IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 11, 2018
SUIT NO. NICN/LA/79/2017
BETWEEN
Steve C. Okebu Esq
Claimant
AND
1. Delta State Judicial Service Commission
2. Attorney General of Delta State
Defendants
REPRESENTATION
G. A. Okebu, with G. C. Ifenkwe, for the claimant.
Mrs J. O. Ajayi, Chief State Counsel and Miss O. Ajuwaghan, Principal State Counsel,, for the defendants.
JUDGMENT
1. The claimant filed this suit on 16h February 2017 by way of a complaint and the accompanying originating processes against the defendants praying for:
(i) A declaration that the demotion of the claimant based on the recommendation of a Board of Inquiry is ultra vires the 1st defendant’s statutory powers having failed to comply with the provisions of Rule 04303 of the Delta State Public Service Rules and a further denial of fair hearing.
(ii) A declaration that the refusal/neglect of the 1st defendant to avail the claimant with the Annexures and necessary documents that accompanied the petition of Pa Resident Agbofodoh is a breach of fair hearing.
(iii) A declaration that the continued use of the demotion as recommended by a Board of Inquiry, to stultify the claimant’s career and progress in Public Service, until the claimant’s retirement on 25 November 2016, is wrongful, malicious and mala fide.
(iv) A declaration that the willful refusal to implement the decision and recommendation of the reviewing Board of Inquiry that looked into the petition of the claimant, without any reason or justification advanced to the claimant for the said refusal, until his retirement on 25 November 2016, is ultra vires the powers of the defendants, malicious and contrary to Rule 04303 of the Delta State public service rules.
(v) An order directing the defendants to retrospectively enhance the claimant’s salary from Grade Level 16 to Grade Level 17, as from May 2005, when all the salaries of the claimant’s contemporaries on Grade Level 16 were enhanced en-masse from Grade Level 16 to Grade Level 17, based on the implementation of the Legal Officers Harmonization of Salaries with Magistrates (Amendment Law of 2004).
(vi) An order directing the defendants jointly and severally to pay the claimant the salary differential between Grade Level 15 (where the claimant was demoted to) and Grade Level 17 (where the claimant ought to have been enhanced to, by the implementation of Legal Officers Harmonization Amendment Law 2004), put at N211,068 per month, from 2005 – 2010, amounting to N12,664,080 (Twelve Million, Six Hundred and Sixty-Four Thousand, Eighty Naira).
(vii) An order directing the defendants jointly and severally to pay the claimant the salary differential between Grade Level 16 and Grade Level 17, put at N168,813 per month from 2010 – 2016, amounting to N12,154,536 (Twelve Million, One hundred and Fifty-Four Thousand, Five Hundred and Thirty-Six Naira) when the claimant retired.
(viii) An order directing that the claimant be paid the pension and gratuity of a Salary Grade Level 17 officer, being his rightful and legitimate salary Grade Level.
(ix) An order directing that the defendants jointly and severally, pay the claimant the sum of N100,000,000 (One Hundred Million Naira) as general damages for the abuse of power, breach of fair hearing, stagnation, shame, odium, reproach, humiliation and the willful and purposeful denial of honour due to the claimant.
(x) An order directing that the defendants jointly and severally pay the claimant the sum of N10,000,000 (Ten Million Naira) as exemplary damages.
2. The defendants entered appearance and filed their joint statement of defence, list of witnesses, written statement on oath, list of documents and copies of the documents to be relied on. To this, the claimant filed a reply to the statement of defence, further witness statement on oath, additional list of documents and copies of the additional documents.
3. At the trial, the claimant testified on his own behalf as CW, tendered Exhibits C1 to C23 and was cross-examined by the defendants’ counsel. Thereafter, the defendants’ counsel did not show up again in Court to open the case of the defendants. The defendants were accordingly foreclosed and written addresses were ordered. The claimant’s final written address was filed on 21st February 2018. The defendants did not file any written address. Effectively, the claimant’s case is undefended, but this does not mean that the claimant is thereby relieved of the duty of proving his case as to give him automatic judgment. See Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69, Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247 and Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC.
THE CASE OF THE CLAIMANT
4. Until 25th November 2016, the claimant was a Chief Magistrate in the Delta State Judiciary with 34 years post call experience and practice. The claimant had in 1998 been recommended for appointment as a High Court Judge but on 30th April 1998 he was instead absorbed as a Chief Magistrate II of GL 15. His appointment was confirmed in 2000 and promoted to Chief Magistrate I on GL 16 in 2002. To the claimant he had no issue at work until one Pa Agbofodoh wrote a petition against him stating that the claimant had no jurisdiction and was compromised to issue a reproduction warrant an accused, Newton Agbofodoh, who was the petitioner’s son. The claimant was asked to respond by the Chief Judge, which he did although the necessary documents he needed for his reply were not availed him. Thereafter, a panel was set to investigate the petition. That at several sittings of the panel, the petitioner did not show up to substantiate his allegations. Curiously, that the Chairman of the panel, one Late barrister Abel Ojo, raised an issue that was contained in the petition i.e. that the claimant mutilated his record book by altering the page numbering of the record book. That it was on this basis that the panel found the claimant culpable of abuse of office, gross misconduct and incompetence in handling the matter; and the panel recommended to the 1st defendant that the claimant be demoted from GL 16 to GL 15, the position the claimant originally started when he joined the Delta State Judiciary in 1998. That without furnishing the claimant with the recommendation of the Board and without calling on the claimant to respond to the allegations/findings of the Board of inquiry as envisaged by Rule 04303 of the Delta State Public Service Rules, the 1st defendant actually demoted the claimant based on the recommendation of the Board of inquiry vide a letter dated 4th July 2006.
5. The claimant went on that 7 days after he was demoted to GL 15, all the salaries of his contemporaries on GL 16 were enhanced en-massed to GL 17 and the enhancement was backdated to May 2005. That but for the wrongful indictment and demotion, his salary would have been enhanced to GL 17 in 2006 with effect from May 2005. That the salary differential between GL 15 and GL 17 was N211,068 monthly. Being dissatisfied with the bizarre recommendation, he petitioned the 1st defendant to review/revisit the recommendation. A three-man reviewing Board of Inquiry headed by Hon. Justice Obi (Rtd) was set to inquire into his petition. That the reviewing board found that there was no mutilation of the record book but an inconsequential amendment of the date to which the matter was adjourned. The reviewing board found in January 2009 that the reduction in rank of the claimant is unsustainable and cannot be justified and then recommend that the said punishment be rescinded. That upon notification of the recommendation of the reviewing board, the claimant wrote to the 1st defendant several letters in 2011 and 2012 accepting the recommendation and urging the 1st defendant to implement same in line with Rule 04303 of the Delta State Public Service Rules. That the 1st defendant refused to implement the recommendation of the reviewing board without proffering any reason whatsoever for the refusal. That the Nigerian Bar Association tried to intervene in the matter but to no avail.
6. The claimant continued that prior to his demotion, he was in May 2006 No. 2 on the shortlisted candidates for appointment to the High Court Bench. That he did not only suffer demotion but he lost being considered for the High Court bench as the 1st defendant removed his name from consideration and did not forward it to the National Judicial Council (NJC). That in 2011 when his name was sent to the NJC for appointment as a High Court Judge, some agents of persecution sponsored spurious petitions against his nomination alleging that he could not be appointed because he was once indicted in 2006 by the 1st defendant.
7. That after his demotion to GL 15, he was promoted to GL 16 again on 1st July 2010 without recourse to the recommendation of the Justice Obi panel. That after his promotion to GL 16, the salary differential between GL 16 and GL 17 was N168,813 monthly. That in 2014, he attended a promotion interview and was turned back by the erstwhile Chairman of the 1st defendant on the ground that there was a pending petition against him and so he could not be interviewed. And that in 2016 when another promotion interview was slated, the 1st defendant did not even bother to invite him. He eventually retired from the service of the 1st defendant on 25th November 2016. To the claimant, he suffered monumental and continuous injustice and injury at the hands of the 1st defendant and the Delta State Judiciary; which injury and wrongful actions which started in 2006 were continuous in nature and ran through the claimant’s service with the 1st defendant until he retired on 25th November 2016. That the actions of the defendants were vindictive, done with male fide, Machiavellian and outside their statutory powers. The claimant is accordingly in court claiming the reliefs he present claims.
THE SUBMISSIONS OF THE CLAIMANT
8. The claimant submitted a lone issue for determination i.e. whether or not, the claimant is entitled to the reliefs sought, from the totality of the pleaded facts and the evidence before this Court. To the claimant, the reliefs he seeks in this suit stand on three (3) throngs, which invite this Court, to make pronouncements on. They are:
(a) The legality or otherwise of the process that led to the claimant’s demotion, reliefs (i) and (ii).
(b) The lawfulness of the defendants’ actions viz-a-viz the defendants’ refusal to give any reason for their refusal to implement the decision of the reviewing board of inquiry that exculpated the claimant, relief (iv).
(c) The entitlements of the claimant, with particular regard to the claimant’s salary, grade level and pension, at the time of his retirement, reliefs (v), (vi), (vii) and (viii).
9. The defendants had in their joint statement of defence alleged that the claimant’s cause of action is statute-barred on the strength of the Public Officers Protection Law of Delta State; and this Court had given the claimant’s evidence directed on 21st September 2017 that both counsel address the Court in their final written addresses on whether or not the suit is statute-barred. To the claimant, the Public Officers Protection Law is inapplicable to his case. That it is pertinent to note that he retired on 25 November 2016 from the public service of Delta State, and thereafter instituted this action on 16 February 2017. That it is, therefore, crystal clear that the claimant instituted this action within three (3) months from his retirement from public service in Delta State. Thus, having filed this suit within two months and a few days leg (c) of his cause of action is obviously not caught by limitation law. That in respect of the claimant’s salary, grade level and pension at the time of his retirement, it is admitted, based on the pleadings between the parties, that promotion exercises were conducted in November 2016, which the claimant was not allowed to participate in. That the defendants, however, justified the failure to consider the claimant for promotion exercise for which he was entitled to under the Delta State Public Service Rules in paragraph 17 of the defendants’ joint statement of defence, the justification being that promotion is not available to officers who have pending disciplinary matters. Therefore, it is clear that having filed this suit on 16 February 2017 the claimant’s action challenging the refusal of the defendants to consider him for promotion is not statute-barred.
10. The claimant referred to Rule 02702(b) of the Public Service Rules of Delta State, which deals with promotions, and provides that all officers who fall within the field of selection for any promotion exercise shall be considered except those who are under disciplinary action. That from this rule, it is only officers who are under disciplinary action at the time of promotion exercises that should not be considered for promotion. That the truth as established by the pleadings is that the claimant was not under any disciplinary action as at 2014 and 2016, when promotion exercises were held without his consideration. Surprisingly, that the defendants relied on four (4) alleged petitions written against the claimant between years 2014 to 2015 in justification of the fact that the claimant was not considered for promotion. To the claimant, petitions do not amount to an indictment, which necessitates disciplinary action. That it is a notorious fact that spurious petitions are written against judicial officers almost on a daily basis, and this does not automatically translate to an indictment on the said officer or mean that the allegations contained in the petitions are true. That the truth of this assertion is exemplified in this instant case where the claimant was exonerated on all four (4) petitions referenced by the defendants. Nevertheless, the defendants maliciously refused to promote the claimant.
11. The claimant went on that the unholy techniques of the defendants are exemplified by a consideration of the dates of the petitions, as stated in paragraph 17 of the statement of defence. A perusal of paragraph 12 of the claimant’s reply to the statement of defence and Exhibits C18, C19 and C20 would reveal that these petitions were kept without being looked into for several years, and were only made reference to at such times as when the claimant became eligible for promotion; after the promotions exercises, the defendants would exonerate the claimant of the allegations contained in the petitions, knowing well that the petitions were sponsored and spurious. That it is germane to note that the defendants with all their chicanery, woefully failed to bring any shred of evidence to show this Court that the claimant was indicted by those petitions or that the claimant was indeed under any disciplinary action, arising from those petitions, at the time the promotion exercises were conducted. That Exhibit C20 says it all; the defendants set up a panel in 2016 to investigate a petition written in 2014, and despite the fact that the said panel found that the petitioner was a nonexistent person, with a fictitious address, the defendants waited for the promotion exercise conducted in the last quarter of 2016 to be over and also for the claimant to retire in November 2016 before the defendants exonerated the claimant on the petition written in 2014. That this was almost three (3) years after the petition was written, and cannot be regarded as an action within the colour of the defendants’ office. That after the claimant was absolved of all wrong doing, the defendants still failed to promote the claimant, urging the Court to grant relief (viii).
12. On whether the claimant’s suit is statute-barred with particular reference to legs (a) and (b) above, having addressed leg (c), that it is trite law that the reliefs/claims sought before the Court are the determinants of whether a cause of action is such that would be caught by a statute of limitation or otherwise. That the claimant in reliefs (i) to (iv) sought declarations that the actions of the defendants (as specified) are a breach of fair hearing, beyond the defendants powers and contrary to the provisions of the Public Service Rules. It is the claimant’s submission that the Public Officers Protection Law was never intended and cannot be used as a bar precluding a Court from inquiring into the legality or otherwise of any action by a public officer who acts outside the color of his office, citing Nigeria Stored Products Research Institute v. B.I.R. Kwara State [2013] LPELR-22073(CA) and Egbe v. Alhaji [1990] 1 NWLR (Pt. 128) 546. To the claimant, before this Court can consider whether or not the suit filed by the claimant is statute barred, the Court has the duty to first determine whether or not the actions of the defendants, which occasioned the complaint of the claimant, were within the bounds and limits of the Public Service Rules of Delta State, and whether or not the defendants complied with Rule 04303 of the Public Service Rules of Delta State. That if this Court finds that the defendant did not act in accordance with the law, to wit the Public Service Rules, then the issue of protection by the Public Officer Protection Act does not arise at all, and this Court has a duty to declare such an action ultra vires and unlawful, relying on CDO Tudun-Maliki Quarters v. Mohammed [2015] 9 NWLR (Pt. 1465) 585.
13. The claimant continued that he raised the issue of fair hearing in reliefs (i) and (ii), where he is seeking a declaration that the failure to comply with Rule 04303 of the Public Service Rules of Delta State has occasioned a breach of his right to fair hearing. That he has also sought a declaration that the failure of the defendants to avail him with the Annexures and necessary documentation that accompanied the petition of Pa Resident Agbofodoh, which was the foundation upon which he was demoted, amounts to a breach of fair hearing and fair trial, relying on Exhibit C5 (claimant’s reply to petition) and Judicial Service Commission of Cross River State & anor v. Young [2013] 11 NWLR (Pt. 1364) 1. That it is trite law that where there is a breach of fair hearing, the Public Officers Act or Law cannot avail the officer seeking to rely on same, citing Judicial Service Commission of Cross River State & anor v. Young (supra) and Obi Akejule v. Delta State Government [2009] 17 NWLR (Pt. 1107) 29 at 299. That it, therefore, follows that the issue of fair hearing is a constitutional requirement and must be followed and adhered to, and there cannot be a limitation to the applicability of the sacred provisions of the constitution as regards fair hearing, citing Military Governor of Imo State v. Nwauwa [1997] LPELR-1876(SC).
14. The claimant then referred the Court to paragraphs 8, 10, 11, 14, 15 and 16 of the statement of claim as showing that the defendants in demoting the claimant acted outside the bounds of the law. That it is instructive to note that Rule 04303 of the Public Service Rules of Delta State has been judicially recognized and upheld in Erhovwo Eferakorho v. Delta State Judicial Service Commission [2015] AFWLR (Pt. 779) 1184 CA at 1200-6. That the rationale behind this particular rule of the Delta State Public Service Rules and Erhovwo Eferakorho stems from the need to conform with the long ensconced principles of natural justice; it would indeed be a sad day for justice, when a quasi-judicial body makes a decision affecting an officer, without hearing the said officer, and the said decision is allowed to stand. Furthermore, that it is without pretence, based on the evidence and pleadings in this case, that the panel of inquiry which heard the claimant was not the body that reached a decision on the claimant’s fate; the 1st defendant who reached a decision on the claimant’s fate, failed to hear him in defence of the allegations made by the panel of inquiry. That the panel of inquiry only made recommendations, which the 1st defendant considered and deliberated on and then reached a decision. That in Exhibit C6, it would be found in paragraphs 2 and 3 that the claimant was never heard by the 1st defendant before the 1st defendant reached the decision to adopt and apply the recommendations of the panel of inquiry, citing Adeniyi v. Governing Council of Yabatech [1993] 6 NWLR (Pt. 300) 426 and Aiyetan v. NIPOR [1987] 3 NWLR (Pt. 59) 48, which distinguished between the recommendation of an investigation panel which has no statutory powers, and the acting on the recommendation by a statutory body with requisite statutory powers on the ground that while the recommendation of the investigation will not affect the civil rights and obligations of the appellant, the acting upon such recommendation does; hence the implementation of the recommendation must comply with the rules of natural justice. Also referred to the Court is Olatunbosun v. NISER Council [1988] 2 NWLR (Pt. 80) 25 SC, which held that for one body to hear parties and another body that didn’t hear the parties to give a decision is unknown to law. To the claimant, it follows that the 1st defendant was bound to give him fair hearing by hearing him on the allegations or findings of the board of inquiry before issuing Exhibit C6.
15. That a related issue is whether the defendant could refuse, without reason, to reinstate the claimant after the reviewing board of inquiry had exculpated and exonerated the claimant and recommended his reinstatement. To the claimant, arbitrariness is not the purpose of preserve of the law, relying on paragraph 9 of the 5th Schedule to the 1999 Constitution, which provides that: “A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy”. That the abuse of power and malice in the conduct of the defendants is manifest in the defendants complete disdain for the rule of natural justice. That the defendants pleaded in paragraph 13 of their joint statement of defence, brashly and indignantly, averring that they “are not bound to proffer any reason to the claimant why they refused to accept the recommendation of the review panel”. That the defendants appear to have elevated themselves to the office of god, as no man, body or authority in this country or the world over is not bound by the rules of natural justice, calling on the Court to curb this brazing and perturbing wanton abuse of power and citing Bakare v. Lagos State Civil Service Commission & anor [1992] 8 NWLR (Pt. 262) 641 and Aiyetan v. Nigerian Institute for Palm Oil Research [1987] 3 NWLR (Pt. 59} 48 SC at 63. To the claimant, for the 1st defendant to make a decision not to reinstate the claimant, which decision gravely affected his livelihood, the 1st defendant was bound to adduce reasons why it refused to implement the decision, in keeping with the principles of natural justice. The claimant then stressed that his grouse lies not with the rightness or wrongness of the refusal to implement the decision of the reviewing panel, but with the procedure adopted by the defendants and the manner the defendants handled his fate, relying on University of Nigeria Teaching Hospital Management Board v. Nnoli [1994] 8 NWLR (Pt. 363) 376 SC.
16. The claimant proceeded that the reviewing board having found that the earlier report, upon which the 1st defendant based its decision, was wrong, the 1st defendant could not become a judge in its own cause and insist upon the squashed report of the earlier panel. That as soon as the 1st defendant decided to revisit the decision of the earlier panel by setting up a review panel, the earlier panel’s report was no longer available to the 1st defendant to rely upon, except if the earlier report was upheld by the reviewing board, of which it wasn’t. Furthermore, that the second ambit of Rule 04303 of the Public Service Rules makes it mandatory for the 1st defendant to implement the decision of the board of inquiry if the claimant either failed to reply to the recommendation of the board of inquiry or makes a representation that he accepts the recommendation.
17. That it is beyond disputation that the claimant’s employment was one that enjoyed statutory flavour, therefore the claimant did not hold his office at the whim or caprice of any person. Thus, in the discipline of the claimant, the provision of the rules must be followed, relying on University of Nigeria Teaching Hospital Management Board v. Nnoli (supra) at 404 and Shitta-Bay v. Federal Public Service Commission [1981] C. 40 at 56 – 57. It is thus the claimant’s submission that the defendants having failed to afford the claimant fair hearing and having failed to follow the procedure laid down in the Public Service Rules of Delta State in the processes that led to the claimant’s demotion, such demotion must be rendered null and void, urging the Court to so hold and referring to Nigerian Army v. Yakubu [2013] LPELR-20085(SC), Godwin Nwankwere v. Joseph Adewumi [1966] All NLR 129 SC, Hassan v. Ayliu [2010] 17 NWLR (Pt. 1223) 547 SC and Lagos City Council v. Ogunbiyi [1969] 1 All NLR 297 SC at 299.
18. On damages, the claimant submitted that he pleaded in paragraph 27 that the actions of the defendants severely affected his reputation and livelihood. That it is most instructive to note that this paragraph was nowhere denied by the defendants in their statement of defence, which amounts and is tantamount to an admission in law. That a significant decrease was occasioned to the claimant’s earnings by reason of the said demotion and/or the refusal to reinstate the claimant, for no reason whatsoever. That he pleaded the pecuniary difference in the monthly pay between his demoted level and the level where he ought to have been, referring to paragraphs 18 and 32 of the statement of claim and Exhibits C7 and C8, which are the enhancement of salary implementation applied across board to the claimant contemporaries (save for the claimant) and the salary scale used by the defendants, in proof of the salary differential. That it is equally sacrosanct to observe that the losses to the claimant, as stated in the aforementioned paragraphs, were not controverted by the defendants, neither did the defendant’s cross-examine the claimant on the issue, citing Pascutto v. Adecentro Nig. Ltd [1997] LPELR-2904(SC).
19. Furthermore, that the injurious losses to the earnings of the claimant were continuous in nature, as they ran monthly from the date of wrongful demotion till the claimant’s retirement, urging the Court to award the payment of the claimants entitlements and outstandings, if this Court finds that the demotion of the claimant is ultra vires and void, relying on AG Rivers State v. AG Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 SC. Similarly, that the claimant in this suit has laid claim to the earnings that he has been deprived of, by virtue of some un-colourful actions of the defendants, which continued to affect the claimant’s salaries and entitlements until he retired.
20. The claimant further submitted that he is entitled to general damages for the malicious actions, suffering, shame and odium the defendants occasioned to the claimant. That general damages in law is defined as a loss arising from the defendants action, citing UBA Plc v. Ajabule [2011] LPELR-8239(SC). That in the instant case, the claimant claimed general damages in relief (ix) and also pleaded in paragraphs 36 that he has suffered monumental injury at the hands of the defendants, urging the Court to grant the claimant the damages claimed because the injuries to the claimant’s reputation, livelihood and career arose out of the conduct of the defendants.
21. The claimant also asked for an award of exemplary damages. To the claimant, the award of exemplary damages in the instant suit is apt considering the circumstances of this case. That the conditions for the award of exemplary damages have been re-iterated CBN v. Okojie [2015] 14 NWLR (Pt. 1479) – the page is not supplied. The conditions are: in a case of oppressive, arbitrary or unconstitutional acts by government servants; where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; or where especially authorized by statute. Also that acts that are high handed, outrageous. insolent, vindictive, oppressive or malicious and show contempt of the respondent’s rights or in disregard of every decent conduct of civilized men can ground exemplary damages, citing MMA Inc. & anor v. NMA [2012] LPELR-20618(SC). That it is abundantly clear from the pleadings and evidence before this Court that the defendants had abused their office, acted maliciously and oppressed the claimant. That it is trite law that documentary evidence is the best form of evidence and same should be used as a hanger for testing oral evidence, referring to Exhibits C14, C15 and C17, wherein it will be seen that despite several cautions from eminent lawyers, the Nigerian Bar Association and even jurists, the defendants were adamant and refused to abide by the rule of law and the Public Service Rules of Delta State. The claimant then called on the Court to award exemplary damages against the defendants, as the defendants maliciously embarked on a colossal scheme to ruin the claimant’s career. In conclusion, the claimant urged the Court to remedy the wrongs against him.
COURT’S DECISION
22. After due consideration of the processes filed and submissions of especially the claimant, the key question calling for resolution is whether this case is not statute-barred. If the answer is in the negative, then the issue whether the claimant has proved his case will arise. The evidence of the claimant including that under cross-examination show that he was demoted in 2005 based on findings and issues raised suo motu by an investigation panel. The demotion was, however, handed to him in 2006. He appealed against the demotion and though he was exonerated, nothing was done to remedy it by the defendants up to when he retired voluntarily in 2016. The claimant in fact argues that he suffered double demotion since being on GL 15 when he should be on GL17 meant a double loss. Given the evidence of the claimant and the reliefs he brought to Court, the Court on 21st September 2017 ordered parties to address it on whether the claimant’s suit is not statute-barred. The argument of the claimant is that it is not because his injury is continuous and the acts of the defendants were mala fide, vindictive and outside the colour of their offices.
23. The authorities on limitation period (Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20, Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24, Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012 and Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors [2013] 31 NLLR (Pt. 89) 242 are constant in stating that when confronted with the question whether a case is statute-barred, Courts are to simply look at the writ of summons/statement of facts or claim to see when the cause of action is stated to arise and compare that date with when the action was filed. If after this comparison it is found that the limitation period is exceeded, even if by one day, then the case is statute-barred (Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253 and Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253). We can, however, only do this if we know in fact what the claimant’s cause of action is; then and only then can we ascertain when it arose.
24. The claimant thinks his cause of action arose upon his retirement on 25th November 2016 on the premise that his injury and wrongful actions started in 2006 and were continuous in nature and ran through the claimant’s service with the 1st defendant until he retired on 25th November 2016. This explains the argument of the claimant that since he filed this action on 16th February 2017, it is crystal clear that he filed the case within three months (two months and a few days to be specific) of the accrual of the cause of action especially in terms of his claim for salaries, grade level and pension. But is this actually the case? This remains the question. I acknowledge that there can be more than one cause of action in a suit (that is why by Uba v. Ukachukwu [2013] LPELR-22045(CA) an amendment of writ or pleadings cannot revive a cause of action that is statute-barred); as such we may need to look at especially the reliefs claimed to determine what exactly is the cause(s) of action. The law is that a claim is circumscribed by the reliefs claimed. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. The claimant’s reliefs are 10 in all, four of which are for declarations and the remaing six for orders. Relief (1) deals with the demotion of the claimant. The letter demoting the claimant is dated 4th July 2006. This means that as far as relief (i) is concerned, the cause of action arose on 4th July 2006. However, the claimant appealed against this and in 2009 it was found that the reduction in rank is unsustainable and cannot be justified and so it was recommended that the said punishment be rescinded. This was not done despite his letters in 2011 and 2012. So, the cause of action as relates to his demotion and his right to come to court crystallized at worse in 2012. It must be noted that for purposes of the limitation law, intervening acts do not count when the period of limitation is being counted. So it matters not in truth that the claimant appealed against the demotion unless there is an obligation in terms of the rules that he must appeal before he can come to Court; and the claimant did not show such a requirement. The claim against demotion is accordingly outside of the three months limitation period allowed by the Delta State Pubic Officers (Protection) Law. I so find and hold.
25. Relief (ii) relates to the refusal of the 1st defendant to avail the claimant with Annexes and necessary documents accompanying the petition of Pa Agbofodoh. By Exhibits C4 and C4(a), the petition in issue is dated 28th July 2005 and the claimant’s reply wherein he complained of the Annexures not forward to him is dated 6th January 2006 and is annexed to Exhibit C4(a). This means that the cause of action as relates to refusal to avail him the Annexues, which thus led to the denial of his right to fair hearing, arose in 2006 i.e. outside of the 3 months limitation period allowed. I so find and hold.
26. Relief (iii) talks of the claimant’s demotion being continuous and so wrongful. Demotion is a one off thing, a completed act. It cannot be continuous as the claimant seems to think. In INEC v. Ogbadibo Local Government & ors [2015] LPELR-24839(SC), His Lordship Okoro, JSC held that suppression of the respondents’ State Constituency where there was no other act of excision or suppression is a completed act and so was a continuance of the injurious effects of a legal injury, not a continuing injury itself. I shall talk more on continuing injury/damage in due course.
27. Relief (iv) deals with the refusal to implement the decision and recommendation of the reviewing Board of Inquiry that looked into the petition of the claimant. Once again, the claimant talks of this refusal continuing till his retirement on 25th November 2016. The refusal to implement a recommendation is a completed act, not continuing; and this relief bears affinity with relief (i). In the worse case scenario, it carries with it the antecedents and conclusions regarding relief (i).
28. Relief (v) is asking for enhanced salary as from May 2005; relief (vi) is asking for salary differential from 2005 to 2010; and relief (vii) is asking for salary differential from 2010 to 2016. The contention of the claimant is that but for the wrongful indictment and demotion, his salary would have been enhanced to GL 17 in 2006 with effect from May 2005. Once again, the claimant premises these claims on the continuing injury rule, citing AG Rivers State v. AG Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 SC. I will in due course talk more on the issue. I only need to make the point here that LUTH & MB v. Adewole [1998] 5 NWLR (Pt. 550) 406 held that where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment. By this authority, each of the salaries claimed by the claimant arose on the date the salaries were each due for payment. I shall rationalize this issue alongside the decision in AG Rivers State v. AG Bayelsa State shortly.
29. Relief (viii) is for pension and gratuity calculated on the basis that the claimant is on GL17. The claimant’s cause of action here is not that he is not being paid pension and gratuity but that it ought to be paid on the basis of him being on GL17. So the cause of action is actually whether he is in fact a GL17 officer in order to be paid as he claims. By paragraphs 16 and 17 of the claimant’s statement of facts, his contemporaries were promoted to GL17 seven days after he was demoted; as such but for this demotion his salary would have been enhanced to salary GL17 in 2006 with effect from May 2005. This means that he claims that he would have been on GL 17 in 2006, the year the promotion of his contemporaries was communicated. This specifically places the clamant’s cause of action here as arising in 2006. I note though that Ajao v. Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office & anor [2016] LPELR-41407(CA) held that a claim for pensions/terminal benefits cannot be caught up by the limitation law but this decision was arrived at on the premise that the cause of action accrued upon the completion of the computation of the terminal benefits of the appellant by the respondents and the communication of the same to the appellant by the respondents. The reliefs sought by the appellant showed clearly that after not being paid his entitlements shortly after his retirement and in response to the appellant’s letter, the respondents’ letter of 24/5/2007 was that they were yet to conclude the arrangement for proper computation of the benefits. The Court of Appeal accordingly held that it cannot be successfully argued that the action is statute-barred within three months of the appellant’s retirement. So in determining whether the claimant is entitled to relief (viii), the question is whether he entitled to be on GL17 and when he was so entitled. The question when the claimant was entitled to be on GL17 is itself a cause of action; and the right to come to Court arose in respect of it when the claimant was denied the promotion to GL17, and that is in year 2006. In this sense, even this question as presently filed is outside of the limitation period. I so find and hold.
30. Reliefs (ix) and (x) are for damages. They come into play only if the claimant has a cause of action and he proves it.
31. I now address in greater details the issues contended by the claimant especially as they relate to the issue of statute-bar. To the claimant, he suffered monumental and continuous injustice and injury at the hands of the 1st defendant and the Delta State Judiciary; which injury and wrongful actions started in 2006 and were continuous in nature and ran through the claimant’s service with the 1st defendant until he retired on 25th November 2016. That the actions of the defendants were vindictive, done with male fide, Machiavellian and outside their statutory powers. The claimant stressed that his injurious losses to the earnings were continuous in nature, as they ran monthly from the date of wrongful demotion till the claimant’s retirement The claimant would accordingly lay claim to the earnings that he has been deprived of by virtue of some un-colourful actions of the defendants, which continued to affect his salaries and entitlements until he retired, citing AG Rivers State v. AG Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 SC. Two issues are evident here: that the claimant’s injuries were continuous; and that the defendants acted outside of the colour of their offices. I shall consider these issues in that order.
32. The claimant placed great reliance on AG Rivers State v. AG Bayelsa State. This case raises the question whether the claimant even understands what is meant be continuous injury or damage. What then did AG Rivers State v. AG Bayelsa State actually decide? In Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC, this Court explained the import of AG Rivers State v. AG Bayelsa State in this words:
…the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State…
33. It must be noted that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury”, not the injury itself. See Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of Carrey v. Bermondsey Metropolitan Bourough Council [1903] 675 P. 447; 20 TLR 2, Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58, Obiefuna v. Okoye [1961] All NLR 357 and Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor unreported Suit No. NICN/LA/312/2013, the ruling of which was delivered on 3rd July 2014. His Lordship Okoro, JSC was more reinforcing on the meaning of “continuance of injury” in INEC v. Ogbadibo Local Government & ors [2015] LPELR-24839(SC) when he held that “continuance of injury” means the continuance or repeat of the act which caused the injury; it does not and cannot be said to mean the concomitant effect of the damage or injury. On this basis, His Lordship proceeded to hold that excision and suppression of State Constituency was completed act, different from the continuance of the injurious effects of a legal injury. This Court would proceed in 2016 to hold in Mrs Agubuzor Nkechi v. Centre for Black and African Arts and Civilization & ors unreported Suit No. NICN/LA/07/2016, the ruling of which was delivered on 7th December 2016, thus:
The point is that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself…It is in this light that AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 must be understood. In the instant case, the applicant wants the findings and recommendations of the disciplinary committee quashed, she wants her suspension quashed, she wants to be placed on Grade Level 12 Step 3, she wants to be reinstated as Secretary to the Board of Directors, she wants to be paid the arrears of her salaries and approved allowances she is entitled to during the period of her suspension, she wants the respondents restrained from proceeding further with he matter until her motion is determined, she wants a stay of proceedings, she wants the 1st and 2nd respondents prohibited from excluding her from promotion interview, and she wants arrears of salaries occasioned by the wrong placement of her salary grade level since 2010. I do not see what is continuing in all of this. If anything, they are competed acts, against which she is complaining. It should be noted that LUTH & MB v. Adewole [1998] 5 NWLR (Pt. 550) 406 held that where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment. Once again, I do not see any merit in the applicant’s argument in this regard, which argument I hereby discountenance.
34. Taking a look at the reliefs of the claimant in the instant case, what is continuing about the acts that the claimant is complaining of? Is the demotion of the claimant a completed, or continuing, act? Is the refusal to avail the claimant with Annexures a completed, or continuing, act? Is the refusal to implement the decision and recommendation of the reviewing Board of Inquiry a completed, or continuing, act? They are all completed acts, not continuing acts. I so find and hold. As for the claims for arrears of salaries that the claimant should have had, the claimant must note that he is no longer in employment, as such the issue of periodicity of payment as enjoined by AG, Rivers State v. AG, Bayelsa State & anor does not even arise; it only arises in respect of pension payment since this is periodical after an employment comes to an end. So going by LUTH & MB v. Adewole, the cause of action in the claim for salaries accrues from the date the salaries are due for payment. All the salaries the claimant is claiming for were not due and payable at the retirement of the claimant; they were due and payable while the claimant was still in the employ of the 1st defendant. This being so, the claimant is making the claims for them outside of the limitation period. I so find and hold.
35. The second argument of the claimant is that especially the 1st defendant acted mala fide and outside the color of its office. And here the claimant relied on a number of case law authorities to show that the Public Officers Protection Law of Delta State was inapplicable as the defendant acted vindictively and mala fide. The claimant relied on Godwin Nwankwere v. Joseph Adewumi [1966] All NLR 129 SC, which held that the Public Officers Protection Act does not apply to acts done in abuse of office and with no semblance of legal justification, the rationale being that statutory powers or authority vested on a person or individual by law are not intended to be used to advance private individual cause, or to be used maliciously either for abuse of power or to victimize perceived opponents. Hassan v. Ayliu [2010] 17 NWLR (Pt. 1223) 547 SC on its part relied on Lagos City Council v. Ogunbiyi [1969] 1 All NLR 297 at 299 and held that the burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification; and abuse of office is used to achieve ends other than those for which power was granted for example for personal gain, to show undue favour to another or to wreak vengeance on an opponent. See also the more recent case of Kwara State Pilgrims Welfare Board v. Alhaji Jimoh Baba [2018] LPELR-43912(SC), which stressed that the Public Officers Protection Law is used as a shield to protect public officers who act strictly within the confines of their official duties and no more; and that it is not, and cannot be the intention of the law to compensate dishonest public officers with statutory protection or dignify corrupt and untrustworthy public servants with statutory protection for committing offences, misconduct and infraction of public interests, good conscience and morality.
36. Now, what do we have at hand? There was years back a petition against the claimant. Issues arose out of this petition. He complained but got no redress. Instead of approaching the Court for redress, the claimant waited until he voluntarily retired before he chose to come to Court to complain of infractions on him that occurred years back. What is vindictive about the acts of the defendants when given the years the claimant stayed out of the Court may even be interpreted as him accepting the status quo? The claimant argues that the defendants acted outside the colour of their office. This is the very act for which the claimant is coming to Court, the very act he complains of. Like I once pointed out, there is something illogical about the kind of argument advanced by the claimant here. In Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court held thus:
…it is for the claimant to show that the matter comes within any of the permitted exceptions to the limitation law such as that the injury in question is a continuing injury or that the public officer acted mala fide i.e. outside the colour of his office or employment or outside his statutory or constitutional duty. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 32. However, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors [2009] 43 WRN 124 CA at page 146, applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC. [It] is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard.
37. It is within the power of the 1st defendant to consider and take a decision regarding the recommendations to demote the claimant. That it did not take a decision does not make that act of not taking a decision one outside the colour of its office. That it did not promote the claimant does not make that act one outside of the colour of its office. That it did not pay the claimant his salary arrears did not make that act one outside the colour of its office. If anything, all these acts are the wrongs alleged to have been committed that he claimant should within the limitation period bring an action for redress. Once the claimant delays in bringing an action he takes the risk that he may be caught up by the limitation law. This is what the claimant has done in the instant case.
38. The claimant had further contended that it is trite law that where there is a breach of fair hearing, the Public Officers Protection Act or Law cannot avail the officer seeking to rely on same, citing Judicial Service Commission of Cross River State & anor v. Young [2013] 11 NWLR (Pt. 1364) 1. Unfortunately, the quote from this case given by the claimant’s counsel as authority for this proposition of law did not so state that the Public Officers Protection Act of Law is inapplicable where there is breach of fair hearing. I do not know by what stretch of imagination and conjecture the claimant’s counsel came about his conclusion. Obi Akejule v. Delta State Government [2009] 17 NWLR (Pt. 1107) 29 at 299 and Plateau State v. A.G. Federation [2006] 3 NWLR (Pt. 967) 346 also relied on by the claimant’s counsel talked of litigation on the interpretation of constitutional provisions not being statute–barred. The instant case as couched is not one of interpretation of constitutional provisions. After all, as the Supreme Court puts it in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. There is nothing in reliefs (i) to (x) praying for interpretation of constitutional provisions. Application of the fair hearing provision? Yes! But not interpretation! The flip side of all of this, however, is that if the claimant’s counsel is asserting that his client’s case calls on this Court to interpret section 36 of the 1999 Constitution, then it runs foul of the recent decision of the Supreme Court in Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] 14 NWLR (Pt. 1577) 410. In that case, the Supreme Court, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing is that of a non-judicial body. The Delta State JSC is a non-judicial body. The reliance on section 36 of the 1999 Constitution by the claimant’s counsel would accordingly be uncalled for since the disciplinary process the claimant complains of in the instant case is one composed of a domestic tribunal, which is not a Court or Tribunal established by law as to enable the claimant assert that the defendants did not comply with section 36 of the 1999 Constitution.
39. On the whole, I am convinced that this case is statute-barred; and I so hold. The arguments of the claimant that it is not are accordingly rejected. The only thing left is the claim as to pension and gratuity, which is hinged on the fact that the claimant ought to have been on GL17. Being on GL17 means being promoted. Is promotion a right? The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor [2001] 10 NWLR Pt. 720 64 at 84 and Abenga v. Benue State Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610 at 622 CA say it is not; it is a privilege. The claimant must show an entitlement to it before he can claim it; even at this, only if he was vindictively denied it. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC and Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on 10th July 2017. The acts which can be used to determine whether the defendants were vindictive are the very acts I just held are statute-barred and no enquiry can be made into them. The time the claimant ought to have contested the said acts is long gone.
40. As it is, therefore, the claimant cannot succeed in his claims. They fail and are hereby dismissed.
41. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
