3PLR – AGBOOLA V. SAIBU

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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AGBOOLA

V.

SAIBU

COURT OF APPEAL

(KADUNA DIVISION)

WEDNESDAY, 5TH DECEMBER, 1990.

SUIT NO. CA/K/30/90

3PLR/1990/11 (CA)

 

OTHER CITATIONS

2 NWLR (Pt. 175) 536.

 

BEFORE THEIR LORDSHIPS  

JOSEPH DIEKOLA OGUNDERE, J.C.A. (Presided)

ALOMA MARIAM MUKHTAR, J.C.A.

YEKINI OLAYIWOLA ADIO, J.C.A. (Read the Leading Judgment)

 

BETWEEN

1. S.D. AGBOOLA (DIRECTOR, NIGERIAN STORED PRODUCTS RESEARCH INSTITUTE)
2. NIGERIAN STORED PRODUCTS RESEARCH INSTITUTE
3. FEDERAL MINISTRY OF SCIENCE AND TECHNOLOGY

AND

1. GABRIEL SAIBU
2. ZACCHEUS BEGUN ADENIYI

 

REPRESENTATION

1. Olanipekun, Esq. – for the Appellants
2. Asanga, Esq. – for the Respondents.

 

MAIN ISSUES

EMPLOYMENT AND LABOUR LAW:- Claim for wrongful dismissal – Whether basis is in contract alone and not tort – Whether action to be brought against the employer alone

EMPLOYMENT AND LABOUR LAW – DETERMINATION OF EMPLOYMENT:- Claim for wrongful termination of statutory employment – Necessary parties – Relevant considerations

EMPLOYMENT AND LABOUR LAW – DETERMINATION OF EMPLOYMENT:- Claim for wrongful termination of employment against a statutory employee– Effect of the Public Officers Protection Act on such proceedings – Liability of officers of a statutory body established pursuant to a statute or its  supervising Ministry/Minister

GOVERNMENT AND ADMINISTRATIVE LAW:- Public Officers Protection Act – Definition of Officer – Purpose of – Nature of protection conferred – Limitation period outside of which a suit may not be brought against a public officer – What public officer needs to show – Existence of power to exercise such authority complaint against – Where there was neglect or default in the execution of such authority – Whether is a different matter for which, in appropriate cases, protection may be claimed under Section 2(a) of the Public Officers Protection Act, Cap.168

GOVERNMENT AND ADMINISTRATIVE LAW:- Public Officers Protection Act – Protection offered under the Act – Whether covers public officers as individuals and will not as an institution/statutory bodies

GOVERNMENT AND ADMINISTRATIVE LAW:- Public Officers Protection Act –Exceptions under the act for which actions may be brought against a public officer outside of the limitation period – Where it has been shown or established that a public officer did what he did in execution of a public duty or authority – Whether action is statute-barred and there will be no legal basis for prying into the conduct of the public officer which gave rise to the action – Whether proof of malice, ulterior motive and other extraneous matters, such as “private interest” does not deprive a public officer protection under Section 2(a) of the Public Officers Act

GOVERNMENT AND ADMINISTRATIVE LAW:- Public Officers Protection Act – Only ground for denying a public officer protection under Section 2(a) of the Public Officers Protection Act – Whether proof that what s/he did was con­trary to or unauthorised by law or was not pursuant to execution of any pub­lic duty or authority

GOVERNMENT AND ADMINISTRATIVE LAW – LEGAL STATUS OF A FEDERAL MINISTRY:- Whether a Federal Ministry is a juristic person which can sue or be sued – Whether a federal Ministry headed by a Minister which can by order establish juristic bodies is deemed to own such bodies as to be sued along with any of the bodies

EDUCATION AND LAW – RESEARCH INSTITUTES:-  Where established by orders made by a competent authority and vested with powers of a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name – Effect – Legal competency to acquire and develop necessary physical and human infrastructure

EDUCATION AND LAW – RESEARCH INSTITUTES – NIGERIAN STORED PRODUCTS RESEARCH INSTITUTE:- Powers as a body established by order of the appropriate Minister under Section 1(1) of the National Science and Technology Act, 1990, No. I of 1980

PRACTICE AND PROCEDURE – EVIDENCE – AFFIDAVIT EVIDENCE:- Averments not disputed or traversed via a counter-affidavit – Whether admitted and not in controversy or in dispute

INTERPRETATION OF STATUTE – PUBLIC OFFICERS PROTECTION ACTION:- under Section 2(a) of the Public Officers Protection Act – How interpreted

CHILDREN AND WOMEN LAW:- Young People and Justice Administration – Burglary of a home secured by paid security operatives – Allegation that son of home owner had access to the home at relevant period – Whether admissible as defence in claims for wrongful termination arising therefrom – How treated

 

 

MAIN JUDGMENT

ADIO, J.C.A. (Delivering the Leading Judgment):

The 1st and 2nd respon­dents used to be a watchman and a head watchman, respectively, of the 2nd appellant. During a certain period they (respondents) were the security guards at the residence of the 1st appellant who was the Director and Chief Executive of the 2nd appellant. Sometime during the said period, the 1st ap­pellant alleged that, though the respondents were on official duty guarding his (1st appellant’s) residence, thieves broke into his (1st appellant’s) resi­dence in the night and stole some goods. The respondents were, at first, sus­pended and were later dismissed from the service of the 2nd appellant. The respondents instituted an action in the Kwara State High Court, sitting at Ilorin, in which they claimed, inter alia, as follows:­

1. a declaration that the purported suspension and dismissal of the plaintiffs by the defendants vide their letter Ref. No.S.P.R.P.1125/1/94 Ref.SPRP.1136/1/46, Ref.SPRP.1125/1/ 95 and Ref.SPRP.1136/1/95 respectively are unconstitutional, il­legal, irregular, ineffective, invalid, null and void.
2. an order setting aside the said purported suspension and dismis­sal of the plaintiffs.
3. a declaration that the plaintiffs continue and are still in the per­manent employment of the defendants particularly the 2nd defendant and entitled to:

(i)      continue in the services of the 2nd defendant until their re­tiring age in 2017 A.D.

(ii)     benefit from the University salary scale (USS) currently in use within the 2nd defendant.

(iii)    be paid all their emoluments and perquisites from June 1988 untill judgment date.

ALTERNATIVELY

(iv)    be paid a sum equivalent to their respective emoluments for the un-expired period between June, 1988 and June, 2018/ 2017 respectively when they would have each attained re­tirement age­

1. General damages limited to sixty thousand Naira (N60,000.00).”

 

The Statement of Claim of the respondents is at pages 3 to 7 of the re­cord of proceedings. The appellants filed three applications seeking for an order, in each case, striking out the names of one or the others of the appel­lants from the suit. The grounds upon which the applications were based in the case of the 1st, 2nd and 3rd appellants were as stated in paragraphs (a), (b) and (c), respectively, hereunder:­

“(a)    that this action was not commenced against him (the 1st defen­dant) within a period of 3 months after the termination of the plaintiffs appointment on 14/7/88.

(b)     that this action was not commenced against it (the 2nd defen­dant) within a period of 3 months after the termination of the plaintiffs’ appointment on 14f1/88.

(c)     that it (3rd defendant) is not a juristic person.”

 

Copies of the applications and other relevant papers, in the cases of the 1st, 2nd and 3rd appellants are at pages 10-13, 17-21, and 14-16, respec­tively, of the record of proceedings. The application relating to each of the appellants was supported by an affidavit. In the case of the 1st and 2nd ap­pellants it was deposed in the affidavit that the 1st appellant was a public of­ficer, that the letter dismissing each of the respondents was written in July, 1988, and that the respondents instituted the present action challenging their dismissal on the 11th April, 1989, and a copy each of the letters of dismissal dated 14th July, 1988, was attached to the affidavit. There was no counter­ affidavit.

 

The respondents averred in their Statement of Claim, inter alia that they did not notice or observe anything unusual in the night of 22nd June, 1988, that, it was alleged, that thieves broke into and stole certain things from the residence of the 1st appellant. However, with their co-operation, one of the children of the 1st appellant went out of and returned to the resi­dence of the 1st appellant late in the night of that day. It was further alleged, in the Statement of Claim, that the respondents were not given an opportun­ity to make representations in relation to the allegation of negligence made against them.

 

The learned trial Judge, after due consideration of the applications, which he heard together, dismissed them in his ruling dated 14th February, 1990, a copy of which is at pages 32 to 42 of the record of proceedings. He held that section 2 of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation of Nigeria did not protect the 1st and 2nd appellants. He also held that a body like the 3rd appellant that had certain powers could be sued. Dissatisfied with the ruling, the appellants have appealed to this court. The notice and the grounds of appeal are at pp.43 to 47 of the record of proceedings. The grounds of appeal, without their particulars, are as fol­lows:­

“(1)   The learned trial Judge erred in law in holding that 1st defendant/ appellant is not protected by the provisions of section 2 of the Public Officers Protection Act, Cap.168 of the Laws of the Fed­eration of Nigeria.

(2)     The learned trial Judge misdirected himself in law and thereby came to a wrong conclusion by holding that the provisions of the Public Officers Protection Act, Cap. 168 of the Laws’ of the Fed­eration of Nigeria do not apply to the 2nd defendant.

(3) .   The learned trial Judge misdirected himself in law thereby came to a wrong conclusion by holding that the 3rd defendant is a juris­tic person.

(4)     The learned trial Judge erred in law by not striking out the plain­tiffs’ case.

(5)     The learned trial Judge misdirected himself in law by his not dis­charging or striking out the 2nd and 3rd defendants from the suit after holding that the 1st defendant’s action was a pursuit of a private interest.

(6)     The ruling of the learned trial Judge is against the weight of evi­dence.”

 

In accordance with the rules of this court, the parties duly filed and ex­changed briefs. When the appeal came up for hearing before us the counsel for each party adopted and relied on the appellants’ brief and the respon­dents’ brief, as the case might be. They also made oral submissions to us in amplification of the points made in the briefs. There were six issues iden­tified for determination in the appellants’ brief and there were five in the re­spondents’ brief. In my view, four of the issues identified for determination in the appellants’ brief are sufficient and comprehensive enough for the de­termination of this appeal. The four issues are as follows:

“(1)   Whether the 1st appellant was protected by Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Fed­eration of Nigeria.

(2)     Whether the 2nd appellant was protected by Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Fed­eration of Nigeria.

(3)     Whether the 3rd appellant was a juristic person that can sue or be sued.

(4)     If the answer to issue (1) above is in the affirmative, whether upon the name of the 1st appellant being struck out, the action is maintainable against the 2nd and 3rd appellants or as against the 2nd and 3rd appellants only the action did not become impro­perly constituted and should have been struck out.”

 

The question raised under the first issue is whether the 1st appellant was protected by Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation of Nigeria. It is necessary, for the purpose of the issues involved, to set out the provisions of section 2(a) of the Act. They are as follows:­

“2.     Where any action, prosecution, or other proceeding is com­menced against any person for any act done in pursuance or execution of any law or of any public duty or authority or in re­spect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:­

 

(a)     the action, prosecution or proceeding shall not lie or be in­stituted unless commenced within three months next after the act neglect or default complained of. or in the case of a continuance of damage or injury within three months after the ceasing thereof.”

 

In the affidavit in support of the application of the 1st appellant for an order striking out his name from the suit, he deposed, inter alia, that he was a public officer in the Federal Civil Service working as the director of the 2nd appellant, that the present action was based solely on the letters of dismissal dated 14th July, 1988, which were written on the aforesaid date, that the aforesaid letters were official documents written in the course of official duties, and that Writ of Summons in the case was issued on the 11th April, 1989. No counter-affidavit, disputing the matters deposed to in the 1st ap­pellant’s affidavit, was filed by any of the respondents. It can, therefore, be prima facie, assumed that the matters deposed to in the 1st appellant’s af­fidavit were not in controversy or in dispute. There was, in fact, no dispute on the question whether the 1st appellant was a public officer or on the state­ment that the offending letters were written to the respondents on the 14th July, 1988 and that the Writ of Summons was issued on the 11th April, 1989, a period of more than three months specified or prescribed in section 2(a) of the Act. The main issue, in this connection, was whether the 1st appellant who wrote the offending letters of dismissal to the respondents did so in pur­suance or execution of any public duty or authority. The learned trial Judge, in his ruling, on the point, said, inter alia, as follows:­

“First, it is to be noted that Mr. Asanga’s reply was silent on the first leg of the argument that the action against the first defendant is statute-barred. We accept, that the first defendant is a public officer. Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation, 1958 provides protection against any action … The salient question is whether or not the first defendant was as such a public-officer so performing in the execution of such a pub­lic duty or authority. The whole matter centres on the sensitive domestic affair of the 1st defendant whose personal property to wit electronic gadgets were allegedly stolen. Unfortunately some accusing fingers were pointed at his own son and that much was known to the police who handled the investigation …

It, therefore, appears, all the more, to be a pursuit of a private in­terest than an execution of a public duty … In conclusion, I hold that the action against the first defendant is not statute-barred.”

 

The submission in the appellants’ brief was that it was wrong for the learned trial Judge to conclude that the 1st appellant’s action was in pursuit of private interest. It was also submitted, for the 1st appellant, that motive was not relevant to the issue under consideration. The argument in the re­spondents’ brief was that the learned trial Judge came to a correct conclusion having regard to the Statement of Claim and the retrospective nature of the letters of dismissal addressed to the respondents by the 1st appellant.

 

The learned trial Judge appeared to have allowed the allegation about the son of the 1st appellant, with the co-operation of the respondents, going out late in the night and returning in the early hours of the following day and the alleged suspicion of the said child being involved in the burglary of the residence of the 1st appellant to becloud the main and relevant issue. The av­erment in paragraph 3 of the Statement of Claim was that the 1st appellant was the director and Chief Executive of the Nigerian Stored Products Re­search Institute, the 2nd appellant. The respondents were on duty at the re­sidence of an official of the 2nd appellant when the house of the official was allegedly burgled. Even if, as the respondents maintained, they did not know how the alleged burglary could have occurred, there was still the ques­tion of the respondents, without the knowledge of the 2nd appellant’s offi­cial allowing a child of the said official to go out of the residence of the offi­cial late in the night and to return there in the early hours of the following day. The relevant issue, which the learned trial Judge should have resolved, was whether having regard to all the circumstances of the case, including those mentioned above, the 1st appellant could in exercise of his disciplinary authority over the respondents do what he did. The conclusion to which he would have come was that the 1st appellant, as the Director and Chief Executive of the 2nd appellant, could exercise such authority. Whether there was neglect or default in the execution of such authority is a different matter for which, in appropriate cases, protection may be claimed under Section 2(a) of the Public Officers Protection Act, Cap.168.

 

Where it has been shown or established that a public officer did what he did in execution of a public duty or authority, the main issue is whether the action is barred by Section 2(a) of the Public Officers Protection Law in the sense that the action was or was not brought within the period of three months prescribed in the Act. If the action is statute-barred there will be no basis for prying into the conduct of the public officer which gave rise to the action. See Egbe v. Adefarasin & Anor. (No.]) (1985) 1 N.W.L.R. (Pt.3) 549. Malice, ulterior motive and other extraneous matters, such as “private interest” which, according to the learned trial Judge deprived the 1st appel­lant of protection by Section 2(a) of the Act, are completely irrelevant. The approach of the learned trial Judge to the interpretation of the provisions of the section was erroneous in that it is wrong to import words which do vio­lence to the intent and meaning of the Act or to read into it an exception which the Act did not express and which would have the result of depriving the persons intended to be protected of the protection. See Egbe v. Alhaji (1990)1 N. W.L.R. (Pt.128) 546. A public officer is not protected by Section 2(a) of the Public Officers Protection Act only where what he did was con­trary to or unauthorised by law or was not pursuant to execution of any pub­lic duty or authority. See Inspector-General of Police v. Olatunji (1955) 21 NLR 52; and Nwankwere v. Adewunmi (1967) NMLR 45.

 

The answer to the question raised in the first issue is in the affirmative. The 1st appellant was protected by Section 2(a) of the Public Officers Pro­tection Act, Cap. 168 of the Laws of the Federation of Nigeria.

 

The question raised under the second issue is whether the 2nd appellant was protected by Section 2(a) of the Public Officers Protection Act. The learned trial Judge, after citing Momoh v. Okewale & Anor. (1977) 6 S.C.81 came to the conclusion that the Act protected only individual public officers and not bodies like the 2nd appellant. The submission in the appellant’s brief was that if the provision of Section 2(a) of the Act would protect a Perma­nent Secretary it would also protect a body like the 2nd appellant. After cit­ing Appeal No. CA/K/55/88-Ibrahim v. Civil Service Commission of Kaduna State & Anor. in which this court, (Kaduna Division) held that the Civil Ser­vice Commission of Kaduna State was protected by the Act, it was submitted that as the learned trial Judge was bound by the decision of this court, he erred in holding, as he did, that only individual public officers were pro­tected by the Act. In Momoh’s case (supra), section 2 of the Public Officers Protection Law which was in pari materia with Section 2 of the Public officers Protection Act was considered in an action brought against the Lagos City Council and one of its employees. Udo Udoma, J.S.C. (as he then was) held that unlike the English Public Authorities Protection Act, 1893, which pro­tected public authorities, the Public Officers Protection Act, Cap. 168 of the Laws of the Federation of Nigeria was aimed at protecting public officers as individuals in the discharge of public duties. As the judgment in Momoh’s case (supra) was the judgment of the Supreme Court, it can be argued that it was permissible for the learned trial Judge to follow it. The answer to the question raised in the second issue is in the negative. The Public Officers Protection Act protects public officers as individuals and will not protect the 2nd appellant, an institution.

 

The question raised under the third issue is whether the 3rd appellant was a juristic person that can sue and be sued. The learned trial Judge held that the 3rd appellant could sue and be sued. In this connection, he stated, inter alia, as follows:­

“It sound a far cry that a Federal Government Ministry created and charged with specific responsibility and, as it were, owning institutions of research which also owned property with its own labour force will turn round to say that it cannot be sued for the wrongful dismissal of its staff.”

 

The submission in the appellants’ brief was that the 3rd appellant was not a juristic person who could sue and be sued. The respondents’ submis­sion was that the 3rd appellant that could own property, employ servants and inflict injury had capacity to sue and be sued. The 3rd appellant is not a natural person. There was no indication in the ruling of the learned trial Judge of the property, owned by the 3rd appellant or information as to the legal or factual basis that the 3rd appellant owned institutions of research. The real position is that research institutes, like the 2nd appellant, are estab­lished by orders made by the appropriate Minister under Section 1(1) of the National Science and Technology Act, 1990, No. I of 1980. Any institute es­tablished under the provision of the section is, according to Schedule 1 to the Act, a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. Such an institute has power to acquire and hold property and any interest in land. Its governing board appoints employees other than the Director who is appointed by the appropriate Minister. Therefore, an employee of an institute, like the respondents, who is aggrieved by anything done or omitted to be done by the institute or its employee in relation to his employment may, if he so desires, sue the insti­tute or its employee in question. There is nothing in the Act to the effect that the 3rd appellant owned an, institute established under section 1 of the said Act. The reasons given by the learned trial Judge, quoted above, for holding that the 3rd appellant should be clothed with legal personality and with the power to sue and be sued can, therefore, not be sustained. The 3rd appellant is not, a juristic person that can sue and be sued. See Agbonmagbe Bank Ltd. v. General Manager, G. B. Ollivant Ltd. (1961) 1 All N.L.R.116; Fawehinmi v. Nigerian Bar Association (No. 2) (1989) 2 N.W. L.R. (Pt. 105) 558. The answer to the question raised in the third issue is in the negative.

 

The question raised under the fourth issue is that if the answer to the issue (1) above is in the affirmative, whether upon the name of the 1st appel­lant being struck out, the action was maintainable against the 2nd and 3rd appellants or whether, as against the 2nd and 3rd appellant only, the action did not become improperly constituted and should have been struck out. The appellants’ submission was that upon the name of the 1st appellant being struck out, no cause of action was maintainable against the 2nd and 3rd appellants. The submission in the respondents’ brief was that if the name of the 1st appellant was struck out, the action could still continue against the 2nd and 3rd appellants. I think that there is substance in the submission in the respondents’ brief in so far as the 2nd appellant is concerned. The learned trial Judge should have struck out the name of the 1st and 3rd appel­lants from the suit for the reasons already stated by me when dealing with the questions raised in the first and third issues. It does not necessarily follow that the striking out of the name of the 1st appellant necessarily involves or warrants the striking out of the name of the 2nd appellant from the suit. The action was not in tort. Therefore, it is maintainable against the 2nd appel­lant, the employer, alone. Upon the striking out of the name of the 1st appel­lant the action did not become improperly constituted as against the 2nd ap­pellant.

 

The appeal succeeds only in relation to the 1st and 3rd appellants. The ruling of the lower court dismissing the preliminary objections, in so far as it related to the applications of the 1st and 3rd appellants, is hereby set aside.

 

In its place is substituted an order striking out the respondents’ claim against the 1st and 3rd appellants., The case is remitted to the lower court for proceedings to continue in relation to the claim against the 2nd appellant. There is no order as to costs.

 

 

OGUNDERE, J.C.A.:

I have had the privilege of preview of the lead judg­ment of my learned brother, Adio, J.C.A., and I am in complete agreement with his reasoning, conclusions and orders made therein.

 

 

MUKHTAR, J.C.A.:

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Adio, J.C.A. I am in full ag­reement with his reasoning and conclusion and also allow the appeal and abide by the orders made in the lead judgment.

 

Appeal of 1st & 3rd appellants allowed.

 

Appeal of 2nd appellant dismissed.