IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 27TH DAY OF JANUARY, 2016
CA/C/263/2011
BETWEEN
MR. BATHELOMEW ODEY ONIGA .................. Appellant
AND
1. GOVERNMENT OF CROSS RIVER STATE
2. ATTORNEY-GENERAL (COMMISSIONER FOR JUSTICE, CROSS RIVER STATE) .... Respondents
MAIN JUDGMENT
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of Honourable Chief Judge Okoi I. Itam of the Cross River State High Court, Calabar delivered on the 22nd day of June, 2011, whereby the Appellant's case which was commenced by Originating Summons in Suit No. HC/134/2010 was dismissed for being statute-barred.
ISSUE FOR DETERMINATION:
(1) "Whether there was no evidence on Record to show that the Governor acted Ultra vires his power thereby making the claims of the Appellant bordering on breach of Contract of Employment.
(2) Whether the Judgment of the trial Court is not a nullity, the Court having being divested of jurisdiction by virtue of Section 254 (C) (1) (a) of the 1999 Constitution (as altered) ."
On his own part, the Respondent only adopted Issue No. 2 of the Appellant and formulated one new Issue for determination thus:
(1) "Whether the Respondents can be protected by the Public Officers (Protection) Law of Cross River State, 2004, Cap P 17 as Amended in 2007 , in view of the circumstances of this case.
(2) Whether the Judgment of the trial
Court is not a nullity, the Court having been divested of jurisdiction by virtue of Section 254 (C) (1) (a) of the 1999 Constitution (as altered)."
In arguing Issue No. 1 above on whether there was no evidence on Record to show that the Governor acted Ultra vires his power thereby making the claims of the Appellant bordering on breach of contract of employment justifiable, Learned Appellant's Counsel submitted that the trial Judge failed to consider the material averments and Exhibit pleaded before reaching a conclusion and referred to the clear provisions of Section 8 of the Fire Service Law of Cross River State, 2004. The Appellant, he maintained, was compulsorily retired after 35 years of service while he was just 54 years of age contrary to Section 8 (1) of the Fire Service Law of Cross River State, 2004. See Buhari vs. Obasanjo (2003) 13 NWLR (Pt.941) 1, Amadi vs. NNPC (2006) 10 NWLR (Pt 674) 51, Kato vs. CBN (1991) 9 NWLR (Pt 214) 126.
According to Learned Counsel, the position of the Law is now well established that the Public Officer Protection Law can only cover acts of relevant Public Officers done within the confines of their public duty in accordance with the relevant Statutory or Constitutional Authority bestowed on them. See Ibraham vs. JSC (1998) 14 NWLR (Pt. 584) 1 at 32 per Iguh JSC. Ekeogu vs. Aluri (1990) 1 NWLR (Pt. 120) 345.
From the above, Learned Appellant Counsel Stated that it is in evidence that the Governor acted in total disregard to the Statutory provisions and cannot be said to have acted within the confines of his public duty. As an action founded on a breach of Contract of Employment, it is excluded from the Public Officer Protection Act placing reliance on the authority of Oduko vs. Government of Ebonyi State (2004) 13 NWLR (Pt. 98l) - 503.
He then urged the Court to hold and find that the present action is justicable and that the Governor acted outside his statutory duty and thus cost the Protection accorded him under the Public Officers Protection Law.
He urged the Court to resolve this Issue in their favour.
On Issue No. 2, on whether the Judgment of the trial Court is not a nullity, the Court having been divested of jurisdiction by virtue of Section 254 (C) (1) (a) of the 1999 Constitution (as altered), Learned Appellant Counsel submitted that at the time the Learned trial Judge delivered it Judgment on the 22nd day of June, 2011, it had been divested of jurisdiction to hear and determine the substantive suit as the cause of action borders on Contract of Employment. See Section 254 (c) (1) (a) of the 1999 Constitution.
The cause of action he contended is predicated on the Appellant's Contract of Employment which he alleged was breached by his employers, when they failed to follow the Provisions of the statue that encapsulated the terms and conditions of his Employment in the Fire Service Rule of Cross River State.
Consequently, Learned Appellant's Counsel then urged the Court to hold that the Judgment of the High Court of Cross River State delivered in this case, culminating to this appeal, is a complete nullity as the Court was divested of jurisdiction to hear and determine as constituted before it. In conclusion, he urged the Court to allow the appeal and set aside the Judgment of the Lower Court in view of the following:
1. "The Public Officer Protection Law is not Applicable to bar an action instituted outside the limitation period of six months where the Public Officer acts outside his public duty provided by statute.
2. The Judgment of the trial Court was delivered when the Court has been divested of jurisdiction to hear and determine a cause of action bordering on the subject matter of Contract of Employment and Condition of Service."
On their own part, the Respondents formulated two Issues for determination as herein before Stated. In arguing Issue No. 1 as to whether the Respondents can be protected by the Public Officer (Protection) Law of Cross River State 2004, Cap P17 as amended in 2007 in view of the circumstances of this case, the Respondents'ýLearned Counsel cannot be heard to say or contend that the Governor acted Utra vires. Learned Counsel submitted that pursuant to the Establishment Circular No. 63216/51/x of the 20th day of August, 1999, the Federal Government also prescribed that every Public Officer shall retire from the service on attaining the age of 60 years or 35 years of service whichever comes first. See D. G. S. S vs. Briggs (2007) All FWLR (Pt. 344) 53, Nwaogwugwu vs. President of the Federal Republic of Nigeria (2007)ALL FWLR (Pt. 358) 1151.
On the meaning of the word SHALL as Stated in Section 8 (1) of the Fire Service Law of Cross River State which the Appellant Counsel contended denotes mandatory and an obligation and admits no discretion, Learned Respondents' Counsel submitted that it is not in all cases that the word SHALL means mandatory especially as it is used in Section 8 (1) of the Fire Service Law of Cross River State, 2004. See Amokaodo vs. I. G. P (1999) 6 NWLR (Pt.607) 467, Oju Local Government and Ors vs. INEC (2007) LPELR 8235 (CA), Umeanadu vs. Attorney General Anambra State (2008) 9 NWLR (Pt, 1091) 175, Amadi vs. N. N. P.C (2000) 10 NWLR (Pt 674) 76, Abudullahi vs. the Military Administrator and Ors (2009) 15 NWLR (Pt. 1165) 417. Whether the word SHALL is used in a mandatory or diversity sense would depend on the circumstances of the case, see Atungwu and Anor vs. Ochekwu (2013) LPELR - 20935 (sc), Ifezue vs. Mbadugha (1984) 1 SCNLR 427, (1984) 5 SC 79 at 135. Learned Respondent Counsel then submitted that if the provisions of Section 8 of the Fire Service Law were mandatory as canvassed by the Appellant then the addendum that it shall be in line with the Civil Service Rules would not have been added to that same Section. And so the argument and submission of the Appellant on this Issue cannot stand.
On the allegation that the Respondent acted Ultra vires, no mention was made on how the Respondent acted Ultra vires and to so allege merely without substantiating it is of no moment. See Balogun vs. Amubikanhan (1985) 3 NWLR (Pt. 11) 27. Yilara vs. Federal Ministry of Works (2013) LPETR- 20772 (CA).
On whether the Public Officer (Protection) Act is applicable to this case, Learned Respondent Counsel contended that the relationship between the Appellant and the Respondent in this case is not that of an ordinary contract, but Contract of Employment - a master and servant relationship which the Public Officer (Protection) Law applies. See Ibrahim vs. JSC (Supra), Bakare vs, NRC (2007) 12 MJSC 76, NBC vs. Bankole (1972) 7 NSCC 22O, Bello Nasir vs. CSC, Kano State (2010) NSCQR 267. Therefore, it is Learned Counsel submission that the Public Officers (Protection) Law applies to Contract of Employment as in this case. He then urged the Court to resolve this Issue in favour of the Respondents.
In Issue No. 2 which is on whether the Judgment of the trial Court is not a nullity, the Court having been divested of jurisdiction by virtue of Section 254 (c) (1) (a) of the 1999 Constitution (as Altered), Learned Respondent Counsel submitted that the authorities cited by the Appellant in this regard are not applicable.
He Stated that by Section 11 (2) of the National Industrial Act which is made pursuant to Section 254 (c) (1) (a), 3rd alteration of the Constitution of the Federal Republic of Nigeria 1999, the Section 11 (2) of the National Industrial Act provides that:
"Nothing in Sub-section (1) of this Section shall affect the jurisdiction and the powers of the Federal High Court, the High Court of a State or the Federal Capital Territory, Abuja to continue to hear and determine cause or matters which are part-heard before the commencement of this Act and any proceedings in any such causes or matter, not determined or concluded at expiration of one year after the commencement of this act shall abate."
From the above, the Learned Counsel submitted that it is settled that though the National Industrial Court is vested with the jurisdiction to hear and determine cases "relating to or connecting with any labour employment, trade unions, industrial relations and matters arising from work place, condition of service including health safety, welfare of labour, employment, worker and matters there to or connected therewith..." any matter which were still pending in the High Court which were part heard before the commencement of the Act shall continue to be heard by the said High Court within one year after the commencement of the 3rd alteration of the Federal Republic of Nigeria, 1999 Constitution.
He maintained that the 3rd alteration of the Constitution of the Federal Republic of Nigeria, 1999, commenced on the 4th day of March, 2011 and not 10th day of January, 2011 as contended by the Appellant.
The matter appealed against was part heard as at the 23rd day of February, 2011. Judgment was delivered on the 22nd day of June, 2011, about three months after the commencement of the 3rd alteration. It is on that basis that Learned Counsel submitted that as at the time the Cross River State High Court delivered the Judgment in this appeal, she still had jurisdiction to hear and determine the matter appealed against, the suit having been part-heard and concluded within one year after the commencement of the 3rd alteration Act of the Constitution of the Federal Republic of Nigeria 1999, going by the National Industrial Court Act.
On the whole, he urged the Court to dismiss the appeal and uphold the Judgment of the lower Court.
In resolving the Issues in this appeal, it would be appropriate to consider Appellant's Issue No.1 and Respondents' Issue No.1 together since they both raise similar Issues. The crux of the Appellant's contention in this appeal is that the lower Court failed to consider the material averments and Exhibits presented at the Court before arriving at a conclusion. Basic among them is that the Appellant was retired from service contrary to Section 8 of the Fire Service Law of Cross River State 2004 which States:
"8 (1) Every Fireman shall on appointment be enlisted to service for not more than 41 years or until he is 60 years, whichever comes first, and for such other period as may be fixed by the Civil Service Commission to be reckoned in all cases from the day on which he has been approved for service."
What it therefore means is that he was compulsorily retired after 35 years of service while at the age of 54 inspite of the mandatory use of the word 'SHALL' in Section 8 (1) of the Fire Service Law of Cross River State 2004, However, it should be noted that the word 'SHALL' when used in an enactment does not always connote a mandatory expression. In the case of Amokaodo vs. IGP (1999) 6 NWLR (Pt. 607 ) 467, the Court held that the principle governing the use of the word 'SHALL' in a legislative sentence is that it is generally imperative or mandatory and In its ordinary meaning, 'SHALL' however, is sometimes intended to be directory only and in that case, it is equivalent to 'may' and will be construed as being merely permissive. Also in the case Oju Local Government and Ors vs. INEC (2007) LPELR - 8235 (CA), the Court held that it is settled that the word 'SHALL' when used in an enactment is capable of bearing many meanings.
It may be implying futurity or implying a mandate or direction or giving permission" per Uwais CJN. See also Umeanadu vs. Attorney General Anambra State (2008) 9 NWLR (Pt. 1091) 175, Amadi vs, NNPC (2000) 10 NWLR (Pt. 674) 76, Abdullahi vs. The Military Administrator and Ors (2009) 15 NWLR (Pt. 1165) 417.
Whether the word 'SHALL' is used in a mandatory or a directory sense would depend on the circumstances of the case and would also depend upon the consequences of holding whether they are or not. It is after it has been determined that the statute is mandatory or directory that the Court would then consider if necessary, the legal consequences that would now form the classification given to the statute.
I would now examine the provisions of Section 8 (1) of the Five Service Law 2004 as herein before Stated bearing in mind what the Learned Authors of Halsbury's Laws of England, 3rd edition where at page 435 it was Stated:
"No universal rule can be laid down for determining whether provisions are mandatory or directory, in each case, the intention of the legislature must be ascertained by looking at the whole scope of the statute and in particular, at the importance of the provision in question in relation to the general object to be secured,"
A careful reading of Section 8 (1) of the Fire Service Law of Cross River State, 2004, clearly shows that if the provisions of Section 8 were mandatory as canvassed by the Appellant, then the addendum that it shall be in line with the civil service Rules would not have been added to the last part of the same Section. It is on the basis of that, that I hold the view that the word 'SHALL' as used in Section 8 of the Fire Service Law of Cross River State 2004 is not used in a mandatory sense and so the Appellant's argument on this Issue does not hold.
The Appellant has alleged that the Respondents acted Ultra vires powers when he signed and approved the retirement of the Appellant. The word "Ultra vires " means beyond or above the power conferred. It is an act which is invalid since it has been done in excess of authority conferred by Law in excess of the powers. The Appellant's Affidavit evidence in support are found in pages 4-6 of the Record of proceedings. According to Appellant Counsel, the Respondents having acted Ultra vires their powers have lost the protection available to them as Public Officers. The Appellant's Affidavit evidence in Paragraphs 2,3 and 4 made averments as to his date of birth as 20th April, 1953, date of Appointment as 15th day of July, 1974, date of Appointment into the Fire Service. His service is therefore regulated by the Fire Service Law and also the Civil Service Rules of Cross River State as embodied in Section 8 of the Fire Service Law 2004 of Cross River State. As a result therefore, it cannot be said that the Respondents acted Ultra vires their powers in approving the retirement of the Appellant or as having lost the protection under the Public Office Protection Law. In the case of Offoboche vs. Ogoja Local Government Area (2001) 16 NWLR (Pt. 739) 458, the Supreme Court held that:
"The burden is on the Plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or that he had not acted in error of Judgment or in honest excess of his responsibility will not amount to bad faith or abuse of office."
Per Ayoola JSC, see also Ekeogu vs. Aliri (1990) 1 NWLR (pt. 120) 345.
On the submission by Appellants Counsel that as an action founded on contract, the Public Officers Protection Law does not apply, it must be appreciated that this relationship is not an ordinary contract but that of a contract of employment, that is a master and servant relationship in which the Public Officers (Protection) Law applies. See Ibrahim vs. JSC (supra).
It is a well established principle of law which requires no citation of cases that a master is at common Law entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. This principle has dominated judicial decisions to such an extent, that it was applied unreflectingly to cases where the right to dismiss at will ought to be rejected. In Oki vs. Taylor Wall Tamjor (Nig) Ltd, (1965) 2 ALL NLR 15. In that case, the Plaintiff was suspended for misconduct and subsequently offered to be paid his salary up to a certain date and at the same time after recovering their keys banned him from their office and premises. He bought an action claiming damages and salary leave pay due in lieu of leave period. The defence was that defendants were fully justified in dismissing him in view of his misconduct, inefficiency and fraudulent for practices.
Therefore, an employer has a undisputed right to dismiss or discharge his servant. If this right was invalidly exercised, the action is to be founded on damages for wrongful dismissal. Contracts of employment like all other contracts, their creation and termination are both subject to the general principles governing the law of contract. See Olaniyan vs. University of Lagos (1985) NWLR (Pt. 9) 599.
On the basis of the above, I therefore resolve this Issue No. 1 in favour of the Respondents and hereby hold that the Public Officers (Protection) Law applies to this contract of employment contrary to the submission of the Appellants.
In resolving Issue No. 2 i.e whether the Judgment of the trial Court is not a nullity, the Court having been divested of jurisdiction by virtue of Section 254 (c) (1) (a) of the 1999 Constitution (as altered). In resolving this Issue, it would be appropriate to State Section 254 (c) (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria which provides:
"Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such jurisdiction as may be conferred upon it by the Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause or matters.
1. Relating to or connected with any Labour, Employment, Trade Union, Industrial Relations and matters arising from workplace condition of service including Health Safety, welfare of labour, Employee, worker and matters incidental to or connected therewith."
By Section 11 (2) of the National Industrial Act, which is made pursuant to Section 254 (1) (a) 3rd alteration of the Constitution of the Federal Republic of Nigeria, 1999, the said Section 11 (2) of the National Industrial Act provides that:
"Nothing in Sub-section (1) of this Section shall affect the jurisdiction and the powers of the Federal High Court of the State or the Federal Capital, Territory, Abuja, to continue to hear and determine cause or matters which are part-heard before the commencement of this Act and any proceedings in any such cause or matters, not determined or concluded at the expiration of one year after the commencement of this act, shall abate."
From the above, it is settled that "though the National Industrial Court is vested with the jurisdiction to hear and determine cases relating to or connecting with any labour, employment, trade unions, industrial relations and matters arising from work place, condition of service, including health safety, welfare of labour, employee, worker and matters related thereto or connected therewith..." any matter or matters which were part-heard before the commencement of the Act shall continue to be heard by the said High Court within one year after the commencement of the 3rd alteration of the Constitution of the Federal Republic of Nigeria, 1999.
From the above, the 3rd alteration of the Constitution of the Federation Republic of Nigeria, 1999 commenced on the 4th day of March, 2011. The matter appealed against was part heard as at the 23rd day of February, 2011 i.e barely 7 weeks after the commencement of the 3rd alteration of the Constitution of the Federal Republic of Nigeria, 1999. The Judgment was delivered on the 22nd day of June, 2011 about 3 months after the commencement of the 3rd alteration. The conclusion to be derived from this is that as at the time the Cross River State High Court delivered the Judgment in dispute on appeal, she still had the jurisdiction to hear and determine the matter appealed against, as the suit was part-heard and concluded within one year after the commencement of the 3rd alteration act of the Constitution going by the Provisions of Section 11(2) of the National Industrial Court Act, contrary to the Appellants assertion that the 3rd alteration of the Constitution was on the 10th of January, 2011. On the basis of the above, I therefore hold that the Judgment of the trial Court is not a nullity as the trial Court has not been divested of jurisdiction to entertain and determine same. I shall and hereby resolve this Issue in favour of the Respondents.
Having resolved the two Issues distilled by parties in favour of the Respondents, this appeal therefore fails as it has no merit. It is accordingly dismissed, The Judgment of the Lower Court is hereby affirmed.
No orders as to cost,
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:
Having read before now, the judgment prepared and just delivered by my learned brother, the Hon. Justice PAUL OBI ELECHI, JCA,I cannot but concur with the reasoning and conclusion reached therein, to the effect that the instant appeal is devoid of merits.
Hence, it is my privilege to adopt the said reasoning and conclusion reached in the judgment as mine, and accordingly dismiss the appeal. The judgment of the High Court of Cross River State, Calabar Judicial Division, coram Okoi I. Itam, Chief Judge, delivered on June 22, 2011, is hereby affirmed by me.
No order as to cost.
ONYEKACHI AJA OTISI, J.C.A.:
I had the privilege to read, in advance, a draft copy of the lead Judgment just delivered by my learned Brother, PAUL OBI ELECHI, JCA, in which he dismissed the appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal and I abide by the orders in the leading Judgment.
REPRESENTATION
EMMANUEL SANI, ESQ. For Appellant
AND
MRS AMA EKPO, ESQ.
SENIOR STATE COUNSEL, MINISTRY OF JUSTICE For Respondent