(2016) LPELR-40290(CA)

Transcription

1 LAWAL v. OAU ILE-IFE CITATION: MOJEED ADEKUNLE OWOADE MOHAMMED AMBI-USI DANJUMA JAMES SHEHU ABIRIYI In the Court of Appeal In the Akure Judicial Division Holden at Akure ON THURSDAY, 14TH APRIL, 2016 Suit No: CA/AK/94/2014 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MR. LASISI LAWAL - Appellant(s) And OBAFEMI AWOLOWO UNIVERSITY ILE-IFE RATIO DECIDENDI - Respondent(s)

2 1 APPEAL - APPEAL AS OF RIGHT: When will appeal lie as of right from National Industrial Court to the Court of Appeal "Furthermore and in-spite of my personal reservations that the provision of Section 243 of the 1999 Constitution (as amended) is not so elegantly drafted, I hold myself bound by the decision of the Court of Appeal (Lagos Division) in the case of Lagos Sheraton Hotels and Towers V Hotel And Personal Services Senior Staff Association (2014) 14 NWLR (pt. 1426) 45 at 70 where the Court of Appeal (Lagos Division) followed the earlier decision of the full panel of this Court in the case of Coca- Cola (Nig.) Ltd & 2 Ors V. Akinsanya (2013) 1 ACELR 28, (2013) 18 NWLR Pt. 1386) 255 and held per Oseji JCA that: "As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal cases as they relate to matters upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from decisions of the National Industrial Court to this Court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this Court only." The learned Jurist continues: "There is presently no such Act of the National Assembly and until there is an enactment to that effect or a subsequent amendment of Section 243 of the Constitution, the National Industrial Court remains the final and ultimate Court in all causes or matters upon which it has jurisdiction except in decisions relating to questions of fundamental rights connected with chapter IV of the Constitution or in criminal causes."per OWOADE, J.C.A. (Pp. 8-10, Paras. E-A) - read in context

3 2 LEGISLATION - PUBLIC OFFICERS PROTECTION ACT: Whether the purpose of Section 2(a) of Public Officers Protection Act is the same as that of Section 49(1) of Obafemi Awolowo University (Transitional Provision) Act 2004 "Section 2(A) of the Public Officers Protection Act provides that: "Where an 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 alleged neglect or default in the execution of any such Act, Law, Duty or Authority, the following provisions shall have effect:- 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 a continuance of damage or injury, within three months next after the ceasing thereof." On the other hand, Section 49(1) of Obafemi Awolowo University (Transitional Provision) Act 2004 provides thus: "No suit shall be commenced against the university until at least three months after written notice of intention to commence same shall have been served on the university by the intending Plaintiff or his agent and such officer shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending Plaintiff and the relief which he claims." Clearly, Section 2(A) of the Public Officers Protection Act is a limitation law which mandates a Plaintiff to seek prompt remedy for the breach of his right as provided by law, otherwise his cause of action becomes extinguished. On the other hand, Section 49 of the OAU Act provides a condition precedent for the institution of an action against the University and its legal effect is to suspend the jurisdiction of the Court in the action of the Plaintiff until the condition precedent is fulfilled. Indeed to my mind, the domains of the above two legislations are not coextensive. It is rather amazing that the Learned Counsel for the Appellant could think otherwise. They are different legislations to serve different legal purposes. One is a limitation law, the other deals with pre-action notice.?the learned trial Judge was thus right when he held at page 5-6 of his judgment that: "The Public Officers Protection Act is clearly a limitation Act and the purpose of this Act has been restated in the case of Shamusideed Abolore Bakare v. Nigerian Railway Corporation (2007) 7-10 SC 1, limitation of action is the principle of law requiring the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the Plaintiff, proceedings shall not be brought after the period prescribed by law.'' (Dr. Charles Oladeinde Williams V. Madam Olaitan Williams (2008) 4-5 SC (Pt. 11) 253. The wordings of Section 49 of the Obafemi Awolowo University (Transition Provisions) Act 2004 can be described as pre-action notice requirement and these the Supreme Court have described as follows:- "Service of pre action notice on the party intended to be sued pursuant to a Statute is at best a procedural requirement and not an issue of substantive law on which rights of the Plaintiff depend. Mobil Producing Nig. Ltd. v. LSEPA (2002) 14 SCM 167.â? "The giving of pre action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow. Chief John Eze v. Cosmas Ikechukwu Okechukwu (2002) 14 SCM 105. "The requirement of pre-action notice where it is prescribed is known to have one rationale. It is to appraise the defendant before hand of the nature of the action contemplated and give him enough time to consider or re consider his position in the matter as to know whether to compromise or contest, Chief John Eze v. Cosmas Ikechukwu Okechukwu (Supra). From the foregoing it is obvious that the two acts do not operate for the same purpose making the argument of a conflict unlikely."per OWOADE, J.C.A. (Pp , Paras. B-E) - read in context

4 3 LEGISLATION - PUBLIC OFFICERS PROTECTION ACT: Whether the provisions of the Public Officer Protection Act applies to contract of employment "In determining Appellant's issue two, I recollect that my learned brothers of the Lagos Division of the Court of Appeal in the case of Agbefawo Aremu Tajudeen A. v. Customs, Immigration & Prisons Service Board (2010) 4 NWLR (Pt. 1184) 325 at 340 upheld the applicability of the provision of Section 2(A) of the Public Officers Protection Act to contracts of employment. Jauro, JCA who delivered the leading judgment in the case of Tajudeen v. C.I.P.S.B (Supra) reminded us that by the position of the law, what is to be examined is whether the facts constituting the complaint in the case arose out of a specific contract or a complaint against an act done in the performance or execution of a public duty. That in the two cases of Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 and N.B.C. v. Bankole (1972) NSCC (Vol.7) 220 at 226 the Plaintiffs instituted actions for unlawful termination of their employment outside 12 months as provided by the relevant Statutes. That the Supreme Court held that the actions were Statute barred and the defendants enjoyed the statutory privilege provided by S. 83 (1) of the Railway Act and Section 61 (1) of the Broadcasting Corporation Act, which are identical to the Public Officers (Protection) Act. See also the case of Forestry Research Inst. Of Nigeria v. Gold (2007) 11 NWLR (Pt. 1044) 1, where the Supreme Court held that the Public Officer (Protection) Act applies to contracts of employment."per OWOADE, J.C.A. (Pp , Paras. C-D) - read in context

5 MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court, Ibadan Judicial Division presided over by his Lordship Honourable Justice E. N. Agbakoba, delivered on 3rd February The Appellant as Claimant instituted this action against the Respondent in the Federal High Court Osogbo Division by a Writ of Summons on 25th of September The suit was transferred to the National Industrial Court of Nigeria in February The Appellant/Claimant claimed as follows in Paragraph 30 of the statement of claim: "1. A declaration that the Panel of enquiry that tried the Claimant on 14/6/2002 is wrongful unlawful ultravires null and void as the Claimant was not invited to defend any allegation of misconduct against him but as a witness, which is against the rule of fair hearing and natural justice, as is violates the right of the Claimant as protected by provisions of Constitution of Nigeria An Order setting aside the report of Investigating committee that tried the claimant on 30/8/2005 as the Investigating committee failed to 1

6 follow the rule of National Justice and fair hearing for its failure to produce witness, and document to prove allegation of misconduct against the Claimant. 3. A declaration that the purported suspension of the Claimant from duty as contained in letter reference R./PA.ATSE/2/LAWA/162 dated 18/2/2002 is wrongful, irregular, incompetent, ineffectual, unconstitutional and contrary to natural justice and therefore null and void. 4. An Order of this Honourable Court setting aside the purported letter to Termination of Appointment without Benefit contain in letter reference R/PA/ATSE/LAW/192 dated 21/2/ An Order of this Honourable Court reinstating the Claimant to his duty post as Senior Typist Officer in the Employment of the Defendant and to pay him all his Emolument, Salary, Allowance and other benefits due, including promotion, to the Claimant as a member of staff of the Defendant. From January 2002 until he attains the age of retirement as prescribed by law. 6. ALTERNATIVELY The sum of N9,000, (Nine Million Naira) being special and general damages suffered by the Plaintiff for termination of his appointment without benefit

7 by the Defendant. PARTICULARS OF SPECIAL DAMAGES. Salary Due January - September 2002 at N30,613 per month N306, Salary Due October - September 2003 at N31,37 per month N (sic) Salary Due October - September 2004 at N32,127 per month N385,524 Salary Due October - September 2005 at N32,885 per month N394,620 Salary Due October - September 2006 at N64, per month N768, Salary Due October - September 2007 at N65, per month N787,643,88 Leave Bonus for 2004, 2005 and years at N25, a year N77, Total Salary Due from January 2002 to September 2007 N3,018, Gratuity 34 Years Service at 292% N2,299, Pension for 5 Years at 614, Per Annum N3,071,817.2 Leave Bonus from 2002 to Years N136, Total N8,526,717.2 GENERAL DAMAGES N N9, Any other reliefs or order which the Court may deem fit to make in the circumstances of this case." For the purpose of the trial the Respondent joined issues with the Appellant by its Amended Statement of Defence of 11/11/2013. On 13th day of November 2013, the 3

8 Court below suo motu raised the issue of jurisdiction that is whether the suit is statute barred in view of the provision of Section 2 (a) of the Public Officers Protection Act and directed the parties to address it on the competence of the suit. Consequently, each of the Counsel formulated issue for determination and addressed the Court accordingly. The Appellant (as Claimant in the Court below) raised a sole issue for determination before the Court below as follows: "When a Court is exposed to two conflicting provisions of the law on the same issue one general and the other specific which of the statute should the Court invoke?" The Respondent on the other hand formulated its issue thus: "Whether or not the Court has jurisdiction to entertain this suit since this suit is statute-barred by virtue of the provisions of Public Officers Protection Act." The learned trial Judge adopted the issues as formulated by parties in her Ruling and dismissed the Appellant's Suit on the ground that the suit was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act.

9 The Appellant at first filed a Notice of Appeal on 4

10 12/02/2014 and by order of this Honourable Court filed an Amended Notice of Appeal containing two (2) grounds of appeal on 25/3/2015. The relevant briefs of argument are as follows: 1. Appellant's brief of argument dated and filed on 15/9/2014 but deemed filed on 17/3/2015- Settled by J.A.Tijani ESQ. 2. Respondent's brief of argument (Incorporating Notice of Preliminary Objection) dated 11/6/2015 and filed on 10/11/2015- Settled by Gbadamosi Oluyinka Esq. 3. Appellant's reply brief of argument dated and filed on 1/3/ Settled by J.A. Tijani Esq. THE PRELIMINARY OBJECTION. Learned Counsel for the Respondent raised a preliminary objection, that this Honourable Court lacks the jurisdiction to entertain this appeal. He submitted that the Appellant does not enjoy any right of appeal against the Ruling of the lower Court by virtue of Section 243 (2), (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He reproduced the said constitutional provision and argued that a party will only enjoy a right of appeal as of right against a decision of the National Industrial Court on questions of: i.

11 Fundamental rights as contained in chapter 4 of the Constitution and ii. Criminal causes or matters which is within the jurisdiction of that Court. He submitted that the present appeal does not fall into the above category and therefore the appeal is incompetent. He referred to the decision of the Court of Appeal in Lagos Sheraton Hotels and Towers V. Hotel and Personal Services Senior Staff Association (2014) LPELR per S.C.D Oseji JCA and submitted that the appeal of the Appellant is neither a criminal appeal nor does it hinge on a breach of fundamental human rights. That the Appellant herein has only complained about the ruling of the lower Court which considered the question whether the action of the Claimant Appellant is statute barred. He submitted that this Honourable Court does not have the jurisdiction to entertain this appeal, on the ground that the appeal does not fall under the category of matters over which this Court can assume jurisdiction by virtue of Section 243 of the 1999 Constitution. He also referred to the case of A.G. Anambra V A.G. Federation (2007) 12 NWLR (Pt. 1047) 4 at 80, on the established principles for 6

12 the exercise of jurisdiction by a Court of law. He argued, referring to the case of Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 525 that once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law. The Court is bound to strike out the appeal. Learned Counsel for the Appellant on the other hand insisted that ground one of Appellant's Notice of Appeal complained about fair hearing and thereby within the purview of the provision of Section 243 (2) of the 1999 Constitution. In determining the preliminary objection by the Respondent, it is pertinent to reproduce the provision of Ground 1 of the Appellant's Amended Notice of Appeal together with its particulars. They read. GROUND OF APPEAL The learned trial Judge failed to properly consider the issue of conflicting statutes on the same issue for determination before the Court thereby arrived at a wrong conclusion that the Appellant's suit was statute barred by virtue of Section 2 (a) of Public Officers Protection Act, which occasioned a miscarriage of justice. PARTICULARS. 7

13 ''Section 2A of Public Officers Protection Act provides that action against a public officer must be brought within 3 months of occurrence of the act complained of while Section 49 of Obafemi Awolowo University (Transition Provisions) Act 2004 provides that No Suit shall be commenced against the University until at least Three months after written notice of intention to commence the same shall have been served on the University by the intending Plaintiff or his agent ----." Clearly, the above quoted ground one of the Appellant's Amended Notice of Appeal cannot by any stretch of imagination be considered to be a ground pertaining to the provisions of the Fundamental Human Rights in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as envisaged under Section 243 of the said Constitution. Furthermore and in-spite of my personal reservations that the provision of Section 243 of the 1999 Constitution (as amended) is not so elegantly drafted, I hold myself bound by the decision of the Court of Appeal (Lagos Division) in the case of Lagos Sheraton Hotels and Towers V Hotel And Personal Services Senior Staff Association (2014) 8

14 14 NWLR (pt. 1426) 45 at 70 where the Court of Appeal (Lagos Division) followed the earlier decision of the full panel of this Court in the case of Coca-Cola (Nig.) Ltd & 2 Ors V. Akinsanya (2013) 1 ACELR 28, (2013) 18 NWLR Pt. 1386) 255 and held per Oseji JCA that: "As presently constituted therefore, the law is that a litigant who is not satisfied with the decision of the National Industrial Court can only appeal as of right where such decision relates to questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or in criminal cases as they relate to matters upon which the National Industrial Court has jurisdiction. As to other causes or matters not so specified appeal shall only lie from decisions of the National Industrial Court to this Court as may be prescribed by an Act of the National Assembly and such appeal shall be with leave of this Court only." The learned Jurist continues: "There is presently no such Act of the National Assembly and until there is an enactment to that effect or a subsequent amendment of Section 243 of the Constitution, the National 9

15 Industrial Court remains the final and ultimate Court in all causes or matters upon which it has jurisdiction except in decisions relating to questions of fundamental rights connected with chapter IV of the Constitution or in criminal causes." In the instant case, I do agree with the Learned Counsel for the Respondent that the appeal of the Appellant is neither a criminal appeal nor does it hinge on a breach of fundamental human rights. That the Appellant only complained about the ruling of the lower Court which considered the question whether the action of the Claimant is statute barred. In the circumstance, this Honourable Court indeed does not possess the necessary jurisdictional vires to entertain this appeal. The Respondent's preliminary objection succeeds and it is accordingly upheld. THE APPEAL Learned Counsel for the Appellant nominated two (2) issues for determination of the appeal. They are: "1. When a Court is exposed to two (2) conflicting provisions of law on the same issue, one general the other specific, which of the statute should the Court invoke? 2. Whether the action brought by the Appellant being an action 10

16 based on contract of employment is Statute barred having not been brought within 3 months of the termination of his appointment as required by Section 2(a) of Public Officers Protection Act. Learned Counsel for the Respondent also formulated two issues for determination as follows: i. Whether there is any conflict between Section 2(a) of Public Officers Protection Act ("POPA") and Section 49 of Obafemi Awolowo University (Transitional Provision) Act. ii. Whether the action brought by Appellant, being an employment is Statute barred, having action based on contract of not being brought within 3 months of the termination of his appointment as required by Section 2(a) of the Public Officers Protection Act. Learned Counsel for the Appellant on issue one said that there are two provisions that regulate the time an action can be brought against the Respondent in the suit in the Court below. The first, is Section 2(a) of the Public Officers Protection Act and the second is Section 49 of the Obafemi Awolowo University (Transition Provisions) Act He submitted that the provisions of the above two laws cannot be complied with at the

17 same time by an aggrieved complainant. He submitted that the Provision of Public Officers Protection Act was made generally for All Public Officers irrespective of where he works, but that the provisions of Obafemi Awolowo University (Transition Provisions) Act was made specifically for the Respondent only, and not applicable to all the Universities in Nigeria, which made the provision of the law specific to the Respondent. He submitted that when a Court is exposed to two provisions of law on the same issue one general and the other specific, this Court will fall on the specific provision in the event of apparent conflict. He referred to the case of Hon Justice E. O. Araka v. Hon. Justice Don. Egbue (2003) 7 SCNJ page 114 at 124. He argued that once there is a specific law on the subject, then that law would have an overriding effect on a general legislation. This, he said, is because, the intention of the legislature in enacting specific provision and giving it effect over and above a general provision gave rise to this appeal. He referred to the cases of C.A.C. v. Governing Council I.T.F. (2014) All FWLR (Pt. 716) 560 at 570; Momah v. Spring

18 Bank Plc (2009) 3 NWLR (Pt. 1129) 55 3; Madumere & Anor v. Okwara & Anor (2013) 6-7 (Pt. 1) 48 at He urged us to hold that the provisions of Public Officers Protection Act is in conflict with the provisions of Obafemi Awolowo University (Transition Provision) Act and that the provisions of Public Officers Protection Act is not applicable to the Appellant's case. That Appellant's Suit is not Statute barred. Learned Counsel for the Respondent on the other hand submitted that the learned trial Judge was right when his Lordship held at page 78 of the Record that there is no conflict between the provisions of the two laws. This is so as both Acts are not the same and distinctly provide for entirely different purposes. Each Act stands on its own. Respondent's Counsel submitted that a careful perusal of Section 2(a) of the Public Officers Protection Act reveals that the Section provides for the time limit for instituting an action against a public officer. On the other hand, Section 49 of Obafemi Awolowo University (Transitional Provision) Act provides for a condition precedent to be fulfilled before the commencement of an action

19 against Obafemi Awolowo University. He submitted that the service of pre-action notice is a condition precedent to the valid institution of a matter in Court and it stands alone as a fundamental procedure to be followed before instituting an action against the concerned agency or persons. In other words, the non-service of a pre-action notice merely puts the jurisdiction of a Court on hold pending compliance with the pre-condition. The effect of a condition precedent does not in any way conflict with limitation law. Counsel submitted that the principle of limitation law requires the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of Law within the time limited by Law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. This is the purport of Section 2(a) of Public Officers Protection Act. Learned Counsel for the Respondent submitted that Appellant's submissions at Paragraphs of the Appellant's brief of argument that there exists a conflict between a specific and general provisions of 14

20 law is misconceived and ought to be discountenanced. That it is the duty of the Court to apply the provisions of the law validly made by a competent constitutional authority such as the Obafemi Awolowo (Transitional Provision) Act and the Public Officers Protection Act. He submitted that the proper way to construe the Provisions of Section 49 of the Obafemi Awolowo University (Transition Provision) Act 2004 and Section 2(a) of the Public Officers Protection Act, which apply to the case is to hold that, under Section 49 of the OAU Act, the right and cause of action of the Appellant did not accrue until after he has given the Respondent the notice of intention to institute an action, which is a condition precedent to exercising any right of action. After referring to the cases of P.N. Udoh Trading Co. Ltd v. Abere (2001) 11 NWLR (Pt. 723) 114 at 129 and Niger Care Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt. 1093) 498, Respondent's Counsel submitted that the learned trial Judge was right to have held separately that the Appellant fulfilled the condition precedent to the action under Section 49 of the Obafemi Awolowo University Act but that his

21 action was caught by Section 2A of the Public Officers Protection Act. He submitted that none of the cases of Hon. Justice E.O. Araka v. The Honourable Justice Don Egbue (Supra); Madumere v. Okwara (supra) and Moumah v. Spring Bank Plc (Supra) referred to in support by Appellant's Counsel is helpful to this appeal. Section 2(A) of the Public Officers Protection Act provides that: "Where an 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 alleged neglect or default in the execution of any such Act, Law, Duty or Authority, the following provisions shall have effect:- 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 a continuance of damage or injury, within three months next after the ceasing thereof." On the other hand, Section 49(1) of Obafemi Awolowo University (Transitional Provision) Act 2004 provides thus: "No suit shall be commenced against

22 the university until at least three months after written notice of intention to commence same shall have been served on the university by the intending Plaintiff or his agent and such officer shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending Plaintiff and the relief which he claims." Clearly, Section 2(A) of the Public Officers Protection Act is a limitation law which mandates a Plaintiff to seek prompt remedy for the breach of his right as provided by law, otherwise his cause of action becomes extinguished. On the other hand, Section 49 of the OAU Act provides a condition precedent for the institution of an action against the University and its legal effect is to suspend the jurisdiction of the Court in the action of the Plaintiff until the condition precedent is fulfilled. Indeed to my mind, the domains of the above two legislations are not coextensive. It is rather amazing that the Learned Counsel for the Appellant could think otherwise. They are different legislations to serve different legal purposes. One is a limitation law, the other deals with pre-action notice. The 17

23 learned trial Judge was thus right when he held at page 5-6 of his judgment that: "The Public Officers Protection Act is clearly a limitation Act and the purpose of this Act has been re-stated in the case of Shamusideed Abolore Bakare v. Nigerian Railway Corporation (2007) 7-10 SC 1, limitation of action is the principle of law requiring the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the Plaintiff, proceedings shall not be brought after the period prescribed by law.'' (Dr. Charles Oladeinde Williams V. Madam Olaitan Williams (2008) 4-5 SC (Pt. 11) 253. The wordings of Section 49 of the Obafemi Awolowo University (Transition Provisions) Act 2004 can be described as pre-action notice requirement and these the Supreme Court have described as follows:- "Service of pre action notice 18

24 on the party intended to be sued pursuant to a Statute is at best a procedural requirement and not an issue of substantive law on which rights of the Plaintiff depend. Mobil Producing Nig. Ltd. v. LSEPA (2002) 14 SCM 167.â "The giving of pre action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow. Chief John Eze v. Cosmas Ikechukwu Okechukwu (2002) 14 SCM 105. "The requirement of pre-action notice where it is prescribed is known to have one rationale. It is to appraise the defendant before hand of the nature of the action contemplated and give him enough time to consider or re consider his position in the matter as to know whether to compromise or contest, Chief John Eze v. Cosmas Ikechukwu Okechukwu (Supra).â From the foregoing it is obvious that the two acts do not operate for the same purpose making the argument of a conflict unlikely." In the instant case, the Learned Counsel for the Appellant could not be right to have suggested that the two 19

25 provisions considered above are conflicting, that one is general, the other specific and for the application of the specific to prevail over the general. Issue one is resolved against the Appellant. On issue two, Learned Counsel for the Appellant submitted that the Appellant's action was brought for breach of contract of employment and the Public Officers Protection Act does not apply to cases of breach of contract. He referred to the cases of Federal Government of Nigeria and Ors v. Zebra Energy Ltd (2002) 12 SCNJ 330 at ; Osun State Government v. Dalami (Nigeria) Ltd (2007) 3 SCNJ 28 at 38; Nigeria Port Authority v. Construzioni General Farsura Cogenfar SPA & Anor (1974) All N.L.R 463 and urge that the appeal be allowed. Learned Counsel for the Respondent on the other hand submitted that the action of the Appellant is statute barred having not been brought within 3 months of the determination of the Appellant's contract of employment. He argued that the position of the law is that provisions of limitation of action protects a public authority where the act complained of is one which the public authority has the duty to make

26 or is by Statute bound to make. He referred to the cases of N.B.C. v. Bankole (1972) NSCC (Vol. 7) 220 at 226 and Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 and submitted that the Respondent is clearly protected by virtue of Section 2(A) of the Public Officers Protection Act, since the contract of employment with the Appellant is such that the Respondent is duty bound to make by virtue of Section 5 (1)(b) of the Obafemi Awolowo University (Transition Provision) Act. Respondent's Counsel submitted referring to the case of Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649 at 659 that "Where an action is Statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed." He submitted that the case of Osun State Govt. v. Dalami (Nig.) Ltd (Supra) cited by the Appellant was decided in relation to termination of a management lease agreement between Plaintiff and the Defendant and therefore not applicable to the facts and circumstances of this case. Also, that the

27 case of FGN v. Zebra Energy Ltd (Supra) cited by the Appellant dealt with a revocation of oil prospecting license which is distinct from the claims of the Appellant in this case. Finally, said Counsel, the case of NPA v. Construzioni General Farsura Cogefar SPA (Supra) referred to is not on all fours with the present case which bothers on masterservant relationship while the NPA's case is one of building contract for the second Apapa Wharf Extension involving an independent contractor under a specific contract. In determining Appellant's issue two, I recollect that my learned brothers of the Lagos Division of the Court of Appeal in the case of Agbefawo Aremu Tajudeen A. v. Customs, Immigration & Prisons Service Board (2010) 4 NWLR (Pt. 1184) 325 at 340 upheld the applicability of the provision of Section 2(A) of the Public Officers Protection Act to contracts of employment. Jauro, JCA who delivered the leading judgment in the case of Tajudeen v. C.I.P.S.B (Supra) reminded us that by the position of the law, what is to be examined is whether the facts constituting the complaint in the case arose out of a specific contract or a complaint against

28 an act done in the performance or execution of a public duty. That in the two cases of Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 and N.B.C. v. Bankole (1972) NSCC (Vol.7) 220 at 226 the Plaintiffs instituted actions for unlawful termination of their employment outside 12 months as provided by the relevant Statutes. That the Supreme Court held that the actions were Statute barred and the defendants enjoyed the statutory privilege provided by S. 83 (1) of the Railway Act and Section 61 (1) of the Broadcasting Corporation Act, which are identical to the Public Officers (Protection) Act. See also the case of Forestry Research Inst. Of Nigeria v. Gold (2007) 11 NWLR (Pt. 1044) 1, where the Supreme Court held that the Public Officer (Protection) Act applies to contracts of employment. In the instant case, the learned trial Judge was right to have relied on the cases of Nigercare Development Co. Nig. Ltd v. Adamawa State Water Board LEPLR 1997 SC and Bakare v. NRC (Supra) to have held, first that: "The cause of action arose on the 21st February 2006, the Claimant instituted this action on 28th February 2007, twelve months and seven days after the 23

29 cause of action accrued." And, secondly to conclude that Applying Section 2A of Public Officers Protection Act to this date, it is undoubtedly clear that the cause of action is caught up by the Statute of limitation, on the authority and in line with the cases cited above, this Court lacks jurisdiction to hear and determine on the ground that the case is Statute barred... the suit is dismissed." Issue two is also resolved against the Appellant. Having resolved the two issues in this appeal against the Appellant, the appeal lacks merit and it ought to be dismissed. However, as a result of my decision on the Respondent's Notice of Preliminary Objection, this Court lacks jurisdiction to entertain this appeal. The appeal is struck out. I make no order as to costs. MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal is incompetent and should be struck out. It is struck out. JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. I agree that this Court lacks the jurisdiction

30 to entertain this appeal. I therefore strike it out. 25