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Idongesit Udom V. National Business And Technical Examination Board & Registrar, Chief Executive (NABTEB) (CA/B/132/2012 ·  2 Apr 2014)

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➥ CASE SUMMARY OF:
Mr. Idongesit Udom V. National Business And Technical Examination Board & Registrar, Chief Executive (NABTEB) (CA/B/132/2012 ·  2 Apr 2014)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Juristic personality;
Statute barredness;
Public officer.

➥ CASE FACT/HISTORY
On 02/5/2006, the Appellant instituted the said suit in the Lower Court vide a Writ of Summons thereby seeking some declaratory reliefs against the Respondents. By paragraph 50 of the statement of claim thereof, filed along with the Writ of Summons, the Appellant has sought against the Respondents, the following reliefs: (a) A declaration that (h)is termination was unlawful, wrongful and against regulations governing the service of his appointment. (b) An order of reinstatement of his appointment. (c) Payment of his salary from 15th July, 2004 date (d) General damages of N2 million against the defendants jointly and severally.

The instant appeal is against the ruling of the Federal High Court, Benin Judicial Division, holden at Benin City on March 5, 2010 in Suit No. FHC/B/CS/75/2006. By the ruling in question, the Lower Court, coram, M. B. Idris, J; dismissed the Appellant’s Suit for lack of jurisdiction. Thus, consequent upon the leave granted thereto, the Appellant filed the notice of appeal thereof on March 12, 2010 against the said ruling.

➥ ISSUE(S)
I. Whether the learned trial judge was right to have raised the issue of statute bar suo motu and considered it in his ruling when the Respondents who raised the issue had withdrawn it before the ruling and the court accepted the withdrawal.

II. Whether the learned trial judge was right to have held that the 2nd Defendant was not a necessary party to this Suit.

➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]

↪️ ISSUE 1: IN APPELLANT’S FAVOUR.

[THE STATUTE BAR ISSUE WAS NOT RAISED SUO MOTO BY THE TRIAL JUDGE
‘However, the fact that Orbih Esq. had purportedly withdrawn the objection thereof regarding the issue of statute bar (Issue No.1), notwithstanding. The Lower Court, in its own wisdom, discountenanced the purported withdrawal, and proceeded to determine all the three issues in question. Most particularly, at pages 267, lines 1 – 11, and 268, lines 3 – 5, of the Record, the court below observed thus: “I must mention that although in their respective submissions, counsel for the plaintiff had argued that the provisions of the Public Officers Protection Act did not apply to contracts, and counsel for the defendants had conceded that point and had withdrawn that arm of his objection to the suit, I shall nevertheless proceed and address that issue in this ruling. This is so because it is now settled that parties cannot by any guise give jurisdiction to courts where none exists. In short, jurisdiction is not amenable as a gift from parties to the courts. Also, parties cannot by their private contract or agreement collude to wrestle away the jurisdiction properly rendered to a court. …In my view therefore, the issues for determination have been laid down by the parties and I shall adopt them as issue and will now proceed to address them seriatim.” I think, I cannot agree more with the above view held by the court below. In my considered view, the Lower Court was absolutely right in discountenancing the withdrawal of the said objection of the Defendant’s counsel in the eleventh hour. Arguably, the withdrawal of the objection by the learned counsel was an afterthought and highly preposterous to say the least. As copiously alluded to above, the issue No. 1 had earlier been argued by the two learned counsel. Thus, it would not be correct for the Appellant’s learned counsel to allege, as he did, that the issue of statute bar was raised by the court below suo motu. As clearly borne out of the record, the Appellant’s right to fair hearing had not in any manner been breached by the court below. This is so because he was accorded every opportunity to canvass his argument regarding the vexed issue of whether or not the suit was statute-barred, with particular regard to the provision of Section 2 of the Public Officers (Protection) Act (Supra).’

Available:  Clifford Ebulue & Ors v. Ejiofor Ezebuo (2018)

THE ACTION IS STATUTE BARRED
‘In the instant case, it is obvious that the action was instituted outside the statutory time limit of three months allowed by the provision of Section 2 (a) of the Public Officers (Protection) Act (Supra). In my view, the Lower Court was right in declining jurisdiction in the circumstance. As the Appellant failed to file the action against the Respondents within the period stipulated by the law, the Suit thereof, was statute-barred.’

NONETHELESS, THE RESPONDENT’S ACT AS A PUBLIC OFFICER WAS ABUSIVE AND THUS FORMS AN EXCEPTION TO STATUTE BARREDNESS
‘In my considered view, the Appellant’s claim has a semblance of issue of abuse of office raised against the Respondents within the purview of the authoritative decision of the Supreme Court in EKEOGU v. ALIRI (Supra), et al. Thus, the court ought to have allowed the suit to proceed to trial to determine the veracity of the Appellant’s pleading. As pointed out above, the law is trite, that the Public Officers (Protection) Act was designed objectively to protect the officer who acts in good faith and does not apply to acts done in abuse of office, with no semblance of legal justification whatsoever. See EKEOGU v. ALIRI (Supra) per Kawu JSC (of blessed memory) @ 19 paragraphs F – G. Thus, in view of the foregoing postulations, there is every cogent reason for me to hold that the first issue ought to be, and same is hereby resolved in favour of the Appellant.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.

[THE 2ND RESPONDENT CAN BE SUED
‘Inarguably, the Act has not expressly conferred upon the 2nd Respondent a right to sue or be sued as unequivocally accorded the 1st Respondent under Section 1 (Supra). However, considering the fundamental functions, powers, duties and responsibilities expressly conferred upon the 2nd Respondent by the Act, the holder of that office is deemed to have been duly imbibed with the power to sue and be sued. My above view is predicated on the well settled principle, that wherein a statute, the legislature has expressly created a body or thing with functions and powers conferred thereupon to own property, or to employ servants, or engage in any act likely to inflict injury on any person or thing, then it must be implied that the legislature has given it the power to sue or be sued in the name thereof.’

Available:  Taiwo Kupolati v. MTN Nigeria Communications Limited (2020)

‘In the instant case, by virtue of NABTEB (Supra), the 2nd Respondent is conferred with the overlord status of being the Chief Executive of the 1st Respondent. Thus, having amply considered the fundamental nature of the functions, powers, responsibilities and obligations conferred upon the 2nd Respondent e.g. the power to execute, the far-reaching policy and the day-to-day administration of the affairs of the 1st Respondent, I cannot but hold the view that in the exercising of such overwhelming powers, functions, responsibilities and obligations, the rights of third parties would necessarily be [adversely] affected. Thus, it would amount to a sheer injustice if such parties (as the present Appellant) cannot seek redress for any wrong done thereto by the 2nd Respondent.’]
.
.
.
✓ DECISION:
‘Hence, having resolved both issues in favour of the Appellant, there is no gainsaying the fact that the appeal is grossly meritorious, and it’s hereby allowed by me. Consequently, the vexed Ruling of the Federal High Court, Benin Judicial Division, delivered on March 5, 2010 by the Hon. Justice M. B. Idris in Suit No.FHC/B/CS/75/2006, is hereby set aside. Consequent whereupon, the suit is hereby remitted to the court below for reassignment by the Hon. Chief Judge of the Federal High Court for trial by another Judge. The Appellant shall be entitled to costs of N50,000.00 against the Respondents.’

➥ FURTHER DICTA:
⦿ COURT SHOULD NOT RAISE ISSUES SUO MOTO AND DETERMINE WITHOUT HEARING PARTIES
I think there is a need to reiterate the trite fundamental principle, that a court must not raise an issue or point, suo motu, without according the respective parties concerned the opportunity of hearing. And the wisdom inherent in that trite fundamental principle is not farfetched. As aptly held by the Supreme Court – “This is to avoid being accused of descending into the arena.” See LEADERS OF CO. LTD v. BAMAIYI (2011) 199 LRCN 185 @ 200 paragraphs EEJJ per Fabiyi, JSC. Thus, flowing from the foregoing trite principle, where a court raises an issue suo motu without according the respective parties the opportunity to address it thereon, any decision thereby reached would tantamount to a nullity. Thus, the said decision is liable to be set aside on appeal. See LEADERS OF CO. LTD v. BAMAIYI (Supra) @ 202 paragraph F. — I. M. M. Saulawa JCA.

⦿ TWO CONDITIONS BEFORE THE PUBLIC OFFICERS PROTECTION ACT CAN AVAIL A PERSON
However, for the provision of Section 2 (a) of the Public Officers (Protection) Act (Supra) to effectively avail any person, there are two conditions that must be satisfied, viz: (i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning. (ii) The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority, or in respect of an alleged neglect, or default of the execution of any such law, duty or authority. See IBRAHIM v. KADUNA STATE JSC (Supra) per Iguh, JSC @ 20. See also JOHN EKEOGU v. ELIZABETH ALIRI (1990) 1 NWLR (pt.126) 345. — I. M. M. Saulawa JCA.

Available:  Chief Saliu Agara & Ors. v. Chief Yinusa Agunbiade & Ors. (2012) - CA

⦿ EXCEPTION TO STATUTE BARREDNESS OF PUBLIC OFFICERS PROTECTION ACT
Instructively, some laid down judicial principles have recognised that in special circumstances and cases, fraud where established would provide a formidable exception to the general rule that time begins to run from the date when the cause of action accrued for the purpose of a limitation law (statute-bar). See AREMO II ADEKANYE (2004) All FWLR (Pt.224) 211 @ 213; ADMINISTRATORS/EXECUTORS v. EKESPIFF (2009) 2 NS QLR 364; OGOH v. ENPEE LTD (2004) 7 NWLR (Pt.903) 44; DUZU v. YUNUSA (2010) LPELR – 8989 (CA) @ 47 – 48 paragraphs F – F per Garba, JCA. One other exception is where the public officer concerned is proved to have acted in abuse of his office with no semblance of legal justification whatsoever. See the case of JOHN EKEOGU v. ELIABETH ALIRI wherein the Apex Court aptly held, inter alia, thus: “The law (i.e. Public Officers Protection Law) is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office with no semblance of legal justification. See (1991) 3 SC NJ 45; (1991) 3 SC 58; (1991) LPELR – 1079 (SC) per Saidu Kawa, JSC (of blessed memory).” — I. M. M. Saulawa JCA.

⦿ WHERE A BODY IS GIVEN FUNCTIONS AND POWERS, IT IS IMPLIED THAT IT HAS POWER TO SUE ABD BE SUED
My above view is predicated on the well settled principle, that wherein a statute, the legislature has expressly created a body or thing with functions and powers conferred thereupon to own property, or to employ servants, or engage in any act likely to inflict injury on any person or thing, then it must be implied that the legislature has given it the power to sue or be sued in the name thereof. — I. M. M. Saulawa JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Mohammed Musa Saulawa, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. E. Okposin, Esq.

⦿ FOR THE RESPONDENT(S)
Chief Ferdinand O. Orbih, SAN and F. E. Ebuehi, Esq.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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