 2nd Respondent relied on NCC V. MOTOPHONE LTD (2019) 14 NWLR (PT. 1691) 1. It was the argument of the 2nd Respondent that failure to specify which of the two reliefs were granted amounts to amalgamation which signifies he granted all the reliefs sought but in lesser sums and thus amounts to double compensation of the same injury as held in BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) 253, TSOKWA MOTORS LTD V. UBA (2008) 2 NWLR (PT. 1071) 347, ARTRA IND LTD V. NBCI (1998) 4 NWLR (PT. 546) 357, ARIZONS TRADING & ENGINEERING CO., LTD V. MILITARY GOVT, OGUN STATE (2009) 15 NWLR (PT. 1163) 26.
Furthermore, the 2nd Respondent contends that the trial Court awarded the reliefs arbitrarily without relying on any existing laws and failure to observe the Act of the National Assembly in favour of fixing the sum of damages amounts to perversity. The 2nd Respondent referred the Court to SLYVESTER V. OHIAKWU (2014) 5 NWLR (PT. 1401) 467 and STANBIC IBTC V. FRCN (2020) 5 NWLR (PT. 1716) 91.
The 2nd Respondent urged the Court to resolve this issue in favour of the 2nd Respondent and set aside the award of damages awarded by the trial Court.
APPELLANT’S REPLY TO 1ST RESPONDENT’S SUBMISSION
In reacting to the 1st Respondent arguments, the Appellant submits that the fact that one of the grounds upon which an issue for determination was formulated does not exist in the notice of appeal does not make the issue formulated incompetent as to warrant the striking out the issue provided there are other ground(s) to sustain the issue so formulated as held in HALILCO (NIG) LTD V. EQUITY BANK (NIG) LTD (2013) 11 NWLR (PT. 1367) 1, therefore, grounds 6 and 7 which are grounds not contained in the Notice of Appeal cannot make Issues 1 and 3 incompetent. Continuing, the Appellant submits that although the Appellant did not call any witness, the documentary evidence tendered by the 1st and 2nd Respondents supports the averment in the Appellant’s statement of defence such that it became unnecessary for the Appellant to lead oral evidence as held in CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512 and SOCIO-POLITICAL RESEARCH DEV. V. MIN., FCT (2019) 1 NWLR (PT. 1653) 313.
According to the Appellant, the 1st Respondent urged the Court to award the N850,000,000.00 against the N150,000,000.00 awarded by the trial Court, however, the 1st Respondent lacks the competence to canvass this argument in view of the fact that the 1st Respondent does not have a cross-appeal before the Court on the award of N150 Million as to warrant the 1st Respondent to raise this argument. The Appellant relied on UDOM V. MICHELETTI & SONS LTD (1997) 8 NWLR (PT. 516) 187 and urge the Court to discountenance the 1st Respondent’s argument in this regard.
APPELLANT’S REPLY TO 2ND RESPONDENT’S SUBMISSION
The Appellant urged the Court to discountenance the argument of the 2nd Respondent regarding the employment status of the 1st Respondent because Exhibit C17 which was tendered by the 1st Respondent obviously connotes that the 1st Respondent was engaged by the 2nd Respondent, otherwise, the 2nd Respondent would not have disengaged the 1st Respondent from its service and the oral evidence of the 1st Respondent cannot contradict Exhibit C17 because it is trite law that oral evidence cannot be used to contradict documentary evidence as provided in Section 128(1) of the Evidence Act, 2011, OBIAZIKWOR V. OBIAZIKWOR (2008) 8 NWLR (PT. 1090) 551, AGBAREH V. MIMRA (2008) 2 NWLR (PT. 1071) 378 and SAVANNAH BANK (NIG) LTD V. SALAMI (1996) 8 NWLR (PT. 465) 131.
Continuing, the Appellant submits that 2nd Respondent relied on Clause 3(1)(b) of Exhibit D1-6 (Memorandum of Association) to argue that the Appellant was created to assume and manage liabilities of PHCN staff after privatization, however, there is nothing in the said Clause 3(1) (b) of Exhibit D1-7 that stated that because Clause 3(1) (b) of Exhibit D1-6 specifically limits the Appellant’s liability to only pension liabilities of the employees of PHCN and does not talk about damages arising from injuries sustained by the employees and expressio unis est exclusio alterius is applicable in this instant as held in PDP V. INEC (2014) 17 NWLR (PT. 1437) 525, A.G. LAGOS STATE V. A.G. FED (2014) 9 NWLR (PT. 1412) 217 and JEV. V. IYORTYOM (2015) 15 NWLR (PT. 1483) 484. The Appellant further submits that there was nothing for the Appellant to deny in the 2nd Respondent’s Statement of Defence since the 2nd Respondent inherited the staff of the PHCN inclusive of the 1st Respondent otherwise the 2nd Respondent would not have disengaged the 1st Respondent from its services and the admission of the 2nd Respondent in paragraph 3 of the 2nd Respondent’s Statement of Defence is an admission against interest which is admissible against the 2nd Respondent. The Appellant referred the Court to OFFODILE V. OFFODILE (2019) 16 NWLR (PT. 1698) 189.
The Appellant urge the Court to discountenance the 2nd Respondent’s argument in this regard.
RESOLUTION
I have considered the Notice of Appeal, the Records of Appeal and the respective briefs of learned Counsel in the appeal and deliberately, the Court shall adopt the issues donated by the Appellant to allow for a full resolution of all areas of complaint raised by the Appellant. In doing so the Court notes that the Appellant raised a jurisdictional issue as issue 2 where he questioned the refusal of the lower Court to apply the Public Officer Protection Act to the benefit of the Appellant. This obviously raises a jurisdictional issue because once a suit is caught by the provisions of the Public Officers Protection Act, then the Court is divested of its jurisdiction to determine the matter, see AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT. 504) 237 wherein the Court held thusly:
“It is trite that the issue of whether or not an action is statute-barred is one touching on the jurisdiction of the Court. For once an action has been found to be within limitation period although a plaintiff still has his cause of action, his right of action that is legal right to prosecute that action has been taken away by statute. In that circumstance, no Court has the jurisdiction to entertain his action.”
Generally, the scope and applicability of the Public Officers Protection Act was discussed in the case of KWARA STATE PILGRIMS WELFARE BOARD V. BABA (2018) LPELR-43912(SC) and Section 2(a) of the Public Officers Protection Act provides as follows: –
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provision 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 continuance of damage or injury, within three months next after the ceasing thereof…”
In HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547 AT 591 the apex Court while considering the scope of Section 2(a) of the Public Officers Protection Act, 1990, said: –
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal jurisdiction, he cannot claim the protection of the provisions of the public officers Protection Act.”
The facts to be produced must exist to enable the Court find the absence of semblance of legal jurisdiction, otherwise, once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same. It is in essence a limitation provision with the same effect as a limitation Law.
The whole purpose of the Limitation Act is to apply to a person who has good causes of action which they could if so disposed, enforce, and to deprive them of power of enforcing them after they have laid by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use. The apex Court, in the case of AJAYI V. ADEBIYI (2012) ALL FWLR (PT. 634) 1, (2012) 11 NWLR (PT. 1310) 137 AT 169, on the essence of statute of limitation stated as follows: –
“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings, cannot be properly and validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had passed. An action which is not brought within the prescribed period, offends the provision of the law and does not give rise to a cause of action. The yardstick to determine whether an action is statute barred are: –
(a) The date when the cause of action accrued;
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”
In AMADI V. I.N.E.C. (2012) ALL FWLR (PT. 621) 1415, (2012) 4 NWLR (PT. 1345) 607, the apex Court held that the conspicuous effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Also, that the Court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form.
The question here is whether the 1st Respondent failed to bring his action within the time stipulated by law. Then he will be confronted by Section 2(a) of the Public Officers Protection Act, Cap. P14, Laws of the Federation, 2004.
The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2(a) of the Act. In all action, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his right, or has led the opposite party responsible for or guilty of such infringement to believe that he has left or abandoned his right. See on this, OSUN STATE GOVERNMENT V. DALAMI (NIG.) LTD (2007) ALL FWLR (PT. 365) 438, (2007) 9 NWLR (PT. 1038) 66; CHIGBU V. TONIMAS (NIG.) LTD (2006) ALL FWLR (PT. 320) 984, (2006) 9 NWLR (PT 984) 189; SHETTIMA V. GONI (2011) 18 NWLR (PT. 1279) 413, (2012) ALL FWLR (PT. 609) 1007; P.D.P. V. C.P.C. (2011) ALL FWLR (PT. 603) 1786, (2011) 17 NWLR (PT. 1277) 485.
The Court in HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007, (2010) 17 NWLR (PT. 1223) 547 gave some exceptions and held that:
“Where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of Section 2 (a) of the Public Officers Protection Act as to three months’ time limit for commencement of action against him.
The law is settled that it is the duty of the plaintiff to adduce evidence or facts to prove that the officer acted outside the scope of his authority or without semblance of legal jurisdiction. The facts to be produced must exist to enable the Court find the absence of semblance of legal jurisdiction, otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time-barred and the Court will have no jurisdiction to entertain same.
The law, however, is that the Public Officers Protection Act does not apply to breaches of contracts, claims for work or labour done and recovery of land. See WEMA SECURITIES AND FINANCE PLC V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PART 1484) PAGE 913 AT 138 JSC and F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PART 798) PAGE 162 AT 197.
A perusal of the writ of Summons and the statement of claim shows that the cause of action of the Respondent lies in tort of negligence and not labour or employment related. It purportedly arose in the course of employment but not a labour matter. The alleged Negligence is the failure or omission to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. See ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1 and ABUBAKAR V JOSEPH (2008) 13 NWLR (PT. 1104) 304.
There are indeed exceptions to the applicability of the Public Officers Protection Act such as cases relating to specific contracts or the defendant acting outside the colour of his office.
Section 2(a) of the Public Officers Protection Act provides therein protection for a public officer in respect of any action, prosecution or other proceedings for any neglect or default in the execution of any Act, Law, duty or authority by such an officer. The word neglect in its verb form means,
“To fail to take care of somebody/something.” In its noun form it means; “The fact of not giving enough care or attention to something/somebody.” See Oxford Advanced Learner’s Dictionary 7th Ed. P. 981. The complaint of the respondent before the trial Court is in essence that the 2nd appellant did not give enough or the required attention to his driving in the cause of executing his public duty which resulted in damage to him and his vehicle. This brings his case within the purview of Section 2(a) of the Public Officers Protection Act.
In Ekemode v Alausa (1961) 1 ALL NLR (Pt. 1) 135, 137-138, Charles J, stated that;
“…the effect of Section 2 of the Public Officers Protection Ordinance appears to me as follows:-
(i) An act or omission on the part of a person to whom the section relates is within the section if it is proved that it was done or it occurred:-
(a) In the course of commencing to discharge, or in the course of discharging a public duty, or
(b) In the course of doing something incidental to the discharge of such a duty, or
(c) In the course of commencing to exercise, or in the course of exercising an authority or power conferred for a public purpose, or
(d) In the course of doing something incidental to the exercise of such authority or power.
(ii) An act on the part of a person to whom the section relates is also within the section if it is proved that it, by itself was incidental to the discharge of such a duty, or the exercise of such an authority or power, as above mentioned.
(iii) A total failure to discharge any duty or to exercise any authority or power as above mentioned on the part of a person to whom the section relates is also within the section.” I agree with His Lordship. The case of the Respondent falls within category (i) (a) above. The trial Court was therefore not right in holding that the Appellant are not protected by the Public Officers Protection Act on the basis that the case of the respondent borders on criminality. The contention of the respondent is that the appellants acted outside the colour of their office and in gross abuse of office. The Respondent proffered the same argument before the trial Court but that Court did not decide the point even though it mentioned it in its summary of the arguments of counsel. It was therefore not a part of the ratio decidendi of the trial Court. It is my view that to be able to raise and argue that point in this appeal as it was not raised in any of the grounds of appeal, the respondent ought to have filed a respondent’s notice to contend that the decision of the trial Court be affirmed on that ground pursuant to Order 9 Rule 2 of the Court of Appeal Rules. See GWEDE V. INEC (2014) 18 NWLR (PT. 1438) 56, 88. The fact that he is alleged to have driven negligently or recklessly does not amount to abuse of office or acting outside the colour of his authority. See Lagos City Council v Ogunbiyi supra and Obiefuna v Okoye (1964) NMLR 39, 41.
Having listed the circumstances where the provision does not apply, the case of the 1st Respondent was strictly rooted in common law negligence as clearly reflected by paragraphs 41 to 43 of the statement of claim at pages 9-10 of the Records of Appeal. Negligence defined above is the failure or omission to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. See ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1 AND ABUBAKAR V JOSEPH (2008) 13 NWLR (PT. 1104) 304. The claim therefore is not a pure employment claim because the reliefs are not rooted in the letter of employment. The claim in negligence that is founded on employment will arise from the Employee’s Compensation Act. The manner the 1st Respondent approached his claim here is the general claim in negligence meanwhile it arose from the work place and in the course of employment. It is therefore caught by the provisions of Section 2 of the Public Officers Protection Act because the 1st Respondent alleged that there was a neglect of duty or default by the Appellant and 2nd Respondent in the course of duty. These are the situation that fall under the application of the Act. I find support in the case of in OBIEFUNA v. OKOYE (1964) NMLR 39, 41 wherein the apex Court held thusly:
“…Public Officers Protection Ordinance, Section 2 of which reads as follows:-
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Ordinance or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, 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.” Per TAYLOR, J.S.C
I agree with the Appellant that the trial Judge erred in holding that the Act does not apply. It does and the 1st Respondent having not initiated the action within the time allowed is caught by the Public Officers Protection Act and consequently the Court lack jurisdiction and the suit should have been struck out.
I resolve Issue Two in favour of the Appellant.
Ordinarily, the Court could end determination at this stage but on the admonition of the apex Court in the case of OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR-2476 (SC) thusly:
“…It is the duty of a Court, whether of first instance or appellate to consider all issues that have been joined by parties and raised before it for determination.”
Even though this is a trial Court with regards NICN cases, the Court shall proceed to determine the other issues donated for determination by the Appellant in the interest of Justice.
ISSUE ONE
Whether the lower Court was right to have held that the 1st Respondent was an employee of the Appellant and the 2nd Respondent.
The claim of the 1st Respondent was that he was an employee of the Appellant and the 2nd Respondent. Generally, employment is a contract or an agreement between parties, I had cause to describe it in the case of MAINSTREET BANK REGISTRARS LTD V. UKANDU (2017) LPELR-43646(CA) as follows:
“Contract of employment is founded on the twin pillars of services and wages, it is on these that a contract of employment rest. A contract of employment is either grounded in statute or common law in which case the employment letter stipulates the terms of contract. The apex Court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIG) LTD & ORS (2008) LPELR-3052 (SC) described contract of employment in the following way:
“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and the other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap 198) LFN, 1990.”
It is also settled that there are different types and categories of employment as espoused by the apex Court in the case of LONGE VS. FBN PLC (2010) 6 NWLR (PT. 1189) 7, thusly:
“…every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages benefits are usually contained in the expressed contract of service or implied into it by common law and custom. The nature of employment generally affect the terms of the contract of employment. There are three categories of contracts of employment as follows: (a) Purely master and servant relationship, (b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavour. In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract. In a contract with statutory flavour – the employment is protected by statute. In the event of termination of employment with statutory flavour, strict adherence must be had to the statute creating the employment for statutory provisions cannot be waived.”
The lower Court found that the 1st Respondent was an employee of the Appellant and the 2nd Respondent and the Appellant questions that finding because the 1st Respondent couldn’t have been working for both companies at the same time. The Appellant was incorporated to take over non-core liabilities of the holding company (PHCN) during the period of unbundling and it was provided for by the Electric Power Reform Act, see Section 8 of the Act.
The fact is that there was no liability or pending claim against PHCN when liabilities were handed over to the Appellant. It is also provided in the Act that a time limit was set for liabilities and time within which to initiate any failing which no claim can be recognized under the law against the holding company or any successor company like the Appellant and 2nd Respondent. Assuming and for the sake of argument that the Public Officers Protection Act does not apply to this case, the provision of the Electric Power Reform Act will catch up with the claim because it was initiated long after the transition period allowed by the Act concerning claims against the holding company and successor companies. I adopt my findings in the sister appeal- IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC V OLUWADEMILADE PIUS ONIFADE & ANOR delivered earlier today in Appeal No. CA/IB/155/2021 on this point.
Therefore, the question of the 1st Respondent being an employee has no effect and in any case, he admitted he was disengaged before the Appellant and the 2nd Respondent came into existence and he was not part of the liability handed over to the Appellant and was not re-engaged by the 2nd Respondent, the Exhibits relied upon have nothing to do with the 2nd Respondent because it was issued by IBEDC and not IBEDC PLC, there is a big difference between the two and it is founded in the Electric Power Reform Act.
Consequently, the finding that the 1st Respondent was the employee of the Appellant and 2nd Respondent was erroneous and faulty. The 1st Respondent was not the employee of the Appellant and the 2nd Respondent when the injury was caused and the claim was initiated because he had been disengaged and he admitted that himself. He cannot stretch his employment beyond the date he was disengaged which was before the listing of liabilities and handing over to the Appellant and before the establishment of the 2nd Respondent. The fact is that the 1st Respondent failed to institute his claim within the period allowed by the Act and when the holding company was still intact and before the unbundling. I find that the 1st Respondent was not an employee of the Appellant and 2nd Respondent. The lower Court erred.
ISSUE THREE
Whether the damages of N150 Million awarded in favour of the 1st Respondent by the lower Court was excessive and incompetent.
The Appellant argued that assuming without conceding that the 1st Respondent was an employee of the Appellant and the 2nd Respondent, the award of damages was excessive and incompetent.
The lower Court upon a finding that the Appellant and the 2nd Respondent are liable in negligence awarded the sum of N150 Million as damages. Ordinarily, the award of damages is discretionary and the trial Court determines the quantum of damages to award depending on the circumstances of the case, OYENEYIN & ANOR V. AKINKUGBE & ANOR (2010) LPELR-2875(SC) wherein the apex Court held thusly:
“Generally the trial Court has discretion as to the quantum of damages it would award in a claim of damages. The assessment does not depend on any legal rules- but the discretion of Court. An appellate Court will not interfere with an award of damages by a trial Court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate Court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558 Solanke v. Ajibola (1969) 1 NMLR pg. 45 Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188 Thompson v. Adefope (1961) 1 ANLR Pg. 322 ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653.” Per ADEKEYE ,J.S.C
The appellate Court ordinarily cannot interfere except if certain conditions exist, the exceptions were stated in the case of BORNO STATE URBAN PLANNING & DEVELOPMENT BOARD MINISTRY OF LAND AND SURVEY, BORNO STATE & ANOR V. BAMS INVESTMENT (NIG) LTD (2017) LPELR-43290(CA) which held:
An appellate Court will only interfere where it is shown that (i) the trial Court acted under a mistake of law or upon some wrong principle of law; or (ii) the award is arbitrary; or (iii) the amount awarded is so extremely high or low as to make it, in the judgment of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; or (iv) there was a wrong exercise of discretion in the award; or (v) the trial Court acted in disregard of principles of law; or (vi) the trial Court acted under a misapprehension of fact, or (vii) the trial Court took into account irrelevant matters or did not take account of relevant matter; or (viii) injustice will result if the appellate Court does not interfere – Usang Vs Hanseatic International Ltd (2009) 11 NWLR (PT. 1153) 522, Oduwole Vs West (2010) 10 NWLR (PT. 1203) 598, Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (PT. 1256) 574, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (PT. 1411) 166. The onus is on the appellant seeking the interference of the appellate Court in the award of damages to establish any one of these factors to justify such interference – Nigerian Bottling Co. Ltd Vs Ubani (2014) 4 NWLR (pt 1398) 421.” Per ABIRU ,J.C.A in (Pp. 44-45 paras. C)
The Appellant herein argued that the lower Court applied common law principles in awarding damages as compensation in disregard of statutory provisions and contrary to the position of law settled in PATKUN IND. LTD V NIGER SHOES LTD (1988) 5 NWLR (Pt. 93) 138 at 152 where the Court held where the statutory provision is in conflict or differ from common law, the common law gives place to statute. In this case, the lower Court disregarded the provisions of the Employees’ Compensation Act which is specific on quantum of damages in respect of injury sustained at the place of work. Section 21 and 22 of the Employees’ Compensation Act provides for compensation for permanent injury and it says thus:
“21(1) Subject to this Act, if a permanent total disability results from the injury of an employee, the board shall pay to the employee compensation that is a periodic payment equal to 90 per cent of the remuneration of the employee.
(2) The compensation awarded under this section shall be payable monthly.
22(1) Subject to this Act, if a permanent partial disability results from the injury of the employee, the Board shall-
a. Estimate the impairment of earning capacity from the nature and degree of the injury; and
b. Pay the employee’s compensation that is a periodic payment equal to 90 per cent of an estimate of the loss of remuneration resulting from the impairment.
(2) The compensation referred to in sub-mission of this section shall be determined and calculated in accordance with the second Schedule to this Act.
(3) The Board may, by the regulations published in the Federal Gazette, revise or amend the second schedule to this Act.
(4) Subject to this Act, if-
(a) a permanent partial disability results from the injury of employee; and
(b) The Board makes a determination under Subsection (5) of this Section with respect to the employee.
The board may pay the employee compensation with a periodic payment that is equal to ninety percent of the difference between the remuneration of the worker before the injury and whichever of the following amounts the Board considers better represents the loss of earnings or the employee the remuneration that-
i. The employee is earning after the injury;
Or
ii. The Board estimates the employee is capable of earning in a suitable occupation after the injury.
(5) A payment may be made under Subsection (4) of this Section only if the Board determines that the combined effect of the occupation of the employee at the time of the injury and the disability resulting from the injury is so exceptional that an amount determined under Subsection (1) does not appropriately compensate the employee for the injury.
(6) …
(7) Where permanent partial disability results from the injury, the minimum compensation awarded under this section shall be calculated in the same manner as provided by Section 24 of this Act for the temporary total disability but to the extent only of the partial disability.
(8) Where the employee has suffered a serious and permanent disfigurement which the Board considers is capable of impairing the employee’s earning capacity, a lump sum in compensation may he paid, although the amount the employee was earning before the injury has not been diminished.”
The above is proof that the Act provides for compensation and how to compute the compensation in the case of permanent injury, the type alleged by the 1st Respondent. Those are the statutory provisions the lower Court should have considered in awarding compensation.
The 1st Respondent initiated his claim under common law and not Employees’ Compensation ACT where injuries are categorized and different formulae provided for compensation. Under the Act, the quantum of compensation is clear and not at the discretion of the Judge. However, the learned trial Judge did not advert his mind to the legislation and used his discretion at common law to fix compensation at N150 Million Naira.
The Court in OKE V. MAJA (2013) LPELR-19908(SC) stated that the law is well settled that an Appellate Court is empowered to interfere with the amount of damages awarded by the trial Court where it is established that in making the award the Court had proceeded on wrong principles or that the award is unjust, See: EJOWHOMU V. EDOK-ETER LTD. (1986) 5 NWLR (PART 39) 1 AT 25; OVERSEAS CONSTRUCTION LTD. V. CREEK ENT. LTD. (1986) 3 NWLR (PART 13) 407 AT 420; OSUJI V. ISIOCHA (1989) 3 NWLR (PART 111) 623 AT 636-637.
My lord KEKERE-EKUN, J.S.C in B.B APUGO & SONS LTD V. OHMB (2016) LPELR-40598(SC) said where the amount awarded is also so high or so low as to make it an entirely erroneous estimate of the damage suffered by the Claimant, the Appellate Court can interfere. See S.P.D.C. NIG. LTD. V. TIEBO VII (2005) 9 NWLR (PT. 931) 439, where it was held that the evidence proffered must be qualitative and credible such as lends itself to quantification and that each case depends on its own facts and circumstance.
It is on the basis of the wrong principles applied by the trial Court through its failure to consider and apply the legislation known as Employees Compensation Act and instead applied common law principles contrary to the holding of the Court in PATKUN IND. LTD V NIGER SHOES LTD (1988) 5 NWLR (Pt. 93) 138 at 152 where the Court held: “where the statutory provision is in conflict or differ from common law, the common law gives place to statute”. Since the Act was subsisting, the Court of law, should have used the scale of assessment in the Act to determine the measure of compensation. Having failed to do that, the learned Judge proceeded on the wrong principle awarded excessive damages and therefore, the Court must interfere and because it is contrary, to Legislation, the award is set aside, this is in the absence of evidence relevant to the assessment under the Employee’s Compensation Act.
Consequently, I resolve this issue in favour of the Appellant and find that damages awarded was against the Law.
The resolution was in obeisance to the admonition of the apex Court to still resolve issues after a finding that the Court lacks jurisdiction to have considered the claim. The resolution of issues 1 and 3 above are in the obeisance to the call for the Court to resolve all issues.
Flowing from above resolution, all issues having been resolved in favour of the Appellant, the claim of the 1st Respondent is dismissed. The appeal is meritorious and is hereby allowed. The judgment of the lower Court delivered on the 19th March, 2019 by HON. JUSTICE J.D. PETERS is hereby set aside.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.
I agree that this appeal is meritorious and I also allow it. I abide by the consequential orders made by my learned brother.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance, the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.
I completely agree with him that the 1st Respondent’s case is caught by the provisions of Section 2 of the Public Officers Protection Act.
It is trite that an action instituted after the expiration of the prescribed period in the Act is statute-barred. The implication is that a Claimant who ordinarily would have had a cause of action by judicial process automatically loses that right to approach the Court to ventilate his grievance. See ASABORO VS. PAN OCEAN OIL CORPORATION NIGERIA LIMITED (2017) 7 NWLR (PT. 1563)42; CHIGBU VS. TONIMAS NIGERIA LIMITED (2006) 9 NWLR (PT. 984)189; P.N. UDOH TRADING COMPANY LIMITED VS. ABERE (2001) 11 NWLR (PT. 723) 114.
The Appellant’s right of action to ventilate his grievance against non-payment of compensation for injury sustained while working for Power Holding Company of Nigeria was extinguished because he did not commence the action within the time allowed to do so by the Public Officers (Protection) Act.
It is for the foregoing and the more detailed reasons in the leading judgment that I too make an order allowing the appeal for being meritorious.
Appearances:
Oluwaseun Sofonwa (holds the brief of Adebayo Badmus) For Appellant(s)
J. O. Ogunwale, with him, L. O. Raheem – for 1st Respondent
Ademola Adesina, with him, I. Obasunloye and N.O. Ishola – for 2nd Respondent For Respondent(s)
