WING COMMANDER YUSUF GARBA MSHELIA v. NIGERIAN AIR FORCE & ANOR (2014)

WING COMMANDER YUSUF GARBA MSHELIA v. NIGERIAN AIR FORCE & ANOR

(2014)LCN/7280(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of June, 2014

CA/A/117/2012

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

WING COMMANDER YUSUF GARBA MSHELIA Appellant(s)

AND

1. NIGERIAN AIR FORCE
2. CHIEF OF AIR STAFF Respondent(s)

RATIO

COMMENCEMENT OF ACTION AGAINST A PUBLIC OFFICER

The Public Officers Protection Act applies to all public officers and persons and the respondents, who, no doubt are public officers and bodies, would, all things being equal, be entitled to the protection provided by that Act. Section 2 of the Public Officers Protection Act provides –

“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority or in respect of any such law, duty or authority, the following provisions shall have effect –

(a) the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of…”

So by virtue of section 2(a) of the Public Officers Protection Act, where action or proceeding is commenced against any person, for any act done in pursuance of execution or intended execution of any act or law, or public duty or authority, such action or proceeding shall not lie or be instituted, unless it is commenced within three months next, after the act complained of, or in the case of continuance of damage or injury, within three months next after the ceasing thereof. See HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) 547; NEPA v. OLAGUNJU (2005) 3 NWLR (Pt. 913) 602; and YUSUF v. EGBE (1987) 2 NWLR (Pt. 56) 341. PER YAHAYA, J.C.A.

WHETHER OR NOT THE PUBLIC OFFICERS PROTECTION ACT GIVES FULL PROTECTION ONLY TO PERSONS ENGAGED IN THE EXECUTION OF PUBLIC DUTIES

It is settled, that the Public Officers Protection Act, gives full protection, only to persons or public officers engaged in the execution of public duties, who, at the material times, acted within the scope and confines of their public authority, and who, did not act outside their statutory or constitutional duties. See IBRAHIM v. JSC KADUNA STATE (1998) 14 NWLR (Pt. 584) 1; and C.B.N v. OKOJIE (2004) 10 NWLR (Pt. 882) 488. PER YAHAYA, J.C.A.

WHETHER OR NOT ABUSE OF OFFICE DEPRIVES AN OFFICER THE PROTECTION UNDER THE PUBLIC OFFICERS PROTECTION ACT

It is also the law, that abuse of office, bad faith, acting without legal justification or acting maliciously by a public officer or body, would deprive that officer or body, the privilege of being protected by the Act, It is for the plaintiff who alleges the said misdeeds, to show that the defendant as the public officer seeking the protection of the Act, acted in those circumstances. In the lead judgment of Adumein, J.C.A in GROUP CAPTAIN KANWAI NEHEMIAH SHAKS v. THE CHIEF OF AIR STAFF and THE NIGERIAN AIR FORCE, an unreported decision of this Court in Suit CA/A/130/2010 delivered on the 24th of February, 2004, at page 20, the case of OFFOBOCHE v. OGOJA LOCAL GOVERNMENT & ANOR (2001) 16 NWLR (Pt. 739) 458 at 485, was referred to, where the Supreme Court, per Ayoola, JSC held that – “Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers (Protection).” When a public officer acts maliciously, he acts outside the scope of the law and it also amounts to an abuse of office or position, calculated at doing a wrong act, not authorized by law or public duty. See EGBE v. ADEFARASIN (1985)1 NWLR (Pt. 5) 560 and UNIVERSITY OF ILORIN v. ADEMOLA (2007) 6 NWLR (Pt. 1031) 498. PER YAHAYA, J.C.A.

FACTOR TO DETERMINE PERIOD OF LIMITATION

In determining the period of limitation, when a statute of limitation is invoked, such as the Public Officers Protection Act, it is the Writ and the statement of claim, alleging when the wrong was committed, that should be scrutinized and compared with the date of filing of the action. Time begins to run from when the cause of action accrued. Time begins to run, when there is in existence, a person who can sue, and a person who can be sued and all facts have happened, which are material to be proved before the plaintiff can succeed in his action – EGBE v. ADEFARASIN (NO. 1) 1985 1 NWLR (Pt. 3) 549 and HUMBE v. A.G. BENUE (2000) 3 NWLR (Pt. 649) 419. PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court Abuja, delivered on the 3rd of November 2011. The Appellant herein, was the plaintiff at the Federal High court Abuja and commenced the action by means of an originating summons praying for –

(a) A declaration that the letter of compulsory retirement dated August 1999 is null, void and unconstitutional as there exists no publication in any gazette authorizing and/or delegating G. O. Udokhai to act in that behalf.

(b) A declaration that the said letter of compulsory retirement dated August 1999 is void, null and unconstitutional as it was issued contrary to the conditions of service as contained in the Executive Regulations for the Nigerian Air Force, made pursuant to the Nigeria air Force Act.

(c) A declaration that the continuous failure of the defendants to investigate the plaintiff’s complaints as required by the provision of Section 128 of the Air Force Act Cap 15 Laws of the Federation of Nigeria 1990 amounts to a denial of his fundamental human rights to fair hearing and justice.

(d) An Order setting aside the said letter of compulsory retirement dated August 1999.

(e) A consequential order reinstating the plaintiff as an officer in the Nigerian Air Force on next rank of Group Captain of the Nigerian Air Force with the payment of all his outstanding salaries and entitlements till date.

The Respondents herein, were the defendants at the lower court and they filed a counter-affidavit. They also filed a Preliminary Objection against the hearing of the Suit for being statute-barred, pursuant to section 2(a) of the Public officers Protection Act. After considering the Originating Summons, the affidavits and counter-affidavits filed and the Preliminary Objection, the trial court held that the suit was statute-barred and struck it out. The plaintiff was dissatisfied and so filed this appeal.

The facts in brief, are that the appellant was compulsorily retired from the services of the Nigerian Air Force via a letter dated August 1999, signed by Group Captain G. O. Udokhai, for the Chief of Air Staff. Being aggrieved, the appellant wrote a letter seeking for redress, to the 2nd respondent, in pursuance of section 128(1) and (2) of the Air force Act, now section 178(1) – (5) of the Armed Forces Act, 2004. The 2nd respondent has not, uptil today, responded to the letter for redress. The appellant therefore took the matter to court.

The Issues for determination, identified by learned counsel for the appellant, Mrs. Lydia Ejeh, in the appellant’s brief filed on the 27/4/12, are –

(i) Whether the Appellant’s/Plaintiff’s action is statute barred?

(ii) Whether section 2(a) of the Public Officers Protection Act is applicable to contract of Military service/service employment.

The Respondent’s brief was settled by R. C. Osaji and it was filed on the 5/7/13. The Issues identified, are –

(1) Whether the Appellant’s/Plaintiff’s action is statute barred.

(2) Whether the Defendants are not Public Officers.

Going by the grounds of appeal, the Issues identified by the appellant, are relevant and I shall utilize them in resolving this appeal.

ISSUES NO. 1 AND NO. 2 TOGETHER

The learned counsel for the appellant, referred to section 128(1) and (2) of the Air Force Act 1990 which requires an aggrieved officer to make a complaint to the Air Council first, for its action, before he can go to court. The appellant took this step, but the respondents refused to act one way or the other, although they were bound to so do OIKHERHE v. INWANEJERO (1997) 7 NWLR (Pt. 512) 226 at 247. Counsel argued that the continuous refusal of the respondents to determine the appellant’s complaint is a denial of his fundamental rights – section 36 of the 1999 Constitution of Nigeria. So when the response was not forth-coming, he went to court.

Counsel submitted that as the appellant was trying to exhaust the administrative remedies required by section 128 of the Air Force Act 1990, time did not start to run and so the action could not be statute-barred as held by the trial court. He argued that the action enures until the 1st Respondent performed its duty as required by section 128(1) of the Air Force Act, now section 178 of the Armed Forces Act 2004.

On the respondents being public officers, learned counsel for the appellant submitted that, they must act within the confines of section 2(a) of the Public Officers Protection Act, and if they deviate from the execution of any public duty or authority or act in abuse of office, they would not be entitled to the protection provided by the Act. He placed reliance on ANOZIE v. A.G. FEDERAL REPUBLIC OF NIGERIA (2008) 10 NWLR (Pt. 1095) 278; HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) 547; UNIVERSITY OF ILORIN v. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498 and EGBE v. ALHAJI (1990) 21 NSCC (Pt. 1) 306 at 307.

Learned counsel then submitted that by Exhibits B and B1 (page 15 of the record), the appellant had questioned the power of one G. O. Udokhai, who signed the letter, to so sign, as he was not a member of the Air Force Council, the body statutorily empowered to do so. Further, the Air Force Council had not delegated its power to G. O. Udokhai, and if it did, it ought to have been so published in the Federal Government Gazette, which was not. He referred to EDET v. CHIEF OF AIR STAFF (1994) 2 NWLR (Pt. 324) 23 at 64. Since G. O. Udokhai acted outside the scope of his duties or his statutory power, he argued, section 2(a) of the Public Officers Protection Act cannot operate. He referred also to section 5 of the Air Force Act 1990.

Further, counsel argued that, section 2(a) of the Public Officers Protection Act is of general application, and it must take a back seat, when there is a law specifically on the subject, and that is the Air Force Act 1990, applicable at the material time, to the parties. There are also the Terms and Conditions of Service of the officers. He urged us to set aside the part of the judgment of the lower court which held that the action was statute-barred, and affirm the part of the judgment that granted the appellant’s claim.

The learned counsel for the respondents argued that the appellant did not provide an answer to the vital question as to when the appellant’s cause of action arose, and that such date is crucial because the duration of a cause of action is limited, not perpetual – AGE PRINTING NIG LTD v. EKITI L.G.A. (2009) NWLR (Pt. 1141) 512 at 528. Counsel argued that the date a cause of action accrues, is ascertained from the endorsed reliefs in the Writ of Summons or the statement of claim – EBOIGBE v. NNPC (1994) 5 NWLR (Pt. 347) 649 at 659. He then pointed out that the appellant did not assist the court on what would happen, three months after complying with the provision of section 128 of the air Force Act 1990, or when the suit should have been instituted after complying with the condition precedent in section 128 of the Air Force Act 1990. He was emphatic that the appellant did not state that time will begin to run in the Appellant’s case, only when the Respondents reacted to Exhibit D, at page 29 of the record, i.e. the appellant’s letter to the 2nd respondent.

Counsel also argued that the submissions of the appellant that the cause of action enures until the 1st respondent performs its statutory duty under section 128(1) of the Air Force Act 1990, and that the cause of action is not yet consummated until the 1st respondent performed its duty under section 128(1) of the Air Force Act 1990, are erroneous, and a misconception of the law. Counsel submitted that the wrong allegedly committed against the appellant, was his compulsory retirement from the Nigeria Air force and this was August 1999 and that was when the cause of action arose, and that admission, correspondence or negotiations, cannot affect the period of limitation – OWNERS OF M.V. ARABELLA v. N.A.C.B. (2009) 11 NWLR (Pt. 1097) 189 at 218.
Learned counsel also stated that the reasons for the refusal of the respondents to reply the Appellant’s letter Exhibit D, was because he was only seeking for reasons for the retirement, and he had himself, answered the question. He referred to IBRAHIM v. JSC (1998) 14 NWLR (Pt. 584), and NPA v. AJOBI (2006) 13 NWLR (Pt. 998) 477, to urge us to hold that the action is statute-barred and so the appellant is not entitled to the reliefs he claimed.

The second Issue he addressed, is not part of the issue for determination, and at any rate, there is no dispute between the parties that the respondents are Public Officers. He however submitted that the Public Officers Protection Act is applicable to Military Officers, as public officers by virtue of section 318(1) of the 1999 Constitution.

(a) the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of…”

“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers (Protection).”

When a public officer acts maliciously, he acts outside the scope of the law and it also amounts to an abuse of office or position, calculated at doing a wrong act, not authorized by law or public duty. See EGBE v. ADEFARASIN (1985)1 NWLR (Pt. 5) 560 and UNIVERSITY OF ILORIN v. ADEMOLA (2007) 6 NWLR (Pt. 1031) 498.

Regarding the letter of compulsory retirement of the appellant, signed by G. O. Udokhai, paragraphs (15), (16) and (17) of the affidavit in support of the Originating Summons (pages 7 – 8 of the record) deposed that –

(15) That no reason whatsoever was given for my compulsory retirement.

(16) That I know as a fact, that:

(a) I did not commit any offence or queried in respect of any allegation that may warrant my compulsory retirement.

(b) I was not up to the age of 60 (sixty) years as required by the Executive Regulations.

(c) I was not in any way incapacitated, unsuitable or inefficient in the conduct of my assignment in the Nigerian Air Force.

(d) I was not reported to be unhealthy or unfit to carry out my military assignment in the Nigerian Air Force.

(e) The signatory to Exhibit B has no such power under the Nigerian Air Force Act to sign such letter.
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(17) That in disapproval of the letter of compulsory retirement, I made an appeal to the Chief of Air Staff by a letter dated 29th July 1999 so as to enable him use his office to investigate my unlawful retirement.

Clearly therefore, the appellant had raised the issue of the signing of the compulsory letter of retirement by G. O. Udokhai at the trial court and it can be raised here as it is not a new issue.

The learned counsel for the appellant has submitted that only the Air Force Council has the legal authority and power to write the compulsory letter of retirement and not Udokhai, and if the Council delegates its powers, such delegation must be gazetted in the Government gazette and that this has not been shown to have been done. He referred to section 5 of the Air Force Act 1990 and paragraph 705 of the Terms and Conditions of Service of Officers. He therefore submitted that the letter was not issued pursuant to or intended execution of any law or public duty and so section 2(a) of the Public Officers Protection Act, cannot apply.

In EDET v. CHIEF OF AIR STAFF (1994) 2 NWLR (Pt. 324) 23 at 64, it was held that

“The power of the Air Force council to retire any officer of the Air Force prematurely can be delegated to any member of the Council. Admittedly the Chief of Air Staff could have been given the power by such delegation but there is no evidence to prove that such power had in fact been delegated to him. According to section 5(b) of the Air Force Act, the delegation may be by notice published in the Federal Gazette but nothing was produced here. Since by the said section 5(b) delegation is not automatic it appears to me that even if the letter of retirement of the appellant (EXHIBIT B) was signed by the Chief of Air Staff himself, the Chief of Air Staff could prove that the power to do so has been delegated to him by the Air Council. The signing of the said letter by Wing Commander Ekohon for and on behalf of the Chief of Air Staff was of no consequence at all….”

In the instant appeal, it is not shown or proved, that G. O. Udokhai is a member of the Air Council, the only body statutorily empowered to retire prematurely, the appellant. Again there is nothing before this Court which has proved that the Air Council had delegated its powers to Udokhai. No Federal Government gazette has been produced to establish the fact of the delegation of the powers to Udokhai. The provision of the law, i.e. section 5 of the Air Force Act has therefore not been complied with. In fact, it has been breached, when it was not the appropriate body or its delegated officer that signed the compulsory retirement letter of the appellant. When a public officer who Mr. Udokhai is, acts outside the scope of the law or in its breach, he will not be entitled to the protection afforded by the Public Officers Protection Act, section 2(a). So, as clearly held in EDET v. CHIEF OF AIR STAFF (SUPRA), which is germane to the instant appeal, the letter of compulsory retirement of the appellant signed by G. O. Udokhai is of no consequence at all, and it is null and void without any effect. It is as if it was not written at all and therefore, no action can be founded on it. Once this is the position, the provision of section 2(a) of the Public Officers Protection Act, cannot and does not apply here. Therefore, the issue of when the cause of action accrued for the purpose of determining when time began to run for the purposes of limitation period does not at all arise.

That is not all. Section 128 of the Air Force Act 1990, provides –

“128(1) If an officer thinks himself wrongful in any matter by a superior officer or authority and on application to his commanding officer he does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to Air Council.

(2) On receiving any such complaint it shall be the duty of the Air Council to investigate the complaint and grant any redress which appears to the Air Council to be necessary or if the nature of the complaint so requires, the Air Council shall report the complaint to the directions (if any) of the President.”

That section is now section 178 of the Armed Forces Act 2004, and it provides –

“178(1) If an officer thinks himself wronged on any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make matter to the Forces Council.

(2) On receiving a complaint under subsection (7) of this section, the Force Council shall investigate the matter and grant any redress which appears to the Forces Council to be necessary or if the complainant so required, the Forces Council shall make its report on the complaint in order to seek the directions of the President on the matter.

(3) Subject to subsection (1) of this section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action.”

The appellant, in the affidavit he deposed to, in support of the Originating Summons, shows that he regarded the letter of compulsory retirement as unlawful and so appealed to the 2nd respondent to “investigate my unlawful retirement.” When he failed to get any response, he sent a petition to President Umar Musa Yar’Adua, who set up a committee to investigate the unlawful retirement of the officers of the Nigerian Armed Forces. Nothing came out of it. He then petitioned the Speaker of the House of Representatives. Still the appellant was not informed the result of his letter for redress or his various petitions. When it became obvious that the administrative remedies had failed, he went to court.
The refusal of the Forces Council to respond to the letter for redress by the appellant is condemned. The law imposed a duty on it, to consider the complaint, investigate it and grant the necessary redress if any. Its failure to act is a dereliction of that duty. The Armed Forces as a body, is supposed to be exemplary, in discipline, the world over. To violate the law and retire a member of that body in consequence is not an exhibition of discipline or exemplary conduct. To refuse to act in accordance with section 178 of the Armed Forces Act 2004, and to continue to keep the appellant in suspense, is an abuse of office, calculated at denying the appellant the right to seek redress in a court of law, and that is why the Public Officers Protection Act was invoked. The law does not give reprieve in such a situation. No one will be allowed on the one hand, to act in breach of the law in a high-handed manner, and on the other hand, seek the protection of the law. The courts will not open their doors to such unlawful acts and dereliction of duty, a duty imposed by law.
As earlier opined, the Public Officers Protection Act is meant to shield public officers and bodies, lawfully and conscientiously carrying out their duties, within the scope of their authority, from attack. It is not meant to be used as a sword by public officers acting without good faith and in flagrant disobedience of the law, to attack and maim others, more so when those others, are members of the same family, engaged in the service and defence of our country.

It ought to be plain, that this court will not interpret a legislation in such a manner that violence would be done to its ordinary meaning, and the constitutional rights of the citizens of this country, trampled upon. To accede to the interpretation, that the appellant’s suit is statute-barred, would amount to condoning a flagrant breach of the law and would open a floodgate for public officers to act with impunity and abuse of office. The appellant was prevented from exhausting his administrative remedies to enable him reach the courts, and that act, which is a breach of public duty, cannot be used, to slap the appellant with a limitation law. It is idle to argue, as the respondents have done, that they “did not bother to give the Appellant any answer for only requesting to be given reasons for his compulsory retirement”, a question his letter had answered’ The point had clearly been missed. The issue is that the appellant had forwarded a complaint, and by law, the respondents ought to have investigated the complaint and inform him so and either reverse it, or inform him that the right decision had been reached and nothing further could be done about his plight. It is the failure to do this, that led to the breach of law and the duty imposed by law upon them.
So again, because of the breach of the law amounting to the failure to discharge the public duty imposed on them, the respondents in the circumstances of this case, are not entitled to invoke the provisions of the Public Officers Protection Act, on limitation period. Issues 1 and 2 are resolved in favour of the appellant.

So, having held that the Public Officers Protection Act, in terms of section 2(a) thereof, is not applicable in the circumstances of this case, and that the compulsory letter of retirement of the appellant is null and void and of no effect, I hereby set aside the part of the judgment of the trial court, striking out the Appellant’s claims on the ground that the action is statute-barred. Consequentially, I affirm the part of the judgment of the trial court which granted the reliefs of the appellant, in the terms granted by the trial court.
N30,000 costs to the appellant against the respondents.

JOSEPH TINE TUR, J.C.A.: The appellant instituted the suit by way of Originating Summons on 26th April, 2010 supported by affidavit and documentary exhibits. The appellant’s grievances are set out in a 40 page affidavit sworn to on 26th April, 2010 by the appellant to wit:

“(1) That I am the Plaintiff in this case.

(2) The 1st defendant is established by the provisions of the Air Force Act, 1999 as the Nigerian Air Force.

(3) The 2nd defendant is the most Senior Officer Commanding the Nigerian Air Force and established by the Nigeria Air Force Act.

(4) That by virtue of my position I am conversant and familiar with the facts of this case.

(5) I was born in 2nd July, 1956 and commissioned to the Nigerian Air Force in 1981.

(6) That I gained admission into Nigerian Defence Academy in July 10th, 1978 wherein I was commissioned as platoon officer in January, 1981 upon the completion of my training.

(7) That I worked as an officer with the Nigerian Air Force for about twenty years where I rose to the rank of Wing Commander on 10th of January, 1999.

(8) That some times in 1994 I was appointed the Deputy Defence Adviser (DDA) to United Nations, in New York.

(9) That my appointment was approved by Nigerian Air Force were I worked under the leadership of Defence Adviser Brigadier-General Mohammadu Buba Marwa for a period of one year.

(10) That upon Buba Marwa deployment to Nigeria in 1995 Brigadier-General Ja’afaru Isa took over as the Defence Adviser.

(11) That I worked with Brigadier-General Ja’afaru Isah for two and half years after which in 1998 I was deployed to Nigeria to run a Senior Division Course 21 at Command and Staff College Jaji.

(12) That upon my graduation from Command and Staff College Jaji, I was promoted to the rank of Wing Commander. See attached the letter of promotion and graduation Certificate marked Exhibit “A1” and “A2” respectively.

(13) That after completion of my courses I was given two weeks leave to enable me be with my family.

(14) That shortly after I had commenced my leave I was served with a signal and with a letter of compulsory retirement from the Nigerian Air Force. Copies of letter of retirement and the signal are attached as Exhibit “B” and “B1”

(15) That no reason whatsoever was given for my compulsory retirement.

(16) That I know as a fact, that:

(a) I did not commit any offence or queried in respect of any allegation that may warrant my compulsory retirement.

(b) I was not up to the age of 60 (sixty) years as required by the Executive Regulations.

(c) I was not in any way incapacitated, unsuitable or inefficient in the conduct of my assignment in the Nigerian Air Force.

(d) I was not reported to be unhealthy or unfit to carry out my military assignment in the Nigerian Air Force.

(e) The signatory to Exhibit B has no such power under the Nigerian Air Force Act to sign such letter.

A copy of the Executive Regulations for the Nigerian Air Force made pursuant to the Nigerian Air Force Act is attached herewith as Exhibit “C” and “C1” respectively.

(18) That I waited for quite some times and when I received no response I was prompted to write a petition to the President and Commander in Chief, President Umaru Musa Ya’adua. A copy is annexed as Exhibit “E”.
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(30) That I wrote a reminder in March, 2009 to the Speaker, House of Representative Hon. Dimeji Bankole all to no avail. See copy annexed as Exhibit “H”.

(31) That I know as a fact that my compulsory retirement is unlawful as I was never called upon to make my defence to any allegation of misconduct.

(32) That my retirement was not published in official gazette as required by law.

(33) That I am married with seven (7) children who all look unto me for their maintenance.

(34) That I have gravely suffered for eleven years without any source of livelihood due to my unlawful retirement by the defendant.

(35) That I never relented in exploring all due process in pursuing my complaint.

(36) That it is in the interest of justice that I be reinstated as an officer in the Nigerian Air Force on the rank of Group Captain of the Nigerian Air Force with the payment of all my outstanding salaries and entitlements till date.

(37) That this is so because five years after my tenure as a Wing Commander, I am entitled to be promoted to the rank of Group Captain.

(38) That after attaining the rank, I can then proceed to the War College, Abuja or National Institute of Policy and Strategic Studies (NIPSS), after which I can attain the rank of Air Commander.

(39) That the unlawful compulsory retirement has denied me of all these entitlements and ranks in the Nigerian Air Force.

(40) That I deposed to this Affidavit in good faith conscientiously believing same as true and correct in accordance with the Oath Act Cap 33, Laws of the Federation of Nigeria, 2004.”

The respondents reacted through a 17 paragraph Counter-affidavit deposed to by Faruna Akowe Litigation Clerk in the Legal Unit of the Ministry of Defence Headquarters, Abuja to wit:

“1. That I am litigation Clerk in the office of the Defendants by virtue of which I am conversant with the facts of the case.

2. That I have the consent of the Defendants which was given to me by the second defendant at our office to depose to this Affidavit.

3. That as a matter of fact, paragraph 1 to 8 of the plaintiff’s affidavit is admitted.

4. That paragraph 9 to 11 as matters within the knowledge of the plaintiff and that the defendants are not in the position to accept it, as the plaintiff were not be backed by any supporting document.

5. The defendants are not disputing paragraphs 12 to 14 of the plaintiff’s affidavit in support of the motion.

6. That in response to paragraphs 15 and 16 of the plaintiff’s supporting affidavit, the defendants states as a matter of fact that Exhibit “B” which the plaintiff relied upon in paragraph 14 of his supporting affidavit sets out the broad powers of the Air Force Council to retire personnel and that the Council was not obliged to specify the grounds for invoking its powers. In any case, retirement on the basis of disciplinary reasons, age, incapacity and health are just some of the grounds, a personnel could also be retired if he is found to be unsuitable for retention in the service or for any other reasons, if the circumstances require of which the Air Council remained the sole judge. The plaintiff is put to the strictest proof of his averments that the signatory of Exhibit “B” lacked the authority to sign same.

7. That as a matter of fact, the defendants are not disputing paragraph 17 of the plaintiff’s affidavit as it relates to submission of petition by the plaintiff but aver that since his retirement was lawful, there was no basis for action by the Chief of the Air Staff who, for all intents and purposes, was not synonymous with Air Council.

x x x x x x x x

11. The defendants as a matter of fact admit paragraph 26 of the plaintiff’s affidavit and depose to the fact that the plaintiff was never court-martialled for the offence of espionage or any offence but is anchored on the administrative changes of the Defendants as provided by regulation to which the plaintiff attested to upon commissioning.”

Emerging from a combined reading of the affidavit and counter-affidavit supported by documentary exhibits is the fact that at the time the appellant was compulsorily retired on July 20, 1999 he attained the rank of Wing Commander in the Nigeria Air Force. The respondents admit in paragraph 6 of their counter-affidavit that the broad powers of the Air Council to retire personnel was invoked and that the Council was not obliged to specify the grounds for invoking its powers against the appellant. That retirement on the basis of discipline, age, incapacity and health, etc, are just some of the grounds, a personnel could be compulsorily retired if found to be unsuitable for retention in the service or for any other reasons, if the circumstances require of which the Air Council remained the sole judge.

The implication of the above sworn statement on Oath by Faruna Akowe, Clerk in the office of the respondents is that the appellant did not commit any offence; was not queried in respect of any allegation warranting compulsory retirement. Besides, the appellant had not attained the age of sixty (60) years as required by the regulations governing his appointment into the Air Force before he was compulsorily retired. The Air Council just woke up one morning and, using her broad powers, without specifying any grounds, compulsorily retired the appellant. The onus was on the respondents to have proved in the Court below and in this Court that the Air Council is “the sole judge” to retire an air force personnel or the appellant and under what “circumstances” without his having committed any offence, being issued a query nor confronted with his accusers and giving the appellant the opportunity to be heard before a decision was taken against him. There is no such evidence.

Without mincing words, the acts or conduct of the respondents is a flagrant breach or violation of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides that:

“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The appellant held a statutory and constitutional appointment in the Public Service of the Federation of Nigeria as defined under Section 318(h) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:

“(h) Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.”

Vested or accrued rights cannot be taken away from an employee without prior hearing: Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt. 2) 266 at 278-279; Ojo v. Governor of Oyo State (1989) 1 NWLR (Pt. 95) 1; Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572. In Pett v. Greyhound Racing Association Ltd. (1968) 1 All E.R. 545, Lord Denning held that once the charge concerns a man’s reputation which may affect his livelihood, fair hearing demands that the person should be granted the opportunity to be heard in person or through counsel of his choice before the administering body or authority takes a final and conclusive decision. The appellant breached one of the twin pillars of fair hearing, namely, “audi alteram partem.” Writes H.W.R. Wade, Administrative Law, 4th edition page 421:

“It is fundamental to fair procedure that both sides should be heard: audi alteram Partem, ‘hear the other side’. This is the more far-reaching of the principles of natural justice, since it can embrace almost every question of fair procedure, or due process, and its implications can be worked out in great detail. It is also broad enough to include the rule against bias, since a fair hearing must be an unbiased hearing….”

Section 36(2) of the Constitution of the Federal Republic of Nigeria, 1999 provides thus:

“(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-

(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive.”

Sections 3-5 and 128 of the Air Force Act Cap.15, Laws of the Federation of Nigeria, 1990 provides as follows:

“3(1) Subject to the provisions of this section, there shall be established an air council to be known as the Nigerian Air Council (in this Act referred to as “the air council”) which shall be responsible, under the general authority of the President, for the discipline and administration of, and of other matters relating to, the air force.

(2) The responsibility of the air council shall not extend to the operational use of the air force.

(3) Responsibility for the operational use of the air force (including its operational use in Nigeria for the purpose of maintaining and securing public safety and public order) shall be vested in the Commander subject to the overall direction of the President; and it shall be the duty of the Commander to comply with any directions (whether specific or of a general character) which may be given to him by the President with respect to the operational use of the air force.

4(1) The members of the air council shall be:-

(a) The President who shall be the Chairman of the Council;

(b) The Chief of General Staff;

(d) The Chief of the Air Staff.

(2) The Director-General of the Ministry of Defence shall be the Secretary to the Council.

(3) The Air Council whenever it deems it necessary co-opt any officer or any public officer or any person as a member of the Air Council for the purpose of any particular meeting of the Air Council but such officer or public officer or person shall have no vote and his membership shall cease at the end of the particular meeting.

5. The Air Council may provide for all or any of the following matters:-

(a) The organisation of the work of the air council and the manner in which it shall perform its functions and the duties and responsibilities of the members thereof;

(b) The delegation by notification in the Federal Gazette to any member of the Air Council of any of the Powers or duties of the Air Council;

(d) The procedure to be followed by the Air Council in conducting its business.

x x x x x x x x x x

128(1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer he does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Air Council.

(2) On receiving any such complaint it shall be the duty of the Air council to investigate the complaint and to grant any redress which appears to the Air Council to be necessary or if the nature of the complaint so requires, the Air Council shall report the complaint to the directions (if any) of the President.”

There is nothing to show that the officer who signed the letter compulsorily retiring the appellant from the Nigeria Air Force is or was a member of the Air Council. Besides, no Federal Gazette was exhibited or produced either in the Court below or in this Court notifying that the officer had the mandate to sign the letter in question. The established principle in law is delegatus non potest delegare, namely, a delegated power or authority cannot be sub-delegated to another. See Ndukauba v. Kolomo (2001) 12 NWLR (Pt. 726) 117.

The Air Force Act Cap 15, Laws of the Federation of Nigeria, 1990 is to have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution. The Act is deemed to have been enacted by the National Assembly to the extent that it is a law with respect to matters of practice and procedure which the National Assembly is empowered by the Constitution to make law. See Section 315(1)(2), (4)(a) and (b) of the 1999 Federal Constitution (supra).

Modification of the Air Force Act (supra) has to take into consideration the Fundamental Objectives and Directive Principles of State Policy under Chapter II of the Constitution which reads as follows:

“13. It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.

14(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.”

The State social order is founded on the ideals of freedom, equity and justice. In furtherance of the social order the sanctity of the human person shall be recognized and human dignity maintained and enhanced. See Sections 7(1), (2)(a)-(e) and (3) of the Constitution (supra). Niki Tobi, JCA (as he then was) described “Justice” as, “…that very expensive commodity.” – UBA Plc v. Mode (Nig.) Ltd. (2001) FWLR (Pt.40) 1664 at 1681 paragraph “B”. Aniagolu, JSC also held that, “…it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them” – Afolabi v. Adekunle (1983) 2 SCNLR 141 at 150 paragraph “F”-“G”.

Fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is for the benefit of all the parties involved in any controversy. See Eke v. Ogbonda (2006) 12 SCNJ 29 at 48. The right to be heard is fundamental under Section 36(1)-(2) Chapter IV of the Constitution (supra). Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:

“1(1) This constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

x x x x x x x x

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall be to the extent of the inconsistency be void.”

The respondents’ Counsel made reference to the Air Force Act, 1990 in argument without drawing this Court’s attention to any section which empowers the Air Council to remain the Sole Judge, to exercise her broad powers to compulsorily retire Air Force personnel in general, and the appellant in particular, without the obligation to specify the grounds or circumstances justifying such a drastic measure as the appellant had not attained the retirement age of sixty. If such a provision exists, it surely constitutes a violent attack on the fundamental rights of Air Force personnel in general and the appellant in particular under Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. To that extent, such provision if it exists, but it has not been shown it exists, including the decision of the respondents, be declared null and void. In Benjamin Mcfoy v. United Africa Co. Ltd., Lord Denning held that:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado though it is sometimes convenient to have the Court declared it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will the judgment collapse if the statement of claim was a nullity.”

See Privy Council Decision (1841-1973) by Olisa Chukwura, SAN, 1980 edition, page 866 at 870; (1961) 3 WLR 1405; (1961) 3 All E.R. 1169 and (1962) A.C. 152.
In Nigerian Ports Authority v. Panalpina World Transport (Nig.) Ltd. (1973) 1 All NLR (Pt. 1) 486 the Supreme Court addressed a situation where a plaintiff seeks a declaration that a decision or ruling of an Arbitration Board or Tribunal was “illegal, null and void and of no effect.” Coker, JSC held at page 510 lines 24-39 of the judgment as follows:

“We must now turn to the consideration of whether that decision is in the circumstances “illegal, null and void and of no effect.” The phrase is a compendious legal jargon by which acts done or steps taken by a defendant wrongly are characterized and apart from the claim of illegality which implies that the act or step was done or taken contrary to the relevant law, the other words collectively connote a state of actual nullity and a state of legal no-existence ex tunc. See in this connection the observations of the Privy Council (Lord Upjohn) in the case of Alfred Duroyappah, etc, v. W. J. Fernando & Ors. (1967) 2 A.C. 337 at pp.352 and 353. If as indeed we have concluded the arbitration board’s ruling was given in excess or lack of jurisdiction the ruling is a nullity and a declaration to that effect is the least which the appellants ex debito justitiae are entitled to, at against those who stand to benefit from that ruling.”

Again in Kofi Forfie, Odikoro of Marban v. Barima Kwabena Seifah, Kanya Asehene (1958) 2 WLR 52; (1958) A.C. 59 and (1958) 1 All E.R. 1289 (reported in Privy Council Judgments (supra) page 676 Hon. Mr. L.M.D. DE SILVA held at page 680 thus:

“…A Court has inherent Power to set aside a judgment which it has delivered without jurisdiction. Lord Greene M.R. in Craig v. Kassen (1943) K.B. 256, 262), after referring to several decisions, said: “Those cases appear to me to establish that a person who is affected by an order of which can properly be described as a nullity is entitled to ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it.”

Their Lordships are of the same opinion assuming that the judge had no power on June 29, 1949, to review his judgment of May 10, 1949, he nevertheless had power to declare it a nullity and proceed to give fresh judgment…”

In Chief Kwame Asante v. Chief Kwame Tawa (1949) W.N. 40 reported in Privy Council Judgments (1884-1973), 1980 edition by Olisa Chukwura, SAN at page 432, Lord Simonds held that:

“…If it appeared to an appellate Court that an order against which an appeal was brought had been made without jurisdiction, it could never be too late to admit and give effect to the plea that the order was a nullity…”

The Supreme Court has held that an order of Court is needed to set aside a nullity decision – Akinfolarin v. Akinnola (1994) 4 SCNJ (Pt.1) 30; Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129 and Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382 and Akinbobola v. Plisson Fisko (1991) 1 All NLR (Pt.167) 270 at 299.

Having arrived at the conclusion that the letter dated August, 1999 compulsorily retiring the appellant from the Nigeria Air Force is in breach of his fundamental right to fair hearing under Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, the Public Officers Protection Act (supra) being a limitation statute cannot be a shield to protect the respondents. The Public Officers Act (supra) will not be employed to protect acts or conducts that are null, void or illegal, when done without authority and in violation of the fundamental rights of an aggrieved party. The Public Officers Protection Act is not to be invoked when the acts or conduct complained of constitutes an abuse of the trust imposed on a person or authority. In Abbott v. Sullivan (1952) 1 KB 189 Denning L.J. held at page 198 concerning a trade Union Committee that:

“These bodies, however, which exercise a monopoly in an important sphere of human activity, with the power of depriving a man of his livelihood, must act in accordance with the elementary rules of justice. They must not condemn a man without giving him an opportunity to be heard in his own defence: and any agreement or practice to the contrary would be invalid.”

Since 1874 Kelly, C.B. held in Wood v. Woad (1874) L.R.L.R. 9 Ex. 190 that:

“This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.”

The Public Officers Protection Act does not also apply in cases of breaches of contract, In Nigeria Ports Authority v. Construzioni Farsura Cogefar SPA & Anor. (1974) 11 – 12 SC 81 Dan Ibekwe, JSC held at page 99-101 as follows:

“We shall now deal with the other point which to our mind, does not seem to be well-settled, namely, whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the section the stress which it does not posses. We take the view that the section does not apply to cases of contract. The learned Chief Justice, in deciding this point, made reference to the case of Salako v. L.E.D.B. and Anor, 20 NLR 169 where de Commarmond SPJ as he then was, construed the provision of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Port Act, and thereafter stated the law as follows: “I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc.”
We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. Section 97 of the Ports Act is not intended by the legislature to apply to specific contracts.

It is pertinent to point out that the view which we have just expressed seems to be in consonance with the trend of the judgments pronounced in English cases dealing with similar provisions in certain English Statutes. We shall refer only to one case as an example. In the Midland Railway Company v. The Local Board for the District of Withington (1882-3) 11 QBD, 788, the Court of Appeal construed Section 264 of the Public Health Act, 1875 (38 & 39) Vict. C.55) which, more, or less falls in line with Section 97 of the Ports Act, the subject-matter of this appeal. We think that it is desirable that we should here set out the provision of Section 264 of the Public Health Act, 1975 as follows: “Section 264: A writ or process shall not be sued out against or served on any local authority, or any member thereof, or any officer of a local authority, or person acting in his aid, for anything done or intended to be done or omitted to be done under the provisions of this Act, until the expiration of one month after notice in writing has been served on such local authority, member, officer, or person…”

Delivering the judgment of the Court at page 794, Brett, M.R. made the following illuminating observation:- “It has been contended that this is an action in contract, and that whenever an action is brought upon a contract, the section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract, the section does not apply; according to the cases cited an enactment of this kind does not apply to specific contracts. Again, when goods have been sold, and the price is to be paid upon a quantum meruit, the section will not apply to an action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute.”

We agree with their Lordships’ exposition of the law on this point. Clearly, the appellants’ claim and the 1st respondent’s counter-claim in the present case are founded in contract. The counter-claim, in brief, is for the payment of the balance of money due from the appellants to the respondents as a result of the contract they both entered into for the construction of the second Apapa Wharf Extension.”
See Amao v. Civil Service Commission (1992) 7 NWLR (Pt. 252) 214; Alapiki v. Rivers State Government (1991) 8 NWLR (Pt. 211) 575; Nwankwere v. Adewunmi (1967) NMLR 45 and Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549.

The Notice of Appeal filed on 25th January, 2012 prayed for the following relief:

“An order setting aside the judgment of the lower Court dismissing the plaintiff’s claims on the ground that the action was statute barred, and affirms the other part of the judgment the plaintiff claims.”

This is an appropriate situation to invoke the powers conferred on this Court under Section 15 of the Court of Appeal Act, 2004 to grant relief to the appellant. The trial Court and this Court have the jurisdiction to entertain the Originating Summons which involves merely the interpretation of the provisions of Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered with relevant provisions in the Air Force Act Cap 15, Laws of the Federation of Nigeria, 1990. Time is of the essence. The rights of the appellant need to be expeditiously determined bearing in mind that he was compulsorily retired from the Nigeria Air Force since 20th July, 1999. All efforts to get a sympathetic hearing and to obtain relief from the respondents have met a conspiracy of silence. To remit the case for rehearing before another judge will cause more injustice to the appellant.
The learned trial Judge was ready to grant the remedies but for his erroneous belief that the Public Officers Protection Act protected the respondents. In my view the breach of fair hearing has been alleged and proved by affidavit and documentary exhibits. This Court, like the Court of trial, has examined the affidavit and documentary exhibits and has also looked at the core questions in dispute. There is not an iota of conflict in the affidavits. The reliefs sought in the Notice of Appeal is an indirect way or manner of urging this Court to invoke the provisions of Section 15 of the Interpretation Act (supra) to grant reliefs to the appellant. Decided authorities are in support of the grant of these reliefs in terms in the Originating Summons. See Ezeigwe v. Nwawulu (2010) 181 LRCN 22 at 52 & 55; Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 639-640; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489.
I abide by the orders made by my learned colleague in the lead judgment.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Yahaya, JCA. My learned brother had exhaustively dealt with the issues involved. I am in full agreement with his reasoning and conclusions reached therein.
I join my learned brother in deprecating the misconduct of the Air Force Authorities in trampling on the constitutional rights of the applicant and attempting to cover up their unjustifiable action with the law, namely: Public Officers Protection Law. This law is only meant to protect the actions of a public officer carrying out his lawful official duties. The law is designed to protect an officer who acts in good faith, within the confines of his public duties. It does not apply to acts done in abuse of office or done outside the colour of his office or statutory duty. It will not apply to acts done with no semblance of legal justification whatsoever. As lucidly pointed out by my learned brother, Yahaya, JCA, it was not the duty of Mr. G. O. Udokhai to retire the Appellant. He therefore acted outside the scope of his statutory duty. The case of Ibrahim v. JSC (1998) 14 NWLR (Pt. 583) 1 at p. 32 succinctly expressed the scope of the protection of the law –

“… It can therefore be said that section 2(a) of the Public Officers (Protection) Law, 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of he was his statutory or constitutional duty. Where, however, he acted within the colour of his office, he can only lose protection of the limitation law if he is sued within three months of the act, neglect or default complained of…”

For this short comment and more detailed lucid reasons given by His lordship in the lead judgment, I also allow the appeal.
I abide by the consequential orders made therein including orders as to costs.

Appearances

Solomon BitrusFor Appellant

AND

Respondents unrepresentedFor Respondent