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NICN - JUDGMENT

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 OCTOBER 20, 2022           SUIT NO.NICN/EN/10/2022

 

BETWEEN:

 

IFESINACHI AKIM ONUAGULUCHI……..…………………...CLAIMANT

 

AND

 

1.     INSTITUTE OF MANAGEMENT & TECHNOLOGY

(IMT) ENUGU

2.     GOVERNING COUNCIL, INSTITUTE OF

MANAGEMENT AND TECHNOLOGY (IMT), ENUGU          DEFENDANTS

3.     RECTOR, INSTITUE OF MANAGEMENT &

TECHNOLOGY (IMT), ENUGU

 

APPEARANCES:

1.     B.C. OGUINE – FOR THE CLAIMANT/RESPONDENT.

2.     C.I. AKWE – FOR THE DEFENDANTS/OBJECTORS.

RULING

INTRODUCTION

COMPLAINT commenced this suit March 23, 2022. The accompanying Statement of Facts [SF] has the following reliefs:

A.                             DECLARATION of the court that the dismissal of the claimant is unlawful.

B.                             AN ORDER of court setting aside the effect of the dismissal letter dated 8th day of April 2019 and have the claimant re-instated to the service of the 1st Respondent immediately.

C.                             An order of court directing the 1st Respondent to pay forthwith the unpaid salaries of the claimant in the sum of N5,028,913.82 at the rate of N147,909.23 per monthly [sic] for 34 months [sic]

D.                            N20,000,000 damages to the Claimant for the damaging remarks made on him vide his dismissal letter dated 8th day of April 2019.

E.                             N5,000,000 for the pains and agonies suffered by the claimant from the unlawful dismissal of the claimant from the 8th day of April 2019 till date [sic]

F.                              10% per annum on the total judgment sum till same is paid by the claimant [sic].

G.                             Public apology to the Claimant for portraying his image in bad state.

 

The defendants reacted to the above by Memo of Appearance and Statement of Defence filed 7th April 2022, to which the claimant replied by Reply to Statement of Defence filed 20th April 2022. Thereafter, the defendants filed Notice of Preliminary Objections [NPO] against this same suit on 4th May 2022. The claimant filed Reply to the NPO [RPL] on 25th May 2022. The defendants too, filed RPL to this on 26th July 2022. The NPO came up for hearing 26th July 2022 and was thereafter adjourned for ruling 11th October 2022. Ruling was not ready on this date and was therefore adjourned sine die. When it became ready date for delivery was communicated to the erudite counsel to the parties.

Meanwhile, in the interval, the claimant first filed further authorities on 28th July 2022. He later filed a motion on 22nd September 2022 for leave to rely on further authorities and to file Counter Affidavit [CA], which CA he also filed 22nd September 2022. The defendants replied this by CA to the motion, which was filed 30th September 2022. These new processes were filed up in the case file by the court’s clerk, Anthony Ugwu on 29th July 2022, 29th September 2022 and 15th October 2022. Having given the list of all the processes, I move to summary of the ones I considered pertinent to the NPO in issue.

 

SUMMARY OF PROCESSES ON THE NPO    

A. The NPO

The relief sought is that the Court should strike out the suit for want of jurisdiction because; the defendants are all public officers and as such, S. 2(a) of the Public Officers [Protection] Act [POPA] caught the suit. The defendants deposed in the Affidavit in Support [AS] that the cause of action arose in April 2019 while the suit was filed outside the prescribed three months. C. CHUMA OGUEJIOFOR franked the Written Address [WA] in support of the NPO and framed a lone issue to wit: Whether failure to file the suit within three months is not fatal to the action? Erudite counsel referred to SS. 14 & 15 and the 5th Schedule to the Constitution and argued that, it defined public officers. The erudite counsel also cited S. 1 of the IMT Law and Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 and submitted that, the effects are that, they all proved that the defendants are public officers. The erudite counsel cited British Airways Plc v. Akinyosoye (1995) 1 NWLR (Pt. 374) on the effect of filing action beyond limitation period. Erudite counsel submitted that, the court must examine the originating processes to determine the time the cause of action arose and the time the suit was filed. The erudite counsel cited Ibrahim v. JSC (1998) 12 SCNJ 255 at 279 and Edosomwan v. ACB Ltd to the effect that, the POPA catches this action. Thus ended the WA. I move to the RPL filed by the claimant.

 

B. Claimant’s RPL to the NPO

 B.C. OGUINE franked the claimant’s RPL against the NPO. The pitch of the erudite counsel’s arguments is that, the 5th Schedule is inapplicable to this action because, it only defined public officers for the purposes of the Code of Conduct and submitted that, the implication is that, paragraphs 6-6D of the AS are otiose. The erudite counsel also argued that, for the POPA to apply to the defendants; being statutory creations, the IMT Law, must specifically make it applicable and it did not, while the contract of employment did not also incorporate the POPA. Erudite counsel also argued that, by dint of Cil Risk Asset Mgt Ltd v. Ekiti State Govt & Anor (2020) 12 NWLR (Pt. 1738) 203 at 214-215 the federal POPA is inapplicable to actions founded on state laws but the state’s limitation law. The erudite submitted that, as a result, it is S. 20 of the Actions Law of Enugu State that is applicable. Erudite counsel also cited NRMA&FC v. Johnson (2019) 2 NWLR (Pt. 1656) 247 at 253 together with NPA v. Construzione Generali Farsura Cagefar Spa (1974) 1 ALL NLR (Pt. 2) 463 to the effect that, the POPA is not even applicable to contracts of employment. The erudite counsel also cited AG Rivers v. AG Bayelsa (2013) 3 NWLR (Pt. 1340) 123 at 132 to the effect that, the defendants did not meet any of the conditions precedent for the applicability of the POPA. Thus ended the RPL. I move to the defendants’ RPL to the claimant’s RPL against the NPO.

 

 

 

C. The Defendants’ RPL to the Claimant’s RPL   

N. AROH franked the RPL. The erudite counsel cited SS. 18(1) of the Interpretation Act and 318(1)(f) of the Constitution and Awolola v. Governor of Ekiti State & Ors (2018) LPELR-46346 (SC) to further show that, the defendants are at all cost, public officers to which the POPA applied. The erudite counsel also cited the new authority of Idachaba & Ors v. University of Agriculture Makurdi & Ors (2021) LPELR-53081 (SC) whereby the Supreme Court held that, the POPA is applicable to contracts of employments. That is all that meet reply on points of law in the address. All other arguments are attempted improvements on the earlier arguments and totally new arguments. I therefore decline to go further. The RPL ends with prayer to dismiss the suit for being statute barred.

I am not unaware that there are other processes filed after the case had been adjourned for ruling, but I shall not bother to summarise them for reasons I defer to the section for my decision. The next thing for me is to give my decision. But before then, let me state that, I have most painstakingly studied the relevant processes and digested the contents. I have also studied the written addresses carefully and the focal authorities cited. I have equally done further personal researches to enable me pull off a very reasoned decision, in view of the conflicting decisions of the Supreme Court on the applicability of the POPA to contracts, which have made the issue recondite. Because of the hint that I gave concerning further processes filed after the case had been adjourned for ruling, which I said decision on it would be deferred, I shall divide the decision into two segments. The first will deal with this preliminary issue while the second will deal with the substantive merit of the NPO.

 

COURT’S DECISION AND THE RATIONES DECIDENDI

Section A: Effect of the Processes Filed After Adjournment for Ruling

The claimant filed three processes after the case had been adjourned for ruling. They are: Further Authorities filed on 28th July 2022; Motion on Notice for Leave to Rely on Further Authorities and CA filed 22nd September 2022, which CA he also filed 22nd September 2022. With regards to the further authorities, I think the law has been long settled that, counsel are at liberty to furnish courts with further authorities at any time before the courts render their decisions. This is because, it is the primary responsibilities of courts to search out relevant authorities and apply them suo motu to the cases before them and, the authorities franked by counsel are of great assistance to the courts in this regard. But the authorities furnished by counsel neither bind the courts, where the courts considered them irrelevant nor counsel arguments, considered invalid. The courts are only bound by the correct positions of law, which they have a solemn duty to search out and apply to the facts of cases.   

But this right of counsel to furnish courts with further authorities is not a licence to employ as a means of introducing new arguments. That is exactly what I found the erudite claimant’s counsel doing in the purported additional authorities. It is an abuse of process since there must be an end to addresses. It is accordingly discountenanced. I move to the other two processes, which are the motion for leave to file CA and the CA itself. I am of the view that, the erudite counsel had ample opportunity to file whatever CA he wanted to file before the NPO was heard, and decided to choose another method, which he believed was good enough strategy for his prosecution of his defence to the NPO. He cannot blow hot and cold on the strategy he chose by now applying to file CA after adopting an opposing method – see French & Ors v. Omonode & Ors (2021) LPELR-56061 (CA) 33-34, E-F. It is an afterthought. You cannot eat your cake and have it. A counsel rises and falls with the strategy adopted in the prosecution of cases – see NNPC v. Samfadek & Sons Limited (2018) LPELR-44980 (SC) 5-8, C-E; 11-13, D-A; Chidoka & Anor v. First City Finance Company Limited (2012) LPELR-9343 (SC) 16, C-E and Shettima & Ors v. Shettima (2016) LPELR-40177 (CA) 32-33, B-C.

I also cite Oladeji v. IGP & Anor (2018) LPELR-45141 (CA) 27-31, A and Iwuagwu v. Okoroafor (2012) LPELR-20829 (CA) 24, E to the effect that, it is wrong to file further affidavits when a case heard on affidavits had been adjourned for judgment, except leave is granted in exceptional circumstances. I have read the AS of the application for leave and could not find any cogent and compelling reasons offered for the inability to file the CA at the appropriate time and, I equally did not even see the bases for filing countless number of affidavits in a simple matter of limitation of actions, which the law says, is determinable at the examination of the claimants’ originating processes – see Maranatha Consultants Ltd & Anor v. Dirisu (2019) LPELR-47745 (CA) 34-35, E-C. Though, I know that, I have not heard the said motion but since this is issue of abuse of process, which goes to the Court’s jurisdiction, I can suo motu dismiss the application without its been heard, more so, when all to be said had been deposed in the AS – see Ahmadmni v. The Govermnet of Gombe State (2021) LPELR-55740 26-27, A-B. I know I am not going to grant any leave, having read the AS and could not find any cogent reasons to convince me to grant the leave sought. In the event, and relying on all the cases cited above, I dismiss the motion. I move to the substantive NPO on the merit.

 

B: Decision on the Merit of the Substantive NPO

In tackling this point, I shall ignore all other arguments and concentrate on the conflicting decisions of the appellate courts, especially the Supreme Court on the applicability of POPA to contracts, as accentuated in the two most recent conflicting authorities from the Supreme Court: CIL Risk & Asset Management Ltd’s case [supra], delivered 2020 and Idachaba’s case, decided 2021, both on point. This is because, where the pendulum will swing depends on the resolution of these conflicting decisions. Both are squarely on point. 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…” [Emphases supplied]

 

Now, the Supreme Court has emphatically held in NRMA&FC’s case that, the POPA is inapplicable to contracts generally, including contracts of service and, NRRMA&FC’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! 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 said clearly: “The Public Officers Protection Act (supra) is a statute of limitation.”

However, both sides have argued fiercely, at one side that, the POPA is applicable to contracts 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 just stuck to their individual guns. 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 NRMA&FC’s case or CIL Risk & Asset Management Ltd’s case or any of the Supreme Court cases, where it has held that, the POPA was inapplicable to contracts.  Because of these conflicting decisions from the Supreme Court on this issue, it appears 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 applicable to contracts generally, in view of the fact that, the erudite objectors’ counsel cited Ibrahim v. JSC [supra] and, Idachaba’s case, which itself, cited Yare’s case to the effect that, the POPA was squarely applicable to contracts, while the erudite claimant/respondent’s counsel cited NRMA&FC case; NPA’s case and CIL Risk and Asset Management Ltd’s case; all from Supreme Court too, to the contrary!. But Idachaba’s case seems regnant, being the latest [delivered 15/01/2021] and, ought to supersede. The Court of Appeal in Oko-Jaja v. FCSC & Ors (2022) LPELR-57627 (CA) 35-39, B-A followed Idachaba’s case 25th May 2022. The Court of Appeal being the apex court for labour maters, shares regnancy with Idachaba’s case. But, like all legal principles, there is an exception to the doctrine of stare decisis. Let us see.

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. The Supreme Court cited Ibrahim v. JSC and Yaro’s case with approval in Idachaba’s case. The Supreme Court also seemed to have suggested in CBN v. Amao & Ors. (2010) LPELR-838 (SC) that, the POPA would have applied, had the cause of action not been continuance in nature, whereas, in NRMA&FC and CIL Risk & Asset Management Ltd’s case, the Supreme Court cited a lot of other Supreme Court authorities, where it was held to the contrary that POPA is not applicable to contracts. Both also cited cases that decided otherwise and impliedly overruled them. In fact, NPA’s case, which the Supreme Court cited with approval in both NRMA&FC’s case and CIL Risk & Asset Management Ltd’s case, 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 conflicting decisions on this issue, so also is the Court of Appeal in each of the mentioned cases. In fact, both the trial court and the Court of Appeal held that, the POPA was applicable to contracts in CIL Risk & Asset Management Ltd’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 conflicting decisions on this issue! There clearly is no common ratio in the three levels of superior courts on this issue.

I wish to point out that, Ibrahim v. JSC [supra] seemed to be the first time the Supreme Court made the POPA applicable to contracts and has since then, been the anchor of all cases that decided that the POPA is applicable to contracts. But Ibrahim v. JSC did not itself advert to earlier authorities from the Supreme Court that held 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 decided in Ibrahim v. JSC. The issue actually canvassed, and which was actually decided, was that of applicability of the POPA to persons other than human beings: artificial public bodies like the Judicial Service Commission [JSC], and the Supreme Court held, it applied to all persons: human, artificial, corporate and institutional persons, as public officers and therefore concluded, the case was statute barred, even though, the case dealt with contract of employment. The real ratio in Ibrhaim v. JSC was that, the POPA applied to both natural persons and artificial persons as public officers and not that, it applied to contracts. In CBN v. Amao [supra] the issue of whether it applied to contract of employment did not also directly crop up and the Supreme Court even held that, the POPA was not applicable because of the continuance nature of the cause of action. So, the dictum that POPA could have applied remained what it was, obita dictum.

So, Ibrahim v. JSC and CBN v. Amao were not decided squarely on point. Thus, the facts 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]; NRMA&FC’s case, and CIL Risk & Asset Management Ltd’s case, where the issues of applicability of POPA to contracts were directly considered and the Supreme Court held that, the POPA was totally inapplicable to contracts, including contracts of employment. It might be necessary to reproduce the provisions of S. 97 of the Ports Act, which the Supreme Court considered in NPA’s case. 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 enjoy the same interpretation. No wonder that the trial judge held that, the section applied not to actions relating to contracts. I think it is important to quote extensively from NPA’s case 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.” [Emphasis supplied]

 

The Supreme Court in as recent as March 13, 2020, in holding that the POPA is inapplicable to cases founded on breach of contracts, in CIL Risk & Asset Management Ltd v. Ekiti State Govt. & Ors (2020) LPELR-49565 (SC) 6-9, E-D reechoed the NPA’s case 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. Numerous judicial dicta of this Court support the submission. 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 ipixit 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. They accordingly invoked the provision of Section 2(a) of the Public Officers Protection Act, being a special defence, as having extinguished the Appellant’s right to enforce the cause of action founded on the said breach of contract. 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 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. This issue is resolved in favour of the Appellant against the Respondents.” [Emphasis supplied]

         

From the NPA’s case earlier quoted above, construed along with the CIL Risk & Asset Management Ltd’s case just quoted above, it is clear the Supreme Court laid down a very solid backbone for the proposition that the POPA does not apply to contracts. With respect, the Supreme Court narrowly fell short of specifically stating that the POPA dealt only with torts and not contracts. Employment relations are based principally on contracts. 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 paragraph 6–15 of the Statement of Facts 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, being an alleged statutory employment – see paragraph 2 of the Statement of Facts.

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 breach of contract simply because, allegations of defamation are an ancillary claim arising from the breach of the contract of employment. But Yare’s case and, now Idachaba’s case [the Supreme Court’s latest on point], are knotty in that, they were decided on point squarely; and yet, held against the long line of the previous Supreme Court’s cases which held that, the POPA was applicable to contracts. 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 in Idachaba’s case with approval in holding that the POPA was applicable to contracts of employment. These issues directly cropped up from the objections filed by the defendants/applicants at the trial courts and, through the Court of Appeal to the Supreme Court and, the decisions of the three courts were the same that, the POPA was applicable. However, one thing I observed about the two cases is that, none examined the other conflicting decisions of the Supreme Court on the same issue. I have also observed that, in NRMA&FC 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 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…” [Emphasis supplied]

 

I think with grave humility, 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 contract of service, whereas, Ibrahim v. JSC had held, it was applicable; the implication is that, it impliedly overruled Ibrahim v. JSC with regard to the issue of applicability of the POPA to contracts of employment. It did not cite Yare’s case, but by inference, having impliedly 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 case and Idachaba’s case. Though, I note that, Idachaba’s case is later than NRMA&FC’s case, but by previously indirectly overruling Ibrahim v. JSC, which anchored Idachaba’s case, the wind, with utmost respect, appeared taken out of the sale of Idachaba’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, and it is the latest in the series of conflicting authorities on point that ought ordinarily to be followed, but it is self-evident and with the greatest humility that, it did not advert to its previous contrary decisions on point, making it difficult to discern the exact common ground [ratio] between them.

 It is thus clear that, there is no discernable ratio to be relied on in these cases; especially that, the Supreme Court did not take cognisance of its penultimate decisions in NRMA&FC case and CIL Risk & Asset Management Ltd’s case and the earlier decision 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 conclusions that POPA was not meant to be applicable to and was not actually applicable to contracts generally, including contracts of employment. Not having directly cited NPA’s case and NRMA&FC’s case and overruled them, it means the most recent decision of the Supreme Court on the issue might, with the utmost respect, not be the law since; it did not anticipate and overrule these contrary authorities, making it difficult to pin down the ratio to follow. In a situation like this, the Supreme Court itself, in NEPA v. Onah (1997) LPELR-1959 (SC) 9-10, C-A gave the solution:

 “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 Court of Appeal in Ngun v. Mobil Producing Nigeria Unlimited (2013) LPELR-20197 (CA) 31-32 followed the Supreme Court’s prescription abovein. That appears to be the position in the instant case, where the Court of Appeal has also been enmeshed in conflicting decisions as the Supreme Court on the issue.  In arriving at its decision, in NRMA&FC’s case, the Supreme Court cited and reviewed a long line of its decisions and came to the conclusion that, the inapplicability of POPA to contracts is “settled” – see p. 270, E [supra] – but this is not to be: it has been resuscitated in Idachaba’s case without reference to NRMA&FC’s case. The position that the POPA was inapplicable to contracts was affirmed with a more tone of finality in the likely penultimate decision of the Supreme Court to Idachaba’s case, in CIL Risk & Asset Management Ltd’s case 55-57, A. In it, the Supreme Court cited Ibrahim v. JSC on another point and did not directly overrule it on point but unfortunately, did not still cite Yare’s case, decided on point, but contrarily.

But CIL Risk & Asset Management Ltd [supra] went to memory lane to cite a long line of Supreme Court’s decisions that had held that, the POPA is 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.” – see p. 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 controversial corpse, thought to have been buried and forgotten, but which kept getting exposed at the slightest opportunities.

It is now clear 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 conflicting Supreme Court’s 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 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. To solve the problem, we must unravel the real cause. What is the real reason for this turn of events?

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 and omissions so specified, which are not contractual agreements, but arise from statutory duties. Contractual agreements are independent agreements of personal characters, which are not prescribed by any law but by personal agreements of the parties, which the law only recognise and enforce. 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 laws, which public officers or bodies are by statutes bound too to implement, in the courses of implementing them, the acts or omissions, negligence or default arising therefrom, leading to the injuries, 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 applied to torts and not contracts:

“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 redressible primarily by action for damages...”

 

Thus, tort includes both intentional and accidental or negligent acts and omissions once they breached duties fixed by law for the benefits of all persons – 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.” [Emphases mine]

 

A very careful look at the provisions of the POPA, as reproduced earlier on abovein, especially the underlined 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 default in carrying out their public duties. In carrying out the public duties assigned to them, the public officers have corresponding duties of care fixed by law not to unlawfully affect the rights of others and not to be negligent or brash to the people to 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 right to litigate the tortious cause of action.

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 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, but of breach of the terms of the contract involved. 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.  

When you talk about duties of care and negligence in carrying out public duties, you are talking about torts and not contracts, for; contracts are based on agreements and breach of agreements and, not negligence. Causes of actions arise in contracts from breach of agreements personally fixed priorly by parties themselves and, not from breach of duties fixed by law, negligence, wrong actions and inactions giving rise to the causes of actions in torts, but from breach of personal agreements fixed by the parties themselves. It would be seen that, the injuries envisaged by S. 2(a) of the POPA has nothing to do with breach of agreements [contracts], but tortious liabilities fixed by law, whether intentional or accidental.

It would be seen that the public duties assigned to public officers under S. 2(a) of the POPA are administrative in nature and directly involved the use of discretion or, at the doubtful 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. 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 wrongs exercises of discretions or wrong performance 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. 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, 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 injured victims and the public officers-tortfeasors, and for which protection was granted, were not contractual, but tortious, that could be compensated in damages or infringement of rights that could be judicially reviewed under Administrative Law. 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 rightful or negligent exercise powers to execute public duties fixed by law.   

It is clearly preposterous for a party to an agreement [contract], be it government, 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 agreement to bar 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.

Thus, this time bar is logically deemed to be in their contemplation because; ignorance of the law is not a defence. The POPA on the other hand, is completely off radar, for, it neither mentioned nor contemplated contracts and would thus, be totally unfair on contracting parties with public bodies, who had their minds on another limitation law that specifically deal with contracts, to be ambushed by the POPA, which is totally outside their contemplations and did not actually deal with contracts. It would produce the unsavoury potential to stifle contractual relations with government and public bodies and drive away foreign investments from Nigeria if POPA continues to apply to commercial and employment contracts between public bodies and the contracting partners with just three months grace period, contrary to what obtains around the world, where the equivalents of POPA do not apply to contracts but rather, the equivalents of the Limitation Act and Actions Law of Enugu State, that deal specifically with contracts and with longer limitation period.

The Supreme Court actually hinted at the above observations in NPA’s case when it said, in England, the POPA’s equivalents never applied to contracts and accordingly, narrowed the ambit the Ports Act, which was impari materia with the POPA. Where there are two possible interpretations of a statute, the one that conduces with avoidance of absurdity and eschewed injustice is preferred, 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. A close study of all the Nigerian specific limitation laws on contracts showed that, they bind both government and private contracting individuals alike. It follows that; both the Limitation Act and the state limitation laws specifically meant for contracts, and the POPA, cannot at the same time apply to the same cause of action. This shows clearly that, the POPA is meant for an entirely different scenario from contracts.      

The federal 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 general statute – see Ardo v. Nyako & Ors (2014) LPELR-22878 (SC) 47, A-D. To this extent, since the federal and state limitation laws specifically provide for limitation times in 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. The specific mention of one thing is the exclusion of that not mentioned – see The FRN v. Osahon & Ors (2006) LPELR-3174 (SC) 80, B-D. At no place did 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. Both provisions specifically dealt with contracts and not negligence or tort, while the POPA specifically dealt with breach of duty fixed by law arising from negligent acts or omissions [torts] of public officers burdened with the performance of these 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) in issue, uses the phrase “act, neglect or default” in the execution of law, public duty or authority. And tort is inclusive of both intentional acts and accidental acts [negligence] – see MTN’s case [supra]. From this, it is clear that, intentional acts and omissions and negligence [torts] are the governing words. The important things are the injuries caused and, the principle involved is that of liability in torts and not contracts. 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 injuries in breach of duty imposed by law to succeed 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. [also quote intentional acts]

 

S. 2(a) of the POPA is 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 suits brought within 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. 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 case, where this issue is examined for the first time, is distinguishable from all the previous cases, which held that, the POPA was applicable to contracts, and is accordingly hereby distinguished.  Thus, those cases holding that the POPA is applicable to contracts are, with utmost respect, not authorities for the present NPO.

Arising from the foregoing, I hold that, the POPA is inapplicable to the cause of action herein, which is based on alleged 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, I, with the utmost respect, prefer this long line of Supreme Court’s decisions on point: NPA’s case, NRMA&FC’s case, and CIL Risk & Asset Management Ltd, which thoroughly reviewed both sides of the divide and held that, the POPA was inapplicable to contracts, as the authority for the decision herein; as against Ibrahim v. JSC, Yare’s case and Idachaba’s case, which, with utmost respect, did not review the previous contrary authorities of the Supreme Court on the same issue but held that the POPA is applicable to contracts, including contracts of employment. I hold that POPA is inapplicable to contracts of employment and, contracts generally.

Before concluding this decision, I must say a word or two on the Actions Law of Enugu State, whether it catches this case. It provides 6 years limitation time for actions brought on breach of simple contracts or quasi-contracts. There is no doubt that the cause of action herein arose from alleged contract of employment between the parties. The cause of action arose 8th April 2019 – see paragraphs 14&15 of the Statement of Facts, and six years from then, terminates 8th April 2025. Hence, the Actions Law of Enugu State did not catch this case too. It means the case is free from the snares of all limitation laws. Having got to this stage, I must conclude the decision by making the necessary consequential conclusive order that logically flowed from my findings and decisions before now.

 

CONCLUSION

Having found that the POPA is inapplicable to contracts of employment and that the Actions Law of Enugu State did not catch the case too, it follows that; the NPO lacks merit and, must be dismissed. I hereby accordingly dismiss the NPO as totally lacking in merits. This Court’s jurisdiction remains intact. The case shall proceed to trial on the merits. I award cost of N100,000 [One Hundred Thousand Naira] only against the objectors and in favour of the claimant/respondent.

 

ADDENDUM:

After I had completed this ruling on the morning of the 19th October 2022, at about the hour of 8:55am, a message flashed up on my WhatsApp Page and, I opened to see if urgent, before sitting for the day. I found it was a write up[1] on the scope of the applicability of the POPA. Naturally, my curiosity was aroused because of the timeliness of the write up. But I deferred the full grasp of the details till after my sitting. After the day’s sitting, I read it fully and, found that the article was actually reporting [possibly] the most recent Supreme Court’s decision on the scope of the applicability of the POPA in Suit No. SC.82/2010 – Oluremi Obasanjo & Anor v. Wuro Bogga Nigeria Limited & Ors [delivered Friday June 17, 2022]. The article reported that the Supreme Court cited CIL Risk & Asset Management Ltd’s case with approval and some previous decisions of itself on point and came to the conclusion that, the POPA was not applicable to recovery of lands and other cases founded on breaches of contracts. The decision was also reported, to have specifically found that, the Limitation Act was the applicable statute to recovery of land at the federal level and that, it gave public officers protection after 12 years [time bar] of the happening of the cause of action.

This decision, clearly fortified my findings and conclusions herein above that: the POPA is totally inapplicable to contracts generally, including contracts of employment and that, the Limitation Act and each State’s limitation statute, that specifically cover contracts are the applicable statutes that provide time bars for actions founded on breaches of contracts. Since, it tallied my decision, it ought to have been simple answer to the NPO. I ought therefore to have amended the ruling by incorporating this case and easily anchor my decision on it. But that is not to be. I decided not to amend my ruling to incorporate this authority into its main body because, I found that, the angle of vision I had on the issue is yet unexplored in this latest Supreme Court’s authority and that, with the utmost respect, going by the constant conflicting decisions from the Supreme Court on this knotty issue, Obasanjo’s case, with utmost respect, is not likely going to be the end of conflicting decisions. One cannot escape this conclusion, if within a short space of six months, two conflicting authorities have emanated on point from the sacred temple of the apex court between January and June 2022, with one interposition from the Court of Appeal [the apex court for labour matters] in May 2022!

I think it better that this new angle of vision on point be made open to the appellate courts, maybe, it might throw more lights on why the POPA is not, ought not to be and should not be, applicable to cases based on breaches of contracts; thus, enabling the appellate courts to possibly put an end to the knottiness of the issue by handing down a locus classicus on it. I believe, with all sense of responsibilities that, a trial court owes the judicature a sacred duty to draw its attention to this scenario of uncertainty in an important area of the law, once an opportunity like this arises, for the appellate courts possible rationalisation of all the conflicting decisions and resolution of the conflicts by handing down a locus classicus, once and for all, for the betterment of the doctrine of stare decisis. The conflicting decisions, seemed, no doubt, to have arisen from the facts that different panels hear these cases and might not be aware of the previous decisions by another panel and, the lawyers have not been helpful because of their partisan advocacies. The duty thus falls on the trial courts in judicature itself to point to this out. If perhaps, the issue goes on appeal, everything would be laid bare before the appellate courts for a lasting solution.

In the second place and more importantly, I found that, the write up, as expected, did not contain the full judgment unedited but merely supposed snippets from it and, principally the reportage of the author. The publication did not also contain any valued judgment or analysis to qualify it as an article or scholarly publication on point. It is therefore neither a reliable source of law report nor publicist’s opinion that could be leveraged as authority. I tried thereafter to search the case out on my LAWPAVILION PRIME, on Nigerian Weekly Law Reports online at www.nwlronline.com and, also on google, all to no avail. It means most probably the cases had not been reported. And I did not have the liberty of time to go for CTC at the Supreme Court itself before delivering a decision I had completed before it came to my attention. With the dangers inherent in not reading a full judgment before basing a decision on it, this firmed up my resolve to leave my decision as originally written undisturbed, but to cite the supposed newest case, since I have stumbled on it, in order not to be accused of research and judicial dishonesty.  Hence, I added it as postscript, for the possibility of further research in this recondite area of the law.

 

ENTRY OF RULING

Ruling is accordingly entered under my hand today Thursday the 20th day of October 2022.

…………………………..

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

 


[1] Bridget Edokwe, “Scope of Application of Limitation Bar in Section 2(a) of the Public Officers (Protection) Act” [published October 18, 2022] at https://barristerng.com/scope-of-application-of-limitation-bar-in-section-2a-of-the-public-officers-protection-act/ [accessed 18:14pm October 19, 2022].