(2021) Legalpedia (SC) 11894
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thursday, January 14, 2021
Suite Number: SC.285/2008
KUDIRAT MOTONMORI KEKERE-EKUN
CHIMA CENTUS NWEZE
AMINA ADAMU AUGIE
UWANI MUSA ABBA AJI
MR. MICHAEL IDACHABA || THE UNIVERSITY OF AGRICULTURE, MAKURDI
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellants were all senior staff and employees of the Respondent Institution, whose appointments were terminated at different dates from 1995 to 1999 because inter alia they were sent on various training overseas by the 1st Respondent and after the completion of their courses and allowed time, refused to return to the 1st Respondent. The Appellants through their Originating Summons sought before the Federal High Court, Abuja, a declaration that there is no provision in Decree No. 48 of 1992 as amended by Decree No. 11 of 1993, that permits or allows the 1st, 2nd and 3rd Defendants, their servants or agents to perform or do all or any of the functions/duties of the 4th defendant specified in Section 3(2), 6, 10, 11, 15 and 16 or any other Section of Decree No. 48 of 1992, in the absence of the 4th Defendant being duty constituted and or without the approval/delegation of the 4th Defendant; and consequently every action or decision taken by the 1st, 2nd and 3rd Defendants which ought not to have been taken by the 4th Defendant and which were taken by the 1st, 2nd and 3rd Defendants in the absence of the 4th Defendant or without the approval or sanction of the 4th Defendant between January 1997 – 11th July 2000 A.D; were ultra vires, null and void and of no effect whatsoever among other reliefs. Before the Originating Summons was heard, the 1st-4th Respondents filed a motion on notice for the dismissal of the suit on the grounds that the suit of the Appellants was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act, Cap. 379, LFN, 1990, and that the Court lacks jurisdiction to entertain the claims of the Appellants herein by virtue of the provisions of Section 3(3) of the Public Officers Protection Act, Cap.379, LFN, 1990. The trial Court in its ruling held that the suit of the Appellants was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act. On appeal by the Appellants to the lower Court, their case was equally dismissed, hence the appeal to this Honourable Court.
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ISSUES FOR DETERMINATION
Whether the action of the Appellants was caught by Section 2 (a) of the Public Officers Protection Act and whether the lower Court was not wrong to raise the issue of the jurisdiction of the trial Federal High Court suo motu.
STATUTE OF LIMITATION – DETERMINATION OF WHETHER AN ACTION IS CAUGHT BY THE STATUTE OF LIMITATION OR NOT
“It is the law that the process filed by the Plaintiffs should be the mirror to look into in determining whether an action is caught by the statute of limitation or not. All that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Per Edozie, JSC in Aremo II V. Adekanye & Ors (2004) LPELR-544(SC) (P. 18, PARAS. B-D).
ACTION – YARDSTICKS IN DETERMINING WHETHER AN ACTION IS STATUTE-BARRED
“The yardsticks to determine whether an action is statute-barred are: (a) The date when the cause of action accrued. (b) The date of commencement of the suit as indicated in the writ of summons. (c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues. See Per Galadima, JSC in INEC V. Ogbadibo Local Govt & Ors (2015) LPELR-24839(SC) (PP. 32- 33, PARA. A).
SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT – IMPORT OF SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT
Section 2(a) of the Public Officers Protection Act states that: 2. 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 following provisions shall have effect – (a) Limitation of time – 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 case of a continuance of damage or injury, within three months next after, the ceasing thereof – Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison… –
LIMITATION OF ACTION – POSITION OF THE LAW ON THE PERIOD FOR INSTITUTING AN ACTION
“In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has waived or abandoned his right. See Per Galadima, JSC in INEC V. Ogbadibo Local Govt & Ors (2015) LPELR-24839(SC) (PP. 30- 31, PARA. D). It is therefore trite that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period.
DELEGATED AUTHORITY – WHETHER THE DELEGATION OF AUTHORITY IS SYNONYMOUS WITH DIVESTMENT OF SAME
“It is of course without question that the individual letters of Termination of Appointment of all the Appellants was signed by one M. T. ATSAKA, FOR: AG. REGISTRAR. This was pursuant to the delegated and devolved authority given and passed down from the then Head of State and Commander in Chief of the Armed Forces, Gen. Abdulsalami Abubakar through the SGF, down to the Acting Registrar. It is apparent that M. T. ATSAKA acted for and on behalf of the acting Registrar. He who acts by another, acts himself. See Nwosu V. Imo State Environmental Protection Agency (1990) 2 NWLR (PT.135) 688. The fact that M.T. ATSAKA acted for the Acting Registrar did not imply usurpation, denunciation or renunciation of the power of the Acting Registrar. An authority which delegates its power does not divest itself of the power. Delegation means that powers are committed to another person or body which is as a rule always subject to resumption by the power delegating. See Per Muhammadu Lawal Uwais JSC in J. O. Anakwenze V. Louis Aneke & Ors (1985) LPELR-481(SC) (PP. 15-16, PARAS. P-B). Workings of any Government will come to a halt if there is no delegation of the exercise of power.
DELEGATED AUTHORITY – WHETHER A DERIVED POWER CAN BE GREATER THAN THAT AVAILABLE FROM WHICH IT IS DERIVED
“The implementation of ministry or government decisions must be delegated for the smooth working of government. However, a power or authority so given cannot be greater than that from which it is derived. A derived power can never be greater than that available at its source, hence the maxim – DERIVATIVA PROTESTAS NON POTEST ESSE MAJOR PRIMITIVA. These are done for general administrative purposes where discretion can be exercised.
LIMITATION OF ACTION – WHETHER A PERSON WHO CLAIMS THE PROTECTION OF SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT NEEDS TO ESTABLISH A DEFENCE OF QUALIFIED PRIVILEGE IN ORDER TO SUCCEED IN HIS PLEA THAT THE ACTION IS STATUTE-BARRED
“Besides, Per AYOOLA, JSC in Offoboche V. Ogoja LG & Anor (2001) LPELR-2265(SC) (PP. 18-19, PARA. E) opined that a person who claims the protection of Section 2(a) of the Law does not need to establish a defence of qualified privilege in order to succeed in his plea that the action is statute-barred.
COURT – CIRCUMSTANCES WHEN IT WILL BE UNECCESSARY TO GIVE THE PARTIES A HEARING WHEN A JUDGE RAISES AN ISSUE ON HIS OWN MOTION OR SUO MOTU
“Furthermore, a judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. A Court is not a Zombie or robot to go along with the cliche “garbage in, garbage out”. The Court exists to determine and examine with due diligence and sense, matters before it in its pursuit of justice. Therefore, where it would enthrone injustice, the Court will not close its eyes to any irregularity however shown on the record without suo motu dealing with it. See Per Peter-Odili, JSC in Ogar & Ors V. Igbe & Ors (2019) LPELR-48998(SC) (PP. 42-44, PARAS. C-A). Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per Olabode Rhodes-Vivour, JSC in Omokuwajo V. FRN (2013) LPELR-20184(SC) (PP. 37-38, PARAS. F-D), when he held that: The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident.
LIMITATION LAW – EFFECT OF A LIMITATION LAW
“The effect of a limitation law is that it removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action, which he cannot enforce. See Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1; Hassan vs Aliyu & Ors (2010) 17 NWLR (Pt. 1223) 547; C.B.N. Vs. Okojie (2015) 14 NWLR (Pt. 1479) 231.
LIMITATION LAWS – OVERRIDING PURPOSE OF LIMITATION LAWS
“The overriding purpose of limitation laws is expressed in the Latin phrase – interest rei publicae ut sit finis litium, that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of a particular case. Another factor is the desirability of preventing Plaintiffs from prosecuting stale demands on one hand, and protecting Defendants from disturbance after a long lapse of time when they have grown accustomed to the position or lost the evidence to defend it, on the other hand – see Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105, Eboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649”.
STATUTES REFERRED TO
Public Officers (Special Provisions) Decree, 1984, No. 17 (Instrument for Dismissal, Removal and Retirement of Certain Officers (Special Provisions) Decree, 1984|Public Officers Protection Act, Cap. 379 LFN 1990|
J. S. OKUTEPA, SAN, with him, OJOMU APEH, ESQ., ONYINYE F. JEDIDIAH, ESQ., AYOBAMI K. OKE, ESQ. and PETER UMAH, ESQ.For Appellant(s)|JONATHAN AKEME, ESQ. – for 1st-4th Respondents.|MOHAMMED SAIDU DIRI, ESQ., with him, U. Y. ATIMANU, ESQ., A. R. TAHIR, ESQ. and V. A. JOSHUA, ESQ. – for 5th Respondent|
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