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REPRESENTATION: B.C. Nwobodo Esq. for the Claimant. Mrs Ifesinachi Umeobika, Senior Legal Officer, Ministry of Justice, Enugu State, for the Respondents. JUDGMENT The Claimant took out an Originating Summons dated and filed on 11th February, 2015. He sought the determination of these questions: (1) Whether a public officer of whatever grade in the civil service can be demoted to a lower rank from the Higher Rank he or she occupies without committing any breach of the Rules of service? (2) Whether it is fair, just and in tandem with the Rules of natural justice to demote a public officer to a lower rank without assigning a reason or reasons for such an action? (3) Whether a public officer who has been elevated to the highest office of the permanent secretary can be arbitrarily “demoted” to the Rank of a Director from which he was elevated without violating any known Rules of the Public Service? (4) Whether the Governor of Enugu State can at his pleasure direct that a permanent secretary be “relieved” of his appointment and be reverted to the post of “Director” when regard is had to the provisions of the public service Rules and the provisions of section 208 of the Constitution of the Federal Republic of Nigeria as amended? The Claimant then claims against the Respondents as follows: (a) A declaration that the Claimant as a Public Servant of Enugu State could not have been removed as permanent secretary and demoted to the lower rank of director by the Governor of the state at his pleasure when regard is had to the provisions of section 208 sub section (1) (2) and (5) of the 1999 Constitution as amended. (b) A declaration that the appointment of the claimant as a permanent secretary from the public service of Enugu State was a promotion in line with the public service rules and he could only be demoted to a lower rank when he had committed a proven Act of misconduct to warrant the demotion which ordinarily would go through the civil service commission in accordance with the rules. (c) A declaration that the Governor of Enugu State would not have demoted the Claimant without assigning any reason whatsoever or giving him the opportunity to defend himself which act offended his right to fair hearing as is guaranteed under section 36 of the1999 Constitution upon which he acted. (d) A declaration that the Claimant was the Permanent Secretary of Enugu State at the time he retired on 2nd April 2014 and could not have been demoted to a lower Rank of Director as contained in the letter dated 25th day of February, 2014. (e) An Order declaring as null and void the said decision demoting the Claimant to the Rank of Director as contained in the letter dated 25th day of February, 2014. (f) An Order setting aside the said decision as contained in the said letter of the 25th day of February, 2014 as being ultra vires the powers of the Governor of Enugu State when he demoted the Claimant from the rank of Permanent Secretary to the rank of Director when he did not commit any misconduct of any kind and when he was not given any opportunity to defend himself if at all he had committed any offence or misconduct. (g) An Order setting aside the decision contained in the letter dated 25th day of February, 2014 purportedly reverting the Claimant from the post of Permanent Secretary to the rank of Director as the Claimant was still Permanent Secretary at his retirement on the 2nd day of April, 2014. (h) An Order reverting the Claimant to the post of Permanent Secretary of Enugu State Public Service when he retired from the service on the 2nd day of April, 2014. (i) An Order that the Claimant is entitled to all emoluments, entitlements and perquisites of the office of permanent secretary on his retirement on the 2nd day of April, 2014. The Originating Summons is supported by an affidavit of fifteen (15) paragraphs deposed to by the Claimant himself. Attached to the affidavit are Exhibits A, B, C, D E, F and G. There is also a written address dated 11th February, 2015. Upon receiving the originating processes of the Claimant, the Respondents filed a Memorandum of Appearance dated 22/4/2015 but filed on 23/4/2015. There is also a Counter Affidavit in opposition to the Originating Summons of six (6) paragraphs deposed to by Eze Rosaline, an Executive Officer attached to the Civil Litigation Department of the Ministry of Justice, Enugu State. Attached to the said Counter Affidavit are Exhibits D1, D2 and D3. There is also a written address dated 22nd April, 2015. All the said processes of the Respondents were deemed properly filed and served by the court on 23/4/2015. Furthermore, on the 23rd of April, 2015 the Respondents filed a Notice of Preliminary Objection dated 22nd April, 2015 praying the Court for: 1. AN ORDER dismissing suit NIC/EN/05/2015 (sic) filed on the 11th February, 2015 for being statute barred. 2. AND FOR SUCH FURTHER ORDER(S) as this court may deem fit to make in the circumstance. The particulars of objection were stated as “(1) This suit is not commenced within three (3) months next after the act or default complained as stipulated under section 2(a) of the Public Officers Protection Act. In support of the Notice of objection is an affidavit of six (6) paragraphs deposed to by Eze Roseline, a staff of the Ministry of Justice, Enugu State. Annexed thereto are Exhibits D1, D2 and D3. There is also a written address dated 22nd April, 2015. Thereafter on 6th day of May, 2015 the Claimant filed a reply on points of law to the reply address of the Respondents opposing the Originating Summons. On the same 6th day of May, 2015 the Claimant filed a reply address to the Respondents Preliminary Objection to which the Respondents filed a reply on points of law dated 12th June, 2015 on 16th day of June, 2015. On the 9th day of December, 2015 the parties adopted their respective processes in relation to both the Originating Summons of the Claimant and the preliminary objection of the Respondents. In determining the matter I shall start with the Preliminary Objection of the Respondents and thereafter consider the Originating Summons’ if necessary. On the preliminary Objection, learned Respondents’ counsel formulated and argued a lone issue for determination as follows: Whether or not this action is statute barred having regard to the provisions of Section 2(a) of the Public Officers Act, Cap P41, LFN 2004? Arguing the issue counsel reproduced the provisions of Section 2(a) of the Public Officers Protection Act, Cap P41, LFN 2004 as follows: Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or Authority, the following provisions shall have effect- (a) the action, prosecution or other proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof. Learned counsel then submitted that it is not in doubt in the circumstances of this case that the defendants/applicants are public officers, citing Ibrahim vs Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1. That it is also not in doubt that the claimant’s suit was instituted outside the statutorily prescribed period. This is because the letter relieving the claimant of appointment as a Permanent Secretary is dated 25th February, 2015 (sic). He instituted this action on 11th February, 2015, almost one (1) year after his receipt of the letter. Thus this action was instituted after the prescribed three (3) months and would, by the provisions of Section 2(a) of the Public Officers Protection Act, Cap P41, LFN, 2004, be statute barred. Counsel continued that a cause of action is said to be statute barred if, in respect thereof, proceedings cannot be brought because the period laid down by the limitation law has elapsed. He referred to Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) at 20 and Adekoya vs FHA (2008) 11 NWLR (Pt. 1009) 539. He also referred to Dr Charles Oledeunde Williams vs Madam Williams (2008) 33 WRN 1 at 17-18 lines 40-45 and Ibrahim vs Judicial Service Committee, Kaduna State, supra. Learned counsel further stated that Section 2(a) of the Public Officers Protection Act does not admit of exceptions but he referred to exceptions established by judicial precedents. He stated that in the opinion of Commarmond SPJ in Salako vs LEDB (1953) 20 NLR 169, he stated: I am of the opinion that Section 2 of the Public Officers (Protection) Ordinance does not apply in cases of recovery of land, breaches of contract, claims for the work and labour done etc. He submitted however that the precedent does not apply generally to all contracts but only to cases of specific contracts. According to the Supreme Court in NPA vs Construzionai Generalis FCS (1974) 1 All NLR (Pt2) 463 referred to in the case of FGN vs Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162: We too are of the opinion that de Commarmond SPJ 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. S. 97 of the Ports Act is not intended by the legislature to apply to specific contracts. Counsel further buttressed the view by citing the dictum of Brett M.R. in Midland Railway Company vs The Local Board for the District of Worthington (1882-3) 11 QBD 788 which was referred to by the Court in NPA vs Construzionai Generalis (supra) as follows: 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, the section will not apply to an action upon quantum meruit, 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. Learned counsel then submitted that it must be noted that the exception of contracts from the application of the Public Officers Protection Act does not apply to all contracts generally but only to specific contracts. He continued that a specific contract is one in the nature of a contract for work and labour done or, in the example given by Brett M.R., in the nature of a contract of sale or supply or to specially carry out a work, as against a contract of service as in the instant case. He added that the principle is settled in a long line of cases referring to Nigerian Broadcasting Corporation vs Bankole (1972) NSCC 220; Bakare vs Nigerian Railway Corporation (2007)17 NWLR (Pt. 1064) 606; F.I.R.N. vs Gold (2007) NWLR (Pt. 1044) 1; Musa vs N.I.M.R. (2010) 11 NWLR (Pt. 1205) 271. Learned counsel continued that the statute (Section 2a Public Officers Protection Act) has been further made subject to exceptions by judicial precedent especially where there is bad faith, malice or abuse of office. He referred to Adewunmi Nwankwere (1966) 1 ANLR 122 at 133 & 134andLagos City Council vs Ogunbiyi (1969) 1 ANLR, 287 at 299. Learned counsel further submitted that going by the decision in Egbe vs Alhaji (1990) 1 NWLR (Pt. 128) 546 at 572 paras E-F there has to be a cause of action which must have been instituted within the three months as stipulated by S. 2a of the Public Officers Protection Act and evidence led for the courts to even consider the issue of malice, improper motive and bad faith or abuse of office. In conclusion counsel submitted that on the strength of the authorities cited the protection afforded by the Public Officers Protection Act applies to the defendants in this case as the act complained of was carried out in the performance of a public duty. That the Claimant’s suit does not fall under the identified exceptions of recovery of land, breaches of contract, claim for work and labour done, etc. Neither, going by the authorities particularly Egbe vs Adefarasin and Egbe vs Alhaji, will the allegation of malice, legal justification, bad faith and abuse of office rob the defendants of the protection afforded by the statute. Therefore, by virtue of the provisions of the limitation law, the claimant’s suit is statute barred and as such not maintainable. On his own part, the learned counsel for the Claimant in his reply address stated that the issue for determination is whether the Public Officers Protection Act, Cap P41, LFN, 2004, a federal enactment should apply to Government of Enugu State as an entity and its public officers when the state has its own law relating to it and its officers which is the State Proceedings Law, Cap 146 Revised Laws of Enugu State, 2004? In his argument counsel canvassed that Enugu State is a creation of the Nigerian Constitution. It has powers to legislate for good governance of its people and public officers. Nigeria is a federation. The states are a component part of the Nigerian federation created under its Constitution. They make law for the good governance of their people and institutions. It is in this wise that Enugu State, the 4th Defendant made the law known as the State Proceedings Law Cap 146 for its protection and that of its public officers. Counsel continued that the law provides the time within which to commence action against state, its public officers and steps to be taken before an action is commenced. He referred to section 11(1) of the law the provisions of which are reproduced as follows: (1) No action or proceeding shall lie or be instituted under this law unless it is commenced within Twelve months next of the Act… (2) No action shall be instituted a. Against the State, or b. Against a Public Officer in respect of any act done in pursuance of execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority until the expiration of a period of three months after service in writing has been in the case of the state delivered to the secretary to the government and in the case of public officer delivered to him… Counsel continued that from the above legal postulation it is clear that the Public Officers Protection Act, 2004, a Federal enactment does not apply to Enugu State as an entity or to its public officers. The law applicable to Enugu State and its public officers is the State Proceedings Law, Cap 146, Laws of Enugu State which was fully complied with before this action was instituted.The child of a mother is her child! It is therefore greatly surprising that the defendants did not make any mention of their own law duly made by them rather they chose to filibuster by relying on a law which has no bearing to the case. Learned counsel urged the court to resolve in favour of the claimant that the Public Officers Protection Act, a federal enactment does not apply to Enugu State as an entity and its public officers. He thus urged the court to dismiss the application as lacking in merit and abuse of court process. Replying on points of law, learned defendants’ counsel stated that in the light of the submission of the learned counsel for the Claimant to the effect that the law applicable to Enugu State and its public officers in this case is the State Proceedings Law Cap 146, Laws of Enugu State, as against the general provisions of the Public Officers Protection Act 2004, it is counsel’s submission that the pertinent question to be considered is whether the subject in issue is within the Federal legislative competence in which case where the National Assembly has made a law to cover the field on the subject, the State House of Assembly may not make any enactment which is at variance with the Federal Law. That according to Ogundare JSC in A-G Abia vs A-G Federation (2002) 6 NWLR (Pt. 763) 264 at 435, he stated that The doctrine (of covering the field) renders the paramount legislation predominant and the surbordinate legislation remains un-operative so long as the paramount legislation remains operative. Where of course, there is obvious inconsistency, the surbordinate legislation is void. Learned counsel also referred the court to the case of Olafisoye vs FRN (2004) 4 NWLR (Pt. 864) 580 at 656 -658. He also referred the Court to its decisions in NICN/EN/38/2012 Ambrose Eze vs ESBS & Ors delivered on 17th December, 2012 and NICN/EN/13/2012 Francis Ejike Owoh vs ESBS & Ors. He continued that by virtue of item 34 of the Exclusive legislative list contained in the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 “labour, including trade unions, industrial relations, conditions, safety and welfare of labour, industrial disputes, prescribing a national minimum wage for the Federation or any part thereof, and industrial arbitrations” are matters over which the National Assembly may exercise its legislative powers. Also within the Federal legislative competence is the “Public Service of the Federation including the settlement of disputes between the Federation and officers of such service” under item 53 of the Exclusive list. That the instant subject of limitation of actions against public officers is one which concerns “labour”, a subject over which the National Assembly has, and has exercised its legislative powers. He referred to A-G Abia vs A-G Federation, supra. In the circumstance therefore, counsel submitted, the Public Officers Protection Act being an Act of the National Assembly takes precedence. Furthermore, counsel submitted that the defendants herein are all “public officers” to which the Public Officers Protection Act applies by virtue of the provisions of the 1999 Constitution (as amended). He referred to Sulgrave Holdings Inc. vs F.G.N. (2012) 17 NWLR (Pt. 1329) 309 at 340, paras D-F. He then urged the court to find that the defendants are public officers and are protected under the Public Officers Protection Act. I have carefully considered the arguments and submissions of the parties on this issue of statute bar of this suit. It is quite clear that there is no dispute over the facts of the case over when the cause of action arose and when the suit was commenced. The point of disagreement is in relation to which limitation law governs the suit as between the Public Officers Protection Act and the State Proceedings Law of Enugu State. The Public Officers Protection Act provides for a limitation period of only three months while the State Proceedings Law of Enugu State provides for twelve months with the requirement of pre-action notice of three months. Whereas the defendants have brought their preliminary objection against the Claimant’s suit on grounds of failure to file within three months as stipulated by the Public Officers Protection Act, Cap P41, LFN, 2004, the Claimant contends that it is the State Proceedings Law of Enugu State Cap 146, Revised Laws of Enugu State 2004, which provides for a limitation Law of twelve months that is the applicable law to the suit. Having considered the submissions of both parties it is quite clear to me that going by the doctrine of covering the field the argument of the Claimant that the Public Officers Protection Act does not apply to the suit is not tenable. This is because since the subject of the suit is employment and labour, it is the within the exclusive legislative list and the Act of the National Assembly in the Public Officers Protection Act must be taken to have covered the field. Here, as rightly pointed out by the defendants’ counsel, this court has held in the cases of NICN/EN/38/2012 Ambrose Eze vs ESBS & Ors delivered on 17th December, 2012 and NICN/EN/13/2012 Francis Ejike Owoh vs ESBS & Ors, that it is Section 2(a) of the Public Officers Protection Act that applies to matters of employment and labour and not the State Proceedings law of Enugu State. See also the case of Edobor vs Elf Petroleum Nigeria Ltd (2011) LPELR-4878 (CA), per Awotoye JCA, where the Court in affirming the principle that state law cannot limit the application of a federal law on issue held that: This is important because the statute of limitation relied upon is a state law which cannot limit the operation of Federal Law. See Section 4(5) of the 1979 constitution. See also the following cases NWADIARO & ORS V. SPDC (supra). In S.P.D.C. V. FARAH & ORS (supra) where ONALAJA JCA at page 200 stated: “it is even erroneous to apply the Statute Limitation Law to the Petroleum Act which is Federal Act whilst the Limitation Law is the law of the State. Where there is any conflict under (sic) on Constitutional law between a Federal Legislation and state legislation on the same issue the state legislation shall be void to that extent with the Federal Legislation superceding the same.” A State law cannot limit what the Federal Law has not limited. See also A-G Abia vs A-G Federation (2002) supra. In the circumstance, it is my view which I so hold that the claimant’s suit is statute barred for having been brought in violation of the provisions of Section 2(a) of the Public Officers Protection Act, Cap P41, LFN, 2004. The Honourable Court does not have jurisdiction to hear and determine it. It is accordingly hereby dismissed. I make no order as to costs. Judgment is entered accordingly. Hon. Justice A. Ibrahim, PhD Presiding Judge