IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, Ph.D.
DATE: MAY 14, 2019 SUIT NO. NICN/EN/133/2012
BETWEEN:
Mr. Emmanuel Okonkwo ………………………………………………………Claimant
AND
Federal Polytechnic Oko,
Anambra State
The Registrar, Federal
Polytechnic Oko, Anambra
State
The Rector, Federal
Polytechnic Oko, Anambra
State……………………………………………………………………….Defendants
REPRESENTATIONS
A.N Onyebuchi with K.K. Onyebuchi and G.U. Nnebe, for the Claimant
G.C Enekwechi with I.A. Ezechukwu, A.E. Ekweonu, O.E. Okeke and Obinna E. Nnajiofor, for the Defendants
JUDGMENT
This is a transferred case from the Federal High Court of Nigeria. The claimant had taken a writ of summons (accompanied with a statement of claim, list of documents and documents to be relied upon at the trial, list of plaintiff’s witnesses, deposition of Mr. Emmanuel Okonkwo (The plaintiff), and Notice to Produce), against the defendants dated 21st February, 2011 praying for the following reliefs:
A declaration that the purported termination of the plaintiff’s employment was in breach of Section 17 (1) Federal Polytechnics Act (supra) (sic) as well as Section 36 (1) Constitution of the Federal Republic of Nigeria, 1999 and therefore unlawful, null and void.
A declaration that his employment with the defendant is still subsisting.
An order reinstating the plaintiff fully to his position and accordingly mandating the defendant to pay him all the arrears of his remunerations from the day he was employed by the defendant, 26th May 2006, till date totalling about N51, 103,000.00.
In reaction, the defendants filed a statement of defence dated 10th May, 2011 (accompanied with list of documents, list of witness, statement on oath of Mr. Ben C. Okechukwu- DW and copies of documents.
By order of the Federal High Court of Nigeria dated 10th July, 2012, this suit was transferred to the National Industrial Court on grounds of the exclusive jurisdiction granted the court by section 254C (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2011.
By order of court dated 14th February, 2013, time was extended for the claimant to file his reply to the statement of defence and additional deposition of the claimant already filed with the statement of claim and additional documents to be relied upon at the trial. The request of the defendants to effect consequential amendment to its pleadings was granted; and same to be effected within 21 days from 14th February, 2013.
At trial, the claimant testified on his own behalf as CWI before Justice W. Abali (of blessed memory) and as CW1 de novo and tendered Exhibits CW1 to CW7, while Ben Okechukwu, civil servant and staff of the 1st defendant testified as DW1 and tendered Exhibits DW1/1 to DW1/3; and Ugbo Ifeoma I. , a lecturer at the 1st defendant polytechnic who testified as DW2. At the conclusion of trial, parties were asked to file and serve their respective written addresses. This they did. The defendant’s final written address is dated 6th November, 2018 and filed on 7th November, 2018; while that of the claimant, by order of court extending the time, is dated and filed on 13th February, 2019. The defendant filed a reply on points of law to the claimant’s final address dated 18th February, 2019 and filed on 19th February, 2019.
THE CASE OF THE CLAIMANT
The case of the claimant is that he was offered an academic appointment by the Governing Council of the 1st defendant on 24th May, 2008 as a lecturer III on Hatsis 8 step 2 after a successful employment interview held on 15th December, 2004. That the claimant immediately accepted the said offer of appointment/employment and accordingly filled an acceptance of offer form/letter dated 28th June 2006 and submitted same to the relevant authority/desk of the 1st defendant; that the claimant was duly deployed to the Department of Public Administration where he lectured a course known as “Public Administration in Nigeria” at the Higher National Diploma level; that even though the Bursary Department of the 1st defendant compelled the claimant to be signing the monthly returns as proof of receipt of his monthly salary; which as at the time the claimant was sacked stood at the sum of N 123,000.00 (One Hundred and Twenty Three Thousand Naira Only) per month; the claimant was not pay-rolled even though he was working diligently in the aforesaid Department. That in March 2008, the then Acting Rector, Late C.A. Chinemelu unlawfully, wrongly and illegally terminated the appointment of the claimant orally and without recourse to the requirements of the conditions of so doing contained on the face of Exhibit CW1 and the as (sic) stipulated by the clear provisions of s.17 (1) of the Federal Polytechnics Act, Cap F7, L.F.N. 2004; that the parties are in no doubt that the claimant’s employment has statutory flavour. That notwithstanding the numerous written representations made by the claimant and his solicitor for his reinstatement, the defendants failed and refused to act accordingly; hence the claimant’s claim seeking the reliefs in this suit.
THE CASE OF THE DEFENDANTS
The case of the defendants is that there was never at anytime any employment between the claimant and the 1st defendant; that the claimant and some other persons were victims of a sham recruitment/ employment, which the 1st defendant publicly disclaimed and warned members of the public to be wary of the sham recruitment/employment that was going on at that time. That it suffices that the claimant among other victims disregarded the public disclaimer and conferred upon himself the status of being an employee and even when claimant had knowledge of the 1st defendant’s disclaimer disassociating itself from any process or sham employment that purported/feigned to appoint the claimant and other victims likewise as staff of the 1st defendant.
THE SUBMISSION OF THE DEFENDANTS
The defendants submitted two preliminary issues for determination as to:
Whether Exhibits CW1, CW2, CW3, CW6 and CW7 are not liable to be expunged from evidence on the ground of inadmissibility.
Whether this suit is not statute- barred thereby robbing this Honourable court of its jurisdiction to hear and determine same.
On whether Exhibits CW2, CW3, CW6 and CW7 are not liable to be expunged from the evidence on the ground of inadmissibility, the defendants submitted as of first importance that issued were firstly joined on the documents in the pleadings before they were eventually admitted in evidence as Exhibits CW1,CW2, CW3, CW6 and CW7. Reference was made to The British India General Insurance Company Nigeria Limited v. A. Thawardas (1978) LPELR- 3165 (SC) pages 10-11, paragraphs G-B; paragraphs 15 and 16 of the statement of claim filed on 21st February, 2011 and paragraph 12 (d) of the Amended Statement of defence filed on 3rd April, 2017. In the light of the foregoing joinder of issues, the defendants maintained that the onus became heavier on the claimant to strictly prove that he actually made the representations as feigned in Exhibits CW1, CW2, CW3, CW6 and CW7 to the 1st defendant as he pretended in his pleadings. That the community effect of section 89(A) and 91 of the Evidence Act, 2011 is that the claimant has the evidential burden to show by credible evidence that the original documents were/are in the possession or power of the defendants before he can give a meaningful “Notice to Produce” as to entitle him to give secondary evidence of the existence, condition, or contents of those purported documents/representations; that there is no single feature on the face of the purported representations/documents/letters same that of 25th October, 2010 which shows in any wise that those representations were made to the defendants. That assuming without conceding that all those representation were made to the defendants, it becomes imperative to note that there is equally absolutely no foundation in evidence led to show that Exhibits CW1, CW2, CW3, CW6 and CW7 are the same with the ones claimed to have been written to the defendants. That the defendants have moreover vehemently contended that the representation dated 25th October, 2010 (Exhibit CW3) was made by the claimant in anticipation of this case; that by the application of section 83 (3) of the Evidence Act, 2011 the said representation is inadmissible in evidence being a statement made by person interested (the claimant) at a time when this proceeding/action was anticipated involving a dispute as to the purported employment tends to prove.
The defendants invited the court to expunge from evidence Exhibit CW1, CW2, CW3, CW6 and CW7 on the grounds of their respective inadmissibility; and to treat them as if it (sic) had never been admitted. In the alternative, the defendants urged the court to ascribe no probative value to those documents.
Concerning whether this suit is not statute-barred thereby robbing this Honourable court of it jurisdiction to hear and determine same, the defendants submitted that the defendants are public officers within the context of the public officers protection Act and as public officers sued as such, this action was bound to have been commenced against them within three (3) months of the accrual of the cause of action; that for the avoidance of doubt, the defendants submitted that in the case of Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1 at p. 38 the Supreme court per Iguh JSC stated that the term “Public officer” has by law been extended to include a ‘public department and therefore, an artificial person, a public officer or public body’. That it is elementary law that in order to ascertain the time when the cause of action accrued, for the purpose of the Limitation Law, the court only looks at the Writ of Summons and the Statement of claim which usually alleges when the wrong committed by the defendant took place, and then the court will compare the relevant time found in the statement of the claim with the date when the writ of summons was filed. Reference was made to Aremo II v. Adekanye (2004) 13 NWLR (pt 891) 572 at 592-593, paragraphs H-A; Mr Tunde Folarin & anor v. Comrade Sam A. Idowu & ors (2013) LPELR -22123 (CA) page 25, paragraphs D to E; Ihewoaba v. Oyedeji (2013) LPELR – 20365 (CA), pages 40-41 paragraph C; Oke v. Oke (2006) 4 NWLR (pt 1008) 224 at 242 paragraphs C to D; and Alhaji Mustapha Buka Mulima & anor v. Hajia Aishatu Usman & ors (2014) 16 NWLR (pt 1432) 160 at 199 paragraphs C to D.
The defendants went on that in the case at hand, the court would glean from the claimant’s pleading that the purported cause of action arose sometime in March 2008 but the action (this suit) was commenced in 21st day of February, 2011; that in paragraph 7 of the statement of claim filed on 21st February, 2011, the claimant averred as follows:
“7. The plaintiff diligently and conscientiously discharged his duties as a Lecturer in the department aforesaid from the date he resumed work until March 2008 when the acting Rector, Late C.A. Chinemelu asked him orally to stop work without any reason or justification”.
That instructively, section 2 of the Public Officers Protection Act provides inter alia that where any action is to be commenced against a Public Officer,: “ The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of , or in the case of a continuance of damage or injury, within three months next after the ceasing thereof”. That between March 2008 and February 2011 is a period of over twenty four (24) months, and thus the action had become statute- barred as at the time it was commenced, hence this court had no jurisdiction to entertain same in the light of the applicable laws. The defendants then urged the court to so hold and accordingly dismiss this suit. That it needed to be emphasised that at this point what the court will look at is the date stated by the claimant in his pleadings as the day the cause of action allegedly arose which is march 2008 and the date the action was instituted (February 2011).
The defendants then submitted the main issue for determination, namely: whether, on the preponderance of evidence, the claimant has proved his case as to be entitled to the reliefs sought in this suit. To the defendant, for any one of the reliefs especially the declaratory reliefs to be granted to the claimant, he has the legal burden to establish or prove that: (a) he is an employee of the 1st defendant, and (b) his employment was unlawfully terminated. In view of the aforesaid burden, the defendants sought the leave of court to formulate and address two sub- issues under the sole issues for determination, to wit: (a) whether the claimant is an employee of the 1st defendant; (b) whether the claimant employment was unlawfully or wrongly terminated.
Regarding the issue of whether the claimant is an employee of the 1st defendant, the defendant, as a preamble to the determination of this issue, urged the court to take judicial notice that often times, public institutions are usually faced with spurious incidents of fake employment recruitment by some fraudsters with unsuspected members of the public; that often, advertisements of recruitments are made even when the public institution has not authorised same and the most any public institution can do in the circumstance is to denounce any of such recruitment and warn members of the public to be wary of the sham recruitment; that in the instant case, it is quite a puzzle how the claimant who undoubtedly is a victim of a sham employment would insist that he is an employee of the 1st defendant even after he has acquired knowledge of the irregularity with which his purported employment is tainted.
The defendants again contended that the onus is on the claimant to establish his claim of being a genuine employee of the 1st defendant; that the claimant as CW1 adopted his depositions on oath as his evidence in chief; that in the course of his evidence in chief he tendered a letter of acceptance of offer of appointment dated 20th June, 2006 admitted as Exhibit CW1; that the rest of the documents identified as Exhibit CW2 to CW7 were not tendered with a view to establish proof of his employment as the documents bear no relevance in that regard; that Exhibit CW2, CW3, CW6 are letters of complaint whereas Exhibits CW4 and CW5 are evidence of his educational qualification; that hence, of material consideration in this suit is only Exhibit CW1, the purported letter of acceptance of offer of appointment dated 28th June, 2006. The defendants submitted therefore that acceptance of an offer can only be predicted on the existence of an offer; that it is only when there is an offer, that there can be an acceptance of an offer. That if that be the case, one would expect the claimant to prove that he was offered an employment by the 1st defendant in the first place. That in accordance with the customs and usage of public institutions, employment is communicated to an eligible staff by means of letter of offer of appointment, to which the recipient or beneficiary of the said letter is expected to communicate acceptance of same through a letter of acceptance of same through a letter of acceptance of offer of appointment. The defendants submitted that there is no such letter of offer of appointment in this case and this is because no offer of appointment was ever made by the defendants to the claimant in this suit; that Exhibit CW1 has no weight to be ascribed to it regarding the issue under consideration; that for the purpose of evaluating Exhibit CW1, it is important to clearly note that the claimant himself is the maker of that document; that the said letter was purportedly addressed to the 1st defendant, however, there is nothing on it to show that it was received or acknowledged to have been received by the official records of the 1st defendant; that Exhibit CW1 is a weightless and worthless paper and bears no evidential value; that it is no evidence of an admission of employment by the 1st defendant, and cannot in any way be inferred as proving such.
The defendants proceeded that the non-employment or defective employment of the claimant was further exposed during cross-examination on 16th November, 2017 when the claimant as CW1 gave evidence, to wit: “… I was never paid at all by the defendant in my work with them. I worked from 2006 to 2011 without payment…..” To the defendants, the above evidence further substantiates the facts that there was never an admission of employment by the defendants; that the claimant’s case might have had a bit of standing had it been it was established that the defendant at any time paid the claimant but later ceased to pay the claimant; that would perhaps have given an inference that there was an employment ab initio; but that is not the case as the claimant has not received a dime since his purported employment; that also, from the series of his alleged letters indentified (sic) as Exhibits CW1, CW3 and CW6; it is manifest that the claimant has not and is not in any way integrated or organised by the 1st defendant as a staff within the institution; that his name is not on the pay-roll and has never been; that there is further nothing in fact to show by the conduct of the claimant that he was appointed as a staff of the 1st defendant. The defendants further submitted that failure of the claimant to tender in evidence/ prove that purported letter of offer of appointment dated 24th May, 2006 as he pleaded in paragraph 4 of the statement of claim has rendered the said pleading which forms the bedrock of the claimant’s case liable to collapse (go to no issues) ; that the said pleading as fundamental to the claimant’s case as it may was abandoned as no legal evidence is led in support thereof.
Additionally, the claimant also contended during cross-examination that he has a staff identification number; to wit FPO/CNS/115; but when asked to show evidence of the staff identification number, he answered thus: “My staff identification number is FPO/CNS/115. I deny the suggestion that I do not have any document to show that I have such staff identification number. The document is in my file in the school. I cannot present any identification in court because it is in cloud (sic). I deny the suggestion that I do not have any file with my identification in the defendant institution.” To the defendants, the operation of presumption of withholding evidence must apply here; that for a document as important as proving the staff identification number to be tactically kept aside raises some eyebrows; that surely, there can only be one inference, that is, the non existence of the staff identification number or perhaps another likely inference that if such document is even produced, same will contradict the postulation of the claimant. That, in other words, the evidence of the claimant that he has a staff identification number holds no water and is unsubstantiated by his pleadings or any evidence; and the court to so hold. The defendants that from the unshaken evidence of DW1 and DW2 which both supported the pleadings in the defendants’ amended statement of defence, it could not possibly be said that the claimant is a lecturer in Public Administration Department of the 1st defendant institution.
The defendant also urged the court to dismiss this suit on the ground that granting same would result in creating an unhealthy precedent; that from the evidence led in this suit and having serious regard to the disclaimer issued by the 1st defendant to the public, the claimant having actual or constructive notice of the disclaimer by the 1st respondent denouncing the sham recruitment, the claimant still went ahead to participate in the unlawful/ illegal recruitment and was thus defrauded by the perpetrators of the sham recruitment; that the defendants like every public institution should not be held liable for a sham employment it did not consent to or create, more so, where the defendants have in unequivocal terms taken steps to dissociate themselves or disclaim the sham recruitment and communicating same to the public. That even the claimant admitted in his 2009 letter that they were all to (sic) asked to stay away from the school; that it will be beyond remoteness of damage for a public institution to be liable for every victim of sham recruitment/employment. The defendants thus urged the court to resolve this issue in favour of the defendants and hold that the claimant was never an employee of the 1st defendant as he feigned to be in this case.
On the issue of whether the claimant employment was unlawfully or wrongly terminated, the defendants submitted that this issue is an academic issue as there was no employment that would have been and/ or was terminated. That the claimant in his evidence testified that his employment was terminated verbally/ orally; that he also testified that he was asked to stop work but that he continued to come to work; that during his cross-examination on 15th March, 2018, he said that it was one Professor Godwin Onu that told him to stop work, quite contrary to his earlier account evidenced in Exhibit CT1 admitted in evidence wherein he earlier testified that it was Professor Yusup and Professor Uba that stopped him from working. That Exhibit CT1 was admitted in order to contract and discredit him in that regard. Reference was made to Koyili v. Yilbuk & ors (2015) LPWLR- 24323. (SC) page 68 paragraph A-C. that whichever be the case, the import of the claimant’s evidence substantiates the fact that the defendant did not lead the claimant in any wise by any conduct to believe, presume or think that he was under their lawful employment; that the evidence of the claimant on this issue proves that the defendants resisted with vehemence any attempt by the claimant to legitimize his sham employment; that the case of the claimant will become more dead and buried when his evidence under cross-examination and his pleading on the purported termination of his feigned/ alleged employment are called into consideration in the light of the applicable laws. That in the absence of any employment proved vide any legal evidence, whether expressly or impliedly, it is submitted that the issue of whether or not same was wrongly or lawfully terminated cannot arise; that the claimant is such an unreliable witness that the basic elements of his claim were punctured in cross-examination and the court cannot pick and choose which one is true. The defendants then urged the court to resolve the sole issue herein raised and argued, in favour of the defendants.
In conclusion, the defendant urged the court to dismiss the claimant’s case for being statute- barred or alternatively on the grounds that on the preponderance of evidence, the claimant has failed to prove his case so as to entitle him to the reliefs especially the declaratory reliefs sought by him in this suit.
THE SUBMISSIONS OF THE CLAIMANT
The claimant adopted the two preliminary issues conceived by the defendants but not with correcting the enumeration contained in the 1st issue in view of the claimant’s preceeding argument, seeking the court’s leave in so doing, to wit:
Whether Exhibits CW2, CW3, CW4, CW7 and CW8 are liable to be expunged from the evidence on the ground of inadmissibility.
Whether this suit is not statute-barred thereby robbing this Honourable court of its jurisdiction to hear and determine same.
Issue 1 relates to whether Exhibits CW2, CW3, CW4, CW7 and CW8 are liable to be expunged from evidence on the ground of inadmissibility. To the claimant, it is a trite principle of law that the basis of admissibility of a document is on relevance ( and nothing more). Reference was made to UTC v. Lawal (2013) 56 (part 2) NSCQR 1014 at 1038; Mogaji v. Nigerian Army (2008) 8 NWLR (pt 1089) 338; Ogbunanyinya & ors v. Okudo (1979) 6-9 SC 32; (1979) ANLR 105 at 112-113; Fadailah v. Arewa Textiles Ltd (1997) 7 SCNJ 202 at 212. That the test for admissibility is based on relevance and the courts are not to be concerned with how evidence was obtained; citing Aghamovo v. Eduyegbe (1999) 3 NWLR (pt. 594) 188 ; nor proper custody; referring to Umuogbai v. Aiyemhoba (2002) 9 NWLR (pt 771) 689 at 694 paras B-C; Adebayo v. Adubei (2004) 4 NWLR (pt 862) 44 at 80-81; that there is a distinction between admissibility and weight of evidence; citing UNIC v. UCIC Ltd (1999) 3 NWLR (pt 593) 7 at 24. The claimant therefore submitted that all the 8 documents tendered by the claimant, that is, Exhibit CW1 to CW8 are relevant to the facts and circumstances of this case the proper foundation for their relevance having been laid; and therefore they are admissible irrespective of how few of them were obtained or the custody from which they were obtained or the custody from which they were produced; and claimant urged the court to so hold. To the claimant, the major stricture he has to surmount before he can give secondary evidence of the contents of any of the documents is to demonstrate that the original copies of the said document (sic) are shown or appears to be in the possession or power of the person against whom such document is sought to be proved; or that any person legally bound to produce it has been given notice to produce same (as prescribed by s.91 Evidence Act, 2011) and such person does not produce it. Reliance was placed on s. 89 (a) (i) & (ii) of the Evidence Act, (supra); paragraphs 5, 15 and 16 of the statement of claim dated 21st February, 2011 and paragraph 2 and 4 of Reply dated 6th June, 2011. That these relevant pieces of pleadings are also supported with clear and appropriate depositions and are therefore not abandoned; that the claimant has thus proved strictly that he actually made the representations as feigned (adopting the language of the defendants’ counsel per last paragraph of page 5 of the written address) in Exhibits CW2, CW3, CW4, CW7 and CW8.
The claimant went on and submitted that the “Notice to Produce” is sufficient, being amply pleaded and also given ex abundati cautela in a separate process frontloaded alongside the originating process all dated 21st February, 2011; that same is also meaningful because the operative conditions redolent in s.89 (a) (i) & (ii) Evidence Act (supra) is that the original copy has to be shown or it has to appear to be in possession or power of the person against whom the document is sought to be proved; or any person legally bound to produce it. The claimant contended that the above pleadings, process and the concomitant depositions are sufficient to ground the conclusion that the original copies of all the Exhibits in quo are shown and appear to be in the defendants’ possessions; and urged the court to so hold.
What is more, that apart from Exh. CW2 (Letter of Acceptance dated 28th June, 2006) original whereof the claimant pleaded that he filed and submitted to them H.O.D. Public Administration, Late Mr. Charles Moumife per Paragraph 2 (d) of the Reply pleadings dated 6th June, 2011, the other exhibits (that is, Exhs. CW3, CW4, CW7 and CW8) are the claimants personal correspondence to the defendants which in law cannot be rightly situated within the meaning of secondary evidence per S. 81 of the Evidence Act (supra); that these correspondences are indeed primary evidence of their respective contents by the definition of S. 86 (4) Evidence Act (supra). claimant submitted that the said Exhs CW3, CW4, CW7 and CW8 were made by one uniform process of printing with the computer electronically and each of the copies was signed by the claimant and his counsel (Where applicable) and they are not copies of a common original; that in other words, the personal copies of the exhibits in issue are original copies of the contents and are therefore admissible; and urged the court to so find and hold.
On admissibility, the claimant submitted that all the documents tendered by him (that is, Exhs CW1 to CW8) are admissible having fulfilled the three trite (sic) tests/ criteria of being pleaded, being relevant and being in the proper form; relying on Daggash v. Bulama (2004) 14 NWLR (pt 892) 204; that the magnanimity of the law on this point is further demonstrated by the principle that even when a piece of evidence is not pleaded; it can still go in if there are facts to support it; let alone, where there is no scintilla of proof by the defendants in this suit suggesting that any of the exhibits in issue were not pleaded, not relevant nor being in improper form; citing NNPC v. A.I.C. Ltd (2003) 2 NWLR (pt 805).
On the defendants’ argument that Exh. CW4 ( the solicitor’s letter dated 25th October, 2010) having been made by the claimant in anticipation of this case is in breach of S. 83 (3) of the Evidence Act (supra) and as such should be expunged, the claimant consented that the provisions of s. 83 (3) aforesaid is not cast in an absolute mould; that it admits of some exceptions, because it is not every person who has anything to do with the subject matter of a dispute can fall into the definition of “ a person interested”. Reference was made to UTC v. Lawal (supra) in which case the Supreme Court held that “ a person acting in an official capacity is generally not considered to be a person interested.”; also Nigeria Social Insurance Trust v. Klifco Nigeria Ltd (2010) 13 NWLR (pt 1211) 307; High Grade Maritime Service Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (pt 167) 290; that Exh CW4 is a letter written by the claimant’s counsel on behalf of the claimant and for the benefit of the claimant, without more, 4 months before the inception of the suit; that there is nothing placed before this Honourable Court to suggest that I.A.N. Onyebuchi, Esquire, claimant’s counsel have (sic) any personal interest or stake in the outcome of the litigation or that I (sic) acted other than in my (sic) official capacity in the course of composing the letter aforesaid; that, in fact, the judgement of W.S.N. Onnoghen JSC per p. 1036 of the authority of UTC v. Lawal (supra) specifically precludes the application of s. 91 (3) Evidence Act, now 83 (3) Evidence Act, 2011 where a solicitor writes letter for his/her client in his/her their (sic) (solicitor’s) professional capacity. That for the above reasons, the claimant urged the court to finally and substantively admit all of the said exhibits in evidence, ascribe high probative value to them, rely on and favourably consider them in the course of writing the judgement in this suit.
At trial, the claimant objected to the admissibility of Exhibits DW1/1, DW1/2 and DW1/3. In final address, the claimant firstly submitted that Exhibit DW1/1 being a public document frontloaded alongside the defendants’ statement of defence, was a mere photocopy and was not otherwise certified. That the copy therefore lacks all the features of certification as no foundation of same was laid, namely: evidence of payment of the prescribed fees, date of certification, subscription by the certifying officer with his/her name, official title and seal in tow as prescribed by the mandatory provisions of s. 103 (1) (2) Evidence Act (supra) ; reference being made to Adeyefa v. Bamgboye (2013) 54 (pt 1) NSCQR at pp. 336- 337; that the probative value, if any of Exh. DW1/1 is further diminished by DW1 under cross- examination on 23rd May, 2018.
Regarding Exh. DW1/2, the claimant submitted that apart from the fact that the service copy and perhaps the original copy of the circular dated, 10th October, 2007- Exh DW1/2 was not certified, its genuineness or authenticity is in serious doubt because the signature specimen of the maker Mr. Ben Okechukwu, endorsed thereon is widely different and egregiously with that of the same person (Mr. Ben Okechukwu) endorsed on his substantive deposition made on 10th May, 2011 and his additional deposition made on 14th July, 2014 respectively; that by virtue of S. 101 of the Evidence Act (supra) it is proved that : “ in order to ascertain whether a signature or writing is that of the person by whom it purports to have been written or made, any signature or writing admitted (as in Exh. DW1/2) or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved.” The claimant invited the court to compare the signature of Mr. Ben Okechukwu (DW1) in the two depositions earlier mentioned, on the one hand; with the one endorsed on the circular dated 10th October, 2007 (Exh. DW1/2), on the other hand; and accordingly expunged the said exhibit as being worthless and void. Reliance was placed on AG. Abia State v. Agharanya (1999) 6 NWLR (pt 608) 371.
Concerning Exh. DW1/3, the claimant submitted that apart from the fact that DW1 is not the maker of the Assumption of Duty Certificate (Exh. DW1/3), he did not lay foundation as to the where about of the owner of the purported Exh DW1/3, Mr Kenneth Ezekwe, his physical or mental weakness or why it will be reasonably impracticable to secure his attendance to court; that the admissibility of the said exhibit therefore is negated by the rule of documentary hearsay provided by s. 83 (1) of the Evidence Act (supra) with special reference to the exception contained in section 83 (1) (b) thereof; reference being made to order 15 Rule 1 (c) of the National Industrial Court Nigeria (Civil Procedure) Rules, 2017. That Exh DW1/3 was not frontloaded and served alongside the additional deposition of DW1 dated 14th July, 2014; that this omission is fatal when viewed further from the prism of the mandatory provision of order 1 Rule (2) (sic) of National Industrial Court Nigeria (Civil Procedure) Rules, 2017; that the Rules of court are made to, and must be obeyed at all times; citing Ezegbu v. FATB (1992) 1 NWLR 220 at 669; that the failure to frontload the said document is grossly over- reaching and violates the claimants right to fair hearing and as such cannot be sanctioned or condoned by this Honourable Court because the right to fair hearing attracts heinous consequences if breached, as it touches the root of any action; referring to Bank & ors v. Akure North Local Government Council (2015) 6 NWLR (pt 1455) p. 421, paras F-G.
On the basis of the above argument, the claimant urged the court to expunge Exhs DW1/1, DW1/2 and DW1/3 or in the alternative ascribe little or no probative value to them.
On preliminary Issue Two, whether this suit is not statute barred thereby robbing this Honourable Court of its jurisdiction to hear and determine same, the claimant submitted that the provisions of the Public Officers’ Protection Act, which are founded on the antiquated common- law doctrine of crown immunity, are not applicable to the facts and circumstances of crown immunity, are not applicable to the facts and circumstances of this case; that by virtue of Public Officers’ Protection Act since the year 2016, there is now an increase of the limitation period from 3 months period up to 3 years due to the hardship and injustice it occasions on litigants; that this is the current and operative state of the law on the point; that between March 2008, when the claimant was asked to stop work, and February 2011, when this suit was initiated, the claim of the claimant was still alive and not statute barred. The claimant contended further that by s. 18 of the Interpretation Act , Cap I 92, LFN, 2004, the 1st defendant is not and cannot be said to be a public officer; that the other defendants (2nd and 3rd defendants) are mere nominal and statutory offices of the 1st defendant and not officers of same; much less Public Officers within the definition of any law in Nigeria. To the claimant assuming, for a moment, that there is a statutory limitation of this suit, the superior command of the constitution of the Federal Republic of Nigeria, 1999, as amended, per s. 6 (6) (b) thereof nullifies the purport of such positive law. The claimant urged the court, in the main, to discountenance the defendant’s argument on the above two preliminary issues.
Concerning the main issue submitted by the defendant for determination, to wit: whether, on the preponderance of evidence, the claimant has proved his case as to be entitled to the reliefs especially the declaratory reliefs sought in this suit; and as argued on the premises of two sub- issues raised by the defendant, the first praxis was whether the claimant is an employee of the 1st defendant. On this, the claimant maintained that he established elsewhere that his letter of offer of appointment dated 24th May, 2006 was duly admitted in evidence, even though provisionally, on 16th November, 2017; and as narrated by DW1 under cross- examination on 23rd May, 2018; that the question now is of what value and content is the defendants’ argument to the effect that the claimant failed to lead evidence of the existence of an offer of Employment that is capable of being accepted; that the answer is : nil; that counsel to the defendant misdirected himself and his energy in that wise; that indeed, Exh CW1 remained unchallenged throughout the course of trial.
The claimant submitted that in law, there is no general precept or norm stipulating the form which a contract of employment must take; that it may either be in writing, under seal (in deed), by word of mouth or by contract. Reference was made to E,E Uvieghara, The Contract of Employment, Malthouse Press Ltd (2001) p.21. That in the instant case, there is not only a contract of employment existing between the 1st defendant as an employer, “ on the one hand; and the claimant as “an employee”, on the other hand; that the claimant’s employment indeed has all the trappings and features of an employment with statutory flavour and it is so; that it is amply pleaded and supported with evidence that like every other contract, there was a valid offer (Exh CW1) and a valid acceptance (Exh CW2) of the employment; and thus the claimant and the 1st defendant are ad idem on the terms of the claimant’s employment; referring to paragraphs 4, 5 and 6 of the statement of claim dated 21st February 2011.
To the claimant, his narrative on the staff identity number FPO/CNS/115 which card is in the claimant’s file kept in the custody of the 1st defendant; the evidence of DW1 under cross- examination on the nullification of the employment of some staff by management of 1st defendant in 2006 and DW1’s lack of first- hand knowledge of same; and the evasive hollow and unhelpful testimony of DW2 did not establish that the claimant’s employment with the 1st claimant’s (sic) was caught up by the said employment nullification exercise or that it was a sham; that the argument of counsel to the defendants that the claimants employment was a sham is a mere fanciful piece of counsel’s address which in law cannot take the place of evidence. Reference was made to Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (pt 67) 784; N.E.N Ltd v. Dental Ltd (1997) 10 NWLR (pt 525) 481 and Okwleye v. Adesanya (2014) 12 NWLR (1422) 521.
On whether the claimant’s employment was unlawfully or wrongly terminated, the claimant submitted that where an employee complains that his employment was unlawfully or wrongly terminated he/she has the onus to prove the wrong by: (a) placing before the court the terms and conditions of the contract of employment; and (b) proving in what manner the said terms were breached by the employer. Reference was made to Morohunfola v. Kwara State College of Technology (1990) 4 NWLR 506; John Oforishe v. Nigerian Gas Company Ltd (2018) NWLR (pt 1602) p.61 Paras D-E; National Drug Law Enforcement Agency v. Mohammed Zakari (2015) 7 NWLR (pt 1458) 376 paras. E-G; WAEC v. Oshioneh (2015) 12 NWLR pt 994) p. 258. That the above case law requirements/ingredients are amply contained in the claimant’s pleadings, particularly in paragraphs 4, 13 and 14 of the statement of claim dated 21st February, 2011; that these pleadings are supported with the claimant’s depositions and more elucidated by the contents of Exh CW1.
The claimant argued further that he was neither given one month’s notice (nor any notice for that matter) nor one month’s salary in lieu of notice as contemplated per Exh. CW1 before his employment was orally terminated; that by virtue of the first schedule, section 1 (a) of the Federal Polytechnics Act, Vol. 6 Cap. F.7, Laws of the Federation of Nigeria 2004; the 1st defendant is a Federal Polytechnic; thus the employment of all the members of its staff has statutory flavour; that the termination of the appointment of any academic, administrative and technical staff of the 1st defendant, other than Rector, must accord with the principles of fair hearing and other statutory safeguards as contained in s.17 (1) of the Federal Polytechnics Act (supra). It is the claimant’s case that all the steps enunciated and prescribed by section 17 (1) of the Federal Polytechnics Act (supra) were disregarded by the defendants in the course of terminating the claimant’s employment with the 1st defendant; that in keeping with the ancient maxim/ principle of Ubi Jus ibi remedium viz-a-viz its applicability in the event of an unlawful termination of a contract of employment with a statutory flavour, the Supreme Court has held in the cases of Olaniyan v. University of Lagos (1985) 2 NWLR (pt 9) p 599; Shitta Bey v. Federal Civil Service Commission (1981) sc 41 and other notable cases, that where termination of the employment of an employee, whose employment (as in the instant case) has a statutory flavour, is found to be wrong, the court may order specific performance of the contract, injunction or reinstatement. The claimant therefore urged the court to find and hold that he was employed by the 1st defendant and his employment has statutory flavour; and that same was wrongfully terminated thereby entitling claimant to the relief of reinstatement and the other ancillary reliefs claimed in the originating processes.
It is the claimant’s contention that the defendants’ counsel made a fetish of some alleged contradictions in the evidence of the claimant as to the particulars or details of the termination of the claimant’s employment; that the law is that it is not every discrepancy in the evidence of a witness that is sufficient to destroy the credibility of such witness; that such discrepancy must be extreme and material enough to ground such effect. Reference was made to Afolaju v. The State (2010) 43 NSCQR 227 at 243- 244. That this case emanated in the year 2011, some years after the claimant’s disengagement from duty; and has passed through four(4) different (sic) judges before it finally got to the sitting Judge’s desk that thus effluxion of time and the rigours of the litigation process is capable of befuddling the mind of the claimant to commit some circumstances surrounding his sack from work; that the important issue is that the claimant was sacked and the defendants are not denying that fact; that (therefore) discrepancies as to who sacked the claimant and when he was sacked are not substantial and fundamental to the issues in question in this suit.
In conclusion, claimant prayed the court to resolve the issues in this final address in favour of the claimant and accordingly grant all the reliefs sought in this case.
DEFENDANTS’ REPLY TO THE CLAIMANT’S FINAL ADDRESS
In the main, and as the heading above suggests, the defendants’ reply on points of law was merely a rehash of its arguments and/or a cocktail of reply argument on issues/ points of law. This is a novel phenomenon, I must say. I shall accordingly highlight only the arguments in the final written address that are appropriately replies on points of law.
Firstly, the defendants submitted that the claimant’s contentions and submissions in his Final Address are at variance with the pleadings, the legal evidence, the record of this court and the law applicable to the facts of this case; that the law is trite that cases are normally not decided on address but on credible evidence; that no amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or disprove and demolish points in issues; referring to John NWebube v. Chukwunonso Ntephe (2016) LPELR- 42150 (CA) pages 13-14 paragraphs F to C; that the court is bound by its record which is the true reflection of what transpired in the court; citing Mohammed v. Nigerian Army (2016) LPELR- 41594 (CA0 pages 9-10, paragraphs F-A. That at page 2, paragraph 1.05, the claimant purported to set out the documents he tendered in evidence which were admitted and marked by the court; that the claimant departed cleverly from the record of this court by purporting that “ Letter of Appointment dated 24th May, 2006” was tendered, admitted in evidence and marked Exhibit CW1 contrary to what is contained in the court’s record of the proceedings of the 16th day of November, 2017; that in Fawehinmi Construction co Ltd v. OAU (1998) LPELR- 1256 (SC) page 10 paragraph B, the Supreme Court made it clear that : “Record of proceedings is the only indication of what took place in court. It is always the final reference of events, step by step, that took place in court.” Reference was also made to Sommers &ors v. FHA (1992) LPELR – 3103 (SC) page 11, paragraphs C to E. the defendants therefore invited the court to look into the record of the court and make use of the contents thereof lest the court be dribbled by the cleverness of the claimant.
In reply to the legal argument canvassed by the claimant at page 10-12 in paragraphs 2.0.2.3 to 2.0.2.6 of his final Address on the application of section 83 (3) of the Evidence Act, 2011 vis-à-vis the admissibility of Exhibit CW3, the defendants referred the court to UTC (Nig) Plc v .Lawal (2013) LPELR- 23002 (sc) pages 32-34 paragraphs D to A wherein the Supreme Court Juxtaposed “ a person interested” with “ an independent person” as they relate to the application of Section 83 (3) of the Evidence Act, 2011; that in the instant case, the solicitor who made Exhibit CW3 made pursuant to the claimant’s instruction and this having made the letter pursuant to the facts presented by the claimant, the solicitor cannot be said to be “ completely detached” as to exclude the application of Section 83 (3) of the Evidence Act, 2011; the defendants thus maintained that Exhibit CW3 is inadmissible not only in view of Section 89 (a) of the Evidence Act,2011 but also in view of Section 83 (3) of the Evidence Act, 2011.
On the admissibility of the documents tendered by the defendants, the defendants submitted that the three documents marked as Exhibits DW1/1, DW1/2 and DW1/3 are all admissible; that the documents are public documents in the light of Section 102 of the Evidence Act, 2011; and are certified true copies duly certified in accordance with Section 104 of the Evidence Act, 2011; that the admissibility of the said exhibits is supported by the community application/ effect of sections 87 (a), 89 (e); 90 (1) (c) and 105 of the Evidence Act, 2011; and that Exhibits DW1/1, DW1/2 and DW1/3 were rightly admitted by the court; and the court to so hold.
Regarding the issues of DW1’s signature, the defendants argued that it is a notorious fact that a person may have more than one signature and/or even decide to change his/her signature from time to time; that parties are bound by their pleadings; that since the parties in this case did not in any wise join issues on the signature of Mr. Ben Okechukwu (DW1), the clever invitation by the claimant’s counsel to the court to invoke Section 101 of the Evidence Act, 2011 is liable to be discountenanced. The defendants urged the court to jettison such unfounded invitation as same is not supported and/ or warranted by the pleadings and evidence before the court; that there is no basis to resort to Section 101 of the Evidence Act, 2011 when the claimant did not even bother to test the veracity and credibility of DW1 vis-à-vis the witness’ signature (s).
In reaction to the claimant’s particularised argument canvassed at pages 14 to 16 of the claimant’s Final Address in relation to the admissibility of Exhibit DW1/3, the defendants replied that the law is settled that failure to frontload a document does not render the document inadmissible; that the 1st defendant is the maker of Exhibit DW1/3 and DW1 testified that he is a staff of the 1st defendant and once served as the Acting Registrar of the 1st defendant; and thus, is in a position to tender the said document to prove a relevant fact in issue; that in fact, even if DW1 is not the maker of Exhibit DW1/3, the said document will still be admissible on the authority of the Supreme Court’s pronouncement in Omega Bank (Nig) Plc v. O.B.C Ltd (2005) LPELR- 2636 (SC) page 36 paragraph F wherein the court held inter alia that: “As a matter of Law documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1979) 9-10 SC 179….”
Concerning preliminary Issue Two, whether the Public Officers Protection ( Amendment) Act 2016 has retrospective effect as to resurrect the claimant’s cause of action which has become statute- barred long before the amendment came into force, the defendants argued that on seeing the lifelessness of his cause of action, the claimant’s counsel decided to cleverly cite the provisions of the Public Officers Protection (Amendment) Act, 2016 and relied heavily thereupon to argue that the limitation period for the action should be reckoned as three years and no longer three months; that claimant’s counsel argued as if he does not know that the applicable law should be the law which was in operation as at the time material to this case; that it is noteworthy that the Public Officers Protection ( Amendment) Act, 2016 was not in force as at the material time when the claimant’s cause of action accrued and as at the time the said cause of action became dead (statute barred). Reference was made to Chief Etuedor Utih & 6 ors v. Jacob Umurhurhu Onoyivwe & 5 ors (1991) LPELR – 3436 (SC) page 121 paragraphs D to E and Edua Okafor v. Alexander Ibeziako and Ior (1965) LPELR- 25470 (sc) pages 6-7, paragraphs F to A.
The defendants continued that the claimant has failed to cite any language in the Public Officers Protection (Amendment) Act, 2016 which suggests any intention by the legislators to make the amendment apply/ operated retrospectively; that accordingly, it is submitted by the defendants that the said Public Officers Protection (Amendment) Act, 2016 cannot by any stretch of principle of law be interpreted to operate retrospectively as to resurrect/ revive the claimant’s dead cause of action; that the law which is applicable to this case is the Public Officers (Protection) Act, Cap. P41, LFN, 2004. That the claimant’s argument that the 1st defendant is not and cannot be a public officer for the purpose of application of the public officers (Protection) Act, Cap. P41, LFN, 2004 savours of misconception because the law has been long settled on that point in plethora of cases. Reference was made to O.J. Babatunde & anor v. Augustine Eluwa (2011) LPELR-8829 (CA) page 10, paragraph C to E.
In the premises of the foregoing submission, the defendants insisted that all the defendants are public officers and that the claimant’s cause of action had become statute barred and therefore dead on arrival; and the court to so hold.
COURT’S DECISION
I have carefully considered the processes and submissions of the parties as far as this case is concerned. In doing that, I am mindful that a claim is circumscribed by the relief claimed. See Gabriel Ativie v. Kabelmetal Nig. Ltd (2008) LPELR-591 (SC). The claimant’s claim is for: (a) A declaration that the purported termination of the plaintiff’s employment was in breach of Section 17 (1) Federal Polytechnics Act (supra) (sic) as well as Section 36 (1) Constitution of the Federal Republic of Nigeria, 1999 and therefore unlawful, null and void; (b) A declaration that his employment with the defendant is still subsisting; (c) An order reinstating the plaintiff fully to his position and accordingly mandating the defendant to pay him all the arrears of his remunerations from the day he was employed by the defendant, 26th May 2006, till date totalling about N51, 103,000.00.
I turn to the defendants’ reply argument on preliminary/main issues/points of law which I indicated was merely a rehash of the defendants’ argument in the final written address and I dare say novel or unprecedented. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. By law, where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the court. See Ecobank Nigeria Ltd v. Anchorage Leissures Ltd & ors (2016) LPELR-40220 (CA); Cross Country Ltd v. A.G Moeller Ltd (2014) LPELR-24091 (CA); Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC) and Dr. Augustine N. Mozie & ors v. Chike Mbamalu (2006) 27 NSCQR 425.
The defendants first raised two preliminary issues for determination: 1. whether Exhibits CW1, CW2, CW3, CW6 and CW7 are not liable to be expunged from the evidence on the ground of inadmissibility; 2. Whether this suit is not statute-barred thereby robbing this Honourable Court of its jurisdiction to hear and determine same.
On preliminary Issue One, the defendants submitted that issues were firmly joined on the documents in the pleadings before they were eventually admitted in evidence as Exhibits CW1, CW2, CW3, CW6 and CW7; that in the light of paragraphs 15 and 16 of the statement of claim filed on 21st February, 2011 and the claimant’s averments vide paragraph 12 (d) of the Amended Statement of Defence filed on 3rd April, 2017, the onus became heavier on the claimant to strictly prove that he actually made the representations as feigned in Exhibits CW1, CW2, CW3, CW6 and CW7 to the 1st defendant as claimant pretended in his pleadings.
To the defendants, the community effect of section 89 (A) and 91 of the Evidence Act, 2011 is that the claimant has the evidential burden to show by credible evidence that the original documents were/are in the possession or power of the defendants before he can give a meaningful “Notice to Produce” as to entitle him to give secondary evidence of the existence, condition, or contents of those purported documents/representations. That there is no single feature on the face of the purported representation/documents/letters save that of 25th October, 2010 which shows in any wise that those representations were made to the defendants; that assuming without conceding that all those representations were made to the defendants, it becomes imperative to note that there is equally absolutely no foundation in evidence led to show that Exhibits CW1, CW2, CW3, CW6 and CW7 are the same with the ones claimed to have been written to the defendants, that moreover, it was the defendants’ contention that the representation dated 25th October, 2010, that is, Exhibit CW3 was made by the claimant in anticipation of this case; that by section 83 (3) of the Evidence Act, 2011 the said representation is inadmissible in evidence.
On the premises of the above submissions, the defendants urged the court to expunge from the evidence Exhibits CW1, CW2, CW3, CW6 and CW7 on the grounds of their respective inadmissibility and to treat them as if it (sic) had never been admitted; and in the alternative, to ascribe no probative value to those documents.
In reaction to the defendants’ arguments, the claimant submitted that it is a trite principle of law that the basis of admissibility of a document is on relevance (and nothing more). Reference was made to UTC v. Lawal (2013) 56 (pt.2) NSCQR 1014 at 1038; Mogaji v. Nigeria Army (2008) 8 NWLR (pt.1089) 338; Ogbuanyinya & ors v. Okudo (1979) 6-9 SC 32; (1979) ANLR 105 at 112-113; Fadallah v. Arewa Textiles Ltd (1997) 7 SCNJ 202 at 212. That the test of admissibility is based on relevance and the courts are not to be concerned with how evidence was obtained; nor proper custody; that admissibility should be based on relevance and not proper custody; that proper custody only raises an issue of presumption or the weight to be attached to the evidence. Reference was made to Aghamovo v. Eduyegbe (1999) 3 NWLR (pt 594) 188; Umuogbai v. Aiyemhoba (2002) 9 NWLR (pt 771) 689 at 694; Adebayo v. Adesei (2004) 4 NWLR (pt 862) 44 at 80-81; and UNIC v. UCIC Ltd (1999) 3 NWLR (pt 593) 7 at 24.
The claimant submitted that all the 8 documents tendered by the claimant, that is Exhibits CW1 to CW8 are relevant to the facts and circumstances of this case, the proper foundation for their relevance having been laid; and therefore they are admissible irrespective of how few of them were obtained or the custody from which they were produced. The claimant urged the court to so hold.
Concerning Exhibit CW4-the claimant’s solicitor’s letter dated 25th October, 2010, the claimant argued that the provisions of section 83 (3) of the Evidence Act, 2011 are not cast in an absolute mould; that it admits of some exception because it is not every person who has anything to do with the subject matter of a dispute that falls into the definition of “a person interested”; citing UTC v. Lawal (supra); Nigeria Social Insurance Trust v. Klifco Nigeria Ltd (2010) 13 NWLR (pt 1211) 307; High Grade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (pt 167) 290. To the claimant, the decision of the Apex Court in UTC v. Lawal (supra) specifically precludes the application of section 83 (3) of Evidence Act, 2011 where a solicitor writes a letter for his/her client in the solicitor’s professional capacity.
For the arguments canvassed, the claimant urged the court to admit all of the said exhibits in evidence, ascribe high probative value to them, rely on and favourably consider them in the course of writing the judgment in this suit.
In reply on points of law, the defendants submitted that where a document is relevant and even pleaded, it may be rendered inadmissible by an applicable law; going by Suberu v. State (2010) 8 NWLR (pt 1187) 586 at 640; that the purported “Notice to Produce” given by the claimant to the defendants has no evidential plank to stand since there is no direct, credible evidence as to where the originals of Exhibits CW1, CW2, CW3, CW6 and CW8 are and/or as to whether the defendants are in possession of those documents especially where the defendants vehemently denied ever being in possession of them; referring to Union Bank v. Egbokhare & anor (2017) LPELR-41621 (CA); that the solicitor who made Exhibit CW3 made same pursuant to the claimant’s instruction and thus having made the letter pursuant to the facts presented by the claimant (a person interested), the solicitor cannot be said to be “completely detached” as to exclude the application of section 83 (3) of the Evidence Act, 2011 by UTC (Nig) Plc v. Lawal (2013) LPELR-23002 (SC).
I have carefully considered the submissions of the parties on preliminary Issue One. As a policy, minded by section 12 of the National Industrial Court Act, 2006, this court relaxes the evidential requirement of sections 89 and 91 of the Evidence Act, 2011. When secondary evidence of the existence, conditions or contents of documents is in issue; admitting such documents but reserving the probative value for consideration in terms of the merit of the case. As it is, therefore, Exhibits CW1 to CW8 remain admitted; their evidential or probative value will be determined in terms of the merit of the case.
On preliminary Issue Two, whether this suit is not statute-barred thereby robbing this Honourable Court of its jurisdiction to hear and determine same, the defendants submitted that they are public officers within the context of the Public Officers Protection Act, and as public officers sued as such, this action was bound to have been commenced against them within three (3) months of the accrual of the cause of action; that for the avoidance of doubt especially vis-à-vis the status of 1st defendant as a public officer, the defendants submitted that by Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1 at 38, the term “public officer” has by law been extended to include a ‘public department’ and, therefore, an artificial person, a public officer or ‘public body’; that it is elementary law that in order to ascertain the time when a cause of action accrued for the purpose of the Limitation Law, the court only looks at the Writ of Summons and the statement of claim which usually alleges when the wrong committed by the defendant took place, and then the court will compare the relevant time found in the statement of claim with the date when the writ of summons was filed. Reference was made to Anemo II (sic) v. Adekanye I(2004) 13 NWLR (pt 891) 572 at 592-593, paragraphs H to A; Mr. Tunde Folarin & anor v. Comrade Sam A. Idowu & ors (2013) LPELR-22123 (CA) page 25, paragraphs D to E; Ihewoaba v. Oyedeji (2013) LPELR-20365 (CA) pages 40-41, paragraph C; Oke v. Oke (2006) 4 NWLR (pt. 1008) 224 at 242, paragraphs C to D and Alhaji Mustapha Buker Mulina & anor v. Alhaji Aishatu Usman & ors (2014) 16 NWLR (pt 1432) 160 at 199, paragraphs C to D.
The defendants continued that in the case at hand, the court would glean from the claimant’s pleading that the purported cause of action arose sometime in March, 2008 but the action (this suit) was commenced on 21st day of February, 2011; that in paragraph 7 of the statement of claim filed on 21st February, 2011, the claimant averred as follows:
“7. The plaintiff diligently and conscientiously discharged his duties as a Lecturer in the department aforesaid from the date he resumed work until March 2008 when the then actin Rector, Late C.A. Chinemelu, asked him orally to stop work without any reason or justification.”
That instructively, section 2 of the Public Officers Protection Act provides inter alia that where any action is to be commenced against a public officer: “The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof”; that between March 2008 and February 2011 is a period over 24 months, and thus the action had become statute-barred as at the time it was commenced; that hence this court has no jurisdiction to entertain same in the light of the applicable laws; the defendants urged the court to so hold and accordingly dismiss this suit.
In reaction, the claimant submitted that the provisions of the Public Officers Protection Act, which are founded on the antiquated common law doctrine of crown immunity, are (sic) not applicable to the facts and circumstances of this case; that by virtue of Public Officers Protection Act, 2016, there is now an increase of the limitation period from 3 months period to 3 years due to the hardship and injustice it occasions on litigants; that the extant provisions of section 2 (a) of the Public Officers Protection (Amendment) Act, 2016 is the current and operative state of the law on the point; that therefore, the period between March 2008 and February, 2011 when this suit was initiated makes the claim of the claimant still alive and not statute –barred.
To the claimant, by section 18 of the Interpretation Act, Cap. I92, LFN, 2004, a “public officer” means ‘a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State,” that curiously, the interpretation section, that is, section 318 of the 1999 Constitution proffers the definition of ‘public service of the Federation’ as “the service of the Federation in any capacity in respect of the Government of the Federation, and includes services as: (f) staff of any educational institution established by an Act of the National Assembly.” It was the claimant’s contention that, in any event, the 1st defendant is not and cannot be said to be a public officer; that the other defendants (2nd and 3rd defendants) are mere nominal and statutory officers of the 1st defendant; and not officers of same; much less public officers within the definition of any law in Nigeria.
That assuming for one moment that there is a statutory limitation in the real sense of barring the initiation of this suit, the superior command of section 6 (6) (b) of the 1999 Constitution nullifies the purport of such positive law.
The claimant therefore urged the court, in the main, to discountenance the defendants’ argument on the two preliminary issues.
In reply on points of law, the defendants submitted that the Public Officers Protection (Amendment) Act, 2016 was not in force as at the material time when the claimant’s cause of action accrued and as at the time the said cause of action became statute barred; that by Chief Etuedor Utih & 6 ors v. Jacob Umurhurhu Onoyivwe & 5 ors (1991) LPELR-3436 (SC) “… it is a principle of interpretation of statutes that unless there is express provision therein, or a clear intention that the provision shall operate retrospectively, there is a presumption against retrospectivity…”; that the claimant has failed to cite any language in the said Public Officers Protection (Amendment) Act, 2016 which suggests any intention by the legislator to make the amendment apply/operate retrospectively.
On the issue of persons protected by the Public Officers Protection Act, the position of the law is that the protection offered by the Act covers and protects all public officers, that is, all civil servants in their individual capacity and all government bodies, public institutions and agencies, ministries, and departments, by whatsoever name called and whether corporate or unincorporated, whether sued by their official titles or not so long as they are sued in respect of an act or acts done in pursuance or execution of any law or any public duty or authority. See Ibrahim v. JSC (supra). See also Peoples Democratic Party v. All Progressive Congress & ors (2015) LPELR-25704 (CA); Rahamaniyya United Nigeria Ltd v. Ministry of Federal Capital Territory & ors (2008) LPELR-8391 (CA); and Mshelia v. Nigerian Air Force & anor (2014) LPELR-23732 (CA). By paragraphs 2 the statement of claim and deposition of the claimant dated and filed 21st February, 2011: “The 1st defendant is a tertiary educational institution created by the statute, that is, the Nigerian (sic) Polytechnics Act, Vol. 6, Cap F17, Laws of the Federation of Nigeria, 2004; while the 2nd and 3rd defendants are principal organs of the 1st defendant.” Having carefully considered the submissions of both parties on the issue of persons protected by Public Officers Protection Act, and on perusal of the pleadings filed by both parties, I am satisfied that the defendants are persons and/or public officers and government bodies engaged in the execution of public duties at all times material to this suit; and are by law fully protected by the Public Officers Protection Act, and I so find and hold.
The Public Officers Protection Act is a Statute of Limitation. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See AG Rivers State v. AG Bayelsa State & anor (2012) LPELR-9336 (SC) and Ajayi v. Adebiyi & ors (2012) 5 SCNJ (pt II) 458 at 480-481. Section 2 (a) of the Public Officers (Protection) Act provides a time frame within which a public officer must be sued if any aggrieved person feels dissatisfied with any act, default or neglect in the performance of the public officer’s official duties- and it is that such suits must be filed within three months of the act, default or neglect in question; and if it is a continuing injury, the suit must be filed within three months after it has ceased. See Donbraye & anor v. Preyor & ors (2014) LPELR-22286 (CA), Hassan & ors v. Borno State Government & ors (2016) LPELR-40250 (CA); Ogunbanwo v. Obafemi Awolowo University, Ile-Ife (2016) LPELR-40291 (CA) and INEC v. Ogbadibo Local Govt. & ors (2015) LPELR-24839 (SC).
In the claimant’s deposition filed in court on 21st February, 2011, the claimant stated in paragraph 4 that he was offered an academic appointment as a Lecturer III on Hatiss 8 step 2 vide letter of offer of appointment dated 24th May, 2006; that he diligently and conscientiously discharged his duties as a lecturer in the department of Public Administration at the Higher National Diploma level until March 2008 when the then Acting Rector, C.A. Chinemelu (now deceased) asked claimant orally to stop work without any reason or justification (see paragraph 7); that all times material to the claimant employment with the 1st defendant, he was not paid any remuneration by the defendant (see paragraph 9); that the claimant made numerous and varied representations to the 1st defendant through the 2nd and 3rd defendants to be fully reinstated to his post and be paid the arrears of all his remunerations without success; that these representations include a letter written by the claimant dated 30th August, 2010 and another written by claimant’s counsel dated 25th October, 2010 both of which were addressed to the 3rd defendant (see paragraph 15). The writ of summons of this suit was dated and filed on 21st February, 2011. In paragraph 7 of claimant’s deposition, he states that Acting Rector of 1st defendant, C.A. Chinemelu, terminated his appointment in March 2008. The claimant stated under cross examination on 31st January, 2017 that his appointment was terminated in 2010. Under cross examination de novo on 15th March, 2018, the claimant stated that his appointment was terminated by Professor Godwin Onu on February 18, 2010. Therefore, the date of accrual of the cause of action, in my view, is 18th February, 2010; and I so hold. Placed against the date of filing this suit, that is, 21st February, 2011, that makes it 12 months in between the date of the accrual of the cause of action and the date of filing this suit in court. The claimant failed to prove that the Public Officers Protection (Amendment) Act 2016 is with retrospective effect and as such can save the claimant’s suit. Claimant’s submissions on same are accordingly discountenanced; and I so hold. Section 6 (6) (b) of the 1999 Constitution does not avail the claimant in this suit particularly as the court has no jurisdiction to determine an issue which was not properly placed before it. See Agbai v. Ukpabi & ors (2013) LPELR-21263 (CA); Musendiku v. Laidi & ors (2010) LPELR-4565 (CA) and Charles & anor v. Governor of Ondo State & ors (2012) LPELR-9332 (CA). Therefore, this suit, having been filed 12 months after the date of accrual of the cause of action, is statute-barred by virtue of Section 2 (a) of the Public Officers Protection Act; and I so find and hold.
Having resolved that this suit is statute-barred, it is my determination that the court cannot proceed to consider the substantive/main issues on their merits since the court is no longer seised of the jurisdiction to do so. Going forward tantamounts to an academic exercise; and courts are not allowed to compete with academic institutions in the resolution of hypothetical questions. See Kubor & anor v. Dickson & ors (2012) LPELR-9817 (SC).
This suit is accordingly dismissed. I make no order as to costs.
Judgment is entered accordingly.
Hon. Justice John I. Targema, Ph.D.
Judge
