One of the foremost legal practitioners, Ganiyu Ajibola Bello has called for a review of the laws regulating the operation of statutes of limitation, particularly the Public Officers Protection Act. He made the call at the seminar organized by the Centre for Equity and Development.
He posited that while the Courts have always held that the Public Officers Protection Act can operate to bar a suit concerning termination of employment which is not instituted within three months, and the recent position of the Supreme Court that the Act is inapplicable in all circumstances of a case involving contract of service means that cases of termination or dismissal involving statutory bodies can now be instituted at any given time without limitation.
Mr. Ajibola Esq said the call for review takes into account that the Public Officers Protection Act was enacted to avoid the elongated distraction of public officers from public duty and same is the reason why the period of instituting an action against public officers are limited; that the Act is long overdue for amendment given the socio-economic changes that have since evolved within the legal regime of the Country and the quagmires which the Act has generated over the years in the adjudicatory process.
He explained that the Public Officers Protection Act is over a century-year-old as the Act was first enacted in 1916 to replace the English Statute of General Application known as Public Authorities Protection Act, 1893 that since the said 1916, the period allowed for prosecuting cases against public officers had remained three months. The period has never been elongated despite the fact that several cases manifested the insufficiency of the allotted period.
Ajibola maintained further that bearing the recent authority of the Supreme Court in mind, such cases of termination or dismissal brought after 8years would still gain an audience in court being that actions arising from the contract of service can no longer be statute barred and such employees of a statutory body would be entitled to reinstatement with salaries for all the periods he was out of work where the termination is indeed found to be void.
Read the paper presented below
THE OPERATION OF STATUTE OF LIMITATION IN RELATION TO CONTRACT OF SERVICE: CASE STUDY OF N.R.M.A. & F.C. V JOHNSON (2019) 2 NWLR (PT. 1656) SC 247.
By
Ganiyu Ajibola Bello. LLB. BL. LLM.
The right to access the courts for the redress of a wrong is constitutionally guaranteed for every citizen, particularly civil related wrongs bordering on employment and labour matters. The Constitution of Federal Republic of Nigeria readily provides to the effect that the judicial powers vested in the courts shall extend to all matters between; persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.[1] The sacrosanct nature of this constitutionally guaranteed right has been acknowledged in several cases to the effect that same is inalienable[2] and no law can subtract from or deviate from it or deny any person of it.[3]
Notwithstanding the sacrosanct nature of the right to access the courts, the Nigerian legal regime has accommodated several instances whereby a matter brought before the court will not be heard. Such instance includes where the court lacks substantive jurisdiction to entertain the suit; where the court finds that there is no cause of action or where a condition precedent to instituting the suit has not been complied with. For the purpose of this paper, the focus is the instance where the right of access to the court is extinguished due to the suit being caught up by limitation period as stipulated in an applicable statute of limitation.
The means of extinguishing the right of access to court via a statute of limitation is in most cases legally justifiable in view of the fact that the statutes comes as an enactment made by a body duly authorized to do so. However, its purpose and socio-economic impact particularly as it relates to labour jurisprudence calls for a review particularly in the face of a recent decision in the case of N.R.M.A. & F.C. v Johnson[4] where the Supreme Court posited without elaboration that the appellants do not enjoy the umbrella of Public Officers Protection Act in the contract of service involving the respondents.
Consequently, this paper is set out to consider the purpose and effect of statute of limitation and its general application along with its exception. Most importantly, the paper focuses on the chequered application of the Public Officers Protections Act to contract of service and its socio-economic implication as arising from the decision of the Supreme Court in the case of N.R.M.A. & F.C. v Johnson.
- Purpose and Effect of Statute of Limitation.
A statute of limitation is an enactment used to stipulate a period within which certain types of cases must be instituted for the initiating litigant to be heard, failure upon which the cause of action will be deemed to have been statute barred. In other words, it has been reckoned that statutes of limitation are statutes of repose and are such legislative enactments which prescribe the period of repose within which actions may be brought upon certain claims or within which certain rights may be enforced. Statute of limitation does not merely deny the right of action, it completely extinguishes an existing right of action at the expiration of the statutory period from the accrual of the right of action.[5]
A statute of limitation can be a federal or state enactment. For instance, the Public Officers Protection Act[6] (POPA) is a federal enactment and it serves to protect only public officers in the public service of the federation. This was the recent position of the Supreme Court in the case of CIL Risk and Asset Management Ltd. v Ekiti State Government & Ors.[7] where the court held to the effect that the POPA is enacted pursuant to item 53 of the Exclusive Legislative list and section 4 (2) of the Constitution and by so doing has no general application such as to apply or offer protection to public officers in the service of Ekiti state or any other state in the Federal Republic of Nigeria.[8]
On the other hand, an instance of a state limitation law is the Limitation Law of Lagos State which provides to the effect that a claim for the enforcement of a simple contract must be within six years whilst that of contracts under seal is twelve years.[9] Apart from the categorization of limitation laws as federal and state laws, it is worthy of note that provisions of limitation laws can also specify limitation periods for particular subject matters such as the provision of 3 years for cases bordering on damages for negligence;[10] action for slander is also for 3 years[11] and action for recovery of land by the state is 20 years in Lagos state.[12]
In addition to the foregoing, it is worthy of note that both individual and body corporate can invoke the statute of limitation in defence to an action maintained against them. To put this into perspective, the Public Officers Protection Act has been reckoned to protect not only natural human beings who are public officers but also the body corporate. This position was maintained by the court in the case of Alhaji Aliyu Ibrahim vs. Judicial Service Committee, Kaduna State & Anor[13] where the Supreme Court held that:
The definition of “any person” in the Public Officers (Protection) Act cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. But admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated.
It is based on the foregoing provision that entities created by statutes as a public body can invoke the POPA in defence of prosecution. Although, it must be noted that private corporate entities cannot invoke the provisions of Public Officers Protection Act.
Having said the foregoing of what a statute of limitation is, the rationale of such statute was clearly elucidated upon by the court in the case of Alhaji (Dr.) Ado Ibrahim v. Alhaji Maigida U. Lawal & Ors.[14] where the court held that:
One may wonder why a person’s right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence.[15] (emphasis mine).
Arising from the foregoing holding of the court, two rationales can be deduced. The first is that: to have left a claim to be dormant for years or a particular period exhibits more of cruelty than justice, hence a person with a good cause of action should pursue same with reasonable diligence. This first rationale can be attributed to the equitable principle couched in the maxim “vigilantibus et non dormientibus jura subveniunt”, meaning that “the law aids the vigilant, not those who sleep”[16]. The said maxim is usually invoked in raising the defence of laches and acquiescence upon which the prosecuting litigant may be held to have slept on his right. There is also a more generic maxim which says “delay defeats equity” as the court reckoned in the case of Awanen v. Ntaoh[17] to the effect that:
Equity frowns at a party resuscitating a stale action. Every court of law and justice denies relief to a claimant who unreasonably delays in asserting his claim. Delay defeats equity. This principle applies to all causes or matters including causes or matters founded on customary law.[18]
Bearing in mind the foregoing principles in relation to delay and sleeping on one’s right, it seem apt and legitimate to have general provisions for limiting the period when an action can be maintained before the courts over certain claims.
The first rationale as found above can be said to be a principle predicated on a philosophical or jurisprudential footing. The second rationale is more of procedural in view of the fact that same relates to the chances of adducing evidence in disproof of a claim considered stale. The second rationale is borne out of the first as it can be considered ‘cruel’ to require a defendant who may have lost the evidence to defend such a suit initiated long after the defendant may have anticipated it. It should be said that the second rationale however leaves much to chance and one cannot tell for certain if there are no available or reliable evidence until the suit is initiated. In other words, the potency of the second rationale in denying access to court is frail.
- General Application and Exception to the Operation of Statute of Limitation.
The operation of a statute of limitation as a means of extinguishing the right of access to court arises from the provision of a particular limitation law being invoked by a party who is a defendant to a suit. The usual practice is for such defendant to raise it as a defence or to raise it by way of preliminary objection to the effect that the suit in question is statute barred.
Upon the contention that the suit is statute barred, it becomes incumbent on the court to ascertain whether or not such suit is indeed statute barred. To do so, the court usually apply a yardstick which is as prescribed in the case of Ajayi v. Adebiyi[19], where the court noted authoritatively that:
The yardsticks for determining whether an action is statute barred are: a, the date when the cause of action accrued; b, the date of commencement of the suit as indicated on the writ of summons (or any other originating process); and c, the period of time prescribed to bring an action to be ascertained from the statute in question. (parenthesis mine)
By way of application of the foregoing yardstick to determine whether an action or cause of action is statute barred, what is required for the court to do is to examine the originating process of the action and the statement of claim wherein the facts as to the dates when the wrong complained of and giving rise to the cause of action was committed and then comparing it with the date on which the process initiating the action was filed. If the date on which the action was initiated by computation generates a period which is beyond the time or period prescribed, and limited by the relevant limitation Law, then the action will be said to be statute barred.[20]
In the light of the foregoing, once the court applies the required yardstick and finds that the suit is statute barred, the implication is that the prosecuting litigant will axiomatically lose the right to enforce any right which could have possibly arisen from such suit and for that, the suit will be dismissed. The court put the effect of finding a suit to be statute barred more succinctly in the case of Alhaji (Dr.) Ado Ibrahim v. Alhaji Maigida U. Lawal & Ors[21] when the court held that:
It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed.
The foregoing being the general rule, the prospective litigant loses the right to enforce any claim arising from a suit initiated outside the limitation period. However, the application of statute of limitation admits of exceptions in the sense that there are instances where after the court finds that the case is instituted outside the prescribed limitation period, the court may still proceed to hear the suit owing to the circumstance of the case being covered by one or more of the exceptions.
It must be reckoned that several known exceptions have been identified by the courts in the course of dealing with various limitation laws. Although, two most notable exceptions have always been identified in the course of addressing the application of the Public Officers Protection Act. The said exceptions were for instance highlighted in the case of Akwa Ibom State Civil Service Commission & Ors v. Akpan[22] where the court held that:
Two most important exceptions are prescribed by the Act. Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty.[23]
Putting the two exceptions into perspective, it is important to mention that the first can be taken into account at a preliminary stage and without an evaluation of evidence. This is because the court can easily deduce whether the cause of action and the accruing injury continued after the limitation period by assessing the facts as stated in the statement of facts before the court and once the court finds such continuance of injury, the suit will not be considered statute barred if by the time the injury ceased, a period of limitation has not elapsed.
With regards to the second exception, the court will need to be weary of dealing with the substantive suit at a preliminary stage as it is difficult for a court to ascertain if the defendant acted outside the color of his office without evaluating evidence which is not yet properly before the court.
Notwithstanding the difficulty faced in the application of the second exception, the bottom line is that once the court is able to establish either or both exceptions, the suit will not be considered statute barred and the prosecuting litigant will have his day in court to establish his case.
- Application of Statute of Limitation to Labour Related Cases.
The discourse on the application of statute of limitation to labour related cases takes a different dimension. The discussion is essential in view of the fact that the Supreme Court in the case of N.R.M.A. & F.C. v Johnson[24] recently decided to the effect that the Public Officers Protection Act and by implication, statutes of limitation of its kind, are not applicable to contract of service. This position is contrary to the initially settled position of the law which operates to exclude contract of service from general contracts to which statutes of limitation does not apply. In other words, while the earlier decided cases made Public Officers Protection Act and similar provisions to apply and operate in barring labour related cases that are not instituted within the statutorily prescribed period, the effect of the recent Supreme Court decision is that henceforth, statutes of limitation such as Public Officers Protection Act will no longer operate to bar labour related cases and it means that contract of service is now placed in the same category as regular commercial contracts and altogether exempted from limitation.
The foregoing position was perhaps taken without bearing in mind the fact that cases arising from regular contracts, such as simple contracts and contracts under seal, however have limitation periods under state laws as can be seen in the earlier categorizations made of state and federal statutes of limitation. For emphasis, an instance was made of Lagos state where a claim for the enforcement of a simple contract must be made within six years whilst that of contracts under seal is twelve years.[25]
Having said that, it should for emphasis be noted that the initial position of the law in applying statutes of limitation including the Public Officers Protection Act to labour related cases can be found in several cases including the case of University of Jos v Dr. Sani Muhammad Adam[26], where the Supreme Court had earlier held that:
section 2 (a) of the Public Officers Protection Act renders a cause of action based on termination of employment statute barred and unenforceable where brought outside the prescribed three months period and the Supreme Court has consistently applied the provision to employment in the public sector.
Arising from the foregoing, it is without doubt that cause of action based on termination of employment is one that accrues from a contract of service and therefore labour related. In more specific terms, it was clear that the courts have earlier made a distinction of a duty arising from ‘specific contract’ and a public duty when considering labour related cases.
The implication is that the Public Officers Protection Act will not be applicable where the breach arises from a contract which is a ‘specific contract’ with distinct terms and conditions. Where however, the action is predicated on termination of employment which is carried out pursuant to the performance of a public duty, though considered unlawfully executed, the Act will apply to protect the public officer in that he must be sued within a stipulated period.
The Court of Appeal made an exposition to the foregoing effect in the case of Egbele v. The Post Master General (NIPOST)[27] where the court addressed the applicability of limitation law to cases of contract of employment i.e. labour related cases thus:
The question of applicability of limitation law in cases arising from contracts of employment was addressed by the Supreme Court in the case of Bakare v. Nigerian Railway Corporation 2007 17 NWLR (Pt. 1064) 628 whilst interpreting the provisions of section 38 (1) of the Nigerian Railway Act Cap 323 LFN 1990. The Supreme Court followed its earlier decision in NBC v. Bankole 1972 NSCC 220. In NBC v. Bankole 1972 NSCC 220., supra the Supreme Court while interpreting section 61 (1) of the Nigerian Broadcasting Corporation Act which is identical to section 2 (a) of Public Officers Act and held that where a contract refers to a specific contract entered into by parties with distinct terms and conditions, the statutory privilege under Public Officers (Protection) will not avail a public officer where there is breach. However where the act or decision complained of is in the performance or execution of a public duty, the protection will avail a public officer or public authority. See also Zebra Energy Ltd. 200 18 NWLR (Pt. 798) 175. In NBC v. Bankole (supra). The plaintiff instituted an action for unlawful termination of the employment outside 12 months as provided by the relevant statute. The Supreme Court held that the action was statute barred and that the Defendants enjoyed statutory privileged position by section 83(1) of the Railway Act and section 61 of the Broadcasting Corporation Act, which are identical to Public Officers Act. See also the case of Forestry Research Institute Of Nigeria v. Gold (2007) 11 NWLR Pt. 1044 where the Supreme Court held that Public Officers (Protection) Act applies to contract of employment.[28]
The foregoing authority without a doubt manifestly shows what used to be the unambiguous position of the law with regards to the application of limitation laws to contract of employment. The decision also goes to show that the Supreme Court had earlier reckoned with the difference between general contracts and contract of employment/service.
In the face of the earlier position, it deserves a mention that the application of Public Officers Protection Act to cases bordering on contract of employment admitted its own unique exception as labour related cases bordering on claims of unpaid salaries, pension and gratuity were exempted and kept away from the jaws of the statute of limitation. The said exception is hinged on the concept of continuing injury as long as the salary remains unpaid and same was manifested in the case of Hon. Runyi Kanu (JP) & Ors v The Attorney General & Commissioner for Justice, Cross River State & Ors[29] where the court held that:
In cases of claims for salary and allowances, the decision of this court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide & Ors v Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v AG, Bayelsa state & Anor (2013) 3 NWLR (Pt.1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme court held that the case for the deprivation of allocation, which the Plaintiff was entitled to every month and same has not ceased, was a situation of continuance of damage or injury which has not ceased’ and so the defence of the Public Officers Protection Act would not avail the 1st Defendant who had raised it.[30]
Although the court predicated the exception on the concept of continuing damage or injury, this paper considers it without a doubt to still be a good law, even after the tenure for earning the salary has ceased but past earned salaries remain unpaid. In other words, where an employee has left the employment either by termination or resignation, the claim for salaries, gratuity or pension which were owed to him/her during the pendency of the contract of employment should continue to be actionable as long as they remain unpaid. This is because it would be unfair to consider the claim of a payment for work done to be stale.
- A Case Study of The Decision of The Court in N.R.M.A. & F .C. v. Johnson.
The case of N.R.M.A. & F.C. v. Johnson[31] is a most recent case wherein the Supreme Court with due respect, unceremoniously held that the Respondents’ claim is on a contract of service and therefore, the Appellants are not covered by the provisions of the Public Officers Protection Act.
The history of the case is that the Respondents were amongst those invited for interview for employment as staff of the 1st Appellant, a Commission of the Federal Government of Nigeria. The Respondents were later offered appointment by the 1st Appellant which they accepted. When the Respondents reported for work, they were addressed by the Director of Personnel of the 1st Appellant and the Respondents continued to report at the headquarters of the 1st Appellant until they were orally asked to stay away from work as there was said to be a directive from the then new government to stop all appointments made in the month of May, 1999. Consequent upon the said directive, the 1st Appellant wrote a letter dated 6/12/2000 to the Respondents to withdraw their appointments.
Consequent upon the forgoing, the Respondents commenced an action on the 28/9/2001 via a writ of summons to claim before the Federal High Court as follows:
- A declaration that the plaintiffs are and remain employees of the 1st defendant and should be assigned official responsibilities with all the necessaries to make them work and perform effectively.
2.An order directing the defendants to pay the plaintiffs all their salaries, emoluments and other entitlements due from 1st June, 1999 to date.
3.A declaration that the defendants’ deliberate denial of the plaintiffs the opportunity to serve their fatherland for which they have been lawfully engaged is unlawful and unconstitutional.
The Appellants’ main defence to the Respondents’ claim was that the contract of employment between the parties was frustrated by the directive of the new government of the Federal Republic of Nigeria, suspending all the appointments made from January – May, 1999.
Judgment was entered in part for the Respondents by the trial court as the Appellants were directed to pay the respondents all their salaries and emoluments for the period between 26th May, 1999 and 6th December, 2000.
Both parties were dissatisfied with the decision as the Respondents wanted more while the Appellants wanted none of it. At the Court of Appeal, the Appellant in addition to being dissatisfied with the decision of the trial court, contended that the writ of summons of the Respondents case was filed on 28/9/2001, whereas the cause of action arose on 6/12/2000, on which date the alleged appointments of the Respondents was withdrawn by the appellants, being 9 months, hence the action was statute barred. The Appellants submitted that the Respondents had lost their right of action.
In its judgment, the Court of Appeal dismissed the appellants’ appeal, but allowed the respondents’ appeal in part. Both parties were still dissatisfied with the decision, hence they appealed and cross-appealed to the Supreme Court.
The Supreme Court addressed all the issues canvased by both parties but the focus of this paper is that relating to the applicability of Public officers Protection Act as a statute of limitation to the suit.
The Supreme Court, per Ariwoola JSC, who read the lead judgment reckoned the argument of counsel to the Appellant at the Court of Appeal, and posited that it is clear from the argument of the appellants that they seem to be claiming to be covered by the provisions of Public Officers Protection Act.
In addressing the contention, the Court foremost reckoned that the ordinary purpose of the Public Officers Protections Act is to protect officers in civil liability for any wrongdoing that occasion damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of.[32]
Upon recognizing the purpose of the limitation law, the court went further to hold that the law is said to be designed to protect only the officer, who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification.[33]
Bearing this position in mind, there is no gainsaying that the Court reckoned with certain exceptions in the application of the statute of limitation in the sense that the Public Officers Protection Act will not apply where the act of the Public officer was done in bad faith, or abuse of office, or without legal justification. While these are plausible exceptions, the court did not place the act of the Appellants under any of the circumstances highlighted under the exceptions. In other words, the Supreme Court did not hold that the withdrawal of the offer of appointment of the Respondents pursuant to the directive of the Federal Government was done in bad faith, nor was in abuse of office nor without legal justification. All the Court did was to make reference to an earlier opinion of the court as it relates to where an act causes damage to another. The Court held that:
In Fred Egbe v. Alhaji Abubakar Alhaji & Ors (1990) NWLR (Pt.128)546; (1990) 3 SC (Pt. l) 63; (1990) LPELR – 1033, this court opined that where an act which had caused damage is done in the pursuance of any law or public duty, an injured party can recover damages or other relief whether the act was done in good faith or not.[34]
Bearing this position in mind, it seem the Supreme Court recognized that the act of the Appellant in withdrawing the offer of appointment of the Respondents were not necessarily done in bad faith nor as an abuse of office because the Supreme Court evaluated the evidence which showed that the Appellants were indeed directed to suspend all appointments done in May, 1999. The reference to the above authority suggests that the Supreme Court took cognizance of the fact that the Appellants were helpless in the situation and had no intention to do damage to the respondents in withdrawing their appointments. But since the damage is already done, The Respondents should not be denied relief.
Nevertheless, the Supreme Court perhaps considered it wise to hold that the suit is not statute barred as to do otherwise will be unjust on the part of the innocent victims of the directive who were reporting to work after accepting their offer of appointment and whom were not paid salaries.
The Supreme Court however did not conclude on the issue of whether the act of the Appellant was in bad faith or abuse of office in order to make it fall under the exception to the application of the limitation law. The Supreme Court rather referred to the holding of the Court of Appeal which reads thus:
Assuming that the appellants had that statutory cover of the Public Officers Protection Act, it has to be restated at the risk of over flogging a legal principle that certain factors would debar that operation of the Act. Abuse of office will deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers (Protection) Law, is use of power to achieve ends other than those for such power was granted, for example, for personal gain or to show undue favour for another or to wreak vengeance on an opponent.[35]
Upon the foregoing holding, the Supreme Court held that the learned Justices of the court below (Court of Appeal) were right in holding that the Appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the Respondents.[36]
Before the reference to the holding of the Court of Appeal in relation to abuse of office, the Supreme Court had earlier posited that:
There is no doubt, a careful reading of the respondents’ 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.[37]
In view of the two conclusions reached, it means the Supreme Court held that the suit was not statute barred for two unconnected reasons. The first, being that the suit is one of contract of service and that the Public Officers Protection Act does not apply to cases of contract. The second reason being that the Act will not apply where there is abuse of office or where the act is done in bad faith.
Notwithstanding the two reasons, what is amiss with due respect is the elaboration as to how the act of the Appellant was in bad faith or abuse of office. The elaboration would have made it easy for other lower courts to ascertain when to apply the exception in deserving cases. Also, what was said to have been settled that POPA does not apply to cases of contract was initially settled by exclusion of contract of service which arises from contract of employment. In other words, the instant decision has simply created a new twist to what was initially settled.
The effect of the new twist played out in recent unreported case of Margret Ezeagwu v Nigerian Ports Authority[38] wherein the National Industrial Court Judge, Hon. Justice N.C.S Ogbuanya, relied on the Supreme Court decision in N.R.M.A. & F.C. v Johnson to hold in a ruling delivered on the 30th of May, 2019 that the new position of the law is that the Public Officers Protection Act no longer applies to contract of service.
Before coming to the conclusion, the learned Judge traced the evolution of the application of Public Officers Protection Act and found that the initial position was for the Public Officers Protection Act to apply to employment contract claims as same was excised out of the category of contracts where statutes of limitation in the likes of POPA were held to be inapplicable.
The foregoing indicates that in view of the principle of stare decisis and the legal concept of judicial precedent, all subordinate courts to the Supreme Court which in this instance is the Court of Appeal and the coordinates courts, particularly, the National Industrial Court are now bound to hold that Public Officers Protection Act does not apply to contract of service.
It must be mentioned that notwithstanding the fact that there are existing decisions that subjects contract of service to the operation of Public Officers Protection Act, the recent decision will hold sway as it has been settled that where there appear to be conflicting judgments of the Supreme Court, the latter or the latest will or should apply and must be followed if the circumstances are the same.[39]
- The Socio-Economic Implication of the Current Position of the Law
In order to avoid a misconstruction, what this paper intends to expose via the discussion of the socio-economic implication of the current position of the law as deduced from the decision of the Supreme Court is how the labour society begins to react or adjust their actions in relation to labour related cases now that there is no time limit for bringing an action arising from a contract of employment involving public officers. Particularly, what manner of adjustment will the employer and employee make or should make in view of the decision of the Supreme Court.
There is no gainsaying that the decision is favourable to the employee but not for the employer. Notwithstanding the beneficiary of the decision, a behavioral change can be triggered as the employers in the public sector now need to exercise caution in dealing with the contract of service of employees. In addition to behavioral change, there is an economic aspect to the decision which perhaps has not been considered by the court.
In addressing the socio-economic implication of the current position of the law, this paper places a focus on the fact that Supreme Court specifically mentioned the Public Officers Protection Act, which should mean that only the Public Officers protection Act and other laws with similar provisions which attempts to protect public officers are excluded from limiting the period of instituting cases based on contract of service which involves public officers.
In the same vein, it should be borne in mind that employers who are creation of statutes are considerable as public officers as earlier discussed and they are the ones whom the Public Officers Protection Act as a federal statute seeks to protect.
To be more specific as it relates to socio-economic implication, it should first be borne in mind that the remedies obtainable in cases of contract of employment with statutory flavor is that where the court finds that a termination or dismissal was null and void, the court can order a reinstatement and payment of salaries owed to the dismissed employee.
The implication is different under a contract of service arising from a master-servant relationship and the court reckoned this distinction in the case of Benin Electricity Distribution Company Plc. v. Esealuka[40] where the court held that:
There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement.[41]
Bearing the foregoing authority in mind, it now means that where an employee is dismissed from employment by a government agency which is created by statute and which qualifies as a Public Officer, behaviorally, the employee can wait for as long as he desires, even if it is five years, before instituting an action based on such contract of service.
The economic aspect is that the employee can take time in instituting the action knowing that where the court finds the dismissal as unlawful, an order of reinstatement can be made along with an order for payment of salaries for all the periods for which there was no work. In other words, the employee would earn monies for work not done although the original basis is no fault of the employee, but the employee could have taken advantage of the law by unduly delaying the institution of the suit.
There are cases where the employees have delayed for two to five years. For instance in the unreported case of Adeniyi Olusola Ojongbde v Independent Corrupt Practices And Other Related Offences Commission,[42] the Court in a ruling delivered on the 22nd of June, 2018 found that the cause of action in the said case arose on the 8th of December, 2009 while the suit was commenced on the 1st of July, 2015 making it five years and seven months after the accrual of cause of action.
In an earlier case of Kasim v. NNPC & Anor,[43] the Court of Appeal reckoned that the Claimant delayed for 8years when it held that:
On this clear evidence in the case it is evident that the Respondent’s appointment had been terminated since August 1984. He should have instituted action within six years of that date. He waited for more than 8 years before he commenced this action in 1992. From 1984 he had no salaries accruing to him from the Appellant. Even if the challenge is to the validity of the termination of his appointment he should have commenced action within six years allowed by section 8(1) of the Limitation Law of Lagos State.[44]
Bearing the recent authority of the Supreme Court in mind, such cases of wrongful or unlawful termination brought after 8years would still gain audience in court being that actions arising from contract of service can no longer be statute barred and such employees of a statutory body would be entitled to reinstatement with salaries for all the periods he was out of work where the termination is indeed found to be void.
Although one cannot be unmindful of the fact that several factors can be responsible for delay in instituting actions in court such as paucity of funds to obtain legal representation, however, the long delay takes one back to the rationale for the stipulation of time limit as earlier reckoned by the Supreme Court.
- A Call for Review of Statute and Case law.
The call for review of the laws regulation the operation of statutes of limitation, particularly the Public Officers Protection Act streams from the rationale which the Courts have recognized as the reason for the enactment of such statute.
Also, the background to the call for review is the rate at which the Public Officers Protection Act is now invoked in defence to labour related cases. While the Courts have always held that the Public Officers Protection Act can operate to bar a suit in relation to termination of employment which is not instituted within three months, the recent position of the Supreme Court means that cases of wrongful termination or dismissal involving statutory bodies can now be instituted at any given time without limitation.
In the same vein, it should be borne in mind that a body that can hire can also terminate an employment and though the termination may have been done, legitimately and within the ambit of the law, the person affected may consider it otherwise.
Consequently, the call for review takes into account the fact that though the Public Officers Protection Act was enacted to avoid elongated distraction of public officers from public duty and same is the reason why the period of instituting an action against public officers are limited. It is reckoned that the Act is long overdue for amendment in view of the socio-economic changes that has since evolved within the legal regime of the Country and the quagmires which the Act has generated over the years in the adjudicatory process. The latest of the quagmires being the recent decision of the Supreme Court which is to the effect that the Public Officers Protection Act is inapplicable in all circumstances of a case involving contract of service.
In the light of the foregoing, the amendment of the Public Officers Protection Act should take into account the period of limitation which is currently put at three months. The review should also make for an unambiguous provision on acts or transactions to which the Act applies and those to which it does not. For the sake of clarity, it is ideal to reproduce the operative section of the Act which reads thus:
- Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution, or proceeding shall not be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
There is no gainsaying that a lot has been made out of the foregoing provision by way of interpretation in view of the fact that the only clear and unambiguous aspect of the provision is the period of limitation put at three months. Although the act is intended to cover acts done in pursuance of or in execution or intended execution of any Act or Law, it should be considered that there are several Acts and Laws governing several transactions. This makes for an interpretive exercise which has produced uneven results.
Furthermore, with regards to who is protected by the Act, it took the Supreme court to interpret that the Act also includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated.[45]
It should be borne in mind that the Public Officers Protection Act is over a century year old as the Act was first enacted in 1916 to replace the English Statute of General Application known as Public Authorities Protection Act, 1893.[46] Since the said 1916, the period allowed for prosecuting cases against public officers had remained three months. The period has never been elongated despite the fact that several cases manifested the insufficiency of the allotted period. For instance, in the case of Obiefuna v Okoye,[47] the plaintiff could not prosecute a case within the three months against the driver of a police Truck who knocked him down because he was hospitalized for some time. Also, in Ekeoga v Aliri,[48] the plaintiff was injured in the eye by her public school class teacher and she went through different hospitals for treatment till the three months passed and after which she lost the eye. Her suit was not entertained for being statute barred.
With regards to contract of employment, the case of Adigun v Ayinde,[49] is another case where the Plaintiff can be said to have suffered the harsh consequence of statute of limitation. In the said case, the Plaintiff who was an employee of the Federal Ministry of Agriculture sustained injury arising from an accident which occurred in the course of work. In treating the injury, he was moved from one hospital to another until he ended up in an hospital in the UK. After three years, he was paralysed from waist downwards. It was after the third year of sustaining the injury that he instituted a case which was held to be statute barred.
Although the injustice in the foregoing cases is not oblivious, yet the courts are often times helpless in view of the need to apply the literal interpretation of the Act and in such cases, only the legislative arm of government can amend the law to address the injustice and inadequacies.
In addition, it is the clarity of the law that can take away the inconsistencies of interpretation and application of the statutes of limitation particularly the Public Officers Protection Act.
In the light of the foregoing, the call for review by this paper should take into consideration the following highlight of recommendations to wit:
- The appropriate lawmakers should amend the Public Officers Protection Act and other similar statutes of limitations to capture the transactions to which it applies and those to which it does not apply. This is to make parties decide whether or not to pursue a case upon the consideration of the subject matter when the period has elapsed. In view of this recommendation, while the courts have reckoned that contracts are excluded from the operation of the Public Officers Protection Act, the amendment should take cognizance of the unique nature of a contract of service which is sui generis of other forms of simple contracts such as contract for supply of goods and contract for service.
- Although the Supreme Court recently held that the Public Officers Protection Act does not apply to Contract of Service, this paper nevertheless recommends that the relevant lawmakers should amend the Act to align with the previous Supreme Court decisions which makes the Public officers Protection Act apply to cases of contract of employment especially as it relates to termination of employment. This is in view of the fact that in cases of statutory employment, an employee who is successful upon challenging the termination of his employment can be reinstated and can earn salaries for all the periods he was unlawfully put out of employment even though he was unproductive for such period and no matter how long the period lasts. Bearing the outcome in mind, the absence of limitation can give the employees undue advantage of such unproductive, yet rewarding period.
- Sequel to recommendation ii above, the relevant lawmakers should extend the period of limitation beyond the current three months to about eight to ten months. Whatever the period may be, an elongation is required in view of the dynamic nature of cases to which the act applies and the several inhibitions which a Claimant might encounter in attempt to institute an action.
- The relevant lawmakers should incorporate into the amended statute, the position of the Court to the effect that the Public Officers Protection Act is inapplicable to claims for salaries, gratuity and pension. The said position of the Court is valid and justice oriented hence should be expressly provided in the statute.
This paper has made attempt at exposing the myriad of issues arising from the use of statute of limitation to limit the period when a person whose civil right has been violated to access the court for redress.
Although statutes of limitation varies in operation, emphasis was clearly placed on the Public Officers Protection Act. The operation and exceptions to the application of the Act was duly considered and in that light it was found that in relation to contract of employment, both the legislature and the Judiciary need to take a review at the operation of the Act.
In the light of the call for review, there is no gainsaying that the decision of the Supreme Court remain binding until same is reversed. However, the Learned Justices are well aware that justices of the Court are final not because they are infallible and being humans, there is a chance that the decision in N.R.M.A. & F.C. v. Johnson may have been made without an evaluation of all the socio-economic appendages of the decision and the impact it will have on other cases yet to arise.
Consequently, it is urged upon the Judiciary and respective Legislatures to take into account the recommendations made in this paper, make a proper reevaluation of the issues and re-navigate the course of justice as it relates to the operation of Public Officers Protection Act vis-à-vis its implication on contracts of service.
[1] Section 6 (6) (b), Constitution of Federal Republic of Nigeria 1999 (as amended).
[2] Madaki v. Governor Nasarawa State & Ors (2011) LPELR-5115(CA)
[3] Ugwu v. Ararume (2007) ALL FWLR (Pt. 377) 807 at 865 Paras. G- H (SC)
[4] (2019) 2 NWLR (Pt. 1656) SC 247
[5] Okito v. Obioru (2007) ALL FWLR (Pt. 365) 568 at 579 Paras. D – E (CA)
[6] Cap P41 Laws of the Federation of Nigeria (LFN) 2004
[7] (2020) LPELR-49565.
[8] Ibid. Per Ejembi eko, JSC (pp. 5-6 para. C-D)
[9] Section 8, Limitation Law of Lagos State
[10] Section 8 (1) of Limitation Act (operative in Abuja) and section 9 of Limitation Law of Lagos.
[11] Section 9 of Limitation Act (operative in Abuja) and section 10 of Limitation Law of Lagos.
[12] Section 16 of Limitation Law of Lagos.
[13] (1990) 14 NWLR (part 584) 1 at page 7 ratio 7
[14] (2015) LPELR-24736(SC)
[15] Ibid. Per OKORO, J.S.C.
[16] B.A. Garner, (ed.) Black’s Law Dictionary (10th Edition, West Publishing, 2014) p.1968
[17] (2011) LPELR-3928(CA).
[18] Ibid. Per EKO, J.C.A. (P. 24, paras. A-B)
[19] (2012) 11 NWLR (Pt.1310) p.146
[20] See Archianga V A.G. Akwa Ibom State (2015) 6 NWLR (PT. 1454) 1 at 55 para F-H per Garba JCA.
[21] Supra.
[22] (2013) LPELR-22105(CA)
[23] Ibid. Per GARBA, J.C.A. (Pp. 29-31, paras. F-A)
[24] supra
[25] Section 8, Limitation Law of Lagos State
[26] (2015) 5 ACELR 106
[27] (2009) LPELR-8870(CA)
[28] Ibid. Per Nwodo, J.C.A. (Pp.21-22, Paras. A-B).
[29](2013) 32 NLLR (Pt.91) 63 NIC
[30]Ibid. Per Kanyip. J. (now PNICN)
[31] (2019) 2 NWLR (Pt. 1656) 247.
[32] Ibid. page 269, para. H
[33] Ibid. page 269, para. A –B
[34] Ibid. page 270, para. D
[35] Ibid. page 270 – 271, para. G – A
[36] Ibid. page 271, para. B – C
[37] Ibid. page 270, para. F
[38] Suit: NICN/ABJ/118/2017
[39] Osakwe v Federal College of Education (Technical), Asaba (2010) 10 NWLR (Pt.1201) 1 at 37
[40] (2013) LPELR-20159(CA)
[41] Ibid. Per Ogunwumiju, J.C.A. (as she then was) (Pp.32-33, Paras.B-F)
[42] Suit NICN/ABJ/206/2015
[43] (2012) LPELR-22369(CA)
[44] Per ORJI-ABADUA, J.C.A. (Pp. 38-40, paras. F-E)
[45] Alhaji Aliyu Ibrahim vs. Judicial Service Committee, Kaduna State & Anor (1990) 14 NWLR (part 584) 1 at page 7 ratio 7.
[46] Valentine B. Ashi. ‘Limitation of Actions Under the Public Officers Protection Act: Evaluation of Jus Dicere and The Poverty of the Declaratory Theory of Judicial Methodology’. Nigerian Current Law Review. 2007 -2010. P.257
[47] (1961) 1 ALL NLR 35
[48] (1991) 3 NWLR (Pt.179) 258
[49] Adigun v. Ayinde & Ors. (1993) 8 NWLR 516.
