Download PDF
The claimant filed this action against the defendants by way of a complaint dated 14th June 2013 and filed on the 12th day of July 2013. By the said complaint, the claimant claims against the defendant as follows: a. A declaration that the purported dismissal of the claimant by the defendant via a letter of dismissal dated April 22, 2009 but received on 13th July 2009 is unconstitutional, illegal, null and void. b. A declaration that the claimant is still a staff of the defendant and thereby entitled to all his salaries, allowances and remuneration from April 2009 till date. c. An order awarding the sum of Five Million Naira (N5,000,000.00) only to the claimant as general damages suffered by the claimant for the psychological trauma and pains he was subjected to as a result of the illegal action of the defendant. d. And any other order or orders as this honourable court may deem fit to make in the circumstances of this case. By a motion on Notice dated the 24th day of October 2013 and filed on the 28th day of October 2013, and brought pursuant to Orders 15 and 26 of the Rules of this court, the defendant Applicant seeks an order of this court setting down for hearing and determination, the following preliminary point of law raised in paragraph 3 of the defendant’s statement of defence on record, that is: i) That this suit is statute – barred, in that the claimant commenced the suit against the defendant, a public officer, more than 3 months after the cause of action arose contrary to the provisions of section 2(a) of the Public officers Protection Act, Cap P41 Laws of the Federation of Nigeria 2004, thus robbing this Honourable Court of the jurisdiction to entertain the suit. ii) An order dismissing this suit for being incompetent. In support of the motion on notice is a 13 paragraph affidavit deposed to by one Ibitoye Jimo Oyewale, a Human Resource Management Officer with the defendant. Also in support is a written address canvassing arguments in support of the motion, and which the Applicant’s counsel adopted as his argument in support of the application. In opposition, Claimant/Respondent filed a 5 Paragraph Counter Affidavit and a Written Address, which he adopted as his argument in opposition to the application. The Defendant/Applicant then filed a Reply on points of law, which Counsel also adopted. The defendant/applicant formulated only one issue for determination, and that is: Whether this suit is statute – barred, having regard to the facts disclosed in the Statement of facts and the law. It is Counsel’s submission that what determines the jurisdiction of the court is the facts contained in the Claimant’s Statement of Facts, Paragraph 2 of which states that the defendant is a statutory body in charge of conduct of examinations for West African Students. Counsel submitted that the defendant is a public officer, going by the provisions of the WAEC Act. Applicant’s counsel further submitted that Section 2(a) of the Public Officer’s Protection Act provides a 3 month limitation period within which an action such as this can be brought. He stated that the Claimant was dismissed from the service of the defendant on the 13th day of July 2009, and as averred in the Statement of Fact and that the Claimant filed this suit on the 12th day of July 2013, four years after the cause of action arose. Counsel Relied on the authorities of Alhaji Aliyu Ibrahim vs. Judicial Service Committee, Kaduna State & Ors (1998) 12 SC 20 and Forestry Research Institute of Nigeria vs. Gold (2007) 5 SC 201 where the Supreme Court has held that the privilege offered by the Public Officers’ Protection Act is available to natural persons as well as to statutory bodies that have acquired legal personality, provided they are in execution or purported execution of public duty. He further submitted that Section 1(2) of the WAEC Act has clothed the Defendant with legal personality, and that it had power to enter into agreements with any person, including contracts of employment in its service, for the purpose of carrying out its Statutory duties and functions which are all public duties and functions, and that it can also make rules on the general Conditions of Service of its servants. Counsel cited the case of Shamsideen Aboloke Bakre vs. Nigerian Railway Corporation (2007) 7-10 SC 1, and urged the Court to hold that the Defendant is a Public Officer and that it was in performance of its public duties that it dismissed the Claimant from its service. He also urged the court to hold that this suit is statute barred and dismiss the suit accordingly, relying on the authority of Nigeria Ports Authority Plc. vs. Lotus Plastics Ltd and Anor (2005) 12 SC (part 1) 19 @ 36 where the Supreme Court held that the proper order to make would be dismissal where it is found that the suit is statute barred. Responding, Counsel to the Claimant/Respondent in his written Address answered in the negative, the poser as to whether the defendant is a public officer entitled to enjoy the protection under Section 2a of the Public officers’ Protection Act Cap P41 LFN 2004. Counsel submitted that the Defendant is not a Public Officer but an Institution. He submitted that the Public officers’ Protection act did not define who a Public Officer is, but Section 18(1) of the Interpretation Act defines a Public Officer to mean a member of the public Service of the Federation within the meaning of the Constitution of the Federal republic of Nigeria 1999 or the Public Service of a State. Counsel went further state the definition of public service of the Federation as contained in the provisions of Section 318(1) of the Constitution 1999 as amended. He submitted that it is a misconception to say that the defendant is a public officer. Replying on points of law, the applicants contended that the use of the word “includes” in Section 318(1) of the Constitution makes the defendant fall within (c) or (e), and that the defendant is a statutory body established by an Act of the National Assembly, that conducts public Examinations in West Africa, and that it cannot lose its statutory privileges merely because it has foreign affiliates. I have carefully considered arguments of Counsel on both sides, their affidavits and authorities cited. It is pertinent to determine the question as to “Whether or not the Defendant is a public officer for the purpose of the Public Officers’ Protection Act”. Section 1(1) of the West Africa Examinations Council Act states as follows: “The institution known as the West Africa Examinations Council shall continue to be in existence in Nigeria and shall, in accordance with the provisions of this Act, continue to discharge it’s responsibility for holding such examinations in Nigeria as may be necessary in the public interest in the same manner as (pursuant to the laws respectively in force in the other territories in West Africa as defined in Section 24 of this Act) it may hold examinations in such territories.” Section 2 of the West Africa Examinations Council Act goes ahead to state the functions of the West Africa Examinations Council. The Court of Appeal in the case of Bureau of Public Enterprises vs. Reinsurance Acquisition Group Ltd & Ors, (2008) LPELR-8560 (CA), has held as follows: “The persons whom the provisions of the Public Officers Protection Act would not cover are persons who are independent contractors for the provision of services for a public of services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers’ Protection law does not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles” The Court of Appeal went further to state that: “The intention of the legislature in the Public Officers Protection Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment.” From the foregoing provision of the West Africa Examinations Council Act, it is not in doubt that the West Africa Examinations Council is an institution vested with responsibilities to carry out specific public functions as outlined in Section 2 thereof. I therefore hold that the defendant is a Public Officer, and therefore protected by the Public Officers’ Protection Act, Cap P41 Laws of the Federation of Nigeria 2004. The Supreme Court in the case of Ibrahim vs. JSC Kaduna State & Ors (1998) 12 SC 20 had sufficiently resolved the question as regards the exact category of persons contemplated by law, for whom protection is afforded when it held that “any person as provided by S.2 public officers protection law of Northern Nigeria are not limited only to natural person or human beings or to persons sued in their personal names. Unless the contrary intention is indicated, and no such intention therein manifested, those words in the Public officers (protection) law include persons known to law inclusive of artificial persons, public bodies or body of persons corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not; so long as they are sued in respect of an act or acts alone in pursuant or execution of any law or any public duty of authority” Going by the authorities of Ibrahim vs. JSC Kaduna State and Forestry Research Institute of Nigeria vs. Gold (Supra), viz-a-viz the statement of facts and documents attached, I am inclined to conclude that the defendant acted within the scope of its authority. Having thus held, the next and most pertinent question is whether or not the suit is statute barred. Section 2(a) of the Public Officer’s Protection Act provides that 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 of 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 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. A cause of action is said to be statute barred if it the period of limitation prescribed by statute has elapsed before the action is brought. The law is quite settled as to how to determine whether a suit is statute barred. This involves the determination of the date on which the cause of action arose and comparing same with the date on which the suit was filed. If the date on which the suit was filed shows that the Claimant came outside the period within which he should have come to court, the suit will be held to be statute barred. See Hassan vs. Aliyu (2010) LPELR-1357 SC p.81 Paragraphs D-F. Per Adekeye JSC. In the case of Adekoya vs. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) Pg. 539, the Supreme Court held Per Tabai JSC, that this comparison can be done without taking oral evidence from witnesses. In the instant case, the Claimant in his statement of Claim alleges in Paragraph 24 that on the 13th of July 2009, the defendant served him a letter of dismissal dated April 22, 2009. This forms the cause of action of the Claimant, which amounts to challenge of his wrongful dismissal. The Claimant filed the complaint in this case at the National Industrial Court Enugu division on the 12th day of July 2013. The law under which the defendant/applicant raised its preliminary objection is the Public Officers Protection Act Cap P41 LFN 2004 which provides that the Claimant should have come to Court within three months from the date of accrual of the cause of action. This means that the Claimant ought to have filed this action within three months from 13th July 2009 when he was served with the letter of dismissal, but he did not do so until 12th July 2013 which is about four years after. This means that the Claimant came to court outside the statutory limitation period and the defendant, being a public institution, is protected from being sued in such circumstance, i.e. outside the three months period. See Hassan vs. Aliyu (2010), supra. The Claimant does not dispute the two basic facts above, namely the date that the cause of action arose, and that on which he came to court. He nonetheless argued that his case is not caught up by the limitation provided by Section 2a of POPA. His main defence is that the Defendant is not a Public Officer, therefore, not entitled to the protection under Section 2a of POPA. In the circumstance therefore, and for all the reasons given, I hold that the defendant is a public officer entitled to protection under Section 2a of the Public Officers Protection Act Cap P41 LFN 2004. It is my holding that this action is statute barred having been brought outside the three month period stipulated by Section 2a of the Public Officers Protection Act Cap P41 LFN 2004. The Preliminary objection of the Claimant is hereby upheld and the suit of the Claimant accordingly dismissed. I make no order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge