IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD
DATE: MARCH 26, 2021 SUIT NO: NICN/AWK/06/2018
BETWEEN
Mr. Francis Otiono - Claimant
AND
1. Delta State Civil Service Commission
2. The Honourable Attorney General, Delta State - Defendants
REPRESENTATION
C.J. Odogwu with L. Gwuda for the claimant
M.O. Agwere, Assistant Director, Delta State Ministry of Justice with R.N. Emekpe, Chief State Counsel, Delta State Ministry of Justice for the defendants
JUDGMENT
INTRODUCTION
1. The claimant took up an originating summons against the defendants dated 26th February 2018 and filed the same date. By order of Court granted on 27th November 2020 the claimant amended his originating summons praying for the determination of the following questions:
1) Whether the decision to dismiss the claimant was taken in good faith bearing in mind the recommendations of the various panels of enquiry.
2) Whether the lucid provision of Delta state public service rules 2001 (section 4 rule 04402) was complied with in reaching a decision of dismissal and/or Whether giving (sic) the failure of the 1st defendant to comply with the dictates of Regulation 55 of the Delta State Civil Services Commission Regulations, 1978 (as applicable to Laws of Delta State Cap Cl0) particularly subsection (d) (vi), the 1st defendant can dismiss the claimant and more particularly that even the Police Investigation Report of 22nd November 2018 over the criminal complaint against the claimant exonerated the claimant.
2. The claimant then prayed for the following reliefs:
1) A Declaration that the purported letter of dismissal Ref No: C48/T2/189 which informed our client (sic) that he has been dismissed and the order to the effect of dismissal by the 1st defendant is invalid, null and void, illegal, unlawful and of no effect ab initio.
2) An order directing the defendants, their assigns, privies and agents to forthwith reinstate the claimant as on officer of the Delta State Civil Service with full rights and privileges.
3) An order directing the 1st defendant to promote the claimant to his supposed rank which is Chief Store Officer I SGL 14
4) Any other or further consequential order or orders of this Honorable Court as the circumstance of this case may require in the interest of justice.
3. Given that this is an originating summons and the defendants raised a preliminary objection, I shall start off with the said preliminary objection.
THE PRELIMINARY OBJECTION OF THE DEFENDANTS
4. In praying that this suit be struck out for want of jurisdiction, the defendants filed a preliminary objection supported by the grounds for the application, a counter affidavit and a written address urging that the suit of the claimant be struck out for want of jurisdiction on the following grounds:
i. That the action is statute barred by virtue of the provisions of the Public Officers Protection Law Cap P23, Laws of Delta State of Nigeria, 2006.
5. To the defendants, the brief facts of this case are that the claimant and one Timothy Ogboru were fingered in the case of alleged exchange of money and forged stamps of the Department of Examinations and Standards in a bid to granting approval to Victory Academy International School, Warri and Holy Ghost International School, Ovwian for 2013 SSCE enrolment; that the Board of Inquiry in the course of its investigation discovered that there was alteration of figures and differences in the colour of ink on the clearance sheet of one of the schools mentioned; that the Examination Officer of one of the schools was in communication with the claimant to carry out the forgery; that the claimant and one Ogboru Timothy were queried and they responded to the queries; that the claimant and Ogboru Timothy owned up to the allegations and pleaded for mercy in falsification of records contrary to PRS 04401 (xx) which is an act of serious misconduct; that the claimant in Exhibit ‘A2’ admitted the allegations against him and pleaded for mercy. That an 8-man Disciplinary Board of Inquiry looked into the matter and that the claimant and Ogboru Timothy pleaded guilty and implored that justice be tempered with mercy in view of the economic hardship; that the Civil Service Commission, to which the Report of the Disciplinary Board of Inquiry submitted, approved the claimant’s dismissal from the Delta State civil service with effect from 29th March 2016; and claimant was duly communicated.
THE SUBMISSIONS OF THE DEFENDANTS ON THEIR PRELIMINARY OBJECTION
6. The defendants submitted a sole issue for determination in their preliminary objection, to wit: whether the (sic) action is statute barred by virtue of the provisions of the Public Officers Protection Law, Cap P23, Laws of Delta State of Nigeria, 2006. As a preliminary issue, the defendants submitted that it is trite that the issue of jurisdiction is so fundamental that once it is raised, it must be resolved first before any further step can be taken in a proceeding in which it is raised. See Adeyemi v. Olakunri (1999) 73 LRCN 3606 at 3614-3615 paragraphs H-A, Ajayi (sic) Ltd v. Airline Management Support Limited (2003) FWLR (Pt. 156) 943 at 962-963 paragraphs G-D; Elebanjo v. Dawodu (2006) All FWLR (Pt. 328) 604 at 640-641 paragraphs A-B.
7. The defendants went on that a Court is only competent to exercise jurisdiction where the following conditions are satisfied:
i) The Court is properly constituted as regards members and qualification of the bench and no member is disqualified for one reason or another;
ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction and;
iii) The case comes before the Court by due process of law and upon the fulfillment of any conditions precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.
See Rivers State Government of Nigeria and anor v. Specialist Konsult (Swedish Group) (2005) ALL FWLR (Pt. 254) 875 at 899 paragraphs E-H; Madukolu v. Nkemdilim (1962) 1 ALL NLR 587; Sken Consult (Nigeria) Ltd v. Ukey (1981) I S.C 6. That it is the claim of the Plaintiff that determines the jurisdiction of the Court in entertaining a suit. See Olorunlobaoju vs Dopamu (2008) ALL FWLR (Pt. 411) 810 at 837.
8. On the sole issue for determination, the defendants narrated section 2 (a) of the Public Officers Protection Law Cap P23, Laws of Delta State of Nigeria, 2006 thus:
2 (a) Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance of or execution or intended execution of Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect -
(a) the action, prosecution, or proceedings shall not lie or instituted unless it is commenced within three months next the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof. See Ibrahim v. Lawal & ors (sic) (2015) LPELR- 24736.
9. To the defendants, the period of time prescribed by a statute of Limitations begins to run the moment a cause of action accrues to the person entitled to it that, it is of utmost importance to ascertain the exact date of accrual of cause of action; that a cause of action consists of every facts which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. That it is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim for the reliefs or remedy being sought; that it is every fact which is material to be proved to entitled the claimant to succeed or all those things necessary to give a right to relief in law or equity. See Ogoh v. ENPEE Industries Ltd (2004) 17 NWLR (Pt. 903) 449; Williams v. Williams (2004) 17 NWLR (Pt. 1095) 364; Duzu v. Yunusa (2010) 10 NWLR (Pt. 1201) 80 and Nigerian Ports Authority v. Beecham Pharmaceutical PTE Ltd (2012) 18 NWLR (Pt. 1333) 454. That it consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage- Savage v. Uwechia (1975) 2 SC 213; Adeosun v. Jibesin (2001) 11 NWLR (Pt. 734) 290, NEPA V. Olagunju (2005) 3 NWLR (Pt. 913) 602; Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606. That a cause of action accrues when the cause of action becomes complete so that an aggrieved party can begin and maintain an action. Mobil Oil (Nig) Plc v. Malumfashi (1995) 7 NWLR (Pt. 406) 246; Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539. See also Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 17.
10. That the claimant’s complaint in the main is against his dismissal from the Delta State Public Service; that the principal relief or claim is for “declaration that the purported letter of dismissal Ref. No. C48/T2/188 which informed our client that he has been dismissed and the order to the effect ab initio”. That the letter of dismissal Ref No. C48/T2/188 is the claimant’s exhibit ‘C’ annexed to his originating summons and same is dated 25th May 2016; that the claimant’s Originating Summons is dated 26/02/2018; that applying the principle as stated by the Supreme Court in Ibrahim v. Lawal (sic) (supra) that in order to determine the period of limitation, one has to look at the Writ of Summons and the Statement of Claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed and this can be done without taking oral evidence from witnesses; that if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.
11. It is the defendants’ submission that the wrong of the defendants the claimant is complaining about is the letter of dismissal Ref. No. C48/T2/188 which is dated 25/06/2016; that the claimant’s cause of action commenced on the 25/06/2016 the day the dismissal letter was issued; that the claimant took out this suit on 26/02/2018; that it is submitted that the time on the Originating Summons is beyond the period allowed by the limitation law. See Ofili v. Civil Service Commission (2008) All FWLR (Pt. 434) 1620 at 1634 paragraphs A-B.
12. That the claimant by his own showing in paragraph 2 of the affidavit in support of the Originating Summons stated thus “that I am a victim of unlawful dismissal from the Delta State Civil Service”; that he went further to state in paragraph 18 “that sometime 25th May 2016, I received a letter of dismissal with Ref. No. C48/T2/188. Attached as Exhibit D is copy of the said letter.” That the Originating Summons is dated the 26/02/2018; that it is submitted by the defendant that this is outside the three months period set out by the limitation law.
13. That for section 2 (a) of the Protection Act to avail a party, it must be shown that the person against whom the action is commenced is a public officer and act done by the person in respect of which the action was commenced must be an act done in pursuance of execution of any law or any public duty or authority. See Ofili v. Civil Service Commission (supra). That it is submitted that the defendants in this suit are public officers and claimant by his own showing has shown that his dismissal was a disciplinary measure carried out on him by the defendants pursuant to the powers given to them by the Delta State Public Rules in effect the defendants (sic) action was done (sic) in pursuance or execution of a law and public duty or authority.
14. The defendants continued that they are not unmindful of the proviso to the Public Officers Protection Law to the effect that “or in case of a continuance of damage or injury, within three months next after the ceasing thereof”. That the law is that generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading the cause of action. Abiodun v. Attorney General, Federation (2007) 15 NWLR (Pt.1057) 359. That also, where there is continuance of damage is such that gives rise to a fresh cause of action every time it occurs limitation law will not apply to bar action on the fresh cause of action. The Shell Petroleum Development Company of Nigeria Ltd v. Amadi (2010) 13 NWLR (Pt. 1210) 82; Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572 at 593-594 H-B; INEC v. Ogbadibo Local Government & ors (2015) LPELR- 24839 (SC); The Kano State House of Assembly & ors v. Alhaji Muhammadu Folalu Umar (2014) LPELR- 24008 (CA).
15. The defendants submitted that the act of the dismissal of the claimant was done once and for all as conveyed in the letter of dismissal Ref No. C48/T2/188 which is dated 25/06/2016 and there is nothing continuous about it; that the action of the defendants complained about by the claimant was in the nature of a “permanent damage” and not a continuous one; that the concept of continuous damage or injury is thus inapplicable in the circumstances.
16. That when an action becomes statute barred, the plaintiff loses the right to sue to enforce the cause of action by judicial process; that this is because the period of time laid down by the limitation law for instituting such an action has lapsed. See Attorney General of River State v. Attorney General of Bayelsa State & anor (2013) All FWLR (pt. 699) 1087 at 1102 paragraphs B – D. That the claimant failed to institute the action within 3 months as prescribed by section 2 (a) Public Officers Protection Law; that the claimant therefore has lost the right to make good his case in the Courts because it is statute barred.
17. In conclusion, the defendants urged the Court to strike out the suit for want of jurisdiction in that the action is statute barred by virtue of the provisions of the Public Officers Protection Law, Cap P23, Laws of Delta State of Nigeria. 2006.
THE SUBMISSIONS OF THE CLAIMANT IN OPPOSITION TO THE PRELIMINARY OBJECTION
18. The claimant submitted that the preliminary objection of the defendant (sic) is misconceived as even though he concedes that by the provision of section 2 of the public officers protection law Cap p23 Laws of Delta State 2008, the complaint of the claimant ought to be statute barred but same will not apply here as there are exceptions to this section; that the public officers (protection) law was not designed to protect mischievous officers but rather the intent was to protect public officers who diligently and responsible carried out their statutory duties. See A.G. Rivers v. A.G. Bayelsa (2013) 3 NWLR (pt. 1340) 123 at 145 Para G.
19. That the defendants has (sic) copiously argued in their written submission that the said public officers protection law gags the Court of her jurisdiction as the suit was filed after 3 months; that it is trite that Courts guard their jurisdiction jealously but it is claimant’s submission, a position the Supreme Court has over time held, that any such enactment which takes away the rights of citizens accessing the Court are to be construed narrowly against anyone claiming his benefit before the Court. That the claimant by virtue of section 240 of the Constitution of Nigeria 1999 (as amended) has guaranteed right of access to the Court to challenge the legality of his dismissal hence the provisions of section 2 of the provisions (sic) of Public Officers Protection Law are not absolute. See Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & ors 2008 LPELR CA/A/195/M/05.
20. The claimant continued that the defendant (sic) can only rely on same (sic) where the officer or office acted in good faith in the execution of his public duty. See IGP v. Olatunji 21 NLR 52. That a cursory look at the supporting affidavit to the originating summons particularly paragraph 15, 16 and 17, the claimant deposed and stated the motive driving the dismissal which again confirms that indeed the said decision to dismiss the claimant was taken in bad faith; that nowhere in the counter affidavit of the defendants was the said allegation or averment of the victimization of the claimant by the 1st defendant denied. The claimant then urged the Court to hold that facts not denied are facts admitted. See Section 124 (1) of the Evidence Act, 2011. It is therefore submitted by the claimants that in the face of glaring exceptions that can be found in this case, the Public Officers (Protection) Law can not avail the defendants. The claimant then urged the Court to so hold.
21. The claimant went on to refer to Court to paragraph 18 of the supporting affidavit to the claimant’s originating summons which the defendants failed to deny in their counter affidavit; that the claimant despite being unlawfully dismissed from service is yet to receive salary and his entitlements for the months worked for– April and May 2016, hence making the injury suffered continuous.
22. The claimant added that the Court will find on the face of the originating summons that the claimant contends that going by the dictates of the regulation of the Civil Service Commission Regulations 1978 (as applicable to Delta State, Laws of Delta State Cap C10 particularly sub- section (d) (vi), the 1st defendant acted outside the colour of her office as the 1st defendant lacks powers to amplify or increase the recommendation without requesting for further investigation or hearing directly from the claimant. That this being the case, the defendants cannot at this point attempt to hide under the canopy of Public Officers (Protection) Law to evade answering to the injustice meted on the claimant whose young and dependent family has been thrown into harrowing conditions as a result of this dismissal.
23. In conclusion, the claimant urged the Court to dismiss the defendant’s (sic) preliminary objection for lacking merit on grounds canvassed by the claimant in his answer to the preliminary objection. See Anozie v. AGF (2008) 10 NWLR (pt. 1095) 278 at 290 – 291; Nwankwere v. Adewunmi (1967) NWLR (sic); AG Rivers v. AG Bayelsa (supra).
THE SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS
24. For the originating summons, the claimant submitted two issues for determination, to wit:
1) Whether the decision to dismiss the claimant was taken in good faith bearing in mind the recommendations of the various panels of enquiry.
2) Whether the lucid provision of Delta State Public Service Rules 2001(Section 4, Rule 04402) was complied with in reaching a decision of dismissal and/or whether giving the failure of the 1st defendant to comply with the dictates of Regulation 55 of the Delta State Civil Service Commission Regulation, 1978 (as applicable to Delta State Laws of Delta State Cap C10) particularly subsection (D) (VI), the 1st defendant can dismiss the claimant.
25. On issue (i), the claimant submitted that the decision to dismiss him by the 1st defendant was taken in bad faith considering that the 1st defendant lacked the capacity to amplify the recommendations of the two boards of enquiries without reverting to the boards for reconsideration; that based on Delta State Public Service Rules 2001 Rules 04306 (ix), the Court is urged to hold that the Delta State Public Service Rules 2001 section 4 Rule 04402 and Regulation 55 (VI) of the Civil Service Regulation 1978 (as applicable to Delta State) Cap C10 were not complied with and thus hold that the purported dismissal was done in bad faith.
26. Regarding issue (2), the claimant submitted that the Delta State Public Service Rules 2001 (Section 4, Rule 04402) and Regulation 55 of the Delta State Civil Services (sic) Commission Regulation, 1978 (as applicable to Delta State, Laws of Delta State Cap C10) particularly subsection (d) (vi) was not followed; that the Commission simply dismissed the claimant; that claimant appeared before two Boards of Inquiry that made recommendations of lesser punishment but when the reports were taken to the 1st defendant, the 1st defendant simply amplified the punishment and handed out an order of dismissal without affording the claimant his right to be heard before the Commission; that even before the two Boards of Inquiry, the claimant was not afforded to (sic) right to question the witnesses even though none of the witnesses made any indicting statement on the claimant. See Rules 04306 (vii).
27. To the claimant, in a further reading of Rule 04306 (ix), the Court will find that assuming without conceding that the allegation of forgery of stamp falls under falsification of record none of the two Boards at any time prescribed dismissal but firstly, demotion by one rank, and secondly, just by a written warning; that the 1st defendant therefore cannot on its own increase or amplify the penalty from a written warning to that of dismissal without turning the said report back to the Board for further inquiry. That based on Rule 04306 (ix), the Court is urged to hold that the Delta State Public Service Rules 2001 Section 4 Rule 04402 and Regulation 55 (VI) of the Civil Service Regulation 1978 (as applicable to Delta State) Cap C10 were not complied with. That the innocence of the claimant was not tested in any Court of competent jurisdiction yet he was summarily dismissed despite lighter recommendations of the two Boards of Inquiry; that given the circumstance of this case, the Court is urged to hold that the claimant enjoys the presumption of innocence until proven guilty and which of course never availed the claimant as he was hurriedly dismissed.
28. The claimant continued that a further look at his supporting affidavit particularly paragraph 16 and 17 will show what was driving the motive to get him out of the service, hence the victimization and eventual dismissal. See Iderima v. Rivers State Civil Service Commission (2005) NWLR (pt. 951) 378 at 408 – 410 Para F – C. That the procedure prescribed by law in disciplining the claimant was not followed in their desperate haste to boot him out of the service.
29. In conclusion, the claimant urged the Court to grant all the reliefs as sought in this application for the above reason amongst others as canvassed above; and to hold that this case has merit and to enter judgment in favor of the claimant.
THE SUBMISSIONS OF THE DEFENDANTS IN RESPECT OF THE ORIGINATING SUMMONS
30. The defendants submitted two issues for determination in respect of the originating summons, namely:
1) Whether the decision to dismiss the claimant was taken in good faith bearing in mind the recommendations of the various Panels of Enquiry.
2) Whether the lucid provision of the Delta State Public Service Rules 2001 (Section 4, Rule 04402) was complied with in reaching a decision of dismissal and/or whether giving the failure of the 1st defendant to comply with the dictates of Regulation 55 of the Delta State Civil Service Regulation 1978 made pursuant to the Civil Service Commission Law Cap C10 Laws of Delta State 2006 particularly subsection (D) (VI), the 1st defendant can dismiss the claimant.
31. It is the defendants submission that the claimant’s arguments under issue (2) are misconceived and misrepresents the position of the law; that Regulation 55 of the Delta State Civil Service Regulation 1978 made pursuant to the Civil Service Commission Law Cap C10 Laws of Delta State 2006 particularly subsection (d) (vi) provides thus:
(d) In the event of a Committee being appointed as stated in subparagraph (c) of this paragraph –
(vi) The Commission, after consideration of the report of the Committee, may, if it is of the opinion that the report should be amplified in any way or that further investigation is desirable, refer back to the Committee for further investigation and report, or may itself hear evidence by summoning the parties or witnesses involved before the Commission, or examine any documentary evidence.
The defendants went on to cite subsection (c) (i) of Regulation 55 which provide thus:
(c) After receiving the report or statement together with the comments and recommendation referred to in subparagraph (b) of this paragraph, the Commission may –
(i) decide the issue depending on the clarity of the facts disclosed.
32. It is further submitted that the 1st defendant acted pursuant to the clear and lucid provisions Section 4 Rules 04402 and 04306 (x) of the Delta State Public Service Rules 2001 which state thus:
04402: Disciplinary procedure for serious misconduct shall be in accordance with Rules 04302 to 04306.
04306 (x): If upon considering the report of the board together with the evidence and all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately taken.
33. That in the dismissal or termination of the appointment of an employee on grounds of serious misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, that the Rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, or that the employee accepted that he committed the act after investigation. See University of Calabar v. Essien (1996) 10 NWLR pt. 477 pg. 225; Olatunboson (sic) v. NISER Council (1988) 3NWLR pt. 80 pg. 25; Yusuf v. UBN (1996) 36 NWLR pt. 457; Gunda v. University of Maiduguri (2014) LPELR – 23351. That the allegations were disclosed to the claimant as deposed to in paragraph 6 (c) of the defendants’ counter affidavit; that the claimant was given a fair hearing as deposed in paragraph 6 (d) of the defendants’ counter affidavit and that the Panel believed the claimant committed the offence after hearing witnesses as deposed in paragraphs 6 (d), (e), (f), (g) and (h) of defendants’ counter affidavit.
34. Regarding issue (1) of the claimant’s issue for determination, the defendants submitted that the issue of bad faith by the 1st defendant in dismissing the claimant does not arise; that the claimant was found culpable for the offence of ‘serious misconduct’ by the two Boards of Inquiry, and section 4 rules (sic) 04401 of the Delta State Public Service Rules defined serious misconduct as “a specific act of very serious wrong - doing and improper behavior which can be investigated and proven.” See also Nwobosi v. African Continental Bank Limited (1995) LPELR- 2121. That it’s (sic) a settled common law principle that an employer has the liberty or right to dismiss the employee thereof summarily for serious or gross misconduct especially where, as in this case such serious or gross misconduct undermined the relationship of trust and confidence supposedly existing between the employer and the employee. See Bassey v. Civil Service Commission, Cross River State & ors (2010) LPELR - 3858.
35. . In conclusion, the defendants urged the Court to dismiss the claimant’s claims as same is (sic) lacking in merit, baseless, frivolous and an attempt to misled (sic) this Court and an unpardonable waste of valuable judicial time.
COURT’S DECISION
36. I have carefully considered the processes and submissions of the parties. Given that the defendants filed a preliminary objection, I will need to resolve that first before considering the merit of the case.
37. The defendants’ preliminary objection seeks an order of Court striking out this suit for want of jurisdiction. By jurisdiction, it is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the Court is controlled or circumscribed by the statute creating the Court itself. Or it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. All of the above touch on the legal authority of the Court to adjudicate in the matter. Drexel Energy and Natural Resources Ltd & ors v. Trans International Bank Ltd & ors (2008) LPELR - 962 (SC).
38. In the case of Katol Investment Limited v. UACN Property Development Company Plc (2014) LPELR- 22858 ((CA), the Court of Appeal emphasized that:
It has been stated by this Court and the Supreme Court in a plethora of cases that the issue of jurisdiction is very fundamental and central to adjudication. Jurisdiction is a crucial question of competence and a defect in it snuffs out the competence of the Court. Where a Court lacks jurisdiction over a matter, it lacks the vires to entertain and deliberate on it. Jurisdiction is therefore the life-line of every judicial proceeding before any Court or tribunal without which the entire proceedings, trial, findings, orders and pronouncement are rendered futile, invalid, null and void ab initio however brilliantly they may have been conducted. See also Achebe & ors v. Achebe (2016) LPELR - 42149 (CA); Emeka v. Okadigbo & ors (2012) 7 SC pt 1; Adama v. State (2017) LPELR – 42266 (SC); Ikosi Industries Ltd v. Lagos State Government & ors (2017) LPELR – 41867 (CA); CPC & anor v. Ombugadu & anor (2013) LPELR- 21007 (SC).
39. The grounds for the defendants preliminary objection in this suit are that the action is statute barred by virtue of the provisions of the Public Officers Protection Law, Cap P23, Laws of Delta State of Nigeria, 2006. It is the defendants’ submission that the wrong of the defendants the claimant is complaining about is the letter of dismissal Ref. No C48/T2/188 which is dated 25/06/2016; that the claimant’s cause of action commenced on the 25/06/2016, the day the dismissal letter was issued; that the claimant took out this suit on 26/02/2018; that the time on the originating summons is beyond the period allowed by the limitation law. Ofili v. Civil Service Commission (supra); Attorney General of Rivers State v. Attorney General of Bayelsa State & anor (supra); INEC v. Ogbadibo Local Government & ors (supra); The Kano State House of Assembly & ors v. Umar (supra).
40. In reaction, the claimant submitted that the preliminary objection of the defendant (sic) is misconceived as even though he concedes that by the provision of section 2 of the Public Officers Protection Law, Cap P23, Laws of Delta State 2008 the complaint of the claimant ought to be statute barred, same will not apply here as there are exceptions to this section; that the law is not designed to protect mischievous officers but rather the intent was to protect Public Officer (sic) who diligently and responsibly carried out their statutory duties. A.G. Rivers v. A.G. Bayelsa (supra). To the claimant, his stand against corrupt practices of inflation of contract sums, payment for jobs not done and his friendship with one Ogboru Timothy, a colleague, was a problem for him; that as a result he was made a target for dismissal and same was made in bad faith and despite the recommendations of the Boards of Inquiry set up by Delta State Government to investigate claimant. See paragraph 15, 16 and 17 of claimant’s affidavit in support of originating summons.
41. In Lafia Local Government v. The Executive Government Nasarawa State & ors (2012) LPELR - 20602 (SC), the rationale and application of the Public Officers Protection Act/Law is that –
The limitation law sets out limitation periods for different classes of cases. They provide that certain action shall be filed within a specified time after accrual of the cause of action. The main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. If a claim is brought a long time after the event in question, there is a strong likelihood that evidence which was available ealier may have been lost and memories of witnesses may have faded. It would be unfair to allow a defendant face such a claim where proof and defence would be almost impossible. Where actions are brought against public officials, they must be brought quickly, that is, within 3 months after the cause of action accrues. This is designed to protect public officers who are very busy people from being distracted or submerged in a sea of litigation at times at the instance of professional litigants. Where a plaintiff’s action was filed outside the time allowed by the limitation law, the plaintiff would still have a cause of action but sadly one that cannot be enforced. See Sani v. Okene LG. 2005 14 NWLR pt 944 p. 60; Eboigbe v. NNPC 19994 3 NWLR pt. 347 p. 649; Utih v. Egorr 1990 5 NWLR pt. 153 p. 771. When a cause of action is complete, time begins to run for the purpose of the limitation law. The person who can sue and the person to be sued are easily identified. The aggrieved party is expected to file his action within the time stipulated by the limitation law. For example, if the time stipulated by the limitation law is 3 months, the action must be filed before 3 months from the date the cause of action accrued …
42. Section 2 (a) of the Public Officers Protection Law Cap P23, Laws of Delta State of Nigeria 2006 provides that: “2. Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance of or execution or intended execution of any law or 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 proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof.” Aside claimant’s capitulation in the opening paragraph of his answer to the defendants’ preliminary objection, his lame assertions that he was cajoled into acceptance of guilt so that the matter would be done with or his victimization for being a friend to Ogboru Timothy, in my candid view, remain speculative and unsubstantiated. It is clear from the above submissions that the claimant’s originating summons filed on 26/02/2018 was way beyond 3 months after the date of his dismissal on 25/06/2016 when the cause of action arose. I so find. The claimant’s action having been caught by the provisions of section 2 (a) of the Public Officers Protection Law Cap P23 Laws of Delta State of Nigeria, 2006 is thus statute barred. I so hold.
43. The law however, permits the Court to proceed and treat the matter on its merits should its decision on the preliminary objection is overturned on appeal. See Order 18 Rule 2 (2) and (3) NICN Rules 2017 and Feed & Food Farm (Nigeria) Ltd v. NNPC (2009) LPELR- 1274 (SC). The issues for determination in the claimant’s originating summons are whether the decision to dismiss the claimant was taken in good faith bearing in mind the recommendations of the various panels of enquiry; whether the provisions of Delta State Civil Service Rules 2001 section 4 Rule 04402 thereof was complied with in reaching the decision to dismiss the claimant and/or whether the 1st defendant can validly dismiss the claimant given 1st defendant’s non- compliance with Regulation 55 of the Delta State Civil Services (sic). Commission, 1978 (as applicable to Laws of Delta State, Cap C10, particularly sub-section (D) (vi) thereof.
44. It is the claimant’s contention that 1st defendant’s decision to dismiss him was taken in bad faith considering that 1st defendant lacked the capacity to amplify the recommendations of the two panels of enquiry that investigated the claimant especially going by Rule 04306 (ix) of Delta State PSR, 2001; that Rule 04402 of Delta State PSR and Regulation 55 (iv) of Civil Service Regulation 1978 were not complied with by 1st defendant in dismissing the claimant.
45. In his affidavit evidence in support of the originating summons, the claimant stated that sometime in 2013, he assisted someone in getting approval for the person’s school; that the table was however, turned around to allege that he forged stamp and collected monies from the said school; that he had on the instructions of then Director, Sir Ekeke (now retired), produced stamp for the office which after the production had a character defect on it, hence the need to produce another one; that while the proper stamp was put in use, the one with character defect was shelved in the store.
46. The claimant went on that he was encouraged to admit to the allegations in order to rest the matter, but unfortunately the 1st defendant recommended his dismissal; that the two Boards of Inquiry did not recommend his dismissal; that his Counsel informed him and he verily believed that the allegation of forgery of stamp does not in any way constitute an offence as contemplated in Rule 04401 (i-xxii) of the Delta State PSR 2001. That owing to his stand against corrupt practices of inflation of contract sum and payment for jobs not done; and also because of his friendship with one Ogboru Timothy, a colleague, this too became a problem for him, and he was made a target for dismissal and same was done in bad faith.
47. In reaction, the defendants maintained that the issue of bad faith by the 1st defendant in dismissing the claimant does not arise; that the claimant was found culpable for the offence of serious misconduct by the two Boards of Inquiry by his use of fake stamp of Examination and Standards Department to stamp the clearance form of a school in the 2013 WAEC/NECO clearance exercise. That the offence committed by the claimant and one Ogboru Timothy falls under Rule 04401 (xx) of Delta State PSR which is falsification of records, a serious misconduct which penalty by Rule 04406 (a) of the Delta State PSR, is dismissal.
48. Regarding whether the decision to dismiss the claimant was taken in good faith bearing in mind the recommendations of the various panels of enquiry, the law as established, is that recommendations or proposals have been held by Courts not to confer entitlements. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (pt. 208) 39, which relying on PENGASSAN v. Mobil Nig. Unltd. (2013) 32 NLLR (pt. 92) 243 NIC, held that proposals do not confer entitlements.
49. Black’s Law Dictionary, Tenth Edition at page 1464 defines ‘Recommendation’ as ‘A specific piece of advice about what to do, especially when given officially; a suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious.’ Oxford Advanced Learners Dictionary, 7th Edition at page 1216 defines ‘Recommendation’ as ‘an official suggestion about the best thing to do’; while Roget’s The New Thesaurus, Third Edition at page 809 defines ‘Recommendation’ as ‘an opinion as to a decision or cause of action: advice, counsel’. And Straud’s Judicial Dictionary of Words and Phrases, Volume 3, Seventh Edition, 2006 at pages 2309 and 2310, citing Clause 19 of the scheme made under the Endowed Schools Act, 1869 ( c. 56) and the case of R. v. Christ’s Hospital Governors (1917) 1 K.B. 19 states that ‘Recommendation’ in a Will implies a freedom to follow or not to follow, to accept or to reject the recommendation according to one’s discretion. (Betram v. Clemens (1955) L. M. D. 941).
50. In Aremo II v. Adekanye & ors (2004) LPELR - 544 (SC), the Apex Court held that:
The government is not bound to accept the recommendations of the Commission (of inquiry). When therefore, it rejected them, it acted within its exclusive authority.
51. By the clear provisions of the law as elucidated in the authorities above, it is my humble view that claimant’s leaning on mere recommendations simplicita cannot compel or foist any reprive or right on him. Therefore, interrogating the defendant’s decision to dismiss the claimant in terms of whether same was done in good faith or not, bearing in mind the recommendations of the two panels of inquiry, tantamounts to an exercise in futility and same is unsustainable. I so hold.
52. On whether the defendants complied with section 4 of Rule 04402 of Delta State PSR and Regulation 55 of the Delta State Civil Services (sic) Commission Regulation, 1978 particularly subsection (d) (vi) thereof in reaching a decision to dismiss the claimant, it is pertinent to examine the said rules before a determination can be made.
53. Regulation 55 of the Delta State CSR 1978 made pursuant to the Civil Service Commission Law Cap C10 Laws of Delta State 2006 particularly subsection (d) (vi) thereof provides thus:
(d) In the event of a Committee being appointed as stated in subparagraph (c) of this paragraph-
(vi) The Commission, after consideration of the report of the Committee, may, if it is of the opinion that the report should be amplified in any way or that further investigation is desirable, refer back to the Committee for further investigation and report, or may itself hear evidence by summoning the parties or witness involved before the Commission or examine any documentary evidence.
54. In interpretation of statutes or rules, where the word “or” is used, it means the authority vested with power in the said law or rule has the capacity to choose among the options presented in the law or rule. The word “or” is used to introduce another possibility. The word “or” is, prima facie and in the absence of some restraining context, to be read as disjunctive and not as “id est”. (Re Diplock (1941) Ch. 253 at 260-1). See Stroud’s Judicial Dictionary of Words and Phrases, Seventh Edition, Volume 2, page 1881. Under Regulation 55 (d) (vi) of the Delta State CSR 1978, particularly in (vi) thereof the use of the word ‘or’ means the commission vested with authority in the law/rules has the capacity to choose among the options presented in the law or rule. The claimant’s citation of section 4 Rule 04402 of PSR and Regulation 55 (d) (vi) of Delta State Civil Service Commission Regulation, 1978 in his submissions/recitals but digression to Rules 04303 and 04306 (vii) in his arguments is contradictory and inapplicable to the questions he raised for consideration in this suit. I so hold.
55. Section 4 Rule 04402 of the Delta State PSR 2001 provides thus:
Disciplinary procedure for serious misconduct shall be in accordance with Rules 04302 to 04306
56. In Iyeghe v. Ahmadu Bello University, Zaria (2015) LPELR - 40874 (CA), the Court of Appeal held thus:
The law is that, generally, a body exercising powers which are merely advisory, deliberative or investigative nature or character or whose deliberations do not have legal effect until confirmed by another body or which is involved only in making a preliminary decision which is subject to approval by the appointing authority will not be held to be acting in a judicial capacity and it is at best an administrative panel. Military Governor, Oyo State v. Adekunle (2005) 3 NWLR (pt. 912) 294…
57. I must make a quick point here. The claimant was dismissed on 25/06/2016 and his cause action was effective 25/06/2016. As such, the claimant was dismissed prior to the coming into effect of the Police Investigation Report dated 22nd November 2018. So, the argument of the claimant where he brought in the Police Investigation Report dated 22nd November 2018 way into the suit to question his dismissal cannot be sustained as the said Report did not determine the cause of action as at when it arose. See section 83 (1) and (2) of the Evidence Act, 2011 and Obiuwevbi v. CBN (2011) 7 NWLR (pt. 1247) 465 SC. The Supreme Court in Arinze v. FBN Ltd (2004) 12 NWLR (Pt. 888) 663 held that an employer can dismiss an employee where the accusation against such employee is gross misconduct involving dishonesty bordering on criminality. To the Court, it is, therefore, erroneous to contend that once a crime is detected, the employer cannot dismiss the employee unless he is tried and convicted first. See also Olarenwaju v. Afribank (Nig) Plc (2001) 13 NWLR (Pt. 731) 691 SC, Egbe v. NUT (2008) 5 NWLR (Pt. 1081) 604 CA and ATA Poly v. Maina (2005) 10 NWLR (Pt. 934) 487 CA.
58. The Supreme Court in Ziideeh v. RSCSC (2007) LPELR - 3544 (SC); (2007) 3 NWLR (pt. 1022) 554; (2007) 1-2 SC 1, held that “it is now firmly settled that the statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct, provided of course, the employee is given the opportunity of fair hearing.” The concurring judgment of His Lordship Hon. Justice Rhodes - Vivour, JSC (as he then was) in Imonikhe v. Unity Bank Plc (2011) LPELR - 1503 (SC); (2011) 12 NWLR (pt. 1262) 624 SC is quite emphatic. In the words of His Lordship:
Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.
59. I do not therefore see how the termination of the claimant’s employment can be said to be invalid, null and void, illegal or unlawful before the law. In effect, relief (1) fails and is accordingly dismissed. That being the case, relief (2) seeking reinstatement of claimant and relief (3) praying for restoration of claimant to his supposed (speculative) rank and relief (4) all hinged on the success of relief (1) as claimed cannot stand. I so find. The claimant’s case in terms of his dismissal has no merit in law whatsoever. I so hold.
60. On the whole, the claimant’s case fails. It is hereby dismissed.
61. Judgment is entered accordingly. I make no order as to costs.
Hon. Justice J.I. Targema, PhD.