UNIVERSITY OF JOS v. DR. SANI MUHAMMAD ADAM (2013)

UNIVERSITY OF JOS v. DR. SANI MUHAMMAD ADAM

(2013)LCN/5969(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of February, 2013

CA/J/20/2009

RATIO

STATUTE OF LIMITATION: CONTRACTS: WHETHER THE CONTRACTS COVERED UNDER THE STATUTE OF LIMITATION ARE COVER CONTRACTS OF EMPLOYMENT

It is correct that in FGN & Ors. v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 the supreme court had excluded the application of a similar statute of limitation from applying to contracts. But contracts as used in that judgment can only mean independent contracts. It cannot and do not extend to contracts of employment in the public sector. The Supreme Court has indeed consistently applied the provisions of the Public Officers protection Act to employment in the Public Sector. See FRIN vs. Gold (2007) 11 NWLR (Pt. 1044) 1, Olagunju vs. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113.PER RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

Between

UNIVERSITY OF JOS – Appellant(s)

AND

DR. SANI MUHAMMAD ADAM – Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The respondent was in the employment of the appellant as a law lecturer. The appellant purporting to act in pursuance of the policy of the Federal Government reform in ministries, parastatals and agencies severed the service of the respondent through a letter dated 21st May, 2007 but served on the respondent on 13th June, 2007. Not satisfied with the manner his appointment was terminated, the respondent by way of originating summons proceeded against the appellant at the Federal High court Jos Judicial Division seeking to avoid the termination and payment to of all due salaries and allowances. The Federal High court in a considered judgment on 6th June, 2008 found for the respondent and availed him his prayers.

Dissatisfied with this judgment the appellant filed this appeal. The appeal is founded on the amended notice of appeal filed on 14th October, 2011 but deemed properly filed on 19th October, 2011. The said amended notice of appeal contained four grounds to wit:

GROUND ONE

The trial court erred in law when it held that “…the 2 issues coined or framed by the Defendant, are outside the question for determination submitted by the learned plaintiff.

GROUND TWO

The trial court erred in law when it failed to recognize the intention of the legislature regarding S.15 of the University of Jos Act Cap. U8 Laws of the Federation of Nigeria 2004.

GROUND THREE

The trial court erred in law when it failed to take into consideration the plaintiff’s stained record of service.

GROUND FOUR

That the trial court lacked the jurisdiction to entertain this suit because the respondent’s suit was caught up by the provisions of S. 2(a) Public Officers Protection Act Cap. P.41 Laws of the Federation of Nigeria 2004.

The appellant in setting the brief of argument effectively abandoned grounds 1 to 3 of the grounds of appeal by distilling issues for determination only from ground 4 of the notice of appeal which ground deals only with the limitation provisions of the Public officers Protection Act section 2(a). The issues as distilled by the appellant in its brief of argument filed on 26th March 2012 read thus: –

(i) Whether the respondent can successfully maintain an action against the appellant’s action of termination of the respondent’s appointment vide letter of severance dated 21st May, 2007 purportedly received by him on 13th June, 2007 but not filing his action on 28th November, 2007, taking into consideration the issue of statute bar.

(ii) In view of the answer to issue No (i), was the respondent statute barred when he filed his originating summons on 28th November, 2007.”

On the other hand the respondent distilled only one issue for determination to wit:

“Whether or not the public officers protection Act Cap. P.41 Laws of the Federation of Nigeria 2004 is applicable in this case to deprive the lower court of jurisdiction to entertain the Respondent’s suit No.FHC/J/CS/85/07.”

This is preferable to what was distilled by the appellant.

The appellant had argued that the appellant being a public officer even though an artificial person was entitled to the protection provided by section 2 (a) of the public officer protection Act which provides a limitation period of three months from the accrual of the cause of action within which the complaining party can proceed against it. It argued that the cause of action arose on 13th June, 2007 while the suit was filed on 28th November, 2007 i.e more than 5 months later. It argued that at the time of filing the suit the cause of action had gone stale and that the fact that the respondent had asked the appellant to review the severance did not affect the limitation created by statute. It relied on several authorities including P. N. Udoh Trading Co. Ltd vs. Sunday Abere & 2 Ors (2001) 5 SCNJ 274, Lawan Sada v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379 and Victor Ekeocha v. Customs, Immigration & Prisons Board (2007) All WLR (Pt. 397) 1976.

The respondent, citing Federal Government of Nigeria & Ors vs. Zebra Energy Ltd (2002) 18 NWLR (Pt.798) 162 argued that the Public Officers Protection Act does not apply to contract and therefore was inapplicable in this case which involves contract of service: Respondent further argued that not having raised the issue of the public officers protection Act at the court of 1st instance, the appellant had waived its application.

The appellant had further argued that statute of limitation relating to torts and contract is a defence which can be waived. He cited authorities which included Chukwu & Ors v. Amadi & Ors (2009) 13 NWLR (Pt.1127) and F.R.I.N vs. Gold supra. In F.R.I.N. v. Gold supra, Chukwuma-Eneh JSC raised the issue of non-compliance with the Rules of Court in pleading limitation statutes as special defence, the Supreme Court still held that limitation statutes vacated causes of action when breached and being an issue of jurisdiction can be challenged for the first time on appeal. This was again reiterated by Mukhtar J.S.C (as she then was) in Olagunju v. PHCN supra p.128 when she said –

“If a statute provides a time limit for the initiation of an action in court and that time was elapsed, such action becomes otiose with the effluxion of time.”

At page 129 she said further –

“It is a fact that the defendants did not give specific particulars of the defence the raised in paragraph 12 of their amended statement of defence which the learned counsel for defence has made heavy weather on. The fact still remains that it was matter of jurisdiction which could have been raised even in this court for the first time.”

The importation of the principle or doctrine of waiver in jurisdictional issues is yet to take hold in our jurisdiction.

The suit at first instance having been taken more than 5 months after the cause of action had arisen, the cause of action had gone stale and fallen foul of section 2(a) of the Public officers Protection Act. This appeal succeeds. The judgment of the trial Federal High Court is hereby vacated and in its place is entered the order of striking out.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I read before now the judgment just delivered by my learned Brother, R. C. Agbo, JCA. I am at one with His Lordship’s line of reasoning and conclusion that the appeal is meritorious and is allowed. The judgment of the trial court is hereby set aside and in its place is entered an order of striking out.

JUMMAI HANNATU SANKEY, J.C.A.: I read in advance the Judgment just rendered by my learned brother, Agbo, J.C.A. He has thoroughly dealt with the sole issue raised in this Appeal. I agree with his reasoning and conclusions.

It is not in dispute that the suit at the lower Court was filed on 28th November, 2007, whereas the cause of action, (being the termination of the Respondent’s appointment), arose on 13th June, 2007. Thus, a period of five (5) months elapsed after the cause of action had accrued before the Respondent filed his suit before the Federal High Court, Jos Judicial Division. Section 2(a) of the Public Officers Protection Act provides a limitation period of three (3) months from the accrual of the cause of action for an aggrieved party to proceed.

Where a law, as in this instance, specifically circumscribes the period within which an action may be brought, a plaintiff must comply otherwise the action will be unenforceable. When an action is said to be statute barred, the right to enforce the action is lost and the cause of action becomes sterile and barren. See JFS Investment Ltd v. Brawal Line Ltd & Others (2010) 12 SCNJ 275. If the action is statute barred, it robs the court of the power to entertain it no matter how meritorious. See William O. Olagunju & another V Power Holding Co. of Nigeria Plc (2011) 4 SCNJ 192.

An action that is statute barred raises an issue that touches on the Court’s jurisdiction. Jurisdiction is the life blood upon which any proper adjudication lies. Without it, any adjudication thereon is a nullity. See Chief Ikedi Ohakim v. Chief Martin Agbaso (2010) 7 SCNJ 137.

On the issue of waiver raised by the Respondent on the ground that the issue of statute bar under the Limitation Law was not raised before the lower court and was being raised for the first time before this court, it must be said that the issue of jurisdiction is a question of law and can be raised at any time by the parties’ or by the court suo motu at any stage of the proceedings, even for the first time at the supreme court. It can even be raised viva voce for the first time during arguments.

Jurisdiction is fundamental. It is the main pillar upon which litigation stands. It must be resolved first before other issues, as it is the determinant factor of whether a court is cloaked with the required power(s) to entertain other issues’ being a threshold issue. A lack of jurisdiction nullifies a courts proceedings however how well conducted. See Isaac Obiuweubi v. C.B.N. (2011) 3 SCNJ 166; N.N.P.C. v Clifco Nig. Ltd (2011) 3 SCNJ 166; Senator Yakubu Garba Lado & others v CPC & others (2011) 12 SCNJ 383; Alhaji Muhammad Maigari Dingyadi & Another v. INEC & others (2011) 4 SCNJ 1; Hon. Ahmed Salawu Ogembe v. Nurudeen Abatemi Usman & others (2011) 12 SCNJ 269.

It is for these reasons, and for the fuller reasons set out in the leading Judgment, that I too allow the Appeal. I abide by the orders made therein.

Appearances

Mrs. M. AdeniyiFor Appellant

AND

A. A. Sangei , with him M. A. Harun, B. I. Shehu, V. S. Matawal and B. S. Admad, Esq.For Respondent