IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: THURSDAY JUNE 13, 2024
SUIT NO:
NICN/EN/15/2021
BETWEEN:
DR. (MRS)
UCHECHUKWUMA V. EZE………………….CLAIMANT
AND
1.
FEDERAL COLLEGE OF
EDUCATION, EHA-AMUFU
AMUFU
2.
DR. (MRS) PAULINE N. IKWUEGBU
(Provost, Federal
College of Education, Eha-Amufu)
DEFENDANTS
3.
THE COLLEGE OF
EDUCATION MANAGEMENT
(Federal College of
Education, Eha-Amufu)
4.
THE GOVERNING COUNCIL
(Federal College of
Education, Eha-Amufu)
APPEARANCES:
1.
LEARNED IKE OZOR –
FOR THE CLAIMANT.
2.
LEARNED P.A. BELLO –
FOR THE DEFENDANTS.
JUDGMENT
INTRODUCTION
COMPLAINT commenced this suit July 14, 2021. The claimant
filed Amended Statement of Facts [ASF]
9th December 2021 wherein the underlisted reliefs were claimed:
i.
AN ORDER that the decision of the defendants to
dismiss the claimant from service of the 1st defendant during the
pendency of this action duly served on the defendants and seeking to restrain
the defendants from carrying out such dismissal action amounts to affront to
the coercive powers of this court and therefore unlawful and contemptuous.
ii.
AN ORDER that the reason relied on by the
defendants to dismiss the claimant from the service of the 1st
defendant is not plausible.
iii.
AN ORDER of court that the dismissal of the
claimant by the defendants from the employment of the 1st defendant
as a reply by the defendants to the claimant’s application for voluntary
withdrawal from service of the 1st defendant and subsequent request
for transfer of service from the 1st defendant to her new employer,
Federal Polytechnic, Oil and Gas Bonny, Rivers State, is inconsistent with the
provisions of the public service rules [sic] and amounts to act of malice
lacking legal justification, null and void.
iv.
AN ORDER of court that the dismissal of the
claimant from the 1st defendant’s employ by the defendants under the
circumstances existing between the claimant and the defendants amounts [sic] to
act of malice, bad faith, unreasonable, unwarranted, irregular and of no
effect.
v.
AN ORDER of court setting aside the dismissal
letter of the claimant from the defendants dated 13th day of
September 2021.
vi.
AN ORDER of court directing the defendants to
approve the claimant’s request for transfer of service to her current employer,
Federal Polytechnic, Oil and Gas Bonny, Rivers, having refunded her three
months salaries in lieu of service as provided under the civil service rule for
a civil servant withdrawing from service.
vii.
AN ORDER of injunction restraining the
defendants, their agents and subordinates from further dismissing the claimant
from service of the 1st defendant.
viii.
AN ORDER of Ten Million Naira aggravated damages
against the defendants for inconveniences, stress, anxiety and trauma caused
the claimant.
OR
In the alternative to relief IV, if in the
event, the defendants succeed in getting Federal Polytechnic, Oil and Gas
Bonny, Rivers State to relieve the claimant of her duty;
An Order that the defendants reinstate the
claimant to her former position with the 1st defendant and place her
on the salary grade level with her counterparts serving in the Federal Colleges
of Education.
The
defendants reacted to the above by Amended
Statement of Defence [ASD] filed 25th May 2022.
The claimant filed Reply to the
Defendants’ Statement of Defence [RDSD]. Thus, issues were fully
joined. My next duty is summary of the stories contained in the pleadings from
both sides.
SUMMARY OF THE PARTIES’ STORIES
A: Claimant’s Story
The claimant
pleaded that he was a former employee of the 1st defendant and that;
she withdrew her services as Director of Medical Services February 16, 2021.
The claimant pleaded that her problem began with the 2nd and 3rd
defendants in 2020 and made her service unpalatable, leading to the institution
of several court actions, which made her to withdraw her services with effect
from March 1, 2021. She pleaded that the defendants replied to the application
for withdrawal of service that she would be communicated later. She pleaded she
requested for the college account to enable her pay three month salaries in
lieu of notice and when the defendants did not reply, she issued a draft to
that effect in favour of the 1st defendant on March 2, 2021 and
thereafter applied for transfer of service March 4, 2021 but that the
defendants have been plotting to dismiss her to frustrate her new employment. She
pleaded that subsequently; the defendants maliciously served her with a notice
of dismissal on 13th September 2021 contrary to Public Service Rules [PSR].
The claimant
pleaded that she was not afforded opportunity to defend herself on the petition
she wrote against the defendants and for which she was dismissed. She pleaded
that her dismissal did not follow due process and that she was dismissed after
she had filed and served this action on the defendants praying that the
defendants be restrained from dismissing her and that this was an affront to
the Court. She pleaded that she was punished for insisting on due process on
disbursement of public funds and for daring to institute action against the
defendants. She pleaded too that it would be in the interest of justice to set
aside the dismissal. She pleaded that the defendants aggravated the malice
against her by leveraging on the dismissal letter to press her new employer to
also dismiss her and, refused to approve her transfer of service. The claimant
ended the story by praying the Court for the reliefs earlier set out above.
That ends the claimant’s story. I move to the defendants’ counter-story.
B: The Defendants’ Counter-Story
The
defendants counterpleaded against paras 1 & 2 of the ASF that the claimant’s application for withdrawal had not been
processed because, the claimant had several disciplinary procedures against her
and that the claimant’s various suits frustrated the processing of her
application for withdrawal. They counterpleaded further that the claimant did
not handover her office but absconded while she has not paid the three months
salaries in lieu of notice, as issuance of bank draft is unknown to the
defendants. They pleaded that the correct way of payment is by way of remittal through
only the TSA. They counterpleaded the
rejection of the draft and that it was sent to her office. They also
counterpleaded that the application for transfer of service was not processed
because the claimant had several pending disciplinary actions and court cases.
They
counterpleaded that the claimant absconded in December 2020 to the new
employment without first resigning her appointment while still holding on to
the defendants’ properties. They counterpleaded that there was no plot to
dismiss the claimant and that the claimant was given opportunities to defend
herself which she spurned and that, her dismissal had nothing to do with the
application for withdrawal. The defendant pleaded that the action is statute
barred, being outside three months by virtue of the Public Officers [Protection] Act [POPA]. They
counterpleaded that all amendment of pleadings must fall within the limitation
period. They counterpleaded that the claimant raised the same issues in her
petition and the cases filed in court and that the various organ of the
defendants deliberated on the petition and decided that the claimant be
dismissed. They thereafter counterpleaded dismissal of the suit and signed off
the ASD. I move to the RASD.
C: Reply
The claimant
replied that all the queries in issue were issued in contravention of the
Court’s order, an instance of abuse of office. The claimant replied that the
defendants burnt the labour ward as part of vengeance on her. She replied that
she was not on duty when the fire incident took place and that, when she learnt
of it, she called on phone to people who put out the fire and thereafter
reported the incident to the police March 1, 2021 but the Deputy Provost asked
the police to leave because the fire incident was the internal business of the
1st defendant. She replied that she sent the report of the fire
incident to the 2nd defendant too on March 1, 2021 and that the
defendants thereafter set a committee to investigate the fire incident, which
happened on Sunday, in her absence and when she was not on duty too. She
replied too that she was not the one who posted the security details on duty
the fateful date but the 2nd defendant. She replied that the rumour
was rife that the fire incident was a smokescreen to refuse her application for
withdrawal.
She replied
that it was for this reason she filed a suit against the investigative
committee in which she prayed that the investigation be turned over to the
police. She replied that, in her application for withdrawal, she sought
directive on whom to handover, her already prepared handover note and the
defendants failed to reply. She replied too that, it was not the law that she
must first resign before taking up the new appointment. She replied that her
appointment with the new employer commenced on the date she resumed and not on
the date on the appointment letter and that, she earned her last salary with
the defendants December 2020 while she started earning salary in her new employment
January 2021. She replied that she did not earn double salaries. The claimant
replied that the defendants did a further letter to her new employer, accusing her
new employer of failing to dismiss her on their previous letter consequent on
which she was issued a query by her new employer on 14th June 2021
but, which it recalled with another letter the same day, asking her for
explanation. She replied that by these, her fate has become precarious, having
been dismissed by the defendants, who at the same time, is mounting pressure on
her new employer to dismiss her too.
The claimant
replied that the issue of her dismissal is not statute barred because, she received
the letter November 2021 and filed a motion 9th December 2021 to
incorporate it, which the Court granted May 11, 2021 and that; in any case, the
issue of dismissal had been on ground before the issuance of the letter of
dismissal and that, as such, the issuance of the dismissal letter was abuse of
process, which would prevent the defendants from taking advantage of any
limitation law. The claimant replied that she was purportedly dismissed at a
time when she was no longer staff of the defendants. That ends the RASD. I move to summary of the
proceedings and evidence.
SUMMARY OF PROCEEDINGS AND EVIDENCE
The case came
up before me for the first time 3rd March 2022. On this date the
defendants’ motion to regularise their defence processes was granted unopposed.
On this same date, the claimant also moved the motion to amend her pleadings. Considered
ruling was delivered on 11th May 2022 and it was granted. Thereafter,
the mater was adjourned. The case was opened 23rd March 2023 with
the claimant testifying as CW1. She adopted her Written Statements on Oath [WSOs] made 9/12/2021 and 30/06/2022.
Exhibits C1-C5 were admitted without objection. Thereafter, the matter was adjourned
at the claimant’s instance. It came up
for continuation on 20th April 2023 and Exhibits C6-C18 were
admitted without objection. Thereafter, the claimant was submitted for Cross-Examination [XX]. Under XX, CW1 admitted
interacting with members of the management of the 1st defendant at
the end of the 1st quarter of 2020 but through memos and that, she
took up new appointment with the Federal Polytechnic of Oil and Gas. She also
admitted she started collecting salaries from the new employment January 2021.
On the
question that the claimant took up her new appointment and did not tell the 1st
defendant in writing throughout January and February 2021 when she had started earning
salaries there, she said she went to the Provost’s office several times without
meeting her and that; the few times the Provost was around, she did not allow
her to see her but that she withdrew her services in February 2021 in writing
and that; the defendants said they would process and revert to her that she had
unfettered right to withdraw her appointment. She said she was not given an
account to pay in lieu of notice when she requested, which was the reason she
paid in draft and that; her account had been debited accordingly and that, the
proof has been tendered [Exhibit C6]. She said her issue with the defendants is
that they requested her orally to transfer the money in TISHIP Account and she
insisted on written directive. She said because the usual place where the
Council meetings hold was inside the College, she was terrified of the one
fixed for Abuja and did not go but that, she did not write to complain against
the venue.
She said she wrote
to say she could not transfer the money to another account because the case was
in Court and would report to the Court for its directives and the defendants
did not reply but that she did not plead this but could tender it if allowed. She
said she was not on duty that date a consultant slumped because it was her off
day but that, another doctor [Dr Ugwu] was on duty but that; the same day Dr
Ugwu had a hitch while on his way to the hospital but that; there were nurses
on duty who attended to the emergency and that the patient got well and went
back to do her duty. To the question that she refused to attend the committee’s
meeting on the investigation of the fire incident at the medical centre, she
said this happened on a Sunday when she was not on duty and that; when she heard
this, she called the people on duty and they put off the fire and the next day,
she reported to the police, knowing the circumstances surrounding her and that
the committee was set up to indict her and that; she did not answer because the
case was already before the Court because she had prayed the Court to order
them to form a committee that is not biased, which must include experts in fire
service and the police.
On the question
that the attitude she has displayed so far before the Court and her filing of
several cases against the defendants, she answered that she had worked for 16
years without query and have received several awards and commendations for
excellent performance and that; her problem began because she refused to
release public funds without following proper procedure and, that led to her
filing actions to protect her job. She said she could not attend the meeting
scheduled at a hotel to settle the case out of court because; she fell sick
that day. She said all her efforts to resolve the matter amicably were rebuffed
by the Provost, the Chairman and the Bursar. The XX was brought to an end without re-examination while the case was thereafter
adjourned.
The matter
came up next 31st May 2023 and the defence opened with Pascal Onah,
the Deputy Provost [DP],
who testified as DW1. He adopted his WSO
made 25th May 2022 and tendered Exhibits D1-D1(a), D2-D4 without
objection and was turned over for XX.
He said what brought him to the Court is the inability of the claimant to obey
the rules of the school. The DW1 said no disciplinary action was taken against
the claimant but she was just asked questions in form of queries, which is
normal in the civil service. To the question that the defendants went ahead to
dismiss the claimant September 13, 2021 after the receipt of her application
for withdrawal dated 16th February 2021, the DW1 said the claimant’s
status was that of an absconder because, she did not hand over and did not pay
three-month salaries in lieu of notice. To the question that the claimant made
written request for the account into which to pay the money in lieu of notice,
the DW1 said, as at December 2020, the claimant had absconded but that, in
spite of this, the bursar properly directed her on how to pay the money in lieu
of notice. To the question that the reply on how to pay the money was not in
writing, DW1 said the claimant never complained about that. But he belatedly
said, he knew the bursar must have written the letter.
DW1 said the
cheque was not the proper mode to pay the money but payment into the TSA through remittal and that; the bank
draft was sent back to the claimant in the medical centre and that, the
dispatch book would proof the date. DW1 said until the requirements of
withdrawal from service are met, the claimant remained a staff. To the question
that they could have reached the claimant in the address, email and telephone
number she gave in Exhibit C4, DW1 said staff of the college were only reached
through their departmental address. DW1 said the Exhibit C4 was dated March 02,
2021 whereas, the money in lieu of notice was supposed to be for November
2020-January 2021 because, the money in lieu of notice was supposed to be paid
in advance and not in arrears. To the question whether the draft was rejected
by the single treasury account, DW1 said that it would be wrong to present it at
all, being that it was the claimant’s duty to know the right means of paying.
DW1 said they
had not cashed the draft. DW1 said the Council took the decision to dismiss the
claimant in spite of the suit, as they deemed necessary. The Court stopped the XX and, there was no
re-examination. And the defence closed their case while the case was adjourned
for adoption of Final Written Addresses
[FWAs].
The case came
up for adoption March 14, 2024 and learned P.A.
BELLO adopted the defendants’ FWA
and Reply on Points of Law [RPL].
Under adumbration the learned counsel drew attention to the fact that S. 2(a) of
the POPA barred the action and that;
the incorporation of the dismissal into the original suit was also incompatible,
apart from being also barred. The learned counsel cited the Revised Conditions of Service 2015 [Staff Handbook] and argued that, it had
no provision for payment in lieu of service in cases of withdrawal and as such,
the payment had no effect. The learned counsel argued that the claimant must
remain in service for the period of the notice and that, she also paid into the
wrong account and that, the statement tendered did not show evidence of receipt
into the defendants’ account. The learned counsel urged the Court to assess the
claimant’s conduct and conclude that she had no respect for constituted
authority.
Thereafter,
learned IKE OZOR, of counsel to the
claimant took over and adopted the claimant’s FWA. The learned counsel adumbrated that the POPA did not bar the action, which was filed within time and that;
in any case, the Court must deal with the affront to its order and cited Mbonu v. Nig Mining Corporation (2006) 13
NWLR that cause of action arose when a person’s right is threatened. The
learned counsel argued that, if the cheque was not returned the defendants
could not claim it was paid into wrong account. Thus ended the adumbration and
the case was adjourned for judgment. That being the end of the summary of the
proceedings, I move to summary of the FWAs.
SUMMARY OF THE COUNSEL’ THEORIES OF THE CASE
A: Defendants’ Counsel’ Theory
Learned P.A. BELLO franked the defendants’
theory of the case and submitted three issues for the determination:
1.
Whether the claim for wrongful dismissal is
statute barred having regard to the provisions of Section 2(a) of the Public
Officers Protection Act 2004?
2.
Whether the claimant has discharged the burden
placed on her to prove that her dismissal from service of the 1st
defendant was wrongful?
3.
Whether in any case the claimant is entitled to
any of the reliefs claimed?
In arguing issue 1, the erudite counsel referred the Court to para
11(a)-(d) of the ASD wherein it was
pleaded that the dismissal was statute bared because of failure to commence it
within three months of the dismissal. The learned counsel cited Ibrahim v. JSC, Kaduna State (1998) 14 NWLR
(Pt. 584) 1 and University of Ilorin
v. Adeniran (2007) ALL FWLR (Pt. 382) 1871 to the effect that public
officers includes public statutory bodies. The learned counsel also cited UBN Plc v. Ezikpe (2017) ALL FWLR (Pt. 915)
1286 at 1302-1303 on the particulars to examine to determine the issue. The
learned counsel defined cause of action and cited pertinent authorities and
submitted that the cause of action, which was dismissal, accrued on 13th
September 2021 when the claimant was dismissed, and cited Fubunmi v. University of Ibadan (2018) ALL FWLR (Pt. 943) 637 at
657-659 to the effect that cause of action in dismissal arose on the date
put on the dismissal letter and not when the dismissed officer received it.
The learned
counsel argued that the claimant failed to challenge the dismissal when it
happened within time but later applied to join the issue as part of the this
suit after the expiration of time and submitted that, amendment could not be
granted to incorporate an already statute barred action.
Learned
counsel argued that the original cause of action was that the defendants be
precluded from using the claimant’s application for withdrawal as a springboard
for her dismissal against which action was filed 14th July 2021 and
that this is radically different from the dismissal and that the claim for
setting aside the dismissal was filed 11th May 2022 when the
amendment was granted.
The learned
counsel argued that the application for amendment to bring in the issue of
dismissal, having been granted outside three months, the claimant is estopped
from complaints against any defect in the dismissal and cited Aturase v. Sunmola (1985) 1 NWLR (Pt. 1)
105 at 120 on the effect of sleeping over one’s rights. The learned counsel
cited Hassan v. Aliyu (2010) ALL FWLR
(Pt. 539) 1007 at 1039 to the effect that, where a public officer acts
outside the tenor of his office, the POPA
would not protect him, but argued that this authority cannot apply in this
circumstance because, the Court had to first decide the issue of jurisdiction
before it can go into the merit of the case and as such, could not look at the
merit of the issues relating to the dismissal. The learned counsel argued
further that, the claimant did not plead at any point that the defendants had
no power to dismiss her or that they exceeded their powers in dismissing her. The
learned counsel also argued that the claimant failed to frontload the
conditions of service, which regulated her employment as reflected in the
appointment letter and cited Nigeria
Cement Plc v. Obidike (2017) ALL FWLR (Pt. 909) 158 at 186 on the fatality
of not tendering the appointment letter.
The learned
counsel argued that the reference to the PSR
in para 13 of the ASF is inconsistent
with the instruments of appointment and dismissal of the claimant as they both
relied on the Conditions of Service of the
Federal Colleges of Education [Staff Handbook] and as such, the PSR did not govern the claimant’s
appointment and dismissal. The learned counsel argued too that, the dismissal
letter made no reference to application for transfer and as such, there was no
basis for the allegation of malice and bad faith.
The learned
counsel argued that, the allegation that the claimant was dismissed on the
petition she wrote without giving her opportunity to be heard, as raised in
para 16 of the ASF, apart from being
inconsistent with para 13, is not redressable, having been filed outside three
months, the Court is estopped from inquiring into the issue of fair hearing.
Rounding up on issue 1, the learned counsel submitted that, the claimant had
not given any reason why the defendants could not take advantage of the POPA and that thus, the Court lacks
jurisdiction. The learned counsel signed off by citing Akeem v. University of Ibadan (2003) 10 NWLR (Pt. 829) 584 at 600
and moved to issue 2.
Under issue 2, which deals with whether the claimant discharged the burden of proof
on wrongful dismissal, the learned counsel submitted that the conditions of
service, as pleaded, the nature of the claimant’s employment and the validity
of the withdrawal letter are the focal factors to consider. The learned counsel
argued that, the claimant having failed to plead the terms and conditions of
her employment that were breached, has failed woefully and cited Katto v. CBN (1999) 6 NWLR (Pt. 399 at 405
and other similar authorities. The learned counsel argued that the employment
in place was master and servant employment and, as such, the issue of malice
could not arise where such employment is determined and cited Isievwore v. NEPA (2002) 7 SCNJ 323 at
331-332.
The learned
counsel argued that the claimant, having pleaded that the PSR was breached in her dismissal, has to rise or fall under the PSR and must, for this reason, first
show that she was appointed by the Civil
Service Commission [CSC] and cited Okomo Oil Palm v. Iserhienhien (2001) 3 SCNJ 79 at 96 and Iderima v.
RSCSC (2005) 16 NWLR (Pt. 951) 378 at 408. The learned counsel argued that
the claimant’s appointment was directly made subject to only the Staff Handbook likewise the dismissal
made pursuant to the Staff Handbook
too and as such, the claimant case fails, not having been based on the contract
between the parties. The learned counsel submitted that failure to tender the Staff Handbook made the case worse and
that this is more so in that the claimant also failed to plead how and where
the PSR applied to her.
The learned
counsel argued too that the claimant failed to plead that her employment had
statutory flavour and cited Olaniyan v.
University of Lagos (1985) 2 NWLR (Pt. 9) 599; Akinrinade v. NEPA (2006) 2 CLR 152 at 160 and Ibama v. Shell Petroleum
(2005) 10 SCNJ 12 at 22. The learned counsel, relying on the same
authorities, submitted that the mere fact that an employment is by a statutory
body does not confer such employment with statutory flavour and submitted that
the claimant failed to plead and prove that her employment had statutory
flavour and cited Idoniboye-Obu v. NNPC
(2003) 1 SCNJ 87 at 101 to the effect that conditions of service that would
confer an employment with statutory flavour cannot be a matter of conjecture.
The learned counsel argued that as the claimant failed to prove the status of
her employment, it must be treated as without statutory flavour and cited Chukwuma v. Shell Petroleum (1993) 4 NWLR
(Pt. 289) 512 at 562.
The learned
counsel argued that, notwithstanding the letter of withdrawal and payment in
lieu of notice pleaded in para 5 of the ASF,
the claimant did not properly disengage from the 1st defendant
before she took another appointment. The learned counsel said the Staff Handbook provides for resignation
and withdrawal of service at Art 15.1&4 at p. 74 and with one-month notice
for resignation or salary in lieu thereof, and three month notice for
withdrawal without option of salary in lieu for withdrawal. The learned counsel
cited Buhari v. Yusuf (2003) 6 SCNJ 244
at 360 on the rule that the specific mention of a thing excludes those not
mentioned and submitted that the word “must” used in the case of withdrawal
must be read to mean compulsory. Learned counsel cited Chukwuma v. Shell [supra] on the mandatoriness of giving the
required notice. The learned counsel argued that even if the situation is that
the claimant could pay in lieu of notice, the notice must be contemporaneous
with the date of withdrawal, which was not the case here as the letter of
withdrawal was written 19th February 2021 while the draft for the
payment in lieu of notice was dated 2nd March 2021.
The learned counsel
argued further the claimant’s case was made worse because she issued draft when
she was deemed to know that she ought to have paid electronically by remittal
to the TSA account in this modern era. The learned counsel submitted that the concomitance
of all these is that the claimant did not give the requisite notice and
therefore did not disengage from the service. The learned counsel argued that
it was not disputed that the claimant last received salaries in December 2020
when she left to take up a new appointment and that she agreed under XX that she did not take permission
before she went. The learned counsel submitted that this was clear abscondment
but nonetheless she remained a staff of the defendants at the point she was
issued dismissal letter in September 13, 2022. Learned counsel submitted that
the claimant was therefore lawfully dismissed for absconding and not because of
withdrawal letter and the Committee did acknowledge this fact that the issues
raised in the petition could not be discussed because they were before the
Court.
The learned
counsel argued that the reasons given for the dismissal, as contained in the
dismissal letter, were therefore totally different from the reasons pleaded by
the claimant. The learned counsel argued that the claimant did not dispute that
she held two jobs at the same time. The learned counsel cited Udegbuanam v. FCDA (2003) 10 NWLR (Pt. 829)
487 at 499, E-G on abscondment as serious misconduct and that, as such, the
claimant was not entitled to be heard before dismissal in the instant case. The
learned counsel also cited Obo v.
Commissioner (2001) 1 SCNJ 215 at 221-222 and submitted that the claimant’s
absence for two months from duty [January and February 2022] warranted the
summary dismissal. The learned counsel argued that since reasons for the
dismissal were different from the original case filed in Court and for which
reliefs were claimant, the claimant was rightly dismissed as the defendants
could not be fettered from exercising their disciplinary powers against the
claimant at large. From the foregoing, the learned counsel concluded that the
claimant failed to prove that her dismissal was wrongful and ended arguments on
issue 2. The learned counsel thereafter moved to issue 3.
Under issue 3, the learned counsel argued that since the grounds of the original
suit were different from the grounds of the extant dismissal, the claimant is
not entitled to reliefs 1 & 5. The learned counsel argued that because the
reasons given by the claimant are different from the reasons for her dismissal,
the claimant is not entitled to reliefs 2 and 3. The learned counsel argued
that relief 4 is vague, as no prove of the circumstances in issue was offered. The
learned counsel argued that the claimant failed to meet the criteria for
transfer of service as prescribed under the Staff
Handbook, as she even cited the PSR,
which was applicable to her employment and that the approval is at the
discretion of the Council, which discretion the Court has no vires to interfere with. By this the
learned counsel submitted that relief 6 is not grantable while reliefs 7-8 are
not grantable because relief 7 amounts to blowing hot and cold while relief 8
is not grantable because the claimant was correctly dismissed. Thus ended the defendants’ theory of the case.
I move to summary of the claimant’s counsel’s theory of the case.
B: Claimant’s Counsel’s Theory of the Case
Learned IKE OZOR franked the claimant’s theory
of the case and submitted two issues for the determination of the case:
(a)
Whether the claimant’s claim for wrongful
dismissal is statute barred having regard to the provisions of section 2(a) of
the Public Officers Protection Act 2004 [sic]
(b)
Whether it is legally reasonable and justifiable
for the defendants to have dismissed the claimant from service on the face of
the pendency of this suit and given the circumstances and existing status of
the parties. [sic]
Arguing issue 1, the learned counsel submitted that the
defendants wrongly calculated the period of reckoning for the POPA from 13th September 2021
to 13th November 2021 and that proper calculation ends December 13,
2021. The learned counsel argued that by this fact, the ASF filed 9th December 2021 incorporating the issue of
dismissal was within the grace period and therefore not statute barred. The
learned counsel argued too that the incorporation of the dismissal by way of
amendment was in order contrary to the defendants’ counsel argument being that,
the claimant’s original claim was to prevent the defendants from dismissing her,
having successfully withdrawn her service. The learned counsel argued that
Exhibit C2, which was a reply from the defendants to the application for
withdrawal clearly indicated the defendants’ mindset, which the claimant sought
to restrain. The learned counsel cited Gbadamosi
v. Alete (1998) 12 NWLR (Pt. 578) 402 on the right to protect invasion or
threatened invasion of rights.
The learned
counsel argued that while this action was pending, the defendants went ahead to
dismiss the claimant via Exhibit C7 and therefore the amendment to incorporate
the issue of dismissal was in order and cited Chief of Defence Staff v. Abhekegba (2009) 13 NWLR (Pt. 332, 365-366,
H-C to the effect that amendments could be granted to incorporate new cause
of action, provided it is connected with the previous in court. The learned
counsel, on the basis of the foregoing, urged the Court to rule against the
defendants on their issue 1. The erudite claimant’s counsel moved to his second
issue.
Under issue 2, which is about the unreasonableness of the dismissal during the
pendency of the action, the learned counsel argued that the claimant was
dismissed while this suit was pending and while she had withdrawn her service
and employed in another place. The learned counsel argued that the claimant had
obtained an injunction in another suit to restrain the defendants from
commencing disciplinary actions against her as a result of the action she filed
in court and referred to Exhibit C9. The learned counsel argued that the issue
of dismissal or disciplinary actions were lis
pendis before the Court and cited Ohaegbu
v. Regd Trustees, Capuchin Friars Minor Nig (2022) 10 NWLR (Pt. 1839) 485 at
506, F-G and submitted that the Court is bound to set aside the dismissal
to restore its dignity. The learned counsel cited Daniel v. Ferguson (1891) 2 CH. 27 and Bass & Matt Enterprises Nig
Ltd v. Keystone Bank Ltd (2015) 1 NWLR (Pt. 1441) 609 at 624-625 amongst
others.
The learned
counsel argued that the argument of the learned defence counsel that the
defendants could not be precluded from exercising its statutory powers is misconceived,
as it is an affront to the Court. The learned counsel to the claimant argued
too that, the defence argument that the reason for the dismissal is different
from the cause of action before the Court cannot hold because, a cause of
action is determined by the claims before the Court and not by the defence
raised against the claim and cited Mbonu
v. Nigerian Mining Corp. (2006) 13 NWLR (Pt. 998) 659 at 686, A-B. The
learned counsel argued that since the original claim before the Court was to
restrain the defendants from dismissing her, it covers the dismissal in issue. The
learned counsel argued that this is more so, as the claimant had reliefs
related to issues relating to withdrawal of service and employment with another
institution and application for transfer, and sought protection against
dismissal, the argument of the learned defence counsel could not be right. The
learned counsel argued that this is borne out, when it is realised that the
letter of dismissal stated that the claimant was dismissed for securing another
employment without disengaging her service with the defendants.
The learned
counsel argued that whereas, the claimant had withdrawn her services from the
defendants by letter dated 16th February 2021 [Exhibit C1] and paid
three-month salaries in lieu of notice and also applied for transfer of service
via Exhibit C5. The learned counsel argued that by Exhibit C12, the new
institution issued to the claimant letter of employment 27th
November 2020 and submitted that the claimant was therefore an employee of the
new institution before she was dismissed 13th September 2021 for
taking up fresh appointment without disengaging. The learned counsel argued
that the defence counsel merely argued that the letter of withdrawal was not
valid. The learned counsel cited Wilson
v. AG Bendel (1985) 1 NWLR (Pt. 4) 572 to the effect that the terms:
withdrawal, resignation and retirement mean the same thing and take effect from
the date the notice is received by the employer, as the employer cannot force
the employee to continue to work. The learned counsel cited WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994)
258 and Abdullahi (2019) 17 NWLR (Pt. 1701) 293 at 315, E-F.
The learned
counsel argued that the learned defence counsel’s argument that the claimant
did not give three month notice is in sharp contrast to the evidence of DW1 at
para 7 of the WSO that the claimant
was yet to pay three-month in lieu of notice and submitted that this meant the
defendants accepts that three-month in lieu of notice was payable. The learned
counsel argued that, the DW1 admitted that the draft for payment in lieu of
notice is still with them and that the draft could be paid into the account but
that he was not an errand boy for the claimant. The learned counsel submitted
that, the defendants acted wrongly by failing to forward their reaction to the
withdrawal letter to the claimant in the addresses she provided. The learned
counsel submitted that the implication of admitting that the defendant could
accept three-month salaries in lieu of notice, binds them, as they cannot
resile again to fall back on the original contract and cited Morohunfola v. Kwara Tech. (1990) 4 NWLR
(Pt. 145) 506 SC.
The learned
counsel argued that Exhibit C6, the claimant’s Statement of Account, showed that the draft had been cashed. The
learned counsel argued that by this conduct, the defendants had waived their
right to three month in lieu of notice and cited Maiyegun v. Gov Lagos State (2011) 2 NWLR (Pt. 1230) 154 at 170, B-C
to the effect that waiver needed not to be specifically pleaded but could be
inferred from the evidence before the Court. The learned counsel submitted that
therefore the claimant had rightly withdrawn her services before the defendants
dismissed her. The learned counsel argued that, had it been the claimant
violated the need for three-month notice, the remedy is not dismissal but damages
– Ibama v. Shell Pet Dev. Co. (Nig) Ltd
(1990) 3 NWLR (Pt. 542) 493 at 499, A-B, as there is no subsisting
employment to be terminated or dismissed. The learned counsel argued that that
is why dismissal is provided under the heading “discipline” in Chapter 5. The
learned counsel cited Chukwuma v. Shell
Petroleum (1993) 4 NWLR (Pt. 289) 512 at 571.
The learned
counsel argued that the contract between the parties came to an end 26th
February 2021 when the defendants received the notice of withdrawal – Yesufu v. Governor of Edo State (2001) 13
NWLR (Pt. 731) 317 SC and NITEL v.
Oshodin (199) 8 NWLR (Pt. 615) 520 at 542, D-E. The learned counsel argued
that the defence counsel misconceived the claimant’s case by basing it on
abscondment whereas, the claimant’s case is that, she was dismissed while she
was no longer the defendants’ staff hence, the prayer to set aside the belated dismissal
on 13th September 2021 because the dismissal was a product of malice
and bad faith, apart from being an affront to the order of the Court which had
restrained the defendants from dismissing the claimant till the end of the
matter.
The learned
counsel argued that after the dismissal, the defendants subsequently used the
instrumentality of the dismissal to petition the claimant’s new employer, vide
Exhibit C15 dated November 3, 2021, to urge the new employer to also dismiss
the claimant because the 1st defendant had earlier dismissed her and
for failure to present letter of transfer. The learned counsel argued that the
defendants still inordinately wrote a reminder complaining against the new
employer’s failure to dismiss the claimant after receiving their notice that
she was dismissed by them which prompted the new employer to issue the claimant
a query and later a request for explanation vide Exhibits C16 & C17. The
learned counsel submitted that these proved the acts of malice, vendetta and
abuse of office – Sule v. Orisajinmi
(2006) ALL FWLR (Pt. 343) 1686-1730 and Offobochi v. Ogoja LGA & Anor
(2001) LPELR-2265 (SC). The learned counsel thereafter submitted that abuse
of office deprived a public officer the protection of S. 2(a) of the POPA and cited Hassan v. Aliyu & Ors LPELR [sic]-1357 (SC) and Lagos City Council
v. Ogunbiyi (1969) 1 ALL NLR 9 at 299.
The learned
counsel went further on the issue of abuse of office to argue that the claimant
gave evidence in paras 4 & 11 of her WSO
what gave rise to hostilities between her and the defendants and how the
defendants had been plotting to dismiss her and that these proved that the
defendants have been looking for a way to cause pains to the claimant and cited
Osiniola v. Fatodu (2022) 2 NWLR (Pt.
1814) 345 at 363, B-C. The learned counsel consequently inferred that, the
defence argument that the civil service rule is not applicable to the
claimant’s case but the Staff Handbook; is totally irrelevant, as the
claimant’s case is that, she was dismissed after she had left the defendants’
service. The learned counsel however conceded that the Staff Handbook was the applicable conditions of service while the
claimant was with the defendants but argued that she disagreed with the
defendants that the claimant’s employment with the defendants was one of
master-servant. The learned counsel argued that the conditions of service in
the two establishments were regulated by statute and which conferred statutory
flavour on the claimant’s employment, the Staff
Handbook, having been made pursuant to Act No. 3 of 1989 as amended by Act
No. 12 of 1993. The learned counsel cited CBN
v. Dinneh (2010) 17 NWLR (Pt. 1221) 125 at 167, B-D and other decisions and
consequently submitted that the claimant’s employment had statutory flavours.
The learned
counsel cited Chapter 5, para 5.4.4 of the Staff
Handbook on the various modes of exiting the employment of the 1st
defendant and that, where the employment is to be determined for reason of
misconduct, fair hearing must be observed and the claimant’s evidence at paras
17-18 of the WSO that neither query
nor invitation was extended to her before the dismissal but the defendants just
suo motu relied on the contents of
Exhibit C12 to dismiss the claimant after she had left their service. The
learned counsel cited Ebohon v. AG Edo
State (1997) 5 NWLR (Pt. 505) 298 at 303, A-B. The learned counsel
thereafter argued that, the arguments of the defence counsel that, the claimant
did not plead and prove the conditions of service breached in her dismissal was
fatal was not correct in that the claimant’s case was that she was not given
fair hearing and that the reason given for her dismissal was not genuine. The
learned counsel argued that the claimant had proved these in paras 16-18 of the
WSO and shown that due process was
not followed.
The learned
counsel argued that the defendants admitted the claimant was never given fair hearing
when they stated they merely referred the letter the claimant wrote to the
Committee on 7th September 2021, and the Committee deliberated on it
and made recommendations to the Council, which in turn dismissed the claimant. The
learned counsel submitted that the defendants are under obligation to observe
fair hearing as stipulated in Chapter 5, para 5.5(v) of the Staff Handbook and cited Bakare v. LSCSC (1992) 8 NWLR (Pt. 262) 641
at 699 and Andog v. Asuquo (2020) 11 NWLR (Pt. 1736) 580, 596, F-G. The
learned counsel submitted that once an employer gives reason for dismissal, it
must justify it and cited Angel Shipping
& Dyeing Ltd v. Aja (2000) 13 NWLR (Pt. 685) 532 CA and submitted that
the reason given for the dismissal was unreasonable. The learned counsel argued
that the petition written against an individual officer of the college, the
Provost, could not amount to gross misconduct. The learned counsel rounded up
that in all, the claimant proved her case and is therefore entitled to the reliefs
sought.
That being
the end of the claimant’s theory of the case, I move to the defendants’ learned
counsel reply to this theory in the Reply
on Points of Law [RPL] filed.
C: Reply on Points of Law [RPL]
The learned
defence counsel cited Sani v. Okene
(2008) 5 SCNJ 246 at 255 to the effect that when issue of S. 2(a) of the POPA is raised, the court cannot look
into the questions of malice and the like, until it has determined that the
action is not caught by the POPA. The
learned counsel also argued that the claimant failed to prove the malice and
the like.
The learned
counsel replied that what the claimant presented to the court was application
for withdrawal and not notice of withdrawal and that, having made the request,
she was supposed to wait for approval before leaving and therefore, it was
wrong for the counsel to argue that the application for withdrawal turns into
notice of withdrawal and takes effect on the date it was written.
The learned
counsel replied that the cases of WAEC
v. Oshionebo (2006) 12 NWLR (Pt. 994) 258 and Yusufu v. Governor of Edo State are not relevant to the claimant’s
case because of peculiarities in facts. The learned counsel replied that in Yusufu’s case, approval for waiver of
the period of notice was obtained, which is not the case here. The learned
counsel argued too that because the claimant breached the conditions of service,
the defendants are not burdened to observe the conditions of service in dismissing
her. Thus ended the RPL. That being
the end of the FWAs, I move to give
my decision.
But before
then, I wish to state that I have most painstakingly studied all the processes
relevant to this judgment, as is evident in my summaries above. I have also carefully
digested them. I have also carefully digested the evidence adduced both in the WSOs and the XX. Though, I am aware that I did not summarise the WSOs because they were carbon copies of
the pleadings, which I have carefully summarised before now. I have nonetheless
carefully read and digested them and would make references to them wherever
necessary in the course of the judgement. I have also done further researches
on the authorities that would enable me give a cogent decision. I have also noted
the demeanours of the witnesses. I think I am now good to go.
COURT’S DECISION AND THE RATIONES DECIDENDI
I will adopt
the concise and more pertinent issues formulated by the learned defence counsel
for the determination of this case, though, slightly modified, to make them
more concise. The modified issues are:
1. Did S. 2(a)
of the POPA catch the claim of
wrongful dismissal?
2. If the answer
to 1 is no: Did the claimant prove his case?
3. If the answer
to 2 is yes: Is the claimant entitled to the reliefs sought?
I take the
issues seriatim. I therefore start with issue 1: Did S. 2(a) of the POPA catch
the claim of wrongful dismissal? I have to make an introduction to this
issue because of the highly volatile state of the law on it. I do not think in
my experiences as both a lawyer and a judge spanning a cumulative 28 years,
there is any point of law that has been notoriously recondite as the question
of the applicability of the POPA to
contracts in the annals of adjudication in Nigeria because of the share numbers
and, the rapidity of the conflicting decisions emanating from all the three
layers of the superior courts of records in Nigeria on the issue. When I was
researching the question, I kept bumping on unending conflicting authorities
from the NIC itself and, from both
the Court of Appeal and the Supreme Court, which made my research
almost interminable! Whenever I felt I had unearthed the latest from the
appellate courts, I will bump on another!
And I
recalled that, when a situation is like this happens, the law is said to be
unsettled on that point. And for this reason the lower court is at liberty to
choose which of the conflicting decisions of the appellate courts, it believes
correctly states the law – NEPA v.
Onah (1997) LPELR-1959 (SC) 9-10, C-A; also in (1997) 1 NWLR (Pt. 484) 680; Osakwe v. F.C.E. (Technical) Asaba (2010)
10 NWLR (Pt. 1201) 36, B-C; Chime v. Elikwu (1965) NMLR 71 and, the
Court of Appeal in Ngun v. Mobil Producing Nigeria Unlimited
(2013) LPELR-20197 (CA) 31-32.
This means the latest decision on point might not be the decisive authority.
This had
prompted me to take a very hard look on the issue with a view to unraveling the
cause of the intractability. At a point, I had mulled over the idea of stating
a case to the Court of Appeal on the
issue because, that appeared to be the best way to put an end to the recurrence
of conflicting decisions on the issue, but I had to shelve the idea when I
realised that there are, with the greatest respect, many conflicting decisions,
too numerous to state all, also from the Supreme
Court on the issue. I concluded
it was not a matter that could be conclusively answered by the Court of Appeal, even though, the
ultimate court on civil matters emanating from the NIC, as the question would still remain: what would the Court of Appeal and the NIC do with any contrary later decisions
on point from the Supreme Court, from
whatever decision the Court of Appeal
makes on the case-stated?
I realised
that unfortunately, the Court of Appeal
cannot state a case to the Supreme Court
on a case stated to it by a trial court. It must answer the questions framed in
the case stated to it. This means it would be futile to state a case on the
issue to the Court of Appeal. It
means I must just air my opinion on the issue for the Court of Appeal, with the utmost respect, to be able to state a
case to the Supreme Court, to enable
the Supreme Court put a fitting end
to the seemingly intractable problem, if per chance, there is an appeal on the
matter. And in this, the Supreme Court,
with the utmost respect, would have the benefits of the new angle of vision,
which would be raised in this decision.
I then
decided that I must air my views on this stubborn issue, especially because, I
have an angle of vision to the issue, which I have not found had ever been raised
or examined in any legal literatures [courts’ decisions or scholarly legal
writings] I have come across, except in an earlier decision
of mine, in which I cursorily explored the new angle of vision, which I hope to
fully develop in this decision. And I felt that it is important that this new angle
of vision be extensively articulated now, in case there is an appeal, for the Court of Appeal or, the Supreme Court, if the Court of Appeal decides to state a case
to it, to consider along with any other reasons, in putting an end to this
recondite issue once-and-for-all, which repeatedly finds its way to the Supreme Court thus, wasting precious
judicial time and negatively impacting commercial and labour relations in
Nigeria and consequently, stifling the national economy by the uncertainty it
creates for investors and labour about the timeframe within which they can file
actions in commercial and labour disputes.
It is clear
that too much judicial time and resources are being wasted in attending to this
issue and it is also clear that, in a situation like this, the national economy
would be negatively impacted where the law is unsettled on the applicable
limitation law to causes of action emanating from contracts, commercial
transactions and labour/employment relations. In fact, it is my humble opinion
that, if there is an appeal on this issue that, this is an appropriate
situation wherein the Court of Appeal,
with utmost respect, has a constitutional duty, to state a case to the Supreme Court to enable it put an end for
all time, to the nagging question.
The fact that
the Court of Appeal, even though, the
ultimate Court on civil appeals from the NIC,
might continue to be bound by the rationes
decidendi of the Supreme Court on
the issue, as employment relations is part of the larger canopy of contracts, which
means, the Supreme Court will
continue to determine the question of the applicability of the POPA to contracts, which would continue
to have reverberating effects on litigations arising from employment contracts,
puts the constitutional duty, with the utmost respect, on the Court of Appeal, to state a case to the Supreme Court on this highly litigious
and recondite issue, if per chance, there is any appeal on this case. This
would afford the Supreme Court an
opportunity to see at ease, an array of its conflicting decisions on the issue
and thus, be able to look carefully afresh into all of them, assess them and
rationalise its final decision on what the law on this point is, in Nigeria so
that, thereafter, it would be impossible to revert to the era of conflicting
decisions by the force of the locus
classicus, as I found that the major cause of the conflicting decisions is
ignorance of the previous conflicting decisions on the point; especially those
authorities that held that the POPA
is applicable to contracts. Having done sufficient introduction, now, let me go
to the meat of the issue.
In tackling
this issue of the applicability of S. 2(a) of the POPA to contracts, inclusive of employment contracts, I shall
ignore all other arguments for now and concentrate on the conflicting decisions
of the appellate courts, especially the Supreme
Court, on the applicability of the POPA
to contracts, as accentuated in the four or five most recent conflicting
authorities from the Supreme Court on
the vexed issue: CIl Risk Asset Mgt. Ltd
v. Ekiti State Govt. & Anor (2020) 12 NWLR (Pt. 1738) 203 (SC) at 214-215, delivered
2020; Abubakar Abdulraman v. NIPC (2020)
LPELR-55519 (SC); Idachaba & Ors
v. University of Agriculture Makurdi & Ors (2021) LPELR-53081 (SC),
decided 2021 and, Oluremi
Obasanjo & Anor v. Wuro Bogga Nigeria Limited & Ors (2023) 2 NWLR (Pt.
1868) (SC) [delivered Friday June 17, 2022]. However, there is the 5th, which is not directly on the POPA but impari materia: Aba v. The
Board of Directors, Nigerian Postal Services (NIPOST) & Anor (2023) 5 NWLR
(Pt. 1878) 475. In it, the Supreme
Court construed S. 59(1) of the Nigerian
Postal Service Act [NPSA], which is impari materia with S. 2(a) of the POPA – except in its 12-month grace period against the 3-month of
the POPA – and held that, it barred the action on incorrect payment
of gratuity and monthly pension or rather, breach of employment contract. These five decisions relied
on arrays of previous conflicting decisions from the Supreme Court.
Therefore,
where the pendulum will swing on this objection on the applicability of the POPA to contracts, inclusive of employment
contracts, as in the instant case, depends on the choice this Court makes and justification
for it in line with NEPA v.
Onah [supra]; Osakwe v. F.C.E. (Technical) Asaba [supra];
Chime v. Elikwu and; Ngun
v. Mobil Producing Nigeria Unlimited [supra]. This is because the right of
choice given to the lower court in this type of situation is not to be
exercised perfunctorily. It must be justified with cogent reasons as assistance
to the appellate courts to settle the matter, if there is appeal. It is good to start with the relevant provisions
of the POPA. S. 2(a) of the POPA provides thus, and I quote:
“2. Actions Against Public Officers
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 neglect or default in the execution of
any such Act, Law, duty or authority, the following provisions shall have
effect–
Limitation of Action
(a) 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 continuance of damage or injury within three
months next after the ceasing thereof…”
Now, the Supreme Court has emphatically held in Revenue Mobilisation, Allocation and Fiscal Commission & Ors (2019) 2 NWLR (Pt. 1656) 270, E-F at www.nwlronline.com
[accessed Nov 20, 2022], hereinafter called RMAFC’s case that, the POPA
is inapplicable to contracts generally, including contracts of service and, RMAFC’s case actually involved contract
of employment, as in Idachaba’s case
[supra], where the Supreme Court,
with respect, held to the contrary on the similar facts involving contracts of
employment too! But it is clear from Idacahaba’s
case, with the utmost respect, that the Supreme
Court was not cognizant of RMAFC’s
case but was cognizant of Ibrahim v. JSC, Kaduna State (1998) LPELR-1408
(SC) 51-52, F-C, which it relied on.
It would be seen from the heading of S. 2(a) of the POPA that, it describes itself as limitation of action. So, the POPA is a limitation law – see Yare v. National Salaries, Wages and Income
Commission (2013) LPELR-20520 (SC) 19, F, where the Supreme Court clearly said: “The
Public Officers Protection Act (supra) is a statute of limitation.”
As it were, each
of the two sides in the instant case has argued fiercely, at one side that, the
POPA is applicable to this case and,
at the opposing side that, it is not applicable, but none has attempted to
resolve the Supreme Court’s conflicting
authorities on point. They neither drew attention to this nor made any thorough
researches to unearth these conflicts. They just stuck to their individual guns,
citing only authorities that supported their individual interests. None cited
the recent authorities on the issue too. Ordinarily, the latest in time ought
to prevail in all the galore conflicting authorities from the Supreme Court on this issue – see Kanu v. Sweet Asusu & Anor (2015)
LPELR-24376 (CA) 51-52, A. However, I observed in my careful reading of Idachaba’s case that, reference was not
made at all to RMAFC’s case or CIL’s case or any of the Supreme Court previous cases, where it
has held that the POPA was
inapplicable to contracts.
While still
ruminating on this, I came across Oluremi
Obasanjo & Anor v. Wuro Bogga Nigeria Limited & Ors (2023) 2 NWLR (Pt.
1868) (SC) [delivered Friday June 17, 2022], which again held that the POPA was not applicable to contracts
generally and, it cited with approval, CIL’s
case. Still yet, I came about the impari
materia Aba’s case, delivered
December 2, 2022 – just about 5 months apart – which held to the contrary again
and, cited Yare’s case with approval – 493, D-F. Because of these conflicting decisions, five
within just a space of two years – 2020-2022 – from the Supreme Court on this issue, it is clear that the law is recondite
and unsettled in this area.
It is
therefore necessary to examine more closely the truism of the seeming regnant
position that the POPA is not applicable
to contracts generally, in view of the fact that, the erudite objectors’
counsel cited Ibrahim v. JSC [supra]
and, I am aware of the later Supreme Court’s
authorities in Abubakar Abdulraman v.
NIPC (2020) LPELR-55519 (SC) and, Idachaba’s
case, which itself, cited Yare’s
case to the effect that, the POPA
was squarely applicable to contracts, and Aba’s
case decided impari materia;
while there are the authorities from the Supreme
Court at the other hand in RMAFC’s
case; NPA’s case and CIL’s case and lately, Obasanjo’s case; all from Supreme Court too, to the contrary! But Obasanjo’s case seems regnant, being
the latest [delivered June 17, 2022] directly on point and, ought to supersede but
there is Aba’s case, decided impari materia December 2, 2022. The Court of Appeal also, in Oko-Jaja v. FCSC & Ors (2022)
LPELR-57627 (CA) 35-39, B-A followed Idachaba’s
case May 25, 2022 and also, in Tertiary
Education Trust Fund (TETFUND) & Anor v. Dr. Aminu Abdurrahman Anas (2022)
LPELR-58704 (CA) delivered September 3, 2022. The Court
of Appeal, being the apex court for labour matters, shares regnancy with Idachaba’s case and with the impari materia Aba’s case.
Going by the
latest Court of Appeal’s decision, as
cited above, which was decided September 3, 2022, after the Supreme Court’s Obasanjo’s case decided
June 17, 2022, on the same issue of the applicability of the POPA to contracts, but are opposed in the
precedents laid, and the Court of Appeal
being the ultimate court on labour and employment matters or rather, the
ultimate court on appeals from the NIC’s
civil decisions, I ought to kowtow to the Court
of Appeal’s precedent and hold that, the POPA is applicable to contracts, especially with the impari materia Supreme Court’s Aba’s case
delivered later in December 2022, whereas, Obasanjo’s
case is the latest that is directly on the POPA. This has created the unsavoury state of affairs by which two
contradictory precedents, both regnant, have been established on the same point
of law to the chagrin of the judicature, giving that employment and labour
relations form part of the larger law of contract, to which the question of
applicability of the POPA is central
and on which the Supreme Court still retains
appellate jurisdiction.
Though, I
agree that the Supreme Court, with
utmost respect, lacks appellate jurisdiction on labour and employment-relations
cases, but the fact remains that, its precedent on the applicability of POPA to contracts will remain compellingly
alluring whenever the question arises in labour disputes, which form part of
the larger generic contractual disputes. There is no doubt about that. And this
is particularly so because the Supreme
Court has the implied appellate jurisdiction of case-stated over the NIC, by which this question can still
find its way to the Supreme Court
from the NIC’s decisions.
Giving the judicial
annals of Nigeria, this very unsavoury situation had actually occurred in another
instance in the recent past – January 12, 2024 in the series of electoral cases
involving both the Governor and the legislators in Plateau State, with the
governorship case terminating at the Supreme
Court and, the State’s legislative cases terminating at the Court of Appeal – wherein the decisions
of both the Court of Appeal and the Supreme Court were antagonistic on
exactly the same issue – Manasseh v.
Goshwe & Ors (2024) 6 NWLR (Pt. 1934) 203 (SC). But I am aware that the avenue of case-stated is available in
the instant scenario, which would enable either of the parties or the Court of Appeal to approach the Supreme Court by way of case-stated, in
case of appeal on this conundrum, to resolve the matter thus, creating a
precedent that is directly binding on labour matters. But, that there is a
legal conundrum; is undoubted.
And by this
legal conundrum, in whatever way one looks at it, it appears the Supreme Court still holds the ace in
this regard. And it is partly for this reason that it became incumbent on me to
make a choice between the two school of thoughts – the authorities holding that
the POPA is applicable to contracts
and those holding contrarily, and justify my choice, pursuant to the leads
given by the Supreme Court and the Court of Appeal in NEPA v. Onah [supra]; Osakwe v. F.C.E. (Technical) Asaba
[supra]; Chime v. Elikwu and; the Court of Appeal in Ngun v.
Mobil Producing Nigeria Unlimited [supra]. It is therefore clear that there is a welter of conflicting
decisions making it impossible to pinpoint a ratio decidendi common to both the Court of Appeal and the Supreme
Court on this burning legal issue.
In the NIC too, there is equally no discernible
ratio decidendi common to its
decisions on the issue. In NICN/ABJ/77/2023:
Goddy Esezobor Obainoke v. National Drug Law Enforcement Agency delivered July
25, 2023
and NICN/ABJ/268/2023: John Ogwuche
v. Bemil Nigeria Ltd & Ors delivered April 16, 2024, the NIC held in both cases, following the Supreme Court’s lead in Idachaba’s case that, the POPA is applicable to contracts of
employment. However, in NICN/EN/10/2020:
Ifecinachi Akim Onuaguluchi v. Institute of Management and Technology, Enugu [supra]
delivered October 20, 2022 and Nididiamaka
v. United Bank for Africa delivered May 13, 2024,
the NIC decided that the POPA is not applicable to contracts of
employment, following the Supreme Court’s
leads in both RMAFC’s and Obasanjo’s cases. It is thus very clear that at the three layers of the
superior courts in Nigeria, there is no discernible ratio decidendi common to their decisions on this highly vexed
issue.
Clearly at
this juncture, there are two schools of thoughts within the judicature on the
question of the applicability of the POPA
to contracts, though, largely unwittingly. And for a judicature based on the common
law tradition of stare decisis, this
is an anathema. But yet, such infamita
occasionally happens, usually because different panels, which sit on such
similar cases, may not be abreast of all the authorities that abound on an
issue and for that reason, might give differing decisions on similar facts. And
this seems to be the major cause of the problem in relation to the
applicability of POPA to contracts,
as all the authorities that held that it is applicable to contracts have their umbilical
cord tied to Ibrahim v. JSC, which unfortunately
decided nothing like that. It is either Ibrahim
v. JSC is cited directly or another precedent that cited it is relied upon
in those cases.
Another very
significant reason, with profound humility, is that none of the authorities [judicial
and scholastic] had really looked at the nature of the POPA, as dealing strictly with torts and not contracts. And it is
thought, with humility, if this is brought to the notice of the appellate
courts, it might throw a better light on the issue and help resolve it
completely, once-and-for-all. Where a situation like this arises, it gives
problem for the lower court that is aware of the irreconcilable authorities
from both divides to determine which is applicable in all the conflicting
precedents from the three tiers of courts. And we have seen the unsavoury results,
especially as these conflicting decisions tend to stifle commercial and labour/employment
contracts thus, negatively impacting the Nigerian economy. As it is abundantly
clear that there is no discernible ratio
decidendi common to the decisions of the three layers of the superior
courts in Nigeria on the issue, the latest might not be the binding precedent
as ably laid down by the Supreme Court
in NEPA v. Onah [supra]; Osakwe v.
F.C.E. (Technical) Asaba [supra]; Chime v. Elikwu [supra] and; the Court
of Appeal in Ngun v.
Mobil Producing Nigeria Unlimited [supra]. It means in this instance that, like all legal principles, there is an
exception to the doctrine of stare
decisis in a situation like this. Let us now see how it works out in the
scenario of this case.
I state in
retrospect that I am not unaware of the seeming ratio of the Supreme Court
in Ibrahim v. JSC, Kaduna State (1998)
LPELR-1408 (SC) 51-52, F-C that the POPA
is applicable to contracts of employment, which is why the Supreme Court cited Ibrahim
v. JSC and Yare’s case with
approval in both Idachaba’s case and, the Supreme Court’s impari materia Aba’s case. The Supreme Court
also seemed to have suggested in CBN v.
Amao & Ors. (2010) LPELR-838 (SC),
which was cited in Aba’s case that, the POPA
would have applied, had the cause of action not been continuance in nature,
whereas, in RMAFC’s and CIL’s cases, the Supreme Court cited a lot of its previous authorities, where it was
held to the contrary that the POPA was
not applicable to contracts. In fact, NPA
v. Construzioni Generali FSC & Anor 3 PLR/1974/48 (SC) at www.judgments.lawnigeria.com
[accessed 18/07/21], which the Supreme
Court cited with approval in both RMAFC’s
and CIL’s cases, did very thorough
examination of the issue from both sides of the divides. Thus, it is clear the Supreme Court, with utmost respect, has
ample irreconcilable conflicting decisions on this issue, so also is the Court of Appeal in each of the mentioned
cases and likewise, the NIC.
In fact, both
the trial court and the Court of Appeal
held that, the POPA was applicable to
contracts in CIL’s case but the Supreme Court overruled them. The NIC too, following the leads of the
appellate courts, have also had its own shares of irreconcilable conflicting
decisions on this issue, as I have shown before now! Clearly and with utmost
respect, it is evident that there is no discernible ratio decidendi common to the decisions of the three levels of the superior
courts in Nigeria on this extraordinarily troublesome issue.
But before I
go further, I wish to point out that, Ibrahim
v. JSC [supra] seemed to be the very first time the Supreme Court made the POPA
applicable to contracts in Nigeria and has since then, been the anchor of all the
subsequent authorities that decided that the POPA is applicable to contracts. It was therefore not by chance
that virtually all the previous cases on the POPA, before Ibrahim v. JSC,
were squarely on torts.
Ibrahim v. JSC was decided December
18, 1998, 26 years ago. But with all humility, Ibrahim v. JSC did not itself advert to the earlier authorities of
the Supreme Court that the POPA was not applicable to contracts,
including contracts of employment. Most importantly, it must be noted that, the
issue of whether the POPA applied to
contracts of employment or to any contracts at all, was not raised at all nor considered
at all and, was not decided at all in Ibrahim
v. JSC. The issue that was actually canvassed, and which was actually
considered and decided was: whether artificial public bodies, like the Judicial Service Commission [JSC], as distinct from natural human
beings, could take the benefits of the POPA
and, the Supreme Court held that, the
POPA applied to all persons: human,
artificial, corporate and institutional persons, so far they are public bodies,
as public officers and therefore, concluded thencefrom, without any further
interpositional discussion, that the case was statute barred, even though, the
case dealt with contract of employment.
It would be
seen, with utmost humility, that the ratio jumped a point in coming to the
conclusion, obviously because this point was never canvassed by the lawyers,
who were fixated on whether artificial public bodies could take advantage of
the POPA. Naturally, the ratio jumped
from examining and deciding the question whether the POPA availed public statutory bodies and its decision therein that,
it applied to public bodies just like natural persons, to the conclusion that
the case was statute-barred without examining the applicability of the POPA to contracts, which had been
decided to finality in several earlier Supreme
Court’s decisions to the contrary, and which was another issue entirely. Thus,
the Supreme Court did not examine the
question whether the POPA was
applicable to contracts in Ibrahim v.
JSC.
Therefore,
the real ratio in Ibrahim v. JSC was
that, the POPA applied to both
natural and artificial persons alike as public officers and not that, it
applied to contracts. In CBN v.
Amao [supra] the issue of
whether the POPA applied to contracts
of employment did not also directly crop up and the Supreme Court even held that the POPA was not applicable in the case because of the continuance
nature of the cause of action. So, the dictum in CBN v. Amao that the POPA
could have applied, remained what it was, with the greatest respect, obita dictum. But the Supreme Court approved this dictum in its
December 2022 Aba’s case, decided on
the impari materia S. 59(1) of the NPSA with S. 2(a) of the POPA.
However, with
the gravest respect, it is evident that Ibrahim
v. JSC and CBN v. Amao were not
decided squarely on point. Thus, the circumstances of the cases are
distinguishable from those of the NPA v.
Construzioni Generali FSC & Anor 3 PLR/1974/48 (SC) at www.judgments.lawnigeria.com
[accessed 18/07/21]; RMAFC’s case;
CIL’s case and, Obasanjo’s case, where the issues of applicability of the
POPA to contracts were directly raised
and considered and, the Supreme Court
squarely held on point that, the POPA
was totally inapplicable to contracts, including contracts of employment and
gave copious reasons. It must be pointed out at this juncture that the NPA’s case, which is the locus classicus on this issue, was not
directly based on the POPA but a
statute impari materia with the POPA. It is therefore necessary to
reproduce the provisions of S. 97 of the Ports
Act, which the Supreme Court
considered in NPA’s case, to throw
more lights on this issue. It provides:
“(1) When any suit is commenced against
the Authority or any servant of the Authority for any act done in pursuance or execution, or intended execution of
any Ordinance or Law, or of any public duties or authority, or in respect of
any alleged neglect or default in
the execution of such Ordinance, Law, duty or authority, such suit…
(2) No suit shall be commenced against
the Authority until one month at least after written notice of intention to
commence the same shall have been served upon the Authority by the intending
plaintiff or his agent…”
One can see
clearly that, these provisions are impari
materia with those of S. 2 of the Public
Officers [Protection] Ordinance, the precursor of S. 2(a) of the POPA and must, for that reason, enjoy
the same interpretation. NPA’s case
was decided in 1974 and was one of the earliest cases that anchored the
subsequent decisions that the POPA
was not applicable to contracts. No wonder that the trial judge held in NPA’s case that the section applied not
to actions relating to contracts. It needs be stated that as far back as 1953 [71
years ago] the issue of inapplicability of the POPA to contracts had been settled in Nigeria in Salako V. L.E.D.B. (1953) 20 NLR 159
and reiterated 16 years later in 1969 in Bankole
V. NBL (1969) NCLR 385 at 390. I think it is important to quote extensively
from NPA’s case, the locus classicus, to show how the Supreme Court upheld the trial court’s
decision that S. 97 of the Ports Act;
impari materia with S. 2(a) of the POPA, was inapplicable to contracts:
“De
Commarmond S.P.J. as he then was, construed the provisions of S. 2 of the
Public Officers Protection Ordinance which is almost identical with S. 97 of
the Ports Act, and thereafter stated the law as follows:
‘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
work and labour done, etc.’
Delivering
the judgment of the court…Brett, M.R., made the following illuminating observation:
‘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
[sic] an enactment of this kind does not apply to specific contracts. Again,
when goods have been sold, and the price is to be paid upon quantum meruit, the
section will not apply to the action for the price, because the refusal or omission to pay would be failure to comply with the terms of the contract and not with the
provisions of the statute.”
Close
attention should be paid to the bold portion of the excerpt, which is actually
the last part of the excerpt too, as it clearly showed that the court barely fell
short of specifically stating that the POPA
was only applicable to torts. Greater attention should be paid too to the
further underlined portion within the larger bold portion, which showed clearly
that the POPA does not contemplate
breach of contracts at all. By clearly identifying that, when contract is
involved, you can only talk of breach of the terms, which is not applicable in
torts because torts is based on non-consensual injuries, it is clear it implies
that the POPA applies to duties
imposed by law which violations are only actionable in torts and not, obligations
arising from contracts set up by the parties themselves. The Supreme Court in as recent as March 13,
2020, in holding that the POPA was
inapplicable to cases founded on breach of contracts, in CIL’s case, 6-9, E-D
reechoed the NPA’s ratio on point
with approval:
“…granted
Public Officers Protection Act were invokable by officers in the public service
of Ekiti State, the two courts below misapplied the scope of the Act to the
peculiar facts of this case. The Appellant had consistently submitted to the
two Courts below that the provision of Section 2(a) of the public [sic] Officers
Protection Act is not applicable to the instant case, in that the action was
founded on recovery of land and/or breach of contract. This Court had, in A.G.
RIVERS STATE V. A.G. BAYELSA STATE (2013) 3 NWLR (pt. 1340) 123 at 150; MULIMA
V. USMAN (2014) 16 NWLR (pt. 1432) 160 at 212, held that ‘the protection
afforded public officers under the public [sic] Officers protection [sic] Act
does not apply in cases of recovery of land’. The second limb of the
Appellant’s submission on the scope of Section 2(a) of the Public Officers
Protection Act is that the provision does not apply to cases founded on
contract, or breach of contract. The Appellant is correct…OSUN STATE GOVERNMENT
V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of
lease agreement. The Respondent sued Osun State Government seeking a
declaration that the latter’s purported termination of the Management Lease
Agreement was wrongful. The respondent sought further order nullifying or
setting aside the purported termination, and an order for specific performance.
Osun State Government pleaded limitation afforded by the Public Officers
Protection Act. This Court unanimously rejected the plea and held that Section
2 of the Public Officers Protection Act does not apply in cases of recovery of
land or breach of contract. It cited, with approval, previous decisions on this
point in SALAKO V. L.E.D.B. (1953) 20 NLR 159; NPA V. CONSTRUZIONI GENRALI
[sic] F.C.S (1974) 9 NSCC 622; (1969) 1 ALL NLR (pt. 2) 463; BANKOLE V. NBL
(1969) NCLR 385 at 390. It is very clear from the ipsi dixit of the
Respondents, at pages 150 – 160 and 191 – 192 of Record, in their respective
preliminary objections, that they justified the revocation of the Appellant’s
R. of O on the fact that the Appellant was in breach of the contract terms,
conditions and obligations contained in the C of O…It is apparent also from
paragraphs 2.3; 4.43; 4.58; 4.91; 4.100 – 106, and 4. 109 of the 1st
– 3rd Respondents [sic] that they had, contrary to established
judicial precedents, invoked Section 2(a) of the public [sic] Officers
Protection Act as statutory bar to Appellant’s cause of action premised on
breach of the contractual terms, condition [sic] or obligations in the
Certificate of Occupancy. In my firm view, my Lords, the two Courts below were
in error to have acted on Section 2(a) Public Officer Protection Act to strike
out the suit of the Appellant for being statute barred. The scope of the Act does not extend to actions founded on recovery of
land or breach of contract. The two Courts below had definitely misconceived
the scope and spirit of the Act.”
From the NPA’s case earlier quoted above,
construed along with the CIL’s case
just quoted above too, it is clear the Supreme
Court laid down a very solid backbone for the proposition that the POPA does not apply to contracts. In
fact, the Supreme Court narrowly fell
short of specifically and categorically stating in NPA’s case that the POPA
dealt only with torts and not contracts. Employment relations are based
principally on consensual agreements while torts are based on non-consensual interactions/injuries.
The Supreme Court echoed this when it
held in G.B. Ollivant Nig. Ltd v. Agbabiaka (1972) LPELR-1295 (SC) 9, F that: “…claim for wrongful dismissal is a claim in contract.” A dispassionate reading of the pleadings in
the instant case showed that the claimant’s suit is based on allegations of
wrongful dismissal. In fact, the first relief claimed is declaration that the
dismissal was unlawful. It is thus clear that the claimant’s case is built on
alleged breach of his contract of employment. Cases of dismissal or termination
are strictly allegations of breach of contract.
It does not
detract from the breach of contract simply because, allegations of defamation or
any other ancillary allegations arising from breach of the contract of
employment are made. But Yare’s case
and, now Idachaba’s case are, with
utmost respect, knotty in that, they were both decided squarely on point and
yet, held against the long line of the previous Supreme Court’s decisions, which held that, the POPA was not applicable to contracts. However,
it would be seen that both cases did not specifically consider the long line of
Supreme Court’s contrary decisions on
point at all not to talk of overruling them directly or impliedly. In Yare’s case, the Supreme Court held:
“The Public Officers Protection Act (supra) is a
statute of limitation. It is exact as to the time frame. It provides for three
months not a day longer than three months. It is quite clear and in no doubt
that the Appellant complainant was terminated on 9th January, 1999.
Upon being relieved of his employment, the Appellant had a choice to quickly
enforce his right by going to the Court to ventilate his grievances. He elected
to sleep away, he woke up late to allege that he was waiting for the outcome of
his appeal to the Senior Staff Committee of the Respondent. This excuse is not
only untenable, but an afterthought. The provisions of the Act is [sic] clear
and unambiguous. The effect of the limitation law is that any action that is
statute barred removes the right of action, the right of enforcement and the
right to judicial relief, as from the 9th of December, 1999, when
the Appellant’s employment was determined…”
In Adachaba’s case
the Supreme Court held on point
squarely too:
“Whatsoever might have brewed between
the appellants and the respondents, what I have before me is that the
appellants’ appointments with the 1st respondent were terminated
sometime 30/4/1999. By the above provision, they appellants were by law
supposed to institute their grievances, if any, within 3 months of the
purported termination of their employment. It is noted that the cause of action
arose supposedly 30/4/1999. Thus, the appellants’ action was maintainable only
3 months after the cause of action arose.”
The Supreme Court
actually cited Yare’s case and Ibrahim v. JSC in Idachaba’s case with approval in holding that the POPA was applicable to contracts of
employment. And the Supreme Court, in
it most recent Aba’s case, also
cited Yare’s case to decide that S.
59(1) of the NPSA, which is impari materia with S. 2(a) of the POPA, barred failure to pay the correct monthly
pensions, a breach of contract. But Yare’s
case did not cite any previous decision of the Supreme Court on the issue. And I have noted earlier on that the Supreme Court did not actually decide in
Ibrahim v. JSC that the POPA was applicable to contracts. We can
therefore see the impact of Ibrahim v.
JSC’s as precedent on the decisions based on it. I note that in Idachaba’s case, the issue of the
applicability of the POPA to
contracts directly cropped up from the objections filed by the defendants at
the trial court and, through the Court of
Appeal to the Supreme Court, the
decisions of the three courts were the same that: the POPA was inapplicable to contracts.
However, one thing I observed about the three cases is that,
none examined the previous conflicting decisions of the Supreme Court on the same issue. I have also observed that, in RMAFC v. Johnson & Ors (2019) 2 NWLR
(Pt. 1656) 270, E-F at www.nwlronline.com
[accessed Nov 20, 2022], the Supreme
Court even cited Ibrahim v. JSC
[supra] with approval on another point but decided that the POPA was totally inapplicable to
contracts of employment without specifically overruling Ibrahim v. JSC. This is what the Supreme Court said therein:
“Generally, the law is that, where a
statute provides for the institution of an action within a prescribed period,
proceedings shall not be commenced after the time prescribed by such statute.
Any action that is brought after the prescribed period is said to be statute
barred. See; Ibrahim v. JSC (1998) 14
NWLR (Pt. 584) 1…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 the Public Officers
Protection Act does not apply to cases of contract…”
With grave humility, I think the take-home from the above is
that, the Supreme Court, having cited
Ibrahim v. JSC and departed from it,
when it held that, the POPA was
inapplicable to contracts of service, whereas, Ibrahim v. JSC had held, it was applicable; the implication is
that, it overruled Ibrahim v. JSC
with regard to the issue of applicability of the POPA to contracts of employment. The Supreme Court obviously noted, with utmost humility, the gap in Ibrahim v. JSC and impliedly came to
the conclusion that Ibrahim v. JSC
never actually decided that the POPA
was applicable to contracts, as I have pointed out earlier. In impliedly overruling
Ibrahim v. JSC the Supreme Court did not cite Yare’s case but by inference, having
overruled Ibrahim v. JSC, which
anchored both Yare’s case and Idachaba’s case, it must be taken to
have equally impliedly overruled both Yare’s
and Idachaba’s cases, having
taken the sail out of Idachaba’s case,
which was based on Ibrahim v. JSC
and also, Aba’s case equally
anchored on Ibrahim v. JSC. I also
noticed that in Aba’s case, just
like in Ibrahim v. JSC, the issue of
whether S. 59(1) of the NPSA, being impari materia with S. 2(a) of the POPA, was applicable to contracts was
not raised and examined.
Though, I note that Idachaba’s
case is latter to RMAFC’s case, but by previously overruling Ibrahim v. JSC, which anchored Idachaba’s case, the wind, with utmost
respect, appeared taken out of the sail of Idachaba’s
and Aba’s cases anchored on the overruled Ibrahim v. JSC and Yare’s
case. Now, in Idachaba’s case
the Supreme Court cited Yare’s case and Ibrhaim v. JSC and held that, the POPA was applicable to contracts of employment. However, shortly
thereafter, the Supreme Court
returned to the memory lane once again and decided again in Obasanjo’s case that the POPA was not applicable to contracts and
also impliedly overruled Ibrahim v. JSC,
which it cited with approval on another point. In Obasanjo’s case, the Supreme
Court equally reviewed a lot of its previous decisions holding that, the POPA was not applicable to contracts,
the most recent of which was CIL’s case. Ibrahim v. JSC was cited by the objectors/respondents as holding
that the POPA was applicable and, the
cause of action in Obasanjo’s case was
founded on contract and, the Supreme Court
said no:
“Counsel cited the case of Ibrahim v.
JSC…[265, A] It is my view that the
authorities relied upon by the learned counsel for the 1st, 2nd,
3rd and 4th respondents on this matter are not relevant.
Therefore, the provisions of section 2(a) of the Public Officers Protection Act
relied upon by the learned counsel for the respondent [sic] is [sic] not
helpful to them…
The finding of the court below is
unassailable because this court has held in a legion of cases that the
provision of section (2) of the Public Officers (Protection) Act is not
absolute and without its limitation. Such limitations are predicated on
recovery of land, breach of contract or claims for work and labour done.” [269, A-D]
It is very evident from the above and the previous reviews
of Ibrahim v. JSC cited earlier on that
the Supreme Court has repeatedly
decided that its authority in Ibrahim v.
JSC did not decide that the POPA
was applicable to contracts and cannot be an authority for that proposition of
law. It is also self-evident and with the greatest humility that, Idachaba’s case did not advert to the previous Supreme Court’s contrary decisions on point. So also is the most
recent of the Supreme Court’s
authority on the impari materia S.
59(1) of the NPSA, which it held, barred
the contractual breaches in issue. It is also evident that none of the Supreme Court’s authorities that decided
that the POPA was applicable to
contracts cited any of the previous Supreme
Court’s contrary authorities on the issue and departed from it. Thus, with
the gravest humility, it is crystal clear that, there is no discernable ratio decidendi to be relied
on in these cases; especially that the Supreme
Court did not take cognisance of its penultimate decisions in RMAFC’s case and CIL’s case and its earlier locus
classicus in NPA’s case, which did very thorough
examinations of the issue and reviewed a lot of previous authorities [foreign
and local] before coming to the conclusion that the POPA was not meant to be applicable to contracts, including
contracts of employment and, concluded firmly that the POPA was totally inapplicable to contracts generally.
Not having directly cited NPA’s case, NRMA&FC’s
case and Obasanjo’s case or any from
the long lines of previous contrary Supreme
Court’s authorities that said the POPA
was inapplicable to contracts and overruled them, it means Idachaba’s case and, most
recently, Aba’s case decided impari materia, with the utmost respect,
cannot be the law on this issue since; they did not consider at all and did not
overrule these previous contrary authorities either directly or impliedly,
making it difficult to pin down the ratio to follow. In a grave situation like
this, the Supreme Court in its equitable
wisdom, in NEPA v. Onah (1997)
LPELR-1959 (SC) 9-10, C-A gave the solution in the following beautiful
words:
“Where there is no discernible ratio decidendi
common to the decisions of a superior court and this Court has handed down
conflicting decisions, the lower court
or a court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct…”
The Supreme Court also gave the above
prescription in Osakwe v. FCE [supra];
Chime v. Elikwu [supra]; and the Court of
Appeal, in Ngun v. Mobil Producing
Nigeria Unlimited (2013) LPELR-20197 (CA) 31-32 followed the Supreme Court’s precedents NEPA’s and Osakwe’s cases [supra]. That
appears to be the route I shall follow in the instant case, in which the NIC, Court
of Appeal and the Supreme Court,
with the gravest respect, have all been enmeshed in long lines of labyrinths of
irreconcilable conflicting decisions on the issue of whether the POPA is applicable to contracts and
thus, created a situation where there is no clear ratio decidendi that is common to their decisions on this point
that, the NIC, a trial court in the
instant case, could follow with certainty, and certainty being the whole
essence of stare decisis. The irreconcilable
conflicting authorities of the NIC,
the Court of Appeal and Supreme Court in the above-cited cases
therefore justified my making a choice from the two schools of thought. And in
doing this, I am not necessarily bound by the latest in time but I must give the
reasons for my choice or the reasons why my choice appeared to me “to be
correct….”
For the Supreme Court
says, the trial court is free to: “choose between the decisions which appear to it to
be correct…” In arriving at
its decision in RMAFC’s case, the Supreme Court, like in Obasanjo’s
case, also cited and reviewed a long line of its decisions and came to the
conclusion that the inapplicability of the POPA
to contracts is “settled” – 270, E [supra] – but
this is not to be, as the recrudescence manifested in quick successions from
the Supreme Court in Idachaba’s case and now, Aba’s case, and both cases, unfortunately,
with utmost respect, made no reference to CIL’s
case or Obasanjo’s case decided
about the same time, or any previous Supreme
Court’s contrary decisions on the same point. The position that the POPA was inapplicable to contracts was
affirmed with a more tone of finality in the likely penultimate Supreme Court’s decision to Idachaba’s
case, in CIL’s case 55-57, A. In
it, the Supreme Court cited Ibrahim v. JSC on another point but did
not specifically overruled it but clearly knowingly decided against it on point
but unfortunately, did not still cite Yare’s
case, decided on point, but contrarily.
But CIL’s case
went to memory lane to cite a long line of Supreme
Court’s decisions that had held that the POPA was not applicable to contracts and, went even miles further,
to hold specifically that, it was S. 4(1) of the Limitation Law of Ekiti State that was applicable to actions
founded on contracts in Ekiti State
and ended, by saying: “It is now settled
that Section 2 of the Public Officers (Protection) Act does not apply to cases of contract.”
– 56, E. Yet, an issue, which, at
least, two different Supreme Court’s
authorities said, had been settled, refused to be settled, like the proverbial murder
corpse, thought to have been buried and forgotten, but which kept getting
exposed at the slightest opportunities.
Thus, with Obasanjo’s
case, holding again that the POPA
is inapplicable to contracts, which is the latest directly on point I know of,
it may still be that the last has not been had on this issue, as another Supreme Court’s decision might have held
directly and contrarily on point without my knowledge or may later, going by
how reconditely recurrent the conflicting decisions on the issue had been for the
past 26 years now since the time of Ibrahim
v. JSC when the Supreme Court
first seemingly held that the POPA
was applicable to contracts. But, at least, I am aware of Ada’s case decided December 2, 2022, just about five months after Obasanjo’s case, on the impari materia S. 59(1) of the NPSA that, like the POPA, it barred the purely contractual causes of action. In a space
of two years – 2020-2022 – the Supreme
Court has had at least, five
conflicting decisions on this nagging issue, such that, all the lower superior courts
have been enmeshed in spates of conflicting decisions, according to which of the
Supreme Court’s conflicting authorities
on the issue are known to the individual judges or the separate panels of the Court of Appeal and, not necessarily the
most recent, such that, within the same court, countless parallel irreconcilable
conflicting decisions exist on this same issue!
I think the three things that can bring a convincing end to
this very grave situation is first, to bring up the facts of these irreconcilable
conflicting decisions to the knowledge of the Court of Appeal, and by way of case-stated, the Court of Appeal, with utmost respect, brings
them to the knowledge of the Supreme
Court together with the reasons why one side of the divides is preferable
to the other, so that, the Supreme Court
can have the golden opportunity to see these arrays of its irreconcilable conflicting
decisions and the different shades of opinions on them, assess, and pronounce
on all of them once-and-for-all. This is direly necessary for the much-needed
certainty in law in the commercial and labour circles of the national
economy.
I have examined fully a part of the reasons, why this
decision prefers the school of thought that the POPA is not applicable to contracts generally, by showing clearly
that Ibrahim v. JSC, which is the
anchor of all the subsequent decisions that the POPA was applicable to contracts, did not actually decide anything
like that. In this regard, I have also carefully shown through the Supreme Court’s cases that decided that
the POPA was not applicable to
contracts that, they all cited a lot of previous Supreme Court’s authorities that supported that view. I also showed
that a good number of them overruled Ibrahim
v. JSC, while none of the Supreme
Court’s authorities that held that POPA
was applicable to contracts, cited any previous contrary decisions of the Supreme Court.
However, I have not fully explored the novel idea that the POPA is actually meant for only torts
and only applicable to torts. I have only hinted at it. It is now necessary to fully
explore this new angle of vision on the issue for the benefits of the appellate
courts in coming to a more definite conclusion, taking into consideration all
shades of opinions on the issue, per chance, the case goes on appeal on this
point. It is now evident that there
is a very complex issue at hand. Going by the ratio of the Supreme Court in NEPA v.
Onah [supra] that in situations like this, the lower courts have the grace
to choose which to follow in the myriad of Supreme
Court’s irreconcilable conflicting decisions on point, I feel safe to make
a choice. But implicit in the ratio is that, I must give reasons for preferring
one to the other. I cannot just cherry-pick one over the other whimsically. My
decision to choose one over the other must be of assistance to the appellate
courts in resolving the conflicts, for which reason, I must justify my choice.
As I have clearly held earlier that I sided with the school
of thought that says the POPA is
totally inapplicable to contracts, I therefore choose Obasanjo’s case and all the previous authorities since Salako V.
L.E.D.B. (1953) 20 NLR 159 [71 years
ago] and reiterated 16 years later in 1969 in Bankole V. NBL(1969) NCLR 385 and, reinforced with greater virility
in 5 years later in NPA v. Construzioni Generali FSC & Anor 3 PLR/1974/48 (SC), as
the locus classicus, down to Obasanjo’s
case [2022] as the authorities on the question of the applicability of
the POPA to contracts. And
fortunately, Obsanjo’s case is actually the latest Supreme Court’s authority that is
directly on point known to me, while I agreed that there is a later contrary Court of Appeal’s decision in TETFUND’s case [supra], the Court of
Appeal being the ultimate Court on labour matters, and the most recent impari materia decision of the Supreme Court in Ada’s case, with which it shares regnancy.
But the poser is: can I bypass a direct Supreme Court’s authority on point for an indirect Supreme Court’s authority decided impari materia? That is the legal conundrum;
apart from the other reasons which made it feasible to make a choice. Like I
explained earlier, the Supreme Court
still has regnancy on this issue, notwithstanding it has no direct appellate
jurisdiction on labour matters, by reason of its jurisdiction on case-stated on
labour matters. But, like I have earlier explained, the doctrine of the later
prevailing in situations of conflicting decisions of the superior courts is not
necessarily applicable in a situation like this because of lack of clear ratio decidendi common to all the three layers of the superior courts in
Nigeria on this much vexed issue. Had Obasanjo’s
case not been decided directly on point, I would definitely still have
chosen RMAFC’s and CIL’s cases over Idachaba’s and Aba’s cases,
though earlier in time, for the reasons earlier given and, the one to be fully
explored now. To solve this problem with greater conviction than previously
treated, we must unravel the real cause, which is contained in the fact that
the POPA is not actually meant for
contracts at all, but purely for torts.
I have given reasons within the confines of the available
authorities by showing, with the gravest respect, that Ibrahim v. JSC was not an authority for the proposition that the POPA is applicable to contracts. But
there appears to be some lingering confusion about the exact nature of the
provisions of the POPA, which if not
cleared convincingly, the mere exposure, with grave respect, of the gap in Ibrahim v. JSC might not be able to bring
a lasting solution to the problem, as the school-of-thought that says the POPA is applicable to contracts might
stick to its gun that, it is nonetheless applicable. What is the real reason for this turn of events? That is the
billion-dollar question. I shall attempt to answer the question with grave
responsibility.
Taking a very critical look at the POPA, it is quite reasonable to surmise that, it applies not to
contracts at all. This is evident from the fact that, S. 2(a) of the POPA covers actions, omissions, negligence
and, defaults so specified, which are not contractual agreements, but arise
from the performances of the statutory duties placed on the shoulders of public
officers and the corresponding duties of cares in the course of carrying out these
statutory duties placed also by law on the shoulders of all persons, human and
artificial, public and private. The law created by S. 2(a) of the POPA is therefore situated within a
conflict between two duties imposed on public officers by law.
Whereas; contractual agreements are independent agreements
of personal characters, which are not prescribed by any law, but by the personal
agreements of the parties, which the law only recognises and enforces. That is
to say, the rights to be enforced under contracts are independent of any
statute, while those covered by S. 2(a) of the POPA arise from public duties created by statutes or common law,
which public officers or bodies, in the courses of implementing, may commit the
acts or omissions, negligence or defaults arising therefrom, leading to the
injuries, which the POPA regulates
the procedures or conditions precedent for litigating. A very careful
examination of the provisions of S. 2(a) of the POPA would reveal that it strictly apply to torts and not contracts.
It is said that:
“A tort may be defined broadly as a
civil wrong involving a breach of duty
fixed by law, such duty being owed to the persons generally and its breach
being redressable primarily by action for damages...’ – [Aviomoh v. COP (2022) 4 NWLR (Pt. 1819) SC 111, D-A]
‘A civil wrong, other than breach of
contract, for which a remedy may be obtained, usu. in the form of damages; a
breach of a duty that the law imposes on persons who stand in a particular
relation to one another.” – [Black’s Law
Dictionary, Deluxe Ninth Ed. 1626]
‘What then is negligence? Negligence is
said to be the omission or failure to do something which a reasonable man,
under similar circumstances, would do, or doing of something which a reasonable
and prudent man would not do. Negligence can be said to be the failure to
exercise that care which the circumstances demand, that is, the absence of care
according to the circumstances.” – [Ayadi
& Ors v. Mobil Producing Nigeria Unlimited (2016) LPELR-41599 (CA) 36, A-C]
Thus, tort includes both intentional, accidental or
negligent acts and omissions [defaults] once the duties fixed by law for the
benefits of all persons are breached – see MTN
Nig. Communications Ltd v. Essien & Ors (2021) LPELR-55841 (CA) 16-17, D-A.
In G.B. Ollivant Nigeria Ltd [supra] 9,
C-F, the Supreme Court says of
the distinction between torts and contracts:
“At present day, tort and contract are
distinguishable from one another in that the duties in the former are primarily fixed by law, while in the
latter they are fixed by the parties
themselves. Moreover, in tort the duty is towards persons generally; in
contract it is towards a specific person or specific persons.’ If the claim depends on the proof of terms
of the contract, the actions does not lie in tort, so a claim for wrongful
dismissal is a claim in contract.”
From the above, it is clear that the duty of care covered by
the POPA is owed to the public
generally and not to specific persons and therefore, the POPA covers torts alone and, not contracts. A very careful look at
the provisions of the POPA, as
reproduced earlier on in this decision, especially the bolded portions, in
conjunction with the above quotations from the Supreme Court on the nature of torts and the distinctions between
tort and contract, cannot escape the conclusion that, the POPA covers tortious liabilities of public officers arising from
their acts and omissions, negligence and defaults in carrying out their public
duties. In carrying out the public duties assigned to them, the public officers
have corresponding duties of care, also fixed by law not to unlawfully injure
the rights of others and not to be negligent or brash to the rights of the
people that might be directly affected by their actions or inactions. Where
they failed in these duties and tortious injuries result [not breach of
contract], the victims must approach the courts for redress within three months
thereof; failing, which the POPA bars
the right to litigate the tortious causes of actions.
That is the whole essence of the POPA. Clearly, the POPA
does not deal with contractual issues, which duties and obligations are set out
in the consensual agreements between the parties such that, even when negligence
leads to breach of contracts, the injured party does not talk of suing for
negligence but for breach of contract: he does not talk of the negligence that
led to the breach of contract at all but of how it amounts to breach of the
terms of the contract involved. He does not talk of the default that led to the
breach but of the breach of the term. In a nutshell, he does not talk of the
actions or inactions, negligence or defaults but of the breach of the terms of
the contract. Whatever negligence, action or inaction that occurs, once the
injured party cannot show the terms of the contract that covers it, he cannot
bring an action in contract but he might in torts.
Where there is negligence leading to injury and the injured
party cannot point to the term of the contract breached, he has no right of
action in contract, but only in torts. The party complaining of breach must
show what the agreement or term was and, how or in what manner it was breached.
Whenever the talk is about negligence, act or omission or default, the branch
of the law in mind is law of tort and not contracts. But whenever the talk is
about breach of terms, the branch of the law in question is law of contracts.
That is why contract is defined as: “An agreement between two or more parties
creating obligations that are enforceable or otherwise recognizable at law.” – Black’s Law Dictionary [supra], 365.
When you talk about duties of care and negligence in
carrying out such duties, be they public duties or private duties, you are
talking about torts and not contracts, for; contracts are based on consensual agreements
and breach of the agreements and, not negligence, default, action or inaction. I
have shown earlier that NPA’s and CIL’s cases merely fell
short of directly stating that the similar provisions of the Ports Act and the POPA were actually talking about torts and not contracts. That they
were talking about torts and not contracts is the implied anchor of their
decisions that these statutes did not apply to contracts. Causes of actions
arise in contracts from breach of consensual agreements personally fixed
priorly by parties themselves and, not from breach of duties fixed by law, by
which negligence, wrong actions and inactions give rise to the causes of
actions in torts. From the foregoing, it would be clearly seen that the
injuries envisaged by S. 2(a) of the POPA
have nothing to do with breach of agreements [contracts], but tortious
liabilities fixed by law, whether intentional or accidental or negligent.
And for this reason, it is reasonable to put a three-month
moratorium to sue on torts because of the nature of evidence required for proof
and defence of actions in torts, which are not contained in any document duly
executed by the parties but in their memories and the memories of the eyewitnesses
to the causes of action, which usually occur extempore and, which witnesses/evidence
might quickly fade away or become unavailable by reason of job mobility and the
personal mobility of the eyewitnesses. In fact, by the nature of tortious
injuries and the passions they arouse, aside the total lack of prior agreements
between the parties, who most often are strangers to themselves, it is most
unlikely that victims would wait for up to three months to file actions, except
where the nature of injuries sustained are such that the victims are totally
incapacitated to commence actions timeously. But even in these, the
next-of-kin, parents and guardians would quickly step in and take prompt
actions. In a nutshell, the nature of tort demands very prompt or urgent legal actions,
where there is the slightest non-cooperation from the tortfeasors. Usually
tortious causes of actions often simultaneously lead to police/criminal actions
and civil tortious actions to underline the nature of the passions that are aroused
in the victims and relations of tortious injuries; and this is not usually the
case with contracts, which have no connexion to crimes or torts.
It is for the above reasons that government felt the need to
specially protect its officers and departments against tortious actions outside
three months, by which time it might be impossible for it to secure witnesses
or for its officials to secure witnesses and thereby be unjustly made to bear
the brunt of actions that it cannot be reasonably expected to have evidence to
defend after a short expiration of time. And we should not forget that tort
actions are sustainable against the agents alone notwithstanding the availability
of the principal or knowledge that the agent acted for a principal – Ifeanyi
Chukwu (Osondu) Company Limited v. Soleh Boneh (Nigeria) Limited (2000)
LPELR-1432 (SC) 16, B-F and Aniocha North Local Government Council & Ors v.
Eze (2016) LPELR-42016 (CA) 19-22, B-C. See also Cotecna International Limited
v. Churchgate Nigeria Limited & Anor (2010) LPELR-897 (SC) 18-19, B. This is
perhaps the cause of the title: Public
Officers [Protection] Law, which essentially seeks to protect these
officers against personal liabilities for a stale claim outside three months
that they might find it difficult to secure witnesses to defend.
For example, if in the construction of public road, the
house of a person is severely damaged by vibration from the work or accidentally
by a heavy truck used in the construction, it is unlikely that the injured
owner would wait for too long before approaching the courts because, the nature
of the scenarios dictate to persons of average intelligence that they are
matters of extreme urgency. This is not the case in contracts often entered
into by people who have had long close business relationships, besides the fact
that, evidence necessary to prove breach of terms of contracts naturally last
longer because, they are often embedded in documents and occurred most often
between people with long term close relationships, who could always be fished
out easily. Besides, apart from the parties to the contracts, third parties
often witnessed the executions of these contracts by directly affixing their
signatures alongside the solicitors that prepared the agreements. All these
people are compellable witnesses. To a large extent, all these are applicable
to labour/employment contracts, which are most often embodied in documents. And
all these are not applicable to torts, which often happened in a jiffy and
often amongst total strangers. Thus, it is clear that witnesses and evidence in
contracts naturally last longer than in torts and are naturally easy to
assemble thus, demanding that litigations on contracts have longer limitation
period.
It is necessary to note too that, where a limitation law has
caught a tortious action, everything is not lost to the victim because; most
tortious injuries are covered by insurance policies and social security
benefits. Thus, a victim of tortious injury has alternatives to court actions. Economic-wise,
this further justifies the reasonableness of attaching short limitation periods
to tortious actions, as in the POPA
and S. 59(1) of the NPSA, which give
3 and 12 months respectively, as it is reasonable to assume the victims of
tortious injuries must have taken the alternative routes to seek redresses if
no court actions were filed timeously. However, when it comes to breach of
contracts, insurance policies and social security benefits do not cover such
injuries arising from breaches of contracts. Once the cause of action in breach
of contract is statute-barred, that is the end. There is no alternative. This
perhaps further explains why contractual breaches are not in the contemplation
of the POPA-like statutes and needs
longer limitation periods as in the federal Limitation
Act and the Actions Law of Enugu
State and such like-nature statutes that specifically provide for longer
limitation periods [6 years] for actions in contracts. But upon the whole, the
most important thing is that, in whatever way one looks at it, the POPA and the like statutes are just not
applicable to actions on breaches of contracts.
And often too, negotiations take place for amicable
settlements to be reached between long-term business partners and, these cannot
definitely be expected to fructify within the three-month grace contained in
the POPA. Rarely would you ever find
a substantial contract without provisions for one or the ADR mechanisms for amicable or out-of-court settlement in cases of
disputes. And it is only when these are exhausted without success that these
people approach courts; and these take time. To insist that the POPA applies to contracts would stifle
contractual transactions in Nigeria and make the nation a pariah in the comity
of nations, when no other nation has that type of clearly fraudulent
inequitable limitation law for contracts. This would definitely drive businesses
and investments away from Nigeria along with stifling the mobility of labour in
Nigeria. Clearly, the POPA is not
meant to apply to contracts and does not apply to contracts. The limitations
laws that specifically provide for contracts and which all the states of the
federation and the FGN have, are the
applicable limitation laws to contracts in Nigeria, with the least grace period
being five years, which is reasonable in the circumstances of contracts. The Supreme Court specifically pointed this
out in CIL’s case. It is similar to
what is obtainable around the world. The Supreme
Court clearly underpins this too in
the locus classicus NPA’s case.
It would be seen that the public duties assigned to public
officers under S. 2(a) of the POPA
are administrative or ministerial in nature and directly involved the use of
discretion or, at the least, ministerial. Contractual agreements have no room
for discretion at large outside the terms of the contract and no obligation is
fixed by law to be performed but only by the duly executed contracts amongst
parties. No one in a contract has discretion not expressly or impliedly granted
him in the contract. It is because the Law
of Contract does not provide for situations where there were no prior
agreements of parties in dispute and, injuries arising from wrong exercises of
discretions or wrong performances of duties fixed by law that, the Law of Torts arose to fill the vacuum
that would have existed. So, in contracts, you talk of rights and not
discretions [omissions or defaults, actions or inactions]. Where the issues of
discretion are involved and, such discretions are rightly or wrongly exercised
and they lead to injuries; you can only talk about tortious liabilities and not
breaches of contracts. S. 2(a) of the POPA
gave public officers discretionary powers to act one way or the other in the
execution of public duties and protects them against suits arising from their
acts and omissions or negligence in the courses of executing these public
duties, once the suits are filed outside three months.
From this, it could be seen that, the injuries envisaged,
which did not relate to any prior contracts between the victims and the public
officer-tortfeasors, and for which protection was granted, were not
contractual, but tortious, that could be compensated in damages. So, the POPA could not have governed and did not
actually govern breaches of contractual obligations fixed by the parties
themselves, but torts arising from intentional or negligent exercise of powers in
the courses of executing public duties fixed by law and the duties of cares
also fixed by law. Nothing is fixed by law in contracts but consensually by the
people themselves. There is no duty of care fixed by law for the parties to contracts
to obligatorily observe in the performance of contracts but only duties fixed
consensually by the parties themselves. So, issue of negligence and omissions
are not germane in contracts so far the injured party cannot point to a term of
the contract breached. It is breach of terms that is germane in contracts.
It is therefore clearly preposterous for a party to a
contractual agreement, be it government/public department or its agent, who has
executed the agreement and thus, agreed to be bound by it, to turn round to
rely on something outside the contemplation of the contracting parties to bar a
suit on its/his breach of the agreement. Throughout the whole ambit of S. 2(a)
of the POPA, it did not talk at all
about any agreement between parties: the victims and the public
officer-tortfeasors. While the limitation laws – see the federal Limitation Act and Actions Law of Enugu State – on contractual breaches, are in the
contemplation of the parties to contracts because, these statutes specifically
mentioned the limitation times for actions based on contractual breaches,
saying, after six years, actions on simple contracts would be barred, the
limitation time in the POPA cannot be
said to be in the contemplation of the parties because, the POPA did not talk at all about contracts
but about liabilities arising from breach of duty of care to the public.
Thus, the time bars in the federal Limitation Act and the Actions
Law of Enugu State are logically
deemed to be in the contemplation of contracting parties while contracting because;
ignorance of the law is not a defence but the law does not command
impossibility – Ebe v. COP (2008) LPELR-984 (SC) 10, B-E and,
Nigeria Social Insurance Trust Fund v. Iyen & Ors (2014) LPELR-22438 (CA)
35-36, F-A – so, the POPA cannot be deemed to be in the
contemplation of contracting parties. To insist on three-month limitation
period for causes of action on breaches of contracts is to command the
impossible, as I have explained earlier. The POPA is therefore, completely off the radar of contracts, for, it
neither mentioned nor contemplated contracts and, it would thus be totally
unfair [S. 254C-(1)(f) of the Constitution
and unconscionable – SS -13&15 of the NICA]
and inequitable under common law, though statutes normally supersede common law
but would not supersede where there is ambiguity in the statute relating to
rights of contracting parties with public bodies, especially in labour
relations, who had their minds on another limitation law that specifically deal
with contracts.
Equity would not allow the hapless parties to be ambushed by
the POPA, which is totally outside
their contemplations and did not actually deal with contracts. This has the
sour taste of chicanery and encouragement of fraud. And equity would not allow
a statute to be used as an instrument of fraud – Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 (SC) 505, A. To hold
otherwise would amount to calling on them to fathom into their contracts
impossible knowledge of the POPA and
the law does not allow that – AG of Lagos State v. Keita (2016) LPELR-40163
(CA) 19-22, E-A, especially p. 21-22, E-G. The
law does not command the impossible by expecting you to comply with what you
could not be rationally expected to be aware of. You don not read into statutes
what is not there; and whenever the provision of an expropriating statute is ambiguous;
it must be construed narrowly to protect the vested proprietary rights of the people
- FCDA v. Sule (1994) LPELR-1263 (SC)
30-32, E-A. The provisions of the POPA
are at strained interpretation ambiguously applicable to contracts but clearly
unambiguously applicable to torts. They must therefore be narrowly construed to
apply only to torts, more so, when there are other limitation laws that
directly mention the limitation times for actions on contracts.
Otherwise, it would produce the unsavoury potential to
stifle contractual relations with governments and public bodies in Nigeria and the
governments would be the greater loser at the end, as it will drive away people
and corporations from entering into contracts with Nigerian governments and
also drive away foreign investments from Nigeria, if the POPA continues to apply by ambush to commercial and employment
contracts between public bodies and the contracting partners with just the
three-month grace period that is not even sufficient to carry on negotiation
between the parties, as is wont in contractual disputes around the world,
contrary to what obtains around the world, where the equivalences of the POPA do not apply to contracts, as the Supreme Court revealed in NPA’s case with respect to England, but
rather, the equivalences of the federal Limitation
Act and Actions Law of Enugu State,
that deal specifically with contracts and with longer limitation period, apply,
as confirmed by the Supreme Court in CIL’s case.
The Supreme Court
actually clarified the above observations in NPA’s case when it said, in England, the POPA’s equivalences never applied to contracts and accordingly,
narrowed the ambit of the Ports Act,
which was impari materia with the POPA, to other civil litigations outside
contracts, which are torts, but unfortunately failed to say so in very clear
language by specifically mentioning the technical word ‘torts’. But it is clear
that the Supreme Court clearly said
in the NPA’s case that, the Ports Act did not apply to contracts;
which by inference, meant it applied to only torts. Where there are two
possible interpretations of a statute, it means the statute is ambiguous, the interpretation
that conduces to the avoidance of absurdity and eschewed injustice is preferred
by courts because, it tallies with equity, even if it means narrow construction
– Omoijahe v. Omoru & Ors (1999)
LPELR-2645 (SC) 9-10, E-B and Kalu
v. Odili & Ors (1992) LPELR-1653 (SC) 85, B-D. And narrow construction
is dictated in expropriating statutes – FCDA
v. Sule [supra], which the POPA
is. A close study of all the Nigerian specific limitation laws on contracts
showed that, they bind both government and private contracting individuals
alike and they did not provide for actions, inactions, omissions or defaults
but simply for actions founded on contracts. In a nutshell, they asserted the
equality of contracting parties.
It follows that both the federal Limitation Act and the state limitation laws specifically meant for
contracts and that actually mentioned contracts, and the POPA, with at best, ambiguous general provisions that did not
mention contracts but all the ingredients of torts, cannot at the same time
apply to the same cause of action. This shows clearly that the POPA is strictly meant for an entirely
different scenario from contracts. And the Supreme
Court rightly endorsed this view in CIL’s
case, when it held that not the POPA
or any impari materia statute, but
the Ekiti State Limitation Law, that applies
to the limitation of actions brought on breach of contracts in Ekiti State.
The federal Limitation
Act and state limitation laws, not the POPA,
specifically provide for the time limits to bring actions relating to breaches
of contracts, and thus, regulate suits bordering on breaches of contracts in
line with the age-long principle of law that, a special statute prevails over a
general statute on the same subject matter: that is, if by a strained
interpretation, it is imagined that the POPA
could apply to contracts – Ardo v. Nyako
& Ors (2014) LPELR-22878 (SC) 47, A-D. By this principle of
interpretation, it follows that, in whatever way one looks at it, the POPA is totally inapplicable to
contracts. And I so hold. To this extent, since the federal and state
limitation laws specifically provide for limitation times in suits filed on contracts,
they are special in that respect and must govern the limitation times to bring
actions bordering on breaches of contracts, to the exclusion of the POPA, which did not talk of contracts at
all. And I so hold. The specific mention of one thing is the exclusion of that which
was not mentioned – FRN v. Osahon &
Ors (2006) LPELR-3174 (SC) 80, B-D. At no place did the POPA mention contracts. For example, S.
7(a) & (b) of the Limitation Act,
1966, CAP. 522, Volume 3, Laws of the
Federation of Nigeria (Abuja), which is applicable at the federal level,
provides thus:
“The
following actions shall not be brought after the expiration of six years from
the date the cause of action accrued:
(a) actions
founded on simple contract;
(b) actions
founded on quasi-contract…”
In like manner, S. 20(1) of the Actions Law of Enugu State also provides that, actions based on
simple contracts shall not be brought after the expiration of 6 years. S.
15(1)&(2) of the federal Limitation
Act also provides for 20 and 12 years respectively for public authorities
and private individuals on actions relating to lands; land law, being a special
branch of the law of contract: ditto the various states’ limitation laws. The
relevant sections of both statutes specifically dealt with contracts [simple
and special] and not negligence, omissions, actions, inactions or default,
while the POPA specifically dealt
with breach of duties fixed by law arising from negligent acts or omissions
[torts] of public officers burdened with the performance of public duties. Thus,
it is clear that the POPA applies
strictly to tortious liabilities and not breaches of contracts. Brett, M.R. in Midland Railway Company v. The Local Board
for the District of Withington (1823) 11 QB 788 at 794, quoted with
approval in NPA’s case [supra] lends
much credence to this view. That the POPA
applies to torts alone and not contracts is obvious from its phraseology. Its
S. 2(a) that is in issue, uses the phrase “act, neglect or default” in the
execution of law, public duty or authority. And tort is inclusive of
intentional acts, intentional inaction [default] and accidental acts
[negligence] – see MTN’s case [supra].
From this, it is clear that intentional acts and omissions
and negligence [all torts] are the governing words. The important things are
the injuries caused and, the principle involved is that of liability in torts
and not breach of contract. It does not matter that the tort arose from
contract, once it does not require proof of breach of terms of a contract, but
only proof of breach of duty fixed by law, it remains tort – see MTN’s case. You prove either
intentional or negligent acts and omissions leading to breach of duties of care
imposed by law resulting in injuries to succeed in torts and not, breach of
terms of contract, while:
“Negligence is the failure to take
reasonable care where there is a duty, and it is attributable to a person whose
failure to take reasonable care has resulted in damage to another…” – see Chagaury & Anor v. Yakubu (2005)
LPELR-5927 (CA) 21-22, C-D.
S. 2(a) of the POPA
is a sort of statutory exception to the law that the government could not be
sued for torts – see Imona-Russel v.
Niger Construction Ltd (1987) LPELR-1501 (SC) 19-21, A-D – and limits the
right to sue to three months of the happening of the cause of action and covers
both government officers and public bodies, except with regards to the immunity
granted in S. 308 of the Constitution
– see Ibrahim v. JSC [supra] 32-34, E-B to the effect that,
both public persons and public bodies are covered by the POPA. This is apart from the decision of the Supreme Court in Bakare v.
Attorney General of the Federation [AGF]
(1990) LPELR-707 (SC) 13-21, D; 14-15, E-D; 20-21, B-D; and 27, B-E, which finally put paid to the Petition of Rights and opened the gate
clearly for tortious actions against government and the public official agents in
Nigeria.
Because of the fact that none of the previous authorities
ever examined the angle of the POPA
being strictly applicable to only torts and, not contracts, this extant case,
where this issue is fully examined for the first time, is distinguishable from
all the previous cases, which held that, the POPA was applicable to contracts and, the impari materia Aba’s case,
and is accordingly hereby distinguished. Thus, the cases holding that the POPA is applicable to contracts are,
with utmost respect, not authorities for the present question of the applicability
of the POPA to contracts but Obasanjo’s case and all the cases in
the school of thought that the POPA
is not applicable to contracts, including contracts of employment or service
are the authorities for the objection raised on S. 2(a) of the POPA in the instant case and I so hold.
And good enough, Obasanjo’s case is
actually the latest that is directly on point in the array of irreconcilable conflicting
decisions from the Supreme Court on
this vexed issue, which I know of.
And I think the Supreme
Court’s authority that is directly on point must be preferred to the impari materia Supreme Court’s authority in Aba’s
case that is contrary. But the legal conundrum is that the impari materia authority relied squarely
on two Supreme Court’s authorities
that were directly on point and, decided that the POPA was applicable to contracts! Given all the long explanations I
have made to this juncture, in whatever way one looks at it, Obasanjo’s case holds the forte. So,
the POPA is not applicable to
contracts, including contracts of service; and likewise any impari materia statutes, like the Ports Act and the NPSA, and I so hold. I only hope I have sufficiently justified the
reasons for siding with the school of thought that the POPA is inapplicable to contracts, including contracts of
employment.
Arising from the foregoing, I hold that the POPA is inapplicable to the cause of
action herein, which is based on allegation of wrongful dismissal or rather, breach
of contract of employment. In line with the Court
of Appeal’s decision in Ngun’s case
and Supreme Court’s decision in NEPA’s case, Osakwe’s v. FCE and Chime v. Elikwu I, with
the utmost respect, prefer the long line of Supreme
Court’s decisions on point: NPA’s
case, RMAFC’s case, CIL’s case and lastly, Obasanjo’s case, which thoroughly
reviewed both sides of the divides and held that the POPA was inapplicable to contracts, as the authority for the decision herein; as against Ibrahim v. JSC; Yare’s case; Idachaba’s case
and, Aba’s case [impari materia], which, with utmost
respect, did not review the previous contrary Supreme Court’s authorities on the same issue but held that the POPA was applicable to contracts,
including contracts of employment.
Arising from the foregoing, the Supreme Court was undoubtedly right when it held in FGN v. Zebra Energy Ltd (2002) 18 NWLR (Pt.
798) 162 at 196 that: “The Public
Officers Protection Act was not intended by the legislature to apply to
contract.” I therefore hold that the POPA
is inapplicable to contracts of employment and contracts generally and, it is
accordingly not applicable to the case at hand, which is an action based
entirely on contractual relations, which employment relations are. The
objection on the applicability of S. 2(a) of the POPA therefore lacks merits and, it is accordingly dismissed.
Notwithstanding the dismissal of the objection, I wish, as
an aside, to look at one or two more pertinent issues still connected with the
question of the applicability of the POPA
to contracts. The learned defence counsel raised an authority, which he said
decided that, once the issue of S. 2(a) of the POPA is raised, a court cannot examine the issue of malice,
illegality, abuse of office and the like, until it has first determined the
applicability of the POPA. This
argument is self-defeating and, with utmost respect, demonstrates a clear lack
of the knowledge of the meaning of exception. Exception applies within the
parameters of the applicability of a rule and makes the rule inapplicable where
it normally ought to have applied. If, once the question of S. 2(a) of the POPA is raised, it must be decided in limine because it raised jurisdictional issue which must always be decided
first despite the pleadings of malice, abuse of office and illegality then, it
means such issues do not constitute exceptions and that, the POPA has no exception but is of absolute
blanket applicability, once the three-month grace is exceeded.
Distinction is made between substantive and procedural
questions of jurisdiction and, the POPA
falls into question of procedural jurisdiction – Atiyaye v. Perm. Sec., Borno State (1990) 1 NWLR (Pt. 129) 728 at 739,
G where the Court of Appeal clearly
held that the POPA: “is…procedural…”.
See also AG Kwara State & Anor v.
Adeyemo & Ors (2016) LPELR-41147 (SC) 14-15, E-C; Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122 at 133, D; 137, C-D
and, Orders 5 & 30, R. 8(2) of the NIC
Rules. The POPA does not affect NIC’s substantive jurisdiction conferred
by S. 254C of the Constitution but
only the procedure to bring a suit against public officers. So, decision on
issues of procedural jurisdiction can be deferred depending on the nature of
evidence required to determine it, particularly in this instance, where it is
being argued for the first time in the defendant’s FWA. It is necessary to point out too that all limitation laws are
offshoots of equity and thus, waivable when not raised timeously before hearing
the merits of the case because; equity only aids the vigilant. But I have taken
note of Aba’s case, which appears to
hold that S. 59(1) of the NPSA, which
is impari materia with S. 2(a) of the
POPA, is not waivable. But it is
important to note that the other issues of the exceptions to the POPA and whether the POPA was applicable to contracts, were
not discussed in relation to the S. 59(1) of the NPSA, considered in Aba’s
case.
As it would be seen now, the learned defence counsel’s view that
once the issue of the POPA is raised,
it must be decided first, with the utmost respect to the senior lawyer, is
grossly incorrect. In Hassan v. Aliyu
(2010) LPELR – 1357 [SC] 84, A–B, the Supreme
Court reiterated the exceptions to POPA
in the following words:
“A public officer can
be sued outside the limitation period of
three months, if at all times material to the commission of the act
complained of; he was acting outside the colour or scope of his office or
outside his statutory or constitutional duty. Where he acted within the colour
or scope of his office, he can only lose protection of the limitation laws if
he is sued within three months.”
See also the pertinent cases: A.G Rivers State v. A.G Bayelsa State (2012) LPELR–9336 [SC] 30; Moyosore
v. Gov., Kwara State (2012) 5 NWLR (Pt. 1293) 242 at 282–283, D–B, 284-285, G–A,
285, D and, Agbatiogun v. NNPC
(2008) 13 N.L.L.R (Pt. 35) 236 at 257, B–H, which all confirmed the ratio
established above and, Moyosore’s case
specifically held that, where allegations of illegality, malice and abuse of
office are raised, the issue of the applicability of the POPA cannot be decided in limine
but must be decided alongside the substantive matter based on the evidence
adduced at trial. And it is only when the court comes to the conclusion that
malice and the like are not proved that it would now consider the issue of the
applicability of the POPA. So, we can
see that the arguments of the learned defence counsel on this count for what
they were: they were totally misconceived and, are accordingly dismissed. I
move to another aside.
I also dismiss the argument that the claim for unlawful dismissal
brought in by application for amendment could only take effect from the date
the application was granted and not the date it was filed. If amendment has
retroactive effect, the amendment bringing in the new cause of action, which
arose in the cause of the original action, must date back to, at least, the
date the application for amendment was filed and not later, except if the cause
of action had expired before the filing of the application for the amendment to
bring it in. And before I round up on this issue, I wish to state that, I gave
my decision allowing the amendment and based it partly on S. 14 of the National Industrial Court Act [NICA],
which enjoins the NIC to avoid
multiplicity of actions and other cogent reasons, and thereby became functus officio. Any question regarding
the amendment could only be raised by way of appeal. The learned defence counsel
did not file an appeal on this ruling since May
11, 2021 when the amendment was granted but is bringing in the issue of the POPA to attack the Court’s order duly
made within jurisdiction. The era of fencing game in litigation is gone. The
second objection therefore amounts to abuse of process. And it is accordingly
dismissed. At the end, the claimant wins issue 1 while the defendants/objectors
lost it. There being no further clog on the Court’s jurisdiction, the case
proceeds to examination of issue 2, which is the substantive merit of the case.
There I go.
Under
issue 2,
which is whether the claimant proved his case, what I need to clarify first is what
the case before the Court is, based on the uncontested and proved facts in the
case. The case before the court is unlawful dismissal. Only the reasons for the
dismissal are contested. The defendants contested the reasons that, the
dismissal is not for the reasons the claimant pleaded, but for other reasons
unconnected with the reasons the claimant pleaded in her ASF. For whatever reason the claimant was dismissed, whether
pleaded by the claimant or not, the law is settled that, where an employer gave
a reason for dismissal, the reason must be plausible and justified to sustain
the dismissal - Shell Petroleum Dev. Co.
Ltd v. Chief Victor Sunday Olarewaju (2008) LPELR – 3046 (SC) and, N.E.P.A. V. Eboigbe (2009) 8 NWLR (Pt. 1142) 162, D–G:
“…Where an employer states a reason for the termination,
such reason must be plausible to justify such termination of appointment of the
employee.”
The important thing is that the claimant was dismissed with
reasons, which must be justified. For one, the defendants agreed they dismissed
the claimant. Let us now look at the reasons the defendants agreed for which
they dismissed the claimant and, whether they were plausible and justified. The
defendants agreed they dismissed the claimant for abscondment and writing a petition
containing defamatory allegations against the Provost. The uncontested facts are
that: the claimant was absent in December 2020 or January 2021; the defendants
stopped paying the claimant’s salary December 2020 and; the defendants were in
receipt of the claimant’s notice of withdrawal of her service since February 2,
2021. The defendants replied the notice February 26, 2021. The defendants were
in receipt of the claimant’s bank draft for the payment in lieu of notice since
March 2, 2021. The claimant was dismissed more than six months later on September
13, 2021.
Now the contest at one hand is that the claimant did not pay
three-month salaries in lieu of notice and, the claimant said she paid by bank draft
and tendered Exhibit C6. But the defendants said Exhibit C6 could not prove the
payment and that; the said bank draft was returned to the claimant’s office in
the 1st defendant. Did the claimant pay three-month salaries in lieu
of notice? That is the most basic question to answer now. This does not need
much trouble: you just check the date on the bank draft and check for the
corresponding date on Statement of
Account tendered. I found that she paid and that, the defendants actually
cashed it. The claimant tendered the letter by which she forwarded the bank draft
together with photocopy of the said bank draft [Exhibit C4] and, there is clear
evidence of receipt of the bank draft by the defendants on it. Anyway, the
defendants positively admitted the receipt but demurred that, the bank draft
was later returned to the claimant’s former office. Note that the defendants
did not tender the dispatch book by which the bank draft was received into the
claimant’s former office. Note too that, the DW1 did not say he was the one who
personally took the said bank draft to the claimant’s former office and also, did
not mention the name of the person who did and who received it therein. His
evidence therefore has no probative value and lacks the necessary weight – Kajo v. Benue Cement Company Plc (2013)
LPELR-20788 (CA) 21, E-G. It is accordingly rejected.
The claimant also tendered the Statement of Account [Exhibit C6] to show that the bank draft was
cashed and stated the date the bank draft was issued – paras 8 of the ASF and 9 of the RWSO and also Exhibit C4. At the fifth page of the Statement of Account in Exhibit C6, I found
the entry with the following details: Date: 02-Mar-2021; Draft No. 10341861;
Description: MC NO 143032 IFO FEDERAL COLLEGE OF EDU EHA-AMUFU; Value Date:
02-Mar-2021; Deposit: 0.00; Withdrawal: 1,125,924.08; Balance: 117,187.68cr.
The defendants did not dispute the amount stated on the bank draft as not
representing the claimant’s three-month salaries. It is clear too that, the 1st
defendant cashed the bank draft. The defendants did not tender their Statement of Accounts for the period in
issue to show that no such money entered the account.
These facts, as revealed earlier above, are the pertinent
facts for the determination of whether the reasons given for the claimant’s
dismissal were plausible. All other facts, issues and arguments, are
irrelevances arising from the nature of adversarial litigations, which
unwittingly promotes beclouding strategies at the expense of the truth. But a
court must know the relevant facts that would not waste precious judicial time.
I cannot therefore find the rationale for all the beclouding arguments on the
claimant’s past conducts. Let me now take up the defendants further on the
arguments that they did not cash the bank draft. The defendants said, through
DW1 under XX that, the bank draft was
sent back to the claimant in the medical centre, that is, her former office, the
office that they claimed, she had absconded from since December 2020 or January
2021! How reasonable is this posture!
The same defendants knew how to write petitions to the
claimant’s new employer that they had dismissed her and, urging them to also
dismiss her – see Exhibits C16 & C17, but preferred to send the purportedly
rejected bank draft purportedly to the claimant’s former office, which they
knew, she had left since December 2020 or January 2021 till date! It is
important to note that the defendants pleaded December 2020 [para 8 of the ASD] as the date the claimant absconded
but in the dismissal letter [Exhibit C7], they put January 2021! And come to
think of it, the claimant gave a residential address, box address, and email address
in which she could be reached on the covering letter by which she sent in the bank
draft [Exhibit C4]: yet, the defendants preferred to send the purportedly
rejected bank draft purportedly to the claimant’s former office in the 1st
defendant, where they knew she had left for good!
What the defendants did not know is that immediately the
claimant adduced the evidence of the issuance of the bank draft on them, and
the defendants admitted the receipt, which is apparent on Exhibit C4 and the
photocopy of the bank draft attached thereto, even without tendering Exhibit C6
[the Statement of Account], the
claimant had satisfied the law with regard to the bank draft having been
cashed, unless the defendants could prove with cogent evidence that the bank
draft was duly returned to the claimant un-cashed. The logical presumption is
that, if you accept a bank draft, which is higher than an ordinary cheque,
without returning it promptly, you have cashed it, unless you can otherwise
prove with cogent evidence – UBA v. Ibhafidon
(1984) 1 NWLR (Pt. 318) 90; Lagricom v. UBN & Ors (1986) 4 NWLR (Pt. 441)
185 and; UBA v. Nwoye (1996) 3 NWLR (Pt. 435). This is because, immediately
a banker’s draft is issued, the money is taken off the owner’s account i.e.,
the account is immediately debited, and the money is kept away in the bank’s
account for the creditor so that, the original owner no longer has access to
the money. That is why it is called banker’s cheque. The defendants, who
claimed that the claimant had taken another job and absconded from her duty post
since December 2020 or January 2021 without proper withdrawal of service, cannot
rationally say they sent the supposedly rejected bank draft to the claimant’s former
office, when they knew, for all purposes, she had left their service.
And besides, the defendants knew that this issue was at
stake in the trial and yet, did not pick up the purported bank draft they
claimed they sent to the claimant in her former office or bring forth evidence
of the person who personally handed it over to the claimant in that office or
elsewhere, to prove that they did not cash it. He who asserts the positive is
duty bound to prove; especially where the alleged evidence is in his exclusive
possession; as in the instant case - Falke
v. Bilari Local Government Council & Ors (2016) LPELR-40772 (CA) 35-36, E-C.
The defendants adduced the positive evidence that they sent the bank draft to
the claimant in her former office and the claimant denied receipt of same, and
proved the defendants had actually cashed the bank draft. There is no denying
the facts that the office is under the defendants’ control and so, its contents
are under the defendants’ custody. The defendants must therefore produce the evidence
of the dispatch of the bank draft and of the receipt same by the claimant,
since they owned up they sent it to an office they claimed, she had absconded
from, even though, they knew she gave her residential address, box address and
email address in the covering letter by which she gave them the bank draft,
demonstrating clearly that, any communication to her on the bank draft, must
come through the given addresses! Maybe, the defendants did not know the nature
of bank draft. Had they known, they would not have attempted the sort fraud
they intended to perpetrate in the instant suit.
A court of law is not bound to believe utterly unreasonable
and preposterous evidence that is totally against the nature of human conducts
and logic simply because it was given under oath, even if unchallenged - Anzaku v. Gov., Nassarawa State (2005) 5
NWLR (Pt. 919) 448 at 502, C–F
and Dibiamaka & Ors. v. Osakwe &
Ors. (1989) LPELR–940 (SC) 16, D–E.
Probability is the basis of cogency by which the truth of a piece of evidence
is tested and, the instrument probability uses, is logic. This evidence is
totally improbable and lacks logic. The defendants’ evidence on this score is
utterly unreasonable and weird and lacked all traits of cogency.
The defendants who asserted positively that they sent the
bank draft to the claimant’s former office and who admitted the claimant
absconded even before then, and which office is under their custody, is duty
bound to produce evidence of the person who collected it there or who gave it
to the claimant or how they gave the claimant or, they must bring forth the
bank draft as undelivered, to prove they did not cash it. The claimant pleaded copiously
that she had left the defendants’ service, which meant, she no longer had
access to the office and could not be expected to bring forth the alleged bank draft
allegedly sent to an office she had left. And the defendants admitted she had
secured another job; meaning, they confirmed that, truly she had left their
employment. Even if it is true, she left without complying with procedure; the
important thing is that they knew she had left. They could therefore not be
reasonable in allegedly sending the bank draft to an office they knew she had
left.
They must therefore be adjudged to be either unreasonable to
claim that they sent a rejected bank draft to her in an office they said she
had absconded from or they must be adjudged as just lying. Those are the two
logical alternatives and both are unpalatable to their defence. From the foregoing,
having failed to produce the bank draft, and the claimant having shown by
cogent evidence they had cashed the bank draft, there is no other rational
conclusion than that, the defendants had truly cashed the bank draft. I
accordingly hold that the defendants have cashed the bank draft. And I found
that the defendants were dishonest about this.
In Exhibit C2, the reply to the withdrawal notice, the
defendants stated thus, in para 2 thereof: “While
acknowledging your unfettered right to withdraw your service from the services
of the college…” This clearly indicates that the defendants conceded that
the claimant had absolute right to withdraw her services from the 1st
defendant and that; the withdrawal took effect from the moment they received
the notice. When the claimant issued her withdrawal letter, the defendants, who
are claiming the claimant absconded since December 2020 or January 2021 did not
raise any issue about abscondment but instead, stated clearly in their letter
of acknowledgment of the withdrawal notice that the claimant had unfettered
right to withdraw her services, provided she paid money in lieu of notice,
which she paid and the defendants cashed immediately, only to turn round 6
months later, to dismiss the claimant!
If the Provost felt the claimant made defamatory allegations
against her in a petition, she should know better to approach the proper court
to litigate the issue. For all purposes, the claimant had exited their service
and they clearly admitted this. Any other rigmarole about the conducts of the
claimant before she withdrew her service or the petition she wrote against the
Provost and repeated in the same withdrawal notice or elsewhere, is totally
irrelevant at the moment she withdrew her service, as the withdrawal takes
immediate effect – see Art 2(1) of the ILO
C029: Forced Labour Convention, which says:
“For the purposes of this Convention the
term forced or compulsory labour shall mean all work or service which is
exacted from any person under the menace
of any penalty and for which the said worker has not offered himself
voluntarily.”
There is also the ILO C105: Abolition of Forced Labour Convention.
Its Art 1(c) says:
“Each member of the International
Labour Organisation which ratifies this Convention undertakes to suppress and
not to make any form of forced or compulsory labour—
(a)
…
(b)
…
(c)
as a means of labour discipline…”
Nigeria ratified both ILO
C29 and ILO C105 October 17, 1960
and, by virtue of S. 254C-(2) of the Constitution,
they are directly enforceable in Nigeria. So, the effect is that, from the
moment the claimant served its notice of withdrawal and followed it up with
payment in lieu of notice, and it was cashed by the defendants, the claimant’s had
lawfully left the defendants’ employment – Yesufu
v. Governor of Edo State (2001) 13 NWLR (Pt. 731) 517 SC; Adeyemi v. Abegunde
(2004) 15 NWLR (Pt. 895) 1 CA and, the NICN/LA/321/2014:
Felix v. Nigerian Institute of Management [delivered July 4, 2017]. It
would therefore be wrong to continue to insist that the claimant was still in
their employment when they had cashed the payment in lieu of notice. Even where
they did not cash the payment in lieu of notice, the law says the claimant had
left their service and therefore, no longer available for dismissal. They could
only sue for damages with regard to the failure to pay in lieu of notice. But
in this case, the claimant duly paid in lieu and the defendants cashed it. The
defendants have argued about the claimant getting another employment without
first lawfully withdrawing her service from the defendants.
First, it is important to note that the defendants impliedly
admitted they stopped paying the claimant December 2020 – see para 24 of both the
RASD and the claimant’s second WSO. The claimant was not cross-examined
on this. It is deemed admitted. For this reason, I cannot see anything wrong
with what the claimant did by taking another employment that very following
January for which she was not paid and, for giving the notice of withdrawal
February 2, 2021 and the payment in lieu of notice March 2, 2021. After all,
she was not being paid for the period and, the law envisages normal employment
relationship with regard to giving of notice of withdrawal and payment of
salaries in lieu of the notice and, not abnormal employment relationship where
the defendants themselves impliedly admitted they had stopped paying the
claimant since December 2020. Anyway, since the defendants did not deny
stopping the claimant’s salary since December 2020, they did not tender any
evidence that she was so paid, the claimant must be adjudged to have uttered
the truth on that score.
In this wise, I agree with the learned claimant’s counsel
that, if there was any non-compliance with the rules of the Staff Handbook, from the moment the
defendants cashed the bank draft for payment in lieu of notice, they could no
longer talk about any non-compliance with the rules of withdrawal of service,
aside the fact that, the so-called rule is even illegal, as I have shown in the
relevant ILO C29&C105 already
cited. There is no rule in modern employment relations that can force an employee,
who has given salaries in lieu of notice, to continue to work against her will.
That would amount to forced-labour: an instance of slavery, which the ILO forbids. Disciplinary proceedings
are no bar to withdrawal of service. And the defendants acknowledged this
position of law by stating clearly in their reply acknowledging the receipt of
the withdrawal notice that, the claimant had an unfettered right to withdraw
her service, so far payment in lieu of notice was made, which the claimant duly
paid in the instant case and the defendants duly cashed. So far the claimant
had not been dismissed at the point she tendered her letter of withdrawal, the
employer can no longer talk about any breach of the Staff Handbook or any disciplinary actions the moment they accepted
the withdrawal notice and cashed the payment in lieu of notice.
It would amount to blowing hot and cold, a situation
forbidden by equity and SS. 254C-(1)(f) of the Constitution and 13&15 of the NICA – SCOA Nigeria Plc v.
TAAN & Ors (2018) LPELR-44545 (CA) 56, A-E for the defendants to
dismiss the claimant six months later and continue to argue that she did not
withdraw her service properly. The learned defence counsel’s argument that the
claimant notice of withdrawal was not withdrawal, but application to withdraw,
subject to approval and that, it meant, the claimant remained in the defendants’
employment but absconded, which DW maintained under XX, is totally misconceived and flew in the face of obvious facts,
apart from the other reasons I have given earlier. The title of the said letter
[Exhibit C1] is clearly written as Withdrawal
of Service while its para 4 stated clearly that:
“In view of your usual maxim that ‘dead
men don’t talk’, and in consideration of the above schemes which were aimed at
tightening the noose around my neck for final onslaught, I am constrained to write this letter withdrawing my services from the
College with effect from 1st day of March, 2021 as I find it extremely difficult to
continue to work under the present pervading apprehension of probable risk to
my life. I had requested the bursar to give me the college account number
to pay three (3) months salaries in lieu of notice to fulfill para 15.4 of the
Revised Conditions of Service for Colleges of Education 2015.”
By this para, it is abundantly clear that, notwithstanding
that the withdrawal letter contained some somewhat irrelevances, the intent is clear.
And it is that the claimant withdrew her service for good and, Exhibit C4
written by the defendants in reaction to the Withdrawal of Service, confirmed that the defendants were not
misled as to the fact that the claimant had withdrawn her service for all
purposes. Though, I note that its para 1 says the withdrawal is subject to the
payment of three-month salaries in lieu of notice, which the claimant had paid since
March 2, 2021, some 7 days later by the bank draft in issue. The claimant had
said she was not originally given the account into which to pay, which the DW1
under XX after initial prevarication,
said he was sure the bursar gave her. Apart from lacking probative value
because DW1 did not say how he came to know that the bursar [a third party] gave
the claimant the account number, it was equally speculative because, the DW1
based his assertion on mere conjecture. A court of law has neither jurisdiction
to give weight to a piece of evidence that lacks probative value and also based
on speculations. Courts lack jurisdiction to act on speculation. These pieces
of evidence are accordingly discountenanced.
The claimant is therefore truthful that she was not availed
the account. In any case, the late payment of the salaries in lieu of notice did
not detract from the fact that the claimant withdrew her service and served a
notice of withdrawal and not an application subject to the defendants’ approval,
as argued by the learned defence counsel, but gave a clear unequivocal notice
of the withdrawal of her service. That argument, having been found to have no
factual basis, is accordingly hereby dismissed. And in any case, the defendants
replied that, once the claimant paid three-month salaries in lieu of notice,
her withdrawal was good and she paid. So, what is the fuss about! The learned
defence counsel cannot know better than the defendants, when it comes to the
issue of facts and cannot therefore argue against the hard facts clearly admitted
by the defence.
The learned defence counsel has also argued that the claimant’s
argument about waiver is raising an issue not pleaded but conveniently glossed
over the claimant’s learned counsel’s arguments that issue of waiver could be
raised on the basis of the facts before the court without being pleaded and the
authority cited to that effect. I agree that is the correct position of the
law. It is an issue of pure application of the law to the facts of a case,
which is the court’s duty to do, had the claimant’s learned counsel not done so
– Sahara
Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) as the authority that, raising and deciding
question of law based on the evidence before the Court is not raising an issue and
deciding it suo motu but purely
applying the law to the facts of the case. NIC
has the sacred constitutional duty to consider issues of unfair labour
practices in all its adjudications of labour cases without being prompted by
the parties and their counsel but purely on the basis of the facts before it by
virtue of SS. 254C-(1)(f) of the Constitution
and 13-15 of the NICA. Waiver and
estoppel by conduct are things that could be logically inferred from the
pleaded facts and evidence before the court without the parties actually using
the technical jargons and in this case, they are fully applicable - Bakare v. Lagos State Civil Service
Commission & Anor (1992) LPELR-711 (SC) 103-104, F-A.
When the claimant issued her withdrawal notice, the
defendants, who are claiming now the claimant absconded since December 2020 or January
2021, did not raise any issue about abscondment but instead, stated clearly in
their reply to the withdrawal notice that the claimant had unfettered right to
withdraw her services provided she paid money in lieu of notice, which she paid
through the bank draft, which the defendants cashed and stayed silent for 6
months before they suddenly turned round to dismiss the claimant. It is clear
that the doctrine of estoppel by conduct and waiver estopped them, apart from
all other reasons that I have given in this judgment, from dismissing the
claimant, who was no longer, their staff long after the withdrawal of her
service.
The defendants are therefore estopped from raising any issue
of non-compliance with the Staff Handbook
or the issue of any pending disciplinary proceedings against the claimant, having
waived their rights thereto – S. 169 of the Evidence
Act and Nwankwo v. Oforkansi & Ors (2016)
LPELR-40170 (CA) 20-23, C-E. I therefore
totally agree that any alleged infringements of the Staff Handbook about paying in arrears as against in advance or about
the Staff Handbook not having
provisions for withdrawal with advance payment in lieu of notice, have been
waived by the defendants’ conducts in cashing the very payment they are
complaining about and also in not raising their objections timeously. They are
therefore estopped from raising it for all times. Para 1 of Exhibit C2 actually
says, once the claimant paid the money, she was good to go. So, what is the
learned defence counsel still arguing about breach of the rules, which the defendants/employers
waived gratuitously! It is too late in the day to raise such objections.
In effect, I agree with the learned claimant’s counsel that,
at the point the claimant was dismissed, she was no longer in the defendants’
employment and that; the defendant had, long before then, accepted her
voluntary exit from their services. This is aside the initial holding that the ILO C29 & C105 actually forbid
forced labour as a way of disciplinary procedure and that; the Staff Handbook rule cited by the learned
defence counsel was even illegal, by virtue of these ILO Conventions and SS.
254C-(1)(f)-(h)&(2) of the Constitution
and 13&15 of the NICA. The
purported dismissal after 6 months of the claimant’s withdrawal of her services
without any complaint from the defendants is an afterthought: done in bad
taste.
The defendants who had replied the claimant vide Exhibit C2,
para 4 that: “however, Management has
directed that your letter be processed and you will be communicated in due
course” after having agreed that the claimant had an unfettered right to
withdraw her services only subject to payment of three-month salaries in lieu
of notice, which the claimant paid and they cashed, could not, in good faith,
turn round six months later to serve the claimant with dismissal letter. That
amounts to a classical example of unfair labour practices forbidden by S.
254C-(1)(f)-(h) of the Constitution
and SS. 13&15 of the NICA and,
also amounts to gross violation of the claimant’s contractual and
constitutional right to fair hearing – SS. 36(2)(a) and 254C-(1)(f) of the Constitution. There is no way the
defendants could try the issue of the claimant’s petition against the Provost at
the Council’s plenary without affording her the opportunity to prove the truth
of the allegations. It must be noted that the defendants did not say in the
dismissal letter that they considered the claimant’s answers to any queries, so
the talk about queries and answers are non
sequitur. The proceedings and the report of the Council whereby the
conspiracy was hatched and consummated are therefore null and are accordingly set
aside together with the dismissal letter based on them.
The defendants cannot hide under the canopy of abscondment
to avoid fair hearing in the circumstances of this case, which point to the
fact that the claimant did not abscond but instead, voluntarily withdrew her
services and paid the defendants the three-month salaries in lieu of notice
insisted on. This is entirely different from abscondment. I therefore agree
with the claimant’s learned counsel that the claimant was dismissed for
ulterior motives than stated in the dismissal letter and that; the reasons
given in the dismissal letter were mere smokescreens. As I have found
established that the claimant was dismissed for reasons other than as stated in
the dismissal letter, it follows that malice and abuse of office, as alleged,
were proved against the defendants. So, the exceptions to S. 2(a) of the POPA also applied in the instant case
and make the POPA triple times
inapplicable. I therefore found that the defendants’ reasons for the dismissal
were not plausible and were not justifiable. The claimant was therefore wrongly
dismissed. The claimant consequently wins issue 2 while the defendants lost it.
I move to examine the reliefs claimed to see which the claimant is entitled to.
Issue 3 deals
with the reliefs claimed. Relief (i)
is granted to the extent that the claimant’s dismissal was wrongful. It is a natural
consequence of winning the case. Relief (ii)
is granted in full as claimed in accordance with the finding of the Court that
the defendants did not justify the reasons for the claimant’s dismissal. The
claimant is also justified in her claim in relief (iii). Relief (iii) is
accordingly granted in its entirety except that the phrase “inconsistent with the
public service rules” is removed and replaced with ‘wrongful’. The defendants had lulled the claimant to sleep, making
her to believe that her notice of withdrawal had been accepted in good faith
and that; she would get the confirmation letter to that effect, only for the
defendants to spring a surprise on her by sudden dismissal without fair hearing.
It is therefore correct to say that the defendants’ dismissal of the claimant
was their reply to the notice of withdrawal of her service because; they said
she should await their reply and, they replied her by the dismissal letter! I
grant reliefs (iv) & (v) in their entireties too, as
corollaries to reliefs (i)-(iii) already granted. I now move to
relief (vi), which is about ordering
the defendants to approve the claimant’s application for transfer of service.
I refuse relief (vi)
for the following reasons: the claimant did not plead and prove the conditions
to be met for transfer of service and, where to find these in the Staff Handbook. I think the issue of
transfer of service is mainly applicable to employment clothed with statutory
flavours and, the claimant has not pleaded and proved that, her employment was
clothed with statutory flavour in accordance with the precepts laid down in Idoniboye-Obu v. NNPC [supra]. It was
even strange that the claimant’s lawyer did not even know the conditions of
service applicable to the claimant, even when the claimant’s appointment letter
[Exhibit C8] clearly stated these, as being contained in the Staff Handbook! And this strange
professional negligence becomes more perplexing when the defendants copiously pleaded
the Staff Handbook in the ASD as the applicable conditions of
service and yet, the claimant’s learned counsel still did not realise that he
had need of the Staff Handbook but
stuck to his gun that, the PSR was
the applicable conditions of service.
The claimant only won this case because the facts of the
case did away with the conditions of service, as it was decided on the contents
of the documents before the Court, wherein the defendants made admissions, which
made it unnecessary to look at the Staff
Handbook for the purposes of determining the wrongfulness of the dismissal,
the law being that, when an employer gives reasons for dismissal, the reasons
must be justified irrespective of what is contained in the Staff Handbook – Eze v.
Nigerian Airspace Management Agency & Ors (2016) LPELR-41453 (CA) 20-21,
B-A. In any case, the learned defence counsel nevertheless unwittingly
tendered this very Staff Handbook but
it could not be of any use to the claimant with regard on the issues of
statutory flavour and transfer of service because, her lawyer failed to plead
and prove that her employment had statutory flavour as enjoined by the relevant
cases and also failed to plead and strictly prove that the claimant was
automatically entitled to transfer of service and where to find the authorities
for this within the confines of the Staff
Handbook. So, the relief failed.
I take it that the decision of the learned claimant’s
counsel to stick to the PSR, in which
he curiously also did not point to any specific rules relating to the claimant’s
case, is either gross professional negligence depicting the highest laziness on
the part of the learned counsel or a game-plan or strategy. The claimant must live
with the negative consequences. I therefore refuse relief (vi). I move to relief (vii).
I grant it as consequential order to the reliefs already granted – S. 14 of the
NICA and the Court of Appeal in Adegboye
v. UBA [supra]. Following the authorities of Promasidor (Nig.) Ltd & Anor v.
Asikhia (2019) LPELR-46443 (CA); Sahara Energy Resources Ltd v. Oyebola (2020)
LPELR-51806 (CA) and, Adegboye v. UBA [supra] and SS. 13-19
of the NICA and S.
254C-(1)(f)-(h)&(2) of the Constitution,
I grant relief (viii) in full; especially
considering the inflationary trends in the country since July 14, 2021 when the
case was filed. By virtue of the additional authorities of S. 254C-(1)(f)-(h)
of the Constitution, the authorities
of: Harmon v. State, reviewed in
Luth Levush, “Israel: National Labor
Court Quintuples Compensation in Occupational Harassment Case”
and the ILO, “Judgment 121: Twentieth Ordinary Session of the Administrative Tribunal
of the League of Nations,
1968”,
involving Agarwala v. United Nations
Food and Agricultural Organization [FAO],
I further justify the grant of relief (viii).
They are the constitutional authority and the judicial precedents on
international best practices and international labour standards that further warrant
its being granted.
The claimant testified that her office was in isolated area
and that her male secretary, whom she saw as a form of security, since the
crisis started, was removed without replacement. The defendants did not deny
these. They merely replied that the claimant never told them before but did not
address whether it was true that the office was in an isolated area detached
from all other offices and, why they had to take away the secretary, male or
female without replacement for long, but instead, cast aspersions on the
claimant’s chastity that she had an unholy relationship with the male
secretary. The defendants thus impliedly admitted that the claimant was exposed
to danger. Article 7 of ILO C155 mandates periodic reviews of ILO C155 with regards to the standards of occupational safety and
health at work in accordance with the prevailing circumstances.
Nigeria
ratified ILO C155 – Occupational Safety and Health Convention,
1981 and, ILO C190 – Violence and Harassment Convention, 2019
November 8, 2022, which now provides for issues of violence and harassments at
place of work. ILO C190 is one such
improvement in the standards of safety in the workplace, as mandated by Article
7 of ILO C155. Article 3(a)&(e) of ILO
C190 provides that:
“This Convention applies to violence and
harassment in the world of work occurring in the course of, linked with or
arising out of work:
(a) in the workplace, including public and private
spaces where they are a place of work:
(b) …
(c) …
(d) …
(e) in employer-provided accommodation…”
Article 1(a)
of ILO C190 equally defines ‘violence and harassment’ in the workplace
thus:
“(a) the term ‘violence and harassment’ in the world of work refers to
a range of unacceptable behaviours and practices, or threats thereof, whether a
single occurrence or repeated, that aim at, result in, or are likely to result
in physical, psychological, sexual or economic harm, and includes gender-based
violence and harassment…”
Both ILO C155 and C190 are fully applicable and enforceable in Nigeria by virtue of
S. 254C-(2) of the Constitution, having
been ratified by Nigeria. ILO C190 is actually a concretisation of S.
254C-(1)(a) of the Constitution,
which gives the NIC jurisdiction over
issues arising from workplace, particularly with regards to the conditions of
service, including health, safety, welfare of labour, employee, worker and
matters incidental thereto or connected therewith, in conjunction with S.
254C-(1)(f)-(h)&(2) of the Constitution,
which mandates the NIC to prevent
unfair labour practice and enforce international best practices and
international labour standards in employment and labour relations. In essence, ILO C190
ably gives flesh to the dry bones of S. 254C-(1)(a), (f)-(h)&(2) of the Constitution, as a mirror of
international best practices and international labour standards, which section
254C-(1)(a), (f)&(h)&(2) of the Constitution
actually envisioned. The conducts of the defendants in relation to the safety
of the claimant and the insinuations on her chastity, are clear violations of
safety requirement and harassment of the claimant thus, further justifying the
grant of relief (viii). I move to
consider cost.
Considering
the severe inflationary trends in this country since 2021 when this case was
filed, I grant cost of N1Million [N1,000,000] only in favour of the
claimant. I also grant 25% simple interest rate per annum on the judgment sums
until fully liquidated pursuant to Order 47, Rule 7 of the NIC Rules. The judgment takes immediate effect. That ends the
considerations and decisions on all the reliefs claimed. I must move to
conclude the decision.
CONCLUSION
In
conclusion, I reiterate the fact that I granted all the reliefs claimed in this
suit in their entireties, except reliefs (i),
which I granted only to the extend that the dismissal was wrongful, relief (iii) as amended, and relief (vi), which I refused in its entirety. I
also reiterate that I granted the additional consequential reliefs of cost of N1Million [N1,000,000] and, also 25% interest rate per annum on the judgment sums
until totally liquidated, while the judgment takes immediate effects. The case
therefore comes to an end and the decision is accordingly entered today,
Thursday the 13th day of June, in the year 2024 under my very hand,
as the presiding judge.
…………………………..
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
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