IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

 

BEFORE HIS LORDSHIP: HON. JUSTICE K.D. DAMULAK

DATED THIS 23RD DAY OF APRIL, 2026

SUIT NO: NICN/IL/12/2023

 

BETWEEN

DR.ANTHONY OLAYEMI AJIBOYE        ………….             CLAIMANT

 

AND

FEDERAL CIVIL SERVICE COMMISSION          ……… DEFENDANT 

 

REPRESENTATION

I.K. Iyanda for the claimant

No appearance for defendant

        JUDGMENT

INTRODUCTION

  1. The claimant took out a complaint against the Federal Civil Service Commission on 28/9/2023. The claimant prays for 
    1. A declaration that the dismissal of the claimant from service was illegal and unconstitutional and thus constituted a continuous breach of the claimants right of fair hearing
    2. An order of reinstatement of the claimant back to the service of the Government of the Federation with accrued salaries, promotions and emoluments from the purported dismissal,22/3/2012 until the final determination of this suit.
    3. And such other orders as the court may deem fit.
  2. The defendant was served but did not file any process so the claimant was heard on 14/5/2024 and 10/6/2024 and the case was adjourned to 2/7/2024 for judgment.
  3. By a motion of 28/6/2024, the defendant filed a memorandum of appearance and a statement of defence.
  4. The defendant also filed a notice of preliminary objection on 15/7/2024 and the claimant filed a reply on point of law on 24/7/2024
  5. By a motion of 15/7/2024, the defendant sought to join Federal Ministry of Health and State House Medical Centre, which motion was heard and refused in a ruling of 13/3/2025.
  6. From that date, neither the defendant nor the claimant appeared in court except on 30/4/2025.
  7. The defendant and counsel were absent from court on 4/6/2025 even though counsel was in court on the previous date of 30/4/2025.
  8. Defendant and counsel were absent on 28/10/2025, 13/1/2026 and 19/2/2026 in spite of proof of service on counsel in the courts file. Accordingly, the case of the defendant was foreclosed on 19/2/2026, the preliminary objection deemed argued and the case adjourned to 23/4/2026 for judgment.

CASE OF THE CLAIMANT

  1. It is the case of the claimant in a 20 paragraph witness deposition that he is a senior medical officer (SGL 13) in the service of the Government of the Federation and physician in the state house until his dismissal by a letter of 12/3/2012 with effect from 2/11/2007 on allegation of abscondment from duty after completion of three years part 1 residency program at the Lagos state University Teaching Hospital.
  2. That his program was supposed to run for six years. That while in the midstream of his senior residency, he was recalled by a letter of 11/3/2009 and he reported to duty by a letter of 1/6/2009.
  3. That on 2/7/2009, 7/7/2009 and 28/8/2009, he wrote letters of appeal and withdrawal of service to the State House Medical Centre to let him proceed to complete the senior Residency program but all to no avail and that left him with no other option than to go and complete his residency program.

 

COURT’S DECISION

A. Preliminary objection

  1. The defendant filed a notice of preliminary objection on 15/7/2024 and the claimant filed a reply on point of law on 24/7/2024. 
  2. The notice of preliminary objection is on grounds listed as (a) to (k) as follows
    1. This court lack requisite jurisdiction to hear and determine this matter as no reasonable cause of action has been disclosed.
    2. The claimant has admitted his guilt with the documents forwarded to the court.
    3. The claimant also admitted absenting himself from duty from August, 2009.
    4. The claimant was dismissed by a letter of 22/3/2012 with effect from 2/11/2007.
    5. The letter written by NMA also admitted that the claimant was collecting salary from two government institutions
    6. The claimant is filing this suit after 16 years or 11 years.
    7. The claimant also admitted applying for voluntary withdrawal of service with a letter dated 22/7/2029.
    8. The letters of plea to continue his residency program have all testified that he admitted his guilt.
    9. That the claimant cannot approbate and reprobate with the letters of withdrawal of service dated 22/7/2009 and 28/8/2009.
    10. The claimant also admitted the factors that led to his dismissal in his letter dated 4/1/2012.
    11. By virtue of section 2(a) of the public officers protection Act, the matter is statute barred after three months following the occurrence of the act.
  3.  There is no affidavit in support of the objection but there is a written address in which the learned counsel argued, among other things, that the suit is statute barred by reason of section 2(a) of the Public Officers Protection Act (hereinafter referred to as “POPA”). That time begins to run from the date the cause of action accrues which is the date of the letter of dismissal dated 22/3//2012 and this case was filed on 28/9/2023, a period of more than 11 years 
  4. From pages 10 to 14 of the written address in support, leaned counsel gave a brief term paper on limitation of action, when does an action becomes statute barred, how to determine the period of limitation, who is a public officer, the reason for the limitation law, citing authorities, but did not come down on the fact that this is an employment matter and what the courts have said about it.
  5. In his address on point of law, learned Iyanda submitted that the claimant’s suit constitute a special exception to section 2(a) of the Public officers protection Act. That the claimant gave particulars of illegality, breach of fair hearing, breach of Public Service Rules, thus the defendant cannot be relying on POPA where it has acted recklessly. He relied on the case of OYEDEPO TUNJI TAJUDEEN V FIRS (2020)12 NWLR (PT.1739) 459 at 466.

Resolution

  1.  The grounds for objection listed as A, B, C, E, G, H, I and J  are not grounds for a preliminary objection but they can constitute a defence. Grounds D, F and K are properly grounds for an objection that a suit is statute barred.
  2. The defence put up by the claimant counsel does not hold water. I have read the entire statement of facts and there is nothing in the pleadings that makes the case an exception to the applicability of the Public Officers Protection Act on the ground of illegality, breach of fair hearing or breach of public service Rules.
  3. What both parties miss is the fact that this is a case of a contract of service or employment contract and the cause of action is dismissal of employment. From the statement of facts.  I agree with the defendant counsel that the cause of action arose on 12/3/2012 when the claimant was issued a dismissal letter.
  4. Now, the almighty POPA has never applied without exceptions, there are exceptions. The law does not apply in the following cases;
  5. A claim for recovery of land.
  6. A claim for work and labour done.
  7. Where the public officer acted outside the colour and tenor of his duties.
  8. Where the wrong complained of is a continuing wrong.
  9. Where an employer’s duty to the employee is in issue.

See 1.  CAPT.  OGHIDE & 0RS V SHONA JASON  NIG. LTD (2009)16 N.L.L.R (PART 43) P 73

  1. FANIYI V AGF  (2009) 14 N.L.L.R  PART 39 P.387 AT 398
  2. IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1
  3. NWANKWERE V. ADEWUNMI (1967) NMLR 45 AT 49; 
  4. ATIYAYE V. PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT, BORNO STATE (1990) 1 NWLR (PT. 129) 728;
  1. AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS v. ANIEKAN WILSON AKPAN     (2013) LPELR-22105(CA)
  1. The list of exceptions used to include a claim based on breach of a contract of employment but this particular exception has a history and a story. In 2019, the story started. In N.R.M.AF.C V AJIBOLA JOHNSON (2019)2 NWLR (PART.1656) P.247 AT 270. the Supreme court held;

There is no doubt, a careful reading of the respondent’s claim will show clearly that it is on contract of service. It is now settled law that section 2 of public officers protection law does not apply to cases of contract.

 

  1. However, in 2021, in MICHEAL IDACHABA & ORS V UNIVERSITY OF AGRICULTURE, MAKURDI & 4 ORS (2021) LPELR- 53081 (SC), the apex court held that the Public Officers Protection Act/law applies to a contract of service. That informed a change of the position in this court, not without hitches.
  2. Again, on 2nd December, 2022, the Apex court ruled to the contrary in the case of RECTOR, KWARA POLY V ADEFILA (2024) 9 NWLR (PART 1944) P 529. In that case, the claimants /respondents had challenged their retirement at the age of 60 years instead of 65 years as agreed, the Apex court, at page 544 paragraphs F-H held;

It has been long settled by this court that the public officers protection law the appellants rest their challenge to the competence of this suit does not apply to breach of contract cases..

In Rahamantiya united Nigeria limited v minister of Federal Capital Territory (2021) LPELR-55633 (SC), (2021)17 NWLR (PART 1808) p.481, this court pointedly restated the principle that the public officers protection law is not intended by the legislators to apply to contracts. Accordingly, since the respondents‘ instant action is grounded in contract, the defence the appellants seek to raise remain legally unavailing.

  1. The matter does not stop here. On the 17th day of January, 2025, the Supreme Court yet again in the  case of DR.MOSES U. ANOLAM V FUTO & ORS (2025) LPELR – 80027(SC), ADAH ,JSC, after citing Mr. Michael Idachaba & Ors. v. The University of Agriculture, Makurdi (2021) LPELR-53081 (SC), concluded thus;

 

"The Limitation Statute called into question in this matter is the Public Officers' Protection Act. By Section 2(A) of this Act, it is provided that there is limitation of three months for commencement of action against any public officer who is protected by the Act.... This decision makes it settled that the Public Officers' Protection Act is applicable to issues of employment with statutory flavour such as the employment of the appellant in the instant case."

  1. Similarly, in OKORONWO V INEC (2025) 8 NWLR (PT.1991)P131at156, a decision delivered on 7/2/2025, the Supreme court held;

Fundamentally, section 2(a) of the public officers protection Act (supra) applies to contract of services.

 

  1. Thus it is clear that the current position of the law as per ANOLAM V FUTO and OKORONWO V INEC supra, is that the provision of the Public Officers Protection Act is applicable to issues of employments with statutory flavor.
  1. It is clear from the above that the position of the Apex Court had not been static on the issue but it oscillates. Now, the position of the law is that the law applicable to a cause of action is the state of the law at the time the cause of action arose and the action was filed and a change of law after the cause of action has arisen will not affect accrued rights and obligations. See AKIBU V. ODUNTAN (2000) 13 NWLR (PT. 685) 446 P. 465, PARA. A where the court held;

The law applicable to an action is the law in existence at the time the cause of action arose and not the law existing when the jurisdiction of the court is invoked.

  1. In  ROSSEK V. A.C.B. LTD. (1993) 8 NWLR (PT. 312) 382 P.474, PARAS. H-A the court also held as follows

It is trite law that the substantive law existing at the time a cause of action arises governs the determination of the action and the rights and obligations of parties must be determined in accordance with the substantive law when the cause of action arose. Thus, a change of law after the cause of action has arisen will not affect accrued rights and obligations unless the change is made retrospective. 

 

See also MUHAMMED V. MIL. ADMIN. PLATEAU STATE (2001) 16 NWLR (PT. 740) PP. 549-550, PARAS. F-A

 

  1. This suit was filed on 28/9/2023. From the above history of the legal position on applicability of POPA to claims based on breach of a contract of employment, the position as at 2/12/2022 to 16/1 2025 was the position in RECTOR, KWARA POLY V ADEFILA (2024) 9 NWLR (PART 1944) P 529 and this suit was filed within that period.
  2. Accordingly, based on AKIBU V. ODUNTAN, ROSSEK V. A.C.B. LTD. and MUHAMMED V. MIL. ADMIN. PLATEAU STATE supra, the present suit, having been filed on 28/9/2023, when the then existing decision of the Supreme Court then was that the Public Officers Protection Act does not apply to contracts of employment, even though that position later changed, this suit is not statute barred and the objection is hereby dismissed.

B .Merits of the case

  1. The court hereby formulates an issue for determination as whether the claimant has made out a case to warrant judgment in his favour.
  2. The case is without defence and so there is evidence on only one side and the law is that minimum evidence is required but it must be credible evidence. See

FIRST BANK OF NIGERIA PLC v. MR. EFOBI EFFIONG BAM

(2010) LPELR-4160(CA) where the court held.

 

‘’It is trite law as stated by the learned trial judge that where evidence of a party remains unchallenged or not contradicted, minimum evidence will suffice.

  1.  




 And  IGBI V. STATE (1998) 11 NWLR (PT.574)  where the court held;


 

‘’ where the trial Judge finds the evidence of a witness is unchallenged or uncontradicted, and where by its very nature the evidence is not incredible, the trial court has no option but to accept it and act on it.’’

 

  1. The defendant has raised a ground of defence in its Notice of Preliminary Objection to the effect that the claimant also admitted applying for voluntary withdrawal of service with a letter dated 22/7/2009. I find this to be true by reason of paragraph 9 of the statement of facts and paragraph 10 of the witness deposition as well as Appendix K of exhibit AOA 4 that the claimant wrote a letter withdrawing his service to the State House Medical Center on 22/7/2009 with effect from 1/8/2009 and a reminder on 28/8/2009 in appendix L to the same exhibit AOA 4.
  2. The law on resignation is that resignation of an employee need not be formally accepted before it takes effect and resignation takes effect or becomes effective when resignation notice is given and the employer has no discretion to refuse to accept same. This means that once a resignation letter is served, the employee automatically stands resigned from the date of receipt of the letter of resignation.

 

 

  1. In FBN MERCHANT BANK LTD V. OWOTEMU (2023) LPELR-60451(CA) the court held;

"It is abecedarian law that the resignation of an employee need not be formally accepted before it takes effect. The resignation letter becomes effective from the date the letter is received by the employer. BENSON vs. ONITIRI (1960) SCNLR 177 at 189-190, SUNDAY vs. OLUGBENGA (2008) LPELR (4995) 1 at 7-9 and YESUFU vs. GOV OF EDO STATE (2001) LPELR (3526) 1 at 24. 

34 In SAGAMU MICROFINANCE BANK PLC V. LAWAL (2022) LPELR-58767(CA) the court held;

"Generally, resignation takes effect or becomes effective when resignation notice is given, see SUNDAY V. OLUGBENGA & ORS (2008) LPELR - 4995 (CA) which held that resignation takes effect from the date the notice was given and the Appellant has no discretion to refuse to accept same."

See also IBRAHIM vs. ABDALLAH (2019) LPELR- 48984 (SC) and SUNDAY V. OLUGBENGA & ORS (2008) LPELR-4995(CA)

  1. The claimant accordingly resigned his appointment the moment he submitted his resignation letter, Appendix K of exhibit AOA 4, which took effect from 1/8/2009 and so legally, the claimant rightly left to complete his residency.
  2. The implication is that the claimant cannot be dismissed by the defendant on 22/3/2012 as the claimant was no longer a staff of the defendant. An employer has no power to dismiss or terminate the employment of an employee after retirement or resignation. See UNITY BANK PLC v. BAKO N. CHORI (2021) LPELR-55720(CA) where the court held;

In this case, the Respondent had earlier been retired on 23rd July, 2012 before the purported dismissal on 1st August 2012.

Since the two cannot exist side by side nor follow each other, the first in time which is the retirement prevails having ended the contract of employment already. An employer cannot legally dismiss an employee who she had earlier retired since after his retirement he ceases to be his employee.

However, whereby a letter of termination, the employment or service of the employee had been brought to an end, he cannot thereafter be dismissed from an employment that had ceased to exist. His dismissal coming after the termination of his appointment is a futile endeavor.

  1. In JOMBO V P.E.F.M.B (2005) 14 NWLR (PT) 945 P.443 at 461 the court held;

It is elementary that employee, in the instant case the appellant, cannot be dismissed from an employment that has ceased to exist. The appellant’s dismissal coming after the termination of his appointment was a futile exercise.

 

  1. Similarly, the claimant, who had already resigned his appointment, cannot double speak by praying for reinstatement. Relief 2 accordingly fails. Just as he cannot be dismissed after the relationship has ceased to exist, so also he cannot be reinstated after the relationship has ceased by reason of his own doing.
  2. This must be so because reinstatement is a consequence of unlawful dismissal or termination of a statutorily protected employment. See ODEYEMI V. NITEL PLC (2009) LPELR-4982(CA)  (PP. 34 PARAS. B) where the court held;

 

"Where the Court declares a dismissal letter null and void and ineffectual the appropriate order to make in such circumstances is reinstatement of the public officer particularly if the contract has statutory flavour. 

And OLANIYAN & ORS V. UNILAG & ANOR (1985) LPELR-2565(SC)  (PP. 165 PARAS. B) where the court held;

"I do not take the word reinstatement to be a term of art. - See Hodge v. Ulter-Electric Ltd. (1943) I KB. 462, 466. Its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period. 

  1. In conclusion, relief 1 of the claim succeeds. The court accordingly hereby declares as follows;

A DECLARATION that the dismissal of the claimant from service was done after resignation and thus null and void

  1. This is the judgment of the court and it is entered accordingly.

 

.................................................................

HONOURABLE JUSTICE K.D.DAMULAK

                                             PRESIDING JUDGE